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