HomeMy WebLinkAboutContract 57489 CSC No.57489
SETTLEMENT AGREEMENT AND RELEASE OF CLAIM
THIS SETTLEMENT AGREEMENT is made and entered into this 27 day of
April 2022 by, among, and between Freese and Nichols, Inc. ("FNI") and the City of
Fort Worth("City" or"Owner")regarding a dispute on the Project identified below for all change
orders and claims encountered or issued during the course of construction("Dispute"). The parties
to this Settlement Agreement are hereinafter referred to individually as a"Party" or collectively as
the"Parties."
The "Project" as identified in this agreement is defined as the Trinity River Vision Bridge
Project,including but not limited to the three bridges at White Settlement Rd.,Henderson St. (S.H.
199)and North Main St. (BU 287P),which are a subcomponent of the Trinity River Vision Project
established in collaboration by The Trinity River Vision Authority, Tarrant Regional Water
District, City of Fort Worth, Tarrant County, Streams & Valleys, Inc, and U.S. Army Corps of
Engineers, more specifically identified as CSJ # 0171-05-081, 0014-01-022 and 0902-48-697;
District#02-FTW; Code Chart 64 #15000; Federal Highway Administration CFDA#20.205.
WITNESSETH
WHEREAS the Parties to this Settlement Agreement are FNI and the Owner in connection
with the design and construction of the Project; and
WHEREAS the City and FNI entered into that certain engineering and design agreement,
City Secretary Contract No. 39644, in December, 2011, for engineering and design services for
the Project. The agreement was amended two times; and
WHEREAS the Texas Department of Transportation ("TXDOT") had the responsibility
to let the Project and contracted with Texas Sterling Construction Co. ("Texas Sterling") to
construct the bridges. TXDOT and Texas Sterling are referred to herein as the "Construction
Parties".
WHEREAS during construction of the Project, disputes arose among and between the
Construction Parties regarding, inter alia, alleged construction and design defects related to the
Proj ect; and
WHEREAS agreement to buy the peace and prevent unnecessary litigation has been
reached, among, and between the Parties, and it was the agreement of the Parties, that settlement
would be facilitated by having each Party focus on its own interests in the dispute; and the Parties
desire to document the terms and conditions of such settlement,
NOW, THEREFORE, for and in consideration of One Dollar ($1.00) cash in hand by
each of the Parties to the other, the mutual releases and agreements contained herein, the promises
of payment herein provided, and other good and valuable consideration,the receipt and sufficiency
of which are hereby acknowledged and confessed, the Parties hereto have agreed, and do hereby
agree, to the following:
1. Attached to each Party's copy of this Settlement Agreement is an exhibit that sets forth the
amount that Party agrees to pay ("Settlement Payment") as consideration for this release
hereinafter described and any special conditions applicable to that Party. The Parties
OFFICIAL RECORD
Panther Island Bridges—Settlement Agreement CITY SECRETARY Page 1 of 5
FT. WORTH, TX
understand that such individual amounts set forth on such Exhibit will not be disclosed by
the Parties, except as required by law or by order of a court of competent jurisdiction.
2. To facilitate the payment and distribution of settlement funds, all settlement payments shall
be made payable to the City of Fort Worth and directed to the City Manager, David Cooke.
3. Settlement Payments shall be due, in good funds, on or before thirty (30) days of the later
of receipt of final execution of this Settlement Agreement or receipt of a W-9 from any Party
scheduled to be paid(the "Payment Due Date").
4. Each Party acknowledges that the benefits it derives from this Settlement Agreement are
good and valuable consideration,irrespective of the value or benefit any other Party derives.
5. With the exception of the reserved rights and obligations set forth in the immediately
following Section (the "Reserved Rights"), all Parties fully, finally, and mutually release,
acquit, and forever discharge each other and each other's respective agents,
subcontractors/subconsultants, sub-subcontractors/sub-consultants, suppliers, engineers,
testing laboratories, employees, officers, partners, members, shareholders, parents,
affiliates, subsidiaries, principals, trustees, owners, directors, sureties, insurers, putative
additional insurers, excess or umbrella insurers, reinsurers, guarantors, lenders, successors,
attorneys and all other persons and entities in privity with any of them (collectively, the
"Releasees"), for all change orders and claims encountered or issued during the course of
construction, specifically including all claims presented by any parties through the TxDOT
Claims procedure,by any of the Parties or their consultants,including claims to any contract
or subcontract balances or retainage except as provided in the Exhibits, claims of
subrogation, provision of any defense or indemnity, claims related to the failure to properly
manage/maintain/repair in any way/shape/form the Project, any claims of related to the
design, construction, maintenance or repair of the Project, including any claims for breach
of contract, negligence, breach of warranty (express and implied), violations of Texas
Deceptive Trade Practices Act,violations of money had and received,breach of duty, claims
of unjust enrichment/implied contract, breach of fiduciary duty, claims for attorney's fees,
claims for diminished value, claims for diminished market value, claims for property
damage, claims for property damage brought in the Dispute or that could have been brought
in a lawsuit related to the Dispute,petitions in intervention,cross claims between and among
the parties, claims that property damage, loss of use, diminution in value, stigma, delay
damages, liquidated damages, consequential damages, attorneys' fees, contractual
indemnity, and all causes of action of any kind whether sounding in tort, intentional tort,
fraud, contract, or trespass, or arising by operation of law, code, regulation or statute, that
any Party has or had(whether in its own name or as assignee or successor for another).
6. The following Reserved Rights are not released hereby and shall survive the execution of
this Settlement Agreement:
a. the obligations specifically undertaken by any Party in this Settlement Agreement;
b. the reservation by any Party entitled to receive funds hereunder, of claims against
any Party failing to make payment as provided herein;
Panther Island Bridges—Settlement Agreement Page 2 of 5
7. Within seven (7) business days of the receipt of the Settlement Payment, the Parties agree
to dismiss with prejudice to their rights to re-file same, any claims, cross claims,
counterclaims, and third-party claims, except to the extent of any Reserved Rights asserted
herein, in any Lawsuit against the other Parties who have complied with the provisions of
this Settlement Agreement, if one has been filed. Each Party shall bear its own costs,
attorneys' fees, and experts' fees in the Dispute.
8. This Settlement Agreement is a compromise and settlement of disputed claims and is being
entered into solely to avoid the time, expense, uncertainty, and inconvenience of continued
dispute, discussion and litigation. Neither the execution of this Settlement Agreement nor
anything stated herein, nor any amount paid hereunder, is to be construed or deemed as an
admission of liability, culpability, or wrongdoing on the part of any Party to this Settlement
Agreement. The Parties agree not to disparage one another, it being recognized that there
has been no finding of fault or wrongdoing. Disparage shall mean making a written or verbal
communication that is actionable as defamation(libel or slander) under Texas law.
9. All Parties agree to execute such other and further documents and releases, consistent with
the terms of this Settlement Agreement, as may be reasonably required by any Party or its
insurance carriers, to evidence and effectuate the agreements reached herein.
10. Each of the Parties represents and warrants to the other Parties that it owns the claims it
releases herein and has not assigned or otherwise transferred any claim or cause of action or
rights relative thereto that it may possess or have possessed against another Party in this
Dispute to any person or entity not a Party to this Settlement Agreement. Each Party
expressly warrants and represents that they have no knowledge or notice, actual or
constructive, of anyone asserting claims, by, through or under that Party, including but not
limited to any subrogation claims. The signatories hereto warrant and represent that they
have the full power and authority to bind the Party entity for which they have signed,
including any necessary Board or other approvals.
11. This Settlement Agreement constitutes a single, integrated, written contract expressing the
entire understanding and agreement between the Parties on the subject matter hereof. The
terms of the Settlement Agreement are contractual and not merely recitals. There is no other
agreement, written or oral, expressed or implied, between the Parties with respect to the
subject matter of this Settlement Agreement. The Parties declare and represent that no
promise, inducement or other agreement not expressly contained in this Settlement
Agreement has been made by any other Party,or counsel for any other Party. THE PARTIES
FURTHER WARRANT AND REPRESENT THAT NONE OF THE PARTIES IS
RELYING UPON ANY STATEMENT OR REPRESENTATION OF ANY AGENT,
REPRESENTATIVE, OR ATTORNEY OF THE PARTIES BEING RELEASED
HEREBY. INSTEAD, EACH IS RELYING ON HIS OR HER OWN JUDGMENT with
regard to: (1) the fact of the underlying disputes; (2) the subject matter or effect of this
Agreement; and (3) any other facts or issues that might be deemed material to the decision
to enter into this Agreement, other than as specifically set forth in this Agreement.
Panther Island Bridges—Settlement Agreement Page 3 of 5
12. Each Party adopts this Settlement Agreement as the product of a group drafting effort by
counsel for all Parties, not to be construed more favorably for or against any Party to this
Settlement Agreement. Each Party has been represented by counsel.
13. Should any provision of this Settlement Agreement be held unenforceable for any reason it
will be deemed severed from the Settlement Agreement, the remainder of which will
continue to be in force in its entirety. Notwithstanding the foregoing, should such a severed
provision result in an agreement or a particular key provision that is determined to either be
unenforceable or vague or undefined, the Parties agree that the intent of this Settlement
Agreement, namely that this Settlement Agreement was intended to serve as a full and final
release of claims and settlement of disputed claims related to the above referenced cause of
action, shall be used and employed to result in a fully enforceable agreement that achieves
this same goal and result and that it is and shall remain the intent of the Parties such that no
such severability shall ever be used to cause this Settlement Agreement to be voided in its
entirety.
14. This Settlement Agreement shall be binding upon and inure to the benefit of the Parties, and
shall be binding on their respective affiliates, executors, administrators, personal
representatives, heirs, successors, and assigns of each. Neither this Settlement Agreement,
nor any of its recitals, terms or provisions, nor any of the negotiations or proceedings
connected with it, nor any other action taken to carry out this Settlement Agreement, shall
be offered as evidence in any pending or future claim or pending or future civil, criminal, or
administrative action or proceeding, except in a proceeding to enforce this Settlement
Agreement,or to defend against the assertion of the released claims,or as otherwise required
by law. This Settlement Agreement has been entered into in reliance upon federal and state
law provisions which provide for the inadmissibility of evidence regarding settlement and
mediation negotiations or agreements.
15. Texas law, without regard to any law that would apply the law of any other state, shall
govern the interpretation of this Settlement Agreement. Any disputes arising under this
Settlement Agreement shall be heard in Tarrant County, Texas.
16. This Settlement Agreement may be executed in multiple facsimile or electronic
counterparts, and with facsimile or electronic signatures, and all such counterparts shall
together be deemed to constitute one final agreement, as if each Party had signed one
document. Each such counterpart or an electronic or a facsimile copy thereof shall be
deemed to be an original, binding the Parties subscribed thereto, and multiple signature
pages or facsimile signature pages affixed by the Parties to a single copy of this Settlement
Agreement shall be deemed to be a fully executed original document.
17. If necessary, the Parties may use the information in the Settlement Agreement for use in
applications for insurance and for seeking bankruptcy court approval of the settlement. The
terms of this Settlement Agreement may be disclosed in connection with legal proceedings
seeking to enforce the terms of this Settlement Agreement, and/or to the Parties' tax,
accounting, financial, and legal professionals, insurers, reinsurers, and retrocessionaires.
Panther Island Bridges—Settlement Agreement Page 4 of 5
IN WITNESS WHEREOF,this Settlement Agreement has been executed by the Parties.
The City of Fort Worth.
B Dana BurandofF
yDana Burghd off pr27,202219:04 rnT)
Its Assistant City Manager
On Date: 04/27/22
Approved as to form:
W
DBlack(Apr 27,202216:24 CDT)
Counsel for the City of Fort Worth
Freese and Nichols,Inc.
By �9�
Its v I cE
On Date: /2o/2aZ2
Approved as to form:
Counsel r r Nichols, Inc.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Panther Island Bridges—Settlement Agreement Page 5 of 5
CONFIDENTIAL EXHIBIT
Freese and Nichols
Freese and Nichols, Inc. ("FNI") shall pay to the City of Fort Worth ("City" or "Owner")
in accordance with the process outlined in the fully executed Settlement Agreement an amount in
the sum of one-million five hundred thousand dollars ($1,500,000.00).
Freese and Nichols, Inc.
By
Its VICE- *4AF-Se bEW7
Approved as to form:
Couns r y Nid ols, Inc.
The City of Fort Worth.
B Dana garah�loFF
y Dana Durghdoff r4pr27,202219:04 CDT)
Its Assistant City Manager
Approved as to form:
OVA
Mack(A6r27,202216:24 CDT)
Counsel for the City of Fort Worth
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Panther Island Bridges—Confidential Exhibit
ADDITIONAL SIGNATURES
CITY OF FORT WORTH
AUTHORIZATION
M&C: 22-0254
Date Approved: 4/12/22
ATTEST AS TO CITY MANAGER SIGNATURE: p F°F�R '4 &
° °O d
BY: Jannette 5.Goodall(Apr 28,2J22 12 46 COT) v O O°
Jannette S. Goodall o o
City Secretary ��a °°°°°°°°°°°°° aAV
n�Z'rvexw
Email:Jannette.Goodall@fortworthtexas.gov
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
4/27/22,3:01 PM M&C Review
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FoRTWoRm
Create New From This M&C
DATE: 4/12/2022 REFERENCE**M&C 22- LOG 031NTERLOCAL AGREEMENT WITH
NO.: 0254 NAME: NCTCOG FOR TRV BRIDGE FUNDING
CODE: G TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: (CD 2 and CD 9) Authorize Execution of an Interlocal Agreement with the Regional
Transportation Council, the North Central Texas Council of Governments and the Tarrant
Regional Water District in the Amount of$5,000,000 with City Participation in the Amount
of$1,500,000 and Authorize a Settlement Agreement with Freese and Nichols, Inc. in the
Amount of$1,500,000 for Claims Associated with the Trinity River Central City Bridge
Project
RECOMMENDATION:
It is recommended that the City Council:
1. authorize execution of an Interlocal Agreement with the Regional Transportation Council, the
North Central Texas Council of Governments and the Tarrant Regional Water District in the
amount of $5,000,000.00 with City participation in the amount of $1,500,000.00 for the
Trinity River Central City Bridge project; and
2. authorize execution of a settlement agreement with Freese and Nichols, Inc. in the amount
of $1,500,000.00 for claims associated with the Trinity River Central City Bridge project.
DISCUSSION:
The Trinity River Central City Bridge project consists of the construction of three bridges over a future
bypass channel of the Trinity River north of downtown Fort Worth. The bridge construction is being
managed by the Texas Department of Transportation (TxDOT), with the City of Fort Worth as the
local sponsor. TxDOT contracted with Texas Sterling Construction Co. to construct the bridges.
During the course of construction, Texas Sterling raised questions concerning the constructability and
adequacy of the plans related to the bridge design. Delays ensued and litigation was threatened
ultimately leading to resolution of the dispute between the bridge contractor and TxDOT through the
execution of Change Order No. 74 in the amount of$14,999,772.23. To fund the cost increase as well
as future, projected increases, in March 2020, the Regional Transportation Council (RTC) approved
an increase of$20 million in Surface Transportation Block Grant (STBG) funds for the project, which
funds were programmed to TxDOT. The City agrees to reimburse $1,500,000 to the NCTCOG, as the
RTC's fiscal agent. In addition, Tarrant Regional Water District (TRWD) will reimburse $3,500,000 to
the RTC via NCTCOG over a 10-year period using Trinity River Vision Tax Increment Finance (TIF)
revenue.
The bridges were originally funded in 2011 with a total of$69.9 million in Federal, State, City and other
partner funding. Expenses related to the Bridge project are considered Central City project costs,
which are eligible for TIF reimbursement.
The City and Freese and Nichols, Inc. entered into an engineering design agreement, City Secretary
No. 39644, in December, 2009 for engineering and design services for the three bridges spanning the
future Trinity River bypass channel. The agreement was amended twice: in June, 2011 and again in
December, 2011. The second amendment added scope and fees for the design of the "V-pier" bridges.
Freese and Nichols has agreed to contribute $1,500,000.00 to the City to settle any claims related to
the engineering design agreement after good faith negotiations with City staff.
A Form 1295 has been provided by Freese and Nichols, Inc.
apps.cfwnet.org/council_packet/mc_review.asp?ID=29808&councildate=4/12/2022 1/2
4/27/22,3:01 PM M&C Review
FISCAL INFORMATION/CERTIFICATION:
Prior to any expenditure being incurred, the Transportation and Public Works Department has the
responsibility to validate the availability of funds. The Director of Finance further certifies that upon
approval of the above recommendation and execution of the agreements, funds will be deposited into
the Street Improvements 2008 Fund and then remitted to the North Central Texas Council of
Governments. The Transportation and Public Works Department is responsible for the collection and
deposit of funds due to the City.
TO
Fund Department Account Project Program Activity Budget Reference # Amount
ID ID Year (Chartfield 2)
FROM
Fund Department Account Project rProgram Activity Budget Reference # Amount
ID ID Year (Chartfield 2)
Submitted for City Manager's Office by_ Dana Burghdoff(8018)
Originating Department Head: Leann Guzman (8973)
Additional Information Contact: Doug Black (7615)
ATTACHMENTS
a pps.cfwnet.o rg/council_packet/mc_review.asp?I D=29808&cou nci Idate=4/12/2022 2/2
CS39644-EPSA-Project Name
Final Audit Report 2022-04-28
Created: 2022-04-27
By: Andrea Munoz(Andrea.Munoz@fortworthtexas.gov)
Status: Canceled/Declined
Transaction ID: CBJCHBCAABAAbT1cnTFW_GVU63aTiDbK2Xg-jVD1yS6r
"CS39644-EPSA-Project Name" History
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