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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. • • 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: -;--21t-c-etzu- .--1(2/11-4e-ciot Marian C. Parrish; City Clerk APPROVED AS TO-FORM: . . Walrath, City Attorney ‘1:46//- zip2-eL -14 797o • e e • 0 •■•■':4>:: 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 Page 3 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 Page 4 . , 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 Page 5 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 Page 6