Loading...
HomeMy WebLinkAbout5.866 Original Contract '. . \ ORIGINAL 5, g l..Pu SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release is entered into this 12th day of February, 2008, by and among the City of Port Angeles (hereinafter "City"), TBH & Associates, LLC, a Washington limited liability company (hereinafter ("TBH"), and Glacier Construction Services, Inc., a Washington corporation (hereinafter "Glacier"). The City, Glacier, and TBH are hereinafter referred to as the "Parties." I. RECITALS A. On or about May 3, 2006, the City entered into a Public Works Contract with Glacier for the construction of a project known as The Port Angeles Landfill Slope Stabilization (Project No. 02-21). B. On or about May 8, 2006, Glacier entered into a subcontract with TBH for the installation of certain primary and secondary drilled shafts. C. During the course of the Project, TBH submitted certain claims for additional compensation for extra work due to a number of different circumstances. D. On or about November 9, 2007, TBH submitted a Notice of Claim against the Project retainage and Glacier's bond in the amount of $550,302. Upon execution of this Settlement Agreement and Mutual Release and payment referenced below, TBH will release its Notice of Claim against the Project retainage and Glacier's bond. E. The Parties hereto wish to resolve any and all claims among each other that are currently outstanding on the Project. F. In an effort to avoid possible further exposure and the expense of litigation, the Parties hereto have agreed to enter into this Settlement Agreement and Mutual Release. WHEREFORE, without admitting any facts, allegations, claims, defenses, or liabilities, the Parties enter into this Settlement Agreement and Mutual Release on the following terms. II. SETTLEMENT AND MUTUAL RELEASE A. Terms of Payment 1. In consideration for the Mutual Release stated in Part B below, the City shall pay the sum of One Hundred Ninety-Seven Thousand Nine Hundred Sixty-Three and 48/100 Dollars ($197,963.48). Of the aforementioned $197,963.48 amount is allocated as follows: $70,559.05 additional compensation to TBH on account of the claim for additional work as submitted by TBH; $5,926.96 to Glacier, which Glacier shall remit to the appropriate governmental bodies for sales tax on the $70,559.05; Settlement Agreement - 1 77355.1 l JIIlft,?' . 1, . '. , \ $121,477.47 paid to TBH, which represents litigation/claims resolution costs that are not part of the selling price. This sum of One Hundred Ninety-Seven Thousand Nine Hundred Sixty-Three and 48/100 Dollars ($197,963.48) shall constitute full and final payment for the Mutual Release stated in Part B below. This sum is paid and accepted by all parties as an accord and satisfaction of disputed claims. Except as expressly stated in the following two paragraphs below, the City shall have no other obligation. There shall be no percentage markups as set forth in the prime contract (which includes Washington State Department of Transportation Standard Specifications (2006)), the subcontract, and other applicable statutes added to this sum for either Glacier or TBH. The City will use its best efforts to make this payment by February 29, 2008. On the condition that Glacier appropriately reports and pays sales tax on the $70,559.05, the City and TBH shall defend, indemnify, and hold Glacier harmless from any additional liability for sales tax associated with the $197,963.48 payment. 2. Final payment and release of retainage for both Glacier and TBH shall proceed in accordance with the Public Works Contract with Glacier for the construction of a project known as The Port Angeles Landfill Slope Stabilization (Project No. 02-21), (which includes Washington State Department of Transportation Standard Specifications (2006)), the subcontract, and other applicable statutes. The City will use its best efforts to close out the Project so that final payment and release of retainage occurs by March 28, 2008. 3. TBH releases any and all claims it has against Glacier's bonds and retention, including its November 9,2007, Notice of Claim in the amount of $550,302. 4. TBH and Peter Tapio personally represent and warrant to Glacier that, except for sales tax identified in paragraph A.1 above, TBH has paid any and all persons, including the State of Washington, who may claim against Glacier, its payment bond, its contractor's registration bond, and its retention on the subject Project. 5. TBH shall defend, indemnify, and hold Glacier harmless from any and all claims by: (a) third parties to this Agreement who contracted with TBH or sub-tier contractors to TBH to supply labor, materials, supplies, services, or equipment in connection with the subject Project; and (b) governmental bodies for taxes, assessments, contributions, and other sums owing by TBH or sub-tier subcontractors to TBH as a result of the subject Project, including, but not limited to, sums owing for unemployment contributions. 6. With regard to the release of final payment and retention from Glacier to TBH, Glacier agrees to pay to TBH the sum of $44,234.45, upon receipt of its final payment and release of retention by the City, which is a full and final settlement amount relating to final payment, retainage, backcharges, and any and all claims. 7. The City shall defend, indemnify, and hold Glacier and TBH harmless from any and all liabilities, penalties, and assessments as a result of the City's failure to obtain any required Department of the Army permits for performance of the subject Project, including, but not limited to, the matters about which Glacier was notified by letter of December 19, 2007, from the Department of the Army, Corps of Engineers. Settlement Agreement - 2 77355.1 I if 1MJf' . \ ' , , B. Mutual Release 1. Except as set forth below, and as otherwise specified in this Agreement, the Parties, on behalf of themselves and on behalf of their shareholders, officers, directors, partners, members, and joint venturers, predecessors, successors, insurers, attorneys, transferors, transferees, assigns, agents, and representatives, hereby release and forever discharge each other and their respective shareholders, investors, lenders, officers, directors, partners, members, parents, subsidiaries, affiliates, insurers, attorneys, successors, assigns, transferees, heirs, trustees, beneficiaries, agents, and representatives, and each of them, from any and all claims, rights, demands, liens, agreements, contracts, covenants, obligations, losses, causes of action, debts, costs, expenses, attorneys' fees, experts' fees, damages, or liabilities, whether based in contract, tort, or statute, or other legal or equitable theory of recovery, whether or not known or suspected to exist, anticipated or unanticipated, liquidated or unliquidated, and whether or not concealed or hidden, related to the Project as set forth herein. Not included in this release are the following: a. The City's and Glacier's rights against TBH for latent and undiscovered defective conditions and all warranty obligations owing by TBH to the City and Glacier. . b. The City's rights against Glacier for latent and undiscovered defective conditions and warranty obligations owing by Glacier to the City. III. MISCELLANEOUS PROVISIONS 1. This Settlement Agreement and Mutual Release is a complete and integrated agreement and supersedes any prior oral or written understanding or agreements of the Parties with respect to its terms and may not be amended except in a writing executed by all Parties. 2. This Settlement Agreement and Mutual Release is the product of negotiation among sophisticated Parties represented by counsel and may not be construed against any party, regardless of which party may have written down or circulated the text of this Settlement . Agreement and Mutual Release. Each of the parties hereto represents that it has executed and entered into this Settlement Agreement and Mutual Release in reliance solely upon its own independent investigation and analysis of the facts and circumstances, and that no representations, warranties or promises other than those set forth in this Settlement Agreement and Mutual Release were made by any party or any employee, agent or legal counsel of any party to induce another party to execute this Agreement. 3. Nothing contained within this Settlement Agreement and Mutual Release is an admission of liability or responsibility, which is expressly denied by all Parties, nor may it be admitted into evidence as proof of liability or responsibility. 4. This Settlement Agreement and Mutual Release will be enforced and interpreted under the laws of the State of Washington. The venue for the enforcement of this Settlement Agreement and Mutual Release will be the Superior Court for the State of Washington, Clallam County. 5. The parties hereto shall bear their own costs and expenses, including all attorneys' fees, in connection with the negotiation, documentation, and performance of this Settlement Agreement and Mutual Release. In the event that litigation or arbitration is necessary to enforce or remedy a breach of a provision or provisions of this Settlement Settlement Agreement - 3 77355.1 It~ -, ~ " Agreement and Mutual Release, all costs and all fees of experts and attorneys shall be paid by the non-prevailing party or parties to the prevailing party or parties. 6. Each person signing this Settlement Agreement and Mutual Release on behalf of a party warrants that he or she has authority to bind said entity by signing this Agreement. 7. The Recitals in Section I are an integral part of this Settlement Agreement and Mutual Release. CITY OF PORT ANGELES ~ ,. { : ' ,/ ~"*4- ?l:f::: By: TBH & ASSOCIATES, LLC \ By: Its: Peter Tapio, Individually GLACIER CONSTRUCTION SERVICES, INC. By: ~~:t: ' / t/.. ~k~</ ~4<f/--- Its: Settlement Agreement - 4 77355.1 If 1fJeJfl ~ " Agreement and Mutual Release, all costs and all fees of experts and attorneys shall be paid by the non-prevailing party or parties to the prevailing party or parties. 6. Each person signing this Settlement Agreement and Mutual Release on behalf of a party warrants that he or she has authority to bind said entity by signing this Agreement. 7. The Recitals in Section I are an integral part of this Settlement Agreement and Mutual Release. C,ITY OF PORT ANGELES \ ." By 7?}i7~~ \ By: Its: GLACIER CONSTRUCTION SERVICES, INC. By: Its: Settlement Agreement - 4 77355.1