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HomeMy WebLinkAbout01-25-2017 Board Meeting Agenda Packet Orange County Sanitation District Wednesday, January 25, 2017 Regular Meeting of the 6:00 P.M. BOARD OF DIRECTORS Board Room 10844 Ellis Avenue Fountain Valley, CA 92708 (714)593-7433 AGENDA CALL TO ORDER INVOCATION AND PLEDGE OF ALLEGIANCE (Michelle Steel, Orange County Board of Supervisors) ROLL CALL (Clerk of the Board) 1. RECEIVE AND FILE MINUTE EXCERPTS OF MEMBER AGENCIES RELATING TO APPOINTMENTS TO THE ORANGE COUNTY SANITATION DISTRICT BOARD OF DIRECTORS (Clerk of the Board) City of Anaheim Denise Barnes Lucille Kring City of Brea Glenn Parker Cecilia Hupp City of Fountain Valley Steve Nagel Cheryl Brothers City of Garden Grove Steve Jones Kris Beard City of Huntington Beach Barbara Delgleize Erik Petersen City of Irvine Donald Wagner Lynn Schott City of La Habra Tim Shaw Michael Blazey City of La Palma Peter Kim Gerard Goedhart City of Los Alamitos Richard Murphy Warren Kusumoto City of Newport Beach Scott Peotter Kevin Muldoon City of Placentia Chad Wanke Ward Smith City of Seal Beach Ellery Deaton Sandra Massa-Lavitt City of Stanton Dave Shawver Carol Warren City of Tustin Allan Bernstein Chuck Puckett City of Villa Park Robert Collacott Diana Fascenelli Costa Mesa Sanitary District James Ferryman Bob Ooten Yorba Linda Water District Phil Hawkins Brooke Jones DECLARATION OF QUORUM (Clerk of the Board) PUBLIC COMMENTS: If you wish to address the Board of Directors on any item, please complete a Speaker's Form (located at the table outside of the Board Room) and submit if to the Clerk of the Board or notify the Clerk of the Board the item number on which you wish to speak. Speakers will be recognized by the Chairperson and are requested to limit comments to three minutes. 01M/2017 OCSD Board of Directors Agenda Page 1 of 8 SPECIAL PRESENTATIONS: • Employee Service Award(s) ELECTION: 2. ELECTION OF VICE CHAIRPERSON OF THE BOARD OF DIRECTORS (Clerk of the Board) RECOMMENDATION: Conduct the election forthe position of Vice Chairperson of the Board of Directors in accordance with Resolution No. OCSD 15-27. REPORTS: The Chair and the General Manager may present verbal reports on miscellaneous matters of general interest to the Directors. These reports are for information only and require no action by the Directors. • Committee Assignments CONSENT CALENDAR: Consent Calendar Items are considered to be routine and will be enacted,by the Board of Directors,after one motion, without discussion. Any items withdrawn from the Consent Calendar for separate discussion will be considered in the regular order of business. 3. APPROVAL OF MINUTES (Clerk of the Board) RECOMMENDATION: Approve the minutes of the Regular Board of Directors Meeting held on December 14, 2016. 4. DEFERRED PAYMENT AGREEMENT FOR CHARGES AND FEES OWED BY ONE INDUSTRIAL WASTEWATER DISCHARGE PERMITTEE (Lorenzo Tyner) RECOMMENDATION: Approve the deferred payment agreement negotiated by the General Manager for the collection of all charges and fees owed for sanitary sewer service charges, plus interest of 5.75% per annum, with Van Law Food Products, Inc., in a form approved by General Counsel. 5. TAYLOR-DUNN CART PURCHASE FROM YALE CHASE EQUIPMENT AND SERVICES, INC. (Ed Torres) RECOMMENDATION: A. Authorize the award of a sole source purchase of nineteen (19)Taylor-Dunn electric carts from Yale Chase Equipment and Services, Inc., in accordance 01M/2017 OCSD Boats of Directors Agenda Page 2 of 8 with 03/28/01 Minute Order 12(C)(2), for a total cost of$212,127 to include tax and delivery; and B. Approve a contingency of$10,606 (5%). 6. MEMORANDUM OF UNDERSTANDING WITH ORANGE COUNTY EMPLOYEES' RETIREMENT SYSTEM REGARDING PAYMENT OF UNFUNDED ACTUARIAL ACCRUED LIABILITIES (Lorenzo Tyner) RECOMMENDATION: Adopt Resolution No. OCSD 17-01 entitled; "A Resolution of the Board of Directors of the Orange County Sanitation District authorizing the General Manager to enter into a Memorandum of Understanding with the Orange County Employees' Retirement System establishing the terms to recognize and apply the District's full satisfaction of its Unfunded Accrued Actuarial Liability and deferred Unfunded Accrued Actuarial Liability." RECEIVE AND FILE: These items require no action; and without objection, will be so ordered by the Board Chair. 7. REPORT OF THE INVESTMENT TRANSACTIONS FOR THE MONTH OF DECEMBER 2016 (Lorenzo Tyner) RECOMMENDATION: Receive and file the report of the Investment Transactions for the month of December 2016. STEERING COMMITTEE: 8. OUTREACH FOR GROUNDWATER REPLENISHMENT SYSTEM (GWRS) BOTTLED WATER AND THE 10TH ANNIVERSARY OF THE GWRS (Bob Ghirelli) RECOMMENDATION: Approve$63,000 as the Orange County Sanitation District's share of costs related to GWRS bottled water outreach efforts. 9. GENERAL MANAGER'S FY 2016-2017 WORK PLAN MID-YEAR UPDATE (Jim Herberg) RECOMMENDATION: Receive and file the General Manager's FY 2016-2017 Work Plan Mid-Year Update. 01M/2017 OCSD Bwa of Directors Agenda Page 3 of 8 NON-CONSENT CALENDAR: 10. REIMBURSEMENT AGREEMENT WITH ORANGE COUNTY FLOOD CONTROL DISTRICT FOR FULLERTON CREEK CHANNEL PROJECT (Rob Thompson) RECOMMENDATION: Approve a Reimbursement Agreement with the Orange County Flood Control District for the modifications to the Magnolia Relief Sewer under the Fullerton Creek Channel, in the City of Buena Park. 11. CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT NO. 2, PROJECT NO. P2-110 (Rob Thompson) RECOMMENDATION: A. Receive and file Bid Tabulation and Recommendation for Consolidated Demolition and Utility Improvements at Plant No. 2, Project No. P2-110; B. Receive and file Orange County Sanitation District's Notice of Intent to Award dated December 5, 2016; C. Receive and file Award Protest from Shimmick Construction Co., Inc dated December 13, 2016, concerning the award to Flatiron West, Inc.; D. Receive and file response letterfrom Flatiron West, Inc. dated December20, 2016, regarding the bid protest of Shimmick Construction Co., Inc.; E. Receive and file Orange County Sanitation District's determination letter dated December 27, 2016, to Shimmick Construction Co., Inc. responding to Award Protest; F. Deny Award Protest filed by Shimmick Construction Co., Inc.; G. Award a Construction Contract to Flatiron West Inc. for Consolidated Demolition and Utility Improvements at Plant No. 2, Project No. 132-110, for a total amount not to exceed $16,730,000; and H. Approve a contingency of$1,338,400 (8%); I. Approve a Professional Consultant Services Agreement with Stantec Consulting Services, Inc. to provide construction support services for Consolidated Demolition and Utility Improvements at Plant No. 2, Project No. 132-110, for an amount not to exceed $1,499,839; and J. Approve a Professional Consultant Services Agreement contingency of $149,984 (10%). 01M/2017 OCSD Bwa of Directors Agenda Page 4 of 8 AB 1234 REPORTS: This is the time of the meeting when Board Members will provide a brief oral report on any conference, meeting, or travel paid by the Sanitation District. INFORMATION ITEMS: None. CLOSED SESSION: During the course of conducting the business set forth on this agenda as a regular meeting of the Board, the Chair may convene the Board in closed session to consider matters of pending real estate negotiations,pending or potential litigation,orpersonnel matters,pursuant to Government Code Sections 54956.8, 54956.9, 54957 or 54957.6, as noted. Reports relating to (a) purchase and sale of real property; (b) matters of pending or potential litigation; (c)employment actions or negotiations with employee representatives;or which are exempt from public disclosure under the California Public Records Act, may be reviewed by the Board during a permitted closed session and are not available for public inspection. At such time as the Board takes final action on any of these subjects, the minutes will reflect all required disclosures of information. CONVENE IN CLOSED SESSION. (1) CONFERENCE WITH LEGAL COUNSEL RE EXISTING LITIGATION (Government Code Section 54956.9(d)(1)) Number of Cases: 2 Klean Waters, Inc. at al. v. Orange County Sanitation District, et al., United States District Court, Central District of California, Southern Division, Case No. 8:15-cv-00627. Klean Waters, Inc. et al. v. Orange County Sanitation District, et al. United States District Court, Central District of California, Southern Division, Case No. 8:15-cv-01498. (2) CONFERENCE WITH LEGAL COUNSEL RE EXISTING LITIGATION (Government Code Section 54956.9(d)(1)) Number of Cases: 1 City of Los Angeles v. County of Kern, Tulare County Superior Court, Case No. 242057. 0 112 512 01 7 OCSD Board of Directors Agenda Page 5 of 8 (3) CONFERENCE WITH LEGAL COUNSEL RE ANTICIPATED LITIGATION (Government Code Section 54956.9(d)(2)) Number of Potential Cases: 2 Claim for damages or injury from: Melissa Forman-Woodbridge Claim for damages or injury from: Roy Handy (4) CONFERENCE WITH REAL PROPERTY NEGOTIATORS (Government Code Section 54956.8) Property: 300 East Coast Highway, Newport Beach, CA -APN No.440-132-60 Agency negotiators: General Manager, Jim Herberg; Assistant General Manager, Bob Ghirelli; Director of Finance and Administrative Services, Lorenzo Tyner; Director of Engineering, Rob Thompson; Engineering Managers, Kathy Millea and Jeff Mohr; and CIP Project Manager, Adam Nazaroff. Negotiating parties: Bayside Village Marina LLC Under negotiation: Instruction to negotiator will concern price and terms of payment. (5) CONFERENCE WITH REAL PROPERTY NEGOTIATORS (Government Code Section 54956.8) Property: 10950 Virginia Cir. Fountain Valley, CA- APN No.156-165-05; 10870 Spencer Ave. Fountain Valley, CA -APN No.156-163-07; 18480 Pacific St. Fountain Valley, CA -APN No.156-165-04; 18430 Pacific St. Fountain Valley, CA -APN No.156-165-06; 18370 Pacific St. Fountain Valley, CA -APN No.156-165-08; 18429 Pacific St. Fountain Valley, CA -APN No.156-163-09; 18410 Bandilier Cir. Fountain Valley, CA -APN No.156-163-10; 18368 Bandilier Cir. Fountain Valley, CA -APN No.156-163-11; 10700 Spencer St. Fountain Valley, CA-APN No.156-163-16; 10700 Spencer Ave. Fountain Valley, CA -APN No.156-154-07; 18350 Mt. Langley St. Fountain Valley, CA-APN No.156-154-08; 18386 Mt. Langley St. Fountain Valley, CA-APN No.156-154-06; 18385 Bandilier Cir. Fountain Valley, CA -APN No.156-163-12; 18401 Bandilier Cir. Fountain Valley, CA -APN No.156-163-13; 18424 Mt. Langley St. Fountain Valley, CA-APN No.156-154-05; 18435 Bandilier Cir. Fountain Valley, CA -APN No.156-163-14; 18475 Bandilier Cir. Fountain Valley, CA -APN No.156-163-15; 10725 Ellis Ave. Fountain Valley, CA -APN No.156-154-04; 10540 Talbert Ave. Fountain Valley, CA -APN No.156-151-03; and 7311 Doig Drive Garden Grove, CA -APN No. 131-651-20 01/25/2017 OCSD Bwa of Directors Agenda Page 6 of 8 Agency negotiators: General Manager, Jim Herberg; Assistant General Manager, Bob Ghirelli; Director of Finance and Administrative Services, Lorenzo Tyner; Director of Engineering, Rob Thompson; Engineering Managers, Kathy Millea and Jeff Mohr; CIP Project Manager, Wendy Sevenandt; Kevin Turner and John Gallivan, Cushman and Wakefield. Negotiating parties: Valley, Business Park, APN Nos. 156-165-05, .156-165-06, 156-163-07; DK-USA LLC, APN No.156-165-04; Fountain Valley Industrial Parcel 13, APN No.156-165-08; Sukut Real Properties LLC, APN Nos. 156-163-09, 156-163-10, 156-163-11; The Ins Trust Shabtai, Nevon, APN No. 156-163-16; The Ins Trust, APN No. 156-154-07; K & A Investments LP, APN No. 156-154-08; Fountain Valley Star LLC, APN No. 156-154-06; TN Sheet Metal Inc., APN No. 156-163-12; 18401 Bandilier LLC, APN No. 156-163-13; Phone Lilly Lin-Lin TR, APN No. 156-154-05; JDK Partners, APN No. 156-163-14; Chandler Real Properties, APN No. 156-163-15; Ellis Avenue LLC, APN No. 156-154-04; and SFII Fountain Valley LLC, APN No. 156-151-03 Under negotiation: Instruction to negotiator will concern price and terms of payment. RECONVENE IN REGULAR SESSION. CONSIDERATION OF ACTION, IF ANY, ON MATTERS CONSIDERED IN CLOSED SESSION: OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS, IF ANY: ADJOURNMENT: Adjourn the Board meeting until the Special Meeting of the Board of Directors (Board Orientation) on February 15, 2017 at 3:00 p.m. 0112 5/2 01 7 OCSD Boats of Directors Agenda Page 7 of 8 Accommodations for the Disabled: Meeting Rooms are wheelchair accessible. If you require any special disability related accommodations, please contact the Orange County Sanitation District Clerk of the Board's office at(714) 593-7433 at least 72 hours prior to the scheduled meeting. Requests must specify the nature of the disability and the type of accommodation requested. Aaenda Postina: In accordance with the requirements of California Government Code Section 54954.2,this agenda has been posted outside the main gate of the Sanitation District's Administration Building located at 10844 Ellis Avenue, Fountain Valley, California, and on the Sanitation District's website at www.ocsd.com, not less than 72 hours prior to the meeting date and time above. All public records relating to each agenda item,including any public records distributed less than 72 hours prior to the meeting to all,or a majority of the Board of Directors,are available for public inspection in the office of the Clerk of the Board. Aaenda Description: The agenda provides a brief general description of each item of business to be considered or discussed. The recommended action does not indicate what action will be taken. The Board of Directors may take any action which is deemed appropriate. NOTICE TO DIRECTORS: To place items on the agenda for a Committee or Board Meeting, items must be submitted to the Clerk of the Board 14 days before the meeting. Kelly A.Lore Clerk of the Board (714)593-7433 klore(olocsd.com For any questions on the agenda, Committee members may contact staff at: General Manager Jim Herberg (714)593-7300 iherbem(&ocsd.wm Assistant General Manager Bob Ghirelli (714)593-7400 rghlmlli(a)ocsd.com Director of Engineering Rob Thompson (714)593-7310 rthomosomaDocsd.com Director of Environmental Services Jim Colston (714)593-7450 icolston(d)ocsd.com Director of Finance and Lorenzo Tyner (714)593-7550 Ityner(docsd.wm Administrative Services Director of Human Resources Celia Chandler (714)593-7202 cchandler(@ocsd.com Director of Operations&Maintenance Ed Torres 714 593-7080 etorres ocsd.com 0112 5/2 01 7 OCSD Board!of Directors Agenda Page 8 of 8 BOARD OF DIRECTORS Meeting Date I To of Dir. — of/zs/ 7 AGENDA REPORT ItemNumber Item Numbe a Orange County Sanitation District FROM: James D. Herberg, General Manager Originator: Kelly A. Lore, Clerk of the Board SUBJECT: ELECTION OF VICE CHAIRPERSON OF THE BOARD OF DIRECTORS GENERAL MANAGER'S RECOMMENDATION Conduct an election for the position of Vice Chairperson of the Board of Directors in accordance with Resolution No. OCSD 15-27. SUMMARY Former Chairperson John Nielsen's term expired as a City Council Member in the City of Tustin on December 9, 2016. Vice Chairperson Greg Sebourn automatically succeeded former Chairperson Nielsen as provided in Resolution No. OCSD 15-27. Said Resolution also requires the Board to consider nominations for a new Vice Chairperson; and conduct an election at the next meeting of the Board. At the December 14, 2016 Board Meeting, General Counsel declared nominations open and Directors David Shawver, John Withers and Lucille Kring were nominated as candidates for the office of Vice Chairperson of the Orange County Sanitation District Board of Directors. There were no additional nominations and General Counsel closed the nominations. On January 10, 2017, the Anaheim City Council appointed Lucille Kring to represent the City of Anaheim as the Alternate Director on our Board and, therefore, she is no longer an eligible candidate for this position. General Counsel will preside over the election. Voting will take place by roll call vote. ATTACHMENTS The following attachments) may be viewed on-line at the OCSD website (wwwocsd.corn with the complete agenda package: • Resolution No. OCSD 15-27 Page 1 of 1 RESOLUTION NO. OCSD 15-27 A RESOLUTION OF THE BOARD OF DIRECTORS OF ORANGE COUNTY SANITATION DISTRICT FIXING AND ESTABLISHING RULES OF PROCEDURE FOR THE CONDUCT OF BUSINESS OF THE DISTRICT, AND REPEALING RESOLUTION NO. OCSD 15-01 WHEREAS it is necessary to establish rules of procedure to facilitate the orderly handling of business to come before the Orange County Sanitation District Board of Directors and Standing, Steering, Special and Ad Hoc Committees. NOW THEREFORE, the Board of Directors of the Orange County Sanitation District, DOES HEREBY RESOLVE, DETERMINE AND ORDER: Section 1: Rules of Procedure. That the following rules of procedure be adopted for the conduct of business of the District: A. Regular Meetings. There shall be a regular monthly meeting of the Board of Directors of the District on the fourth Wednesday of every month at 6:00 p.m., in the Administrative Offices of the District, located at 10844 Ellis Avenue, Fountain Valley, California; provided, however, if the fourth Wednesday of the month falls upon a legal holiday, said monthly meeting shall be held on the next day thereafter, at the same time and place, unless the Board adjourns to a different date and time. The Board of Directors may adjourn any regular, special or adjourned special meeting to a time and place certain, as specified in the order of adjournment. B. Special Meetings. A special meeting of the Board of Directors may be called in either one of the following ways: (1) By the Chairperson of the Board of Directors; or (2) By the written request of a majority of the Steering Committee delivered to the Clerk of the Board. The call or notice for special meeting shall be in writing and delivered personally or by mail at least twenty-four(24) hours before the time of such meeting, as specked in the notice. Any notice deposited in the regular mail addressed to a Director at the address he or she has on file with the Clerk of the Board postage prepaid, sixty (60) hours in advance of any such meeting as specked in the notice, shall be presumed to have been delivered. The call or notice shall specify the time and place of the special meeting, a description of the business to be transacted, and copies of all pertinent written materials. OCSD 15-27-1 Such written notice maybe dispensed with as to any Director or Alternate Director who, at or prior to the time the meeting convenes, files with the Clerk of the Board a written waiver of notice. Such waiver may be given by facsimile or electronic mail. Such written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. The Clerk of the Board shall diligently attempt to notify each Director personally of the time, place and purpose of said meeting, not less than twenty-four(24) hours before the time of said meeting. The call or notice shall be posted in the administrative offices' public lobby at least twenty-four (24) hours prior to the special meeting. C. Meetings Adjourned by Clerk of the Board. If at any regular, adjourned regular, special, or adjourned special meeting, there is not a quorum of Directors present, the Clerk of the Board may declare the meeting adjourned to a stated time and place and shall cause written notice of the adjournment to be given in the same manner as for a special meeting, unless such notice is waived as provided for in special meetings. Within twenty-four (24) hours after the time of the adjournment, a copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the meeting was held. D. Notices to News Media. When any local newspaper of general circulation, radio or television station requests, in writing, notices of meetings of the Board of Directors, the Clerk of the Board shall thereafter, until receipt of a notice terminating said request, deliver notices of regular, regular adjourned, and special adjourned meetings to such newspapers, radio or television stations. Delivery shall be made in the same manner as delivery is made to the Directors. E. Conduct of Meetings. (1) Procedural Rules. The procedural rules for debate and action shall be as set forth in Table 1, attached hereto and adopted herein by reference. Robert's Rules of Order shall not be applicable or govern the procedures for the conduct of Sanitation District business. (2) Legal Officer. In any case of ambiguity or uncertainty in the interpretation or application of these Rules to any procedure, the presiding officer may direct such question for a ruling to the Board's General Counsel, who shall be the parliamentarian of the Board. (3) Obtaining the Floor and Making Motions. Any member of the Board wishing to speak, or any member of the public wishing to address the Board, must first be recognized by the Chairperson. The Chairperson must recognize any member of the Board who seeks the floor when appropriately entitled to address the Board. Any member of the Board, including the Chairperson, may bring a matter of business properly before the Board by making a motion. Any member, including OCSD 15-27-2 the Chairperson, except the member making the motion, may second the motion. Once a motion is seconded, it may be opened for discussion and debate, in accordance with the procedures in Subsection (4) below. (4) Rules for Discussion. Debate. and Deliberation by the Board. The procedures for consideration and action on all matters to come before the Board shall be in compliance with the terms of this Section, as follows: (a) Each item on the Agenda will be introduced in a form of a report by either Staff or Counsel. (b) Upon completion of the report, the Chairperson will allow for direct questions regarding the item, by Directors, each in turn, and in the order as selected by the Chairperson. (c) Upon completion of the question period, the Chairperson will entertain a motion and second for consideration by the Board. (d) Discussion among the Directors will follow. Each Director will be recognized to address the Board in the order selected by the Chairperson, with a five (5) minute time limit for each Member wishing to speak on the Agenda item, unless the time limit is waived by the Chairperson. There will be no interruptions of the Director who has been recognized. Attempted interruptions will be declared out-of-order, and the Board Member attempting to interrupt will be asked to remain silent until recognized. (a) As an additional courtesy to everyone, repetition of comments will be discouraged in the interest of time, and at the discretion of the Chairperson, can be declared out-of-order. (f) After each Member who wishes to speak has been recognized and completed his/her remarks, a single three (3) minute period of rebuttal will be allowed any Director, unless the time limit is waived by the Chairperson. (g) If it appears to the Chairperson that any Director is pursuing a line of questioning or commentary due to lack of preparation or prior review with the District's Staff, the Director's time will be declared to have been used up, and no further inquiry will be allowed. (h) Upon adoption of a motion on an Agenda item, there will be no further discussion of that item. (5) Decorum in Debate. All Members shall address their remarks to the Chairperson and confine them to the business then pending and subject to discussion before the Board, avoiding personalities and reflections upon anyone's motives. OCSD 15-27-3 (6) Closing or Limiting Debate. At all times the Board shall endeavor to allow free and open debate among Members of the Board. However, in the discretion of the Chairperson, it may become necessary to close or limit debate, so that action can be taken by the Board. An order by the Chairperson closing or limiting the debate can only be set aside by a majority vote of the Board. F. Quorum. A majority of the Directors shall constitute a quorum of the Board. G. Chairperson and Vice Chairperson of the Board. A Chairperson and Vice Chairperson of the Board shall be elected by a majority vote of Directors at the regular meeting in June of each year, and will assume office July 1st. The nominations for Chairperson and Vice Chairperson shall be made at the regular Board meeting in May of each year. Any person nominated for Chairperson shall be deemed to be nominated for Vice Chairperson in the event the person is not elected as Chairperson. Thereafter, the nominees shall prepare a statement setting forth their qualifications for the office sought. The statements shall be mailed to members of the Board of Directors with the Agenda and other meeting material for the June regular meeting. If only one individual is nominated for Chairperson at the regular Board meeting in May, that individual shall be deemed elected as Chairperson, no election shall be held in June, and the individual shall assume office July tat. If only one individual is nominated for Vice Chairperson at the regular Board meeting in May, that individual shall be deemed elected as Vice Chairperson, no election shall be held in June, and the individual shall assume office July 1 St. The Chairperson and Vice Chairperson shall serve at the pleasure of a majority of the Directors. In the event the office of Chairperson becomes vacant due to resignation or retirement of the incumbent prior to the expiration of the regular term, the Vice Chairperson shall automatically succeed to the office of the Chairperson and shall continue to serve through the remainder of the regular term unless sooner removed by action of a majority of the Directors. In the event the office of Vice Chairperson becomes vacant prior to the expiration of the regular term, nominations and the election of a Director to serve in that capacity shall be conducted at the next regular Board meeting. The person so elected shall serve the balance of the regularly-scheduled term unless sooner removed as a result of action by a majority of the Directors. The Chairperson shall not serve more than two consecutive one-year terms for which he/she has been elected to the office of Chairperson. The Vice Chairperson shall not serve more than two consecutive one-year terms for which he/she has been elected to the office of Vice Chairperson. H. Presiding Officer. The Chairperson of the Board shall preside during meetings of the Directors. In the absence of the Chairperson, the Vice Chairperson shall preside. OCSD 15-27-4 I. Clerk of the Board and Minutes. The Board of Directors shall have a person designated to serve as Clerk of the Board. The Clerk of the Board will be appointed to the position by the General Manager and shall report to the General Manager or a Department Head as designated by the General Manager. The Clerk of the Board will be a regular full time employee, subject to all the rules and policies applicable to all regular full time employees. The Clerk of the Board shall attend all meetings of the Board of Directors, unless excused by the Chairperson, and shall prepare an accurate record of each meeting for submission to the Directors and subsequent approval at the following meeting; provided, however, that when an adjourned, special or special adjourned meeting of the Board of Directors immediately precedes a regular meeting, Minutes of said meeting shall be submitted for approval at the next meeting of the Board following said regular meeting. In the preparation of Official Minutes of a meeting of the Board of Directors, the Clerk of the Board will not record the name of the Director who moves or who seconds the adoption of a motion or Resolution, except the vote of any individual Director shall be recorded upon that Director's request. The Minutes will reflect the votes by name of Director when required by provisions of state law. In the absence of the Clerk of the Board, a Deputy Clerk of the Board shall be appointed to exercise the duties of the Clerk of the Board. J. Regular Business to Come Before the Board of Directors. Insofar as practicable, all items of business to be taken up at a regular meeting of the Board shall be submitted to the Clerk of the Board, who shall include on the Agenda all such items submitted by Directors, the General Manager and General Counsel, and all formal communications. The Clerk of the Board shall mail to each Director a notice of such regular meetings, together with a proposed Agenda, not later than the Friday immediately preceding such regular meetings. Said Agenda, insofar as possible, shall include copies of Resolutions, except as hereafter provided, and a description of all matters to be considered, together with any pertinent written materials. Agendas shall be posted in a location freely accessible to the public not less than seventy-two (72) hours in advance of the meeting. Resolutions designated as "standard" and adopted by the Board of Directors from time to time, and approved as to form and content, need not be included with said Agenda; provided, however, that the information completing said standard Resolutions shall be set forth on the Agenda listing, and copies of said standard Resolutions shall be on file with the Clerk of the Board at the meeting time and place. Items of business not known at the time the regular Agenda is mailed as herein provided, may be considered as supplemental Agenda items; provided that all OCSD 15-27-5 requirements of the Ralph M. Brown Act(California Government Code Sections 54950 et seq.)are satisfied. No business, except with consent of two-thirds of the Directors present (a majority of Directors present for emergency actions), and only if permitted by the Ralph M. Brown Act, not appearing on the regular or supplemental Agendas may be brought before the Board of Directors. The meeting Agenda shall provide for an opportunity for members of the public to address the Board on items on the Agenda and non-Agenda items of public interest. As determined by the Chairperson, speakers may be deferred until the speck Agenda item is taken for discussion, and remarks may be limited to three (3) minutes. Speakers on non-Agenda items may address only items that are within the subject matter jurisdiction of the Board of Directors. Time allotted for such presentations is limited to three (3) minutes or less. Total time allotted for all public input on each non-Agenda item is limited to thirty (30) minutes to one (1) hour, taking into consideration the number of persons filing a request to address the Board. However, time allotments may be waived by a majority vote of the Board. K. Handling of Business and Voting. During the course of a Board meeting, routine matters listed on the Agenda for consideration will be referred to by Agenda Item Number only. Voting on all Resolutions shall be by roll call, except if waived by unanimous voice vote, in which event, the Chairperson may order a unanimous ballot cast in favor of the motion or Resolution under discussion. The name of each Director shall be called only once. On matters of considerable interest or on which there appears to be a controversy, the motion or Resolution shall be read by title or repeated by the Chairperson. The Chairperson shall thereafter call for discussion of the motion or Resolution, at which time any member may discuss the pending matter. Any person other than a Director present at the meeting may speak on the motion if recognized by the Chairperson. Sole discretion as to the extent of discussion outside of the membership of the Board shall rest with the Chairperson. At the close of discussion, the Chairperson may, at the Chairperson's discretion, repeat the motion or Resolution pending, and thereafter, call for a vote. The Clerk of the Board shall determine and state whether or not a motion or Resolution is adopted by roll call vote. On all other matters, the Chairperson shall determine the outcome of the voting. L. Committees. (1) Standing Committees. OCSD 15-276 (a) Steering Committee: There shall be a permanent Committee designated as the Steering Committee, comprised of the Chairperson of the Board, the Vice Chairperson of the Board,the Chairperson of each of the Standing Committees, and three at-large members selected by the Chairperson of the Board. The Vice Chairperson of each of the two Standing Committees shall serve as the designated Alternate, in the absence or inability to serve by any Chairperson. The Committee shall also conduct an annual performance evaluation of the General Manager and submit recommendations on his/her compensation to the Board of Directors. The Committee shall also review the General Manager's evaluation and compensation of the executive management employees, based on established criteria, and executive management's goals and objectives for the following year. The Committee shall also conduct an annual performance evaluation of General Counsel and submit recommendations to the Board of Directors as provided by Resolution OCSD 12-03. The Committee shall receive written requests for a hearing, set hearings or deny the request for a hearing on appeals concerning permit suspension, revocation, or denial as provided by Ordinance OCSD-37. The Committee shall make recommendations to the Board of Directors on labor negotiations and other related activities as may be needed or appropriate. The Committee shall also be authorized to assign new subjects of significant importance to the appropriate Standing Committee for study, evaluation and recommendation. The Steering Committee shall meet on the fourth Wednesday of each month at 5:00 p.m. preceding the Board's meeting, or at the call of the Chairperson of the Board of Directors. (b) Administration Committee: There shall be a permanent Administration Committee (Finance, Human Resources and Information Technology) to advise the Staff and make recommendations on matters related to the financial, budgeting, administrative and personnel policies and programs of the District. The Committee shall review with the Staff the procedures for development, preparation and format of the annual budget and recommend appropriate change, and counsel the Staff during the budget process to assure the proper interpretation and implementation of the Board's policies and that the desired procedures have been followed. The responsibility for consideration and adoption of the District budget rests with the Board of Directors. OCSD 15-27-7 The Committee shall periodically interview and recommend the selection of outside auditors. The Committee shall review the result of the annual audit of the District's accounts with representatives of the outside audit fine, including any comments received recommending improvements. The Committee shall review management's response to these comments and make appropriate recommendations for implementation. Periodically, the Committee shall recommend employment of an outside firm to audit internal control procedures to safeguard the assets of the District. The Committee shall interview and make recommendations on the employment of investment-banking firms, bond counsel, and if necessary or desired,financial advisors, to be used in connection with the District's financing programs. The Committee shall periodically coordinate recommendations on personnel audits of the District's operations or segments of the operations on an as-needed basis. The Committee shall make recommendations on personnel policies and procedures, insurers and coverage, procurement procedures, and such other related activities as may be needed or appropriate. The Chairperson of the Board of Directors shall appoint a Committee Chairperson and a Committee Vice Chairperson for the Administration Committee. The Committee Chairperson and Committee Vice Chairperson shall serve at the pleasure of the Chairperson of the Board of Directors. The Administration Committee shall consist of thirteen members, as follows: (1) The Chairperson of the Board of Directors; (2) The Vice Chairperson of the Board of Directors; (3) The Committee Chair of the Administration Committee; (4) The Committee Vice Chair of the Administration Committee; and (5) Nine additional Board members appointed by the Chairperson of the Board of Directors. Other than the Board Chairperson and the Board Vice Chairperson, no Director who serves on the Operations Committee shall be eligible to serve on the Administration Committee. OCSD 15-27-8 The Administration Committee shall meet on the second Wednesday of each month at 5:00 p.m., or at the call of its Chairperson. (c) Operations Committee. There shall be a permanent Committee designated the Operations Committee (Engineering, Operations & Maintenance and Technical Services). With the goal of compliance with all public health and environmental laws and regulations, the Operations Committee shall review and submit appropriate recommendations on the matters pertaining to the operation of the District Treatment Works, including such matters as current and projected service/flow needs, level and quality of treatment, conservation, recycling and reuse activities, and air quality issues. The Committee shall also review issues pertaining to the District's NPDES Ocean Outfall Discharge Permit, including annual review of the contractor(s) performing the ocean monitoring and research programs required as a condition of said permit, and related issues regarding protection of the marine waters off metropolitan Orange County's coastline from impacts resulting from the District's operations and discharge of treated wastewater. The Committee shall also review matters pertaining to contractual arrangements by the District to provide sewerage services to areas outside the District's boundaries or approved spheres of influence. The Committee shall review plans for the future needs of the District, explore alternatives and make recommendations to the Board of Directors. The Operations Committee shall also review and submit appropriate recommendations on matters pertaining to capital projects which address operational needs, including the selection of professional consulting services to assist in studying, planning and designing needed District Treatment Works and support facilities, including computerized systems, in accordance with the Board's established policies and procedures for procuring such services; the Committee shall further review construction projects for said facilities in accordance with applicable public works laws and Board policies. Said oversight shall include the contracts for professional services and public works construction projects and addenda or change orders thereto. In carrying out its responsibilities, the Committee shall receive advance notice and regular status reports on the projects from Staff, and monitor, visit and observe the District Treatment Works' operational functions and major capital construction projects. The Chairperson of the Board of Directors shall appoint a Committee Chairperson and a Committee Vice Chairperson of the Operations Committee. The Committee Chairperson and Committee Vice Chairperson shall serve at the pleasure of the Chairperson of the Board of Directors. OCSD 15-27-9 The Operations Committee shall consist of fourteen members, as follows: (1) The Chairperson of the Board of Directors; (2) The Vice Chairperson of the Board of Directors; (3) The Committee Chair of the Operations Committee; (4) The Committee Vice Chair of the Operations Committee; and (5) Ten (10) additional Board members appointed by the Chairperson of the Board of Directors. Other than the Board Chairperson and the Board Vice Chairperson, no Director who serves on Administration Committee shall be eligible to serve on the Operations Committee. The Operations Committee shall meet on the first Wednesday of each month at 5:00 p.m., or at the call of its Chairperson. (d) Legislative and Public Affairs Committee: There shall be a permanent Committee designated as the Legislative and Public Affairs Committee, comprised of the Chairperson of the Board, the Vice Chairperson of the Board, and five at-large members selected by the Chairperson of the Board. The Committee shall advise the Staff and make recommendations on matters related to the legislative and public affairs programs of the District. The Legislative and Public Affairs Committee shall meet on the second Monday of each month at 8:00 a.m. or at the call of the Board Chairperson. (2) Special and Ad Hoc Committees. In addition to the Standing Committees, the Chairperson of the Board of Directors, or the Chairperson of a Standing Committee, or a majority of the Directors, may appoint from time to time, Special or Ad Hoc Committees to study and report on specific matters. Such Committees shall be temporary in nature, and their assignments shall pertain to a current, specific issue. Upon completion of the assigned task, the Ad Hoc or Special Committee will be dissolved. The Chairperson and Vice Chairperson of Special and Ad Hoc Committees shall be appointed by the Chairperson of the appointing authority. Each Special and Ad Hoc Committee shall meet at the call of its Chairperson. M. Motion to Refer to a Standing Committee. Any Director at a Board meeting may move to have a policy or any other activity affecting the Sanitation District, or any OCSD 15-27-10 one of the member Agencies, referred to a Standing Committee for study and report. This motion shall be a privileged motion, and when duly seconded, discussion thereof shall be limited to Directors only. Said motion shall receive an affirmative vote of a majority of the Directors for adoption. Section 2: Procedure for Consideration of Demands for Corrective Action. A. Requirement of Written Demand. Prior to any person commencing a judicial action for injunction or mandamus to declare any action taken by the Board void because of failure to observe Brown Act requirements, such person must first serve upon the Clerk of the Board a written demand describing the alleged violation and demanding corrective action. Such demand must be served upon the Clerk of the Board within thirty (30) days of the complained of action. Failure to serve any such demand within this thirty (30) day period shall result in the loss of any right to challenge any action to have been taken in violation of Sections 54953, 54954.2, or 54956 of the California Government Code. B. Consideration of Corrective Action. Upon receipt of such a demand, consideration of the demand shall immediately be placed on the Agenda for the next meeting of the Board of Directors. If the demand is received less than seventy-two (72) hours prior to the time set for the next meeting, the Board may determine that the notice constitutes the initiation of litigation, and that the need to take action on the threatened litigation arose subsequent to the posting of the Agenda, and may consider it at that meeting pursuant to Section 1(J) above. A description of any item so placed on the Agenda shall include both consideration of the demand, and the possibility of corrective action by the Board. In considering such demands, the Board shall first determine, by motion, whether corrective action should be taken. If no motion to take corrective action is carried, the Clerk of the Board shall inform the demanding party in writing of the Board's decision not to cure or correct the challenged action. C. Implementing Corrective Action. If a motion to take corrective action passes, the Chairperson may entertain a motion implementing corrective action. Any motion implementing corrective action shall address the concerns raised in the consideration of corrective action. The motion implementing corrective action may include a motion to rescind prior action taken, as appropriate. Passage of a motion to rescind invalidates prior action only as of the time of the passage of the motion, and not from the date of the initial action. A motion implementing corrective action resulting from a written demand is out-of-order if the action complained of(a) was in connection with the sale or issuance of notes, bonds, or other evidences of indebtedness, or any contract, agreement, or incident thereto; or (b) gave rise to a contractual obligation upon which a party has, in good faith, detrimentally relied. In any event, the Board shall notify the party making the demand in writing of its decision to take corrective action, and shall describe any corrective action taken. This notice shall be given to the demanding party as soon OCSD 15-27-11 as possible after the meeting, but in no event more than thirty (30) days after receipt of the demand. Section 3: Resolution No. OCSD 15-01 is hereby repealed. Section 4: This Resolution shall become effective immediately. PASSED AND ADOPTED at a regular meeting of the Board of Directors held December 16, 2015. John elseri Board 19hair J TVeBoard OCSD 15-27-12 STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) I, Kelly A. Lore, Clerk of the Board of Directors of the Orange County Sanitation District, do hereby certify that the foregoing Resolution No. OCSD 15-27 was passed and adopted at a regular meeting of said Board on the 161h day of December, 2015, by the following vote, to wit: AYES: Beamish; Choi; Curry; Deaton; Ferryman; Jones; Kiley; Kim; Kring; Mills; M. Murphy (Alternate); R. Murphy; Nagel; Neugebauer; Nielsen; Parker; Peterson (Alternate);Shawver; F. Smith; Tinajero; Underhill (Alternate), Withers and Yarc NOES: None ABSTENTIONS: None ABSENT: Bartlett and Sebourn IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of Orange County Sanitation District this 16th day of December, 2015. Ke ly A, re CI rk o t e Board of Directors Orange ounty Sanitation District OCSD 15-27-13 TABLE 1 BOARD PROCEDURES AND ORGANIZATION SUMMARY OF MOTIONS A. PRIVILEGED MOTIONS Kind of Second Vote Motion Required Debatable Amendable Required Purpose Adjourn Yes No No Majority To end the meeting To Take a Yes No No Majority To interrupt a Recess meeting for a short time or to provide an intermission Raise a No No No None To obtain action Question of immediately in an Privilege emergency B. MAIN MOTION AND RELATED SUBSIDIARY MOTIONS Kind of Second Vote Motion Required Debatable Amendable Required Purpose Main Yes Yes Yes Majority To introduce new Motion business Amend Yes Yes Yes Majority To modify or alter Main a motion Motion Substitute Yes Yes Yes Majority To replace the Motion main motion entirely OCSD 15-27-14 Previous Yes No No Majority To close debate Question on the main or amended motion immediately Continue to Yes Yes Yes Majority To defer action a Certain Time To Table Yes No No Majority To discontinue consideration until brought back by vote of the Board Take a Yes No No Majority To bring before Motion the group a from the motion previously Table tabled Limit or Yes No Yes Majority To limit or extend Extend limits of debate Limits of Debate Refer to a Yes Yes Yes Majority To place business Committee in hands of a Committee Withdraw a No No No None To withdraw a Motion motion before it is voted on Reconsider Yes Yes No Majority To secure a new must be by a vote on a motion Director who previously voted voted for the upon prevailing side on the original motion OCSD 15-27-15 C. INCIDENTAL RULES NON-RANKING Kind of Second Vote Motion Required Debatable Amendable Required Purpose Request to Yes No No Two-Thirds To facilitate Suspend business the Rules ordinarily contrary to the rules of the organization Override Yes No No Majority To have Board Order of majority rule on the Chair the order Point of No No No None To enforce the Order rules of the organization OCSD 15-27-16 ITEM NO. 3 Orange County Sanitation District MINUTES BOARD MEETING December 14, 2016 ANITAT� 9 U N 2 ,y t o � ftwowm0i l�NG THE ENV�Q, Administration Building 10844 Ellis Avenue Fountain Valley, California 92708-7018 12/14/2016 Minutes of Board Meeting Page 1 of 17 ROLL CALL A regular meeting of the Board of Directors of the Orange County Sanitation District was called to order by Board Chair Greg Sebourn on December 14, 2016, at 6:02 p.m., in the Administration Building. Director John Withers delivered the invocation and led the Pledge of Allegiance. 1. RECEIVE AND FILE MINUTE EXCERPTS OF MEMBER AGENCIES RELATING TO APPOINTMENTS TO THE ORANGE COUNTY SANITATION DISTRICT BOARD OF DIRECTORS (Clerk of the Board) Kelly Lore, Clerk of the Board, read into the record the Late Communication received after the posting of the agenda regarding two appointments to the Orange County Sanitation District Board of Directors. Received and filed Minute Excerpts of member agencies relating to appointments to the Orange County Sanitation District Board, as follows: City/Agency Active Director Alternate Director City of Cypress Mariellen Yarc Stacy Berry Midway City Sanitary District Al Kdppner Charlie Nguyen The Clerk of the Board declared a quorum present as follows: ACTIVE DIRECTORS ALTERNATE DIRECTORS X Gregory Sebourn, Chair Doug Chaffee X Tom Beamish Tim Shaw X Ellery Deaton Sandra Massa-Lavitt X James M. Ferryman Bob Ooten A Steven Jones Kris Beard X Peter Kim Michele Steggell X Lucille Kring James Vanderbilt X Al Krippner Charlie Nguyen X Richard Murphy Shelley Hasselbrink X Steve Nagel Cheryl Brothers X Glenn Parker Cecilia Hupp X David Shawver Carol Warren X Fred Smith Virginia Vaughn X Teresa Smith Mark Murphy X Michelle Steel Shawn Nelson A Sal Tinajero David Benavides X Chad Wanke VACANT X John Withers Douglas Reinhart X Mariellen Yarc Stacy Berry 12/14/2016 Minutes of Board Meeting Page 2 of 17 City of Huntington Beach - VACANT X Erik Peterson City of Irvine -VACANT A Lynn Schott City of Newport Beach - VACANT X Scott Peotter City of Tustin -VACANT X Allan Bernstein City of Villa Park -VACANT A Diana Fascenelli A Yorba Linda Water District-VACANT VACANT STAFF MEMBERS PRESENT: Jim Herberg, General Manager; Bob Ghirelli, Assistant General Manager; Rob Thompson, Director of Engineering; Lorenzo Tyner, Director of Finance & Administrative Services; Celia Chandler, Director of Human Resources; Ed Torres, Director of Operations and Maintenance; Miriam Angold; Jennifer Cabral; Mike Dorman; Lisa Frigo; Al Garcia; Mark Kawamoto; Tina Knapp; Mark Manzo; Lori McKinley; Kathy Millea; Jeff Mohr; Jim Mullins; Nasrin Nasrollahi; Roya Sohanaki; and Gina Tetsch. OTHERS PRESENT: Brad Hogin (General Counsel) PUBLIC COMMENTS: None. SPECIAL PRESENTATIONS: • Employee Service Awards: Engineering Manager Roya Sohanaki presented an Employee Service Award to Kim Christensen, Senior Scientist— Division 630 (25 years). • Peak Shaving Optimization Strategy Presentation: Director of Operations and Maintenance Ed Torres recognized: Engineer Nasrin Nasrollahi; Senior Engineer Jim Mullins; and Lead Power Plant Operator Bill Pease, who implemented a new peak shaving operating strategy for the Central Generation engines, which produced an annual cost savings of over $500,000. Ms. Nasrollahi provided a PowerPoint presentation and Mr. Mullins responded to questions regarding the process. REPORTS: Chair Sebourn welcomed Al Krippner (Midway City Sanitary District) who was recently appointed to the Board of Directors. Chair Sebourn also stated that at the request of the Clerk of the Board, Item No. 3 would be brought forward prior to the Consent Calendar. General Manager Jim Herberg acknowledged newly promoted Engineering Manager Roya Sohanaki from the Source Protection Division. He informed the Board of the OCSD Administrative Offices holiday closures on December 23; 26, and January 2. He then 12/14/2016 Minutes of Board Meeting Page 3 of 17 provided information on the following: 2017 Ocean Permit application, efforts to address odor complaints in the cities of Placentia and Brea, and the New Board Member Orientation to be held on February 15 & March 15 from 3:00 p.m. —5:00 p.m. General Counsel Brad Hogin provided a PowerPoint presentation and updated the Board on the Tulare Court ruling that was reached in the City of Los Angeles v. Kern County case pertaining to Measure E in which Kern County was the defendant. He provided the case history and the importance of the successful outcome to OCSD. Mr. Hogin then responded to questions from the Directors. Item No. 3 was pulled from the Consent Calendar for separate action. 3. NOMINATION & ELECTION OF VICE CHAIRPERSON OF THE BOARD OF DIRECTORS (Clerk of the Board) General Counsel Brad Hogin provided instructions and facilitated the election for the new Vice Chairperson of the Board of Directors. The following nominations were made for Board Vice Chairperson: • Director F. Smith nominated Director David Shawver. Director T. Smith seconded. • Director Beamish nominated Director John Withers. Alternate Director Peotter seconded. • Director Beamish nominated Director Lucille Kring. Director Withers seconded. There were no further nominations. MOVED. SECONDED,AND DULY CARRIED TO: Close the nominations for Vice Chairperson. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Steel; Wanks; Withers; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott(Alternate); Tinajero; and a representative from YLWD Mr. Hogin announced that the election will be held at the next Board meeting on January 25, 2017. The nominees should send any reference materials they wish to be distributed to the Directors to the Clerk of the Board. 12/14/2016 Minutes of Board Meeting Page 4 of 17 CONSENT CALENDAR: 2. APPROVAL OF MINUTES (Clerk of the Board) MOVED, SECONDED, AND DULY CARRIED TO: Approve the minutes of the regular Board of Directors Meeting held on November 16, 2016. AYES: Beamish; Ferryman; Kim; Kring; Krippner, R. Murphy; Nagel; Nielsen; Parker; Peterson (Alternate); Sebourn; Shawver; F. Smith; Steel; Wanke; Withers; and Yarc NOES: None ABSTENTIONS: Deaton; Peotter (Alternate); and T. Smith ABSENT: Fascenelli (Alternate); Jones; Schott(Alternate); Tinajero; and a representative from YLWD 4. PAYMENT AGREEMENT FOR CAPITAL FACILITIES CAPACITY CHARGES FOR BAR BAKERSM (Lorenzo Tyner) MOVED, SECONDED, AND DULY CARRIED TO: Approve the payment agreement negotiated by the General Manager for the collection of all charges and fees owed for capital facility capacity charges plus interest of 5.5% per annum and administrative fees with Bar Bakers, LLC in a form approved by General Counsel. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Steel; Wanke; Withers; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Tinajero; and a representative from YLWD Director Withers left the meeting at 6:39 p.m. RECEIVE AND FILE: These items require no action;and without objection, will be so ordered by the Board Chair. 5. REPORT OF THE INVESTMENT TRANSACTIONS FOR THE MONTH OF NOVEMBER 2016 (Lorenzo Tyner) Received and filed the report of the Investment Transactions for the month of November 2016. 6. COMMITTEE MINUTES (Clerk of the Board) Received and filed the approved minutes of the following standing committees: A. Operations Committee Meeting of November 2, 2016 12/14/2016 Minutes of Board Meeting Page 5 of 17 B. Legislative and Public Affairs Committee Meeting of November 8, 2016 Director Steel left the meeting at 6:40 p.m. OPERATIONS COMMITTEE: 7. POWER PRODUCTION CONSULTING SERVICES, SPECIFICATION NO. CS-2016-777BD (Ed Torres) Board Chair Seboum recused himself and left the room during the discussion and vote. MOVED. SECONDED, AND DULY CARRIED TO: A. Approve a Professional Consultant Services Agreement with AECOM for Power Production Consulting Services, Specification No. CS 2016-77713D, for an amount not to exceed $191,691; and B. Approve a contingency of$19,169 (10%). AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None Fascenelli (Alternate); Jones; Schott (Alternate); Sebourn ABSENT: (Recused); Steel;Tinajero;Withers; and a representative from YLWD 8. CBS ARCSAFE REMOTE CIRCUIT BREAKER RACKING UNIT (Ed Torres) MOVED, SECONDED, AND DULY CARRIED TO: A. Approve a sole source purchase with CBS Aresafe Inc. for the purchase of four CBS Aresafe remote circuit breaker racking units (two per plant), for a total amount not to exceed $139,920 delivered, plus tax; and B. Approve a contingency of$6,996 (5%). AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None Fascenelli (Alternate); Jones; Schott (Alternate); Steel; ABSENT: Tinajero; Withers; and a representative from YLWD 12/14/2016 Minutes of Board Meeting Page 6 of 17 9. COOPERATIVE PROCUREMENT WITH STATE OF CALIFORNIA UNDER WSCA-NASPO FOR FUEL CARD PROGRAM (Ed Torres) MOVED, SECONDED, AND DULY CARRIED TO: A. Authorize the use of the State of California Department of General Services (DGS) Participating Addendum No. 7-16-99-27 with U.S. Bank National Association dba Voyager Fleet Systems under the State of Washington WSCA-NASPO Commercial Card Solutions Contract Number 00612- Category 2 for the period beginning February 1, 2017 through December 31, 2018 for a total not to exceed $250,000, with four one-year renewal options; and B. Approve a $50,000 (20%) Contingency per year. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanks; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD 11. RETURN ACTIVATED SLUDGE PIPING REPLACEMENT AT ACTIVATED SLUDGE PLANT 1, PROJECT NO. P1-129 (Rob Thompson) MOVED, SECONDED, AND DULY CARRIED TO: Establish a project for Return Activated Sludge Piping Replacement at Activated Sludge Plant 1, Project No. P1- 129, with a budget of$3,300,000. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanks; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD 12. UPDATE PRE-APPROVAL LIST FOR FREQUENTLY PROCURED SOLE SOURCE MATERIALS AND SERVICES (Ed Torres) MOVED, SECONDED, AND DULY CARRIED TO: A. Update authorization and set administrative controls for sole source procurement required to maintain, service, or replace equipment currently in operation at Orange County Sanitation District facilities where the parts and/or service can only be provided by the Original Equipment 12/14/2016 Minutes of Board Meeting Page 7 of 17 Manufacturer (OEM) or their designated representative, for purchases under$100,000, per purchase; and B. Authorize the General Manager to ratify additions or deletions to the OEM list on the General Manager's quarterly approved purchases agenda report. The following equipment, parts, and services from the listed OEMs are pre- approved as sole source items. The information below includes a general category for the part/service, not the specific, existing sole source part/service. • AANDERAA DATA INSTRUMENTS— Current meters • ABB —Variable frequency drives, process controls • ACME — Plant water strainers • AGILENT TECHNOLOGIES— Liquid Chromatography Mass Spectrometer • ALFA-LAVAL— Heat exchangers for digesters, centrifuges • ALLEN BRADLEY— Process controls • AMERON — Manhole Toppers • AM-LINER® PVC— Sewer lining • ARIZONA INSTRUMENT— Odor sensing equipment • ASHBROOK (BELLMER /WINKLER)— Sludge belt filter presses • BASLER— Electrical protective relays and regulators • BEC— Building Electronics control system • BENTLEY NEVADA— Gas compressor, Cen-Gen vibration monitoring • BIO-MERIEUX— Bacterial identification system • BOERGER— Process Pumps • CHESTERTON — Mechanical seals for process equipment • CSI/EMERSON — MSP vibrations • DEZURIK WATER CONTROLS — Process valves • EATON —Variable frequency drives for process pumps • EMERSON/ROSEMOUNT— Process equipment • FOXBORO — Process equipment • GOULD/ITT/YEOMANS — Process pumps • HACH/AMERICAN SIGMA— Liquid samplers • IPT— Limitorqueservices • HIDROSTAL— Process pump motors • LECO — GC Time of Flight mass spectrometer • LIMITORQUE— Process valves • MARLOW— Process pumps • Modicon — PLC parts & service • MOTOROLA, INC — Radios • MOYNO — Process pumps • MSA— Safety gas detection systems • MUFFIN MONSTER—Sludge grinders • PARKSON —Washer compactor • PERKIN ELMER— ICP Mass Spectrometer • PUTZMEISTER— Sludge transfer pumps 12/14/2016 Minutes of Board Meeting Page 8 of 17 • ROBICON —Variable frequency drives for pumps • ROTORK—Valve actuators • SANCON 100 EPDXY/URETHANE — Coating system • SCHWING — Sludge transfer pumps • SEABIRD— Ocean Monitoring instrumentation • SEEPEX— Process pumps • SIEMENS—Variable frequency drives, process controls • SIEMENS DEMAG DELAVAL TURBOMACHINERY, INC. (SDDTI)— Aeration blowers service • SKALAR— BOD robotics • SPARLING INSTRUMENTS — Process flowmeters • TELEDYNE — RD instrumentation • THERMO ELECTRON — ICP Atomic Emission Spectrometer and GC Mass spectrometer • TITUS — Composite Manhole Covers • VAREC — Process safety equipment • VAUGHAN — Process Pumps • WATERS CORPORATION — Liquid chromatograph mass spectrometer • WESTFALIA— Centrifuge parts • WEMCO— Process pumps • XYLEM — Process pumps and ancillary parts The following additional proprietary service providers are pre-approved: • ARC WIRELESS — Paging services • AUTODESK—AutoCADdrawingprogram • CALIFORNIA RECREATION COMPANY— Vessel Nerissa slip fees • CORNERSTONE— On Demand Talent Management System • EMPLOYEE BENEFITS SPECIALIST, INC — Benefits Enrollment System • ENFOTECH — Pre-treatment Software • ESRI —GIS software • FIRST AMERICAN REAL ESTATE— Online Geographic-Realquest Report • GUIDANCE SOFTWARE, INC— E-Discovery Software • GOLDEN BELL— Insect Control • IBM MAXIMO— Enterprise Asset Management Software • INNOVYZE, INC— Hydraulic Monitoring and CCTV Data • L - 3 COMMUNICATIONS HOLDINGS, INC— Internet and Telecom Provider • LABWARE — Laboratory Information Management System • MICROSOFT CORPORATION — Premier Support • MOTOROLA, INC — Radios • NEOGOV— Online Job Application System • ORACLE — Oracle Database • ORACLE / JD EDWARDS — Enterprise One Materials, Equipment & Services • PLANETBIDS, INC—Online vendor and bid Management 12/14/2016 Minutes of Board Meeting Page 9 of 17 • RAND MCNALLY—Thomas Bros. Maps • RBMWARE— Software and 2310 vibration analyzers • STANDARD AUTOMATION dba WONDERWARE WEST— Historian for SCADA system • VISION INTERNET SOLUTIONS, INC — Internet Website • WORKFORCE —Time Entry AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD 13. PROJECT MANAGEMENT INFORMATION SYSTEM, PROJECT NO. J-128 (Rob Thompson) MOVED, SECONDED, AND DULY CARRIED TO: Establish a project for Project Management Information System, Project No. J-128, with a budget of$4,000,000. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD 14. OVERHAUL OF CENTRAL GENERATION ENGINES AT PLANT NOS. 1 AND 2, SPECIFICATION NO. 5-2016-764BD (Ed Torres) MOVED, SECONDED, AND DULY CARRIED TO: A. Approve a Service Contract to NRG Energy Services, LLC for the overhaul of Central Generation Engines, Specification No. 5-2016-764BD, for the period of February 1, 2017 through January 31, 2018, for total amount not to exceed $2,633,119 with four (4) one-year renewal options; and B. Approve an annual contingency of$ 526,624 (20%). AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None 12/14/2016 Minutes of Board Meeting Page 10 of 17 ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD Item No. 10 was pulled from the Consent Calendar and considered separately. 10. DOIG DRIVE BUILDING IMPROVEMENTS, PROJECT NO. 3-65 (Rob Thompson) Alternate Director Peotter expressed concerns as to the cost and extent of the seismic retrofit. Director of Engineering Rob Thompson explained the history of the property purchase and use, seismic regulations and deficiencies, potential liability, and staff's recommendation to comply with new seismic and building codes. The impact to the tenant's operations were discussed and it was noted that this property was not covered by earthquake insurance under our current policy. Discussion ensued as to the best interest of the public and the General Manager explained the property assessment. As further information was requested, this item and Item No. 19 were continued. MOVED. SECONDED, AND DULY CARRIED TO: EStabl Sh a PF9jeGt °^• DGig Diriye c •ia•., i............... •..�� ni.. ac ✓�a, �. a....� ..� $2 nza nnn Continue item to the Operations Committee Meeting for further information and presentation of alternate options. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD LEGISLATIVE AND PUBLIC AFFAIRS COMMITTEE: 15. AB 2022 BOTTLING OF GROUNDWATER REPLENISHMENT SYSTEM (GWRS) WATER (Bob Ghirelli) Assistant General Manager Bob Ghirelli provided a brief overview of the item. MOVED. SECONDED, AND DULY CARRIED TO: A. Authorize $15,000 for the initial testing and bottling of GWRS water, with the cost of the bottling and testing to be shared equally between the Orange County Sanitation District and Orange County Water District; and B. Authorize the General Manager to approve the label for the first-run of GWRS water bottles. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson 12/14/2016 Minutes of Board Meeting Page 11 of 17 (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD 16. APPROVAL OF 2017 LEGISLATIVE AND REGULATORY PLAN (Bob Ghirelli) Board Chair Sebourn stated that the Committee recommended approval of the item and noted that a request for additional items relating to the targeted value of grant funding be brought back at a future Committee meeting. MOVED. SECONDED, AND DULY CARRIED TO: Approve the Orange County Sanitation District 2017 Legislative and Regulatory Plan. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD NON-CONSENT CALENDAR: 17. OPTIONS FOR DISTRIBUTION OF CLOSED SESSION MATERIALS (Jim Herberg) Mr. Herberg provided a brief history of the item and information related to the three options provided by staff. Alternate Director Peotter provided positive feedback into the secure website (Option No. 2) that is used by the City of Newport Beach. MOVED, SECONDED, AND DULY CARRIED TO: Approve Option No. 2 with additional hard copies to be printed for the meeting and collected after the conclusion of the meeting. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None Fascenelli (Alternate); Jones; Schott (Alternate); Steel; ABSENT: Tinajero; Withers; and a representative from YLWD 12/14/2016 Minutes of Board Meeting Page 12 of 17 18. RATIFICATION TO AMEND SYNAGRO CONTRACT (Bob Ghirelli) Mr. Ghirelli provided a brief overview of the item and notified the Directors that the current contractor Synagro West, Inc. has purchased Nursery Products, LLC. who was recently awarded the new contract for hauling and composting of OCSD biosolids. MOVED. SECONDED, AND DULY CARRIED TO: Ratify use of General Manager's emergency purchasing authority in accordance with Ordinance No. OCSD47 Section 1.07 (B), identified as a critical time-sensitive procurement, authorizing Amendment No. 10 to the Synagro West, Inc. contract to include their Nursery Products, LLC facility located at 14479 Cougar Rd., Helendale, California, to haul and compost Orange County Sanitation District's biosolids, at a unit cost of $51.00 per wet ton for the period December 1, 2016 through December 27, 2016. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanks; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD 19. DOIG DRIVE BUILDING IMPROVEMENTS, PROJECT NO. 3-65 (Rob Thompson) MOVED, SECONDED, AND DULY CARRIED TO: X A.....aye a PFaf.....ianaI Design Sept:..,. Agiceement with Inc Greup to e Continue item to the Operations Committee Meeting for further information and presentation of alternate options. AYES: Beamish; Deaton; Ferryman; Kim; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: None ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD 12/14/2016 Minutes of Board Meeting Page 13 of 17 20. WASTEWATER REFUNDING REVENUE OBLIGATIONS SERIES 2017A (Lorenzo Tyner) Director of Finance and Administrative Services Lorenzo Tyner provided additional information regarding the refinancing of the current debt with an anticipated $12 million in savings. He stated that due to the fluctuation in the bond market, this represents a lower number than originally presented at the Administration Committee. MOVED, SECONDED, AND DULY CARRIED TO: A. Adopt Resolution No. OCSD 16-32 entitled: "A Resolution of the Board of Directors of the Orange County Sanitation District authorizing the execution and delivery by the District of an Installment Purchase Agreement, a Trust Agreement and a Continuing Disclosure Agreement in connection with the Orange County Sanitation District Wastewater Refunding Revenue Obligations, Series 2017A, authorizing the execution and delivery of such Revenue Obligations evidencing principal in an aggregate amount not to exceed $91,620,000, approving a Notice of Intention to Sell, authorizing the distribution of an Official Notice Inviting Bids and an Official Statement in connection with the offering and sale of such Revenue Obligations and authorizing the execution of necessary documents and related actions"; and B. That the Orange County Sanitation District Financing Corporation approve the documents supporting and authorizing the Revenue Obligations in an aggregate amount not to exceed $91,620,000. AYES: Beamish; Deaton; Ferryman; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: Kim ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD Chair Sebourn recessed the Orange County Sanitation District Board of Directors Meeting at 7:12 p.m. ...................................... 12/14/2016 Minutes of Board Meeting Page 14 of 17 ORANGE COUNTY SANITATION DISTRICT FINANCING CORPORATION CALL TO ORDER: Chair Sebourn called the Board of Directors, Orange County Sanitation District Financing Corporation meeting to order at 7:12 p.m. Kelly Lore, Secretary of the Financing Corporation, declared a quorum present as follows: ACTIVE DIRECTORS ALTERNATE DIRECTORS X Gregory Sebourn, Chair Doug Chaffee X Tom Beamish Tim Shaw X Ellery Deaton Sandra Massa-Lavitt X James M. Ferryman Bob Ooten A Steven Jones Kris Beard X Peter Kim Michele Steggell X Lucille Kring James Vanderbilt X Al Krippner Charlie Nguyen X Richard Murphy Shelley Hasselbrink X Steve Nagel Cheryl Brothers X Glenn Parker Cecilia Hupp X David Shawver Carol Warren X Fred Smith Virginia Vaughn X Teresa Smith Mark Murphy A Michelle Steel Shawn Nelson A Sal Tinajero David Benavides X Chad Wanke VACANT A John Withers Douglas Reinhart X Mariellen Yarc Stacy Berry City of Huntington Beach -VACANT X Erik Peterson City of Irvine -VACANT A Lynn Schott City of Newport Beach - VACANT X Scott Peotter City of Tustin -VACANT X Allan Bernstein City of Villa Park -VACANT A Diana Fascenelli A Yorba Linda Water District- VACANT VACANT Kelly Lore, Secretary of the Financing Corporation, announced that the members of the Orange County Sanitation District Board of Directors are each being compensated $212.50 for the Board Meeting; there is no additional compensation for the Financing Corporation Meeting. 12/14/2016 Minutes of Board Meeting Page 15 of 17 APPROVAL OF MINUTES: FC-1. Hearing no corrections or amendments made, the minutes for the meeting held on September 28, 2016 were deemed approved as so ordered by the Chair. ACTION ITEM: Director of Finance &Administrative Services Lorenzo Tyner provided an overview of this item, indicating it was related to Item No. 20 on the agenda for the Board of Directors meeting of December 14, 2016. FC-2. MOVED, SECONDED, AND DULY CARRIED TO: Adopt Resolution No. FC-26 entitled: "A Resolution of the Board of Directors of the Orange County Sanitation District Financing Corporation Authorizing the Execution and Delivery by the Corporation of an Installment Purchase Agreement and a Trust Agreement in Connection with the Orange County Sanitation District Wastewater Refunding Revenue Obligations, Series 2017A, Authorizing the execution and Delivery of such Revenue Obligations Evidencing Principal in an Aggregate amount of not to exceed $91,620,000 and Authorizing the execution of necessary documents and related actions." AYES: Beamish; Deaton; Ferryman; Kring; Krippner; R. Murphy; Nagel; Nielsen; Parker; Peotter (Alternate); Peterson (Alternate); Seboum; Shawver; F. Smith; T. Smith; Wanke; and Yarc NOES: None ABSTENTIONS: Kim ABSENT: Fascenelli (Alternate); Jones; Schott (Alternate); Steel; Tinajero; Withers; and a representative from YLWD Chair Sebourn adjourned the meeting of the Board of Directors, Orange County Sanitation District Financing Corporation at 7:15 p.m. ...................................... 12/14/2016 Minutes of Board Meeting Page 16 of 17 Chair Seboum reconvened the meeting of the Board of Directors, Orange County Sanitation District at 7:15 p.m. AB 1234 REPORTS: Director Ferryman provided an update on the NWRI General Manager recruitment. INFORMATION ITEMS: None. CLOSED SESSION: CONVENED IN CLOSED SESSION PURSUANT TO GOVERNMENT CODE SECTION 54956.8: The Board convened in closed session at 7:16 p.m. to discuss two items. Confidential minutes of the Closed Session have been prepared in accordance with the above Government Code Section and are maintained by the Clerk of the Board in the Official Book of Confidential Minutes of Board and Committee Closed Session Meetings. Director Nagel recused himself and left the meeting during Item No. CS-2. RECONVENED IN REGULAR SESSION: The Board reconvened in regular session at 7:28 p.m. CONSIDERATION OF ACTION, IF ANY, ON MATTERS CONSIDERED IN CLOSED SESSION: General Counsel Brad Hogin did not provide a report. OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS, IF ANY: Director Kring wished everyone happy holidays and a happy new year. ADJOURNMENT: At 7:29 p.m. Chair Sebourn adjourned the meeting until the Regular Board Meeting on January 25, 2017 at 6:00 p.m. Submitted by: Kelly A. Lore Clerk of the Board 12/14/2016 Minutes of Board Meeting Page 17 of 17 BOARD OF DIRECTORS Meeting Date TOBtl.ofDir. Ot/25/ll AGENDA REPORT Item Number Them number a Orange County Sanitation District FROM: James D. Herberg, General Manager Originator: Lorenzo Tyner, Director of Administrative Services SUBJECT: DEFERRED PAYMENT AGREEMENT FOR CHARGES AND FEES OWED BY ONE INDUSTRIAL WASTEWATER DISCHARGE PERMITTEE GENERAL MANAGER'S RECOMMENDATION Approve the deferred payment agreement negotiated by the General Manager for the collection of all charges and fees owed for sanitary sewer service charges, plus interest of 5.75% per annum, with Van Law Food Products, Inc., in a form approved by General Counsel. BACKGROUND Van Law Food Products, Inc. is the holder of an industrial wastewater discharge permit issued by the Orange County Sanitation District(Sanitation District)that requires payment of sanitary sewer service charges for the cost of conveying, treating, and disposing of wastewater discharged. Based on the terms of the permit, the permittee is required to pay estimated quarterly sewer service charges that are reconciled annually with actual discharge flows and levels of biochemical oxygen demand and total suspended solids. The permittee is now in default of their payment obligations ($799,041.26) and the General Manager, in accordance with Resolution No. OCSD 11-04, Article III, "Collection of Fees and Charges Relating to Industrial Waste Discharges," has negotiated a 24- month deferred payment agreement with this permittee requiring monthly payment terms plus interest of 5.75% per annum. RELEVANT STANDARDS • Cost effective method to ensure collection of monies owed by customer • Exceptional Customer Service by resolving payment issue with customer PROBLEM Van Law Food Products, Inc. is past due on their invoices and owes $799,041.26. PROPOSED SOLUTION Resolution NO. OCSD 11-04 allows for a deferred payment agreement to allow the permittee to pay the amounts owed while continuing to conduct their business with a valid industrial wastewater discharge permit. If a deferred payment agreement is not approved, the Sanitation District would file an administrative complaint for permit suspension until the invoices are paid. Page 1 of 2 TIMING CONCERNS The deferred payment agreement should be executed as soon as possible to allow the permittee to begin making payments. RAMIFICATIONS OF NOT TAKING ACTION The outstanding amounts owed to the Sanitation District will increase when third quarter invoices are issued. FINANCIAL CONSIDERATIONS The deferred payment agreement complies with Resolution No. OCSD 11-04. ATTACHMENT The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the complete agenda package: • Deferred Payment Agreement—Van Law Food Products, Inc. • AppendixA—Amortization Schedule Page 2 of 2 DEFERRED PAYMENT AGREEMENT THIS AGREEMENT, is entered into, to be effective February 1, 2017, by and between Orange County Sanitation District ("District"), a county sanitation district duly organized and existing pursuant to Section 4700 at. seq. of the Health & Safety Code of the State of California and Van Law Food Products, Inc. RECITALS A. District is a wastewater treatment agency, which, in conjunction with other County Sanitation Districts of Orange County, owns and operates wastewater treatment facilities which receive, treat and discharge, through an ocean outfall, wastewater received from dischargers within its jurisdictional boundaries. In the course of its wastewater treatment operations, and pursuant to District's Wastewater Discharge Regulations ("District's Ordinance"), District issues industrial wastewater discharge permits to certain persons/entities which discharge wastewater into the District's sewerage system. B. As part of the District's wastewater treatment operations, District imposes user fees on permittees, requiring such permittees to pay their share of the District's costs of conveying, treating and disposing of wastewater discharged by such permittees. C. "Van Law Food Products, Inc." or"Permittee" is the holder of an industrial wastewater discharge permit issued by District and is responsible for paying user fees for the cost of conveying, treating and disposing of wastewater discharged from Permittee's facility located at 2325 Moore Ave., Fullerton, California. D. District has issued to Permittee Invoice No.'s 910035, 910098, 530402, and 530720 in the amount of$799,041.26 for user fees then due and owing to the District. E. Van Law Food Products, Inc. has failed to pay the presently owing sum of $799,041.26 and has requested additional time to pay this outstanding obligation. 1 F. Pursuant to Resolution 11-04, District is authorized to enter into deferred payment agreements for limited sums and of limited duration. G. The District and Van Law Food Products, Inc. intend to provide additional time for Van Law Food Products, Inc. to pay to District the amounts presently due on Invoice No.'s 910035, 910098, 530402, and 530720 in accordance with the requirements of Resolution 11-04. NOW, THEREFORE, in consideration of the facts recited above and the conditions, covenants and promises set forth below, District and Van Law Food Products, Inc. agree as follows: AGREEMENT 1. Permittee shall make payments (including principal and interest)to the District, pursuant to the attached payment schedule (Appendix A). 2. Permittee shall pay to District all other invoices issued by the District during the term of this Agreement in accordance with the provisions of District's Ordinance, 3. If any payment described in Paragraph 1 herein is not received by the District on or before the due date specified, or if any payment described in Paragraph 2 herein is not received by District in accordance with the provisions of District's Ordinance, the entire balance then owing shall become immediately due and payable and interest at the rate of ten percent (10%) per annum shall accrue on any such unpaid balance from the date of acceleration until the date that the balance due is fully paid to the District. 4. Van Law Food Products, Inc. acknowledges that the failure to pay current invoices, or failure to pay any installment in accordance with the schedule set forth in Paragraph 1 herein, may be grounds for revocation of any industrial wastewater discharge permit issued to Van Law Food Products, Inc. by District, and shall additionally be deemed a breach of this Agreement, thereby giving rise to all legal 2 remedies available to District. 5. In consideration of the foregoing, District agrees to refrain from instituting collection or permit revocation proceedings, which remedies are presently available to the District as a result of Van Law Food Products, Inc.' current failure to pay Invoice No.'s 910035, 910098, 530402, and 530720. This provision to refrain from instituting such proceedings shall be effective with regard to Invoice No.'s 910035, 910098, 530402, and 530720 as long as Van Law Food Products, Inc. remains in compliance with the terms of this Agreement. 6. Should any litigation be commenced between the District and Van Law Food Products, Inc. regarding enforcement of this Agreement, or the rights and any duties of the parties in relation thereto, the prevailing party in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its attorney fees and costs in the litigation which shall be determined by the court in such litigation or in a separate action brought for that purpose. 7. Nothing in this Agreement shall affect Van Law Food Products, Inc. obligation to pay current and/or future charges for use of District's sewerage system or Van Law Food Products, Inc.' obligation to comply with all other conditions and requirements of its industrial wastewater discharge permit and the District's Ordinance. 8. Nothing herein shall affect the District's right to enforce all requirements and conditions of the District's Ordinance. 9. This Agreement is made only for the benefit of the parties hereto. It is not intended that any right under this Agreement shall accrue to any third person. 3 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first written above. Orange County Sanitation District BY: Gregory C. Sebourn, PLS. Board Chair ATTEST: Kelly A. Lore Clerk of the Board APPROVED AS TO FORM: Bradley R. Hogin, General Counsel Van Law Food Products, Inc. By: John Gilbert, President 4 APPENDIX A Payment Due Administrative No. Date Principal Interest Charge Total 1 2/1/2017 $31,495.31 $3,828.74 $25.00 $35,349.05 2 3/1/2017 $31,646.23 $3,677.82 $25.00 $35,349.05 3 4/1/2017 $31,797.87 $3,526.18 $25.00 $35,349.05 4 5/1/2017 $31,950.23 $3,373.82 $25.00 $35,349.05 5 6/1/2017 $32,103.33 $3,220.72 $25.00 $35,349.05 6 7/1/2017 $32,257.16 $3,066.89 $25.00 $35,349.05 7 8/1/2017 $32,411.72 $2,912.33 $25.00 $35,349.05 8 9/1/2017 $32,567.03 $2,757.02 $25.00 $35,349.05 9 10/1/2017 $32,723.08 $2,600.97 $25.00 $35,349.05 10 11/1/2017 $32,879.88 $2,444.17 $25.00 $35,349.05 11 12/1/2017 $33,037.43 $2,286.62 $25.00 $35,349.05 12 1/1/2018 $33,195.73 $2,128.32 $25.00 $35,349.05 13 2/1/2018 $33,354.79 $1,969.26 $25.00 $35,349.05 14 3/1/2018 $33,514.62 $1,809.43 $25.00 $35,349.05 15 4/1/2018 $33,675.21 $1,648.84 $25.00 $35,349.05 16 5/1/2018 $33,836.57 $1,487.48 $25.00 $35,349.05 17 6/1/2018 $33,998.70 $1,325.35 $25.00 $35,349.05 18 7/1/2018 $34,161.61 $1,162.44 $25.00 $35,349.05 19 8/1/2018 $34,325.30 $998.75 $25.00 $35,349.05 20 9/1/2018 $34,489.78 $834.27 $25.00 $35,349.05 21 10/1/2018 $34,655.04 $669.01 $25.00 $35,349.05 22 11/1/2018 $34,821.10 $502.95 $25.00 $35,349.05 23 12/1/2018 $34,987.95 $336.10 $25.00 $35,349.05 24 1/1/2019 $35,155.60 $168.45 $25.00 $35,349.05 Totals $799,041.26 $48,735.96 $600.00 $848,377.22 BOARD OF DIRECTORS Meeting Date TOBE.Or Dir. -- Ol/zs/17 AGENDA REPORT ItemNumber IemNumber s Orange County Sanitation District FROM: James D. Herberg, General Manager Originator: Ed Torres, Director of Operations and Maintenance SUBJECT: TAYLOR-DUNN CART PURCHASE FROM YALE CHASE EQUIPMENT AND SERVICES, INC. GENERAL MANAGER'S RECOMMENDATION A. Authorize the award of a sole source purchase of nineteen (19) Taylor-Dunn electric carts from Yale Chase Equipment and Services, Inc., in accordance with 03/28/01 Minute Order 12(C)(2), for a total cost of $212,127 to include tax and delivery; and B. Approve a contingency of$10,606 (5%). BACKGROUND The Orange County Sanitation District (Sanitation District) has approximately 180 carts. Staff uses the carts to travel throughout the treatment plants. Carts are used in place of cars or trucks to reduce costs and pollution. The Sanitation District's FY 2016-17 budget provides for replacement of 19 carts that are at the end of their useful life or that require excessive maintenance to keep operational. In 2001, the Sanitation District recognized Taylor-Dunn as the Sanitation District's standard and sole manufacturer for future electric cart purchases. The Board of Directors (Board) recognized the need to reduce maintenance costs associated with multiple vendors, training costs, and parts/ warehouse costs. In addition, Taylor-Dunn provides carts to many of the public agencies in our area, including schools, water districts, and other municipalities. The Sanitation District has found Taylor-Dunn units more reliable than other manufacturers and are able to handle transporting heavy tools and materials, and hold up to salt air. RELEVANT STANDARDS • Efficiency efforts reduce the cost to provide the current service level or standard • Consider life-cycle costs in all decisions PROBLEM The Sanitation District identified 18 carts for replacement in FY 2016-17 and one new addition for the Operations and Maintenance division. The carts that need replacement Page 1 of 2 are extremely corroded due to exposure to salt air or cannot be properly maintained due to age. PROPOSED SOLUTION Procure 19 replacement carts. TIMING CONCERNS Staff uses the carts to travel through the treatment plants and deliver parts, materials, and tools to a project location. The carts need to be removed from service due to corrosion or inability to maintain them. Without carts, work assignments would be slowed down. RAMIFICATIONS OF NOT TAKING ACTION If these vehicles are not replaced, we would incur excessive maintenance costs and increased exposure to safety and reliability issues. In addition, delaying the purchase would result in increased travel time and decreased efficiency associated with moving parts, tools, and staff throughout the treatment plants. PRIOR COMMITTEE/BOARD ACTIONS March 2001 - Minute Order 12(C)(2) - Authorized the Sanitation District to recognize Taylor-Dunn as the Sanitation District's standard and sole manufacturer for future electric cart purchases without future Board approval. ADDITIONAL INFORMATION The carts will be purchased from Yale Chase Equipment and Services, Inc. as they are the only authorized exclusive dealer for Taylor-Dunn products in Los Angeles, Orange, Riverside, and San Bernardino counties. FINANCIAL CONSIDERATIONS This request complies with authority levels of the Sanitation District's Purchasing Ordinance. These items have been budgeted in the 2016-17 & 2017-18 Capital Equipment Budget (Proposed Capital Equipment Budget Detail, Section 8, pg. 104). Date of Approval Contract Amount Contingency 1/25/2017 $212,126.79 $10,606 ATTACHMENT The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.com) with the complete agenda package: N/A Page 2 of 2 BOARD OF DIRECTORS Meeting Date TOBE.Or Dir. -- Ol/zs/17 AGENDA REPORT Item Item fi Orange County Sanitation District FROM: James D. Herberg, General Manager Originator: Lorenzo Tyner, Director of Finance and Administrative Services SUBJECT: MEMORANDUM OF UNDERSTANDING WITH ORANGE COUNTY EMPLOYEES' RETIREMENT SYSTEM REGARDING PAYMENT OF UNFUNDED ACTUARIAL ACCRUED LIABILITIES GENERAL MANAGER'S RECOMMENDATION Adopt Resolution No. OCSD 17-01 entitled; "A Resolution of the Board of Directors of the Orange County Sanitation District authorizing the General Manager to enter into a Memorandum of Understanding with the Orange County Employees' Retirement System establishing the terms to recognize and apply the District's full satisfaction of its Unfunded Accrued Actuarial Liability and deferred Unfunded Accrued Actuarial Liability." BACKGROUND On November 1, 2016, the Orange County Sanitation District(Sanitation District) made an Unfunded Accrued Actuarial Liability (UAAL) payment totaling $39,116,110 in its defined pension plan administered by the Orange County Employee's Retirement System (OCERS), which paid off both the Sanitation District's UAAL and proportionate share of the deferred losses not yet recognized in the December 31, 2015 actuarial valuation (deferred investment loss). As a result of the Sanitation District paying off the UAAL and making the additional payment on the deferred losses, OCERS' actuary recommended that a bookkeeping account be created because the deferred losses are not yet part of the UAAL as reported in the December 31, 2015 Actuarial Valuation. The bookkeeping account provides a mechanism to track the contributions made related to the deferred losses. The balance in the account will not be included immediately as valuation assets and therefore will not be used as part of the calculation of UAAL as of December 31, 2016. Instead, the balance in the account will be used to offset UAAL as it is recognized in future valuations. The OCERS Board of Retirement approved the bookkeeping account at its December 19, 2016 meeting with direction to staff to memorialize the terms and conditions under which the OCERS shall recognize and apply the balance in the new bookkeeping account in future valuations. OCERS drafted a Memorandum of Understanding (MOU) that specifies how the contributions made by the Sanitation District will be accounted for by OCERS. including how interest will be applied and when balances in the bookkeeping account will be moved out of the account and become valuation assets to cover UAAL. The Sanitation District's General Counsel has reviewed the MOU and drafted Resolution OCSD 17-01, which, if approved, will give the General Manager the authority to execute the MOU between OCERS and Sanitation District. Page 1 of 3 RELEVANT STANDARDS • Ensure the public's money is wisely spent PROBLEM There is currently no mechanism to track the contributions made related to the deferred losses. The balance in the account will not be included immediately as valuation assets and, therefore, will not be used as part of OCERS calculation of the UAAL as of December 31, 2016. Instead, the balance in the account needs to offset the UAAL as it is recognized in future valuations. PROPOSED SOLUTION The bookkeeping account provides a mechanism to track the contributions made related to the deferred losses. The balance in the account will not be included immediately as valuation assets and, therefore, will not be used as part of the calculation of UAAL as of December 31, 2016. Instead, the balance in the account will be used to offset UAAL as it is recognized in future valuations. The OCERS Board of Retirement approved the bookkeeping account at its December 19, 2016 meeting with direction to staff to memorialize the terms and conditions under which the OCERS shall recognize and apply the balance in the new bookkeeping account in future valuations. TIMING CONCERNS OCERS approved the MOU at its January 17, 2017 Board meeting. RAMIFICATIONS OF NOT TAKING ACTION OCERS has no direction from the Sanitation District on an agreed upon procedure for tracking the UAAL contributions made by the Sanitation District related to the deferred investment losses. PRIOR COMMITTEE/BOARD ACTIONS October 2016-Board approved up to$40 million pay-down against its UAAL with OCERS. July 2015 - Board approved the FY 2015-16 Budget Update, which included a line item for the pay-down of$50 million in UAAL with OCERS. July 2014-Board action approved a $125 million pay-down against its UAAL with OCERS. FINANCIAL CONSIDERATIONS N/A Page 2 of 3 ATTACHMENT The following attechment(s)are included in hard copy and may also be viewed on-line at the OCSD website (www.ocsd.com) with the complete agenda package: • Resolution No. OCSD 17-01 • Memorandum of Understanding Page 3 of 3 RESOLUTION NO. OCSD 17-01 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE ORANGE COUNTY SANITATION DISTRICT AUTHORIZING THE GENERAL MANAGER TO ENTER INTO A MEMORANDUM OF UNDERSTANDING WITH THE ORANGE COUNTY EMPLOYEES' RETIREMENT SYSTEM ESTABLISHING THE TERMS TO RECOGNIZE AND APPLY THE DISTRICT'S FULL SATISFACTION OF ITS UNFUNDED ACCRUED ACTUARIAL LIABILITY AND DEFERRED UNFUNDED ACCRUED ACTUARIAL LIABILITY. WHEREAS, as a participating employer in the Orange County Employees' Retirement System ("OCERS"), the Orange County Sanitation District ("District") contributes to OCERS on an annual basis such contributions as OCERS determines are due and payable to OCERS from the District, as an employer, to help fund the retirement and other benefits due to District employees and their beneficiaries; and WHEREAS, the District's annual contributions as determined by OCERS are currently calculated as a percentage of pensionable payroll that includes both a normal contribution rate ("Normal Cost") and a rate that reflects the amortization of an unfunded accrued actuarial liability ("UAAL") attributable to the District, pursuant to Government Code sections 31453 and 31453.5; and WHEREAS, as of November 1, 2016, the total UAAL attributable to the District was $5,587,004; and WHEREAS, as of November 1, 2016, an additional UAAL attributable to the District on the books of OCERS totaled $33,529,106 ("Deferred UAAL"), which amount has been deferred and is projected to be due and payable by the District in amortizing installments commencing July 1, 2018; and WHEREAS, the amortizing installments of District's Deferred UAAL in any future year may be more or less than the total UAAL attributable to the District in such future year("Actual UAAL"); and WHEREAS, on or about November 1, 2016, the District contributed the sum of $39,116,110 to OCERS in full satisfaction of its UAAL and Deferred UAAL; and WHEREAS, the District and OCERS wish to enter into a Memorandum of Understanding ("MOU") to set forth the terms and conditions under which OCERS shall recognize and apply the District's Contribution. 1215205.1 OCSD 17-01-1 NOW, THEREFORE, the Board of Directors of Orange County Sanitation District, DOES HEREBY RESOLVE, DETERMINE, AND ORDER: Section 1: The above recitals are true and correct and are incorporated herein by reference. Section 2: That the General Manager, or his designee, be, and is hereby, authorized and directed to enter into a Memorandum of Understanding to set forth the terms and conditions under which OCERS shall recognize and apply the District's contribution of contribution of $39,116,110 to OCERS in full satisfaction of its UAAL and Deferred UAAL. Section 3: The Clerk of the Board shall certify to the adoption of this Resolution. PASSED AND ADOPTED at a regular meeting of the Board of Directors held January 25, 2017. Gregory C. Sebourn Board Chairman Orange County Sanitation District ATTEST: Kelly A. Lore Clerk of the Board Orange County Sanitation District APPROVED AS TO FORM: Bradley R. Hogin General Counsel Orange County Sanitation District 1215205.1 OCSD 17-01-2 STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) I, Kelly A. Lore, Clerk of the Board of Directors of the Orange County Sanitation District, do hereby certify that the foregoing Resolution No. OCSD 17-01 was passed and adopted at a regular meeting of said Board on the 251h day of January 2017, by the following vote, to wit: AYES: NOES: ABSTENTIONS: ABSENT: IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of Orange County Sanitation District this 2511 day of January 2017. Kelly A. Lore Clerk of the Board of Directors Orange County Sanitation District 1215205.1 OCSD 17-01-3 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ("MOU") is entered into effective the 1st day of November, 2016, by and between the Orange County Employees' Retirement System ("OCERS") and the Orange County Sanitation District ("District"), by and through the parties' respective governing bodies. WHEREAS, OCERS is a multiple employer trust fund that provides retirement, disability and other benefits to the active, deferred and retired employees of the County of Orange, the District and other participating employers, and their beneficiaries; and WHEREAS, The Board of Retirement of OCERS has the sole, exclusive and plenary constitutional and statutory authority to administer the retirement system and invest the funds of the system for the benefit of its members and their beneficiaries; and WHEREAS, as a participating employer in OCERS, District contributes to OCERS on an annual basis such contributions as OCERS determines are due and payable to OCERS from District, as an employer, to help fund the benefits referred to above; and WHEREAS, District's annual contributions as determined by OCERS currently are calculated as a percentage of pensionable payroll that includes both a normal contribution rate ("Normal Cost") and a rate that reflects the amortization of an unfunded accrued actuarial liability attributable to District, pursuant to Government Code sections 31453 and 31453.5; and WHEREAS, as of November 1, 2016, the total unfunded accrued actuarial liability attributable to the District ("UAAL") was $5,587,004; and WHEREAS, as of November 1, 2016, an additional unfunded accrued actuarial liability attributable to District on the books of OCERS totaled $33,529,106 ("Deferred UAAL"), which amount has been deferred and is projected to be due and payable by the District in amortizing installments commencing July 1, 2018; and WHEREAS, the amortizing installments of District's Deferred UAAL in any future year may be more or less than the total unfunded accrued actuarial liability attributable to the District in such future year ("Actual UAAL"); and WHEREAS, on or about November 1, 2016, the District contributed the sum of $39,116,110 to OCERS in full satisfaction of its UAAL and Deferred UAAL ("Contribution"); and WHEREAS, the District and OCERS wish to enter into this MOU to set forth the terms and conditions under which the OCERS shall recognize and apply District's Contribution; and 1 WHEREAS, each of the governing bodies of OCERS and District has duly adopted a resolution formally accepting the terms and conditions of this MOU and authorizing its executive officer to execute this MOU on its behalf. Copies of such resolutions are attached hereto and made a part hereof by this reference. NOW THEREFORE OCERS and the District agree as follows: 1. Crediting of UAAL Portion of Contribution. OCERS agrees to credit$5,269,445 of the Contribution towards the District's UAAL as of December 31, 2015, due and payable by District to OCERS as part of its total contribution for the period July 1, 2017 through and including June 30, 2018. OCERS further agrees to credit $317,559 of the Contribution towards the District's UAAL as of December 31, 2016, due and payable by District to OCERS as part of its total contribution for the period July 1, 2018 through and including June 30, 2019. No portion of the Contribution shall be credited towards the Normal Cost portion of the District's employer contribution for such periods. OCERS shall further recognize the above credits in all financial statements and other reports prepared in accordance with generally accepted accounting principles and as required by the Government Accounting Standards Board. Upon being credited, these amounts shall be considered as "valuation assets" to be counted against the liabilities of the District in calculating its share of future unfunded accrued actuarial liabilities. 2. Crediting of Deferred UAAL Portion of Contribution. A. Effective November 1, 2016, OCERS shall establish a reserve account on its books and records ("OCSD Reserve Account") and shall credit the portion of the Contribution that represents payment of the District's Deferred UAAL, in the amount of$33,529,106, to the OCSD Reserve Account. B. Commencing as of December 31, 2016 and annually thereafter until there is no remaining balance of funds in the OCSD Reserve Account, OCERS shall transfer from the OCSD Reserve Account into OCERS' Employer Reserve Account the amount necessary to satisfy the Actual UAAL attributed to the District, as determined by OCERS pursuant to Government Code sections 31453 and 31453.5. The intent of this transfer is to ensure that the District's future annual employer contribution obligation to OCERS shall consist of either the Normal Cost portion only, or the Normal Cost and amortizing installments of only such amount of future Actual UAAL that exceeds the amount of funds remaining in the OCSD Reserve Account. C. The amounts in the OCSD Reserve Account from time to time shall not be considered "valuation assets"on OCERS' books and records. Such amounts shall not be counted in calculating the District's share of future Actual UAAL, but shall be held and transferred only as described in Par. 2.B. above. - 2 - D. OCERS shall not credit any amount of the OCSD Reserve Account to the District's Normal Cost portion of its annual employer contribution at any time. The District shall remain responsible for making its full Normal Cost contributions to OCERS as determined from time to time. 3. Commingling of Funds. Upon crediting by OCERS, all amounts of the Contribution shall be commingled with all other funds and assets of the OCERS' trust fund, to be administered, invested and disbursed within the sole, exclusive and plenary authority of the OCERS' Board of Retirement, as provided by law. None of the Contribution shall remain property of the District, nor shall any such funds be disbursed to or on behalf of the District for any purpose other than the payment of benefits to OCERS' members and administrative and investment expenses of the retirement system. 4. Crediting of Interest. OCERS shall credit (or debit) interest to the OCSD Reserve Account at the actual annual rate of return (or loss) experienced by OCERS' entire trust fund on a calendar year basis. Interest crediting (or debiting) for the calendar year shall occur on or before March 31 of each subsequent year, on the balance in the OCSD Reserve Account as of December 31 of the immediately preceding year. 5. OCERS' Sole Right to Determine Contributions and Appropriations. Notwithstanding any provision in this MOU to the contrary, the parties acknowledge and agree that OCERS has the sole, exclusive and plenary authority to determine employer and employee contribution rates and appropriation amounts; that OCERS may change, amend or otherwise alter its practices and policies regarding the setting of contribution rates and amounts of appropriations to be made by its participating employers, including but not limited to District; and that District is obligated to make the contributions and appropriations required by OCERS, all as provided by law. 6. Additional Provisions. A. This MOU shall be governed by and interpreted under the laws of the State of California applicable to contracts made and to be performed entirely within the State. B. This MOU sets forth the entire agreement between OCERS and District with regard to the subject matter herein, and fully supersedes any and all prior agreements and understandings between them pertaining to the subject matter of this MOU. The parties agree that no change to or modification of this MOU shall be valid or binding unless it is in writing and signed by an authorized signatory for each of the parties. C. The language of all parts in this MOU shall be construed as a whole, according to its fair meaning, and not strictly for or against either party. Should any provision in this MOU be declared or determined to be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected and the illegal or invalid part, term, or provision shall be deemed not to be part of this MOU, and all remaining provisions shall remain valid and enforceable. The parties further - 3 - agree that in the event any provision of this MOU is held to be illegal or unenforceable, each will fully cooperate with the other to effectuate its purpose to conform the provision(s) to law. D. This MOU is deemed to have been drafted jointly by the parties. Any uncertainty or ambiguity shall not be construed for or against any party, since both parties have participated in the negotiations and drafting of this MOU. E. This MOU may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Furthermore, signatures delivered via electronic transmission shall have the same force, validity and effect as the originals thereof. F. Should any dispute arise between the parties as to their respective rights and obligations under this MOU, the parties will make a good faith effort to resolve their differences informally and without resort to legal process. Should any such dispute remain unresolved after 90 days after one party notifies the other party in writing of the dispute (unless shortened or extended by mutual agreement of the parties), either party may commence legal action as provided by law to resolve the matter. In any such legal action, the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs of suit. 7. Term. This agreement shall terminate and be of no further force or effect at such time as there is no remaining balance in the OCSD Reserve Account. WITNESS THE EXECUTION HEREOF on the day and year first hereinabove written. ORANGE COUNTY SANITATION ORANGE COUNTY EMPLOYEES' DISTRICT RETIREMENT SYSTEM By By Authorized Signatory Authorized Signatory Name: James D. Herberg Name: Title: General Manager Title: Dated: January 25, 2017 Dated: -4- BOARD OF DIRECTORS Meeting Date TOBE.Or Dk. -- Ol/zs/17 AGENDA REPORT Item Item 7 Orange County Sanitation District FROM: James D. Herberg, General Manager Originator: Lorenzo Tyner, Director of Finance and Administrative Services SUBJECT: REPORT OF THE INVESTMENT TRANSACTIONS FOR THE MONTH OF DECEMBER 2016 GENERAL MANAGER'S RECOMMENDATION Receive and file the report of the Investment Transactions for the month of December 2016. BACKGROUND The CA Government Code requires that a monthly report of investment transactions be provided to the legislative body. Attached is the monthly report of investment transactions for the month ended December 31, 2016. RELEVANT STANDARDS • CA Government Code Section 53607 PRIOR COMMITTEE/BOARD ACTIONS N/A FINANCIAL CONSIDERATIONS N/A ATTACHMENT The following attachment(s)is included in hard copy and may also be viewed on-line at the OCSD website (mm w.ocsd.com) with the complete agenda package: • Report of the Investment Transactions for the month ended December 31, 2016 Page 1 of 1 C." Orange County Sanitation District Consolidated Transaction Ledger Account#10283 11/30/16 Thing 12/31/16 Transaction Settlement Acq/Disp Interest Type Data CUSIP Quantity Security Description Price Yield Amount PurlSold Total Amount GainfLoss ACQUISITIONS Purchase 12/01/2016 261908107 174,019.80 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 174,019.80 0.00 174,019.80 0.00 Purchase 12/02/2016 261908107 653.25 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 653.25 0.00 653.25 0.00 Purchase 12/02/2016 261908107 834.05 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 834.05 0.00 834.05 0.00 Purchase 12/05Q016 261908107 11,040.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 11,040.00 0.00 11,040.00 0.00 Purchase 12/06/2016 912796KEB 1,250,000.00 US Treasury Bill 99.948 0.37% 1,249,349.22 0.00 1,249,349.22 0.00 0.37%Due 1/26/2017 Purchase 12/07/2016 261908107 11,014.18 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 11,014.18 0.00 11,014.18 0.00 Purchase 12/12/2016 261908107 43,750.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 43,750.00 0.00 43,750.00 0.00 Purchase 12/14/2016 261908107 28,125.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 28,125.00 0.00 28,125.00 0.00 Purchase 12/14/2016 912828T67 6,000,000.00 US Treasury Note 96.895 1.92% 5,813,691.98 9,116.02 5,822,808.00 0.00 1.25%Due 10/31/2021 Purchase 12/15/2016 261908107 39,903.27 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 39,903.27 0.00 39,903.27 0.00 Purchase 12/15/2016 261908107 2,096.58 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 2,096.58 0.00 2,096.58 0.00 Purchase 12/15/2016 261908107 1,859.13 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,859.13 0.00 1,859.13 0.00 Purchase 12/15/2016 261908107 2,706.83 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 2,706.83 0.00 2,706.83 0.00 Purchase 12/15/2016 261908107 3,657.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 3,657.00 0.00 3,657.00 0.00 Purchase 12/15/2016 261908107 1,702.02 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,702.02 0.00 1,702.02 0.00 Purchase 12/15/2016 261908107 23.86 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 23.86 0.00 23.86 0.00 Purchase 12/15/2016 261908107 217,359.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 217,359.00 0.00 217,359.00 0.00 Purchase 12/15/2016 261908107 194,725.17 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 194,725.17 0.00 194,725.17 0.00 Purchase 12/15/2016 261908107 168,337.27 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 168,337.27 0.00 168,337.27 0.00 Purchase 12/15/2016 261908107 247,849.46 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 247,849.46 0.00 247,849.46 0.00 Purchase 12/15/2016 261908107 2,742.67 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 2,742.67 0.00 2,742.67 0.00 Purchase 12/16/2016 261908107 1,139.94 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,139.94 0.00 1,139.94 0.00 Purchase 12/19/2016 261908107 1,000,000.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,000,000.00 0.00 1,000,000.00 0.00 Purchase 12/19/2016 261908107 1,010,133.33 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,010,133.33 0.00 1,010,133.33 0.00 Purchase 12/19/2016 261908107 92,248.47 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 92,248.47 0.00 92,248.47 0.00 Purchase 12/19/2016 261908107 248,684.56 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 248,684.56 0.00 248,684.56 0.00 Purchase 12/19/2016 313397AV3 2,000,000.00 FHUMC Discount Note 99.958 0.48% 1,999,164.44 0.00 1,999,164.44 0.00 0.47%Due 1/20/2017 Purchase 12/20/2016 261908107 255.16 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 255.16 0.00 255.16 0.00 Cheadle,Asset Management-CONFIDENTIAL E. Wion Tme:116120178:17:07 AM C." Orange County Sanitation District Consolidated Transaction Ledger Account#10283 11/30/16 Thm 12/31/16 Transaction Settlement Acq/Disp Interest ,Type Data CUSIP Quantity Security Description Price Yield Amount PurlSold Total Amount GainfLoss ACQUISITIONS Purchase 12/20/2016 261908107 283.20 Dreyfus Tmy/Agcy Cash Management 521 1.000 0.21 % 283.20 0.00 283.20 0.00 Purchase 12/20/2016 261908107 593.14 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 593.14 0.00 593.14 0.00 Purchase 12/20/2016 261908107 201.13 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 201.13 0.00 201.13 0.00 Purchase 12/20/2016 261908107 1,714.94 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,714.94 0.00 1,714.94 0.00 Purchase 12/20/2016 89113E7K6 1,150,000.00 Toronto Dominion Yankee CD 99.997 1.15% 1,149,964.14 8,412.57 1,158,376.71 0.00 I A 5%Due 5/3/2017 Purchase 12/21/2016 261908107 227,144.23 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 227,144.23 0.00 227,144.23 0.00 Purchase 12/21/2016 313385BF2 1,000,000.00 FHLB Discount Note 99.944 0.51 % 999,444.44 0.00 999,444.44 0.00 0.5%Due WO/2017 Purchase 12/22/2016 261908107 37,500.00 Dreyfus Trey/Agoy Cash Management 521 1.000 0.21 % 37,500.00 0.00 37,500.00 0.00 Purchase 12/22/2016 89233GV29 6,300,000.00 Toyota Mawr Credit Discount CP 99.238 1.26% 6,251,999.25 0.00 6,251,999.25 0.00 1.23%Due 8/2/2017 Purchase 12/22/2016 912828TM 4,000,000.00 US Treasury Note 95.922 2.03% 3,836,888.40 10,260.99 3,847,149.39 0.00 I A 25%Due 9130/2021 Purchase 12/22/2016 912828XE5 5,000,000.00 US Treasury Note 99.328 1.70% 4,966,423.00 4,532.97 4,970,955.97 0.00 1.5%Due M1/2020 Purchase 12/23/2016 02665JNR7 900,000.00 American Honda Corp Discount CP 99.933 0.74% 899,397.75 0.00 899,397.75 0.00 0.73%Due 1/25/2017 Purchase 12/23/2016 313385BC9 12,000,000.110 FHLB Discount Note 99.953 0.49% 11,994,400.00 0.00 11,994,400.00 0.00 0.48%Due 1/27/2017 Purchase 12/23/2016 313385DL7 6,000,000.00 FHLB Discount Note 99.862 0.55% 5,991,734.16 0.00 5,991,734.16 0.00 0.55%Due 3/24/2017 Purchase 12/23/2016 313589BXO 1,920,000.00 FNMA Discount Note 99.927 0.49% 1,918,606.08 0.00 1,918,606.08 0.00 0.48%Due 211512017 Purchase 12/23/2016 69372ANT5 2,000,000.00 Paccar Financial Discount CP 99.932 0.71 % 1,998,638.88 0.00 1,998,638.88 0.00 0.7%Due 1/27/2017 Purchase 12/23/201674005HMW9 2,000,000.00 Pal Discount CP 99.987 0.70% 1,999,731.66 0.00 1,999,731.66 0.00 0.69%Due 12I30/2016 Purchase 12/23/2016 89233GRL2 1,000,000.00 Toyota Mawr Credit Discount CP 99.669 1.03% 996,689.44 0.00 996,689.44 0.00 1.01%Due 4/20/2017 Purchase 12/23/2016 9127961,75 15,000,000.00 US Treasury Bill 99.813 0.58% 14,971,999.58 0.00 14,971,999.58 0.00 0.57%Due 4/20/2017 Purchase 12/23/2016 912828SC5 10,000,000.00 US Treasury Note 100.051 0.39% 10,005,111.63 34,476.90 10,039,588.53 0.00 0.875%Due 1131=17 Purchase 12/23/2016 912828SC5 6,000,000.00 US Treasury Note 100.051 0.39% 6,003,066.98 20,686.14 6,023,753.12 0.00 0.875%Due 1131/2017 Purchase 12/27/2016 261908107 3,188.25 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 3,188.25 0.00 3,188.25 0.00 Chandler Asset Management-CONFIDENTIAL Execution Time:1/6Y 0178:17:07 AM Orange County Sanitation District Consolidated Transaction Ledger Account 410283 11/30/16 Thru 12/31/16 Thansaction Settlement Acq/Disp Interest Type Date CUSIP Quantity Security Description Price Yield Amount PurlSold Total Amount Gain/Loss ACQUISITIONS Purchase 12/27/2016 261908107 181.21 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 181.21 0.00 181.21 0.00 Purchase 12/27/2016 261908107 294.34 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 294.34 0.00 294.34 0.00 Purchase 12/27/2016 261908107 8,410.76 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 8,410.76 0.00 8,410.76 0.00 Purchase 12/27/2016 261908107 1,676.92 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,676.92 0.00 1,676.92 0.00 Purchase 12/27/2016 261908107 528.65 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 528.65 0.00 528.65 0.00 Purchase 12/27/2016 261908107 19,118.34 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 19,118.34 0.00 19,118.34 0.00 Purchase 12/27/2016 261908107 7,394.94 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 7,394.94 0.00 7,394.94 0.00 Purchase 12/27/2016 261908107 69.98 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 69.98 0.00 69.98 0.00 Purchase 12/27/2016 261908107 5,385.81 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 5,385.81 0.00 5,385.81 0.00 Purchase 12/27/2016 261908107 959.28 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 959.28 0.00 959.28 0.00 Purchase 12/27/2016 261908107 884.32 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 884.32 0.00 884.32 0.00 Purchase 12/27/2016 261908107 12,153.24 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 12,153.24 0.00 12,153.24 0.00 Purchase 12/27/2016 261908107 624.59 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 624.59 0.00 624.59 0.00 Purchase 12/27/2016 313397BG5 5,000,000.00 FHLMC Discount Nate 99.954 0.48% 4,997,715.30 0.00 4,997,715.30 0.00 0.47%Due 1/31/2017 Purchase 12Q8/2016 261908107 4,876.62 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 4,876.62 0.00 4,876.62 0.00 Purchase 12/28/2016 313397BG5 12,000,000.00 FHLMC Discount Note 99.956 0.48% 11,994,673.33 0.00 11,994,673.33 0.00 0.47%Due 1/31/2017 Purchase 12/28Q016 31398ADM1 2,500,000.00 FNMA Note 102.137 0.67% 2,553,425.00 5,972.22 2,559,397.22 0.00 5.375%Due 6112/2017 Purchase 12/29/2016 261908107 6,293.36 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 6,293.36 0.00 6,293.36 0.00 Purchase 12/29/2016 9128281,189 4,500,000.00 US Treasury Note 97.871 1.92% 4,404,214.29 25,388.93 4,429,603.22 0.00 1.375%Due 1131/2021 Purchase 12/29/2016 912828SN1 5,000,000.00 US Treasury Note 100.328 1.35% 5,016,423.00 18,543.96 5,034,966.96 0.00 1.5%Due 3/31/2019 Purchase 12/29/2016 912828U65 7,000,000.00 US Treasury Note 98.578 2.06% 6,900,492.20 9,759.62 6,910,251.82 0.00 1.75%Due 11130/2021 Purchase 12/30/2016 261908107 2,000,000.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 2,000,000.00 0.00 2,000,000.00 0.00 Purchase 12/31/2016 261908107 16,250.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.39% 16,250.00 0.00 16,250.00 0.00 Subtotal 125,380,587.25 124,773,831.40 147,150.32 124,920,981.72 0.00 Secunty 12/01/2016 261908107 5,600,000.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 5,600,000.00 0.00 5,600,000.00 0.00 Contnbution Cbands,Asset Management-CONFIDENTIAL E. Wion Time:1/6Q0178:17:07 AM C." Orange County Sanitation District Consolidated Transaction Ledger Account#10283 11/30/16 Thru 12/31/16 Transaction Settlement Acq/Disp Interest Type Date CUSIP Quantity Security Description Price Yield Amount PurlSold Total Amount GainfLoss ACQUISITIONS Security 12/05/2016 261908107 5,600,000.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 5,600,000.00 0.00 5,600,000.00 0.00 Contribution Seourily 12/21/2016 261908107 28,300,000.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 28,300,000.00 0.00 28,300,000.00 0.00 Conboution Security 12/22/2016 261908107 80,000,000ol) Dreyfus Trsy/Agcy Cash Management 521 1.000 80,000,000.00 0.00 80,000,000.00 0.00 Contribution Subtotal 119,500,000.00 119,500,000.00 0.00 119,500,000.00 0.00 TOTAL ACQUISITIONS 244,880,587.25 244,273,831.40 147,150.32 244,420,981.72 0.00 DISPOSITIONS Sale 12/06/2016 261908107 1,249,349.22 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,249,349.22 0.00 1,249,349.22 D.00 Sale 12/14/2016 261908107 5,822,808.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 5,822,808.00 0.00 5,822,808.00 0.00 Sale 12/19/2016 261908107 1,999,164.44 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,999,169.44 0.00 1,999,169.44 0.00 Sale 12/20/2016 261908107 1,158,376.71 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 1,158,376.71 0.00 1,158,376.71 0.00 Sale 12/21Q016 261908107 999,444.44 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 999,444.44 0.00 999,444.44 0.00 Sale 12/22Q016 261908107 8,818,105.36 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.23% 8,818,105.36 0.00 8,818,105.36 0.00 Sale 12/22Q016 261908107 6,251,999.25 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.23% 6,251,999.25 0.00 6,251,999.25 0.00 Sale 12/23Q016 261908107 10,039,588.53 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 10,039,588.53 0.00 10,039,588.53 0.00 Sale 12/23Q016 261908107 46,794,950.67 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 46,794,950.67 0.00 46,794,950.67 0.00 Sale 12/27/2016 261908107 4,997,715.30 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 4,997,715.30 0.00 4,997,715.30 0.00 Sale 12/28/2016 261908107 2,559,397.22 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 2,559,397.22 0.00 2,559,397.22 0.00 Sale 12/28/2016 261908107 11,994,673.33 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.21 % 11,994,673.33 0.00 11,994,673.33 0.00 Sale 12/29/2016 261908107 16,374,822.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.22% 16,374,822.00 0.00 16,374,822.00 0.00 Subtotal 119,060,394.47 119,060,394.47 0.00 119,060,394.47 0.00 Call 12/19/2016 06406HCA5 1,000,000.00 Bank of New York Callable Note Cont. 100.000 2.40% 1,000,000.00 10,133.33 1,010,133.33 0.00 12/18/16 2.4%Due 1/17/2017 Subtotal 1,000,000.00 1,000,000.00 10,133.33 1,010,133.33 0.00 Paydown 12/06/2016 62888UAA8 10,686.26 NCUA Guaranteed Note CM02010-R2Due 100.000 10,686.26 327.92 11,014.18 0.00 11/6/2017 Paydown 12/15/2016 161571HHO ODD Chase CHAIT Pool#2016-A7 100.000 0.00 3,657.00 3,657.00 0.00 1.06%Due 9/1612019 Chandler Asset Management-CONFIDENTIAL E. Wion T. 1/6/20178:17:07 AM C." Orange County Sanitation District Consolidated Transaction Ledger Account#10283 11/30/16 Thru 12/31/16 Transaction Settlement Acq/Disp Interest Type Date CUSIP Quantity Security Description Price Yield Amount PurlSold Total Amount GainfLoss DISPOSITIONS Paydown 12/15/2016 3133TCE95 1,586.50 FHLMC FSPC E3A 100.000 1,586.50 115.52 1,702.02 0.00 2 892%Due 8/15/2032 Paydown 12/15/2016 31348SWZ3 18.80 FHLMC FH 786064 100.000 18.80 5.06 23.86 0.00 2.262%Due 111/2028 Paydown 12/15/2016 438140AC2 0.00 Honda Auto Receivables 2016.2 A3 100.000 0.00 2,096.58 2,096.58 0.00 1.39%Due 4/15/2020 Paydown 12/15/2016 477877AD6 215,162.69 John Deere Owner Trust 2014-13 A3 100.000 215,162.69 2,196.31 217,359.00 0.00 1.07%Due 1111 5/2 01 8 Paydown 12/15/2016 4778810AC4 0.00 John Deere Owner Trusl2016-AA3 100.000 0.00 2,742.67 2,742.67 0.00 1.36%Due 4/15/2020 Paydown 12/15/2016 47788NAM 0.00 John Deere Owner Trus12016-B A2 100.000 0.00 2,706.83 2,706.83 0.00 1.09%Due 2115/2019 Paydown 12/15/2016 65478WAB1 0.00 Nissan Auto Receivables Owner 2016-C 100.000 0.00 1,859.13 1,859.13 0.00 A2A 1.07%Due 5/15/2019 Paydown 12/15/2016 89231 MAC9 194,360.33 Toyota Auto Receivables Owner 2014-A 100.000 194,360.33 364.84 194,725.17 0.00 0.67%Due 12/15/2017 Paydown 12/15/2016 89231TAB6 167,782.00 Toyota Auto Receivables Owner 2015-C 100.000 167,782.00 555.27 168,337.27 0.00 0.92%Due 2/15/201 B Paydown 12/15/2016 89236WAC2 244,929.80 Toyota Auto Receivables Owner 2015-A 100.000 244,929.80 2,919.66 247,849.46 0.00 1.12%Due 2/15/2019 Paydown 12/16/2016 3837H4NX9 1.111.18 GNMA P.I#2000-9 100.000 1,111.18 28.76 1,139.94 0.00 9.5%Due 2/16M30 Paydown 12/19/2016 43814GAC4 91,844S1 Honda Auto Receivables 20142 A3 100.000 91,844.61 403.86 92,248.47 0.00 0.77%Due 3/19/201 B Paydown 12/19/2016 43814NAB1 246,776.57 Honda Auto Receivables 2016-1 A2 100.000 246,776.57 1,907.99 248,6B4.56 0.00 1.01%Due 6/18/2018 Paydown 12/20/2016 36225CAZ9 212.30 GNMA P.I#G280023 100.000 212.30 42.86 255.16 0.00 2.816%Due 12/20/2026 Paydown 12/20/2016 36225CC20 230.17 GNMA P.I#G280068 100.000 230.17 53.03 283.20 0.00 2.817%Due 6/20/2027 Paydown 12/20/2016 36225CN28 444.74 GNMA Pool#G280408 100.000 444.74 148.40 593.14 0.00 2.691%Due 5/20/2030 Paydown 12/20/2016 36225CNM4 182.09 GNMA P.I#G280395 100.000 182.09 19.04 201.13 0.00 2.877%Due 4/20/2030 Paydown 12/20/2016 36225DCB8 1.557.74 GNMA P.I#G280965 100.000 1,557.74 157.20 1,714.94 0.00 2.31%Due 7/20/2034 Paydown 12/21/2016 43813JAC9 226,865.50 Honda Auto Receivables 20141 A3 100.000 226,865.50 278.73 227,144.23 0.00 0.67%Due 11121/2 01 7 Chandler Asset Management-CONFIDENTIAL E. Wion Time 116/20178:17:07 AM C." Orange County Sanitation District Consolidated Transaction Ledger Account#10283 11/30/16 Thru 12/31/16 Transaction Settlement Acqi Interest Type Date CUSIP Quantity Security Description Price Yield Amount PurlSold Total Amount Gain/Loss DISPOSITIONS Paydown 12/27/2016 03215PFN4 0.00 AMRESCO Residential Securities 1999-1 100.000 0.00 181.21 181.21 0.00 ADue 6/25/2029 Paydown 12/27/2016 31371NUC7 198.27 FNMA FN 257179 100.000 198.27 96.07 294.34 0.00 4.5%Due 4/1/2028 Paydown 12/27/2016 31376KT22 7,661.00 FNMA FN 357969 100.000 7,661.00 749.76 8,410.76 0.00 5%Due 9/1/2035 Paydown 12/27/2016 31381 PDA3 655.52 FNMA FN 466397 100.000 655.52 1,021.40 1,676.92 0.00 3.4%Due 1 t/l/2020 Paydown 1227/2016 3138EGi 455.84 FNMA FN AL0869 100.000 455.84 72.81 528.65 0.00 4.5%Due 6/1/2029 Paydown 12/27/2016 313MJY35 13,720.82 FHLMC FSPC T-582A 100.000 13,720.82 5,397.52 19,118.34 0.00 6.5%Due 9/25/2043 Paydown 12/27/2016 31397QRED 7,030.89 FNMA FNR 2011-3 FA 100.000 7,030.89 364.05 7,394.94 0.00 OS32%Due 21252041 Paydown 1227/2016 31398VJ98 0.00 FHLMC FHMS K006 A2 100.000 0.00 3,188.25 3,188.25 0.00 4.251%Due 1/252020 Paydown 12/272016 31403GXF4 48.14 FNMA POD1#FN 748678 100.000 48.14 21.84 69.98 0.00 5%Due 10/1/2033 Paydown 12/272016 31406PQYB 4,169.99 FNMA PODI#FN 815971 100.000 4,169.99 1,215.82 5,385.81 0.00 5%Due 3/l2035 Paydown 1227/2016 31406XW75 593.76 FNMA Poo1#FN 823358 100.000 593.76 365.52 959.28 0.00 2.875%Due 211/2035 Paydown 12/272016 31407BXH7 752.08 FNMA PODI#FN 826080 100.000 752.08 132.24 884.32 0.00 5%Due 7/l2035 Paydown 12/272016 31410F4V4 10,706.84 FNMA PODI#FN 888336 100.000 10,706.84 1,446.40 12,153.24 0.00 5%Due 7/l2036 Paydown 1227/2016 31417YAY3 512.51 FNMA Poo1#FN MA0022 100.000 512.51 112.08 624.59 0.00 4.5%Due 4/l/2029 Paydown 12/282016 31403DJZ3 4,144.86 FNMA Pool#745580 100.000 4,144.86 731.76 4,876.62 0.00 5%Due 6/12036 Paydown 12/292016 31396X3Q5 6,277.35 FNMA FNR 2007-114 A6Due 10/27/2037 100.000 6,277.35 16.01 6,293.36 0.00 Subtotal 1,460,679.15 1,460,679.15 37,699.40 1,498,378.55 0.00 Maturity 12/19/2016 21687AMK6 1,000,000.00 Rabobank Nederland NV NY Discount CP 99.575 1,000,000.00 0.00 1,000,000.00 0.00 0.84%Due 12/19/2016 Maturity 12/30/2016 74005HMW9 2,000,000.00 Praxalr Discount CP 99.987 2,000,000.00 0.00 2,000,000.00 0.00 0.69%Due 1 213 0/2 01 6 Subtotal 3,000,000.00 3,000,000.00 0.00 3,000,000.00 0.00 Chandler Asset Management-CONFIDENTIAL Execution Time:116120178:17:07 AM Orange County Sanitation District Consolidated Transaction Ledger Account#10263 11/30/16 Third 12/31/16 Transaction Settlement Acq/Disp Interest Type Date CUSIP Quantity Security Description Price Yield Amount PurlSold Total Amount GainfLoss DISPOSITIONS Security 12/01/2016 261908107 5,600,000.00 Dreyfus Trsy/Agcy Cash Management 521 1.000 5,600,000.00 0.00 5,600,000.00 0.00 Withdrawal Security 12/30/2016 261908107 0.04 Dreyfus Trsy/Agcy Cash Management 521 1.000 0.04 0.00 0.04 000 Withdrawal Subtotal 5,600,000.04 5,600,000.04 0.00 5,600,000.04 0.00 TOTAL DISPOSITIONS 130,121,073.66 130,121,073.66 47,832.73 130,168,906.39 0.00 OTHER TRANSACTIONS Interest 12/01/2016 060505DP6 3,800,000.00 Bank of America Corp Note 0.000 109,250.00 0.00 109,250.00 0.00 5.75%Due 1211/2017 Interest 12/012016 73358WAG9 2,440,000.00 Purl Authority of NY&NJ TE-REV 0.000 64,769.80 0.00 64,769.80 0.00 5.309%Due 12/12019 Interest 12/05/2016 166764AA8 2,000,000.00 Chevron Coup Callable Note Cont 11/5117 0.000 11,040.00 0.00 11,040.00 0.00 1.104%Due 12/52017 Interest 12/122016 313383HU8 5,000,000.00 FHLB Note 0.000 43,750.00 0.00 43,750.00 0.00 1.75%Due W1212020 Interest 12/142016 3135GOG72 5,000,000.00 FNMA Note 0.000 28,125.00 0.00 28,125.00 0.00 I A 25%Due 12/142018 Interest 12/15/2016 458140AL4 2,000,000.00 Intel Corp Note 0.000 13,500.00 0.00 13,500.00 0.00 1.35%Due 1 211 5 2 01 7 Interest 12/152016 459058EJ8 5,000,000.00 Ind.Bank Recon&Development Note 0.000 25,000.00 0.00 25,000.00 0.00 1%Due 6/1 512 01 8 Interest 12/152016 94988J210 500,000.00 Wells Fargo Bank Callable Note Obly 0.000 1,403.27 0.00 1,403.27 0.00 6/15/2016 1.253%Due 6/15/2017 Interest 12/22/2016 3135GOD75 5,000,000.00 FNMA Note 0.000 37,500.00 0.00 37,500.00 ODD 1.5%Due 6/222020 Interest 12/312016 912828WS5 2,000,000.00 US Treasury Note 0.000 16,250.00 0.00 16,250.00 0.00 1.625%Due 6/30/2019 Subtotal 32,740,000.00 350,588.07 0.00 350,588.07 0.00 Divitlentl 12/02/2016 261908107 7.823,22T28 Dreyfus Trsy/Agcy Cash Management 521 0.000 653.25 0.00 653.25 0.00 Dividend 12/02/2016 261908107 3,425,201.69 Dreyfus Trsy/Agcy Cash Management 521 0.000 834.05 0.00 834.05 0.00 Subtotal 11,2A8,428.97 1,487.30 0.00 1,487.30 0.00 TOTAL OTHER TRANSACTIONS 43,988,428.97 352,075.37 0.00 352,075.37 0.00 Chandler Asset Management-CONFIDENTIAL E. Wion Time 116120178:17:07 AM STEERING COMMITTEE Meeting Dare TOBd.of Dir. 0 2SI17 01/zs/17 AGENDA REPORT ItemNumber Item Number z B Orange County Sanitation District FROM: James D. Herberg, General Manager Originator: Robert P. Ghirelli, Assistant General Manager SUBJECT: OUTREACH FOR GROUNDWATER REPLENISHMENT SYSTEM (GWRS) BOTTLED WATER AND THE 10TH ANNIVERSARY OF THE GWRS GENERAL MANAGER'S RECOMMENDATION Approve $63,000 as the Orange County Sanitation District's share of costs related to GWRS bottled water outreach efforts. BACKGROUND The GWRS is an historic water infrastructure project that has made a world-wide impact on the public acceptance of water reuse for drinking water purposes. With the passage of Assembly Bill (AB) 2022 in 2016, allowing the bottling of GWRS water, there is now an opportunity to promote water recycling to policy makers beyond Orange County in conjunction with the 10m anniversary of the project. RELEVANT STANDARDS • Build brand, trust, and support with policy makers and community leaders • Use all practical and effective means for recovering wastewater for reuse • Maintain collaborative and cooperative relationships with regulators/Stakeholders PROBLEM The GWRS has been online for nine years. Media coverage has been positive and has included prominent media outlets over the course of the last nine years and even increased in 2015 and early to mid-2016 due to the drought; however, media inquiries are slowly declining as other topics dominate the media's interest. The 1011 anniversary of the GWRS will occur in January 2018 and is deserving of commemoration. Regulations for Direct Potable Reuse (DPR) are currently being drafted and reviewed by the state of California. Public acceptance of DPR will be critical to California's water future. Page 1 of 3 PROPOSED SOLUTION Implement an outreach plan that reinforces the Orange County Water District (OCWD) and Orange County Sanitation District's(Sanitation District)leadership role in water reuse and maintains relevance in the media. Implement an outreach plan that utilizes a balance of traditional and nontraditional media tactics to draw more positive impressions on social media and in national media outlets including GWRS "taste tests" throughout California and nationwide. Procure the services of a consultant/firm to assist in executing an outreach plan that has far reaching impacts. TIMING CONCERNS The first bottling of GWRS water is tentatively set to occur in January 2017 and be available for distribution in February 2017. Other agencies qualify under AB 2022 to bottle advanced purified water in 2017. OCWD and the Sanitation District may have a small window of opportunity to publicize the GWRS bottled water before other agencies. RAMIFICATIONS OF NOT TAKING ACTION Communities that do not have existing groundwater basins or reservoirs to store reused water are developing plans for DPR. The OCWD and Sanitation District decision to bottle GWRS water can have a tremendous impact on educating the public, media, and policy makers, and can serve as an important communications tool to gamer support for DPR projects and additional Indirect Potable Reuse projects. The marketing of bottled GWRS water and commemorating the 101h anniversary of GWRS will help support industry efforts to get support for DPR. It will also keep the GWRS, OCWD, and the Sanitation District at the forefront of positive media attention and further solidify the agencies' global leadership role in the water industry for which agencies, media, and policy makers will seek their expertise. PRIOR COMMITTEE/BOARD ACTIONS December 7, 2016 - Authorize $15,000 in the Public Affairs Department budget for the initial testing and bottling of GWRS water, with the cost of the bottling and testing to be shared between OCWD and the Sanitation District. Authorize the General Managers of OCWD and OCSD to approve the label for the first-run of GWRS water bottles. January 9, 2017-OCWD/Sanitation District staff presented a summary of activities to the GWRS Steering Committee for discussion and consideration. The Committee directed staff to go back to their respective Boards for further review and recommendation. ADDITIONAL INFORMATION The $126,000, which will be split between OCWD and the Sanitation District will include the public relations consultant, staffing of events, overall event management, securing Page 2 of 3 venues for events and displays, developing and creating a pop-up display, and marketing and media relations, including creation of media kits and media lists. Below are the costs related to the GW RS bottled water outreach events. Overall Base Level Budget Budget Item Projected Cost Public Relations Consultant $56,500 $4,350/month Statewide Events $40,000 Roadshow Display $4,500 Sponsorships of Events $25,000 Total $126,000 CEQA N/A FINANCIAL CONSIDERATIONS This request complies with authority levels of the Sanitation District's Purchasing Ordinance. This item will be funded in the approved FY 2016-17 operating budget. (Line item: Other, Section 6, Page 12.) ATTACHMENT The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the complete agenda package: N/A Page 3 of 3 STEERING COMMITTEE Meeting Date TOBA.of Dir. 01/25/17 oils/ 7 AGENDA REPORT Item Number Item Number 3 9 Orange County Sanitation District FROM: James D. Herberg, General Manager SUBJECT: GENERAL MANAGER'S FY 2016-2017 WORK PLAN MID-YEAR UPDATE GENERAL MANAGER'S RECOMMENDATION Receive and file the General Manager's FY 2016-2017 Work Plan Mid-Year Update. BACKGROUND Each year, the General Manager prepares a work plan of activities to be accomplished during the fiscal year. Attached is the mid-year update for the General Manager's FY 2016-2017 work plan. RELEVANT STANDARDS • Maintain a culture of improving efficiency • Plan for and execute succession, minimizing vacant position times • Highly qualified, well trained, motivated, and diverse workforce • Biosolids, Odor, and Energy Master Plans • Use practical and effective means for recovering energy, wastewater for reuse PRIOR COMMITTEE/BOARD ACTIONS August 2016 - Proposed General Manager's FY 2016-2017 Work Plan presented to the Steering Committee for review. September 2016 - Board of Directors approved the General Manager's FY 2016-2017 Work Plan. ADDITIONAL INFORMATION The General Manager's Work Plan includes goals for the fiscal year. At mid-year, six out of 15 work plan items were completed and nine items are on track to be completed by, or prior to, the end of the fiscal year and the deadline of the overall Work Plan. FINANCIAL CONSIDERATIONS All items included in the General Manager's Work Plan are budgeted in the FY 2016-2017 Budget. Page 1 of 2 ATTACHMENT The following attachment(s) are included in hard copy and may also be viewed on-line at the OCSD website(www.ocsd.coml with the complete agenda package: • General Manager's FY 2016-2017 Work Plan Mid-Year Update Page 2 of 2 ORANGE COUNTY SANITATION DISTRICT Memorandum January 16, 2017 TO: Chairman and Members of the Board of Directors FROM: James D. Herberg, General Manager SUBJECT: Fiscal Year 2016-2017 General Manager's Work Plan I am pleased to present the mid-year update for my Fiscal Year 2016-17 work plan. The work plan includes fifteen goals organized under five focus areas including safety and security, succession planning, resource recovery, reliability and operational resiliency. The work plan was reviewed with the Steering Committee in August 2016. 1. Safety and Security • Cyber Security—Address the top ten longer-term cyber security items/projects. Update: Various measures to address the Cyber Security issues are underway. A Cyber Security awareness program was launched offering quarterly training for all OCSD staff. An additional cyber security analyst has been hired to join the team. Staff is working with Microsoft to maximize our ability to respond to security incidents and improve the program's security incident management capabilities.An advanced threat protection tool was deployed for our servers,workstations, and laptops to improve endpoint protection from threats.The Network Architecture Verification and Validation(NAVY)assessment from the Department of Homeland Security was completed and the Post Assessment-Report Feedback meeting with the Industrial Control Systems Cyber Emergency Response Team (ICS-CERT) representative is being scheduled. • Safety Engineering Solutions and Physical Site Security — Retain a contractor to begin addressing the 75 high priority items identified in the Safety Study. Implement outstanding high priority physical site security improvements and conduct training for all employees. Update:A contractor was retained to begin addressing the 75 high priority items identified in the Safety Study which are scheduled for completion by April 2017. A new contract was entered into with a Security firm and the transitions to the improved site security elements will begin taking place this month. Additional safety recommendations will be reviewed by our in-house experts in February 2017. • Voluntary Protection Plan (VPP)Certification—Implement the recommendations from the feasibility analysis report for obtaining VPP certification from California OSHA. Update: A Safety Culture Assessment is being led by Operations and Maintenance; Risk Management has increased field time; and deficiencies identified in the analysis report have been addressed. 1 2. Succession Plannina • Labor Negotiations—Complete negotiations with all represented bargaining units and develop a performance based pay structure for unrepresented employees. Update: Negotiations with all six bargaining units are concluded and the three (3) year agreements (MOUs) were ratified by the Board of Directors. The performance based pay structure for EMT and Managers has been implemented. • Employee Engagement — Conduct follow-up actions to address issues identified during the employee engagement survey and the 2015 EMT/manager leadership training. Update:All departments have prepared after action plans and submitted them to the General Manager's Office. Departments will be spending the remainder of the Fiscal Year completing the items on their action plans. • Workforce Planningand Development—Address key vulnerabilities identified in theworkforce vulnerability and talent readiness assessments conducted during 2015-16 by implementing focused job shadowing, job assignments, training and mentoring. Implement streamlined policies and procedures to more quickly fill vacancies and ensure adequate staffing levels. Update:The workforce vulnerability assessment was completed by all departments. HR met with department heads and high priorities opportunities were identified. Departments will implement plans to address their needs and gaps.Additionally,a streamlined HR recruitment process was implemented resulting in approximately 50 positions being filled in the first six months of the fiscal year.Another 50 positions are currently in active recruitment. 3. Resource Recovery • Water Recycling — Execute a new agreement with Orange County Water District (OCWD) for the ultimate expansion of the Groundwater Replenishment System (GWRS). Work with OCWD to secure grant funding and complete preliminary engineering and environmental work on the expanded facilities to recycle effluent from OCSD's Treatment Plant No. 2. Update:A new agreement with OCWD for GWRS was executed. OCSD will continue to work with OCWD to provide ongoing support as needed. • Research — Present findings and recommendations on Super Critical Water Oxidation to the Board of Directors. Update:Findings on Super Critical Water Oxidation were presented to the Board of Directors. Staff will continue to provide ongoing support as needed. • Monitoring Program—Evaluate the nature and frequency of all of OCSD's current environmental monitoring for the protection of OCSD's collection system and treatment plants; water recycling; ocean discharge; and biosolids recycling. Prepare a plan based on the future monitoring needs of OCSD. Update: A project manager was selected and an initial comprehensive list of monitoring activities was developed. Stakeholders reviewed the list and statistical and compliance analyses are underway.The plan is under development.Stakeholders met to discuss current and proposed monitoring to prepare the future monitoring needs of OCSD. 2 4. Reliability • Planned Maintenance — Complete a gap analysis and implement measures to fully deploy planned maintenance using Maximo and process improvements to improve reliability. Update: A Gap Analysis of the Maintenance/Asset Management program was performed with the assistance of an outside consultant and a report with recommendations was developed. The report pointed out opportunities to strengthen our program and the implementation of the Enterprise Asset Management tool (Maximo). Most of the recommendations have been completed including forming anew Maintenance Reliability& Planning Division to focus on asset management efforts, the establishment of Asset Management and Maximo Change Management Committees, and the formation of several working teams to improve communication across the maintenance division. • Civil Assets Maintenance—Implement the operational housekeeping program, and develop a multi-year program for condition assessment and maintenance of civil assets. Update: Critical assets at both treatment plants have been identified and added to Maximo and will be part of the Planned Maintenance (PM's) schedule. Regular removal of grit/solids at trouble spots is taking place, job plans are being developed and frequencies being established to implement PM's for these trouble spots. All civil assets have been identified, hierarchy relationships have been established and job plans have been developed. Atwo-year plan and schedule is being developed that will integrate civil and mechanical maintenance work and capital improvement projects. Once this plan/schedule is complete the PM's will be activated. • Operational Resiliency— Present the results of the business continuity plan to the Board of Directors. Identify the most critical functions to keep OCSD operating in the event of a major event. Update: This is a joint effort between the IT and HR departments. IT has deployed business continuity equipment to the backup data center in Nevada and successfully tested the systems. Routine testing of major applications critical to OCSD's operations (JDE,SharePoint, Maximo,etc.) is being planned. On the HR side,a scope of work will be developed to retain a consultant to work with staff in identifying other additional critical functions to keep OCSD operating in the event of a major event. • Seismic—Conduct an updated study of the seismic safety needs of OCSD's Plant Facilities. Update: Staff are on target to award the seismic study contract by June 30, 2017 to identifythe safety needs of OCSD's Plant Facilities. S. Operational Optimization • Rates— Conduct planning studies including the Odor Control, Biosolids, and Facilities Master Plans to develop updated 20-year cost projections.The outcomes of these studies will be used next fiscal year to complete a rate study to determine the proper allocation of costs among user types and a recommended future rate structure. 3 Update: The planning studies are underway and on target to be completed by June 30, 2017,in time to supply input to the upcoming rate study. • OCSD Headquarters Building—Study site location options and make final site selection to begin preparing environmental documentation to comply with CEOA. Update: Site selections and property purchases are going forward to begin the CEQA work. Three potential sites to be studied: Southwest corner of Plant No. 1, current administration location area, and new property across Ellis Ave. 4 BOARD OF DIRECTORS Meeting Date TOBE.Or Dir. -- Ol/zs/17 AGENDA REPORT Item Item 10 Orange County Sanitation District FROM: James D. Herberg, General Manager Originator: Rob Thompson, Director of Engineering SUBJECT: REIMBURSEMENT AGREEMENT WITH ORANGE COUNTY FLOOD CONTROL DISTRICT FOR FULLERTON CREEK CHANNEL PROJECT GENERAL MANAGER'S RECOMMENDATION Approve a Reimbursement Agreement with the Orange County Flood Control District for the modifications to the Magnolia Relief Sewer under the Fullerton Creek Channel, in the City of Buena Park. BACKGROUND The Orange County Sanitation District (Sanitation District) owns and maintains two 12-inch ductile iron pipes inside a 48-inch steel casing under the Orange County Flood Control District's (OCFCD) Fullerton Creek Channel. OCFCD has paramount rights by virtue of a dedication to the County in 1918. RELEVANT STANDARDS • Maintain collaborative and cooperative relationships with neighboring agencies • Operate and maintain facilities to minimize impacts on surrounding communities, including odor, noise, and lighting PROBLEM An OCFCD-led flood control project will line the north half of the Fullerton Creek Channel with concrete. The proposed concrete channel bottom will conflict with the existing 48-inch casing pipe requiring the removal of portions of the casing pipe and concrete encasement. The Sanitation District is required to accommodate and pay for expenses due to OCFCD rights. PROPOSED SOLUTION Modify Magnolia Relief Sewer 48-inch encasement while protecting two 12-inch ductile iron pipes. Enter into a Reimbursement Agreement with OCFCD, accepting the following terms to the Magnolia Relief Sewer modifications: 1. The Sanitation District to prepare plans and specifications for modifications per Sanitation District's plans and specifications. Page 1 of 2 2. OCFCD to include within its construction contract the modifications per Sanitation District's plans and specifications. 3. OCFCD to be responsible for the administration and award of a contract to OCFCD's selected contractor. 4. OCFCD shall issue change orders after Sanitation District review and approval. 5. The Sanitation District will inspect and accept the construction work. 6. The Sanitation District shall reimburse OCFCD up to $106,893, including administration fee. TIMING CONCERNS The U.S. Army Corps of Engineers established a deadline of March 18, 2017 for OCFCD to commence the channel improvement project. RAMIFICATIONS OF NOT TAKING ACTION Without the Reimbursement Agreement, the modification or relocation to the Sanitation District facilities would need to be administered by the Sanitation District and could not be completed by the said OCFCD deadline. PRIOR COMMITTEE/BOARD ACTIONS N/A ADDITIONAL INFORMATION In partnership with the OCFCD in 1999, the Sanitation District similarly funded the modifications to the Magnolia Relief Sewer in Western Avenue through an OCFCD flood control improvement project in the southern portion of the channel. CEQA OCFCD filed a Mitigated Negative Declaration and Addendum and a Notice of Determination in 2014 for the channel improvement project and associated utility impacts. FINANCIAL CONSIDERATIONS This request complies with authority levels of the Sanitation District's Purchasing Ordinance. This item has been budgeted. (FY2016-17 and 2017-18, Section 8, Page 39). ATTACHMENT The following attachment(s)are included in hard copy and may also be viewed on-line at the OCSD website (www.ocsd.coml with the complete agenda package: Reimbursement Agreement RD:sa:gc Page 2 of 2 Agreement MA-080-17010249 THIS AGREEMENT, for the purpose of identification hereby is numbered MA-080- 17010249 and entered into this day of 2017 ("Effective Date") is BY AND BETWEEN ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, hereinafter referred to as "OCFCD" AND ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to as "SANITATION DISTRICT," which are sometimes individually referred to as"PARTY,"and collectively referred to as "PARTIES." RECITALS WHEREAS, OCFCD is preparing plans for proposed improvements to the existing Fullerton Creek Channel (OCFCD Facility #A03) ("PROJECT") within the unincorporated territory of the County of Orange and within the City of Buena Park from downstream of Western Avenue to upstream of Beach Boulevard,which PROJECT consists of: (1)removal of existing false invert, and (2)replacement of the existing north side L-wall and invert to match the south side L-wall. WHEREAS, SANITATION DISTRICT owns, operates and maintains two 12" ductile iron pipes encased in a 48"outside diameter steel encasement("FACILITY"),which is in conflict with the proposed PROJECT.The conflict may be averted by the partial removal of approximately 20 linear feet of the crown of the 48"outside diameter steel casing and concrete slurry encasement to clear the PROJECT ("MODIFICATION"). WHEREAS,OCFCD acquired its rights in land for the Fullerton Creek Channel by virtue of the Stems Ranch Company dedication to the County in 1918 per Official Records in the Office of the Orange County Recorder,which rights are paramount to SANITATION DISTRICT's rights in land for the FACILITY. WHEREAS,as a consequence of OCFCD's paramount rights, SANITATION DISTRICT is required to accommodate the PROJECT by undertaking the MODIFICATION at SANITATION DISTRICT's expense. WHEREAS,in December 2016,OCFCD performed a closed caption television inspection of the 12" ductile iron pipes and determined that the MODIFICATION would avoid the conflict with the PROJECT. WHEREAS,OCFCD improved the south side L-wall of the same Fullerton Creek Channel segment in 1999 and successfully coordinated efforts to have OCFCD's contractor modify portions of the 48"encasement while protecting SANITATION DISTRICT's two encased 12"ductile iron 4811-5822 3.3 1 Agreement MA-080-17010249 pipes at SANITATION DISTRICT's expense and OCFCD seeks to perform the same work with respect to the north side as a part of the PROJECT. AGREEMENT NOW THEREFORE,it is mutually understood and agreed by the PARTIES as follows: SECTION I. OCFCD SHALL: 1. Include within its construction contract for PROJECT the MODIFICATION work per SANITATION DISTRICT's standards as shown on plans and specifications prepared by SANITATION DISTRICT and attached as Exhibit 1. 2. Award a construction contract for PROJECT to a contractor appropriately licensed by the State of California for the MODIFICATION("CONTRACTOR"). 3. Be responsible for PROJECT contract award and for the administration and performance of the contract awarded to CONTRACTOR for the MODIFICATION. 4. Incorporate within the contract documents for the PROJECT a requirement for the CONTRACTOR to obtain and keep in full force and effect throughout the life of the PROJECT, for the mutual benefit of SANITATION DISTRICT,OCFCD, County of Orange, and City of Buena Park,a policy or policies of comprehensive,broad form, commercial general liability insurance written on ISO from CG 00 01, or a substitute form providing liability coverage at least as broad in the amount of$3,000,000 limit per occurrence with a$3,000,000 aggregate and automobile insurance against claims and liabilities for activities of the CONTRACTOR in the amount of$1,000,000(combined single limit per occurrence). (A) Said policies shall name SANITATION DISTRICT, OCFCD, County of Orange, and City of Buena Park, and their respective elected and appointed officials, officers, agents and employees as additional insureds using ISO form CG 2010 or CG 2033,or a form at least as broad and shall,additionally, contain language providing for waiver of subrogation. Said policies shall include a primary and non-contributory endorsement using ISO form CG 20 01 04 13, or a form at least as broad evidencing that the policies are primarily and noncontributing with any insurance or self-insurance that may be carried by the parties hereto and that said insurance may not be canceled or materially changed except upon thirty(30)days written notice to OCFCD and SANITATION DISTRICT. Said policies shall include a Products and Completed Operations endorsement using ISO form GC 2027 (ed. 10/01) or a form at least as broad. (B) OCFCD shall also require that workers' compensation benefits are secured by the CONTRACTOR as required by law, and provide an endorsement waiving all rights of subrogation against the Parties hereto with regard to any workers compensation claims for SANITATION DISTRICT. 4811-58M2 3.3 2 Agreement MA-080-17010249 (C) Prior to the issuance of the Notice to Proceed to the CONTRACTOR, OCFCD shall provide SANITATION DISTRICT with policies and endorsements naming SANITATION DISTRICT as an additional insured for the general liability and automobile liability policies described above. (D) In addition, OCFCD shall require its CONTRACTOR to obtain pollution liability insurance written on an claims-made or occurrence basis,that covers losses related to the release or the threatened release of pollutants into the environment arising out of or resulting from the CONTRACTOR's performance of the PROJECT. The minimum limits of Pollution Liability shall be $2 million per occurrence/$2 million policy aggregate. When this coverage is provided under endorsement to the general liability policy,the $1 million per occurrence must be a sub-limit. The pollution liability policy shall also contain an Additional Insured endorsement and a primary and non-contributory endorsement naming the parties hereto. (E) If CONTRACTOR maintains higher limits than any minimums above, SANITATION DISTRICT will be entitled to coverage for the higher limits maintained by CONTRACTOR. 5. Finnish a representative to perform the usual functions of a Resident Engineer for the MODIFICATION and cooperate and consult with the SANITATION DISTRICT REPRESENTATIVE (defined in Section D), and the decision of OCFCD's Resident Engineer on any matters relating to the PROJECT shall be final, so long as the that decision does not materially deviate from plans approved by SANITATION DISTRICT in Section II. 6. Permit SANITATION DISTRICT to access the PROJECT site for purposes of inspection and to ensure that work is performed in accordance with SANITATION DISTRICT- approved plans and specifications. 7. Issue change orders for the MODIFICATION work but only after approval by SANITATION DISTRICT pursuant to section ILS. 8. Not accept the MODIFICATION work from the CONTRACTOR until SANITATION DISTRICT concurs in writing that SANITATION DISTRICT's facilities have been constructed in accordance with SANITATION DISTRICT's approved plans and specifications and any authorized use of contingency funds or contract change orders. 9. Require that any and all labor and materials bonds and performance bonds required to be supplied by the CONTRACTOR for the PROJECT shall include SANITATION DISTRICT as a named obligee on said bonds. SECTION II. SANITATION DISTRICT SHALL: I. Prepare the necessary plans and specifications,in United States Customary Units for the MODIFICATION work to include into OCFCD's plans and specifications for Project. Said plans and specifications were delivered by SANITATION DISTRICT to OCFCD in December 2016 and do not conflict with OCFCD's PROJECT improvements, and we attached as Exhibit 1. 4811-58ZZ-0 33 3 Agreement MA-080-17010249 2. Pay OCFCD the cost of the MODIFICATION not to exceed $97,175.02, which amount is based upon OCFCD's estimated construction cost plus a 30%contingency. In no event will SANITATION DISTRICT pay more than$97,175.02 plus the amount determined in Section IL7(C)under this AGREEMENT, unless change orders approved by the SANITATION DISTRICT Board of Directors increase the cost for MODIFICATION. Upon completion of 66% and 90% of the work of either the MODIFICATION, OCFCD shall meet and confer with SANITATION DISTRICT and the CONTRACTOR to assess the progress of the PROJECT. 3. Pay monthly or quarterly progress payments to OCFCD within 30 days after receipt of an invoice from OCFCD. 4. Appoint a representative ("SANITATION DISTRICT REPRESENTATIVE"), who shall inspect all construction activities relating to the MODIFICATION work. All requests for alteration to the MODIFICATION work by the SANITATION DISTRICT REPRESENTATIVE shall be made in writing to OCFCD's Resident Engineer,who shall follow the approval process described in Section I above and OCFCD's Resident Engineer shall direct the CONTRACTOR to accomplish all such changes. The SANITATION DISTRICT REPRESENTATIVE shall at all times coordinate activities with and cooperate with OCFCD's Resident Engineer to ensure timely review of MODIFICATION activities to facilitate the channel construction activity,but the decision of OCFCD's Resident Engineer shall be final. 5. Review and expeditiously approve change order submittals from OCFCD. SANITATION DISTRICT shall not unreasonably withhold consent to change order submittals. If SANITATION DISTRICT does not respond to a change order submittal within ten(10)business days, the change order will be deemed approved, unless the change order requires increased construction costs payable by SANITATION DISTRICT, in which case the change order requires the approval of the SANITATION DISTRICT Board of Directors and no time limit will apply. 6. Upon OCFCD's completion and acceptance of the construction work, (A) Continue to own,operate, and maintain the FACILITY and (B) if there are no outstanding claims arising out of the construction,release OCFCD from any and all liability arising from the construction of the FACILITY. 7. Upon SANITATION DISTRICT's inspection and approval of the construction work for the MODIFICATION and receipt of an Invoice and Final Accounting Report from OCFCD, provide to OCFCD final payment for the MODIFICATION, determined as the sum of 7A, 7B, and 7C, less any progress payments made pursuant to Section I1.3: (A) The actual sum of item prices bid for the MODIFICATION, from the CONTRACTOR to whom OCFCD has awarded the contract for Project(subject to the cost limitations set forth in Section 11.2). (B) Change order expenses approved by the SANITATION DISTRICT Board of Directors related to work involved with the MODIFICATION, if any. 4811-58M2 3.3 4 Agreement MA-080-17010249 (C) Ten percent(10%) of the actual amount determined in B.7.A. and II.7.13. above to reimburse OCFCD for costs incurred for administration and inspection related to the MODIFICATION. SECTION III. IT IS MUTUALLY UNDERSTOOD AND AGREED: 1. Should litigation be necessary to enforce any terms, covenants or provisions of this AGREEMENT then each PARTY shall bear its own litigation and collection expenses,witness fees, court costs and attorney's fees. 2. [Intentionally omitted.] 3. The terms and provisions of this AGREEMENT shall be binding upon and inure to the benefit of the PARTIES and their successors and assigns. 4. This AGREEMENT may be executed in two counterparts, and each such counterpart shall be deemed to be an original. 5. No alteration or variation of the terms of this AGREEMENT shall be valid unless made in writing and signed by the PARTIES, and no oral understanding or agreement not incorporated herein shall be binding on any of the PARTIES. 6. Indemnification. (A) OCFCD shall fully indemnify and hold harmless SANITATION DISTRICT, and its elected officials, officers, agents,contractors, and employees from all liability from loss, damage or injury(as defined in Government Code section 810.8)to persons or property, arising in any manner out of the performance of or occurring by reason of anything done or omitted to be done in connection with the PROJECT, except for the negligence or willful misconduct of SANITATION DISTRICT or its elected officials, officers,agents, contractor or employees in designing or inspecting the PROJECT. (B) SANITATION DISTRICT shall fully indemnify and hold harmless OCFCD, and its elected officials, officers,agents, contractors, and employees from all liability from loss, damage or injury (as defined in Government Code section 810.8)to persons or property, arising in any manner out of SANITATION DISTRICT's design or inspection of the MODIFICATION, except for the negligence or willful misconduct of OCFCD or its elected officials, officers,agents, contractors or employees in constructing the MODIFICATION. 7. This AGREEMENT contains the entire agreement between the PARTIES with respect to the PROJECT. 8. If any part of this AGREEMENT is held, determined or adjudicated to be illegal, void or unenforceable by a court of competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the fullest extent reasonably possible. 4811-58M2 3.3 5 Agreement MA-080-17010249 9. All notices or other communication provided for herein shall be in writing and shall be personally served or delivered by United States mail,registered or certified return receipt requested,postage prepaid, addressed as follows with a courtesy copy by email: SANITATION DISTRICT: OCFCD: Attn: Rob Thompson, Attn: Utilities Unit Director of Engineering Public Works/Project Management/Utilities Orange County Sanitation District County of Orange 10844 Ellis Avenue 300 North Flower Street Fountain Valley, CA 92708 Santa Ana, CA 92703 Email: RThomnsonaocsd.com Email: Elsa.Ramirez0,ocnw.oceov.com Any party may,by notice to the others, designate a different address for notices which shall be substituted for that specified above. Any notice given as provided in this subparagraph shall be deemed to have been received, if personally served,as of the date and time of service, or if deposited in the mail as provided above, forty-eigbt(48)hours after deposit in the mail. 10. This AGREEMENT shall be construed and enforced in accordance with California law. It. The PARTIES represent and warrant that this AGREEMENT has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. The PARTIES intend for this AGREEMENT to be effective as of the Effective Date. ORANGE COUNTY SANITATION DISTRICT Dated: By: Gregory C. Seboum Board Chairman ATTEST: By: Kelly A. Lore Clerk of the Board APPROVED AS TO FORM : By: Special Counsel 4811-5822-0 33 6 Agreement MA-080-17010249 ORANGE COUNTY FLOOD CONTROL DISTRICT Date: By: Chairwoman of the Board of Supervisors SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD By: Robin Stieler Clerk of the Board of Supervisors Orange County, California APPROVED AS TO FORM: County Counsel By: Deputy Date: 4811-58M2 3.3 7 Agreement MA-080-17010249 EXHIBIT 1 MODIFICATION PLAN AND SPECIFICATIONS APPROVED BY SANITATION DISTRICT 4811-58M2 3.3 8 GAP SPACING IN CONDUIT BOXIISHEAR KEY F OGNJA RON NOTE --WALL ANN APPROF 6' -NOTE: 11 GROU TO REMAIN IS MATERAL PER pAL% TILL PER COUNTY CRACKEDp CONTRACTOR i0 COUNTY + OF ORANGE DRAWINGS CONCRE'E ENCASEMENT TRANS HIGH REMOVE NO RTRACTO WITH 2 DRAWINGS Gi 6- THICKNESS TO MIN. RED. EXISTING CB'CASING SACK SAND/CEMEN" GROUT. PIPE FINAL SURFACE OF GROUT 10 BE THUM EO ANN SMPITH BEFORE NOTE: 3OF APPLICATION 0 TYE POLYSTYRNE. POLYSTYRENE o F db'F`A l f , EXISTINGCONCRETE ELL AND REMOVE EAS ING e GROUT CASING AS REDUIRED. REMOVE L LROJT 07H MAN OPERATED TO L USE NOTHING GREATER THAO N A T] JACK HAMMER AND CONE FE iC RAW TAiEKNEC$ EXISTING G CONCRETE NOTE FX CTXN ]-IJ" OIAM`TER, VAR IFS ENCASEMENT TYP.AROUND AND OI.f.TnF IkOry PmF SF WFR. REMOVAL OF EX ST'.NO ADOVE PIPES OB'CASINGAND SEWER IS AC TrvC CONTRACTOR A% S1E EL CASING ANN SLURRY BELOW PIPE TO REMAIN. GROUT IG L. IIISC Exm_ML uUIIOI. GEED TO MAINTAIN OWNERSHIP WHEN WORK NO AROUND SEWER. D OF REMAINING CASING, DETAIL ENCASEMENT.AND SEWERS. SECTION NTS N S LOU NOAT OV MATERIAL PER COUNTY ORAWNCS� HEIGFT A BOTTOM OF PROP OS J WALL OR FOC➢NG NOTES TO VARY 1 AIRSPAGF In9DF USING IS ASSUMED TO BE YPOLYSTYRENE EXPANSION PLAMMASLE CUT OPEN CASING USING APPROPRIATEMONITOR -� MATERIAL(TYE)(I'MIN AT END 'HOT WORK" PROCEDURES. MONITOR FOR FLAMMABLE ((���� OFL-WALL).SHALL BE ABETSCASES AND FI CAN ON- AS NECESSARY. HEIGHT CF " - C578 TYPE VL TO BE OWNED BY VROUi TO CCFCD QY] G TRACTOR ID CON TACT OCSD PRIOR TO ARY. CCMMENCEMENT OF ENCASEMENT DEMOLITION. USED E WILL NOLO TANK_ THE PIPES PRIOR TO AND AFTR TO CCNFIRM PIPE SOJNDNESS 6 vP� SECTION /C1 xTs 9 ` Exhibit 1 LETso1 I, ORANGE COUNTY ENCASEMENT)CaroUEM REMOVAL AND 3a e SANITATION DISTRICT PROTECTIONU PORN FOR..SEMFI 1 T �. \ AT wF3191x AYBA.£ BOARD OF DIRECTORS Meeting Date To BE.of Dir. 01125117 AGENDA REPORT Item Number Item Number n Orange County Sanitation District FROM: James D. Herberg, General Manager Originator: Rob Thompson, Director of Engineering SUBJECT: CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT NO. 2, PROJECT NO. P2-110 GENERAL MANAGER'S RECOMMENDATION A. Receive and file Bid Tabulation and Recommendation for Consolidated Demolition and Utility Improvements at Plant No. 2, Project No. P2-110; B. Receive and file Orange County Sanitation District's Notice of Intent to Award dated December 5, 2016; C. Receive and file Award Protest from Shimmick Construction Co., Inc. dated December 13, 2016, concerning the award to Flatiron West, Inc.; D. Receive and file response letter from Flatiron West, Inc. dated December 20, 2016, regarding the bid protest of Shimmick Construction Co., Inc.; E. Receive and file Orange County Sanitation District's determination letter dated December 27, 2016, to Shimmick Construction Co., Inc. responding to Award Protest; F. Deny Award Protest filed by Shimmick Construction Co., Inc.; G. Award a Construction Contract to Flatiron West Inc. for Consolidated Demolition and Utility Improvements at Plant No. 2, Project No. P2-110, for a total amount not to exceed $16,730,000; H. Approve a construction contract contingency of$1,338,400 (8%); I. Approve a Professional Consultant Services Agreement with Stantec Consulting Services, Inc.to provide construction support services for Consolidated Demolition and Utility Improvements at Plant No. 2, Project No. P2-110, for an amount not to exceed $1,499,839; and J. Approve a Professional Consultant Services Agreement contingency of$149,984 (10%). Page 1 of 4 BACKGROUND The Orange County Sanitation District(Sanitation District)began operations in the 1950s. Some of the original facilities are still standing, although subsequent process upgrades have resulted in their abandonment. This project will demolish Digesters A and B; Primary Clarifiers A, B, and C; the Air Compressor Building; the Emergency Power Building; and several other facilities that are at the end of their useful lives. Several existing tunnels will be demolished or rehabilitated including new pipe supports, drainage improvements, structural repair, lighting improvements, etc. The project area will also receive extensive grading, drainage, and paving improvements. Summary information on the bid opening for Consolidated Demolition and Utility Improvements at Plant No. 2, Project No. P2-110, is as follows: Project Budget $38,460,000 Engineer's Estimate $25,931,438 Bidder Amount of Bid Flatiron West Inc. $16,730,000 Shimmick Construction Co., Inc. $16,850,000 Kiewit Infrastructure West Co. $17,142,000 W. M. Lyles, Co. $17,501,668 J. F. Shea Construction, Inc. $18,267,175 Quest Civil Constructors, Inc. $24,587,800 Staff recommends awarding a construction contract to the lowest responsive and responsible bidder, Flatiron West Inc., for Consolidated Demolition and Utility Improvements at Plant No. 2, Project No. P2-110. In 2014, the Sanitation District awarded the design of this project to MWH Americas, Inc. Since then, the company was acquired by Stantec Consulting Services, Inc. Stantec Consulting Services, Inc. successfully furnished engineering services for the design of this project and their support services during construction will provide continuity through the completion of the project. Staff negotiated with Stantec Consulting Services, Inc. for these support services in accordance with the Sanitation District's adopted policies and procedures. A review of the proposed price was conducted using estimated quantities of requests for information, submittals, meetings, site visits, change order review, and design revisions, as well as the level of effort for preparing record drawings. Based on this review, staff determined the negotiated fee to be fair and reasonable for these services. Page 2 of 4 RELEVANT STANDARDS • CA Government Code 4526, select the "best qualified firm" and "negotiate fair and equitable fees" • CA Public Contract Code Section 20103.8, award construction contract to lowest responsive, responsible bidder PROBLEM The area where the facilities are located is needed for upcoming Sanitation District projects. A construction contract is needed to demolish the facilities and a Professional Consultant Services Agreement is needed to authorize the design consultant to provide engineering services during construction. PROPOSED SOLUTION Award the construction contract, Consolidated Demolition and Utility Improvements at Plant No. 2, Contract No. P2-110. Award a Professional Consultant Services Agreement to Stantec Consulting Services, Inc. TIMING CONCERNS If this demolition is not completed by 2019, construction of other projects will be delayed. RAMIFICATIONS OF NOT TAKING ACTION If the facilities are not demolished, the other critical projects could not be constructed. PRIOR COMMITTEE/BOARD ACTIONS October 2014 - Approved a Professional Design Services Agreement with MWH Americas, Inc. to provide engineering design services for an amount not to exceed $2,443,316 and approved a contingency of$244,332 (10%). ADDITIONAL INFORMATION The Project was advertised for bid on September 28, 2016, and six sealed bids were received on November 21, 2016. The bids were evaluated in accordance with the Sanitation District's policies and procedures. An award recommendation notice was sent to all bidders on December 5, 2016. Shimmick Construction Co., Inc. (Shimmick), the second low bidder, sent a formal protest of the award to the Sanitation District on December 13, 2016, alleging bid defects in the Flatiron West Inc. bid (Flatiron). Bid documents require all bidders to submit a Safety Declaration in which bidders and subcontractors identify safety information including their Experience Modification Rate (EMR), a number that compares a firm's injury-related claims to the average of other similar businesses. A lower rate indicates a better safety Page 3 of 4 record. The Sanitation District bid documents require that subcontractors have an EMR at or below 1.25. The Contractor is required to substitute any subcontractor who does not meet the requirement. Shimmick contended that two of five subcontractors listed in Flatiron's bid (Penhall and Calmex) had EMR slightly over 1.0 at the time of bid and further alleged that this deviation rendered Flatiron's bid non-responsive. In consultation with Sanitation District General Counsel, the Sanitation District reviewed and responded to this protest. The protest does not merit a change to the award recommendation for the following reasons: - All of Flatiron's subcontractors meet safety eligibility requirements set forth in the bid documents. Sanitation District Safety staff verified this information. - Information disclosure provisions in the bid documents regarding EMR allows the Sanitation District the option to request additional information from the bidder after bid opening. Therefore, the EMR of a subcontractor is not a responsiveness issue under the bid documents. Based on the above, staff, in consultation with Sanitation District's General Counsel, responded to Shimmick's protest and found protest statement allegations unfounded. Shimmick did not request an appeal of Sanitation District staff determination as provided for by the Sanitation District's procedures and the deadline to file an appeal expired. CEQA Notice of Exemption was filed on April 30, 2014; 180-day statute of limitations has expired from approval of Professional Design Services Agreement. FINANCIAL CONSIDERATIONS This request complies with authority levels of the Sanitation District's Purchasing Ordinance. This item has been budgeted (Budget FY2016-17&2017-18, Section 8, Page 10) and the budget is sufficient for the recommended action. ATTACHMENT The following attachment(s)are included in hard copy and may also be viewed on-line at the OCSD website (www.ocsd.coml with the complete agenda package: • Shimmick Construction Co., Inc. Award Protest Letter • Flatiron West Inc. Response to Bid Protest Letter • Sanitation District Response to Shimmick's Award Protest • Sanitation District Intent to Award Letter • Construction Contract • Professional Construction Services Agreement VP:dm:gc Page 4 of 4 SH CK CO TION General Engineering Contractor State License No.594575 December 12, 2016 Jay Kaura, C.P.M Contracts Administrator Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, CA 92708 Email: oonstruction(cDocsd.com Re: Project No. P2-110, Consolidated Demolition and Utility Improvements at Plant 2 Subject: Protest of Recommendation of Award to Flatiron West, Inc. Dear Mr. Kaura: Pursuant to Orange County Sanitation District's ("OCSD") Instructions to Bidders, Section IB-29 FILING OF PROTESTS AND PROTEST PROCEDURES (see Attachment 1 hereto), Shimmick Construction Company, Inc. ("Shimmick") submits the following protest to OCSD's Award Recommendation Notice dated December 5, 2016 (see Attachment 2 hereto) wherein OCSD provides notice of its intent to award the P-2-110, Consolidated Demolition and Utility Improvements at Plant No. 2 contract ("Contract") to Flatiron West, Inc. The intent of this letter is to: (1) Protest against any award of the above referenced Contract to any bidder other than Shimmick, as Shimmick is the lowest responsive and responsible bidder (see below Shimmick protest of Flatiron West, Inc.); and (2) Request to be informed (by telephone or fax) as soon as any staff reports or recommendations concerning any issues pertaining to the award of the above referenced Contract are available to the public, so we can immediately inspect those reports or recommendations. If this letter is not sufficient to accomplish any of these purposes, please let us know immediately what additional documentation is required. If OCSD does not respond, we will proceed on the basis that this letter is sufficient.' A. Name of Protester Shimmick Construction Company, Inc. 16481 Scientific Way Irvine CA 92618 949-333-1500 r Flatiron's Part 5 Bid Submittal Form is attached as Attachment 10 hereto. However, for ease of reference, specific Bid Submittal Form sections discussed below are identified and separately attached. Home Office:8201 Edgewater Dr.Suite 202• Oakland,CA 94621 • Phone(510)7775000 • Fax(510)777-5099 16481 Scientific Way 0 Irvine,CA 92618 0 Phone(949)333-1500 0 Fax(949)333A510 !4G;e�.�ml 7 Engineering Contractor State License No. 594575 B. Proiect Being Protested Project No. P2-110, Consolidated Demolition and Utility Improvements at Plant 2 C. Grounds for Bid Protest The bid of Flatiron West, Inc. (Flatiron) is non-responsive and should be rejected due to misstating the safety qualifications of its listed subcontractors and failing to comply with the Invitation For Bids ("IFB") by incorrectly completing the bid submittal forms, and, in particular, Form BF-6 Safety Declaration of Contractor. In this regard, Flatiron provided in Form BF-2, LIST OF SUBCONTRACTORS, its listed subcontractors (see Attachment 3 to this Award Protest Statement): Penhall Company Calmex Engineering Inc. K D C Inc. dba Dynalectric Southern Counties Quality Masonry Preferred Modular Structures Inc. Flatiron then provided in Form BF-6, SAFETY DECLARATION OF CONTRACTOR (see Attachment 4 hereto) information regarding its safety record as well as that of its subcontractors, including those companies required to be listed in Form BF-2 above. Form BF-6, SAFETY DECLARATION OF CONTRACTOR (see Attachment 4 hereto) expressly required all Bidders, prior to submitting a Bid, to "pre-qualify each of its Subcontractors." On Form BF-6, SAFETY DECLARATION OF CONTRACTOR, Question 7.C, (see Attachment 4 hereto) all Bidders were required to truthfully and accurately answer the following question: C. Do any of the CONTRACTOR's Subcontractors have a workers' compensation EMIR between 1.01 and 1.25? Flatiron verified on Form BF-6 (See Attachment 4 hereto) that it did not have a Subcontractor with a workers' compensation EMIR between 1.01 and 1.25. However, this appears untrue. Attached is a copy of Calmex's and Penhall's current workers' compensation EMIR (see Attachment 5 [Calmex Engineering EMR] and Attachment 6 [Penhall Company EMR]). These ratings are developed by the Workers' Compensation Insurance Rating Bureau California (WCIRB California). A review of the EMIR rates for Flatiron's listed Subcontractors establishes that both Penhall Company and Calmex Engineering Inc. have workers' compensation EMIR'S between 1.01 Home Office: 8201 Edgewater Dr.Suite 202• Oakland,CA 94621 • Phone(510)7775000 • Fax(510)777-5099 16481 Scieni fic Way 0 Irvine,CA 92618 0 Phone(949)333-1500• Fax(949)333-1510 SH V C1 Engineering Contractor State License No.594575 and 1.25. Flatiron did not accurately disclose the true workers' compensation EMR's of Penhall Company and Calmex Engineering Inc. Whether willful or inadvertent, Flatiron was required to thoroughly pre-qualify its Subcontractors prior to submitting its bid. Because it failed to do so, Flatiron's bid should be found non-responsive in accordance with Instruction to Bidders Section IB-13 BID EVALUATION PROCESS (Attachment 7 hereto) and Flatiron should not be considered for Contract award? Furthermore, within the bid package that is signed by all Contractors that submit a bid, Form BF-1 BID LETTER Section LEGAL COMPLIANCE (see Attachment 8 hereto), requires, among other things, Subcontractor certification: In addition to the formal certifications provided, the Bidder certifies that it has examined the experience, skill, licensing and certification requirements specified and that the entities (Bidder, Subcontractor(s), Supplier(s)) performing the Work under the Contract will fulfill the specified requirements. The last section of Form BF-1 BID LETTER also requires verification of the bid representations: Bidder certifies under penalty of perjury under the laws of the State of California that all representations herein made are true and correct. (Contractor's License Declaration must be included with Bid). By not accurately representing its listed Subcontractors workers' compensation EMR, Flatiron did not thoroughly vet its Subcontractors and failed to meet all the specified bid requirements. In contrast, Shimmick screened and prequalified its Subcontractors and responded to the safety questions in form BF-6 correctly. Flatiron did not, and by so doing gained a competitive advantage over the other bidders that correctly pre-qualified their subcontractors. Furthermore, per the Instructions to Bidders Section IB-17 BID MISTAKES (AFTER OPENING) (see Attachment 9 hereto), Flatiron may have had the opportunity to claim a mistake and seek relief in accordance with §5100, et. seq. of the California Public Contract Code. Flatiron's potential ability to withdraw its bid without forfeiting its bid bond constitutes an unfair advantage. (See, e.g., MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal. App. 4th 359.) In addition, as is well-known, maintaining integrity in the public bidding process and eliminating unfair competitive advantages requires that non-compliance with material bid requirements result in a bid being determined non-responsive (and, in some cases, the bidder being deemed non-responsible): z Flatiron's failure to properly pre-quality its Subcontractors also deprived OCSD's ability to properly conduct a Subcontractors Safety Evaluation based upon true and accurate disclosures under IB-13 BID EVALUATION PROCESS, thereby further undermining the competitive bidding process and giving Flatiron an unfair advantage. Home Office:8201 Edgewater Dr.Suite 202• Oakland,CA 94621 • Phone(510)777-5000 • Fax(510)777-5099 16481 Scientific Way 0 Irvine,CA 92618 0 Phone(949)333-1500• Fax(949)333-1510 7 !ffG;e.!1a1 Engineering Contractor State License No. 594575 The purpose of requiring governmental entities to conduct competitive bidding is to eliminate favoritism, fraud, and corruption; avoid misuse of public funds; and stimulate advantageous marketplace competition. Because of the potential for abuse of that purpose that is caused by deviations from strict adherence to contract standards, bids receive close judicial scrutiny. Contracts awarded without strict compliance with bidding requirements will be set aside, even where there was in fact no corruption or adverse effect upon the bidding process; and even where the deviations would save the entity money. This is so because it is important to maintain integrity in government and because of the ease with which policy goals underlying competitive bidding requirements may be surreptitiously undercut. (See, Konica Business Machines v. Regents of the University of Califomia (1988) 206 Cal.App.3d 449.) Here, the Instructions to Bidders Section IB-13 BID EVALUATION PROCESS (see Attachment 7 hereto) devotes approximately three and one-half pages (of approximately four pages) to safety and the accurate reporting of safety at the time of bid. This evidences the high value that OCSD places on safety and the materiality of compliance with this section in bid submissions. As a result, it is incumbent upon each responsive bidder to perform their due diligence and have their insurance brokers verify the veracity of the information provided to them by all Subcontractors and/or to otherwise verify the accuracy of the bid submission to OCSD. Shimmick fully appreciates and agrees with OCSD's focus of safety and shows it by giving the safety forms the full attention required by OCSD. Flatiron's apparent disregard for accurate safety reporting deems its bid non- responsive, as Flatiron was required to accurately verify its bid safety representations and failed to do so at a most basic level. D. Requested Relief Flatiron's bid was not in strict accordance with the IFB Documents. As such, Flatiron's bid should be deemed non-responsive and the Contract should be awarded to the lowest responsible and responsive bidder, Shimmick. The undersigned declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Irvine, CA, on December 12, 2016. -Z, . C�" W. Andrew Sloane, III Vice President and Secretary Shimmick Construction Company, Inc. Home Office: 8201 Edgewater Dr.Suite 202 a Oakland,CA 94621 a Phone(510)7775000 a Fax(510)7775099 16481 Scientific Way 6 Irvine,CA 92618 0 Phone(949)333-1500 0 Fax(949)333-1510 7 15G;en.�Ial Engineering Contractor State License No.594575 Enclosures/Attachments: 1. IFB — IB-29 FILING OF PROTESTS AND PROTEST PROCEDURES 2. OCSD Award Recommendation Notice Dated December 5, 2016 3. FLATIRON FORM BF-2, LIST OF SUBCONTRACTORS 4. FLATIRON FORM BF-6, SAFETY DECLARATION OF CONTRACTOR 5. WORKERS' COMPENSATION EMIR— CALMEX ENGINEERING 6. WORKERS' COMPENSATION EMIR — PENHALL COMPANY 7. IFB — I13-13 BID EVALUATION PROCESS 8. FLATIRON FORM BF-1, BID LETTER 9. IFB — IB-17 BID MISTAKES (AFTER OPENING) 10.FLATIRON BID SUBMITAL FORM (ENTIRE FORM) Home Office:8201 Edgewater Dr.Suite 202 • Oakland,CA 94621 • Phone(610)777-5000 • Fax(510)777-5099 16481 Scientific Way 0 Irvine,CA 92618 0 Phone(949)333A500 0 Fax(949)333-1510 SH CK CO CTION General Engineering Contractor State License No.594575 ATTACHMENT 1 Home Office:8201 Edgewater Dr.Suite 202• Oakland,CA 94621 • Phone(510)777-5000 • Fax(510)777-5099 16481 Scientific Way 0 Irvine, CA 92618 0 Phone(949)333-1500 0 Fax(949)333-1510 D. Before the award of the Contract by OCSD, any Bidder shall furnish, upon request of OCSD, a recent statement of financial condition, previous construction experience, information on owned equipment and/or information regarding the specific use and availability of equipment on the subject Project as may be requested by OCSD. Failure by a Bidder to furnish the information requested shall be considered sufficient grounds for rejection of the Bid. E. OCSD reserves the right to reject any or all Bids not suitable to their best interest. If, in the judgment of OCSD, a Bid is unbalanced, Non-Responsive or if the Bidder is Not Responsible, it shall be considered sufficient grounds for rejection of the entire Bid. IB-29 FILING OF PROTESTS AND PROTEST PROCEDURES This Section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OCSD with respect to the Invitation for Bids (IFB). All communications to OCSD relating to a Protest shall be in writing and submitted electronically to construction(o)ocsd.com. By submitting a Bid, each Bidder hereby agrees and understands that the Bidder must comply with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OCSD's determination of a Bidder as Not Responsible. This procedure is not intended to address issues concerning Bid responsiveness. The following terms as used in this Section shall have the following meanings: Protest shall mean a written objection by an interested party or affected party to (i)the requirements or specifications contained in the IFB (solicitation protest); or (ii) a proposed award recommendation (award protest). Days shall mean calendar days, unless otherwise specified. Interested Party shall mean: (1)on solicitation, all Bidders or prospective Bidders; (2) on award, the unsuccessful Bidder with a direct economic interest in the outcome of their protest. Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Bid due date as specified herein. Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Contract, which shall be submitted after receipt of Bids, but before award of the Contract, as specified herein. File or Submit shall refer to the date of receipt by OCSD. Affected Parties shall mean Bidders on a procurement, whose direct economic interest would be affected by a submitted protest. C-IB-050815 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 17 of 22 Specific procedures and requirements are as follows: A. Solicitation Phase Protest The purpose of the IFB is to obtain competitive Bids from interested Bidders. Any Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OCSD of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements A Solicitation Protest Statement must be submitted to OCSD's Contracts Administrator identified in the IFB via electronic mail (e-mail) at construction(a)ocsd.com by 4:00 p.m. (Pacific Time zone) no less than fifteen (15) days prior to the Bid due date, and must contain all of the following to be considered: a) The name, address, and telephone number of the protestor; b) The Project Name and Project Number of the IFB being protested; c) A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal documentation in support of the protest; and d) The desired resolution to the protest. If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OCSD will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the time period specified herein shall constitute a waiver of the right to protest the specifications or requirements of the IFB. Solicitation Protest Statements are public documents. OCSD will provide copies of the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OCSD's Contracts, Purchasing and Materials Management Division Manager(Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Bidders to submit statements or arguments regarding the protest. OCSD's Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. C-IB-050815 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 18 of 22 OCSD's Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Bidder prior to Bid opening. The written decision will cite any actions that will or will not be taken in response to the Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse. B. Award Protest 1. Award Recommendation Following Bid opening and evaluation of the Bids, OCSD will issue an award recommendation to each Bidder through any one of the following methods: a) Delivery via overnight carrier; or b) Posting the award recommendation on OCSD's online bidding system as identified within the IFB. Refer to the above Section entitled "Submission and Opening of Sealed Bids" for information regarding the availability of the Bid Tabulation and copies of Bids. Requests shall be made to construction(c)ocsd.com, and shall contain the following in the subject line of the e-mail: "PROJECT NO. P2-110—Request for Copies". 2. Contents and Requirements An Interested Party, who has reason to believe that a free and open competition has not taken place in the Bid opening, evaluation of the Bids, and award recommendation, is permitted to protest OCSD's award recommendation by submitting the Award Protest Statement to the OCSD Contracts Administrator identified in the IFB via electronic mail (e-mail) at constructionaocsd.com no later than 4:00 p.m. (Pacific Time zone)on the seventh (r)day after OCSD issues the award recommendation or some similar announcement. OCSD will not accept an Award Protest Statement, or similar document, prior to the date OCSD issues its award recommendation to the Bidders. Award Protest Statements, or similar document, received prior to the issuance of OCSD's award recommendation will be considered premature and will be immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following to be considered: a) The name, address and telephone number of the protestor; b) The Project Name and Project Number of the IFB being protested; c) The OCSD action or recommendation that is being protested; d) The name(s)of all Affected Parties; C-IB-050815 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 19 of 22 e) A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence ; f) Each and every ground on which the protestor bases the protest by specific references to parts of the IFB, which shall be attached as exhibits; g) Each and every reason that all other Affected Parties who may be in line for the purchase or Contract award should not be awarded the purchase or Contract; h) A clear statement of the relief requested and the statutory or case law basis for such relief; and i) Signed and sworn by a principal of the protestor If the submitted Award Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OCSD will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OCSD will notify the Affected Parties when a protest has been submitted, and will provide copies of the Protest Statements to the Affected Parties as soon as is reasonably practical. 3. Evaluation and Determination The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. (Pacific Time Zone) on the third (V) business day after the receipt of the Award Protest Statement from OCSD. The Purchasing Manager, or designee, shall review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing. 4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the protestor may submit a written appeal to the Director of Administrative Services and the Director of the Department requesting the Procurement, and immediately send copies to all Affected Parties. The appeal must be submitted no later than 4:00 p.m. (Pacific Time zone)within seven (7)days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and C-IB-050815 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 20 of 22 documentation previously submitted to the Purchasing Manager, or designee; (2)a copy of the final decision of the Purchasing Manager, or designee; and (3)a brief statement setting forth all factual and legal bases for the appeal. The Director of Administrative Services, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager's determination. For Contracts to be awarded by District Staff, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final. For Contracts to be awarded by the Board of Directors, the Board may consider any Award Protest Statements in connection with its consideration of the Contract. C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required; 2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OCSD. D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OCSD's choice of remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OCSD shall consider all the circumstances surrounding the IFB and/or award, including, but not limited to: 1. The seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the Contract requirement; and 4. The effect that implementing the remedy will have on OCSD. F. Remedies If OCSD determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OCSD, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate: 1. Prior to award, OCSD may issue anew solicitation, make anew selection/award recommendation, or award the Contract consistent with applicable statutes, regulations, policies and procedures; C-IB-050815 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 21 of 22 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance. G. Legal Action Any legal action to set aside the final determination of OCSD must be filed no later than the 901h day following the date of the final determination consistent with Code of Civil Procedure section 1094.6. In the event a protester files a legal action related to the protest, if OCSD prevails, OCSD reserves the right to seek reimbursement of its costs, including attorneys' fees, to the fullest extent permitted by law. IB-30 BIDDERS' QUESTION SUBMITTED VIA ELECTRONIC TELECOMMUNICATION All questions submitted via electronic telecommunication (email) shall be submitted in the time set forth in the Notice Inviting Bids, and in accordance with the requirements set forth herein. All email, to be effective, shall have a date and time receipt acknowledgment from OCSD, and shall be clearly identified with the following title in the Subject line: 'PROJECT NO. 132- 110: Bidder Questions:' It is the Bidders sole responsibility to ensure that the email question is received by OCSD in a timely manner. Upon receipt of an email question, OCSD shall provide acknowledgement of receipt within one (1) Business Day. If the Bidder does not receive an acknowledgement of receipt of an email question from OCSD within the above referenced timeframe, Bidder shall assume the email transmission was not received by OCSD, and shall be responsible for resubmitting the same in a timely manner, and if necessary by an alternate allowable method of transmission allowing for confirmation of receipt. C-IB-050815 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 22 of 22 SH CK CO CTION General Engineering Contractor State License No.594575 ATTACHMENT 2 Home Office:8201 Edgewater Dr.Suite 202• Oakland,CA 94621 • Phone(510)777-5000 • Fax(510)777-5099 16481 Scientific Way 0 Irvine, CA 92618 0 Phone(949)333-1500 0 Fax(949)333-1510 Serving: Orange County Sanitation District Anaheim 10844 Ellis Avenue,Fountain Valley,CA 92708 714,962.2411 • www.ocsd.com Brea Buena Park December 5, 2016 Via Email: pcamaur@shimmick.com Cypress & U.S. Mail Fountain Valley Paul C. Camaur Fullerton Shimmick Construction Co., Inc. 16481 Scientific Way Garden G -. Irvine, CA92618 Huntington Beach Irvine SUBJECT: AWARD RECOMMENDATION NOTICE Re: 132-110, Consolidated Demolition and Utility Improvements at Plant No. 2 La Habra La Pal The Orange County Sanitation District (OCSD) completed its evaluation of the Bids Los Alaml . submitted in response to the Invitation for Bids for the above-referenced Project. The lowest responsive, responsible Bidder is Flatiron West, Inc. Newport Beach- ., The award recommendation will be forwarded to OCSD's Board of Directors for Orange Contract award. Placentia The Board of Directors Meeting is scheduled for: Santa Ana Date: January 25, 2017 seal Beach Time: 6:00 P.M. Location: Orange County Sanitation District Stanton Board Room, Administration Building Tustin 10844 Ellis Avenue Fountain Valley, CA 92708 Villa Park The Final Agenda Report will not be posted until three days prior to the Board of County of orange Directors Meeting. Should you wish to determine if the item has been placed on the Costa Mesa agenda, please contact the Clerk of the Board Office at (714) 593-7130. Sanitary District Midway City Sanitary District WateeD ztlr Jay Kaura, C.P.M. Contracts Administrator Yorba Li Water Dist JSK:ms cc: R. Thompson V. Pilko J. Choi K. Lore Our Mission: To protect public health and the environment by Revision 013015 providing effective wastewater collection, treatment, and recycling. SH CK CO CTION General Engineering Contractor State License No.594575 ATTACHMENT 3 Home Office:8201 Edgewater Dr.Suite 202• Oakland,CA 94621 • Phone(510)777-5000 • Fax(510)777-5099 16481 Scientific Way 0 Irvine, CA 92618 0 Phone(949)333-1500 0 Fax(949)333-1510 ,\ \ s «+� � \itOR / \ ! - & \}�� \%�! , 0 ID % ` % \ ! S % ! \ g $» \ ~I�% % �\ e$ \ \ \ \ ® ` � 0 Q ! _\ } s \ il 98' - !\ a ® f !� \ , \ \ \ - : \ -0 }��% 0 \ ƒ ;« 7 � @ ƒ � s 0-f2 ® fill / pig; pal � \ p al ! # ! 1-0 � ! @ } `r PAN , $ !ƒ!IV / 22 } \ . C � % k \�� � ! % \ \ s�+« � l\ � � \ i§ ® ��\ % > » #\t ° % , \ $ \ C4,§ ® % \ k \ f\ $ $& \ \ � \ \ � \ �It \ \� % SH CK CO CTION General Engineering Contractor State License No.594575 ATTACHMENT 4 Home Office:8201 Edgewater Dr.Suite 202• Oakland,CA 94621 • Phone(510)777-5000 • Fax(510)777-5099 16481 Scientific Way 0 Irvine, CA 92618 0 Phone(949)333-1500 0 Fax(949)333-1510 Bid Submitted By: Flatiron West, Inc. (Name of Firm) BF-6 SAFETY DECLARATION OF CONTRACTOR The CONTRACTOR shall complete this form in its entirety and submit it to OCSD with its Bid in accordance with the Part 2—Instructions to Bidders section entitled 'Bid Evaluation Process'. Prior to submitting its Bid, the CONTRACTOR shall safety pre-qualify each of its Subcontractors. The CONTRACTOR shall require each of its Subcontractors to complete Items 5-9 of this form, execute and submit the form to the CONTRACTOR in accordance with the Part 2—Instructions to Bidders section entitled'Bid Evaluation Process'. CONTRACTOR certifies the following(check the appropriate box): 1. Does the CONTRACTOR have any Serious, Willful, Repeat, Serious and Willful,or Failure to Abate citations of Part 1 (commencing with Section 6300)of Division 5 of the Labor Code, during the past five-year period? ❑ No m Yes If Yes is checked, OCSD may require the CONTRACTOR to submit evidence of corrective actions being taken to abate further violations of Part 1 of Division 5 of the Labor Code. 2. Accident Frequency OCSD will evaluate the CONTRATOR's accident frequency factors for each calendar year submitted on the CAL/OSHA 300/300A Logs and Summaries and its three(3)year average using the Accident Frequency Factor tables as specified in the Instructions to Bidders. Prior to completing this Declaration,OCSD recommends that the CONTRACTOR calculate its accident frequency factors for each calendar year listed and its three(3)year average using the Accident Frequency Factor tables located in the Instructions to Bidders. The results of those calculations should be used to answer the following questions: OCSD requires the CONTRACTOR to have an accident frequency at or below a factor of 1.25 of the national average as published by the California Department of Industrial Relations(DIR)for the specific North American Industry Classification System(NAICS) Codes and applied to the accident history of the last three(3)years. Failure to check'Yes' in either A.or B.below will render the Bid Non-Responsive and the Bid shall be rejected. A. Does the CONTRACTOR have an accident frequency at or below a factor of 1.00 of the state average as published by the DIR for the specific NAICS Codes and applied to the accident history for the last three(3)years? la Yes OR BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 1 of 7 Bid Submitted By: Flatiron West, Inc. (Name of Firm) B. Does the CONTRACTOR have an accident frequency within a factor of 1.01 to 1.25 of the state average as published by the DIR for the specific NAICS Codes and applied to the accident history for the last three(3)years? ❑ Yes If 2.13. is Yes, OCSD may require the CONTRACTOR to submit evidence of corrective actions being taken to reduce the CONTRACTOR's accident experience if the accident frequency is within a factor of 1.01 to 1.25 of the state average as published by the DIR for its NAICS code and applied to the accident history for the last three(3)years. Such evidence shall include any or all of the following information for further consideration: • Copy of CONTRACTOR's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. 3. Workers'Compensation Experience Modification Rate OCSD requires the CONTRACTOR to have workers'compensation experience modification rate(EMR) at or below 1.25. Failure to check"Yes" in either A.or B.below will render the Bid Non-Responsive and the Bid shall be rejected. A. Is the CONTRACTOR's workers'compensation EMR at or below 1.00? m Yes OR B. Is the CONTRACTOR's workers'compensation EMR between 1.01 and 1.25? ❑ Yes If 3.13. is Yes, OCSD may require the CONTRACTOR to submit evidence of corrective actions being taken to reduce employee workplace injuries, illnesses and workers' compensation losses if the CONTRACTOR's workers'compensation EMR is between 1.01 to 1.25. Such evidence shall include any or all of the following information for further consideration: • Copy of CONTRACTOR's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 2 of 7 Bid Submitted By: Flatiron West, Inc. (Name of Fhm) 4. Does the CONTRACTOR have injury prevention programs instituted to the extent required by Section 3201.5 or 6401.7 of the Labor Code? 0 Yes ❑ No 5. Does any Subcontractor have any Serious,Willful, Repeat, Serious and Willful,or Failure to Abate citations of Part 1 (commencing with Section 6300)of Division 5 of the Labor Code,during the past five-year period? ❑ No oes If Yes is checked, OCSD may require the CONTRACTOR to submit evidence of the Subcontractor's corrective actions being taken to abate further violations of Part 1 of Division 5 of the Labor Code. 6. Accident Frequency of Subcontractors OCSD will evaluate Subcontractors'accident frequency factors for each calendar year submitted on the CAUOSHA 3001300A Logs and Summaries and its three(3)year average using the Accident Frequency Factor tables located in the Instructions to Bidders. Prior to completing this Declaration,the CONTRACTOR shall require each of its Subcontractors to calculate its accident frequency factors for each calendar year listed and its three(3)year average using the Accident Frequency Factor tables located in the Instructions to Bidders. The results of those calculations should be used to answer the following questions: OCSD requires all Subcontractors to have an accident frequency at or below a factor of 1.25 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history of the last three(3)years. CONTRACTOR shall be required to substitute any Subcontractor who fails to meet the minimum accident frequency requirements. A. Do any of the CONTRACTOR's Subcontractors have an accident frequency above a factor of 1.25 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history of the last three(3)years? dNo ❑ Yes BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 3 of 7 Bid Submitted By: Flatiron West, Inc. (Name of Firm) B. Do all of the CONTRACTOR'S Subcontractors have an accident frequency at or below a factor of 1.00 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history for the last three(3)years? 4/ No ❑ Yes C. Do any of the CONTRACTOR's Subcontractors have an accident frequency within a factor of 1.01 to 1.25 of the state average as published by the OR forthe specific NAICS Code and applied to the accident history for the last three(3)years? pP Yas If B.C. Is Yes, OCSD may require the CONTRACTOR to submit evidence from its Subcontractors)of corrective actions being taken to reduce the Subcontractor's accident experience if the Subcontractor's accident frequency is within a factor of 1.01 to 1.25 of the state average as published by the DIR for its NAICS code and applied to the accident history for the last three (3)years. If any Subcontractor is deemed not qualified based on the inadequacy of the corrective action taken to reduce the accident experience,CONTRACTOR shall be required to substitute any such Subcontractor. Such evidence shall include any or all of the following information for further consideration: • Copy of Subcontractor's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. 7. Workers'Compensation Experience Modification Rate of Subcontractors OCSD requires all Subcontractors to have workers'compensation experience modification rate(EMR)at or below 1.25. CONTRACTOR shall be required to substitute any Subcontractor who fails to meet the minimum experience modification factor requirements. A. Do any of the CONTRACTOR's Subcontractors have a workers' compensation EMR above 1.25? -0/No ❑ Yes BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO, P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 4 of 7 Bid Submitted By: Flatiron West, Inc. (Noma of Firm) B. Do all of the CONTRACTOR's Subcontractors have a workers'compensation EMIR at or below 1.00? ❑ No dyes C. Do any of the CONTRACTOR's Subcontractors have a workers'compensation EMIR between 1.01 and 1.25? Q"N0 ❑ Yea If 7.C. Is Yes, OCSD may require that the CONTRACTOR submit evidence from its Subcontractors) of corrective actions being taken to reduce employee workplace Injuries, illnesses and workers' compensation losses for each Subcontractor whose workers' compensation EMR is between 1.01 to 1.25. If any Subcontractor is deemed not qualified based on the inadequacy of the corrective action taken to reduce employee workplace injuries, illnesses and workers' compensation losses, CONTRACTOR shall be required to substitute any such Subcontractor. Such evidence shall include any or all of the following for further consideration: • Copy of Subcontractors IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. S. Do the CONTRACTOR's Subcontractors have injury prevention programs instituted to the extent required by Section 3201.5 or 6401.7 of the Labor Code? ,/Yea ❑ No 9. Accident Frequency Factor Worksheet a) Total Recordable Incident Rate Calculation Table Using the OSHA Form 300 and 300A logs and the table below, the Total Recordable Incident Rate(TRIR)is calculated for the past three(3)completed calendar years and three(3)year average in the table below. (Please see the California Department of Industrial Relations(DIR)website for more detailed information) BF{ SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 5 of 7 Bid Submitted By: Flatiron West, Inc. (Name of Firm) 1) The number of nonfatal injuries and illnesses is determined for each year by: I. Counting the number of OSHA recordable'cases for the year listed on the OSHA Form 300 (log)or, ii. Using the 300A(summary),adding the number of recordable cases entered in Column H+Column I +Column J to obtain the total injuries and illnesses. 2) The number of employee hours worked is located on the OSHA 300A Summary. 3) Using the formula provided below,the TRIR three(3)year average is calculated: Please see Califomia Code of Regulations Tide B, Chapter 7, Subchapter t,Article 2 for more information on determining a recordable injury and illness, Total Recordable Injury Rate Formula: #OSHA Recordable Iniunesrlllnesses x 200,000 = Company's Total Recordable Employee Hours Worked For Calendar Year Incidence Rate # OSHA /Employee =Company's Total Calendar Recordable x 200,000 Hours Worked Recordable Year InjRecordablees for Incidence Rate Calendar Year (TRIR) 20 15 18 x200,000 1,982,582 (A) 1.81 20 14 37 x200,000 2,054,025 (B) 3.60 20 13 26 x200,000 2,136.333 (C) 2.43 TRIR A +g +C =D 3 Year Average 3 b) Accident Frequency Factor Calculation Table I From the Total Recordable Incidence Rate(TRIR)calculated for each year in the table under Item a.)3.)above, the TRIR for each Calendar Year is copied into the spaces below identified as(A), (B), and(C). The 3 Year Average from the table above(D)is copied into the space below identified as(D). 2) The Bidder's industry NAICS code is looked up in the DIR Nonfatal Occupational Injuries and Illness in California Summary Tables at hko://www.dir.ca.aov/OPRUnonfatal,htm for each corresponding year'. 3) The DIR Industry Average is found for each corresponding year using Table 10 and entered in the spaces below identified as(E), (F), and(G). BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 6 of 7 Bid Submitted By: Flatiron West, Inc. (Hems of Firm) 4) The formula provided below is used to calculate the DIR Industry 3 year average; the product is entered into the space identified as(H)below. 5) Using the formula provided,the 3 year Accident Frequency Factor is calculated and the product entered into the space identified as(1)below. "DIR data has an approximate 10 month publishing delay. If the cument year is unavailable,please use the previous year. For example, 2010 DIR data will be used for both 2010 and 2011. Formula: Bidder's TRIR = Accident Frequency Factor DIR Industry Average Calendar Year Bidder TRIR DIR Industry Average 2015 (A) 1.81 (E) 3.00 20 14 (B) 3.60 (F) 2.60 2015 (C) 2.43 (G) 3.20 Bidder's TRIR (D)2.61 3 Year Average DIR Industry E+F+G =H (H)2.93 3 YearAverage 3 3 Year Accident Frequency DM = 1 (1) 0.89 Factor CONTRACTOR r 11/21/16 Signature Date Dale A.Nelson Printed Name Vice President Printed Tide Flatiron West, Inc. 237310 Company NAICS Code BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 7 of 7 Build the Best. Be the Best. FLATIRON Flatiron West Inc. 17701a Cost Me lows Drive San Marco;CA 92078 760 916 9100 cl 760 916 9101. December 20, 2016 www.FlatlronToM.mm VIA ELECTRONIC MAIL ONLY Jay Kaura, C.P.M. Contracts Administrator Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, California 92708 construction@orsd.com Re: Response To Bid Protest Entity: Orange County Sanitation District Project: Consolidated Demolition and Utility Improvements at Plant 2 Project No.: P2-110 Low Bidder: Flatiron West, Inc. Higher BidderlProtester., Shimmick Construction Dear Mr. Kal Flatiron West, Inc. is the lowest responsive bidder for the above-referenced Orange County Sanitation District project. This responds to the protest of Shimmick Construction, dated December 12, 2016. As detailed below, the protest is without merit and should be rejected. Shimmick's protest is contrary to the District's express framework, based on false allegations, and fails to raise any issue of bid responsiveness. Under California law, Shimmick has no basis to force the District to accept its higher price in place of Flatiron's low bid. The project should be awarded to Flatiron. 1. Factual Background A. Flatiron And The Proiect Flatiron West, Inc. is the Western Division of Flatiron, one of the largest and most experienced contractors in the United States. A top infrastructure contractor, Flatiron has completed large scale water projects such as the $32 million Leo J. Vander Lars Advanced Water Treatment Facility Expansion in Long Beach, California. The District published Notice Inviting Bids and bid documents ("Bid Documents")for Project No. P2-110, Consolidated Demolition and Utility Improvements at Plant 2 (the "Project"). The Project generally consists of demolishing existing older facilities and their associated equipment that are no longer in use, or are not structurally sound, or have reached the end of their useful life at wastewater treatment Plant No. 2. The Project's scope also includes construction and re-routing of utilities. The Engineer's estimate for the Project was $25,931,438.00. An Equal Opponunity Employer A HOCHTIEF Dampar, Build the Best. Be the Best. FLATIRON B. Flatiron's Low Bid And Protest The District opened bids for the Project on November 21, 2016. Flatiron submitted the low bid in the amount of$16,730,000.00, beating the Engineer's estimate by$9.2 million. One of the higher bidders, Shimmick, protested Flatiron's low bid, contending the District is required to accept Shimmick's higher bid price because of perceived deviations from the bid documents by two of Flatiron's subcontractors: Penhall Company and Calmex Engineering, Inc. Both alleged bid defects concern subcontractor Experience Modification Rate ("EMR"). Summarily, Shimmick contends that Penhall and Calmex have EMRs slightly over 1.0, somehow rendering Flatiron's bid non-responsive and unacceptable. The contention, as detailed below, is meritless. 2. Shimmick's Protest Seeks To Negate The Basic Subcontractor Safety Review Framework Established By The District Shimmick's protest is based on the false notion that subcontractor EMRs are a bid- responsiveness issue under the District's Bid Documents. In fact, the District established a subcontractor safety/EMR review and substitution framework in the Bid Documents—a framework having nothing to do with bid responsiveness or acceptability. For this reason, alone, Shimmick's protest is without merit. The Bid Documents included a Safety Declaration in which bidders and their subcontractors identified safety information about themselves, one of which was EMR. (Tab 1 [copy of Safety Declaration].) The District set a hard cutoff for subcontractor EMRs, stating, "OCSD requires all Subcontractors to have workers' compensation experience modification rate (EMR) at or below 1.25. (Tab 1, Safety Declaration, Question 7.) CONTRACTOR shall be required to substitute any Subcontractor who fails to meet the minimum experience modification factor requirements." (Tab 1, Safety Declaration, Question 7, emphasis added.) It is undisputed that all of Flatiron's subcontractors substantially exceeded the District's 1.25 eligibility requirement. If that were not the case, the District would make Flatiron substitute the subcontractor. Having a subcontractor with a disqualifying—over 1.25—EMR is not a bid responsiveness issue under the Bid Documents. Since all of Flatiron's subcontractors are well-within the 1.25 eligibility cutoff, Shimmick relies instead on an information disclosure provision that also has nothing to do with bid responsiveness. If a subcontractor has an EMR between 1.01 and 1.25, the District has the option to require a bidder to submit additional information. (Tab 1, Safety Declaration, Question 7C.) If the District requests such information and determines it to be insufficient, then the "CONTRACTOR shall be required to substitute any such subcontractor." (Ibid, emphasis added.) Again, the District's Safety Declaration established the remedy of subcontractor substitution rather than—as Shimmick contends—bid rejection. Notably, the Safety Declaration is consistent with the District's Instructions To Bidders, I13-13(13)(6)(c), which states: OCSD will perform the safety evaluation of the successful Bidder's Subcontractor(s) pursuant to the criteria specified for Bidders in this Section. The successful bidder shall substitute all Subcontractor(s) who fail the safety evaluation, with Subcontractor(s)who do meet the minimum safety requirements for the prices as submitted in the Schedule of Prices and at no additional costs to OCSD. (Tab 2, IB-13(13)(6)(c), emphasis added.) An Equal Opponumty Employer A HOCHTIEF Company Build the Best. Be the Best FLATIRON Summarily, Shimmick's protest is premised on a mischaracterization of the District's subcontractor safety review and EMIR requirements. For subcontractors with EMRs above 1.01 and less than 1.25, the District reserved the right to obtain additional safety information and to make the successful bidder replace the subcontractor if that information was insufficient. The District's subcontractor safety/EMR review has nothing to do with bid responsiveness/bid eligibility. For this reason, alone, the protest is without merit and should be rejected. 3. Shimmick's Allegation Regarding Calmex Is Simply Wrong Shimmick contends Flatiron subcontractor Calmex misrepresented its EMR on its Safety Declaration as less than 1.00. There was no misrepresentation. Calmex's EMIR is 0.69. This was accurate on bid day and was represented accurately to the District by Calmex in accordance with the requirements of the Safety Declaration. Shimmick objects to Calmex's EMIR for the upcoming 2017 calendar year, which is 1.04—still substantially lower than the District's 1.25 cutoff. Shimmick's argument is without merit for several reasons. First, the Safety Declaration sought information regarding current EMRs, not future EMRs that have yet to lake effect. As such, Calmex's declaration was accurate. Second, and more importantly, an EMIR of slightly over 1.00 gives the District the opportunity to request further information, which Calmex would supply if so requested. Under the framework in the bid documents, this is not a bid responsiveness issue. At worst, the District could direct Flatiron to substitute Calmex. 4. Shimmick's Allegation Against Penhall Is Without Merit Penhall's bid-day Safety Declaration stated that Penhall had an EMIR less than 1.00. This was based on a blended EMIR Penhall received from its workers' compensation insurer. The blended EMIR is averaged from multiple reporting agencies. Notably, neither the Instructions to Bidders nor the subcontractor section of Safety Declaration clearly required subcontractor EMRs come from a specific source. That said, the Instructions to Bidders required that prime-bidder's EMIR be supplied from the Workers' Compensation Insurance Rating Bureau of California ("WCIRB"). Consistent with that requirement, Penhall submitted (post-bid and through Flatiron) its EMIR as estimated by the WCIRB: 1.09. (Tab 3 [Penhall's letter dated November 28, 2016 with Flatiron cover letter].) While still far below the 1.25 eligibility cutoff, Penhall sought to ensure the District was aware of the distinction, such that the District could seek more information in accordance with the District's framework set forth above. For the reasons stated above, Penhall's submission of additional information has nothing to do with bid responsiveness. As such, Shimmick's protest is without merit and should be rejected. Moreover, Penhall complied with the bid requirements and was forthright with the District in clarifying its EMIR. 5. Even Absent The District's Subcontractor Substitution Framework, Shimmick Did Not Raise A Bid Responsiveness Issue Shimmick's fundamental criticisms would have nothing to do with bid responsiveness even if the District had not outlined the safety review and subcontractor substitution framework. Shimmick contends Flatiron's bid is non-responsive because Flatiron wrongly stated in its An Equal ooWnunuv EroIl A NocNnEF C nngan, Build the Best. Be the Best FLATIRON Safety Declaration that Penhall and Calmex had EMRs below 1.00. Under California law, Shimmick's allegation has nothing to do with bid responsiveness. As detailed below, Shimmick's allegation is actually an attack on Flatiron's responsibility—an attack that falls very short of the burden imposed by California law. Bid responsiveness is determined from the face of the bid. (Taylor Bus Sam, Inc. v. San Diego Bd. of Educ. (1987) 195 Cal.App.3d 1331, 1342 ["Taylor Bus'J; see also Great W. Contractors, Inc. v. Irvine Unified Sch. Dist. (2010) 187 Cal.App.4th 1425, 1454, as modified(Sept. 30, 2010), opinion supplemented on denial of rang, No. G041688, 2010 W L 3789323 ["Great West"].) Shimmick's protest is based on allegations and documentation not appearing on the face of the bid. Rather, Shimmick refers to outside investigation and documents it obtained outside of the bid protest from third parties. Since the alleged defect does not appear on the face of the bid, Shimmick has not raised an issue of responsiveness. The Court of Appeal addressed a similar protest in Great West. There, the protester—like Shimmick in this case—claimed that the low bidder had wrongly checked "no"to a bid form question, when it should have answered "yes." In Great West, the question was "Have you ever been licensed under a different name or license number?' (Id. at p. 1431.) The protester brought in outside information, showing the low bidder wrongly answered the question (one of the officers had been associated with another license). (Id. at p. 1432.) Acting on the protest, the public entity rejected the low bid as non-responsive. The Court of Appeal overturned the rejection in a scathing opinion, concluding the alleged inaccurate statement in the bid did not raise any issue of responsiveness. In overturning the wrongful bid rejection, the Court noted: (1)there was no defect apparent from the face of the bid, so as to create a responsiveness issue; (2)the protest allegation questioned the low bidder's competency and honesty, which attacked the bidder's responsibility rather than bid responsiveness; and (3) rejecting the bid based on the alleged false statement could affect the bidder's reputation, which required a thorough due process hearing for the bidder to defend itself. (Id at pp. 1457-1458.) Under Great West, Taylor Bus and other long-standing California law, Shimmick's protest fails to raise any issue of bid responsiveness. For this reason, alone, the protest must be denied. Shimmick apparently framed its protest as a responsiveness issue because it could not meet the much higher burden required for a responsibility protest. To bar the District from accepting Flatiron's low bid, Shimmick would have to prove the (non-existent) Calmex issue and the (insignificant-and-corrected) Penhall issue somehow prevented Flatiron from meeting the responsibility threshold set forth in Public Contract Code section 1103: "'Responsible bidder,' as used in this part, means a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract." Shimmick's allegations come nowhere near meeting that threshold. As such, Shimmick wrongly cast is meritless allegations as bid responsiveness issues.' 6. Even If Shimmick Had Raised A Bid Responsiveness Issue, It Still Could Not Force The District To Accept Its Higher Bid Price Even assuming Shimmick's allegations were all true (a flawed assumption, as detailed above) and that the allegations concerned bid responsiveness (also a flawed assumption, as detailed above), Shimmick still could not force the District to reject Flatiron's low bid. California ' Shimmick also likely sought to side-step the responsibility framework because it would require Shinanick to present its case at a due process hearing held by the District. A bid may not be rejected on responsibility grounds without such a hearing. (D.H. Williams Const.,Inc. v. Clovis Unified Sch.Dist. (2007) 146 Cal.App.4th 757,764.) An Equal Opponunlry En,pli r A HOCXTEF eampan, Build the Best. Be the Best FLATIRON public entities have the unfettered right to waive any bid responsiveness issue, so long as the issue does not result in the bidder's competitive advantage over other bidders, i.e., affected Flatiron's price. (Ghilotti Constr. Co. v. City of Richmond(1996)45 Cal.AppAth 897, 906 [Ghilotti].) Shimmick's allegations cannot be interpreted as non-waiveable bid defects. Under the District's framework, the subcontractors could be required to submit more information and—if the District did not like what it saw—the District could direct Flatiron to replace them at no additional costs to the District. This is not an advantage or benefit to Flatiron over the other bidders. If anything, it would be a detrimentladditional risk to Flatiron. There is simply no reasonable story to tell about Flatiron enjoying a competitive advantage based on Shimmick's claims. Shimmick, however, attempts to do so by advancing the notion that Flatiron, by virtue of the alleged defects, could have withdrawn its bid without forfeiting its bid bond pursuant to Public Contract Code section 5103. Shimmick advances the argument without detail or analysis, because the argument collapses once those are added. Under California law, a bid defect that affords a bidder relief from its bid under section 5103 is a non-waiveable bid defect. Section 5103 allows a bidder to withdraw its bid when: (1)the bidder makes a mistake in the bid; (2)the bidder gave notice of the mistake to the public entity within five days of bid opening; (3)the mistake made the bid materially different than the bidder intended; and (4)the "mistake was made in filling out the bid and not due to error in judgment or to carelessness in inspecting the site of the work, or in reading the plans or specifications." The case cited by Shimmick, MCM Construction, Inc. v. City and County of San Francisco, demonstrates this rule. There, the Court observed that inadvertent clerical error of failing to complete the bid form (omitting subcontract prices) could have been a section 5103 error, such that the defect could not be waived. (MCM Construction, Inc. v. City and County of San Francisco(1988) 66 Cal.App.4th 359, 376.) Even if the District accepted all of Shimmick's allegations as true, the mistakes alleged by Shimmick fall far short of the section 5103 elements. Most notably, there is no evidence Flatiron's bid was materially different than Flatiron intended. Flatiron intended to use Calmex and Penhall as subcontractors. Flatiron listed both subcontractors in its bid. Flatiron still intends to use them. Flatiron submitted the bid it intended. For this reason, alone, Flatiron would not be afforded relief from its bid under section 5103. As a result, Flatiron did not enjoy a competitive advantage, and the District could accept Flatiron's low bid. Shimmick's position is without merit. Notably, Shimmick's section 5103 argument is also inconsistent with the basic nature of its protest. Shimmick contends Flatiron, exercising poor judgment, did not take the time choose and prequalify its subcontractors. At the same time, Shimmick contends—for purposes of section 5103—that Flatiron's alleged mistakes were simply clerical errors and not"error[s] in judgment." Summarily, Shimmick's allegations do not withstand the basic scrutiny of comparing them to one another. 7. Conclusion Shimmick's protest is a "Hail Mary' attempt to obtain the Project from second position based on Flawed and conclusory allegations. The Court of Appeal has roundly rejected such protests, establishing instead a practical approach: An Equal Opporwmty Employer A HOCHTIEF Comparry Build the Best. Be the Best FLATIRON Other cases cited by Konica, supra, for the proposition that a deviating bid must be set aside despite the absence of corruption or actual adverse effect on the bidding process make it clear that the deviation must be capable of facilitating corruption or extravagance, or likely to affect the amount of bids or the response of potential bidders. These considerations must be evaluated from a practical rather than a hypothetical standpoint, with reference to the factual circumstances of the case. They must also be viewed in Ili of the public interest, rather than the private interest of a disappointed bidder. It certainly would amount to a disservice to the public if a losing bidder were to be permitted to comb through the bid proposal or license application of the low bidder after the fact, [and] cancel the low bid on minor technicalities, with the hope of securing acceptance of his, a higher bid. Such construction would be adverse to the best interests of the public and contrary to public policy. (Ghilotti, supra, 45 Cal.App.4th at p. 908-09 [quotations and citations omitted].) Shimmick is not acting "in light of the public interesP'—it just wants the District to pay its higher price. The protest is mantissa. Flatiron respectfully requests the District reject the protest and award the Project to Flatiron as the lowest responsive, responsible bidder. Flatiron also respectfully requests notice of any hearings on this matter and copies of any correspondence submitted in response to this letter. Thank you for your attention to this matter. If you have any questions please feel free to contact the undersigned at (760)916-9024 or d nel son(a),flati roncorp.com. Thank you. D�A.A. Nels� Vice President Flatiron West, Inc. An Equal Opponun,EMll A HOCHTIEF Compan, Bid Submitted By: (Name of Firm) BF-6 SAFETY DECLARATION OF CONTRACTOR The CONTRACTOR shall complete this form in its entirety and submit it to OCSD with its Bid in accordance with the Part 2— Instructions to Bidders section entitled"Bid Evaluation Process". Prior to submitting its Bid,the CONTRACTOR shall safety pre-qualify each of its Subcontractors. The CONTRACTOR shall require each of its Subcontractors to complete Items 5-9 of this form,execute and submit the form to the CONTRACTOR in accordance with the Part 2—Instructions to Bidders section entitled "Bid Evaluation Process". CONTRACTOR certifies the following (check the appropriate box): 1. Does the CONTRACTOR have any Serious, Willful, Repeat, Serious and Willful, or Failure to Abate citations of Part 1 (commencing with Section 6300)of Division 5 of the Labor Code,during the past five-year period? ❑ No ❑ Yes If Yes is checked, OCSD may require the CONTRACTOR to submit evidence of corrective actions being taken to abate further violations of Part 1 of Division 5 of the Labor Code. 2. Accident Frequency OCSD will evaluate the CONTRATOR's accident frequency factors for each calendar year submitted on the CAL/OSHA 300/300A Logs and Summaries and its three (3)year average using the Accident Frequency Factor tables as specified in the Instructions to Bidders. Prior to completing this Declaration, OCSD recommends that the CONTRACTOR calculate its accident frequency factors for each calendar year listed and its three(3)year average using the Accident Frequency Factor tables located in the Instructions to Bidders. The results of those calculations should be used to answer the following questions: OCSD requires the CONTRACTOR to have an accident frequency at or below a factor of 1.25 of the national average as published by the California Department of Industrial Relations(DIR)for the specific North American Industry Classification System (NAICS) Codes and applied to the accident history of the last three(3)years. Failure to check"Yes" in either A. or B. below will render the Bid Non-Responsive and the Bid shall be rejected. A. Does the CONTRACTOR have an accident frequency at or below a factor of 1.00 of the state average as published by the DIR for the specific NAICS Codes and applied to the accident history for the last three (3)years? ❑ Yes OR BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 1 of 7 Bid Submitted By: (Name a Firm) B. Does the CONTRACTOR have an accident frequency within a factor of 1.01 to 1.25 of the state average as published by the DIR for the specific NAICS Codes and applied to the accident history for the last three (3)years? ❑ Yes If 2.B. is Yes, OCSD may require the CONTRACTOR to submit evidence of corrective actions being taken to reduce the CONTRACTOR's accident experience if the accident frequency is within a factor of 1.01 to 1.25 of the state average as published by the DIR for its NAICS code and applied to the accident history for the last three(3)years. Such evidence shall include any or all of the following information for further consideration: • Copy of CONTRACTOR's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. 3. Workers'Compensation Experience Modification Rate OCSD requires the CONTRACTOR to have workers'compensation experience modification rate(EMR)at or below 1.25. Failure to check"Yes"in either A.or B.below will render the Bid Non-Responsive and the Bid shall be rejected. A. Is the CONTRACTOR's workers' compensation EMR at or below 1.00? ❑ Yes OR B. Is the CONTRACTOR's workers' compensation EMIR between 1.01 and 1.25? ❑ Yes If 3.B. is Yes, OCSD may require the CONTRACTOR to submit evidence of corrective actions being taken to reduce employee workplace injuries, illnesses and workers' compensation losses if the CONTRACTOR's workers'compensation EMIR is between 1.01 to 1.25. Such evidence shall include any or all of the following information for further consideration: • Copy of CONTRACTOR's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 2 of 7 Bid Submitted By: (Name of Firm) 4. Does the CONTRACTOR have injury prevention programs instituted to the extent required by Section 3201.5 or 6401.7 of the Labor Code? ❑ Yes ❑ No 5. Does any Subcontractor have any Serious, Willful, Repeat, Serious and Willful, or Failure to Abate citations of Part 1 (commencing with Section 6300)of Division 5 of the Labor Code,during the past five-year period? ❑ No ❑ Yes If Yes is checked, OCSD may require the CONTRACTOR to submit evidence of the Subcontractors corrective actions being taken to abate further violations of Part 1 of Division 5 of the Labor Code. 6. Accident Frequency of Subcontractors OCSD will evaluate Subcontractors' accident frequency factors for each calendar year submitted on the CAL/OSHA 300/300A Logs and Summaries and its three(3)year average using the Accident Frequency Factor tables located in the Instructions to Bidders. Prior to completing this Declaration,the CONTRACTOR shall require each of its Subcontractors to calculate its accident frequency factors for each calendar year listed and its three (3)year average using the Accident Frequency Factor tables located in the Instructions to Bidders.The results of those calculations should be used to answer the following questions: OCSD requires all Subcontractors to have an accident frequency at or below a factor of 1.25 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history of the last three(3)years. CONTRACTOR shall be required to substitute any Subcontractor who fails to meet the minimum accident frequency requirements. A. Do any of the CONTRACTOR's Subcontractors have an accident frequency above a factor of 1.25 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history of the last three(3)years? ❑ No ❑ Yes BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 3 of 7 Bid Submiffed By: (Name of Firm) B. Do all of the CONTRACTOR'S Subcontractors have an accident frequency at or below a factor of 1.00 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history for the last three(3)years? ❑ No ❑ Yes C. Do any of the CONTRACTOR's Subcontractors have an accident frequency within a factor of 1.01 to 1.25 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history for the last three(3)years? ❑ No ❑ Yes If 6.C. Is Yes, OCSD may require the CONTRACTOR to submit evidence from its Subcontractor(s)of corrective actions being taken to reduce the Subcontractor's accident experience if the Subcontractor's accident frequency is within a factor of 1.01 to 1.25 of the state average as published by the DIR for its NAICS code and applied to the accident history for the last three (3)years. If any Subcontractor is deemed not qualified based on the inadequacy of the corrective action taken to reduce the accident experience, CONTRACTOR shall be required to substitute any such Subcontractor. Such evidence shall include any or all of the following information for further consideration: • Copy of Subcontractor's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. 7. Workers'Compensation Experience Modification Rate of Subcontractors OCSD requires all Subcontractors to have workers'compensation experience modification rate(EMR)at or below 1.25. CONTRACTOR shall be required to substitute any Subcontractor who fails to meet the minimum experience modification factor requirements. A. Do any of the CONTRACTOR's Subcontractors have a workers' compensation EMR above 1.25? ❑ No ❑ Yes BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 4 of 7 Bid Submiffed By: (Name of Firm) B. Do all of the CONTRACTOR's Subcontractors have a workers'compensation EMR at or below 1.00? ❑ No ❑ Yes C. Do any of the CONTRACTOR's Subcontractors have a workers' compensation EMR between 1.01 and 1.25? ❑ No ❑ Yes If 7.C. Is Yes, OCSD may require that the CONTRACTOR submit evidence from its Subcontractor(s) of corrective actions being taken to reduce employee workplace injuries, illnesses and workers' compensation losses for each Subcontractor whose workers' compensation EMR is between 1.01 to 1.25. If any Subcontractor is deemed not qualified based on the inadequacy of the corrective action taken to reduce employee workplace injuries, illnesses and workers' compensation losses, CONTRACTOR shall be required to substitute any such Subcontractor. Such evidence shall include any or all of the following for further consideration: • Copy of Subcontractor's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three (3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. 8. Do the CONTRACTOR's Subcontractors have injury prevention programs instituted to the extent required by Section 3201.5 or 6401.7 of the Labor Code? ❑ Yes ❑ No 9. Accident Frequency Factor Worksheet a) Total Recordable Incident Rate Calculation Table Using the OSHA Form 300 and 300A logs and the table below,the Total Recordable Incident Rate (TRIR)is calculated for the past three(3)completed calendar years and three(3)year average in the table below. (Please see the California Department of Industrial Relations(DIR)website for more detailed information) BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 5 of 7 Bid Submifted By: (Name of Firm) 1) The number of nonfatal injuries and illnesses is determined for each year by: i. Counting the number of OSHA recordable*cases for the year listed on the OSHA Form 300(log)or, ii. Using the 300A(summary), adding the number of recordable cases entered in Column H +Column I +Column J to obtain the total injuries and illnesses. 2) The number of employee hours worked is located on the OSHA 300A Summary. 3) Using the formula provided below,the TRIR three (3)year average is calculated: Please see California Code of Regulations Title 8, Chapter 7, Subchapter 1,Article 2 for more information on determining a recordable injury and illness. Total Recordable Injury Rate Formula: #OSHA Recordable Iniuries/lllnesses x 200.000 = Company's Total Recordable Employee Hours Worked For Calendar Year Incidence Rate # OSHA Employee = Company's Total Calendar Recordable x 200,000 Hours Worked Recordable Year InjRecordabl ses for Incidence Rate Calendar Year (TRIR) 20 x 200,000 (A) 20 x 200,000 (B) 20 x 200,000 (C) 3 Year A +B + C =D D Average 3 ( ) b) Accident Frequency Factor Calculation Table 1) From the Total Recordable Incidence Rate(TRIR)calculated for each year in the table under Item a.)3.)above,the TRIR for each Calendar Year is copied into the spaces below identified as(A), (B), and(C). The 3 Year Average from the table above(D)is copied into the space below identified as (D). 2) The Bidders industry NAICS code is looked up in the DIR Nonfatal Occupational Injuries and Illness in California Summary Tables at htto://www.dir.c .ciov/OPRUnonfatal.htm for each corresponding year**. 3) The DIR Industry Average is found for each corresponding year using Table 10 and entered in the spaces below identified as(E), (F),and (G). BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 6 of 7 Bid Submitted By: (Name of Firm) 4) The formula provided below is used to calculate the DIR Industry 3 year average; the product is entered into the space identified as(H)below. 5) Using the formula provided,the 3 year Accident Frequency Factor is calculated and the product entered into the space identified as(1)below. "DIR data has an approximate 10 month publishing delay. If the current year is unavailable,please use the previous year. For example, 2010 DIR data will be used for both 2010 and 2011. Formula: Bidders TRIR = Accident Frequency Factor DIR Industry Average Calendar Year Bidder TRIR DIR Industry Average 20 (A) (E) 20 (B) (F) 20__ (C) (G) Bidder's TRIR (D) 3 Year Average DIR Industry E+F+ G =H in 3 YearAverage 3 3 Year Accident Frequency DM = 1 (I) Factor CONTRACTOR Signature Date Printed Name Printed Title Company NAICS Code BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 7 of 7 IB-11 ESCROW OF BID DOCUMENTS For projects greater than $10 million, refer to the Special Provisions entitled ESCROW OF BID DOCUMENTS. IB-12 REQUEST FOR COPIES OF BIDS Requests for copies of Bids shall be made in writing via electronic telecommunication (email)at construction(a)ocsd.com. Electronic copies of bids so requested will be provided by OCSD within three (3) Business Days of receipt of the request. IB-13 BID EVALUATION PROCESS A. General 1. The Bid evaluation period shall close upon OCSD's completion of its review and evaluation of the Bids. OCSD will give Bidders notice at the completion of Bid evaluation. 2. During the Bid evaluation period, OCSD shall determine if Bids are Responsive and Bidders are Responsible. Bids submitted in strict accordance with the IFB Documents will be deemed Responsive. A Responsible Bidder has the apparent ability to meet and successfully complete the requirements of the Contract Documents. Responsibility determination includes, but is not limited to consideration of a Bidder's trustworthiness, the quality of past performance, financial ability, and the fitness and capacity to do the proposed Work in a satisfactory manner. Bidder may be required to present further evidence that it has successfully performed similar work of comparable magnitude or provide other proof satisfactory to OCSD that it is competent to successfully perform the Work. In addition to contacting the references provided by the Bidder, OCSD may, and retains its right to contact other project owners and such other entities for which Bidder has performed or is performing work. Determination of the Bidder's responsibility will be judged based on all of the aforementioned criteria as established by information and documentation provided by the Bidder in response to instructions and specific questions in the IFB Documents, including but not limited to the Bid Submittal Forms. If the Bidder is a Joint Venture, Bidder shall be required to submit information pertaining to its joint venture partners, as specified in the Bid Submittal Forms. B. Safety 1. All Safety evaluations will be performed utilizing data that is current at the date and time of Bid Opening. 2. For purpose of evaluating the Safety record of the Bidder, if the Bidder has any Serious, Willful, Repeat, Serious and Willful or Failure to Abate citations pursuant to Part 1 of Division 5 of the Labor Code and has not taken appropriate corrective action to abate further such violations; or if the Bidder has an accident frequency factor between 1.01 and 1.25 and has not taken appropriate corrective action to reduce its accident frequency experience; or if the Bidder has a workers' C-IB-050815 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 7 of 22 compensation experience modification rate issued and published by the Workers' Compensation Insurance Rating Bureau of California (WCIRB) between 1.01 and 1.25 and has not taken appropriate corrective action to reduce its workplace injuries, illnesses and workers' compensation losses, or if the Bidder does not have injury prevention programs instituted to the extent required by Section 3201.5 or 6401.7 of the Labor Code, the Bidder may be deemed Not Responsible and its Bid rejected. OCSD may require the Bidder to submit evidence of such corrective actions as described above and as specified in the SAFETY DECLARATION OF CONTRACTOR located in the Bid Submittal Forms. 3. If the Bidder has an accident frequency factor above 1.25 or a workers' compensation experience modification rate issued and published by the Workers' Compensation Insurance Rating Bureau of California (WCIRB)above 1.25, the Bid shall be deemed Non-Responsive and the Bid rejected. 4. Failure by the two (2)apparent low Bidders to submit a completed Workers' Compensation Experience Rating Form (also referred to as an Experience Rating Worksheet)and/or the completed and signed CAUOSHA 300/300A Logs and Summaries within three (3) Business Days after the Bid Opening, or provide the reason(s)for exemption, as required, may result in their Bids being rejected as Non- Responsive. Should the two (2) apparent low Bidders fail to meet OCSD's requirements, the next apparent low Bidder(s) shall be notified to submit the said documentation within the three (3) Business Day time frame for OCSD review. 5. Accident Frequency Factor OCSD will evaluate the Bidders accident frequency factors for each calendar year submitted on the CAUOSHA 300/300A Logs and Summaries and its three (3)year average using the Accident Frequency Factor tables shown below. Prior to completing Part 5 BID SUBMITTAL FORMS, BF-6 SAFETY DECLARATION OF CONTRACTOR(Safety Declaration) located in the Bid Submittal Forms, the Bidder shall calculate its accident frequency factors for each calendar year listed and its three (3) year average using the Accident Frequency Factor tables below. The results of those calculations should be used to respond to the Accident Frequency question on the Declaration. a) Total Recordable Incident Rate Calculation Table Using the OSHA Form 300 and 300A logs and the table below, the Total Recordable Incident Rate (TRIR) is calculated for the past three (3) completed calendar years and three (3)year average in the table below. (Please see the California Department of Industrial Relations (DIR)website for more detailed information) C-IB-050815 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 8 of 22 1) The number of nonfatal injuries and illnesses is determined for each year by: i. Counting the number of OSHA recordable* cases for the year listed on the OSHA Form 300 (log)or, ii. Using the 300A (summary), adding the number of recordable cases entered in Column H + Column I + Column J to obtain the total injuries and illnesses. 2) The number of employee hours worked is located on the OSHA 300A Summary. 3) Using the formula provided below, the TRIR three (3)year average is calculated: "Please see California Code of Regulations Title 8, Chapter 7, Subchapter 1,Article 2 for more information on determining a recordable injury and illness. Total Recordable Injury Rate Formula: #OSHA Recordable Iniuries4llnesses x 200,000 = Company's Total Recordable Employee Hours Worked For Calendar Year Incidence Rate # OSHA /Employee =Company's Total Calendar Recordable x20D,000 Hours Worked Recordable Year InjRecord Recordable for Incidence Rate Calendar Year (TRIR) 20 x 200,000 (A) 20 x 200,000 (B) 20 x 200,000 (C) 3 TRIR A +B+ C =D D Year Average 3 ( ) b) Accident Freguencv Factor Calculation Table 1) From the Total Recordable Incidence Rate (TRIR) calculated for each year in the table under Item a.) 3.) above, the TRIR for each Calendar Year is copied into the spaces below identified as (A), (B), and (C). The 3 Year Average from the table above (D) is copied into the space below identified as (D). 2) The Bidder's industry NAICS code is looked up in the California Department of Industrial Relations (DIR) Nonfatal Occupational Injuries and Illnesses in California, Summary Tables at hffo://www.dir.ca.gov/OPRUnonfatal.htm for each corresponding year**. C-IB-050815 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 9 of 22 3) The DIR Industry Average is found for each corresponding year using Table 10 and entered in the spaces below identified as (E), (F), and (G). 4) The formula provided below is used to calculate the DIR Industry 3 year average; the product is entered into the space identified as (H) below. 5) Using the formula provided, the 3 year Accident Frequency Factor is calculated and the product entered into the space identified as (I) below. "DIR data has an approximate 10 month publishing delay. If the current year is unavailable, please use the previous year. For example, 2010 DIR data will be used for both 2010 and 2011. Formula: Bidder's TRIR = Accident Frequency Factor DIR Industry Average Calendar Year Bidder TRIR DIR Industry Average 20 (A) (E) 20-- (B) (F) 20__ (C) (G) Bidder's TRIR 3 Year Average (D) DIR Industry E+F+G =H (H) 3 Year Average 3 3 YearAccident Frequency DM = 1 (1) Factor 6. Subcontractors Safety Evaluation a) Bidders must safety pre-qualify their Subcontractors prior to submitting their Bids. To safety pre-qualify Subcontractors, each Subcontractor must have completed the"Safety Declaration', as provided in the Bid Submittal Forms. b) As described above in IB-10 SUBMISSION AND OPENING OF SEALED BIDS, and Part 5 BID SUBMITTAL FORMS, BF-5 SAFETY, Bidders shall submit to OCSD each Subcontractor's"Safety Declaration", completed Workers' Compensation Experience Rating Form (also referred to as an Experience Rating Worksheet), and CAL/OSHA 300/300A Logs and Summaries for each of the last three (3)completed years as follows: C-IB-050815 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 10 of 22 1) For Subcontractors listed on Part 5 BID SUBMITTAL FORMS, BF-2 LIST OF SUBCONTRACTORS and all other Subcontractors of all tiers who will commence Work within the first ninety(90) days after Award of Contract, the required documentation shall be submitted to OCSD within three (3) Business Days after Bid Opening. 2) For Subcontractors of all tiers who will commence Work at the Project site after the initial ninety (90)days of Award of Contract, the required documentation shall be submitted to OCSD not less than 30 days prior to the commencement of Work at the Project site, or such other date as may be specified by OCSD. c) OCSD will perform the safety evaluation of the successful Bidder's Subcontractor(s) pursuant to the criteria specified for Bidders in this Section. The successful Bidder shall substitute all Subcontractor(s)who fail the safety evaluation, with Subcontractor(s)who do meet the minimum safety requirements for the prices as submitted in the Schedule of Prices and at no additional cost to OCSD. C. At the completion of the Project, OCSD may conduct a CONTRACTOR performance evaluation which may be used in future assessments of determining Bidder responsibility for future contract awards with OCSD. The written evaluation may be subject to public review and copying pursuant to the California Public Records Act. IB-14 DISCREPANCIES IN BID ITEMS A. The Bidder shall furnish a price for each individual Bid item, unless otherwise stated in the Schedule of Prices. Failure to do so may render the Bid(s) incomplete and Non- Responsive and may cause its rejection. The Bid shall state the Unit Prices (when Unit pricing is required), the total amount of each Bid item, and the "Total Amount of Bid"for which the Bidder proposes to supply all labor, equipment, and materials necessary for the complete and timely performance of the Work under the Contract. If the Unit Price and the extended Total Price stated by a Bidder for any item are not in agreement, the Unit Price alone shall be considered as representing the Bidder's intention, and the extended Total Price for that item shall be corrected by OCSD to conform thereto. OCSD will correct the extended Unit Price by adjusting the extended Total Price for the affected item and correcting math errors to determine the Total Amount of Bid. B. Should any Unit Price be left blank, or out of balance, or not accurately reflect the cost, the Bid may be considered Non-Responsive. C. Should any Unit Price or total price be left blank the Bid will be considered Non- Responsive unless the blank item can be calculated from the information available (i.e., Total Price can be determined by multiplying the Unit Price by the estimated quantity). D. If any one line item is left blank, and the above situations do not apply, no attempt shall be made to reconcile the amounts. The Bid in this case shall be considered Non- Responsive. C-IB-050815 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 11 of 22 Build the Best. Be the Best. FL „=-k i ® ; Flatiron Construction Corp. 1770 La Costa Meadows Drive San Marcos,CA 92078 760 916 9100 MAIN 760 916 9101 . w flatironccra.com November 28,2016 Orange County Sanitation District Attn:Jay Kaura,Contracts Administrator 10844 Ellis Avenue Fountain Valley,CA 92708 RE: Consolidated Demolition and Utility Improvements at Plant 2 Safety Information Submittal—Penhall Company Mr. Kaura, Please find attached a letter from Penhall Company regarding their Safety Declaration information submitted to Flatiron prior to bid time. In reference to this letter, Flatiron has included a copy of Penhall's Safety Declaration submitted pre-bid and post-bid to document the change in information for Penhall. This change does not materially affect Flatiron's bid or the listing of Penhall as our subcontractor. I can be reached at(760)916-9100 with any questions you have regarding this request. Thank you. / gar Da a A. also Vice President Flatiron West,Inc. An Equal CMaftunny Employer AHOCHNEFEm ro IM Lj )ILi�'�liilil� 11/28/16 Subject:Penhall Company EMR Clarification Project:P2-110 Consolidated Demolition and Utility Improvements at Plant 2 To whom it may concern, On Friday,11/18/16, Penhall Company submitted a proposal and safety declaration to Flatiron West Inc, for the P2-110 Consolidated Demolition Project. On the safety declaration submitted on that date Penhall Company stated that our company EMIR was below 1A. This was based off of a letter from our insurance carrier(Lockton Insurance and Risk Management)which uses a"blended EMR"averaged from multiple reporting agencies. Post-bid, Penhall Company has been asked to provide documentation from WCIRB stating our experience modification. The document reported from WCIRB indicates our Experience Modification is P 1.09. Penhall Company is providing this letter as clarification as to why there Is a difference between the BF-6 document provided pre-bid compared to the BF-6 document provided post-bid. The signed BF-6 document dated 11/22/16 question 6-B should be changed to"No"to reflect Penhall Company's EMIR of 1.09. Please do not hesitate to contact me If I can provide any additional information about Penhall Company's commitment to safety. Thanks, vw ' Rick Viefhaus Regional Contracts Manager 951-369-2805 j Niefhaus@penhall.com I 7- $erring Orange County Sanitation District Anaheim 10844 Ellis Avenue,Fountain Valley,CA 92708 714.962.2411 • www.ocsd.com Brea Buena Park December 27, 2016 Via Email: ocamaura)shimmick.com Cyp - & Overnight Courier Fountain Val W. Andrew Sloane, III Fvue _ Paul C. Camaur - Shimmick Construction Co., Inc. Garden Grove 16481 Scientific Way Huntington Beach Irvine, CA 92618 lrvine SUBJECT: OCSD Response to Shimmick's Award Protest La Hap Re: P2-110, Consolidated Demolition and Utility Improvements at Plant No. 2 La Palma This letter is Orange County Sanitation District's (OSCD) response to the Bid Protest Los Alamit filed by Shimmick Construction Company, Inc. (Shimmick)dated December 12, 2016. OCSD has reviewed the protest and all necessary facts and written materials Newport Beactt. submitted and hereby denies the relief requested based on the following: Orange In summary, Shimmick submitted an "Award Protest" contesting the bid process Placentia and award of the above referenced project to Flatiron West, Inc. (Flatiron). Shimmick claims that the bid Flatiron submitted was non-responsive and should be Santa Ana rejected due to (1) misstatements pertaining to the safety qualifications of its listed subcontractors and (2)failure to comply with the Invitation for Bids (IFB) due to the Seal Beach incorrect completion of bid submittal form BF-6 Safety Declaration of Contractor. Sta Both alleged bid defects concern the Experience Modification Rate (EMR) Tustin reported for two subcontractors, Penhall Company (Penhall) and Calmex Engineering, Inc. (Calmex). Shimmick contends that Penhall and Calmex have Villa Park EMRs slightly over 1.0, and further allege that this deviation renders Flatiron's bid County of Ora non-responsive and unacceptable. After careful review of the documents submitted, these allegations lack merit. Costa M sanitary Di The subcontractor safety/EMR review and substitution framework provided in the Bid Documents include a Safety Declaration in which bidders and subcontractors Midway identify safety information, including EMRs. OCSD established a hard cutoff for Sanitary Di subcontractor EMRs, and as stated in the IFB, required subcontractors to have an Irvine Re EMR at or below 1.25. The Contractor is required to substitute and subcontractor Water Di who fails to meet the minimum EMR requirements. All of Flatiron's subcontractors vorba Li meet this eligibility requirement. If they did not, OCSD would require Flatiron to water Dist substitute the particular subcontractor. Instead, the information disclosure provision regarding subcontractor EMRs allows OCSD the option to request additional information from the bidder. Therefore, EMR of a subcontractor is not a responsiveness issue under the Bid Documents. Our Mission: 7o protect public health and the environment by Revision 013D15 providing effective wastewater collection, treatment, and recycling. �y PNI W n, Andrew Sloane, III Page 2 of 2 In addition, the allegations regarding the EMRs reported for both Penhall and Calmex are unfounded. As stated in the documents submitted by both Flatiron and Shimmick, Calmex's EMIR for calendar year 2016 is 0.69. This rate was accurate when the bid was submitted and was represented accurately to OCSD by Caimex in accordance with the requirements of the Safety Declaration. Penhall's bid-day Safety Declaration stated that Penhall had an EMIR less than 1.00. This determination was based on a blended EMR Penhall received from its workers' compensation insurer. While the Instructions to Bidders required the Contractor's EMR be supplied from the Workers' Compensation Insurance Rating Bureau of California (WCIRB), the Safety Declaration did not require subcontractor EMRs from a specific source. Despite that, following the bid opening, Penhall sought to ensure OCSD was aware of the distinction between its insurer's EMR and the EMR as estimated by the WCIRB. Penhall submitted additional information prior to the Bid Award, complied with the bid requirements and accurately identified its EMIR to OCSD. Both subcontractor EMRs were accurately reported to OCSD and meet the requirements of the IFB. OCSD has carefully reviewed the bid submitted by Flatiron in accordance with statutory requirements and OCSD's procedures, and has determined that the bid submitted by Flatiron is responsive and responsible. OCSD reviewed the Shimmick Bid Protest and arguments raised therein protesting the award of Project No. 122-110 to Flatiron West, Inc. OCSD finds that the Award Protest Statement allegations are unfounded. OCSD will proceed to recommend award of the Project No. P2.110 to the lowest responsive and responsible Bidder, Flatiron West Inc, at the Board of J3ireefa g on January 25, 2017. C// M±Du�is Contracts, Purchasing and Materials Management Division Manager MD:JSK:yp Enclosure: Flatiron's Resonse to Bid Protest dated December 20, 2016 Revision 013015 Build the Best. Be the Best. FLATIRON Flatiron West Inc. 17701a Cost Me lows Drive San Marco;CA 92078 760 916 9100 cl 760 916 9101. December 20, 2016 www.FlatlronToM.mm VIA ELECTRONIC MAIL ONLY Jay Kaura, C.P.M. Contracts Administrator Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, California 92708 construction@orsd.com Re: Response To Bid Protest Entity: Orange County Sanitation District Project: Consolidated Demolition and Utility Improvements at Plant 2 Project No.: P2-110 Low Bidder: Flatiron West, Inc. Higher BidderlProtester Shimmick Construction Dear Mr. Kal Flatiron West, Inc. is the lowest responsive bidder for the above-referenced Orange County Sanitation District project. This responds to the protest of Shimmick Construction, dated December 12, 2016. As detailed below, the protest is without merit and should be rejected. Shimmick's protest is contrary to the District's express framework, based on false allegations, and fails to raise any issue of bid responsiveness. Under California law, Shimmick has no basis to force the District to accept its higher price in place of Flatiron's low bid. The project should be awarded to Flatiron. 1. Factual Background A. Flatiron And The Proiect Flatiron West, Inc. is the Western Division of Flatiron, one of the largest and most experienced contractors in the United States. A top infrastructure contractor, Flatiron has completed large scale water projects such as the $32 million Leo J. Vander Lars Advanced Water Treatment Facility Expansion in Long Beach, California. The District published Notice Inviting Bids and bid documents ("Bid Documents")for Project No. P2-110, Consolidated Demolition and Utility Improvements at Plant 2 (the "Project"). The Project generally consists of demolishing existing older facilities and their associated equipment that are no longer in use, or are not structurally sound, or have reached the end of their useful life at wastewater treatment Plant No. 2. The Project's scope also includes construction and re-routing of utilities. The Engineer's estimate for the Project was $25,931,438.00. An Equal Opponunity Employer A HOCHTIEF Dampar, Build the Best. Be the Best. FLATIRON B. Flatiron's Low Bid And Protest The District opened bids for the Project on November 21, 2016. Flatiron submitted the low bid in the amount of$16,730,000.00, beating the Engineer's estimate by$9.2 million. One of the higher bidders, Shimmick, protested Flatiron's low bid, contending the District is required to accept Shimmick's higher bid price because of perceived deviations from the bid documents by two of Flatiron's subcontractors: Penhall Company and Calmex Engineering, Inc. Both alleged bid defects concern subcontractor Experience Modification Rate ("EMR"). Summarily, Shimmick contends that Penhall and Calmex have EMRs slightly over 1.0, somehow rendering Flatiron's bid non-responsive and unacceptable. The contention, as detailed below, is meritless. 2. Shimmick's Protest Seeks To Negate The Basic Subcontractor Safety Review Framework Established By The District Shimmick's protest is based on the false notion that subcontractor EMRs are a bid- responsiveness issue under the District's Bid Documents. In fact, the District established a subcontractor safety/EMR review and substitution framework in the Bid Documents—a framework having nothing to do with bid responsiveness or acceptability. For this reason, alone, Shimmick's protest is without merit. The Bid Documents included a Safety Declaration in which bidders and their subcontractors identified safety information about themselves, one of which was EMR. (Tab 1 [copy of Safety Declaration].) The District set a hard cutoff for subcontractor EMRs, stating, "OCSD requires all Subcontractors to have workers' compensation experience modification rate (EMR) at or below 1.25. (Tab 1, Safety Declaration, Question 7.) CONTRACTOR shall be required to substitute any Subcontractor who fails to meet the minimum experience modification factor requirements." (Tab 1, Safety Declaration, Question 7, emphasis added.) It is undisputed that all of Flatiron's subcontractors substantially exceeded the District's 1.25 eligibility requirement. If that were not the case, the District would make Flatiron substitute the subcontractor. Having a subcontractor with a disqualifying—over 1.25—EMR is not a bid responsiveness issue under the Bid Documents. Since all of Flatiron's subcontractors are well-within the 1.25 eligibility cutoff, Shimmick relies instead on an information disclosure provision that also has nothing to do with bid responsiveness. If a subcontractor has an EMR between 1.01 and 1.25, the District has the option to require a bidder to submit additional information. (Tab 1, Safety Declaration, Question 7C.) If the District requests such information and determines it to be insufficient, then the "CONTRACTOR shall be required to substitute any such subcontractor." (Ibid, emphasis added.) Again, the District's Safety Declaration established the remedy of subcontractor substitution rather than—as Shimmick contends—bid rejection. Notably, the Safety Declaration is consistent with the District's Instructions To Bidders, I13-13(13)(6)(c), which states: OCSD will perform the safety evaluation of the successful Bidder's Subcontractor(s) pursuant to the criteria specified for Bidders in this Section. The successful bidder shall substitute all Subcontractor(s) who fail the safety evaluation, with Subcontractor(s)who do meet the minimum safety requirements for the prices as submitted in the Schedule of Prices and at no additional costs to OCSD. (Tab 2, IB-13(13)(6)(c), emphasis added.) An Equal Opponumty Employer A HOCHTIEF Company Build the Best. Be the Best FLATIRON Summarily, Shimmick's protest is premised on a mischaracterization of the District's subcontractor safety review and EMIR requirements. For subcontractors with EMRs above 1.01 and less than 1.25, the District reserved the right to obtain additional safety information and to make the successful bidder replace the subcontractor if that information was insufficient. The District's subcontractor safety/EMR review has nothing to do with bid responsiveness/bid eligibility. For this reason, alone, the protest is without merit and should be rejected. 3. Shimmick's Allegation Regarding Calmex Is Simply Wrong Shimmick contends Flatiron subcontractor Calmex misrepresented its EMR on its Safety Declaration as less than 1.00. There was no misrepresentation. Calmex's EMIR is 0.69. This was accurate on bid day and was represented accurately to the District by Calmex in accordance with the requirements of the Safety Declaration. Shimmick objects to Calmex's EMIR for the upcoming 2017 calendar year, which is 1.04—still substantially lower than the District's 1.25 cutoff. Shimmick's argument is without merit for several reasons. First, the Safety Declaration sought information regarding current EMRs, not future EMRs that have yet to lake effect. As such, Calmex's declaration was accurate. Second, and more importantly, an EMIR of slightly over 1.00 gives the District the opportunity to request further information, which Calmex would supply if so requested. Under the framework in the bid documents, this is not a bid responsiveness issue. At worst, the District could direct Flatiron to substitute Calmex. 4. Shimmick's Allegation Against Penhall Is Without Merit Penhall's bid-day Safety Declaration stated that Penhall had an EMIR less than 1.00. This was based on a blended EMIR Penhall received from its workers' compensation insurer. The blended EMIR is averaged from multiple reporting agencies. Notably, neither the Instructions to Bidders nor the subcontractor section of Safety Declaration clearly required subcontractor EMRs come from a specific source. That said, the Instructions to Bidders required that prime-bidder's EMIR be supplied from the Workers' Compensation Insurance Rating Bureau of California ("WCIRB"). Consistent with that requirement, Penhall submitted (post-bid and through Flatiron) its EMIR as estimated by the WCIRB: 1.09. (Tab 3 [Penhall's letter dated November 28, 2016 with Flatiron cover letter].) While still far below the 1.25 eligibility cutoff, Penhall sought to ensure the District was aware of the distinction, such that the District could seek more information in accordance with the District's framework set forth above. For the reasons stated above, Penhall's submission of additional information has nothing to do with bid responsiveness. As such, Shimmick's protest is without merit and should be rejected. Moreover, Penhall complied with the bid requirements and was forthright with the District in clarifying its EMIR. 5. Even Absent The District's Subcontractor Substitution Framework, Shimmick Did Not Raise A Bid Responsiveness Issue Shimmick's fundamental criticisms would have nothing to do with bid responsiveness even if the District had not outlined the safety review and subcontractor substitution framework. Shimmick contends Flatiron's bid is non-responsive because Flatiron wrongly stated in its An Equal ooWnunuv EroIl A NocNnEF C nngan, Build the Best. Be the Best FLATIRON Safety Declaration that Penhall and Calmex had EMRs below 1.00. Under California law, Shimmick's allegation has nothing to do with bid responsiveness. As detailed below, Shimmick's allegation is actually an attack on Flatiron's responsibility—an attack that falls very short of the burden imposed by California law. Bid responsiveness is determined from the face of the bid. (Taylor Bus Sam, Inc. v. San Diego Bd. of Educ. (1987) 195 Cal.App.3d 1331, 1342 ["Taylor Bus'J; see also Great W. Contractors, Inc. v. Irvine Unified Sch. Dist. (2010) 187 Cal.App.4th 1425, 1454, as modified(Sept. 30, 2010), opinion supplemented on denial of rang, No. G041688, 2010 W L 3789323 ["Great West"].) Shimmick's protest is based on allegations and documentation not appearing on the face of the bid. Rather, Shimmick refers to outside investigation and documents it obtained outside of the bid protest from third parties. Since the alleged defect does not appear on the face of the bid, Shimmick has not raised an issue of responsiveness. The Court of Appeal addressed a similar protest in Great West. There, the protester—like Shimmick in this case—claimed that the low bidder had wrongly checked "no"to a bid form question, when it should have answered "yes." In Great West, the question was "Have you ever been licensed under a different name or license number?' (Id. at p. 1431.) The protester brought in outside information, showing the low bidder wrongly answered the question (one of the officers had been associated with another license). (Id. at p. 1432.) Acting on the protest, the public entity rejected the low bid as non-responsive. The Court of Appeal overturned the rejection in a scathing opinion, concluding the alleged inaccurate statement in the bid did not raise any issue of responsiveness. In overturning the wrongful bid rejection, the Court noted: (1)there was no defect apparent from the face of the bid, so as to create a responsiveness issue; (2)the protest allegation questioned the low bidder's competency and honesty, which attacked the bidder's responsibility rather than bid responsiveness; and (3) rejecting the bid based on the alleged false statement could affect the bidder's reputation, which required a thorough due process hearing for the bidder to defend itself. (Id at pp. 1457-1458.) Under Great West, Taylor Bus and other long-standing California law, Shimmick's protest fails to raise any issue of bid responsiveness. For this reason, alone, the protest must be denied. Shimmick apparently framed its protest as a responsiveness issue because it could not meet the much higher burden required for a responsibility protest. To bar the District from accepting Flatiron's low bid, Shimmick would have to prove the (non-existent) Calmex issue and the (insignificant-and-corrected) Penhall issue somehow prevented Flatiron from meeting the responsibility threshold set forth in Public Contract Code section 1103: "'Responsible bidder,' as used in this part, means a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract." Shimmick's allegations come nowhere near meeting that threshold. As such, Shimmick wrongly cast is meritless allegations as bid responsiveness issues.' 6. Even If Shimmick Had Raised A Bid Responsiveness Issue, It Still Could Not Force The District To Accept Its Higher Bid Price Even assuming Shimmick's allegations were all true (a flawed assumption, as detailed above) and that the allegations concerned bid responsiveness (also a flawed assumption, as detailed above), Shimmick still could not force the District to reject Flatiron's low bid. California ' Shimmick also likely sought to side-step the responsibility framework because it would require Shinanick to present its case at a due process hearing held by the District. A bid may not be rejected on responsibility grounds without such a hearing. (D.H. Williams Const.,Inc. v. Clovis Unified Sch.Dist. (2007) 146 Cal.App.4th 757,764.) An Equal Opponunlry En,pli r A HOCXTEF eampan, Build the Best. Be the Best FLATIRON public entities have the unfettered right to waive any bid responsiveness issue, so long as the issue does not result in the bidder's competitive advantage over other bidders, i.e., affected Flatiron's price. (Ghilotti Constr. Co. v. City of Richmond(1996)45 Cal.AppAth 897, 906 [Ghilotti].) Shimmick's allegations cannot be interpreted as non-waiveable bid defects. Under the District's framework, the subcontractors could be required to submit more information and—if the District did not like what it saw—the District could direct Flatiron to replace them at no additional costs to the District. This is not an advantage or benefit to Flatiron over the other bidders. If anything, it would be a detrimentladditional risk to Flatiron. There is simply no reasonable story to tell about Flatiron enjoying a competitive advantage based on Shimmick's claims. Shimmick, however, attempts to do so by advancing the notion that Flatiron, by virtue of the alleged defects, could have withdrawn its bid without forfeiting its bid bond pursuant to Public Contract Code section 5103. Shimmick advances the argument without detail or analysis, because the argument collapses once those are added. Under California law, a bid defect that affords a bidder relief from its bid under section 5103 is a non-waiveable bid defect. Section 5103 allows a bidder to withdraw its bid when: (1)the bidder makes a mistake in the bid; (2)the bidder gave notice of the mistake to the public entity within five days of bid opening; (3)the mistake made the bid materially different than the bidder intended; and (4)the "mistake was made in filling out the bid and not due to error in judgment or to carelessness in inspecting the site of the work, or in reading the plans or specifications." The case cited by Shimmick, MCM Construction, Inc. v. City and County of San Francisco, demonstrates this rule. There, the Court observed that inadvertent clerical error of failing to complete the bid form (omitting subcontract prices) could have been a section 5103 error, such that the defect could not be waived. (MCM Construction, Inc. v. City and County of San Francisco(1988) 66 Cal.App.4th 359, 376.) Even if the District accepted all of Shimmick's allegations as true, the mistakes alleged by Shimmick fall far short of the section 5103 elements. Most notably, there is no evidence Flatiron's bid was materially different than Flatiron intended. Flatiron intended to use Calmex and Penhall as subcontractors. Flatiron listed both subcontractors in its bid. Flatiron still intends to use them. Flatiron submitted the bid it intended. For this reason, alone, Flatiron would not be afforded relief from its bid under section 5103. As a result, Flatiron did not enjoy a competitive advantage, and the District could accept Flatiron's low bid. Shimmick's position is without merit. Notably, Shimmick's section 5103 argument is also inconsistent with the basic nature of its protest. Shimmick contends Flatiron, exercising poor judgment, did not take the time choose and prequalify its subcontractors. At the same time, Shimmick contends—for purposes of section 5103—that Flatiron's alleged mistakes were simply clerical errors and not"error[s] in judgment." Summarily, Shimmick's allegations do not withstand the basic scrutiny of comparing them to one another. 7. Conclusion Shimmick's protest is a "Hail Mary' attempt to obtain the Project from second position based on Flawed and conclusory allegations. The Court of Appeal has roundly rejected such protests, establishing instead a practical approach: An Equal Opporwmty Employer A HOCHTIEF Comparry Build the Best. Be the Best FLATIRON Other cases cited by Konica, supra, for the proposition that a deviating bid must be set aside despite the absence of corruption or actual adverse effect on the bidding process make it clear that the deviation must be capable of facilitating corruption or extravagance, or likely to affect the amount of bids or the response of potential bidders. These considerations must be evaluated from a practical rather than a hypothetical standpoint, with reference to the factual circumstances of the case. They must also be viewed in Ili of the public interest, rather than the private interest of a disappointed bidder. It certainly would amount to a disservice to the public if a losing bidder were to be permitted to comb through the bid proposal or license application of the low bidder after the fact, [and] cancel the low bid on minor technicalities, with the hope of securing acceptance of his, a higher bid. Such construction would be adverse to the best interests of the public and contrary to public policy. (Ghilotti, supra, 45 Cal.App.4th at p. 908-09 [quotations and citations omitted].) Shimmick is not acting "in light of the public interesP'—it just wants the District to pay its higher price. The protest is mantissa. Flatiron respectfully requests the District reject the protest and award the Project to Flatiron as the lowest responsive, responsible bidder. Flatiron also respectfully requests notice of any hearings on this matter and copies of any correspondence submitted in response to this letter. Thank you for your attention to this matter. If you have any questions please feel free to contact the undersigned at (760)916-9024 or d nel son(a),flati roncorp.com. Thank you. D�A.A. Nels� Vice President Flatiron West, Inc. An Equal Opponun,EMll A HOCHTIEF Compan, Bid Submitted By: (Name of Firm) BF-6 SAFETY DECLARATION OF CONTRACTOR The CONTRACTOR shall complete this form in its entirety and submit it to OCSD with its Bid in accordance with the Part 2— Instructions to Bidders section entitled"Bid Evaluation Process". Prior to submitting its Bid,the CONTRACTOR shall safety pre-qualify each of its Subcontractors. The CONTRACTOR shall require each of its Subcontractors to complete Items 5-9 of this form,execute and submit the form to the CONTRACTOR in accordance with the Part 2—Instructions to Bidders section entitled "Bid Evaluation Process". CONTRACTOR certifies the following (check the appropriate box): 1. Does the CONTRACTOR have any Serious, Willful, Repeat, Serious and Willful, or Failure to Abate citations of Part 1 (commencing with Section 6300)of Division 5 of the Labor Code,during the past five-year period? ❑ No ❑ Yes If Yes is checked, OCSD may require the CONTRACTOR to submit evidence of corrective actions being taken to abate further violations of Part 1 of Division 5 of the Labor Code. 2. Accident Frequency OCSD will evaluate the CONTRATOR's accident frequency factors for each calendar year submitted on the CAL/OSHA 300/300A Logs and Summaries and its three (3)year average using the Accident Frequency Factor tables as specified in the Instructions to Bidders. Prior to completing this Declaration, OCSD recommends that the CONTRACTOR calculate its accident frequency factors for each calendar year listed and its three(3)year average using the Accident Frequency Factor tables located in the Instructions to Bidders. The results of those calculations should be used to answer the following questions: OCSD requires the CONTRACTOR to have an accident frequency at or below a factor of 1.25 of the national average as published by the California Department of Industrial Relations(DIR)for the specific North American Industry Classification System (NAICS) Codes and applied to the accident history of the last three(3)years. Failure to check"Yes" in either A. or B. below will render the Bid Non-Responsive and the Bid shall be rejected. A. Does the CONTRACTOR have an accident frequency at or below a factor of 1.00 of the state average as published by the DIR for the specific NAICS Codes and applied to the accident history for the last three (3)years? ❑ Yes OR BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 1 of 7 Bid Submitted By: (Name a Firm) B. Does the CONTRACTOR have an accident frequency within a factor of 1.01 to 1.25 of the state average as published by the DIR for the specific NAICS Codes and applied to the accident history for the last three (3)years? ❑ Yes If 2.B. is Yes, OCSD may require the CONTRACTOR to submit evidence of corrective actions being taken to reduce the CONTRACTOR's accident experience if the accident frequency is within a factor of 1.01 to 1.25 of the state average as published by the DIR for its NAICS code and applied to the accident history for the last three(3)years. Such evidence shall include any or all of the following information for further consideration: • Copy of CONTRACTOR's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. 3. Workers'Compensation Experience Modification Rate OCSD requires the CONTRACTOR to have workers'compensation experience modification rate(EMR)at or below 1.25. Failure to check"Yes"in either A.or B.below will render the Bid Non-Responsive and the Bid shall be rejected. A. Is the CONTRACTOR's workers' compensation EMR at or below 1.00? ❑ Yes OR B. Is the CONTRACTOR's workers' compensation EMIR between 1.01 and 1.25? ❑ Yes If 3.B. is Yes, OCSD may require the CONTRACTOR to submit evidence of corrective actions being taken to reduce employee workplace injuries, illnesses and workers' compensation losses if the CONTRACTOR's workers'compensation EMIR is between 1.01 to 1.25. Such evidence shall include any or all of the following information for further consideration: • Copy of CONTRACTOR's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 2 of 7 Bid Submitted By: (Name of Firm) 4. Does the CONTRACTOR have injury prevention programs instituted to the extent required by Section 3201.5 or 6401.7 of the Labor Code? ❑ Yes ❑ No 5. Does any Subcontractor have any Serious, Willful, Repeat, Serious and Willful, or Failure to Abate citations of Part 1 (commencing with Section 6300)of Division 5 of the Labor Code,during the past five-year period? ❑ No ❑ Yes If Yes is checked, OCSD may require the CONTRACTOR to submit evidence of the Subcontractors corrective actions being taken to abate further violations of Part 1 of Division 5 of the Labor Code. 6. Accident Frequency of Subcontractors OCSD will evaluate Subcontractors' accident frequency factors for each calendar year submitted on the CAL/OSHA 300/300A Logs and Summaries and its three(3)year average using the Accident Frequency Factor tables located in the Instructions to Bidders. Prior to completing this Declaration,the CONTRACTOR shall require each of its Subcontractors to calculate its accident frequency factors for each calendar year listed and its three (3)year average using the Accident Frequency Factor tables located in the Instructions to Bidders.The results of those calculations should be used to answer the following questions: OCSD requires all Subcontractors to have an accident frequency at or below a factor of 1.25 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history of the last three(3)years. CONTRACTOR shall be required to substitute any Subcontractor who fails to meet the minimum accident frequency requirements. A. Do any of the CONTRACTOR's Subcontractors have an accident frequency above a factor of 1.25 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history of the last three(3)years? ❑ No ❑ Yes BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 3 of 7 Bid Submiffed By: (Name of Firm) B. Do all of the CONTRACTOR'S Subcontractors have an accident frequency at or below a factor of 1.00 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history for the last three(3)years? ❑ No ❑ Yes C. Do any of the CONTRACTOR's Subcontractors have an accident frequency within a factor of 1.01 to 1.25 of the state average as published by the DIR for the specific NAICS Code and applied to the accident history for the last three(3)years? ❑ No ❑ Yes If 6.C. Is Yes, OCSD may require the CONTRACTOR to submit evidence from its Subcontractor(s)of corrective actions being taken to reduce the Subcontractor's accident experience if the Subcontractor's accident frequency is within a factor of 1.01 to 1.25 of the state average as published by the DIR for its NAICS code and applied to the accident history for the last three (3)years. If any Subcontractor is deemed not qualified based on the inadequacy of the corrective action taken to reduce the accident experience, CONTRACTOR shall be required to substitute any such Subcontractor. Such evidence shall include any or all of the following information for further consideration: • Copy of Subcontractor's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three(3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. 7. Workers'Compensation Experience Modification Rate of Subcontractors OCSD requires all Subcontractors to have workers'compensation experience modification rate(EMR)at or below 1.25. CONTRACTOR shall be required to substitute any Subcontractor who fails to meet the minimum experience modification factor requirements. A. Do any of the CONTRACTOR's Subcontractors have a workers' compensation EMR above 1.25? ❑ No ❑ Yes BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 4 of 7 Bid Submiffed By: (Name of Firm) B. Do all of the CONTRACTOR's Subcontractors have a workers'compensation EMR at or below 1.00? ❑ No ❑ Yes C. Do any of the CONTRACTOR's Subcontractors have a workers' compensation EMR between 1.01 and 1.25? ❑ No ❑ Yes If 7.C. Is Yes, OCSD may require that the CONTRACTOR submit evidence from its Subcontractor(s) of corrective actions being taken to reduce employee workplace injuries, illnesses and workers' compensation losses for each Subcontractor whose workers' compensation EMR is between 1.01 to 1.25. If any Subcontractor is deemed not qualified based on the inadequacy of the corrective action taken to reduce employee workplace injuries, illnesses and workers' compensation losses, CONTRACTOR shall be required to substitute any such Subcontractor. Such evidence shall include any or all of the following for further consideration: • Copy of Subcontractor's IIPP outlining any updates/revisions implemented to reduce future occurrences. • Any training taken place in the last three (3)years to prevent future occurrences. • Any program/policy updates within the three-year period to address their injury rates. 8. Do the CONTRACTOR's Subcontractors have injury prevention programs instituted to the extent required by Section 3201.5 or 6401.7 of the Labor Code? ❑ Yes ❑ No 9. Accident Frequency Factor Worksheet a) Total Recordable Incident Rate Calculation Table Using the OSHA Form 300 and 300A logs and the table below,the Total Recordable Incident Rate (TRIR)is calculated for the past three(3)completed calendar years and three(3)year average in the table below. (Please see the California Department of Industrial Relations(DIR)website for more detailed information) BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 5 of 7 Bid Submifted By: (Name of Firm) 1) The number of nonfatal injuries and illnesses is determined for each year by: i. Counting the number of OSHA recordable*cases for the year listed on the OSHA Form 300(log)or, ii. Using the 300A(summary), adding the number of recordable cases entered in Column H +Column I +Column J to obtain the total injuries and illnesses. 2) The number of employee hours worked is located on the OSHA 300A Summary. 3) Using the formula provided below,the TRIR three (3)year average is calculated: Please see California Code of Regulations Title 8, Chapter 7, Subchapter 1,Article 2 for more information on determining a recordable injury and illness. Total Recordable Injury Rate Formula: #OSHA Recordable Iniuries/lllnesses x 200.000 = Company's Total Recordable Employee Hours Worked For Calendar Year Incidence Rate # OSHA Employee = Company's Total Calendar Recordable x 200,000 Hours Worked Recordable Year InjRecordabl ses for Incidence Rate Calendar Year (TRIR) 20 x 200,000 (A) 20 x 200,000 (B) 20 x 200,000 (C) 3 Year A +B + C =D D Average 3 ( ) b) Accident Frequency Factor Calculation Table 1) From the Total Recordable Incidence Rate(TRIR)calculated for each year in the table under Item a.)3.)above,the TRIR for each Calendar Year is copied into the spaces below identified as(A), (B), and(C). The 3 Year Average from the table above(D)is copied into the space below identified as (D). 2) The Bidders industry NAICS code is looked up in the DIR Nonfatal Occupational Injuries and Illness in California Summary Tables at htto://www.dir.c .ciov/OPRUnonfatal.htm for each corresponding year**. 3) The DIR Industry Average is found for each corresponding year using Table 10 and entered in the spaces below identified as(E), (F),and (G). BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 6 of 7 Bid Submitted By: (Name of Firm) 4) The formula provided below is used to calculate the DIR Industry 3 year average; the product is entered into the space identified as(H)below. 5) Using the formula provided,the 3 year Accident Frequency Factor is calculated and the product entered into the space identified as(1)below. "DIR data has an approximate 10 month publishing delay. If the current year is unavailable,please use the previous year. For example, 2010 DIR data will be used for both 2010 and 2011. Formula: Bidders TRIR = Accident Frequency Factor DIR Industry Average Calendar Year Bidder TRIR DIR Industry Average 20 (A) (E) 20 (B) (F) 20__ (C) (G) Bidder's TRIR (D) 3 Year Average DIR Industry E+F+ G =H in 3 YearAverage 3 3 Year Accident Frequency DM = 1 (I) Factor CONTRACTOR Signature Date Printed Name Printed Title Company NAICS Code BF-6 SAFETY DECLARATION OF CONTRACTOR C-BF-021115 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 7 of 7 IB-11 ESCROW OF BID DOCUMENTS For projects greater than $10 million, refer to the Special Provisions entitled ESCROW OF BID DOCUMENTS. IB-12 REQUEST FOR COPIES OF BIDS Requests for copies of Bids shall be made in writing via electronic telecommunication (email)at construction(a)ocsd.com. Electronic copies of bids so requested will be provided by OCSD within three (3) Business Days of receipt of the request. IB-13 BID EVALUATION PROCESS A. General 1. The Bid evaluation period shall close upon OCSD's completion of its review and evaluation of the Bids. OCSD will give Bidders notice at the completion of Bid evaluation. 2. During the Bid evaluation period, OCSD shall determine if Bids are Responsive and Bidders are Responsible. Bids submitted in strict accordance with the IFB Documents will be deemed Responsive. A Responsible Bidder has the apparent ability to meet and successfully complete the requirements of the Contract Documents. Responsibility determination includes, but is not limited to consideration of a Bidder's trustworthiness, the quality of past performance, financial ability, and the fitness and capacity to do the proposed Work in a satisfactory manner. Bidder may be required to present further evidence that it has successfully performed similar work of comparable magnitude or provide other proof satisfactory to OCSD that it is competent to successfully perform the Work. In addition to contacting the references provided by the Bidder, OCSD may, and retains its right to contact other project owners and such other entities for which Bidder has performed or is performing work. Determination of the Bidder's responsibility will be judged based on all of the aforementioned criteria as established by information and documentation provided by the Bidder in response to instructions and specific questions in the IFB Documents, including but not limited to the Bid Submittal Forms. If the Bidder is a Joint Venture, Bidder shall be required to submit information pertaining to its joint venture partners, as specified in the Bid Submittal Forms. B. Safety 1. All Safety evaluations will be performed utilizing data that is current at the date and time of Bid Opening. 2. For purpose of evaluating the Safety record of the Bidder, if the Bidder has any Serious, Willful, Repeat, Serious and Willful or Failure to Abate citations pursuant to Part 1 of Division 5 of the Labor Code and has not taken appropriate corrective action to abate further such violations; or if the Bidder has an accident frequency factor between 1.01 and 1.25 and has not taken appropriate corrective action to reduce its accident frequency experience; or if the Bidder has a workers' C-IB-050815 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 7 of 22 compensation experience modification rate issued and published by the Workers' Compensation Insurance Rating Bureau of California (WCIRB) between 1.01 and 1.25 and has not taken appropriate corrective action to reduce its workplace injuries, illnesses and workers' compensation losses, or if the Bidder does not have injury prevention programs instituted to the extent required by Section 3201.5 or 6401.7 of the Labor Code, the Bidder may be deemed Not Responsible and its Bid rejected. OCSD may require the Bidder to submit evidence of such corrective actions as described above and as specified in the SAFETY DECLARATION OF CONTRACTOR located in the Bid Submittal Forms. 3. If the Bidder has an accident frequency factor above 1.25 or a workers' compensation experience modification rate issued and published by the Workers' Compensation Insurance Rating Bureau of California (WCIRB)above 1.25, the Bid shall be deemed Non-Responsive and the Bid rejected. 4. Failure by the two (2)apparent low Bidders to submit a completed Workers' Compensation Experience Rating Form (also referred to as an Experience Rating Worksheet)and/or the completed and signed CAUOSHA 300/300A Logs and Summaries within three (3) Business Days after the Bid Opening, or provide the reason(s)for exemption, as required, may result in their Bids being rejected as Non- Responsive. Should the two (2) apparent low Bidders fail to meet OCSD's requirements, the next apparent low Bidder(s) shall be notified to submit the said documentation within the three (3) Business Day time frame for OCSD review. 5. Accident Frequency Factor OCSD will evaluate the Bidders accident frequency factors for each calendar year submitted on the CAUOSHA 300/300A Logs and Summaries and its three (3)year average using the Accident Frequency Factor tables shown below. Prior to completing Part 5 BID SUBMITTAL FORMS, BF-6 SAFETY DECLARATION OF CONTRACTOR(Safety Declaration) located in the Bid Submittal Forms, the Bidder shall calculate its accident frequency factors for each calendar year listed and its three (3) year average using the Accident Frequency Factor tables below. The results of those calculations should be used to respond to the Accident Frequency question on the Declaration. a) Total Recordable Incident Rate Calculation Table Using the OSHA Form 300 and 300A logs and the table below, the Total Recordable Incident Rate (TRIR) is calculated for the past three (3) completed calendar years and three (3)year average in the table below. (Please see the California Department of Industrial Relations (DIR)website for more detailed information) C-IB-050815 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 8 of 22 1) The number of nonfatal injuries and illnesses is determined for each year by: i. Counting the number of OSHA recordable* cases for the year listed on the OSHA Form 300 (log)or, ii. Using the 300A (summary), adding the number of recordable cases entered in Column H + Column I + Column J to obtain the total injuries and illnesses. 2) The number of employee hours worked is located on the OSHA 300A Summary. 3) Using the formula provided below, the TRIR three (3)year average is calculated: "Please see California Code of Regulations Title 8, Chapter 7, Subchapter 1,Article 2 for more information on determining a recordable injury and illness. Total Recordable Injury Rate Formula: #OSHA Recordable Iniuries4llnesses x 200,000 = Company's Total Recordable Employee Hours Worked For Calendar Year Incidence Rate # OSHA /Employee =Company's Total Calendar Recordable x20D,000 Hours Worked Recordable Year InjRecord Recordable for Incidence Rate Calendar Year (TRIR) 20 x 200,000 (A) 20 x 200,000 (B) 20 x 200,000 (C) 3 TRIR A +B+ C =D D Year Average 3 ( ) b) Accident Freguencv Factor Calculation Table 1) From the Total Recordable Incidence Rate (TRIR) calculated for each year in the table under Item a.) 3.) above, the TRIR for each Calendar Year is copied into the spaces below identified as (A), (B), and (C). The 3 Year Average from the table above (D) is copied into the space below identified as (D). 2) The Bidder's industry NAICS code is looked up in the California Department of Industrial Relations (DIR) Nonfatal Occupational Injuries and Illnesses in California, Summary Tables at hffo://www.dir.ca.gov/OPRUnonfatal.htm for each corresponding year**. C-IB-050815 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 9 of 22 3) The DIR Industry Average is found for each corresponding year using Table 10 and entered in the spaces below identified as (E), (F), and (G). 4) The formula provided below is used to calculate the DIR Industry 3 year average; the product is entered into the space identified as (H) below. 5) Using the formula provided, the 3 year Accident Frequency Factor is calculated and the product entered into the space identified as (I) below. "DIR data has an approximate 10 month publishing delay. If the current year is unavailable, please use the previous year. For example, 2010 DIR data will be used for both 2010 and 2011. Formula: Bidder's TRIR = Accident Frequency Factor DIR Industry Average Calendar Year Bidder TRIR DIR Industry Average 20 (A) (E) 20-- (B) (F) 20__ (C) (G) Bidder's TRIR 3 Year Average (D) DIR Industry E+F+G =H (H) 3 Year Average 3 3 YearAccident Frequency DM = 1 (1) Factor 6. Subcontractors Safety Evaluation a) Bidders must safety pre-qualify their Subcontractors prior to submitting their Bids. To safety pre-qualify Subcontractors, each Subcontractor must have completed the"Safety Declaration', as provided in the Bid Submittal Forms. b) As described above in IB-10 SUBMISSION AND OPENING OF SEALED BIDS, and Part 5 BID SUBMITTAL FORMS, BF-5 SAFETY, Bidders shall submit to OCSD each Subcontractor's"Safety Declaration", completed Workers' Compensation Experience Rating Form (also referred to as an Experience Rating Worksheet), and CAL/OSHA 300/300A Logs and Summaries for each of the last three (3)completed years as follows: C-IB-050815 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 10 of 22 1) For Subcontractors listed on Part 5 BID SUBMITTAL FORMS, BF-2 LIST OF SUBCONTRACTORS and all other Subcontractors of all tiers who will commence Work within the first ninety(90) days after Award of Contract, the required documentation shall be submitted to OCSD within three (3) Business Days after Bid Opening. 2) For Subcontractors of all tiers who will commence Work at the Project site after the initial ninety (90)days of Award of Contract, the required documentation shall be submitted to OCSD not less than 30 days prior to the commencement of Work at the Project site, or such other date as may be specified by OCSD. c) OCSD will perform the safety evaluation of the successful Bidder's Subcontractor(s) pursuant to the criteria specified for Bidders in this Section. The successful Bidder shall substitute all Subcontractor(s)who fail the safety evaluation, with Subcontractor(s)who do meet the minimum safety requirements for the prices as submitted in the Schedule of Prices and at no additional cost to OCSD. C. At the completion of the Project, OCSD may conduct a CONTRACTOR performance evaluation which may be used in future assessments of determining Bidder responsibility for future contract awards with OCSD. The written evaluation may be subject to public review and copying pursuant to the California Public Records Act. IB-14 DISCREPANCIES IN BID ITEMS A. The Bidder shall furnish a price for each individual Bid item, unless otherwise stated in the Schedule of Prices. Failure to do so may render the Bid(s) incomplete and Non- Responsive and may cause its rejection. The Bid shall state the Unit Prices (when Unit pricing is required), the total amount of each Bid item, and the "Total Amount of Bid"for which the Bidder proposes to supply all labor, equipment, and materials necessary for the complete and timely performance of the Work under the Contract. If the Unit Price and the extended Total Price stated by a Bidder for any item are not in agreement, the Unit Price alone shall be considered as representing the Bidder's intention, and the extended Total Price for that item shall be corrected by OCSD to conform thereto. OCSD will correct the extended Unit Price by adjusting the extended Total Price for the affected item and correcting math errors to determine the Total Amount of Bid. B. Should any Unit Price be left blank, or out of balance, or not accurately reflect the cost, the Bid may be considered Non-Responsive. C. Should any Unit Price or total price be left blank the Bid will be considered Non- Responsive unless the blank item can be calculated from the information available (i.e., Total Price can be determined by multiplying the Unit Price by the estimated quantity). D. If any one line item is left blank, and the above situations do not apply, no attempt shall be made to reconcile the amounts. The Bid in this case shall be considered Non- Responsive. C-IB-050815 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 11 of 22 Build the Best. Be the Best. FL „=-k i ® ; Flatiron Construction Corp. 1770 La Costa Meadows Drive San Marcos,CA 92078 760 916 9100 MAIN 760 916 9101 . w flatironccra.com November 28,2016 Orange County Sanitation District Attn:Jay Kaura,Contracts Administrator 10844 Ellis Avenue Fountain Valley,CA 92708 RE: Consolidated Demolition and Utility Improvements at Plant 2 Safety Information Submittal—Penhall Company Mr. Kaura, Please find attached a letter from Penhall Company regarding their Safety Declaration information submitted to Flatiron prior to bid time. In reference to this letter, Flatiron has included a copy of Penhall's Safety Declaration submitted pre-bid and post-bid to document the change in information for Penhall. This change does not materially affect Flatiron's bid or the listing of Penhall as our subcontractor. I can be reached at(760)916-9100 with any questions you have regarding this request. Thank you. / gar Da a A. also Vice President Flatiron West,Inc. An Equal CMaftunny Employer AHOCHNEFEm ro IM Lj )ILi�'�liilil� 11/28/16 Subject:Penhall Company EMR Clarification Project:P2-110 Consolidated Demolition and Utility Improvements at Plant 2 To whom it may concern, On Friday,11/18/16, Penhall Company submitted a proposal and safety declaration to Flatiron West Inc, for the P2-110 Consolidated Demolition Project. On the safety declaration submitted on that date Penhall Company stated that our company EMIR was below 1A. This was based off of a letter from our insurance carrier(Lockton Insurance and Risk Management)which uses a"blended EMR"averaged from multiple reporting agencies. Post-bid, Penhall Company has been asked to provide documentation from WCIRB stating our experience modification. The document reported from WCIRB indicates our Experience Modification is P 1.09. Penhall Company is providing this letter as clarification as to why there Is a difference between the BF-6 document provided pre-bid compared to the BF-6 document provided post-bid. The signed BF-6 document dated 11/22/16 question 6-B should be changed to"No"to reflect Penhall Company's EMIR of 1.09. Please do not hesitate to contact me If I can provide any additional information about Penhall Company's commitment to safety. Thanks, vw ' Rick Viefhaus Regional Contracts Manager 951-369-2805 j Niefhaus@penhall.com I Phon m khin Vai From: Construction Sent: Tuesday, December 27,2016 11:40 AM To: 'pcamaur@shimmi&com' Subject: P2-110 OCSD Response to Shimmick's Bid Protest Attachments: P2-110 OCSD Response to Shimmick's Bid Protest.pdf Importance: High Bcc; Kaura,Jay Attention:W.Andrew Sloane, III & Paul C. Camaur Attached is OCSD's response letter in reference to Shimmick's Bid Protest.The original letter was overnight mailed to your attention today. Orange County Sanitation District Contracts,Purchasing&Material Management Division www.ocsd.com 1 Phonomekhin,Yai From: Paul Camaur <pcamaur®shimmick.com> To: Construction Sent: Tuesday, December 27,2016 11:49 AM Subject: Read:P2-110 OCSD Response to Shimmick's Bid Protest Yew message To: Subject:P2-110 OCSD Response to Shimmick's Bid Protest Sent:Tuesday,December 27,2016 11:48:51 AM(UTC-08:00)Pacific Time(US&Canada) was read on Tuesday,December 27,2016 11:48:45 AM(UTC-08:00)Pacific Time(US&Canada). 1 Page 1 of 1 'j\741 800-322-5555 www.gSO.com Ship From Tracking #: 534486764 PDS .ORANGE COUNTY SANITATION DISTRICT YAI PHONGMEKHIN 10844 ELLIS AVE FOUNTAIN VALLEY, CA 92708 III II I IIIIIIII IIIIIIIIIIII�III 'Ship ToCAMAUR O �� e SHIMMICK CONSTRUCTION COMPANY PAUL 164815CIENTIFIC WAY IRVINE, CA 92618 IRVINE COD: $0.00 Weight: 0 lb(s) Reference: D926.37A P2-110 TO PROTEST Delivery Instructions: VI IIIIII�IIIIIIIIIIIII�IIIIIIIIIIIIII�I Signature Type: REQUIRED 60815436 wlnt Date:1y27/3016 mn AMI LABEL INSTRUCTIONS: Do not copy or reprint this label for additional shipments-each package must have a unique barcode. Use the"Print Label' button on this page to print the shipping label on a laser or inkjet printer. Securely attach this label to your package, do not cover the barcode. https://app.gso.com/Shipping/ShippingLabel 12/27/2016 TrackkShipment Result Details Page 1 of 1 'GSO So, gP Os 8003EE5555 YAIPHONGMEKHIN My mflk ".,.g T..R Re,"n9 ""V,N ua AM Track Shipment Result Tactlng: 5 465759 DelNery Ell Oellvered SMppel From Shipped To C pany: ORANGE COUNIYSANRATION DISTRICT Canpany: SHIMMICK CONSnWCION COMPANY AgkI.; .0..LL AVE AEErtla: I64BI Sa EmnnC WAY i0UmA1N VALLEY,CA 92MB IRVINE,CA 92618 SeM By: YAI PHONGMEKHIN Attmtlon: PAR...Me 6NIpmaM Dell -D OMe: II- ".. seM.: P. A.ARA : Val/PE-110 Respmse b P Del can: 12-28-2011 WeI9M(Ipa): 1 flgnrture Type: RecuRed Del Tim: 10:26 AM COD V.lVe: 0 SwIll InS[NttI.I: sne"By: A.BeIXa Dec.Value: 0 New sgn Image Truss DMaIN j Bneemnn Nate j -2)-201611:21 PM ARRIVAL SCAN DEINEAY SCNEO FOR MM2016 � -26-2016):22AN ON RITE FOR DELIVERY OID2016 D...AM SHIPMENT DEWERED — I 0 19 9 5-2016 Wftn Stale OV IgM DRANry Seevee Im. SWaoIDe Mvery Pollty TemsdUw see Map https://app.gso.com/Cracking/TrackShipment 12/28/2016 Serving: Orange County Sanitation District Anaheim 10844 Ellis Avenue,Fountain Valley,CA 92708 714.962.2411 • www.ocsd.com Brea Buena Park December 5, 2016 Via Email: dnelson@flatironcorp.com cypress & U.S. Mail Fountain Valley Dale A. Nelson Fullerton Flatiron West, Inc. 1770 La Costa Meadows Drive Garden Grove San Marcos, CA 92078 Huntington Beach Irvine SUBJECT: AWARD RECOMMENDATION NOTICE Re: P2-110, Consolidated Demolition and Utility Improvements at Plant No. 2 La Habra La Palma The Orange County Sanitation District (OCSD) completed its evaluation of the Bids Los Alamitos submitted in response to the Invitation for Bids for the above-referenced Project. The lowest responsive, responsible Bidder is Flatiron West, Inc. Newport Beach The award recommendation will be forwarded to OCSD's Board of Directors for Orange Contract award. Placentia The Board of Directors Meeting is scheduled for: Santa Ana Date: January 25, 2017 Seal Beach Time: 6:00 p.m. Location: Orange County Sanitation District Stanton Board Room, Administration Building Tustin 10844 Ellis Avenue Fountain Valley, CA 92708 Villa Park The Final Agenda Report will not be posted until three days prior to the Board of County of orange Directors Meeting. Should you wish to determine if the item has been placed on the Costa Mesa agenda, please contact the Clerk of the Board Office at (714) 593-7130. Sanitary District Miry Di City Sanitary District Irvine Ranch Water District Jay Kaura, C.P.M. Contracts Administrator Yorba Linda Water District JSK:ms cc: R. Thompson h '? V. Pilko J. Choi K. Lore Our Mission: To protect public health and the environment by Revision 013015 providing effective wastewater collection, treatment, and recycling. PART A CONTRACT AGREEMENT C-CA-051016 TABLE OF CONTENTS CONTRACT AGREEMENT SECTION - 1 GENERAL CONDITIONS..................................................................1 SECTION -2 MATERIALS AND LABOR.................................................................4 SECTION -3 PROJECT..........................................................................................4 SECTION -4 PLANS AND SPECIFICATONS ........................................................5 SECTION -5 TIME OF COMMENCEMENT AND COMPLETION ..........................5 SECTION -6 TIME IS OF THE ESSENCE .............................................................5 SECTION -7 EXCUSABLE DELAYS......................................................................6 SECTION -8 EXTRA WORK...................................................................................6 SECTION -9 CHANGES IN PROJECT...................................................................7 SECTION - 10 LIQUIDATED DAMAGES FOR DELAY.............................................7 SECTION - 11 CONTRACT PRICE AND METHOD OF PAYMENT.........................7 SECTION - 12 SUBSTITUTION OF SECURITIES IN LIEU OF RETENTION OF FUNDS ..............................................................................................9 SECTION - 13 COMPLETION.................................................................................10 SECTION - 14 CONTRACTOR'S EMPLOYEES COMPENSATION.......................10 SECTION - 15 SURETY BONDS ............................................................................12 SECTION - 16 INSURANCE....................................................................................13 SECTION - 17 RISK AND INDEMNIFICATION.......................................................21 SECTION - 18 TERMINATION................................................................................22 SECTION - 19 WARRANTY....................................................................................22 SECTION -20 ASSIGNMENT.................................................................................23 SECTION -21 RESOLUTION OF DISPUTES ........................................................23 SECTION -22 SAFETY& HEALTH ........................................................................23 SECTION -23 NOTICES.........................................................................................24 C-CA-051016 CONTRACT AGREEMENT ORANGE COUNTY SANITATION DISTRICT PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 THIS AGREEMENT is made and entered into, to be effective, this January 25, 2017, by and between Flatiron West, Inc., hereinafter referred to as "CONTRACTOR"and the Orange County Sanitation District, hereinafter referred to as "OCSD". WITNESSETH That for and in consideration of the promises and agreements hereinafter made and exchanged, OCSD and CONTRACTOR agree as follows: SECTION-1 GENERAL CONDITIONS CONTRACTOR certifies and agrees that all the terms, conditions and obligations of the Contract Documents as hereinafter defined, the location of the job site, and the conditions under which the Work is to be performed have been thoroughly reviewed, and enters into this Contract based upon CONTRACTOR's investigation of all such matters and is in no way relying upon any opinions or representations of OCSD. It is agreed that this Contract represents the entire agreement. It is further agreed that the Contract Documents are each incorporated into this Contract by reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its Subcontractors, if any, will be and are bound by any and all of said Contract Documents insofar as they relate in any part or in any way, directly or indirectly, to the Work covered by this Contract. A. Contract Documents Order of Precedence "Contract Documents" refers to those documents identified in the definition of"Contract Documents" in the General Conditions—Definitions. CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 1 of 25 1. In the event of a conflict between one Contract Document and any of the other Contract Documents, the provisions in the document highest in precedence shall be controlling. The order of precedence of the Contract Documents is as follows: a. Supplemental Agreements—the last in time being the first in precedence b. Addenda issued prior to opening of Bids—the last in time being the first in precedence c. Contract Agreement d. Permits and other regulatory requirements e. Special Provisions f. General Conditions (GC) g. Notice Inviting Bids and Instruction to Bidders h. Geotechnical Baseline Report(GBR), if attached as a Contract Document I. Plans and Specifications—in these documents the order of precedence shall be: i. Specifications (Divisions 01-17) ii. Plans H. General Requirements (GR) iv. Standard Drawings and Typical Details j. CONTRACTOR'S Bid 2. In the event of a conflict between terms within an individual Contract Document, the conflict shall be resolved by applying the following principles as appears applicable: a. Figured dimensions on the Contract Documents shall govern. Dimensions not specified shall be as directed by the ENGINEER. Details not shown or specified shall be the same as similar parts that are shown or specified, or as directed. Full-size details shall take precedence over scale Drawings as to C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 2 of 25 shape and details of construction. Specifications shall govern as to material and workmanship. b. The Contract Documents calling for the higher quality material or workmanship shall prevail. Materials or Work described in words, which so applied, have a well known technical or trade meaning shall be deemed to refer to such recognized standards. In the event of any discrepancy between any Drawings and the figures thereon, the figures shall be taken as correct. C. Scale Drawings, full-size details, and Specifications are intended to be fully complementary and to agree. Should any discrepancy between Contract Documents come to the CONTRACTOR's attention, or should an error occur in the efforts of others, which affect the Work, the CONTRACTOR shall notify the ENGINEER, in writing, at once. In the event any doubts or questions arise with respect to the true meaning of the Contract Documents, reference shall be made to the ENGINEER whose written decision shall be final. If the CONTRACTOR proceeds with the Work affected without written instructions from the ENGINEER, the CONTRACTOR shall be fully responsible for any resultant damage or defect. d. Anything mentioned in the Specifications and not indicated in the Plans, or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of discrepancy in the Plans or Specifications, the matter shall be immediately submitted to OCSD's ENGINEER, without whose decision CONTRACTOR shall not adjust said discrepancy save only at CONTRACTOR's own risk and expense. The decision of the ENGINEER shall be final. CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 3 of 25 In all matters relating to the acceptability of material, machinery or plant equipment; classifications of material or Work; the proper execution, progress or sequence of the Work; and quantities interpretation of the Contract Documents, the decision of the ENGINEER shall be final and binding, and shall be a condition precedent to any payment under the Contract, unless otherwise ordered by the Board of Directors. B. Definitions Capitalized terms used in this Contract are defined in the General Conditions, Definitions. Additional terms may be defined in the Special Provisions. SECTION—2 MATERIALS AND LABOR CONTRACTOR shall furnish, under the conditions expressed in the Plans and Specifications, at CONTRACTOR'S own expense, all labor and materials necessary, except such as are mentioned in the Specifications to be furnished by OCSD, to construct and complete the Project, in good workmanlike and substantial order. If CONTRACTOR fails to pay for labor or materials when due, OCSD may settle such claims by making demand upon the Surety to this Contract. In the event of the failure or refusal of the Surety to satisfy said claims, OCSD may settle them directly and deduct the amount of payments from the Contract Price and any amounts due to CONTRACTOR. In the event OCSD receives a stop payment notice from any laborer or material supplier alleging non-payment by CONTRACTOR, OCSD shall be entitled to deduct all of its costs and expenses incurred relating thereto, including but not limited to administrative and legal fees. SECTION-3 PROJECT The Project is described as: PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 4 of 25 SECTION-4 PLANS AND SPECIFICATONS The Work to be done is shown in a set of Plans and Specifications entitled: PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Said Plans and Specifications and any revision, amendments and addenda thereto are attached hereto and incorporated herein as part of this Contract and referred to by reference. SECTION—5 TIME OF COMMENCEMENT AND COMPLETION CONTRACTOR agrees to commence the Project within 15 calendar days from the date set forth in the "Notice to Proceed"sent by OCSD, unless otherwise specified therein and shall diligently prosecute the Work to completion within 896 calendar days from the date of the "Notice to Proceed" issued by OCSD, excluding delays caused or authorized by OCSD as set forth in Sections 7, 8, and 9 hereof, and applicable provisions in the General Conditions. The time for completion includes 21 calendar days determined by OCSD likely to be inclement weather when CONTRACTOR will be unable to work. In addition, CONTRACTOR shall accomplish such milestones within the periods of performance set forth in Appendix A of the Special Provisions entitled "Work Completion Schedule." SECTION—6 TIME IS OF THE ESSENCE Time is of the essence of this Contract. As required by the Contract Documents, CONTRACTOR shall prepare and obtain approval of all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of CONTRACTOR's Work in conformance with an approved construction progress schedule. CONTRACTOR shall coordinate the Work covered by this Contract with that of all other contractors, subcontractors and of OCSD, in a manner that will facilitate the efficient completion of the entire Work and accomplish the required milestone(s), if any, by the applicable deadline(s) in accordance with CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 5 of 25 Section 5 herein. OCSD shall have the right to assert complete control of the premises on which the Work is to be performed and shall have the right to decide the time or order in which the various portions of the Work shall be installed or the priority of the work of subcontractors, and, in general, all matters representing the timely and orderly conduct of the Work of CONTRACTOR on the premises. SECTION—7 EXCUSABLE DELAYS CONTRACTOR shall only be excused for any delay in the prosecution or completion of the Project as specifically provided in General Conditions, "Extensions for Delay", and the General Requirements, "By CONTRACTOR or Others— Unknown Utilities during Contract Work". Extensions of time and extra compensation arising from such excusable delays will be determined in accordance with the General Conditions, "Extension of Time for Delay" and "Contract Price Adjustments and Payments", and extensions of time and extra compensation as a result of incurring undisclosed utilities will be determined in accordance with General Requirements, "By CONTRACTOR or Others— Unknown Utilities during Contract Work". OCSD's decision will be conclusive on all parties to this Contract. SECTION—S EXTRA WORK The Contract Price as set forth in Section 11, includes compensation for all Work performed by CONTRACTOR, unless CONTRACTOR obtains a Change Order signed by a designated representative of OCSD specifying the exact nature of the Extra Work and the amount of extra compensation to be paid all as more particularly set forth in Section 9 hereof and the General Conditions, "Request for Change (Changes at CONTRACTOR's Request)", "OWNER Initiated Changes", and "Contract Price Adjustments and Payments". In the event a Change Order is issued by OCSD pursuant to the Contract Documents, OCSD C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 6 of 25 shall extend the time fixed in Section 5 for completion of the Project by the number of days, if any, reasonably required for CONTRACTOR to perform the Extra Work, as determined by OCSD's ENGINEER. The decision of the ENGINEER shall be final. SECTION—9 CHANGES IN PROJECT OCSD may at any time, without notice to any Surety, by Change Order, make any changes in the Work within the general scope of the Contract Document, including but not limited to changes: 1. In the Specifications (including Drawings and designs); 2. In the time, method or manner of performance of the Work; 3. In OCSD-furnished facilities, equipment, materials, services or site; or 4. Directing acceleration in the performance of the Work. No change of period of performance or Contract Price, or any other change in the Contract Documents, shall be binding until the Contract is modified by a fully executed Change Order. All Change Orders shall be issued in accordance with the requirements set forth in the General Conditions, "Request for Change (Changes at CONTRACTOR's Request)" and "OWNER Initiated Changes". SECTION—10 LIQUIDATED DAMAGES FOR DELAY Liquidated Damages shall be payable in the amounts and upon the occurrence of such events or failure to meet such requirements or deadlines as provided in the Special Provisions, "Liquidated Damages and Incentives." SECTION—11 CONTRACT PRICE AND METHOD OF PAYMENT A. OCSD agrees to pay and the CONTRACTOR agrees to accept as full consideration for the faithful performance of this Contract, subject to any additions or deductions as provided in CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 7 of 25 approved Change Orders, the sum of Sixteen Million Seven Hundred Thirty Thousand Dollars ($16,730,000)as itemized on the Attached Exhibit"A". Upon satisfaction of the conditions precedent to payment set forth in the General Requirements, Additional General Requirements and General Conditions (including but not limited to Sections entitled "Mobilization Payment Requirements"and "Payment Itemized Breakdown of Contract Lump Sum Prices"), there shall be paid to the CONTRACTOR an initial Net Progress Payment for mobilization. OCSD shall issue at the commencement of the job a schedule which shows: 1. A minimum of one payment to be made to the CONTRACTOR for each successive four(4)week period as the Work progresses, and 2. The due dates for the CONTRACTOR to submit requests for payment to meet the payment schedule. After the initial Net Progress Payment, and provided the CONTRACTOR submits the request for payment prior to the end of the day required to meet the payment schedule, the CONTRACTOR shall be paid a Net Progress Payment on the corresponding monthly payment date set forth in the schedule. Payments shall be made on demands drawn in the manner required by law, accompanied by a certificate signed by the ENGINEER, stating that the Work for which payment is demanded has been performed in accordance with the terms of the Contract Documents, and that the amount stated in the certificate is due under the terms of the Contract. Payment applications shall also be accompanied with all documentation, records, and releases as required by the Contract, Exhibit A, Schedule of Prices, and General Conditions, "Payment for Work—General". The Total amount of Progress Payments shall not exceed the actual value of the Work completed as certified by OCSD's ENGINEER. C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 8 of 25 The processing of payments shall not be considered as an acceptance of any part of the Work. B. As used in this Section, the following defined terms shall have the following meanings: 1. "Net Progress Payment' means a sum equal to the Progress Payment less the Retention Amount and other qualified deductions (Liquidated Damages, stop payment notices, etc.). 2. "Progress Payment' means a sum equal to: a. the value of the actual Work completed since the commencement of the Work as determined by OCSD; b. plus the value of material suitably stored at the worksite, treatment plant or approved storage yards subject to or under the control of OCSD since the commencement of the Work as determined by OCSD; C. less all previous Net Progress Payments; d. less all amounts of previously qualified deductions; e. less all amounts previously retained as Retention Amounts. 3. "Retention Amount'for each Progress Payment means the percentage of each Progress Payment to be retained by OCSD to assure satisfactory completion of the Contract. The amount to be retained from each Progress Payment shall be determined as provided in the General Conditions—"Retained Funds; Substitution of Securities." SECTION—12 SUBSTITUTION OF SECURITIES IN LIEU OF RETENTION OF FUNDS Pursuant to Public Contract Code Section 22300 at seq., the CONTRACTOR may, at its sole expense, substitute securities as provided in General Conditions—"Retained Funds; Substitution of Securities." CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 9 of 25 SECTION—13 COMPLETION Final Completion and Final Acceptance shall occur at the time and in the manner specified in the General Conditions, "Final Acceptance and Final Completion", "Final Payment" and Exhibit A- Schedule of Prices. Upon receipt of all documentation, records, and releases as required by the Contract from the CONTRACTOR, OCSD shall proceed with the Final Acceptance as specified in General Conditions. SECTION—14 CONTRACTOR'S EMPLOYEES COMPENSATION A. Davis-Bacon Act: CONTRACTOR will pay and will require all Subcontractors to pay all employees on said Project a salary or wage at least equal to the prevailing rate of per diem wages as determined by the Secretary of Labor in accordance with the Davis-Bacon Act for each craft or type of worker needed to perform the Contract. The provisions of the Davis-Bacon Act shall apply only if the Contract is in excess of Two Thousand Dollars ($2,000.00)and when twenty-five percent (25%) or more of the Contract is funded by federal assistance. If the aforesaid conditions are met, a copy of the provisions of the Davis-Bacon Act to be complied with are incorporated herein as a part of this Contract and referred to by reference. B. General Prevailing Rate: OCSD has been advised by the State of California Director of Industrial Relations of its determination of the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime Work in the locality in which the Work is to be C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 10 of 25 performed for each craft or type of Work needed to execute this Contract, and copies of the same are on file in the Office of the ENGINEER of OCSD. The CONTRACTOR agrees that not less than said prevailing rates shall be paid to workers employed on this public works Contract as required by Labor Code Section 1774 of the State of California. Per California Labor Code 1773.2, OCSD will have on file copies of the prevailing rate of per diem wages at its principal office and at each job site, which shall be made available to any interested party upon request. C. Forfeiture for Violation: CONTRACTOR shall, as a penalty to OCSD, forfeit Two Hundred Dollars ($200.00)for each calendar day or portion thereof for each worker paid (either by the CONTRACTOR or any Subcontractor under it) less than the prevailing rate of per diem wages as set by the Director of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor Code for the Work provided for in this Contract, all in accordance with Section 1775 of the Labor Code of the State of California. D. Apprentices: Sections 1777.5, 1777.6, 1777.7 of the Labor Code of the State of California, regarding the employment of apprentices are applicable to this Contract and the CONTRACTOR shall comply therewith if the prime contract involves Thirty Thousand Dollars ($30,000.00) or more. E. Workdav: In the performance of this Contract, not more than eight(8) hours shall constitute a day's work, and the CONTRACTOR shall not require more than eight(8) hours of labor in a day from any person employed by him hereunder except as provided in paragraph (B)above. CONTRACTOR shall conform to Article 3, Chapter 1, Part 7 (Section 1810 at sec.)of the Labor Code of the State of California and shall forfeit to OCSD as a penalty, the sum of CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 11 of 25 Twenty-five Dollars ($25.00)for each worker employed in the execution of this Contract by CONTRACTOR or any Subcontractor for each calendar day during which any worker is required or permitted to labor more than eight(8) hours in any one calendar day and forty (40) hours in any one week in violation of said Article. CONTRACTOR shall keep an accurate record showing the name and actual hours worked each calendar day and each calendar week by each worker employed by CONTRACTOR in connection with the Project. F. Registration: Record of Wages: Inspection: CONTRACTOR shall comply with the registration requirements of Labor Code Section 1725.5. Pursuant to Labor Code Section 1771.4, the Work is subject to compliance monitoring by the California Department of Industrial Relations. CONTRACTOR shall maintain accurate payroll records and shall submit payroll records to the Labor Commissioner pursuant to Labor Code Section 1771.4(a)(3). Penalties for non-compliance with the requirements of Section 1776 may be deducted from progress payments per Section 1776. CONTRACTOR shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations Section 16461(a). SECTION- 15 SURETY BONDS CONTRACTOR shall, before entering upon the performance of this Contract, furnish Bonds approved by OCSD's General Counsel—one in the amount of one hundred percent (100%)of the Contract amount, to guarantee the faithful performance of the Work, and the other in the amount of one hundred percent (100%)of the Contract amount to guarantee payment of all claims for labor and materials furnished. As changes to the Contract occur via approved Change Orders, the CONTRACTOR shall assure that the amounts of the Bonds are adjusted to maintain 100% of the Contract Price. This Contract shall not become effective until such Bonds are supplied to and approved by OCSD. Bonds must be issued by a Surety authorized by the C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 12 of 25 State Insurance Commissioner to do business in California. The Performance Bond shall remain in full force and effect through the warranty period, as specified in Section 19 below. All Bonds required to be submitted relating to this Contract must comply with California Code of Civil Procedure Section 995.630. Each Bond shall be executed in the name of the Surety insurer under penalty of perjury, or the fact of execution of each Bond shall be duly acknowledged before an officer authorized to take and certify acknowledgments, and either one of the following conditions shall be satisfied: A. A copy of the transcript or record of the unrevoked appointment, power of attorney, by- laws, or other instrument, duly certified by the proper authority and attested by the seal of the insurer entitling or authorizing the person who executed the Bond to do so for and on behalf of the insurer, is on file in the Office of the County Clerk of the County of Orange; or B. A copy of a valid power of attorney is attached to the Bond. SECTION— 16 INSURANCE CONTRACTOR shall purchase and maintain, for the duration of the Contract, insurance against claims for injuries to persons, or damages to property which may arise from or in connection with the performance of the Work hereunder, and the results of that Work by CONTRACTOR, its agents, representatives, employees, or Subcontractors, in amounts equal to the requirements set forth below. CONTRACTOR shall not commence Work under this Contract until all insurance required under this Section is obtained in a form acceptable to OCSD, nor shall CONTRACTOR allow any Subcontractor to commence Work on a subcontract until all insurance required of the Subcontractor has been obtained. CONTRACTOR shall maintain all of the foregoing insurance coverages in force through the point at which the Work under this Contract is fully completed and accepted by OCSD pursuant to the provisions of the General Conditions, "Final Acceptance and Final Completion'. Furthermore, CONTRACTOR shall maintain all of the foregoing insurance coverages in full force and effect throughout the warranty CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 13 of 25 period, commencing on the date of Final Acceptance. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of OCSD by CONTRACTOR under Section 17 of this Contract. Notwithstanding nor diminishing the obligations of CONTRACTOR with respect to the foregoing, CONTRACTOR shall subscribe for and maintain in full force and effect during the life of this Contract, inclusive of all changes to the Contract Documents made in accordance with the provisions of the General Conditions, "Request for Change (Changes at CONTRACTOR's Request)" and/or"OWNER Initiated Changes", the following insurance in amounts not less than the amounts specified. OCSD reserves the right to amend the required limits of insurance commensurate with the CONTRACTOR's risk at any time during the course of the Project. No vehicles may enter OCSD Premises/worksite without possessing the required insurance coverage. CONTRACTOR's insurance shall also comply with all insurance requirements prescribed by agencies from whom permits shall be obtained for the Work and any other third parties from whom third party agreements are necessary to perform the Work (collectively, the "Third Parties"), The Special Provisions may list such requirements and sample forms and requirements from such Third Parties may be included in an attachment to the General Requirements. CONTRACTOR bears the responsibility to discover and comply with all requirements of Third Parties, including meeting specific insurance requirements, that are necessary for the complete performance of the Work. To the extent there is a conflict between the Third Parties' insurance requirements and those set forth by OCSD herein, the requirement(s) providing the more protective coverage for both OSCD and the Third Parties shall control and be purchased and maintained by CONTRACTOR. C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 14 of 25 A. Limits of Insurance 1. General Liability: Eight Million Dollars ($8,000,000) per occurrence and a general aggregate limit of Eight Million Dollars ($8,000,000)for bodily injury, personal injury and property damage. Coverage shall include each of the following: a. Premises-Operations. b. Products and Completed Operations, with limits of at least Eight Million Dollars ($8,000,000) per occurrence and a general aggregate limit of Eight Million Dollars ($8,000,000)which shall be in effect at all times during the warranty period set forth in the Warranty section herein, and as set forth in the General Conditions, "Warranty(CONTRACTOR's Guarantee)", plus any additional extension or continuation of time to said warranty period that may be required or authorized by said provisions. C. Broad Form Property Damage, expressly including damage arising out of explosion, collapse, or underground damage. d. Contractual Liability, expressly including the indemnity provisions assumed under this Contract. e. Separation of Insured Clause, providing that coverage applies separately to each insured, except with respect to the limits of liability. f. Independent CONTRACTOR's Liability. To the extent first dollar coverage, including defense of any claim, is not available to OCSD or any other additional insured because of any SIR, deductible, or any other form of self insurance, CONTRACTOR is obligated to assume responsibility of insurer until the deductible, SIR or other condition of insurer assuming its defense and/or indemnity has been satisfied. CONTRACTOR shall be responsible to pay any deductible or SIR. CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 15 of 25 g. If a crane will be used, the General Liability insurance will be endorsed to add Riggers Liability coverage or its equivalent to cover the usage of the crane and exposures with regard to the crane operators, riggers and others involved in using the crane. h. If divers will be used, the General Liability insurance will be endorsed to cover marine liability or its equivalent to cover the usage of divers. 2. Automobile Liability: The CONTRACTOR shall maintain a policy of Automobile Liability Insurance on a comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and other vehicles providing the following minimum limits of liability coverage: Either(1)a combined single limit of Five Million Dollars ($5,000,000) and a general aggregate limit of Five Million Dollars ($5,000,000)for bodily injury, personal injury and property damage; Or alternatively, (2) Five Million Dollars ($5,000,000) per person for bodily injury and Two Million Dollars ($2,000,000 per accident for property damage. 3. Umbrella Excess Liability: The minimum limits of general liability and automobile liability insurance required, as set forth above, shall be provided for either in a single policy of primary insurance or a combination of policies of primary and umbrella excess coverage. Excess liability coverage shall be issued with limits of liability which, when combined with the primary insurance, will equal the minimum limits for general liability and automobile liability. 4. Drone Liability Insurance: If a drone will be used, drone liability insurance must be maintained by CONTRACTOR in the amount of One Million Dollars ($1,000,000) in a form acceptable by OCSD. C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 16 of 25 5. Worker's Compensation/EmDlover's Liability: CONTRACTOR shall provide such Worker's Compensation Insurance as required by the Labor Code of the State of California, including employer's liability with a minimum limit of One Million Dollars ($1,000,000) per accident for bodily injury or disease. If an exposure to Jones Act liability may exist, the insurance required herein shall include coverage with regard to Jones Act claims. Where permitted by law, CONTRACTOR hereby waives all rights of recovery by subrogation because of deductible clauses, inadequacy of limits of any insurance policy, limitations or exclusions of coverage, or any other reason against OCSD, its or their officers, agents, or employees, and any other contractor or subcontractor performing Work or rendering services on behalf of OCSD in connection with the planning, development and construction of the Project. In all its insurance coverages related to the Work, CONTRACTOR shall include clauses providing that each insurer shall waive all of its rights of recovery by subrogation against OCSD, its or their officers, agents, or employees, or any other contractor or subcontractor performing Work or rendering services at the Project. Where permitted by law, CONTRACTOR shall require similar written express waivers and insurance clauses from each of its Subcontractors of every tier. A waiver of subrogation shall be effective as to any individual or entity, even if such individual or entity (a)would otherwise have a duty of indemnification, contractual or otherwise, (b)did not pay the insurance premium, directly or indirectly, and (c)whether or not such individual or entity has an insurable interest in the property damaged. CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 17 of 25 6. Limits are Minimums: If CONTRACTOR maintains higher limits than the minimums shown in this Section, OCSD requires and shall be entitled to coverage for the higher limits maintained by the CONTRACTOR. B. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by OCSD. At the option of OCSD, either: the Insurer shall reduce or eliminate such deductibles or self- insured retentions as respects OCSD, its Directors, officers, agents, CONSULTANTS, and employees; or CONTRACTOR shall provide a financial guarantee satisfactory to OCSD guaranteeing payment of losses and related investigations, claim administration, and defense expenses. C. Other Insurance Provisions 1. Each such policy of General Liability Insurance and Automobile Liability Insurance shall be endorsed to contain, the following provisions: a. OCSD, its Directors, officers, agents, CONSULTANTS, and employees, and all public agencies from whom permits will be obtained, and their Directors, officers, agents, and employees are hereby declared to be additional insureds under the terms of this policy, but only with respect to the operations of CONTRACTOR at or from any of the sites of OCSD in connection with this Contract, or acts and omissions of the additional insured in connection with its general supervision or inspection of said operations related to this Contract. b. Insurance afforded by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by OCSD shall be excess only and not contributing with insurance provided under this policy. C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 18 of 25 [REVISED PER ADDENDUM NO. 6, ISSUED NOVEMBER 10, 20161 2. Each insurance policy required herein shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30)days prior written notice by certified mail, return receipt requested, and that coverage shall not be cancelled for non-payment of premium except after ten (10)days prior written notice by certified mail, return receipt requested. Should there be material changes in coverage or an increase in deductible or SIR amounts, CONTRACTOR undertakes to procure a manuscript endorsement from its insurer giving 30 days prior notice of such an event to OCSD, or to have its insurance broker/agent send to OCSD a certified letter describing the changes in coverage and any increase in deductible or SIR amounts. The certified letter must be sent Attention: Risk Management and shall be received not less than twenty (20) days prior to the effective date of the change(s). The letter must be signed by a Director or Officer of the broker/agent and must be on company letterhead, and may be sent via e-mail in pdf format. 3. Coverage shall not extend to any indemnity coverage for the active negligence of any additional insured in any case where an agreement to indemnify the additional insured would be invalid under California Civil Code Section 2782(b). 4. If required by a public agency from whom permit(s)will be obtained, each policy of General Liability Insurance and Automobile Liability Insurance shall be endorsed to specify by name the public agency and its legislative members, officers, agents, CONSULTANTS, and employees, to be additional insureds. D. Acceptability of Insurers Insurers must have an 'A-", or better, Policyholder's Rating, and a Financial Rating of at least Class Vill, or better, in accordance with the most current A.M. Best Rating Guide. OCSD recognizes that State Compensation Insurance Fund has withdrawn from CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 19 of 25 participation in the A.M. Best Rating Guide process. Nevertheless, OCSD will accept State Compensation Insurance Fund for the required policy of workers compensation insurance, subject to OCSD's option, at any time during the term of this Contract, to require a change in insurer upon twenty (20)days written notice. Further, OCSD will require CONTRACTOR to substitute any insurer whose rating drops below the levels herein specified. Said substitution shall occur within twenty (20)days of written notice to CONTRACTOR by OCSD or its agent. E. Verification of Coverage CONTRACTOR shall furnish OCSD with original certificates and mandatory endorsements affecting coverage. Said policies and endorsements shall conform to the requirements herein stated. All certificates and endorsements are to be received and approved by OCSD before Work commences. OCSD reserves the right to require complete, certified copies of all required insurance policies, including endorsements, affecting the coverage required by these Specifications at any time. F. Subcontractors CONTRACTOR shall be responsible to establish insurance requirements for any Subcontractors hired by CONTRACTOR. The insurance shall be in amounts and types reasonably sufficient to deal with the risk of loss involving the Subcontractor's operations and work. OCSD and any public agency issuing permits for the Project must be named as "Additional Insured"on any General Liability or Automobile Liability policy obtained by a Subcontractor. The CONTRACTOR must obtain copies and maintain current versions of all Subcontractors' policies, Certificate of Liability and mandatory endorsements effecting coverage. Upon request, CONTRACTOR must furnish OCSD with the above referenced required documents. C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 20 of 25 G. Required Forms and Endorsements 1. Required ACORD Form a. Certificate of Liability Form 25 2. Required Insurance Services Office, Inc. Endorsements (when alternative forms are shown, they are listed in order of preference) In the event any of the following forms are cancelled by Insurance Services Office, Inc. (ISO), or are updated, the ISO replacement form or equivalent must be supplied. a. Commercial General Liability Form CG-0001 10 01 b. Additional Insured Including Form CG-2010 10 01 and Products-Completed Operations Form CG-2037 10 01 C. Waiver of Transfer of Rights of Form CG-2404 11 85; or Recovery Against Others to Us/ Form CG-2404 10 93 Waiver of Subrogation 3. Required State Compensation Insurance Fund Endorsements a. Waiver of Subrogation Endorsement No. 2570 b. Cancellation Notice Endorsement No. 2065 4. Additional Required Endorsements a. Notice of Policy Termination Manuscript Endorsement SECTION—17 RISK AND INDEMNIFICATION All Work covered by this Contract done at the site of construction or in preparing or delivering materials to the site shall be at the risk of CONTRACTOR alone. CONTRACTOR shall save, indemnify, defend, and keep OCSD and others harmless as more specifically set forth in General Conditions, "General Indemnification". CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 21 of 25 SECTION-18 TERMINATION This Contract may be terminated in whole or in part in writing by OCSD in the event of substantial failure by the CONTRACTOR to fulfill its obligations under this Agreement, or it may be terminated by OCSD for its convenience provided that such termination is effectuated in a manner and upon such conditions set forth more particularly in General Conditions, "Termination for Default" and/or"Termination for Convenience", provided that no termination may be effected unless proper notice is provided to CONTRACTOR at the time and in the manner provided in said General Conditions. If termination for default or convenience is effected by OCSD, an equitable adjustment in the price provided for in this Contract shall be made at the time and in the manner provided in the General Conditions, "Termination for Default" and "Termination for Convenience". SECTION-19 WARRANTY The CONTRACTOR agrees to perform all Work under this Contract in accordance with the Contract Documents, including OCSD's designs, Drawings and Specifications. The CONTRACTOR guarantees for a period of at least one (1) year from the date of Final Acceptance of the Work, pursuant to the General Conditions, "Final Acceptance and Final Completion" that the completed Work is free from all defects due to faulty materials, equipment or workmanship and that it shall promptly make whatever adjustments or corrections which may be necessary to cure any defects, including repairs of any damage to other parts of the system resulting from such defects. OCSD shall promptly give notice to the CONTRACTOR of observed defects. In the event that the CONTRACTOR fails to make adjustments, repairs, corrections or other work made necessary by such defects, OCSD may do so and charge the CONTRACTOR the cost incurred. The CONTRACTOR's warranty shall continue as to any corrected deficiency until the later of(1)the remainder of the original one-year warranty period; C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 22 of 25 or(2)one year after acceptance by OCSD of the corrected Work. The Performance Bond and the Payment Bond shall remain in full force and effect through the guarantee period. The CONTRACTOR'S obligations under this clause are in addition to the CONTRACTOR'S other express or implied assurances under this Contract, including but not limited to specific manufacturer or other extended warranties specified in the Plans and Specifications, or state law and in no way diminish any other rights that OCSD may have against the CONTRACTOR for faulty materials, equipment or Work. SECTION-20 ASSIGNMENT No assignment by the CONTRACTOR of this Contract or any part hereof, or of funds to be received hereunder, will be recognized by OCSD unless such assignment has had prior written approval and consent of OCSD and the Surety. SECTION—21 RESOLUTION OF DISPUTES OCSD and the CONTRACTOR shall comply with the provisions of California Public Contract Code Section 20104 at. seq., regarding resolution of construction claims for any Claims which arise between the CONTRACTOR and OCSD, as well as all applicable dispute and Claims provisions as set forth in the General Conditions and as otherwise required by law. SECTION—22 SAFETY & HEALTH CONTRACTOR shall comply with all applicable safety and health requirements mandated by federal, state, city and/or public agency codes, permits, ordinances, regulations, and laws, as well as these Contract Documents, including but not limited to the General Requirements, Section entitled "Safety" and Exhibit B OCSD Safety Standards. CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 23 of 25 SECTION-23 NOTICES Any notice required or permitted under this Contract may be given by ordinary mail at the address set forth below. Any party whose address changes shall notify the other party in writing. TO OCSD: Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, California 92708-7018 Attn: Clerk of the Board Copy to: Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, California 92708-7018 Attn: Construction Manager Bradley R. Hogin, Esquire Woodruff, Spradlin & Smart 555 Anton Boulevard Suite 1200 Costa Mesa, California 92626 TO CONTRACTOR: Flatiron West, Inc. 1770 La Costa Meadows Drive San Marcos, CA 92078 Copy to: Dale A. Nelson, Vice-President Flatiron West, Inc. 1770 La Costa Meadows Drive San Marcos, CA 92078 C-CA-051016 CONFORMED PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 24 of 25 IN WITNESS WHEREOF, the parties hereto have executed this Contract Agreement as the date first hereinabove written. CONTRACTOR: Flatiron West, Inc. 1770 La Costa Meadows Drive San Marcos, CA 92078 By Printed Name Its CONTRACTOR's State License No. 772589 (Expiration Date— 12/3112017) OCSD: Orange County Sanitation District By Gregory C. Seboum, PLS Chair, Board of Directors By Kelly Lore Clerk of the Board By Marc Dubois Contracts, Purchasing and Materials Management Division Manager CONFORMED C-CA-051016 PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 25 of 25 EXHIBIT A SCHEDULE OF PRICES C-EXA-080414 TABLE OF CONTENTS EXHIBIT A SCHEDULE OF PRICES EXA-1 BASIS OF COMPENSATION ..............................................................................1 EXA-2 PROGRESS PAYMENTS....................................................................................1 EXA-3 RETENTION AND ESCROW ACCOUNTS .........................................................1 EXA-4 STOP PAYMENT NOTICE ..................................................................................3 EXA-5 PAYMENT TO SUBCONTRACTORS..................................................................3 EXA-6 PAYMENT OF TAXES.........................................................................................3 EXA-7 FINAL PAYMENT ................................................................................................4 EXA-8 DISCOVERY OF DEFICIENCIES BEFORE AND AFTER FINAL PAYMENT.....5 ATTACHMENT 1 CERTIFICATION FOR REQUEST FOR PAYMENT........................7 ATTACHMENT 2 SCHEDULE OF PRICES ...........................................................8 C-EXA-080414 EXHIBIT A SCHEDULE OF PRICES EXA-1 BASIS OF COMPENSATION CONTRACTOR will be paid the Contract Price according to the Schedule of Prices, and all other applicable terms and conditions of the Contract Documents. EXA-2 PROGRESS PAYMENTS Progress payments will be made in accordance with all applicable terms and conditions of the Contract Documents, including, but not limited to: 1. Contract Agreement—Section 11 —"Contract Price and Method of Payment;" 2. General Conditions—"Payment—General"; 3. General Conditions—"Payment—Applications for Payment"; 4. General Conditions—"Payment— Mobilization Payment Requirements;" 5. General Conditions—"Payment— Itemized Breakdown of Contract Lump Sum Prices"; 6. General Conditions—"Contract Price Adjustments and Payments"; 7. General Conditions—"Suspension of Payments"; 8. General Conditions—"OCSD's Right to Withhold Certain Amounts and Make Application Thereof"; and 9. General Conditions—"Final Payment." EXA-3 RETENTION AND ESCROW ACCOUNTS A. Retention: OCSD shall retain a percentage of each progress payment to assure satisfactory completion of the Work. The amount to be retained from each progress payment shall be determined as provided in General Conditions— "Retained Funds; Substitution of Securities". In all contracts between CONTRACTOR and its Subcontractors and/or Suppliers, the retention may not exceed the percentage specified in the Contract Documents. CONFORMED C-EXA-080414 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 1 of 8 B. Substitution of Securities: CONTRACTOR may, at its sole expense, substitute securities as provided in General Conditions—"Retained Funds; Substitution of Securities." Payment of Escrow Agent: In lieu of substitution of securities as provided above, the CONTRACTOR may request and OCSD shall make payment of retention earned directly to the escrow agent at the expense of the CONTRACTOR. At the expense of the CONTRACTOR, the CONTRACTOR may direct the investment of the payments into securities consistent with Government Code §16430 and the CONTRACTOR shall receive the interest earned on the investments upon the same terms provided for in this article for securities deposited by the CONTRACTOR. Upon satisfactory completion of the Contract, the CONTRACTOR shall receive from the escrow agent all securities, interest and payments received by the escrow agent from OCSD, pursuant to the terms of this article. The CONTRACTOR shall pay to each Subcontractor, not later than twenty (20)calendar days after receipt of the payment, the respective amount of interest earned, net of costs attributed to retention withheld from each Subcontractor, on the amount of retention withheld to ensure the performance of the Subcontractor. The escrow agreement used by the escrow agent pursuant to this article shall be substantially similar to the form set forth in §22300 of the California Public Contract Code. C. Release of Retention: Upon Final Acceptance of the Work, the CONTRACTOR shall submit an invoice for release of retention in accordance with the terms of the Contract. D. Additional Deductibles: In addition to the retentions described above, OCSD may deduct from each progress payment any or all of the following: 1. Liquidated Damages that have occurred as of the date of the application for progress payment; 2. Deductions from previous progress payments already paid, due to OCSD's discovery of deficiencies in the Work or non-compliance with the Specifications or any other requirement of the Contract; 3. Sums expended by OCSD in performing any of the CONTRACTOR'S obligations under the Contract that the CONTRACTOR has failed to perform, and; 4. Other sums that OCSD is entitled to recover from the CONTRACTOR under the terms of the Contract, including without limitation insurance deductibles and assessments. C-EXA-080414 CONFORMED PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 2 of 8 The failure of OCSD to deduct any of the above-identified sums from a progress payment shall not constitute a waiver of OCSD's right to such sums or to deduct them from a later progress payment. EXA-4 STOP PAYMENT NOTICE In addition to other amounts properly withheld under this article or under other provisions of the Contract, OCSD shall retain from progress payments otherwise due the CONTRACTOR an amount equal to one hundred twenty-five percent (125%)of the amount claimed under any stop payment notice under Civil Code§9350 at. seq. or other lien filed against the CONTRACTOR for labor, materials, supplies, equipment, and any other thing of value claimed to have been furnished to and/or incorporated into the Work; or for any other alleged contribution thereto. In addition to the foregoing and in accordance with Civil Code§9358 OCSD may also satisfy its duty to withhold funds for stop payment notices by refusing to release funds held in escrow pursuant to public receipt of a release of stop payment notice executed by a stop payment notice claimant, a stop payment notice release bond, an order of a court of competent jurisdiction, or other evidence satisfactory to OCSD that the CONTRACTOR has resolved such claim by settlement. EXA-5 PAYMENT TO SUBCONTRACTORS Requirements 1. The CONTRACTOR shall pay all Subcontractors for and on account of Work performed by such Subcontractors, not later than seven (7) days after receipt of each progress payment as required by the California Business and Professions Code §7108.5. Such payments to Subcontractors shall be based on the measurements and estimates made pursuant to article progress payments provided herein. 2. Except as specifically provided by law, the CONTRACTOR shall pay all Subcontractors any and all retention due and owing for and on account of Work performed by such Subcontractors not later than seven (7)days after CONTRACTOR'S receipt of said retention proceeds from OCSD as required by the California Public Contract Code§7107. EXA-6 PAYMENT OF TAXES Unless otherwise specifically provided in this Contract, the Contract Price includes full compensation to the CONTRACTOR for all taxes. The CONTRACTOR shall pay all federal, state, and local taxes, and duties applicable to and assessable against any Work, including but not limited to retail sales and use, transportation, export, import, business, and special taxes. The CONTRACTOR shall ascertain and pay the taxes when due. The CONTRACTOR will maintain auditable records, subject to OCSD reviews, confirming that tax payments are current at all times. CONFORMED C-EXA-080414 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 3 of 8 EXA-7 FINAL PAYMENT After Final Acceptance of the Work, as more particularly set forth in the General Conditions, "Final Acceptance and Final Completion", and after Resolution of the Board authorizing final payment and satisfaction of the requirements as more particularly set forth in General Conditions—"Final Payment", a final payment will be made as follows: 1. Prior to Final Acceptance, the CONTRACTOR shall prepare and submit an application for Final Payment to OCSD, including: a. The proposed total amount due the CONTRACTOR, segregated by items on the payment schedule, amendments, Change Orders, and other bases for payment; b. Deductions for prior progress payments; c. Amounts retained; d. A conditional waiver and release on final payment for each Subcontractor(per Civil Code Section 8136); e. A conditional waiver and release on final payment on behalf of the CONTRACTOR (per Civil Code Section 8136); f. List of Claims the CONTRACTOR intends to file at that time or a statement that no Claims will be filed, g. List of pending unsettled claims, stating claimed amounts, and copies of any and all complaints and/or demands for arbitration received by the CONTRACTOR; and h. For each and every claim that resulted in litigation or arbitration which the CONTRACTOR has settled, a conformed copy of the Request for Dismissal with prejudice or other satisfactory evidence the arbitration is resolved. 2. The application for Final Payment shall include complete and legally effective releases or waivers of liens and stop payment notices satisfactory to OCSD, arising out of or fled in connection with the Work. Prior progress payments shall be subject to correction in OCSD's review of the application for Final Payment. Claims filed with the application for Final Payment must be otherwise timely under the Contract and applicable law. 3. Within a reasonable time, OCSD will review the CONTRACTOR'S application for Final Payment. Any recommended changes or corrections will then be forwarded to the CONTRACTOR. Within ten (10) calendar days after receipt of recommended changes from OCSD, the CONTRACTOR will make the changes, or list Claims that will be filed as a result of the changes, and shall submit the revised application for Final Payment. Upon C-EXA-080414 CONFORMED PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 4 of 8 acceptance by OCSD, the revised application for Final Payment will become the approved application for Final Payment. 4. If no Claims have been fled with the initial or any revised application for Final Payment, and no Claims remain unsettled within thirty-five (35) calendar days after Final Acceptance of the Work by OCSD, and agreements are reached on all issues regarding the application for Final Payment, OCSD, in exchange for an executed release, satisfactory in form and substance to OCSD, will pay the entire sum found due on the approved application for Final Payment, including the amount, if any, allowed on settled Claims. 5. The release from the CONTRACTOR shall be from any and all Claims arising under the Contract, except for Claims that with the concurrence of OCSD are specifically reserved, and shall release and waive all unreserved Claims against OCSD and its officers, directors, employees and authorized representatives. The release shall be accompanied by a certification by the CONTRACTOR that: a. It has resolved all Subcontractors, Suppliers and other Claims that are related to the settled Claims included in the Final Payment; b. It has no reason to believe that any party has a valid claim against the CONTRACTOR or OCSD which has not been communicated in writing by the CONTRACTOR to OCSD as of the date of the certificate; c. All warranties are in full force and effect, and; d. The releases and the warranties shall survive Final Payment. 6. If any claims remain open, OCSD may make Final Payment subject to resolution of those claims. OCSD may withhold from the Final Payment an amount not to exceed one hundred fifty percent (150%)of the sum of the amounts of the open claims, and one hundred twenty-five percent (125%) of the amounts of open stop payment notices referred to in article entitled stop payment notices herein. 7. The CONTRACTOR shall provide an unconditional waiver and release on final payment from each Subcontractor and Supplier providing Work under the Contract(per Civil Code Section 8138) and an unconditional waiver and release on final payment on behalf of the CONTRACTOR (per Civil Code Section 8138)within thirty (30)days of receipt of Final Payment. EXA-8 DISCOVERY OF DEFICIENCIES BEFORE AND AFTER FINAL PAYMENT Notwithstanding OCSD's acceptance of the application for Final Payment and irrespective of whether it is before or after Final Payment has been made, OCSD shall not be precluded from subsequently showing that: 1. The true and correct amount payable for the Work is different from that previously accepted; CONFORMED C-EXA-080414 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 5 of 8 2. The previously-accepted Work did not in fact conform to the Contract requirements, or; 3. A previous payment or portion thereof for Work was improperly made. OCSD also shall not be stopped from demanding and recovering damages from the CONTRACTOR, as appropriate, under any of the foregoing circumstances as permitted under the Contract or applicable law. C-EXA-080414 CONFORMED PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 6 of 8 ATTACHMENTI CERTIFICATION FOR REQUEST FOR PAYMENT I hereby certify under penalty of perjury as follows: That the claim for payment is in all respects true, correct; that the services mentioned herein were actually rendered and/or supplies delivered to OCSD in accordance with the Contract. I understand that it is a violation of both the federal and California False Claims Acts to knowingly present or cause to be presented to OCSD a false claim for payment or approval. A claim includes a demand or request for money. It is also a violation of the False Claims Acts to knowingly make use of a false record or statement to get a false claim paid. The term "knowingly" includes either actual knowledge of the information, deliberate ignorance of the truth or falsity of the information, or reckless disregard for the truth or falsity of the information. Proof of specific intent to defraud is not necessary under the False Claims Acts. I understand that the penalties under the Federal False Claims Act and State of California False Claims Act are non-exclusive, and are in addition to any other remedies which OCSD may have either under contract or law. I hereby further certify, to the best of my knowledge and belief, that: 1. The amounts requested are only for performance in accordance with the Specifications, terms, and conditions of the Contract; 2. Payments to Subcontractors and Suppliers have been made from previous payments received under the Contract, and timely payments will be made from the proceeds of the payment covered by this certification; 3. This request for progress payments does not include any amounts which the prime CONTRACTOR intends to withhold or retain from a Subcontractor or Supplier in accordance with the terms and conditions of the subcontract; and 4. This certification is not to be construed as Final Acceptance of a Subcontractor's performance. Name Title Date CONFORMED C-EXA-080414 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 7 of 8 ATTACHMENT SCHEDULE OF PRICES See next pages from the Bid Submittal Forms (Flatiron West, Inc.): BF-14 Schedule of Prices, Pages 1-2 C-EXA-080414 CONFORMED PROJECT NO.P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 8 of 8 Bid Submitted By: Flatiron West, Inc. (Name of Fem) BF-14 SCHEDULE OF PRICES INSTRUCTIONS A. General For Unit Prices, it is understood that the following quantities are approximate only and are solely for the purpose of estimating the comparison of Bids, and that the actual value of Work will be computed based upon the actual quantities in the completed Work,whether they be more or less than those shown. CONTRACTOR'S compensation for the Work under the Contract Documents will be computed based upon the lump sum amount of the Contract at time of award, plus any additional or deleted costs approved by OCSD via approved Change Orders, pursuant to the Contract Documents. Bidder shall separately price and accurately reflect costs associated with each line item, leaving no blanks. Any and all modifications to the Bid must be initialed by an authorized representative of the Bidder in accordance with the Instructions to Bidders, Preparation of Bid. Bidders are reminded of Instruction to Bidders, Discrepancy in Bid Items,which, in summary, provides that the total price for each item shall be based on the Unit Price listed for each item multiplied by the quantity;and the correct Total Price for each Rem shall be totaled to determine the Total Amount of Bid. All applicable costs including overhead and profit shall he reflected in the respective unit costs and the TOTAL AMOUNT OF BID. The Bid price shall include all costs to complete the Work, including profit,overhead, etc., unless otherwise specified in the Contract Documents. All applicable sales taxes, state and/or federal, and any other special taxes, patent rights or royalties shall be included in the prices quoted in this Bid. B. Basis of Award AWARD OF THE CONTRACT WILL BE MADE ON THE BASIS OF THE LOWEST RESPONSIVE AND RESPONSIBLE BID. THE LOWEST BID IS DEFINED AS THE"TOTAL AMOUNT OF BID'LISTED IN THIS BID, UNLESS OTHERWISE SPECIFIED BELOW. Note 1: Base Bid. Includes all costs necessary to furnish all labor, materials, equipment and services for the construction of the Project per the Contract Documents. BF-14 SCHEDULE OF PRICES C-BF-021115 PROJECT NO. P2-110 CONSOLIDATED DEMOLITION AND UTILITY IMPROVEMENTS AT PLANT 2 Page 1 of 2 / \ } F ® r } ! - \ } � \ \ k ; \ m 10, )t _ § 0 ( )k | :» , § § / ) , ! , \ ( \\ \ �\ k : k� §|f !\ Wo \ § \ §�o \/ )k OME G q{ ME | ° _ §{ 0 q! ! ■ 7 § 7 20 & § ; 0 a 0 / PROFESSIONAL CONSTRUCTION SERVICES AGREEMENT THIS AGREEMENT, is made and entered into to be effective the 25U day of January, 2017 by and between the ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to as "SANITATION DISTRICT", and STANTEC CONSULTING SERVICES, INC., for purposes of this Agreement hereinafter referred to as "CONSULTANT". WITNESSETH: WHEREAS, the SANITATION DISTRICT desires to engage a CONSULTANT to provide Construction Support Services for Consolidated Demolition and Utility Improvements at Plant No. 2, Project No. P2-110; and, WHEREAS, CONSULTANT is qualified to provide the necessary services for Construction Support Services in connection with these requirements; and, WHEREAS, the SANITATION DISTRICT has adopted procedures in accordance with the SANITATION DISTRICT Board of Directors' Ordinance No. OCSD-47 Section 4.03(B)for the continuation of services and has proceeded in accordance with said procedures to perform this work; and, WHEREAS, at its regular meeting on January 25, 2017 the Board of Directors pursuant to SANITATION DISTRICT Board of Directors' Ordinance No. OCSD-47, approve this Agreement between the SANITATION DISTRICT and CONSULTANT. NOW, THEREFORE, in consideration of the promises and mutual benefits, which will result to the parties in carrying out the terms of this Agreement, it is mutually agreed as follows: 1. SCOPE OF WORK CONSULTANT agrees to furnish necessary professional and technical services to accomplish those project elements outlined in the Scope of Work attached hereto as "Attachment A", and by this reference made a part of this Agreement. A. The CONSULTANT shall be responsible for the professional quality, technical accuracy, completeness, and coordination of all design, drawings, specifications, and other services furnished by the CONSULTANT under this Agreement, including the work performed by its Subconsultants. Where approval by the SANITATION DISTRICT is indicated, it is understood to be conceptual approval only and does not relieve the CONSULTANT of responsibility for complying with all laws, codes, industry standards and liability for damages caused by errors, omissions, noncompliance with industry standards, and/or negligence on the part of the CONSULTANT or its Subconsultants. B. CONSULTANT is responsible for the quality of work prepared under this Agreement and shall ensure that all work is performed to in a manner consistent with the prevailing standards governing engineering practice. PCSA PROJECT NO.P2-110 Revised 0e231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 1 of 18 C. In the event that work is not performed to the satisfaction of the SANITATION DISTRICT and does not conform to the requirements of this Agreement or any applicable industry standards, the CONSULTANT shall, without additional compensation, promptly correct or revise any errors or deficiencies in its designs, drawings, specifications, or other services within the timeframe specified by the Project Engineer/Project Manager. The SANITATION DISTRICT may charge to CONSULTANT all costs, expenses and damages associated with any such corrections or revisions. D. All CADD drawings, figures, and other work shall be produced by CONSULTANTS and Subconsultants using the SANITATION DISTRICT standard software. Conversion of CADD work from any other non-standard CADD format to the SANITATION DISTRICT format shall not be acceptable in lieu of this requirement. Electronic files shall be subject to an acceptance period of sixty (60)calendar days during which the SANITATION DISTRICT shall perform appropriate acceptance tests. CONSULTANT shall correct any discrepancies or errors detected and reported within the acceptance period at no additional cost to the SANITATION DISTRICT. E. All professional services performed by the CONSULTANT, including but not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or composed by the CONSULTANT, pursuant to this Agreement, are for the sole use of the SANITATION DISTRICT, its agents and employees. Neither the documents nor their contents shall be released to any third parry without the prior written consent of the SANITATION DISTRICT. This provision does not apply to information that (a)was publicly known, or otherwise known to the CONSULTANT, at the time that it was disclosed to the CONSULTANT by the SANITATION DISTRICT, (b)subsequently becomes publicly known to the CONSULTANT other than through disclosure by the SANITATION DISTRICT. 2. COMPENSATION Total compensation shall be paid to CONSULTANT for services in accordance with the following provisions: A. Total Compensation Total compensation shall be in an amount not to exceed One Million Four Hundred Ninety Nine Thousand Eight Hundred Thirty-Nine Dollars ($1,499,839). Total compensation to CONSULTANT including burdened labor (salaries plus benefits), overhead, profit, direct costs, and Subconsultant(s)fees and costs shall not exceed the sum set forth in Attachment"C'- Fee Proposal. B. Labor As a portion of the total compensation to be paid to CONSULTANT, the SANITATION DISTRICT shall pay to CONSULTANT a sum equal to the burdened salaries (salaries plus benefits)actually paid by CONSULTANT PCSA PROJECT NO.P2-110 Revised 0e231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 2 of 18 charged on an hourly-rate basis to this project and paid to the personnel of CONSULTANT. Upon request of the SANITATION DISTRICT, CONSULTANT shall provide the SANITATION DISTRICT with certified payroll records of all employees' work that is charged to this project. C. Overhead As a portion of the total compensation to be paid to CONSULTANT, the SANITATION DISTRICT shall compensate CONSULTANT and Subconsultants for overhead at the rate equal to the percentage of burdened labor as specified in Attachment"C"- Fee Proposal. D. Profit Profit for CONSULTANT and Subconsultants shall be a percentage of consulting services fees (Burdened Labor and Overhead). When the consulting or subconsulting services amount is $250,000 or less, the maximum Profit shall be 10%. Between $250,000 and $2,500,000, the maximum Profit shall be limited by a straight declining percentage between 10% and 5%. For consulting or subconsulting services fees with a value greater than $2,500,000, the maximum Profit shall be 5%. Addenda shall be governed by the same maximum Profit percentage after adding consulting services fees. As a portion of the total compensation to be paid to CONSULTANT and Subconsultants, the SANITATION DISTRICT shall pay profit for all services rendered by CONSULTANT and Subconsultants for this project according to Attachment"C"- Fee Proposal. E. Subconsultants For any Subconsultant whose fees for services are greater than or equal to $100,000 (excluding out-of-pocket costs), CONSULTANT shall pay to Subconsultant total compensation in accordance with the Subconsultant amount specified in Attachment"C"- Fee Proposal. For any Subconsultant whose fees for services are less than $100,000, CONSULTANT may pay to Subconsultant total compensation on an hourly-rate basis per the attached hourly rate Schedule and as specified in the Scope of Work. The SANITATION DISTRICT shall pay to CONSULTANT the actual costs of Subconsultant fees and charges in an amount not to exceed the sum set forth in Attachment"C" - Fee Proposal. F. Direct Costs The SANITATION DISTRICT shall pay to CONSULTANT and Subconsultants the actual costs of permits and associated fees, travel and licenses for an amount not to exceed the sum set forth in Attachment"C"- Fee Proposal. The SANITATION DISTRICT shall also pay to CONSULTANT actual costs for equipment rentals, leases or purchases with prior approval of the SANITATION DISTRICT. Upon request, CONSULTANT shall provide to the SANITATION PCSA PROJECT NO.P2-110 Revised 0e231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 3 of 18 DISTRICT receipts and other documentary records to support CONSULTANT's request for reimbursement of these amounts, see Attachment"E"—Allowable Direct Costs. All incidental expenses shall be included in overhead pursuant to Section 2 -COMPENSATION above. G. Other Direct Costs Other Direct Costs incurred by CONSULTANT and its Contractor due to modifications in scope of work resulting from field investigations and field work required by Contract. These items may include special equipment, test equipment and tooling and other materials and services not previously identified. Refer to attachment"E"Allowable Direct Costs for payment information. H. Reimbursable Direct Costs The SANITATION DISTRICT will reimburse the CONSULTANT for reasonable travel and business expenses as described in this section and further described in Attachment"E"-Allowable Direct Costs to this Agreement. The reimbursement of the above mentioned expenses will be based on an "accountable plan" as considered by Internal Revenue Service (IRS). The plan includes a combination of reimbursements based upon receipts and a "per diem" component approved by IRS. The most recent schedule of the per diem rates utilized by the SANITATION DISTRICT can be found on the U.S. General Service Administration website at http://www.gsa.gov/portal/category/104711#. The CONSULTANT shall be responsible for the most economical and practical means of management of reimbursable costs inclusive but not limited to travel, lodging and meals arrangements. The SANITATION DISTRICT shall apply the most economic and practical method of reimbursement which may include reimbursements based upon receipts and/or"per diem" as deemed the most practical. CONSULTANT shall be responsible for returning to the SANITATION DISTRICT any excess reimbursements after the reimbursement has been paid by the SANITATION DISTRICT. Travel and travel arrangements—Any travel involving airfare, overnight stays or multiple day attendance must be approved by the SANITATION DISTRICT in advance. Local Travel is considered travel by the CONSULTANT within the SANITATION DISTRICT general geographical area which includes Orange, Los Angeles, Ventura, San Bernardino, Riverside, San Diego, Imperial and Kern Counties. Automobile mileage is reimbursable if CONSULTANT is required to utilize personal vehicle for local travel. Lodging—Overnight stays will not be approved by the SANITATION DISTRICT for local travel. However, under certain circumstances overnight stay may be allowed at the discretion of the SANITATION DISTRICT based on reasonableness of meeting schedules and the amount of time required for travel by the PCSA PROJECT NO.P2-110 Revised 0e231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 4 of 18 CONSULTANT. Such determination will be made on a case-by-case basis and at the discretion of the SANITATION DISTRICT. Travel Meals— Per-diem rates as approved by IRS shall be utilized for travel meals reimbursements. Per diem rates shall be applied to meals that are appropriate for travel times. Receipts are not required for the approved meals. Additional details related to the reimbursement of the allowable direct costs are provided in the Attachment"E" -Allowable Direct Costs of this Agreement. I. Limitation of Costs If, at any time, CONSULTANT estimates the cost of performing the services described in CONSULTANT's Proposal will exceed the not-to-exceed amount of the Agreement, including approved additional compensation, CONSULTANT shall notify the SANITATION DISTRICT immediately, and in writing. This written notice shall indicate the additional amount necessary to complete the services. Any cost incurred in excess of the approved not-to-exceed amount, without the express written consent of the SANITATION DISTRICT's authorized representative shall be at CONSULTANT's own risk. This written notice shall be provided separately from, and in addition to any notification requirements contained in the CONSULTANT's invoice and monthly progress report. Failure to notify the SANITATION DISTRICT that the services cannot be completed within the authorized not-to-exceed amount is a material breach of this Agreement. 3. REALLOCATION OF TOTAL COMPENSATION The SANITATION DISTRICT, by its Director of Engineering, shall have the right to approve a reallocation of the incremental amounts constituting the total compensation, provided that the total compensation is not increased. 4. PAYMENT A. Monthly Invoice: CONSULTANT shall include in its monthly invoice, a detailed breakdown of costs associated with the performance of any corrections or revisions of the work for that invoicing period. CONSULTANT shall allocate costs in the same manner as it would for payment requests as described in this Section of the Agreement. CONSULTANT shall warrant and certify the accuracy of these costs and understand that submitted costs are subject to Section 11 -AUDIT PROVISIONS. B. CONSULTANT may submit monthly or periodic statements requesting payment for those items included in Section 2- COMPENSATION hereof in the format as required by the SANITATION DISTRICT. Such requests shall be based upon the amount and value of the work and services performed by CONSULTANT under this Agreement and shall be prepared by CONSULTANT and accompanied by such supporting data, including a detailed breakdown of all costs incurred and project element work performed during the period covered by the statement, as may be required by the SANITATION DISTRICT. PCSA PROJECT NO.P2-110 Revised 0e231e CONSOLIDATED DEMOUTIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 5 of 18 Upon approval of such payment request by the SANITATION DISTRICT, payment shall be made to CONSULTANT as soon as practicable of one hundred percent (100%)of the invoiced amount on a per-project-element basis. If the SANITATION DISTRICT determines that the work under this Agreement or any specified project element hereunder, is incomplete and that the amount of payment is in excess of: i. The amount considered by the SANITATION DISTRICT's Director of Engineering to be adequate for the protection of the SANITATION DISTRICT; or ii. The percentage of the work accomplished for each project element. He may, at his discretion, retain an amount equal to that which insures that the total amount paid to that date does not exceed the percentage of the completed work for each project element or the project in its entirety. C. CONSULTANT may submit periodic payment requests for each 30-day period of this Agreement for the profit as set forth in Section 2 -COMPENSATION above. Said profit payment request shall be proportionate to the work actually accomplished to date on a per-project-element basis. In the event the SANITATION DISTRICT's Director of Engineering determines that no satisfactory progress has been made since the prior payment, or in the event of a delay in the work progress for any reason, the SANITATION DISTRICT shall have the right to withhold any scheduled proportionate profit payment. D. Upon satisfactory completion by CONSULTANT of the work called for under the terms of this Agreement, and upon acceptance of such work by the SANITATION DISTRICT, CONSULTANT will be paid the unpaid balance of any money due for such work, including any retained percentages relating to this portion of the work. E. Upon satisfactory completion of the work performed hereunder and prior to final payment under this Agreement for such work, or prior settlement upon termination of this Agreement, and as a condition precedent thereto, CONSULTANT shall execute and deliver to the SANITATION DISTRICT a release of all claims against the SANITATION DISTRICT arising under or by virtue of this Agreement other than such claims, if any, as may be specifically exempted by CONSULTANT from the operation of the release in stated amounts to be set forth therein. F. Pursuant to the California False Claims Act(Government Code Sections 12650- 12655), any CONSULTANT that knowingly submits a false claim to the SANITATION DISTRICT for compensation under the terms of this Agreement may be held liable for treble damages and up to a ten thousand dollars ($10,000) civil penalty for each false claim submitted. This Section shall also be binding on all Subconsultants. A CONSULTANT or Subconsultant shall be deemed to have submitted a false claim when the CONSULTANT or Subconsultant: a) knowingly presents or causes to be presented to an officer or employee of the SANITATION DISTRICT PCSA PROJECT NO.P2-110 Revised 062316 CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 6 of 18 a false claim or request for payment or approval; b) knowingly makes, uses, or causes to be made or used a false record or statement to get a false claim paid or approved by the SANITATION DISTRICT; c)conspires to defraud the SANITATION DISTRICT by getting a false claim allowed or paid by the SANITATION DISTRICT; d) knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to the SANITATION DISTRICT; or e) is a beneficiary of an inadvertent submission of a false claim to the SANITATION DISTRICT, and fails to disclose the false claim to the SANITATION DISTRICT within a reasonable time after discovery of the false claim. 5. CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS (DIR) REGISTRATION AND RECORD OF WAGES A. To the extent CONSULTANT's employees and/or Subconsultants who will perform Work during the design and preconstruction phases of a construction contract for which Prevailing Wage Determinations have been issued by the DIR and as more specifically defined under Labor Code Section 1720 at sec, CONSULTANT and Subconsultants shall comply with the registration requirements of Labor Code Section 1725.5. Pursuant to Labor Code Section 1771.4, the Work is subject to compliance monitoring and enforcement by the DIR. B. The CONSULTANT and Subconsultants shall maintain accurate payroll records and shall comply with all the provisions of Labor Code Section 1776, and shall submit payroll records to the Labor Commissioner pursuant to Labor Code Section 1771.4(a) (3). Penalties for non-compliance with the requirements of Section 1776 may be deducted from progress payments per Section 1776. C. Pursuant to Labor Code Section 1776, the CONSULTANT and Subconsultants shall furnish a copy of all certified payroll records to SANITATION DISTRICT and/or general public upon request, provided the public request is made through SANITATION DISTRICT, the Division of Apprenticeship Standards or the Division of Labor Enforcement of the Department of Industrial Relations. D. The CONSULTANT and Subconsultants shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations Section 16461(e). 6. DOCUMENT OWNERSHIP—SUBSEQUENT CHANGES TO PLANS AND SPECIFICATIONS A. Ownership of Documents for the Professional Services performed. All documents, including but not limited to, original plans, studies, sketches, drawings, computer printouts and disk files, and specifications prepared in connection with or related to the Scope of Work or Professional Services, shall be the property of the SANITATION DISTRICT. The SANITATION DISTRICT's ownership of these documents includes use of, reproduction or reuse of and all incidental rights, whether or not the work for which they were prepared has been performed. The SANITATION DISTRICT ownership entitlement arises upon PCSA PROJECT NO.P2-110 Revised 0e231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 7 of 18 payment or any partial payment for work performed and includes ownership of any and all work product completed prior to that payment. This Section shall apply whether the CONSULTANT's Professional Services are terminated: a) by the completion of the Agreement, or b) in accordance with other provisions of this Agreement. Notwithstanding any other provision of this paragraph or Agreement, the CONSULTANT shall have the right to make copies of all such plans, studies, sketches, drawings, computer printouts and disk files, and specifications. B. CONSULTANT shall not be responsible for damage caused by subsequent changes to or uses of the plans or specifications, where the subsequent changes or uses are not authorized or approved by CONSULTANT, provided that the service rendered by CONSULTANT was not a proximate cause of the damage. 7. INSURANCE A. General i. Insurance shall be issued and underwritten by insurance companies acceptable to the SANITATION DISTRICT. ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial Rating of at least Class Vlll, or better, in accordance with the most current A.M. Best's Guide Rating. However, the SANITATION DISTRICT will accept State Compensation Insurance Fund, for the required policy of Worker's Compensation Insurance subject to the SANITATION DISTRICT's option to require a change in insurer in the event the State Fund financial rating is decreased below"B". Further, the SANITATION DISTRICT will require CONSULTANT to substitute any insurer whose rating drops below the levels herein specified. Said substitution shall occur within twenty(20) days of written notice to CONSULTANT, by the SANITATION DISTRICT or its agent. iii. Coverage shall be in effect prior to the commencement of any work under this Agreement. B. General Liability The CONSULTANT shall maintain during the life of this Agreement, including the period of warranty, Commercial General Liability Insurance written on an occurrence basis providing the following minimum limits of liability coverage: Two Million Dollars ($2,000,000) per occurrence with Two Million Dollars ($2,000,000)aggregate. Said insurance shall include coverage for the following hazards: Premises-Operations, blanket contractual liability (for this Agreement), products liability/completed operations (including any product manufactured or assembled), broad form property damage, blanket contractual liability, independent contractors liability, personal and advertising injury, mobile equipment, owners and contractors protective liability, and cross liability and severability of interest clauses. A statement on an insurance certificate will not be accepted in lieu of the actual additional insured endorsement(s). If requested by SANITATION DISTRICT and applicable, XCU coverage (Explosion, Collapse and Underground) and Riggers/On Hook Liability must be included in the PCSA PROJECT NO.P2-110 Revised 0e231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 8 of 18 General Liability policy and coverage must be reflected on the submitted Certificate of Insurance. C. Umbrella Excess Liability The minimum limits of general liability and Automotive Liability Insurance required, as set forth herein, shall be provided for through either a single policy of primary insurance or a combination of policies of primary and umbrella excess coverage. Umbrella excess liability coverage shall be issued with limits of liability which, when combined with the primary insurance, will equal the minimum limits for general liability and automotive liability. D. AutomotiveNehicle liability Insurance The CONSULTANT shall maintain a policy of Automotive Liability Insurance on a comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and other vehicles providing the following minimum limits of liability coverage: Combined single limit of Two Million Dollars ($2,000,000) or alternatively, Two Million Dollars ($2,000,000) per person for bodily injury and One Million Dollars ($1,000,000) per accident for property damage. A statement on an insurance certificate will not be accepted in lieu of the actual additional insured endorsement. E. Worker's Compensation Insurance The CONSULTANT shall provide such Workers' Compensation Insurance as required by the Labor Code of the State of California in the amount of the statutory limit, including Employer's Liability Insurance with a minimum limit of One Million Dollars ($1,000,000) per occurrence. Such Worker's Compensation Insurance shall be endorsed to provide for a waiver of subrogation in favor of the SANITATION DISTRICT. A statement on an insurance certificate will not be accepted in lieu of the actual endorsements unless the insurance carrier is State of California Insurance Fund and the identifier"SCIF" and endorsement numbers 2570 and 2065 are referenced on the certificate of insurance. If an exposure to Jones Act liability may exist, the insurance required herein shall include coverage for Jones Act claims. F. Errors and Omissions/Professional Liability CONSULTANT shall maintain in full force and effect, throughout the term of this Agreement, standard industry form professional negligence errors and omissions insurance coverage in an amount of not less than Five Million Dollars ($5,000,000)with limits in accordance with the provisions of this Paragraph. If the policy of insurance is written on a "claims made" basis, said policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of five (5) years from the date of the completion of the services hereunder. In the event of termination of said policy during this period, CONSULTANT shall obtain continuing insurance coverage for the prior acts or omissions of CONSULTANT during the course of performing services under the term of this PCSA PROJECT NO.P2-110 Revised 662316 CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 9 of 18 Agreement. Said coverage shall be evidenced by either a new policy evidencing no gap in coverage or by separate extended "tail" coverage with the present or new carrier. In the event the present policy of insurance is written on an "occurrence" basis, said policy shall be continued in full force and effect during the term of this Agreement or until completion of the services provided for in this Agreement, whichever is later. In the event of termination of said policy during this period, new coverage shall be obtained for the required period to insure for the prior acts of CONSULTANT during the course of performing services under the term of this Agreement. CONSULTANT shall provide to the SANITATION DISTRICT a certificate of insurance in a form acceptable to the SANITATION DISTRICT indicating the deductible or self-retention amounts and the expiration date of said policy, and shall provide renewal certificates not less than ten (10)days prior to the expiration of each policy term. G. Proof of Coverage The CONSULTANT shall furnish the SANITATION DISTRICT with original certificates and amendatory endorsements effecting coverage. Said policies and endorsements shall conform to the requirements herein stated. All certificates and endorsements are to be received and approved by the SANITATION DISTRICT before work commences. The SANITATION DISTRICT reserves the right to require complete, certified copies of all required insurance policies, including endorsements, effecting the coverage required, at any time. The following are approved forms that must be submitted as proof of coverage: • Certificate of Insurance ACORD Form 25 (5/2010)or equivalent. • Additional Insurance (ISO Form) CG2010 11 65 or (General Liability) The combination of(ISO Forms) CG 2010 10 01 and CG 2037 10 01 All other Additional Insured endorsements must be submitted for approval by the SANITATION DISTRICT, and the SANITATION DISTRICT may reject alternatives that provide different or less coverage to the SANITATION DISTRICT. • Additional Insured Submit endorsement provided by carrier for the (Auto Liability) SANITATION DISTRICT approval. • Waiver of Subrogation State Compensation Insurance Fund Endorsement No. 2570 or equivalent. • Cancellation Notice State Compensation Insurance Fund Endorsement No. 2065 or equivalent. PCSA PROJECT NO.P2-110 Revised ee231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 10 of 18 H. Cancellation Notice Each insurance policy required herein shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30)days' prior written notice. The Cancellation Section of ACORD Form 25 (5/2010) shall state the required thirty (30) days' written notification. The policy shall not terminate, nor shall it be cancelled, nor the coverage reduced until thirty(30) days after written notice is given to the SANITATION DISTRICT except for nonpayment of premium, which shall require not less than ten (10) days written notice to the SANITATION DISTRICT. Should there be changes in coverage or an increase in deductible or SIR amounts, the CONSULTANT and its insurance broker/agent shall send to the SANITATION DISTRICT a certified letter which includes a description of the changes in coverage and/or any increase in deductible or SIR amounts. The certified letter must be sent to the attention of Risk Management, Div. 260, and shall be received by the SANITATION DISTRICT not less than thirty (30)days prior to the effective date of the change(s) if the change would reduce coverage or increase deductibles or SIR amounts or otherwise reduce or limit the scope of insurance coverage provided to the SANITATION DISTRICT. I. Primary Insurance All liability policies shall contain a Primary and Non Contributory Clause. Any other insurance maintained by the SANITATION DISTRICT shall be excess and not contributing with the insurance provided by CONSULTANT. J. Separation of Insured All liability policies shall contain a "Separation of Insureds" clause. K. Non-Limiting (if applicable) Nothing in this document shall be construed as limiting in any way, nor shall it limit the indemnification provision contained in this Agreement, or the extent to which CONSULTANT may be held responsible for payment of damages to persons or property. L. Deductibles and Self-Insured Retentions Any deductible and/or self-insured retention must be declared to the SANITATION DISTRICT on the Certificate of Insurance. All deductibles and/or self-insured retentions require approval by the SANITATION DISTRICT. At the option of the SANITATION DISTRICT, either: the insurer shall reduce or eliminate such deductible or self-insured retention as respects the SANITATION DISTRICT; or the CONSULTANT shall provide a financial guarantee satisfactory to the SANITATION DISTRICT guaranteeing payment of losses and related investigations, claim administration and defense expenses. PCSA PROJECT NO.P2-110 Revised ee231e CONSOLIDATED DEMOUTIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 11 of 18 M. Defense Costs Liability policies shall have a provision that defense costs for all insureds and additional insureds are paid in addition to and do not deplete any policy limits. N. Subconsultants The CONSULTANT shall be responsible to establish insurance requirements for any Subconsultant hired by the CONSULTANT. The insurance shall be in amounts and types reasonably sufficient to deal with the risk of loss involving the Subconsultant's operations and work. O. Limits Are Minimums If the CONSULTANT maintains higher limits than any minimums shown above, then SANITATION DISTRICT requires and shall be entitled to coverage for the higher limits maintained by CONSULTANT. 8. SCOPE CHANGES In the event of a change in the Scope of Work, requested by SANITATION DISTRICT, the parties hereto shall execute an amendment to this Agreement setting forth with particularity all terms of the new Agreement, including but not limited to any additional CONSULTANT's fees. 9. PROJECT TEAM AND SUBCONSULTANTS CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this Agreement, the names and full description of all Subconsultants and CONSULTANT's project team members anticipated to be used on this project by CONSULTANT. CONSULTANT shall include a description of the scope of work to be done by each Subconsultant and each CONSULTANT's project team member. CONSULTANT shall include the respective compensation amounts for CONSULTANT and each Subconsultant on a per-project-element basis, broken down as indicated in Section 2- COMPENSATION. There shall be no substitution of the listed Subconsultants and CONSULTANT's project team members without prior written approval by the SANITATION DISTRICT. 10. ENGINEERING REGISTRATION The CONSULTANT's personnel are comprised of registered engineers and a staff of specialists and draftsmen in each department. The firm itself is not a registered engineer but represents and agrees that wherever in the performance of this Agreement requires the services of a registered engineer, such services hereunder will be performed under the direct supervision of registered engineers. PCSA PROJECT NO.P2-110 Revised ee231e CONSOLIDATED DEMOUTIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 12 of 18 11. AUDIT PROVISIONS A. SANITATION DISTRICT retains the reasonable right to access, review, examine, and audit, any and all books, records, documents and any other evidence of procedures and practices that the SANITATION DISTRICT determines are necessary to discover and verify that the CONSULTANT is in compliance with all requirements under this Agreement. The CONSULTANT shall include the SANITATION DISTRICT's right as described above, in any and all of their subcontracts, and shall ensure that these rights are binding upon all Subconsultants. B. SANITATION DISTRICT retains the right to examine CONSULTANT's books, records, documents and any other evidence of procedures and practices that the SANITATION DISTRICT determines are necessary to discover and verify all direct and indirect costs, of whatever nature, which are claimed to have been incurred, or anticipated to be incurred or to ensure CONSULTANT's compliance with all requirements under this Agreement during the term of this Agreement and for a period of three (3)years after its termination. C. CONSULTANT shall maintain complete and accurate records in accordance with generally accepted industry standard practices and the SANITATION DISTRICT's policy. The CONSULTANT shall make available to the SANITATION DISTRICT for review and audit, all project related accounting records and documents, and any other financial data within 15 days after receipt of notice from the SANITATION DISTRICT. Upon SANITATION DISTRICT's request, the CONSULTANT shall submit exact duplicates of originals of all requested records to the SANITATION DISTRICT. If an audit is performed, CONSULTANT shall ensure that a qualified employee of the CONSULTANT will be available to assist SANITATION DISTRICT's auditor in obtaining all project related accounting records and documents, and any other financial data. 12. LEGAL RELATIONSHIP BETWEEN PARTIES The legal relationship between the parties hereto is that of an independent contractor and nothing herein shall be deemed to make CONSULTANT an employee of the SANITATION DISTRICT. 13. NOTICES All notices hereunder and communications regarding the interpretation of the terms of this Agreement, or changes thereto, shall be effected by delivery of said notices in person or by depositing said notices in the U.S. mail, registered or certified mail, return receipt requested, postage prepaid. Notices shall be mailed to the SANITATION DISTRICT at: ORANGE COUNTY SANITATION DISTRICT 10844 Ellis Avenue Fountain Valley, CA 92708-7018 Attention: Natasha Dubrovski, Principal Contracts Administrator Copy: Victoria Pilko, Project Manager PCSA PROJECT NO.P2-110 Revised ee231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 13 of 18 Notices shall be mailed to CONSULTANT at: STANTEC CONSULTING SERVICES, INC. 300 North Lake Avenue Suite 400 Pasadena, CA 91101 Attention: Patrick Stahl, PE, Project Manager All communication regarding the Scope of Work, will be addressed to the Project Manager. Direction from other SANITATION DISTRICT's staff must be approved in writing by the SANITATION DISTRICT's Project Manager prior to action from the CONSULTANT. 14. TERMINATION The SANITATION DISTRICT may terminate this Agreement at any time, without cause, upon giving thirty(30) days written notice to CONSULTANT. In the event of such termination, CONSULTANT shall be entitled to compensation for work performed on a prorated basis through and including the effective date of termination. CONSULTANT shall be permitted to terminate this Agreement upon thirty (30)days written notice only if CONSULTANT is not compensated for billed amounts in accordance with the provisions of this Agreement, when the same are due. Notice of termination shall be mailed to the SANITATION DISTRICT and/or CONSULTANT in accordance with Section 13- NOTICES. 15. DOCUMENTS AND STUDY MATERIALS The documents and study materials for this project shall become the property of the SANITATION DISTRICT upon the termination or completion of the work. CONSULTANT agrees to furnish to the SANITATION DISTRICT copies of all memoranda, correspondence, computation and study materials in its files pertaining to the work described in this Agreement, which is requested in writing by the SANITATION DISTRICT. 16. COMPLIANCE CONSULTANT certifies by the execution of this Agreement that it pays employees not less than the minimum wage as defined by law, and that it does not discriminate in its employment with regard to race, color, religion, sex or national origin; that it is in compliance with all federal, state and local directives and executive orders regarding non-discrimination in employment; and that it agrees to demonstrate positively and aggressively the principle of equal opportunity in employment. 17. AGREEMENT EXECUTION AUTHORIZATION Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual executing this document by and on behalf of each party is a person duly authorized to execute agreements for that party. PCSA PROJECT NO.P2-110 Revised ee231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 14 of 18 18. DISPUTE RESOLUTION In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"), or similar organization or entity conducting alternate dispute resolution services. 19. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS If any action at law or in equity or if any proceeding in the form of an Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which it may be entitled. 20. PROGRESS REPORTS Monthly progress reports shall be submitted for review by the tenth day of the following month and must include as a minimum: 1) current activities, 2)future activities, 3) potential items that are not included in the Scope of Work, 4) concerns and possible delays, 5) percentage of completion, and 6) budget status. 21. WARRANTY CONSULTANT shall perform its services in accordance with generally accepted industry and professional standards. If, within the 12-month period following completion of its services, the SANITATION DISTRICT informs CONSULTANT that any part of the services fails to meet those standards, CONSULTANT shall, within the time prescribed by the SANITATION DISTRICT, take all such actions as are necessary to correct or complete the noted deficiency(ies). 22. INDEMNIFICATION To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at CONSULTANT's sole cost and expense and with legal counsel approved by the SANITATION DISTRICT, which approval shall not be unreasonably withheld), protect and hold harmless the SANITATION DISTRICT and all of SANITATION DISTRICT's officers, directors, employees, consultants, and agents (collectively the "Indemnified Parties"), from and against any and all claims, damages, liabilities, causes of action, suits, arbitration awards, losses,judgments, fines, penalties, costs and expenses including without limitation, attorneys'fees, disbursements and court costs, and all other professional, expert or consultants fees and costs and the SANITATION DISTRICT's general and administrative expenses (individually, a "Claim", or collectively, "Claims") which may arise from or are in any manner related, directly or indirectly, to any work performed, or any operations, activities, or services provided by CONSULTANT in carrying out its obligations under this Agreement to the extent of the negligent, recklessness and/or willful misconduct of CONSULTANT, its principals, officers, agents, employees, CONSULTANT's suppliers, CONSULTANT, subconsultants, subcontractors, and/or anyone employed directly or indirectly by any of them, regardless of any contributing negligence or strict liability of an Indemnified Party. Notwithstanding the foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the PCSA PROJECT NO.P2-110 Revised ee231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 15 of 18 Indemnified Parties from any Claim arising solely from: (A)the sole or active negligence or willful misconduct of the Indemnified Parties; or (B)a natural disaster or other act of God, such as an earthquake; or (C)the independent action of a third party who is neither one of the Indemnified Parties nor the CONSULTANT, nor its principal, officer, agent, employee, nor CONSULTANT's supplier, CONSULTANT, subconsultant, subcontractor, nor anyone employed directly or indirectly by any of them. Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest extent permitted by law, indemnify the Indemnified Parties, from Claims arising from more than one cause if any such cause taken alone would otherwise result in the obligation to indemnify hereunder. CONSULTANT's liability for indemnification hereunder is in addition to any liability CONSULTANT may have to the SANITATION DISTRICT for a breach by CONSULTANT of any of the provisions of this Agreement. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit CONSULTANT's indemnification obligation or other liability hereunder. The terms of this Agreement are contractual and the result of negotiation between the parties hereto. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654)that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. 23. DUTY TO DEFEND The duty to defend hereunder is wholly independent of and separate from the duty to indemnify and such duty to defend shall exist regardless of any ultimate liability of CONSULTANT and shall be consistent with Civil Code Section 2782.8. Such defense obligation shall arise immediately upon presentation of a Claim by any person if, without regard to the merit of the Claim, such Claim could potentially result in an obligation to indemnity one or more Indemnified Parties, and upon written notice of such Claim being provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the payment or advance of defense costs by any Indemnified Party shall not be a condition precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In the event a final judgment, arbitration, award, order, settlement, or other final resolution expressly determines that the claim did not arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT, to any extent, then the DISTRICT will reimburse CONSULTANT for the reasonable costs of defending the Indemnified Parties against such claims. CONSULTANT's indemnification obligation hereunder shall survive the expiration or earlier termination of this Agreement until such time as action against the Indemnified Parties for such matter indemnified hereunder is fully and finally barred by the applicable statute of limitations. PCSA PROJECT NO.P2-110 Revised 062316 CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 16 of 18 24. CONSULTANT PERFORMANCE The CONSULTANT's performance shall be evaluated by the SANITATION DISTRICT. A copy of the evaluation shall be sent to the CONSULTANT for comment. The evaluation, together with the comments, shall be retained by the SANITATION DISTRICT and may be considered in future CONSULTANT selection processes. 25. CLOSEOUT When the SANITATION DISTRICT determines that all Work authorized under the Agreement is fully complete and that the SANITATION DISTRICT requires no further work from CONSULTANT, or the Agreement is otherwise terminated or expires in accordance with the terms of the Agreement, the SANITATION DISTRICT shall give the Consultant written notice that the Agreement will be closed out. CONSULTANT shall submit all outstanding billings, work submittals, deliverables, reports or similarly related documents as required under the Agreement within thirty (30)days of receipt of notice of Agreement closeout. Upon receipt of CONSULTANT's submittals, the SANITATION DISTRICT shall commence a closeout audit of the Agreement and will either: i. Give the CONSULTANT a final Agreement Acceptance: or ii. Advise the CONSULTANT in writing of any outstanding item or items which must be furnished, completed, or corrected at the CONSULTANT's cost. CONSULTANT shall be required to provide adequate resources to fully support any administrative closeout efforts identified in this Agreement. Such support must be provided within the timeframe requested by the SANITATION DISTRICT. Notwithstanding the final Agreement Acceptance the CONSULTANT will not be relieved of its obligations hereunder, nor will the CONSULTANT be relieved of its obligations to complete any portions of the work, the non-completion of which were not disclosed to the SANITATION DISTRICT (regardless of whether such nondisclosures were fraudulent, negligent, or otherwise); and the CONSULTANT shall remain obligated under all those provisions of the Agreement which expressly or by their nature extend beyond and survive final Agreement Acceptance. Any failure by the SANITATION DISTRICT to reject the work or to reject the CONSULTANT's request for final Agreement Acceptance as set forth above shall not be deemed to be acceptance of the work by the SANITATION DISTRICT for any purpose nor imply acceptance of, or agreement with, the CONSULTANT's request for final Agreement Acceptance. 26. ENTIRE AGREEMENT This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. PCSA PROJECT NO.P2-110 Revised ee231e CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 17 of 18 IN WITNESS WHEREOF, this Agreement has been executed in the name of the SANITATION DISTRICT, by its officers thereunto duly authorized, and CONSULTANT as of the day and year first above written. CONSULTANT: STANTEC CONSULTING SERVICES, INC. By Date Printed Name &Title ORANGE COUNTY SANITATION DISTRICT By Chair, Board of Directors Date By Kelly A. Lore Date Clerk of the Board By Marc Dubois Date Contracts, Purchasing and Materials Management Manager Attachments: Attachment"A" Scope of Work Attachment'B" Itemization of Anticipated Submittals Attachment"C' Fee Proposal Attachment"D" Cost Matrix and Summary Attachment"E" Allowable Direct Costs Attachment"F" Hourly Rate Schedule for Minor Subconsultant Attachment"G" Acknowledgement of PCSA(Not Attached) NKD:yp PCSA PROJECT NO.P2-110 Revised 062316 CONSOLIDATED DEMOLITIAN AND UTILITY IMPROVEMENTS AT PLANT NO.2 Page 18 of 18 WOODRUFF, SFRADLIN&SMART CLOSED SESSION 1 555 AN,oN BOULeVnrto, SUIT. 1200 Cos•A MesA, CA 92626-7670 (714)556-0WO MEMORANDUM TO: Hon. Chair and Members of the Orange County Sanitation District Board of Directors FROM: Bradley R. Hogin, Esq. General Counsel DATE: January 17,2017 RE: Closed Session Items The Board of Directors desires to hold a closed session on January 25, 2017 for the purpose of conferring with its legal counsel regarding existing litigation to which the District is a parry. The title of the case is Klean Waters, Inc. v. Orange County Sanitation District, United States District Court, Central District of California, Southern Division, Case No. 8:15-cv-00627. The closed session will be held pursuant to the authority of California Government Code Section 54956.9(d)(1). Respectfully submitted, By Bradle . Hogin, Qeneral Counsel 1179357.1 •T WooDRIJFF,.spRADLIN&SMART 555 ANTON BOULEVARD, BUITC1200 C.sIA MNsA, CA 92626-7670 (714)556-0000 MEMORANDUM TO: Hon. Chair and Members of the Orange County Sanitation District Board of Directors FROM: Bradley R. Hogin, Esq. General Counsel DATE: January 17,2017 RE: Closed Session Items The Board of Directors desires to hold a closed session on January 25, 2017 for the purpose of conferring with its legal counsel regarding existing litigation to which the District is a parry. The title of the case is Klean Waters, Inc. v. Orange County Sanitation District, United States District Court, Central District of California, Southern Division, Case No. 8:15-cv-01498. The closed session will be held pursuant to the authority of California Government Code Section 54956.9(d)(1). Respectfully submitted, By Bradle . Hogin, Qeneral Counsel 1179357.1 •T WooDRDFF,.SFRADLIN&SMART . . CLOSED SESSION 2 555 ANTON BOULEVARD, BUITC1200 C.sIA MNsA, CA 92626-7670 (714)556-0000 MEMORANDUM TO: Hon. Chair and Members of the Orange County Sanitation District Board of Directors FROM: Bradley R. Hogin, Esq. General Counsel DATE: January 17,2017 RE: Closed Session Items The Board of Directors desires to hold a closed session on January 25, 2017 for the purpose of conferring with its legal counsel regarding existing litigation to which the District is a party. The title of the case is City of Los Angeles, et al. v. County of Kern, Tulare County Superior Court, Case No. 242057. The closed session will be held pursuant to the authority of California Government Code Section 54956.9(d)(1). Respectfully submitted, By Bradle . Hogin, (}eneral Counsel 1179357.1 ►` WooDROFF,.SFRADLIN&SMART CLOSED SESSION 3 555 ANTON BOULEVARD, BUTTE1200 COSTA MN9A, CA 92626-7670 (714)556-0000 MEMORANDUM TO: Hon. Chair and Members of the Orange County Sanitation District Board of Directors FROM: Bradley R. Hogin, Esq. General Counsel DATE: January 19,2017 RE: Closed Session Items The Board of Directors desires to hold a closed session on January 25, 2017 for the purpose of conferring with its legal counsel regarding anticipated litigation. Existing facts and circumstances reflect a significant exposure to litigation against the District. The closed session will be held pursuant to the authority of California Government Code Section 54956.9(d)(2). The facts and circumstances are as follows: Melissa Forman-Woodbridge is claiming damages related to unpaid medical benefits. Respectfully submitted, By: Bradlej R. Hogin, eneral Counsel 1165639.1 •T WOODRUFF,.spRADLIN&SMART 555 ANTON BOULEVARD, BUITC1200 C.sIA MNsA, CA 92626-7670 (714)556-0000 MEMORANDUM TO: Hon. Chair and Members of the Orange County Sanitation District Board of Directors FROM: Bradley R. Hogin, Esq. General Counsel DATE: January 19,2017 RE: Closed Session Items The Board of Directors desires to hold a closed session on January 25, 2017 for the purpose of conferring with its legal counsel regarding anticipated litigation. Existing facts and circumstances reflect a significant exposure to litigation against the District. The closed session will be held pursuant to the authority of California Govemment Code Section 54956.9(d)(2). The facts and circumstances are as follows: Roy Hendy is claiming damages related to unpaid medical benefits. Respectfully submitted, By: Bradlej R. Hogin, eneral Counsel 1165639.1 WOODRUFF SPRADLIN&SMART CLOSED SESSION 4 • A . - P . , . . . . 555 ANTON BOULEVARD, SUITE 1200 COSTA MESA, CA 92626-7670 (714)556-7000 MEMORANDUM TO: Hon. Chair and Members of the Orange County Sanitation District Board of Directors FROM: Bradley R. Hogin, Esq. General Counsel DATE: January 17,2017 RE: Closed Session Items The Board of Directors will hold a closed session on January 25,2017 for the purpose of conferring with its negotiators regarding the purchase of real property. The negotiating parties and property are as follows: Bayside Village Marina LLC, 300 East Coast Highway,Newport Beach, CA,APN No.440-132-60.The District's negotiators are General Manager,Jim Herberg;Assistant General Manager,Bob Ghirelli;Director of Finance,Lorenzo Tyner;Director of Engineering,Rob Thompson; Engineering Managers,Kathy Millea and Jeff Mohr; and CIP Project Manager,Adam Nazaroff. Said closed session will be held pursuant to authority of California Government Code Section 54956.8. Respectfully submitted, By. /J 6- Bradley 6- Bradley R. Hogin, 46eneral Counsel 1206984.1 CLOSED SESSION 5 WOODRUFF SPRADIJN&SMART 555 ANTON BOULEVARD, SUITE 1200 COSTA MESA, CA 92626-7670 (714)556-7000 MEMORANDUM TO: Hon. Chair and Members of the Orange County Sanitation District Board of Directors FROM: Bradley R. Hogin, Esq. General Counsel DATE: January 17,2017 RE: Closed Session Items The Board of Directors will hold a closed session on January 25,2017 for the purpose of conferring with its negotiators regarding the purchase of real property. The negotiating parties and properties are as follows: Valley Business Park, APN Nos. 156-165-05, 156-165-06, 156-163-07; DK-USA LLC, APN No.156-165-04; Fountain Valley Industrial Parcel 13,APN No.156-165-08; Sukut Real Properties LLC, APN Nos. 156-163-09, 156-163-10, 156-163-11; The Ins Trust Shabtai,Nevon, APN No. 156-163-16; The his Trust, APN No. 156-154-07; K& A Investments LP,APN No. 156-154-08;Fountain Valley Star LLC,APN No. 156-154-06; TN Sheet Metal Inc., APN No. 156-163-12; 18401 Bandilier LLC,APN No. 156-163-13;Phone Lilly Lin-Lin TR,APN No. 156-154-05; JDK Partners, APN No. 156-163-14; Chandler Real Properties, APN No. 156- 163-15; Ellis Avenue LLC, APN No. 156-154-04; SFII Fountain Valley LLC, APN No. 156- 151-03; and 7311 Doig Drive, Garden Grove, CA, APN No. 131-651-20. The District's negotiators are Jim Herberg, Rob Thompson, Kathy Millen and Jeff Mohr, Wendy Sevenandt, Kevin Turner and John Gallivan, Cushman and Wakefield. Said closed session will be held pursuant to authority of California Government Code Section 54956.8. Respectfully submitted, By. /f BradleY R. Hogin, Vieneral Counsel 11921611 ORANGE COUNTY SANITATION DISTRICT Agenda Terminology Glossary Glossary of Terms and Abbreviations AQMD Air Quality Management District ASCE American Society of Civil Engineers BOD Biochemical Oxygen Demand CARB California Air Resources Board CASA California Association of Sanitation Agencies CCTV Closed Circuit Television CEQA California Environmental Quality Act CIP Capital Improvement Program CRWQCB California Regional Water Quality Control Board CWA Clean Water Act CWEA California Water Environment Association EIR Environmental Impact Report EMT Executive Management Team EPA U.S. Environmental Protection Agency FOG Fats, Oils, and Grease gpd Gallons per day GWR System Groundwater Replenishment System (also called GWRS) ICS Incident Command System IERP Integrated Emergency Control Plan LOS Level of Service MGD Million gallons per day NACWA National Association of Clean Water Agencies NPDES National Pollutant Discharge Elimination System NWRI National Water Research Institute O&M Operations and Maintenance OCCOG Orange County Council of Governments OCHCA Orange County Health Care Agency OCSD Orange County Sanitation District OCWD Orange County Water District COBS Ocean Outfall Booster Station OSHA Occupational Safety and Health Administration PCSA Professional Consultant Services Agreement POTW Publicly Owned Treatment Works ppm Parts per million PSA Professional Services Agreement RFP Request For Proposal Glossary of Terms and Abbreviations RWQCB Regional Water Quality Control Board SARFPA Santa Ana River Flood Protection Agency SARI Santa Ana River Inceptor SARWQCB Santa Ana Regional Water Quality Control Board SAWPA Santa Ana Watershed Project Authority SCADA Supervisory Control and Data Acquisition system SCAP Southern California Alliance of Publicly Owned Treatment Works SCAQMD South Coast Air Quality Management District SOCWA South Orange County Wastewater Authority SRF State Revolving Fund SSMP Sanitary Sewer Management Plan SSO Sanitary Sewer Overflow SWRCB State Water Resources Control Board TDS Total Dissolved Solids TMDL Total Maximum Daily Load TSS Total Suspended Solids WDR Waste Discharge Requirements WEF Water Environment Federation WERF Water Environment Research Foundation WIFIA Water Infrastructure Financing and Innovation Act Activated-sludge process — A secondary biological wastewater treatment process where bacteria reproduce at a high rate with the introduction of excess air or oxygen, and consume dissolved nutrients in the wastewater. Benthos—The community of organisms, such as sea stars, worms, and shrimp, which live on, in, or near the seabed, also known as the benthic zone. Biochemical Oxygen Demand (BOD) —The amount of oxygen used when organic matter undergoes decomposition by microorganisms. Testing for BOD is done to assess the amount of organic matter in water. Blogas — A gas that is produced by the action of anaerobic bacteria on organic waste matter in a digester tank that can be used as a fuel. Biosolids — Biosolids are nutrient rich organic and highly treated solid materials produced by the wastewater treatment process. This high-quality product can be recycled as a soil amendment on farm land or further processed as an earth-like product for commercial and home gardens to improve and maintain fertile soil and stimulate plant growth. Capital Improvement Program (CIP) — Projects for repair, rehabilitation, and replacement of assets. Also includes treatment improvements, additional capacity, and projects for the support facilities. Coliform bacteria —A group of bacteria found in the intestines of humans and other animals, but also occasionally found elsewhere used as indicators of sewage pollution. E. coil are the most common bacteria in wastewater. Glossary of Terms and Abbreviations Collections system — In wastewater, it is the system of typically underground pipes that receive and convey sanitary wastewater or storm water. Certificate of Participation (COP) — A type of financing where an investor purchases a share of the lease revenues of a program rather than the bond being secured by those revenues. Contaminants of Potential Concern (CPC) — Pharmaceuticals, hormones, and other organic wastewater contaminants. Dilution to Threshold (D/T) — the dilution at which the majority of the people detect the odor becomes the D/T for that air sample. Greenhouse gases — In the order of relative abundance water vapor, carbon dioxide, methane, nitrous oxide, and ozone gases that are considered the cause of global warming ("greenhouse effect"). Groundwater Replenishment (GWR) System — A joint water reclamation project that proactively responds to Southern California's current and future water needs. This joint project between the Orange County Water District and the Orange County Sanitation District provides 70 million gallons a day of drinking quality water to replenish the local groundwater supply. Levels of Service(LOS)—Goals to support environmental and public expectations for performance. NDMA— N-Nitrosodimethylamine is an N-nitrosoamine suspected cancer-causing agent. It has been found in the Groundwater Replenishment System process and is eliminated using hydrogen peroxide with extra ultra-violet treatment. National Biosolids Partnership (NBP) — An alliance of the National Association of Clean Water Agencies (NACWA) and Water Environment Federation (WEF), with advisory support from the U.S. Environmental Protection Agency (EPA). NBP is committed to developing and advancing environmentally sound and sustainable biosolids management practices that go beyond regulatory compliance and promote public participation in order to enhance the credibility of local agency biosolids programs and improved communications that lead to public acceptance. Plume—A visible or measurable concentration of discharge from a stationary source or fixed facility. Publicly-owned Treatment Works(POTW)— Municipal wastewater treatment plant. Santa Ana River Interceptor (SARI) Line — A regional brine line designed to convey 30 million gallons per day of non-reclaimable wastewater from the upper Santa Ana River basin to the ocean for disposal, after treatment. Sanitary sewer — Separate sewer systems specifically for the carrying of domestic and industrial wastewater. Combined sewers carry both wastewater and urban run-off. South Coast Air Quality Management District (SCAQMD) — Regional regulatory agency that develops plans and regulations designed to achieve public health standards by reducing emissions from business and industry. Secondary treatment — Biological wastewater treatment, particularly the activated-sludge process, where bacteria and other microorganisms consume dissolved nutrients in wastewater. Sludge— Untreated solid material created by the treatment of wastewater. Total suspended solids (TSS)—The amount of solids floating and in suspension in wastewater. Glossary of Terms and Abbreviations Trickling filter — A biological secondary treatment process in which bacteria and other microorganisms, growing as slime on the surface of rocks or plastic media, consume nutrients in wastewater as it trickles over them. Urban runoff — Water from city streets and domestic properties that carry pollutants into the storm drains, rivers, lakes, and oceans. Wastewater—Any water that enters the sanitary sewer. Watershed —A land area from which water drains to a particular water body. OCSD's service area is in the Santa Ana River Watershed.