HomeMy WebLinkAbout000990 Original Contract City of Port Angeles
Record # 000990
DISPUTES REVIEW Board THREE PARTY AGREEMENT
City of Port Angeles,
TEK Construction; and
William Ott
THIS THREE PARTY AGREEMENT, is made by and among the City of Port Angeles,
hereinafter called "City," TEK Construction, Inc., hereinafter called "Contractor"; and
William Ott, Ott Construction Consultants.
WHEREAS, the City and Contractor desire to retain the services of Ott to serve as a
Disputes Review Board, hereinafter called "the Board," for an issue that has arisen under
CSO Phase 2, Project WWI 0-08, hereinafter called "the Contract."
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, it is mutually agreed as follows:
ARTICLE I
PURPOSE
One dispute has arisen between the City and Contractor under the Contract. The dispute
concerns the responsibility of each party for the cost and performance of the specification
requirement for the design and installation of a recirculation loop to achieve full flow
functional testing of the six (6) vertical centrifugal sewer pumps, Section 01660-2.04 and
Drawing C-103, hereinafter called "the Issue". Section 9.1 of the Specifications of the
Contract, authorize the City and the Contractor to use a three-member Board to assist in
resolving disputes. The City and the Contractor reserve the right to establish a three-
member Board pursuant to that Section at any time. However,the City and the Contractor
believe that the Issue can be resolved by a one-person Board, rather than a three-person
Board as provided in Section 9.1. The City and the Contractor both are familiar with the
skills,knowledge, and ability of Ott. Considering the limited nature of the Issue, City and
the Contractor have elected to, and by this Agreement do hereby employ Ott as a one-
person Board. Ott, acting as the Board will consider the pending dispute and any other
disputes referred to him. He, in turn, will furnish non-binding findings and
recommendations to the City and the Contractor to assist them in the resolution of their
differences.
ARTICLE II SCOPE OF WORK
The Scope of Work of the Board is as generally outlined in Section 9.1 of the Specifications
of the Contract and in this Agreement, but for this Agreement is limited to the Issue. To
the extent that Section 9.1 conflicts with or differs from this Agreement, the terms of this
Agreement shall control. The time and location of Board meetings shall be determined
jointly by City, the Contractor, and the Board.
1
The City and the Contractor may refer additional disputes to Ott, acting as the Board," if
they both mutually agree to do so in writing. Unless the City and the Contractor do so
mutually agree, then Section 9.1 shall govern the formation of a Board to consider future
disputes.
It is expressly understood that the Board is to act impartially and independently in the
consideration of facts and conditions surrounding any dispute presented. Both City and
the Contractor shall be given an opportunity to present evidence to the Board. The
recommendations of the Board concerning any such dispute are advisory and non-binding.
The procedures to be followed by the Board, the City and the Contractor are set out in the
attached Appendix A, which is incorporated herein by this reference. In the event the
parties find it necessary or convenient to specify any additional procedures, they may do
so by unanimous agreement. The following people are hereby authorized to agree to any
additional procedures:
Michael Puntenney, City Engineer, for the City;
Dean Irwin, TEK Construction,Inc., for the Contractor; and
William Ott for the Board.
ARTICLE Ill
RESPONSIBILITIES OF THE PARTIES
The Responsibilities of the Parties are:
Ott's Responsibilities:
Maintain impartiality, and avoid conflicts of interest.
Do not express an opinion of merit, in whole or in part, for any potential or other dispute
at any time prior the issue of a report, except when jointly requested by the City and the
Contractor.
Except as required when conducting a hearing which the City or the Contractor refuses to
attend, do not meet or communicate with either City or the Contractor in the absence of the
other.
Consider the facts and conditions forming the basis for a referred dispute impartially and
independently and evaluate the merits based on careful consideration of all contract
requirements, applicable law and regulations, and the facts and circumstances of the
dispute.
Refrain from undermining the clear intent of the contract, disregard or alter any
requirements of the contract or allocation of risk specified therein, or interfere with
2
respective rights, authority, duties or obligations of either the City or the Contractor.
City's Responsibilities:
Except for participation in the Board's activities as provided in the Contract and this
Agreement, do not solicit advice or consultation from the Board on matters dealing with
the conduct of work or resolution of problems which might compromise the Board's ability
to impartially resolve future disputes.
Furnish documents to the Board member pursuant to Appendix A.
The City Project Engineer for the project will, in cooperation with the Contractor,
coordinate the operations of the Board. The City,through the Project Engineer, will arrange
or provide conference facilities at or near the project site and provide secretarial and
copying services.
Contractor's Responsibilities:
Except for participation in the Board's activities pursuant to this Agreement, do not solicit
advice or consultation from the Board on matters dealing with the conduct of work or
resolution of problems which might compromise the Board's ability to impartially resolve
future disputes.
Furnish to the Board and to the City, one copy of pertinent documents, other than those
furnished by City as may be requested,by the Board.
ARTICLE IV
TIME FOR BEGINNING AND COMPLETION OF THE BOARD'S ACTIVITIES
The Board's jurisdiction under this Agreement shall end on the date of final payment under
the contract,unless terminated earlier under the terms of ARTICLE VIII of this Agreement.
ARTICLE V PAYMENT
Ott shall be paid two hundred dollars ($200.00) per hour, or portion of an hour, he serves
as the Board in an amount not to exceed $10,000.00. The City and the Contractor shall
each pay one-half the total amount earned by Ott.
Each month, Ott shall submit a statement of charges for that month to both the City and the
Contractor. If both the City and the Contractor approve the statement, the City shall pay
the full amount due to Ott. In addition, any incidental costs, including but not limited to
conference room rental, facility cost, support costs, etc. will require both the City and the
Contractor to approve each invoice. Each party shall be responsible for half of the cost of
incidentals. The City is willing to provide at no cost the use of its conference rooms at City
Hall for the purposes of disputes resolution.
3
Approval of invoices shall not be unreasonably withheld. The City shall process a
deductive bilateral change order(s) to the contract in the amount of one half of the total of
the approved invoices.
ARTICLE VI CONFIDENTIALITY AND RECORD KEEPING
Ott shall not divulge information identified as confidential that has been acquired during
Board activities without obtaining prior written approval from the City and the Contractor.
All documents and other products or materials produced by the Board in connection with
the services rendered under this Agreement shall be the property of the Board.
Ott shall maintain all records pertaining to this Agreement for inspection by the City or the
Contractor for a period of three years following the end or termination of this Agreement.
ARTICLE VII ASSIGNMENT
Without the prior written consent of both the City and the Contractor, Ott shall not assign
any of the work of this AGREEMENT. The Board may, with mutual agreement of the City
and the Contractor, hire experts to assist the Board in understanding complex technical,
financial or legal issues.
ARTICLE VIII TERMINATION
This Agreement may be terminated, and Ott may resign, at any time, without stating a
cause, upon mutual agreement of City and the Contractor.
ARTICLE IX LEGAL RELATIONS
The parties hereto mutually understand and agree that Ott, in the performance of duties of
the Board, is acting in the capacity of an independent contractor. He is not an agent or an
employee of either City or the Contractor.
City and the Contractor acknowledge that Ott is acting in a capacity intended to facilitate
the resolution of disputes. Accordingly, it is agreed and acknowledged that, to the fullest
extent permitted by law, Ott shall be accorded quasi-judicial immunity for any actions or
decisions associated with Board activities.
City and Contractor hereby agree to indemnify and hold Ott harmless from and against all
claims, damages, losses and expenses, including but not limited to attorney's fees arising
out of and resulting from his decisions and recommendations of the Board.
4
ARTICLE XI
VENUE, APPLICABLE LAW AND PERSONAL JURISDICTION
In the event that any party deems it necessary to institute legal action or proceedings to
enforce any right or obligation under this Agreement,the parties hereto agree that any such
action shall be initiated in the Superior Court of the State of Washington, situated in
Clallam County. The parties hereto agree that all questions shall be resolved by application
of Washington law and that the parties to such action shall have the right of appeal from
such decisions of the Superior Court in accordance with the laws of the State of
Washington. Each party to this Agreement hereby consents to the personal jurisdiction of
the Superior Court of the State of Washington, situated in Clallam County.
ARTICLE XII
OTHER
Insurance.
Ott shall obtain insurance of the types described below that provides coverage during
the term of this agreement and extensions or renewals. These policies are to contain,
or be endorsed to contain, provisions that 1) Ott's insurance coverage shall be primary
insurance with insurance or insurance pool coverage maintained by the City and the
Contractor as excess; and 2)Ott shall give notice to the City and the Contractor of any change
or cancellation of the insurance within two days of the change or cancellation.
Commercial General Liability insurance covering independent contractors' liability
and damages for personal injury and property damage with combined single limits not
less than $1,000,000.
Automobile Liability insurance with combined single limits of liability not less than
$1,000,000 for bodily injury, including personal injury or death and property damage
shall be required if delivery of service directly involves Board's use of motor vehicles.
Ott shall submit to the City and the Contractor copies of the insurance policy
declaration pages as evidence of insurance coverage required by this ARTICLE.
Nondiscrimination.
In hiring or employment made possible or resulting from this Agreement, there shall
be no unlawful discrimination against any applicant for employment because of sex,
age, race, color, creed, national origin, marital status or the presence of any sensory,
mental, or physical handicap,unless based upon a bona fide occupational qualification.
This requirement shall apply to but not be limited to the following: employment,
advertising, layoff or termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship. No person shall be denied or subjected
to discrimination in receipt or the benefit of any services or activities made possible
by or resulting from this Agreement on the grounds of sex, race, color, creed,national
5
origin, age except minimum age and retirement provisions, marital status, or in the
presence of any sensory, mental or physical handicap.
Notices.
Any notice required under this Agreement will be in writing, addressed to the
appropriate party at the address which appears below (as modified in writing from time
to time by such party), and given personally, by registered or certified mail, return
receipt requested, by facsimile or by a nationally recognized overnight courier service.
All notices shall be effective upon the date of receipt.
:Deputy Director, Public Works and Utilities Department
P.O. Box 1150
321 East 5'1' Street
Port Angeles, WA 98362
(360) 417-4500
TEP Consulting Inc.
1980 W Bakerview Road
Bellingham, WA 98226
By: Dean Irwin
Title: President
Phone: ( 360) 31 2 . 5530
Disputes Review Board
William Ott
129 E Lake Sammamish Ln.NE
Sammamish, WA 98074
Phone Number: 425-890-3533
Entire Agreement.
i
j This agreement contains the entire Agreement between the parties hereto and no other
agreements, oral or otherwise, regarding the subject matter of this agreement, shall be
deemed to exist or bind any of the parties hereto. Any party may request changes in
the agreement. Proposed changes which are mutually agreed upon shall be
incorporated by written amendment to this agreement
6
This Agreement is made and effective on
Oil
(Month) (Day) (Year)
By and among:
Board MEMBER
Signature:
Name:
CONTRACTOR City OF RT ANGELES
By: ~ ` i BY: ��
Title, Title: City Manager
ATTEST:I' &�Lu
` On
enni er Veneklasen
City Clerk
7
Appendix A
Procedures and Guidelines
Purpose
The intent of this document is to establish procedures and guidelines for the use of a
one-member Dispute Review Board.
Objective
The goals and objective of this document include:
1. To create a process and procedure that provides the opportunity for the Parties and
the Board to consider issues using an informal review process.
2. Provide to the City and the Contractor the Board's assessment of an issue and to
render advice on the strengths and weaknesses of each party's position relative to the
contract documents.
Presentation Guidelines
1. When an issue arises and the City and Contractor agree to submit the issue to the
Board, the City shall notify the Board. Within three days after the notice, City will
furnish to the Board copies of the plans, specifications, addenda and other
documents, which are or may become pertinent to the activities of the Board. Not
later than five days after that, the Contractor shall furnish to the Board documents,
which are or may become pertinent to the activities of the Board, except documents
furnished by City. The Board shall familiarize himself with these documents.
2. Then, not later than three business days after the initial notice, both the City and the
Contractor shall suggest dates for an informal presentation to the Board. The parties
will cooperate to set a date for the informal presentation not later than thirty days
after the notice.
3. Not less than 10 days prior to the informal presentation to the Board, the City and the
Contractor each shall submit to the Board a short statement regarding the nature of
the issue.
4. Not later than five days prior to the informal presentation, the Parties will exchange,
and transmit to each other and to the Board, a one-page outline of what they will
present.
5. The Parties will not prepare the usual Position Paper as described in the Formal DRB
Procedures and Guidelines.
8
6. At the Informal Presentation, the Parties will only present information that has been
openly discussed and noted in the outline provided to the Board pursuant to
paragraph 4 above.
7. The DRB may request that one or both of the Parties provide additional information.
8. During the Informal Presentation, each party will be allowed ample time to fully and
fairly present their position without interruption.
9. After the initial Presentations, the Parties will respond to questions from the Board.
10. After the initial round of questions, each Party will be provided ample time to
respond to the other Party's position. During this time, the Board may ask additional
questions.
11. The Board may visit the project site if doing so would assist in providing analysis and
a recommendation to the parties.
12. The Board will close the informal presentation when each Party affirms that they
have presented all they wish to present along with answering all the questions for
which they wish to respond.
1. After the close of the informal presentation the Board will analyze the presented
information. The Board will formulate a recommendation and provide a verbal
response within the same day as the informal hearing.
2. If mutually requested by both the City and the Contractor,the Board will outline
or write down its recommendation, including rationale, to ensure clarity.
3. Although both parties should place weight upon the Board's recommendations, the
Board's recommendation is not binding on any of the Parties,including the Board. Either
party may appeal a recommendation to the Board for reconsideration. However, if the
Board's recommendations do not resolve the dispute, all records, and written
recommendations may be admitted as evidence in any subsequent litigation.
9
x
A �GELES
W A S H I N G T O N, U. S. A.
�� Le al De artment
s .a
6� December 28, 2015
y Mr. William P. Ott TEK Construction, Inc.
4 :
� 129 E. Lake Sammamish Shorelane NE 1980 Bakerview Road
Sammamish, WA 98074 Bellingham, WA 98226
Dear Mr. Ott and Mr. Irwin,
Enclosed for your records please find a fully executed original Disputes Review Board
Three Party Agreement between the City of Port Angeles, TEK Construction, and William
' Ott.
s ? f
Very truly yours,
P g i
z
Y
r � E Jeanie DeFrang
Legal Administrative Assistant
f y
a y
J �
4 r
r
f Phone: 360-417-4530/Fax: 360-417-4529/TTY: 360-417-4645
{ Website: www.cityofpa.us
321 East Fifth Street- P.O. Box 1150/Port Angeles, WA 98362-0217
t
NUMBER
T E K Letter of Transmittal
construction, inc.
1980 Bakerview Rd. Bellingham, WA 98226
Phone (360) 312-5530 Fax(360) 312-5532 Date December 18 2015 1 Job No. 21501
Attention
To: Legal Department
City of Port Angeles RE:
PO Box 1150 Port Anizeles CSO Phase 2 Pr
Port Angeles, WA 98362
WE ARE SENDING YOU:
_X_ATTACHED UNDER SEPERATE COVER VIA
PLANS SPECS DRAWINGS
COPIES No. DATE DESCRIPTION
3 originals Disputes Review Board Three Party Agreement
THESE ARE TRANSMITTED AS CHECKED BELOW:
For Approval Approved as Submitted Resubmit for Approval
For Your Use Approved as Noted Submit for Distribution
X As Requested Returned for Correction: Return Corrected Prints
For Review and Comment
REMARKS:
Thank you
Copies to: Signed: 6
WHITE-TRANSMITTAL COPY CANARY-OFFICE COPY PINK-JOB FILE COPY