CITY COUNCIL AGENDA ITEM
Memo Date: February 27, 2024
Agenda Date: March 26, 2024
Prepared By: Kimberley Ross, Administrative Coordinator
Through: John A. Walsh, P.E., Utilities Director
Requested Action:
title
To Approve Change Order #5 to Purchase Order 77494 with Kirwin Norris, PA, for trial preparation litigation activities, including engineering expert services, regarding the pending lawsuit against Brandes Design-Build for Issues with the Jerry Sellers Tank Coating Failure/Repairs.
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BACKGROUND:
On February 26, 2020, the City Manager signed a retainer agreement with Douglas W. Ackerman, from the legal firm Kirwin Norris, P.A., in anticipation of having to file a potential lawsuit against Brandes Design-Build. The City Council later authorized filing two lawsuits against Brandes Design Build and their sureties related to both the Jerry Sellers and Industrial Park projects.
On February 26, 2020, an original estimated budget of $50,000 was established for legal services inclusive of engineering expert fees under P.O. 77494. On May 25, 2021, Change Order #1, in the amount of $100,000, was issued. On April 12, 2022, Change Order #2, in the amount of $50,000, was issued. On March 14, 2023, Change Order #3, in the amount of $50,000, was issued. On October 10, 2023, Change Order #4, in the amount of $100,000, was issued for a total approved purchase order of $350,000.
Because of the highly technical nature of these two pending construction cases, the purchase orders issued for Kirwin Norris, P.A. include not only legal fees, but fees incurred for the City’s engineering expert assisting the City in these cases. To-date, a substantial portion of the money drawn from the Kirwin Norris purchase orders have been to pay invoices related to the City’s engineering expert.
Staff anticipates additional legal support services and engineering expert services related to the necessary litigation activities to prepare the Jerry Sellers case for trial in June, and the current remaining balance is insufficient. Legal expenses were anticipated to continue in FY2024 and the expense is budgeted. The anticipated costs associated with these preparatory support services are $158,920.
Staff is recommending approval for Change Order #5 in the amount of $158,920 be added to the original P.O. for a total approved purchase order of $508,920.
STRATEGIC PLAN CONNECTION:
N/A
BUDGETARY IMPACT:
Budgeted Yes
If not budgeted, is amendment/transfer attached? N/A
Amount Requested: $158,920.00
Account Number 421-4010-536.31-01
Account Name Legal Expenses
Change Order #5 Amount: $158,920.00
Original Purchase Order No.: 77494
Original Purchase Order Amount: $50,000.00
Total Number of Change Orders: 5
Total Amount in Change Orders to Date: $350,000.00
PREVIOUS ACTION:
On February 26, 2020, the City Manager approved a retainer agreement with Special Counsel Douglas Ackerman. The City Council previously authorized filing suit against Brandes Design Build and their sureties to recover costs and fees related to completing these projects.
On May 25, 2021, City Council Approved Change Order #1 to P.O. 77494 with Kirwin Norris, PA, for on-going legal and related expert services regarding two pending lawsuits against Brandes Design-Build for Issues with the Jerry Sellers Tank Coating Failure/Repairs and Industrial Park Interior Coating Failure/Repairs.
On April 12, 2022, City Council Approved Change Order #2 to P.O. 77494 with Kirwin Norris, PA, for on-going legal and related expert services regarding two pending lawsuits against Brandes Design-Build for Issues with the Jerry Sellers Tank Coating Failure/Repairs and Industrial Park Interior Coating Failure/Repairs.
On March 14, 2023, City Council Approved Change Order #3 to P.O. 77494 with Kirwin Norris, PA, for on-going legal and related expert services regarding two pending lawsuits against Brandes Design-Build for Issues with the Jerry Sellers Tank Coating Failure/Repairs and Industrial Park Interior Coating Failure/Repairs.
On October 10, 2023, City Council Approved Change Order #4 to P.O. 77494 with Kirwin Norris, PA for on-going legal and related expert services regarding two pending lawsuits against Brandes Design-Build for Issues with Jerry Sellers Tank Coating Failure/Repairs and Industrial Park Interior Coating Failure/Repairs.
RECOMMENDED MOTION:
Recommendation
To Approve Change Order #5 to Purchase Order 77494 with Kirwin Norris, PA, for trial preparation litigation activities, including engineering expert services, regarding the pending lawsuit against Brandes Design-Build for Issues with the Jerry Sellers Tank Coating Failure/Repairs.