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Academic Project:

Agreements

Task Order Construction Agreements

For the Task Order Construction Agreement (TOCA) project delivery method, the Agreement types are described in the following:

Campus will solicit proposals for the TOCA Master Enabling Agreement (MEA), under which Campus will issue a task order for preconstruction services, and then a Construction Agreement for the construction phase. Campus specifies the delivery method, either CMAR or CDB, to be used for the project in the task order and construction agreement. If Campus specifies in the task order that the TOCA project delivery is CDB, Campus issues a Phase 1 task order to the selected DB, for design and preconstruction services.

Upon satisfactory completion of Phase 1 services, Campus will issue the TO-CA Phase 2 construction phase CDB or CMR construction agreement. The agreement fees may be based on and Hourly Rate method (HR), or Percentage (PCT) method, depending on the RFP choice.

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Owners Construction Phase Service Agreements

The Trustees Construction Phase Service Agreements may include the following: project manager; inspector of record, soils testing and materials testing laboratories; commissioning agent; MEP peer review services for CDB submittal reviews; hazardous materials testing; LEED certification documentation; and other project specific services. These construction phase services are provided under a service agreement between the Trustees and the service provider. Labor Code section 1720 requires payment of prevailing wage rates for contracted inspection, land surveying and related activities on public works construction projects. Public works registration with the DIR may be required.

Construction Administrator shall require the Project Architect to submit a list of testing that will be required with an estimate of the number and/or frequency of each type. The Project Architect is advised that requests for type and number of tests should be made in accordance with accepted code requirements. In order to have service agreements in place by start of construction, the Construction Administrator shall solicit and obtain proposals during the contractor's trade bid period, from which interested firms will submit proposals or letters. Using the Project Architect's estimate of tests required, the Construction Administrator then reviews the anticipated testing costs from the proposals submitted.

Trustees' policies in awarding a testing agreement are:

  1. to utilize at least three proposals from firms in the project area, 2) to keep testing costs at a level with current industry practice, and
  2. to distribute work among qualified firms as widely as practical.
  3. Contract on-site project management and inspection services separately from testing services whenever economically feasible; seek firms complying with DVBE when possible.

Selection of a testing lab is also based on:

  1. the qualifications of the lab and its personnel to perform the anticipated tests,
  2. estimated costs, and
  3. previous performance.

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Amendments to Service Agreements

Amendments or changes to service agreements are accomplished through the use of the same service agreement document, by identifying the amendment number at the top of the first page of the agreement. Typical reasons to issue an amendment are to establish new unit costs, make substantial changes to original quantities or scope, increase/decrease the contract amount, or adjust the term of the contract. Amendments should document actual services performed and also new services to be performed, so that encumbered funds are not expended against unauthorized services. Once the project is complete, and services for an agreement are no longer required, issue an amendment to credit the agreement, and disencumber the balance of the funds in the agreement.

Service Agreement Amendment Proposal Form: is used to identify the proposed change, the necessity, and will certify that funding is available. The originator of the request will sign the Recommendation for Approval, as will the Facility Planner and the Contracts Administrator, who will review the request to ensure that the change is within the following guidelines:

  1. it is a nominal extension, 25% or less, to the term of the agreement;
  2. it is a nominal increase, 25% or less, to the amount of the agreement; or 3) other minor changes. Changes not within these guidelines must be submitted with an additional written justification acceptable to the appropriate approving authority. All changes to the language of the Agreement, e.g. hold harmless, insurance, etc. are to be reviewed by the Office of General Counsel.

Amendment Approvals: There should be 4 levels of approval for the amendment proposal and the amendment, as is done with Contracts:

  1. the Construction Administrator as the requesting person;
  2. his or her supervisor, after reviewing the documents, and any other as required by the Campus Management Plan;
  3. the fiscal administrator:
  4. General Counsel

Amendment: two original signature copies are required, one for service provider and the other for Construction Administrator files. Once returned by service provider with its signature, route agreement for signature by fiscal administrator and the appropriate approving authority.

Resources:

  • SUAM section 9786.03
  • CM Procedures Manual, section 13
  • PCC sections 1070710820 (OGC approval may be required-determination made by approving authority)

Conflict of Interest

General Prohibition Against Conflicts of Interest: No public official at any level of state or local government shall make, participate in making or in any way attempt to use her/his official position to influence a governmental decision in which s/he knows or has reason to know s/he has a financial interest. "Public officials" include state employees and consultants.

A public official has a financial interest in a decision if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family or on any of the following:

  1. any business entity in which the public official has a direct or indirect interest worth $2,000 or more;
  2. any real property in which the public official has a direct or indirect interest worth $2,000 or more;
  3. any source of income, except gifts or loans by a commercial lending institution made in the regular course of business on terms available to the public without regard to official status, aggregating $500 or more in value provided or promised to, received by, the public official within 12 mos. prior to the time when the decision is made;
  4. any business entity in which the public official is a director, officer, partner, trustee, employee, or holds any position of management;
  5. any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating $460 or more in value provided to, received by, or promised to the public official within 12 mos. prior to the time when the decision is made.

For purposes of this section, indirect investment or interest means any investment or interest owned by the spouse or dependent child of a public official, by an agent on behalf of a public official, or by a business entity or trust in which the official, the official's agents, spouse, and dependent children own directly, indirectly, or beneficially a 10% interest or greater (Gov. Code section 87103).

CSU Conflict of Interest Code: Employees designated in the CSU Conflict of Interest Code must disqualify themselves from making or participating in making a decision that foreseeably would have a material effect on any personal financial interest (Gov. Code section 87300 et seq.; California Code of Regulations, Title 2 section 18730). Consultation with Office of General Counsel is advised.

The following six sections are detailed at length in the Law of Design & Construction Training Manual-December, 2017, Section XX:

  1. Prohibition on Honorarium and Gifts (Gov. Code section 89502);
  2. Prohibition Against Personal Financial Interests in CSU Contracts (Gov. Code section 1090 et seq.);
  3. Restrictions on Consulting Services Contractors (PCC section 10830);
  4. Restrictions on CSU Employees Contracting with the CSU (PCC section 10831 et seq.);
  5. No Gift of Public Funds (California Constitution, Article 16, Section 6 [The state must receive commensurate value whoever its resources are used, including time, equipment, materials, supplies and facilities. Also prohibited is the use of state resources for nonstate purposes, except uses that are incidental or minimal];
  6. Misuse of Nonpublic Information for Personal Gain (Ed. Code section 89006).

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Forms & Templates: