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HomeMy WebLinkAbout19-085 - Amento Steve / Lydig Construction - Public Safety Plan Construction Mediator for Fire Station 51 (Project Neutral)19-085 Council Approval 4/22/19 TUKWILA PUBLIC SAFETY PLAN — FIRE STATION 51 DISPUTE RESOLUTION PROJECT NEUTRAL AGREEMENT This Agreement is entered into among the City of Tukwila ("COT"), Lydig Construction ("Lydig"), and Steven Amento ("Project Neutral"). The alternative dispute resolution process for the Tukwila Public Safety Plan Fire Station 51 Project ("Project") shall be provided by the Project Neutral and shall govern the resolution of claims and disputes by Lydig and its subcontractor with COT under the terms of this Agreement, pursuant to Public Safety Plan — Fire Station 51, Project No. 90830402, Contract 18-001 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 Lydig agree to indemnify and hold harmless 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 Lydig on behalf of one of its subcontractors or subconsultants, Lydig 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. I 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 Lydig. OBJECTIVES The principal objective of the Project Neutral is to assist the resolution of construction claims and/or disputes between COT and Lydig, 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 formal matters, the Project Neutral will make written recommendations, which are not binding on COT or Lydig. All formal Project Neutral decisions and recommendations will be in writing. By creating this process, it is not intended that COT or Lydig 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 Lydig to refer matters to the Project Neutral only when they cannot reasonably resolve a dispute. Tukwila Public Safety TPN Agreement — Fire Station 51 February 27, 2019 page 1 RESPONSIBILITY OF THE PROJECT NEUTRAL In facilitating the prompt and fair resolution of disputes among or between COT and Lydig 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 Lydig that would be helpful in keeping the Project Neutral informed 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 Lydig. The Project Neutral shall refrain from giving any advice or consulting services to either COT or Lydig, shall refrain from entering into any business relationship with COT or Lydig 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 Lydig. Regular construction progress meetings among COT, Lydig, and their respective representatives are held at or near the job site. The Project Neutral is welcome to attend any of these meetings and may be called upon to participate. Lydig 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 Lydig. 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 Lydig may request a formal dispute resolution proceeding by written notice to the Project Neutral. The Project Neutral shall determine the procedures for the formal dispute process. COT and Tukwila Public Safety TPN Agreement — Fire Station 51 February 27, 2019 page 2 Lydig 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 Lydig 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 Lydig. Within 30 days of the Project Neutral's decision, COT and Lydig 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 Lydig 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 information 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 determine when he has received sufficient information 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 Lydig 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 — Fire Station 51 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 Lydig shall furnish the Project Neutral with a copy of all subcontracts related to the Project. COT and Lydig 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 Lydig 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, Lydig, and the Project Neutral. PROJECT NEUTRAL REPLACEMENT The Project Neutral serves as the mutual consent of COT and Lydig, and the services of the Project Neutral shall cease on notification that COT or Lydig 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 Lydig. 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 Lydig 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 Lydig's shared expenses of the Project Neutral, and these records will be available for inspection by Lydig. 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 — Fire Station 51 February 27, 2019 page 4 costs require prior approval by COT and Lydig. 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 Lydig for services rendered under this Agreement as provided hereinafter. Such payments shall be full compensation for work performed 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, Lydig, 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 Lydig 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 Lydig). Any modification to this amount must be approved by COT and Lydig 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 Lydig 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 — Fire Station 51 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 Lydig. 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 Lydig. 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, Lydig, 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; I shall avoid impropriety or the appearance of impropriety in communicating with COT and Lydig; 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 — Fire Station 51 February 27, 2019 page 6 EFFECTIVE THIS - DAY OF '° �' �4 2019. PROJECT N HUT 0�Z Steve en THE CITY OF TUKWILA By:� Title: A1Ian Ekberg, Mayor Date Date: LYDIG CONSTRUCTION Title:u�_r::: Date:.::: W Tukwila Public Safety TPN Agreement — Fire Station 51 February 27, 2019 page 7