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HomeMy WebLinkAbout000564 Original ContractSETTLEMENT AGREEMENT City of Port Angeles Record #000564 THIS SETTLEMENT AGREEMENT "Agreement is entered into as of the date of the last signature below by and between Krei Architecture "Krei and the joint venture of the City of Port Angeles "Port Angeles and Clallam Transit "Clallam Transit jointly referred to as the Owner, for the purpose of resolving certain outstanding issues relating to the contract between the Owner and Krei for design and construction administration for a transit center project in the City of Port Angeles. WHEREAS, Port Angeles and Clallam Transit entered into a joint venture for the construction of a new transit center in downtown Port Angeles, which was referred to as the Port Angeles International Gateway Transportation Center Project "Gateway Project" and/or "Project") and included a new transit area for bus loading and unloading, an open air pavilion and an underground parking garage; and WHEREAS, the joint venture entered into a contract ("Contract") with Merritt and Pardini, predecessor to Krei, to undertake the design of the transit center and to provide construction administration for the Project; and WHEREAS, Owner initiated claims against Krei for breach of the Contract arising from unanticipated costs the Owner allegedly incurred due to change orders on the Gateway Project, which it alleged were the result of actions and inactions on the part of Krei employees and its consultant Bright Engineering, Inc. "Bright during the design and construction stages of the Gateway Project; and WHEREAS, Krei initiated a claim against the Owner for unpaid fees billed for its services during the term of the Project; and WHEREAS, the Owner, Krei and Bright, referred to collectively herein as (the "Parties engaged in mediation with Henry Jameson and have reached an agreement to settle all issues relating to the Project, other than claims not known to the Owner or not reasonably discoverable by it as of the date of this Settlement Agreement. A copy of the CR 2A Memorandum of Settlement drafted by Mr. Jameson and signed by the Parties at the end of the Mediation, is attached as Exhibit A and by this referenced incorporated herein. NOW, THEREFORE, for mutual consideration and pursuant to the terms set forth in this Agreement, Krei, Bright and Owner agree as follows: 1. No later than the day following full execution of this Settlement Agreement by the parties, Krei or its insurance carrier shall pay to the trust account of the law firm of Ryan Swanson Cleveland, PLLC the sum of $114,000. 2. No later than January 7, 2012 or the day following full execution of this Settlement Agreement by the parties, whichever is later, Bright or its carrier shall pay to the trust account of the law firm of Ryan Swanson Cleveland, PLLC the sum of $82,666.66. 3. The Parties direct the law firm of Ryan Swanson Cleveland, PLLC to disburse, after verifying that the checks have cleared the bank, the amount of $146,166.66 from such 1 deposits to the City of Port Angeles, the amount of $43,000 to Krei Architecture and the amount of $7,500 to Bright Engineering, Inc. 4. Except for the payments called for by paragraph 4 above, Krei Architecture and Bright Engineering, Inc. release all claims to and for payment of fees and costs in any way relating to the Project, including the total fees currently claimed of $78,281.62, together with all accrued interest on those fees at the rate of 8% under the Contract between the City of Port Angeles and Krei Architecture. 5. The parties agree that upon payment of the sums described above in paragraphs 2, 3 and 4, they release and discharge each other from any and all claims in any way relating to the Gateway Project, except that the scope of this release by the Owner shall be limited to claims known to it or reasonably discoverable by it as of the date of this Settlement Agreement. 6. Should disputes arise in any way regarding this Settlement Agreement, the Parties agree that such disputes shall be resolved by Henry C. Jameson acting with the powers of an arbitrator under RCW 7.04A. 7. Neither party shall disparage the other in connection with the work on the Gateway Project and the parties shall answer questions regarding the status of the dispute between them by stating that the dispute has been amicably resolved by a settlement. Nothing in this paragraph or Settlement Agreement shall limit either the City of Port Angeles's or Clallam Transit's ability and obligation to respond to public record requests. 8. This Agreement is binding upon, and shall benefit, each of the Parties above named, together with all partners, parent and subsidiary entities of those parties and partners, as well as all predecessors and successors of any of the foregoing, along with all affiliates of any of the foregoing, and all owners, officers, directors, and employees of any of the foregoing, and their spouses and marital communities, together with all insurers, all attorneys, all successors, heirs, assigns, or transferees, direct or remote, of any of the foregoing. 9. The releases, other conditions and the consideration identified herein are given in full settlement and compromise of doubtful and disputed claims. It is expressly understood and agreed that none of the Parties or any of their respective insurers, respective owners, spouses, agents, employees, independent contractors, representatives, partners, parent entities, subsidiaries or affiliates, admits any liability to each other by entering into this Settlement Agreement, such Liability being expressly denied, and the execution or performance of this Settlement Agreement shall not be for any purpose construed as an admission of liability. 10. This Settlement Agreement contains all the agreements and commitments of the Parties relating to the claims referenced in this Settlement Agreement and included in the releases. This Settlement Agreement is intended by the Parties as a final expression of their agreement and, therefore, incorporates all negotiations of the Parties and is the entire agreement of the Parties. This Agreement supersedes and replaces all prior agreements, except to the extent set forth in attached Exhibit A. This Settlement Agreement may not be amended, waived or modified in any way without the prior written consent of all Parties. 2 11. In entering into this Settlement Agreement, each Party hereto represents that it has relied upon the advice of an attorney of its own choice concerning the legal consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to each Party by its attorneys; and that the terms of this Agreement are fully understood and voluntarily accepted. 12. The recitals are included as a part of this Settlement Agreement and incorporated herein for that purpose. 13. Each Party represents and warrants that no other person or entity has, or has had, an interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement and that each Party has the sole right and exclusive authority to execute this Agreement. 14. This Settlement Agreement shall be construed in accordance with the laws of the State of Washington, notwithstanding the operation of any conflict or choice of law statutes or decisional law to the contrary. 15. The Parties agree that they may plead this Settlement Agreement as a complete bar and defense to all actions which may be commenced by or on behalf of any of the Parties against any of the other Parties with respect to claims which are released under the terms of this Settlement Agreement. 16. The Parties agree that any dispute(s) as to the terms of this Settlement Agreement shall be resolved by Henry C. Jameson acting with the powers of an arbitrator under RCW 7.04A. If either Party brings an issue before Mr. Jameson regarding the terms of this Settlement Agreement or brings any action to enforce such Party's rights hereunder, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in connection with such action, whether before Mr. Jameson, in pretrial, trial, arbitration, appeal in any proceeding including bankruptcy, or in any action to enforce a judgment or award. 17. This Agreement may be executed and delivered in separate counterparts, each of which, when all are so executed and delivered, shall be deemed an original and together shall constitute a single instrument. Krei Architecture By: 4.-a,i, By: Date: "2 Z Date: By: Date: Bright Engineering, Inc. 3 City of Port Angeles /Clallam Transit 11. In entering into this Settlement Agreement, each Party hereto represents that it has relied upon the advice of an attorney of its awn choice concerning the legal consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to each Party by its attorneys; and that the terms of this Agreement are fully understood and voluntarily accepted. 12. The recitals are included as a part of this Settlement Agreement and incorporated herein for that purpose. 13. Each Party represents and warrants that no other person or entity has, or has had, an interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement and that each Party has the sole right and exclusive authority to execute this Agreement. 14. This Settlement Agreement shall be construed in accordance with the laws of the State of Washington, notwithstanding the operation of any conflict or choice of law statutes or decisional Iaw to the contrary. 15. The Parties agree that they may plead this Settlement Agreement as a complete bar and defense to all actions which may be commenced by or on behalf of any of the Parties against any of the other Parties with respect to claims which are released under the terms of this Settlement Agreement. 16. The Parties agree that any dispute(s) as to the terms of this Settlement Agreement shall be resolved by Henry C. Jameson acting with the powers of an arbitrator under RCW 7.04A. If either Party brings an issue before Mr. Jameson regarding the terms of this Settlement Agreement or brings any action to enforce such Party's rights hereunder, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in connection with such action, whether before Mr. Jameson, in pretrial, trial, arbitration, appeal in any proceeding including bankruptcy, or in any action to enforce a judgment or award. 17. This Agreement may be executed and delivered in separate counterparts, each of which, when all are so executed and delivered, shall be deemed an original and together shall constitute a single instrument. Krei Architecture By. By. Date: Date: Bright Engineering, Inc. 3 City of Port Angeles/Clallam Transit 11. In entering into this Settlement Agreement, each Party hereto represents that it has relied upon the advice of an attorney of its own choice concerning the legal consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to each Party by its attorneys; and that the terms of this Agreement are fully understood and voluntarily accepted. 12. The recitals are included as a part of this Settlement Agreement and incorporated herein for that purpose. 13. Each Party represents and warrants that no other person or entity has, or has had, an interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement and that each Party has the sole right and exclusive authority to execute this Agreement. 14. This Settlement Agreement shall be construed in accordance with the laws of the State of Washington, notwithstanding the operation of any conflict or choice of law statutes or decisional law to the contrary. 15. The Parties agree that they may plead this Settlement Agreement as a complete bar and defense to all actions which may be commenced by or on behalf of any of the Parties against any of the other Parties with respect to claims which are released under the terms of this Settlement Agreement. 16. The Parties agree that any dispute(s) as to the terms of this Settlement Agreement shall be resolved by Henry C. Jameson acting with the powers of an arbitrator under RCW 7.04A. If either Party brings an issue before Mr. Jameson regarding the terms of this Settlement Agreement or brings any action to enforce such Party's rights hereunder, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in connection with such action, whether before Mr. Jameson, in pretrial, trial, arbitration, appeal in any proceeding including bankruptcy, or in any action to enforce a judgment or award. 17. This Agreement may be executed and delivered in separate counterparts, each of which, when all are so executed and delivered, shall be deemed an original and together shall constitute a single instrument. Krei Architecture City of Port Angeles /Clallam Transit By: Date: Bright Engineering, Inc. By: Date: 3 By: a. Date: I l (-11 i.3 CR 2A MEMORANDUM OF SETTLEMENT 1. No later than January 7, 2012, Bright or its carrier shall pay to the trust account of the law firm of Ryan Swanson Cleveland PLLC the sum of $82,666.66. 2. No later than December 30, 2012, Krei Architecture or its carrier shall pay to the trust account of the law firm of Ryan Swanson Cleveland PLLC the sum of $114,000. 3. The parties direct the law firm of Ryan Swanson Cleveland PLLC to disburse, after verifying that the checks have cleared the bank, the amount of $146,166.66 from such deposits to the City of Port Angeles, the amount of $43,000 to Krei Architecture and the amount of $7500 to Bright Engineering, inc. 4. Except for the payment called for by paragraph 3 above, Krei Architecture and Bright Engineering release all claims to payment of the total fees of $78,281.62, together with all accrued Interest at the rate of 8% under the contract between the City of Port Angeles and Krei Architecture. 5. The parties agree that upon payment of the sums described above they release and discharge each other from any claims relating to the Gateway Transportation Center Project. The scope of this release by the City shall be limited to claims known to it or reasonably discoverable by it as of the date of this Memorandum. 6. The parties may prepare more formai settlement agreements to document the settlement so long as such agreements do not change the above business terms. Should disputes arise regarding the wording of any such further settlement agreements, the parties agree that such disputes shall be resolved by Henry C. Jameson acting with the powers of an arbitrator under RCW 7.04A. 7. This Agreement is subject to the approval of the City Council of the City of Port Angeles. The City Manager and the City Attorney shall recommend such approval. 8. Neither party shall disparage the otner in connection with the work on the Gateway Transportation Center Project. The parties shall answer questions regarding the status of the dispute between them by stating that the dispute has been amicably resolved by a settlement. DATED this 10th day of December, 2012. CITY OF PORT ANGELES BY: KREI ARCHITECTURE BRIGHT? INEERING, INC. By: t/ Roger Myklebust RYAN SWANSON Lawyers since 1897 VIA FEDERAL EXPRESS William E. Bloor City Attorney City of Port Angeles 321 E. 5th P. 0. Box 1150 Port Angeles, WA 98362 Dear Bill: RAM:ddj Enclosures cc: Stephen L. Nourse, Esq. Kenneth G. Yalowitz, Esq. Coa Mernher of TAGLaw, a wo netwo ti of law faros RECE VED FEB 1 2013 PORT ANGELES LEGAL DEPARTMENT January 30, 2013 Re: City of Port Angeles Krei Architecture Bright Engineering l.nclosed is a completely executed Settlement Agreement between the parties and our tirm's check in the sum of $146,166.66, representing City of Port Angeles' portion of the settlement. Very truly yours. Roger Myklebust Ryan, Swanson Cleveland, PLLC 1201 Third Avenue, Suite 3400 Seattle, WA 98101 -3034 206 464 4224 I Fax 206 583 0359 Toll -free 800 458 5973 www ryanswansonlaw com direct dial 206.654.2220 direct fax 206.652.2920 myklebust @ryanlaw.com Ref No 780627 01/007488 00011 Roger Myklebust Lawyers since 1897 VIA HAND DELIVERY Stephen L. Nourse, Esq. Carney, Badley, Spellman 701 5th Ave., Suite 3600 Seattle, WA 98104 Dear Steve: RAM:ddj Enclosures Re: City of Port Angeles Krei Architecture Bright Engineering Enclosed is a completely executed Settlement Agreement between the parties. We have Federal Expressed our firm's check in the sum of $43,000.00, representing your client's portion of the settlement, to Krei Architecture directly pursuant to your instructions. cc: William Bloor Kenneth G. Yalowitz, Esq. Steve Aisaka at Parametrix Charter Member of TAGLaw, a worldwide network of law firms January 31, 2013 Very truly yours, Roger Myklebust Ryan, Swanson Cleveland, PLLC 1201 Third Avenue, Suite 3400 Seattle, WA 98101 -3034 206 464 4224 I Fax 206 583 0359 Toll -free 800 458 5973 www ryanswansonlaw com direct dial 206 654.2220 direct fax 206.652.2920 myklebust@ryanlaw.com Ref No 696902 02/007488 00011 Roger Myklebust RYAN'= SWANSO Lawyers since 1 897 VIA HAND DELIVERY Kenneth G. Yalowitz, Esq. Green Yalowitz 1420 5th Ave., Suite 2010 Seattle, WA 98101 Re: City of Port Angeles Krei Architecture Bright Engineering Dear Ken: Enclosed is a completely executed Settlement Agreement between the parties and our fine's check in the sum of $7,500.00, representing your client's portion of the settlement. RAM:ddj Enclosures cc: William Bloor Stephen L. Nourse, Esq. Charter Member of TAGLaw a worldwide network of law firms January 30, 2013 Very truly yours, Roger Myklebust ?2Q4 C o Ryan, Swanson Cleveland, PLLC 1201 Third Avenue, Suite 3400 Seattle, WA 98101 -3034 206 464 4224 i Fax 206 583 0359 Toll -free 800.458 5973 www.ryanswansonlaw com direct dial 206.654.2220 direct fax 206.652.2920 myklebust@ryanlaw.com Ref No 696902 02/007488 00011