SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT ("Agreement"), dated as of June 8, 2009, is made
and entered into by and between the LAFAYETTE REDEVELOPMENT AGENCY, a public
body corporate and politic ("Agency"), and KILLEFER FLAMMANG ARCHITECTS, INC., a
California corporation ("KFA") (collectively, the "parties" and, individually, each a "party"), in
light of the following recitals:
RECITALS
A.
The Agency and KFA entered into a contract for architectural services on the
Library and Learning Center Project (the "Project"), on March 25, 2003 (the "Original
Contract").
B.
Although the Original Contract anticipated the Project would be completed on
January 4, 2009, as a result of various circumstances, the estimated construction completion date
has been extended to November 12, 2009 ("Revised Completion Date").
C.
KFA has requested compensation from the Agency for its work from January 1,
2009 to continue furnishing construction administration and support services for the Project
through construction completion as generally specified in the Original Contract, and the KFA
proposal dated January 29, 2009, and the KFA letter requesting additional fee dated May 39,
2009.
D.
While the Agency wishes to have KFA's services through construction
completion of the Project, the parties dispute the appropriate amount of KFA' s compensation,
and their liabilities to one another in connection therewith.
NOW, THEREFORE, in consideration of the above facts, and the promises and
covenants contained below, the parties hereto agree as follows:
AGREEMENT
1.
Incorporation of Recitals. The recitals set forth above, including the defined terms, are
true and correct and incorporated in this Agreement as if restated in full.
2.
Contract Documents to Remain in Full Force and Effect. Except as modified by this
Agreement with respect to payments owed to KFA by Agency, the following documents shall
remain in full force and effect: the Original Contract, as amended by KFA proposal dated
January 29, 2007, and accepted by the Agency February 13, 2007; the Project plans, dated
December 11, 2006; and KFA's bid documents, dated December, 2006 (collectively, the
"Contract Documents").
3.
Payment by Agency. In exchange for KFA's continued construction administration and
support services through the construction completion of the Project in accordance with the
Contract
Documents and the Revised Completion Date, the Agency agrees to pay KFA
$262,500.00, paid as follows: (1) Agency shall pay KFA $125,000.00 within five (5) days of
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KFA's execution of this Agreement to fully compensate KFA for its work and services on the
Project from January 1, 2009 through May 31, 2009 ("First Payment"); (2) Agency shall
thereafter pay KFA $25,000.00 per month to fully compensate KFA for its work and services on
the Project for the months of June through October; and (3) Agency shall pay KFA $12,500.00 to
fully compensate KFA for its work and services on the Project for the partial month of
November (payment for June through November are collectively referred to as the "Additional
Payments"). These payments are in addition to KFA's entitled compensation under the Contract
Documents. Except for the First Payment which shall be paid as set forth above, all Additional
Payments shall be made and documented in accordance with the payment procedures set forth in
Exhibit
B, Paragraph
5
the Original
Contract.
KFA shall receive no other additional
compensation should the Project construction completion date extend beyond the Revised
Completion Date.
4.
KFA Release of Agency. Except as to the obligations created by this Agreement, KFA,
its assigns and successors and all persons acting by, through, or under it, hereby forever release,
acquit and discharge Agency, its officers, directors, employees, agents, representatives, assigns
and all other persons acting by, through, or under it, of and from any and all claims, debts, costs,
expenses, damages, injuries, liabilities, demands, losses and causes of action of every kind,
nature, and description, known or unknown, fixed or contingent, in law or in equity, for any
matter which was alleged or could have been alleged by KFA arising from or related to the
Project, including, without limitation, those based on the Contract Documents.
5.
Civil Code Section 1542. KFA acknowledges that it has been advised by its attorneys
concerning, and is familiar with the provisions of California Civil Code Section 1542, 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.
KFA recognizes that it may have sustained claims, debts, costs, expenses, damages,
injuries, liabilities, demands, losses or causes of action in connection with the matters herein
released that are presently unknown or unexpected, and that claims, debts, costs, expenses,
damages, injuries, liabilities, demands, losses or causes of action may give rise to additional
claims, debts, costs, expenses, damages, injuries, liabilities, demands, losses or causes of action
in the future. KFA acknowledges that this Agreement has been made with knowledge that such
additional claims, debts, costs, expenses, damages, injuries, liabilities, demands, and causes of
action damages may exist, and hereby waives any and all rights it may have under Section 1542,
or under any other state or federal statute or case authority of similar effect.
6.
Agency Reservation of Rights. Nothing in this Agreement shall be construed as a release
of any claims, debts, costs, expenses, damages, injuries, liabilities, demands, losses or causes of
action that the Agency may have against KFA at this time or in the future, arising from or related
to the Project, or the Contract Documents. The Agency expressly reserves the right to pursue
any and all claims arising from or related to the Project, including, without limitation, those
based on the Contract Documents.
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7.
No Admission of Liability. This Agreement is made in connection with the compromise
of disputed claims. Neither this Agreement nor any action taken pursuant to it constitutes an
admission by any party to another.
8.
Joint Preparation. 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 party. No
presumptions or rules of interpretation based upon the identity of the party preparing or drafting
the Agreement, or any part thereof, shall be applicable or invoked.
9.
Integrated Agreement. The parties represent that they have not relied on any promise,
inducement, representation or other statement made in connection with this Agreement that is not
expressly contained in the Agreement. This is a fully integrated Agreement, contains the entire
agreement between the parties concerning the matters described herein and supersedes any and
all other agreements, contracts, covenants, resolutions or other arrangements with respect to the
subject matter hereof.
10.
Successors. This Agreement shall be binding on, and shall inure to the benefit of, all
parties to it or who are benefited by it, and their parent corporations, affiliates, employees,
agents, attorneys, representatives, predecessors, successors, assigns and partners, past, present
and future.
11.
No Oral Modification. This Agreement cannot be altered, amended, or modified in any
respect, except by a writing duly executed by the parties.
12.
California Law Applies. This Agreement shall be construed under and interpreted in
accordance with the laws of the State of California. Venue shall be in Contra Costa County.
13.
Attorneyst Fees. If any action, at law or in equity, including an action for declaratory
relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party
shall be entitled to payment of its costs and expenses, including attorneys' fees, in addition to any
other relief to which it may be entitled.
14.
Advice of Attorneys. The parties acknowledge that they make this Agreement upon the
advice of their respective attorneys, that they have read this Agreement, and that they have
discussed it with their attorneys.
15.
Counterparts. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and any of the parties hereto
may execute this Agreement by signing any such counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
opposite their respective signatures.
Dated:
_______,
2009
KILLEFER FLAMMANG ARCHITECTS, INC.
By:
Printed Name: Barbara Flammang
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Title:
President
Dated:
_________,
2009
Dated: June 8, 2009
Dated: June 8, 2009
KILLEFER FLAMMANG ARCHITECTS, INC.
By:
Printed Name: Wade Killefer
Title:
President
LAFAYETTE REDEVELOPMENT AGENCY
By:
________
Printed Name: Don Tatzin
Title:
Chair
ATTEST:
By:
___________
Printed Name: Joanne Robbins
Title:
Board Secretary
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