HomeMy WebLinkAboutContract 53944 RECEIVE0 CSC No.53944
MAY 2 g 2020 SETTLEMENT AGREEMENT AND RELEASE
CV OFFORT
C17ySFCRE1* This Settlement Agreement and Release("Agreement")authorized by the City Council on March
17, 2020(M&C 20-0147) is by and between the City of Fort Worth, a home-rule municipality organized
under the laws of the State of Texas and William J. Schultz, Inc. dba Circle C Construction Company, a
Texas corporation.
A.
Definitions
In addition to the terms defined in the body of this Agreement,the following terms shall have the
definitions ascribed to them as follows:
"City"means the City of Fort Worth,Texas,and its officers,representatives,agents,servants,and
employees.
"Company" means William J. Schultz, Inc. dba Circle C Construction Company, a Texas
corporation, and/or its partners, representatives, members, managing members, officers, managers,
proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations,
successor entities,assigns,predecessors,stockholders,administrators,contractors,and related companies.
"Contract" means Fort Worth City Secretary Contract ("CSC") Number 45817, a construction
Contract between the City of Fort Worth and Company.
"Parties"means the City and Company.
B.
Recitals
WHEREAS, the City and Company entered into Fort Worth City Secretary Contract Number
45817 on or about July 14, 2014, for the purpose of hiring Company to perform Clear Fork Drainage
Basin M-210 Sewer Improvements in the original amount of$4,145,081.00;
WHEREAS, the Contract was amended five times by change orders for a total contract amount
of$5,180,744.00;
WHEREAS, prior to closing the Contract, Company sought additional compensation in the
amount of$182,265.13 for work allegedly performed as directed by City during the term of the Conb'act
("Claimed Amount");
WHEREAS, the City rejected the claimed amount on the grounds that the City cannot by iarw
exceed the original contract amount by 25%;
WHEREAS, the Contract was closed on January 8, 2020 and the City issued a final payment to
the Contractor completing the total contract amount;
WHEREAS, upon closure of the Contract, Company filed a claim with the City seeking the
Claimed Amount;
WHEREAS, the City investigated the Claimed Amount and finds that it is valid and owed to the
Contractor;
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CITY SECRETARY
FT WORTH,TX
WHEREAS, the City Council authorized payment of the Claimed Amount by M&C 20-0147 on
March 17,2020; and
WHEREAS, except as may be set forth below in the terms of the Agreement, the Parties hereby
agree that the following terms and conditions shall constitute full and final settlement pertaining to the
payment of the Claimed Amount.
C.
Agreement,Release,& Covenants
NOW, THEREFORE, the Parties hereto, in consideration of the mutual covenants set forth
herein and intending to be legally bound hereby, stipulate and agree as follows:
1. The recitals set forth above are true and correct and form the basis upon which the Parties
have entered into this Agreement and are incorporated herein by reference.
2. The City hereby pays to the Company the amount of ONE HUNDRED EIGHTY-TWO
THOUSAND TWO HUNDRED SIXTY FIVE DOLLARS AND THIRTEEN CENTS ($182,265.13),
which represents the Claimed Amount over and above the payment capacity of the Contract.
3. Upon full receipt of all amounts due to the Company pursuant to terms of this settlement,
the Company does hereby COMPROMISE, SETTLE, RELINQUISH, RELEASE, ACQUIT, and
FOREVER DISCHARGE the City from and against any and all claims, demands, debts, liens, costs,
expenses, actions, and causes of action of whatsoever nature, description of character, whether in tort or
in contract, or by virtue of the common law, statute, or regulation,known or unknown,heretofore existing
between the City and Contractor, whether known or unknown, which may have accrued or may accrue,
on account of, arising from, or in any manner growing out of, relating to, resulting from, or in any way
connected to Contract referenced herein.
4 The Parties warrant that no promise or inducement has been offered except as set forth
herein; that this Agreement is executed without reliance upon any statement or representation of any
person or Party's release, or its representatives, concerning the nature and extent of the losses, injuries,
damages, and/or legal liability therefore; and that the acceptance of the consideration set forth herein is in
full accord and satisfaction of all claims set forth herein.
5. It is understood that this is a compromise of a claim. The City and Company desire to
compromise and settle all matters and things to avoid the hazard, inconvenience,uncertainty, and expense
of litigation.
6. The Company represents and warrants that it is the sole owner of the claims, causes of
actions, and rights-in-action being released herein, and it has not transferred, assigned, or otherwise
encumbered said claims or any part thereto.
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7. The Parties hereto shall not assign or transfer their interests and obligations set forth in
this Agreement without the prior written consent of the other parties, and any attempted assignment or
transfer of all or any part hereof without such prior written consent shall be void.
8. This instrument contains the entire agreement between the Parties as to the matters
contained herein and the terms of this instrument are contractual and not merely recitals. There are no
other agreements, either written or oral, and this Agreement supersedes all earlier representations,
negotiations, or agreements about this matter. The Parties acknowledge that the covenants, promises,and
representations made herein are binding on,and inure to,the benefit of each of the Parties.
9. The Parties represent that they have consulted, or had the opportunity to consult, an
attorney to seek legal counsel regarding the contents and effects of this Agreement. The Parties further
represent that they have been informed of the content and effect of this instrument and that the instrument
is executed as their act and deed and of their own free will.
10. In the event that any provision of this Agreement is held void, voidable, or
unenforceable,the remaining portions shall remain in full force and effect.
11. If any action, whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County,
Texas or the United States District Court for the Northern District of Texas —Fort Worth Division. This
Agreement,including any exhibits,shall be construed in accordance with the laws of the State of Texas.
12. The Parties represent and warrant that they are over the age of eighteen (18) years,
competent to execute this Agreement, have carefully read the foregoing Agreement, and know the
contents thereof and have signed the same of their own free will and with the advice of counsel, if
applicable.
13. This Agreement may be executed in several counterparts, each of which will be deemed
an original, but all of which together will constitute one and the same instrument. A signature received
via facsimile or electronically via email shall be as legally binding for all purposes as an original
signature.
14. It is understood that by execution of this Agreement,the City does not waive or surrender
any of its governmental powers or immunities.
SIGNATURE PAGE FOLLOWS
Settlement Agreement and Release 3 of 5
IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective on the
date subscribed by the City's duly designated Assistant City Manager.
CITY OF FORT WORTH WILLIAM J.SCHULTZ,INC.DBA
/ CIRCLE C CONSTRUCTION COMPANY
by:Dana Burghdoff(May 27,z 12:02 CD by: /gyp q
Dana Burghdoff Teresa Skelly
Assistant City Manager President
May 27,2020
Date: Date: 5-- G - ?o Z o
APPROVED AS TO FORM Recommend:
AND LEGALITY:
DSM(May 27,202010:10 CDT) by:Christopher arder(May 27,202010,04 CDT)
Douglas W Black Chris Harder,P.E.
Sr.Assistant City Attorney Director, Water Department
ATTESTED BY: O � ,
r'
Mary J.Kayser
City Secretary
M&C 20-0147
March 17,2020
f-t 6 1RA5: a0a0 -591 oaa
rIML RECUR'
Y SECRETARY
FIT. WORTHy'TX
Settlement Agreement and Release 4 of 5
MICI11iLE S LANKFOR
?r. o i Notary Public
STATE OF TG X'4 4n § �: ,�* STATE OF TGXAS
Notary ib#11769404
COUNTY OF T a e-e c.-y� § ►�Y Cornet.Exp,Omober 7,20�1
BEFORE ME, the undersigned authority, a Notary Public in and for the State of TiC.,trA,.S , on this
day personally appeared Teresa Skelly, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of William J. Schultz,IncAba
Circle C Construction Company, for the purpose and consideration therein expressed and in, the
capacity therein stated. {.�
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 4 day of 20 Zp
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Notary Public in and for
The State of Texas
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Settlement Agreement and Release 5 of 5
Contract Compliance Manager
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract,including
ensuring all performanc and reporting requirements.
/1--1
n 4
Signature
Tony Sholola
Name of Employee
Assistant Water Director
Title
ATTEST:
Mary J. Kayser
City Secretary
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX .
5/28/2020 M&C Review
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FORTTII
DATE: 3/17/2020 REFERENCE **M&C 20- LOG 12CIRCLECCLAIM_CLEARFORK_M210
NO.: 0147 NAME:
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT. Settlement of a Claim Filed by William J. Schultz, Inc. dba Circle C Construction
Company, in the Amount of$182,265.13, Concerning Clear Fork Drainage Basin M-210
Sewer Improvements, Part 4 Project(COUNCIL DISTRICTS 3 and 9)
RECOMMENDATION:
It is recommended that the City Council authorize settlement of a claim in lieu of litigation in the
amount of$182,265.13 for extra work filed performed by William J. Schultz, Inc. dba Circle C
Construction Company on Clear Fork Drainage Basin M-210 Sewer Improvements, Part 4 project
(CSC 45817, CPN C01022).
DISCUSSION:
In July 2014, William J. Schultz, Inc. dba Circle C Construction Company, ("Circle C")was awarded a
construction contract in the amount of$4,145,081.00 for Clear Fork Drainage Basin M-210 Sewer
Improvements, Part 4. The contract was amended by five change orders for a final contract amount
of$5,180,744.00. On January 15, 2020, Circle C filed a claim in the amount of$182,265.13 for
performance of authorized work under the contract but which exceeded the maximum amount
payable under state law. Texas Local Government Code Sec. 252.048 does not allow construction
contracts to be increased by more than 25\% of the original contract amount.
City staff has reviewed the claim, finds it valid and recommends payment of the amount as a
settlement of Circle C's claim in lieu of litigation.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available in the current capital budget, as
appropriated, of the Sewer Capital Legacy Fund Clear Fork Drainage Basin M-210 Sewer
Improvements, Part 4 project. Prior to an expenditure being incurred, the Water Department has the
responsibility of verifying the availability of funds.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfield 2
FROM
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfield 2
Submitted for City Manager's Office by_ Dana Burghdoff(8018)
Originating Department Head: Sarah Fullenwider(7606)
Additional Information Contact: Doug Black (7615)
apps.cfwnet.org/council_packet/mc_review.asp?ID=27716&councildate=3/17/2020 1/2