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R-03-12-18-8G3 - 12/18/2003RESOLUTION NO. R -03-12-18-8G3 WHEREAS, on June 28, 2001, the City of Round Rock ("City") entered into a contract with CB&I Constructors, Inc. ("CB&I".) for the South 81 Standpipe Demolition and Elevated Water Storage Tank Construction Project, and WHEREAS, the City has incurred additional quality control inspection fees in the amount of $46,520.00 as a result of CB&I's delays in completing the Project, and WHEREAS, CB&I has agreed to reimburse the City for the additional inspection costs by deducting said amount from its final compensation, and WHEREAS, the City and CB&I desire to enter into a Settlement Agreement and Release in regards to this matter, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Settlement Agreement and Release with CB&I Constructors, Inc., a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. @I FDeSk[op\::ODMA/WORLDOX/O:/WDOX/RGSOLUTI/R31219G3 WPD/SC RESOLVED this 18th day of December, 2003. AT ST: Man& CHRISTINE R. MARTINEZ, City S retary 2 Mayor Rock, SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT and RELEASE is entered into this day of 2003, by and between City of Round Rock, a home -rule municipal corporation ("CORR" ), and CB&I Constructors, Inc., a Texas corporation ("CB&T" ). WITNESSETH: WHEREAS, on or about June 28, 2001, the CORR and CB&I entered an Agreement wherein CB&I agreed to perform demolition and elevated water storage tank construction for 81 South Standpipe (the "Project"); WHEREAS, the CORR accepted the bid of CB&I for an accelerated construction schedule setting a substantial completion date for June 27, 2002 and a final completion date for August 26, 2002, and agreed to pay an additional Fourteen Thousand Dollars ($14,000.00) ("Accelerated Fee) over the base bid for the accelerated construction schedule; WHEREAS, the terms of the Agreement allow a five percent (5%) retention to be .kept from each monthly payment until final payment (the "Retainage"); WHEREAS, the actual substantial completion date for this Project was November 14, 2002, an additional 140 days beyond the contractual substantial completion date and the final completion date was April 29, 2003, an additional 246 days beyond the final completion date; WHEREAS, the CORR entered an Agreement with John H: Konzen ("Consultant's for inspection services for the Project; WHEREAS, the Consultant incurred additional fees and expenses totaling One Thousand Three Hundred Dollars ($1,300.00) ("Additional Inspection Costs') on the Project; WHEREAS, the CORR entered an Agreement with HDR En ("Engineer') for engineering and construction administration services for the Project; ng� Inc WHEREAS, the Engineer has incurred additional fees and expenses totaling Twenty-three Thousand Three Hundred Dollars ($23,300.00) ("Additional Engineering Fees")on the Project; WHEREAS, a city inspector, employed by the CORR, performed additional inspection services for the Project; WHEREAS, the CORR incurred totaling Seven Thousand Nine Hundred Twenty Dollarslh onal expenses for the city inspector on the Project; ($7g 20.00) (Additional City Expenses") EXHIBIT D "All WHEREAS, Consultant has made a claim to CORR for the Additional Inspection Costs; WHEREAS, the Engineer has made a claim to CORR for the Additional Engineering Fees; WHEREAS, CB&I has agreed to deduct the Additional Inspection Costs, the Additional Engineering Fees, the Additional City Expenses and the Accelerated Fee from the Retainage held by CORR, NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the adequacy and sufficiency of which are hereby acknowledged, and with the intent to be legally bound hereby, the parties hereto agree as follows: 1• DEDUCTION FROM RETENTION CB&I agrees that CORR may deduct the Additional Inspection Costs, the Additional Engineering Fees, the Additional City Expenses and the Accelerated Fee from the Retainage held by CORR, and 2• RELEASE BY CLAIMANTS In consideration of the deduction of the Additional Inspection Costs, the Additional Engineering Fees, the Additional City Expenses and the Accelerated Fees and other good and valuable consideration, receipt of which is hereby acknowledged and the sufficiency of which may not be challenged, CORR does hereby remise, release and discharge CB&I and all of its current, former, and future officers, directors, employees, servants, agents, shareholders, affiliates, attorneys, representatives, successors and assigns thereof, and all of their heirs, executors, and administrators, ( THE RELEASED PARTIES'), of and from any and all manner of actions, causes of action, suits, debts, dues, accounts, bonds, covenants, contacts, agreements, Judgments, costs, claims and demands whatsoever in law or in equity, foreseen or unforeseen, .matured or unmatured, known or unknown, accrued or not accrued, including, without limitation, claims for attorneys' fees, claims for defense, indemnity, "bad faith'', extra -contractual damages, Punitive damages, or any other claim whatsoever, whether fixed or contingent, liquidated or unliquidated, direct or indirect, known or unknown, in connection with, resulting from, or to result from, any damages suffered by CORR relating to incurring additional quality control inspection days by the Consultant and otherwise referred to herein as Additional Inspection Costs which against THE RELEASED PARTIES, CORK ever had, now has, or may have in the future, for or by reason of any cause, matter or thing whatsoever from the beginning of the world to the date of these presents. 3. SETTLEMENT OF CLAIM CORR acknowledges that this Settlement Agreement and Release is being offered as a settlement of a claim and is not an admission by THE RELEASED PARTIES of liability or 1WR of any other matter not expressly addressed in this Settlement Agreement and Release. The Parties further agree that this matter is being settled as purely a business decision without regard to the merits of any additional quality control inspection days. 4. ADVICE OF COUNSEL CORR further represents that they have carefully read this Settlement Agreement m and Release and know the contents thereof, and acknowledge that they have had the opportunity to be represented by counsel of their choosing in connection with all matters relating to this Settlement Agreement and Release and that they are signing this of their own free will. 5• AGREEMENT IS LEGALLY BINDING CORR further agrees that they intend to be legally bound by the promises contained herein and that they are not relying on any representation or statements of THE RELEASED PARTIES or any of them, or any of their agents, representatives, or attorneys, in deciding to enter into this Settlement Agreement and Release. 6• AGREEMENT WAS NEGOTIATED The parties represent and agree that this Settlement Agreement and Release Supersedes any and all oral communications or prior written communications between the parties or their counsel pertaining to the resolution of this claim. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. 7• ENTIRE AGREEMENT The parties agree that this Settlement Agreement and Release represents the entire agreement between the parties and that them are no other agreements with regard to the settlement of this claim. No amendment to, modification or waiver, or consent with respect to, any provision of this Agreement shall be effective unless the same .shall be in writing and signed by the Party against whom enforcement of the amendment, modification, waiver or consent is sought. 8• GOVERNING LAW AND VENUE This Agreement shall be construed and interpreted in accordance with and governed by the laws of the State of Texas, witho shall be in Williamson County, Texas. ut regard to choice of law principles. Venue 9• HEADINGS 2 The headings contained in this Agreement are merely for convenience of reference and shall not under any circumstances affect the meaning or interpretation of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. CB&I CONSTRUCTORS, INC. By: 4-7 ' liths SeIFS Denis Sellers Title: Senior Projer-t- Manager CITY OF ROUND ROCK By: Nyle Maxwell Title: Mayor 3 STATE OF TEXAS COUNTY OF VkHAAAA18M § Montgomery SUBSCRIBED AND SWORN TO before me by Demos Sellers, Senior nR� of Odki Constructors, Inc., on this 2 day of IbJt&K, 2003, �%�;..-;;;'. December A . '�y�•. ho 4f q.. m n oSrsrfX�g �`•©� .. STATE OF TEXAS § COUNTY OF WILLIAMSON § Ooti�P�ubl� /I�iJ w fa[iiG1._ State of Texas My Commission Expires: Qe DA=DS SUBSCRIBED AND SWORN TO before me by Nyle Maxwell, Mayor of the City of Round Rock, on this _ day of November, 2003, Notary Public, State of Texas My Commission Expires: 4 Manager �r _�, �, _._ - �. DATE: December 12, 2003 SUBJECT: City Council Meeting - December 18, 2003 ITEM: 8.G.3. Consider a resolution authorizing the Mayor to execute a Settlement Agreement and Release with CB&I Constructors, Inc. for the 81 South Standpipe Demolition and Elevated Water Storage Tank Construction Project. Resource: Tom Word, Chief of Public Works Operations Tom Clark, Director of Utilities History: This Settlement Agreement and Release Document was prepared by the City Attorney's Office and has been agreed to by CB&I Constructors, Inc. With the execution of this Settlement Agreement and Release Document we can closeout this project. Therefore, we recommend approval of this resolution to reduce the final payment in the amount of $46,520.00 Funding: Cost: Source of funds: Outside Resources: ($46,520.00) Capital Project Funds (Self -Financed Utility) CB&I Constructors, Inc. Impact/ Benefit: Contractor and not the City will pay for the additional inspection and contract administration by our engineer that were due to the contractor's delays Public Comment: N/A Sponsor: N/A EXECUTED DOCUMENT FOLLOWS SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT and RELEASE is entered into this N day of L ' ,%11, 6R.., , 2003, by and between City of Round Rock, a home -rule municipal corporation ("CORR'), and CB&I Constructors, Inc., a Texas corporation ("CB&P'). WITNESSETH: WHEREAS, on or about June 28, 2001, the CORR and CB&I entered an Agreement wherein CB&I agreed to perform demolition and elevated water storage tank construction for 81 South Standpipe (the "Project"); WHEREAS, the CORR accepted the bid of CB&I for an accelerated construction schedule setting a substantial completion date for June 27, 2002 and a final completion date for August 26, 2002, and agreed to pay an additional Fourteen Thousand Dollars ($14,000.00) ("Accelerated Fee") over the base bid for the accelerated construction schedule; WHEREAS, the terms of the Agreement allow a five percent (5%) retention to be kept from each monthly payment until final payment (the "Retainage"); WHEREAS, the actual substantial completion date for this Project was November 14, 2002, an additional 140 days beyond the contractual substantial completion date and the final completion date was April 29, 2003, an additional 246 days beyond the final completion date; WHEREAS, the CORR entered an Agreement with John H. Konzen ("Consultant") for inspection services for the Project; WHEREAS, the Consultant incurred additional fees and expenses totaling One Thousand Three Hundred Dollars ($1,300.00) ("Additional Inspection Costs") on the Project; WHEREAS, the CORR entered an Agreement with HDR Engineering, Inc. ("Engineer") for engineering and construction administration services for the Project; WHEREAS, the Engineer has incurred additional fees and expenses totaling Twenty-three Thousand Three Hundred Dollars ($23,300.00) ("Additional Engineering Fees")on the Project; WHEREAS, a city inspector, employed by the CORR, performed additional inspection services for the Project; WHEREAS, the CORR incurred additional expenses for the city inspector totaling Seven Thousand Nine Hundred Twenty Dollars ($7,920.00) (Additional City Expenses") on the Project; -03-049-�Y63 Costs; WHEREAS, Consultant has made a claim to CORR for the Additional Inspection WHEREAS, the Engineer has made a claim to CORR for the Additional Engineering Fees; WHEREAS, CB&I has agreed to deduct the Additional Inspection Costs, the Additional Engineering Fees, the Additional City Expenses and the Accelerated Fee from the Retainage held by CORR, NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the adequacy and sufficiency of which are hereby acknowledged, and with the intent to be legally bound hereby, the parties hereto agree as follows: 1. DEDUCTION FROM RETENTION CB&I agrees that CORR may deduct the Additional Inspection Costs, the Additional Engineering Fees, the Additional City Expenses and the Accelerated Fee from the Retainage held by CORR, and 2. RELEASE BY CLAIMANTS In consideration of the deduction of the Additional Inspection Costs, the Additional Engineering Fees, the Additional City Expenses and the Accelerated Fees and other good and valuable consideration, receipt of which is hereby acknowledged and the sufficiency of which may not be challenged, CORR does hereby remise, release and discharge CB&I and all of its current, former, and future officers, directors, employees, servants, agents, shareholders, affiliates, attorneys, representatives, successors and assigns thereof, and all of their heirs, executors, and administrators, ("THE RELEASED PARTIES"), of and from any and all manner of actions, causes of action, suits, debts, dues, accounts, bonds, covenants, contacts, agreements, judgments, costs, claims and demands whatsoever in law or in equity, foreseen or unforeseen, matured or unmatured, known or unknown, accrued or not accrued, including, without limitation, claims for attorneys' fees, claims for defense, indemnity, "bad faith", extra -contractual damages, punitive damages, or any other claim whatsoever, whether fixed or contingent, liquidated or unliquidated, direct or indirect, known or unknown, in connection with, resulting from, or to result from, any damages suffered by CORR relating to incurring additional quality control inspection days by the Consultant and otherwise referred to herein as Additional Inspection Costs which against THE RELEASED PARTIES, CORR ever had, now has, or may have in the future, for or by reason of any cause, matter or thing whatsoever from the beginning of the world to the date of these presents. 3. SETTLEMENT OF CLAIM CORR acknowledges that this Settlement Agreement and Release is being offered as a settlement of a claim and is not an admission by THE RELEASED PARTIES of liability or -2- of any other matter not expressly addressed in this Settlement Agreement and Release. The parties further agree that this matter is being settled as purely a business decision without regard to the merits of any additional quality control inspection days. 4. ADVICE OF COUNSEL CORR further represents that they have carefully read this Settlement Agreement and Release and know the contents thereof, and acknowledge that they have had the opportunity to be represented by counsel of their choosing in connection with all matters relating to this Settlement Agreement and Release and that they are signing this of their own free will. 5. AGREEMENT IS LEGALLY BINDING CORR further agrees that they intend to be legally bound by the promises contained herein and that they are not relying on any representation or statements of THE RELEASED PARTIES or any of them, or any of their agents, representatives, or attorneys, in deciding to enter into this Settlement Agreement and Release. 6. AGREEMENT WAS NEGOTIATED The parties represent and agree that this Settlement Agreement and Release supersedes any and all oral communications or prior written communications between the parties or their counsel pertaining to the resolution of this claim. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. 7. ENTIRE AGREEMENT The parties agree that this Settlement Agreement and Release represents the entire agreement between the parties and that there are no other agreements with regard to the settlement of this claim. No amendment to, modification or waiver, or consent with respect to, any provision of this Agreement shall be effective unless the same shall be in writing and signed by the Party against whom enforcement of the amendment, modification, waiver or consent is sought. 8. GOVERNING LAW AND VENUE This Agreement shall be construed and interpreted in accordance with and governed by the laws of the State of Texas, without regard to choice of law principles. Venue shall be in Williamson County, Texas. 9. HEADINGS 2 The headings contained in this Agreement are merely for convenience of reference and shall not under any circumstances affect the meaning or interpretation of this Agreement. IN WITNESS WIIEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. CB&I CONSTRUCTORS, INC. By: gids S611s- Denis Sellers Title: Senior Project Mana er CITY OF ROUND ROCK ke STATE OF TEXAS COUNTY OF V .MWN § Montgomery Denis Senior Pro ect Manager SUBSCRIBED AND SWORN TO before me by Deis Sellers, idmt of ClB&I Constructors, Inc., on this 2 day of NbVeW ft, 2003, December STATE OF TEXAS § COUNTY OF WILLIAMSON § otary Public, State of Texas My Commission Expires: Q& •- 09 -OS SUBSCRIBED AND SWORN TO before me by Nyle Maxwell, Mayor of the City of Round Rock, on this / g day oft2003 '/�7W ) of Nil' c exas 4 1 C. %V% _ Notary Public, State of Texas My Commission Expires: i C- -uc 7