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HomeMy WebLinkAbout19-084 - Amento Steve / BNBuilders - Public Safety Plan Construction Mediator for Justice Center (Project Neutral)19-084(b) Council Approval N/A SECOND AMENDMENT TO DISPUTE RESOLUTION PROJECT NEUTRAL AGREEMENT TUKWILA PUBLIC SAFETY PLAN — JUSTICE CENTER PROJECT This Second Amendment to Dispute Resolution Project Neutral Agreement ("Amendment") is entered into and effective as of the date appearing with the signatures below, by and among the City of Tukwila ("COT"), BNBuilders, Inc. ("BNB"), and Steve Amento ("Project Neutral"), each of which is a "Party" and collectively referred to as the "Parties." WHEREAS, the Parties entered into a Dispute Resolution Project Neutral Agreement (the "Agreement"), dated as of May 15, 2019, in which COT and BNB engaged Project Neutral to provide alternative dispute resolution services; and WHEREAS, the Parties entered into the First Amendment to the Agreement, in which the Parties agreed the Project Neutral would act as the Initial Decision Maker under the Contract Documents; and WHEREAS, the Parties now intend to increase the amount of payments in the Agreement to compensate the Project Neutral for acting as the Initial Decision Maker; and NOW THEREFORE, in consideration of the agreements and mutual covenants of the Parties herein contained, the sufficiency of which is hereby acknowledged, the Parties agree as follows: I. Incorporation of Recitals. The Recitals above are incorporated and made part of this Aniendment. 2. Section IV Payment. The second paragraph under the heading "PAYMENTS" in Section IV PAYMENT in the Agreement shall be replaced in its entirety with the following paragraph: The maximum amount of payments (including reimbursable expenses) under this Agreement is $33,095 ($16,547.50 each for COT and BNB). This amendment, in the amount of $17,295 ($8,647.50 each for COT and BNB), is for the services detailed in Exhibit A, attached and incorporated by reference. 3. Confirmation of Terms. Except as expressly modified herein, all of the terms and conditions set forth in the Agreement remain unchanged and in full force and effect. EFFECTIVE THIS*/ DAY OF PAAllgeki, 2020. Tukwila Public Safety TPN Agreement — Justice Center SECOND AMENDMENT page 1 -57t c/K 6/4//1-6:1 THE CITY OF TUKWILA BNBUILDERS, INC By: Title: Mayor Date: q/61 U7,0 By: Title: 11.3_0T Date: Tukwila Public Safety TPN Agreement — Justice Center SECOND AMENDMENT page 1 EXHIBIT A Tukwila Justice Center Project Neutral Services Recommended Budget for Anticipated Services (February 1, 2020 through Project Completion] Prepared February 10, 2020 This is a budget only, services will be invoiced on an hourly basis. CONSULTING Billings to date for services provided through 1/31/20 (Not included in total below.) $13,484.27 Rate / Hr $ 225 Budget Est. Hours 1. Review recommended amendments to AIA documents and project neutral $405.00 2Hrs agreements and execute same. 2. Perform Initial Decision Maker services described in AIA 201. Anticipated services 55,625.00 25Hrs include a review of documents submitted related to JMI claim, prepare for and conduct one formal hearing, and preparation of written recommendations after hearing. 3. Attend monthly Project Neutral meetings which include attending site visit and $11,025.00 49Hrs OAC meeting. (Assume 7 meetings February through August 2020) 4. Reimbursable Expenses. RECOMMENDED BUDGET FEBRUARY 1 THROUGH AUGUST 31, 2020 76Hrs $240.00 0 $17 295.00 Budget for Amento Services 021020.xlsx 19-084(a) Council Approval N/A FIRST AMENDMENT TO DISPUTE RESOLUTION PROJECT NEUTRAL AGREEMENT TUKWILA PUBLIC SAFETY PLAN — JUSTICE CENTER PROJECT This First Amendment to Dispute Resolution Project Neutral Agreement ("Amendment") is entered into and effective as of the date appearing with the signatures below, by and among the City of Tukwila ("COT"), BNBuilders, Inc. ("BNB"), and Steve Amento ("Project Neutral"), each of which is a "Party" and collectively referred to as the "Parties." WHEREAS, the Parties entered into a Dispute Resolution Project Neutral Agreement (the "Agreement"), dated as of May 15, 2019, in which COT and BNB engaged Project Neutral to provide alternative dispute resolution services; and WHEREAS, the AIA Documents A133 and A201 as entered into by COT and BNB (collectively, "Contract Documents") set out a dispute resolution process that utilizes an "Initial Decision Maker" (erroneously identified in at least one place as the Independent Decision Maker), who was "To be determined"; and WHEREAS, the Parties intend for Project Neutral to act as the Initial Decision Maker under the Contract Documents, to utilize the dispute resolution procedures in the Agreement to the extent they do not conflict with the Contract Documents; and NOW THEREFORE, in consideration of the agreements and mutual covenants of the Parties herein contained, the sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Incorporation of Recitals. The Recitals above are incorporated and made part of this Amendment. 2. Identification of the Initial Decision Maker. COT and BNB name Project Neutral as the Initial Decision Maker under the Contract Documents. Project Neutral agrees to act as the Initial Decision Maker under the Contract Documents. 3 Initial Dispute Resolution Procedures. The "General Procedure Governing Formal Disputes" under the Agreement shall commence upon an appeal to the Initial Decision Maker under the Contract Documents. 4. Claims Procedures in Contract Documents. Compliance with the notice and claims provisions of the Contract Documents are a condition precedent to engaging in the "General Procedure Governing Formal Disputes" under the Agreement. Nothing in this Amendment shall change the requirements for notice, claims, or disputes in the Contract Documents. 5. Contract Documents Shall Govern. Upon an appeal to the Initial Decision Maker, Project Neutral shall follow the "General Procedure Governing Formal Disputes," but only to the extent they do not conflict with the provisions with the Contract Documents. To the extent any provision of the Contract Documents conflicts with the Agreement, the provisions of the Contract Documents shall prevail. Tukwila Public Safety TPN Agreement — Justice Center FIRST AMENDMENT page 1 47 cct'/6/A,(//i-L 6. Specific Clarifications of Project Neutral Responsibilities. Without limiting the breadth and applicability of the provisions above, the Parties agree as follows: a. Claims under $30 000. As stated in AIA Document A201 Section 15.2.3, and notwithstanding language that may be interpreted to the contrary in the Agreement, Project Neutral's decision on claims for monetary relief of $30,000 or less, when acting as the Initial Decision Maker, is final and binding. b. Formal Dispute Resolution Procedure. The Parties agree that, despite the heading of "General Procedure Governing Formal Disputes," the procedures for formal dispute resolution in the Agreement do not violate the statement in AIA Document A201, Section 15.2.3, that "There will be no formal procedure for the Initial Decision Maker's review of an appeal." For the sake of clarity, the Parties agree, upon Project Neutral's receipt of an appeal to the Initial Decision Maker under AIA Document A201 Section 15.2.2, the dispute resolution procedures shall be governed by and comply with the Agreement's "General Procedure Governing Formal Disputes" to the extent they do not otherwise conflict with the Contract Documents. 7. Application of Provisions to Pre -Existing Disputes. The Parties represent that, as of the effective date of this Amendment, neither COT nor BNB have filed an appeal to the Initial Decision Maker, and the Project Neutral has not received an appeal to the Initial Decision Maker. Thus, all disputes between COT and BNB shall be subject to the terms of this Amendment, regardless of whether the event giving rise to the dispute predates the effective date of this Amendment. 8. Confirmation of Terms. Except as expressly modified herein, all of the terms and conditions set forth in the Agreement remain unchanged and in full force and effect. EFFECTIVE THIS 1 DAY OF t" PROJECT NE Steve Amento THE CITY OF TUKWILA By: Title: Mem Date: 3/ 3/Zo 7.49 2020. Date: BNBUILDERS, INC By: Title: TPa Date: Tukwila Public Safety TPN Agreement — Justice Center FIRST AMENDMENT page 2 19-084 Council Approval 4/22/19 TUKWILA PUBLIC SAFETY PLAN — JUSTICE CENTER PROJECT DISPUTE RESOLUTION PROJECT NEUTRAL AGREEMENT This Agreement is entered into among the City of Tukwila ("COT"), BNBuilders, Inc. ("BNB"), and Steve Amento ("Project Neutral"). The alternative dispute resolution process for the Tukwila Public Safety Plan Justice Center Project ("Project") shall be provided by the Project Neutral and shall govern the resolution of claims and disputes by BNB and its subcontractor with COT under the terns of this Agreement, pursuant to Public Safety Plan — Justice Center; City Project No. 91630501, Contract 18-049 AIA Document A 13 3 — 2009 Article 9 -Dispute Resolution. The Project Neutral, Steve Amento, shall serve until the completion of the Project. The Project Neutral may be replaced as provided below. COT and BNB agree to indemnify and hold harnless the Project Neutral from any liability arising from the execution of duties as a Project Neutral, as described in this Agreement. As a condition to accepting an appeal from BNB on behalf of one of its subcontractors or subconsultants, BNB shall present to COT at the time of delivering the appeal notice a certificate, signed by an authorized representative of the subcontractor or subconsultant, in which the subcontractor or subconsultant agrees to indemnify and hold harmless the Project Neutral from liability arising from the execution of his duties as the Project Neutral. DESCRIPTION OF THE WORK The Project Neutral shall provide fair, prompt and cost-effective consideration of disputes placed before it. The Project Neutral is not the representative or advocate of COT or BNB. OBJECTIVES The principal objective of the Project Neutral is to assist the resolution of construction claims and/or disputes between COT and BNB, without resorting to litigation. If this objective is achieved, disputes can be resolved promptly with minimum expense, and with minimum disruption to the administration and performance of the work on this Project. In fornnal matters, the Project Neutral will make written recommendations, which are not binding on COT or BNB. All formal Project Neutral decisions and recommendations will be in writing. By creating this process, it is not intended that COT or BNB abandon their obligation to amicably and fairly settle their differences without resorting to the Project Neutral process. The Project Neutral will encourage settlement of differences at the job level and encourage COT and BNB to refer matters to the Project Neutral only when they cannot reasonably resolve a dispute. F Tukwila Public Safety TPN Agreement — Justice Center February 27, 2019 page 1 RESPONSIBILITY OF THE PROJECT NEUTRAL In facilitating the prompt and fair resolution of disputes among or between COT and BNB arising from performance of the work on the Project, the Project Neutral shall strive, whenever possible, to act as a mediator, seeking mutual agreement. The Project Neutral shall become familiar with the Contract Documents, be provided access to any documents by COT and BNB that would be helpful in keeping the Project Neutral infornled about the Project. The Project Neutral should receive copies of any key written communications between the parties. The Project Neutral should visit the job site as needed, accompanied by representatives of COT and BNB. The Project Neutral shall refrain from giving any advice or consulting services to either COT or BNB, shall refrain from entering into any business relationship with COT or BNB during the course of service and shall refrain from any act which would create an appearance of unfairness. The Project Neutral will act in an independent and neutral manner. As a condition to its selection, the Project Neutral hereby affirms that he is free of any conflict of interest. The foregoing shall not, however, be interpreted as restricting the Project Neutral from serving as project neutral or Dispute Resolution Board member on other projects for COT or BNB. Regular construction progress meetings among COT, BNB, and their respective representatives are held at or near the job site. The Project Neutral is welcome to attend any of these meetings and maybe called upon to participate. BNB will prepare minutes of these meetings. The Project Neutral will be on the circulation list for meeting minutes. INFORMAL GUIDANCE MEETINGS The parties are encouraged to involve the Project Neutral in resolution of any emerging disputes or problems as early as possible. The Project Neutral shall be available on relatively short notice to meet with the parties to provide informal non -binding guidance on the preliminary thoughts of the Project Neutral regarding any issue. Either party may request such a meeting through telephone, facsimile, or email communication with the Project Neutral. The informal review is in addition to the formal process set forth below. These meetings will be very informal discussions with input and comments encouraged from all parties. Initial impressions and guidance will be provided by the Project Neutral orally. No written recommendation will be made by the Project Neutral, unless requested by both COT and BNB. Use of the Project Neutral informally shall not waive the requirements of the Contract Documents. GENERAL PROCEDURE GOVERNING FORMAL DISPUTES If informal guidance does not resolve a dispute, COT or BNB may request a formal dispute resolution proceeding by written notice to the Project Neutral. The Project Neutral shall determine the procedures for the fonnal dispute process. COT and Tukwila Public Safety TPN Agreement — Justice Center February 27, 2019 page 2 BNB may submit whatever relevant evidence each believes supports its position in the dispute and shall submit any additional evidence or information the Project Neutral requests. COT and BNB will furnish copies of all submissions to each other. The Project Neutral may elect to hear testimony or oral argument or may decline to do so. The Project Neutral shall endeavor to resolve each dispute in an expeditious and cost-effective manner. The Project Neutral shall promptly render his recommendation or decision in writing to COT and BNB. Within 30 days of the Project Neutral's decision, COT and BNB shall confer and attempt to reach an agreement regarding implementation of the decision, and if appropriate, enter into a written agreement, which may be a change order. The Project Neutral shall decide when to conduct hearings. If the matter is not urgent, the hearing may be scheduled during the time of the Project Neutral's next regular visit to the site. For an urgent matter, the Project Neutral should convene a hearing at the earliest convenience for all parties, provided, however, in no event shall the hearing commence later than 30 days after delivery of a written appeal to the Project Neutral, unless agreed to by the parties. The Project Neutral may designate any location to conduct the hearing where it deems convenient. However, strong preference should be given to locations at or near the site to minimize impact on the work force and to provide opportunities to timely adjourn to the site to further evaluate the claims. COT and BNB shall cooperate in the scheduling and conduct of the hearings and may have representatives at any hearing. The Project Neutral will determine the order and manner in which infonnation is presented at any hearing. At any time, the Project Neutral may ask questions, request clarification, or ask for further data. The Project Neutral's decision/recommendation shall be based on the pertinent Contract Documents and the relevant facts and circumstances involved in the dispute. The Project Neutral is free to conduct his own investigation of any matter presented to it, provided that any such independent investigation and the results thereof shall be detailed in the written decision/recommendation of the Project Neutral. The Project Neutral will detennine when he has received sufficient infonnation from the parties to the dispute and when to close the evidence. After the hearings are concluded, the Project Neutral shall deliberate in private and reach a conclusion. The decision or recommendation of the Project Neutral will be announced in writing. In a dispute, if the Project Neutral's recommendations do not resolve the dispute, the Project Neutral's written recommendations will be admissible as evidence in any subsequent litigation. COT and BNB may present in any subsequent litigation only evidence that falls into one or more of the following categories: (1) of those facts or circumstances giving rise to or supporting the dispute presented to the Project Neutral prior to the Project Neutral's written findings and recommendations; (2) of those facts and circumstances that could not have been discovered Tukwila Public Safety TPN Agreement — Justice Center February 27, 2019 page 3 through due diligence; or (3) of costs which could not be reasonably ascertained prior to the hearing may be added after the Project Neutral process. Any party to a dispute may request reconsideration of a Project Neutral recommendation by requesting the same within five business days of the date of receipt of the Project Neutral's determination. However, the Project Neutral's reconsideration will be limited solely to hearing new arguments. No new evidence will be considered. II OBLIGATIONS OF THE PARTIES FURNISHING DOCUMENTS The Project Neutral shall have access to such Contract Documents as he shall request. COT will furnish the Project Neutral with a copy of the General Conditions, and BNB shall furnish the Project Neutral with a copy of all Prime or GCCM subcontracts related to the Project. COT and BNB will make the necessary representatives available to conduct a joint briefing of the Project Neutral on the status of the Project at a time to be mutually agreed upon. COT and BNB will furnish the Project Neutral with relevant schedule documents, minutes of relevant meetings, and other information the Project Neutral may request. CONSTRUCTION SITE VISITS The Project Neutral shall visit the Project site to keep abreast of construction activities and to develop a familiarity of the work in progress. The frequency, exact time, and duration of these visits shall be as mutually agreed among COT, BNB, and the Project Neutral. PROJECT NEUTRAL REPLACEMENT The Project Neutral serves as the mutual consent of COT and BNB, and the services of the Project Neutral shall cease on notification that COT or BNB wish to withdraw their consent. Should the need arise to appoint a replacement, the replacement shall be appointed with the mutual consent of COT and BNB. The appointment of any replacement will begin promptly upon determination of the need for replacement and shall be completed within 21 calendar days. COORDINATION AND SERVICES COT and BNB will cooperate in the coordination of Project Neutral operations. COT will arrange or provide a meeting facility convenient to the project site and will provide secretarial and copy services. COT will maintain complete cost records for COT's and BNB's shared expenses of the Project Neutral, and these records will be available for inspection by BNB. These expenses include the Project Neutral's fees and travel expenses, local lodging and subsistence, and direct costs associated with the Project Neutral operations. Travel, lodging, subsistence, and other direct Tukwila Public Safety TPN Agreement — Justice Center February 27, 20191 page 4 costs require prior approval by COT and BNB. III TIME FOR BEGINNING AND COMPLETION The Project Neutral is to be available until notified in writing by COT that there are no pending issues or disputes. IV PAYMENT The costs for the Project Neutral shall be borne equally by COT and BNB for services rendered under this Agreement as provided hereinafter. Such payments shall be full compensation for work perfonned or services rendered, and for all labor, materials, supplies, equipment, and incidentals necessary to the operation of the Project Neutral. ALL INCLUSIVE RATE PAYMENT The Project Neutral shall be paid. at the rate of $225 per hour, not to exceed 4 hours per month for regular monthly services. Services beyond that shall be paid at the same hourly rate. Subsequent changes in the rate are subject to agreement among COT, BNB, and the Project Neutral. PAYMENTS The Project Neutral may submit invoices not more than once per month to COT for payment for authorized work completed by the Project Neutral. Such invoices shall be in a format approved by COT and accompanied by a general description of activities performed during that billing period. COT shall be reimbursed 50% by BNB for payments made to the Project Neutral of amounts properly invoiced by Project Neutral. The maximum amount of payments (including reimbursable expenses) under this Agreement is $15,800 ($7,900 each for COT and BNB). Any modification to this amount must be approved by COT and BNB in writing as a change to this Agreement. INSPECTION OF COSTS RECORDS The Project Neutral shall keep available the cost records and accounts pertaining to this Agreement for inspection by representatives of COT and BNB for a period of six years after final payment. If any litigation, claim, or audit arising out of, in connection with, or related to this Agreement is initiated before the expiration of the six -year period, the cost records and accounts shall be retained until such litigation, claim, or audit involving the records is completed. Tukwila Public Safety TPN Agreement — Justice Center February 27, 2019 page 5 V ASSIGNMENT OF TASKS OF WORK The Project Neutral shall not assign any of the work of this Agreement without the written consent of COT and BNB. VI LEGAL RELATIONSHIP The parties agree that the Project Neutral, in the performance of his duties, is acting as an independent contractor and not as an agent or employee of COT or BNB. VII DISPUTES Any Claim which cannot be resolved by negotiation and mutual concurrence among the parties and the assistance of the Project Neutral may, at the instance of any party, be referred to the Superior Court of the State of Washington in King County. The parties may agree to mediate any dispute prior to litigation. VIII PERSONAL JURISDICTION For purposes of enforcement of these provisions, COT, BNB, and Project Neutral hereby consent to the personal jurisdiction of the Superior Court of the State of Washington, situated in King County. IX THE PROJECT NEUTRAL The undersigned Project Neutral consents to these terms and further affirms the following Code of Ethics: 1. I shall uphold the integrity and fairness of the Project Neutral process; 2. I shall disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality or bias; 3. I shall avoid impropriety or the appearance of impropriety in communicating with COT and BNB; 4. I shall conduct the proceedings fairly and diligently; 5. I shall make decisions in a just, independent, and deliberate manner; and 6. I shall be faithful to the relationship of trust and confidentiality inherent as a Project Neutral. Tukwila Public Safety TPN Agreement — Justice Center February 27, 2019 page 6 EFFECTIVE THIS DAY OF 2019. PROJECT NEI.111�u A Date: Steve Ame to THE CITY OF TUKWILA By: Title: AI I an E k bQig ' A' Mayor Date: BNBUILDERS, INC By:_ Title: Date: Tukwila Public Safety TPN Agreement — Justice Center February 27, 2019 page 7