HomeMy Public PortalAboutJFOCM 2003-12-18
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RECORD OF PROCEEDINGS
JOINT FACILITIES OPERATING COMMITTEE I\1EETING
December 18) 2003
Attendees:
Winter Park West: Mike LaPorte, Jon Westerlund, Ingle Rcfvcnl
Grand County No.1: Bob Wolf
Fraser Sanitation District: , Drew Matteson, Robin Wirsing, Steve Sumrall
Staff:
Bruce Hutchins, Kirk Klancke, Joe Fuqua, John \Valker
Others:
Rob Anderson of McLaughlin Water Engineers, Kirt Guida of John T. Jones
Construction, and Gary Proest of Triangle Electric
The meeting was called to order by Chainnan Mike LaPorte at 6:31 pm.
The first item on the agenda was the Approval of the November 20. 2003 Meeting Minutes. Jon
Westerlund motioned and Drew Matteson seconded that the minutes of the Joint Facilities
Operating Committee meeting on November 20,2003 be approved. The motion passed
unanimously.
Chaimlan LaPorte noted a requested change in the agenda items to be covered. The change was
that "Approval of the John T. Jones Partial Pay Application No. 19" would be handled after the
J\.1anager's Report. In addition, the agenda item "Title Policy and Deed of Conveyance" will be
handle prior to the Manager's Report.
Chairman LaPorte also suspended 1110nthly meetings of the Constnlction Committee, effective
immediately. The Construction Committee will be reconvened on an as needed basis. Based
upon the suspension of the Construction COIlID1ittee, the monthly JFOC meetings will moved
back to a 6:00 p.m. start.
Next item on the agenda was the Title Policy and Deed of Conveyance. It was noted that Grand
County Title and Escrow Company, Inc. had produced Title Commitment No. K-2-585-II.
Discussion on the Title Policy and Deed of Conveyance was tabled until January's meeting to
allow each District and their respective staff to review. Mike LaPorte noted that under Schedule
B - Section 1(3) reference was made to a Warranty Deed passing from FSD to FSD) WPW and
GSWSD No.1. Mike LaPorte further noted that past discussions between the respective
Districts had been regarding the exchange of a Quit Claim Deed, coupled wlth the Title Policy.
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The next item on the agenda was the Engineer's Report. MWE engineer, Rob A.nderson,
reported on the status of plant construction as follows:
1. The Pretreat is completed with the exception of the HV AC.
2. The Secondary Treatment Facility is compieted with the exception of punch list
items that need to be completed~ such as completing concrete corrective work.
3. In the Blower Room. the HV AC is not functional.
4. The Pump Room has water seepage.
5. The Centrifuge is 90% complete.
6. The UV Building is now being used and is treating.
7. The Control Room has water seepage.
8. The site clean-up, road work and Thoroseal application will be delayed until next
Spring.
9. Punch Est items stiii remain and need to be completed.
Iffi.9. Anderson reports that all is proceeding weB, except for the fact that the project has not been
compieted in a timeiy manner. Rob Anderson also stated that the problems with the HV AC
repair may be a result lack of coordination between the subcontractors involved.
Steve SUfilrall questioned l\tlWE regarding the stairweli entering into the centrif'uge from the
ioading room. Steve states that there appears to be a problem with the pitch of the stairway. Curt
Guida of Jo1m T. Jones responds that this matter will be c.orrected by John T. Jones.
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Ingle Refvem questioned NIWE regarding the concrete seepage issues. ~ Anderson states that
John T. Jones is presently trying io fix the seepage issues by appiying cauik to the areas in
question. Curt Guida also responds by stating that the subcontractor will be on site tomorrow to
make recommendations on how to fix the concrete seepage.
Curt Guida also responds to the BV AC problems. Curt states that 101m T. Jones is presently
preparing a report for MWE regarding the HV AC problems. Curt thinks that the problem may be
as a result of the pump that has been installed being too small. He also states that John T. Jones
will correct the problem. A thelmoslat will be installed by Triangle Electric as soon as they
receive a purchase order from Jolm T. Jones.
~1ike LaPorte, noting that Gary Proest is in attendance, thanks Triangle Electric for aii their hard
work on the project.
Steve Sumrall questions :Nl\tVE regarding the out-swinging doors on the piant. Steve expresses a
concern that the out-swinging may be inhibited by ic.e buiidup during the Winter montils. lfnot
corrected, this issue may result in a maintenance nightmare. Discussion follows on this issue and
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Ingle Refvem ~uggests that awnings may be a simple way to correct the problem. MWE will
look jnto so!utions to the problem.
The next item on the agenda is the Manager's _RyQol}:. Joe Fuqua stated that the plant is tl'eating
sewer and is working well in h,m.d mode. Joe Fuqua also states that the IN is working well in
hand mode. Joe Fuqua discusses, in detail the UV process.
Mike LaPorte noted a report dated August 28, 2003, issued by the Water Pollution Control
Revolving Fund Ll1spectlon Report Form ("WPCRFIRF"). Mike speci fically draws attention to a
statement made in said report on Page 3. Mike LaPorte then read the statement into the record.
Th~ staiclllent reads as fOI]0\'\/5: "There did appear to be a significant amount of poorly finished
concrete that should be repaired before the project closure to assure the integrity of the concrete
and to improve the appearance of the workmanship." Mike LaP0I1e notes that this statement
implies that the State takes issue to the concrete work, as poured and finished, at the plant.
Mike LaPorte questioned Joe Fuqua on any further discussions that the Manager has had with the
State regarding this issue. Joe notes that through communication with the State, the State has
posited that 50,10 of the contract amount should be retained until this issue has been satisfactorily
eoneeted.
lYIike LaPorte then requested that Joe give his opinion regarding what it will take to substantialiy
complete the plant construction. Joe Fuqua states that, in his opinion, several issues must be
resolved prior to the plant being considered substantially complete. Joe states that the plant win
need to be fully operational and all punch list items will need to be completed, including concrete
leakage, centrifuge operationaJ and tested, controls completed and operational in ma.'1ual mode,
BV AC fully remedied and operational, heating working properly, and sign off sheets received
from the manufacturers.
The Manager then reported on the Loan Account and Capital Project Account. Joe Fuqua and
Robin Wirsing summarized the current status_ It was summarized that at the begim1ing of the
project, each District funded a Capital Project ACCOW1t in the anlount of $1.0 nlillion, in there
respective proportionate shares. That amount, \vith minimal interest accrued, remains intact.
The Capital Project Account wi]] remain fully funded until such time as the Manager comes back
to the JFOC with a reconul1endatioIl regarding the future use of the funds. It was noted that a
possible use may be transfer to a plant capital reserve account.
FSD has now !lJl!y depleted their State loan and has no further draws in which they can rely upon
tor plant construction. FSD requested the acquiescence of WPW and GC\VSD No.1 to pay their
remaining share of the construction costs {i.om a general account. FSD wanted to make sure the
other Districts did not have any problems with this approach. Both WP\\l and GCWSD No.1
affirmed that there were no concerns.
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j\liike LaPorte requested that each District conflrm on the record that it, respectively, had the
funds to finish the construction of the plant. Robin Wirsing for FSD stated that FSD had the
funds sufficient to cOlnplete the plant. Jon \Vesterlund for WPS .;tated the same_ Bob Wolf for
GC\VSD No.1 stated the same.
Next on the agenda \vas P311ial Pav Application No. 19 and Change Order No. 13. Mike LaPorte
summarized several issues of substance regarding the Partial Pay Application No. 19 and Change
Order No. 13. JVlike LaPorte slllTImarized that during an on-site visit on December ] O~ 2003,
several items were discussed with Jo1m T. Jones; MWF. :md JFOC personnel. Mike LaPorte
sunm1arized that the plant was to be finally completed on December 10, 2003 and that John T.
jones had faiied to complete the project within the contractual deadline. John T. Jones is aware
of the provision within the contract relating to $500.00 per day in ]jquidated damages for failure
to complete the plant by the final contract completion date and had requested an extension to the
contract until December 31,2003. MWE felt that an extension through JanualY 31: 2004 may be
more realistic. After discussion with John T_ Jones' representative, Mike LaPorte represented
that he \'v'onld recoI1'1_l11end to the JFOC a contract extension tr..Tough Januarj 15, 2004. John T.
Jones pledged to move matter forward without haste.
Also, Mike LaPorte stated that during the on-site visit. John T. Jones represent.ed that the HVAC
would be repaired and operational today, During an on-site visit earlier today, matters have not
been moving forward and the HV AC has not been repaired nor is it operational.
Mike LaPorte summarized that the real issue WIth Partial Pay Application No. 19 boils down to
the issue of retain age. John T. Jones has requested that the retainage on the contract be reduced
to 20~. It was noted on Partial Pay Application No. 19, as presented~ the retained amount had
been reduced from 5% to 2%.
lviike LaPorte questioned J/:'OC counsel John Walker on the issue of retain age in relation to the
work completed on the plant. JFOC counsel first summarized the contractual provision and
statutory provisions regarding retainage of funds. As summarized, the contract and the Colorado
statutes provide that upon 50% of the contract value being completed, no further retainage will
be held, except upon lack of progress by the contractor. This "\'il! result in 5~1c of the contract
value being retained at the end of the project.
The construction contract further provides that, "the withheld ten percent of the initial fifty
percent of the value of the work shall be retained until final payment or until the Owner
determines the work is substantially complete and the retain age may be reduced to the amount
necessary to assure completion with written approval of the Surety fUTIlishing bonds."
C.R.S. 24-91-103 provides that upon 500/0 completion of the proJect, '"the public entity shall pay
any of the remaining instaIlments without retaining any additional funds. . . . The withheld
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percentage of the contract price of any such work, improvement, or construction shall be retained
until the contract is completed satisfactorily and finally accepted by the public entity." C.R.S.
24-9 i -1 03 further provides that if the public entity is satisfied with the contractor's progress, it
may, upon the written request of the contractor, authorize final payment from the retained funds
tor any work tinally accepted. However, C.R.S. 24-01-103 requires that prior to tinal acceptance
of the project. the written approval of the surety will be required prior to the payment of any such
retained funds.
JFOC counsel summarized that it was his opinion that in order for the plant to be considered
substantially complete, all items necessary for full use and operation of the entire treatment
facility should be required to be installed, tested and operational. JFOC counsel also noted that a
difference existed between substantially completion and final acceptance. Both the contract and
C.R.S. 24-91-103 require that tbe prior to release of the full contract funds, funds could be
retained until final payment or final acceptance of the plant. Counsel further noted that the
purpose of retained funds is to insure completion of the plant should the contractor fail to fulfill
its contractual obligations. Counsel also noted the requirement that the surety must approve any
reduction below 5% of the contract price.
JFOC counsel recommended that retainage should not be reduced until final acceptance and fInal
payment of the plant. He summarized that since the project had not been finally accepted and
since written approval to release retained funds had not be received by the surety) the JFOC
should not even consider lowering the percentage retained.
The Manager concurred with the advice of counsel and suggested that if the retained funds were
reestablished at 501<>, they would recommend paYInent of Partial Pay Application No. 19.
Rob Anderson stated that the rest of the pay application was reasonable for work conducted since
the last pay application.
Jon Westerlund made a motion, seconded by BobWoIt~ that Partial Pay Application No. 19. after
recalculation for 5% rctainage of the contract price, be approved. The motion passed
unanimously.
Next, Change Order No. 13 was discussed in detail. NUke LaPorte sun1marized that Change
Order No. 13 would extend the completion date of the contract to January 15,2004.
Discussion followed on the extension requested in Change Order No. 13. Jon Westerlund stated
that he felt that the contract should be extended to January 15, 2004 to allow John T. Jones the
time to fully complete the project. Bob Wolf agreed) but wanted Jolm T. Jones to be fully aware
that an additional extension heyond January 15, 2004 was highly unlikely and that he would
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personaily recomlnen and support initiating the S5UO,OO per day IiqUldated damages clause,
beginning January] 6, 2004.
Steve SumraH questioned MWE regarding whether granting an extension to the contract would
cost any additional eng1neering fees. Rob Anderson stated that the engineering fees would be
greater if the project was extended. As an example, Rob stated that the expense of Ray Pribble
may be greater than originally estimated as a result of the extension.
The JFOC then questioned JFOC counsel regarding whether Committee would waive the
liquidated damages clause of the contract if an extension was granted. John Walker stated it was
his opinion that if the extension was granted, liquidated damages would not be available during
the extension period~ but would be available beginning January 16, 2004.
Bob Wolf then motioned, seconded by Ingle Refvurn, that Change Order No. 13 be approved~
thereby granting John T. Jones a contract extension through January 15, 2004. The motion
passed with Drew Matteson voting in opposition.
Next, Mike LaPorte discussed the fact that some of the construction project would not be
completed until next Spling. Mike noted that John T. Jones would have to retunl next Spring to
finish their contractual requirements relating to the road, thoroseal application, seeding, exterior
painting and site clean-up. John T. Jones has already represented that they will return in the
Spring to conduct this work. The issue is how to carve out the remaining obligations so that the
remainder of the project can be closed out and finally accepted. After discussion, Mike LaP0l1e
requested that the Manager, MWE and JFOC counsel report back to the full JFOC at next
111onth's meeting with suggestions on the mechanism to carve out the remaining John T. Jones
contractual obligations.
The next item on the agenda was the Attorney RepOlt. JFOC counsel, [allowing up on a request
by the JFOC at November's meeting, reported that he had looked into the statute of limitations
issue. He summarized that there is a two (2) year statute of lilnitations on construction nlatters
from the time in which the cause of action arises. Generally, any legal action must be brought
within a maximum of six (6) years of substantial completion of the project.
The JFOC counsel also surmnarize the status of the augmentation plan. The first status
conference \vas held with the \Vater Court and the opposition. Negotiations are on-going and it
appears that the Colorado \.vater Conservation Board is now ready to stipulate out of the matter.
The CWCB simply wanted clarification regarding the plant retunl flow in relation to the location
of the wells. That has now been provided and a binding stipulation is expected by the end of
January. The next status conference is scheduled for February 10,2004.
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The next ltem on the a~enda was Board Choice. Jon Westerlund requested a status update on the
discharge permit application. Rob Anderson stated that he h~ not heard back from the State, but
will follow up and give a complete report to the JFOC during January's meeting.
IvIike LaPorte requested that the Manager begin considering possible dates and ac.tivities for the
official opening of the plant.
The next meeting of the JFOC is scheduled for January 15,2004 at 6:00 p.m.
There being no further business before the JFOC, Drew Matteson made a motiofl;- seconded by
Bob Wolf, that the meeting be adjourned. The motion passed unanimously.
ATTEST:
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