HomeMy WebLinkAboutRES 11-132 RESOLUTION NO. 11-132
WHEREAS, the claim of McInnis Construction, Inc. has been discussed in an
Executive Session properly called and held Tuesday, April 5, 2011; and,
WHEREAS, the Council desires to authorize the settlement of the claim;
NOW, THEREFORE, BE IT RESOLVED BY THE
CITY COUNCIL OF THE CITY OF BEAUMONT:
THAT the City Attorney be and he is hereby authorized to settle the claim of Mcinnis
Construction, Inc.
PASSED BY THE CITY COUNCIL of the City f Beaumont this the 19th da of A ril,
Y Y P
2011.
NX,
Mayor Becky Ames -
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MUTUAL FULL AND FINAL SETTLEMENT AND RELEASE AGREEADENT
This Mutual Full and Final Release and Settlement Agreement(the"Agreement") is made and
entered into by The City of Beaumont, a Texas municipality("City"),Richter Architects, a
Texas corporation("Richter") and Jaster-Quintanilla Dallas, LLP, a Texas corporation QQ)
(collectively, the"parties").
WHEREAS, on or about June 16, 2008, the City as "Owner" and Richter as "Architect"
entered into that an Agreement (the "Architect") for the design of eight tennis courts at the
Beaumont Tennis Center and Athletic Complex at 6455 College Street in Beaumont, Texas (the
"Project');
WHEREAS, Richter alleges that it satisfactorily completed the Project and that
$28,265.89 remains due and owing to Richter from the City under the Contract;
WHEREAS, the City alleges that the contractor, McInnis Construction,Richter, the
architect and JQ, the civil engineer, failed to perform their respective duties in a good and
workmanlike manner as required by the Contract with regard to the design and construction of
the four(4)westerly tennis courts (claims by all parties under the Contract herein,the"Purported
Breaches");
WHEREAS, the easterly most four (4) of the eight (8) tennis courts are substantially
complete and acceptable as such to the City of Beaumont for purposes of play;
WHEREAS, the other four(4) westerly tennis courts remain unacceptable to the City and
will require remedial repair;
WHEREAS, it will become necessary for the City to spend $196,240 to resurface the four
(4)westerly tennis courts and repair;
[I]
WHEREAS, the City is willing to accept the westerly four (4) non-conforming tennis
courts and reduce the contract amount commensurate with the non-conformity in settlement of
all disputes;
WHEREAS, there is considerable doubt, uncertainty, confusion, controversy, and
disagreement concerning the existence and extent of the liability of the City, McInnis, Richter
and JQ, if any, for any amount of damages allegedly sustained by the City, Richter and JQ
regarding the Purported Breaches of the Agreements;
WHEREAS, the City, Richter and JQ wish to compromise and settle all claims that the
City, Richter or JQ might have against one another or other parties for whom the parties may be
legally responsible, including any and all claims that have been raised or that could have been
raised related to the Contract or the Project; and
WHEREAS, the parties do not wish or intend this Agreement to be an admission by
either of them concerning any matter whatsoever, and the parties expressly deny any and all
liability to one another.
NOW, THEREFORE,the parties to this Agreement agree as follows:
1. Richter's Release and Discharge.
Richter, on behalf of itself and any and all of its successors, assigns, representatives,
agents, and attorneys (herein, the "Richter-Releasors"), in consideration of the sum
described below in Paragraph 4, RELEASE, ACOUIT, AND FOREVER
DISCHARGE the City, as well as its present, past, and future council members, mayor,
manager, employees, agents, representatives, attorneys, predecessors and successors
(collectively, "City-Released-Parties"), from any and all claims, demands, and causes of
action of whatsoever kind or nature, at common law, statutory, or otherwise, whether
[27
accrued or unaccrued, whether known or unknown, whether now existing or that might
arise hereafter, present or future, suspected or unsuspected, asserted or unasserted,
foreseen or unforeseen, fixed or contingent, liquidated or unliquidated, including, but not
limited to, any claims for losses and damages of any kind, claims for breach of contract,
fraud, fraudulent inducement, attorneys' fees, court costs, expenses, interest, and all other
expenses or damages, incurred or to be incurred for or because of anything done or
omitted by City-Released-Parties, including but not limited to, any claim based on any
City-Released-Parties' sole negligence, partial negligence, negligence per se, gross
negligence, statutory liability, breach of contract (whether written or orals breach
of warranty (whether express or implied), deceptive act, or any other claim arising
directly or indirectly from the above-described Purported Breaches, and any other
matters alleged or that could have been alleged now or in the future relating to the
Project. Richter-Releasors intend this Release to be as broad and comprehensive as
possible so as to give the City-Released-Parties the broadest possible protection. The
parties agree that this Agreement is entered into without duress, in good faith, and for
sufficient consideration.
2. JQ's Release and Discharge.
JQ, on behalf of itself and any and all of its successors, assigns, representatives, agents,
and attorneys (herein, the "JQ-Releasors"), in consideration of the sum described below
in Paragraph 4, RELEASE, ACQUIT, AND FOREVER DISCHARGE the City, as
well as its present, past, and future council members, mayor, manager, employees,
agents, representatives, attorneys, predecessors and successors (collectively, "City-
Released-Parties"), from any and all claims, demands, and causes of action of whatsoever
[3)
kind or nature, at common law, statutory, or otherwise, whether accrued or unaccrued,
whether known or unknown, whether now existing or that might arise hereafter, present
or future, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, fixed
or contingent, liquidated or unliquidated, including, but not limited to, any claims for
losses and damages of any kind, claims for breach of contract, fraud, fraudulent
inducement, attorneys' fees, court costs, expenses, interest, and all other expenses or
damages, incurred or to be incurred for or because of anything done or omitted by City-
Released-Parties, including but not limited to, any claim based on any City-Released-
Parties' sole negligence, partial negligence, negligence per se, gross negligence,
statutory liability, breach of contract (whether written or oral), breach of warranty
(whether express or implied), deceptive act, or any other claim arising directly or
indirectly from the above-described Purported Breaches, and any other matters
alleged or that could have been alleged now or in the future relating to the Project.
JQ-Releasors intend this Release to be as broad and comprehensive as possible so as to
give the City-Released-Parties the broadest possible protection. The parties agree that
this Agreement is entered into without duress, in good faith, and for sufficient
consideration.
3. The City's Release and Discharge.
The City, on behalf of itself and any and all of its successors, assigns, representatives,
agents, and attorneys (herein, the "City-Releasors"), in consideration of Richter agreeing
to the sum described below in Paragraph 4, RELEASE, ACOUIT AND Ft3RREVER
DISCHARGE Richter and JQ, as well as its present, past, and future officers, directors,
employees, agents, representatives, attorneys, predecessors, successors, parents,
[4]
subsidiaries, interrelated companies, and affiliated companies (collectively, "Richter-JQ-
Released-Parties"), from any and all claims, demands, and causes of action of whatsoever
kind or nature, at common law, statutory, or otherwise, whether accrued or unaccrued,
whether known or unknown, whether now existing or that might arise hereafter, present
or future, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, fixed
or contingent, liquidated or unliquidated, including, but not limited to, any claims for
losses and damages of any kind, claims for breach of contract, fraud, fraudulent
inducement, attorneys' fees, court costs, expenses, interest, and all other expenses or
damages, incurred or to be incurred for or because of anything done or omitted by
Richter-Released-Parties, including but not limited to, any claim based on any
Richter-JQ-Released-Parties' sole negligence, partial negligence, negligence per se,
gross negligence, statutory liability, breach of contract (whether written or oral),
breach of warranty (whether express or implied),relating to any concrete or asphalt
surface or surfaces (including, but not limited to, the eight (8) tennis courts,
sidewalks and parking areas) designed by Richter and JQ, deceptive act, or any
other claim arising directly or indirectly from the above-described Purported
Breaches, and any other matters alleged or that could have been alleged now or in
the future relating to the project. Notwithstanding anything to the contrary
contained above and for the sake of clarity, Richter and JQ agree to honor the
express warranty as provided in the bid specification for work performed by
Richter and JQ; provided, however, Richter, JQ and the City agree and
acknowledge that Richter and JQ are NOT providing an express or implied
warranty on concrete or asphalt surfaces designed by Richter and JQ pursuant to
[5)
the Contract (which concrete and asphalt surfaces include, but are not limited to,
the eight (8) tennis courts, sidewalks and parking areas). The City-Releasors intend
this Release to be as broad and comprehensive as possible so as to give Richter-JQ-
Released-Parties the broadest possible protection. The parties agree that this Agreement
is entered into without duress, in good faith, and for sufficient consideration.
4. Payment.
In consideration of the mutual release and indemnity provisions and other agreements
provided for herein, Richter agrees to pay City, upon full execution of this Agreement,
the total sum of$100,000 less the amount due of$28,265.89 for a balance due to the City
of$71,734.11. This payment shall be made by check made payable to City of Beaumont
on or before September 16,2011.
5. Capacity to Execute Agreement,No Assignments.
Richter, JQ and the City represent and warrant that no other person or entity has or has
had any interest in the claims, demands, obligations, or causes of action referred to in this
Agreement except as otherwise set forth herein, and that Richter and the City have the
sole right and exclusive authority, respectively, to execute this Agreement and to receive
the consideration specified in it, and Richter, JQ and the City have not sold, assigned,
transferred, conveyed or otherwise disposed of any of the claims, demands, obligations,
or causes of action referred to in this Agreement.
Richter, JQ and the City represent and warrant that they have not assigned all or part of
any claim or cause of action they may have against the other to any third party.
[6)
6. Representation of Comprehension of Document.
Richter and JQ warrant and represent to the City that, before executing this Agreement, it
understands the terms, contents, conditions and effects of this Agreement; that in making
this Agreement it has had the benefit of and relied on the advice of attorneys of its
choosing; and that no promise or representation of any kind has been made to it by the
City, or by anyone acting for the City, except as is expressly stated in this Agreement.
Richter has relied solely on its own judgment and the advice of counsel of its choosing in
making this Agreement, and it fully understands that this is a FULL, COMPLETE AND
FINAL RELEASE of all claims, known or unknown, present or future, that it has or
may have against the City as a result of the Purported Breaches or anything done or
omitted by the City.
The City warrants and represents to Richter and JQ, before executing this Agreement, it
understands the terms, contents, conditions and effects of this Agreement; that in making
this Agreement it has had the benefit of and relied on the advice of attorneys of its
choosing; and that no promise or representation of any kind has been made to it by
Richter or JQ, or by anyone acting for Richter or JQ, except as is expressly stated in this
Agreement. The City has relied solely on its own judgment and the advice of counsel of
its choosing in making this Agreement, and it fully understands that this is a FULL,
COMPLETE AND FINAL RELEASE of all claims, known or unknown, present or
future, that it has or may have against Richter or JQ as a result of the Purported Breaches
or anything done or omitted by Richter
[7]
7. Acknowledgement of Discharge.
Richter further acknowledges that the payment described in Paragraph 4 of this
Agreement represents the full amount owed to the City. Richter acknowledges and
understands that the payment described in this Agreement is all the City will ever receive
from Richter and/or JQ as a result of the Purported Breaches or anything done or omitted
by Richter or JQ.
8. Validity, Choice of Law,Venue.
This Agreement shall be governed by and construed in accordance with the laws of the
State of Texas. Venue for any disputes relating in any way to this Agreement shall lie
exclusively in Jefferson County, Texas. If any provisions of this Agreement or any
provisions hereafter adopted shall for any reason be found to be inapplicable, invalid,
illegal, or unenforceable in any respect, such inapplicability, invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but the
Agreement shall be construed as if such provision shall be modified to the extent of such
inapplicability, invalidity, illegality, or other unenforceability. The parties acknowledge
that they are executing this Agreement by their own free will and with a complete
understanding of its legal consequences.
9. Not an Admission of Liability.
It is AGREED and UNDERSTOOD that this Agreement and the payment detailed in
Paragraph 4 is being made by Richter as a final compromise and settlement of a disputed
claim, and such payment is not to be construed as an admission of liability of any fact on
(8)
the part of the City, or anyone else, in this or any other proceeding. Richter has
expressly denied any liability. Similarly, it is AGREED and UNDERSTOOD that this
Agreement and Richter's agreement to pay will not be construed as an admission of
liability of any fact on the part of Richter, or anyone else, in this or any other proceeding.
10. Confidentiality Agreement.
It is agreed between all parties to this Agreement that the terms of the settlement will be
and shall remain confidential to the extent allowed by law. The parties hereby agree that
they will not in any way reveal the terms of the settlement to any person, firm,
corporation, or entity, with the exception that the disclosure shall not be a violation of
this paragraph where the same is required by law or court order, or any agency or
authority having jurisdiction to require disclosure; provided further, however, that the
parties may disclose this agreement to their attorneys, accountants, trustees, financial
advisors and/or their tax related consultants, as may be necessary in their business affairs.
11. Entire Agreement.
This Full and Final Settlement and Release Agreement contains the entire agreement
between parties with regard to the matters set forth herein and shall be binding upon and
inure to the benefit of the successors and assigns of each.
By their signatures below, Richter, JQ and the City represent that they understand that
this Full and Final Settlement and Release Agreement constitutes a final and complete
release of all claims, regardless of their kind or character, including any possible claim
191
which might be discovered in the future by the undersigned parties as a result of the
Purported Breaches or damages suffered on account of the alleged conduct of the parties.
WITNESS MY HAND to this instrument on this the day of September, 2011.
Richter Ar to is
By:
Title: S
STATE OF TEXAS §
COUNTY OF)EFFERSE W Wxe teS §
BEFORE ME,the dersigned authority, on this day personally appeared,
�•�► a '�c i( , President of Richter Architects, a Texas corporation,
on behalf of said corporation. /7
GIVEN UNDER MY HAND AND SEAL OF O C on this of September,
2011.
N T Y PUBLIC—STATE OF TEXAS
"y
MonlCe Gann
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WITNESS MY HAND to this instrument on this the / day of September, 2011.
Jaster-Quintalnilla Dallas,LLP
By:
Title:
STATE OF TEXAS §
COUNTY OF JEFFERSON §
1101
BE F RE ME,the dersigned authority, on this day personally appeared,
President of Jaster-Quintalnilla Dallas, a Texas
corporation, on behalf of s 'd corporation.
GIVE , Q. , � AL OF OFFICE on this t day of September,
2011. o i `'��- ti
WI
'Notary Pabise.S4�;a csr ia�as
��9t= My,�ommissian Ex;sires
09125!20' 2 OTARY PUBL —STATE OF TEXAS
nwa
WI to this instrument on this the day of September, 2011.
City of Beaumont IC,
By: �
Title: �•.� /'L�...c�GI
STATE OF TEXAS §
COUNTY OF JEFFERSON §
BEFORE ME,the undersigned authority, on this day personally appeared,Kyle Hayes,
City Manager, of the City of Beaumont, a Texas a municipality, on behalf of said
municipality.
GIVEN MY HAND NO S AL
2011. OF OFFICE on this day of September,
7WKA nA
v' NOTARY PLI13LIC—STATE OF TEXAS
(11j
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