Minute Book 84
MINUTES OF THE SPECIAL MEETING OF THE
CITY COUNCIL OF THE CITY OF MOUNTAIN BROOK, ALABAMA
JULY 13,2012
The City Council of the City of Mountain Brook met in a special public session in the temporary City
Hall at 5:00 p.m. on Friday, the 13th day of July, 2012. The President of the City Council called the meeting
to order and the roll was called with the following results:
Present:
Virginia C. Smith, Council President
Jack D. Carl
Amy G . Carter
William S. Pritchard, I11
Lawrence T. Oden, Mayor
Absent:
Jesse S. Vogtle, Jr., Council President Pro Tempore
Also present were City Attorneys Whit Colvin, Tony Davis, and Scott Dickens, and City Clerk Steven
Boone.
The City Council President stated that a quorum was present and that the meeting was open for the
transaction of business.
1.
EXECUTIVE SESSION
It was moved by Council member Pritchard that the City Council convene in executive session to
discuss a matter involving pending litigation. The motion was seconded by Council member Carter. The City
Attorney certified that the subject of said executive session was allowed pursuant to the Open Meetings Act.
Then, upon the question being put and the roll called, the vote was recorded as follows:
Ayes:
Virginia C. Smith, Council President
Jack D. Carl
Amy G. Carter
William S. Pritchard, I11
Nays:
None
Council President Smith thereupon declared that said motion passed by a vote of 4 - 4 and then asked
that the members of the audience be excused. The president also announced that the City Council will
reconvene in public upon conclusion of the executive session to consider a change order request related to the
municipal complex construction project.
2.
CONSIDERATION OF A RESOLUTION AUTHORIZING THE EXECUTION OF A
SETTLEMENT AGREEMENT AND RELEASE RELATED TO THE CONSTRUCTION
CONTRACT BETWEEN THE CITY OF MOUNTAIN BROOK AND TAYLOR-MIREE
CONSTRUCTION, INC. (APPENDIX 1)
The Mayor and City Council reconvened the meeting in public at approximately 5:20 p.m. President
Smith then introduced the [Taylor-Miree Construction, Inc.] release, settlement agreement, and consent to
assignment in writing and invited questions or comments. There being none, Council member Pritchard
entered a motion that the City Council authorize the execution of the release, settlement agreement, and
consent to assignment between the City, Taylor-Miree Construction, Inc. and Brasfield & Gorrie, LLC. The
motion was seconded by Council member Carter. Then, upon the question being put and the roll called, the
vote was recorded as follows:
July 13,2012
Minute Book 84
Ayes:
Virginia C. Smith, Council President
Jack D. Carl
Amy G . Carter
William S. Pritchard, I11
Nays:
None
Council President Smith thereupon declared that said motion passed by a vote of 4 - 4 and as evidence
thereof, called upon the Mayor to execute said document.
ANNOUNCEMENT
Council President Smith announced that the next meeting of the Mountain Brook City Council will be
held on Monday, July 23,2012 at 7 p.m. at the temporary City Hall located at 3928 Montclair Road, Suite 230,
Mountain Brook, Alabama 35213. Please visit the City's web site (www.mtnbrook.org) for more information.
ADJOURNMENT
There being no further business to come before the Council, it was moved and seconded that the
meeting be adjourned. Motion carried.
Steven Boone, City Clerk
July 13,2012
Minute Book 84
Staff Support, Sanitruy Sewer, Labor O v e ~ h (on Self-Performed Contract Work. and
RELEASE. SETTLEMENT AGREEMENT
AND CONSENT TO ASSIGNMENT
Mucellanwus) found in the "Taylor-Mire Ropored Breakdown of Additional Carts"
The parties to lhiu agreement made this & day of July, 2012, are The City of
Mountain Brook, Alabama ("the City"), Taylor & Miree Construction, Inc. ("Taylor &
section contained in the Sdement Breakdown Analysis mated by B&G and dated June
27,2012.
5.
Miree"), and Brasfield & Go&, LLC CBBG").
WHEREAS, the City of Mountain Brook, as owner, and Taylor & M k , as
Taylor & Miree verifies it has not received any written claim, any notice of
claim, or any demand for payment above the subcontract pice or purchase ordu
general contractor, entend into a contract datcd September 28.201 0 (hereafter refand to
agrament from my subcontractor or vendor, including any claim for delays or extra
as "the Contract") for the construction of a project known as the City of Mountain Brook
work, that is not the subject of a change order request that Taylor & Miree has submitted
to the City. Taylor & Miree hvther vuifiu that all subcontractors and vendors have been
Municipal Complex ("'the Project"); and
WHEREAS, the City contracted with B&G to provide construction management
or will be paid in full from those payments received by Taylor & Mirce from thc City.
including amounts to be paid under this Agreement for the work of the respective
services; and
WHEREAS, the Project had an original completion date of February 10,2012; and
subcontractorsand vendors. Taylor & Miree shall provide reasonable cooperation and
WHEREAS, numerous delays have occumd on the Project; and
assislance to B&G with the assessment of the status of all subcontracts, purchase orders.
WHEREAS, the pMies to this Agreement mutually desire for Taylor & Minx to
assign its Contract and all remaining WoR, as defined in the Contract, to B&O; and
WHEREAS, the City and Taylor & Mine consent to an assignment of the
Contract - including all remaining work undu the Conaaft
- from Taylor & M
i to
WHEREAS, the City and Taylor & M i e desire to mutually resolve all claims.
potential claims, and liability to the other as set forth herein.
NOW, THEREFORE, the pMies agree to the following:
Taylor & Mine shall assign the Contract and all rights, liabilities, and
obligations undu the Contract to B&G.
2.
enable B&G to verify materials that have been purchased, ordered, or stored. Subject to
the naronable cooperation of Taylor & Miree, B&G will use its b u t efforts to complete
its arwsment by July 27, 2012, and any amounts identified ar unpaid or owing to
B&G, and
I.
and stored materials so that BBG can verify amounts that Taylor & Miree has paid and
amounts subcontractorsmay be owed. Taylor & Miree will also provide documents to
City has funded Application for Payment No. 11 in the amount of
$527,001.26, which includes woR paformed Uuough April 30.2012.
subcontractors or vendon. for which a request for payment has bcen made and Taylor &
M i r e q u e s t s payment from the City, will be withheld t o m the final application for
payment as s n forth in Paragraph 6 below.
6.
Upon approval of the final application for payment by B&G with the input
of Chip Grizzle or Jeff Stone, the City will pay Taylor & Miree for the approved amounts
of those items listed in subparagraphs 4(a) through 4(d) above; except however, the City
may withhold payment of any amounts that B&G reasonably determines may be due and
Taylor &Mires shall stop performing work on the project on July 13,2012
owing to any of Taylor & Miree's subcontractors or suppliers for costs that B&O is
at the close of business, and will be provided a reasonable timetrame to demobilize in
required to pay under the subcontract or as a result of Taylor & Miree not paying the
coordination with 880.
subcontractor or supplier after having received payment fmm the City for such
3.
4.
Taylor & Miree shall, by July 20, 2012. submit a final application for
paymed which will include only the following:
(a)
Work m p l e t e d and materials stored as of May 31,2012, which Taylor &
M i previously submitted and estimated atSS10,167 as ofMay 31,2012;
subcontract wok or material. If Taylor & M i m disagrcu with the withholding of
payment from the final pay application, Taylor & Mira retains all of its rights and
remedies availableto it under the Coneact for said disputed amount withheld.
7.
The City shall pay Taylor & Miree contrsct retainage for all work that
Taylor & Miree self-performed as of July 13,2012, which shall be paid at the samc time
(b)
Retainage on self-performed work, which Taylor & Mirce previously
submitted and estimated to be $79,846 as of May 31,2012;
u the Senlement Amount. The City will not pay Taylor & Mire for subcontrmor
(c)
Work that Taylor & Miree self-paformed and stored materials that have
relainage, which shall become the obligation and responsibility of B&G.
k e n paid for by the Owner under the Agency Agreement from June 1.
(d)
8.
In addition to the final application for payment and self-performed
2012, to July 13,2012;
retainage, the City shall, after the Contract bar been assigned as set forth in Paragraph 9
Subcontract work to the extent Taylor & M i r e has. as of June 30. 2012.
below, pay Taylor B Mime Nine Hundred Thousand Dollan ($900.000.00) (the
rseived invoices, which adhere to the subcontract trims for payment, from
"Settlement Amount") fo smle all claims or potential claims of Taylor & M i which
its subcontraaor(s).
relate in any way to the Contract or Projeu, including but not limited to any claim for
In this final application for payment Taylor & Miree shall not seek payment for
delay, extended overhead, extended job costs, or any unrcimbursed costs associated with
any other cost$ or items of work including, but not limited to, those costs and itmu of
Taylor & Miree's performance of work on the Pmject. The Settlement Amount and
I through 5 (BBRL & C o m l m t s , Job Overhead & Office
amounts due from the fdapplication for payment including self-performed rchbmge,
work listed in Line 1-s
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10B. Upon the effective mutual releases by the parties m set follh above, The
shall be plid by the City to Taylor & Mi= no later than seven (7) days after BBG
Taylor B Miree's
completes its assessment of the stntw of dl subcontracts. purchase orders, and stored
Tnvelcn Casualty and Surety Company of America ('Travelers"),
material as described above.
surety, shall be released along with the Payment and Performance Bonds issued for the
Taylor B Mircc shall assign to BBG all remaining rights, liabilities, and
Project on September 28, 2010 with penal sums of $12,175,000 (Bond Numba
obligations of Taylor & Mira under the Contract. The assignment between Taylor B
105473524). The City shall rehun the original Payment and Performance Bonds to
Miree and BBG shall include the following terms:
Taylor B Mine within seven days after the mutual releases become effective.
9.
(3
Subject to the t e r n of the Change Order referenced in Paragraph 13, BBG
shall assume all obligations of Taylor & Mirce under the Contract
work under the Contract. In addition, and except ar othawise provided herein. BBG will
claim and potential claims by subcontrMton and supplien, and all
hold harmless and indemnify (including anorneys' fees and costs) Taylor B Miree for
M
huther obligations whatsoever to the City under the Contrad, including but
not limited to guaranlcw and warranty wok,
(c)
(d)
(e)
Upon execution of the Change Order referenced in Paragraph 13, BBG
including. but not limited to, the completion of all work under the Contract,
warranty andlor guarantee obligations. Taylor B Miree shall have
(b)
11.
shall provide payment and pcrfonnmcc bonds to c w n the completion of all remaining
any claims arising out of or related to the Contract or Project, including any claims made
by subcontractorsor suppliers.
12.
Taylor B Miee shall cooperate with BBG and the City to accomplish the
Taylor & M i e shall assign to BBG all subcontracts and purchase order
arsignment of subcontractsand the transition of the work to BBG. Taylor & Mircc shall
agreements related to the Project;
make reasonably available to BBG all non-privileged and non-confidential documents,
Subject to the terms of the Change Order referenced in Paragraph 13. BBG
files, records, and other materialc related to the Project that BBG requests. Taylor B
shall assume all of Taylor B Mirre's rights, liabilities, and obligations
Miree shall not undcruke any action that is reaumably calculated to delay or disrupt
under the Contract;
BkG's prosecution of remaining work under the contract or to prevent BBG fmm
Taylor & Miree shall indemnify BBG and the City for any pmonal injury
completing the work pursuant to the assignment of the Contract fmm Taylor & M k to
or property damage claims that arose or accmed prior to the assignment;
BBG. BBG shall be responsible for the costs of copying Taylor B M k ' s documents,
however, Taylor B M i m is not aware of any such claims;
files, records, and other materials.
13.
BBG will subcontract with Taylor & M i r e for Taylor B Miree to provide
immediately after Taylor & Mirce assigns its Contract to B M , Bffi will
to BBG the s m i w of the following Taylor & Miree employees for a
develop and present to the City for the City's consideration a plan to accelerate the
minimum time period of ninety (90) days: Ron Hill, Trey M d l l . and
completion of all work under the Contract. The City and BBG will incorporate the
Robbie Tucker. To the extent BBG utilizes the services of those Taylor &
agreed-upon plan into the remaining Contract by change order. The City and BBG
Mirce employcw. thme employew' time shall be reimbursed to Taylor &
acknowledge that time is of the essmce in the completion of the Project. The City and
Mirce by BBG through a mutually agreed upon s u h n t m c t agreement
BBG each agree to negotiate in good faith, with rmonable prompmess, to fmalk the
between BBG and Taylor & Mi=.
terms of the Change Order to expedite completion of the work, it being acknowledged by
10A. Exccpt as specifically provided in Paragraph 9(d) above, the City, BBG.
the City that BBG will be reimbursed its cost incuned on the project during the time
and Taylor & Mircc hereby ~ e l e a acquit,
s~
and forever discharge each other and the
withii whieh the terms of the Change Order are being developed and f i a l i . The City
others' agents, architects, consuuction managers, employees, insurm, suretia.
acknowledges that the process required by this Paragraph 13, whereby BBG will evaluate
representatives, council mcmbm, and attorneys h m and against all claims including,
the Status of the project, develop a plan for expedited completion of the project and
but not limited to, demands,
receive a Change Order to the Contract to implement the plan, is a material inducement
cause^
of action. suits, liabilities, overhead, interat, idle
equipment and delay damages, retainage due, negligence claims, breach of antract
claims, change order claims, extra work claims, debts, lost profits, costs, damages (both
of BBG's agreement to accept assignmentof the C o n m .
14.
The Parties, along with their respective employas and agents, agree that
compensatory and punitive) and expenses (including any claims for attorneys' f a s or
the terms of this Agreement shall not be dilosed except as required to comply with any
consultants' fees) paahiing or relating in any manner whatsoever, whether known or
law or as may be necessary to comply with any legal. awunting, or audit requirements.
u h o w n , that either the City, BBG, or Taylor B Miree now has, or ever had arising out
However, the parties rccognizc that they may be asked about the status of the contract
of, resulting Gom, or relating in any way to the Project or Contract. Notwithstanding rhc
and whether Taylor B M i e is actively involved with the project. The parties m y
foregoing, the parties' mutual releases are only effective upon receipt of the Settlement
respond to any such inquiry by mponding that Taylor & Miree has agreed with the City
Amount by Taylor B Miree and those amounts recommended by BBG to be paid
and BBG that BBG will assume a greater responsibility as general contractor and will,
according to the process of Paragraphs 5 and 6.
through BBG's resources. sak to expedite the progress of the job. Also, thar ccrtain of
Taylor B Mim's employees will continue to work on the pjcct, and Taylor &Mi= is
(81411101)
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July 13,2012
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giving its full cooperation and support with regard to finishing the project in the most
expeditious manner.
IS.
This Agreement may not be amended or changed except by a written
document that is signed by all Partiu.
[SIGNATUREPAGES TO FOLLOW]
SWORN TO AND SUBSCRIBED
before me this 1% day of
+FX'
SWORN TO AND
befin me this &y
BSCIUBED
of
Tide:
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0 b
id^:
Date:
d%$
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I
.
BRASFIELD& GORRIE, LLC
By:
Title:
Date:
SWORN TO AND SUBSCIUBED
before me this d a y of
,2012.
My commission
expiru:
July 13,2012
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July 13,2012