HomeMy WebLinkAbout2013/03/26 Item 07CITY COUNCIL
AGENDA STATEMENT
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3126/2013, Item
ITEM TITLE: PUBLIC HEARING TO CONSIDER WAIVING IRREGULARITIES IN
THE BIDS RECEIVED FOR THE "OTAY LAKES ROAD WIDENING,
PHASE II" PROJECT (CIP PROJECT NO. STM-355) PER CITY
CHARTER SECTION 1009
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA WAIVING IRREGULARITIES, ACCEPTING BIDS,
AWARDING THE CONTRACT FOR THE "OTAY LAKES ROAD
WIDENING, PHASE II" PROJECT (STM355) TO PORTILLO
CONCRETE, INC. IN THE AMOUNT OF $2,530,748.85, AND
WAIVING CITY COUNCIL POLICY 574-01 AND AUTHORIZING
THE EXPENDITURE OF ALL AVAILABLE CONTINGENCY FUNDS
IN AN AMOUNT NOT TO EXCEED $370,000.00
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING A REIMBURSEMENT AGREEMENT FOR
PAYMENT OF COSTS OF RELOCATION AND ADJUSTMENT OF
CERTAIN WATER FACILITIES BY AND BETWEEN THE OTAY
WATER DISTRICT AND THE CITY OF CHULA VISTA (OTAY
LAKES ROAD WIDENING PROJECT HASE 2)
SUBMITTED BY: DIRECTOR OF PUBLIC WORKS ~ "(~"
ASSISTANT DIRECTOR OF ENG RING ~j
REVIEWED BY: CITY MANAGER
ASSISTANT CITY MANAGER
4/STHS VOTE: YES ^ NO
SUMMARY
On February 28, 2013, the Director of Public Works received sealed bids for the "Otay Lakes
Road Widening, Phase II" (STM355) Project. The work to be done consists of the widening of
Otay Lakes Road from 750-feet south of East H Street to Telegraph Canyon Road, traffic signal
modifications, installation of raised medians, landscaping, and the relocation and adjustment of
potable and recycled water facilities on behalf of the Otay Water District. However, several of
the bids, including the apparent low bid, contained mathematical errors.
ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the proposed project for compliance with the
California Environmental Quality Act (CEQA) and has determined that the Otay Lakes Road
Phase II project qualifies for a Class 1(c) categorical exemption pursuant to Section 15301
[Existing Facilities] of the State CEQA Guidelines because the project consists of improvements
and reconfiguration to an existing roadway in compliance with the City's General Plan
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3/26/2013, Item 7
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Transportation Element and involving negligible expansion of an existing use. Thus, no further
environmental review is required.
RECOMMENDATION
Council conduct the public hearing and adopt the resolutions.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
Project Scope
The work to be done on this second and final phase of the Otay Lakes Road Widening project
will assure, along with traffic signal optimization, compliance with threshold standards under
buildout conditions and generally consists of:
• Completing the widening of Otay Lakes Road to six through-lanes (three lanes in each
direction) between East H Street and Apache Drive/Miracosta Circle;
• Widening the southbound segment of Otay Lakes Road to three through-lanes between
Apache Drive/Miracosta Circle and Telegraph Canyon Road;
• Adding an auxiliary "drop" lane in the northbound segment of Otay Lakes Road between
Telegraph Canyon Road and Apache Drive/Miracosta Circle;
• Adding anorthbound-to-westbound left-tum lane from Otay Lakes Road to Southwestern
College access driveways at Elmhurst Street and Gotham Street, including lengthening
the existing left-turn pocket to improve level of service through the intersections;
• Lengthening the existing southbound-to-eastbound dual left-turn pockets at the Otay
Lakes Road / La Media Road /Telegraph Canyon Road intersections;
• Modifying the existing traffic signals along Otay Lakes Road at Elmhurst Street, Gotham
Street, Apache Drive/Miracosta Circle, and Telegraph Canyon Road;
• Installing new raised medians and modifying existing raised median south of East "H"
Street to Telegraph Canyon Road;
• Modifying and improving landscaping; and,
• Relocation and adjustment of potable and recycled water facilities on behalf of the Otay
Water District with the limits of the roadway widening project.
Contractor Bids
On February 28, 2013, the Director of Public Works received nine (9) bids for the "Otay Lakes
Road Widening, Phase II" (STM355) Project. The following bids were received (in order of
lowest to highest bid amounts):
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3/26/2013, Item 7
Page 3 of 5
ACTUAL
CONTRACTOR BID AMOUNT CORRECTED BID
Error (Correction Increase or Decrease) (AT BID OPENING) (BID CHANGE)
Portillo Concrete, Ina -Lemon Grove, CA $2,5] 3,497.28 $2,530,748.85
Math Errors: Item 61 Tota] (-$28.23) (+$17,251.57)
Item 117 Total (+$5.00)
Grand Total(+$17,25].57)
L.B. Civil Construction -San Diego, CA $2,680,601.95 $2,680,799.95
Math Error: Grand Total (+$198.00) (+$198.00)
West Coast General Corporation -Poway, CA $2,696,969.25 $2,696,969.53
Math Error: Grand Total (+$0.28) (+$0.28)
Hazazd Construction -San Diego, CA $2,788,556.85 No Change
T.C. Construction -Santee, CA $2,891,411.00 No Change
Southland Paving, Inc.- Escondido, CA $3,127,510.96 $3,127,356.96
Clerical Error: Item 72 -Wrote Total Incorrectly (-$154.00)
Math Error: Grand Total (-$154.00)
Tri-Group Coast. & Dev. Inc.- San Diego, CA $3,195,001.00 $3,195,217.00
Math Errors: Item 6 Total (+$16.00) (+216.00)
Item 66 Total (+$800.00)
Clerical Error: Item 40 -Wrote Tota] Incorrectly
Math Error: Grand Total (+$216.00)
Daley Corporation- Lakeside, CA $3,384,496.39 $3,443,816.79
Math Errors: Item ] 5 (+$22,057.20) (+$59,320.00)
Item 104 (+$5,940.00)
Item 170 (-$80.00)
Grand Total (+$59,320.00)
PAL Engineering -San Diego, CA $3,596,219.96 $3,750,219.96
Math Error: Bid Item 128 (+$154,000.00) (+$154,000.00)
Of the nine bids received, seven contained mathematical and/or clerical errors (see above table),
but these errors did not affect the overall ranking of the contractors' bids. The corrected low bid
submitted by Portillo Concrete, lnc., is below the Engineer's estimate of $2,888,000 by about
$357,000 (approximately 12%) and is $150,000 lower then second lowest bidder's proposal.
Therefore, staff recommends that a public hearing be held to consider waiving bid irregulazities,
that the bid irregularities be waived and the bids accepted, and that a public works contract be
awarding to Portillo Concrete, Inc. in the amount of $2,530,748.85. Portillo Concrete Inc. has
satisfactorily completed previous City projects of a similar nature. The Contractor's License No.
680144 is current and active.
Change Order Authority
The first resolution, if approved, would also authorize the Director of Public Works to approve
change orders over and above existing policy limits. Under City Council Policy No. 574-01, if
an individual change order causes the cumulative increase in change orders to exceed the
Director's authority ("Maximum Aggregate Increase in Change Orders"), then City Council
approval is required. The corresponding maximum aggregate contract increase that may be
approved by the Director of Public Works under Policy No. 574-01 is $149,537.44. Approval of
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the resolution would waive City Council Policy 574-01 and authorize the Director of Public
Works to expend all available contingency funds in an amount not to exceed $370,000, an
increase of $220,462.56 over Policy No. 574-01. Increasing the contingency funds will allow
staff to continue the project without delay should unforeseen circumstances resulting in increased
project costs azise during the course of construction, as well as make adjustments to bid item
quantities. Unforeseen conditions include such items as utility conflicts, hazardous materials,
unexpected underground conflicts, etc. If the contingency funds aze not used, then they will be
returned to the project fund ba]ance.
Relocation and Adiustment of Otay Water District Facilities
The second resolution, if approved, would provide a mechanism by which the City's contractor
would relocate and adjust the Otay Water District's (OWD's) potable and recycled water
facilities in conflict with the City's street improvements. The contractor would include
relocation and adjustment of these OWD facilities within its schedule; which would assure the
timely completion of this work and reduce the risk of potential construction delays. The
agreement requires that OWD pay the City 110% of OWD's facility relocation and adjustment
costs prior to the start of construction for this work. Based upon the lowest bid received, this
amount would be $97,350. If any portion remains at the completion of construction, it will be
returned to OWD. Conversely, if additional costs are incurred due to unknown conditions or
additional relocation and adjustment work, the proposed agreement requires OWD to provide
additional funds to cover these costs.
OWD's Board of Directors will consider approval of this agreement at its April meeting-, the
agreement has been approved by OWD's legal counsel. If the reimbursement agreement is not
approved by OWD's Boazd, then the work involving OWD's facilities will be deleted from the
public works contract and OWD will be responsible to perform the work in a timely manner.
Project Funding
The following funds are needed to complete construction:
Base Contract $ 2,530,748.85
Contract Contingencies (14.6% of Base Contract) $ 370,000.00
Staff Chazges (Contract Administration/Inspection, Design Support, Surveying) $ 325,000.00
Material Testing $ 71,60].15
TOTAL FUNDS NEEDED FOR CONSTRUCTION $3,297,350.00
The current project balance available for construction is $2,200,000 and is insufficient to cover
construction costs. The FY2012-13 CIP budget for this project anticipated that an additional
$800,000 in TDIF funding would be needed in FY 2013-14 for construction, as well as an
additional $3,400,000 identified as future funding should a third northbound lane be required
between Telegraph Canyon Road and Apache Drive/Miracosta Circle to meet threshold
standazds at buildout. Additional traffic modeling has shown the future funding to be
unnecessary because the improvements currently proposed for construction, along with traffic
signal optimization and future lengthening of turn lanes on La Media Road and Telegraph
Canyon Road will be sufficient to meet buildout threshold standards.
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3/26/2013, Item
Page 5 of 5
TDIF-eligible construction costs totals $3,000,000 for the proposed scope of work. In order to
minimize disruption to the public in the near future for programmed overlays for the portions of
the roadway that cannot be overlayed using TDIF funds (i.e., not necessazy to complete the
widening work), staff proposes that $200,000 in TransNet funding be added to the project in the
FY2013-14 CIP.
Therefore, the proposed funding is as follows:
Prior Proposed
Funding Source Appropriations F]'2013-14 Totals
Transportation Development Impact Fee (TDIF) $2,20Q,000* $800,000 $3,000,000
TransNet (for overlay beyond TDIF eligibility limits) $200,000 $ 200,000
Otay Water District $ 97,350 $ 97,350
TOTAL CONSTRUCTION FUNDS $2,200,000 $997,350 $3,297,350
* Project Account Balance Available for Construction
Disclosure Statement
Attached is a copy of the contractor's Disclosure Statement as Attachment 1.
Wage Statement
The sources of funding for this project are Transportation Development Impact Fees (TDIF),
TransNet Funds, and an Otay Water District payment of $97,350 to the City. Contractors
bidding this project are not required to pay prevailing wages to persons employed by them for
the work under this project. Disadvantaged businesses were encouraged to bid by sending
"Notice to Contractors" to vazious trade publications.
DECISION MAKER CONFLICT
Staff has reviewed the property holdings of the City Council and has found no property holdings
within 500 feet of the boundazies of the properties, which aze the subject of this action. Staff is
not independently aware, nor has staff been informed by any Councilmember; of any other fact
that may constitute a basis for a decision maker conflict of interest in this matter.
CURRENT FISCAL IMPACT
The current project balance for STM355 is approximately $2,200,000 in TDIF. With the
additional funding proposed from TransNet of $200,000 and TDIF of $800,000 for inclusion in
the FY2013-14 CIP, including a payment of $97,350 from the Otay Water District, sufficient
funds of $3,297,350 will be available to complete construction. There is no direct fiscal impact
to the General Fund.
ON-GOING FISCAL IMPACT
Upon completion of the project, the improvements will require only routine City maintenance of
street facilities.
ATTACHMENTS
1. Contractor's Disclosure Statement
2. Proposed Reimbursement Agreement
Prepared by: Kirk Ammerman, Principal Civi! Engineer, Public Works-Engineering
1:\Engineer\.AGENDA\CAS2013\03-26-13\STM355 PH 2 Contract AwardREV.docx
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City of Chula Vista Disclosure Statement
Pursuant to Council Policy 10!-Ol, prior to any action upon matters that will require discretionary action
by the Council, Planning Commission and all other official bodies ofthe City, a statement of disclosure of
certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista
election must be filed. The following information must 6e disciased:
l . List the names of all persons having a financial interest in the property that is the subject of the
application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier.
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2. if any person* identified pursuant to (1) above is a corporation or partnership, list the names of a!1
individuals with a $2000 investment in the business (corporation partnership) entity.
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3, if any person* identified pursuant to (1) above is anon-profit organization or trust, lisf the names
of any person serving as director of the non-profit organization or as trustee or beneficiary or
trustor of the trust.
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4. Please identify every person, including any agents, employees, consultants, or independent
contractors you have assigned to represent you before the City in this matter.
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5. Has any person* associated with this contract had any financial dealings with an official** of the
City of Chula Vista as it relates to this contract within the past 12 months? Yes No
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Q:\Gneincerine\AIl Projwts\STM\STM355\PhIASf B ftNAL 1-23-1i\SPL'CIPtCA'f'IOMS'rM3>5-Phase-ll-NomPrev-Coniracl-
Specs (em).doc
7-6
!f Yes, briefly describe the nature of the financial interest the official** may have in this contract.
6. Have you made a contribution of more than $250 within the past twelve (12) months to a current
member of the Chula Vista City Council? No ~ Yes _ If yes, which Council membet?
Have you provided more titan $340 (or an item of equivalent value) to an official** of the City
of Chula Vista in the past hvelve (12) months? (This includes being a source of income, money to
retire a legal debt, gih, loan, etc.) Yes __ No ~_
If Yes, which official** and what was the nature of item provided?
Date: ®~ I Z8 ( ~ .2.> <~y~ t ~" - _ Cj 6
Signature of Contractor/Applicant
Mr~tta td~Tkt~ca
Print or type Warne of Contractor/Applicant
Person is defined as: any individual, firm, co-partnership, joint venture, association, social club,
fraternal organization, corporation, estate, trust, receiver; syndicate, any other county, city,
municipality, district, or other political subdivision, -or any other group or combination acting as
a unit.
** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner,
Member of a board, commission, or committee of the City, employee, or staff members.
36
Q:~FingincerinelAll Projects.STM\STM35i~PIinSfi tl PJNAI. 143-13\SPECIFICATIOMSTM3S5-Phase-ll-Non-!'rev-Contract-
Spccs(cm).doc
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REIMBURSEMENT AGREEMENT FOR PAYMENT OF COSTS OF RELOCATION
AND ADJUSTMENT OF CERTAIN WATER FACILITIES BY AND BETWEEN
THE OTAY WATER DISTRICT
AND THE CITY OF CHULA VISTA, CALIFORNIA
(OTAY LAKES ROAD WIDENING PROJECT, PHASE 2)
THIS REIMBURSEMENT AGREEMENT FOR THE PAYMENT OF COSTS FOR
RELOCATION AND ADNSTMENT OF OTAY WATER DISTRICT FACILITIES, dated
2013, is entered into by and between the Otay Water District
("District") and the City of Chula Vista, a municipal corporation, ("City") to establish terms
and conditions pursuant to which City will bid and cause to be constructed certain District
Facilities, defined herein below, and District will reimburse City for all expenses related
thereto. District and City may be referred to herein individually as "Party" and collectively
as the "Parties."
RECITALS
WHEREAS, District has approved, within its Capital Improvement Program ("CIP"),
the relocation and adjustment of certain existing, reclaimed and potable water facilities
("Existing District Facilities") within the City of Chula Vista; and
WHEREAS, District is authorized, pursuant to applicable laws, to contract and to pay
for all or part of the cost of the installation, relocation, adjustment, and construction of any
building, facility, structure or other improvements required by District in connection with a
District service; and
WHEREAS, City is constructing improvements to Otay Lakes Road between East H
Street and Telegraph Canyon Road. These improvements include, but are not limited to,
roadway widening, construction of curb, gutter, sidewalk, and median islands, construction of
retaining walls, relocation of utilities, and reconfiguration of traffic signals and street lighting
("City Improvements"); and
WHEREAS, the relocation and adjustment of District Facilities ("District Project")
concurrently with City Improvements would constitute a substantial benefit to District and
the City, which benefits include, but are not limited to, reductions or savings in terms of time,
money, construction hazards, and traffic impacts; and
WHEREAS, in order to achieve such benefits, District desires that City incorporate
the relocation and adjustment Existing District Facilities into the construction documents and
contract for City Improvements; and
WHEREAS, City is willing to incorporate the District Project into the contract for
City Improvements, provided District submits complete plans and specifications for the
District Project and agrees to reimburse City for all associated costs; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed by and between the Parties hereto, as follows:
7-8
Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
ARTICLE I. DEFINITIONS
1.] Definitions. Unless the context otherwise requires, the terms defined in this Section 1
shall, for all purposes of this Reimbursement Agreement and of any amendment hereto,
and of any certificate, opinion, estimate or other document herein mentioned, have the
meanings herein specified.
"District" means the Otay Water District, a municipal water district duly organized and
existing under the Municipal Water District Law of 1911, as set forth in the California
Water Code.
"City" means the City of Chula Vista, California, a chartered municipal corporation duly
organized and existing under and by virtue of the Constitution and Laws of the State of
California.
"City Improvements" means, collectively, the improvements to Otay Lakes Road
between East H Street and Telegraph Canyon Road (Phase 2 of City CIP Project No.
STM-355).
"District Costs" means the total dollar amount of costs associated with the District
Project, including, but not limited to, costs of materials, labor, oversight, bidding,
permits, change orders, and the fair share of Joint Costs.
"District Project" means the relocation and adjustment of District's potable and recycled
water facilities within Otay Lakes Road between East H Street and Telegraph Canyon
Road and are fully funded in District's CIP as "CI,P P2496, Otay Lakes Road Utility
Relocations" and "CIP R2094, Potable Irrigation Meters to Recycled Conversion."
"Existing District Facilities" means the following potable and recycled water facilities to
be relocated or adjusted:
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ddjust valve Bate well lids m new erode 1 ? 2 1 I '' 3 12
Reloca[a meter{1"sen~icelto belilnd new sidewalk I l 1 5 8 ~~
elocate meter {~° setvicelto behind new sidewakl A 4
elocate ?-itch blowo2Fto behind new sidewall: 1 1 2
elocate a-inch blowofFro behind naw sidewalg ] I
elocate fire hvdmnt to behind new sideureIX i 1
Adjust vault to new sidewall; wade 7 1 2
Recsded Rater
Adjust valve Bate well lids to nesr-evade 1 _ 5
elocate meter i?"sertice}to behind new sidewall: 1 3
elocate 2-arch air vac [o behind new sidewalk 1 1
elocate ?-arch blowoff m behind new sidewalk 1 I
tu[a0 void[ and RW meter ou 6" sen~ice (eault and
eater provided by OWD}
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7-9
Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
"Joint Costs" means those costs of relocations and adjustment of the Project, which, due
to their nature, cannot be attributed solely to District Project or City Improvements, yet
from which both derive benefit or those costs that both Parties would have incurred had
their respective facilities been constructed independently of each other (e.g. slurry seal
would have been necessary to cover the District's trench and would also have been
required for the City's street).
"Project" means, collectively, District Facilities and City Improvements.
ARTICLE II. PRECONSTRUCTION
2.1 Design and Specifications -Generally. Prior to advertisement of a Request for Proposals
("RFP") for the construction and installation of Project, District shall submit designs and
all associated plans and specifications (collectively "Construction Documents") for the
District Project to the City.
2.1.1 Approval. Prior to submission, an authorized representative of District shall
approve the Construction Documents, submittal of which shall indicate such
approval and grant to the City permission to include the Construction Documents
in the RFP.
2.1.2 Design and Preparation Costs. All costs associated with the design of a Party's
facilities and the preparation of Construction Documents shall be borne solely by
such Party.
2.1.3 Bidding and Award -City shall be responsible for all aspects of bidding and
award of a contract for the construction and installation of the Project
("Construction Agreement").
2.1.3.1 Bid Package. City shall be responsible fpr preparing and circulating the
bid package.
2.1.3.2 Meetings. City shall organize all pre-bid meetings and shall inform the
District of the time and date of such meeting, so that a representative of
the District may be present to clarify any issues related to and prepare
addenda for the construction of the District Facilities.
a. Additional Costs. Any additional costs associated with the failure
of District to attend meetings, clarify issues, or submit addenda to
City for distribution shall be the obligation of the District.
2.1.3.3 Selection of Lowest Responsible Bidder. City, at its sole discretion,
shall determine the lowest responsible bidder, which determination
shall be binding on the District.
2.1.3.4 Execution of Construction Agreement City shall be responsible for
executing the Construction Agreement on the behalf of itself and the
District and ensure that the District is identified as a third-party
beneficiary of such agreement with the same rights and remedies as the
City.
3
7-10
Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
ARTICLE III. CONSTRUCTION
3.1 Compliance with Specifications. City will include provisions in the Construction
Contract that require that the relocations and adjustments associated with the District
Project by City's contractor shall be in strict compliance with the approved plans and
specifications provided by District, that al] materials furnished by City's contractor shall
conform to District's approved material list, and that any and all deviations from said
plans and specifications must be approved by District, in writing, prior to being
incorporated into the work.
3.1.1 Right to Enforce. District shall have the right to enforce the terms of Section 3.1
against the Citys contractor in the same manner as the City, and pursuant to
Section 11.17 such rights shall be written into the Construction Contract.
3.2 Project Completion and Warranty. District and City anticipate that Project will be
completed on or about December 31, 2013. Project, however, will not be deemed
completed or accepted until both City and District have accepted their respective
facilities or improvements. The City's contractor shall warrant all work for a period of no
less than one year from the date of acceptance, which shall be deemed to be the latter of
the dates District and City accept their work performed and facilities constructed
pursuant to the Construction Agreement. Acceptance will be evidenced by the filing of a
Notice of Completion by the City with the County of San Diego Recorder. The
Construction Contract shall include this definition of project completion and acceptance.
ARTICLE IV. REIMBURSEMENT OF COSTS
4.1 Deposit Account. Within thirty (30) calendaz days of the Construction Agreement
award, District shall deposit with the City an amount equal to one hundred (100) percent
of the bid amount attributable to the relocation and adjustment of District Facilities, plus
a ten (10) percent contingency ("District Deposit") for the purpose of reimbursing the
City for progress payments made by City to City's contractor associated with the District
Project.
4.2 Invoice. City shall invoice the District for District Costs ("City Invoice") following the
receipt of an invoice from City's contractor on which such District Costs appear. The
City Invoice shall:
4.2.1 Include a copy of the contractor's invoice.
4.2.2 Identify those costs attributable to the District's Project.
4.2.3 Show calculations apportioning the District s fair share of Joint Costs.
4.2.3.1 Apportionment of Joint Costs. Joint Costs may be apportioned as
follows:
a. When a percentage of use can be determined, Joint Costs shall be
apportioned based on the respective percentages of use.
4
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Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
b. When work is equally necessary for both the installation and
construction of City Improvements and the District Project, Joint
Costs shall be divided equally.
c. Based on the respective percentages of Total Project Costs.
d. Other methods to which the Parties mutually agree.
4.2.4 Provide a net total charge payable by District.
4.3 District Approval. District shall review and approve the City Invoice within thirty (30)
calendar days of its receipt ("Review Period"). If District determines that all relevant
documents have not been submitted, District shall inform the City of the need for
additional information and specify the documents/information necessary to permit
review and approval.
4.3.1 Failure to Approve. If District fails to approve the City Invoice or request
additional information within the Review Period, the charges on the City Invoice
shall be deemed approved.
4.4 Reimbursement. Following District approval of a City Invoice, City shall deduct the
invoice amount from the District Deposit for the purpose of reimbursing the City for
District Costs invoiced by and paid to City's contractor. District approval of a City
Invoice shall be deemed District's authorization for such reimbursement in the amount of
the City Invoice.
4.4.1 Withholding/Retention. From each payment to the contractor, City shall
withhold a minimum of five (5) percent of the amount of the contractor's invoice.
Payment thereof shall not be made until final approval and acceptance. A similar
retention shall be withheld from the reimbursement to the City from District
Deposit.
4.5 Use of Project Contingency. The Project Contingency may be used for unforeseen
changes in work; however it shall not be used for: (i) work required due to contractor's
failure to perform work or services according to the terms of the Construction Agreement
and/or in compliance with the Construction Documents; or (ii) uninsured losses resulting
from the negligence of contractor.
ARTICLE V. CHANGE ORDERS
5.1 Written Approval of Construction Changes and Change Orders. With the exception of
Emergencies, prior to the approval of a construction change or change order concerning
or affecting District Project, including any changes to City Improvements that might
affect District Project in any way, City shall obtain the written consent of District.
5.1.1 Approval of Change Orders. District shall respond to a change order request
within five (5) working days of the date it is received by District.
5.1.2 Additional Costs. District will bear any increased costs due to a delay in
approving a properly submitted construction change and/or change order request.
5
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Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
5.2 Changes in Emergencies. City may authorize contractor to proceed with any proposed
construction changes and or change orders, without consulting with District or obtaining
the District's written approval, if failure to act immediately would pose a danger to the
public, as determined in the sole discretion of the City, or result in delays and cost
overruns (collectively "Emergency"); however, the City shall use best efforts to
immediately, or as soon as reasonably possible, inform the district the changes. The
District shall be responsible for any increased costs of construction of their portion of
Project due to an Emergency.
5.3 Errors and Omissions. City shall not make payment to contractor or charge District for
any costs or expenses of a Change Order resulting from an error or omission for which
the contractor is solely responsible.
ARTICLE VI. INSPECTION
6.1 Inspection Team. District shall appoint an individual or team responsible for inspections
and approving installation of District Facilities.
6.2 Inspection Stages and Obligations. District shall have the right to conduct inspections of
the District Project and construction methods pertaining thereto as deemed necessary by
District. District shall provide copies of all District inspections to City within five (5)
working days of an inspection. District shall be responsible for verifying that all work on
District Project is completed in accordance with the approved plans and specifications. It
is specifically understood that District's inspectors shall have the authority to enforce
District's plans and specifications for District Project, which authority shall include the
authority to require that any and all unacceptable materials, workmanship, and/or
installation be replaced, repaired, or corrected by City's contractor without cost to
District and/or City.
6.3 Inspection Costs. All inspection costs incurred by District will be borne by District.
6.4 Notification. The Parties agree to develop mutually acceptable procedures, for
notification of inspections required or deemed necessary by either Party.
ARTICLE VIL INSURANCE
7.1 Contractor's Insurance. City shall ensure that its contractor provides evidence of
insurance coverage, as required by City, for the entire construction and, if applicable,
warranty period. Such insurance shall, at a minimum, include a comprehensive general
liability policy in an amount sufficient to cover all contractual obligations of the
contractor under the construction contract, and no less than $2,000,000. The policy of
insurance shall name District and City, and their respective employees, officers,
governing body members, and agents as additional insureds, require a waiver of
subrogation, and be primary insurance. Furthermore, City shall obtain evidence that the
contractor maintains worker's compensation insurance in accordance with applicable
requirements of law.
7.2 Parties' Insurance. District and City shall maintain insurance as customary in connection
with their respective facilities.
6
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Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
ARTICLE VIII. INDEMNITY
8.1 Indemnity. Each Party hereto agrees to defend, indemnify, protect, and hold harmless
("Indemnitot") the other Party, its agents, officers, and employees ("Indemnitees") from
and against any and all claims asserted or liability established for damages or injuries to
any property or person, including death or dismemberment, which arise from or are
caused by the negligent acts or omissions or willful misconduct of the Indemnitor's
agents, officers or employees, in performing the work or services herein and all expenses
of investigation and defending against same; provided, however, that each Party's duty to
defend, indemnify and hold harmless the other shall not include any claims or liability
arising from the sole negligence or willful misconduct of the other Indemnitee, its agents,
officers or employees. District and City agree that in the event of anyjoint or concurrent
negligence, they will apportion any established or agreed upon liability proportionate to
their respective degree of fault. For the purposes of this provision, the City's contractor
shall not be considered an agent of the City or District. Claims related to the actions or
omissions of the City's contractor shall be address through provisions in the
Construction Contract, which provisions shall include indemnity, defense, and hold
harmless provisions from the City's contractor in favor of both the City and District.
8.2. Enforcement Costs. Indemnitor agrees to pay any and all costs City incurs enforcing the
indemnity and defense provisions set forth in Article V.
8.3. Survival. Indemnitor's obligations under Article V shall survive the termination of this
Agreement.
ARTICLE IX. RECORDS
9.1 Retention of Records. City shall require contractor to maintain data and records related
to this Construction Agreement for a period of not less than three (3) years following
receipt of final payment.
9.2 Audit of Records. City shall make available and shall require that its contractor make
available to District for examination at reasonable locations within the County of San
Diego and at any time during normal business hours and as often as the District deems
necessary, all of the data and records with respect to all matters covered by this
Agreement and the Construction Agreement. City and contractor will permit the District
to make audits of all invoices, materials, payrolls, records of personnel, and other data
and media relating to all matters covered by this Agreement and the Construction
Agreement.
ARTICLE X. NOTICES
10.1 Writing. Any demand upon or notice required or permitted to be given by one Party to
the other Party shall be in writing.
10.2 Effective Date. Except as otherwise provided by law, any demand upon or notice
required or permitted to be given by one Party to the other Parry shall be effective: (i)
on personal delivery, (ii) on the second business day after mailing by certified or
registered U.S. Mail, return receipt requested, (iii) on the succeeding business day after
7
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Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
mailing by Express Mail or after deposit with a private delivery service of general use
(e.g., Federal Express) postage or fee prepaid as appropriate, or (iv) upon successful
transmission of facsimile.
10.3 Recipients. All demands or notices required or permitted to be given shall be sent to all
of the following:
10.3.1 District:
Otay Water District
2554 Sweetwater Springs Boulevard
Spring Valley, California 91978
Fax:619-670-8920
Attention: District Project Manager
7 0.3.2 City:
City of Chula Vista, Public Works -Engineering, 276
Fourth Avenue
Chula Vista, Califomia 91910
Fax: (619)691-5171
Attention: City Project Manager and Director of Public Works.
10.4 Change of Address(es). Notice of change of address shall be given in the manner set
forth in this Article.
ARTICLE XL MISCELLANEOUS
11.1 Headings. All article headings are for convenience only and shall not affect the
interpretation of this Agreement.
]].2 Gender & Number. Whenever the context requires, the use herein of (i) the neuter
gender includes the masculine and the feminine genders and (ii) the singular number
includes the plural number.
11.3 Reference to Paragraphs. Each reference in this Agreement to a section refers, unless
otherwise stated, to a section of this Agreement.
11.4 Incorporation of Recitals. All recitals herein are incorporated into this Agreement and
are made a part hereof.
11.5 Covenants and Conditions. All provisions of this Agreement expressed as either
covenants or conditions on the part of the City or the District, shall be deemed to be
both covenants and conditions.
11.6 Integration. This Agreement and the Exhibits and references incorporated into this
Agreement fully express all understandings of the Parties concerning the matters
covered in this Agreement. No change, alteration, or modification of the terms or
conditions of this Agreement, and no verbal understanding of the Parties, their officers,
8
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Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
agents, or employees shall be valid unless made in the form of a written change agreed
to in writing by both Parties or an amendment to this Agreement agreed to by both
Parties. All prior negotiations and agreements are merged into this Agreement.
11.7 Severability. The unenforceability, invalidity, or illegality of any provision of this
Agreement shall not render any other provision of this Agreement unenforceable,
invalid, or illegal.
11.8 Drafting Ambiguities. The Parties agree that they are aware that they have the right to
be advised by counsel with respect to the negotiations, terms and conditions of this
Agreement, and the decision of whether or not to seek advice of counsel with respect to
this Agreement is a decision that is the sole responsibility of each Party. This
Agreement shall not be construed in favor of or against either Party by reason of the
extent to which each Party participated in the drafting of the Agreement.
11.9 Conflicts Between Terms. If an apparent conflict or inconsistency exists between the
main body of this Agreement and the Exhibits, the main body of this Agreement shall
control. If a conflict exists between an applicable federal, state, or local law, rule,
regulation, order, or code and this Agreement, the law, rule, regulation, order, or code
shall control. Varying degrees of stringency among the main body of this Agreement,
the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and
the most stringent requirement shall control. Each Party shall notify the other
immediately upon the identification of any apparent conflict or inconsistency
concerning this Agreement.
11.10 Prompt Performance. Time is of the essence of each covenant and condition set forth in
this Agreement.
11.11Good Faith Performance. The parties shall cooperate with each other in good faith, and
assist each other in the performance of the provisions of this Agreement.
11.12 Further Assurances. City and District each agrees to execute and deliver such
additional documents as may be required to effectuate the purposes of this Agreement.
11.13 Exhibits. Each of the following Exhibits is attached hereto and incorporated herein by
this reference:
None.
11.14 Controlling Law. The laws of the State of Califomia shall govern and control the
terms and conditions ofthis Agreement.
11.15 Jurisdiction, Venue, and Attorney Fees. The venue for any suit or proceeding
concerning this Agreement, the interpretation or application of any of its terms, or any
related disputes shall be in the County of San Diego, State of Califomia. The
prevailing Party in any such suit or proceeding shall be entitled to a reasonable award
of attorney fees in addition to any other award made in such suit or proceeding.
9
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Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
1 1.16 Agency/Municipal Powers. Nothing contained in this Agreement shall be constmed as
a limitation upon the powers of the District or the City as a chartered city of the State
of California.
11.17 Third Party Relationships. Nothing in this Agreement shall create a contractual
relationship between City or District and any third party; however, the City shall
ensure that the District is an intended third party beneficiary of the Construction
Agreement and shall share all of the rights and benefits of the City with respect to the
contractor.
11.18 Limitation on District Remedies and Waiver of Claims. District understands that the
sole purpose of this Agreement is to establish a method to reimburse the City for
obligations of the District for payment of the costs of the installation and construction
of District Facilities, which costs would otherwise be due directly to the City's
contractor. In accordance with such purpose, the District agrees that its sole remedy
for construction defects, breach by City Contractor, damage to property or persons,
including death, to district personnel or any third parties, or other claims arising out of
or related to the work performed to install and/or construct District Facilities shall be
against the City's contractor or its subcontractors and agents, and, hereby, waives any
and all claims it may hereafter have against the City, arising out of the same, except for
those claims arising out of the sole negligence or sole willful misconduct of the City.
District, hereby, expressly waives all claims against the City identified in Section
11.18:
DISTRICT REPRESENTA
DATE:
11.19 Non-Assignment. Except as relates to the Construction Agreement, the City shall not
assign the obligations under this Agreement.
11.20 Successors in Interest. This Agreement and all rights and obligations created by this
Agreement shall be in force and effect whether or not any Parties to the Agreement
have been succeeded by another entity, and all rights and obligations created by this
Agreement shall be vested and binding on any Party's successor in interest.
11.21 No Waiver. No failure of either the City or the District to insist upon the strict
performance by the other of any covenant, term or condition of this Agreement, nor
any failure to exercise any right or remedy consequent upon a breach of any covenant,
tens, or condition of this Agreement, shall constitute a waiver of any such breach of
such covenant, term or condition. No waiver of any breach shall affect or alter this
Agreement, and each and every covenant, condition, and teen hereof shall continue in
full force and effect to any existing or subsequent breach.
11.22 Administrative Claims Requirements and Procedures. No suit or arbitration shall be
brought arising out of this agreement, against the City unless a claim has first been
presented in writing and filed with the City and acted upon by the City in accordance
with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as
10
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Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
same may from time to time be amended, the provisions of which are incorporated by
this reference as if fully set forth herein, and such policies and procedures used by the
City in the implementation of same. Upon request by City, District shall meet and
confer in good faith with City for the purpose of resolving any dispute over the terms
of this Agreement.
11.23 Dispute Resolution. If a dispute arises out of or relates to this Agreement, or the
breach thereof, the Parties, following the procedures required by Section 11.22, agree
to engage in good faith negotiations to attempt to resolve the dispute. In the event of
any action at law or in equity, including an action for declaratory relief, between the
Parties arising out of or relating to this Agreement, then the prevailing party in such
action will be entitled to recover from the other party a reasonable sum as attomeys'
fees and costs. The prevailing party will be determined in accordance with Civil Code
Section 1717(b)(1) or any successor statute. The prevailing party will also be entitled
to its reasonable attomeys' fees and costs in any post judgment proceedings to collect
or enforce the judgment. This provision is separate and will survive the merger of this
Agreement into any judgment on this Agreement.
11.24 Administration of Contract. City hereby designates Kirk Ammerman, Principal Civil
Engineer, as City Project Manager for the construction of Project and as the primary
contact for all matters relating to this Agreement, including the submittal of City
invoices for reimbursement.
District hereby designates Ron Ripperger as District Project Manager for District
Facilities and as the primary contact for all matters relating to this Agreement,
including the processing, documenting, and approval of City invoices.
11.25 Signing Authority. The representative for each Party signing on behalf of such Party
hereby declares that authority has been obtained to sign on behalf of the City and/or
District, as applicable and agrees to hold the other Party or Parties hereto harmless if it
is later determined that such authority does not exist.
11
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Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
IN WITNESS WHEREOF, City and District have executed this Agreement thereby
indicating that they have read and understood same, and indicate their full and complete
consent to its terms:
City of Chula Vista
Dated:
By:
Cheryl Cox, Mayor
Attest:
Donna Norris, City Clerk
Approved as to form:
Bart Miesfeld, City Attorney
Dated:
Otay Water District,
By:
Approved as to form:
District Counsel
Dated:
IN WITNESS HEREOF, City and District have executed this Reimbursement
Agreement to be effective as of the day and year first above written.
CITY OF CHULA VISTA
By:
Cheryl Cox, Mayor
Attest:
Donna Norris, City Clerk
Approved as to form:
City Attorney
OTAY WATER DISTRICT
By:
Mark Walton, General Manager
12
7-19
Reimbursement Agreement for Relocation & Adjustment of Certain Water Facilities by and between
the Otay Water District and the City of Chula Vista - Otay Lakes Road Widening Project, Phase 2)
IN WITNESS WHEREOF, City and District have executed this Agreement thereby
indicating that they have read and understood same, and indicate their full and complete
consent to its terms:
City of Chula Vista
Dated:
By:
Cheryl Cox, Mayor
Attest:
Donna Norris, City Clerk
Approved as to form:
Glen R. Googins, City Attorney
Dated:
Otay Water District,
By:
Approved as to form:
District Counsel
IN WITNESS HEREOF, City and District have executed this Reimbursement
Agreement to be effective as of the day and year first above written.
CITY OF CHULA VISTA
By:
Cheryl Cox, Mayor
Attest:
Donna Norris, City Clerk
Approved as to form:
City Attorney
OTAY WATER DISTRICT
By:
Mark Walton, General Manager
12
~-20
RESOLUTION NO. 2013-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING IRREGULARITIES, ACCEPTING
BIDS, AWARDING THE CONTRACT FOR THE "OTAY
LAKES ROAD WIDENING, PHASE II" PROJECT (STM355)
TO PORTILLO CONCRETE, INC. EJ THE AMOUNT OF
$2,530,748.85, AND WAIVING CITY COUNCIL POLICY 574-
01 AND AUTHORIZING THE EXPENDITURE OF ALL
AVAILABLE CONTINGENCY FUNDS IN AN AMOUNT
NOT TO EXCEED $370,000.00
WHEREAS, City staff prepared specifications for the "Otay Lakes Road Widening -
Phase 2" Project (STM355) and advertised the project on February 1, 2013; and
WHEREAS, on February 28, 2013, the Director of Public Works received nine (9) sealed
bids for the project as follows:
CONTRACTOR BID AMOUNT
(AT BID OPENING) ACTUAL BID
(CORRECTED)
Portillo Concrete, Ina -Lemon Grove, CA $2,513,497.28 $2,530,748.85
L.B. Civil Construction -San Diego, CA $2,680,601.95 $2,680,799.95
West Coast General Corporation -Poway, CA $2,696,969.25 $2,696,96953
Hazard Construction -San Diego, CA $2,788,556.85 No Change
T.C. Construction -Santee, CA $2,891,411.00 No Change
Southland Paving, Inc.- Escondido, CA $3,127,510.96 $3,127,356.96
Tri-Group Const. & Dev. Inc.- San Diego, CA $3,195,001.00 $3,195,217.00
Daley Corporation- Lakeside, CA $3,384,496.39 $3,443,816.79
PAL Engineering -San Diego, CA $3,596,219.96 $3,750,219.96
WHEREAS, the apparent low bid of $2,513,497.28 submitted by Portillo Concrete, Inc.
of Lemon Grove, CA was determined during review of bid proposals to contain minor math
errors: and
WHEREAS, seven (7) of the nine (9) bids were determined during review of bid
proposals to contain minor math and/or clerical errors, but did not affect the ranking of the bids;
and
WHEREAS, Portillo Concrete, Inc.'s actual (corrected) bid of $2,530,748.85 is
approximately $150,000 lower than the second lowest corrected bid; and
WHEREAS, staff recommends that bid irregularities be waived as inunaterial, that bids
be accepted, and that the contract for the "Otay Lakes Road Widening, Phase II" project be
awarded to Portillo Concrete, Inc.; and
WHEREAS, the low bid submitted by Portillo Concrete, Inc. is below the Engineer's
estimate of $2,888,000 by approxnnately $357,000, or approximately 12%; and
7-21
WHEREAS, Portillo Concrete, Inc. has satisfactorily completed previous City projects of
a similar nature and its Contractor's License No. 680144 is current and active.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby waive irregularities, accept bids, and award the contract for the "Otay Lakes
Road Widening, Phase II" Project to Portillo Concrete, Inc. in the amount of $2,530,748.85.
BE IT FURTHER RESOLVED, that the City Council of the City Of Chula does hereby
waive Council Policy 574-O1 and authorizes the Director of Public Works to expend all available
contingency funds up to an amount not to exceed $370,000.00. ~~
--~
Presented by
Appr6z%ed as toj'or`i~_t,y
` ~~ ~ ~ /,
Richard A. Hopkins y Glerf R. (ioog
Director of Public Works City Attorney
7-22
RESOLUTION NO. 2013-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A REIMBURSEMENT
AGREEMENT FOR PAYMENT OF COSTS OF RELOCATION
AND ADJUSTMENT OF CERTAIN WATER FACILITIES BY
AND BETWEEN THE OTAY WATER DISTRICT AND THE
CITY OF CHULA VISTA (OTAY LAKES ROAD WIDENING
PROJECT, PHASE 2)
WHEREAS, the City of Chula Vista will commence construction fox the second and final
phase of widening of Otay Lakes Road, between East "H" Street and Telegraph Canyon Road
("City's Project") in Apri12013; and
WHEREAS, Otay Water District (OWD) staff requested that City Public Works staff
consider including in the construction bid documents for the City's Project the relocation and
adjustment of OWD's potable and recycled water facilities that are necessary for completion of
City's Project; and
WHEREAS, staff determined that inclusion of this water facility relocation and
adjustment work would benefit the City, O WD, and the general public; and
WHEREAS, the agreement provides a mechanism by which the City may relocate and
adjust OWD's facilities in conflict with the City's Project; and
WHEREAS, the agreement requires that OWD place adeposit with the City equal to
110% of OWD's facility costs prior to the start of construction; and
WHEREAS, OWD's deposit will be used to repay the City for progress payments paid to
the contractor on behalf of OWD on a monthly basis.
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby approve a reimbursement agreement for payment of costs of relocation and
adjustment of District facilities by and between the Otay Water District and the City of Chula
Vista (Otay Lakes Road Widening, Phase 2).
Presented by
Richard A. Hopkins
Director of Public Works
Approved as to form by
r- ~ ,~
en R. Googins
City Attorney
7-23