HomeMy WebLinkAbout20170609.tiffRESOLUTION
RE: APPROVE SETTLEMENT AGREEMENT AND RELEASE AND AUTHORIZE CHAIR TO
SIGN - FLATIRON CONSTRUCTORS
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 Release
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, and Flatiron Constructors, Inc., with terms and conditions being
as stated in said Settlement Agreement and Release, and
WHEREAS, after review, the Board deems it advisable to approve said Settlement
Agreement and Release, 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 Release between the County of Weld,
State of Colorado, by and through the Board of County Commissioners of Weld County, and
Flatiron Constructors, Inc., be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said Settlement Agreement and Release.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 27th day of February, A.D., 2017.
ATTEST: aid) jeioii
Weld County Clerk to the Board
Date of signature:c24Cot �1
eputy Clerk to the Boar
ounty A torney
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLOF3QDO
a
Julie A. Cozad, Chair
EXCUSED
Sean P. Conway
Cc,: PC'1Csm)
Ca ct3(3�
5i(01 -1
ike Freeman
Steve Moreno, Pro-Tem
2017-0609
EG0074
SETTLEMENT AGREEMENT AND RELEASE
ThisSonfidential Settlement Agreement and Release ("Agreement") is entered into this
it ay of aiG6y-vary, , 2017 by and between (a) Flatiron Constructors,
Inc. ("Flatiron") and (b)e Board of County Commissioners of Weld County ("Weld
County"). Collectively, Flatiron and Weld County shall be referred to as the "Parties."
Recitals
WHEREAS, Flatiron was the prime contractor which built the Weld County Parkway, a
new concrete arterial highway, including substantial bridges over the South Platte River
and the Cache La Poudre River, between State Highway 34 and Weld County Road 60.5
("the Work"), and
WHEREAS, Flatiron notified Weld County of certain financial claims brought by
Flatiron against Weld County, based on the Construction Contract (dated July 14, 2014)
for the Work.
NOW, THEREFORE, the Parties desire to enter into this Agreement to acknowledge
payment in full and complete settlement and discharge of all claims that either Party may
have brought and that could have been the subject of any civil or administrative action,
based on all the facts, all according to the terms and conditions set forth in this
Agreement.
Accordingly, for good and valuable consideration, the receipt and sufficiency of which
the Parties hereby acknowledge, and intending to for this Agreement to bind them legally,
the Parties hereby agree as follows:
Agreement
1. Incorporation of Recitals.
The Parties, by this reference, incorporate into the Agreement the recitals stated above as
though such recitals were set forth in full in this Section 1.
2. Payment by Weld County.
Weld County will pay to Flatiron the total sum of Two Hundred Forty Seven Thousand
Four Hundred Thirty Six dollars ($247,436.00) (the "Settlement Payment") as provided
herein. This amount is comprised of $26,700 for the resolution of original bid items, as
well as $220,736, which represents 50% of Flatiron's remaining claim for amounts due
under the Construction Contract. Weld County shall pay the Settlement Payment by
County Warrant within ten (10) business days after counsel for Flatiron delivers an
executed copy of this Agreement to counsel for Weld County. Weld County shall
provide an executed copy of this Agreement to counsel for Flatiron on or before the date
that Weld County must pay the Settlement Payment.
2017-0609
The Parties acknowledge and agree that each are solely responsible for paying any
attorneys' fees and costs they incurred and that neither Party nor its attorney(s) will seek
any award of attorneys' fees or costs from the other Party, except as provided herein.
3. Taxes.
Flatiron shall be solely responsible for, and is legally bound to make payment of, any
taxes determined to be due and owing (including penalties and interest related thereto) by
it to any federal, state, local or regional taxing authority because of the Settlement
Payment. Flatiron understands that Weld County has not made, and it does not rely upon,
any representations regarding the tax treatment of the sums paid pursuant to this
Agreement. Moreover, Flatiron agrees to indemnify and hold Weld County harmless in
the event that any governmental taxing authority asserts against Weld County any claim
for unpaid taxes, failure to withhold taxes, penalties or interest based upon the payment
of the Settlement Payment.
4. Mutual Release.
The Parties, on behalf of themselves, their predecessors, successors, direct and indirect
parent companies, direct and indirect subsidiary companies, companies under common
control with any of the foregoing, agencies, divisions, boards, departments, affiliates and
assigns, and its and their past, present and future officers, directors, shareholders, board
members, interest holders, members, partners, attorneys, agents, employees, managers,
representatives, assigns and successors in interest, and all persons acting by, through,
under or in concert with them, and each of them, hereby release and discharge the other
Party, together with their predecessors, successors, direct and indirect parent companies,
direct and indirect subsidiary companies, companies under common control with any of
the foregoing, agencies, divisions, boards, departments, affiliates and assigns and its and
their past, present and future officers, directors, shareholders, board members, interest
holders, members, partners, attorneys, agents, employees, managers, representatives,
assigns and successors in interest, and all persons acting by, through, under or in concert
with them, and each of them, from all known and unknown charges, complaints, claims,
grievances, liabilities, obligations, promises, agreements, controversies, damages, actions,
causes of action, suits, rights, demands, costs, losses, debts, penalties, fees, wages,
medical costs, pain and suffering, mental anguish, emotional distress, expenses (including
attorneys' fees and costs actually incurred) and punitive damages, of any nature
whatsoever, known or unknown, which either Party has, or may have had, against the
other Party, whether or not apparent or yet to be discovered, or which may hereafter
develop, for any acts or omissions related to or arising from:
(a) Any claim related to the Work or the Construction Contract (the
"Dispute");
(b) Any other agreement between the Parties;
(c) any other matter between the Parties; or
2
(d) any claims under federal, state or local law, rule or regulation.
This Agreement resolves any claim for relief that is, or could have been, alleged no
matter how characterized, including, without limitation, compensatory damages, damages
for breach of contract, bad faith damages, reliance damages, liquidated damages,
damages for humiliation and embarrassment, punitive damages, and costs and attorneys'
fees related to or arising from the Dispute.
5. No Outstanding or Known Future Claims or Causes of Action.
Each Party affirms that it has not filed with any governmental agency or court any type of
action or report against the other Party and currently knows of no existing act or omission
by the other Party that may constitute a claim or liability excluded from the release in
Paragraph 4 of this Agreement.
6. Acknowledgment of Settlement.
The Parties acknowledge that:
(a) the consideration set forth in this Agreement, which includes, but is not
limited to, the Settlement Payment, is for full settlement of all claims or losses of
whatsoever kind or character that they have, or may ever have had, against the other
Party, including by reason of the Dispute; and
(b) by signing this Agreement and accepting the consideration provided herein
and the benefits of it, they are giving up forever any right to seek further monetary or
other relief from the other Party for any acts or omissions up to and including the
Effective Date including, without limitation, the Dispute.
7. No Admission of Liability.
The Parties acknowledge that they agreed upon the Settlement Payment as a compromise
and final settlement of disputed claims. The Parties further acknowledge that Weld
County's payment of the Settlement Payment is not an admission of liability by Weld
County, and that Flatiron shall not construe Weld County's payment of the Settlement
Payment as an admission that Weld County engaged in any breach, wrongful, tortious or
unlawful activity. Weld County specifically disclaims and denies (a) any liability to
Flatiron and (b) engaging in any wrongful, tortious or unlawful activity.
S. Confidentiality of Agreement.
This Agreement and the contents set forth herein are considered by Flatiron and Weld
County to be confidential and shall not be disclosed to third persons, except if such
disclosure required by the provisions of the Colorado Open Records Act (C.R.S. §§ 24-
72-201, et seq.), or by order of a court of competent jurisdiction.
9. Agreement is Legally Binding.
The Parties intend this Agreement to be legally binding upon and shall inure to the
benefit of each of them and their respective successors, assigns, agents, employees,
3
officers, directors, members and officials,. Moreover, the persons and entities referred to
in Paragraph 4, but not a Party, are third -party beneficiaries of this Agreement.
10. Entire Agreement.
This Agreement constitutes the entire agreement and understanding of the Parties and
supersedes all prior negotiations or agreements, proposed or otherwise, written or oral,
concerning the subject matter of this Agreement. Furthermore, no modification of this
Agreement shall be binding unless in writing and signed by each of the parties hereto.
11. New or Different Facts: No Effect.
Except as provided herein, this Agreement shall be, and remain, in effect despite any
alleged breach of this Agreement or the discovery or existence of any new or additional
fact, or any fact different from that which either Party now knows or believes to be true.
Notwithstanding the foregoing, neither Party shall construe anything in this Agreement
as, or to constitute, a release of any Party's rights to enforce the terms of this Agreement.
12. Interpretation.
Should a court declare or determine that any provision of this Agreement is illegal or
invalid, then such declaration or determination shall not affect the validity of the
remaining parts, terms or provisions of this Agreement, and the Parties shall not deem
said illegal or invalid part, term or provision to be a part of this Agreement. The headings
within this Agreement are purely for convenience and are not aids in interpretation.
Moreover, neither Party shall construe this Agreement against the other Party as the
author or drafter of the Agreement.
13. Governing Law and Choice of Forum.
Colorado law, and rules and regulations established pursuant thereto, shall be applied in
the interpretation, execution, and enforcement of this Agreement. Any provision included
or incorporated herein by reference which conflicts with said laws, rules and/or
regulations shall be null and void. In the event of a legal dispute between the parties, the
Parties agree that the Weld County District Court shall have exclusive jurisdiction to
resolve said dispute.
14. Reliance on Own Counsel.
In entering into this Agreement, the Parties acknowledge that they have relied upon the
legal advice of their respective attorneys, who are the attorneys of their own choosing.
The Parties also acknowledge that they fully understand the terms of this Agreement and
the Parties voluntarily accept such terms, and other than the consideration set forth
herein, no Party has made any promises of any kind to the other Party. The Parties
represent and acknowledge that in executing this Agreement they did not rely, and have
not relied, upon any representation or statement, whether oral or written, made by the
4
other Party or by that other Party's agents, representatives or attorneys with regard to the
subject matter, basis or effect of this Agreement or otherwise.
15. Counterparts.
The Parties may execute this Agreement in counterparts, and shall deem each such
counterpart as an original, but all of the counterparts together shall constitute the same
instrument.
16. Authority to Execute Agreement.
By signing below, each Party warrants and represents that the person signing this
Agreement on its behalf has authority to bind that Party, and that the Party's execution of
this Agreement is not in violation of any by-law, covenants or other restrictions placed
upon them by their respective entities.
17. Effective Date.
The terms of the Agreement will be effective when Weld County delivers an executed
copy of this Agreement to counsel for Flatiron as described in Paragraph 2 (the "Effective
Date"). This Agreement shall not be valid until it has been approved by the Board of
County Commissioners of Weld County, Colorado or its designee.
18. Governmental Immunity.
No term or condition of this contract shall be construed or interpreted as a waiver,
express or implied, of any of the immunities, rights, benefits, protections or other
provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as
applicable now or hereafter amended.
19. No Third Party Beneficiary.
It is expressly understood and agreed that the enforcement of the terms and conditions of
this Agreement, and all rights of action relating to such enforcement, shall be strictly
reserved to the undersigned parties and nothing in this Agreement shall give or allow any
claim or right of action whatsoever by any other person not included in this Agreement.
It is the express intention of the undersigned parties that any entity other than the
undersigned parties and the persons and entities referred to in Paragraph 4, receiving
services or benefits under this Agreement shall be an incidental beneficiary only.
20. Attorneys Fees/Legal Costs.
In the event of a dispute between Flatiron and Weld County concerning this Agreement,
the Parties agree that each shall be responsible for the payment of attorney fees and/or
legal costs incurred by or on its own behalf.
21. Binding Arbitration Prohibited.
5
Weld County does not agree to binding arbitration by any extra -judicial body or person.
Any provision to the contrary in this Agreement or incorporated herein by reference shall
be null and void.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THE
FOREGOING DOCUMENT CAREFULLY.
THE PARTIES UNDERSTAND THAT THEY ARE RELEASING BOTH KNOWN
AND UNKNOWN CLAIMS.
[SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, and intending to be bound legally, each of the Parties hereto
has caused this Agreement to be executed as of the date(s) set forth below.
Flatiron Constructors, Inc.
By:
Name: yr
Title: V c..c F3-ei do vy '
Date: 2—Zt-/7
e
BY: deth444
Name: tile i /:crf#nsirq
Tide: t/P
Date: Z -Z2--/7
Weld County
ATTEST:
Weld C
BY:
StC
erk to the Boar
Deputy Cle
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, C ORADO
<< J.. Ai
Julie A. Cozad, /C
air
FEB 2 7 2017
P20/7- 0tool
RE: SETTLEMENT AGREEMENT AND RELEASE - FLATIRONS CONSTRUCTORS
APPROVED AS TO SUBSTANCE:
e d a or Depent Head
Director ofGeneral Services
APPROVED AS TO FUNDING:
9�Controller
APPROVED AS TO FORM:
County Attorney
Hello