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Home My Public Portal AboutBox 512 - Council Position & misc.Confidential Council Position: 1) The parties agree to a contract date extension of June 1, 2001. 2) The parties agree that 5t. Clair shall pay liquidated damaged in the amount of one thousand five hundred dollars ($1,500.00) per day from November 2, 2000, until project reaches substantial completion, or instead pay the City's engineering expenses that exceed the bid amounts. R5t. Clair pays JUB costs in excess of $660,000. Range of motion: IJ a 3) The parties further agree that liquidated damages will increase to the amount of five thousand dollars ($5,000.00) per day and shall be assessed against 5t. Clair for every day after June 2, 2001 that the project has not reached substantial completion. 4) The amount currently outstanding, due, and payable to 5t. Clair, excluding pay application #7, is $492,500.00. The parties understand that this amount reflects assessment of $121,500.00 in Liquidated damages by the City for the period from November 2, 2000 until and including January 22, 2001. PAY? 5) . The City agrees to tender this amount upon receipt and approval of executed lien waivers provided by 5t. Clair for all subcontractors and suppliers performing work or providing materials through pay application No. 4. The parties further agree that such lien waivers shall be a condition for payment of any amount paid to St. Clair by the City for the duration of the project. 6) 5t. Clair agrees to provide the documentation required as per the contract documents showing that the liner is complete, tested, and approved. Upon receipt of this documentation and approval of same by JUB, the City agrees to pay the full amount of the scheduled value for the liner. Received —Pay? UP 7) St. Clair agrees that their warranties and guarantees, as required by the contract documents, will be fully in place as of June 1, 2001. 5t. Clair further agrees that all such warranties and guarantees shall extend for six (6) months longer than provided in the contract documents. NO CHANGE AUTHORIZED 8) 5t. Clair agrees to pay all fines, expenses, and costs accrued by or assessed against the City as a result of St. Clair's failure to meet the June 1, 2001 deadline. Range of motion? (.�-rY- r.,� 0 9) Wausau agrees that Performance Bond No. 2350 50 0582 will continue in full force and effect until completion of the project, specifically agreeing to the extended project dates as contained herein and to be set forth in a change order, which City, JUB, and St. Clair agree to execute. NO CHANGE AUTHORIZED 10)St. Clair agrees to duly submit pay application No. 7 for processing as per the contract documents. We received a revised #7 as I was typing this at 5:00 Thursday. 11)The parties agree that in no event shall the total amount for the project exceed $3,983,739.00. This was acceptable —New info —St. Clair wants to be able to readdress issues of time and money for work change directives. Range of motion? 1)`or`2-. 12)The parties agree that the mediation clause contained in Supplementary Conditions Section 16.01.B. shall be removed from the contract as of the date of the execution of this document and have no force or effect whatsoever. NO CHANGE AUTHORIZED. 13) St. Clair agrees that this agreement resolves all claims existing or submitted upon their behalf, including but not limited to claims asserted in the context of this mediation and any other claim previously asserted on their behalf, whether or not subject to this mediation. NO CHANGE AUTHORIZED 14)The parties agree that the City has not waived any claims for the quality of any materials or labor incorporated into the project or delivered as of the date of the execution of this agreement. The parties further agree that the change order and claim procedures in the contract are valid and in full force and effect. NO CHANGE AUTHORIZED. 15)The parties representati conditioned provided urtrer agree and understand that any agreement or made by or on behalf of the City is subject to and n ratification by the City Council of the City of McCall as 16)The parties agree that except for the above referenced change order that changes the substantial completion date for the project to June 2, 2001, no change orders for time extensions will be considered or granted by the City. The parties further agree that the only change orders for increases in contract amounts that will be considered or processed are l� change orders that arise from design changes approved by JUB. No change authorized Confidential —Not for release Listed below are the key elements of our mediation efforts. Since the mediation is confidential, and given that we may end up in Litigation, 1 have marked this confidential and will collect all copies at the conclusion of the executive session. The City's position as presented to the contractor is that, subject to Council approval, we would agree to St. Clair's continued relationship with the City under these revised conditions. The comments in bold are the responses from the contractor as relayed thru the mediator or my comments as indicated. 1) The parties agree to a contract date extension of June 1, 2001. Contractor agrees. 2) The parties agree that St. Clair shall pay liquidated damaged in the amount of one thousand five hundred dollars ($1,500.00) per day from November 2, 2000, until project reaches substantial completion, or instead pay the City's engineering expenses that exceed the bid amounts. Contractor wants to "reserve" this, meaning the City could retain the $1, 500 per day, but the contractor may attempt to dispute this Eater. Our position is that we would accept either an agreement to retain the $1, 500 or receive the actual costs incurred as a result of the project not being completed on November 2. These costs would include JUB increased costs over the estimate and all other costs — legal fees and otherwise. The actual costs are at or above the $315,000 amount that the liquidated damages would be. The parties further agree that liquidated damages will increase to the amount of five thousand dollars ($5,000.00) per day and shall be assessed against St. Clair for every day after June 2, 2001 that the project has not reached substantial completion. The contractor agreed to this, but the bonding company had not agreed to support this change. This is a vital aspect of any agreement. 3) The amount currently outstanding, due, and payable to St. Clair, excluding pay application #7, is $492,500.00. The parties understand that this amount reflects assessment of $121,500.00 in liquidated damages by the City for the period from November 2, 2000 until and including January 22, 2001. Regardless of what we agree to do, we should pay this amount this week for two reasons —if we retain St. Clair then it would be expected, if we terminate St. Clair this is an amount that could be deemed to have been due and payable and by withholding it the City is in default. If we don't pay it, and are later found to have been in default because we didn't pay it we would not have the bond coverage that is vital. The City agrees to tender this amount upon receipt and approval of executed lien waivers provided by St. Clair for all subcontractors and suppliers performing work or providing materials through pay application No. 4. The parties further agree that such lien waivers shall be a condition for payment of any amount paid t❑ St. Clair by the City for the duration of the project. We have received a number of notices that sub -contractors have not been paid, we have the ability to require the contractor to provide this. 4) St. Clair agrees to provide the documentation required as per the contract documents showing that the liner is complete, tested, and approved. Upon receipt of this documentation and approval of same by JUB, the City agrees to pay the full amount of the scheduled value for the liner. The contractor told us that the liner is not complete, therefore JUB had to retract the recommendation to pay. If we have the letter, then it would be appropriate for us to make payment, we would do so in a joint payable check if at all possible so we can make sure Serrott gets the money. The contractor has agreed to this. 5) St. Clair agrees that their warranties and guarantees, as required by the contract documents, will be fully in place as of June 1, 2001. St. Clair further agrees that all such warranties and guarantees shalt extend for six (6) months longer than provided in the contract documents. This should not be a problem, there were some misunderstandings between the groups over the warranty extensions, but I can't foresee this being a major issue. 6) St. Clair agrees to pay all fines, expenses, and costs accrued by or assessed against the City as a result of St. Clair's failure to meet the June 1, 2001 deadline. The contractor refused to accept this level of risk. We told the mediator that we would remove this condition if all other aspects of the agreement were resolved to our satisfaction —but not to let the contractor know that. The consensus is that we would probably not be subject to any significant fines provided we are within reach of a completed project. If a moratorium is in place the potential cost impacts would be covered by the $5,000 a day. 7) Wausau agrees that Performance Bond No. 2350 50 0582 will continue in full force and effect until completion of the project, specifically agreeing to the extended project dates as contained herein and to be set forth in a change order, which City, JUB, and St. Clair agree to execute. Bonding company agreed. 8) St. Clair agrees to duly submit pay application No. 7 for processing as per the contract documents. We received a revised #7 as I was typing this at 5:0❑ Thursday. 9) The parties agree that in no event shalt the total amount for the project exceed $3,983,739.00. This was acceptable. 1O)The parties agree that the mediation clause contained in Supplementary Conditions Section 16.O1.B. shall be removed from the contract as of the date of the execution of this document and have no force or effect whatsoever. 1 don't recall if this was refused or not —just know that we told the mediator. 11)St. Clair agrees that this agreement resolves all claims existing or submitted upon their behalf, including but not limited to claims asserted in the context of this mediation and any other claim previously asserted on their behalf, whether or not subject to this mediation. Agreed to. 12)The parties agree that the City has not waived any claims for the quality ❑f any materials ❑r labor incorporated int❑ the project ❑r delivered as of the date ❑f the execution of this agreement. The parties further agree that the change order and claim procedures in the contract are valid and in full force and effect. Agreed to. 13)The parties further agree and understand that any agreement or representation made by or on behalf ❑f the City is subject to and conditioned upon ratification by the City Council ❑f the City of McCall as provided by law. Stated —not sure if there was a reply. 14)The parties agree that except for the above referenced change order that changes the substantial completion date for the project to June 2, 2001, no change orders for time extensions will be considered or granted by the City. The parties further agree that the ❑nty change orders for increases in contract amounts that will. be considered or processed are change orders that arise from design changes approved by JUB. Not sure if there was a response to this one. This is one that is not subject to debate. Qr��t•� G'o,,l�.a 3 3 23 7 3�3' ci 7 R.: 7 7 �•C - S a- 5 , y .7e 'm j ,74.2p} ty ff ?sG ,L,:77c4— 7z) 1)(-114.. C_ L Lr r r4 rJ Fiscal Year Fiscal Year Fiscal Year 99100 Activity 00101 Activity 01102 Activity SEWER FUND: Beginning Cash Balances [7a 10/01 Operating Cash or Investments 80,186 95,994 (337,970) J-Ditch BOR Advance 99,040 0 0 Farmer's 10% Maintenance $ 88,133 65,000 50,000 AP Improvement Project Restricted Investment 0 50,000 100,000 DEQ Covenant Restricted $ NA 0 47,964 Other Restricted Investment 0 40,000 80,000 TOTAL CASH @ 10101 Actual/Projected jir / jlt.,� 267,359 250,994 (60,006) OPERATIONS: Beginning Operation Cash 80,186 95,994 (337,970) Budget: Revenue - Operations 828,974 830,000 830,000 Collection Department: Operations Expenditures (225,751) (230,000) (230,000) Capital Outlay (205,235) (125,000) Capital Outlay - I & I 0 (200,000) (200,000) Capital Outlay - Park St Turn Lane - Sewer (75,000) 0 0 Debt Service, Principal & Interest (20,433) (21,000) (21,000) - &far fr Ra ed Ii i vcArrrent AP Project----------..'--(60-;049?----- (50,000) (50,000) Treatment Department: Operations Expenditures (172,387) (175,000) (175,000) Operations Expenditures - Increase for Ponds NA (25,000) (25,000) Capital Outlay 0 Capital Outlay - Cell #2 Upgrade WWTP (15,000) (225,000) Debt Service, Principal & Interest (9,360) (10,000) (10,000) Debt Service, Principal & Interest DEQ Loan NA (240,000) (240,000) Covenant Compliance DEQ Loan NA (47,964) (47,964) VLneI I Idiid61 tv-Restriete-dCastrfor-FutureYr- .-----_-.---=- 40;.000 (40,000) (40,000) Cash Balances @ 9130 - Projected TOTAL Operating CASH @ 9/30 - Projected 95,994 (337,970) (671,934) 1Dite BOR Advance 0 NA NA Farmer's 10% Maintenance $ 65,000 50,000 40,000 AP Improvement Project Restricted Investment 50,000 100,000 150,000 DEQ Covenant Restricted $ NA 47,964 95,928 Other Restricted Investment 40,000 80,000 120,000 TOTAL CASH @ 9/30 - Projected 250,994 (60,006) (266,006) Fiscal Year Fiscal Year Fiscal Year 99/00 Activity 00/01 Activity 01/02 Activity SEWER FUND: Beginning Cash Balances+@10101 Operating Cash or Investments 80,186 119,127 (209,837) J-Ditch BOR Advance 99,040 0 0 Farmer's 10°I° Maintenance $ 88,133 65,000 50,000 AP Improvement Project Restricted Investment 0 50,000 100,000 DEQ Covenant Restricted $ NA 0 47,964 Other Restricted Investment 0 40,000 80,000 TOTAL CASH @ 10/01 Actual/Projected 267,359 274,127 68,127 OPERATIONS: Budget: Revenue - Operations 828,974 830,000 830,000 Collection Department: Operations Expenditures (225,751) (230,000) (230,000) Capital Outlay (205,235) (125,000) Capital Outlay - I & I 0 (200,000) (200,000) Capital Outlay - Park St Turn Lane - Sewer (75,000) 0 0 Debt Service, Principal & Interest (20,433) (21,000) (21,000) Treatment Department: Operations Expenditures (172,387) (175,000) (175,000) Operations Expenditures Increase for Ponds NA (25,000) (25,000) Capital Outlay 0 Capital Outlay - Cell #2 Upgrade VVWTP (15,000) (225,000) Debt Service, Principal & Interest (9,360) (10,000) (10,000) Debt Service, Principal & Interest DEQ Loan NA (240,000) (240,000) Transfer to BOR for Advance (99,040) TOTAL CASH @ 9/30 - Projected 274,127 (21,873) (127,873) Covenant Compliance DE❑ Loan NA (47,964) (47,964) Transfer to Restricted Investment AP Project (50,000) (50,000) (50,000) Other Transfer to Restricted Cash for Future Yr (40,000) (40,000) (40,000) Sub - Total 184,127 (159,837) (265,837) Less Farmer's 10°Io Maintenance (65,000) (50,000) (40,000) Total Operating Cash Available 119,127 (209,837) (305,837) J-Ditch BOR Advance 0 NA NA Farmer's 10% Maintenance $ 65,000 50,000 40,000 AP Improvement Project Restricted Investment 50,000 100,000 150,000 DEQ Covenant Restricted $ NA 47,964 95,928 Other Restricted Investment 40,000 80,000 120,000 TOTAL CASH @ 9/30 - Projected 274,127 68,127 100,091 NV SEWER FUND: Beginning Cash Balances @i0/01 Operating Cash or Investments J-Ditch BOR Advance Farmer's 10% Maintenance $ AP Improvement Project Restricted Investment DEQ Covenant Restricted $ Other Restricted Investment TOTAL CASH @ 10/01 Actual/Projected OPERATIONS: Be irrr ng-OperatiorrCash - Budget: Revenue - Operations Collection Department. - Operations Expenditures Capital Outlay Capital Outlay - I & I Capital Outlay - Park St Turn Lane - Sewer Debt Service, Principal & Interest Transfer to Restricted Investment AP Project Treatment Department: Operations Expenditures Operations Expenditures - Increase for Ponds Capital Outlay Capital Outlay - Cell #2 Upgrade WWTP Debt Service, Principal & Interest Debt Service, Principal & Interest DEO Loan Covenant Compliance DEQ Loan Other Transfer to Restricted Cash for Future Yr Cash Balances 9130 - Projected TOTALI Operating)CASH @ 9/30 - Projected J-Ditch BOR Advance Farmer's 10% Maintenance $ AP Improvement Project Restricted Investment DEQ Covenant Restricted $ Other Restricted Investment TOTAL CASH @ 9/30 - Projected Fiscal Year Fiscal Year Fiscal Year 99100 Activity 00/01 Activity 01102 Activity 80,186 99,040 ->88,133' 0 NA 0 267,359 828,974 7-1225, 751) (205,235) , 0 (75,000) (20,433) - (50,$00)- 95, 994 0 65,000 50,000 0 40,000 250,994 95,994 830,000 (230,000) (200,000) 0 (21,000) (50,000) (172,387) (175,000) NA + (25,000) 0 (15,000) : (225,000) (9,360) (10,000) NA (240,000) NA (47,964) \ (40,000) -1--- ,2 _ 9Fi;99 (337,970) 0 65,000 50,000 NA 40,000 250,994 NA 50,000 100,000 47,964 80,000 (60,006) (337,970) 0 50,000 100,000 47,964 80,000 (60, 006) (337,970) 830,000 (230,000) (125,000) (200,000) 0 (21, 000) (50,000) (175, 000) (25,000) (10,000) (240,000) (47,964) (40,000) (671,934) NA 40,000 150,000 95,928 120,000 (266,006j DE, 2 00(R!MOORL S!,171l DEC— —2GJO FRI 12t4i I'ti !1EULEI N MILLER TEL'1G4 331 i1 7 FAX NO. 2983359712 P, G2r02 CARO LIMO' liSVf"IAf,r. COWL4ND cr75r1UE1-;.Ft6CO NtJr WOW V WI firkAAi; (snri er I. kif'.].L:l WWVAirLl W. t.Sl lr I. _itU! F"-1Itt1"V PAW47Y{6DA: JF s- $Yr; i:ti' oativait 64 PI RR FACSIM ILIZ 'Ionics F.. (►rlleppic, Esq. Attorney at Lau 5 I2 West Bannock Tlrsi ❑fi:coBox 2337 itisc, I83701 LAW O FI= UTM4N & MILLER LLP L-q au6tl4ELAW RC�L I'Vr•A+x tAW C4HsiRUCT:GY,v Look, ;60Li OADWMYrnL,SSlTnQOC POsT 1,; h':1:: L 50X 955 4vls'i4 IDAiLp 9570: December 22, 2000 Re: St. CIa►r Contractors/City o f McCall Mediation flu No. £454 002 01Jr7SVSED tH IDA}{p 1i.ffcir:rA 1t'LrrRI'.I) tN f11A1I0,L 1JtAh, 'Your ofil cc cnntatteci me to deiermine whether ornot 'would be avaiiablc to pru;:c::ci with the mediation in this n4#der on Dr.ccrnbcc 27, 2000, I informed ycni sc::rcrary ; am not t#l�i�El�►bZc or; the 27' of DeCuritCr and understand that your officc will now attemin to identify art altornaie slate n eat bile to ttio City of McCall 1 sugge„t that we a;rrastgc Iticph3t1c scheduling ilfOrcn0 beiwecr► ytnt, David Bieter and me to kiei it Uy ar 2ccept3bie dale. for mediation, I will Esc: out of rrty offcc NII ilexA week , nut tar: be available for telephone achRduliug conforonoc sortie time your cony;rt n t zring the first wt elk of January. rf V,r lye yatcf�: s Meufernan Viitittl'r�al 1 ' Eirvi l Ii:. 1144, (Y/Trx) Mr. Randall St. Clair g4S44031CUMAL—pie L01.+wpi scd 511 i9NIAI )s)1rr II1. 1rnn0%auad uII+l[I c :1 — IV 0 L7II a w ▪ F. ni y cra - `' - --- =. 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