HomeMy WebLinkAbout23-131 Approving Agreement Integrated Water Services St Vrain Water Treatment Plant Project 12-13-2023RESOLUTION NO. 23-131
A RESOLUTION OF THE BOARD OFTRUSTLES OFTHE TOWN OF FIRESTONE,
COLORADO, APPROVING , AN AGREEMENTRETWEEN THE TOWN OF
FIRESTONE AND INTEGRATED WATER SERVICES, INC. PERTAINING TO THE
ST. VRAIN WATER TREATMENT PLANT PROJECT
WHEREAS, on September 23, 2020, Town of Firestone ("Town") and Integrated Water
Services, Inc. (IWS") entered into as D-525 -- Agreement Between Owner and Construction
Manager at Risk on the Basis of Cost -Plus (Part 213 --- Construction Phase) (the -Contract") for the
construction of a project known as the St. "'gain Water Treatment Plant ("project"); and
WHEREAS, IWS has substantially completed the"Work" tinder the Contract, with only
certain specified punch list items remaining to be perfortned to achieve final completion; and
WHEREAS, however, genuine issues have arisen between the parties regal -ding, arnong
other things, JWS's entitlement to an increase in the "Guaranteed Maximum Price," or GM P, under
the Contract for alleged changed and extra Work, and the Toven's entitlement to assess liquidated
darn ages under the Contract for alleged delay by IWS in completing the Project (tire "Dispute").
WHEREAS, tile Parties have engaged in confidential settlement discussions regarding the
Dispute, and have developed a draft agreement that would fully compromise and settle all of then -
outstanding differences, disputes and controversies between thern regarding tile Contract, the
Pr(ect, and the Work, and all claims arising out of or with respect to the Dispute, including,
without limitation, tile Town's claim under I's perforniance bond fur the Project, which is
attached hereto as Exbibit A, and
WHEREAS, the Town Board of Trustees has evaluated tile proposed settlement agreement
with IWS Pertaining to the Project, and finds that entering into the settlement agreement with IWS
is in the best interests of tile Town and its citizens.
NOW, THERETORE, BE ITRESOLVED IutE BOARD OFTRUSTDias 0F,rfIE
TOWN OF FIRESTONE, COLORADO:
Section 1. The Settlement Agreement between the "I -own of` Firestone and IWS is
approved in substantially the sante fill-in as the copy attached hereto and made a part of this
Resolution, and the Mayor is authorized to execute the Settlement Agreement on behalf of the
'(`caviar.
Section 1 'rhe Town Attorney and Town Manager are authorized to nep"otiate and
approve such other provisions to the Agreement or Amendments to the Agreement, as the rown
Attorney and Town Manager deterrinne are necessary or desirablefor the protection ofthe Town,
so long as such provisions or amendments do not significantly alter the material substance of the
transaction, and the Town Manager or designee are authorized to execute such arnendittent
Section 3. The 'Fown Manager or such person's designee is ftirther authorized to
approve, sign, execute and deliver any and all documents, including change orders on behalf of
the'Fown, and do all other things as may, be necessary for the Town to perform under the Contract
and Settlement Agreement, or to othetAvise effectuate the terms of the Settlement Agreement on
behalf of the'rown.
INTRODUCED, READ AND ADOPTED this l3th day of December, 2023.
TOAXN�qf, FIRt ��Y'10N I-,,. COLORADO
Drew Alan Peterson, Mayor
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Kristi BashorJown Clerk
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SETTLEMENTAND RELEASE AGIkEEMENT
"I'his Settlement and Release Agreenient (the Agreentent") is entered into by and between
tile TioNli of Firestone, Colorado (*`F(,)wn") and Integrated Water Services, Inc. (**lWS"'). The'Llwn
arid IWS may he individUally referred to as a **Party" and collectively ret'erred to as the **Parties."
AOn September 23, 2()20, the "town, as "Owner.* and IT'S, as -Construction
Manager at Risk," entered into a D-525 --Agmectnent Between Owner and Construction Manager
at Risk oil the Basis of Cost-1,111us (Part 2B -- Construction Phase) (tile -Contract") l"or tile
Construction of a project known as the St. Vrain Water Treatment Plant
13. IWS has substantially completed the WL-)rk" under the Conti -act, with only certain
specified punch list iterris (the -Final Punch List') remaining to be performed to achieve final
completion, A copy of tile 1'inal Punch I-ist is attached as Exhibit I
C. Gentline issues have arisen between the Pat -ties regarding, among other things,
lWYsentitlemetutoan increase in the (.itlaranteed Maximum Pricc, or (..i M R under the Contract
tbr alleged changed and extra Work. and the "I awn' entitlement to assess liquidated darilages
Under the Contract for alleged delay by IWS in completing tile project (the -Dispute').
D. 'rhe Parties have engaged in settlement discussions regarding the Dispute, and now
wish to fully compromise and settle all ofthCh- OUtStanding difilerences, disputes and controversies
between thern regarding the Contract, the Pro * o ject, and the %Vrk, and all clainis arising out of or
with respect to the Dispute, including, Without limitation, the Tbwn's claim tinder IWS's
perforttrance bond for the Pr(�ject.
fit consideration of the mutual covenants and obligations set forth in thisAgreernent, and
for other good and valuable consideration, the receipt and SUfficiency of which each of the Pat -ties
acknowledges. the Parties agree as set torah belovv.
Imm
I, SettlementTerms. SubJect to the ternis and conditions of this Agreerent, arld ill fall
and final settlement and satisfaction of all claims, demands, liabilities, losses, obligations.
promises, acts, omissions. damages. injuries, costs and CXpenSeS, Whether known or unknown.
suspected or unsuspected. contingent or fixed, that either Party rnay have against the other Party
based upon, related to, or that have arisen or maY have arisen out of tile ('ontract, tile project, the
NVork, and tile Dispute, the parties agree to the following terms:
A. Ad ju- n fior this �trncnt to Guaranteed k4gximum price. As part of consideratio
Agreement, the Town agrees to increase the GIP Linder the Contract front
S 17,997,129 to $1900,00() (the A4justed CiMP-),
i. (iM P Amendment. To properly reflect and memorialize the Adjusted GMR
within two weeks of tile f"I'Tective Date (defined below) IWS must execute
and deliver to theVown Change Order No. 2. which shall increase tile GMP
under Article 6. Section 6,01 A of' 1 -525 of the Contract Documents to
$19.1400,000.
B. Settlement Pr_avnient. The'lown agrees to pay to IWS. and IWS agr
ees to accept,
as final Settlement and full payment for the outstanding, unpaid balance of the
Contract Sure dUC under the Contract, which is based on the A(msted (Mll, for all
kvork performed by IWS,, including release of any retainage amounts, the total Sul"
of $2,746,154 (the "Settlement Payment").
i, To property memorialize the Settlement Payment, IWS Must first execute
and deliver to the'fown:
(a) As part ot'Change Order N(,,). I the following terms-,
1, removing the Final Punch List froni the description of the
Project and Work under the Contract and the Contract
DOCIAluentS,
2 amending Article 7. Construction Manager at Risk"s
Responsibilities. of D-800 (Supplementary Conditions) of
the Contract Documents to all a SC-7.06 — Concerning g
Subcontractors, Suppliers and Others — to read as ft'illows:
Add �i sqh, tra a 117.061' that reads as follows: M__gU
I'), Alotwithstanding dray other provision sel"Ibrih herein
to the conlrev-v, as ofIff'S's Substanthe'd CoInIVelion
qflhe Prqjecl oil oil tlbout 26, 2f)23, the 76nin
assumes resl)onsibifiyfi)r oil
or adminislering lilS' I)e�lbrinance q , WS,
conq)ensafion oblil,,ttfions under JIVS'ssubconiracts
and purchase orders with till S`ubcontraclors and
Szq)pliers f
fiw the loi�Jbrinance rah. alai 1wirls q 'flit,
3arriending Article 7. Construction Manager at Risk*s
Responsibilities, of D-800 (Supplementary Conditions) of
the Contract Documents to add a SC-7J7 — Contractor's
General Warranty and Guarantee -- to read as follows:
L) eLc t c 1! 7 in its entire
if"
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4, amending Article 17, Construction Manager at Risk's
Responsibilities. off-800 (Stipp lernentary Conditions) of
the Contract Docurnents to add a SC-14.07— net May
Detective Work — to read as fbllows:
Adda sulA)Hera grt jIt 14.07.1--beat reads as filllov�s: a_ —
E'onvithsontling anv other jnix)vision set,fin-th herein
to /he conlral-II., as Of Iff"S's St"Ibstanch o ("onilVetion of Ilit,
Iii-oit,v on oi- about Mav 26, 2023, Hit, finvii assianes
re's,I)onsibility,fiw correclion or rtwiowil and relVacement of
5amending Article 15, ConstrLiCtion Manager at Risk*s
Responsibilities, of D-80(i (Supplementary Conditions) of
the Contract Documents to add as SC-15,05 — Final
Inspection — to read as follows-
L)c I eto- P aLi gL, i j 5.05 in its ClItirem
6, amending Article 15, Constrtjcti(.m Manager at Risk's
Responsibilities, of D-800 (Supplementary- Conditions) of
the Contract Documents to add a "SG ISM — Correction
period — to read as follows:
Delete Paraty-Liph 15.08 in its entitle
(b) Within two weeks of the Eff ctive [)are, (defined below), a I'layment
Application No. 25. effectively covering the total Settlement
Payment and which shall constitute the final Application for
payment under the Contract.
L rAyni 1)� 25. IWS Patti-ther acknowledges and
agrees that the Settlement Payment fully and accurately
covers all IWS's remaining accounts payable on the Prt>jeet
in the ante Unts ,rated in the Accounts payable Register
attached to this Agreentent as F it ib 2 together with the
xh ,
cost of' all work pert'ormcd under the Contract, retainage
aniOUnts, and all FIC'O and delay claim artiounts, and that tile
Town*s remittance of the Settlement Payment to I and to
IWS's subcontractors and suppliers in accordance with this
Agreement shelf constitute payntent of Application lor
payment N o. 2 5.
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(C) The Town shall approve Change Order No. 2 and Application for
Payment No. 1.5 no later than two weeks after it receives them front
MS.
C. C Lornj)letion of" inal Punch List.'The Town agrees to assume full responsibility for
Completing the Final Punch List and releases IWS firorn any further responsibility
related to the Final Punch List. Any costs incurred by the Town in completing the
Final Punch list will be paid by the 'Fown and not offsict against or deducted front
the Settlement Payment.
D. Akkylarrantv L brigations, The '['own agrees to assurne fill] responsibility for
_c— -
administering and enl�brcfiat g any warranty obligations under IWS's contracts with
subcontractors and vendors on tile Project and releases IT'S front any further
warranty oblioati(,ins under tile Contract Documents. Any costs incurred by the
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Town in connection with add-ninisterine and enforcinf;, warranties or tile
perf'ormance of any N-varranty work will be paid by thew `To wn and not offset against
or deducted firorn the Settlement Payment.
L`Delivel-V of Settletil t -tit. The Town will pay the Settlement Payment as
follows:
is Within nine weeks of the IowWs approval of Change Order No. 2 and
approval of Pay Application No. 25, the"Fown will arrange to directly pay.
eat Ofthe Settlement Payment. the Accounts Payable Register, IWS �al- r s , cc
to cooperate with the Town to facilitate the '17own in pertbrnling this
payment obligation.
iL Thc1r),wrt will obtain fien waiver releases in tlivor of theTown, JWS, and
Everest froni cacti subcontractor and vendor that provided labor, materials.
or equipment to the Project, as well as releases of any verified statements of
clairn previously submitted by any such subon ctractors or vendors (with tile
exception of tile verified statet'nent of clairn submitted by CIE Power
Systems Inc.. which is addressed separately below). The ]"own xvill
complete its obligations under this Section 1.1'Ji within a commercially
reasonable aniount offitue,
(a) In the event that any subcontractor or vendor, in exchange for
providing the required releases tinder Section I.E.ii above, demands
payment in all arnount -reater than the amount for that subcontractor
or vendor as set fiwth in 11"Ahibit 2, theTown will notif'chile consult
Nvith I to pay or arrange for payment ol'any undisputed amounts.
and obtain IIA'S's consent to any payment in an aniount greater than
the artiount sLt forth in Exhibit 2. which consent will not Inc
unreasonably withhel& In such case, 1"Ahibit 2 shall be replaced and
superseded to its entirety with a new EXhibit 2 to reflect the new
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arnounts, which shall be attached hereto and incorporated into this
Agreement.
(b) The Town will provide IWS with copies of the required releases
under Section 1.1".6 above within a commercially reasonable these;
after receiving thern.
(C) After completing all required payments pursuant to Section
above. tile "['own shall promptly begin work on the Final Punch List.
iii. No later than 14 days from the date the Town furnishes all lien waivers and
verified statement of claini releases froin all subcontract(irs arid suppliers to
IWS pursuant to Section I.F.ii above. IWS must execute arid deliver to the
Town to Consent Of SUrety and a Lien Waiver release.
is. The date of theTown's receipt of I WS' Consent cif Surety and a I.Jen Waiver
release as provided in Section Lf"Aii above shall be the date fixed and
advertised for final settlement of the Contract (-Final Settlement Date-).
Oil the Final Settlement Date, the Town will pay the remainder of the
Settlement Payment, if any, to IWS via electronic binds transfer, provided
that such arriount, is not subject to any verified statement of claims.
to If, at any point prior to the Firial Settlement Date. the balance of tile
Settlement Paynrent due IWS becomes encumbered purswant to
CRS� § 38-26-107, then the Town shall release such amount and
pay to TWS as provided in and in accordance with CKS. § 38-26-
107.
vi. [Jpon coarpletion ofthe Final Punch I-ist and payment to all subcontractors
l'or perl'ontring the I"inal Punch List work. theTown will obtain lien wavier
releases in fiavor of the *Fown, IWS, end Everest, firom each subcontractor
and vendor that provided labor. materials, or equipment in completing the
Final Princh List. The Town will provide IWS with copies of the
aforementioned releases within a commercially reasonable firric after
receivino thern.
t,
lti "8'sSiarquent, c)t"Subcontilicts and Purchase Orders. IWS will assign its subcontracts
and purchase orders for the Pro.ject to the Town as and when reasonably requested
I y, the Town to fiacilitate the R)Nvn's perbmnance of its responsibilities under
Sections LC, 1.1), and LF of this Agreement.
G zc, L"'. P( owe -IL �,stems Inc. Verified Statement of Claim. Within as commercially
reasonable time after the Lflective Date. IWS intends to obtain and submit to the
Town as bond under Colo. Rev. Star, section 38-26-108 to release the January 11,
2023 verified statement ot'claini submitted by CEI llwver Systerns Inc.
The Town agrees to cooperate with JWS in defending any claims by CFTS against
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I\VS related to the Pr(cct, including providing access to relevant documents.
infi:)rrnation. and witnesses within the Totvii's possession. custody, or control,
H. Termination ofContract. IWS and theTown each agree the Contract shall terminate
and shall be damned null and void upon IWS*s receipt of the Settlement Payment.
and neither Party shall have any further rights or legal obligations thereunder.
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1, No Additional (,'onsideration for Counterclaims. The TOwn and IWS [lave
considered all their potential clanits, counterclaims, or causes of actions arising
frorn, or relatino to. the facts and circ urn stances relating to the Dispute, and any and
all defenses. whether statutory or based in the connilon lacy, applicable to any such
claims. counterclaims or caUSCS Of aCtiCal, in deterrinnint, the SettlernentTernis arid
agree that neither Party shall receive additional payment regarding the Dispute or
ally other terns under any other contract or agreement.
I Attortlevs' Fees and Costs, The Parties acknowledge and agree that they are solely
responsible for paving their own any attorneys' fees and costs incurred in
connection with the Dispute. including, but not limited to, attorneys' t'ces and costs
incurred in connection vNtith the negotiation of this Agreement.
2. Mutual Release. In consideration of, and effective upon the mutual execution of
this ?Agreement, and completion of the Settlement "Ferms. each Party hereby forevel% fully and
finally releases, relieves and discharges the other Party firorn and against firorn all known and
unknown charges. complaints. clainis. grievances, liabilities, obligations, promises, agreernents,
controversies. datriages, actions. causes of' action. suits, rights, demands, costs. losses. debts,
penalties, fees. wages, expenscs (including attorneys* fees and costs actually incurred), and
punitive darn ages, of ally nature whatsoever. vshether at law or in equity. known or unknown,
which they have. or may have had, against the Other Party, whether or not apparent or yet to be
discovereci, or which may hereafter devclop, for any acts or omissions related to or arising front of
the Dispute, including any claims tinder the performance and payment bonds issued by Everest in
connection Nvith the Protrect (the -Released Clainis'). excluding only the performance arid
ent'ra-cernent of the express obligations tinder this Agreement, This Agreement resolves any claim
for reliefthat has or could have been alleged by either Party against the other Party relating to the
Contract, the Pro characterized, including, without
jem the Work, or the Dispute, tit) matter hci�w chat
limitation, compensatory damages, damages fbr breach of contract, bad faith daniages., reliance
damages. liquidated darnagges, punitive dartiages, costs, and attorneys* fees related to or arising
frorn the Dispute.
3� Rcarqsjentations and %Vqgratitte-s-
A, No On S LaLiLdin x L no vrl Future Churns or Caof uses Action. Each flatly
&— o-Sy�
represents and w'arrants that it has not filed with ally governmental agency or court
any type of` action or report against the other Party. and currently knows of' no
existing act or cnossion by the other Party that nlay constitute a clairn or liability
excluded from the Released Cl finis set out in Section 2. above.
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B. No Assi Transfer ot'Clairns. U'lach Party represents and warrants that it is
tile rigghtful owner of and has not encumbered, assigned, or transferred, nor will it
in the future attempt to enctimber, assign, or transter, the Released Claillis,
demands, oblivations or causes of action referred to herein.
C. Parties* Authority to Settle. l'--'ach Party represents and warrants that it has full
authority to enter into. deliver. and perform under this Agreement, arid that all acts
arid actions have been taken to grant such authority, and that no third -party consent,
which has not already been obtained, is required.
D' i �,natoriqeat re it tc 1 ctat ; 3 re: era r t. Each signatory to this Agreement
represents and warrants that he or she is authorized to CXCCULC this Agreeluelll Oil
behalf of the Party fior which lie or site executed this Agreement.
E No Violation of0roanizational Documents. Covenants. or Restrictions. Each Partv
warrants and represents tile Party' s execution ofthis, Agreement is not in violation
of ariv charter, organizational docurrient, articles of organization, certificate of
organization, operating agreement, by-laws, articles of incorporation. certificate of
incotporation., covenants, or other restrictions placed re cut there by their respective
entities.
1,'The Parties represent that they will not at any time aftere ecution of this Agreement
commence any action, lawsuit, or other legal proceeding against each other relating
to or arising out ofthe Released Clairris.
4, Denial (,-,)f Liability, The Pat -ties acknowledge that this Agreement represents a
compromise and final settlement ot'disputed claints.The Parties further understand and agree that
the performance of tire, c(:)nditions arid provisions cif` this Agreentent, including the payment and
acceptance of the Settlement l-ayntent, may not be construed as an admission of liability on the
part ofeither Party. with all liability being expressly denied.
5. Non-DiTaraggfljgjA. The Parties agree that. <unless required to do so by legal
process. they arid their respective elected arid appointed officials, officers, and directors kvill not
make any disparaging staternents or representatiows, either directly or indircctl)t, whether orally or
Party or any person or entity affiliated with the other Party. For purposes
in writing about the other
of' this paragraph, a disparaging statement or representation is any communication which. it'
publicized to another, would cause tile recipient of the communication to question the business
condition, integrity, competence, o clod character. or product quality of the person or entity to Whorn
eo Y
the COTTIMUnication relates. This non-disparagenient Provision is material to thils Ain-cernent arid
its violation shall constitute a breach of this Agreement.
6. Non -Reliance. The PartiCS ZISSUrne all risk that the facts, law, or darnages nlay be
i,ir become~ different than tile facts, law. or damages presently believed by the parties. Further, each
Party disclaims all reliance upon, and 1-,)rospectively waives, any fralld, misrepresentation,
11CIffigence, or other clairri based upon information supplied by the other party.
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T Agr�Lqnicarts js� _f,.coall 1 �Bind�hv,� The Parties intend this Agreement to be legally
binding, upon and shall it to the benefit of each of thern arid their respective parents,
subsidiaries, affiliates, Predecessors. successors, and assigns/successors. assigns, CXeCUtors,
administrators, heirs, and estates:
& Integration. 'Fhis Agreement constitutes the entire Agreement ofthe Parties and it
complete merger of prior negotiations and agreements, This Agreement may riot be modified
except in a writing signed by the Parties.
9, Knowine, Vqivcr. In entering into this Agreement, each party acknowledges that. -
A. It has had the opportunity to seek and rely upon the legal advice of attorneys of
its o,.kri choosing.
B, It fully understands and voluntarily accepts the Agreement's tenets based on the
consideration set forth in this Agreernent and not on an), other promises or
1.
representations by the other Party or any attorney or other agent or representative
of the other Party.
C. fit deciding to sign it did not rely and has not relied on any oral oi-
written representation or itaterrient by the other Party or any attorney, or other agent
or representative of the other Party, including but not limited to any representation
or statement about the subject matter, basis, or effect of this Agreement.
10. Govcrnj!j&.tAAThis Agreement is governed in all respects, including its validity
interpretation, and effect, by the laws of the State ofColorado.
I I Waiver. No terni or condition of this Agreement will be dectiled to have been
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waived, nor will t—here tic art estoppel against the enforcement of any provision of this Agreement.
except by a writing signed by the Party to be charged with the waiver or estoppel.
12. Severab it Uach provision of this Agreenient Must be interpreted so as to be
ellective and valid under applicable law to the fullest extent possible, but ifany provision ofthis
Agreement. standing ah,:wne or in connection with another, is held to be invalid, illegal, or
Linent'orceable. the remaining provisions will not be atTected and the Agrectrient will be construed
and interpreted as it'such invalid, illegal§ or unenUorceable Provision had never been included so
as to effectuate the purpose ofthis Agreement and the intention of the parties.
13. Authors it . The Parties acknowledge that this Agreement is the result of
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negotiations anG_O_illt authorship and agree that it -will not be construed or interpreted against either
party on the grounds of sole or primary authorship. The Parties Further acknovviedoe that each has
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had the full opportunity to consult with legal counsel and any other advisors ol'their choice in
electing to enter into this Agreement,
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14. Count qlggaqq� This Agreement may be executLd in multiple counterparts, each of
which will be deer sect an original and all ot'which will constitute one and the same document.
Signed counterparts niav be exchanged via email.
1.5. [Afectiveness Ll'AAareement. "I'his Agreement will be effective on tile date of the
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last signature below (the "I"Iffective Date").
THFUNDERSIGNED HAVE CAREFULLY READ THE FOREGOINGAGREEMENT,
UNDERSTAND IT, AND SIGN IT VOLUNTARILY.
'roWN OF FIRESTONI",
SiOtled:
Printed Name:
Title: ft
a 0 r
Y-
A7-
Date: 13 11 1`0
INTEGRA]"'ED W"A 1'1.'-,R SERVICES, INC.
Si tied:
gn
Printed Narne: Alexander J, Buehler
Titl., President & CEO
Date. 12/12/2023
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