NOW, THEREFORE, THE BOARD OF TRUSTEES OF THE TWIN RIVERS UNIFIED SCHOOL DISTRICT DOES HEREBY RESOLVE, DETERMINE, AND ORDER AS FOLLOWS:

Transcription

1 RESOLUTION NO. 652 RESOLUTION OF THE BOARD OF TRUSTEES OF THE TWIN RIVERS UNIFIED SCHOOL DISTRICT APPROVING THE AWARD OF PRECONSTRUCTION SERVICES CONTRACT AND LEASE-LEASEBACK CONSTRUCTION CONTRACT FOR THE FC JOYCE ELEMENTARY SCHOOL MISSION POSSIBLE PROJECT WHEREAS, the Twin Rivers Unified School District ( District ) plans to construct the FC JOYCE ELEMENTARY SCHOOL MISSION POSSIBLE PROJECT ( Project ) utilizing the leaseleaseback construction delivery method, whereby the District will lease a site that it owns to a contractor who will construct improvements thereon and lease the project and the underlying site back to the District; and WHEREAS, Education Code Section authorizes the governing board of a school district to let to any person, firm or corporation any real property belonging to the District if the instrument by which the property is let requires the lessee therein to construct on the demised premises, or provide for the construction thereon of, a building or buildings for the use of the school district during the term of the lease, and provides that title to that building shall vest in the school district at the expiration of that term; and WHEREAS, the award of any lease-leaseback contract pursuant to Education Code section is to be based on a competitive solicitation process to the proposer providing the best value to the school district, taking into consideration the proposer s demonstrated competence and professional qualifications necessary for the satisfactory performance of the services required; and WHEREAS, pursuant to Education Code section 17400(b)(1), best value means a competitive procurement process whereby the selected proposer is selected on the basis of objective criteria for evaluating the qualifications of proposers with the resulting selection representing the best combination of price and qualifications; and WHEREAS, on April 25, 2017 the District s Board of Trustees approved the Request for Proposals for the Project containing required procedures and guidelines for evaluating the proposals and qualifications of the proposers, including relevant experience, safety record, price proposal, and other factors specified by the District; and WHEREAS, in accordance with the RFP, the District convened a Proposal Evaluation Committee, which conducted a two-step process in evaluating the proposals for the Project. The first step of the evaluation process was a review and scoring of proposals and determination of the firms to be interviewed. The second step of the evaluation process was interviews and, as appropriate, adjustments to the first-step scores; and WHEREAS, the Proposal Evaluation Committee evaluated the qualifications of the proposals based upon the criteria and evaluation methodology set forth in the RFP, assigned scores to each proposal, and once the evaluation process was complete, the District determined the proposer with the best value score; and

2 WHEREAS, based on the Proposal Evaluation Committee s assessment of proposals, LANDMARK CONSTRUCTION ( Contractor ) achieved the highest best value score; and WHEREAS, prior to the construction of the Project, the District wishes to engage Contractor for the performance of preconstruction services defined under Education Code Section 17400(b)(4) as advice during the design phase including, but not limited to, scheduling, pricing, and phasing to assist the school district to design a more constructible project; and WHEREAS, pursuant to Education Code Section 17406(b)(1), for purposes of utilizing preconstruction services, a school district may enter into an instrument created pursuant to Education Code Section 17406(a)(1) only if the instrument provides that no work for which a contractor is required to be licensed in accordance with Article 5 (commencing with Section 7065) of Chapter 9 of Division 3 of the Business and Professions Code and for which Division of the State Architect approval is required can be performed before receipt of the required Division of the State Architect approval; and WHEREAS, as set forth in the Preconstruction Services Agreement attached hereto as Exhibit A, the preconstruction services do not require that Contractor be licensed in accordance with Article 5 (commencing with Section 7065) of Chapter 9 of Division 3 of the Business and Professions Code and for which Division of the State Architect approval is required; and WHEREAS, in order to construct the Project using the lease-leaseback delivery method, it is necessary that the District enter into a site lease, in which the site will be leased to the Contractor; a sublease which provides for the sublease of the site and the lease of the project by the Contractor back to the District; and a construction services agreement that contains construction provisions with which Contractor shall comply with respect to the construction of the Project (the site lease, sub lease, and construction services agreement are hereinafter collectively referred to as the Lease-Leaseback Documents and attached hereto as Exhibit B ). NOW, THEREFORE, THE BOARD OF TRUSTEES OF THE TWIN RIVERS UNIFIED SCHOOL DISTRICT DOES HEREBY RESOLVE, DETERMINE, AND ORDER AS FOLLOWS: Section 1. Recitals. All of the recitals herein contained are true and correct. Section 2. Determination of Best Value Contractor. The Twin Rivers Unified School District implemented a Request for Proposals and, in accordance with Education Code section 17406, determined that LANDMARK CONSTRUCTION ( Contractor ) received the best value score based on the evaluation of objective criteria contained in the RFP. Section 3. Award of Preconstruction Services for the Project. The District s Board of Trustees hereby awards the Preconstruction Services Agreement, attached hereto as Exhibit A, to Contractor for the provision of preconstruction services for the FC JOYCE ELEMENTARY SCHOOL MISSION POSSIBLE PROJECT ( Project ) in the amount of $ 15,000 (Fifteen thousand dollars.) Section 4. Leaseback Contract. Approve Not-to-Exceed Guaranteed Maximum Price and Award of Lease- The District s Board of Trustees hereby approves the Not-to-Exceed TWIN RIVERS USD RESOLUTION NO. 652 FC JOYCE MISSION POSSIBLE LEASE LEASEBACK 2

3 Guaranteed Maximum Price ( GMP ) of $ 3,239,402 and the award of the lease-leaseback contract to Contractor for the Project. The Lease-Leaseback Documents which include the Sublease, Site Lease and Construction Services Agreement are attached hereto as Exhibit B. Section 5. Other Acts; Delegation. The District s Board of Trustees hereby approves a delegation of authority and appoints its Superintendent, or the designee of the Superintendent, who is/are hereby authorized and directed to carry out the intent of this Resolution. Said delegation shall be valid until otherwise rescinded by the Board. Section 6. Effective Date. This Resolution shall take effect upon adoption. APPROVED, PASSED AND ADOPTED by the Board of Trustees of the Twin Rivers School District this 16 th day of May, 2017, by the following vote: AYES: NOES: ABSENT: ABSTAINED: I, Michelle Rivas, President of the Twin Rivers Unified School District Board of Trustees, do hereby certify that the foregoing is a full, true, and correct copy of the resolution passed and adopted by said Board at a regularly scheduled and conducted meeting held on said date, which resolution is on file in office of said Board. President of the Board of Trustees Twin Rivers Unified School District I, Michael Baker, Clerk of the Board of Trustees of the Twin Rivers Unified School District, do hereby certify that the foregoing Resolution was introduced and adopted by the Board of Trustees of the Twin Rivers Unified School District at a regular meeting thereof held on the 16th day of May, 2017, by the following forgoing vote. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Twin Rivers Unified School District this day of, Clerk of the Board of Trustees Twin Rivers Unified School District TWIN RIVERS USD RESOLUTION NO. 652 FC JOYCE MISSION POSSIBLE LEASE LEASEBACK 3

4 EXHIBIT A PRECONSTRUCTION SERVICES AGREEMENT TWIN RIVERS USD RESOLUTION NO. 652 FC JOYCE MISSION POSSIBLE LEASE LEASEBACK 4

5 TWIN RIVERS UNIFIED SCHOOL DISTRICT PRE-CONSTRUCTION SERVICES AGREEMENT FC JOYCE ELEMENTARY SCHOOL MISSION POSSIBLE PROJECT DSA # This Pre-Construction Services Agreement ( Agreement ) is entered into as of May17, 2017 ( Effective Date ), by the Twin Rivers Unified School District, a California public school district duly organized and validly existing under the Constitution and laws of said State of California (hereinafter the District ), and LANDMARK MODERNIZATION CONTRACTORS, INC., a California corporation duly organized and existing under the laws of the State of California, (hereinafter the Contractor ), for the purposes of providing value design service work associated with construction documents and plans (collectively, Plans and Specifications ) for the FC JOYCE ELEMENTARY SCHOOL MISSION POSSIBLE PROJECT DSA # ( Project ). WHEREAS, the Project consists of the FC JOYCE ELEMENTARY SCHOOL MISSION POSSIBLE PROJECT DSA # ; WHEREAS, Contractor and District desire to enter into a lease-leaseback arrangement for the construction of the Project pursuant to Education Code section 17406, which arrangement will be documented, if at all, by a Lease and Sublease with attachments, and Construction Services Agreement ( Lease-Leaseback Documents ). WHEREAS, Education Code section states that the District must have adopted the Plans and Specifications for the Project prior to entering into the Lease-Leaseback Documents. WHEREAS, Contractor desires to provide consulting services regarding the design of the Project, including a constructability review and value engineering work ( Pre-Construction Services or Services ) as more fully described in Article II below, in conjunction with the Plans and Specifications prepared by PBK ( Architect ) to facilitate, and in preparation for, the successful development and construction of the Project. WHEREAS, Contractor has the knowledge and experience necessary to perform the Pre-Construction Services set forth in this Agreement. WHEREAS, the Pre-Construction Services set forth in this Agreement do not require that Contractor be licensed in accordance with Article 5 (commencing with Section 7065) of Chapter 9 of Division 3 of the Business and Professions Code and for which Division of the State Architect approval is required. WHEREAS, the parties acknowledge that the Contractor and District will negotiate and approve Lease-Leaseback Documents which utilize a guaranteed maximum sum equal to the entire construction budget for the Project, and which guaranteed maximum sum will not include the fee provided herein, and the parties also acknowledge that the District may opt not to enter into Lease- Leaseback Documents or otherwise proceed with the Project with or without Contractor, for any reason or no reasons, in District s sole and absolute discretion. PRECONSTRUCTION SERVICES AGRMT LANDMARK FC JOYCE MISSION POSSIBLE PROJECT MAY

6 NOW, THEREFORE, the parties hereto agree as follows: CONTRACTOR S SERVICES AND RESPONSIBILITIES The Contractor s Services shall consist of those Services performed by the Contractor, Contractor s employees and Contractor s consultants for the Project as enumerated in Article II of this Agreement. SCOPE OF CONTRACTOR S SERVICES 1. The Contractor s Services include those described in this Article. 2. Contractor shall provide a written preliminary evaluation of the Project and schedule requirements. Such evaluation shall include alternative approaches to design and construction of the Project. Contractor shall provide a preliminary Project schedule ( Project Schedule ) for review and approval by the District. The Project Schedule shall include all activity sequences and durations, milestone dates including estimating, bidding (if applicable) and submittal of the guaranteed maximum price proposal, constructability review and value engineering work, and delivery of materials or equipment requiring long-lead time procurements. The Project Schedule shall be updated monthly and all changes from previous schedules must be indicated on the revised Project Schedule. 3. Contractor shall review the Plans and Specifications to identify and call out all deficiencies, incongruities and inconsistencies that may affect constructability of the Project, including but not limited to design and specification omissions, incomplete and/or inconsistent plans, details and specifications, and any lack of coordination, together with all other appropriate, necessary and/or required services in accordance with the applicable standard of care, excluding only responsibility for the professional negligence of any licensed engineer or architect in the preparation of the Plans and Specifications for the Project. 4. Contractor shall attend regular Project coordination meetings during Project development between District s representative(s), and other Consultants of the District as required. Contractor shall make formal presentations to the governing board of District, if required. 5. Contractor shall provide a detailed cost estimate for the Construction Budget with supporting data, for review and approval by the District. The cost estimate shall identify all costs for the Project, including all trades and unit costs. Contractor shall also identify all allowances, contingencies, general condition costs, and fees. All fees are to be represented by either fixed amounts or percentages and shall exclude all Pre-Construction Services. If any cost estimate submitted to the District exceeds previously approved estimates for the Construction Budget, if any, the Contractor shall make appropriate recommendations to the District. Contractor shall consider operating or maintenance costs when selecting systems for the District. PRECONSTRUCTION SERVICES AGRMT LANDMARK FC JOYCE MISSION POSSIBLE PROJECT MAY

7 6. The duties, responsibilities and limitations of authority of the Contractor shall not be restricted, modified or extended without written agreement between the District and Contractor other than through the Lease-Leaseback Documents, which will be entered into at a later time. 7. District shall not be responsible to Contractor for any claims or damages resulting from District s failure to enter into the Lease-Leaseback Documents. 8. Contractor shall have access to the work at all times. 9. Contractor s Services shall include attendance at all regular meetings with the District and any District Consultants, and provide recommendations on: construction feasibility; quick action to minimize adverse effects of labor or material shortages; and knowledge of time requirements for procurement, installation, and construction cost including estimates of alternative designs or materials and possible economic savings or costs. 10. Develop proposed Guaranteed Maximum Price ( GMP ) with full detail, bid results, and notes, including bid alternates and associated pricing. DISTRICT S RESPONSIBILITIES The District shall provide to the Contractor information actually known to the District, without obligation or duty to undertake any investigation, research, inspection, inquiry, regarding requirements for the Project, including information regarding the District s objectives, schedule, constraints and criteria. TERMINATION 1. This Agreement may be terminated by either party upon fourteen (14) days written notice to the other party in the event of a substantial failure of performance by such other party, including insolvency of Contractor or if the District should decide to abandon or indefinitely postpone the Project. 2. In the event of a termination based upon abandonment or postponement by District, the District shall pay to the Contractor for all Services performed and all expenses incurred under this Agreement supported by documentary evidence, including payroll records and expense reports up until the date of the abandonment or postponement, plus any sums due the Contractor for Board approved extra Services. In ascertaining the Services actually rendered hereunder up to the date of termination of this Agreement, consideration shall be given to both completed work and work in process of completion and to complete and incomplete drawings and other documents, whether delivered to the District or in the possession of the Contractor. 3. This Agreement may be terminated without cause by District upon fourteen (14) days written notice to the Contractor. In the event of a termination without cause, the District shall pay to Contractor for all Services performed and all expenses incurred under this Agreement PRECONSTRUCTION SERVICES AGRMT LANDMARK FC JOYCE MISSION POSSIBLE PROJECT MAY

8 supported by documentary evidence, including payroll records, and expense reports up until the date of notice of termination, plus any sums due the Contractor for Board approved extra Services. In ascertaining the Services actually rendered hereunder up to the date of termination of this Agreement, consideration shall be given to both completed work and work in process of completion and to complete and incomplete drawings and other documents, whether delivered to the District or in the possession of the Contractor. Contractor and District expressly acknowledge that in the event of such termination, Contractor will not receive any additional termination costs, and that consideration for entry into this termination for convenience clause exists. 4. In the event of a dispute between the parties as to performance of the Services or the interpretation of this Agreement, or payment dispute, the parties shall attempt to resolve the dispute. Pending resolution of this dispute, Contractor agrees to continue to perform the Services diligently to completion provided the District continues to make payment to Contractor for all undisputed Services without offset. If the dispute is not resolved, Contractor agrees it will neither rescind the Agreement nor stop the progress of the Services. Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in Sacramento County in accordance with the rules of the Sacramento County Superior Court ( Arbitration Rules ). To the extent that the provisions within this Article do not conflict with the Arbitration Rules, the parties agree to all of the provisions set forth in this Article. If requested, the parties agree to permit Architect to participate in any arbitration. If the parties are unable to agree on the arbitrator within thirty (30) days of the receipt of a written request for arbitration, they shall request that the presiding judge of the Sacramento Superior Court designate one. The District shall pay one-half of the cost of the arbitration and the Contractor shall pay one-half of the cost of arbitration or, if Architect participates in the arbitration, each party shall pay one-third of the cost of arbitration. Each party shall be responsible for its own attorney s fees and costs as to any such arbitration. Any arbitrator chosen or designated must have experience in construction issues. Notwithstanding the foregoing, once a written request for arbitration has been made, each party shall have the right to conduct discovery pursuant to the procedures set forth in the Civil Discovery Act of 1986, as amended, even if an action has not been filed. COMPENSATION TO THE CONTRACTOR The District agrees to pay the Contractor for full performance of all Services contemplated under the terms of this Agreement for a fee not to exceed Fifteen thousand dollars ($15,000) ( Pre-Construction Services Fee ) which shall be invoiced and paid in accordance with this Article. Reimbursable expenses shall only be paid to Contractor with the prior written approval of the District. Following completion of the Services set forth in this Agreement, Contractor shall submit an invoice in form and substance satisfactory to the District in an amount not to exceed the Pre-Construction Services Fee identified above. District shall pay Contractor for all undisputed amounts, which are approved by the District pursuant to this Agreement, no later than thirty (30) calendar days from the date of receipt by the District of an invoice from Contractor. PRECONSTRUCTION SERVICES AGRMT LANDMARK FC JOYCE MISSION POSSIBLE PROJECT MAY

9 EMPLOYEES AND CONSULTANTS 1. Contractor shall submit, for written approval by the District, the names of any consultant firms proposed for the Project. Nothing in this Agreement shall create any contractual relation between the District and any consultants employed by the Contractor under the terms of this Agreement. 2. Contractor s consultants shall be licensed to practice in California and have relevant experience with California school design and construction during the last five (5) years. If any employee or consultant of the Contractor is not acceptable to the District, then that individual shall be replaced with an acceptable competent person at the District s request. MISCELLANEOUS 1. Contractor shall make a written record of all meetings, conferences, discussions and decisions made between or among the District, Contractor and District s Consultants during all the Project and concerning any material condition in the requirements, scope, performance and/or sequence of the work. 2. To the extent permitted by law, Contractor agrees to indemnify, defend and hold District entirely harmless from all liability arising out of: a. Any and all claims under workers compensation acts and other employee benefit acts with respect to Contractor s employees or Contractor s subcontractor s employees arising out of Contractor s work under this Agreement; and b. Liability for damages for: (1) death or bodily injury to person; (2) injury to, loss or theft of property; (3) any failure or alleged failure to comply with any provision of law; or (4) any other loss, damage or expense arising under either (1), (2), or (3) above, sustained by the Contractor or any person, firm or corporation employed by the Contractor upon or in connection with the Project, except for liability resulting from the active and primary negligence, or willful misconduct of the District, its officers, employees, agents or independent contractors who are directly employed by the District; c. Any loss, including injury or death to persons or damage to property caused by any act, neglect, default or omission of the Contractor, or any person, firm or corporation employed by the Contractor, either directly or by independent contract, including all damages due to loss sustained by any person, firm or corporation including the District, arising out of, or in any way connected with the Project, including injury or damage either on or off District property; but not for any loss, injury, death or damages caused by active and primary negligence of the District. The Contractor, at Contractor s own expense, cost, and risk, shall defend any and all claims, actions, suits, or other proceedings to the extent of the above described indemnification PRECONSTRUCTION SERVICES AGRMT LANDMARK FC JOYCE MISSION POSSIBLE PROJECT MAY

10 that may be brought or instituted against the District, its officers or employees, on any such claim or liability, and shall pay or satisfy any judgment that may be rendered against the District, its officers, agents or employees in any action, suit or other proceedings as a result thereof. 3. Contractor shall purchase and maintain policies of insurance with an insurer or insurers, qualified to do business in the State of California and acceptable to District which will protect Contractor and District from claims which may arise out of or result from Contractor s actions or inactions relating to the Agreement, whether such actions or inactions be by themselves or by any subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The aforementioned insurance shall include coverage for: Contractor shall carry Workers Compensation and Employers Liability Insurance in accordance with the laws of the State of California. a. Comprehensive general and auto liability insurance with limits of not less than ONE MILLION DOLLARS ($1,000,000) combined single limit, bodily injury and property damage liability per occurrence, including: (1) owned, non-owned and hired vehicles; (2) broad form property damage; (3) products/completed operations; and (4) personal injury. b. Each policy of insurance required in (a) and (b) above shall name District and its officers, agents and employees as additional insureds; shall state that, with respect to the operations of Contractor hereunder, such policy is primary and any insurance carried by District is excess and non-contributory with such primary insurance; shall state that not less than thirty (30) days written notice shall be given to District prior to cancellation. Contractor shall notify District in the event of material change in, or failure to renew, each policy. Prior to commencing the Services contained herein, Contractor shall deliver to District certificates of insurance as evidence of compliance with the requirements herein. In the event Contractor fails to secure or maintain any policy of insurance required hereby, District may, at its sole discretion, secure such policy of insurance in the name of and for the account of Contractor, and in such event Contractor shall reimburse District upon demand for the cost thereof. 4. Contractor, in the performance of this Agreement, shall be and act as an independent contractor. Contractor understands and agrees that Contractor and all of Contractor s employees shall not be considered officers, employees or agents of the District, and are not entitled to benefits of any kind or nature normally provided to employees of the District and/or to which District s employees are normally entitled, including, but not limited to, State Unemployment Compensation or Worker s Compensation. Contractor assumes the full responsibility for the acts and/or omissions of Contractor s employees or agents as they relate to the Services to be provided under this Agreement. Contractor shall assume full responsibility for payment of all federal, state and local taxes or contributions, including unemployment insurance, social security and income taxes for the respective Contractor s employees. PRECONSTRUCTION SERVICES AGRMT LANDMARK FC JOYCE MISSION POSSIBLE PROJECT MAY

11 5. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of any third party against either the District or Contractor. 6. The District and Contractor, respectively, bind themselves, their partners, officers, successors, assigns and legal representatives to the other party to this Agreement with respect to the terms of this Agreement. Contractor shall not assign this Agreement. 7. This Agreement shall be governed by the laws of the State of California. 8. While it is the intent of the parties that, if the Project continues, they will engage in good faith efforts to negotiate a further, separate and distinct set of agreements for construction of the Project, the District retains sole and complete discretion to cease the Project, suspend the Project, or engage any other person or firm to provide any or all further services related to the Project. Nothing in this Agreement obligates the District to engage the Contractor to provide services or work in any further agreements or capacity, whatsoever. 9. This Agreement represents the entire Agreement between the District and Contractor and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended or modified only by an agreement in writing signed by both the District and the Contractor. This Agreement is entered into as of the day and year first written above. DISTRICT TWIN RIVERS UNIFIED SCHOOL DISTRICT CONTRACTOR LANDMARK MODERNIZATION CONTRACTORS, INC. By: By: PRECONSTRUCTION SERVICES AGRMT LANDMARK FC JOYCE MISSION POSSIBLE PROJECT MAY

12 EXHIBIT B LEASE-LEASEBACK DOCUMENTS (Attached) Site Lease Sublease Construction Services Agreement TWIN RIVERS USD RESOLUTION NO. 652 FC JOYCE MISSION POSSIBLE LEASE LEASEBACK 5