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R-03-12-18-8G4 - 12/18/2003RESOLUTION NO. R -03-12-18-8G4 WHEREAS, on November 14, 2002, the City of Round Rock ("City") entered into a contract with Corrosion Eliminators, Inc. for the 2002- 2003 Water Storage Tank(s) Rehabilitation Project (Proposal A), and WHEREAS, the City has incurred additional quality control inspection fees in the amount of $8,385.00 as a result of Corrosion Eliminators, Inc. delays in completing the Project, and WHEREAS, Corrosion Eliminators, Inc. has agreed to reimburse the City for the additional inspection costs by deducting said amount from its final compensation, and WHEREAS., the City and Corrosion Eliminators, Inc. 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 Corrosion Eliminators, 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. 9PFDeSktop\:�ODI,,A/W,�R'LDOX/O:/WDOX/RESOLVPI/R3]2A8G4.WPD/Sc RESOLVED this 18th day of December, 2003. [WWELL, Mayor of Round Rock, Texas AT EST: (jU&7bAW �P) 4t�� - CHRISTINE R. MARTINEZ, City cretary 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 Corrosion Eliminators, Inc., a Texas corporation ("CORROSION") WITNESSETH: WHEREAS, on or about November 14, 2002, the CORR and CORROSION entered an Agreement wherein CORROSION agreed to perform rehabilitation and painting water tanks in Proposal A to the 2002 CIP Tank Rehabilitation Project which consisted of WTP 1.0 MG Clearwell and WTP 2.0 MG Clearwell (the "Project'); 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, on or about September 26, 2002, the CORR entered an Agreement with John H. Konzen ("Consultant') for consulting, project construction administration and management, and inspection of all of the tanks included in the 2002 CIP Tank Rehabilitation Project, including those for the Project; WHEREAS, an additional forty-three (43) days of quality control inspection were required for the Project at an additional cost of Eight Thousand Three Hundred Eighty-five Dollars ($8,385.00) ("Additional Inspection Costs"); WHEREAS, Consultant has made a claim to CORR for the Additional Inspection Costs; and WHEREAS, CORROSION has agreed to deduct the Additional Inspection Costs 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 CORROSION agrees that CORR may deduct the Additional Inspection Costs from the Retainage held by CORR, and 2. RELEASE BY CLAIMANTS In consideration of the deduction of the Additional Inspection Costs 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 CORROSION and all P EXHIBIT 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 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. Page 2 of 4 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 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. CORROSION ELIMINATORS, INC. By: Ocey Dow Title: President CITY OF ROUND ROCK By: Nyle Maxwell Title: Mayor Page 3 of 4 STATE OF TEXAS § COUNTY OF WILLIAMSON § SUBSCRIBED AND SWORN TO before me by Ocey Dow, President of Corrosion Eliminators, Inc., on this day of November, 2003. Notary Public, State of Texas My Commission Expires: STATE OF TEXAS § COUNTY OF WILLIAMSON § 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: Page 4 of 4 WATER PLANT • 0 Legend • Tanks N 2002-2003 TANK w E REHABILITATION PROJECT rDROCK,TEXAS sPROPOSAL "A" msso" PRosm`" S/GRAPHICS/ENGINEERING/TANK REHAB PROJ DATE: December 12, 2003 SUBJECT: City Council Meeting - December 18, 2003 ITEM: 8.G.4. Consider a resolution authorizing the Mayor to execute a Settlement Agreement and Release with Corrosion Eliminators, Inc. for the 2002-2003 Water Storage Tank(s) Rehabilitation Project - Proposal A. 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 Corrosion Eliminators, 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 $8,385.00. Funding: Cost: Source of funds: Outside Resources: ($8,385.00) Capital Project Funds (Self -Financed Utility) Corrosion Eliminators, Inc. Impact/Benefit: Contractor and not the City will pay for the contractors additional inspections 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 day of D�C�mtje, , 2003, by and between City of Round Rock, a home -rule municipal corporation ("CORR"), and Corrosion Eliminators, Inc., a Texas corporation ("CORROSION") WITNESSETH: WHEREAS, on or about November 14, 2002, the CORR and CORROSION entered an Agreement wherein CORROSION agreed to perform rehabilitation and painting water tanks in Proposal A to the 2002 CIP Tank Rehabilitation Project which consisted of WTP 1.0 MG Clearwell and WTP 2.0 MG Clearwell (the "Project'); 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, on or about September 26, 2002, the CORR entered an Agreement with John H. Konzen ("Consultant') for consulting, project construction administration and management, and inspection of all of the tanks included in the 2002 CIP Tank Rehabilitation Project, including those for the Project; WHEREAS, an additional forty-three (43) days of quality control inspection were required for the Project at an additional cost of Eight Thousand Three Hundred Eighty-five Dollars ($8,385.00) ("Additional Inspection Costs"); and WHEREAS, Consultant has made a claim to CORR for the Additional Inspection Costs; WHEREAS, CORROSION has agreed to deduct the Additional Inspection Costs 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 CORROSION agrees that CORR may deduct the Additional Inspection Costs from the Retainage held by CORR, and 2. RELEASE BY CLAIMANTS In consideration of the deduction of the Additional Inspection Costs 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 CORROSION and all k9- m - o- O &' Page 1 of 4 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 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. Page 2 of 4 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 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. CORROSION ELIMINATORS, INC. C By: Ocey Dow Title: Preside;q' CITY OF ROUND Page 3 of 4 STATE OF TEXAS § COUNTY OF WILLIAMSON § SUBSCRIBED AND SWORN TO before me by Ocey Dow, President of Corrosion Eliminators, Inc., on this day of No*emiber, 2003. jo--ouo.ry 1004, GENEVA C. DOW NOTARY PUBLIC S'I ATE OF TEXAS My Commission Expires 12-14-2005 STATE OF TEXAS § COUNTY OF WILLIAMSON § Notary Public, State of Texas My Commission Expires: a -14 - SUBSCRIBED AND SWORN TO before me by Nyle Maxwell, Mayor of the City of Round Rock, on this day of Nevember 2Q03. Notary Public, State of Texas SHERRI M0NR0E Notary Public, state of Texas My Commission Expires: 11 ICUC 0 D My Commission ExPires . MAY 7, 2007 .. '7 Page 4 of 4