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HomeMy WebLinkAboutSettlement Agreement Augusta Richmond GA DOCUMENT NAME: 3c1+\errren+-- Asyeemen+ DOCUMENT TYPE: ~(J~~~()~ YEAR: ~~ BOX NUMBER: w FILE NUMBER: \10C1<?- ~ NUMBER OF PAGES: /', 'f ., , SETTLEMENT AGREEMENT WHEREAS, AUGUSTA, GEORGIA (the "Cjty") has made certain demands against SHERMAN INDUSTRIES, INC. ("Sherman") and others related to alleged defective concrete pipe installed in the Wheeless Road Drainage Project (the "Project"); WHEREAS, the City and Sherman (collectively the "Settling Parties") desire to amicably resolve their dispute arising out of the alleged defective concrete pipe installed in the Project; NOW, THEREFORE, for and in consideration of the payment, promises, representations, and releases described below and other good and valuable considerations set forth herein, the receipt and sufficiency of which is hereby acknowledged, it is agreed as follows: 1. The City agrees to contact one or more engineering firms for the purpose of soliciting fixed price proposals to prepare a design package for removal and replacement of approximately 1100 feet of Class III 88" x 54" arch pipe located within the Project to include patching of paving, curb ,and gutters, grassing the medians or rights of way and clean up of debris. The City agrees to allow Sherman fourteen (14) calendar days to review and approve any request for proposal prior to issuance for bids from any engineering firm. Failure to provide a response within the fourteen (14) day period. will be deemed as approval by Sherman, and the City will proceed to submit the request for proposal. The City agrees that the request for proposal will not contain the Page 1 of 6 .."':~. ; words "defective pipe" but rather refer to "replacement of a segment of the Project." Included as part of the proposal will be a request that the engineering firms attempt to determine what portions, if any, can be salvaged for reuse, including head walls and junction boxes. Sherman agrees that any salvaged and reused item is subject to final approval by Public Works with concurrence of the Georgia Department of Transportation to be determined during the course of the work. 2. Sher~an agrees to pay the City the fees and expenses charged by the selected engineering firm pursuant to a contract between the City and the engineering firm, which costs are anticipated to be approximately Forty Thousand Dollars ($40,000.00). In addition, Sherman agrees to pay to the City eight percent (8%) of the total amount paid to the selected engineering firm fo~ the City's work in preparing and reviewing the request for proposal for engineering services and for other efforts in overseeing the project and engaging in the procurement. Said payments shall be made by Sherman Industries within ten (10) days of presentation of paid invoices. 3. The City agrees to prepare the bid package upon completion of the design of the replacement work by the selected engineering firm (which design is anticipated to take approximately four to six months). The City further agrees to allow Sherman twenty-one (21) calendar days to review and comment upon the design and bid package prior to issuance for bids. Failure to provide a response within the twenty-one (21) day period will be deemed as approval by Sherman, and the City will proceed to submit the bid package for public bids from various qualified contractors. Page 2 of 6 -" , 4. The City agrees to select a qualified contractor and execute a construction contract with the selected contractor in conformity to the City's usual rules and procedures for competitive bid projects. Sherman agrees to pay the bid amount of the selected contractor which is anticipated to be approximately Three Hundred and Fifty Thousand Dollars ($350,000.00). In addition, Sherman agrees to pay to the City eight percent (8%) of the bid amount for the City's efforts in inspection, supervision and administration of this work, including preparation of the bid package and ten percent (10%) of the bid amount for contingency to be placed in an escrow account. The Settling Parties agree that the City will not be responsible for or bear the costs associated with easement acquisition, detour routes, project/road security or any other item as such items will be the responsibility of the contractor; provided, however, that the necessary easements may be acquired in the name of the City. The items described in the preceding sentence shall be paid by Sherman within ten (10) days of presentation of paid invoice or other reasonable proof of payment. Whenever possible such items will be paid by Sherman as part of the selected contractor's bid amount and contract with the City. 5. Sherman agrees to provide 1100 feet of Georgia DOT Class "' 88" x 54" arch replacement pipe which will be subject to Sherman's standard warranty a copy of which is attached hereto as Exhibit "A". The bid package will specify that the pipe will be furnished free on board at the job site, to be unloaded by the selected contractor. The Project Contract will provide that the contractor shall be responsible for any damage to the pipe sustained during unloading and placement. Sherman's warranty Page 3 of 6 1 "t' with respect to the replacement pipe will exclude abuse, misuse, mishandling or damage during placement. Nothing herein shall be construed as relieving the contractor from responsibility for its work. 6. The City agrees that Sherman will be allowed to have an independent engineer on site during construction for the purpose of observing the removal and replacement of the pipe and particularly the existing bedding of the pipe. This independent engineer will have no authority with respect to removal of the pipe and/or installation of the replacement pipe. 7. If requested by Sherman The City shall assign to Sherman all the rights it may have against Mabus Brothers Construction (the original contractor for the Project) and Gary Concrete Products (now Zurn Industries, the party to whom Sherman furnished the pipe and who ultimately sold the pipe to Mabus Brothers) arising out of the alleged defective pipe so that Sherman and its insurer may pursue such actions as may be available to the City against those parties. The assignment shall be in the form attached hereto as Exhibit B. Upon satisfactory completion of the work described herein and Sherman's fulfillment of its obligations under this Agreement, the City shall pay Sherman the sum of $28,253.29 representing the sum presently 'being withheld from Mabus Brothers Construction on the original contract for the Project. 8. Sherman agrees that should the City obtain any reimbursement from the Georgia Department of Transportation related to funds which remain unpaid in connection with the Project, such funds will not be paid to Sherman under any circumstance. Sherman expressly disavows any claim for or entitlement to said funds Page 4 of 6 "' or any credit towards its obligations under this Agreement related to the receipt of said funds by the City. 9. The Settling Parties acknowledge that this Agreement is entered into in contemplation that the construction work required for replacement of the pipe will begin during the second quarter of 2004 and be completed prior to the end of the summer, 2004. Sherman shall notbe responsible for any delay damages that may be sustained except if such delays are caused by Sherman's failure to perform its duties under this Agreement. 10. The Tolling agreement between Mabus Brothers, Sherman, Zurn Industries and the City shall be deemed terminated upon execution of this Agreement. 11. Upon the satisfactory performance of its obligations under this Agreement, the City agrees to release Sherman from any further liability or responsibility related to the removal of the original pipe and installation of the replacement pipe while allowing Sherman to pursue any claims as may be available to the City. 12. In the event any portion of this Agreement is found invalid, whether by a Court, judicial board, or otherwise, the remaining portion shall continue to have full force and effect. 13. This Agreement shall be governed "by the laws of the State of Georgia. Any dispute arising hereunder that the Settling Parties cannot resolve shall be submitted to the Superior Court of Richmond County, Georgia and the Settling Parties agree to submit to the jurisdiction and venue of said Court. Page 5 of 6 - . j ~. ~ 14. The terms of this Agreement constitute the complete understanding and agreement of the Settling Parties, and no other promise or agreement shall be binding. Each Settling Party warrants to the other that this Agreement has been properly approved and each has authority to execute this Agreement. 15. This Agreement may not be amended, modified, superseded, canceled, or terminated, and its terms and conditions may not be waived, except by a written instrument executed by the Settling Parties. . . Executed this :/Lday of (5)t.-ff;b4 ,2003. SHERMAN INDUSTRIES, INC. ~ 1, ~.=t&. By: Frtt.l'\k V. A"ulev~cn 'IiL As ITS PRESIDENT (SEAL) SWORN 1.0 AND SU SCRIBED BEFORE ME THIS .2.i-~AY OF ,2003. -:-> ~. r- By: MAYOR ATTESTED TO BY: (SEAL) ,< . .~~. "f SW6~N:tO AND SUBseRIBED BEFORE ME ;.:~ 4,....1.-:::- f..... t5A"~ J T~IS~~<<:lUAY'0F;' .' ~~ {, 2003. :~<"'" ---~ J. ~. \":~ .. .,-::mt9PCWf-'u NOTARY. -Bere;. ~'...: / . No~ty~'~ITtifkl. ;~o,(j~~;6ounty. Georgia My Commission. Expires Aug. 1. 2006 '" Page 6 of 6 TER'MS AND CONDITIONS OF SAtE ". \:", 1. AGREEMENT: This quotation contains the complete agreement between Buyer and Seller. 2. TAXES: in aadlllon to prices quoted herein. the Buyer shall pay any applicable sales and/or use taxes. 3. TERMS: Unless otherwise specified herein. terms are NET cash thirty days from the date of Seller's invoice. 4. CREDIT: All orders are subject to approval and acceptance by Seller of Buyer's credit for material to be furnished under' terms stated above. J t;~ 'r ~ . a 5. SERVICE CHARG'E: A Service Charge will be assessed on all invoices not paid within 30 days from the date of the invoice. . The Sef\lice Charge will be an amount determined by applying a periodic rate of 1.5% per month (ANNUAL PERCENTAGE RATE OF 18%) to the past due amount This Service Charge will automatically be applied on the 31 st day fr.om the date of the invoice and a like amount will be added each 31 days thereafter until paid in full. A minimum charge of $1.00 per month will be assessed on all past due accounts to cover the cost of mailing the past due notices. In the event any sum due Seller shall not be paid as and when due, Buyer agrees to pay in addition to the amount due all costs of collection, including a reasonable attorney's fee, cost of court and waives any exemption allowed Buyer by operation-of law. 6. DEFAULT OF BUYER: On default in payment on the terms of this contract, or any other contract be~een Buyer and Seller, Seller at its own option may cancel the unfilled portion of this contract, and all sums owing from Buyer to Seller shall forthwith at Seller's option become due and payable, and the Seller may bring an action at law for any or all sums due or to become due from Buyer to Seller. The e~ercise of any of its rights under this contract shall not bar Seller from exercising its rights under applicable lien laws where the product is placed or installed. " 7. FREIGHT: Prices are F.O.B. project site, unless otherwise stated, accessible by our trucks under their own power, with maximum load. Prices are based on full truckloads as permitted by applicable laws. Partial loads, final delivery sites unaccessible by our trucks, and other additional freight expenses shall be for Buyer's account Buyer shall furnish the labor and equipment to unload trucks. Prices quoted are based on prompt unloading of truck. A maximum of 30 minutes per truck free time will be allowed for unloading. For each truck held at the job more than 30 minutes, Buyer will be billed at the rate of $30.00 per hour, or fraction thereof. In case of repeated delays in unloading, Seller reserves the right to discontinue deliveries until conditions causing delay are corrected. 8. DAMAGE CLAIMS: Any damage to the product in transit must be noted on the delivery ticket of truck involved, otherwise claims for such damage will not be recognized. Unloading of product is at Buyer's risk and Seller assumes no responsibility for personal injury or property damage. The Buyer will indemnify and save Seller harmless against any claims as a result of said unloading. . 9. RISK OF LOSS: After delivery of products to Buyer, the risk of loss or damage shall be upon Buyer. 10. WARRANTY: Seller warrants that the products sold by Seller hereby conform to the description and specifications, if any, on the face hereof. All other warranties are excluded. Seller shall not be liable for consequential damages directly or indirectly arising or resulting from the sale, handling, or use of the products sold. Seller's liability is limited at the option of Seller to replacement or repair of products in question or to refund or credit Buyer the price of such products. With regard to defects of products sold by Seller, if within 90 days from date of delivery, Buyer shall advise Seller in writing that any product or material is in Seller's sole judgment deemed to be defective in material or workmanship, Sell.er at its el~tion may repair or replace said item or credit Buyer the price ofs<:iid item. In any and all events~tnefun measure of Seller's liability shall be the purchase price paid to Seller for the aforesaid material. In no event shall Seller be liable for labor or consequential damage caused by any alleged defect in workmanship or material. 11. RETURN OF PRODUCTS: No products shall be retl!rned for credit without the prior consent of Seller. Any product to be returned for credit shall be loaded on Seller's truck at Buyer's expense. '12. SPECIALS: Special items not considered as standard inventory by Seller, and manufactured by Seller to Buyer's specification or job requirements, will become sole property of the Buyer and will not be accepted for return. 13. ASSIGNMENT AND CHANGES: Buyer may not assign this agreement and no order may be cancelled or changed in whole or in part without Seller's prior written consent Shipment cannot be extended beyond the original shipping date specified without the consent of Seller. 14. DELAYS: Seller will deliver or ship with reasonable promptness, but will not be responsible for losses or damage occasioned by delays. or by inability to obtain materials or equipment, or losses or damage resulting from failure to deliver caused by acts of God. the public enemy, the authority of law, or the act or default of the carrier or consignee, or by fires, floods, strikes. labor difficulties. differences with workmen, interruptions in transportation, riots, insurrections, war or other causes beyond Our control. EXHIBIT "^" Exhibit "B" FORM OF ASSIGNMENT State of Georgia ) Richmond County ) In consideration of One Hundred Dollars ($100.00) and other good and valuable consideration, the receipt of which is hereby acknowledged as being paid by Sherman Industries, Inc. ("Sherman), an Alabama corporation, to the City of Augusta, Georgia, a . -political subdivision of the State of Georgia ("City"), the City hereby assigns to Sherman all of the City's right, title, and interest in and to any cause of action available to the City which the City has or may have against either of Mabus Brothers Construction Company, Inc. of Augusta, 'Georgia ("Mabus"); Universal Surety of America, as surety under the performance bond and payment bond issued to the City in connection with the contact between the City and Mabus for the construction of Wheeless Road Storm Water Drainage Project (the "Project"); or G~y Concrete Products, Inc., now Zurn Industries, Inc. ("Zurn"), whether based in tort, contract or other theory of recovery, arising out of the installation or placement of the 54 concrete arch pipe for the Project, with full right to Sherman to maintain an action thereon in the name and stead of the City and to settle, compromise, or reassign such cause of action and to give a release in the name of the City in full discharge of the liability thereunder. Dated this day of ,200_. Augusta, Georgia By: Mayor Attested To By: Clerk of Commission Sworn to and Subscribed before me this _ day of , 2004. Notary Public