HomeMy WebLinkAboutStaff Report 3815
City of Palo Alto (ID # 3815)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 5/20/2013
City of Palo Alto Page 1
Summary Title: El Camino Park\Mayfield Pump Station Project - CDM
Amendment #2
Title: El Camino Park / Mayfield Pump Station - CDM Amendment #2
Approval of Amendment Number 2 to Contract #C10131396 in the Amount of
$1,173,000 with CDM Smith Inc. to Provide Additional Services Associated
With the Reservoir, Pump Station, and Well at El Camino Park and Mayfield
Pump Station Augmentation Project WS-08002, for a Total Not to Exceed
Amount of $6,300,802 (Continued from April 1, 2013, as amended)
From: City Manager
Lead Department: Utilities
Recommendation
Staff recommends that Council approve Amendment Number 2 to Contract #C10131396 in the
amount of $1,173,000 with CDM Smith Inc. to provide additional services associated with the
reservoir, pump station, and well at El Camino Park and Mayfield Pump Station Augmentation
Project WS-08002 (CMR:424:09) for a total revised contract not to exceed amount of
$6,300,802.
Amendment Number 2 no longer includes the El Camino Park predesign work originally
proposed to evaluate the possible relocation of the Julia Morgan building to El Camino Park.
Staff may return to Council to separately seek approval of the predesign work for the possible
relocation of the Julia Morgan building.
Additional detail on the project delay and schedule have been added to this report, updating
the report originally submitted to Council for its April 1, 2013 meeting.
Background
On November 9, 2009, Council awarded a contract to CDM Smith Inc. for the Design and
City of Palo Alto Page 2
Construction Management of El Camino Park Reservoir, Pump Station and Well and Mayfield
Pump Station Augmentation Project (CMR 424:09). Council approved a total budget of
$3,190,566 and a contingency amount of $638,114 for this project.
This design contract supports the ongoing effort to improve the ability of the City’s water
system to supply water during emergency periods when the traditional supply is not available.
The California Department of Public Health (CDPH) recommends that water systems have the
ability to supply an 8 hour peak demand during periods of traditional supply curtailment.
On September 10, 2012, Council approved Contract Amendment Number 1 (Staff Report
#2979) in the amount of $1,299,122 for three major elements, including the incorporation of: 1)
additional design features to minimize legacy operations and maintenance impacts in response
to recent changes to the California Department of Public Health requirements, 2) a Community
Services Department request to include further upgrades to El Camino Park upon completion of
the utility work and 3) a study that would consider expanding the use of our emergency water
well at El Camino Park. Amendment Number 1 was approved by Council and all work associated
with this amendment has begun.
Currently, both the El Camino Park Reservoir, Pump Station and Well, and the Mayfield Pump
Station Augmentation Project have experienced delays.
Discussion
Three large projects comprise the bulk of the Emergency Water Supply projects. The three
projects are:
El Camino Park Reservoir and associated Lytton Pump Station re-build and new Well
Project (all located in El Camino Park),
Mayfield Pump Station Augmentation, and
The “Wells Project” comprising 2 new wells and the rehabilitation of five existing wells.
Construction of the El Camino Park Reservoir, Pump Station and Well at El Camino Park began
in October 2011 and, at that time, was estimated to be completed in December 2012.
Construction of the Mayfield Pump Station Augmentation Project began in August 2011 and, at
that time, was estimated to be completed in November 2012. Due to unforeseen delays at each
site, construction at the El Camino Park site is not expected to be completed until December
2013 and construction at the Mayfield Pump Station site is not expected to be completed until
June 2013.
City of Palo Alto Page 3
CDM is the construction manager and design engineer for the El Camino Park Project and the
Mayfield Pump Station Augmentation. The CDM contract has two parts (1) a design and
engineering portion based on a set number and type of tasks; and (2) a construction
management portion based on a broad scope defined by project completion. I It is the City’s
contention that the construction management portion of the contract requires CDM to perform
all construction management services for a maximum “not to exceed” amount. CDM contends
that project delays are outside its control and that they are owed additional compensation.
This project is a at a critical juncture in the construction of the pump station at El Camino Park
and it is imperative that the CDM continue to perform design and construction management
services.
To avoid additional delays with the project, CDM and the City have negotiated Contract
Amendment 2. This amendment and its exhibits establish a framework for resolving the
payment dispute at a later date. Amendment Number 2 establishes a “Set-Aside Account”
which will be maintained by the City to retain a portion of the disputed payments for billed
services. At a future date, the disputed payments may be released following either a written
resolution between the parties, or a binding dispute arbitration proceeding. The amount
deposited and retained in the set aside account will be 50% of any amount billed by CDM for
contruction management services under Subtask 3.2.1 (Exhibit A), Construction Management
Services During Extended Construction Periods, of Amendment Number 2, up to 50% of the
total amount of $348,000 budgeted for Subtask 3.2.1, and no more than $174,000. The balance
of the billed amount will be paid to CDM. Both the amounts paid for construction management
and the amounts held in the set-aside account are subject to the dispute resolution procedure.
Amendment Number 2 provides Staff with the authority to procure additional services from
CDM beyond the services provided for in the existing contract, if such services become
necessary. Subtask 5.2, Additonal Services (such as claims-related support, noise testing, and
other construction related services to be determined), provides funding up to $200,000 to be
paid to CDM for such additional services on an if, and as requested, basis within the limits of
the available Subtask 5.2 budget and the task descriptions included under Subtask 5.2. City is
not obligated to authorize any of the additional services described under Subtask 5.2.
Project Progress and Delays
Staff has kept the public apprised about the progress of all Emergency Water System projects
via a dedicated web page (www.cityofpaloalto.org/emergencywater ), notices on the Utilities
bill and annual update bill inserts. Additionally, information is disseminated through the Palo
Alto Neighborhoods groups email lists and at community events and workshops.
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El Camino Park Reservoir
Construction on this project is currently behind schedule. At this time, the construction of the
concrete reservoir is nearly complete and the site has been back-filled. The new well on the
site has been drilled and tested. Construction of the pump station has started and is
continuing. To date, no major design oversights or un-corrected, major deficiencies in the
facilities have been identified.
With the goal of completing the project by the new schedule of December 2013, the City,
working with CDM, the construction manager, is in dialog with the (third party) construction
contractor to identify the reasons for the delays experienced to date. The construction
contractor has made a number of assertions as to the reasons for the delay and the City is doing
its due diligence in managing to the contract in order to keep the project on track to complete
the project in December of 2013. Some of the reasons for delay asserted by the construction
contractor include: changes in temporary piping design, delays in shutting off the pre-existing
water supply, delays in obtaining approval to perform work adjacent to the Caltrain right of
way, and extra time and costs for excavation of the reservoir and underground piping and
compaction of the fill during the rainy seasion. As required by the construction contract, the
City has been asking the construction contractor for timely submittals of all change orders
related to delays experienced. After several requests by the City, the construction contractor
has submitted change orders with delay times and they are being evaluated.
Mayfield Reservoir
The construction on the project is nearly complete with final acceptance expected to occur in
June, 2013. The construction manager and the City are evaluating requests from the
construction contractor for the extension of the project due to delays. To date, there have not
been any major design oversights or construction errors on the project.
Related Project (Julia Morgan Building Relocation)
Associated work for the possible relocation of the Julia Morgan building, previously included in
the contract amendment request submitted to Council on April 1, 2013, has been removed
from the current contract Amendment Number 2. Staff may return to Council to separately
seek approval of a third amendment to this contract for an amount of $20,000 for this work. If
so, we expect the Council will want a separate discussion on this matter.
Amendment 2
Exhibit A includes all additional design and construction management efforts that will be
needed to see the project through to the revised completion date. The work scope in Exhibit A
increases the budget for these services by $1,173,000 and includes increased submittal review
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activities, additional site visits and meeting attendance during the extended construction
period, increased change order preparation and review, increased on-site construction
management services during the extended construction period, development of Operations
and Maintenance Manuals for both El Camino Park and the Mayfield Pump Stations.
The included items listed in Exhibit A will be paid through Amendment Number 2 and accounts
for the additional $1,173,000 that is requested. All work items listed in Exhibit A were originally
or previously scoped items and the contract amounts for the listed tasks need to be increased
in order to achieve a project completion date of December 2013.
The cost associated with Amendment Number 2 (Exhibit A) totals $1,173,000. The total cost of
the contract including this Amendment Number 2 is $6,300,802, which is comparable to other
local projects of this magnitude (Graham Reservoir in Mountain View).
This Amendment Number 2, with its accompanying tolling agreement, is subject to the
Reservation of Rights and Set Aside provisions. Under this amendment, any sums in whatever
amounts actually paid to Consultant or paid into any set-aside account are specifically made
without prejudice to the City’s right to claim that no such sums are payable hereunder by
reason of the previously executed Contract, including any amendments thereto. This
amendment keeps Consultant on the Project by advancing and compensating the sums to
Consultant, which are subject to a future dispute resolution procedure.
Resource Impact
The attached Amendment Number 2, Exhibit A, requests an additional appropriation of
$1,173,000 for the contract titled, “Design and Construction Management of El Camino Park
Reservoir, Pump Station and Well and Mayfield Pump Station Augmentation Project.” There is
sufficient budget in the Emergency Water Supply Project (WS-08002) to fund the additional
work included under this Amendment Number 2 to the contract. Current staffing levels and the
need to maintain continuity with construction prevent City staff from performing this additional
work. Amendment Number 2 will allow for additional construction management work needed
to finish the project by the expected completion date. The breakdown of the original contract
amount and later amendments is summarized in the following table:
Exhibit Summary Breakdown Total Cost
Exhibit A (Amendment Two Net Total) $1,173,000
Amendment One (Net Total) $1,299,122
Original Contract Total w/ Contingency (CMR:424:09) $3,828,680
City of Palo Alto Page 6
Revised Contract Grand Total $6,300,802
Staff is currently working with the construction contractors and the City’s construction manager
to guide the project through to a reasonable completion date based on adjustments made to
the schedule due to unforeseen conditions. Staff is also continuing to work with the City
Attorney’s Office to monitor the construction contractor’s performance and compliance with
the construction contract requirements.
Policy Implications
Amendment Number 2 does not represent a change to existing policies. This recommendation
is consistent with the Council-approved Utilities Strategic Plan (Staff Report 1880), especially
Key Strategy No. 1, “Ensure a high level of system reliability in a cost effective and timely
manner”.
Environmental Review
Council certified an Environmental Impact Report (EIR) for this project in March 2007. The
environmental aspects of the work contemplated by this Amendment Number 2 present no
new significant environmental effects nor a substantial increase in the severity of previously
identified significant effects beyond those discussed in the March 2007 EIR.
Attachments:
Attachment A: Palo Alto CDM Smith Amend No 2-05152013085722 (PDF)
CITY OF PALO ALTO CONTRACT NO. CI0131396
AMENDMENT NO. TWO TO CONTRACT NO. CI0131396
BETWEEN THE CITY OF PALO ALTO AND
CDM SMITH INC.
This Amendment No. Two ("Amendment") to Contract No. C10131396 ("Contract") is
entered into and made effective on May ,2013, by and between the CITY OF PALO ALTO, a
California Charter City, with offices located at 250 Hamilton Avenue, Palo Alto, California
("City"), and CDM SMITH INC., a Massachusetts corporation with offices located at 100
Pringle Avenue, Suite 300, Walnut Creek, California 94596 ("Consultant") (City and Consultant
may be referred to collectively as "parties" or separately as a "party").
RECITALS:
WHEREAS, on November 18, 2009, the City and Consultant entered into the Contract
(the "Original Agreement") concerning, among other things, the Reservoir Pump Station and
Wells at El Camino Park and Mayfield Pump Station Augmentation in Palo Alto, ("Project");
and
WHEREAS, on September 10,2012, the parties entered into Contract Amendment No.
One; and
WHEREAS, Consultant has presented its Supplement Contract Revision No.1 (also
referred to as Supplemental Amendment No.1) to the City, which was added to the Contract as
Change Order No.1, Consultant has presented its Supplement Contract Revision No.2 (also
referred to as Supplemental Amendment No.2) to the City, which was added to the Contract as
Change Order No.2, and the Consultant presented its Supplemental Contract Revision No.3, 4
and 5, (also referred to as Supplemental Amendment No.s 3, 4 and 5) which were added to the
Contract as Contract Amendment No. One, referred to above, and
WHEREAS, the contractor for the Project, Anderson Pacific Engineering Services, Inc.,
("Contractor") hired by the City to build the Project, has not completed the Project within the
time specified in the related construction contract; and
WHEREAS, a dispute (the "Dispute") has arisen between City and Consultant over the
interpretation of the Contract, whereby on the one hand City contends the Contract, as relating to
Subtask 3.2 therein, is a "not to exceed" contract for the completion of all work on the Project as
described under Subtask 3.2 whenever the Project is completed, such that Consultant is not
entitled to any additional compensation for certain Construction Phase Services under the
existing Contract upon full payment of the compensation identified for that Subtask 3.2-
Construction Management Services (and Subtasks contained therein) and Consultant is obligated
to continue to perform such services at no cost to the City, and whereby on the other hand
Consultant contends that the Agreement is a time-and-materials contract with a "not-to-exceed"
upper limit, which "not-to-exceed" amount was based in part on the anticipated construction
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 1
completion date of June 30, 2012; and because the construction is now expected to be complete
by December 31, 2013 and Consultant contends that the extended construction schedule resulted
from causes that were not the Consultant's fault and the City desires that Consultant continue to
provide Construction Management Services beyond June 30, 2012, Consultant is entitled to be
paid pursuant to the Agreement's Billing Rate Schedule to continue to provide such Construction
Management Services; and
WHEREAS, the parties have agreed to enter into this Amendment on the terms set forth
below in order to keep Consultant on the Project by compensating the sums to Consultant on the
terms and conditions set forth below and in the attachments and Exhibits hereto; and
WHEREAS, in light of the foregoing, the parties wish to amend the Contract as set forth
below.
NOW THEREFORE, in consideration of the covenants, terms, conditions, and provisions
of this Amendment, the parties agree:
AGREEMENT:
SECTION 1. The Recitals set forth above are hereby incorporated in and made a part of
this Amendment and the Contract by this reference. The parties agree that nothing contained in
this Amendment No.2, including all attachments and Exhibits hereto, is intended in any way to
be an admission or concession regarding, and in no way will be interpreted to impact their
respective positions, rights, claims and remedies associated with the Dispute, and that the
description of the Dispute, above, is for general reference and not intended to limit or constrain
either party's position with respect to the Dispute.
SECTION 2. Exhibit "A" to the Contract entitled "SCOPE OF SERVICES," is hereby
amended to add the following:
"Consultant shall also perform the Services as described in Exhibit A to Anlendment No.
Two."
SECTION 3. SECTION 4 of the Contract, "NOT TO EXCEED COMPENSATION" is
hereby amended to read:
Subject to the Reservation of Rights and Set-Aside provisions set forth in Exhibit "C",
attached and incorporated by this reference, the compensation to be paid to Consultant for
performance of the Services described above and in Exhibit "A," including paynlent for both
professional services and reimbursable expenses, shall not exceed Six Million, One Hundred
Thousand, Eight Hundred Two Dollars ($6,100,802.00). In the event Additional Services are
authorized, the total compensation for services and reimbursable expenses shall be increased by
those properly authorized amounts, but in no event shall the total compensation exceed Six
Million, Three Hundred Thousand, Eight Hundred Two Dollars $6,300,802.00. The applicable
rates and schedule of payment are set out in Exhibit "C", entitled "PAYMENT," which is
attached to and made part of this Agreement.
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 2
Additional Services, if any, shall be authorized in accordance with and subject to the
provisions of Exhibit "C." Consultant shall not receive any compensation for Additional
Services perfonned without the prior written authorization of City. Additional Services shall
mean any work that is detennined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services including that described in
Exhibit "A".
SECTION 6. The following exhibits to the Contract are hereby amended to read as set
forth in the following attachments to this Amendment, which are incorporated in full by this
reference:
a. EXHIBIT "C" entitled "PAYMENT" as attached hereto.
b. EXHIBIT "C-1" entitled "Hourly Rate Schedule" as attached hereto.
SECTION 7. Tolling Agreement: The parties agree to enter into the Tolling Agreement
attached hereto as Exhibit "D", and which is hereby incorporated by this reference, wherein the
parties shall agree to toll any and all statutes of limitations and contractual time bars as indicated.
The Tolling Agreement shall survive the tennination of the Contract, unless earlier tenninated as
provided therein.
SECTION 8. Except as herein modified, all other provisions of the Contract, including
any exhibits and subsequent amendments thereto, shall remain in full force and effect. In
particular (and without in any way whatsoever affecting all such other provisions of the Contract
referred to herein, including any exhibits and subsequent amendments thereto), the end date of
the Tenn of the Contract as previously set forth in Section 2 of the Amendment entered into on
September 10,2012, between the parties is revised to April 1,2015.
IN WITNESS WHEREOF, the parties have by their duly authorized representatives
executed this Amendment on the date first written above.
CITY OF PALO ALTO:
By: ___________ _
City Manager
APPROVED AS TO FORM:
By: ___________ _
City Atton1ey
AMENDMENT NO. TWO
CONTRACT NO. C10131396
CONSULTANT:
CDM SMITH INC.
By -r _____ ~~~~~--
-Title: ~I\;\l~ V~ Pr~/,rJ... I
Page 3
EXHIBIT A
TO AMENDMENT NO. TWO TO CONTRACT NO. C10131396
BETWEEN CITY OF PALO ALTO AND CDM SMITH INC.
(CDM SMITH --SUPPLEMENTAL CONTRACT REVISION NO.6)
Scope of Services for
Additional Professional Services
Design and Construction Management Services for the Reservoir,
Pump Station, and Well at EI Camino Park and
Mayfield Pump Station Augmentation
City of Palo Alto
BACKGROUND
This Exhibit A to Amendment No. Two (referred to internally by CDM SMITH as Supplemental
Contract Revision No.6) amends the scope of professional services initiated in the Original
Agreement between the City of Palo Alto (City) and CDM Smith Inc. (Consultant), dated
November 18,2009, and as amended by Amendment No. One dated September 10,2012. This
Amendment No. Two was prepared to provide additional professional engineering and
construction management services during construction of the Reservoir, Pump Station, and Well
at El Camino Park and Mayfield Pump Station Augmentation Project.
The Agreement was developed prior to commencement of the project design. At that time, it
was estimated that the construction of the projects would be completed by June 30, 2012. Final
completion of construction of the Mayfield and El Camino Park Phase 1 projects are now
estimated to occur in May and December 2013, respectively.
This Amendment No. Two will amend and extend the period of professional engineering and
construction management services provided under 'Task 3 -Construction' and 'Task 4 Post
Construction Services' of the Agreement as a result of the projected Final Completion dates for
both the Mayfield and El Camino Park Phase 1 projects noted in the paragraph above. This
Amendment Two will also amend the amounts of certain tasks and modify the scope of services
to be provided by the Consultant. The tasks below are numbered to correspond to the tasks
identified in the Agreement, as modified by Amendment No. One,
ADDITIONAL PROFESSIONAL SERVICES
Subtask 3.1.1.2: Increased Submittal Review Activities
The purpose of this subtask is to increase the budget allocation for shop drawings, product data,
and samples requiring engineering review for the Mayfield Pump Station Augmentation project
and El Camino Park Reservoir, Lytton Pump Station, and Well Project Phase 1 project.
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 4
Approach:
Equitably adjust Consultant budget to reflect number of submittals received to date and projected
number of total submittals anticipated through project completion.
Assumptions:
The number of submittals and resubmittals anticipated in total for the Project in Amendment No.
One totaled 320. The number of anticipated submittals and resubmittals will be increased to a
total anticipated of 750.
Deliverables:
One copy of review comments for each submittal.
Justification:
The nature of the Contractors' assembly of submittal information and total number of
submittals/resubmittals for both the Mayfield Pump Station Augmentation Project and EI
Camino Park Reservoir, Lytton Pump Station, and Well Project Phase 1 exceeds the previous
assumptions for submittal review.
Subtask 3.1.2.1: Site Visits and Meeting Attendance During Extended Construction Periods
The purpose of this subtask is to extend the scope and period of site visits and meeting
attendance to provide services related to Anderson Pacific Engineering Services, Inc.'s
performance of City of Palo Alto Contract No. C12141077 identified in Subtask 3.1.2 of the
Agreement to cover the period through December 31, 2013.
Approach:
As per Subtask 3.1.2 of the Agreement.
Assumptions:
• Consultant's engineering staff will participate in weekly construction meetings for each
of the Mayfield and EI Camino Park projects. Engineering staff attendance will generally
be via conference call.
• Consultant shall send one engineer to attend construction progress meetings, or other
project-related meetings, in person as-requested by City.
Deliverables:
Minutes of weekly construction meetings will be generated by Consultant's Construction
Manager per Subtask 3.2 of the Agreement. Minutes of non-construction meetings will be
drafted by Consultant for review by City.
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 5
Justification:
The duration and associated quantity of work to support the Mayfield and EI Camino Park Phase
1 projects has increased as compared to the level of effort anticipated by City and Consultant at
the time the Agreement was developed.
Subtask 3.1.4.1 Increased Change Order Preparation and Review
The Mayfield Pump Station Augmentation Project and EI Camino Park Reservoir, Lytton Pump
Station, and Well Project Phase 1 have experienced an increased number of change orders as a
result of changes either proposed or identified as necessary by Contractor, City, or Consultant
during construction.
Approach:
As per Subtask 3.1.4 of the Agreement.
Assumptions:
• As per Subtask 3.1.4 of the Agreement.
• 'Change orders' includes 'requests for proposals', 'designer clarifications', and claims
support.
• The number of project change orders will be increased by 24, from 16 to a new total of
40. It is assumed that each change order, on average, shall take no longer than 12 hours
of Consultant labor effort.
Deliverables:
As per Subtask 3.1.4 of the Agreement.
Justification:
Although the dollar volume of approved change orders for the projects to date has been less than
3 percent of the total contract value, the number of change orders and associated development,
review, processing and negotiations have exceeded the level assumed in the Agreement.
Subtask 3.2.1 Construction Management Services During Extended Construction Periods
The purpose of this subtask is to extend the Construction Management services provided for in
Subtask 3.2 of the Agreement, as modified below, to cover the period of Mayfield and EI
Camino Park Phase 1 project construction through December 31,2013.
Assumptions:
The construction phase of the Project being performed by Anderson Pacific Engineering Services
under City of Palo Alto Contract No. C12141077 will conclude at such a time that construction
management services provided for under Subtask 3.2 (and this Subtask 3.2.1) will not be
required after December 31, 2013.
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 6
Justification:
The duration of Construction Management work to support the Mayfield and EI Camino Park
Phase 1 projects has increased beyond the Term of the Contract and budget provided in the
Agreement.
A dispute (the "Dispute") has arisen between City and Consultant over the interpretation of the
Contract relating to Subtask 3.2 whereby on the one hand City contends the Contract, as relating
to this Subtask 3.2 therein is a "not to exceed" contract for the completion of all work on the
Project whenever the Project is completed, such that Consultant is not entitled to any additional
compensation for certain Construction Phase Services under the existing Contract, and whereby
on the other hand Consultant contends that the Agreement is a time-and-materials contract with a
"not-to-exceed" upper limit, which "not-to-exceed" amount was based in part on the anticipated
construction completion date of June 30, 2012; and because the construction is now expected to
be complete by December 31, 2013 and Consultant contends that the extended construction
schedule resulted from causes that were not the Consultant's fault and the City desires that
Consultant continue to provide Construction Management Services beyond June 30, 2012,
Consultant is entitled to be paid pursuant to the Agreement's Billing Rate Schedule to continue
to provide such Construction Management Services.
Subtask 4.3: Operations and Maintenance Manuals for New Facilities
The purpose of this subtask is to develop Operations and Maintenance (O&M) Plans for the new
facilities constructed by the Mayfield and El Camino Park -Phase 1 projects.
Approach:
• Consultant will develop two separate O&M Manuals, one document for the Mayfield
Reservoir and Pump Station, and one document for the El Camino Park Reservoir and
Lytton Pump Station. Each Manual, including all tables and figures, is anticipated to be
on the order of 20-30 pages in length.
• Each of the manuals will present, in a summarizing fashion, the following information for
each facility: '
o List of major components and equipment and intended purpose/function,
o Facility layout/orientation drawing (plan view),
o Typical equipment settings,
o Pump station operations in 'Normal' and 'Emergency' modes,
o Proposed reservoir operations,
o Control strategy overview,
o Pumping characteristics and pump curves,
o SCADA monitoring system,
o Generator operation,
o Well operation (El Camino site only),
o Chemical storage and feed (El Camino site only),
o Vendor-suggested and City-desired O&M activities and frequency,
o Emergency contact information,
o Safety,
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 7
o Alarms.
• A total of two O&M coordination meetings (one kickoff and one follow-up as needed)
will be held with Utility and Operations staff to discuss document outline, 'normal' and
'emergency' operating conditions, and City-desired O&M activities and frequency. The
first meeting will be held with City staff approximately 2-3 weeks after Consultant's
receipt of Notice to Proceed.
• A draft of each manual will be submitted for Utility and Operations staff review prior to
finalization. The draft of the Mayfield PS O&M Manual will be submitted for City
review approximately 7-8 weeks after the first O&M coordination meeting.
• The comments by all City staff will be reviewed by City and integrated into one tabulated
set of review comments on each draft Plan. Comments will be provided to Consultant in
a Microsoft Excel spreadsheet and Consultant shall respond to comments by making
entries into this spreadsheet.
• The final version of each manual will be provided approximately 2 weeks after receiving
City comments.
Assumptions:
• The O&M Manuals will focus on presenting the information needed to operate the new
facilities only; the documents will not be a comprehensive evaluation of all possible
operating conditions associated with the City's distribution system or discrete pressure
zones of the distribution system.
• Equipment information, P&IDs, and detailed O&M information already compiled and
presented in either the Contractor-generated construction documents, or contained in
Conformed Drawings, may be referenced, but will typically not be contained in the O&M
Manuals.
• Proposed outlines for each of the O&M manuals have been provided to the City. The
final outline and information presented in each manual will be similar in nature and
content to that proposed.
• This task does not include or rely on any additional distribution system modeling.
Deliverables:
• Three paper copies of each draft document for City review,
• Five paper copies of each final document,
• One copy of each of the final documents in Word and Adobe "pdf' format on CD-ROM.
Justification:
This additional task is being added at the City's request.
Task 5.1: Additional Services
The purpose of this item is delete the text associated with Task 5.1 -Additional Services from
Amendment No.1 to the original Agreement, and replace it with the revised paragraphs below:
Approach:
Consultant shall provide the following additional services:
• Identification of possible leaks at Mayfield Reservoir by underwater inspection of the
AMENDMENT NO. TWO
CONTRACT NO. C10131396
PageS
completed new work within the reservoir by Aqua Video, with a not-to-exceed total
allowance of $1 0,000.
• A portion of the additional engineering and design services during construction and
additional Consultant project management during 2013 as a result of the extended periods
of construction at the Mayfield and El Camino Park sites.
These tasks are authorized under Task 5.1 with the not-to-exceed cost of$35,000, but can be
performed in conjunction with, and billed under Consultant's normal billings associated with
Tasks 1-4.
Subtask 5.2: Additional Services
Approach:
Consultant shall provide the following additional services on an if-and as-requested basis within
the limits of the available Subtask 5.2 Additional Services budget:
• Noise testing or acoustic consultation.
• Additional on-site inspection and support during construction beyond the estimated
meetings to discuss construction progress and technical issues.
• Additional engineering and design services during construction, additional Construction
Management, and additional Consultant project management should the construction
contract extend beyond the assumptions provided in Task 3 per the Agreement, as revised
by Amendment No.1 and by this document.
• Additional construction testing and ICC inspection beyond the scope of services added by
Subtask 3.2.1 of Amendment No.1 to the Agreement.
• Additional project management and QAlQC related to any Additional Service
assignment.
• Additional claims-related support.
• Additional construction submittals, resubmittals, and RFIs for the Mayfield Pump Station
Augmentation Project and Camino Park Reservoir, Lytton Pump Station, and Well
Project -Phase 1.
Use of any portion of the Additional Services budget shall require written direction from the
City's Project Manager prior to proceeding with any of the services noted above. The City may,
at its sole discretion, decline to authorize any or all work described in Task 5.2.
SCHEDULE
The contract time for all Phase 1 and Phase 2 work to be completed (including an extra
allowance for contract closeout activities), is extended to June 30, 2015 pursuant to the following
estimates of completion dates:
• Task 1 and Task 2 activities were completed by June 1,2011,
• Task 3 activities are estimated to be completed by Decerrlber 31,2013,
• Task 4 and Task 5 activities are estimated to be completed by April 1, 2014,
• Task 6 through Task 10 activities are estimated to be completed by April 1, 2015,
• Task 11 through Task 13 activities are estimated to be completed by June 1,2014.
AMENDMENT NO. TWO
CONTRACT I\JO. C10131396
Page 9
COMPENSATION
Compensation for the Tasks and Subtasks identified above are increased by the following
amounts. Subtasks 4.3 and 5.2 are new Subtasks as of this Amendment No.2, and are the total
amount for each of those Subtasks. Progress payments for the services will be processed
according to a tin1e and materials basis according to Consultant's Billing Rate Schedule attached
to the Agreement. The amount of increased compensation, or for Subtasks 4.3 and 5.2 initial
compensation for the services described herein is summarized below.
Tasks
Additional Engineering--Sum of all
additional activities under Subtask 3.1
Additional Construction Management--Sum
of all additional activities under Subtask 3.2
Subtask 4.3: Operations and Maintenance
Plans for New Facilities
Subtask 5.1: Additional Services (No
monetary changes to the sub task amount of
$35, 000 approved in Amendment No.1 to
the Agreement)
Subtask 5.2: Additional Services
AMENDMENT NO. TWO
CONTRACT NO. C10131396
TOTAL
Amount
$550,000
$348,000
$75,000
$0
$200,000
$1,173,000
Page 10
AMENDMENT NO. TWO
CONTRACT NO. C10131396
EXHIBITB
[INTENTIONALL Y LEFT BLANK]
Page 11
EXHIBIT C
TO AMENDMENT NO. TWO
PAYMENT
The City agrees to compensate the Consultant for progress in the performance of professional
services in accordance with the terms and conditions of this Agreement as modified by this
Amendment. Such payments shall be calculated based on the hourly rate schedule attached as
Exhibit C-1 up to the not to exceed budget amount for each task set forth below.
For Subconsultants, such as Inspections, special inspections, electronic document services, and
photographic docun1entation services, the City agrees to make payn1ent to the Consultant for
services performed in accordance with the terms and conditions of this Agreement as modified
by this Amendment, and as set forth in the budget schedule below. Payment shall be calculated
based on the actual cost of the subconsultant, plus a fee of 10%, up to the not to exceed budget
amount for each task set forth below.
Subject to the Reservation of Rights and Set Aside provisions below, the amounts to be paid to
Consultant under the Contract and all Change Orders and Amendments thereto, including but not
limited to this Amendment, for all services and reimbursable expenses shall not exceed Six
Million, One Hundred Thousand, Eight Hundred Two Dollars ($6,100,802.00). Consultant
agrees to complete all services, including reimbursable expenses, within this amount provided
that in the event that testing, inspection, andlor other sub consultant services exceed the amount
allotted herein, the parties will negotiate a separate agreement for how such testing, inspection,
and other subconsultant services will be provided and paid for and provided further that in the
event the construction schedule is further extended, beyond the current anticipated completion
date of Decen1ber 31, 2013, through no fault of the Consultant, the parties shall negotiate in good
faith any further amendments to the Agreement that may be required. In the event City
authorizes any Additional Services, the maximum payment shall be increased by the amounts
properly authorized, but in any event shall not exceed Six Million, Three Hundred Thousand,
Eight Hundred Two Dollars $6,300,802.00.
RESERVATION OF RIGHTS
Any sums in whatever amounts actually paid to Consultant or paid to any set-aside account
under this Amendment No. Two to the Contract are specifically made without prejudice to the
City's right to claim that no such sums are payable hereunder by reason of the previously
executed Contract, including any amendments thereto, and without prejudice to Consultant's
right to claim that all such sums payable to Consultant under this Amendment are valid, payable
obligations by the City and that such additional sums are owed to Consultant. Nothing in this
Amendment prevents Consultant from making any claim for compensation for out-of-scope/extra
services for which it believes it is entitled.
AMENDMENT NO. TWO
CONTRACT I\JO. C10131396
Page 12
Any payment made by City to Consultant under this Amendment, either directly or to any set
aside account shall not affect in any way City's ability to assert it is not required to make such
payment under the Contract or any amendment thereto.
SET -ASIDE SUMS
Upon the timely, proper and documented invoicing by Consultant, and instead of making full
payments on such invoicing directly to Consultant, City will deposit the following amounts into
a "set-aside" account with the City (the "Set-Aside Account") as follows:
1) 50% of any amount paid to the Consultant under Subtask 3.2, up to the amount of 50% of
the total amount (of $348,000) for Subtask 3.2 provided for in this Amendment, or no more than
$174,000;
All other amounts properly invoiced shall be promptly paid to Consultant in accordance with the
terms of the Agreement.
The "Set-Aside Sum" will be held by the City in the Set-Aside Accolmt until such time as the
City and Consultant agree to release them or a ruling has been made as to the disposition of the
Set-Aside Amount in a binding dispute resolution proceeding between the parties. This
Amendment shall be considered joint set-aside account instructions and the signatures of both
parties or a ruling in a binding dispute resolution procedure will be required to release the funds
from the Set-Aside Account. The City shall, wi~hin three (3) business days of each deposit,
provide Consultant with written notice confirming the deposit of any and all funds into the Set
Aside Account described herein. The parties agree to promptly execute and provide all
documents reasonably requested and required by the City in order to administer (e.g., open,
deposit funds, release funds and close) the Set-Aside Amount described herein.
DISPUTE RESOLUTION
Notwithstanding the foregoing, if the City and Consultant have been unable to agree in writing to
the release of the Set-Aside Amount and/or entitlement to the funds paid by City to Consultant
subject to the Reservation of Rights as noted above, then within ninety (90) days after the City's
final resolution (e.g., the dates of any of the following: settlement agreement; judgment
following trial; or judgment following an award in binding arbitration) of any and all claims by
or against Contractor, the City and Consultant shall submit the dispute surrounding the Set-Aside
Amount and/or all Reservation of Rights funds noted above to final and binding arbitration to be
conducted by a single arbitrator from Judicial Arbitration and Mediation Services ("JAMS") of
San Jose, California, or any successor entity. The arbitrator shall be jointly selected by the City
and Consultant or, if they are unable to agree within fourteen (14) days of the first written
proposal of an arbitrator, appointed in accordance with the then-current JAMS arbitrator
appointment process and subject to all JAMS procedural and discovery rules then in effect.
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 13
This provision shall not be construed as an agreement to submit any other claims or actions
either party has or may have against one another to JAMS arbitration and such other claims or
actions shall be governed by the terms set forth in the Contract. The provisions of this Set-Aside
section of this Amendment shall survive the Term of the Contract and continue in effect until
final resolution of any and all claims and disputes described above.
AMENDMENT NO. TWO
CONTRACT 1\10. C10131396
Page 14
EXHIBITD
TO AMENDMENT NO. TWO
TOLLING AGREEMENT
This Tolling Agreement (the "Tolling Agreement") is entered into effective May
2013 (the "Effective Date") by and between the City of Palo Alto, a California chartered
municipal corporation ("City"), CDM SMITH INC, a Massachusetts corporation ("CDM
SMITH") (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. 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.
C10131396 between City and CDM SMITH (together with all amendments and exhibits, the
"Contract"), the design and development, bidding and construction of the Reservoir Pump
Station and Wells at El Camino Park and Mayfield Pump Station Augmentation (the
"Project"), and/or any pre-construction, construction management or closeout/warranty
services provided by CDM SMITH to City for the 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 Anderson Pacific Engineering Services, Inc. relating to the construction of the
Project are resolved through a finding that the time for presentation of such claims has
expired, through settlement, or through trial or binding arbitration, or this Tolling Agreement
is terminated under the terms of Paragraph 12 hereof, 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.
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 16
7. The Parties warrant that each of them has 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 (a "Tender") to CDM SMITH any claims it
receives from Anderson Pacific Engineering Services, Inc. under the indemnity provisions of
the Contract; however, notwithstanding any other provision herein, the acceptance or
rejection by CDM SMITH of such Tender shall constitute and effect a termination of this
Tolling Agreement effective upon sixty (60) days after receipt of such acceptance or
rejection.
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. Copies of signatures hereon shall be treated the same as originals.
12. From and after substantial completion of the Project, this Tolling Agreement may be
terminated at any time by any Party hereto upon thirty (30) 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 nlail, postage pre-paid, by UPS or Federal Express Overnight
delivery, at the addresses as listed in Paragraph 13. Any such notices sent via U.S. mail shall
be deemed received three (3) days after sending; sent via overnight mail shall be deemed
received the day after sending; sent via e-mail or facsimile shall be deemed sent the same day
as sending provided that a copy of such notice also is sent via U.S. Mail.
13. Notices under this Tolling Agreement shall be given as follows:
To City:
Office of the City Attorney
Attn: Molly Stump
250 Hamilton Avenue
Palo Alto, CA 94301
To CDM Smith:
CDM SMITH INC.
Attn: James S. Lacknlan, General Counsel
50 Hampshire Street
Cambridge, MA 02139
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 17
15. Each person executing this Tolling Agreement represents that he or she is fully authorized to
execute and deliver this Tolling Agreement on behalf of such person or entity.
IN WITNESS WHEREOF, the Parties have executed this Tolling Agreement effective as
of the Effective Date.
CITY OF PALO ALTO
By: __________________________ __
Name: --------------------------
Title: ----------------------------
Approved as to Form
By: _________ __
City Attorney
CDM SMITH INC.
B y:-+---+--=----=-+-"--~+t_--_I_:/_-------
Title: S~~r V.~ erel''iU-r/
AMENDMENT NO. TWO
CONTRACT NO. C10131396
Page 18