Loading...
HomeMy WebLinkAboutAgenda - 09-19-2007-6b2APPENDIX A TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES DISPUTE RESOLUTION PROCEEDURES FOR ORANGE COUNTY Table of Rules Rule 1. Initiating Mediated Settlement Conferences A. Purpose of Mandatory Settlement Conferences B. Initiating the Dispute Resolution Process 2. Selection of Mediator A. Mediator Listing B. Selection of Mediator C. Disqualification of Mediator 3. The Mediated Settlement Conference A. Where Conference is to be Held B. When Conference is to be Held C. Request to Modify Deadline for Completion D. Recesses E. Project Delay 4. Duties of Parties and Other Participants in Formal Dispute Resolution Process A. Attendance B. Finalizing Agreement C. Payment of Mediation Fee D. Failure to Compensate Mediator 5. Authority and Duties of Mediators A. Authority of Mediator B. Duties of Mediator 6 Compensation of the Mediator 7. Rule Making 8. Definitions 9. Time.Limits Page 1 of 6 RULE 1. INITIATING MEDIATED SETTLEMENT CONFERENCES A. Purpose of Mandatory Settlement Conferences. Pursuant to G.S. §143-128(fl) and 143-135.26(11), these Rules are promulgated to implement a mediated settlement program designed to focus the parties' attention on settlement rather than on claim preparation and to provide an opportunity for orderly settlement negotiations to take place. Nothing herein is intended to limit or prevent the parties from engaging in settlement procedures voluntarily at any time prior to or during commencement of the dispute resolution process. B. Initiating the Dispute Resolution Process 1) Any party to a County public construction contract (referred to herein generally as the "Contract") governed by Article 8. Ch. 143 of the General Statutes and identified in G.S. § 143-128(fl) and who is a party to a dispute arising out of the Contract and the construction process in which the amount in controversy is at least $15,000 may submit a written request to the County for mediation of the dispute. 2) Prior to submission of a written request for mediation to the County, the parties should give notice of any and all claims in accordance with their respective contracts, obtain decisions on the claims as required or allowed by their respective contracts, and attempt to resolve the dispute according to the terms and conditions in their respective contracts. The Mediator may adjourn any mediated settlement conference if the Mediator believes, in his or her sole discretion, that the parties have not satisfied all of the terms and conditions of their respective contracts and that doing so will enhance the prospects for a negotiated settlement. C. Condition Precedent to Litigation. Before any party to a Contract may commence a civil action against the County seeking remedies for breach or non- performance of the Contract by the County, said party must first initiate the dispute resolution process under these rules and attend the mediated settlement conference. RULE 2. SELECTION OF MEDIATOR A. Mediator Listing. A list of Mediators acceptable to the County is attached to and incorporated by reference into these Rules. The party requesting mediation shall select a Mediator from the designated list. If the County fails to provide a list of acceptable mediators, the list of Mediators shall be deemed to be the list of mediators certified by the North Carolina Dispute Resolution Commission to conduct mediated settlement conferences in the North Carolina Superior Courts. B. Selection of a Mediator. The party requesting mediation shall select a Mediator from the County's list of Mediators and shall file, with the County, a Notice of Selection of Mediator within 21 days of the request for mediation. Such notice shall state the name, address, and phone number of the Mediator selected. If the Mediator selected is not available or declines to participate for any reason, the Page 2 of 6 requesting party shall select another person from the County's list of Mediators. If the party requesting mediation does not select and designate a mediator within 21 days of the request for mediation, the County shall have the right in its absolute discretion to appoint a mediator from its list of Mediators. C. Disqualification of Mediator. Any party may request replacement of the Mediator for good cause. Nothing in this provision shall preclude Mediators from disqualifying themselves. RULE 3. THE MEDIATED SETTLEMENT COT + + RENCE A. Where Conference is to be Held. Unless all parties and the Mediator otherwise agree, the mediated settlement conference.shall be held in Orange County. The Mediator shall be responsible for reserving a place, making arrangements for the conference, and giving timely notice of the time and location of the conference to all attorneys, unrepresented parties and other persons or entities required to attend. B. When Conference is to be Held. The mediation shall be completed within 90 days after selection of the Mediator. C. Request to Accelerate or Extend Deadline for Completion. Any party or the Mediator may request the County to accelerate or extend the deadline for completion of the conference. Such request shall state the reasons the extension is sought and shall be served by the moving party upon the other parties and the Mediator. Objections to the request must be promptly communicated to the County and to the Mediator. The County, with the concurrence of the designated Mediator, may grant the request by adjusting the time for completion of the conference. D. Recesses. The Mediator may recess the mediation conference at any time and may set times for reconvening. If the Mediator determines the time and place where the conference is to reconvene before the conference is recessed, no further notice is required to persons present at the conference. E. Project Delay. The mediated settlement conference that results from a construction contract dispute shall not be cause for the delay of the construction project. RULE 4. DUTIES OF PARTIES AND OTHER PARTICIPANTS IN FORMAL DISPUTE RESOLUTION PROCESS A. Attendance. 1. All parties to the dispute must designate an official representative to attend the mediation. 2. "Attendance" means physical attendance, not by telephone or other electronic Page 3 of 6 means. Any attendee representing a party must have authority from that party to bind it to any agreement reached as a result of the mediation. 3. Attorneys representing parties may attend the mediation, but are not required to do so. 4. Sureties and insurance company representatives are required to physically attend the mediation unless the Mediator and all of the other parties to the mediation excuse their attendance or consent to their attendance by telephone or other electronic means. 5. The parties who attend a duly scheduled mediation conference shall have the right to recover their share of the Mediator's compensation from any party or parties who fail to attend the conference without good cause. B. Finalizing Agreement. If an agreement is reached in the conference, the terms ofthe agreement shall be confirmed in writing and signed by all parties. C. Mediation Fees charged by the Mediator shall be paid in accordance with G.S. § 143-128(fl). D. Failure to compensate Mediator. Any party's failure to compensate the Mediators in accordance with G.S. § 143-128(fl) shall subject that party to a withholding of said amount of money from the party's monthly payment by the County. Should the County fail to compensate the Mediator, it shall hereby be subject to a civil cause of action from the Mediator for the 1/3 portion of the Mediator's total fee as required by G.S. § 143-128(fl). RULE 5. AUTHORITY AND DUTIES OF MEDIATORS A. Authority of Mediator. 1. Control of Conference. The Mediator shall at all times be in control of the conference and the procedures to be followed. 2. Private Consultation. The Mediator may communicate privately with any participant or counsel prior to and during the conference. The fact that private communications have occurred with a participant shall be disclosed to all other participants at the beginning of the conference. Scheduling the Conference. The Mediator shall make a good faith effort to schedule the conference at a time that is convenient with the participants, attorneys and Mediator. In the absence of agreement, the Mediator shall select the date for the conference. Page 4 of 6 4. Determining good cause for a party's failure to appear at a scheduled mediation conference. B. Duties of Mediator. The Mediator shall define and describe the following at the beginning of the conference: a. The process of mediation. b. The difference between mediation and other forms of conflict resolution. c. The costs of the mediated settlement conference. d. That the mediated settlement conference is not a trial, the Mediator is not a judge, and the parties retain their legal rights if they do not reach settlement; however, the Mediator will advise all parties that failure to appear at mediation without good cause may result in imposition of sanctions and may be asserted as a bar to lawsuits by claimants who have failed to exhaust this administrative remedy. e. The circumstances under which the Mediator may meet and communicate privately with any of the parties or with any other person. f. Whether and under what conditions communications with the Mediator will be held in confidence during the conference. g. The inadmissibility of conduct and statements as provided by G.S. §7A- 38.1(1). h. The duties and responsibilities of the Mediator and the participants. i. That any agreement reached will be reached by mutual consent. 2. Disclosure: The Mediator has a duty to be impartial and to advise all participants of any possible bias, prejudice or partiality. 3. Declaring Impasse: The Mediator may deternline at any time during the mediation conference that an impasse exists and that the conference should end. 4. Reporting Results of Conference. The Mediator shall submit a written report to the County and the other parties within 10 days of the conference stating whether or not the parties reached an agreement. The Mediator's report shall indicate the absence of any party from the mediated settlement conference without permission or good cause. 5. Scheduling and Holding the Conference. It is the duty of the Mediator to schedule the conference and conduct it prior to the deadline of completion set by the rules. The Mediator shall strictly observe deadlines for completion of the conference unless said time limit is changed by agreement of the parties. RULE 6. COMPENSATION OF THE MEDIATOR Page 5 of 6 A. The parties shall compensate the Mediator for mediation services at the rate proposed by the Mediator and agreed to by the parties at the time the Mediator is selected. RULE 7. RULE MAKING A. These Rules maybe amended by the County at any time. Amendments will not affect mediations where claims and/or requests for mediation have been filed at the time the amendment takes effect. RULE 8. DEFINITIONS A. "County" shall mean the County of Orange, North Carolina. B. "Project Designer" is that person or firm stipulated as project designer in the Contract Documents for the project. C. "Claim" is a demand or assertion by a parry seeking adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the parties to a Contract involved in the County's building construction renovation and repair projects arising out of or relating to the Contract or the construction process. Claims must be initiated by a written notice. The responsibility to substantiate Claims shall rest with the parry making the Claim. D. "Good Cause" generally includes any circumstance beyond the control of a party, which prevents that party from meeting obligations. When good cause is asserted as an excuse for a party's failure to appear at a mediation conference or to otherwise comply with the requirements of these Rules, the Mediator, in his or her sole discretion, will determine whether good cause exists to excuse the parry's failure to appear or otherwise comply with these rules. RULE 9. TIME LIMITS A. Any time limit provided for by these Rules maybe waived or extended at the sole discretion of the County, if no Mediator has been selected, and at the discretion of the County with concurrence of the Mediator if a Mediator has been selected. F:~I,isa~forms~Appendix A Agmt for Construction Manager At Risk Serv form.doc Page 6 of 6 APPENDIX B TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES LIST OF COST ELEMENTS TO BE PROVIDED BY APPENDIX C T,O AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES ORANGE COUNTY MINORITY BUSINESS ENTERPRISE POLICY APPENDIX D TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES DIVISIONS OF THE WORK FOR GUARANTEED MAXIMUM PRICE TO BE PROVIDED BY APPENDIX E TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES CMAR GMP PROPOSAL APPENDIX F TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES MASTER SCHEDU<_E TO BE PROVIDED BY