HomeMy WebLinkAboutPulice Construction Inc and Pentair Flow Technologies LLC dba Fairbanks Nijhuis; 2020-10-27;CITY ATTORNEY (DATE)
PENTAIR FLOW TECHNOLOGIES, LLC
dba FAIRBANKS NIJ UIS
Signature:
Printed Name: 0 1/4— :3 gee., CCP
FIRST AMENDMENT TO AGREEMENT DATED OCTOBER 27, 2020
This First Amendment ("Amendment") modifies that certain written Agreement
("Agreement") entered into on October 27, 2020, by and between the City of Carlsbad, Pulice
Construction, Inc. and Pentair Flow Technologies, LLC dba Fairbanks Nijhuis (collectively, the
"Parties"). For good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Parties agree to amend the Agreement as follows:
The last sentence of Section 2.1 of the Agreement is deleted in its entirety and replaced
with the following sentence: "The Prototype Impellers shall be delivered to the New Station no
later than May 31, 2021."
In all other respects, the Agreement remains unchanged and in full force and effect.
This Am9xlment may be signed by the Parties in multiple counterparts, all of which shall
be taken together* a single document. A facsimile, scanned or electronic signature constitutes
an original and all!evidentiary objections to same other than for authenticity of signature are
waived.
THE CITY OF ARI_SBAD
Signature: , I
Printed Name:' Sedit Chadwick
Title: City Manager
Date: 3 t422
PULICE CON TRI) C.
Signature:
Printed Name:
Title: ectIt.. itit,A)1.417-TOZG OWCEQ
Date: 01- /-)_07-1
APPROVED AS TO FORM:
-N e7 fiezz eit„ 3/2/2020
Title:
Date: V2 7 /2 1
AGREEMENT
This Agreement ("Agreement") is entered into on October 27, 2020 ("Effective Date"), by and
between the City of Carlsbad ("City"), Pulice Construction, Inc. (''Pulice") and Pentair Flow
Technologies, LLC dba Fairbanks Nijhuis ("Pentair"). In this Agreement, City, Pulice and Pentair
may sometimes be refen·ed to individually as a "Party,, and collectively as the "Parties."
RECITALS
1. This Agreement relates to the public work of improvement known as the Agua Hedionda
Sewer Lift Station project in Carlsbad, California ("Project"). The Project consists of the
construction of a new sewer lift station ("New Station"), demolition of an existing lift station and
related work. The New Station contains four new "lift pumps" and four new "force main pumps."
2. The City of Carlsbad is the Project contracting agency.
3. In 2015, City entered into a wtitten prime contract with Pulice for the construction of the
Project, Contract No. PWS 13-40UTIL ("Contract").
4. Subsequently, on January 21, 2016, Pulice signed a written purchase order (PA-15), as may
have been amended ("Purchase Order"), with Pentair for the fabrication and delivery of the lift
pwnps and force main pumps, the provisions of which remain in effect. The Parties agree that the
limitation of liability and warranty provisions contained in the Purchase Order are applicable as
against both the City and Pulice with respect to this Agreement.
5. During the Project, the City issued to Pulice mutual and unilateral Contract Change Orders
(CCO's) 001 -016.
6. During commissioning of the New Station, the lift pwnps experienced what has been
referred to as capacity drift (the "Capacity Drift"). During testing and investigation oftbe Capacity
Drift, "rag balls" were discovered. The Parties have disputed and continue to dispute the cause of
and responsibility for the Capacity Drift and "rag balls." For the avoidance of doubt, this
Agreement is not a modification of the Purchase Order by which Pentair's equipment was
purchased; Pentair does not guarantee that no rag balls will occur in the system, which rag balls
Pentair maintains are not caused by its equipment. As a result of this dispute, the City has neither
issued a completion certificate under Section O 1662 of the Project specifications nor a Notice of
Completion under Section 6-8 of the Contract General Provisions.
7. On or about January 21, 2020, Pulice filed and served a lawsuit for breach of contract
against the City entitled Pulice Construction, Inc. v. City of Carlsbad, San Diego Superior Comt
Case No. 37-2020-00004500-CU-BC-NC ("Action"). The City filed a cross-action for breach of
contract, breach of express warranty, breach of impl1ed WatTanty, and negligence ("Cross-
Action").
8. Pentair has recently developed a new impeller .that it believes may address the Capacity
Drift at the lift pumps ("New Impeller"). Info1mation about the New Impeller was the subject of
00091s30 ,Page 1 of 17
Pulice Submittal No. 11304-011-003 (588.2) and Brown and Caldwell and Arcadis submittal
responses dated July 15, 2020 ("Submittal").
9. Subject to the terms and conditions of this Agreement, the Parties wish to pursue the
substitution of a New Impeller for each of the four ( 4) original impellers in the lift pumps as a
potential solution to the Capacity Drift.
· TERMS AND CONDITIONS
The recitals set forth above are incorporated into the te1ms and conditions of this Agreej.llent. For
good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties
agree as follows;
Section 1. Rel~ase of Retention
1.1 Through the Effective Date, the City has retained five percent (5%) retention from
Pulice, cunently totaling $2,271,228.63 (''Retenti~n Withheld to Date"). Within 1 City working
day of the full signing of this Agreement by all Patties, the entry of the Stay of the Action and
Cross-Action under Section 7.1, and Pulice's delivery to the City of consent of surety to the release
of all retention to Pulice, the City shall authorize US Bank to fully release to Pulice the Retention
Withheld to Date. The City's authorization to release the Retention Withheld to Date does not
waive any City rights or defenses against Pulice or Pentair.
Section 2. Fabrication, Delivery and Installation of Prototype Impellers
2.1 Upon immediate notification by Pulice to Pentair that the City has released
Retention Withheld to Date, at no cost to City or Pulice, Pentair will proceed to fabricate and
deliver two New Impellers ("Prototype Impellers") to the New Station, along with modified front
heads and new wear rings in conformity with the Submittal. Pentair will implement rapid
prototype procurement methods for the production of the Prototype hnpellers. The Prototype
Impellers shall be delivered to the New Station no later than 18 weeks from receipt by Pentair of
email notice from Pulice that the City authorized the release of the Retention Withheld to Date,
2.2 Upon delivery of the two Prototype Impellers to the New Station, Pulice will within
2 weeks initiate and provide all labor and equipment necessary to replace in two of the lift pumps
of the City's choice, the original impellers with the two Prototype Impellers. The spools and
suction elbows that contain straightening vanes shall remain in place.
2.3 Pentair will provide a factory representative at the job site to facilitate Pulice's
replacement of the original impellers in two of the lift pumps with the Prototype Impellers.
Section 3. City Testing/Decision Regarding Prototype Impellers and Vanes
3.1 The City shall have up to thirty (30) calendar days after Pulice completes installation of
both Prototype Impellers to perform operations and Capacity Drift testing for the sole
purpose of dete1mining whether the Prototype Impellers resolve the Capacity Drift to
00091s30 1Page 2 of 1.7
( (
the City's satisfaction. The City shall perform these tests with all existing straightening
vanes remaining in place. After completion of this testing, the City shall determine, in
its sole discretion, which of the following shall occur, and shall so notify Pulice:
3 .1.1 The City accepts the Prototype Impellers as installed. Upon this City
notification, the Parties shall proceed pursuant to Sections 3.9 and 4, below;
or
3.1.2 The City rejects the Prototype Impellers in total. Upon this City notification,
Pulice shall proceed pursuant to Section 3.3 below, ho fotther performance
under this Agreement is due by any Party, and the Releases shall have no
force or effect; or
3 .1 .3 The City wishes to perform testing without the existing straightening vanes
in the spool or suction elbow. Upon this City notification, within two weeks,
Pulice will provide the labor, material and equipment necessary to remove the
existing spools and suction elbows that contain the straightening vanes in the
piping leading to the lift pumps in which the Prototype Impellers were
installed, and install in their place spools and suction elbows without
straightening vanes for additional Capacity Drift testing by City for the sole
purpose of determining whether the Prototype Impellers with spools and
suction elbows that do not contain straightening vanes resolve the Capacity
Drift to the City's satisfaction. This testing of the Prototype Impellers with
the spools and suction elbows that do not contain the straightening vanes shall
be completed within thirty (30) calendar days.
3.2 Upon completion of the testing described in paragraph 3.1.3, the City shall determine,
in its sole discretion, which of the following shall occur, and shall so notify Pulice:
3.2.1 The City accepts the Prototype Impellers with the straightening vanes
remaining in place. Upon this City notification, Pulice will reinstall the
original spools and suction elbows that contain the straightening vanes in both
lift pumps in which the Prototype Impellers were installed, and the Parties
shall proceed pursuant to Sections 3.9 and 4, below; or
3.2.2 The City accepts the Prototype Impellers without the straightening vanes in
the spools or suction elbows. Upon this City notification, the Pat1ies shall
proceed pursuant to Sections 3.9 and 4, below; or
3.2.3 The City rejects the Prototype Impellers in total. Upon this City notification,
the Patties shall proceed pursuant to Section 3.3 below, no further
performance under this Agreement is due by any Patty, and the Releases shall
have no force or effect.
3.3 In any instance where the City rejects the Prototype Impellers in total under this section,
the Prototype Impellers shall be removed from the lift pumps in which they were
00091s30 ,Page 3 of 17
installed and returned to Pentair. Pulice will provide the labor, materials and equipment
to remove the Prototype Impellers from the two lift pumps in which they were installed
and reinstall the original impellers, and the spools and suction elbows with the original
straightening vane design, in their place. Pentair will arrange for the shipment of the
Prototype Impellers from the job site to Pentair's facility. Further, Pulice shall be
entitled to pursue recovery from the City of any costs inctmed by Pulice with respect to
the performance of its obligations under Sections 2 and 3. In order to track Pulice's
costs, Pulice shall submit Daily Extra Work Reports to the City pursuant to Section 3 of
the General provisions of the Contract. Pentair shall not be entitled to pursue recovery
from the City or Pulice of any costs incurred by Pentair with respect to the perfo1mance
ofits obligations under Sections 2 and 3.
3 .4 If the City accepts the Prototype Impellers ( either with straightening vanes remaining or
removed), Pulice assumes all costs with respect to the performance of its obligations
under Sections 2, 3 and 4.
3.5 Pulice and Pentair shall coordinate their work with the City. They shall not access or
enter the site or perform any work without prior authorization from the City. They may
not rely upon the existing emergency standby pumps to perform the work under this
Agreement. The City shall isolate and tum off the two lift pumps in which the Prototype
Impellers will be installed in a manner that enables Pulice to timely install the Prototype
Impellers in accordance with this Agreement. During the performance of and upon
completion of the work, Pulice shall clean up any trash or debris generated by it. Pulice
shall perform touch-up of any paint damaged by it during the perfo1mance of its work
under this Agreement.
3.6 Pentair will provide a factory representative at the job site to facilitate Pulice's
installation of the Prototype Impellers and, if required, the other New Impellers. The
Pentair representatives and engineers will reasonably cooperate with the City and
respond to questions, installation and City Capacity Drift testing issues with City
representatives, including City consulting engineers.
3.7 All work to be performed by Pulice pursuant to this Agreement shall be perfo1med
consistent with the professional skill and care ordinarily provided by general contractors
in the San Diego Region under the same or similar circumstances. All work to be
perfmmed by Pentair pursuant to this Agreement shall be perfo1med consistent with the
professional skill and care ordinarily provided by pump manufacturers under the same
or similar circumstances.
3 .8 Pulice and Pentair are entitled to observe all testing perfo1med by the City. To the extent
any of the Parties prepare reports of observations or tests, thosereports shall be provided
to all of the Parties.
3.9 If the City accepts the Prototype Impellers (either with straightening vanes remaining or
removed), the City and Pulice shall both within ten (10) business days sign the Final
Contract Modification attached as Exhibit A to this Agreement ("Final Contract
00091s30 1Page 4 of 17
Section 4.
( (
Modification"). Within 10 days of signing the Final Contract Modification, Pulice shall
make final payment to Pentair of $68,357.98 due pursuant to its purchase order with
Pulice ("Purchase Order"). Pulice shall be entitled to immediately submit an invoice to
the City for full payment of the $1,600,000.00 set forth in the Final Contract
Modification, and the City shall pay that full amount to Pulice within 30 days of its
receipt of Pulice' s invoice. The City's breach of any of its obligations under this Section
3.9 only shall entitle Pulice to immediately file a legal action in San Diego Superior
Court for the recovery of the amount due, interest and costs due to such breach. Pulice
shall have no obligation to, and the City hereby waives any requirement to, comply with
any contract and/or statutory prerequisites to the filing of such action, including but not
limited to Government Code section 900 et seq. The City's payment of the $1,600,000
shall represent full and final payment of any and all Project claims and entitlements
under the Contract, subject to the release reservations set forth in Section 6.
Pulice/Pentair's Obligations Regarding Fabrication, Delivery and Installation
of Two Additional New Impellers
4.1 Upon the City's payment of the $1,600,000 as set forth in subsection 3.9 above:
4.1.1 Pulice shall notify Pentair to fabricate two additional New Impellers
("Additional New Impellers") along with modified front heads and new wear rings and deliver
them to the New Station. Upon this notification, Pentair, at no cost to City or Pulice, will fabricate
the Additional New hnpellers along with modified front heads and new wear rings and deliver
them to the New Station. The two Additional New Impellers along with modified front heads and
new wear rings shall be delivered to the New Station no later than 12 weeks after receipt by Pentair
of email notice from Pulice that the City's payment of the $1,600,000 as set fmth in subsection 3.9
above has been made. Pentair shall provide a factory certification that the two Additional New
Impellers along with modified front heads and new wear rings meet material and design uniformity
with the previously installed Prototype Impellers, modified front heads and new wear rings.
4.1.2 At no cost to the City, Pulice shall provide all labor, material and equipment
necessary to remove the original impellers in the remaining two lift pumps and install the two
Additional New hnpellers along with modified front heads and new wear rings within two weeks
of their delivery as described in Section 4.1.1. If the City accepted the Prototype Impellers with
the spools and suction elbows that do not contain straightening vanes, at no additional costs Pulice
shall furnish and install spools and suction elbows that do not contain straightening vanes in the
piping leading to each of the four lift pumps. Pulice is allowed to install any spools and/or suction
elbows that do not contain straightening vanes that already exist as surplus materials.
4.1.3 The City shall observe (including the right of physical inspection and
measurement) the installation of the Additional New Impellers and modified front heads and new
wear rings to verify they are properly fabricated and installed consist~nt with the Prototype
Impellers and Submittal. If the fabrication or installation of the Additional New Impellers and
modified front heads and new wear rings was not properly performed or if within an initial two-
week startup period, the Additional New Impellers, modified front head or new wear rings
completely fail to operate, it will be Pulice's responsibility to provide the labor and equipment to
00091s30 1Page 5 of 17
correct any improper installation and it will be Pentair's responsibility to provide the labor and
equipment to c01Tect any improper fabrication.
4.1.4 Pentair will provide a facto1y representative at the job site to facilitate
Pulice' s replacement of the original impellers in the remaining two lift pumps with the Additional
New Impellers. Pentair representatives and engineers will reasonably cooperate with the City and
respond to questions, installation and City Capacity Drift testing issues with City representatives,
including City consulting engineers.
4.1.5 The sole remedy for any Party's breach of any of its obligations under
Sections 4.1. l through 4.1.3 shall be to file a legal action in San Diego Superior Court against the
breaching Party for the recovery of damages and costs due to such breach. All provisions of this
Agreement shall remain in full force and effect despite any breach of an obligation under Sections
4.1.1 through4.l.3.
Section 5. Additional Rights and Obligations Upon Payment of the $1,600,000
5.1 Upon the City's payment of the $1,600,000 as set fotth in subsection 3.9 above:
5.1. l The provisions of Section 6, below, shall immediately become effective.
5.1.2 The City and Pulice shall immediately file a request for dismissal with
prejudice of the Action and Cross-Action. Such dismissal shall not operate
as a retraxit as to: (i) any of the Reserved Matters; or (ii) any Party's claims
and defenses under Section 4.1.5.
5.1.3 The City shall assume the defense of, pay all expenses of defense, and ·
indemnify and hold hannless Pulice, Pentair and all of their related entities,
representatives, agents, attorneys, insurers, sureties, shareholders, partners,
employees, predecessors, successors and/or assigns from all claims, loss,
damage, injury and liability of every kind, nature and description, directly
or indirectly arising from or in connection with Capacity Drift and/or rag
balls, that is asserted by any person, fitm and/or public or private entity.
This provision does not apply to any demands, liens, Stop Payment claims,
back charges, labor claims, or any other claims for compensation by any
person, firm or entity that provided labor, material, equipment or services
to Pulice or any lower tier of Pulice on the Project, including in connection
with Capacity Drift and/or rag balls.
Pulice shall assume the defense of, pay all expenses of defense, and
indemnify and hold harmless the City and Pentair, and their officers and
employees, from all claims, loss, damage, injury and liability of every kind,
nature and description, directly or indirectly arising from or in connection
with any demands, liens, Stop Payment claims, back charges, labor claims,
or any other claims ("Claims") for compensation by any person; firm or
entity that provided labor, material, equipment or services to Pulice or any
00091s30 1Page 6 of 17
Section 6.
( (
lower tier of Pulice on the Project, including in connection with Capacity
Drift and/or rag balls. With respect to the City, this defense, indemnity and
hold ha1mless obligation does not apply to any and all Claims or lawsuits
by Nada Pacific Corporation and/or any lower tiers of Nada Pacific
Corporation.
Releases and Reserved Rights
6.1 The Patties release and discharge each other and all of their related entities,
representatives, agents, attorneys, insurers, sureties, shareholders, partners, employees,
predecessors, successors and/or assigns from and against all claims, causes of action, damages,
losses, assertions, defenses and/or liabilittes of every kind whatsoever (including but not limited
to claims for breach of contract, unjust enrichment, fraud, negligence, express and implied
warranty, breach of statutory duties, subcontractor, or material supplier claims, subcontractor and
material suppliers pass-through claims, compensatory damages, lost profits, impaired bonding
capacity, delay damages, liquidated damages, interest, penalties of any kind, punitive damages,
specific performance, injunctive or declaratory relief, costs, attorneys' fees and/or expett fees),
whether known or unknown, asserted or unasserted, manifested or not, that the Parties or any of
their related entities, representatives, agents, insurers, sureties, shareholders, partners, employees,
predecessors, creditors, successors and/or assigns, assert or could assert against each other based
upon, relating to, arising out of or in connection with the entire Project, including, but not limited
to, the Contract, Action, Cross-Action and/or Purchase Order ("Releases"). As used in this
subsection 6.1, "related entities" for the City include the City of Vista and Encina Wastewater
Authority.
The Releases do not include, and the City and Pulice expressly reserve, all claims and
defenses that either has ·asse1ted or could asse1t against each other or any third party, specifically
including but not limited to the City of Vista, with respect to: (1) the lawsuit known as Nada
Pacific Corporation v. Pulice Construction, Inc., et al., San Diego Superior Court Case No. 37-
2019-00020643-CU-BC-NC (Microtunneling Claims); (2) the Emergency Standby Pump-Buena
Creek Pump Station project; (3) any outstanding wananty items and (4) any liability or obligation
created by this Agreement ("Reserved Matters").
With respect to the Releases, the Parties expressly waive any and all rights they may have
under the provisions of California Civil Code section 1542, which states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HA VE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
Thus, with full knowledge of the provisions of Section 1542, and for the purpose of
implementing full and complete release of the Releases, the Patties acknowledge this Agreement
is intended to include in its effect all of the claims that were or could have been raised, even those
00091s30 1Page 7 of 17
that the Parties did not know of or suspect to exist in its/their favor at the time of execution of this
Agreement and that this Agreement contemplates extinguishment of all such unreserved Project
claims that were or could have been raised, even those that would have materially affected the
Parties' decision to enter into this Agreement.
Section 7. Stay of Action and Tolling
7.1 Upon full signing ofthls Agreement, the Parties shall stay the Action and Cross-Actipn
in their entirety, including any outstanding issued third-pruty subpoenas. The Parties
will immediately prepru·e and file with the court stipulations or other documents
necessary to establish a court-approved stay or seek other method of case suspension.
The stay is a prerequisite of the release of Retention Withheld to Date under Section 1.
The stay shall be lifted only if and when the City rejects the Prototype Impellers in total
as described in Sections 3.1.2 or 3.2.3, or if this Agreement is terminated pursuant to
Section 8.
7.2 All contractual and statutory limitations periods and notice requirements associated
with the Action and/or Cross-Action shall be tolled, suspended and otherwise held in
abeyance from the date of this Agreement is fully signed, to the date (ifit were to occur)
of the lifting of the stay pursuant to Section 7.1. ·
Section 8. Termination
If any Party breaches this Agreement by failing to meet the time periods/deadlines set forth in
Sections 2.1 or 2.2, the non-breaching Party shall not be entitled to moneta1y damages for such
breach and its sole remedy shall be its option to terminate this Agreement. In the event of such
termination or if the City rejects the Prototype Impellers in total as described in Sections 3 .1.2 or
3.2.3, the Pai1ies shall be put in the position they were in had the Agreement not been entered into
in the first place, except that Pulice shall be entitled to keep the Retention Withheld_ to Date paid
under Section 1.1.
Section 9. Admissibility
9.1 · Evidence ohhis Agreement and/or its performance is inadmissible in any action or
proceeding, except such evidence is admissible for purposes of enforcement of this Agreement.
Section 10. Interpretation of Agreement
10.1 Thls Agreement shall not be construed or interpreted for or against any Party
because that Party drafted or caused the Party's attorney to draft any of its provisions.
Section 11. Opportunity for Advice of Attorneys
11.1 Each Party represents, wanants and agrees that in executing this Agreement, it does
so with full knowledge of any and all rights which it may have with respect to the other Party and
that each Party has received, or had the opportunity to receive, independent legal advice from such
00091s30 1Page 8 of 17
(
Party's attorneys with respect to the facts involved in the controversy compromised by this
Agreement and with regard to such Party's rights and asserted rights arising out of such facts.
Section 12. Further Acts and Documents
12.1 The Parties agree to perform such further acts and to execute and deliver such
further documents as may be reasonably necessary or appropriate to carry out the intent or
provisions of this Agreement.
Section 13. References
13 .1 If the City executes the Final Contract Modification, and thereafter any City
representative receives a Project reference request from a third party or public agency, the City
representative shall direct such request to the Engineering Manager, Constrnction Management &
Inspection, Public Works Branch. The Engineering Manager, or delegated representative, shall
represent that Pulice and Pentair responsibly constrncted and completed the Project, and that any
Project disputes regarding the New Pump Station or lift pump constrnction were amicably
resolved. The City will notify any City representative who could receive such a request of this
clause.
Section 14. Entire Agreement
14.1 This Agreement constitutes the entire agreement between the Parties regarding the
specific subject matter set forth in this Agreement.
Section 15. Modification
15.1 No modification of this Agreement shall be valid unless agreed to in writing by the
Parties.
Section 16. Agency Approval
16.1 The City represents that it has obtained final approval to enter into this Agreement
from the Carlsbad City Council.
Section 17. Execution in Counterparts
17.1 This Agreement may be signed by the Parties in multiple counterpai1s, all of which
shall be taken together as a single document. A facsimile, scanned or electronic signature constitutes
an original and all evidentiaiy objections to same other than for authenticity of signature ai·e waived.
The Parties have executed and delivered this Agreement consisting of 10 pages and 1 exhibit.
00091s30 1Page 9 of 17
THE CITY OF CARLSBAD PULICE CONSTRUCTION, INC.
I
Signature: __________ _ Signature: -----y?:ff!}.~. ----
Printed Name: Printed Name: Victor Jimenez ---------------------
Title: Title: Chief Operating Officer -------------
Date: Date: 10-26-2020 -------------
APPROVED AS TO FORM:
CITY ATTORNEY (DATE)
PENT AIR FLOW TECHNOLOGIES, LLC dba
FAIRBANKS NDHUIS ::§)
Signature: ~ <2,
Printed Name: Christopher Heacock
Title: Flow & Infrastructure BU Leader
Date: October 29, 2020
00091s30 1Page 10 of 17
(
APPROVED AS TO FORM:
PENT AlR FLOW TECHNOLOGIES , LLC dba
FAIRBANKS NIIBUIS
Signature: -------~--
Printed Name: ---------
· Title: ------------
Date: ------------
PULICE CONSTRUCTION, INC.
Signature:
Printed Name: ----------
Title: -------------
Date: -------------
00091 g30 ,Page 10 of 17
EXHIBIT A
00091s30 1Page 11 of 17
( (
CITY OF CARLSBAD
CONTRACT CHANGE ORDER TRANSMITTAL..,. CCO NO. 17
Project: PWS13-40UTIL Agua Hedionda Sewer Lift Station, Vista/Carlsbad
Interceptor Sewer Reaches VC11B-VC15, and Recycled Water Line
Project
Date Routed: Initials:
Executive Summary:
CM&I -Contract Administrator
CM&I -Engineering Manager
Public Works Division Head
Deputy City Manager, Public Works
Finance Director
City Attorney
City Manager/Mayor
City Clerk (image & email copy of executed CCO to
CM&I)
CM&I
On May 15, 2015, the City Council of the City of Carlsbad adopted Resolution No. 201 S~
124 and the Board of Directors of the Carlsbad Municipal Water District adopted
Resolution No. 1522 to award a Contract in the amount of $44,195,300 to Pulice
Construction, Inc. for the construction of the Agua Hedionda Sewer Lift Station,
Vista/Carlsbad Interceptor Sewer Reaches VC11B•VC15, and Recycled Water Line
Project, Project Nos. 3492, 3886 and 3949.
Resolution No. 2015·124 authorized the City Manager to approve construction change
orders up to an amount not to exceed $3,535,624.
Cost Accounting Summary:
00091s30 ,Page 12 of 17
Reasons for changes:
Item 1: Execution of the subject change order incorporates all applicable terms and
conditions of the settlement agreement between the City of Carlsbad, Pulice
Construction, Inc., and Pentair Flow Technologies, LLC dba Fairbanks Nijhuis .
(Settlement Agreement) into the Contract, including, but not limited to the
following additional terms consistent with the Settlement Agreement.
Additional Terms:
Item 1a: Time for completion of all work under the Contract shall be
extended to October 30, 2019.
Item 1 b: The City accepts the project as complete on October 30, 2019,
subject to the Microtunneling Claims, as defined in the Settlement Agreement.
Item 1 c: The Pulice warranty periods for all warranties required by the
Contract begin on October 30, 2019.
Item 1 d: The City shall receive a manufacturer's extended warranty, per the
terms of Pentair's November 5, 2015 warranty statement provided in the
Installation, Operation and Maintenance Manual, for the lift pumps for a period
of one year from the date Additional New Impellers are installed. For the
avoidance of doubt, the manufacturer's extended warranty is not a modification
of the Purchase Order terms and is not a guarantee that no rag balls will occur
in the system, which rag balls Pentair maintains are not caused by its equipment.
Item 1 e: Pulice shall assume the defense of, pay all expenses of defense,
· · and indemnify and hold harmless the City and Pentair, and their officers and
employees, from all claims, loss, damage, injury and liability of every kind, nature
and description, directly or indirectly arising from or in connection with any
demands, liens, Stop Payment claims, back charges, labor claims, or any other
claims ("Claims") for compensation by any person, firm or entity that provided
labor, material, equipment or services to Pulice or any lower tier of Pulice on the
Project, including in connection with Capacity Drift and/or rag balls. With respect
to the City, this defense, indemnity and hold harmless obligation does not apply
to any and all Claims or lawsuits by Nada Pacific Corporation and/or any lower
tiers of Nada Pacific Corporation.
Item 1f: Within 30 days, the City will record a partial Project Notice of
Completion, excepting Microtunneling Claims or outstanding warranty claims if
not yet resolved. Consistent with Contract Section 2~4, the faithful
performance/warranty bond will be reduced to 10 percent of the original amount
30 days after recordation of the partial Notice of Completion and will remain in
full force and effect for the lift pump extended warranty period set forth in Item
00091s30 1Page 13 of 17
(
1d. The bonds. to secure payment of subcontractors, laborers and materials
suppliers shall be released six months plus 30 days after recordation of the
partial Notice of Completion if all claims have been paid.
00091s30 ,Page 14 of 17
CITY OF CARLSBAD
CONTRACT CHANGE ORDER NO. 17
PROJECT: PWS13-40UTIL, Agua Hedionda Sewer Lift Station, Vista/Carlsbad
Interceptor Sewer Reaches VC11B-VC15, and Recycled Water Line
Project
CONTRACT NO. 338861, 34921. 39491. 60011, 50271 P.O. NO. P130569
&
P130570
ACCOUNT NO. /388619066, /349219066, /394919066, /600119066, /502719066
CONTRACTOR: Pulice Construction
ADDRESS: 2033 West Mountain View Road
Phoenix. AZ 85021
The Contractor is directed to make the following changes for the reasons set forth in the
Contract Change Order Transmittal, above, and described below. Changes and directives
shall include all labor, materials, equipment, contract time extension, and all other goods
and services required to implement this change. Payment stated on this change order
includes all charges, direct or indirect, arising out of this additional work including charges
for field overhead, extended home office overhead, delays, disruptions, cumulative
impacts, loss of efficiency, extended equipment costs and overtime premium costs and is
expressly agreed between the City and the Contractor to be the complete and final costs
hereof. The requirements of the specifications, where pertinent and not in conflict with
this change order, shall apply to these changes. This change order is not effective unless
signed by the City Manager or his/her designee.
Pursuant to Section 3 of the General Provisions of this Contract, perform the following:
Item 1: Incorporate all terms, conditions, provisions, requirements and obligations included
within the attached settlement agreement between the City, Contractor, and Pentair
Flow Technologies, LLC dba Fairbanks Nijhuis without limitation or exclusion.
Additional Terms:
Item 1 a: Time for completion of all work under the contract shall be extended to
October 30, 2019.
Item 1b: The City accepts the project as complete on October 30, 2019, subject
to the Microtunneling Claims and any outstanding warranty claims, as defined in the
Settlement Agreement entered into between the City of Carlsbad, Contractor, and
Pentair.
00091s30 1Page 15 of 17
. (
Item 1 c: The Pulice warranty periods for all warranties required by the Contract
begin on October 30, 2019.
Item 1 d: The City shall receive a manufacturer's extended warranty, per the
terms of Pentair's November 5, 2015 warranty statement provided in the Installation,
Operation and Maintenance Manual, for the lift pumps for a period of one year from
the date Additional New Impellers are installed. For the avoidance of doubt, the
manufacturer's extended warranty is not a modification of the Purchase Order terms
and is not a guarantee that no rag balls will occur in the system, which rag balls Pentair
maintains are not caused by its equipment.
Item 1 e: Pulice shall assume the defense of, pay all expenses of defense, and
indemnify and hold harmless the City and Pentair, and their officers and employees,
from all claims, loss, damage, injury and liability of every kind, nature and description,
directly or indirectly arising from or in connection with any demands, liens, Stop
Payment claims, back charges, labor claims, or any other claims ("Claims") for
compensation by any person, firm or entity that provided labor, material, equipment
or services to Pulice or any lower tier of Pulice on the Project, including in connection
with Capacity Drift and/or rag balls. With respect to the City, this defense, indemnity
and hold harmless obligation does not apply to any and all Claims or lawsuits by Nada
Pacific Corporation and/or any lower tiers of Nada Pacific Corporation.
Item 1 f: Within 30 days, the City will record a partial Project Notice of
Completion, excepting Microtunneling claims if not yet resolved and Exhibit B items.
Consistent with Contract Section 2-4, the faithful performance/warranty bond will be
reduced to 10 percent of the original amount 30 days after recordation of the Notice
of Completion and will remain in full force and effect for the lift pump extended
warranty period set forth in Item 5. The bonds to secure payment of subcontractors,
laborers and materials suppliers shall be released six months plus 30 days after
recordation of the partial Notice of Completion if all claims have been paid.
Increase to contract cost. ........................................................... $1,600,000.00
TOTAL INCREASE TO CONTRACT COST ....................... ;, ............... $1,600,000.00
TIME FOR COMPLETION OF ALL WORK UNDER THIS CONTRACT SHALL BE
INCREASED BY THREE HUNDRED AND FORTY-SIX (346) WORKING DAYS
RESULTING IN A REVISED CONTRACT COMPLETION DATE OF OCTOBER 30,
2019.
00091sJo ,Page 16 of 17
RECOMMENDED BY:
CONSTRUCTION MANAGER (DATE)
ENGINEERING MANAGER (DATE)
DEPARTMENT HEAD (DATE)
APPROVED AS TO FORM:
CITY ATTORNEY (DATE)
APPROVED BY:
CONTRACTOR (DATE)
FINANCE DIRECTOR (DATE}
CITY MANAGER (DATE)
DISTRIBUTION: PROJECT FILE {ORIGINAL), PURCHASING, CONTRACTOR
00091s301Page 17 of17