HomeMy WebLinkAboutC26750 CO7 and General Release Agreement Whitewater Bridge at PortolaCITY OF PALM DESERT
PUBLIC WORKS DEPARTMENT
STAFF REPORT
REQUEST: Approve Construction Change Order No. 7 to Contract No.
C22870B with Granite Construction Company and a General
Release Agreement with Wedgwood Glen Association for the
Whitewater Bridge at Portola Avenue (Project Number 647-04)
SUBMITTED BY: Mark Greenwood, P.E.
Director of Public Works
CONTRACTOR: Granite Construction Company
38000 Monroe Street
Indio, California 92203-9500
DATE:
July 12, 2007
CONTENTS: Construction Change Order No. 7, With Attachments
Status of Construction Change Orders
General Release Agreement
Vicinity Map
Recommendation:
By minute motion, approve:
1. Construction Change Order No. 7 to Contract C22870B with
Granite Construction Company for construction of a soundwall
and the deletion of various work in an amount not to exceed
$560,811.00 required for the construction of the Whitewater
Bridge at Portola Avenue;
2. The General Release Agreement in the amount of $50,494.00
with the Wedgwood Glen Association for compensation for
restoration of their interior landscaping impacted by soundwall
construction;
3. The transfer of $500,793.60 from contingency to base for the
construction change order;
and authorize the Mayor to execute the aforementioned
documents.
Construction Change Order No. 7 to Contract C22870B-Granite Construction
Page 2 of 3
July 12, 2007
Discussion:
On July 14, 2005, City Council approved Contract No. C22870B with Granite
Construction Company in the amount of $10,046,046.00, plus a 10% contingency,
for construction of the Whitewater Bridge at Portola Avenue. The Notice to Proceed
with construction was issued on August 22, 2005. Construction is progressing well
and the west side of the bridge is scheduled to be open to traffic by July 31, 2007.
After construction began, staff received traffic noise complaints from the residents of
the Wedgwood Glen Association on the east side of Portola Avenue between
Magnesia Falls Drive and the Portola Bridge. The residents complained that the
trees that were removed for construction had provided them with a sound buffer and
the raised roadway created a visual impact upon their properties. The original
environmental document included noise readings in this area that slightly exceeded
the City's noise standards for single-family residences. However, the environmental
document concluded that the elimination of the steep grade would cause less
gearing and revving noise and that the overlay of rubberized asphalt paving would
minimize traffic noise. Therefore, a soundwall was not included in the project.
Staff subsequently obtained a more thorough noise study that recommends a
soundwall be provided at this location. The recommended 10-foot-high soundwall
would be constructed on Wedgwood Glen property along the approximate same
alignment as the existing property wall and will mitigate both the traffic noise and the
visual impact. On February 22, 2007, Council approved Amendment No. 3 with
Moffatt 8� Nichol Engineers to design the soundwall. Staff requests approval of
Construction Change Order No. 7 that was negotiated with Granite Construction to
build the wall. Attached is the Summary of Construction Change Orders that lists
the six change orders that were previously approved by Council and this change.
The soundwall construction will require one northbound lane on Portola Avenue
between the bridge and Magnesia Falls to be closed for approximately three weeks.
Therefore, the soundwall will be constructed after the west half of the bridge is open
to traffic.
The construction of the soundwall will require the removal and modification of the
Wedgwood Glen interior landscaping and irrigation systems. Staff requests approval
of the General Release Agreement in the amount of $50,494.00 with the Wedgwood
Glen Association that compensates them for the cost to replace their landscaping.
Staff also requests approval to move $500,793.60 from contingency to base for the
construction change order and the General Release Agreement. Upon approval of
Construction Change Order No. 7 to Contract C22870B-Granite Construction
Page 3 of 3
July 12, 2007
this transfer, funds will be available in the project account no. 400-4359-433-4001.
Staff will seek reimbursement of 50% of this cost from The Coachella Valley
Association of Governments (CVAG) as necessary project costs.
Submitted By:
,
.�ti C��' '
John A. Garcia, P.E.
Engineering Manager
,�2.
Homer Cro�
ACM for Development Services
��
Carlos Orte
City Manager
JG:dhl
Department e :
Mark Greenwood, P.E.
Director of Pubtic Works
F�" ��,
r"'
Paul Gib� o �'� �/ �
Financ�IDi ctor v
�x�i' r�OUNCIL �CTI4N;
�''���``�D � , DENIED
�.�':CEZVr;D , OTHER
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�iERT�'�i.D BY: K.r� ir�x�rr� , ._._.._,.
7rig�a.n�1 on File w�ith City C1erk r s Jf �i:^c
WHITEWATER BRIDGE AT PORTOLA AVENUE
SUMMARY OF CONSTRUCTION CHANGE ORDERS
CONTRACT NO. 22870B
CCOCCO DescriptionApprovalCCO AmountPercent ofContingencyContract
NO.DateContractBalanceAmount
Original Amounts$1,004,604.60$10,046,046.00
1Additional Traffic Control and02/23/06$80,000.000.8%$924,604.60$10,126,046.00
Demoliton
2Credit to Relocate Telephone Conduits02/23/06($134,157.00)-1.3%$1,058,761.60$9,991,889.00
3Revisions to Quicksilver Entrance to06/08/06$75,913.000.8%$982,848.60$10,067,802.00
Portola Country Club
4Revisions to Signals and Striping06/22/06$61,172.000.6%$921,676.60$10,128,974.00
5Tree Removals, Potholing, and12/14/06$29,004.000.3%$892,672.60$10,157,978.00
Misc. Revisons
6Deletion of Rock Scour Protection,Mmodify6/14/2007$391,879.003.9%$500,793.60$10,549,857.00
Channel Lining, and Add Invert Slab
7Wedgwood Glen Soundwal and revisions6/28/2007$560,811.005.6%($60,017.40)$11,110,668.00
to Gas Line Casing and Water Lines
Total To Date$1,064,622.0010.6%
CITY OF PALM DESERT
CONSTRUCTION CHANGE ORDER
Contract Purpose Whitewater Bridge at Portola Avenue
Contractor's Name Granite Construction Company
Add�ess: 3800 Monroe Street, Indio, CA 92203-9500
Contract #/ P.O. # � C22870B � 12484
Change Order No. I 7
Contingency: I ES� I NO
Account No. I 400-4359-433-4001
Project No. I 647-04
Vendor No. � 1010
You are hereby requested to comply with the following changes from the contract plans and specifications:
DESCRIPTION OF CHANGES DECREASE INCREASE
(Attached Supplemental Plans and Specifications) In ContraCt PriCe In ContraCt PriCe
1. Construct new soundwall on northbound Portola Avenue adjacent to
Wedgewood Glen as shown on attached Drawings C-186 and C-18C.
2. Revise Bid Item 7, to change a) 12" gas line casing from .375" O.D. and
galvanized steel to .25" O.D. and bare steel and b) 1/2" hangers to 7/8".
3. Revise CVWD water lines as shown on attached revised Drawing C-9
and C-10.
Payment for these change shall be as follows:
1. a) The construction of the new soundwall shall be at an agreed lump sum
price of $510,000.
1. b) Demolition, clearing, and traffic control shall be at force account
basis (time and materials) at the estimated amount of $75,000.00.
2. The changes for gas line casing shall be at the agreed upon lump sum
credit of $11,461.00.
3. The changes to the CVWD water lines shall be at the agreed upon lump
sum credit of $12,728.00.
TOTALS:
NET CHANGE IN CONTRACT PRICE:
$11,461.00
$12,728.00
$24,189.00
$510,000.00
$75,000.00
$585,000.00
$560,811.00
JUSTIFICATION:
The soundwall on northbound Portola Avenue between Magnesia Falls and the Portola Bridge is required to mitigate
traffic noise and visual impacts to the adjacent Wedgwood Glen Community as recommended by a noise report that
was prepared after receiving complaints from the residents.
TOTAL BUDGET FOR PROJECT:
Less: Expend. & Encumb. To Date:
Less: This Change Order Amount:
BALANCE OF BUDGET
REMAINING FOR PROJECT:
+ 12, 840, 871.00
- 12,151,716.40
- 560, 811.00
128, 343.60
CONTINGENCY:
Amount Approved by Council: + $1,004,604.60
Less: Prior Change Order(s): - $503,811.00
Less: This Change Order: - $500,793.00
Balance Remaining of Contingency: $0.00
The amount of the Contract will be increased by the sum of: Five Hundred and Sixty Thousand, Eight Hundred
and Eleven Dollars ($560,811.00).
W\Agenda Items\2007-July 12\CCO 2 Granite C228708 Portola Bridge 647-04\CCO 7- Granite 647-04 doc See reverse
Contract C228706 Change Order No. 7 Continued from front
This Change Order covers changes to the subject contract as described herein. The Contractor shall construct, fumish
equipment and materials, and perform all work as necessary or required to complete the Change Order items for a
lump sum price agreed upon between the Contractor and the City of Palm Desert, otherwise referred to as Owner.
Contract Time Extension: To be determined later.
Revised Contract Total: $11,110,668.00
The undersigned Contractor approves the foregoing Change Order # 7 as to the changes, if any, in the contract price
specified for each item including any and all supervision costs and other miscellaneous costs relating to the change in
work, and as to the extension of time allowed, if any, for completion of the entire work on account of said Change
Order # 7. The Contractor agrees to fumish all labor and materials and perform all other necessary work, inclusive of
that directly or indirectly related to the approved time extension, required to complete the Change Order items. This
document will become a supplement of the contract and all provisions will apply hereto. It is understood that the
Change Order shall be effective when approved by the Owner.
Execution of this Change Order by the Contractor constitutes a binding accord and satisfaction that fully satisfies,
waives, and releases the Owner from all claims, demands, costs, and liabilities, in contract, law or equity, arising out of
or related to the subject of the Change Order, whether known or unknown, including but not limited to direct and
indirect costs and/or damages for delay, disruption, acceleration, loss of productivity, and stacking of trades, as well as
any and all consequential damages.
This document will become a supplement to the Contract and all provisions will apply hereto, all items included above
must have required signatures as per the purchase resolution.
REQUESTED BY:
DEPARTMENT HEAD
CERTIFIED
FUNDS AVAILABLE:
2. ACCEPTED BY:
CONTRACTOR Date Accepted
4. APPROVED BY:
FINANCE DIRECTOR
NOTE: No payments will be made prior
to City Manager and Council approval
RICHARD S.KELLY, MAYOR
CITY MANAGER
Date Approved
Date Approved
W\Agenda Items\2007-July 12\CCO 2 Granite C228708 Portola Bridge 647-04\CCO 7- Granite 647-04 doc See reverse
SOUNDWALL DETAILS NO. 1C-18BWHITEWATER RIVER BRIDGE AT PORTOLA AVEBASIS OF BEARINGS:BENCHMARK:CITY OF PALM DESERTC.V.W.D. DRAWING APPROVALAPPROVAL OF THIS DRAWING BY C.V.W.D. IS ONLYFOR THAT PORTION WITHIN C.V.W.D. RIGHT OF WAYFOR ENCROACHMENT PERMIT NO. 050616-2-034APPROVAL OF THIS DRAWING BY C.V.W.D. DOES NOTINCLUDE APPROVAL OF ANY STRUCTURAL ITEMS, NORAPPROVAL OF ANY PORTION OF THE PROJECT AS TOTHE ADEQUACY OF ITS INTENDED FUNCTION.DATE:CONSTRUCTION CHANGE ORDER NO. 7
SOUNDWALL DETAILS NO. 2WHITEWATER RIVER BRIDGE AT PORTOLA AVEBASIS OF BEARINGS:BENCHMARK:CITY OF PALM DESERTC.V.W.D. DRAWING APPROVALAPPROVAL OF THIS DRAWING BY C.V.W.D. IS ONLYFOR THAT PORTION WITHIN C.V.W.D. RIGHT OF WAYFOR ENCROACHMENT PERMIT NO. 050616-2-034APPROVAL OF THIS DRAWING BY C.V.W.D. DOES NOTINCLUDE APPROVAL OF ANY STRUCTURAL ITEMS, NORAPPROVAL OF ANY PORTION OF THE PROJECT AS TOTHE ADEQUACY OF ITS INTENDED FUNCTION.C-18CDATE:CONSTRUCTION CHANGE ORDER NO. 7
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THRUST BLOCK SHEAR RING DETAIL
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THRUST BLOCK NOTES:
1. BLOG( CONCREIE SHALL BE CLA55 C(2,000 P.5.1. 4.5 SACK) IN FCCORDANCE
YA1H BASIC CONCREIE SPECIFlCAlI0N5, BLOCK DIMENSIONS SHONN ARE MINIMUM.
2. BLOCI(5 SHALL BE FORMED YAhI iRIA1ME0 EARIH, SAND BFGS Q4 LUMBER TO
ACHIEYE REWIRED CONFlGURATION.
3. BLOCI(5 SHALL BEAR AGAINST ONDISNRBED EARTH OR REPLACE� EARiH HA�7NG
95S RELATVE COMPACTION AIINIMUM.
4. BACNFlLL AROUND ANO OVER BLOCKS SHALL BE COMPACTED TO 95S RELATI�E
COAIPACTION MINIMUM.
5. COMPACTED EAR7H SHALL EX7END TO �EP1H AND VAD7H (WJ OF BLOCK AND TO
OISTANCE W/2 BffORE AND PAST BLOCK.
,,.'�,. �;. MOFFATi & NICHOL
= IRViNE, CA�IFORNIA PoppoFEssioN(
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AIAV 5. 2005 n V I L
PL�NS �pPqOV�L 0/.TE '���'W���'
WAlERLINE GENERAL NOTES:
1. ALL AIATERIALS AND CONSIRUCTION SHALL CONFIX2N TO 7HE STANDARD
SPEqFICATI0N5 FOR THE CONS7RUC710N GF �OMESTIC WATER SYSTEAIS
(STANDARD SPECIFlCA770N5) OF THE COACHELLA VALLEY WATER �ISIRICT
(CN.W.�.) IINLE55 MO�IFlm BY 7HE STANDARD SPEQFlCA770NS, 7HE
STANDARDS OF TiE AMERICAN WA7ER WORKS ASSOCIA710N SHALL APPLY
TO ALL MAIERIPlS AND CON4RUClION MEiHODS. WAIER AIAIN MAiERIALS
SHALL BE RAIED FOR 150 P9 NINIMUM. STAPC PRESSURE AT NORhi AND
SWIH 57REET APPRORCHES = 07 P9.
2. ALL WORK SHALL BE SUBJECT TO INSPECPON BY C.V.W.D.
3. CONTRRCTIXi SHALL CONTACT �hiE CHIEF INSPECTOR, C.V.W.D., AT
LEAST 48 HOIlRS PRIOR TO TFiE START OF CONS7RUCPON TO PRRANGE
A PRECONSTRUC710N CONFERENCE.
4. PN APPROVE� CLEANING TOOL SHALL BE PIILLID hiROUGH THE PIPE
OURING TFIE PROCE55 OF Il5 ASSEMBLY TO REMOVE �IRT, ROCNS, OR
FOREICN AIAiERIALS.
5. CONTRACTOR SHALL SUBMIT TO C.V.W.D. A l6T OF MAiERIALS TO BE
OSFD PRIOR TO THE PRECONSlRUC710N CONFERENCE ONIY MAIERIAlS
OtJ 1FiE APPROVED L1ST MAY BE USED. LIST SHALL INCLUOE OUANIITV,
MANUFAC7URER, MWEL, SIZE AND O1HFR PQ2TINENT DATA
6. CONTRACTOR SNALL SCHEDULE NIS CONS7RUCTION AC71VI17E5 N1TH THE
CNIff INSPECTIX2, DAILY. BEINEEN 3:30 AND 4:30 P.M. FOR THE
Fq10NiNG WORK DAY. IF C.V.W.D. OR THE qtt ARE UNABLE TO PRONDE
AN INSPECTOR Oft INSPECTIX25. CONIRACTIXi SHALL RESCHEDULE ITS
1VORK FOR ANOTHER 71AIE.
7. NVRK PERFORMm 1N1Fi0UT INSPEC710N MAY BE SUBJECT TO REJECPON.
9. MAIN IJNE PRESSURE lESTNC SHALL 6E ACCOMPLISHm PRIOR TO
CONNEC110N TO ANY IXISTING C.V.W.D. MAIN. NO WATER USE OF ANY KIND
X1LL BE PERMITiFD UNIIL ALL MAINS HAVE PASSEO PRESSURE TESTS AND
HAVE BEEN CHLORINAIED, RUSHED AND A FAVORABLE LABIX2ATORY
BACTERIOLOqCAL REPORT HAS BEEN REC�V'cD BY C.V.W.O. LABIX2ATOftY
FOR TESTNG SHALL BE APPRO�ED BY C.V.W.D. PRESSURE TESTS ON NEW
PIPELNE SHALL BE AGPINST A TEST PLAIE OR BLINO fLANGE PRESSURE
1E5T5 AGAINST A CLOSED VAL�E N1LL NOT BE PERAIIiIED.
9. CONNEC71QY5 TO E%IS71NG MAINS AND DISCONNECiIONS OF EXIS�NG MAINS
FOR ABAN�ONMENT N1LL BE PERFIX2ME0 BY C.V.W.D. PERSONNEL RT CINS
IXPENSE
10. PORlI0N5 OF E%IS71NG WAIER MAINS SHALL BE REMOVED AT BRI�GE
FWNDA710NS AND BENEATH CHANNEL 90Tf0AI TO A OEPTH OF AT
LEAST 5 R BELOW FlNI91m GRADE AND AT LOCATIONS HHERE EXIST
WATER AIAIN INTERFERES N1hl INSTALLAPON OF NEW WATER MAIN. UPON
ABANDONMENT OF WAIEFt MAINS, THOSE POR710N5 TO RQARIN IN PLACE
SHALL BE FlLLED Nihi A SAND/AIORTAR SLURRY PND A CONCREIE PWG
SHALL BE INSTALLED AT ALL PqN75 OF REMOVAL
77, �UC77LE IRON PIPE X1lH FESTRAMED JqNTS SHALL BE USED FOR NEW WATER
MAINS. PIPE SHALL BE NRNISHED N1TH ASPHALTIC COATING ACCORDING TO
AWWA C751, AND SHALL HAOE A CEMENT 11NING ACCORDING TO AWMA q04.
NEW 24' PIPING SHALL BE 'TR FLE%' AN� NEW PIPING 12' AND SMALLER SHALL
BE �MJ FlELD LOK' AS MANUFACNRE� BY U.S. PIPE AND fOUNDRY C0. IX1
APPRO`iED EOUAL
12. NEW 24� PIPING SHALL BE POLY 1N2APPE� BEIWEBJ STAlIONS 16+55 AND
19+90 IN ACCOR�ANCE N1lH AWNA q05, MEiHOD A.
13. CON7RACTOR TO PRONDE CLOSURE %ECE AT PE-INS PND CONNECIING PIECE
BETNEEN ADJOINING BEIJOS. 7HE LENGTH OF TiE CONNECPNG PIECE SHALL BE
PER NANUFACiURQ25 RECOMMENDATION. R FLANGE� ADAPTqt SHALL BE USED
6ETWEEN A FlANGED VALVE OR FlT71NG AND hiE PIPE SEE SPECIAL PRONSIONS.
14. VALYES SHALL BE PRON�ED YA1H EXTENSION RODS THAT PERMIT OPERATION
FROM FlNISH GRADE LEVEL, AND SHALL ACCOMMODATE VRL�E OPERATIX2 MELL
CAP (C.V.W.D. OETNL OWGS W-17 AND W-iBA RESPEC710EL1� - VALVES S11ALL
BE SUPPORTED BY CONCREIE CRADLES AS RECOMMEN�EO BY THE VALYE
MANUFACNRER.
15. FlRE HYI7RANT INSTALLAlION SHALL BE P61 C.V.W.O. OEfAIL DWG N0. W-33A.
16. FIXt AIR AND VACUUM REIJEF VALYE, SEE SPEqAL PRONSIONS.
oe:icx e. cmaFaumoesear APPFOVALOFTHISONAWING9vGVW.D.ISONLY � � C.V.W.D. DRAWINGAPPROVP.L I
J. HORNBY Pvxweo ar. FORiHATPORiIpYWiTHINC.V.W.D.RIGHiOFWAV i ' /J o.re �
F0.4ENCROACHMEMGERMIlNO. 050616-3-031
� � cxecxeo• f� 9o0N�05
Tp•ALSTON APPROVALOFTHISORAWINGBYGVW.D.00ESNOT � � �/ .
-��� 5� ING.IIOEAPPROVPLOFANYSiFI1CNPN.REMS.NC' /� p��/
cxec.eo er wxx cA[[xxoao, .c[. saer qppFOVALOFAHYPORiIONOFTHEPRNECTA5T0 / � 1.�.� ��� I � ��"`t�/
cirr ExcixEEa nccwuExorn.� � 33646
G. LIM THEA�EQUACYOFIiSINiENOEDFUNCiION. ���=���ioes onre nv.mnvml ^•�"• �^• . .
CONSTRUCTION CHANGE ORDEFi NO. �
DATE:
CITY OF PALM DESERT I°R""".f"G
NO.
WHITEWATER RIVER BRIDGE AT PORTOLA AVE C- 1 O
WATERLINE RELOCATION DETAILS 5H � 10
mru ?5
36�6
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is made and entered into as of
June 14, 2007, "Effective Date"), by Wedgewood Glen Homeowner's Association
("Owners"), in favor of the City of Palm Desert ("City"). Owners and City are sometimes
hereinafter individually referred to as a "Party" and/or collectively referred to as the
"Parties," regarding the following facts:
RECITALS
A. The City is in the process of constructing a bridge over the Whitewater
Channel on Portola Avenue, located in the City. Pursuant to the Portola Avenue Bridge
over the Whitewater Channel the City will be contracting with Granite Construction
Company to construct a sound barrier wall ("Wall") along the east side of Portola
Avenue south of the Whitewater Channel to shield residents living adjacent to Portola
Avenue from the increased noise that will be generated. Specifically, Granite
Construction Company will be removing the existing walls located between Portola
Avenue and the Wedgewood Glen community, and replacing these existing walls with
the new Wall. The construction of the Wall will damage the interior landscape of the
community along side Portola Avenue.
B. Owners are the legal owners of property commonly known as Wedgewood
Glen common area, Palm Desert, California 92260; Assessor's Parcel Number 624-
121-039; and legally described as Lot 1 of Tract 16942-1, Recorded in book 121, pages
67-68 of Maps in the office of the County Recorder for Riverside County ("Property").
The Property is located along Portola Avenue.
C. Instead of having the City or Granite Construction Company repair and/or
replace any of the Owners' landscape that may be damaged as a result of the
construction of the Wall, Owners would rather accept Fifty Thousand, four hundred
ninety-four and no/100 Dollars ($50,494.00) in lieu of the interior landscape restoration.
D. The Parties desire to settle all matters described herein as well as any and
all disputes or potential disputes, claims or potential claims, each of the Parties hereto
have, had, or may in the future have arising out of any of the Parties' actions with
respect to the interior landscape restoration on the terms and conditions set forth in this
Agreement, together with such other documents as may be necessary to effectuate the
Agreement, rather than incur the costs of litigation and the uncertainties associated
therewith.
NOW, THEREFORE, in consideration of the landscape arrangement discussed
in Paragraph 2 below, and for other good and valuable consideration, receipt of which is
hereby acknowledged, the Owners agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are hereby incorporated
by this reference as though fully set forth at length herein.
Page 1 of 4
2. Wall Landscape Arranqement. The City of Palm Desert shall pay to
Owners the sum of Fifty Thousand, four hundred ninety-four and noi100 Dollars
($50,494.00) for the Owners to repair and/or replace their damaged Landscape at their
discretion in lieu of the interior landscape restoration.
3. General Release. Upon payment of $50,494.00 as discussed in
Paragraph 2, Owners, for themselves and each of their predecessors-in-interest,
spouses, relatives, subsidiaries, affiliates, representatives, agents, partners, co-owners,
joint venturers, employees and attorneys, past and present, successors, assigns, heirs,
executors, administrators and transferees, release the City from any and all causes of
action, claims, demands, damages, expenditures, costs, attorney fees, liens, obligations
and liability of any type or nature, whether known or unknown, suspected or
unsuspected, which Owners may now have or claim to have, or has at any time
heretofore had against the City by reason of the matters set forth herein and any claim
or interest relating to the interior landscape restoration.
4. Waiver of Civil Code §1542. Owners hereby acknowledges that they
understand the meaning of Section 1542 of the Civil Code of the State of California,
which provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which, if known by
him, must have materially affected his settlement with
the debtor."
5. Settlement of Disputed Claims. The Parties hereby acknowledge that this
Agreement affects the settlement of disputed claims and should not be construed as an
admission of liability on the part of any Party hereto. No Party is admitting the
sufficiency of any claim, allegation, assertion, contention or position of any other Party,
or the sufficiency of any defense to any such claim, allegation, assertion, contention or
position. The Parties have entered into this Agreement in good faith and with the desire
to forever settle and resolve their claims to the interior landscape restoration
6. Entire Aqreement, Modifications and Waiver. This Agreement constitutes
the entire agreement between the Parties with respect to such terms as are included
herein and the Parties acknowledge that they have not executed this instrument in
reliance on any promise or representation or warranty not contained herein. This
Agreement supersedes and replaces all prior settlement negotiations and/or proposed
settlements. This Agreement may not be contradicted by evidence of any prior or
contemporaneous oral or written agreement. No alteration, supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by all of the
Parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the Party making the waiver.
Page 2 of 4
7. Applicable Law, Jurisdiction and Venue. This Agreement shall be deemed
to have been entered into and shall, in all respects, be interpreted, construed, enforced
and governed by and under the laws of the State of California. The Riverside County
Superior Court, Indio Branch, shall have jurisdiction over the matters presented herein.
8. Section Headinqs, Gender and Svntax. The section and paragraph
headings contained in this Agreement are for reference purposes only and shall not
affect in any way the construction or interpretation of this Agreement. Whenever in this
Agreement the context so requires, the masculine or feminine or neuter gender and the
singular and plural number shall be deemed to refer and include the other.
9. No Assianment of Claim. The Parties hereby represent and warrant to
each of the other Parties that no claims they might have, or do have, and which are
otherwise referenced and released by this Agreement have been assigned or
transferred to any person, corporation or other entity, either voluntarily or involuntarily,
and that there are no lawsuits pending between the Parties, other than the interior
landscape restoration which is the subject of this Agreement. The Parties hereby agree
that they will indemnify and hold each of the other Parties harmless from any loss,
including attorney fees and costs incurred, which may result from breach of any term or
condition of this Agreement.
10. Bindinq on Successors. This Agreement shall be binding on and inure to
the benefit of the Parties hereto and their respective heirs, legal representatives,
successors, assigns, executors and administrators.
11. No Third Partv Riqhts. Except as otherwise expressly set forth herein,
nothing contained in this Agreement is intended to confer any right or benefit upon any
person or entity other than the Parties hereto and their successors.
12. Severabilitv. If any provision of this Agreement is held invalid or
unenforceable, in whole or in part, by any court of final jurisdiction, it is the intent of the
Parties that all other provisions of this Agreement be construed to remain fully valid,
enforceable and binding on the Parties in all respects as if such invalid or unenforceable
provision were omitted. Any court of final jurisdiction will have the autho�ity to modify or
replace the invalid or unenforceable term or provision with a valid and enforceable term
or provision that most accurately represents the intention of the Parties.
13. Attornevs' Fees. Each of the Parties shall bear their own respective
attorneys' fees, costs and expenses regarding the interior landscape restoration,
including those incurred in the preparation of this Agreement. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this Agreement or
because of an alleged dispute, breach, default or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other costs and expenses
incurred in that action or proceeding in addition to any other relief to which it or they
may be entitled.
Page 3 of 4
14. Counterparts and Fax Transmission. This Agreement may be executed in
counterpart and exchanged by facsimile, and all original or facsimile counterparts, when
taken together, shall be valid as one instrument as though signed in original on a single
page.
15. Authorization. Any Party signing this Agreement on behalf of an entity
other than themselves, hereby represents and warrants that such Party has authority to
sign on behalf of the indicated entity.
IN WITNESS WHEREOF, Owners hereby execute this Agreement as of the
Effective Date hereunder. The undersigned hereby warrant that they are legally
authorized and entitled to settle and to release every claim herein released and to give
a valid, full and final acquittance therefor.
DATED:
DATED:
Page 4 of 4
VICINITY MAP T
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PROJECT LOCATION - PORTOLA AVENUE 0 87.5 175 350 525 �oo
CROSSING AT WHITEWATER CHANNEL Feet