Settlement agreement and release between PB, Facchina, Balter and county

SETTLEMENT AND RELEASE AGREEMENT BETWEEN
MONTGOMERY COUNTY MARYLAND
AND PARSONS BRINCKERHOFF, INC.-,
THE ROBERT B. BALTER COMPANY
AND FACCHINA CONSTRUCTION COMPANY

This Settlement and Release Agreement ("Agreement") is entered into by and among (A)
Montgomery County, Maryland ("County"), and (B) Parsons Brinckerhoff, Inc. (ii)
The Robert B. Balter Company ("Balter"), and Facchina Construction Company
(together referred to as the ?Defendants") (the County and Defendants together referred to as the

?Parties?).

WHEREAS, PB entered into contracts with the County for professional engineering design and
contract administration services for construction of the Silver Spring Transit Center

("Design Contracts");

WHEREAS, PB entered into a contract with the County to provide an on-site engineer for the
SSTC (the ?On Site Project Engineer Contract?). The Design Contract and On Site Project

Engineer Contract shall be collectively referred to as the Agreements;?

WHEREAS, the County entered into a contract with Foulger-Pratt Contracting, LLC for
the construction of the SSTC ("Construction Contract?);

WHEREAS, Balter entered into contracts with the County for special inspection 011 the

SSTC ("Inspection Contracts?);

WHEREAS, FPC entered into a subcontract with FCC to perform the concrete work 011 the
SSTC ("Concrete Subcontract");

WHEREAS, the County alleged that certain portions of the design, inspection, and construction
of the SSTC were defective and that the defective work caused damages to the County;

WHEREAS, PB and FCC have alleged that they are entitled to damages from the County;

WHEREAS, the County and the Washington Metropolitan Area Transit Authority
?led Civil Action 408239 in the Circuit Court for Montgomery County, Maryland

against Defendants seeking damages for the alleged defective design, inspection, and

construction work on the SSTC, and certain Defendants and FPC ?led counterclaimS, CTOSS

claims, and third party claims; -
WHEREAS, litigation commenced in the Action but has not been completed;

WHEREAS, Defendants (except Balter) and FPC entered into a settlement with WMATA, WhiCh
agreement is not affected by this Agreement;

WHEREAS, the County denies any-liability to the Defendants and
WHEREAS, the Defendants deny liability to the County, WMATA or other Defendants;

WHEREAS, the County and FPC have entered into a settlement agreement with respect to the

. Action to avoid litigation and without admitting liability;

WHEREAS, the Parties have entered into this settlement to avoid continuing litigation and

without admitting liability and wish to memorialize their agreement herein;

NOW THEREFORE, in consideration of the Recitals, the mutual promises made herein, and
other good and valuable consideration, the receipt and suf?ciency of which is hereby

acknowledged, the Parties hereby agree as follows:
1. The above Recitals are incorporated as if fully set out herein.

2. Defendants shall pay to the County the total sum of TWENTY-FIVE MILLION
DOLLARS AND NO CENTS ($25 ,000,000.00) (the ?Settlement Amount?). Payment shall be
made within twenty (20) days of execution of this Agreement.

3. Upon receipt of the Settlement Amount and dismissal of the claims in the Action
pursuant to paragraph 6, and except as stated otherwise in this Agreement, the County releases
and discharges the Defendants and their subcontractors, subconsultants, and suppliers, af?liated,
predecessor, and successor entities, and their authorized representatives, authorized agents,
of?cers, employees, principals, directors, board or committee members, trustees, attorneys,

sureties, co-sureties, insurers, successors, assigns or af?liated companies, from any and all

- claims, including indemnity and negligence claims, debts, liabilities, obligations and causes of

action, appeals, suits, claims for contribution, interest and demands of any kind whatsoever, in
law or equity, contingent or matured, known or unknown, now or in the future, and Whether
Within the contemplation of the Parties or not, arising from or related to the design, inspection,
and/or construction of the SSTC, including but not limited to claims that were or could have

been asserted in this Action, but excluding claims for breach of this Agreement.

Upon dismissal of the claims in the Action pursuant to paragraph 6, and except as stated
otherwise in this Agreement, the Defendants release and discharge the County and its af?liated,
predecessor, and successor entities, and their authorized representatives, authorized agents,
officers, employees, principals, directors, board or committee members, trustees, attorneys,
sureties, co-sureties, insurers, successors, assigns or af?liated companies, from any and all
claims, including indemnity and negligence claims, debts, liabilities, obligations and causes of
action, appeals, suits, claims for contribution, interest and demands of any kind whatsoever, in
law or equity, contingent or matured, known or unknown, now or in the future, and Whether
within the contemplation of the Parties or not, arising from or related to the design, inspection,
and construction of SSTC, including but not limited to, claims that were or could have been

asserted in the Action, but excluding claims for breach of this Agreement.

5. The releases in paragraphs 3 and 4, above, do not apply to third party claims for personal
injury and property damage or to the enforcement of the separate agreement entered into this
date between the County and FPO relating to amounts to be paid by the County to FPC under the
Construction Contract. FCC and its insurers and surety do not release FCC's subcontractors,
suppliers, and designers. Nothing in this agreement waives or impairs FCC's subrogation rights

or those of its insurers against CC's subcontractors, suppliers, or design professionals.

6. Upon execution of the Settlement Agreement, the Parties will request that the Court
dismiss the jury and hold the Action in abeyance until full payment is made by Defendants of the
Settlement Amount. The Court will have the power and right to enforce the Settlement
Agreement as part of the Action. The Defendants shall provide the Court with a list of the
payments to be made by each Defendant to the County (the ?Contribution List?) and the Court
will hold the Contribution List under seal until the payments are made by all Defendants. Each

Defendant warrants and represents that it presently has and will have, until payment is

effectuated in accordance with the terms of this Agreement, the ability to pay its portion of the

- Settlement Amount. If a Defendant fails to pay the amount due, as set forth in the Contribution
List, the Court may enter judgment against that Defendant in the amount that Defendant failed to
pay and may enforce that judgment. UpOn receipt of the Settlement Amount, the County and
Defendants shall immediately take the steps to dismiss with prejudice all claims, counterclaims,
and cross claims ?led in the Action. The interpretation and enforcement of this Agreement shall
be in the Circuit Court of Montgomery County, Maryland. The prevailing party in any litigation
regarding the enforcement of this Agreement is entitled to recover reasonable attorneys' fees and

costs from the breaching party.

7. The Parties agree that if the County or a Defendant sues a third party regarding the
design, construction, or inspection of the SSTC and that palty sues or impleads the County or
one or more of the Defendants; the County or such Defendant will defend and indemnify the

Party that was sued or impleaded for all claims and damages, including attorneys' fees and costs

incurred as a result of that litigation.

8. All claims resolved under this Agreement are disputed and by resolving them the Parties
are merely compromising those claims in order to end the continuing litigation and its cost. This

Agreement shall not constitute an admission of wrongdoing by any of the Parties.

9. The Parties agree that each Party shall be responsible for its own respective costs, fees,
and expenses, including any attorney's fees incurred in connection with the respective contracts,

the Action, or any matter covered by this Agreement, except as provided in Paragraph 6 hereof.

10. This Agreement is intended to confer rights and bene?ts only on the signatories hereto,
and the Parties speci?cally released under paragraphs 3 and 4 above and is not intended to confer
any rights or bene?ts upon any other entity or persOn. No entity or person other than the .
signatories hereto or their successors or the parties speci?cally released under paragraphs 3 and 4

above shall have any legally enforceable rights under this Agreement.

11. The Parties to this Agreement hereby agree not to directly or indirectly, in any capacity or
manner, make, express, transmit speak, write, verbalize or otherwise communicate in any way

(or cause, further, assist, solicit, encourage, support or participate. in any of the foregoing), any

remark, comment, message, information, declaration, communication or other statement of any
kind, whether verbal, in writing, electronically transferred or otherwise, that might reasonably be
construed to be derogatory or critical of, or negative toward any other Party to this Agreement in
connection with their performance on the SSTC. For purposes of this paragraph no. 11, the
?County? shall mean all portions of the Montgomery County government under the control of
the County Executive. The Parties shall further provide as a joint public statement the following:
?We are pleased to have reached anamicable resolution of the lawsuit, which allows all parties
to move forward without further litigation and related costs.? The County agrees not to
terminate for default or otherwise modify any Defendant?s existing contract withthe County or
preclude a Defendant from pursuing future contracts with the County as a result of the Party's
performance on the SSTC. The Parties acknowledge their agreement to the provisions in this

paragraph is material to this Agreement.

12. The Defendants acknowledge the County is subject to the terms of the Maryland Public
Information Act as codi?ed in Title 4 of the General Provisions Article of the
Annotated Code of the State of Maryland.

13. The individuals signing this Agreement represent and warrant that they have full and
complete authority and authorization to execute and affect this Agreement and to take or cause to

be taken all acts contemplated by this Agreement.

14. If any term or other provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced by any rule or law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions contemplated

hereby is not affected in any manner materially adverse to any Party.

15. This Agreement constitutes the entire agreement between the Parties and supersedes any
and all prior or contemporaneous agreements or representations, written or oral, between the
Parties conceming the subject matter of this Agreement. This Agreement may not be modi?ed
or amended except in writing and signed by a duly authorized representative of each Party; no

other act, document, usage, or custom shall be deemed to amend or modify this Agreement.

16. When executed and delivered in counterparts, the Agreement shall be deemed an original,
and such counterparts together shall constitute one and the same instrument. For the purposes
hereof, any scanned PDF copy of this Agreement including the signature pages bearing the
signature of each of the Parties shall be deemed an original.

17. This Agreement shall be governed by and interpreted in accordance with Maryland law,
excluding choice of law provisions. Any dispute arising under or relating to this Agreement

shall be brought in the Circuit Court of Maryland for Montgomery County.

IN WITNESS WHEREOF, intending to be legally bound hereby, the Parties hereto, by their duly

authorized representatives, have executed this Agreement as of the date set forth below.

Date:

Date

{be/20:7

oxen/tow??

Date:

Date:

Date:

4,1044? L. {imam
Timothy L. Firestinb, Chief Administrative Of?cer for
Montgomery County, Maryland

Approved as to form and legality by the Of?ce of the
County Attorney:

John?PT Markovs, Deputy County Attorney

Authorized Representative of Parsons
Brinckerhoff, Inc.

Authorized Representative of The Robert B. Balter
Company

Authorized Representative of Facchina Construction
Company

. IN WITNESS WHEREOF, intending to be legally bound hereby, the Parties hereto, by their duly

antherized representatives, have executed this Agreement as of the date set forth below

7 Date:

Date:

Datei 17/ 20 I 7
7 Date:

7 Date:

Timothy L. Firestine, Chief Administrative Of?cer for
Montgomery County, Maryland

Approved as to? form-and legality by the Of?ce of the .
County Attorney:

John P. Markovs, Deputy County Attorney

/6?ncral Conant

A orize resentative of ParsOns
B1 kerhoff,I

- Authorized Repr?sentative of the Robert Balter
5 3 Company

AuthOrized Representative of Faechina Const1uctio11
Company

IN WITNESS WHEREOF, intending to be legally bound hereby, the Parties hereto, by their duly

authorized representatives, have executed this Agreement as of the date set forth below.

Date:

Date:

Date:

Date

579?411??

Date:

Timothy L. irestine, Chief Administrative Of?cer for
Montgomery County, Maryland

Approved as to form and legality by the Of?ce of the
County Attorney:

John P. Markovs, Deputy County Attorney

Authorized Representative of Parsons
Brinckerhoff, Inc.

WW i 4,
Authorized Representative of The Robert B. Balter
Cempany

Authorized Representative of Facchina Construction
Company

IN WITNESS WHEREOF, intending to be legally bound hereby, the Parties hereto, by their duly

authorized representatives, have executed this Agreement as of the date set f01

Date:

Date:

Date:

Date:

Date:

{/27/17

below.

Timothy L. irestine, Chief Administrative Of?cer for

Montgomery County, Maryland

Approved as to form and legality by the Of?ce of the

County Attorney:

John P. Markovs, Deputy County Attorney

Authorized Representative of Parsons
Brinckerhoff, Inc.

Authorized Representative of The Robert
Compan

,(Eo A prey

B. Balter

Authorized Represente?ive of Facchina Construction

Company