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HomeMy WebLinkAboutResolutions - 1992.12.10 - 19714December 1Q, 1992 MISCELLANEOUS RESOLUTION #92270 BY: Finance Committee, G. William Caddell, Chairperson RE: WESTINGHOUSE ELECTRIC CORPORATION PERFORMANCE AND CONSTRUCTION BONDS: PAYMENT OF FINAL TERMINATION COSTS Mr. Chairperson, Ladies and Gentlemen: WHEREAS, the County of Oakland awarded the construction and operation of a solid waste resource recovery and electrical generating facility to the Westinghouse Electric Corporation; and WHEREAS, Westinghouse terminated its participation in the project in 1992 and sought from the County payment for work performed to change the site and increase the size of the project in the sum of $290,000, which sum was paid; and WHEREAS, Westinghouse has sought reimbursement of $835,905 as repayment for the costs of performance and construction bonds, the purchase of which was required under the Contract; and WHEREAS, the Board of Commissioners, pursuant to Miscellaneous Resolution 92099, appropriated funds for the termination of the Westinghouse Waste-to-Energy Facility Contract in an amount not to exceed $1,125,905; and WHEREAS, the County of Oakland and Westinghouse Electric Corporation, without any admission of liability, have arrived at the terms as set forth in the attached Settlement Agreement which settles all claims between the parties, with the County agreeing to pay the sum of $468,212.50 to Westinghouse as full and final compensation due and owing under the Contract and its termination. NOW THEREFORE BE IT RESOLVED, that the Oakland County Board of Commissioners authorizes its Chairperson to execute the Release and Settlement Agreement, attached hereto and made a part here of, between the County and Westinghouse Electric Corporation. Mr. Chairperson, on behalf of the Finance Committee, I move the adoption of the foregoing resolution. FINANCE COMMITTEE I HOrMI "7' 61/1W1 • 1••••di ON,* 4A•unty Execu THE FOREGOING RESOLUTION Date COUNTY MICHIGAN DEPARTMENT OF CORPORATION COUNSEL Jack C. Hays, Director 858-0557 frOAKIANW Daniel T. Murphy, Oakland County Executive MEMORANDUM TO: JACK E. OLSEN, Chairperson Planning & Building Committee DR. G. WILLIAM CADDELL, Chairperson Finance Committee FROM: JACK C. HAYS, . Corporation Couns4-, RE: Westinghouse Electric Corporation Performance and Construction Bonds — Payment of Final Termination Costs In 1989, the County of Oakland awarded the construction and operation al a solid waste resource recovery and electrical generating facility to the Westinghouse Electric Corporation. Contracts were executed on March 20, 1989, and were amended March 23, 1990, including a construction agreement, a service agreement, and a construction access agreement. Westinghouse terminated its participation in the pro,ect in 1992 and sought from the County payment for work performed to change the site and increase the size of the project in the sum of $290,000. This sum was paid as a just debt of the County on July 17, 1992. Westinghouse also sought reimbursement of $835,905 as repayment for the costs of performance and construction bonds, the purchase of which was required under the contract. On May 21, 1992, the Board of Commissioners, pursuant to Miscellaneous Resolution 92099, appropriated funds for the termination of the Westinghouse Waste—to—Energy Facility Contract in an amount not to exceed $1,124,905. The County, believing that certain legal defenses for the payment of this entire sum of money existed, entered into negotiations with Westinghouse through its legal counsel, William P. Hampton and Corporation Counsel. The County and Westinghouse, without any admission of liability, have arrived at the terms as set forth in the attached document which settles all claims between the parties. The County of Oakland shall pay the sum of $468,212.50 to the Westinghouse Electric Corporation as full and final compensation due and owing under the contract and its termination. This sum constitutes a savings of $367,952.50 over the amount originally appropriated. This negotiated settlement, in the opinion of counsel, is in the best interest of the County of Oakland and is a lair and equitable resolution of the termination of this project with Westinghouse Corporation. The Agreement is attached for the Committees' review. JCH/egm Attachment Court Tower - West Wng • /2C0 North Taiegraph Road • Porrhac. Ikr-higars 413341-0412 • (3/3) 85841650 • Fax (313) 858-1= RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") is made this day of December, 1992, by and between the County of Oakland, Michigan ("Oakland") and Westinghouse Electric Corporation ("Westinghouse"). RECITALS WHEREAS after due negotiation, the County and Westinghouse ("the Parties") entered into certain agreements for the design, construction, start—up, acceptance testing, operation and maintenance of a Solid Waste Resource Recovery and Electrical Generating Facility ("the Project"), including an Amended and Restated Construction Agreement dated March 23, 1990 ("Construction Agreement"); and WHEREAS after Westinghouse terminated its participation in the Project pursuant to the terms of the Construction Agreement, a dispute arose between the Parties regarding the liability for the premiums paid by Westinghouse for the performance and payment bonds required on the Project; and WHEREAS the County and Westinghouse, without any admission of liability, now desire to settle with finality and dispose of all claims and demands which have been or might have been asserted between the Parties arising out of their participation in the Project and their contractual relationship; NOW THEREFORE, the County and Westinghouse enter into the following promises and mutual covenants: • AGREEMENT 1. The County agrees to pay to Westinghouse the sum of Four Hundred Sixty Eight Thousand Two Hundred Twelve and 50/100 ($468,212.50) Dollars after the signing of this agreement. Payment shall be made by check payable to Westinghouse Electric Corporation and shall be made by overnight mailing on or before December 16, 1992. Payment shall be made and delivered to James Tedjeske, Senior Counsel, Westinghouse Electric Corporation, Resource Energy Systems, 1501 Ardmore Boulevard, Pittsburgh, Pennsylvania 15221. 2. Oakland County shall have no responsibility for any attempt to recover any refund of premiums paid by Westinghouse for the performance and payment bonds required on the Project. Westinghouse shall be solely responsible for any attempt to recover any of the premiums paid and Westinghouse is entitled to retain for itself any and all refunds so recovered. Westinghouse also expressly recognizes and accepts the risk that no refund or a diminished refund may be recovered. 3. The .County and .Westinghouse, their legal representatives, grantees, and assigns, hereby release, acquit, and forever discharge each other, their officers, agents, employees, principals, parents, subsidiaries, partnerships, successors and assigns, of and from any and all causes of action, claims, demands, grievances, and proceedings of any kind, at law or in equity, that could have been claimed against each other in any state or federal forum, whether 2 Dated: By:_ Its: administrative or judicial, known or unknown, foreseen or unforeseen, resulting from their participation in the Project and their contractual relationship. 4. The County and Westinghouse further understand that this settlement constitutes a full accord and satisfaction and a compromise of doubtful and disputed claims and that the payment to be made hereunder does not constitute and is not to be construed as any admission cf liability. 5. This Agreement contains the entire agreement between the parties hereto and it shall not be altered or amended except in writing signed by all of the Parties. The terms of this Agreement are contractual in nature and are not a mere recital. 6. Each of the undersigned represents and warrants that he or she is authorized to sign this Agreement on behalf of his or her principal. WITNESSETH: OAKLAND COUNTY Dated: WESTINGHOUSE ELECTRIC CORPORATION By:_ Its: 3 In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at Pontiac, Michigan this 10th day 9f) D D. Allen, County C Ly n erk December 10, 1992 Resolution # 9227n Moved by Caddell supported by Moffitt the resolution be adopted. AYES: Millard, Moffitt, Obrecht, Olsen, Palmer, Pappageorge, Schmid, Skarritt, Wolf, Aaron, Bishop, Caddell, Crake, Gosling, Huntoon, Jensen, Johnson, McConnell, McCulloch. (19) NAYS: McPherson, Serra. (2) A sufficient majority having voted therefor, the resolution was adopted. STATE OF MICHIGAN) COUNTY OF OAKLAND I, Lynn D. Allen, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and accurate copy of a resolution adopted by the Oakland County Board of Commissioners on Decemper,10. 1992 with the original record thereof now remaining in my office.