HomeMy WebLinkAboutContract 42583 CITY SECRETARY
CONTRACT NO. �42L:f5j
SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION
CONTRACT
This Settlement Agreement and Master Construction Contract (the " '"Agreement") �s
entered into by and among the City of Fort Worth (the "Ci on the one"City"), hand, and Conatser
Construction TX, LP and Conatser Construction, Inc. (collectively referre "d to as "Contractor").
on the other, and is made effective as of /[/#v 1
. , 2011 the "Effective Date"}.--?
The City and Contractor may be referred to herein individuals "Party"y as a y or collectively as the
"Parties."
WHEREAS, Contractor constructed certain public works improvements related ted to ether
underground utilities (sanitary sewer and water), street improvements an '
p and/or storm drain
improvements in connection with the construction of streets and utilities
s for the City directly or
for developers through a community facilities reement a (the "Public Wor "g Works Improvements")
those certain City Department of Engineering development ro'ects ("DOE �dent�fied on he
attached Exhibit"I"(the "Contractor Proj ect(s)"); and
WHEREAS, the Contractor Projects include those developments where Contractor tractor Was
both the street and utility contractor or may have been one but not the other,;
and
WHEREAS, certain streets in the Contractor Projects cracked broke h
� , heaved, sunk, or
collapsed prematurely; and others are suspected of imminent failure the "Fail " •
ures }, and
WHEREAS, the City asserted claims against Contractor and asserted that the Contractor
is responsible, in whole or in part, for causing the Failures regardless of whether, g Contractor was
both the street and utility contractor or one but not the other, and therefore '
has an obligation to
make the repairs; and
WHEREAS, Contractor denied the claims asserted by the City; and
SETTLEMENT AGREEMENT AND MASTER CONSTRICTION CONTRACT _ �; OF 18
19585,v22 F +�, - } P GE 1
WHEREAS, pursuant to the Agreement. Resolution b '
. y Arbitration dated June 20,
2007, see attached Exhibit "2," and pursuant to the Agreement •
g meat for Resolution by Arbitration
dated June 26, 2007, see attached Exhibit "3," (collectively, the "Arbitration the
City and Conatser Construction, Inc. and Conatser Construction tYOn Tx, LP agreed to arbitrate some
of their disputes regarding the Failures for the DOEs th at were identified ed and li sted Sted on
Exhibit "A"to the Arbitration Agreements; and
WHEREAS, bona fide disputes exist between the Parties as to '
the causes of the Failures
and their respective responsibility therefore, and the Parties desire to attempt to buy peace and
settle and compromise their disputes pursuant to the terms of this Agreement, and
NOW, THEREFORE, in consideration of the mutual romise
p sand agreements contained
herein, and for other good and valuable consideration the r •
receipt and sufficiency of which is
hereby acknowledged, the Parties hereto hereby g�' follows:
agree as foll '
A. Agreement to Re air/Ri ht to Terminate
I• The original utility, street and/or storm drain contracts that relate to each DOE
project included among the Contractor ProJ ects (including those se that Contractor was not a art
p Y
to) relate to a specific geographic area and scope of work '
p within each development (the
"Original Scope Of Work"). Contractor agrees that regardless g g ess of whether or not it was the
original utility, street and/or storm drain contractor, that it will
I perform the repair work required
by the City to the streets, subgrade, utility renches or utilities •
Y s w�th�n the geographic area that is
included within the Original Scope Of Work in return for a
payment in an amount equal to 50%
of the Unit Prices set forth on Exhibit "4" "
the Unit Prices" '
� } related to the corresponding work
g
for each item set forth on Exhibit "4." The scope of the work that the Unit Prices relate to is
similar to the scope for each item as set forth in the 2007 Specifications p ations and Contract Documents
SETTLEMENT AGREEMENT'AND MASTER CONSTRUCTION CONTRACT PAGE 2
19585. 22 OF 18
2007 Critical Capital Project for Reconstruction of Premature •
Failed Streets and Partial
Replacement of Premature Failed Streets: City roject No: 01746 D •
Y � of No. 6682, TPW Project
No: 0295-541200-202240 174683. The scope of work for each item tem identified on Exhibit 4 •�s
further specified in the City's current specifications for each item •
listed and also includes all
subsidiary or necessary work required for a complete job. There shout
p J d be no change orders or
requests for payment for items that do not have a a item as all items required pay qu red to complete the
work are included in the items set forth on Exhibit 4. For example, •
p e, the items identified as
"Remove and Replace Failed Reinforced Concrete Panels," include
all excavation, removal,
hauling, preparation, saw cutting, steel, doweling and concrete required ed to effectuate the panel
replacement. The work to be performed will be determined b •
y the City and set forth in the
Repair Work Documents as hereinafter defined. Whether or not certain
repair work relates to an
area within an Original Scope of Work shall be determined b the City y in its sole and absolute
discretion. In the event the City determines that it has asked Contractor to make a repair that
relates to an area outside of an Original Sco •
Scope of Work, or if the City determines, in its sole and
absolute discretion, that the damage to the street or utility improvement �n a localized i
zed area was
caused by something not subject to the control of an of the original con
Y tractors who performed
the original Scope of Work, then the City may elect to a to Y pay Contractor an amount equal to
100% of the Unit Prices for that isolated ortion of the repair work •
p p k if the City has requested
Contractor to make a repair to that portion. The Cit shall have '
Y e no obligation to request
Contractor to repair a portion of a street or utility that falls outside of the Original Scope of
Work, as determined by the City, or for which the City as determined ned that it should pay to
Contractor 100% of the Unit Prices. The City's determination of whether ether a requested repair falls
SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT
19585 v22 PAGE 3 OF IS
within an Original Scope of Work or whether to a 50% or 1 00% of the '
pay Unit Prices with
respect to any of this work shall be made in its sole discretion and shall be final and binding.
g
2. The City desires to have repairs made to the worst street segments se first, regardless
of the location within subdivisions, as opposed to repairing an entire subdivision on before
commencing work on the next subdivision. Contractor also desires to receive work in
discrete
groups. The City also is concerned regarding whether or not Contractor will make the
e repairs in
strict compliance with the repair plans to be developed b the City. As a result f '
p Y y o the foregoing
concerns, the parties have agreed to proceed under this Agreement in hases as set forth below.
elow.
After the completion of the Phase One Projects, as hereinafter defined and at
the end of each
phase thereafter, if either party 1s dissatisfied for any reason they can elect to stop future
performance under this Agreement pursuant to the rovisions set forth below ow as to street
segments for which a Repair Work Order has not yet been accepted or deemed accepted,p p ed, and
thereafter the disputes relating to the remainder of the street segments that are '
g e included in the
Contractor Pro j ects that have not been repaired shall be resolved ursuant to the e terms of the
Arbitration Agreements. If Contractor elects to stop uture work Contractor shall
p � be obligated to
complete all work associated with a Repair Work Order '
p r for which it has accepted or been
deemed to have accepted pursuant to the terms of this Agreement.
3. The parties agree that the Arbitration Agreements remain in effect
g and that all
proceedings pursuant to them shall be abated and will not resume until such time as
a party elects
to stop future performance under this Agreement pursuant to the rovisions of this s Agreement.
The parties agree that any applicable statutes of limitations or statutes of repose p e that relate to a
Contractor Project are hereby tolled until ninety (90) da s after the effective 'Y date of a party's
SETTLEMENT AGREEMENT AND:'MASTER C()NSTRUCTION CONTRACT PAGE 4 OF 18
I9585.�22
election to stop future performance under this Agreement, pursuant provisions g , p suant to the prov�sions of this
Agreement.
4. The parties agree that the work on the Contractor Projects
� shall be performed in
phases as follows:
a. The first phase shall consist of the work required by the Ci ty to make the
necessary repairs to the streets, subgrade, utility trenches or utilities within the street
segments identified on Exhibit "5" (the "Phase one Pro'ects
J ") which are all Contractor
Projects. Notwithstanding any other rovision of this Agreement p g meat to the contrary,
Contractor shall be obligated to make the repairs required b
p q y the City on the Phase one
Projects. Contractor does not have the right to reject the Repair g J p Work orders that relate
to the Phase one Projects or to terminate this Agreement prior to completion g p of all of the
repairs required by the City on the Phase one Projects. By entering i
nto this Agreement,
Contractor has agreed to make the repairs on the Phase One Projects� cts and shall have no
right to avoid making those repairs. The parties contemplate '
p p that the total cost of making
the repairs on the Phase one Projects will be in excess of 3 00 0
$ , 0,000.00 at 100/o of the
Unit Prices. If Contractor fails to complete the repairs on the P '
p p hale one Projects before
the Completion Date, as hereinafter defined then Contractor shall owe to the City an
amount equal to the City's estimated cost to repair related to each street se (this gment is
an estimate of the total cost to repair at 100% of the Unit Prices set forth
rth on Exhibit 4) for
each segment which Contractor failed to repair.
b. After the Phase one Projects are completed, the City sh all submit Repair
Work orders for street segments within the Contractor Pro'ects i
J n groups so that the full
Unit Price value of each group shall be approximately $750,000.00 +/- 15/
. Contractor
SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT
19585.v22 PAGE 5 OF 1S
must either accept the entire group of work orders or reject the rou in its 'g p entirety.
Contractor shall have three (3) business days to reject in writing, R
Y reject, g, e parr Work Orders
included in a group, which rejection notice must be sent to the representative'
from the
City that issued the Repair Work Order b Certified Marl Return Receipt pt Requested and
postmarked within the three (3) business days to qualify as timely notice. If Contractor
fails to provide timely written notice of rejection then Contractor
rejection, shall be deemed to
have accepted the Repair Work Order and shall be bound to complete the he work set forth
therein pursuant to the terms of this Agreement, the Repair Work Ord '
p Order and within the
time specified in the Repair Work Order. If Contractor fails to complete '
p to the repairs
related to a Repair Work Order that has been accepted or deemed accepted epted before the
Completion Date, as hereinafter defined, then Contractor shall be in e
d fault. In such
event, the City shall have the right to terminate Contractor with respect to
p the Repair
Work Order that Contractor is in default of and hire a substitute contractor to complete
the work and Contractor shall be obligated to a to the City an am
pay y aunt equal to the cost
incurred by the City to have the work completed by the third party contractor.
C. If Contractor rejects a group of Repair Work Orders then Contractor
shall
be deemed to have elected to discontinue future performance pursuant to this Agreement,
which shall be effective on the date the written notice sent b Conti '
y actor rejecting the
Repair Work Orders is received by the City (the "Termination E.Date" Effective fective as of the
Termination'Date, the abatement of the Arbitration Agreements shall all cease and all
disputes related to street segments that have not been repaired and '
p are within the
Contractor Projects subject to the Arbitration Agreements shall be resolved solved pursuant to
the Arbitration Agreements and the arbitrations shall resume. With respect to all others,
sETYLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT
19585. 22 PAGE 6 OF 18
any applicable statute of limitations or statute of repose shall commence to run again g n 1n
accordance with Section A.3 of this Agreement. If all of the street segments g that are
related to the Contractor Projects are pursuant repaired to the terms of
p p this Agreement,
then the arbitrations shall be dismissed, and claims related to them shall be resolved.
B. The Work
1. Upon receipt of a written notice to proceed from the City elated
y to a street
segment that is included in a Contractor Project and the receipt of the Repair Work p p Documents,
as hereinafter defined, Contractor shall commence and complete the construction p ton of repairs to the
underground utilities (sanitary sewer and water), street improvements and/or p o storm drain
improvements for the Contractor Projects pursuant to the Repair Work D '
p Documents, the City s
current specifications and requirements, this Agreement and the conditions or requirements q meats set
forth in the bonds required herein. Contractor shall secure all ermits and furnish urnlsh all labor, tools,
equipment, safety equipment, and materials necessary or the construction
Y proper er p and completion
of the work and provide all bonds required pursuant to this Agreement at C '
g Contractor s expense.
The City may issue a Repair Work Order for a Contractor pursuant Pro'ect t
� p o this Agreement at
any time between the Effective Date and the third anniversary f the Effective '
y ve Date, which 1s
If the City ails '
y to issue a Repair Work Order for a Contractor
Project on or before (an "Omitted Project"),'
� then Contractor shall
have no further obligation pursuant to this Agreement to make an repairs to '
y p the Omitted Project.
2. The scope and method of the repair work to be performed, the location of the
work within a development, and the plans, designs, ands specifications for the repairs epalrs shall all be
determined by the City and shall be set forth in or included with a
Repair Work Order, as
hereinafter defined (the "Repair Work Documents" which shall be
� sent by the City to
SETI'LEM ENT'AG REEM ENT AND MASTER CONSTRUCTION CONTRACT
19SSS.v2 PAGE 7 OF 18
Contractor, along with a written notice to proceed, all related to a specific p c D OE development
project. A Repair Work Order for each DOE project w development '
p p � ill be issued by the
Department of Transportation and Public Works of the City f Fort
y Worth on a form
substantially consistent with the "Authorization to Proceed and Work "
Order form attached
hereto as Exhibit "5"and sent to Contractor (a"Repair Work Order").
).
3. Contractor hereby agrees and binds itself to commence the construction on o f the
repair work related to a Repair Work Order that has been accepted or deemed accepted withi n
n
ten (10) business days after receipt of the Repair Work Order and to thereafter prosecute the
work continuously and with reasonable diligence and to full complete and finish Y p the same in a
good and workmanlike manner and strictly in accordance with the Repair Work ork Documents on
or before the completion date set forth in the Repair Work Order the "Completion "
� p ti on Date ) unless
Good Cause exists to extend the Completion Date '
p as determined by the City 1n its sole and
absolute discretion. "Good Cause" shall mean delays due to weather, acts
of God or that are the
result of other factors beyond Contractor's control that the City as deter '
ty mined �n its sole and
absolute discretion merit an extension of the Completion Date. Contractor tractor shall not be
completed with the work until it has passed final inspection by the Cit y, and the City has i
ssued a
final inspection approval notice reflecting that the work has complied '
p with the Repair Work
Documents. Contractor shall replace or repair all work not conforming
ng to the Repair Work
Documents and continue until Contractor has received a final ins ection approval pproval notice from
the City.
4. Absent a showing of Good Cause, if the Contractor should commence the work
but fail to complete the work related to a Repair Work Order before a
p Completion Date, there
shall be deducted from any monies due or which may thereafter become due
y Contractor, the sum
SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT
19585.v22 PAGE 8 of 18
of$400.00 per working day, not as a penalty, but as liquidated Y q damages, and the Contractor and
its Surety shall be liable to the City for such deficiency. The Part' •
y yes agree that these liquidated
damages are a reasonable approximation of actual .dama es If h
g the Contractor wholly fails to
timely commence and complete the work related to an y p ro•ect incl uded withi n n a Repair Work
Order (other than Phase One Projects) for which the Contractor '
o has issued a Notice of
Acceptance or which has been deemed accepted, then Contractor shall '
p � become obligated to pay
to the City an amount equal to the cost to perform the work.
5. Absent a showing of Good Cause, should the Contractor fail to
complete the work
as required pursuant to a Repair Work Order, then the City hall have the right ght to either demand
the Surety to take over the work and complete same in accordant '
p e with the Repair Work Order,
or to take charge of and complete the work in such manner as it may deem r '
y proper, and if in the
completion thereof, the cost to the City shall exceed the contract rice
p , as hereinafter defined, the
Contractor and/or its Surety shall pay to the City n demand an amount t equal to the excess cost.
d. Contractor agrees to perform the repair work required b
p q y the City on the
Contractor Projects as set forth in a Repair Work Order for the a men
p y t by the City of an amount
equal to fifty percent (50%) of the Unit Prices, and the City agrees to pay Contractor this s amount
for this work. Each Repair Work order issued b the Cit shall •
Y y specify the quantity of units for
each type of work and calculate the contract '
price for such Repair Work Order pursuant to these
terms. The amount to be paid by the City to Contractor for each Repair Work ork Order shall be
referred to as the "Contract Price" for that Repair Work Order. Payment yment of the Contract Price
related to a Repair Work Order will be made b the City y to the Contractor forty--five (45)
calendar days from the date of final acceptance of the work b the '
p y e City related to the Repair
Work Order.
SETTLEMENT AGREEMENT AND?MASTER CONSTRC?CTION CONTRACT
19585.v22 PAGE 9 OF IS
7. Contractor warrants that the work to be performed ursuant to a Repair Work
p p
Order shall be free from defects or failure for a period of five (5) ears from the date f y o final
acceptance by the City, and Contractor agrees to correct and repair any work that fails to comply
py
with this express warranty.
8. Contractor covenants and agrees to indemnify, hold harmless, and defend at
,
its own expense, the City, its officers, servants, employees, and contractors from
and
against any and all claims or suits for property loss, property damage, p ersonal injury,ry, or
death arising out of or related to the work and services to be performed pursuant to
the
Agreement by Contractor, its officers, agents, emplo ees, subcontractors licensees
�' , , or
invitees, whether or not anv such-injurv, damage, or death is caused in whole or in pa rt �
the ne li ence or alle ed ne li ence of the
Qy,.its o ricers, servants em to ees or
contractors. Contractor likewise covenants and agrees to indemnify and hold harmless the City
from and against any and all injuries to the City's officers, servants ees em to
p y or contractors
and any damage, loss or destruction to property of the City arising from the performance
of any
of the work performed pursuant to this Agreement, whether or not any such iniury or dama
c rs
caused in whole or in Part by the ne li ence or alle ed ne li ence of the CLtE, its of
tcers
servants em to ee or contractors. In the event the City receives a written claim for damages
against the Contractor or its subcontractors prior to final a ment with respect to an
p Y p y work
performed by the Contractor on a specific Repair Work order that is made the basis of the l
c aim
for damages, final payment shall not be made until Contractor submits to the Cit y satisfactory
evidence that the claim has been settled and/or a release from the claimant involved. Contractor
c or
shall, as soon as practicable, notify the City's risk management department of any occurrence
SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT PAGE 10 OF 18
19585.W22
that the Contractor reasonably believes may result in a claim for damages g s against the Contractor
or the City.
9. The Contractor agrees, upon the execution of this Agreement,g and before
beginning work, to make, execute, and deliver to the City the following bonds in the name of the
City in a sum equal to the amount of the Repair Work Order (the "Bonds"). The form of the
bonds shall be as herein provided and the surety ust first be acceptable to h
Y p the City. All bonds
furnished hereunder shall meet the requirements of Chapter 2253 of the
p Texas government
Code, as amended.
a. If the Contract amount is in excess of$25,000.00, a Payment Bond shall
be executed in the amount of the Repair Work Order, solely or the '
y e protection of all
claimants supplying labor and material in the prosecution of the work.
b. If the Repair Work Order amount is in excess of 100
$ 00 0.00, a
Performance Bond shall be executed in the amount of the Repair p Work order,
conditioned on the faithful performance of the work in accordance with the Repair Work
Order. Said bond shall solely be for the protection of the Cit .
Y
C. A Two-Year Maintenance Bond in the name of the City required uired for all
q
projects.
10. It is further agreed that the performance of this Agreement, whether in whole or in
part, shall not be sublet or assigned to anyone else b Contractor without the written tten consent of
the City, which may be withheld in its sole discretion. An y request for any sublease or
assignment shall be made in writing and submitted to the Department of Transportation and
Public Works of the City, with a copy to the Cit y .Attorne Y
SET'I'LEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT
19585.v22 PAGE 11 OF 18
I 1. ' Contractor agrees to pay at least the minimum per wage hour for
g p all Tabor as the
same is classified, promulgated, and set out by .the City.
12. Contractor agrees to comply with all laws rules and regulations
} affecting the
work to be performed pursuant to this Agreement, including the Charter a nd Ordinances of the
City.
C. Release of Contractor by the City
Effective upon the completion of the work b Contractor and the final
Y acceptance by the
City of the work performed by Contractor ursuant to a Repair Work p p o k order for a Contractor
Project, the City releases Contractor and its respective agents., representatives, insurers, affili
ates,
parent companies, successors, and assigns from any and all claims and damages g that it has
against Contractor that relate to the Public Works Improvements constructed ructed by Contractor for
such DoE prior to the work performed pursuant to the Repair Work or '
p der; provided this release
does not release any obligation contained in this Agreement and does n ' '
g of affect the City's rights
to pursue claims against (1) any developers and designers of the Contractor Pr (2) utility
g Projects; ut�l�ty
contractors and street contractors (other than Contractor); or (3) an other entities� Y that may be
liable for damages with regard to the Contractor Projects.
D. Release of the.Lily bv Contractor
Effective upon the completion of the work by Contractor and payment for the work and
the final acceptance by the City of the work performed b Contractor '
p y pursuant to a Repair Work
Order for a Contractor Project, Contractor releases the City and its respecti ve Ve agents,
representatives, officials, employees, insurers, affiliates, successors and assigns from om any and all
claims and damages which it has against the City hat relate to the Contractor tractor Projects.
SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT
19585. 22 PAGE IZ OF 18
E. Dismissal of Arbitration Proceedin s
Effective upon the completion of the work by Contractor and the final acceptance b
p y the
City of the work performed b Contractor pursuant to a Re
Y p pair Work order for a contractor
Project for a DoE covered by the Arbitration Agreements, the applicable arbitration
pp proceeding
related to that DOE shall be automatically terminated.
F. Attorneys' and Consultants' Fees and Costs
The Parties agree to be responsible to pay their own respective attorneys'p y and/or
consultants' fees and costs associated with the Parties' dispute as to the Failures.
G. No Admission of Liabili
Nothing contained in this Agreement shall be deemed, or in an way construed to
Y Y be an
admission of any liability by any Party to this Agreement. Rather, the Parties acknowledge said
actions have been taken in order to avoid the expense and inconvenience of litigation p t gation or
arbitration of a doubtful claim(s).
H. Capacity and Authori
The Parties or each signatory, as applicable, represent and warrant that: a
� ) they have the
legal capacity to and are duly authorized to execute and deliver this Agreement';g , (b) they have
taken all action and obtained all consent, if any, necessary to authorize the execution and
delivery of this Agreement, and (c) this Agreement is a legal, valid and binding obligati
on,
enforceable in accordance with its terms.
I. Ownership of.Claims
This Agreement shall be binding upon and inure to the benefit of the undersigned Parties
es
and their respective representatives, successors, and assigns. The Parties specifically call
g p y warrant
and represent that they are the current legal and beneficial owners and holders of the claims and
SETTLEMENT AGREEMENT AND MAS'T'ER CONSTRUCTION CONTRACT
19585.v22 PACE 13 OF 18
causes of action that are being released pursuant to this Agreement. The he P arty e s further warrant
that they have not sold, assigned, or otherwise transferred an such •
y ch claYms or causes of action to
any other person or entity.
J. Entiretv of A reement
This Agreement and all attached exhibits, documents incorporated rp by reference herein or
referenced and the Arbitration Agreements contain the full and complete agreement of the
Parties, and all other prior negotiations and agreements pertaining to the subject matter hereof
are merged into this Agreement. Each of the Parties hereby expressly disclaims ms relYance upon
any facts, promises, undertakings, representations or omissions
made by any other Party or
person, or such Party's or person's agents, representatives, or attorneys, prior y , p to the date of the
execution of this Agreement. Each of the Parties to this Agreement h •
g as had the benefit of its
own counsel of choice, has carefully reviewed this Agreement with their
g chosen counsel, and
executes this Agreement of their own free will and accord for the u o '
p rp ses and considerations
expressed herein. This Agreement cannot be reopened, terminated
or modified, except as
provided herein or upon the express written consent of all Parties to the Agreement.
K. Construction
All Parties, together with their respective attorneys, participated '
y , p p ed Yn the drafting and
preparation of this Agreement. Therefore, the Agreement shall not t be construed In favor of or
against any Party on the basis that any such Par did or did not
Party draft this Agreement or any
attachment to it. If any covenant, term, or condition of this Agreement •
g Bement Ys illegal, invalid, or
unenforceable for any reason, the illegality, invalidity, unenforce '
y� ability shall not affect the
legality, validity, or enforceability of the remaining terms covenant, conditions, or provisions of
this Agreement.
SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT
19585.v22 PAGE I4 of I8
L. Terms are Contractual
The provisions of this Agreement are contractual and are not mere recitals.
M. Multi,We Counterparts
This Agreement may be executed in one or more counterparts, all of which together� � g shall
constitute one agreement. In any action to enforce this Agreement, or an term hereof, it
g � y shall be
necessary only to introduce a counterpart of this Agreement executed b y y the Part against whom
enforcement is sought without the necessity of introduction of other counterparts rp or proof
as to
the execution of other counterparts by other Parties to this Agreement. Facsimile scanned and
photocopied copies of this Agreement shall be considered originals and binding on the Parties for
all purposes.
N. Headings
The headings of the sections and subsections of this Agreement are inserted for
convenience only and shall not control or affect the meaning, construction or effect of this
g s s
Agreement or any provisions hereof.
o. Governin2 LawNenue
This Agreement shall be construed under the laws of the State of Texas as the existed
y at
the time of execution of this Agreement. Venue for all actions shall be Tarrant Count y, Texas.
P, Joint LiabilY
Conatser Construction Tx, LP and Conatser Construction, Inc. shall have joint and
several liability for the obligations of Contractor pursuant to this Agreement.
Q. Bid Statute
Nothing in this Agreement shall be construed to authorize or require the City to take any
action which would violate the requirements of Section 252.021, Texas Local Government Code,
SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT PAGE 15 of 18
19585. 22
f
{ 1
1
or any other statute requiring competitive bidding in the awarding of contracts b y political
subdivisions.
R. Minority and Women Business Enterprises Ordinance
� nancc
Contractor shall commence and complete the construction of repairs heretofore
e
described, in compliance with the City's Minority and Women Business Enterprises ("MWBE")rp
ordinance and the City's goal for this proj ect by commi tting to 13% MWBE participation.
EXECUTED, effective as of the Effective Date.
CITY of FORT WORTH CONATSER CONSTRUCTION TX LP
By:
By.
Printed Name: PrKed ame:
Title: c. menginda Costa Title. •e-4ee,,a Afj ,teix.
ista City Manager
Date: 400, � �00,e
CONATSER CONSTRUCTION, INC.
APPROVED TO FQRMAND LEGALIIT-
By•
• By.
Printed Name. L—O, r�.,` f Pr• d •
Title: o� � a i .. . ._`�.
t ��
y-,
M&C Go C quop a1w 7
ed by:
� * F ob
0000000P 0000-4
.. Ay o �
0 0 0 O
$ame. �'"'0 a
Title: �
0 CP
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SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT p 8 `
19585 vZZ
AGE 1'6-OF 18
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned notary public, on this day personally appeared
_&-Ezva6L who is the zf_�- of the
City of Fort Worth, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity stated herein, and as the act and deed of said
City.
ACKNOWLEDGED BEFORE ME on this the Z�L V461 ay of e , 2011.
ly
EVONIA DANIELS
'1 I1i1I r -
*� �* My COMMISSION EXPIRES
July 10,2013 rrcri+'
tar Public In and For the State of Texas
My Commission Expires: --/t�
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned notary public, on this day personall appeared
� .uG�-L. who is the �. :�. of
Conatser Co struction Tx, LP, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity stated herein, and as the act and deed of said
Company(s).
ACKNOWLEDGED BEFORE ME on this the `' day of , 2011.
Notary Public In and For the State of Texas
My Commission Expires:
y`S
SET1'LEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRA(''T PAGE 17 OF 18
19585.v22
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned notary public, on t S day personally appeared
� who is the �-S -� .�..�` of
Conatser Cons uction, Inc., known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity stated herein, and as the act and deed of said
Company(s).
ACKNOWLEDGED BEFORE ME on this the day of , 2014.
Notary Public In and For the State of Texas
My Commission Expires:
SETTLEMENT AGREEMENT AND MASTER CONSTRUCTION CONTRACT PAGE IS OF 18
19585 X22
EXHIBIT "1" TO SETTLEMENT AGREEMENT AND
MASTER CONSTRUCTION CONTRACT
CONTRACTOR PROJECTS BY DOE
Alexandra Meadows
DOE 3923
DOE 4034
DOE 4499
DOE 4944
DOE 4991
DOE 5134
Arcadia Park
DOE 3533
DOE 3853
DOE 4148
DOE 4231
Basswood Park
DOE 3818
Bearcreek Vista Phil
DOE 4041
Boswell Meadows
DOE 4556
Ca bela's
DOE 4545
Chapel Ridge
DOE 2829
Columbus Heights
DOE 2908
DOE 3033
Coventry-Hills
DOE 3370
Crawford Farms
DOE 3 076
DOE 4214
DOE 4316
DOE 4561
ExiiIBIT"1"TO SETTLEMENT AGREEMENT PAGE 1
Crossing at Fossil Creek
DOE 3 006
DOE 3011
DOE 3317
DOE 3513
DOE 3655
DOE 3656
Crowley ISD Elementary
DOE 4355
Falcon Ridize Addition Ph4
DOE 4968
Fossil Park
DOE 3023
DOE 4679
Fox Run
DOE 1934
DOE 2546
DOE 2919
Hamlet Ph2
DOE 4897
Harvest Ridge
DOE 2459
DOE 3204
Heights of Park Vista
DOE 3422
Her]tage
DOE 3022
DOE 3336
DOE 3404
DOE 3806
DOE 3811
DOE 3816
DOE 3937
DOE 3951
DOE 4133
DOE 4204
DOE 4326
DOE 4350
DOE 4729
DOE 4924
DOE 4934
DOE 5279
Heritage Trace
DOE 2457
DOE 3641
EXHIBIT``t"TO SETTLEMENT AGREEMENT PAGE 2
Kin 's Rid e
DOE 3819
DOE 4030
DOE 4463
DOE 4556
Lasater
DOE 3 751
DOE 4133
Lost S urs Addition
DOE 2809
Marine Creek Estates
DOE 2745
DOE 3230
Marine Creek Hills
DOE 2394
DOE 2922
Mark IV Parkway
DOE 4791
McPherson Ranch
DOE 3 723
DOE 3 993
DOE 4348
DOE 4732
DOE 4814
Mercantile Center Rd
DOE 4981
Northbrook
DOE 3812
Pa rkyiew Hills
DOE 4128
Park Glen Blvd.Phl
DOE 3022
Sara
DOE 4454
DOE 4992
DOE 5506
Shiver Rd.
DOE2708
Stone Meadow
DOE 2812
DOE 3904
EXHIBIT"1"TO SETTLEMENT AGREEMENT PAGE 3
Sunset Hills
DOE 3450
S.Hulen Street
DOE 2708
Tehama Rid e
DOE 4471
DOE 4829
Trace Rid e
DOE 2817
DOE 2920
DOE 3558
Trinitv at Herita e
DOE 4477
Vista Nest Ph 4
DOE 4835
Villa a of Marine Creek
DOE 4902
Nell_ineton Point Ph 1
DOE 5287 �-
Whitney Meadows
DOE 3147
EXHIBIT"1"TO SETTLEMEN'r AGREEMENT PAGE 4
EXHIBIT "2" TO SETTLEMENT AGREEMENT
. AND MASTER CONSTRUCTION CONTRACT
UT Y SECRETARY
CONTRACT NO
AGREEMENT FOR RESOLUTION BY ARBITRATION
This Agreement for Resolution by Arbitration (the "Agreement") Is entered into on this
Ab(day of- , 2007 (the "Effective Date") by and among the City of Fart North, a
municipal corporation organized and existing under the laws of the State of Texas (the "City"),
and Conatser Construction Tip, LP, a 11rnited partnership organized and existing under the laws
of the State of Texas("Contractor).
RECITALS
WHEREAS, Contractor constructed certain public works improvements related to
underground utilitles(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 can 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(- )");.and ...... r ,:. .
WHEREAS,, the. Failures could be. caused by- ,number.of,factors related -to the
construction and/or design of the pavements and/or utilfies located under the pavements
including, but not limited to, (singularly or In combi
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and/or to accommodate expected trafl<ie loads, (vi)the failure of the City to maintain the street
pavements,or(vil)acts of Cod;and
WHEREAS, the parties dispute the causes of the Failures and their respecWe
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 oonsideration 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:
I. 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,
iii)failure to construct the utilities or utility trench backtills located within the street right-of-way In
ijcco'rdaribe With the contract docuib6 nfs,:(iNY failure of the pavement design to withstand actual - 3
traffic loads, (iv) failure of the pavement design to withstand differential movement of the
_ _ . ..,wr{.....n w.'•'. . .... .. ..-.w r.....•.+r Yrr i..w ...r r...r...L.'.-...r,...+.r ..r n ...,.. 1.J.�r:..-.w F.1...•.Y.S+...rr r.w.3. ..-+1.'.•i+r• -J��w..1.r.........•ivi. ..H.w.s_r..1.i •y ..
subgrade, M failure of the standards or design of the trench backtiil to prevent settlement, or
piping from the select backfill Into the embedment, (vi)failure of the City to properly maintain the
Improvements, or (AI) 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 enter 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 64000
1
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 speciflcatlons and other contmct 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 I(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 Marks
Improvements;
If the street pavement and sub-grade construction was not inoluded In the Public
.. .,r.i r..,.. t,..t... .. . ........I..:1....... _..._y.......w......._..._.... t 4..:J4._: -'4-1 -,.L- ,......N..%i...{'. .
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"pavements-,
(ill) if the water and sewer oonstruchon 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 su"rade
design to withstand the potential vertical rise, If any, imposed by the expansive
soil conditions, if any, beneath the subgrade;
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{v3 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) 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.
(vil) 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. W thin 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(go)days without the consent of both parties,
any further extension requiring written consent of both parties), the City's Consultant shall issue
,..:a Ailed,.. .ntt en initial report ("inri Report') addressing each *inure,,o..n the.L ..'roect
which sets forth the City`s Consultant's engineering findings and conclusions regarding the
cause-or-causes of-the�Fallure(s);~T-b the,-extent;,rthat-fie-ClVs.Consultant-cfoncludes`that the
Failure(s) was/were directly caused, In whole or In pert, 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 Defauir), 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 reVew, or other Investigative process
supporting the City's Consultants opinion that such deviation caused the Failure($). The lnrtial
Report shall state the City's Consultant's determination regarding the extent to which any of
Contractors Default, if any, caused, In part or in whole, the Fallure{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 Failures)based upon a reasoned evaluation for each cause
which contributed to the Failure(s),
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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 Failures), 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 "Bettenents"), the cost estimate prepared by the
City's Consultant shall itemize and show the estimated bolts of the Betterments to the design as
separate items of such estimate. The CIt)'s Consultant shall determine the Contractor's
responsibility,, if an , for the Cost Of The Repair b multi l In the Contractor's proportional
Y I� Y P Y g p �
responsibility, if any, for the Fallure(s), if any, times the Cost Of The Repair, as adjusted
(reduced)for the cosh attributable to Betterments, if any(the"Release Payment").
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r r l.• •ty •■ r r« •t'it et.•+r � •>I-" %:,..• v . i,J:."N . S.►t.,. ..r .• :.,.r ,
f. City's Demand Based on /ritual Report. Upon reoeipt of the Initial Report
thd'Ci Y6 I#g-dI Uf%dI Will Walks db Md("Clt.Y,4 DiiTc!hd"),t on t Contractor to perform the
Repair Work, subject to any applicable requirements for competitive bidding of such Repair
Mork, 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 InMal 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:Q)disputes the findings
and conclusions of the Initial Report regarding the Contractors responsibility for the Repair
Work or (il) 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 falls
to deliver Contractor's Response within the frtteen 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 Z;V
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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 oonclusions 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.
1. 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 Contractors responsibility for the Repair Work, as provided In subparagraph 1(g)
above, then the Initial Report shall not be final and binding and the Contractoes responsibility
shall be deciders as provided In the remainder of this Agreement.
2. Contractor's Engineering Consultant-Determination and Report_
f
a. Contractors Engineering Consultant If the Contractor disputes the
findings and conclusions of the Initial Report regarding the Contractor's responsibility for the
. _ w .-Repair-Work...by.,,the:Contractors Response, the Contractor-.:shall..also,,,,in. the-,Contractor's
Response, provide to the City a designation of an engineering consultant (the "Contractor's
Cbft(iltanf)-wino-shall—provide l the, parties, with--an engineering evaluatiom-and report--(the .
;`Second Report") concerning the causes of the Fallure(s), recommended Repair Work, the
estimated costs therefor, the Contractot-"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 Contractors
Consultant for reasonable cause due to the aomplexttyy of the Investigation in which event such
time may be extended up to a total of ninety(go)days without the consent of both parties, any
further extension requiring written consent of both parties. All oasts 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 considered by the City's
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Consultant In connection with the initial Report Additionally, the Contractors 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 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
perfbrm 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
Contractors Consultant`s engineering evaluation shall include the factors described In
paragraph 1(c)(i)—(vii)above except to the extent the ContracWs Consultant agrees with the
Initial Report.
3. Meeting of Consultants. Within the thirty ( ) 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 Contractors responsibility for the Repair work and the oast 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 Reparf)
. , . .- .. .. r R . ..... i r ..y .. r1r .....• y ! ... • ♦• ... . , a !• .w•1L•
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)clay period, as provided In paragraph 3 above, the two oonsuftants shall jointly select
(within ten (1 0) 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
Contractors Consultant and City's Consultant fail to timely appoint a neutral arbitrator, then
within ten (110) days of their failure to appoint (being frfty (50) days from the date the City
received the Second Report) (the "Arbitrator Designartlon Date") each of the parties may
designate three possible arbitrators that are licensed engineers. If a party fails to designate
three possible arbitrators timely, them 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 fall to so designate), each party shall runic the candidates from 1 to 5, with 1
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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 scare 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 vAll 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 respecUve positions regarding each Issue. Each of
these submittals from the Consultants shall be delivered to the Neutral Arbitrator within ten(t o)
days from the date the Neutral Arbitrator was appointed. The scope of the Neutral Arbitrators
authority shall be limited to deciding the Issues on which the Consultants disagree. The Neiral
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 party discussions with either Consultant or either
. 0 L parhes representatives, except-to schedule-meetings, The-Neutral.-Arbitrator..,shalf.issue an
award within forty {40} days of his appointment (unless an enlargement of such time is
y ... "rested'by'th-d Nduttal-Arbitrator,for reamnablv'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 Cortractoes 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 IntUal Deport 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 'Id 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 servloes of the Neutral Arbitrator to the Contractor. Should the Neutral
Arbitrator determine that the disputed findings and determinations of the Initial Deport authored
8
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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 Mork(whether such determination is final and binding as provided In paragraph I(h), 3,
or 4(d) above), the Contractor shall notify the City In writing of Its electlon 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(go)days following the date of the final determinaVon of liability as provided in paragraph
. ..
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1(1i),73,"&4(d)a6dV6.' •PclyrMe"i t'bf'tt%'Rb d$�f{PdSib&fff6e a 0artiduI6f'DOE'Prb shall fully,
satsfy the Contractor's obligations regarding the Failure(s) for a particular DOE Project and
.. . +r..►........r.'.:. -..r.•,.,,.. ...7.......w.l.w...,`........i+....r-•.a..,.r..si.L..1..tv..M.wr L.F..,+.-.-i•ti.::war...s.,..ni...+::.w.4 rwr..&%-A.-4.6 r.:war.:r�:..fr+.�.:�...w rihvrnt.�:�.+,:.l..:r ri m+..f. .,•.:r:-wiw:..w....- _. _ :s
shall discharge the Contractor from any and all further liability in ccnnection therewith. The C 3i
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 vmrk rewired In connectlon 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 rewired, Contractor may elect to perform the Repair Work, as part of Contractor's original
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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 Contractors obligations for the Failures)
for a particular DoE Project and shall discharge the Contractor from any and all further Ilability
In connection therewith, except for the Contractors 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
y. i ..s. ._;..r,.':t '. 3 ? Tw S'/'y. tiy.:e:f :e.'..i "ir' • S r ,•y
for the Repair Work an amount equal to the total estimated costs for such Repair Work as finally
_ _. .detemined.
Payment for that DoE Project less the amount of any other release payments applicable to
other WE Projeefs that the Cry elects to apply to this Repair Mork in lieu of collection of
payment (the "City's Payment"); 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 erect contract amount by the
amount of the Clty's Payment for such work. tf the Contractor so elects, the Contractor shall
commence performance of such repair work within ninety (90) mays 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 Mork shall be completed In a good and workman like manner,
consistent with the plan of repair and free from defects in materials and workmanship.P
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Performance of such Repair Work for a particular DOE Project shall satisfy and discharge the
Contractor's obligations for the Fallure(s) for a particular DOE Project and shall discharge the
Contractor from any and all further liability In connection therewith, except for the Contractoj'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 C!Vs Consultant or a third party to prepare plans and specclications 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 deterTnlnes 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. _
and City is an agreement to arbitrate the disputes that are the subject matter of this Agreerent
and shall be enforceable pursuant to the Federal Arblh Lion Act,
7. Contractor's Bid on Pending or Future Contracts. At all fiimes 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" sWI not be considered a basis to
designate the Contractor as not responsible for purposes of accepting bids on pending contracts
which will be released.
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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 authortmd 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 entitied as a municipatity organized and existing under the
laws of the Mate 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 afther party Is required to pbtain the
services of an attorney to enforce this Agreement, the prevailing party, In addition to other
_ remedles wallable;.shall--be---entiffed to recover-reasonable,-attorney's-fees and--costs-of court;--
pursuant to Section 271.169,Texas Local Government Code.
a. 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.
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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 representafion 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.
L Supplementary Documents. The parties, Individually, and in their
representative capaclbes, 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 personalty 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. Sox 16448
Fort Worth,-Texas 76119
With a copy to:
v .. •...-..v. ...-...-..... .... wr.y r W.1MV rwM r..ti..MMww....w .rn ...r •.._Ya r. .. t wr.• .. .. ....- .. . - .. ... .. rr... .,. •.i.. .....r r. ._ _
Stephen D. Harrison
Harrison&Steck, P.C.
81 2 Main Street,Suite 1100
Fort Worth,Texas 78102
(8 17)348-0400
(817 348-0406(far�simile)
To City:
City of Fort Worth
Attn:James Riddell
1000 Throckmorton Street
Fort Worth,Texas 76102
(817)392-8359(facslrnlle)
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Mirth a copy to:
Hunter T. McLean
Whitaker, Chalk, Swindle&Sawyer, L LP
301 Commerce Street,Suite 3500
Fort Worth,Texas 75102
(817)878-0500
(S 17)878-0501 (facsimile)
Executed and effective as of the Effnfive gate.
CITY OF FORT WORTH
DATED: Z- �• SY: r
__,.._._.._._.err,A.Ott - ..,.._.
Assistant City Mai'oger
TITLE:
Attested By:
APPROVED AS TO FORM AND CONTENT: .
learry Mend
_ City Secret
.• i. fie. S !. : c C ... +.,. _ . _ . -
Yy
ATT RNEY FOR CITY OF FIORT WORTH
CONATSE ONSTRUC . LP
DATED: • Owl
1411 � 70
NAME: li, .
T-rrL E. .
APPROVED As TO FORM AND CONTENT:
ATrQR FOR
CONATS R CONSTRUCTION TX, LP °qtr ct h thori gatioA
Date
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=N/'A[Brr fgAp
Subdivision and Additional Phase DOE Number
Tehama Fridge Phase f 4471
Heritage Phase 3-D, Secf ion 18 4326
Nadia Park Phase 5, Sec#fon 1 4145
,
15
EXHIBIT "3" TO SETTLEMENT AGREEMENT
AND MASTER CONSTRUCTION CONTEAU,
,_),0 rF1ACT NO.
AGREEMENT FOR RESOLUTION BY ARBITRATION w
&2This A regiment for Resolution by Arbitration (the "Agreement") is entered into on this
'day of , 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 Donatser Construction, Inc.., a corporation organized and existing under the laws of the
State of Texas("Contractors).
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
cori�tructibn 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 sub g rades 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
trench backfill to prevent settlement, or piping from the select backftll Into the embedment, v
the failure of the City standards and/or design requirements for the street sub 9 rade and
pavement to adequately mitigate or accommodate differential movement of the underlying soil
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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 establM 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 Ceotechnical "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(1) falure to construction the pavement In accordance with the contract documents,
(III)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
g;v�grp ft M fi11u,fe.pf.tho Am-n0arO Q.r 4g4Jq l of tie trench bec f! to prevent settlement or
piping from the select backfill into the embedment, (A)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 informatlon 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 (1 o)
2
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 I(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 R is reasonably practicable, the City's
Consultant's engineering evaluation shall include, but shall not be limited to the following:
0) A determination of the Contr~actoes compliance, or failure in compliance, with the
Contract documents, in performing the construction of the Public works
improvements;
iii} If the street pavement and sub-grade construction was not included in the Public
ftrks irnprovements gQnstructgd byontrctgr, p deter,mination of the street
pavement contractor's compliance, or failure In compliance, with the Contract
Documents for construction of the street sub-grades and pavements;
(iii) If the grater 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 night-of-way;
Div) 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;
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(v} 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;
(vi) 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 Fallure(s)• To the extent, that the City's Consultant concludes that the
Faiiure�s} w4sli e—ie, dlredly caused in'w-ho at- in` �ark•_ nt ..�; .�
p r by Contra�fior s ����ure �o mean 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 Fallure(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 determinatl~on. 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 Failures) based upon a reasoned evaluation for each cause
which contributed to the Failure(s).
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e. City's Consultant's Initial Report w 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 $1 00.00 than the Cost Of
The Repair would equal $1 05.00. 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 lnitlal 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 p 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.
i
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 Contractors
5
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 Ig), 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 t(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
Consultant) who shall provide the parties with an engineering evaluation and report (the
"Second Report} concerning the cause$ of the Failures), recommended Repair Work tine
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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 (SO) 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 (go) 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 considered by the City's
6
Consultant in connection with the Initial Report. Additionally, the Contractor'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 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 I(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. Select on. If the 0 on i ra or d s Outes the �ni#�al > apart ifta thi
Contractor's Consultant and Csfy'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 ter! (10) days of their failure to appoint (being fifty (50) days from the date the City
received the Second Report) (the "Arbitrator Resignation Date") each of the parties may
designate three possible arbitrators that are licensed engineers. If a party fails to designate
throe 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 0, with 1
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being their favorite choice and g 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 coln 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 (1 o)
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 pare 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
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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 l 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 panes as an arbitration award and judgment may be entered upon the award
In accordance with the Federal Arbitration Act confirming the award,
5, Contractors 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), 31
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 iiablilty 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
small discharge#lip QpntmQtQr ftm Rny arid,pil f0her liabilit y in connectiop therewith.ewith: The City
may, but is not required to elect to defer collection of the Release Payment and in lleu 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
9
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 dlllgently 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.
G. Election to Perform Fork w Contractor Partially at Fault for Fallure(s)
and/or There Are Betterments.
(1) 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 Iess,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 colleWon of
payment (the "City's Payment"); 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 materials and workmanship.
10
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 liabllity in connection therewith, except for the Contractors
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 suffIclent
detail to allow for the Repair work to be bld by third parties. In the event the Contractor elects
to perform the Repair Work, but the City determines that it is requlred to award the contract for
construction of the Repair Fork 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.
5. Enforceable 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 snail 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 Exhlbit "A* shall not be considered a basis to
designate the Contractor or Constser Construction TX, LP as not responsible for purposes of
accepting bids on pending contracts which will be released.
It
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 adrnlssion 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 organlzed 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 thlyd-party.
No other party shall have any rights hereunder, nor shall they be entitled to assume that the City
q
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 rewired to obtain the
services of an attorney to enforce thls 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
lags of the State of Texas and the applicable laws of the United States of Amerlca. This
Agreement is performable and enforceable In Tarrant County, Texas.
g. Invalid Provisions. If any provision of thls 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
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 mall,
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, Inc.
P.O. Box 15804
Fort Worth, Texas 76119
Ilvith a copy to:
Stephen D. Harrison
Harrison'&Steck, P.C.
512 Main Street, Suite 1100
Fort worth, Texas 78102
(8"17)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 3666 Ll--a
Fort Worth, 'Texas 76102 r.......,
(617) 878-0500 Gong' o f thor i z at f on
(817) 878...0501 (facsimile)
cfl
D�tt�
Executed and effective as of the Effective Gate.
CITY OF RT WORTH
r
DATED, BY:
NAME.,...._...._.._.. ffg Ar Ott
Asidstant City Manages'
TITLE:
ir..rwmnnn.r•.rrr.unnrr-ni.��w.nrmrrrrr.r.w•...+.w+ww...r
Attested By:
APPROVED AS TO FORM AND CONTENT.
JYL MarWHendrix
i
AT_T NEY FOR CITY OF FORT W__5_RTH
GONATSER-GONSTRUG—TION;INC;
r
DATE D:
. .._............_._._....._._•....___.............._. E3Y;
TITLE: �� r
APPROVED AS TO FORM AND CONTENT:
ATTORNEY FOR ..�
CONATSER CONSTRUCTION, INC.
14
EXHIBIT"AN
Subdivision and Additional Phase DOE Number
Fox Run Addition Phase 1, Section 2 1934
Heritage Phase 2E 3951
Trace Ridge Phase 2 2817
Whitney Meadows Addition 3147
Harvest Ridge Addition Phase 1B 3204
Heritage Phase 2B, Sect 1 3022
Crossing at Fossil Creek Phase 1 B 3011
Crossing at Fossil Greek PH 111 3513
Fox Run Addition Phase 111 2919
The Heights of Park Vista 3422
Harvest Ridge Addition Phase 1A, Unit 1 2459
Arcadia Parr Phase 4, Section 1 3533
Coventry Hills Phase 111 3370
Crossing at Fossil Creek Phase 11 3317
Trace Ridge Phase 3 2920
Crossing at Fossil Creek Phase 1A 3006
Heritage Trace Parkway 2457
Lost Spurs Addition 2809
Crossing at Fossil Creek Phase IV 3655
Crossing at Fossil Creek Phase V 3688
Sunset Hills Addition 3450
Crawford Farms Phase l 3076
Heritage Phase 3D-B, Section 1A 3816
Heritage Phase 2a, ,Section 1 3806
Heritage Phase 3-2A, Section 313 3404
Heritage Phase 3a-B, Section 2A 3937
Heritage Phase 3D-C, Section 1 3811
HiMt'gd TrdCe Park dy '3641
Coventry Hills Phase 1 2324
Northbrook Addition Phase 111 3812
Trace Ridge Phase 4 3558
Fox Run Phase 2 2546
Lasater Addition Phase 2, Section 2 3761
Heritage Phase 2A, Section 3A 3336
Lasater Addition Phase 2, Section 3 4133
Arcadia Park Phase 4, Section 2 3853
Arcadia Parr Phase 4, Section 2 4231
15
EXHIBIT "4" TO SETTLEMENT AGREEMENT
AND MASTER CONSTRUCTION CONTRACT
UNIT PRICES
Codes Labor and Materials Unit Prices
EA Project Designation Sign $ 200.00
LS Utility Adjustment(as needed as determined by the City) $ 7,000.00
SY Remove Existing 5-Inch to 6-Inch Reinforced Concrete Pavement $ 4.00
SY Remove Existing 6-Inch HMAC Pavement $ 4.50
SY 6-Inch Lime Stabilized Subgrade $ 3.25
TON Lime for Subgrade Stabilization $ 132.88
SY 6-Inch HMAC Base Course Type B $ 25.00
SY 2-Inch HMAC Surface Course Type D Mix $ 8.50
SY Geogrid(Tensar TriAx TX140-475)—Install $ 1.00
CY 8-inch Flex Base—For Geogrid(TxDOT Type A, Grade 2) $ 17.00
SY 8-inch Reinforced Concrete Pavement (Using Machine) $ 34.70
SY 7-inch Reinforced Concrete Pavement (Using Machine) $ 34.10
SY 6-Inch Reinforced Concrete Pavement (Using Machine) $ 33.50
LF 7-Inch Integral Concrete Curb $ 2.00
SY Remove and Replace Failed Reinforced Concrete Panels (8-inch)(Not Using $ 59.85
Machine)
SY Remove and Replace Failed Reinforced Concrete Panels (7-inch)(Not Using ,$ 58.60
Machine)
SY Remove and Replace Failed Reinforced Concrete Panels (6-inch) (Not Using $ 57.35
Machine)
LF Remove and Replace 7-inch Concrete Curb $ 3.00
EA Remove and Replace 10-Ft. Storm Drain Inlet Top $ 1,000.00
EA Remove and Replace Double 10-Ft. Storm Drain Inlet Top $ 1,200.00
SF Remove and Replace 6-Inch Concrete Driveway $ 5.00
SF Remove and Replace 4-Inch Concrete Sidewalk $ 4.00
SF Remove and Replace 4-Inch Concrete ADA Wheelchair Ramp with Dome Tiles $ 12.00
SF New 4-Inch ADA Concrete Wheelchair Ramp with Dome-Tiles $ 8,25
LF Silicon Joint Sealant for Concrete Pavement $ 1.00
CY Flex Base (for Panel Replacement) $ 16.00
CY Unclassified Street Excavation $ 2.00
CY Concrete for Replaced Panels Sub Base as Needed $ 65.00
LF 6-Inch Perforated Sub Drain Pipe $ 9.00
CY Utility Trench Repair $ 2.00
LF Trench Safety $ 2.00
CY Top Soil $ 6.00
EXHIBIT 114"TO SETTLEMENT AGREEMENT PAGE 1
EA Manhole—Adjustment $ 350.00
EA Water Valve Adjustment $ 250.00
EA Water Meter Adjustment $ 35.00
SY Grass Sod Replacement $ 3.00
EA Painting Curb House Addresses $ 25.04
CY Borrow-Unclassified Fill for Trench Repair $ 7.04
EA Remove and Replace Mailbox(es) $ 50.04
EA Remove and Replace 30-Ft HMAC Speed Cushion wlstripping $ 1,900.04
EA Remove and Replace 40-Ft HMAC Speed Cushion wlstripping $ 23400.00
EXHIBIT 114"TO SETTLEMENT AGREEMENT PAGE 2
EXHIBIT "5" TO SETTLEMENT AGREEMENT AND
MASTER CONSTRUCTION CONTRACT
PHASE ONE PROJECTS
l. Calico Rock Drive(from 300 ft. east of Searcy Drive to Table Rock Drive)
Crossing at Fossil Creek Phase 1 B
DOE#3011
Plan#W-0932
2. Ridgepointe Road(from Berry Wood Trl to 215 ft. east of Elmhurst Drive)
Harvest Ridge Addition Phase IA
DOE#2459
Plan#W-1570
3. Hunters Creek Drive(from Garden Springs Drive to Hunters Creek Ct.)
Fox Run Addition Phase 3
DOE#2919
Plan#W-0907
4. Cogley Dr. (from Burts Dr.to Heritage Trace Parkway)
Heritage Phase 2A, Section 1
DOE#3022
Plan#W-0935
5. Burts Dr. (from 135 ft. west of Cogley Dr.to General Worth Dr.)
Heritage Phase 2A, Section 1
DOE#3022
Plan#W-0935
6. Aldersyde Dr. (from 240 ft. east of Kenilworth Dr.to 120 ft. east of Delaney Drive)
Sunset Hills Addition
DOE#3450
Plan#W-1076
7. Sunset Hills Dr. (from Kenilworth Dr.to Lamberton Terrace)
Sunset Hills Addition
DOE#3450
Plan#W-1476
8. Wyndrook St. (from 365 ft. east of Notting Hill St. to Knights Court)
Kings Ridge Phase 2
DOE#4430
Plan#W-1279
ExijIBIT"S'TO SETTLENIEN"i,AGREEMENT VAGE I
9. Bull Run(from 100 ft. north of Bliss Drive to Carlotta Drive)
Tehama Ridge Phase 1
DOE#4471
Plan#W-1476
10. Carlotta Drive(from Bull Run to 450 ft. east of Bull Run)
Tehama Ridge Phase 1
DOE#4471
Plan#W-1476
11. Merrill Lane(from Bull Run to El Camino Drive)
Tehama Ridge Phase 1
DOE#4471
Plan#W-1476
12. Meridian Ln(from Raymond Dr to Raymond Dr)
Heights of Park Vista
DOE#3422
Plan#W-1069
13. Raymond Dr(from Meridian Ln to 225 ft. east of Meridian Ln)
Heights of Park Vista
DOE#3422
Plan#W-1069
14. Spur Ridge Ct(from Cul-de-sac to Chaps Ave)
Coventry Hills Phase 3
DOE#3370
Plan#W-1054
15. Bacon Dr(from Hawley Dr to Bayard St)
Heritage Phase 3d-B, Section 1 B
DOE#4326
Plan#W-1383
16. Diamond Trace Trail(From Shadow Trace Dr.To 130 ft. East of Shadow Trace Drive)
Trace Ridge Phase 3
DOE#2920
Plan#X-1 1323
17. Old Richwood Ln (from Cul-de-sac to Wellsburg Way)
McPherson Ranch Phase 3
DOE #4308
Plan#W-1362
18. Gray Rock Dr(at Table Rock Dr)
Crossing at Fossil Creek Phase 3
DOE#3513
Plan#W-1097
19. Table Rock Dr(from Gray Rock Dr to 135 ft. north of Calico Rock Dr)
Crossing at Fossil Creek Phase 3
DOE#3513
Plan#W-1097
20. Brevet Ln(from Thorp Ln to Wexford Dr)
Heritage Phase 2E
DOE#3828
Plan#W-1197
21. Forney Trl(from 9740 Forney Trl to Stripling Dr)
Heritage Phase 2E
DOE#3951
Plan#W-1246
22. Senator Dr(from Cul-de-sac to 5116 Senator Dr)
Heights of Park Vista
DOE#3422
Plan#W-1069
23. Stirrup Way(from Shiver Rd to Chaps Ave)
Coventry Hills Phase 3
DOE#3370
Plan#W-1054
24. Western Meadows Dr(from Eagle Trace to Stetson Dr,N)
Coventry Hills Phase 1
DOE#2324
Plan#W-0854
25. Whitney Ln(from Big Springs Dr to Whitney Ct)
Whitney Meadows Addition
DOE#3147
Plan#W-0975
26. Any ancillary road segments that touch upon a segment above that the City determines that for efficiency
purposes should be repaired along with the listed segments. This includes abutting road segments or
extensions of the enumerated segments. In addition, any road segments in the vicinity of the above listed
segments that the City and the Contractor agree should be repaired in Phase One for efficiency purposes.
ExiiiBil'«5""IU0 SE'r-rt.t.mENT AGREEMENT PAGE 3
EXHIBIT"6"TO SETTLEMENT AGREEMENT AND
MASTER CONSTRUCTION CONTRACT
AUTHORIZATION TO PROCEED AND WORK ORDER
FORTWORTH
Transportation and Public Works
NOTICE AND AUTHORIZATION TO PROCEED
and
REPAIR WORK ORDER
DATE:
TO:
This Notice and Authorization to Proceed and Repair Work Order("Repair Work Order")
is provided pursuant to that certain Settlement Agreement and Master Construction
Contract by and among the City of Fort Worth (the "City"), on the one hand, and Conatser
Construction TX, LP and Conatser Construction, Inc. (collectively referred to as
"Contractor"), on the other effective as of ,2011 (the "Settlement
Agreement"). All work performed pursuant to this Repair Work Order shall be
performed pursuant to the terms of the Settlement Agreement. _
The effective date of this Repair Work Order is set forth above. The time allotted for
completion of the work requested is calendar days and the Completion Date is
You must advise the City's designated Construction Inspector before any work
commences.
D.O.E. PROJECT NUMBERS INCLUDED IN THIS AUTHORIZATION TO PROCEED
and WORK ORDER: (list)
DETAILS ASSOCIATED WITH EACH DOE:
DOE PROJECT NUMBER
Ettiierr��6„TO SET77.k:'NEM1'7 AGREEMENT PAGt. 1
ASSIGNED CONSTRUCTION INSPECTOR
SCOPE, METHOD OF REPAIR, LOCATIONS AND PLANS, DESIGNS,
SPECIFICATIONS AND LIMITS OF WORK UNDER THIS DOE PROJECT NUMBER:
DOCUMENTS ATTACHED INCLUDE THE FOLLOWING:
Pursuant to the Settlement Agreement,you have three (3) business days to reject, in
writing, this Repair Work Order,which rejection notice must be sent to the representative
from the City that issued the Repair Work Order by Certified Mail Return Receipt
Requested and postmarked within the three (3) business days to qualify as timely notice. If
you fail to provide timely written notice of rejection, then you shall be deemed to have
accepted this Repair Work Order and shall be bound to complete the work set forth herein
pursuant to the terms of the Settlement Agreement, this Repair Work Order and within
the time specified in this Repair Work Order.
CITY OF FORT WORTH
By:
Printed Name:
Title:
Date:
ACCEPTED:
DATE:
CONATSER CONSTRUCTION TX,LP
By:
Printed Name:
Title:
Date:
CONATSER CONSTRUCTION, INC.
By:
Printed Name:
Title:
EXHIBIT"C"TO SE"I"TLENIF:N7,AGREEMENT PAGE 2
M&C Review Page 1 of 2
Official site of the City of Fart Worth,Texas
CITY COUNCIL AGENDA FoRTWoRnj
COUNCIL ACTION: Approved on 11/15/2011
DATE: 11/15/2011 REFERENCE NO.: **C-25277 LOG NAME: 2000NATSER
ODE: C TYPE: CONSENT PUBLIC NO
O HEARING:
SUBJECT: Authorize Execution of Agreements for Resolution of Litigation Involving Premature Street
Failures with Conatser Construction, Inc., and Conatser Construction Texas, LP (ALL
COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute Agreements for
resolution of litigation relating to premature street failures with Conatser Construction, Inc., and
Conatser Construction Texas, LP.
DISCUSSION:
Conatser Construction, Inc., and Conatser Construction Texas, LP, (Conatser), under City-awarded
contracts or developer-awarded contracts stemming from Community Facility Agreements,
constructed certain public infrastructure related to water, sewer, street, and/or storm drain
improvements for the City. Some of the street improvements constructed by Conatser have failed
prematurely.
On June 20, 2007, (City Secretary Contract No. 35400) and June 26, 2007 (City Secretary Contract
No. 35444), the City and Conatser entered into Arbitration Agreements which provided for the
resolution of any disputes between the City and Conatser relating to the failed streets through
arbitration rather than litigation. The Settlement Agreement described herein modifies, but does not
invalidate, the Arbitration Agreements.
Subsequently, the Department of Transportation and Public Works and the City Attorney's office has
been able to negotiate a Settlement Agreement whereby Conatser will make the necessary repair
and reconstruction of infrastructure. The City and Conatser will share equally 50/50 the total cost for
all completed work based on pre-established and agreed unit prices. Repairs will be made to 355
street segments representing approximately 128.2 lane miles of street which are listed in the attached
exhibit.
Under the terms of the Settlement Agreement, the City will assign projects to Conatser in discrete
groups of streets, the order of which will be determined by the City, with the worst street segments
assigned first. After the completion of the Phase one Projects, and at the end of each phase
thereafter, if any party is dissatisfied for any reason they can elect to stop future performance under
the Settlement Agreement, in which case the remaining disputes between the City and Conatser will
be resolved pursuant to the terms of the Arbitration Agreement. The City must issue any Repair Work
Order on or before October 18, 2014, the third anniversary of the effective date of the Settlement
Agreement.
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 City's goal for MNVBE participation on the project is 13 percent.
http://apps.cfwnet.org/council—Packet/mc_review.asp?ID=15674&councildate=1111512011 11/18/2011
M&C Review Page 2 of 2
FISCAL INFORMATIONICERTIFICATION:
The Financial Management Services Director certifies that this action will have no material affect on
city funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manner's Office b Fernando Costa (0122)
Originating Department Head: Douglas W. Wiersig (7801)
Additional Information contact: George Behmanesh (7014)
ATTACHMENTS
C-25277_FPM F Cana_ster-List Match-Agreemen 9-1.4-20 1.1 pf
http://apps.cfwnet.org/council-Packet/mc_review.asp?1D=15674&councildate=l 111512011 11/18/2011