HomeMy WebLinkAbout20191325.tiffRESOLUTION
RE: APPROVE SETTLEMENT AGREEMENT AND MUTUAL RELEASE AND AUTHORIZE
CHAIR TO SIGN - FARMERS RESERVOIR AND IRRIGATION COMPANY (FRICO),
INTERSTATE HIGHWAY CONSTRUCTION, INC., (IHC) AND FELSBURG, HOLT, AND
ULLEVIG (FHU)
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Settlement Agreement and Mutual
Release among the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, Farmers Reservoir and Irrigation Company (FRICO), Interstate
Highway Construction, Inc. (IHC), and Felsburg, Holt and Ullevig (FHU), commencing upon full
execution of signatures, with further terms and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Settlement Agreement and Mutual Release among the County of
Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,
Farmers Reservoir and Irrigation Company (FRICO), Interstate Highway Construction, Inc. (IHC),
and Felsburg, Holt and Ullevig (FHU), be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 3rd day of April, A.D., 2019.
BOARD OF COUNTY COMMISSIONERS
WD COUNTY, CO RADO
ATTEST: dtni 4 ; 4
Weld County Clerk to the Board
BY:
Deputy Cler to t
APPROV D AS TO
my A orney
Steve Moreno
Date of signature: 4/q/IcI
t._ vl
rbara Kirkmeyer,,Chair
erYQk
Mike Freeman, Pro -Tern
an P. Conway
CUSED
C
ott K. James
Cc:pW(ER.k1-l/ckfcP) cR(sc)
2/26/21
2019-1325
EG0076
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (Agreement) is entered into effective Apr; I `,'13
2019 by and between Farmers Reservoir and Irrigation Company (FRICO), Weld County
(County), Interstate Highway Construction, Inc. (IHC) and Felsburg, Holt & Ullevig (FHU), any or
all of whom may be hereinafter referred to as Party or, collectively Parties.
RECITALS
Whereas, County, as Owner, entered into a contract with IHC, as design -build contractor,
for the design and construction of approximately 20 Miles of County Road 49 located in Weld
County, Colorado, Contract No. B1400202 (hereinafter Project); and,
Whereas, IHC entered into a contract with FHU for the design of the Project; and,
Whereas, County entered into various agreements with FRICO in connection with the
Project; and,
Whereas, IHC entered into three Temporary Access and Construction Permit agreements
(E. Neres 2016-71 North Crossing, E. Neres 2016-72 South Crossing and Gilmore Ditch 2016-73,
all bearing Permit No. 3538) with FRICO and paid FRICO a permit security deposit in the amount
of $5,000.00 on each permit for a total security deposit payment made to FRCIO of $15,000.00
(Permit Security Deposit) in connection with the design and construction of the Project
components in or over FRICO irrigation ditches or canals, all of which are deemed and considered
to be part of the Project; and,
Whereas disputes have arisen and claims and charges have been asserted between
FRICO, IHC, FHU and County in connection with the design and construction of the Project; and,
Whereas a separate and distinct dispute has arisen and claims have been asserted by
FRICO against County involving allegedly increased drainage water volume and manner of
discharge (greater than the volume existing prior to construction of the Project) entering the E.
Neres Canal and Gilmore Canal components of the FRICO irrigation system resulting from the
design and construction of surface water drainage facilities as part of the Project consisting of a
revised, larger capacity culvert running under CR 49 and a revised tail ditch on the North Side of
CR 50, all constructed at or near the intersection of CR 49 and CR 50 (hereinafter referred to as
the "Increased Drainage Volume Claims"); and,
Whereas the Parties are desirous of resolving all claims by and between them relating to
the design and construction of the Project; and,
Whereas the Parties have negotiated a full and final settlement of all disputes and claims
by and between the Parties as hereinafter provided;
NOW THEREFORE, in consideration of the payment and mutual releases hereinafter
provided, the Parties AGREE:
1. RECITALS: The foregoing Recitals are contractual in nature, acknowledged by and
binding upon the Parties and form an integral part of this Agreement.
ILANSING\0001 l 5270\0032\253728.v2-2/27/ 19
aoka-13,D5
2. SETTLEMENT PAYMENT: In consideration of the Mutual Releases hereinafter
provided, IHC, for itself and on behalf of its surety and insurers, County and FHU, all
of which are expressly intended Third Party Beneficiaries of the Settlement Payment,
shall pay to FRICO the total amount of $190,000.00, consisting of one lump sum
payment of $175,000.00 and FRICO's retention of the previously paid $15,000.00
Permit Security Deposit (Settlement Payment). IHC shall remit the lump sum payment
of $175,000.00 within 21 calendar days of the execution of this Agreement by all
Parties.
3. MUTUAL RELEASE: Upon the execution of this Agreement and receipt by FRICO of
the lump sum payment of $175,000.00 by IHC and with the sole exceptions of claims
relating to the enforcement of this Agreement and as provided in Paragraph 4, below,
the Parties hereby mutually and completely release, acquit and forever discharge
without limitation each from the other, together with their officers, directors, agents,
employees, members, shareholders, affiliates, subsidiaries, representatives, insurers,
sureties, successors and assigns, of and from any and all claims, demands, debts,
contracts, damages (whether economic, non -economic, punitive, incidental,
consequential, ensuing or resulting), actions, costs, fees, invoices, charges, expenses
of any kind or nature, lawsuits or causes of action of whatsoever kind or nature, in law
or in equity, whether arising by or grounded upon contract, tort (including but not
limited to actual or constructive trespass), or common or statutory law or other
authority, whether asserted or unasserted, whether known or unknown and whether
now existing or hereafter arising by reason of any matter, cause or thing, arising out
of or in any way relating to or resulting from the design and construction of the Project.
4. INCREASED DRAINAGE VOLUME CLAIMS: The Increased Drainage Volume
Claims are specifically excluded from the foregoing mutual release provided in
Paragraph 3, above, as between FRICO and County ONLY and shall be resolved at
some future date by and between FRICO and County ONLY, whether by negotiated
agreement, litigation or abandonment of such claims. This exclusion of the Increased
Drainage Volume Claims as between FRICO and County ONLY does not affect,
mitigate or otherwise exclude the Increased Drainage Volume Claims from the release
given to IHC and FHU in Paragraph 3, above. In the event of any litigation between
FRICO and County involving the Increased Drainage Volume Claims, the County shall
not give or file a "non-party at fault" notice or make a "non-party at fault" designation
that non-parties IHC or FHU are, wholly or partly, responsible for or the cause of the
alleged Increased Drainage Volume of which FRICO complains.
5. INFORMED AND VOLUNTARY EXECUTION OF AGREEMENT: The Parties hereby
acknowledge and agree that: (a) all matters contained or referred to in this Agreement
have been thoroughly considered by them, and are familiar to and have been fully and
satisfactorily explained to them; (b) all of the terms and conditions contained in this
Agreement are clearly understood by them and have been fully and unconditionally
consented to by them; (c) each of them has had the benefit and advice of counsel of
its own selection; (d) this Agreement is being entered into freely, voluntarily, with
knowledge and without duress; (e) in executing this Agreement, they are relying upon
no representations, either written or oral, express or implied, that are extraneous to
2
ILANSING\000115270\0032\253728.v2-2/27/ 19
this Agreement; and (f) the consideration received by them pursuant to this Agreement
is actual and adequate.
6. AGREEMENT AS COMPLETE DEFENSE: The Parties covenant and agree never to
commence and/or prosecute and/or continue prosecuting any legal action and/or other
proceeding based in whole or in part upon the claims, demands, causes of action,
obligations, damages, and/or liabilities released in this Agreement. This Agreement
may be pled as a full and complete defense to any such action or proceeding, and as
a basis for abatement of, or injunction against, such action.
7. NO ADMISSION OF LIABILITY: This Agreement is a result of a compromise between
the Parties and shall never, at any time or for any purpose, be considered as an
admission of liability and/or responsibility on the part of any Party herein released, nor
shall the payment of any sum of money in consideration for the execution of this
Agreement constitute or be construed as an admission of any liability whatsoever by
any Party herein released, each of which continue to deny all liability and disclaim all
responsibility.
8. NO CONSTRUCTION AGAINST DRAFTER: This Agreement is the product of
negotiation and preparation by and between the Parties and their respective attorneys.
The Parties, therefore, expressly acknowledge and agree that this Agreement shall
not be deemed prepared or drafted by one party or another, or its attorneys, and will
be construed accordingly.
9. BINDING UPON SUCCESSORS: This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective heirs, executors, administrators, trustors,
trustees, beneficiaries, predecessors, successors, assigns, partners, partnerships,
parent, subsidiary, affiliated and related entities, officers, directors, principals,
shareholders, agents, employees, servants, representatives, and all persons, firms,
associations and/or corporations connected with them, including, without limitation,
their insurers and sureties.
10. SEVERABILITY: If any provisions or any part of any provision of this Agreement is for
any reason held to be invalid, unenforceable or contrary to any public policy, law,
statute and/or ordinance, such provision shall be severed from this Agreement and the
remainder of this Agreement shall not be affected thereby and shall remain valid and
fully enforceable.
11. ENTIRE AGREEMENT: This Agreement constitutes the entire understanding
between the Parties with regard to the matters herein set forth and this Agreement
may only be amended in a writing signed by the Parties. There are no representations,
warranties, agreements, arrangements, undertakings, oral or written, between the
Parties relating to the subject matter of this Agreement, which are not fully expressed
herein.
3
ILANSING\000115270\0032\253728.v2-2/27/ 19
12. WARRANTY OF AUTHORITY: The Parties and their respective signatories hereto
covenant and warrant to the others that any and all authority to enter into this
Agreement and to execute this Agreement on behalf of the Party have been duly
obtained; that the signatory is competent to execute this Agreement on behalf of the
Party; and, that this Agreement is binding upon and enforceable against the Party.
13. DISPUTES: Any dispute involving the performance, non-performance, interpretation
or enforcement of this Agreement shall be resolved in a court of competent jurisdiction
in Weld County, Colorado. In any action between any of the Parties involving the
enforcement of this Agreement, the prevailing party shall be entitled to recover and
the non -prevailing party shall pay the prevailing party's costs, expenses, consultant
and expert witness fees, discovery expenses and reasonable actual attorney fees.
14. COUNTERPARTS AND ELECTRONIC EXECUTION: This Agreement may be
executed in counterparts and by facsimile or electronic transmittal all of which so
executed shall be considered as an original signature and constitute an agreement
which shall be binding upon the Parties.
<Balance of page intentionally blank. Signatures on next page>
4
ILANSING\000115270\0032\253728. v2-2/27/ 19
15. GOVERNING LAW: This Agreement shall be governed by the laws of the state of
Colorado.
FARMERS RESERVOIR AND
IRRIGATION COMPANY
COUNTY OF WELD, COLORADO
BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY OF WELD
By: Scott Edgar
Its: President
By: Barbara Kirkmeyer
Its: Chair APR 0 S 2019
eputy Clerk t,j he : oard
INTERSTATE HIGHWAY FELSBURG, HOLT & ULLEVIG
CONSTRUCTION, INC.
By: John Medberry By: Dean Bradley
Its: Vice President, Administration Its: President
5
ILANSING\000115270\0032\253728.v2-2/27/ 19
02o/ 9-L3a
15. GOVERNING LAW This Agreement shall be governed by the laws of the state of
Colorado
FARMERS RESERVOIR AND
IRRIGATION COMPANY
By: Scott Edgar
Its: President
COUNTY OF WELD, COLORADO
BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY OF WELD
t .1,,.: :LA
By: Barbara Kirmeyer n
Its: Chair "1�
eputy Clerk the Board
INTERSTATE HIGHWAY FELSBURG, HOLT & ULLEVIG
CONSTRUCTION, INC.
By: John Medberry
Its Vice President, Administration
5
II.ANSING'000I 15270'O(3225171g e2-2i27i I9
By. Dean Bradley
Its: President
.20/
15. GOVERNING LAW: This Agreement shall be governed by the laws of the state
of Colorado.
FARMERS RESERVOIR AND
IRRIGATION COMPANY
COUNTY OF WELD, COLORADO
CLERK TO THE BOARD by and
through COMMISSIONERS OF THE
COUNTY OF WELD
By: Barbara Kirkmeyer
Its: General Manager Its: Chair
Attest:
By:
Deputy Clerk to the Board
INTERSTATE HIGHWAY FELSBURG, HOLT & ULLEVIG
CONSTRUCTION, INC.
By: John Medberry By: Dean Bradley
Its: Vice President, Administration Its: President
5
'LANSING \ I5270 003 2\253728.v2-2/2749
15. GOVERNING LAW: This Agreement shall be governed by the laws of the state
of Colorado.
FARMERS RESERVOIR AND
IRRIGATION COMPANY
By: Scott Edgar
Its: President
COUNTY OF WELD, COLORADO
CLERK TO THE BOARD by and
through COMMISSIONERS OF THE
COUNTY OF WELD
By: Barbara Kirkmeyer
Its: Chair
Attest:
By:
Deputy Clerk to the Board
INTERSTATE HIGHWAY FELSBURG, HOLT & ULLEVIG
CONSTRUCTION, INC.
/
By: John Medberry By: Dean Bradley
Its: Vice President, Administration Its: President
ILANSIN(i1000I 15270100321253771.v3-2/2g/I9
Hello