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HomeMy WebLinkAboutMONTGOMERY, et al. - 1998-04-20AGREEMENT FOR SETTLEMENT OF CLAIMS AND MUTUAL GENERAL RELEASES I. P R This Agreement is by and between CITY OF HUNTINGTON BEACH, a municipal corporation ("CITY"), MONTGOMERY WATSON AMERICAS, INC., formerly known as JAMES M. MONTGOMERY CONSULTING ENGINEERS, a corporation ("MWA"), PRO CONTRACTING CORP., a corporation ("PRO"), ANNING JOHNSON COMPANY, a corporation ("AY), JACK KETTERING, an individual dba JACK KETTERING COMPANY ("KETTERING"), REYNOLDS METALS COMPANY, a corporation ("REYNOLDS"), HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS ("CMI"), and ACE RESTORATION & WATERPROOFING, INC., a corporation ("ACE") with respect to the design and construction of certain improvements at the Peck Reservoir in Huntington Beach, California (the "Project"). II. FACTUAL_ SETTING The CITY was and is the owner of the Project. On or about February 7, 1989, the CITY entered into an engineering contract with MWA for certain engineering and design services related to the Project (the "Engineering Contract"). On•or about November 1, 1993, the CITY entered into a construction contract with PRO to perform certain construction work at the Project in accordance with the plans and specifications prepared by MWA (the "Construction Contract"). In a general sense, the scope of work mentioned in the Construction Contract included the removal and replacement. of portions of the wood framing structure .supporting the reservoir roof, the removal of the old metal roof, the installation of a new Vangard aluminum roof manufactured by REYNOLDS, the construction of a new concrete liner in the reservoir and the L9 construction of a new pumping station adjacent to the reservoir. RELIANCE INSURANCE COMPANY ("RELIANCE") was the surety on the public works payment and performance bonds provided by PRO. On or about November 1, 1993, the CITY also entered into a construction management agreement with CMI (the "Management Contract"). Subsequent to the execution of the Construction Contract, PRO entered into subcontract agreements with AJ and KETTERING and KETTERING retained the services of ACE. Pursuant to these subcontracts, AJ was obligated to procure and install, among other things, the new aluminum roof and KETTERING was obligated to install the new concrete liner, caulking and sealants, as well as other work. ACE furnished and installed the caulking. AJ purchased the aluminum panels for the new roof from REYNOLDS. During -the course of construction of the Project, certain disputes arose between CITY, MWA, PRO, AJ, KETTERING, CMI and ACE concerning, among other things, the design developed by MWA, the construction work performed by PRO and its subcontractors and CITY's administration of the Project. As a result of these disputes, CITY initiated an action in the Superior Court for the State of California to enforce its claims against MWA,-PRO, RELIANCE and CMI. Thereafter, PRO filed a cross -complaint against CITY, MWA, AJ and KETTERING; MWA filed a cross - complaint against PRO, CITY, CMI, AJ and REYNOLDS; AJ filed a cross -complaint against CITY, MWA, PRO and RELIANCE; KETTERING filed a cross -complaint against MWA, PRO, CNH, CITY, AJ and ACE; REYNOLDS filed a cross -complaint against CITY and CNU. CMI filed a cross -complaint against MWA, PRO, KET1 ERING, CITY, AJ and REYNOLDS. This action has been identified as Case No. 765940 (hereinafter the -"Pending Action"). The parties have now agreed to resolve all disputes and claims described in the Pending Action, with the exception of the claims against CNII's insurance carrier. A. iZ Consideratigm 1. By CITY: CITY shall pay PRO the sum of $275,000 in full and complete satisfaction of PRO's present claims on the Project. Said sum shall be paid as follows: a. at least the sum of $165,000,00 concurrently with the execution and exchange of this Agreement (the "Closing") ; and b. the balance of said sum on or before May 8, 1998. 2. By MWA: The monetary claims of MWA against CITY shall be waived in their entirety. Additionally, MWA shall pay PRO the sum of $275,000.00, plus the monies received from REYNOLDS, at the Closing. 3 -; A 3. By PRO: PRO shall accept the monetary consideration mentioned in this Agreement in full and complete satisfaction of its monetary claims on the Project, including all contract/retention, extra work and delay claims. 4. By Aj: AJ shall waive and release its stop notice claim against CITY in its entirety and shall waive and release PRO and RELIANCE from any and: all current monetary claims on the Project, including all contract/retention, extra work and delay claims. 5.r KETTERING: KETTERING shall pay PRO the sum of $42,500.00, . plus- the. monies received from KETTERING, at the Closing and shall waive and release PRO and RELIANCE from any and all monetary claims on the Project, including all contract/retention, extra work and/or delay claims. 6. By ACE: ACE shall pay KETTERING, for remittance to PRO, the sum of $5, 000 at the Closing and shall waive and release PRO, RELIANCE and KETTERING from any and all monetary claims on the Project, including all contract/retention, extra work and/or delay claims. 7. By REYNOLDS: REYNOLDS shall pay MWA, for remittance to PRO, the sum of $50,000.00 at the Closing. 4 . . . _._.........._._..... _ (a) . All payments pursuant to this Agreement shall be in the form of a check or wire transfer payable to James P. Reid - Client Trust Account (Wells Fargo Bank Account No. 0660-027434). (b) The receipt of all payments mentioned herein is - a condition precedent to the Closing. All payments are to . be received by James P. Reid Client Trust Account no later than 3:00 p.m. on the day preceding the Closing. (c) Within 5 business days following the Closing, James P. Reid shall transfer the sum of $175,000.00 of the monetary consideration in his Client Trust Account to QUADROS & JOHNSON Client Trust Account. Further, within 5 business days of his receipt of CITY's final payment pursuant to this Agreement, James P. Reid shall transfer the sum of $70,000.00 to QUADROS & JOHNSON Client Trust Account. QUADROS & JOHNSON shall . retain said sum in its Client Trust Account to secure the performance of the work described in paragraph III.B-3. Said monies shall not be disbursed until Benjamin A. Johnson receives joint disbursement instructions from AJ and counsel for CITY. Said funds may be disbursed in the form of progress payments based upon the completion of the installation of the plywood and the single ply roofing system, provided however. Benjamin A. Johnson shall make certain that BondCote Roofing Systems is paid for the materials furnished for the repair work and that at least 15% of such funds are retained until CITY receives the Guarantees mentioned in this Agreement. ANNING JOHNSON shall accept the payment of these funds in full and complete satisfaction of all monies due for the installation of the Roofing System described in the Specification. Benjamin A. Johnson does not owe any duty to any party to investigate, inspect or inquire as to the quality or status of the repair work. Other than making .arrangements to insure that BondCote Roofing Systems receives payment for the materials provided to the repair work, Benjamin A. Johnson's sole ohligation prior to the release of funds is to secure the joint disbursement instructions and Guarantees mentioned above. • _! o 71 ri �M7Mr, TM 911T. F,IM04 1. By CITY: CITY shall waive final inspection and approval of the original Project. Additionally, CITY shall deem July, 1996 as the start date for all warranties other than the warranties created by the this Agreement. Finally, ' CITY shall procure all permits for the work described in the following paragraphs at CITY's sole cost and expense. 2. -i y MWA: MWA shall prepare and seal a specification for installation of a single -ply roofing system on the reservoir roof ("the Sealed Specification") as well as the structural calculations for the new roofing system at no cost to CITY. The Sealed Specification shall be based on the specification which is attached hereto as Exhibit "1" and shall address the concerns regarding the: (i) collection of water between the Vangard roofing panels and the new single -ply roofing system and (ii) leaching of materials from the single -ply roofing system and insulation into the potable water. The structural calculation shall be sealed and shall address the 6 • ability of the roof framing system, including foundations, to adequately support the single ply roofing system. MWA shall provide CITY with a copy of its structural calculations prior. to the Closing and the calculations shall be attached to this Agreement as Exhibit "2". MWA's preparation and submission of the Seated Specification and the structural calculations shall be a condition precedent to AJ's obligation to commence work on the .roofing system at the Reservoir. 3. By AJ (Roofing System): AJ shall install the single -ply roofing system described in the Sealed Specification (Exhibit "I") at no cost to CITY, provided however, the parties acknowledge that AJ will receive the sum of $245,000.00 pursuant to the terms of this Agreement. The single ply roofing system shall provide the CITY with a watertight and leak - free roofing system for a period of ten years. The work shall include the repair of any unsupported roofing panels, all necessary fasteners, insulation and walk pads, as well as the removal and re -installation of the ridge ventilator. All labor, installation and materials shall be warranted by the manufacturer of the single -ply roofing system for a period of ten years in accordance with the guarantees which are attached hereto as Exhibit "3". Furthermore, AJ agrees to provide CITY with an conditional guaranty in the form of Exhibit "4" at CITY's option (the "Conditional Guaranty"). If CITY elects to purchase the Conditional Guaranty, CITY agrees to remit an additional $10,000.00 to AL CITY shall provide AJ with notice of its election to purchase said Conditional Guaranty within 10 months following the issuance of the Bondcote Guaranty (Exhibit "3") and shall make full payment to AJ prior to the expiration of one year from the issuance of this Bondcote Guaranty. CITY shall also enter into the 7 Maintenance Contract mentioned in paragraph III-B.5(e) concurrently with the issuance of the Conditional Guaranty. The written notification, the additional $10,000.00 payment and the execution of the Maintenance Contract are express conditions precedent to AJ's obligations under the Conditional Guaranty. The work on the roofing system shall commence within twenty (20) days following the Closing and shall be completed within one hundred five (105) calendar days from the commencement of the work, weather permitting. PRO and AJ will not be required to perform any work on the framing system. other than installation of the flaming materials required to support any unsupported panels, as part of this agreement. It is understood and agreed that the Guarantees do not include the roof framing system. 4. By PRO (Concrete Lines): At no cost to CITY, PRO shall repair and/or modify the cast -in -place concrete liner in order that the liner meets the original specifications for allowable leakage. In addition, PRO shall guaranty the performance of the concrete liner (full labor and materials) in accordance with the original specifications for a period of ten (10) years following the completion of the repairs. The repairs and/or modification to the cast -in - place concrete liner which are currently contemplated by PRO are described on the work letter which is attached hereto as Exhibit "5". PRO's guaranty shall be in the form. which is attached hereto as Exhibit "6". Said guaranty and warranty shall not include the three areas which were cored and repaired by WJE and its subcontractors. PRO shall secure its obligations to complete the repairs to the' concrete liner, as well as its obligations pursuant to the above mentioned guaranty (Exhibit "6"), with a surety bond in the form of Exhibit "7". The bond shall be executed by RELIANCE or a California admitted surety rated A-VII or better in Best's R.1-. 8 11 Insurance Guide. The bond shall be executed concurrently with the Closing. The penal sum of the bond shall be as follows: (l) for the first year: (2) for the second year: (3) for the third year: (4) for the fourth through tenth years: The initial repair work on the concrete liner shall be completed within the time set forth for completion of the installation of the single ply roofing system. With respect to subsequent repair work, CITY shall provide PRO with written notice of a potential leak in the liner. Immediately thereafter, CITY and PRO shall conduct a leak test in accordance with the specifications in order to verify leakage in excess of the allowed amount. If the amount of leakage exceeds the amount allowed under the original specifications, then PRO shall commence further repairs of the liner within fifteen working days and shall complete such repairs as expeditiously as possible thereafter. If PRO determines that the Reservoir needs to be drained to effectuate repairs, CITY shall have the exclusive right to determine when the reservoir shall be drained and PRO shall commence the subject repairs within fifteen working days after CITY drains the Reservoir and shall complete such repairs as expeditiously as possible thereafter. CITY shall provide PRO with at least 7 days written notice of CrtTs intention to completely drain the reservoir for any reason. CITY shall not leave the Reservoir completely empty for a period exceeding sixty consecutive days during the warranty period. 9 PRO shall be responsible for all costs associated with disinfecting the reservoir after any repair work, if disinfecting the reservoir is required. In the event CITY is required to drain the reservoir more than five (5) times- during the warranty period on account of leaks in the reservoir, PRO shall reimburse CITY the sum of $3,000.'00 each time the reservoir is drained thereafter (as a result of leaks) until the end of the warranty period. Once PRO completes the initial repair on the liner and CITY fills the reservoir, PRO shall not be responsible for the removal of any sand in the reservoir as the result of CITY's operations. 5. Other: (a) Consent gf Reliance: By letter dated immediately prior to -the Closing, Relianceshallconsent to CITY's payment of the amounts. mentioned in Section III to PRO. A copy of said letter shall be attached to this Agreement as Exhibit "8". (b) Performance S=ificgtion, The specification for the single ply roofing system and the repair of the concrete liner are intended to be performance specifications, to wit, a leak free and watertight roofing system and a concrete liner which satisfies the original specification for allowable water loss. (c) Means, Methods and TechniQues for Rep 'rs: PRO and AJ shall have exclusive control over the means, methods and techniques utilized to implement the repair work at the Project. CITY may have a representative present at the Project during the repairs to observe the repair work. CITY's review and approval of the specification for the single ply roofing system, the structural calculations for the roof, the product data sheets for the single -ply roofing material, the work letter for the repair of the cast -in -place concrete liner and/or CIM 1061 commercial industrial membrane shall not be construed as an acceptance of any . responsibility for the specification, calculations, data or proposed repairs. (d) Clean Tom: PRO and AJ wall be responsible for the clean yap and proper disposal of all debris generated as a result of the repair work at no cost to CITY. (e) Future Maintenance Work: CITY and AJ, at CITY's option, shall execute a maintenance agreement for the maintenance of the roofing system. Said maintenance agreement shall be in the form of Exhibit "9" and shall provide for an annual fee of $4,000.60, payable in advance, and which shall be increased by the sum -of six percent (6%) per annum, compounded annually. The execution, continuation and prompt payment of all amounts due pursuant to this maintenance agreement shall be an express condition precedent to AFs obligations pursuant to the additional warranty which is attached hereto as Exhibit "4" . If CITY does not enter into the Maintenance Agreement at the Closing, CITY must elect to enter into said Agreement, in writing, within 9 months of the issuance of the Bondcote Warranty (Exhibit " Y ). Other than as set forth in the maintenance agreement, CITY shall be responsible for maintaining the concrete liner and roofing system at the Project. CITY shall provide PRO with advance notice and an opportunity to observe any future maintenance work performed by CITY on the roofing system and/or concrete liner during the ten (10) year warranty period. Further, CITY shall provide AJ with advance written notice and an opportunity to observe any future maintenance work performed by CITY on the roofing system during the ten year warranty period. (f) IrWrmni Wation: PRO and AJ and their subcontractors, if any, shall hold harmless, defend and indemnify CITY from any claims and/or liability, for injuries or death to persons or damage or destruction to property, arising directly or indirectly out of the obligations and/or operations undertaken by them in connection with the repair work. (g) Liquidated�DamaQes: PRO and AJ shall be liable to CITY for liquidated damages in the amount of Two Hundred Dollars ($200) per day for late completion of the repair work. (h) InSurance: Prior to commencement of the work, PRO and AJ shall provide CITY with evidence of insurance in the type, form and amounts set forth in Article 5 - General Conditions of the specifications and as required by the Construction Contract, which insurance shall be maintained in full force and effect throughout performance of the repair work. CITY and MWA shall be named as additional insureds on such insurance policies. Further, PRO and AJ agree to provide CITY and MWA with Certificates of Insurance and Additional Insureds Endorsements. 12 (i) mpg= Facilities: PRO and/or Al shall not be required to maintain a job office or temporary sanitation facility at the project during the performance of the work mentioned in this Agreement. (j) Etoj1&t Management: Prior to the commencement of the repair work PRO and AJ shall designate in writing a technically qualified, English-speaking Project Manager and/or Superintendent who shall be responsible for supervising the repair work. PRO and ANNING-JOHNSON will also provide CITY with an office telephone number, portable - telephone number, and a pager number for each such individual.. The Project Manager and/or Superintendent shall be available by phone for emergencies.24 hours per day, 7 days per week. (k) General Conditions: The following General . Conditions, Supplementary General Conditions and Technical Specifications for the Project shall survive the execution of this Agreement and shall apply to the work mentioned in Section III: General Conditions: 2.1, 4.1, 4.4, 5.2, 6.la, 6.2, 6.5, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12; 7.1, 7.2, 11.2, 12.2, 13.3.(A), 14.4, 14.6(A), 15.1, and 16.1; Supplementary General Conditions: SGC-I, SGC-5.2, and SGC-5.2(c); and Technical Specifications: 01520 (as related to the work being performed by PRO and AJ), 01530, 01560, 02667. 13 To the extent that other technical specifications may be applicable to the work mentioned in Section III, such technical specifications may be used as a guideline to assist the parties in the determination of suitable construction and/or repair methods, provided however, said technical specifications shall not be mandatory. Finally, in the event of a confect between this Agreement and any provision in the Specifications, this Agreement shall control. Except as expressly provided herein, the parties intend to ' and do hereby finally compromise, settle and resolve any and all disputes and differences that exist or may exist between them on the Project, including all claims mentioned in the Pending Action. A. By CITY Except as expressly provided to the contrary in this Agreement, CITY does hereby • release and absolutely forever discharge MWA, PRO, RELIANCE, AJ, KETTERING, REYNOLDS CMI and ACE, and their respective officers, directors, shareholders and agents and employees of and from any and all claims, demands, damages, debts, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, which CITY now has, owns, asserts or holds, or which CITY may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact, or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof. 14 • U" Except as expressly provided to the contrary in this Agreement, MWA for itself, its officers, directors and shareholders, does hereby release and absolutely and forever discharge CITY, PRO, RELIANCE, A3, KETTERING, REYNOLDS, CMI, and ACE and their respective officers, directors, shareholders, agents and employees of and from any and all claims, demands, damages, debts, receivables, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, which MWA now has, owns, asserts or holds, or which MWA, may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact, or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof. C. By PR Except as expressly provided to the contrary in this Agreement, PRO for itself, its officers, directors and shareholders, does hereby release and absolutely and forever discharge CITY, MWA RELIANCE, AJ, KETTERING, REYNOLDS, CMI, and ACE and their respective officers, directors, shareholders, agents and employees of and from any and all claims, demands, damages, debts, receivables, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, which PRO now has, owns, asserts or holds, or which PRO may hereafter have, awn, assert or hold, based upon the Project, whether related to or by reason of any contract {express, implied in fact, I or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof. Except as expressly provided to the contrary in this Agreement, -Ad, RETMRING, REYNOLDS, CM, and ACE for themselves, their officers, directors and shareholders, do hereby release and absolutely and forever discharge one another, and CITY, PRO, RELIANCE and MWA and their respective officers, directors, shareholders, agents and employees of and from any and all claims, demands, damages, debts, receivables, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether now known or unknown, suspected or unsuspected, which they now have, own, assert or hold, or which they may hereafter have, own; assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact,. or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission. occurring or existing between said parties at any time to and including . the date hereof. V. WAIVER OF_SEQ'ION 1542. Each of the parties hereto acknowledge their awareness of Section 1542 of the Civil of the State of California, .which provides as follows: 1.1 "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." Subject to the limitations set forth in Section VI, each of the parties hereto waives and relinquishes any. right or benefit which they have or which they may have under Section 1542 of the Civil Code of the State of California with respect to the Project. VI. LIMITATION ON MS AGREE! MEW, GENERAL RELEASES -AM WAIVER OF SECTION 1542 The General Releases and Waiver of Section 1542 contained in this Agreement are expressly limited to the claims which arise from or relate to the Project and shall not affect or impair the rights, obligations, or claims of any party on other projects. Further, the General Releases and Waiver of Section 1542 contained in this Agreement shall not release, discharge or otherwise limit or diminish: (a) Any- rights, obligations and/or duties created by this Agreement, including obligations created by the Exhibits which are attached hereto; 17 (b) The claims against CMI only to the extent of claims, rights and interests under applicable policies of insurance designating CITY as an additional insured or otherwise inuring to the benefit of CITY with regard to the Project, all of which claims, rights and interests against CMI and its insurers are expressly reserved; (c) Any claims which CITY might otherwise be entitled to assert in the future against any party (or against any other person or entity) based upon any latent defects in the design or construction of the electrical, plumbing, LPG, mechanical and/or control systems at the Project; (d) The right of any party to seek indemnification, on future claims asserted by third parties, for death, personal injury or property damage, as the result of the design and/or construction of the Project; and (e) The validity and/or enforceability of any warranty provided to CITY in connection with the Project, provided however, this provision shall not be construed to create, expand, modify or extend any warranty or warranty exclusion provided with respect to the Project. The parties agree to execute each of the following documents concurrently with the Closing unless otherwise agreed in writing: 18 (a) The parties agree to dismiss the pending action in its entirety, with prejudice, provided however, the parties expressly reserve the right to pursue its claims against CMI's insurance carrier (see Exhibit "10"); (b) _ KETTERING shall execute an Unconditional Waiver and Release Upon Final Payment on the Project (see Exhibit " l l ") ; (c) ACE shall execute an Unconditional Waiver and Release Upon Final Payment on . the Project (see Exhibit "12"); (d) AJ shall execute an Unconditional Waiver and Release Upon Final, Payment on the Project in the form of Exhibit "13" ; (e) AJ shall execute a Release of Stop Notice in favor of CITY on the Project in the form of Exhibit "14 (f) AJ shall provide CITY with a fully executed warranty for the single ply roofing system from Bondcote in the form of Exhibit "3"; (g) . AJ shall provide CITY with a guaranty for the roofing system in the form of Exhibit "4" (said Guaranty shall not be effective unless CITY satisfies the conditions precedent in this Agreement); FES 11 (h) AJ shall provide CITY with a written representation from a duly authorized representative of Bondcote with respect to the suitability of the proposed roofing system in this application (see Exhibit " 15"); (i) MWA shall provide CITY with a written representation with respect to the suitability of the proposed roofing system in this application (see Exhibit " 16"); (j} AJ and CITY shall, at CITY's option; execute the maintenance agreement in the form of Exhibit "9" . M PRO shall provide CITY with a guaranty for the concrete liner in the form of Exhibit "6"; (1) PRO shall provide CITY with a fully executed performance bond in the form of Exhibit "T' . Each party also agrees to execute such other documents and instruments as are reasonably required to complete the settlement provided for herein. _o 11Kai KORIk The Closing of the matters referred to in this Agreement shall take place on or before 2:00 p.m., Thursday, April 23, 1998 (the "Closing"). The Closing shall take place at the Law Office of James P. Reid, 2030 Main Street, Suite 1600, Irvine, California 92714 or at such other place as the parties may agree. At or prior to the Closing, each party shall deliver the documents specified in this Agreement. Each of the parties to this Agreement represents, warrants and agrees as follows: (a) Each party has received independent legal advice from its attorney with respect to the advisability of making the settlement provided for herein, the advisability of executing this Agreement, and with respect to the meaning of the California Civil Code Section 1542. (b) No party (nor any officer, agent, employee, representative, or attorney of or for any party).has made any statement or representation. to any other party regarding any fact relied upon in entering into this Agreement, and no party is relying upon any statement, representation or promise of any other -party (or of any officer, agent, employee, representative, or attorney for the other party) in executing this Agreement or in making the settlement provided for herein, except as expressly stated in this Agreement. 21 ;�.. (c) Each party has entered into this Agreement freely and voluntarily and has made an investigation of the facts pertaining to this settlement, this Agreement and of all the matters relating hereto. (d) Each party or responsible officer or agent thereof has read this Agreement and understands the contents hereof. Each of the persons executing this Agreement on behalf of the respective parties is empowered to do so and thereby binds his respective party. Further, each party to this Agreement agrees to indemnify and hold' the others harmless from any liability, claim, demand, expense and attorneys' fees incurred by the others as a result of any person asserting that the person who executed this Agreement was not authorized to do so. (e) In entering into this Agreement and the settlement provided for herein, each party assumes the risk of any misrepresentation, concealment or mistake with respect to this Agreement, the execution of this Agreement, or the settlement provided for herein. If any party should subsequently discover that any fact relied upon it by in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including, without limiting the generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement. Subject to the limitations contained herein, this Agreement is intended to be and is final, binding and conclusive between and among the parties hereto with respect to certain of the claims which have been asserted on the Project, regardless of any claim of • • misrepresentation, promise made without the intention of performing, concealment of fact, mistake of fact or law, or of any other circumstance whatsoever. (f) Each party hereto represents and warrants that there has been no assignment, sale or transfer, by operation of the law or otherwise, of any claim, right, cause of action, demand, obligation, liability or interest released by any of them as provided herein. X.I-MCEUANEQO (a) The warranties, guarantees, rights and obligations created by this Agreement shall survive the execution of this Agreement, unless modified, amended or released by a subsequent Agreement. (b) This Agreement and the releases, payments and other terms provided for herein are made, executed, given and accepted as part of a compromise and settlement of disputed claims. No provision(s) of this Agreement, nor any acceptance of the benefits thereof by or on behalf of any of the parties hereto shall be construed or deemed to be evidence of an admission of fact, matter, thing or liability of any kind to any other party. Each of the parties hereto denies any liability of any kind to any other party for any purpose, and this settlement is made solely and entirely as a compromise and for the purpose of fully and finally resolving the disputed matters referred to herein. (c) Each party agrees to bear its own costs and attorneys' fees incurred to date with respect to the Project and in the Pending Action. Further, each party specifically waives any and all claim(s) against any other party hereto or their sureties for the recovery of the attorney's fees and costs. in the event of any litigation arising under or concerning this Agreement, the prevailing party shall be entitled to recover attorneys' fees and costs from the non -prevailing parry in such litigation: (d) ' This Agreement and the exhibits hereto are the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral and written agreements and discussions between or among any of them. The parties hereto acknowledge and agree that there are no conditions, covenants, agreements or understandings between or among any of them except as set forth in this Agreement and the exhibits hereto. This Agreement may be amended only by a further signed writing. (e) This Agreement is binding upon and shall inure to the benefit of each of the parties hereto and their respective parent companies, subsidiaries, affiliates, predecessors, successors, divisions, shareholders, directors, officers, employees, attorneys, agents,. representatives,- heirs and assigns. (f) The validity, construction and performance of this Agreement, as well as the rights and obligations of the parties hereunder, shall be governed, construed and enforced in 24 accordance with the laws of the State of California, without regard to principles of choice of law. (g) Each of the parties hereto has cooperated and participated in the drafting and preparation of this Agreement. Accordingly, the parties hereby acknowledge and agree that this Agreement shall not be construed or interpreted in favor of or against any party by virtue of the identity of its preparer. (h) Each term of this Agreement is contractual and not merely a recital. (i) With respect to the claims and matters which have been expressly released by this Agreement, each party is aware that it may hereafter discover claims or facts in addition to or different from those it now knows or believes to be true with respect to the matters referred to in this Agreement. Nevertheless, it is the intention of the parties to fully, finally and forever settle and release all matters and all claims which now exist, may exist, may hereafter exist, or heretofore have existed'between them on the Project, subject to the limitations contained herein. As such, the releases given shall be and remain in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 25 6 • • 0) This Agreement may be executed in counterparts and when signed by each of the parties hereto with signed copies delivered to the other party, or their attorney, shall be deemed in full force and effect executed as set forth below. DATED: A&/L all), / iiP CITY OF HUNTINGTON BEACH, a municipal corporati of the State of California Mayor REVIEWED AND APPROVED: ATTEST: 00 City Attorne U' -1�l yy'q$ City Clerk 3/4 ,y City Adginistrator DATED: DATED: MONTGOMERY WATSON AMERICAS, INC., a corporation By: Title: PRO CONTRACTING CORP., a corporation By: Title: 26 • • (j) This Agreement may be executed in counterparts and when signed by each of the parties hereto with signed copies delivered to the other party, or their attorney, shall be deemed in full force and effect executed as set forth below. DATED: CITY OF HUNTINGTON BEACH, a municipal corporation APPROVED: By:_ Title: Gail Hutton City Attorney DATED: MONTGOMERY WATSON AMERICAS, INC.; DATED: a corporation By: �2 /I Title: Sp. ✓.cam /'y�r , a/� �� PRO CONTRACTING CORP., a corporation By: Title: 26 ' C �) This Agreement may be executed in counterparts and when signed by each of the parties hereto with signed copies delivered to the other party, or their attorney; shall be deemed in full force and effect executed as set forth below. 11 DATED: CITY OF HUNTINGTON BEACH, a municipal corporation APPROVED: By:___ Title: Gail Hutton City Attorney DATED: MONTGOMERY WATSON AMERICAS, INC.; a corporation _ By: Title: DATED: 2 S - S _ PRO CONTRACTING CORP., a corporation By: 26 • DATED: May 06, 1998 R; M i ANNING JOHNSON COMPANY, a corporation By • no Title: tvice President JACK KETTERING, an individual dba JACK KETTERING COMPANY By: Title: DATED: REYNOLDS METALS COMPANY, a corporation DATED: DATED: By: Title: HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS By: Hotch Bedrosian ACE RESTORATION & WATERPROOFING, INC. Bv: Scott Lansburg, President 27 • DATED: DATED: `7 � I f S ANNING JOHNSON COMPANY, a corporation By: Title: JACK NG, an individual dba JACK TKE ERIN COMPANY Y� nn DATED: REYNOLDS METALS COMPANY, a corporation DATED: DATED: By: Title: HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS By: Hotch Bedrosian ACE RESTORATION & WATERPROOFING, INC. Bv: Scott Lansburg, President 11 i • DATED: ANNING JOHNSON COMPANY, a corporation DATED: DATED:_ DATED: By: Title: JACK KETTERING, an individual dba JACK KETTERING COMPANY By: Title: REYNOLDS METALS COMPANY, a corporation HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS By: Hotch Bedrosian ACE RESTORATION & WATERPROOFING, INC. By: Scott Lansburg, President ,' • i DATED: ANNING JOHNSON COMPANY, a corporation By: Title: DATED: JACK KETTERING, an individual dba JACK KETTERING COMPANY By: Title% _ DATED: REYNOLDS METALS COMPANY, a corporation By: Title: DATED: y > > ` HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS By:_ -1 ' Hotch Bedrosian DATED: ACE RESTORATION & WATERPROOFING, INC. By: Scott Lansburg, President DATED: ANNING JOHNSON COMPANY, a corporation . E - DATED: DATED: DATED.: DATED:' I L06 L _ By: Title: JACK KETTERING, an individual dba JACK KE71ERING COMPANY By:_ Title: REYNOLDS METALS COMPANY, a corporation By: Title: - HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS By: Hotch Bedrosian ACE RESTORA' INC. LOU _7 U a • • 1 APPROVED AS TO FORM: DATED: GIBBS, GIDEN, LOCHER & TURNER LLP By: AJWL William D. Locher Attorneys for CITY OF HUNTiNGTON BEACH MANNING, MARDER & WOLFE By: Thomas R. Gill Attorneys for MONTGOMERY WATSON AMERICAS, INC. DATED: LAW OFFICES OF JAMES P. REID at Law By: James P. Reid Attorneys for PRO CONTRACTING CORP. DATED: QUADROS & JOHNSON By: Benjamin A. Johnson Attorneys for ANNING JOHNSON COMPANY DATED: MURTAUGH, MILLER, MEYER & NELSON, LLP By: Thomas J. Skane Attorneys for JACK KETTERING, an individual dba JACK KETTERING COMPANY 18 • APPROVED AS TO FORM: DATED: DATED: S G DATED: DATED: GIBBS, GIDEN, LOCHER & TURNER LLP By: William D. Locher Attorneys for CITY OF HUNTINGTON BEACH MANNIN , . ER & WOLFE By: Thomas . Gill Attorneys for MONTGOMERY WATSON AMERICAS, INC. LAW OFFICES OF JAMES P. REID at Law By: James P. Reid Attorneys for PRO CONTRACTING CORP. QUADROS & JOHNSON By: Benjamin A. Johnson Attorneys for ANNING JOHNSON COMPANY DATED: MURTAUGH, MILLER, MEYER & NELSON, LLP By: Thomas J. Skane Attorneys for JACK KETTERING, an individual dba JACK KETTERING COMPANY 28 APPROVED AS TO FORM: DATED; GIBBS, GIDEN, LOCHER & TURNER LLP By: William D. Locher Attorneys for CITY OF HUNTINGTON BEACH DATED; MANNING, MARDER & WOLFE I0 Thomas R. Gill Attomeys for MONTGOMERY WATSON AMERICAS, INC. DATED; s����� LAW OFFICES OF JAMES P. REID w By. James P. JReid' Attorneys for PRO CONTRACTING CORP. DATED; QUADROS & JOHNSON Benjamin A. Johnson Attorneys for ANNING JOHNSON COMPANY DATED; l Ll MURTAUGH, MILLER, MEYER & NELSON, LLP By: 41171-on", - - Thomas J. Skane Attorneys for JACK KETTERING, an individual dba JACK KETTERING COMPANY 28 • APPROVED AS TO FORM: DATED: DATED: DATED: DATED: DATED: GIBBS', GIDEN, LOCHER & TURNER LLP By: William D. Locher Attorneys for CITY OF HUNTINGTON BEACH MANNING, MARDER & WOLFE By: Thomas R. Gill Attorneys for MONTGOMERY WATSON AMERICAS, INC. LAW OFFICES OF JAMES P. REID at Law By: James P. Reid Attorneys for PRO CONTRACTING CORP. COMPANY MURTAUGH, MILLER, MEYER & NELSON, LLP By: Thomas J. Skane Attorneys for JACK KETTERING, an individual dba JACK KETTERING COMPANY 29 DATED: -L,4�x!q I:kWLOCHERkHUN INCMPSclMAGnsET1'1399.RD2 (Rsv'd Aprd 3, 1998) WULFSBERG 19 i 1 it )WS & SYKES BONDCOTE STANDARD WARRANTY WARRANTY DATE: MEMBRANE INSTALLED Sq. Ft. BondCote Roofing Systems, a supplier of BondCote roofing materials, EXPRESSLY WARRANTS THAT, SUBJECT TO THE LIMITATIONS BELOW, -it will repair leaks caused, in the good faith determination of BondCote Roofing Systems by defects in the roofing system manufactured by it and installed by an authorized BondCote contractor for a period of ten (10) years from the date hereof at a cost not to exceed the Owner's original installed cost of the materials manufactured by BondCote Roofing Systems. It is specifically noted that any and all caulking materials, sealants, pitch pan filter, and any other accessories or maintenance items determined solely by BCRS are excluded from Warranty coverage. LEMnATIONS 1. No liability shall arise under this Warranty until all bills for supplies, installation and services have been paid in full to the authorized BondCote contractor and BondCote Roofing Systems and until signed by the owner. 2. Notification of any leaks must be provided to BondCote Roofing System in writing to the address below within thirty (30) days after leaks are discovered. 3. BondCote Roofing Systems shall not be liable for any loss resulting from natural disasters, including but not limited to lightning, hurricanes, tornadoes, fire, hailstorm, wind equal to or exceeding near gale on the Beaufort Scale or any other extraordinary natural occurrence; and earthquakes; any pollutants, any acts of negligence, accidents or misuse caused by any thud party, including but not limited to, vandalism, civil disobedience, acts of war, or negligence of Owners; any alterations or modifications to the roof and/or intended use of the building not approved by BondCote Roofing Systems in writing which approval shall not be unreasonably withheld; or any failure in the structure to which the roofing system is attached. 4. During the term of this Warranty, BondCote Roofing Systems, its agents, or employees shall have access to the roof during regular business hours, if BondCote Roofing systems is unreasonably denied access by Owner then it may rescind this Warranty after written notice to Owner and Owner's failure to allow access within . then (10) days thereafter. S. THIS EXPRESS WARRANTY IS IN LIEU OF ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER REMEDY WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY- OR ANY OTHER ACTION AT LAW OR IN EQUITY. NO WARRANTY SHALL EXTEND BEYOND THE WARRANTY PERIOD. NO REPRESENTATIVE OF BONDCOTE ROOFING SYSTEMS HAS AUTHORITY TO MAKE ANY Exhibit #3 ECG-A:7-BLUE131RD 0 recycled Paper (:31V) 477.07470 • • L.UEBHVD t' Recycled Pager {V O) 477-0700 m x a'o w • • load l .xls CLIENT: Date: MONTGOMERY WATSON • ;;:,93 l+]:3' A�( Huntington Rcach/Peck Reservoir Designed by: LEF 5-,tar-98 Weights for 2:12 members Vangard Deck- 0.81 psf 2x12g-4' = 1.03 psf 1/4 -inch ACX Plywood = 0.79 psf (25#/32sgft) N'BP, 35mils - 0.23 psf (100#/442sgft) Visqueen 6 mil = . 0.03 psf (57.4#/2000sgft) Misc - 0.12 psf Includes Bolts and Fasteners. etc... Total n 3.00 psf Original estimated weight per talcs Tributary Width = 4.00 ft dated 7/21/99 pg 25 s 12.1 p(f Total load to 2x o 12.00 If Since 12.0 Of < 12.1 plf, application of NBR system ok Weights for 5-1/4r2l"GLB members Vangard Deck- 0.81 psf 2xl2@4' - L.03 psf 114 -inch ACX Plywood - 0.79 psf (25#/32sgft) NBR, 35mils = 0.23 psf (100#/442sgft) Visqueen 6 mil a 0.03 psf (57.40/2000sgft) Mise - 0. l2 psf Includes Bolts and Fasteners, etc... Total - 3.00 psf Tributary Width = 21.00 ft Original estimated weight per talcs 5- l/4x21 BM WT - 24.45 plf dated 7/21/89 pg 22 = 89.4 p1f Total load to GLB a F 87 1f Since 87.35 pit < 89.4 pit, application of NBR system ok Page 1 EXHIBIT 2 LUESiR °i Firt cys lid gaper (;3101 4 U-0700 • • +'-7-J3 UEBligJD 0 Recy€doo papw • • R 1.1 1.2 1.3 PRESCRIPTIVE REQUIREMENTS NBR ROOFING SYSTEM PART 1 - GENERAL THE REQUIREMENT A. The CONTRACTOR shall furnish and install a watertight, warranted roofing system including all appurtenant work, complete, and shall inspect the areas for roofing work, and furnish all necessary labor, materials and equipment coordinating all of the work hereunder with the related roofing work and supporting structures in existence, so to assure functional integrity of the overall system for the existing Peck Reservoir in Huntington Beach, CA in accordance with the requirements of this Specification. DESCRIPTION OF WORK A. Installation of BondCote Roofing System over existing Vanguard Roofing System incorporating all vents, hatches, walkways, etc. 1. Install 6 mil Polyethylene. film attached in accordance with BCRS requirements. 2. Install plywood, mechanically attached in accordance with BCRS requirements. 3. Install BondCote 35 mil membrane, mechanically attached in accordance with the BCRS requirements. SUBMITTALS A. The CONTRACTOR shall submit the following information to the OWNER for review and acceptance: 1. Applicator's Qualifications: Submit a written certificate from the system manufacturer that the applicator has been factory -trained and is manufacture approved for this work. 2. System: Submit manufacturer's literature and/or printed installation data. Submit BCRS requirements regarding plywood and polyethylene installation. 3. Certificates: Submit evidence that the roofing system meets requirements as stated hereunder and the materials are compatible with the existing roofing system and new roof membrane system. 4. Layout Drawings: The roofing contractor shall verify all dimensions, including hatches, vents, walkways, etc,... in the field and prepare and submit layout drawings, prior to installing the polyethylene film and plywood. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE I of 10 EXHIBIT 1 1] • 1'.4 1.5 1.6- 5. Certified Test Reports: With all product data, submit copies of certified test reports showing compliance with stated performance values, including, thickness, compression strengths, perm ratings, water absorption ratings, and other properties. 6. Warranty: Submit a 10 year manufacturer's labor and material warranty for the new materials furnished and installed to the OWNER upon successful. completion and inspection by BCRS. GUARANTEE AND CERTIFICATION A. Guarantee: The NBR roofing system shall be warranted by BondCote Roofing Systems Standard Warranty. This warranty shall cover new BCRS materials and installation labor for a period of 10 years after completion and final acceptance of the project. B. Certification: Upon completion of the work, the roofing applicator shall submit a certificate certifying that all new materials used conform to the requirements of this specification and were installed in accordance with the manufacturer's and/or BCRS's recommendations and instructions. 1014MMM A. Deliver all materials to the jobsite in their manufacturer's unopened packaging with identifying labels intact. B. Handle all materials carefully to prevent damage to the edges or ends. C. Store all materials on clean raised platforms and cover with weather protective coverings. ; PROJECT SITE CONDITIONS A. Keep all materials dry before and during application. B. Lay no more polyethylene film and plywood in one day than can be covered in the same day with a completed roofing membrane. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 2 of 10 • PART 2 - PRODUCTS 2.1 APPROVED PRODUCTS A. Provide products which are manufactured or approved by BondCote Roofing Systems for the application indicated. Where components are to be used which are not supplied by BondCote Roofing Systems, installer shall submit a list to BondCote Roofing Systems for review and acceptance prior to commencement of work. BondCote 984 Southford Road Middlebury, CT 06762 (909)784-8707. 2.2 MEMBRANE A. Field and Flashing membrane: BondCote polyester reinforced 35 mil NBP Single Ply Membrane with the following physical properties: CHARACTERISTIC ER SUTLS TESI METHOD Color Tan ---- Thickness 35 Mif ASTM 0751 Breaking Strength Warp 400 lbs. ASTM D751 Fill • 300 Ibs. ASTM D751 Elongation at Break Warp 30% ASTM D751 Fill 35%' ASTM D751 Seam Strength 120% ASTM D638 Retention of properties after heat aging Break Elongation 95% ASTM D3045 90% ASTM D3045 Tearing Strength Warp 120 Ibs ASTM D751 Fill 110 ibs ASTM D751 Low Temperature Bend Pass ASTM D2136 Accelerated Weathering Cracking Pass ASTM G53 Discoloration Pass ASTM G53 Crazing Pass ASTM G53 Linear Dimensional Change <0.5 ASTM D1204 Change in Weight after Immersion in Water Pass ASTM D751 Puncture Resistance 300lbs. FS101Bmeth 2031 Tensile Strength 7000 .s.i. ASTM D882 EMMAOUA 4 million Ian le s ASTM G90 Accelerated Weathering 10,000 hrs FS191A No effects Hydrostatic Resistance 500 .s.i- ASTM D751 Hydrostatic Resistance No Cracking, MIL-C-20696C Blistering or Crazin Oil Resistance No Swelling, Cracking MIL-C-20696E or Leaking PECK RESERVOIR R)rNOVA71ON NBR ROOFING SYSTEM PAGE 3 of 10 • B. Membrane Sizes: -1. Full width sheets: 66-inches wide x 102-feet long or custom length. 2. Half width sheets: 33-inches wide x 102-feet long or custom length. 2.3 . BCRS ADHESIVE AND ACCESSORIES A. BCRS Adhesive: Used to adhere BondCote flashing membrane to acceptable substrates. Application rates for Fiberglass Facer substrate shall be 1 3/4 gallons per square including'/s gallons per square applied to the underside of membrane. 1. The CONTRACTOR shall vary application rates over rougher or smoother surfaces as necessary for proper adhesion. B. BCRS Accessories: BondCote Roofing systems; Standard accessories shall be - used to form a complete roofing system. BCRS Accessories include: I. BCRS Stainless Steel For aluminum substrate, BCRS #14 fastener Screws 2. BCRS Fastening Plates 2- 2-inches for membrane, 3-inches for plywood inches & 3-inches locking lastic plate 3. BCRS Termination Bar Type 1, Cressent Bar, Type 11, Y-inches Bar 4. BCRS Coated Metal 30 mil, unsupported NBP bonded to 24 gauge alvanized steel. 4-feet x8-feet sheets S. BCRS Prefabricated Stack 8-inches , 10-inches , 12-inches , and custom siz Boots 6. BCRS Molded Outside 4-inches 0-inches x4-inches Comer; 7. BCRS Unreinforced 24-inches x60-inches Roll Flashing 8. BCRS Pipe Banding--- 9. BCRS Caulk --- 10.1 BCRS Walk Pads C. Flashing: All flashing systems around hatches, vents, and edges of decking system shall be as recommended by BCRS. ,2.4 BOLTS A. All metal accessories in contact with aluminum deck system, hatches, vents, etc., shall be stainless steel. B. Bolts used to connect dissimilar metals shall be ASTM A193 and A194, Type 316 stainless steel. C. Dissimilar metals shall be fully isolated with methods acceptable to the manufacturer. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 4 of 10 M 2.5 PLYWOOD A. General: Comply with requirements indicated for materials and with manufacturer's standards in sizes to fit applications indicated, selected from manufacturers standard, widths, and lengths. 2.6 2.7 B. Crickets: Provide tapered boards for sloping to drain at all access hatches. Fabricate boards for crickets with taper of '/s -inch per foot, unless otherwise indicated. C. Plywood shall be 1/4 -inch ACX as rated by the APA Design/Construction Guide and U.S. Product Standard PS 1-83 For Construction & Industrial Plywood with Typical APA Trademarks for exterior application with one side smooth. D. Filler: Type approved by BCRS for filling voids in plywood surface. E. Mechanical Anchors: Corrosion -resistant type as recommended by plywood manufacturer for deck type complying with wind -uplift rating requirements. 1. All metal accessories in contact with aluminum deck system, hatches, vents, etc., shall be stainless steel. POLYETHYLENE FILM A. General: Comply with requirements indicated for materials and with manufacturers standards in sizes to fit applications indicated, selected from manufacturers standard, widths, and lengths. B. Polyethylene film shall be Contractor Choice Plastic Sheeting as manufactured by Poly -America with the following physical properties: Thickness ASTM D374 DART IMPACT WVTR ASTM WVTR ASTM ASTM D1109 E96 E96 6 Mils 260 gm 0.23 gm/100 0.13 perms sq in -day C. Tape: Tape for taping seams shall be as recommended by BCRS. WALKWAYS A. Walk Pads: Walk Pads shall be BondCote Walk Pads, 2-feet x3-feet thermal welded membrane. 2.8 AUXILIARY MATERIALS A. Sheet Seaming System: Manufacturers standard methods for heat welding to seal lapped joints, and covering exposed fasteners as recommended by membrane manufacturer. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 5 of 10 B. Cant Strips, Tapered Edge Strips, and Flashing Accessories: Types recommended by membrane manufacturer, including adhesive tapes, flashing cements, and sealants. C. Flashing Material: Manufacturers standard system compatible with single -ply membrane. D. Mechanical Fasteners: Metal or plastic plates, caps, battens, accessory components, and fastening devices to suit substrate and as recommended by membrane manufacturer. E. Membrane Adhesive: As recommended by membrane manufacturer for particular substrate and project conditions, formulated to withstand minimum 60- psf uplift force. F. VOC Requirements: Adhesives shall comply with local requirements limiting amounts of volatile organic compounds. PART 3--EXECUTION 3.1 GENERAL A. Remove existing walkway grating system. B. Protect existing work to remain in place. C. Prevent compounds from spilling or migrating onto surfaces of other work. D. Installation shall be made watertight at the end of each day. E. Provide expansion joint continuous at every end lap as shown in the attached detail by BondCote as. modified for this specific project. Fasteners for either plywood or NPB shall not penetrated Vanguard deck at the nominal 6-inch or 12- inch end lap and shall maintain a minimum distance of one -inch to each end of the Vanguard deck at the end lap as shown in the attached detail. F. Flashing: All hatches, vents, and edges of decking system shall be flashed as recommended by BCRS. G. CONTRACTOR shall, not apply materials until substrate conditions are acceptable to BCRS for warranty purposes. Application of materials constitutes agreement between the CONTRACTOR and BCRS that substrate is suitable for installation of the BondCote roofing system. 3.2 SUBSTRATE PREPARATION A. The substrate shall be structurally sound and suitable to accept the new roof system. Roof test cuts and fastener pull out tests shall be performed in PECK RESERVOIR RENOVATION NI3R ROOFING SYSTEM PAGE 6 of 10 accordance with BondCote Roofing Systems recommendations to verify deck condition and adequate fastener pullout resistance on tear off and recovery applications. B. Comply with manufacturer's instructions to prepare substrate to receive single -ply membrane system. C. Verify that penetrations, expansion joints, and blocking are in place and secured. D. The substrate shall be smooth and free of dust and debris. E. The substrate shall be free of sharp edges or other surface projections irregularities which would be detrimental to the installation of the roofing system prior to the start of work. F. Install cant strips, flashings, and accessory items as recommended by manufacturer. 3.3 INSTALLING POLYETHYLENE FILM A. General: Extend polyethylene film over entire surface, cutting and fitting tightly around obstructions. 1. Stagger joints in one direction for each course with no gaps, to form a complete barrier. 2. Provide 2 -inch minimum overlaps, taped. 3. Seal all penetrations with polyethylene film, taped. 3.3 INSTALLING PLYWOOD A. Apply plywood units to substrate perpendicular to NBR membrane with finished side down complying with manufacturers recommendations with mechanical anchorage to provide permanent placement -and support of units. B. , Do not install more plywood in a day than can be covered with membrane before the end of the day or before the start of inclement weather on any day. C. Secure roof plywood to substrate with mechanical anchors of the type and spacing indicated by the manufacturer but in no case provide less than four fasteners per four -foot by eight -foot board with the first coarse of plywood at the perimeter of the roofing system to have a minimum of six four fasteners per four - foot by eight -foot board. D. Long edges of the plywood shall not terminate in a flute. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 7 of 10 • 3.4 INSTALLING MEMBRANE A. Installation to be performed in the adequate presence of manufacturer's technical representative as agreeable to BCRS. B. Cut out and repair membrane defects at the end of each day's work. C. Install membrane by unrolling the entire length of the first membrane sheet and position sheet exactly in the desired position as acceptable by BCRS over prepared substrate, lapping adjoining sheets as recommended by manufacturer, and bonding laps with heat weld to seal seams. D. All end laps shall be a minimum of three -inches wide and heat welded together. E. All wrinkles and or buckles shall be removed prior to installing mechanical fasteners. F. - Seaming 1. All membrane surfaces to be welded shall be clean and free of moisture, adhesive and foreign objects. 2. Install BCRS mechanical fasteners and 2-inches seam plates at spacing recommended by manufacturer, covering with membrane so that no fasteners are exposed. 3. Field seam laps to be continuously hot air welded with an approved hot air .welder providing a minimum 1-inches seam weld with an automatic welder. 4. Field seams shall be welded after the sheet is mechanically attached. 5. Round all exposed comers of the roofing membrane at all junction laps, at all flashings, and at all end laps prior to hot air welding. G. Seam Inspection: -Inspections by BCRS and the Contractor shall be made on all welded seams to ensure the watertight integrity of the seams. 1. Seam inspections are to be made visually for obvious defects and physically with a dull pointed instrument. 2. All unwelded seams found 'during the inspection are to be repaired immediately as follows: a) Re -weld seams with hand welder to provide a minimum 1-inches continuous uniform weld with no wrinkles, or b) Weld new membrane strips over problem areas. Strips shall be minimum 2-inches width to ensure a minimum 1-inches continuous uniform weld on both sides of defect. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 8 of 10 0 • s H. Flashings 1. Install flashings as recommended by membrane manufacturer utilizing BCRS standard details and standard accessories. 2. All flashings are to be heat welded to the field membrane. 3. All vertical flashings rising less than 8-inches shall have prior written approval from BCRS. 3.5 � WALKWAY INSTALLATION REQUIREMENTS: A. Install walkway system to specific access hatches as required for general maintenance of the reservoir up to 900 lineal feet in locations as approved by the OWNER in accordance with the manufacturer's written recommendations. 3.6 SPECIAL INSTALLATION REQUIREMENTS: A. 'The membrane shall be mechanically fastened ihto the deck at the base of all curbs and other similar penetrations with appropriate BCRS fasteners and 2- inche membrane plates at a spacing not to exceed 12-inches. Fasteners and plates at the same spacing will also be required at the base of all tapered edge strips and at roof plane changes in accordance with the manafactureris recommendations. 3.7 PROTECTING ROOFING A. Institute appropriate procedures for protection of the existing and new roofing system during construction period. At the end of the construction period, or at a time when remaining construction will in no way affect or endanger roofing, make a final inspection of roofing and prepare a written report to Owner, describing nature and extent of deterioration or damage found. B. Repair or replace (as required) deteriorated or defective -work found at the time of final inspection to a condition free of damage and deterioration at the time of Substantial Completion and according to the requirements of the warranty. END PECK RESERVOIR RENOVATION NSR ROOFING SYSTEM PAGE 9 of 10 . seat veto . Rovlmad Detan NwftK A -A a/L OF COP Sol••rz,ft" rmw- W. Q. Cuan L.o (rimr w IV b��c i ti C',,.ca Te an R.se wx- wm�. PECK RESERVOIR RE`OVATION NBR ROOFING SYMM PAGE 10 of 10 • • LLT T _mT i X LU oo,,o-eta (Ole) jaded PePAoaa rd naie9m M-05LUEBIRD LJ Recycled Paper {310) 777-0700 CJ • REPRESENTATIONS OR PROMISES EXCEPT 'AS STATED HEREIN, BONDCOTE ROOFING SYSTEMS SHALL UNDER NO CIRCUMSTANCES, BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. 6. BondCote Roofing Systems shall have no obligation under the Warranty without the Owner's signature accepting this Warranty in lieu of all other remedies and the 'return of a signed copy of this Warranty. 7. The purpose of this Warranty is to provide the Owner with repair to correct leaks caused by defects in the manufacture or installation of roofing material manufactured by BondCote Roofing Systems. This is expressly agreed to be an exclusive remedy. Any inspection by BondCote Roofing -Systems of the installation of its roofing systems shall not be construed to have created, any additional duty, liability or warranty, on its part, express or implied, or any additional remedy for the Owner or any other party otherwise expressly excluded by paragraphs 5 and 7 hereof. 8. The Owner shall not be responsible for the cost.of investigation if any leaks are determined not be covered by this warranty agreement. 9. This Warranty is not assignable without written permission from BondCote Roofing Systems. ACCEPTED; Owner's Signature and Address BONDCOTE ROOFING SYSTEMS: By: - Title: BondCote Roofing Systems 106 Lukken Industrial Drive, West LaGrange, GA 30240 Name & Address of Building Warranted (if different) I:%WL0CHERIHufn'1Ncr tPECKU41SC1 SONDCOTEMAR LUEBIRI) 0 Recycled Paper (370) ,1rr-oroo • 0 LUERIRD q."j Rceyeind Paper ;310) 477-0700 C: E CONDITIONAL ROOFING SYSTEM GUARANTY For valuable consideration, ANNING JOHNSON COMPANY, a corporation (ANNING JOHNSON"), hereby guarantees to THE CITY OF HIJNTINGTON BEACH, a municipal corporation ("CITY"), and its successors and assigns, that the single -ply roofing system installed at the Peck Reservoir, Springdale Avenue, Huntington Beach, California ("Project") shall be free from defects in materials and workmanship and shall provide City with a water tight and leak free roofing system for a period of ten years following the manufacturer's issuance of the warranty on the Project. - ANNING JOHNSON COMPANY, at its sole cost and expense, shall repair any leaks in the single -ply roofing system which appear in the foregoing ten year period and which leaks are -the result of a defect in materials and/or workmanship, provided however, if the manufacturer of the single -ply roofing system installed at the Reservoir repairs said- leaks in accordance with the terms - of its warranty -or City fails to maintain the roofing system in accordance with the manufacturer's instructions and ANNING - JOHNSON's written . recommendations, this obligation shall be null and void. ANNING JOHNSON's maximum liability pursuant to this Guaranty shall not exceed the following amounts for the time periods set forth below: a. For the first two year period following the installation of the single -ply roofing system (such period shall commence 'upon the issuance of the manufacturer's warranty for such -roofing system), not to exceed $240,000.00; b: -For the third year following the installation of the single -ply roofing system, not to exceed $50,000.00; c. For the fourth through tenth years following the installation of the single - ply roofing system, not to exceed $25,000.00. It is specifically agreed.that ANNING JOHNSON's liability pursuant to this Guaranty is conditioned upon the satisfaction of the conditions set forth in the Agreement for Settlement of Claims, etc. ("Agreement") executed concurrently herewith and CITY entering , into and performing on a maintenance agreement with ANNING JOHNSON (as defined in the Agreement) for the term of this Guaranty. Further, ANNING JOHNSON's liability on this shall M- IBIT 4 not be cumulative: ANNING JOHNSON has the option of paying the maximum liability set forth above to CITY in any claim year in full and complete satisfaction of any and all liability pursuant to this warranty. All repairs shall be completed expeditiously as possible upon receipt of written notice by C1TY. Any suit pursuant to this Guaranty must be instituted before the expiration of one year from the date of any default. No right of action shall accrue on this . Guaranty to or for the use of any person other than CITY. DATED: May 06, 1998 ANNING ]OHNSOIA COMPANY —?q-amet' J&xy Darano Tirlp. Vioe President STATE OF CALIFORNIA . ) ) ss. COUNTY OF LOS ANGELES ) Ma 05 Dmna M. Dalthorp Ma On , 1998, before me, NcytLy .Public personally appeared Iarry Dm�'Ln'o x personally known to me - or - proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies,) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, - executed the instrument. SS my hand^and. official seal �. / ,7 of Notary ROOFING47rY.398 `J . 91 0 Donna M. Dalthorp- Comm 01029409 (� OTARY PUBLIC CALIFORNI/� LOS ANGELES COUNTY t )1 Comm EV"96July 1 1998 i ~ -: BLUFBJRO 6 Recycled Paper (310) 477-0700 E • MMOLUEBIRD Recycled Paper (370)377-0700 • • PECK RESERVOIR CONCRETE LINER REPAIR WORK LETTER The following is a statement of Pro Contracting Corp.'s plan as of April 14, 1998, for the repair of the concrete liner at Peck Reservoir, Huntington Beach, California. Pro reserves the right to revise the following plan as it conducts further investigations and undertakes the liner repairs. 1. The City of Huntington Beach is required to completely drain the reservoir. 2.. Pro will broom clean all joints. 3. Pro will conduct a visual inspection of all joints and repair any apparent defects in the existing caulking. 4. Pro will meet and confer with the manufacturer's representative for the CIM elastomeric coating and determine the specific product and method of surface preparation most suitable for the field conditions at Peck Reservoir, conducting pull tests if warranted. 5. Pro will prepare the surface and install the CIM elastomeric coating on all joints and column bases. (Pro estimates that approximately three weeks will be spent to reach this point in the planned repair procedure.) 6. The City fills the reservoir and the City and Pro conduct a leak test. 7. If the reservoir passes the leak test, Pro's obligation to perform repairs under the Agreement for Settlement of Claims and Mutual General Releases is satisfied. 8. If the reservoir fails the leak test, Pro will make further investigations (including the possible use of a diver) to determine the source(s) of the continuing leaks and will prepare a plan for. further repairs, as needed. AGREEMENT FOR SETTLEMENT OF CLAIMS AND MUTUAL GENERAL RELEASES (City of Huntington Beach v. Montgomery Watson Americas, etc, et. Al.) EXHMIT 5 RUESIRD Recyctrt! Pnper {31 a/ 4774700 • E C-9BLUESIRO Recycled Paper (310) 477-0700 m x 2 m • • CONCRETE LINER GUARANTY For valuable consideration, PRO CONTRACTING CORP., a corporation ("PRO"), hereby guarantees to THE CITY OF H JNTINGTON BEACH, a municipal corporation ("CITY"), and is successors and assigns, that the cast -in -place concrete liner installed at the Peck Reservoir, Springdale Avenue, Huntington Beach, California ("Project") will meet or exceed the original specifications for allowable leakage for a period of ten years following the date of this guaranty. This Guaranty is conditioned upon the closing of the settlement memorialized in that. Agreement for Settlement of Claims and Mutual General Releases ("the Settlement") resolving City of Huntington Beach v. Montgomecy Watson Americas etc al. (OCSC Case No. 765940) and is in made in furtherance of that Settlement. This Guaranty does not extend io leaks resulting from damage caused by third parties or the failure of the City to properly maintain the reservoir. If the liner leaks at a rate exceeding that allowed in the original specifications, Pro, at it sole cost and expense, shall expeditiously repair the liner upon written notice from the City and as described in the Settlement. Provided, however, if the manufacturer of the a membrane installed by Pro on the joints in the. concrete liner at the Reservoir repairs said leaks in accordance. with the terms of its warranty, Pro's obligations under this Guaranty shall be null and void. DATED: -9 PRO CONTRACTING CORP. 1�� r ame: Title: EXHIBIT 6 PRIPI-BLUEDIRD fl. Filmyclue. Pz"Pef (31G,'477.0701) • • @; fl-LUE81RD 40 Recycled Paper (3 f O) 477-0700 • L� Reliance Surety CollY • ]ufic 1:5ci 1 BOND NO. B2721377 INITIAL. PREMIUM: $432.00 0 Reliance PREMIUM RENEWABLE ANNUALLY GUARANM BOND KNOW Ai.L MEN BY THESE PitESENTS: That PRO CONTRACTING, INC, as Ntteipal, hereinafter called Contractor, and RIEIL.IANCE INSURANCE COMPANY as Surety, hereinafter called Surety, are held and firmly bound unto the CITY OF ERfNTIKGTON BEACH as Obligee. hereinafter called Owner, in the following amounts for the following tune periods: - Forthe period MY 10, 1998 To MAY 9, 19% not to exceed $200,000.00 For the period , MY 10, 1999 to MA not to exceed 9100,000.00 For the period MAY 10, 2000 to MAY 9, 2001 not to exceed S50,000_op For the period • MY IQ _ 200L to M Y1 AY 9 ,2008 Dot w SUCed $23,000.00 For the payment whereof Contractor and Surety bind themselves, their heirs, exeeuuws, administrators; successors and assigts, jointly and separately. firmly by these presonts. Such amounts are not cumulative bui each amount applies only for The period referenced. WHEREAS, Contractor bas entered into an agreement: for settlement of claims and mutual general releases with Owner resolving Orange County Superior Court Case No. 765940 etdiltd City ofUnItSM Beachy_ Mootxamarv_wA{sM clef_ which obligates Contractor m make repairs to the Peck Reservoir concrete liner as mom particularly described in the Agreement and hereinafter referred to as "rite work". WHEREAS, Cantractor has by written agreement in the form attached as Exhibit 6 to the Agreement enured into a guarantee with Owner for is concrete litterwhich mcca original c=jract specifications for leakage at the Peck Reservoir for a period of ten years ftm the date hereof which guarantee is by reference made a part hereof and is hereinafter referred to as ribs Guarantee. NOW, THIMFORE. the condition of this obligation is such that, if Contractor shall promptly and faithfully perform the work and said Quaaantee, theft this obligation shall be nuH and void, otherwise, it shall remain in full force and act. Whenever Conrreetor shall be, and be declared by Owner to be in defwk under the Gtararuee or the agreement for porfmwing `the work", the Owner having performed Owne es obligations thrrert Wa, the Suasty may promptly remedy dte defouir; or shall promptly (1) completes the Ouarantee iu accordance with its Tam or conditions, or (2) obtain a bid or bids for completing dw Guarantee in accordance with its tarns and conditions and upon domination by Surety of lowest responsible bidder, or if Owner elects, upon detemtination by Owner and the Surety jointly of tine lowest responsible bidder, anange for a contract between such bidder and Page 1 of 2 Owner, and make ayeilable as work programs = icienr Amds to p4y the cost of performance of the Guaraatra up to the amount set forth in Me fnst pampoph hereof; or (3) at Surety-s option make payment to the Oblilve im au antouar nor to exeexd the penal limit for the time period in which the default occurtad. Any suit under this Bond, must be instituted before the enpkatitm of one (1) year !rota the date of any delhult. No right of =don shall accrue on this Bond to or thr dw use of any person other than the Owner named hmsim SIGNED and SEALED this nTM day of MAY 199 g. PRO CONTRACTING, INC. B ' '' (PrinciFa) wIme92 RELIANCE INSURANCE COMPANY By. %-41 q with A in Pecr . FRI:M Pop 2of2 • • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Nc 5307 State of CAT TmRNTA County of RIVERSIDE On MAY 11, 1998 before me, CINDY BANTA - Nt WARY FLlF3LIC DATE NAME, TITLE OF OFFICER • E.G.,'JANE ME. NOTARY PUBLIC' personally appeared ANTON ANSTETT NAME(S) OF SICINER(S) ® personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), LIPCENDY BA"A or the entity upon behalf of which the .Camm, 1078763 �p person(s) acted, executed the instrument. NOTARY MOLT•CALIFORNIAdoauntyy Camm. Er Tres NOV. I999 i WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION - 8238 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 01309-7184 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA �_Mjt=f COUNTY OF San Bernardino On May 11, 1998___ before me, Kelly A. Saitman, Notary Public personally appeared Jay P. Freeman X personally known to me; or proved to me on the basis of satisfactory evidence to be the person( whose name(-s-) is/axe subscribed to the within instrument and acknowledged to me that (he/ .. y) executed the same =n his/herft eir authorized capacity(ie&), and that the entity upon behalf of which the person(s� acted, executed the instrument. WITNESS my hand and official seal . ,,,,,,,,,,,,,,, (SEAL) Z +'-'' KELLY A. SAITMAN Z 5T COMM. #022$48 ,. s NOTARY PUBIC CALIFORNIA P • 1 !�'._ SAN WNARDINO COUNTY I n n ^ My COMM EMiV0 NMK 27. IM, � �_ r - ` �` ,y�y �•��r��r�r�ra�r��a�������rf�se�rr�����s• Signatu.r of Notary Public CAPACITY�CIAIMED BY SIGNER: Though statute does not require the notary to fill in the data below, doing so may prove invaluable to persons relying on the document. Individuals) Corporate Officer(s) Titles Partner(s) X Attorney -in -Fact Trustee(s) Guardian/Conservator Other: and Limited General Signer is representing: Reliance Insurance Co an ATTENTION NOTARY: Although the information requested below is optional, it could prevent fraudulent attachment of this certificate to unauthorized document. Title of type of document: Guarantee Bond Number of pages:, two Date of document:_ 5/11/98 Signer(s) other than named above: principal THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED ABOVE. KA8n996V RELIANCE SURETY COMPANY E INSURANCE COMPkNY UNITED PACIFIC INSURANCE COMPANY RELIANCE NATIONAL INDEMNITY CONVANY i ADMINISTRATIVE OFFICE, PHILADELPHIA, PENNSYLVANIA POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that RELIANCE SURETY COMPANY is a corporation duly organized under the laws of the State of Del- aware, and that RELIANCE INSURANCE COMPANY and UNITED PACIFIC INSURANCE COMPANY, are corporations duly organized under the laws of the Commonwealth of Pennsylvania and that RELIANCE NATIONAL INDEMNITY COMPANY is a corporation duly organized under the laws of the State of Wisconsin (herein collectively callad—the Companies") and that the Companies by virtue of signature and seals do hereby make, constitute and appoint Jay P. Freeman, of Ontario, California their true and lawful Attorney(s)-in-Fact, to make, execute, seal and deliver for and on their behalf, and as their act and deed any and all bonds and undertakings of suretyship and to bind the Companies thereby as fully and to the same extent as if such bonds and undertakings and other writings obligatory in the nature thereof were signed by an Executive Officer of the Companies and sealed and attested by one other of such officers, and hereby ratifies and confirm@ all that their said Attorney(s)-in-Fact may do in pursuance hereof. This Power of Attorney is granted under and by the authority of Article VII of the By -Laws of RELIANCE SURETY COMPANY, RELIANCE INSURANCE COMPANY, UNITED PACIFIC INSURANCE COMPANY, and RELIANCE NATIONAL INDEMNITY COMPANY which provisions are now in full force and effect, reading as follows: ARTICLE Vlt - EXECUTION OF BONDS AND UNDERTAKINGS 1. The Board of Directors, the President. the Chairman of the Board, any Senior Vice President, any Vice President or Assistant Vice President or other officer designated by the Board of Directors shall have power and authority to Is) appoint Attomay(s)•ln FsM and to authorize thorn to execute on behalf of the Company, bonds and undflgkinoe, recognlsances, contracts of indanrlty and other writings obdgstory In the nature thereof, and Ib1 to remove any such Attorneytal4ri-Fact at my time and revoke the power and authority given to them. 2. Attornsylal•IrtFact Mall have power and authority. subject to the terms and limitations of the Power of Attorney muted to them, to execute deliver on behalf at the Company, bonds and undertakings, recoprtizances, contracts of Indemnify and other writings obligatory In the nature thereof. The corporate seat is not necessary for the validity of any bond$ Sod undertakings, recognizances, contracts of dndamnity and other writings obligatory In the nature thereof. 3. AUorteeri0-In4act *hail have power and authority to "@cut* affidavits required to be attached to bonds. recopnizences, contracts of kndernNty or other condtlonal or obrigHay, undertakings and that' " also have power sM authority to cartify the financial statement of the Company said to copies of the Sy-Liwa of the Company or any ertlda or soctlion Marmot. _ This Power of Attorney Is afgnad and "sled by facsimile udder and by authority of the following resolution adopted by the Executive and Fittanee Committees of the Dowd# of Directors of Reliance 'Insurance Company. United Pacific Insurance Company and Reliance National Indemnity Company by Unanimous Consent elated es of February 28. 1994 and by the Executive and Financial Conmitteeet of the Board of Directors of ReII$nce Surety Company by Unanitnow Consent dated as of March 31, 1994. 'Resolved fhet the signaturse of such directors and officers and the Said of the Company may be affixed to hest' such Power of Attorney or any certificates relating thereto by laesenlle.and any such Power of Attorney or certiflcele bearing Such fecaknile Sig nat pas or dscslmise Sod *hail be valid and binding upon the Company and any Such Power to executed and eartlfled by facsimNs Signatures and facskmNe seal Shell be void and boiling upon the Company, in the future with respect to any bond or undertaking to which it is attached.' IN WITNESS WHEREOF, the Companies have caused these presents to be signed and their corporate seals to be hereto affixed, this July 19, 1996. "v .01 Me. oxv ni 'rl -Tti�►t.gJIL�iii Y STATE OF Washington - } COUNTY OF King ) ss. RELIANCE SURETY COMPANY RELIANCE INSURANCE COMPANY UNITED PACIFIC INSURANCE COMPANY RELIANCE NATIONAL INDEMNITY COMPANY /44 On this, July IS, 1996, before me, Janet Blankley, personally appeared Mark W. Alsup, who acknowledged himself to be the Vice President of the Reliance Surety Company, and the Vice President of Reliance Insurance Company, United Pacific Insurance Company, and Reliance National Indemnity Company and that as such, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the corporation by himself as its duly authorized officer. In witness whereof, 1 hereunto set my hand and official seal. fCbyit ' Public in and for the State of g at Puyallup 1, Robyn Layng, Assistant Secretary of RELIANCE SURETY COMPANY, RELIANCE INSURANCE COMPANY, UNITED PACIFIC INSURANCE COMP- ANY, and RELIANCE NATIONAL INDEMNITY COMPANY do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is still in full force and effect. IN WITNESS WHEREOF, 1 have hereunto set my hared and affixed the seats of said Companies this 11TH day of MAY- 1sAl.e ` 1 A>ZAL � ifii 1 Assistant _Secretarri t�:4 _ ;,•y.-.'w -may -- - .. 19 98 0 Go x w 0 60 BLUE'SIRD Recycled Paper (3W) 477.0700 • • Reliance Surety Corny A Reliance Group Holdings Ccvnpany 2=4t5 South ::thh Street Federal Way. W-A 98003 Bo% 0719 Frdev it «a:. AA 98t16'-9' I � - - - --c x{-,.. 0 Reliance April 10, 1998 Mr. William D. Locher Attorney at Law One Century Plaza, 34th Fl.. 2029 Century Park East Los Angeles, CA 90067-3039 Re: Reliance Insurance Company Bond No.: B-1922543 (W96-1708) Principal: Pro Contracting, Inc. Obligee: City of Huntington Beach Project: Peck Reservoir Lawsuit: Orange County Superior Court Cause No. 765940 Dear Mr. Locher: Reliance Insurance Company, party to the referenced lawsuit has read the Settlement Agreement resolving this dispute. Reliance Insurance Company consents to settlement of the dispute on the terms set forth in the attached Settlement Agreement. Reliance consents to payment of all amounts as set forth in the attached settlement document. Please call if you have any questions. Very truly yours, RELIANCE INSURANCE COMPANY v� #Mel � R. Scott Cochrane Assistant CIaim Manager Bond Claims Department RSC/alf Enclosure cc: Mr. James Reid Pro Contracting, Inc. PMC0A rading198.1708Uoch410 EXHIBIT 8 OJBLUEBIRQ A Recycled Paper (310) 477.0700 • 0 • oolo-LL b to v jadaa pap-Aaad aVl93i 7vc:; D Maintenance and Repair Program Bondcote Warranted Roofing System Scope of Program: The scope of this program is to provide the Owner assurance that the roof is Properly maintained to provide the maxi nmm life from the roof system and protect the coverage the Bondcote warranty picnidcs him. By participating m this Maintenance and Repair Program contract, the Owner transfer to the Conft=r, the burdens and concerns of roof maintenance management and all it entalls. The Contractor win perform periodic inspoct ors, prepare a written report documenting the findings, and needed maintena=. Non -maintenance work not covered under this program that are "covered repairs" as stated in the warranty tests will be wzuted under the warranty. Non -warranty repairs will be performed as required by Bondcote and approved by the Owner. In doing so, you can be auvred that your and will have every opportunity to perform to its maximum poundal. . This is = an insurante policy against negligence on the part of an owner, or against damage to the roof caused by any party or event, whether or not approved by the Owner. It should be renieanbered that ymw Bondcote warranty cats be voided or bane significant restrictions placed for reasons you may not be aware o� so please refer to rite Terms and Conditions of your warranty to fully understand your coverage. Explanadon of Coverage: This maintenance and repair contract will provide an annual visual inspection of the roof system covered by this agreement. The findings will be docirmentei in a written report which should be included in your property management files. Coverage includes: R Loose debris on the roof system such as leaves or other foliage, pedestrian litter or other items which could hinder or pim= water outlds from draining will be removed. IN The roof system shall be cleaned with water, a light broom and detergent if necessary. a Exposed sealants wW be'inspected and repaired as needed to maintain the watertight condition. w Normal maintenar= and repair to mewbrm e: flashings an included in this agreement. Physical damage caused by conditions other than normal weathering is not covered by this agreement. Repairs that are not coveted by the warranty of this agreement, but are necessary to maintain the watertight integrity of the roof will be performed and charged to the Owner at an agreed rate or estimated fee. Repairs not detriucental to the watertight integrity of the roof will be performed only at the direction of the Owner. When possible and depending on weather conditions, repairs will be performed using the same materials as originally installed. )Fees for Services: Fees will be charged on an annual basis. The annual fee for the property located at 14561 Sprinv-dale. Huntineton Beach. CA will be $ 4 , 0 0 0.0 0 _ This service contrd= is in effect from * to Needed services beyond the basic services of this agreement will be proposed to and approved by elm Owner and will be payable in full within 15 days of completion of work. Excessive weather delays may require a progressive payment schedule be implemeated. Nonpayment of services by the Owner will res4 in the cancellation of this contract. E' xclusion8: This program does not provide for maintenance or replacement due to premature frill, of non -roof items not supplied by Bondcote. * effective date to be determined by market consistent with Settlement Agreement to Orange County. Superior Court Action No. 765940. EXHIBIT 9 • Maintenance and Repair Program Page Z Furd= =clns m are dame due to sb =oul mnv mma, building dWpt or eamsir cbw , cbaaga in bufldmg usage that waild advcm* a&d the too4 cluemical or enviroamaatal attacks, falling objects, iwgligeaoe on the part of parties otters than titre conumtor, wtural distt$W% such as but not limited too Wind. Hutr =m s, Hai[, Fue; Floods, Lightning, Tommicrs, or FarthgoakeL f Contractor. n ccamny By Title: Vice President • V Date- 6, 1998 Owner. By: Title: Date: r . Rates For non -covered, non-iwarrantr._d_retiairs., .Cast of matuiak and freight, plus 15% Labor $59.001hour thm 08/01M, add 3.5% annually dotaitrr • EXHIBIT 10 ffStME8/AD Recycled Paper Q f pJ 477-0700 • • 4 A f;NEY OR PARTYWMOUTATTORNFY AlaW AMAditise): TELEPHONE NO.: (310) 552-3400 FOR COU r UN OILY William D. Locher, CSB 090548 GIBBS, GIDEN, LOCHER & TURNER LLP 2029 Century Park East, 34th Floor Los Angeles, CA 90067-3039 ATTORNEY Roo awns): CITY OF HUNTINGTON BEACH Insert name of court and new of )uaGel dISM and ttianch court. if any: y ORANGE COUNTY -SUPERIOR COURT MAIN -BRANCH PLAINTIFF/PETITIONER: THE CITY OF HUNTINGTON BEACH OEFENDANT/RESPONDENT: MONTGOMERY WATSON AMERICAS, INC. REQUEST FOR DISMISSAL C7 Personal Injury, PropertyDafria . orwrangfulDeath CA=NUMSM [] Motor Vehicle Other 765940 IFamBy Law lindneint Domain ® other (apecillflrX COMPLAINT FOR MONEY A conformed copy wfir not be retuned by the clerk unless a method of return Is provided with the document 1. TO THE CLERK Please dismiss this action as follows: a. - (1) ® With prejudice (2) 0 without prejudice b. (1) Complaint (2) 0 Petition (3) [] Cross -complaint filed by (name): on 000 (4) Cross -complaint filed by (name): on (date): (5) 0 Entire action of all parties and all causes of action (a) ® other (specify):* Entire Action provided however, the parties expressly reserve the right to pursue itV claims against CMIfs insurance carrier. �0 . Date: AFR3E- - 1998 GI S, HER & ACRET WILLIAM D . LOCHER., ESQ.•................ . (TYPE OR PRINT NAME OF ® ATTORNEY Q PARTY WITHOUT ATTORNEY) {810NATURta ( SEE CONTINLiSIGNATURES ON ATTACam Attorne��rr or part��rr without attorney for: THE CITY OF C i 1 HUNTINGTQN BEACH eS isaw requested is of specined parties ony, of specified causes of ® Plaintiff/Patitioner [] Defendant/Respondent action only. Of of epertified aoas-compteinte only, so state end identify the parties. Causes of action, Of cross -complaints to be dlanisaed. Q Cross -complainant 2. TO THE CLERK: Consent to the above dismissal Is hereby given .00 Date; .................................................. (TYPE OR PRINT NAME OF © ATTORNEY Q PARTY VATHOUrATTORNEY) (SIGNATURE) Attorney or party without attorney for: o if a cross-eompralnt - or Response (FamW Law) aeerung amfineWe relief - Is on Tile, the attomay tm Moss -complement (respondent) O plaintlff/Petitioner Q Defendant/Respondent must sign this consent if required by Code of CM Procedure section sat (I) or O. Q Cross -complainant (To be completed by c)eric) 3. Dismissal entered as requested on (date): 4. 0 Dismissal entered on (date): as to only (name): 5. [,] Dismissal not entered as requested for the following reasons (specify): 6. 0 a. Attorney or party without attorney notified on (date): b. Attorney or party without attorne not notified. Filing party failed to provide Q a copy to conform means to return conformed copy Date: Clerk, by . Deputy Farm Adopted Cry the ode of CM ProIn seq. C Judicial council of California REQUEST FOR DISMISSAL car. Rules of Court. rules 383, 1233 mcani) (Rev. January i. S997) t CITY OF HUNTINGTON BEACH v. MONTGOMERY WATSON AMERICAS OCSC CASE NO. 765940 REQUEST FOR DISMMAL (SIGNATURES - CONTV4UED) DATED: April L' 1998 WOLFE - By: Thomas ."Gill, Esq. Attorneys for MONTGOMERY WAI 'l DATED: 1998 JAMES P.)IF.ID, A rosy at By: J es P. Reid, Attorneys for Defendant, - Cross -Complainant and Cross - Defendant, PRO CONTRACTING CORP. DATED: April —, 1998 QUADROS & JOHNSON By: Benjamin A. Johnson Attorneys for Cross -Defendant and Cross -Complainant, Anning-Johnson Company DATED: April _,, 1998 MURTAUGH, M[LLER, MEYER & NELSON, LLP By: Thomas J. Skane, Esq. Attorneys for Cross -Defendant, JACK KETTERING, individually and dba JACK KETTERING COMPANY DATED: April _, 1998 WULFSBERG, REESE, FERRIS & SYM By: Jeffrey A. Sykes, Esq. Attorneys for Cross -Defendant, REYNOLDS METALS COMPANY DATED: April _, 1998. Hotch Bedrosian, In Pro Per [AVILocHERUIUNTurUMAMACM ATTORNEY OR PARTY WITHOUT ATTORNEY (ManmaWAddnaa): TELEPHONE NO.: _Benjamin A. Johnson (650) 377-430C QUADROS & JOHNSON FAX NO: 1400 Fashion Island Blvd., Suite 800 (650) 573-1387 San M o Cali oruia 34404 ATTORNEY (ldarr»j: a- ohnson ComDanv Insert name at court and name of judicial district and branch court, it any. anpe County Superior Court PLAINTIFFIPETITIONER: CITY OF DEFENDANT/RESPONDENT: MONTGOMERY WATSON AMERICAS, et al. FOR COURT USE OMLY REQUEST FOR DISMISSAL CASE NUMBER: Personal Injury, Property Damage, or Wrongful Death Q Motor Vehicle ® Other 0 Family Law Eminent Domaln ® Other (specNy): Contract, Stop Notice 765940 — A conformed copy will not be returned by the clerk unless a method of return is provided with the document. — 1. TO THE CLERK: Please dismiss this action as follows: a. (1) XO With prejudice (2) = Without prejudice b. (1) O Complaint (2) 0 Petition (3) XQ Cross -complaint filed by (name): Anning-Johnson Company (4) [] Cross -complaint filed by (name): (6) Entire action of all parties and all causes of action (6) 0 Other (specify):' Date: May 6, 1998 Benaamin A. Johnson (TYPE OR PRINT NAME OF ® ATTORNEY[] PARTY WITHOUT ATTORNEY) If dismissal requested is of specified parties only, of specified causes of action only, or of specified cross -complaints only, so state and Identify the parties, causes of action, or cross -complaints to be dismissed. 2. TO THE CLERK: Consent to the above dismissal is hereby given." Date: (TYPE OR.PRINT NAME� OF•ATTORNEY ❑ PARTY WITHOUT ATTORNEY) If a cross -complaint —or Response (Family Law) seeking affirmative relief—ls on file, the attorney for crose-complainant (respondent) must sign this consent If required by Code of Civil Procedure section 581(1) or 0) on (date): November 20, 1996 on (date): Plaintiff/Petitioner 0 Defend antlRespo n dent Q Cross -complainant I (SIGNATURE) Attorney or party without attorne for: [] Plaintiff/Petitioner LL1 Defendant/Respondent 0 Cross -complainant (To be completed by clerk) 3. Dismissal entered as requested on (date): 4. Dismissal entered on (date): . as to only (name): 5. Q Dismissal not entered as requested for the following reasons (specify): 6. Q a. Attorney or party without attorney notified on (date): b. Attorney or party without attome not notified. Filing party failed to provide 0 a copy to conform El means to return conformed copy Date Clerk, by , Deputy Form Adopted by the Co REQUEST FOR DISMISSAL de ofCMIProcedure, §581"etaeq. Judicial Council of Cafdomia Cal. Rules of Court, rules 383. 1233 982(a)(5) (Rev. January 1.IN71 Jrrdic(slCorrncilFwnrrfarAatDow n CITY OF HUNTINGTON BEACH v. MONTGOMERY WATSON AMERICAS OCSC CASE NO. 765940 REQUEST FOR DISMLSSAL (SIGNATURES - CONTINUED) DATED: April 1998 MANNING, MARDER & WOLFE By: Thomas R. Gill, Esq. Attorneys for MONTGOMERY WATSON AMERICAS DATED: April _, 1998 JAMES P. REM, Attorney at Law By: James P. Reid, Esq. Attorneys for Defendant, Cross -Complainant and Cross - Defendant, PRO CONTRACTING CORP. DATED: April 1998 QUADROS & JOHNSON By: Benjamin A. Johnson Attorneys for Cross -Defendant and Cross -Complainant, Anning-Johnson Company DATED: April _, 1998 MURTAUGH, MILLER, MEYER & NELSON, LLP By: Thomas J. Skane, Esq. Attorneys for Cross -Defendant, JACK KETTERING, individually and dba JACK KETTERING COMPANY DATED: April , 1998 WULFSBERG, REESE, FERRIS & SYKES By: Jeffrey A. Sykes, Esq. Attorneys ' for Cross -Defendant, REYNOLDS METALS COMPANY DATED: April _, 1998 Hotch Bedrosian, In Pro Per 1:,vvL0CHERXHUN ivrcMPECKk ►an BLUEBIRD 1�� Recycled Paper (310) 477-0700 • • MAY 08 198 12:13 FR ML'RT P* MILLER 949 794 4099 TO 8394749646606 P.02/02 UNCONDITIONAL WAIVER AND RELEASE UPON FINAL PAYMENT [Civil Code § 3262(d)(4)1 The undersigned has been paid in full for labor, services, equipment or material furnished to Pro Contracting Corp. on -thc job of Peck Reservoir and Pumping Station, located at 14561 Springdale Street, Huntington Beach, California and does hereby waive and release any right to a mechanic's lien, stop notice, or any right against a labor and material bond on the job, except for disputed claims for extra work in the amount of $-0-. DATED: NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE CONDITIONAL RELEASE FORM. NOTE: This form of release complies with the requirements of Civil Code Section 3262(d)(2). EXHIBIT 11 ** TCTAL• PRGE.02 ** gft-LUEBIRD Co Recycled Paper 13 f 0! 477-0700 • • • ** UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT ** PROJECT: Peck Reservoir JOB NO.: 4066 The undersigned has been paid in full for all labor, services, equipment or material furnished to the jobsite or to JACK KETTERING COMPANY on the.job of City of Huntington Beach located at 14561 Springdale, Huntington Beach CA -and does hereby waive and release any Mechanic's -Lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned's position, except for disputed claims for extra work in the amount of $0.00. The undersigned warrants that he either has already paid or will use the monies he receives from this final payment to promptly pay -in full all of his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to -the above -referenced oroiect. DATE: April 20, 1998 NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND.STATES 'THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. .IF YOU HAVE NOT BEEN PAID,' -USE A CONDITIONAL RELEASE FORM. EXHIBIT 12 • • EXHIBIT 13 Sma-LUEB/RO Recycled Paper (310) 477-0700 • • AG C 41VER1��• CALIFORNIA UNCONDITIONAL WAIVERAND RELEASE UPON FINAL PAYMENT, The undersigned has been paid in ftaq--for.all labor, services, equipment or material furnished to Pro Contracting Corporation on the job of City o�f Huntington Beach (Your Customer) (Owner) located at 14561 Springdale Street and does hereby waive and release any right to a mechanics lien, stop notice, or any right against a labor i1nd material bond on the job, except for disputed claims for extra work in the amount of $ (none Dated May 5, 1998 -Johnsonl Company . Title ice President NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU -IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL RELEASE FORM. NOTE: This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This form is intended to meet the requirements of California Civil Code Section 3262(d)(4) as of January 1, 1994. 01994 Associated General Contractors of California, Inc. Form AGCC- 13 EXHIBIT 13 C—::TBLUE6/RO Recycled Paper ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA RELEASE OF STOP NOTICE (Public or Private Work) . TO. City of Huntington Beach Construction Lender (or party with whom Stop Notice was filed) . 2000 Main Street,.Huntington Beach, CA (Address) You are hereby notified that the undersigned claimant releases that certain Stop Notice dated August 22, 1.996 In the amount of $ City of Huntington Beach 61,763.50 againstyti as owner or public body and (if applicable) Pro Contracting Corporation Peck Reservoir as prime contractor in connection with the work of improvement known as Roof Construction, 14561 Springdale Street in the City of Huntington Beach —,County of _.Orange State of California. Date May 5, 1998 Anning-Johnson Company Name of Claimant rm Dame) +a. &Bature) ice Preside:it (Official Capacity) © Associated General Contractors of California, Inc. 1990 Form AGCC-21 &7BLUEB/RD C? Recycled Paper (310) 47T07W • BONDCOTE April 2, 1998 Mr. Rick Kent Anniug- Johnson 13250 Temple Avenue Industry, CA 91746-1228 Re: Peck ReservoirXuntington Beach Dear Mr. Kent; When the Peck Reservoir project was first presented to BondCota, we spent time evaluating the feasibility and technical merits of the situation. We understood the limitations of the existing constraction and the environment that the structure is exposed to. During this review, we consulted with the Technical Department of our fastener supplier. After careful considerations it was agreed that this project was technically sound. Reviewing the specifications and re -calculating the fastener loading for the BondCote membrane, it is still my belief that the proposed system will perform as expected. As stated in a previous letter, Bondcote shall issue the Ten Year Standard Warranty, upon successful completion, passing the final inspection and meeting all Bondcote requirements. The assembly for this installation shall be: 1. Existing Aluminum Deck 2. 6 mil Polyethylene film with a minimum 2 inch overlap, taped. All penetrations shall also be scaled with tho 6.m1l poly film and tape. 3. V. inch. minimum exterior grade plywood fastened to the deck with a minimum of four fasteners par board. The first course of plywood, at the perimeter, shall have a minimum of six. fasteners per board. There shall bean 1/8 inch gap between the boards of plywood. 4. New Bondcote membrane to be installed perpendicular to the plywood, and shall.be fastened at a maxirmum'of eight inches on center. Please call me at 800-368-2160, if I may be of any assistance. Si erely Ioseg J. S hw~ Tc ical.Services Manager cc: A. Pocock S. Shaver SondCoic Cotporailon 984 Southford Road, Middlebury. CT 06762 203/s77410o http-/iwww.bondcate.com aGO/36a•2160 FAX: 203/577-4101 MMIBIT 15 g��j���Rj� ��} Fircycicd F'ay3c3 !?}?; =177-0700 • 0 C I LUE81RD ^�„j Recycled Pager (370) 477'-0700 • • • MONTGOMERY WATSON March 25, 1998 City of Huntington Beach P.O. Box .190 2000 Main Street Huntington Beach, CA 92648 Attention: Mr. Les M. Jones II Director of Public Works Subject. Proposed Roofing Fix - Peck Reservoir Gentlemen: Ashok K. Dhingra Vice President As requested by the City, the following are Montgomery Watson's comments regarding the proposed fix. The proposed plywood layer over the existing aluminum roof panels is a different system than the built up roofing over the plywood proposed by the contractor in the RFI Nos. 1 and 3. Therefore, the comments in response to RE Nos. 1 and 3 do not apply. 5 The proposed plywood system on top of a visqueen layer over the metal deck along with BondCote on top of the plywood renders the plywood panel to be sandwiched between the plastic material on each side. In our opinion, this system offers a better alternative to the Isoboard and the Polystyrene Systems which were proposed earlier and is suitable for use in this application. The expected life of this plywood framing system is easily up to ten years with routine maintenance. A calculation sheet, showing that the existing system is capable of supporting the weight of the proposed plywood system, is attached. Very truly yours, � ,� Ashok K. Dhingra Vice President AKDInh 301 North Lake Avenue To 1: 626 796 9141 Suite 600 Direct : 526 568 6150 Pasadena, California Fax: 626 568 6101 91101 Servi.1g tha World's Enyiro.n henfa:' :: EXHIBIT 16 CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION Connie Brockway, City Clerk Office of the City Clerk .ry „ Jennifer McGrath, Deputy City Attorney FFR49M: Connie Brockway, City Clerk cB DATE: .June 8, 1998 SUBJECT: SETTLEMENT AGREEMENT - REGARDING PECK RESERVOIR LITIGATION - CITY OF HUNTINGTON REACH v. MONTGOMERY WATSON.-ET AL On April 23, 1998 the City Clerk's Office signed eight copies of the signature page for the Agreement far Settlement of Claims and Mutual General Releases with Montgomery Watson Americas, Inc. at that time we requested an executed original/copy for our file. Have you received an executed original/copy of this agreement yet? If not, what is the ETA (estimated time of arrival) for this agreement? ✓r 7h.e6-7 qvvl�_" . . �t 0_,0 ktvi 4�m �Pq c,nn -4-4rVI v-4 -- z o.a:: Waan; MXV >M g; cbme mos\98cbmem198-19mh a YiCe Notes offic e of _ Huntpngpn -, C i y / l r- f p , - a U � •. r Vti n� N1 \W / the City Clerk Beach, California PE {/� p� -- _ - DATE (MMiDDNY) <: 8120/98 PRaDucEli 562.923-9631 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION BOWermaster & Associates �/ ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 6� C/e� IQU� f HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Insurance Agency, Inc. ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. i , l 10631 Paramount Blvd. e Al2a - • COMPANIES AFFORDING COVERAGE Downey, CA 90241-010Zo Q COMPANY 9v A Navigators Insurance Co INSURED I COMPANY Pro Contracting Corp. B Transportation Ins 1785 Sampson Avenue COMPANY Corona CA 91719 C Employers First Ins COMPANY D THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO POLICY EFFECTIVE POLICY EXPIRATION TYPE OF INSURANCE POLICY NUMBER LTR I DATE IMMIDDiYY1 DATE (MMIDDIYYY LIMITS A GENERAL LIABILITY 97G2695 12/30/97 1 1130198 GENERAL AGGREGATE 6 200000C X COMMERCIAL GENERAL LIABILITY - PRODUCTS • COMPIOP AGG 6 1000000 i CLA VI5 MADE CCC'JR PERSONAL & ADV INJURY 6 1000000 I i OLYNER'S &CONTRACTOR'S PRDT i - I EACH OCCURRENCE 6 1000000 FIRE DAMAGE (Any one fire) I S 50000 MED EXP (Any one parson; S 5000 MED EXP (Any one parson; S 5000 B AUTOMOBILE LIABILITY C1 35080156 1 1120/97 1 1 /30/98 X ANY AUTO COMBINED SINGLE LIMIT $ I 1000000 ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS Ar4�it�.+v>;D A5 0 FO�� S (Per person) I X HIRED AUTOS (;AIL H ti1TT0� BODILY INJURY S (Per accident) X NON -OWNED AUTOS v CI Y ATT PROPERTY DAMAGE 6 GARAGE LIABILITY V Ci p AttoTnIaT AUTO ONLY - EA ACCIDENT S OTHER THAN AUTO ONLY, - ANY AUTO - EACH ACCIDENT 6 AGGREGATE S A EXCESS LIABILITY 97GO30044 12/30/97 1 1 /30198 EACH OCCURRENCE 6 4000000 AGGREGATE 6 4000000 LAIBRELLA FORM S X OTHER -HAN UMBRELLA FORM C WORKERS COMPENSATION AND WCN 303$67 2 6120196 $120/99 .WC STATU• OTH EMPLOYERS' LIABILITY I- - - - "' - - ^ — EL EACH ACCIDENT s 1000000 EL ❑ZEASE - POLICY LIMIT 6 1000000 TH=- PROPRIETOR: . INCL I - PARTNERS!EXEC'JTIVE — EL DISEASE - EA EMPLOYEE S 1000000 OFFICERS ARE: EXCL . OTHER ADD'L.INSURED Ear lJ„a i„_I.I r id:r'C116? DESCRIPTION OF OPERATIONSILOCATIONSNEHICLESISPECIAL ITEMS CITY OF HUNTINGTON BEACH, ITS AGENTS, OFFICERS, AND EMPLOYEES ARE HEREBY ADDED AS ADDITIONAL INSURED BUT ONLY AS THEIR INTEREST MAY APPEAR IN: THE OPERATIONS OF THE INSURED I ' SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF HUNTINGTON BEACH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL KMKdrdiKIW MAIL ATTN: PAUL WHITELY 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 2000 MAIN STREET#c1rA>dx�6xn>�A�c�ill;acKfdtpcll>E�6D6xd4�aWEi�li�6atXlXurl>¢>� HUNTINGTON BEACH, CA 92648 vaxmox a XVAKXNXXxa*Kaz)gydcmmKXO AMKN X=S. AUTHORIZED R RE ATIVE 1998 AUG 24 PH 3. 30 RISK MAlkiAGtMENT 'A.; CITY OF H E C E I V E D 'HUNTINGTON Mrr,_CH. CA CITY ATTORNEY HUNTINGTON BEACH jqq$ AUG 2q A 10- 15 X� F IP moo. Inc 6W,14 POLICY NUMBER: 97G2695 COMMERCIAL GENERAL liability P/ed/y7��� NAMED INSURED: PRO CONTRACTING CORP THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -- OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMM ERCIAL'GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person or Organization: MONTGOMERY WATSON AMERICA INC & its servants, employees, officers, directors, Subsidiaries, agents, successors, attorney's, insurers, consultants and THE CITY OF HUNTINGTON BEACH (If no entry appears above, the information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section 11) is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of "your work' for that insured by or for you. Contractor shall hold County of Riverside its officers, agent, and employees free and harmless from any liability whatsoever, including wrongrul death, based or asserted upon any act or omission of Contractor, its officers, agents, employees or subcontractors relating to or in anywise connected with or arising from the accomplishment of the work, whether or not such acts or omissions were in furtherance of the work required by the Contract Documents and agrees to defend at his expense, including attorney fees, Owner, County of Riverside its officers, agents and employees in any legal action based upon any such alleged acts or omissions. CG 2010 1185 Copyright, Insurance Services Office, Inc., 1984 LAP,R0P ° -- ' 3 ;:-.. --€ - `• � .- DATE(MKDD1YY) j Al,flltlk EVIDENCE_O ROPERTY.'INSURAN - .= ` ! �: • . .�.f in �g,�798 THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED_, IS IN FORCE, AND CONVEYS ALL THE RIGHTS AND PRIVILEGES AFFORDED UNDER THE POLICY. PRODUCER PHONE 312--346-3000 COMPANY SEDGWICK JAMES�L&Q-Ra�ExO SECURITY INS. CO. OF HARTFORD OF ILLINOIS, INC. C/O WM. H. MCGEE & CO., INC. 230 WEST MONROE STREET ATTN: JOE BIELAWSKI CHICAGO, IL 60606-4998 500 W. MONROE, STE 2630 CHICAGO# ILLINOIS 60661-3618 CODE: - SUB CODE: AGENCY PT TN : AUR I E M. DEKR U I FF GUSTOMERRIp. INSURED LOAN NUMBER POLICY NUMBER ANNING—JOHNSON COMPANY CCMG31350 P.O. BOX 122B EFFECTIVE DATE EXPIRATION DATE CONTINUED UNTIL CITY OF INDUSTRY, CA 91749 5/07/98 8%07/98 IrTERMINATED 'FCHECKED ATTN: DONNA KERR THIS REPLACES PRIOR EVIDENCE DATED: PROPERTY INFORMATION LOCATIOMDESCRIPMON SEE REMARKS SECTION FOR LOCATION COVERAGE INFORMATION COVERAGE+PERIL&FORMS AMOUNT OF INSURANCE DEDUCTIBLE BUTL6ER' R iSVt COVERAGE: PROPERTY AT THE CONSTRUCTION PREMICES 275,000 PROPERTY OFFSITE OR IN TRANSIT 10,000 FLOOD AND EARTHQUAKE 275,000 DEDUCTIBLES: PROPERTY: $5, 000 , FLOOD: $25, 000 EARTHQUAKE: 5% OR $25, 000 MIN. REMARKS (Including Special Candltlons) RE: PECK RESERVOIR AND PUMPING STATION RENOVATION AT 14561 SPRINGDALE• STREET, HUNTINGTON BEACH, CA. MONTGOMERY WATSON AMERICAS, INC. AND THEIR OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES AS ADD `L INSUREDS---.. WITH RESPECT TO THE BUILDERS RISK COVERAGE. ORIGINAL CANCELLATION Z- THE POLICY IS SUBJECT TO THE PREMIUMS, FORMS, AND RULES IN EFFECT FOR EACH POLICY PERIOD. SHOULD THE POLICY BE TERMINATED, THE COMPANY WILL GIVE THE ADDITIONAL INTEREST IDENTIFIED BELOW 30 DAYS WRITTEN NOTICE, AND WILL SEND NOTIFICATION OF ANY CHANGES,TO THE POLICY THAT WOULD AFFECT THAT INTEREST IN ACCORDANCE WITH THE POLICY PROVISIONS OR AS REQUIRED BY LAYOUT FAILURE TO MAIL NOTI ADDITIONAL INTEREST SHALL IMPOSE_ NO :OBL`IGATIf -N OR` ;LI:AB.: OF ANY:;K'IND::UPON THE=`CO , _ ^ NA ME-ANDAODRESSAGENTS OR REPRESENTATIVES MORTGAGEE ADD,TIONAL INSURED CITY OF HUNTINGTON BEACH LOSS PAYEE LOAN N 22- 9 AUTHORIZ REPRESENTATIVE _ ACORD 27 (3193) !� - ; � " ® ACORD CORPORATION 1993 W ANSON OILA i AcoRD�,' CERTIFICAT QF LIABILITY INSURA E °"`"'°°"" - 05/07/98. PRODU `R ��-I)GWTCK Js'�MFS K JA THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION [3E ILL INC. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 230 WEST MONROE STREET ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. CHICAGO, IL 60606--499E3 COMPANIES AFFORDING COVERAGE COMPANY ATTN:' LAURIE M. DEKRUIFN A Travelers Indemnity of IL INSURED COMPANY ANNING--JOHNSON COMPANY B P.O.-BOX 1220 i COMPANY_ CITY OF INDUSTRY, CA 91749 I C ATTN: DONNA KERR COMPANY D COVERAGES _ _ _ _ _ _ _ _ _ THIS (S TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REOUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE LTR POLICY NUMBER POLICY EFFECTIVE 'POLICY EXPIRATION DATE (MMIDDNY) DATE (MMIDDNY) LIMITS A GENERALLIABILITY UC2JGLSAS i5G0i,T0 8/01 /97' 8/01 /98 GENERAL AGGREGATE $ 2000000 PRODUCTS - COMP/OP AGG S 1000000 X COMMERCIAL GENERAL LIABILITY CLAIMS MADE F RI OCCUR 1 ( PERSONAL & AOV INJURY S 1000000 EACH OCCURRENCE 5 1000000 OWNER'S& CONTRACTOR'SPROT FIRE DAMAGE (Any one fire) iS 1000000 X PER PROJECT GENERAL AGGREGATE I MED EXP (Any one person) S 5000 AI AUTOMOBILE LIABILITY UC2JCAP2B0K3919 8/01/971- 8/01/98 ANY AUTO COMBINED SINGLE LIMIT S 1000000 X ALL OWNED AUTOS BODILY INJURY S SCHEDULED AUTOS (Per person) X HIRED AUTOS ` BODILY S NON-OWNED AUTOS f (Per J ir- f I'--'" PROPERTY DAMAGE S [GARAGE LIABILITYV �^—ljl AUTO ONLY -EA ACCIDENT S OTHER THAN AUTO ONLY: ANY AUTO I + EACH ACCIDENT S AGGREGATE 'S EXCESS LIABILITY EACH OCCURRENCE $ AGGREGATE 5 UMBRELLA FORM S i I OTHER THAN UMBRELLA FORM A WORKERS COMPENSATION AND UCL�JUEJS1# G019¢? �II01ItIT 8/U1 /98; )(+ WCSTATU- LOTH - EMPLOYERS' LIABILITY U C 4 J UB845 C3 020 7 (CA) : `��RKUmj EL EACH ACCIDENT $ 1aoo00a THE PROPRIETOR? X INCL' (Includes Stop Gap Coverage.) EL DISEASE- POLICY LIMIT S 1000000 PARTNERS/EXECUTIVE . OFFICERS ARE: EXCL I EL DISEASE - EA EMPLOYEE S 100000 ) OTHER ORIGINAL DESCRIPTION OF OPERATIONSILOCATIONSIVEHICLESISPECIAL ITEMS RE: PEC R RESERVOIR AND PUMPING STATION RENOVATION ,AT .14561 SPRINGDALE' STREET, HUNTINGTON BEACH., CA *-xE,�: ATTACHEO FOR ADD'L WORDING** CERTIFICATE HOLDER — CANCELLATION-_ CITY - OF HUNTINGTON 3�) AL'H �� _ �—SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL-GWROANGR+;P MAIL `DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 22— 9 AUTHORIZ REPRESEN VE1,+ �G `r. ACORD 25-S-(1195) _ - - - - - - -v - - O ACORD CORPORATION 1988 Gli— C'B/ CERT54_1 PRODUCER Sedgwick James of Illinois, Inc. 230 West Monroe Street Suite 2400 Chicago, IL 60606 (312)346-3000 Contact: Laurie M. DeKruiff INSURED Anning-Johnson Company PO Box 1228 City of Industry CA 91749 Attn: Donna Kerr THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER_ THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICY BELOW. COMPANIES AFFORDING COVERAGE ETTER Y A Travelers Indemnity of IL COMPANY B American National Fire LETTER COMPANY �+ LETTER C COMPANY LETTER D THIS DESCRIPTION OF OPERATIONS ATTACHEMENT MAY BE RELIED UPON ONLY IF THE CERTIFICATE REFERRED TO HEREIN IS ATTACHED HERETO. THE FOLLOWING IS (ARE) ADDITIONAL INSURED(S) UNDER POLICY NUMBER UC2JGLSA845G0220, BUT ONLY WITH RESPECT TO LIABILITY ARISING OUT OF OPERATIONS DESIGNATED BELOW, PERFORMED BY THE NAMED INSURED FOR SUCH ADDITIONAL INSURED, AND FOR WHOM THE NAMED INSURED HAS AGREED BY WRITTEN CONTRACT TO PROVIDE BODILY INJURY OR PROPERTY DAMAGE LIABILITY INSURANCE. THE FOLLOWING IS (ARE) NAMED AS ADDITIONAL_ INSURED ON POLICY NUMBER UC2JCAP280K3919 BUT ONLY WITH RESPECT TO THE INSUREDS OPERATION OF COVERED AUTO DURING THE POLICY PERIOD. OPERATIONS RE: PECK RESERVOIR AND PUMPING STATION RENOVATION AT 14561 SPRINGDALE STREET, HUNTINGTON BEACH, CA MONTGOMERY WATSON AND THEIR OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES POLICY UC2JGLSA845G0220 AND UC2JCAP280K3919 ARE PRIMARY INSURANCE WITH RESPECT TO THE INTERESTS OF THE ABOVE ENTITIES FOR THE ABOVE JOB, AND ANY OTHER INSURANCE MAINTAINED BY THE ADDITIONAL INSURED IS EXCESS AND NOT CONTRIBUTORY WITH THIS INSURANCE. THE COMPANY WAIVES ITS RIGHTS TO RECOVER ANY PAYMENTS MADE UNDER POLICY NUMBER UC2JUB845G019A AND UC4JUB845G0207 FROM DESIGNATED PERSONS OR ORGANIZATIONS NAMED ABOVE BUT ONLY ARISING OUT OF WORK PERFORMED BY THE NAMED INSURED UNDER A WRITTEN CONTRACT THAT REQUIRES THEY OBTAIN THIS WAIVER FROM US. IF ANY POLICY DESCRIBED ABOVE IS CANCELLED BY THE ISSUING COMPANY DURING THE POLICY TERM FOR OTHER THAN NONPAYMENT OF PREMIUM, THE ISSUING COMPANY WILL MAIL NOTICE 30 DAYS BEFORE THE EFFECTIVE DATE OF SUCH CANCELLATION TO THE PARTY NAMED ABOVE. HUNTINGTON BEACH • GIBBS, GIDEN, LOCHER & TUR3vER LLP A UMITEC LIABILITY LAW PARTNERSHIP TELEPHONE 1310) 5SR-3w00 ONE CENTURY PLAYA. 34'- KLOOR KACSIMILE 13101 552-0605 202fl CENTURY PARK EAST INTERNET HTTPJ/WWW.GG4T.GOM LOS ANGELES, CALIFORNIA 90067-3039 May 19, 1998 Mr. Jeffrey Renna Ms. Deborah DeBow City of Huntington Beach Water Operations P.O. Box 190 Huntington Beach, CA 92648 Mr. Eric Charlonne City of Huntington Beach Department of Public Works 2000 Main Street Huntington Beach, CA 92648 OI.IR •ILE NO Re: Modifications and Repairs at Peck Reservoir Matter: City of Huntington Beach v. Montgomery Watson Americas OCSC Case No. 765940 Dear Jeff, Debbie and Eric: Enclosed is a copy of the Agreement for Settlement of Claims and Mutual General Releases ("Agreement") which was negotiated and signed in connection with the resolution of the above -captioned matter. Concurrently with this correspondence, the original Agreement and Exhibits are being delivered to Gail Hutton and Jennifer McGrath. Attached to this Agreement as exhibits, are copies of the following documents: EXHIBIT NO. DESCRIPTION Exhibit 1 The Sealed Specification Exhibit 2 Structural calculations • • Ms. Deborah DeBow May 19, 1998 Page 2 EXHIBIT NO. DESCRIPTION Exhibit 3 (Proposed) Single -ply Roofing System Guaranty from BondCote Exhibit 4 Conditional Single -ply Roofing System Guaranty from ANNING JOHNSON Exhibit 5 Work Letter describing the repairs and/or modifications to the cast -in - place concrete liner Exhibit 6 PRO's Guaranty for the liner Exhibit 7 PRO's Guaranty Performance fond Exhibit 8 RELIANCE Consent Letter Exhibit 9 (Proposed) Maintenance Contract Exhibit 14 Request for Dismissal of the pending action Exhibit 11 KETTERING's Unconditional Waiver and Release Upon Final Payment on the Project Exhibit 12 ACE's Unconditional Waiver and Release Upon Final Payment on the Project Exhibit 13 AJ's Unconditional Waiver and Release Upon Final Payment on the Project Exhibit 14 AJ's Release of Stop Notice in favor of CITY on the Project Exhibit 15 BondCote letter re roofing system ILE 16 MWA letter re roofing system As you will note from your review of the Agreement and the above -referenced exhibits, the proposed repairs to the concrete liner are described in paragraph III.B.4 (page 8) and the Work Letter which is attached as Exhibit 5. The proposed repair to the roofing system is described in paragraphs III.B.2 and III.B.3 (pages 6 and 7), the Specification (Exhibit 1) and the Structural Calculations (Exhibit 2). The repair to the roofing system is also mentioned in Side Letters from BondCote Roofing System (Exhibit 15) and Montgomery Watson (Exhibit 16). Ms. Deborah DeBow May 19, 1998 Page 3 As I mentioned in our previous discussions, Pro Contracting Corp ("Pro") and Anning Johnson Company ("Anning Johnson") have 20 days from the Closing to mobilize and begin work. Thereafter, Pro and Anning Johnson have 105 days to complete the contemplated work. These time periods started on Monday, May 18, 1998. Prior to commencing work on the roofing system I have asked counsel for Anning Johnson to provide the following documents: 1. The layout drawing for the "walk pads" on the roof, 2. A Certificate of Insurance for the requisite insurance; and 3. A sample of the BondCote material. I have asked counsel for Anning Johnson to direct this information to Eric at the above address. Finally, this is to reemphasize that City has an option to purchase an additional guaranty on the roofing system. This guaranty requires: (i) written notice to AJ; (ii) an additional payment of $10,000.00; and (iii) the execution of the Maintenance Contract. Should you have any questions with respect to this correspondence, please do not hesitate to contact me. Very truly yours, -~ 1l LC4.N � William D. Locher for GIBBS, GIDEN, LOCHER & TURNER LLP WDL:th Encl. cc: Gail Hutton Jennifer McGrath I: ti W LDCHERIHUNTWUMCKrI.M AEBOW.REN GIBBS, GIDEN, LOCHER & TURNER LLP A LIMITED LIABILITY LAW PARTNERSHIP TELEPHONE (310) 552-3400 ONE CENTURY PLAZA, 34- FLOOR - FACSIMILE 13101 552-0805 2029 CENTURY PARK EAST OUR FILE NO INTERNET HTTPJ/WWWGG-T-00M LOS ANGELES, CALIFORNIA 90067-3039 May 19, 1998 -' VIA FEDERAL EXPRESS PRIVILEGED AND CONFIDENTIAL Inc -_j Gail Hutton, City Attorney Jennifer McGrath, Deputy City Attorney CITY OF HUNTINGTON BEACH Box 190, 2000 Main Street Huntington Beach, CA 92648 Re: City of Huntington Beach v. Montgomery Watson Americas OCSC Case No. 765940 Dear Gail and Jennifer: Enclosed please find the following original documents: 1. Agreement for Settlement of Claims and Mutual General Releases; 2. Structural Calculations; 3. Specification for new roofing system; 4. Side Letter from Montgomery Watson Americas, Inc. ("Montgomery Watson") regarding adequacy of the roofing system; 5. Release of Stop Notice from Anning Johnson; 6. Conditional Roofing System Guaranty from Anning Johnson; 7. Work Letter for the Repair of the Concrete Liner; • Gail Hutton, City Attorney May 19, 1998 Page 2 8. Concrete Liner Guaranty; 9. Guarantee Bond for Concrete Liner; and 10. Certificate of Insurance from Pro Contracting Corporation. Concurrently with this correspondence, we are providing copies of each of these documents to Jeff Renna, Deborah DeBow and Eric Charlonne (copy of our letter enclosed). Additionally, we are asking counsel for Anning Johnson to provide us with the Certificates of Insurance for Anning Johnson Company. As you will recall, Anning Johnson Company is providing the Builders Risk Insurance for this project. Concurrently with this letter, counsel for Pro Contracting Corporation, James P. Reid, in disbursing the settlement proceeds. The disbursement of the settlement proceeds will consummate the Closing and will "start the clock" on the repair period. Mr. Reid has also filed the Request for Dismissal with the Clerk of the Court. We will provide you with a conformed copy of the Request for Dismissal as soon as we receive a conformed copy from Mr. Reid. Finally, this is to confirm that Anning Johnson's Guaranty for the Roofing System is conditioned upon City notifying Anning Johnson of its intention to purchase a Conditional Guaranty within the next ten months, City paying an additional $10,000.00 for the Guaranty and City entering into the Maintenance Contract which is attached as Exhibit "9" to the Agreement (see Paragraph B.III.3, page 7). Should you have any questions with respect to this correspondence, please do not hesitate to contact me. Very truly yours, William D. Locher for GIBBS, GIDEN, LOCHER & TURNER LLP LLVU= Encl. I:%WLOCMRURJNTINCMPECKXLTR1 xvrr-MAQ.512 r loadl.xls • INIONTGONIERY WATSON CLIENT: Huntington Beach/Peck Reservoir Date: 5-Mar-98 Weights for 2x12 members Vangard Deck- 0.81 psf 2x 12:@ 4' = 1.03 psf 1/4 -inch ACX Plywood = 0.79 psf (25#/32sgft) N'BR, 35mils = 0.23 psf (1004/442sgft) Visqueen 6 mil = 0.03 psf (57.4#/2000sgft) Misc = 0.12 psf Includes Bolts and Fasteners, etc... Total = 3.00 psf Tributary Width = 4.00 ft Total load to 2x = 12.00 If 9 Designed by Original estimated weight per talcs dated 7/21/89 pg 25 = 12.1 plf Since 12.0 plf < 12.1 plf, application of NBR system ok Weights for 5-1/4x2 VGLB members Vangard Deck= 0.81 psf 2xl2@4' - 1.03 psf 1/4 -inch ACX Plywood = 0.79 psf (25#/32sgft) NBI, 35mils= 0.23 psf (100#/442sgft) Visqueen 6 mil = 0.03 psf (57.4#/2000sgft) Misc = 0.12 psf Includes Bolts and Fasteners, etc... Total = 3.00 psf Tributary Width = 21.00 ft 5-1/4x21 BM WT = 24.45 plf Total load to GLB = 87.J0 If Original estimated weight per talcs dated 7121/99 pg 22 = 89.4 plf Since 87.35 pif < 89.4 plf, application of NBR system ok 36M W57 A-\i LE Page 1 dhL PRESCRIPTIVE REQUIREMENTS . NBR ROOFING SYSTEM PART 1-GENERAL 1.1 THE REQUIREMENT A. The CONTRACTOR shall furnish and install a watertight, warranted roofing system including all appurtenant work, complete, and shall inspect the areas for roofing work, and furnish all necessary labor, materials and equipment coordinating all of the work hereunder with the related roofing work and supporting structures in existence, so to assure functional integrity of the overall system for the existing Peck Reservoir in Huntington Beach, CA in accordance with the requirements of this Specification. . 1.2 DESCRIPTION OF WORK A. Installation of BondCote Roofing System over existing Vanguard Roofing System incorporating all vents, hatches, walkways, etc. 1. Install 6 mil Polyethylene film attached in accordance with BCRS requirements. 2. Install plywood, mechanically attached in accordance with BCRS requirements. 3. Install BondCote 35 mil membrane, mechanically attached in accordance with the BCRS requirements. 1.3 SUBMITTALS A. The CONTRACTOR shall submit the following information to the OWNER for review and acceptance: 1. Applicator's Qualifications: Submit a written certificate from the system manufacturer that the applicator has been factory -trained and is manufacture approved for this work. 2. System: Submit manufacturer's literature and/or printed installation data. Submit BCRS requirements regarding plywood and polyethylene installation. 3. Certificates: Submit evidence that the roofing system meets requirements as stated hereunder and the materials are compatible with the existing roofing system and new roof membrane system. 4. Layout Drawings: The roofing contractor shall verify all dimensions, including hatches, vents, walkways, etc,... in the field and prepare and submit layout drawings, prior to installing the polyethylene film and plywood. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PACE 1 of 10 • L 5. Certified Test Reports: With all product data, submit copies of certified test reports showing compliance with stated performance values, including, thickness, compression strengths, perm ratings, water absorption ratings, and other properties. 6. Warranty: Submit a 10 year manufacturer's labor and material warranty for the new materials furnished and installed to the OWNER upon successful completion and inspection by BCRS. 1.4 GUARANTEE AND CERTIFICATION A. Guarantee: The NBR roofing system shall be warranted by BondCote Roofing Systems Standard Warranty. This warranty shall cover new BCRS materials and installation labor for a period of 10 years after completion and final acceptance of the project. B. Certification: Upon completion of the work, the roofing applicator shall submit a certificate certifying that all new materials used conform to the requirements of this specification and were installed in accordance with the manufacturer's and/or BCRS's recommendations and instructions. 1.5 DELIVERY A. Deliver all materials to the jobsite in their manufacturer's unopened packaging with identifying labels intact. B. Handle all materials carefully to prevent damage to the edges or ends. C. Store all materials on clean raised platforms and cover with weather protective coverings. Keep all materials dry before and during application. B. Lay no more polyethylene film and plywood in one day than can be covered in the same day with a completed roofing membrane. PECK RESERVOIR RENOVATION PAGE 2 of 10 NBR ROOFING SYSTEM PART 2 - PRODUCTS 2.1 APPROVED PRODUCTS A. Provide products which are manufactured or approved by BondCote Roofing Systems for the application indicated. Where components are to be used which are not supplied by BondCote Roofing Systems, installer shall submit a list to BondCote Roofing Systems for review and acceptance prior to commencement of work. BondCote 984 Southford Road Middlebury, CT 06762 (909)784-8707. 2.2 MEMBRANE A. 'Field and Flashing membrane: BondCote polyester reinforced 35 mil NBP Single Ply Membrane with the following physical properties: CHARACTERISTIC RESUTLS TEST METHOD Color Tan ---- Thickness 35 Mil ASTM D751 Breaking Strength Warp 400 lbs. ASTM D751 Fill 300 lbs. ASTM D751 Elongation at Break Warp 30% ASTM D751 Fill 35% ASTM D751 Seam Strength 120% ASTM D638 Retention of properties after heat aging Break Elongation 95% ASTM D3045 90% ASTM D3045 Tearing Strength Warp 120 lbs ASTM D751 Fill 110 lbs ASTM D751 Low Temperature Bend Pass ASTM D2136 Accelerated Weathering Cracking Pass ASTM G53 Discoloration Pass ASTM G53 Crazinq Pass ASTM G53 Linear Dimensional Change a0.5 ASTM D1204 Change in Weight after Immersion in Water Pass ASTM D751 Puncture Resistance 300 lbs. FS101 Bmeth 2031 Tensile Strength 7000 .s.i. ASTM D882 EMMAQUA 4 million Ian le s ASTM G90 Accelerated Weathering 10,000 hrs FS191A No effects Hydrostatic Resistance 500 .s.i. ASTM D751 Hydrostatic Resistance No Cracking, MIL-C-20696C Blistering or Crazing Oil Resistance No Swelling, Cracking MIL-C-20696E or Leaking PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 3 of 10 • B. Membrane Sizes: 1. Full width sheets: 66-inches wide x 102-feet long 6e custom length. 2. Half width sheets: 33-inches wide x 102-feet long or custom length. 2.3 BCRS ADHESIVE AND ACCESSORIES A. BCRS Adhesive: Used to adhere BondCote flashing membrane to acceptable substrates. Application rates for Fiberglass Facer substrate shall be 1 3/4 gallons per square including 1/a gallons per square applied to the underside of membrane. 1. The CONTRACTOR shall vary application rates over rougher or smoother surfaces as necessary for proper adhesion. B. BCRS Accessories: BondCote Roofing systems; Standard accessories shall be used to form a complete roofing system. BCRS Accessories include: 1. BCRS Stainless Steel For aluminum substrate, BCRS #14 fastener Screws 2. BCRS Fastening Plates 2- 2-inches for membrane, 3-inches for plywood inches & 3-inches locking plastic plate 3. BCRS Termination Bar Type I, Cressent Bar; Type II, Y-inches Bar 4. BCRS Coated Metal 30 mil, unsupported NBP bonded to 24 gauge galvanized steel, 4-feet x8-feet sheets 5. BCRS Prefabricated Stack 8-inches, 10-inches , 12-inches , and custom siz Boots 6. BCRS Molded Outside 4-inches x4-inches x4-inches Comers 7. BCRS Unreinforced 24-inches x60-inches Roll Flashing 8. BCRS Pipe Banding --- 9. BCRS Caulk --- 10. BCRS Walk Pads --- C. Flashing: All flashing systems around hatches, vents, and edges of decking system shall be as recommended by BCRS. 2.4 BOLTS A. All metal accessories in contact with aluminum deck system, hatches, vents, etc., shall be stainless steel. B. Bolts Used to connect dissimilar metals shall be ASTM A193 and A194, Type 316 stainless steel. C. Dissimilar metals shall be fully isolated with methods acceptable to the manufacturer. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 4 of 10 • 2,5 2.6 f2 T►M614357 A. General: Comply with requirements indicated for materials and with manufacturers standards in sizes to fit applications indicated, selected from manufacturer's standard, widths, and lengths. B. Crickets: Provide tapered boards for sloping to drain at all access hatches. Fabricate boards for crickets with taper of -inch per foot, unless otherwise indicated. C. Plywood shall be '/a -inch ACX as rated by the APA Design/Construction Guide and U.S. Product Standard PS 1-83 For Construction & Industrial Plywood with Typical APA Trademarks for exterior application with one side smooth. D. Filler: Type approved by BCRS for filling voids in plywood surface. E. Mechanical Anchors: Corrosion -resistant type as recommended by plywood manufacturer for deck type complying with wind -uplift rating requirements. 1. All metal accessories in contact with aluminum deck system, hatches, vents, etc., shall be stainless steel. A. General: Comply with requirements indicated for materials and with manufacturer's standards in sizes to fit applications indicated, selected from manufacturer's standard, widths, and lengths. B. Polyethylene film shall be Contractor' Choice Plastic Sheeting as manufactured by Poly -America with the following physical properties: Thickness ASTM D374 DART IMPACT WVTR ASTM WVTR ASTM ASTM D1709 E96 E96 6 Mils 260 gm 0.23 gm/100 0.13 perms sq in -day C. Tape: Tape for taping seams shall be as recommended by BCRS. 2.7 WALKWAYS A. Walk Pads: Walk Pads shall be BondCote Walk Pads, 2-feet x3-feet thermal welded membrane. 2.8 AUXILIARY MATERIALS A. Sheet Seaming System: seal lapped joints, and membrane manufacturer. Manufacturer's standard methods for heat welding to covering exposed fasteners as recommended by PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 5 of 10 • • B. Cant Strips, Tapered Edge Strips, and Flashing Accessories: Types recommended by membrane manufacturer, including adhesive tapes, flashing cements, and sealants. C. Flashing Material: Manufacturers standard system compatible with single -ply membrane. D. Mechanical Fasteners: Metal or plastic plates, caps, battens, accessory components, and fastening devices to suit substrate and as recommended by membrane manufacturer. E. Membrane Adhesive: As recommended by membrane manufacturer for particular substrate and project conditions, formulated to withstand minimum 60- psf uplift force. F. VOC Requirements: Adhesives shall comply with local requirements limiting amounts of volatile organic compounds. PART 3- EXECUTION 3.1 GENERAL A. Remove existing walkway grating system. B. Protect existing work to remain in place. C. Prevent compounds from spilling or migrating onto surfaces of other work. D. Installation shall be made watertight at the end of each day. E. Provide expansion joint continuous at every end lap as shown in the attached detail by BondCote as modified for this specific project. Fasteners for either plywood or NPB shall not penetrated Vanguard deck at the nominal 6-inch or 12- inch end lap and shall maintain a minimum distance of one -inch to each end of the Vanguard deck at the end lap as shown in the attached detail. F. Flashing: All hatches, vents, and edges of decking system shall be flashed as recommended by BCRS- G. CONTRACTOR shall not apply materials until substrate conditions are acceptable to BCRS for warranty purposes. Application of materials constitutes agreement between the CONTRACTOR and BCRS that substrate is suitable for installation of the BondCote roofing system. 3.2 SUBSTRATE PREPARATION A. The substrate shall be structurally sound and suitable to accept the new roof system. Roof test cuts and fastener pull out tests shall be performed in PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 6 of 10 • • accordance with BondCote Roofing Systems recommendations to verify deck condition and adequate fastener pullout resistance on tear off and recovery applications. B. Comply with manufacturer's instructions to prepare substrate to receive single -ply membrane system. C. Verify that penetrations, expansion joints, and blocking are in place and secured. D. The substrate shall be smooth and free of dust and debris. E. The substrate shall be free of sharp edges or other surface projections irregularities which would be detrimental to the installation of the roofing system prior to the start of work. F. Install cant strips, flashings, and accessory items as recommended by manufacturer. 3.3 INSTALLING POLYETHYLENE FILM A. General: Extend polyethylene film over entire surface, cutting and fitting tightly around obstructions. 1. .Stagger joints in one direction for each course with no gaps, to form a complete barrier. 2. Provide 2 -inch minimum overlaps, taped. 3. Seal all penetrations with polyethylene film, taped. K � 6tMRPLWWA1,0419191 A. Apply plywood units to substrate perpendicular to NBR membrane with finished side down complying with manufacturers recommendations with mechanical anchorage to provide permanent placement and support of units. B. Do not install more plywood in a day than can be covered with membrane before the end of the day or before the start of inclement weather on any day. C. Secure roof plywood to substrate with mechanical anchors of the type and spacing indicated by the manufacturer but in no case provide less than four fasteners per four -foot by eight -foot board with the first coarse of plywood at the perimeter of the roofing system to have a minimum of six four fasteners per four - foot by eight -foot board. D. Long edges of the plywood shall not terminate in a flute. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 7 of 10 3.4 INSTALLING MEMBRANE A. Installation to be performed in the adequate presence of manufacturers technical representative as agreeable to BCRS. B. Cut out and repair membrane defects at the end of each day's work. C. Install membrane by unrolling the entire length of the first membrane sheet and position sheet exactly in the desired position as acceptable by BCRS over prepared substrate, lapping adjoining sheets as recommended by manufacturer, and bonding laps with heat weld to seal seams. D. All end laps shall be a minimum of three -inches wide and heat welded together. E. All wrinkles and or buckles shall be removed prior to installing mechanical fasteners. F. Seaming 1. All membrane surfaces to be welded shall be clean and free of moisture, adhesive and foreign objects. 2. Install BCRS mechanical fasteners and 2-inches-seam plates at spacing recommended by manufacturer, covering with membrane so that no fasteners are exposed. 3. Field seam laps to be continuously hot air welded with an approved hot air welder providing a minimum 1-inches seam weld with an automatic welder. 4. Field seams shall be welded after the sheet is mechanically attached. 5. Round all exposed corners of the roofing membrane at all junction laps, at all flashings, and at all end laps prior to hat air welding. G. Seam Inspection: Inspections by BCRS. and the Contractor shall be made on all welded seams to ensure the watertight integrity of the seams. 1. Seam inspections are to be made visually for obvious defects and physically with a dull pointed instrument. 2. All unwelded seams found during the inspection are to be repaired immediately as follows: a) Re -weld seams with hand welder to provide a minimum 1-inches continuous uniform weld with no wrinkles, or b) Weld new membrane strips over problem areas. Strips shall be minimum 2-inches width to ensure a minimum 1-inches continuous uniform weld on both sides of defect. PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 8 of 10 • 0 H. Flashings 1. Install flashings as recommended by membrane manufacturer utilizing BCRS standard details and standard accessories. 2. All flashings are to be heat welded to the field membrane. 3. All vertical flashings rising less than 8-inches shall have prior written approval from BCRS. 3.5 WALKWAY INSTALLATION REQUIREMENTS: A. Install walkway system to specific access hatches as required for general maintenance of the reservoir up to 900 lineal feet in locations as approved by the OWNER in accordance with the manufacturer's written recommendations. 3.6 SPECIAL INSTALLATION REQUIREMENTS: A. The membrane shall be mechanically fastened into the deck at the base of all curbs and other similar penetrations with appropriate BCRS fasteners and 2- inche membrane plates at a spacing not to exceed 12-inches. Fasteners and plates at the same spacing will also be required at the base of all tapered edge strips and at roof plane changes in accordance with the manafacturer's recommendations. 3.7 PROTECTING ROOFING A. Institute appropriate procedures for protection of the existing and new roofing system during construction period. At the end of the construction period, or at a time when remaining construction will in no way affect or endanger roofing, make a final inspection of roofing and prepare a written report to Owner, describing nature and extent of deterioration or damage found. B. Repair or replace (as required) deteriorated or defective work found at the time of final inspection to a condition free of damage and deterioration at the time of Substantial Completion and according to the requirements of the warranty. ZIND] PECK RESERVOIR RENOVATION NBR ROOFING SYSTEM PAGE 9 of 10 i Issue bats vfsnd Oetell Nvnbw BONIXXIl"I'J" 3-5.90 �t H,N A -A V4014 IN gTa1 .mow. .� -�.'• ra• - - ���� %tr eF -Z'*oTwm$ t; PECK RESERVOIR RENOVATION I BR ROOFING SYSTEM PAGE 10 of 10 0 MONTGOMERY WATSON March 25, 1998 City of Huntington Beach P.O. Box 190 2000 Main Street Huntington Beach, CA 92648 Attention: Mr. Les M. Jones II Director of Public Works Subject: Proposed Roofing Fix - Peck Reservoir Gentlemen: 0 Ashok K_ Dhingra Vice President As requested by the City, the following are Montgomery Watson's comments regarding the proposed fix. The proposed plywood layer over the existing aluminum roof panels is a different system than the built up roofing over the plywood proposed by the contractor in the RFI Nos. 1 and 3. Therefore, the comments in response to RFI Nos. 1 and 3 do not apply. The proposed plywood system on top of a visqueen layer over the metal deck along with BondCote on top of the plywood renders the plywood panel to be sandwiched between the plastic material on each side. In our opinion, this system offers a better alternative to the Isoboard and the Polystyrene Systems which were proposed earlier and is suitable for use in this application. The expected life of this plywood framing system is easily up to ten years with routine maintenance. A calculation sheet, showing that the existing system is capable of supporting the weight of the proposed plywood system, is attached. Very truly yours, Ashok K. Dhingra Vice President AKD/nh 301 North Lake Averse Tel: 626 796 9141 Serving the World's Environmental Needs site 600 Direct: 626 568 6150 Pasadena, California Fax: 626 56B 6101 91101 _�__ . • ASSOCIATED '■�__ GENERAL TRACTORS OF CALIFORNIA OF CALIFORNIA RELEASE OF STOP NOTICE (Public or Private Work) TO: City of Huntington Beach Construction Lender (or party with whom Stop Notice was filed) 2000 Main Street, Huntington Beach, CA (Address) You are hereby notified that the undersigned claimant releases that certain Stop Notice dated August 22, 1996 , in the amount of $ 61, 763.50 against City of Huntington Beach as owner or public body and (if applicable) Pro Contracting Corporation Peck Reservoir as prime contractor in connection with the work of improvement known as Roof Construction, 14561 Springdale Street in the City of — Huntin&ton Beach , County of Orange T - State of California. Date May 5, 1998 Name of Claimant © Associated General Contractors of California, Inc. 1990 .Anning-Johnson Company irm me) �6Djhc�%ature) ePresident (Official Capacity) Form AGCC-21 • STATE OF CALIFORNIA COUNTY OF Los Angeles }SS. On May 06 before me, the undersigned, a Notary Public in and for said State, personally appeared ram= Domino personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name 15 subscribed to the within instrument and acknowledged that he executed the same. WITNESS my hand and official seal. Sig Donna M. Dalthorp Q Comm #1029409 {{�� TARY PUBL4C CALIFORM LOS ANGELES COUNTY Co (((((( JJJJJJ mm Expires f i898 i (This area for official notarial seal) NOTE: This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This form is intended to meet the requirements of California law as of October 1, 1989. -2- CONDITIONAL ROOFING SYSTEM GUARANTY For valuable consideration, ANNING JOHNSON COMPANY, a corporation (ANNING JOHNSON"), hereby guarantees to THE CITY OF HUNTINGTON BEACH, a municipal corporation ("CITY"), and its successors and assigns, that the single -ply roofing system installed at the Peck Reservoir, Springdale Avenue, Huntington Beach, California ("Project") shall be free from defects in materials and workmanship and shall provide City with a water tight and leak free roofing system for a period of ten years following the manufacturer's issuance of the warranty on the Project. ANNING JOHNSON COMPANY, at its sole cost and expense, shall repair any leaks in the single -ply roofing system which appear in the foregoing ten year period and which leaks are the result of a defect in materials and/or workmanship, provided however, if the manufacturer of the single -ply roofing system installed at the Reservoir repairs said leaks in accordance with the terms of its warranty or City fails to maintain the roofing system in accordance with the manufacturer's instructions and - ANNING JOHNSON's written recommendations, this obligation shall be null and void. ANNING JOHNSON's maximum liability pursuant to this Guaranty shall not exceed the following amounts for the time periods set forth below: a. For the first two year period following the installation of the single -ply roofing system (such period shall commence upon the issuance of the manufacturer's warranty for such roofing system), not to exceed $240,000.00; b. For the third year following the installation of the single -ply roofing system, not to exceed $50,000.00; C. For the fourth through tenth years following the installation of the single - ply roofing system, not to exceed $25,000.00. It is specifically agreed that ANNING JOHNSON's liability pursuant to this Guaranty is conditioned upon the satisfaction of the conditions set forth in the Agreement for Settlement of Claims, etc. ("Agreement") executed concurrently herewith and CITY entering into and performing on a maintenance agreement with ANNING JOHNSON (as defined in the Agreement) for the term of this Guaranty. Further, ANNING JOHNSON's liability on this shall not be cumulative. ANNING JOHNSON has the option of paying the maximum liability set forth above to CITY in any claim year in full and complete satisfaction of any and all liability pursuant to this warranty. All repairs shall be completed expeditiously as possible upon receipt of written notice by CITY. Any suit pursuant to this Guaranty must be instituted before the expiration of one year from the date of any default. No right of action shall accrue on this Guaranty to or for the use of any person other than CITY. DATED: May 06, 1998 STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) ANNING JOHNSO COMPANY am Domino Title. Vice President May 06 Donna M. Dalthorp On Ate-____, 1998, before me, NDta-rY Pub-lic personally appeared IarrY DOmnin0 x personally known to me - or - proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies,) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. my hand Signature of Notary I:1%VL0C* ER1HUNfIN(MPP.CKkW IS0 ROOFING-OTY.398 Donna M. Dalthorpg tlR#1029409 (� CommOTARY PUBLIC CALIFORNIA�„ LOS ANGELES COUNTY [[ JJ Comm E.pres July 1 1998 "� PECK RESERVOIR CONCRETE LINER REPAIR WORK LETTER The following is a statement of Pro Contracting Corp.'s plan as of April 14, 1998, for the repair of the concrete liner at Peck Reservoir, Huntington Beach, California. Pro reserves the right to revise the following plan as it conducts further investigations and undertakes the liner repairs. 1. The City of Huntington Beach is required to completely drain the reservoir. 2. Pro will broom clean all joints. 3. Pro will conduct a visual inspection of all joints and repair any apparent defects in the existing caulking. 4. Pro will meet and confer with the manufacturer's representative for the CIM elastomeric coating and determine the specific product and method of surface preparation most suitable for the field conditions at Peck Reservoir, conducting pull tests if warranted. S. Pro will prepare the surface -and install the CIM elastomeric coating on all joints and column bases. (Pro estimates that approximately three weeks will be spent to reach this point in the planned repair procedure.) 6. The City fills the reservoir and the City and Pro conduct a leak test. 7. If the. reservoir passes the leak test, Pro's obligation to perform repairs under the Agreement for Settlement of Claims and Mutual General Releases is satisfied. 8. If the reservoir fails the leak test, Pro will make further investigations (including the possible use of a diver) to determine the source(s) of the continuing leaks and will prepare a plan for further repairs, as needed. (END) AGREEMENT FOR SETTLEMENT OF CLAIMS AND MUTUAL GENERAL RELEASES (City of Huntington Beach v. Montgomery Watson Americas, etc. et Al.) CONCRETE LINER GUARANTY For valuable consideration, PRO CONTRACTING CORP., a corporation ("PRO"), hereby guarantees to THE CITY OF HUNTINGTON BEACH, a municipal corporation ("CITY"), and is successors and assigns, that the cast -in -place concrete liner installed at the Peck Reservoir, Springdale Avenue, Huntington Beach, California ("Project") will meet or exceed the Original specifications for allowable leakage for a period of ten years following the date of this guaranty. This Guaranty is conditioned upon the closing of the settlement memorialized in that Agreement for Settlement of Claims and Mutual General Releases ("the Settlement") resolving City of Huntington Beach v. Montgomery Watson Americas etc. et al. (OCSC Case No. 765940) and is in made in furtherance of that Settlement. This Guaranty does not extend to leaks resulting from damage caused by third parties or the failure of the City to properly maintain the reservoir. If the liner leaks at a rate exceeding that allowed in the original specifications, Pro, at it sole cost and expense, shall expeditiously repair the liner upon written notice from the City and as described in the Settlement. Provided, however, if the manufacturer of the a membrane installed by Pro on the joints in the concrete liner at the Reservoir repairs said leaks in accordance with the terms of its warranty, Pro's obligations under this Guaranty shall be null and void. DATED: _V _) J- -9 k PRO CONTRACTING CORP. )ame: — 1-Jall 8's Title: Reliance Surely Coff A jfl'Ji;LIJC�- ]I tk,4I5ni, C-�'. . (itc!fd::1L . CA '120.1 .c I V 1-4': AU S(] BOND NO. B2721377 INITIAL PRENILM: $432.00 Reliance PREMIUM RENEWABLE ANNUPLLY GUARANTEE BOND !KNOW AU MEN BY THESE PRESENTS: That PRO CONTItAC MG, INC., as Principal, hereinafter called Contractor, and RELIANCE INSRIWCE COMPANY as Surety, hereinafter called Surety, arc held and firstly bound unto the CITY OF HLiNMGTON BEACH as Obligee, hereinafter called Owner, in the following amounts for the fallowing time periods: For the period IMY 10 1998 to MAY 9, 1999 trot xo exceed $200,00o.0o For the period -MY 10, 1999 _ , to MAY , nor to exceed S 100,000.00 For the period 0 to _ MAY 9 2001 notto exceed $50,000.00 For the period , M IQ, 200E to MAY 9 ,_ 2008 not to exceed $2s,000.00 For the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns. jointly and separately, firmly by these presents. Such ammunts are not cumulative but each amount applies only for The period referenced. W1E;lERFAS, Contractor has entered iaw ea ageetaent for settlement of claims and mutual general releases with Owner resolving Orange Counry Superior Court Cane No. 765940 entitled Cisv_of_Htmtirtgn Blach v. MgaggMM Watson. ern]., which obligates Contractor to make repairs to the Peck Reservoir concrete liner as more particularly described in the Agreement and hereinafter referred to as •the work". WHEREAS, Contractor has by written agreement in the fora attached as Exhibit 6 to the Agreement entered into a guarantee with Owner for a concrete liner which meets original contract specifications for leakage at the Peck Reservoir for a period of ten years from the date hereof which gnarantes is by reference made a part hereof and is hereinafter referred to as the Guarantee. NOW, THEREFORE, the condition of this obligation is such that, if Contractor shall promptly and faithfully perform the work and said Guarantee, then this Obligation shall be null and void; otherwise, it shall retrain in full force and effect. Whenever Contractor shall be, and be declared by Owner to be in defauit under the Gnararuee or the agreement for performing `the work", the Owner having performed Owner's obligations thereunder, the Surety may promptly remedy the default; or shall promptly (1) complete the Guarantee in accordance with its terms or conditions, or (2) obtaip a bid or bids for completing the Guarantee in accordance with its tartar and conditions mud upon determination by Surety of lowest responsible bidder, or if Owner elects, upott detertninaation by Owner and the Surety jointly of the lowest responsible bidder, arrange for a contrast between such bidder and Page I of 2 Owner, atxi mAe available as work progresses sufficient funds to pay the cost of performance of the Guuaatea up to the amount set, forth in the fast paragraph hereof; o: (3) at Su W's aprion make payment to the Obligre in an arnounr nor to exceed dw penal limit for the time period in which tic default occurred. Any suit under this Band, must be instituted before the expiration of one (1) year from the date of any default. No right of action shall accrue an this Bond to or for du use of any person osier flow flu Owner named herein. SIGNED mtd SEALED this IITH day of MAY . 199 8 Witness Witness RELIANCE INSURANCE COMPANY By. AVin Fact . FREOMN Page 2 of2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT r� u No. 5907 State of CALIFORNIA County of RIVERSIDE On MAY 111 1998 before me, DATE personally appeared ANMN ANSTETT CINDY BANTA — NOTARY PUBTTC NAME, TITLE OF OFFICER - E.G., -JANE DOE, NOTARY PUBLIC- NAME(S) OF SIGNER(S) ® personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he(she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), CINM BANTA or the entity upon behalf of which the Comm, # 1078763 r� person(s) acted, executed the instrument. VI NOTARY PUbIIC•CALIFORNIA W Rlversrda County My Camm. Ex Tres Nov. 29,1999 WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSONS) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184 CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF San Bernardino On May 11, 1998 before me, Kelly A. Saitman, Notary Public personally appeared .lay P. Freeman X personally known to me; or proved to me on the basis of satisfactory evidence to be the persons) whose name.(.s-) is/are subscribed to the within instrument and acknowledged to me that (he/ebe4-tey) executed the same in his/her -/-their authorized capacity(ie-s-), and that the entity upon behalf of which the person+s)- acted, executed the instrument. WITNESS my hand and official seal . ....... (SEAL) Z -1. • KELLY A. SAITMAN Z S _W.� `�'s COMM. #1022648 S h NOTARY PUBLIC • CALIFORNIA p SAN BERNARDINO COUNTY r My Comm. En*As Juno 27. ISBB •rrosorerrrss+rrcNsisssrsrrossssosorres Signatu of Notary Public CAPACITY CLAIMED BY SIGNER: Though statute does not require the notary to fill in the data below, doing so may prove invaluable to persons relying on the document. Individual(s) Corporate Officer(s) Titles Partner(s) X Attorney -in -Fact Trustee(s) Guardian/Conservator Other: and Limited General Signer is representing: Reliance Insurance Co an ATTENTION NOTARY: Although the information requested below is optional, it could prevent fraudulent attachment of this certificate to unauthorized document. Title of type of document: Guarantee Bond Number of pages: two Date of document: 5/11/98 Signer(s) other than named above: principal THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED ABOVE. KASM B9B37 `'REL•1A?4t SURETY COMPANY. N LIANCE INSURANCE;COMPANY,;::- "UNITED PACIFIC :INSURANCE COMPANY = RELIANCE NATIONAUNDEMIVITY- COMPANY ADMINISTRATIVE OFFICE'PHILADELPHIA, PENNSYLVANIA - = s• _ - POWER'OFATTORNEY n g KNOWALL MEN -BY THESE -PRESENTS; that RELIANCE SURETY COMPANY is a corporatiti - my organized -under thwiews of the State of Dei- aware, and that RELIANCE INSURANCE- COMPANY and,iUNITED PACIFIC INSURANCE COMPANY, are- corporatio ns?duly�orgariized.under the laws-, of the Comrnonwaalth of. Pennsylvania and that RELIANCE NATIONAL INDEMNITY COMPANY -is a"corporation:duly`o`rganized:under the laws of , :f the State of Wisconsin-{herein*collectively called "the.Comparties"Yand that,the Companies_'by•virtue:of signature and saals;do hereby make, constitute and appoint Jay P. Freemen, of Ontario. California their true;and lawful Attorneyjal-in=Fact, to make,^ execute,-seal`and deliver.for and -on their behalf, and as their -_act and dead any and all bonds and undertakings 6f suietysltlp and to hindalie Companies thereby: a`s fuIlya nd to the ,:_same extent -as if- such -bonds and undertakings- and other,_writings, obligatory in the nature thereof were signed -by an El ecutive Officer. -of the w Companies and sealed'a_nd attested by ono other of such officers, -and hereby ratifies and -confirms all that their said Attorneyfsl-in-Fact may do in^': pursuance hereof .t ' This Power- of Is,<granted- under -and by the authority of ArticleWil of the By -Laws ot-RELIANCE SURETY COMPANY RELIANCE INSURANCE -COMPANY; YN ED--PACIFIC:. INSURANCE COMPANY, and RELIANCE -NATIONAL INDEMNITY- comPANY-=which ,`a''provisions-are now'in full force and effect; eaading'as follows:; - - - -ARTICLE VII • EXECUTION OF BONDS AND UNDERTAKINGS ", I. The Beard ar Directors, the President . -the Chalrlrian of Board, any Senior Victi President, any Vice President ar Asslstent Vlce President or other officer desi8natatl by the Board of _ >-7. Directors shall have power and authority tole] appoint Attorneytal-In•Factand to authorize them to execute on behall of the Company,`bonde grid undertakings,-iecapnrr'ancas, contra_cts of indemnify M end other writings obllgarory in the nature thereof, end fbl to remove any such Atlorneyfsi-In-_Fact at any time and revoke the powerr ind authority given to them. 2. 'Aliorneylal•in-Face shall have power and authority, eublect to the terms and limitations of the Power of Attorney issued to them, to execute deGver�on behall;of the Company, bonds's and undertakings,: racognizancee contracts of indamrdty and other wdttngs obligatory In the nature thereof. The corporate Stalls not necessary- for the validity of any bonds a"ntl underlakinp�, ` "racognizances, contracts of Indamnity and other wrhings obligatory in the nature thereof. : 3. Attorneytsl-in-Fact shall have power and authority to execute' affidavits required to -be attached to bonds, racognlzoncas,_contracis of indemnity or other_ conditional of obligatory_` ` -,undertakings and they ahatf also have power and authority to ccrtily the Ifnanelaf statement of the Company and to copies of the 9yLaws of the Company ioany article or section thereof, - YThis Power of Attorney is signed and sealed by facsimile under and by authority of thi following resolution adopted by the Executive and Finance Commptesi of the Bosrcis of Directori of Rohanca- Insurance Company. United Pacific tnsuranca Company. and: Reliance National indemnity Company by Unanimous Consent dated as of Febru_ary-28, 1894•end by the.Executiva.and FiniriciaF on �Cmlttea of the Board or Directors of Reliance Surety Company by Unanimous Consent dated as of March 31, 1994. _ "Resolved that the signatures of. such dlrectora and officers and the seal -of -the Company may -be _affixed to any such,Power.of Attarney•or any certificates reiaiing-Iheretn by '- - facsimile and any such Power of Attornay,or certificate bearing such locslmlla signatures or facsimile'sael shall bi valid and binding upon-tha Company'sna any sucn Power so - . exscutad'snd certified by fac_simila'algnatures and facsimile seat shall be valid and binding upoo.tha Company, in the future with respect to any -bond or undertaking,to which it is attached.`_. - _ 1,• _ IN; WITNESS WHEREOF, the Companies hlivf3 caused these.presents-to-be signed and their corporate seals to be hereto affixed, this July`19, RELIANCE SURETY COMPANY't li Y J,`S�tEA4. RELIANCE INSURANCE COMPANY, Af�l ) _ fin UNITED PACIFIC INSURANCE COMPANY-- a RELIANCE NATIONAL INDEMNITY COMPANY ,• `_STATE.OF Washington' ;} =UNT,Y OF King } ss� :. On:this, July-;19,-1996, before ma; Janet Blank ley,.personally, appeareii-Mark -W. Alsup,4who acknowledged himself to -bathe Vice President: the:Reliance Surety Company; and,_the Vice Presidentof.Reliance insurance Coiripany,:United Pacific'Inaurance Company, and'Reliance Nations! ;Indemnity Coffioanyand that -as such, being authorized to do•&o;'executed tha foregoing -instrument for.tha purpose thereintcontained_-by signing the name of the corporation. by-himself -Baits duly authorized officer. r In witness whereof,"I hereunto'set my hand 'and official seal. SLIC Ik `' o- ' 'rt� 't2•:4Y7 r,v. Notar Publican'and for.tha=Stata'of Waahin ton 4Dfiq[<*rd� c. Resid g-at Puyallup' _ < 1,-Robyn Liyng, Assistant:Secretary of RELIANCE SURETY COMPANY,. RELIANCE.INSURANCE COMPANY,,UNITED'PACIFIC INSURAN E.COMP- ANY; and.RELIANCE- NATIONAL` INDEMNITY COMPANY do hereby certify that the above`end-.foregoing.is a=true and 'corract'copy of -the Power Y of Attorney executedity said Companies; which is still in full force and effect -`• 'A- d-:'_ 'a - - - '«-;.- .'.,. +";r,-,� y' � '•i -. t,;,'' it ' _ Yz-- IN.WITNESS WHEflEOF, I have'hareunto setimy hand and:efflxed the seals of said Companies this il�}i ay. -of Y _i9:=� SUL' ` E £ ' As"sistant Secretary tea "�;� 7 = . 0 0 Council/Agency Meeting Held: Deferred/Continued to: Approved ❑ Conditionally Approved 0 Denied 4Ee f ity Clerk's Signature Co ncil Meetiin Date: 4/20/98 w/ Department ID Number: CA 98-10 aht (YeeN: ) al?40 A6,5Ui ARDM kOOM Rpp�arRQ�o(CITY OF HUNTINGTON BEACH CH�.NC��A6aREQUEST FOR COUNCIL ACTION i4 p3 E,�?T GiQ o m �.Oa»'1 SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEM ERS SUBMITTED BY: RAY SILVER, City Administrator V4, PREPARED BY: DARYL SMITH, Acting Director of Public 14 AIL HUTTON, City Attorney SUBJECT: Approve Settlement Agreement regarding Peck Reservoir litigation (City of Huntington Beach v. Montgomery Watson, et a!) Estatement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachments) Statement of Issue: Should the City approve the settlement agreement of the pending Peck Reservoir litigation (City of Huntington Beach v. Montgomery Watson, et. aL)? Should the City transfer funds and appropriate additional funds to fund the settlement and complete work on Peck Reservoir? Funding Source: Unappropriated Water Fund Projects (Account No. G-EW-301-01) (Fiscal Impact Statement, Attachment 1). Recommended Action: Motion to: 1. Authorize the Mayor and City Clerk to approve the Agreement for Settlement of Claims and Mutual General Releases with respect to the design and construction of certain improvements at Peck Reservoir with Montgomery Watson, Pro -Contracting, and others involved in the design and construction of Peck Reservoir. 2. Authorize the transfer of $66,014 from Purchase Order No. 218877 (between the City and Montgomery Watson Americas, Inc.) to Purchase Order No. 214554 (between the City and Pro Contracting) for funding of settlement agreement. 3. Appropriate the following additional funds from the Unappropriated Water Fund (Account No. G-EW-301-01-00): 0 REQUEST FOR COUNCIL ACTION MEETING DATE: 4/20198 DEPARTMENT ID NUMBER: CA 98-10 (a) $25,072 to Purchase Order No. 214554 (between the City and Pro Contracting) for funding of settlement agreement. (b) $195,000 to project Account No. E-EW-PW-849-6-39-00 for the construction of miscellaneous improvements necessary to bring the reservoir back into service. 4. Authorize payment to Pro Contracting Corporation in the amount of $91,086 for funding of settlement agreement. Alternative Actions : 1) Do not approve the Settlement Agreement. The consequences of this action were discussed with the City Council in Closed Session on April 6, 1998. 2) Do not appropriate the necessary funds. Without funding, the City will not be able to complete the outstanding items and begin operating the reservoir. Analysis: The litigation for the Peck Reservoir Project (CC-696) has come to a mutually agreed upon settlement, the specific details of which were discussed at the City Council Closed Session Meeting on April 6, 1998. At this time, Council is being asked to authorize the Mayor and City Clerk to approve this settlement agreement attached hereto as Attachment 2. A list of exhibits to the agreement is attached for reference, as the specific items will remain confidential pending Council approval. Additionally, although the contractor, subcontractors and the design engineer are funding the majority of the cost of repairs, it is necessary for Council to take the following action so that the City can complete certain tasks before the reservoir can be put back into operation. • Transfer the sum of $66,014 from Purchase Order No. 218877 (between the City and Montgomery Watson Americas, Inc.) to Purchase Order No. 214554 (between the City and Pro Contracting.) Please note: Both of these purchase orders are from the same project account; Account No. E-EW-PW-849-6-39-00. • Appropriate an additional $25,072 from the Unappropriated Water Fund and transfer to Purchase Order No. 214554 (between the City and Pro Contracting). • Authorize payment to Pro Contracting Corporation in the amount of $91,086 (the sum of items No. 1 and 2 above) as final payment for their services. PECKSETT.DOC -2- 04/13/98 11:05 AM 0 REQUEST FOR COUNCIL ACTION MEETING DATE: 4/20/98 DEPARTMENT ID NUMBER: CA 98-10 e Appropriate an additional $195,000 from the Unappropriated Water Fund (Account No. G-EW-301-01) to project account No. E-EW-PW-849-6-39-00 for the construction of miscellaneous improvements necessary to bring the reservoir back into service. Additionally, the final amendment and appropriation of an additional $10,000 for payment to the law firm of Gibbs, Giden, Locher & Turner is also on the agenda (separate request) for Council approval. The final contract amendment and appropriation of $3,133 for the expert witness engineering firm retained by City will be on the agenda for approval in May, 1998. Environmental Status: Not applicable. Attachment(s): 1 2 Fiscal Impact Statement Agreement for Settlement of Claims and Mutual General Releases RCA Author: Gail Hutton, ext. 5555 PECKSETT.DOC -3- 04/13/98 11:05 AM II C City Huntington ton Beach g INTER -DEPARTMENT COMMMUNICATION HUNTINGTQN BEACH TO: RAY SILVER, City Administrator FROM: WILLIAM OSNESS, Acting Deputy City Administrator SUBJECT: FIS 98-16 - Peck Reservoir Litigation Settlement Agreement DATE: April 15, 1998 As required by Resolution 4832, a Fiscal Impact Statement has been prepared for Peck Reservoir Litigation Settlement Agreement. If the City Council approves this request (total appropriation $220,072) the estimated working capital of the Water Fund at September 30, 1998 will be reduced to $2,943,928. WHO:WL:skd WILLIAM H. OSNESS Acting Deputy City Administrator 0031340.01 04/15/98 9:42 AM AGREEMENT FOR SETTLEMENT OF CLAIMS AND MUTUAL GENERAL RELEASES SEEK . 11 O This Agreement is by and between CITY OF HUNTINGTON BEACH, a municipal corporation ("CITY"), MONTGOMERY WATSON AMERICAS, INC., formerly known as JAMES M. MONTGOMERY CONSULTING ENGINEERS, a corporation ("MWA"), PRO CONTRACTING CORP., a corporation ("PRO"), ANNING .JOHNSON COMPANY, a corporation ("AJ"), JACK KETTERING, an individual dba JACK KETTERING COMPANY ("KETTERING"), REYNOLDS METALS COMPANY, a corporation ("REYNOLDS"), HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS ("CAI"), 11 and ACE RESTORATION & WATERPROOFING, INC., a corporation ("ACE") with respect to the design and construction of certain improvements at the Peck Reservoir in Huntington Beach, California (the "Project"). II. EAMAUETTINQ The CITY was and is the owner of the Project. On or about February 7, 1989, the CITY entered into an engineering contract with MWA for certain engineering and design services related to the Project (the "Engineering Contract"). On or about November 1, 1993, the CITY entered into a construction contract with PRO to perform certain construction work at the Project in accordance with the plans and specifications prepared by MWA (the "Construction Contract"). In a general sense, the scope of work mentioned in the Construction Contract included the removal and replacement of portions of the wood framing structure supporting the reservoir roof, the removal of the old metal roof, the installation of a new Vangard aluminum roof manufactured by REYNOLDS, the construction of a new concrete liner in the reservoir and the a construction of a new pumping station adjacent to the reservoir. RELIANCE INSURANCE COMPANY ("RELIANCE") was the surety on the public works payment and performance bonds provided by PRO. On or about November 1, 1993, the CITY also entered into a construction management agreement with CMI (the "Management Contract"). Subsequent to the execution of the Construction Contract, PRO entered into subcontract agreements with AJ and KETTERING and KETTERING stained the services of ACE. Pursuant to these subcontracts, Al was obligated to procure and install, among other things, the new aluminum roof and KETTERING was obligated to install the new concrete liner, caulking and sealants, as well as other work. ACE furnished and installed the caulking. AJ purchased the aluminum panels for the new roof from REYNOLDS. During the course of construction of the Project, certain disputes arose between CITY, MWA, PRO, AJ, KETTERING, CMI and ACE concerning, among other things, the design developed by MWA, the construction work performed by PRO and its subcontractors and CITY's administration of the Project. As a result of these disputes, CITY initiated an action in the Superior Court for the State of California to enforce its claims against MWA, PRO, RELIANCE and CMI. Thereafter, PRO filed a cross -complaint against CITY, MWA, AJ and KETTERING; MWA filed a cross - complaint against PRO, CITY, CMI, AJ and REYNOLDS; AJ filed a cross -complaint against l CITY, MWA, PRO and RELIANCE; KETTERING filed a cross -complaint against MWA, PRO, CMI, CITY, AJ and ACE; REYNOLDS filed a cross -complaint against CITY and CMI. CMI filed a cross -complaint against MWA, PRO, KETTERING, CITY, AJ and REYNOLDS. This action has been identified as Case No. 765940 (hereinafter the "Pending Action"). The parties have now agreed to resolve all disputes and claims described in the Pending Action, with the exception of the claims against CMI's insurance carrier. I 1111rSTOULM r AN HO)IN 1. By CITY: CITY shall pay PRO the sum of $275,000 in full and complete satisfaction of PRO's present claims on the Project. Said sum shall be paid as follows: a. at least the sum of $165,000.00 concurrently with the execution and exchange of this Agreement (the "Closing") ; and b. the balance of said sum on or before May 8, 1998. 2. By MWA: The monetary claims of MWA against CITY shall be waived in their entirety. Additionally, MWA.shall pay PRO the sum of $275,000.00, plus the monies received from REYNOLDS, at the Closing. z i 3. By PRO; PRO shall accept the monetary consideration mentioned in this Agreement in full and complete satisfaction of its monetary claims on the Project, including all contract/retention, extra work and delay claims. 4. By AJ: AJ shall waive and release its stop notice claim against CITY in its entirety and shall waive and release PRO and RELIANCE from any and all current monetary claims on the Project, including all contract/retention, extra work and delay claims. 5. By KETTERING: KETTERING shall pay PRO the sum of $42,500.00, plus the monies received from KETTERING, at the Closing and shall waive and release PRO and RELIANCE from any and all monetary claims on the Project, including all contract/retention, extra work and/or delay claims. 6. By —AC : ACE shall pay KETTERING, for remittance to PRO, the sum of $5,000 at the Closing and shall waive and release PRO, RELIANCE and KETTERING from any and all monetary claims on the Project, including all contract/retention, extra work and/or delay claims. 7. By REYNOLDS: REYNOLDS shall pay MWA, for remittance to PRO, the sum of $50,000.00 at the Closing. 4 f $. Additional Terms RegardinL7 (a) All payments pursuant to this Agreement shall be in the form of 3 a check or wire transfer payable to James P. Reid - Client Trust Account (Wells Fargo Bank Account No. 0660-027434). (h) The receipt of al', payments mentioned herein is a condition precedent to the Closing. All payments are to be received by James P. Reid Client Trust Account no later than 3:00 p.m. on the day preceding the Closing. (c) Within 5 business days following the Closing, James P. Reid shall transfer the sum of $175,000.00 of the monetary consideration in his Client Trust Account to QUADROS & JOHNSON Client Trust Account. Further, within 5 business days of his receipt of CITY's final payment pursuant to this Agreement, James P. Reid shall transfer the sum of $70,000.00 to QUADROS & JOHNSON Client Trust Account. QUADROS & JOHNSON shall retain said sum in its Client Trust Account to secure the performance of the work described in paragraph III.B-3. Said monies shall not be disbursed until Benjamin A. Johnson receives joint disbursement instructions from AJ and counsel for CITY. Said funds may be disbursed in the form of progress payments based upon the completion of the installation of the plywood and the single ply roofing system, provided however, Benjamin A. Johnson shall make certain that . BondCote Roofing Systems is paid for the materials furnished for the repair work and that at least 15 % of such funds are retained until CITY receives the Guarantees mentioned in this 5 i F Agreement. ANNJNG JOHNSON shall accept the payment of these funds in full and complete satisfaction of. all monies due for the installation of the Roofing System described in the Specification. Benjamin A. Johnson does not owe any duty to any party to investigate, inspect or inquire as to the quality or status of the repair work. Other than making arrangements to insure that BondCote Roofing Systems receives payment for the materials provided to the repair work, Benjamin A. Johnson's sole obligation prior to the release of funds is to secure the joint disbursement instructions and Guarantees mentioned above. 1. By CITY: CITY shall waive final inspection and approval of the original Project. Additionally, CITY shall deem July, 1996 as the start date for all warranties other than the warranties created by the this Agreement. Finally, CITY shall procure all permits for the work described in the following paragraphs at CITY's sole cost and expense. 2. By MWA: MWA shall prepare and seal a specification for installation of a single -ply roofing system on the reservoir roof ("the Sealed Specification") as well as the structural calculations for the new roofing system at no cost to CITY. The Sealed Specification shall be based on the specification which is attached hereto as Exhibit "1" and shall address the concerns regarding the: (i) collection of water between the Vangard roofing panels and the new single -ply roofing system and (ii) leaching of materials from the single -ply roofing system and insulation into the potable water. The structural calculation shall be sealed and shall address the 0 ability of the roof framing system, including foundations,. to adequately support the single ply roofing system: MWA shall provide CITY with a copy of its structural calculations prior to the Closing and the calculations shall be attached to this Agreement as Exhibit "2" . MWA's Preparation and submission of the Sealed Specification and the structural calculations shall be a condition precedent to AJ's obligation to commence work on the roofing system at the Reservoir. 3. By Al (Roofing System); AJ shall install the single -ply roofing system described in the Sealed Specification (Exhibit " 1 ") at no cost to CITY, provided however, the Parties acknowledge that Al will receive the sum of $245,000.00 pursuant to the terms of this Agreement. The single ply roofing system shall provide the CITY with a watertight and leak - free roofing system for a period of ten years. The work shall" include the repair of any unsupported roofing panels, all necessary fasteners, insulation and walk pads, as well as the removal and re -installation of the ridge ventilator. All labor, installation and materials shall be warranted by the manufacturer of the single -ply roofing system for a period of ten years in accordance with the guarantees which are attached hereto as Exhibit "3" . Furthermore, AJ agrees to provide CITY with an conditional guaranty in the form of Exhibit "4" at CITY's option (the "Conditional Guaranty"). If CITY elects to purchase the Conditional Guaranty, CITY agrees to remit an additional $10,000.00 to AJ. CITY shall provide AJ with notice of its election to purchase said Conditional Guaranty within 10 months following the issuance of the . Bondcote Guaranty (Exhibit "3") and shall make full payment to AJ prior to the expiration of one year from the issuance of this Bondcote Guaranty. CITY shall also enter into the 7 Maintenance Contract mentioned in paragraph III-B.5(e) concurrently with the issuance of the Conditional Guaranty. The written notification, the additional $10,000.00 payment and the execution of the Maintenance Contract are express conditions precedent to AJ's obligations under the Conditional Guaranty. The work on the roofing system shalt commence within twenty (20) days following the Closing and shall be completed within one hundred five (105) calendar days from the commencement of the work, weather permitting. PRO and AJ will not be required to perform any work on the framing system, other than installation of the framing materials required to support any unsupported panels, as part of this agreement. It is understood and agreed that the Guarantees do not include the roof framing system. 4. By PRO (Concrete Liner): At no cost to CITY, PRO shall repair and/or modify the cast -in -place concrete liner in order that the liner meets the original specifications for allowable leakage. In addition, PRO shall guaranty the performance of the concrete liner (full labor and materials) in accordance with the original specifications for a period of ten (10) years following the completion of the repairs. The repairs and/or modification to the cast -in - place concrete liner which are currently contemplated by PRO are described on the work letter which is attached hereto as Exhibit "5". PRO's guaranty shall be in the form which is attached hereto as Exhibit "6" . Said guaranty and warranty shall not include the three areas which were cored and repaired by WJE and its subcontractors. PRO shall secure its obligations to complete the repairs to the concrete liner, as well as its obligations pursuant to the above mentioned guaranty (Exhibit "6"), with a surety, bond in the form of Exhibit "7". -The bond shall be executed by RELIANCE or a California admitted surety rated A-VII or better in Best's 9 Insurance Guide. The bond shall be executed concurrently with the Closing. The penal sum of the bond shall be as follows: (1) for the first year: (2) for the second year: (3) for the third year: (4) for the fourth through tenth years: ', 41 114 11, ', 41 441 li $ 50,000.00; and The initial repair work on the concrete liner shall be completed within the time set forth for completion of the installation of the single ply roofing system. With respect to subsequent repair work, CITY shall provide PRO with written notice of a potential leak in the liner. Immediately thereafter, CITY and PRO shall conduct a leak test in accordance with the specifications in order to verify leakage in excess of the allowed amount. If the amount of leakage exceeds the amount allowed under the original specifications, then PRO shall commence further repairs of the liner within fifteen working days and shall complete such repairs as expeditiously as possible thereafter. If PRO determines that the Reservoir needs to be drained to effectuate repairs, CITY shall have the exclusive right to determine when the reservoir shall be drained and PRO shall commence the subject repairs within fifteen working days after CITY drains the Reservoir and shall' complete such repairs as expeditiously as possible thereafter. CITY shall provide PRO with at least 7 days written notice of CITY's intention to completely drain the reservoir for any reason. CITY shall not leave the Reservoir completely empty for a period exceeding sixty consecutive days during the warranty period. 9 PRO shall be responsible for all costs associated with disinfecting the reservoir after any repair work, if disinfecting the reservoir is required. In the event CITY is required to drain the reservoir more than five (5) times during the warranty period on account of leaks in the reservoir, PRO shall reimburse CITY the sum of $3,000.00 each time the reservoir is drained thereafter (as a result of leaks) until the end of the warranty period. Once PRO completes the initial repair on the liner and CITY fills the reservoir, PRO shall not be responsible for the - removal of any sand in the reservoir as the result of CITY's operations. 5. Other: (a) Consent f R li By letter dated immediately prior to the Closing, Reliance shall consent to CITY's payment of the amounts mentioned in Section III to PRO. A copy of said letter shall be attached to this Agreement as Exhibit "8". (b) Performance S ifi i n• The specification for the single ply roofing system and the repair of the concrete liner are intended to be performance specifications, to wit, a leak free and watertight roofing system and a concrete liner which satisfies the original specification for allowable water loss. (c) Means. Methods and Techniques fq1_R,gpairs� PRO and AJ shall have exclusive control over the means, methods and techniques utilized to implement the repair work at the Project. CITY may have a representative present at the Project during the repairs 10 0 0 to observe the repair work. CITY's review and approval of the specification for the single ply roofing system, the structural calculations for the roof, the product data sheets for the single -ply roofing material, the work letter for the repair of the cast -in -place concrete liner and/or CIM 1061 commercial industrial membrane shall not be construed as an acceptance of any responsibility for the specification, calculations, data or proposed repairs. (d) Q Up: PRO and Al shall be responsible for the clean up and proper disposal of all debris generated as a result of the repair work at no cost to CITY. (e) Future Maintenance Work: CITY and AJ, at CITY's option, shall execute a maintenance agreement for the maintenance of the roofing system. Said maintenance agreement shall be in the form of Exhibit "9" and shall provide for an annual fee of $4,000.00, payable in advance, and which shall be increased by the sum of six percent (6%) per annum, compounded annually. The execution, continuation and prompt payment of all amounts due pursuant to this maintenance agreement shall be an express condition precedent to AN S obligations pursuant to the additional warranty which is attached hereto as Exhibit "4". if CITY does not enter into the Maintenance Agreement at the Closing, CITY must elect to enter into said Agreement, in writing, within 9 months of the issuance of the Bondcote Warranty (Exhibit "Y). Other than as set forth in the maintenance. agreement, CITY shall be responsible for maintaining the concrete liner and roofing system at the Project. CITY shall provide PRO with advance notice and an opportunity to observe any future maintenance work performed by CITY on the roofing system and/or concrete liner during the ten (10) year warranty period. Further, CITY shall provide AJ with advance written notice and an opportunity to observe any future maintenance work performed by CITY on the roofing system during the ten year warranty period. (f) Indemnification: PRO and AJ and their subcontractors, if any, shall hold harmless, defend and indemnify CITY from any claims and/or liability, for injuries or death to persons or damage or destruction to property, arising directly or indirectly out of the obligations and/or operations undertaken by them in connection with the repair work. (g) LiQuidated Damages: PRO and AJ shall be liable to CITY for liquidated damages in the amount of Two Hundred Dollars ($200) per day for late completion of the repair work. (h) Insurance: Prior to commencement of the work, PRO and Al shall provide CITY with evidence of insurance in the type, form and amounts set forth in Article 5 - General Conditions of the specifications and as required by the Construction Contract, which insurance shall be maintained in full force and effect throughout performance of the repair work. CITY and MWA shall be named as additional insureds on such insurance policies. Further, PRO and AJ agree to provide CITY and MWA with Certificates of Insurance and Additional Insureds Endorsements. 12 • 0 (i) Terny Facile: PRO and/or Al shall not be required to maintain a job office or temporary sanitation facility at the project during the performance of the work mentioned in this Agreement. 0) P[Qject Management: Prior to the commencement of the repair work PRO and AJ shall designate in writing a technically qualified, English-speaking Project Manager and/or Superintendent who shall be responsible for supervising the repair work. PRO and ANNING-JOHNSON will also provide CITY with an office telephone number, portable telephone number, and a pager number for each such individual. The Project Manager and/or Superintendent shall be available by phone for emergencies 24 hours per day, 7 days per week. (k) Genera- Conditions: The following General Conditions, Supplementary General Conditions and Technical Specifications for the Project shall survive the execution of this Agreement and shall apply to the work mentioned in Section III: General Conditions: 2.1, 4.1, 4.4, 5.2, 6.la, 6.2, 6.5, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 7.1, 7.2, 11.2, 12.2, 13.3(A), 14.4, 14.6(A), 15.1, and 16.1; Supplementary General Conditions: SGC-1, SGC-5.2, and SGC-5.2(c); and Technical Specifications: 01520 (as related to the work being performed by PRO and A]), 01530, 01560, 02667. !z • 0 To the extent that other technical specifications may be applicable to the work mentioned in Section III, such technical specifications may be used as a guideline to assist the parties in the determination of suitable construction and/or repair methods, provided however, said technical specifications shall not be mandatory. Finally, in the event of a conflict between this Agreement and any provision in the Specifications, this Agreement shall control. IV. -GEMAL RELLASES Except as expressly provided herein, the parties intend to and do hereby finally compromise, settle and resolve any and all disputes and differences that exist or may exist between them on the Project, including all claims mentioned in the Pending Action. A. By CITY Except as expressly provided to the contrary in this Agreement, CITY does hereby release and absolutely forever discharge MWA, PRO, RELIANCE, AJ, KETTERING, REYNOLDS CMI and ACE, and their respective officers, directors, shareholders and agents and employees of and from any and all claims, demands, damages, debts, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, which CITY now has, owns, asserts or holds, or which CITY may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact, or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof. 14 t Except as expressly provided to the contrary in this Agreement, MWA for itself, its officers, directors and shareholders; does hereby release and absolutely and forever discharge CITY, PRO, RELIANCE, AJ, KETTERING, REYNOLDS, CMI, and ACE and their respective officers, directors, shareholders, agents and employees of and from any and all claims, demands, damages, debts, receivables, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, which MWA now has, owns, asserts or holds, or which MWA may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact, or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof. C. By PR Except as expressly provided to the contrary in this Agreement, PRO for itself, its officers, directors and shareholders, does hereby release and absolutely and forever discharge CITY, MWA RELIANCE, AJ, KETTERING, REYNOLDS, CMI, and ACE and their respective officers, directors, shareholders,. agents and employees of and from any and all claims, demands, damages, debts, receivables, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, which PRO now has, owns, asserts or holds, or which PRO may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact, )? s f or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or- omission occurring or existing between said parties at any time to and including the date hereof. Except as expressly provided to the contrary in this Agreement, AJ, KETI'ERING, REYNOLDS, CMI, and ACE for themselves, their officers, directors and shareholders, do hereby release and absolutely and forever discharge one another, and CITY, PRO, RELIANCE and MWA and their respective officers, directors, shareholders, agents and employees of and from any and all claims, demands, damages, debts, receivables, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether now known or unknown, suspected or unsuspected, which they now have, own, assert or hold, or which they may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any cgntract (express, implied in fact, or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof, V. WAIVER OF SECTION 1542 Each of the parties hereto acknowledge their awareness of Section 1542 of the 'Civil Code of the State of California, which provides as follows: IR "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." Subject to the limitations set forth in Section VI, each of the parties hereto waives and relinquishes any right or benefit which they have or which they may have under Section 1542 of the Civil Cod of the State of California with respect to the Project. VI. LIMiTATIDN ON THIS AQREEMENT, GENERAL RELEASES AND WAIVER OF SECTION 1542 The General Releases and Waiver of Section 1542 contained in this Agreement are expressly limited to the claims which arise from or relate to the Project and shall not affect or impair the rights, obligations, or claims of any party on other projects. Further, the General Releases and Waiver of Section 1542 contained in this Agreement shall not release, discharge or otherwise limit or diminish: (a) Any rights, obligations and/or duties created by this Agreement, including obligations created by the Exhibits which are attached hereto; 17 1 N The claims against CMI only to the extent of claims, rights and interests under applicable policies of insurance designating CITY as an additional insured or otherwise inuring to the benefit of CITY with regard to the Project, all of which claims, rights and interests against CMI and its insurers are expressly reserved; (c) Any claims which CITY might otherwise be entided to assert in the future against any party (or against any other person or entity) based upon any latent defects in the design or construction_ of the elect_-ical, plumbing, LPG, mechanical and/or control systems at the Project; (d) The right of any party to seek indemnification on future claims asserted by third parties, for death, personal injury or property damage, as the result of the design and/or construction of the Project; and (e) The validity and/or enforceability of any warranty provided to CITY in connection with the Project, provided however, this provision shall not be construed to create, expand, modify or extend any warranty or warranty exclusion provided with respect to the Project. VII. AD2MONAL DOCUMENTS The parties agree to execute each of the following documents concurrently with the Closing unless otherwise agreed in writing: (a) The parties agree to dismiss the pending action in its entirety, with prejudice, provided however, the parties expressly reserve the right to pursue its claims against CMI's insurance carrier (see Exhibit " 10"); (b) KETTERING shall execute an Unconditional Waiver and Release Upon Final Payment on the Project (see Exhibit " 11 ") ; (c) ACE shall execute an Unconditionai 'Waiver and Release Upon Final Payment on the Project (see Exhibit "12"); A Ai shall execute an Unconditional Waiver and Release Upon Final Payment on the Project in the form of Exhibit "13" ; (e) A7• shall execute a Release of Stop Notice in favor of CITY on the Project in the form of Exhibit "14"; (f) AJ shall provide CITY with a fully executed warranty for the single ply roofing system from Bondcote in the form of Exhibit "3"; (g) A7 shall provide CITY with a guaranty for the roofing system in the form of Exhibit "4" (said Guaranty shall not be effective unless CITY satisfies the conditions precedent in this Agreement); M • 0 (h) AJ shall provide CITY with a written representation from a duly authorized representative of Bondcote with respect to the suitability of the proposed roofing system in this application (see Exhibit "15"); (i) MWA shall provide CITY with a written representation with respect to the suitability of the proposed roofing system in this application (see Exhibit "16"); 0) AJ and CITY shall, at CITY's option; execute the maintenance agreement in the form of Exhibit "9" . (k) PRO shall provide CITY with a guaranty for the concrete liner in the form of Exhibit "6" (1) PRO shall provide CITY with a fully executed performance bond in the form of Exhibit "T' . Each party also agrees to execute such other documents and instruments as are reasonably required to complete the settlement provided for herein. 20 The Closing of the matters referred to in this Agreement shall take place on or before 2:00 p.m., Thursday, April 23, 1998 (the "Closing"). The Closing shall take place at the Law Office of James P. Reid, 2030 Main Street, Suite 1600, Irvine, California 92714 or at such other place as the parties may agree. At or prior to the Closing, each party shall deliver the documents specified in this Agreement. Each of the parties to this Agreement represents, warrants and agrees as follows: (a) Each party has received independent legal advice from its attorney. with respect to the advisability of making the settlement provided for herein, the advisability of executing this Agreement, and with respect to the meaning of the California Civil Code Section 1542. (b) No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and no party is relying upon any statement, representation or promise of any other party (or of any officer, agent, employee, representative, or attorney for the other party) in executing this Agreement or in making the settlement provided for herein, except as expressly stated in this Agreement. (c) Each party has entered into this Agreement freely and voluntarily and has made an investigation of the facts pertaining to this settlement, this Agreement and of all the matters relating hereto. (d) Each party or responsible officer or agent thereof has read this Agreement and understands the contents hereof. Each of the persons executing this Agreement on behalf of the respective parties is empowered to do so and thereby binds his respective party. Further, each party to this Agreement agrees to indemnify and hold -the others harmless from any liability, claim, demand, expense and attorneys' fees incurred by the others as a result of any person asserting that the person who executed this Agreement was not authorized to do so. a (e) In entering into this Agreement and the settlement provided for herein, each party assumes the risk of any misrepresentation, concealment or mistake with respect to this Agreement, the execution of this Agreement, or the settlement provided for herein. If any party should subsequently discover that any fact relied upon it by in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including, without limiting the generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement. Subject to the limitations contained herein, this Agreement is intended to be and is final, binding and conclusive between and among the parties hereto with respect to certain of the claims which have been asserted on the Project, regardless of - any claim of misrepresentation, promise made without the intention of performing, concealment of fact, mistake of fact or law, or of any other circumstance whatsoever. a (f) Each party hereto represents and warrants that there has been no assignment, sale or transfer, by operation of the law or otherwise, of any claim, right, cause of action, demand, obligation, liability or interest released by any of them as provided herein. X. MISCELLANEOUS (a) The warranties, guarantees, rights and obligations created by this Agreement shall survive the execution of this Agreement, unless modified, amended or released by a subsequent Agreement. (b) This Agreement and the releases, payments and other terms provided for herein are made, executed, given and accepted as part of a compromise and settlement of disputed claims. No provision(s) of this Agreement, nor any acceptance of the benefits thereof by or on behalf of any of the parties hereto shall be construed or deemed to be evidence of an admission of fact, matter,- thing or liability of any kind to any other party. Each of the parties hereto denies any liability of any kind to any other party for any purpose, and this settlement is made solely and entirely as a compromise and for the purpose of fully and finally resolving the disputed matters referred to herein. (c) Each party agrees to bear its own costs and attorneys' fees incurred to date with respect to the Project and in the Pending Action. Further, each party specifically waives any i and all cWm(s) against any other party hereto or their sureties for the recoveryof the attorney's fees and costs. In the event of any litigation arising under or concerning this Agreement, the prevailing party shall be entitled to recover attorneys' fees and costs from the non -prevailing party in such litigation. (d) This Agreement and the exhibits hereto are the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral and written agreements and discussions between or among any of them. The parties hereto acknowledge and agree that there are no conditions, covenants, agreements or understandings between or among any of them except as set forth in this Agreement and the exhibits hereto. This Agreement may be amended only by a further signed writing. (e) This Agreement is binding upon and shall inure to the benefit of each of the parties hereto and their respective parent companies, subsidiaries, affiliates, predecessors, successors, divisions, shareholders, directors, officers, employees, attorneys, agents, representatives, -heirs and assigns. (t) The validity, construction and performance of this Agreement, as well as the rights and obligations of the parties hereunder, shall be governed, construed and enforced in 24 accordance with the laws of the State of California, without regard to principles of choice of law. (g) Each of the parties hereto has cooperated and participated in the drafting and preparation of this Agreement. Accordingly, the parties hereby acknowledge and agree that this Agreement shall not be construed cr interpreted in favor of or against any party by virtue of the identity of its preparer. (h) Each term of this Agreement is contractual and not merely a recital. (i) With respect to the claims and matters which have been expressly released by this Agreement, each party is aware that it may hereafter discover claims or facts in addition to or different from those it now knows or believes to be true with respect to the matters referred to in this Agreement. Nevertheless, it is the intention of the parties to fully, finally and forever settle and release all matters and all claims which now exist, may exist, may hereafter exist, or heretofore have existed between them on the Project, subject to the limitations contained herein. As such, the releases given shall be and remain in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 1.5 • (j) This Agreement may be executed in counterparts and when signed by each of the parties hereto with signed copies delivered to the other party, or their attorney, st, all be deemed in full force and effect executed as set forth below. CITY OF HUNTINGTON BEACH, a municipal corporation of the State f California Mayor REVIEWED AND APPROVED: ATTEST: vi ttorneyulg� City Administrator DATED: DATED: City Clerk MONTGOMERY WATSON CAS, INC., a corporation By: Title: PRO CONTRACTING CORP., a corporation By: Title: 26 DATED: ANNING JOHNSON COMPANY, a corporation By: Title: DATED: JACK KETTERING, an individual dba JACK KETTERING COMPANY By: Title: DATED: REYNOLDS METALS COMPANY, a corporation By: Title: DATED: - HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS By: Hotch Bedrosian DATED: ACE RESTORATION & WATERPROOFING, INC. By: Scott Lansburg, President 27 • APPROVED AS TO FORM: DATED: DATED: DATED: DATED: • GIBBS, GIDEN, LOCHER & TURNER LLP By: William D. Locher Attorneys for CITY OF HUNTINGTON BEACH MANNING, MARDER & WOLFE By: Thomas R. Gill Attorneys for MONTGOMERY WATSON AMERICAS, INC. LAW OFFICES OF JAMES P. REID at Law By: James P. Reid Attorneys for PRO CONTRACTING CORP. QUADROS & JOHNSON By: Benjamin A. Johnson Attorneys for ANNING JOHNSON COMPANY DATED: MURTAUGH, MILLER, MEYER & NELSON, LLP By: Thomas J. Skane A tiorneys for JACK KETTERING, an individual dba JACK KETTERING COMPANY • DATED: WULFSBERG REESE, FERRIS & SYKES I: IWLOCHERIHUNTIN(MPECKSACrnSETCL398. RD2 (Rev'd April 3, 1998) By: Jeffrey A. Sykes Attorneys for REYNOLDS METALS COMPANY 29 CITY OF HUNTINGTON BEACH v. MONTGOMERY WATSON AMERICAS OCSC CASE NO. 765940 LIST OF EXHIBITS TO THE AGREEMENT FOR SE17LEMENT OF CLAIMS AND MUTUAL GENERAL RELEASES EXHIBIT NO. DESCRIPTION Exhibit I The Sealed Specification Exhibit 2 Structural calculations Exhibit 3 Single -ply Roofing System Guaranty from BondCote Exhibit 4 Conditional Single -ply Roofing .System Guaranty from ANNING JOHNSON Exhibit 5 Work Letter describing the repairs and/or modifications to the cast -in - place concrete liner Exhibit 6 PRO'S Guaranty for the liner Exhibit 7 PRO's Guaranty Performance Bond Exhibit 8 RELIANCE Consent Letter Exhibit 9 Maintenance Contract Exhibit 10 Request for Dismissal of the pending action in its entirety, with prejudice, provided however, the parties expressly reserve the right to pursue its.claims against CMI's insurance carrier Exhibit 11 KETTERING's Unconditional Waiver and Release Upon Final Payment on the Project Exhibit 12 ACE's Unconditional Waiver and Release Upon Final Payment on the Project Exhibit 13 AJ's Unconditional Waiver and Release Upon Final Payment on the Project Exhibit 14 AJ's Release of Stop Notice in favor of CITY on the Project Exhibit 15 BondCote letter re roofing system Exhibit 16 MWA letter re roofing system 1:tiV4AX MU1UN arc VPECMAon EQMrr.L W AGREEMENT FOR SETTLEMENT OF CLAIMS AND NRMAL GENERAL RELEASES 1. .r� .23 This Agreement is by and between CITY OF HUNTINGTON BEACH, a municipal corporation ("CITY"), MONTGONMY. WATSON AMERICAS, INC., formerly known as JAMES M. MONTGOMERY CONSULTING ENGINEERS, a corporation. ("MWA"), PRO. CONTRACTING CORP., a corporation ("PRO"), ANNING JOHNSON COMPANY, a corporation ("AP), JACK KETTERING, an individual dba JACK KETTERING COMPANY ("KETTERING"), REYNOLDS METALS COMPANY, a corporation ("REYNOLDS"), HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS ("CMI"), and ACE RESTORATION & WATERPROOFING, INC., a corporation ("ACE") with respect to the design and construction of certain improvements at the Peck Reservoir in Huntington Beach, California (the "Project"). The CITY was and is the owner of the Project. On or about February 7, 1989, the CITY entered into an engineering contract with MWA for certain engineering and design services related to the Project (the "Engineering Contract"). On or about November 1, 1993, the CITY entered into a construction contract with PRO to perform certain construction work at the Project in accordance with the plans and specifications prepared by MWA (the "Construction Contract"). In a general sense, the scope of work mentioned in the Construction Contract included the removal and replacement of portions of the wood framing structure supporting the reservoir roof, the removal of the old metal roof, the installation of a new Vangard aluminum roof manufactured by REYNOLDS, the construction of a new concrete liner in the reservoir and the 1 construction of a new pumping station adjacent to the reservoir. RELIANCE INSURANCE COMPANY ("RELIANCE") was the surety on the public works payment and performance bonds provided by PRO. On or about November 1, 1993, the CITY also entered into a construction management agreement with C1VII (the "Management Contract"). Subsequent to the execution of the Construction Contract, PRO entered into subcontract agreements with AJ and KETTERING and ICETTERING retained the services of ACE. Pursuant to these subcontracts, AJ was obligated to procure and install, among other things, the new aluminum roof and KETTERING was obligated to install the new concrete liner, caulking and sealants, as well as other work. ACE furnished and installed the caulking. AJ purchased the aluminum panels for the new roof from REYNOLDS. During the course of construction of the Project, certain disputes arose between CITY, MWA, PRO, AJ, KETTERING, CMI and ACE concerning, among other things, the design developed by MWA, the construction work performed by PRO and its subcontractors and. CITY's administration of the Project. As a result of these disputes, CITY initiated an action in the Superior Court for the State of California to enforce its claims against MWA, PRO, RELIANCE and CMI. Thereafter, PRO filed a cross -complaint against CITY, MWA, AJ and KETTERING; MWA filed a cross - complaint against PRO, CITY, CMI, AJ and REYNOLDS; AJ filed a cross -complaint against CITY, MWA, PRO and RELIANCE; KETTERING filed a cross -complaint against MWA, PRO, 2 ` i • CM, CITY, AJ and ACE; REYNOLDS =filed a cross -complaint against CITY and CAB. CMI filed a cross -complaint against MWA, PRO, KETTERING, CITY, AJ and REYNOLDS. This action has been identified as Case No. 765940 (hereinafter the "Pending Action"). The parties have now agreed to resolve all disputes and claims described in the Pending Action, with the exception of the claims against Chff's insurance carrier. KIINKUT . ! :_+! 1. By CITY: CITY shall pay PRO the sum of $275,000 in full and complete satisfaction of PRO's present claims on the Project. Said sum shall be paid as follows: a. at least the sum of $165,000.00 concurrently with the execution and exchange of this Agreement (the "Closing") ; and b. the balance of said sum on or before May 8, 1998. 2. By► Mom: The monetary claims of MWA against CITY shall be waived in their entirety. Additionally, MWA shall pay PRO the sum of $275,000.00, plus the monies received from REYNOLDS, at the Closing. 3 3. By PRO: PRO shall accept the monetary consideration mentioned in this Agreement in full and complete satisfaction of its monetary claims on the Project, including all contract/retention, extra work and delay claims. 4. j_y-AZ: AJ shall waive and release its stop notice claim against CITY in its entirety and shall waive and release PRO and RELIANCE from any and all current monetary claims on the Project, including all contract/retention, extra work and delay claims. 5. By KETTERING: KETTERING shall pay PRO the sum of $42,500.00, plus the monies received from KETTERING, at the Closing and shall waive and release PRO and RELIANCE from any and all monetary claims on the Project, including all contract/retention, extra work and/or delay claims. 6. $ C : ACE shall pay KETTERING, for remittance to PRO, the sum of $5,000 at the Closing and shall waive and release PRO, RELIANCE and KETTERING from any and all monetary claims on the Project, including all contract/retention, extra work and/or delay claims. 7. IBY RE,YNOLDS: REYNOLDS shall pay MWA, for remittance to PRO, the sum of $50,000.00 at the Closing. 4 (a) All payments pursuant to this Agreement shall be in the form of a check or wire transfer payable to James P. Reid - Client Trust Account (Wells Fargo Bank Account No. 0660-027434). (h) The receipt of all payments mentioned herein is a condition precedent to the Closing. All payments are to be received by James P. Reid Client Trust Account no later than 3:00 p.m. on the day preceding the Closing. (c) Within 5 business days following the Closing, James P. Reid shall transfer the sum of $175,000.00 of the monetary consideration in his Client Trust Account to QUADROS & JOHNSON Client Trust.Account. Further, within 5 business days of his receipt of CITY's final payment pursuant to this Agreement, James P. Reid shall transfer the sum of $70,000.00 to QUADROS & JOHNSON Client Trust Account. QUADROS & JOHNSON shall retain said sum in its Client Trust Account to secure the performance of the work described in paragraph HLB-3. Said monies shall not be disbursed until Benjamin A. Johnson receives joint disbursement instructions from AJ and counsel for CITY. Said funds may be disbursed in the form of progress payments based upon the completion of the installation of the plywood and the single ply roofing system, provided however, Benjamin A. Johnson shall make certain that BondCote Roofing Systems is paid for the materials furnished for the repair work and that at least 15 % of such funds are retained until CITY receives the Guarantees mentioned in this 5 Agreement. ANNING JOHNSON shall accept the payment of these funds in full and complete satisfaction of all monies due for the installation of the Roofing System described in the Specification. Benjamin A. Johnson does not owe any duty to any party to investigate, inspect or inquire as to the quality or status of the repair work. Other than making arrangements to insure that BondCote Roofing Systems receives payment for the materials provided to the repair work, Benjamin A. Johnson's sole obligation prior to the release of funds is to secure the joint disbursement instructions and Guarantees mentioned above. 1. By CITY: CITY shall waive final inspection and approval of the original Project. Additionally, CITY shall deem July, 1996 as the start date for all warranties other than the warranties created by the this Agreement.. Finally, CITY shall procure all permits for the work described in the following paragraphs at CITY's sole cost and expense. 2. By A: MWA shall prepare and seal a specification for installation of a single -ply roofing system on the reservoir roof ("the Sealed Specification") as well as the structural calculations for the new roofing system at no cost to CITY. The Sealed Specification shall be based on the specification which is attached hereto as Exhibit "1" and shall address the concerns regarding the: (i) collection of water between the Vangard roofing panels and the new single -ply roofing system and (ii) leaching of materials from the single -ply roofing system and insulation into the potable water. The structural calculation shall be sealed and shall address the 2 ability of the roof framing system, including foundations, to adequately support the single ply roofing system. MWA shall provide CITY with a copy of its structural calculations prior to the Closing and the calculations shall be attached to this Agreement as Exhibit "2". MWA's preparation and submission of the Sealed Specification and the structural calculations shall be a condition precedent to AFs obligation to commence work on the roofing system at the Reservoir. 3. By AJ (Roofing System): AJ shall install the single -ply roofing system described in the Sealed Specification (Exhibit "1") at no cost to CITY, provided however, the parties acknowledge that AJ will receive the sum of $245,000.00 pursuant to the terms of this Agreement. The single ply roofing system shall provide the CITY with a watertight and leak - free roofing system for a period of ten years. The work shall include the repair of any unsupported roofing panels all necessary fasteners, insulation and walk pads, as well as- the removal and re -installation of the ridge ventilator. All labor, installation and materials shall be warranted by the manufacturer of the single -ply roofing system for a period of ten years in accordance with the guarantees which are attached hereto as Exhibit "3". Furthermore, AJ agrees to provide CITY with an conditional guaranty in the form of Exhibit "4" at CITY's option (the "Conditional Guaranty"). If CITY elects to purchase the Conditional Guaranty, CITY agrees to remit an additional $10,000.00 to AJ. CITY shall provide AJ with notice of its election to purchase said Conditional Guaranty within 10 months following the issuance of the Bondcote Guaranty (Exhibit "3") and shall make full payment to AJ prior to the expiration of one year from the issuance of this Bondcote Guaranty. CITY shall also enter into the 7 Maintenance Contract mentioned in paragraph III-B.5(e) concurrently with the issuance of the Conditional Guaranty. The written notification, the additional $10,000.00 payment and the execution of the Maintenance Contract are express conditions precedent to AJ's obligations under the Conditional Guaranty. The work on the roofing system shall commence within twenty (20) days following the Closing and shall be completed within one hundred five (105) calendar days from the commencement of the work, weather permitting. PRO and AJ will not be required to perform any work _on the framing system, other than installation of the flaming materials required to support ant unsupported panels, as part of this agreement. It is understood and agreed that the Guarantees do not include the roof framing system. 4. By PA_ (Concrete Liner): At no cost to CITY, PRO shall repair and/or modify the cast -in -place concrete liner in order that the liner meets the original specifications for allowable leakage. In addition, PRO shall guaranty the performance of the concrete liner (full labor and materials) in accordance with the original specifications for a period of ten (10) years following the completion of the repairs. The repairs and/or modification to the cast -in - place concrete liner which are currently contemplated by PRO are described on the work letter which is attached hereto as Exhibit "5". PRO's guaranty shall be in the form which is attached hereto as Exhibit "6". Said guaranty and warranty shall not include the three areas which were cored and repaired by WIE and its subcontractors. PRO shall secure its obligations to complete the repairs to the concrete liner, as well as its. obligations pursuant to the above mentioned guaranty (Exhibit "6"), with a surety, bond in the form of Exhibit "T'. The bond shall be executed by RELIANCE or a California admitted surety rated A-VII or better in Best's 11 Insurance Guide. The bond shall be executed concurrently with the Closing. The penal sum of the bond shall be as follows: (1) for the first year: (2) for the second year: (3) for the third year: (4) for the fourth through tenth years: $200, 000.00; $100,000.00; $ 50,000.00; and $ 25,000.00 The initial repair work on the concrete liner shall be completed within the time set forth for completion of the installation of the single ply roofing system. 'With respect to subsequent repair work, CITY shall provide PRO with written notice of a potential leak in the liner. Immediately thereafter, CITY and PRO shall.conduct a leak test in accordance with the .. ........specifications in order to verify leakage in excess of the allowed amount. If the amount of leakage exceeds the amount allowed under the original specifications, then PRO shall commence further repairs of the liner within fifteen working days and shall complete such repairs as expeditiously as possible thereafter. If PRO determines that the Reservoir needs to be drained to effectuate repairs, CITY shall have the exclusive right to determine when the reservoir shall be drained and PRO shall commence the subject repairs within fifteen working days after CITY drains the Reservoir and shall complete such repairs as expeditiously as possible thereafter. CITY shall provide PRO with at least 7 days written notice of CITY's intention to completely drain the reservoir for any reason. CITY shall not leave the Reservoir completely empty for a period exceeding sixty consecutive days during the warranty period. 9 9 0 PRO shall be responsible for all costs associated with disinfecting the reservoir after any repair work, if disinfecting the reservoir is required. In the event CITY is required to drain the reservoir more than five (5) times during the warranty period on account of leaks in the reservoir, PRO shall reimburse CITY the sum of $3,000.00 each time the reservoir is drained thereafter (as a result of leaks) until the end of the warranty period. Once PRO completes the initial repair on the liner and CITY fills the reservoir, PRO shall not be responsible for the removal of any sand in the reservoir as the result of CITY's operations. 5. Other: (a) !Consent of Reliance: By letter dated immediately prior to the Closing, Reliance shall consent to CITY's payment of the amounts mentioned in Section III to PRO. A copy of said letter shall be attached to this Agreement as Exhibit "8". (b) Performance SMifigatiom The specification for the single ply roofing system and the repair of the concrete liner are intended to be performance specifications, to wit, a leak free and watertight roofing system and a concrete liner which satisfies the original specification for allowable water loss. (c) Means,Methods T • PRO and AJ shall have exclusive control over the means, methods and techniques utilized to implement the repair work at the Project. CITY may have a representative present at the Project during the repairs H to observe the repair work. CITY's review and approval of the specification for the single ply roofing -system, the structural calculations for the roof, the product data sheets for the single -ply roofing material, the work letter for the repair of the cast -in -place concrete liner and/or CIM 1061 commercial industrial membrane shall not be construed as an acceptance of -any responsibility for the specification, calculations, data or proposed repairs. (d) p: PRO and Al shall be responsible for the clean up and proper disposal of all debris generated as a result of the repair work at no cost to CITY. \ (e) Future Maintenance Work: CITY -and AJ, at CITY's option, shall execute a maintenance agreement for the maintenance of the roofing system. Said maintenance . agreement shall be in the form of Exhibit "9" and shall provide for an annual fee of_$4,000.00, payable in advance, and which shall be -increased by the sum of six percent (6%) per annum, compounded annually. The execution, continuation and prompt payment of all amounts due .pursuant to- this maintenance. agreement shall be an express condition precedent to AJ's obligations pursuant to the additional warranty which is attached hereto as Exhibit "4". If CITY does not enter into the Maintenance Agreement at the Closing,. CITY must elect to enter into said Agreement, in writing, within 9 months of the issuance of the Bondcote Warranty (Exhibit 1 "). Other than . as set forth in the maintenance agreement, CITY shall be responsible for maintaining the concrete liner and roofing system at the Project. CITY shall provide PRO with.. advance notice and an opportunity to observe any future maintenance work performed by CITY on the roofing system and/or concrete liner during the ten (10) year warranty period. Further, CITY shall provide A7 with advance written notice and an opportunity to observe any future maintenance work performed by CITY on the roofing system during the ten year warranty period. M Indemnification: PRO and AI and their subcontractors, if any, shall hold harmless, defend and indemnify CITY from any claims and/or liability, for injuries or death to persons or damage or destruction to property, arising directly or indirectly out of the Obligations and/or operations undertaken by them in connection with the repair work. (g) Liquidated Damages: PRO and A] shall be liable to CITY for liquidated damages in the amount of Two Hundred Dollars ($200) per day for late completion of the repair work. (h) Insuran : Prior to commencement of the work, PRO and A7 shall provide CITY with evidence of insurance in the type, form and amounts set forth in Article S - General Conditions of the specifications and as required by the Construction Contract, which insurance shall be maintained in full force'and effect throughout performance of the repair work. CITY and MWA shall be named as additional insureds on such insurance policies. Further, PRO and AI agree to provide CITY and MWA with Certificates of Insurance and Additional Insureds Endorsements. 12 n L -.A (i) Temnor= Facilities: PRO and/or AJ shall not be required to maintain a job office or temporary sanitation facility at the project during the performance of the work mentioned in this Agreement. 0) Project Management: Prior to the commencement of the repair work PRO and AJ shall designate in writing a technically qualified, English-speaking Project Manager and/or Superintendent who shall be responsible for supervising the repair work. PRO and ANNING-JOHNSON will also provide CITY with an office telephone number, portable telephone number, and a pager number for each such individual. The Project Manager and/or Superintendent shall be available by phone for emergencies 24 hours per day, 7 days per week. (k) General Conditions: The following General Conditions, Supplementary General Conditions and Technical Specifications for the Project shall survive the execution of this Agreement and shall apply to the work mentioned in Section III: General Conditions: 2.1, 4.1, 4.4, 5.2, 6.la, 6.2, 6.5, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12, 7.1, 7.2, 11.2; 12.2, 13.3(A), 14.4, 14.6(A), 15.1, and 16.1; Supplementary General Conditions: SGC-1, SGC-5.2, and SGC-5.2(c); and Technical Specifications: 01520 (as related to the work being performed by PRO and AJ), 01530, 01560, 02667. 1, 0 To the extent that other technical specifications may be applicable to the work mentioned in Section III, such technical specifications may be used as a guideline to assist the parties in the determination of suitable construction and/or repair methods, provided however, said technical specifications shall not be mandatory. Finally, in the event of a conflict between this Agreement and any provision in the Specifications, this Agreement shall control. Except as expressly provided herein, the parties intend to and do hereby finally compromise, settle and. resolve any and all disputes and differences that exist or may exist between them on the Project, including all claims mentioned in the Pending Action. A. By CIZY Except as expressly provided to the contrary in this Agreement, CITY does hereby release and absolutely forever discharge MINA, PRO, RELIANCE, AJ, KETTERING, REYNOLDS CNff and ACE, and their respective officers, directors, shareholders and agents and employees of and from any and all claims, demands, damages, debts, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, which CITY now has, owns, asserts or holds, or which CITY may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact, or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof. 14 Except as expressly provided to the contrary in this Agreement, MWA for itself, its officers, directors and shareholders, does hereby release and absolutely and forever discharge CITY, PRO, RELIANCE, AJ, KETTERING, REYNOLDS, CMI, and ACE and their respective officers, directors, shareholders, agents and employees of and from any and all claims, demands, damages, debts, receivables, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, which MWA now has, owns, asserts or holds, or which MWA may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact, or implied in 11 law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof. C. , By PRO Except as expressly provided to the contrary in this Agreement, PRO for itself, its officers, directors and shareholders, does hereby release and absolutely and forever discharge CITY, MWA RELIANCE, AJ, KETTERING, REYNOLDS, CMI, and ACE and their respective officers, directors, shareholders, agents and employees of and from any and all claims, demands, damages, debts, receivables, liabilities, costs, expenses, actions and causes of action of every kind and nature, whether known or unknown, suspected or unsuspected, which PRO now has, owns, asserts or holds, or which PRO may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact, 15 or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof. Except as expressly. -provided to the contrary in this Agreement, AI, KETTERING, REYNOLDS, CAE, and ACE for themselves, their officers, directors and shareholders, do hereby release and absolutely and forever discharge one another, and CITY, PRO, RELIANCE and MWA and their respective officers, directors, shareholders, agents and employees of and from any and all claims, demands, damages, debts, receivables, liabilities, costs, expenses, actions and causes of action of every land and nature, whether now known or unknown, suspected or unsuspected, which they now have, own, assert or hold, or which they may hereafter have, own, assert or hold, based upon the Project, whether related to or by reason of any contract (express, implied in fact, or implied in law), trust, liability, stop notice, bond, matter, cause, thing, act or omission occurring or existing between said parties at any time to and including the date hereof. V. WAIVER OF SECTIQN 1542 Each of the parties hereto acknowledge their awareness of Section 1542 of the Civil of the State of California, which provides as follows: 0 "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." Subject to the limitations set forth in Section VI, each of the parties hereto waives and relinquishes any right or benefit which they have or which they may have under Section 1542 of the Civil Code of the State of California with respect to the Project. The General Releases and Waiver of Section 1542 contained in this Agreement are expressly limited to the claims which arise from or relate to the Project and shall not affect or impair the rights, obligations, or claims of any party on other projects. Further, the General Releases and Waiver.of Section 1542 contained in this Agreement shall not release, discharge or otherwise limit or diminish: (a) Any rights, obligations andlor duties created by this Agreement, including obligations created by the Exhibits which are attached hereto; 17 (b) The claims against Chfl only to the extent of claims, rights and interests under applicable policies of insurance designating CITY as an additional insured or otherwise inuring to the benefit of CITY with regard to the Project, all of which claims, rights and interests against CMI and its insurers are expressly reserved; (c) Any claims which CITY might otherwise be entitled to assert in the future against any party (or against any other person or entity) based upon any latent defects in the design or constructior_ of the electical, plumbing, LPG, mechanical and/or control systems at the Project; (d) The right of any party to seek indemnification on future claims asserted by third parties, for death, personal injury or property damage, as the result of the design and/or construction of the Project; and (e) The validity and/or enforceability of any warranty provided to CITY in connection with the Project, provided however, this provision shall not be construed to create, expand, modify or extend any warranty or warranty exclusion provided with respect to the Project. ! ss ��.�• sa 1�� The parties agree to execute each of the following documents concurrently with the Closing unless otherwise agreed in writing: N 0 • 6, (a) The parties agree to dismiss the pending action in its entirety, with prejudice, provided however, the parties expressly reserve the right to pursue its claims against CW's insurance carrier (see Exhibit "10"); (b) KETIEERING shall execute an Unconditional Waiver and Release Upon Final Payment on the Project (sce Exhibit "ll") ; (c) ACE shall execute an Unconditionai 'Waiver and Release Upon Final Payment on the Project (see Exhibit "12"); (d) AJ shall execute an Unconditional Waiver and Release Upon Final Payment on the Project in the form of Exhibit "13" ; (e) AJ shall execute a Release of Stop Notice in favor of CITY on the Project in the form of Exhibit "14"; (f) AJ shall provide CITY with a fully executed warranty for the single ply roofing system from Bondcote in the form of Exhibit I % (g) AJ shall provide CITY with a guaranty for the roofing system in the form of Exhibit "4" (said Guaranty shall not be effective unless CITY satisfies the conditions precedent in this Agreement); [Vol W Ay shall provide CTTY with a written representation from a duly authorized representative of Bondcote with respect to the suitability of the proposed roofing system in this application (see Exhibit "15"); (i) MWA shall provide CITY with a written representation with respect to the suitability of the proposed roofing system in this application (see Exhibit "lb"); {j) AJ and CITY shall, at CPTY's option; execute the maintenance agreement in the form of Exhibit "9" . (k) PRO shall provide CITY with a guaranty for the concrete liner in the form of Exhibit "b"; (1) PRO shall provide CITY with a fully executed performance bond in the form of Exhibit " T . Each party also agrees to execute such other documents and instruments as are reasonably required to complete the settlement provided for herein. 20 F VIII. CLOSRZ The Closing of the matters referred to in this Agreement shall take place on or before i 2:00 p.m., Thursday, April 23, 1999 (the "Closing"). The Closing shall take place at the Law Office of James P. Reid, 2030 Main Street, Suite 1600, Irvine, California 92714 or at such other place as the parties may - agree. At or prior to the Closing, each party shall deliver the documents specified in this Agreement: IX. MITTirAL REP t�F., BNTAT QM. CQYEMNTS ,AND WARRANM Each of the parties to this Agreement represents, warrants and agrees as follows: e (a) Each party has received independent legal advice from its attorney with respect to the advisability of making the settlement provided for herein, the advisability of executing this Agreement, and, with respect to the meaning of the California Cj3dl QQde Section 1542. (b) No party (nor any officer, agent, employee, representative, or attorney of or for any party) has made any statement or representation to any other party regarding any fact relied upon in entering into this Agreement, and no party is relying upon any statement; representation or promise of any other party (or of any officer, agent, employee, representative, or attorney for the other party) in executing this Agreement or in making the settlement provided for herein, except as expressly stated in this Agreement. I (c) Each party has entered into this Agreement freely and voluntarily and has made an investigation of the facts pertaining to this settlement, this Agreement and of all the matters relating hereto. (d) Each party or responsible officer or agent thereof has read this Agreement and understands the contents hereof. Each of the persons executing this Agreement on behalf of the respective parties is empowered to do so and thereby binds his respective party. Further, each party to this Agreement agrees to indemnify and hold the others harmless from any liability, claim, demand, expense and attorneys' fees incurred by the others as a result of any person asserting that the person who executed this Agreement was not authorized to do so. (e) In entering into this Agreement and the settlement provided for herein, each party assumes the risk of any misrepresentation, cdncealment or mistake with respect to this Agreement, the execution of this Agreement, or the settlement provided for herein. If any party should subsequently discover that any fact relied upon it by in entering into this Agreement was untrue, or that any fact was concealed from it, or that its understanding of the facts or of the law was incorrect, such party shall not be entitled to any relief in connection therewith, including, without limiting the generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement. Subject to the limitations contained herein, this Agreement is intended to be and is final, binding and conclusive between and among the parties hereto with respect to certain of the claims which have been asserted on the Project, regardless of any claim of 0 misrepresentation, promise made without the intention of performing, concealment of fact, mistake of fact or law, or of any other circumstance whatsoever. -. (f) Each party hereto represents and warrants that there has been no assignment, sale or transfer, by operation of the law or otherwise, of any claim, right, cause of action, demand, obligation, liability or interest released by any of them as provided herein. (a) The warranties, guarantees, rights and obligations created by this Agreement shall survive the execution of this Agreement, unless modified, amended or released by a subsequent Agreement. (b) This Agreement and the releases, payments and other terms provided for herein are made, executed, given and accepted as part of a compromise and settlement of disputed claims. No provision(s) of this Agreement, nor any acceptance of the benefits thereof by or on behalf of any of the parties hereto shall be construed or deemed to be evidence of an admission of fact, matter,- thing or liability of any kind to any other party. Each of the parties hereto denies any liability of any kind to any other party for any purpose, and this settlement is made solely and entirely as a compromise and for the purpose of fully and finally resolving the disputed matters referred to herein. 23 (c) Each party agrees to bear its own costs and attorneys' fees incurred to date with respect to the Project and' in the Pending Action. Further, each party specifically waives any and all claim(s) against any other party hereto or their sureties for the recovery of the attorney's fees and costs. In the event of any litigation arising under or concerning this Agreement, the prevailing party shall be entitled to recover attornevs' fees and costs from the non -prevailing party jn such litigation. (d) This Agreement and the exhibits hereto are the entire agreement between the parties with' respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral and written agreements and discussions between or among any of them. The parties hereto acknowledge and agree that there are no conditions, covenants, agreements or understandings between or among any of them except as set forth in this Agreement and the exhibits hereto. This Agreement may be amended only by a further signed writing. (e) - This Agreement is binding upon and shall inure to the benefit of each of the parties hereto and their respective parent companies, subsidiaries, affiliates, predecessors, successors, divisions . shareholders, directors, officers, employees, attorneys, agents, representatives,- heirs and assigns. _ (f). ' The validity, construction and performance of this Agreement, as well as the rights and obligations of the parties hereunder, shall be governed, construed and enforced in 24 accordance with the laws of the State of California, without regard to principles of choice of law. (g) Each of the parties hereto has cooperated and participated in the drafting and preparation of this Agreement. Accordingly, the parties hereby acknowledge and agree that this Agreement shall not be construed or interpreted in favor of or against any party by virtue of the identity of its preparer. (h) Each term of this Agreement is contractual and not merely a recital. (i) With respect to the claims and matters which have been expressly released by this Agreement, each party is aware that it may hereafter discover claims or facts in addition to or different from those it now knows or believes to be' true with respect to the matters referred to in this Agreement. Nevertheless, it is the intention of the parties to fully, finally and forever settle and release all matters and all claims which'now exist, may exist, may hereafter exist, or heretofore have existed between them on the Project, subject to the limitations contained herein. As such, the releases given shall be and remain in effect as full and complete releases of all such matters, notwithstanding the discovery or existence of any additional or different claims or facts relative thereto. 1$ k `a ,�Pa�es tDsiGn SJ4 I (j) This Agreement may be executed in counterparts and when signed by each of the / 375 parties hereto with signed copies delivered to the other party, or their attorney, shall be deemed in full force and effect executed as set forth below. REVIEWED AND APPROVED: CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California Mayor ATTEST: 'C�Z/> - AOC4� C* orney 4,I jCity Clerk ,-319 V <:Z . r� - City Adrf&strator DATED: DATED: MONTGOMERY WATSON AMERICAS, INC., a corporation By: Title: PRO CONTRACTING CORP., a corporation By: Title: 26 0 0 9 DATED: DATED: ANNING JOHNSON COMPANY, a corporation By: Title: JACK KETTERING, an individual dba JACK KETTERING COMPANY By: Title: DATED: REYNOLDS METALS COMPANY, a corporation 174vt"D DATED: By: Title: HOTCH BEDROSIAN, an individual dba CMI ENGINEERING CONSULTANTS By: Hotch Bedrosian ACE RESTORATION & WATERPROOFING, INC. By: Scott Lansburg, President 11 APPROVED AS TO FORM: DATED: GIBBS, GIDEN, LOCHER & TURNER LLP By: William D. Locher Attorneys for CITY OF HUNTINGTON BEACH DATED: MANNING, MARDER & WOLFE By: Thomas R. Gill Attorneys for MONTGOMERY WATSON AMERICAS, INC. DATED: LAW OFFICES OF JAMES P. REID at Law By: James P. Reid Attorneys for PRO CONTRACTING CORP. DATED: QUADROS & JOHNSON By: Benjamin A. Johnson Attorneys for ANNING JOHNSON COMPANY DATED: MURTAUGH-, MILLER, MEYER & NELSON, LLP By: Thomas J. Skane Attorneys for JACK KETTERING, an individual dba JACK KETTERING COMPANY 18 l 1 DATED: WULFSBERG REESE, FERRIS & SYK.FS F.kVn-OCHE UiUM' CMPECKXAG71SEPCI398.RD2 (Rcv'd April 3, 1999) By: Jeffrey A. Sykes Attorneys for REYNOLDS METALS COMPANY 2q 'r • CITY OF HUNTINGTON BEACH v. MONTGOMERY WATSON AMERICAS OCSC CASE NO. 765940 LIST OF EXH BITS TO THE AGREEMENT FOR SETTLEMENT OF CLAIMS AND MUTUAL GENERAL RELEASES. EXHIBIT NO. DESCRIPTION Exhibit 1 The Sealed Specification Exhibit 2 Structural calculations Exhibit 3 Single -ply Roofing System Guaranty from BondCote Exhibit 4 Conditional Single -ply Roofing .System Guaranty from ANNING JOHNSON Exhibit 5 Work Letter describing the repairs and/ormodifications to the cast -in - place concrete liner Exhibit 6 PRO'S Guaranty for the liner Exhibit 7 PRO's Guaranty Performance Bond Exhibit 8 RELIANCE Consent Letter Exhibit 9 Maintenance Contract. Exhibit 10 Request for Dismissal of the pending action in its entirety, with prejudice, provided however, the parties expressly reserve the right to pursue its claims against CW's insurance carrier Exhibit 11 KETT'ERING's Unconditional Waiver and Release Upon Final Payment on the Project Exhibit 12 ACE's Unconditional Waiver and Release Upon Final Payment on the Project Exhibit 13 AJ's Unconditional Waiver and Release Upon Final Payment on the Project Exhibit 14 AJ's Release of Stop Notice in favor of CITY on the Project Exhibit 15 BondCote letter re roofing system Exhibit 16 MWA letter reroofing system LAVA.0CHERI}iC1N3'W0WECr Aa n 0=rrXV a RCA ROUTING SHEET INITIATING DEPARTMENT: Public Works/City Attorney SUBJECT: -Approve settlment of City v. Montgomery Watston (Peck . Reservior case COUNCIL MEETING DATE: Aril 20, 1998 RCA:ATTACNMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Attached (Explain Resolution (wlexhibits & legislative draft if applicable) Not Attached (Explain Tract Map, Location Map and/or other Exhibits Not Attached (Explain Contract/Agreement (w/exhibits if applicable) Si ned in full by the City Attome Attached Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Attached (Explain Certificates of Insurance (Approved by the City Attorney) Not Attached (Explain Financial Impact Statement Unbud et, over $5,000) Attached Bonds If applicable) Not Attached (Explain Staff Report (If applicable) Attached Commission, Board or Committee Report If applicable) Not Attached (Explain Findings/Conditions for Approval and/or Denial Not Attached Ex lain EXPLANATION FOR MISSING, . EXPLANATION FOR RETURWOF :ITEM: RCA Author: Gail Hutton, ext. 5555