HomeMy WebLinkAbout06059 - PARSON CONSTRUCTION SETTLEMENT AGREEMENT City Council Minutes
October 6, 2010
Page 2
REPORT OF CLOSED SESSION:
The meeting was called to order at 4:00 p.m. and City Attorney Holland requested the
City Council consider adding an Item to the Closed Session Agenda pursuant to Cal.
Gov. Code Section 54856.9(a) Conference with Legal Counsel for Existing Litigation
concerning the matter of City of Palm Springs v. Parsons Construction, Case No. INC
072105, Riverside Superior Court, Indio Division.
ACTION: 1) Find that the Item came to the attention of the City after the posting of the
Agenda and there is an immediate need to hear and/or take action on the Item; and 2)
Add to the Closed Session Agenda one Item of Existing Litigation, G.C. Section
54856.9(a) City of Palm Springs v. Parsons Construction, Case No. INC 072105,
Riverside Superior Court, Indio Division. Motion Mayor Pro Tern Hutcheson,
seconded by Councilmember Weigel and unanimously carried 4-0, noting the
absence of Councilmember Mills. P\
City Attorney Holland stated that the City Council recessed into Closed Session to
discuss Items on the Closed Session Agenda, and reported the City Council provided
settlement authority for the City of Palm Springs v. Parsons Construction case.
ACCEPTANCE OF THE AGENDA:
Councilmember Mills noted his business related abstention on Consent Calendar Item
2.1.
Councilmember Foat requested Items 2.J. and 2.K. be removed from the Consent
Calendar for separation.
Councilmember Foat requested the City Council add an Item to the Agenda as Item
5.D. titled "PROPOSED LAND EXCHANGE BETWEEN THE BUREAU OF LAND
MANAGEMENT AND THE AGUA CALIENTE BAND OF CAHUILLA INDIANS," and
stated there is an immediate need to hear and/or take action on the Item as the public
comment period ends prior to the next meeting.
ACTION: 1) Find the Item came to the attention of the City after the posting of the
Agenda, and there is an immediate need to hear and/or take action added item; and 2)
Add the Agenda as Item 5.D., "PROPOSED LAND EXCHANGE BETWEEN THE
BUREAU OF LAND MANAGEMENT AND THE AGUA CALIENTE BAND OF
CAHUILLA INDIANS." Motion Councilmember Foat, seconded by Mayor Pougnet
and unanimous carried.
Councilmember Weigel requested Item 2.K. be removed from the Consent Calendar for
separate discussion.
ACTION: Accept the Agenda as amended. Motion Mayor Pro Tern Hutcheson,
seconded by Councilmember Mills and unanimously carried on a roll call vote.
$EMIMENT AND RELEASE AGREEMENT
INTRODUCTION
This Settlement and Release Agreement ("Agreement")has been entered y
into by and between Persons TranspoRation Grou Inc. ("Persons"), the Clty
7l1. 4AWW ge,0, A 7A.
Assoc�gaFts,aC•vC, •-
Palm Springs
("Gensler'), and Harbor Consbuction, Inc. ("Harbor). Colleattvsly,Parsons, City,
Gensler, and Harbor are also sometimes hereinafter referred to as the"Parties"
and/or"Party'.
RLC-ITA
LS
WHEREAS, on or about February 16, 2005, parsons entered Into a
contract with the City entitled the "Amended and Restated Contract Service
Agreement for Airport Terminal Construction Manager'(the'Contract").
WHEREAS, the Contract designated Parsons as the Clty's Construction
Manager and owner's representative on a public works project consisting of the
expanalon of an airport terminal passenger hold-morn, an associated lavatory
building,and a connecting courtyard and walkway(the"Project").
WHEREAS,Gensler was retained and provided services to dw City as the
architect and design engineer on the Project.
WHEREAS, Harbor was awarded the contract as the general contractor
on the Project on or about May 22,2006,
WHEREAS, the City terminated the Contract between the City and
Parsons for convenience on or about January 25,2007.
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SETTLEMENT AND RELEASE AGREEMENT
INTR�,�3]QN
This Settlement and Release Agreement("Agreement")has been entered
Into by and between Parsons Transportation Group, Inc. ("Parsons"), the City of "
Palm Springs ("City"), ,
("Gensler"), and Harbor Construction, Inc. ("Harbor"). Collectively, Parsons, Cit `n\VA
Gensler, and Harbor are also sometimes hereinafter referred to as the "Parties"
and/or"Party".
13ECITALS
WHEREAS, on or about February 16, 2005, Parsons entered Into a
contract with the City entitled the "Amended and Restated Contract Service
Agreement for Airport Terminal Construction Manager"(the"Contract").
WHEREAS, the Contract designated Parsons as the City's Construction
Manager and owner's representative on a public works project consisting of the
expansion of an airport terminal passenger hold-room, an associated lavatory
building,and a connecting courtyard and walkway(the"Project").
WHEREAS, Gensler was retained and provided services to the City as the
architect and design engineer on the Project.
WHEREAS, Harbor was awarded the contract as the general contractor
on the Project on or about May 22,2006.
WHEREAS, the City terminated the Contract between the City and
Parsons for convenience on or about January 25, 2007.
737309.1
SETTLEMENT AND RELEASE AGREEMENT
INTRODUCTION
This Settlement and Release Agreetreni ("AgreemenV) has been entered
into by and between Parsons Transportation Group, lnc. ('Parsons"), the City of
4;rx
Palm SpHngs
("Gensler'), and Harbor Construction, Inc. ( Harbor). Collertively, Parsons, City,
Gensler, and Harbor are also sometimes hereinafter referred to as, the "Parties*
and/or"Party".
Rgq!TALS
WHEREAS, on or about February 16, 2005, Parsons entered Into a
contract with the City entitled the "Amended and Restated Contract Service
Agri.,ernen t for Airport Terminal Construct on Manager" (the"Contract').
WHEREAS, the Contract designated Parsons as the C111y's Construction
Manager and owner's representative on a public wor"s project consisUng of the
expansion of an airport terminal passenger hold-room. an assoClated lavatory
building, and a connecting courtyard and walkway(the,*Project")
WHEREAS, Gensler was retained and provided sendces to the City as the
architect and design engineer on the Project,
WHEREAS, Harbor was awarded the contract as the general WnlTaUtOT
on the Project on or about May 22, 20K
WHEREAS, the City terminated the Contract betvieen the City and
Parsons for convenience on or about January 25,21,107.
i
SETTLEMENT AND RELEASE AGREEMENT
INTRODUCTION
This Settlement and Release Agreement ("Agreement") has been entered
into by and between Parsons Transportation Group, Inc. ("Parsons"), the City of
Palm Springs ("City"), Gensler Architecture, Design & Planning Worldwide
("Gensler"), and Harbor Construction, Inc. ("Harbor"). Collectively, Parsons, City,
Gensler, and Harbor are also sometimes hereinafter referred to as the "Parties"
and/or"Party".
RECITALS
WHEREAS, on or about February 16, 2005, Parsons entered into a
contract with the City entitled the "Amended and .Restated Contract Service
Agreement for Airport Terminal Construction Manager" (the "Contract").
WHEREAS, the Contract designated Parsons as the City's Construction
Manager and owner's representative on a public works project consisting of the
expansion of an airport terminal passenger hold-room, an associated lavatory
building, and a connecting courtyard and walkway (the "Project").
WHEREAS, Gensler was retained and provided services to the City as the
architect and design engineer on the Project.
WHEREAS, Harbor was awarded the contract as the general contractor
on the Project on or about May 22, 2006.
WHEREAS, the City terminated the Contract between the City and
Parsons for convenience on or about January 25, 2007.
1
737309.1
V
WHEREAS, on November 26, 2007, the City filed a civil lawsuit against
Parsons in the Riverside Superior Court entitled City of Palm Springs v. Parsons
Transportation Group, Inc., RSC Case No. INC 072105 (the "Action"). Parsons
has denied each and every material allegation in the City's complaint and admits
no liability whatsoever.
WHEREAS, Parsons subsequently filed in the Action cross-complaints for
indemnification and contribution against Harbor and Gensler. Harbor and
Gensler have denied each and every allegation in Parsons' Cross-complaints and
admit no liability whatsoever.
WHEREAS, Parsons filed amendments to the cross-complaints naming
Allen F. Smoot and Allen F. Smoot and Associates ("Smoot") and Mike Fontana
and Mike Fontana and Associates ("Fontana") as additional cross-defendants in
the Action. As of the date of this Agreement, however, neither Smoot nor
Fontana had been served with summons and neither Smoot nor Fontana ever
became a party to the Action.
WHEREAS, the Parties voluntarily submitted the Action to mediation
before Kenneth C. Gibbs, Esquire, on October 4, 2010, and following said
mediation arrived at the terms of settlement expressed, memorialized, and given
effect by this Agreement.
WHEREAS, the Parties further desire, and intend hereby, to provide for a
full and final resolution and compromise of any and all claims raised in or related
to the Action, through the mutual execution of this Agreement, and to hereinafter
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737309.1
'N
1
discharge each other from all obligations between them concerning the Project
and therefore hereby agree as follows:
TERMS CONDITIONS AND-PROVISIONS
1. The "Introduction" and "Recitals" sections of this Agreement are
incorporated herein in full as terms and/or conditions and/or provisions of this
Agreement.
2. No Other Claims: The Parties, and each of them, do hereby
covenant and represent that they have not filed any other complaints, charges or
lawsuits against anyone, including the City, or any affiliated or related entity or its
officers, employees or agents with any federal, state or local governmental
agency or any court regarding the Contract, the Project, the Action, and/or any
matter that could have been brought in the Action. The Parties, and each of
them, do hereby further covenant and represent that they have not filed any other
complaints, charges or lawsuits against anyone, including Parsons, Gensler,
Harbor, Smoot, Fontana, or any affiliated or related entity or its and/or their
officers, employees or agents with any federal, state or local governmental
agency or any court regarding the Contract, the Project, the Action, and/or any
matter that could have been brought in the Action.
3. Consideration and Payment: Within thirty days (30) days of the
execution of this Agreement, Parsons agrees to pay to the City the sum of One
Hundred and Ninety-Eight Thousand Dollars ($198,000.00). Within thirty days
(30) days of the execution of this Agreement, Gensler agrees to pay to the City
the sum of One Thousand Dollars ($1,000.00). Within thirty days (30) days of
3
737309.1
the.execution of this Agreement, Harbor agrees to pay to the City the sum of One
Thousand Dollars ($1,000.00). In exchange, upon receipt of all payments in full
under this Agreement, the City agrees to file a request for dismissal, with
prejudice, or pleading of like effect, as to the City's operative complaint in the
Action, in its entirety, and Parsons agrees to concurrently file a request for
dismissal, with prejudice, or pleading of like effect, as to any and all of its
operative cross-complaints, and/or amendments thereto, filed in the Action, in.
their entirety.
4. Contingencies: The effectiveness of this Agreement is subject to
the successful negotiation of the payments required by Section 3 of this
Agreement.
5. If for any reason the foregoing contingency is not fully satisfied,
then this Agreement shall be of no force and effect as if it had never been written;
and the Parties hereto will have all those rights and obligations vis-6-vis one
another that they had at the time of entering into this Agreement, including,
without limitation, the pursuit'of the Action.
6. Mutual and General Releases:
(a) The Parties, and each of them, on behalf of themselves,
their respective officers, officials, representatives, boards, agencies,
departments, directors, shareholders, employees, investors, stockholders,
administrators, agents, and attorneys, predecessors and successor corporations,
and assigns, hereby fully and forever release, acquit and discharge each other
and each other's agents, including, specifically, but not limited to, Allen F. Smoot,
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7373093
Allen F. Smoot and Associates, Mike Fontana, and Mike Fontana and
Associates, heirs, executors, administrators, trustees, predecessors, successors,
assigns, attorneys, officers, directors, shareholders, employees, investors,
stockholders, representatives, officials, agencies, departments, and
predecessors and successor corporations of and from any claims, duties,
demands, causes of action, defenses, obligations, performance bonds, liens,
damages, losses, costs, attorney's fees, and expenses of every kind and nature
whatsoever, known or unknown, or suspected, which either Party may have by
reason of any past act, cause or thing arising out of the Action and the Project.
(b) These releases are intended to be full and complete
releases of any and all claims that the Parties have regarding the Project and/or
the Action and, in executing this Agreement, the Parties are acting on behalf of
and with respect to all other persons who have now or may later acquire any
interest in the claims released herein including any successors, assigns,
dependents, heirs, trustees, executors and administrators of the Parties.
(c) The Parties agree and acknowledge that the City's release
does not extend to any claims and costs arising out of or related to any latent
defects and/or breaches of any express warranties addressing the quality or
nature of the work or services provided at, or in relation to, the Project that may
arise after the date of this Agreement. The Parties agree and acknowledge that,
as of the date that this Agreement is entered into, there are no such latent
defects and/or warranty issues known to the Parties.'
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737309.1
7. Waiver of Civil Code section 1542: Except where otherwise
expressly provided in this Agreement, the Parties hereby waive their rights under
the provisions of section 1542 of the California Civil Code, which reads as
follows:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his or her favor at the time of executing
the release, which if known by him or her must
have materially affected his or her settlement with
the debtor."
The Parties declare that they understand the full nature, extent and import of
section 1542 of the California Civil Code and have been so advised by their
attorneys.
8. Integration: The Parties are resolving the entire Action on the
terms, promises and representations that are contained in this written
Agreement. No other terms, promises or representations have been made to or
relied on by any of the Parties. This Agreement sets forth the entire agreement
between the Parties regarding the settlement of the entire Action.
9. Enforcement: The Parties each agree to bear their own costs,
expenses, and fees, including without limitation, attorney's fees, incurred in
connection with the Project, the Action, and this Agreement.
10, Knowinaly and Voluntarily: The Parties acknowledge that they fully
understand this Agreement, and that they have knowingly and voluntarily entered
into it with the advice of their own legal counsel.
11. Further Assurances and Cooperation: The Parties, without further
consideration, agree to execute and deliver such other documents and to take
6
737309.1
such other action necessary, convenient or desirable to effect the provisions of
this Agreement. The Parties hereby authorize and instruct their attorneys to
execute all documents necessary to resolve this matter and to give effect to this
Agreement, including, without limitation, the pleadings described in Section 3 of
this Agreement.
12. (a) Non-Admission of LiabiliLy gnd Confidentiality: The Parties
understand that this Agreement constitutes the considered compromise of
disputed claims, and that any payment pursuant to this Agreement shall not be
construed as an admission of liability on the part of any Party hereto. All liability
is expressly denied.
(b) The Parties acknowledge and agree that the contents of this
Agreement are confidential. No party nor attorney for the party, agent or
representative of a party, shall prepare, issue, distribute or disclose in any
manner to any other person or entity any information whatsoever relating to the
terms or contents of this Agreement except as such distribution or disclosure
may be required under the Public Records Act, or other pertinent statutory or
constitutional requirements. The confidentiality provision of this paragraph shall
not apply to (i) a general statement that the dispute between the parties has been
settled; (ii) disclosure pursuant to any court order or subpoena; or (ill) the extent
necessary to attorneys and accountants for legal or financial advice, preparation
of financial statements, income tax returns, responses to auditor's requests for
information, or as required for financial institutions.
7
737309.1
13. Authorization: Each individual who signs this Agreement on behalf
of another, including on behalf of any business entity, public entity, partnership or
corporation, warrants and represents that he or she has authority to enter into
this Agreement on behalf of the Party that the individual signs for; and that the
Party he or she signs for is bound by the terms of this Agreement.
14. Coun rts: This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one of the same document. Facsimile signatures are to
be deemed equivalent to original signatures.
15. Severabilit : If any part of provision of this Agreement, or the
application thereof to any person or circumstance, shall to any extent be invalid
or unenforceable, the remainder of this Agreement shall not be affected thereby,
and each term and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
16. Miscellaneous:
(a) The Parties acknowledge that this Agreement has resulted
from negotiations between the Parties. Therefore, the language of all parts of
this Agreement shall in all cases be construed as a whole, according to its fair
meaning, and not strictly for or against any of the Parties.
(b) The Parties hereto have participated in the drafting and
preparation of this Agreement and, therefore, in any construction to be made of
this Agreement the same shall not be construed against any of the Parties.
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737309.1
(c) The paragraph headings used in this Agreement are
intended solely for convenience and reference and shall not in any manner
amplify, limit, modify or otherwise be used in the interpretation of the provisions
hereof.
17. Each party represents and warrants that they are the sole owner of
all rights, title and interests in and to all of the claims settled under this
Agreement and that they have not heretofore assigned, transferred or purported
to assign and/or transfer to any person any claims, or portions thereof, settled
and released under this Agreement.
18. In the event legal action becomes necessary to interpret, enforce,
or seek remedies for a breach of any part of this Agreement, the prevailing Party
shall be entitled to reasonable costs and attorney's fees incurred in seeking such
enforcement or remedy.
19. This Agreement is entered into and shall be subject to the laws of
the State of California.
Dated: CITY OF PALM SPRINGS
By
David H. Ready,
City Manager
ATTEST:
B
James Thompson, City Clerk
9
737309.1
Q� APPROVED AS TO FORM:
DOUGLAS C. HAND City Attorne
By:
J eph W. Forba
A sistant City Attorney
Dated: WOV, 51 2t>10 PARSONS TRANSPORTATION GROUP,
INC.
By:
Title: L'� r
APPROVED AS TO FORM:
PALAFOX LAW CORPORATION
By:
MCA.A. Palafox
Dated: GENSLER ARCHITECTURE,
DESIGN & PLANNING WORLDWIDE
By:
Title:
APPROVED AS TO FORM:
COLLINS COLLINS MUIR + STEWART
By
Brian K. Stewart
Edward J. Riffle
10
737309.1
Dated: HARBOR CONSTRUCTION, INC.
By:
Title:
APPROVED AS TO FORM
J.W. BIEDEBACH &ASSOCIATES, INC.
By:
James W. Biedebach
11
737309.1
Dated: HARBOR CONSTRUCTION, INC.
°
B Title:
APPROVED AS TO FORM
J.W. BIEDEBACH &ASSOCIATES, INC.
By: r' /L . ' f %
James W. giedanwb
7y"e?�15.3