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HomeMy WebLinkAboutReview of Liquidated Damages - L.D.Docsa - WWTP Primary Clarifier Upgrades & Equipment Rehab 111-071INTER -OFFICE MEMORANDUM DEPARTMENT OF PUBLIC WORKS DIVISION OF ENVIRONMENTAL SERVICES TO: Members of the Board of Public Works Eric Horvath, Director of Public Works Michael Schmidt, Board of Public Works Attorney FROM: Al Greek, Director of Utilities Jacob M. Klosinski, Assistant City Engineer SUBJECT: Agenda Request Form — Review of Liquidated Da Project No. 111-071 Wastewater Treatment Plant Rehabilitation and Equipment Upgrades DATE: July 19, 2016 Board of Public Works Members: APPROVED Baerd of Public Works 2 The City of South Bend Division of Utilities has reached substantial and final completion for Project No. 111-071 WWTP Primary Clarifier Rehabilitation and Equipment Upgrades. The General Contractor, L.D. Docsa & Associates, completed their project work as required by the Contract Documents to the satisfaction of the Division of Utilities and the Engineer of Record. Before the project can move to final closeout, the Board of Public Works must review its previous discussions on the subject of liquidated damages for the delays associated with the construction work at Primary Clarifier Tank 5. The work at Primary Clarifier Tank 5 experienced delays as a result of delayed equipment delivery from Evoqua Water Technologies, LLC (formerly Siemens). Evoqua originally quoted a 15-week delivery schedule. The first set of parts arrived 31 weeks after the approval of shop drawings. Background On November 6, 2012, AEA Investors LP acquired Siemens Water Technologies, LLC. Bids for the subject project were opened on December 11, 2012 and the project was awarded on December 20, 2012. It was uncertain at that time how the acquisition would affect the project, but the City was assured through shop drawing submittals and discussion with L.D. Docsa, that Evoqua committed to a 15-week delivery schedule. Evoqua did not deliver the equipment as scheduled. Performance of the subcontractors and suppliers are the responsibility of the General Contractor, per the Contract Documents (Section 00 72 13, 12.03 B). Equipment delivery delayed the start of construction at Primary Clarifier Tank 5 until late October 2013. Delays associated with equipment delivery and inclement weather pushed the completion of the first tank into Spring/Summer 2014. The Shutdown period for each Primary Clarifier was set at 74 days per Tank. This included a 14 day dual shutdown period for adjacent clarifiers for walkway work and demolition activities. The only tank that experienced significant delays was Primary Clarifier Tank 5. All other Primary Clarifiers were completed within the specified shutdown period required by the Contract. In addition to potential liquidated damages for Primary Clarifier Tank 5, the City incurred additional consulting expenses of $39,510.00 for inspection and construction services. Per Section 00 52 13 Item 4.05 A, the contractor shall pay Owner for costs reasonably incurred by Owner for engineering and inspection forces employed by Owner relative to the Work. Summary of Liquidated Damages History for Primary Clarifier Tank 5 • The Primary Clarifier Tank 5 Shutdown lasted 270 calendar days (October 21, 2013 through July 18, 2014). • Potential liquidated damages are assessable up to 196 calendar days (270 days total — 74 days allowed = 196 days). • The Board of Public Works approved Change Order No. 3 which addressed 98 days of inclement weather from December 2013 through April 2014. Since Primary Clarifier work occurred during the inclement weather period, Utilities understands this adjustment to impact the potential liquidated damages calendar days. The number of days assessable for liquidated damages should be adjusted to a maximum of 98 calendar days. • Potential liquidated damages: 98 days x $1,500.00 per day = $147,000.00. • Potential special damages for additional consultant fees, $39,510.00. • Total potential liquidated damage + potential special damages = $186,510.00 At the time liquidated damages discussions were entertained by the Board of Public Works in 2014, the Board of Public Works held a position to hold the assessment of any liquidated damages until later in the project. L.D. Docsa Associates was allowed an opportunity to implement a recovery schedule and increased labor on the project in order to gain back valuable time they lost due to equipment delivery. The Division of Utilities observed a change in the Contractor's approach to complete the work. Additional man hours and longer work weeks resulted in the Contractor meeting its schedules for Primary Clarifier Tanks 1, 2, 3, 4, 6, 7, and 8. Primary Clarifier Tank 5 was the only Primary Clarifier Tank that did not meet the Shutdown Schedule. It is noted that the Board of Public Works assessed a liquidated damage of $8,750.00 for L.D. Docsa Associates not meeting the shutdown schedule associated with the Hydrogritter Installation. This liquidated damage assessment was agreed upon with Change Order No. 4 (Approved by BOPW on July 14, 2015). Summary of Current Contract Costs and Payments Original Contract: $5,043,270.00 Net Changes by Change Orders: $ 107,270.51 Net Percentage Increase by Change Orders: +2.12% Current Contract Total: $5,150,540.51 Recommendations The Division of Utilities observed the contractor's good faith efforts to accelerate the remaining construction schedule and complete all remaining Primary Clarifier Tank construction efforts within the required Shutdown Period. The Contractor met the required shutdown period for all remaining tanks even with addition of structural concrete repairs identified during construction. An increase in labor coupled with the Contractor's improved communication through the duration of the project were important indicators that the Contractor made a conscious effort to provide a quality project for the City of South Bend and made every effort to accelerate the project schedule given a slow start and inclement weather. The Division of Utilities presents this information to the Board of Public Works seeking direction regarding these potential liquidated damages. The Board of Public Works has the authority, per the Contract Documents, to assess up to $147,000 for liquidated damages for the extension of the shutdown period of Primary Clarifier Tank 5 and $39,510.00 for special damages for engineering and inspection fees incurred due to the extension of the shutdown period of Primary Clarifier Tank 5. The Division of Utilities requests that the Board of Public Works consider L.D. Docsa's good faith efforts and the Contractor's implementation of the recovery schedule when considering the assessment or reduction of potential liquidated damages. The Division of Utilities provides a recommendation for consideration to reduce the total liquidated damages and special damages from $186,510 to a value not to exceed $100,000 as the recommended settlement for the project delays. This recommendation if accepted would extend the total recovery for losses due to the extension of time to $108,750.00 (inclusive of the $8,750 for Hydrogritter liquidated damages which were already assessed). The Division of Utilities is prepared to act as the Board of Public Works mediator in communication with L.D. Docsa on this matter if directed by the Board of Public Works. Recommendations reoardina Final Retainage As of July 19, 2016, the Division of Utilities has processed all pay applications or has pay applications in hand that release all remaining funds except final retainage for the subject project. The remaining balance on the contract prior to the Board of Public Works' decisions regarding liquidated damages and special damages is $351,049.09. The Division of Utilities recommends a partial release of retainage with the exception of the value of potential liquidated damages and special damages. Remaining Balance $351,049.09 Liquidated Damages and Special Damages $186,510.00 Hold until Resolution Recommended Partial Release of Retainage $164,539.09 The Division of Utilities asks for direction regarding the partial release of retainage. If there are any questions regarding the subject project, please contact AI Greek (Ext. 4210) or Jacob M. Klosinski (Ext. 9496) at the Division of Utilities. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date Name July 19, 2016 Department Div. of Env. Services BPW Date July 26, 2016 Phone Extension (574) 235-9496 Jacob M. Klosinski Legal Attorney Name Michael Schmidt Controller ® Controller review is required for all Contracts $5,000.00 or more and greater than one year in length per the City Purchasing Policy Purchasing ® Carol Kurzhal Check the Appropriate Item Type — Required for All Submissions ❑ Agreement ❑ Contract ❑ Proposal ❑ Addendum ❑ Professional Services ❑ Resolution ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Change Order No. ❑ C/O & PCA No. ❑ PCA ❑ Ease/Encroach. ❑ Traffic Control ® Other: Review Liquidated Damaees Discussions Required Information Company or Vendor Name L.D. Docsa Associates, Inc. New Vendor MBE/WBE Contractor Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Amount of J Yes N No ❑ If Yes, Approved by Purchasing I MBE ❑ WBE W WTP - Primary Clarifier Upgrades and Equipment Rehabilitation 111-071 Divison of Utilities - Wastewater Capital Fund 642-0630-415-43-66 Division of Utilities is providing its formal review and recommendations regarding the subject of liquidated damages and special damages for Project. No. 111-071 WWTP Primary Clarifier Upgrades and Equipment Rehabilitation. Division of Utilities seeks the Board direction. ❑ Required Contractor's Certification Form Attached (Non - Collusion, Non -Discrimination, Non -Debarment, E-Verifv. Iran, etc.) Increase Decrease Previous Amount Current Percent of Change: New Amount Total Percent of Change: Copy Original ® ❑ ® ❑ ® ❑ Dispersal After Approval Al Greek Jacob M. Klosinski Carol Kurzhal