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Home My WebLink AboutStaff Report 4.A 07/01/2019p,L Agenda Item #4.A R Z85$ DATE: July 1, 2019 TO: Honorable Mayor and Members of the City Council through City Manager FROM: Jason Beatty, P.E. — Assistant Director, Public Works and Utilities Ken Eichstaedt, P.E. — Senior Civil Engineer SUBJECT: Resolution Authorizing Award of Contract for the Petaluma River Flood Management Denman Reach 4 Project RECOMMENDATION It is recommended that the City Council adopt the attached Resolution Authorizing Award of Contract for the Petaluma River Flood Management Denman Reach 4 Project to Coastside Concrete and Construction, Inc. for $1,338,520. BACKGROUND Completing flood mitigation projects within the Petaluma Watershed along with development of a river and creek front trail system, was envisioned in the City's 1996 River Access and Enhancement Plan. The Enhancement Plan was adopted as a policy in 2008 (revised 2012) in the General Plan 2025. At completion, the four phases of the Denman Reach flood mitigation projects will meet this policy. Flood plain modeling conducted identified that the completed project (all four phases) will lower the flood elevation for a one -hundred -year storm up to 1 foot in areas around Industrial Avenue and Corona Road. In Phases 1 through 3, work conducted from 2005 through 2018 included: 1) Acquiring several vacant parcels; 2) Developing permanent trail easements and trails; 3) Opening the river channel with terracing; and, 4) Creating wetlands and riparian habitat. This final phase began in the fall of 2016, when the Sonoma Water Agency (Agency) approached the City with a grant opportunity for $1.9 million from the California Department of Water Resource (DWR) Proposition 1 funds for a flood mitigation project. The Phase 4 project includes: 1) Acquiring the last undeveloped parcel on Industrial Avenue on the river side, 5.47 acres purchased in 2018); 2) Developing a multi -use trail; 3) Creating two flood detention basins; 4) Developing mitigation wetlands and riparian habitat; and 5) Removing sediment buildup in the Petaluma River stream channel at the Corona Road Bridge while reducing further erosion. See Location Map as Attachment 2. In these elements, the project will lower flood elevations, protect river corridor open space, create additional river access trails, increase riparian habitat, and reduce the risk of scour of the foundation of the Corona Road Bridge. In May 2017, DWR approved an amendment to an existing Prop 1E grant agreement to allow the Agency to complete the Petaluma River Flood Management Denman Reach 4 project in lieu of a previously approved project in Sonoma Valley. In February 2018, the City entered into a Funding Agreement with the Agency to execute the project. Based on the project characteristics, it was determined that CEQA could be satisfied by adopting a Mitigated Negative Declaration. Because of the funding schedule limitations, all monies must be spent by December 1, 2019. Further discussion with the Agency and DWR has indicated through Amendment 2, the project agreement termination date will be September 30, 2020. DISCUSSION City staff performed the conceptual, 70%, 90% and final design for the project and was supported by West Consultants for hydraulic modeling and WRA, Inc. for the environmental permitting. All regulatory permits, either draft of final, have been received from the Army Corp of Engineers, Regional Water Quality Control Board, California Department of Fish and Wildlife, U.S. Fish and Wildlife Service, National Marine Fisheries. City staff issued a pre-bid announcement March 27, 2019. The Notice Inviting Bids along with contract documents, plans and specifications, was issued on April 10, 2019. A pre-bid conference and site walk was conducted on April 25, 2019. On May 13, 2019, eight (8) bids were received. Name of Bidder Bid Total Coastside Concrete and Construction $13338,520 Lowest responsive bid Team Ghilotti $1,410,777 Ghilotti Bros. $1,529,760 McCullough Construction $1,694,033 Ghilotti Construction $1,718,363 Cats 4U $1,847,822 DMK Contractors $1,975,224 Hanford Applied Restoration Construction $2,018,000 Engineers Estimate $1,389,060 The Notice Inviting Bids that the City issued soliciting bids for the project specified in accordance with Public Contract Code section 20103.8 that the lowest bid for the project would be determined base on the lowest bid submitted for the Base Bid and Bid Alternate 1. The apparent lowest bidder for the Base Bid plus Bid Alt 1, was Coastside Concrete and Construction, LLC. (Coastside). Following opening of project bids on May 13, 2019, Team Ghilotti, the second low bidder, submitted a later dated May 17, 2019 (Attachment 4) protesting the bid of Coastside Concrete. In the May 17 letter, Team Ghilotti asserts that the Coastside bid is not responsive due to Coastside's failure to list a surveying and staking contractor in its bid submitted May 13. Coastside responded to the Team Ghilotti protest via an undated letter received May 20, 2019 (Attachment 5). In the May 20 letter, Coastside asserts, seemingly contradictorily, that Coastside is capable of performing the surveying and staking work in house, but that, as indicated in Coastside's subcontractor list submitted to the City on May 14, Coastside may contract with the Cinquini and Passarino surveying firm for surveying and staking. The May 20 letter also seems to indicate that the value of the surveying and staking work required would be less than the 1/z of I% statutory threshold requiring listing of the subcontractor. In 2 response to the Coastside May 20 letter, Team Ghilotti sent further correspondence dated May 21, 2019 (Attachment 6). In the May 21, 2019 letter, Team Ghilotti continues to assert that the Coastside bid failed to list a surveying and staking subcontractor as required. By letter dated May 24, 2019 (Attachment 7), Mark Rice, legal counsel for Team Ghilotti discusses at length the subcontract listing requirements in the City's bid documents and the subcontract listing statute, Public Contract Code section 4104, to assert that the Coastside bid is non-responsive for failure to list a surveying and staking subcontractor in its bid, and that the City may not waive that defect. On May 29, 2019 Coastside sent further correspondence (Attachment 9) asserting that the work that Coastside conceded in its May 14 submission would be performed by a subcontractor would total less than the statutory listing requirement, and therefore that the Coastside bid is responsive. Finally, on June 5, 2019, Phillip Jaret, representing Coastside sent correspondence (Attachment 8) asserting that the statutory references in the City's subcontract listing form do not include Section 4104 of the Public Contract Code (the subcontract listing statute), and that the subcontract listing requirement does not apply to licensed surveyors. The June 5 letter also asserts that the Public Contract Code prohibits the City from awarding Alternate 1 as part of the project because the estimated amount for Alternate 1 exceeds 10% of the project costs. ANALYSIS Staff has carefully reviewed the Coastside bid, the bid protest and other correspondence submitted on behalf of Team Ghilotti and Coastside, the City's bid documents, the subcontract listing law in Public Contract Code section 4104 and related statutes and case law. Following such review, staff has concluded that for purposes of the City's contracting requirements and the subcontract listing laws, the Coastside bid was responsive, in accordance with the following analysis. Regarding the law governing City of Petaluma public works bidding and contracting, it should first be noted that Petaluma is a charter city, and public works contracting is a municipal affair, and therefore, the City may impose bidding requirements not specifically restricted or limited by state law. MCM Construction, Inc. v. City and County of San Francisco (1998) 66 CA4th 359. Nonetheless, we believe the following analysis reaches the same result as would be the case for a general law City, because the City's bidding and contracting requirements and those of the state are in accord. Section 5.2 of the Bidder's Instructions that make up part of the City's standard public works project bid documents (and Section 4104 of the Subcontractor Listing Law in Public Contract Code), both require that bids for the City's public works projects must set forth: The name, the location of the place of business, the California contractor license number, and public works contractor registration number issued pursuant to Section 1725.5 of the Labor Code of 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 or, in the case of bids or offers for the construction of streets or. 3 highways, including bridges, in excess of one-half of 1 percent of the prime contractor's total bid or ten thousand dollars ($10,000), whichever is greater. The survey/staking component of the Project work will require a professional land surveyor as this is a specialized task (as also specified in Technical Specifications Sections 10 and 19 of the Project bid and contract documents). A Contractor would not be qualified to self -perform such work unless they had a licensed Professional Land Surveyor on staff. All bids submitted for the Project (except the Coastside bid) included a completed List of Subcontractors form from the City's bid documents. The bids submitted by Team Ghilotti (second lowest bidder), Cats 4 U and PMK Contractors listed licensed surveyor firms as subcontractors that would perform the surveying and staking items of work for the project. Ultimately, Coastside submitted a List of Subcontractors form (Attachment 3) indicating that Coastside would issue.a subcontract to Cinquini and Passarino for surveying work. However, Coastside submitted the List of Subcontractors on May 14, 2019 one day after Project bids were due. The table below shows the bid amounts the Project bidders listed for the surveying/staking items of work. The table shows that each bidder listed a cost for the surveying and staking items of work that exceeds the statutory listing threshold of one-half of 1 percent of the Contractor's total bid. Section 4106 of the subcontractor listing law in the Public Contract Code provides as follows: 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 shall 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. 0 BID AMOUNT Item 2: % of Survey to BIDDER (Base + Alt.1) Survey Total Bid Amount Coastside Construction $1,338,520 $20,000 1.49% Team Ghilotti $1,410,777 $30,654 2.17% Ghilotti Bros $1,529,760 $50,500 3.30% McCullough Construction $1,694,033 $53,823 3.18% Ghilotti Construction $1,718,363 $41,400 2.41% Cats 4 U $1,830,026 $64,000 3.50% PMK Contractors $1,975,224 $28,600 1.45% Hanford $2,018,000 $28,990 1.44% Engineer's Estimate $1,389,060 $20,000 I 1.44% Section 4106 of the subcontractor listing law in the Public Contract Code provides as follows: 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 shall 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. 0 Because the Coastside bid, when submitted, did not list any subcontractors, including any surveying and staking subcontractors, in accordance with Public Contract Code section 4106, in submitting its bid, Coastside has certified that it is fully qualified to perform the surveying and staking work itself, and will perform the grading and staking work itself. If Coastside, after award of the project contract, subcontracts surveying and staking work (or any other work) in excess of $6,692.60 (1/2 of 1% of the Coastside bid amount of $1,338,520), Coastside will be subject to the penalties in Public Contract Code Sections 4110 and 4111. Under Section 4110, Coastside may be subject to cancellation of their contract or imposition of a penalty of 10% of the amount of the prohibited subcontract. Under section 4111, Coastside may be subject to disciplinary action by the Contractors State Licensing Board. California law provides that local agencies may waive bid irregularities in response to competitively bid solicitations as long as such a waiver does not result in granting an unfair advantage. Ghilotti Construction Co. v. City of Richmond (1996) 47 C.A.4" 897. Awarding agencies may not waive bid non -conformities that if waived could result in such things as bidders not being bound by their bid, or bidders not providing security for their bid or affecting the ability of the awarding agency to make bid comparisons. However, the purpose of the competitive bidding laws is to protect the public, not contractors. Domar Electric Inc. V. City of Los Angeles (1994) 9 C4th 161. The purpose of the subcontractor listing law is to generally require contractors to contract with the subcontractors listed in their bid to prevent bid shopping by general contractors and bid peddling by subcontractors for the protection of the public and subcontractors (not contractors). Synergy Project Management Inc. v. City and County of San Francisco (2019) 33 C.A.5" 21. If Coastside were permitted to subcontract work in excess of the statutory listing threshold to a subcontractor not listed in their original bid that would permit Coastside to shop bids for surveying and staking work after the bid opening. Coastside's bid submitted on May 13, 2019 did not list any subcontractors. The day after the bid opening, Coastside submitted a version of the City's subcontractor listing form apparently conceding that Coastside may subcontract surveying and staking work to the Cinquini and Passarino firm. The May 20, 2019 Coastside letter (Attachment 5) appears to assert that the value of the surveying/staking work that Coastside may subcontract is less than 0.5% of its total bid amount (i.e., less than $6,692.60). This Coastside is free to do under the subcontractor listing law and the City's bid and contract documents, as long as Coastside is able to self -perform all the remaining surveying and staking work. If it is not, Coastside will be subject to the penalties in Public Contract Code sections 4110 and 4100. Coastside cannot be permitted to modify their bid after bid opening, because that would prejudice other bidders and the City in evaluating and comparing bids. Ghilotti Construction Co. v. City ofRichmond (1996) 47 C.A.4" 897. Accordingly, Coastside's failure to list any subcontracts in its bid is not cured by late submission of the City's subcontractor listing form. Bid responsiveness should be determined from the face of the bid. Great W. Contractors. Inc. v. Irvine Unified Sch. Dist. (2010) 187 CA4th 1425. Coastside's own bid assigns a value of $20,000 to the surveying and staking items of work, and Coastside's bid did not list any subcontractors. In accordance with the City's bid forms and Public Contract Code section 4104, Coastside may subcontract a maximum of $6,692.60 in surveying work and must perform the rest with its own forces or be subject to Section 4110 and 4111 penalties. In response to issues raised on behalf of Team Ghilotti in its bid protest and related correspondence, and in accordance with the authorities discussed above, the Coastside bid is responsive, as determined from the face of the bid, as long as Coastside performs no more than $6,692.60 of the project surveying and staking work by subcontract, and the rest with its own forces. If it does not, it will be subject to penalties. Regarding Team Ghilotti's assertion that the Coastside responses regarding qualifications were non-responsive, there was nothing in the Coastside response that prevented Coastside from being bound by their bid or related security; or that prevented the City from comparing bids, or that otherwise created an unfair advantage for Coastside. Regarding the letter submitted by legal counsel for Team Ghilotti, staff agree that under the law, Coastside will be prohibited from subcontracting in excess of 0.5% of the contract amount or $6,692.60, except as otherwise permitted by law, such as in case of City -approved change orders or emergencies. If Coastside subcontracts in excess of the statutory limit, the penalties in Public Contract Code sections 4110 and 4111 will apply. Particularly in view of the fact that the purpose of the competitive bidding laws and the subcontractor listing laws is to protect the public, not general contractors, there is nothing in the Coastside bid that requires that the City reject it, and award the project to Team Ghilotti, at an increased cost to the public of $72,757. Regarding the correspondence submitted by legal counsel for Coastside, staff would like to note that staff believe the City's subcontractor listing form is intended to refer to and incorporate sections 4102 and following of the Public Contract Code (including section 4104). Also, as a charter city, Petaluma may impose bidding requirements not specifically restricted or limited by state law, and there is nothing in the City's bid and contracting documents that excuses listing subcontractors who will perform survey and staking work. Finally, the City's decision to award the base bid and Alternate 1 is perfectly lawful, notwithstanding the substantial estimated cost for Alternate 1. Section 10126 of the Public Contract Code cited by counsel is part of the State Contract Act (Public Contract Code sections 10100-19150). It does not apply to municipalities. City staff prepared and sent a letter to Coastside (Attachment 10) informing them that staff intended to recommend that the City Council reject the Coastside bid as nonresponsive as a result of the failure to include a completed subcontractor list with their bid. The purpose of such notice is to permit bidders to provide the awarding agency information concerning bid responsiveness. Ghilotti Construction Co. v. City of Richmond (1996) 47 C.A.4th 897. Following further staff review of Coastside's bid package along with the communications received from Coastside Concrete and Construction and their legal counsel and Team Ghilotti and their legal counsel, listed above, staff recommend that the protest of Team Ghilotti be rejected and the project awarded to Coastside as the submitter of the lowest responsive bid. Upon review of the bid documents, staff verified that Coastside Concrete and Construction, Inc. possesses the required Class A California Contractor's License, number 995338, which expires on August 2020, which is appropriate for the work. The bid identified three additive alternate bid schedules to allow the City to maximize additional improvements if funding permitted and to provide for services to establish the wetland and riparian mitigation habitat for the first year. The base bid schedule covered the construction of the flood detention basins, wetland enhancement and creation, irrigation, and hydroseeding. Bid Alternate 1, which staff recommend be awarded, adds erosion control, sediment removal at Corona Bridge, and wetlands mitigation. The Base Bid plus Bid Alternate 1 was the basis for determining the low bid, as specified in the bid documents. M Bid Alternate 2 is for 1,000 feet of trail that would encircle the flood detention basins. Bid Alternate 3 includes a year of wetland and riparian mitigation management. Staff recommend against awarding bid Alternates 2 and 3 as the budget is not sufficient to support these items. A Mitigated Negative Declaration for the project was approved by Resolution 2019-03 N.C.S. adopted by the City Council on January 7, 2019. Construction is scheduled to begin in early July and will continue for 109 working days, weather conditions permitting. Construction management will be conducted by City staff with assistance from WRA for environmental services and a consulting material testing firm. It is recommended that the City Council authorize the City Manager to execute a contract for the Petaluma River Flood Management Denman Reach 4 Project for the Base Bid and Bid Alternative 1 to the lowest responsive and responsible bidder, Coastside Concrete and Construction, Inc., in the amount of $1,338,520 for the Project Base bid and Alternate 1. PUBLIC OUTREACH An Initial Study and Mitigated Negative Declaration (MND) for the project was prepared, published, and circulated for public comment in August 2018. Public Notice of the document's availability was published in the Argus Courier on August 30, 2018 and distributed to all property owners within a 500 -foot radius of the project site a week prior to the publishing date. Public Notice was also distributed to the State Clearinghouse and all appropriate referral agencies. Comments received were from the regulating agencies and one local citizen and responses were included in the Final Initial Study and the Councils adoption of the MND on January 7, 2019. Quarterly reports on the project are provided to Sonoma Water and Department of Water Resources. City staff presented updates on the project to the Sonoma Water and Zone 2A Committee at its regular public meetings, and most recently on March 20, 2019. In addition, updates on project progress were presented at City Council meetings as approval was sought for funding agreement authorizations, land acquisitions, professional service agreements, and MND adoption. The Staff will be meeting with adjacent property owners prior to the start of construction. Prior to formal construction beginning, sign boards will be erected with a project description and contact information provided. FINANCIAL IMPACTS The.approved FY 18/19 CIP budget for the total project was estimated at $2,658,000 (for planning, land acquisition, permitting, design and construction costs). Project funding is comprised primarily of Department of Water Resources Grant with Sonoma County Water Agency Zone 2A, and City storm drainage impact fees for local grant match as summarized in the table that follows. VA Petaluma River Flood Management Denman Reach Phase 4, Project 016301722 Contingency - $94,257 CIP Overheads - $7,000 TOTAL I Proposed Budget Revised Budget USES FY18-19 Through FY19/20 Planning/Environmental $160,000 $210,000 Land/Easements $1,125,000 $1,004,294 Design $54,000 $46,754 Legal Services $12,000 - Administration $35,000 $15,000 Construction Contracts $1,140,000 $1,338,520 Construction $132,000 $50,000 Management $1,748,000 $1,748,000 Contingency - $94,257 CIP Overheads - $7,000 TOTAL I $2,658,000 I $2,765,825 Adopted Budget Revised Budget SOURCES FY17-18/FY18-19 Thru FY19/20 County of Sonoma for $107,825 bridge protection* Storm Drainage Fees $29,000 $29,000 (City) SCWA Zone 2A $881,000 $881,000 Assessments Dept. of Water $1,748,000 $1,748,000 Resources Grant Total Funds I $2,658,000 I $2,765,825 *NOTE: City staff have been in discussion with the County of Sonoma for the County to fund the $107,825 for installation of the rip -rap for scour protection at the Corona Bridge (located in unincorporated Sonoma County). If funding is not available from the County, this portion of the work will be removed. The County has confirmed this funding is available and City staff is working with the County to develop a cost sharing agreement. The funding source, from both Sonoma Water and DWR, is through Sonoma Water for $2,634,624 via Funding Agreement for the Petaluma River Flood Management and Enhancement Project (February22, 2018 letter to City) and County of Sonoma Summary Report Agenda Item 6 (February 6, 2018). It is anticipated that grant funds will be fully expended for this project and any unused local funds will be returned to the appropriate accounts for use on future projects. The City will look E for opportunities to implement Bid Alternative 2: Quarry Fine Trail ($92,000) that is currently not funded. One option will be to use the contingency identified above. ATTACHMENTS 1. Resolution 2. Location Map 3. Coastside List of Subcontractors Denman Phase 4 May 14, 2019 4. TGI Protest Denman P4 May 17, 2019 5. Coastside Response Denman Phase 4 May 20, 2019 6. TGI Response Protest Denman P4 May 21, 2019 7. TGI Legal Counsel Correspondence Denman Phase 4 May 24, 2019 8. Coastside Legal Response Denman P4 June 5, 2019 9. Coastside Response Protest Denman P4 May 29, 2019 10. Letter to Coastside on Bid Responsiveness from City Denman Phase 4 May 29, 2019 9 Attachment 1 RESOLUTION AUTHORIZING AWARD OF CONTRACT FOR THE PETALUMA RIVER FLOOD MANAGEMENT DENMAN REACH 4 PROJECT WHEREAS, City staff has prepared construction bid documents and advertised for construction of the Denman Reach Phase 4 Improvements Project, Project Number C16301722, ("the Project"); and WHEREAS, in accordance with the City of Petaluma Charter and Municipal Code, California Public Contract Code Section 20162 and other applicable law, City staff solicited bids for the Project; and WHEREAS, the Project was bid on April 25, 2019, and eight (8) bids were received and opened on May 13, 2019 in accordance with applicable law; and WHEREAS, the lowest responsive bid for the Base Bid and Bid Alternative 1 was submitted by Coastside Concrete and Construction, Inc. in the total amount of $1,338,520; and WHEREAS, staff recommends the construction contract be awarded for the Base Bid and Bid Alternative 1 for a total contract amount of $1,338,520; and WHEREAS, staff has determined that the Coastside Concrete and Construction, Inc. bid is responsive and satisfies the bidding requirements for the Project; and WHEREAS, staff has verified that Coastside Concrete and Construction, Inc., possesses a valid California Contractor's License, Class A, number 995338 that is acceptable for the Project; and WHEREAS, the project is budgeted adequately to cover the recommended construction contract award in the City's FY 17/18 and FY 18/19 CIP budget; and WHEREAS, the County of Sonoma has agreed to fund Bid Alternate 1, Item 9: Rip Rap ($107,825) for Corona Bridge abutment scour protection, and City Staff intends to work with the County of Sonoma to develop a cost sharing agreement for such funding; and WHEREAS, a Mitigated Negative Declaration was approved for the Project in accordance with the requirements of the California Environmental Quality Act ("CEQA") pursuant to Resolution #2019-003 N.C.S. adopted by the City Council on January 7, 2019; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby: 10 1. In accordance with the City of Petaluma Charter and Municipal Code, California Public Contract Code Section 20162 and other applicable law, waives any and all non- conformance in the bid of Coastside Concrete and Construction, Inc. for the Petaluma River Flood Management Denman Reach Phase 4 Project, Project Number C16301722, rejects the bid protest dated May 17, 2019 submitted by Team Ghilotti, Inc., the second lowest bidder, and finds the bid of $1,338,520 to be the lowest, responsive bid and further finds that Coastside Concrete and Construction, Inc. is the lowest responsible bidder. 2. Awards the contract for the Petaluma River Flood Management Denman Reach Phase 4 Project, Project Number C16301722 to Coastside Concrete and Construction, Inc. in the total amount of $1,338,520, the amount of the lowest responsive Base Bid and bid Alternate 1, conditioned on Coastside and Construction, Inc. timely executing the project contract and submitting to the City all required documents, including but not limited to, the contract, executed bonds, certificates of insurance, and endorsements, in accordance with the project bid documents. 3. Authorizes and directs the City Manager to execute the project contract on behalf of the City of Petaluma upon timely submission by Coastside Concrete and Construction, Inc. of the signed project contract and all other required documents, including but not limited to, executed bonds, certificates of insurance, and endorsements, in accordance with the project bid documents. 4. Approves the revised project budget of $2,765,825 and authorizes staff to develop an agreement with the County of Sonoma for funding of rip -rap installation at the Corona Road Bridge. 11 Attachment 2 PETALUMA RIVER FLOOD MANAGEMENT DENMAN REACH PHASE 4 PROJECT SITE PROJECT SITE C16301722 LOCATION MAP Date : January 7, 2019 City of Petaluma Public Works and Utilities Department 8 Attachment 3 _ Coastside Concrete & Construction Inc 5958 Petaluma Hill Rd Santa Rosa, Ca 95404 707-695-6022 Brett cell To whom it may concern, Coastside Concrete & Construction Inc in the apparent low bidder of the Deman Reach phase 4 Coastside has proform in the public works sector for over 10 years with over 30 years of experience in the private sector. Coastside assets to debt ratio is 16%. Coastside annual revenue is between 3-4 million per year. Coastside has performed millions of dollars worth of project for the City of Petaluma with no financial issues. As well as almost every City in Sonoma and Marin County. With no financial issues. Coastside will be performing all work except for the following. Coastside Sub contractors - Items 2 survey Cinquini & Passarino, Inc. 1360 North Dutton Avenue, Suite 150 Santa Rosa, California 9540 Project- City of Petaluma Slope repair City of Petaluma Denman Reach County of Marin Boyle creek Restoration 2614 Leslie road. (Property of mine I have been working with fish and game and LSA to install bridge and slope repair) Erica Ahmann Smithies installed temporary dam and installed flood gates. Reference Erica Ahmann Smithies former City of Petaluma engineer City of Saint Helena. ESmithies@cityofsthelena.org Sanjay Mishra former City of Petaluma engineer City of Napa Sl-,munu@gmail.com LSA Associates Gretchen Zantzinger Gretchen.Zantzinger@lsa.net Brett Sousa President 10 .�0 0 r 34. w w v 03 ti d -0 V 14- «i O U 0 4- 0Cd p - 3� s7 O O v ..OD O 0 a. o 40-4.1 O N V y V Y 0 0 Y 4-° O O O .� ":: 41 F ou O O O O p On , "0 A cn 'O w 10 0 0 3 � o O on C(S , 0 � O UC "C %+ y vOi 0 o a 0 0 r 0 O p 03n v d H o o� o o� A Q 03 � a > �° R 0 0 O 0 r. ,-" O U H am. © OQ O+ 0 N 4 d v .0 4 -ca H 9 O 0 0. Cd v o �+ En Y O ,rA t 0(/1 0 r.$ roe 0 cv r03 -03 tin • 2 y Or, O O 570 V O 0 D N0 O NCd CLi p. Y0 4.4 0 o �^ OL— ¢' '0 3 0 4�- a7 0 4-1 a7 .• 0 ++ ' 0 0v.—ca 0 -- 4- v a Q c ca o v O ` 0i � Q> � U "0 30 dt.�.0 i ' 0° m .+� G o s En 0 41 C 00 oE� .ct 4' a7 LIST OF MATERIAL SUPPLIERS AND MATERIAL GUARANTEE The bidder is required to name the make and supplier of the material'items listed below to be furnished under these specifications. The bidder shall name a manufacturer for each item and the supplier of the item if the supplier is not the manufacturer. The naming of more than one supplier for a single item or naming a supplier followed by the words "or equal" will not be acceptable. Substitution of any listed supplier following submission of this'form with the Bid shall only be permitted as authorized by the Engineer pursuant to Section 6.3 of the General Conditions. Failure to complete this form and submit it with the bid proposal may cause .the proposal to be rejected as being incomplete and not responsive to the solicitation: Item Supplier & Manufacturer Address 5.6m i4 c.L &t1-4cr,J % Co--�&Nb Po&L 6xjwr,, ZoC'L -,elp, 1, NuAft " kurS4, ?it,. -� M S U&-6, ► r4 t - Fi&rM I etr.� MATERIAL GUARANTEE In addition to completion of the list of material suppliers on the Material Suppliers form, the bidder may be required to furnish .prior to award of contract, a complete statement of the origin, composition and manufacturer of any or all materials to be used in the construction of the work, together with samples, which samples may be subjected to test, provided for in these specifications or in the Special Provisions to determine their quality and fitness for the work. END OF LIST OF MATERIAL SUPPLIERS AND MATERIAL GUARANTEE LIST OF MATERIAL SUPPLIERS & MATERIAL GUARANTEE March 2013 QUESTIONNAIRE AND FINANCIAL ASSURANCE STATEMENT The following statements as to experience and financial qualifications of the Bidder are submitted in conjunction with the proposal as a part thereof, and the truthfulness and accuracy of the information is guaranteed by the Bidder. The Bidder has been engaged in the contracting business under the present business for years. Experience in work of a nature similar to that covered in the proposal extends over a period of years. The Bidder, as a contractor, has never failed to satisfactorily complete a contract awarded to contractor, except as follows: List all claims and lawsuits presented or filed in the last five (5) years, regardless of the form, regarding any public works pro'ect: i The following contracts for work have been completed in the last three (3) years for the persons, firm or authority indicated and to whom reference is made: Type of Work -Size, Length and Year Contract Amount Location and For Whom Performed Cou••�of i1M.,nt Q�J.� Crtt�-i,�.�w. The Following complaints have been •made against the Bidder's contractor's license within the past ten (10) years: Date: i / Nature of Complaint /V/ 14 - QUESTIONNAIRE AND FINANCIAL ASSURANCE STATEMENT (699338) July 2,004 1 ENGINEERING CONTRACTOR 707i0.16T0U May 17, 2019 City of Petaluma Department of Public Works & Utilities Attn: Peggy Flynn, City Manager 11 English St. Petaluma, CA 94952 Attachment 4 Reference: Denman Reach Phase 4 Stream Enhancement and Public Access Project City Project Number C16301722 Subject: Protest of Bid Submitted by Coastside Concrete & Construction Dear Ms. Flynn, In accordance with the construction documents, this letter is to notify the City of Petaluma that we are protesting the apparent low bid of Coastside Concrete & Construction for the project referenced above. The Bid is Non -Responsive and must be Rejected At time of bid Coastside was aware they could not self -perform the survey portion of the work, (base bid item 2 and bid alternate 2) and that the amount of the work Coastside listed was over the one-half percent inark by almost three tunes the amount 1.49%, (Coastside base and alternate survey bid amounts $20,000.00 / Coastside total bid $1,338,522.47 = 1.49). By law, Coastside should have listed their survey subcontractor. By not listing any subcontractors at time of bid Coastside has obtained an unfair bidding advantage not given to other contractors. For these reasons, the City must deem Coastside's bid nonresponsive. Coastside admits it does not have an in-house registered surveyor. Coastside's letter of qualifications, turned in after the bid, states then will perform all work except survey. Hence, the required surveyor work, base bid item 2 and bid alternate 2, they could not do with the forces in house (self -performing) and it required listing a licensed surveyor as a subcontractor. No subcontractor for the survey work was listed. Coastside does not have the qualifications needed to perform the work. A license surveyor is required by the bid documents. Coastside failed to list any subcontractors with their proposal for the required survey work. A surveyor must be registered with the State of California - licensed. The bid form states that if no subcontractor is listed, the prime contractor is representing it is self -performing the work and is licensed and qualified to do the self -performed work. Here, that is not true on both accounts. One, Coastside admits it does not plan to self -perform by its subsequent letter of qualifications that it is subcontracting out the licensed survey work. Secondly, Coastside admits it is not qualified or licensed within its own forces to perforin that 2531 Petaluma Blvd South • Petaluma, CA 94952 • FAX: 707-763-8711 • www.TeamGhilotti.com STATE CONTRACTORS LICENSE 11895384 CLASS: A specified, licensed survey work. Therefore, its bid is non-responsive. Because Coastside did not list any subcontractors capable of performing the licensed surveyor work, the only manner in which Coastside's bid could have been responsive is if Coastside self -performed this work or the surveyor's work had a value not to exceed one-half of one percent. Coastside admits in its subsequent letter submitted within the allotted time frame to the City that they are not intending to self -perform this work and the value of the work is in excess of one-half of one percent therefore making Coastside's bid non-responsive In Valley Crest Landscape, Inc. v. City Council (1996) 41 CA 4 1 1432, 1438 the Court found a failure to adhere to the specified listing requirements to be material rendering the bid non- responsive: "Generally, cities, as well as other public entities, are required to put significant contracts out for competitive bidding and to award the contract to the lowest responsible bidder. (See, e.g., Pub. Contract Code, § 20162) A bidder is responsible if it can perform the contract as promised. (Taylor Bus Service, Inc. v. San Diego Bd. of Education, supra, 195 Cal.App.3d at p. 1341.) A bid is responsive if it promises to do what the bidding instructions require. (Ibid)... " " In enacting the Subletting and Subcontracting Fair Practices Act (the Act), the Legislature found the practices of bid shopping and bid peddling resulted in poor quality of materials and workmanship, deprived the public of the benefits of fair competition, and led to insolvencies, loss of wages, and other evils. (Pub. Contract Code, § 4101) Bid shopping occurs where the general contractor uses the lowest bid received to pressure other subcontractors to submit even lower bids. (Bay Cities Paving & Grading, Inc. v. Hensel Phelps Constr. Co. (1976) 56 Cal.App.3d 361 365 [128 Cal.Rntr. 632 .) Tl:e Act requires bidders for public contracts to list the names of all subcontractors who will perform work in an amount in excess of one-half of I percent of the prime contractor's bid. (Pub. Contract Code, § 4104, subd. (a).) The bidder must also set forth: "The portion of the work which will be done by each subcontractor under this act. The prime contractor shall list only one subcontractor.for each portion as is defined by the prime contractor in his or her bid. " (Pub. Contract Code, § 4104, subd. (b)) " The Court then ruled the awarded contract was void, and ordered it undone because the required subcontractor listing specifications were by definition, material, and failing to follow them, rendered the bid non-responsive. It that case, the bid limited subcontractors to 50% of the total, and NorthBay Construction listed subs totaling more than that percentage: This specification made listing the subcontractor percentages a material element of the bid. Since it was a material element of the bid, North Bay could not change its bid to correct the mistake in stating the percentages. North Bay's bid provided for more than 50 percent of the work to be done by subcontractors; therefore, it was nonresponsive to section 8-1 of the specifications. The City could not permit the mistake as to this material element of the bid to be corrected by purporting to "waive an irregularity. "Since North Bay's bid was nonresponsive, its contract is invalid. All other bidders recognized this material specification and bid call. All other bidders recognized that a surveyor had to be licensed and needed to be listed as a subcontractor in order to perform absent an in-house, licensed surveyor. All the survey bids were greater than 0.5% of Coastside's bid. Those bids are attached at these amounts: 12 Surveyor Amount % of Coastline's Bid: Cinquini & Passarino Inc. 27,260.00 2.04% BKF Engineers 26,550.00 1.98% Benchmark Engineering, Inc. 41,400.00 3.09% F3 Scanning Land Surveying 27,500.00 2.06% Note, we believe Coastside plans to use Cinquini Passarino, whose bid above is $27,260.00 or 2.04% of Coastside's bid. We listed BKF Engineers at $26,550.00 or 1.98% of our bid. Others had similar subcontractor listings for the survey line iterns required in the bid. Non -Responsive Letter of Qualifications — Missing Material Required Items Coastside's Questionnaire and Financial Assurance Statement as well as their letter of qualifications does not meet the requirements of the contact. Type of work -size; length, contract amounts, and location of work is not given in all listings. The qualifications needed to complete the scope of work for the Denman Reach Phase 4 Stream Enhancement project is extensive. The following are items of work that require specific qualifications: • Survey. A licensed surveyor is required. • Storm Water Pollution Prevention Plan and monitoring. Section 60 of the technical specification's states that more than one acre will be disturbed, this will require a licensed QSP and QSD. • Landscape, planting and seeding. • Irrigation System Design and Installation. • Tree removal. • 1 - Year Landscape Maintenance The lack of this detail shows the bid is not responsive, and bidder, not responsible since it has failed out the gate providing the required qualifications to do the work. It is noted, Coastside is a concrete contractor who is seeking to venture beyond its traditional "concrete only" scopes of work. Its lack of submitted qualifications reflect that it is not qualified, non -responsible and not responsive in its bid. Post Bid Change violating the Subcontractor Listing Lav and also Non-responsive Changes to bids after the opening is not allowed. Such let's one bidder have a competitive advantage over the others. Such let's one bidder change his bid after opening, creating an unequal bidding field. Our protest is also based on the requirements specified in the bid proposal documents "List of Subcontractors" and a violation of the Subletting and Subcontracting Fair Practices Act. The bid solicitation provides in part: `In accordance with the provisions of Section 4102 and 4108, inclusive, of the Government Code of the State of California, each bidder shall list below the name and location of place of business of each subcontractor who will perform a portion of the contract work in an amount in excess of one-half of one percent of the total contract price. In each such instance, the nature and extent of the work to be performed shall be described.' 13 `If a prime contractor fails to specify a subcontractor or if a prime specifies more than one subcontractor for the same portion of work to be performed under the contract in excess of one-half of one percent of the prime contractor's total bid, the prime 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. The subcontracting of work for which no subcontractors was designated in the original bid and which is in excess of one-half of one percent of the total contract price, will be allowed only with the written consent of the City.' By not listing any subcontractors Coastside gained the economic advantage of being able to negotiate with subcontractors after the bid. This is called "bid shopping" and the Legislature adopted the Listing Law to stop this practice, since it invites lowering of prices to get work after bid opening, and a reduction of quality by corner cutting. A public agency caimot adopt a policy or specification that permits bid shopping or circumvents the Listing Law, nor can here, a public agency award a contract to a bidder who is clearly bid shopping the licensed survey work after the fact to get the disappointed surveyor subcontractors, listed by the other primes, to bid post - bid to Coastside to get the work. The ability to modify and revise its listed subcontractors after the fact, after bid, in order to enjoy more favorable pricing circumvents the public bidding process and is in violation of the Subletting and Subcontracting Fair Practices Act. Bid protests assure that public owners are complying with public bidding laws and their purposes, which include fair, competitive bids and to eliminate favoritism, fraud and corruption in the awarding of public contracts (Public Contract Code 100) To achieve this, there must be transparency in the process. This is a material, not immaterial variance, and has prejudiced the other bidders. By not listing any subcontractors Coastside gained another unfair advantage. At bid time Coastside gained a competitive advantage of saving time for it to submit its bid that Team Ghilotti did not have. Coastside had a competitive advantage to reduce the amount of time required to complete its proposal. It ignored having to deal with sub bids until after bid. Also, Coastside gained a time advantage in locating and negotiating its subcontractor work, after bid, not before. Due to the omission of listing any subcontractors on the bid proposal submitted by Coastside, TGI respectfully requests that the City disqualify their bid as non-responsive and award the contract to Team Ghilotti, Inc. as the low responsive bidder for this project. Coastside's qualification statement admits it intended to subcontract out licensed surveyor, it has no licensed surveyor, a licensed surveyor is required on staff to self -perform, and by listing no surveyor Coastside represented and agreed it was "fully qualified to perform that portion of the work." But it was not, and Coastside admitted it was not when it later admitted it was not qualified to perform the survey work. That means its signature and representation that "he or she is fully qualified to perform that portion himself or herself, and that the prime contractor shall perforin that portion himself or herself' was untrue. That makes the bid non-responsive and bidder, non -responsible (a misrepresenting bidder is a non -responsible bidder). Team Ghilotti. Inc. is the lowest responsive and responsible bidder for the above -referenced project. It properly listed a licensed surveyor subcontractor. Team Ghilotti respectfully protests any award of this contract to Coastside because Coastside's bid is nonresponsive, and the failure to comply with the bidding requirements cannot be waived because it gave Coastside a competitive advantage. 14 Sincerely, J e Moreira General Manager Team Ghilotti, Inc. CC: Coastside Concrete & Construction Ghilotti Brothers McCullagh Ghilotti Construction Cats 4 U Park Contractors Hanford ARC 15 In accordance wsili (lic provisions of Section 4102 and 4108, inclumve, of the GovernivienT Code of the State off"afifonna, coach bidder shill list below the nanic and localion of place (it' business of each Subcontractor who Mh porforni a portion ofilse conitavi work in -,In aknwkini In excess. of oric-lialf of one pcvccns C$f the I«,tal C,_)njfaCt fefrjee In each such instince, the nature and cment of the %vorlk to be perfoin-red .01jil lie describe(] - if a priale Contractor fitih; to specify a 4ubcontricror or if a prime Contractor specifies more tharl not subconitaclor for the same portion Ofwork to be perfortned under the contract in excess of one-half of true percent of Ilse prime contractor's tool b4 the prime contractor agrceN that lie or she Is fully qiialifictl go perform cleat portion himNelfor herself, and that the prime contractor shall perform that portion himselfor hers'e1r. The subcontracting ot'work for which no subcontractor ,vas designated in the original bid and which is in excess ratone-half of otic pervent of the total contraus price, will be allowed only with the written consent of the Ctty Name Description of Work to he s of Address of Office, Performed (also show Bid Schedule Public WorkContractor Subcontractor Mill, or Shop Item Number) Registration Number LLAT OF 3k'N i N 4 W At -TOR, M 16 CINQUINI & PASSARM INC. JA BOUNDARY A 10POGRAPHIC A CONSIRUMION G SUBDIVISIONS LAND SURM ING P9588 Proposal for Construction Staking Denman Reach Phase 4 - City of Petaluma, California May 13, 2019 Cinquini & Passarino, Inc. is pleased to provide you with a proposal for Professional Land Surveying services for the Demnan Reach Phase 4 located in the City of Petaluma, California. We will provide the following Scope of Work based on approved Improvement Plans prepared by City of Petaluma, dated April 2019 and Addenda 1, 2, 3, and 4. ALL UTILI7')' STAh7A`G TO BE SET AT A .41AXlhftihf OF 50 -FOOT ON CENTER. ALL R011GH GRADE STAKING TO BE SET AT A MAXIMUM OF I00 -FOOT ON CEATTER. Limits of Work Staking - Includes control and calculations, and staking the limits of work at intervals of 100 feet. (2 move -ins) 2, Detention Basin Grade Staking - Includes control and calculations, and slope staking for detention ponds. (1 move -in) 3. Storm Drain Staking - Includes staking of storm drain main lines and outfall, (I move -in) 4. Finish Grade Staking for Spillway - Includes staking along one side of concrete spillway. (l move -in) 5. Finish Grade Staking for Quarry Fine Pathway - Includes staking along one side of pathway. (l move -in) 6, Corona Bridge Sediment Removal - Includes one set of slope staking for sediment removal. (1 move -in) 7. Preconstruction Survey — Corona — Includes a preconstruction survey of the Corona Road site for use with volunnetric survey. (I move -in) 8. Preconstruction Survey — Wetlands — Includes a preconstruclion survey of the Wetlands site for use with volunnetric survey. (1 move -in) 9. Post -construction Survey— Corona — Includes a post -construction survey of the Corona Road site and volume calculations. (1 move -in) 10. Post -construction Survey — Wetlands — Includes a post -construction survey of the Wetlands sites and volume calculations. (1 nnove-in) 11, Post -construction Survey — Detention Ponds — Includes a post -construction survey of the detention pond sites and volume calculations. (I move -in) The total hump sum COST for Items I throat -h II will be 527,260.00. 1360 No. Dutton Avenue, Suite 150 Santa Rosa. CA 95401 Phone (707) 542-6268 Fax (707) 542-2106 17 4— ------- A Bt,l NDAR� A ft Wi §q iK MAM A Fi\,', I R1 f 114 IN A 1',1RA, I RA ( 1l KI. - EXHIBIT C HOURLY FEE SCHEDULE MARC it LNIQ riI 2020 OFFICE AN.Q PROFESSIONAL Profes,sronat Land Surveyor 0 jt� �t Rmi\nm Ni) St I f f Professional Land Surveyor I H,U Rf SFAR� If & t 111:V1 t "IHIMS Principal Professional Land Survevoi SeFior ProfC00011rl LAIld SUrVeNIO? Professional Land Sunmfl S , urvea Technician UIS Analyst 050,00 per frow ';'250D(t per hour SI 91i.00 per hour Sl�S.00 Per hout $155-00 - S 17 5,0 per hour $115,00 - $ 155.00 per how $1X00 Pei, hour Word Processing, Clerical and Deliveries S 95.00 per hour FIELD CRENVS I M f q 4 t, b4 IM, f,e I I O VFrIlf I I S, I ("H11'Mt Nt, M11 F -MA 6" mA a ]*]At I Person Fickl Pam $IS500 per hour I Person G&S Party $21 cf.0t l I -let, hour 2 Person Field Parte $27iDl) per hour I If -I M R1 �1 i iYOI110 ,f PAR3'7 s Trft F&'t 1VVNM1V', I Pof-mi Held Pari v S3S5,(0 Pei hour 4 - Person Field Party 5445.00 per hour 111A Df W -WI, ( ONSIS1 (4 PAR EYUMII. 3 6 I AVt M] \ fIR c HAMIAN & 2 I i SUPPI -ENIENTAL ITEMS Outside Contracl Work cost plus 1 5'!.' ()vertime Work I 2 x base rate Ovct-Vii' Hours on Satuiday. all day on Sundays or I fohda), 1A x base crew rate Night Work (Rhifts sfarWng qf4w 4 Pill fw ht, fiAre 5 . 4,11) 1 010 additional over base rnes -(ravel Time for 2-Nian ('rm S1 15.00 per hour (bt, yond I hour of travel ousside an 8 hour w(ii-A-daJ GED0 Scan Equipment is su�iject Ro a S1.000,00 per day u.,a&�e i:har2c UAS Equipment subject to a $750A0 Pei day u.aue ebarge 4--- 1300 No. Dwon Avenkie, Sure M Sawa Hosa, CA 145401 Phone ; 7071542-62168 FaN 007 � 54'w -2i(16 W. m Proposal for Construction Staking Denman Reach Phase 4 May 13, 2019 Page 2 ALL PRICES ARE GOOD THROUGH FFAMIJARI' 28, 2017 AND SUBJECT TO CHANGE THEREAFTER. ALL REMAINDER OF CONTRACT WORK PERFORMED AFTER FEBRUARi' 28, 2017 WILL BE SUBJECT TO A 40/t, INCREASE. THISPRICE IS RASED Oil' 7'//E ASSUAIPTIOA' TI/AT RETEA'T/OA' HILL NOT BE IIELD. NOTE: AT NO COST TO OUR FIRM, OWNER WILL PROVIDE TWO (2) S'E7S OF PR/NTS OF immo1'L•AMNT PLANS'AND ALL SIIBSEQUL'NT REI'/S/ONS 7'HEREOI'. THE /AIPRONF_AfENT PLANS MUST ALSO BE PROI7DED TO OUR F1RA1 INA UTOCAD ".DIJ'G"FORAIAT. ANI'DRAWING ADJUSTAIENTREO IRFDDUETODISCREP;INCIES'BETiiT;ENHARDCOPI'PLANSAND D/GI7:1I. MEDIUM, WILL BE CONSIDERED ADDITIONAL SERVICES. IT /S ASSUAfED T/LIT T/IE OWNER WILL PROl'IDE SUR I Gr CONTROL THAT RELATES TO DL•SI G;Y, DR41FING:S, BOUNDAR I' L IVES, AND TOPOGRAPHIC FEATURES. This Scope of Work includes office calculations, statement letters, staking diagrams and meetings associated with the completion of the project as outlined. All offsets shall be in compliance with the Contractor's request, prior to any requests for staking. This Scope of Work provides for one ( I ) set of stakes and one (1) move -in per item, unless otherwise stated, ADDITIONAL MOVE -/NS WILL BEB/LLED AS ADD/T/ONAL SERi %CES. Please be advised that this Scope of Work docs not include staking for irrigation, landscaping, County or City fees, or any other item not listed in this Scope o1'Work, Any additional services above and beyond this Scope of Work will be provided upon authorized request, and will be billed to the project in accordance with our hourly fee schedule. Our insurance coverage is as follows: GENERAL. LIABILITY $2,000,000. AUTO LIABILITY $1,000,000. WORKER'S COMPENSATION $1,000,000. PROFESSIONAL LIABILITY $3,000,000. Cinquini & Passarino, Ine.'s field surveyors are members ofthe Operating Engineers Local Union No. 3. Cinquini & Passarilw, Inc. is registered with the CA Department of Industrial Relations, No, 1000003267 Thank you for the opportunity to submit our proposal for this project, and please call me at (707) 542-6266 if you have any questions or concerns. Very truly yours, CINQJUIINi & PASSARiNO, INC. Anthony . Cingl irii, P.L.S. 8614 P rincip., 19 cy I K SEARSID: + ENGINEERS SURVEYORS . PLA140ERS May 8, 2019 Team Ghilott: Inc 2531 Petaluma Bfvd, S. Petaluma, CA 94952 Attn: Robert Lee peiaun-lcr River Flood Reach Ffi,; .e SKF Engineers is pleasc^d to offer U'lis Atop sal for Staking s&rvicPs associated vcilh the above referenced projer',, Our services are predicated on a review Of tel(' prcjc-rt vians piepared by Ciiy ci� Petaluma, daled Apri' 2019 Thiess services incWe and are limited to thii� foNcv,,mg: I Peifi--btrn fie'ld vvcrk to vFf&)1 loc�-Non rot project SW-vPy contral pconlis and e!htabiisn srlili Cor-[Irf-q am necessary 2. Set up to two (2) construction benchmarks at strategic locatjor-s if requested. Rough Grade Staking - Includes one set Of for irclucih giadirn�i of tv,,,,D nirvi,, ponds, This iv.oiH include sloe stakes around the per-on-reter ()f the pc)nrj 4, Concrete Path and Spiliway - Includes oric, set of stakes to line and cirade For ronstructiorr of° concrete path and spiJiwiat South side of rionds. Si:ciirn Draw Ouflets - Includes. one Set of stake' to line and grade for con structiian of Storm DrE'ln Outlet pipes in ponds and at niver 6, Finish Grade for iop of Pand - Includes, Cate* son -i of si"ake�, for ccqi,-1ruc1lon of c'maver path arC'Undi penmetp-1 Of tilojo perndti 7 Wetland deiine?ljon - incoude,, one set of -rakes, to line ind gradE for constriscticin of two vviefland areas 8 Pre-Construcuon Surface kloljoer - Prenlairp a sjd;-cc- niodel of ahe, arpa at the Deter"Iticn Basins and the two Wctland area,,. 9 Dost -Construction SUnface Model - Prepare a surface rnodp� of the area at thp Det'en'tion Basins and the t4vo Wetial-id areas i--aICLJate 'i difference fron) Pre (0 P051 on each surface, The total fee to pficivide the above services ll'o`dr be a I'LiTTICP -SILF'r Of $ 26,550W and irii l ides up to 10 field ',,15its The fees are due upon presentation of an mvoice, 200 Fourth Street, Suite 300. Santa Rosa, CA S5401 7r)7 583 8KI) t. 20 I of 3 PFi1�`�GI/yF��' LU BENCHMARK ENGINEERING, CIML m E . t E.. `SEt-��1999 Date of Estimate; 5/9/2019 PROJECT: Petaluma River Flood (Management — Denman Reach Phase 4 LOCATION: Petaluma, Ca Benchmark Engineering, Inc. (D.I.R. No. 1000021617) is pleased to provide this proposal for one set of construction stakes for the items listed below based on the Civil plans by City of Petaluma dated 4/1/2019: PRE -CONSTRUCTION SURVEY ® Provide ground surface topography of entire site to use as a base for volume calcs. Basin area and Wetlands area. ® Provide AutoCAD drawings. LIMIT OF GRADING ® Stakes along limit of grading. ROUGH GRADE SLOPE STAKES ® Slope stakes on 50' intervals for rough grading. Basin area and wetlands area. STORM DRAIN OUTFALL ® Stakes at ends of pipes. FINISH GRADE SPILLWAY ® Finish grade stakes for spillway on 25' intervals. FINISH GRADE PATHWAY ® Finish grade stakes for pathway on 50' intervals. FINE GRADE SLOPE STAKES ® Finish grade slope stakes on 50' intervals. The surveying services for Petaluma River Flood Management — Denman Reach Phase 4 will be provided for $24,200 (Twenty -Four Thousand Two Hundred Dollars). 91517 th Street, Modesto California 95354 - (209) 548-9300 • FAX (209) 548-9305 507 J Street Los Banos, CA 93635 • (209) 737-0900 21 2 of 3 P�ENGI/yF� w BENCHMARK ENGINEERING, INC ENG _ER NG ; , SLJR\U NG »W SFT X1999 ADD ALTERNATE#1 (CORONA BRIDGE)............................................$17,200 ROUGH GRADE SLOPE STAKES Is Slope stakes on 50' intervals for rough grading. Basin area and wetlands area. FINE GRADE SLOPE STAKES ® Finish grade slope stakes on 50' intervals. ADD ITEMS: AS-BUILTS..................................... T&M BASED ON CURRENT RATE SCHEDULE ® As-Builts of each phase of excavation and construction for volume purposes. Provide AutoCAD file and PDF showing volume numbers of constructed items. RATEs: ONE MAN CREW: $145/HR TWO MAN CREW: $250/HR SURVEY MANAGER: $135/HR ADDITIONAL NOTES The proposed services will be provided under the assumption that boundary corners, or other suitable horizontal controls, have been established for this project and are available for use by Benchmark Engineering, Inc. Please sign the below notice to proceed to allow Benchmark Engineering to proceed with staking services prior to contract. If you have any questions or concerns with the above items, please feel free to contact Jeff Cissell at 209-548-9300 ext. 315 Thank you, Benchmark Engineering ,e7� r,i1iJ&/.l Jeff Cissell Survey Manager 91517 th Street, Modesto California 95354 - (209) 548-9300 - FAX (209) 548-9305 507 J Street Los Banos, CA 93635 - (209) 737-0900 22 3 of 3 P��ENG►ryF BENCHMARK !' EE' NG : LAND SUR\U NG SFT �=199`3`• NOTICE TO PROCEED Project: Petaluma River Flood Management — Denman Reach Phase 4 Company Name: Contact: Phone & Fax Number: P: F -- Authorizing -Authorizing Signature: Project Owner Name: 915 1711' Street, Modesto California 95354 • (209) 548-9300 • FAX (209) 548-9305 507 J Street Los Banos, CA 93635 • (209) 737-0900 23 May 13, 2019 REV01 NC324 Petaluma River Flood Management Denman Reach Phase 4 Petaluma, CA Construction Staking Proposal Scope of work: 1) Project Coordination/Mobilization: 2) Project Control: Verify existing control and set additional control as required. 3) Limits of Work/ESA Fence : Provide stakes or marks at all call out points. 4) Rough Grade: Provide slope stakes at 50ft intervals. 5) Out Fall Pipes: Provide offset stakes at 50ft intervals. 6) Rip Rap Limits: Provide offset stakes at all angle points. 7) Spillways: Provide offset stakes at each end and at each grade break. 8) Finish Grade Paths: Provide offset stakes at 50ftitnervals tangent, 25ft intervals curves. Total Base Bid = $16,500.00 Total Alternate 1 = $2,500.00 Price based on allotted number of move -Ins for the completion of the work as outlined above to not exceed 12 Pre and Post Construction Survey for Base Bid = $5,000.00 Pre and Post Construction Survey for Alternate 1 = $3,500.00 Conditions: 1. F3 & Associates, Inc. provides a professional service, requiring a professional service agreement, 2. F3 & Associates, Inc. requires that no retention be withheld. 3. F3 & Associates, Inc. requires that all invoices (including extra work) will net 30 days paid, fi•om date of billing. 4. F3 &Associates, Inc. requ��EOlncteropYft)" �,n��vUbb Faen��ev0�v,�ija 1 _0295 701 (East H/ Street, Benicia, CA 94510 Estimator: Gene Feickert, Gfeickert@f3-inC.com 24 Cous(side Cmicrew & construction Inc Vld ��Jj ji:'! Rif IQ Ali m 12 11% 1--k I , i it I it 1 4 ;w 7 '— , Cc A, - A-, 0 . W; m FMM 4 1: 1 ilk not, aw 1 it M.f a I I., A ."'.1'. illi pit :'! . I ' , W J� 1 it, id, 1-1 a I P i"I; p -t �4— A 1 A i::.;. I mu ,._ ud n w . 41 %mf u i Ii w w T v 10 N v PON 0 no wa 0 0 AJ c 10 I 25 26 Attachment 5 Coastside Concrete and Construction, Inc. 5958 Petaluma Hill Rd �'Dast'/d►® Santa Rosa, CA 95404 i07.695b022 To Ms. Peggy Flynn, City Manager 11 English St, Petaluma, CA 94952 Reference: Denman Reach Phase 4 Stream Bed Enhancement and Public Access Project City project no C16301722 Coastside Concrete & Construction Inc. is the lowest responsive bidder for the Denman Reach phase 4 project. Team Ghilotti has protested Coastside Concrete & Construction Inc. on May 17, 2019 and many other projects previously. The assertions made by Team Ghilotti have no grounds and based on their false assumptions to create confusion, prolong and derail the bidding process. Please refer to Public Contract code Chapter 4 (section 4100-4114). Quoted below: CHAPTER 4. Subletting and Subcontracting (4100 - 4114] ( Chapter 4 added by Stats. 1986, Ch. 195, Sec. 42.1. ) 4104. (a) (1) The name, the location of the place of business, the California contractor license number, and public works contractor registration number issued pursuant to Section 1725.5 of the Labor Code of 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 or, in the case of bids or offers for the construction of streets or highways, including bridges, in excess of one-half of 1 percent of the prime contractor's total bid or ten thousand dollars ($10.000). whichever is greater. Team Ghilotti assumes and accusing Coastside of not being able to perform the Item 2 of the Base bid and Alt Bid-"Survey/Stakeout". Coastside is fully capable of performing the Survey/Stakeout work in-house and has employed Licensed Surveyor to complete surveying tasks in various projects previously and will be completing most of the surveying task / field work in house for this project. As it is clear from the public contract code mentioned above Coastside is not required to provide the name of a sub -contractor for Surveying work. Coastside Concrete and Construction, Inc. _ 5958 Petaluma Hill Rd Santa Rosa, CA 95404 o.ass.soia .J Coastside submitted the "Statement of Qualification" document and clarified that Coastside may use the services of Cinquini & Passarino to complete a portion of the Survey work i.e. data verification and review of the field work as Cinquini & Passarino is the surveyor of record for the Denman Reach Phase 4 project. The total cost of this work is expected to be way less than the requirements spelled out in the quoted public contract code requirements above. As mentioned above Coastside Concrete & Construction Inc. will be performing most of the Surveying and Stakeout work in- house. 3. Team Ghilotti's assertion that Coastside is a "Concrete only Contractor" is laughable and baseless and such accusations by Team Ghilltio shows their lack of knowledge and arrogance towards Coastside Concrete & Construction Inc. Coastside Concrete & Construction has multiple California State Contractors licenses i.e. A- general engineering, B — General Building, and C-8 Concrete licenses. Team Ghilotti only has an A- General Engineering License. Coastside Concrete & Construction has more than 3S years in business and has the experience and qualifications to perform the work. Coastside Concrete has no history of involved in a claim and lawsuit in the company's last 3S years of existence. 4. Team Ghilotti's bidding practices are very concerning which is evident from their bidding $ amounts for the Item # 3, 12, 13, 14 and 1S of the Alternative 1 Bid. In conclusion, Coastside Concrete & Construction Inc. reiterates that, we are the lowest responsive bidder and we have fulfilled all the contract document requirements are fully qualified to perform all the work and thus Denman Reach Phase 4 contract should be awarded to us. If you have any questions and need any further clarifications, please do not hesitate to contact me. Sincerely, Brett Sousa President Cell :707 69S 6022 Attachment 6 � l - ENOINEENINO ' CONTRACTOR firM'_VIM May 21, 2019 City of Petaluma Department of Public Works & Utilities Attn: Peggy Flynn, City Manager I 1 English St, Petaluma, CA 94952 Reference: Denman Reach Phase 4 Stream Enhancement and Public Access Project City Project Number C 16301722 Subject: Response To Coastside Letter Received May 20, 2019. Dear Ms. Flynn, In response to Coastside's response to Team Ghilotti' s bid protest we wish to make the following points; I . Coastside has failed to show that it did not intend to subcontract the surveying, since Coastside stated in its Qualification letter that it did NOT intend to self -perform the licensed survey work. And listed Cinquini Passarino as their subcontractor for survey. As previously presented, all surveyors who submitted sub bids were greater than 0.5% of the Coastside low bid. Coastside therefore needed to list that sub and violated the subcontractor listing law by not doing so. 2. Coastside has failed to show who the outside surveyor is who it represented it was going to use in its response letter. Therefore, its response fails to address the issue raised in the protest and is suspect. 3. In Coastside's response, Coastside contradicts itself, that instead, and contrary to its Qualifications letter, it intends to self -perform the licensed surveyor work. This is the opposite of what its Qualification letter represented. Is this latest change a way to circumvent their non-responsive bid? 4. Why have the names and licenses of the in-house surveyor not been identified? TGI's protests centers around the fact that by not listing a subcontractor Coastside enjoyed a competitive advantage of negotiating with subcontractors after the bid, as it stands now Coastside is still enjoying this competitive advantage. These points show Coastside's bid was not complete therefore their bid was non-responsive and non -responsible. A bidder is responsible if it can perform the contract as promised. A bid is responsive if it promises to do what the bidding instruction require. Team Ghilotti. Inc. is the lowest responsive and responsible bidder for the above - referenced project. It properly listed a licensed surveyor subcontractor. Team Ghilotti respectfully protests any award of this contract to Coastside because Coastside's bid is nonresponsive, and the failure to comply with the bidding requirements cannot be waived because it gave Coastside a competitive advantage. Sincerely, { e Moreira General Manager Team Ghilotti, Inc. CC: Coastside Concrete & Construction Ghilotti Brothers McCullagh Ghilotti Construction Cats 4 U Park Contractors Hanford ARC 2531 Petaluma Blvd South • Petaluma, CA 94952 • FAX: 707-763-8711 6 xv%vw.TeamGhilotti.coin STATE CONTRACTORS LICENSE #895384 CLASS: A 27 LAW OFFICES OF MCNEIL, SILVEIRA, BICE & WILEY PATRICK J. MCNEIL AN ASSOCIATION INCLUDING PROFESSIONAL CORPORATIONS A PROFESSIONAL CORPORATION 55 PROFESSIONAL CENTER PARKWAY. SUITE A MARK J. RICE SAN RAFAEL, CALIFORNIA 94903 A PROFESSIONAL CORPORATION T-(415) 472-3434 F-(415) 472-1298 NEIL W. WILEY WWW.MSRWLAW.COM May 24, 2019 City of Petaluma Department of Public Works & Utilities Attn: Peggy Flynn, City Manager 11 English Street Petaluma, CA 94952 Attachment 7 RONALD A. SILVEIRA 1948-2000 Reference: Denman Reach Phase 4 Stream Enhancement and Public Access Project City Project Number C16301722 Subject: Response to Coastside Letter Received Mav 20, 2019 — LeLyal Analysis Dear Ms. Flynn, We are legal counsel to Team Ghilotti, Inc. ("TGI") who has properly protested the apparent low bid of Coastside, as non-responsive. In addition to the points made in TGI's protest, the interpretation to the specifications given by Coastside — that it can add unlisted subs after bid even if more than 0.5% of Coastside's bid — is illegal. That illegality is on the face of the bid and again renders the Coastside bid, non-responsive. Under Section 5.2 of the Bidder's Instructions, which are part of the contract, it says: "The Bid must set forth the name and location of the place of business of each subcontractor who will perform work or labor or render service to the prime contractor in or about the construction of the WORK, 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 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 or, in the case of bids or offers for the construction of streets and highways, including bridges, in excess of one-half of 1 percent of the prime contractor's total bid or ten thousand dollars ($10,000), whichever is greater." This language is expressly required by Statute on all Public Works as part of the Subcontractor Listing Law, at Public Contract Code Section 4100 and following. See Section 4104 making this clause of the bid instructions, mandatory: Any officer, department, board, or commission taking bids for the construction of any public work or improvement shall provide in the specifications prepared for the work or improvement or in the general conditions under which bids will be received for the doing of the work incident to the public 28 LAW OFFICES OF MGNEIL, SILVEIAA, BIGE 8c WILEY work or improvement that any person making a bid or offer to perform the work, shall, in his or her bid or offer, set forth: (a) (1) The name, the location of the place of business, the California contractor license number, and public works contractor registration number issued pursuant to Section 1725.5 of the Labor Code of 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 or, in the case of bids or offers for the construction of streets or hiRhways, including brides, in excess of one-half of 1 percent of the prime contractor's total bid or ten thousand dollars ($10,000), whichever is greater. (2) An inadvertent error in listing the California contractor license number or public works contractor registration number provided pursuant to paragraph (1) shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive if the corrected contractor's license number is submitted to the public entity by the prime contractor within 24 hours after the bid opening and provided the corrected contractor's license number corresponds to the submitted name and location for that subcontractor. (3) (A) Subject to subparagraph (B), any information requested by the officer, department, board, or commission concerning any subcontractor who the prime contractor is required to list under this subdivision, other than the subcontractor's name, location of business, the California contractor license number, and the public works contractor registration number, may be submitted by the prime contractor up to 24 hours after the deadline established by the officer, department, board, or commission for receipt of bids by prime contractors. (B) A state or local agency may implement subparagraph (A) at its option. (b) The portion of the work that will be done by each subcontractor under this act. The prime contractor shall list only one subcontractor for each portion as is defined by the prime contractor in his or her bid. Under Section 17 of the Bidder's Instructions, the lowest responsive bid from a responsible bidder receives the award, but only if that bid complied fully with the bidder's instructions to be considered responsive. Here, Coastside's bid was not responsive because it intended to subcontract out the licensed survey work, and all the survey bids equal more than 0.5% of Coastside's bid. Therefore, by the bid instructions and Section 4104 of the Public Contract Code, a licensed surveyor needed to be listed, and was not. Coastside's Qualifications letter post bid stated it did not intend to self -perform the licensed survey work but subcontract it out. That statement is an admission that the bid was non-responsive. In response to the bid protest, Coastside reversed field and now claims it has in house licensed surveyors who will carry out the licensed survey work. It cannot do that after representing to the City it was not self -performing but subcontracting out the licensed survey work. When a bidder says two opposite things 29 LAW OFFICES OF MCNEIL, SILVEIRA, MICE & WILEY are true, one is not true, and that makes the bid non-responsive, and bidder, non -responsible, for not telling the truth in one or the other instance about its singular bid. Also, Coastside never provided the names and license numbers of the alleged employees who are qualified to do the specified licensed survey work. This again makes their response to the bid protest, inadequate to overcome the grounds of protest. As noted in the protest, a failure to list a sub where required to list a sub, or not follow listing instructions, is material, cannot be waived by the agency as a minor irregularity, and renders the bid non- responsive and only properly rejected. In Valley Crest Landscape, Inc. v. City Council (1996) 41 CA 4th 1432, 1438 the Court found a failure to adhere to the specified listing requirements to be material rendering the bid non-responsive: "Generally, cities, as well as other public entities, are required to put significant contracts out for competitive bidding and to award the contract to the lowest responsible bidder. (See, e.g., Pub. Contract Code, § 20162) A bidder is responsible if it can perform the contract as promised. (Taylor Bus Service, Inc. v. San Diego Bd. of Education, supra, 195 Cal.App.3d atp. 1341.) ,4 bid is responsive if itpromises to do what the bidding instructions require. (Ibid) ... " "In enacting the Subletting and Subcontracting Fair Practices Act (the Act), the Legislature found the practices of bid shopping and bid peddling resulted in poor quality of materials and workmanship, deprived the public of the benefits of fair competition, and led to insolvencies, loss of wages, and other evils. (Pub. Contract Code, § 4101.) Bid shopping occurs where the general contractor uses the lowest bid received to pressure other subcontractors to submit even lower bids. (Bay Cities Paving & Grading, Inc. v. Hensel Phelps Constr. Co. (19 76) 56 Cal.App.3d 361, 365 [128 Cal. Rptr. 632J.) The Act requires bidders for public contracts to list the names of all subcontractors who will perform work in an amount in excess of one-half of 1 percent of the prime contractor's bid. (Pub. Contract Code, § 4104, subd. (a).) The bidder must also set forth: "The portion of the work which will be done by each subcontractor under this act. The prime contractor shall list only one subcontractor for each portion as is defined by the prime contractor in his or her bid. " (Pub. Contract Code, § 4104, subd. (b).) " The Court in Valley Crest then ruled the awarded contract was void, and ordered it undone because the required subcontractor listing specifications were by definition, material, and failing to follow them, rendered the bid non-responsive. It that case, the bid limited subcontractors to 50% of the total, and North Bay Construction listed subs totaling more than that percentage: This specification made listing the subcontractor percentages a material element of the bid. Since it was a material element of the bid, North Bay could not change its bid to correct the mistake in stating the percentages. North Bay's bid provided for more than 50 percent of the work to be done by subcontractors; therefore, it was nonresponsive to section 8-1 of the specifications. The City could not permit the mistake as to this material element of the bid to be corrected by purporting to "waive an irregularity. "Since North Bay's bid was nonresponsive, its contract is invalid. In the Statement of Qualification Form as part of the bid instructions, the low bidder is to submit qualifications and submit the qualifications of any subcontractor it intends to use: The following are minimum requirements for the Bidder to be found responsible to perform the Work. Bidder's compliance with the minimum qualification requirements will be measured by the experience 3 30 LAW OFFICES OF MCNEIL, SILVEII3A, RICE & WILEY of the supervisory personnel who will have responsible charge of the various major components of the Work. If Bidder subcontracts portions of the Work, Citv, in its determination of whether the minimum qualification requirements have been met, will consider the qualifications of the Subcontractor's supervisory personnel. Incorrectly, Coastside apparently misread this 24-hour post -opening Qualifications letter as a "second bite at the apple" to add a subcontractor that by Section 4104 and the bid instructions, that it was required to list in its bid — the licensed surveying firm. This language quoted and underlined below is not for that purpose, nor can it be interpreted that way, as such would render the bidder's instructions in violation of law. All that section means is that if the City is not satisfied with the qualifications of the supervisory personnel of the Prime Contractor, as too green or otherwise, the City may consider the experience and qualifications of the Subcontractor's supervisory personnel, in terms of qualifications overall. It does not mean the Qualifications Letter is an opportunity to add non -listed subcontractors who should have been listed. On the Subcontractor Listing form of the bid instructions, required by Public Contract Code Section 4104, the following sentence appears that is not within the language of the statute: "The subcontracting of work for which no subcontractor was designated in the original bid and which is in excess of one-half of one percent of the total contract price, will be allowed only with the written consent of the Citv." Under Valley Crest quoted above, that sentence cannot be interpreted to allow post -bid opening adding of subcontractors who by law should have been listed. It can only be interpreted as giving the City those powers of written consent to later accept a non -listed subcontractor, that the Act expressly permits the City to exercise. That is, the City cannot by this language expand its consent rights, and the language as written does not grant that right, but requires any later City consent to conform to law. Under the Bay Cities case, a disappointed bidder has standing to challenge a violation of the listing law at bid. In fact, in that case the prime contractor is subject to a 10% penalty under Section 4111, as recited in Section 4106 of the Public Contract Code: 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 shall 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 subiect to the penalties named in Section 4111. Under Public Contract Code Section 4109, the only instance that the public agency may agree to permit a later subcontract to a self -performing prime contractor — one who did not list a subcontractor for a bid item, so not a Section 4107 substitution — is in case of public emergency, on agency consent: 31 LAW OFFICES OF MGNEIL, SILVEIRA, RICE & WILEY Subletting or subcontracting of any portion of the work in excess of one-half of I percent of the prime contractor's total bid as to which no subcontractor was designated in the original bid shall only be permitted in cases of public emeraencv or necessity, and then only after a finding reduced to writing as a public record of the awarding authority_ setting forth the facts constituting the emergency or necessity. There is no possible "public emergency or necessity" here whereby the City could make a formal finding that a public emergency or necessity requires that that Coastside be permitted to alter its non- responsive bid after the fact to add a subcontractor, after bid opening. There is no public emergency or necessity that Coastside be awarded the contract. There is a public policy that Coastside not be awarded the contract, to avoid the City violating the Listing Law along with the apparent low bidder. More generally, there is a clear public policy that the contract and bid solicitation be interpreted in accordance with the Subcontractor Listing Law, and that a bidder violating those terms and Act may not be awarded the contract. In 1963 the Legislature enacted section 4101 of the Fair Practices Act, which provides, "The Legislature finds that the practices of bid shopping and bid peddling in connection with the construction, alteration, and repair of public improvements often result in poor quality of material and workmanship to the detriment of the public, deprive the public of the full benefits of fair competition among prime contractors and subcontractors, and lead to insolvencies, loss of wages to employees, and other evils." The language of the Subcontractor Listing form therefore, to harmonize with law and the balance of the bidder's instructions that the Subcontractor Listing Law must be complied with, must be interpreted lawfully, to mean that the City permission to later add an unlisted subcontractor is limited to those instances permitted in the Act. Under Valley Crest, and Sections 4109, 4106 and 4104 just quoted, that language does not permit a local agency to create new exceptions to the statutory scheme, or permit a bid shopping opportunity for a low bidder after bid, in violation of the public policy announced by the Legislature in enacting the Act. Under Valley Crest, there is no choice here but to reject Coastside's non-responsive bid. For each of these reasons and those set forth in the bid protest of TGI and TGI's rebuttal to the Coastside response, Coastside's bid is non-responsive. The irregularity is material, may not be waived, and requires rejection of its bid. Any other result violates the Subcontractor Listing Law. Si cerely, Mark J. Ri , on behalf of Team Ghilotti, Inc. MJR/nv cc: Coastside Concrete & Construction Ghilotti Brothers McCullagh Ghilotti Construction Cats 4 U Park Contractors Hanford ARC 32 SAN FRANCISCO OFFICE 351 CALIFORNIA STREET, 7TH FLOOR SAN FRANCISCO, CALIFORNIA 94104 TELEPHONE (415) 362-3435 JAET & JA ET ATTORNEYS AT LAW 1016 LINCOLN AVENUE SAN RAFAEL, CALIFORNIA 94901 TELEPHONE: (415) 455-1010 FACSIMILE: (415) 455-1050 June 5, 2019 Sent Via Facsimile n07-778-44197 & U.S. Mail Attn: Peggy Flynn, City Manager City of Petaluma Department of Public Works & Utilities 11 English Street Petaluma, CA 94952 Attachment 8 SAN CLEMENTE OFFICE 105 AVENIDA DE F_STRF.LLA, SUITE 28 SAN CLEMENT; , CA LIFORNIA 92672 TELEPHONE (949) 366-6010 FACSIMILE: (949) 366-6262 Re: Response of Coastside Concrete and Construction, Inc, to Bid Protest of Team Ghilotti Denman Reach Phase 4 Stream Enhancement and Public Access Project City Project No, C 15301722 Dear Ms. Flynn: The undersigned is construction counsel retained by Coastside Concrete and Construction, Inc. in connection with the protest submitted by Team Ghilotti. As you are aware, my client was the low bidder on this project. Team Ghilotti, through its attorney Mark Rice, filed a written protest to the Award, and the Award was then made to Team Ghilotti. The basis of the Team Ghilotti bid protest was that Coastside failed to list its survey subcontractor. However, taking a closer look at the bid documents reveals the following. The City form entitled "List of Subcontractors" cites the wrong code sections (deleted in 1963) in connection with the listing requirements. It references "Section 4102 and 4108, inclusive, of the Government Code of the State of California" and then sets forth the one half of 1%/$l 0,000 requirement that is actually cited in Public Contract Code section 4104(a)(1). In addition to that incorrect code reference and requirement which does not exist (as there are no current sections 4102 and 4108 under the Government Code) it is clear that the actual applicable PCC section 4104(a)(1) does not require the listing of a licensed California professional, such as a land surveyor. A careful review of this code section refers in the second line to "each subcontractor who will perform work or labor or render service"; and in the third line to "a subcontractor licensed by the State of California". Also, as referenced in the fourth line, it is with respect to a subcontractor who "specially fabricates and installs a portion of the work or improvement according to the detailed drawings contained in the plans and specifications". Clearly, a licensed surveyor is not a subcontractor. It is more akin to any other design type professional such as an architect or an engineer. None of them are considered to be subcontractors. Peggy Flynn, City Manager City of Petaluma June 5, 2019 Page 2 Thus, the bid documents are patently incorrect and defective, not only with respect to the reference to the wrong code sections, but also to the applicability to a licensed California professional such as a surveyor. Note that land surveyor and civil engineer requirements are detailed in California Business and Professions Code, Chapter 15, Articles 1-8, sections 8700- 8805. The bid documents are also deficient in a second respect. As stated on page two of the bid form "the award of the contract shall be awarded to the lowest price of the total Base Bid nlus Bid Alternate 1". However, Alternate 1 was not a smell alternate in a monetary sense, as were bid alternates 2 and 3. Looking at the Bid submitted by my client, the total Base Bid was for $792,259.10 and Bid Alternate 1 was for an additional $546,263.37. However, Public Contract Code section 10126 explicitly provides that although alternates and deletions to the base bid are of course acceptable, the following requirements need to be met: "(a) Estimates are made for each contingency and, in the aggregate, the alternates do not exceed 10% of the estimated cost for the project." Clearly with regard to the subject Project, Bid Alternate 1 grossly exceeded this 10% requirement. Thus, the bid documents are significantly defective and should the contract not be awarded to the low bidder Coastside Concrete and Construction, Inc., the bids should all be rejected and the matter rebid due to these fatal flaws in the bid documents. My client has successfully completed multiple projects previously for the City of Petaluma. It stands very willing and able to perform the subject work. Its bid is significantly lower than Team Ghilotti's. My client intends to pursue this matter further and, if necessary, litigate in state court should its low responsive bid continue to be rejected. Sincerely, P11ILLIP�X lAItE`I' PAJ: dda Cc: Mark Rice, Esq. [Sent Via Email (markjrice@msrwlaw.com)& U.S. Mail] Brett Sousa, Coastside Concrete and Construction, Inc. Robert Jaret, Esq. Attachment 9 ( cr:a5t�srfe ("011creferam (;on h actioly hw, -T 9 F fill M, Saidv Ros;J. GA 95404 To Date: DS -29-2019 Ms. Peggy rlyml, City Manager 11 English St, Petaluma,,CA 94952 Reference: Denman Reach Phase 4 Stream Bed Enhancement and Public Access Project City project no 016301722 ON May 14th, 2019 Coastside received.a call fi-om Iden Eichstaedt (City of PLtaluma•-Public Works Department) informing Coastside of being the apparent low bidder. Also during that .conversation Ken asked why we didn't list any subs in the laid for -ms. I confirmed to Ken that Coastside will be performing all work in-house and any subletting work is expected to fall .below the "0.5% of the bid ainount,or $10;000 whichever is greater" per the limits specified under public contract code. Please refer to the, public contract code quoted below: CHAPTER 4. Subletting and Subcontracting [4100.- 4114.1 (Chapter 4 added by Stats. 1986, Ch, 195, Sec. 42.1.) 4104. fa) (1) The name, the location ofthe place of business, the California contractor license number, and.. public works contractor registration number issued pursuant to Section 1725.5 of the Labor Code of 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, wider subcontract to the prime contractor, specially fabricates and installs a p.ortion 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 theprime contractor's total bid or, in the case of bids or offers for the construction of streets or highways, including bridges, in excess .of one -Half of 1 percent of the prime contractor's total bid or ten thousand dollars 010.0001, whichever is greater. During the discussion on May 14th, 2019 Ken also requested Coastside to add the subcontractors names as part of Statement of Qualification even if there subcontract amount fell below the "0.5% of the bid amount or $10,000 whichever is greater" per the limits specified under- public contract code. Per the request from lCity of Petaluma Public Works Department a simple clarification was made by Coastside on May 1411, 2019- Letter "Statement of Qualification" which stated that part of the surveying/stakeout bid item, # 2 will be performed by a sub -contractor. 33 Go"Istside Ce,;acrele and ("ofish;clion, Mc. 107.695 f022 Coastside has not changed any bid documents and have fully complied to the requirements of Public Contract code and Instruction to the bidder's requirements. Stated in the bid package Statement of Qualifications Section B- Owner will notify Apparent Low Bidder in writing of any deficiencies found and will provide Bidder the opportunity to respond in writing with reasonable clarifications but will not allow any changes in the nature of Bidder as a business entity. Coastside submitted the Bid Proposal on May 1301, 2019 and has not asked to change anything in the bid. Coastside has not received any written correspondence from the City. However, Coastside has complied with the verbal requests made by the City of Petaluma -Public Works Department, in good faith and has provided clarifications. Coastside provided response (Dated 5-20-2019) to Team Ghilotti's (TGI) protest letter (Dated 5-17-2019) and made it absolutely clear that the "Subcontractor's Listing" is not violated by Coastside as the subletting amounts are below the specified' "0-.5% of the bid amount or $10,000 whichever is greater" limits under public contract code. TGI's protest letter dated May 24, alleges that Coastside is;trying to take "second bite at,the apple" is the repetition of the same lie mentioned over and over again. The simple fact is Coastside is a registered Class "A" General! -Engineering, contractor and fully qualified and is the lowest responsive and responsible bidder to complete all work under required for this project. TGI in their protest letter seeks to know why Coastside did not .provide the details of the in- house surveyor. There was no bid requirement by the City to list employees. City of Petaluma has not requested any such information :from Coastside in writing or verbally for any employee documents to verify in house surveyor. Coastside will provide those details as and when requested. As a standard practice Coastside will provide the certified payroll to the DIR and the City as it has done for all the projects with the City. TGI's Statement of Qualification states that the owner has over 40 years of experience. The owner of TGI is Kevin Ghilotti who is 30 years old and has been :president for less than one year. TGI's letter Dated May 24111, 2019 states that "when a bidder says two opposite things are trite, one is not 1true, and makes the.bid Non- responsive, and ,bidder, non -responsible, for not telling the truth in one or the other instance about its singular bid" which makes Team Ghilotti a Non -Responsible bidder. There are various irregularities in the in Bid Forms as well -i.e. List of Materials and Suppliers and Material Guarantee, states "The bidder is required to name the make and supplier of the material items listed below to be furnished under these specifications". However, there are no listed items for which the details can be provided. 34 (;ts.asdc;O(? C011r100 <rrtci (;��p5dr;r� tir;r?. I11c. d dal; Pal 1I�eS c�'%i� et?t r Ho.,;ra, CA 9,5404 70Tb95 E022 Coastside Concrete and Construction ,Inc. has completed multiple contracts for the City of Petaluma of similar magnitude and complexity, successfully and without any litigation. TGI's list of claims and litigations speaks for itself. Coastside has the record of providing a competitive bid on significant projects for the City of Petaluma and successfully completing those projects without -being litigious or filing undue claims and thus providing the City best use of public tax dollars. Coastside does not wish to be litigious but has retained Legal Counsel and intend to file lawsuit if the project is unfairly awarded to other parties. 'In conclusion, Coastside Concrete &,-Construction Inc. reiterates ,that, we are the lowest responsive bidder and we have fulfilled contract document requirements are fully qualified to perform all the work and thus Denman Reach Phase 4 contract should be awarded. Sincerely, Brett Sousa President Cell :707 69S 6022 cc: Public Works Director Asst. Public Works Director SeniorEngineer City Attorney 35 Attachment 10 CITY 01F, PETALUMA pe POST OFFICE Box 61 Y PETALUMA, CA 94953-0061 Re: Petaluma River Flood Management, Denman Reach Phase 4 Project No 016301722 NOTICE AND OPPORTUNITY TO SUBMIT MATERIALS CONCERNING RESPONSIVENESS OF BID Pursuant to the Instructions to Bidders for this project, which provides in pertinent part that "the City reserves the right to reject any or all bids", please be advised that City of Petaluma staff intend to recommend that the bid received from Coastside Concrete and Construction, Public Works & Utilities Inc. (Coastside) for this project be found non-responsive and rejected due to the failure of City Engineer Coastside to: ` 11 English Street Petalrmm, CA 94952 1. Submit a list of Subcontractors Phone (707) 778-4303 2. Submit a List of Material Suppliers and Material Guarantee (particularly the landscaping component) 3. Submit a completed Questionnaire and Financial Assurance Statement that Environmental Services identifies expertise in landscaping, Stormwater Pollution Prevention Plan .and Ellis Creekli"aier monitoring, and irrigation system design. Recycling Facility 3890 elahim , C.494press r54 The purpose of this letter is to afford Coastside notice and an o ortuni to submit ive Petaluma, CA 94954 p p pp ty Phone (707) 776-3777 any materials Coastside wishes concerning the responsiveness of its bid. Fax: (707) 656-4067 The City Council may make a decision concerning award of the project at its meeting on June 17, 2019. Failure to provide information that establishes the responsiveness Parks & Faclllo, of the bid by 5:00 p.m. on June 11, may result in rejection of the bid as non- Malutemmnce responsive and award of the project to the next -lowest, responsive bidder. This notice eta Hopper CA r. 95 and opportunity to submit materials is provided in accordance with the requirements of Petuhrmn, CA 94952 pP Y P q Phone (707) 778-4303 Ghilotti Construction Co, v. Richmond (1996) 45 Cal.App.4th 897. Far (707) 206-6065 If you have any questions, please contact the City Attorney's Office at (707) 778-4497. Material concerning bid responsiveness may be faxed to 707/206-6040. Transit Division 555 N. McDowell Blvd, Pelalmna, CA 94954 Phone (707) 778-4421 Utilities & Field Operatlons 202 N. McDowell Blvd. Petahona, CA 94954 Phone (707) 778-4546 Fav (707) 206-6034 E -Mail: puhlicworks@ ci.petahnna.ca.us Sincerely, Ken Eichstaedt Senior Engineer cc: Jason Beatty Lisa Tennenbaum Eric Danly Team Ghilotti, Inc. 36 May 29, 2019 Term Barrett Mayor D'Lyndn Tischer TO: Brett: Sousa/President NliK niy Gnbe Kearney Coastside Concrete and Construction Inc. , Dnve King 5958 Petaluma Hill Rd. Nevin McDonnell Knthy Miller Santa Rosa, CA 95404 Councilmembers Re: Petaluma River Flood Management, Denman Reach Phase 4 Project No 016301722 NOTICE AND OPPORTUNITY TO SUBMIT MATERIALS CONCERNING RESPONSIVENESS OF BID Pursuant to the Instructions to Bidders for this project, which provides in pertinent part that "the City reserves the right to reject any or all bids", please be advised that City of Petaluma staff intend to recommend that the bid received from Coastside Concrete and Construction, Public Works & Utilities Inc. (Coastside) for this project be found non-responsive and rejected due to the failure of City Engineer Coastside to: ` 11 English Street Petalrmm, CA 94952 1. Submit a list of Subcontractors Phone (707) 778-4303 2. Submit a List of Material Suppliers and Material Guarantee (particularly the landscaping component) 3. Submit a completed Questionnaire and Financial Assurance Statement that Environmental Services identifies expertise in landscaping, Stormwater Pollution Prevention Plan .and Ellis Creekli"aier monitoring, and irrigation system design. Recycling Facility 3890 elahim , C.494press r54 The purpose of this letter is to afford Coastside notice and an o ortuni to submit ive Petaluma, CA 94954 p p pp ty Phone (707) 776-3777 any materials Coastside wishes concerning the responsiveness of its bid. Fax: (707) 656-4067 The City Council may make a decision concerning award of the project at its meeting on June 17, 2019. Failure to provide information that establishes the responsiveness Parks & Faclllo, of the bid by 5:00 p.m. on June 11, may result in rejection of the bid as non- Malutemmnce responsive and award of the project to the next -lowest, responsive bidder. This notice eta Hopper CA r. 95 and opportunity to submit materials is provided in accordance with the requirements of Petuhrmn, CA 94952 pP Y P q Phone (707) 778-4303 Ghilotti Construction Co, v. Richmond (1996) 45 Cal.App.4th 897. Far (707) 206-6065 If you have any questions, please contact the City Attorney's Office at (707) 778-4497. Material concerning bid responsiveness may be faxed to 707/206-6040. Transit Division 555 N. McDowell Blvd, Pelalmna, CA 94954 Phone (707) 778-4421 Utilities & Field Operatlons 202 N. McDowell Blvd. Petahona, CA 94954 Phone (707) 778-4546 Fav (707) 206-6034 E -Mail: puhlicworks@ ci.petahnna.ca.us Sincerely, Ken Eichstaedt Senior Engineer cc: Jason Beatty Lisa Tennenbaum Eric Danly Team Ghilotti, Inc. 36