Loading...
HomeMy WebLinkAboutItem 21 - Creek 17 and 23Cc STEM # a r MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: BRUNO RUMBELOW, CITY MANAGER b MEETING DATE: DECEMBER 18, 2012 SUBJECT: CREEK 17 & 23 SETTLEMENT AND RELEASE AGREEMENT RECOMMENDATION: City Council to consider a Settlement and Release Agreement with Azteca Omega Group /Omega Contracting and Freese and Nichols, Inc. relative to Creek 17 & 23 and take any necessary action. BACKGROUND: Freese and Nichols, Inc designed the improvements to Creeks 17 & 23 in southwest Grapevine in December, 2000. Subsequently, Omega was contracted by the City to construct the improvements designed by Freese & Nichols in March, 2001. In early 2012, a segment of the concrete channel wall failed. Subsequent investigation of the failure revealed additional segments of the walls that were in need of some structural upgrading. Freese & Nichols and Omega have entered into an agreement relative to the funding of the repairs and upgrading at no cost to the City of Grapevine. These improvements have been completed. The typical maintenance bond for material and workmanship has a two year period. Freese & Nichols and Omega have undertaken significant repairs to the walls, well after the two year period has expired. The attached settlement agreement releases all parties from any additional obligations on this project. The City Attorney has reviewed and approved the Settlement and Release Agreement. Staff recommends approval. COMPROMISE. SETTLEMENT AGREEMENT AND- RELEASE This Compromise, Settlement .'agreement and Release (hereinafter referred to the "Agreement ") is hereby entered into by and between the City of Grapevine (hereinafter referred to as "Grapevine "), Freese and Nichols, Inc. (hereinafter referred to as " FNI") and the Azteca Omega Group /Omega Contracting (hereinafter referred to as "Omega ") WHEREAS, FNI, an engineering firm entered into a engineering design services contract with Grapevine which, in part, included engineering design for Creek 23 and Creek 17 Channel Improvements in the City of Grapevine and more specifically design services for a channel wall in that location. WHEREAS, Omega entered into a construction contract with Grapevine for the construction of said improvements and more specifically, the channel wall pertaining to the Creek 23 and Creek 17 Channel Improvements referenced above. WHEREAS, after the passage of a substantial period of time, certain portions of the channel wall has encountered instability, and in some situations has structurally failed and/or collapsed. WHEREAS, Omega is undertaking repairs of this channel wall or walls and Omega and FN I have entered into a separate agreement In regards tote funding of those repairs which will be undertaken at no cost to Grapevine. Now THEREFORE, in consideration of the recitals set forth herein, the promises and covenants set forth in this Compromise, Settlement Agreement and Release, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the parties named in this Compromise, Settlement Agreement and Release and their respective predecessors, successors, assigns, heirs, executors, registered professional engineers, Compromise, Settlement Agreement and Release - Page 1 G.%153341CS A- MYFNIOIEGA(D W AREVISED 1 I - 14 -12)- FINAL. DOCX consultants, administrators, insurers and legal representatives agree and shall be bound by the following: 1. Upon acceptance by the City of Grapevine of the repaired walls, each party releases and forever discharges the other parties to this Agreement and their respective predecessors, successors and assigns and, as applicable, their respective current, former, and successor heirs, registered professional engineers, consultants officers, employees, managers, partners, members, agents, attorneys, successors, assigns, representatives, trustees, directors, shareholders, owners, servants, administrators, insurers and legal representatives (which may provide insurance coverage in whole or in part to the channel walls), parents, subsidiaries, affiliates, and related corporations, firms, associations, partnerships, and successor entities from all claims in any way having to do with channel walls made a part of the Creek 23 and Creek 27 Channel Improvements in the City of Grapevine, the structural design and/or construction of those walls and/or their associated repair, as well as any other potential claims, demands, actions, or causes of action, that were asserted or that could have been asserted both actual and exemplary, both as to person and to property, whether at common law or under the statutes of the laws of the State of Texas, that any party may have or hereinafter have by reason of the injuries and /or damages sustained by or in any way having to do with the walls described above. Specifically, in exchange for the releases, and subject to a separate agreement by and between FNI and Omega pertaining to the shared costs of the repairs, Grapevine releases FNI and Omega and the associated entities above after the completion of the wall repairs by Omega and acceptance by Grapevine as substantially complete. 2. Each party hereto acknowledges that it has read and understood the effect of this Agreement. Each party states that it executes this Agreement of its own free will and accord, for the purposes and considerations set forth in this Agreement, and that the person executing this Agreement on behalf of each of the parties has the authority and right to execute same on behalf of such party. Each party agrees to pay all of its own attorneys' fees and costs, expert witness fees, and other expenses arising from the claim described above. 4. All parties warrant and agree that no claim released by this Agreement has been assigned or transferred, by contract, operation of law, or otherwise, to any person or entity not a party to this Agreement. 5. All monies paid or other consideration given herein is without admission of liability. Compromise, Settlement Agreement and Release - Page 2 GA 1 5334 5CSA- CrrYFNIOMEGA(DWAREVISEDI E44- l2)- FINALDOU 6. This Agreement is the entire agreement between the parties and supersedes all prior and contemporaneous agreements, statements, and understandings, except for the separate agreement entered into by and between FN and Omega having to do with the funding of the repairs. This Agreement may not be modified except by in writing signed by a representative of all parties. 7. The terms and conditions of this Compromise Settlement Agreement and Release shall bind and shall inure to the benefit of all parties and their respective beneficiaries, receivers, heirs, legal representatives, trustees, successors, and assigns, directors, officers, agents, servants, consultants, employees, and attorneys, and shall include and run in favor of all parties and their respective heirs, legal representatives, successors and assigns, directors, officers, agents, servants, consultants, employees, and attorneys, past and forever. 8. All parties acknowledge that the persons signing below on their behalf are expressly authorized to sign this Agreement. 9. This Agreement may be executed in one or more counterparts, each of which shall be an original, and this Agreement is effective upon execution of at least one counterpart by each party to this Agreement. facsimile signatures or e-mail signatures shall have the same force and effect as original signatures. 10. As part of the consideration of the execution of this Release, it is expressly agreed and understood that no party admits any negligence or liability or responsibility for the consequences of said occurrence and the execution of this instrument and the agreement by the parties above -named are not to be taken or treated as a confession of liability. The execution of this Agreement does not constitute an admission of the lack of merit on the claims or defenses asserted by any party to this Agreement as it relates to the channel walls, but is strictly and solely to be treated in the nature of the Agreement. IN WITNESS WHEREOF, an original and copies of this instrument have been executed on the dates shown and in the counties noted below. Compromise, Settlement Agreemeni and Release - Page 3 G: J 5334 %CSA- CITYFNIOMEGA(DV rAREVISED31- 14- 12)- FINAL.DOCX ACKNOWLEDGED: CITY OF GRAPEVINE, TEXAS BY: TITLE: STATE OF TEXAS § § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public, on this day personally appeared a duly authorized representative of CITY OF GRAPEVINE, TEXAS known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he /she executed the same for the purpose and consideration therein expressed and in the capacity therein stated. 2012. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of NOTARY PUBLIC IN AND FOR HE STATE OF TEXAS Compromise, Settlement Agreement and Release - Page 4 G1 51341CSA- CITYFMOAEGA(DW AREVISED ) 1- 14- 12)- FINAL.DOCX ACKNOWLEDGED: FREESE AND NICHOLS, INC. BY: ------ .. TITLE: STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public. on this day personally appeared a duly authorized representative of FREESE AND NICHOLS, INC., known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to ine that he/she executed the same for the purpose and consideration therein expressed and in the capacity therein stated. 2012. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS Compromise, Settlement Agreement and Release - Page 5 Cr.5153345CSA- CI7YFNION EGA (DWAREVIS ®11- 14- 12)- F1NAL.DOCX ACKNOWLEDGED: AZTECA OMEGA GROUP /OMEGA CONTRACTING STATE OF TEXAS COUNTY OF BEFORE ME, the undersigned authority, a Notary Public, on this day personally appeared a duly authorized representative of AZTECA OMEGA GROUP /OMEGA CONTRACTING known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he /she executed the same for the purpose and consideration therein expressed and in the capacity therein stated. 2012. GIVEN UNDER My HAND AND SEAL OF OFFICE this the day of NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS Compromise, Settlement Agreement and Release - Page 6 Cr.5153345CSA -CF YFNIOMEGA(DW AU V iSED I 1- 14- 12y- FINAL. DOCX