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Home My WebLink About5707 RESOLUTION NO. 5707 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, APPROVING THE SETTLEMENT AGREEMENT WITH ROAD CONSTRUCTION NORTHWEST, INC. WHEREAS, the City of Auburn contracted with Road Construction Northwest, Inc. (RCNW) for work related to the 2020 Arterial Street Preservation Project (Project No. CP1926); and WHEREAS, RCNW filed a contract-related claim with the City; and WHEREAS, pursuant to the contract, and the Parties interest to resolve this matter, a mediation was held on March 2, 2023; and WHEREAS, the Parties' reached a settlement agreement, which is attached to the resolution subject to approval by the City Council. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, RESOLVES as follows: Section 1. The Mayor is authorized to execute the Settlement Agreement attached hereto as Exhibit A. Section 2. The Mayor is authorized to implement those administrative procedures necessary to carry out the directives of this resolution. // // Resolution No. 5707 March 3, 2023 Page 1 of 2 Rev.2019 Section 3. This Resolution will take effect and be in full force on passage and signatures. Dated and Signed:c"c ON Lo‘A. CITY OF AUBURN NANC ? B' CKUS, MAYOR ATTEST: APPROVED AS TO FORM: .� (ejide *MA') Shawn Campbell;MMC, City Clerk Kendra Comeau, City Attorney Resolution No. 5707 March 3, 2023 Page 2 of 2 Rev.2019 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is entered into as of the 2nd day of March, 2023, by and between the CITY OF AUBURN ("City") and ROAD CONSTRUCTION NORTHWEST, INC, its parent, predecessors, subsidiaries, affiliates, officers, and employees (collectively known as "RCNW"). The City and RCNW are hereinafter referred to as "the Parties." RECITALS A. The City contracted with RCNW (the "Contract") for the 2020 Arterial Street Preservation project(the"Project"). B. RCNW filed a construction contract-related claim with the City pursuant to Project No. CP1926. C. The Parties engaged in a civil mediation on March 2, 2023 with mediator Chris Soelling and pursuant to Civil Rule 2A the parties have agreed to settle this case. E. The City denies it is liable for the claims asserted by RCNW. F. All Parties desire to settle all claims related to Project No. CP1926 on the terms and conditions described in this Agreement in recognition of the time, expenses, and resources involved in litigation and as such the settlement is in the public interest. Therefore,the Parties agree as follows: TERMS 1. Subject to City Council Approval. This Agreement recognizes an agreement between the Parties at mediation. Auburn City Council has final approval and the settlement agreement shall not be final and enforceable unless and until the City Council adopts a resolution authorizing the City to enter into the settlement agreement. Assuming the City's Mayor approves and adds to the Council's agenda, the City will present this Agreement to the Auburn City Council at the next City Council meeting. This Agreement shall become null and void if the Agreement is not presented to the City Council for consideration within the next two (2) regularly scheduled City Council meetings. 2. Payment Terms. Conditioned on the approval of the Auburn City Council, the City shall pay RCNW the sum of Three Hundred and Four Thousand Two Hundred Sixty One and 00/100 Dollars ($304,261.00 US) (the "Settlement Amount"), and will use their best efforts to pay RCNW within thirty (30) days but no later than forty-five (45) days from March 2, 2023. The City will contact RCNW via email to George Tucker, george@rcnw.com, that the check payment is ready for pickup and RCNW will collect the check-in person at the City of Auburn City Attorney's Office, City Hall, 25 W.Main St. Auburn, WA 98002. 3. Waiver and Unconditional Release. Except in regards to the City's warranty rights arising from the terms of the Contract, the Parties do hereby forever release, acquit, and discharge each other and each of its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, expenses and compensation whatsoever, which the undersigned now have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen consequences thereof arising from or resulting from the Contract and/or the Project; and that this settlement includes a total release of all damages whatsoever, including,but not limited to,punitive, consequential, direct, and all law violations. It is understood and agreed that this settlement is the compromise of a disputed claim, Page 2 of 5 and that the payment of the Settlement Amount is not to be construed as an admission of liability on the part of the Parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy their peace. In consideration of payment of the Settlement Amount, RCNW represents, warrants and agrees that it will satisfy any and all lien claims against the above sum, including any and all sub- contractor liens and claims. 4. Representation. The City of Auburn is represented herein by City Attorney, Kendra Comeau. RCNW is represented herein by John Welch. The Parties acknowledge that their respective attorneys have fully advised them concerning their rights with respect to the execution of this Agreement and its effects and that they understand the same; and that the named attorneys are authorized and directed to take all necessary action to dismiss with prejudice all claims and causes of action arising under Project No. CP1926 without costs or attorneys' fees to any Party, each Party to bear that Party's own fees and costs. 5 Dismissal of all claims. The Parties agree to not file a lawsuit related to Project No. CP1926. 6 Enforcement. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Washington. Venue for any disputes relating to this Agreement shall be had in King County Superior Court, Seattle, Washington. 7 Jointly Drafted. This Agreement has been drafted jointly by the Parties following negotiations between them. It shall be construed according to its terms and not for or against any Party. 8 Entire Understanding. This Agreement contains the entire understanding of the Page 3 of 5 Parties in connection with the subject matter of this Agreement and it supersedes and replaces all prior negotiations, statements, and representations concerning the subject matter of this Agreement except as expressly contained in this Agreement. 9. Severability. If any provision of this Agreement is deemed by law to be void, invalid, or inoperative for any reason, or any phrase or clause within such provision is deemed by law to be void, invalid, or inoperative,that phrase, clause, or provision shall be deemed modified to the extent necessary to make it valid and operative, or if it cannot be so modified, then such phrase, clauses, and provisions shall be deemed severed from this Release, with the remaining phrases, clauses, and provisions continuing in full force and effect as if the Agreement had been signed with the void, invalid, or inoperative portion so modified or eliminated. 10. Authority. The Parties acknowledge and represent that they are effecting this settlement and executing this Agreement after having received full legal advice to their rights from legal counsel, and hereby warrant that they have the sole right and exclusive authority to perform their respective obligations under this Agreement and receive the benefits specified herein, and that no other person or entity has or has had any interest in the claims released herein, nor have any of the claims referred to herein been sold, assigned, transferred, conveyed or otherwise disposed of. 11. Descriptive Headings. Titles to paragraphs in this Agreement are for informational purposes only and are not intended to limit or amplify the content of any paragraph. 12. Execution. This Agreement may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts shall constitute one agreement. Page 4 of 5 13. Amendment. This Agreement may not be amended, altered or modified, except by a written amendment executed by all Parties. DATED this 2nd day of March,2023. Road Construction Northwest,Inc. The City of Auburn B • // I_ k ', By D. By F anyer, President, Road Construction f Name Northwest,Inc. r Title Page 5 of 5