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HomeMy WebLinkAbout000855 Original Contract City of Port Angeles Record#000855 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT ("Agreement") is entered into as of the date of the last signature below by and between IMCO General Construction, Inc. ("IMCO") and the City of Port Angeles ("Port Angeles" and/or the "City"), for the purpose of resolving certain outstanding issues relating to the ongoing Phase 1, CSO Project (the "Project"). The City and IMCO are referred to herein as the "Parties." WHEREAS, IMCO and the City entered into an agreement for the Project on August 8, 2012 for a public works project to substantially decrease the number of sewer overflows into the Port Angeles harbor by increasing the capacity of its sewer lines and wastewater treatment plant; and WHEREAS, a dispute has arisen between the City and IMCO relating to the payment of taxes for the Project; and WHEREAS, the Parties, through negotiation conducted in a mediation subject to ER 408 and RCW 7.07, have reached a mutually agreed settlement. NOW, THEREFORE, for mutual consideration and pursuant to the terms set forth in this Agreement, IMCO and the City agree as follows: 1. The recitals above are included as a part of this Settlement Agreement and incorporated herein for that purpose. 2. The City shall be responsible for all unpaid sales tax due for the Project, whether the taxes are calculated under Rule 170 or Rule 171. 3. The Parties shall enter into a deductive Change Order in the amount of three hundred ninety two thousand two hundred thirty eight dollars and fifty one cents ($392,238.51) and the Parties agree that no additional amounts are due from the City to IMCO relating to the Project. 4. The City and IMCO shall take all steps necessary to close out the Project. 5. This Agreement is unrelated to and does not in any way affect existing Project warranties. 6. 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 officers, directors, and employees of any of the foregoing, and their spouses and marital cornmunities, together with all insurers, all attorneys, all successors, heirs, assigns, or transferees, direct or remote, of any of the foregoing. 1 1009513A2 7. 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 spouses, agents, employees, independent mentors, 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. 8. 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 Settlement Agreement may not be amended, waived or modified in any way without the prior written consent of all Parties. 9. 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. 10. 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. 11. 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. Any dispute arising from or related to this Settlement Agreement shall be submitted to Christopher Soelling, who shall act in the capacity of arbitrator and his decision shall be final and binding and without appeal. Any necessary litigation shall be in the Superior Court of Clallam County, Washington. 12. 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. 13. If either Party 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 Christopher Soelling or in pretrial, trial, arbitration, appeal in any proceeding including bankruptcy, or in any action to enforce a judgment or award. 14. 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. 100951302 15. This Agreement is contingent upon ratification by the City of Port Angeles City Council. In the event the City Council fails to ratify it, this Agreement shall be void ab initio. IMCO General Construction, Inc. City of Port Angeles .' - By: ;F ,� By: �a Rf Date: - . �g Date: I ,1 t y Ratified by the City of Port Angeles City Council on December 16, 2014. Attest: G�pn'o� V&wd�('a Port An eles City Clerk I I 1009113.02