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HomeMy WebLinkAbout17-214 - Walsh Construction Company II - CR 2A (Settlement) Agreement17-214 Contract Approval 12/4/17 CR2A AGREEMENT THIS CR 2A AGREEMENT ("Agreement") dated as of / �,-- 1/ , 2017, is between the City of Tukwila, Washington (the "City"), and Walsh Construction Company II, LCC ("Walsh") (individually a "Party," collectively the "Parties"). RECITALS A. Walsh was the general contractor to the City for a public works construction project commonly known as the Tukwila Interurban Avenue South, South 143rd Street to Fort Dent Way Project ("the Project"). B. Certain disputes arose related to construction of the Project regarding alleged differing site conditions, design changes, utility conflicts and relocation issues, contract quantity reconciliations, extra work orders, force account work, liquidated damages, the final payment due Walsh, and other issues in relation to the Project. C. Walsh submitted a claim/request for change and related data and analysis to the City in August and September of 2016 and the parties exchanged various correspondence related to the disputes described above. D. The Parties participated in mediation regarding the disputes and issues on June 16, 2017, administered by professional mediator Christopher J. Soelling. The Parties submitted extensive factual and legal briefing in connection with the mediation. Following the initial mediation session, the Parties convened several work sessions to investigate and to resolve issues through informal settlement negotiations. Following the work sessions, the Parties provided additional information to Mediator Soelling and continued mediated negotiations in good faith. E. To avoid the uncertainty of litigation and the expense including fees and costs, the Parties have agreed to a compromise. In exchange for Walsh agreeing to waive all claims related to the Project, the City agrees to pay Walsh the Settlement Amount stated herein and waive its claim for liquidated damages. F. The Parties desire to settle, resolve, and release all existing or potential claims and disputes, in full and final settlement of all matters relating to the Project. As consideration for this Agreement, the Parties agree to waive any right to bring any litigation related to construction of the Project against another Party to this Agreement, including a waiver of all claims regarding alleged differing site conditions, design changes, utility conflicts and relocation issues, contract quantity reconciliations, extra work orders, force account work, and the amount owed by the City to Walsh. NOW, THEREFORE, for and in consideration of obligations and exchange of promises set forth herein, the Parties agree as follows: U I 0 y SETTLEMENT AGREEMENT Page 1 of 4 167098.1 AGREEMENT 1. Contingency and Effective Date. This Agreement shall be contingent upon final approval by the City Council of the City. This Agreement shall be effective as of the date such City Council approval is communicated to Walsh in writing ("the Effective Date"). The undersigned will recommend the Agreement for such approval. 2. Settlement Amount and Payment. The City shall cause to be paid to Walsh the sum of $1,425,000.00 (the "Settlement Amount"), inclusive of the remaining contract balance of $343,740.85. As part of this Agreement, the City agrees to pay $1,333,000 of the Settlement Amount no later than December 8, 2017; the remainder of the Settlement Amount shall be paid within thirty (30) calendar days of Council's approval of this Agreement, but not later than December 31, 2017, and the City shall make reasonable efforts to expedite such payments. The City shall have no obligation to make any payments until receipt of all completed Affidavits of Wages Paid forms submitted by Walsh to Labor & Industries for all subcontractors. Under Rule 171, all applicable sales tax shall have been paid by Walsh and this settlement reflects a comprehensive agreement between the Parties to settle all issues. The Settlement Amount constitutes payment for labor and services rendered for the building, repairing, or improving the street, road, easement, or right-of-way commonly known as Interurban Avenue South which is used by the City primarily for pedestrian or vehicle traffic and is, therefore, exempt from sales tax. The Parties will not be separately or individually responsible for any additional sales tax. 3. Subcontractor Releases. Within fourteen (14) calendar days of the signed Agreement, and prior to any payment due by the City, Walsh will provide "Affidavit of Wages Paid" forms to Labor & Industries for all subcontractors and provide a copy of the same to the City. After all forms are received, the City shall release the respective Performance Bond(s). Walsh shall defend, indemnify and hold all City officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses, suits, debts, obligations, promises, agreements, contracts, actions, causes of action, attorneys' fees, and demands of any and every nature whatsoever, known or unknown, which exist, have existed, or may have existed, or which hereafter can, shall, or may exist, arising out of or in connection with the payment or performance of a subcontractor or independent contractor hired, retained, or employed by Walsh, which pertain in any way to the Project. 4. Release. Except as otherwise provided in Paragraph 5 herein, the Parties hereby mutually release and forever discharge each other, as well as their respective officers, directors, parents, subsidiaries, affiliated companies, employees, insurers, sureties, bonding companies, contractors, subcontractors, attorneys, consultants, successors, assigns, and agents, past and present, and anyone acting on their behalf, from any and all debts, obligations, promises, agreements, contracts, actions, causes of action, claims, demands, and liabilities of any and every nature whatsoever, known or unknown, which exist, have existed, or may have existed, or which hereafter can, shall, or may exist, which pertain in any way to the Project. 5. Exceptions to Release. Notwithstanding the above, any rights arising out of latent defects or out of warranties required by the Contract Documents for the Project, and any defenses thereto, are not released by this Agreement. The City represents that it is not aware of SETTLEMENT AGREEMENT Page 2 of 4 167098.1 any existing defects or warranty -related claims or issues regarding the Project that are not being released by this Agreement. This Agreement also does not release any claim by the City against any third -party regarding the Project. This Agreement also does not affect any rights or obligations contained in the Contract Documents regarding the defense or indemnification of third -party personal injury or property damage claims. 6. City Letter. A representative of the City has signed and shall deliver to Walsh a letter regarding the Project in a form previously agreed upon by the Parties within two (2) days of entering into a signed Agreement. 7. Project Closeout and Change Order. The Parties shall cooperate to identify any outstanding as -built drawings, affidavits of wages paid, and certified payroll documentation required by the Contract Documents for the Project, if any, and Walsh shall submit the same. The City shall issue a final Change Order adjusting the Contract Price to reflect the Settlement Amount specified above, rescinding the assessment of Liquidated Damages, and extending the Contract Time to reflect the actual dates of Substantial Completion and Final Completion. 8. No Admission of Liability. Execution of this Agreement shall not constitute an admission by any Party of any liability of any kind. 9. Complete Agreement. This Agreement contains all the promises and covenants made by the Parties. Except as otherwise stated herein, this Agreement supersedes any and all prior documents, discussions, communications, representations, understandings, negotiations, agreements, or contracts by and between the Parties. It is intended that the only obligations which remain between the Parties are expressed in this Agreement. 10. Non -Reliance. In executing this Agreement, each Party warrants that it is relying solely on its own judgment and knowledge, and that it is not relying on any statement or representation made by any other Party or its agents. 11. Representation. The Parties acknowledge that they have been represented by counsel in the preparation of this Agreement, have been fully advised as to the legal effect of this Agreement, and have executed this Agreement freely and voluntarily. The Parties further acknowledge that all have had the opportunity to participate in the drafting of this Agreement. Thus, the principle that ambiguities are to be construed against the drafter shall not be applicable in any litigation concerning this Agreement. 12. Binding Agreement. This Agreement shall bind the heirs, successors, representatives, assigns, and affiliates of each Party. 13. Venue. Any dispute regarding this Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the Parties specifically understand and agree that venue shall be properly laid in King County, Washington. 14. Severability. The provisions of this. Agreement are severable, and if any part of it is found to be unenforceable, the other provisions remain fully valid and enforceable. SETTLEMENT AGREEMENT Page 3 of 4 167098.1 15. Authority. The individuals executing this Agreement on behalf of the Parties represent and warrant to the other Party that they have the authority to bind the Party on whose behalf they execute this Agreement, except as set forth in Section 1 herein. 16. Execution in Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original binding Agreement, and may be transmitted electronically. 17. Entire Agreement. This Agreement contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement. No provision of this Agreement may be amended or modified except by written agreement signed by the Parties. WALSH CONSTRUCTION COMPANY CITY OF TUKWILA, WASHINGTON II, LLC By: By: Print: Rio/ ,&) ErA s 3. Print: 4I tan Ek Its: Its: Dated: ///z7// 7 Dated: I ik,2o/;.D17 SETTLEMENT AGREEMENT Page 4 of 4 167098.1