01/23/1984'1
CITY OF GRAND TERRACE
COUNCIL MINUTES
SPECIAL MEETING - JANUARY 23, 1984
A special meeting of the City Council of the City of Grand Terrace was called to
order in the City Hall Building No. 4, 22795 Barton Road, Grand Terrace,
California, on January 23, 1984, at 5:35 p.m.
PRESENT: Hugh J. Grant, Mayor
Jim Rigley, Mayor Pro Tempore
Tony Petta, Councilman
Roy W. Nix, Councilman
Barbara Pfennighausen, Councilwoman
Seth Armstead, City Manager
Ivan Hopkins, City Attorney
Joe Kicak, City Engineer
Myrna Erway, City Clerk
ABSENT: None
CIVIC CENTER CONSTRUCTION - EARTHWORK
City Manager Armstead advised that at the construction meeting of January 18,
Architect Larry Wolff presented a letter from Maveric Construction requesting
additional funds for the earthwork; requested this meeting due to the amount
requested.
Architect Larry Wolff advised that grading of the site began shortly before the
holidays; there was a rain delay between Christmas and New Years, then the grading
proceeded; he was advised January 5 that the contractor and subcontractor were
having difficulty obtaining compaction; discussed alternatives to alleviate the
problem with the soils engineer, who had a representative on site at all times.
As the problems became more evident, determined the job should betemporarily
stopped and the soils engineer should conduct additional testing to the original
tests conducted 14-15 months previously, in an effort to clarify the problem.
John Byerly, the soils engineer, stated initial soils tests were conducted October
22, 1982 on the Civic Center site, at which time test borings were placed at
different depths; four borings were extended from 14-18 feet below the ground
surface and samples were analyzed for various properties, including moisture; the
results indicated relatively dry, innocuous moisture contents that were
substantially below optimum moisture content; no hint of moisture problems were
seen. Provided recommendations for preparing the site to assure uniform
foundation support.
Prior to grading operations which began December 20, 1983, nearly twice the
normally expected amount of rainfall occurred in the fall and early winter; the
moisture content was not uniform; some areas were saturated and other areas near
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the surface were fairly dry; the contractor was having substantial difficulty
obtaining compaction; a discussion was held December 23 relative to the inability
to obtain compaction using static sheepsfoot roller equipment, which could be an
indication the moisture content was too dry; therefore, suggested using
alternative equipment, a vibratory sheepsfoot roller, to obtain proper compaction.
Over Christmas there was very heavy rainfall which inundated the site; the
contractor backfilled the area, but water got into the backfill and created
saturated conditions as much as 4-5% over the optimum. For two weeks the
contractor aerated, bladed and worked the soil, achieving marginal compaction
tests; at that time supplementary investigation tests were conducted which
revealed the present soil condition which consists of a very wet layer of soil at
depths 3-6 feet which is quite soft and totally incompatible with vibratory
compactor equipment. The wet soil layer acts like a sponge for that equipment,
minimizing the effectiveness of the compactor to achieve proper compaction;
recommended in a supplementary report that use of the vibratory compactor be
discontinued and that static sheepsfoot roller equipment be used immediately.
Consideration was given to mixing dry sand with the wet soil to reduce the
moisture content, thereby increasing the ability to get compaction rather than
waiting for the soil to dry; believes the compaction at the footing is still poor,
but believes it is adequate for assuring foundation support for the structure;
feels the way it is now, no further work is needed; feels mixing the sand will
allow the contractor to proceed immediately.
Architect Larry Wolff advised the Byerly firm was originally selected a year and a
half ago to provide a preliminary soils analysis for the fire station and the
civic center; his recommendations from the initial report were provided to him and
the City Engineer, and were incorporated into the earthwork section of the
specifications, with the stipulation that the contractor would be required to
provide all testing and pay all costs for testing by a qualified soils engineer;
Mr. Byerly has been retained by the contractor, but is also working for the City
and Mr. Wolff.
Councilman Petta questioned if the soil condition on this site would be the same
in other areas of the City, and whether there was a way to pre -determine this
condition could exist. Mr. Byerly stated soil conditions vary from site to site;
indicated that based on his report, there was no way to pre -determine the present
condition; there are methods available to evaluate the potential of rainfall
infiltration, but those kinds of tests are not normally done for foundation
studies; indicated the only way to determine the existing condition is from the
type of testing which was conducted two weeks ago.
Mayor Grant questioned if it wouldn't be logical to assume that any appreciable
rainfall would indicate that precautions should be taken in terms of further
testing as the process developed and the weeks went by, considering the size of
the structure to be built; questioned if there is no evidence anywhere in the City
of appreciable difference in the percentage of compaction based on the rainfall.
Mr. Byerly stated the rainfall after the grading began influenced the moisture
content present at this time; indicated has performed services for marry other
sites which have not been affected by the same rainfall; in 20 years of experience
has not encountered this type of condition.
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Mr. Wolff stated the
up to the architect;
were well within the
decision of whether additional soils testing is required is
felt the preliminary foundation investigation tests conducted
accepted practices.
City Attorney Hopkins requested clarification of Mr. Byerly's statements relative
to the compaction being adequate as it is now. Mr. Byerly stated one-third of the
work has passed the compaction test, with two-thirds yet to be accomplished. Mr.
Hopkins questioned if Mr. Byerly recommends mixing sand with the soil. Mr. Byerly
indicated that would be his recommendation, as well as other recommendations, each
of which will cost money; it will take a long time to get the moisture out of the
soil without mixing a dry import.
Attorney Hopkins questioned and Mr. Byerly responded that he did not feel that his
original report was misleading in any way to the contractor. Mr. Hopkins
questioned if Mr. Byerly felt the City should be responsible for the additional
cost; Mr. Byerly felt that is not his responsibility; felt his report reflected
the conditions which existed at that time, and that the present conditions were
not reasonably forseeable.
Councilwoman Pfennighausen referenced the last paragraph of a letter from Larry
Wolff indicating there appears to be a hard, dense layer below the moist layer,
keeping the moisture in the soil; questioned if the initial tests indicated this,
whether the heavy rainfall after testing would indicate the need for further
testing prior to grading, and whether the dense layer is not allowing the water to
percolate away from the area, which could cause continuing problems. Mr. Byerly
stated this condition is unique and was not anticipated; gave assurance that any
water accumulation after the structure is completed would not adversely affect the
foundation.
Councilman Rigley questioned the number of penetrations made and the amount of
area covered in the initial testing. Mr. Byerly stated four borings eight inches
in diameter were done, and the soil evaluated at those locations, which reflected
uniform conditions.
Attorney Hopkins questioned if the architect set forth the method of compaction in
the specifications - whether they specify how to achieve compaction or that it is
to be achieved. The architect stated the recommendations obtained from the
initial investigation to prepare the site were inserted in the earthwork
specifications which indicated the method of obtaining compaction; feels the
existing problem could not have been foreseen without additional testing which is
not normally done; had the additional testing been required and the resulting
recommendations included in the bid documents, the City would have paid a
corresponding amount to get the work completed.
Councilman Nix questioned how this project is unique from construction elsewhere
in the City. Mr. Byerly stated it is not uncommon to have a condition develop on
a site that is different than anticipated; to eliminate all possible risk would
require considerable expenditures; feels in most cases the tests conducted would
have defined all the problems and construction would have gone smoothly, as with
the fire station.
Larry Wolff stated he feels the contractor and subcontractor have complied with
the specifications, doesn't feel the problems encountered could have been
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discovered under normal or accepted practices of soils engineering, and doesn't
feel he has mislead the contractor. Doesn't wish to see the City expend the
additional funds, but also doesn't see how the contractor or subcontractor can be
expected to bear the additional costs, since all work has been performed as
requested, with no results.
Attorney Hopkins questioned if the method set forth in the specifications to
achieve compaction has been used throughout, or whether the method has been
changed on the soils engineer's advice. Mr. Wolff stated the specifications did
not specify the equipment to be used or procedures for its use. Councilman Nix
felt the specifications state a condition, the end result to be achieved, and some
indication of what is to be done to comply with the specifications, but do not
include specific details of how to do the job, or the type of equipment to be
used.
Attorney Hopkins questioned and Mr. Byerly confirmed he was hired by the City to
perform the soils investigation which was used in the bid documents, and has now
been retained by the general contractor for the construction phase of the
project. Attorney Hopkins questioned if Mr. Byerly's advice to switch equipment
was in the capacity of employment with the general contractor; Mr. Byerly
responded affirmatively, as a consultant.
Roy Taylor, Maveric Construction, the general contractor, stated he feels the
testing and report were within reason and does not feel the City would have paid
for the type of testing needed to indicate the present situation prior to being
aware there could be a problem. Stated there is a publication called the "Green
Book" which has been adopted by San Bernardino and Riverside Counties, by the City
of San Bernardino, and is used by most large counties or cities. This book makes
provisions for unforeseen work and the municipalities in which it occurs are
liable for that cost; indicated the City has done everything that should be done,
but in this case it didn't work out; doesn't see where anyone is to blame.
Councilman Nix stated the City must question if this condition could not have been
foreseen; advice was given to plan for a 2% contingency; this will expend the
contingency for the entire project, which indicates there is a problem either with
the planning or the input received.
City Manager Armstead questioned whether the estimated cost of $27,302 will ensure
the proper compaction for the footings. Mr. Wolff stated the estimated costs
listed in his letter of January 23, 1984 do not reflect the amount being
requested; the contractor submitted a formal price quotation of $21,402.57, plus
an additional amount of $9,465.36 to import and mix the soil in a letter dated
January 19; feels both should be done to achieve a reasonable level of success to
finish the grading; indicated no guarantee is attached to the price quotation
received. John Byerly felt the importation of dry sandy soil would facilitate the
job greatly, and that the price proposed for the importation is prudent.
The architect questioned and the subcontractor responded he felt this should take
care of the problem, but would give no guarantee. The contractor stated if this
isn't done now, and there is more rainfall, it will create serious problems and
cost excessively more than the present quotation; stated the soil in its present
condition is not compactible; if soil is not imported and the job is delayed 2-3
months, the City would receive an exorbitant bill. The grading should have been
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completed in 10 days, with footings being poured now; if the soil is imported,
compaction should take another 7-10 days.
The City Engineer questioned the borrow site and the suitability of the import;
the borrow site is the river on Waterman; Mr. Byerly felt the import would be
suitable.
Recess was called at 7:31 and reconvened at 7:45 p.m., with all members present.
Councilman Rigley recommended the City pay 50% of the involved expenses. The
contractor disagreed, feeling it is not his responsibility and that each day on
this project not producing costs him $500 per day in office and business overhead,
which hasn't been charged to the City.
Councilman Nix disagreed with negotiating the costs; is not convinced the City is
liable; feels a licensed bidder who knows the business, the area and construction
should be bidding to do a job; had an act of God occurred, could agree with the
unforseeable circumstances; has heard nothing to convince him this situation
should not have been forseeable by people in this business and an issue which the
contractor accepts and knows is part of his responsibility when he bids a job.
Requested a review and interpretation of the contract by the City Attorney
relative to the contractor's responsibilities.
Attorney Hopkins disagreed that you cannot contract for and receive guaranteed
results; compaction is one of the more common items for which you contract and get
results; manly contracts are guaranteed; otherwise there would be no reason to bid
on time and materials. The contractor based his judgment, in bidding the project,
on the data supplied by the soils engineer; if that was inaccurate, due to a
change of conditions, not due to his inaccuracy, but to changing conditions, the
City should have been made aware of that, and possibly should not have to pay the
price for the changing conditions; that is the judgment someone has to make; is
not convinced the City is legally required to pay any additional amount, and isn't
convinced the contractor isn't legally obligated to perform.
Questioned the architect relative to setting forth a method, because if the City
set forth a method and did not ask for results, it would be asking him to do a job
as the City wanted the job done, and in that case would be responsible for the
total cost. Advised the contract documents set forth a method for resolving
disputes; recommended arbitrating and letting a third party decide the issue if it
cannot be resolved at this time.
The contractor felt he should seek legal advice; stated the specifications
indicate that if the owner and contractor reach an impasse, the architect will
make a decision; stated if the City does not make a decision at this meeting, and
any rainfall or element occurs to jeopardize the work accomplished to date,
believes the City will be liable.
Councilman Petta questioned the price quotation, feeling it is exorbitant; the
contractor provided a listing of equipment rental rates and stated the price
quotations are 40% less than those recommended by the contractors' association;
has requested the same rates listed in the bid; would have increased the prices
15-20% if this were a bid situation; guaranteed 1500 yards of soil will be brought
in, but will not guarantee more will not be required for compaction of the
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remainder of the site. Councilman Petta questioned why 90% compaction is required
for the pavement areas. The soils engineer advised a firm sub -grade must be
provided so the pavement won't yield from fatigue and will have a normal life of
20 years. The City Engineer stated the City and the State require 95% compaction
in the last 6 inches and 90% in the last two feet.
Councilman Nix felt the situation of the soils engineer being retained by both the
City and the contractor should not have been allowed; expert advice is needed
regarding this situation; this individual is not in a very good position to state
the City didn't do its job or that something was improperly or inadequately done.
Mr. Byerly stated the key issue is who is liable for the condition which exists,
not who is responsible, feeling no one is at fault for the existing condition.
Attorney Hopkins concurred the issue is who has legal responsibility to correct
the condition; the question is was the job bid for a finished product, or was the
bid based on some conditions which have changed, and because of those changed
conditions, is that the responsibility of the City. Suggested considering the
option of the architect making a decision, with either party having the right to
appeal the decision to arbitration, as specified in the contract.
Architect Larry Wolff recommended proceeding with the general contractor's request
for additional compensation, based upon the soil engineer's proposed
recommendation in finalizing the earthwork and compaction; feels the work which
has been performed should be compensated; based upon quotations and estimates
given, compared to some of the trade references, feels there are no great
disparities in cost, and sees no reason not to proceed; feels what is best for the
entire project is what is best for the community; therefore, recommended
proceeding with the proposed change order.
City Attorney Hopkins stated Council has 30 days to appeal the architect's
decision to an arbitrator, as specified in the contract; recommended that Council
not waive its legal rights if the architect's decision is accepted.
Motion by Councilman Rigley, Second by Councilman Petta, to accept the Architect's
decision, reserving the right to determine at any time in the future the
responsibility, if any further work is required.
Attorney Hopkins advised if this Motion carries, Council will have waived the
right of appeal; stated the Motion is to accept the architect's decision to
approve the change order, with the caveat that the City is not accepting
responsibility for any future occurrences.
Councilman Nix stated the architect has made a decision and the job will proceed;
Council has 30 days to decide whether or not to appeal; if the City appeals and
loses, it pays - if it appeals and wins, it doesn't pay; however, the Motion, as
made, closes the door on that option. Following clarification, the Motion failed
2-3, with Councilmen Rigley and Petta voting AYE.
Attorney Hopkins clarified Council rejected the Motion to waive the 30-day right
to appeal; did not indicate whether or not it would appeal; the City cannot cancel n
the architect's decision to honor the change order and for the City to pay, but it I I
has 30 days to appeal that decision. I I
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The contractor felt he needs to consult his attorney; will resume work on the
project as soon as possible, feeling otherwise if he leaves the grounds
unattended, the arbitrator could determine that the architect told him to proceed,
at which time it becomes his responsibility.
ADJOURN - The Special Meeting adjourned at 8:46 p.m. The next regular meeting
wi7T-Fe held January 26, 1984 at 5:30 p.m.
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Respectfully submitted,
ityCe c
APPROVED:
May r