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Settlement Agreement & Release of All ClaimsProject No. 00-1248 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS NOW ON THIS,3©day of September, 2009, the undersigned, City of Salina, Kansas, a Municipal corporation with principal offices at 300 West Ash, Salina, Kansas ("City"), Wilson & Company, Inc. Engineers and Architects, 1700 East Iron Avenue, Salina, Kansas ("Wilson"), and King Construction Company, Incorporated, P.O. Box 849, Hesston, Kansas ("King"), (collectively the "Settling Parties") do for the considerations hereinafter set forth enter into this Settlement Agreement and Release of All Claims. WHEREAS, Wilson provided consulting, design, engineering, inspection, and other related services ("Engineering Services") to City in connection with a project commonly known as the North Ohio Street Overpass, City Project No. 85 K 8307 -01 - Saline County, a/k/a Kansas Department of Transportation, Project No. 85 K 8307- 01/505096202 ("Project"); and WHEREAS, a dispute has arisen between City and Wilson over and concerning claims by City that Wilson's engineering services were defective, deficient, negligent, contained alleged errors or omissions, were in breach of contract or otherwise failed to meet the ordinary and customary standard of care, allegedly causing the City to incur expenses associated with the remediation of the alleged construction deficiencies or other damages associated with the Project; and WHEREAS, King provided construction services ("Construction Services") associated with the construction of the project based in part upon the engineering services provided to the City by Wilson; and wsabeop0101056883 v.1 WHEREAS, a dispute has arisen between City and King arising out of and relating to claims by City that King's construction services were in breach of contract, allegedly causing the City to incur expenses associated with the remediation of the alleged construction deficiencies or other damages associated with the Project; and WHEREAS, a dispute has arisen between King and City arising out of and relating to contract balance claims by King that it was not compensated for certain project components (pathway poles - $67,490) and material overruns (sidewalk surface — $12,115), that liquidated damages were improperly assessed and held on account by KDOT (126 days at $2,000/day - $252,000), and that the City owed King accruing interest on those combined sums as of July 11, 2008 in the amount of $43,153.75. WHEREAS, the outcome of the claims and disputes between the Settling Parties is uncertain and each separate party hereto desires to settle all claims and disputes between them concerning the respective engineering services, construction services, and the Project fully and finally without further risks, uncertainties, expenses, and inconveniences of litigation; NOW, THEREFORE, it is hereby agreed as follows: CONSIDERATION. City stipulates that the total monetary value of its claim against Wilson arising out of or relating to Wilson's Engineering Services on the Project is $280,519.00. City and Wilson agree that in consideration of this Settlement Agreement and Release City and Wilson agree to the full, complete and final resolution, settlement and satisfaction of all Project claims and disputes between them as provided for herein as follows: wsabeop0101056883 v.1 2 CITYMILSON CLAIMS City's total claim of $280,519.00 shall be satisfied by applying the following credits: 1) ($10,250.00) associated with painting and graffiti control; 2) ($6,700.00) associated with a damaged bridge barrier wall connection. 3) ($51,000.00) for Wilson's agreement to allow City to apply the payment due Wilson from City on an unrelated professional services invoice toward this Settlement Agreement. Wilson stipulates that upon application of said $51,000.00 to the Settlement Agreement said invoice shall be considered paid in full. 4) ($135,000.00) in the form of a cash payment by Wilson concurrent with the final execution of this Settlement Agreement. 5) $77,569.00 to be paid to the City by Wilson in the form of a 15% credit against Wilson's charges for future Professional Services. This credit shall be applied by Wilson to each future invoice submitted to City by Wilson following the effective date of this Settlement Agreement. The 15% credit shall be applied until such time as the settlement balance of $77,569.00 has been reduced to zero by the application of said credits. CITY/KING CLAIMS City and King stipulate and agree that in consideration of the execution and performance of the Settlement Agreement and Release, City and King agree to the full, complete and final resolution, settlement and satisfaction of all Project claims and disputes between them as provided for herein as follows: wsabeop0101056883 v.1 3 1) Resolution of final repairs and/or completion of the west barrier rail transition, west barrier rail, including fence removal and installation. a) The $10,250.00 credit to Wilson in the City/Wilson settlement attributable for the work performed by PCI in completing the painting and graffiti control work called for under the King contract will be paid to the City by King; b) The $6,700.00 credit to Wilson in the City/Wilson settlement for the southernmost fence connection will be paid to the City by King. 2) Resolution of sidewalk surface cracking on all four quadrants of the North Ohio and Pacific Intersection. a) King shall complete this work as soon as reasonably possible but no later than the close of the 2009 construction season following the final execution of this Agreement. b) The City shall reduce the scope of the reinstallation by eliminating the 2.75 meter wide surface area outside the dimension of the actual sidewalk. King shall remove and dispose of the existing installation, reinstall the sidewalk at all four quadrants of the intersection based upon the revised scope as depicted on the attached and incorporated Exhibit "A", and restore and reseed all disturbed areas. c) Payment by City to King of $10,000.00, which $10,000.00 will be paid by City from the cash proceeds of the City/Wilson settlement. wsabeop0101056883 v.1 4 d) King will remove the concrete residue on traffic signals, manhole covers, lid and rings. 3) Resolution of Sidewalk surface cracking of expansion joints in bridge and sidewalk cracking at irrigation system access lid in northeast quadrant of bridge. a) King shall complete the removal and replacement of the sidewalk approaches according to the project plans and specifications prepared by Wilson. b) Payment by City to King of $9,303.00. c) Payment by City to King of $9,530.00 for the replacement tread plates. d) Said two payments in (b) and (c) above totaling $18,833.00 shall be paid by City to King from the cash proceeds of the CityMilson settlement. e) King agrees that it will correct the discoloration/rusting on the stainless steel plates covering the expansion joints and the bridge. f) This work shall be done as soon as reasonably possible but not later than the close of the 2009 construction season following the final execution of this Agreement. 4) Resolution of sidewalk finish on sidewalk between traffic lights and bridge. a) City and King stipulate and agree that specific segments of the sidewalk on the project itemized in the May 2, 2009 letter from City to KDOT attached and incorporated as Exhibit "B" have been wsabeop0 101056883 v.1 5 identified and agreed upon as not in compliance with project specifications and the ADA cross grade requirements. b) KDOT has confirmed that King will be responsible for and King agrees that it will undertake and complete the removal, replacement and disposal of the non-compliant segments of the sidewalk and restore and reseed all disturbed areas as a condition precedent of KDOT's acceptance of the project. c) Said sidewalk replacement work to be undertaken and completed by King will not entail any payment by or reimbursement by City to King and shall be performed by King at King's sole cost and expense. d) It is stipulated by City and King that only the non-compliant segments of the sidewalk are to be replaced. e) King agrees to undertake and complete said work as soon as reasonably possible, but no later than the close of the 2009 construction season after the final execution of this Agreement. f) Said work shall include removal of the material and restoration and reseeding of the disturbed areas. 5) Resolution of three Texturetop Sections. a) City and King stipulate and agree that three specific sections of broken Texturetop specifically identified by e-mail from Tim M. Miles of Wilson Co. dated August 20, 2009 at 10:15 a.m. and attachments thereto attached and incorporated as Exhibit "C" will be repaired to original design/construction requirements. wsabeop0 101056883 v.1 6 sections. b) King shall remove and replace the Texturetop and the designated c) The cost of said removal and replacement of the Texturetop in the three sections will be at King's expense. d) This work shall be done as soon as reasonably possible but not later than the close of the 2009 construction season following the final execution of this agreement. 6. City and King further stipulate and agree that King asserted contract balance claims against the City totaling $374,758.75 as detailed in King's counsel Hill's letter to City on behalf of King dated July 11, 2008 as follows: Pathway pole $67,490.00 Sidewalk walking surface, additional cost 12,115.00 Liquidated damages withheld 252,000.00 Interest 43,153.75 Total $374,758.75 7) City and King stipulate and agree that unrelated to claims arising out of or related to the West Barrier transition, the West Barrier wall repairs and fence reinstallation, the City asserted in response to King's claims as above described certain claims associated with the following to wit: a) Warranty claims for certain tree plantings under the King contract; b) King's share of responsibility for certain construction related matters; wsabeop0 101056883 v.1 7 c) King's responsibility for the sidewalk running from the bridge to the Ohio/Pacific intersection related to non-compliant cross slope plan specifications and ADA requirements. 8) City and King stipulate and agree that as part of this Settlement Agreement they have reached a compromise settlement of the aforementioned disputed claims. Consideration for the settlement and compromise of such claims and disputes between City and King are as follows to wit: a) City's authorization to KDOT to release $252,000.00 in liquidated damages to King, $200,000 of which is stipulated to have been conditionally released at or before the execution hereof. b) The remaining $52,000.00 shall be released upon: 1) King's satisfactory completion of the work as described hereinabove in Paragraphs 2, 3, and 4; 2) The acceptance of the work by the City and, to the extent required, also by KDOT; and 3) King's payment to the City of $4,000.00 for replacement trees. c) Upon fulfillment of the conditions in b) above, the cash payments to be exchanged between the City and King under this Agreement shall be 'netted out' and the balance paid by the City to King. The City will owe King $80,833 ($52,000 remaining release of liquidated damages held by KDOT; $10,000 for intersection sidewalk reinstallation; $9,303 for removal and replacement of wsabeop0 101056883 v.1 8 sidewalk approaches; and $9,530 for replacement tread plates). King will owe the City $20,950 ($10,250 for completion of the painting and graffiti control work; $6,700 for the southernmost fence connection; and $4,000 for tree replacement). The net sum owed by the City to King in the amount of $59,883 will be paid by the City authorizing release to King of the remaining $52,000 held by KDOT and an additional cash payment in the amount of the $7,883 balance." d) City and King agree to execute the necessary change orders or any other documentation required by KDOT in completion of the remaining work called for under this Agreement. ADDITIONAL CONSIDERATIONS. The "Settling Parties" expressly stipulate and agree that as part of the consideration for this Settlement Agreement and Release of Claims is their mutual unconditional release of all claims against each other as specifically set out in this Agreement. It is agreed by and between the Settling Parties that the mutual releases and settlement of all claims and disputes between them as provided for herein shall be effective upon the final execution of this Agreement. The Settling Parties agree that the sole remedy for any breach of the terms and conditions of this agreement or for any cause of action arising hereunder for the breach hereof shall be exclusively limited to such rights as the parties may have under law and equity for the specific enforcement hereof or for damages arising out of or related to its breach. wsabeop0101056883 v.1 9 RELEASE. The Settling Parties, individually and each for itself, its successors, predecessors, parent, affiliates, subsidiaries, assigns, officers and directors, and insurers, do hereby and herewith fully and forever release and discharge each other, their successors, predecessors, parents, affiliates, subsidiaries, assigns, agents, employees, officers, directors, subcontractors, insurers, officials, attorneys, sureties, and all other affiliated persons, firms or corporations, of and from any and all past, present and future claims, demands, obligations, causes of action, liabilities or damages of any kind, known and unknown, arising out of, or related in any way to, the following Engineering Services and Construction Services for the Project, including Contracts or Agreements between the parties concerning these Project Services and payments therefore or any other business dealings, disputes or other causes of action involving these Project Services, to wit: 1) West Side Concrete Barrier Rails and Decorative Treatments; 2) West Side Ornamental Fence and Connections; 3) Northwest Concrete Barrier Rail Transitions; 4) Sidewalk in all four quadrants of the North Ohio/Pacific Intersection; 5) Bridge Approach Sidewalk and Stainless Steel Tread Plates; 6) All potential artistic issues, including, but not limited to, the entire Decorative Texturetop sidewalk surfacing; 7) Any and all other Project defects or deficiencies, including but not limited to construction and/or material defects or deficiencies, known or unknown, discovered or undiscovered, or which may evidence themselves following the effective date of this wsabeop0101056883 v.1 10 agreement on the specific elements of remedial construction identified in items numbered 1 through 6 above; 8) Any and all other project defects or deficiencies, including but not limited to construction and/or material defects or deficiencies in any other areas of the project not identified in numbers 1 through 6 above which have been discovered and identified in or which could have otherwise been reasonably discoverable by CTL and/or George Butler Associates, Inc. in and associated with inspection reports prepared by them in connection with the project, which reports are stipulated to be reasonable inspections of the Project as of the respective dates of those reports which are incorporated herein by reference. (the "release matters"). 9 The Parties hereto expressly exclude from the terms and conditions of this Release and Settlement Agreement only those Project defects or deficiencies including construction and/or material defects or deficiencies not identified in 1 through 8 above, which as of the effective date of this Agreement were not evident to the reasonable inspection of CTL and GBA, and which are latent defects not ascertainable by reasonable inspection. EXPRESS ACKNOWLEDGEMENTS, REPRESENTATIONS AND WARRANTIES. 1) The Settling Parties expressly acknowledge and agree that the Release set forth hereinabove is a general release of the matters described above. In that context, the Settling Parties expressly waive and assume the risk of any and all claims for damages that exist as of this date, but of which they do not know or suspect to exist, whether through ignorance, oversight, error, negligence or otherwise and which, if wsabeop0101056883 v.1 11 known, would materially affect their decision to enter into this Settlement Agreement/Release. 2) Settling Parties further agree to accept the promises, payments and performance as specified herein as a complete compromise of matters involving disputed issues of laws and fact. The Settling Parties assume that the facts or law may be other than what they believe. 3) The Settling Parties and each of them expressly represent and warrant that each has relied upon its own knowledge of the facts and the advice of its own attorney concerning the consequences of this Settlement Agreement and Release; and that the signors of this Settlement Agreement and Release are of legal age, legally competent to execute this Agreement/Release and have full authority to sign this Agreement/Release for the purposes of irrevocably binding the entity for whom they are signing. The Settling Parties further warrant that no promise or inducement has been offered, except as set forth herein, and that this Settlement Agreement and Release is executed without reliance upon any statement or representation by any other party, or any alleged duty or obligation of the other party to provide information concerning the nature and extent of damages and/or any legal liability whatsoever. 4) The Settling Parties expressly acknowledge and agree that the purpose and effect of this Settlement Agreement and Release is to fully and forever resolve all claims, disputes and causes of action relating to the Release Matters and that none of the Settling Parties, either jointly or separately, will pursue the other for any claim, cause of action, or complaint relating in any way to the Release Matters being released herein. wsabeop0101056883 v.1 12 5) The Settling Parties expressly acknowledge and agree that the terms of this Settlement Agreement and Release are contractual in nature and not merely a recital. NO ADMISSION OF LIABILITY The Settling Parties agree that entering into this Settlement Agreement/Release, its performance, and the payment of the settlement amount hereunder is not an admission of liability by any party and that such liability is expressly denied. Each of the Settling Parties hereto further stipulate that each worked with the other in connection with the Project, that these certain disputes arose as reflected herein and that they have amicably resolved these disputes by this written agreement. City and Wilson further stipulate that for many years prior to the dispute settled hereby City and Wilson successfully worked together on many projects, have enjoyed and intend to continue to enjoy an excellent, good faith professional relationship. ATTORNEYS' FEES The Settling Parties hereto shall bear all of their own attorneys' fees, costs and expenses incurred. -to date arising out of or related to this Settlement Agreement and Release, the Release matters, or in any other way incurred arising out of or related to these disputes and this agreement. ENFORCEMENT OF AGREEMENT In the event of a material breach of this Settlement Agreement/Release or other dispute regarding the enforcement or interpretation of this Settlement Agreement/Release, the prevailing party or parties shall be entitled to recover their reasonable attorneys' fees, costs and expenses from the non -prevailing party. wsabeop0101056883 v.1 13 GOVERNING LAW This Settlement Agreement/Release shall be construed and interpreted in accordance with the laws of the State of Kansas without regard to its principles of conflicts of laws. Because each of the parties and their respective attorneys have reviewed, revised and negotiated, or had the opportunity to review, revise or negotiate, the terms, conditions and language of this Settlement Agreement/Release, the rule of construction that ambiguities are to be resolved against the drafting party shall not apply. INTEGRATION This Settlement Agreement/Release contains the entire agreement between the Settling Parties with regard to the matters set forth herein and shall be conclusive and binding upon each of them and inure to the benefit of any one of their successors or assigns. MODIFICATION This Settlement Agreement/Release may not be amended or modified except in writing executed by all of the parties hereto. FURTHER ASSURANCES Settling Parties agree to the good faith, timely and proper performance of their obligations herein; to execute and deliver such further documents, instruments and other agreements as are necessary or convenient, and to do such other acts as may be reasonably necessary to carry out the terms and purposes of this Settlement Agreement/Release. COUNTERPARTS This Settlement Agreement/Release may be executed in one or more counterparts, including facsimile counterparts, and all so executed shall constitute one agreement, wsabeop0101056883 0 14 binding on each of the Settling Parties hereto, even though all parties are not signatories to the original or the same counterpart. Any counterpart of this Settlement Agreement/Release, which has attached to it separate signature pages, which altogether contain the signatures of all parties, shall for all purposes be deemed a fully executed agreement. CITY OF SALINA, KANSAS WILSON & COMPANY ENGINEERS AND ARCHITECTS By. y: AAA Capaci y: M. Luci Larson, Mayor Ca a Ity. -Pies�� t GHQ Date: September 22, 2009 Date: 0q- Z q -09 KING CONSTRUCTION COMPANY, INCORPORATED By: Capacity: Date: C1 A e7 In Cr Approved as to form only: Attorney for Wilson & Company Engineers and Architects wsabeop0 101056883 v.1 15 cln�n6 Don ill Attorney for King Construction Company, Incorporated wsabeop0101056883 v.1 16 EXHIBIT A TO SETTLEMENT AOREE DEPARTMENT OF PUBLIC WORKS. Michael Fraser, Director of Public Worcs Daniel Static, PE., City Engineer Jim Teutsch, Operations Manager 300 West Ash -;RO. Box 736 Salina, Kansas 67402-0736 May 2, 2009 Kansas Department of Transportation 3825 S. Yost Rd Salina, KS 67401 RE:- Sidewalk Replacement on North .Ohio Street Dear Jean Istas, TELEPHONE - (785) 309-5725 FAX - (785} 309-5713 TOD , (785} 309-5747 L: mike.frasff@salina.org dan.st salina.ora tc W E lTE • a-ks: ov EXHIBIT,B TO SETTLEMENT AGREEMENT The City of Salina is letting you know of sidewalk that needs to be replaced on the North Ohio Project #00-1248. The areas of sidewalk needing to be replaced do not meet ADA 2% cross slope compliance. Listed below are the. Locations and lengths that we would like addressed: Location • Light Pole #1-2 • Light Pale #2 • Light Post #4 • Light Post #5 • Light Post #7 • Light Post #8 • Light Post #9 • Light Post #10 • Light Post #11-14 • Light Post #14 • Light Post 415-16 • Light Post #16 • Light. Past #53-56 • Light Post #58-59 • Light Post #80 Problem Length remarks Humped Sidewalk 30 LF Over 2% Cross -Slope 20 LF Start of South Landscaping Over 2% Cross -Slope 20 LF Over 2% Cross -Slope 20 LF Over 2% Cross -Slope 25 LF Humped Sidewalk 10 LF Over 2% Cross -Slope 35 LF Over 2% Cross -Slope 20 LF Humped Sidewalk 106 LF Over 2% Cross -Slope 10 LF Humped Sidewalk 25 LF Edge is Humped Over 2% Cross -Slope 18 LF South Side of Bridge Deck Over 2% Cross -Slope 144 LF North Side of Bridge Deck Humped Sidewalk 30 LF Over'2% Cross -Slope 10 LF Far North near Landscaping 523 LF Total If you would like to meet on site or have any questions regarding the repairs requested please call me at (785) 309-5725. Sincerely, Brent Buchwald Construction Coordinator Our Mission is to Build and Maintain a Clean, Safe Community I WA C 10 &CO',11RANY SHCET i 2 i&. i`q KININ r N Sm now, } s v to i ��x�0'tt=r A r'�s�., •'•� „A �°,s,��," � spm .. �'��. Y4En, � �e*W .e.