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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (“Agreement”) is entered into by and between Angotti & Reilly, Inc. (“A&R”) and the City of Richmond (“City”). A&R and the City are collectively referred to as “Parties” and individually as “Party.”
Recitals
A. WHEREAS, on May 16, 2022, A&R and the City entered into a Co nstruction Agreement (“Contract”) for the Booker T. Anderson Community Center Fire Damage Reconstruction Project in Richmond, California (“Project”).
B. WHEREAS, on or about August 19, 2022, the City Council voted to terminate the Contract based on the recommendation of the City’s staff.
C. WHEREAS, disputes have arisen between the Parties concerning the City’s termination of the Contract.
D. WHEREAS, on January 27, 2023, the Parties mediated their di spute before Bruce Edwards of JAMS, following which a mediator’s proposal was made by Mr. Edwards by letter dated February 2, 2023.
E. WHEREAS, on or about February 22, 2023, each Party accepted the mediator’s proposal.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties agree as follows:
1. Consideration. Within thirty (30) calendar days following full execution of this Agreement, the City will cause to be delivered to A&R a check payable to “Angotti & Reilly, Inc.” in the sum of Seventy-Five Thousand Dollars ($75,000.00) (“Settlement Payment”).
2. Rescission of Termination. At the earliest opportunity following full execution of this Agreement, but no later than sixty (60) calendar days following full execution of this Agreement, the City will rescind approval of the “Recommended Action” taken at the City Council meeting on August 19, 2022 terminating the Contract. Should any inquiry be made regarding termination of the Contract, the City shall inform the inquiring party that termination of the Contract was rescinded by the City.
3. Release by A&R. Once the funds representing the Settlement Payment have cleared the bank upon which such funds are drawn and the City has rescinded approval of the “Recommended Action” taken at the City Council meeting on August 19, 2022 terminating the Contract, A&R, on behalf of itself and its officers, directors, shareholders, employees, subsidiaries, affiliated companies, agents, representatives, attorneys and all persons acting by, through, under, or in concert with any of them, releases, waives, abandons, and forever discharges the City and its City Council, the City’s officers, employees, agents, representatives,
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attorneys and all persons acting by, through, under, or in concert with any of them from and against any and all actions, claims, grievances, liabilities, obligations, costs, fees, losses, debts, expenses, damages, causes of action, suits, rights, and demands of any nature whatsoever, whether known or unknown, suspected or unsuspected, or disclosed or undisclosed related to the Contract and the Project.
4. Release by City. Upon full execution of this Agreement, the City releases, waives, abandons, and forever discharges A&R and its officers, directors, shareholders, employees, subsidiaries, affiliated companies, agents, representatives, attorneys and all persons acting by, through, under, or in concert with any of them, from and against any and all actions, claims, grievances, liabilities, obligations, costs, fees, losses, debts, expenses, damages, causes of action, suits, rights, and demands of any nature whatsoever, whether known or unknown, suspected or unsuspected, or disclosed or undisclosed related to the Contract and the Project.
5. Waiver. Each Party, on behalf of themselves and their officers, directors, shareholders, employees, subsidiaries, affiliated companies, agents, representatives, attorneys and all persons acting by, through, under, or in concert with any of them, waive any and all rights they may have against the other Party under Civil Code section 1542, which provides 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.
Each Party, on behalf of themselves and their officers, direct ors, shareholders, employees, subsidiaries, affiliated companies, agents, representatives, attorneys and all persons acting by, through, under, or in concert with any of them, further waive any and all rights they may have against the other Party under any similar law of any state or territory of the United States.
6. No Admission. This Agreement is a compromise of disputed claims, and neither the execution and delivery of this Agreement, nor the performance of any obligations thereunder, shall be construed as an admission of liability on the part of any of the Parties.
7. Costs and Fees. The Parties shall bear their own attorneys’ fees and other costs incurred prior to the execution of this Agreement.
8. Representation by Counsel. The Parties represent that they have been represented by independent counsel, that the terms and conditions of this Agreement have been explained to them by their counsel, and that those terms and conditions are understood and voluntarily accepted by them.
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9. Authority. The Parties represent that they are authorized to enter into this Agreement and that the persons executing this Agreement on their behalf have the authority and capacity to do so.
10. Construction. This Agreement shall not be construed against any of the Parties and the rule of construing contract ambiguities against the party drafting the contract shall be inapplicable.
11. Effect of Headings. The headings used in this Agreement are for convenience only and shall not affect the construction or interpretation this Agreement.
12. Word Usage. Unless the context clearly requires otherwise, plural and singular numbers will be considered to include the other; the masculine, feminine, and neuter genders will each be considered to include the others; “shall,” “will,” “must,” “agree,” and “covenants” are each mandatory; “may” is permissive; “or” is not exclusive; and “includes” and “including” are not limiting.
13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter herein, supersedes all prior or contemporaneous oral or written agreements between the Parties concerning the disputed claims being resolved in this Agreement, and may only be amended by an instrument in writing executed by the Parties.
14. Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties.
15. Counterparts. This Agreement may be executed in counterparts, a facsimile of which shall be deemed an original, and all of which shall together be deemed one and the same instrument.
16. Attorneys’ Fees. In the event any legal action is brought which arises out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs incurred in such legal action, in addition to any other relief to which it may be entitled.
17. Governing Law and Venue. This Agreement shall be construed under, and governed by, the laws of the State of California.
18. Severability. If any provision of this Agreement is held to be invalid or unenforceable, such invalid or unenforceable provision(s) shall not affect the validity or enforceability of any other provision of this Agreement.
19. Time of Essence. Time is of the essence under this Agreement.
20. Cooperation. The parties shall cooperate and execute any additional documents reasonably necessary to give full force and effect to this Agreement.
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IN WITNESS WHEREOF, the parties to this Agreement have duly executed it on the day and year set forth below.
Dated: March , 2023 ANGOTTI & REILLY, INC.
By:
Print Name
Its:
Dated: March , 2023 CITY OF RICHMOND
By:
Eduardo Martinez, Mayor
ATTEST:
_____________________________
Pamela Christina, City Clerk
Approved as to Form:
ALESHIRE & WYNDER, LLP NOMOS LLP
By: By:
David J. Aleshire, City Attorney
CITY OF RICHMOND
Garret D. Murai
Attorney for
ANGOTTI & REILLY, INC.