Loading...
HomeMy WebLinkAboutresolution.council.050-93 '.' i*" ' :~\, \{" .','~.',""'" "" p, \~ \j, .. !~' III "<,. RESOLUTION NO. 5'0 Series of 1993 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, DIRECTING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A COMPROMISE AND SETTLEMENT AGREEMENT IN THE MATTER OF CITY OF ASPEN vs. PCL CONSTRUCTION SERVICES, ET AL. (PITKIN COUNTY DISTRICT COURT CASE NO. 92 CV 69). WHEREAS, there has been submitted to the City Council a Compromise and Settlement Agreement in the matter of City of Aspen v PCL Construction Services, Inc., et al. (Case No,. 92 CV 69) pending in the District Court, Pitkin County, State of Colorado; and WHEREAS, the effect of said Compromise and Settlement Agreement would be to completely and finally resolve all outstanding claims, differences, and causes of action with respect to the above-referenced legal action; and WHEREAS, the City Council desires to approve the Compromise and Settlement Agreement and direct the City Manager to execute the same on behalf of the City. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves the Compromise and Settlement Agreement, a copy of which is attached hereto as Exhibit "A", and does hereby authorize the City Manager of the City of Aspen to execute said agreement and all such documents necessary to bring the above referenced legal action to a conclusion. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the /~ day of ~ _ ,1993. 7, {3~ ohn S. Bennett, Mayor ..',',',, !iff 11 '\, \\ 'II l$ 't.. \:,; " \~ 'i1! 11'1', iT 1\1\ n.:" I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. I~ pcl.res i.,I',.' ~ \~ fA ,., ~ ~. O~LL COMPROMISE AND SETTLEMENT AGREEMENT AGREEMENT made .1/or&;1;.1$Y /0 , 1993, between the City of Aspen, referred to as "claimant", and PCL Construction Services, Inc., referred to as "PCL", and the United States Fidelity & Guaranty Company, referred to as "USF&G", or collectively as "opponents". 1. PUI:pose. This Agreement is made as a compromise between the parties for the complete and final settlement of their claims, differences, and causes of action with respect to the disputes described below. 2. Statement of Disoute, Claimant has filed a complaint against opponents, alleging the following: a. Claimant and PCL entered into a written agreement dated March 11, 1989, under which PCL agreed to perform all general construction for the construction of a 415 to 425 automobile parking garage and transportation center located in the City of Aspen, Colorado, for and in consideration of the sum of Five Million Four Hundred Sixty-four Thollsand Two Hundred Thirty Dollars ($5,464,230.00). b. PCL, as principal, and USF&G, as surety, executed and delivered to claimant, as obligee, a performance bond in the penal sum of $5,464,230.00 conditioned upon PCL's faithful performance of all of its obligations pursuant to said March 11, 1989, agreement between PCL and claimant. c. Subsequent to completion and occupancy of the parking garage, the structure's roof began experiencing structural distress and damage. The distress and damage caused water to leak into the lower levels of the garage, onto parked cars utilizing the garage, and into the retail lease space occupied by the Aspen Chamber Resort Association, d. Subsequent to completion of the exterior landscaped plaza roof, large portions of the grouted joints between the brick pavers used for walkways developed patterns of distress and deterioration including cracks, separations, buckling, and spalling of grout material. e. Claimant notified USF&G that it considered PCL to be in default of its March 11, 1989, agreement with claimant. ~.:" ~ (It" " \'c.. ~.' ~. f. An action based on the above-stated claim has been filed and is now pending in the Pitkin County District Court, Colorado, entitled City of Aspen v, PCL Construction Services. Inc.. et aI., and identified as case number 92 CV 69. g. Opponents deny any liability to claimant. The parties desire to reach a full and final compromise and settlement of all matters and all causes of action arising out of the facts and claims as set forth. 3. Terms of Settlement. In consideration of the mutual covenants set forth, the parties agree as follows: a. PCL has repaired the waterproofing system and resultant structural distress and damage referenced in paragraph 2( c) above, and has replaced or repaired the paver joints referenced in paragraph 2(d), above. Claimant shall accordingly release, within forty-eight hours of execution of this Agreement, all of the remaining PCL retainage held by the claimant, which retainage is agreed by the parties to total $43,898.00, b. The parties agree that all of PCL's warranty obligations under the above-referenced March 11, 1989, Agreement have been satisfied except as follows: (1) with respect to the paver joint repair, PCL agrees to extend the one-year warranty identified at Article 13.2.2 of the General Conditions (AlA document A20l, 13th edition, August 1976 -- referenced at '7.2.3, Attachement B, of the March 11, 1989, Agreement) (hereinafter "General Conditions") for an additional period of time to and including July 30, 1994; and (2) with respect to the waterproofing, PCL and claimant agree to modify PCL's original warranty obligation (set forth at Section 07110, '1.07(A) of the Specifications referenced at p.2.5, Attachment B of the March 11, 1989, Agreement) to expire on July 30, 1994. c. PCL acknowledges and reaffirms its obligations under Article 4.18.1 of the General Conditions with respect to claims of third parties related to waterproofing warranty requirements or duties during the warranty period set forth in '3(b )(2), above. d. Claimant agrees that all claims, demands, rights, and causes of action that claimant has or may have against opponents with respect to the above-described dispute are satisfied, discharged, and settled. Claimant also agrees to seek, obtain, and be bound by a dismissal with prejudice in the above-described action against opponents. e. Opponents agree that all claims and demands that opponents have or may have against claimant with respect to the above-described dispute are satisfied, dis- charged, and settled, 2 .i,\ \\ "l (~ ~. .'. ;\ '~ 4. Reservation of Rights. This compromise agreement is to operate as a release and discharge only as to the parties, and it is agreed that claimant expressly reserves the right to prosecute suits and claims against any and all other corporations or persons that may be responsible for or that have contributed to the injuries and damages sustained and claimed by claimant. The Parties further reserve the right to prosecute suits and claims against any and all corporations or persons that may be responsible for injuries or damages sustained on account of facts and considerations not the subject of this compromise and agreement. 5. Effect of Agreement. This Agreement shall be binding on and inure to the benefit of the parties and their respective legal representatives, successors, and assigns. 6. Governing Law. This Agreement shall be governed by the laws of the State of Colorado, both as to interpretation and performance. 7. Venue of Actions. Any action at law, suit in equity, or judicial proceeding for the enforcement of this agreement or any provision shall be instituted only in the courts of the County of Pitkin, State of Colorado, IN WITNESS WHEREOF, the parties have executed this agreement on the date first above written. CITY OF ASPEN By: ~ ~ ~, t.5.. John S. Bennett, Mayor ATTEST: 3 .:,.- w '-q,;;" e' , !!i " "ik , "" (, APPROVED AS TO FORM: -~ C.m'/' ~/P~' John-P':' Wore ster Assistant City Attorney / ubert A. Far es Counsel for PCL Construction Services, Inc. APPROVED AS TO FORM: ~()~ Michael 1. Cook Counsel for United States Fidelity & Guaranty Company stir3.pcl pe~""fRUCT 7i;vreE:: me /', /~~ By I~j:~ ;.;,. y ~ Title: SHARON K. CLINTON 5i.('Rc.AR! UNITED STATES FIDELITY & GUAR- ANTY COMPANY By: ~ k~~ Title: ~ ~.-/ 4 MEMORANDUM TO: John Worcester FROM: Robert Gish A" 76iVI DATE: July 71 1993 RE: Rio Grande Parking Garage Settlement With PCL I am recommending that full settlement be made with PCL Construction Services, Inc. for the construction of the Rio Grande Parking Facility. PCL has met all of our requests to repair, replace and eliminate deficient items noted throughout the construction inspection. The two major deficiencies were the deteriorated grout on the Plaza Level brick pavers and the leakage of water through the Plaza Level. PCL replaced the deteriorated grout and the subcontractor gave the City of Aspen an extended two year warranty on the grout through the 1993-1994 winter season. PCL stopped 98% of the leakage through the Plaza Level. We have a registered Colorado Engineer's Certification that the remaining leakage will not have a long term detrimental impact on the structural integrity of the structure. Neither the City of Aspen, the design engineer or PCL were able to isolate the source of the last 2% of the leafs. "V" shaped gutter pans have been installed under the remaining drippage to channel the water away from vehicles parked in the garage. On June 16, 1993, the City of Aspen started our fourth year operation of the Facility. The garage is functioning as it was designed and we are now starting to experience normal maintenance items associated with a three year old building. The operational budget of the parking garage includes preventive and routine maintenance items. Financial Implications: The construction of the Parking Garage was completed within the revised budget approved by City Council in 1989. At the end of the project, the City held a total $54,738.00 which included retainage and unspent Capital Improvement Funds. In 1991, the Finance Department moved $24,738.000 to the Parking Fund and held $30,000.00 in an escrow fund to repay PCL for retainage held by the City. The amount of retainage resulting from the settlement is $47,398.00 due to PCL. Council Approval Required: Approval will be required from City Council to settle the suit and transfer $17,398.00 from the Parking Fund to the General Fund. cc: Amy Margerum Randy Ready George Robinson RFG/sp/m96.93 TO: FROM: CITY OF ASPEN City Attorney's Office 130 South Galena Aspen, Colorado 81611 (303) 920-5055 MEMORANDUM Mayor and Members of Council John P. Worcester DATE: July 7, 1993 a� RE: City of Aspen v PCL Construction Services, Inc., et al. This matter has been placed on your Consent Agenda for your consideration of a resolution which, if approved, would authorize the City Manager to execute a Compromise and Settlement Agreement in the above referenced lawsuit. During the winter following the completion of the Rio Grande Parking garage in 1990, the roof began experiencing structural distress and damage. Water began to leak into the lower levels of the garage, onto parked cars, and into the retail lease space occupied by ACRA. By spring of that year the exterior landscaped plaza roof began to show signs of a serious problem with the grouting used between the brick pavers forming the walkways and plaza area. The City attempted on numerous occasions to get the contractor, PCL, to correct the problems without too much success. Two attempts were made to get the surety on the performance bond, United States Fidelity & Guaranty Company, to faithfully perform on the contract between the City and PCL. Not getting the relief the City thought it was entitled to either from PCL or USF&G, a lawsuit was filed in the Pitkin County District Court in March, 1992. Soon after the lawsuit was filed the parties began settlement discussions and PCL stepped up efforts to correct the problems at the garage. Staff is now satisfied that all problems have been corrected and is recommending approval of a settlement agreement to completely resolve all issues of the lawsuit. (Please refer to Bob Gish's memo attached hereto.) The essential terms of the settlement agreement are as follows: • PCL has repaired all structural damage to the garage that caused the water leaks. 0 PCL has replaced all mortar joints with a laticrete cement mixture. • PCL shall extend the warranty contained in the original construction contract for a period of two years to cover the above referenced repairs. • PCL shall satisfy all claims from automobile owners whose cars were damaged because of the water leaks. • City shall release all retainage it still holds to PCL. • City shall dismiss the lawsuit with prejudice. • City shall treat the entire plaza with a water sealant to protect the new mortar joints. If you have any questions or concerns, please let me know. xc: Amy Margerum Bob Gish Jed Caswall Pd anem 2