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HomeMy WebLinkAboutEvans and Son, Inc. - Settlement and Full Release Agreement SETTLEMENT AND FULL RELEASE AGREEMENT THIS SETTLEMENT AND FULL RELEASE AGREEMENT (hereinafter the "Agreement "), is made and entered into between the City of Yakima (hereinafter the "City "), and Evans and Son, Inc., a Washington corporation (hereinafter "Evans and Son "), and James K. Evans, individually (hereinafter "Mr. Evans "). RECITALS WHEREAS, the City entered into a construction contract (hereinafter the "Contract) with Evans and Son to construct, improve, and complete the Kissel Park Project, City of Yakima Project No. 1800 (hereinafter "Kissel Park Project "). WHEREAS, during the course of the construction, the City executed a number of change orders under and pursuant to said construction Contract, including but not limited to a change order with Evans and Son for certain work to be performed on or in the vicinity of Kissel Park, Yakima, Washington. WHEREAS, Mr. Evans and Evans and Son have asserted various claims for additional compensation beyond that already paid by the City to Evans and Son for the work performed under and pursuant to said construction Contract. WHEREAS, it is the desire of the City, Mr. Evans and Evans and Son to settle and compromise any and all existing claims of Mr. Evans and Evans and Son against the City and also any and all existing claims of the City against Mr. Evans and Evans and Son in this Settlement and Full Release Agreement. It is understood that this settlement is a compromise of disputed claims, and that the releases and payments made under this Agreement are not to be construed as an admission of liability or fault by any party which is expressly denied. NOW, THEREFORE, in consideration of the matters set forth in this agreement, the City, Mr. Evans, and Evans and Son agree as follows: 1. Settlement Payment to Evans and Sons, Inc., of $77,500. Upon receipt of this executed SETTLEMENT AND FULL RELEASE AGREEMENT, City will deliver to Mr. Evans and Evan and Son (through their attorney of record, Charles C. Flower of Flower & Andreotti) a settlement check in the total amount of SEVENTY -SEVEN THOUSAND, FIVE HUNDRED DOLLARS ($77,500) payable to "Evans and Sons, Inc. ". Settlement and Full Release Agreement - 1 of 5 2. Retainage on Kissel Park Project. Although the retainage is not a part of the consideration for this Agreement, Mr. Evans and Evans and Son, at their convenience, will take any steps reasonably required to secure release of the retainage on the Kissel Park Project, including, but not limited to, compliance with any legal requirements for release of the retainage. 3. Release of City by Mr. Evans and Evans and Son and Release of Mr. Evans and Evans and Son by City. Release of City In consideration of the Seventy -Seven Thousand, Five Hundred Dollars ($77,500) settlement check described in Paragraph 1 of this Agreement and the mutual releases set forth in this Agreement, Mr. Evans and Evans and Son, and each of its current and former officers and employees, do hereby irrevocably and forever release, acquit, and discharge the City, its current and former elected officials, officers, directors, agents, attorneys, employees, successors, and assigns, of and from any and all liabilities, claims, cross claims, counterclaims, actions, suits, damages, penalties, costs, losses, expenses, interest, court costs, and attorneys fees of any kind or nature whatsoever, known or unknown, suspected or unsuspected, existing as of this date. Release of Mr. Evans and Evans and Son. In consideration of mutual releases set forth herein, except as set forth in Paragraph 4 below, the City does hereby irrevocably and forever release, acquit, and discharge Mr. Evans and Evans and Son, their officers, directors, agents, attorneys, employees, successors, and assigns, of and from any and all liabilities, claims, cross claims, counterclaims, actions, suits, damages, penalties, costs, losses, expenses, interest, court costs, and attorneys fees of any kind or nature whatsoever, known or unknown, suspected or unsuspected, existing as of this date. 4. Hold Harmless and Indemnification of City by Mr. Evans and Evans and Son. Mr. Evans and Evans and Son agree to hold harmless, defend, and indemnify the City of Yakima, its current and former elected officials, officers, directors, agents, attorneys, employees, successors, and assigns, from any and all liabilities, demands, taxes, claims, cross claims, counterclaims, actions, suits, damages, penalties, costs, losses, expenses, interest, court costs, and attorneys fees which arise from any agents, employees or subcontractors of Mr. Evans and Evans and Sons who provided labor, services, equipment or materials on the Kissel Park Contract. / / / /// / / / /// Settlement and Full Release Agreement - 2 of 5 5. Advice of Counsel. Each of the Parties hereby represents, acknowledges, and agrees that: a. Such Party has received advice from legal counsel of its own choosing prior to its execution of this Agreement; b. The legal nature and effect of this Agreement has been fully explained to it by such legal counsel; c. Such Party fully understands the terms and provisions of this Agreement and the nature and effect thereof; d. Such Party is relying solely upon the advice of its own independently chosen counsel in executing this Agreement; and e. Such Party has not relied upon any representation or statement of any other Party hereto, any employee or agent of any such Party, or counsel for any other Party in executing this Agreement. 6. No Admission of Liability. This Agreement is not, and should not be construed as, an admission of liability by any Party to any other Party. All Parties to this Agreement expressly deny any wrongdoing alleged as part of or in connection with any projects, contracts or claims. Neither this Agreement, nor the fact that a settlement has been reached, nor the consideration exchanged herein, shall be admissible into evidence against any Party as an admission of any liability and /or fault. Notwithstanding the immediately preceding sentence, this Agreement, if otherwise admissible, may be introduced into evidence at any proceeding between or among the Parties to enforce its terms. 7. Terms Contractual. The terms of this Agreement are contractual and are not mere recitals. 8. Severability. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, such provision shall not affect the validity of the remaining provisions of this Agreement. / / / /// / / / /// Settlement and Full Release Agreement - 3 of 5 9. Integration. This Agreement constitutes the entire agreement between the parties. No changes or additions to this Agreement shall be valid or binding upon any Party hereto unless such change or addition be in writing and executed by all the Parties. 10. Binding on Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, each Party and, as applicable, each Party's respective predecessors, representatives, agents, servants, heirs, affiliates, partners, intended beneficiaries, controlled corporations, employees, subsidiaries, successors, assigns, and all persons or entities acting in concert with any of them or for whom such Party has any equitable, custodial, or trust obligations. 11. No Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by any Party hereto to any person or entity without the prior written consent of all of the other Parties. In the event that such prior written consent to an assignment is granted, the assignee shall assume all duties, obligations, and liabilities of the assigning Party as stated herein. 12. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which constitute one and the same Agreement. 13. Representation of Authority. Each Party represents and warrants that it has caused this Agreement to be executed by its duly authorized agent, acting within the scope of the agent's authority. 14. Governing Law. This Agreement shall be governed by and construed in accordance the laws of the State of Washington. 15. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of the State of Washington for Yakima County. Settlement and Full Release Agreement - 4 of 5 DATED this day of August, 2008. EVANS AND SON, INC.: i By _AL._ . f 0.— ,- .- ---- -- �James K. Evans / Its: lace. iSLt &\ t esKvansvidually APPROVED AS TO FORM: A ,fir 7\ "--L-totrz., Charles C. Flower Flower & Andreotti Attorney for Evans & Son and James K. Evans (3c=p16.i'a1 iTh DATED this day of must, 2008: CITY OF YAKIMA: By: '\`'� R. A. Zais, Jr., City Manager APPROVED AS TO FORM: O Robert C. Tenney Meyer, Fluegge & Tenney, P. Attorney for City of Yakima Settlement and Full Release Agreement - 5 of 5