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Home My WebLink AboutC2018-672 - 10/30/2018 - Approved SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AND RELEASE AGREEMENT ("Agreement") is made and entered into by and between SpawGlass Civil Construction, Inc. ("SpawGlass"), Harvey-Cleary Builders, Inc. ("HCB"), FDL-CC, LLC ("FDL-CC") and the City of Corpus Christi, Texas ("City") (SpawGlass, HCB, FDL-CC and the City are each a"Party" and are collectively referred to as the "Parties"). WHEREAS, the City owns the Corpus Christi International Airport ("CCIA") covering approximately 2,347 acres located at the intersection of Highway 44 and International Drive, in Corpus Christi, Nueces County, Texas, including all runways and taxiways and certain other improvements located thereon; WHEREAS, on April 14, 2013, the City and FDL-CC, LLC entered into a ground lease under which the City leased approximately 9.21 acres of property to FDL-CC (the "FDL-CC Property"); WHEREAS, FDL-CC entered into a construction agreement with HCB to construct hangar and office facilities on the FDL-CC Property for use by the U.S. Coast Guard(the"Hangar Facility"); WHEREAS, on or about June 15, 2017, the Hangar Facility's fire suppression system accidentally malfunctioned (the "Accident"); WHEREAS,as a result of the Accident,approximately 268,000 gallons of water and 2,000 gallons of Solberg Artic 3.3 SP AR-AFFF foam concentrate discharged on to the subgrade of the City's adjacent Taxiway Kilo construction project being constructed by SpawGlass under contract with the City (the "Taxiway Kilo Project"); WHEREAS, the Taxiway Kilo Project was delayed while the contaminated subgrade could be removed, disposed of, regraded and replaced with new fill dirt and prepped for the final concrete paving; WHEREAS, on or about June 28, 2017, the City gave written notice to FDL-CC that the Taxiway Kilo Project had been disrupted and damaged by the Accident; WHEREAS, as a result of the Accident,the City suffered delays and remediation costs on the Taxiway Kilo Project, and has paid SpawGlass additional sums of money beyond what the contract provided to complete the Taxiway Kilo Project; WHEREAS, SpawGlass has now completed construction of the Taxiway Kilo Project and has asserted a claim for delay costs, equipment costs,material and labor costs,overhead costs, and other related costs connected to the Accident ("SpawGlass Claim"); WHEREAS,the City has asserted a claim for its costs incurred resulting from the Accident ("City Claim"); and C2018-672 10/30/18 Ord. a3158tv Page 1 of 3 SpawGlass Civil Construction Inc, S NJ 1\J F ED 4843-5398-2327.v3 . , • WHEREAS, the Parties desire to avoid further risks and expenses arising out of the Accident, and have agreed to resolve all claims and potential claims between them that, directly or indirectly, arise from or relate in any way to the Accident, the SpawGlass Claim, or the City Claim. NOW THEREFORE, in consideration of the foregoing premises, which are deemed part of this Agreement, and of the mutual covenants and agreements set forth below,which the Parties agree are good and valuable consideration, receipt and sufficiency of which are acknowledged by each, the Parties agree as follows: 1. HCB agrees to pay the City the total sum of SEVEN HUNDRED TWENTY-FIVE THOUSAND EIGHT HUNDRED AND SEVENTY-SIX DOLLARS AND 88/100 ($725,876.88). Payment shall be made by HCB to the City by cashier's check or wire transfer (account to be designated by City) within five (5) business days following execution of this Agreement by all Parties. 2. Upon receipt of full payment from HCB (as set out above), the City will pay SpawGlass the total sum of THREE HUNDRED TWELVE THOUSAND FIVE HUNDRED NO/100 DOLLARS ($312,500.00). This payment shall be made by the City to SpawGlass within ten(10) business days following receipt of full payment from HCB. 3. In consideration of the settlement payments referenced herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Party hereby releases, acquits, and forever discharges the other Parties and their respective agents, subcontractors, servants, directors, officers, shareholders, partners, principals, employees, affiliated entities,attorneys,representatives, successors and assigns of and from any and all claims, controversies, actions,demands,causes of action,or liability of every kind and description,known or unknown, at law or in equity, which it had in the past, now has, or may hereafter have against any other Party arising from or in connection with the Accident,the SpawGlass Claim, or the City Claim. 4. The Parties agree that no Party is admitting any liability or wrongdoing whatsoever by reason of the matters mentioned herein, liability therefore being specifically denied, and that this Agreement is being made purely upon a compromise basis so that the Parties might avoid the substantial costs, expenses and uncertainties associated with litigation. This Agreement does not constitute and may not be used or referred to in any proceeding or in any context as an admission or evidence of liability or wrongdoing on the part of any Party. 5. Each Party agrees and acknowledges that no representation, promise, inducement, or agreement not herein expressed has been made to it or to any of its representatives, that this Agreement supersedes any prior agreement, understandings or representations by or among the Parties, written or oral, that may have related in any way to the subject matter of this Agreement, and that this Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. Each of the Paragraphs of this Agreement is contractual in nature and not a mere recital. 6. Each Party warrants and represents to the others that it has not assigned, sold, transferred or otherwise disposed of any rights that are released herein. Page 2 of 3 4843-5398-2327.v3 7. Each natural person signing this Agreement warrants and represents by executing this Agreement that he or she been authorized by the entity(ies) on whose behalf he or she is signing this Agreement to execute this Agreement on its behalf,and to bind such Party to this Agreement. 8. The Parties and their counsel have reviewed this Agreement and, accordingly, agree that any rules of construction that would require interpretation of any ambiguities in this Agreement against the drafter shall not be employed in interpretation of this Agreement, and are hereby expressly waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effectuate the intentions of the Parties. 9. This Agreement may be executed in counterparts, each of which shall be deemed an original. Such counterparts, when taken together, shall constitute one Agreement. THE UNDERSIGNED HAS READ THE FOREGOING AGREEMENT AND FULLY UNDERSTANDS IT. SpawGlass Civil Construction,Inc. By: AWw„ At- kn-s Title: Pre.,d-„t- Date: 10/15/2018 Harvey Cleary Builders, Inc. By: Title: Date: FDL-CC,LLC By: Title: Date: City of Corpus Christi,Texas By: Title: Date: Page 3 of 3 41313-5396.2327.v3 7. Each natural person signing this Agreement warrants and represents by executing this Agreement that he or she been authorized by the entity(ies) on whose behalf he or she is signing this Agreement to execute this Agreement on its behalf,and to bind such Party to this Agreement. 8. The Parties and their counsel have reviewed this Agreement and, accordingly, agree that any rules of construction that would require interpretation of any ambiguities in this Agreement against the drafter shall not be employed in interpretation of this Agreement, and are hereby expressly waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effectuate the intentions of the Parties. 9. This Agreement may be executed in counterparts, each of which shall be deemed an original. Such counterparts, when taken together, shall constitute one Agreement. THE UNDERSIGNED HAS READ THE FOREGOING AGREEMENT AND FULLY UNDERSTANDS IT. SpawGlass Civil Construction,Inc. By: Title: Date: Harvey Cleary Builders,Inc. By: L - Title:Vice President Date: 10-15-18 FDL-CC,LLC By: Title: Claiborne Williams Date: 10/16/18 City of Corpus Christi,Texas By: Title: Date: Page 3 of 3 4843-5398-2327.v3 7. Each natural person signing this Agreement warrants and represents by executing this Agreement that he or she been authorized by the entity(ies) on whose behalf he or she is signing this Agreement to execute this Agreement on its behalf, and to bind such Party to this Agreement. 8. The Parties and their counsel have reviewed this Agreement and, accordingly, agree that any rules of construction that would require interpretation of any ambiguities in this Agreement against the drafter shall not be employed in interpretation of this Agreement, and are hereby expressly waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effectuate the intentions of the Parties. 9. This Agreement may be executed in counterparts, each of which shall be deemed an original. Such counterparts, when taken together, shall constitute one Agreement. THE UNDERSIGNED HAS READ THE FOREGOING AGREEMENT AND FULLY UNDERSTANDS IT. SpawGlass Civil Construction, Inc. By: Title: Date: Harvey Cleary Builders, Inc. By: Title: Date: FDL-CC, LLC By: Title: Date: ' Vd . 0315% �........................MU I flUl sY MOCK......11213.(14 City of C a rpus C ris /Aias /d0/7 By: /i,///„ .a��i RfTAF Title: rdfW/1 (14 Lir(d ATTEST: E Date: !0�8� !� RE ECCA HUERTA CITY SECRETARY Page 3 of 3 4843-5398-2327.v3 EXHIBIT A SUMMARY OF TAXIWAY K FIRE SUPPRESSANT INCIDENT EXPENDITURES Contractor Amount Payment Spaw Glass Civil Construction Invoice # 1 $ 366,356.19 Airport/City Remediation Work Performed Spaw Glass Civil Construction Invoice #2 $ 312,500.00 Pending Delay Claim agreement Garver USA Inv # 16181176-7FSI $ 4,512.35 Inv # 16181176-8FSI $ 3,055.40 Inv # 16181176-9FSI $ 5,897.30 Inv # 16181176-10FSI $ 5,101.00 Inv # 16181176-11 FSI $ 5,586.05 Inv # 16181176-12FSI $ 3,176.00 Inv # 16181176-13FSI $ 2,262.95 Inv # 16181176-14FSI $ 515.50 Inv # 16181176-15FSI $ 1,003.68 Inv # 16181176-16FSI $ 3,379.75 $ 34,489.98 Airport/City LNV Inv # 25057 $ 12,530.71 Airport/City $ 47,020.69 TOTAL $ 725,876.88