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Home My WebLink About190-11 RESOLUTIONRESOLUTION NO. 190-11 A RESOLUTION APPROVING A SETTLEMENT AGREEMENT BETWEEN THE CITY, HECKATHORN CONSTRUCTION COMPANY, INC., DON SPANN AIA ARCHITECT, AND BATSON BRAVO ENGINEERING RELATED TO MOLD REMEDIATION AND REPAIRS COMPLETED AT FIRE STATION NO. 3, AND APPROVING A BUDGET ADJUSTMENT IN THE AMOUNT OF $12,170.00 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves a settlement agreement between the City, Heckathorn Construction Company, Inc., Don Spann AIA architect, and Batson Bravo Engineering related to mold remediation and repairs completed at Fire Station No. 3. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment in the amount of $12,170.00, a copy of which is attached as Exhibit "A". PASSED and APPROVED this 1St day of November, 2011. APPROVED: By: ON LD JO `V N, Mayor ATTEST: By: SONDRA E. SMITH, City Clerk/Treasurer °��oaerrrrrre��o �G\l Y pF%&,5 FAYETTEVILLE ° s�s� eeeee° o . a4'GT04�®�+�°'�1® City of Fayetteville, Arkansas Budget Adjustment Form V11.0425 Budget Year 2011 Division: Fire Department Department: Fire Department Request Date 11/1/2011 Adjustment Number BUDGET ADJUSTMENT DESCRIPTION / JUSTIFICATION This budget adjustment recognizes revenue received from a settlement agreement between the City of Fayetteville, Heckathorn Construction Company, Inc., Don Spann AIA Architect, and Batson Bravo Engineering for mold remediation and repairs completed at Fire Station Number 3. Division Head Date Budget Director ,J p rt - nt DirectoP:2Z:;--- 4c3. Finance Director Chief Sta Date -/yfl Date it) --1-7-)41( Date .1141 /6-1g-/1 Date M-yor t Prepared By: Ginny Gundlach Reference: clynch Budget & Research Use Only Type: A BCDEP General Ledger Date Posted to General Ledger Checked / Verified Initial Date Initial Date TOTAL BUDGET ADJUSTMENT 12,170 12,170 Increase / (Decrease) Project.Sub Account Name Account Number Expense Revenue Number Building & grounds maint 1010.3020.5400.00 12,170 Misc Revenue - Fire 1010.0001.4996.05 12,170 C:\DOCUME-1\clynch\LOCALS-1\Temp\XPgrpwise\BA 11-xxx Fire Station 3 Settlement Novl1.xls 1 of 1 David Dayringer Submitted By City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements November 1, 2011 City Council Meeting Date Agenda Items Only Fire Division Action Required: Fire Department A resolution approving a settlement agreement between the City of Fayetteville, Heckathorn Construction Company, Inc., Don Spann AIA Architect, and Batson Bravo Engineering for mold remediation and repairs completed at Fire Station Number 3 and approving a budget adjustment in the amount of $12,170.00. Cost of this request 1010.3020.5400.00 Account Number Project Number Budgeted Item 135,775.00 Category / Project Budget 104,312.98 Maintenance Program Category / Project Name Fire Operations Funds Used to Date Program / Project Category Name 31,462.02 General Remaining Balance Fund Name Budget Adjustment Attached X Department Director /O:Date /at —1 / Previous Ordinance or Resolution # Original Contract Date: 16 '"(T/ 1 Original Contract Number: City Attorney Date Finance and Internal Services Director -1) 26) Date Date Received in CO 10-14-1 1 P03: 04 R CV D Clerk's Office Comments: Revised January 15, 2009 'Mtteville ARKANSAS www.accessfayetteville.org CITY COUNCIL AGENDA MEMO THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENT CORRESPONDENCE To: Mayor and City Council From: David Dayringer, Fire Chief Date: November 1, 2011 Subject: A resolution approving a settlement agreement between the City of Fayetteville, Heckathorn Construction Company, Inc., Don Spann AIA Architect, and Batson Bravo Engineering for mold remediation and repairs completed. at Fire Station Number 3 and approving a budget adjustment in the amount of $12..170.00. PROPOSAL: The City of Fayetteville Fire Department discovered mold at Fire Station Number 3 during the second week of August 2010. The firefighters were relocated from the station to Fire Station Number 1 and the mold was tested and determined to be dangerous. Mold growth is fostered from humidity levels above 55%. The air conditioning system in Fire Station Number 3 did not remove enough moisture from the air to keep the relative humidity below an average of 55%. The Architect, Engineer, General Contractor and Mechanical Contractor each had a role in the A/C system not dehumidifying the air. The City accepted the building without the prescribed Test, Adjust and Balance (TAB) procedure called for in the specifications, which would have discovered the A/C issues prior to occupying the building. All four parties wish to resolve and settle any and all claims they might have regarding the mold problem against another party by agreeing to pay one-quarter of the total $66,843.22 cost for the analysis, remediation, reconstruction, relocation costs, and post remediation testing caused by the mold problem. All agree that each party's share shall be $16,710.81. RECOMMENDATION: Fire Department staff recommends a resolution approving the attached settlement agreement between the City of Fayetteville, Heckathorn Construction Company, Inc., Don Spann AIA Architect, and Batson Bravo Engineering for mold remediation and repairs completed at Fire Station Number 3 and approving a budget adjustment in the amount of $12,170.00 to recognize revenue received as a result of the settlement. BUDGET IMPACT: The City incurred a total of $28,881.76 in out-of-pocket costs related to the mold problem which have been included in the attached settlement agreement. A payment from Engineer Charles Batson in the amount of $7,455A1 along with a payment from Architect Don Spann in the amount of $4,715.55 have been received to reimburse the City for costs incurred in excess of the settlement agreement amount. Approval of the attached budget adjustment is requested to recognize the revenue received from this reimbursement. ave evi le Departmental Correspondence ARKANSAS www.accessfayettevil le.org LEGAL DEPARTMENT TO: Mayor Jordan Don Marr, Chief of Staff David Dayringer, Fire Chief FROM: Kit Williams, City Attorney DATE: September 28, 2011 RE: Final Settlement Agreement Kit Williams City Attorney Jason B. Kelley Assistant City Attorney For over a year, Chief Dayringer has been working on resolving the mold problem in Station No. 3 and determining the proper figures for the Settlement Agreement for the necessary mold remediation and reconstruction. The HVAC for this Fire Station was improperly designed and/or constructed such that it provided a water source allowing mold to grow, damage the building and cause discomfort or danger to our firefighters such that remediation and some reconstruction became necessary. Recognizing the difficulty to prove clear causation and responsibility for this mold problem and the likely delay and expense of litigation, Fire Chief Dayringer has sensibly worked with the engineer, architect and contractor to settle all issues by allocating 25% of all necessary costs and expenditures to each of the parties including the City of Fayetteville. The $16,710.81 per party share not only fully resolves this issue, it is probably less than each party would have had to spend to fully litigate which party would have been the most "at fault" and what each party should pay. At the end of this costly litigation, there still would have been the remediation and reconstruction costs that some or all of the parties would have to pay. Therefore, I agree with Chief Dayringer (as I have for the last year) that this is a good and fair settlement for all concerned including Fayetteville's taxpayers. RESOLUTION NO. A RESOLUTION APPROVING A SETTLEMENT AGREEMENT BETWEEN THE CITY, HECKATHORN CONSTRUCTION COMPANY, INC., DON SPANN AIA ARCHITECT, AND BATSON BRAVO ENGINEERING RELATED TO MOLD REMEDIATION AND REPAIRS COMPLETED AT FIRE STATION NO. 3, AND APPROVING A BUDGET ADJUSTMENT IN THE AMOUNT OF $12,170.00 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves a settlement agreement between the City, Heckathorn Construction Company, Inc., Don Spann AIA architect, and Batson Bravo Engineering related to mold remediation and repairs completed at Fire Station No. 3. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment in the amount of $12,170.00, a copy of which is attached as Exhibit "A". PASSED and APPROVED this 1st day of November, 2011. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer SETTLEMENT AGREEMENT On this 6th day of October, 2011, the City of Fayetteville, Heckathorn Construction Company, Inc., Don Spann AIA Architect, and Batson Bravo (Engineering) agree as follows: WHEREAS, Fayetteville Fire Station #3 was designed by Architect Don Spann, constructed by Heckathorn Construction Company, Inc., engineering by Batson Bravo, with building safety inspections by the City of Fayetteville; and WHEREAS, a significant mold problem developed that caused the City of Fayetteville to temporarily remove its Firefighting Company while inspection and analysis of the mold problem could beconducted and a remediation plan could be developed; and WHEREAS, the recommended mold remediation plan with all necessary repairs has been accomplished by Heckathorn Construction Company, Inc. for $35,520.62 (as shown on Exhibit A); and WHEREAS, all out-of-pocket costs to the City of Fayetteville should be included in this settlement agreement which are itemized on Exhibit A and total $28,881.76; and WHEREAS, Engineer Charles Batson has spent $1,800.00 for a TAB test as shown on Exhibit A; and WHEREAS, Don Spann as the architect has spent $640.84 as shown on Exhibit A. NOW THEREFORE, all four parties wish to resolve and settle any and all claims they might have regarding the mold problem against another party by agreeing to pay one-quarter of the total costs ($66,843.22) for the analysis, remediation, reconstruction, relocation costs, and post remediation testing caused by the mold problem as itemized on Exhibit A. All agree that each party's share shall be $16,710.81. All parties further agree as follows: 1. The City of Fayetteville will be credited for its already incurred expenses in the amount of $28,881.76. The City is entitled to a payment of $12,170.95 which shall be paid by Engineer Charles Batson ($7,455.41) and Architect Don Spann ($4,715.55) pursuant to Exhibit A. 2. Don Spann, Architect, will be credited for his already incurred expenditure of $640.84. Don Spann agrees to pay $4,715.55 to the City and $11,354.42 to Heckathorn Construction Company. 3. Heckathorn Construction Company, Inc. has done all the necessary remediation and construction work as agreed by the parties for the total gross compensation of $35,520.62. Heckathorn Construction Company, Inc. shall be paid $7,455.40 by Engineer Charles Batson and $11,354.42 by Architect Don Spann for its remediation and construction work pursuant to Exhibit A. 4. Engineer Charles Batson of Batson Bravo will be credited for the $1,800.00 he already paid and agrees to pay $7,455.40 to Heckathorn Construction Company, Inc. and $7,455.41 to the City of Fayetteville. 5. This Settlement Agreement shall not be effective until all parties have signed the agreement and all payments called for in this agreement have been made. Execution of this Settlement Agreement and making the full payments required hereunder will and does fully and finally resolve and settle any and all claims that any of the parties may have against any other party related to the mold problem in Fire Station #3. Exhibit A is attached to the Agreement in explanation of all costs and payments needed. IN WITNESS OF their agreement with all the terms, conditions, commitments, promises and duties above, the City of Fayetteville, Heckathorn Construction Company, Inc., Don Spann, Architect and Batson Bravo (Engineers) sign below: CITY OF FAYETTEVILLE, ARKANSAS By: Attest:IOWOfr 4-) SONDRA SMITH, Cit ��I R ,„, \„eas m� BATSON BRAVO, ENGINEERS DON SPANN, ARCHITE��(ENGINEERS) //. FAYETTEVILLE.: _ ° e :4' A S °J: :'�-9sy�NT� Gel �s°`o By: DON SPANN ll lino CHARLES BAT ° ON HECKATHORN CONSTRUCTION COMPANY, INC. DON HECKATHORN, President 2 'Exhibit A Fire Station No. 3 Mold Abatement and Station Repair Cost as of 9-26-11 5% of the actual final cost so that all four parties share the cost equally. 4 -Way split $16,710.81 each $7455.41 to the City $7455.40 to Don Heckathorne $4715.55 to the City $11,354.42 to Don Heckathome Total Spent 25% of Cost Return (payment) City of Fayetteville Mold remediation & station repair $28,881.76 $28,881.76. ($16,710.81) $12,170.95 Charles Batson Engineer TAB Test $1,800.00 $1,800.00 ($16,710.81) ($14,910.81) Don Spann Dehumidifier and fans $310.84 Architect Initial mold test - surface only $330.00 $640.84 ($16,710.81) ($16,069.97) Don Heckathome Heat Pump system / Station Repair $37,020.62 General Contractor Credit on Salvaged Equipment -$1,500.00 $35,520.62 ($16,710.81) $18,809.81 The City and Don Heckathorn will be reimbursed by Don Spann and Charles Batson up to a Final Cost $66,843.22 5% of the actual final cost so that all four parties share the cost equally. 4 -Way split $16,710.81 each $7455.41 to the City $7455.40 to Don Heckathorne $4715.55 to the City $11,354.42 to Don Heckathome PAY TO THE ORDER OF BATSON BRAVO ENGINEERS, PA 501-664-3311 1300 BROOKWOOD DR. LITTLE ROCK, AR 72202 ALLIED BANK 81-257/829 Little Rock, AR Seven Thousand Four Hundred Fifty Five and 41/100 Dollars City of Fayetteville 303 West Center Street Fayetteville AR 72701 009290 DATE October 12, 2011 AMOUNT $7,455.41 11'00929011' ':08 29025794 L0002850611■ BATSON BRAVO ENGINEERS, PA 9 Invoice Number Date Voucher Amount Discounts Previous Pay Net Amount Fay Fire Station #3 10/1/11 1344 7,455.41 0.00 0.00 7,455.41 City of Fayetteville ALLIED 1 0447 Totals 7,455.41 0.00 0.00 7,455.41 rscrlrsrzrn tr naa unn: Int •nlY"4'if,"Is 0,6 A:t,,1f,rive.1 rtAr NOTICE TO CUSTOMERS _ THE -PURCHASE OF -AN; INDEMNITY BOND WILL BE --REQUIRED BEFORE ANY -OFFICIAL CHECK OF THIS BANK WILL BEREPLACED " OR REFUNDED IN THE"EVENTJTISLOST, MISPLACED:MI STOLEN. - THE 'IANK IS; NOT OBLIGATED TO TAKE ANY ACTION ON THE -. ABOVEUNTIL THE 9OTH DAY AFTER DATEOP ISSUANCE-. Don Spann Aru1tEct REMITTER - 151 PAY 1-9THE City of Faye tt evi 1 I e, , ORDER OF ffANK —4pb.IC- , - Lowell. 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