CM-09-05-072SETTLEMENT AGREEMENT
This is a Settlement Agreement ("Agreement") between the City of Round Rock, Texas
("Round Rock") and Austin Filter Systems, Inc. ("AFS") on the latter date subscribed. Round
Rock and AFS are referenced as a "Party" or collectively as "Parties."
WHEREAS, a dispute exists between Round Rock and AFS concerning that certain
contract for South Creek Channel Improvements, originally dated May 2006 and signed by Nyle
Maxwell in his capacity as Mayor of Round Rock on August 22, 2006, and Mark Toungate as
principal of AFS on July 27, 2006 ("the Contract"); and
WHEREAS, the resolution of the dispute is in doubt; and
WHEREAS, Round Rock has retained One Hundred Seventeen Thousand, Six Hundred
Ninety -Three Dollars ($117,693) under the Contract; and
WHEREAS, both Parties to this Agreement concede that bona fide disputes and
controversies exist between them both as to liability and the amount of damages, if any, that are
due because of the disputes between them; and
WHEREAS, all parties seek to peacefully resolve any dispute and avoid litigation;
NOW THEREFORE, the Parties hereby agree to the following settlement of the Contract
dispute plus other good and valuable consideration, the adequacy of which is acknowledged:
TERMS OF SETTLEMENT AGREEMENT
1) The recitals above are incorporated herein.
2) No Liability/No Fault/No Damages. This Agreement is a compromise of doubtful and
disputed claims. In recognition of the bona fide disputes over the interpretation and
execution of the Contract obligations, the Parties expressly enter this Agreement with each
Party expressly denying both their own fault and liability to the other Party under the
Contract. Each Party expressly denies fault or liability under the Contract, and nothing in
this Contract shall be interpreted as an admission of liability of either Party. No damages
under the Contract, including liquidated damages, shall be assessed against either Party for
any reason under the Contract. Damages may be sought as allowed by common law or
statute for any non-compliance with this Agreement.
3) Partial Release of Retainage. Round Rock will release within thirty (30) days of the last
signature below, Ninety -Three Thousand Six Hundred Ninety -Three Dollars ($93,693.00)
retainage to AFS.
4) Execution of Change Order. Round Rock and AFS shall execute a Change Order in a form
substantially similar to Exhibit A, attached hereto, which deletes and adjusts certain work.
CN.- D61-0 5 - 0 12
SETTLEMENT AGREEMENT
5) Ground Coverage. Round Rock shall keep Twenty -Four Thousand Dollars ($24,000.00) of
retainage ("$24,000 retainage") until AFS complies with this paragraph. AFS shall achieve
ground coverage on the areas indicated in the Contract to specifications listed in Section
604.5 ("Non -Native Seeding") until it reaches 95% coverage with bare areas not exceeding
16 square feet and a grass height of a minimum of 1 and one-half inches, pursuant to Section
604.8 of the Technical Specifications to the Contract within Three Hundred Sixty -Five (365)
days of the signing of this Agreement. Meeting the specifications of 604.8 for non-native
seeding shall be the sole factor in Round Rock's determination of acceptance in 5.B below.
A. The ground coverage shall be released by AFS to Round Rock in sections of AFS's
choosing. The entire area shall not be divided into more than Six (6) sections. AFS
shall keep grasses and weeds in each section at or below 18" in height until Round
Rock accepts the section as provided in 5.B below.
B. Upon notice from AFS that a section has achieved ground coverage to the
specifications in the Contract, within Fourteen (14) days the City Engineer for Round
Rock must issue a certificate of completion for that section (hereinafter deemed an
"Accepted" section), or a written statement delineating that part of the ground
coverage that does not meet specifications in the Contract. Once a section is
Accepted by Round Rock, AFS has no more liability or responsibility with respect to
that section.
C. Within Thirty (30) days after Round Rock Accepts a section, Round Rock shall
release to AFS the proportionate portion of the $24,000 retainage. Such proportion is
the fractional share of $24,000 with the numerator equal to the surface area of the
section and the denominator equal to the surface area of all sections the land has been
divided into under Paragraph 5(A). Such fractional share being reasonably calculated
as agreed upon by AFS and the City Engineer. Within Thirty (30) days after the last
section is Accepted, the entirety of the $24,000 retainage shall be released to AFS.
D. Round Rock's sole remedy for AFS's failure to meet the Technical Specifications in
the Contract for ground coverage for any section within 365 days of the date of this
Agreement is for Round Rock to retain the proportionate portion of the $24,000
retainage.
6) Duty of Good Faith. Each party owes the duty of good faith and fair dealing to the other with
respect to the obligations referenced herein.
7) Further Assurances. Each of the Parties covenants and agrees that it and its successors and
assigns will execute such further agreements, assurances, waivers, and documents, and
otherwise do and perform or cause to be done or performed such further and other acts and
things that may be necessary or desirable from time to time in order to give full effect to this
Agreement and every part thereof.
8) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
successors and assigns of each of the Parties hereto respectively.
ROUND ROCK / AUSTIN FILTER SYSTEMS SETTLEMENT AGREEMENT
PAGE 2 OF 5
SETTLEMENT AGREEMENT
9) Authority to Enter Agreement. Each person signing on behalf of each Party hereby
represents and warrants that he/she/it has the authority to enter into this Agreement.
10) Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas. Venue shall lie in Williamson County, Texas.
11) Construction of Agreement. The language of all the sections of this Agreement shall in all
cases be construed as a whole, according to the language's fair meaning, and not strictly for
or against any of the Parties. As used in this Agreement, the masculine, feminine or neuter
gender and singular or plural number shall be deemed to include the others whenever the
context indicates or so requires.
12) Counterparts. This Agreement may be executed in one or more counterparts, all of which
together shall be deemed to be one instrument.
13) No Assignment. The parties each represent and warrant to one another that they have not
sold, assigned, transferred, conveyed or otherwise disposed of any potential claim or demand
covered by this Agreement.
14) Waiver. No waiver of any portion of this Agreement shall be effective unless made in
writing. No waiver of any breach of any provision of the Agreement shall constitute a
waiver of any subsequent breach of the same or any other provision of the Agreement.
15) Savings Clause. If any provision of this Agreement, or the application of such provision to
any person or circumstance, shall be held invalid, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to which is held
invalid, shall not be affected thereby.
16) Attorney's Fees. In any action or proceeding involved in the enforcement of, or defense
against, any provision of this Agreement, the prevailing Party in such action or proceeding
shall be entitled to reasonable and necessary attorney's fees and all costs and expenses
incurred in connection with such action or proceeding. In addition, the nonprevailing Party
shall pay all costs and expenses incurred in enforcing such award or judgment, and this
obligation shall be severable from the other provisions of this section and shall survive any
judgment, order or award not deemed to be merged therewith. Attorney's fees incurred
otherwise will be borne by the party incurring the same.
ROUND ROCK / AUSTIN FILTER SYSTEMS SETTLEMENT AGREEMENT PAGE 3 OF 5
SETTLEMENT AGREEMENT
IN WITNESS WHEREOF, the above has been agreed
Austin Filter Sy
Signature
e4 (t f To v trs fore* 5/iOgwi
Print Name and Title
Date
City of Round Rock
Sign. ture
Print Name and Title
I • U°l
Date
ROUND ROCK / AUSTIN FILTER SYSTEMS SETTLEMENT AGREEMENT PAGE 4 OF 5
4
SETTLEMENT AGREEMENT
EXIIIBIT A
ROUND ROCK / AUSTIN FILTER SYSTEMS SETTLEMENT AGREEMENT
PAGE 5 OF 5
CITY OF ROUND ROCK
CONSTRUCTION CHANGE ORDER
DEPARTMENT: Engineering & Development Services
PROJECT: South Creek Channel Improvements
ORIGINAL CONTRACT PRICE:
PREVIOUS CHANGE ORDERS:
THIS CHANGE ORDER:
CHANGE ORDERS TO DATE:
$2,519,793.75
$41,210.12
($231,143.87)
($189,933.75)
CHANGE DATA
PAGE 1 OF 1
October 28, 2008
CHANGE ORDER NO: #4
JUSTIFICATION:
Change Order # 4 Is needed to delete and
adjust quantities for project close out.
ITEM #
1
2
3
4
5
6
7
8
9
10
11
12
DESCRIPTION OF
CHANGES
Delete Base Bid Item # 19, 24* dry
rock riprap.
Delete Base Bid Item # 20, 6* dry
rock riprap.
Delete grass growth requirement of
Base Bid Item #21, non-native
seeding for erosion control method.
Delete Base Bid Item # 24, filter fabric.
Adjust quantity of Base Bid item # 27,
stabilized construction entrance.
Delete Base Bid Item # 28, silt fence.
Delete grass growth requirement of
AIL -1 Bid Item #5, non-native
seeding for erosion control method.
Adjust quantity of Alt -2 Bid Item # 4,
non-native seeding for erosion
control method.
Delete grass growth requirement of
Alt. -2 Bid Item #4, non-native
seeding for erosion control method.
Adjust quantity of Alt -2 Bid Item # 5,
soil retention blanket.
Delete Alt -2 Bid Item # 7, filter curb
inlet protection.
Adjust quantity of Alt -2 Bid # 8. rock
berm.
UNIT
SY
Cy
AC
SY
EA
LF
AC
SY
AC
SY
EA
LF
QTY.
-968
-1,710
-5.34
-987
-1
-2,000
-2,975.00
-361.12
-808.88
-361.12
-2
-28
UNIT
PRICE
$58.00
$80.00
$3,920.42
$2.30
$5,300.00
$2.00
$0.81
$1.35
$0.81
$3.80
$63.00
$23.00
AMOUNT
(56,144.00)
(136,800.00)
(20,935.04)
(2,270.10)
(5,300.00)
(4,000.00)
(2,409.76)
(487.51)
(655.20)
(1,372.26)
(126.00)
(644.00)
ADDED DAYS
CALENDAR/
WORKING
0
0
0
0
0
0
0
0
0
0
0
0
6I Ty i4-4A-NriCk-erill2-
PREPARED BY:
SIGNATURE
PRINT NAME/TITLE: ,$4r1Af This .. y ' f/jl., at A
`I -1 5-0
PROJECT MANAGER DATE
Austi lite stems, Inc.
TOR
1
TOTAL:
c�.(.oct
($231,143.87)
0
PERCENT OF ORIGINAL CONTRACT PRICE
THIS CHANGE ORDER:
PREVIOUS CHANGE ORDER:
TOTAL % CHANGE:
ORIGINAL CONTRACT PRICE PLUS
CHANGE ORDERS: $2,329,860.00
($231,143.87)
$41,210.12
-7.54%
DATE: April 29, 2009
SUBJECT: City Manager Approval — May 1, 2009
ITEM: Consider executing a Settlement Agreement with Austin Filter System
Department: Engineering and Development Services
Staff Person: Danny Ha!den, P.E., City Engineer
Justification:
This Settlement Agreement would resolve any and all disputes between Austin Filter Systems
(AFS) and the City of Round Rock and to establish criteria for the completion and final payments
associated with the South Creek Channel Improvements contract.
Funding:
Cost: ($231,143.87)
Source of funds: 2002 G. O. Bond
Original Contract
Previous Change Orders
Change Order # 4 (Final)
Revised Contract
Outside Resources: Espey Consultants, Inc.
Background Information:
Amount
$2,519,793.75
$41,210.12
($231,143.87)
$2,329,860.00
% Change
N/A
1.64%
-9.17%
-7.54%
The South Creek Channel Improvements Project contract was executed by the City on August
22, 2006. Controversies and disputes regarding the contract have arisen between the City and
Austin Filter Systems, Inc.
This agreement would settle these controversies and disputes. Included in the agreement is
change order No. 4 which will reduce the current contract by $231,143.87 and establish the
final contract amount. The settlement agreement also addresses how retainage will be paid by
the City and the responsibility of Austin Filter Systems, Inc. with respect to revegetation
requirements throughout the project area.
Public Comment: N/A
UPDATED APRIL 2008