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HomeMy WebLinkAboutResolution 2019-083 Approving Settlment Agreement with HDR EngineeringCfAJJ.C • Lfj 4• 1 1: RELATING TO CLAIMS AND SETTLEMENT; APPROVING AND AUTHORIZING THE TOWN MANAGER TO EXECUTE A SETTLEMENT AGREEMENT BETWEEN THE TOWN OF MARANA AND HDR ENGINEERING, INC. RELATED TO DESIGN SERVICES FOR THE MARANA WATER RECLAMATION CONSTRUCTED RECHARGE FACILITY WHEREAS Marana Town Code Section 3-5-1(B) provides that the Town Attorney is authorized to file such claims, counter -claims, or third party claims, and to take such other legal action, as may be necessary to seek subrogation and reimbursement or to collect for damages sustained by the Town; and WHEREAS Marana Town Code Section 3-5-2(B) provides that no settlement of more than $15,000 shall be entered into except with the approval of the Town Council or in accordance with the provisions of the Town's coverage agreement with its insurance provider; and WHEREAS the Town and HDR Engineering, Inc. have reached agreement to settle an outstanding issue related to the design of the Marana Water reclamation constructed recharge facility in an amount in excess of $15,000; and WHEREAS the Mayor and Council of the Town of Marana find it is in the best interests of the public to enter into this settlement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Settlement Agreement between the Town of Marana and HDR Engineering, Inc. attached to and incorporated within this resolution as Exhibit A, is hereby approved and the Town Manager is authorized and directed to sign it on behalf of the Town. IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of this resolution and the Settlement Agreement. 00065201.DOCX /1 Resolution No. 2019-083 - 1 - PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 3rd day of September, 2019. ATTES Cherry L. awson, Town Clerk 00065201.DOCX /1 Resolution No. 2019-083 — ev - Mayor Ed onea APPROVED AS TO FORM: IPM EXHIBIT A SETTLEMENT AGREEMENT AND RELEASE This SETTLEMENT AGREEMENT AND RELEASE ("Settlement Agreement") is entered into by and between HDR Engineering Inc., a Nebraska corporation, with an office located at One South Church, Suite 625, Tucson, AZ 85701 (hereinafter referred to as "HDR"), and Town of Marana ("TOWN"), an Arizona municipal corporation with an office located at 5100 W. Ina Road Tucson, AZ 85743. The entities may be individually referred to as "Party" or collectively referred to as "Parties". RECITALS A. The parties entered into an Agreement for HDR to provide engineering services for the design of constructed recharge facility for the Town under Agreement Number 2014-012 1431 (the "Agreement"). B. Upon completion of the project, the Parties disputed the functionality of the project and the ability for operators to achieve desired diversion flows at the Diversion Structure and downstream of the UV channel without having to manually adjust valves (tile "Diversion Flow Issue"). C. The Parties now desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims related to the Diversion Flow Issue which are or might become the subject of a claim, upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows: Release and Discharge. In consideration of HDR's payment called for herein, and TOWN's acceptance of the proposed plan and payment outlined in the attached letter incorporated herein as Exhibit A, TOWN, its officers, directors, employees, agents and any successor, assign or affiliate agrees to completely release and forever discharge HDR, from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, loss of services, expenses and compensation, which TOWN now has, or which may hereafter accrue or otherwise be acquired by TOWN, on account of, or in any way growing out of the professional services provided under the Agreement related specifically to the Diversion Flow Issue. TOWN further agrees that TOWN will not initiate and shall not initiate, file, make or pursue any claim or administrative proceeding against HDR, including a claim against I -IDR or I-iDR's professional liability insurance, arising out of the professional services provided by HDR related to the Diversion Flow Issue. In addition, in consideration of the payment and services rendered under the Agreement and TOWN's agreement to settle any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, loss of services, expenses and compensation related to the Diversion Flow Issue, HDR its officers, directors, employees, agents and any parent company, subsidiary, subconsultant, successor, assign or affiliate agrees to completely release and forever discharge TOWN from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, loss of services, expenses and compensation which HDR now has, or which may hereafter accrue or otherwise be acquired by HDR, on account of, or in any way growing out of the professional services provided under the Agreement related to the Diversion Flow Issue. HDR further agrees that it will not initiate and shall not initiate, file, make or pursue any administrative proceeding, including a claim against TOWN arising out of the professional services provided under the Agreement related to the Diversion Flow Issue. 2. Consideration. In consideration of the release set forth above, HDR hereby agrees to pay TOWN the sum of sixteen thousand twenty-eight dollars and fifty cents ($16,028.50), in the form of a check made payable to TOWN. 3. Attorneys' Fees. Each Party hereto shall bear its own attorneys' fees and costs arising from any demand and this Settlement Agreement and incurred prior to the date of execution of the Settlement Agreement. In any action of any kind relating to this Settlement Agreement, the prevailing Party shall be entitled to collect reasonable attorneys' fees and costs from the non -prevailing party in addition to any other recovery to which the prevailing party is entitled. 4. Warranty of Capacity to Execute Agreement. The Parties represent and warrant that no other persons or entities have or have had any interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement, except as otherwise set forth herein, and that neither Party has sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations, or causes of action referred to in this Settlement Agreement. The undersigned signatories represent and warrant that each has the power and authority to bind their respective entities. 5. Entire Agreement and Successors in Interest. This Settlement Agreement contains the entire agreement between the Parties with regard to the matters set forth herein and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each Party. Representation of Comprehension of Document. In entering into this Settlement Agreement, TOWN represents that it has relied upon the legal advice of its own legal counsel or attorneys, and that the terms of this Settlement Agreement have been completely read and those terms are fully understood and voluntarily accepted by it. 7. Governing Law. This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of Arizona. The Parties consent to the exclusive jurisdiction and venue of the state courts in Pima County, Arizona. 8. Modification. No modification of this Settlement Agreement shall be binding on either of the Parties hereto unless it has been agreed to in a writing signed by both of them and identified as an amendment to this Settlement Agreement. Severability. If any provision of this Settlement Agreement shall be held or deemed to be invalid, inoperative or unenforceable, such circumstance shall not render the remainder of it invalid, inoperative or unenforceable, and this Settlement Agreement shall be reformed so that it is enforceable to the maximum extent permitted by law. 10. Counterparts. This Settlement Agreement may be executed in any number of counterparts, provided each of the Parties hereto executes at least one counterpart; each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. This Settlement Agreement may be executed and delivered by facsimile or other electronic transmission, and such signatures shall have the same force and effect as originals. 11. Effectiveness. This Settlement Agreement shall become effective as of the signature date of the last Party to sign this Agreement. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have signed this Agreement as of the dates set forth below: 3 Dated Aug 15, 2019 Dated: Proposed Resolution Letter David Skinner HDR Engineering, Inc. Jamsheed Mehta, 'Town Manager Town of Marana Exhibit A hdrinc.com August 15, 2019 Ms. Asia Philbin Resources Coordinator Town of Marana 5100 W. Ina Road Tucson, AZ 85743 Sent via e-mail Subject: Marana Recharge Project - Flow Diversions (Agreement No. 2014-012 1431) Ms. Philbin, This letter replaces the letter sent on January 8, 2019, and serves as an offer from HDR to assist the Town in paying for construction of i) a new weir plate at the Diversion Structure, and ii) relocation of the existing 4 -inch PLE line at the UV channel. As the Town has reported, operators were unable to achieve desired diversion flows at the Diversion Structure and downstream of the UV channel without having to manually adjust valves, which is difficult and time consuming to perform. HDR proposes paying the additional labor and equipment costs associated with completed installation of a new weir plate and relocating the 4 -inch PLE line. These costs are as follows: 1) New weir plate at the Diversion Structure: $7,751.50 2) 4 -in PLE relocation: $8,277.00 TOTAL $16,028.60 The proposed payment for the new weir plate is based on PCL proposal MAR-073-CRX045 for $9,749.00, approved by the Town, minus the material cost of the weir plate, $1,997.50, as provided by PCL in email correspondence dated 10/24/18. The material cost of the weir plate was removed from this offer because we consider this a cost the Town would have paid if it were included in the original design. The proposed payment for the 4 -inch PLE relocation is based on PCL proposal MAR-079-CRX051 rl for $8,277.00, also approved by the Town. We appreciate the Town's patience in working with HDR to resolve these issues, and we apologize for any inconvenience to operators. We also appreciate the contributions from Town staff in working with HDR to find solutions. If the Town finds this offer to be acceptable, HDR kindly requests the Town notify HDR of its acceptance. Acceptance of HDR's payment in the amount of $16,028.50 constitutes a complete release and waiver of any and all claims, damages, or demands whatsoever against HDR related to these two diversions. The payment and instituting the proposed solution will be a final and comprehensive resolution and release for any flow diversion issues. One South Church, Suite 615; 'hucson. AZ 85'/01 T 520.584.3600 F 520,584.362.4 P9. 1 If you have any questions, please feel free to call me (602-522-7709) or Ty Morton (520-584-3643). Sincerely, Jason Fort, PE Ty Morton, PE Area Water Business Group Manager Project Manager lid rinc.corn One South Church, Suite 600: Tucson, AZ 85701 T 520.564.3600 F 520.5184.3624 pg. 2