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HomeMy WebLinkAboutRRM Design Group and Brown Reynold Watford Architects Inc; 2020-10-12;Settlement Agreement and Release of All Claims This Settlement Agreement and Release of All Claims ( "Agreement") is entered into and effective this 12('' day of October 2020 ("F:ffective Date"), by and among: (1) the City of Carlsbad ("CITY"),: (2) RRM Design Group ("RRM"), and (3): Brown Reynolds Watford Architects, Inc., sometimes referred to as BRW Architects, Inc. (collectively referred to as "BRW"). CITY, RRM, and BRW are sometimes referred to singularly as a "Settling Party' and collectively as "Settling Parties?' RECITALS This Agreement is made with reference to the following facts: A. CITY entered into a series of written contracts with RRM for professional services associated with the design and construction of the public work of improvement commonly known as the Joint First Responder Training Facility, Contract No. 3686 (hereinafter, the "Project"). B, On or about February 26, 2008 and May 19, 2010 BRW entered into written contracts with. RRM for professional, services associated with the design and Construction of the 25-yard and 100-yard firing range.s that were part of the Project. 'C. On or about. June 13, 2016, CITY filed a .complaint in the Superior Court of the State of California for the County of San Diego, and began that action entitled City of Carlsbad vs. Ledcor Construction Inc., et al., case number 7-2016-00019850-CU-CD-CTL ("Action"). • D. In the Action, CITY alleges causes of action against Ledcor and others for (1) breach of contract,. and (2) negligence seeking damages relating to claims of construction defects at the Project, E. On August 4, 2017. :CITY filed an amendment to its complaint, naming RRM as DOE 1. F. On March 27, 2018 RRM tiled a cross-complaint against BRW for breach of contract and indemnity-related causes of action. G. CITY and RRM later filed amended pleadings to which RRM and BRW also filed amended pleadings generally denying all material allegations and asserting various affirmative defenses. Page 1 017 H. Without admitting any liability, the Parties wish to resolve, fully, finally, and completely, all disputes between them arising from or in any way related to the. Action. AGREEMENT For good and valuable consideration, the receipt of which is acknowledged, the Parties agree as fellows: I. Recitals. The Recitals set forth above are incorporated herein, by reference and are made a part of this Agreement. 2. Release and Discharge. a. CITY's Release of RRM and BRW. CITY releases and discharges all claims of every kind whatsoever (including without limitation claims for fraud, breach of contract, breach of fiduciary duty, negligence, breach of statutory duties, violation of State License. laws, surety bond claims, compensatory damages, interest, penalties, punitive damages, specific performance, indemnity (express, implied, and/or equitable), injunctive or declaratory relief, costs, attorneys' fees and/or expert fees) whether known or unknown, which CITY or any of its agents, shareholders, divisions, departments, directors, officers, managers, subcontractors, consultants, attorneys, any other related entity or person, representatives, employees, predecessors, successors and/or assigns, asserts or could assert against, and covenant. not to sue, RRM, its agents, shareholders, members. partners, successors, predecessors, principals, owners, affiliates, business entities, insurers, divisions, departments, directors, officers, managers, subcontractors, consultants (including BRW), attorneys, any other related entity or person, representatives; sureties, insurers, reinsurers and joint risk pools, respective officers, employees, based upon or arising out of the Project, the Action, or any other matter or event related to the Project. b, RRM and BRW's Release of CITY. RRM and BRW release and discharge all claims of every, kind whatsoever (including without limitation claims for fraud, breach of contract, breach of fiduciary duty. negligence, breach of statutory duties, surety bond claims, compensatory damages, interest, penalties, punitive damages, specific performance, indemnity (express, implied, and/or equitable), Crawford rights, injunctive or declaratory 'relief, costs, attorneys' fees and/or expert fees) whether known or unknown, which RRM or B.RW or their respective agents, shareholders, members, partners, successors, predecessors, principals,. owners, affiliates, business entities, insurers, divisions, departments, directors, officers, managers, subcontractors, consultants (including BRW), attorneys, any other related entity or person, representatives, sureties, insurers, reinsurers and joint risk pools, respective officers, employees, asserts or could assert against the CITY or any of its agents, shareholders, divisions, departments, directors, officers, managers, consultants (including BRW), attorneys, any other related entity or person, representatives, sureties, insurers, reinsurers and joint risk pools respective officers, employees, predecessors, successors and/or assigns, based upon or arising out of the Project, the Action, or any other matter or event related to the Project. Page 2 of 7 c. R.RM and 1.3RW's Mutual Release. RRM and BRW for themselves, their past, present and future assigns, agents, officers, employees, shareholders, members, partners, successors, predecessors, principals, owners, affiliates, business entities, insurers, and all persons or entities acting by, through, under, or in concert with them, completely release, acquit, and fully, finally and forever discharge each other and their past, present and future assigns, agents, officers, .employees, shareholders, members, partners, successors, predecessors, principals, owners, affiliates, business entities, insurers, subconsultants on the Project, and all persons or entities acting by, through, under, or in conceit with them, from. any and all claims, actions, rights, attorneys' fees, obligations, costs, liens, judgments, demands, damages, liabilities, expenses, compensation and causes of action of any and every kind, nature and character whatsoever, known or unknown, that they may now have, has ever had, or may have in the future against each other, .based on any theory of recovery, arising out of the Project, the Action, or any other matter or event related to the Project, d. The releases set forth in paragraph 2(a) through 2(c) of this Agreement do not serve as a release of any claims, actions, rights, attorneys' fees, obligations, .costs, judgments, demands, damages, liabilities, expenses, compensation or causes of action of any and every kind created by a breach of this Agreement, e. Waiver. ..of Civil Code Section 1.542. The Settling Parties further acknowledge that they may discover facts different from or in addition to those which they now know or believe to be true with respect to any release made, and agree that every release herein. made is now and Will remain effective, notwithstanding such different or additional facts or the discovery thereof. The Settling Parties expressly waive and relinquish any and all rights and benefits conferred upon them by the provisions of section 1542 of the California Civil Code, which are as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, :IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. The Settling Parties acknowledge that the foregoing waiver of the provisions of Section 1542 of the California Civil Code is part of the consideration in this Agreement. The Settling _Parties expressly consent that the general releases shall be given full force and effect in accordance with each and all of their express terms and provisions, including those terms and provisions relating to unknown and unsuspected claims, demands, and causes of action, if any, to the same effect as those terms and provisions relating to any other claims, demands, and causes of action. Each Settling Party further agrees and covenants that if the facts with respect to which this Agreement is executed are found to be different from the facts now believed to be true, such Page 3 of 7 party expressly accepts and assumes the risk of such possible difference in facts and agrees that this Agreement shall be and remain fully effective notwithstanding such difference in facts. 3. Payment By RIM. In consideration of this Agreement, the releases set forth in the Agreement, and the settlement of all known issues on the Project, RRM agrees to cause payment to be issued in favor of CITY in the total sum of Two Hundred-Fifty Thousand Dollars ($250,000.00) ("RRM's Settlement Sum"). .RRM's Settlement Sum shall be made via an ACH payment payable to the "Massie Berman Client Trust Account," taxpayer- identification number 32-0118859 and shall be remitted to counsel for the CITY no later than •forty-five (45) days after RRM receives a fully executed copy of this Agreement. 4. Payment By BRW. In consideration of this Agreement, the releases set forth in the Agreement, and the settlement of all known issues on the Project. BRW agrees to cause payment to be issued in favor of CITY in the total sum of Fifty Thousand Dollars ($50,000.00) ("BRW's Settlement Sum"). BRW's Settlement Sum shall be made via a check payable to the "Massie Berman Client Trust Account," taxpayer- identification number 32-0118859 and shall be delivered to counsel for the CITY no later than forty-five (45) days after BRW receives a fully executed copy of this Agreement. 5. Requests for Dismissal. Within seven (7) days after .RRIM's Settlement Sum and BRW's Settlement Sum have been paid in full, RRM will tile a dismissal, with prejudice of its cross-complaint and CITY will file a dismissal, with Prejudice, of the entire Action. 6. Attorneys' Fees. The Settling Parties shall bear their respective attorneys' or other professional fees .and associated costs incurred in, or in any way related to. asserting or defending the claims asserted by and between the Settling Parties, and the negotiation, preparation .and closing of this Agreement. lf, however, any Settling Party breaches any obligation under this Agreement, any non-breaching party shall be entitled to reasonable expenses, attorneys' fees, and costs incurred in any action taken to enforce the terms of the Agreement, or to remedy or compensate for such breach. 7. Representations and Warranties. Each of the Settling Parties represents and warrants that it has the full power, capacity, and authority to enter into this Agreement, that it has not Old, assigned or in any manner transferred any claims it may have against the opposing party to any third party, and that no other releases or settlements are necessary from any other .person or entity to release and discharge completely the other Settling Parties from the claims specified, in this.Agreement. 8.• Additional Documents. The Parties agree to perform such further acts and to execute and deliver such further documents as may .be reasonably necessary or appropriate to .carry Out the intent or provisions of this Agreement. 9. Execution Not an Admission. This Agreement is the result of a settlement and compromise of disputed matters. By entering into this Agreement, no Settling Party admits that the claims of the other are valid or meritorious, and each Settling Party agrees that the terms of this Agreement shall never be used, referred to, or considered, as an admission of liability of Page 4 of 7 such claims. This Agreement is not admissible in any proceedings for any purpose except to enforce the terms of this Agreement, seek a remedy for breach of this Agreement, or to support a request for a finding of good faith settlement 10. Legal Representation. Each Settling Party acknowledges that it has received the advice of independent legal .Counsel prior to the execution of this Agreement and had the opportunity to receive an explanation from legal counsel regarding the legal nature and effect of the Agreement, and each Settling Party understands the terms and provisions of this Agreement and its nature and effect. Each Settling Party further represents that it is entering into this Agreement freely and voluntarily,. relying solely upon the advice of its own counsel, and not relying on the representations of any other party or of the counsel of any other party except as to the release and waiver expressly set forth in this Agreement. Each Settling Party expressly agrees that this Agreement shall not be construed or interpreted for or against the party drafting the Agreement.. 11. Waiver. No breach of any provision in this Agreement can be waived except in writing by the Settling Party against whom enforcement of the waiver is sought. Waiver of one breach of any provision shall not be deemed to be a waiver of any other breach of the same or any other provision. Failure of any Settling Party to complain of any act or failure to act of any other Settling Party or to declare any other Settling Party in default hereunder, irrespective of how long such failure continues, shall not constitute a waiver of the rights of such Settling Party. No waiver of any provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar., nor shall any waiver constitute a continuing waiver unless executed in writing by the Settling Patty making the waiver. 12, Counterparts. This Agreement may be executed in eounterparts. When each Settling Party has signed and delivered such counterpart, each counterpart shall be deemed an. original, and, when taken together with other signed counterparts, shall constitute an agreement which shall be binding upon and effective as to all parties. No counterpart shall be effective until all Settling Parties have executed and exchanged an executed counterpart. 13. Successors and Assigns. This Agreement may not be assigned by any Settling Party without the prior written consent of all other Settling. Parties. Subject to the foregoing provisions, this Agreement shall be binding on and inure to the benefit of the heirs, descendants, legatees, devisees, executors, administrators, legal representatives, successors, assigns, assignors, insurers, owners, guarantors, sureties, partners, members, servants, employees, employers, agents, officers, directors, shareholders, beneficiaries, predecessors, and affiliates of the Settling Parties. 14. Integration. This Agreement contains the entire agreement and understanding concerning the subject matter herein and supersedes and replaces any prior negotiations and agreements between the Settling Parties, whether written or oral, 15. Severability. Except as. to the Payment and Release provisions of this Agreement, in the event that any one or more of the provisions of this Agreement shall be declared invalid, Page 5 of 7 illegal, or unenforceable by a court of competent jurisdiction in any respect, the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired. 16. Modifications. Any alterations, changes or modifications to this Agreement, in order to be effective, shall he made by written instrument or interlineation, and in each such instance shall be duly signed on behalf of each Settling Party. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all Settling Parties, 17. Materiality. Each provision of this Agreement shall be considered material for the purpose of establishing a breach of this Agreement. 18. E-Mail / Fax Validity. This Agreement may be executed in counterparts, each of which may be signed physically or electronically (e-signature) and transmitted by facsimile or electronically and shall have the same validity as an original for all purposes including, but not limited to utilization of the procedures for settling a dispute. 19 Acknowledgements. The Settling Parties acknowledge, represent and warrant that: (a) this Agreement and its reduction to final written form arc the result of extensive good faith negotiations between the Settling Parties; (b) they have carefully reviewed and fully understand all of the terms and provisions of this Agreement, and that they executed this Agreement after having sufficient opportunity to read and understand this Agreement and to confer with counsel; (c) the Settling Parties have executed this Agreement relying wholly upon their own judgment and advice of counsel of their independent selection, if any; (d) other than as set forth in this Agreement, the Settling Parties do not rely and have not relied upon any representation or statement made by any other Settling Party or by any person affiliated with or representing any of the other Settling Parties with respect to any of the facts involved in the Dispute compromised or with regard to the claims or asserted claims of either in that connection; (e) each Settling Party assumes the risk of any mistake of fact in connection with the true facts involved in such Dispute or in connection with any facts which are unknown to either Settling Party; (f) each Settling Party has willingly and knowingly entered into this Agreement following careful analysis of the law and the facts at issue in this .Dispute and after determining that this Agreement represents 'a fair and reasonable resolution of such Dispute; (g) each. Settling Party acknowledges that this Agreement is not the result of fraud, duress or overreaching; (h) any statute or rule of construction stating that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement; (i) each Settling Party has not assigned its rights in any of its claims against the other(s) to any other person or entity and (j) the tax consequences, if any,. of this Agreement shall be borne solely by the party incurring such tax consequences, and no Settling Party has relied upon any representation or statement made by any other Settling Party with regard to any potential tax consequences of this Agreement. 20, Enforcement of Agreement, in the event that any portion of this Agreement is deemed illegal, invalid or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of this Agreement and this Agreement shall be construed as though such illegal, invalid or unenforceable provision had never been contained herein, unless a court determines the primary purpose of this Agreement would be frustrated. The Settling Parties further agree that the Court in the Action retain jurisdiction under Code of Civil Page 6 of 7 BY: RRM Design Group Name: Title: BY: 13RW Architect Name: Miiell2K 7c0-41) Procedure sections 664.6 and 664.7 to enforce the terms of this Agreement. However, if the CITY wishes to enter judgment against RRM in connection with the Action on account of any non-compliance by RRM or BRW with the terms of the Agreement. RRM, through its counsel in the Action shall first receive fifteen (15) days' notice by OneLegal that the CITY intends to have judgment entered against it only for such non-compliance unless RRM or BRW cures such non- compliance. 21. Non-Disparagetnent The Parties shall not disparage or otherwise publish or communicate derogatory statements or opinions about or concerning the other to any other person or entity. Notwithstanding any enforcement action related to this non-disparagement provision of this Agreement, the releases described herein shall remain in full force and effect. 21 Law This Agreement shall be deemed to have been executed and delivered within the County of San Diego, State of California, and the rights and obligations of the Settling Parties shall be governed and enforced in accordance with the laws of the State of California. PLEASE READ THIS DOCUMENT CAREFULLY, IT CONTAINS A GENERAL RELEASE OF CLAIMS KNOW IN WITNESS WHEREOF, the Settling day and year first written above if not otherwise ii e executed this Agreement as of the low. ,arlsbad% Name: (...4p444b),DiCe.. Title; I( 'tilo A I a 6.1e, Title: -770) Page? of 7 Dated: 3Nr:421, Dated: Dated; /& Dated: BY: Name: RRMDcsif Grou Procedure sections 664.6 and 664.7 to enforce the terms of this Agreement. However, if the CITY wishes to enter judgment against RRM in connection with the Action on account of any non-compliance by RRM or BRW with the terms of the Agreement, RRM, through its counsel in the Action shall first receive fifteen (15) days' notice by OneLegal that the CITY intends to have judgment entered against it only for such non-compliance unless RRM or BRW cures such non- compliance, 21. Non-Disparagement. The Parties shall not disparage or otherwise publish or communicate derogatory statements or opinions about or concerning the other to any other person or entity. Notwithstanding any enforcement action related to this non-disparagement provision of this Agreement, the releases described herein shall remain in full force and effect. 22. Law, This Agreement shall be deemed to have been executed and delivered within the County of San Diego, State of California, and the rights and obligations of the Settling Parties shall be governed and enforced in accordance with the laws of the State of California. PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS A GENERAL RELEASE OF CLAIMS KNOWN AND UNKNOWN. IN WITNESS WHEREOF, the Settling Parties have executed this Agreement as of the day and year first written above if not otherwise indicated below. Dated: BY: City of Carlsbad Name: Title: Dated: Title: Cr 0 BY: BY: BRW Architects, Inc, Name: Title: Page 7 of 7