Loading...
HomeMy WebLinkAboutContract 43721TUY SE�SThP nwr ,.A.retr mov COMPROMISE SETTLEMENT AGREEMENT Is Parties 1.1 This Compromise Settlement Agreement (the "Agreement") is entered into by and between The City of Fort Worth, Texas, (herein referred to herein as "Fort Worth"), and Burnsco Construction, Inc. (herein referred to as "Burnsco) (sometimes Fort Worth and Burnsco are collectively referred to as the "Parties"), for the mutual consideration and purposes herein expressed. This Agreement is made by each of the Parties and, if applicable, their successors, assigns, shareholders, directors, and officers. H. Statement Of Dispute 2.1 The term "Disputed Projects" as used in this agreement refers to, and means, those construction projects constructed in, or for, Fort Worth and for which Burnsco has provided labor or materials for the construction of improvements, excepting any current or future projects for which Burnsco has . been awarded work either as a prime contractor or subcontractor, any projects where any applicable maintenance bond still applies, and those projects subject to litigation and/or settlement in Cause No. 96-232719-08, City of Fort Worth v. Crawford Farms Investors, et al.1 ("Crawford Farms Litigation") and any related settlement of Crawford Farms Phase 4. 2.2 Fort Worth notified Burnsco that it believed there were defects in work Burnsco performed on several of the Disputed Projects. The Parties have conducted a mutual 1 City of Fort Worth v. Crawford Farms Investors, Ltd., Crawford Partners No. 1, Ltd., Crawford Farms Partners No. 2, Ltd., Hanover Services Group, Inc., Crawford -GP Partners,.LL-1., Glenn Thurman, Inc., and Compromise Settlement Agreement Premature Failed Streets 155 Panels — CFW-Burnscoj ot-CV q1J--(-C-,Wir T(11 to c11 'ii7 lWiIEA,,, 1 i inspection of all the Disputed Projects and have decided to compromise and settle all matters and issues regarding the Disputed Projects 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 of the Parties. III. Consideration 3.1 All matters relating to the Disputed Projects are compromised and settled between the Parties to this Agreement in consideration of the mutual releases, promises and agreements herein expressed. 3.2 Burnsco agrees to perform work and provide materials to remove and replace a total of One Hundred Fifty Five (155) concrete panels originally constructed as part of seven (7) different construction projects (or phases) in the Disputed Projects area, as shown on Exhibit A. The terms and conditions related to this removal and replacement are set out below, and unless unreasonably delayed by Fort Worth, must be concluded within two (2) years from Fort Worth's execution of this Agreement. Fort Worth and Burnsco agree that before any work is performed by Burnsco pursuant to this Agreement, Burnsco will provide a schedule and Fort Worth will visibly mark the specific panels to be removed and replaced by Burnsco, in accordance with the information provided in Exhibit A under the Burnsco Work Order Number One and Burnsco Work Order Number Two. 3.3 Burnsco agrees to provide the labor and materials, and perform the work pursuant to the specifications developed by Fort Worth (attached hereto as Exhibit "B") for Burnsco Construction, Inc. Compromise Settlement Agreement Premature Failed Streets 155 Panels -- CFW-Burnsco, Inc. 2 replacement of the identified panels; provided however, that for the work and materials provided by this Agreement: (i) there is no MWBE (or BDE) participation requirements or reporting; (ii) the street cutting permit will be waived (although Burnsco agrees to adhere to the standard city traffic control drawings); (in) the pavement repair is to be constructed as described on Exhibit B; and (iv) Burnsco will give Fort Worth the standard notice of construction procedures for affected areas. 3.4 Fort Worth shall be entitled to have an inspector on site when the removal and replacement work is being performed. Fort Worth is further entitled to conduct such testing that Fort Worth determines is necessary to confirm the quality of the removal and replacement work performed by Burnsco pursuant to this Agreement. Fort Worth shall be responsible to paying for any and all tests it conducts, save and except, if any such tests fail to meet specified construction standards, then Burnsco shall be responsible for retesting costs. 3.6 Burnsco shall notify Fort Worth, in writing, that the removal and replacement for a specified project named in Exhibit A, and outlined in Section 3.2, above, has been completed. Within 30 days from the date of such notice, Fort Worth shall perform any inspection or testing procedures it deems necessary to ensure the work was completed pursuant to the plans and specifications, and to provide a detailed list of any deficiencies to Burnsco. If Burnsco does not receive Fort Worth's wntten notice detailing the deficiencies within this 30 day period, then Fort Worth shall be deemed to have accepted Burnsco's performance of the consideration stated herein, in full satisfaction of the claims of Fort Compromise Settlement Agreement 3 Premature Failed Streets 155 Panels -- CFW-Burnsco, Inc. Worth on the stated project for which Fort Worth received notice of completion. Burnsco shall warrant the materials and workmanship of the replaced panels for a period of one year. 3.7 Notwithstanding anything to the contrary herein, neither this Agreement nor the litigation commenced by Fort Worth related to Crawford Farms will provide a basis for Burnsco being disqualified as a responsive bidder on future Fort Worth projects, to include on jobs Contract 2005 WSM-L DOE No. 5882 and Contract 2009 WSM-E DOE No. 6498. Notwithstanding anything to the contrary herein, Crawford Farms Phases 2 & 4 are specifically excluded from the terms of this Agreement. IV. General and Mutual Release 4.1 In consideration of the good and valuable consideration recited hereinabove, the sufficiency of which is hereby acknowledged and confessed, each of the Parties hereby releases, remises, and forever discharges the other Party, their officers, directors, shareholders, employees, agents, insurers, indemnitors and indemnities, successors and assigns, from any and all claims, demands, actions, and causes of action of whatever kind or character known, unknown, accrued or unaccrued, arising or to arise out of and/or connected with the Disputed Projects, EXCEPT (i) any claim, cause of action, damages and/or expenses which may arise from the breach of this Agreement; or (ii) any claim, cause of action, damages, or expenses which may arise from the Crawford Farms Phase 2 and Phase 4 litigation. V. General Provisions Compromise Settlement Agreement Premature Failed Streets 155 Panels -- CFW-Burnsco, Inc. 5.1 Assignment. The Parties represent and warrant to each other that they have not, and will not, sell, assign, convey, or otherwise transfer any interest in any claims, rights, causes of action, obligations, or other liabilities or obligations which are the subject of this Agreement, except to a direct successor entity of a Party, and that they have the sole right and exclusive authority to execute this Agreement and release the matters as set forth herein. 5.2 No Third -Party Beneficiary. This Agreement has been executed for the sole benefit of the Parties hereto and is not intended for the benefit of any third -party, except to the extent a release is explicitly granted to the third party. No other party shall have any rights hereunder, nor shall they be entitled to assume that the Parties hereto will insist upon strict performance of the mutual obhgations arising under this Agreement for the benefit of such other parties or otherwise. The Parties to this Agreement further agree that they will not institute, maintain, assist in, or otherwise encourage any suit, action, or other proceeding at law, in equity, or otherwise against the other party nor aid any third -party in any way in such proceedings. 5.3 Disclaimer of Liability. The Parties disclaim any liability to each other and it is expressly understood and agreed that the terms of this Agreement are contractual and not mere recitals, and that the covenants contained herein and the consideration transferred herein are to compromise doubtful and disputed claims, avoid litigation, and buy peace, and that no payments made nor any releases or other consideration given shall be construed as an admission of liability or wrongdoing by any party to this Agreement, all such liability being expressly denied. Compromise Settlement Agreement 5 Premature Failed Streets 155 Panels — CFW-Burnsco, Inc. 5.4 Attornev'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. 5.5 Amendments. This Agreement may be amended, revised, waived, discharged, released, or terminated only by written instrument executed by all Parties hereto. 5.6 No Waiver. No failure to exercise or delay in exercising any right hereunder on the part of either party shall operate as a waiver thereof, nor shall any single or partial exercise of any right of a party hereunder preclude any other or further exercise of such right or the exercise of any other right or rights. The rights of the Parties hereunder shall be in addition to all other rights provided to the Parties at law and/or in equity. 5.7 Successors and Assigns. All the terms of this Agreement shall apply to and shall be binding upon and inure to the benefit of the Parties hereto, their respective successors, assigns, heirs, directors, officers, partners, agents, servants, employees, insurers, parent companies, subsidianes, and/or legal representatives and/or all persons claiming by, through or under such parties, as may be permitted herein. 5.8 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. 5.9 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 Compromise Settlement Agreement Premature Failed Streets 155 Panels — CFW-Burnsco, Inc, this Agreement shall be construed as if such invalid and/or unenforceable provision had never been contained herein. 5.10 Leaal Counsel. The Parties hereto acknowledge that (i) they have consulted with legal counsel regarding the contents of this Agreement; (ii) that they have carefully read this Agreement and reviewed the same with their legal counsel; (iii) they understand the terms and legal consequences of this Agreement; and (iv) they acknowledge their acceptance of the terms of this Agreement by their signatures affixed hereto. 5.11 Representations. The statements and representations contained in this Agreement are considered contractual in nature and not mere recitals. 5.12 Acknowledgment of Entire Agreement. The Parties do each expressly represent and warrant that (1) they have entered into this Compromise Settlement Agreement of their own free will and accord, and in accordance with their own judgment; (2) that they have not been induced to enter into this Compromise Settlement Agreement by, nor relied upon, 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 (3) that this Agreement represents the entire agreement between the Parties and that all prior agreements respecting the subject matter hereof have been incorporated in the terms of this Agreement and are no longer of any force or effect. 5.13 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 give and to effect the basic terms and intent of this Agreement. Compromise Settlement Agreement 7 Premature Failed Streets 155 Panels — CFW-Burnsco, Inc. 5.14 Effective Date. The effective date of this Agreement shall be the date appearing opposite the signature of the last party signing this Agreement. BURNSCO CONSTRUCTION, INC.: CITY OF FORT WORTH TEXAS: DATED: — Co eft. I Z M&c G 6gt Date q - 2 s - I t_ �L ifriete•••4 Fernando Costa, Assistant City Manager DATED: /0/8/2 R� r ended By: Dougla 'j . Wiersig Director, Transportation/Publi Works A ; I ro e�; s to Form and Legality: -tr Douglas W. Black Assistant City Attorney ATTEST: Mary`f Kay City Secretary Compromise Settlement Agreement Premature Failed Streets 155 Panels — CFW-Burnsco, Inc. Ptt 40O404 a000a°`" reX4Se "� oY'tl� cORD env SECRETARY FT. WORTH, TX- THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned Notary Public, on this day personally appeared Fernando Costa, a representative authorized by the City of Fort Worth, Texas to executed this Agreement, known to me to be the person whose name is subscribed to the above and foregoing instrument, and acknowledged to me that s/he has executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this Ock-Ohrift 2012. UND/+M.Hiram IG MY COMMISSION EXf IUES F6lvary 2, 2014 STATE OF TEXAS § COUNTY OF TARRANT § day of Nth'ARY PUBLIC, STATE OF TEXAS BEFORE ME, the undersigned Notary Public, on this day personally appeared John Burns, President of Burnsco Construction, Inc., known to me to be the person and officer whose name is subscribed to the above and foregoing instrument, and acknowledged to me that the same was the act of the said Burnsco Construction, Inc., and that s/he has executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this LsYn day of S'e‘44ab ex-- 2012. ras MARY F PANNELL My Commission Expires October 19, 2014 111 NOTARY PIIRLIC, STATE OF TEXAS Compromise Settlement Agreement Premature Failed Streets 155 Panels — CFW-Burnsco, Inc. 9 EXHIBITS LIST Compromise Settlement Agreement 10 Premature Failed Streets 155 Panels — CFW-Burnsco, Inc. F_BLK T_BLK 12800 12813 12814 12825 12920 12939 12824 12899 12900 12923 12924 12943 11900 11949 12200 12249 F BLK T_BLK 3586 3929 3600 3699 3700 3749 3750 3799 9000 9099 9000 9099 4036 4299 9100 9109 13916 13999 14000 14009 9100 9117 5500 5599 Street CEDAR HOLLOW DR CEDAR HOLLOW DR CEDAR HOLLOW DR PRICKLYBRANCH DR PRICKLYBRANCH DR PRICKLYBRANCH DR TIMBERLAND BLVD TIMBERLAND BLVD • Street COUNTRY LN DIAMOND RANCH RD DIAMOND RANCH RD DIAMOND RANCH RD FOX MEADOW WAY GARDEN SPRINGS DR GOLDEN HORN LN HEDGEROW DR LOST SPURS RD LOST SPURS RD RIDING STABLE LN SHIVER RD EXHIBIT "A" BURNSCO - Premature Failure Replacement Agreement (DRAFT) 5-30-2012 BURNSCO WORK ORDER NUMBER ONE FromStreet PANGOLIN DR 12814 CEDAR HOLLOW DR WILLOW ROCK LN MARTINGALE VIEW LN HOUNDS TAIL LN WILLOW ROCK LN LYNX LN HOLLOW VALLEY DR FromStreet FOX MEADOW WAY LOST SPURS RD FONTANA RD MOUNTAIN RANCH RD THOROUGHBRED TRL THOROUGHBRED TRL GARDEN SPRINGS DR COUNTRY LN MOUNTAIN RANCH RD DIAMOND RANCH RD COUNTRY LN 5500 SHIVER RD ToStreet 12813 CEDAR HOLLOW DR MARTINGALE VIEW LN LACEBARK LN HOUNDS TAIL LN WILLOW ROCK LN LACEBARK LN MOUNTAIN LION DR LEAFLET DR Panels 3 1 5 20 24 14 7 9 SqYds 58 20 97 387 464 271 224 172 AddltionPhase TIMBERLAND BLVD PH 1 B TIMBERLAND BLVD PH 1A TIMBERLAND BLVD PH 1A TIMBERLAND BLVD PH 1A TIMBERLAND BLVD PH 1A TIMBERLAND BLVD PH 1A WOODLAND SPRINGS WEST TIMERLAND PH 1 " 1 DOE_# 4920 4559 4559 4559 1 4559 4559 3574 WOODLAND SPRINGS WEST TIMERLAND PH 1 " 13574 WEST TIMERLAND PH 1 83 1 1693 BURNSCO INSTALLED STORM DRAIN FOR WOODLAND SPRINGS WEST TIMERLAND PH 1 r- .,..,. }..r i. S :4•r. ..1, Y=:r:..P... r.. ....4 i,.er..v._�3.,-_,.a..—,.,r ,. B'IRNSCO WORK ORDER NUMBER TWO ToStreet HEDGEROW DR FONTANA RD MOUNTAIN RANCH RD LAN RIVER RANCH RD COUNTRY LN COUNTRY LN TROY DR 9109 HEDGEROW DR DIAMOND RANCH RD LOST SPURS RD FOXHOUND LN SCOTTS VALLEY ST TOTAL - WK ORDER 1 & 21 Panels SqYds 4 47 6 116 6 116 10 145 4 47 18 171 2 32 5 81 4 74 4 81 2 18 7 113 72 1041 155 2734 AdditionPhase POYNTER CROSSING PH 1 LOST CREEK RANCH NORTH PH 3 LOST CREEK RANCH NORTH PH 3 LOST CREEK RANCH NORTH PH 3 POYNTER CROSSING PH 1 POYNTER CROSSING PH 1 POYNTER CROSSING PH 1 POYNTER CROSSING PH 1 LOST CREEK RANCH NORTH PH 3 LOST CREEK RANCH NORTH PH 3 POYNTER CROSSING PH 1 VINEYARDS AT HERITAGE PH 2 PMF Burnsco Agreement_EXHIBIT A 5-30-2012 DRAFT.xIs 1 5/30/2012 DOE # 3512 3919 3919 3919 3512 3512 3512 3512 3919 3919 3512 3202 MIM Timberland Blvd NOT TO SCALA Exhibit "A"_Burnsco Work Order # 1 CELLER?HASL',ET_ Prickiybranch Dr r• . y sty 0 0 1..„,r.Se'' 4� j� r ' '. W t ' 11MBERLAND ,:FURLONG :;'.4 m� ;•.,.,; ..mDAISY' LEAF; 6001: • _a= %i •r• '7 • LACE $, A 'Y,-. 'r..,v.. O,...v. _. ., HUNDS VTA' .,.,• ELLOW-BIRCH REOtUM, ro KeElRrI-i #iditT Copyrlt/t12012 City of rod Worth. Unauthorized reporduolon Ise violation of apple; able lows. This product is for informational purposes end may not have been prepared for re be suitable for legal, engineering, or surveying purposes. It does not represent an on-th-ground survey and represents only the approximate retalva location of property boundaries. Meetly of Fort Worth assumes no responsibility for the acwricy of said data. . GRAY F.P "Ir4I. ':..:: GOLDENI Exhibit "A" Burnsco Work Order # 2 w Golden Horn Ln Fox Meadow Way Copyd Olt 2012 City of Fad Worth. Uneulhodzed repordtslon Is a vloladon of applicable laws. This pmduct is tor Iltornatlonal purposes and may net have been pmpered for or be suitable for legat enginening, or surveying purposes. 1 does not represent an on•1Mground survey and represents any the appromnab Salve location of pmpedy boundaries. The Cdy effort Worth assumes no responslbi ty for the aceuney at said data. HOT ID :CALA Exhibit B Technical Specs for Replacement of Concrete Street Panels The scope of work shall include the removal of existing concrete pavement and the reconstruction of a minimum six (6) inches reinforced concrete pavement, #3 steel on 18 inch centers using 3H Chairs to elevate. over eight (8) inches of' well graded flex -base (TxDOT, Type A, Grade 2) over geo-grid (TensarTriAx TX140-475). This repair procedure shall be used where utility trenches (including service Imes) exist beneath the area to be replaced. The geo-grid and flex -base shall be installed within the full limit of the replacement area. The surface below the geo-grid and flex -base must be compacted to 95%. If space permits, compacted area shall be_proof rolled. Existing voids and unsuitable material below the pavement shall be corrected as directed by the City. M&C Review Page 1 of 2 DATE: Official site of the City of Fort Worth, Texas FORT WORT I COUNCIL ACTION: Approved on 9/25/2012 9/25/2012 REFERENCE NO.: **G-17682 CODE: G TYPE: SUBJECT: LOG NAME: PUBLIC HEARING: Approve Settlement of Claims in City of Fort Worth v. Crawford Farms Investors, Ltd., et al., and Settlement of Other Claims with Burnsco Construction, Inc. Regarding Prematurely Failed Streets (COUNCIL DISTRICTS 2 and 6) CONSENT 12SETTLE BURNSCO NO RECOMMENDATION: It is recommended that the City Council approve settlement of claims in City of Fort Worth v. Crawford Farms Investors, Ltd., et al. and settlement of other claims with Burnsco Construction, Inc. regarding prematurely failed streets in north Fort Worth. DISCUSSION: In 2008, the City Council authorized a lawsuit against Burnsco Construction, Inc. (Burnsco) over various street failures allegedly caused, at least in part, by Burnsco. This case was styled as cause number 96-232719-08, City of Fort Worth v. Crawford Farms Investors, Ltd., Glenn Thurman, Inc., L.H. Lacy Company Ltd., and Burnsco Construction, Inc. (Crawford Farms Litigation). Earlier this year, the parties agreed to mediate the case. The result of the mediation was that Burnsco and Crawford Farms Investors, Ltd. agreed to pay the City $300 000.00, which payment was received in June 2012. Staff was previously authorized to negotiate a settlement in the Crawford Farms Litigation by the City Council. In late 2011, Burnsco, bidding on city infrastructure projects, was the apparent low bidder for two Water Department projects. Staff recommended denial of the award of the contracts citing the ongoing Crawford Farms Litigation. During subsequent discussions with Burnsco regarding this recommendation, Burnsco s representative offered to repair various other streets constructed by Burnsco which had also allegedly failed prematurely and were not part of the Crawford Farms Litigation (Other Failed Streets). Staff and Burnsco representatives agreed that Burnsco will repair 55 street panels equal to approximately 0.36 lane miles on 12 streets at Burnsco's expense, estimated at $173 000.00. Acting in good faith, staff subsequently recommended award of the two Water Department contracts to Burnsco, both of which projects are underway. It is anticipated that Burnsco will begin making repairs to the Other Failed Streets on or before October 25, 2012. Approval of these two settlement agreements will settle all claims the City has against Burnsco for prematurely failed streets constructed by Burnsco between June 2002 and October 2008 and will hasten repairs to the identified streets. This project is located in COUNCIL DISTRICTS 2 and 6. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that approval of the above recommendations will have no material impact on City funds. http://apps.cfwnet.org/council_packet/mc_review.asp?ID=17428&councildate=9/25/2012 10/8/2012 M&C Review Page 2 of 2 TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for Citv Manaaer's Office bv: Fernando Costa (6122) Oriainatina Department Head: Sarah Fullenwider (8006) Additional Information Contact: Doug Black (7615) ATTACHMENTS http://apps.cfwnet.org/council_packet/mc_review.asp7ID 17428&councildate=9/25/2012 10/8/2012