HomeMy WebLinkAbout1971ORDINANCE NO. J97/
AN ORDINANCE of the City of Port Angeles
authorizing the payment of funds in
settlement of Clallam County Superior
Court Cause No. 23774, Spragues', Inc.
vs the City of Port Angeles.
WHEREAS the City of Port Angeles is named as defendant
in Clallam County Superior Court Cause No. 23774 wherein Spragues',
Inc., as plaintiff alleged that it had been damaged by the City of
Port Angeles in excess of $20,000 in connection with the construc-
tion of Shane Park; and
WHEREAS the City of Port Angeles answered the plaintiff's
complaint denying liability and raising a counter claim; and
WHEREAS Spragues', Inc., has offered to accept One
Thousand ($1,000) Dollars in settlement of the suit; and
WHEREAS it appears to be in the best interests of the
public to settle said suit for the reasons that, among others,'such
settlement avoids the uncertainty of a trial and minimizes the
expenditure of public funds; now therefore
THE COUNCIL OF THE CITY OF PORT ANGELES DOES ORDAIN as
follows:
Section 1. The Mayor and City Clerk are hereby author-
ized and directed to execute in triplicate original that certain
"Compromise and Settlement Agreement" a copy of which is attached
hereto and which is by this reference incorporated herein.
Section 2. There is hereby appropriated from the
contingency fund One Thousand ($1,000) Dollars which the Treasurer
is hereby authorized and directed to pay to Ralph E. Franklin as
attorney for Spragues', Inc., upon the receipt of duplicate originals
of the "Compromise and Settlement Agreement" referred to in
Section 1 hereof, executed by the appropriate officers of Spragues',
Inc.
Section 3. This measure being found,and passed by not
less than five members of this Council,to be necessary for the
protection of public property shall take effect immediately.
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PASSED by the City Council of the City of Port Angeles
at a regular meeting of the Council held this 18th day of
April, 1978.
ATTEST:
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Marian C. Parrish; City Clerk
APPROVED AS TO-FORM:
. . Walrath, City Attorney
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COMPROMISE AND SETTLEMENT AGREEMENT
Agreement between Spragues' Incorporated, a
Washington Corporation, hereinafter referred to as Spragues',
and the City of Port Angeles, a Municipal Corporation of the
State of Washington, hereinafter referred to as City.
• I
PURPOSE
This agreement is made as a compromise between the
parties for the complete and final settlement of their claims,
differences, and causes of action with respect to the dispute
described below.
This agreement is executed by the parties hereto
for the sole purpose of compromising and settling the matters
involved in this dispute, and it is expressly understood and
agreed, as a condition hereof, that this agreement shall not
constitute nor be construed to be an admission on the part
of any of the parties hereto or as evidencing or indicating
in any degree an admission of the truth or correctness of
any claims or allegations herein below asserted.
• STATEMENT OF DISPUTE
SPRAGUES' ASSERTS A CLAIM AGAINST THE CITY based on
the following allegations as more fully set forth the complaint
under Clallam County.Cause No. 23774.: :
Spragues' entered Into two written construction
contracts with the City for the construction of a City Park
in 1973 according to plans and specifications provided by the City
C.
1
During performance, Spragues' discovered errors in the plans
and specifications which required the placement of 5,950
cubic yards of fill material in excess of the quantity specified
in the above mentioned contracts. The City failed to pay
Spragues' the contract amount of $3.75 per cubic yard for
the above mentioned excess fill material.
THE CITY DENIES ANY LIABILITY TO SPRAGUES' and
asserts the following claim against Spragues', all as more
fully set forth in its answer and counter claim in Clallam
County Cause No. 23774:
As a result of change orders made by the City during
the performance of the contract, Spragues' was compensated
for the fill material. For the reason that Spragues' .failed
to complete performance for 'a total of 180 days beyond the
contract completion date, the City incurred additional
inspection charges and is entitled to liquidated damages at
the rate of $50 per day pursuant to the terms of the contract.
SPRAGUES' DENIES ANY LIABILITY TO THE CITY.
In consideration of the foregoing allegations, the
parties desired to reach a full and final compromise and
settlement of all matters and all causes of action arising out
of the assertions and claims as set forth above.
III
TERMS OF SETTLEMENT
In consideration of the mutual covenants set forth
herein, the parties agree as follows:
1. The City agrees to pay to Spragues' the sum of
$1,000 upon execution of this instrument by Spragues'.
Page 2.
2. Spragues' agrees that all claims, demands,
rights and causes of action it has or may have against the City
with respect to the above described dispute are satisfied,
discharged and settled without cost or fees in the above
identified court action.
3. The City agrees that all claims and demands that
it has or may have against Spragues' with respect to the above
described dispute are satisfied, discharged and settled without .
cost or fees in the above identified court action.
4. Both parties agree to execute any separate
documents necessary to effectuate the agreements herein.
IV
RESERVATIONS OF RIGHTS
This compromise agreement is to operate as a
release and discharge only as between the parties hereto,
and it is agreed that the parties expressly reserve the right
to prosecute suits and claims against any and all other
persons and corporations that may be responsible for or may
have contributed to the injuries and damages sustained and
claimed by any party.
CHANGE OF FACTS
It is understood by the parties that the facts in
respect of which this agreement is made, may hereafter prove
to be different than the facts now known by any of them or
believed by any of them to be true as set out in this agreement.
Each of the parties hereto expressly accepts and assumes the
risk of the facts proving to be so different, and each of the
parties hereto agrees that all the terms of this agreement
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shall be in all respects effective and not subject to termination
or recision by any such subsequently discovered difference
in facts.
VI
EFFECT OF AGREEMENT
This agreement shall be binding and inure to the
benefit of the parties and their respective legal representatives,
heirs, successors and assigns. '
IN WITNESS WHEREOF, the parties have executed this
agreement at the place and on the date appearing above their
respective signatures.'
DATED THIS if day of April, 1978 at Port Angeles,
Washington.
City of Port Angeles
By:
May
By: 4a'
City Clerk
DATED THIS day of
.Washington.
Spragues' Incorporated
By:
By:
President
Secretary
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, 1978 at
STATE OF WASHINGTON )
County of Clallam )
On this day of April, 1978, before me
personally appeared
and
to me known to be the President
and Secretary of the corporation that executed the within and
foregoing instrument, and acknowledged said instrument to be
the free and voluntary act and deed of said corporation, for
the uses and purposes therein mentioned, and on oath stated
that they were authorized to execute said instrument and that
the seal affixed is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year first above written
NOTARY PUBLIC in and for the State o
Washington, residing at
STATE OF WASHINGTON)
)
County of Clallam )
This is to certify that on this day of April,
1978, before me, a Notary Public in and for the State of
Washington, personally appeared Sam Haguewood, as Mayor, and
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Marian C. Parrish, as City Clerk, to me known to be the Mayor
and City Clerk, respectively, of the CITY OF PORT ANGELES,
a municipal corporation, and they acknowledged to me that they
executed the foregoing instrument as the free and voluntary
act and deed of said municipal corporation, and on oath stated
that they were authorized to execute the same, and that the
seal affixed is the corporate seal of said, corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and .
official seal the day and year first above written.
••NOTARY PUBLIC in and for the State
of Washington, residing at
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