Loading...
R-03-12-18-8G5 - 12/18/2003RESOLUTION NO. R -03-12-18-8G5 WHEREAS, on November 14, 2002, the City of Round Rock ("City") entered into a contract with Gulf States Protective Coatings, Inc. ("Gulf States") for the 2002-2003 Water Storage Tank(s) Rehabilitation Project (Proposal B), and WHEREAS, the City has incurred additional quality control inspection fees in the amount of $15,015.00 as a result of Gulf States' delays in completing the Project, and WHEREAS, Gulf States has agreed to reimburse the City for the additional inspection costs by deducting said amount from its final compensation, and WHEREAS, the City and Gulf . States 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 Gulf States Protective Coatings, 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. @PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R3i21BG5.WPD/SC RESOLVED this 18th day of December, 2003 AMT: n taw CHRISTINE R. MARTINEZ, City Sec tart' 11/07/2003 FRI 12:17 FAX SHEETS & CROSSFIELD P.C. 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 Gulf States Protective Coatings, Inc., a Texas corporation ("GULF STATES') WITNESSETII: Q003/006 WHEREAS, on or about November 14, 2002, the CORR and GULF STATES entered an Agreement wherein GULF STATES agreed to perform rehabilitation and painting water tanks in Proposal B to the 2002 CIP Tank Rehabilitation Project which consisted of the Lake Creek Water Tank and the Chandler Creek Elevated Water Tank (the "Project'; WHEREAS, the terms ofthe 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 seventy-seven (77) days of quality control inspection were required for the Project at an additional cost of Fifteen Thousand Fifteen Dollars ($15,015.00) ("Additional Inspection Costs"); WHEREAS, Consultant has made a claim to CORR for the Additional Inspection Costs; and WHEREAS, GULF STATES has agreed to deduct the Additional Inspection Costs from the Retainage held by CORR, NOW TFIEREFORE, 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 IIETENTTON GULF STATES 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 Page 1 of 4 EXHIBIT D D "All II 11/07/2003 FRI 12:17 FAX SHEETS & CROSSFIELD P.C. Q004/006 not be challenged, CORR does hereby remise, release and discharge GULF STATES 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 orunknown, 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• SIETTLEA= 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 ofany 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 fu ther represents that thcyhave carefullyread this Settlement Agreement and Release and know the contents thereof, and acknowledge that they have had the opportunityto berepresented by counsel oftheir 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-LE—GALLY BMIN 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. b. AGREEMENT WAS NIEGOTIATFD The parties represent and agree that this Settlement Agreement and Release supersedes any and all oral cornmunications 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 Page 2 uf4 11/07/2003 FRI 12:18 FAX SHEETS & CROSSFIELD P.C. U005/006 EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS AMONG TIIE PARTIES. 7• ENTIRE A RE.EMENT 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. GOVERNTNGLAW 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 l aw 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, GULF STATES PROTECITVE COATINGS, INC. C By: Jane McKenzie Title: President CITY OF ROUND ROCK By: Nyle Maxwell Title: Mayor Pagc 3 of 4 ' 11/07/2009 FRI 12:•18 FAX SHEETS & CROSSFIELD P.C. 11006/006 STATE OF TEXAS COUNTY OF WILLIAMSON SUBSCRIBED ANIS SWORN TO before me by lane McKenzie, President of Gulf States Protective Coating, Inc., on this /,3y -A day Of November, 2003. GLENN M. FOWLER MY COMMISSION EXPIRES AUGUST 29, 2005 STATE OF TEXAS § COUNTY OF WILLIAMSON § Notary Public, State of Tcxas My Commission Expires:_ f' 9 —O <S 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: Pagc 4 of 4 Legend • Tanks CHANDLER CREEK TANK N 2002-2003 TANK W E REHABILITATION PROJECT 'ROUND ROCK, TEXAS S PROPOSAL "B'' IA PROSPEMY S/GRAPHICS/ENGINEERING/TANK REHAB PROJ DATE: December 12, 2003 SUBJECT: City Council Meeting - December 18, 2003 ITEM: 8.G.5. Consider a resolution authorizing the Mayor to execute a Settlement Agreement and Release with Gulf States Protective Coatings, Inc. for the 2002-2003 Water Storage Tank(s) Rehabilitation Project - Proposal B. 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 Gulf States Protective Coatings, 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 $15,015.00. Funding: Cost: Source of funds: Outside Resources: ($15,015.00) Capital Project Funds (Self -Financed Utility) Gulf States Protective Coatings, 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 11/07,/2003 FRI 12:17 FAX SHEETS & CROSSFIELD P.C. SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT and RELEASE is entered into this /9 day of , 2003, by and between City of Round Rock, a home -rule municipal corporation ("CORR"), and Gulf States Protective Coatings, Inc., a Texas corporation ("GULF STATES") WITNESSETH - WHEREAS, on or about November 14, 2002, the CORR and GULF STATES entered an Agreement wherein GULF STATES agreed to perform rehabilitation and painting water tanks in Proposal B to the 2002 CIP Tank Rehabilitation Project which consisted of the Lake Creek Water Tank and the Chandler Creek Elevated Water Tank (the "Project"); WHEREAS, the terms ofthe 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. Konen ("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 seventy-seven (77) days of quality control inspection were required for the Project at an additional cost of Fifteen Thousand Fifteen Dollars ($15,015.00) ("Additional Inspection Costs ,); WHEREAS, Consultant has made a claim to CORR for the Additional Inspection Costs; and WHEREAS, GULF STATES has agreed to deduct the Additional Inspection Costs from the Retainage held by CORK, 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 GULF STATES 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 Page l of 4 Q 003/006 11/07/2003 FRI 12:17 FAX SHEETS & CROSSFIELD P.C. Z004/006 not be challenged, CORR does hereby remise, release and discharge GULF STATES 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 orunknown, 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 theyhave carefullyread 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 LEGALIY 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. b. 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, TIIIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY Page 2 vf 4 11/07/2003 FRI 12:18 FAX SHEETS & CROSSFIELD P.C. 2005/006 EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS AMONG TIIE 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. S. 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, GULF STATES PROTECTIVE COATINGS, INC. By: Jane McKenzie Title: President CITY OF ROUND Mayor Page 3 of 4 11/07/2003 FRI 12:18 FAX SHEETS & CROSSFIELD P.C. Q006/006 STATE OF TEXAS § § COUNTY OF WILLIAMSON § SUBSCRIBED AND SWORN TO before me by lane McKenzie, President of Gulf States Protective Coating, Inc., on this day of November, 2003. GLENN M. FOWLER ;s ni • •' MY COMMISSION EXPIRES .£ AUGUST 29, 2005 STATE OF TEXAS § COUNTY OF WILLIAMSON § Notary Public, State of Tcxas My Commission Expires, �� Q d SUBSCRIBED AND SWORN TO before me by Nyle Maxwell,Mayor of the City OfRound Rock, on this %g day of X2003. Notary Public, State of Texas My Commission Expires: Pagc 4 of 4