CONTRACT CHANGE ORDE
R No. ###
City of Sunnyvale
Sunnyvale Primary Facility - Package 2
Public Works Project No. UY-16/01-20
ITEM:
Extended Overhead Cost & Time Extension per settlement.
Contractor is hereby directed to make the herein described changes from the plans and specifications or do the following work not included in the plans and specifications of this contract. All new work herein described shall be done in accordance with the applicable provisions of the plans and specifications, except as specifically modified by this Contract Change Order.
DESCRIPTION OF CHANGE:
This Change Order fully and completely settles and resolves Potential Change Order (PCO) 171.01, PCO 171.02, Updated PG&E Delay Cost letter from Overaa submitted on 12/15/2021, and Overaa’s Government Code Claim No. 21-22-050 submitted on 12/16/2021 (collectively, “The Claim”), which are all hereby settled and released by Overaa. Specific terms are as follows:
1. The City agrees to additional compensation to Overaa of $5,100,000.00.
2. The City and Overaa agree to an overall time extension of 743 days to extend the contractual date for project Substantial Completion to February 6, 2023, and revised Milestone B date to August 2, 2022.
3. Overaa and the City release each other for and from all delay, disruption or liquidated damage claims for costs arising from The Claim, and the claims set forth in The Claim.
This release includes, but is not limited to, all costs associated with the Tesco Controls delays, the rental and operation of the temporary generator, IPS flood damage, and Bypass No. 7 Extended costs, as itemized in Overaa’s Government Code Claim.
4. Subject to the provisions above, Overaa does forever release and discharge City, its successors, assigns, officers, employees, attorneys, agents, consultants and each of them from any and all claims, demands, controversies, causes of action, obligations, liabilities, expenses, costs, attorneys’ fees and damages of whatever nature or character of any kind, whether in law or equity, whether past, present or future, whether known or unknown, suspected or unsuspected, now possessed or hereinafter acquired, arising out of or related in any way to The Claim.
5. Subject to the provisions above, City does forever release and discharge Overaa, its successors, assigns, officers, employees, attorneys, agents, consultants and each of them from any and all claims, demands, controversies, causes of action, obligations, liabilities, expenses, costs, attorneys’ fees and damages of whatever nature or character of any kind, whether in law or equity, whether past, present or future, whether known or unknown, suspected or unsuspected, now possessed or hereinafter acquired, arising out of or related in any way to The Claim.
6. In connection with the releases set forth above and except as provided below, Overaa and City each waive all rights as to The Claim under the provisions of California Civil Code Section 1542, which states:
Attachment 1
(See Updated Attachment 1, posted 20230425)
CONTRACT CHANGE ORDE
R No. ###
City of Sunnyvale
Sunnyvale Primary Facility - Package 2
Public Works Project No. UY-16/01-20
A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Overaa and City, with the advice of counsel, knowingly and voluntarily waive any protection to which it may be entitled under California Civil Code Section 1542 and further waive any protection that may exist under any comparable or similar statutes or principles of law under any and all states of the United States or of the United States, and covenants not to assert any claims in violation of this waiver.
7. The City and Overaa reserve all rights and defenses as to:
a) The cost of the bypass implemented by Overaa, beyond the time extension included in this settlement for the revised Milestone B date of 8/2/2022. b) The claim of HGH Electric currently being reviewed by the City, not including any additional Direct or Indirect Overhead costs by Overaa. c) Overaa’s claim for COVID-19-driven costs, not including any additional Direct or Indirect Overhead costs.
d) Any delays past the revised Milestone B date of 8/2/2022 and Substantial Completion date of 2/6/2023 through the successful completion of the Clean Water Test. e) Any claims of Tesco Controls not attributable to the “PG&E Delay” (i.e., non-time related claims). All costs associated with escalation or Indirect or Direct Overhead costs for Tesco Controls are settled through the revised Milestone B and project Substantial Completion dates included in this Change Order.
8. This Change Order contains the entire agreement between Overaa and City and supersedes all prior agreements, discussions, negotiations, understandings and proposals of the parties.
9. Counsel for Overaa and City have reviewed and participated in the drafting of this Change Order. Consequently, the normal rule of construction that ambiguities shall be resolved against the drafter shall not be used or applied in the interpretation of this Change Order.
10. Overaa represents that it has not heretofore assigned or transferred, nor purported to assign or transfer, to any person or entity the Claim or any portion thereof or any interest therein that is subject to the release provisions of this Change Order.
11. This Change Order does not constitute an admission of wrongdoing, contract or statutory violation, or liability on the part of any party to this Change Order.
Attachment 1
(See Updated Attachment 1, posted 20230425)
CONTRACT CHANGE ORDE
R No. ###
City of Sunnyvale
Sunnyvale Primary Facility - Package 2
Public Works Project No. UY-16/01-20
12. This Change Order shall not be considered precedential in any other context.
13. If any term of this Change Order is held to be invalid or unenforceable, the remaining portions of the Change Order shall continue to be valid to the fullest extent permitted by law. The invalid or unenforceable term(s) shall be deemed amended and limited to the extent necessary to permit the maximum enforceability or validation of the term(s).
14. The undersigned parties represent that they have read and understand the terms of this Change Order, and that they are authorized to execute this Change Order on behalf of their principles.
REFERENCES: Government Code Claim dated 12/16/2021
Overaa Letter (Unifier CCOR-0786) – Updated PG&E Delay Cost, dated 12/15/2021
PCO 171.02, dated 03/30/2021
PCO 171.01, dated 11/17/2020
COST OF CHANGE: $5,100,000.00
CONTRACT TIME ADJUSTMENT: 743 Calendar Days
This Contract Change Order constitutes full and complete compensation for all labor, equipment, materials, overhead, extended overhead, profit, any and all indirect costs and time adjustments required to perform the above described change. This Change Order is not effective until approved by the Owner.
ACCEPTED: RECO
MMENDED FOR ACCEPTANCE:
C. Overaa & Co.
Project Manager:
By:
Nick Ke
bbas, Vice President
Date:
PSOMAS
Cons
truction Manager:
By:
Mike Redi
g, P.E.
Date:
City
of Sunnyvale:
Authorized Staff:
By:
Chi
p Taylor
Director of Public Works
Date:
Attachment 1
(See Updated Attachment 1, posted 20230425)