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HomeMy WebLinkAboutVII(A) Settlement Agreement with Ryan Incorporated – Update Agenda, 7/20/04 Item VII A IN Fo L EY FOLEY&LARONER LLP ATTORNEYS AT LAW 111 NORTH ORANGE AVENUE,SUITE 1800 ORLANDO,FL 32801-2386 P.O.BOX 2193 ORLANDO,FL 32802-2193 TELEPHONE:407.423.7656 FACSIMILE:407.648.1743 WWW.FOLEY.COM MEMORANDUM CLIENT-MATTER NUMBER 020377-0594 TO: The Honorable Mayor and City Commissioners FROM: John P. Horan, Assistant City Attorney Paul E. Rosenthal, City Attorney CC: Rob Frank, City Manager David A. Wheeler, Director of Public Works DATE: July 14, 2004 RE: Ryan Incorporated Eastern("Ryan")v. City of Ocoee Case No. 03 CA 644 Settlement Update The City has received the attached letter dated July 1, 2004, from the Florida Department of Transportation ("FDOT") asserting a claim in the amount of $73,613.35 for additional costs incurred by Florida's Turnpike Enterprise allegedly due to the untimely construction of the Maguire Road Bridge by Ryan. This claim was originally asserted by the FDOT during the course of the project by a letter dated November 1, 2001, a copy of which is also attached. The claim was considered by Professional Engineering Consultants, Inc. ("PEC"), the City's Engineer on the project, and was rejected for the reasons identified in the November 13, 2001 letter from PEC to Jim Shira, a copy of which is also attached. Mr. Shira passed on PEC's November 13, 2001 letter together with his own letter of November 14, 2001, a copy of which is also attached. The City heard nothing from FDOT until the July 1, 2004 letter, which was distributed to the City Attorney subsequent to the public meeting on July 6, 2004, at which Assistant City Attorney, John Horan made a presentation to secure the approval of the City Commission to the settlement that had been reached with Ryan. FOLEY&LARDNER LLP 006.342213.1 • FOLEY The very late submission of this claim by FDOT, which the staff believes to be meritless, nonetheless impedes the City from giving a full release to Ryan without possibly exposing itself to liability to FDOT. Further, the City will not be able to assert in its settlement documents that it is not aware of any claims that the City may have against Ryan. Staff is working at this time to secure an agreement among the settling parties to exclude this claim from the releases given by the City. Given these developments, the City Attorney needs to advise the City Commission concerning the effect of this late asserted claim on the settlement with Ryan. JPHO/pwa 2 FOLEY&LARDNER LLP 006.342213.1 07/12/2024 09:05 4076567835 ENGINEERING PAGE 01 . C; 1.)/Wr..,,-1- .1 1,,,,I , •::: . . 161 TL( in\'s9 July f,2004 ( ,�\ PoBt-tr Fax nota 7671 a ' v�g.o ! VMtif . ;1�.. •-. lir immurii, Tail l.:fiPRi1F Mr.Eugene Williford e City Manager p10"°e . Phone It Operates the statewide City of Ocoee Fa'--74 p Taman System as 150 North Lakeshore Drive ` Dart of the Florida Ocoee,Florida 34761 Department of Trtn:Dm it/on Re: Additional Costs incurred by Florida's Turnpike Enterprise due to the )EB BUSH Corrsbuctlo»of the Maguire Road Bridge governor . lost AIM Dear Mr.Williford: Secretary at rraestlertatien JAMES L.ELY The City of Ocoee and Florida's Turnpike Enterprise executed a Joint Participation Eagatinn Drrecter Agreement (JPA) regarding the widening of the Maguire Road Bridge. The growth of the turndlxi needgu ter;: City of Ocoee required the widening of Maguire Road and the Turnpike needed to add Nue Post 263,8leg.3313 auxiliary lanes between SR 429 and SR 408 to alleviate congestion.The Turnpike agreed to turkey Ocoee.Uk3 er ice PIM 3 participate in the reconstruction of the Maguire Road Bridge in an amount up to FL $1,000,000.00. Neilin8 Address: . P.O.lex 613069 The City of Ocoee contracted with Ryan Incorporated Eastern for the widening of the Donee.FL 34161 Maguire Road Bridge and Florida's Turnpike Enterprise contracted with Hubbard Fel:407.532.3999 Construction Company for the construction of the auxiliary lanes from BR 429 to SR 408. Fur;407.332.3989 When the time came for the Turnpike to start its project, the City's contractor was behind www.tlaridutarepike.cen schedule so the Turnpike delayed the Notice to Proceed with Hubbard the maximum amount of time allowed (90 days) to allow Ryan time to complete the work that was in conflict with the construction of the auxiliary lanes. Even after the delay by the Turnpike of the Notice to Proceed to Hubbard, Ryan's work was still not sufficiently complete to allow Hubbard to commence work in this area. , Because of their lack of access to the Turnpike at the Maguire Road Bridge, Hubbard filed a claim for delay to their work in the amount of$83,848,35, which was paid by the Turnpike. Hubbard was also directed to complete other items of work that had not been completed by Ryan so they (Hubbard) could proceed with their project, which cost the Turnpike an additional $8,875.81. Further, there was another $891.19 in premium costs for the final settlement of these issues. The total amount attributable to the delay caused by Ryan was $73,613.35. The contract between the City of Ocoee and Ryan requires the contractor to hold harmless the City of Ocoee for all damages. Florida's Turnpike Enterprise requests tb work with the City of Ocoee in recovering the$73,613.35 from Ryan. We appreciate your cooperation in this matter. I can be reached at(407)264-3086. Sincerely, oiacezi.ndof/ . / William F.Stoup, P.E. Turnpike Design Engineer ORM t�� • WFS/Mt'tc .. 11—O I cc: Nancy Clements,Jack Leonard,Tdm Pridgen,Tom Driscoll,Carlos Bonilla, lie "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAYOR•COMMISSIONER Ocoee S.SCOTT VANDERGRIFr CITY OF OCOEE DANNY ANNYL a. 150 N.LAKE.SHORE DRIVE SCOTT ANDERSON OCOEE,FLORIDA 34761-2258 RUSTY JOHNSON r�•ir �.}� (407)905-3100 NANCY J.PARKER �*Op 6000`> CITY MANAGER JIM GLEASON November 14,2001 Kevin J.Thibault,P.E. Director of Planning and Production Florida Department of Transportation Turnpike District P.O. Box 613069 Ocoee,FL 34761 Re: Turnpike Mainline Auxiliary Lanes from SR 408/East-West Expressway to the Western Beltway(FPID Number 243013-3-52-01)and the Maguire Road and Bridge Improvements Being Provided by the City of Ocoee,Orange County. Dear Mr. Thibault: Upon receipt of your recent letter(11-1-2001)concerning possible delays due to conflicts of the City's Maguire Road and Bridge Project and the District's Auxiliary Lanes Project, I requested a comprehensive account and review of the schedule, documentation and correspondence concerning the two improvement projects. The City's design and CEI engineers (Professional Engineering Consultants, Inc. (PEC)) have reviewed the files, contracts and documentation and have responded to the request(copy enclosed) Based on the information provided, the City of Ocoee is in compliance with the "Joint Project Agreement" (JPA), Special Permit issued by the District for construction of the Maguire Road Bridge and the construction contract with Ryan, Incorporated for construction of the road and bridge improvements. The City of Ocoee entered into a contract with Ryan Incorporated as of August, 2000 for a 730-day construction period to complete the Maguire Road and Bridge Project. We are approximately 450 days into the 730-day contract and have authorized a change of only six (6) days. I believe the City/PEC has provided copies of the construction schedule to your Turnpike staff and have also provided your staff with monthly progress meeting minutes. Based on the enclosed letter from PEC, it appears the contract for the Auxiliary Lanes was awarded without a thorough understanding of the scheduled completion of the Maguire Road Bridge. The construction schedule indicates a final finish date of January 4, 2002 for the demolition of the existing bridge and completion of the new median pier. I want to stress that the "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAYOR•COMMISSIONER Ocoee S.SCOTT VANDERGRIFT R CITY OF OCOEE DCOMMISSIONERS LL � 150 N.I,AxESHORE DRIVE SCOTT ANDERSON OCOEE,FLORIDA 34761-2258 RUSTY JOHNSON �'"•jr o 4% (407)905-3100 NANCY J.PARKER *of Gaol`` CRY MANAGER JIM GLEASON City desires to cooperate with the Turnpike District in any possible means to better facilitate the timely completion of both improvement projects. If you would like to meet to discuss possible options to minimize any conflicts between the two projects, please contact me at(407) 905-3100 ext.9-1505. Sincerely, CITY OF OCOEE James W. Shira,P.E. City Engineer/Utilities Director JWSrbw c: Jim Gleason,City Manager Paul Rosenthal,Esq.,City Attorney Ken Hooper,PEC Jim Ely,District Secretary Bruce Seiler,Director of Operation Walt Lange,Construction Engineer Gary Geddes,Area Construction manage Joseph Chinelly,Project Construction Manager Paul Staes, Project Manager PEC PROFESSIONAL ENGINEERING CONSULTANTS, INC. flci -3.G.3 November 13,2001 Mr.James W. Shira,P.E. City of Ocoee City Engineer/Utilities 150 North Lakeshore Drive Ocoee,FL 34761 Dear Mr. Shira: I have reviewed the letter dated November 1,2001 from Mr.Kevin Thibault,P.E.,Director of Planning and Production - FDOT Turnpike District. Mr. Thibault expressed his disappointment with the progress of the demolition and construction of the new Maguire Road Bridge over the Turnpike. The following is a chronological review and summary of the facts concerning the Maguire Road Bridge and the Turnpike's involvement. 1. Ocoee and the Turnpike District entered into a WA for reimbursement of a portion of the cost of expanding the Maguire Road Bridges on September 8, 1999. Page 2,first WHEREAS of the JPA identifies the auxiliary lane project as Financial Project ID 243013-3 and states the bridge work and auxiliary lane work shall be performed in conjunction. Page 5, Section 3d of the JPA states the Department shall reimburse the City during FY 2004-2005,providing the City has completed the bridge work. The Department stafftold the City that FY 2004-2005 was appropriate because that's the planned year for construction of the auxiliary lanes project, thus was the appropriate year for reimbursement. Page 7, Section 4 of the WA states the City has until June 1, 2001 to commence construction or the contract(WA)may be terminated. This is the only reference to construction schedule in the WA. The City awarded the construction contract August, 2000,nearly one year ahead of the WA schedule. 2. The City received a Special Permit(TP75-BR002-00)dated April,2000 authorizing the construction of the Maguire Road Bridge over the Turnpike. Special condition 4 of the Special Permit incorporates the WA in its entirety. This includes all schedules and construction criteria. • engineers 'Engineering Our Community` Mr. James W. Shira,P.E. November 13, 2001 Page 2 3. The City of Ocoee awarded a contract (August, 2000) to Ryan, Incorporated to construct a 1.956 mile length of four and five lane roadway and reconstruct a bridge over the Turnpike at Maguire Road. The contract period for construction of the project is 730 days. At no time during the development of the JPA or issuance of the Special Permit did the Turnpike staff request any special schedule for the bridge construction. The only schedule references were those contained in the JPA(City must start construction by June 1,2001 and the reimbursement was to occur in FY 2004/2005, the scheduled year for the auxiliary lanes project). The Turnpike staff was sent a copy of the preconstruction conference agenda(7-21- 00)and their presence was requested as identified in the special permit. According to the preconstruction conference minutes, no one from the Turnpike District attended. . At a construction progress meeting in late 2000, the Turnpike staff indicated the District was considering the construction of new auxiliary lanes at the Maguire Road Bridge. The Turnpike staff indicated there were no current plans or schedule. The Turnpike staff acknowledged that they would be responsible to coordinate the projects if conflicts were anticipated. The Turnpike District continues to receive monthly progress reports. It should be noted that the original construction contract schedule of 730 days has only been modified to add six days to the schedule. 4. In April, 2001, the Turnpike District staff(Joe Chinelly)notified PEC and the City that a construction contract for the auxiliary lanes was awarded to Hubbard Construction and was to start August; 2001. At no time prior, has PEC or the City received any notice of intent to start the construction of the auxiliary lane project. A memo dated August 30, 2001 was sent to Joe Chinelly reminding him of the discussion of early start, early finish dates and the need to note the 51-day float. Contrary to the statement in Mr. Thibault's letter, partnering meetings were only conducted after the award of their construction contract. No prior planning was conducted to avoid impacts of the two projects. • 5. On October 15,2001,PEC received a memorandum and schedule from the Turnpike . District(Tim Gough, P.E.)indicating a need to start the auxiliary Ianes project no later than January 3, 2002. The current schedule for completion of the bridge, including all float days,indicates a completion date of January 4, 2002. Mr. James W. Shira,P.E. November 13, 2001 Page 3 In summary, the City and its engineering representative have attempted to partner and coordinate the MaguireRoad Bridge Project with the Turnpike staff. The Turnpike staffwas invited to attend the pre-construction Meeting of July 21,2000. Monthly progress meeting minutes have been sent to the Turnpike staff upon request beginning March,2001. I believe the total problem is based on the fact that the Turnpike District issued a construction contract for the auxiliary lanes prematurely and without any input from the City or its engineering representative. The construction plans for the auxiliary lanes show the Maguire Road Bridge as a completed project. These plans were the basis for awarding a construction contract. I believe this is the real source of the problem. We are available to meet with you and the Turnpike staff to resolve the issue and attempt to complete both construction projects in a timely manner. Sincerely, PROFESSIONAL ENGINEERING CONSULTANTS,INC. � ie K Ho• ger Principal G:lclericaN3IGHWAY1PEC\OE-353W52g.11r