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HomeMy WebLinkAbout1980-05-06; City Council; Resolution 61661 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 6166 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AND AGREEING TO AMENDMENT NO. 1 TO THE NINTH SUPPLEMENT TO THE BASIC AGREEMENT TO PROVIDE CONSTRUCTION MANAGEMENT SERVICES FOR PHASE Ill BETWEEN THE CITY OF CARLSBAD AND VISTA SANITATION DISTRICT, BUENA SANITATION DISTRICT, SAN MARCOS COUNTY WATER DISTRICT, LEUCADIA COUNTY WATER DISTRICT AND ENClNlTAS SANITARY DIS- TRICT, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT ON BEHALF OF THE CITY BE IT RESOLVED by the City Council of the City of Carlsbad as follows: 1. That the City of Carlsbad does hereby approve and agree to Amendment No. 1 to the Ninth Supplement to the Basic Agreement to Provide Construction Management Services for Phase Ill, a copy of which is attached and incorporated by reference herein. 2. That the Mayor of the City of Carlsbad is hereby authorized and di- rected to execute on behalf of the City of Carlsbad Amendment No. 1 to the Ninth Supplement to the Basic Agreement to Provide Construction Management Ser- vices for Phase 111. PASSED, APPROVED AND ADOPTED by the City Council of the City of Carlsbad, at a regular meeting held the 6th day of May , 1980, by the follow- ing vote, to wit: AYES: Councilmen Packard, Anear, Lewis, Councilwoman Casler and NOES: None Kul chin ABSENT: None ATTEST: (SEAL) AMENDMENT NO. 1 TO THE NINTH SUPPLEMENT TO DASIC AGREE14ENT TO PROVIDE CONSTRUCTION MANAGEMENT SERVICES FOR PHASE 111 .- This Amendment No. 1 to the Ninth Supplemnt to Basic Agreement is made . and entered into as of the . day of 1980, by and among: VISTA SANITATION DISTRICT ("Vista") a county sanitation district, whose governing board is the City Council of the City of Vista; CITY OF CRRLSBAD ("Carlsbad") , a municipal corporation; BUENA SANITATIOF! DISTRICT ("Buena") , a county sanitation district, whose governing board is the Board of Supervisors of San Diego County; SAN MARCOS COUNTY WATER'DISTRICT ("San Marcos"), a county water district; LEllCADIA COUNTY WATER DISTRICT (!'Leucadiat'), a county water district; aad ENCINITAS SANITARY DISTRICT ("Encini tas") , a sanitary district. REC I TALS - WHEREAS, the aforesaid public agencies have entered into a joint powers . agreement, pursuant to Chapter 5 of Division 7 of Title I of the Governnient Code for the joint exercise of powers relating to the acquisition, cofistruction, operation and r maintenance of faci 1 i ti es for the transmi ssi on, trea.tment and di sposal of sewage , which facilities c0mpris.e a single system of sanitation works and includes expansion of such facil.iiies by virtue of a project commonly. known as Phase 111 enlargement cif and upgrading of the Encina Water Pollution Control Facility; and WHEREAS, engineering design for the aforesaid enlargement' and upgrading is presently in progress; and Wt!ElltAS, sai d en1 argement and upgradi ng is presently in progress ; and EJHEREAS, said enlargement and upgrading will require construction contracts havi ny substanti a1 monetary value and wi 11 requi re supervision, coordination, and nianagemmt; and WEREAS, it is in the best interest3 of a71 the public agencies which 0 0 are a party hereto that the services of a construction manager be provided for the Phase I11 enlargement and upgrading; and WHEREAS, the Ninth Supplement ot the Basic Agreement was made and en: tered into as of the 7th day of March 1979 by the public agencies which are a party hereto, and WHEREAS, upon an audit by the Environmental Protection Agency ('IEPA") of the Agreement for Construction Management Services known as Exhibit "A" to the Ninth Supplement to the Basic Agreement, the EPA recommended changes in the Agreement for Construction Management Services through' Audit Report No EZaW-09-0165-91329; and WHEREAS, the recommended changes have been incorporated into Amendment * No 1 to the Master Agreement for Construction Management Services ("Amendment") attached hereto and marked Exhibit "A"; and WHEREAS, the Amendment involves no change in cost or scope of work to the Master Agreement; and WHEREAS, at a regular meeting of the Joint Advisory Committee held on March 26, 1380, a motion was duly made, seconded, and unanimously adopted that Vista Sanitation District be authorized to enter into the Amendment; and WHEREAS , the said proposed Amendment is in accordance with the Amendments to Title 40 of the Code of Federal Regulations, Part 35, as. published in the Federal Register of December 17, 1975; and WHEREAS, the parties to the aforesaid Joint Powers Agreement are receiving a grant from the United States Environmental Protection Agency for a substantial portion of the said Phase 111 enlargement and upgrading; and WHEREAS, by a duly authorized and executed supplemental agreement to the aforesaid joint powers Agreement the Vista Sanitaiton District has been appointed and is presently acting as administrator of the Phase I11 enlargement and upgrading; and WHEREAS, said Vista Sanitation District requires the approval of all parties to the aforesaid Joint Powers Agreement in order to amend the contract for construction management services for said Phase I11 enlargement and upgrading. 3 ., ,.-. . NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES AND MUTUAL COVENANTS AND AGREEMENTS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS: Section 1: That the Board of Directors of the Vista Sanitation District be, and is hereby authorized to enter into Amendment No. 1 to the Master Agreement for Construction Management Services with LOWRY & ASSOCIATES, a California corporation; and RONALD 0. ROHADFOX, dba CONSTRUCTION CONTROL SERVICES, a joint venture, in the form and substance as that attached hereto and marked Exhibit "A". Section 2: This amendment may be executed in counterparts, and upon execution thereof by all of the parties set forth on Page 1 hereof, each counter- part shall be deemed an original. IN WITNESS WHEREOF, each party hereto has caused this Amendment No. 1 to the Ninth Supplement to Basic Agreement to be signed by its respective officials heretofore duly authorized by the 1 egis1 ati ve bodies thereof. Approved by Resolution VISTA SANITATION DISTRICT No. on By : Chairman Approved by Resolution NO. ~p 1136 on J,IL !go Approved by Board Order BUENA SANITATION DISTRICT No. on By : Clerk, Board of Supervisors Approved by Roll Call SAN MARCOS COUNTY WATER DISTRICT Vote on Approved by Resolution No. 9 on By : President By : Secret a ry 1 LEUCADIA COUNTY WATER DISTRICT By: President . By: Secret a ry - 3- .L e Adopted by Resol uti on No. on 0 ENCINITAS SANITARY DISTRICT By 1 President By: Secret a ry .. . - .. .. 1. 11. 111. 0' 0 At4ENDMENT NO. 1 TO THE AGREEMENT FOR CONSTRUCTION MANAGEMENT SER BETWEEN VISTA SANITATION DISTRICT AND LOWRY AND ASSOCIATES/CONSTRUCTION CONTROL S FOR PHASE I11 ENLARGEMENT AND UPGRADI FOR THE ENCINA POLLUTION CONTROL FACIL REFERENCE Agreement for Construction Management Services between Vista Sanitation District and Lowry & Associates/Construction Control Services for Phase 11 I Enlargement and Upgrading of the Encina Water Pollution Control Facility executed February 7; 1979. REASON FOR AMENDMENT Whereas the EPA, Office of Audit, hereinafter referred to as EPA,and the State Water Resources Control Board, Division of Water Quality, hereinafter referred to as STATE, requires, for EPA Audit reasons and for State contract approval reasons, that the referenced contract, hereinafter referred to as "Master Agreement," be revised in accordance with recommendations contained in (l} EPA Audit Report No. E2aW9-09-0165-91329; (2) State's Response to Audit Report" attached to Division of Water Quality letter referenced 576:RAQ and dated November 8, 1979; and (3) State "Record of Communications" to A&E and Audit Files on Contract No. 1016 recorded by the State's Mr. Rich Quinley on December 12, 1979, the Master Agreement shall be amended. RECOMMENDED REVISIONS BY EPA AND THE STATE . A. Amend the Master Agreement to make the originally negotiated fixed fee and cost ceiling "Budget" amounts which could not be exceeded except by formal amendment to the Master Agreement. I B. Amend the Master Agreement to establish the authorization of planned services in the Master Agreement by Task Order whereby each construction management services proposal that can adequately be scoped at the time would set forth the most current cost and pricing data and would allocate costs to each specific Step 2 and Step 3 grant. \ C. D. E. Amend the Master Agreement to provide for the reimbursenent of overhead costs based on individual company rates in lieu of the specified composite rate. Amend the Master Agreement to provide for the reimbursement of overhead costs based on a field overhead rate for full time field personnel. Amend the Master Agreement to provide for scope changes within the Task Order procedure including all costs and fees for scope changes not envisioned in the overall cost negotiations. IV. AMENDMENT ._-- Exhibit B of the Master Agreement between Vista Sanitation District and Lowry & Associates dated February 7, 1979, is hereby amended as follows: Replace the entire exhibit with the words, EXHIBIT B A. COMPENSATION: Compensation of the amounts specified in Paragraph D of this exhibit for planned construction management services in the Master Agreement are "Budget" figures for purposes of State contract approval procedures, however, these amounts shall not be exceeded without a formal amendment to the aforesaid Master Agreement for an agreed upon increase in scope of services. Compensation for planned construction management services in the Master Agreement shall be allocated by cost to each specific Step 2 and Step 3 grant by a Task Order Authorization procedure in conformance with State contract approval require- ments. Each TAsk Order authorization and all amendments thereto shall be based on a proposal for services that can adequately be scoped at the time and shall set forth the most current cost and pricing data. -2- m a B. PAYMENT OF COMPENSATION: The Owner shall pay the sums as outlined in subsequent task orders in accordance with the services rendered. 1. For the professional services as outlined in Article 111, the Owner shall pay the Construction Manager sums mutually agreed upon at the time of authorization. Such sums shall be in the form of (1) lump sum, (2) cost-plus-fixed-fee, or (3) per diem. a. Lump Sum. together with the services to be rendered shall be mutually agreed upon. adjusted in the event of substantial changes in the scope of work or delays beyond the control of the Construction When the fee is based on a lump sum, such sum The lump sum fee shall be equitably , Ranager. b. Cost-Plus-Fixed Fee. When the fee is based on cost-plus- fixed fee, the fixed fee shall be mutually agreed upon. "Cost" is defined as base payroll cost, plus dir'ect payroll overhead plus indirect overhead cost, plus expenses directly related to the project, including mileage at the prevailing federally approved reimbursement per mile, transportation costs, living allowances for personnel away from home, long distance telephone, printing and reproduc- tion work, etc. Overhead rates for the reimbursement of overhead expenses shall be based on individual company rates for the joint venture firms. overhead expenses shall be based on a field overhead rate for full time field personnel assigned to the project. Overhead rates for the reimbursement of The multipliers for direct overhead and indirect overhead shall be identified in the Task Order supplements to this Agreement. the multipliers shall be the ones in effect with the Construction Manager at the time the letter of authorization In the event no multipliers are identified, or supplement is executed. -3- a 0 The Construction Manager, as soon as possible, but not later than ninety (90) days after the expiration of his fiscal year, or such other period as may be mutually agreed upon, shall submit to Owner a proposed provisional overhead rate or rates for that period based on the Con- struction Manager's actual cost experience during that period, together with supporting cost data. Negotiation shall be undertaken as promptly as practicable after receipt of the Construction Manager's proposal . Allowability of costs and acceptability of cost allocation methods shall be determined in accordance with the appli- cable portions of the Federal Procurement Regulations, 41 CFR 1-15.2 and CFR 1-15.4 as in effect on the date of thi s Agreement. The results of each negotiation shall be set forth in a modification of this Agreement, which shall specify (1) the agreed negotiated provisional rates, (2) the bases to which the rates apply, and (3) the periods for which the rates apply. 'Pending establ i shment of negotiated provisional overhead rates for any period, the Construction Manager shall be reimbursed at billing overhead rates as provided in the Agreement, subject to appropriate adjustment when the negotiated provisional rates for that period are established. To prevent substantial over or under payment, and to apply either retroactively or prospectively, billing overhead rates may, at the request of either party, be revised by mutual agreement. Any such revision of billing overhead rates shall be set forth in a modification to this Agreement. ' Any failure by the parties to agree on any rates under this clause shall be subject to the "Renedies" clause contained in Appendix C-1 of the Master Agreement. Negotiated provisional overhead rates negotiated by the parties to this Agreement shall be used to adjust all interim billings as soon as such rates are established. C. 2. Negotiated provisional overhead rates shall be subject to review and revision by the proper audit activity designated by the EPA Project Officer, and shall be adjusted either upward or downward in accordance with EPA rulings following interim or final audits. Indirect costs for reimbursement work under this Agreement shall be the product of direct labor costs multiplied by the final audited office and field overhead rates. Per Diem. When the fee is based on the per diem basis, the fees shall be based on the negotiated hourly rate schedule in effect at the time of authorization, plus expenses as described in paragraph (2) above. Payments to the Construction Manager shall be on a monthly basis and monthly statements for. services will be submitted to the Owner at a mutually agreeable date and will be due and payable within 30 days thereof. Monthly payments shall include the Construction Manager's actual costs incurred during the payment period and a portion of the profit equivalent to the ratio of the monthly cost to the total cost of the Task Order. Interest will be payable on the unpaid balance after 60 days from date of billing at the rate of one percent per month. In the event progress payments for the Construction hIanager 's services are limited in amount by provisions' imposed by a governmental funding agency, the Owner shall make additional payment from its own funds sufficient to pay the total progress payment or such overdue payments shall bear the interest costs specified hereinbefore. C. COMPENSATION FOR SCOPE CHANGES. - Compensation for mutually agreed upon changes in scope of construc tion management services shall be set forth in Task Orders to include costs and fees for each individual Step 2 or Step 3 grant project. The Task Orders containing compensation for changes in -5- scope of services shall amend the established cost ceiling and fixed professional fee in the Master Agreement and shall be considered a formal amendment thereto. The contracted level of effort for services to be performed in Exhibit A of the Master Agreement is based upon the construction contractor's normal quality of performance and the construction time schedule as mutually contemplated at the time of negotiations between the Construction Kanager and the Owner. Such level of effort is based in part on these factors and provides the staffing required to ensure qual i ty control. Should a significant change occur in either performance or time factors, the Construction Manager or the Owner may consider it a "change in scope of work" and initiate a request for an upward or downward renegotiation of the cost ceiling ana' the fixed fee. A change in the level of effort expended by the Construction Manager for planned services in the Master Agreement in and of itself is not deemed a "change in scope of work." Any claim by the Construction Manager for adjustment under this clause must be asserted within thirty (30) days from the date that any "change in scope of work" becomes apparent: however, that'if the Owner decides that the facts justify such action, Owner may receive and act upon any such claim asserted at agree to any adjustment shall be a dispute and subject to the "Remedies" clause contained in Appendix C-1 of the Master Agreement. However, except as provided in the following paragraph, nothing in this clause shall excuse the Construction Manager from proceeding with the contract as adjusted. provided, . any time prior to final payment under this contract. Failure to The "cost ceiling" established for work to be performed under . Article I , SCOPE OF CONSTRUCTION MANAGEKENT SERVICES, shall not be exceeded in the absence of a formal amendment to this contract. Such amendment must set forth a renegotiated "cost ceiling". Construction Manager shall not be obligated to continue performance The -6- .. . 0 0 \ or incur costs beyond any established ''cost ceiling" until such time that the Owner authorizes a new "cost ceiling" by means of a formal amendment to this contract. 0. COMPENSATION SCHEDULE: For each Construction Planagement service authorized under this agreement, compensation shall be in accordance with the appl i - cable portions of this agreement and the following schedule: Basis of Compensation: Cost reimbursement Estimated Cost Celing, inclusive of all subcontracts and fixed professional fee: $1,167,027.85 Fixed Professional Fee : $152,221.02 Portion of Fixed Professional Fee payable monthly: An amount equal to fifteen percent (15%) of the billing monthly costs - reimbursement billing, but in no event to exceed the Fixed Professional Fee stated above. Unless there is an agreed upon increase in the Scope of Work from that outlined in Exhibit "A", paragraph A, Construction Manager agrees that the maximum cost ceiling allowed shall be $1,767,027.85. In the e-vent any amount of the Fixed Professional Fee remains unpaid upon completion of the project, said amount shall be paid in a lump sum within thirty-five (35) days after the project is completed. The aforesaid estimated cost ceiling shall not be increased without an amendment to this agreement that has been approved by all the member agencies of the Encina Joint Powers. -7- JV. EFFECTIVE DATE OF THIS P lENC lENT - This amendment is effective on and from the day, month and year it is signed by an authorized signatory of the Vista Sanitation District. CONSTRUCTION MANAGER LOWRY & ASSOCIATES By: Date: CONSTRUCTION CONTROL SERVICES By: Date: OWNER ' VISTA SANITATION DISTRICT By: Date: - 8-