2010-02-01 Moseley Group-Middles SchoolsRESOLUTIONS
2oio-o2-01
WHEREAS, the Board of Supervisors (the "Board") of Pittsylvania County, Virginia, a
political subdivision of the Commonwealth of Virginia, and Moseley Architects P.C. (t/a The
Moseley Group, and f/k/a Moseley Harris & McClintock P.C. (Moseley)) entered into an AIA B151-1997
Abbreviated Standard Form of Agreement Between Owner and Architect made as of February 26, 2001,
pursuant to which Moseley was to provide design and contract administration services of specific scope
for five area middle schools situated in Pittsylvania County (the "Project"); and
WHEREAS, disputes have arisen between the Board and Moseley regarding the design, contract
administration, construction and repairs for four of the Project's schools: Chatham Middle School, Dan
River Middle School, Gretna Middle School and Tunstall Middle School (collectively referred to as the
"Schools"); and
WHEREAS, the Board has alleged, among other things, that there exist numerous construction
deficiencies, defects, safety risks and other problems in the Schools, including numerous water leaks and
missing fire stopping; and
WHEREAS, the Board filed two complaints against Moseley in the Circuit Court of the County
of Pittsylvania: (1) Case No. CL07000422-00, for which the Board obtained a voluntary nonsuit on
February 1 I, 2009, ("Complaint No. 1"); and (2) Case No. CL09-000302-00 which is pending as of the
date of this Resolution ("Complaint No. 2") and collectively referred to as the "Complaints"); and
WHEREAS, the parties have agreed to a resolution of al I the disputes described in the
Complaints pursuant to a settlement agreement, the form of which is attached as Exhibit A hereto (the
"Settlement Agreement");
NOW THEREFORE, BE IT RESOLVED, that the Board by this Resolution hereby approves,
ratifies and confirms the Settlement Agreement substantially in the form attached to these Resolutions and
authorizes the Chairman or V ice Chairman of the Board, either one of whom may act alone, to execute
and deliver the Settlement Agreement on behalf of the Board, with such completions, omissions,
insertions, and changes as may be recommended by legal counsel and approved by him, his execution of
the Settlement Agreement constituting conclusive evidence of his approval of any such completions,
omissions, insertions, and changes, which completions, omissions, insertions, and changes are hereby
ratified and approved by the Board; and
FURTHER RESOLVED, that the Board hereby confirms that, as of the effective date of
settlement as set forth in the introductory paragraph of the Settlement Agreement, it knows of no Alleged
Deficiencies other than the Owner's Allegations (as such terms are defined in the Settlement
Agreement).
Given under my hand this day, d
BOARD OF SUPERVISORS OF
PITTSYLVANIA COUNTY , VIRGINIA
~~~~~~s ~
Henry A. Davi , Jr., Chairman Clerk ofthe Board f Supervis s
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Settlement Agreement") is made by and
between Pittsylvania County School Board and Pittsylvania County Board of Supervisors
(collectively referred to as "Pittsylvania"), and Moseley Architects P.C., t/a The Moseley Group,
and f/k/a Moseley Harris & McClintock P.C. ("Moseley"), on this day of January, 2010.
WHEREAS Pittsylvania and Moseley entered into an AIA B 151-1997 Abbreviated
Standard Form of Agreement Between Owner and Architect made as of February 26, 2001 (the
`8151"), pursuant to which Moseley was to provide design and contract administration services
of specific scope for five area middle schools situated in Pittsylvania County (the "Project"); and
WHEREAS, disputes have arisen between Pittsylvania and Moseley regarding the design,
contract administration, construction and repairs for four of the Project's schools: Chatham
Middle School, Dan River Middle School, Gretna Middle School and Tunstall Middle School
(collectively referred to as the "Schools"); and
WHEREAS Pittsylvania has alleged, among other things, that there exist numerous
construction deficiencies, defects, safety risks and other problems in the Schools, including
numerous water leaks and missing fire stopping; and
WHEREAS, Pittsylvania filed two complaints against Moseley in the Circuit Court of the
County of Pittsylvania: (1) Case No. CL07000422-00, for which Pittsylvania obtained a
voluntary nonsuit on February 11, 2009 ("Complaint No. 1"); and (2) Case No. CL09-000302-00
which is pending as of the date of this Settlement Agreement ("Complaint No. 2") (collectively
referred to as the "Complaints"); and
WHEREAS, Pittsylvania has entered into settlement agreements with the contractors who
constructed the Project based upon the contractors' correction of construction deficiencies; and
WHEREAS, the parties have agreed to a resolution of all the disputes described in the
Complaints relative to each of the Schools and otherwise alleged by Pittsylvania; and
WHEREAS, the parties wish to settle and release those claims set forth and asserted in
the Complaints and otherwise alleged by Pittsylvania against Moseley, as well as other claims
relating to the design, contract administration, construction and/or repairs for the Project as
described herein;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by each party, Pittsylvania and Moseley agree to the following:
1. Within ten (10) days of the complete execution of this Final Settlement Agreement,
Moseley shall pay to Pittsylvania the sum of $15,500.00.
2. Defects or deficiencies in the professional services provided by Moseley pursuant to
the B 151 or any other services allegedly provided by Moseley related to the design, contract
administration, construction and/or repairs for the Project are referred to herein as "Alleged
Deficiencies." After due inquiry of the Superintendent and the Assistant Superintendent of
Schools and legal counsel,~ the Pittsylvania County School Board and Pittsylvania County Board
of Supervisors have each adopted resolutions in form attached as Exhibit A and B hereto which
confirm that, as of the effective date of the settlement, they currently know of no Alleged
Deficiencies other than those previously alleged by Pittsylvania and/or its representatives, in: (i)
the Complaints; (ii) the allegations in the December 30, 2008, letter from Glenn W. Pulley,
counsel for Pittsylvania, to William Laughlin of Moseley; and (iii) the issues raised in the
February 2, 2007, report by HDH Associates, P.C. regarding Site Investigation of Building Leaks
at: Gretna, Chatham, Dan River and Tunstall Middle Schools (the Alleged Deficiencies
' This reference shall not be construed to waive any privilege or subject protected attorney-client communications to
disclosure in this or any future litigation.
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previously alleged by Pittsylvania as identified in subsections (i)-(iii) of this paragraph 2
collectively are referred to as the "Owner's Allegations").
3. Pittsylvania, on behalf of itself, its past, present and future officers, board members,
directors, employees, partners, principals, affiliates, related entities, agents, attorneys,
representatives, insurers, and their respective heirs, successors, and assigns, or any person or
entity acting for or on behalf of Pittsylvania, now or in the future, fully releases and discharges,
and waives all claims against Moseley and its past, present and future officers, directors,
employees, partners, principals, affiliates, related entities, predecessors, agents, attorneys,
representatives, insurers, and their respective heirs, successors, and assigns from: (i) any and all
claims, demands, causes of action, and liability of every kind or nature whatsoever which
Pittsylvania ever had, currently has or may have in the future, whether known or unknown,
arising from or concerning the Owner's Allegations; and (ii) any and all claims, demands, causes
of action, and liability of every kind or nature whatsoever which Pittsylvania ever had, currently
has or may have in the future, arising from or concerning Alleged Deficiencies known by the
Pittsylvania County School Board and/or the Pittsylvania County Board of Supervisors as of the
effective date of this Settlement Agreement.
4. Promptly after receipt of clear funds from Moseley, Pittsylvania agrees to dismiss
with prejudice Complaint No. 2 with each party bearing its own costs, including attorney's fees,
and associated expenses.
5. This Settlement Agreement is to be construed and enforced under the laws of the
Commonwealth of Virginia.
6. In the event of a suit or action to enforce or defend in any manner this Settlement
Agreement, or to protect any rights hereunder, the substantially prevailing party shall be entitled
to recover all costs, expenses (including any expert witness fees) and reasonable attorneys' fees
incurred due to the offending party's actions or inactions.
7. This Settlement Agreement constitutes the entire agreement between Pittsylvania and
Moseley regarding settlement of the matters described herein and supersedes all prior
negotiations and discussions which are merged into this Settlement Agreement.
8. Each party acknowledges that it has read and fully understands this Settlement
Agreement and that it has executed this Settlement Agreement freely and without compulsion.
Each party further warrants that it is under no contractual, judicial or other restraint, which
impairs its right or legal ability to enter into this Settlement Agreement and to carry out its duties
and responsibilities hereunder.
9. Neither party admits any liability to the other by signing this Settlement Agreement
and any such liability is expressly denied. This Settlement Agreement shall not constitute any
admission of fact or law.
10. If any provision of this Settlement Agreement is held to be invalid or unenforceable,
all other provisions shall nevertheless continue to be fully effective.
11. This Settlement Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
12. This Settlement Agreement may not be modified or amended except by written
agreement specifically referring to this Settlement Agreement and signed by the parties prior to
the effective date of any such modification or amendment. The parties intend enforcement of
this provision notwithstanding any common law that would excuse enforcement.
13. The parties acknowledge that they have jointly drafted this Settlement Agreement
and agree that it shall not be construed in favor of, or against any party on the basis of
draftsmanship.
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14. The parties represent and warrant that none of the claims herein released have been
conveyed, assigned, secured or in any manner transferred, in whole or in part, to any third-party.
IN WITNESS WHEREOF, Pittsylvania and Moseley, by their duly authorized
representatives and agents, who, by their signatures below, affirm their authority to act on behalf
of their respective business entities, have executed this Settlement Agreement effective as of the
date set forth above.
PITTSYLVANIA COUNTY SCHOOL
BOARD
By:
Its:
PITTSYLVANIA COUNTY BOARD OF
SUPERVISORS
By:
Its:
MOSELEY ARCHITECTS P.C., t/a The
Moseley Group, and f/k/a Moseley Harris &
McClintock P.C.
By:
Its: