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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 C-3 1 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. 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 -1- 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 -2- "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 -4- Approved by Resolution No. on ENCINITAS SANITARY DISTRICT By; President By: Secretary -5-