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HomeMy WebLinkAboutContract 35409�� � �� ��t���T�e�Y�� t 'i`'� ° � ',''�;� �`��t'� AGREEMENT FOR RESOLUTION BY ARBITRATION This Agreement for Resolution by Arbitration (the "Agreement") is entered into on this �.�,day of �. z� , 2007 (the "Effective Date") by and among the City of Fort Worth, a municipal corporation organized and existing under the laws of the State of Texas (the "City"), and Conatser Construction TX, LP, a limited partnership organized and existing under the laws of the State of Texas ("Contractor") RECITALS WHEREAS, Contractor constructed certain public works improvements related to underground utilities(sanitary sewer and water), street improvements and/or storm drain improvements in connection with the construction of streets for the City directly or for developers through a community facilities agreement (the "Public Works Improvements") for those certain City Department of Engineering ("DOE") projects identified on the attached Exhibit "A (the "Projects" collectively or "DOE Project" if an individual project); and WHEREAS, problems have arisen regarding the performance of pavements of certain streets constructed for the Projects which have cracked, broken, heaved, sunk or collapsed (the "Failure(s)"); and WHEREAS, the Failures could be caused by a number of factors related to the construction and/or design of the pavements and/or utilities located under the pavements including, but not limited to, (singularly or in combination): (i) the failure of Contractor to have constructed the Public Works Improvements in a manner consistent with the plans, specifications, and the contract documents, (ii) the failure of third party contractor(s), if any, to have performed construction of work related to utilities under the streets, street subgrades, or street pavements, outside the scope of the Contractor's work on the Project, in a manner consistent with the plans, specifications and contract documents applicable to such third party contractor's work, (iii) the failure of the design engineer to have properly designed the work comprising the Project and/or to have prepared complete and adequate construction plans and specifications, (iv) the failure of the City standards and/or design requirements for the utility i i trench backfill to prevent settlement, or piping from the select backfill into the embedment,- (v) the failure of the City standards and/or design requirements for the street subgrade and . � pavement to adequately mitigate or accommodate differential movement of the underlying soil 1 �� and/or to accommodate expected traffic loads, (vi) the failure of the City to maintain the street pavements, or (vii) acts of God; and WHEREAS, the parties dispute the causes of the Failures and their respective responsibility therefore and desire to establish an agreed procedure for determining the responsibility of the Contractor, if any, for the Failures and for determining a binding and agreed plan of repair on each Project that avoids the delays and expenses of litigation and resolves the dispute. NOW THEREFORE, for and in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which is hereby agreed and acknowledged the City and Contractor agree as follows: 1. City's Technical Consultant - Initial Determination and Report. a. City's Technical Consultant. At its own expense, the City has engaged the services of Gregory Geotechnical ("City's Consultant") to perform engineering services to investigate, perform tests, determine and report on the cause or causes of the Failures (whether the result of (i) falure to construction the pavement in accordance with the contract documents, (ii) failure to construct the utilities or utility trench backfills located within the street right-of-way in accordance with the contract documents, (iii) failure of the pavement design to withstand actual traffic loads, (iv) failure of the pavement design to withstand differential movement of the subgrade, (v) failure of the standards or design of the trench backfill to prevent settlement, or piping from the select backfill into the embedment, (vi) failure of the City to properly maintain the Improvements, or (vii) some other cause. The City's Consultant shall also determine who the responsible party/person or parties/persons are, if any, and to recommend necessary repairs and/or reconstruction for each Project. Any person or entity may be a responsible person or party even though they may not be a party to this Agreement, including the design engineer, the geotechnical engineer or others. b. Schedule of Investigation and Information to be Provided. The City shall designate the order of the DOE Projects for the City's Consultant to evaluate and report on and shall provide the Contractor and the City's Consultant notice of such designation. The City's Consultant shall notify the parties in writing when it expects to commence its investigation of each DOE Project (the "Notice of Commencement"), and each party may submit, within ten (10) ;; :�� .: � ,�, -.-, �`,� �� �� �. , 2 � �� .��:�.iU�dl'3 y�'�'.� days following the receipt of a Notice of Commencement, information to the City's Consultant to assist it in the investigation and evaluation of the cause or causes of the Failures on that DOE Project. Upon issuance by the City's Consultant of a Notice of Commencement, the City shall provide to the City's Consultant the plans and specifications and other contract documents related to the DOE project for which the Notice of Commencement relates (the "Contract Documents"). The City's Consultant may request such additional information from the City, the Contractor, or others as deemed advisable to perform the investigation and evaluation described in subparagraph 1(c) below. Each party shall provide a copy of all information sent to the City's Consultant to the other party. c. City's Consultant's Investigation. City's Consultant shall perForm a thorough engineering evaluation and perform such tests and investigations as are required to determine the cause, or causes, of the Failures, who the responsible party or parties are, if any, their respective percentage of responsibility and to recommend necessary repairs and/or reconstruction for each Project. To the extent that it is reasonably practicable, the City's Consultant's engineering evaluation shall include, but shall not be limited to the following: (i) A determination of the Contractor's compliance, or failure in compliance, with the Contract Documents, in performing the construction of the Public Works Improvements; (ii) If the street pavement and sub-grade construction was not included in the Public Works Improvements constructed by Contractor, a determination of the street pavement contractor's compliance, or failure in compliance, with the Contract Documents for construction of the street sub-grade and pavements; (iii) If the water and sewer construction was not included in the Public Works Improvements constructed by Contractor, a determination of the compliance, or failure in compliance, of the contractor performing such work with the Contract Documents for construction of the utilities within the street right-of-way; (iv) A determination of the native soil characteristics and conditions underlying the distressed or failed pavement and the adequacy of the pavement and sub-grade design to withstand the potential vertical rise, if any, imposed by the expansive soil conditions, if any, beneath the subgrade; , �. 3 (�) (vi) a determination of the traffic load imposed on the streets, including the loads imposed by traffic from concrete trucks and construction vehicles associated with other construction activities, if any, and the adequacy of the pavement and sub- grade design to perform under such loads; a determination of whether the utility trench backfill specified in the Contract Documents was adequate to prevent settlement, or piping from the select fill into the embedment. (vii) a determination of the adequacy of the maintenance of the street pavement after the acceptance of maintenance by the City; and (viii) consideration of such other factors and conditions that a reasonable and prudent engineer would consider in evaluating the cause or causes of the Failures d. City's Consultant's Initial Report - Causation. Within sixty (60) days following the Notice of Commencement (unless an enlargement of such time is requested by the City's Consultant for reasonable cause due to the complexity of the investigation in which event such time may be extended up to a total of ninety (90) days without the consent of both parties, any further extension requiring written consent of both parties), the City's Consultant shall issue a detailed written initial report ("Initial Report") addressing each Failure on the DOE Project which sets forth the City's Consultant's engineering findings and conclusions regarding the cause or causes of the Failure(s). To the extent, that the City's Consultant concludes that the Failure(s) was/were directly caused, in whole or in part, by Contractor's failure to meet the requirements for materials and/or the standards for perFormance for construction contained in the Contract Documents ("Contractor's Default"), the Initial Report will detail the manner in which the Contractor's performance deviated from the requirements of the Contract Documents. The Initial Report shall describe the testing, documents review, or other investigative process supporting the City's Consultant's opinion that such deviation caused the Failure(s). The Initial Report shall state the City's Consultant's determination regarding the extent to which any of Contractor's Default, if any, caused, in part or in whole, the Failure(s) and shall provide the calculations and rationale supporting such determination. In the event the City's Consultant determines that there was more than one cause of the Failure(s), the City's Consultant shall apportion the responsibility for the Failure(s) based upon a reasoned evaluation for each cause which contributed to the Failure(s). :� J i��l' � � :� ��vvr�� � � �r" l � �; ::, �'."';,�i��;�;si i�;i@.; � � ':J1�;;� .; r�U'u�L��S-�Q� , 2�7 ",,�'ilf i �`,( � ru� ..';:''a:���� J;,�� e. City's Consultant's Initial Report - Repair Procedure and Responsibility. The City's Consultant's Initial Report shall identify who the responsible party or parties are for the Failure(s), their respective percentage of responsibility and the recommended necessary repairs and/or reconstruction for each Project to be taken in order to repair or reconstruct the Failures (the "Repair Work") along with an estimate of the total cost of the Repair Work if the City were to hire a third party to perForm such work, including the cost of any required bonds and a five percent (5%) charge of the total cost for the new inspections and testing that will be required in connection with the Repair Work (the "Cost Of The Repair"). By way of example, if the total cost of the Repair Work, including the required bonds, was $100.00 then the Cost Of The Repair would equal $105.00. If the City's Consultant found fault in the original design reflected in the Contract Documents and the Repair Work requires construction of a higher quality or materially different design than that required by the Contract Documents for the DOE Project (i.e. thicker pavement, higher strength concrete, enhanced reinforcement, thicker or different subgrade stabilization, etc.) (the "Betterments"), the cost estimate prepared by the City's Consultant shall itemize and show the estimated costs of the Betterments to the design as separate items of such estimate. The City's Consultant shall determine the Contractor's responsibility, if any, for the Cost Of The Repair by multiplying the Contractor's proportional responsibility, if any, for the Failure(s), if any, times the Cost Of The Repair, as adjusted (reduced) for the costs attributable to Betterments, if any (the "Release Payment"). f. City's Demand Based on Initial Report. Upon receipt of the Initial Report the City's legal counsel will make demand ("City's Demand") upon the Contractor to perform the Repair Work, subject to any applicable requirements for competitive bidding of such Repair Work, or to tender the Release Payment for such work, based on the City's Consultant's findings and determinations as set forth in the Initial Report. Such demand shall be accompanied by a copy of the Initial Report and supporting documentation. g. Contractor's Response to City's Demand. Contractor shall provide a written response to the City's Demand within fifteen (15) business days following Contractor's receipt of the City's Demand notifying the City that the Contractor either: (i) disputes the findings and conclusions of the Initial Report regarding the Contractor's responsibility for the Repair Work or (ii) agrees with the findings and conclusions of the Initial Report regarding the Contractor's responsibility for the Repair Work (the "Contractor's Response"). If Contractor fails to deliver Contractor's Response within the fifteen day response period, then the City shall notify Contractor in writing of the lack of response and then if Contractor fails to deliver Contractor's � Response within two business days following receipt of the notice by the City of no response, then the Contractor shall be deemed to have agreed with the findings and conclusions of the Initial Report regarding the Contractor's responsibility for the Repair Work. h. Effect of Contractor's Agreement With Initial Report. If the Contractor agrees with the findings and conclusions of the Initial Report regarding the Contractor's responsibility for the Repair Work (either expressly or as a deemed agreement, as provided in the subparagraph 1g), then such findings and conclusions shall become final and binding upon the Contractor and the same may be enforced as provided in Paragraph 5 below. i. Effect of Contractor Disputing the Initial Report. If the Contractor delivers the Contractor's Response and disputes the findings and conclusions of the Initial Report regarding the Contractor's responsibility for the Repair Work, as provided in subparagraph 1(g) above, then the Initial Report shall not be final and binding and the Contractor's responsibility shall be decided as provided in the remainder of this Agreement. 2. Contractor's Engineering Consultant - Determination and Report. a. Contractor's Engineering Consultant. If the Contractor disputes the findings and conclusions of the Initial Report regarding the Contractor's responsibility for the Repair Work by the Contractor's Response, the Contractor shall also, in the Contractor's Response, provide to the City a designation of an engineering consultant (the "Contractor's ConsultanY') who shall provide the parties with an engineering evaluation and report (the "Second Report") concerning the causes of the Failure(s), recommended Repair Work, the estimated costs therefor, the Contractor's responsibility, if any, for the Repair Work, and the amount of the Release Payment, if any including findings and recommendations of the same nature as those included in the Initial Report. The Second Report shall be completed and a copy provided to the City within sixty (60) days following the Contractor's designation of the Contractor's Consultant unless an enlargement of such time is requested by the Contractor's Consultant for reasonable cause due to the complexity of the investigation in which event such time may be extended up to a total of ninety (90) days without the consent of both parties, any further extension requiring written consent of both parties. All costs associated with the services provided by the Contractor's Consultant shall be borne solely by the Contractor. b. Information to be Provided Contractor's Consultant. The Contractor's Consultant shall be provided copies of all reports and information donsidered by the City's � ���J��� �r.;.`�S���u,:y � �/�� 6 � 1U� ��.�',,�'�._�'if�� j�2�`.� --�-- _�-�.a--._...._� Consultant in connection with the Initial Report. Additionally, the Contractor's Consuitant may request such additional information from the City, the Contractor, or others as deemed advisable to perform the investigation and evaluation described in subparagraph 2(c) below. Each party shall provide a copy of all information sent to the Contractor's Consultant to the other party. c. Contractor's Consultant's Investigation. Contractor's Consultant shall perform a thorough engineering evaluation and perform such tests as are required to determine the cause, or causes, of the Failures. To the extent that it is reasonably practicable, the Contractor's Consultant's engineering evaluation shall include the factors described in paragraph 1(c) (i) —(vii) above except to the extent the Contractor's Consultant agrees with the Initial Report. 3. Meeting of Consultants. Within the thirty (30) day period immediately following delivery of the Second Report to the City, the City's Consultant and Contractor's Consultant shall meet to confer regarding their reports and attempt to reach agreement on an opinion regarding the Contractor's responsibility for the Repair Work and the cost to repair. If such agreement is reached within such thirty (30) day period, the two consultants shall issue a joint finding in the form of the Initial report which shall be conclusive and binding upon the City and Contractor (the "Joint Report") 4. Neutral Arbitrator. a. Selection. If the Contractor disputes the Initial Report and the Contractor's Consultant and City's Consultant are unable to agree on a Joint Report within the thirty (30) day period, as provided in paragraph 3 above, the two consultants shall jointly select (within ten (10) days immediately following the thirty (30) day period herein described) a qualified licensed engineer to act as a neutral arbitrator (the "Neutral Arbitrator"). If the Contractor's Consultant and City's Consultant fail to timely appoint a neutral arbitrator, then within ten (10) days of their failure to appoint (being fifty (50) days from the date the City received the Second Report) (the "Arbitrator Designation Date") each of the parties may designate three possible arbitrators that are licensed engineers. If a party fails to designate three possible arbitrators timely, then they shall be deemed to have waived their right to designate possible arbitrators. From the six possible arbitrators designated by the parties (or three if a party fail to so designate), each party shall rank the candidates from 1 to 6, with 1 `� ! 7 being their favorite choice and 6 being their least favorite choice. Each party shall exchange their ranking to the other party within 5 business days of the Arbitrator Designation Date. The candidate with the lowest total score shall be the Neutral Arbitrator. In the event of a tie, the parties shall meet to flip a coin to determine which of the candidates will serve, heads the City chooses, tails the Contractor chooses. b. Arbitration Process. The City's Consultant and Contractor's Consultant (collectively the "Consultants") shall provide the Neutral Arbitrator with copies of their respective reports and with all documents, studies, reports and data that they reviewed in the course of preparing their respective reports. The Consultants shall further provide the Neutral Arbitrator with their separate statements setting forth the issues on which they believe they agree and the issues on which they disagree and their respective positions regarding each issue. Each of these submittals from the Consultants shall be delivered to the Neutral Arbitrator within ten (10) days from the date the Neutral Arbitrator was appointed. The scope of the Neutral Arbitrator's authority shall be limited to deciding the issues on which the Consultants disagree. The Neutral Arbitrator shall conduct one or more joint conferences with the Consultants for both parties at which the Consultants will answer questions and provide input regarding their opinions and reports. Both Consultants shall be available in person or by telephone for all such meetings. The Neutral Arbitrator will not engage in ex parte discussions with either Consultant or either parties representatives, except to schedule meetings. The Neutral Arbitrator shall issue an award within forty (40) days of his appointment (unless an enlargement of such time is requested by the Neutral Arbitrator for reasonable cause due to the complexity of the matter and to which both parties have consented to in writing). The Neutral Arbitrator's award, incorporating the agreed positions of the City's and Contractor's Consultants on agreed issues and incorporating the Neutral Arbitrator's determination of issues on which such Consultant's disagree, shall comply with the requirements of the Initial Report as to the required specificity related to causation, the Repair Work, the Cost of The Repair, the Betterments and their cost, the responsibility of persons or entities, and the Release Payment, if any, all as set forth in subparagraphs 1 d and e. c. Costs of Neutral Arbitrator. Should the Neutral Arbitrator determine that the Contractor was not reasonably justified in challenging the disputed findings and determinations of the Initial Report authored by the City's Consultant, he or she may assess all costs for the services of the Neutral Arbitrator to the Contractor. Should the Neutral Arbitrator determine that the disputed findings and determinations of the Initial Report authored 8 by the City's Consultant were not reasonably justified, then he or she may assess all costs for the Neutral Arbitrator to the City. In the absence of either of the two preceding determinations, the City shall be responsible for the costs of the City's Consultant, the Contractor responsible for the cost of the Contractor's Consultant, and the City and Contractor shall equally share the costs of the Neutral Arbitrator. d. Effect of Award. The award of the Neutral Arbitrator is final and binding upon the parties as an arbitration award and judgment may be entered upon the award in accordance with the Federal Arbitration Act confirming the award. 5. Contractor's Obligations Following Final Determination. Within five (5) days following a final determination that the Contractor is responsible, in whole or in part, for the Repair Work (whether such determination is final and binding as provided in paragraph 1(h), 3, or 4(d) above), the Contractor shall notify the City in writing of its election to: either (i) pay the Release Payment set forth in the final determination or (ii) perform the Repair Work, subject to any requirements for competitive bidding for such Repair Work. a. Election to Pay Release Payment. If the Contractor elects to pay to the City the Release Payment for a particular DOE Project, such payment shall be made within ninety (90) days following the date of the final determination of liability as provided in paragraph 1(h), 3, or 4(d) above. Payment of the Release Payment for a particular DOE Project shall fully satisfy the Contractor's obligations regarding the Failure(s) for a particular DOE Project and shall discharge the Contractor from any and all further liability in connection therewith. The City may, but is not required to elect to defer collection of the Release Payment and in lieu of collecting said payment may apply the amount of said payment in satisfaction of the City's portion of the costs for the Contractor to perform repair work required in connection with any other DOE Project performed for the City. In the event the City makes such an election, the application of the amount of the Release Payment as payment for such other work shall operate to fully satisfy the Contractor's obligations regarding the Failure(s) in the same manner as if the Release Payment had been made to the City. b. Election to Perform Work — Contractor Solely at Fault for Failure(s)/No Betterment. If the Contractor is determined to be solely responsible for the Failure on a DOE Project and therefore solely responsible to perform the Repair Work, the and no Betterments are required, Contractor may elect to perForm the Repair Work, as part of Contractor's original � contractual and warranty obligations under the original DOE Project contract in lieu of paying the Release Payment. If the Contractor so elects, the Contractor shall commence performance of such repair work within ninety (90) days following the date of the final determination of liability as provided in paragraph 1(h), 3, or 4(d) above and diligently prosecute such Repair Work through to completion with out delay or interruption caused by the Contractor. The Repair Work shall be completed in a good and workman like manner, consistent with the plan of repair and free from defects in materials and workmanship. PerFormance of such Repair Work for a particular DOE Project shall satisfy and discharge the Contractor's obligations for the Failure(s) for a particular DOE Project and shall discharge the Contractor from any and all further liability in connection therewith, except for the Contractor's obligation to correct defects in materials or workmanship of the Repair Work prior to the expiration of ten years from the original DOE Project completion date. c. Election to PerForm Work — Contractor Partially at Fault for Failure(s) and/or There Are Betterments. (i) Competitive Bids or Proposals Not Required. If the Contractor is determined to be partially responsible for the Failures on a DOE Project and therefore partially responsible to perform the Repair Work or if the Repair Work requires Betterments, and the Contractor elects to perForm the Repair Work, the City shall be required to pay the Contractor for the Repair Work an amount equal to the total estimated costs for such Repair Work as finally determined pursuant to paragraph 1(h), 3, or 4(d) above less the amount of the Release Payment for that DOE Project less the amount of any other release payments applicable to other DOE Projects that the City elects to apply to this Repair Work in lieu of collection of payment (the "City's PaymenY'); provided, the City has determined that such agreement does not violate any requirement that the City secure competitive bids or proposals for such Repair Work. In such case, the Contractor shall perform the Repair Work as part of Contractor's original contractual and warranty obligations under the original DOE Project contract and the City shall issue a Change Order increasing the original DOE Project contract amount by the amount of the City's Payment for such work. If the Contractor so elects, the Contractor shall commence perFormance of such repair work within ninety (90) days following the date of the final determination of liability as provided in paragraph 1(h), 3, or 4(d) above and diligently prosecute such Repair Work through to completion with out delay or interruption caused by the Contractor. The Repair Work shall be completed in a good and workman like manner, consistent with the plan of repair and free from defects in m�teri�l� ..�,r�d �ivo�kmai�ship. r � � �� '... ��':�.,�.r'1..6�' � 10 T.....,? y � '+'� '' f 'i ^ � %` , � :�J� `���.���ti� �'�.:.� Performance of such Repair Work for a particular DOE Project shall satisfy and discharge the Contractor's obligations for the Failure(s) for a particular DOE Project and shall discharge the Contractor from any and all further liability in connection therewith, except for the Contractor's obligation to correct defects in materials or workmanship of the Repair Work prior to the expiration of the Statute of Repose period for the original DOE Project contract. (ii) Competitive Bids or Proposals Required. If the City determines that it must submit the Repair Work for bids, it shall have the right to prepare itself or request at its expense the City's Consultant or a third party to prepare plans and specifications in sufficient detail to allow for the Repair Work to be bid by third parties. In the event the Contractor elects to perform the Repair Work, but the City determines that it is required to award the contract for construction of the Repair Work on the basis of competitive bids or proposals, the Contractor shall be allowed to submit a bid or proposal on the same basis as other offerors. If the City determines that the Contractor's bid or proposal should be selected for award, the Contractor and City will enter into a contract for a price equal to the Contractor's bid or proposal less the amount of the Release Payment. If the City determines that the bid or proposal of another offeror should be selected for award, the Contractor will not be permitted to perForm the work in lieu of payment of the Release Payment and the Contractor's obligations regarding the Failure(s) shall be satisfied as provided in paragraph 5(a) above by paying the Release Payment. 6. Enforceab�e Arbitration Agreement. This Agreement between the Contractor and City is an agreement to arbitrate the disputes that are the subject matter of this Agreement and shall be enforceable pursuant to the Federal Arbitration Act. 7. Contractor's Bid on Pending or Future Contracts. At all times in which this Agreement, or any proceeding conducted pursuant to this Agreement, is pending and Contractor is performing all of Contractor's obligations under this Agreement, a distress or failure on Public Works Improvements listed in Exhibit "A" shall not be considered a basis to designate the Contractor as not responsible for purposes of accepting bids on pending contracts which will be released. � 11 8. General. a. Disputed Matters. The City and the Contractor both deny liability for the Failures which are the subject of this Agreement. It is the intent of the City and the Contractor, acting through their duly authorized agents, to resolve finally these matters and issues in dispute under the terms and conditions set forth herein in order to avoid further litigation and to minimize expenses. Nothing in this Agreement is intended to be an admission of liability or fault on the part of either the City or the Contractor. b. No Waiver of Immunity. By entering this Agreement, the City in no way waives any immunity to which it is entitled as a municipality organized and existing under the laws of the State of Texas, except to the extent necessary to enforce the provisions of this Agreement. c. No Third-Party Beneficiary. This Agreement has been executed for the sole benefit of the City and the Contractor and is not intended for the benefit of any third-party. No other party shall have any rights hereunder, nor shall they be entitled to assume that the City or the Contractor will insist upon strict performance of the mutual obligations arising under this Agreement for the benefit of any other party. d. Attorney's Fees. In the event that either party is required to obtain the services of an attorney to enforce this Agreement, the prevailing party, in addition to other remedies available, shall be entitled to recover reasonable attorney's fees and costs of court, pursuant to Section 271.159, Texas Local Government Code. e. Amendments. This Agreement may be amended, revised, waived, discharged, released, or terminated only by written instrument executed by all parties hereto. f. Applicable Law and Venue. This Agreement has been executed and delivered in the State of Texas and shall be governed by and construed in accordance with the laws of the State of Texas and the applicable laws of the United States of America. This Agreement is performable and enforceable in Tarrant County, Texas. g. Invalid Provisions. If any provision of this Agreement is for any reason held to be invalid or unenforceable, such provision shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid and/or unenforceable provision had never been contained herein. 12 C� h. Acknowledgement of Entire Agreement. The parties do each expressly represent and warrant that (i) they have entered into this Agreement of their own free will and accord, and in accordance with their own judgment; (ii) that they have not been induced to enter into this Agreement by any statement, act, promise, or representation of any kind or character by anyone hereby released or on the part of their agents or representatives, except for the consideration expressly recited herein; and (iii) that this Agreement represents the entire agreement between the parties. i. Supplementary Documents. The parties, individually, and in their representative capacities, agree to execute any and all supplementary documents and to take all supplementary steps to effect the basic terms and intent of this Agreement. j. Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by registered or certified mail, postage prepaid, to the parties at the following addresses (or at such other address for a party as shall be specified by like notice, provided that notices of a change of address shall be effective only upon receipt thereof): To Contractor: Conatser Construction TX, LP Attn: Mark Pappas P.O. Box 15448 Fort Worth, Texas 76119 With a copy to: Stephen D. Harrison Harrison & Steck, P.C. 512 Main Street, Suite 1100 Fort Worth, Texas 76102 (817) 348-0400 (817 348-0406 (facsimile) To City: City of Fort Worth Attn: James Riddell 1000 Throckmorton Street Fort Worth, Texas 76102 (817) 392-8359 (facsimile) 13 With a copy to: Hunter T. McLean Whitaker, Chalk, Swindle & Sawyer, LLP 301 Commerce Street, Suite 3500 Fort Worth, Texas 76102 (817) 878-0500 (817) 878-0501 (facsimile) Executed and effective as of the Effective Date. DATED: l> - �? c� -- �i °j CITY F�-FORT. WORTH BY � ; �� NAME: �larc A� Ott �� �6�t;�►�� �ity �anager TITLE: APPROVED AS TO FORM AND CONTENT: (e � ; � ,,., c�� , ,� ATTO EY FOR CITY OF F RT WORTH DATED: �":.[1:�_::tc i _ ;� /'� � , –, Y.w.__ _ . ti1. i;(r���-�.r�17 .� _ ._-. .. ;ec� �r:�. , CONATSER CONSTRU� X. LP i � � __— , _ �� ���� NAME: TITLE: �'�" APPROVED AS TO FORM AND CONTENT: f� ATTOR Y FOR CONATS R CONSTRUCTION TX, LP 14 _ C ���� ��ortract thoriz tio� Ua��- - � ^ � � �+ �:., I,� � � � , .�l�rt�i .����t�.r;�.� . � ��.� 1��L f!,' r 1�,_, .ur I� �I''�.: �,: - i �,��' �`'Yi'J'it�,;;��J�i� ����`�� � t EXHIBIT "A" Subdivision and Additional Phase DOE Number Tehama Ridge Phase I Heritage Phase 3-D, Section 1 B Arcadia Park Phase 5, Section 1 15 4471 4326 4148 City of Fort Worth, Texas Mayor and Council Communication -���-- - --.-.,�- - - -�, � COUNCIL ACTION: Approved on 6/19/2007 ��: -���.��:� ��. _�.,.;�.M �__r__. — � �:�::�:_.�,_�._�.�,._.�_� .�� -�_ DATE: Tuesday, June 19, 2007 LOG NAME: 12CONASTER REFERENCE NO.: C-22205 SUBJECT: Authorize Execution of Agreements for Resolution by Arbitration with Conatser Construction, Inc., and Conatser Construction Texas, LP c.�-..,.:: ���;.� q-�.:�� - - -- - �`�`=�"a -- ..=s��--- -- �=tu.,.. -.-.��n- - �_ —....�y.. ' RECOMMENDATION: It is recommended that the City Council authorize the City Manager or his designee to execute Agreements for Resolution by Arbitration ("Agreement") with Conatser Construction, Inc., and Conatser Construction Texas LP. - DISCUSSION: Conatser, under City-awarded contracts or developer-awarded contracts stemming from Community Facility Agreements, constructed certain public infrastructure related to underground utilities (sanitary sewer and water), street improvements and/or storm drain improvements ("Public Works Improvements") for certain City Department of Engineering ("DOE") projects. Subsequently, there have been pavement perFormance problems in certain streets constructed by Conatser. While both the City and Conatser deny fault and/or liability for the failure, the parties wish to resolve the dispute by entering into the Agreement. The Agreements provide appropriate steps that will be taken by the City and Conatser, as well as the agreement to Arbitrate unresolved disputes. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action will have no material affect on city funds. TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for City Manager's Office b)[�. � Marc Ott (8476) Originating Department Head: David Yett (7623) Gerald Pruitt (7616) Additional Information Contact: James Riddell (7614) Logname: 12CONASTER Page 1 of 1