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HomeMy WebLinkAboutContract 41870 (2)CITY SECRETARY � l � � �- G�NTRACT NO. SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release ("Settlement Agreement") is entered into and effective as of May ) ),, 2011 by and between The City of Fort Worth (hereinafter the "City") and Safco Construction, Inc. ("Safco"). At times herein, the City and Safco will collectively be referred to as the "Parties." RECITALS V►IHEREASI on April 6, 2010, the City and Safco entered into Sanitary Sewer Rehabilitation Contract LIX (59)—Part2 (M&C C-24156), for sewer rehabilitation to the following locations within the City of Fort Worth: Location No. 1 - Kingswood Drive and Alta Mesa Blvd; Location No. 2 - Alley East of Haskell Street between 5`h Street and 6th Street; Location No. 3 - Heirloom Drive and Trimble Drive, Location No. 4 - Kaywood Street and Howard Street; Location No. 5 - Alley between Pershing Ave. and Birchman Street from Hulen Street to Thomas Place; and Location No. 6 - Alley South of Berry Street between Grove Street and I.H.35W (the "Contract"). 1�fIiEREAS, on April 22, 2011, Safco completed and the City approved completion of the following: Location No. 1 — Kingswood Drive and Alta Mesa Blvd; Location No. 3 - Heirloom Drive and Trimble Drive, and Location No. 6 - Alley South of Berry Street between Grove Street and I.H.35W (the "Completed Locations"), leaving the following under the Contract uncompleted: Location No. 2 - Alley East of Haskell Street between 5th Street and 6ch Street; Location No. 4 - Kaywood Street and Howard Street; and Location No. 5 -Alley between Pershing Ave. and Birchman Street from Hulen Street to Thomas Place (the "Uncompleted Locations") both as shown on Attachment "A" attached hereto and made a part herein. !�I-IEREAS, during performance of the Completed Locations, a dispute arose between the Parties over payment for alleged unforeseen labor and materials provided by Safco (the "Dispute). WHEREFORE, to avoid the cost, uncertainty, and inconvenience of potential litigation, and to buy peace, the Parties have agreed to resolve the Dispute pursuant to the terms of this Settlement Agreement. AGREEMENT In consideration of the mutual agreements and releases set forth in this Settlement Agreement, which are acknowledged to be sufficient, the Parties agree to the following: 1. Terms 1.1 City: A. The City will issue a change order to provide payment to Safco for the 45 degree fittings field adjustment in an amount of $19,200.00. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX B. The City agrees to pay Safco $11,800.00 for miscellaneous adjustments related to the Completed Locations and termination of the Contract. C. The City agrees to release Safco from its performance on the Uncompleted Work and terminate the remainder of the Contract. The City will process finalization of the Completed Work through its regular project close-out schedules, including payment of retainage earned by Safco and outstanding Pay estimates for work performed by Safco through April 15, 2011. City agrees not to pursue a claim against Safco's Performance Bond No. B 0341872, issued by The Cincinnati Insurance Company on April 6, 2010, for the Uncompleted Work. City agrees that insofar as Maintenance Bond claims may arise, City will seek recovery from Safco's Surety only for the Completed Work. 1.2 Safco: A. Safco agrees to complete any outstanding work, if any, on the Completed P rojects as identified by City on or before May 31, 2011. S afco agrees to not cancel or in any way alter the terms of the Maintenance Bond No. B 0341873 issued by The Cincinnati Insurance Company on April 6, 2010 in favor of the City, instead allowing it to run its natural course. C. Safco agrees to not cancel or in any way alter the terms of the Payment Bond N o. B 0341872 issued by The Cincinnati Insurance Company on April 6, 2010 in favor of the City, instead allowing it to run its natural course. 2. Mutual Releases 2.1 Safco's Release of the City U PON PAYMENT OF THE SETTLEMENT FUNDS SAFCO ITS PREDECESSORS, S UCCESSORS, ASSIGNS, PARTNERS, AGENTS, AND ALL PERSONS, NATURAL OR CORPORATE, AGREE TO FULLY RELEASE AND FOREVER DISCHARGE WITH P REJUDICE, THE CITY ITS PARTNERS, AGENTS, EMPLOYEES, DIRECTORS, S HAREHOLDERS, OFFICERS, AND ATTORNEYS FROM ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, APPEALS, SUITS, RIGHTS, OBLIGATIONS, DAMAGES, LOSSES, CHARGES, DEBTS, LIABILITIES, AND DEMANDS WHATSOEVER WHETHER FORESEEN O R UNFORESEEN, KNOWN OR UNKNOWN, DISCLOSED OR UNDISCLOSED, MATURED 2 OR UNMATURED, IN LAW, EQUITY OR OTHERWISE, WHICH SAFCO HAS OR HAD, THAT RELATE IN ANY WAY TO THE DISPUTE, EXCEPT FOR THE OBLIGATIONS IMPOSED BY THIS AGREEMENT. 2.2 The City's Release of Safco U PON ACCEPTANCE OF THE SETTLEMENT FUNDS BY SAFCO, THE CITY, ITS P REDECESSORS, SUCCESSORS, ASSIGNS, PARTNERS, AGENTS, AND ALL PERSONS, NATURAL OR CORPORATE, AGREE TO FULLY RELEASE AND FOREVER DISCHARGE, WITH PREJUDICE, SAFCO ITS PARTNERS, AGENTS, EMPLOYEES, DIRECTORS, S HAREHOLDERS, OFFICERS, AND ATTORNEYS FROM ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, APPEALS, SUITS, RIGHTS, OBLIGATIONS, DAMAGES, LOSSES, CHARGES, DEBTS, LIABILITIES, AND DEMANDS WHATSOEVER WHETHER FORESEEN O R UNFORESEEN, KNOWN OR UNKNOWN, DISCLOSED OR UNDISCLOSED, MATURED O R UNMATURED, IN LAW, EQUITY OR OTHERWISE, WHICH THE CITY HAS OR HAD, THAT RELATE IN ANY WAY TO THE DISPUTE, EXCEPT FOR THE OBLIGATIONS IMPOSED BY THIS AGREEMENT. 3. Authority and Requisite Approvals The Parties represent and warrant that: (1) they have read and fully understand this Settlement Agreement, (2) all approvals necessary to authorize them, if any to enter into this Settlement Agreement have been obtained, (3) they are duly authorized to fully and completely resolve all disputes between the Parties that are the subject matter of this Settlement Agreement, (4) they agree to be bound to the terms and conditions contained in this Settlement Agreement, and (5) this Settlement Agreement is their binding and enforceable obligation 4. Best Efforts and Good Faith The Parties hereby agree to use their best efforts and good faith in carrying out all the terms of this Settlement Agreement 5. Counterparts This Settlement Agreement may be signed in any number of counterparts or copies or on separate signature pages or by electronic transmission, which when taken together shall be deemed to be an original for all purposes. 6. No Duty None of the Parties are relying upon a legal duty, even if one might exist, on the part of any other Party (or such other Parties' employees, agents, representatives, or attorneys) to disclose any information in connection with the execution of this Settlement Agreement or its preparation; it is expressly understood and agreed that no lack of information on the part of another Party is a ground for challenging this Settlement Agreement. 3 7.1. Each Party Relying on Own Judgment It is understood and agreed that the Parties hereto have carefully reviewed this Settlement Agreement, that they fully understand its terms, that they sought and obtained independent legal advice with respect to the negotiation and preparation of this Settlement Agreement that this Settlement Agreement has been negotiated and prepared by the joint efforts of the respective attorneys for each of the Parties and that the Parties have relied wholly upon their own judgment and knowledge, and the advice of their respective attorneys. 7.2. No Reliance on Representations or Assumed Facts THE PARTIES ALSO ACKNOWLEDGE THE CONTESTED AND ADVERSARIAL NATURE OF THE DISPUTE AND STIPULATE THAT IN EXECUTING THIS SETTLEMENT AGREEMENT THEY ARE NOT RELYING ON ANY REPRESENTATION BY ANY OTHER PARTY OR ITS AGENTS, REPRESENTATIVES, OR ATTORNEYS WITH REGARD TO (1) FACTS U NDERLYING THE DISPUTE, (2) THE SUBJECT MATTER OR EFFECT OF THIS S ETTLEMENT AGREEMENT, AND (3) ANY OTHER FACTS OR ISSUES WHICH MIGHT BE DEEMED MATERIAL TO THIS DECISION TO ENTER INTO THIS SETTLEMENT AGREEMENT, OTHER THAN AS SPECIFICALLY SET FORTH IN THIS SETTLEMENT AG REEMENT. 8. Section Numbers and Heading S ection numbers and section titles have been set forth herein for convenience only, and they shall not be construed to limit or extend the meaning or interpretation of any part of this S ettlement Agreement. 9. Governing Law This Settlement Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of Texas without regard to its conflict of law principles. 10. Forum Selection and Mandatory Venue The Parties acknowledge and agree that any and all disputes arising from or related to this Agreement, or the obligations contained herein, shall be brought in Tarrant County, Texas 11. Prior Agreements Superseded This Settlement Agreement supersedes all prior agreements, written or oral, between the parties and referenced in the Recitals of this Settlement Agreement. It is understood and agreed that all future rights and obligations of the Parties as to each other shall be governed solely by this Settlement Agreement 12. Invalidity 4 If any term or provision of this Settlement Agreement shall be determined to be unenforceable or invalid or illegal in any respect, the unenforceability, invalidity, or illegality shall not affect any other term or provision of this Settlement Agreement, but this Settlement Agreement shall be construed as if such unenforceable, invalid, or illegal term or provision had never been contained herein. 13. No Oral Modifications This Settlement Agreement may not be modified, amended, or terminated orally. No modification, amendment, or termination, or any waiver of any of the provisions of this Settlement Agreement, shall be binding unless same is in writing and signed by the person against whom such modification, amendment, or waiver is sought to be enforced. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] AGREED AND ACCEPTED: SAFCO CONSTRUCTION, INC. STATE OF M4ahO § § COUNTY OF 1<a7 Before me, a Notary Public, on this date personally appeared Kevin Stevens, known to be the person whose name is subscribed on the foregoing instrument and acknowledged to me the same was the act of Kevin Stevens and that he executed the same on behalf of Safco Construction, Inc., for the purpose of consideration therein expressed in the capacity stated therein. Given my hand and seal of office this � 'Z— day of �'(.� , 2011. ary Public, State of s AGREED AND ACCEPTED: THE CITY OF FORT WORTH Fernando Costa Assistant City Manager STATE OF TEXAS § COUNTY OF TARRANT § Before me, a Notary Public, on this date personally appeared � known to be the person whose namt-e_ is subsc ibed on the foregoing instrument and acknowledged to me the same was the act of rPI'(�f1(]D5ia. and that he executed the same on behalf of The City of Fort Worth for the purpose of consideration therein expressed in the capacity stated therein. Given my hand and seal of office this day of , 2011. EVONIADANIELS elotary Public, State of Texas MY COMMISSION EXPIRES July 10, 7013 6 OFFICIAL RECORD CITY SECRETARY FT, NORTH, 'r Recommended: Frank Crumb Director, Water Department Approved as to Form and Legality: Douglas W. Black Assistant City Attorney Marty Hendrix City Secretary Date: May , 2011 No M&C Required — Authorized by contract executed per M&C C-24156 approved 4-06-10 ��FICIAL RECORD 0 a SECRETARY WORTH, TX