HomeMy WebLinkAboutStaff Report 3.L 07/11/2005CITY OF PETALUNIA, CALIFORNIA 3. L
PETALUMA COMMUNITY DEVELOPMENT CO
AGENDA BILL July 11, 2005
Aeenda Title: Downtown Improvements Phase I, Project No. 3300- Meeting Date:
54151-C200603 Discussion and Action approving the Final Project July 11, 2005
Budget, Adopting a Resolution Approving Execution of a Final
Change Order, and Authorizing Execution of Final Settlement of Meeting Time: ® 3:00 PM
Claims of Ghilotti Brothers, Inc. ❑ 7:00 PM
Cateeory (check one): ® Consent Calendar ❑ Public Hearing ❑ New Business
❑ Unfinished Business ❑ Presentation
Denartment I Director: I Contact Person: Phone Number:
ED & Redevelopment I Paul Marangella �l Jeanne Miche 776-3672
Cost of Proposal: $234,513. Account Number:3300-54151- C200603
Amount Bud eg ted: $313,664 Name of Fund: CBD Fund 3300
Attachments to Aeenda Packet Item:
1. Exhibit A: Resolution for Approving the Final Project Budget for the Petaluma Downtown
Improvements Project, Phase I
2. Exhibit B: Settlement Agreement and Release of Specified Claims
3. Exhibit C: Final Project Change Order Increasing the Contract Amount by $178,971.18
Summary Statement: On February 28, 2005, the PCDC accepted the completion of Phase I of the
Downtown Improvements by Ghilotti Brothers, Inc., (GBI) based on a final contract amount of
$2,421,407. At that time GBI and the PCDC staff had several outstanding billings that required further
documentation from GBI to be resolved. Based on GBI's response to the PCDC's final payment estimate,
it appeared GBI may seek as much as $300,000 in additional compensation.
Having tentatively resolved the final billing documentation and compensation issues, it is now appropriate
for the PCDC to provide for the final payment to GBI and final resolution of all outstanding project
closeout issues. The tentative agreement staff has reached with GBI, would result in additional
compensation to GBI in the amount of $178,971.18. In addition, $49,982 is required to pay General Fund
Overhead and $5,562 is required for additional construction management to Vali Cooper & Associates.
The PCDC staff and GBI worked collaboratively to resolve all documentation and compensation issues to
achieve an amicable final settlement of all GBI claims.
It is recommended that the PCDC adopt the attached resolution approving the final project budget for the
Petaluma Downtown Improvements Project, Phase I, execution of a final project change order increasing
the contract amount by $178,971.18, and execution of a final settlement of all GRI claims providing for
final payment to GBI of $464,659.65, upon release of the W. Bradley Electric Stop Notice in the amount
of $349,007.97. The final payment to GBI is made up of project retention of $237,302.08 and additional
compensation in the amount of $178,971.18, and the final progress payment of $48,386.39 being held due
to the stop notice.
Recommended PCDC Action/Sueeested Motion:
Adopt a resolution approving the final project budget, approving execution of a final change order
increasing the contract amount by $178,971.18, and authorizing execution of final settlement of claims of
Ghilotti Brothers, Inc., providing for final payment to GBI of $464,659.65, upon release of the W. Bradley
Electric Stop Notice, in the amount of $349,007.97, for the Petaluma Downtown Improvements Phase 1,
Project No. C200603.
Reviewed by Finance Director: Reviewed by City Attornev: Approved b Ianaeer:
Date: Date: Date:
Today's Date: Af 1 Revision # and Date Revised: File Code: /
Jllne29, 2005 �/J��f� /AIi # S:\CIP DowntownI" mpr C200603 (9053)Nhase
!V V v V MONSTRUCTION Phase 1110 Agenda Bills\Agenda Bill
Claims Downtown Improvements Phase I6-2&05.doc
Page 1
CITY OF PETALUMA, CALIFORNIA
Petaluma Community Development Commission
July 11, 2004
AGENDA REPORT
DOWNTOWN IMPROVEMENTS PHASE I PROJECT NO. 3300-54151 -C200603 DISCUSSION AND
ACTION APPROVING THE FINAL PROJECT BUDGET, APPROVING EXECUTION OF A FINAL
CHANGE ORDER, AND AUTHORIZING EXECUTION OF FINAL SETTLEMENT OF CLAIMS OF
THE GHILOTTI BROTHERS, INC.
1. ExECUT[VE SumNIARY:
On February 28, 2005, the PCDC accepted the completion of Phase I of the Downtown Improvements
by Ghilotti Brothers, Inc., (GBI) based on a final contract amount of $2,421,407. At that time GBI and
the PCDC staff had several outstanding billings that required further documentation from GBI to be
resolved. Based on GBI's response to the PCDC's final payment estimate, it appeared GBI may seek as
much as $300,000 in additional compensation.
Having tentatively resolved the final billing documentation and compensation issues, it is now
appropriate for the PCDC to provide for the final payment to GBI and final resolution of all outstanding
project closeout issues. The tentative agreement staff have reached with GBI would result in additional
compensation to GBI in the amount of $178,971.18. In addition, $49,982 is required to pay General
Fund Overhead and $5,562 is required for additional construction management to Vali Cooper &
Associates.
The PCDC staff and GBI worked collaboratively to resolve all documentation and compensation issues
to achieve an amicable final settlement of all GBI claims.
It is recommended that the PCDC adopt the attached resolution approving the final project budget for
the Petaluma Downtown Improvements Project, Phase I, execution of a final project change order
increasing the contract amount by $178,971.18, and execution of a final settlement of all GBI claims
providing for final payment to GBI of $464,659.65, upon release of the W. Bradley Electric Stop Notice
in the amount of $349,007.97. The final payment to GBI is made up of project retention of $237,302.08
and additional compensation in the amount of $178,971.18 and the final progress payment of
$48,386.39 being held due to the stop notice.
2. BACKGROUND:
The Downtown Improvements Project, Phase I was a very complex project that extended beyond its
original planned schedule by approximately eleven months. This created a financial hardship for the
contractor, GBI. At the same time, there were several outstanding bills needing additional
documentation. Based on GBI's response to the PCDC's final payment estimate, it appeared GBI may
seek as much as $300,000 in additional compensation.
After nearly four months and five long meetings, the final documentation for the project is complete and
the total additional billings from GBI are $178,971.18 or $121,029 less than anticipated.
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In addition, after reviewing the capital budget it was determined that the General Fund Overhead
required an adjustment of $49,982.
Finally, an additional $5,562 is required for construction management.
3. ALTERNATIVES:
Approve the final project budget for the Petaluma Downtown Improvements Project, Phase I, execution
of a final project change order increasing the contract amount by $178,971.18, and execution of a final
settlement of all GBI claims providing for final payment to GBI of $464,659.65 upon release of the
W. Bradley Electric Stop Notice in the amount of $349,007.97
4. FINANCIAL IMPACTS:
As shown in the Project Summary table below, $3,671,232 was budgeted for Phase I of this project
including construction, design, construction management, and administration, contingency and general
overhead. On February 28, 2005, the PCDC accepted the project for this amount with the understanding
that additional final billings would be paid from the remaining project contingency. The final settlement
of claims and the increased cost of General Fund Overhead and construction management result in a
final project close-out of $3,592,083.
E
Project Budget Summary
By Category
Original Budget
2/28/0 PCDC„ii
Final Claims
Difference
Phase 1;-. GBI
Approved;
Ad�ustwents
Approved
Only
Expenditures
Expenditures,
Place I GBI77
vs Final .. --
'- 0n1Y
Claims
General Fund
$109,269I
$121,070
$171,052
$49,982
Overhead
I
Admin
I $145,269 +
$125,000 I
$125,000 I
$0
Design
I $590,000 I
$444,385 I
$444,385
$0
Construction(
$241,000
$245,706
$251,268
$5,562
Mgmt./Inspection
Construction
I $2,185,376 (
$2,421,407 I
$2,600,378 I
$178,971 J
Contingency
I $400,318 I
$313,664 I
0 I
($313,664)
Total
I $3,671,232 I
$3,671,232 I
$3,592,083 I
($79,149)
CONCLUSION:
The adoption of the attached resolution will authorize final payment to GBI and determine the final
project budget and close-out the project.
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6. OUTCOMES OR PERFORMANCE MEASUREMENTS THAT WILL IDENTIFY SUCCESS OR COMPLETION:
Completion of the Petaluma Downtown Improvements Phase I project C200603.
RECOMMENDATION:
Adopt a resolution approving the final project budget, approving execution of a final change order
increasing the contract amount by $178,971.18, and authorizing execution of final settlement of claims
of Ghilotti Brothers, Inc., providing for final payment to GBI of $464,659.65, upon release of the
W. Bradley Electric Stop Notice, in the amount of $349,007.97, for the Petaluma Downtown
Improvements Phase 1, Project No. C200603.
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Attachment 1
Exhibit A
Resolution for Approving the Final Project
Budget for the Petaluma Downtown
Improvements Project, Phase I
Page 5
RESOLUTION NO. 2005-
PETALUMA COMMUNITY DEVELOPMENT COMMISSION
APPROVING THE FINAL PROJECT BUDGET FOR THE DOWNTOWN IMPROVEMENTS PHASE
I CONTRACT, PROJECT NO. 3300-54151-C200603 (TOTAL ADDITIONAL COST: $234,513
FUNDED BY CENTRAL BUSINESS DISTRICT PROJECT AREA FUND 3300), APPROVING
EXECUTION OF A FINAL CHANGE ORDER, AND AUTHORIZING EXECUTION OF FINAL
SETTLEMENT OF CLAIMS OF GHILOTTI BROTHERS, INC.
WHEREAS, the Petaluma Community Development Commission ("PCDC") awarded the contract for the
Petaluma Downtown Improvements Phase I Project, Contract No. C200603 ("Project'), to Ghilotti Bros., Inc.
("GBI") on August 25, 2003; and
WHEREAS, the PCDC accepted the Project as complete on February 28, 2005 and filed a Notice of
Completion concerning the Project with the Sonoma County Clerk pursuant to California Civil Code Section
3093 on February 28, 2005, which notice was recorded on March 21, 2005; and
WHEREAS, the original amount of the Project contract was $2,185,375.75, and Project change orders to date
total $236,031.45; and
WHEREAS. the PCDC presented a proposed final estimate of payment ("PFE") to GBI on December 7, 2004,
and GBI raised objections/claims and sought additional compensation in response to the PFE by letter dated
December 20, 2004; and
WHEREAS, PCDC staff and GBI worked collaboratively to resolve all documentation and compensation
issues to achieve an amicable final settlement of all GBI claims; and
WHEREAS, William Bradley Electric ("WBE"), a subcontractor on the Project, filed a Stop Notice with the
PCDC in the amount of $349,007.97 ("Stop Notice"), and as a result the PCDC has withheld the Project
retention balance of $237,302.08 pursuant to California Civil Code Section 3186; and
WHEREAS, to date the PCDC has paid GBI $2,135,718.90 for performance of the Project.
1. The final project budget for the Petaluma Downtown Improvements Project, Phase I, Project No.
3300-54151-C200603 of $3,592,083 (total additional cost: $234,513 funded by Central Business
District Project Area Fund 3300) is hereby approved in accordance with the Agenda Bill and Report
to which this resolution is attached and which Agenda Bill and Report are hereby made a part of this
resolution.
2. The PCDC Executive Director is hereby authorized and directed to execute on behalf of the PCDC a
final project change order increasing the contract amount for Contract No. 9053 by $178,971.18 for
a final contract amount of $2,600,378.00.
3. Upon receipt by the PCDC of a stop notice release properly executed on behalf of W. Bradley
Electric in accordance with California Civil Code Section 3262 releasing the Stop Notice filed on
behalf of W. Bradley Electric with the PCDC in the amount of $349,007.97, the PCDC Executive
Director is hereby authorized and directed to execute on behalf of the PCDC a final settlement of all
GBI claims in accordance with the agreement attached to and made a part of this Resolution as
Exhibit B and to ensure that the PCDC complies with the terms of such agreement, including the
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release of a final payment to GBI of $464,659.65 in accordance with the requirements of such
agreement.
Adopted this I VhDay of July 2005 by the following vote:
Commissioner Ave No Absent
Glass
Canevaro
Harris
Healy
Nan
O'Brien
Torliatt
ATTEST:
Claire Cooper, Recording Secretary
Page 7
David Glass, Chairperson
Attachment 2
Exhibit B
Settlement Agreement and Release of
Specified Maims
SETTLEMENT AGREEMENT AND
RELEASE OF SPECIFIED CLAIMS
I. Parties to the Agreement and Effective Date
This Agreement is entered into this 29 day of June, 2005, by and between Ghilotti Bros., Inc. and the
Petaluma Community Development Commission. In consideration of the covenants contained in this
Agreement, the parties agree as follows:
H. Defined Terms
This Agreement will use the following defined terms:
a. "Agreement" shall mean this settlement agreement and release of specified claims.
b. "Contractor" shall mean Ghilotti Bros., Inc., a California Corporation.
C. "Project Contract" shall mean the public works construction contract between the Contractor and
the PCDC awarded to the Contractor on august 25, 2003 and executed on August 29, 2003 governing
performance of the Project.
d. "Project" shall mean the Petaluma Downtown Improvements Phase 1 Project, Project No. 9053,
consisting of the installation of new electrical systems, water distribution facilities, curb, gutter, sidewalk, street
lights, road repair, repaving and restriping and related trenching, demolition and other work as specified in the
Project Contract documents.
e. "PCDC" shall mean the Petaluma Community Development Commission, a California
redevelopment agency, and agency of the State for the local performance of governmental or proprietary
functions within limited boundaries in accordance with the California Community Redevelopment Act,
California Health and Safety Code Section 33000 et seq.
III. Recitals
On, August 29, 2003, the Project Contract was executed between the PCDC and the Contractor
governing performance of the Project. The PCDC accepted the Project as complete on February 28, 2005. The
PCDC filed a Notice of Completion concerning the Project with the Sonoma County Clerk pursuant to
California Civil Code Section 3093 on February 28, 2005. The notice was recorded on March 21, 2005.
The original amount of the Project Contract was $2,185,375.75. Project Change Orders to date total
$236,031.45. The PCDC presented a proposed final estimate of payment ("PFE") to the Contractor on
December 7, 2004. The Contractor raised objections/claims and sought additional compensation in response to
the PFE by letter dated December 20, 2004.
William Bradley Electric ("WBE"), a subcontractor on the Project, filed a Stop Notice with the PCDC in
the amount of $349,007.97 ("Stop Notice"). Accordingly, the PCDC has withheld the Project retention balance
of $237,302.08 pursuant to California Civil Code Section 3186.
To date the PCDC has paid the Contractor $2,135,718.90 for performance of the Project.
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IV. Final Chance Order
The parties agree to execute a final Project change order in accordance with that attached to and made a
part of this Agreement as Exhibit A. The final change order, upon execution by authorized representatives of
the parties, will increase the Project Contract amount by $178,971.18 to $2,600,378.00 as full and final
consideration for the Contractor's performance of the Project and resolution and release of all Contractor claims
and disputes concerning the Project in accordance with this Agreement.
V. Final Proicet Contract Pavment
Within three (3) days of receipt by the PCDC of a release properly executed by WBE in accordance with
California Civil Code Section 3262 for $349,007.97, the full amount of the Stop Notice, the PCDC will release
to the Contractor a final Project Contract payment in the amount of $464,659.65, the final unexpended Project
Contract balance.
VI. Mutual Release
a. Upon issuance by the PCDC or a designee of the final payment in the amount of $464,659.65 in
accordance with this Agreement, this Agreement shall operate to release, acquit and forever discharge the
PCDC, as well as all officials, officers, agencies, employees and agents thereof, from any and all existing and
future actions, causes of action, claims, demands, damages, costs, loss of use, loss of revenue, expenses,
compensation, and other forms of damages arising from the Project.
b. For the purposes California Public Contract Code Section 7100, the Contractor disputes neither
the final Project Contract payment of $464,659.65 to be made pursuant to this Agreement, nor the prior PCDC
payments to the Contractor totaling $2,135,718.90 for the Contractor's performance of the Project. In
accordance with California Civil Code Section 3262, this Agreement does not purport to nor shall it waive,
affect or impair the claims, stop notice rights or bond rights of persons or entities other than the Contractor.
c. Upon issuance by the PCDC or a designee of the final payment in the amount of $464,659.65 in
accordance with this Agreement, this Agreement shall operate to waive any claim the PCDC may have against
the Contractor pursuant to Article 3 of the Project Contract or any other provision or provisions of the Project
Contract for assessment of liquidated damages against the Contractor concerning the Contractor's performance
of the Project.
d. With the sole exception of the waiver of the PCDC's right to assess liquidated damages under the
Project Contract as described above, this Agreement affects none of the PCDC's rights under the Project
Contract, applicable law, or at equity, and all other PCDC rights under the Project Contract, applicable law and
at equity remain in full force and effect.
VII. Waiver of Unknown Claims
The Contractor understands and agrees that, subject to provision VI, above, and all other terms of this
Agreement, the Contractor waives any and all existing rights, losses, damages, and claims against the
PCDC arising from the Project, including those which the Contractor does not know or suspect to exist
in the Contractor's favor at the time of executing this Agreement which, if known by the Contractor,
would have materially affected this settlement. Subject to the temis of this Agreement, including, but
not limited to, provision VI, above, the Contractor specifically waives the Contractor's rights under
Section 1542 of the Civil Code of California, which provides that
Page 10
A general release does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.
VIII. Time of the Essence
The PCDC and the Contractor recognize that time is of the essence and each of them will undertake
steps to conclude their respective obligations under this Agreement as soon as is reasonably possible.
IX. Entire Agreement; Modification; Construction
This Agreement represents and contains the entire agreement and understanding between the PCDC and
the Contractor with respect to the subject matter of this Agreement (settlement and release of specified claims).
This Agreement supersedes any and all prior oral and written agreements and understandings concerning the
subject matter of this Agreement. Neither the PCDC nor the Contractor shall rely upon any prior
representation, warranty, condition, understanding or agreement of any kind with respect to the subject matter
of this Agreement unless specifically incorporated in this Agreement. This Agreement shall not be amended or
modified except by an agreement in writing signed by a representative authorized to bind the party against
whom the enforcement of any modification or amendment is sought. This Agreement shall be construed to
have been drafted equally by the PCDC and the Contractor.
X. Binding Effect
This Agreement shall be binding on, and inure to the benefit of, the successors and assigns of the PCDC
and the Contractor. Nothing in this Agreement, expressed or implied, is intended to confer upon any person
(other than the PCDC and the Contractor, and their respective successors and assigns) any rights or benefits.
The PCDC and the Contractor are legally competent to execute this Agreement, and accept full responsibility
under this Agreement. The PCDC and the Contractor freely and voluntarily enter into this Agreement. By the
signature of the authorized representatives of the PCDC and the Contractor, below, the PCDC and the
Contractor acknowledge that they have consulted with an attorney prior to the execution of this Agreement.
XI. Controlling Law
This Agreement was made in the State of California, and shall be construed in accordance with
California law. The Sonoma County Superior Court shall retain jurisdiction for the purpose of enforcing any
term or condition of this Agreement.
XII. Counter -Parts
This Agreement may be executed in multiple counter -parts, each of which shall be deemed an original,
but all of which, together, shall constitute one and the same instrument.
XIII. No Admission of Anv Fact
Neither this Agreement, nor its execution by the PCDC or the Contractor, shall be deemed or alleged to
constitute any admission of any fact relating to claims by the PCDC or the Contractor, or to constitute any
admission of the truth of any allegations, which claims or allegations may arise or have arisen concerning the
Project; nor shall this Agreement be offered in evidence by anyone in any action or proceeding for any purpose.
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XIV. Attomevs= Fees
The prevailing party in any legal action to enforce a provision of this Agreement will be entitled to
recover all of its costs and its reasonable attorneys= fees from the other party.
Have you carefully read the foregoing Agreement and latow the contents thereof, and signed the same as
your own free act?
CAUTION! READ THIS AGREEMENT BEFORE SIGNING!!
EXECUTED this day of 2005.
0
[Attach notary page]
Ghilotti Bros., Inc.
Its:
Page 12
Have you carefidly read the foregoing Agreement and know the contents thereof, and signed the same as
your own fi•ee act?
CAUTION! READ THIS AGREEMENT BEFORE SIGNING!!
EXECUTED this day of .2005.
I�
Attest:
By:
Claire Cooper, Recording Secretary
Petaluma Community Development Commission
Its:
Page 13
Attachment 3
Exhibit C
Final Project Change Order Increasing the
Contract Amount by $178,971.18
Page 14
PETALUMA COMMUNITY DEVELOPMENT COMMISSION
CONTRACT NO. 901-400-9053-7112
CONTRACT CHANGE ORDER NO, 28 SUPPLEMENT. NO. N/A SHEET [1] OF [11 SHEETS
PROJECT NAME: Petaluma Downtown improvements Phase I
To: Ghilotti Brothers, Inc.
525 Jacoby Street
San Rafael, CA 94901
You are hereby directed to make the herein described changes to the plans and specifications or do the following described work not
included in the plans and specifications on this contract. Upon execution by representatives authorized to bind the parties, this Change
Order will become a part of the contract. The consideration specified in this Change Order (whether an adjustment of the contract
price, an adjustment of time, and/or other consideration) is the full and sole compensation owed to the contractor as a result of the
changes and issues described in this Change Order. Such consideration includes, but is not limited to, any and all direct and indirect
costs incurred by the contractor as a result of the changes and issues described in this Change Order for any labor, equipment,
materials, overhead (additional, extended, field and home office), profit, or time adjustments. By signing this Change Order the
contractor waives and releases the owner from any and all claims for additional compensation concerning any of the changes and
issues specified in this Change Order.
NOTE: This change order is not effective until approved by the Director.
To follow is the description of work to be performed, estimate of quantities and prices to
be paid, segregated between additional work at contract price, agreed price and force
account. Unless otherwise stated, rates for rental of equipment cover only such time as
equipment is actually used and no allowance will be made for idle time.
Change reauested by the City of Petaluma, the Owner
Description of Work
This change order addresses the following:
Compensation to the Contractor for any and all exceptions to the Proposed Final Estimate dated
December 7, 2004 and release of all claims.
Method of Payment
Adlustment of Comnensathm at Aereed Lumn Sum,
The Contractor will be paid additional compensation in the amount of $178,971.18. This sum constitutes full and
final payment concerning the work, amounts and issues associated with this change order including any and all
potential claims and claims. Your signature below releases the City of Petaluma from any and all claims or liability
for further payment associated with the above referenced project.
Total Cost: Increase $178,971.18
By reason of this order, the time of completion will be adjusted as follows: Zero (0) Days
Original Contract Price: $2,185,375.75
Total of Previous Change Orders: $236,031.45
Total of this Change Order: $178,971.18
Total Revised Contract Price: $2,600,378.00
Prepared by:
Approval Recommended:
Approved by:
Jeanne Miche, Project Manager Date: June 29, 2005
Joyce Clark, PE Date:
, Michael Bierman, City Manager Date
We, the undersigned contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved, that
we will provide all equipment, furnish all materials, except as may otherwise be noted above, and perforin all services necessary for the work
above specified, and will accept as Cull payment the amounts shown above.
Accepted: Date
By:
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Title: