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HomeMy WebLinkAboutItem 4.10 Granite Const Settlement Agmt CITY CLERK File # D[Z;][Q][Q]-~~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: May 15,2007 SUBJECT: Approval of Settlement Agreement between the City of Dublin and Granite Construction Company regarding the Dublin Boulevard Widening Project from Village Parkway to Sierra Court Report Prepared by: Melissa Morton, Public Works Director ATTACHMENTS: 1) 2) Settlement Agreement Budget Change Order RECOMMENDATION: # 1) Approve the Settlement Agreement between the City of Dublin and Granite Construction Company and authorize the Mayor to sign said agreement, and Approve a Budget Change in the amount of $375,000 2) FINANCIAL STATEMENT: The City's Traffic Impact Fees (TIF) will be used to fund the budget change. The total TIF allocation for this project (including the additional $375,000 being requested) is $2,138,094. The latest TIF update shows a total cost of $1,138,400, resulting in a deficit of $999,694. TIF reserves will be used to fund this difference until the next update of the TIF program, at which time the project funding will be revised. DESCRIPTION: The City of Dublin entered into a construction contract with Granite Construction Company (Granite) in May 2002 to perform construction services for Dublin on the Dublin Boulevard Widening project between Village Parkway and Sierra Court. The project was completed in May 2004; however, Granite had filed a construction claim for extra payment arising from the project. Consequently in February 2006, Granite filed a Complaint in Arbitration with the Office of Administrative Hearings against Dublin seeking damages arising from the project. On April 24, 2007, the City and Granite mediated the disputes and have agreed to settle and resolve the disputes. COPY TO: Page 1 of2 ITEMNO.~ G:\CIP\dbw-vpw sierra\Construction\AS Approval of Granite Settlement Agreement.doc C/ The attached settlement agreement between the City and Granite stipulates the terms of the agreement including the payment of the City to Granite the sum of $375,000 on or before May 16, 2007. This payment shall represent a full and final settlement between the parties regarding the project. Staff recommends that the City Council approve the settlement agreement between the City of Dublin and Granite Construction Company, authorize the Mayor to sign said agreement, and approve a budget change in the amount of$375,000. Page 2 of2 I ~1 4- SETTLEMENT AGREEMENT Granite Construction Company ("Granite") and City of Dublin ("Dublin") enter into this Settlement Agreement effective April 24, 2007 (the "Agreement"), as follows. WHEREAS, Granite, as prime contractor, and Dublin, as owner, entered into a prime construction contract on or about May 23,2002, for Granite to perform construction services for Dublin on the Dublin Boulevard Widening Project (the "Project"); WHEREAS, the Project was completed by Granite in or about April of 2004, and certain disputes and claims have arisen between Granite and Dublin concerning the Project and Granite's claims for extra payment arising thereunder; WHEREAS, in or about February of 2006, Granite filed a Complaint in Arbitration with the Office of Administrative Hearings against Dublin, Arbitration No. A-0005-06 seeking damages arising from the Project (the "Action"); WHEREAS, the parties mediated their disputes on April 24, 2007, and have agreed to settle and resolve all such disputes between them, and Dublin's City Council met in Closed Session pursuant to Government Code ~54956.9 on May 1, 2007 and approved the Settlement reached during the April 24, 2007 mediation; WHEREAS, the Dublin City Council met in open seSSIOn on May 15, 2007 and confirmed its approval of the Settlement and authorized the Dublin Mayor to enter into this Agreement; NOW, THEREFORE, for sufficient consideration, which is acknowledged by the parties, Granite and Dublin agree to be bound as follows: 1. Dublin shall pay Granite the sum of $375,000.00 on or before May 16, 2007. This shall represent a full and final settlement payment between the parties hereto regarding the Project and the Action. 2. Granite and Dublin shall release each other, their agents, employees, successors, assigns, sureties, and representatives from and against all claims, demands, suits, actions, causes of action, and defenses, whether known or unknown presently or in the future, arising out of or related in any way to the Project and/or the Action. A-OOOS-06/ Granite v. Dublin $1 \!;/Ol J~em it 4-'/D ATTAUIDfENT I. A.~q 3. Release of Unknown Claims. Each party understands and agrees that the released claims identified herein are intended to and do include any and all claims of every kind and nature, whatsoever, known, unknown, suspected or unsuspected, which they each may have against the other parties. Each party hereto expressly acknowledges that it hereby expressly waives any and all rights it has, or may claim to have, under ~ 1542 of the California Civil Code, and in any way related to or arising out of the facts and circumstances pertaining to the Project and/or which gave rise to the Action. California Civil Code ~ 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect 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. " Each party hereto further acknowledges that it may hereafter discover facts different from or in addition to those which it now knows or believes to be true with respect to the released claims and each party hereto agrees that, in such event, shall, nevertheless, be and remain effective in all respects, notwithstanding any different or additional facts or the discovery thereof. The parties hereto agree to waive the provisions of California Civil Code Section 1542. 4. The parties agree that this Agreement shall be admissible in evidence of the parties settlement regardless of any claim of Mediation or Settlement privilege pursuant to Code of Civil Procedure Section 664.6. 5. The individuals signing below represent that they are fully authorized to enter in to this Agreement by their respective entity indicated. 6. This Agreement shall bind and inure to the benefit of all successors, assigns and heirs of the parties hereto. 7. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall, nevertheless continue in full force and effect without being impaired or invalidated in any way. 2 A-OOOS-06/ Granite v. Dublin 30;(4 8. If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements with respect to any such action. 9. This Agreement supersedes any and all other agreements, either oral or in writing, between each party with respect to the matters set forth herein. Each party acknowledges that no representations, inducements, promises or agreements, orally or in writing, have been made by any party hereto or anyone acting on behalf of any party hereto which are not embodied in this Agreement and no other agreement, statement or promise shall be valid or binding. 10. This Agreement shall be construed and governed pursuant to the laws of the State of California. 11. Each person signing this Agreement represents that he/she is authorized to sign the Agreement on behalf of each applicable entity. IN WITNESS WHEREOF, the parties hereto have executed this Agreement and agree to its terms. DATED: May _,2007 GRANITE CONSTRUCTION COMPANY By: Title: DATED: May _,2007 CITY OF DUBLIN By: Title: Mayor ATTEST: City Clerk (Interim) 3 A-OOOS-06/ Granite v. Dublin CITY OF DUBLIN BUDGET CHANGE FORM FISCAL YEAR 06-07 ~~4 CHANGE FORM # New Appropriations (City Council ApprovaIRequired): Budget Transfers: _ X_ From Unappropriated Reserves Fund 300 From New Revenues From Budgeted Contingent Reserve, (1080-799.000) Within Same Department Activity Between Departments (City Council Approval Required) Other Name: Name: Dublin Boulevard Widening from Village Parkway to Sierra Court (FY 06-07) $375,000 Account #: Name: Account #: 300-96920-750-050 Name: Account #: Name: Name: Account #: Fin Mgr/ ASD: ~QuQ~.~ ~ Signature Date: S" I ~/ 2.1a. ~ q; t REASON FOR BUDGET CHANGE ENTRY: This budget change will provide payment for the settlement of Granite's claim against the City on the Dublin Boulevard Widening project in the amount of$375,OOO. City Manager: Date: S- / f3 ~c) 7 I I As Approved at the City Council Meeting on: Date: Mayor: Date: Signature Posted By: Date: fonnslbudgchng Signature ATTAUBmT Z.