SETTLEMENT AGREEMENT - MCSC CRIMINAL TOWER.PDF

SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (this "Agreement") is made and
entered into May , 2015, by and between Maricopa County, a political subdivision of the
State of Arizona and an independent body politic and corporate entity (the "County"), and
Gilbane Building Company, a Rhode Island corporation, ("Gilbane").
RECITALS
A. This Agreement concerns the public construction project for the new Maricopa
County Superior Court Criminal Tower facility at 175 West Madison Street in Phoenix, Arizona.
The 14 story facility, commonly referred to as the "Court Tower" by those involved with the
project, was built to serve as the primary criminal justice facility for the Maricopa County
Superior Court system which houses court rooms, judicial chambers, legal and administrative
offices, juror registration and waiting areas, secured temporary detention areas and a cafeteria.
The project was developed and constructed on a construction manager at risk
("CMR")/guaranteed maximum price ("GMP") basis. The project was phased and budgeted
through the execution of multiple GMP contracts that corresponded to the sequence of
construction. The approved budget for the project was just under $343,000,000. Gilbane
Building Company was retained to act as the CMR for the project. The facility was built
between 2008 and 2011 with substantial completion occurring November 11, 2011 and owner
occupancy beginning on February 14, 2012.
B. Disputes have arisen between the County and Gilbane concerning sums due to
Gilbane under the July 23, 2008 Construction Contract for Construction Manager at Risk Project
("the Construction Contract") and the related GMPs concerning the Court Tower facility.
Specifically, Gilbane has asserted entitlement to payment in excess of $1,200,000, exclusive of
interest, for retainage held by the County. This Agreement includes all claims for payment under
any payment application submitted by Gilbane and any change orders or contract change
authorizations executed by the parties.
C. Disputes have also arisen between the County and Gilbane concerning various
alleged workmanship issues and related remediation or repair costs, either incurred or projected,
allegedly arising from the work performed by Gilbane's subcontractors and vendors on the Court
Tower project. The County has disputed certain charges and has claimed entitlement to set-offs
against unpaid pay applications equal to its claimed remediation or repair costs or projected
repair costs to address alleged workmanship deficiencies at the Court Tower facility. The
County has alleged that actual and projected damages claimed by the county would exceed
$1,200,000. Gilbane has disputed the scope and necessity of the repairs proposed by the County.
This Agreement includes any claims to reimbursement or set-offs for actual or projected
damages assertable by the County. This Agreement also includes any alleged deficiencies
relating to the mechanical systems at the Court Tower facility, including the fire sprinkler
system.
D. The County and Gilbane have reached an agreement to compromise, settle,
release and discharge forever all disputes, controversies and claims between them relating to the
Construction Contract.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants, terms,
conditions and agreements hereinafter set forth, the parties hereto agree as follows:
1. The above recitals are incorporated into this Agreement as true and correct.
2. The Effective Date of this Agreement cannot be fixed until after this Agreement is
formally approved by the Maricopa County Board of Supervisors in an open public meeting. If
this Agreement is executed after such formal approval, the date of the later executed signature
will constitute the Effective Date of the Agreement.
3. In addition to all sums that the County has thus far paid to Gilbane under the
Contract, the County shall pay Gilbane the sum of eight Hundred and Five Thousand dollars
($805,000.00) as consideration for all unpaid fees and in satisfaction of all claims for payment
concerning the Court Tower project. Payment shall occur within thirty (30) days of the Effective
Date of this Agreement.
4. The County has provided Gilbane with a letter dated May 2, 2012 stating that the
Work was completed within the scheduled time and on budget, among other things. That letter is
attached hereto as Exhibit 1. A copy of Exhibit 1 will be provided to anyone requesting a
reference or recommendation concerning Gilbane's work on the Court Tower project. All such
inquiries will be referred to Deputy County Manager, Joy Rich. In addition to providing a copy
of Exhibit 1, Ms. Rich or her successor will use the content of that letter as a script for providing
information about Gilbane's work on the Court Tower project. Neither Ms. Rich nor any other
management level administrator currently employed by the County was involved with the Court
Tower project during construction. Therefore, nothing beyond the scope of Exhibit 1 will be
discussed with anyone who inquires about Gilbane's performance on the Court Tower project.
The disputed issues referenced herein and the disputes mutually submitted to ADR by the parties
will not be discussed with anyone seeking a reference or recommendation relating to Gilbane.
5. The authorized representatives who execute this Agreement on behalf of the
respective parties warrant, represent and covenant that the person executing this Agreement is
duly authorized to do so and thereby binds the respective party and that fulfillment of the terms
and conditions of this Agreement will not conflict with or result in the breach of any of the terms
or conditions, or constitute a default under, any agreement, instrument or undertaking to which
either party hereto is a party.
6. The parties mutually agree to, and do hereby, fully, finally, and forever release,
relinquish, acquit, and discharge each other and all affiliated corporations, partnerships, other
business entities, including present and former officers, directors, employees, partners,
shareholders, attorneys, owners, members, agents, subcontractors, independent contractors and
any other affiliated parties or entities from and against any and all manner of action or actions,
cause or causes of action, liabilities, suits, debts, accounts, books, covenants, contracts,
controversies, torts, promises, judgments, claims and demands whatsoever in law or in equity
which they may have had, now have or which they may have for or by reason of any manner
relating to sums that Gilbane claims, has claimed or will claim for sums due and owing under the
Contract from July 23, 2008 through the date of this Agreement. Also included are any and all
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claims or causes of action assertable by the County concerning workmanship at the Court Tower
facility, including, without limitation, warranty claims. Except as provided below, said release is
intended to cover, and does cover, any and all demands, claims, causes of actions and suits in
law or in equity which Gilbane and/or the County has or may have for damages, losses or
expenses including those hereafter discovered even though presently unknown and/or
unexpected. Furthermore, said release includes the County's successors, predecessors, assigns,
heirs, personal representatives, administrators and executors and marital communities and other
affiliated entities and affiliated persons as set forth above. Notwithstanding anything to the
contrary in this Agreement, said release does not apply to, and the parties each reserve their
rights with respect to, claims against either party relating to bodily injury (including death) and
property damage arising from allegedly latent work defects that are unknown and unidentified by
either the County or Gilbane as of the Effective Date of this Agreement
7. This Agreement constitutes and embodies the full and complete understanding
and agreement of the parties hereto and supersedes all prior understandings, whether oral or
written. No representation, promise, inducement, or statement of intention has been made by any
party which is not embodied in this Agreement, and no party shall be bound or liable for any
alleged misrepresentation, promise, inducement or statement of intention not set forth in this
Agreement.
8. No modification of this Agreement shall be deemed effective unless in writing
and signed by the parties hereto, and any waiver granted shall not be deemed effective except for
the instance and in the circumstances particularly specified therein and unless in writing,
executed by the party against whom enforcement of the waiver is sought.
9. Each party, promptly upon the request of the other, shall execute and have
acknowledged and delivered to the other, any and all further instruments reasonably requested or
appropriate to evidence or give effect to the provisions, or any of the provisions, of this
Agreement and which are consistent with the provisions hereof.
10. In the event of any litigation or other proceeding concerning this Agreement, the
prevailing party shall be entitled to recover all of its costs of litigation, reasonable attorney's fees
and reasonable other expenses including, but not limited to, expert witness fees.
11. This Agreement shall be binding upon and inure to the benefit of the successors,
transferees and assigns of the respective parties hereto.
12. In the event that any portion of this Agreement is found to be unenforceable by a
court of competent jurisdiction for any reason, the unenforceable provision(s) shall be considered
to be severable. The remainder of this Agreement shall continue in full force and effect as fully
as though such invalid, illegal, or unenforceable portion had never been part of this Agreement.
Further, any court considering any term alleged to be invalid, illegal, or unenforceable shall
modify any challenged provision to the extent required to make it valid, legal, and enforceable
and thereby give as much effect as possible to the intentions of the parties to this Agreement.
13. This Agreement shall be governed by and construed in accordance with the laws
of the State of Arizona.
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14. This Agreement may be executed in counterparts.
[SIGNATURES ON FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first written above.
MARICOPA COUNTY, a body politic and corporate entity
By:
Steve Chucri
Chairman, Maricopa County Board of Supervisors
ATTEST:
Fran McCarroll
Clerk to the Maricopa County Board of Supervisors
(ACKNOWLEDGMENT)
STATE OF ARIZONA
) ss.
COUNTY OF MARICOPA )
On .. 2015, before me personally appeared , the
for MARICOPA COUNTY, whose identity was proven to me on the basis of
satisfactory evidence to be the person who he claims to be, and acknowledged that he signed the
above Settlement Agreement and Release, on behalf of Maricopa County.
Notary Public
(Affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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GILBANE BUILDING COMPANY
A Rhode Island corporation
By:
Name:
Title:
(ACKNOWLEDGMENT)
STATE OF
COUNTY OF
On , 2015, before me personally appeared
, the of GILBANE BUILDING
COMPANY, a Rhode Island corporation, whose identity was proven to me on the basis of
satisfactory evidence to be the person who he/she claims to be, and acknowledged that he/she
signed the above Settlement Agreement and Release on behalf of the corporation.
Notary Public
(Affix notary seal here)
2375333 5

Maricopa County
County Manager's Office
301 West Jefferson Street March 2, 2012
10th Floor
Phoenix, ..1%. 8511113 - 2143
Phone: (1112-51./4-1950
Fax: M/2-506-3328
www.maricopa,gov
Mr. D. Thomas Goderre, P.E., Leed
Construction Vice President/District Manager
Gilbane Building Company
2355 E. Camelback Road, Suite 850
Phoenix, AZ 85016
Mr. Chuck Carefoot
Vice President
Ryan Companies US
3900 E. Camelback Road, Suite 100
Phoenix, AZ 85018
Dear Tom and Chuck:
The $260M and 70,000 square-feet Maricopa County Downtown County
Tower project was completed on time and under budget in February 2012.
The project utilized the construction Manager at Risk (CMAR) delivery
process with Design Assist Trade Contractors selected early on by the county
and Gilbane/Ryan. The schedule was shortened by a year and a half by
phasing the design and using a CMAR process in lieu of a design, bid and
build process. The Gilbane/Ryan team returned $5 million in savings, which
we were able to put to use to fund other Maricopa Capital improvement
projects. Utilizing the Integrated Project Delivery (IPD) method, this team was
also able to reduce the initial projected cost of the project by over $30M. At
its peak, the project employed over 800 on-site construction personnel as well
as hundreds of off-site support personnel undertaking detailing, fabrication,
delivery and management of specific project components. Through the
duration of the project, the construction team amassed almost 1,000 safe
work days and more than two million (2,000,000) hours worked safely without
a single lost time accident.
Sustainability has been a goal of Maricopa County for many years. This
project epitomizes this dedication and became a model for the Maricopa
County projects to follow. Among the many attributes of this facility, the
construction team was able to divert from local landfills over 93% of the total
construction waste (over twenty nine thousand (29,000) tons of debris.) This
fact, along with numerous design features, will result in achieving a minimum
LEED Silver Certification and potentially LEED Gold Certification.
EXHIBIT

Mr. D. Thomas Goderre
Mr. Chuck Carefoot
March 2, 2012
Page 2
Additionally, this project utilized almost $26M in MWSBE subcontractor and
vendor participation throughout the project.
The Court Tower Project was exemplary in every respect. I appreciate the full
attention to every one of thousands of details by the partnering companies.
There never was a sense that this person worked for one company or the
other, or that county employees were not also part of an integrated,
successful team. Thank you again.
Sincerely,
David R. Smith
County Manager
DRS/ah
EXHIBIT 1