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Home My WebLink AboutCAG2002-0504 - Original - Harding ESE, Inc. - S 196th Street Bridge Settlement & Accept of Tender - 09/04/2002 09/04/02 15 13 FAX LPSL FL 98 09/04, 1002 14, 312 30644-1973 LAW OFFICES PACE 63 SETTLEMENT AGREEMENT",ACCEPTANCE OF TENDER OF DEMNSE AND MEMNWCATION SEP 0 4 2002 AND MUTUAL RELEASE } This Settlement Agreement,Acceptance of Tender of Defense and Indemnification, and Mutual Release("Agreement)is entered into by Harding ESE, Inc, ("Harding") and the City of Kent("City")to resolve claims arising between them as a result of the lawsuit initiated by Frontier Kemper Constructors, Inc. ("Frontier')in Fronder Kemper Constructors, Inc v. City of Kent,King County Cause No. 01-2-18201-3 KNT(the `Frontier Lawsuit'). BACKGROUND In May 1999,Battling and the City entered into a Construction Management Services Contract under which Handing agreed to provide certain professional services during the construction of the S. 196s Street Bridge in Kent, Washington. By prior agreement, Harding had provided design services to the City for the bridge. The construction contractor.Frontier,claimed that it incurred damage caused by the actions or inactions of the City or Hardin& Frontier initiated the Frontier Lawsuit in July 2001,The City filed a third party complaint against Harding, seeking to pass through any liability for Frontier's damages to Harding. By way of Change Order I5,dated July 25,2002, the City and Frontier reached agreement on an adjustment to the contract price for any and all claims against the City, other than those claims that"arise from or are related to desiga issues, submittal review, administration,processing, coordination,modification of and changes to the bridge superstructure steel and the seismic isolator beatings by Harding ESE on behalf of the City-" After the execution of Change Order 15,the City tendered the remaining Frontier claim to Harding and requested that Harding defend the City and indemnify it from any liability arising from this claim. The parties to this Agreement now wish to fully and finally resolve any claims that each may have against the other arising out of the Frontier Lawsuit, as fully set forth below. AGREEMENT To that end,the parties hereby agree as follows: - -- 1. ,Acceptance of Tender. Harding hereby unconditionally accepts the City's tender _ of defense and indemnification in the bonier Lawsuit, effective the date that this 09259 00101 0284302 t 09/04/02 15.13 FAX LPSL FL 38 05I0a;2tf12 14;37 20644715•d L4,W OFFICES PAGE 64 Agreement has been executed by the City and ratified by the City Council. From the effective date of this Agreement forward,Harding shall be fully responsible for developing, executing and financing the defense of the Frontier Lawsuit against the City, for making any decisions regarding the settlement or other resolution of the Frontier Lawsuit,for paying any resultant settlement or judgment, and for making all decisions regarding any appeals from any adverse judgment. The City shall have no further risk associated with the Frontier Lawsuit and Harding unconditionally assumes all such risks, regardless of any judicial decisions in the Frontier Lawsuit,new information that may be learned in the Frontier Lawsuit or any other unknown matters that may effect the risks assumed by Harding,pursuant to this Agreemeat 2. Joint Defense Agreement. It is the intent of the parties to this Agreement that Harding shall be given access to and shall be entitled to fully utilize, in its discretion, all evidence and work-product compiled by the City, including witness disclosures made by the City's employees, and work-product developed by the City's current lawyers and experts in defending against the Frontier Lawsuit. Any documents considered to be work-product or otherwise privileged will be so marked and will not be disseminated to any other person or entity unless the party providing the _ document agrees to the production or production has been ordered by a court of competent jurisdiction. The parties will provide notice to each other and the opportunity to object to the production to third parties of any material for which a claim of privilege can be properly made. Any disclosure or exchange of information between the parties in connection with the defense of the Frontier Lawsuit shall be accomplished pursuant to the "common interest" or'yoint defense"doctrines. 3. AQreenient to Cooperate with Defense To assist with Harding's defense in the Frontier Lawsuit,the City shall: a. Provide Harding and its counsel access to City documents and other pertinent materials,including any audit conducted by the City of Fronber's records on the S. 1960' Street Bridge Project; b_ Make City fact and expert witnesses available for interviews, depositions, and trial,ifneeessary, e. Assign to Harding any right, claim, and defense it may have against Frontier in the Frontier Lawsuit; d. Consent to a withdrawal of The City's current counsel in the Frontier Lawsuit and stipulate to a substitution of counsel naming Skelleuger Bender, P.S., as cowisel for the City; 09M 00101 eh2a9302 2 09/04/02 15 13 FAX LPSL FL 38 Q-9,04/ZeU 14:37 20E447197�1 LAW OFFICES PAGE 05 e. Harding shall be responsible for all costs and expenses that may be incurred for expert services and witness fees, effective the date of this Agreement, 4. Pa a t_ In consideration for the acceptance of the tender and the risks inherent therein,the City sball pay to Harding the suns of$70,000. The payment shall be made within 30 days from the effective date of the Agreement. 5 Dismissal with Prejudice. The City shall execute a stipulated order of dismissal, dramissing with prejudice alll claims it has asserted against Harding in the Frontier Lawsuit. 6. Att9may Fees and Costs. a. Prior to the Effective Date of this Agreement The City and Harding shall each bear their own attorney fees, litigation costs,and expert witness fees and costs,which were incurred prior to the effective date of this Agreement b. ARer the Effective Date of this A reemeitt Harding assumes responsibility only for litigation expenses,which it authorizes for the City's defense in the Frontier Lawsuit after the effective dale of this Agreement. Should the City seek legal counsel for any reason related to the Frontier Lawsuit,which is mdepmdent of the legal representation provided by Harding for the City's benefit under this Agreement,the City agrees that Harding shall have no responsibility or liability to reimburse the City for such legal services. 7. Mons-Release_ In exchange for the Acceptance of the tender,the payment, and the dismissal with prejudice,Harding and the City heroby release each other, their employees, officers,directors and agents from any liability,claim or damage,relating to or arising from the 196th Street Bridge Project,the Frontier/City construction contract, the Frontier Lawsuit and any claims that have been brought or could have been brought in the Frontier Lawsuit, including but not limited to any contractor,subcontractor, materialman or supplier(s)claims. The generality of the foregoing mutual release is limited only by the following: it does not apply to any presently unknown but timely claims the City may have in the future, such as latent design defect claims,which are not covered by this mutual release and for which Harding may allegedly be responsible. 8. No Admission of Liability. It is understood and agreed to by the parties that this settlement is a compromise of disputed claims, and shall not be construed as an admission of liability on the part of either Harding or the City. 9. Govorrting Law. This Agreement will be governed by and construed exclusively in accordance with the laws of the State of Washington. Should either party initiate litigation to enforce any provision of this Agreement,vanue for any such action shall be in the King County Superior Court and the each party shall be responsible for its attorney's fees and costs. 10. Countaroerts This Agreement maybe cxccutcd in one or adore eouutcrparts, each 09259 00101 eh2843a2 3 09✓04/02 15 13 FAX LPSL FL 38 05/v14l.200Z 14.37 2064471973 LAW OFFICES FA5E 06 of,wluch shalt be deemed an original,but all of which together constitute one and the same instrutnent, binding on the parties. 11. Additional Documents and Actions The patties agree to cooperate fully and execute any and all additional documents and take all additional actions that may be necessary or appropriate to give full force and effect to the terra and intent of this Agreement. 12. 1nte ton-Entire A geoment and Bindin?Effect. This Agreement supersedes all prior discussions or agreements and contains the entt a agreement between Harding and the City with regard to the matters set forth in it_ This Agreement shall be binding upon and inure to the benefit of the executors, administrators,personal representatives, heirs,successors and assigns of each. Executed as of the dates written below. The City of Kent HARDING P-SE,Inc. By. yjo/;- BY - Title. Title: Jmt w41-167 MA-"- Date: �(�Aj02 Date: 09259 00101 eh284302 4