HomeMy WebLinkAboutEC16-146 - Original - M.A. Mortenson Company - Showare Ice Plant Settlement - 04/12/2016 �
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CONTRACT COVER SHEET
This is to be completed by the Contract Manager prier to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name: M.A. Mortenson, Gateway Mechanical Industrial, Vector Industries
Vendor Number:
3D Edwards Number
Contract Number: GG 1 - 1
This is assigned by City Clerk's Office
Project Name: ShoWare Settlement Agreement
Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment El Contract
0 Other: Settlement Agreement
Contract Effective Date: April 21, 2616 Termination Date: N/A
Contract Renewal Notice (Days): N/A
Number of days required notice for termination or renewal or amendment
Contract Manager: lien Wolters Department: ECD
Contract Amount: $225,000
Approval Authority: [ Department Director M Mayor ❑ City Council
Detail: (i.e. address, location, parcel number, tax id, etc.):
As of: 08/27/14
UTTLEMENT AGRFEMEHT A DM RELEASE
This Settlement Agreement and Release("Agreement")is entered into by,and binding
upon,the CITY OF KENT,a State of Washington municipality(the"City"),M.A.
MORTENSON COMPANY,a Minnesota Corporation("Mortenson"),and GATEWAY
MECHANICAL SERVICES, INC.,PACE INDUSTRIAL(USA),INC.,VECTOR
INDUSTRIES,INC., (collectively"Pace")and THE HANOVER INSURANCE COMPANY,
BOND NO. 1754043("Hanover"). For purposes of this Agreement,the City,Mortenson,Pace
and Hanover may be referred to individually as a"Party"and collectively as the"Parties." For
purposes of this agreement,Mortenson,Pace and Hanover may also be referred to individually as
a"Defendant"and collectively as the"Defendants."
I. RECITALS
WHEREAS,in or about August of 2007,the City and Mortenson entered into a
construction contract,whereby Mortenson agreed to serve as the general contractor/
construction manager for the Kent Events Center Project(the"Project"),subsequently named the
ShoWare Events Center.
WHEREAS,Mortenson entered into a subcontract with Pace to,among other things,
design and construct an ice refrigeration system(the"Ice Plant")that would be used to chill the
ice rink within the Project.
WHEREAS,the Parties have a dispute regarding alleged deficiencies in the design and
construction of the Ice Plant.
WHEREAS,the City subsequently commenced an action against Mortenson,FIC and
Travelers,related to these allegations,in the Superior Court for King County,Washington(the
"Court"),and entitled City of Kent v. M.A. Mortenson, et al., Cause Number 15-2-27049-4 KNT
(the"Lawsuit").
WHEREAS,in the Lawsuit,Mortensen filed a third party Complaint against Pace and
Hanover.
WHEREAS,the Parties wish to resolve fully and finally as among them,without
admission or adjudication of any issue of fact or law,all claims asserted,or which could have
been asserted,known and unknown,and related to the Project.
NOW,THEREFORE,in consideration of and in reliance upon the definitions,recitals,
mutual promises,covenants, understandings and obligations set forth herein and other good and
valuable consideration,the receipt and sufficiency of which is hereby acknowledged,and
intending to be legally bound hereby, the Parties mutually agree as follows:
II. AGREEMENT
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1. PAYMENTS
1.1 In consideration of the covenants set forth herein,the Defendants agree to pay the
City the sum total of Two-Hundred Twenty-Five Thousand Dollars(US)and Zero Cents
(US$225,000),within thirty(30)days of execution of this Agreement by all Parties,according
to the following schedule:
Zurich American Insurance Company: $150,000;
Great American Insurance Company: $25,000;
Pace:$25,000;and
Mortenson:$25,000.
1.2 Payment of the amounts described in paragraph 1.1 shall be made by check,wire
transfer or EFT. Insurance company policy requires a signed settlement and release agreement
prior to issuing any settlement check.
2. MUTUAL RELEASE OF CLAIMS
2.1 Effective upon full payment of all amounts described in paragraph 1.1, and execution
of this Agreement,the Parties hereby mutually and irrevocably release and forever discharge
each other and each other's past,present,and future agents,assigns,officers,employees,
directors,successors,affiliates,and/or any other person or entity asserting claims by,through or
on their behalf,from any and all claims of any nature,demands, suits,obligations,costs,
damages,losses,claims for sums of money,rights,liability,actions and causes of action of any
nature,known or unknown,and that are in any way related to or alleged to arise out of the design
and construction of the Project,including the claims asserted in the Lawsuit.
2.2 The releases described in this Agreement extend to all claims that any of the Parties
may have as an additional insured on policies issued to Pace by Zurich North America or Great
American Insurance Company. The City does not,by these releases,release any claims it may
have as to other insurance policies generally applicable to the Project or to ShoWare Center,
including any first party property policies held by the City.
2.3 The releases described in this Agreement shall be binding upon and shall inure to the
benefit of the licensees, agents,successors and transferees of the Parties released hereunder,
whether by license,sale,merger,sale of stock,insolvency,sale of assets,bankruptcy,operation
of law,or,without limitation,otherwise.
3. DISMISSAL OF CLAIMS
3.1 The Parties agree that upon timely payment and delivery of the above settlement
payments to the City,counsel for the City shall prepare and file with the Court a stipulated order
of dismissal of the Lawsuit,including all claims and third party claims,with prejudice,with the
Court in the Lawsuit.
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4. NON-ASSIGNMENT OF RIGHTS
4.1 The Parties represent and warrant that they have not assigned,transferred,conveyed,
sold or purported to assign,transfer,convey,or sell to any entity or person any of the claims
released in this Agreement.
5. ATTORNEYS' FEES
5.1 The Parties agree to pay all of their own attorney and expert fees and costs associated
with the Lawsuit,and execution of this Agreement.
5.2 In the event that any Party is required to take action to enforce the terms of this
Agreement,that Party shall be entitled to their reasonable attorney fees and costs.
6. CHOICE OF LAW AND VENUE
6.1 This Agreement is governed by the laws of the state of Washington without regard to
its choice of law rules. The exclusive jurisdiction and venue for any dispute regarding the
interpretation or enforcement of this Agreement shall be the Superior Court of King County,
Washington.
7. MISCELLANEOUS PROVISIONS
7.1 This Agreement is the result of compromise and accord,and shall not be considered
an admission of liability or responsibility by any of the Parties.
7.2 The Parties understand,represent,and warrant that they enter into this Agreement
upon the legal advice of their attorneys,that said attorneys have explained the terms of this
Agreement,and that each Party has read,fully understands,and knowingly and voluntarily
accepts all terms of this Agreement.
7.3 This Agreement,or any uncertainty or ambiguity herein, shall not be construed
against any Party,but shall be construed as if all Parties to this Agreement prepared the
Agreement.
7.4 This Agreement is an integrated agreement and contains the entire agreement
regarding the matters herein between the Parties. No representations, warranties,or promises
have been made or relied on by any Party other than as set forth herein. This Agreement
supersedes and controls any and all prior communications between any of the Parties or their
representatives relative to the matters contained herein.
7.5 This Agreement may be executed in any number of counterparts,each of which
when executed and delivered shall be deemed an original,and aII such counterparts shall
constitute one and the same instrument.
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7.6 Should any provision or portion of this Agreement be held unlawful or
unenforceable,the balance of this Agreement shall nonetheless in all respects remain binding and
effective and shall be construed to be in full force and effect to the extent lawfully permissible
and consistent with the Parties' intent.
7.7 All Parties agree to cooperate fully and execute any and all supplementary
documents and to take all additional actions which may be necessary or appropriate to give full
farce and effect to the basic terms and intent of this Agreement.
7.8 The signatories to this Agreement who sign on behalf of another hereby warrant that
they have the authority to sign on behalf of said entities.
7.9 This Agreement shall become effective immediately following execution by all of
the Parties.
IN WITNESS WHEREOF,the Parties hereto by their duly authorized representatives affix their
signatures as of this day of April,2016.
DATED: l� �6 CITY OF KENT
By:
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DATED: M.A.MORTENSON COMPANY
By:
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DATED: GATEWAY MECHANICAL SERVICES,INC.
By:
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DATED: VECTOR INDUSTRIES, INC..
By:
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DATED: PACE INDUSTRIAL,INC.
By:
Its
DATED; HANOVER INSURANCE COMPANY,
BOND NO. 1754043
By:
Its
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