HomeMy WebLinkAboutRESOLUTIONS-2009-087-R-09N
11 /9/2009
0 S7-R-09
A RESOLUTION
Authorizing the City Manager to Execute a Settlement Agreement
with Scale Construction Inc.
WHEREAS, on February 26, 2007, the City of Evanston, Cook County,
Illinois ("City") issued an invitation to bid (bid number 07-46) for the Evanston water
utility expansion and renovation project (the "Project"); and
WHEREAS, on April 10, 2007, Scale Construction Inc. ("Scale"),
submitted a bid response to the City; and
WHEREAS, on April 23, 2007, the City Council of the City of Evanston,
Cook County, Illinois, approved the award of the Project to Scale; and
WHEREAS, on May 10, 2007, a contract was executed between the City
• and Scale relating to the Project the "Contract"); and
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WHEREAS, thereafter a controversy developed between the parties
regarding the Contract; and
WHEREAS, the parties now desire to settle the controversy arising
between them relating to the Contract; and
WHEREAS, the parties have reached a proposed settlement, the terms
of which are set forth in Exhibit A attached hereto and incorporated herein; and
WHEREAS, it is in the best interests of the citizens of Evanston to enter
into said Settlement Agreement,
NOW, THEREFORE, BE IT RESOLVE® BY THE CITY COUNCIL OF
• THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS, AS FOLLOWS:
SECTION 1: That the City Manager is hereby authorized to sign and the
City Clerk hereby authorized to attest on behalf of the City, a Settlement Agreement
between the City and Scale in substantial conformity with the Agreement attached as
Exhibit A and incorporated herein by reference.
SECTION 2: That the City Manager is hereby authorized and directed to
negotiate any additional conditions of the Agreement as may be determined to be in
the best interests of the City.
SECTION 3: That this Resolution 87-R-09 shall be in full force and effect
from and after its passage, approval, and publication in the manner provided by law.
'.7 Eliz th B. Tisdahl, Mayor
Attes#.... `� r
Rodney Greene;�6ity Clerk
Adopted:i.�.� 2009
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IWAN
SETTLEMENT AGREEMENT
• THIS IS AN AGREEMENT b and between the City of Evanston, an Illinois
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municipal corporation (hereinafter "the City"), and Scale Construction Inc. (hereinafter
"Scale").
RECITALS
1. On May 10, 2007, the City and Scale entered into a contract relating to the
Evanston Water Utility Expansion and Renovations at the Water
Treatment Facility in Evanston, Illinois (hereinafter "the Contract").
2. On December 24, 2008, Scale had substantially completed the scope of
work to be completed under the Contract.
3. On November 7, 2008 and July 13, 2009, Scale submitted letters
requesting a time extension and additional compensation under the
Contract.
4. The Parties met on several occasions to discuss and review the merits of
Scale's request for a time extension and additional compensation.
5. The City and Scale now desire to settle the controversy arising between
them related to the Evanston Water Utility Expansion and Renovations
Contract.
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated herein, the promises and mutual covenants and obligations contained
herein, and other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties covenant and agree that the terms of this settlement
agreement have been completely read and fully understood and voluntarily accepted
and agreed to for the purpose of making a full and final compromise and settlement
related to the Contract. The parties agree as follows:
1. Obligations of the parties.
A. Upon receipt of this signed Agreement, the City shall: process all
change orders, to bring the final amount of the Contract to two
million, six hundred twenty-five thousand, three hundred Thirty-eight
dollars ($2,625,338.00); and will extend the final completion date of
the Contract to November 9, 2009.
B. Subject to the other provisions of this paragraph, final payment shall
be made by the City to Scale within thirty (30) days of November 9,
. 2009.
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C. Scale hereby agrees to submit to the City the following
documentation before the City may make final payment to Scale: •
the final payment application: final waivers of lien from Scale and all
subcontractors; certified payrolls from Scale and all subcontractors;
and evidence of final, continuing insurance coverage complying
with the insurance requirements of the Contract.
D. Scale agrees to repair or replace the dented slat on the rollup door in
the City's filter shop before final payment is made by the City to
Scale.
2. Release. The City and Scale do hereby forever remise, release and
discharge each other, their former, current and future parents,
predecessors, affiliates, subsidiaries, and the former, current and future
directors, officers, agents, employees, representatives, whether acting in
their individual or official capacities, and all persons acting by, through or
in concert with any of them, and all successors and assignees from any
and all claims, demands, causes of action, charges, costs, expenses,
damages, penalties, liabilities, covenants, agreements, promises,
controversies, and judgments, of whatsoever kind or nature, whether
arising at law or in equity, whether presently known or unknown or
foreseen or unforeseen, whether matured, unmatured, potential, or
contingent, and whether in tort, in contract or otherwise which the City or
Scale now has or may hereafter have against each other, by reason of
any act, omission, failure to act, cause, matter or thing whatsoever, based •
upon, related to or arising out of the subject matter of the Contract.
Nothing in this paragraph shall in any way hinder the rights of the City with
regard to all causes of action which may accrue to the City as a result of
any breach of warranty under the Contract by Scale.
3. General Conditions.
A. Representations and Warranties of Authority. Each party
represents that it has the full power and authority to enter into this
Agreement, that the execution and delivery thereof will not violate
any agreement by which such party is bound or violate any laws,
and that this Agreement, as executed and delivered, constitutes a
valid and binding obligation of such party, enforceable in
accordance with its terms. Each party represents that it is
authorized to take all actions under this Agreement.
B. No Admission of Liability. The parties acknowledge that this
Agreement is being entered in settlement and to avoid further
dispute, expense or litigation. The parties agree that neither is
execution hereof nor performance of any of the provisions of this
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Agreement shall constitute or be construed as an admission on the
• part of either party of any liability and nothing herein shall be
admissible in any proceeding as an admission of any factual matter
against the party.
C. Entire Agreement. This Agreement constitutes the entire
agreement between the parties, and it is expressly understood and
agreed that this Agreement has been freely and voluntarily entered
into by the parties with the advice of counsel, who have explained
the legal effect of this Agreement. The terms of this Agreement are
contractual and not mere recitals. The parties further acknowledge
that no representation, inducement, promise or agreement, oral or
otherwise, has been made by the other party or anyone acting on
behalf of the other party that is not embodied herein. This
Agreement may not be altered, modified or otherwise changed in
any respect except by writing, duly executed by the parties or their
authorized representatives. This Agreement is fully integrated.
D. Construction. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that no rule
of construction to the effect that any ambiguities are to be resolved
against the drafting party shall be employed in the interpretation of
this Agreement.
E. Remedies. The parties retain the full range of legal and equitable
remedies to enforce the terms of this Agreement, including
injunctive relief and specific performance, to ensure the parties
comply with their commitments under this Agreement.
F. Time of the Essence. Time is expressly declared to be of the
essence of this Agreement and of every provision hereof in which
time is an element.
G. Captions. Paragraphs, titles or captions contained herein are
inserted as a matter of convenience and for reference, and in no
way define, limit, extend or describe the scope of this Agreement or
any provision thereof.
[SIGNATURE PAGE FOLLOWS]
ME
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year written below. •
Date: , 2009 CITY OF EVANSTON
By:
Signature:
Printed'Name:
Title:
Date: , 2009 SCALE CONSTRUCTION INC.
By:
Signature:
Printed Name:
Title:
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