City of Sunnyvale
CONT
RACT CHANGE ORDER NO. 85
Pr
oject: Fair Oaks Avenue Overhead Bridge Project Repair (Federal Funded) Public Works Project Number: TR-13/01-16
Subject: Final Contract Change Order
Date: August ___ , 2023 (Date of Execution)
CH
ANGE ORDER DETAILS:
This Contract Change Order fully and completely settles and resolves any and all claims, potential claims, notices of potential claims, and any other issues between the City of Sunnyvale (City) and Joseph J. Albanese, Inc. relating to or in connection with Public Works Project No. TR-13/01-16 (Project), including, but not limited to, the following: working days and compensation for all remaining disputed delays, including any City claims related to or in any way arising out of claimed Contractor delay; time-related and field overhead costs; right of way delays; disputed final pay item quantities and adjustments; subcontractor and third-party claims and disputes related to or in connection with the Project; underground utility conflicts and relocation at all excavation locations throughout the Project; coordination with Caltrain and Caltrain plan review; costs related to the COVID-19 pandemic; contaminated soils disposal; Washington Avenue improvements demolition and replacement; POC demolition potential claim; falsework design, construction, and grading; materials sampling and testing; landscaping changes, materials and workmanship; inefficiencies and labor and materials escalations; site SWPPP management and CPM scheduling extensions; added work and decreased work; added Type 7 barrier fencing and changed railroad fencing; added deck repairs; apprenticeship program reimbursements; partnering costs; pedestrian impacts on the work areas; staging and traffic control changes; lighting maintenance and restoration; and miscellaneous extra work costs. Specific terms are as follows:
1. The total construction cost of the Project is $20,624,603.00. The breakdown of the total construction cost is as follows:
a. Final amoun
t for contract bid items and contract change orders: $19,478,838. b. Remaining balance of City Construction Budget of $745,765 per below:
i. Construction Bid: $18,386,00
ii. 10% Construction Contingency: $1,838,600
iii. Construction Budget: $20,224,603
iv. Remaining Construction Budget Balance: $20,224,603-$19,478,838= $745,765
c. An additional compensation of $400, 000 beyond the City’s original construction budget of $20,224,603.
Attachment 5
2. Pursuant to Section 1 above, the total amount of this Contract Change Order is $1,145,765.00 which shall result in a total construction cost of the Project of $20,624,603.00.
3. Pursuant to this Contract Change Order, Joseph J. Albanese, Inc. acknowledges that the payment and arrangements herein shall constitute the full and complete satisfaction of the City’s obligations pursuant to its contract with Joseph J. Albanese, Inc. relating to or in connection with the Project.
4. The City and Joseph J. Albanese, Inc. agree to an added time extension of 69 working days which is sufficient to extend the contractual date for Project Substantial Completion to August 26, 2022.
5. The City and Joseph J. Albanese, Inc. release each other for and from any and all delay, disruption or liquidated damage claims for costs arising from or in connection with the Project.
6. Subject to the provisions above, Joseph J. Albanese, Inc. does forever release and discharge the 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 Project.
7. Subject to the provisions above, the City does forever release and discharge Joseph J.
Albanese, Inc., 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 Project.
8. In connection with the releases set forth above and except as provided below, the City and Joseph J. Albanese, Inc. each waive all rights as to the above under the provisions of California Civil Code Section 1542, which states:
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 Attachment 5
him or her, would have materially affected his or her settlement with the debtor or released party.
The City and Joseph J. Albanese, Inc., 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.
9. This Contract Change Order contains the entire agreement between Joseph J. Albanese, Inc. and City with respect to the subject matter hereof and supersedes all prior agreements, discussions, negotiations, understandings and proposals of the parties.
Specifically, “all prior agreements” is intended to include all Contract Change Orders issued by the City with relation to the Project, regardless of the numerical labeling of such Contract Change Order(s).
10. This Contract Change Order does not constitute an admission of wrongdoing, contract or statutory violation, or liability on the part of any party to this Contract Change Order.
11. This Contract Change Order shall not be considered precedential in any other context.
12. This Contract Change Order does not void the project warranty period or any other requirements or provisions of the contract between the City and Joseph J. Albanese, Inc.
13. If any term of this Contract Change Order is held to be invalid or unenforceable, the remaining portions of the Contract 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) herein.
14. The undersigned parties represent that they have read and understand the terms of this Contract Change Order, and that they are authorized to execute this Contract Change Order on behalf of their principles.
15. 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 Contract Change Order is not effective until approved by the Owner.
Attachment 5
REFERENCES:
• Supplemental Potential Claim Record from W.C. Maloney for $29,449.75, dated 10/31/2021
• Request for Schedule Considerations for $2,167,153.00, dated 3/14/2023 • Request for Compensation for Bridge Footings Inefficiencies for $274,847.00, dated 3/15/2023
• Proposed Final Estimate by Joseph J Albanese, Inc. for a total project cost of $22,813,304, submitted on 6/22/2023
CONTRACT TIME ADJUSTMENT: 69 Working Days
ACCEPTED: RECOMMENDED FOR ACCEPTANCE:
Joseph J. Albanese, Inc.
By:
Phillip J. Albanese
President & CEO
Date:
Ghirardelli Associates
By:
Matt McKeon, P.E.
Date:
City of Sunnyvale
By:
Chip Taylor
Director of Public Works
Date:
Attachment 5