REPORT TO THE CITY COUNCIL March 18, 2021 FROM: SCOTT L. MOZIER, PE, Director Public Works Department BY: RANDALL W. MORRISON, PE, Assistant Director Public Works Department, Engineering Division WILLIAM C. HERR, Assistant Director Public Works Department, Facilities and Construction Management Divisions SUBJECT ..Title Actions pertaining to the Fulton Street Reconstruction Project construction contract with American Paving Company of Fresno, California (Council District 3): 1. Approve Settlement Agreement and Mutual Release, in the amount of $321,335, with American Paving Company, Royston, Hanamoto, Alley & Abey and Provost & Pritchard Engineering Group, Inc. 2. Approve Contract Change Order No. 74, which increases the construction contract amount by $208,867.75 with American Paving Company of Fresno, California ..Body RECOMMENDATIONS Staff recommends that the City Council approve a Settlement Agreement and Mutual Release, in the amount of $321,335.00, with American Paving Company (APC), Royston, Hanamoto, Alley & Abey (RHAA) and Provost & Pritchard Engineering Group, Inc. (PPE), Approve Contract Change Order No. 74, which increases the construction contract amount by $208,867.75 with American Paving Company of Fresno, California, and authorize the Public Works Director or designee to execute the settlement agreement and final contract change order on behalf of the City of Fresno. EXECUTIVE SUMMARY Fulton Street is now open to the public for all modes of transportation following the successful ribbon cutting ceremony on October 21, 2017. Even though our "Main Street" is back, City staff has continued to work closely with APC on the outstanding punch list corrections related to the concrete sidewalk deficiencies. Contract Change Order No. 74 provides for repairs to the decorative concrete flatwork and bands that have failed. A significant amount of the concrete flatwork and aggregate bands have lifted and cracked and must be permanently repaired. The total cost to repair the concrete is $321,335.00. Lengthy investigative work as to the cause has been done by the design consultant, the contractor, the concrete supplier and the City with differing opinions of the cause being offered by each party. In order to resolve this matter a sharing agreement is being proposed where the design consultants will compensate the City for 35% of the aforementioned $321,335.00, the Contractor will also cover 35%, with the City being responsible for the remaining 30%, approximately $96,400.50. The Project has sufficient funding to cover the City's responsibility in the proposed agreement. The Fulton Street Reconstruction Project funding sources include the Federal Transportation Investment Generating Economic Recovery (TIGER) grant, local Measure C Transit Oriented Development Funds, local Gas Tax funding, and a contribution from the Downtown Fresno Partnership. BACKGROUND The Fulton Street Reconstruction Project improved the half mile stretch of Fulton Street between Tuolumne Street and Inyo Street. The pedestrian mall was completely removed and reconstructed with a complete streets design that included reintroducing two-way vehicular traffic on Fulton and the side streets of Merced, Mariposa, and Kern, with the exceptions that Kern between Fulton and Chukchansi Park and Mariposa between Federal Alley and Van Ness remain pedestrian plazas. Under City of Fresno Resolution 2017-158, multiple change orders, which aggregate more than 10% of the total contract price, shall be subject to prior authorization from City Council. On August 31, 2017, Council approved Contract Change Order No. 65, which brought the aggregate change order amount to 12.08% of the original contract amount following the large deductive Contract Change Order No. 1. Approval of Contract Change Order No. 74 will bring the aggregate change order amount to $2,986,751.76, equaling 15.03% of the contract amount. The updated total contract amount including this change order will be $22,854,966.41. Contract Change Order No. 74 provides for repairs to the decorative concrete flatwork and bands that have failed. A significant amount of the concrete flatwork and aggregate bands have lifted and cracked and must be permanently repaired. The total cost to repair the concrete is $321,335.00. Lengthy investigative work as to the cause has been done by the design consultant, the contractor, the concrete supplier and the City with differing opinions of the cause being offered by each party. In order to resolve this matter a sharing agreement is being proposed where the design consultant will compensate the City for 35% of the aforementioned $321,335.00, the Contractor will also cover 35%, with the City being responsible for the remaining 30%. After being reimbursed by RHAA and PPE in the amount of $112,467.25, the net cost of this work to the City is $96,400.50. The proposed Settlement Agreement with APC, RHAA and PPE and Contract Change Order No. 74 with APC, attached hereto, reflect this cost sharing arrangement. This change order, along with the proposed settlement agreement, was scheduled to be presented to the Construction Oversight Board on March 1, 2021, but the meeting was canceled due to a lack of quorum. The item was then rescheduled for March 15, 2021. Staff recommends that City Council approve a Settlement Agreement and Mutual Release, in the amount of $321,335.00, with APC, RHAA and PPE and approve Contract Change Order No.74 with APC for a total increase in contract amount of $208,867.75 for the Fulton Street Reconstruction Project. No change in contract time is included in the subject contract change order. ENVIRONMENTAL FINDINGS By the definition set forth within California Environmental Quality Act (CEQA) Guidelines, section 15378, the approval of these Contract Change Orders does not qualify as a project for the purpose of CEQA. LOCAL PREFERENCE Local preference is not applicable because these agreements do not include a bid or award of a construction or services contract. FISCAL IMPACT This contract change order will have no impact to the General Fund and will be completely funded with contingency funds already included in the approved project budget. Contract Change Order No. 74 will be a net increase $208,867.75, of which $112,467.25 will be funded by the settlement agreement with RHAA and PPE. The Fulton Street Reconstruction Project funding sources include the Federal TIGER grant, local Measure C Transit Oriented Development Funds, local Gas Tax funding, and a contribution from the Downtown Fresno Partnership. Attachments: Settlement Agreement and Mutual Release Contract Change Order No. 74