The URL can be used to link to this page

Home My WebLink About7 RW Beck Settlement Agenda Item # 7 (P irRUCKEE DONNER CONSENT To: Board of Directors From: Stephen Hollabaugh Date: April 21, 2010 Subject: Approve Settlement with R.W. Beck 1. WHY THIS MATTER IS BEFORE THE BOARD This item involves the mediated settlement with R.W. Beck Inc. 2. HISTORY Truckee Donner Public Utility District ("TDPUD") entered into a Consulting Services Agreement dated November 7, 2007 with R.W. Beck ("Beck") for the design and modification of the Tahoe Donner Substation and Donner Lake Substation. A dispute arose between the parties concerning the performance by Beck and disputes concerning amounts due as a result of the performance by Beck of work for TDPUD in connection with the consulting agreement. A mediation occurred on March 22, 2010 and was attended by General Manager, Michael Holley; District Electrical Engineer, Joe Horvath; and District Counsel, Steve Gross. 3. NEW INFORMATION The mediation between TDPUD and Beck on March 22, 2010 resulted in a "Settlement and Compromise Agreement". It was the desire of the parties to fully and finally resolve any and all disputes between them in connection with the Consulting Services Agreement. The Settlement and Compromise Agreement is comprised of the following: • Subject to approval of the Governing Board of TDPUD, and solely in compromise of disputed claims, TDPUD agrees to pay Beck the sum of $92,500 in consideration of the terms and conditions of this Agreement. The original amount requested from R.W. Beck was $182,500. • In return for the settlement payment and compromises reached in connection therewith, the parties release each other from any and all claims, known and unknown, that either may have against the other. Beck agrees that TDPUD shall have access to all existing Donner Lake Substation records for use by TDPUD and TDPUD shall be responsible to determine the appropriate use of such project documents. Each Party shall bear and be responsible for their own costs in connection wit the dispute, including attorney's fees. Release of Claims TDPUD Board Approval: It is understood that this Agreement, and the payment, releases and other consideration and terms set forth in this Agreement, are expressly conditioned on the formal approval by the governing board of TDPUD • The Settlement Payment shall be tendered within two weeks of such approval 4. FISCAL IMPACT The Settlement and Compromise Agreement between Truckee Donner PUD and R.W. Beck consists of $24,000 from Donner Lake Substation project (facilities fees) and $68,500 Tahoe Donner Substation project (Rates) for a total of $92,500 total. There is sufficient money within the Electric Facilities Fees and FY2010 Budget to cover these costs. 5. RECOMMENDATION Authorize the Board to approve the Settlement and Compromise Agreement between Truckee Donner Public Utility District and R.W. Beck, Inc. - -- A17- Stephen Hollabaugh ichael D. Holley Assistant General Manager General Manager SETTLEMENT AND COMPROMISE AGREEMENT This Agreement ("Agreement") is entered into by and between the Truckee Donner Public Utility District("TDPUD") and R. W. Beck, Inc. ("Beck") (Collectively, the "Parties"). This Agreement shall be deemed to be effective as of March 22, 2010. This Agreement arises out of a dispute between the Parties concerning the performance by Beck of and disputes concerning amounts due and owing as a result of the performance by Beck of work for TDPUD in connection with a Consulting Services Agreement dated November 7, 2007 (the "CSA"). It is the desire of the Parties to fully and finally resolve any and all disputes between them in connection with the CSA. Subject only to approval by the Governing Board of TDPUD, and solely in compromise of disputed claims, TDPUD agrees to pay Beck the sum of Ninety Two Thousand Five Hundred Dollars ($92,500.00) (the "Settlement Payment") in consideration of the terms and conditions of this Agreement In return for the Settlement Payment and compromises reached in connection therewith, the Parties release each other from any and all claims, known and unknown, that either may have against the other as more fully set forth below. Beck agrees that TDPUD shall have access to all existing Donner Lake Sub-station records for use by TDPUD or its designees on the condition that TDPUD or its designees shall be solely responsible to determine the appropriate use of such project documents. Beck shall provide TDPUD with all reports, plans specifications, field data and other project documentation prepared as of the date of this Agreement on electronic media and shall provide all project drawings in AutoCAD format within 10 days of receipt of the Settlement Payment. It is understood that this Agreement, and the releases, compromises and payments called for by this Agreement resolves, without limitation, any and all claims that TDPUD may have with respect to the billing and time-keeping practices of Beck as not being in conformance with Beck's professional obligations and, reciprocally, resolves any and all claims of Beck concerning TDPUD's payment obligations. Each Party shall bear and be responsible for their own costs in connection with the dispute, including attorney's fees. 1 2. Release of Claims (a) For and in consideration of the mutual promises and consideration set forth in this Agreement, the sufficiency of which is hereby acknowledged, each party, on behalf of him or her self, and his or her heirs, successors, assigns, attorneys and agents, hereby releases and forever discharges the others, including each and every of his or her officers, directors, board members, attorneys, insurers, agents, employees, beneficiaries and assigns, from any and all claims, demands, debts, duties, obligations, promises, liabilities, damages, accounts, payments, liens, acts, costs, expenses, sums of money, suits, dues, actions and/or causes of action both in law and in equity, of any kind or nature whatsoever whether known or unknown, matured or unmatured, suspected or unsuspected, which any Party ever had, now has or may have against the other related to or arising out of the CSA (hereinafter collectively referred to and called "Claim" or "Claims"). (b) This Agreement shall be effective as a full and final accord and satisfaction and general release of any and all Claims that any Party may have against any other, except claims for breach of this Agreement. (c) The Parties hereto expressly waive and relinquish any rights and benefits which they may have under Section 1542 of the Civil Code of California which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." 3. TDPUD Board Approval. It is understood that this Agreement, and the payment, releases and other consideration and terms set forth in this Agreement, are expressly conditioned on formal approval by the governing board of TDPUD. Counsel for TDPUD shall cause the matter to be calendared for TDPUD Board consideration as soon as practicable, such time estimated to be in late April, 2010. The Settlement Payment shall be tendered within two weeks of such approval. 4. Entire Agreement This Agreement constitutes the entire agreement relating to the subject matter hereof 2 between the Parties. Each Party acknowledges that there is no representation, inducement, promise or agreement which has been made, orally or otherwise, by the other party, or anyone acting on behalf of the other party, concerning the terms or conditions of this Agreement which is not expressly embodied in this Agreement. 5. Additional Form of Agreement Should the Parties require any additional form of settlement agreement and or release, such shall be prepared by the requesting party and submitted for approval as to form by counsel for the other. It is understood that the inclusion of this provision of this Agreement is solely for the administrative convenience of the Parties. No additional form of agreement or release shall change any material term of this Agreement. Neither the inclusion of this provision nor the failure to propose, agree upon or execute any additional form of agreement or release as is permitted pursuant to this paragraph shall vitiate the force and effect of this Agreement as a valid, binding and enforceable settlement agreement in accordance with its own terms. Any dispute concerning the terms of such additional form of document shall be submitted to Richard L. Gilbert, who presided over the mediation of the Parties' dispute, for final and binding determination after informal hearing. 6. Counterparts This Agreement may be executed in one or more counterparts, including by facsimile or electronic,transmission, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. By their signatures below, the Parties and their Counsel evidence their understanding of and agreement to each of the foregoing terms and conditions. R. . eck, Inc. Truckee-Donner PUD By: � By: 601 A d as to form and content: Ronald Leaders, Counsel for Beck Steven C. Gross, Counsel for TDPUD 3