HomeMy WebLinkAbout110512-3043-Group-4-Amendment-for-MPLCC
City of Palo Alto (ID # 3043)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 11/5/2012
City of Palo Alto Page 1
Summary Title: Amendment for Group 4 Contract: Mitchell Park Library &
Community Center
Title: Approval of Contract Amendment No. Six with Group 4 Architecture,
Inc., for Additional Design Services for the Mitchell Park Library and
Community Center Project, to Add $692,810 for a Total Amount Not to
Exceed $8,595,231, which includes funding for all three Libraries Utilizing
Bond Funds
From: City Manager
Lead Department: Public Works
Recommendation
Staff recommends that Council Approve and Authorize the City Manager to
execute Amendment No. Six to Contract C09130744 with Group 4 Architecture,
Inc. (Attachment A), to add $692,810 for additional construction administration
services for a total contract amount of $8,595,231, of which $5,760,725 is for the
MPLC project (this represents a 14% increase in the MPLCC budget for
architectural services) and related Tolling Agreement (Attachment B).
Executive Summary
The Mitchell Park Library and Community Center (MPLCC) project has
experienced construction delays. The current schedule from Flintco shows
project completion being achieved in Spring 2013, approximately one year later
than the original scheduled date for project completion of April 29, 2012.
Group 4 Architecture, Inc. (Group 4) is contracted to provide construction
administration services for the MPLCC project. The contract includes a schedule
for the completion of these services on September 4, 2012. In order to have
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Group 4 continue to provide these essential services from September 5, 2012,
through June 30, 2013, staff recommends that the contract be amended to revise
the schedule and to increase the compensation. In addition, to preserve the City’s
rights to seek contribution against Group 4 for additional costs, including
consulting costs, related to such delay, staff also recommends the Council
approve the attached Tolling Agreement.
Background
Measure N, which passed on November 4, 2008, includes funding for construction
of a new and expanded Mitchell Park Library and Community Center (MPLCC),
renovation of the Downtown Library, and renovation and expansion of the Main
Library. Detailed history of the design development can be found in past City
Manager’s Reports to Council (CMR:286:02, CMR:119:06, CMR:343:06,
CMR:434:06, CMR:225:07, CMR:321:08, CMR:473:08, CMR:149:09, CMR:334:10
and CMR:435:10).
Discussion
Due to a one-year delay in the MPLCC construction and the unusually large
number of change orders, claims, substitutions, requests for information, and
submittals from the general contractor, Flintco, construction administration
services provided by Group 4 have exceeded the anticipated original funding in
their contract. Additionally, the Schedule of Performance in the contract has
September 4, 2012, as the milestone date for the construction administration
services to be completed.
The project delays and the unusually large number of documents submitted by
Flintco that require Group 4’s review and approval has dictated the need to
amend Group 4’s contract. Group 4’s contract includes provisions as to what
constitutes additional services. Amongst 14 different additional services listed are
attending additional meetings, providing more than two reviews of submittals,
detailed review of substitution requests, and work required to correct non-
conforming work of the contractor. Group 4 has provided documentation that
quantifies the amount of time they have spent performing these additional
services tasks. Accordingly, on July 20, 2012, the City’s Project Manager issued an
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authorization for additional services for one of these tasks and a letter authorizing
the transfer of $120,810 from the Project Closeout task to the Construction
Administration task in order to pay Group 4 for performing these additional tasks.
Staff recommends that Council approve replenishing the $120,810 transferred out
of the Project Closeout task so that Group 4 can be compensated for that task
when it is performed.
Staff recommends that Group 4’s amendment include extending the schedule for
completion of construction administration services from September 5 to June 30,
2013, and to add $692,810 of compensation as follows:
Construction Administration services: $560,000
Reimbursables: $ 12,000
Replenish Project Closeout services budget: $120,810
Total: $692,810
Staff intends ultimately to pursue recovery of these additional consultant costs
from Flintco, as the construction delay was largely caused by Flintco’s errors and
inefficiencies. In addition, to the extent any of the project delay was caused by
Group 4, Group 4 has agreed to a Tolling Agreement which allows the City to
pursue its claims against Group 4 following resolution of the dispute with Flintco.
Group 4 Contract for Main Library
The Group 4 contract for all of the Measure N Library Bond projects is quite large
and has become unwieldy and cumbersome. Consequently, staff plans to come
back to Council in the near future to enter into a new contract with Group 4 that
will encompass the remaining Main Library services instead of amending the
existing contract to add those services. The current contract has services that go
through the construction bid and award phase. The new contract will have
services that start with construction administration and end with project closeout
services. The compensation amount will be negotiated and included in the staff
report at the time staff seeks Council approval of the new Main Library contract.
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Resource Impact
Funds for the recommended Group 4 contract amendment are available in CIP PE-
09006. The Group 4, Turner and Flintco contracts and contract amendments
encumbered to date as well as this proposed amendment are as follows:
Contract Group 4
Architecture
Turner
Construction
Flintco
Construction
Original contract $3,827,280 $138,198 $24,365,000
Original Contingency -10% $2,436,500
Additional Contingency -10% $2,436,500
Amendment 1 $92,034 $432,000 n/a
Amendment 2 $312,396 $3,008,250 n/a
Amendment 3 $3,192,000 $205,297 n/a
Amendment 4 $258,041 n/a n/a
Amendment 5 $220,670 n/a n/a
Amendment 6 $692,810 n/a n/a
Total Contract Value to Date $8,595,231 $3,783,745 $29,238,000
Note: The Group 4 and Turner amounts are for all three Measure N library
projects.
Policy Implications
Amending this contract does not conflict with any current City policy.
Timeline
Construction of the new Mitchell Park Library and Community Center began in
September of 2010 and staff anticipates the facility opening to the public in Spring
2013.
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Attachments:
A: Contract with Group 4 Amendment No 6 (PDF)
B: Tolling Agreement (PDF)
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S:/013/Tolling Agreement
TOLLING AGREEMENT
This Tolling Agreement (the “Tolling Agreement”) is entered into effective September 4,
2012 (the “Effective Date”) by and between the City of Palo Alto, a California chartered
municipal corporation (“CITY”), GROUP 4 ARCHITECTURE, RESEARCH + PLANNING, INC., a
California corporation (“G4”) (hereinafter collectively referred to as “the Parties”).
NOW THEREFORE, in consideration of the premises, the mutual covenants herein
contained, and other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, the Parties agree as follows:
1. To assist in the defense of any potential claims by Flintco, Inc., against the City, concerning
its work on the demolition of an existing library and community center at Mitchell Park and
the construction of a new joint library and community center (“Mitchell Park Project”), the
Parties agree to toll all statutes of limitations and contractual time bars with respect to the
Parties’ rights, if any, arising out of and/or relating to that certain written Contract No.
C09130744 between City and G4 (together with all amendments and exhibits, the
“Contract”) in connection with the design and development, bidding and construction,
and/or any pre‐construction, construction management, construction administration,
closeout/warranty services or other design related services provided by G4 to City for the
Mitchell Park Project, which tolling shall be from the Effective Date of this Tolling
Agreement to its expiration or termination.
2. Except as to the effect of the statutes of limitations provisions as stated in Paragraph 1
above, the Parties agree that upon expiration or termination of this Tolling Agreement, each
party will have the same procedural rights, duties, positions and defenses as they had
before this Tolling Agreement was signed.
3. The Parties agree that this Tolling Agreement shall be in effect until such time as all legal
claims by Flintco, Inc. relating to the construction of the Mitchell Park Project are resolved
or this Tolling Agreement is terminated under the terms of Paragraph 12 hereof or on
December 31, 2015, whichever comes first, and shall expire at that time unless renewed or
extended by a writing signed by the Parties.
4. The Parties agree that this Tolling Agreement does not apply to claims, if any, which were
barred by limitations as of the Effective Date. Further, this agreement shall not operate to
waive, limit, modify or otherwise affect any claims or defenses, or any rights and obligations
that any of the Parties may possess against any other Party, except for the tolling effect
agreed to herein.
5. The Parties agree this Tolling Agreement shall not be offered in evidence as an admission of
liability, nor shall it be used in any way, including in discovery, as evidence thereof.
6. The Parties agree that this document constitutes the entire agreement of the parties
regarding the subject matter hereof, that there are no unwritten terms and conditions, and
that this is an integrated document which can be modified only in writing signed by all the
Parties.
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S:/013/Tolling Agreement
7. The Parties warrant that each of them have been advised by legal counsel of its own choice
as to the terms and conditions of this Tolling Agreement and the legal significance thereof.
8. By signing below, the Parties each acknowledge that they have read this Tolling Agreement
and are fully aware of its contents.
9. Notwithstanding anything to the contrary in this Tolling Agreement, nothing in this Tolling
Agreement shall prevent City from tendering any claims it receives from Flintco, Inc. to
Group 4 under the indemnity provisions of the Contract, nor shall prevent G4 from
tendering any claims it has against the City.
10. This Tolling Agreement shall be binding and enforceable against the Parties hereto and any
assigns or successors‐in‐interest. The Parties declare and represent that no promise,
inducement or agreement not herein expressed has been made to any of their
representatives, and this Tolling Agreement contains the entire agreement between the
Parties. The terms of this Tolling Agreement are contractual in nature and not mere
recitals. The signatories below warrant that they have appropriate authority to execute this
Tolling Agreement and understand and acknowledge that all adverse parties are relying on
this warranty of authority.
11. This Tolling Agreement may be executed in one or more original or facsimile counterparts,
each of which shall be deemed an original, but also which together will constitute one and
the same instrument.
12. This Tolling Agreement may be terminated at any time after June 30, 2013, by any Party
hereto upon ninety (90) days’ written notice to the other Party, which notice shall be
effective upon date of receipt after mailing by first‐class certified mail or first‐class
registered mail, postage pre‐paid, by UPS or Federal Express Overnight delivery, at the
addresses as listed in Paragraph 13.
13. Notices under this Tolling Agreement shall be given as follows:
To City:
City Attorney
Attn: Cara Silver
250 Hamilton Avenue
Palo Alto, CA 94301
To G4:
GROUP 4 ARCHITECTURE, RESEARCH + PLANNING, INC
211 Linden Avenue
South San Francisco, CA 94080
and
Pandell Law Firm, Inc.
1990 North California Boulevard, Suite 1010
Walnut Creek, CA 94596