Title
Dept./ Agency: Economic and Housing Development
Action: ( ) Ratifying (X) Authorizing (X) Amending
Type of Service: Change Order/Amend Contract
Purpose: To complete unforeseen field conditions for construction of Riverfront Park Expansion - Phase C, increase contract amount, and extend contract completion date.
Entity Name: Tomco Construction, Inc.
Entity Address: 22 Howard Boulevard, Suite 204, Mount Arlington, New Jersey 07856
Contract Amount: Not to exceed $9,906,039.37
Funding Source: 2016 Budget/Department of Economic and Housing Development
Contract Period: Contract completion date extended from November 16, 2018 to December 31, 2020
Contract Basis: (X) Bid ( ) State Vendor ( ) Prof. Ser. ( ) EUS
( ) Fair & Open ( ) No Reportable Contributions ( ) RFP ( ) RFQ
( ) Private Sale ( ) Grant ( ) Sub-recipient ( ) N/A
Additional Information:
Original Resolution 7R2-a(S/AS) was adopted on September 25, 2018 for a contract amount not to exceed $8,154,999.00.
Change Order #1 authorized by Resolution 7R2-f(S) adopted on July 23, 2019 increased the contract amount by $138,838.24, for a total contract amount not to exceed $8,293,382.24 and extended the contract completion date to June 19, 2020.
Change Order #2 increased the contract amount by $1,236,116.17.
Change Order #3 increased the contract amount by $327,040.96.
Change Order #4 increased the contract amount by $49,500.00.
Change Orders #2, 3 and 4 will result in an amended contract amount not to exceed $9,906,039.37 (a total increase of $1,612,657.13) and will extend the contract completion date to December 31, 2020.
body
WHEREAS, on September 25, 2018, the Municipal Council adopted Resolution 7R2-a(S/AS) authorizing the Deputy Mayor/Director of the Department of Economic and Housing Development, to accept the bid proposal from and enter into and execute a contract with Tomco Construction, Inc., 22 Howard Boulevard, Suite 204, Mount Arlington, New Jersey 07856, for constructing Riverfront Park Expansion - Phase C (the “Park”) for the total bid amount of $8,154,999.00 (the “Contract”); and
WHEREAS, on July 23, 2019 the Municipal Council adopted Resolution 7R2-f(S) authorizing the Deputy Mayor/Director of the Department of Economic and Housing Development, to execute Change Order/Contract Amendment #1 to amend and increase the contract amount not to exceed $8,293,382.24 (an increase of $138,383.24 to the total contract amount) and to extend the contract period to June 19, 2020 due to unforeseen conditions at the time of the design, namely: (a) Request by Army Corp of Engineers to install a 6” underdrain pipe system; (b) Request by adjacent property owner (“Matrix”) for stone spread across staging area; and (c) an additional request by Matrix for additional stone across staging area; and
WHEREAS, an engineering design firm was hired to produce renderings and specifications for the site, civil, engineering and plumbing design plan for the Riverfront Park in advance of the issuance of the bid solicitation for construction contractors to build the Park; and
WHEREAS, all of the respondents to the bid solicitation for construction of the Park, including Tomco relied upon the design plan in placing their bids; and
WHEREAS, Tomco relied upon the design plan in applying for permits, ordering construction materials, and in commencing installation of same; and
WHEREAS, the design plan produced by the engineering design firm contained substantial errors that were discovered after Tomco began working in accordance with the plan specifications; and
WHEREAS, due to conditions unforeseen at the time that Tomco bid on the construction contract and caused by the design defects, the following Change Order is detailed under Change Order #2 (or “2r1”): a) irrigation plan changes for installation of additional kiosk locations; b) miscellaneous landscaping changes to plan to conform with site conditions; c) installation of safety railings; d) amendments to electrical conduits for reconfigured light fixtures; e) changes to type of trees to be planted; f) soil disposal as directed by City of Newark; g) GRS wall changes; h) cost of engaging third party engineering inspectors in place of the City’s Engineering Department; i) cost associated with the licensing agreement for the use of the adjacent land owned by Matrix Inc., as construction staging area; and
WHEREAS, Change Order #2 (or “2r1”) equals $1,236,116.17 as indicated on Exhibit A attached to Contract Amendment #2; and
WHEREAS, due to conditions unforeseen at the time that Tomco bid on the construction contract and caused by the design defects, the following Change Order is detailed under Change Order #3 - a) total reconfiguration of the lighting plans in Phase C spurred by information from PSE&G that the lighting plan designs do not conform to the electrical service that PSE&G can deliver to the Park - specifically, the design plans contemplated electrical service of 480/277V whereas PSE&G can only provide electric service of 208/120V; and
WHEREAS, Change Order #3 equals $327,040.96 as indicated on Exhibit B attached to Contract Amendment #2; and
WHEREAS, in the early hours of August 17, 2020, a vehicle turning from Center Street on to McCarter Highway lost control and drove through the temporary fence installed around the Park and caused damage to various installations including the slab for the generator/hotbox, the decorative fence around the generator/hotbox, irrigation lines to water the plants, the landscaped plants and an engineered GRS rock wall, see Accident Report attached hereto; and
WHEREAS, Change Order #4 details the cost of repairing the damages caused by the vehicle, which equals $49,500.00 as detailed on Exhibit C attached to Contract Amendment #2; and
WHEREAS, the City of Newark’s Construction Manager, Lehrer Cumming, extensively reviewed the requested Change Orders and provided the City with three letters that set forth that Lehrer Cumming concurred with the Change Orders and in their opinion believed them to be justified as they were all unforeseen and were not material and were fully in compliance with N.J.S.A. 40A:11-16.6 and N.J.A.C. 5:30-11 and that the nature or scope of the project and the extra work cannot and could not be reasonably effectuated by separate bid contracts,81 without unduly disrupting the basic work; and
WHEREAS, the Deputy Mayor/Director of the Department of Economic and Housing Development, after consultation with the Department of Engineering and in reliance upon the recommendations by City of Newark’s Construction Manager, Lehrer Cumming, certifies that the substance and the procedure to approve the Change Order is in full compliance with N.J.S.A. 40A:11-16.6 and N.J.A.C. 5:30-11 and does not constitute a material expansion in the size, nature or scope of the Project and the extra work cannot and could not be reasonably effectuated by a separately bid contract, without unduly disrupting the basic work; and
WHEREAS, the Deputy Mayor/Director of the Department of Economic and Housing Development, desires to amend the contract to increase the amount not to exceed of $8,293,382.24 to $9,906,039.37 (an increase of $1,612,657.13 to the total amount of the contract); and
WHEREAS, the Deputy Mayor/Director of the Department of Economic and Housing Development, wishes to extend the contractual period, specifically the due dates for “Substantial Completion” and “Final Completion set forth in Section 2.1 of the contract, to allow ample time for the successful completion of the Project.
NOW, THEREFORE, BE IT RESOLVED BY THE MUNICIPAL COUNCIL OF THE CITY OF NEWARK, NEW JERSEY, THAT:
1. The Mayor and/or his designee, the Deputy Mayor/Director of the Department of Economic and Housing Development, are hereby authorized on behalf of the City of Newark to execute Change Order/Contract Amendment #2 which details Change Orders #2 (or “2r1”), 3, and 4, in the form attached hereto, to amend the Contract to: (1) increase the contract amount not to exceed of $9,906,039.37 (an increase of $1,612,657.13 to the total amount of the contract); (2) to extend the contract completion date from June 19, 2020 through December 31, 2020; and (3) to extend the final completion date of the contract to on or before January 31, 2021.
2. All other terms and conditions of the contract, except as otherwise amended above, shall remain in force and effect until the contract is completed.
3. Attached hereto is a Certification of Funds from the Director of the Department of Finance, which states: (1) that there are sufficient funds in the amount of $1,612,657.13 for the purpose set forth herein above; and (2) that the line appropriation which shall be charged is as follows:
Business Unit Dept. Div./Proj. Activity Account Budget Ref.
NW045 16G 16C00 A 94710 B2016
4. A fully executed copy of this Change Order/Contract Amendment #2 and the Certification of Funds shall be filed in the Office of the City Clerk by the Deputy Mayor/Director of the Department of Economic and Housing Development.
5. There shall be no advance payments against this contract pursuant to N.J.S.A. 40A:5-16.
6. There shall be no further amendments or changes to this contract without the approval of the Municipal Council.
7. The public bidding process under which this contract was awarded pursuant to the Local Public Contracts Law, N.J.S.A. 40A: 11-1, et seq.; which complied with the requirements of the New Jersey Local Unit Pay-to-Play, N.J.S.A. 19:44A-20.5 et seq.; and the processing of the Change Order is in compliance with N.J.A.C. 5:30-1.
STATEMENT
This resolution authorizes the Mayor and/or his designee, the Deputy Mayor/Director of the Department of Economic and Housing Development, to enter into and execute a Change Order/Contract Amendment #2 to amend the contract to: (1) increase the contract amount not to exceed of $9,906,039.37 (an increase of $1,612,657.13 to the total contract amount); (2) to extend the contract completion date from June 19, 2020 through December 31, 2020; and (3) to extend the final completion date of the contract to on or before January 31, 2021.