Item 6 - Award of Contract to Kay Const. Co. for the WTP Clearwell Dist. Flow Meters Proj; Bid 21-008December 15, 2020, Item #6DATE: TO: FROM: CONTACT: SUBJECT: Summary: AGENDA RE PO RT City of Poway December 15, 2020 Honorable Mayor and Members of the City Council Robert Manis, Director of Development Services fM Andrea Thomas, Associate Civil Engineer (858) 668-4605 or athomas@poway.org CITY COUNCIL Award of Contract to Kay Construction Co. for the WTP Clearwell Distribution Flow Meters Project; Bid No. 21-008 This action will award a construction contract for the Water Treatment Plant (WTP) Clearwell Distribution Flow Meters Project. The project will improve access to an underground vault and replace a flow meter directly downstream of the Lester J. Berglund WTP Clearwell reservoir. Recommended Action: It is recommended that the City Council award the contract for the WTP Clearwell Distribution Flow Meters project to the lowest responsible and responsive bidder, Kay Construction Co., in the amount of $131,557.00. Discussion: The current flow meters are operated seasonally according to high and low demand, requiring manual reconfiguration of the water distribution system and confined space entry into an underground vault that houses meters and valves. As the flow meters are near the end of their useful life and require labor intensive maintenance, the City contracted with a consultant, Infrastructure Engineering Corporation, to upgrade the design. The City currently reads flow rates of potable water leaving the WTP using two separate flowmeters; one to read the lower flows of the winter season and one for the higher demand during the summer. The project will replace the two existing flow meters with one new meter that will eliminate the manual reconfiguration by reading the full range of user demand year round, eliminate regular maintenance, and improve access to the underground vault. The contract time for this project is 90 working days with an Engineer's Estimate of $270,000. Bids were opened on November 18, 2020. The following ten bids were received: 1 of 14
December 15, 2020, Item #6Company Total Bid Amount Kay Construction Co. $131,557.00 M-Rae Engineering, Inc. $160,000.00 Jennette Company, Inc. UCI) $167,840.00 Bunker Engineering $197,485.00 Tharsos, Inc. $212,000.00 LB Civil Construction $244,797.00 Performance Plumbing & Mechanical, Inc. $248,660.00 AToM Engineering Construction, Inc. $257,398.00 Ahrens Mechanical $267,500.00 Blue Pacific Engineering & Construction $287,800.00 On November 19, 2020, a letter of protest (Attachment B) was received from the third lowest bidder, Jennette Company, Inc. Uennette) in response to the City's determination of the lowest bidder. Jennette noted some information missing from the two lower bids and suspected them to be in violation of the Public Contracting Code for requirements related to listing subcontractors. Staff obtained additional information from the low bidder and found no violation had occurred. After further review of the bid protest by the City Attorney, the determination of the lowest bidder remains as outlined in the response letter from the City to Jennette (Attachment C). The lowest responsible bidder, Kay Construction Co., is recommended for the award of contract. Environmental Review: The proposed project is Categorically Exempt from the California Environmental Quality Act (CEQA) as a Class 1 Categorical Exemption, pursuant to Section 15301 of the CEQA Guidelines, in that the project involves the replacement of an existing flow meter and upgrades to an existing underground vault. Fiscal Impact: This project is funded from the Water Operations Fund. Sufficient funding in the amount of $131,557.00 is available in the WTP Clearwell Distribution Flow Meters Project account (WTR0022) for the award of this contract. Public Notification: None. Attachments: A. Contract B. Jennette Company, Inc. Letter of Protest dated November 19, 2020 C. City Response Letter dated November 24, 2020 Reviewed/ Approved By: Assistant City Manager 2 of 14 Reviewed By: Alan Fenstermacher City Attorney App roved By: Ch~e City Manager
December 15, 2020, Item #6SECTION 8 CONSTRUCTION CONTRACT CITY OF POWAY WTP CLEARWELL DISTRIBUTION FLOW METERS PROJECT This Contract made and entered into this 16th day of December 2020, by and between City of Poway, a municipal corporation of the State of California, hereinafter referred to as "City" and Kay Construction Co. 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 2. 3. 3 of 14 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, The Contract Documents are complementary, and that which is required by one shall be as binding as if required by all. 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: Demolition of the concrete top slab of an existing below-grade flow measurement vault and demolition of steel pipe and existing electrical and instrumentation in the vault. The work also includes the reconstruction of the concrete top slab with a new access hatch, new steel pipe and piping appurtenances in the vault, the addition of a new magnetic flow meter, new electrical and instrumentation facilities and other related facilities to make for a fully operational flow measurement system for the potable water from the clearwell of the Lester J. Berglund Water Treatment Plant. ATTACHMEfJT A
December 15, 2020, Item #64. 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 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 $131,557.00, the "Contract Price." 6. 7. 8. 9. 10. 4 of 14 City agrees to make progress payments and final payment in accordance with the method set forth in the Special Provisions. 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 90 Working Days after the date specified in the Notice to Proceed. 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: $500 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. 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. 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. 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. 2
December 15, 2020, Item #611. Contractor and subcontractors shall comply with Labor Code § 181 O 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 5 of 14 performance, commercial general liability insurance of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) 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 3
December 15, 2020, Item #66 of 14 injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, and Two Million Dollars ($2,000,000) 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 4
December 15, 2020, Item #6responsible 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. 16. 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. 17. a. Contractor shall defend, indemnify and hold harmless the City, its officers, 7 of 14 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 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 5
December 15, 2020, Item #618. 19. 20. 21. 22. 23. 24. 25. 26. 8 of 14 Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, action, damage, liability, loss, cost or expense described herein. 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. 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. 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. 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. 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. 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. 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. 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. 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, including, without limitation, the plans of Contractor and any of its suppliers. Contractor shall provide all reasonable facilities and assistance for the safety and 6
December 15, 2020, Item #6convenience 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 within 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 9 of 14 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 taken, 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 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 7
December 15, 2020, Item #6retain 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) 10 of 14 8
December 15, 2020, Item #6IN WITNESS WHEREOF, the said Contractor and the City Manager, City Clerk and City Attorney 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: ATTEST: Vaida Pavolas, CMC, City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP Alan Fenstermacher, City Attorney 11 of 14 CITY OF POWAY a Municipal Corporation Chris Hazeltine, City Manager 9
December 15, 2020, Item #6JC I Jennette Company, Inc. P.O. Box 501792 San Diego, CA 92150 Lic.#1007413 November 19, 2020 Ms. Andrea Thomas City of Poway 13325 Civic Center Dr. Poway, CA 92064 Re.: WTP Clearwell Distribution Flow Meters Project Bid No. 21-008 Dear Ms. Thomas, via email Jennette Company, Inc. (JCI) is a bidder on the above referenced project. We protest an award to the two apparent low bidders as they did not satisfy the requirements of the solicitation. Neither bidder listed a subcontractor for the lead remediation. Specification section 01170, paragraph 1.5 states, "A. The steel water pipe in the flow measurement vault is coated with paint that is likely to be lead containing paint. For the purposes of the bid the Contractor shall include testing, abatement and disposal of the lead containing paint in their bid." The paragraph also states, "B. Lead containing paint shall be remediated by a subconsultant certified by the State in the abatement of lead paint." Apparent low bidder no. 1 and no.2 both failed to list a subcontract for this scope of work. Per Public Contract Code, Subletting and Subcontracting Fair Practices Act, a Prime Contractor is required to list each subcontractor who will perform work or labor or render service 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, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications, in an amount in excess of one-half of 1 percent of the prime contractor's total bid. All of the bids received by JCI for this scope of work exceeds the one-half of 1 percent threshold, so a subcontractor needs to be listed. The requirements, as listed above, clearly states that a State certification is necessary, neither apparent low bidder possess this certification, so a subcontractor would have to be used and since neither listed a subcontractor their bids are non-responsive to the solicitation and they should not be awarded the project. We request that no award be made on this project until we have ample time to review the rejection from the City, if any, and respond accordingly. We believe that our bid meets the contract requirements and we are the low responsive bidder for this project. An award of the contract to any bidder besides JCI would violate California Government Code, standards and practices applicable to competitive bidding on public works projects. llPage 12 of 14 ATTACHMENT B
December 15, 2020, Item #6Please feel free to contact me if you have any question. My number is 858.583.2893. Sincerely, ~~?;;; __ _ Brian J. Jennette President 13 of 14 2 I Page
December 15, 2020, Item #6STEVE V A,US, Mayor CA YLIN FRANK, Deputy Mayor DA VE GROSCH, Councilmcmber BARRY LEONARD, Councilmernber JOHN MULLIN, Coundlmember November 24, 2020 Brian J. Jennette Jennette Company, Inc. 11512 Trailbrook Lane San Diego, CA 92128 CITY OF POWAY Subject: Bid Protest of Bid #21-008 -WTP Clearwell Distribution Flow Meters Dear Mr. Jennette: The City is in receipt of your bid protest letter dated November 19, 2020. City staff, along with the City Attorney, has reviewed the letter and determined the low bid to be compliant With the Public Contracting Code section 4104 cited in your protest The low bidder has proven to the City's satisfaction that the cost for lead abatement as scoped in this project was included in the low bidder's price and does not exceed one-half of 1 % of their total bid price. In conclusion, yo-ur argument with respect to Section 4104 and the subcontractor listing requirement is not applicable. City staff will be recommending award of the contract to the lowest bidder, Kay Construction Go. Sincerely, ERVICES DEPARTMENT E City Engineer c: Bob Manis, Director of Development Services Alan Fenstermacher, City Attorney Andrea Thomas, Associate Civil Engineer City Hall Located at 13325 Civic Center Drive Mailing Address: P.~T~H'l6tE,mrway, California 92074,0789 www.poway.org