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AG 06-0951. DATE IN: I DATE OUT: I TO: REQUEST FOR CONTRACT PREPA RATION /DOCUMENT REVIEW /SIGNATURE ROUTING SLIP �V 2. ORIGINATING STAFF PERSON: ec 4. TYPE OF DOCUMENT REQUESTED (CHECK ONE) PROFESSIONAL SERVICE AGREEMENT MAINTENANCE /LABOR AGREEMENT PUBLIC WORKS CONTRACT SMALL PUBLIC WORKS CONTRACT (LESS THAN $200,000) PURCHASE AGREEMENT) (MATERIALS, SUPPLIES, EQUIPMENT) REAL ESTATE DOCUMENT 5. PROJECT NAME: S' LRIcksfeW 6. NAME OF CONTRACTOR: ADDRESS: SIGNATURE NAME: 8. TERM: COMMENCEMENT DATE: 10. CONTRACT REVIEW PROJECT MANAGER DIRECTOR RISK MANAGEMENT LAW 2OMMENTS 7/05 CITY OF FEDERAL WAY LAW DEPARTMENT ORIGINATING DEPT. /DIV: 2oc EXT: 3. DATE REQ. BY: SECURITY DOCUMENT (E.G. AGREEMENT& PERF/MAIN BOND; ASSIGNMENT OF FUNDS IN LIEU OF BOND) CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) CONTRACT AMENDMENT CDBG OTHER gtizawk\-- AG TELEPHONE TITLE tedwiaVf 7. ATTACH ALL EXHIBITS AND CHECK BOXES SCOPE OF SERVICES ALL EXHIBITS REFERENCED IN DOCUMENT INSURANCE CERTIFICATE DOCUMENT AUTHORIZING SIGNATURE COMPLETION DATE: 9. TOTAL COMPENSATION (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: YES NO IF YES, MAXIMUM DOLLAR AMOUNT: IS SALES TAX OWED ❑YES ONO IF YES, INITIAL/DATE APPROVED //4 /K 6 /714 6 11. CONTRACT SIGNATURE ROUTING INI IAL /D TE APPROVED LAW DEPARTMENT 1 CITY MANAGER CITY CLERK SIGN COPY BACK TO ORGINATING DEPT. ASSIGNED AG# 06- 05 O(y a PURCHASING: PLEASE CHARGE TO: 4 I2 b PAID BY: CONTRACTOR CIT INITIAL/DATE APPROVED INITIAL/DATE APPROVED This Mutual Release and Settlement Agreement "Agreement is made and entered into this 2// /day of June, 2006, by and between the City of Federal Way "Federal Way and DPK, Inc. "DPK hereinafter cumulatively "the Parties." 1. Settlement and Mutual Release of Claims. For and in consideration of Federal Way's payment of the Settlement Amount of Five Hundred Thirty Thousand Dollars ($530,000.00), DPK and its agents, insurers, bonding companies, successors and assigns (hereinafter collectively the "DPK Parties hereby release and forever discharge Federal Way, its project managers, architects, consultants, and their subconsultants, subcontractors and its and their agents, representatives, officers, partners, insurers, attorneys, assigns and employees (the "Federal Way Parties from any and all contract balances, claims, demands, damages, costs, expenses, actions or causes of action, whether known or unknown, accrued or unaccrued, present or future, liquidated or contingent (hereafter referred to as the "DPK Claims in any way related to the design, administration and/or construction of the Pacific Highway South HOV Lanes Phase II, South 324 Street to South 340 Street, RFB Number 03 -103 "Project The $530,000 Settlement Amount is the total sum payable and includes without limitation within that sum sales tax and all other taxes, markups, contract adjustments or liabilities, and claims for costs, services, consultants and attorneys fees and interest; and DPK agrees to defend, indemnify and hold harmless Federal Way against claims that any additional sales taxes, other taxes or adjustments are owed or payable. DPK acknowledges that it has specifically contemplated and bargained for the extinguishment of the DPK Claims even to the extent they may arise from the sole negligence of any or all of the Federal Way Parties. DPK agrees to defend, indemnify and hold harmless the Federal Way Parties from any and all claims by DPK's contractors, subcontractors or their subcontractors (of whatever tier), supplies or third parties arising out of or related in any way to the Project. Federal Way shall pay the Settlement Amount by delivery of a check payable to DPK, Inc. 114336.0003/1303721.1 MUTUAL RELEASE AND SETTLEMENT AGREEMENT 3c9 2006, or D days from the date the settlement funds budgeted by the earlier of become legally lailable to Federal Way for disbursement. Upon the effective release of the DPK Claims by the DPK Parties, Federal Way releases the DPK Parties from any and all contract reimbursements, claims, demands, damages, costs, expenses, actions or causes of action known to date, in any way related to the Project, except for manufacturer warranties until they expire under the contract terms, other warranty obligations for items that are unknown or arise after the date of this agreement, punch list work, and /or claims arising out of unknown latent defects in the Project. 2. Covenants Not To Prosecute. For and in consideration of payment of the Settlement Amount, and the promises and covenants herein, the Parties acknowledge full and complete satisfaction of and hereby agree that they will not pursue, institute or aid in any suit or action at law or equity against the other or the other's respective directors, officers, constituent partners, employees, agents, representatives, trustees, insurers, attorneys, successors and assigns, past, present and future, and each of them, for any claims released herein. 3. No Admissions. The Parties vigorously deny liability or responsibility for any and all claims, and the Parties to this Agreement understand that, by execution of this Agreement, no Party acknowledges or admits to any liability, culpability or responsibility for any acts or omissions concerning the subject herein, and that this Agreement is entered into solely for the purpose of resolving disputes without resort to litigation and is in no way to be construed, and is in fact not, an admission of liability or responsibility of any Party hereto. 4. Additional Documents. The Parties agree to cooperate fully and execute any and all supplementary documents and take all additional actions or dismissals that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement. 5. Enforcement. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Washington. 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. 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, clause or provision shall be deemed severed from this Agreement, 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. In the event that any Party hereto shall institute proceedings to enforce any provision hereto, venue shall lie exclusively in King County, Washington and the substantially prevailing party or 114336.0003/1303721.1 2 parties shall be entitled to be reimbursed for reasonable costs, expenses, expert witness fees and attorneys' fees incurred. 6. Authority. The Parties acknowledge and represent that they are effecting this settlement and executing this Agreement after having received full legal advice as to their rights from legal counsel, and hereby warrant that they have the sole right and exclusive authority to execute this Agreement and receive the benefits specified herein, and that no other person or entity has or has had any interest in the Claims, nor have any of the Claims referred to herein been sold, assigned, transferred, conveyed or otherwise disposed of. The Parties acknowledge that they have carefully read this Agreement and know the contents thereof, including the fact that this Agreement is a release of all Claims, that no promise or agreement not expressed in this Agreement has been made, and that they have signed this Agreement as a free act. This Agreement incorporates and supersedes any and all prior understandings, contains the entire agreement between the Parties, and shall be binding upon and inure to the benefit of the representatives, successors and assigns of each. Any amendments of this Agreement shall be by written agreement between the Parties. 7. Counterparts. 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. DPK, INC. By Its L-//3 STATE OF WASHINGTON COUNTY OF ss. CITY OF FEDERAL WAY ,I rt that I know or have satisfactory evidence that I, j ify a is the person who appeared before me, and said person acknowledg that he /she signed this instrument, on oath stated that he /she was authorized to execute the ta k it as the authorized representative of DPK, Inc. to be the free and volu f parties for the uses and purposes mentioned in this instrument. GP..•.... N i i i s DATED;z -4 S OTAR PUB IC for th Sta a of Washington, .4 ;Z:" if residing at er e 0 11/4 My appointment expires: 2= 5 1 14336.0003 /130 ASHIN G y%e` "it 1f11% c STATE OF WASHINGTON ss. COUNTY OF K F\ C I certify that I know or have satisfactory evidence that LT T CA. W■ I- it e> o v is the person who appeared before me, and said person acknowledged that he /she signed this instrument, on oath stated that he /she was authorized to execute the instrument and acknowledged it as the authorized representative of the City of Federal Way to be the free and voluntary act of such parties for the uses and purposes mentioned in this instrument. DATED: e_ 114336.0003/1303721.1 4 NOTARY PUBLIC for the State of Washington, residing at et My appointment expires: s 5 0