HomeMy WebLinkAbout11-07-2012 Operations Committee Agenda Packet NOTICE OF MEETING
OPERATIONS COMMITTEE
ORANGE COUNTY SANITATION DISTRICT
Engineering, Operations & Maintenance, and Facilities Support Services
Wednesday, November 7, 2012 — 5:00 P.M.
Administration Building
10844 Ellis Avenue
Fountain Valley, CA 92708
The regular meeting of the Operations Committee of the Orange County
Sanitation District will be held at the above location, date and time.
OPERATIONS COMMITTEE BOARD
MEETING DATE MEETING DATE
11/07/12 11/28/12
12/05/12 12119112`*
JANUARY DARK 01/23/13
02/06/13 02/27/13
03/06/13 03/27/13
04/03/13 04/24/13
05/01/13 05/22/13
06/05/13 06/26/13
07/03/13 07/24/13
AUGUST DARK 08/28/13
09/04/13 09/25/13
10/02/13 10/23/13
**Meeting will be held on the third Wednesday of the month.
Orange County Sanitation District Wednesday, November 7, 2012
Regular Meeting of the " 5:00 P.M.
Operations Committee Administration Building
Board Room
10844 Ellis Avenue
Fountain Valley, CA 92708
(714) 593-7130
The following is an amended agenda from a previous agenda version that was posted and
distributed on October 31, 2012.
PLEDGE OF ALLEGIANCE:
DECLARATION OF QUORUM:
PUBLIC COMMENTS: If you wish to speak, please complete a Speaker's Form and give it to the
Clerk of the Board. Speakers are requested to limit comments to three minutes.
REPORTS: The Committee Chair and the General Manager may present verbal reports on
miscellaneous matters of general interest to the Committee Members. These reports are for information
only and require no action by the Committee.
DEPARTMENT HEAD REPORT:
Wastewater 101: Solids Processing
CONSENT CALENDAR:
1. Approve Minutes of October 3, 2012, Operations Committee meeting.
2. Recommend to the Board of Directors to:
A. Approve a Professional Design Services Agreement with Brown and
Caldwell for Santa Ana Trunk Sewer Rehabilitation, Project No. 1-17,
providing for engineering design services for an amount not to exceed
$457,475; and,
B. Approve a contingency of$45,747 (10%).
11/07/12 Operations Committee AMENDED Agenda Page 1 of 5
3. Recommend to the Board of Directors to:
A. Adopt Resolution No. OCSD 12-XX, certifying the Notice of Exemption for
the Orangthorpe Avenue Grade Separation Project, Finding that the Lead
Agency CEQA Compliance Obligations have been Fulfilled, and Related
Actions (Project No. 2-77); and,
B. Approve a Reimbursement Agreement with the Orange County
Transportation Authority for an amount not to exceed $3,000,000, in a
form approved by General Counsel.
4. Recommend to the Board of Directors to:
A. Award a construction contract to the lowest responsive and responsible
bidder, Century Paving, Inc., for Plant 1 Asphalt Replacement Job No.
FR11-025 and Plant 2 Asphalt Replacement Job No. FR11-026, for a total
amount not to exceed $448,309; and,
B. Approve a contingency of$89,661 (20%).
5. Recommend to the Board of Directors to:
A. Approve a budget increase of $614,000, for a total project budget of
$930,000;
B. Approve a Professional Services Agreement with Arcadis U.S., Inc., for
Phase 2 Facility-Wide Safety Assessment, Project No. SP-145-1,
providing for services for an amount not to exceed $686,400; and,
C. Approve a contingency of$68,640 (10%).
6. A. Authorize the General Manager to competitively bid and subsequently
award a contract to the lowest responsive and responsible bidder, for the
SA-11 Wintersburg Channel Siphon Vent Replacement Project No. FR11-
017, for an amount not to exceed $170,000; and
B. Approve a contingency of$34,000 (20%).
11/07/12 Operations Committee AMENDED Agenda Page 2 of 5
NON-CONSENT:
7. Recommend to the Board of Directors to:
Approve a Waste Disposal Agreement with the County of Orange (Orange
County Waste and Recycling) for the County to receive and dispose of the
Orange County Sanitation District's biosolids at the Prima Deshecha Landfill,
subject to available capacity, for the period commencing on December 1, 2012
through June 30, 2020, with a renewal option of 10-years in a total annual
amount not to exceed $3,605,288.
8. Recommend to the Board of Directors to:
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Authorize Amendment No. 9 to Synagro West, Inc., (Synagro) Purchase Order
No. 100760-OB, increasing the annual amount from $6,580,000 to an amount not
to exceed (NTE) $8,600,000 for the period of January 1, 2012 through December
31, 2012 for the Orange County Sanitation District's biosolids management
contract. Thereafter, the NTE will be $6,580,000.
9. Recommend to the Board of Directors to:
A. Approve Plans and Specifications for Sludge Dewatering and Odor
Control at Plant No. 1, Project No. 131-101, on file at the office of the Clerk
of the Board;
B. Approve Addendum Nos. 1 through 6 to the plans and specifications;
C. Receive and file bid tabulation and recommendation;
D. Receive and file Award Protest dated October 5, 2012 and Supplemental
Award Protest dated October 12, 2012 from Balfour Beatty Infrastructure,
Inc. concerning the award to W. M. Lyles Company;
E. Receive and file response letter dated October 11, 2012, from W.M. Lyles
Company to Award Protest from Balfour Beatty Infrastructure, Inc.;
F. Receive and file Orange County Sanitation District Final Disposition letters
dated October 15, 2012 and October 31, 2012 to Balfour Beatty
Infrastructure, Inc. responding to the Award Protest;
G. Deny Award Protest filed by Balfour Beatty Infrastructure, Inc.;
(H-M continued on next page)
11/07/12 Operations Committee AMENDED Agenda Page 3 of 5
H. Receive and File Award Protest from Moyno, Inc. dated August 23, 2012,
alleging that the sole source designation of Seepex for cake pumps was
improper;
I. Receive and file Orange County Sanitation District Final Disposition letter
dated October 4, 2012 to Moyno, Inc., responding to Award Protest;
J. Reject untimely Award Protest filed by Moyno, Inc.;
K. Approve a budget increase of $24,708,300 for Sludge Dewatering and
Odor Control at Plant No. 1, Project No. P1-101 for a total amount not to
exceed $171,978,300;
L. Award a construction contract to W.M. Lyles Company for Sludge
Dewatering and Odor Control at Plant No. 1, Project No. P1-101, for a
total amount not to exceed $126,908,300; and,
M. Approve a contingency of$3,800,000 (3%).
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, or personnel 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. ANTICIPATED LITIGATION
(Government Code Section 54956.9(b))
Significant Exposure to Litigation
Number of Potential Cases: 1
Reconvene in regular session.
Consideration of action, if any, on matters considered in closed session.
11/07/12 Operations Committee AMENDED Agenda Page 4 of 5
OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA
ITEMS, IF ANY:
ADJOURNMENT:
The next Operations Committee meeting is scheduled for Wednesday, December 5,
2012, at 5:00 p.m.
Accommodations for the Disabled: Meeting Rooms are wheelchair accessible. If you require any special disability
related accommodations, please contact the Orange County Sanitation Distinct Clerk of the Board's office at
(714)593-7130 at least 72 hours prior to the scheduled meeting. Requests must specify the nature of the disability
and the type of accommodation requested.
Agenda Posting: 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, 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.
NOTICE TO DIRECTORS: To place items on the agenda for the Committee Meeting, items must be submitted to the
Clerk of the Board 14 days before the meeting.
Made E.Ayala
Clerk of the Board
(714)593-7130
mavala(d)ocsd.com
For any questions on the agenda,Committee members may contact staff at:
General Manager Jim Ruth (714)593-7110 imth(cfmsd.cem
Assistant General Manager Bob Ghirelli (714)593-7400 rohirelli(ti),ocsd.com
Assistant General Manager Jim Herberg (714)593-7300 iherbern(a)omd.com
Director of Facility Support Services Nick Arhontes (714)593-7210 narhontes(o�ocsd.com
Director of Operations&Maintenance Ed Tortes 714 593-7080 etomes ocsd.com
11/07/12 Operations Committee AMENDED Agenda Page 5 of 5
Glossary of Terms and Abbreviations
AQMD Air Quality Management District
ASCE American Society of Civil Engineers
BOO Biochemical Oxygen Demand
CARB California Air Resources Board
CASA California Association of Sanitation Agencies
CCTV Closed Circuit Television
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
FSSD Facilities Support Services Department
gpd Gallons per day
GWR System Groundwater Replenishment System (also called GWRS)
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
OOBS Ocean Outfall Booster Station
OSHA Occupational Safety and Health Administration
POTW Publicly Owned Treatment Works
ppm Parts per million
RFP Request For Proposal
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
Glossary of Terms and Abbreviations
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
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
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.
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.
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. coli are the most common
bacteria in wastewater.
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 (DR) — the dilution at which the majority of the people detect the odor
becomes the D(f for that air sample.
Glossary of Terms and Abbreviations
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.
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 (MGD) 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.
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.
Return to Agenda
OPERATIONS COMMITTEE Meeting Dale To ad.ofDir.
11/07/12 11/28112
AGENDA REPORT Item Number Item Number
2
Orange County Sanitation District
FROM: James D. Ruth, General Manager
Originator: Jim Herberg, Assistant General Manager
CIP Project Manager: Martin Dix
SUBJECT: SANTA ANA TRUNK SEWER REHABILITATION, PROJECT NO. 1-17
GENERAL MANAGER'S RECOMMENDATION
A. Approve a Professional Design Services Agreement with Brown and Caldwell
for Santa Ana Trunk Sewer Rehabilitation, Project No. 1-17, providing for
engineering design services for an amount not to exceed $457,475; and,
B. Approve a contingency of$45,747 (10%).
SUMMARY
In July 2010, the Orange County Sanitation District (Sanitation District) awarded a
design agreement to Brown and Caldwell to prepare a Condition Assessment Report
(Report) and Preliminary Design recommendation for the Santa Ana Trunk Sewer
(SATS). To verify the structural and physical conditions of the SATS, the Sanitation
District performed additional coring and laboratory pipeline analysis in February 2012.
Based on the results of the Report and additional coring investigation, the Sanitation
District decided to rehabilitate only the manholes, junction structures, and pipeline
reaches that are in the worst condition and need near-term rehabilitation. The project
budget was reduced from $21.1 Million to $7.3 Million.
For the remaining of manholes and pipeline, the Sanitation District will perform ongoing
manhole and pipeline assessment updates in approximate 5 year intervals, until
conditions warrant that design and construction should commence within a 2 to 4 year
timeframe.
Brown and Caldwell satisfactorily furnished the engineering services for the assessment
and preliminary design and their continuity with the design of these elements for
construction will be efficient and cost-effective. The proposed Professional Design
Services Agreement includes the preparation of plans and specifications for the
rehabilitation of the worst reaches of the SATS to maximize the pipeline's useful life with
minimal cost.
PRIOR COMMITTEE/BOARD ACTIONS
June 2012 - Authorized staff to negotiate a Professional Design Services Agreement
with Brown and Caldwell to provide engineering design services for the Santa Ana
Trunk Sewer Rehabilitation, Project No. 1-17.
Page 1 of 3
July 2010 - Approved a Professional Design Services Agreement with Brown and
Caldwell for Santa Ana Trunk Sewer Rehabilitation, Project No. 1-17, providing for
engineering design services for an amount not to exceed $801,850; and approved a
contingency of$80,185 (10%).
ADDITIONAL INFORMATION
The SATS was constructed in 1952 and is located in the cities of Costa Mesa, Santa
Ana, and Fountain Valley. The SATS is a major wastewater pipeline that currently
collects and conveys approximately 15 million gallons per day of raw wastewater to the
Sanitation District's Reclamation Plant No. 1, located in Fountain Valley, California. The
SATS Rehabilitation Project focuses on a portion of the SATS that is comprised of
approximately 3.3 miles of concrete pipe, from 42 to 60 inches in diameter, 39
manholes, and three siphons located beneath storm drain channels and the Santa Ana
River. The limits of the project are from Reclamation Plant No. 1 (western limit) to the
intersection of Alton Avenue and Bristol Street (eastern limit) in Santa Ana.
The Sanitation District retained Brown and Caldwell as condition assessment consultant
to conduct surveying and mapping, flow monitoring, hydraulic model updates, odor
control assessment, manhole inspections, and remote closed circuit television (CCTV)
pipeline inspection. This work resulted in pipeline and manhole condition ratings,
rehabilitation alternatives evaluation, and single contract delivery recommendations.
Recognizing that the manholes in the SATS project limits are generally more degraded
than the piping itself, discussions were held to explore the possibility of pursuing a near-
term manhole rehabilitation project and continue monitoring the condition of SATS over
time. More specifically, 21 of the 39 project manholes were deemed to require
structural remediation within 5 to 10 years, whereas the remainder of the manholes and
piping were deemed to likely require structural remediation in 10 to 20 years.
The District received a requested fee proposal based on a written scope of work. Staff
conducted negotiations with Brown and Caldwell to clarify the requirements and
establish a final negotiated fee. After negotiations with the Consultant, the fee was
reduced $90,399. Staff has determined this final fee to be fair and reasonable for the
scope of work and recommends awarding the Professional Design Services Agreement
to Brown and Caldwell for an amount not to exceed $457,475.
CEQA
The project is statutorily exempt from the California Environmental Quality Act pursuant
to Public Resource Code Section 21080.21, and categorically exempt pursuant to
CEQA Guidelines 15282(k) because it consists of actions less than one-mile in length
within a public street or highway and other public rights-of-way for the installation of a
new pipeline and/or the maintenance, repair, restoration, reconditioning, relocation,
replacement, removal, and/or demolition of an existing pipeline.
Page 2 of 3
The project is also categorically exempt pursuant to CEQA Guidelines Sections 15301
because it consists of the operation, repair, maintenance, permitting and/or minor
alteration of existing public structures, facilities, and/or mechanical equipment, involving
no expansion of use beyond that currently existing. The recommended action is also
categorically exempt pursuant to CEQA Guidelines Sections 15302 because it consists
of replacement or reconstruction of existing (below-ground) structures and facilities
where the new structure will be located on the same site (within the same right-of-way)
as the structure replaced, and will have substantially the same purpose and capacity as
the structure replaced.
The project is also within the scope of the Program Environmental Impact Report for the
1999 Strategic Plan, dated October 1999. Pursuant to CEQA Guidelines section
15168(c)(4), Sanitation District will use a written checklist to document its evaluation of
the recommended action, and have determined that the recommended action is within
the scope of the program EIR.
BUDGET/DELEGATION OF AUTHORITY COMPLIANCE
This complies with the authority levels in the Sanitation District's Delegation of Authority.
The project budget is sufficient for the recommended action. (FY 2012-13, Section 8,
Page 15).
Date of ADDroval Contract Amount Continaencv
11/28/12 $457,475 $45,747
ATTACHMENT
The following attachment(s)maybe viewed on-line at the OCSD website (www.ocsd.com) with the
complete agenda package and attachments:
( Professional Design Services Agreement (16 pages)
JH:MD:dm:gc
Page 3 of 3
PROFESSIONAL DESIGN SERVICES AGREEMENT
THIS AGREEMENT, is made and entered into to be effective the 28' day of November,
2012 by and between the ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to
as "SANITATION DISTRICT", and BROWN AND CALDWELL, for purposes of this Agreement
hereinafter referred to as "CONSULTANT".
WITNESSETH:
WHEREAS, the SANITATION DISTRICT desires to engage a CONSULTANT for Santa
Ana Trunk Sewer Rehabilitation, Project No. 1.17; and to provide Design services for the
rehabilitation of select manholes and segments of the gravity sewer as defined in the Scope of
Work; and,
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary professional services; and,
WHEREAS, the SANITATION DISTRICT has adopted procedures for the selection of
professional services and has proceeded in accordance with said procedures to select a
CONSULTANT to perform this work; and,
WHEREAS, at its regular meeting on November 28, 2012 the Board of Directors, by
Minute Order, accepted the recommendation of the Operations Committee to 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 perform its work in accordance with engineering standards
in effect for clarity, uniformity, and completeness. CONSULTANT shall respond to
all comments, suggestions, and recommendations on the SANITATION
DISTRICT's review comment sheets (i.e. DS1, DS2 and DS3).All comments
shall be incorporated into the design prior to the next submittal deadline or
addressed, in writing, as to why the comment has not been incorporated.
CONSULTANT shall ensure that each submittal is 100% accurate for the level of
PDSA PROJECT NO. 1.17
Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION
Page 1 of 16
work submitted (i.e. correct references, terms, capitalization or equal status,
spelling, punctuation, etc.)
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 CAD drawings, figures, and other work shall be produced by CONSULTANTS
and Subconsultants using the SANITATION DISTRICT CAD Manual.
Conversion of CAD work from any other non-standard CAD format to the
SANITATION DISTRICT format shall not be acceptable in lieu of this
requirement.
Electronic files shall conform to the SANITATION DISTRICT specifications. Any
changes to these specifications by the CONSULTANT are subject to review and
approval of the SANITATION DISTRICT.
Electronic files shall be subject to an acceptance period of 30 calendar days
during which the SANITATION DISTRICT shall perform appropriate reviews and
including CAD Manual compliance. CONSULTANT shall correct any
discrepancies or errors detected and reported within the acceptance period at no
additional cost to the SANITATION DISTRICT.
E. The CONSULTANT shall ensure that all plans and specifications prepared, or
recommended under this Agreement allow for competitive bidding. The
CONSULTANT shall design such plans or specifications so that procurement of
services, labor or materials are not available from only one source, and shall not
design plans and specifications around a single or specific product, piece of
major equipment or machinery, a specific patented design or a proprietary
process, unless required by principles of sound engineering practice and
supported by a written justification that has been approved in writing by the
SANITATION DISTRICT. The CONSULTANT shall submit this written
justification to the SANITATION DISTRICT prior to beginning work on such plans
and specifications. Whenever the CONSULTANT recommends a specific
product or equipment for competitive procurement, such recommendation shall
include at least two brand names of products that are capable of meeting the
functional requirements applicable to the project.
F. 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 party 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
PDSA PROJECT NO. 1.17
Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION
Page 2 of 16
SANITATION DISTRICT, (b)subsequently becomes publicly known to the
CONSULTANT other than through disclosure by the SANITATION DISTRICT.
Except for Subconsultants covered by Section 2 (a) neither the documents nor
their contents shall be released to any third party without the prior written consent
of 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 Four Hundred Fifty
Seven Thousand Four Hundred Seventy Five Dollars ($457,475). 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 herein, broken down as follows:
DESIGN SERVICES INCLUDING:
CONSULTANT: BROWN AND CALDWELL
Raw Labor $ 114,212
Fringe Rate 40%
(%x Raw Labor) 45.68
Burdened labor
(Raw Labor+Fringe Rate) $ 159,897
Overhead 114.50%
(%x Burden Labor) $ 183,082
Subtotal
(Burden Labor+Overhead) $ 342,979
Profit 9.79%
(%x Subtotal) $ 33,578
Total Direct Costs, not to exceed 1,000
TOTAL- CONSULTANT Consulting Services, not to exceed $ 377,557
Subconsultants under$100,000:
Subconsultant A Scheidegger $ 4,980
Subconsultant B SAF-R-DIG Utility Surveys, Inc. $ 15,520
Subconsultant C Traffic Control Engineering $ 16,000
Suboonsultant D KOM Meridian $ 14,300
Suboonsultant E Ninyo& Moore $29 118
TOTAL-Subconsultants under$100,000 $79,918
GRAND TOTAL for Design Services, not to exceed $457,475
PDSA PROJECT NO. 1.17
Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION
Page 3 of 16
The SANITATION DISTRICT shall pay to CONSULTANT the actual costs of
Subconsultant fees and charges, in an amount not to exceed Seventy Nine
Thousand Nine Hundred Eighteen Dollars ($79,918).
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.
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
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. 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 Section 5,
Payment, of this Agreement. CONSULTANT shall warrant and certify the
accuracy of these costs and understand that submitted costs are subject to
Section 12 Audit Provisions.
D. Overhead. As a portion of the total compensation to be paid to CONSULTANT,
the SANITATION DISTRICT shall compensate CONSULTANT for overhead at a
rate equal to 114.50%of burdened labor paid by CONSULTANT pursuant to
Compensation Section hereof.
E. Profit. As a portion of the total compensation to be paid to CONSULTANT, the
SANITATION DISTRICT shall pay a profit of Thirty Three Thousand Five
Hundred Seventy Eight Dollars ($33,578)for all services rendered by
CONSULTANT for this project.
F. Subconsultants. The SANITATION DISTRICT shall pay to CONSULTANT the
actual costs of subconsultant fees and charges in an amount not to exceed
Seventy Nine Thousand Nine Hundred Eighteen Dollars ($79,918).
G. Direct Costs. The SANITATION DISTRICT shall pay to CONSULTANT the
actual costs of permits and associated fees, travel and licenses for an amount not
to exceed One Thousand Dollars ($1,000). 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 DISTRICT receipts and other
documentary records to support CONSULTANT's request for reimbursement of
these amounts. All incidental expenses shall be included in overhead pursuant to
Compensation Section above. (See Attachment 'D").
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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. When the SANITATION DISTRICT determines that all Work authorized under the
Contract is fully complete and that the SANITATION DISTRICT requires no further work
from CONSULTANT, or the Contract is otherwise terminated or expires in accordance
with the terms of the Contract, the SANITATION DISTRICT shall give the Consultant
written notice that the Contract will be closed out. CONSULTANT shall submit all
outstanding billings, Work submittals, deliverables, reports or similarly related documents
as required under the Contract within thirty(30) days of receipt of notice of Contract
closeout.
Upon receipt of CONSULTANT'S submittals,the SANITATION DISTRICT shall commence
a closeout audit of the Contract and will either:
i. Give the CONSULTANT a final Contract 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 Project Closeout efforts identified in Agreement. Such support must be
provided within the timeframe requested by the SANITATION DISTRICT.
Notwithstanding the final Contract 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 Contract which expressly or by their nature extend beyond and
survive final Contract Acceptance.
Any failure by the SANITATION DISTRICT to reject the work or to reject the
CONSULTANT'S request for final Contract 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 Contract
Acceptance.
5. PAYMENT
A. CONSULTANT may submit monthly or periodic statements requesting payment
for those items included in Section 2 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.
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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.
B. CONSULTANT may submit periodic payment requests for each 30-day period of
this Agreement for the profit as set forth in Compensation Section 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.
C. 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.
D. 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.
E. 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 $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
a false claim or request for payment or approval; b) knowingly makes, uses, or
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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.
6. PREVAILING WAGES
To the extent CONSULTANT intends to employ employees who will perform work during
the design and preconstruction phases of a construction contract, as more specifically
defined under Labor Code Section 1720, CONSULTANT shall be subject to prevailing
wage requirements with respect to such employees.
7. DOCUMENT OWNERSHIP—SUBSEQUENT CHANGES TO PLANS AND
SPECIFICATIONS—CONSULTANT PERFORMANCE
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 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.
C. 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
Department and may be considered in future CONSULTANT selection
processes.
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8. 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 Vill, 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
Workers 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 Contractor to substitute any insurer whose rating
drops below the levels herein specified. Said substitution shall occur
within 20 days of written notice to Contractor, 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 Liabilitv
The CONSULTANT shall maintain during the life of this contract, 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) must be included in the General Liability policy and coverage must
be reflected on the submitted Certificate of Insurance.
C. Umbrella Excess Liabilitv
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.
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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.
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
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.
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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-S(7/97)or equivalent.
• Additional Insurance (ISO Form)CG2010 11 85 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.
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-S (7/97)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
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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 Contracts
Administration, Div. 230, 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.
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. Subcensultants
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.
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9. SCOPE CHANGES. In the event of a change in the scope of the proposed project,
requested by SANITATION DISTRICT, the parties hereto shall execute an addendum to
this Agreement setting forth with particularity all terms of the new Agreement, including
but not limited to any additional CONSULTANT's fees.
10. 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.
11. 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.
12. AUDIT PROVISIONS
i. 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.
ii. 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.
iii. 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
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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.
13. 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.
14. TERMINATION. The SANITATION DISTRICT mayterminate 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 at:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Gary V. Prater, Principal Contracts Administrator
Notice of termination shall be mailed to CONSULTANT at:
BROWN AND CALDW ELL
18200 Von Karman Avenue, Suite 400
Irvine, CA 92612
Attention: Dan Bunce
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. CONTRACT EXECUTION AUTHORIZATION. Both the SANITATION DISTRICT and
CONSULTANT do covenant that each individual executing this document by and on
behalf of each parry is a person duly authorized to execute contracts for that party.
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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 inequity 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 he 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, CONSULTANT's, 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, attomeys'fees, disbursements and
court costs, and all other professional, expert or CONSULTANT'S fees and costs and the
SANITATION DISTRICT'S general and administrative expenses; individually, a "Claim";
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 Indemnified Parties from any Claim arising solely from:
(A)the 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.
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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 indemnify 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 Parry'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.
24. 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.
PDSA PROJECT NO. 1.17
Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION
Page 15 of 16
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.
ORANGE COUNTY§IANITATION DISTRICT
o 2-
Mar Dubois(Approved as to Form) Date
Co tracts, Purchasing and Materials
nagement Division as
By
Chair, Board of Directors Date
By
Clerk of the Board Date
BROWN AND CALDWELL
By
Date
By
Date
ORANGE COUNTY SANITATION DISTRICT
By
Marc Dubois Date
Contracts, Purchasing and Materials
Management Division Manager
Attachments: Attachment"A"—Scope of Work
Attachment"D"—Allowable Direct Costs
Attachment"G"—Cost Matrix
GVP:yp
EDMS:003965017
PDSA PROJECT NO. 1.17
Revised 11/17/10 SANTA ANA TRUNK SEWER REHABILITATION
Page 16 of 16
Return to Agenda
OPERATIONS COMMITTEE Needng Dare TOBd.of Dll.
11/07/12 11/23/t2
AGENDA REPORT Item Number Item Number
3
Orange County Sanitation District
FROM: James D. Ruth, General Manager
Originator: Jim Herberg, Director of Engineering
Project Manager: Wendy Smith
SUBJECT: ORANGETHORPE AVENUE GRADE SEPARATION PROJECT
NO. 2-77, REIMBURSEMENT AGREEMENT
GENERAL MANAGER'S RECOMMENDATION
A. Adopt Resolution No. OCSD XX-XX, certifying the Notice of Exemption for the
Orangethorpe Avenue Grade Separation Project, Finding that the Lead Agency
CEQA Compliance Obligations have been Fulfilled, and Related Actions (Project
No. 2-77); and,
B. Approve a Reimbursement Agreement with the Orange County Transportation
Authority for an amount not to exceed $3,000,000, in a form approved by
General Counsel.
SUMMARY
In conjunction with the City of Anaheim and the City of Placentia, the Orange County
Transportation Authority (OCTA) is performing the Orangethorpe Avenue Grade
Separation Project. The project consists of raising the grade of Orangethorpe Avenue
and connector streets (Crowther Avenue and Miller Avenue) to pass over the Burlington
Northern and Santa Fe (BNSF) railroad tracks.
The location of numerous bridge abutments will necessitate the relocation of the Orange
County Sanitation District's (OCSD) facilities. The relocation of OCSD's facilities is
OCSD Project No. 2-77. The project will be constructed by OCTA to OCSD standards.
Project construction is scheduled to begin in February 2013.
OCSD has the right to use the public right-of-way within our service boundary to
construct, operate, and maintain facilities for wastewater transportation (CA Health and
Safety Code Section 4759 and 4759.1); however, the right is considered a statutory
franchise right and as such the principle of "prior in time, prior in right" applies. The
public right-of-way existed before OCSD's facility; therefore, it is OCSD's responsibility
to pay for the relocation of its facilities.
Per the terms of the Reimbursement Agreement, OCSD will reimburse OCTA for the
construction costs of the project. OCTA has agreed to pay for the design costs and
construction administration costs.
Page 1 of 2
PRIOR COMMITTEE/BOARD ACTIONS
N/A
ADDITIONAL INFORMATION
OCSD's pipeline is located in the City of Anaheim public right-of-way and on Orange
County Flood Control District (OCFCD) property by encroachment permit. OCSD's
facilities consist of a 42-inch to 52-inch reinforced concrete pipe that conveys flow from
north to south from Carbon Canyon Creek across the railroad right-of-way and OCFCD
property to Miller Avenue. Per the reimbursement agreement, OCSD has the right to
have an on-site inspector at the construction site to oversee the work.
Due to the fact that OCSD and OCTA are represented by the same law firm, OCSD has
been represented by Rutan and Tucker, LLP concerning this project and agreement.
CEQA
The City of Placentia is the lead agency under the California Environmental Quality Act
(CEQA), for the proposed Orangethorpe Grade Separation Project. Resolution
No. OCSD XX-XX makes CEQA findings required from the OCSD as a CEQA
responsible agency and then makes a finding that the City of Placentia have satisfied
CEQA compliance.
BUDGET/DELEGATION OF AUTHORITY COMPLIANCE
This request complies with authority levels of the Sanitation District's Delegation of
Authority. This item has been budgeted. (Line item: Section 8, Page 23). Project
contingency funds will not be used for this agreement.
Date of Approval Contract Amount Continnencv
N/A N/A N/A
ATTACHMENTS
1. Resolution
2. Reimbursement Agreement
WS:sa
Page 2 of 2
RESOLUTION NO. OCSD 12-XX
CERTIFYING THE NOTICE OF EXEMPTION FOR THE
ORANGETHORPE GRADE SEPARATION PROJECT, FINDING THAT
LEAD AGENCY CEQA COMPLIANCE OBLIGATIONS HAVE BEEN
FULFILLED, AND RELATED ACTIONS
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE ORANGE
COUNTY SANITATION DISTRICT CERTIFYING THE NOTICE OF
EXEMPTION FOR THE ORANGETHORPE GRADE SEPARATION
PROJECT; AND FINDING THAT LEAD AGENCY CEQA COMPLIANCE
OBLIGATIONS HAVE BEEN FULFILLED.
The Board of Directors of the Orange County Sanitation District does hereby find:
A. The Orange County Sanitation District (OCSD) owns the sewers in the
Orangethorpe Grade Separation Project area.
B. The Cities of Placentia and Anaheim have contracted with the Orange
County Transportation Agency (OCTA) to design and construct the
Orangethorpe Grade Separation Project.
C. The Orange County Transportation Agency (OCTA) has proposed the
relocation of the sewers along Orangethorpe to accommodate a railroad
grade separation.
D. The City of Placentia is the lead agency under the California
Environmental Quality Act (CEQA), for the proposed protection/relocation
of the Orangethorpe Grade Separation Project.
E. The City of Placentia prepared a Notice of Exemption for the
Orangethorpe Grade Separation Project pursuant to the requirements of
the California Environmental Quality Act (CEQA), the State CEQA
Guidelines.
F. The City of Placentia certified the project and the Notice of Exemption on
November 17, 2008 and filed a Notice of Determination on November 18,
2008.
G. No comments or challenges were filed during the 30-day review period for
the Project.
H. OCSD is a responsible agency under the California Environmental Quality
Act (CEQA).
NOW, THEREFORE, the Board of Directors of Orange County Sanitation District,
DOES HEREBY RESOLVE, DETERMINE, AND ORDER:
661060.1
Mty:11cMalva/bou"*14 dCo im AgeMaSP2010/06Ga.,p,w,c2-77GSP/O .02-CEQARuolmlov6e2-77-Anl,dac
Section 1: That the Board of Directors certifies the Notice of Exemption as
complete and adequate in that it addresses all of the environmental effects of the Project
and fully complies with the requirements of CEQA and the CEQA Guidelines
environmental analysis procedures. All of the information comprising the Notice of
Exemption is on file with the City of Placentia at 401 East Chapman Avenue, Placentia,
California.
Section 2: The Board of Directors finds that Project has no known potentially
significant environmental impacts.
Section 3: The Board of Directors finds that no substantial evidence has
been presented which would call into question the facts and conclusions of the City of
Placentia in preparing and filing a Notice of Exemption.
Section 4: The Board of Directors finds that the Notice of Exemption reflects
the independent review and judgment of the Orange County Sanitation District.
Section 5: The Board of Directors finds that a Notice of Exemption serves as
adequate and appropriate environmental documentation for the Project.
PASSED AND ADOPTED at a regular meeting held XX, 2012.
Chair, Orange County Sanitation District
ATTEST:
Clerk of the Board
661060.1 Mty:11ecMiva/bovd�Pa14l dCo im AgeMaSP2010/06GavgcWgg-77GSP/O .02-CEQARuolmlov6e2-77-Anl,dac
M
OCTA orange County Transportation Authority
UTILITY AGREEMENT Page 1 of 3
Project County Route Location
Orangethorpe Orange Orangethoipe Orangemorye
Avenue Grade Rail Corridor Avenue west of
Separation Miller to east of
Traub
Federal Aid No. N/A
Notice OCSD-t
Number
Owners File:S0205-1 OCSD Utility Agreement.dom
Data June 6,2012 Grade ® Yes ❑ No
Separation:
UTILITY AGREEMENT NO: OCSD-1 DATE
The Orange County Transportation Authority,(OCTA)proposes to construct a grade separation at Orangethorye Avenue west of Miller to east
of Traub(Grade Separation Project)on behalf of the Cities of Anaheim and Placentia.
Orange County Sanitation District (OCSD) owns and maintains sanitary sewer facilRies (Facilities) within the boundaries of the Grade
Separation Project.The Facilities must be relocated in order to construct the Grade Separation Project.
To accommodate the Grade Separation Project,
It Is hereby mutually agreed that:
L WORK TO BE PERFORMED
In accordance with Notice to Owner (in the form attached hereto as Exhibit 'A"), OCTA shall relocate the Facilities (Facilities
Relocation) on behalf of OCSD within the street rights of way of the Cities of Anaheim and Placentia, OCTA will provide plans,
specifications and estimates(Relocation Plans)for the Facilities Relocation to OCSD for review and approval at least 30 calendar
days before advertisement of the Relocation Plans for bids. The Relocation Plans will be prepared in conformance with OCSD's
regulations, procedures, manuals, standards and specifications, and other applicable agency standards. OCTA shall perform the
Facilities Relocation in substantial conformance with the Relocation Plans. No modification,waiver or amendment of the Relocation
Plans will be valid unless the same is in writing and executed by duly authorized representatives of OCTA and OCSD. OCTA shall
not interrupt the sewer services provided by OCSD to its customers without the prior written approval of OCSD,OCTA's Contractor
shall make every effort to minimize the duration of temporary sewer facility use.OCSD shall be responsible for the cost and expense
of providing temporary sewer facilities to avoid sewer service interruption.
II. LIABILITY FOR WORK
The Facilities will be relocated in accordance with OCSD's statutory franchise in Me streets of Me Cities of Anaheim and Placentia
for this relocation,OCTA's expense shall be Zero(0%)and OCSD's expense shall be One Hundred Percent(100%). The estimated
cost to OCSD for the Facilities Relocation is Two million three hundred thirty-four thousand and nine hundred thirty-eight Dollars
($2,334,938)(Estimated Cost); provided that,no contract to perform the FacilMies Relocation will be let for a sum exceeding Three
million Dollars$3,000,000 without the prior,written consent of the Board of directors of OCSD. OCSDacknowledgesthat Estimated
Cost is an estimate only,and that OCTA does not warrant,promise,or otherwise,represent that the facilities Relocation will or can
be performed for the Estimated Cost. Nothing in this agreement limits or modifies OCSD's obligation by law to relocate its Facilities
to accommodate the Grade Separation Project.
III, PERFORMANCE OF WORK:
OCTA agrees to perform the Facilities Relocation with its own forces or to cause the Facilities Relocation to be performed by OCTA's
contractor as a component of the contract for the Grade Separation Project, and to furnish all necessary labor,materials,tools and
equipment required therefore,and to prosecute said work diligently to completion.
OCTA agrees to require all legally required bonds,including a Faithful Performance Bond and a Labor and material Bond.
IV. PAYMENT FOR WORK
OCSD shall be Polly responsible for the reasonable payment of Me cost and expense to construct the Facilities Relocation.
All cost incurred by OCTA to construct the Facilities Relocation (OCSD Project Costs), will be billed pursuant to the terms and
conditions of this Agreement.
OCSD shall pay its share of the actual coat of the OCSD Project Cost within 90 days after receipt of OCTA's itemized bill in
qulntuplicate, signed by a responsible official of OCTA and prepared on OCTA letterhead,compiled on Me basis of the actual cost
and expense incurred and charged or allocated to the Facilities Relocation in accordance with Me applicable system of accounts
prescribed to OCSD by OCTA.
Revised 10/31/2012
M
OCTA orange County Transportation Minorlry
UTILITY AGREEMENT Page 2 of 3
It Is understood and agreed that the OCTA will not pay for any betterment or increase In capacity of the Facilities.
Not more frequently than monthly,but not less than quarterly,OCTA will prepare and submit progress bills for OCSD Project Costs
incurred as of the billing date,less estimated credits,if any,applicable to completed work.
The OCTA shall submit a final bill to the OCSD for OCSD Project Costs within 90 days after the completion of the Facilities
Relocation.
The final bill shall be in the form of an itemized statement of the total OCSD Project Costs attributable to the Facilities Relocation,
less credits,if any,and less any amounts covered by progress payments. Any and all increases in the OCSD Project Costs that are
fine direct result of deviations from the work described in Section I of this Agreement shall have the prior concurrence of OCTA.
Detailed records from which the bill is compiled shall be retained by the OCTA for a period of three years from the date of the final bill
and will be available for audit by OCSD and/or Federal auditors.
V. INSURANCE
OCTA will require its, Contractors and sub-contractors to maintain the following insurance coverage during the entire period of the
Facilities Relocation at levels no less than required by law,with the following minimum Insurance coverage:
a. Commercial General Liability, to include Products/Completed Operations, Independent Contractors, Contractual Liability and
Personal Injury Liability with at least$5,000,000 of coverage.
b. Automobile Liability Insurance with the following limits:
1) Bodily Injury and Property Damage with limits of$1,000,000.00 per accident combined single limit;
G. Worker's Compensation with limits as required by the State of California.
VI, WARRANTY
OCTA will obtain on behalf of OCSD a one-year warranty on the work to be performed for all of OCSD sewer facilities from OCTA's
construction contractor. OCTA will promptly notify OCSD of the commencement of the warranty period. Such warranty will read as
follows:
'Contractor guaranteed for a period of one (1) year from the date of final acceptance of the work by OCTA(for OCSD) that the
Contractor will repair or move and replace any work,together with any other work which may be displaced In so doing,this Is found
to be defective in workmanship and/or materials without any expense to OCTA or its assigns, ordinary wear and tear excepted. If
Contractor fails to comply with this warranty within one (1)week after being notified in writing, OCTA(OCSD) or is assigns are
authorized to proceed to have the defects remedied at Contractors expense. Contractor will pay the cost and charges thereof
immediately on demand. If, in the opinion of OCTA(OCSD)or its assigns, defective work detected during the guarantee period
creates a dangerous condition or requires immediate correction or modification to prevent further loss to OCTA (OCSD) or its
assigns or to prevent interruption of OCTA's(OCSD)or its assigns'operations, OCTA(OCSD)or its assigns will be authorized to
repair the condition without prior notice to the Contractor and Contractor will pay the cost and charges thereof immediately upon
demand. Contractor's obligations under this section are in stil n to Contractor's other express or implied assurances under the
Construction Contract and State and in no way diminish any other rights that OCTA (OCSD) or its assigns may have against
Contractor for faulty materials,equipment,or work. Contractor agrees that this warranty and guarantee will be freely assignable to
the Orange County Sanitation District without any further notice to or consent from Contractor.
VII INDEMNIFICATION
a. OCTA shall defend, indemnify and hold harmless OCSD, and its officers, agents, elected officials, and employees, from and
against all liability,claims, losses and demands,including defense costs and reasonable attorney's fees,whether resulting from
court action or otherwise,arising out of the acts or omissions of OCTA,its officers,agents,or employees, in the performance of
this Agreement,excepting acts or omissions directed by OCSD,or by its officers,agents or employees,acting within the scope
of their employment,for which the OCSD agrees to defend and indemnify OCTA in a like manner. This indemnity shall survive
even after the termination of this Agreement.
b. OCSD shall defend, indemnify and hold harmless OCTA, and its officers, agents, elected officials, and employees from and
against all liability,claims, losses and demands,including defense costs and reasonable abomeye fees,whether resulting from
court action or otherwise,arising out of the acts or omissions of OCSD,its officers,agents,or employees,in the performance of
the Agreement,excepting acts or omissions directed by OCTA,or by its officers,agents,or employees,acting within the scope
of their employment,for which OCTA agrees to defend and indemnify OCSD in a like manner. This indemnity shall survive even
after the termination of this Agreement.
VIII GENERAL CONDITIONS
If the Grade Separation Project is canceled or modified so as to eliminate the necessity for the Facilities Relocation,OCTA will notify
OCSD in writing.Thereafter,the parties will meet and confer to discuss an amendment to this agreement that shall provide for close
out of the work. OCTA agrees to cease all work under this agreement on or before the effective date of any such notice. The
amendment shall provide that OCTA reimburse OCSD the cost of the Facilities Relocation Project. Such costs shall include but not
be limited to the cost of labor and materials.
Revised 10/31/2012
M
OCTA orange County Transportation Authority
UTILITY AGREEMENT Page 3 of 3
OCTA shall submit a Notice of Completion to the OCSD within 30 days of the completion of work described herein. The parties
intend the Facilities Relocation to be made within the street rights of way of the Cities of Anaheim and Placentia,subject to all of the
rights,restrictions,and limitations of OCSD's statutory franchise in the Cities streets.
OCTA agrees to provide all slag, employees, agents, consultants and contactors deemed necessary and appropriate by OCTA to
manage, administer, coordinate and oversee engineering design, right-of-way, construction and construction management of the
Facilities Relocation. As deemed necessary and appropriate by OCTA, OCTA agrees further to prepare construction contract
documents, advertise and award construction contacts, and conduct construction administration and construction management for
the Facilities Relocation.
OCTA will invite OCSD staff to all construction progress meetings that are focused on the Facilities Relocation.
OCTA will provide OCSD staff with contactor schedules and updates.
OCTA will notify OCSD 48 hours prior to the need for an inspection.
OCTA will cause OCSD to be provided with'es-built drawings of the relocated Facilities upon completion of the Facilities Relocation.
OCSD will perfume a recorded closed-circuit television (cctv)review of the Sewer Facilities before and after construction and within
the last 20 business days of the warranty period. OCSD will provide a copy,of the recordings to OCTA promptly after each review is
performed.
OCSD shall be entitled to a 60-day submittal review period
OCSD shall be entitled to have an on-site Inspector In the work area.
OCSD shall have ability to witness and verify geotechnical testing and survey elevations.
Both parties agree to collaborate and cooperate with staff, consultants, employees, agents and contactors during design and
construction of me Facilities Relocations.
This agreement contains the entire agreement between the parties and supersedes any prior oral or written statements or agreements between the
parties.
UTILITY AGREEMENT NO.00SD-1
IN WITNESS WHEREOF,the parties have executed this AGREEMENT as of,and this AGREEMENT shall be effective as of,the'Date"set forth on
the face page of this AGREEMENT.
ORANGE COUNTY SANITATION DISTRICT:
By:
Print Name:
Title:
Approver)As To Form:
By:
Kathy Jenson
Special Counsel
ORANGE COUNTY
TRANSPORTATION AUTHORITY,
A public agency
By:
Print Name:
Title:
Approved As To Form:
By:
Kennard R.Smart,Jr.
General Counsel
Revised 10/312012
Return to Agenda
OPERATIONS COMMITTEE Meeting Date TOBd.of Dir.
11/D]/12 1'1z8/12
AGENDA REPORT ItemNumber Item Number
a
Orange County Sanitation District
FROM: James D. Ruth, General Manager
Originator: Nick Arhontes, P.E., Director of Facilities Support Services
Engineering Manager: Mark Esquer, P.E., FSSD
SUBJECT: PLANT 1 ASPHALT REPLACEMENT JOB NO. FR11-025
PLANT 2 ASPHALT REPLACEMENT JOB NO. FR11-026
GENERAL MANAGER'S RECOMMENDATION
A. Award a contract to the lowest responsive and responsible bidder, Century
Paving, Inc., for Plant 1 Asphalt Replacement Job No. FR11-025 and Plant 2
Asphalt Replacement Job No. FR11-026, for a total amount not to exceed
$448,309; and,
B. Approve a contingency of$89,661 (20%).
SUMMARY
The project includes replacing and/or repairing deteriorated and damaged asphalt
pavement in various locations within Reclamation Plant No.1 and Treatment Plant No.2.
This project scope is based on the Bucknam and Associates Pavement Condition
Assessment report and an Orange County Sanitation District (Sanitation District) staff
inspection from January 2008.
The Contractor will also repair cracks, pot holes, as well as deteriorated concrete curbs
and gutters. The repair work also includes approximately 54,000 cubic yards of slurry
seal and/or approximately 2,400 tons of asphalt concrete repair overlay.
The Sanitation District advertised for bids on August 28, 2012 and sealed bids were
received on October 9, 2012. The bids were evaluated in accordance with the
Sanitation District's policies and procedures. Century Paving, Inc. was deemed the
lowest responsive, responsible bidder. Staff recommends awarding a contract to
Century Paving, Inc. for Plant 1 Asphalt Replacement Job No. FR11-025 and Plant 2
Asphalt Replacement Job No. FR11-026, for a total amount not to exceed $448,309.
Page 1 of 2
Summary information on the bid opening for Plant 1 Asphalt Replacement Job No.
FR11-025 and Plant 2 Asphalt Replacement Job No. FR11-026 is as follows:
Project Budget $1,000,000
Contract Budget $ 503,000
Engineer's Estimate $ 503,000
Bidder Amount of Bid
Century Paving, Inc. $448,309
Command Performance Constructors, Inc. $472,599
Ben's Asphalt $539,345
All American Asphalt $732,122
PRIOR COMMITTEE/BOARD ACTIONS
None
ADDITIONAL INFORMATION
The overall goal of this repair project is to reduce the life cycle cost of maintaining
asphalt paving within the plants by performing preventative maintenance at the
appropriate time to maintain the asset properly. Slurry sealing existing pavements will
last about eight (8) years. This is the first of future pavement management projects.
CEQA
N/A
BUDGET/DELEGATION OF AUTHORITY COMPLIANCE
This request complies with authority levels of the Sanitation District's Delegation of
Authority. This repair will be funded through the Small Capital Replacement
/Rehabilitation Project SP-34 (Budget Update Fiscal Year 2012-2013 and 2013-2014
Misc. & Support Projects; Section 8— Page 111). This Small Capital fund is used to pay
for capital repairs and/or direct replacements. The SP-34 budget is adequate to cover
these two projects.
Date of Approval Contract Amount Continnencv
11/28/12 $448,309 $89,661 (20%)
ATTACHMENT
The following attachment(s) maybe viewed on-line at the OCSD website (1 w .ocsd.com) with the
complete agenda package and attachments:
( Service Agreement
JF:am:dm:gc
Page 2 of 2
SERVICE AGREEMENT
Plant 1 and 2 Asphalt Replacement
Specification No. FR11-025 and FRI1-026
THIS AGREEMENT is made and entered into as of the date fully executed below by and
between Orange County Sanitation District, with a principal place of business at 10844 Ellis
Avenue, Fountain Valley, CA 92708-7018 (hereinafter referred to as "OCSD") and Century
Paving, Inc. with a principal business at 14630 East Firestone Blvd., La Mirada, CA 90638
(hereinafter referred to as "Contractor") collectively referred to as the "Parties".
RECITALS
WHEREAS, OCSD desires to retain the services of Contractor for asphalt replacement at OCSD
plant numbers 1 and 2 ("Services"); and
WHEREAS, OCSD has chosen Contractor to conduct Services in accordance with Purchasing
Resolution No. OCSD07-04; and
WHEREAS, on November 28, 2012, the Board of Directors of OCSD, by minute order,
authorized execution of this Agreement between OCSD and Contractor; and
WHEREAS, Contractor is qualified by virtue of experience, training, and education and expertise
to accomplish such Services,
NOW THEREFORE, in consideration of the promises and mutual benefits exchanged between
the Parties, it is mutually agreed as follows:
1. Introduction
1.1 This Agreement and all exhibits hereto (called the "Agreement") is made by OCSD and
Contractor. The Terms and Conditions herein exclusively govern the purchase of Services as
described in the Scope of Work, attached hereto and incorporated herein by reference as Exhibit
IN..
1.2 Exhibits to this Agreement are incorporated by reference and made a part of this
Agreement as though fully set forth at length herein. Exhibits to this Agreement are as follows in
order of precedence:
Exhibit"A" Technical Specifications as Modified by Addendum No.1 to the Notice
Inviting Bids
Exhibit"B" Safety Requirements and Human Resources Policies
Exhibit"C" Bid from Contractor
Exhibit"D" Acknowledgement of Insurance Requirements
1.3 In the event of any conflict or inconsistency between the provisions of this Agreement and
any of the provisions of the exhibits hereto, the provisions of this Agreement shall in all respects
govern and control.
1.4 The provisions of this Agreement may be amended or waived only by a writing executed
by authorized representatives of both Parties hereto.
1.5 The various headings in this Agreement are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any Paragraph or provision hereof.
Orange County Sanitation District 1 of 7 Specification Nos. FR11-025&FR11-026
1.6 The term "days", when used in the Agreement, shall mean calendar days, unless
otherwise noted as business days.
1.7 The term "hours", when used in this Agreement, shall be as defined in Exhibit"A".
1.8 Contractor shall provide OCSD with all required premiums and/or overtime work at no
charge beyond the price provided under"Compensation" below.
1.9 Except as expressly provided otherwise, OCSD accepts no liability for any expenses,
losses, or action incurred or undertaken by Contractor as a result of work performed in
anticipation of purchases of said services by OCSD.
2. Compensation
Compensation for this project shall not exceed the total amount of Four Hundred Forty-eight
Thousand Three Hundred Nine and 00/00 Dollars ($448,309.00).
3. Payments Payments shall be made upon approval by OCSD Engineer, John
Falkenstein or his designee, of invoices submitted for work completed as described in Exhibit
"A". OCSD, at its sole discretion, shall be the determining party as to whether the tasks and
deliverables have been satisfactorily completed.
4. Invoices
4.1 OCSD shall pay within 30 days of completion and receipt and approval by OCSD
Engineer of an itemized invoice, in a form acceptable to OCSD to enable audit of the charges
thereon. Contractor shall not pay less than the prevailing wage, if applicable. Invoices shall
include the Purchase Order Number.
4.2 Invoices shall be mailed by Contractor to OCSD'S Administration Office at the following
address: Accounts Payable, Finance Department, Orange County Sanitation District, 10844 Ellis
Avenue, Fountain Valley, CA 92708-7018.
5. Audit Rights Contractor agrees that, during the term of this Agreement and for a period
of three (3) years after its termination, OCSD shall have access to and the right to examine any
directly pertinent books, documents, and records of Contractor relating to the invoices submitted
by Contractor pursuant to this Agreement.
6. Scope of Work Subject to the terms of this Agreement, Contractor shall perform the
Services identified in Exhibit "A". Contractor shall perform said Services in accordance with
generally accepted industry and professional standards.
7. Modifications to Scope of Work Requests for modifications to the Scope of Work
hereunder can be made by OCSD at any time. All modifications must be made in writing and
signed by both Parties.
6. Agreement Tenn The services provided under this Agreement shall be completed within
150 days from the date of notice to proceed.
9. Termination
9.1 OCSD reserves the right to terminate this Agreement for its convenience, with or without
cause, in whole or in part, at any time, by written notice from OCSD, (delivered by certified mail,
return receipt requested) of intent to terminate. Upon receipt of a termination notice, Contractor
shall immediately discontinue all work under this Agreement (unless the notice directs
otherwise). OCSD shall thereafter, within thirty (30) days, pay Contractor for work performed
(cost and fee) to the date of termination. Contractor expressly waives any claim to receive
Orange County Sanitation District 2 of 7 Specification Nos. FR11-025&FR11-026
anticipated profits to be earned during the uncompleted portion of this Agreement. Such notice
of termination shall terminate this Agreement and release OCSD from any further fee, cost or
claim hereunder by Contractor other than for work performed to the date of termination.
9.2 OCSD reserves the right to terminate this Agreement immediately upon OCSD'S
determination that Contractor is not meeting specification requirements, if the level of service is
inadequate, or any other default of this Agreement.
9.3 OCSD may also immediately cancel for default of this Agreement in whole or in part by
written notice to Contractor:
• if Contractor becomes insolvent or files a petition under the Bankruptcy Act; or
• if Contractor sells its business; or
• if Contractor breaches any of the terms of this Agreement; or
• if total amount of compensation exceeds the amount authorized under this Agreement.
9.4 All OCSD property in the possession or control of Contractor shall be returned by
Contractor to OCSD upon demand, or at the termination of this Agreement, whichever occurs
first.
10. Insurance Contractor and all subcontractors shall purchase and maintain, throughout the
life of this Agreement and any periods of warranty or extensions, insurance in amounts equal to
the requirements set forth in the signed Acknowledgement of Insurance Requirements (attached
hereto and incorporated herein as Exhibit "D"). Contractor shall not commence work under this
Agreement until all required insurance is obtained in a form acceptable to OCSD, nor shall
Contractor allow any subcontractor to commence service pursuant to a subcontract until all
insurance required of the subcontractor has been obtained. Failure to maintain required
insurance coverage shall result in termination of this Agreement.
11. Indemnification and Hold Harmless Provision Contractor agrees to save, indemnify,
defend and hold harmless OCSD against any and all liability, claims, judgments, cost and
demands, including demands arising from injuries or death of persons and damage to property,
arising directly or indirectly out of the negligence or willful misconduct of Contractor, its
employees or agents, in relation to the rendition of services pursuant to this Agreement, except
claims or litigations arising through the sole negligence or willful misconduct of OCSD.
Contractor agrees to reimburse OCSD for any expenditure, including reasonable attorney's fees,
OCSD may incur by reason of such matters, and, if requested by OCSD, will defend any such
suits at the cost and expense of Contractor.
12. Warranty
12.1 Manufacturer's standard warranty shall apply. All manufacturer warranties will begin at
date of completion of this Contact.
12.2 Contractor's warranty: If, within the 12-month period following completion of its Services,
OCSD informs Contractor that any part of the Services fails to meet the standards required under
this Agreement, Contractor shall, within the time agreed to by OCSD and Contractor, take all
such actions as are necessary to correct or complete the noted deficiency(ies).
13. Freight(F.O.B. Destination)
Contractor assumes full responsibility for all transportation, transportation scheduling, packing,
handling, insurance, and other services associated with delivery of all products deemed
necessary under this Agreement.
Orange County Sanitation District 3 of 7 Specification Nos. FRI I-025&FRI1-026
14. Force Maieure Neither party shall be liable for delays caused by accident, flood, acts of
God, fire, labor trouble, war, acts of government or any other cause beyond its control, but said
party shall use reasonable efforts to minimize the extent of the delay. Work affected by a Force
Majeure condition may be rescheduled by mutual consent or may be eliminated from the
Agreement.
15. Independent Contractor It is agreed that Contractor shall act and be an independent
contractor and not an agent or employee of OCSD, and shall obtain no rights to any benefits
which accrue to OCSDS employees.
16. Limitations upon Subcontracting and Assignment Contractor shall not delegate any
duties nor assign any rights under this Agreement without the prior written consent of OCSD.
Any such attempted delegation or assignment shall be void.
17. Performance Time is of the essence in the performance of this Agreement and the
provisions hereof.
16. Licenses. Permits. Ordinances and Reaulations Contractor represents and warrants
to OCSD that it has obtained all licenses, permits, qualification and approvals of whatever nature
that are legally required to engage in this work. Any and all fees required by State, County, City
and/or municipal laws, codes and/or tariffs that pertain to work performed under the terms of this
Agreement will be paid by Contractor.
19. Applicable Laws and Regulations Contractor shall comply with all applicable federal,
state, and local laws, rules, and regulations. Contractor also agrees to indemnify and hold
harmless from any and all damages and liabilities assessed against OCSD as a result of
Contractor's noncompliance therewith. Any permission required by law to be included herein
shall be deemed included as a part of this Agreement whether or not specifically referenced.
20. Familiarity with Work By executing this Agreement, Contractor warrants that: 1) it has
investigated the work to be performed; 2) it has investigated the site of the work and is aware of
all conditions there; and 3) it understands the facilities, difficulties and restrictions of the work
under this Agreement. Should Contractor discover any latent or unknown conditions materially
differing from those inherent in the work or as represented by OCSD, it shall immediately inform
OCSD of this and shall not proceed, except at Contractor's risk, until written instructions are
received from OCSD.
21. Public Contracts Law 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 performed for each craft or type of work needed to execute this Contract. Contractor agrees
that not less than said prevailing rates shall be paid to workers employed on this Contract as
required by Labor Code Section 1774 of the State of California.
22. Governing Law This Agreement shall be governed by and interpreted under the laws of
the State of California and the Parties submit to jurisdiction in Orange County, in the event any
action is brought in connection with this Agreement or the performance thereof.
23. Breach The waiver of either party of any breach or violation of, or default under, any
provision of this Agreement, shall not be deemed a continuing waiver by such party of any other
provision or of any subsequent breach or violation of this Agreement or default thereunder. Any
breach by Contractor to which OCSD does not object shall not operate as a waiver of OCSDS
rights to seek remedies available to it for any subsequent breach.
Orange County Sanitation District 4 of 7 Specification Nos. FRII-025&FR11-026
24. Remedies In addition to other remedies available in law or equity, if the Contractor fails
to make delivery of the goods or Services or repudiates its obligations under this Agreement, or if
OCSD rejects the goods or Services or revokes acceptance of the goods or Services, OCSD
may (1) cancel the Agreement; (2) recover whatever amount of the purchase price OCSD has
paid, and/or (3) 'cover' by purchasing, or contracting to purchase, substitute goods or Services
for those due from Contractor. In the event OCSD elects to 'cover' as described in (3), OCSD
shall be entitled to recover from Contractor as damages the difference between the cost of the
substitute goods or Services and the contract price, together with any incidental or consequential
damages.
25. Dispute Resolution
25.1 In the event of a dispute as to the construction or interpretation of this Agreement, or any
rights or obligations hereunder, the Parties shall first attempt, in good faith, to resolve the dispute
by mediation. The Parties shall mutually select a mediator to facilitate the resolution of the
dispute. If the Parties are unable to agree on a mediator, the mediation shall be conducted in
accordance with the Commercial Mediation Rules of the American Arbitration Agreement,
through the alternate dispute resolution procedures of Judicial Arbitration through Mediation
Services of Orange County ("JAMS'), or any similar organization or entity conducting an
alternate dispute resolution process.
25.2 In the event the Parties are unable to timely resolve the dispute through mediation, the
issues in dispute shall be submitted to arbitration pursuant to California Code of Civil Procedure,
Part 3, Title 9, Sections 1280 at seq. For such purpose, an agreed arbitrator shall be selected,
or in the absence of agreement, each party shall select an arbitrator, and those two arbitrators
shall select a third. Discovery may be conducted in connection with the arbitration proceeding
pursuant to California Code of Civil Procedure Section 1283.05. The arbitrator, or three
arbitrators acting as a board, shall take such evidence and make such investigation as deemed
appropriate and shall render a written decision on the matter in question. The arbitrator shall
decide each and every dispute in accordance with the laws of the State of California. The
arbitrators decision and award shall be subject to review for errors of fact or law in the Superior
Court for the County of Orange, with a right of appeal from any judgment issued therein.
26. Survival The provisions of this Agreement dealing with Payment, Warranty, and Forum
for Enforcement, shall survive termination or expiration of this Agreement.
27. Severability If any section, subsection, or provision of this Agreement, or any agreement
or instrument contemplated hereby, or the application of such section, subsection, or provision is
held invalid, the remainder of this Agreement or instrument in the application of such section,
subsection or provision to persons or circumstances other than those to which it is held invalid,
shall not be affected thereby, unless the effect of such invalidity shall be to substantially frustrate
the expectations of the Parties.
28. Disclosure Contractor agrees not to disclose, to any third party, data or information
generated from this project without the prior written consent from OCSD.
29. Third Party Rights Nothing in this Agreement shall be construed to give any rights or
benefits to anyone other than OCSD and Contractor.
30. Damage to OCSD's Property Any of OCSUS property damaged by Contractor, any
subcontractors or by the personnel of either will be subject to repair or replacement by
Contractor at no cost to OCSD.
31. Safety Reauirements and Human Resources (HR) Policies Contractor shall adhere to
the Safety Requirements and HR Policies in Exhibit 'B" hereto.
Orange County Sanitation District 5 of 7 Specification Nos. FRf 1-025&FRf 1-026
32. Attorney's Fees If any action at law or inequity 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 he may be entitled.
33. Authority to Execute The persons executing this Agreement on behalf of the Parties
warrant that they are duly authorized to execute this Agreement and that by executing this
Agreement, the Parties are formally bound.
34. South Coast Air Quality Management District's (SCAQMD) Requirements It is
Contractor's responsibility that all equipment furnished and installed be in accordance with the
latest rules and regulations of the South Coast Air Quality Management District (SCAQMD). All
contract work practices, which may have associated emissions such as sandblasting, open field
spray painting or demolition of asbestos containing components or structures, shall comply with
the appropriate rules and regulations of the SCAQMD.
35. Regulatory Requirements Contractor shall perform all work under this Agreement in
strict conformance with applicable federal, state, and local regulatory requirements including, but
not limited to, 40 CFR 122, 123, 124, 257, 258, 260, and 261, Title 22, 23, and California Water
Codes Division 2.
36. Authority to Execute The persons executing this Agreement on behalf of the Parties
warrant that they are duly authorized to execute this Agreement and that by executing this
Agreement, the Parties are formally bound.
37. Read and Understood By signing this Agreement, Contractor represents that he has
read and understood the terms and conditions of the Agreement.
36. Entire Agreement This Agreement constitutes the entire agreement of the Parties and
supersedes all prior written or oral and all contemporaneous oral agreements, understandings,
and negotiations between the Parties with respect to the subject matter hereof.
Orange County Sanitation District 6 of 7 Specification Nos. FRI I-025&FRI1-026
39. Notices All notices under this Agreement must be in writing. Written notice shall be sent
by registered or certified mail, postage prepaid, return receipt requested, or by any other
overnight delivery service which delivers to the noticed destination and provides proof of delivery
to the sender. Any facsimile notice must be followed within three (3) days by written notice. All
notices shall be effective when first received at the following addresses:
OCSD: Clarice M. Marcin
Senior Contracts Administrator
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Contractor: Century Paving, Inc.
IN WITNESS WHEREOF, the Parties hereto have hereunto set their hands the day and year
indicated below.
ORANGE COUNTY SANITATION DISTRICT
Dated: By:
Chair Board of Directors
Dated: By:
Clerk of the Board
Dated: By:
Contracts/Purchasing Manager
CENTURY PAVING, INC.
Dated: By:
Print Name and Title of Officer
IRS Employer's I.D. Number
Orange County Sanitation District
Approved as to Form:
Clarice M. Marcin Date
Senior Contracts Administrator
Orange County Sanitation District 7 of 7 Specification Nos. FRI I-025&FRI1-026
Orange County Sanitation District
Plant 1 and 2 Asphalt Replacement
Specification No. FR11-025 and FRI1-026
Exhibit"A"
Technical Specifications as Modified by
Addendum No.1 to the Notice Inviting Bids
Orange County Sanitation District Specification Nos. FRII-025&FRII-026
Return to Agenda
OPERATIONS COMMITTEE Meeting Date T018d 4D11.
11/07/12 1
/28
/12
AGENDA REPORT Item Number Rem Number
s
Orange County Sanitation District
FROM: James D. Ruth, General Manager
Originator: Jim Herberg, Assistant General Manager
Project Manager: Gary Conklin
SUBJECT: PHASE 2 FACILITY-WIDE SAFETY ASSESSMENT, PROJECT
NO. SP-145-1
GENERAL MANAGER'S RECOMMENDATION
A. Approve a budget increase of$630,000, for a total project budget of$930,000;
B. Approve a Professional Services Agreement with Arcadis U.S., Inc., for Phase 2
Facility-Wide Safety Assessment, Project No. SP-145-1, providing for services for
an amount not to exceed $686,400; and,
C. Approve a contingency of$68,640 (10%).
SUMMARY
Three firms responded to a Request for Proposal (RFP) by submitting proposals.
Orange County Sanitation District (Sanitation District) staff reviewed the proposals in
accordance with Sanitation District policy. Based on the overall qualifications,
expertise, and cost, staff recommends awarding a Professional Services Agreement
(PSA)to Arcadis U.S., Inc. (Arcadia)for an amount not to exceed $686,400.
A budget increase was anticipated during preparation of the current budget. However,
the phase 1 study did not deliver the final budget estimates before the budget
preparation deadline. Therefore, staff is now requesting a $630,000 budget increase to
$930,000.
The Sanitation District has $6 billion in assets that have been constructed over the past
50 years. The safety regulations under which the projects have been constructed have
changed and become more stringent over time.
The proposed PSA includes a comprehensive safety assessment of Plant Nos. 1 and 2,
and the outlying 15 pumping stations. The PSA also includes the development of
facility-wide safety standards.
This comprehensive study is recommended after several audits were conducted to
understand the current state of compliance with current safety regulations and codes.
Page 1 of 4
The Sanitation District has continued to deal with historical safety deficiencies on a
case-by-rase basis over the last 20 years. The two primary drivers for past work have
been new regulatory guidance and potential risk to the employees.
While we believe that outstanding risk of potential injuries is very low, the consequence
of injuries can remain high. Also, the cost to correct structural deficiencies has been
high when dealing with these issues on a case-by-case or change order basis.
Upon completion of the study, the Sanitation District will benefit greatly by having
consistent facility-wide safety standards, and an implementation plan that prioritizes
remaining safety-related upgrades across the Capital Improvement Program (CIP).
This includes efficiently packaging safety-related upgrades in the design projects.
ADDITIONAL INFORMATION
Request for Proposals
An RFP which outlined the Scope of Work and selection criteria for this study was sent
to all firms who were registered in the Online Bidding System. Three proposals were
received. A panel of staff members reviewed and ranked each proposal in accordance
with the evaluation process set forth in the Sanitation District's Resolution No. OCSD
07-04, Section 5.07.
The proposals were evaluated according to the following criteria:
Item I Weighting
1 Understanding of the Scope of Work 20%
2 Project Approach 20%
3 Qualifications of the Team 20%
4 Qualifications of the Firm 20%
5 Price 20%
TABLE 1
PROPOSAL EVALUATION
Consultant Evaluator Arcadia Bureau Veritas Dansure
Rank Rank Rank
Reviewer A 1 2 3
Reviewer B 1 2 3
Reviewer C 1 2 3
Reviewer D 1 2 3
Reviewer E 1 2 3
Average Rank 1 2 3
Overall Rankin 1 2 3
Proposal Fee $722,303 $649,913 $862,980
Page 2 of 4
Consultant Evaluator Arcadis Bureau Veritas Dan sure
Rank Rank Rank
Negotiated Fee Proposal $686,400
The Arcadis team has the combination of safety assessment experience and
wastewater treatment plant design experience needed to identify and prioritize safety
issues, and provide cost-effective solutions that insure safety and maintain operational
efficiency.
Staff conducted negotiations with Arcadis to clarify the requirements of the Scope of
Work and to establish the final negotiated fee. Elements reviewed include total labor
hours and labor-hour distribution by task as related to the work items, labor overhead
rates, and profit calculations. These elements are compared to budgeted amounts,
RFP requirements, industry standards, historical data, and Sanitation District guidelines.
Based on the above, staff determined the final cost proposal to be fair and reasonable
for the Scope of Work.
Background:
In late 2010 through early 2011, staff identified the need for a facility-wide safety
assessment in order to develop a comprehensive plan to address safety issues at
Sanitation District facilities.
A budget increase was anticipated during preparation of the current budget. However,
the phase 1 study did not deliver the final budget estimates before the budget
preparation deadline. Therefore, staffs are now requesting a $630,000 budget increase
to $930,000.
Scope of Work:
The proposed study will perform a comprehensive health and safety assessment of the
Sanitation District wastewater treatment and collections facilities. This includes the
treatment plants in Fountain Valley (Plant No. 1) and Huntington Beach (Plant No. 2),
and 15 pump stations.
The Scope Elements are summarized below:
1. Develop standards (Protocol) for this evaluation and future Sanitation District
designs.
2. Inventory all deficiencies.
3. Provide a risk rating (Severity, Frequency, and Probability).
4. Identify alternative solutions with cost estimates.
5. Develop an implementation plan to prioritize safety-related upgrades.
These above elements will be applied to the following 19 safety categories:
Page 3 of 4
Battery Areas, Classified Locations, Electrical Systems, Emergency Address and
Communications Systems, Emergency Lighting and Exit Signs, Ergonomics, Fall
Protection, Fire Extinguishers, Floor and Working Space Loads, Gas Detection
Systems, Hot Pipes and Surfaces, Lockout/Tagout and Motor Control Center Labeling,
Machine Guarding, Noise, Pump Stations, Stairs and Ladders, Tunnels, Ventilation, and
Walking Working Surfaces.
This study will prioritize safety-related CIP efforts. The goal is to enhance the health
and safety of workers and visitors, meet regulatory compliance, reduce liability, provide
standards for future improvements, and ultimately provide the most value from safety-
related expenditures.
PRIOR COMMITTEE/BOARD ACTIONS
None.
CEQA
Notice of Exemption was filed on April 14, 2011.
BUDGET/DELEGATION OF AUTHORITY COMPLIANCE
This request complies with authority levels of the Sanitation District's Delegation of
Authority. This item has been budgeted (FY2012-13, Section 8, Page 114) at$300,000,
which is insufficient. Staff recommends a budget transfer of $630,000 from the
Replacement, Rehabilitation, and Refurbishment funds (FY2012-13,
Section 14, line 13).
Date of Auoroval Contract Amount Continaencv
11/28/12 $686,400 $68,840 (10%)
ATTACHMENT
The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the
complete agenda package and attachments:
( Professional Services Agreement (16 pages)
GC:sa
Page 4 of 4
PLANNING SERVICES AGREEMENT
THIS AGREEMENT, is made and entered into to be effective the 28" day of November,
2012, by and between the ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to
as "SANITATION DISTRICT", and ARCADIS U.S., Inc., for purposes of this AGREEMENT
hereinafter referred to as "CONSULTANT'. The SANITATION DISTRICT and CONSULTANT
are referred to herein collectively as the "Parties" or individually as a "Party."
WITNESSETH:
WHEREAS, the SANITATION DISTRICT desires to engage a consultant for Phase 2
Facility Wide Safety Assessment, Project No. SP-145-1, to provide planning services and
produce a study for comprehensive health and safety assessment of the SANITATION
DISTRICT wastewater treatment and collections facilities which includes the treatment plants in
Fountain Valley (Plant No. 1) and Huntington Beach (Plant No. 2), and 15 pump stations; and,
WHEREAS, CONSULTANT is qualified to provide the necessary services in connection
with these requirements and has agreed to provide the necessary planning services; and,
WHEREAS, the SANITATION DISTRICT has adopted procedures for the selection of
planning services and has proceeded in accordance with said procedures to select
CONSULTANT to perform this work; and,
WHEREAS, at its regular meeting on November 28, 2012 the Board of Directors, by
Minute Order, accepted the recommendation of the Operations Committee to 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 planning 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. In the event of
a conflict between the Scope of Work and this AGREEMENT, the terms of this
AGREEMENT shall prevail.
A. The CONSULTANT shall be responsible for the professional quality, technical
accuracy, and completeness of the work and 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 applicable laws,
regulations, 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.
PSA PROJECT NO.SP-145-1
PHASE 2 FACILITY WIDE SAFETY ASSESSMENT
Page 1 of 16
B. CONSULTANT is responsible for the quality of work prepared under this
AGREEMENT and shall ensure that all work is performed to the standards of
best professional practice for clarity, uniformity, and completeness.
CONSULTANT shall timely respond to all comments, suggestions, and
recommendations from the SANITATION DISTRICT. All comments from the
SANITATION DISTRICT, or its agent, shall be incorporated into the report prior
to the next review deadline or addressed, in writing, as to why the comment(s)
has/have not been incorporated. CONSULTANT shall ensure that each
submittal is 100% accurate for the level of work submitted (i.e. correct
references, terms, capitalization or equal status, spelling, punctuation, etc.)
C. In the event that CONSULTANT's services and/or work product(s) is not to the
satisfaction of the SANITATION DISTRICT and/or does not conform to the
requirements of this AGREEMENT or the applicable industry standards, the
CONSULTANT shall, without additional compensation, promptly correct or revise
any errors or deficiencies in its work product(s)within the timeframe specked 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. Any CAD drawings, figures, and other work shall be produced by CONSULTANT
and Subconsultants using the SANITATION DISTRICT CAD Manual.
Conversion of CAD work from any other non-standard CAD format to the
SANITATION DISTRICT format shall not be acceptable in lieu of this
requirement.
Electronic files shall conform to the Format for Deliverables listed in "Attachment
A", Scope of Work. Any changes to these specifications by the CONSULTANT
require advance written approval of the SANITATION DISTRICT.
E. All planning services performed by the CONSULTANT, including, but not limited
to, all drafts, data, correspondence, proposals, and reports 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 party 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, or(b)subsequently becomes publicly known to the
CONSULTANT other than through disclosure by the SANITATION DISTRICT.
Except for Subconsultants covered by Section 2 (a) neither the documents nor
their contents shall be released to any third party without the prior written consent
of the SANITATION DISTRICT.
PSA PROJECT NO.SP-145-1
PHASE 2 FACILITY WIDE SAFETY ASSESSMENT
Page 2 of 16
2. COMPENSATION. Total compensation shall be paid to CONSULTANT for services
performed in accordance with the following provisions:
A. Total Compensation
Total compensation for the services provided under this AGREEMENT shall be
in an amount not to exceed Six Hundred Eighty Six Thousand Four Hundred
Dollars ($686,400) ('Total Compensation"). Total Compensation to
CONSULTANT, which includes burdened labor(salaries plus benefits),
overhead, profit, direct costs, and Subconsultant(s)fees and costs, shall not
exceed the sum set forth herein.
As a portion of the Total Compensation, CONSULTANT shall pay to all
Subconsultants, excluding out-of-pocket costs, on an hourly-rate basis per
Attachment"B" The SANITATION DISTRICT shall pay to CONSULTANT the
actual costs of Subconsullanl fees and charges subject to the limitations set forth
herein.
Profit for CONSULTANT shall be 9.2851%. Amendments shall be governed by
the established profit percentage stated in the RFP. The profit percentage shall
apply to the Prime CONSULTANT and all Subconsultants.
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 fully
burdened salaries (salaries plus benefits, overhead and profit) charged on an
hourly-rate basis to this Project. CONSULTANT and Subconsultants will provide
the SANITATION DISTRICT with certified payroll records of all employees where
time is charged to this Project if requested. The benefits rate is 52% of the
burdened labor paid by CONSULTANT.
C. Overhead. As a portion of the total compensation to be paid to CONSULTANT,
the SANITATION DISTRICT shall compensate CONSULTANT for overhead at a
rate equal to 80% of burdened labor paid by CONSULTANT pursuant to this
Compensation Section hereof.
D. Subconsultants. CONSULTANT shall pay all Subconsultants in accordance with
Section 2. Total Compensation. Payments shall be based on the hourly-rates
per the schedule attached hereto as Attachment'B".
E. Direct Costs. As a portion of the Total Compensation, the SANITATION
DISTRICT shall reimburse CONSULTANT and Subconsultants for the expenses
described as Other Direct Costs, and identified as allowable on Attachment"D"
hereto that CONSULTANT and Subconsultants actually incur in performance of
this AGREEMENT. Attachment"D" is hereby incorporated by reference.
Reimbursement for Other Direct Costs for CONSULTANT and all Subconsultants
shall not include markup of any kind. CONSULTANT shall provide to the
SANITATION DISTRICT itemized receipts, regardless of amount, and other
documentary records to support each request for reimbursement. SANITATION
DISTRICT shall pay to CONSULTANT the actual direct costs for an amount not
to exceed Thirty Nine Thousand Six Hundred Seven Dollars ($39,607). The
PSA PROJECT NO.SP-145-1
PHASE 2 FACILITY WIDE SAFETY ASSESSMENT
Page 3 of 16
SANITATION DISTRICT shall also pay to CONSULTANT actual costs for
equipment rentals, leases or purchases with prior written approval of the
SANITATION DISTRICT. All incidental expenses shall be included in overhead
pursuant to Compensation Section above. (See Attachment B).
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. 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.
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 an 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.
5. PAYMENT
A. CONSULTANT will submit monthly statements covering services and/or work
performed for payment for those items included in Section 2 hereof no later than
the second Wednesday of the following month and in the format required by the
SANITATION DISTRICT. The format must include, as a minimum: 1) current
billing period invoicing, 2)current billing period "total percent invoiced to date",
3)future activities, 4) previous billing period "total invoiced to date", 5) potential
items that are not included in the Scope of Work, 6) concerns and possible
PSA PROJECT NO.SP-145-1
PHASE 2 FACILITY WIDE SAFETY ASSESSMENT
Page 4 of 16
delays, 7) percentage of completion to date, and 8) budget status and amount
remaining. Such requests shall be accompanied by such supporting data as may
be required by the SANITATION DISTRICT.
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 warrant and
certify the accuracy of these costs and provide all support documentation
required by the SANITATION DISTRICT. CONSULTANT understands that
submitted costs are subject to Section 12 Audit Provisions.
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,
The SANITATION DISTRICT may, at the discretion of the Director of
Engineering, 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 the
Project in its entirety.
B. 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 based on the monthly statements, including any
retained percentages relating to this portion of the work.
C. 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.
D. 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 $10,000 civil penalty for each
false claim submitted. This section shall also be binding on all Subconsultants.
PSA PROJECT NO.SP-145-1
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Page 5 of 16
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
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(a) 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.
6. PREVAILING WAGES
To the extent CONSULTANT intends to utilize employees who will perform work during
the contract, as more specifically defined under Labor Code Section 1720,
CONSULTANT shall be subject to prevailing wage requirements with respect to such
employees.
7. DOCUMENT OWNERSHIP— SUBSEQUENT CHANGES TO PLANS AND
SPECIFICATIONS—CONSULTANT PERFORMANCE
A. Ownership of Documents for the Planning Services performed, all documents in
all forms (electronic, paper, etc.), including, but not limited to, studies, sketches,
drawings, computer printouts, disk files, and electronic copies prepared in
connection with or related to the Scope of Work or Planning 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
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 Planning 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 study or deliverable 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.
C. 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
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SANITATION DISTRICT and may be considered in future CONSULTANT
selection processes.
8. 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 Vill, 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 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) must be
included in the 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.
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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 One Million Dollars ($1,000,000)or
alternatively, One Million Dollars ($1,000,000) 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.
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 Two Million Dollars
($2,000,000)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
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.
PSA PROJECT NO.SP-145-1
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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 or equivalent.
• Additional Insurance (ISO Form) CG2010 1185 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
(Auto Liability) the 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.
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-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
PSA PROJECT NO.SP-145-1
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Page 9 of 16
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 Contracts Administration, Division
230, 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.
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.
PSA PROJECT NO.SP-145-1
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Page 10 of 16
9. SCOPE CHANGES. In the event of a change in the Scope of Work or a change in the
proposed Project, as requested by the 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,
changes in the period of performance, or modifications to the Scope of Work.
CONSULTANT must obtain written approval from the SANITATION DISTRICT Project
Manager prior to performing any work outside the approved Scope of Work.
When CONSUTLANT foresees the possibility that any of the Project goals will not be
met, CONSULTANT shall immediately notify the SANITATION DISTRICT Project
Manager to discuss a corrective plan. A corrective plan will be required for any changes
to Attachment"A", Scope of Work, schedule, budget, or level of quality.
10. 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 under this AGREEMENT by CONSULTANT.
CONSULTANT shall include a description of the work and services to be done by each
Suboonsultant and each of 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.
11. ENGINEERING REGISTRATION. The CONSULTANT's employees and Subconsultants
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, the services of a registered
engineer is required, such services hereunder will be performed under the direct
supervision of registered engineers who are registered in California.
12. 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
subagreements, 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
PSA PROJECT NO.SP-145-1
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Page 11 of 16
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.
13. LEGAL RELATIONSHIP BETWEEN PARTIES. The legal relationship between the
parties hereto is that of an independent contractor and nothing herein shall be deemed
to transform CONSULTANT, its staff, independent contractors, or Subconsultants into
employees of the SANITATION DISTRICT. CONSULTANT'S staff performing services
under the AGREEMENT shall at all times be employees and/or independent contractors
of CONSULTANT. CONSULTANT shall monitor and control its staff and pay wages,
salaries, and other amounts due directly to its staff in connection with the AGREEMENT.
CONSULTANT shall be responsible for hiring, review, and termination of its staff and
shall be accountable for all reports and obligations respecting them, such as social
security, income tax withholding, unemployment compensation, workers' compensation
and similar matters.
14. 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 and addressed as follows:
ORANGE COUNTY SANITATION DISTRICT
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
Attention: Sarah L. Strader, Senior Contracts Administrator
CONSULTANT:
ARCADIS U.S., Inc.
8001 Irvine Center Drive
Suite 1100
Irvine, CA 92618
Attention: Joseph A. Laurie, PE, BCEE
All communication regarding the Scope of Work, will be addressed to the Project
Manager. Direction from other OCSD staff must be approved by the OCSD Project
Manager prior to action from the CONSULTANT.
PSA PROJECT NO.SP-145-1
PHASE 2 FACILITY WIDE SAFETY ASSESSMENT
Page 12 of 16
15. 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 at the address
listed in Paragraph 14.
16. 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, electronic materials, computation
and study materials in its files pertaining to the work described in this AGREEMENT,
which is requested in writing by the SANITATION DISTRICT.
17. 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.
18. 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 this AGREEMENT for that
Party.
19. 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.
20. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS. If any action at
law or inequity 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 he may be entitled.
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).
PSA PROJECT NO.SP-145-1
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Page 13 of 16
22. INDEMNIFICATION. To the fullest extent permitted bylaw, 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, CONSULTANT's, 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 CONSULTANT'S fees and costs and
the SANITATION DISTRICT'S general and administrative expenses; individually, a
"Claim"; collectively, "Claims")which may arise from, pertain to, or relate 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 Indemnified Parties from any Claim arising solely from:
(A)the 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 duly 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
PSA PROJECT NO.SP-145-1
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Page 14 of 16
result in an obligation to indemnify 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.
24. 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.
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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.
/ ORANGE COUNTY SANITATION DISTRICT
M rc Dubois (Approved as to Form) Date
ontracts, Purchasing and Materials
Management Division Manager
By
Chair, Board of Directors Date
By
Clerk of the Board Date
ARCADIS U.S., INC.
By
Date
By
Date
ORANGE COUNTY SANITATION DISTRICT
By
Marc Dubois Date
Contracts, Purchasing and Materials
Management Division Manager
Attachments: Attachment"A"—Scope of Work
Attachment"B"—Labor Hour Matrix
Attachment"D"—Allowable Direct Costs
Attachment"G"—Cost Matrix
SLS:yp
EDMS:003965289
PSA PROJECT NO.SP-145.1
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Return to Agenda
OPERATIONS COMMITTEE MeedngDate To ad.of Di,
11,07,12 --
AGENDA REPORT Item Number Item Number
6
Orange County Sanitation District
FROM: James D. Ruth, General Manager
Originator: Nick Arhontes, P.E., Director of Facilities Support Services
Engineering Manager: Mark Esquer, P.E., FSSD
SUBJECT: SERVICE AREA 11 WINTERSBURG CHANNEL SIPHON VENT
REPLACEMENT, PROJECT NO. FR11-017
GENERAL MANAGER'S RECOMMENDATION
A. Authorize the General Manager to competitively bid and subsequently award a
contract to the lowest responsive and responsible bidder, for the SA-11
Wintersburg Channel Siphon Vent Replacement Project No. FR11-017, for an
amount not to exceed $170,000; and
B. Approve a contingency of$34,000 (20%).
SUMMARY
The work will take place on the north side of the Warner Avenue Bridge where a siphon
vent for the Knott Interceptor Sewer is routed above ground. It runs along and under the
roadway's bridge as it crosses the Wintersburg Channel between Springdale Street and
Graham Street in the City of Huntington Beach.
The work covered under this contract will replace 120 feet of the above ground portion
of a siphon vent line (air jumper) and repair concrete damage on a bridge pile cap
extension that supports the vent line. The new section of 16-inch fiberglass reinforced
plastic vent line includes expansion joints and new anchors that will accommodate
thermal expansion and contraction. The repairs are necessary because the siphon vent
line cracked, allowing corrosive condensation water to leak and damaged the bridge pile
cap extension. The condensation water that builds up inside the vent line contains
sulfuric acid that can be very corrosive to concrete.
The contractor will use a special under-bridge access work platform to perform the
repairs without having to enter the Wintersburg Channel which is an environmentally
sensitive area and has restricted access. The contractor will also provide temporary
support bracing for an existing 18-inch diameter steel waterline owned by the City of
Huntington Beach that runs along the bridge adjacent to the siphon vent line. Any
needed permits have been coordinated with the City of Huntington Beach. Coordination
with the County of Orange for this maintenance has been initiated.
It is very important to complete the repairs to the siphon vent line and pile cap extension
prior to the County of Orange's East Garden Grove Wintersburg Channel
Page 1 of 3
Improvements. This work by the County is expected to begin in the first part of
December 2012 and will be under construction for approximately 14 months. OCSD's
project schedule is estimated at 45 calendar days after the "notice to proceed" has been
issued. At this time, it is expected to be completed by January 15, 2013.
The Orange County Sanitation District advertised for bids per plans and specs on
October 16, 2012. Electronic bids will be received on November 13, 2012. The bids will
be evaluated in accordance with the OCSD's policies and procedures and awarded to
the lowest responsive and responsible bidder.
PRIOR COMMITTEE/BOARD ACTIONS
None
ADDITIONAL INFORMATION
The Warner Avenue Bridge and the OCSD's Wintersberg Channel Siphon Vent were
originally built in 1967. OCSD owns two siphons where Warner Avenue crosses the
Wintersburg Flood Control Channel. One siphon is on the north side of the bridge and
one is on the south side of the bridge. Each siphon has a vent line that is routed above
ground on the outer edges of the bridge. Only the north siphon needs repair. The
Orange County Flood Control District operates and maintains the Wintersburg Flood
Control Channel (OCFCD Facility No. C05) under an easement right. The underlying
fee owner is the State of California, State Lands Commission.
(The engineer's current cost estimate for the project is $170,000. Payment to the
contractors will be based on the actual bid amount and any approved change orders if
needed.)
Inverted siphons are facilities commonly used in a gravity sewer system to convey
wastewater under existing facilities in its path. These existing facilities can be owned
and operated by others and include rivers, flood control channels, storm drain pipes, or
pressure pipelines. A gravity sewer line is designed to not flow full at design capacity
and foul air circulates above the water surface in the pipe as the water moves
downstream. Since the inverted siphon is full of wastewater, no air movement can take
place which cause the foul air to back up to the nearest upstream manhole. This can
cause odor complaints as the air is forced out. A means to provide for proper air
conveyance is to install vent pipes connecting the upstream manhole to the downstream
manhole. We call these vent pipes "air jumpers."
CEQA
N/A
BUDGET/DELEGATION OF AUTHORITY COMPLIANCE
Page 2 of 3
This request complies with authority levels of the Sanitation District's Delegation of
Authority. This repair will be funded through the Small Capital
Replacement/Rehabilitation Project - SP-34 (Budget Update Fiscal Year 2012-2013 and
2013-2014 Misc. & Support Projects; Section 8 — Page 111). This Small Capital fund is
used to pay for capital repairs and/or direct replacements. The SP-34 budget is
adequate to cover this project.
Date of Approval Contract Amount Contingency
11/07/12 $170,000 $34,000(20%)
ATTACHMENTS
None
SS:am:dm:gc
Page 3 of 3
Return to Agenda
OPERATIONS COMMITTEE Mewing Dare TOBd.O(Dlr.
11/07/12 11R8/12
AGENDA REPORT Itern Number Item Number
7
Orange County Sanitation District
FROM: James D. Ruth, General Manager
Originator: Jim Herberg, Assistant General Manager
Project Manager: Jim Colston, Environmental Compliance Manager
SUBJECT: Orange County Waste and Recycling Waste Disposal Agreement
GENERAL MANAGER'S RECOMMENDATION
Approve a Waste Disposal Agreement with the County of Orange (Orange County
Waste and Recycling) for the County to receive and dispose of the Orange County
Sanitation District's biosolids at the Prima Deshecha Landfill, subject to available
capacity, for the period commencing on December 1, 2012 through June 30, 2020, with
a renewal option of 10-years in a total annual amount not to exceed $3,605,288.
SUMMARY
The Orange County Sanitation District's (OCSD) biosolids management policy
(Resolution OCSD 06-10) seeks to maintain a long-term sustainable biosolids program.
To carry out this policy, OCSD continues to implement a diverse program of multiple
biosolids contractors, markets, and facilities while maintaining fail-safe back-up capacity
and developing in-county facilities and markets. For this reason, OCSD has been
collaborating with the County of Orange, Orange County Waste and Recycling (County),
to provide an in-county option to manage OCSD's biosolids. This option will reduce
hauling mileage and cost for OCSD.
The County offers to receive and dispose of OCSD's biosolids at their Prima Deshecha
Landfill (Prima), subject to available capacity, at a tipping fee of $39.51 per ton of
biosolids. This contract rate is subject to Consumer Price Index and other adjustments
by the County.
The term of the Waste Disposal Agreement (WDA) is for a period of seven years
(December 1, 2012 to June 30, 2020), with one renewal option for
10-years. With a hauling fee of $6 per ton (Yule Ranch Biosolids Contract, effective
January 1, 2013), the total cost for disposal at Prima is $45.51 per ton during the first
year, which will be OCSD's lowest cost biosolids management option.
PRIOR COMMITTEE/BOARD ACTIONS
November 2011: Approval of the 2011 Strategic Plan.
Page 1 of 6
ADDITIONAL INFORMATION
The Prima Deshecha Sanitary Landfill (Prima) is located in the City of San Juan
Capistrano. The landfill was opened in 1976 and is scheduled to close in 2067.
Designated as a Class III landfill, Prima is permitted to accept a maximum of 4,000 tons
per day (TPD) of construction, demolition, mixed municipal and industrial waste,
including a maximum of 350 TPD of biosolids/wastewater sludge. The biosolids must
be co-disposed with refuse at a minimum ratio of five-to-one (5/1) municipal waste to
biosolids. In addition, the site is permitted to receive a maximum traffic volume of 1797
vehicles per day. Presently, Prima is the only landfill in Orange County that is permitted
to accept biosolids, which is not used as an Alternative Daily Cover. The biosolids are
mixed with other solid waste material and covered with soil.
The South Orange County Wastewater Authority (SOCWA) is currently the only agency
in Orange County that is sending biosolids to Prima. Their contract is limited to 85 TPD
of biosolids. Prima is receiving an average of 1,000 to 1,100 tons of refuse per day. In
applying biosolids ratio, this means that Prima can accept a total of 200-220 TPD of
biosolids. Thus, the remaining available tonnage, subtracting SOCWA's reserved
capacity of 85 TPD, is approximately 115-135 TPD. Under OCSD's current policy,
OCSD may send a maximum of 100 TPD of the biosolids, which is within Prima's landfill
capacity.
General Provision of the Waste Disposal Agreement:
Permitted Biosolids Disposals: Subject to available capacity (0-135 Wet
Tons Per Day or more). If OCSD uses a
landfill for biosolids management, OCSD
must use Prima first, up to the amount that
the County is able to receive (excluding
emergencies). OCSD has no minimum
requirement to use the landfill.
Contract Rate: ( Base Tipping Fee (with Current CPI):
$31.37
( 10% (Increase for post 2010 agencies
entering into Waste Disposal
Agreement)
( $5 (Special Service Fee-Fixed cost)
( Total Tipping Fee: $39.51 per ton
( Contract rate is subject to Consumer
Price Index adjustments.
Contract Term: From December 1, 2012 to June 30, 2020
— Option to renew for an additional 10
Years.
Page 2 of 6
Estimated Annual Net Savings with OC Landfill Option Online:
Current Cost Distribution without EnerTech
% Tons Per Cost per ton Total annual cost
Vendor Location Allocated Da wlfuelper site
S na ro South Kern 35% 260 $ 74.50 $ 7,070,050
S na ro AZ Soils 19% 140 $ 63.50 $ 3,244,850
Tule Ranch Yuma- Famt 47% 350 $ 56.00 $ 7,154,000
100% 750 Total Cost: $17,468,900
Proposed Cost Distribution with OC Landfill
% Tons per Cost per ton Total annual cost
Vendor Location Allocated day wlfuelper site
S na ro South Kern 33% 250 $ 74.50 $ 6,798,125
S na ro AZ Soils 10% 75 $ 63.50 $ 1,738,313
Tule Ranch Yuma- Farm 43% 325 $ 56.00 $ 6,643,000
OC Landfill
Tule Ranch Prima 13% 100 $ 45.51' $ 1,661,115
100% 1 750 1 Total Cost: 1 $16,840,553
Annual Net Savings with OC Landfill I $628,348
1. $39.51 Tipping Fee plus$6 Hauling C sVlruckload(25 tons)-Hauling cost effective 1lil13
Potential Risks:
During the course of negotiations with the County, OCSD identified potential risks
associated with the proposed indemnification language of the WDA. Currently, there
are 32 cities, three sanitary districts, and one Joint Powers Authority with existing WDAs
with the County. The proposed indemnification language in the WDA with OCSD is
identical to the other existing WDAs. The County has taken the position that it cannot
alter or modify the original language in a manner that is more favorable than the original
WDAs per the standard agreement. Despite negotiations, the County remains resolute
not to modify the indemnification language.
The proposed indemnification language is narrow in scope, only providing indemnity for
claims arising out of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA). Even with such indemnification, in the event the County
exhausts all of its resources to defend such a claim or to remediate environmental
conditions that arise out of CERCLA, OCSD may end up paying a portion of such cost
by way of the County increasing the contract rate to offset the costs. As presented,
other than CERCLA claims, OCSD will not be fully protected from other claims,
including tort or nuisance abatement actions, arising from the County's management
and operations of Prima.
Page 3 of 6
The County has been operating Prima since 1976, and the County has been receiving
and disposing of biosolids into the landfill without any of the above issues occuring.
Similar to OCSD, the County is stringently regulated by local, state, and federal
agencies and is required to comply with regulations to protect public health and the
environment.
CEQA
OCSD, as lead agency, prepared a Program Environmental Impact Report (PIER)
entitled "Orange County Sanitation District 1999 Strategic Plan Program Environmental
Impact Report," State Clearinghouse No. 97101065 (the 1999 PEIR). The Board
certified the 1999 PEIR on October 27, 1999, and OCSD filed a Notice of Determination
on October 29, 1999. The 1999 Strategic Plan analyzed the wastewater collection,
treatment, and disposal facilities needed to accommodate the projected growth in
OCSD service area through the year 2020, and recommended expansion of OCSD's
facilities. The 1999 Strategic Plan projected an increase in OCSD biosolids production
from the 199611997 baseline level of 180,000 wet tons per year (WTPY), and 7,200
annual haul truck trips, to 421,000 WTPY and 16,840 annual haul truck trips. The 1999
PEIR analyzed the environmental effects of the 1999 Strategic Plan. The 1999 PEIR
assumed that an additional 38 haul truck trips per day would be required to
accommodate the projected increase in biosolids production (from the baseline of 27
truck trips per day to 65 truck trips per day in 2020). The 1999 PEIR assumed that less
than one truck trip per day would travel from OCSD's facilities to the Landfill.
The County, as lead agency, prepared a Program Environmental Impact Report entitled
"2001 Prima Deshecha General Development Plan Program Environmental Impact
Report," State Clearinghouse No. 99041035 (the 2001 PEIR). The County certified the
PEIR on November 6, 2001 and filed a Notice of Determination on November 6, 2001.
The 2001 PEIR evaluated the environmental impacts associated with long-term
development and implementation of the Prima site, including the continued use of the
site for landfill purposes. The 2001 PEIR analyzed the environmental impacts
associated with an increase in waste disposal at Prima from 2,500 tons per day (TPD)
in 2001 to 4,000 TPD in 2014 (and thereafter until 2067). The 2001 PEIR assumed that
350 TPD of the anticipated 4,000 TPD disposed at Prima would be biosolids.
The activities contemplated in the WDA are subsequent activities within the scope of the
1999 PEIR and the 2001 PEIR. OCSD's total biosolids production is currently 20-30
truck trips per day, which is within the scope of biosolids production analyzed in the
1999 PEIR of up to 65 truck trips per day. The WDA does not call for an expansion of
OCSD's biosolids production. It is contemplated that under the WDA, OCSD will
dispose 100 TPD of biosolids at Prima, or 4 truck trips per day. The South Orange
County Wastewater Authority (SOCWA) is currently disposing 25 TPD of biosolids at
Prima, or 1 truck trip per day. The combination of the existing disposal by SOCWA at
Prima (25 TPD) and OCSD's projected disposal at Prima under the WDA (100 TPD), or
125 TPD, is within the 350 TPD analyzed by the 2001 PEIR. Although the WDA calls
for a small increase in the daily truck trips analyzed in the 1999 PEIR from OCSD to
Prima, from less than 1 truck trip per day to up to 4 truck trips per day, this increase is
Page 4 of 6
de minimis. In fact, the truck trips to Prima may actually reduce impacts created by
existing conditions. The truck trips to Prima anticipated in the WDA will take the place
of currently existing trips to the EnerTech Facility in San Bernardino County. The truck
trips to the EnerTech facility are approximately 60 miles each way. The truck trips to
Prima are approximately 28 miles each way. The truck trips to Prima will accordingly
result in a substantial reduction in the total vehicle miles traveled. OCSD has
determined, therefore, that the WDA is within the scope of the 1999 PEIR and the 2001
PEIR and that no additional documentation is required. (Public Resources Code
§ 21166; CEQA Guidelines §§ 15168, 15162).
Even if the WDA was not within the scope of these prior PEIRs, the activities
contemplated within the WDA are exempt from CEQA pursuant to: (1) CEQA's Class 1
Exemption (CEQA Guidelines § 15301); and (2) CEQA's "Common Sense" Exemption
(CEQA Guidelines § 15061(b)(3)). The Class 1 exemption applies to the operation,
repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public
or private facilities involving negligible or no expansion of a use beyond the use existing
at the time of the lead agency's CEQA determination. (Cal. Code Regs., Tit. 14, §
15301.) Under existing conditions, Prima is receiving 1 truck trip per day of biosolids for
disposal from SOCWA. Under the WDA, Prima will receive a total of 5 truck trips per
day of biosolids for disposal, including 1 truck trip per day from SOCWA and 4 truck
trips per day from OCSD. This is an increase of 4 truck trips per day. OCSD's rate of
operation and biosolids production will not change under the WDA. As a result, the
WDA calls for the operation of existing public facilities involving a negligible expansion
of the uses existing at the time that OCSD's Board considers the WDA and makes its
CEQA determination. The Agreement is therefore exempt from CEQA review pursuant
to CEQA Guidelines Section 15301.
CEQA'S "Common Sense" Exemption applies where it can be seen with certainty that
there is no possibility that the activity in question may have a significant effect on the
environment (CEQA Guidelines § 15061(b)(3)). In order to determine whether a project
will have a significant environmental effect, a lead agency must first define the baseline
environmental conditions. The "project" for CEQA purposes consists of changes in the
baseline conditions, if any, that the lead agency's action will cause. The baseline
usually consists of the physical conditions that exist when the lead agency commences
CEQA review (CEQA Guidelines § 15125(a)). As explained above, the WDA calls for
an increase in biosolids disposal at Prima from 1 truck trip per day to 5 truck trips per
day, or a total increase of 4 truck trips per day. This is a De Minimis increase in existing
conditions. OCSD's rate of operation and biosolids production will not change under the
WDA. And, the truck trips to Prima will take the place of existing trips to the EnerTech
facility in San Bernardino County, which will result in a substantial reduction in the total
vehicle miles traveled by OCSD trucks.
It can be seen with certainty, therefore, that there is no possibility that the WDA may
have a significant effect on the environment and the WDA is exempt from CEQA review
pursuant to CEQA Guidelines Section 15061(b)(3).
Page 5 of 6
BUDGET/DELEGATION OF AUTHORITY COMPLIANCE
This request complies with authority levels of the Sanitation District's Delegation of
Authority. This item has been budgeted. (Line item: Section 5, Page 6). Project
contingency funds will not be used for this Agreement.
Date of Auoroval Contract Amount Contingency
11/28/12 $3,605,288 N/A
ATTACHMENT
The following attachment(s)may be viewed on-line at the OCSD website (i w .ocsd.com) with the
complete agenda package and attachments:
( Waste Disposal Agreement (23 pages)
JC:sa:gc
Page 6 of 6
WASTE DISPOSAL AGREEMENT
Between
THE COUNTY OF ORANGE,CALIFORNIA
and
the
ORANGE COUNTY SANITATION DISTRICT
Dated_2012
County Authorization Date: District Authorization Date:
County Notice Address: District Notice Address:
Director
OC Waste&Recycling
300 N.Flower Street,Suite 400
Santa Ana,CA 92703
Ewe uti.Copy
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 DEFINITIONS..................................................................................................................................2
Section 1.2 INTERPRETATION.........................................................................................................................6
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF THE DISTRICT...............................................7
Section 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY.................................................8
ARTICLE Ill
DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE
Section 3.1 DELIVERY OF WASTE..._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.................8
Section 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY_.................................._....... .........9
Section 3.3 COUNTY RIGHT TO REFUSE WASTE...... ...................................... ...10
Section 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE...............................................................11
Section 3.5 MISCELLANEOUS OPERATIONAL MATTERS....... ...........................................................
Section 3.6 OTHER USERS OF THE DISPOSAL SYSTEM. .................................................................
........11
Section 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES...................................................12
ARTICLE IV
DISTRICT CONTRACT RATE
Section 4.1 CHARGING AND SECURING PAYMENT OF DISTRICT CONTRACT PATE......................12
Section 4.2 CONTRACT RATE........................................................................................................................12
Section 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE...........................................13
Section 4.4 BILLING OF THE CONTRACT PATE........................................................................................13
Section 4.5 [RESERVED].................................................................................................................................13
Section 4.6 AUDITED FINANCIAL STATEMENTS......................................................................................13
Section 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION.............................................13
ARTICLE V
BREACH,ENFORCEMENT AND TERMINATION
Section5.1 BREACH........................................................................................................................................14
Section 5.2 DISTRICT CONVENIENCE TERMINATION.............................................................................14
Section 5.3 TERMINATION.............................................................................................................................14
Section 5.4 NO WAIVERS................................................................................................................................15
Section 5.5 FORUM FOR DISPUTE RESOLUTION......................................................................................15
Executive Copy
ARTICLE VI
TERM
Section 6.1 EFFECTIVE DATE AND TERM..................................................................................................15
Section 6.2 [RESERVED].................................................................................................................................16
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM.......................................16
Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY........................................................16
Section 7.3 INDEMNIFICATION.....................................................................................................................17
Section 7.4 RELATIONSHIP OF THE PARTIES............................................................................................17
Section 7.5 LIMITED RECOURSE..................................................................................................................17
Section 7.6 PRE-EXISTING RIGHTS AND LIABILITIES.............................................................................17
Section 7.7 NO VESTED RIGHTS...................................................................................................................18
Section 7.8 LIABILITY FOR COLLECTION,TRANSPORTATION AND PROCESSING..........................18
Section 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES......................... ...........................18
Section 7.10 AMENDMENTS.... .._.._.._.._.._............................................................... ...............................18
Section 7.11 NOTICE OF LITIGATION............................................................................................................18
Section 7.12 FURTHER ASSURANCES.... .._....... .._.._.._......................................................................_.._...18
Section 7.13 ASSIGNMENT OF AGREEMENT... ...........................................................................18
Section 7.14 INTEREST ON OVERDUE OBLIGATIONS...............................................................................18
Section 7.15 BINDING EFFECT........................................................................................................................18
Section7.16 NOTICES........................................................................................................................................18
Executive Copy
WASTE DISPOSAL AGREEMENT
THIS WASTE DISPOSAL AGREEMENT is made and dated as of the date indicated on the cover page
hereof between the County of Orange, a political subdivision of the State of California (the "County"), and the
Orange County Sanitation District,a county sanitation district duly existing under the laws of the State of California
(the"District").
RECITALS
The County owns,manages and operates a sanitary landfill system for the disposal of municipal solid waste
generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal
System includes three active landfills and four regional household hazardous waste collection centers.
The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or
otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989
(Division 30 of the California Public Resources Code) (the"Act").
The District operates a wastewater treatment processing facility, which generates Acceptable Waste
(defined below)consisting of sewage sludge on a daily basis.
In July 2009, the County entered into waste disposal agreements (the "Original Waste Disposal
Agreements")with all of the cities in the County,as well as certain other government entities and private solid waste
facility operators (the "Original Waste Disposal Agreement Entities"), pursuant to which the County agreed to
provide disposal capacity for waste generated in or under the control of the Original Waste Disposal Agreement
Entities, and the Original Waste Disposal Agreement Entities agreed to deliver or cause the delivery of waste
generated in or under the control of the Original Waste Disposal Agreement Entities to the Disposal System,as more
specifically set forth in,and subject to the tens and conditions of,the Original Waste Disposal Agreements.
The Original Waste Disposal Agreements provide that the County may enter into additional waste disposal
agreements with any Sanitary District, Transfer Station and Independent Hauler, or otherwise accept Acceptable
Waste from such parties,but only within the limitations contained in the Original Waste Disposal Agreements.
The District has determined that the execution of this Agreement by the District is in the best interest of the
District and will serve the public health, safety and welfare by providing greater disposal rate stability, more
predictable and reliable long-ten disposal service,and sound environmental management.
The County has determined that the execution by the County of this Agreement will serve the public health,
safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the
resulting service payment revenue to the Disposal System,thereby enabling the County to plan,manage,operate and
finance improvements to the Disposal System on a more prudent and sound long term,businesslike basis consistent
with its obligations to the State and the holders of obligations secured by its Disposal System.
Official action approving this Agreement and determining it to be in the public interest and authorizing its
execution and delivery was duly taken by the County on the County authorization date indicated on the cover page
hereof.
Official action approving this Agreement and determining it to be in the best interest of the District,
pursuant to Health and Safety Code Section 4742.1, and in the public interest and authorizing its execution and
delivery was duly taken by the District on the District authorization date indicated on the cover page hereof.
It is,therefore,agreed as follows:
Executim Copy
ARTICLE
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS. As used in this Agreement,the following terms shall have the meanings
set forth below.
"Acceptable Waste" means all garbage, refuse, rubbish and other materials and substances discarded or
rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and
which are normally disposed of by or collected from residential (single family and multi-family), commercial,
industrial, governmental and institutional establishments and which are acceptable at Class III landfills under
Applicable Law.
"Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the California
Public Resources Code),as amended,supplemented,superseded and replaced from time to time.
"Agreement"means this Waste Disposal Agreement between the County and the District as the same may
be amended or modified from time to time in accordance herewith.
"Applicable Law" means the Act, the Orange County Code, CERCLA, RCRA, CEQA, any Legal
Entitlement and any federal or state nile,regulation,requirement,guideline,permit,action,determination or order of
any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting,
acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal
System, the transfer,handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other
transaction or matter contemplated hereby (including any of the foregoing which concern health, safety, fire,
environmental protection,mitigation monitoring plans and building codes).
"Board"means the California Integrated Waste Management Board.
"CEQA"means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000
et seq.as amended or superseded,and the regulations promulgated thereunder.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C.A.Section 9601 ern seq.,as amended or superseded,and the regulations promulgated thereunder.
"Change in Law"means any of the following events or conditions which has a material and adverse effect
on the performance by the parties of their respective obligations under this Agreement (except for payment
obligations), or on the siting, design, permitting, acquisition, construction, equipping, financing, ownership,
possession,operation or maintenance of the Disposal System or other matters to which Applicable Law applies:
(1) the enactment,adoption,promulgation,issuance, material modification or written change
in administrative or judicial interpretation on or after the Original Waste Disposal Agreement Commencement Date
of any Applicable Law(other than Applicable Law enacted by the County);
(2) the order or judgment of any Governmental Body(other than the County),on or after the
Original Waste Disposal Agreement Commencement Date,to the extent such order or judgment is not the result of
willful or negligent action, error or omission or lack of reasonable diligence of the County or of the District,
whichever is asserting the occurrence of a Change in Law; provided, however,that the contesting in good faith or
the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful
or negligent action,error or omission or lack of reasonable diligence;or
(3) the denial of an application for, delay in the review, issuance or renewal of, or
suspension, termination, interruption, imposition of a new or more stringent condition in connection with the
issuance, renewal or failure of issuance or renewal on or after the Original Waste Disposal Agreement
Commencement Date of any Legal Entitlement to the extent that such denial, delay, suspension, termination,
interruption,imposition or failure materially and adversely interferes with the performance of this Agreement,if and
2
Executive Copy
to the extent that such denial, delay, suspension, termination, interruption, imposition or failure is not the result of
willful or negligent action, error or omission or a lack of reasonable diligence of the County or of the District,
whichever is asserting the occurrence of a Change in law;provided,however that the contesting in good faith or the
failure in good faith to contest any such denial, delay, suspension, termination, interruption, imposition or failure
shall not be construed as such a willful or negligent action,error or omission or lack of reasonable diligence.
A"Change in Law"shall include but not be limited to any new or revised requirements relating to
the funding or provision of disposal services, including but not limited to any regulations for disposal operations or
activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities
comprising the Disposal System, or facilities which the County previously utilized to provide waste disposal,
transfer,recycling,processing or other waste related activities.
"Contract Date"means the first date on which this Agreement has been executed by both parties hereto.
"Contract Rate" means the Contract Rate payable by the Original Waste Disposal Agreement Entities in
accordance with the Original Waste Disposal Agreements,as such Contract Rate may be adjusted from time to time
pursuant to the Original Waste Disposal Agreements.
"Contract Year" means the fiscal year commencing on July 1 in any year and ending on June 30 of the
following year.
"County"means the County of Orange, a political subdivision of the State of California and party to this
Agreement.
"County Plan"means the integrated waste management plan of the County approved by the Board pursuant
to the Act as in effect from time to time.
"County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund
established and managed by the County pursuant to Section 25261 of the Government Code separate from its other
funds and accounts for receipts and disbursements in connection with the Disposal System.
"County-wide Recycling Services"has the meaning set forth in subsection 3.7(A)hereof.
"Department" means OC Waste & Recycling, and any agency, department or other Governmental Body
which succeeds to the duties and powers thereof.
"Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the
Service Covenant and otherwise hereunder.
"Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal
operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional
Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at
closed refuse stations formerly operated by the County,as appropriate under Applicable Law.
"District"means the Orange County Sanitation District.
"District Acceptable Waste" means all Acceptable Waste constituting sewage sludge generated at the
Facility. "District Acceptable Waste" does not include: (i) any sewage sludge which is diverted from landfill
disposal through source reduction, recycling, or composting activities; (ii) any sewage sludge temporarily required
for research or demonstration purposes; (iii)any other type of Acceptable Waste generated at the Facility,including
Acceptable Waste generated from the District's administrative operations or other activities; or (iv) Acceptable
Waste generated from screening and grit removal,digester cleaning,or similar means.
"District Contract Rate" means the District Contract Rate payable by the District pursuant to Section 4.2
hereof.
3
2xecutiw Copy
"Facility"means the District's wastewater treatment facility located at
"Governmental Body"means any federal, State, county, city or regional legislative, executive,judicial or
other governmental board,agency,authority,commission,administration,court or other body,or any officer thereof
acting within the scope of his or her authority.
"Hazardous Substance" has the meaning given such term in CERCLA, the Carpenter-Presley-Tanner
Hazardous Substance Account Act(California Health and Safety Code Section 25300 et seq.),and Titles 22 and 26
of the California Code of Regulations and other regulations promulgated thereunder.
"Hazardous Waste" means (a)any waste which by reason of its quality, concentration, composition or
physical,chemical or infectious characteristics may do either of the following: cause,or significantly contribute to,
an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a
substantial threat or potential hazard to human health or the environment,or any waste which is defined or regulated
as a hazardous waste,toxic substance,hazardous chemical substance or mixture,or asbestos under Applicable Law,
as amended from time to time including, but not limited m: (I)the Resource Conservation and Recovery Act and
the regulations contained in 40 CPR Parts 260-281; (2)the Toxic Substances Control Act(15 U.S.C. Sections 2601
et seq.) and the regulations contained in 40 CFR Parts 761-766; (3)the California Health and Safety Code,
Section 25117 (West 1992 & Supp. 1996); (4)the California Public Resources Code, Section 40141 (West 1996);
and(5)future additional or substitute Applicable Law pertaining to the identification,treatment,storage or disposal
of toxic substances or hazardous wastes;or(b)radioactive materials which are source,special nuclear or by-product
material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations
contained in 10 CFR Part 40.
"Imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical
boundaries of the County and delivered to the Disposal System.
"Independent Haulers" means those waste collection/hauler companies primarily engaged as a principal
business in the collection and transportation of municipal solid waste generated in the County of Orange which are
not obligated to deliver Acceptable Waste generated in the County to the Disposal System pursuant to a franchise,
contract,permit or other authorization with a city in the County.
`Initial Term"has the meaning specified in Section 6.1(A)hereof.
"Legal Entitlement" means all permits, licenses, approvals, authorizations, consents and entitlements of
whatever kind and however described which are required under Applicable Law to be obtained or maintained by any
person with respect to the Disposal System or the performance of any obligation under this Agreement or the
matters covered hereby.
"Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other
legal or equitable proceeding having a bearing upon this Agreement.
"Loss-and-Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment,
deposit,cost,expense,claim,demand,charge,tax,or expense,including all fees and costs.
"Original Waste Disposal Agreement Commencement Date" means July 23, 2009, which is the date on
which the Commencement Date occurred in accordance with the terms of the Original Waste Disposal Agreement.
"Original Waste Disposal Agreement Entities" means the Cities and franchise haulers which entered into
the Original Waste Disposal Agreements.
"Original Waste Disposal Agreements" means the Waste Disposal Agreements entered into between the
County and each of the Original Waste Disposal Agreement Entities on or before the Commencement Date. A copy
of an Original Waste Disposal Agreement is attached hereto as Appendix A.
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"Overdue Rate"means the maximum rate of interest permitted by the laws of the State, if applicable,or the
prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2%,
whichever is lower.
"Posted Disposal Rate"means the per ton tipping fee charged by the County for the disposal of solid waste
at the Disposal System by parties which are not entitled to disposal service at the Contract Rate pursuant to this
Agreement.
"Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under
Applicable Law from being received by or disposed at the Disposal System.
"Qualified Household Hazardous Waste"means waste materials determined by the Board,the Department
of Health Services,the State Water Resources Control Board,or the Air Resources Board to be:
(1) Of a nature that they must be listed as hazardous in State statutes and regulations;
(2) Toxic/ignitable/corrosive/reactive;and
(3) Carcinogenic/mumgenic/teratogenic;
which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not
include Unacceptable Waste.
"Renewal Term"has the meaning specified in Subsection 6.1(B)hereof.
"Resource Conservation and Recovery Act" or"RCRA" means the Resource Conservation and Recovery
Act,42 U.S.C.A.Section 6901 et seq.,as amended and superseded.
"Sanitary Districts"means the sanitary districts in the County formed pursuant to the Sanitary District Act
of 1923, codified at Cal. Ann. Health & Safety Code Section 6400 et seq., as amended, supplemented, superseded
and replaced from time to time.
"Service Coordinator" means the service coordinator for either party designated pursuant to
subsection 3.5(C)hereof.
"Service Covenant" means the covenants and agreements of the County set forth in Sections 3.2 and 3.3
hereof.
"State"means the State of California.
"Term"shall mean the Term of this Agreement.
"Ton"means a"short ton"of 2,000 pounds.
"Transfer Station" means any materials recovery facility, composting facility, intermediate processing
facility, recycling center, transfer station or other waste handling or management facility to which solid waste
collected for the City is delivered for processing before disposal in the Disposal System.
"Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste;
Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnance, highly flammable
substances, and noxious materials and lead-acid batteries (except if delivered in minimal quantities); drams and
closed containers; liquid waste, oil, human wastes (other than human waste present in amounts typically present in
sewage sludge generated from the Facility); machinery and equipment from commercial or industrial sources, such
as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers, marine
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vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under
Applicable Law.
"Uncontrollable Circumstance" means any act, event or condition affecting the Disposal System, the
County,the District,or any of their contractors or suppliers to the extent that it materially and adversely affects the
ability of either party to perform any obligation under the Agreement(except for payment obligations), if such act,
event or condition is beyond the reasonable control of and is not also the result of the willful or negligent act,error
or omission or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not
performing an obligation or complying with any condition required of such party under the Agreement; provided,
however, that the contesting in good Faith or the failure in good faith to contest such action or inaction shall not be
construed as willful or negligent action or a lack of reasonable diligence of either party. Examples of Uncontrollable
Circumstances are:
(1) an act of God, landslide,lightning,earthquake, fire, explosion,flood,sabotage or similar
occurrence,acts of a public enemy,extortion,war,blockade or insurrection,riot or civil disturbance;and
(2) a Change in Law.
"Unincorporated Area" means those portions of the County which are not contained within the
jurisdictional boundaries of incorporated cities.
"Unincorporated Area Acceptable Waste" means Acceptable Waste originating from or generated within
the Unincorporated Area.
"Waste Disposal Covenant" means the covenants and agreements of the District set forth in Section 3.1
hereof.
SECTION 1.2 INTERPRETATION. In this Agreement,unless the context otherwise requires:
(A) References Hereto. The terms"hereby","hereof',"herein","hereunder"and any similar
terms refer to this Agreement, and the term "hereafter" means after, and the term "heretofore" means before, the
Contract Date.
(B) Gender and Plmalitv. Words of the masculine gender mean and include correlative
words of the feminine and neuter genders and words importing the singular number mean and include the plural
number and vice versa.
(C) Persons. Words importing persons include firms, companies, associations, general
partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public
bodies,as well as individuals.
(D) Hea�din . The table of contents and any headings preceding the text of the Articles,
Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a
part of this Agreement,nor shall they affect its meaning,construction or effect.
(E) No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on haulers
or any other person other than the parties hereto and their respective permitted successors and assigns hereunder any
rights or remedies under or by reason of this Agreement.
(F) Counteparts. This Agreement may be executed in any number of original counterparts.
All such counterparts shall constitute but one and the same Agreement.
(G) Applicable Law. This Agreement shall be governed by and construed in accordance with
the Applicable Laws of the Stara of California.
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(H) SeverabiliN. If any clause, provision, subsection, Section or Article of this Agreement
shall be ruled invalid by any court of jurisdiction,then the parties shall: (1)promptly meet and negotiate a substitute
for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible,
effect the intent of the parties therein; (2)if necessary or desirable to accomplish item (1)above,apply to the court
having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and
(3)negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be
necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the
invalid provision. The invalidity of such clause,provision, subsection, Section or Article shall not affect any of the
remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not
exist,unless such invalidity frustrates the underlying primary purpose of the Agreement.
(I) Inteeration; Preservation of Certain Agreements. This Agreement contains the entve
agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall
completely and fully supersede all prior understandings and agreements between the Parties with respect to such
transactions;provided,however,that this Agreement shall not supersede the following agreements:
1) MOU, dated March 10, 1992, between the City of Brea and the County of
Orange regarding the Olinda Alpha Landfill as amended on April 6, 1993 and November 29, 1994;
2) MOU, dated May 11, 1995,between the City of Brea and the County of Orange
regarding importation of out-of-County waste to the Olinda Alpha Landfill;
3) Settlement Agreement,dated August 1, 1984,between the City of Irvine and the
County of Orange regarding the Bee Canyon Landfill(currently called Prank R.Bowerman Landfill);
4) MOU, dated May 16, 1995, between the City of Irvine and the County of
Orange regarding importation of out-of-County waste to the Frank R.Bowerman Landfill;
5) MOU, dated September 12, 1995, and amended November 21, 1995, between
the City of San Juan Capistrano and the County of Orange regarding importation of out-of-County waste to the
Prima Deshecha Landfill;
6) MOU, dated July 1, 1997, between the City of San Clemente[, the Orange
County Flood Control District]and the County of Orange regarding the Prima Deshecha Landfill;and
7) Cooperative Agreement, dated August 15, 2006, between the County and the
City of Irvine.
(J) Recitals. The recitals to this Agreement me not intended to bind the parties hereto. In
the event of a conflict between the recitals and the operative provisions of this Agreement,the operative provisions
shall prevail. The recitals shall not be used to interpret the provisions of the Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE DISTRICT. The District
represents and warrants that:
(A) Existence. The District is a county sanitation district validly existing under the
Constitution and laws of the State.
(B) Due Authorization. The District has duly authorized the execution and delivery of this
Agreement,and this Agreement has been duly executed and delivered by the District.
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SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The County
represents and warrants that:
(A) Existence. The County is a political subdivision of the State of California validly
existing under the Constitution and laws of the State.
(B) Due Authorization. The County has duly authorized the execution and delivery of this
Agreement,and this Agreement has been duly executed and delivered by the County.
ARTICLE III
DELIVERY AND ACCEPTANCE OF WASTE
AND PROVISION OF DISPOSAL SERVICE
SECTION 3.1 DELIVERY OF WASTE.
(A) Waste Disposal Covenant During the Term of this Agreement,the District shall deliver
or cause the delivery of all District Acceptable Waste, if any, to the Disposal System, subject to availability of
acceptance in the Disposal System,in accordance herewith.
(B) Waste Flow Enforcement. The District acknowledges and agrees that in the event the
District breaches the Waste Disposal Covenant by disposing of District Acceptable Waste at a landfill outside the
Disposal System (other than District Acceptable Waste which the County does not accept at the Disposal System
pursuant to Section 3.3.), the District shall pay the County an amount equal to the amount that the District would
have been required to pay to the County had the Waste Disposal Covenant not been breached, which shall be
calculated by multiplying (x) the number of tons of District Acceptable Waste disposed at landfills outside of the
Disposal System (other than District Acceptable Waste which the County does not accept at the Disposal System
pursuant to Section 3.3.),times(y)the District Contract Rate in effect at the time of such breach(or any higher rate
with respect to which the County has provided notice pursuant to Section 4.2). In the event that the County
terminates the Waste Disposal Agreement as a result of such breach,the damages due as a result of such termination
shall be equal to ma) the average monthly deliveries by the District for the twelve months prior to the
commencement of the breach multiplied by(bb)the Contract Rate in effect at the time of such breach(or any higher
rate with respect to which the County has provided notice pursuant to Section 4.2),multiplied by(cc)the number of
months that would have remained in the Term of the Agreement had the termination not occurred. The parties
recognize that if the District fails to meet its obligations hereunder,the County will suffer damages and that it is and
will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages.
Therefore,the parties agree that the damages specified above represent a reasonable estimate of the amount of such
damages, considering all of the circumstances existing on the date hereto, including the relationship of the sums to
the range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages
would be costly or inconvenient. In signing this Agreement, each party spccifically confirms the accuracy of the
statements made above and the fact that each parry had ample opportmity to consult with legal counsel and obtain
an explanation of this liquidated damage provision at the time that this Agreement was made.
(C) Waste Information System. The District shall cooperate with the Department in
collecting information and otherwise monitoring haulers of District Acceptable Waste in order to assure compliance
with this Agreement. Such information may include,to the extent practicable,data pertaining to District Acceptable
Waste collected,transported,stored,processed and marketed or disposed of, such collection terms, collection areas,
transportation routes and compliance with Applicable Law; and all other information which may reasonably be
required by the Department in connection with this Agreement. The District agrees to include in any revised
contract,license or permit or other arrangement with haulers of District Acceptable Waste to provide to the County
information relating to the District Acceptable Waste transported by such hauler, as well as other sewage sludge
generated from the Facility transported by such hauler which was diverted from landfill disposal and therefore did
not constitute District Acceptable Waste hereunder, including the location of any facility or location to which such
sewage sludge was delivered,and other related information.
(D) District Actions Affecting County. The District agrees to carry out and fulfill its
responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County
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with its covenants and agreements with the State. In particular, the District agrees not to conduct, authorize or
permit any disposal services for District Acceptable Waste to be provided in competition with the Disposal Services
provided by the County hereunder, and not to take or omit m take any action with respect to District Acceptable
Waste or its collection, transportation, transfer, storage, treatment or disposal that may materially and adversely
affect the County's ability to achieve such timely compliance.
(E) No Right of Waste Substitution. Nothing in this Agreement shall authorize or entitle the
District to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or generated
outside the jurisdiction of the District,not obligate the County to receive or dispose of any such Acceptable Waste.
The District shall not assign in whole or in part its right to deliver or cause to be delivered District Acceptable Waste
to the County hereunder, and shall not permit any Acceptable Waste originating from or generated outside the
jurisdiction of the District to be substituted for District Acceptable Waste for any purpose hereunder. The County
acknowledges that the provision of wastewater treatment services at the Facility by the District with respect to
wastewater generated outside of the County will not violate this section.
SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY.
(A) Service Covenant. Commencing on 2012,the County shall provide or cause
the provision of the service of(1)receiving and disposing of all District Acceptable Waste at the Disposal System
(or such other facilities, including transfer stations, as the County may determine to use), (2)disposing in
accordance with subsection 3.2(C)hereof of District Acceptable Waste which, at any time and for any reason,is in
excess of the disposal capacity of the Disposal System, and (3) in accordance with subsection 3.3(C) hereof,
disposing of Unacceptable Waste inadvertently accepted at the Disposal System. The County, to the maximum
extent permitted under Applicable Law, shall use its best efforts to keep the Olinda Alpha, Prima Deshecha and
Frank R. Bowerman Landfills open for the receipt of waste for disposal or transfer of District Acceptable Waste
pursuant to this Agreement. The County shall do and perform all acts and things which may be necessary or
desirable in connection with its covenants in this subsection,including without limitation all planning,development,
administration, implementation, construction, operation, maintenance, management, financing and contract work
related thereto or undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize
the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and under
this Agreement,Applicable Law and prudent solid waste management practice and environmental considerations.
(B) Particular Facilities. The Department and the District shall consult and cooperate in
determining whether and to what extent from time to time other landfills other than that primarily used by the
District shall be utilized to receive District Acceptable Waste. The District acknowledges that,due to the fact that
District Acceptable Waste constitutes sewage sludge, (i) the acceptance at the Disposal System of District
Acceptable Waste may be limited or prohibited by the Legal Entitlements during periods when Acceptable Waste
otherwise generated in the County is not subject to such prohibition or limitation; and (ii) the Department may be
required to direct District Acceptable Waste to particular facilities within the Disposal System during periods when
Acceptable Waste is not generally subject to such requirements.As of the Contract Date,the only landfill within the
Disposal System at which District Acceptable Waste may currently be accepted is the Prima Deshecha Landfill.
The Department shall immediately advise the District by telephone of any situation, event or circumstance which
results in the partial or complete inability of the County to receive District Acceptable Waste at Prima Deshecha
Landfill,its effect on the County's ability to perform its obligations hereunder,and the County's best estimate of the
probable duration The Department shall confirm such advice in writing within 24 hours of the occurrence of any
such inability. The County shall use its best efforts to resume normal operation of the landfill primarily used by the
District as soon as possible. In the event of a temporary material increase in average daily deliveries of District
Acceptable Waste from the District which the County reasonably believes could result in the permitted daily
disposal capacity limit to be exceeded with respect to a particular landfill within the Disposal System, to the extent
permitted by Legal Entitlements, the County shall have the right to redirect the increased District Acceptable Waste
to another landfill within the Disposal System for the duration of the increase in average daily deliveries.
(C) Particular Restrictions Relating to the Receipt of District Acceptable Waste. The District
acknowledges that the Legal Entitlements relating to the Prima Deshecha Landfill contain particular limitations
relating to sewage sludge not generally applicable to Acceptable Waste, including a limit on the maximum amount
of sewage sludge that may be accepted equal to the lesser of(x) 350 tons per day or (z) 16.6% of the total
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Acceptable Waste accepted per day. The District also acknowledges that Changes in Law may have additional
specific requirements or prohibitions relating to sewage sludge (and therefore District Acceptable Waste). The
County shall be excused from its obligation to accept District Acceptable Waste pursuant to the Service Covenant in
the event that the County is prohibited from doing so pursuant to any Legal Entitlements relating to the Disposal
System.In the event that a Change in Law precludes or further limits the County from accepting District Acceptable
Waste at the Disposal System,the County shall use all efforts to effectuate executive, legislative or judicial change
in or relief from the applicability of such law so as to enable the County lawfully to resume compliance with such
covenants as soon as possible following the Change in Law.
SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE.
(A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse
delivery of.
(1) Hazardous Waste;
(2) District Acceptable Waste delivered at hams other than those provided in
Section 3.5 hereof,
(3) Waste that does not constitute District Acceptable Waste;
(4) Waste that is delivered by any party which has not executed a Waste Disposal
Agreement;
(5) District Acceptable Waste the acceptance of which would cause the County to
violate any Legal Entitlements;
(6) District Acceptable Waste the acceptance of which would materially and
adversely affect the ability of the County to receive and dispose of Acceptable Waste from(i)the parties identified
in the MOU,dated July 1, 1997,between the City of San Clemente,the Orange County Flood Control District and
the County of Orange, including successor entities, regarding the Prima Deshecha Landfill, or (it) the Original
Waste Disposal Agreement Entities in accordance with the Original Waste Disposal Agreements.
(B) Identification of Unacceptable Waste. The Department shall have the right (but not the
duty or the obligation)to inspect any vehicles delivering District Acceptable Waste to the Disposal System,and may
require that the operator of the vehicle remove any Unacceptable Waste from such vehicle before it is unloaded. If
the Department determines that it is impractical to separate District Acceptable Waste from Unacceptable Waste in
any vehicle, or if the operator of the vehicle delivering such waste is unwilling to make such separation, or if any
vehicle is carrying waste which may spill or leak,then the Department may reject the entire vehicle,and the District
shall forthwith remove or cause the removal of the entire delivery from the Disposal System. The Department may
take all reasonable measures to prevent waste from being blown or scattered before and during unloading. The
District shall cause the operators of any vehicles delivering District Acceptable Waste to observe and comply with
Applicable Law, the operating rules and regulations of the Department, and the provisions of this Agreement
prohibiting the delivery of Unacceptable Waste to the Disposal System.
(C) Hazardous Waste and Hazardous Substances. The parties acknowledge that the Disposal
System has not been designed or permitted, and is not intended to be used in any manner or to any extent, for the
handling,transportation,storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor
the District shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the
Disposal System.
(D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or
Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the vehicle will
not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste
in the tipping area of a landfill within the Disposal System, Department personnel will use reasonable efforts to
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assure that such material has been characterized, properly secured, and its disposition resolved. The return or
reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring
handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is
detected at any landfill within the Disposal System, the Department shall take immediate action in accordance with
Applicable Law.
SECTION 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE. Commencing on the Contract
Date, the County in accordance with Applicable Law shall provide or cause to be provided the service of disposing
of non-recycled Acceptable Waste originating or generated within the Unincorporated Area and, with respect to
such waste, shall comply with the Waste Disposal Covenant as if the County constituted a City subject to the Waste
Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of non-recycled
Acceptable Waste generated in the Unincorporated Area shall be the same as the Contract Fee charged for the
disposal of each class of District Acceptable Waste. The County shall use its best efforts to preserve, protect and
defand its right to exercise and comply with the Waste Disposal Covenant(with respect to non-recycled Acceptable
Waste generated in the Unincorporated Area)against any challenge thereto,legal or otherwise,by a franchise hauler
or any other person,based upon breach of contract,violation of law or any other legal theory. The County shall bear
the cost and expense of any such Legal Proceeding or other challenge (with respect to non-recycled Acceptable
Waste generated in the Unincorporated Area).
SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS.
(A) Operating Hours. The County shall keep the Disposal System open for the receiving of
District Acceptable Waste during such regular operating hours as may be established by the Department in the
operating ndes and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain
substantially similar hours, as were in effect on the Contract Date, for the receipt of waste through the term of this
Agreement(subject to Applicable Law).
(B) Scales and Weiehine. The Department shall operate and maintain permanent scales at
the Disposal System. The Department shall weigh all vehicles delivering waste by or on behalf of the District
(whether or not the County accepts such waste)and prepare a daily weight record with regard to such delivery.
(C) Service Coordinator. The County and the District each shall designate in writing on or
prior to the Contract Date a person to transmit instructions, receive information, and otherwise coordinate service
matters arising pursuant to this Agreement(each a"Service Coordinator"). Either party may designate a successor
or substitute Service Coordinator at any time by notice to the other party.
(D) Review of Records. Each party may review the other parry's books and records with
respect to matters relevant to the performance by either party under this Agreement or otherwise related to the
operation of the Disposal System to the extent allowed under the California Public Records Act(interpreted as if the
parties to this Agreement were natural persons for purposes of the Public Records Act).
SECTION 3.6 OTHER USERS OF THE DISPOSAL SYSTEM.
(A) [RESERVED]
(B) Other County Entities. The County shall have the right to enter into waste disposal
agreements with other Orange County entities in accordance with the Original Waste Disposal Agreements.
(C) Receipt of Imported Acceptable Waste on a Contract Basis. The County shall have the
right to enter into a contract or other agreement with any municipal or private non-County entity for the delivery of
Imported Acceptable Waste in accordance with the Original Waste Disposal Agreements.
(D) Self Haulers. The Department and the County acknowledge that Self-Haulers shall be
entitled to deliver Self-Hauled Waste to the Disposal System, on a non-contract basis, at the Posted Disposal Rate.
Such Self-Haulers shall not be entitled to dispose of Acceptable Waste for the Contract Rate.
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(E) [RESERVED]
SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES.
(A) County-Wide Recycling Services. This Agreement does not require the County to
provide for any source reduction,materials recovery,recycling,composting,or other waste diversion services by the
County nor any payment therefor by the District;provided,however,any County-Wide Recycling Services may be
funded through the Comfy OC Waste&Recycling Enterprise Fund. Any such recycling services may be expanded,
contracted or modified by the Comfy at any time in its sole discretion.
(B) Separate District-Comte Diversion Service Agreements. Nothing in this Agreement is
intended to limit the right of the Comfy to enter into a separate agreement with the District or any other person to
provide source reduction, materials recovery, recycling, composting or other waste diversion services. Any such
program conducted by the County, whether in participation with the District, any of the Original Waste Disposal
Agreement Entities,other cities, Sanitary Districts,Transfer Stations,Independent Haulers,Unincorporated Area or
non-County entity, shall be operated, managed and accounted for as a program separate and distinct from the
Disposal Services program contemplated by the Disposal Agreements and shall not be funded through the general
revenues of the Disposal System.
ARTICLE N
DISTRICT CONTRACT RATE
SECTION 4.1 CHARGING AND SECURING PAYMENT OF DISTRICT CONTRACT RATE. The
District acknowledges that the Comfy shall have the right to charge and collect a District Contract Rate for the
acceptance and disposal of District Acceptable Waste delivered to the System by the District. The District Contract
Rate shall be calculated and established, and may be modified, as provided in Section 4.2 hereof In addition, the
District acknowledges that the Comfy shall have the right to establish as part of the operating rules and regulations
reasonable measures to secure the payment of the District Contract Rate.
SECTION 4.2 CONTRACT RATE.
(A) Establishment of Contract Rate. The District Contract Rate payable by the District shall
at all times be equal to I10% of the then-current Contract Rate (e.g. Contract Rate plus ten percent) payable by
Original Waste Disposal Agreement Entities pursuant to the Original Waste Disposal Agreements,as such Contract
Rate may be adjusted or escalated from time to time pursuant to the Original Waste Disposal Agreements. The
County shall provide notice to the District of any adjustment to the Contract Rate under the Original Waste Disposal
Agreements at the same time it provides notice thereof to the Original Waste Disposal Agreement Entities pursuant
to the Original Waste Disposal Agreements.
(B) [RESERVED]
(C) [RESERVED]
(D) [RESERVED]
(E) Special Charges. Notwithstanding Section 4.2(A), the County shall have the right to
impose special charges for the receipt of District Acceptable Waste in the event that Legal Entitlements or operating
considerations require special handling of sewage sludge, or if any surcharge or additional fee is payable by the
County with respect to District Acceptable Waste order any host community or similar agreement between the
County and my city in the Comfy. Such special charges shall be calculated to reflect the reasonable incremental
costs to the County of such special handling of sewage sludge.In addition,in the event that the Board of Supervisors
of the County makes a determination to implement a facility (including but not limited to a transfer station, landfill,
conversion technology facility, or a materials recovery or processing facility), which facility would be intended to
provide for disposal alternatives after the closure of one or more of the landfills currently operating within the
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Disposal System,the County may impose an additional charge of$0.50 per ton of Acceptable Waste in order to pay
the costs of the study,development,planning,construction and/or operation of such facility.
(F) rRESERVEDI
(G) IRESERVEDI
(H) [RESERVED]
(I) [RESERVED]
(J) [RESERVED]
SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE.
(A) Payment by the District. The District shall be responsible for the payment of the District
Contract Rate,and shall take all such budgetary, appropriation and other action as may be necessary to provide for
the timely payment of the District Contract Rate. Such action may include, depending upon the means authorized
by the District to provide for such payment, the collection of user fees, generator charges or other similar
impositions. From the Contract Date to the date of expiration or termination of this Agreement,the obligation to the
District to pay the Contract Rate shall be absolute and unconditional and shall not be subject to delay or diminution
by reason of set-off,abatement,counterclaim,existence of a dispute or otherwise.
(13) rRESERVEDI
(C) Disputes. If the District disputes any amount billed by the County in any Billing
Statement, the District shall nonetheless pay the billed amount and shall provide the County with written objection
within 30 days of the receipt of such Billing Statement indicating the amount that is being disputed and providing all
reasons then known to the District for any objection to or disagreement with such amount. If the District and the
County are not able to resolve such dispute within 30 days after the District's objection, either party may pursue
appropriate legal remedies.
SECTION 4.4 BILLING OF THE CONTRACT RATE. The County shall continue to bill District
Contract Rates after the Commencement Date,in the same manner as it has customarily billed tipping fees. Subject
to the other provisions of this Agreement,the County shall have the right to modify or amend such manner of billing
on reasonable notice to affected parties.
SECTION 4.5 [RESERVED]
SECTION 4.6 AUDITED FINANCIAL STATEMENTS. The County shall annually, on or before
January 1 each year, prepare or cause to be prepared and have on file for inspection an annual report for the
preceding Contract Year,accompanied by a certificate of an independent public accountant or of the County Auditor
and Controller as to the examination of the financial statements therein (describing such statements as fairly
presenting the information therein in conformity with generally accepted accounting principles) relating to the
Disposal System,the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fund,
and including statements in reasonable detail of the financial condition of the County OC Waste Disposal Enterprise
Fund m of the end of the Contract Year and revenue and expenses for the Contract Year.
SECTION 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION. The County shall
annually, on or before May 1 of each year, prepare or cause to be prepared, an updated Ten-Year Financial
Projection for the Disposal System. Said Financial Projection shall include at least two full years of prior actual data
and ten years of future projections including the following elements:
1. County Acceptable Waste,in tons;
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2. Imported Acceptable Waste,in tons;
3. Revenues and expenditures;
4. Cash fund balances, including all monies in the County Solid Waste Enterprise
Fund;
5. Projected liabilities for closure and post closure as well as reasonable reserves
for other environmental costs.
The purpose of the Ten-Year Financial Projection is to keep the District fully informed about the future financial
condition of the Disposal System. The County shall cause a copy of the Ten-Year Financial Projection to be
delivered to the District no later than May 1 of each year.
ARTICLE V
BREACH,ENFORCEMENT AND TERMINATION
SECTION 5.1 BREACH. The parties agree that in the event either parry breaches any obligation under
this Agreement or any representation made by either parry hereunder is untrue in any material respect, the other
party shall have the right to take any action at law or in equity(including actions for injunctive relief,mandamus and
specific performance)it may have to enforce the payment of any amounts due or the performance of any obligations
to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided in
Section 5.2 and Section 5.3 hereof or as otherwise provided in this Agreement.
SECTION 5.2 DISTRICT CONVENIENCE TERMINATION. The District shall have the right to
terminate this Agreement in its sole discretion, for its convenience and without cause at any time during the Term
hereof upon 90 days' written notice to the County. If the District exercises its rights to terminate the Agreement
pursuant to this Section, the District shall pay the County a termination fee equal to the District Contract Rate in
effect at the time of such termination (or any higher rate with respect to which the County has provided notice
pursuant to Section 4.2) multiplied by the number of tons of District Acceptable Waste delivered to the Disposal
System during the preceding twelve months (or, if the District had been in breach of the Waste Disposal Covenant
during such prior months, such amount as would have been delivered if the District had complied with the Waste
Disposal Covenant),multiplied by the number of years remaining in the Term of the Agreement.
SECTION 5.3 TERMINATION.
(A) By District. Except as expressly provided herein, the District shall have no right to
terminate this Agreement for cause except in the event of the repeated failure or refusal by the County substantially
to perform any material obligation under this Agreement unless such failure or refusal is excused by an
Uncontrollable Circumstance; except that no such failure or refusal shall give the District the right to terminate this
Agreement for cause under this subsection unless:
(1) The District has given prior written notice to the County stating that a specified
failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on
the part of the County and which will,in its opinion,give the District the right to terminate this Agreement for cause
under this subsection unless such breach is corrected within a reasonable period of time,and
(2) The County has neither challenged in an appropriate forum(in accordance with
Section 5.5) the District's conclusion that such failure or refusal to perform has occurred or constitutes a material
breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of
time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the
County shall have diligently taken steps to correct such breach within such reasonable period of time,the same shall
not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such
steps to correct such breach).
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(B) By County. Except as expressly provided herein, the County shall have no right to
terminate this Agreement for cause except in the event of the repeated failure or refusal by the District substantially
to perform any material obligation under this Agreement unless such failure or refusal is excused by an
Uncontrollable Circumstance; except that no such failure or refusal shall give the County the right to terminate this
Agreement for cause under this subsection unless:
(1) The County has given prior written notice to the District stating that a specified
failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on
the pan of the District and which will, in its opinion, give the County right to terminate this Agreement for cause
under this subsection unless such breach is corrected within a reasonable period of time,and
(2) The District has neither challenged in an appropriate forum(in accordance with
Section 5.5) the County's conclusion that such failure or refusal to perform has occurred or constitutes a material
breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of
time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the
District shall have diligently taken steps to correct such breach within such reasonable period of time,the same shall
not constitute a breach giving rise to the right of termination for as long as the District is continuing to take such
steps to correct such breach).
SECTION 5.4 NO WAIVERS. No action of the County or the District pursuant to this Agreement
(including,but not limited to,any investigation or payment),and no failure to act,shall constitute a waiver by either
party of the other parry's compliance with any term or prevision of this Agreement. No course of dealing or delay
by the County or the District in exercising any right, power or remedy under this Agreement shall operate as a
waiver thereof or otherwise prejudice such party's rights,powers and remedies. No single or partial exercise of(or
failure to exercise)any right,power or remedy of the County or the District under this Agreement shall preclude any
other or further exercise thereof of the exercise of any other right,power or remedy.
SECTION 5.5 FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties that all
legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship
between the parties wising therefrom shall be solely and exclusively initiated and maintained in courts of the State
of California having appropriate jurisdiction.
ARTICLE VI
TERM
SECTION 6.1 EFFECTIVE DATE AND TERM.
(A) Initial Term. This Agreement shall become effective,shall be in full force and effect and
shall be legally binding upon the District and the County from the Contract Date and shall continue in full force and
effect until June 30, 2020, unless earlier terminated in accordance with its terms, in which event the Term shall be
deemed to have expired as of the date of such termination.
(B) Option to Renew. This Agreement shall be subject to renewal by mutual agreement of
the parties,on or before June 30,2018, for an additional term of ten years(the`Renewal Term")on the same terms
and conditions as are applicable during the Initial Term hereof. The District shall give the County written notice of
its irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this
Agreement by Jane 30,2018,the Agreement shall expire on Jane 30,2020.
(C) Contract Rate During Renewal Term. In connection with the parties' right to renew this
Agreement for an additional ten-year term pursuant to Section 6.1(B), the parties shall, on or before Jane 30,2018,
negotiate an applicable change in the District Contract Rate for such renewal term. In determining any revisions to
the Contract Rate to be applicable during any renewal period, in addition to the circumstances described in
Section 4.2(A),the parties may take into consideration the following parameters,including but not limited to:
(1) actual cost of operations;
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(ii) population growth;
(iii) increase or decrease in available tonnage;
(iv) economic and disposal market conditions in the Southern California region;
(v) changes in transportation and technology;
(vi) closure and expansion of nearby landfills;
(vii) capacity of the Disposal System;and
(viii) available reserves which are in excess of the amount reasonably required as
reserves.
(D) Survival, Accrued Rights. The rights and obligations of the parties hereto pursuant to
Sections 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 hereof shall survive the termination or expiration of this
Agreement,and no such termination or expiration shall limit or otherwise affect the respective rights and obligations
of the parties hereto accrued prior to the date of such termination or expiration. At the end of the Term of this
Agreement,all other obligations of the parties pursuant to this Agreement shall terminate.
SECTION 6.2 [RESERVED]
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM. The County, at
its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate, or cause to be
operated, the Disposal System in accordance with Applicable Law and the operating rates and regulations of the
Department.
SECTION 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY.
(A) Performance Excused. Except as otherwise specifically provided in this Agreement,
neither the County nor the District shall be liable to the other for any failure or delay in the performance of any
obligation under this Agreement(other than any payment at the time due and owing) to the extent such failure or
delay is due to the occurrence of an Uncontrollable Circumstance.
(B) Notice. Mitigation. The party experiencing an Uncontrollable Circumstance shall notify
the other party by telecommunication or telephone and in writing, on or promptly after the date the party
experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within 15 days
by a written description of(1)the Uncontrollable Circumstance and the cause thereof(to the extent known), (2)the
date the Uncontrollable Circumstance began and the cause thereof, its estimated duration,the estimated time during
which the performance of such parry's obligations hereunder will be delayed, (3)the estimated amount, if any, by
which the District Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4) its
estimated impact on the other obligations of such party under this Agreement and (5)potential mitigating actions
which might be taken by the County or District and any areas where costs might be reduced and the approximate
amount of such cost reductions. Each parry shall provide prompt written notice of the cessation of such
Uncontrollable Circumstance. Whenever such act,event or condition shall occur,the parry claiming to be adversely
affected thereby shall,as promptly as reasonably possible,use its best efforts to eliminate the cause therefor,reduce
costs and resume performance under this Agreement. In addition,with respect to Changes in Law,the County shall
diligently contest any such changes the imposition of which would have a material adverse impact on the Disposal
System. While the delay continues,the County or District shall give notice to the other party,before the first day of
each succeeding month,updating the information previously submitted.
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(C) Impact on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere
with,delay or increase the cost to the County of meeting its obligations hereunder and providing Disposal Services
to the Participating Cities in accordance herewith,the County shall be entitled to an increase in the Contract Rate as
provided in the Original Waste Disposal Agreements (and therefore an increase in the District Contract Rate
hereunder)or an extension in the schedule for performance equal to the amount of the increased cost or the time lost
as a result thereof The proceeds of any insurance available to meet any such increased cost shall be applied to such
purpose prior to any determination of cost increases payable under this subsection. Any cost reductions achieved
through the mitigating measures undertaken by the County pursuant to the Original Waste Disposal Agreements
upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the
Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such
mitigation measures,as applicable.
SECTION 7.3 INDEMNIFICATION. To the extent permitted by law, the County agrees that, it will
protect, indemnify, defend and hold harmless the District from and against all Loss-and-Expense arising from the
District's activity as an"arranger"(for purposes of and as such term is defined under CERCLA or comparable state
statutes)of municipal solid waste disposal pursuant to this Agreement. In the event the District shall determine that
because of conflict or any other reason that it wishes to be defended by legal counsel other than the legal counsel
provided by the County, the cost of providing such legal counsel shall be the District's sole responsibility. The
District acknowledges the County's legitimate interest in actively participating in any defense, litigation or
settlement whether the County or the District provides legal counsel. Any costs incurred by the County pursuant to
this Section shall be considered an Uncontrollable Circumstance cost and the County shall be entitled to adjust the
Contract Rate (and therefore the District Contract Rate) as provided in subsection 4.2(A)herein. The County shall
not,however, be required to indemnify or defend the District from and against all Loss-and-Expense arising from
any willful,knowing, illegal or negligent disposal of hazardous waste(other than incidental amounts of Household
Hazardous Waste commonly found in municipal solid waste and permitted to be disposed in Class III landfills under
RCRA) which violates the County's landfill permits or Applicable Law. The parties agree that this provision
constitutes an indemnity under CERCLA (to the extent of the specific provisions of this Section). The parties
acknowledge that this subsection is not intended to and does not create any obligation on the part of the County to
provide any indemnification or defense to any hauler or other party which transports, receives, processes or
otherwise handles District Acceptable Waste, whether franchised or not, or any Independent Hauler or Transfer
Station which transports, receives, processes or otherwise handles District Acceptable Waste, under any
circumstances. The District acknowledges the County's legitimate interest in actively participating in any defense,
litigation or settlement,and shall,as a condition to this indemnity,coordinate fully with the County in the defense.
SECTION 7.4 RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall have any
responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the
other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The
County is an independent contractor of the District and nothing in this Agreement shall be deemed to constitute
either party a partner,agent or legal representative of the other parry or to create any fiduciary relationship between
the parties.
SECTION 7.5 LIMITED RECOURSE. No recourse shall be had to the general funds or general credit
of the County for the payment of any amount due the District hereunder, or the performance of any obligation
incurred hereunder, including any Loss-and-Expense of any nature arising from the performance or non-
performance of the County's obligations hereunder. The sole recourse of the District for all such amounts shall be
to the funds held in the County Solid Waste Enterprise Fund in accordance with the terms of this Agreement. All
amounts held in the County Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby,
and no such amounts shall constitute property of the District. The County shall make adequate provision in the
administration of the County Solid Waste Enterprise Fund for the payment of any amount or the performance of any
obligation which may be due hereunder.
SECTION 7.6 PRE-EXISTING RIGHTS AND LIABILITIES. Nothing in this Agreement is intended
to affect,release,waive or modify any rights,obligations or liabilities which any party hereto may have to or against
the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related
matter.
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SECTION 7.7 NO VESTED RIGHTS. The District shall not acquire any vested property, license or
other rights in the Disposal System by reason of this Agreement.
SECTION 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING. Any
liability incurred by the District as a result of collecting Acceptable Waste or processing it for diversion from
landfill, or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing,
shall be its sole liability,except as expressly otherwise provided herein.
SECTION 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall either party
hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential,
punitive or similar damages based upon claims arising out of or in connection with the performance or non-
performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation
made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal
theory.
SECTION 7.10 AMENDMENTS. Neither this Agreement nor any provision hereof may be changed,
modified,amended or waived except by written agreement duly authorized and executed by both parties.
SECTION 7.11 NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any
Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement
executed by the District or the County or any Legal Entitlement issued in connection herewith.
SECTION 7.12 FURTHER ASSURANCES. At any and all times the District and the County so far as
may be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every such further
resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or
reasonably requested by the other in order to give full effect to this Agreement.
SECTION 7.13 ASSIGNMENT OF AGREEMENT. (A)Assignment.Neither this Agreement nor any of
the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the
other party,which may be withheld in the other party's sole discretion. Notwithstanding the foregoing, either party
may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such
circumstances the party not requesting the assignment shall have the right to demand assurances of the financial,
technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning
party.
(B)Sale.The County shall not enter into any agreement for the sale of the Disposal System which provides
for an effective date for such sale prior to the termination of this Agreement.
SECTION 7.14 INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise provided herein, all
amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when due shall
bear interest at the Overdue Rate on the meant outstanding from time to time, on the basis of a 365-day year,
counting the actual number of days elapsed,and all such interest accrued at any time shall,to the extent permitted by
Applicable Law,be deemed added to the amount due,as accrued.
SECTION 7.15 BINDING EFFECT. This Agreement shall bind and inure to the benefit of the parties
hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.13
hereof.
SECTION 7.16 NOTICES. Any notice or communication required or permitted hereunder shall be in
writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the
notice address of the respective parties set forth on the cover page of this Agreement. Changes in the respective
addresses to which such notices my be directed may be made from time to time by any party by notice to the other
party.
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IN WITNESS WHEREOF,COUNTY and DISTRICT have caused this Agreement to be executed by their
duty authorized officers or representatives as of the day and year first above written.
COUNTY OF ORANGE
Date By
Director,OC Waste&Recycling
Date By
[NAME]
District Representative
Orange County Sanitation District
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY,CALIFORNIA
By
Date
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APPENDIX A
COPY OF ORIGINAL WASTE DISPOSAL AGREEMENT
Executive Copy
Return to Agenda
OPERATIONS COMMITTEE Meeang Dare TOBd.Of Dlr.
u/o7/tz tt/zs/u
AGENDA REPORT Itern Number Item Number
B
Orange County Sanitation District
FROM: James D. Ruth, General Manager
Originator: Jim Herberg, Assistant General Manager
Project Manager: Jim Colston, Environmental Compliance Manager
SUBJECT: Synagro Contract Amendment
GENERAL MANAGER'S RECOMMENDATION
Authorize Amendment No. 9 to Synagro West, Inc., (Synagro) Purchase Order No.
100760-013, increasing the annual amount from $6,580,000 to an amount not to exceed
(NTE) $8,600,000 for the period of January 1, 2012 through December 31, 2012 for the
Orange County Sanitation District's biosolids management contract. Thereafter, the
NTE will be $6,850,000.
SUMMARY
The recent termination of the EnerTech contract has resulted in significant savings to
the Orange County Sanitation District's (Sanitation District) biosolids management
costs.
Biosolids formerly managed by EnerTech are being sent to our existing vendors,
Synagro and Tula Ranch and will be sent to Orange County Waste and Recycling's
Prima Deshecha Landfill commencing in January 1, 2013 (pending board approval).
The proposed Amendment No. 9 to Synagro's contract is needed to accommodate the
additional loads of approximately 100-125 tons per day with no changes to the unit
price.
PRIOR COMMITTEE/BOARD ACTIONS
( April 26, 2006 - Approved Amendment No. 8, amended cost of sludge removal and
included a not to exceed limit of 6,580,000.
( April 28, 2004 - Approved Amendment No. 7, amended to include South Kem
Industrial Center and a not to exceed limit of $5,800,000 and amended term of
contract.
( May 22, 2002 - Approved Amendment No. 6, amended substituting Synagro West,
Inc. for Pima Gro Systems, Inc, cost of sludge removal, term of contract, and
required an Environmental Management System.
( August 25, 1999 - Approved Amendment No. 5, amended cost of sludge removal,
terms of contract, and incorporated force majeure clause.
Page 1 of 3
( Nov 2, 1996 - Approved Amendment No. 4, amended agricultural use sites and cost
of sludge removal.
( March 29, 1995 - Approved Amendment No. 3, amended agricultural use sites, term
of contract, incremental weather conditions, and cost of sludge removal.
( May 8, 1991 - Approved Amendment No. 2, amended agricultural use sites, term of
contract, early termination, and cost of sludge removal.
( October 10, 1990 - Approved Amendment No. 1, amended agricultural use sites and
cost of sludge removal.
( May 11, 1988 -Authorized General Manager to enter into an agreement with Prima
Gro Systems, Inc. (Currently known as Synagro West, Inc.)for removal and
disposal/reuse of Districts' residual solids from Plants 1 and 2.
ADDITIONAL INFORMATION
There is no proposed change in the unit price per ton from the existing Synagro
contract, and staff is not proposing to change the volume of tonnage sent to Synagro
beyond that which has previously been discussed to manage the EnerTech tonnage;
however, with the additional loads to Synagro, the NTE contract amount of $6,580,000
for 2012 calendar will be exceeded. To accommodate the increased loads for this
calendar year, Synagro's NTE contract limits must be increased by $1,956,438, which
totals to $8,600,000. Thereafter, the NTE will be $6,850,000, which is sufficient to cover
the required contract minimum.
The proposed Amendment is exempt from CEQA pursuant to: (1) CEQA's Class 1
Exemption (CEQA Guidelines § 15301); and (2) CEQA's "Common Sense" Exemption
(CEQA Guidelines § 15061(b)(3)).
CEQA's Class 1 exemption applies to the operation, repair, maintenance, permitting,
leasing, licensing, or minor alteration of existing public or private facilities involving
negligible or no expansion of a use beyond the use existing at the time of the lead
agency's CEQA determination (CEQA Guidelines § 15301). Here, the Amendment calls
for a continuation of the status quo: the Sanitation District's facilities will continue to
operate at their current rate; Synagro will continue to use the same streets and
freeways to haul the same quantity of biosolids for processing from the Sanitation
District to Synagro's operations in Kern County, California, and La Paz, Arizona,
respectively, that it currently hauls biosolids for processing to its operations in Kern
County, California, and La Paz, Arizona, respectively. As a result, the Amendment calls
for the operation of existing public and private facilities involving negligible or no
expansion of the use existing at the time that the Amendment will be considered by the
Sanitation District's Board, and when the Sanitation District makes its CEQA
determination. The Amendment is therefore exempt from CEQA review pursuant to
CEQA Guidelines Section 15301.
Page 2 of 3
CEQA's "Common Sense" Exemption applies where it can be seen with certainty that
there is no possibility that the activity in question may have a significant effect on the
environment (CEQA Guidelines § 15061(b)(3)). In order to determine whether a project
will have a significant environmental effect, a lead agency must first define the baseline
environmental conditions. The "project" for CEQA purposes consists of changes in the
baseline conditions, if any, that the lead agency's action will cause. It follows that a lead
agency is not required to identify impacts that are considered part of the baseline
conditions. The baseline usually consists of the physical conditions that exist when the
lead agency commences CEQA review (CEQA Guidelines § 15125(a)). As explained
above, the Amendment calls for a continuation of the status quo. The activities
contemplated under the Amendment are already part of the environmental baseline
conditions. As a result, it can be seen with certainty that there is no possibility that the
Amendment may have a significant effect on the environment, and the Amendment is
exempt from CEQA review pursuant to CEQA Guidelines Section 15061(b)(3).
BUDGET/DELEGATION OF AUTHORITY COMPLIANCE
This request complies with authority levels of the Sanitation District's Delegation of
Authority. This item has been budgeted. (Line item: Section 5, Page 6). Project
contingency funds will not be used for this Amendment.
Date ofApproval ContractAmount Contin enc
04/26/06 $6,580,000 NIA
11/28/12 $8,600,000 NIA
ATTACHMENT
The following attachment(s)maybe viewed on-line at the OCSD website (www.ocsd.com) with the
complete agenda package and attachments:
( Amendment No. 9
JC:jb:gc
Page 3 of 3
AMENDMENT NO. 9 TO AGREEMENT
FOR THE AGRICULTURAL USE OF SEWAGE SOLIDS
THIS AMENDMENT NO. 9 TO AGREEMENT,is made and entered into this_day of
,2012,and to be effective the_day of ,2012,by and between the Orange County
Sanitation District("DISTRICT'),and SYNAGRO WEST,INC.,formerly known as,Pima Gro Systems,
Inc.,of Redlands,CA("CONTRACTOR").
WITHNESSETH:
WHEREAS,DISTRICT and CONTRACTOR previously executed an Agreement dated June 1,
1988, for professional services entitled"AGREEMENT FOR THE AGRICULTURAL USE OF
SEWAGE SOLIDS" ("ORIGINAL AGREEMENT")for removal and disposal/reuse of DISTRICT's
Residual Solids(biosolids);and,
WHEREAS,DISTRICT and CONTRACTOR amended such ORIGINAL AGREEMENT by
Amendment No. 1 dated October 10, 1990,Amendment No. 2 dated June 1, 1991,Amendment No. 3
dated April 1, 1995,Amendment No.4 dated December 2, 1996,Amendment No. 5 dated September 1,
1999, letter entitled"Modification of the Synagro West, Inc. Agreement for the Management of
Biosolids" dated September 23,2005 ("Letter Modification"),Amendment No. 6 dated July 1,2002,
Amendment No. 7 dated July 1,2004, and Amendment No. 8 dated July 1,2006(the ORIGINAL
AGREEMENT,Amendment No. 1,Amendment No. 2,Amendment No. 3,Amendment No.4,
Amendment No. 5, Letter Modification,Amendment No. 6,Amendment No. 7,and Amendment No. 8
shall be collectively referenced herein as the"AGREEMENT');and,
WHEREAS,DISTRICT has determined that management of biosolids is necessary; and,
WHEREAS,CONTRACTOR is qualified to provide the necessary services in connection with
these additional requirements based on its demonstrated competence and has agreed to provide the
necessary services,and has been selected in accordance with the DISTRICT's selection policy regarding
professional services and conformance with the DISTRICT's Environmental Management System for
Biosolids(EMS); and,
WHEREAS,DISTRICT,has negotiated with CONTRACTOR and has determined the final
negotiated fee for said service as reasonable; and,
WHEREAS,the Board of Directors has accepted the recommendation of staff,and has approved
this Amendment No. 9 between DISTRICT and CONTRACTOR.
NOW,THEREFORE, in consideration of the promises and mutual benefits which will result to
the parties in carrying out the terms of this Amendment No. 9,it is mutually agreed as follows:
1. The annual compensation allowed under the AGREEMENT pursuant to Paragraph 2 of
Amendment No. 8,which amended Paragraph 2 of Amendment No. 7,amending Paragraph 1 of
Page I of 3
896380.1
Amendment No. 6, and amending Paragraph 1 of Amendment No. 5 shall be replaced with an
annual compensation allowed under this AGREEMENT not to exceed$8,600,000 for the period
of January 1,2012 through December 31,2012;thereafter,this AGREEMENT shall not to
exceed$6,850,000.
2. This Amendment No. 9 does not modify or change the Term of the AGREEMENT as set forth in
Paragraph 7 of Amendment No. 7 and reaffirmed in Paragraph 7 of Amendment No. 8.
3. This Amendment No. 9 is supplemental to the ORIGINAL AGREEMENT date June 1, 1988,as
modified by Amendments Nos. 1 through 8 and the Letter Modification,and is by reference made
a part of said AGREEMENT. All of the terms,conditions and provisions thereof shall continue
in full force and effect unless specifically addressed by this Amendment.
4. In the event of any conflict or inconsistency between the provisions of this Amendment No. 9 and
any of the provisions of the ORIGINAL AGREEMENT,Amendment Nos. 1 through 8,or the
Letter Modification,the provisions of this Amendment No. 9 shall in all respects govern and
control.
5. The persons executing this Amendment No. 9 on behalf of the Parties hereto warrant that(i) such
party is duly organized and existing, (ii)they are duly authorized to execute and deliver this
Amendment No. 9 on behalf of said Party,(iii)by so executing this Amendment No. 9,such parry
is formally bound to the provisions of this Amendment No. 9, and(iv)the entering into this
Amendment No. 9 does not violate any provisions of any other agreement to which said Parry is
bound.
[SIGNATURES ON NEXT PAGE]
Page 2 of 3
896380.1
IN WITNESS WHEREOF,this Amendment No. 9 to the AGREEMENT has been executed in the
name of the DISTRICT by its duly authorized officers and by CONTRACTOR,as of the day and
year first above written.
ORANGE COUNTY SANITATION DISTRICT
By
Troy Edgar
Chairman, Board of Directors
By
Maria Ayala
Secretary,Board of Directors
CONTRACTOR
By
NAME
President
By
NAME
Assistant Secretary
APPROVED AS TO FORM:
By
Bradley R.Hogin
DISTRICT,General Counsel
Page 3 of 3
896380.1
Return to Agenda
OPERATIONS COMMITTEE Meeting Date TOBd.of Dir.
11/DJ/12 11/28/12
AGENDA REPORT Item Item Number
9
Orange County Sanitation District
FROM: James D. Ruth, General Manager
Originator: Jim Herberg, Assistant General Manager
CIP Project Manager: Umesh Murthy
SUBJECT: SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1,
PROJECT NO. P1-101
GENERAL MANAGER'S RECOMMENDATION
A. Approve Plans and Specifications for Sludge Dewatering and Odor Control at Plant
No. 1, Project No. P1-101, on file at the office of the Clerk of the Board;
B. Approve Addendum Nos. 1 through 6 to the plans and specifications;
C. Receive and file bid tabulation and recommendation;
D. Receive and file Award Protest dated October 5, 2012 and Supplemental Award
Protests dated October 12, 2012 and October 30, 2012 from Balfour Beatty
Infrastructure, Inc. concerning the award to W. M. Lyles Company;
E. Receive and file response letter dated October 11, 2012, from W.M. Lyles
Company to Award Protest from Balfour Beatty Infrastructure, Inc.;
F. Receive and file Orange County Sanitation District Final Disposition letters dated
October 15, 2012 and October 31, 2012 to Balfour Beatty Infrastructure, Inc.
responding to the Award Protest;
G. Deny Award Protest filed by Balfour Beatty Infrastructure, Inc.;
H. Receive and File Award Protest from Moyno, Inc. dated August 23, 2012, alleging
that the sole source designation of Seepex for cake pumps was improper;
I. Receive and file Orange County Sanitation District Final Disposition letter dated
October 4, 2012 to Moyno, Inc., responding to Award Protest;
J. Reject untimely Award Protest filed by Moyno, Inc.;
K. Approve a budget increase of $24,708,300 for Sludge Dewatering and Odor
Control at Plant No. 1, Project No. P1-101 for a total amount not to exceed
$171,978,300;
Page 1 of 8
L. Award a construction contract to W.M. Lyles Company for Sludge Dewatering and
Odor Control at Plant No. 1, Project No. P1-101, for a total amount not to exceed
$126,908,300; and,
M. Approve a contingency of$3,800,000 (3%).
SUMMARY
Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101 (Project),
replaces existing solids and dewatering odor control systems and installs sludge
thickening systems at the Orange County Sanitation District (Sanitation District) Plant
No. 1. The Sanitation District needs this project for the following reasons:
1. Additional capacity to thicken and dewater sludge due to conversion of Plant
No. 1 to full secondary treatment and increased flows to support expansion of the
Ground Water Replinishment System (GWRS).
2. Existing sludge dewatering facilities that was built in the late 1970s and early
1980s has to be replaced because equipment is in poor condition and is reaching
the end of its useful life.
3. Increase biosolids cake dryness to reduce biosolids management costs.
4. Improve sludge thickening to optimize use of existing digesters and eliminate
construction of new digesters.
5. Manage site constraints at Plant No. 1 by building compact solids treatment
facilities and facilitate future expansion.
This project will reduce operational costs by an estimated $3.62M annually and has a
lower total 25-year operations and capital costs compared to the Sanitation District
existing process/technology.
Bid Evaluation
The Sanitation District advertised for bids on May 8, 2012. Seven sealed bids were
received on August 9, 2012. The bids were evaluated in accordance with the Sanitation
District's policies and procedures. W.M. Lyles Company was deemed the lowest
responsive, responsible bidder. The bids were significantly higher than the engineer's
estimate and an increase in the project budget of $24,708,300 is required in order to
award the recommended contract.
Staff recommends awarding a construction contract to W.M. Lyles Company for Sludge
Dewatering and Odor Control at Plant No. 1, Project No. P1-101, for a total amount not
to exceed $126,908,300.
Page 2 of 8
Summary information on the bid opening for Sludge Dewatering and Odor Control at
Plant No. 1, Project No. P1-101, is as follows:
Project Budget $147,270,000
Construction Contract Budget $102,200,000
Engineer's Estimate $102,200,000
Lowest Responsive, Responsible Bid $126,908,300
High Bid $147,928,647
Bidder Amount of Bid
W.M. Lyles Co. $126,908,300
Balfour Beatty Infrastructure $127,846,000
J.R. Filanc Construction $130,544,357
J.F. Shea Construction $135,413,689
Shimmick Construction $139,916,069
Flatiron West, Inc. $142,000,000
Archer Western Contractors $147,928,647
Balfour Beatty Infrastructure, Inc., the second low bidder, and Moyno, Inc., an
equipment supplier, sent formal protests of the award recommendation to the Sanitation
District following the bid evaluation and notification of award recommendation. Staff
reviewed, considered and responded to these protests and Staff determined that the
protests do not merit a change to the award recommendation.
PRIOR COMMITTEE/BOARD ACTIONS
June 2012 - Approved Equipment Pre-Selection Agreement with GEA Westfalia
Separator, Inc., for a total amount not to exceed $14,665,007, in a form approved by
General Counsel (Attachment 8).
January 2012 - Adopted Resolution No. OCSD 12-01, a Resolution of the Board of
Directors of the Orange County Sanitation District, making findings pursuant to Public
Contract Code, Section 3400 in support of the Sole Source Specification of Sludge
Cake Pumps for Sludge Dewatering and Odor Control at Plant No. 1, Project
No. P1-101, approved plans and specifications, and authorized staff to advertise
Invitations for Bid and solicit bids.
November 2010 - Adopted Resolution No. OCSD 10-21, adopting the "One Water, One
Watershed" Integrated Regional Water Management Plan and authorized the General
Manager, or his designee, to enter into a Grant Funding Program with California
Department of Water Resources for monetary assistance under Proposition 84, for the
Sludge Dewatering, Odor Control, Land Primary Sludge Thickening at Plant No. 1,
Project No. P1-101.
July 2010 - Adopted Resolution No. OCSD 10-10. A Resolution of the Board of
Directors of the Orange County Sanitation District, making findings pursuant to Public
Contract Code Section 3400 in support of the Sole Source Specification of Thickening
and Dewatering Centrifuges.
Page 3 of 8
ADDITIONAL INFORMATION
The lowest responsive, responsible bidder is W.M. Lyles Company in the amount of
$126,908,300 and is higher than the engineer's estimate by $24,708,300. Due to the
significant difference between the engineers estimate and the low bid, staff, along with
the Design Consultant, HDR Inc., analyzed the following:
1. Compared engineer's estimate to the low bid by reviewing bid documents, bid
item pricing, subcontractor pricing, and focused on areas where there was
comparable information from bidders.
2. Revalidated the P1-101 Project by updating economic the comparison of solids
processing alternatives study completed in August 2010.
3. Evaluated the potential savings and costs for awarding the contract or rejecting
and rebidding.
1. Comparison of Engineer's Estimate vs. Low Bid
The Design Consultant, HDR Inc., and OCSD staff evaluated the reasons for the
difference of $24,708,300 between the engineer's estimate and the low bid. The
summary of differences in the engineer's estimate and low bid are listed below:
Cost Item Cost Difference Comments/Reasons
Contractors markups for Based on recent bids evaluated
overhead and profit $12 million by HDR, the markups were
based on optimistic assumptions
Contractors are concerned about
Low escalation value $3 million inflation of commodity prices on
multi-year projects
Building and site materials $10 million Engineer's estimate was low
Equipment costs $4 million Engineer's estimate was low
2. Revalidation of the P1-101 Project
If approved, the Project budget will increase by $24,708,300 for the construction phase
of this Project. Due to this impact, staff directed HDR Inc., to revalidate the project
economics by updating the August 2010 study that compares the costs of solids
processing alternatives at Plant No. 1.
The revalidation was based on current and future wastewater flows, process
configurations, land constraints, and engineering economics taking into account costs
for energy, biosolids hauling/management, labor, chemicals, facility repair, and
rehabilitation. Three basic process configurations were analyzed for a variety of
conditions:
Page 4 of 8
Alternative 1 — Current Configuration:
In this system, primary sludge is thickened in the clarifiers, Waste Activated Sludge
(WAS) is thickened with Dissolved Air Flotation Thickeners (DAFTs), the thickened
sludge streams are combined and digested, the digested sludge is dewatered using belt
filter presses (BFPs), the dewatered cake is stored in silos, and the cake is hauled
offsite for various beneficial uses.
Alternative 2— P1-101 Project Configuration:
In this system, primary sludge and WAS would be co-thickened with centrifuges, the
thickened sludge would be digested, the digested sludge would be dewatered with
centrifuges, and the dewatered biosolids cake would be stored in silos and then hauled
offsite.
Alternative 3— Blended Configuration:
This is a hybrid of the first two configurations. Thickening and digestion would be the
same as the current configuration; however, the digested sludge would be dewatered
with centrifuges.
2012 Present Worth Update
Present Worth, $ millions
Alternative Capital R&R Operating Total
25-Year
1 - Current Configuration 265 134 474 873
2 - P1-101 Project Confi uration 205 119 393 717
3 - Blended Configuration 237 125 366 729
The following conclusions were derived from the revalidation study:
1. Centrifuge thickening and dewatering option for solids handling has a lower
present worth for the 25 year and 50 year life periods.
2. Non-economic factors such as space utilization and operational flexibility still
favored centrifuge thickening and dewatering processes for solids handling.
Based on economic and non-economic considerations, centrifuge thickening and
dewatering processes for solids handling at Plant No. 1 (consistent with the existing
P1-101 design)was confirmed as the best long term facility option.
3. Award and Rebid Options
Following are options for moving forward on this Project:
Reject all bids and rebid the Project: Under this option, the Project would be
redesigned and rebid. Potential design changes to reduce cost were reviewed.
However, staff does not recommend this option due to the following reasons:
Page 5 of 8
a. There are not sufficient design changes and deletions that would result in
substantial cost savings for this Project. Value engineering was performed for
this Project in September 2010 and recommendations were implemented during
the design of this Project.
b. Significant additional design fees would be required for the Consultant to make
design changes and rebid the Project.
c. Staff estimates a delay of nine months for the Project to be redesigned and rebid.
The delay cost for lost operational savings and inflation can be significant and
offset any potential redesign savings. In addition, delays increase the risk of not
having the required capacity or operating equipment to meet demand when
needed.
d. There is no assurance (because of market timing and Contractors' workload) that
cost savings will be achieved by rebidding the Project.
Award Contract to Lowest, Responsive, and Responsible Bidder: Staff has
evaluated bids and determined that W.M. Lyles Company is the lowest, responsive, and
responsible bidder. Staff will continue to pursue savings on this Project without
relegating safety, operational, and maintenance issues. The three lowest bids are
priced within a 3% range. This close price range confirms that the Scope of Work was
properly reflected in the contract documents (plans and specifications). Based on the
findings described in this agenda report, staff recommends awarding the contract to
W.M. Lyles Company, the lowest responsive, responsible bidder for a total amount not
to exceed $126,908,300.
Sole Source Items
The Sanitation District has designated the following items by specific brand or trade
name pursuant to Public Contract Code §3400 (b)(2) in order to match other products in
use on a particular public improvement either completed or in the course of completion;
or, §3400 (b)(3) in order to obtain a necessary item that is only available from one
source:
Cutler-Hammer—Switchgear Circuit Breaker
Air Products and Chemical, Inc. - Hydrogen Line
WEED Modbus+ Communication - Programmable Logic Control Processors
Modicon Quantum - Programmable Logic Controls
Cisco - Ethernet Network Switches
Edwards System Technologies - Fire Alarm Systems
Securitas Services USA - Security
ION 7550 - Power Monitors
Casi-Ruso - Access Control and Security System
Sumitomo Electric - Fiber Optic Network System
Westfalia and Alfa-Laval - Dewatering Centrifuges
Westfalia - Thickening Centrifuges
Seepex - Sludge Cake Pumps
Page 6 of 8
CEQA
The recommended action is within the scope of the Subsequent Environmental Impact
Report for the Secondary Treatment and Plan Improvement Project, dated March 2005.
The Subsequent Environmental Impact Report for the Secondary Treatment and Plan
Improvement Project, supplementing the Sanitation District's Strategic Plan Program
Environmental Impact Report (PEIR), was certified in October 1999. Pursuant to CEQA
Guidelines section 15168(c)(4), the Sanitation District has used a written checklist to
document its evaluation of the recommended action, and has determined that the
recommended action is still within the scope of program EIR.
In addition, the Project was determined to be eligible for a categorical exclusion under
the National Environmental Pollution Act (NEPA) in June 2006.
BUDGET/DELEGATION OF AUTHORITY COMPLIANCE
This recommendation complies with authority levels of the Sanitation District's
Delegation of Authority. This item has been budgeted (FY2012-13, Section 8, Page 55)
but the budget is insufficient and requires additional funds to cover the increased cost of
construction.
If approved, additional funding will be transferred from the Replacement, Rehabilitation,
and Refurbishment line item identified in Budget Section 4 - Page 16, line item 13, to
the CIP line item 12 and allocated to this project. The funding will be transferred by
fiscal years in the following manner:
FY 12-13: $791,420 FY 13-14: $3,415,850
FY 14-15: $10,088,780 FY 15-16: $8,157,530
FY 16-17: $2,254,720
Date of ADDroval Contract Amount Contingency
11/28/2012 $126,908,300 $3,800,000(3.0%)
Page 7 of 8
ATTACHMENTS
1. Balfour Beatty Infrastructure Award Protest letter dated October 5, 2012 [Enclosures
on file with the Clerk of the Board]
2. Balfour Beatty Infrastructure Supplemental Award Protest dated October 12, 2012
[Enclosures on file with the Clerk of the Board]
3. Balfour Beatty Infrastructure Supplemental Award Protest dated October 30, 2012
[Enclosures on file with the Clerk of the Board]
4. W.M Lyles Company response letter dated October 11, 2012
5. OCSD Final Disposition letter dated October 15, 2012 RE: Balfour Beatty Protest
dated October 15, 2012
6. OCSD Final Disposition letter dated October 31, 2012 RE: Balfour Beatty Protest
dated October 30, 2012
7. Moyno, Inc. Award Protest letter dated August 23, 2012 [Enclosures on file with the
Clerk of the Board]
8. OCSD Final Disposition RE: Moyno Protest dated October 4, 2012
The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the
complete agenda package and attachments:
9. Contract Agreement (33 pages)
10.Pre-Selection Agreement (21 pages)
JH:DF:UM:dm:gc
Page 8 of 8
MARKS, FINCH,THORNTON& BMRD, LLP
ROBERT J MARKS, APC V ATTORNEYS AT LAW JON F. GAUTHIER. APC V
I F'NCH JR. 4747 EXECUTIVE DRIVE - SUITE 700 DANIELLE C. HUMPHRIES
I-ON CHRISTOPHER R. SILLARI
-_-_ SAN DIEGO. CALIFORNIA 9 2121-310]
DUSTIN R. JONES
TELEPHONE (BSB) ]3]-3100 uURAURA B. MAC xEEL
-_ FACSIMILE (55a) ]3]-3101 RODRIGO F. MOREIRA
SAN IEL P. SCHOLZ
'IT2 INTERNET WWW-m11D.COm RNA P- KENNEDY
E-MAIL P1incM1QmnM1.cOm ADAM C. WIL
T
_ DRETT T. WALKER
i L�� M. KATY ROSS
dL R
_ E October 5, 2012 J. PATRICK HICKS
'=R V OF COUNSEL
OUR FILE NUMBER
- - VEHRILL.
1439.001
BID PROTEST
VIA FLECTRONICMAILAND
C\1TFD STATES PARCEL SERVICE
Ms. \a- 'm b;.
Prirci ,, C,rti a, .1dn-ir:,ii-tor
I I cz [ I I , ya', Ln'.,,i Ul,trict
L:,Lct�l Jle�. CI I :1 'I"OS
Re: IrOrange County Sanitation District
Sludge Dewatering And
Odor Control At Plant No. I
PI-101
r.. Bidder: W. M Lyles Company
Balfour Beatty Infrastructure Inc
Dear Ms. Dubi
1, 1:,t -_I, ion
R2 e;c n- f3rd four Beatty Infrastructure,Inc.(Balfour Beatty),having its
principal l,I: .,i d_:-ia zdcross and phone number of 5050 Business Center Drive, Suite 250,
F_r=:�,l t all: I ii , ,is_A I-07)427-8900. This is Balfour Beatty's protest of the
D1,111,- sI)aob�r :. 7I1 no:ice ofintenttoawardtheabove-referenced projeetto W.
M. L -1-, ( � ' 1 t WML's bid for the project is non-responsive and may not
be axel «zu<c � \11 m-., ci to install a temporary wooden shoring system in lieu
of:i•. h ,.i--1 e,i r� ri;_ne t steel shoring system. Had WML committed to install
the1) n1, ri-I steel to--:-gAI,tern,it would not have been the low bidder.
MoLc .e.: b.iau=- theI):, ct ',no%Ns about WML's improper product substitution,it
can r:en A \11 = -i,l ar.d -hen insist that WML install the specified system without
paci `:,-`.11. : r1-Ic-iril.'.n:I -.,liar change order. Accordingly, WML enjoyed an unfair
con : et-.❑ I 'JI., ',id should be rejected. The District should award the
proiaa', to B, io_Ir Beta, _, :i. lowest responsive,responsible bidder.
Ms.Natasha K. Dubrovski
October 5,2012
Page 2 of I 1
Fict�-�I. I3.:3_round
1'rnject And Bid Documents
1 1. the District issued its Notice Inviting Bids and Bid
). for the District's Sludge Dewatering And Odor Control
1 I' -w I Fr, t [1, re:-. No. P1-101 ("Project'). The Project consists ofthe
I �>:'>-i.._ >]-,-,a dewatering and odor control systems,and the installation
1r�n n �I o 1 to activated sludge thickening systems. Construction requires
f h�_- z Cr-table pipe systems,valve vaults and tunnels,as well as
�nolIcr, -ponents and existing pipes which will remain.
11.a'_:,n {'.:'-e Cis Oc'cuments which are relevant to WML's bid deviation are
Jx. .:n- C`nldl lLed
Oul n_ _ >s period prior to the bid deadline, prospective bidders could
d_.i ri:1 cation of the Project plans and specification in writing. (Tab
1. \.,=i..z Inviting Bids.) Bidders had a duty to request the District's
it ler-r.:z:i: n of any portion of the Bid Document about which the bidder
, JI :,I:I cib= as to the meaning...." (Tab 2,p. 3,Instructions to Bidders,
IB--. >chi
d e�- �< required to submit responsive bids. (Tab 2,p. 7, Instructions
U Jc:v�. M-14, subd. B.) "Bids submitted in strict accordance with
_..o I U. -aments [the Bid Documents] will be deemed responsive.
• Bidde 1 J not submit alternative bids, i.e., bids that are not precisely
based n the Bid Documents. Section 8 of the Instructions To Bidders
clear states:
IS-8 MOGIF EO AND ALTERNATIVE BIDS
Frviate from what is requested in the IFB Documents.
jetted when the Bidder imposes conditions that would modify
s the IFB.
Irir-iaS::-> I Bidders, § IB-8, subds. A and B.)
In _�za..c. ..re with the California Subletting and Subcontracting Fair
I'caiem , . Public Contract Code section 4100, et seq., bidders were
rc,rr.r_d disclose in their bids each subcontractor that would be
r'. mi[r.a in excess of one-half-of-one percent of the work. (Tab 3,p. 3,
1 - `. rm No. 2.)
Ms.Natasha K.Dubrovski
October 5,2012
Page 3 of 11
h- Ric _Jocu7ents required the two apparent low bidders to escrow their
Bid with the District as part of their bids for the Project. (Tab
4, p. Provision § SP-13.)
• The 1) 11 c I :aserved the right to reject any bid it received. (Tab 2, p. 9,
Instnta I Bidders, § I13-19.)
B. The B�Iow-Water-Table Steel Shoring System Specified
BT I':a District And The Pre-Bid Question And Answer
n-zr t, included a Schedule of Prices which required bidders to
sc^t ate 1,i i s Lx Pro s c i , extensive shoring work. (Tab 3,p. 32, Bid Forms.) The
1,T)ra 1 ii , -« i r i- ;ring system below the Centrifuge Building which was
designee to protcet t I Ater-table pipes and tunnels. (See Tab 5, Dmwing Cl-7006.)
For example,the Pic' --c,ings include rotes such as:
5. " --IN TUNNEL 17 ALONG ITS ENTIRE LENGTH.
SPECIFICATION SECTION 01722. PROTECT.ON
a WACENT CONSTRUCTION FOR
-U.REWNTS AND LOCATION OF SIIORINt
-LT THE 72' RCP TFE PIPE ALONG ITS
-tit it LENGuL SEE SPECIFICATION SECTION
- ,2. PR01E0T10N OF ADJACENT
s�UCMN FOR REOUIRFHENTS ANC
i .ATION OF SHORING.
(Tzh Sl The llistric gip:crud a steel shoring system which will be left in place after
P: -it 1ci r) the finished Project. (See Tab 6,Specification Section
-Est Piline.I
P-i r :o Si d. the Dis_-i et published an answer to Bidder Question No. 27 regarding
LE< car_c: f 9;e sh.tiring s amm under the Centrifuge Building. A copy of the Question
�eJ _t L:b 7. Summarily,a bidder identified plan sheets detailing the
e'
,I �r1 n _I d _ 6. : rr-1 i ch type of shoring was required to be installed. The District
❑-<rterec i:--,clearly that steel sheet shoring was required and referred
]Sc, I I r. section 02361, Steel Sheet Piling. (Tabs 6 and 7.) The District's
.c t Lractors to `Bid as specified."t
)i-triet has the discretion to specify whatever shoring system it
c� Jed, in insisting that its contractor install the steel sheet
y-eb L i_J_i r*_psi r is phrased no elicit an answer that would have allowed bidders the
-. . i ii , F - .�.��-.i :Paringsystem. The question states,"Please confirm that specifically
F I _ -i- i- 'i. required in this location and the contractor has an option on which type
'ri,,r words,the contractor that asked the question wanted to use a cheaper
a� T _ i n - F._.,d E i d that m(�e electing instead to enforce its soecifications. The
Usv:t ciJ I t F s L' 11 _1: otthe bidderthat asked the question.
arcitz h. Drat .ski
Pa_,, Lof _
sho-i,,- I i i, t,.e of he steel shoring system will minimize the chance of
ic,, and _,i>6r_ pipe below the Centrifuge Building because the system can
re :,,i r: plzea. R,n_, it o' shoring system after construction often requires significant
h_iti cn: n_`tha v,-c_ to pet it to detach. That vibration could damage the underground
p17a. : _, i I .Gone pipes. Accordingly,the system needs to be one that
co_:Ic Pe lrn pa rn,a::an.� Icp.ace. Anon-steel system,such as a"beam and wood
car. . sen_. :n_:IJ nn- >_afCe. Beam and wood lagging systems consist of treated
L:n4cr r�l.ed Fehr -i,,a: steel beams,and are substantially cheaper than steel
aa:n� ,tre final �r, ate1, t „nnanent shoring systems where the treated lumber
Cte r+a t-� c . i I I de-er.orate much quicker than steel. The steel system is
;uaerior x:c rras sFeci;i e :o such in the Contract documents.
�ecorc tha s:ri s,,rr. is essential to the Project because the shoring will be
Iocc--1 iF n , °act allot+ 1h. tII itcr table and must therefore be water tight. Atimber
-•.�lem ear not a�1[e,t the it-oisture seal that the District would achieve with an
terloc 1,-J stae_ aanel s'torla_ system. Photographs of steel shoring systems and beam
�ad tt a la _Ic= 1 , t-m_ sN siems are enclosed at Tabs 8 and 9,respectively.
t the District's Receipt Of Bids
I ire I) ;ri at ec,,iced the following seven bids for the Project on August 9,2012.
L,l, _ Amount Percent From WML
`.ARIL $126,908,300.00
Balfour 3cau� $127,846,000.00 .73%
J.R. ei_ana $130,544,357.00 2.8%
J.F. shee isinaioi $135,413,689.00 6.7%
ShimmiA Coso,rccou $139,916,069.00 10.2%
Flatixn A`. ,st 1-i $142,00 ,000.00 11.9%
Archer R�itrz-.ors $147,928,647.00 16.6%
(Ta[, I c. 1)i;t-,c t _Ii-riarn of Bid Results.) Balfour Beatty's bid was less than three-
quaras of c accent 1,i:1:n�4 'A ML's bid.
D. WMI.'< Shoring Substitution
While Balfour Beatty Froposed to provide exactly what the District asked for,
oFF, s to za Fcn I'ch. WML's bid includes use of Sehnabel Foundation
per-orm wood shoring work as opposed to the required steel.
\\ \I L.r,tac nah-II 't storing subcontractor on WML's bid. (Tab 10,p. 1.)
a.— cr : t t proposal,a copy of which is enclosed at Tab 11,to Balfour
[-Ill-- Is. \II_ eased on the District's prohibition of bids that"deviate from
rcbat is xq_iesteJ in tha le 13 c-,In•:acts"(Tab 2,pp. 5, § IB-8.),Balfour Beatty rejected
I .na,»J �,,, _se Schnabel proposed a beam and wood lagging system
',. \r„ha K. Dubrovski
14tr.^cr �- J012
sq.l re J ;tce' sy stem. Schnabel's bid states under the Scope of Work
z.:i, i I h, i i) ill c(a si st of drilled in steel solder piles with timber lagging
-a.wJI the h:Is. _ ., bean- and wood lagging system. (Tab 11,p. 2; we also
JP _:-..e= Its proposed wood shoring system on its website,a copy of
_:•.:dais ,.J :.- T::b The website confirms the wood system is designed for
ip, r-r. .-zth- thn r,:n.:.nent, protection,stating:
\zct.rt', , ;t.FP 11. as herein described, refers to a temWrary shoring
=tur tIAt b1111: from the top down, a sequence that provides
i:r.>...1 < <1 1- the soil as the excavation proceeds.
• • t
Olie:i '1-: i: meal support system is a soil nail wall or tiedback
'Cl]:,,: b._:n i ,.3 lagging wall. These systems function to support
tLc s_ri, -ncm_ ,_1,_nJ during subsurface excavation and only until the
hzscc�cct r,as tnJ :'oor slabs are constructed and achieve strength; at
th : :iron ttc ne,, I .ndation walls and slabs take over the support which
sr a, nr„iJec be tit: cxaavation support system.
(Tab 12 J--i :ably,Schnabel does not install steel shoring systems.
13a-d _:r I3:_an LoIt- Iliance with the Bid Documents and agreement to supply
the s-ce1 i c ;tag _ht-lr c <,iem, instead of deviating from the Bid Documents like
V6AII -c.c6,J -.i ILxut_ the apparent low bidder for the Project.2 Scbnabel's beam
and .c J I , i ri rr - .t prsc was$1,521,600.00. Balfour Beatty's cost to install the
stce. ;1h r. r_ tan- "-n 1.800.003,which is$2,083,200.00 more than what WML
agrre l . , �ch:_ah_I r i a substitute wood system. Thedifference between Balfour
fie,-, - _i:, t� �I I r.-ic $937,700.00. Had Balfour Beatty used the Schnabel bid,
its price 1) e hee❑ o�cr $2 million lower and over$1 million lower than WML
uni i t i,, r competitive advantage taken by WML by use of Schnabel's wood
TI:, _-io. c.... c =i, P%I I-'s substitution of the beam and wood lagging system,for the specified
cc] -:r i. . . .:,ir._ '`d %I'.'s escrowed bid documents. As a"condition of award of the Contract;'
nrJ h r i,-a_ -cd to deposit with the District"all documentary information
.-:.lc_ Ir ,r:i _r. hi -ica= for this Project." Accordingly,WML may not be awarded the
-:a , _-- n - -.r a vba_ s barn and wood-lagging pmposal as part of its bid deposit. As
J, .id -tl V I. iJ r i'J:. Bch-abel bid,the District may not enforce its bid documents against
bd„astorwooclshoring,notstcel.
f c J in its Bid Analysis Sheet 03 escrowed with its bid documents. The
n,a bay a<ed b. 3:Ji�r Ts", 'ncra is exclusive ofmovement monitoring and bond so it reflects a true
cs-al'. mid.
Ms.Natasha K. Dubrovski
October 5, 2012
Page 6 of I 1
shoring. In mhenNw,ds. the single reason WML submitted a lower price than Balfour
Rea: �i; �aiUl[Lc:�ia:cd from the requirements of the Bid Documents and accepted
schnabcl =_ prep:',] to sc�,cic.ae the shoring system.
_ . CmIra^:'a. I.ass Precludes Acceptance Of
VAI: s 13i J 3ecause Of The Shoring Substitution
a. s., n c,.x- Of Competitive Bidding Law
a rsporsi,c HJ is cr_c that conforms to the project specifications. (Konica
v. The Regents ofhe University ofCalifarnia(1988)206
C al.a^p a d --9. III 1i�n; ca Business Machines,the California Court of Appeal
scrai_cdy s:,ccd cce corsegccrces of filing a non-responsive bid:
a has:c -.Lc of competitive bidding is that bids must conform to
spcci5cacons, and that if a bid does not so conform, it may not be
ar;crtcc
:1l at p The Court outlined a narrow exception to this general
r.(x. :-.ohlinc .I c,.-i ir.. - hiJ irregularities may be waived only where the defect: (1)
haI: a-]ee:-- th- :r))''Lint of the bid;"and(2) the defect cannot have resulted in
ar ads .n , . >r ben_` t .i : ,]:owed other bidders." (Ibid) Further,the Courtstated:
::rtial for abuse arising from deviations from strict
ac`ierena� I-1.1ni- which promote these public benefits, the letting of
:r'.i,.rsally receives close Judicial senrtinv and contracts
rcir��J c.i-.__out strict compliance with bidding requirements will be set
:rile.
s s
I I in.-.-. Lance of maintaining integrity in government and the ease with
I,. I<f.-.cp goals underlying the requirement for open competitive
I),, -c s1. -ertitiously undercut, mandate strict compliance with
h.ddln_ -^c-Lifrznzns.
emnSasis added;seealso Valley Crest Landscape, Inc. v. City
C-:, 7 ; 996)41 CalApp.4th 1432, 1440.)
:1F p r. 11z LI[-—e p-f nciples,the Konica Court Wiled that an alternative bid,one
at ,l: ,. , tt-re,:- :han what is specified,may not be accepted. In that case,
::I e t ni s c " c f C, t in I f_i l-lished a Request For Proposals seeking offers to supply
copy machirr- ['sfcre,ancecapabilities. (Konica Business Machines,
,;'T u. _",. t.,l._\cp.`J -! a[. - -+J3.) The low bidder offered copy machines that met
I ns I-m :ell short of others. (/bid) The Court held thatthe bidder
t _ sCai I n- i r ;h c alternative bid,which Califomia law precluded the
n:t, In -1 1 fl_ 4l at pp.455456.) As detailed below,California Law
n z,,opting WML's bid far the same reasons.
t )'. A I Ri d Does Not Conform To The District's
S fz,i:_,ations And Is Therefore Non-Responsive
J :rat S:n: core clearly expressed the requirement that bidders
;upa? -h, r_r:_ .,.. _n -other than a wooden system. The Project plan sheets
V- t 1, t I s}stem (see e.g.,Tab 5)and the Project Specifications
ou:lir i Ps,is: r.-, :r:a_ ie n.,tallation requirements(See Tab 6). In response to
a:Jder-- .p.:«I ;r. the D_;irie: reinforced the steel shoring requirement. (Tab 7.) There
-na: :, J_;ou- th- Bit _),,uments mandated the steel shoring system.
t.r_ , w a_s e ,t o J-spute that WML's bid deviated from those requirements.
'�i J -ui-,t t uzd a �ood shoring system and offered to perform the work at a
:: � 7 -i 11 i o fl I'ab 11,p. 1.) WML listed Schnabel on the face of its bid
xrt, i n r_t1 <r i i ,ar for$1.6 million. (Tab 10.) Schnabel does not sell or
t,-J = _J ,t, 11, , ,tom,. Finally, WML's escrowed bid documents confirm its bid
-.ndcJ:< dh r.'. 1i ::ooden shoring.' Summarily, WML's bid deviated from the
Hit 1), dh-i : xenon-responsiveand must be rejected.
C ._12rn_a Law Precludes The District From
-,i The Defects In WML's Non-Responsive Bid
JeaI- '.re District could only waive WML's bid deviation if the
I-, i n- t_n <,I-, i .i could not have affected WML's price or given WML an
.� ..n - �<i t 1'1 , i �h %\a, not afforded to bidders who complied with the Bid
�) t.11_., J TW—ion ofthecheaper shoring system offered by Schnabel
a_rated A \11_ u':,,tar.:ia_', lower itsprice. Conversely,Balfour Beatty's bid price
SJg-_ hi-Ki fIar it would have been had Balfour Beattyaccepted
S,Lnah, : pc p, s d zr.J o[sr,d the District wood instead of steel. Asa result,WML's
d,,iatofl T w, tat <,-Cu.atons resulted in an advantage or benefit which was not
,-;o,--� AAVlL comp,:i-.or,. Accordingly,California law precludes the District from
„aicSm• )CVOsh14 Jedatiur.
di sc I e,,do not contain and incorporate the Schnabel bid,than they are
'rt��xdaia. Asare-clt %,\I:_nrc'.d nor be eligible to be awarded the contract. (Tab4,pp.6-9,Special
T c � . i)ri -, i of complete Escrow Bid Documents ism essential element of the
3ldce=+-:=pors:Neness anon to Contract Award!]) This provision illustrates the District
ti,c cscrcweddocurrsr-s pre-award.
\L ynu.L.: ti Ucbn,.rkl
I en i-i he D1 t n_-ic] to require WML to install the steel shoring, WML would
—c :i , i[,- :ire ad vantage over the others bidders based on the fact that
>.h r.z I] cct b'.1 :a' c e r::c not install the steel shoring system. WML would have
th I'I':r"-litit 'U"t tre �chnabel off the Project pursuant to Public Contract Code
vef. r -1 21 I-id—h I- the shoring work to other subcontractors with the post-award
_e'.,r. __ r l-<i.:tr_ 1-..n awarded thejob. The ability to bid-shop post-bid is a
i i .� -r.0 i-n;t .:ing finding WML's bid non-responsive,and also contrary
t,, t]-.c .�iq-, ,i O:e S h'.etting and Subcontracting Fair Practices Act,Public Contract
D. Che Rid Documents Require The
I)'.s:, c t )u Review Schoabel's Proposal To WML
C`ili riia :z.. .cccii.- public entities to enforce and follow the riles and
i:'r 1 th.ir bl c documents. (Pozarv. Department ofTransporation
tie.:_r,gyp 'r,, [',..dder was entitled to writ of mandate based on public
i i—� i ,rcn bid documents].) Here,the Bid Documents provide
:Sat )er ar ro-::i rr) escrow complete copies of all estimating documents as a
n.i;t;- niccc-t rr, ,l the Project. (Tab 4,p.6.) Because WML listed
11:J Jc r i t� a' a i to ,: it, subcontractor, the District has the ability and duty to
c.t,rnti _ ,.nth '- %I se a-ed Schnabel's proposal to WML. If WML failed to
,.,,i. tht >e`. , -I1-i,, ,I WML did not meet the mandatory condition precedent to
r zr.i it i 1:of L -,J the Project,regardless of whether the District considers
". \I I.'s h. [. b- re'pon-:�e. (Id.) Failure to verify the escrow requirement by opening
the subs: -ic:t - ii be a violation of the District's own Bid Documents.
F. l Se District Cannot Enforce The Bid
I)eC,�ments Steel Shoring Requirement Against
Recause It Knows WML Proposed Wood Shorne
Calif, ' zrc ni _:yes the District from accepting a bid and enforcing its bid
docume�t� z_zir.�t a b'.�.io: rr here the District knows,prior to award,that the bid contains
a nt_st-�:.. Inglewood Unified School Dist. (2004) 114 Cal.App.4th
'e Scol district owner received bids fora project,all of which
escce,A :L, _;)_cl. The district knew the low bidder onthe project
rot=-z er 1 I_.i ., ri-L.c. tl, plumbing scope of work,causing the bid to be
it (Id. at p. 1020.) The district nonetheless accepted the erroneously
Sr.abh P.?71. =L: 1 �r-- -tractor,Schrabel,without confirming it can perform the specified
sr R V_ r k ,- of the responsibility standard set forth in Public Contract Code section
A r't i t s::ons To Bidder. (Tab 2,p.7.) A contractor cannot be considered a
"responsi file" mmractor alter I'.stairs a subcontractor that is incapable of performing the specified work
on a project of the size anc romp \i'.p of the Project.
;hs PaIc't .ki
Ps_a�t ,
„ _ .c srJ a::ar nrec r�� 'orce, the bidder to perform the project at its artificially low bid
Fria Iad';tracur:ended the bidder most perform the project as specified
Lo -,Ill i,i a C Ion of Appeal disagreed,holding the district was estopped from
rz1.•. tL h-alder t.. -. 'orr-. :he work as specified because the district knew about the
-.r. d,r J it i I srcine the contract. (See also,M F. Kemper Conn. Co. v. City
, I " I -- C s_._d 696,702-703 [holding the City could not enforce a bid
_ t t:ci to_ I+hei tcz City knew the contractor's bid contained an error making
thol-id ccec;cs-r_ cl car]y supports the conclusion that it would be
,c'.rI-:de cold :ie co:noar, to its bid at die mistaken figure....it appears that it
._c I' I'_ist and unfair to pennu the City to take advantage of the company's
t hz the owners in the cited authority,the District now knows that WML's bid
-;- ...e fcll scope n ltheproject; it is farwood not steel shoring. Assuch,if
Vt U- r t^ rJ;d z Pr.�'id,t the District could not insist WML instep the steel
di ri:-; it .i_t i _tr-.n_ WML a change order to cover the additional cost of that
<:-11 a� J,t_ Ida]- - :!-;rot cost would exceed$2 million,meaning that WML would
i i n _k I - :i �I it :on more than Balfour Beatty's lowest responsive bid to
r, frcth,,, reasons, WML has an unfair competitive advantage in that it
r r`e r a nr.s c`, deviating from the bid requirements. Consequently,
ec :r_da writ of mandate would set aside any award of the
Pro':ct r A ',I i 21 r,mess Machines USA., Inc. v. The Regents ojthe
C nlvereuy of t- 306 Cal.App.3d 449.)
} A \I I ==_Deviation Appears On The Face Of The Bid
0:e n E i l', th- F: ;ti on that WML's bid may be considered responsive
because 'A V11 dcc: ;tn ctc!ion did not appear"on the face of the bid." That
stn_eniit -ac-,it iasdu .oni,�n '_D.K Williams Const, Inc. v. Clovis Unified School
(-al J 1 _d 7. -1here,a school district rejected a bid as non-
resr�msi•.v bsat:« the Jer inadvertently listed a subcontractor that was not licensed
r;;c i.r s license defect did not appear on the face of the bid-the
.)i- ,tI iIlmer .i i %rn research into the subcontractor's license status. The
rod cne� 1-1 d�,r i 1_1 i '.arm a:i: challenging the determination that the subcontractor
license defect rendered i:; b'.c non-responsive.
The court held :cat '.ite bid was,in fact,responsive because neither the bid
documents nor Calif.,rn;a prohibited bidders from listing subcontractors that were not
-,,I :it [',I I I i:,,, tr a id was technically responsive,the court surmised that it
,,I, f the district found,after a hearing,that the bidder was not
i e.. Iscked the fitness,quality and capacity to perform the work),based on
V6. A.: >La IAI ski
r I '.
t!-a 'an flat :. dr. I i,- an unlicensed subcontractor. Since the school district never
_lz_J a ran-11--ins n,,:r_that issue,the court held the rejection of the bid was
i r.ihr ?:r
-:ae LIT '-: try and liken WML's shoring system deviation to the subcontractor
:cur n /r : If'., -r. :on tending that neither defect was apparent"on the face
,'11-eIhd m .c::Ser defect coa:d render the bid non-responsive. Thatargumentis
ii-tL r- n-a,it.
Ii re'.. the bid in D.H Williams was held to be responsive because there simply
, i;-- re-icr III "srec subcontractors be licensed The court's holding and
ri. 1) I: lid m. t J-r'or.J ::t .it, way on whether the defect appeared on the face of the
hiJ. lsi, r:ol;. tho Di lln,.:ments in this case: (1)expressly required bidders to
11ec_ sL,ri n_ _r x_n-: and(2)prohibited bidders from submittingaltemativeor
Ja.it- b'Js. t'. VI S hj iniated both aspects of the Bid Documents.
does not hold that responsiveness must be determined
fit'it- 1 he Lac or it h1J. Rather,the court stated that"in the usual case,the
de t c•. :hlt a 1) ,,esponsive is not based on disputed facts,does not involve
LIE I,IT -::_ c , ci=.-ot -l. and does not require a hearing for the excluded bidder."
fld _ -c4. 1 Li'id,r rg< i,i
kility,on the other hand,"is a complex matter dependent,
o R. ' ,it it' u_tC.n i r: _.I outside the bidding process and requiring,in many cases,
an ahFIT,,,1,n . I uJ -lent" (Ld) Thus,the responsiveness/responsibility,
dis-i,tcr,:- J:re.tc> ,I) r hc.':r the determinarion is based on disputed facts requiring
favEr J-.n_ J-, Lit , zn,tir'l:r. matter. In WML's case,there are no disputed facts.
ScF.:iah_I 7,rc9t 1, ,v:de the cheaper and disallowed wood shoring system.
VA V 1.'; hi,i al.t to �ch:abel and WML, in order to be considered for award,filed -
a core of Sal-nzbel s r •,- Ala ith the District in its escrowed bid documents. Since
then -T. no disputcc thcre is no need forthe District to apply"subtle judgment."
N'ML's bid defect renders WML's bid non-responsive order D.H.
It
I lirc. if 1) ,� if?.'Hams held that responsiveness most be evaluated based
I 1 t t rrn=i an L i t r !,c bid(which it did not),WML's bid would still be non-
=ps IL A ,Loring deviation is apparent on the face of WML's bid.
'A AIL Ii,iaJ �,111 Fc 11, h id form as its shoring subcontractor. Based onthe
u:-ci_:,Ll Set t3. 1nahal "id not offer to provide the specified steel shoring system,
P. L[L-, 41 c '.> n rt--c—,,j =ir_. Moreover,WML's escrowed bid documents,which
al, are essential bid documents that bidders were required
<tian-i t h, c.l t t. ?r,rject. Those documents are part of WML's bid- WML
r _'-et without submitting them.
�r_-ur�:'I.. �:•. n:nt that WML's bid was responsive because the deviation
tr e-i Bel t n.i J ::,'. ,ppear on the face of the bid is without merit because: (1)the
Ms.Natasha K. Dubrovski
October 5,2012
Page 11 of 11
defect is apparent on the face of the bid;and(2)even if it had not appeared on the face of
the bid,the defect renders the bid non-responsive because it is based on undisputed facts.
4. Conclusion
\1?11 cas the araarert low bidder on the Project solely because it deviated from
tht1) -_ t i:ca_nr.; aid submitted a bid offering to perform something different
J-.:o •t hcr. th. F3 D,�.r,r.nt, required. Balfour Beatty complied with the Bid
Lj-e i i r.nt,. \\-\I I_ < F-.- i, �n-responsive because it ignored the District's clear
t I Irea_nr V ". i-id the requirement for a steel shoring system rather than a
e:rar.r tt: r :•s:e,r.. I r Di strict is now aware of the deviation in WML's bid and
canr t regc is 'A ',11 -: i:-a.t__ the more costly steel shoring without paying WML more
n- n.t . A ` I ; n -, ,e bid afforded WML an unfair competitive advantage
tt h.il- t " a_-A - � iuur Beatty requests the District reject WML'snon-
hi� LJA �ctrc Ix Project to Balfour Beatty. We request copies ofall
11 . b.-tt..nth: District and WML concerning this protest and notice ofany
nc<rni:-_ (IL a4.oit issues. Thank you for your consideration.
Very tru ours,
�Po p •mc Jr.,o
MARKS,FINCH,
THORNTON&BAIRD, LLP
kr
P.tni: , ion District
_,...- Ab:. 3c:J.<•. R. Hogin,Legal Counsel
>Ii I r Herbc Assistant General Manager&Director of Engineering
%h Jitr. P( d . General Manager
-.ti cr Bspur In:1 ,i icture, Inc. -Fairfield, CA(via e-mail only)
-utn. AIr i 11,1-11 Pates, Vice President Western Region
' fi Din Dischner, Chief Estimator
MARES,PINCH,THORNTON & BAIRD,LLP
ROBERT J. MARKS, APO F ATTORNEYS AT LAW JON F. GAUTHIER. APO
P. RAN DOLPH FINCH JR. 4747 EXECUTIVE DRIVE — SUITE 700 DANIELLE C. HUMPHRIES
JABON R. THORNTON 8AN DIE00 CALIFORNIA 92121.3107 CHRISTOPHER R. BILLARI
JEFFREY S ,. BAIRDDUSTIN R. JONES
CHAD T. WISHCHUK TELEPHONE (SSB) 737-3100 LAURA B. MACNEEL
LOUIS J. BLUM FACSIMILE (BEE) 737.3101 RODRI00 F. MO
REIRA
DAVID S. DEMIAN DANICL /. SCXOLZ
STEPHEN J. SCHULTZ • INTERNET www.m110.cam RYAN P. KENNEDY
MARK T. SENNETT • E-MAIL pflnch®m11D.com ARAM C. WITT
DAVID W. SMILEY BETT T. WALKER
BERNARD F. KING III M. KATY ROSS
NOWELL A. LANTZ M. BTOOER October 12,2012 J. PATRICN HICKS
JUSTIIN
ALLISON N. COOPER • OF COUNSEL
ANDREA L. PETRAY
OUR FILE NUMBER
• OF COUNSEL r1B MERRILL,
SCHULTZ S SENNETT, LTD. 1439.001
SUPPLEMENTAL BID PROTEST
VIA ELECTRONIC MAIL
Ms.Natasha K. Dubrovski
Principal Contracts Administrator
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley,California 92708
construction@ocsd.com
Re: Entity: Orange County Sanitation District
Project: Sludge Dewatering And
Odor Control At Plant No. I
Project NO: PI-101
Non-Responsive Bidder: W. M. Lyles Company
Lowest Responsive Bidder: Balfour Beatty Infrastructure, Inc.
Dear Ms. Dubrovski:
This supplements the bid protest on the above referenced project filed by Balfour
Beatty on October 5,2012. The purpose of this supplement is to identify newly-disclosed
public bidding records for OCSD's consideration. These newly-disclosed records
confirm OCSD should not, and cannot, accept WML's flawed,non-responsive and
artificially low bid for the project.
Enclosed at Tab 1 is an e-mail from WML project manager,Matt Cain,to OCSD
dated July 19,2012,three weeks before the bid deadline. Mr. Cain transmitted WML's
cumulative list of 70 pre-bid questions, including two questions at the bottom of that list
which WML had highlighted for OCSD's consideration. OCSD ultimately labeled one of
the two highlighted questions as Question No.27,which asked OCSD to agree that
bidders were not required to bid and install the specified steel shoring system. As
detailed in Balfour Beatty's October 5, 2012 bid protest,OCSD's answer to that question
unambiguously instructed bidders to bid and install the steel shoring system, i.e., bid
according to OCSD's plans and specifications.
The WML e-mail at Tab 1 confirms that WML did more than negligently deviate
from OCSD's instructions to provide steel and not wood. WML: (1)identified an
opportunity to cut its costs and gain a competitive advantage; (2)asked OCSD to
Ms.Natasha K. Dubrovski
October 12,2012
Page 2 of 2
acquiesce to its shoring substitution; (3)received OCSD's denial of that request; and(4)
substituted the shoring system anyway. WML did not just miss the steel shoring
requirement while estimating the work—WML consciously ignored OCSD's requirement
for steel in order to achieve a competitive advantage which is prohibited under California
law. (Konica Business Machines USA. Inc. v. Regents of University of California
(1988)206 Ca1.App.3d 449,454 ["A basic rule of competitive bidding is that bids must
conform to specifications,and that if a bid does not so conform, it may not be
accepted."].)
As detailed in Balfour Beatty's October 5,2012 protest,use of wood instead of
steel resulted in WML's competitive advantage. The newly disclosed documents confirm
WML created an even more lopsided playing field. By submitting its question and
eliciting a published answer which it ultimately ignored, WML made certain that none of
its competitors would make the same illicit shoring substitution. In other words, WML
made sure that it was the only bidder that enjoyed the more than $2 million savings on
bid day. OCSD should not condone and encourage the circumventing of its instructions
and California public bidding law. The project should be awarded to Balfour Beatty
Infrastructure, Inc., the lowest responsive and responsible bidder. Thank you.
Very truly yours,
P.Randolph Finch Jr., of
MARKS,FINCH,
THORNTON&BAIRD, LLP
Enclosures
DRJ:kam/3418762
cc: Orange County Sanitation District
Attn: Mr. Bradley R. Hogin, Legal Counsel
Mr. Jim Herberg,Assistant General Manager& Director of Engineering
Mr. Jim Ruth, General Manager
Balfour Beatty Infrastructure, Inc. -Fairfield,CA (via e-mail only)
Attn: Mr.Crandall Bates, Vice President Western Region
Mr. Dan Dischner, Chief Estimator
MARKS, FINCH,THORNTON & BAIRD,LLP
ROBERT J. MARKS. BPC • ATTORNEYS AT LAW JON F. GAUTHIER, APC
P. RANDOLPH FINCH JR. /747 EXECUTIVE DRIVE - SUITE TOD DANIELLE C. HUMPHRIES
JASON R. THORNTON CHRISTOPHER R. SILLARI
JEFFREY B. BAIRD SAN DIEGO, CALIFORNIA 92121-3107 DUSTIN R. JONES
CHAD T. WISHCHUK TELEPHONE (058) 737-3100 LAURA B. MACNEEL
LOUIS J. BLUM RODRIGO F MOREIRA
DAVID S. DEMIAN FACSIMILE (858) 737-3101 DANIEL P. SCHOLZ
STEPHEN l- SCHULTZ INTERNET www.ninb-OOm RYAN P. KENNEDY
MARK T. BENNETT v E-MAIL DLIn Cb�mUb.COm ADAM C. WITT
DAVID W. SMILEY BRETT T. WALKER
BERNARD F. KING III M KATY ROSS
NOWELL A. LANTZ J. PATRICK HICKS
JUSTIN M. STOGER October 30,2012
ALLISON N. COOPER ♦ OF COUNSEL
ANDREA L PETRAY
OUR FILE NUMBER
♦ OF COUNSEL v e MERRILL.
SCHULTZ S BENNETT, LTD. 1439.001
SUPPLEMENTAL BID PROTEST
VL4 ELECTRONIC MAIL
\ts. \atastis h. Dctiro�_l;
Pr tc_1 .1 L i t-i,tz t Isis-itor
h-n_ct "i-i . 1 II1) '[1Ct
I \__ [. to ..cr uc
Re. '-miry: Orange County Sanitation District
Project., Sludge Dewatering And
Odor Control At Plant No. I
Project No.: -PI-101
l-nn-Remnn,ire Bidder: W. M Lyles Company
,wire Bidder: Balfour Beatty Infrastructure Inc.
I7c- A':. IJ 1;-m•.ski:
lncc...c_ion
eh_J� i ts -.quiresfimdamental fairness and a level playing field. The
_I1:cJ ti% B.1iour Bcaa}"s bid protest and WML's response are:
I i does OCSD want the pemtanent steel shoring that Balfour Beatty read the
dec uments to require, or is OCSD satisfied with the cheaper wood shoring
_c b:, ':`. \11.. ch WML contends is allowed;and
_ i'L-�C _) -it, ied with the cheaper wood,did it provide a level playing
Iie IJ i Fic ,r mislead them with pre-bid Question and Answer 27 such
VI, ha K. Dubrovski
-ti. 2012
ct-
_ c i rth h lorc. OCSD ccnnol reasonably or fairly answer these questions so as to
1: to WML. Balfour Beatty should be awarded the project
'012 letter stated OCSD lacked the necessary information to
t --i Ar. A J L u F-.i l.1 eJ .::'reaper shoring system in its bid for the above referenced
ha iac. 12F I 1) c —c.uded it could not declare WML's bid non-responsive
r' V I L - .-crowed documents,and could not"speculate"as to how
V� VLF brli„_ca -1 ' L,_-cr iewing those documents. WML has since admitted it
,L,a=-i:LR J to ' n_ ma r in its October 11,2012 opposition to Balfour Beatty's
--t. F _ -A I ., ithout its enclosures.) WML's opposition to the bid protest
s hrt 'tS: F'J ;in:-a- :nJ. under California law,must be considered in evaluating the
re,I- n-i,en-- I At AII_ - iic. It is now undisputed that WML's bid substituted
t-n ',:-.ri - _-n_1 t -, permanent steel shoring was required. As such,even
f Ct �_. » Jocumentation, WML's bid is non-responsive and must be
I) d t,I J r, the project to Balfour Beatty as the lowest responsive
FJ, 1 FiJ -i „ achieve a level playing field.
t,-\'L L `..\ rv.:r. - The Bid Documents
maounicdh Required Permanent Steel Shoring
A `.IL admits it bid the project using temporary wood shoring, but nonetheless
ont-rd? its hid is responsive because the bid documents did not call for permanent
Ilt- .rr_❑non.- I, nx-iless. OCSD clearly called for permanent shoring to
. > :ti i:, I existing facility. Those areas and the relevant bid
xn:- A cet:-_.J Fe' .
iS<ations 01772 And 02361,Plan Sheets C1-7006
�'-1001,And Question And Answer 27 Clearly
\1[ut_9[ttc;1 Bidders Submit Bids Covering Permanent Steel Shoring
t h:ee e1'<_t:ne tr.r.ores on the project are decades old and easily damaged,such
:i.ct OCSI7 rar.Ccd blcLr, :,, protect those structures with permanent steel shoring. The
:r:atres -ra. �hich was built in 1964 and is not supported on piles; (2)
T-i:sh :rie:,_ina alter -if cent pipe("TFE Pipe');and(3) Digesters 9 and 10,which
:.:e h.c:t ir. 1979 and arc also not supported on piles.
yI, NI-I>11K o-hro,. _
OCto_"er -: . "I—
� u_ncI l - anJ lLe TI'E Pipe are set forth in Plan Sheet Cl-7006. (See Tab 3.)
Tis dr.��iag ircl-:a , Notes � & 6 which directs bidders to protect those components
I%:itit Shari^ pursaant to Specification 01772,PROTECTION OF ADJACENT
COAS110 CTION:
5. P TCT NWrFl t] ALONG In"Mc IF Tl.
5EE SPCCtrI rM SECM 0172Z MOTEM N
RO CWT cDNs. enp1 FM
RLW.N 04n MO iMAMM c£ SlMPo ..
G. PROxG! 1XE ]S ReP ITS RK MMO In
EME tu,GIH. SG SP"cOfiCAnM SECI.M
00"S RVCnOtM1 FM iSpI MTS ANO
vxnnoN a ss�n,Na
_1 tLi-J :°..eJ'[_ per:n zr ent protection is around Digesters 9 and 10,and is set forth
r,n P dI h— �'_'.�.^ _ 1 ea I ab 4.) It details Tunnel 29 which is to be constructed
�e ut at I) o,ror y .,� hat drawing also includes a note instructing bidders to
ra%1Je pa;Cs:t e:is r.n> I _,ccordance with the PROTECTION OF ADJACENT
COAST RLCIION sic,ulcsi on.
`rcc'hc :ion I PROTECTION OF ADJACENT CONSTRUCTION,is
en c , ,I t 1 a h g I' i:-c'. separated subsections concerning each of the three above
=si%J ti I cu I-a, L'I �u Psection requires the areas be protected by shoring that is to
he left in Eha i z.. t-- s-,_ring is permanent).' OCSD clearly stated its reasons for
I e,..a11: _ P- r-❑era 1h I I ithin Specification 01722. With respect to Tunnel 17,
I 1) 1,d1 -i Jai, : .n nine 1 'nel was 58 years old and instructed bidders to"use caution
J nr'::_ . I , .:;:iI,ii Ie I :des to avoid damage to Tunnel 17." (Tab 5,section 3.4
B _ `.t`th r.,;;c , l trn,129 and Digesters 9 and 10,OCSD stated,"The District is
o: n -1 -c a^-ojt potential d:c:rage to the digesters." (Tab 5,section 3.4 (D)(1).)
':? S'Je the above desc-i red drawings and Specification 01722 identify where and
ca panmrnt shori:_� I,as required, Specification 02361, STEEL SHEET PILING
_zF 1at,. ac tS; tape of permanent shoring to be installed. Specification
eta.. -:' [l 1 1—Ph:
1 er . , ,_r.l% materials and installation of permanent hot-rolled
h, l-_ ir,L� edandleftin Platte as part of the steel sheet piling
1e t c I._ J laic,—thc Shoring system installed parallel to Tunnel 17 shall be left in place."
u. I _:s I I- ,;tem protecting TFE Pipe"shall be left in place." Section 3.4(D$3)
_,.:"'I nc shorn_ ..--ern installed along Tunnel 29 shall be left in place"to protect Digesters 9 and to_
VL. Acr1-S.t ti. ) hr, r s3!
�JJLr
i I the building basement and tunnels and as
I _ ti r. _ it Ior pipelines and existing structures as indicated on the
Dr,ii_-
_ _ ,.. emphasis added.) Specification 02361 expressly applies to
[I '_< I:r protect"tunnels,""pipelines"and"existing structures.-
It that protects Tunnel 17,the TFE Pipes,and Digesters 9
r.J I
ter. s I_,itczr hie I_,aen uncertain whether the steel sheet shoring in
i i ' I I;, Installed to protect Tunnel 17,the TFE Pipes and Digesters
n� I I D it, .eI Question 27 eliminated all uncertainty. It very clearly stated
Saelt tle_=ian �. ,,,.1 iJen Clie� the type of shoring to be installed in those areas—"STEEL
Tab 7.)
ern-:mar- �r.:•.cines C1-7006 and S24001,Specifications 01722 and 03361,
,.ni (�C• e- to Q r c st'on 27,consistently and clearly require permanent steel
,h=. rtae to protect T urmel 17,the TFE pipes,and Digesters 9 and 10.
B. WML's Contention That Steel
Shorin_ Was Not Required Is Meritless
VA"V1T_ contends O( SF) did not require permanent shoring because the general
..uIt: �[,,� t'e_-i nr_ ]Li-,s the contractor to remove all temporary wood shoring
p❑, e, I_aa _,r__anent is meridess because the project requires both
naoran ors Teens::pt sharing. The fact that the general earthwork specification
rc. .:i1- _ n i, }-sl -ii._ t,, be removed does not negate the requirement to install
norm.neptd r.n_ , aI t—t-he above described areas. In other words,the earthwork
_ za f cation does no ,a:IT I, kith or undermine the steel shoring requirements to protect
a'.ng structures.
V oreocer. ,ar I General earthwork specification conflicted with the steel
t • ocld rot trump the specific drawings,specifications,and
�LKC1,C JI_J- I), err.hicl'. a�pressly call for permanent steel shoring. (Code Civ.Proe.,
r 1; 1,_elf, , l-,tnrequirementsttumpgeneralspecifications].) Assuch,
q \I L ._r t to i t :h_u the -,cncral earthwork specification negates the steel shoring
It) �!.c :, :_n.-,t tl"\ti argues that even if steel shoring were required in the
`Ac endum 3 changed the shoring to temporary wood
\k. A;a;:,ha :�. lluh:ocslC
Oatobz- ;i7- �L1,
inc rcrlui:cr, nt that a concrete wall be poured against the shoring in
I _n i, -. - Ch: s_u re :, is,, ,cnhoul merit. First,Addendum 3 affected just one of
:h� thr.�.� , :_a= read-ir._ ,t,,1shoring—Tunnell7. Modification of one area certainly
J I J :"r. �_u_-iiru_ th� t--. shoring requirement in the other two. Second, and more
r,-c 1,n_ \-3encuci " I2eCt'sally left in the requirement that the Tunnel 17 shoring
n -_ "e'1 i, I see " I-et- 5, section 3.4(13)(3).) In other words,the removal of the
regcec_tan: to Cocr the mall against the shoring is irrelevant to whether steel shoring was
u^.imarily, bocc e'R MU s arguments that steel shoring was not required are
pa.cnt'p ta�sc.
3. WML Confirmed That Its Bid Was
Noon-Responsive In Its Onoosition To Balfour Beatty's Protest
OCSD J<d _n its letter at Tab 1 that it could not determine WML's bid to
.t : ing on the escrow documents. The conclusion is based on
Ir. n:t __i th� earn .t dtc.:ments cannot be considered because they are"information
r_ ec o.11>iJe i ilia h:.l.i i:: process,"which the Court in D.H. Williams Construction
ics l_ rt of t're responsiveness inquiry. (SeeD.H Williams Const_, Inc. v.
" ;>r ,) ,,. i_007) 146Cal.AppAth757, 764 [generally issues requiring
.�,-i_ 't O LA, t e t'riding process fall under the"responsibility"requirement,
I- r. mthatthe escrow documents may not be considered,OCSD
•.i r.>t nJ a .A v h J ;, non-responsive because WML admitted in its opposition
R d. , r �3 . -t Pr c,t h tits bid is based on temporary wood shoring. (See Tab 2.)
-at :1' ,i i i "_ F 'r J to OCSD within"rime bidding process." Accordingly,
' r it 1 1" c-oice of shoring system can and must be considered by
�� 1J <_r h. l\ - JCng substitution is an"undisputed fact"which directly
-_-�r. the 1,, :nsi.unc'ts bid. (D.H Williams Const., Inc. v. Clovis Unified
i ) I ..I .',pp.4th at p.764 r'In the usual case,the determination that
FIJI i> ca � i� i _�[ eased on disputed facts."].)
U \11 z_n i -."I cro :t did not promise to do what the bidding instructions
_pi .> .rxh. us hu is non-responsive. (Valley Crest Landscape, Inc. v_ City
2.__.. a-u, J �_. App.4th 1432, 1438.)
\1,. Satasha K. Dubrovski
OatoJer 30,2012
'a-, 6of7
4. WML's Bid Defect May Not Be Waived
W',11 cites Kmtica Lizsiness Machines USA., Inc. v. Regents ofUniversityof
I a S! 7 ( . _1� p3d 449,in support of its request that OCSD waive its bid
'11 ITI n wz n=_'J I MM I. In fact, WML's bid deviation was anything but
n, i,:q u<r tip_. _isr i, ant be waived. California law precludes waiver of any bid
._t i, ,F t <rJ J i c _tI ected the bid price or given the bidder an advantage or
1,t fi :rt _'._r-..oc t�, nLe-i:ors. (valley Crest Landscape, Inc. v. City Council, supra,
L.Jih _n c. 1-4_ \':ML's shoring substitution did both. WML does not
i tc a 1 <,stem is cheaper than permanent steel. As such,the
l tl-. <_ dl have affected WML's price and afforded WML an
\\ %1I_ czni t this rule by contending the permanent shoring was required
is , i stt rrt<. I ,- n_µtirc is whether the deviation could have affected price or
:i oir_ nr benefit not allowed to the other bidders—the extent of
ii 's irrelevant.
tI- ii,� -in eWML's undisputed bid deviation based on WML's
p -PiJ a r n I n,n= t�, i:i tI I the required shoring system. The advantage enjoyed by
`1 ' ll i J n c i. ia lc reactively erased by WML's post-bid agreement.
t:J s r. rrr d c_ir \c VI s bid day advantage precludes OCSD from waiving the
o- 1 h: Proiect Avoids Claims And Litigation
P3 ut :nJ A`, A11, framed the issues for OCSD: (1)did OCSD's bid
documents i_ t:i rr =too. �L, i and(2)if not, did OCSD create an unleveled playing
field by J i i \`. %1 I r,:r:netitors to believe steel shoring was required? As detailed
above. the rs1'_r tc t h: tl_s: c aestion is yes—steel shoring was required and,as a result,
the rm-. I ri i I I' . „ d to WML. If OCSD engineering now decides to accept
xw,d =' nr_ry 'Li , _ii I.. unleveled the playing field by telling WML's competition
that StecI s._nrir_ �::_> �CTIn ia1 I through the above-described plans and specifications and
the :_nstter u , :.: eithercase, award to WML would be set aside via writ of
�r,tchines USA. Inc. v. Regents of University of California,
Ti,< s-tic: c..n a•,n a writ of mandate by rejecting all bids. (Kajima/Ray
. .t/etropolitan Tramp. Authority(2000)23 CalAth 305, 315
ii'.ld ut has ab„) utc ui,cretion to reject all bids].) In addition,the District
V< Aztz�1, 1, 1)-Ti—,6.i
i i i],, t 1 1'-oj ect by more than$24 million due to price inflation by
I r I I)istrict elects to re-bid,the District could broaden the
tr, include"equal"suppliers. Balfour Beatty will to work
� i h i h- I L,t l a ;1 t_ the i<Tid to identify the alternative products/suppliers that will
1, -- the I'i. i�a th- aving$20 million of District funds. Pursuant to Public
air,r..o t <. i. r. '_ the District could accept a second round of bids for the
u ,- _•.c-tising anew bid deadline. In other words, the District
nu t -.,l -«ard the Project in under a month.
- .. urti,_ 1z���.c5. . :actthat WML bid wood and not steel is undisputed.
:,erform-any outside investigation or apply subtle judgment
c �1<pu=-.1 ua> _u <i Je th_ bid process. The only issue is whether OCSD required steel
I A' 'd con-responsive and must be rejected. If not, WML'sbid
r�i ,. d also be the result of an unleveled playing field. If OCSD
• i, _i:,e . i ,n I Ten it should reject all and re-bid to allow a level playing
Iicld. The prc , -5w he awarded to Balfour Beatty as the lowest responsive bidder,
or put out for rc--i i.
Very truly yours,
1'. Rail
Partner of
MARKS,FINCH,
THORNTON&BAIRD, LLP
F'&P 6..1:-1 41
tlar_� t o-:n=, �,n ut'.on District
v tr ?1 h' , I R !login, Legal Counsel
\I t 1 i-n . Assistant General Manager& Director of Engineering
I_. I I n It- i tieneral Manager
B_I fntc 3 c `.,E"-t-ceture,Inc. -Fairfield, CA(via e-mail only)
\Ir. i :,it Hates,Vice President Western Region
VI_. I)-in It -zner, Chief Estimator
DOWLING I AARON
I N C O R P O R A T E D
ATTORNEYS AND COUNSELORS AT LAW
RGPONk,dhl` m
RlYtliba
Re9W.CA 9371I October 11, 2012
R 5`AA32tW
F.SW.[RASW
WRIIfRs F-MAIL:
File No. 14946-000
WCHAEL D.DOWLING VIA E-MAIL(construction@ocsd.com)
RICHARD M.AARON
DAWDI.VJUTACHISST .B AND FACSIMILE (714)593-7779
DAMID T WER A.BROWN
MICHAEL 1.HOGAN
DANIELK-KDNGENSERGER
IARRY S.UNDENAU Ms.Natasha K. Dubrovski
RONALD A.HENDERSON
DONALD R FISCHBACH Principal Contracts Administrator
RU4ELL E HURLEY
PHIDP B.NIRD Orange County Sanitation District
MN D.MCGEEE III 10844 Ellis Avenue
KU0"GRAM AR50N Fountain Valley,California 92708
IUAOMY J. "
JOHN C GANAHL
KNRON I.KV$$EN
JEFFREY P.DAVIS Re: Entity: Orange County Sanitation District
MARK D.KRUIHERS
LEMN W.BURNSIDE Project: Sludge Dewatering and Odor Control at Plant No. 1
DAVIDD.SCHNEIDER
LYNNE MAGER BROWN Project No.: Pl-101
DA ID 0.FL WA°EN Opposition to Bid Protest Submitted by Balfour Beatty
STEPHANIEH.
CHMS7RE.SEYMOIR InfrastructureF Inc.
NATHAN W.POWELL
GREGORY N. N
PADLM PARVANIANANIgN Dear: Ms.Dubrovski
M.MAMK G.ANDEW 4 On October 1, 2012, the Orange Count Sanitation District(hereinafter,
MICAH KON
MAUHfw 1.BESMEF. gY ICAH K.HIM
M the "District") sent an Award Recommendation Notice that W. M. Lyles
MADHEW R.DILDNE Company (hereinafter, "Lyles") was the lowest responsive, responsible bidder
MARK I.GLEASON \�� Y 1p
IAREDC.MARSHALL on the Orange County Sanitation District Sludge Dewatering and Odor Control
WEEK W.PENDERGRASS
at Plant No. 1 project(hereinafter,the"Project").
SIEPHEN M.BLUMBERG
NICKO f.1J.DISL In a misguided effort to derail the proper award of the Project to Lyles,
NMES F.TJ.DIBIR D^' p 11 .i Y
MYRUL M.VARrgeeDSAO. AN Balfour Beatty Infrastructure, Inc. (hereinafter, "Balfour")has submitted a Bid
MYBDNMOAKASE
HARD I "B`""Ll"'MIERWDOD!AMPS Protest. Balfour's Bid Protest contests the District's intent to award the Project
.
to Lyles asserting that Lyles' bid was not responsive to the Invitation for Bids.
Balfour's Bid Protest is without merit. This office has been engaged by Lyles
to oppose and defend against Balfour's protest.
AULAus-- i� I. LYLES' BID IS RESPONSIVE.
A public entity is requited to put significant contracts out for
(19M-MILMJ
competitive bidding and to award the contract to the lowest responsive,
I�CtlJmM,Aw,x
sr.,,00 responsible bidder. (See MCM Construction, Inc. v. City and County of San
R�„"�,, CA`J A Francisco (1998) 66 Cal. App. 4th 359, 368; Ghiloui Construction Co. v. City
R "I.71A2C05 of Richmond(1996) 45 Cal. App. 4th 897, 904-905; and Pub. Contract Code §
..'W' 20162.) A bidder is responsible if it can perform the contract as promised.
VkoY,.CA 9JLil
P:SSR-739-TJW
R W-739 7133
Ms.Natasha K. Dubrovski
October 11, 2012
Page 2
(Id) A bid is responsive if it promises to do what the bidding instructions require. (Id.)
In its Bid Protest, Balfour asserts that Lyles' bid is non-responsive as it offers to install a
temporary wooden shoring system rather than a permanent steel shoring system. In its protest,
Balfour takes the position that the entire shoring system required by the Invitation to Bid was to
be permanent and consist of steel sheet piling. Balfour is incorrect. To the contrary, most, if not
all, of the shoring system for the Project is to be temporary and is not required to be constructed
of steel sheet piling.
Specification Section 02200"Earthwork"makes the nature of the shoring system clear at:
Part 1.6.A.: "General: The CONTRACTOR shall furnish
all labor, equipment, and materials to construct, install, and
remove the entire shoring system including removal of lagging,
soldier beams, bracing, and detensioning of tiebacks." (Emphasis
added.)
Par 1.1: The Requirement: with regard to the earthwork:
"...the furnishing, placing, and removing of sheeting, shoring and
bracing ..."(Emphasis added.)
Part 1.6.E: "Shoring Beams/Piles: The CONTRACTOR
shall coordinate the methods of installation and removal of
shoring beams/piles with the requirements for noise and vibration
control listed elsewhere in these specifications. Maximum noise
and vibration levels shall not be exceeded by the installation and
removal methods." (Emphasis added.)
Par 1.6.G: "Shoring Removal: Shoring shall be removed
cautiously such that no damage of any type is caused to existing or
newly constructed facilities." (Emphasis added.) (See enclosed at
Exhibit A.)
Not only does Section 02200 specify that the general nature of the shoring system is to be
temporary,but it acknowledges the acceptable use of a beam and lagging wooden system.
Further, Addendum No. 3 to Specification Section 01722 "Protection of Adjacent
Construction" strikes out the language requiring the north and west walls of Tunnel 17 (at Part
3A.B) and the Trickling Filter Effluent Pipeline (at Part 3A.C) to be "poured against the
shoring".' (See enclosed at Exhibit B.) If the walls were to be poured against the shoring,
obviously the intent would be for the shoring to be permanent. Conversely, the fact that the
walls are not to be poured against the shoring shows the intent of the District that the shoring be
removed,which is consistent with Section 02200.
This point is also addressed in m answer given by the District to a question from a bidding contractor, see
enclosed Exhibit E,answer to Question 28(last page of exhibit).
Ms.Natasha K. Dubrovski
October 11, 2012
Page 3
The above notwithstanding, it is arguable that Specification Section 01722, Parts 3.4.B, C
and D require a portion of the overall shoring system to be permanent(portions of Tunnel 17,the
Trickling Filter Effluent Pipeline, and Tunnel 29 between Digester Nos. 9 and 10). (See
enclosed Exhibit B.) However, these sections amount to only about 1,500 sq. ft. (Tunnel 29
between Digester Nos. 9 and 10) and 10,500 sq. ft. (Tunnel 17 and the TFE Pipeline),
respectively, of the total of approximately 41,000 sq. ft. of shoring required for the Project. In no
way do these portions transform the general nature of the shoring system provided by Section
02200. Nor does Section 01722 require the use of steel sheets or reference Specification Section
02361, which contains specs for steel sheet piling. Nonetheless, if the District desires these
specific portions to be permanent and/or steel, the work can be performed by Lyles' listed
shoring subcontractor, Schnabel Foundation Company (hereinafter, "Schnabel"). Contrary to
Balfour's assertion in its Bid Protest, Schnabel does install steel shoring systems. (See enclosed
Exhibit C.) Any permanent shoring system required for the project can and will be designed and
installed by Schnable using materials acceptable to the District at no extra cost to the District.
It should also be noted that all 3 of the bidders that listed shoring subcontractors listed
Schnabel as the shoring subcontractor; and provided subcontractors bids to the District from
Schnabel in roughly the same amount as Lyles. (See Balfour's Bid Protest, Tab 10.) The wide
use of Schnabel by bidders is further evidence that Lyles' interpretation of the shoring system
and materials for the Project is correct.
Without question Lyles' bid is responsive to the District's Invitation to Bid. To the
extent Lyles' bid contains any minor deviation from the Invitation to Bid, a public agency has
wide discretion to waive inconsequential errors in a bid and can accept a bid that deviates from,
but which substantially conforms to the call for bids. (See Konica Business Machs. U. S. A. v.
Regents of Univ. of Cal (1998)206 Cal. App. 3d 449,454; and MCM, supra at 368)
II. BALFOUR'S BID IS NON-RESPONSIVE.
Balfour's Bid Protest operates as an 11 page admission that its bid is non-responsive. As
demonstrated above, the Invitation for Bids called for a primarily removable shoring system.
Balfour admits by way of its Bid Protest that it bid the Project for an entirely permanent shoring
system, contrary to the Project specifications rendering its bid non-responsive. (See Konica,
supra at 454.)
111. BALFOUR'S BID PROTEST IS UNPERSUASIVE.
The documentation and information submitted by Balfour in support of its Bid Protest is
insufficient to show Lyles' bid is non-responsive.
A. The Project and Bid Documents(Balfour's Bid Protest,Tabs 1-4).
As shown above, Lyles' interpretation of the shoring system required for the Project is
correct. Thus, Lyles' bid does not deviate from the bid documents. To the extent Balfour's Bid
Protest alleges Lyles failed to escrow all necessary documents with the District, the allegation is
Ms.Natasha K. Dubrovski
October 11,2012
Page 4
false. The District can confirm that all necessary documents were escrowed, including
documents from Schnabel.
B. Bid Document,Section 02361 (Balfour's Bid Protest,Tab 6).
Specification Section 02361 "Steel Sheet Piling" is a Red Herring. Section 02361
provides specifications for the use of steel sheet piling on the Project. (See enclosed Exhibit D.)
However, the Bid Documents themselves do not require the use of steel sheet piling.
Additionally, Part 2.1.B of Section 02361 refers to Project "Drawings" where use of the steel
sheet piling is to be indicated. However, the reference is not reflected on any of the actual
Project drawings. Balfour's Bid Protest argues that Notes 5 and 6 of Drawing C1-7006
(discussed in greater detail below) require materials specified in Section 02361. However, CI-
7006 makes no reference to Section 02361. (See enclosed Exhibit F.) Instead, C1-7006 makes
reference to Section 01722, which makes no reference to Section 02361 and does not specify
materials to be used by the contractor. Presumably, Section 02361 was included as an option
should the contractor choose to install steel sheet piling rather than beam and lagging shoring.
To the extent Sections 02200 and 01722 conflict with Section 02361,the District's intent
that the bidding contractor have the freedom to design an appropriate shoring system on its own
is evident in its responses to bidder submitted questions, wherein it stated multiple times,
"Contractor is responsible for designing a shoring system." (See enclosed Exhibit E, answers to
questions 2, 7, 8, 16 and 27.)
C. Drawing C1-7006(Balfour's Bid Protest,Tab 5).
As stated above, Balfour's Bid Protest references Drawing C1-7006 Notes 5 and 6 as
support for its position that the District intended the shoring system to be permanent and consist
of the steel sheet piling specified in Section 02361. Unfortunately for Balfour, Drawing C1-7006
does nothing of the sort. (See enclosed Exhibit F.) CI-7006 does not require the shoring to be
permanent, does not require the shoring to be constructed with steel sheet piling, and refers the
bidding contractor to Section 01722, not Section 02361 for specifications. As addressed above,
Section 01722 does not require permanent shoring and does not specify the shoring be steel sheet
piling. Even if C1-7006 required the use of steel sheets (which it clearly does not), the section
covered by Notes 5 and 6 (Section 01722) only represents the approximately 12,000 sq. ft. of
shoring which may be permanent described above, not the entire Project Thus, C1-7006 does
not support Balfour's position.
D. Bidder Question No.27 (Balfour's Bid Protest,Tab 7)
Bidder Question No. 27 asks the District to clarify the situation along Tunnel 17 and the
72-inch Trickling Filter Effluent Pipeline. The response was, in essence, to bid as specified,
without further clarification. Specifically, the District pointed the contractor to Section 01722
and Section 02361. As discussed above, Section 01722 cites the specifications in 02200,
allowing beams and lagging, while Section 02361 provides specs for steel sheets. Again,
presumably the District is giving the bidding contractor leeway to design the details of the
shoring system.
Ms.Natasha K. Dubrovski
October 11, 2012
Page 5
IV. CONCLUSION.
The Invitation to Bid did not require Lyles to bid a permanent steel sheet piling shoring
system. Lyles did not fail to escrow any of its Bid Documents. And if any portion of the shoring
requires permanent steel sheet piling, Lyles can perform without gaining any improper advantage
over other bidders. In conclusion, Lyles is the lowest responsive, responsible bidder. This fact
has already been recognized by the District and the Project should proceed with Lyles as
awarded.
Very truly yours, JJ
DOWLINGAARONIN ORPPIRATED
By:
Steven D. McGee,Esq.
G. Andrew Slater,Esq.
SDM/GAS:nmj
Enclosures
cc: Mr. David Dawson
Mr. Rick Amigh
Ms. Andrea Oliver
P. Randolph Finch Jr.
Orange County Sanitation District
Bradley R. Hogin, Legal Counsel
Jim Herberg—Assistant General Manager&Director of Engineering
Jim Ruth, General Manager
1 G946-000\OIo79126.DOC.
Serving Orange County Sanitation District
10844 Ellis Avenue,Fountain Valley,CA 92708
Anahern (714)962-2411 wVw.ocsewers.com
Brea
Buena Park
October 15, 2012
Cypress
Fountain Valley
Fullerton Randolph Finch Jr.
MARKS, FINCH, THORNTON & BAIRD
Garden Grov,, 4747 Executive Drive, Suite 700
Huntington Sea& San Diego, CA 92121
Irvine SUBJECT: OCSD Response to Balfour Beatty Infrastructure, Inc. Bid Protest and
Supplemental Bid Protest
La Habra Re: Project No. 131-101, Sludge Dewatering and Odor Control
La Palrna at Plant No. 1
Los Alannitoo
This letter responds to the Bid Protest filed by Balfour Beatty Infrastructure (Balfour
Orange Beatty) dated October 5, 2012, as well as the Supplemental Bid Protest submitted
on October 12, 2012, protesting the Orange County Sanitation District's (OCSD)
Placentia Notice of Intent to Award dated October 1, 2012.
Santa Ana In summary, Balfour Beatty claims that the lowest bidder, W.M. Lyles Company
SealBeach (Lyles), presented a non-responsive bid because Lyles offered to install a temporary
Stanton wood shoring system in lieu of a permanent steel shoring system, which you assert
was required in the bid specifications. In order to reach a determination that Lyles is
Tustin non-responsive, Balfour Beatty suggests that OCSD (i) review the escrowed bid
Villa Park documents in order to verify that a listed subcontractor, Schnabel Foundation
Company (Schnable), proposed wood shoring work as opposed to steel; and (ii)
Yorba Linda conclude, based on the pre-bid questions submitted by Lyles, that Lyles' bid in fact
County of Orange did not conform to the bid specifications.
Cases messa As you are probably aware, "a bid is responsive if it promises to do what the bidding
Sanitaryinstructions require." (Taylor Bus Service, Inc. v. San Diego Bd. of Education
(1987) 195 Cal.App.3d 1331, 1341.) Generally, whether a bid is responsive can be
Sanitary District determined from the face of the bid based on a set of requirements established by a
public agency without outside investigation or information. (Id. at 1341-1342.) As
Water you stated in the bid protest, "California law requires public entities to enforce and
follow the rules and procedures set forth in their bid documents." (Pozar v.
Department of Transportation (1983) 145 Cal.App.3d 269.)
OCSD has considered Balfour Beatty's Bid Protest, in which all arguments lead to
the same request—that OCSD review the escrowed bid documents to find that
Lyles is non-responsive. Pursuant to the Special Provisions, SP-13, entitled
"Escrow of Bid Documents", subsection C, (Bid Protest Tab 4, p.6) provides:
"Purpose: Escrow Bid Documents will be used to assist in the
negotiation of price adjustments and Change Orders and in the
F�, a settlement of disputes, Claims and other controversies. They will
not be used for ore-award evaluation of the CONTRACTOR's
anticipated methods of construction or to assess the
CONTRACTOR's qualifications for performing the Work."
We protect public health and the environment by providing effective
wastewater collection, treatment, and recyling.
„yy SAND �
i
o�
Randolph Finch Jr.
Page 2
October 15, 2012
Contrary to Balfour Beatty's suggestion, SP-13 expressly restricts OCSD from using
the Escrow Bid Documents for the purpose of the pre-award evaluation. OCSD is
required to follow the procedures set forth in the Public Contracts Code, OCSD
Resolution 07-04, and the bid documents.
Furthermore, Balfour Beatty argues that the pre-bid questions submitted by Lyles
are conclusive proof that Lyles' bid deviated from OCSD's instructions. OCSD
cannot reach that conclusion.
OCSD has carefully reviewed the bid submitted by Lyles consistent with the law and
OCSD's procedures, and has determined that the bid submitted by Lyles is
responsive to what the bidding instructions require. Lyles did not propose a wood
shoring system in its bid proposal, and has signed the acknowledgement and
certification that it will construct the Project consistent with the bid plans and
specifications. OCSD will not engage in speculation concerning the anticipated
methods of construction of the shoring system when the bid submitted by Lyles is
responsive to what was requested in the bid documents.
By merely listing Schnabel as a subcontractor and by submitting a pre-bid question,
OCSD is unable to conclude that Lyles is non-responsive. Therefore, OCSD has
determined that the bid submitted by Lyles is responsive to the bid requirements,
and that Lyles is responsible, that is, Lyles has the fitness, quality, and capacity to
perform the proposed work satisfactorily.
OCSD has evaluated and considered the Balfour Beatty's Bid Protest and
Supplemental Bid Protest and arguments raised therein protesting award of Project
No. P1-101 to Lyles. Based on the evaluation and conclusions as described herein,
OCSD hereby denies Balfour Beatty's Bid Protest, and will proceed to recommend
award of the Project No. P1-101 to the lowest responsive and responsible Bidder,
Lyles, at the Board of Directors meeting on November 28, 2012.
Natasha K. Dubrovski
Principal Contracts Administrator
NKD:MC:ms
EDMS: 003964609
cc: Contract File 7.4.4e
Serving Orange County Sanitation District
10844 Ellis Avenue,Fountain Valle),CA92708
Anaheim (7141962-2411Buena Park vrvmacsewets.mm
Brea
October 31, 2012
cypressu Via Fax: 858-737-3101,
Fountain Valley Email: nhorn@mftb.com,
Fullerton & Certified Mail
Garden Grove P. Randolph Finch, Jr.
MARKS, FINCH, THORNTON & BAIRD
Hunfington Beach 4747 Executive Drive, Suite 700
Irvine San Diego, CA 92121
La Hatim
SUBJECT: Response to Balfour Beatty Infrastructure Supplemental Bid Protest
La Palma
Re: Project No. P7-101, Sludge Dewatering and Odor Control
Los Alamitos at Plant No. 1
Newport Beach
Orangei! The Orange County Sanitation District(OCSD) received and reviewed the
Placentia Supplemental Bid Protest letter dated October 30, 2012 submitted by Balfour
Beatty Infrastructure, Inc. OCSD has evaluated and considered the arguments
SantoAna and issues raised in Balfour Beatty's Bid Protest and Supplemental Bid Protest
Seal Beach referenced above protesting the award of Project No. P1-101 to W.M. Lyles
claiming that W.M. Lyles' bid was nonresponsive. Based on OCSD's evaluation
Stanton of the facts and arguments presented, OCSD's position remains unchanged from
Tustin its letter of October 15, 2012. OCSD will proceed to recommend award of the
Project No. P1-101 to the lowest responsive and responsible Bidder, W.M. Lyles,
Villa Park at the Board of Directors meeting on November 28, 2012.
Yortra Linda
Costa Mesa
Sanitary District Natasha K. Dubrovski
Principal Contracts Administrator
Midway City
Sanitary DWIrict NKD:ms
DistrictIrvine :
nch EDM6: 003966202
Water USPS Certified Mail Tracking Number: 7005 0390 0004 8201 6548
cc: Contract File 7.4.4e
�NtV SANnNr
N
•N 4
f
bhp ME HJP
We protect public health and the environment by providing effective
wastewater collection, treatment,and recyling.
®MOYNO
Always the Right Solution"
August 23, 2012
Attn: Ms. Natasha Dubrovski, Principal Contract Administrator
Orange County Sanitation District
10844 Ellis Ave.
Fountain Valley,CA 92708
Re: OCSD project P1-101,Cake pumps and sludge pumps
Dear Ms. Dubrovski,
Moyno has been working with the engineer, HDR, on this project for several years.
During this time we have helped HDR with design criteria for pump setup, running
speeds, and with empirical data on piping pressure losses. While the spec was
essentially changed to "sole-source"excluding Moyno, I'd like to discuss a few pertinent
Items:
• Moyno is fully capable of providing cake pumps that can operate under the
conditions given in the spec. Currently the spec is the proprietary design of
another manufacturer, thus it contains some features different from our cake
pump products. We are providing equipment that our extensive experience
shows will work in demanding cake applications such as these.
• Moyno data was used in the design of the OCSD cake system, even though
Moyno is no longer listed as a bidder.
• Moyno has a vast array of cake pump installations successfully operating
throughout the United States and other countries since the 1950's, and has
valuable experience working with most major US municipalities. This real world
experience could be of great benefit to OCSD as we work toward the successful
completion of this Important project. Although we could not provide the
consultant with a Cake pump installation of the same or greater horsepower,
we feel we have demonstrated our capability to fully perform In cake
applications for all the previous major municipal projects with a great degree of
success. Therefore, we would ask to not be excluded from providing an offering
on this project solely because of not having a similar horsepower unit. To the
best of our knowledge, our competitor offered a reference for a private
company, Entertech, whom accepts sludge from OCSD, and LA County.
• We respectfully object to the way the bid process excluded Moyno from being
able to offer competitive pricing. The competitor, whom was sole-sourced in
spec Section 11250 - Cake pumps, packaged the Cake pumps with Section
11309 - Sludge pumps for which Moyno was a named supplier. Moyno was
thereby prevented from offering a competitive bid that could be considered on
Its own merit.
• Our competitor offered sole-source pricing far exceeding Moyno's normal market
pricing on comparable equipment. We feel Orange County Sanitation District did
not benefit from competitive market pricing on the project. The final bid price
being several Million dollars over the engineering budget price, we strongly urge
OCSD to re-evaluate this bid, both to provide Moyno an honest opportunity to
compete and to secure for yourselves a competitive and successful project.
We are available to meet with the District regarding this bid and would like to be
considered. Moyno has an extensive history and presence in the OCSD plant with
several long term installations. We would like very much to be given a chance to
compete and be of service to the District.
Regards
Mark A. Yingling
Municipal Sales Manager
Moyno Inc., A Unit of Robbins and Myers, Inc.
PHONE: (937)-327-3017
FAX: (937)-327-3177
mark.yi nali naCa)robn.com
www.moyno.com
Servin Orange County Sanitation District
- 10a44 Ellis Avenue,Fountain Valley,CA 92708
Anaheim (714)962-2411Buena Park www.ocsewerscom
October 4, 2012
Via Fax: (937) 327-3177
Fountain Valley & mark.vinclingarobn.com
Fullerton Mark A, Yingling
GroveGarden Moyno Inc., A Unit of Robbins and Myers, Inc.
1895 W. Jefferson
Huntington Beach Springfield, OH 45506
La Habra SUBJECT: Response to Moyno's Letter of August 23, 2012
Le Palma Re: Project No. P1-101, Sludge Dewatering and Odor Control
at Plant No. 1
Newport Beach Orange County Sanitation District (OCSD) received your letter dated August 23,
Orange 2012 regarding Project P1-101 ("Project").
Placentia f
On January 25, 2012, OCSD's Board of Directors adopted Resolution No. 12-01
Santa Ana making findings pursuant to Public Contract Code Section 3400 in support of the
SealBeach Sole Source of cake pumps and directing that the sludge cake pumps manufactured
by Seepex meeting OCSD's needs be specified by name in the Invitation for Bids for
Stanton the Project. A copy of OCSD's Resolution 12-01 is included for your reference. The
Tustin Agenda Report and draft Resolution 12.01 was published and made available for
viewing prior to the above referenced Board meeting in accordance with OCSD's
Mile Park policies and procedures and applicable laws and regulations.
Yortha Linda Consistent with Resolution No. 12-01, the Invitation for Bids listed Seepex by name
County of orange for the sludge cake pumps. Pursuant to the Instructions to Bidders, Section IB-30,
Costa
Mesa
solicitation protests must be submitted no later than 10 days after the First
Sanitary District Advertisement. Your request for consideration is untimely.
We appreciate your input and value our relationship. Thank you for your
Sanitary District communication and we look forward to working with your company in the future.
Invine Ranch
Water District
4;e t'—
Nat sha K. Dubrovski
Principal Contracts Administrator
O++VV SRXltq roy
` o NKD:MC:ms
EDMS:003964176
Enclosures: OCSD Resolution 12-01
or i
f� +' cc: A. Mirzy (Moyno, Inc.), Contract File 7.4.4e
" rxr �°•
we protect public health and the environment by providIng effective
wastewater collection, treatment, and recylfng.
PART A
CONTRACT AGREEMENT
C-CA-070612
TABLE OF CONTENTS
CONTRACT AGREEMENT
SECTION - 1 GENERAL CONDITIONS....................................................................1
SECTION -2 MATERIALS AND LABOR..................................................................4
SECTION -3 PROJECT............................................................................................5
SECTION -4 PLANS AND SPECIFICATONS..........................................................5
SECTION -5 TIME OF COMMENCEMENT AND COMPLETION............................5
SECTION -6 TIME IS OF THE ESSENCE...............................................................6
SECTION -7 EXCUSABLE DELAYS........................................................................6
SECTION -8 EXTRA WORK....................................................................................7
SECTION -9 CHANGES IN PROJECT....................................................................7
SECTION - 10 LIQUIDATED DAMAGES FOR DELAY ...............................................8
SECTION - 11 CONTRACT PRICE AND METHOD OF PAYMENT............................8
SECTION - 12 SUBSTITUTION OF SECURITIES IN LIEU OF RETENTION OF
FUNDS ..............................................................................................10
SECTION - 13 COMPLETION....................................................................................10
SECTION - 14 CONTRACTOR'S EMPLOYEES COMPENSATION .........................11
SECTION - 15 SURETY BONDS...............................................................................13
SECTION - 16 INSURANCE......................................................................................14
SECTION - 17 RISK AND INDEMNIFICATION .........................................................15
SECTION - 18 TERMINATION...................................................................................16
SECTION - 19 WARRANTY.......................................................................................16
SECTION -20 ASSIGNMENT....................................................................................17
SECTION -21 RESOLUTION OF DISPUTES...........................................................17
SECTION -22 SAFETY& HEALTH...........................................................................17
SECTION -23 NOTICES ...........................................................................................18
C-CA-070612
CONTRACT AGREEMENT
ORANGE COUNTY SANITATION DISTRICT
PROJECT NO. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
THIS AGREEMENT is made and entered into, to be effective, this October 24, 2012, by and
between W.M. Lyles Company, 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.
C-CA-070612
PROJECT NO.P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 1 of 19
A. Contract Documents Order of Precedence
'.Contract Documents" refers to those documents identified in the definition of"Contract
Documents" in the General Conditions - Definitions.
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, including, but not limited to, Pre-Selection
Agreement assigned to and accepted by Contractor-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
I. OCIP Insurance policies
ii. Exhibit B
iii. Exhibit C OCIP Insurance Manual
iv. Exhibit D OCIP Safety Standards
V. Other provisions of the 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
C-CA-070612
PROJECT NO. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 2 of 19
iii. 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
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
C-CA-070612
PROJECT NO.P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 3 of 19
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.
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
C-CA-070612
PROJECT NO. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 4 of 19
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. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
SECTION-4 PLANS AND SPECIFICATONS
The Work to be done is shown in a set of Plans and Specifications entitled:
PROJECT NO. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
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 1425 calendar days from the date of the"Notice to
Proceed" issued by OCSD, excluding delays caused or authorized by OCSD as set forth in
C-CA-070612
PROJECT NO.P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 5 of 19
Sections 7, 8, and 9 hereof, and applicable provisions in the General Conditions. The time for
completion includes 30 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
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
C-CA-070612
PROJECT NO. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 6 of 19
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—8 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
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.
C-CA-070612
PROJECT NO.P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 7 of 19
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 approved Change Orders, the sum of One Hundred Twenty-Six Million Nine
Hundred Eight Thousand Three Hundred Dollars ($126,908,300)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
C-CA-070612
PROJECT NO. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 8 of 19
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. 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;
C-CA-070612
PROJECT NO.P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 9 of 19
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 of OCIP payments for the CONTRACTOR's obligation,
OCIP-related costs and OCIP penalties assessed as specified in the General
Conditions;
f. 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."
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' and "Final Payment".
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Upon receipt of CONTRACTOR's affidavit, and all documentation, records, and releases as
required by the Contract, 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
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.
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PROJECT NO.P1-101
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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. Workday:
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
seq.)of the Labor Code of the State of California and shall forfeit to OCSD as a penalty,
the sum of 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.
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Page 12 of 19
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. Record of Wages: Inspection:
CONTRACTOR agrees to maintain accurate payroll records showing the name,
address, social security number, work classification, straight-time and overtime hours
worked each day and week, and the actual per diem wages paid to each journeyman,
apprentice, worker or other employee employed by it in connection with the Project and
agrees to require that each of its Subcontractors do the same. All payroll records shall
be certified as accurate by the applicable CONTRACTOR or Subcontractor or its agent
having authority over such matters.
CONTRACTOR further agrees that its payroll records and those of its Subcontractors
shall be available to the employee or employee's representative, the Division of Labor
Standards Enforcement, and the Division of Apprenticeship Standards and shall comply
with all of the provisions of Labor Code Section 1776, in general. Penalties for non-
compliance with the requirements of Section 1776 may be deducted from Project
payments per the requirements of Section 1776.
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
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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
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 not commence Work under this Contract until it enrolls in the Owner
Controlled Insurance Program (OCIP) and all additional insurance as required by the Contract
Exhibit B and Exhibit C is obtained in a form acceptable to OCSD, nor shall CONTRACTOR
allow any Subcontractor to commence Work on a subcontract until each eligible Subcontractor
enrolls in the OCIP and all additional insurance required of the Subcontractor by the Contract,
Exhibit B and Exhibit C has been obtained. CONTRACTOR shall maintain all of the additional
C-CA-070612
PROJECT NO. P1-101
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CONFORMED NOVEMBER 28,2012
Page 14 of 19
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
additional insurance coverages in full force and effect throughout the warranty period,
commencing on the date of Final Acceptance. The requirement for carrying the additional
insurance shall not derogate from the provisions for indemnification of OCSD by
CONTRACTOR under Section 17 of this Contract.
CONTRACTOR's additional 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, which 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.
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".
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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;
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CONFORMED NOVEMBER 28,2012
Page 16 of 19
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. This Section
does not apply to any OCIP-related claims.
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 D, OCIP Safety Standards.
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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: W.M. Lyles Company
P.O. Box 4377
Fresno, CA 93744
Copy to: David B. Dawson, Sr. Vice President
W.M. Lyles Company
P.O. Box 4377
Fresno, CA 93744
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PROJECT NO. P1-101
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CONFORMED NOVEMBER 28,2012
Page 18 of 19
IN WITNESS WHEREOF, the parties hereto have executed this Contract Agreement as the
date first hereinabove written.
Approved as to Form:
Marc Dubois
Contracts, Purchasing and Materials
Management Division Manager
CONTRACTOR: W.M. Lyles Company
P.O. Box 4377
Fresno, CA 93744
By
Its
CONTRACTOR's State License No. 422390 (Expiration Date—6/31/2014)
OCSD: Orange County Sanitation District
By
Chair, Board of Directors
By
Clerk of the Board
By
Marc Dubois
Contracts, Purchasing and Materials
Management Division Manager
C-CA-070612
PROJECT NO.P1-101
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EXHIBIT A
SCHEDULE OF PRICES
C-EXA-070612
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.....6
ATTACHMENT 1 CERTIFICATION FOR REQUEST FOR PAYMENT........................7
ATTACHMENT 2 SCHEDULE OF PRICES ...........................................................8
C-EXA-070612
EXHIBIT A
SCHEDULE OF PRICES
EXA-1 BASIS OF COMPENSATION
CONTRACTOR will be paid the Contract Document 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.
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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 Deductions:
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 but not limited to OCIP related
withholdings, costs and fees as specified in Exhibit B and Exhibit C
Insurance Manual.
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SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
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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 slop 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.
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PROJECT NO. P1-101
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CONFORMED NOVEMBER 28,2012
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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. Less all amounts for the OCIP including, but not limited to, payments for
the Contractor's Obligation, OCIP-related audit costs and OCIP
penalties assessed;
d. Amounts retained;
e. A Conditional Waiver And Release On Final Payment for each
Subcontractor(per Civil Code Section 8136);
f. A Conditional Waiver And Release On Final Payment on behalf of the
CONTRACTOR (per Civil Code Section 8136);
g. List of Claims the CONTRACTOR intends to file at that time or a
statement that no Claims will be filed,
h. 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
i. 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.
j. All completed Aon Form-5 Notices of Work Completion for itself and
each Subcontractor as specified in Exhibit B and Exhibit C Insurance
Manual.
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 filed in connection with the Work. Prior progress
C-EXA-070612
PROJECT NO.Pi-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 4 of 10
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
acceptance by OCSD, the revised application for final payment will become
the approved application for final payment.
4. If no Claims have been filed with the initial or any revised application for
final payment, and no Claims remain unsettled within thirty (30)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 30 days of receipt of Final Payment.
C-EXA-070612
PROJECT NO. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 5 of 10
EXA-S 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;
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 Contractor applicable law.
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PROJECT NO.Pi-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 6 of 10
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
C-EXA-070612
PROJECT NO. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 7 of 10
ATTACHMENT
SCHEDULE OF PRICES
Item Approx. Item Unit Total
No. Qty. Price Price
1. Lump Mobilization
Sum Mobilization in accordance with General
(LS) Conditions, Payment—Mobilization Payment
requirements, Division 01, Section 01155,
Measurement and Payment and Section 01711,
Mobilization and Demobilization, in conformance
with the Contract Documents for the lump sum
price of: LS $ 31000,000
2. Lump Sheeting, Shoring and Bracing
Sum Furnish all labor, materials and equipment
(LS) necessary for sheeting, shoring and bracing for
protection of life and limb in trenches, open
excavations and confined spaces and in
conformance with the Contract Documents for the
lump sum price of: LS $ 2,000,000
3. Lump Sludge Dewatering and Odor Control at Plant 1
Sum Furnish all labor, materials, equipment and
(LS) services, except for Bid Item Nos. 1 through 12,
for the Construction of Sludge Dewatering and
Odor Control at Plant no. 1 in conformance with
the Contract Documents, and consistent with the
selected Dewatering Centrifuge Alternative
selected in Bid Item 5,for the lump sum price of: LS $ 86,343,573
4. 41,240 Piles
Linear Furnish all labor, materials and equipment
Feet necessary for piles as specified in Sections
(LF) 02373, Drilled piers and 02374, Drilled Piers—
Load Testing and in compliance with the Contract $1531
Documents for the unit and total price of: LF $ 6,309,720
5. Lump Thickening Centrifuges
Sum Furnish,factory test and deliver three(3)
(LS) Thickening Centrifuge systems, including
centrifuges, motors,variable frequency drives,
lubrication systems, control panels, sensors and
monitoring Equipment, sludge density meters,
centrate and discharge chutes, spare parts, tools,
all other accessories and appurtenances, training
and on-site services in accordance with Section
11369,Thickening Centrifuges and in
conformance with the Contract Documents for the
lump sum price of(Cost for installation and on-site
testing of the centrifuge system shall be included
in Bid Item No. 3): LS $ 12,852,007
C-EXA-070612
PROJECT NO.P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 8 of 10
Item Approx. Item Unit Total
No. Cry. Price Price
5a. Lump Thickening Centrifuge Spare Rotating
Sum Assembly
(LS) Furnish,factory test and deliver one spare rotating
assembly for the Thickening Centrifuge systems,
including rotating assembly, bearings, storage
supports, and all other accessories and
appurtenances in accordance with Section 11369,
Thickening Centrifuges and in conformance with
the Contract Documents for the lump sum price
of: LS $ 1,452,000
5b. Lump Thickening Centrifuge Operations and
Sum Maintenance Assistance
(LS) Furnish operations and maintenance assistance
associated with the Thickening Centrifuge
systems, including parts and materials, in
accordance with Section 11369 and in
conformance with the Contract Documents for the
lump sum price of: LS $ 361,000
6. Lump Dewatering Centrifuges
Sum Furnish,factory test and deliver three (3)
(LS) Dewatering Centrifuge systems, including
centrifuges, motors,variable frequency drives,
lubrication systems, control panels, sensors and
monitoring equipment, sludge density meters,
centrate and discharge chutes, spare parts, tools,
all other accessories and appurtenances, training
and on-site services using either Alternative A
or Alternative B and indicating with a
checkmark in the appropriate box below for
the alternative being bid, and in conformance
with the Contract Documents for the lump sum
price of(Cost for installations and on-site testing
of the centrifuge system shall be included n Bid
Item No. 3):
ALTERNATIVE A:
[ ]Westfalia, as specified in Section 11365A
ALTERNATIVE B:
[ ]Alta Laval, as specified in Section 11365B LS $ 6,300,000
6a. Lump Dewatering Centrifuge Spare Rotating
Sum Assembly
(LS) Furnish,factory test and deliver one spare rotating
assembly for the Dewatering Centrifuge systems
bid in item 6, including rotating assembly,
bearings, storage supports and all other
accessories and appurtenances and in
conformance with the Contract Documents for the
lump sum price of: LS $ 1,200,000
C-EXA-070612
PROJECT NO. P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 9 of 10
Item Approx. Item Unit Total
No. Qty. Price Price
6b. Lump Dewatering Centrifuge Operations and
Sum Maintenance Assistance
(LS) Furnish operations and maintenance assistance
associated with the Dewatering Centrifuge
systems bid Item 6, including parts and materials
and in conformance with the Contract Documents
for the lump sum price of: LS $ 110,000
7. Lump Sludge Cake Pumping System
Sum Furnish,factory test and deliver sludge cake
(LS) pumping system including progressing cavity
pumps, motors, inlet chutes, sludge gates, load
cell, slip injection pumps and rings,Flexible
connections, cake piping and fittings, valves and
actuators, pipe supports and all sludge cake
pumping apparatus in accordance with Section
11250, Sludge Cake Pumping System and
Section 11210, Pumps, General and in
conformance with the Contract Documents for the
lump sum price of., LS $ 6,100,000
8. Lump Commissioning
Sum Furnish all labor, materials and equipment
(LS) necessary for Commissioning in accordance with
Section 01810, Commissioning and in
conformance with the Contract Documents for the
lump sum price of: LS $ 780,000
9. Lump Demobilization
Sum Demobilization in accordance with Section 01155,
(LS) Measurement and Payment and Section 01711,
Mobilization and demobilization and in
conformance with the Contract Documents for the
lump sum price of. LS $ 100,000
TOTAL AMOUNT OF BID (BASIS OF AWARD) $ 126,908,300
C-EXA-070612
PROJECT NO.P1-101
SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1
CONFORMED NOVEMBER 28,2012
Page 10 of 10
PRE-SELECTION AGREEMENT
Sludge Dewatering and Odor Control at Plant No. 1, Project No P1-101
Pre-Selection Agreement
THIS AGREEMENT is made and entered into as of the date fully executed below by and
between ORANGE COUNTY SANITATION DISTRICT, with a principal place of business at
10844 Ellis Avenue, Fountain Valley, CA 92708-7018 (hereinafter referred to as"OCSD") and
GEA Mechanical Equipment US, INC., with a principal business at 100 Fairway Court,
Northvale, New Jersey 07647 (hereinafter referred to as "VENDOR") collectively referred to as
the"Parties", or individually referred to as a "Party".
RECITALS:
WHEREAS, pursuant to Resolution No. OCSD 10-10, OCSD made sole source
specification findings as required under Public Contract Code §3400 designating VENDOR by
name as the only manufacturer of centrifuges meeting OCSD's needs for co-thickening sludge;
and
WHEREAS, OCSD desires to purchase the equipment and retain the services of
VENDOR as described in the attached Scope of Workrrechnical Specifications (Exhibit"A") and
herein referred to as "Equipment"and "Services"; and
WHEREAS, VENDOR has submitted a cost Proposal as provided in the attached Exhibit
"B"to sell the Equipment and Services in an amount not to exceed fourteen million six hundred
sixty-five thousand and seven dollars ($14,665,007); and
WHEREAS, the Parties enter into this Agreement with the understanding that OCSD
shall thereafter assign this Agreement to its construction contractor.
NOW, THEREFORE, in consideration of the promises and mutual benefits exchanged
between the Parties, it is mutually agreed as follows:
1. Introduction
1.1 This Agreement and all exhibits hereto(called the "Agreement') is made by
OCSD and VENDOR. The Terms and Conditions herein exclusively govern the
purchase of Equipment and Services as described in the Scope of
Workrrechnical Specifications, attached hereto and Incorporated herein by
reference as Exhibit"A".
1.2 Exhibits to this Agreement are incorporated by reference and made a part of this
Agreement as though fully set forth at length herein. Exhibits to this Agreement
are as follows in order of precedence:
Exhibit"A" Scope of Work/Technical Specifications
Exhibit"B" VENDOR Cost Proposal
Exhibit "C" Assignment of Agreement, Consent to Assignment, and
Acceptance of Assignment
Exhibit "D" Acknowledgement of Insurance Requirements
Preselection Agreement P1-101
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This Agreement along with the Exhibits referenced herein shall collectively be
referred to as "Agreement Documents."
The following items, which may be delivered or issued on or after the Effective
Date of this Agreement and are not attached hereto, shall also constitute part of
the Agreement Documents:
• Notice to Proceed;
• Notice(s)to Commence Fabrication;
• Written Amendment(s) (upon written acceptance of both parties);
• Change Order(s) (upon written acceptance of both parties);
• Field Order(s) (upon written acceptance of both parties);
• Engineers Written Directive(s) (upon written acceptance of both parties); and
• Information for Bid (IFB)for Project No. P1-101.
1.3 In the event of any conflict or inconsistency between the provisions of this
Agreement and any of the provisions of the Exhibits hereto, the provisions of this
Agreement shall in all respects govem and control.
1.4 The provisions of this Agreement, including changes affecting the Scope of
Work/Technical Specifications detailed in Exhibit"A", may be amended or waived
only by a writing executed by authorized representatives of both Parties hereto.
1.5 The various headings in this Agreement are inserted for convenience only and
shall not affect the meaning or interpretation of this Agreement or any Paragraph
or provision hereof.
1.6 The term "work", when used in this Agreement, shall mean all the work specified
in the Agreement Documents necessary to complete the requirements of the
Agreement, including the furnishing of all labor and materials.
1.7 The term "days", when used in this Agreement, shall mean calendar days, unless
otherwise noted as business days.
1.8 VENDOR shall provide OCSD with all required premiums and/or overtime work
within the Scope of Work/Technical Specifications at no charge beyond the price
provided under"Compensation" below.
1.9 Except as expressly provided otherwise, OCSD accepts no liability for any
expenses, losses, or action incurred or undertaken by VENDOR as a result of
work performed in anticipation of purchases of said Equipment and Services by
OCSD.
2. Equipment and Services
2.1 VENDOR shall furnish the Equipment and Services as specified or indicated in
the Agreement Documents. The Equipment and Services to be furnished are
described in the Scope of Work/Technical Specifications attached hereto as
Exhibit"A", and may be generally described as follows: design, shop drawings,
Preselection Agreement P1-101
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fabrication, testing and delivery of three (3)thickening centrifuges and ancillary
components in accordance with Specification section 11369 of the Sludge
Dewatering and Odor Control Project at Plant 1, Project No. P1-101, assistance
during installation of the Equipment, commissioning of the Equipment, delivery of
Equipment manuals, operations assistance and warranty of the Equipment.
2.2 All Equipment and Services associated with the performance of this Agreement
shall be done in accordance with generally accepted industry and professional
standards.
3. The Project
3.1 The Project for which the Equipment and Services are to be provided under this
Agreement is for OCSD's the Sludge Dewatering and Odor Control Project at
Plant 1, Project No. P1-101 ("Project").
3.2 OCSD retains the right to assign all or a portion of this Agreement, which
includes the production, delivery and commissioning of Equipment and all or a
portion of the associated Services,to a Contractor. For this Project, an
assignment of this Agreement shall be made for the Equipment and Services to
be provided herein.
4. Point of Destination
4.1 The place where the Equipment and Services are to be delivered and/or provided
shall be F.O.B. destination to OCSD, Plant No. 1, 10844 Ellis Avenue, Fountain
Valley, California, within the lead time as required by the subsequent Invitation
for Bid (IFB) issued for the Project.
4.2 VENDOR assumes full responsibility for all transportation, transportation
scheduling, packing, handling, insurance, and other services associated with
delivery of all products deemed necessary under this Agreement.
4.3 Title of Equipment shall transfer to OCSD upon payment in full. Risk of loss shall
transfer to OCSD upon delivery of Equipment to OCSD's Point of Destination.
5. Agreement Times
5.1 All time limits for Milestones for the delivery of Equipment and the furnishing of
Services as stated in the Invitation for Bid are of the essence of the Agreement.
All work performed under this Agreement shall be completed within the days
specified in the subsequent Information for Bid.
5.2 The term of this Agreement may be extended only by written instrument signed
by both Parties.
5.3 Liquidated Damages
5.3.1 OCSD and VENDOR recognize that time is of the essence of this
Agreement and that OCSD will suffer damages if the Equipment is not
Preselection Agreement P1-101
-3-
fabricated and ready for delivery within the time specified in the subsequent
Information for Bid and/or the Services are not delivered in a timely manner
or are not in conformance with the requirements of the Agreement
Documents as to cause a delay in the Commissioning of the Equipment.
The Parties also recognize that the timely performance of services by other
parties involved in OCSD's Project are materially dependent upon the
VENDOR's specific compliance with the times specified in the subsequent
Information for Bid plus any extensions thereof allowed in accordance with
the terms provided herein. Further, the Parties recognize that the delays,
expense, and difficulties Involved in proving the actual losses or damages
suffered by OCSD if complete acceptable submittals are not delivered on
time. Accordingly, and instead of requiring proof of such losses or
damages, OCSD and VENDOR agree that as liquidated damages for delay
(but not as a penalty), VENDOR shall pay OCSD one thousand dollars
($1,000)for each day that expires after the times or dates specified for
deliveries. By execution of this Agreement, the Parties expressly agree that
these liquidated damage amounts are reasonable under the circumstances
existing at the time this Agreement is executed.
5.3.2 OCSD may deduct the amount of liquidated damages from monies due the
VENDOR under this Agreement.
5.3.3 The liquidated damages set forth in this section 5 shall constitute OCSD's
sole and exclusive remedy for delays by the VENDOR in achieving any of
the milestone delivery dates with respect to the delivery of Equipment and
Services under the applicable provisions of the Agreement Documents.
6. Compensation
6.1 OCSD shall pay VENDOR for furnishing the Equipment and Services in
accordance with the Agreement Documents in current funds in an amount not to
exceed the total amount of fourteen million six hundred sixty-five thousand and
seven dollars ($14,665,007) as stated in VENDOR's Proposal, attached hereto
as Exhibit"S."
6.2 Pricing as Indicated in VENDOR's Proposal attached hereto as Exhibit"B" shall
remain available to OCSD for a period of two (2) years from the date of the
execution of this Agreement. At no time shall the pricing as Indicated in
VENDOR's Proposal be altered unless approved by OCSD.
7. Payment
7.1 Payment(s) shall be made within thirty (30) days of delivery and acceptance of
the Equipment and Services to OCSD as provided in VENDOR's Proposal.
VENDOR shall submit an application for progress payment to OCSD. OCSD
shall be the determining party as to whether the tasks and deliverables have
been completed in accordance with the Agreement Documents,
Pre-Selection Agreement P1-101
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8. Vendor's Representations
8.1 In order to Induce the District to enter into this Agreement, VENDOR makes the
following representations:
8.1.1 VENDOR has examined and carefully studied the Agreement Documents
and the other related data identified in the Scope of WorklTechnical
Specifications attached hereto as Exhibit"A".
8.1.2 If specified, or if, in VENDOR's judgment, any local condition may affect
cost, progress or the furnishing of Equipment and Services, VENDOR has
visited the Point of Destination and become familiar with the Project, and is
satisfied as to the local conditions that may affect cost, progress or the
furnishing of Equipment and Services.
8.1.3 VENDOR is familiar with and is satisfied as to all local federal, state and
local laws and regulations that may affect cost, progress and the furnishing
of the Equipment and Services.
8.1.4 VENDOR has carefully studied and correlated the information known to
VENDOR, and information and observations obtained from VENDOR's
visits, If any, to the Point of Destination, with the Agreement Documents.
8.1.5 VENDOR has given OCSD written notice of all conflicts, errors, omissions,
ambiguities, discrepancies, exceptions to Agreement Documents that
VENDOR has discovered in the Agreement Documents.
8.1.6 The Agreement Documents are generally sufficient to indicate and convey
understanding of all terms and conditions for furnishing Equipment and
Services.
8.1.7 Should VENDOR discover any latent or unknown conditions materially
differing from those inherent in the work or as represented by OCSD,
VENDOR shall immediately inform OCSD of this and shall not proceed,
except at VENDOR's risk, until written instructions are received from
OCSD.
8.1.8 VENDOR's relationship to OCSD in the performance of this Agreement is
that of an Independent Contractor. VENDOR's personnel performing
services under this Agreement shall at all times be under VENDOR's
exclusive direction and control and not employees of OCSD. VENDOR
shall pay all wages, including prevailing wages, where applicable, salaries
and other amounts due to its employees in connection with this Agreement
and shall be responsible for all applicable state, federal, and local reports
and obligations respecting them as labor wages, social security, income tax
withholding, unemployment compensation and similar matters.
Pre-Selection Agreement P1-101
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9. Assionment
9.1 OCSD has the right to assign this Agreement for furnishing Equipment and
Services hereunder, and VENDOR shall accept such assignment. Services shall
be fumished by VENDOR. Forms documenting the assignment of this
Agreement are attached as Exhibit"C"to this Agreement.
9.2 This Agreement will be executed in the name of OCSD initially, and will be later
assigned to a construction contractor, hereinafter referred to as the"Contractor,"
designated by OCSD. The assignment of this Agreement will occur on the
effective date of the agreement between OCSD and the Contractor, which is
expected to occur on or about August of 2012. As of the date of acceptance of
the assignment by the Contractor, all references in the Agreement Documents to
OCSD shall mean the designated Contractor whose responsibilities will include
the installation or erection or incorporation of the Equipment.
9.3 Except for the obligations set forth in Section 15 (Safety Requirements of
OCSD) and 16 (Proprietary and Confidential Information), the assignment
of this Agreement shall relieve the District from all further obligations and
liabilities under the Agreement that shall be consistent with or reasonably
inferable from the overall intent of the Agreement Documents. After assignment,
VENDOR shall become a subcontractor or supplier to the assignee and, except
as noted herein, all rights, duties, and obligations of OCSD under the Agreement
shall become the rights, duties and obligations of the assignee.
9.4 After assignment:
9.4.1 All performances, warranties, and guarantees required by the Agreement
Documents will continue to run for the benefit of OCSD and, in addition, for
the benefit of the assignee.
9.4.2 Upon written request by either assignee or VENDOR, OCSD will issue, with
reasonable promptness, such clarifications or interpretations of the
Agreement Documents, which shall be consistent with or reasonably
inferable from the overall intent of the Agreement Documents. Such written
clarifications and interpretations will be final and binding on assignee and
VENDOR unless a written appeal is delivered to OCSD within 30 days after
the date of such decision.
9.4.3 No other assignment by a Party hereto of any rights under or interests in
the Agreement Documents will be binding on another party hereto without
the written consent of the Party sought to be bound. Unless specifically
stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or
responsibility under the Agreement Documents.
9.5 This Agreement shall be binding upon the Parties to this Agreement and their
respective successors, representatives, heirs and assigns.
Preselection Agreement P7-101
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10. Termination
10.1 OCSD reserves the right to terminate this Agreement for its convenience,with or
without cause, in whole or in part, at any time, by written notice from OCSD,
(delivered by certified mail, return receipt requested) of intent to terminate. Upon
receipt of a termination notice, VENDOR shall immediately discontinue all work
under this Agreement(unless the notice directs otherwise). OCSD shall
thereafter, within thirty (30) days, pay VENDOR for work performed and costs
incurred (cost and fee)to the date of termination. VENDOR expressly waives any
claim to receive anticipated profits to be earned during the uncompleted portion
of this Agreement. Such notice of termination shall terminate this Agreement and
release OCSD from any further fee, cost or claim hereunder by VENDOR other
than for work performed and costs incurred to the date of termination.
10.2 OCSD reserves the right to terminate this Agreement immediately upon OCSD'S
determination that VENDOR is not meeting specification requirements, if the
level of service is inadequate, or any other default of this Agreement.
10.3 OCSD may also immediately cancel for default of this Agreement in whole or in
part by written notice to VENDOR:
❑ If VENDOR becomes insolvent or files a petition under the Bankruptcy Act; or
❑ If VENDOR sells its business; or
❑ If VENDOR breaches any of the terms of this Agreement; or
❑ If total amount of compensation exceeds the amount authorized under this
Agreement.
10.4 No termination by OCSD for default shall be effective unless, within five (5) days
after receipt by VENDOR of OCSD's written notice specifying such default,
VENDOR shall have failed to initiate and pursue with due diligence correction of
such specified default.
10.5 All OCSD property in the possession or control of VENDOR shall be returned by
VENDOR to OCSD upon demand, or at the termination of this Agreement,
whichever occurs first.
11. Insurance
11.1 VENDOR shall purchase and maintain, throughout the life of this Agreement and
any periods of warranty or extensions, insurance in amounts equal to the
requirements set forth in the signed Acknowledgement of Insurance
Requirements (attached hereto and incorporated herein as Exhibit"D").
VENDOR shall not commence work under this Agreement until all required
insurance is obtained in a form specified in Exhibit"D", nor shall VENDOR allow
any subcontractor to commence services pursuant to a subcontract until all
insurance required of the subcontractor has been obtained. Failure to maintain
required insurance coverage shall result in termination of this Agreement.
Preselection Agreement 121-101
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12. Indemnification and Hold Harmless Provision
12.1 VENDOR agrees to save, indemnify, defend and hold harmless OCSD against
any and all claims made by third parties for liability, claims,judgments, cost and
demands arising from injuries or death of persons and damage to property, to the
extent arising directly or indirectly out of the negligence or willful misconduct of
VENDOR, its employees or agents, in relation to the rendition of Equipment and
Services pursuant to this Agreement, except claims or litigations arising through
the sole negligence or willful misconduct of OCSD. VENDOR agrees to
reimburse OCSD for any expenditure, including reasonable attorney's fees,
OCSD may incur by reason of such matters, and, will defend any such suits at
the cost and expense of VENDOR, provided that OCSD has given VENDOR
prompt notice of such action, all necessary assistance in the defense thereof and
the right to control all aspects of the defense thereof Including the right to settle
or otherwise terminate such action on behalf of OCSD.
13. Warranty
13.1 All manufacturer warranties will begin as specified in Section 13.3. VENDOR
shall be responsible for repairing or replacing the defective part, at no cost to
OCSD including installation and freight. This warranty does not cover parts
damaged by decomposition from chemical reaction or wear caused by abrasive
materials, nor does it cover damage resulting from misuse, accident, neglect, or
from improper operation, maintenance, modification or adjustment.
13.2 VENDOR's obligation under this warranty and any other warranty or guarantee
which is part of the Agreement is limited to furnishing repairs or replacements for
Equipment or parts determined to be defective on inspection by an authorized
representative of VENDOR.
13.3 VENDOR warrants to OCSD that the Equipment purchase from VENDOR are
free from defects in material and workmanship for a period of twenty-four(24)
months from the dale of OCSD's initial operation or production using the
Equipment. provided that: (a)the Equipment is installed in accordance with
VENDOR's specifications and instructions and is used and maintained normally
and properly in accordance with VENDOR's instructions as to maintenance and
operation, as set forth in written operation and maintenance manuals furnished to
OCSD by VENDOR; (b)the Equipment is used for processing product consistent
with the feed characteristics set forth in VENDOR's proposal or, if none are
stated in the proposal, then consistent with the Specifications outlined in the
Scope of Workrrechnical Specifications, but if no feed characteristics or feed
specifications are slated in the proposal or Scope of Worklrechnical
Specifications, the Equipment is used to process product Identical to produce
provided to VENDOR for testing prior to the Scope of Workrechnical
Specifications being entered into; (c)the Equipment has not been changed
without the prior written approval of Vendor; (d) OCSD gives prompt written
notice to VENDOR before the end of the warranty period specifying all alleged
defects In the Equipment; and (e) OCSD preserves and turns over to VENDOR
and permits reasonable inspection by VENDOR of all allegedly defective
Equipment, parts or items and access to the Equipment to observe its startup,
operation and maintenance.
Preselection Agreement P7-101
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13.4 This warranty shall not cover(1) any Equipment furnished by OCSD or any third
party (other than a subcontractor of VENDOR), (ii) any defects arising from
corrosion, abrasion, use of unsuitable lubricants, operation outside of prescribed
temperature ranges, or negligent attendance or faulty operation, (III) ordinary
wear and tear, (iv) any defects caused by errors on the part of OCSD in not
providing suitable premises in which the Equipment is to be located, adequate
foundation, or adequate protection against influences within or outside the
premises which may affect the Equipment or its operation. Notwithstanding the
warranty set forth above, VENDOR shall not warrant any Equipment, where the
seller of such Equipment(other than by Vendor) is specified by OCSD, for a
period longer than warranted by the seller.
13.5 This warranty of material and workmanship is the only warranty made by
VENDOR and is in lieu of all other warranties, express or implied, and VENDOR
disclaims, on behalf of itself, its subcontractors and subsuppliers, any and all
implied warranties, including, without limitation, warranties of merchantability,
fitness for a specific purpose (other than the purpose stated in OCSD's Scope of
WorklTechnical Specifications set forth in the Agreement Documents), suitability
or performance.
14. Force Maieure
14.1 Neither party shall be liable for any loss or damage from delays caused by strikes
or other labor difficulties, war, riots, changes in laws and regulations and other
acts of governmental authorities, Inclement weather, fire, flood, unavoidable
casualties, acts of God, or any other cause beyond its control, but said party shall
use reasonable efforts to minimize the extent of the delay. Work affected by a
Force Majeure condition may be rescheduled by mutual consent or may be
eliminated from the Agreement. In the event of any delay caused by a Force
Majeure, VENDOR will notify OCSD within a reasonable time, after VENDOR
becomes aware of such cause of delay, and it is agreed that the time for delivery
or completion shall be extended for a period of time at least equal to the time lost
by reason of the delay.
15. Safety Requirements of OCSD
15.1 OCSD shall use all safety devices, guards, and proper safe operating and
maintenance procedures as prescribed by all applicable laws, rules, regulations,
codes and standards, and as set forth in operating and maintenance manuals
furnished by VENDOR. OCSD shall not remove or modify any safety device,
guard or warning sign. OCSD agrees to indemnify, defend and safe VENDOR
harmless from any claim, liability or obligation (including the costs and
reasonable attomeys'fees of any suit or claims related thereto) incurred by
VENDOR as a result of persons being injured or property being damaged: (1) as
a result of OCSD's failure to observe the aforesaid safety requirements; or(ii)
due to use of the product for materials or products not specified in the Scope of
Work/Technical Specifications; or(iii) use of non-original replacement parts not
specifically authorized in writing by VENDOR; or(iv) due to changes in the
Equipment made by OCSD without VENDOR's specific authorization. If the
Preselection Agreement P1-101
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terms of the Scope of Worklrechnical Specifications do not require VENDOR to
install and/or commission the Equipment, OCSD shall permit VENDOR to have
an engineer on site during commissioning to perform a health and safety check,
otherwise VENDOR assumes full responsibility for operation, training and
verification of all aspects of health and safety with respect to the Equipment.
16. Proprietary and Confidential Information.
16.1 All drawings, notebooks, operating data, specifications, and other information,
data and material ("Information") fumished to OCSD by VENDOR shall remain
the proprietary and confidential property of VENDOR, and shall be used by
VENDOR only with respect to the Equipment covered by the Agreement and not
in connection with any other project. Information shall not be made available to
any third party without VENDOR's prior written consent.
16.2 In the event VENDOR refuses to provide consent to disclose information requested
pursuant to a Public Records Act request, VENDOR agrees to defend, indemnify,
and hold harmless OCSD, its directors, employees, and agents, against any claim
or lawsuit involving allegations of violation(s) of the Public Records Act.
16.3 OCSD shall not, nor knowingly permit any third party to reverse engineer
Vendor's Equipment. Any information shall be disclosed by OCSD to its
employees, consultants, contractors, or subcontractors on a need-to-know basis
for the operation, maintenance, and repair of the Equipment. Intellectual
property or patent rights which may be obtained on the basis of the Information
or the Equipment shall remain the exclusive property of VENDOR.
17. Patent Infringement
17.1 VENDOR warrants that Equipment furnished hereunder and the sale or use
thereof will not infringe any United States apparatus patent or misappropriate any
third party intellectual property rights. VENDOR shall defend any suit or
proceeding brought against OCSD for any alleged infringement and to pay all
costs, attorney fees, and damages relating thereto provided that OCSD has
given VENDOR prompt written notice of such action, all necessary assistance in
the defense thereof and the right to control all aspects of the defense thereof
Including the right to settle or otherwise terminate such action on behalf of
OCSD. VENDOR shall have no obligation hereunder and this provisions shall
not apply to: (i) any Equipment which has been modified or combined with other
goods or process not supplied by VENDOR; (it) any Equipment supplied
according to a design, other than a VENDOR design, required by OCSD; (III) any
products manufactured by the Equipment; (iv) any patent issued after the date
hereof; or(v) any action settled or otherwise terminated without the prior written
consent of VENDOR. If, in any such action, the Equipment is held to constitute
an infringement, VENDOR shall, at its option and its own expense, procure for
OCSD the right to continue using said Equipment or modify or replace it with
non-infringing Equipment or remove it and refund the portion of the price
allocable to the infringing Equipment. THE FOREGOING PARAGRAPHS
STATE THE ENTIRE LIABILITY OF VENDOR AND EQUIPMENT
MANUFACTURER FOR ANY PATENT INFRINGEMENT.
Preselection Agreement P11-101
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18. Acceptance
18.1 Acceptance shall be deemed completed once VENDOR meets all the requirements
as set forth in the subsequent Information for Bid, and the Equipment successfully
operates as set forth in the Scope of Work/Technical Specifications. In the event,
due to no fault of the Vendor, acceptance testing is not conducted within 30
months from delivery of Equipment to site or storage, OCSD shall release all
retention amounts withheld for Equipment delivered and/or work performed
pursuant to the Information for Bid specifications.
19. Licenses, Permits. Ordinances and Regulations
19.1 VENDOR represents and warrants to OCSD that it has obtained all licenses,
permits, qualification and approvals of whatever nature that is legally required to
engage in this work. Any and all fees required by State, County, City and/or
municipal laws, codes and/or tariffs that pertain to work performed under the
terms of this Agreement will be paid by VENDOR.
20. Applicable Laws and Regulations
20.1 VENDOR shall comply with all applicable federal, state, and local laws, rules,
and regulations. The Equipment, including their design, installation, use and
operation, will comply with all applicable governmental laws, regulations,
executive orders, ordinances and restrictions in force at the time of the execution
of this Agreement. OCSD will notify VENDOR of any state or local law,
regulation, executive order, ordinance or restriction that goes above and beyond
those as stated by federal agencies. However, other than as expressly agreed
herein, VENDOR does not guarantee compliance with, nor will VENDOR incur
any liability for failure of the Equipment to comply with any federal, state or local
pollution control laws (which shall include effluent or utility control laws, rules,
regulations, codes or standards; provided, however, that the Equipment will
comply with any specific Equipment emission guarantees which form part of the
Scope of Work/Technical Specifications. VENDOR also agrees to indemnity and
hold harmless from any and all damages and liabilities assessed against OCSD
as a result of VENDOR'S noncompliance therewith
20.2 VENDOR shall perform all work under this Agreement in strict conformance with
applicable federal, state, and local regulatory requirements including, but not
limited to, 40 CFR 122, 123, 124, 257, 258, 260, and 261, Title 22, 23, and
California Water Codes Division 2.
21. Public Contracts Law
21.1 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 performed for each craft or type of work needed to execute this
Agreement. VENDOR agrees that not less than said prevailing rates shall be paid
to workers employed on this Agreement as required by Labor Code Section 1774
of the State of California.
Preselection Agreement P1-101
_11_
22. MISCELLANEOUS
22.1 Governing Law. This Agreement shall be governed by and interpreted under the
laws of the State of California and the Parties submit to jurisdiction in Orange
County, in the event any action is brought in connection with this Agreement or
the performance thereof.
22.2 Breach. The waiver of either Party of any breach or violation of, or default under,
any provision of this Agreement, shall not be deemed a continuing waiver by
such Party of any other provision or of any subsequent breach or violation of this
Agreement or default thereunder. Any breach by VENDOR to which OCSD does
not object shall not operate as a waiver of OCSD'S rights to seek remedies
available to it for any subsequent breach.
22.3 Remedies. Except as otherwise provided in this Agreement, In addition to other
remedies available in law or equity, if the VENDOR repudiates its obligations
under this Agreement, or OCSD rejects the Equipment or Services, OCSD may
(1) cancel the Agreement; (2) recover whatever amount of the purchase price
OCSD has paid, and/or(3) "cover" by purchasing, or contracting to purchase,
substitute Equipment or Services for those due from VENDOR. In the event
OCSD elects to "cover" as described in (3), OCSD shall be entitled to recover
from VENDOR as damages the difference between the reasonable cost of the
substitute Equipment or Services and the agreement price.
22.4 Survival. The provisions of this Agreement dealing with Payment,Warranty, and
Forum for Enforcement, shall survive termination or expiration of this Agreement.
22.5 Severabilitv. If any section, subsection, or provision of this Agreement, or any
agreement or instrument contemplated hereby, or the application of such section,
subsection, or provision is held invalid, the remainder of this Agreement or
instrument in the application of such section, subsection or provision to persons
or circumstances other than those to which it is held invalid, shall not be affected
thereby, unless the effect of such invalidity shall be to substantially frustrate the
expectations of the Parties.
22.6 Disclosure. VENDOR agrees not to disclose, to any third party, data or information
generated from this Project without the prior written consent from OCSD.
22.7 Damage to OCSD'S Property. Any of OCSD'S property damaged by VENDOR,
any subcontractors or by the personnel of either will be subject to repair or
replacement by VENDOR at no cost to OCSD.
22.8 Safety and Accident Prevention Safety and Accident Prevention. VENDOR shall
adhere to the Safety Requirements in Exhibit "A", if applicable.
22.9 Attorney's Fees. If any action at law or inequity or K 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 he may be entitled.
Preselection Agreement P1.101
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22.10 Authority to Execute. The persons executing this Agreement on behalf of the
Parties warrant that they are duly authorized to execute this Agreement and that
by executing this Agreement, the Parties are formally bound.
22.11 Drug-Free Workplace. All employees of VENDOR who will work at OCSD'S
treatment Plant 1 (Fountain Valley) and/or Plant 2 (Huntington Beach) must
adhere to the California Drug-Free Workplace Act, Sections 8350 through 8357.
22.12 Read and Understood. By signing this Agreement, VENDOR represents that he
has read and understood the terms and conditions of the Agreement.
22.13 Entire Agreement. This Agreement constitutes the entire agreement of the Parties
and supersedes all prior written or oral and all contemporaneous oral agreements,
understandings, and negotiations between the Parties with respect to the subject
matter hereof.
22.14 Notices. All notices under this Agreement must be in writing. Written notice shall
be sent by registered or certified mail, postage prepaid, return receipt requested, or
by any other overnight delivery service which delivers to the noticed destination
and provides proof of delivery to the sender. Any facsimile notice must be followed
within three (3) days by written notice. All notices shall be effective when first
received at the following addresses:
OCSD: Natasha Dubrovski, Principal Contracts Administrator
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708-7018
VENDOR: Michael J. Vick, President
GEA Mechanical Equipment US, Inc.
GEA Wesffalia Mechanical Division
100 Fairway Court
Northvale, NJ 07847
23.0 Except as otherwise provided in this Agreement, in no event shall either OCSD,
VENDOR, its subcontractors or subsuppliers be liable in contract or in tort or under
any other legal context or theory, including negligence and strict liability,for any
special, punitive, indirect, incidental or consequential damages of any kind or
character, including, but not limited to, loss of use of productive facilities or goods,
costs of product recall, plant downtime, damage to or loss of product, chemicals,
catalysts,feedstock or other raw materials, loss of revenues or profits or loss under
purchases or contracts made in reliance on the performance or non-performance of
the Equipment,whether suffered by OCSD, VENDOR or any third party. OCSD,
VENDOR's and its subcontractors' and subsuppliers' aggregate responsibility and
liability,whether arising out of contract or tort or any other legal context or theory,
including negligence and strict liability, all claims for breach of any warranty or
guarantee, failure of performance or delay in performance by either party or
performance or non-performance of the Equipment shall not exceed the Agreement
price for the Equipment.
Preselection Agreement P11-101
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in duplicate. One
counterpart each has been delivered to OCSD and VENDOR. All portions of the Agreement
Documents have been signed by OCSD and VENDOR on their behalf on the day and year
indicated below.
ORANGE COUNTY SANITATION DISTRICT
Dated: 2 Z By:
General Counsel (A proved As to Form)
Dated: Z By:
�ChAair Board of rectors
Dated: 2— By: '"I . L SLR. —'
Cl k of the So d
GEA MECHANIC EQUIPMEN71Z
Dated:— 6,Z 01 Z By: (,/�
Dated: 14 By:
,C ORANGE COUNTY NITATION DISTRICT
Dated: /o �- By:
ontracts, Purchasing and Materials
Management Division Manager
NKD:ms
EDM&
Exhibit"A" Scope of Work/Technical Specifications
Exhibit "B" VENDOR Cost Proposal
Exhibit"C" Assignment of Agreement, Consent to Assignment, and Acceptance of Assignment
Exhibit "D" Acknowledgement of Insurance Requirements
Pre-Selection Agreement P1-101
-14-
EXHIBIT "B"
COST PROPOSAL
EXHIBIT "Bar
G�1
GEA Mechanical Equipment US, Inc.
GEA Wesffalla Separator Division
100 Faimay Coun
Nodheale,NJ 07847
Phone(201)767-3900
F.(201)767-3901
Saloa.waua®gea.00m
July 12, 2012
Orange County Sanitation District
10644 Ellis Avenue
Fountain Valley,CA 92 708-7 01 8
Attention: Umesh Murthy
Centrifuge Cost Proposal Project P1-101 Specification sedion 11369
Item #5 Thickening Centrifuges
Furnish,factory test and deliver three (3)Thickening Centrifuge systems, including centrifuges,
motors, variable frequency drives, lubrication systems, control panels, sensors and monitoring
equipment, sludge density meters, centrals and discharge chutes, spare parts,tools and all
other accessories and appurtenances, training and onsite services in accordance with Section
11369, Thickening Centrifuges and in conformance with the contract documents for the lump
sum price of$ 12,852,007.
Item 5a Thickening Centrifuge Spare Rotating Assembly
Furnish, factory test and deliver one spare rotating assembly for the Thickening Centrifuge
systems including rotating assembly, bearings,storage supports and all other accessories and
appurtenances in accordance with Section 11369, Thickening Centrifuges and in conformance
with the contract documents for the lump sum price of$ 1,452,000.
Midwest Office South Office Southwest Orrice West Office
725 Tollgate Read 4725 Lakeland Comnieroe Po,114 2408 Timberioch Place,CA 555 Baldwin Road
Elgin,Illinois 80123 Lakeland.Fonda 33605.76W The Woodlands,Texas 77380 Patlerson,Celdomle 95363
Phone:(830)5034700 Pion:(883)603.8900 Phone:(281)48 7900 Phone: (209)8955300
F.:(e30)SM-4701 Fax:(883)803.8801 F. (281)48579M Fax:(209)8g5H101
G-=1
5b Thickening Centrifuge Operations and Maintenance Assistance
Fumish operations and maintenance assistance associated with the Thickening Centrifuge
systems, Including parts and materials, In accordance with Section 11369 and in conformance
with the contract documents for the lump sum price of$361,000.
Total Price: $14,666,007,00
GEA Mechanical E u�nt S nc,
Richard e�PE
Market Manager, Environm nt" Technology
EXHIBIT "C"
ASSIGNMENT OF CONTRACT,
CONSENT TO ASSIGNMENT,
AND ACCEPTANCE OF ASSIGNMENT
EXHIBIT "C"
ASSIGNMENT OF CONTRACT, CONSENT TO ASSIGNMENT,
AND ACCEPTANCE OF ASSIGNMENT
Sludge Dewatering and Odor Control at Plant No. 1, Project No P1-101
Pre-Selection Agreement
This assignment will be effective on the Effective Date of the Agreement between the Orange
County Sanitation District (OCSD) and the construction contractor (Contractor). The Pre-
Selection Agreement by and between OCSD and GEA Westfalia Separator, Inc. (Vendor) for
furnishing Equipment and Services under the Agreement Documents for centrifuges meeting
OCSD's needs for co-thickening sludge is hereby assigned, transferred, and set over to
(Contractor). Contractor hereinafter
shall be totally and completely responsible for the performance of OCSD and for the duties,
rights and obligations of OCSD under the terms of the Agreement between OCSD and Vendor.
ASSIGNMENT DIRECTED BY: ORANGE COUNTY SANITATION DISTRICT
(Name, Title)
ASSIGNMENT CONSENT BY: GEA WESTFALIA SEPARATOR, INC. ('VENDOR")
(Name, Title)
CONTRACTOR hereby acknowledges and accepts the assignment of the Pre-Selection
Agreement by and between OCSD and Vendor and shall hereinafter assume the duties, rights,
and obligations of OCSD set forth therein.
ASSIGNMENT ACKNOWLEDGED AND ACCEPTED BY: CONTRACTOR
(Name, Title)
Attachment'C'—Assignment OfContract,Consent To Assignment,AM Acceptance Of Assignment Paget oft
EXHIBIT " D"
ACKNOWLEDGMENT OF INSURANCE
REQUIREMENTS AND CERTIFICATION
OF ABILITY TO PROVIDE COVERAGES
SPECIFIED
ATTACHMENT 66W Return to Agenda
ACKNOWLEDGMENT OF INSURANCE REQUIREMENTS
AND CERTIFICATION OF ABILITY TO
PROVIDE COVERAGES SPECIFIED
I, 11/�GItAE� S. VIG � the �(lC?siOetii
n (Michael J. Vick, President)
of ISC� '� /LZCf�/}iilkA � U7't/C. certify that the
(GEA Mechanical Equipment US, INC)
Insurance Requirements set forth in Section 11 of the Pre-Selection Agreement,
Section 16 of the Contract Agreement of the P1-101 Invitation for Bid (IFB) and other
provisions of the P1-101 (IFB) as applicable to the insurance requirements have been
read and understood and that our insurance company(ies)
AL LSAN2- &CARAT (Z.T,W u S Aril �Z u2TGld N 0214 A1)%e ZCA
[fill in name(s) of insurance company(ies)]
is/are able to provide the coverages specified.
SOure i ant, Secretary,
Manager, Own r r Representative
PI ( 61fY
Date