HomeMy WebLinkAbout5.717 Original Contract
5.7/7
SETTLEMENT AND RELEASE AGREEMENT
THIS SET?'!tEMENT AND RELEASE AGREEMENT (the "Agreement") is made and
entered into thi~y of October, 2007, by and between the City of Port Angeles, a Washington
municipal corporation, hereafter the "City", and Waste Connections of Washington, Inc., a
Washington corporation, hereafter the "Contractor".
For and in consideration of the payments made as described below and for other benefits to be
derived herefrom,.the Parties hereby recite, covenant and agree as follows:
1. The Parties entered into that certain Solid Waste Processing Facility Development and
Management Services Agreement, dated AprilS, 2005, as amended pursuant to that certain First
Amendment, dated October 20,2005 (as amended, the "Services Agreement"). Capitalized terms
used herein but not otherwise defined shall have the meanings ascribed to them in the Services
Agreement.
2. One portion of the Services Agreement, referred to therein as "Service Component I",
requires the Contractor to construct and then to operate a solid waste Transfer Station on property
owned by the City. A number of issues have arisen between the Parties regarding the construction and
operation of the solid waste Transfer Station. Such issues include claims by the Contractor relating to
the cost of construction of the Transfer Station (the "Construction Claims") and claims by the
Contractor relating to the City's postponement ofthe commencement of commercial operation of the
Transfer Station from October 2,2006 to January 1,2007 (the "Commencement Claim"). Another
portion of the Services Agreement, referred to therein as "Service Component IV", relates to the
collection, processing and marketing of Recyclable Materials and issues have arisen between the
Parties regarding the amount owed to the Contractor for curbside equipment cost overruns incurred
prior to the date ofthis Agreement applicable to Service Component IV (the "Recycling Equipment
Claim"). The Construction Claims, the Commencement Claim and the Recycling Equipment Claim
which are listed in more detail on Exhibit A attached hereto (collectively, the "Mediation Claims")
were all subject to a mediation between the City and Contractor that was held with Judicial Dispute
Resolution before the Honorable George A. Finkle on July 12,2007 (the "Mediation").
3. The Parties desire to settle all claims that were subject to the Mediation. After review
and discussion, the City and the Contractor have reached a mutual compromise, settlement and accord
and satisfaction ofthe Mediation Claims. For its part, the City shall pay to the Contractor the sum of
$700,000 as soon as possible after the execution of this Agreement and, in any event, within seven
days after City Council approval of this Agreement as signed by the Contractor. Of such amount
$230,992.00 represents payment to the Contractor for the settlement of the Commencement Claim and
the balance is for settlement of all other Mediation Claims. In exchange for such payment the
Contractor has agreed to waive and release the City from any and all claims and causes of action for
compensation owed relating to or arising from the Mediation Claims.
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4. Accordingly, for and in consideration of the payment described in Section 3 and these
agreements, each Party does hereby waive and release the other from, and does hereby acknowledge
the full and complete settlement and satisfaction of any and all claims, causes of actions, damages,
demands and rights of each Party and its agents and employees arising from or relating to the
Mediation Claims.
5. The City and Contractor confirm that, notwithstanding this Agreement and the
settlement described herein, the Contractor shall complete, no later than July 31, 2008, and without
additional compensation the demolition of the old scale house and scales and restoration of that
area of the Transfer Station Site, the paving and relining ofthe road from the point north of the
new scale house where new paving ended to the front gate and the paving, lining and completion
of the recycling area at the Transfer Station site. The City and Contractor agree that the Contractor
is not required to demolish the Pole Barn on the site and the City will not claim a credit against
any amount owed to the Contractor for the deduction of that work. Final Acceptance of
construction of the solid waste Transfer Station shall occur pursuant to the terms of the Services
Agreement upon the Contractor's completion of the work described in this Section 5; provided
that, the City and Contractor hereby agree that all work on the Transfer Station, other than the
work described in this Section 5, has been completed as required under the Services Agreement to
the satisfaction of the City.
6. The 20 year Term described in Section 4.1 of the Services Agreement remains
unchanged, and runs from October 2,2006 through and including October 1, 2026. For purposes of
the Services Agreement, including but not limited to calculating the annual adjustments to Service
Fees described in Sections 17.2 and 17.3 thereof and the related Forms of Exhibit A thereto, the
Commercial Operations Date for Service Components I-III, V and VI shall be deemed to be October 2,
2006. The Commercial Operations Date for Service Components IV is and shall remain July 1,2006.
7. This is a compromised settlement of a disputed claim, and this shall not be deemed or
construed as an admission of liability on the part of either Party.
8.
Parties.
This settlement and satisfaction shall be binding upon the successors in interest to the
9. Preservation of Contract Rights, Warranties and Obligations. Except as specifically
released in this Agreement, the City reserves all of its rights under the Services Agreement, case law
or statute, including without limitation the warranties covering the services, labor and materials of the
Contractor and its subcontractors and suppliers. Said rights of the City, and warranties and obligations
of the Contractor, shall survive this Agreement.
10. Limitation on Release. Notwithstanding the release provision of paragraph 4 herein,
nothing contained in this Agreement shall serve to release any of the parties from any obligations
created by or which continue under the terms of this Agreement other than those obligations that are
specifically released in this Agreement.
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11. Dispute Resolution. In the event of disputes arising in the enforcement of this
Agreement, such disputes shall be submitted to the mediator, Honorable George A. Finkle, or ifhe is
unavailable, a mutually-agreed arbitrator, for binding arbitration.
12. Authority to Execute. The parties to this Agreement represent and warranty that they
have the sole right and exclusive authority to execute and enter into this Agreement and receive the
consideration therefor, and that no party has sold, assigned, transferred, conveyed or purported to sell,
assign, transfer, conveyor otherwise dispose of, any claim or demand relating to any matter covered
by this Agreement.
13. Execution of Documents. The parties to this Agreement agree to promptly undertake
any and all actions and execute any and all documents reasonably necessary to effectuate the terms,
conditions, purposes and aims of this Agreement.
14. Attorneys' Fees. In the event that suit is brought to enforce or interpret any part ofthis
Agreement, the prevailing party of such suit shall be entitled to recover its reasonable costs and
attorneys' fees in an amount to be fixed by the arbitrator.
15. Amendments to be in Writing. This Settlement Agreement may not be altered,
amended, modified or changes in any respect or particular whatsoever, except by a writing duly
executed by all partie,s to this Settlement Agreement.
[Balance of page is intentionally left blank. Signatures are on the following page.]
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Dated this 23 day of October, 2007.
CITY OF PORT ANGELES
By: 71/~~Ltt, ~
Mark E. Madsen, 'ty Manager
::Pro:;;;::f ~
William E. Bloor, City Attorney
Attest:
By: ~~c~~ty ~:r A-
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WASTE CONNECTIONS OF
WASHINGTON, INC.
By: IJ-IJ J } iLl
Print Name: o~O&u.. ~. ~AM~;r'~
Title: ~x";'t-.......T:S:NE. ~..p. -r~
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STATE OF WASHINGTON)
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COUNTY OF CLALLAM )
I certify that I know or have satisfactory evidence that Mark E. Madsen is the person who
appeared before me and said person acknowledged that he signed this instrument, on oath stated that
he was authorized to execute the instrument and acknowledged it as the City Manager ofthe CiTY OF
PORT ANGELES, a Washington municipal corporation, to be the free and voluntary act and deed of
said party for the uses and purposes mentioned in the instrument.
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I certify that I know or have satisfactory evidence is the
person who appeared before me and said person owl edged that _ signed this instrument,
on oath stated that was authorized to ecute the instrument and acknowledged it as the
of WASTE ECTIONS OF WASHINGTON, INC., a Washington
corporation, to be the free agd~ntary act and deed of said party for the uses and purposes
mentioned in the instr errt.
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My appointment expires
(00004015.DOC.2}
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CALlFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of California
County of ~
personally appeared
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to be the person (,9( whose name(.sf'isfaffl....
subscribed to the within instrument and
acknowledged to me that he/~ executed
the same in his/hcr/tftcir- authorized
capacity(i.eSj, and that by his/~r/tl9eif"
signature\arOn the instrument the person~r
the entity upon behalf of which the person~
acted, execute e In trument.
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Aflac~ ~' .
Title or Type of Doc~men~' ttd. ~
Document Date:;( Number of Pages: 7
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Signer(s) Other Than Named Above: I' 'rl-
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Signer Is Representing: 1.IVa5k
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@ 1999 National Notary Association. 9350 De Soto Ave., P.O. Box 2402. Chatsworth, CA 91313-2402' www.NationaINotary.org
Prod. No. 5907
Reorder: Call Toll-Free '-800-876-6827
EXHIBIT A
DETAILS OF MEDIATION CLAIMS
CONSTRUCTION CLAIMS
1.
Price Escalations
Steel Work - Metal Bldg
Steel Work - Metal Doors
Steel Work - Misc Metals
Concrete Work -
Earthwork
$219,818
$ 13,926
$ 45,347
$230,407
$104,801
2. Unsuitable Soils
Trench Backfill
Scale Embankment
Pavement Subgrade - Pit Run
Pavement Subgrade - Quarry Spalls
Geotextile for Scale Embankment
Compost Area Excavation & Backfill
Surveying & Engineering
Credit from Scale Fill from Stockpile
$ 66,445
$304,032
$ 36,229
$ 48,462
$ 43,459
$ 17,155
$ 5,718
($57,183)
3. Chanees to Scope of Work
Firing Range Berm
Relocate Scales and Scale House
Relocate Recycling Area
Utility Extensions
Scale Software
$ 8,438
$ 16,869
$ 72,479
$ 26,607
$ 43,793
4. Undocumented Site Conditions
Undocumented Refuse
Landfill Base Mapping
Water & Electrical Services
Inaccurate T opo Mapping
$ 10,145
$ 37,085
$ 17,134
$ 8,578
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5. Additional Costs
Scale Embankment
Technical Support
$ 12,020
$ 87,600
6. Additional Compensation: Mise Punehlist items per Eddie Westmoreland letter of
11/9/2006
Handrail between road and handicap parking space $ 9,000
MRWF Extended Roof Overhang $ 42,493
Top-loading chute debris spill prevention collar undetermined
COMMENCEMENT CLAIM
1. Additional Compensation: Landfill SW Oet - Dee 2006 per David Mvre Email of
11/13/06
Depreciation
Interest
Sales G&A
Earnings Before Taxes (EBT)
$ 55,794
$ 21,198
$ 23,000
$131,000
RECYCLING EQUIPMENT CLAIM
1. Additional Compensation: Curbside Equip Overruns per Eddie Westmoreland email
of 11/9/2006
Cost for the procurement of additional
recycle bins and vehicles due to larger
number of subscribers for services
$189,000
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