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
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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
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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
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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
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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
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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
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