HomeMy WebLinkAbout1021- Vivion Rd W. Project-Fahey Final PaymentBILL NO. 2010-045 ORDINANCE NO. /0~ /
AN ORDINANCE AUTHORZING AND APPROVING CHANGE ORDERS 1 THROUGH 9 TO
THE AGREEMENT BY AND BETWEEN THE CITY OF RIVERSIDE AND J.M. FAHEY
CONSTRUCTION COMPANY FOR THE VIVION WEST ROAD PROJECT AND
AUTHORIZING FINAL PAYMENT UNDER THE REVISED CONTRACT IN THE AMOUNT OF
$2,288,522.16.
WHEREAS, the City issued an Invitation to Bid for the Vivion West Road Project within
the City; and
WHEREAS, the bid for said project was awarded to J. M. Fahey Construction Co. on
April 21, 2009, pursuant to Ordinance 2009-49; and
WHEREAS, the City terminated the services of J. M. Fahey Constnaction Co. on March
3, 2010; and
WHEREAS, the Board of Aldermen find it in the best interest of the City to authorize and
approve Change Orders 1 through 9 to the agreement with J. M. Fahey Construction Co. , as
set forth in the attached Exhibit "A" and resulting in a total revised contract amount not to
exceed $2,288,522.16; and
WHEREAS, the Board of Aldermen find it is in the best interest of the City to authorize
final payment under the contract with J. M. Fahey Construction Co. as set forth herein;
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
SECTION 1 -APPROVAL OF CHANGE ORDERS. Change Orders 1 through 9 to the
Agreement entered into by and between the City and J. M. Fahey Construction Co., set forth in
Exhibit "A" attached herein and incorporated herein by reference resulting in a revised contract
amount not to exceed $2,288,522.16 are hereby ratified and approved.
SECTION 2 -AUTHORITY TO EXECUTE. The City Administrator and all other
required city officials are authorized to execute the change orders authorized herein together
with any and all documents necessary or incidental to the performance thereof and make final
payment thereon.
SECTION 3 - SEVERABILITY CLAUSE. The provisions of this ordinance are severable
and if any provision hereof is declared invalid, unconstitutional or unenforceable, such
determination shall not affect the validity of the remainder of this ordinance.
SECTION 4 -EFFECTIVE DATE. This ordinance shall be in full force and effect from
and after the date of its passage and approval.
BILL NO. 2010-045
ORDINANCE NO. ~ Da ~
BE IT REMEMBERED that the above was read two times by heading only, PASSED
AND APPROVED by a majority of the Board o Aldermen and APPROVED by the Mayor of the
City of Riverside, Missouri, this ~ "'day of ~ , 2010.
Kathleen L. Rose, Mayor
ATTEST: .
~~~ ' c~c:
Robin Littrell, City Clerk
',
Approv as to Form:
Na omps n, City Attorney
QWQz
F~ Q
U
O
~a
w
r
S v
~~
d
~~
~~
~~~
°z .~ W ~
$~
~~~
~~~
~~
~~
m
~~
$~
~~v
~~~
~~
~~~
~~
3c
~ ~' z °s
s ~
~d
~~~~
~~~~~
a~ ~ ~
~ ~ ~
tt ~
~
~~
~~~
Z G
~ ~0p,;
~ ~
~ ~
~ C
C
~
~ "b,
r g
r g
r $
'-
Q
g~
~
~ ~
.5 9
~~ ~~
~~
~~~
~~
~~
~~
N tV
~~
~~
~~~=°•~
~~~~~
~~~~
_~
v
m
~1
K
W
.~
~S
~a ~
~~ ~
~~.
~°~~~ ~
~~~~ ~ ~
a~~ ~
~~~~
~~z~~
8 ~ ~'
.~
U
a
SETTLEMENT AGREEMENT
d
THIS SETTLEMENT AGREEMENT is entered into this ~~' day of July 2010 between
JM FAHEY CONSTRUCTION ~O. ("JMFCC°), a Missouri corporation, and the CITY OF
RIVERSIDE, MISSOURI ("City"), a municipal corporation,
WHEREAS, the Parties entered into an agreement for construction services dated April
21, 2009 related to construction of improvements to Vivion Road from Quiktrip to Aspen Drive;
and
WHEREAS, the City terminated the agreement for construction services on March 3,
2010 for City's convenience as set forth in Article XIV; and
WHEREAS, JMFCC has made claims against the City as to amounts due and owing it
under the agreement for construction services; and
WHEREAS, the Parties have, between #hemselves, negotiated a complete resolution of
any and all disputes and claims between them relating to the termination of the agreement for
construction services and intend, by the terms of this Settlement Agreement, to memorialize the
resolution of such disputes and claims between the Parties in connection with the termination of
the agreement for construction services;
NOW, THEREFORE, in consideration of the recitals set forth herein and other good and
valuable consideration, receipt of which is hereby acknowledged, the Parties agree as follows:
1. The Parties acknowledge that the agreement for construction services and other
contractual agreements between the Parties, whether oral or written, have been terminated for
City's convenience as set forth in Article XIV and that the City shall not be required to make any
additional payment to JMFCC nor shall JMFCC be required to perform any additional
construction services pursuant to the terms of such agreement for construction services and
that the amounts set forth herein shall establish all amounts due by City to Contractor pursuant
to such terming#ion.
2. Immediately upon the Parties' execution of this Settlement Agreement, the City shall
deliver to JMFCC the following:
a. A check in the amount of $17,736.43 made payable to L.G. Barcus and J.M. Fahey
Construction Co.; and
b. A check in the amount of $113,037.55 made payable to J.M. Fahey Construction
Co..
3. Each of the Parties releases and forever discharges the other and its respective
agents, servants, employees, officers, successors, and assigns from any and all claims, debts,
liabilities, demands, obligations, damages, losses, costs, expenses, actions and causes of
action, relating to the termination of the agreement for construction services. It is expressly
understood by the Parties that the terms of this Settlement Agreement only apply to the financial
obligations and disputes between the parties relating to termination of the agreement for
construction services and do not apply to the warranty of JMFCC relating to the performance of
work performed on the project prior to termination of the contractual relationship and the
ongoing contractual requirement set forth in the agreement including, but not limited to the
following sections: Article VII -Insurance, Article VIII -Indemnity, Article IX -Patent Liability,
Article X -Covenant Against Undue influence, Article XI -Records Regarding Payment, Article
XV -Compliance with taws, Article XIX -Warranty of the agreement for construction services.
4. JMFCC hereby represents and warrants that it has not assigned or transferred to any
person or entity any claims, debts, liabilities, demands, obligations, or costs relating to any
payments due under the agreement for construction services set forth herein. JMFCC agrees to
indemnify, hold harmless and defend (including the payment of actual attorneys' fees, costs and
expenses) from any claims, debts, liabilities, demands, obligations, damages, losses, costs,
expenses, attorneys' fees, actions or causes of action that are in any way based on or arise out
the claims of any subcontractors or third parties relating to payment of the amounts alleged to
be due under the agreement for construction services.
5. This Settlement Agreement embodies the entire understanding and agreement of the
Parties concerning the resolution of all disputes and claims relating to the contractual
relationship of the Parties under the agreement for construction services and as such, it fully
supersedes any other oral or written understandings, agreements, representations and
warranties between them relating thereto.
6. The terms and conditions contained in this Settlement Agreement shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, survivors and personal
representatives of each of the Parties.
7. The Parties, and each of them, agree to execute such other documents and take
such other immediate action as may reasonabty be necessary to accomplish the purpose of this
Settlement Agneement.
8. In the event that any condition, covenant or other provision of this Settlement
Agreement is held to be invalid or void by any court of competent jurisdiction, it shall be deemed
severable from the remainder of this Settlement Agreement and shall in no way affect any other
condition, covenant or other provision of this Settlement Agreement. If such condition, covenant
or other provision is held to be invalid due to its scope or breadth, it is agreed that it shall be
deemed to remain valid to the extent permitted by law.
9. This Settlement Agreement can only be amended or modified by a written agreement
duly executed by all of the Parties.
10. Any corporation signing this Settlement Agreement represents and warrants that
such execution is in compliance with any required resolution of its Board of Directors, duly
adopted at a meeting of such Board of Directors. Any individual signing this Settlement
Agreement on behalf of a corporation represents and warrants that he or she has full authority
to do so.
11. This Settlement Agreement shall be governed by and construed and enforced under
the laws of the State of Missouri.
12. In the event either Party commences any action in a court of law to enforce this
Settlement Agreement or obtain damages for the breach of this Settlement Agreement, the
prevailing Party shall be entitled to an award of its actual attorneys' fees and costs incurred in
such action.
13. This Settlement Agreement may be executed in counterparts, and each counterpart
shall be considered an original. This Settlement Agreement shall not be effective in any way as
to any of the Parties until fully executed by all parties and until counsel for each of the Parties
has been delivered a fully executed counterpart thereof.
IN WITNESS WHEREOF, the Parties have hereunto set their hands the day and year
first above written.
J.M. FAHEY CONSTRUCTION, CO.
~l ., .~-r
Joseph T. ah ,CEO
attest:
CITY OF RIVERSIDE, 1330URI
Kathy L. R ,Mayor
Attest:
.s Y~ ens
City clerk