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SETTLEMENT AGREEMENT AND RELEASEThis SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is entered into by and between the District of Columbia, a municipal corporation, D.C. Housing Enterprises, a District of Columbia nonprofit corporation, and the D.C. Housing Authority (collectively, "the District"); (2) Banneker Ventures, LLC, a limited liability company organized under the laws of the District of Columbia ("Banneker"), and (3) Regan Associates, LLC, a limited liability company organized under the laws of the Commonwealth of Virginia ("Regan"). The District, Banneker, and Regan are collectively known as "the Parties." This Agreement shall be effective on the date of its execution by the District of Columbia ("Effective Date."). WITNESSETH, WHEREAS, on July 14, 2009, and amended on December 9, 2009, the District awarded to Banneker, Contract Number 2009-05 for project management services for capital projects, effect as of May 1, 2009 ("the Contract"). By letter dated November 20, 2009, the District notified Banneker that by November 30, 2009, Banneker shall stop all work under the Contract. By Section 5 of the Contracts for Project Management and General Contractor Services for the Revitalization of District Recreation Centers, Schools and Public Parks Approval and Payment Authorization Emergency Act of 2009, Act No. A18-0258, enacted on January 4, 2010, the Council of the District of Columbia disapproved the Contract. WHEREAS, by letter dated March 11, 2010, Banneker submitted to the District a claim for Contract close-out costs and for intellectual property rights to architect and engineering designs in the total amount of $2,269,140 ("Claim") and requested a contracting officer's final decision. WHEREAS, the Parties have determined that settlement of the claim is in the mutual best interests and the parties have negotiated the terms of this settlement to include all disputes and potential litigation arising under or related to the Contract. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration as hereinafter recited, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree fully and finally, with the intent to be legally bound, to settle the Claim and to completely dispose of all existing or potential issues, claims, grievances, and disputes, arising under or related to the Contract, as follows: 1. The District agrees to pay Banneker the total amount of Five Hundred and Fifty Thousand Dollars and No Centers ($550,000.00) in full satisfaction of the Claim and all other claims, interest, attorneys' fees, costs and expenses incurred in connection with, arising under, or relating to the provision by Banneker of services arising under or related to the Contract ("Settlement Amount"). The District shall, subject to an appropriation and cash available, process and issue two (2) checks made payable to Banneker Ventures, LLC, in the respective amounts of Two Hundred Sixty-Four Thousand Eight Hundred Sixty-Three Dollars and Twenty-One Cents ($2664,863.21) and Two Hundred Eighty-Five Thousand One Hundred Thirty-Six Dollars and Seventy-Nine Centers ($285,136.79). A. The District will issue the first check, for $264,863.21, within 10 business days of Banneker's and Regan's execution of this Agreement. B. Banneker agrees that it shall pay all architects, engineers, consultants (including Regan), and subcontractors (collectively "Service Providers"), who are identified on Attachment A to this Agreement, and Banneker shall obtain full and final lien releases from each of these Service Providers. No further release will be required from Regan as it is a signatory to this Agreement. C. Banneker agrees that after payment to the Service Providers, Banneker shall secure from the Service Providers lien releases, and Banneker shall furnish to the District copies of the releases within 30 days of the receipt of the first check. 2. Banneker agrees and acknowledges that, through the Effective Date, it does not owe anything to the Service Providers who are identified on Attachment B to this Agreement for any services rendered or materials or supplies provided, as may be related to the Congract. 3. Banneker agrees and acknowledges that the District owns the drawings, specifications and other documents, prepared by the architects and engineers retained by Banneker to manage the projects contemplated by the Contract and hereby covenants not to sue the architects and engineers over the intellectual property rights underlying such contracts. Upon execution of this Agreement, Banneker shall issue to the applicable Service Providers letters recinding the cease and desist letters issues by Banneker dated February 25, 2010. 4. Banneker agrees and acknowledges that it is solely responsible for any further taxes owed, if any, on the payments made payable to it under this Agreement by any taxing authority, whether federal, state or local. Banneker agrees to defend and to indemnify against all losses and liabilities of the District with respect to any liability to any taxing authority, whether federal, state or local, arising from payments contemplated by this Agreement. Banneker acknowledges and understands that the District will report to the U.S. Internal Revenue Service the payments set forth in this Agreement. Banneker shall promptly provide to the District a proper form W-4 and within three (3) business days of Banneker's receipt of the first check. 5. The payments made in accordance with this Agreement shall, together, constitute full and complete compensation in settlement and satisfaction of the Claim and all agreements, actions, cases, causes of action, claims, compromises, controversies, costs, damages, debts, demands, disputes, expenses, judgments, liabilities, payments, promises, and suits of any nature whatsoever, including attorneys' fees, whether or not known, by any Party against the other Party, in connection with, arising under, or relating to Banneker or Regan's provision, under the Contract, of project management services for capital projects and other services to the District, except for amounts Banneker owes to Regan under this Agreement and any amounts the District may owe Regan or Banneker for services provided on other, unrelated contracts. 6. In consideration of the premises of this Agreement, and upon receipt of both the payments required by paragraph 1, above, Banneker and Regan, and each of their successors and assigns, administrators, executors, and any other person claiming by, through, or under Banneker or Regan, hereby remise, release, and forever discharge the District and its agencies, their officers, directors, commissioners, agents, servants and employees, their past and present members and employees of and from all agreements, actions, cases, causes of action, claims, compromises, controversies, costs, damages, debts, demands, disputes, expenses, judgments, liabilities, payments, promises, and suits of any nature whatsoever, including attorneys' fees, whether or not known, relating to, arising under, or in connection with Banneker's or Regan's provision to the District of project management services for capital projects under the Contract, WITHOUT EXCEPTION, through the Effective Date, the intention hereof being to release the District, its present and former officers, directors, commissioners, agents, servants or employees, completely finally and absolutely from all liabilities, whatsoever, arising wholly or partially from Banneker or Regan's provision under the Contracts of project management services for capital projects and other services to the District or from the District's administration of the Contract. 7. In consideration of the premises of this Agreement, and upon Banneker's compliance with conditions B and C, as required by paragraph 1, above, the District hereby remises, releases and forever discharges Banneker and Regan, each of their successors and assigns, administrators, executors, and any other person claiming by, through, or under Banneker or Regan, of and from all agreements, actions, cases, causes of action, claims, compromises, controversies, costs, damages, debts, demands, disputes, expenses, judgments, liabilities, payments, promises, and suits of any nature whatsoever, including attorneys' fees, whether or not known, relating to, arising under, or in connection with Banneker's or Regan's provision, under the Contract, WITHOUT EXCEPTION, for project management services for capital projects to the District or from the District's administration of the Contract through the Effective Date, the intention hereof being to release Banneker and Regan completely, finally and absolutely from all liabilities, arising wholly or partially from Banneker's or Regan's provision, under the Contract, of project management services for capital projects and other services to the District or from the District's administration of the Contract. 8. In consideration of the premises of this Agreement, and upon receipt by Banneker of both the payments required by paragraph 1 above, Banneker, its successors and assigns hereby indemnify against all losses and liabilities the District and its agencies, their respective officers, agents, servants, employees, successors and assigns, from any and all further claims for damages, costs, attorneys' fees and expenses relating to, arising under, or in connection with the provision by Banneker of project management services for capital projects and other services to the District and the District's administration of the Contract, including any monetary claims or actions arising from disputes related to the contract regarding intellectual property or liens filed by the Service Providers. 9. The making of this settlement Agreement is not intended, and shall not be construed, as an admission that hte District, its agencies, and/or employees have violated any federal, state or local law (statutory or decisional), ordinance or regulation, or broached any contract. The Parties further agree that this Agreement is not intended, and shall not be construed, as an admission that Banneker, Regan, or their agents, and/or employees have violated any federal, state or local law (statutory or decisional), ordinance, or regulation, committed any of the allegations made against it, breached the Contract, or failed to fulfill any Contract obligation. The Parties further understand and agree that, upon performance of this Agreement, no part Party [sic] will be considered a "prevailing party" for any reason, including but not limited to, an award of attorneys' fees or costs under any statute or otherwise. 10. The Parties understand and agree that neither this Agreement nor any payments hereunder shall be subject to assignment. 11. This Agreement is the entire settlement agreement and release of the Parties, Banneker and Regan acknowledge and agree that neither the District nor any District agency, nor any representative, agent or employee of the District, made any representation or promise to it other than to set forth herein. No other promises or agreements shall be binding unless in writing and signed by the Parties. The Parties agree that, in the event of a breach of this Agreement, the non-breaching Party may seek enforcement of this Agreement but shall not be entitled to reopen or again assert the Claim. 12. This Agreement shall be interpreted in accordance with the laws of the District of Columbia and shall not be construed against either Party as the drafter. In any action arising under, in connection with or relating to this Agreement, the parties shall be subject to the jurisdiction of the Contract Appeals Board of the District of Columbia. 13. The Parties to this Agreement expressly represent and warrant that they are legally competent to execute this Agreement, that they have been fully informed and have had an opportunity to consult counsel concerning the contents and meaning of this Agreement. The District and Banneker further represent and warrant that they will take any necessary steps to obtain the requisite approvals to consummate the payment set forth in this Agreement. 14. The Parties shall execute this Agreement in two (3) [sic] identical writings, which writings taken together shall constitute one written agreement by and between the Parties. IN WITNESS WHEREOF, the Parties, by and through their duly authorized representatives, have executed this SETTLEMENT AGREEMENT AND RELEASE on the dates following their respective signatures. SIGNATURES: The District of Columbia D.C. Housing Authority D.C. Housing Enterprises Banneker Ventures, LLC Regan Associates, LLC Attachment A
Attachment B ABC Imaging |
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