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HomeMy WebLinkAbout16 - C.W. Driver - Claims Settlement - Supplemental Agreement"RECEIVED AFTER AGENDA PRINTED:" 1,1CM #tlo FtBRVARy 2512o19 SETTLEMENT AGREEMENT AND GENERAL RELEASE WITH C.W. DRIVER, INC. THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE ( "Settlement Agreement "), is entered into as of this 25 day of February, 2014 ( "Effective Date "), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and C.W. DRIVER, INC., a California Corporation whose address is 15615 Alton Parkway, Suite 150, Irvine, California 92618 ( "CM "), and is made with reference to the following: RECITALS: A. On June 7, 2010, City and CM entered into a Construction Manager at Risk Contract ( "CM Contract ") for the Newport Beach Civic Center and Park Project ( "Project "). B. On September 3, 2010, City and CM entered into Amendment No. One to the CM Contract ( "Amendment No. One "), as contemplated in the CM Contract, Article Six, Section 6.1.9(e), to add the Design Build 450 stall parking garage and to increase the Guaranteed Maximum Price ( "GMP "). C. On February 22, 2011, City and CM entered into Amendment No. Two to the CM Contract ( "Amendment No. Two ") for additional services not included in the CM Contract or Amendment No. One, to add the construction of the City Hall Office Building, Central Library Expansion, Parks and miscellaneous items of work for the Newport Beach Civic Center; to increase the GMP by $82,374,384 for a total GMP of $104,306,931; and to update the insurance provisions consistent with the City's election to implement an Owner Controlled Insurance Program ( "OCIP "). D. On November 29, 2011, City and CM entered into Amendment No. Three to the CM Contract ( "Amendment No. Three "), to reflect the City's option to construct the San Miguel Pedestrian Bridge as part of Phase Three as originally contemplated in the CM Contract, Article One, Section 1.3, and increase the GMP to $105,306,931 utilizing $1,000,000 of the Owner's Contingency along with $1,000,000 of the Construction Contingency to fund the costs of construction. E. On April 24, 2012, City and CM entered into Amendment No. Four to the CM Contract ( "Amendment No. Four") for additional services not included in the CM Contract or prior amendments to add the fabrication and installation of Project signing and the installation of dry utilities modifications to increase the GMP by $476,281 for a total GMP of $105,783,212. F. On October 23, 2012, City and CM entered into Amendment No. Five to the CM Contract ( "Amendment No. Five ") for additional services not included in the CM Contract or prior amendments for Library Clerestory repair to increase the GMP by $720,913 for a total GMP of $106,504,125. G. On June 11 2013 the City Council authorized the City Manager to negotiate and execute change orders in the not -to- exceed amount of $6,500,000. Additionally, CM expended $65,005 to repair storm damage from the winter of 2010/11. The cost to perform the work was reimbursed by FEMA and the funds were added to the contingency which increased the maximum change order amount to $6,565,005. The City Manager has approved $6,562,627 in change orders which increases the total GMP to $113,066,752. H.On October 9, 2013 City and CM entered in Amendment No. Six to the CM Contract ( "Amendment No. Six ") for additional services not included in the CM Contract, or prior amendments for extended general conditions and to increase the GMP by $1,400,000 for a total GMP of $114,466,752'' 7,9,15. I. CM has submitted a claim for $8,203,965 for, among other things, alleged extra work performed by CM's contractors, subcontractors and suppliers, on the Project, as well as delays which impacted CM's contractors, subcontractors, and suppliers on the Project ( "Claims "). A detailed list of the Claims is set forth in Exhibit A hereto and incorporated herein by this reference. G;J. As part of the Project City is currently holding a retention of $4,548,429.85 ( "Project Retention ") pending the release of all stop notices and claims. W-. K. For purposes of avoiding legal proceedings related to the Claims, City and CM desire to enter into this Settlement Agreement for additional services not included in the CM Contract, or prior amendments, to provide a release of all claims associated in any way with the Project, and to increase the GMP by $2,399,430 ( "Claims Amount ") for a total GMP of $116,866,182440;303,555. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SCOPE OF WORK City and CM acknowledge that the above Recitals are true and correct and are hereby incorporated herein by reference. Article Two of the CM Contract shall be supplemented to include this Settlement Agreement. 2. GUARANTEED MAXIMUM PRICE Section 6.1.1 of the CM Contract shall be amended to increase the GMP to One Hundred and SixteenTen Million EightT4fee Hundred Sixty-SixT-hfee Thousand OneF4ve Hundred Eighty- Two€i€ty Five Dollars and 00/100 ($116,866,18241 -0303,555) C.W. DRIVER, INC. Page 2 ( "Final Contract Amount "), an increase in the GMP by the Claims Amount of Two Million Three Hundred Ninety -Nine Thousand Four Hundred Thirty Dollars and No /100 ($2,399,430)., within three (3) business —day, days , exeeut;o of thisge#leR;GRt n r o o . h„ 'he City and GM The Final Completion Contract Date shall be the Effective Date of this Settlement Agreement 3. FINAL PAYMENT & RELEASE A. Notwithstanding the potential additional future work provided in Subsection 3(F), the GMP provided in this Settlement Agreement shall be the final payment by City for the Project and shall satisfy all past, current and future claims for compensation, damages, costs, expense, interest or demand for any type of payment by CM, its subcontractors, suppliers, as well as any other person or entity that relates in any way to the Claims, CM Contract, as amended, and /or the Project. The City authorizes its City Manager to execute all assignment, waiver and other agreements reasonably necessary to close out this Project, including, but not limited to, the assignment agreement for the installation of the NaturalPAVE material attached hereto as Exhibit B, and incorporated herein by reference. R CAA for thamcalvac nnri all of Chair nrarlanacenm mirraccnrc necinnc representatives, attorneys, employees, officers, subcontractors, suppliers or agents (collectively, "CM "), do hereby fully and forever release and discharge City and all of its predecessors, successors, assigns, representatives, attorneys, employees, officers, contractors, subcontractors, suppliers or agents of and from any and all actions, claims, demands, rights, damages, costs, expenses, attorneys fees, expert fees, consultant fees, other fees, interest, and compensation of any nature whatsoever, which CM has or may hereafter accrue, including without limitation, any and all known and unknown, foreseen and unforeseen claims, damage and injury, relating to, or in any way, directly or indirectly, involving or arising out of any facts or circumstances related in any way to the Claims, CM Contract, as amended, and /or the Project. C. CM shall cause all stop notices and other claims filed against the Project to be released within fifteen (15) calendar days of the signing of this Settlement Agreement. CM and the City acknowledge and agree that money that is the subject of stop notice claims filed with the City that relate in any way to the Claims, CM Contract, as amended, and /or the Project shall be released in accordance with California law and after lawsuits filed by any contractor, subcontractor, supplier, or other person or entity, if any, that relates in any way to the Claims, CM Contract, as amended, and /or the Project have been dismissed with prejudice._ Immediately upon CM's release, or securing the release, of all stop notice claims, the Citv shall release to CM the Project Retention and Claims Amount which is in the sum of Six Million, Nine Hundred Forty- Seven Thousand, Eight Hundred Fifty -Nine Dollars and 85/100 ($6,947,859.85). D. CM shall defend, indemnify, release and hold harmless the City from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses C.W. DRIVER, INC. Page 3 (including without limitation, attorneys' fees, disbursements and court costs) of every kind and nature brought by any contractor, subcontractor, supplier, stop notice claimant, or employee, person, entity, agent, and/ or success or assign thereof, which may arise from or in any manner relate (directly or indirectly) to the Claims, CM Contract, as amended, and /or the Project. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, or proceeding whether incurred by CM, the City, and /or the parties initiating or bringing such proceeding. Notwithstanding the foregoing, in no event do the defense and indemnity obligations set forth herein extend to claims or actions brought against the City by Soil Stabilization Products Company, Inc. ("SSPCo ") or Blacktop Paving, Inc. if such actions are brought by SSPCo or Blacktop Paving, Inc. in response to an action brought against SSPCo or Blacktop Paving, Inc. by the City. E. It is the intention and understanding of CM, in executing this Settlement Agreement that it shall be effective as a full and final accord and satisfaction and compromise and release, of each and every settled or released matter related to the Claims, the CM Contract, as amended, and /or the Project. In furtherance of this intention, CM acknowledges that it is familiar with California Civil Code Section 1542 which provides as follows: "A general release does not extend to claims which the creditor does not know or suspects to exist in his favor at the time of executing the release, which, if known by him, must have materially affected his settlement with the debtor." CM hereby expressly waives and /or relinquishes any right or benefit which it has, or might have, under California Civil Code Section 1542 and all other similar provisions of law of other jurisdictions to the fullest extent allowed by law. In connection with such compromise, waiver and relinquishment, CM acknowledges that it is aware that it may hereafter discover facts in addition to or different from those which it may now know or believe to be true with respect to the Claims, the CM Contract, as amended, and /or the Project and this Settlement Agreement, but that, except as is otherwise provided herein, it is CM's intention hereby to fully, finally and forever settle and release all matters, disputes and differences, known or unknown, suspected or unsuspected, which do now exist, may exist, or heretofore have existed, and that in furtherance of such intention, the release actually given herein shall be and remain in effect as a full and complete general release, notwithstanding the discovery or existence of any such additional or different facts. F. As part of this Settlement Agreement, the parties agree as follows: L The City accepts all of the work installed by CM as identified in the amended CM Contract, including all items identified on the Project's punch list, and accepts the Project as timely completed and delivered to the City by CM; C.W. DRIVER, INC. Page 4 ii. CM is not responsible for any on -going California Building Code issues (e.g., building roof trellis /canopy approval) or correctional work that is related to the final certificate of occupancy; ill. Following execution of this Settlement Agreement, if the City requests, in writing, any additional services related to building or system maintenance investigation /issues /training, the costs of said requests shall be reimbursed to CM on an hourly basis in accordance with CM's current 2014 hourly rate schedule and pursuant to a valid contract; iv. Following execution of this Settlement Agreement, if the City requests, in writing, any additional services related to mechanical, electrical, plumbing, building controls or security systems, the costs for said requests shall be reimbursed to CM on an hourly basis in accordance with CM's current 2014 hourly rate schedule and related subcontractor's current 2014 hourly rate schedule and pursuant to a valid contract; V. Following execution of this Settlement Agreement, if the City requests, in writing, any additional services related to schedule analysis, documentation research, review and assembly as related to the City pursuing potential claims against the design professionals and consultants" as that performed services on the Project for the City, the costs for said requests shall be reimbursed to CM on an hourly basis in accordance with CM's current 2014 hourly rate schedule and pursuant to a valid contract; and vi. All current CM Contract warranties, subcontract warranties and manufacturers warranties shall remain in full force and effect in accordance with the CM Contract. 4. RESERVEDASSIGNMENT OF RIGHTS C.W. DRIVER, INC. Page 5 ._. OWN 7=20Mr. ME - ORION Met _ - W"M "IN' 16011111 M 5 C.W. DRIVER, INC. Page 5 ._. OWN 7=20Mr. ME - ORION _ - C.W. DRIVER, INC. Page 5 0. 5. CONSTRUCTION This Settlement Agreement shall not be construed against the party preparing it, but shall be construed as if all parties jointly prepared this Settlement Agreement. Any uncertainty and ambiguity shall not be interpreted against any one party. This Settlement Agreement is to be performed in California and it is to be interpreted, enforced, and governed by and under the laws of the State of California. Language in all parts of this Settlement Agreement shall be in all cases construed as a whole according to its very meaning. 6. ATTORNEYS'FEES Should suit be brought to enforce or interpret any part of this Settlement Agreement or the CM Contract, as amended, the prevailing party shall not be entitled to recover attorneys' fees. 7. AUTHORITY Each of the parties is authorized to enter into this Settlement Agreement and has taken all actions to authorize its officers to enter into it and bind the parties, as evidenced by their signatures below. 8. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms and covenants set forth in the CM Contract, as amended, shall remain unchanged and shall be in full force and effect. 9. NO ADMISSION OF LIABILITY This Settlement Agreement and the releases contained herein and the consideration referred to herein are done to save litigation expense and to effect the compromise and settlement of claims and defenses which are denied, disputed, and contested. Nothing contained herein shall be construed as an admission by any party of any liability of any kind to any other party, person or entity. 10. INVALID CLAUSE MAYBE SEVERED. If any provision, clause, or part of the Settlement Agreement is adjudged illegal, invalid or unenforceable, the balance of this Settlement Agreement shall remain in full force and effect. [SIGNATURES ON NEXT PAGE] C.W. DRIVER, INC. Page 6 IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp City Attorney ATTEST: Date: Bv: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Rush N. Hill, II Mayor CM: C.W. DRIVER, INC., a California Corporation Dana Roberts President Date: Bessie Kouvara Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A: Claims List Exhibit B: NaturalPAVE Assignment Agreement €*hihif C -- mnle Ace'nnmon4 Corm C.W. DRIVER, INC. Page 7 EXHIBIT A CLAIMS LIST C.W. Driver, Inc. Page A -1 EXHIBIT B NATURALPAVE ASSIGNMENT AGREEMENT C.W. Driver, Inc. Page B -1 C.W. DRIVER, INC. Page 2 id C.W. DRIVER, INC. Page 2 -milli NMI 11 1 1 7.111. - - -- - - - - -- - - -- - - - - - OR NOW C.W. DRIVER, INC. Page 2 C.W. DRIVER, INC. Page 3