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HomeMy WebLinkAboutMemorandum of Understanding with TMC Inc. for Masonry Work New City HallMEMORANDUM 4F UNDERSTANDING BETWEEN TMC, INC. AND THE CITY OF MERiD1AN TH1S MEMORANDUM OP UNDERSTANDING is made a d en red in o this ~g n to t day of October, 2Q11, by and between TMC, Inc, TMC} and The City of Meridian, Idaho City}, to establish a mutual understanding regarding certain incomplete work involving the building paper wrap into the window jambs afi the New Meridian City Hall. WHEREAS, On May 8, 2001, City and TMC entered into a contract under which TMC was hired to perform masonry work on the New Meridian City Hall Project the "Project"}; and, WHEREAS, The specifications for the Project called for, among other things, the coursing, placing, and banding of masonry to the exterior of the new building and installation of building paper on the exteriorwalls; and, WHEREAS, City took occupancy of the building an October of 2008; and, WHEREAS, On October 13, 2000, City sent a letter notifying TMC of significant issues involving apparent areas of deficiency of the work performed and installed on the Project; and, WHEREAS, City and TMC have engaged innumerous discussions regarding the alleged deficiencies and potential remedies; and, WHEREAS, City and TMC have agreed on a scope of work to be performed by TMC in exchange for a release and waiver of claims from City (the "Release Agreement"}; and, WHEREAS, certain work deficiencies involving incomplete building paper wrap into the window jambs thereinafter "Building Wrap Remediation"} were excluded from the Release Agreement because City and TMC have agreed that said the Building Ullrap Remediation is not capable of being performed on a specific timeline; and, WHEREAS, City and TMC have agreed to a plan to address the Building Uvrap Remediation which is the subject of this Memorandum of Understanding, MEMQRANDUM OF UND~RSTANDINC-1 of 3 r~ N~1111, THERE~~RE, the parties hereby agree as follows: ~ ~ In recognition of the incomplete condition of the building window wrap, TMC has agreed to par#icipate in any future repairs of the building wrap at the windows and will correct the incomplete condition at no charge if City removes and replaces the windows to expose the condition. 2, TMC's Building vvrap Remediation shall be performed to the standard specified in the Project records as detail C6~A3,2 Condoc 0~140.K (Return ~ jamb} and othersimilarjamb, head, and sill details of window details. 3. City intends to remove certain windows on the upperfloors as part ofa reMroofing project scheduled for the Spring of 2g12, and TMC has agreed to erform p Building Wrap Remediation on those windows at thatt~me. ~. The remainder of the windows on the Project are not leaking at this time, but in the event of future leakage around particular windows, or in the event that City chooses to remove and remove and replace all of the windows on the Project at any time, TMC agrees to perform Building Wrap Remediation at the time that City chooses to perform the removal and replacement of the windows, TMC's agreement to perform the Building Wrap Remediation an these terms shall be a promise and covenant that shall exist forthe life of the building until such time as ~ City or its agent has verified that all windows on the project have received building vvrap Remediation. 5. In the event that TMC fails to fulfill its obligations under this agreement, Cify reserves the right to utilize any available legal remedy, including actions for damages or specific performance. fi~ If a suit, action, or other proceeding arising out of or related to this MOU is instituted by any party, the prevailing party shall be entitled to recover its reasonable attorney fees, expert witness fees, and costs {i}incurred in any settlement negotiations, (ii} incurred in preparing for, prosecuting or defending any suit, action; or other proceeding, and viii}incurred in preparing for, prosecuting ar defending any appeal of any suit, action, or other proceeding. For the purpose of this section, "attorney fees" shall mean and include {i} attorney fees and {ii} paralegal. fees, This section shall survive and remain enforceable notwithstanding any rescission of this MOIJ or a determination by a court of competent jurisdiction that all or any portion of the remainder of this M~U is void, illegal, yr against public policy, 7, This MCU shall be construed and interpreted in accordance with the laws of the State of Idaho, The parties agree that the courts of Idaho shall have exclusive jurisdiction and agree thatAda County is the propervenue. 8. Time is of the essence with respect to the obligations to be performed under this MEMORANDUM OF UNDERSTANDING- 2 of 3 ~1 9, Except as expressly provided in this MOU, and to the extent permitted by law, any remedies described in this MOU are cumulative and nat alternative to any other remedies available at law or in equity. 10, The failure or neglect of a party to enforce any remedy available by reason of the failure ofthe other party to observe ar perform a term orconditivn setforth in this MOU shall not constitute a waiver of such term or condition, A waiver by a party ~i~ shall not affect any term or condition other than the one specified in such waiver, and (ii7 shall waive a specified term or condition only forthe time and in a manner specifically stated in the waiver, 11,This MOU shall be binding upon and inure to the benefit of the parties and their respective successors, assigns, heirs, personal representatives, purchasers, or transferees of any kind, IN vvITNESS WHEREOF, the parties do execute this Memorandum of Understanding the day and year first above written. TMC, Ir~c, ~y , Tim McGourty, Presid nt CITY aF ~~ , ., e eerd, Mayor Attest: o~z~uau~~~ o~ j,, ~~~ J ce 1m i ~~ IDIAN ~ IDAHO ~~ ~ ~~, ~ ~r~ <<6e 5~4~-~°~ MEMORANDUM OF UNQERSTANDING- 3 of 3