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HomeMy Public PortalAboutResolution 2017-03-06 Authorizing Settlement Agreement Premier Earthworks and Infrastructure TOWN OF FRASER BOARD OF TRUSTEES Resolution No. 2017-03-06 A RESOLUTION AUTHORIZING THE TOWN MANAGER TO EXECUTE A SETTLEMENT AGREEMENT BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO, THAT: 1. The Town Manager is hereby authorized to execute a settlement agreement with. Premier Earthworks & Infrastructure, Inc., for an amount not to exceed $60,000. READ, PASSED ON ROLL CALL VOTE, AND ADOPTED BY THE BOARD OF TRUSTEES THIS -[S day of ma,t- , 2017. Votes in favor: 1 BOARD OF TRUSTEES OF THE Votes opposed: 0 TOWN F FRASER, COLORADO Absent: 6 _ Abstained: 0 BY: Mayor :1(- �NOFF�� ATTEST: ( S ; EAL (1 Town Clerk COLORADO SETTLEMENT AGREEMENT Recitals a. The Agreement is entered between The Town of Fraser,Colorado,a Colorado municipal corporation("Fraser"),and Premier Earthworks&Infrastructure,Inc.,a Colorado corporation("PEI"). b. Fraser and PEI are parties to a Public Works Construction Contract dated December 29,2014,for construction of certain highway improvements referred to as the Town of Fraser Highway 40 Improvements-Project No.NHPP-0403-058(the"Project"). The Contract documents incorporate the Colorado Department of Transportation("CDOT")Standard Specifications for Road and Bridge Construction,2011 Edition(the"CDOT Specifications"),with both Fraser and CDOT acting as the"Department"referenced in such Specifications. c. On or about January 21,2016, PEI submitted a notice of dispute pursuant to subsection 105.22 of the CDOT Specifications,regarding its claim for additional compensation with respect to the amount of Class 1 and 6 materials delivered to the Project. The parties have proceeded with efforts to resolve the dispute in accordance with subsections 105.22 and 105.23 of the CDOT Specifications, including submission of the dispute to a Dispute Review Board("DRB") appointed in accordance with the Specifications. However,the parties did not resolve the claim through those administrative proceedings and PEI elected to pursue de novo litigation regarding the claim. A complaint was filed by PEI in the Grand County District Court to commence such litigation,and that case is now pending as Case No. 2017CV30008(the"Pending Case"). Fraser has not been served with process and has not previously answered or filed an appearance in such Pending Case. d. The parties have now reached an agreement to settle PEI's claim and it is their desire to confirm and implement that settlement as provided herein. Agreement 1. Fraser agrees to pay PEI the sum of$60,000.00 in full and complete satisfaction of any and all claims for additional compensation relating to the Project beyond the sums previously paid to PEI,including but not limited to the formal claim submitted pursuant to the CDOT Specifications;and PEI agrees to accept such payment in satisfaction of such claims. Payment of said sum shall be made within ten(10)days after execution of this Agreement by all parties. 2. Within ten(10)days after payment of the$60,000.00 as provided in Paragraph 1 above,PEI shall file appropriate documents with the Court to obtain dismissal of the Pending Case. Each party shall be responsible for payment of their own costs and attorney fees relating to such Pending Case and prior dispute resolution proceedings. 3. Fraser and PEI agree and acknowledge that this Agreement is executed for the sole purpose of resolving claims relating to the Project and the Pending Case. It is agreed and acknowledged that neither the execution nor performance of any of the terms of this Agreement shall constitute or be construed as an admission by the parties of any liability. 4. The Parties agree to execute and deliver such other documents as may reasonably be necessary to implement or memorialize the terms of this Agreement. 5. No breach of any provision of this Agreement can be waived unless done in writing. Waiver of any one breach shall not be deemed a waiver of any other breach of the same or other provisions of this Agreement. This Agreement may be amended only by written agreement executed by each of the parties. The parties agree and acknowledge that no promise,inducement,or agreement not herein expressed has been made to them or any of their representatives,as this Agreement constitutes the entire agreement between the parties. 6. This Agreement may be executed in counterparts or by facsimile signature with each such counterpart or facsimile signature deemed to be and constitute an original of this Agreement. 7. The individuals signing this Agreement represent and warrant that they have the authority to execute this Agreement on behalf of their respective entities. 8. Excluding any warranties which PEI may have provided Fraser pursuant to the Contract Dated December 29,2014, each Party hereto hereby releases and discharges the other from any and all claims,demands, injuries,damages,actions,costs, expenses,attorneys' fees,liability and suits in equity or law,known or unknown,that predate this Settlement Agreement and are related to the Project. 9. In any action or proceeding brought for the purpose of construing or enforcing the terms of this Settlement Agreement,or for its breach,the substantially prevailing Party or Parties shall be entitled to recover its reasonable attorneys' fees,costs and expenses incurred therein. The parties,with their signatures,execute this Agreement effective on the dates set out below. FRASER PEI The T i. o raser, t•a Colorado Premier Earthworks&Infrastructure,Inc., icipal corpo o' a Colorado corporation : •. (I'rk Jeffrbin; own Manager BY: i TITLE: 77o ( 7 ('7 -2-