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Item 4.1 - Award of Contract to EC Constructors, Inc. for the Mickey Cafagna Community Center; Bid 20-004City of Poway COUNCIL AGENDA REPORT DATE: October 15, 2019 TO: Honorable Mayor and Members of the City Council FROM: CONTACT: SUBJECT: Summary: Robert J. Manis, Director of Development Services Tom Frank, City Engineer (858) 668-4603 or tfrank@poway.org Aaron Beanan, Director of Finance 41, (858) 668-4411 or abeanan@poway.org Brenda Sylvia, Director of Community Service (858) 668-4585 or bsylvia©poway.org Award of Contract to EC Constructors, Inc. for the Mickey Cafagna Community Center Project; Bid No. 20-004 This item will award a contract for the construction of the Mickey Cafagna Community Center Project to EC Constructors, Inc. Recommended Action: It is recommended that the City Council award the contract to EC Constructors, Inc. for the Mickey Cafagna Community Center Project; Bid No. 20-004 for either 1) the base bid (Hybrid floorplan) in the amount of $8,575,595 or 2) the base bid plus additive alternate 1 (Hybrid Plus floorplan), for a total bid amount of $9,859,559. Discussion: On February 19, 2019, the City Council appropriated funds to provide sufficient funding for the Mickey Cafagna Community Center Project based upon the construction cost estimates for a new 18,082 square -foot community center (referred to as the Hybrid floorplan as shown in Attachment A) and directed staff to include the larger 22,587 square -foot building (referred to as the Hybrid Plus floorplan as shown in Attachment B) as an additive option in the bid documents. The Hybrid floorplan is designed so that it could be expanded to the Hybrid Plus floorplan in the future. The Mickey Cafagna Community Center will be a shared use, multi -generational facility that will serve the community for many years to come. The building's more efficient, flexible design will allow for diverse programming and use throughout the day, by all ages and all segments of the community. The new community center will continue to house City programming and the Poway Senior Center, though the design of the building is geared toward flexible shared space, as opposed to space dedicated exclusively to specific programming. A notice inviting bids for the project was initially advertised on June 6 and 13, 2019 and one bid was received at the bid opening on July 29, 2019. The bid received was $8,590,790 for the Hybrid floorplan and $9,743,984 for the Hybrid Plus floorplan. While the bid was below the engineer's estimate, it is prudent to obtain more than one bid on a project of this magnitude to ensure a competitive low bid. For this reason, the City Council rejected the bid and directed staff to re - advertise the project. 1 of 25 October 15, 2019, Item # 4.1 Several contractors who planned to submit on the earlier bid indicated that they did not submit due to a self -performance provision in the bid documents. This provision is commonly used in bid documents for cities in Southern California and requires the general contractor to perform a specified percentage of the contract work through his/her company. This requirement proved to be difficult to meet with this type of construction project. When the project was re -advertised, the bid documents were revised to remove the self -performance provision. A new notice inviting bids was duly advertised on August 29 and September 5, 2019. Ten general contractors attended a mandatory pre-bid meeting on September 10, 2019. Three addendums were issued during the bidding process which addressed questions received from prospective bidders and provided additional specifications. A few of the more significant issues addressed in the addendums included lowering the subcontractor's insurance liability limits to $1,000,000 per occurrence and $2,000,000 aggregate, streamlining subcontractor information required in the bid per California Public Contract Code section 4104, and providing specifications for resilient flooring and accessories. The engineer's estimate is $10,176,527 for the Hybrid floorplan and $11,599,311 for the Hybrid Plus floorplan. The low bid was specified to be based on the base bid. Bids were opened on September 19, 2019. The following eight bids were received: Company Base Bid Additive Alternate 1 Total Bid Amount EC Constructors, Inc. $8,575,595 $1,283,964 $9,859,559 Conan Construction, Inc. $8,602,340 $1,387,000 $9,989,340 Prava Construction $8,649,159 $1,228,162 $9,877,321 Southwest Construction $8,703,129 $1,479,196 $10,182,325 Barnhart -Reese $8,826,847 $1,063,515 $9,890,362 Peter Vander Werff Constr., Inc. $9,100,000 $1,100,000 $10,200,000 Cannon Constructors $9,502,196 $1,455,000 $10,957,196 Fast -Track Construction $12,492,000 $1,600,000 $14,092,000 On September 20, 2019, a letter of protest was submitted by the second lowest bidder, Conan Construction, Inc., regarding the City's determination of the lowest bidder (Attachment C). After review of the protest by the City Attorney, the City has found no reason to find that EC Constructors, Inc.'s (ECC) bid is nonresponsive as outlined in the response letter from the City (Attachment D). The lowest bidder, ECC, is recommended for the award of contract. The project's remaining budget is $11,867,596 and is sufficient to fund either the award of the Hybrid or the Hybrid Plus floorplans. In addition to the construction contract, additional construction costs include furniture, fixtures, equipment, utility connection fees, construction management, special inspections, and a 10% construction contingency. This brings the totals to $10,356,155 for the Hybrid floorplan and $11,768,515 for the Hybrid Plus floorplan. Including all of these items, the current project budget shows an estimated surplus of $1,511,441 if the City Council awards the Hybrid floorplan and $99,081 if the City Council awards the Hybrid Plus floorplan. These unallocated funds are in addition to the 10% construction contingencies included in the total costs. This is illustrated in the table below. The demolition and construction of City building facilities are challenging projects and the total project cost and remaining balance will only be determined when the project construction is complete, and all associated expenditures are logged. 2 of 25 October 15, 2019, Item # 4.1 The floorplan chosen will have an effect on operations, operating costs and potential revenue. The annual net operating cost (expenditures minus revenue) of the existing facility is approximately $599,000, versus $598,000 for the Hybrid floorplan and $567,000 for the Hybrid Plus floorplan. The future revenue estimates for the Hybrid and Hybrid Plus floorplans are based upon current fees. Prior to the completion of the new community center, staff anticipates presenting revised fees to the City Council that will incorporate a higher level of cost recovery. The operating costs of the Hybrid Plus floorplan are projected to be slightly less than the Hybrid floorplan because with the larger facility there is greater opportunity to generate revenue from programming and facility rentals. There are no additional staff costs associated with selecting either floorplan. From an operations perspective if the Hybrid floorplan were to be selected, some existing City programming and revenue would be compromised to accommodate the Senior Center's high -impact programs, including bingo. The Hybrid Plus floorplan would allow both Senior Center and City programming to be maintained and expanded. As the City Council contemplates which floorplan to select and the potential surplus associated with each option, staff thought it was prudent to include information about the issues on the budget horizon that were discussed during the presentation of the FY 2019-20 budget on June 18, 2019. Many of the projects and issues described during the City Council meeting remain unresolved and have the potential to significantly impact the General Fund. Notable projects include the completion of the Espola Road Safety Improvement Project, the City's share of costs in addressing the Los Penasquitos Watershed Management Area Water Quality Improvement Plan and Comprehensive Load Reduction Plan and potential future expenditures related to the Landscape Maintenance Districts (LMDs). The City is also still in the process of appealing a recent decision by the State to redistribute sales tax dollars received in 2005 in a manner that would adversely impact the City. Because the issue involves a single taxpayer, most details of this are confidential. While it is possible the City's undesignated fund balance could fund some of these items, the total current estimated costs of these items exceed the current projections for undesignated fund balance. In addition to these large pending projects costs, Poway, like all California cities, faces rising pension costs for the foreseeable future that will continue to put more and more pressure on the City's operating budget. At the September 18, 2018 City Council workshop on the California Public Employees' Retirement System (PERS) Actuarial Analysis, the Council expressed an interest in identifying funds to both pay down some of the City's unfunded pension liability, as well as potentially establish an IRS Section 115 trust to help mitigate the impact of rising pension costs on the operating budget. Based on current projects and issues on the horizon, staff has not yet identified funds to pursue either of these options. Aside from the Poway specific projects and issues identified above, the City is anticipating more challenging financial conditions as more than 70% of economists surveyed by the National Association for Business Economics in August expect an end to the longest economic expansion in American history before the end of 2021. These are all factors the City Council may wish to consider in its decision-making process. A copy of the Construction Contract is included as Attachment E. The Contract will be executed after the City Council selects the floorplan and awards the contract as recommended in this report. 3 of 25 October 15, 2019, Item # 4.1 Hybrid Floorplan Hybrid Plus Floorplan Bid $8,575,595 $9,859,559 Additional Construction Expenditures $871,500 $871,500 Construction Contingency $909,060 $1,037,456 TOTAL $10,356,155 $11,768,515 Remaining Budget $1,511,441 $99,081 The floorplan chosen will have an effect on operations, operating costs and potential revenue. The annual net operating cost (expenditures minus revenue) of the existing facility is approximately $599,000, versus $598,000 for the Hybrid floorplan and $567,000 for the Hybrid Plus floorplan. The future revenue estimates for the Hybrid and Hybrid Plus floorplans are based upon current fees. Prior to the completion of the new community center, staff anticipates presenting revised fees to the City Council that will incorporate a higher level of cost recovery. The operating costs of the Hybrid Plus floorplan are projected to be slightly less than the Hybrid floorplan because with the larger facility there is greater opportunity to generate revenue from programming and facility rentals. There are no additional staff costs associated with selecting either floorplan. From an operations perspective if the Hybrid floorplan were to be selected, some existing City programming and revenue would be compromised to accommodate the Senior Center's high -impact programs, including bingo. The Hybrid Plus floorplan would allow both Senior Center and City programming to be maintained and expanded. As the City Council contemplates which floorplan to select and the potential surplus associated with each option, staff thought it was prudent to include information about the issues on the budget horizon that were discussed during the presentation of the FY 2019-20 budget on June 18, 2019. Many of the projects and issues described during the City Council meeting remain unresolved and have the potential to significantly impact the General Fund. Notable projects include the completion of the Espola Road Safety Improvement Project, the City's share of costs in addressing the Los Penasquitos Watershed Management Area Water Quality Improvement Plan and Comprehensive Load Reduction Plan and potential future expenditures related to the Landscape Maintenance Districts (LMDs). The City is also still in the process of appealing a recent decision by the State to redistribute sales tax dollars received in 2005 in a manner that would adversely impact the City. Because the issue involves a single taxpayer, most details of this are confidential. While it is possible the City's undesignated fund balance could fund some of these items, the total current estimated costs of these items exceed the current projections for undesignated fund balance. In addition to these large pending projects costs, Poway, like all California cities, faces rising pension costs for the foreseeable future that will continue to put more and more pressure on the City's operating budget. At the September 18, 2018 City Council workshop on the California Public Employees' Retirement System (PERS) Actuarial Analysis, the Council expressed an interest in identifying funds to both pay down some of the City's unfunded pension liability, as well as potentially establish an IRS Section 115 trust to help mitigate the impact of rising pension costs on the operating budget. Based on current projects and issues on the horizon, staff has not yet identified funds to pursue either of these options. Aside from the Poway specific projects and issues identified above, the City is anticipating more challenging financial conditions as more than 70% of economists surveyed by the National Association for Business Economics in August expect an end to the longest economic expansion in American history before the end of 2021. These are all factors the City Council may wish to consider in its decision-making process. A copy of the Construction Contract is included as Attachment E. The Contract will be executed after the City Council selects the floorplan and awards the contract as recommended in this report. 3 of 25 October 15, 2019, Item # 4.1 Environmental Review: On May 15, 2018, the City Council determined that this project is categorically exempt from the California Environmental Quality Act (CEQA) as a Class 2 Categorical Exemption, pursuant to Section 15302 of the CEQA Guidelines, in that the project involves replacement of an existing building with a smaller building in the same location that will have substantially the same purpose and capacity of the building that will be replaced. A Notice of Exemption was filed with the County Recorder on May 16, 2018. Fiscal Impact: Funding in the amount of $11,867,596 is available in the CIP Project Account BDG0001 and is sufficient to award either the base bid (Hybrid floorplan) or the base bid plus the additive alternate 1 (Hybrid Plus floorplan). Any funds remaining upon completion of the project will be available to reprogram towards another need. Public Notification: None. Attachments: A. Hybrid Floorplan B. Hybrid Plus Floorplan C. Conan Construction, Inc., Letter of Protest (September 20, 2019) D. City Response Letter (September 26, 2019) E. Construction Contract Reviewed/Approved By: Reviewed By: Wendy 9 aserman Alan Fenstermacher Assistant City Manager City Attorney Approved By: Chr Ha = e City Manager 4 of 25 October 15, 2019, Item # 4.1 gU CONSTRUCTION NOTES 321111 „3ila 11Ho21vNr zz s ?.8 WALL LEGEND 4 4 4 Q 909 �= Q I I j w rn I I j I i L,_._._._._._ 0— L L L 1{r L I SFW F 0— i rl srl =811"A�i� i I 1 I ; I i i j ! ii j i ; i j ; ; I i j ; ; i i i ; I i i ; ; i y I j i ! I i ; I i j i ; i i i i ; i i I i ; I i ; i j j ; I ii i i ; i is i i ; i i;. o- I ; i— — — — -i-- -.1-- — +- L+- I b b 0b b'0 �f 25 A I t A(. I IMLN t o October 15, 2019,.Item # 4 1 1.970.42•1:4121•4•11..40.4 ?21,(14.3,13.1111 JMONV11�II11��lr CONSTRUCTION NOTES a WALL LEGEND <�O2 000 00 Q 4 4 91Q a ---i i I I i' I0- i1 !1 t I t Iii I I .1 !, i1 I I j1 r6 le I j I I i1 b db 6'6 b g 2 of 25 ATTACHMENT B October 15, 2019, - Item # 4 1 CONAN `CONSTRUCTION Via Email to Hossein Azar (hazar(poway.org) 9/20/19 City of Poway 13325 Civic Center Dr Poway, CA 92064 Re: Bid Protest- Mickey Cafagna Community Center Bid Dear Mr. Azar, This letter serves as Conan Construction Inc.'s ("Conan") bid protest as to E C Contructors Inc. , the respective low bidder for the above -referenced bid. Conan protests the bid as nonresponsive and directs the City of Poway to the details set forth below. Under California Public Contract Code, Division 2. General Provisions, Part 1. Chapter 4. Subsection 4106, a prime contractor is responsible to list all subcontractors for the portion of work to be performed under said contract in excess of one-half of 1 percent of the prime contractor's total base bid. E C Contractors Inc. has failed to provide listing for the following trades. • Food Service Equipment • Access Control • Video Surveillance • Voice & Data • Toilet Partition and Accessories • Ceramic Tile If a prime contractor fails to specify a subcontractor for portion of work to be performed under the contract in excess of one-half of 1 percent of the prime contractor's total bid, the prime contractor agrees that he or she is fully qualified to perform that portion himself or herself, and that the prime contractor shall perform that portion himself or herself. However, E C Contractors does not hold specialty contractor licenses (see attached from CSLB web site) to perform above listed trades. Specifically, Food Service Equipment installers should be licensed to install Ansul system as well as the Hood System at Kitchen. Additionally, in order to perform the access control or video surveillance services, contractor needs to hold specialty licenses and be certified 5937 Darwin Ct., Ste. 103, Carlsbad, CA 92008 I Tel: 760.512.1188 • Fax: 619.330.4834 www.ConanConstruction.com 7 of 25 ATTACHMENT C October 15, 2019, Item # 4.1 CONAN ikiii.m`CONSTRUCTION installer of that specific system. E C Constructors Inc. does only hold License A, B and C-8, not any specialty licenses listed above. (see attached CSLB — Description of Classifications) If after award of contract, the prime contractor subcontracts any such portion of the work, the prime contractor shall be subject to the penalties named in California Public Contract Code, Division 2. General Provisions, Part 1. Chapter 4. Section 4111. Due to the above noted deficiencies, Conan respectfully requests that the City of Poway reject the bid of E C Constructors as nonresponsive. Sincerely, P in . 'akas ice Ies'dent Conan Construction 5937 Darwin Ct., Ste. 103, Carlsbad, CA 92008 Tel: 760.512.1188 • Fax: 619.330.4834 www.ConanConstruction.com 8 of 25 October 15, 2019, Item # 4.1 9/20/2019 Law section LEGISLATIVE INFORMATION Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites Code: Select Code • Section: Search 0 ua^ « Previous Next » cross-reference chapsered PDF 1 Add To My Favorites Search Phrase: Highlight PUBLIC CONTRACT CODE - PCC DIVISION 2. GENERAL PROVISIONS [1100 - 22355] (Division 2 enacted by Stats. 1981, Ch. 306. ) PART 1. ADMINISTRATIVE PROVISIONS [1100 - 9203] ( Heading of Part 1 added by Stats. 1982, Ch. 1120, Sec. 2. ) CHAPTER 4. Subletting and Subcontracting [4100 - 4114] ( Chapter 4 added by Stats. 1986, Ch. 195, Sec. 42.1. ) 4106. If a prime contractor fails to specify a subcontractor or if a prime contractor specifies more than one subcontractor for the same portion of work to be performed under the contract in excess of one-half of 1 percent of the prime contractor's total bid, the prime contractor agrees that he or she is fully qualified to perform that portion himself or herself, and that the prime contractor shalt perform that portion himself or herself. If after award of contract, the prime contractor subcontracts, except as provided for in Sections 4107 or 4109, any such portion of the work, the prime contractor shall be subject to the penalties named in Section 4111. (Added by Stats. 1986, Ch. 195, Sec. 42.1.) 9 of 25 https://leginfo.legisiature.ca.gov/faces/codes displaySection.xhtml?sectionNum=4106.8,1awCode=PCC October 15, 2019, Item # 4.1 1/1 CONTRACTORS STATE LICENSE BOARD California Department of Consumer Affairs 1-1,-r-oati41,MA October 15, 2019, Item # 4.1 DESCRIPTION OF CSLB LICENSE CLASSIFICATIONS 11 of 25 The California Contractors State License Board (CSLB) issues licenses to contract in particular trades or fields of the construction profession. Each separate trade is recognized as a "classification" Licensed contractors may add any classification for which they are qualified, upon application and examination. General contractor classification statutes are cited from California Business and Professions Code (BPC) sections 7056-7059. CSLB issues licenses for the following classifications: Class "A" — General Engineering Contractor The principal business is in connection with fixed works requiring specialized engineering knowledge and skill. Class "B" — General Building Contractor The principal business is in connection with any structure built, being built, or to be built, requiring in its construction the use of at least two unrelated building trades or crafts. Class "C" — Specialty Contractor There are 42 separate "C" license classifications for contractors whose construction work requires special skill and whose principal contracting business involves the use of specialized building trades or crafts. GENERAL CONTRACTORS "A" General Engineering A general engineering contractor is a contractor whose principal contracting business is in connection with fixed works requiring specialized engineering knowledge and skill, including the following divisions or subjects: irrigation, drainage, water power, water supply, flood control, inland water ways, harbors, docks and wharves, shipyards and ports, dams and hydroelectric projects, levees, river control and reclamation works, railroads, highways, streets and roads, tunnels, airports and airways, sewers and sewage disposal plants and systems, waste reduction plants, bridges, overpasses, underpasses and other similar works, pipelines and other systems for the transmission of petroleum and other liquids or gaseous substances, parks, playgrounds and other recreational works, refineries, chemical plants and similar industrial plants requiring specialized engineering knowledge and skill, powerhouses, power plants and other utilities plants 1 October 15, 2019, Item # 4.1 CSLB DESCRIPTION OF CLASSIFICATIONS and installations, mines and metallurgical plants, land leveling and earthmoving projects, excavating, grading, trenching, paving and surfacing work, and cement and concrete works in connection with the above mentioned fixed works. (BPC §7056) "B" General Building (a) A general building contractor's principal contracting business is in whole or partial connection with any structure built, being built, or to be built, for the support, shelter and enclosure of persons, animals, chattels, or moveable property of any kind requiring in its construction the use of at least two unrelated building trades or crafts, or to superintend the whole or any part thereof. This does not include anyone who merely furnishes materials or supplies under Section 7045 without fabricating them into, or consuming them in the performance of the work of the general buildin• contractor, (b) A general building contractor may take a prime contract or a subcontract for a framing or carpentry project. However, a general building contractor shall not take a prime contract for any project involving trades other than framing or carpentry unless the prime contract requires at least two unrelated building trades or crafts other than framing or carpentry, or unless the general building contractor holds the appropriate license classification or subcontracts with an appropriately licensed contractor to perform the work. A general building contractor shall not take a subcontract involving trades other than framing or carpentry, unless the subcontract requires at least two unrelated trades or crafts other than framing or carpentry, or unless the general building contractor holds the appropriate license classification. The general building contractor may not count framing or carpentry in calculating the two unrelated trades necessary in order for the general building contractor to be able to take a prime contract or subcontract for a project involving other trades. Fire Protection classification as provided for in Section 7026.12 or the "C-57" Well Drilling classification as provided for in Section 13750.5 of the Water Code, unless the general building contractor holds the appropriate license classification, or subcontracts with the appropriately licensed contractor. (BPC 57057) 2 CALIFORNIA CONTRACTORS STATE LICENSE BOARD 12 of 25 October 15, 2019, Item # 4.1 About CSL ublic Meetings Contact Us loin Our Mailing Lists' 010%554.100NY RF (O *LU Mfg AitA1RS CONTRACTORSonsumers Licensees Applicants Online Services Media Resources . STATE LICENSE BOARD Home 1 Online Services I License Details L_ Contractor's License Detail for License # 585677 DISCLAIMER: A license status check provides information taken from the CSLB license database. Before relying on this information, you should be aware of the following limitations. (hide/show disclaimer) F.) ra CSLB complaint disclosure is restricted by law (B&P 7124.6) If this entity is subject to public complaint disclosure, a Zink for complaint disclosure will appear below. Click on the link or button to obtain complaint and/or legal action information. Per B&P 7071.17 , only construction related civil judgments reported to the CSLB are disclosed. Arbitrations are not listed unless the contractor fails to comply with the terms of the arbitration. Due to workload, there may be relevant information that has not yet been entered onto the Board's license database. Business information E C CONSTRUCTORS INC 9834 RIVER STREET LAKESIDE, CA 92040 Business Phone Number:(619) 440-7181 Entity Corporation Issue Date 01/18/1990 Reissue Date 02/07/2006 Expire Date 02/29/2020 License Status This license is current and active. 13 of 25 October 15, 2019, Item # 4.1 All information below should be reviewed. B - GENERAL BUILDING CONTRACTOR C-8 - CONCRETE A - GENERAL ENGINEERING CONTRACTOR Bonding Information This license filed a Contractor's Bond with AMERICAN CONTRACTORS INDEMNITY COMPANY. Bond Number: 100054961 Bond Amount: $15,000 Effective Date: 01/01/2016 Contractor's Bond History The qualifying individual JAMES JEROME SUMMERS certified that he/she owns 10 percent or more of the voting stock/membership interest of this company; therefore, the Bond of Qualifying Individual is not required. Effective Date: 09/20/2016 BQI's Bond History WorkersCompensation` This license has workers compensation insurance with the REDWOOD FIRE AND CASUALTY INSURANCE CO Policy Number:ECWC011530 Effective Date: 05/01/2019 Expire Date: 05/01/2020 Workers' Compensation History Miscellaneous Information 14 of 25 October 15, 2019, Item # 4.1 (STEVE lvr: \'AUS, Mayor DAVE GROSCt1, Deputy Mayor CAYLLN FRANK, Councilmernbcr BARRY LEON.\RD, Councilmember JOHN MULLIN, Councilmember September 26, 2019 CITY OF POWAY Pelin Karakas, Vice President Conan Construction 5937 Darwin Ct. Suite 103 Carlsbad, CA. 92008 Subject: Bid Protest — Mickey Cafagna Community Center Bid No. 20-004 Dear Ms. Karakas: This letter is in response to your letter, submitted on behalf of Conan Constructions ("Conan") dated September 20, 2019 regarding the subject project. The City forwarded your letter to EC Constructors, Inc. ("ECC") and reviewed the claims presented in your letter. Based on both the City's independent evaluation of ECC's bid documents and its review of ECC's response (enclosed herewith for you reference), the City has found no reason to find that ECC's bid is nonresponsive, contrary to the position taken in your letter. I also note that the bid submitted by Conan was incomplete, as the category "Bid Item No. 1" was not completed, which would potentially justify a determination that Conan's bid is nonresponsive. However, the City has not made that determination. If you have any questions or concerns, please feel free to contact me at (858) 668-4602 or hazar@poway.org. Sincerely, DEVELOPMENT SERVICES DEPARTMENT a/ Hossein Azar, P.E. V Construction Project Manager Encl. ECC response letter c: Robert J. Manis, Director of Development Services Alan Fenstermacher, City Attorney Tom Frank, City Engineer C:1Users\2523\AppData\Local\Temp\s3gjy4tm\Response to Conan Construction 9-26-19,docx City Hall Located at 13325 Civic Center Drive Mailing Address: P.O. Box 789, Poway, California 92074-0789 15 of 25 A,T,TAgmv, T D October 15, 2019, Item # 4.1 a COTJUcIoEs Inc. LICENSE rTO. is88e'7 J 9834 River Street Lakeside, CA 92040 (619) 440-7181 Fax (619) 440-7180 EOE September 26, 2019 SENT VIA EMAIL ONLY City of Poway 13325 Civic Center Drive Poway, CA 92064 Attn: Hossein Azar Ref: Mickey Cafagna Community Center Subject: Response to Conan Construction Protest Letter Mr. Azar, This letter is written in response to protest letter dated 9/20/19 from Conan Construction to City of Poway. ECC received the letter via email 9/24/19. Below is ECC response to the subcontractor listing issues raised by Conan: • Food Service Equipment will be done by F.S.E with a total subcontract value of $25,000 which is less than' of 1% of our bid value and therefore not required by bid documents or Public Contract Code to be listed. • Access Control, Video Surveillance, & Voice Data are all being performed by listed subcontractor, Time & Alarm. This subcontractor was listed as "Structured Cable and Low Voltage" to encompass all the various portions of low voltage system work, except Fire Alarm, which we listed separately. Each individual component of the low voltage systems identified by Conan would be valued at less than 1/2 of 1% of our bid but collectively, the value required us to list a subcontractor for these low voltage systems. • Toilet Partitions & Accessories work on its own is valued at Tess than 1/2 of 1% and therefore would not require listing per PCC. However, ECC listed Caldwell Specialties for "Misc. Specialties" which includes this work and other specialty items to be performed by Caldwell which made their total subcontract value over % of 1% of our bid value. • Ceramic Tile will be done by Continental Marble and Tile with a total value of $37,184 which is less than 1/2 of 1% of our bid and therefore not required by PCC to be listed. ECC followed the requirements of the Contract Documents and Public Contract Code in the bidding of the project. We have listed all subcontractors with total subcontract values over 1/2 of 1% our bid amount as required. Please let us know if you require additional information on this issue. Regards, James J. Summers President 16 of 25 October 15, 2019, Item # 4.1 SECTION 8 CONSTRUCTION CONTRACT CITY OF POWAY MICKEY CAFAGNA COMMUNITY CENTER This Contract made and entered into this 16th day of October, 2019, by and between City of Poway, a municipal corporation of the State of California, hereinafter referred to as "City" and EC Constructors, Inc., hereinafter referred to as "Contractor." The City and the Contractor, for the consideration hereinafter named, mutually agree as follows: 1. The complete Contract includes all of the Contract Documents, which are incorporated herein by this reference, and include: a. This Contract b. Contract Addenda c. Contract Change Orders d. Instructions to Bidders, Proposal Requirements and Conditions e. Contract Specifications f. Contract Plans g. General Condition h. Special Conditions i. Standard Specification for Public Works, most current edition 2. The Contract Documents are complementary, and that which is required by one shall be as binding as if required by all. 3. Contractor shall provide and furnish all labor, materials, necessary tools, expendable equipment, and all utility and transportation services required for the following work of improvement as indicated in the plans and specifications: a. Demolition of existing Community Center and Senior Center buildings. b. Site excavation and grading for utilities. c. Construction of Community Center building. d. Various site improvements including, concrete walkways, handrails, and landscaping 4. Contractor agrees to perform all the said work and furnish all the said materials at his own cost and expense that are necessary to construct and complete in strict 17 of 25 ATTACVENT E October 15, 2019, Item # 4.1 conformance with Contract Documents and to the satisfaction of the City Engineer, the work hereinafter set forth in accordance with the Contract adopted by the City Council. 5. City agrees to pay and Contractor agrees to accept in full payment for performance of this work of improvement as described, the stipulated sum of $ the "Contract Price." City agrees to make progress payments and final payment in accordance with the method set forth in the Special Provisions. 6. Contractor agrees to commence construction of the work provided for herein within Fifteen (15) Calendar Days after the date specified in the Notice to Proceed, and to continue diligently in strict conformance with Contract Documents and without interruption, and to complete the construction thereof within Three Hundred (300). Working Days after the date specified in the Notice to Proceed. 7. Time is of the essence of this Contract, and it is agreed that it would be impracticable or extremely difficult to ascertain the extent of actual loss or damage which the City will sustain by reason of any delay in the performance of this Contract. It is, therefore, agreed that Contractor will pay as liquidated damages to the City the following sum: One Thousand Dollars ($1,000) per Calendar Day, for each and every Calendar Days delay in finishing the Work in excess of the number of Working Days prescribed above. If liquidated damages are not paid, as assessed by the City, the City may deduct the amount thereof from any money due or that may become due the Contractor under this Contract in addition to any other remedy available to City. By executing this Contract, Contractor agrees that the amount of liquidated damages is reasonable and shall not constitute a penalty. 8. In accordance with State of California Senate Bill No. 854, Contractor will maintain and will require all subcontractors to maintain valid and current Department of Industrial Relations (DIR) Public Works Contractor registration during the term of this project. Contractor shall notify the City in writing immediately, and in no case more than twenty-four (24) hours, after receiving any information that Contractor's or any of its Subcontractor's DIR registration status has been suspended, revoked, expired, or otherwise changed. 9. Contractor will pay, and will require all subcontractors to pay, all employees on said Contract a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations and wage standards applicable to this work, a copy of which is on file in the office of the City Clerk of the City of Poway. Federal prevailing wage rates apply for federally funded projects. Travel and subsistence pay shall be paid in accordance with Labor Code § 1773.1. 10. Contractor shall be subject to the penalties in accordance with Labor Code of § 1775 for each worker paid (either by him or by any subcontractors under him) less than the prevailing rate described above on the work provided for in this Contract. 18 of 25 30 October 15, 2019, Item # 4.1 11. Contractor and subcontractors shall comply with Labor Code § 1810 and § 1811 which stipulates that eight hours labor constitutes a legal day's work, and § 1812 which stipulates that the Contractor and subcontractors shall keep an accurate record showing the name of(and actual hours worked each calendar day and each calendar week by each worker employed by him in connection with the work performed under the terms of the Contract. Failure to comply with these sections of the Labor Code will subject the Contractor to penalty and forfeiture provisions of the Labor Code § 1813. 12. Contractor will comply with the provisions of Labor Code § 1777.5 pertaining to the employment of apprentices to the extent applicable to this Contract. 13. Contractor, by executing this Contract, hereby certifies: "I am aware of and will comply with the Labor Code § 3700 by securing payment for and maintaining in full force and effect for the duration of the contract, complete Workers' Compensation Insurance, and shall furnish a Certificate of Insurance to the City before execution of the Contract. The City, its officers, or employees, will not be responsible for any claims in law or equity occasioned by failure of the Contractor to comply with this paragraph." Contractor further agrees to require all subcontractors to carry Workers' Compensation Insurance as required by the Labor Code of the State of California. 14. Contractor shall, concurrent with the execution of this Contract, furnish two bonds approved by the City, one in the amount of One Hundred Percent (100%) of the Contract Price, to guarantee the faithful performance of the work ("Performance Bond"), and one in the amount of One Hundred Percent (100%) of the Contract Price to guarantee payment of all claims for labor and materials furnished ("Payment Bond"). This Contract shall not become effective until such bonds are supplied to and approved by the City. 15. a. Contractor shall procure and maintain at its own expense, until completion of performance, commercial general liability insurance of not less than Five Million Dollars ($5,000,000) combined single limit per occurrence, and Ten Million Dollars ($10,000,000) in the aggregate, for bodily injury, personal injury, death, loss or damage resulting from the wrongful or negligent acts by the Contractor or its officers, employees, servants, volunteers and agents and independent contractors. Contractor shall provide insurance on an occurrence, not claims -made basis. Contractor acknowledges and agrees that, for purposes of clarification with the intention of avoiding gaps in coverage with any umbrella or excess insurance, personal and advertising injury coverage shall be triggered by an "offense" while bodily injury and property damage coverage shall be triggered by an "occurrence" during the policy period. b. Contractor shall further procure and maintain at its own expense, until completion of performance, commercial vehicle liability insurance covering personal 19 of 25 31 October 15, 2019, Item # 4.1 injury and property damage, of not Tess than Five Million Dollars ($5,000,000) combined single limit per occurrence, and Ten Million Dollars ($10,000,000) in the aggregate, covering any vehicle utilized by Contractor or its officers, employees, servants, volunteers and agents and independent contractors in performing the services required by this Agreement. c. Contractor shall further procure and maintain at its expense, until completion of performance, workers' compensation insurance providing coverage as required by the California State Workers' Compensation Law. If any class of employees employed by the Contractor pursuant to this Agreement is not protected by the California State Workers' Compensation Law, Contractor shall provide adequate insurance for the protection of such employees to the satisfaction of the City. This provision shall not apply if Contractor has no employees performing work under this Agreement. Contractor agrees to waive its statutory immunity under any worker's compensation or similar statute, as respecting the City, and to require any and all subcontractors and any other person or entity involved with the Project to do the same. Worker's Compensation Insurance: o Contractor has no employees and is exempt from workers' compensation requirements. o Contractor carries workers' compensation insurance for all employees. d. All policies required by this section shall be secured from insurers authorized to do business in the State of California with an "A" policyholder's rating or better and a financial rating of at least Class VII, in accordance with the current Best's Ratings. e. Contractor agrees to require that all parties, including but not limited to subcontractors, architects, engineers or others with whom Contractor enters into contracts or whom Contractor hires or retains pursuant to or in any way related to the performance of this Agreement, provide the insurance coverage required herein, at minimum, and, except for worker's compensation coverage, name as additional insureds the parties to this Agreement. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Section. f. In the event this Agreement is terminated for any reason prior to the completion of all obligations and requirements of this Agreement, Contractor agrees to maintain all coverages required herein until the City provides written authorization to terminate the coverages following the City's review and determination that all liability posed under this Agreement as to the party providing insurance has been eliminated. g. Contractor agrees and acknowledges that if it fails to obtain all of the insurance required in this Agreement in accordance with the requirements herein, or to obtain and ensure that the coverage required herein is maintained by any subcontractors or others involved in any way with the Project, Contractor shall be 20 of 2532 October 15, 2019, Item # 4.1 16. 17. responsible for any losses, claims, suits, damages, defense obligations, or liability of any kind or nature attributable to the City, and/or its officers, employees, servants, volunteers, agents and independent contractors, that result from such failure by Contractor. a. Contractor shall provide certificates of insurance with original endorsements to the City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times until completion of performance and acceptance by the City. b. Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, the commercial general liability and commercial vehicle liability policies shall bear endorsements whereby it is provided that the City, and its officers, employees, servants, volunteers, agents and independent contractors are named as additional insureds. Additional insureds shall be entitled to the full benefit of all insurance policies in the same manner and to the same extent as any other insureds and there shall be no limitation to the benefits conferred upon them other than policy limits to coverages. c. Contractor shall require the carriers of all required insurance policies to waive all rights of subrogation against the City, and its officers, employees, servants, volunteers, agents and independent contractors. d. Each policy required herein must be endorsed to provide that the policy shall not be cancelled in coverage or limits (except by paid claims) unless the insurer has provided the City with 30 days prior written notice of cancellation. Contractor agrees to provide the City with 30 days written notice prior to any non -renewal or reduction in coverage or limits. e. All insurance policies required to be provided by Contractor or any other party must be endorsed to provide that the policies shall apply on a primary and noncontributing basis in relation to any insurance or self-insurance, primary or excess, maintained or available to the City, and its officers, employees, servants, volunteers, agents and independent contractors. a. Contractor shall defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damage, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therewith) to the extent actually caused by the negligence of Contractor, Contractor's employees, subcontractors or independent contractors except for any such claim arising out of the negligence or willful misconduct of the City, or its officers, agents, employees or volunteers. b. The City does not, and shall not, waive any rights that it may have against Contractor under this Section because of the acceptance by the City, or the deposit 21 of 2533 October 15, 2019, Item # 4.1 with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, action, damage, liability, Toss, cost or expense described herein. 18. Any amendments to any of the Contract Documents, including but not limited to Contract Change Orders, must be in writing executed by the Contractor and the City. Any time an approval, time extension, or consent of the City is required under the Contract Documents, such approval, extension, or consent must be in writing in order to be effective. 19. The Contract Documents contain all of the agreements and understandings of the parties and all previous understandings, negotiations, and contracts are integrated into and superseded by this Contract. 20. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Contract shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Contract which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder. 21. The persons executing this Contract on behalf of the parties hereto warrant that they are duly authorized to execute this Contract on behalf of said parties and that, by so executing this Contract, the parties hereto are formally bound to the provisions of this Contract. 22. This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, and assigns. 23. In performing its obligations and duties under this Contract, each party shall comply with all applicable local, state, and federal laws, regulations, rules, standards and ordinances. 24. This Contract may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument. 25. After completion of the work contemplated by this Contract, Contractor shall file with the City Manager an affidavit stating that all workers and persons employed, all firms supplying materials, and all subcontractors upon the project have been paid in full, and that there are no claims outstanding against the project for either labor or materials, except certain items, if any, to be set forth in an affidavit covering disputed claims or items in connection with a Stop Notice that has been filed under the provision of the laws of the State of California. 26. All work shall be subject to inspection and testing by City and its authorized representatives during manufacture and construction and all other times and places, 22 of 2534 October 15, 2019, Item # 4.1 including, without limitation, the plans of Contractor and any of its suppliers. Contractor shall provide all reasonable facilities and assistance for the safety and convenience of inspectors. All inspections and tests shall be performed in such manner as to not unduly delay the work. The Work shall be subject to final inspection and acceptance notwithstanding any payments or other prior inspections. Such final inspection shall be made with a reasonable time after completion of the work. 27. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of the Contract, Contractor shall immediately give notice thereof, including all relevant information with respect thereto, to City. 28. Contractor agrees to contact the appropriate regional notification center in accordance with Government Code Section 4216.2. 29. Contractor shall submit its detailed plan for worker protection during the excavation of trenches required by the scope of the work in accordance with Labor Code Section 6705. 30. a. Contractor shall, without disturbing the condition, notify City, in writing, as soon as Contractor, or any of Contractor's subcontractors, agents, or employees have knowledge and reporting is possible, of the discovery of any of the following conditions: i. The presence of any material that Contractor believes is hazardous waste, as defined in Section 25117 of the Health and Safety Code; ii. Subsurface or latent physical conditions at the site differing from those indicated in the specifications; or iii. Unknown physical conditions at the site of any unusual nature, different materially for those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract. b. Pending a determination by City of appropriate action to be take, Contractor shall provide security measures (e.g., fences) adequate to prevent the hazardous waste or physical conditions from causing bodily injury to any person. c. City shall promptly investigate the reported conditions. If City, through and in the exercise of its sole discretion, determines that the conditions do materially differ or do involve hazardous waste, and will cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, then City shall issue a change order. d. In the event of a dispute between City and Contractor as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the 23 of 2535 October 15, 2019, Item # 4.1 work, Contractor shall not be excused from any scheduled completion date, and shall proceed with all work to be performed under the contract. Contractor shall retain any and all rights that pertain to the resolution of disputes and protests between the parties. 31. This Contract is to be governed by the laws of the State of California. 32. All work shall be guaranteed for a period of one (1) year from the date of acceptance by the City. Contractor shall promptly make all needed repairs arising out of defective materials, workmanship, and equipment. City is hereby authorized to make such repairs if within ten (10) days after giving written notice to Contractor, or its agent, Contractor should fail to make or undertake with due diligence the aforesaid repairs; provided, however, that in case of an emergency, where, in the opinion of City, delay would cause serious loss or damage, repairs may be made without notice being sent to Contractor, and Contractor shall pay the costs thereof. (Remainder of page intentionally left blank) 24 of 2536 October 15, 2019, Item # 4.1 IN WITNESS WHEREOF, the said Contractor and the Director of Public Works, City Manager Mayor and City Clerk of the City have caused the names of said parties to be affixed hereto, the day and year first above written. Contractor's Name: Print Name of Construction Company By: Signature Print Name Contractor information: Address for Notices and Payments Telephone Number: Email: CITY OF POWAY a Municipal Corporation City Manager of the City of Poway ATTEST: City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP END OF SECTION 25 of 25 37 October 15, 2019, Item # 4.1