Ordinance No. 10,082ORDINANCE NO. 10,082
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING CHANGE ORDER NO. 4 WITH MORGANTI
TEXAS, INC., FOR THE RENOVATION AND EXPANSION OF THE
WAYNE GRAY SPORTS COMPLEX; AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN, THE SUM OF ELEVEN THOUSAND FOUR
HUNDRED TWENTY -EIGHT AND 41/100 DOLLARS ($11,428.41);
MAKING OTHER PROVISIONS RELATED THERETO; AUTHORIZING
AND DIRECTING THE CITY MANAGER AND CITY CLERK TO EXECUTE
AND ATTEST TO A RELEASE AND SETTLEMENT AGREEMENT WITH
MORGANTI TEXAS, INC., REGARDING THE RENOVATION AND
EXPANSION OF THE WAYNE GRAY SPORTS COMPLEX; AUTHORIZING
PAYMENT IN THE AMOUNT OF ONE HUNDRED THOUSAND AND
N01100 DOLLARS ($100,000.00); AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council does hereby, authorize Change Order No. 4 with
Morganti Texas, Inc., for the renovation and expansion of the Wayne Gray Sports Complex. A
copy 'of said change order is attached hereto, marked Exhibit "A," and made a part hereof for all
intents and purposes.
Section 2: That the City Council of the City of Baytown hereby authorizes the
payment of ELEVEN THOUSAND FOUR HUNDRED TWENTY -EIGHT AND 41/100
DOLLARS ($ 11,428.41) to Morganti Texas, Inc., for Change Order No. 4 for the renovation and
expansion of the Wayne Gray Sports Complex.
Section 3: That pursuant to the provisions of Texas Local Government Code
Annotated § 252.048, the City Manager is hereby granted general authority to approve any
change order involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND
AND N01100 DOLLARS ($25,000.00) or less, subject to the provision that the original contract
price may not be increased by more than twenty -five percent (25 %) or decreased by more than
twenty -five percent (25 %) without the consent of the contractor to such decrease.
Section 4: That the City Council of the City of Baytown hereby authorizes and
directs the City Manager to execute and the City Clerk to attest to a Release and Settlement
Agreement with Morganti Texas, Inc., regarding the renovation and expansion of the Wayne
Gray Sports Complex. A copy of such agreement is attached hereto as Exhibit "B" and
incorporated herein for all intents and purposes.
Section 5: That the City Council of the City of Baytown authorizes payment of an
amount of ONE HUNDRED THOUSAND AND NO/ 100 DOLLARS ($100,000.00), pursuant to
® the agreement identified in Section 1 hereof.
® Section 6: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 9`h day of June, 2005.
CALVIN MUNDINGER, Mayor
ATTEST:
GAMY W. SM? NTH, City Clerk
APPROVED AS TO FORM:
4'4�14L / %Z-
ACIO RAMIREZ, SR., ty Attorney
RAKarenWiles\City Counci1\0rdinances\2005Vune 9\ Release& Settiet cent Agreement4WayneGraySportsComplexCombinedwi thChangeOrder4.doc
u
CITY OF BAYTOWN
® Change Order No. 4
Wayne Gray Sports Complex
BAYI'OAAN
June 3, 2005
Brief Description of Changes:
This change order is necessitated due to the architect not incorporating the requested changes by the City Engineer
cluing the review process.
Add or Delete
Item #
items:
Descri tion
Unit
I Quantity
Unit Price
Total
Reconstructed inverted parking lot and drain
1
to crowned roadway with two additional inlets.
LS
1
$11,428.41
$ 11,428.41
Q 11.428.41
INle -T
Contract Summary:
)ri final Contract Price $2,143,000.00
:b 858.90
'revious Change Orders
'his Change Order
tevised Contract Price $ 2.651,287.31
Ori inal Contract Duration - Calendar Days
Previous Time Extensions 0 ul
This Chancie Order
- Caienoar uays
Contractor Date
Director of Finance Date
r1
u
EXHIBIT A
Director of Engineering Date
City Manager Date
RELEASE AND SETTLEMENT AGREEMENT
® STATE OF TEXAS §
COUNTY OF HARRIS §
WHEREAS, the Parties to this Release and Settlement Agreement ( "Release" or "Agreement ") are
Morganti Texas, Inc., hereinafter referred to -as "Contractor," and the City of Baytown, Texas, along with
its officers, agents, and employees, hereinafter collectively, whether singular or plural, referred to as
"City"; and Contractor and City being collectively referred to as the "Parties "; and
WHEREAS, Contractor entered into an agreement with the City for the construction of the Wayne
Gray Sports Complex (the "Project ") on the 10`h day of June, 2004 ( "Construction Contract "); and
WHEREAS, Contractor submitted Change Proposal Request No. 13 for additional work and/or
delay damages claiming that it is owed TWO HUNDRED SEVENTY -NINE THOUSAND EIGHT
HUNDRED SEVENTY -ONE AND NO /100 DOLLARS ($279,871.00) from City; and
WHEREAS, the Contractor wishes to dispose of the entire controversy and dispute between it and
the City, including all claims and causes of action of any kind that currently exist or that may exist in the
future that relate in any way to the Project; and
WHEREAS, the Contractor recognizes that there may be claims or injuries arising out of the
Project that are unknown at the time of execution of this Agreement, or that may arise in the future.
However, the Contractor has negotiated this Agreement in full knowledge of the possibility of additional
claims or injuries, and intends this Agreement to settle and finally dispose of all such claims or injuries
arising out of the Project, whether known "or unknown; and
WHEREAS, mindful of the cost and expense associated with litigation, the Parties have agreed to
compromise and settle the claims on the terms set out in this Agreement; NOW THEREFORE
1.
CONSIDERATION
1.01 From the City. For the consideration expressed in Section 1.02 herein and upon receipt of this
signed Agreement and approval of the same by the City Council, the City shall:
a. pay the Contractor the amount of ONE HUNDRED THOUSAND AND NO 1100
DOLLARS ($100,000.00) on June 10, 2005, which amount is not subject to retainage, and
b. execute Change Order No. 4 in the amount of ELEVEN THOUSAND FOUR HUNDRED
TWENTY -EIGHT AND 41/100 DOLLARS ($11,428.41), which change order is attached
hereto and incorporated herein for all intents and purposes.
1.02 From the Contractor.
is 1.02.01 RELEASE
In consideration of City's payment of ONE HUNDRED
THOUSAND AND NO /100 DOLLARS ($100,000.00) to
Release And Settlement AjZreenient, Page IEMU B
Contractor, the receipt and sufficiency of which is hereby
acknowledged, Contractor does hereby, for its successors, assigns,
personal representatives, heirs, executors, and administrators
release, acquit, and forever discharge, indemnify, and hold
harmless the City from any and all claims, demands, and causes
of action of every kind and character, at common law, statutory
or otherwise, that the Contractor has or might have, known or
unknown, now existing or that might arise hereafter, directly or
indirectly attributable to the Project, including, but not limited
to, delay claims and additional costs necessary to complete the
Project. Contractor understands and agrees that this is a
complete and final release and that it covers claims and injuries
of all types, including claims and injuries that are unknown to the
parties at the time this agreement is made. This release is
irrevocable upon Contractor's receipt of ONE HUNDRED
THOUSAND AND NO /100 DOLLARS ($100,000.00) from the
City.
1.02.02 On or before June 30, 2005, the Contractor in accordance with the Construction
Contract shall finally complete the Project, including all punch list work, including,
but not limited to the asphalt on the walkways and the mortar repairs at the
concession stands.
1.02.03 The Contractor agrees that, for the consideration stated in Section 1.01 hereof, it
shall, upon request of the City Engineer, assist and fully cooperate with the City in
the investigation, negotiation and resolution any. claim that the City may have
against the Architect associated with the Project, including, but not limited to,
providing requested documentation to the City, serving as witness upon request of
the City in any litigation and attending any alternate dispute resolution
proceedings.
II.
PURPOSE
It is expressly understood and agreed that the terms hereof are contractual and not merely recitals
and that the agreements herein contained and the consideration transferred is to compromise doubtful and
disputed claims, avoid litigation, and buy peace, and that no payment made nor releases or other
consideration given shall be construed as an admission of liability, all liability being expressly denied.
III.
ATTORNEY'S PEES
The Parties hereby agree to be responsible for their own attorney's fees as well as any and all other
•costs and expenses incurred in connection with the Contractor's services to and/or on behalf of the City.
Contractor expressly waives any claim to seek attorney's fees under any federal or state authority.
Release And Settlement Agreement, Page 2
IV.
® AGREEMENT READ AND UNDERSTOOD
Contractor represents and warrants that it has been given an opportunity to consider this
Agreement and to be fully advised by the counsel of its choosing regarding the meaning and the effect of
this Agreement, that it relies after consultation with its counsel wholly upon its own judgment, belief, and
knowledge of the nature and extent of the damages alleged and the liability questions involved in the
claim, and covenants that Contractor has not been influenced to any extent whatsoever or induced to enter
into this Agreement in reliance upon any statement, promise or representation of City or any of the other
party.
V.
AUTHORITY
The officer signing on behalf of the Contractor confirms that he has full authority to execute this
Agreement. Furthermore, by his signature hereinbelow, the officer signing on behalf of Contractor
acknowledges that he has read this Agreement, and that he fully understands the same, and that he has
executed the Agreement of its own free will and accord for and on behalf of Contractor. Contractor
further represents and warrants that:
(a) Contractor has not conveyed, transferred, assigned, pledged or otherwise encumbered any
of its rights in the claims and that all of its interests are being completely released and
discharged by this Agreement; and
(b) The officer signing on behalf of the Contractor is of legal age and legally and fully
competent to enter into this Agreement and is doing so only after full understanding of the
meaning and intent of this Agreement and all of its terms.
VI.
ENTIRE AGREEMENT
It is further expressly understood that by entering into this Release, the City makes no admission
of liability of any sort to Contractor, which liability is expressly denied. Instead, this Agreement
represents a full and complete settlement of any and all disputes among the Parties, to resolve once and
for all every disputed claim that Contractor has asserted or could assert against the City. The City has not
agreed to do or omit to do anything not expressly set forth in this Agreement. This Agreement contains
the entire agreement between the Parties and constitutes the complete, final and exclusive embodiment of
their agreement with respect to the subject matter herein. It is expressly understood and agreed that
nothing herein shall relieve either the Contractor from fully performing the Construction Contract in
accordance with its terms and conditions or the City from paying for Change Order No. 4 or the retainage,
subject to the permitted deductions specified in the Construction Contract, which retainage shall not
exceed ONE HUNDRED THIRTY -ONE THOUSAND NINE HUNDRED NINETY -TWO AND 95/100
DOLLARS (S 131,992.95).
VII.
SEVERABILITY
®If any provision, section, exception, subsection, paragraph, sentence, clause or phrase of this
Agreement shall for any reason be held unconstitutional, void or invalid, such invalidity shall not affect
the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, and
to this end all provisions of this Agreement are declared to be severable.
Release And Settlement Agreement. Page 3
VIII.
EFFECTIVE DATE
® This Release shall become effective and enforceable immediately upon its execution by City and
shall thereafter remain in effect.
C]
IX.
CHOICE OF LAW AND VENUE
This Release is made according to the laws of the State of Texas and shall in all respects be
interpreted and construed in accordance with and governed by the laws of the State of Texas, regardless
of the place of its execution or performance. The place of making and the place of performance for all
purposes shall be Baytown, Harris County, Texas.
X.
HEADINGS
The captions of the various articles of this.Agreement are -for convenience and ease of reference
only and do not define, limit, augment or describe the scope, content or intent of this Agreement or of any
part or parts of this Agreement.
XI.
AMBIGUITIES
In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for
or against any party hereto on the basis that such party did or did not author the same.
Signed on this the day of
2005.
CONTRACTOR
Morganti Texas, Inc.
Signature
Printed Name
Title
Signed on this the day of 12005.
Release And Settlement Agreement, Page 4
CITY
City of Baytown
GARY JACKSON, City Manager
0
•
ATTEST:
GARY W. SMITH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me,
public, on this day
Morganti Texas, Inc.
personally appeared ,
the undersigned notary
of
known to me;
proved to me on the oath of ; or
proved to me through his current
{description of identification card or other document issued by the federal government or
any state government that contains the photograph and signature of the acknowledging
person)
(check one)
to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed; that he executed the same as his
free and voluntary act and deed after having it fully explained to him, and after having read it fully, and
after realizing the effect thereof to be a full and final release and discharge of the City of Baytown and its
officers, agents, and employees for any matter or thing dealt with in the foregoing instrument; and that the
same was executed by its without any threat, force, fraud, duress, or
representation of any kind by any person whomsoever; and that the said at
the time of execution of the release was capable of understanding the character of his acts and deeds and
was in complete charge of all of his faculties and capable of executing this instrument and of
understanding the significance of his acts.
SUBSCRIBED AND SWORN before me on this _ day of
R: \Karen \Fi Ies\ Legal\ Releases \Release&, DisbursementAgreement4Morganti2 .doc
Release And Settlement Agreement, Page 5
2005.
Notary Public in and for the State of
Texas
CITY OF BAYTOWN
Change Order No. 4
BAYTOT N Wayne Gray Sports Complex
"111111.111gTVV 1\I June 3, 2005
Brief Description of Changes:
This change order is necessitated due to the architect not incorporating the requested changes by the City Engineer duing the
review process.
Add or Delete Items:
Item# Description Unit Quantity Unit Price Total
Reconstructed inverted parking lot and drain to
1 crowned roadway with two additional inlets. LS 1 $11,428.41 $ 11,428.41
Total $ 11,428.41
Contract Summary:
Original Contract Price $2,143,000.00
Previous Change Orders $ 496,858.90
This Change Order $ 11,428.41
Revised Contract Price $ 2,651,287.31
Original Contract Duration-Calendar Days 300
Previous Time Extensions 0
This Change Order 0
Revised C ntrac uration-Calend r D ys 300
ce
Co tractor ate Director of Engi ring /Bate
Director of Finance Da a City Manager Date
Cit
RELEASE AND SETTLEMENT AGREEMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
WHEREAS, the Parties to this Release and Settlement Agreement ("Release" or"Agreement") are
Morganti Texas, Inc., hereinafter referred to as "Contractor," and the City of Baytown, Texas, along with
its officers, agents, and employees, hereinafter collectively, whether singular or plural, referred to as
"City"; and Contractor and City being collectively referred to as the "Parties"; and
WHEREAS, Contractor entered into an agreement with the City for the construction of the Wayne
Gray Sports Complex(the "Project") on the 10th day of June, 2004 ("Construction Contract"); and
WHEREAS, Contractor submitted Change Proposal Request No. 13 for additional work and/or
delay damages claiming that it is owed TWO HUNDRED SEVENTY-NINE THOUSAND EIGHT
HUNDRED SEVENTY-ONE AND NO/100 DOLLARS ($279,871.00) from City; and
WHEREAS, the Contractor wishes to dispose of the entire controversy and dispute between it and
the City, including all claims and causes of action of any kind that currently exist or that may exist in the
future that relate in any way to the Project; and
WHEREAS, the Contractor recognizes that there may be claims or injuries arising out of the
Project that are unknown at the time of execution of this Agreement, or that may arise in the future.
However, the Contractor has negotiated this Agreement in full knowledge of the possibility of additional
claims or injuries, and intends this Agreement to settle and finally dispose of all such claims or injuries
arising out of the Project, whether known or unknown; and
WHEREAS, mindful of the cost and expense associated with litigation, the Parties have agreed to
compromise and settle the claims on the terms set out in this Agreement;NOW THEREFORE
I.
CONSIDERATION
1.01 From the City. For the consideration expressed in Section 1.02 herein and upon receipt of this
signed Agreement and approval of the same by the City Council, the City shall:
a. pay the Contractor the amount of ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000.00) on June 10, 2005, which amount is not subject to retainage, and
b. execute Change Order No. 4 in the amount of ELEVEN THOUSAND FOUR HUNDRED
TWENTY-EIGHT AND 41/100 DOLLARS ($11,428.41), which change order is attached
hereto and incorporated herein for all intents and purposes.
1.02 From the Contractor.
1.02.01 RELEASE
In consideration of City's payment of ONE HUNDRED
, THOUSAND AND NO/100 DOLLARS ($100,000.00) to
Release And Settlement Agreement,Page 1
1 �
Contractor, the receipt and sufficiency of which is hereby
acknowledged, Contractor does hereby, for its successors, assigns,
personal representatives, heirs, executors, and administrators
release, acquit, and forever discharge, indemnify, and hold
harmless the City from any and all claims, demands, and causes
of action of every kind and character, at common law, statutory
or otherwise, that the Contractor has or might have, known or
unknown, now existing or that might arise hereafter, directly or
indirectly attributable to the Project, including, but not limited
to, delay claims and additional costs necessary to complete the
Project. Contractor understands and agrees that this is a
complete and final release and that it covers claims and injuries
of all types, including claims and injuries that are unknown to the
parties at the time this agreement is made. This release is
irrevocable upon Contractor's receipt of ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($100,000.00) from the
City.
1.02.02 On or before June 30, 2005, the Contractor in accordance with the Construction
Contract shall finally complete the Project, including all punch list work, including,
but not limited to the asphalt on the walkways and the mortar repairs at the
concession stands.
1.02.03 The Contractor agrees that, for the consideration stated in Section 1.01 hereof, it
shall, upon request of the City Engineer, assist and fully cooperate with the City in
the investigation, negotiation and resolution any claim that the City may have
against the Architect associated with the Project, including, but not limited to,
providing requested documentation to the City, serving as witness upon request of
the City in any litigation and attending any alternate dispute resolution
proceedings.
II.
PURPOSE
It is expressly understood and agreed that the terms hereof are contractual and not merely recitals
and that the agreements herein contained and the consideration transferred is to compromise doubtful and
disputed claims, avoid litigation, and buy peace, and that no payment made nor releases or other
consideration given shall be construed as an admission of liability, all liability being expressly denied.
III.
ATTORNEY'S FEES
The Parties hereby agree to be responsible for their own attorney's fees as well as any and all other
costs and expenses incurred in connection with the Contractor's services to and/or on behalf of the City.
Contractor expressly waives any claim to seek attorney's fees under any federal or state authority.
•
Release And Settlement Agreement,Page 2
IV.
AGREEMENT READ AND UNDERSTOOD
Contractor represents and warrants that it has been given an opportunity to consider this
Agreement and to be fully advised by the counsel of its choosing regarding the meaning and the effect of
this Agreement, that it relies after consultation with its counsel wholly upon its own judgment, belief, and
knowledge of the nature and extent of the damages alleged and the liability questions involved in the
claim, and covenants that Contractor has not been influenced to any extent whatsoever or induced to enter
into this Agreement in reliance upon any statement, promise or representation of City or any of the other
party.
V.
AUTHORITY
The officer signing on behalf of the Contractor confirms that he has full authority to execute this
Agreement. Furthermore, by his signature hereinbelow, the officer signing on behalf of Contractor
acknowledges that he has read this Agreement, and that he fully understands the same, and that he has
executed the Agreement of its own free will and accord for and on behalf of Contractor. Contractor
further represents and warrants that:
(a) Contractor has not conveyed, transferred, assigned, pledged or otherwise encumbered any
of its rights in the claims and that all of its interests are being completely released and
discharged by this Agreement; and
(b) The officer signing on behalf of the Contractor is of legal age and legally and fully
competent to enter into this Agreement and is doing so only after full understanding of the
meaning and intent of this Agreement and all of its terms.
VI.
ENTIRE AGREEMENT
It is further expressly understood that by entering into this Release, the City makes no admission
of liability of any sort to Contractor, which liability is expressly denied. Instead, this Agreement
represents a full and complete settlement of any and all disputes among the Parties, to resolve once and
for all every disputed claim that Contractor has asserted or could assert against the City. The City has not
agreed to do or omit to do anything not expressly set forth in this Agreement. This Agreement contains
the entire agreement between the Parties and constitutes the complete, final and exclusive embodiment of
their agreement with respect to the subject matter herein. It is expressly understood and agreed that
nothing herein shall relieve either the Contractor from fully performing the Construction Contract in
accordance with its terms and conditions or the City from paying for Change Order No. 4 or the retainage,
subject to the permitted deductions specified in the Construction Contract, which retainage shall not
exceed ONE HUNDRED THIRTY-ONE THOUSAND NINE HUNDRED NINETY-TWO AND 95/100
DOLLARS ($131,992.95).
VII.
SEVERABILITY
If any provision, section, exception, subsection, paragraph, sentence, clause or phrase of this
Agreement shall for any reason be held unconstitutional, void or invalid, such invalidity shall not affect
the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, and
to this end all provisions of this Agreement are declared to be severable.
Release And Settlement Agreement,Page 3
VIII.
EFFECTIVE DATE
This Release shall become effective and enforceable immediately upon its execution by City and
shall thereafter remain in effect.
IX.
CHOICE OF LAW AND VENUE
This Release is made according to the laws of the State of Texas and shall in all respects be
interpreted and construed in accordance with and governed by the laws of the State of Texas, regardless
of the place of its execution or performance. The place of making and the place of performance for all
purposes shall be Baytown, Harris County, Texas.
X.
HEADINGS
The captions of the various articles of this Agreement are for convenience and ease of reference
only and do not define, limit, augment or describe the scope, content or intent of this Agreement or of any
part or parts of this Agreement.
XI.
AMBIGUITIES
In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for
or against any party hereto on the basis that such party did or did not author the same.
Signed on this the 6 day of Nie)ne , 2005.
CONTRACTOR
Mor: �ti Tea s, Inc.
Signature
POI," 1J
Printed Name I�
G-Y P
Title
Signed on this the itot4 day of Ju , 2005.
CITY
City o B yt
GARY JAC N, City Manager
Release And Settlement Agreement,Page 4
ATTEST:
GARYeWV. SMITH�i Clerk
_
APPROVED_AS-,TO FORM:
IGNACIO RAMIREZ, SR., City Attorney.
Karen L. Horner, first Assisi and, City lc+o r neY
STATE OF TEXAS §
§
COUNTY OF HARRIS §
Before me, c . , the ersigned notary
public, on this day personally appeared \ peAL1&�A, cE of
Morganti Texas, Inc.
`/ known to me;
proved to me on the oath of ; or
proved to me through his current
{description of identification card or other document issued by the federal government or
any state government that contains the photograph and signature of the acknowledging
person}.
(check one)
to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed; that he executed the same as his
free and voluntary act and deed after having it fully explained to him, and after having read it fully, and
after realizing the effect thereof to be a full and final release and discharge of the City of Baytown and its
officers, agents, and employees for any matter or thing dealt with in the foregoing instrument; and that the
same was executed by its .V .1�• without any threat force, �aud, duress, or
representation of any kind by any person whomsoever; and that the said .�.. at
the time of execution of the release was capable of understanding the character of his acts and deeds and
was in complete charge of all of his faculties and capable of executing this instrument and of _
understanding the significance of his acts.
SUBSCRIBED AND SWO lzeoxe me on thi &—da of .>L , 2005.
,40474,, DEBBIE ELLIS .
<FRFI MY COMMISSION EXPIR
Itel AUGUST 26,2006 LC) �
otary Public in and for the State of
Texas
R:\Karen\Files\Legal\Rel eases\Re lease&DisbursementAgreement4Morganti 1.doc
Release And Settlement Agreement,Page 5