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Home My WebLink AboutC-4430 - Settlement Agreement and Release4430 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (hereinafter the "Agreement ") is entered by and between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City ( "City") and WRC CONSULTING, INC., a California Corporation ( "WRC ") (collectively referred to as the "Parties ") with reference to the following facts: Recitals A. The City and WRC are parties to that certain lawsuit known as WRC Consulting Services, Inc. vs. City of Newaort Beach, et al., Orange County Superior Court Case No. 30- 2008-00115375 (the "Action "). The Action arose out of a professional service agreement between the City and WRC (the "Consulting Agreement"). B. By this Agreement, City and WRC intend and desire to avoid the expense and uncertainty of litigation relating to WRC's claims and to settle all claims arising from the Action. C. The Parties acknowledge that City had paid WRC for the work performed and that WRC did not abandon the work or the Consulting Agreement. Terms of Settlement NOW THEREFORE, in consideration of the mutual covenants set forth herein, the Parties agree as follows: 1. Obligations of City. Within fourteen (14) calendar days after execution of this Agreement by all parties, City shall pay a total of $50,000 to WRC by a check made payable to "WRC Consulting, Inc." and delivered to WRC's counsel of record. This sum constitutes payment in full for all claims by WRC arising out of the Action. 2. Obligations of WRC. Upon receipt of the payment referenced in Section 1 of this Agreement, WRC shall immediately file a dismissal of the entire Action, with prejudice. 3. No Admission of Fault. This Agreement is a compromise and settlement of disputed claims. Nothing in this Agreement shall be interpreted, used, or construed as an admission of fault or wrongful conduct of any kind by any of the Parties. 4. Reputation Covenant. City and WRC agree that each, acting through its officers, principals, managers and attorneys, will not to engage in or make any negative or disparaging remark about the other party, its services or activities, its officers, directors, shareholders, or principals, and agree that 290,066751-0069 1051960.01 al 1/29)09 either party will not knowingly or intentionally engage in any statement or representation that is intended to or is likely to be damaging to the other party's reputation. The parties also agree that the City, upon receipt of inquiry as to the result of the Consulting Agreement shall, and otherwise either party may, make or release the following statement: "The City of Newport Beach, by written contract, engaged WRC Consulting Services, Inc., to provide certain services in conjunction with restoration work in the Back Bay area of the City. The City subsequently cancelled the contract, under a not for cause provision of the contract. WRC had fully and satisfactorily performed all services required of it, as of then, and WRC was compensated by the City for its services." Each party agrees that it will not alter, modify, subtract from or add to the language or text of the foregoing statement. 5. Release. (a) In consideration for the agreements as set forth herein, the Parties, and each of them , on behalf of themselves, and their heirs, officers, directors, successors, assigns, shareholders, owners, insurers, lenders, lien holders, attorneys, agents, councilmembers, mayors, officials, boards, commissions, managers, and other representatives do hereby release the one another , and their heirs, officers, directors, successors, assigns, shareholders, owners, insurers, lenders, lien holders, councilmembers, mayors, officials, boards, commissions, managers, employees, attorneys, insurance companies, agents, and other representatives, from any and all claims, actions and causes of action, obligations, liabilities, indebtedness, breaches of duty, claims for injunctive and other equitable relief, suits, liens, losses, costs or expenses, including attorneys' fees, of any nature whatsoever, known or unknown, fixed or contingent, arising out of, based upon or relating to the allegations set forth in the Action. (b) Waiver of Civil Code Section 1542: By releasing and forever discharging claims both known and unknown as above provided, the Parties, and each of them, expressly waives any rights under California Civil Code section 1542, which provides: "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 SETTLEMENT WITH THE DEBTOR" The Parties, and each of them, waive and relinquish any rights and benefits which it has or may have under section 1542 of the Civil Code of the State of California. The Parties, and each of them, have performed a full and complete investigation of the facts pertaining to the settlement. Nevertheless, the Parties, and each of them, acknowledge that they are each aware that they may hereafter discover facts in addition to or different from those which they now know or believe to be true with respect to the subject matter of this Agreement, but it is the intention of each Party hereby to fully and finally forever settle and release any and all matters, disputes and differences, known or unknown, suspected and unsuspected, which now exist, may 2901066751-0039 1051960.01 al l29109 -2- exist or heretofore have existed, as against the other party , arising out of the Action and, in furtherance of this intention, the release herein given shall be and remain in effect as a full and complete general release notwithstanding discovery or existence of any such additional or different facts. 6. Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes any and all prior agreements or understandings, if any, between them pertaining to the subject matter hereof, and shall not be modified or altered except by a subsequent written agreement signed by the parties. This Agreement shall be binding upon and inure to the benefit of the Parties, their respective representatives, shareholders, officers, directors, employees, affiliates, successors, heirs and assigns. 7. Warranty. The Parties hereby expressly warrant and represent that they have not transferred or assigned or attempted to transfer or assign any of the claims released hereunder. The persons signing this Agreement hereby warrant that they have the power and authority to bind any party on whose behalf this Agreement is signed. 8. Controlling Law. This Agreement shall be interpreted and construed in accordance with the law of the State of California. 9. Attorneys' Fees and Costs. The Parties shall bear all of their own respective costs and attorneys' fees incurred relating to the Action. 10. Severability If any provision and/or part of this Agreement is held, determined, or adjudicated to be invalid, unenforceable or void for any reason, each such provision shall be severed from the remaining provisions of the Agreement and shall not affect the validity and enforceability of such remaining provisions. 11. Counterparts. This Agreement may be executed in counterparts and by facsimile or other electronic delivery. 12. Review of Agreement. The Parties each acknowledge and represent that they have read this Agreement, have had the opportunity to consult with their respective attorneys concerning its contents and consequences, that the Agreement is being executed solely in reliance on their respective 290/066751 -0089 1051960.01 a] 129/09 -3- judgment, belief and knowledge of the matters set forth herein and on the advice of their respective attorneys. 13. Neutral Interpretation. The Parties agree that all parts of this Agreement shall in all cases be construed as a whole according to their fair meaning and shall not be construed strictly for or against any party hereto. 14. Modification. This Agreement shall not be modified, amended or supplemented unless such modifications, amendments or supplements are in writing and signed by each party to this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the date set forth below. Date: "2'13 , 2009 Date: 12009 , 2009 Date: J a , 2009 Date: l v , 2009 CITY OF NEWPORT BEACH By: ^� ( A Its: UCit�, WRC CONSULTING, INC. By: Its: 7ATTEST:�(�7� VVV"' City Cler / 290/066751-0089 1051960.01 al 1/29/09 -4- APPROVED AS TO FORM By: Its: City 11/23/2009 17:01 FAX 1 849860 9144 6TSA6R&S & esaoa, @009101t 13. Neutrallnterpretatiom The Parties agree that all parts of this Agreement dial! in all cases be vowed as a whole according to then bir weatftg and shall not be cons bued sWcdy for or agahmt any, paW hereto. 14 MoMeetian. This Agreement shall not be modified, amended or mpplamained udess m& modifications,•ameadmoats or saWle ts'am m writing and Signed by each party to this Agreemad. IN WITNESS WHEREOF, the parties have M=ted this Agreement on the date set *A below. Dam. .2009 MY OF NEWPORT BEACH Data, i — 2 3 2009 WRC CONSULTINCl INC. Its: AT•FEST! Date. 2009 City Cleric Date: 2009 APPROVM) AS TO FORM By: Its: City AAmney 29MOrs,.aam IQjImvl txvnm -4- MAO 3Btld x94 6601b996061 TOM 69BUSZ /11