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HomeMy WebLinkAboutCity of Tamarac Resolution R-2022-067 Settlement Agmt & Mutual Release with West Construction IncTemp. Reso. #13802 June 22, 2022 Page 1 of 5 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2022 - A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING A SETTLEMENT AGREEMENT AND MUTUAL RELEASE IN THE AMOUNT OF $350,000.00 WITH WEST CONSTRUCTION, INC. FOR THE COMPLETION AND CLOSURE OF THE TAMARAC FIRE STATION 36 PROJECT, THE SWIM CENTRAL ANNEX PARK PROJECT, AND THE TAMARAC SPORTS COMPLEX CONCESSION BUILDING PROJECT; AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE SAID SETTLEMENT AGREEMENT; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Florida Statutes provide that municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal service, and exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, Article IV, Section 4.07 of the City Charter of the City of Tamarac ("City") empowers the City to adopt, amend, or repeal such ordinances and resolutions as may be required for the proper governing of the City; and WHEREAS, West Construction, Inc. ("West") entered into three design/build contracts with the City of Tamarac (the "City") for three separate projects that have suffered from significant delays caused by West; and WHEREAS, the Notice to Proceed for the design/build for the Fire Station 36 project was executed with a start date of July 9, 2018. This project, with all approved time extensions, was contractually required to be completed by September 13, 2020; and Temp. Reso. #13802 June 22, 2022 Page 2 of 5 WHEREAS, the Notice to Proceed for the design/build for the Swim Central Annex Park Project was executed with a start date of August 2, 2019. This project, with all approved time extensions, was contractually required to be completed by November 30, 2020; and WHEREAS, the Notice to Proceed for the design/build for the Tamarac Sports Complex Concession Building Project was executed with a start date of April 1, 2019. This project, with all approved time extensions, was contractually required to be completed by November 30, 2020; and WHEREAS, West contends that the City owes West payments exceeding $500,000 under the contracts for these projects, not including any deductions for liquidated damages; and WHEREAS, the City contends that it is entitled to liquidated damages from West due to the failure to complete each of these projects by the dates specified under the respective contracts; and WHEREAS, both parties desire to resolve all matters related to any payment(s) now due, and those that are due to accrue to West under the terms of the contracts for the projects; and WHEREAS, it is the recommendation of the Acting Public Services Director, Director of Financial Services, Purchasing and Contracts Manager, and the City Manager that the appropriate City Officials approve and effectuate the Settlement Agreement and Mutual Release with West Construction, Inc., a copy of said agreement is attached hereto as "Exhibit 1" (Settlement Agreement); and Temp. Reso. #13802 June 22, 2022 Page 3 of 5 WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in the best interest of the business owners, residents, and visitors of the City of Tamarac to approve and execute the Settlement Agreement for the completion of the Tamarac Fire Station 36 Project, the Swim Central Annex Park Project, and the Tamarac Sports Complex Concession Building Project in the amount of $350,000.00. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA THAT: Section 1: The foregoing recitals are true and correct and hereby adopted as the legislative and administrative findings of the City Commission; all exhibits attached hereto are incorporated herein and made a specific part of this Resolution. Section 2: The City Commission approves the Settlement Agreement attached hereto as "Exhibit 1 ", authorizes the appropriate City Officials to execute, and take all appropriate steps to implement, the Settlement Agreement. Section 3: All Resolutions or parts of Resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 4: If any clause, section, part, or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. Section 5: This Resolution shall become effective immediately upon its passage and adoption. Temp. Reso. #13802 June 22, 2022 Page 4 of 5 PASSED, ADOPTED AND APPROVED this 22nd day of June 2022. ,MAY_0'R MICHELLt 4KGOMEZ RECORD OF COMMISSION VOTE: MAYOR GOMEZ �'I DIST 1: COMM BOLTON No DIST 2: VM GELIN �S DIST 3: COMM VILLALOBOS DIST 4: COMM. PLACKO ATTEST: KIMBERLY ILLON, CMC ACTING CITY CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY FOR THE USE AND RELIANCE OF THE CIT1� OF TAMARAC ONLY: JO R. ERIN, JR. CITI(ATTIDRNEY SETTLEMENT AGREEMENT AND MUTUAL RELEASE -s,4x,C, This Confidential Settlement Agreement and Mutual Release ("Agreement") is made as of -21, 2022 (the "Effective Date") between the City of Tamarac (the "City") and West Construction, Inc. ("West") (collectively, the "Parties"): RECITALS A. West entered into three design/build contracts with the City for three separate projects: (1) Tamarac Fire Station 36; (2) Swim Central Annex Park; and (3) Tamarac Sports Complex Concession Building (collectively, the "Projects"). B. The Notice to Proceed for the design/build of the Fire Station 36 project was executed with a start date of July 9, 2018. This project, with all approved time extensions, was contractually required to be completed by September 13, 2020 (797 calendar days). However, as of the date of this Agreement, the project has not been completed. C. The Notice to Proceed for the design/build of the Swim Central Annex Park project was executed with a start date of August 2, 2019. The project, with all approved time extensions, was contractually required to be completed by November 30, 2020 (486 calendar days). However, as of the date of this Agreement, the project has not been completed. D. The Notice to Proceed for the design/build of the Tamarac Sports Complex Concession Building project was executed with a start date of April 1, 2019. The project, with all approved time extensions, was contractually required to be completed by November 30, 2020 (609 calendar days). However, as of the date of this Agreement, the project has not been completed. E. West contends that the City owes West payments exceeding $500,000 under the contracts for these projects, not including any deductions for liquidated damages. The City contends that it is entitled to liquidated damages from West due to the failure to complete each of these projects by the dates specified under the respective contracts. F. Now, the Parties desire to resolve any and all matters related to any payment(s) now due, and those that are due to accrue, to West under the terms of the contracts for the Projects. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Recitals. The Recitals set forth above are incorporated herein by reference. 2. Settlement Sum and Conditions Precedent. In full and final satisfaction for any payments due to West or to be accrued under the contracts for the Projects, the City shall pay West the sum of $350,000.00 (the "Settlement Sum"). The Settlement Sum will not become due until, and is expressly contingent upon, West completing all of the following conditions precedent: Page 1 of 5 a. For the Fire Station 36 project, West shall complete all work to close out the project, and shall submit to the City all outstanding items, including Executed Change Orders Nos. 7, 8, 9, and 10, the Final Release of Lien, and the Final Payment application; b. For the Swim Central Annex Park Project, West shall complete all work to close out the project, and shall submit to the City all outstanding items, including Executed Change Order No. 2 and the Final Release of Lien; c. For the Tamarac Sports Complex Concession Building Project, West shall complete all work to close out the project, and shall submit to the City all outstanding items, including Executed Change Orders Nos. 4 and 5, the Final Certificate of Occupancy, close-out all open permits, warranty bond, and Final Release of Lien. West shall provide written notice to the City upon completing all conditions precedent cited above. If the City finds that West satisfactorily completed all conditions precedent, the City shall deliver the Settlement Sum within 21 days of receiving the written notice from West. If the City finds that West has not completed all conditions precedent in a satisfactory manner, then the City shall notify West in writing and identify the conditions precedent that remain outstanding. The failure of West to complete all conditions precedent within forty-five (45) calendar days from the effective date of this Agreement shall be considered a material breach of this Agreement. 3. Release by West. Upon receipt and clearance of the full Settlement Sum, West, for itself and on behalf of its officers, directors, successors, predecessors, assigns, representatives, agents, insurers, attorneys, and advisors, hereby fully and forever releases and discharges the City, including its elected officials, managers, representatives, employees, agents, servants, insurers with whom any of the former have been, are now, or may hereafter be affiliated, of and from any and all rights, debts, claims, counts, causes of actions, obligations, demands, and damages, of every kind and nature, whether arising out of law or equity, and whether previously asserted or unasserted, known or unknown, have any connection with, arise from, are related to, are derivative of, or are in any way an extension or a consequence of, the contracts for the Projects and the Projects themselves, whether based in tort, contract or any other statutory, common law or other legal theory of recovery. 4. Release by City. Except as stated in Sections 5 and 6 of this Agreement, upon receipt and clearance of the full Settlement Sum by West, the City, for itself and on behalf of its elected officials, managers, representatives, employees, agents, and servants, hereby fully and forever releases and discharges West, including its officers, directors, successors, predecessors, assigns, representatives, agents, insurers, attorneys, and advisors with whom any of the former have been, are now, or may hereafter be affiliated, of and from any and all damages, demands, actions, liabilities, responsibilities, causes of action, suits, judgments, or disputes, whether known or unknown, whether past, present, or future, which have arisen or which may arise in connection with or relating to the dispute between the City and West concerning the amounts owed or not owed by to West or to the City under the contracts for the Projects. Page 2 of 5 5. Latent Defects. Notwithstanding anything in this Agreement to the contrary, the City does not release, acquit, or discharge West, or any of its officers, directors, successors, predecessors, assigns, representatives, agents, insurers, attorneys, and advisors, for any latent construction defects at the Projects that the City discovers or which the City is notified about after the effective date of this Agreement. 6. City Reserves Indemnity Claims. Nothing contained in this Agreement shall constitute a waiver by the City of any rights which it may have to seek a defense or indemnification from any entity or individual with respect to any demands, claims, lawsuits, expenses, fees, or fines arising out of or related to contracts for the Projects and the Projects. 7. Representations and Warranties. Each Party hereby represents and warrants that it is authorized and has full capacity to enter into this Agreement, that the Agreement is enforceable against it according to the terms hereof, and that no Party hereto has assigned any claims or rights intended to be addressed and released hereunder. The Parties acknowledge that they have had the opportunity to consult with and obtain the advice of counsel of their own choice, that the terms of this Agreement have been completely read, fully understood, and voluntarily accepted. 8. No Admissions of Liability. The Parties agree that by entering into this Agreement, they are not making any admission of liability and that the entry of the signatories into this Agreement shall not be construed as an admission of liability on the part of any of the Parties or as a confession of judgment by the Parties. 9. Interpretation. Wherever possible, each portion of this Agreement shall be interpreted in such a manner as to be valid, effective and enforceable under applicable law. This Agreement shall be construed without regard to any presumption or other rule requiring construction against the party or parties who created or caused it to have been drafted. 10. No Oral Modification. No change, modification, or waiver of any provision of this Agreement shall be valid or binding unless it is in writing and signed by all Parties to this Agreement. This provision cannot be waived by subsequent oral agreement and/or actions or conduct of the Parties. 11. Cooperation. The Parties shall cooperate in effectuating the provisions and intent of this Agreement at all times after the execution and delivery of same, including, without limitation, taking such other actions and entering into such agreements, releases, stipulations, and any other documents reasonably necessary or required to cagy out the Parties intent and the agreements herein contained. Each Party agrees to execute and deliver such other and further documents as may be required to carry out the terms of this Agreement. 12. Execution. This Agreement may be executed in separate counterparts, each of which shall be deemed an original document, but all of which shall constitute one and the same instrument. A counterpart of this Agreement transmitted by a Party hereto to the other Party by facsimile transmission or by e-mail and bearing the signature of such Party shall be deemed an original hereof and may be relied upon by the recipient as duly executed and effective notwithstanding the fact that the recipient did not receive an original copy of the transmitter's signature. Page 3 of 5 13. Costs & Attorney's Fees, The Parties agree to bear all of their own costs, including attorneys' fees, incurred in connection with the negotiation and drafting of this Agreement, except that if a Party commences litigation to enforce any provision in this Agreement, the prevailing party shall be entitled to recovery its reasonable attorneys' fees and costs. 14. Good Faith Communications. As a condition precedent to commencing any lawsuit to enforce this Agreement, the Party seeking to commence the lawsuit shall first make a good faith effort to engage in communications with the other Party in an effort to resolve any dispute related to this Agreement. Failure to attempt to engage in such communications prior to commencing a lawsuit shall render the lawsuit subject to dismissal. 15. Governing Law. This Agreement shall be deemed to have been executed and delivered within the State of Florida, and the rights and obligations of the Parties shall be construed and enforced in accordance with, and governed by, the substantive and procedural laws of the State of Florida, and where applicable, federal law, without regard to the conflicts of law principles thereof. 16. Binding Effect. This Agreement shall be binding upon the Parties and their heirs, successors, and assigns. 17. Construction. In giving meaning to this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and the use of any gender shall be held to include every other and all genders. 18. Headings. Each of the Parties agrees that the section headings contained herein are included for convenience only and are not to be deemed part of this Agreement. 19. Severability. Should any portion or provision of this Agreement be declared or determined by any court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining parts, terms, portions or provisions shall not be affected thereby, and the illegal, unenforceable or invalid part, term, portion or provision shall be deemed not to be part of this Agreement. In such an event, the balance of the Agreement shall remain in, and have its intended, full force and effect. 20. Notice. All notices and other communications required or permitted under this Agreement shall be in writing and shall be delivered by both first-class mail and e-mail, to the Parties at the addresses listed below: West Construction, Inc. Attn: Matthew West, Vice President 820 North 4"' Street Lantana, Florida 33462 mwest@westconstructionine.net Page 4 of 5 City of Tamarac Attn: Kathleen Gun, City Manager 7525 NW 88`' Avenue Tamarac, Florida 33321 Katlileen.Gunn@tamarac.org 21. Entire Understanding. This Agreement sets forth the entire understanding of the Parties. There are no contemporaneous oral promises, representations or agreements inducing entry into this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the dates noted below: WEST_ ION, NC. CI Y OF T M Print Name: / � Ate. !"k S+. up Print Name: l t GJO4a.,' Ll- Date: Z /-,>02 2_ Date: Z �022 Page 5 of 5 TAMARAC The City For Your Life May 18, 2022 Mr. Matthew West West Construction, Inc. 820 North 4th Street Lantana, FL 33462 Re: Settlement and Release Agreement Fire Station 36 Project Swim Central Annex Park Project TR 13802 EXHIBIT 1 Kathleen Gunn City Manager Sent via e-mail and Fed Ex overnight Tamarac Sports Complex Concession Building Project Mr. West: Please accept this letter as a response to your April 19, 2022 correspondence, in which you requested that the City of Tamarac (the "City") pay West Construction, Inc. ("West") the sum of $350,000 in exchange for West completing and closing out the following three projects, as well as providing all required documentation: Tamarac Fire Station 36, Tamarac Swim Annex, and Tamarac Sports Complex (the "Projects"). In your letter, you claim that West is owed "in excess of $500,000" for the Projects. The City disagrees. Each of these Projects has suffered from significant delays caused by West. As of the date of this letter, and after accounting for all approved time extensions, the Projects are collectively over 3,533 calendar days past their contractually scheduled completion dates. Therefore, under the terms of the contracts for these Projects, the City is entitled to a significant sum of liquidated damages against West. Moreover, these liquidated damages will continue to accrue day-by-day until the Projects are completed. Still, in an effort to bring closure to these Projects, the City will accept West's offer, subject to certain terms and conditions. These terms and conditions are detailed in the Settlement Agreement and Mutual Release (the "Agreement") enclosed with this letter. This matter will be brought before the City Commission at an upcoming regular City Commission Meeting for approval. If West wishes to settle this dispute, subject to the Commission approval, please have an authorized representative of West sign and deliver the two attached Agreements to me no later than this Thursday, May 26th, 2022. 7525 NW 88th Ave. I Tamarac, FL 331321 0: (954) 597-3510 1 F: (954) 597- 3520 TR 13802 EXHIBIT 1 Mr. Matthew West Page 2 May 18, 2022 Should you have any questions, please don't hesitate to contact me or John Doherty, Acting Director of Public Services, at (954) 597-3706. S' cerely, K thleen Gunn ity Manager Enclosure (2) C: Levent Sucuoglu, Interim Assistant City Manager John E. Doherty, P.E. Acting Director of Public Services John R. Herin, Jr., City Attorney Greg Warner, Parks & Recreation Director Keith Glatz, Purchasing/Contracts Manager Martha A. Morgan, President, West Construction, Inc. Al Altun, Chief Financial Officer, West Construction, Inc.