HomeMy WebLinkAbout47-17 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 47-17
File Number: 2017-0065
JL BRYSON, INC. AND CH2M HILL ENGINEERS, INC. SETTLEMENT AGREEMENT:
A RESOLUTION TO AUTHORIZE MAYOR JORDAN TO SIGN A SETTLEMENT AGREEMENT WITH
JL BRYSON, INC. AND CH2M HILL ENGINEERS, INC. REGARDING A DELAY CLAIM
ASSOCIATED WITH THE INSTALLATION OF THE OZONE DISINFECTION SYSTEM AT THE
NOLAND WASTEWATER TREATMENT PLANT, TO APPROVE A PAYMENT IN THE AMOUNT OF
$19,000.00 TO JL BRYSON, INC., AND TO APPROVE A BUDGET ADJUSTMENT
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 authorizes Mayor Jordan to
sign a settlement with JL Bryson, Inc. and CH2M Hill Engineers, Inc. regarding a delay claim associated
with the installation of the ozone disinfection system at the Noland Wastewater Treatment Plant.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a payment to JL
Bryson, Inc. in the amount of $19,000.00 pursuant to the settlement agreement.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment,
a copy of which is attached to this Resolution.
PASSED and APPROVED on 2/21/2017
Page 1 Printed on 2122117
Resolution: 47-17
File Number- 2017-0065
Attest:
Page 2
Sondra E. Smith, City Clerk "Freaoi 4""`''rr�er,,�
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Printed on 2122117
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Text File
File Number: 2017-0065
Agenda Date: 2/21/2017 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Resolution
Agenda Number: A. 2
JL BRYSON, INC. AND C112M HILL ENGINEERS, INC. SETTLEMENT AGREEMENT:
A RESOLUTION TO AUTHORIZE MAYOR JORDAN TO SIGN A SETTLEMENT AGREEMENT
WITH JL BRYSON, INC. AND CH2M HILL ENGINEERS, INC. REGARDING A DELAY CLAIM
ASSOCIATED WITH THE INSTALLATION OF THE OZONE DISINFECTION SYSTEM AT THE
NOLAND WASTEWATER TREATMENT PLANT, TO APPROVE A PAYMENT IN THE
AMOUNT OF $19,000.00 TO JL BRYSON, INC., AND TO APPROVE A BUDGET ADJUSTMENT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section I: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to
sign a settlement with JL Bryson, Inc. and CH2M Hill Engineers, Inc. regarding a delay claim associated
with the installation of the ozone disinfection system at the Noland Wastewater Treatment Plant.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a payment to JL
Bryson, Inc. in the amount of $19,000.00 pursuant to the settlement agreement.
Section 3: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget
adjustment, a copy of which is attached to this Resolution.
City of Fayetteville, Arkansas Page 1 Printed on 212212017
Tim Nyander
Submitted By
City of Fayetteville Staff Review Form
2017-0065
!
Legistar File ID
2/21/2017
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
2/1/2017 Utilities Director /
_ Utilities Department
Submitted Date Division / Department
Action Recommendation:
APPROVAL OF A SETTLEMENT AGREEMENT WITH JL BRYSON, INC WHICH AUTHORIZES THE CITY TO PAY $19.000.00
IN SETTLEMENT OF A DELAY CLAIM, AND APPROVAL OF A BUDGET ADJUSTMENT.
Original Contract Number: 2347 Approval Date:
Comments:
Budget Impact:
5400.730-5800-5314.00
Water/Sewer
Account Number
Fund
10008.1
Disinfection System Replacement (UV)
Project Number
Project Title
Budgeted Item? Yes
Current Budget
$
38,592.69
Funds Obligated
$
23,276.00
Current Balance
15,316,69
Does item have a cost? Yes
Item Cost
$
19,000.00
Budget Adjustment Attached? Yes
Budget Adjustment
$
3,684.00
Remaining Budget
0.69
V20140710
Previous Ordinance or Resolution # 30-17
Original Contract Number: 2347 Approval Date:
Comments:
CITY OF
T
ad� V IC
ARKANSAS
MEETING OF FEBRUARY 21, 2017
TO: Fayetteville City Council
THRU: Mayor Lioneld Jordan
Don Marr, Chief of Staff
FROM: Tim Nyander, Utilities Director
DATE: February 1, 2017
CITY COUNCIL AGENDA MEMO
SUBJECT: Approval of a Settlement Agreement with JL Bryson Inc. and CH2M Hill
Engineers, Inc.
RECOMMENDATION:
Staff recommends approval of a settlement agreement with JL Bryson, Inc. which authorizes the
city to pay $19.000.00 in settlement of a delay claim, and approval of a budget adjustment.
BACKGROUND:
The City of Fayetteville and JL Bryson have been negotiating the outcome of a claim as a result
of delays in the completion of the Ozone disinfection system at the Paul R. Noland Wastewater
Treatment Plant. Included in the negotiation has been the final payment for the work for
$30,240.00, and the cost of additional concrete due to a change order at $23,276.00. These
items have already been paid to the vendor.
DISCUSSION:
The remaining $19,000.00 is the City of Fayetteville's portion of the payment to JL Bryson for
delays in the project.
BUDGET/STAFF IMPACT:
Cost savings from the Regional Park Project will be moved to pay a portion of the delay claim.
ATTACHMENTS:
Staff Review Form
Settlement Agreement
Budget Adjustment
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
SETTLEMENT A(.'REEM ENT, MUTUAL RELEASE, AND COVENANT IVO t' TO SUE
This SETTLEMENT AGREEMENT, MUTUAL RELEASE, AND COVENANT NOT
TO SUE (the "Settlement Agreement") is entered into as of the date on which it is fully executed
by all parties (the ".Effective Date") between JL Bryson, Inc. (hereinafter "Bryson"), CH21M HILL
Engineers, Inc. ("C112M"), and the City of Fayetteville, Arkansas (hereinafter "City").
Collectively; Bryson, CH2M, and the City are referred to as the "Parties."
RECITALS
WHEREAS, the City and CH2M entered into an Agreement for Operations, Maintenance,
and Management Services on December 15, 2009 (the "City-CH2M Agreement"), and subsequent
amendments thereto;
WHEREAS, the City and Bryson entered into an Agreement Between City of Fayetteville
and JL Bryson, Inc. (the "City -Bryson Agreement") in which Bryson agreed to perform certain
work in connection with the Paul R. Noland Wastewater Treatment Plant — Ozone Disinfection
Facilities (the "Project");
WHEREAS, disputes have arisen between the City and Bryson with respect to the Project
and the City -Bryson Agreement;
WHEREAS, Bryson filed suit against the City in a litigation styled as JL Bryson, Inc. Y.
(amity of Fayetteville, Arkansas, Circuit Court of Washington County, Arkansas, Case No. 16-2502-
i (the "Litigation");
WHEREAS, the City thereafter sent a letter dated December 20, 2016 to CH21M, requesting
that CH2M defend the City in the Litigation (the "City's Tender"),
WHEREAS, the City and CH2M dispute Bryson's claims, and C142M disputes that it is
obligated to comply with the City's Tender; and
WHEREAS, the Parties, without any admission of liability or wrongdoing, and in order to
avoid the uncertainty and expense of formal or informal dispute resolution proceedings, novo desire
to fully and finally compromise, resolve and settle all issues, disputes, claims, rights, duties, and
obligations between them, whether or not asserted in the Litigation, arising from or related in any
way to the various contracts between the Parties for engineering, construction, and installation of
the B1uelnGreen ozone disinfection system;
&GREEMENT
NOW, THEREFORE; in consideration of the mutual promises and covenants contained in
this Settlement Agreement and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and intending to be legally bound by the terms of this Settlement
Agreement, the Parties do hereby expressly agree as follows:
1. Recitals Part of the Sett]ement Agement: The Recitals above are a material
part of this Settlement Agreement and are incorporated by reference as if fully set forth herein.
I Suttle_nien_t_11ayments:_
a. The City will pay the sutra of $23,276.00 to Bryson as compensation for material
and labor costs related to the additional .concrete work within 15 business days
of the Execution Date of this Settlement Agreement,
b. The City shall also pay the sum of $30,240.00 for the final pay request
submitted by Bryson, for completion of the prt�ject, within 15 business days of
the Execution Date of this Settlement Agreement.
c. In settlement of Bryson's delay claims:
i. The City shall pay to Bryson the suns of $19,0100.00 within 15 business
days of the Execution Date of this Settlement Agreement and
ii. CH2M shall ,pay to Bryson the sutra of $121,000.00 via eheck made
payable to J.L.:Bryson, Inc. and delivered via Federal Express to 20121
E. Hwy. 412., Springdale, AR 72764 within 15 business drays of the
Execution Date of this Settlement Agreement;
3. Dismissal of Litigation: Bryson agrees to dismiss the Litigation with prejudice
Within ten days of receipt of the payments above.
- 4. No Admission: 1t is further understood and agreed that the fulfillment of the terms.
of this Settlement Agreement is merely a compromised settlement and an accord and satisfaction
of potential claims, and does not constitute an admission of liability by any of the Parties.
5, Warranty: The .City, Bryson and CH2M agree that the two-year warranty bond
for construction of the ozone disinfection system commenced on March 15, 2016.
6. Release by Bryson: Except for the obligations cmated by this Settlement Agreement,
effective immediately upon Bryson's receipt of the settlement payments referenced above in
Paragraph 2, Bryson, and its parents, subsidiaries, affiliates, predecessors or successors in interest,
assigns, partners, agents, representatives, attorneys, employees, shareholders, owners, officers,
directors, sureties, and insurers ("Bryson Releasing Parties") do hereby RELEASE, ACQUIT, and
FOREVER DISCHARGE the City and CH2M and their parents, subsidiaries, and affiliates,
including .`.ill predecessors or successors in interest, assigns, partners, agents, representatives,
attorneys, employees, shareholders, owners, officers, directors, subcontractors, suppliers, sureties,
bonding companies, elected officials, and insurers ("City and CH2M Released Parties") from any and
all possible actions, causes of action, suits, aecoutrt.�s, contracts, controversies, agreements, promises,
damages, rights, duties, liens, claims, obligations, allegations, demands, losses, costs, expenses, and
Iiabiliiies, of any kind or nature whatsoever, at law or in equity, whether known or unknown, fixed or
contingent, as well as any express, implied, or equitable indemnity, interest, attorneys' fees, costs;
punitive damages, penalties, statutory penalties, claims based on fraud or concealment, and claims for
malicious prosecution, which the Bryson Releasing Parties have or may have against the City and
CH2M Released Parties arising out of or relating to the City -Bryson Agreement, the City-CH2M
Agreement, the Project, the Litigation, or the City's Tender,
7. Rekl ase_by the City: Except for the obligations created by this Settlement Agreement,
effective immediately upon Bryson's dismissal of the mitigation with prejudice, the City, and its
parents, subsidiaries, affiliates, predecessors or successors in interest, assigns, pztttners, agents,
representatives, attorneys, employees, shareholders, owners, officers, directors, sureties, elected
officials, and insurers ("City Releasing Parties") do hereby RELEASE, ACQUIT, and FOREVER
DISCHARGE Bryson and CH2M and their parents, subsidiaries, and affiliates, including all
predecessors or successors in interest, assigns, partners, agents, representatives, attorneys,
employees, shareholders, owners, officers, directors, subcontractors, suppliers, sureties, bonding
companies, and insurers ("Bryson and CH2M Released Patties') from any and all possible actions,
causes of action., suits, accounts, contracts, controversies, agreements, promises, darnages, rights, duties,
liens, claims, obligations, allegations, demands, losses, costs, expenses, and liabilities, of any kind or
nature whatsoever, at law or in equity, whether known or unknown, fixed or contingent, as well as any
express, implied, or equitable indemnity, interest, attorneys' fees, costs, punitive damages, penalties,
statutory penalties, claims based on fraud or concealment, and claims for malicious prosecution, which
the City Releasin; Parties have or may have against the Bryson and CH2M Released Parties arising out
ofor relating to the City -Bryson Agreement, the City-CH2M Agreement, the Project, the Utigation, or
the City's Tender.
8_ Release by CH�211& Except for the obligations created by this Settlement Agreement
effective immediately upon Brys.on's dismissal of the Litigation with prejudice, CH.2M, and its
parents, subsidiaries, affiliates, predecessors or successors in interest, assigns, partners, agents,
representatives, attorneys, employees, shareholders, owners, officers, directors, sureties, and
insurers ("CH2M Releasing Parties") do hereby RELEASE, ACQUIT, and FOREVER
DISCHARGE :the City and Bryson and their parents, subsidiaries; and affiliates, including all
predecessors or successors in interest, assigns, partners, agents, representatives, attorneys,
employ"s, shareholders, owners, officers, directors, subcontractors, suppliers, sureties, bonding
companies, elected officials. and .insurers ("City and Bryson Released parties") from. any and all
possible actions, causes of action, shits, accounts, contracts, controversies, agreements, promises,
damages. tights, duties, liens, claims, obligations, allegations; demands, lasses;, costs, expenses, and
liabilities, of any kind or nature whatsoever, at law or in equity, whether known or unknown, fixed or
contingent, as well as any express, implied, or equitable indernnity, interest, attorneys' fees, costs,
punitive damages, penalties, statutory penalties, claims based on fraud or concealment, and claims for
malicious prosecution, which the CH2M Releasing Parties have or may have against die City and
Bryson Released Parties arising out of or relating to the City -Bryson Agreement, the City-CH2M
Agreement, the project, the Litigation, or the City's Tender,
9. Representations and,WgIrranties: The Parties expressly represent and warrant that
they are the sole owner(s) of all claims, demands and causes of action. of any type, that are released herein
and that no other person or entity had or has any interest in the rmaum, referred to and released heron-, that
the signature of the person signing this Settlement Agreement on behalf of that Party has .the right and
authority to execute this Settlement Agreement on its behalf, that the Parties believe that they are acting
in the bestinterest of themselves in executing this Settlement Agreement; and that the Pasties are correctly
described in this Settlement Agreement.
10. Covenant Not to Sue: The Parties hereby covenant that they have not filed any
arbitrations, lawsuits, liens, or other legal proceedings other than the Litigation identified alcove. Each
Pasty ftirtlter agrees that it shall not cause to be filed, prosecuted, or pursued, and shall not assist others
in pursuing, any claim:, lawsuit, lien, arbitration, or other proceeding against any other Party on their own
behalf or in a representative capacity on behalf of any other person or entity with respect to the claims
released herein.
11. lull and Final C,ntnp_r_omise. This Settlement Agreement constitutes a- full and
final compromise and settlement of all claims and damages, whether known or unknown, related
to the City -Bryson Agreement with the City for construction and installation of the Blueln.Green
ozone disinfection system and the City-CH2M Agreement for engineering, construction oversight
and other services related to the installation of the BlueInGreeri ozone disinfection system.
12. Settlement Agreement Read and Felty Ap_reerlTo. The City, Bryson andCH2M
have reviewed the terms of this Agreement with their legal counsel and understand all of the terms
set forth in this agreement.
13. Corti etenc , and Autbority Authorityto Execute: The undersigned are legally empowered
to bind their organizations to this agreement,
14. Cott This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed ars original, but all of which together shall constitute
one and the same instrument. A facsimile or PDF signature :shall be deemed an original signature
for all purposes.
15. Entire Agreement: This Settlement Agreement represents the entire understanding
and agreement with respect to the subject matter hereof, and supersedes and replaces any prior
understanding, agreement or statement, whether written or oral, between the Parties regarding the disputes
identified above. The Patties agree that the Parties trade no
other promise or agreement except as expressed in this Settlement Agreement, and in executing this
Settlement Agreement, the Parties are not retying on any statement or representation of one another or
any of the other's agents regarding the specific matters in dispute. The Parties are relying on their own
judgment and are, represented by attorney(s) iii this matter. This Settlement Agreernent shall not be
admissible in any legal proceeding except a proceeding to enforce its terms. For any modification,
amendment or -waiver of this Settlement Agreement to be binding upon the Parties, it trust be
reduced to writing and signed by the party against whom it is to be enforced.
16. 47,,oyernine- Law: This Settlettrent Agreement shall be governed by and construed
under the haws of the State of Arkansas without regard to its conflicts of Jaw principles. This Settlement
Agreement shall, be construed as if all Parties jointly prepared this Settlement A€nectnent and any
uncertainty and ambiguity shall not be interpreted against any one Pang.
17. Severability:_ If one or more of the provisions of this Settlement Agreement are
held to be unenforceable under applicable law, such provisions shall be excluded from this Settlement
Agreement and the balance of the Settlement Agreement sha11 be interpreted as if such provisions were
so excluded and shall be enforceable in accordance with its remaining terms.
18. ;Other Nece�sat Stenst The Parties covenant and agree to perform such other and
further acts and/or steps as may be necessary to effectuate the provisions of this Agreement and to
execute or procure from third -parties such other and further documents as may be necessary to
accomplish the intentions expressed in this Settlement Agreement.
IN AGREEMENT WITH ALL THE TERMS AND CONDITIONS ABOVE. we sign
below:
CITY OF FA
ARKANSAS
10.1
Mayor
Date: 0
cH2m
By:
Date -
Attest: Attest:
SONDRA SMITH, City
low
y
R ; EAYE7TEVILLE8
JLB ON, C.
B
kA N-)
To N
By:
)STILT-3R4WYWq, President
- —NPreside-nt
Date: - -----
Attest:
City of Fayetteville, Arkansas - Budget Adjustment Form (Legistar)
Budget Year Division
/0rg2 WASTEWATER TREATMENT (730)
2017
Requestor: Cheryl Partain
Adjustment Number
BUDGET ADJUSTMENT DESCRIPTION / JUSTIFICATION:
A BA is needed in the Disinfection System Replacement (UV) Ozone project to cover the cost of a settlement with JL
Bryson for a delay claim made by JL Bryson. Cost savings from the completed Regional Park project is being moved to
cover this additional cost.
RESOLUTION/ORDINANCE
TOTAL
Account Number
5400.730.5800-5314.00
5400.730.5800-5801.00
5400.720.5600-5808.00
COUNCIL DATE: 2/21/2017
LEGISTAR FILE ID#: 2017-0065
tic i-Gwcv FeLL
2/6/2017 9:51 AM
Budget Director Date
TYPE:
DESCRIPTION:
GLDATE:
POSTED:
v.20161021
AT Account Name
EX Professional Services -
EX Fixed Assets - :
EX Water Line Improvements - Water Line Irr
C:\Users\Ismith\AppData\Roaming\L5\Temp\3a2e7d86-ec63-4c04-87ff-9bd34b91 b2ec 1 of 1
Project.Sub#
Increase / (Decrease)
Expense Revenue
Project
Sub
3,218
10008
1
466
10008
1
(3,684)
14015
2000
v.20161021
AT Account Name
EX Professional Services -
EX Fixed Assets - :
EX Water Line Improvements - Water Line Irr
C:\Users\Ismith\AppData\Roaming\L5\Temp\3a2e7d86-ec63-4c04-87ff-9bd34b91 b2ec 1 of 1