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HomeMy WebLinkAboutResolution_Authorize Directors Signature_Blews Settlement AgreementKITTITAS COUNTY DEPARTMENT OF PUBLIC WORKS 2022 AGENDA STAFF REPORT AGENDA DATE: March 1, 2022 ACTION REQUESTED: Request to Approve a Resolution to Authorize the Director's Signature on the Construction Settlement Agreement with Blew's Construction for the Upper County Maintenance Facility BACKGROUND: For the past several months, Public Works with support from the Prosecuting Attorney's Office, has been negotiating a settlement agreement with Blew's Construction (Upper County Shop). The settlement haltE legal action initiated by Blew's in Grant County. The initial settlement amount on the summons was $783,719.12. The signed settlement with Blew's is for $247,201. Final acceptance of the building commencing upon our signature of the agreement. INTERACTION: Public Works; Prosecuting Attorney's Office RECOMMENDATION: Approve the Resolution to Authorize the Director's signature on the Blew's Construction Settlement Agreement for the Upper County Maintenance Facility. HANDLING: Return one original to Public Works ATTACHMENTS: Resolution; Construction Settlement Agreement LEAD STAFF: Mark R. Cook, Director BOARD OF COUNTY COMMISSIONERS COUNTY OF KITTITAS STATE OF WASHINGTON RESOLUTION 12 AUTHORIZING THE PUBLIC WORKS DIRECTOR'S SIGNATURE ON THE BLEW'S CONSTRUCTION SETTLEMENT CLAIM FOR THE UPPER COUNTY MAINTENANCE FACILITY CONSTRUCTION WHEREAS: Blew's Construction filed a summons and complaint against Kittitas County in Grant County dated August 26, 2021; and WHEREAS: Public Works has worked with Blew's and the Prosecuting Attorney's Office reducing the claim from $783,719.12 to $247,201; and WHEREAS: Settlement of the construction claims removes subcontractor disputes with the County and contemplates all necessary pending releases from Washington State Department of Labor and Industries. NOW, THEREFORE BE IT RESOLVED: The Board of County Commissioners, after due consideration, does hereby authorize the Director of Public Works to sign the Blew's Construction Settlement Agreement in the amount of $247,201. DATED this 1St day of March 2022, at Ellensburg, Washington. Attest: ❑ Clerk of the Board- Julie Kjorsvik BOARD OF COUNTY COMMISSIONERS KITTITAS COUNTY, WASHINGTON Laura Osiadacz, Chairman Cory Wright, Vice -Chairman ❑ Deputy Clerk of the Board- Mandy Buchholz Brett Wachsmith, Commissioner Execution Copy THIS SETTLEMENT AGREEMENT AND RELEASE ("Settlement Agreement") is made by and between Blew's Construction, Inc., A Washington corporation ("Blew's") on the one hand, and Kittitas County, a subdivision of the State of Washington ("County") on the other. Collectively, Blew's and the County are referred to as the "Parties," and each separately or individually as "Party." In consideration of the promises and covenants exchanged herein, the Parties hereby agree as follows: RECITALS A. The Parties wish to settle and resolve finally all claims and causes of action asserted in the lawsuit entitled Blew's Construction, Inc., v. Kittitas County, filed in Grant County Superior Court of the State of Washington under cause no. 21-2-00525-13 ("Lawsuit"). NOW, THEREFORE, in consideration of the foregoing and the following covenants, obligations, undertakings and releases, the sufficiency of which consideration is hereby acknowledged, the Parties mutually agree as follows: AGREEMENT 1. Payments 1.1 Within fifteen (15) business days after mutual execution of this Settlement Agreement, Blew's shall make payment to Kittitas County for outstanding utility bills in the amount of $3,963.80. 1.2 Within fifteen (15) business days after mutual execution of this Settlement Agreement, Kittitas County shall make the following payment to Blews in the amount of $247,201.00, plus Washington State Sales Tax. 2. Terms 2.1 Blew's is to provide certification that all subcontractors have been paid and there are no outstanding liens. 2.2 Both Parties shall Release all claims for interest, penalties, costs, expenses and attorney's fees incurred. 2.3 Blew's recognizes 9/14/2021 as substantial completion date and all warranties that reference substantial completion will recognize this date. Blew's will advise its subcontractors regarding the date of substantial completion for warranty purposes. 2.4 Blew's shall dismiss, pursuant to CR 41(1)(b) its action filed in Grant County Superior Court under cause No. 21-2-00525-13 within fifteen (15) business days of receipt of payment, and release all claims against Kittitas County. Page 1 of 5 Execution Copy 2.5 Blew's is to provide affidavit of wages paid in accordance with state law for Blew's and all subcontractors. 2.6 Blew's shall release Kittitas County from the landscape subcontractor acknowledging the reduction in payment as paid in full for non -conforming work. Kittitas County releases Blew's and its landscaping subcontractor from any further landscaping work or warranty work relating to landscaping. 2.7 The Performance Bond will be held by Kittitas County until September 14, 2022, but the parties recognize this Settlement Agreement neither increases nor decreases the scope of the Performance Bond. 2.8 Kittitas County shall file the Contractor's completion of Public Works Contract with the three state agencies immediately upon receipt of Affidavits and Lien Waivers from Blew's. 2.9 At the first County Commissioners' meeting where approval to sign this agreement is granted, Kittitas County shall, pursuant to RCW 39.08.030 by affirmative action of the County Commission, accept the work. Mutual Releases 3.1 The Parties, on behalf of themselves, and on behalf of any heirs, successors, predecessors, agents, assigns, insurers and representatives, hereby mutually and irrevocably release and discharge the each other, individually and collectively, and each and all of the Parties' successors, predecessors, assigns, transferees, agents, trustees, attorneys, insurers, consultants, and representatives from any and all demands, claims, counterclaims, actions or causes of action, rights, obligations, duties, damages, suits, payments, accounts, debts, covenants, promises, agreements, judgments, liabilities, losses, response or investigative costs stemming from the construction contract, and its execution, that is the subject of Grant County Superior Court cause No. 21-2-00525-13. This mutual release includes all known and unknown claims and claims which were filed or could have been filed in the Grant County action. 3.2 Pursuant to this Settlement Agreement, all claims and rights of whatever kind with respect to the Parties' contract above-mentioned and their performance thereunder are fully and completely released, waived, satisfied, discharged and settled. No Admission of Liability 4.1 Neither this Settlement Agreement nor any term herein constitutes and shall not be construed as an admission of liability as to any claim, theory or factual allegation made against any Party. No consideration provided hereunder, including any payment or the grant of any release, shall be considered an admission by or against any Party and no past or present wrongdoing on the part of the Parties shall be implied by consideration, release, or this Settlement Agreement. 5 Indemnification. 5.1 Blew's agrees to defend, hold harmless and indemnify the County from and against any and all liabilities, claims, damages, including consequential damages and reasonable Page 2 of 5 Execution Copy attorneys' fees, penalties, adverse tax consequences, liens, actions, costs, expenses, suits, losses, and/or judgments, which may be brought or made by or on behalf of any of the subcontractors of Blew's or their subcontractors. 6 Notices. 6.1 All notices or other communications under this Settlement Agreement shall be in writing and emailed to all the email addresses set forth below. All such notices and communications shall be deemed issued and delivered on the date sent. 6.1.1 For the County: mark.cookna,co.kittitas.wa.us and neil.caulkinsCcr�,co.kittitas.wa.us; and 6.1.2 ForBlew's Construction, Inc.: ieffCablewsconstruction.com and rcamnbelIggampbell-bissell.com 7 Cooperation. 7.1 The Parties agree to cooperate fully and to take all additional actions which may be reasonably required to effectuate efficiently the terms of this Settlement Agreement. 7.2 Should the deadlines herein not be complied with, this Settlement Agreement is null and void unless the non -breaching Party waives the instance of non- compliance. 8 Miscellaneous Provisions. 8.1 Each Party represents and warrants that no other person or entity has, or has had, any interest in the claims, demands, obligations or causes of action referred to in and released pursuant to this Settlement Agreement; that each Party has the authority to execute this Settlement Agreement; and that each Party has not sold, assigned, transferred, conveyed or otherwise disposed of, by operation of law or otherwise, any of the claims, rights, demands, obligations or causes of action referred to in this Settlement Agreement. 8.2 Each individual signing this Settlement Agreement warrants that they have the full authority, and are duly authorized and empowered, to execute this Settlement Agreement on behalf of the Party for which they sign. 8.3 In entering into this Settlement Agreement, no Party has made any representations or warranties or promises, and no Party has relied upon any representations or warranties, other than those representations and warranties and promises as may be expressly stated in this Settlement Agreement. 8.4 This Settlement Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, heirs, beneficiaries, administrators, executors, successors and assigns. 8.5 The Parties represent and acknowledge that they have read this Settlement Agreement and fully understand and agree to its terms. The Parties are satisfied that the terms and Page 3 of 5 Execution Copy conditions of this Settlement Agreement are fair, adequate and reasonable. The Parties were afforded and had the full and unfettered opportunity to consult legal counsel of their choosing, and to obtain any and all legal advice they desired. For purposes of its interpretation or construction, this Settlement Agreement is not drafted by any Party hereto, but rather is the subject of negotiation and agreement among the Parties. 8.6 If any provision of this Settlement Agreement, is held, for any reason, to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be modified to the extent necessary to render it valid and enforceable, and as modified that provision and the remainder of this Settlement Agreement shall, nonetheless, remain in full force and effect. The invalidity of any provision of this Settlement Agreement shall not affect other provisions or applications of this Settlement Agreement that can be given effect without the invalid provision or application and, to this end, the provisions of this Settlement Agreement are severable. 8.7 This Settlement Agreement may not be changed, amended, modified, terminated, waived or discharged except in a subsequent written agreement signed by all of the Parties. 8.8 A waiver of any term of this Settlement Agreement shall operate as a waiver only for the specific occasion as to which the waiver occurs, and all terms of this Settlement Agreement shall otherwise continue to be fully effective and operable as to any other occasion or occasions. 8.9 This Settlement Agreement will be effective when fully executed by the Parties and counsel for each Party has been delivered a fully -executed copy (the "Effective Date"). This Settlement Agreement may be executed in counterparts (including facsimile and/or email/PDF) that, taken together, will be effective as if they were a single document. 8.10 This Settlement Agreement shall be governed and construed in accordance with the laws of the State of Washington, without regard to principles of conflicts of laws, as applicable to agreements made and to be performed entirely within Washington. The prevailing party in any action arising from or relating to this Settlement Agreement shall be entitled to reasonable attorneys' fees and costs. 8.11 The Parties consent to the personal jurisdiction of the jurisdiction of Superior Court ofthe State of Washington in and for Grant County as the sole judicial forum for the adjudication of any matters arising under or in connection with this Settlement Agreement. 8.12 This Settlement Agreement sets forth the entire agreement and understanding between the Parties concerning the subject matter set forth herein, and merges all prior discussions between them, concerning its subject matter. The Parties expressly acknowledge and agree that there are no conditions, understandings, warranties, agreements, definitions, promises or representations, whether written or oral, between or among them with respect to this Settlement Agreement or its subject matter other than as expressly provided in this Settlement Agreement. Page 4 of 5 Execution Copy IN WITNESS WHEREOF, the Parties hereto have duly executed this Settlement Agreement effective as of the Effective Date provided for herein. on behalf of Blew's on behalf of Kittitas County Title Page 5 of 5