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Home My WebLink AboutPurkiss Rose, Inc, dba Purkiss Rose - 2010-06-07 • CITY OF HUNTINGTON BEACH Interdepartmental Communication TO: JOAN FLYNN, City Clerk FROM: JENNIFER MCGRATH, City Attorney DATE: July 8, 2010 SUBJECT: Settlement and Release Agreement Please receive and file the attached Settlement and Release Agreement between the City and Purkiss-Rose as well as other parties. This agreement was submitted to City Council at the 6/7/10 closed session as Item No. 3. �/ you. ENNIFER MCGRAT , City Attorney Attachment as above /K 49643 Settlement and Release Agreement Page 1 of 6 SETTLEMENT AND RELEASE AGREEMENT This SETTLEMENT AND RELEASE AGREEMENT(hereinafter"AGREEMENT")is made by and among the following parties: l. Claimant the City of Huntington Beach(the"CITY"): 2. Stephan D. Rose,Inc. (including its Related Persons and Entities,which include MIG/Purkiss-Rose,RSI; Purkiss Rose,Inc.; Purkiss Rose,Inc. dba: Purkiss Rose —RSI Landscape Architecture, Recreation and Park Planning;Steven Lang, James Pickel, Charlene Rose and Stephan D. Rose)(collectively, "PR"); 3. TMAD Engineers and TMAD Taylor&Gaines Engineers, a California corporation,(collectively"TMAD");and, 4. Kim Quon,an individual, and Studio 7,Inc. (collectively"QUON"), in connection with the CITY's claims for alleged losses related to the South Beach,Phase II Project(the"PROJECT"). PR,TMAD and QUON are hereinafter collectively referred to as "Settling Consultants." The foregoing parties to this Agreement are hereinafter collectively referred to as the"Settling Parties." RECITALS A. This settlement arises out of a request by the CITY for contribution towards claimed losses on the PROJECT, for which PR served as the prime consultant. B. On or about April 2,2001,the CITY and PR entered into a Professional Services Contract wherein PR agreed to provide Landscape Architectural Services for the PROJECT. C. On or about September 21,2001,PR and TMAD (specifically,TMAD Engineers) entered into a Standard Form Agreement(AIA Document C727, 1992 Edition)wherein TMAD agreed to perform electrical engineering services as a subconsultant to PR for the PROJECT. D. On or about November 8,2001,PR and QUON(specifically, Studio 7, Inc.) entered into a Standard Form Agreement(AIA Document C727, 1992 Edition)wherein QUON agreed to perform architectural services as a subconsultant to PR for the PROJECT. I Settlement and Release Agreement Page 2 of 6 I E. The CITY's claims-are summarized in the Log of Potential Changes to the Work, attached hereto as Exhibit"A" (the"CLAIMS"). F. It is the desire of the Settling Parties to fully and finally settle the CLAIMS between them arising out of, or related to,any and all services performed at the PROJECT. SETTLEMENT TERMS NOW THEREFORE,in consideration of the promises set forth below, it is agreed: 1. PAYMENT BYPR TO THE CITY. The CITY agrees to accept the total sum of $40,000 (Forty Thousand Dollars and No Cents)in full satisfaction of the CLAIMS related to any and all services performed at the Project by PR. Payment is to be made within 30(thirty) days of execution of this AGREEMENT. The check shall be made payable to"City of Huntington Beach",Tax ID 95-6000723, and sent to the attention of Eric Charlonne,Public Works Department, City of Huntington Beach,2000 Main Street,Huntington, Beach,CA 92648. 2. PAYMENT BY TMAD TO THE CITY. The CITY agrees to accept the total sum of$10,000(Ten Thousand Dollars and No Cents)in full satisfaction of the CLAIMS related to any and all services performed at the PROJECT by TMAD. Payment is to be made within 30 (thirty)days of execution of this AGREEMENT. The check shall be made payable to"City of Huntington Beach", Tax ID 95-6000723, and sent to the attention of Eric Charlonne,Public Works Department,City of Huntington Beach, 2000 Main Street,Huntington,Beach,CA 92648. 3. PAYMENT BY QUON TO THE CITY. The CITY agrees to accept the services of QUON in the form of completion of record drawings, which the Settling parties agree is valued at approximately$60,000(Sixty Thousand Dollars and no Cents). QUON agrees that, upon full execution of this AGREEMENT, it will deliver the record drawings to the CITY in CD Rom format marked "Record Drawings"within 60(sixty)days after receipt of the "As-Built" marked up construction drawing set that the construction manager, Concept Marines Associates (CMA),kept on-site on behalf of the City of Huntington Beach. The record drawings will be delivered to Eric Charlonne, Public Works Department, City of Huntington Beach,2000 Main Settlement and Release Agreement Page 3 of 6 Street,Huntington Beach, CA 92648 4. SEVERAL LIABILITY. Each Settling Consultant is severally responsible for payment of its respective settlement funds or provision of services, as applicable. No Settling Consultant shall be responsible for the non-compliance of any other Settling Consultant. 5. RELEASE BYALL PARTIES All Settling Parties hereby acknowledge,agree to,and accept the above-described settlement payments and services and in full compromise, i settlement and satisfaction of,and as sole consideration for,the final release and discharge of each other and each party,on behalf of themselves and their respective past,present, and future heirs, assigns,members, officers, alter egos, alleged alter egos,directors, agents, employees, principals,representatives,receivers,attorneys, insurers,predecessors-in-interest,and/or successors-in-interest, arising from or connected in any way with the CLAIMS as outlined herein ("RELEASED CLAIMS"). 6. PARTIES TO BEAR THEIR OWN COST. Each party shall bear its own costs, attorneys' fees and other expenses incurred in connection with the CLAIMS. GENERAL PROVISIONS AND REPRESENTATIONS 7. No Admission of Liability. It is further agreed and understood that all parties deny all allegations of liability, and have agreed to resolve this matter solely for the purpose of compromising and settling matters in dispute. Such compromise and settlement does not constitute an admission by all parties of the truth or validity of matters in controversy,nor shall it be construed as such. 8. No Prior Assignments. Each party represents and warrants that it is the owner of the RELEASED CLAIMS and that such RELEASED CLAIMS have not been and will not be assigned,transferred, or hypothecated,whether voluntarily or involuntarily, by subrogation, operation of law or otherwise,to any other individual or entity. 9. Entire Agreement. This AGREEMENT contains the entire agreement and understanding between all parties concerning its subject matter and integrates and supersedes all other agreements of any kind relating to the subject matter of this AGREEMENT. Each of the Settlement and Release Agreement Page 4 of 6 undersigned warrants that no promise or inducement has been offered to him or her except as set forth herein and that this AGREEMENT is executed without reliance upon any statement or representation by the parties released, or their representatives,concerning the nature and extent of injuries and/or damages and/or legal liability therefor. 10. Legal Capacity. Each of the undersigned warrants that he or she is of legal age, legally competent to execute this AGREEMENT,and has the authority of the party for whom the undersigned is executing this AGREEMENT. 11. Complete Defense. This AGREEMENT may be asserted as a complete defense to any claims, demands,and/or actions that may be brought relating to any RELEASED CLAIMS as set forth above. All parties acknowledge that this AGREEMENT is admissible in defense of any such claims,demands, and/or actions. 12. Successors and Assigns. This AGREEMENT shall be binding upon and inure to the benefit of the all parties and their respective successors,assigns,and receivers. 13. Investigation. Each of the undersigned further acknowledges that the party for whom the undersigned is executing this AGREEMENT has made such investigation of the facts pertaining to the settlement and this AGREEMENT and all matters pertaining hereto as he or she deems necessary and enters into this AGREEMENT with full knowledge of those facts. 14. Benefit of Counsel. Each of the undersigned further warrants that he or she has read the entire AGREEMENT,understands it and in addition,has had the opportunity to receive independent legal advice from counsel to the extent he or she considers it warranted as to the advisability of executing this AGREEMENT and with respect to all matters contained herein. 15. Joint Product. This AGREEMENT is the product of bargained for,arms-length negotiations between all parties and their counsel in good faith and without collusion, and shall not be construed for or against all parties or their representative(s). lb. California Law. This AGREEMENT shall be construed according to the laws of the State of California. 17. Severability. If any provision-of this AGREEMENT is held to be invalid or unenforceable,all of the remaining provisions shall nevertheless continue in full force and effect. Settlement and Release Agreement Page 5 of 6 18. Counter Parts. This AGREEMENT may be executed in one or more counter parts and,when said counter parts are taken together,shall constitute one original AGREEMENT. THE UNDERSIGNED HAVE READ THE FOREGOING SETTLEMENT AND RELEASE AGREEMENT AND FULLY UNDERSTAND IT. DATE: Z''S/� CITY OF HUNTINGTON BEACH By: Name: Title: l: DATE: STEPHAN D.ROSE,INC. and Related Entities as stated herein By: J- V-S2� Name• (ns_'p Title: DATE: KIM QUON By: Name: Title: DATE: STUDIO 7,INC. By: Name: Settlement and Release Agreement Page 5 of 6 18. Counter Parts. This AGREEMENT may be executed in one or more counter parts and,when said counter parts are taken together, shall constitute one original AGREEMENT. THE UNDERSIGNED HAVE READ THE FOREGOING SETTLEMENT AND RELEASE AGREEMENT AND FULLY UNDERSTAND IT. DATE: CITY OF HUNTINGTON BEACH By: Name: v _ Title: DATE: STEPHAN D.ROSE,INC. and Related Entities as stated herein By: Name: Title: DATE: KIM QUON By: Name: (M Wy In Title: DATE: (,� Ul?.s° 7.0/a STUDIO 7,INC. 41-1 By: 4 �r� Name: OUOkI Settlement and Release Agreement Page 6 of 6 Title: DATE: Z�5r , b TMAD ENGINEERS I i By: Name: Zr4 2eH S f y r/jt t,0W Title: , „ ► DATE: TMAD TAYLOR& GAINES ENGINEERS By: Name:�.06L� l:��1�1v2►n►.r Titlec ,' a. i I i i