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03-17-2020 - AGENDA ITEM 10 CONSIDERATION OF AN AGREEMENT WITH THE STONE COLLECTOR FOR CONSTRUCTION OF A RESTROOM RENOVATION PROJECT AT WEST COVINA SENIOR CENTER (PROJECT NO. 19003)11/16/2020 Print Staff Report AGENDA ITEM NO. 10 DATE: March 17, 2020 TO: Mayor and City Council FROM: David Carmany City Manager AGENDA STAFF REPORT City of West Covina I Office of the City Manager SUBJECT: CONSIDERATION OF AN AGREEMENT WITH THE STONE COLLECTOR FOR CONSTRUCTION OF A RESTROOM RENOVATION PROJECT AT WEST COVINA SENIOR CENTER (PROJECT NO. 19003) RECOMMENDATION: It is recommended that the City Council: 1. Waive the minor irregularities in the bid submitted by the Stone Collector and award a construction agreement to The Stone Collector for $215,000 for the Restroom Renovation at Sr. Center Project (City Project No. 19003); 2. Authorize the City Manager to negotiate and execute the agreement; 3. Authorize 10% of the awarded contract amount as contingency allowance to be used if necessary at Community Development Director's discretion for unforeseen conditions; and 4. Authorize the City Manager to execute any amendments to the agreement. BACKGROUND: The City is renovating the restrooms at the Senior Center Facility, located at 2501 E. Cortez St. The work consists of renovation of existing men's and women's restroom facilities, accessibility improvements, replacement of partitions, accessories, lavatories, urinals, water closets, lighting, floor slab, and finishes at the Senior Center Facility. DISCUSSION: On December 26, 2019, the City advertised the construction bid package for Restroom Renovation at Sr. Center Project (Project No. SP-19003). The following seven (7) bids were received at the Bid Opening held on January 16, 2020: Contractor Total Bid Amount The Stone Collector 1$215,000.00 RCM Construction, Inc. F $218,933.99 Corral Construction & Development, Inc. $221,449.00 R Dependable Const., Inc. $249,000.00 https://destinyhosted.com/print_ag_memo.cfm?seq=708&rev_num=0&mode=Extemal&reloaded=true&id=93782 1/3 RS Construction • The bid envelope they delivered was not sealed and I made a verbal objection to this. Per the Notice to Contractors it states" Proposals shall be SEALED and plainly marked. This should not have been accepted at all. • Hud Form 4230 A they did not fill out Box 10 and they have subcontractors listed on III-6 Subcontractor List. The bottom of this form was signed in HUD use only area. • A-23 Equal Opportunity Commitment No labor Union was included and yet they have Labor and Carpenter Committed. • A-24 was not filled out at all. • A-27 top portion was not filled out and they have committed to Labor and Carpenter. • Does not have a fire alarm license. Please make note that this information given to me was sent yesterday 1/21/2020. I appreciate you r review in the above matter and request for all bids to be dis quali fied . Tha nk you, Silvana Kemble New Millennium Construction Service Inc. newmil le nniumcons tru ctionse rv@gmail.com ATTACHMENT NO.2 Bid Protest Responses from The Stone Collector 70 The Stone Collector TO: City of West Covina DATE: 02/02/2020 Attn: Okan Demirci PROJECT: Restrooms Renovation at Senior Center RE: iBuild Spectrum Bid Protest The Stone Collector employs a wide range of professionals in all aspects of construction needed to successfully complete the project listed above and will perform all trades not listed under sub -contractors listed in the bid documents. The fire alarm scope of work is limited to less than one half of one percent of the total amount of the bid (please see the attached). The Stone Collector listed all sub -contractors in the bid documents including name, address, phone number, license and DIR numbers as required. Please feel free to contact me for any question or clarification. M. Alsayed, Owner The Stone Collector) 2220 Skyline Drive. Fullerton, CA 92831 1714-797-4610 1 maIsayed@sbcglobaI.net Red 1 Fire Suppression, Inc. Fire Sprinkler Contractor License C-16 #1060963 Contact: Moutaz Alsayed 714.797.4610 The Stone Collector 2220 Skyline Dr. Fullerton, CA 92831 Project: Restroom Improvements West Covina Community & Senior Center 2501 E. Cortez St. West Covina. CA 91791 Work Order - 01/16/20 IFS 36724 Summer Dain Ln. Wildomar, CA 92595 Cell: (951) 269-5912 Red lfireinc@gmail.com Red 1 Fire Suppression, Inc. shall furnish all labor to construct and complete, upon the project described above, workman manner, the following: Scope of Work: • Remove, save, and re -install existing fire strobes, fire smoke sensors, & fire sensors to same location. Extend power/data as required. TOTAL COST: 1$400.00 Submitted by: Jorge Rodriguez Accepted by: 70 The Stone Collector TO: City of West Covina DATE: 02/02/2020 Attn: Okan Demirci PROJECT: Restrooms Renovation at Senior Center RE: New Millennium Bid Protest Estimates from subs is just estimates and not a contract which might be subject to changes due to on site work conditions and other factors. Total contract amount is unknown due to change orders, work modifications or subtractions from original bid amount. Future employee(s) in this section is unknown. Dollar amount commitment to section 3 business is unknown. No union was named because we are not sure of which union we would be soliciting workers from and anticipated starting date is unknown. The fire alarm scope of work is limited to less than one half of one percent of the total amount of the bid (please see the attached). M. Alsayed, Owner The Stone Collector1 2220 Skyline Drive. Fullerton, CA 92831 1 714-797-4610 1 maIsayed@sbcglobaI.net Red 1 Fire Suppression, Inc. Fire Sprinkler Contractor License C-16 #1060963 Contact: Moutaz Alsayed 714.797.4610 The Stone Collector 2220 Skyline Dr. Fullerton, CA 92831 Project: Restroom Improvements West Covina Community & Senior Center 2501 E. Cortez St. West Covina. CA 91791 Work Order - 01/16/20 IFS 36724 Summer Dain Ln. Wildomar, CA 92595 Cell: (951) 269-5912 Red lfireinc@gmail.com Red 1 Fire Suppression, Inc. shall furnish all labor to construct and complete, upon the project described above, workman manner, the following: Scope of Work: • Remove, save, and re -install existing fire strobes, fire smoke sensors, & fire sensors to same location. Extend power/data as required. TOTAL COST: 1$400.00 Submitted by: Jorge Rodriguez Accepted by: ATTACHMENT NO.3 Staffs Responses to Protest Letters March 2, 2020 Farshad Farahani iBuild Spectrum 540 N. Golden Circle, Ste. 201 Santa Ana, CA 92705 SUBJECT: BID PROTEST REGARDING CITY OF WEST COVINA'S RESTROOM RENOVATION AT SENIOR CENTER PROJECT, CITY PROJECT NO. 19003 Dear Mr. Farahani This letter responds to your bid protest regarding the bid submitted by The Stone Collector ("Stone Collector"), the apparent low bidder for the City of West Covina's Restroom Renovation at Senior Center Project, City Project No. 19003 (the "Project"). For the reasons set forth below, following City staff's review and analysis of the protest and consultation with legal counsel, we have determined that Stone Collector submitted a responsive bid. Accordingly, staff will recommend that the City Council waive the minor irregularity identified in your bid protest and award the Project to Stone Collector as the lowest responsive, responsible bidder. California Public Contract Code section 20162, which governs the City's award of the contract for this Project, requires that the contract be awarded, if at all, to the lowest responsible bidder. A bid is responsive if it promises to do what the bidding instructions demand. (D.H. Williams Construction, Inc. v. Clovis Unwed School Dist., 146 Cal. App. 4th 757, 764 (5th Dist. 2007).) Responsiveness is determined from the face of the bid..(Great West Contractors, Inc. v. Irvine Unified School Dist., 187 Cal. App. 4th 1425, 1452-53 (4th Dist. 2010).) A bid that substantially conforms to a call for bids may, although not strictly responsive, be accepted if the variance is inconsequential, meaning the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders. (See Ghilotti Construction Co. v. City of Richmond, 45 Cal. App. 4th 897, 904 (1st Dist. 1996).) An actual competitive advantage arises only when a bid defect establishes an actual ground for a successful bidder to withdraw its bid without incurring liability under its bond. (Bay Cities Paving & Grading, Inc. v. City of San Leandro, 223 Cal. App. 4th 1181 (1 st Dist. 2014).) In Section 14 of the Instructions to Bidders, the City expressly reserves its rights to evaluate bid compliance and to waive minor bidding errors: "The City reserves the right to reject any and all proposals and to waive any minor or technical discrepancies or irregularities. Proposals may be rejected if they show 1444 West Garvey Avenue South • West Covina, CA 91790 • Telephone (626)939-8425 • Fax (626) 939-8660 iBuild Spectrum Bid Protest Response March 2, 2020 any alteration of form, additions not called for, conditional bids, incomplete bids, erasures, or irregularities of any kind." In your bid protest letter, you argued that Stone Collector's bid was not responsive for the following reasons: (1) Stone Collector has not named any subcontractor related to plumbing, HVAC, and fire alarm and sprinkler work, which needs to be done by licensee and has to be named on bid package; and (2) according to Addendum #1, the contractor is required to submit a print out from the DIR registration website showing that the prime and each subcontractor is currently registered with the DIR, but Stone Collector did not submit it and its package is not complete. Subcontractors for Plumbing, HVAC and Fire Alarm and Sprinkler Work With regard to your argument that Stone Collector did not list subcontractors for plumbing or HVAC work, following receipt of your bid protest, Stone Collector indicated to the City that it will perform all trades not listed under subcontractors in its bid with its own employees. Stone Collector's response is attached as Exhibit "A" for your reference. With regard to your argument that Stone Collector did not submit a subcontractor to perform fire alarm work, California Public Contract Code section 4104 requires that bids include the name and other specified information for each subcontractor who will perform in excess of one-half of one percent (0.5%) of the prime contractor's total bid. Following receipt of your bid protest, Stone Collector indicated to the City that the scope of work to be performed by the subcontractor for the fire alarm scope of work is less than 0.5% of the total amount of the bid. Stone Collector submitted the subcontractor's bid, totaling $400, which is less than 0.5% of Stone Collector's bid. Stone Collector's bid reflected a total cost of $3,000 for the fire alarm work. Stone Collector explained to staff that costs beyond the subcontractor's work include estimated overhead, insurance, bonds, mobilization, and unforeseen conditions. Accordingly, since the subcontractor's work is less than 0.5% of the total bid, Stone Collector was not required to list the subcontractor in its bid. Submission of Printout from DIR Website With regard to your argument that Stone Collector did not submit the required printout showing current DIR registration for itself and its subcontractors, staff verified during its analysis of the bid that Stone Collector and each of its subcontractors have current and active registration with the DIR. Stone Collector's failure to include such printout with its bid package appears to be a clerical error. It is staff's position that this clerical error is a minor irregularity that does not impact the amount of the bid or provide an unfair advantage to Stone Collector. Therefore, staff will recommend that the City Council waive the minor irregularity. As outlined above, Public Contract Code section 20162 requires that the City award the contract for this Project to the lowest responsible bidder. City staff has reviewed Stone Collector's bid and determined that it is responsive on its face, in that Stone Collector's bid promises to do what the bidding instructions for this Project demand. It is also staff's position that the failure to include the DIR printout was a clerical error, which was a minor irregularity in the bid. The minor irregularity does not impact the amount of the bid or provide an unfair advantage to Stone Collector. iBuild Spectrum Bid Protest Response March 2, 2020 In sum, staff has determined that Stone Collector's bid is responsive and that Stone Collector is the lowest responsible bidder. Therefore, staff will recommend that the City Council waive the minor irregularity and award the contract for this Project to Stone Collector. This item is scheduled to be presented to the City Council on March 17, 2020. Thank you for your interest in this Project. Please feel free to contact me if you have any further comments or questions. Sincerely, J ff Anderson Community Development Director City of West Covina Copies to: Okan Demirci, CIP Manager Mike Cresap, Public Services Superintendent Brittany Roberto, Deputy City Attorney 11/16/2020 Print Staff Report IiBuild Spectrum, Inc. $260,000.00 IRS Construction & Development, Inc. $287,000.00 New Millennium Construction Services 11 $356,890.00 The Stone Collector was the apparent low bidder, with a bid in the amount of $215,000. Staff conducted a bid analysis and verified The Stone Collector's California contractor's license, Department of Industrial Relations (DIR) registration, CDBG federal forms compliance, state and federal debarment files, and checked references. The City received bid protest letters from the fifth and seventh lowest bidders objecting to the award of the contract on various grounds (Attachment No. 1). Following receipt of the bid protests, staff requested The Stone Collector's response to each protest. The Stone Collector responded to the City's request (Attachment No. 2). Based upon staff's review of the bid protests, responses from The Stone Collector, and The Stone Collector's bid, it is staff's position that the issues identified in both bid protests either had no merit or are minor, waivable irregularities. Therefore, staff recommends that the City Council waive the minor irregularities and award the contract to The Stone Collector as the lowest responsible bidder. Staff's responses to the bid protest letters are included as Attachment No. 3. The proposed agreement with The Stone Collector is included as Attachment No. 4. Staff is implementing further changes in the request for bid process to address the issues raised and to improve the City's overall processes and procedures. Budgdt The following is the breakdown of the construction phase budget: Construction Budget $215,000.00 Contingency Budget allowance authorization to staff to utilize for unforeseen conditions as necessary (10%) $21,500.00 Total Construction Budget $236,500.00 Budget allowance for construction management, inspections, and administration (services provided under Capital Improvement Projects Management Contract with Transtech) $23,650.00 Budget allowance for federal (CDBG) labor compliance review $5,000.00 Project Total $265,150.00 LEGAL REVIEW: The City Attorney's Office has reviewed the minor irregularities in the bid and finds that they do not constitute a disqualification of the bid. OPTIONS: The City Council has the following options: 1. Approve staff's recommendation; or 2. Provide alternative direction. ENVIRONMENTAL REVIEW: https://destinyhosted.com/print_ag_memo.cfm?seq=708&rev_num=0&mode=Extemal&reloaded=true&id=93782 2/3 EXHIBIT A STONE COLLECTOR'S RESPONSE TO IBUILD SPECTRUM'S BID PROTEST S C The Stone Collector TO: City of West Covina DATE: 02/02/2020 Attn: Okan Demirci PROJECT: Restrooms Renovation at Senior Center RE: New Millennium Bid Protest Estimates from subs is just estimates and not a contract which might be subject to changes due to on site work conditions and other factors. Total contract amount is unknown due to change orders, work modifications or subtractions from original bid amount. Future employee(s) in this section is unknown. Dollar amount commitment to section 3 business is unknown. No union was named because we are not sure of which union we would be soliciting workers from and anticipated starting date is unknown. The fire alarm scope of work is limited to less than one half of one percent of the total amount of the bid (please see the attached). M. Alsayed, Owner The Stone Collectorl 2220 Skyline Drive. Fullerton, CA 92831 1 714-797-4610 1 malsayed@sbcglobal.net Red 1 Fire Suppression, Inc. Fire Sprinkler Contractor License C-16 #1060963 Contact: Moutaz Alsayed 714.797,4610 The Stone Collector 2220 Skyline Dr. Fullerton, CA 92831 Project: Restroom Improvements West Covina Community & Senior Center 2501 E. Cortez St. West Covina, CA 91791 Work Order - 01/16/20 36724 Summer Dain Ln. Wildomar, CA 92595 Cell: (951) 269-5912 Red 1 fireinc@gmail.com Red 1 Fire Suppression, Inc. shall furnish all labor to construct and complete, upon the project described above, workman manner, the following: Scope of Work: • Remove, save, and re -install existing fire strobes, fire smoke sensors, & fire sensors to same location. Extend power/data as required. TOTAL COST: $400.00 Submitted by: Jorge Rodriguez Accepted by: March 2, 2020 Silvana Kemble New Millennium Construction Service Inc. 4158 Lugo Ave. Chino Hills, CA 91709 SUBJECT: BID PROTEST REGARDING CITY OF WEST COVINA'S RESTROOM RENOVATION AT SENIOR CENTER PROJECT, CITY PROJECT NO. 19003 Dear Ms. Kemble This letter responds to your bid protest, dated January 22, 2020, protesting the bid submitted by The Stone Collector ("Stone Collector"), the apparent low bidder for the City of West Covina's Restroom Renovation at Senior Center Project, City Project No. 19003 (the "Project"). For the reasons set forth below, following City staff's review and analysis of the protest and consultation with legal counsel, we have determined that Stone Collector submitted a responsive bid. Accordingly, staff will recommend that the City Council waive the minor irregularities identified in your bid protest and award the Project to Stone Collector as the lowest responsive, responsible bidder. California Public Contract Code section 20162, which governs the City's award of the contract for this Project, requires that the contract be awarded, if at all, to the lowest responsible bidder. A bid is responsive if it promises to do what the bidding instructions demand. (D.H. Williams Construction, Inc. v. Clovis Unified School Dist., 146 Cal. App. 4th 757, 764 (5th Dist. 2007).) Responsiveness is determined from the face of the bid. (Great West Contractors, Inc. v. Irvine Unified School Dist., 187 Cal. App, 4th 1425, 1452-53 (4th Dist. 2010).) A bid that substantially conforms to a call for bids may, although not strictly responsive, be accepted if the variance is inconsequential, meaning the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders. (See Ghilotti Construction Co. v. City of Richmond, 45 Cal. App. 4th 897, 904 (1st Dist. 1996).) An actual competitive advantage arises only when a bid defect establishes an actual ground for a successful bidder to withdraw its bid without incurring liability under its bond. (Bay Cities Paving & Grading, Inc. v. City of San Leandro, 223 Cal. App. 4th 1181 (1 st Dist. 2014).) In Section 14 of the Instructions to Bidders, the City expressly reserves its rights to evaluate bid compliance and to waive minor bidding errors: "The City reserves the right to reject any and all proposals and to waive any minor or technical discrepancies or irregularities. Proposals may be rejected if they show 1444 West Garvey Avenue South • West Covina, CA 91790 • Telephone (626) 939-8425 • Fax (626) 939-8660 New Millennium Construction Service Inc Bid Protest Response March 2, 2020 any alteration of form, additions not called for, conditional bids, incomplete bids, erasures, or irregularities of any kind." In your bid protest letter, you argued that Stone Collector: (1) did not enter the percent of work to be performed by subcontractors at the bottom of the page of the Subcontractor List (Page III-6); (2) did not include the same information on the Contractor List of Proposed Subcontractors (Page A-21) as it did on Subcontractor List (Page III-6); (3) on the Federal Requirements exhibits: (a) did not check any boxes or put the contract award on A-19, (b) did not select a box on A-24, (c) did not include Federal ID or dollar amount on A-26, and (d) did not include a union address or an anticipated start date on A-27; and (4) does not hold a fire alarm license and did'not submit a subcontractor for the fire alarm work. Listing Percent of Work to Be Performed by Subcontractors on Subcontractor List (Page 111-6) Although Stone Collector did not fill in the blank at the bottom of the page on the Subcontractor List on Page III-6 to indicate the percentage of work to be performed by subcontractors, Stone Collector completed the remainder of the form, which outlines each subcontractor to be utilized for the Project and the cost of the work to be performed by that subcontractor. During staff's review of the bid, staff calculated that Stone Collector's subcontracted amount is 32.91 % of the total bid amount, which is less than the maximum of 50% set forth in the bid documents. The omission of filling in the space to indicate the total percentage of work to be performed by subcontractors appears to be a clerical error. It is staff's position that this clerical error is a minor irregularity that does not impact the amount of the bid or provide an unfair advantage to Stone Collector. Therefore, staff will recommend that the City Council waive the minor irregularity. Different Figures on Contractor List of Proposed Subcontractors (Page A-21) and Subcontractor List (Page 111-6) On Page A-21, Stone Collector listed that the contract amount for Choice Builders is $22,000 and the contract amount for Moore Flooring is $29,000, On Page III-6, Stone Collector listed the contract amounts for each company as $21,617 and $29,144, respectively. Based on staff's review of each document, it appears that Stone Collector used precise figures on the Subcontractor List (Page III-6) and approximate figures on the Contractor List of Proposed Subcontractors (Page A-21). These inconsistencies appear to be a clerical error that does not impact the amount of the bid or provide an unfair advantage to Stone Collector. Therefore, staff will recommend that the City Council waive the minor irregularity. Federal Requirements Exhibit A-19 — Certification with Regard to the Performance of Previous Contracts or Subcontracts Subject to the Equal Opportunity Clause and the Filing of Required Reports Stone Collector submitted the required certification, but did not check the applicable boxes or fill in the contract amount. It appears that such omissions were a clerical error. It is staff's position that the clerical error is a minor irregularity that does not impact the amount of the bid or provide an unfair advantage to Stone Collector. Therefore, staff will recommend that the City Council waive the minor irregularity. Exhibit A-24 — 2019 Income Certification New Millennium Construction Service Inc. Bid Protest Response March 2, 2020 Stone Collector submitted the required Income Certification form as instructed in the bid documents, but did not check any of the boxes on the certification. Although the bid documents required submission of the Income Certification form, Stone Collector also submitted Economic Opportunity Plan (Exhibit A-26). Stone Collector provided employment and training commitment as part of its Economic Opportunity Plan, which meets this requirement. Therefore, Stone Collector did as instructed by the bid documents by submitting the form. This does not appear to be an error by Stone Collector. Exhibit A-26 — Section 3 Economic Opportunity Plan Stone Collector submitted the Section 3 Economic Opportunity Plan but did not include the Federal Identification (Contract Award No.) or the Dollar Amount of the Award. The Federal Identification number was not provided in the bid documents. Further, Stone Collector's omission of the Dollar Amount of the Award appears to have been a clerical error. It is staff's position that the clerical error is a minor irregularity that does not impact the amount of the bid or provide an unfair advantage to Stone Collector. Therefore, staff will recommend that the City Council waive the minor irregularity. Exhibit A-27 — Notice of Section 3 Commitment Stone Collector did not identify a union in the Notice of Section 3 Commitment document and did not include an anticipated start date. Although the bid documents required submission of the Notice of Section 3 Commitment, not all information requested in the document was known at the time of submission of bid. For example, the anticipated start date was not known at the time of bid submission. With regard to not listing the labor union, following receipt of your bid protest, Stone Collector indicated to the City that it was unsure from which union it would solicit workers. Stone Collector's response to your bid protest is attached as Exhibit "A" for your reference. It is staff's position that the omission is a minor irregularity that does not impact the amount of the bid or provide an unfair advantage to Stone Collector. Therefore, staff will recommend that the City Council waive the minor irregularity. Fire Alarm Work With regard to the argument that Stone Collector does not have a valid fire alarm (C-16) license, there is no requirement in the bidding instructions that bidders possess a fire protection license. Rather, the only requirement within the bidding documents is that the contractor shall have a valid "B" California Contractor's License (General Building Contractor License). Stone Collector has the required license. With regard to your argument that Stone Collector did not submit a subcontractor to perform such work, California Public Contract Code section 4104 requires that bids include the name and other specified information for each subcontractor who will perform in excess of one- half of one percent (0.5%) of the prime contractor's total bid. Following receipt of your bid protest, Stone Collector indicated to the City that the scope of work to be performed by the subcontractor for the fire alarm scope of work is less than 0.5% of the total amount of the bid. Stone Collector submitted the subcontractor's bid, totaling $400, which is less than 0.5% of Stone Collector's bid. Stone Collector's bid reflected a total cost of $3,000 for the fire alarm work. Stone Collector explained to staff that costs beyond the subcontractor's work include estimated overhead, insurance, bonds, mobilization, and unforeseen conditions. Accordingly, since the subcontractor's New Millennium Construction Service Inc. Bid Protest Response March 2, 2020 work is less than 0.5% of the total bid, Stone Collector was not required to list the subcontractor in its bid. As outlined above, Public Contract Code section 20162 requires that the City award the contract for this Project to the lowest responsible bidder. City staff has reviewed Stone Collector's bid and determined that it is responsive on its face, in that Stone Collector's bid promises to do what the bidding instructions for this Project demand. To the extent Stone Collector's bid had clerical errors, it is staff's position that such errors were minor irregularities in the bid. The minor irregularities do not impact the amount of the bid or provide an unfair advantage to Stone Collector. In sum, staff has determined that Stone Collector's bid is responsive and that Stone Collector is the lowest responsible bidder. Therefore, staff will recommend that the City Council waive the minor irregularities and award the contract for this Project to Stone Collector. This item is scheduled to be presented to the City Council on March 17, 2020. Thank you for your interest in this Project. Please feel free to contact me if you have any further comments or questions. Sincerely, AAnderson J Community Development Director City of West Covina Copy to: Okan Demirci, CIP Manager Mike Cresap, Public Services Superintendent Brittany Roberto, Deputy City Attorney EXHIBIT A STONE COLLECTOR'S RESPONSE TO NEW MILLENNIUM CONSTRUCTION SERVICE INC.'S BID PROTEST t' The Stone Collector TO: City of West Covina DATE: 02/02/2020 Attn: Okan Demirci PROJECT: Restrooms Renovation at Senior Center RE: iBuild Spectrum Bid Protest The Stone Collector employs a wide range of professionals in all aspects of construction needed to successfully complete the project listed above and will perform all trades not listed under sub -contractors listed in the bid documents. The fire alarm scope of work is limited to less than one half of one percent of the total amount of the bid (please see the attached). The Stone Collector listed all sub -contractors in the bid documents including name, address, phone number, license and DIR numbers as required. Please feel free to contact me for any question or clarification. M. Alsayed, Owner The Stone Collector 2220 Skyline Drive. Fullerton, CA 92831 1 714-797-4610 1 malsayed@sbcglobaI.net Red 1 Fire Suppression, Inc. Fire Sprinkler Contractor License C-16 #1060963 Contact: Moutaz Alsayed 714.797.4610 The Stone Collector 2220 Skyline Dr. Fullerton, CA 92831 Project: Restroom Improvements West Covina Community & Senior Center 2501 E. Cortez St. West Covina, CA 91791 Work Order - 01/16/20 36724 Summer Dain Ln. Wildomar, CA 92595 Cell: (951) 269-5912 Red lfireinc@gmail.com Red 1 Fire Suppression, Inc. shall furnish all labor to construct and complete, upon the project described above, workman manner, the following: Scope of Work: • Remove, save, and re -install existing fire strobes, fire smoke sensors, & fire sensors to same location. Extend power/data as required. TOTAL COST: 1$400.00 Submitted by: Jorge Rodriguez Accepted by: 11/16/2020 Print Staff Report The proposed Project is a project subject to CEQA. Staff has reviewed the proposed project and has determined that it is categorically exempt from CEQA pursuant to CEQA Guidelines Section(s) 15302: Replacement or Reconstruction (c) as the project is the replacement of an existing restroom. Prepared by: Okan Demirici, PE, CIP Manager Fiscal Impact FISCAL IMPACT: The City has approximately $167,600 in CDBG funds (Account No. 19003.131.7500) available for this project. The balance of funding will come from the re -programming of funds from another CDBG-funded activity, Senior Center Roof Replacement (Account No: 19005.131.7500). This change in CDBG-funded projects requires a substantial amendment to the City's Action Plan. The required 30-day review period is underway and the matter will be presented to the City Council for consideration in a public hearing in April 2020. The amendment requires HUD approval. Staff has made HUD aware of how the City intends to proceed. HUD has advised staff that the project may be awarded contingent on HUD approval and that related expenditures should not exceed the currently approved budget until the City receives the HUD approval for the amendment. Attachments Attachment No. 1 - Bid Protest Letter Attachment No. 2 - Bid Protest Responses from The Stone Collector Attachment No. 3 - Staffs Responses to Protest Letters Attachment No. 4 - Contract Agreement with The Stone Collector CITY Enhance the City Image and Effectiveness COUNCIL Protect Public Safety GOALS & Respond to the Global COVID-19 Pandemic OBJECTIVES: https://destinyhosted.com/print_ag_memo.cfm?seq=708&rev_num=0&mode=Extemal&reloaded=true&id=93782 3/3 ATTACHMENT NO.4 CONTRACT SERVICE AGREEMENT FOR PROJECT NO.19003 RESTROOM RENOVATION AT SENIOR CENTER THIS CONTRACT SERVICE AGREEMENT (herein "Agreement"), is made and entered into this 17th day of March, 2020 ("Effective Date") by and between the CITY OF WEST COVINA, a municipal corporation (herein "City"), and MOUTAZ ALSAYED, an individual DBA THE STONE COLLECTOR (herein "Contractor"). RECITALS A. City requires construction services for the Restroom Renovation at Senior Center Project, Project No. 19003, that meet the requirements as shown in the project specifications and this Agreement. Contractor has represented to City that Contractor is qualified to perform said services and has submitted a proposal to City for same. B. City desires to have Contractor perform said services on the terms and conditions set forth herein. NOW, THEREFORE, based on the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both parties, City and Contractor hereby agree as follows: 1. SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide all work described in the Contract Documents, as further described herein, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. 1.2 Documents Included in Contract. The complete Agreement consists of (1) this Agreement, (2) Notice to Contractors and Instructions to Bidders, Bid Documents and Contract Documents (Exhibit A), (3) Contractor's Proposal (Exhibit B), (4) Certificates of Insurance (Exhibit C), (5) Bonds (Exhibit D), (6) the Standard Specifications and Standard Specifications for Public Works Construction, as detailed in Section 19-1 of the West Covina Municipal Code, and (7) all exhibits and attachments to the foregoing documents. The documents attached hereto are incorporated herein by this reference. The Standard Specifications and Standard Specifications for Public Works Construction are incorporated by this reference as if fully set forth herein. The documents comprising the complete Agreement may be referred to in this Agreement as the "Contract Documents." In the event of an inconsistency between any of the terms in this Agreement and any of the documents referenced above, this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time the work is performed. 1.4 Licenses, Permits, Fees, and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement, including a business license from the City. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder. Contractor shall be responsible for all subcontractors' compliance with this Section 1.4. 1.5 Familiarity with Work. By executing this Agreement, Contractor warrants that Contractor (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer. 1.6 Care of Work. The Contractor shall adopt reasonable methods during the life of this Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own active negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. Contractor shall require all subcontractors to comply with the provisions of this Agreement. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of the Contract Sum, or in the time to perform of one hundred eighty (180) days or less may be approved by the Contract Officer to the extent authorized in West Covina Municipal Code Section 19-302. Any increases which cannot be approved by the Contract Officer as provided in West Covina Municipal Code Section 19-302, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. 1.9 Prevailing Wages Laws. This project requires the payment of prevailing wages under California Law. In accordance with Labor Code Section 1770, et seq., the director of the Department 2 of Industrial Relations of the State of California has ascertained a general prevailing rate of wages which is the minimum amount which shall be paid to all workers employed to perform the work pursuant to this Agreement. A copy of the general prevailing wage rate determination is on file in the office of the City Clerk and is hereby incorporated in this Agreement. In accordance with the provisions of Labor Code Section 1810, et seq., eight (8) hours is the legal working day. Contractor must forfeit to the City Twenty Five Dollars ($25.00) a day for each worker who works in excess of the minimum working hours for which Contractor does not pay overtime. Contractor is required to post a copy of such wage rates at all times at the project site. The statutory penalties for failure to pay prevailing wage or to comply with State wage and hour laws will be enforced. Contractor also comply with State law requirements to maintain payroll records and shall provide for certified records and inspection of records as required by California Labor Code Section 1770, et seq., including Section 1776. Contractor shall comply with all statutory requirements relating to the employment of apprentices. This project is funded in whole or in part with Community Development Block Grant (CDBG) funds provided by the U.S. Department of Housing and Urban Development (HUD). Federal Labor Standards Provisions, including prevailing wage requirements of the Davis -Bacon and Related Acts apply and will be enforced. The Federal Labor Standards Provisions included within Exhibit B to this Agreement shall apply to Contractor during the performance of this Agreement. 1.10 Special Requirements. This project is funded in whole or in part by federal funds and subject to the Federal Requirements set forth in Exhibit B to this Agreement. Contractor agrees to comply with said Federal Requirements and all federal requirements applicable to the project. COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated as specified herein, but not exceeding the maximum contract amount of Two Hundred Fifteen Thousand Dollars and Zero Cents ($215,000.00) (herein "Contract Sum"), except as provided in Section 1.8. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. 2.2 Progress Payments. Prior to the first day of the month, during the progress of the work, commencing on the day and month specified in the Agreement, Contractor shall submit to the Contract Officer a complete itemized statement of all labor and materials incorporated into the work during the preceding month and the portion of the Contract Sum applicable thereto. Upon approval in writing by the Contract Officer, payment shall be made within thirty (30) days. City shall pay Contractor a sum based upon ninety five percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the Agreement during the month covered by said statement. The remaining five percent (5%) of the Contract Sum shall be retained as performance security in accordance with Section 7.4 of this Agreement. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall complete all services within forty (40) working days. Contractor shall submit for the Contract Officer's approval its proposed Construction Schedule. Contractor shall perform the services in accordance with the approved Construction Schedule. When requested by the Contractor, extensions to the time period(s) specified in the Construction Schedule may be approved in writing by the Contract Officer. 3.3 Force Majeure. The time period(s) specified in the Construction Schedule for performance of the services rendered pursuant to this Agreement shall be extended to the extent caused by delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency other than the City, if the Contractor within ten (10) days of the commencement of such delay notifies the Contract Officer in writing of the causes for the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. Contractor shall not be entitled to any damages or increase in compensation due to force majeure. 3.4 Term. Unless earlier terminated in accordance with Section 7.9 of this Agreement, this Agreement shall continue in fall force and effect until final approval and acceptance of the project by the City. 4. COORDINATION OF WORK 4.1 Representative of Contractor. The following principal(s) of Contractor are hereby designated as being the principal(s) and representative(s) of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Moutaz Alsayed, President The Stone Collector It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal(s) were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal(s) shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principal(s) may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager or City Engineer of City. The Contractor shall keep the Contract Officer informed of Contractor's progress on the services. The Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein or in the City's Municipal Code, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required by this Agreement. 4.3 Prohibition Against Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In 4 the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the City's express consent. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its subcontractors, agents or employees, performs the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, subcontractors, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its subcontractors, agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venture or a member of any joint enterprise with Contractor. 4.5 Identity of Persons Performing Work. Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all tasks and services set forth herein. Contractor represents that the tasks and services required herein will be performed by Contractor or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services. 4.6 Utility Relocation. City, and not Contractor, is responsible for removal, relocation, or protection of existing main or trunkline utilities but only to the extent such utilities were not identified in the invitation for bids or specifications. Where the specifications call for the Contractor to remove, relocate, reconstruct or protect such lines, all such work shall be deemed included in the Contract Sum. Contractor having been presented with a reasonable basis to suspect that any previously unidentified main or mmkline may need to be removed, relocated or protected in place, Contractor shall immediately notify City and the affected utility company in writing of such belief, and the basis therefor, and Contractor shall thereafter work with the City and the utility company to coordinate such removal, relocation or protection. City shall reimburse Contractor for its reasonable costs incurred in locating, repairing damage not caused by Contractor, and removing or relocating such unidentified utility facilities, including equipment idled during such work. Contractor shall not be assessed liquidated damages for delays which meet both of the following requirements (i) the delays occurred after Contractor gave City the written notice required by this Section; and (ii) the delays were caused by the removal, protection, or relocation of such unidentified utility facilities. Nothing herein shall be deemed to prevent the City from seeking reimbursement of any such costs from the affected utility company. 4.7 Trenches or Excavations. Pursuant to California Public Contract Code Section 7104, if the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply: (a) Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) subsurface or latent physical conditions at the site different from those indicated; or (3) unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the 5 Agreement. (b) City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor's cost of, or the time required for, performance of any part of the work shall issue a change order per Section 1.8 of this Agreement. (c) If a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date provided for by the Agreement, but shall proceed with all work to be performed under the Agreement. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the contracting parties. 5. INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance: Coverage (Check if applicable) Minimum Limits combined single limits, per occurrence and aggregate Broad -form commercial general liability, in a form at $2,000,000. If such insurance least as broad as ISO from #CG 00 01 1188, including contains a general aggregate (X) premises -operations, products / completed operations, limit, it shall apply broad form property damage, blanket contractual separately to this Agreement liability, independent contractors, personal injury or or shall be twice the required bodily injury. occurrence limit. (X) Contractual Liability Insurance; Products Liability $1,000,000 limit. Insurance. Comprehensive Automobile Liability Insurance $2,000,000 per occurrence (includes owned, non -owned, and hired automobile combined single limit (X) hazard). combined single limits, per occurrence for bodily injury and property damage. Workers Compensation/Employers' Liability Insurance Statutory $2,000,000 per as required by the State of California. Contractor agrees occurrence. to waive, and to obtain endorsements from its workers' compensation insurer waiving subrogation rights under (X) its workers' compensation insurance policy against the City, its officers, agents, employees, and volunteers for losses arising from work performed by Consultant for the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. CONDITIONS: (a) The insurance companies who provide or issue the policies shall be authorized to do business in the State of California with a current A.M. Best's rating of no less than A:VII, and approved by City. (b) The policies shall contain or be endorsed to contain, to the following provisions (i) Notice of Termination: "Said policy shall not terminate, be suspended, or voided, nor shall it be cancelled, nor the coverage or limits reduced, until thirty (30) days after written notice is given to City Engineer, City of West Covina, 1444 West Garvey Avenue South, West Covina, California 91790." (ii) Additional Insureds: "The City of West Covina and its elected and appointed boards, officers, officials, agents, employees, and volunteers are additional insureds with respect to: liability arising out of activities performed by or on behalf of the Contractor pursuant to its contract with the City; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; automobiles owned, leased, hired, or borrowed by the Contractor." (iii) Excess: "Any insurance maintained by the City of West Covina shall apply in excess of and not combined with insurance provided by this policy" (c) Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City of West Covina, its officers, officials, agents, employees, and volunteers. (d) The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (e) Before starting work, Contractor shall deliver to the City insurance endorsements and certificates of insurance confirming the existence of the insurance required by this contract, and including the applicable clauses referenced above. (f) Such endorsements shall be signed by an authorized representative of the insurance company and shall include the signatory's company affiliation and title. Should it be deemed necessary by the City, Contractor shall see that the City receives documentation, acceptable to the City, which sustains that the individual signing said endorsements is indeed authorized to do so by the insurance company. (g) If the Contractor fails to maintain the aforementioned insurance, or secure and maintain the aforementioned endorsement, the City may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under the agreement. Procuring of said insurance by the City is in addition to all other remedies the City may have. In addition to any other remedies the City may have upon Contractor's failure to timely provide and maintain required insurance or policy endorsements, the City may order Contractor to stop work hereunder, and/or withhold any payment(s) which became due to Contractor hereunder until Contractor demonstrates compliance with the requirements hereof. (h) Nothing herein limits the extent to which Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractors' performance of the work covered under this Agreement. (i) Each contract between the Contractor and any subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to this Section 5.1. 5.2 Indemnification. Contractor agrees to defend (with legal counsel of City's choosing), indemnify, hold free and harmless the City, its elected and appointed officials, officers, agents and employees, at Contractor's sole expense, from and against any and all claims, demands, actions, suits or other legal proceedings brought against the City, its elected and appointed officials, officers, agents and employees arising out of the performance of the Contractor, its employees, and/or authorized subcontractors, of the work undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Contractor, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of the Contractor, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected and appointed officials, officers, agents and employees based upon the work performed by the Contractor, its employees, and/or authorized subcontractors under this Agreement, whether or not the Contractor, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be liable. Notwithstanding the foregoing, the Contractor shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City. This provision shall supersede and replace all other indemnity provisions contained in any other document, which shall be of no force and effect. (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incur -red in connection therewith. (b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising or alleged to arise out of or in connection with Contractor's (or its agents', employees', subcontractors', or invitees') negligent performance of or failure to perform such work, operations or activities hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom. (c) If the City, its officers, agents or employees is/are made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising or alleged to arise out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor shall pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees for counsel acceptable to City. (d) Contractor's duty to defend and indemnify as set out in this Section 5.2 shall include any claims, liabilities, obligations, losses, demands, actions, penalties, suits, costs, expenses or damages or injury to persons or property arising or alleged to arise from, in connection with, as a consequence of or pursuant to any state or federal law or regulation regarding hazardous substances, including but not limited to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), Comprehensive Environmental Response, Compensation and Liability Act of 1980 8 ("CERCLA' ), Resource Conservation and Recovery Act of 1976 ("RCRA"), the Hazardous and Solid Waste Amendments of 1984, the Hazardous Material Transportation Act, the Toxic Substances control Act, the Clean Air Act, the Clean Water Act, the California Hazardous Substance Account Act, the California Hazardous Waste Control Law or the Porter -Cologne Water Quality Control Act, as any of those statutes may be amended from time to time. The Contractor's indemnification obligations pursuant to this Section 5.2 shall survive the termination of this Agreement. Contractor shall require the same indemnification in favor of City from all subcontractors. 5.3 Labor and Materials and Performance Bonds. Concurrently with execution of this Agreement, Contractor shall deliver to City a labor and materials bond and a performance bond each in the sum of the amount of this Agreement, in the forms provided by the City, which secures the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of the Agreement and shall be released or exonerated only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies authorized to do business in California, rated with a current A.M. Best's rating of no less than A: VII unless such requirements are waived by the City's Risk Manager in writing due to unique circumstances. If the City's Risk Manager determines that the work or services to be performed under this Agreement creates an increased risk of loss to the City, the Risk Manager may increase the minimum limits of the insurance policies and the performance bond required by this Section 5 by providing written notice to Contractor; provided that the Contractor may appeal such determination to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. 5.5 Substitution of Securities. Pursuant to California Public Contract Code Section 22300, substitution of eligible equivalent securities for any moneys withheld to ensure performance under the Agreement for the work to be performed will be permitted at the request and expense of Contractor. 6. RECORDS AND REPORTS 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records (including but not limited to payroll records as required herein) as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 9 ATTACHMENT NO. 1 Bid Protest Letters Contractor shall keep detailed records of all work being paid for by Community Development Block Grant Funds, or other federal funding, of each item of work performed, the cost thereof, and the supporting documentation for each payment made from such source of funds, and shall tam over any and all such documentation to City upon demand therefor. Failure to comply with this requirement can lead to Contractor's compensation being reduced by any amount disallowed by the federal agency providing fixnding for all or part of the project, and/or to debarment of Contractor. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for fii Cher employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. ENFORCEMENT OF AGREEMENT; TERNIINATION 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Notice of Default and Cure Period. If either party fails to perform its obligations hereunder, the nondefaulting party shall provide the defaulting party written notice of such default. The defaulting party shall have ten (10) days to cure the default; provided that, if the default is not reasonably susceptible to being cured within said ten (10) day period, the defaulting party shall have a reasonable time to cure the default, not to exceed a maximum of thirty (30) days, provided the defaulting party commences to cure such default within ten (10) days of service of such notice and diligently prosecutes the cure to completion; provided further that if the default is an immediate danger to the health, safety and general welfare, the defaulting party shall take such immediate action as may be necessary. Notwithstanding the foregoing, the nondefaulting party may, in its sole and absolute discretion, grant a longer cure period. Should the defaulting party fail to cure the default within the time period provided in this Section, the nondefaulting party shall have the right, in addition to any other rights the nondefaulting party may have at law or in equity, to terminate this Agreement, and/or to call upon any completion or payment bond or other security for performance thereof. Compliance with the provisions of this Section 7.2 shall be a condition precedent to bringing any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 7.3 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, Contractor shall vacate any City owned property which Contractor is permitted to occupy hereunder and City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of setoff or partial 10 payment of the amounts owed the City as previously stated. 7.4 Termination for Convenience. The City may terminate this Agreement without cause for convenience of the City upon giving Contractor thirty (30) days prior written notice of termination of the Agreement. Upon receipt of the notice of termination, the Contractor shall cease all further work pursuant to the Agreement. Upon such termination by the City, the Contractor shall not be entitled to any other remedies, claims, actions, profits, or damages except as provided in this paragraph. Upon the receipt of such notice of termination, Contractor shall be entitled to the following compensation: (a) The contract value of the work completed through and including the date of receipt of the notice of termination, less the amount of progress payments received by Contractor. (b) Actual move -off costs including labor, rental fees, equipment transportation costs, the costs of maintaining on -site construction office for supervising the move -off. (c) The cost of materials custom-made for this Agreement which the Contractor cannot use in its normal course of business, and for which the City has not already paid. (d) Any costs shall not include any markups as might otherwise be allowed by any plans or specifications which were a part of the Agreement. The provisions of this Section shall supersede provisions of the Agreement and any provision of any plans, specification, addendums or other documents which is or may become a part of this Agreement. City and Contractor agree that the provisions of this paragraph are a substantive part of this Agreement's consideration. 7.5 "Claims" by Contractor under Section 9204. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be subject to all requirements of Public Contract Code Section 9204 ("Section 9204") as it may be amended from time to time. The parties acknowledge that Section 9204 applies to certain requests by Contractor, such as certain requests for time extensions, certain requests for payments not covered by contract, and certain requests for payments of amounts disputed by City. The parties further acknowledge that Section 9204 establishes all of the following: (i) Contractor may submit a "claim" to the City, as that term is defined in Section 9204; (ii) City has an initial 45 days to review and respond to the claim to state "what portion of the claim is disputed and what portion is undisputed'; (iii) Contractor must furnish reasonable documentation to support the claim; (iv) City has 60 days from its written determination to pay any undisputed amount, and (v) specified procedures apply to resolve any amounts in dispute. 7.6 Retention of Funds. Progress payments shall be made in accordance with the provisions of Section 2.2 of this Agreement. hi accordance with said section, City shall pay Contractor a sum based upon ninety five percent (95%) of the Contract Sum apportionment. The remaining five percent (5%) thereof shall be retained as performance security to be paid to the Contractor within sixty (60) days after final acceptance of the work by the City Council, after Contractor furnishes City with a release of all undisputed contract amounts if required by City. If there are any claims specifically excluded by Contractor from the operation of the release, the City may retain proceeds (per Public Contract Code 7107) of up to 150% of the amount in dispute. City's failure to deduct or withhold shall not affect Contractor's obligations hereunder. To the extent consistent with Public Contract Code 22300, Contractor may request and City shall make payment of retentions earned directly to an escrow agent at the expense of Contractor, and may direct the investment of the payments into securities and Contractor shall receive the interest earned on the investments upon the same terms provided for in Public Contract 11 Code Section 22300 for securities deposited by Contractor. Upon satisfactory completion of this Agreement, Contractor shall receive from the escrow agent all securities, interest, and payments received by the escrow agent from the City. 7.7 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A parry's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.8 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.9 Legal Action. In addition to any other rights or remedies, either party may take legal action, at law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.10 Liquidated Damages. Contractor agrees that failure to complete work within the time allowed herein will result in damages being sustained by the City. Contractor further agrees that the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement. Therefore, Contractor agrees that it and its sureties shall be liable for and shall pay to the City liquidated damages in the amount of Five Hundred Dollars ($500.00) for each working day of delay in the performance of any service required hereunder. Contractor further agrees that liquidated damages may be assessed for failure to comply with the emergency call out requirements described in the Scope of Services. The City may withhold from any amounts payable on account of services performed by the Contractor any accrued liquidated damages. Contractor, on behalf of itself and its sureties, and City agree that the liquidated damages constitute a reasonable estimate of actual damages, and are not punitive. 8. CITY OFFICERS AND EMPLOYEES, NONDISCRIMINATION 8.1 Non -liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, gender expression, marital status, national origin, disability, pregnancy, sexual orientation or ancestry in the performance of this Agreement. To the extent required by law, Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during 12 employment without regard to their race, color, creed, religion, sex, gender, gender expression, marital status, national origin, disability, pregnancy, sexual orientation or ancestry. MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other parry or any other person shall be in writing and shall be deemed to be given when served personally or deposited in the U.S. Mail, prepaid, first-class mail, return receipt requested, addressed as follows: To City: City of West Covina 1444 West Garvey Avenue South West Covina, California 91790 Attention: City Engineer To Contractor: The Stone Collector 2220 Skyline Drive Fullerton, CA 92831 Attention: Moutaz Alsayed, President 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either parry by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. If one or more of the words, phrases, sentences, clauses, paragraphs, or sections in this Agreement is declared unenforceable by a court of competent jurisdiction, such unenforceability shall not affect any of the remaining words, phrases, sentences, clauses, paragraphs, or sections of this Agreement which are severable. Remaining enforceable provisions shall be interpreted to carry out the intent of the parties unless an invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.5 Hiring of Undocumented Aliens Prohibited. Contractor shall not hire, employ, or allow any person to work under this Agreement unless such person is properly documented and may legally work within the United States. 9.6 Unfair Business Practices Claims. Consistent with Public Contract Code Section 7103.5, Contractor, on behalf of itself and all subcontractors, offers and agrees to assign to the City all rights, title, and interest in and to all causes of action they may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) and under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to this Agreement. This assignment becomes effective when the City renders final payment to the Contractor without further acknowledgment by the parties. 9.7 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such parry is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 9.8 Legal Responsibilities. The Contractor shall keep itself informed of City, State, and Federal laws, ordinances and regulations, which may in any manner affect the performance of its services pursuant to this Agreement. The Contractor shall at all times observe and comply with all such laws, ordinances and regulations. Neither the City, nor its officers, agents, assigns nor employees shall be liable at law or in equity as a result of the Contractor's failure to comply with this Section. 9.9 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Counterpart written signatures may be transmitted by facsimile, email or other electronic means and have the same legal effect as if they were original signatures. [SIGNATURE PAGE FOLLOWS.] 14 CITY OF WEST COVINA, a municipal corporation David Carmany City Manager ATTEST: Lisa Sherrick Assistant City Clerk APPROIF -D AS TO FORM: Thomas Duarte City Attorney THE STONE COLLECTOR By: Moutaz Alsayed (Print N ) Signature: By: (Print Name) Signature: Title: Owner Title: Address: 2220 Skyline Dr. Address: Fullerton CA 92831 iBuild Spectrum DESIGN & BUILD Protest Letter Subject: Protest against: 1- The Stone Collector License #995919 2- RCM Construction License #794351 3- Corral Construction License 4928805 4- R Dependable License #944088 Project: West Covina Restroom Renovation at Senior Center BID NO. 19003 First bidder: Stone Collector. CA License No. 995919 To Whome it may Concern; it brought to my attention regarding West Covina Restroom Renovation at Senior Center project, that Stone Collector. is not Responsive regarding 116 2020 bid opening at 11:00 am per detail below: iBUILD SPECTRUM submit the protest by this letter against Mentioned company, regarding above project for these reason(S); 1- After review the Bid Package, Stone Collector hasn't named Any Subcontractor related to Plumbing, HVAC, and Also Fire Alarm and Sprinkler work which needs to be done by Licensee and has to be named on the Bid Package 2- According to Addendum 41 Question and Answer, Contractor is required to submit print out from the DIR registration website showing that prime and each subcontractor is currently registered with DIR, But they missed it and package is not complete. Mad Spectrum DESIGN & BUILD Protest Letter Second Bidder: RCM Construction CA License # 794351 iBUILD SPECTRUM submit the protest by this letter against Mentioned company, regarding above project for these reason(S) ; 1-There is no Plumbing, Electrical, HVAC and also Fire Alarm Contractorwhich has to be done by a contractor and General B Can't do that per law. 2- There is no Reference for Previous projects which needs to be include 2yrs of experience. 3- According to Addendum #1 Question and Answer, Contractor is required to submit print out from the DIR registration website showing that prime and each subcontractor is currently registered with DIR, But they missed it and package is not complete. Third Bidder: Corral Construction CA License # 928805 iBUILD SPECTRUM submit the protest by this letter against Mentioned company, regarding above project for these reason(S) ; 1- There is no Plumbing, Electrical, HVAC and also Fire Alarm Contractor which has to be done by a contractor and General B Can't do that perlaw. 2- According to Addendum #1 Question and Answer, Contractor is required to submit print out from the DIR registration website showing that prime and each subcontractor is currently registered with DIR, But they missed it and package is not complete. Forth Bidder: R Dependable CA License # 944088 iBUILD SPECTRUM submit the protest by this letter against Mentioned company, regarding above project for these reason(S) ; 1-There is No Plumbing, Electrical and HVAC Subcontractor inthe package. 2- Federal paperwork hasnt been included in the package which was mandatory to attach to it. 3- According to Addendum #1 Question and Answer, Contractor is required to submit print out from the DIR registration website showing that prime and each subcontractor is currently registered with DIR, But they missed it and package is not complete. Project No: 19003 Addendum 1, City of West Covina, Restroom Renovation at Sr. Center Document Control Page 4 of 48 Q.09 Is the contractor required to submit print out from the DIR registration website showing that prime and each subcontractor is currently registered with DIR? A.09 Yes. Q.10 The bid documents include three bonds (Performance Bond, Labor and Materials Bond, and Warranty Bond) that must be furnished. Our question is when do these items need to be furnished? A.10 Awarded contractor will be required to furnish these bonds. Q.11 At the pre -bid meeting a question was brought up regarding the temporary ADA bathroom requirement specified on page 20 of the bid packet. Our question is whether we need to provide a trailer or port -a -potties or if we need to maintain the bathrooms usable during construction? If we are required to provide an external source of portable bathrooms, where would we locate them on the site? A11 See response to question 5. City will designate space in the parking lot for portable toilets. Q.12 We also wanted to confirm the concrete removal. In the drawing notes it states partial concrete removal, but in the demo detail of page A3 it shows all concrete in bathrooms to be removed. Can you verify the amount of concrete that needs to be removed? A.12 Entire concrete slab shall be removed in restrooms and adjacent hall for new plumbing work and new concrete slab. For any questions regarding Federal Labor Compliance (Section 3), please contact Lissette Montoya P:323-371-5530 For all other questions, please contact via email: Okan Demirci, PE Project Manager City of West Covina E: okan.demirci@transtech.ore APPENDICES: Addendum 1, Appendix A - Revised Proposal Schedule Addendum 1, Appendix B - Revised Exhibit 15 — Applicable Federal Wage Decision Addendum 1, Appendix C - Mandatory Pre -bid Meeting Sign -in Sheet Addendum 1, Appendix D — Revised Plan Sheets A-2, A-3, A-4 on Exhibit B — Project Plans Addendum 1, Page 3 of 3 New Millennium Construction Service Inc. 4158 Lugo Ave Chino Hills CA, 91709 January 22, 2020 City Clerk CITY OF WEST COVINA 1444 W. GARVEY AVENUE SOUTH WEST COVINA, CA 91790 RE: Project 19003 Senior Center Restroom Improvements Bid Date: January 16,2020 Subject: Protest this Bid Senior Center Restroom Improvements# 19003. New Millennium Construction Service Inc. is protesting this bid on the following grounds and request for all bids to be disqualified. The Stone Collector. • On the Subcontractor List III-6 they did not complete this form at the bottom where you ask "Percent of work to be performed by sub -contractor:_% "nothing was entered. • On the Contractor List of Proposed Subcontractors they did not put the accurate contract amount that they had on form III-6 (Sub -Contractor List) For Choice Builders they had 21,617 then listed 22,000. For Moore Flooring they had 29,144 then listed 29,000. • On Exhibit A-19 Federal Requirement no boxes where checked at the top and they did not put the contract award which would be his final bid cost. • A- 24 Exhibit A Federal Requirements- did not select the box Not a Public Housing or low income resident and did not select the box NA in the outline box "This section must be completed by the Authorized Business owner or Agent" • A-26 Exhibit A Federal Requirements - Federal ID and dollar amount was not included. Dollar amount would have been the bid amount. • A-27 Exhibit A Federal Requirements- was incomplete no Union address was submitted and yet they put Laborer 's down and no anticipated start date. • They do not hold a fire alarm license nor did they submit a sub. RCM Construction • On the Subcontractor List III-6 they did not complete this form at the bottom where you ask " Percent of work to be performed by sub -contractor:_% " nothing was entered. • On III-7 Bidder's Guarantee they did not put the amount for the 10% of the amount bid. • On 111-8 References they did not provide any public agencies for work that they had done in the last 3 yearsetc. • On HUD form 4230 A Exhibit A- Federal Requirements they did not include any information in box 10 and they submitted 1 sub on other forms and at the bottom they signed Agency Rep etc where For HUD Use Only. • ON A- 23 Exhibit A Federal Requirements- They put N/A instead of The City of WC. • This contractor does not hold a Fire Alarm License nor did they submit a sub. Corral Construction • On 111-6 Bid Document they did not give% of work to be performed by subs. • On Hud Form 4230 A they did not fill any info out. • On A -27 top of form is not complete • They do not hold a fire alarm license R-Dependable • On II1-6 Bid document- They did not put the% of work to be performed by subcontractor and they listed 2. • Does not have a fire alarm license • Nothing was given past 1age 22 for review so I am protesting any paees that I could not review and I reauested complete bid information. I -Build • Page 111-7 Bidders Guarantee incomplete form$ is not completed. • Page A-24 disputing the income for Bijan Nezafati on the employee they have listed as a low income resident. He could not be full time and work prevailing wage jobs and make 21,900 or less plus his start date is not listed then they mark Not a public housing or low income resident box. • Page A-24 for Joselito Ambrocio they check he is full time and check box that he is a low income resident start date is not listed then they mark Not a public housing or low income resident box also. • Page A-24 for Luis Gomez they check he is Low income resident then select his income range then select box that he is NOT a public housing or Low income resident and no further info for new hire etc is listed for him. • Page A-25 Section 3 Business Certification Under #1 they selected box 2 - 30% permanent full time employees etc but did not put in how many full time and did not put in amount of section 3 qualified employees. • A-21 Contractor List of'Proposed Subcontractors the contract amount for Moore Flooring 28.100 does not match the same amount listed on 11I-6 $28,200.