HomeMy WebLinkAboutID-3221City of Palo Alto (ID # 3221)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 11/5/2012
City of Palo Alto Page 1
Summary Title: Approval of Amendment No 4 for Turner for Mitchell Park
Library & Community Center
Title: Approval of Contract Amendment No. 4 for Additional Construction
Management Services with Turner Construction, Inc., to add $2,052,016 for a
Total Amount Not to Exceed $5,835,761 for all three Libraries Utilizing Bond
Funds
From: City Manager
Lead Department: Public Works
Recommendation
Staff recommends that Council approve and authorize the City Manager to
execute Amendment No. Four to Contract C10131631 with Turner Construction,
Inc. (Attachment A), to add $2,052,016 for additional construction management
services for the MPLCC project for a total contract amount of $5,835,761, of
which $5,265,334 is for the MPLCC project. This represents a 64% increase in the
MPLCC budget for construction management services.
Executive Summary
The Mitchell Park Library and Community Center (MPLCC) project has
experienced substantial construction delays and an unusually large number of
change orders. The current schedule from the contractor (Flintco) shows the
project being completed in Spring 2013, approximately one year later than the
original scheduled date for project completion. Construction problems include
Flintco’s failure to properly schedule and coordinate work and inspections, the
failure and City’s rejection of defectively installed building components, and
Flintco’s failure to properly manage key subcontractors through the course of the
project.
City of Palo Alto Page 2
The City hired Turner Construction Co. to provide construction management
services for the MPLCC project. The City’s contract requires Turner to perform
construction management services for a maximum “not to exceed” amount,
regardless of project delays. However, given the extensive delays experienced on
the project, Turner contends that it is owed additional compensation. In addition,
Turner has indicated to the City that if the City does not pay it additional funds, it
will begin removing personnel from the project, which could further extend the
project completion date and raise project costs. To avoid additional delays on the
MPLCC and to avoid a mid-project contract dispute with Turner, Turner and the
City have negotiated a contract amendment that will keep Turner on the job at a
staffing level commensurate with the existing construction activity while at the
same time reserving the City’s rights to assert that Turner is not entitled to such
additional funds. The amendment is structured so that the City may recover some
or all of these funds from Turner depending upon the outcome of future
proceedings. Given the need to complete the project without further delays or
contractual disputes, it is important to fund Turner at this time so that any further
construction delays are minimized and the MPLCC is open and available for public
use.
Background
Measure N, which passed on November 4, 2008, includes funding for renovation
of the Downtown Library, construction of a new and expanded Mitchell Park
Library and Community Center (MPLCC), renovation and expansion of the Main
Library and renovation of temporary facilities to accommodate the various library
closures. The City entered into an agreement with Group 4 Architecture,
Research + Planning, Inc. (Group 4) to provide the architectural services and with
various contractors to provide the construction of the three libraries and the
temporary facilities. The City issued a Request for Proposals (RFP) for the
construction management services for all of the facilities and Turner Construction,
Inc. (Turner) was selected. On September 14, 2009, the City and Turner entered
into a contract for Turner to provide preliminary construction management
services for the Downtown and MPLCC projects. Amendments One (June 28,
2010), Two (August 5, 2010), and Three (September 12, 2011) to the Turner
contract were subsequently approved by Council to add construction
management services and compensation for all of the Measure N projects.
City of Palo Alto Page 3
Discussion
Flintco Pacific, Inc. (Flintco) is currently one year behind the original project
schedule. Additionally, Flinto has produced an unusually large number of project
documents, including change orders, claims, substitutions, requests for
information, and submittals that require a substantial amount of extra time by
Turner to process. Flintco’s failure to properly schedule and coordinate their
work and inspections has resulted in Turner spending additional time to intercede
in these activities. Consequently, construction support services provided by
Turner have far exceeded those budgeted by Turner.
Staff recommends amending Turner’s contract to extend the schedule for
completion of construction management (CM) services, including testing and
inspection (T&I) services, to the completion of the project and to add $2,052,016
in compensation as follows:
Comp Escrow Total
CM services from 6/1/12 to 9/4/12:$487,016 $487,016
CM services from 9/5/12 to 12/31/12:$680,000 $680,000
CM services from 1/1/13 to completion: $510,000 $510,000
T&I services from 7/1/12 to completion:$375,000 $375,000
Total compensation $1,055,000
Total compensation in escrow $997,016
Grand total $1,055,000 $997,016 $2,052,016
Contractual Protections for City
The negotiated contract amendment provides several contractual provisions that
safeguard the City’s right to later argue that Turner is bound by the limits in the
original “not to exceed” contract. First, approximately half of the funds
(approximately $1,000,000) will be escrowed in a set aside account administered
by the City. These funds will not be released until there is a final resolution
between the parties as to whether Turner is entitled to additional funds. If the
parties are not able to mutually resolve this issue, the dispute will be submitted to
a binding arbitration for resolution.
City of Palo Alto Page 4
Second, the contract amendment provides that both the funds as well as the
additional cash payments made under the agreement (approximately $1,000,000)
are subject to a Reservation of Rights which permits the City to later challenge
Turner’s entitlement to such funds. Like the escrow funds discussed above, if the
parties are not able to resolve the entitlement issue on their own, the dispute will
be submitted to binding arbitration for resolution.
Finally, the contract amendment contains a Tolling Agreement which allows the
City to defer any contractual or other claims it may have against Turner until after
the project is completed and any disputes with Flintco are resolved. In
construction disputes it is common for the City’s consultants to assist the City in
asserting or defending claims against and by the Contractor after the job is
complete. If such a dispute arises and the contractor is successful in prosecuting a
claim against the City, the City may elect to seek contribution from the
consultants and their insurance carriers. The contribution phase of a construction
lawsuit generally comes after the claim with the primary contractor is resolved.
The Tolling Agreement allows the City to preserve its ability to seek contribution
without having to file a claim prematurely. The Tolling Agreement is attached to
Amendment 4 as Exhibit E.
Resource Impact
A separate staff report has been prepared for an amendment to the Group 4
contract adding $692,810 in compensation. Funds for the recommended Turner
and Group 4 contract amendments are available in CIP PE-09006. The Group 4,
Turner and Flintco contracts and contract amendments encumbered to date as
well as the proposed amendments are as follows:
Contract Group 4
Architecture
Turner
Construction
Flintco
Construction
Original contract $3,827,280 $138,198 $24,365,000
Original Contingency -10%$2,436,500
Additional Contingency -10%$2,436,500
City of Palo Alto Page 5
Amendment 1 $92,034 $432,000 n/a
Amendment 2 $312,396 $3,008,250 n/a
Amendment 3 $3,192,000 $205,297 n/a
Amendment 4 $258,041 $2,052,016 n/a
Amendment 5 $220,670 n/a n/a
Amendment 6 $692,810 n/a n/a
Total Contract Value to Date $8,595,231 $5,835,761 $29,238,000
Note: The Group 4 and Turner amounts are for all the Measure N library projects.
Policy Implications
Amending this contract does not conflict with any current City policy.
Timeline
Construction of the new Mitchell Park Library and Community Center began in
September of 2010 and staff anticipates the facility opening to the public in Spring
2013.
Attachments:
·A -Turner Contract (PDF)
CITY OF PALO ALTO CONTRACT NO. CI0131631
AMENDMENT NO.4 TO CONTRACT NO. CI0131631
BETWEEN THE CITY OF PALO ALTO AND
TURNER CONSTRUCTION COMPANY
This Amendment No.4 ("Amendment") to contract No. C 10131631 ("Contract") is
entered into and made effective on October 31,2012, by and between the CITY OF PALO
ALTO, a California Charter City ("CITY"), and TURNER CONSTRUCTION COMPANY, a
California corporation with offices located at 60 S. Market Street, Ste. 1100, San Jose, California
95113 ("CONSULTANT") (City and Consultant may be referred to collectively as "parties" or
separately as a "party").
RECITALS:
WHEREAS, on September 14, 2009, the City and Consultant entered into the Contract
concerning, among other libraries in Palo Alto, the Mitchell Park library and community center
("Project"); and
WHEREAS, on June 28,2010, the parties entered into Contract Amendment No.1; and
WHEREAS, on August 5, 2010, the parties entered into Contract Amendment No.2; and
WHEREAS, on September 12, 2011, the parties entered into Contract Amendment No.3
(The Contract and Amendments Nos. 1,2 and 3 are collectively referred to as the "Contract");
and
WHEREAS, the contractor, Flintco, Inc., ("Contractor") hired to build the Project has
failed to complete the Project within the time specified in the related construction contract; and
WHEREAS, a dispute (the "Dispute") has arisen between City and Consultant over the
interpretation of the Contract, whereby on the one hand City contends the Contract is a "not to
exceed" contract for the completion of all work on the Project whenever completed such that
Consultant is not entitled to any additional compensation under the existing Contract, and
whereby on the other hand Consultant contends that the Contract was for a specific term for
Construction Phase Services related to Substantial Completion such that Consultant is entitled to
additional compensation to continue to provide such Services after that term; and
WHEREAS, the parties have agreed to enter into this Amendment on the terms set forth
belew-in ereer-te keep-Gensultant--en the-P.rejeet by eemp@nsating~and advanGing-the--sum.s to
Consultant on the terms and conditions set forth below and in the attachments and Exhibits
hereto; and
WHEREAS, in light of the foregoing, the parties wish to amend the Contract as set forth
below.
NOW THEREFORE, in consideration of the covenants, terms, conditions, and provisions
of this Amendment, the parties agree:
SECTION 1. The Recitals set forth above are hereby incorporated in and made a part of
this Amendment and the Contract by this reference. The parties agree that nothing contained in
this Amendment No.4, including all attachments and Exhibits hereto, is intended in any way to
be an admission or concession regarding, and in no way will be interpreted to impact their
respective positions, rights, claims and remedies associated with the Dispute, and that the
description of the Dispute, above, is for general reference and not intended to limit or constrain
either party's position with respect to the Dispute.
SECTION 2. Exhibit "A" to the Contract entitled "SCOPE OF SERVICES," is hereby
amended to add the following:
On or before February 1, 2013, the parties will work together to implement a plan to have
City-designated personnel assist Consultant in or perform certain Claims-related and other
aspects of the Contract, including services which Consultant contends are not included within
Consultant's Scope of Services as set forth in Contract Exhibit "A". Nothing herein is intended
to modify Consultant's obligation to perform Services under the Contract. If it is determined that
such City-designated personnel perform services that were within Consultant's Scope of Services
as set forth in Exhibit "A", as attached to Amendment No.3 to the Contract, City reserves all
rights to claim that all such sums so paid are recoverable from Consultant under the Reservation
of Rights procedures set forth in Exhibit C.
SECTION 3. SECTION 4 of the Contract, "NOT TO EXCEED COMPENSATION" is
hereby amended to read:
Subject to the Reservation of Rights and Set-Aside provisions set forth in Exhibit "C",
attached and incorporated by this reference, the compensation paid to CONSULTANT for
performance of the Services described above and in Exhibit "A," including payment for both
professional services and reimbursable expenses, shall not exceed Five Million, Three Hundred
Six Thousand, Three Hundred Fifty-Three Dollars ($5,306,353.00). In the event Additional
Services are authorized, the total compensation for services and reimbursable expenses shall not
exceed Five Million, Eight Hundred Thirty-Five, Seven Hundred Sixty-One Dollars
($5,835,761.00). The applicable rates and schedule of payment are set out in Exhibit "C",
entitled "COMPENSATION," which is attached to and made part of this Agreement.
Additional Services, if any, shall be authorized in accordance with and subject to the
------J3rov-is-iens-or.-E-1(hi,bit~ ". ON YhT-ANT-s-Aall B0t-n~0ei-v-e-an:Y-G0mpeBsali0A-f0r-Additi0Jlal
Services performed without the prior written authorization of CITY. Additional Services shall
mean any work that is determined by CITY to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services described in Exhibit "A".
SECTION 6. The following exhibits to the Contract are hereby amended to read as set
fOl1h in the following attachments to this Amendment, which are incorporated in full by this
reference:
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a. EXHIBIT "C" entitled "COMPENSATION" as attached hereto.
b. EXHIBIT "C-1" entitled "Hourly Rate Schedule" as attached hereto.
SECTION 7. Tolling Agreement: The parties agree to enter into the Tolling Agreement
attached hereto as Exhibit "E", and which is hereby incorporated by this reference, wherein the
parties shall agree to toll any and all statutes of limitations and contractual time bars as indicated.
The Tolling Agreement shall survive the termination of the Contract, unless earlier terminated as
provided therein.
SECTION 8. Except as herein modified, all other provisions of the Contract, including
any exhibits and subsequent amendments thereto, shall remain in full force and effect. In
particular (and without in any way whatsoever affecting all such other provisions of the Contract
referred to herein, including any exhibits and subsequent amendments thereto), the Term of the
Contract as previously set forth in Section 2 ofthe Contract entered into on the 14th day of
September, 2009 between the parties is again acknowledged to end June 1, 2013.
[REMAINDER INTENTIONALLY BLANK -SIGNATURE PAGE FOLLOWS]
3
IN WITNESS WHEREOF the parties have by their duly authorized representatives
executed this Amendment on the date first written above.
CITY OF PALO ALTO: CONSULT ANT:
By: _________ _ TURNER CONSTRUCTION COMPANY
City Manager
BY~~~
Name: n0J tiYI· OO'Jrue lill
APPROVED AS TO FORM:
Title: ~ N , §en2mJ 1v\.0!0.C(fY By: _________ _
Ci ty Attorney
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EXHIBIT "C" (page 1 of 5)
COMPENSATION
The CITY agrees to compensate the CONSULTANT for professional services performed in
accordance with the terms and conditions of this Agreement as modified by this Amendment,
and as set forth in the budget schedule below. Compensation shall be calculated based on the
hourly rate schedule attached as exhibit C-l up to the not to exceed budget amount for each task
set forth below.
For Subconsultants, such as Inspections, special inspections, electronic document services, and
photographic documentation services, the CITY agrees to compensate the CONSULTANT for
services performed in accordance with the terms and conditions of this Agreement as modified
by this Amendment, and as set forth in the budget schedule below. Compensation shall be
calculated based on the actual cost ofthe sub consultant, plus a fee of 5%, up to the not to exceed
budget amount for each task set forth below.
Subject to the Reservation of Rights and Set Aside provisions below, the compensation to be
paid to CONSULTANT under this Amendment for all services described in Exhibit "A" ("Basic
Services") and reimbursable expenses shall not exceed Five Million, Three Hundred Six
Thousand, Three Hundred Fifty-Three Dollars ($5,306,353.00). CONSULTANT agrees to
complete all Basic Services, including reimbursable expenses, within this amount provided that
in the event that testing, inspection, and/or other subconsultant services exceed the amount
allotted herein, the parties will negotiate a separate agreement for how such testing, inspection,
and other subconsultant services will be provided and paid for. In the event CITY authorizes any
Additional Services, the maximum compensation shall not exceed Five Million, Eight Hundred
Thirty-Five, Seven Hundred Sixty-One Dollars ($5,835,761.00). Any work performed or
expenses incurred for which payment would result in a total exceeding the maximum amount of
compensation set forth herein shall be at no cost to the CITY.
CONSULTANT shall perform the tasks and categories of work as outlined and budgeted below.
The CITY's project manager may approve in writing the transfer of budget amounts between any
ofthe tasks or categories listed below provided the total compensation for Basic Services,
including reimbursable expenses, does not exceed $5,306,353.00 and the total compensation for
Additional Services does not exceed $529,408.00.
5
EXHIBIT "C" (page 2 of 5)
COMPENSATION
DESCRIPTION: NOT TO EXCEED AMOUNT
BASIC SERVICES
Downtown Librarv Phase I -Design Phase
A Pre-construction Phase
Downtown Library Phase II -Construction Phase
A Turner Staff Services
B Testing and Special Inspections
C Electronic Documents
Downtown Library Phase ill Post Construction & Warranty Phase
$ 17545
$ 345,00.0
$ 12,000
$ 20,000
F Turner Staff Services $ 10,000
TOTAL DOWNTOWN LIBRARY BASIC SERVICES
Mitchell Park Phase I -Design Phase
A Preconstruction
Mitchell Park Phase II -Construction Phase
A Turner Staff Services
Al *Turner Staff Services after July 1, 2012
A2 *A portion of Turner's Staff Services for June 2012
B *Testing and Special Inspections
B1 'Testing and Special Inspections after May1,
2012
C Electronic Documents & Photo Recording
D Extended Construction Duration
Mitchell Park Phase III -Post-Construction Phase
A3 Turner Staff Services
TOTAL MITCHELL PARK BASIC SERVICES
Main Librarv Phase I
$ 404,545
$ 107,292
$1,835,000
$1,530,000
$ 190,721
$ 445,000
$ 375,000
$ 135,000
$ 115,000
$ 45,000
$4,788,013
(Design Phase for Main Library & Concept Design Phase for Temporary Main
Library)
'Date references are included for ease of reference related to the Reservation of Rights and Set Aside provisions of
this Amendment only, and for no other purpose. However, nothing in this Amendment will permit Turner to
retroactively bill City for any work performed prior to May 1, 2012.
6
7
A.l
A.2
EXHIBIT "C" (page 3 of 5)
COMPENSATION
Turner Staff Services -Temporary Library for Main
Turner Staff Services -Permanent Main Library
$ 15,000
$ 90,500
TOTAL MAIN LIBRARY BASIC SERVICES (Design Phase Only) $ 105,500
ALLOWANCE FOR REIMBURSABLE EXPENSES
DT Library (not to exceed)
DESCRIPTION: NOT TO EXCEED AMOUNT
MP Library (not to exceed)
Main Library
TOTAL ALLOWANCE FOR REIMBURSABLES
TOTAL BASIC SERVICES (including Allowance for ReimbursabLes)
ADDITIONAL SERVICES:
ALLOWANCE FOR ADDITIONAL SERVICES -Not to Exceed
DT Library
MPLCC
Main Library
TOTAL ALLOWANCE FOR ADDITIONAL SERVICES
TOTAL NOT TO EXCEED COMPENSATION
REIMBURSABLE EXPENSES
$ 5,000
$ 11,295
$ 2,000
$ 18,295
$5,306,353
$ 42,632
$ 476,026
$ 10,750
$ 529,408
$5.835.761
The administrative, overhead, secretarial time or secretarial overtime, word processing,
photocopying, in-house printing, insurance and other ordinary business expenses are included
within the scope of payment for services and are not reimbursable expenses.
ADDITIONAL SERVICES
The CONSULTANT shall provide additional services only by advanced, written authorization
------c-:-:·O-=l1~l fhe-CITY. The CO SUCTA1"lT artrfe--rry"s pToje ~11'ra:nager's request, slraU sllbml a
detailed written proposal including a description of the scope of services, schedule, level of
effort, and CONSULTANT's proposed maximum compensation, including reimbursable
expense, for such services based on the rates set fmih in Exhibit C-l . The additional services
scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the
CITY's project manager and CONSULTANT prior to commencement of the services. Payment
for additional services is subject to all requirements and restrictions in this Agreement.
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EXHIBIT "C" (page 4 of 5)
COMPENSATION
RESERVATION OF RIGHTS
Any "not to exceed" sums in whatever amounts actually paid to Consultant or paid to any set-
aside account under this Amendment No.4 to the Contract or paid to City-designated personnel
pursuant to Section 2 of this Amendment No.4 are specifically made without prejUdice to the
City's right to claim that no such sums are payable hereunder by reason ofthe previously
executed Contract, including any amendments thereto, and without prejudice to Consultant's
right to claim that all such sums payable to Consultant under this under Amendment No.4 to the
Contract are valid, payable obligations by the City and that such additional sums are owed to
Consultant. Nothing in this Amendment prevents Consultant from making any claim for
compensation for out-of-scope/extra services for which it believes it is entitled.
Any payment made by City to Consultant or City-designated personnel under this Contract
Amendment No.4, either directly or to any set-aside account shall not affect in any way City's
ability to assert it is not required to make such payment under the Contract or any amendment
thereto.
SET-ASIDE SUMS
_Upon the timely, proper and documented invoicing by Consultant, and instead of making
payments on such invoicing directly to Consultant, CITY will deposit the following amounts into
a "set-aside" account with the City (the "Set-Aside Account") as follows:
1) $340,000 of the amount listed for Contract Exhibit C, Basic Services Mitchell Park
Phase II -Construction Phase, Line Al Turner Staff Services provided on and after July 1, 2012
("First Set-Aside Amount");
2) $510,000 of the amount listed for Contract Exhibit C, Basic Services Mitchell Park
Phase II -Construction Phase, Line Al Turner Staff Services incurred and invoiced following the
First Set-Aside Amount and following City's payment of$680,000 to Consultant for Mitchell
Park Phase II -Construction Phase, Turner Staff Services ("Second Set-Aside Amount");
3) $102,016 of the amount listed for Contract Exhibit C, Basic Services Mitchell Park
Phase II -Construction Phase, Line C, designated for Electronic Documents and Photo
Recording ("Third Set-Aside Amount"); and
4) Contract Exhibit C, Basic Services Mitchell Park Phase III -Post-Construction Phase,
bne-A-3-E$45;000) Turner-8taff-Serviees-("F0urth--Set-Asiee Ameunt").
The First Set-Aside Amount, Second Set-Aside Amount, Third Set-Aside Amount and Fourth
Set-Aside Amount (collectively the "Set-Aside Sum") will be held by the City in the Set-Aside
Account until such time as the City and Consultant
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EXHIBIT "C" (page 5 of 5)
COMPENSATION
agree to release them or a ruling has been made as to the disposition of the Set-Aside Amount in
a binding dispute resolution proceeding between the parties. This Amendment shall be
considered joint set-aside account instructions and the signatures of both parties or a ruling in a
binding dispute resolution procedure will be required to release the funds from the Set-Aside
Account. The City shall, within three (3) business days of each deposit, provide Consultant with
written notice confirming the deposit of any and all funds into the Set-Aside Account described
herein. The parties agree to promptly execute and provide all documents reasonably requested
and required by the City in order to administer (e.g., open, deposit funds, release funds and
close) the Set-Aside Amount described herein.
Notwithstanding the foregoing, if the CITY and CONSULTANT have been unable to agree in
writing to the release ofthe Set-Aside Amount and/or entitlement to the funds paid by CITY to
TURNER subject to the Reservation of Rights as noted above, then within ninety (90) days after
the CITY's final resolution (e.g., the dates of any ofthe following: settlement agreement;
judgment following trial; or judgment following an award in binding arbitration) of any and all
claims by or against Contractor, the CITY AND CONSULTANT shall submit the dispute
surrounding the Set-Aside Amount and/or all Reservation of Rights funds noted above to final
and binding arbitration to be conducted by a single arbitrator from Judicial Arbitration and
Mediation Services ("JAMS") of San Jose, California, or any successor entity. The arbitrator
shall be jointly selected by the CITY AND CONSULTANT or, if they are unable to agree within
fourteen (14) days ofthe first written proposal of an arbitrator, appointed in accordance with the
then-current JAMS arbitrator appointment process and subject to all JAMS procedural and
discovery rules then in effect.
This provision shall not be construed as an agreement to submit any other claims or actions
either party has or may have against one another to JAMS arbitration and such other claims or
actions shall be governed by the terms set forth in the Contract.
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CITY OF PALO ALTO CONTRACT NO.: C10131631
EXHIBIT "C-l"
POSITION
Project Executive
Project Manager
Project Engineer/Cost Engineer
MEP Engineer
Scheduler
Estimator
Administrative
Accounting
POSITION
Project Executive
Project Manager
Project Engineer/Cost Engineer
MEP Engineer
Scheduler
Estimator
Ad min istrative
Accounting
POSITION
Project Executive
Project Manager
Project Engineer/Cost Engineer
MEP Engineer
Scheduler
Estimator
Administrative
Accounting
HOURLY RATE SCHEDULE
Revised 29 October, 2012
Attached to Amendment 4
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HOURLY RATES
2009 2010
$232 $239
$164 $169
$105 $108
$155 $159
$126 $130
$168 $173
$ 63 $ 65
$101 $104
2011
$246
$174
$111
$164
$134
$178
$ 66
$107
2013
2012
$253
$180
$115
$169
$138
$183 (Corrected Rate)
$ 68
$110
$261 (New Rate)
$185 (New Rate)
$118 (New Rate)
$174 (New Rate)
$142 (New Rate)
$188 (New Rate)
$ 70 (New Rate)
$113 (New Rate)
EXHIBIT "E"
TOLLING AGREEMENT
This Tolling Agreement (the "Tolling Agreement") is entered into effective October 30,
2012 (the "Effective Date") by and between the City of Palo Alto, a California chartered
municipal corporation ("CITY"), TURNER CONSTRUCTION COMPANY, a New York
corporation ("TURNER") (hereinafter collectively referred to as "the Parties").
NOW THEREFORE, in consideration of the premises, the mutual covenants herein
contained, and other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, the Parties agree as follows:
1. The Parties agree to toll all statutes of limitations and contractual time bars with respect to
the Parties' rights, if any, arising out of and/or relating to that certain written Contract No.
CI0131631 between City and Turner (together with all amendments and exhibits, the
"Contract"), the design and development, bidding and construction of the Mitchell Park
Library/Community Center (the "Project"), and/or any pre-construction, construction
management or closeout/warranty services provided by Turner to City for the Project, which
tolling shall be from the Effective Date of this Tolling Agreement to its expiration or
termination.
2. Except as to the effect of the statutes of limitations provisions as stated in Paragraph 1 above,
the Parties agree that upon expiration or termination of this Tolling Agreement, each party
will have the same procedural rights, duties, positions and defenses as they had before this
Tolling Agreement was signed.
3. The Parties agree that this Tolling Agreement shall be in effect until such time as all legal
claims by Flintco, Inc. relating to the construction of the Project are resolved through a
settlement or through trial or binding arbitration, or this Tolling Agreement is terminated
under the terms of Paragraph 13 hereof, and shall expire at that time unless renewed or
extended by a writing signed by the Parties.
4. The Parties agree that this Tolling Agreement does not apply to claims, if any, which were
barred by limitations as of the Effective Date. Further, this agreement shall not operate to
waive, limit, modify or otherwise affect any claims or defenses, or any rights and obligations
that any of the Parties may possess against any other Party, except for the tolling effect
agreed to herein.
5. The Parties agree this Tolling Agreement shall not be offered in evidence as an admission of
liability, nor shall it be used in any way, including in discovery, as evidence thereof.
6. The Parties agree that this document constitutes the entire agreement of the parties regarding
the su ~jec . rna er ereof, -llia Thre are no unwrinen teilTIS an con ltlOns an lallnlS Ir an
integrated document which can be modified only in writing signed by all the Parties.
7. The Parties warrant that each of them have been advised by legal counsel of its own choice
as to the terms and conditions of this Tolling Agreement and the legal significance thereof.
8. By signing below, the Parties each acknowledge that they have read this Tolling Agreement
and are fully aware of its contents.
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9. Notwithstanding anything to the contrary in this Tolling Agreement, nothing in this Tolling
Agreement shall prevent City from tendering (a "Tender") any claims it receives from
Flintco, Inc. to Turner under the indemnity provisions of the Contract; however,
notwithstanding any other provision herein, the acceptance or rejection by Turner of such
Tender shall constitute and effect a termination of this Tolling Agreement effective upon
sixty (60) days after receipt of such acceptance or rej ection.
10. This Tolling Agreement shall be binding and enforceable against the Parties hereto and any
assigns or successors-in-interest. The Parties declare and represent that no promise,
inducement or agreement not herein expressed has been made to any of their representatives,
and this Tolling Agreement contains the entire agreement between the Parties. The terms of
this Tolling Agreement are contractual in nature and not mere recitals. The signatories below
warrant that they have appropriate authority to execute this Tolling Agreement and
understand and acknowledge that all adverse parties are relying on this warranty of authority.
11. This Tolling Agreement may be executed in one or more original or facsimile counterparts,
each of which shall be deemed an original, but also which together will constitute one and
the same instrument. Copies of signatures hereon shall be treated the same as originals.
12. From and after substantial completion of the Project, this Tolling Agreement may be
terminated at any time by any Party hereto upon thirty (30) days' written notice to the other
Party, which notice shall be effective upon date of receipt after mailing by first-class certified
mail or first-class registered mail, postage pre-paid, by UPS or Federal Express Overnight
delivery, at the addresses as listed in Paragraph 14. Any such notices sent via U.S. mail shall
be deemed received three (3) days after sending; sent via overnight mail shall be deemed
received the day after sending; sent via e-mail or facsimile shall be deemed sent the same day
as sending provided that a copy of such notice also is sent via U.S. Mail.
13. Notices under this Tolling Agreement shall be given as follows:
To City:
City Attorney
Attn: Cara Silver
250 Hamilton Avenue
Palo Alto, CA 94301
To Turner:
TURNER CONSTRUCTION COMPANY
Attn: Kevin Antonelli and Tom Tripp
60 Seuhh Mafket Sl.reet,Su·ite-l1·00
San Jose, CA 95113
And copy to
Hopkins & Carley
Attn: Jay M. Ross, Esg.
70 South First Street
San Jose, CA 95113
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15. Each person executing this Tolling Agreement represents-that he or she is fully aut1lOrized to
execute and deliver this Tolling Agreement on behalf of snch person or entity.
[REMAINDER INTENTIONALLY BLA K -SIGNATURE PAGE FOL OWS]
•
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IN WITNESS WHEREOF the Pruties have executed this Tolling Agreement effective as
of the Effective Date.
CITY OF PALO ALTO
By: ____________ _
Name: ------------
Title: ___________ _
TURNER CONSTRUCTION COMPANY
BY:I~TU44
NameiYafrDI. An~\k )
TitJe VP ~,E\~\ ~Y-
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