2022/08/31 Council Agenda Packet

RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") made by and between the City of Everett ("City") and Thompson Metal Fab, Inc. in its own capacity and as the assignee of claims and causes of action previously owned by Interwest Construction, Inc. ("TMF"). RECITALS 1. The City contracted with Interwest Construction, Inc. ("ICI") to construct the Grand Avenue Bridge Project in Everett, Washington (the "Project"). 2. ICI and TMF entered into a Purchase Order for steel work on the Project ("Purchase Order"). 3. TMF contends it incurred certain losses and damages related to the Purchase Order in connection with its work on the Project which TMF contends were primarily caused by the acts or omissions of the City or others for whom the City may be responsible (the "TMF Claims"). The TMF Claims are as set forth in TMF's letter to ICI dated March 24, 2021. 4. On or about April 1, 2021, ICI on its own behalf and on behalf of TMF filed a Formal Claim with the City pursuant to Section 1-09.11(2) of the WSDOT Standard Specifications for losses or damages allegedly incurred in connection the Project (the "ICI Formal Claim"). The ICI Formal Claim sought recovery of $5,825,618 inclusive of the sum of $1,667,467 allocated to the TMF Claims. 5. On or about March 23, 2022, ICI and TMF entered into that certain Claims Prosecution Agreement in which, inter alia, ICI assigned all of ICI's rights of potential recovery related to the Project, including but not limited to the ICI Formal Claim, to TMF (the "Claims Prosecution Agreement"). 6. The Parties to this Agreement have reached a full and final settlement. The purpose of this Agreement is to memorialize the terms and conditions of that settlement. AGREEMENT Now, therefore, in consideration of the foregoing and other obligations set forth below, the Parties agree as follows: 7. The City shall pay TMF the sum of $860,000 within thirty (30) days of the (a) date of the City of Everett Mayor's signature on this Agreement or (b) the date of receipt by the City of a complete Form W-9 from TMF, whichever of (a) or (b) is later. 8. Effective upon the making of the payment stipulated in Paragraph 7, and in consideration of the covenants and promises set forth in this Agreement, TMF, on behalf of itself, on behalf of ICI in TMF's capacity as assignee of ICI's rights, remedies and causes of action related to the Project including without limitation the ICI Formal Claim, and on behalf of the officers, directors, successors, assigns, owners, sureties, insurers, shareholders, subcontractors, suppliers, consultants and affiliates of ICI and TMF hereby releases and forever