HomeMy WebLinkAbout1979-03-06; City Council; 5777; Ninth Supplement to Basic Agreement to Provide for Construction Management Services of Phase III Encina Agency and Vistac
CITY OF CARLSBAD
AGENDA BILL NO. ^77
DATE: March 6. 1979
DEPARTMENT: Encina Water Pollution Control Facility
Subject: NINTH SUPPLEMENT TO BASIC AGREEMENT TO PROVIDE FOR CONSTRUCTION
MANAGEMENT SERVICES FOR PHASE III
Statement of the Matter
The Joint Advisory Committee has recommended to the Encina member agencies that
they approve the Ninth Supplement to the Basic Agreement. This would authorize
the Vista Sanitation District to retain a construction management firm to pro-
vide services for the Phase III upgrading and expansion project.
The services' provided are those that must be provided by a contractor, consul-
tant or agency staff. Construction management services are grant eligible.
The attached staff report discusses the matter in more detail.
Exhibits
1. Staff memo of February 28, 1979
2. Agreement for Construction Management Services
3. Resolution No. 3~7oSapproving Ninth Supplement
Recommendation
If Council concurs, approve Resolution Ho.S'76S' approving the Ninth Supple-
ment to the Basic Agreement.
Council Action:
3-6-79 Council adopted Resolution No. 5705, approving a Ninth Supplement
to the Basic Agreement to provide for construction management
services for Phase III.
MEMORANDUM
TO: City Manager
FROM: Public Works Administrator
DATE: February 28, 1979
SUBJECT: Ninth Supplement to Basic JAC Agreement
During the process of developing a plan to manage the construction pro-
gram for the Encina Water Pollution Control Facility Phase III Upgrading
and Expansion, several alternatives were discussed. Among the alterna-
tives were lumping all construction under one prime contract and letting
that contractor control the project; hiring sufficient staff to manage
the construction program; and retaining a construction management special-
ist. A JAC subcommittee and the entire Joint Advisory Committee recommend-
ed the retention of a construction management specialist. Among the bene-
fits were immediate availability of personnel trained in the management of
projects similar to the Phase III project; ability to work with the design
engineer and owners to package contracts in smaller, easier to handle units
which would allow "fast tracking" the project; and the ability to complete
the project up to six months ahead of the anticipated completion date.
The scope of work and the level of effort for the construction management
program are outlined on pages Al to A9 of the agreement exhibit to the
Ninth Supplement. The costs of these services are outlined on pages B6
and B7. Actual payment will be made on a cost plus fixed fee basis. Con-
struction management costs are grant reimbursable.
While the expense of a construction management contract is great, it should
be kept in mind that it is in lieu of hiring our own staff and contracting
for testing and inspection services. These savings plus the anticipated
savings in construction contracts and the accelerated completion schedule
make the construction management proposal appear very favorable.
RECOMMENDATION
It is the recommendation of the Joint Advisory Committee that the Ninth
Supplement to the Basic Agreement, authorizing the Vista Sanitation Dis-
trict to contract for construction management services for Phase III,
be approved.
Ronald A. Beckman, P.E.
Public Works Administrator
RAB:VEB
AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES
BETWEEN VISTA SANITATION DISTRICT
AND
FOR PHASE III ENLARGEMENT AND UPGRADING OF
THE ENCINA WATER POLLUTION CONTROL FACILITY
THIS AGREEMENT, made and entered into as of the
day of , 1979, by and between the
VISTA SANITATION DISTRICT, a county sanitation district,
hereinafter referred to as "District" or "Owner", and LOWRY AND
ASSOCIATES, a California corporation,' and RONALD 0. ROHADFOX,
d/b/a CONSTRUCTION CONTROL SERVICES, a joint venture, herein-
after referred to as "Construction Manager".
WITNESSETH;
WHEREAS, the District has planned for construction
management services for the Phase III Enlargement and Upgrading
of the Encina Water Pollution Control Facility (hereinafter
referred to as the "Project"); and
WHEREAS, District and other public agencies have entered
into a Joint Powers Agreement, pursuant to Chapter 5 of Division
7 of Title 1 of the Government Code for the joint exercise of
powers and the acquisition, construction, and operation of
facilities for the transmission, treatment, and disposal of
sewage which facilities comprise a single system of sanitation
works and includes any expansion of such facilities by virtue
of the project which is the subject of this agreement; and
-1-
EXHIBIT A
WHEREAS, by a duly authorized and executed Supplemental
Agreement to the aforesaid Joint Powers Agreement, District
has been, and presently is, authorized to enter into this Agree-
ment as well as to act as the administrator in connection with
the subject Project; and
WHEREAS, it is necessary and desirable to expand and
upgrade the Encina Water Pollution Control Facility (WPCF)
to meet environmental protection requirements of applicable
regulatory bodies; and
WHEREAS, District is receiving a grant from the U. S.
Environmental Protection Agency for the proposed project, and
desires that this Agreement shall be 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, Construction Manager has available and offers to provide
personnel and facilities necessary to accomplish the work
within the required time;
NOW, THEREFORE, District and Construction Manager
agree as follows:
I. SCOPE OF CONSTRUCTION MANAGEMENT SERVICES;
Construction Manager agrees to perform those services which are
more particularly described hereafter. Unless modified in
writing by the party to be charged, duties of Construction
Manager shall not be construed to exceed those services
specifically set forth herein.
-2-
A. PLANNED CONSTRUCTION MANAGEMENT SERVICES
Construction Manager agrees to perform those tasks
described in Exhibit "A" Planned Construction Manage-
ment Services, which is attached hereto and incorporated
herein by reference. Compensation for planned services
shall be as provided below in Article III.
II. AUTHORIZATION, PROGRESS AND COMPLETION;
Specific authorization to proceed with the work described
in Exhibit "A" shall be granted in writing by the District. The
Construction Manager shall not proceed with the work without such
authorization. Such authorization shall set forth the date of
commencement of the work and the schedule of progress and completion.
III. COMPENSATION;
For the services described in Exhibit "A" which are to be
performed by the Construction Manager, the District agrees to pay,
and the Construction Manager agrees to accept, compensation in
accordance with the schedules set forth in Exhibit "B", Compensation
of non-direct salary costs shall be as set forth in the written
authorization for special services or as specifically detailed in
Exhibit "B".
IV. RESPONSIBILITY OF CONSTRUCTION MANAGER;
The Construction Manager is employed to render a pro-
fessional service only and any payment made to it is compensation
solely for such services as it may render in the design and
construction of the project. The Construction Manager makes no
warranty, either expressed or implied, as to its findings, re-
commendations, specifications, or professional advice other
-3-
than they were promulgated after following a practice usual
to the engineering profession.
The Construction Manager shall indemnify and hold the
District and all of its officers, principals, agents and
employees harmless from all liability for injuries to persons
or damage to property which arise from negligent acts or
omissions by the Construction Manager and/or any of its sub-
contractors in performing services under this Agreement.
V. INTEGRATION;
Subject to the provisions of Paragraph X hereof,
this Agreement represents the entire understanding of District
and Construction Manager as to those matters contained herein.
No prior oral or written understanding shall be of any force
or effect with respect to those matters covered hereunder.
This Agreement may not be modified or altered except in writing
signed by the party to be charged.
VI. OWNERSHIP OF DOCUMENTS;
All plans, studies, sketches, drawings and specifications
as herein required are the property of the District whether the
work for which they are made be executed or not. In the event
this contract is terminated, all documents, plans, specifications,
and drawings of the facility shall be delivered forthwith to
the District.
VII. SUBCONTRACTS;
Construction Manager shall be entitled, to the extent
determined appropriate by the Construction Manager, to subcontract
-4-
any portion of the work to be performed under this project.
Construction Manager shall negotiate and administer sub-
contracts in accordance with Provision 11 of Appendix C-l
to 40 CFR Part 35, Subpart E as published in the Federal
Register on December 29, 1976. The Construction Manager
shall be responsible to the District for the actions and
omissions of persons and firms performing subcontract work.
At the time subcontracted services are anticipated,
the Construction Manager shall notify District of the nature
of and need for such services and identify the proposed sub-
contracting firm. The Construction Manager must receive
written approval from the District prior to utilization of
any subcontractors.
The Construction Manager is authorized by the District
to subcontract work having a cost which will not exceed
fifteen percent (15%) of the total amount of compensation due
under this Agreement. In the event Construction Manager desires
to subcontract work having a cost in excess of fifteen percent
(15%), the work shall be subject to the approval of the District
and this Agreement shall be amended.
Nothing contained in this contract shall create any
contractual relationship between any subcontractor of the Con-
struction Manager and the District. The Construction Manager
shall bind every subcontractor and every subcontractor of a
subcontractor by the terms of this contract applicable to his
work unless specifically noted to the contrary in the sub-
contract in question approved in writing by the District.
-5-
VIII. DISTRICT'S PROJECT OFFICER;
The District's Project Officer, who shall be empowered
to act for the District in accordance with the provisions of
this Agreement, where such acts are not contrary to law or
District ordinances, shall be the General Manager of the Encina
Water Pollution Control Facility or as appointed by the District.
IX. CONSTRUCTION MANAGER'S PROJECT OFFICER;
The Construction Manager's Project Officer, who shall
be empowered to act for the Construction Manager in accordance
with this Agreement in all matters relating to the technical
administration of services to be provided, shall be the Con-
struction Manager's duly appointed Contract Administrator and
Resident Engineer for the work. The principal Construction
Management Team members are named in Exhibit "A" Planned
Construction Management Services and shall not be changed except
with written approval of the District.
X. EPA REQUIRED TERMS AND CONDITIONS;
The "Required Provisions - Consulting Engineer
Agreements" as published in the Federal Register dated December
29, 1976, as Appendix C-l to Part 35 of Title 40 of the Code
of Federal Regulations, are attached hereto and incorporated
herein by reference as Exhibit "C".
XI. TIME IS OF ESSENCE;
It is understood and agreed that time is of the essence
in the performance of this Agreement, in that should the services
-6-
agreed herein to be performed by Construction Manager not be
completed within the time set forth for such performance in the
schedule of completion pursuant to Article II, District would
thereby become exposed to the loss of grants from the State of
California and the United States Government to the extent of
eighty seven and one-half percent-(87%%) of the ultimate
cost of Project Construction, resulting in consequential damages
to District.
XII. EFFECTIVE DATE;
This Agreement shall be effective on and from the day
and year first above written.
OWNER:
VISTA SANITATION DISTRICT
By:
Bernard Rappaport, Chairman
ATTEST:
Jean Brooks O'Brien, Clerk
APPROVED AS TO FORM:
WALKER & GANN
By:
CONSTRUCTION MANAGER:
LOWRY AND ASSOCIATES
By:
CONSTRUCTION CONTROL SERVICES
By;
Roy H. Gann, Counsel for the
Joint Advisory Committee
-7-
c EXHIBIT "A
I. GENERAL
The services to be rendered by the Construction Manager shall include
those services as generally required to facilitate the timely construction
of the Encina Sewage Treatment Plant Phase III Upgrading and Expansion Pro-
ject. Work will be performed in accordance with U.S. EPA requirements and
Clean Water Grant Program Guidelines issued by the Division of Water Quality,
California State Water Resources Control Board. Specific guidance is con-
tained in the guidelines entitled "Managing Construction of Clean Water Grant
Projects" issued by the Division of Water Quality, California State Water Re-
sources Control Board (November, 1977) and the District's Construction Man-
agement Plan, as amended.
For the purpose of the Agreement, the scope of services to be provided is
divided into three (3) phases.
II. SCOPE OF SERVICES '
A. The Construction Manager shall assist the District in devel-
oping a master schedule of the complete project.
B. The Construction Manager shall become a member of the value
engineering team and provide input on the construction impacts
of potential alternative designs. Key construction impacts
shall include the effect on schedules, cost, plant operation
during construction, and contract coordination of the multiple-
bid packages.
C. Provide cost control functions as necessary to determine the
feasibility of bid packaging and making construction manage-
ment decisions.
D. In detailed design, the Construction Manager will provide re-
views concurrent with monthly Design Review Committee meetings
scheduled by the District. Early reviews will include con-
sideration of concept, systems, design criteria, constructa-
bility, long lead items, and cost effectiveness, as appropriate.
A-l
2. Procurement Phase
A. After issuance by the District of a contract or purchase agree-
ment, the Construction Manager will monitor and expedite the
progress of the respective contractors, manufacturers or fabri-
cators of such items and report to the District concerning any
problems of prospective delay in delivery.
B. Process equipment drawing submittals. Includes logging in,
transmittal to A/E and timely reply to contractor.
C. Establish means of receipt, inspection, storage, protection and
issue for installation of long lead procurements.
D. The Construction Manager shall provide information to the En-
gineer to insure specifications are compatible with construction
management plans.
3. Construction Contract Administration Phase
A. Hold preconstruction conferences to review contract requirements,
establish procedures for submittals, schedule meetings, set pro-
gress cutoff dates, and introduce various participants in the
construction operation.
B. Provide adequate field staff competent to observe construction
at all times and to determine contractor's compliance with con-
tract requirements. Personnel assigned to the work by the Con-
struction Manager will be satisfactory to the District and SWRCB.
Kb substitutions will be made without the District's approval.
If the District determines that an ^employee of the Construction
Manager on the work is unsatisfactory, District may request his
removal and the Construction Manager will comply promptly and
assign a satisfactory replacement. No employee so removed will
be reassigned to the work without the District's approval. In-
spect contractors' work for dimensions, position and workman-
ship; obtain tests of materials as necessary pursuant to deter-
mination of conformance to contract documents.
C. The Construction Manager will define and operate a system for
fair progress payments of construction cost which will be limited
to the value of construction. Review and recommend contractor's
estimates for progress payments.
D. All documentation for each contract will be maintained within a
central jobsite file by the Construction Manager. The filing
system will separate the documentation by function, e.e., change
orders, submittals, reports, logs, schedule updates, photographs,
laboratory reports, etc. Each function will be filed in chron-
ological order to provide a job history as protection against
A-2
future claims. Upon jok completion/ th<:: files will be submitted
to the District.
E. Receive and coordinate with the appropriate A/E shop drawings
and other documents such as equipment manuals.
F. Review and formulate recommendations or requests for contract
changes; analyze effects on costs, schedules and benefits; co-
ordinate modification of the contract documents; and assist in
negotiations.
G. Inform the District promptly of a claim by a contractor; admin-
ister the claim in accordance with District's procedures.
H. Construction Manager will maintain record drawings by revising
original contract plans. The plan changes will be provided to
the A/E, namely Brown and Caldwell.
I, After construction has begun, Construction Manager will verify
such lines and grades as required by the contractors.
J. Determine final completion and provide written notice to the Dis-
trict that the work is ready for final inspection. Secure and
transmit to the District required warranties, affidavits, re-
leases, bonds, and waivers. Turn over to the District all keys,
manuals, record drawings, and maintenance stocks.
III. PROPOSED TEAM TO MEET THE CONSTRUCTION MANAGEMENT OBJECTIVES
To meet the objectives for the Encina Joint Powers Project, a team of
experienced personnel is proposed as shown on the Construction Manaage-
ment Organizational Chart, as set forth on Page A-7. The job functions
for these team members are outlined as follows«
Encina General Manager (as set forth on Page A-7)
a. Administrates and coordinates all aspects of the project.
b. Sets up and maintains liaison with the Joint Powers Board, the
Encina member agencies, principals of contracting firms, and
supervisory team members.
c. Monitors work for compliance with Encina Joint Powers require-
ments .
Project Advisory Committee (as set forth on Page A-7)
a. Provides monthly review of project team performance during the
progress of the work.
A-3
b. Coordinates with the principal-in-charge to insure adequate
staffing on the project.
Principal-in-Charge (as set forth on Page A-7)
a. Has responsible charge of the joint-venture project team with
commensurate authority and responsibility.
b. Will represent the Encina Joint Powers' interests if required
and requested on governmental and regulatory agency issues.
Resident Engineer (as set forth on I'age A-7)
Preconstruction Phase
a. Reviews user needs and design criteria.
b. Prepares trade-off studies as necessary.
c. Develops a detailed project schedule.
d. Prepares a detailed project budget.
e. Identifies industry constraints or limitations.
f. Identifies supplier constraints or limitations.
g. Identifies construction methods/ constraints or limitations,
h. Identifies possible packaging of smaller contracts.
i. Verifies budget and schedule with new information.
j. Reviews time control provisions of proposed construction
contracts.
k. Makes recommendations to District for review.
1. Prepares project procedure guidelines for contruction phase.
Construction Phase
a. Conducts supervision of the entire field operation.
b. Reviews contract documents and contract formation.
c. Conducts preconstruction conference and authorizes construc-
tion start-up.
A-4 COPY
d. Conducts weekly construction meetings, and updates schedules.
e. Preparej monthly progress reports and pay requests.
f. Conducts change order negotiation and preparation.
g. Approves final job acceptance and supervises start-up,
h. Assures warranty enforcement.
•v
Field Engineer (as set forth on Page A-7)
a. Coordinates with design engineers.
b. Submits review and monitors reports.
c. Reviews contractor substitution requests.
d. Performs prepurchase order placement and follow-up.
e. Requests or performs design and calculation of field modi-
fications .
f. Prepares as-built drawings.
g. Coordinates activities between contractors' and District's
staffs.
h. Provides general assistance to Project Manager
f
Inspectors (as set forth on Page A-7)
a. Performs daily inspection of construction activities.
b. Supervises field testing and prepares test samples.
c. Prepares daily reports.
d. Supervises and maintains photographic records of job progress.
e. Monitors force account activity.
Secretary (as set forth on Page A-7)
a. Provides secretarial assistance.
b. Maintains correspondence files.
A-5 COPY
c. Organizes and maintains other job files including:
1) Daily reports
2) Weekly meeting minutes
3) Monthly reports
4) Change orders
5) Contract documents
6) Test results
7) Submittals
A-6
ENCINA JOINT POWERS
CONSTRUCTION MANAGEMENT ORGANIZATION
ADMINISTRATIVE SUPPORT
UES EVANS
FIELD ENGINEER
*- ASSISTS
RESIDENT ENGINEER
•COORDINATION
TESTING
•FIELD MODIFICATIONS
ENCINA GENERAL MANAGER
UES EVANS
PRINCIPAL-IN-CHARGE
DENNIS O'LEARY
PROJECT ADIVSORTCOMMITTEE
DONALD MARTINSON
RONALD RQHADFOX
CONTRACT ADMINISTRATOR AND
RESIDENT ENGINEER
SECRETARY
INSPECTOR INSPECTOR
CIVIL
— EXPEDITING
— REPORT SUQMITTALS
u- DOCUMENTATION
GRADING
SITE
CONCRETE
DESIGN ENGINEER
BROWN AND CALDWELL
INSPECTOR
ELECTRICAL
MECHANICAL
INSTRU-ENTAT1 ON
FIGURE 1
LOWRY & ASSOCIJUES TABLE 1 (Revised per Negotiations) l/ir>/
ENCINA JOINT POWERS PROJECT
ESTIMATED STAFFING AND COST ANALYSIS
YEAR
1979
o
1980
1981
1982
HOURLY
RATE
$32.00
21.00
14.00
11.00
6.00
17.00
34.00
22.00
15.00
12.00
6.50
18.00
36.00
23.00
16.00
13.00
7.00
19.00
38.00
24.00
17.00
14.00
7.50
20.00
KEY
PIC
RE
FNG
INS
SFC
SI
PIC
RE
FNG
INS
SEC
SI
PIC
RF
FNG
INS
SEC
SI
PIC
RE
ENG
INS
SEC
SI
JAN
$ -
—
——
—
-0-
$ 10
225
173
173
17330
11,625.5
$ 10
173
173
519
173
40
$15,825
$ 10
16
80
--25
10
$2,511.5
FEB
$ 20
200--
_-
30
--
$5,020
$ 10
225
173
173
17340
11,805.5
$ 10
173
173
519
17340
$15,825
$ --
10
80
-«
25
10
$1,987.5
MAR
$ 20
200
—
—30
—$5,020
$ 10
225
173
173
17340
11,805.
$ 10
173
173
519
17340
$15,825
$ --
10
80
--33
10
$2,047.
APR
$ 20
200--
—40
—$5,080
$ 10
200
173
173
173
40
5 11,255.5
$ 10
173
173
519
17340
$15,825
5
MAY
$ 20
225--
—40
—
$5,605
$ 10
200
173
519
17340
15,407.5
$ 10
173
173
519
17340
$15,825
JUN
$ 20
225--__
40
—$5,605
$ 10
200
173
519
17340
15,407.5
$ 10
173
173
519
17340
$15,825
JUL
$ 20
275
—173
174
—
$9,362
$ 10
200
173
519
17340
15,407.5
$ 10
173
173
174
17340
$11,340
AUG
$ 10
275--
173
173
--
$9,036
$ 10
200
173
519
17340
15,407.5
$ 10
173
173
174
17340
$11,340
SEP
$ 10
275
—173
173
—
$9,036
$ 10
200
173
519
17340
15,407.
$ 10
173
173
174
17340
$11,340
OCT
$ 10
275
173
173
173
10
$11,628
$ 10
173
173
519
17340
5 14,813.
$ 10
173
173--
17340
$9,078
NOV
$ 10
275
173
173
17310
$11,628
$ 10
173
173
519
17340
5 14,813.
$ 10
173
173--
17340
$9,078
DEC
$ 10
275
173
173
173
10
$11,628
$ 10
173
173
519
17340
5 14,813.5
$ 10
173
173
--
17340
$9,078
TOTAL PER
YEAR
$ 170
2,700
519
1,038
1,219
30
$ 88,648
$ 120
2,394
2,076
4,844
2,076
470
$167,970
,$ 120
2,076
2,076
3,636
2,076
480
$156,204
$ 10
36
240
- -83
30
$ 6,546.5
Key: PIC - Principal-in-Charge (420 hours)
RE - Resident Engineer (7206 hours)
ENG - Assistant Resident Engineer and
Field Engineer/Inspector (4911 hours)
INS - Inspector (9518 hours)
SEC - Secretary (5454 hours)
SI - Special Inspector (1010 hours)
DIRECT
LABOR COST ^419,368.50
GO
LOWRY & ASSOCIATES
C o January 18, 1979
EMCIMA JOINT POWERS PROJECT
ESTIMATED OTHER DIRECT COSTS
Original Proposal Dated November 16. 1978
Summary of Table 2 estimates
1500 miles/mo, for 9 mos. @ .17 = $ 2,295.00
2500 miles/mo, for 30 mos. @ .17 = 12,750.00
Travel Sub Total $15,045.00
Trailer Rental $525/mo. (30 mos.) = $15,750.00
Utilities for Trailer 730/mo. (30 mos.) = 21,900.00
Office Equipment Rental 100/mo. (30 mos.) = 3,000.00
Equipment Sub Total $40,650.00
Original Proposal - Total Other Direct Cost $55,695.00
Additional Costs Per Negotiations
Moving Charges for Resident Engineer
Transportation Costs
Air Transportation to East Coast
for Expediting Equipment
Assume 4 Contracts - 2 Trips Each
8 trips @ $400 = 3,200.00
« 800.00
4,000.00
11,211.64
Meals and lodging
16 days average @ $50
Automobile Travel
65,950.82 @ .17 =
Surveyors
Materials Testing
Construction Progress Photos
Additional Negotiated Other Direct Cost
A-9
$ 500.00
15,211.64
$ 9,600.00
25,000.00
1,790.00
TOTAL
52,101.64
$107,796.64
EXHIBIT "B"
A. COMPENSATION;
Compensation for services to be provided by Construction
Manager as set forth in Exhibit "A" of this Agreement shall be in
accordance with the methods described in this Exhibit and the speci-
fic amounts listed in Paragraph C, Compensation Schedule, or as
may be later mutually agreed to at the time of authorization.
Compensation for each authorized phase of the work or
Construction Management service shall be on the basis of: (1) firm
fixed-price, (2) cost reimbursement, (3) hourly rate or as may be
later mutually agreed to at the time of authorization:
1. FIRM FIXED-PRICE BASIS:
Compensation for each phase of the work or Construction
Management service authorized on a firm fixed-price basis shall be
as listed in Paragraph C, Compensation Schedule, of this exhibit,
or as may be mutually agreed upon at the time or authorization.
2. COST REIMBURSEMENT BASIS:
Compensation for each phase of the work or Construction
Management authorized on a cost reimbursement basis shall be the
cost reimbursement plus a fixed professional fee, as defined herein.
(a) COST REIMBURSEMENT:
The cost reimbursement portion of the compensation
shall be the sum of direct labor costs, indirect costs
and other direct costs, as herein defined. The cost
reimbursement for each designated engineering service
shall not exceed the cost ceiling listed in the compen-
sation schedule without formally amending this Agree-
ment.
(1) DIRECT LABOR COSTS:
Direct labor costs shall be the total number of
hours worked on the job by each employee times the
regular rate for such employee's labor category.
Direct labor costs for principals, who are defined
as professional engineers assigned to the corporate
staff of Construction Manager, will be based upon the
actual rate of pay for those individuals.
(2) INDIRECT COSTS:
Indirect costs shall be the product of all direct
labor costs multiplied by an overhead rate.
B-l
c
A billing overhead rate of $1.1628 shall be
used for interim reimbursement purposes. 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 the District
a proposed provisional overhead rate or rates for
that period based on the Construction Manager's
actual cost experience during that period, together
with supporting cost data. Negotiation of provisional
overhead rates by the Construction Manager and the
District 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 applicable portions of the Federal Procurement
Regulations, 41 CFR 1-15.4 as in effect on the date of
this Agreement.
The results of each negotiation shall be set forth
in an amendment to 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 establishment of negotiated provisional
overhead rates for any period, Construction Manager
shall be reimbursed at billing overhead rates as
provided in the Agreement, subject to appropriate
adjustment when the negotiated provisional rates for
the period are established. To prevent substantial
over or under payment, and to apply either retro-
actively or prospectively, billing overhead rates
may, at the request of either party, be revised by
mutual agreement. Any such revision of billing over-
head rates shall be set forth in an amendment to
this Agreement.
Any failure by the parties to agree on any rates
negotiated by the parties to this Agreement shall be
used to adjust all interim billings as soon as such
rates are established.
Negotiated provisional overhead rates shall be
subject to review and revision by the cognizant audit
authority 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 cost reimbursement
work under this Agreement shall be the product of
direct labor costs multiplied by the final audited
overhead rate.
B-2
(3) OTHER DIRECT COSTS:
Other direct costs shall be billed at cost and
shall include the following:
a. Services directly applicable to the work
such as computer rental and programming
costs, special consultants, borings, lab-
oratory charges, commercial printing and
binding, and similar costs that are not
applicable to general overhead.
b. Identifiable reproduction costs applicable
to the work such as printing of drawings,
photostating, multilithing, printing and
similar costs.
c. Identifiable communication expenses such as
long distance telephone, telegraph, cable,
express charges, and postage other than
for general correspondence.
d. Subcontracted services.
Costs described above shall be payable up to a cost
ceiling listed in the compensation schedule. In the
event the entire scope of work provided for under a
cost reimbursement engineering service is not com-
pleted within the cost ceiling established for such a
service, Construction Manager shall continue with all
or any part of the work for which an amended cost
ceiling is established, but not otherwise.
(b) FIXED PROFESSIONAL FEE;
The fixed professional fee portion of the compensation
shall be the amount listed in the compensation schedule
and it shall not be increased except in the event there is
an amendment to this Agreement that increases the scope
of work.
3. HOURLY RATE BASIS;
Compensation for each phase of the work or engineering
services authorized on an hourly rate basis shall be the sum of
direct salary costs and direct non-salary costs, as herein defined,
(a) DIRECT SALARY COST;
Direct salary cost shall be the total number of hours
worked on the job by each employee times an hourly billing
rate for such employee's labor category. The hourly
billing rate for each employee category shall be the sum
of: (1) the regular direct labor rate, (2) the indirect
costs rate, and (3) a professional fee rate.
B-3
r*
(b) DIRECT NONSALARY COST:
Direct nonsalary cost shall be actual costs and
shall include the following:
(1) Services directly applicable to the work such
as computer rental and programming costs, special
consultants, borings, laboratory charges, commercial
printing and binding, and similar costs that are
not applicable to general overhead.
(2) Identifiable reproduction costs applicable to
the work, such as printing of drawings, photostating,
multilithing, printing and similar costs.
(3) Identifiable communication expenses such as
long distance telephone, telegraph, cable, express
charges, and postage other than for general corres-
pondence .
(4) Subcontracted services.
Compensation for any Construction Management service on
an hourly rate basis shall not exceed the price ceiling
listed in the compensation schedule for given service,
or if none is shown, shall not exceed the price ceiling
agreed to at the time of authorization of the service,
without approval by the District's Project Officer. In
the event the entire scope of work provided for under an
hourly rate engineering service is not completed within
the cost ceiling established for such service, Construction
Manager shall continue with all or any part of the work for
which an increased cost ceiling is established.
4. LIMITATION ON COST AND TIME;
(a) The estimated cost ceiling (for services authorized
on a cost reimbursement basis) and the price ceiling (for
services authorized on an hourly rate basis) given in
Paragraph C of this Exhibit and the time for completion
given in the authorization will not be exceeded. The
Construction Manager agrees to use his best efforts to
perform the work specified in Article I within the
estimated cost and time of completion. If, at any time,
the Construction Manager has reason to believe that the
estimated cost ceiling or price ceiling will be greater
or substantially less than the ceilings indicated in
Paragraph C, the Construction Manager will notify the
District in writing to that effect. The notification will
state the revised estimated cost ceiling or price ceiling
for performance of the services, and if applicable, the
revised time for completion. Such notification will be
submitted to the District at the earliest possible date and
in no event later than thirty (30) days prior to scheduled
completion of the work.
B-4
/-•s'
(b) The District shall not be obligated to reimburse
the Construction Manager for costs incurred in excess
of the estimated cost ceiling or price ceiling set
forth in Paragraph C. The Construction Manager shall not
be obligated to continue performance under the agreement
or otherwise incur costs in excess of the estimated cost
ceiling or price ceiling set forth in Paragraph C, unless
and until the District shall have notified the Construction
Manager in writing that such estimated cost ceiling or
price ceiling has been increased and shall have specified
in such notice a revised estimated cost ceiling or price
ceiling which shall thereupon constitute the estimated
cost ceiling or price ceiling for performance of this
agreement.
(c) If, after such notification, additional funds are not
allocated by the end of the period scheduled for completion,
or an agreed date substituted therefor, the District will,
upon written request by the Construction Manager, terminate
this agreement pursuant to the provisions of the termination
clause. The termination date shall be the ordinarilly
scheduled completion date or an agreed date substituted
therefor. If the Construction Manager, in the exercise of
his reasonable judgment, estimates that the funds available
will allow him to continue to perform services covered in
this agreement for a period extending beyond such date,
he shall specify the later date in his request, and the
District, at its discretion may terminate this agreement
at that later date.
(d) Unless there is an agreed upon increase in the
scope of work from that outlined in Exhibit "A",
Construction Manager agrees that the maximum cost
ceiling set forth in Paragraph C shall not be exceeded.
(e) It is understood and agreed that time is of the
essence in the performance of this agreement, in that
should the services agreed herein to be performed by
Construction Manager not be completed within the time
set forth herein District would thereby become exposed
to the loss of grants from the State of California and
the United States Government to the extent of eighty-
seven and one-half percent (87^%) of the ultimate cost
of Phase III Construction Project, resulting in con-
sequential damages to District.
It is understood and agreed that the District will
provide timely input and decisions to the Construction
Manager regarding the work outlined in Exhibit "A".
B-5
B. PAYMENT OF COMPENSATION;
Charges determined on the basis of this exhibit shall
be billed monthly to the District and payment in full by the
District shall be made within a reasonable period of time. Brief
monthly progress reports shall be included with the invoices
and shall include a summary of activities related to the progress
of the project for the invoiced period. Monthly invoices shall
contain the following information for each type of compensation:
1. COST REIMBURSEMENT BASIS:
For the cost reimbursement portion of the compensation,
invoices shall include the following itemized by task:
(1) each labor category and the total number of hours
worked by employees in that category, (2) direct labor
rate and costs for each labor category, (3) total indirect
costs, and (4) each general category of other direct
costs. For the fixed professional fee portion of the
compensation, invoices shall include the percent of
the total fixed professional fee to be paid each month
in accordance with the tabulated amounts shown for each
Construction Management service listed in the compensation
schedule.
2. HOURLY RATE BASIS:
Invoices for engineering services authorized on an
hourly rate basis shall include the following itemized by
task: (1) each labor category and the total number of
hours worked by employees in that category, (2) the
hourly billing rate and costs for each labor category,
and (3) each general category of other direct costs.
C. COMPENSATION SCHEDULE;
For each Construction Management service authorized
under this agreement, compensation shall'be in accordance
with the applicable portions of this agreement and the following
schedule:
Basis of Compensation: Cost reimbursement
Estimated Cost Ceiling, inclusive of all
subcontracts and fixed professional fee: $1,167,027.85
Fixed Professional Fee: $170,031.00
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.
B-6
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 $1,167,027.85.
In the event 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.
B-7
EXHIBIT "C
«Ul..j AND REGi'i.WIONS
Title 40—Protection ul Environing'
CHAPTER I—ENVIRONMENT/4
PROTECTION AGENCY
CUDCHAPTER B—GRANTS
|»'BU 653-2)
PAHT 35—STATE AND LOCAL
ASSISTANCE
Subagreements Under Grants for Con-struction ol Treatment Works; TechniolAmendments
C-l
MBQUnttD r»OmiO.NS-— CONSU1.TINO
ACXLIMKNTS
I. General.
3. Responsibility of the engineer.
3. Scop* of work.
4. Change*.
t. Termination.0. Remedies.
7. Payment.8. Project design.
B. Audit; access to records.
10. Price reduction (or defective cent orpricing data.
II. Subcontracts.13. Labor standards.
13. Equal employment opportunity.14. utilization of tmait or minority bu»i-
15. Covenant ft gal rut contingent fee*.16. Oratuitlee.17. Patent*.
18. Copyrights and right* IB data.
1. GSNCNAl.
, (a) The Owner and .the engineer agreethat the following provisions shall apply to
the KPA grant-eligible work to be performed
under this agreement and that such pro*visions shall supersede any conflicting pro-
vision* of this agreement.<b) The work under this agreement Is
funded In part by a grant from the U.S. En-vironmental Protection Agency. Neither the
United States nor the U.S. EnvironmentalProtection Agency (hereinafter, "EPA") Is a
party to this agreement. This agreement
wblch covers grant-eligible work Is subjectto regulation* contained In 40 Crtt 35.036..39.037. and 39939 in effect on the date of
execution of this agreement. A* used tn these
Clausen, the words "the date of execution ofthis agreement" mean the date of executlpn
of this agreement and any subsequent
modification of the trrnvt, compensation or
scope of services pertinent to unperformedwork.
(c) The rights and remedies of the owner
provided for In these clauses are In addition
to any other rights and remedies provided
by law or under this agreement.
2. RcswNsmiLrrr or THE EN GIN La
(a) Th* Engineer shall be responsible for
the protrvtlonal quality, technical accuracy,
timely completion, and the coordination ofall Ucslnn.i. drawings, specification*, reports,
and other services IurnUlied by the Engineer
under this agreement. The Engineer shall,without additional competition, correct or
revive any errors, omissions or otber deficien-
cies in his dcMfc'iu, drawings, specifications,reports and other services.
(b) The Engineer shall perform such pro-
fessional services as may be necessary to ac-complish the work required to be performed
under this agreement. In accordance withthis agreement and applicable EPA require-
ments In effect on the dale of execution of
this agreement.
(c) Approval by the Owner or EPA of
drawings, designs, specification*, reports, and
incidental engineering work or materials fur-
nished bereuoder shall not In any way re-lieve the Engineer of responsibility for the
technical adequacy of his work. Neither theOwner's nor EPA'* review, approval or ac-
ceptance of, nor payment for. any of the serv-
ices shall be construed to operate as a waiverof any rights under this agreement or of any
cause of action arising out of the perform-
ance of (his agreement.
(d) The Engineer shall be and remain li-
able in accordance with applicable law for
all damages to the Owner or EPA caused bythe Engineer's negligent performance of any
of the services furnished under this agree-
ment, except for errors, omissions or othsrdeficiencies to the extent attributable to tbe
Owner. Owner-furnished data or any third
party. The Engineer shall not be responsible
for any time delays in the project caused by
circumstance* beyond the Engineer's control.
Where new orntdvsnced processes, methods or
technology (see 40 CPU 39.908) are recom-mended by the Engineer and are utilized, the
Engineer shall be liable ODly for groM negli-
gence to the extent of sutn utilization.
3. Score or WOHK
The service* to be rendered by the Engineer
shall include all services required to com-
plete the task or Step tn accordance with ap-plicable EPA regulations (40 CFR Pan 39,
Suboart C In effect on the.date of executionof this agreement) to the extent of the scope
of work as denned and set out In the engi-
neering services agreement to wblch theseprovisions are attached.
4. CHANOO
(a) The Owner may. at any time, by writ-
tea order, make changes within the generalscope of this agreement in the services orwork to be performed. If such changes cause
an Increase or decresse la the Engineer'scoat of, or time required (or. performance of
any tervlces under this agreement, whether
or not changed by any order, an equitable
adjustment shall be msde and this agree-ment shall be modified In writing
tngly. Any claim of thtt aagU.ter totmcnt under this clime tiiun b» autrtetl In
writing within 30 days irotn the date of re-ceipt by the Engineer of the notification of
change unlras the Owner grants a further
t>erlod of time before the date of final pay-ment under tfcls agreement.
FEDERAL REGISTER. VCl. 41. NO. 251—WlDNESOAf, DECEMBER
QOPY
ER29, 1976
C-l
c
RULES ..tGULATIONS
o
ilii No service* for which an additional
">jmj>rii«»i,oii will be chanced by the Kngl-
• ••er 3h:Jl bo XuritlMhed without the written
nuUioru*Uon of trie Owner.
(c) In tit* event that there to a modloca-tlon of EPA requirement* rotating to the
M>rvlo*» to be performed under this agree-
ment ntbuecjuent to the date of execution of
I hi*, agreement, th* Increaved or decreasedcoNt of performsnce of the services provided
i or In this agreement shall b* reflected In an
•ipprofiriau modification of this agreement.
S. TC«MIN*TIOM
(a) Tht* agreement may be terminated Inwhole or in part In writing by either party in
the event or substantial failure by th* other
purty to fulfill Its obligations under this
agreement through tio (ault ox th* terminat-
ing party: Smutted, That no such termina-
tion may b* effected unles* th* other partya given (1) not less than ten (10) calendar
<Uy» written notice (delivered by certifiedmail, return receipt requested) of intent to
terminate and (J) an opportunity (or eon-Miltatiou with the terminating party prior
lo termination.
(b) ThU agreement may be terminated Inwhole or In part la writing by th* Owner
for It* convenience: Provided, That such
t ernu nation U for good cause (such a* (orlegal or financial reasons, major changes In
th* work or program requirement*, Initiation
of a new Step) and that th* Engineer 1% given
(I) not less than ten (10) calendar day*written notice (delivered by certified mall,
return receipt requested) of Intent to termi-nate and (2) an opportunity (or consulta-
tion with the terminating party prior to
termination.(ci If termination (or default I* effectedby the Owner, an equitable adjustment in
the prlr* provided for In this agreement shallbo made, but (1) no amount shall be allowed
for Htitirlpated profit on unperformed serv-ice* t.r c.ther work, and (3) any payment due
to the Enjflneer at the time of termination
may t<t adjusted to the extent of any addi-tional coftU occasioned to the Owner by rea-son ii' tlie Engineer'*, default. U termination
for default is effected bj tbe Engineer, or I(termination for convenience I* effected by
the Owner, the equitable adjustment shallInclude a reasonable profit (or service* or
other work performed. Th* equitable adjust-ment for any termination shall provld* (or
payment to th* Engineer (or services ren-
dered nnd expenses Incurred prior to th*lormiuv.ion. in addition to termination set*
!!f must tast? rtawnaWy inc'irW by the. En-gineer relating to commitments which had
become firm prior to th* termination.(d) Upon receipt of a termination actionpursuant to paragraphs (a) or (b) above, th*ftiirtitieer shall (1) promptly discontinue all
MTVI,-^< atfected (unles* the notice direct*<.iriLTWi-.e). end (3) deliver or otherwise make
HvaiiHbi* u> the Owner sll data, drawings,sprcl'ir«tlon.v reports, estimates, summerlm,
.uid such other information and materials a*may have be*n accumulated by the Engineertu performtnx thto agreement, whether rwm-
l>lrleii <>r In process.<<•) t'pon termination pursuant to psra-
i;rn(>;ih (a) or (b) above, the Owner may takeover Hie work and prosecute the same to
completion by agreement with another partyor r.iiiTwli*. Any work taken over by theUwurr for completion will be completed at-
tho o-vncr's rliK. and the Owner wilt holdh.irn.ii-si the Engineer from all clabnn and
dummies drl.ilriR out of improper use of thf>
Ka^ineer'E work.
It) If. utter tcrmtnstioA for failure of thoEngineer lo fulfill contractual obligation*. It
is drtermlned that the* Engineer had not w»filled, the termination chall^he deemud t-»
hnva been eff« >>'-•<• ;. , no convenience of theOwner. lit «.u'a i .•-.-,. adjustment of th*
prlc-o provldwl r.-<- lu . » Agreement shall b*
irtftde as |,rovHi«a l>» ;.ur»grnph (c) of thisclause;
B. Iiieuc
Kxcefit it* m»y be otherwise provided In
this agreement, all citims, counter-claims,dispute* and other matter* In question be-
tween th* Owner and th* Engineer arisingout of or relating to this agreement or the
breach thereof will be decided by arbitrationIf tho parties hereto mutually agree, or In acourt of competent Jurisdiction within th*
btate In which the Owner Is located,
7. PAYMENT
(a) l*uyment shall be mad* In accordancewith the payment schedule Incorporated In
this agreement *s soon as practicable uponsubmission of statement* requesting pay-
ment by the Engineer to Uie Owner. If nosuch payment schedule U Incorporated Inthis agreement, the payment provisions, of
paragraph (b) of this cl*u«* shall apply.(b) Monthly progress payments may be re-
quested by th* Engineer and shall b* mad*
by th* Owner to the Engineer as soon as prac-ticable upon submission of statements re-questing payment by the Engineer to Uie
Owner. When such progress payments aremade, the Owner may withhold up to ten
percent of tu* vouchered amount until sat-isfactory completion by the Engineer of work
and services within a Step called (or underthU agreement. When the Owner determine*
that the work under this agreement or any
specified task hereunder I* substantiallycomplete and that the amount of retained
percentages I* In excess of the amount con-sidered by dim to b* adequate tor the pro-
tection of the Owner, he shall rcleas* to tb»
Engine«r such CXCCMS amount.
(e) Mo payment request mad* pursuant toparagraph (*) or (b) of this elsut* shallexceed the estimated amount and value of
th* work and service* performed by the En-gineer under this agreement, which estl-
mateM shall be prepared by the Engineer and
porting data a* may be required by th*Owner.
(d) Upon satisfactory completion* of th*work performed hereundcr, and prior to finalpayment under this agreement (or such
work, or prior settlement upon terminationof th* agreement, and as a condition prec-
edent thereto, the Engineer shall executeand deliver to the Owner a release of all
claims against the Owner arising under or byvirtu* of this agreement, other than suchclaims, if any, as may b* *peolfieally ex-
empted by the Engineer frotn the operation
of the release in stated amounts to be setforth therein.
B, PKOjrCT DtKICN
(a) In the performance of thin agreement,
th* Engineer shall, to the extent practicable,provide (or maximum us* of structures, ma-chine*, products, materials, construction
method*, and equipment which are readily
available through competitive procurement.or through standard or proven production
techniques, methods, and processes, consist-ent with 40 CFR 35.036-3 and 35.938-13 In
effect on th* date of execution of this agree-ment, except to the extent that advanced
technology may be utilized pursuant to 43OFR 35.D08 In effect on the dnte of executionOf tliIn agreement.
(b) The Engineer shall not. In the per-formance of tho work called for by this
agreement, produce a design or specificationsuch on to require tbe tute of structure*,machines, products, materials, construction
inethod.1. eqiijjgment. or procev.e* which are
•
known by th* Engineer to b* available only
from a sole source, unless such us* ha* tx-en
adequately Ju*tltled In writing by th* Engi-neer.
(c) Th* Engineer shall not. In th* per-(oruiaoc* t-f th* work called (or by thin
agreement, produce a deelgn or specification
which would b* restrictive In violation of
Sec. 204(a)(0) of the Jfoderal Water Pollu-Uon Control Act (PL 03-600). This statuterequires that no specification (or bids or
statement of work shall be written lo sucha manner as to contain proprietary, exclu-
sionary, or discriminatory requirement* outerthan those bw.ed upon performance, unlessauch requirement* or* necessary to test or
demonstrate a specific thing, or to provide
(or neceaaary I merchantability of parts audequipment, or at least two brand named or
trad* name* of comparable quality or utilityare listed and are (oitowed by the. words "orequal." With regard to material*, If a single
material Is specified, the Engineer mu»t beprepared to substantiate th* bad* (or tbeselection of the material.
(d) 'lite Engineer shall report to the Owner
any sul**sourc* or restrictive design or spec-
ification giving the reason or reason* why
It Is considered nereasary to reetrlct thedesign or *pecUlcatlon.
(e) The Engineer shall net knowingly Hper-
Ify or approve tbe performance of work ata facility which U In violation of Clean Air
or Water standard!* and which I* llst*d by theDirector «,( lite EPA Office of Federal Activi-
ties pursuant lo 40 CFR Port 16.
0. Avert; ACCESS TO RBCOSM
(a) The Diglneer shall maintain book*,records, document* and other evidence di-rectly pertinent to performance on EPA
grant work under U>U agreement In acc*>rtt>
ante with generally accepted account!t>i;
principle* and practices consistently spptirg.
and 40 CFR 30.008, 30.80S, and 35.03* •'' lueffect on Uie date of execution of this ai.t-.-e-ment. The Engineer shall also maintain the
financial Information and data u/ied by the
EoGlneor In the preparation or support of
effect on the date ofexecution of this agreement sad a copy of
the cost summary submitted to tb* Owner.• The United State* Environmental Protection
Agency, the Comptroller General cf theUnited State", the United Slate* Departmentof Labor, Owner, and (the State wster pollu-
tion control agency) or any ot their dulyauthorized representative* shall hav* aooexs
to such books, records, document* and otherevidence for the purpose of Inspection, auditand copying. The Engineer wilt provide prop-er facilities for such access aud Inspection.
(b) Th* Engineer agrees to Include p.-vra-Kraplis (a) through (c) of this clause in allhi* contracts and all tier subcontract* di-
rectly related to project performance whichor* In excess of SI0.000.
(c) Audits conducted pursuant to this pio-
vision shall bs In accordance with Rvncruliyaccepted auditing atatidarda and e.«iAbliHheilprocedures and Guideline* of the reviewingor audit agency (les).
(d) The Engineer acree» to the dc^loamc
Of all Information and reports rmull:»i; fromaccess to records pursuant to paragraphs (ft(
and (b) above, to any of the agencies re-ferred to in paragraph (a) above, providedthat the Engineer to afforded the opportunity
for an audit oxlt conference Mid an opix.rlu-ntty to comment and BUbn.lt any supporting
documentation on the pertlnnnt portion* ofUie draft nudlt report and thut the fmiJ
audit report will Include written commentsof rcaKomvblit length. If <u,y. of the Engineer,
(e) Pocords under pivra^r/vphH (a) and (b)above ..hull b» maintained arid nuule
ECEMKEX 2V. s 976
AND REGULATIONS
able during performance on EPA grant work
under tbu agreement and until three yearsfrom date of final EPA grant payment (or the
project. In addition, those record* which re-late to any "Dispute" appeal under an KPA
grant agreement, or litigation, or the aettle-
ment of claim* arising out of such perform-ance. or co*U or Item* to which an audit
«xceptloa bos been taken, ahall be main-lalned and nude available until three yean
after the date of resolution of »uch appeal.litigation, claim or exception.
10. Psicc XlnvcnoN ros Dcrccrrv* COST o»
DAT*
(7V><« clatue it applicable I/ the amount of
thii agreement exceed* tlOOJDOO.)
(a) If the Owner or EPA determine* that
any price, including profit, negotiated In
connection with title agreement or any coatreimbursable under this agreement wo* In-
creased by any significant sums because tteEngineer or any aubeontractor furnlibed In- '
complete or inaccurate coat or pricing d*Uor data not current ae certified In hi* certlfl-
cation of current coat or pricing AM (EPA
Form 6700-41), then auch price or coat or
profit ahall b* reduced accordingly and the
agreement ahall b* modified la writing to re-flect tucb reduction.
(b) Failure- to agree on a reduction aball
be eubject to the Remedies clause of thU
agreement.
(NOTf—Slrttt tfit agreement It sub/eet to
reduction under thit clous* by reason of de-fective cost or pricing data submitted <n eon-
ruction ait* certain subcontract*. tha fngi-nter may ttith to include a alavta in tech
even subcontract requiring tht subcontractor
lo appropriately indemnity tha tnftneer. It
is alto atpeettd ,that any subcontractor tub-ject to tveh indemnification will generally
require tubntantiotly limilar indemntf.cation
tor defective eoit or priring data required to
be submitted by hit lower tier •ubconfrae-
tort.)11. SmcoMnucra
(a) Any subcontractor* and outtlde OMO«
elate* or consultant* required by the Engi-
neer ta connection with the services corered
by tbU agreement will b* limited to menIndividual* or firm* a* w*r» ipeclfleally
Identlfled and agreed to during negotiation*,or a* an tpeciflcally authorized by the Owner
during the performance of thla agreement.
Any tubetltutton* In or addition* to such
subcontractors, associates. or consultant*
will b* subject to the prior appro* al of theOwner.(b) Tht Engineer may not subcontract
•errlces In exceae of thirty percent (or ... —percent. If the Owner and the Engineerhereby agree) of the contract price- to sub-
contractors or consultants without prior
written approval of the Owner.
13. LASOS BT*HD*»D*
To the extent that this agreement Involves
"construction" (a* defined -by the Secretaryof Labor), the Engineer agreea that such
construction work thall be subject to the fol-lowing labor standards provisions, to the
extent applicable:
(a) Davis-Bacon Act (40 0JS.C. 278a-278a-
7):(b) Contract Work Hours and Safety
Standard* Act (40 U.S.C. 327-333) ;
(c) Copeland Antl-Klckback Act (18 UJB.C.
674): and
(d) Executive Order 11240 (Equal Employ-ment Opportunity):
anl Implementing rule*, regulations, and
r-.'vant orders of the Becretary of Labor orEPA: and the Kngln««r further agreea thatt«-t, *f-r»e:n»?>» «h»n tr>clu<1«. and he subject
to the "L»bor Standards Provisions for Fed-
erally AstUUd Construction .Contract*" (EPA
»x<ri,. , ij.J-4) In effect at the time of execu-
tion c.r this agreement.
13 I^JUAL EMPLOYMENT OPTOSTUNITT
In (ut^r J.ince with EPA policy as expressedin 40 CJB 30.480-6, the Engineer agrees that
he will not discriminate against any em-
ployee or applicant for employment becauseof race, religion, color, sex. age or national
origin.
14. OnuzATioM or SMALL AND MINORITYBUSINESS
In accordance with EPA policy a* expressedin 40 CPR 34.930-7, the Engineer agrees that
qualified small business and minority busi-ness enterprises shall have the maximum
practicable opportunity to participate In the
performance of EPA grant-ootUted contracts
and subcontracts.
16. COVENANT AGAINST CONTSNGCNT PCM
The Engineer warrants that no person or
selling agency has bssn employed or retainedto sotted or secure this contract upon an
agreement or understanding for a commis-
sion, percentage, brokerage, or contingentfee, excepting bon* fide employees. For breach
or violation of this warranty the Owner shallhave the right to annul this agreement with-
out liability or in' II* discretion to deduct
from the contract price or consideration, or
otherwise recover, the full amount of auchcommission, percentage, brokerage, or con-
tingent fee.
10. OsATorrm
(a) If It I* found, after notice and hearing.
by the Owner that gratuities (In the form ofentertainment, gift*, or otherwise) were
offered or given by the Engineer, or any agent
or representative of tha Engineer, to any
official, employee or agent of the Owner, of
the State, or of EPA with a view toward se-curing a contract or securing favorable treat-
ment wltb respect to the awarding or amend-ing, or the making of aay determinations
with respect to the performance of this agree-
ment, the Owner may, by written aotte* tothe Engineer, terminate the right of the
Engineer to proceed under this agreement or
may pursue such other right* and remedies
provided by law or under this agreement:
Provided, That the existence of the factsupon which the Owner makes such finding*
shall b* In Issue and may be reviewed In pro-
ceedings pursuant to the Remedies clause of
this agreement.(b) la the event this agreement Is tertnl-
uated as provided In paragraph (a) hereof,tbs Owner shall be entitled (1) to pursuethe same remedies agalntt the Engineer as It
could pursue in the event of a breach of the
contract by the Engineer, and (3) as a pen-alty la addition to any other damages to
which it may be entitled by law, toexemplary damages in an amount (as deter--
mined by the Owner) which !>hel! be not
less than three nor more than ten times the
costs incurred by the Engineer In providing
any such gratultlee to any such officer oremployee.
17. PATENTS
If this agreement involves research, devel-
opmental, experimental, or demonstration
work and any discovery or Invention arlari
or I* developed in the course of or under this
agreement, such Invention or discovery shut!
be subject to the reporting and rlRhts provi-
sions Of Subpart D of 40 CFR Part 30, In
effect on the date ot execution of this agt> -
menu Including Appendix B of -Md Pnrt :<>i.
In such case, the Engineer sht.it report Mi*discovery or invention to EPA directly or
tr.~*u;r •?•.* Ovrasr. and •*»". •Mn«rwl«» «•••«•»•
ply wlib the Owner's responsibilities In uc-
with said Subpart D of 40 O'R
Part 30. Tha Engineer hereby agrw-s that the
disposition of rights to' Inventions nisdc
under this agreement shstl be la accordance
with the terms and conditions of aforemen-
tioned Appendix B. The Engineer shall in-
clude provision* appropriate to effectuate the
purposes of this condition In all subcontracts
Involving research, developmental, experi-mental, or demonstration work.
18. CorTstoMTa AMD RIGHTS IN DATA '
(a) The Engineer agree* that any plans,
drawings, designs, specifications, computer
programs (which are substantially paid forwith EPA grant funds), technical reports,
operating manuals, and other work submittedwith a Step 1 Facilities Plsn or with a Step 9
or Step • grant application or which ars
specified to be delivered under thin agree-ment or which are developed or produ :*d itnd
paid for under this agreement (referred to
In this clause a* "Subject Data") are sub-ject to the right* In the United State*, as set
forth in Subpart D of 40 CPR Part 30 and In
Appendix O to 40CFR Part 30. lo effect on the
date of execution of thU agreement. Includ-
ing the right to use, dupllcete and disclose,
such Subject Data, in whole or In part, In
any manner for any purpose whatsoever, andhave others do so. For purposes of thl* arti-
cle, "grantee" a* used In said Appendix Oshall refer to the Engineer. If the material Is
eopyrlghtable, the Engineer may copyright
such, as permitted by said Append) i C, andsubjset to tha rights la the Government an
set forth In Appendix C, but the Owner end
the Federal Government reserve a royalty-free, nonexclusive, and Irrevocable licence to
reproduce, pubtleh and u»e such material*.
In whole or In part, and to authorize othersto do so. Tha Engineer shall Include provi-
sions appropriate to effectuate the purpone
of thl* condition In all subcontract* expectsd
to produce Cbpvri*.hubl* Subject Data.
(b) All such Bubleot Duta furnished bv the
Engineer purnuant to this agreement areinstrument* of hi* services In respect of the
protect. It is 'understood that the Engineerdoes not represent euch Subject Data to be
suitable for reuse on any other profit or for
any other purpose. Any reuse by the Ownur
without specific written verification or adap-
tation by the Engineer wilt be at the risk ofthe Owner and without liability to the Engi-
neer. Any such verification or adaptationwill entitle tha Engineer to further compen-
sation at rates to be agreed upon by the
Owner and tha Engineer.
FEDEKAt REGISTER, VOl. 41, NO. 251—WfDNESDAV. DECEMBER 2», 1976
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RESOLUTION NO. 5705
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING AND AGREEING TO THE NINTH SUPPLEMENT
TO BASIC AGREEMENT TO PROVIDE CONSTRUCTION MANAGEMENT SER-
VICES FOR PHASE III BETWEEN THE CITY OF CARLSBAD AND VISTA
SANITATION DISTRICT, BUENA SANITATION DISTRICT, SAN MARCOS
COUNTY WATER DISTRICT, LEUCADIA COUNTY WATER DISTRICT AND
ENCINITAS SANITARY DISTRICT, AND AUTHORIZING THE MAYOR TO
EXECUTE SAID SUPPLEMENT ON BEHALF OF THE CITY OF CARLSBAD
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 the Ninth
Supplement to Basic Agreement to Provide Construction Management Services for
Phase III, 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 the Ninth Supplement to
Basic Agreement to Provide Construction Management Services for Phase III.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Carlsbad
at a regular meeting held the 6th day of March , 1979, by the follow-
ing vote, to wit:
AYES: Councilmen Packard, Skotnicki, Anear, Lewis and
Councilwoman Casler
NOES: None
ABSENT: None
RONALD C. PACKARD, MAYOR
ATTEST:
Jjjt&^l^xl
LETHA L. RAUTENKRANZ, CITY CLERK
(SEAL)
NINTH SUPPLEMENT TO BASIC AGREEMENT
TO PROVIDE CONSTRUCTION MANAGEMENT
SERVICES FOR PHASE III
This Ninth Supplement to Basic Agreement is made and
entered into as of the day of __, 1979,
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 CARLSBAD ("Carlsbad"), a municioal corporation;
BUENA SANITATION DISTRICT ("Buena"), a county sanitation
district, whose governing board is the Board of Super-
visors of San Diego County;
SAN MARCOS COUNTY WATER DISTRICT ("San Marcos"), a county
water district; , . . .
LEUCADIA COUNTY WATER DISTRICT (."Leucadia") , a county
water district; and
ENCINITAS SANITARY DISTRICT ("Encinitas"), a sanitary
district.
RECITALS
WHEREAS, the aforesaid public agencies have entered
into a joint powers agreement, pursuant to Chanter 5 of Division
7 of Title I of the Government Code for the joint exercise of
powers relating to the acquisition, construction, operation and
maintenance of facilities for the transmission, treatment, and
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disposal of sewage, which facilities comprise a single system
of sanitation works and includes expansion of such facilities by
virtue of a project commonly known as Phase III enlargement of
and upgrading of the Encina Water Pollution Control Facility;
and
WHEREAS, engineering design for the aforesaid enlargement
and upgrading is presently in progress; and
WHEREAS, said enlargement and upgrading is presently in
progress; and
WHEREAS, said enlargement and upgrading will require
construction contracts having substantial monetary value and will
require supervision, coordination, and management; and
WHEREAS, it is in the best interests of all the oublic
agencies which are a party hereto that the services of a con-
struction manager be provided for the Phase III enlargement and
upgrading; and
WHEREAS, at a regular meeting of the Joint Advisory
Committee held on January 17 , 1979, a motion was duly made,
seconded and unanimously adopted that Vista Sanitation District
be authorized to enter into the agreement attached hereto marked
Exhibit "A"; and
WHEREAS, the said proposed contract attached hereto marked
Exhibit "A" 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
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"TSSii
WHEREAS, the parties to the aforesaid Joint Powers
Agreement are receiving a grant from the United States
Environmental Protection Agency for a substantial oortion of the
said Phase III enlargement and upgrading; and
WHEREAS, by a duly authorized and executed supplemental
agreement to the aforesaid Joint Powers Agreement the Vista
Sanitation District has been appointed and is presently acting
as administrator of the Phase III enlargement and upgrading; and
WHEREAS, said Vista Sanitation District reauires the
approval of all parties to the aforesaid Joint Powers Agreement
in order to enter into a contract for construction management
authority for said Phase III enlargement and upgrading.
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 a
contract 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; That the parties hereto agree that any costs
required for construction management services by the contract
described in Section 1 above which.are in excess of the grant
to be received by the parties hereto from the United States
Environmental Protection Agency for Phase III enlargement and
upgrading shall be shared in the same proportion as provided in
Section 4 of the Seventh Supplement to the Basic Agreement for
Engineering Services.
Section 3; This agreement may be executed in counterparts,
and upon execution thereof by all of the parties set forth on Page
1 hereof, each counterpart shall be deemed an original.
IN WITNESS WHEREOF, each party hereto has caused this
Ninth Supplement to Basic Agreement to be signed by its respective
officials heretofore duly authorized by the legislative bodies
thereof.
VISTA SANITATION DISTRICT
By: \
Approved by Resolution
No. on
Approved by Resolution
No. 5705 on March 6, 1979
Approved by Resolution
No. on
Approved by Roll Call
Vote on
Approved by Resolution
No. , on
Chairman
CITY OF
By:
LSBAD
Mayor
BUENA SANITATION DISTRICT
By;
Clerk, Board of Supervisor
SAN MARCOS COUNTY WATER DISTRICT
Vice President
By:
Secretary
LEUCADIA COUNTY WATER DISTRICT
By:
By:
President
Secretary
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Approved by Resolution
No. on
ENCINITAS SANITARY DISTRICT
By;
President
By:
Secretary
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