HomeMy WebLinkAbout12/17/2009 AGENDA BACKUPCentral Contra Costa Sanitary District
' BOARD OF DIRECTORS
Y POSITION PAPER
Board Meeting Date: December 17, 2009 No.: 3.c. Consent Calendar
Type of Action: INFORMATIONAL
subject: ADVISE THE BOARD OF THE CLOSEOUT OF THE MARTINEZ SEWER
RENOVATIONS, PHASE 2, DISTRICT PROJECT 5979
Submitted By.
Michael J. Penny
Provisional Senior Engineer
Initiating Dept. /Div.:
Engineering /Capital Projects
REVIEWED AND RECOMMENDED FOR BOARD ACTION:
w `
M. Penny S. Mes tsky i�L T. Pilecki
WY�
A. Farrell
/James M. Kelly,
eneral Manager
ISSUE: All work has been completed on the Martinez Sewer Renovations, Phase 2,
District Project 5979, and this project can now be closed out.
RECOMMENDATION: Close out the project.
FINANCIAL IMPACTS: This closeout will result in approximately $114,000 being
returned to the Collection System Program. Attachment 1 shows the project
expenditures by category.
ALTERNATIVES /CONSIDERATIONS: Not applicable.
BACKGROUND: The Martinez Sewer Renovations, Phase 2 Project included
renovating approximately 6,000 feet of 6 -inch sewer pipe in Martinez. The sewers were
replaced by open -cut construction.
On July 3, 2008, the Board of Directors authorized the award of a construction contract
for this work to William G. McCullough Company. The Contractor was issued a Notice
to Proceed that was effective August 4, 2008, with a completion date of June 19, 2009.
The project was accepted by the Board on August 6, 2009.
The original construction contract amount was $1,379,595. There were fifteen (15)
construction change orders issued in the total amount of $32,697. The total amount
paid to the Contractor was $1,412,929.
The total authorized budget for the project was $2,178,000, which included a
contingency of $206,000. The total project cost was $2,063,929, which is
approximately five percent less than the budgeted amount. The project closeout will
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POSITION PAPER
Board Meeting Date: December 17, 2009
subject. ADVISE THE BOARD OF THE CLOSEOUT OF THE MARTINEZ SEWER
RENOVATIONS, PHASE 2, DISTRICT PROJECT 5979
result in $114,071 being returned to the Collection System Program (see Attachment 1
for Expenditure Summary).
RECOMMENDED BOARD ACTION: This item is presented to the Board of Directors
for information. No action is necessary.
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ATTACHMENT 1
MARTINEZ SEWER RENOVATIONS, PHASE 2
DISTRICT PROJECT 5979
EXPENDITURE SUMMARY
ACTIVITY
COST
Total Budget
$
2,178,000
Construction Contract
$
1,379,595
Early Completion Bonus
$
Dispute Review Board, Credit for Shared Costs
$
Change Orders
$
32,697
Change Order % of Construction
2.37%
Total Construction Amount
$
1,412,929
Engineering, Design, CM, Admin.
$
489,143
Engineering, Design, CM, Admin. - % of Construction
34.6%
Right -of -Way Acquisition
$
162,494
Right -of -Way Acquisition - % of Construction
11.5%
TOTAL PROJECT EXPENDITURES
$
2,063,929
Amount to be Returned to Collection System Program
$
114,071
NAPESUP\Cbradley \POSITION PAPERS \Penny \5979 Closeout PP.doc Page 3 of 3
Central Contra Costa Sanitary District
' BOARD OF DIRECTORS
POSITION PAPER
Board Meeting Date: December 17, 2009 No.: 3.d. Consent Calendar
Type of Action: ADOPT A RESOLUTION
Subject: ADOPT A RESOLUTION ACCEPTING A GRANT OF EASEMENT FROM
MICHAEL J. SONNIKSON AND JANA RAE SONNIKSON, PROPERTY OWNERS
AT 1064 DOLORES DRIVE, LAFAYETTE, AND AUTHORIZING STAFF TO
RECORD THE RESOLUTION WITH THE CONTRA COSTA COUNTY RECORDER
(DISTRICT PROJECT 159)
Submitted By:
Molly Mullin, Senior Right of Way Agent
REVIEWED AND RECOMMENDED FOR BOARD ACTION:
Mullin Or
Initiating Dept. /Div.:
Engineering /Environmental Services
IA
Swanson A. Farrell ames M. Kelly
General Manager
ISSUE: A resolution of the Board of Directors is required to accept grants of
easements and to authorize staff to record documents.
RECOMMENDATION: Adopt a resolution accepting a grant of easement and
authorizing staff to record the resolution with the Contra Costa County Recorder.
FINANCIAL IMPACTS: The District paid $5,400 for this easement.
ALTERNATIVES /CONSIDERATIONS: None.
BACKGROUND: The Board of Directors
regularly accepts easements by resolution.
The recommended resolution will accept an
easement from the current property owners
at 1064 Dolores Drive, Lafayette, which is
needed for an upcoming sewer renovation
project in the Via Roble neighborhood of
Lafayette.
RECOMMENDED BOARD ACTION: Adopt a
resolution accepting a grant of easement
from Michael J. Sonnikson and Jana Rae
Sonnikson, property owners at 1064 Dolores
Drive, Lafayette, and authorizing staff to
record the documents with the Contra Costa
County Recorder.
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N: \ENVRSEC \Position Papers \Mullin \2009 \5958_PP_GOE - Sonnikson Final 12- 17- 09.doc
Central Contra Costa Sanitary District
' BOARD OF DIRECTORS
za °' - POSITION PAPER
Board Meeting Date: December 17, 2009 No.: 3.e. Consent Calendar
Type of Action: APPROVE ADMINISTRATIVE OVERHEAD PERCENTAGE
Subject: APPROVE UPDATED ADMINISTRATIVE OVERHEAD PERCENTAGE FOR
FISCAL YEAR 2010 -11
Submitted By:
Debbie Ratcliff, Controller
Initiating Dept /Div.:
Administrative / Finance & Accounting
REVIEWED AND RECOMMENDED FOR BOARD ACTION:
D. Ratcli R. Musgra es
James M. Kelly,
General Manager
ISSUE: Board approval is requested to adopt the annually updated administrative
overhead percentage.
RECOMMENDATION: Approve the continued use of the administrative overhead
percentage of 178% for Fiscal Year 2010 -11.
FINANCIAL IMPACTS: The administrative overhead percentage is calculated and
updated annually for the purpose of recovering administrative overhead and employee
benefit costs when recovering full costs for services provided to another agency,
company or developer, charging to capital projects and for customer billings involving
labor costs.
ALTERNATIVES /CONSIDERATIONS: The administrative overhead calculation
methodology could be modified resulting in an increased or reduced percentage. This is
not recommended as a modification to the methodology would likely raise questions
and objections due to a lack of consistency.
BACKGROUND: In an effort to set the rate early enough to be used for the calculation
of rates and charges and notification to the Clean Water Program for contract update,
staff intends to bring the annual updated percentage to the Board every December.
The administrative overhead percentage approved last year for use in the 2009 -10
budget was 178 %. Salaries and benefits both increased by the same percent
comparing this year to last year, so the percent of benefits to salaries remained the
same.
The purpose of calculating administrative overhead, non -work hours, and employee
benefits rates is to follow the Board's direction for the District to recover the full cost of
the direct services it provides.
Administrative overhead consists of indirect costs that are incurred for a common
purpose benefiting more than one task. Indirect costs include expenses such as
N: \ADMINSUP\ADMIN \POSPAPER\Approve Administrative Overhead Percentage 12- 17- 09.doc Page 1 of 2
POSITION PAPER
Board Meeting Date: December 17, 2009
Subject. APPROVE UPDATED ADMINISTRATIVE OVERHEAD PERCENTAGE FOR
FISCAL YEAR 2010 -11
Administrative Department expenses, General Manager, and Department Director
salaries and benefits, secretarial salaries and benefits, self- insurance fund expense,
depreciation expense, and the GASB 45 annual contribution.
Non -work hours consist of the value of vacation, sick leave, administrative leave,
birthday holiday, and earned overtime expressed as a percent of salaries.
Employee benefits consist of costs associated with retirement payments, medical
premiums, deferred compensation contribution in lieu of social security and other
similar benefits, and is expressed as a percent of salaries.
The administrative overhead percentage is calculated using the most recent audited
financials, therefore the 2008 -2009 audited financials were used to calculate the rate
for fiscal year 2010 -2011. For the 2010 -2011 Fiscal Year, the following rate would
apply:
Administrative overhead 98%
Non -Work Hours 19%
Employee Benefits 61%
Total 178%
The administrative overhead percentage was reviewed with the Budget & Finance
Committee.
RECOMMENDED BOARD ACTION: Approve the continued use of the administrative
overhead percentage of 178% for Fiscal Year 2010 -2011.
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Central Contra Costa Sanitary District
' BOARD OF DIRECTORS
POSITION PAPER
Board Meeting Date: December 17, 2009 No.: 3.f. Consent Calendar
Type of Action: ADOPT RESOLUTION
Subject: ADOPT A RESOLUTION AUTHORIZING THE PRESIDENT OF THE BOARD
AND THE SECRETARY OF THE DISTRICT TO EXECUTE AN ENCROACHMENT
AGREEMENT WITH THE TOWN OF DANVILLE RELATING TO PROPOSED
IMPROVEMENTS AT HAP MAGEE RANCH PARK ,(DISTRICT PROJECT 4921 - PARCEL 2 R -1)i
Submitted By: Initiating Dept. /Div.:
Rick Hernandez, Senior Right of Way Agent Engineering /Environmental Services
REVIEWED AND RECOMMENDED FOR BOARD ACTION:
D b" � S� 4,
Hernandez ?Gronlun .Swanson A. Farrell mes M. Kelly
eneral Manager
ISSUE: Approval to execute and authorization to record property documents such as
encroachment agreements must be obtained from the Board of Directors.
RECOMMENDATION: Adopt a resolution authorizing the President of the Board and
Secretary of the District to execute an Encroachment Agreement with the Town of
Danville and authorizing staff to record the agreement with the Contra Costa County
Recorder.
FINANCIAL IMPACTS: The Town of Danville has paid the standard Encroachment
Permit Fee.
ALTERNATIVES /CONSIDERATIONS: The Board may elect to decline the request in
order to maintain our easements unencumbered. The District will occasionally allow
some types of encroachments if these do not unreasonably interfere with operations
and if permitting the encroachments will give the property owner greater use of their
property.
BACKGROUND: The District owns and maintains a sewer.through a portion of Hap
Magee Ranch Park in Danville (map attached). This sewer and its associated
easement pre -date development of the park. The Town of Danville is proposing
improvements to the park, including shade structures over picnic areas located within
the sewer easement. Staff has reviewed the proposed improvements and the condition.
of the sewer and has determined that the proposed structures will not adversely affect
our operations.
RECOMMENDED BOARD ACTION: Adopt a resolution authorizing the President of
the Board and Secretary of the District to execute an Encroachment Agreement with
the Town of Danville and authorizing staff to record the agreement with the County
Recorder.
N: \ENVRSEC \Position Papers \Hernandez R\2009 \PP Accept Agreement Hap McGee Ranch Final 12- 17- 09.doc Page 1 of 1
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Central Contra Costa Sanitary District
' BOARD OF DIRECTORS
POSITION PAPER
Board Meeting Date: December 17, 2009 No.: 5.a. Bids and Awards
Type of Action: CONSIDER BID PROTEST /AWARD CONSTRUCTION
CONTRACT /AUTHORIZE EXECUTION OF CONTRACT DOCUMENTS /AUTHORIZE
PROFESSIONAL ENGINEERING SERVICES AGREEMENT
subject: HOLD A PROTEST HEARING TO CONSIDER W.E. LYONS
CONSTRUCTION CO.'S BID PROTEST; AWARD A CONSTRUCTION CONTRACT;
AUTHORIZE THE GENERAL MANAGER TO EXECUTE CONTRACT DOCUMENTS
WITH BOBO CONSTRUCTION, INC.; AND AUTHORIZE AN AMENDMENT TO A
PROFESSIONAL ENGINEERING SERVICES AGREEMENT WITH CALPO, HOM, &
DONG ARCHITECTS FOR THE CONSTRUCTION OF THE HHWCF
IMPROVEMENTS PROJECT, DISTRICT PROJECT 8216
Submitted By: Initiating Dept /Div.:
Samantha Engelage, Staff Engineer Engineering / Capital Projects
REVIEWED AND RECOMMENDED FOR BOARD ACTION:
S. E age B. Than .1T. Pilecki A. Pa -- ames M. Kelly,
general Manager
ISSUES: On December 1, 2009, four sealed bids were received and opened for the
construction of the Household Hazardous Waste Collection Facility ( HHWCF)
Improvements Project, District Project 8216. On December 7, 2009, a timely bid protest
was received. As part of its deliberations, the Board needs to consider the merits of any
timely bid protests. The Board of Directors must award the contract or reject bids within
50 days of the bid opening. Board authorization is required to amend consulting
agreements beyond Staffs authority.
RECOMMENDATION: Find that the project is exempt from the California
Environmental Quality Act (CEQA); if necessary, hold a protest hearing to consider the
bid protest; reject the bid protest; award a construction contract to Bobo Construction,
Inc.; authorize the General Manager to execute the Contract Documents subject to
favorable review of insurance certificates, bond submittals, appropriate Contractor
license, and any other required submittals (SUBMITTALS); and authorize the General
Manager to execute an amendment to the Professional Engineering Services
Agreement with.Calpo, Hom, and Dong Architects (CHD).
FINANCIAL IMPACTS: Approximately $1,286,000, including design, bid price,
contingency, and construction management if awarded to Bobo Construction, Inc.
Approximately $11,000 more if awarded to W.E. Lyons Construction Co.
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POSITION PAPER
Board Meeting Date: December 17, 2009
Subject: HOLD A PROTEST HEARING TO CONSIDER W.E. LYONS
CONSTRUCTION CO.'S BID PROTEST; AWARD A CONSTRUCTION CONTRACT;
AUTHORIZE THE GENERAL MANAGER TO EXECUTE CONTRACT DOCUMENTS
WITH BOBO CONSTRUCTION, INC.; AND AUTHORIZE AN AMENDMENT TO A
PROFESSIONAL ENGINEERING SERVICES AGREEMENT WITH CALPO, HOM, &
DONG ARCHITECTS FOR THE CONSTRUCTION OF THE HHWCF
IMPROVEMENTS PROJECT, DISTRICT PROJECT 8216
ALTERNATIVES /CONSIDERATIONS: Accept the protest and award to the second
lowest bidder, W.E. Lyons Construction Co., which is not recommended. Reject all
bids, which is also not recommended.
BACKGROUND: The HHWCF has consistently seen increased residential and
business participation since it opened in 1997 as the first permanent HHWCF in Contra
Costa County; participation grew from 7.8 percent of households in fiscal year (FY)
1997 -98 to 14.4 percent of households in FY 2008 -09. This increase in participation
has necessitated an increase in staffing over time from three to six full -time employees.
The facility, originally designed for three full -time staff, does not have adequate office
and locker room space for current staffing needs.
In April 2009, Staff conducted an informal selection process and selected CHD to
design the HHWCF Improvements Project based on their reasonable cost and excellent
performance on other District projects. Staff then executed a Professional Engineering
Services agreement with CHID for design services to address office and locker room
limitations, as well as ADA improvements to the Reuse Room and parking lot, and
improvements for employee efficiency, such as the addition of radiant heaters. Safety
items in the HHWCF and throughout the treatment plant were also addressed in the
design scope. Safety items addressed in this project include, but are not limited to, the
addition of security cameras to the 4737 Imhoff Place Warehouse and HHWCF; keycard
access to HHWCF, the Maintenance and Reliability Center, and the South Gate; and
replacement of the Headquarters Office Building emergency - lighting panel. The
HHWCF Improvements Project also includes the remodel of a men's restroom into a
women's locker room in the Solids Conditioning Building for the growing number of
female operators.
Additionally, in July 2009 Staff executed a Professional Engineering Services
agreement with Complete Project Solutions, Inc. (CPS) for design services to address
seismic retrofits to the HHWCF in accordance with the new building code and
requirements for hazardous material storage. The design by CPS included
reinforcement of select moment frames and the modification of an existing braced
frame.
On November 19, 2009, the Board of Directors rejected all bids for the District's Vehicle
Shop Improvements, District Project 8218, and approved of incorporating that project
into the HHWCF Improvements Project. As such, this project also addresses
N:\PESUP \Position Papers \Engelage \8216 - Construction Award—Protest (counsel review).DOC Page 2 of 16
POSITION PAPER
Board Meeting Date: December 17, 2009
subject. HOLD A PROTEST HEARING TO CONSIDER W.E. LYONS
CONSTRUCTION CO.'S BID PROTEST; AWARD A CONSTRUCTION CONTRACT;
AUTHORIZE THE GENERAL MANAGER TO EXECUTE CONTRACT DOCUMENTS
WITH BOBO CONSTRUCTION, INC.; AND AUTHORIZE AN AMENDMENT TO A
PROFESSIONAL ENGINEERING SERVICES AGREEMENT WITH CALPO, HOM, &
DONG ARCHITECTS FOR THE CONSTRUCTION OF THE HHWCF
IMPROVEMENTS PROJECT, DISTRICT PROJECT 8216
temperature control issues in the District's Vehicle Shop. The project work areas are
shown in Attachment 1.
CHD, CPS, and Staff prepared the plans and specifications for the project. The
Engineer's estimate for construction of the HHWCF Improvements Project, District
Project 8216, is $950,000. This project was advertised on November 9 and 16, 2009.
Four sealed bids ranging from $792,484 to $811,000 were received and publicly opened
on December 1, 2009.
The Engineering Department conducted a technical and commercial review of the bids
and determined that Bobo Construction, Inc. is the lowest responsive bidder with a bid
amount of $792,484. A summary of bids received is shown in Attachment 2.
On December 7, 2009, the second lowest bidder, W.E. Lyons Construction Co.
submitted a timely bid protest claiming the bid submitted by Bobo Construction, Inc.
contained material defects (Attachment 3). These defects were identified as:
1) Bobo Construction, Inc. did not list a subcontractor for the security and access control
system work.
2) Bobo Construction, Inc. did not list a subcontractor for the fencing work.
3) Bobo Construction, Inc. did not comply with the statement of experience bid form by
submitting their own forms.
Bobo Construction, Inc. responded to the bid protest in their letter dated December 7,
2009 (Attachment 4). Staff and Legal Counsel have determined the following:
1) Bobo Construction, Inc. has confirmed that the subcontractor for the security and
access control system is a second -tier subcontractor included under the electrical
subcontractor listed. Under California Public Contract Code Sections 4104(a) and
4113, second -tier subcontractors are not required to be listed on bid forms. In this case,
the electrical subcontractor is listed because its work will exceed' /2 of 1 % of the total
bid. The work in question is part of the electrical subcontractor's scope of work, which
is subcontracted to another entity.
2) Bobo Construction, Inc. has confirmed that they will self - perform the fencing work.
N:\PESUP \Position Papers \Engelage \8216 - Construction Award_Protest (counsel review).DOC Page 3 of 16
POSITION PAPER
Board Meeting Date: December 17, 2009
subject. HOLD A PROTEST HEARING TO CONSIDER W.E. LYONS
CONSTRUCTION CO.'S BID PROTEST; AWARD A CONSTRUCTION CONTRACT;
AUTHORIZE THE GENERAL MANAGER TO EXECUTE CONTRACT DOCUMENTS
WITH BOBO CONSTRUCTION, INC.; AND AUTHORIZE AN AMENDMENT TO A
PROFESSIONAL ENGINEERING SERVICES AGREEMENT WITH CALPO, HOM, &
DONG ARCHITECTS FOR THE CONSTRUCTION OF THE HHWCF
IMPROVEMENTS PROJECT, DISTRICT PROJECT 8216
3) Bobo Construction, Inc.'s bid was responsive in that the statement of experience bid
form was completely filled out with supplemental material attached to the bid
documents. The statement of experience submitted by Bobo Construction, Inc. is not a
material defect.
Therefore, Staff has determined that the bid submitted by Bobo Construction, Inc. is
responsive and responsible and Bobo Construction, Inc. is the lowest responsive bidder
with a bid amount of $792,484. A letter providing Staffs determination was sent to W.E.
Lyons Construction Co. on December 9, 2009 (Attachment 5). W.E. Lyons Construction
Co. has not responded to the District's determination, or subsequently withdrawn its bid
protest. Because of this sequence of events, Staff recommends scheduling a bid
protest hearing and conducting it only if the bid protest is not formally withdrawn before
this item is heard at the December 17, 2009 Board meeting. Staff is prepared to
present to the Board its case for why the bid protest should be rejected, should
representatives from W.E. Lyons Construction Co. attend and request that the bid
protest be considered at the Board meeting. In accordance with the Contract
Documents, the Board has the ultimate authority to determine whether a bid is
responsive and to waive non - material irregularities in bids received.
Staff will perform construction management and will provide contract administration,
inspection, survey, office engineering, and submittal review.
Staff recommends retaining CPS and CHD to provide support services during
construction for this project because both firms helped prepare the plans and
specifications and, therefore, have a unique understanding of the project design. The
construction support services include reviewing shop drawings and submittals,
responding to design questions, evaluating change order requests, performing site visits
to verify compliance with the design intent, and other related activities. Contracts for
construction support services with cost ceilings of $9,000 and $24,000 have been
negotiated with CPS and CHD, respectively. This will bring the total professional
service contract with CPS to $26,650, which is within Staff authority, and the total
professional service contract with CHD to $64,000. The funds required to complete this
project, as shown in Attachment 6, are $1,131,000. The total cost of HHWCF
Improvements Project, District Project 8216, is anticipated to be $1,286,000.
N:\PESUP \Position Papers \Engelage \8216 - Construction Award_Protest (counsel review).DOC Page 4 of 16
POSITION PAPER
Board Meeting Date: December 17, 2009
Subject. HOLD A PROTEST HEARING TO CONSIDER W.E. LYONS
CONSTRUCTION CO.'S BID PROTEST; AWARD A CONSTRUCTION CONTRACT;
AUTHORIZE THE GENERAL MANAGER TO EXECUTE CONTRACT DOCUMENTS
WITH BOBO CONSTRUCTION, INC.; AND AUTHORIZE AN AMENDMENT TO A
PROFESSIONAL ENGINEERING SERVICES AGREEMENT WITH CALPO, HOM, &
DONG ARCHITECTS FOR THE CONSTRUCTION OF THE HHWCF
IMPROVEMENTS PROJECT, DISTRICT PROJECT 8216
This project is included in the FY 2009 -10 Capital Improvement Budget (CIB) on pages
GI -29 and GI -30. Staff has conducted a cash -flow analysis of the General
Improvements budget and concluded that adequate funds are available for this project.
Staff has concluded that this project is exempt from the California Environmental Quality
Act (CEQA) under District CEQA Guidelines Section 15301 since it involves minor
alterations to an existing public facility involving negligible or no expansion of its current
use. Approval of this project will establish the Board of Directors' independent finding
that this project is exempt from CEQA.
RECOMMENDED BOARD ACTION: Staff recommends the following:
1. Find that the project is exempt from CEQA,
2. Reject the bid protest,
3. Award a construction contract in the amount of $792,484 for the construction of
the HHWCF Improvements Project, District Project 8216, to Bobo Construction,
Inc., the lowest responsive and responsible bidder,
4. Authorize the General Manager to execute the Contract Documents subject to
SUBMITTAL requirements, and
5. Authorize the General Manager to execute an amendment to an existing
professional services agreement not to exceed $64,000 with CHID to review shop
drawings and submittals, respond to design questions, evaluate change order
requests, and perform site visits to verify compliance with the design intent.
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ATTACHMENT
HHWCF IMPROVEMENTS PROJECT
DISTRICT PROJECT NO. 8216
LOCATION MAP
PROJECT SITES AT THE DISTRICT'S WASTEWATER TREATMENT PLANT IN
MARTINEZ, CA
SITE PLAN
NIPESUP \Position Papers \Engelage \8216 - Construction Award_Protest (counsel review).DOC Page 6 of 16
LOCATION OF THE DISTRICT'S VEHICLE MAINTENANCE SHOP IN
WALNUT CREEK, CA
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NAPESUP \Position Papers \Engelage \8216 - Construction Award Protest (counsel review).DOC Page 7 of 16
ATTACHMENT
HHWCF IMPROVEMENTS PROJECT
DISTRICT PROJECT 8216
SUMMARY OF BIDS
PROJECT NO.: 8216 DATE: DECEMBER 1, 2009
PROJECT NAME: HHWCF IMPROVEMENTS PROJECT
PROJECT MANAGER: SAMANTHA ENGELAGE
PROJECT LOCATION: 4797 IMHOFF PLACE, MARTINEZ, CALIFORNIA
ENGINEER EST.: $950,000
BIDDER
BID PRICE
Bobo Construction, Inc.
$792;484
9728 Kent Street
Elk Grove, CA 95624
916- 685 -2285
W. E. Lyons Construction Company
$803,000
1301 Ygnacio Valley Road
Walnut Creek, CA 94598
925 - 658 -1600
Aztec Consultants
$810,500
2021 Omega Road, Suite 200
San Ramon, CA 94583
925 - 837 -1050
Albay Construction Company
$811,000
865 Howe Road
Martinez, CA 94553
925 - 228 -5400
BIDS OPENED BY: /s/ Elaine Boehme DATE: December 1, 2009
NAPESUP \Position Papers \Engelage \8216 - Construction Award_Protest (counsel review).DOC Page 8 of 16
Attachment 3
LA REMOVED.
DEC 0 71009
W. E. LYONS, CC=
CONSTRUCTION CO. geCRETARYOF THE DISTMT
Since 1916
December 4, 2009
Central Contra Costa Sanitary District
ATTN: Ms. Elaine Boehme
5019 Imhoff Place
Martinez, CA 94553
SUBJECT: BID PROTEST — HOUSEHOLD HAZARDOUS WASTE COLLECTIONS
FACILITY IMPROVEMENTS (CONTRACT NO. 8216)
Dear Ms. Boehme:
Via this letter, please be advised W.E. Lyons Construction Co., an interested party in contract
number 8216, is formally protesting Bobo Construction as the apparent low bidder. Our protest
is based on Bobo Construction not properly executing the District's bid form as required by Part
11 of the bidding documents "Instructions to Bidders ".
Per Section 9 of the Instructions to Bidders and pursuant to Section 4100.et seq. of the Public
Contract Code:
-"The bidders shall submit the name, city, and state of the place of business of each
subcontractor who will perform work or labor or render services to the prime contractor
in or about the construction of the work or improvement, or a subcontractor licensed by
the State of California who, under subcontract to the prime contractor, specifically
fabricates and installs a portion of the work or improvement according to the Project
Documents, in an amount in excess of one -half of one percent (1 12 %) of the bid total as set
forth in the Schedule of Bids, Part 111, Section 1. The prime contractor shall indicate the
portion that will be done by each such subcontractor for each such portion as defined by
the subcontractor in its bid "
After review of Bobo Constructions' listed subcontractors W.E. Lyons Construction Co. found
two unlisted subcontract trades which exceed the one -half of one percent guideline, Security and
Access Control System and Fencing. We have enclosed for the District's review copies of bids
received by W.E. Lyons Construction Co. which will verify these dollar amounts exceed the
one -half of one percent guideline. Although Bobo Construction could self - perform this work,
they are not licensed as either a security or a fencing contractor.
Page 9 of 16
1101 Ygnacio Valley Road • WaInot Creek. CAA 9459$ • Tel 9'5 658 -I(9)0 • Fax 9'5 658 -1604
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Furthermore, Section 10 of the Instructions to Bidders states:
"Each bidder shall submit with its bid an experience .statement, substantially in the form
included herein as Part III, Bid Forms, Section S, Bidder's Statement of Experience. "
Bobo Construction neglected to execute the bid form as stated in the instructions to bidders. In
lieu of completing the District's forms, Bobo Construction submitted their own forms.
Pursuant to Part 11, Instructions to Bidders, Section 1 — Preparation and Submission -of Bids, the
District states:
"Bids shall be prepared on the forms included in Part III, Bid Forms. All bid forms shall
be properly executed and all blanks spaces shall be filled in. Any modifications to Bidder
supplied information shall be initialed by the Bidder. Failure to comply with these
requirements may, at the discretion of the District, be grounds for rejection of the bid. "
W.E.. Lyons Construction Co. is confident that Bobo Construction did not properly execute the
District's required bid forms and therefore should not be awarded the contract for the Household
Hazardous Waste Collections Facility Improvements Project (Contract No. 8216).
W.E. Lyons Construction Co. respectfully requests our formal protest be reviewed by the District
and ruled upon.
Sincerely,
W.E. Lvoo
Greg Ly'd
President
GEIJmab
Enclosures: Niscayah Bid Proposal
AAA Fence Company Bid Proposal
cc: Bobo construction .
WEL file
Page 10 of 16
5. 2009 12:11PM Niscayah Inc
NISC/1YAH
December 1, 2009
16 i
Company: Ce•
Fax Number: , /o ; 59If-
No.4026 P. 2/5
Proposal Number 10010061307
Subject: Central Contra Costa Sanitary District HHWCF Improvements Project No. 8216
Dear Sub Contractor:
Thank you for giving Niscayah, Inc. (Niscayah) the opportunity in providing a proposal to you for
the Central Contra Costa Sanitary District HHWCF Improvements Project.
Additional Project Related Information:
1. Niscayah labor is based on using qualified communications local IBEW low - voltage
union personnel to complete our field labor portion.
2. Niscayah has a current State of California C -10 Low - voltage license #472512.
The RFP response is per Volume 2, Appendix D, security proposal and details for
Schedule A and Drawings:
Confirmation:
1. Permits/Fees/Bonds: Any permits, fees or bonds required by city, state or local
municipality are to be paid and provided by others.
2. Terms and Conditions are per below Niscayah Terms and Conditions or provided Sub
Contractor not RFP CCCSDs,
Investment:
TAXABLE MATERIAL
$ 39 021.06
NON - TAXABLE MATERIAL
1,387.56
LABOR
S 21239
TOTAL LESS SALES TAX
$ 65,347.90
All prices quoted are valid for thirty (60) days from the date of this proposal.
Note: Equal quality part from a different manufacturer may be substituted to overcome delivery
problems or replacement of discontinued items. Substituted item will be of equal or greater value
and will meet or exceed original parts specifications.
Page 11 of 16
Niscayah, Ino. Proposal
Address: 401 Lennon Lane, Suite 125. Walnut Creek. Ca 94598 Page 1 of 4
Phone: 925- 979 -5272, Fax 925 - 256.3737 wuw.Niscayah.ua
From: 12/01/2009 13:08 #346 P.001/001
AAAA FENCE COMPANY, INC. Uc.No.522762
2746 SCott Boulevard. Snntn Clara. Crkifumin 95050 -14081727-5465 (800) 9565465 • Fax (408)97C)-8680
PROPOSAL. Attention:
Project: CCCSD Household Hazardous Date: 12/1/2009 Time: 2 :00 PM
Waste Collection Facility INCLUSIONS: UNION - signatory to Laborers' Union
Location: Martinez Addenda Noted: 1
Move -Ins Included: 3
Estimator: SCOTT R. HUTCHINGS Additional Move -Ins: $900.00
Includes Installation and Tax. [XI Prevailing Wage Included if Checked
Number of
Bid Item Description unns Type Unit P otal Pric
Site 1
Galvanized Chain Link Fence and Gate - Includes
LS
$13,500.
approximately 25' LF of 42" high fence including 1 each 6' wide
slide gate with full height posts per detials 1 on A1-6 and 8 1A0-
1. Also includes HHW Personnel Gate and fence as shown on
Sheet AIJ (approximately 40' LF of 8' high fence with slats +
barbwire and 1 each 42" single swing gate with Locinox Lockset
Site 5
Galvanized Chain Link Fence and Gate - Includes
$6,675.00
approximately 40' LF of fence with slats and barbwire including
1 each 42" wide single swing gate per Sheet A5 -1 for the South
Gate Area. The gate will be prepped to receive the hardware
from Group BE - Hardware to be supplied by others.
options!
Waiver of Subrogation on Workers Compensation
ADD
1250.00
Insurance
Insurance Is an additional $250.00
IMPORTANT NOTE - Dire to the Volatility of the Steel Market. prices quoted above are good nor airy 30 days from date of Proposal. After 30 days
price is subject to Re- Negodation, if terms cannot be readied AAA Fence Comparry, Inc. reserve the right to nullify this proposer.
EXCLUSID • Bond Premium, Waiver of Su brogallon on Workers Compensation Insurance, eullding Permits, Railroad Protective Liabifity Policy,
Spe . I Coverage Inaruance Premiums. Penalties for Delays beyond AAA Fence Control, Clearing I Grubl g, Grading, Concrete & Asphalt Patching,
Electrical and Grounding, Lampe Restoration, Traffic Control, Painting, Demo / Removal of fences, Engineering and Caleb, Embeds / Post Pockets
or Sleeves, Core-Drilling and Saw Cutting, Removal or Disposal of Din Spoils (Dirt spoils will be left near the fence post holes), Removal or Disposal of
Hazardous Substances, Padlocks 8 Locking Hardware, Concrete Mowbands and Flat Work, Liability For Locating Underground utilities, Liability For
Damages To Un- located underground Utilities, Temporary Fences, Surveys and Layout staking, Hardware Group be, Access Control System, Removal
of existing fences and Gates, Temporary Fence and Gates,
Nots:AJl Terminal and Comer Points shall be located and clearly marked prix to our crews arrival uNess otherwise indicated herein. Fence line location
is the sale responsibility of dte General Contractors..
Chan rd / Extra Work "be quoted prior to being performed and requires a written Charge Order prior to beginning 9 ill work. Any 6dm Work
performed on a Time and Material Basis shall be charges at $75.00 per man per hour for Normal Time and $112.00 per man per hour for overtime
($350.00 Minimum Charge), Equipment Charge cost plus 30%, Materials cost is standard Contractors price, Subcontractors cost plus 10 %. Time starts
when the crew leaves our yard and ends when the crew returns to the yard. Rates include our work truck.
Proposal is Valid for 30 Days - Acceptance of this Proposal will require this Proposal to be incorporated into the
Contract Documents as an Exhibit and shall include all Exclusions noted above. AAA Fence Company will be provided
with two complete sets of plans and specifications free of charge. Page 12 Of 16
Attachment 4
BOBO
CONSTRUCTION, INC.
December 7, 2009
Central Contra Costa Sanitary'District
ATTN: Ms. Elaine Buehme
5019 Imoff Place
Martinez, Ca 94553 =
Re: Household Hazardous Waste Collections facility Improvements (Contract No. 8216)
Dear Ms. Boehme,
We are in receipt .of the protest from W.F. Lyons Construction Co. and offer the following
response. Our electrical subcontractor has the security system as a tier subcontractor of his;
therefore we are not required to list that portion of work. This is common practice that electrical
contractors include low voltage subcontractors:
In regards to the fence, we will either self perform that portion of work or if we do subcontract it
out, it will be below '/a of 1% of the overall contract amount. We are certainly properly licensed
for this portion of work.
Regarding the bid, form, we did not modify it; Nye supplemented it with the required information.
Regardless, this is inconsequential:
This bid protest holds no merit whatsoever and is merely a sour grapes attempt to cost the district
more money. We look forward to another successful project with Central Contra Costa Sanitary
District!
Sincere -
Chris Bobo
President
Bobo Construction, Inc.
Page 13 of 16
9728 Kent Street • Elk Grove, CA 95624 • Tel: 916.685.2285 Fax: 916.685.7373. • www.boboconstructioninc.com CA Lic No: 183537
Attachment 5
December 9, 2009
File: 8216.8.3
CERTIFIED MAIL NO. 7007 0710 0004 6169 6059
Mr. Greg Lyons
W.E. Lyons Construction Co.
1301 Ygnacio Valley Road
Walnut Creek; CA 94598
PHONE: (925) 218 -9500
FAX: (925) 371 -7891
www.ceniralsan.org
JAMES M KELLY
General Manager
KENTON L. ALM
Counsel far the District
(510) 808 -1000
ELAINE. R. ROEHM£
Secretary of the District
Dear Mr. Lyons:
HOUSEHOLD HAZARDOUS WASTE COLLECTION FACILITY (HHWCF)
IMPROVEMENTS PROJECT, DISTRICT PROJECT 8216, PROTEST OF BID .
Central Contra Costa Sanitary District (District) staff has carefully reviewed your timely
protest dated December 4, 2009, pertaining to the bid submitted by Bobo Construction,
Inc. (BCI) for the HHWCF Improvements, Project. A summary of our response to each
protest issue is as follows:
(1) . BCI has included the Security and Access Control System subcontractor as a .
second tier subcontractor to their listed electrical subcontractor and,
therefore, need not list them in the bid documents.
BCI will self - perform the fencing work and is properly licensed to do so.
(2) District staff finds that BCI has substantially completed all bid forms.
Based on District staff and legal counsel review, it is our opinion that the issues raised
in your protest letter do not raise material variances from the specifications requiring a
bid disqualification, nor would result in a material change in BCI's bid: Therefore,
District staff will recommend to the District's Board of Directors that they reject your
protest and award the contract to BCI, the lowest responsive and responsible bidder, at
the December 17, 2009 Board meeting:
Page 14 of 16
NAPESUMDESIGNOstrict Proiects\821618216_19id Protest_Response.doc, Recyt;ed Paper
Mr. Greg Lyons
W.E. Lyons Construction Co.
Page 2
December 9, 2009
Please contact me if you have any questions.
Sincerely,
I � 1/
T. T
Ior Engineer
SE:cb
cc: S. Engelage, CCCSD
A. Farrell, CCCSD
J. Kelly, CCCSD
T. Pilecki, CCCSD
Bobo Construction, Inc.
R. Pioroda and K. Alm (Legal Counsel)
Page 15 of 16
NAPESUPOESIGNOstrict Projects\821618216_Bid Protest Response.doc
ATTACHMENT
HHWCF IMPROVEMENTS PROJECT
DISTRICT PROJECT NO. 8216
Percent of Estimated
No.
Item Description
Amount
Construction Cost
1
CONSTRUCTION
a. Construction Contract
$792,484
b. Contingency at 20%
$158,516
c. Permits
$50,000
TOTAL CONSTRUCTION
$1,001,000
100%
2
CONSTRUCTION MANAGEMENT
a. District Forces
Construction Management and Inspection
$97,000
b. Consultants
- Calpo, Hom and Dong Architects
$24,000
- Complete Project Solutions, Inc.
$9,000
TOTAL CONSTRUCTION MANAGEMENT
$130,000
13%
3
TOTAL CONSTRUCTION PHASE COST
$1,131,000
113%
4
PREBID EXPENDITURES
a. Design
$119,000
12%
b. Planning
$36,000
4%
TOTAL PREBID EXPENDITURES
$155,000
15%
5
TOTAL DESIGN AND CONSTRUCTION MANAGEMENT COST
$285,000
28%
6
TOTAL ESTIMATED PROJECT COST
$1,286,000
128%
7
FUNDS AUTHORIZED TO DATE
$155,000
8.
ADDITIONAL ALLOCATION NEEDED TO COMPLETE PROJECT
$1,131,000
Page 16 of 16
&a4�
Central Contra Costa Sanitary District
December 11, 2009
TO: HONORABLE MEMBERS OF THE BOARD
FROM: JAMES M. KELLY, GENERAL MANAGER
SUBJECT: CONTRA COSTA COUNTY EMPLOYEES RETIREMENT
ASSOCIATION
On January 11, 2010, the Contra Costa County Employees' Retirement Association
(CCCERA) Board will meet and receive public comment on the legal analysis they
requested from the law firm of Reed Smith (attached). The purpose of this
memorandum is to provide the District Board with further information relative to some of
the statements made in that analysis, and to determine if the District Board wishes to
take a public position regarding the recommendations contained in that analysis. It also
inquires whether the District Board requires additional information for further
consideration at the January 7, 2010 District Board Meeting.
As you may have noted, the legal analysis presented to CCCERA points out that much
of the confusion and apparent misunderstanding of the applicable law by employers has
been the result of statements by CCCERA in its own policies. The report then states
that some members "may have taken advantage of this Policy statement" by cashing
out more than one year's accrual of vacation at the time of termination and including all
of this cash out as part of terminal compensation.
In fact, the Member's Handbook specifically states that "unused vacation pay" is to be
included in the retirement calculation, and adds that employees who are in a job
classification that "includes the ability to sell vacation hours, the value of vacation sales
within the final average salary period before you retire will also be used in calculating
your final average salary". There is no indication in this policy statement that such sale
of vacation hours applies only to hours earned in the final year. In addition, the District's
Controller received a letter from CCCERA's Retirement Accounting Manager in 2000
that states that in addition to "lump sum payments of items such as vacation" which it
said were limited to the amount earned in the final year, "vacation; holiday or sick leave
that is sold back to the employer under a cash out agreement is included in
compensation earnable ". These are some of the principal reasons that the District, and
others, have relied upon the CCCERA policies and included these amounts in the final
calculations. In addition, the form developed by CCCERA for the agencies specifically
requires that these amounts be included by an agency's payroll department for each
retiree. Under these circumstances, it is the District's intention to continue to follow
those policies until they are changed or modified by CCCERA with respect to all of the
members.
It is uncertain what action, if any, the CCCERA will take in response to the legal
analysis prepared by their counsel. The recommendations include determining whether
changes to CCCERA's "policies and practices would be appropriate in order to bring the
system into compliance with currently applicable law ", which seems to presume that its
own practices and policies have been, at least in part, responsible for this situation.
Another recommendation is that CCCERA determine to what extent "it is appropriate to
take corrective measures as to current and future retired, active and deferred members
of the system, including recalculation of benefits, arrears contributions and other
actions ". It may be that the District Board wishes to take a position at the CCCERA
meeting on January 11, 2010 with respect to any of those issues. Staff is seeking the
District Board's input as to whether it wishes to take any position on the range of options
available to CCCERA, or whether it prefers to make that determination after the
meeting, based upon additional information as to the intentions of CCCERA.
At the District Board meeting on January 7, 2010, this matter could be further
discussed, and additional information provided to the Board, based on the Board
discussion at the December 17, 2009 meeting.
cc: Randy Musgraves, Director of Administration
Cathryn Freitas, Human Resources Manager
Elaine Boehme, Secretary of the District
Debbie Ratcliff, Controller
Daniel Clinton, Hanson Bridgett
bcc: Kent Alm, District Counsel
ROWSM- th
Reed Smith LLP ,
101 Second Street
Suite 11800
San Francisco, CA 94105
Harvey L. Leiderman +1 415 543 8700
Direct Phone: +1 415 659 5914 Fax +1 415 391 8269
Email HLeiderman®reedsmith.com reedsmiih.com
October 21, 2009. ,.
CONFIDENTIA15 AND PRIVILEGM,, i,•, i
ATTORNEY - CLIENT CON'IMUNICATION.
?I
ATTORNEY WORK PRODUCT
Board of .Retirement ,
Contra. Costa County Employees' Retirement Assn..
1355 illow Way, Suite 221
Concord, CA 94520..
Final Compensation and Retirement Benefits` _ Y. I- t 0 :� .
Dear Members of the Board"
You have asked us to advise the Board as to current issues affecting.the retirement system's,. .
deterrniriation of the "final compensation" on which members' retirement benefits. are calculated..
Following is a- -summary of the outstanding issues together with'our legal analysis, conclusions,and,.,
recommendations for further Board consideration: « ;• .;, . ,;
SUMMARY Of. ,ISSU
ES.
CCCERA has a statutory obligation to pay the proper amount of retirement benefits to each of its
members and beneficiaries; as provided by,law.k.Indeed; -it• "cannot - fulfill (its fiduciary] mandate unless ;_
it investigates applications' and pays benefits only toA ose inembers who arc cligible,for them
lllclntyre . v:= Santa'Barbara`C6unty'Employees' Ret: Sys (2001) 91'Cal App ilth.730; 7.34 In order to
discharge, that obligation; it is the Board's responsibility to do ermme.the proper elements that'go i. n: to:'- ; •„
calculating a member's benefit, as recognized bythe laws`governing the rctirerrtent system.'As those;
laws evolve over time, the Board's policies must evolve with them.
A CCCERA member's service retirement allowance is based on four factors: (1) the statutory benefit
formula applicable'to thatinember; (2) the member's' age`at "retirement; (3) the member's years of '
credited service;'arid "(4) the member's' "final compensation.
In order to properlydetermine'a member's final..comperisation, the retirement system must.clearlyq
specify the elements of remuneration that are and are not includable in the calculation. This requires .
that the reporting system between CCCERA and each participating employer is sufficiently precise so as
to enable CCCERA to distinguish between items of remuneration that are and are not properly included
in a member's final compensation.
NEW YORK • LONDON ♦HONG KONG ♦ CHICAGO • WASHINGTON, D.C. • BEIJING • PARIS ♦ LOS ANGELES • SAN FRANCISCO • PHILADELPHIA • PITTSBURGH
OAKLAND • MUNICH ♦ ABU DHAGI ♦ PRI,NCETON • NORTHERN VIRGINIA • WILMINGTON • SILICON VALLEY • DUBAI • CENTURY CITY • RICHMOND • GREECE
Confidential and Privileged
Board of Retirement
October 21•; 2009
Page 2
Reed Sim ith:
CCCERA's current policies and definitions used in determining its members' retirement allowances
were last revised over a decade ago. Since that time, developments in the law and in public employee
compensation practices have evolved in important ways. In addition, recent public attention has been
focused on certain employer and employee practices that have led to unexpectedly inflated retirement
allowances being received by certain CCCERA members; the media has labeled this "pension spiking."
It is prudent at this time, then, to revisit CCCERA's policies and delinitions'andconsider revising them
in order to assure that the system and its stakeholders continue to be aligned'with applicable law.., ~ .
This letter reviews the current rules for determining a member's, "final compensation," addresses some
of the specific areas of concern that have been raised and makes recommendations. for further Board'
consideration:
LEGAL AND FACTUAL BACKGROUND;.'
DeterminingA Alember's Final Compensation Under CERL
In 1997, the California Supreme Court explained: "[T]here is a logical progression in the statutory
framework under which a [CERL] pension is calculated. Application of section 31460 is the first step,
since an item must meet its broad'definition of `compensation' if it is also to fall.within the narrower....
category. of `compensation eamable' defined in section 31461 and.thus form the basis for the calculation
of `final compensation' on which the pension is based pursuant to section,..:. 31462.1:.' Ventura County.=
Depuly.Sheriffs' Assn v. Bd. of Rel. (1997) 16 Cal.4th 483.193 94: �r
Thus, m order to.determme a member's final compensation the retirement system must go though the
following three step process:
STEP ONE!. The system must determine which employment remuneration and advantages properly ,
constitute. "corpensation." 'Section• 31460'proyides: "`Compensation' means. the remuneration paid in
cash out of county,6f district, funds, plus-any amount deducted front _a member's wages for:pikicrpation ,
in a deferred c6mpensationplan.:.: but does not include:tfie monetary value.of board lodging; fuel,',
laundry,, or. other advantages furnished . to a member:'.'
• This definition fillers out any item of value that was not paid in cash to the member.
STEP TWO: -Once "compensation" is determmed,.the retirement system must determine how, much of
that "compensation" qualities as "compensation.eamable." CERI. Sce,tion,31461 provides:.
'"Compensation earnable' by a member means the average compensation as determined by the board,
for the period tinder consideration upon the.basis.of the.averaee number of days ordinarily worked by
persons in the same grade'or'class of positions during the period, and at the same rate of pay.; .... ;
Compensation, as defined in Section, 31460; that has been deferred shall be deemed °compensation
earnable' when earned rather than when paid.
• This definition has two primary impacts: (1) it filters out compensation for overtime work,
because it is not based on the "average number of clays ordinarily worked" by comparable
Confidential and Privileged
Board of Retirement.•
October 21, 2004
Page 3
Rd-%e dSmith
employees; and (2) it filters out compensation that'ivas earned outside of the.frnal compensation,
period, even if it'ivas` paid ditring'tliat period
STEP TFIREE The retirement, system must determine how much of "compensation earnable" qualities
as "final compensation. Section'314. 2.1'provtdesi "`Final compensation' means the average annual
compensation.earhable by a membei during any year elected by a member at or before the time he files
an application for'rettremenf; "or; if }ie fails to'Odct 'during the year immediately preceding his-. ,
retirement.'.'
•
This definition means that CGCLRfI` uust include in fnal`compensation only,the amounts of
"compensation'earriable" drat tivere paid thiring lhe.s,ingle, contiguoiis •365 -clay period chosen ,
by the rnernher:cis his or her "final'co'mpen3•atr'on" period (rsually the last year of employment
when salary and benefits are at their- highest.);
,r
Distilling this three' -step pro6ess;'a general` rule emerges =-
To be included *iit•final•eornpensatioin an amount must be•both (a) earned -by the member and (b),j
paid (or payable) to the- member during the member's final compensation year, and it must.not-,:,,
represent overtime pay.
K. i. } - o'.1ii:�: .a. 'iii `n ., u`' i Y .,. .. }• to f. .'.3.. .! c.Y, ,Iy, S „
r,
Case Law Interpreting CERL
P 1 _
4
• tF
In the Ventura case cited above; the California Supreme Ctiurt ruled that CERL systems had, for many i a
years, been improperly excluding manypay.items from members':. final compensation.. Such items
included payments in cash for bilingual premium pay, uniform maintenance allowance, e. ucatiorial ,
incentive'pay, additional compensation for scheduled meal periods, pay in lieu of annual leave . accrual,
holiday pay, moforcyc le.l onus; field'traming officer bonus and ii 1oingevity,•iricenttve
,After, Ventura, two cases in the lower appellate courts addressed the question;of wffether accrued leave
that could be'conyerted.to cash onlv'upon'termmatton should be tncluded•in-a member's final "
cornpen'§Ad'n: Both courts answered `thatquestioninthenegative.' '`_ a. i}
In the 2003 case, In re Retirement Cases (2003) 110 Cal.AppAth 426, the First District Court of Appeal
(which"feviews appeals from the Contra Costa County Superior explained ..;`Where art employee..,-.
cannot'ordoes not elect to rcceivetcash' in lieu'of the' accrued: time, off prior to retirement; the benefit•,. -.:.
rematns`one of time'rath'ei tha'n'cash. The right to'a.tetmination pay.cash =out arises only- upon _ -..
retirement.': , the right does not arise prior to retirement of during service:" The court:went on to state:
"sve'tioId that te`rminationpay' that is" received uponietirement is-not required under CERL to be:
t Some CCCERA members are subject to the three year final compensation period under section 31462, in which case
their "final compensation" isthe average of each of those tinalthree:years: For case of reference in this, analysis,,we.wiII
refer to a one year final compensation period: '�he.principles, discussed hereinxalso.apply to, a three year ;final compensation
period.
Confidential and Privileged
Board;of Retirement
October 21, 2009
Page 4
ReedSmit,h:• ,
included in the-calculation of pension benefits." Id. at 4.76. The court found this result clear under the
statute: "This language is not ambiguous; it plainly excludes [compensation paid,only ail retirement and
we will not rewrite the statute." Id at 475.
,'.; •y :.•t,. .• . , .. art(: / .'` i.t .., - .. .'., �t,.,, r ,y
A year lateri the appellate court for the Fourth District Court of Appeal (San Diego) addressed the same,.
issue under CERL• and ruled in the same.way, explaining:, "As In re Retiretnent.Cases'inakcs clear, a
public employer's decision to- provide, cash. reimbursement for.unused leave, after, separation from
service, does not alter the noncash nature of the leave. Such one -time post - termination payments cannot
be considered part of final compensation without creating the risk of substantial distortion in the
retirement benefits otherwise payable to employees:" Suhis v, San Diego County Einployees Retirement
Assn. (2004) 117 Ca1.App:�lth 73 "There is nothing in CERL which suggests thetegislat4e- intended
pensions shouid.vary so.widely on the basis of accrued and unused leave, rather than on the basis_ of,agc,
years of service and salary." Id. at 740.
Salus was consistent with the same appellate court's interpretation of the analogous law governing;;
Ca1PERS in Hudson v. Bd. ofAcbnin. (1997) 59 Cal.AppAth 1310, 1321, where the court ruled thai''
"[t]he exchisionof final settlement pay froiireompensation , was. intended,to,eliminate distortions,caused. ,
by extraordinary" increase's just prior to .retirement.x " .: ;�: n�r.•_ :r,•� = :z•.•r=
In addition to the exclusion of "final settlement" or "terminal" pay from final compensation, Salus also
noted that Ihidson had excluded from final compensation payments made solely on condition that the
employee retire.. In Hudson, a PERS- participatmg,city had agreed to convert non cash benefits to cash,
,
salary in�certain managerial employees'. final year of employment to encouiae them fo retire wtih a
higher benefit Nth they'wouldhave otherwise-re'ceived:: The appellate courtfound.that such..._
conversions should not be` included in final compensation,` to avoid the improper•,:'spiking" of pension
benefits. See; Sohis, 117 CM.AppAth at 7411: r _•. :; '
Kistory ofFina/ Compensation Determ inations by CCCERAt
Following::Ventura, inDeeember,� 199.7, thd'CCCFRA Board adopted a Policy called 1'Determirung
Which Pay Items-are- 'Compensation' for Retirement, Purposes," m.order to mplemenf the court ruling. 1
The Policy itemizes the pay items that would and would not.be included when determimng.a member's,:;
final compensation. The Policy was amended a few weeks later. See Attachment A.
Meanwhile,`after Ventura, litigation arose or was threatened in most CERL counties (including Contra,, ;. .
Costa) over (ayseveral additional-pay items- that.were;not specifically addressed in V,eniura, and (b)
whether Ventura applied to members who; had.already. retired before the ruling:,. This is the litigation that
ultimately resulted in the In Re Retirement case discussed above,.where >the claims of active and retired,,
members and plan sponsors in CERL counties across the state were coordinated into.a single proceeding,..
in San Francisco County Superior Court. _
The liti;ation'involving CCCERA, the County and CCCEF_,Vs participating districts resulted: in a court
approved settlement agreement in 1999 known as the Paulson settlement. The.treatment of most
participating employers' pay codes was specified in exhibits to the settlement. See Attachment B.
Confidential and Privileged
Board of Retirement'
October 21, 2009
Page 5
ReedSmfth-'
The CCCERA Policy and the Paulson settlement allow for the inclusion of amounts paid at termination .
to the extent those amounts were earned (but not necessarily payable) during the final compensation
period. This treatment became inconsistent with the later rulings in In Re Retirement and Salus -
(discussed above), because under those rulings no, terminal pay should be included in final compensation
unless it was both (a) earned and (b) payable ( "cashalile' °)'during employment;
Anticipating later legal developments, however, the Paulson' settlement expressly 'states: "All Parties
agree that any subsequent detepninattons by 'd court of competent °jurisdiction that enlarge, define;>
narrow, or m any other way relate to the scope of the decision of the [Ventur'a case]'or the items -of
compensation to be included for benefit •purposes under[CERL],shall have'rio'effecf on this Settlement
or.its terms." Thus, the parties. to Paulson (including CCCERA)�.igreed;that, ever, if it courtlater ruled,:a. .
that all termination cash outs should be excluded from final•eompensatton;'that ruling'would'not impact
the class members' rights,under the settlement to have termination cash outs included if the cashed -out
time was earned during the final compensation period '
The Paulson. litigation was brought bv,retired CCCERA members; to incaease their retiremenTbenefits.
Active employees-were also threatening suit,at,the time,, and', theircouiiterparts had already filed similar
'litigation in other. CERL counties., For that reason, the CCCER`A Board'detcmimed-that•iY.would-'
voluntarily. a I . the same terms to all members, re =ardless of active,'iettred or deferred status: Asa'.'
Pl? y g .
matter of law, however the Paulson settlement`is riotrbtndtng as to any member who retired'after
September 30;.1.997, and the Board is not bound by the Paulson'se-tilement as-to any sue members or
their beneficiaries:. a ..
e.
ANALYSIS
Final Coiniensation Properly bicll;dle ititore Than Just Brice Salary
Before addressing the areas of concern', if is important to note that; under`tfie binding Ventura precedent, y
more than'just base salary isFproper•ly` included in'a'memder's' finalcompensation1 For• example, items
like "management incentive pay" (additional cash payments for managers), "vehicle allowance" (cash,
payments to employees who use their own cars for work purposes) and "stand -by pay" (cash payments
in recognition.of members' availability after normal working hours) are properly_ included in the
calculation, of a member's final compensation under both CER . and the Paulson settlement. These
inclusions doe not, constitute improper "spiking" of benefits, as has been contended in the media. Under
law, the CCCERA Board must include these items in members'. final compensation for tiie purpose of
calculating their retirement allowances. It,has no discretion to do. otherwise.
Confidential and Privileged
Board of Retirement.; . ReedSmith.:•,;
October 21, 2009 '
Page 6
Areas of Concern
"Straddling..
The timing of a member's cash out of accrued vacation or leave 'can sometimes be structured so t at two ��
,.-
cash outs earned in two differenttiscal •years will fall'within a single 365 day final compensation period.
%Many employers only permit one cash out per fiscal year, but even with that restriction, it may be
possible for a,member,to choose a final compensation period that "straddles "'rivo tiscal 'years' worth of
cash outs. Although both cash outs are paid during the member's chosen teal corripens ' ion period,
they are not both fully carried during_the final .compensation per Accordingly; at least •one of the
cash outs should be excluded from. the member's final compensation (and no time should be included if
it was earned before the member's final z
compensation year). -
Cash Out of Accrued Vacation or Leave Eartied hi PH& ears
X'
CCCERs Policy states; "The value of accrued time, such as vacation, holiday or sick leave, that is
sold back, to the employer by the employee each year under a `cash -out' a'gr`eeinerif 'is includable in':
compensation.eatnable. "' :: The exhib16 to the Paidson settlerhent also state flier annual.vacation cash out
is pensionable. While this statement to the Poltcyls genemllyconsistent with the Venturd'precedent, it'
appears incomplete,bccause it does:not expressly, require the vacation time cashed out to have been
earned in the final, compensation period. Thus, some participating employers and members may be
reporting vacation .cash out as pensionable compensation, when it does meet both the "earned and a
"cashable" legal requireni nts. Ot -
It also appears that some members may have taken advantage of this Policy siatement by cashing out
one year of accrued vacation in their final year of employment and then reporting to CCCERA as
pensionable compensation another year's worth of accrued vacation cash out at termination. This has
the impact of including two years' worth of vacation accrual in, a. single final compensation year:.
Although both years of vacation accrual. were patd.in.the final compensation year bydefinition only one.
(at most) could have beetn.garned.in that.year. Under applicable,law, 'members should not be allowed to
include more than one, year's worth of accrued vacation cash out their tinal_compensation (or no more
than three years' worth of-accrued vacation,cash out if the member•has a three year final compensation
period).
2 Under some circumstances, a memlicr maybe able to achieve a higher retirement allowance_:.. -
through,a type of "straddling" that is consistent with CEIkL and the Paulson settlement: This could- : ,
occur when an employee is allowed io cash•out in orie fiscal year' less than• she may have earned during:
that year. For example, if a membei earns 160 hours of vacation each fiscal year, but is allowed to cash
out only one -third of that time each fiscal year, the member could legitimately "straddle" two. .fiscal...
years and cash out two - thirds of her earned and accrued 160 hours (� 107 hours). Under this scenario,
all 107 hours of vacation cashed out would have been both earned and paid (or payable) during the final
compensation period. Thus, all 107 hours would be properly included in the member's final
compensation.
Confidential and Privileged
Board of,Retiremerit*
October 21, 2009 We* dSm th `
Page 7
Cash Outs Upon:Termination
As explained above, CCCERA has historically applied the terms of the Paulson settlement to all;of its:
members even though . the settlement is only binding with respect to members who were retired on or
before September 30, 1997. Under th'e Pairlson`settlemcnt cash outs ai termination are' includable ini
final compensation'to the extent the time cashed"out was earned during the final'compensation period:
This aspect of the Paidson settlement would be inconsistent with In Re Retirement and Salus if members
were able to include more cash ouis in their final compensation tlian'they could have converted:from',
time to cash iri.during the final':compensation year of their. employment `
While.the Paulson settlement bound the Retirement Boardto this practice with respect to members who•
retired.on or before September,30, 1997, it did not bind the Board with respect to members .who have:.
retired after. that date. Thus, for members retiring after September 30, 1997, case law indicates that cash
outs payable onl$ at termination oughtnot be included' in fihal-contpensation =,
EXAMPLE
To better illustrate how these (sometimes overlapping) issues play out;. below is an example of a
member whose $283,958 annual retirement allowance was recently highlighted in the Contra Costa
Times.
In addition.to a $222,507_base salary, the em to er':re orted to CCCERA t he following compensation as
having been paid to the memberiwhis final compensation year
• $4,906: -= "management pay'-'..,
$11,074 "stand -by pay,;
• _ $8,400 -- "auto allowance,,_
• $18,810 = 160.hours of administrative leave cashed out in his final compensation year
• $18,833-- 160 hours of vacation time cashed out in his final compensation year
• $28,121 - 240 hours of vacation time cashed out at termination
In this example, the first three items were properly included in the member's final compensation under
case law and the Paulson settlement. The problems appear in the amounts of cashed out administrative
leave and vacation time the member had included in his pensionable compensation.
Regarding the administrative leave, it is our understanding that this member earned 80 hours of
administrative leave per year and could`cash-out'up to the same ainount each year. during employment.
During his final year, however, he was permitted to receive (and submitted to CCCERA as additional
Confidential and Privileged
Board .of Retirement}
October 21;2009
Page 8
ReedSmith:,;
"final compensation ") the cash value of 160 hours' worth of administrative leave (by "straddling" two
fiscal years with his final compensation year.) This means that he had 80 hours of leave cash out
included in his final compensation that at a minimum was not earned during his final compensation year,;
Thus, half of the administrative leave figure may have been improperly included in his final
compen'satioit;, resulting in excess final compensation of $,9,405..,-.,,. 's
Regarding'the vacation cash.outs, it is our understanding that this, member earned 240 hours of vacation'...
per year; but he was only, allowed to cash out a maximum of 80 hours'each year He, was, also permitted
to cash out at least 514 hours of accred vacation at the time of his termination._ By engaging in "lawful
straddling", (see footnote 2 above) this member would,have been able cash out -up to 160 hours of
accrued vacation that, would have been both.earned apd'paid (or, payable) in cash during,his.final
compensation period. That amount is properly included in his final compensation: However, the
addition 240 hours above and. beyond that amount was not permitted to be included. Including this
overage resulted in.excess final compensation -of $28;121
-. z
In the above example, the member's . fmal,compensation appears to, have been overstated by at least, .
$37,526. With 30.27 years of service credit, his annual retirement benefit may be overstated by
approximately $34,000 per year, plus compounding. COLA increases on that amount, for the rest of his
life (presumably another 20 to 30 years). Thus, we can see how just one example of what the press
labels "pension spiking" (albeit an extreme case) could result in a benefit cost approaching a million---.
dollars over time'.--',"
CONCLUSION AND, RECOMMENDATIONS`
Many items of remuneration that members are paid in addition to their, ase salaries are properly .. `.
included in calculating their final compensation. This is not "spiking." The word "spiking" should be
reserved for the purposeful manipulation of a member's final compensation in order to.tncrease a
retirement allowance beyond what the law allows ;;.
`.
It appears that,CCCERA's Policy and inconsistencies mthe reporting systems between CCCERA arid;
some of its participating employers 'may be enabling an' overstatement of pensionable.c,ompensation by
some members of the system. It would be prudent now to consider appropriate adjustments to.
CCCERA's policies and practices-in order, to avoid potentially substantial.future unfunded costs to the
system, its participating employers, and ultimately, the county's taxpayers.
We recommend that the Board proceed as follows:
1. Research and evaluate selected employer pay and reporting practices to determine whether and to
what extent the*overstatcment of final compensation may be occurring in�the retirement system.
2. Determine whether and to what extent employer and employee contributions have been collected on
elements of compensation that are not properly includable in final compensation.
3. Determine what changes in CCCERA's policies and practices, if any, would be appropriate in order.
to bring the system into compliance with currently, applicable law.
Confidential and Privileged
Board of Retirement
October 21, 2009
Page 9
ReedSmith
4. Determine whether and to what extent it is appropriate to take corrective measures as to current and
future retired, active and deferred members of the system, including recalculation of benefits, arrears
contributions and other actions.
5. Determine whether recent improvements in the reporting and processing of retirement benefit
calculations will improve the delivery of the proper level of benefits to the members of the system.
We will be pleased to address these issues with the Board at its upcoming meetings.
Resp ctfully, .
Har y L. eiderman
c: Marilyn Leedom, CEO
Karen Levy, Counsel
Item No. 6.a.2.
CCCSD CAPACITY FEE PROGRAM
Special Study Update
December 17, 2009
Curtis Swanson
- OVERVIEW
. Review of Previous Special Studies
Kaiser Medical Center, Walnut Creek
County Juvenile Hall, Martinez
. New Special Study
John Muir Medical Center, Walnut Creek
Capacity Fee Special Study
:• Under the District Code, a special study.is
prepared to non - residential users where the
Board has not established a RUE factor.
:• A user may request a special study to address
a site - specific wastewater discharge. In this
case, the user pays a fee for the study.
:• A special study sets the wastewater strength
and volume for a particular business or
industry.
:• As a practice, special studies are reevaluated
after 2 to 5 years of operation.
Kaiser Medical Center
Expansion
Item
Initial
Study,
2008
Review
2009
Review
Water use
49,372 gpd
80,640 gpd
52,503 gpd
Capacity
228.459 RUE
305.581 RUE
242.948 RUE
Capacity Fee
$173,795
$372,153
$211,061
Additional Fee
Owed
--
$198,358
-0 -*
*(No fee owed if RUE are within + or - 10% of initial study)
2
f,
J
. Kaiser Medical Center Expansion
. Multi -phase expansion began in late
1990s.
• Completed in 2003.
• Water usage continued to rise from
2001 to 2007.
• Water usage decreased 42% in 2008.
• No additional fees owed based on 2009
water usage.
County
Juvenile Hall
Item
Initial
Study
2008
Review
2009
Review
Water Use
91000 gpd
16,532 gpd
81870 gpd
Capacity
45 RUE
82.66 RUE
44.35 RUE
Capacity Fee
$151,200
$277,741
$149,024
Additional Fee
Owed
--
$126,541
$ 0*
*(No fee owed if RUE are within + or - 10% of initial study)
3
3
County Juvenile Hall
Cam•
. Original facility capacity was 160 beds.
. New 240 -bed facility completed in 2005.
. Planned to remove an older 120 -bed facility.
. Capacity fees were based on a net increase
of 120 beds.
. Older 120 -bed facility has been deactivated.
. Water usage declined 24% during 2008.
. No additional fees owed.
-John Muir Medical Center
• Expansion began in 2008.
• New 5 -story structure to replace 7 -story
building.
• Anticipated completion in 2012.
• Preparing a special study now.
• Preliminary determination is that
$670,000 in capacity fees will be owed.
4
Q
4
Next Steams
. Kaiser Walnut Creek & County Juvenile Hall
> Monitor to verify water usage &
sustained conservation.
. John Muir Medical Center
> Monitor construction of hospital
expansion.
> John Muir Medical Center plans to pay
fees in Fiscal Year 2010 -11.
E
lltt� fiA
Item No. 6.a.3
HALL DRIVE SEWER
IMPROVEMENTS
DESIGN ISSUES
December 17, 2009
Existing Sewer History
• Rear yard sewer installed in 1952
— High maintenance
— Improvements constructed over pipe
— Within drainage creek bank / aerial creek
crossings
— Soil movement
Hall Drive sewer installed in 1990
— Deep to allow homes to connect
— Began design for new sewer closer to
home
1 1
i
New Sewer
• Continue original design concept
— Installing new sewer closer to home
— Will require re- routing laterals
— Will obtain TCEs and new permanent
easements
— Construction will utilize trenchless
technology as much as possible
— Project planned for summer 2010
2
M
----- ------
I �
I
r
�s — —.--
.. —_r
__
ic¢m.r
1
ooswz -v.n
oro.rb as
_:•
i i
9200 H 1 Drive
New Sewer
• Continue original design concept
— Installing new sewer closer to home
— Will require re- routing laterals
— Will obtain TCEs and new permanent
easements
— Construction will utilize trenchless
technology as much as possible
— Project planned for summer 2010
2
M
f
J
200 Hall Drive
Sewer Lateral Options
• Private pump system
— Homeowner responsible for all operation
and maintenance
— District.Ordinance, Title 9, Chap. 9.40
• Gravity sewer above ground
3
5
M HALL DRAl,
HALL D
BRIDC3E c
N.M.—
3
Agenda Item 6.a.4)
Board Meeting of December 17, 2009
Written Announcements:
Finance Update
a) State Proposition 1A Receivables Program
The State's Proposition 1A Receivables Program financing closed the
morning of November 19, 2009. $1.895 billion of Revenue Bonds were
sold with an interest rate of 4 %. This securitization amount represents
about 95% of the State's property tax take. The 1,270 participating local
agencies included 410 cities, 803 special districts, and 57 of the State's 58
counties. The average receivable was about $1,492,000. Stone and
Youngberg was one of the five banks in the underwriting syndicate.
The District did not participate in this program and instead will be repaid
by the State in three years with interest at 2% per year.
Program Update
b) Clean Water Program Service Agreement
Inspection services under the Clean Water Program (CWP) Service
Agreement were suspended on July 1, 2009, due to delays with finalizing
the agreement. The most recent delay is associated with the CWP waiting
to receive signed resolutions from the participating cities. The CWP has
received signed resolutions from several cities and has provided us with a
fully executed service agreement. District inspectors have begun services
in the cities as the resolutions are processed (e.g. Danville, Orinda, and
Concord). Most, if not all, the Central County Cities, except for Walnut
Creek who withdrew from the service agreement this fiscal year, are
expected to process resolutions this month and will be fully implementing
the service agreement in 2010.
Central Contra Costa Sanitary District
Board Meeting
December 17, 2009
Board Member McGill
Item 6.d.1)
FUTURE MEETINGS AND CONFERENCES WITH PAID
EXPENSES AND /OR STIPEND
Mayors' Conference in Pleasant Hill, CA
January 7, 2010
MEETINGS AND CONFERENCES THAT EXPENSES
AND /OR STIPEND WAS PAID
Attended Mayors' Conference in Lafayette, CA
December 3, 2009
Attended Recycled Water Committee Meeting
December 15, 2009
Item 6.d.2 Announcements
Attended:
John F. Kennedy University Advisory Committee
Meeting
December 4, 2009
Concord Chamber of Commerce
Green Business Committee
December 8, 2009
Contra Costa Council band Use Task Force Meeting
December 9, 2009
County Supervisor Uilkema' s Breakfast
December 10, 2009
Industrial Safety Committee Meeting
December 10, 2009
Concord Chamber of Commerce Mixer
December 10, 2009
Senator Mark DeSaulnier' s Holiday Reception
December 16, 2009
Pleasant Hill Chamber of Commerce Holiday Mixer
December 16, 2009
n_
Will attend:
Contra Costa Council Board Meeting
December 18, 2009
6 , d - 2_)_
Central Contra Costa Sanitary District
December 17, 2009
TO: HONORABLE MEMBERS OF THE BOARD
FROM: MICHAEL R. MCGILL, BOARD PRESIDENT -ELECT
SUBJECT: 2010 BOARD COMMITTEE ASSIGNMENTS
I propose the following Board Committee assignments and other assignments listed below,
for 2010. The appointments will be effective January 1, 2010. As usual, if a Committee
Member is unable to attend a,meeting, I will appoint an Alternate when possible.
Standing Committees
Budget and Finance Committee
Chair: Nejedly
Member: Hockett
Capital Projects Committee
Chair: McGill
Member: Menesini
Household Hazardous Waste Committee
Chair: Menesini
Member: Lucey
Human Resources Committee
Chair: Lucey
Member: Menesini
Outreach Committee
Chair: McGill
Member: Menesini
Real Estate Committee
Chair: Lucey
Member: Nejedly
Recycled Water Committee
Chair: McGill
Member: Hockett
Representatives to Outside Agencies
California Special Districts Association
Contra Costa Chapter
Representative: McGill (evening meetings)
Alternate: Lucey (lunch meetings)
Friends of San Francisco Estuary
Representative: Menesini
Sanitation and Water Agencies of Contra Costa County
Representative: Hockett
Alternate: McGill
Board Liaison to Cities and County
Concord Nejedly
Contra Costa County
Alamo Hockett
Danville
San Ramon
Pleasant Hill McGill
Walnut Creek
Martinez Menesini
Lafayette
Pacheco
Moraga Lucey
Orinda
Other
In addition, President Pro Tern Hockett was elected by CASA to serve on the California
Association of Sanitary Agencies (CASA) Executive Board, which generally meets during
CASA conferences.