No preview available
Contract 2024-085A2024-085A SETTLEMENT AGREEMENT This Settlement Agreement (this "Agreement") is made by and between Johnson-Laux Construction LLC ("JLC") and the City of Clermont (the "City"). JLC and the City are sometimes referred to herein individually as a "Party" or together as the "Parties." This Agreement shall be effective as of the date this Agreement is executed by both Parties (the "Effective Date'). RECITALS 1. JLC, as general contractor, and the City, as Owner, entered into a contract, Agreement No. 2022-009 (the "Contract") in which JLC agreed to fumish all labor, materials, equipment, machinery, tools, apparatus and transportation and perform all of the work described in the specifications entitled: RFB No. 22-002 titled Construction of Public Works Operations Facility — Rebid (the "Work") for Construction of Public Works Operations Facility located in Clermont, Florida (the "Project"). 2. Claims and disputes have arisen between the Parties related to progress payments and final payment, delays, liquidated damages, and defective and deficient work on the Project and the Parties' resulting damages therefrom (the "Dispute"). 3. In order to avoid the expense, inconvenience, and uncertainty of litigation, the Parties desire to resolve all disputes among them relating to the Contract, the Work, the Project, and the Dispute, and to execute this Agreement in full and complete settlement of any and all claims and disputes between them relating to the Contract, the Work, the Project, and the Dispute. NOW THEREFORE, in consideration of the foregoing and the mutual promises set forth herein, the receipt and sufficiency of which are acknowledged, the Parties agree as follows: 1. Recitals Incorporated. All of the above Recitals are incorporated by reference as if fully restated herein and made a part of this Agreement. 2. Settlement Payment. As further consideration for this Agreement, the City shall pay to JLC the sum of Five Hundred Fifty -Two Thousand and 00/100 Dollars ($552,500.00) (the "Settlement Payment") by wire transfer on or before November 15, 2024. The City acknowledges and agrees that all close-out documents required by the terms of the Contract and project specifications have been received and accepted by the City in satisfaction of the condition for Final Payment to JLC. Further the payment herein by City is mad a in reliance upon JLC's representation and warranty that all of its subcontractors and suppliers related to the Project have either been paid in full or shall be paid in full after receipt of the Settlement Payment." 3. Use of Proiect Images. JLC agrees not to publish any photographs or other images of the Project on its website. 4. JLC Release. In consideration of the mutual promises and agreements set forth herein, JLC does hereby fully, finally, unconditionally, conclusively, absolutely, irrevocably, and forever release and discharge the City, and its agents, predecessors, employees, officers, directors, members, managers, attorneys, affiliates, subsidiaries, parent corporations or business entities, successors, assigns, heirs, sureties, and insurers (" 1he City Released Parties"), none of whom admit any liability and all of whom expressly deny any liability, from any and all suits, claims, defenses, causes of action (whether based on contract, tort, or any other theory of liability), rights, debts, contracts, bonds, agreements, demands for payment or other relief, liabilities, damages, costs, attorneys' fees, and any obligations of any nature, in law, in equity, or otherwise, known or unknown, foreseen and unforeseen, which existed, now exist, or may exist in the future, and whether or not such claim(s) are liquidated, contingent, or otherwise not matured, arising from or relating in any way, directly or indirectly, to the Contract, the Work, the Project, and/or the Dispute. Each of The City Released Parties are intended third -party beneficiaries for purposes of enforcement of this release. 5. The City Release. In consideration of the mutual promises and agreements set forth herein, the City does hereby fully, finally, uncond itionally, conclusively, absolutely, irrevocably, and forever release and discharge JLC, and, as applicable, each of its agents, predecessors, employees, officers, directors, members, managers, attorneys, affiliates, subsidiaries, parent corporations or business entities, successors, assigns, subcontractors, heirs, sureties, and insurers ("JLC Released Parties"), none of whom admit any liability and all of whom expressly deny any liability, from any and all suits, claims, defenses, causes of action, rights, debts, contracts, agreements, demands for payment or other relief, liabilities, damages, costs, attorneys' fees, and any .obligations of any nature, in law in equity, or otherwise, known or unknown, foreseen and unforeseen, which existed, now exists, or may exist in the future, and whether or not such claim is liquidated, contingent, or otherwise not matured, arising from or relating in any way, directly or indirectly, to the Contract, the Work, the Project, and/or the Dispute. Each of the JLC Released Parties are intended third -party beneficiaries for purposes of enforcement of this release. The terms contained herein shall not act or be construed to release JLC from any claim or action for non- payment against the City related to any employee, subcontractor or material provider employed by or under contact with JLC for work or material provided to the project. Furthermore, the terms contained herein, shall not act or be construed to release a subcontractor or a manufacturer of its obligations under any guarantee or warranty submitted to City from JLC as part of the close-out documents under the terms of the Contract and project specifications. 6. Further Assurances. Time is of the essence. Each Party agrees to take any action reasonably required or necessary in order to accomplish the purposes of this Agreement, including without limitation the adoption, execution, and delivery of any resolutions, orders, or other documents. 7. Representations. Each of the Parties represent and warrant that, in executing this Agreement and granting the releases provided herein, they do so with full knowledge of any and all rights that any of them have against each other with respect to the matters set forth and released herein, that each of the Parties has received independent legal advice with respect to the matters set forth and released herein and with respect to the rights and asserted rights arising out of such matters, and that each of the Parties is entering into this Agreement and granting the releases herein of his, her, or its own respective free will. Each of the Parties represent and warrant to the other Party that none of the debts, claims, obligations, damages, costs, attorney's fees, suits, demands, liabilities, actions, proceedings, and causes of action that are being released in this Agreement (collectively, the "Released Claims") have been sold, transferred, or assigned to any person or entity prior to the date hereof and that all such Released Claims, if and to the extent they exist, are 2of4 owned by the respective Parties to this Agreement. 8. No Admission of Liability. Nothing in this Agreement or otherwise related to this settlement and its negotiation, documentation, and implementation is, nor shall be deemed to be, an admission of any wrongdoing by any Party. The Parties have agreed to enter into this Agreement to avoid the further expense, inconvenience, and uncertainty of litigation. 9. Consideration. Each of the Parties hereto hereby agrees and acknowledges that the rights and benefits granted to each of them, subject to their respective obligations hereunder, constitute full and adequate consideration to each such Party to enter into this Agreement, and each such Party has expressly bargained for and agrees that the rights afforded themconstitute a material inducement to agree to settle these matters in accordance with the terms and conditions of this Agreement. 10. Costs, Expenses, and Attomeys' Fees. The Parties acknowledge and agree that each of them is to bear his, her, or its own costs, expenses, and attorneys' fees arising from, related to, or in connection with the Contract, the Work, the Project, and the Dispute, the negotiation, drafting, and execution of this Agreement, and the consummation of the settlement contained herein. 11. Signatures and Counterparts. This Agreement may be executed in counterparts, each of which, when read together with the signatures of those Parties signing other counterparts, shall be deemed a complete original copy. Delivery of an executed counterpart of a signature page to this Agreement via facsimile or email shall be effective as delivery of a manually executed counterpart of this Agreement. A facsimile, scanned, or digital signature of any party to this Agreement shall be sufficient for all purposes, including enforcement. 12. Successor and Assigns. This Agreement and all covenants and releases set forth herein shall be binding upon and shall inure to the benefit of the Parties hereto, their legal successors, agents, heirs, assigns, partners, directors, representatives, attorneys, shareholders, employees, affiliated corporations, and business entities. 13. No Third -Party Beneficiaries. Except for the JLC Released Parties and the City Released Parties, which are Third -Party Beneficiaries for purposes of enforcing the releases above, the Parties do not intend to create any third -party beneficiaries of this Agreement. Nothing in this Agreement shall confer upon any person or entity not a Party any legal or equitable right, claim, defenses, or remedy underor otherwise relative to this Agreement unless expressly set forth herein. 14. Authority. Each Party executing this Agreement acknowledges that he, she, or it is properly authorized to enter into this Agreement in his or her individual or representative capacity. 15. Advice of Counsel. Construction. Each Party to this Agreement acknowledges and represents that he, she, or it is executing this Agreement after having received full legal advice from counsel of his, her or its choice. The undersigned certify that they have read the entirety of this Agreement, as well as any related documents referenced herein, and fully understand the terms and conditions of this settlement. The Parties agree that this Agreement shall be deemed to have been drafted equally by both Parties and shall not be presumptively construed either in favor or against any of the Parties hereto. 3of4 16. Governing, Law. This Agreement shall in all respects be construed in accordance with the laws of the State of Florida without reference to the choice of law principles of any jurisdiction. 17. Enforcement and Remedies. In the case of legal action resulting from a breach by any of the Parties of any provision of this Agreement, the prevailing Party shall not be entitled to an award of attorneys' fees, and the parties shall bear their own attorneys' fees and costs. The Parties shall and hereby submit to the jurisdiction of the state court of the state of Florida, and venue shall be laid solely and exclusively in Lake County, Florida. 18. Entire Agreement. The Parties acknowledge and represent that no promise or representation not contained in this Agreement has been made to them, and that this Agreement contains the entire understanding and agreement between the Parties, and it contains all terms and conditions pertaining to the compromise and settlement provided for herein. 19. Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by the Parties. No waiver of any provisions of this Agreement shall be deemed to constitute a waiver of any other provision, whether similar or not similar; nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless set forth in writing signed by the party making the waiver. 20. Severability. If any provision of this Agreement is contrary to, prohibited by, or deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder of this Agreement shall not be invalidated thereby and shall be given full force and effect so far as possible. 21. No Assignments. This Agreement may not be assigned by any Party for any reason without the express written consent of all the other Parties. In witness whereof, the Parties have executed and delivered this Agreement as of the dates set forth below. JOH LAUX CONSTRUCTION LLC CITY OF CLERMONT By;,, By: r Jon . an D Biasetti, CFO Brian Bulthuis, City Manager 'game and Title Date: l�il1-2- Date: 4of4 SETTLEMENT AGREEMENT This Settlement Agreement (this "Agreement") is made by and between Johnson-Laux Construction LLC ("JLC") and the City of Clermont (the "City"). JLC and the City are sometimes referred to herein individually as a "Party" or together as the "Parties." This Agreement shall be effective as of the date this Agreement is executed by both Parties (the "Effective Date'). RECITALS 1. JLC, as general contractor, and the City, as Owner, entered into a contract, Agreement No. 2022-009 (the "Contract") in which JLC agreed to furnish all labor, materials, equipment, machinery, tools, apparatus and transportation and perform all of the work described in the specifications entitled: RFB No. 22-002 titled Construction of Public Works Operations Facility — Rebid (the "Work") for Construction of Public Works Operations Facility located in Clermont, Florida (the "Project"). 2. Claims and disputes have arisen between the Parties related to progress payments and final payment, delays, liquidated damages, and defective and deficient work on the Project and the Parties' resulting damages therefrom (the "Dispute"). 3. In order to avoid the expense, inconvenience, and uncertainty of litigation, the Parties desire to resolve all disputes among them relating to the Contract, the Work, the Project, and the Dispute, and to execute this Agreement in full and complete settlement of any and all claims and disputes between them relating to the Contract, the Work, the Project, and the Dispute. NOW THEREFORE, in consideration of the foregoing and the mutual promises set forth herein, the receipt and sufficiency of which are acknowledged, the Parties agree as follows: 1. Recitals Incorporated. All of the above Recitals are incorporated by reference as if fully restated herein and made a part of this Agreement. 2. Settlement Payment. As further consideration for this Agreement, the City shall pay to JLC the sum of Five Hundred Fifty -Two Thousand and 00/100 Dollars ($552,500.00) (the "Settlement Payment") by wire transfer on or before November 15, 2024. The City acknowledges and agrees that all close-out documents required by the terms of the Contract and project specifications have been received and accepted by the City in satisfaction of the condition for Final Payment to JLC. Further the payment herein by City is made in reliance upon JLC's representation and warranty that all of its subcontractors and suppliers related to the Project have either been paid in full or shall be paid in full after receipt of the Settlement Payment." 3. Use of Proiect Images. JLC agrees not to publish any photographs or other images of the Project on its website. 4. JLC Release. In consideration of the mutual promises and agreements set forth herein, JLC does hereby fully, finally, unconditionally, conclusively, absolutely, irrevocably, and forever release and discharge the City, and its agents, predecessors, employees, officers, directors, members, managers, attorneys, affiliates, subsidiaries, parent corporations or business entities, successors, assigns, heirs, sureties, and insurers ("The City Released Parties"), none of whom admit any liability and all of whom expressly deny any liability, from any and all suits, claims, defenses, causes of action (whether based on contract, tort, or any other theory of liability), rights, debts, contracts, bonds, agreements, demands for payment or other relief, liabilities, damages, costs, attorneys' fees, and any obligations of any nature, in law, in equity, or otherwise, known or unknown, foreseen and unforeseen, which existed, now exist, or may exist in the future, and whether or not such claim(s) are liquidated, contingent, or otherwise not matured, arising from or relating in any way, directly or indirectly, to the Contract, the Work, the Project, and/or the Dispute. Each of The City Released Parties are intended third -party beneficiaries for purposes of enforcement of this release. 5. The City Release. In consideration of the mutual promises and agreements set forth herein, the City does hereby fully, fmally, uncond itionally, conclusively, absolutely, irrevocably, and forever release and discharge JLC, and, as applicable, each of its agents, predecessors, employees, officers, directors, members, managers, attorneys, affiliates, subsidiaries, parent corporations or business entities, successors, assigns, subcontractors, heirs, sureties, and insurers ("JLC Released Parties"), none of whom admit any liability and all of whom expressly deny any liability, from any and all suits, claims, defenses, causes of action, rights, debts, contracts, agreements, demands for payment or other relief, liabilities, damages, costs, attorneys' fees, and any obligations cf any nature, in law in equity, or otherwise, known or unknown, foreseen and unforeseen, which existed, now exists, or may exist in the future, and whether or not such claim is liquidated, contingent, or otherwise not matured, arising from or relating in any way, directly or indirectly, to the Contract, the Work, the Project, and/or the Dispute. Each of the JLC Released Parties are intended third -party beneficiaries for purposes of enforcement of this release. The terns contained herein shall not act or be construed to release JLC from any claim or action for non- payment against the City related to any employee, subcontractor or material provider employed by or under contact with JLC for work or material provided to the project. Furthermore, the terms contained herein, shall not act or be construed to release a subcontractor or a manufacturer of its obligations under any guarantee or warranty submitted to City from JLC as part of the close-out documents under the terms of the Contract and project specifications. 6. Further Assurances. Time is of the essence. Each Party agrees to take any action reasonably required or necessary in order to accomplish the purposes of this Agreement, including without limitation the adoption, execution, and delivery of any resolutions, orders, or other documents. 7. Representations. Each of the Parties represent and warrant that, in executing this Agreement and granting the releases provided herein, they do so with full knowledge of any and all rights that any of them have against each other with respect to the matters set forth and released herein, that each of the Parties has received independent legal advice with respect to the matters set forth and released herein and with respect to the rights and asserted rights arising out of such matters, and that each of the Parties is entering into this Agreement and granting the releases herein of his, her, or its own respective free will. Each of the Parties represent and warrant to the other Party that none of the debts, claims, obligations, damages, costs, attorney's fees, suits, demands, liabilities, actions, proceedings, and causes of action that are being released in this Agreement (collectively, the "Released Claims") have been sold, transferred, or assigned to any person or entity prior to the date hereof and that all such Released Claims, if and to the extent they exist, are 2 of 4 owned by the respective Parties to this Agreement. S. No Admission of Liability. Nothing in this Agreement or otherwise related to this settlement and its negotiation, documentation, and implementation is, nor shall be deemed to be, an admission of any wrongdoing by any Party. The Parties have agreed to enter into this Agreement to avoid the further expense, inconvenience, and uncertainty of litigation. 9. Consideration. Each of the Parties hereto hereby agrees and acknowledges that the rights and benefits granted to each of them, subject to their respective obligations hereunder, constitute full and adequate consideration to each such Party to enter into this Agreement, and each such Party has expressly bargained for and agrees that the rights afforded themconstitute a material inducement to agree to settle these matters in accordance with the terms and conditions of this Agreement. 10. Costs, Expenses. and Attomeys' Fees. The Parties acknowledge and agree that each of them is to bear his, her, or its own costs, expenses, and attorneys' fees arising from, related to, or in connection with the Contract, the Work, the Project, and the Dispute, the negotiation, drafting, and execution of this Agreement, and the consummation of the settlement contained herein. 11. Signatures and Counterparts. This Agreement may be executed in counterparts, each of which, when read together with the signatures of those Parties signing other counterparts, shall be deemed a complete original copy. Delivery of an executed counterpart of a signature page to this Agreement via facsimile or email shall be effective as delivery of a manually executed counterpart of this Agreement. A facsimile, scanned, or digital signature of any party to this Agreement shall be sufficient for all purposes, including enforcement. 12. Successor and Assigns. This Agreement and all covenants and releases set forth herein shall be binding upon and shall inure to the benefit of the Parties hereto, their legal successors, agents, heirs, assigns, partners, directors, representatives, attorneys, shareholders, employees, affiliated corporations, and business entities. 13. No Third-Partv Beneficiaries. Except for the JLC Released Parties and the City Released Parties, which are Third -Party Beneficiaries for purposes of enforcing the releases above, the Parties do not intend to create any third -party beneficiaries of this Agreement. Nothing in this Agreement shall confer upon any person or entity not a Party any legal or equitable right, claim, defenses, or remedy underor otherwise relative to this Agreement unless expressly set forth herein. 14. Authority. Each Party executing this Agreement acknowledges that he, she, or it is properly authorized to enter into this Agreement in his or her individual or representative capacity. 15. Advice of Counsel. Construction. Each Party to this Agreement acknowledges and represents that he, she, or it is executing this Agreement after having received full legal advice from counsel of his, her or its choice. The undersigned certify that they have read the entirety of this Agreement, as well as any related documents referenced herein, and fully understand the terms and conditions of this settlement. The Parties agree that this Agreement shall be deemed to have been drafted equally by both Parties and shall not be presumptively construed either in favor or against any of the Parties hereto. 3 of 4 16. Governing Law. This Agreement shall in all respects be construed in accordance with the laws of the State of Florida without reference to the choice of law principles of any jurisd iction. 17. Enforcement and Remedies. In the case of legal action resulting from a breach by any of the Parties of any provision of this Agreement, the prevailing Party shall not be entitled to an award of attorneys' fees, and the parties shall bear their own attorneys' fees and costs. The Parties shall and hereby submit to the jurisdiction of the state court of the state of Florida, and venue shall be laid solely and exclusively in Lake County, Florida. 18. Entire Agreement. The Parties acknowledge and represent that no promise or representation not contained in this Agreement has been made to them, and that this Agreement contains the entire understanding and agreement between the Parties, and it contains all terms and conditions pertaining to the compromise and settlement provided for herein. 19. Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by the Parties. No waiver of any provisions of this Agreement shall be deemed to constitute a waiver of any other provision, whether similar or not similar; nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless set forth in writing signed by the party making the waiver.. 20. Severability. If any provision of this Agreement is contrary to, prohibited by, or deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder of this Agreement shall not be invalidated thereby and shall be given full force and effect so far as possible. 21. No Assignments. This Agreement may not be assigned by any Party for any reason without the express written consent of all the other Parties. In witness whereof, the Parties have executed and delivered this Agreement as of the dates set forth below. JO76n[D-13 LAUX CONSTRUCTION LLC By,,. r Jonetti,CFO ame and Title Date: 13 t Z T CITY OF CLERMONT By: , �--�_ Brian Bulthuis, City Manager Date: 4of4 Debra Rybarczyk From: Mantzaris, Daniel F. <dmantzaris@dsklawgroup.com> Sent: Friday, November 1, 2024 10:50 AM To: Brian Bulthuis Cc: Stoney Brunson; James Maiworm; Neal, Thomas F.; Freddy Suarez; Scott Borror; Debra Rybarczyk Subject: FW: JLC and Clermont - Settlement Agreement for Signature Attachments: Settlement Agreement - JLC and City of Clermont Final (241031)-Signed.pdf Brian, See attached this is the final version of the settlement agreement for your signature. All of the close-out documents have been received, reviewed and approved by Stoney's staff, including the as -built plans. This agreement fully releases Johnson-Laux for any claims that the City may have except for those related to any unpaid subs. Because it is a public project, a sub or material supplier cannot record a lien against the property and thus would only have a claim against the payment bond, if they are not paid. Excluding these possible payment claims from the release the city retains the right to hold Johnson responsible if a sub is not paid. Additionally, the release excludes any warranty claims that the City may have for equipment installed on the project (manufacture warranties). By copy of this to Debbie, I am asking her to print for your review and signature. Please let me know if you have any questions. Dan From: Ryan M. Charlson <rmc@kirwinnorris.com> Sent: Thursday, October 31, 2024 1:31 PM To: Mantzaris, Daniel F. <dmantzaris@dsklawgroup.com> Cc: Neal, Thomas F. <tneal@dsklawgroup.com>; Caitlin M. Bunch <cmb@kirwinnorris.com> Subject: RE: JLC and Clermont - Settlement Agreement for Signature Settlement Agreement executed by JLC Ryan M. Charlson I Partner Board Certified in Construction Law by the Florida Bar Kirwin Norris, P.A. 840 S. Denning Dr., Suite 200 Winter Park, Florida 32789 C: 407-325-7762 O: 407-740-6600 F: 407-740-6363 E: nuc( )kirwinnorris.corn ffJ , One Fir,77. One Focus. \ \ Consfruction Law. This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney -client confidential and/or privileged information. If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying, or distribution is strictly prohibited. If you have received this email message in error. please contact the sender by reply email and destroy all copies of the original message including attachments. Thank you. Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer, (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice, and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. From: Ryan M. Charlson Sent: Thursday, October 31, 2024 11:23 AM To: Mantzaris, Daniel F. <dmantzaris@dsklawgroup.com> Cc: Neal, Thomas F. <tneal@dsklawgroup.com>; Caitlin M. Bunch <cmb@kirwinnorris.com> Subject: JLC and Clermont - Settlement Agreement for Signature Great speaking with you, Dan. Here is the final version for signature. I have sent to JLC as well and will submit our signature page with wire instructions. It's been great working with you and Tom on this one. I look forward to the next one together. Ryan Ryan M. Charlson I Partner Board Certified in Construction Law by the Florida Bar Kirwin Norris, P.A. 840 S. Denning Dr., Suite 200 Winter Park, Florida 32789 C: 407-325-7762 0:407-740-6600 F: 407-740-6363 E: rmc(o)kirwinnorris.com /' , One Finn. One Focus. © \ , Construction Law. This email message including attachments, if any, is intended for the use of the individual or entity named above and may contain attorney -client confidential and/or privileged information If the reader of this message is not the intended recipient, you are hereby notified that any review, use, disclosure, copying. or distribution is strictly prohibited. If you have received this email message in error, please contact the sender by reply email and destroy all copies of the original message including attachments- Thank you. Pursuant to federal regulations imposed on practitioners who render tax advice ("Circular 230"), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. If this advice is or is intended to be used or referred to in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement, the regulations under Circular 230 require that we advise you as follows: (1) this writing is not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed on a taxpayer: (2) the advice was written to support the promotion or marketing of the transaction(s) or matter(s) addressed by the written advice: and (3) the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.