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SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (“Agreement”), entered into on
November 17th_, 2023 is by and between Achen-Gardner Construction, LLC (“AGC”) and The
City of Glendale, Arizona (“COG”). Together, AGC and COG shall be referred to as the “Parties.”
Recitals
WHEREAS, in late 2021, AGC was awarded a slip lining project by COG under COG’s
Master JOC Agreement (C20-0363) and accompanying job order agreements, known as the
Arrowhead Sewer Lines Phase 1, Segment 1 project, located in the City of Glendale, Arizona
Project Number 202104 (the “Project”); and
WHEREAS, AGC began construction on the Project in early 2022; and
WHEREAS, a dispute arose on the Project and although the Project is not completed, the
Parties reached a mutually agreeable stopping point; and
WHEREAS, the Parties desire, without admitting liability, any such liability being expressly
denied, to avoid further costs and uncertainty from litigation, to enter into an agreement to fully
and finally resolve any and all claims, grievances and disputes arising from the Project.
NOW THEREFORE, in consideration of the rights and obligations created by this
Agreement, and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties agree as follows:
Terms and Conditions
1.
Consideration. Within fourteen (14) calendar days of the Effective Date, COG
agrees to pay AGC the sum of One Million Three Hundred Eighteen Thousand One Hundred
Ninety-Six and 53/100 Dollars ($1,318,196.53) (the “Payment”) along with its written acceptance
of the Project as completed. The Payment represents a total contract value of $3,150,000 less
the payments made by COG and received by AGC ($3,150,000 - 1,831,803.47 = $1,318,196.53).
The Payment shall be made by check payable to AGC. Each Party is to pay their own attorney’s
fees, costs, and expenses.
2.
Mutual General Release. Upon clearance of the Payment, AGC and COG, and
each of their related entities (including affiliates, parent and subsidiary companies), and each of
their owners, directors, agents, officers, employees, and representatives hereby releases and
forever discharges each other, and each other’s related entities (including affiliates, parent and
subsidiary companies), and their owners, directors, agents, officers, employees, and
representatives of and from all known and unknown claims, actions, causes of actions, liabilities,
rights, obligations, demands, costs, losses, debts, penalties, , expenses, fees, and compensation
whatsoever, in law or in equity (including attorneys’ fees and costs actually incurred), which each
party ever had, now has, or hereafter may have, against the other for any act or omission relating
to or arising from the Project.
3.
Acknowledgment of Settlement. The Parties acknowledge that acceptance of the
consideration specified herein is a complete compromise of matters involving disputed issues of
law and fact, and that by signing this Agreement and accepting and agreeing to the consideration
provided herein and the benefits of it, they are giving up forever any right to seek further monetary
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or other relief from the opposing party for any acts or omissions related to the Project and any
claims they may have related thereto. The Parties expressly waive any and all claims for
damages which exist as of the Effective Date, as well as any claim for damages that may
hereinafter exist with respect to the Project, including those of which the affected party did not
know or suspect to exist and which, if known, would materially affect its decision to enter into this
Agreement.
4.
Parties as Sole Owners. The Parties warrant that they are the owners and holders
of the various rights and obligations at issue in this Agreement and have the authority to enter
into this Agreement.
5.
Opportunity to Consult Counsel. In entering into this Agreement, the Parties
acknowledge that they have had the opportunity to consult with their respective attorneys of their
own choosing and have relied upon the legal advice of their respective attorneys, that the terms
of the Agreement are fully understood and voluntarily accepted by them, and that, other than the
consideration set forth herein, no promises or representations of any kind have been made to
them by any other Party. The Parties represent and acknowledge that in executing this Agreement
they did not rely, and have not relied, upon any representation or statement, whether oral or
written, made by any other Party or by any other Party’s agents, representatives or attorneys with
regard to the subject matter, basis or effect of this Agreement or otherwise.
6.
Not Recital. The terms of this Agreement are contractual, not a mere recital. This
Agreement is the result of negotiation between the Parties, each of whom participated equally in
the drafting hereof and each of whom is considered to be a “scrivener” of the Agreement. Nothing
in this Agreement shall be construed as or constitute a release of any Party’s rights to enforce the
terms of this Agreement.
7.
Interpretation. Should any provision of this Agreement be declared or be
determined by any court to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be
deemed not to be a part of this Agreement. The headings within this Agreement are purely for
convenience and are not to be used as an aid in interpretation. Moreover, this Agreement shall
not be construed against either Party as the author or drafter of the Agreement.
8.
Counterparts. This Agreement may be executed by the Parties in counterparts,
which may be transmitted via facsimile or electronic mail, each of which shall be deemed an
original, but all of which together will constitute a single document.
9.
Entire Agreement and Successors in Interest. The recitals set forth at the
beginning of this Agreement are incorporated by reference and made a part of this Agreement.
This Agreement constitutes the entire agreement and understanding of the Parties and
supersedes all prior negotiations and/or agreements, proposed or otherwise, written or oral,
concerning the subject matter hereof. Furthermore, no modification of this Agreement shall be
binding unless it is in writing and signed by each of the Parties hereto. This Agreement is intended
to be final and binding between and among the Parties hereto, including their agents, heirs,
executors, partners, successors and assigns.
10.
Effective Date of Agreement. This Agreement shall be effective as of the date last
signed by one of the Parties (the “Effective Date”).
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11.
Authority to Execute Agreement. By signing below, each Party warrants and
represents that the person signing this Agreement on its behalf has the authority to bind that
Party.
[The remainder of this page is intentionally blank]
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**READ THIS DOCUMENT CAREFULLY. IT
INCLUDES A GENERAL RELEASE OF KNOWN AND UNKNOWN CLAIMS.**
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have executed
this Agreement.
THE CITY OF GLENDALE, ARIZONA
By:
Printed:
Title:
Date:_________
STATE OF ARIZONA
)
)SS:
COUNTY OF _________________ )
Before me, a Notary Public in and for said County and State, personally appeared
_______________________ personally known to me to be the same, and after being first duly
sworn upon his oath, stated that he has read the above Settlement Agreement and General
Release and then affixed his signature.
_____________________________________
Commission Expires: ___________
Notary Public
County of Residence: ___________
ATTEST:
______________________________
Julie K Bower (SEAL)
City Clerk
APPROVED AS TO FORM:
______________________________
Michael D. Bailey
City Attorney
**READ THIS DOCUMENT CAREFULLY. IT
INCLUDES A GENERAL RELEASE OF KNOWN AND UNKNOWN CLAIMS.**
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have executed
this Agreement.
STA TE OF ARIZONA
COUNTY OF Mu-rltl2ft4
ACHEN-
Title:
President
-------------------
Date:
11/17/2023
-----'---'-'--'--'--'-=-"'-=-"-------------
)
)SS:
)
{A
Before -fi:e, a Notary Public in and for said County and State, personally appeared
11 le [ SR~
personally known to me to be the same, and after being first duly
sworn upon his oath, stated that he has read the above Settlement Agreement and General
Release and then affixed his signature.
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Commission Expires: fi!t(no2-r
County of Residence: .
l c o()o\.
I
t)
JAMES CRAIG
Notary Public • Arizona
Maricopa County
. _Commission # 648364
Comm,ss1on E ires
ril 18, 2027