The URL can be used to link to this page

Home My WebLink About1996-07-22 96-324 RESOLVECOUNCIL ACTION Item No. 96-326 Date duly 22. 1996 Item/Subject: Resolve, Ratifying Action of City Manager i Executing Amendment to Agreement with Leo A. Daly Company Responsible Department: Legal Coamientary: Per 'recent discussionsbythe City Council in executive session, the City Manager last week executed's modification to the City of Bangor design services agreement with Leo A. Daly Company for the BIA terminal building expansion project. The modification adds an arbitration clause to the City's agreement with Daly, so as to - permit arbitration of our claims against Daly currently pending in the U.S. District Court under docket no. 95-0116-B. The City Manager executed the modification at the request of our outside counsel in this matter, in advance of formal Council approval, in order to expedite hearing an motion for stay and referral to arbitration to be filed in docket no. 95-0116-B. The attached Council Resolve would ratify the City Manager's signature on the agreement modification. Depeitm�t Mead Finance Director CityCity Solicitor --Z r Passage First Reading Referral Page I of 7 City Manager Associated Information: Resolve, Modification to Agreement Finance Director CityCity Solicitor --Z r Passage First Reading Referral Page I of 7 Assigned to Councilor Tyler July 22, 1996 96-324 CITY OF BANGOR (TITLE,) IPWI Ratifyigg_npuon of Citx Manager in executing �................_ ...._....._ ......_. ...._......._..._......._.._.. Amendment to Agreement with Leo A. Daly Company eg Ge CIN County of W Cltg o(Bnnpor: RESOLV&D, the action of the City Manager in executing a modification to an agreement between the City of Bangor and Leo A. Daly Company dated November 13, 1990 for design services on the BIA terminal building renovation and expansion project is hereby ratified and confirmed. A copy of the modification as executed by the City Manager is attached to this Resolve and is incorporated herein by reference. IN CITY COUNCIL July 22. 1996 Passed 96-324 E E 5 0 L V E Ratifying Action of City Manager in Executing Aemendment to Agreement with Leo A. Daly Company 9,,.J6 96-324 MODIFICATION NO._ To AGBEEM$NT HEINS= ONNER AND ARCHITECT THIS MODIFICATION AGRNH HNT made this day Of .July, 1996 by and between the City of Bangor, 73 Harlow Street, Bangor, Maine (the "Owner") and the Leo A Daly Company, 1201 Connecticut Avenue, M.N., Tenth Floor, Washington, D.C. 20036 (the "Architect"). RBCITAL9 1. The Owner and the Architect entered into an agreement dated November 13, 1990 (the "Original Agreement") providing for design and construction administration services with respect to expansion and renovation of the Domestic and International Arrivals Buildings at Bangor International Airport, Bangor, Maine. 2. Certain disputes have arisen between the parties concerning the performance by each of the terms and conditions of the Original Agreement which such disputes are the subject matter of a certain action pending in the United States Federal District Court for the District Of Maine, Northern Division, Civil No. 95-0116-B (the "pending Action"). 3., In order to foster the prompt resolution of this dispute, each party believes that: (i) it is to their benefit to amend the Original Agreement so as to add to It an arbitration clause containing the language used in .form 8141 0£ the forme supplied by the American Institute of Architects for the supply of design services; and (11) to refer the entire scope of the controversy covered by the Pending Action to arbitration under the Construction Industry Arbitration Rules of the American Arbitration Association. 4. Accordingly, this Agreement is being entered into to add this clause to the Original Agreement and to state the terms and conditions under which the Pending Action shall be stayed and the controversy subsumed by it shall be referred to arbitration. - The Architect hereby expressly warrants and represents that the execution of this Agreement does not require the consent of its Insurers and its execution and performance shall have no adverse impact upon nor operate to limit or defeat any coverage now in effect for errors and =lesions on the part of the Architect or its subcontractors or coneultanta for which it may be liable to the Owner. The parties hereby agree to amend Original Agreement by deleting Article substituting therefor new Articles 7.1 read in their entirety as fallowe: Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be subject to and decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association Correctly in effect unless the parties mutually agree otherwise. Demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question had arisen. In no event shall the demand for arbitration be made after the data when institution of legal or equitable proceedings based on such claim dispute or other matter in goestion would be barred by the applicable statutes of limitations. No arbitration arising out of or relating to Ghia Agreement shall include, by consolidation, or Joinder or in any other manner, an additional person or entity not a party to this Agreement, except by written consent containing a specific reference to this Agreement signed by the Owner, Architect, and any other person or entity Sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described In the written consent or with a person or entity not named or described therein. ghe foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties to thin Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction .thereof. 96-324 7.4 The award rendered by the arbitrator or arbitrators shall be final, and Judgment may be entered upon it in accordance with applicable law is any court having Jurisdiction thereof. 7. Referral of the Pandina Action to Arbitration Within five business days of the execution of this Agreement, the parties shall refer the entire controversy between them encompassed by the Pending Action to arbitration under the following terms and conditions: (a) The matter shall be determined by a three- person panel consisting of an attorney, a contractor representative Bud a designer repreeentative. (b) The panel shall be selected from a select list prepared by the Boston Regional office of the American Arbitration Association, which shall administer the case in accordance with its customary administrative procedures. (a) The conduct of the proceedings shall be governed by the Construction Industry Arbitration Rules in effect as of the time the Case is filed by the parties. (d) The hearings shall be held in Portland, Wain unless the parties otherwise mutually agree. (a) The arbitrators will be engaged with the knowledge that the parties wish to have the hearings commence in october, 1996, if possible, sad that they wish to conduct the hearings in blocks of four consecutive days with minimal breaks between such blocks. (f) As is provided in the Construction Industry Arbitration Rules, the parties shall Jointly request and participate in a prehearing conference in .July, 1996, if possible. - a. Discovery The parties agree to conclude discovery in this cage as follows: (a) Depositions 1. All depositions shall be deemed concluded, except am provided below; 96-324 2. All depositions already taken, completed or not completed, may be used in the arbitration. (b) Production of Documents 1. The Owner shall produce its telephone records, Ray Royce draft reports, its briefs filed with the AAR 1n the wolf ease, -its Pie -Application Pare submitted to the FAA, and its Airport Neater Plan. 2. Daly shall produce its telephone records and its time and budget records. 3. The production of the foregoing records shall conclude production of records on the part of both parties. (c) Expert Reports 1. Both parties Shall have the obligation to produce to the other written reports of each expert when they expect to call In their case in chief; much reports shall be detailed and shall comply in all respects with the provisions and intent of the requirements of the Federal Rules of Civil Procedure with respect to such reports. 2. The Owner sba11 serve on Daly final reports of its experts on or before .auly 15, 1996 and Daly shall serve On the Owner such reports on or before August 15, 1996. (d) Other Discovery No other form of discovery shall be required of either party, provided that neither party shall be foreclosed from Seeking Same from the panel upon a showing tbat: (d) in the case of the proposed deposition Of an expert, the report tendered is incomplete or vague; (ii) in general an extraordinary need egists, and provaded further that either party shall be able to apply to the panel for authority to cake a deposition it necessary for the purposes of preserving testimony. 9. interest The parties agree that any award in favor of the Owner or Architect shall bear interest, either prejudgment, postjudgment or both as appropriate, at the applicable rates applied in civil eases filed in U.S. District Court 4 96-324 in the State of Maine, as if the matter had not been referred to Arbitration. The ,parties further agree to request that should the arbitrators make any award that entitles the recipient to interest, that ouch interest be calculated =a epeoi£ied as a separate line item in the award, with a designation as to which portions of such interest are prejudgment or postjudgment-. The parties shall jointly stipulate to an amendment of the pleadings in the Pending Actions and file appropriate motions anas to advise the Court of the terms of this Agreement and to Provide that the Court enter an order referring this matter to Arbitration under Title 9 of the United States Code and retaining Jurisdiction with respect to entering judgment on the award. Is WITHERS WHEREOF, the parties have executed this Agreement as of the data first above written. 21ty of Bangor Leo A Daly CcmpanY Ey.— Ito: