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Council Minutes 1999 10/22CITY OF MCCALL MINUTES Special Meeting City of McCall October 22, 1999 Table Of Contents Call To Order and Roll Call Business Adjournment MINUTES Call To Order The special meeting of the McCall City Council was called to order by Mayor Eimers at 3:02pm. Ms. Arp, Mr. Colton, Mr. Eimers, Mr. Muller and Mr. Venable answered roll call. The City staff present was Cathleen Koch. Mr. Robertson and Mr. Bieter were available by conference call. Business AB 99-101 JUB Settlement Agreement Bill Robertson reported that the City of McCall had reached a settlement agreement with JUB. There was a reduction in the settlement from $140,000 of about $9,000 for duplicate billing. Mayor Eimers questioned Bill about whether or not he had reviewed the document. Mr. Robertson confirmed that he had. The Mayor asked if Mr. Robertson was okay with the agreement. Dave Bieter said that he needed to speak about it first. He explained that JUB had made changes to the agreement that Mr. Bieter had sent to their attorney. He said that if the agreement were approved in its current form, JUB could receive a waiver of liability if earlier work were incorporated in future work. Mr. Bieter pointed out that he did not believe DEQ would approve payment 2 times for the same work. Mr. Bieter explained that there could be an audit of the project, and the City may have to pay back what they can't show work was done for. The council members asked why the agreement was sent if there were still issues with it. Mr. Bieter explained that he had addressed the issues in the agreement he sent to them, but they had deleted those parts of the agreement. He then stated that our draft had language that the parties were in agreement that 30% of the work was complete and 70% remained to be done. Mayor Eimers confirmed that the City was making payment on work that was done before. Mr. Bieter pointed out the fourth paragraph on page one. The Mayor asked if the contract had been reviewed before. Mr. Bieter said that it was just received yesterday. The Mayor asked what should be done about the settlement agreement. Dave stated that $225,240 was for the design and that 69% should be paid in the future. Dave stressed that the waiver of liability should not be limited to the first agreement. Mr. Bieter stated that the amount of the settlement would settle the lawsuit and that should be the extent of the waiver of liability. Mr. Bieter also stated that the 30% of work that had been completed had some value and if the City signs the agreement in its current form, the City is saying that it has no value. The Mayor asked how the city would be protected. Dave stated that he had faxed the "red- lined" version of the original agreement he sent JUB. Dave explained that the lawsuit was only for breach of contract. Mr.. Muller said that there was no counter claim in the lawsuit for shoddy work. Ralph I~; ...... stated that ~f phase 1 was the only issue being addressed, then whatever work was done in that phase should have a release of liability. He stated that the release should not be a blanket statement to cover any work done by JUB. Mayor Eimers moved for approval of the payment of the settlement for $131,849.87 for the breach of contract lawsuit to pay for the design. Ralph Colton seconded the motion. Mr. Muller was no longer present on the conference call. All other council members present voted aye. Mayor Eimers moved for approval that JUB gained beneficial knowledge that can be applied to subsequent contracts. A second motion was made for the value gained, the City has relied on certain information that has been developed and used and that all liability would remain in effect and relevant. Ralph seconded the motions. Mayor Eimers moved for authorization for Dave to negotiate with JUB and their attorney. Ralph Colton seconded the amended motion. Mr. Eimers, Ms. Arp and Mr. Colton voted aye. Mr. Venable voted nay. Motion carried 3to 1. Discussion continued about the fact that JUB needs to stand behind their work. If another meeting is needed, JUB needs to be present. The settlement agreement would be included as an agenda bill for the next council meeting. Mr. Bieter stated that an email was sent to Larry Peterson hoping to have a draft of a joint DEQ/BOR environmental recommendation. A copy needed to be sent to Kirby Vickers. JUB's lawsuit against the State of IDAHO has been dismissed. Adjournment At 4:21pm, Mayor Eimers moved to adjourn. Ralph Colton seconded the motion. All council members voted aye. The motion carried. ATTEST: Kirk Eimers, Mayor Cathleen Koch, Deputy City Clerk