Agenda Item A.8
CPMS CONSENT CALENDAR
Meeting Date: October 3, 2023
TO: Mayor and Councilmembers
FROM: Charles W. Ebeling, Public Works Director
CONTACT: Kent Yankee, Contract Project Manager
SUBJECT: Award of Construction Contract for the Dearborn Place and Armitos Avenue Americans with Disabilities Act Improvement Project (Phase II) RECOMMENDATION:
A. Authorize the City Manager to execute a Construction Contract with Toro Enterprises, Inc. for the Dearborn Place and Armitos Avenue A mericans with Disabilities Act Improvements Project (Phase II) in the not-to-exceed amount of $208,780, subject to the requirements of the contract documents;
B. Authorize the City Manager to approve contract change orders for the Dearborn Place and Armitos Avenue Americans with Disability Act Improvements Project (Phase II), if necessary, in an amount not-to-exceed $41,756; and
C. Authorize a budget appropriation of $15,516.30 from Community Development Block Grant fund balance to account 402-50-5800-51071.
BACKGROUND:
The City received a request from a resident to provide an Americans with Disabilities Act (ADA) accessible path of travel along Dearborn Place and Armitos Avenue. On September 24, 2020, an evaluation was completed of the site condition by Public Works staff. Staff found that the path of travel adjacent to the Dearborn Place and Armitos Avenue intersection required upgrades to the path of travel for ADA compliance.
Public Works was not able to address all locations at once due to funding constraints.
The necessary improvements were broken into a two-phase project to be addressed as funding became available. For Phase I of the project, two pedestrian curb ramps located at th e Dearborn Place and Armitos Avenue intersection and the pavement elevations across Armitos Avenue were reconstructed to address the immediate concern associated with providing an ADA accessible crossing at the location. The construction of these improvements was completed in June 2021.
1 Meeting Date: October 3, 2023
Phase II of the ADA improvement project (the current Project) includes reconstruct ion of driveways at three locations along Armitos Avenue in order to create an accessible path of travel to address A DA compliance and public safety. There is an additional driveway location along Dearborn requiring ADA improvements that will be addressed as part of the 2023 Pavement Rehabilitation Project.
DISCUSSION:
The Project includes ADA upgrades for the path of travel at Dearborn Place. Construction is scheduled to start in spring 2024 and be completed in winter 2024.
Bidding
The Public Works Department solicited competitive bids for the Dearborn Place and Armitos Avenue ADA Improvement Project Phase 2 in the Santa Barbara Independent on June 29, 202 3, and Ju ly 13, 202 3. Public Works staff also posted the contract documents on the City’s website and the City’s PlanetBids portal. The bids were opened virtually via PlanetBids on July 25, 202 3. The City received a total of one (1) bid. A summary of the bid and the engineer’s estimate are shown in Table 1 below.
Table 1: Bid Results
Contractor City Total Bid Amount
Toro Enterprises, Inc. Oxnard $208,780.00
Engineer’s Estimate $102,740.00
The overall bid result received is 103% higher than the engineer’s estimate which is in line with the inflationary cost increases, difficulties with supply chain and delivery of some materials, as well as contractor availability recently seen in the construction market.
Public Works staff have reviewed the bid and all associated forms, investigated the contractor, and have determined Toro to be responsive to the bid solicitation. Therefore, Public Works staff recommend that City Council find the bid from Toro to be the lo west responsive bid and award a construction contract for the Dearborn Place and Armitos Avenue ADA Improvements Project (Phase II) to Toro in a not -to-exceed amount of $208,780. Additional authority is also request ed for staff to approve contract change orders up to $41,756 above the bid price.
FISCAL IMPACTS:
Fiscal Impacts will include cost of construction and contingency as described above as well as the cost of construction management and City Staff time estimated at $31, 317 and $10,439 respectively. Table 1 below outlines the estimated costs for the Project. 2 Meeting Date: October 3, 2023
Table 1: Project Costs
Project
Components Estimated Costs Funding Source Funding Amounts Conceptual Design $0 CDBG (402) $140,516.30
Environmental $0 General Fund (101) $204,483.70
Final Design $45,000
Land Acquisition/
Right-of-Way $0
Construction $300,000
Total: $345,000.00 Total: $33,317,946
The total estimated cost then comes to $292,292. The available funding is shown in Table 2 below.
Table 2: FY 23/23 Project Funding
Dearborn Place and Armitos Avenue ADA Improvements Project (Phase II) Fund
Type
Account FY 23/24
Current
Budget
YTD Actuals/
Encumbrances
Total
Appropriatio
n Requested
Total
Available
Budget
CDBG 402-50-5800-
51071
$125,000.00 $0 $15,516.30 $140,516.30
General
Fund
101-50-5800-
51071
$535,900.00 $55,575.19 $0.00 $480,324.81
Total $660,900.00 $55,575.19 $15,516.30 $620,841.11
Staff is recommending an appropriation from Community Development Block Grant (CDBG) fund balance of $15,516.30 to the Concrete-Maintenance account (402-50-5800- 51071).
ALTERNATIVES:
Another alternative is to reject the bid and not perform the construction which could open the City to liability involved in ADA compliance as well as loss of CDBG funding.
The other alternative is to reject the bid and resolicit bids which will delay construction, opening the City to liability involved in ADA compliance, loss of CDBG funding, and does not guarantee a more amicable outcome of bid participation and project cost as is evident with the trending construction market.
3 Meeting Date: October 3, 2023
Reviewed By: Legal Review By: Approved By:
___________________ ___________________ _________________ Kristine Schmidt Megan Garibaldi Robert Nisbet
Assistant City Manager City Attorney City Manager
ATTACHMENTS:
1. Construction Contract with Toro Enterprises, Inc.
4 ATTACHMENT 1
Construction Contract with Toro Enterprises, Inc.
5 PUBLIC WORKS CONTRACT
BETWEEN THE CITY OF GOLETA
AND
TORO ENTERPRISES, INC.
This Public Works Contract (herein referred to as “ CONTRACT”) is made and entered into by and between the CITY OF GOLETA, a municipal corporation (herein referred to as "CITY"), and Toro Enterprises, Inc., a California Corporation (hereinafter referred to as “CONTRACTOR”).
SECTION A. RECITALS
1. Pursuant to the Notice Inviting Sealed Bids for the Dearborn Place & Armitos Avenue ADA Improvement Project Phase II, bids were received, publicly opened, and declared on the date specified in the notice.
2. On October 3, 2023, Goleta’s City Council declared CONTRACTOR to be the lowest responsible bidder and accepted the bid of CONTRACTOR and the City Council, approved this CONTRACT and authorized the City Manager to execute the CONTRACT with CONTRACTOR for furnishing labor, equipment and material for the Dearborn Place & Armitos Avenue ADA Improvement Project Phase II in the City of Goleta.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, it is agreed:
SECTION B. TERMS
1. GENERAL SCOPE OF WORK: CITY agrees to engage CONTRACTOR and CONTRACTOR agrees to furnish all necessary labor, tools, materials, appliances, and equipment for and do the work for the Dearborn Place & Armitos Avenue ADA Improvement Project Phase II in the City of Goleta. The work shall be perfor med in accordance with the Plans and Specifications (and as generally described in the “Notice Inviting Sealed Bids,” attached as Exhibit A ) and in accordance with bid prices set forth in CONTRACTOR’S Bid Proposal ( attached as Exhibit B) and in accordance with the instructions of the City Engineer, or City’s Manager’s designee.
2. INCORPORATED DOCUMENTS TO BE CONSIDERED COMPLEMENTARY :
The contract documents for the aforesaid project, a complete set of which is on file with the Goleta City Clerk’s Office, shall consist of the Notice Inviting Bids, Instructions to Bidders, Bid Proposal, Standard Specifications, Special Provisions, and all referenced specifications, details, standard drawings, and appendices; together with this CONTRACT and all required bonds, insurance certificates, permits, notices and affidavits; and also, including any and all addenda or supplemental agreements clarifying, amending, or extending the work DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 6 Public Works Contract
TORO ENTERPRISES, INC.
contemplated as may be required to insure its completion in an acceptable manner. All of the provisions of said contract documents are made a part hereof as though fully set forth herein. This contract is intended to require a complete and finished piece of work and anything necessary to complete the work properly and in accordance with the law and lawful governmental regulations shall be performed by CONTRACTOR whether set out specifically in the contract or not. Should it be ascertained that any inconsistency exists between the aforesaid documents and this written CONTRACT , the pr ovisions of this CONTRACT, and the Standard Specifications, in that order, shall control . Collectively, these contract documents constitute the complete CONTRACT between CITY and CONTRACTOR and supersede any previous agreements or understandings.
3. COMPENSATION:
CONTRACTOR agrees to receive and accept the prices set
forth in its Bid Proposal as full compensation for furnishing all materials, performing all work, and fulfilling all obligations hereunder. Said compensation shall cover all expenses, losses, damages, and consequences arising out of the nature of the work during its progress or prior to its acceptance including those for well and faithfully completing the work and the whole thereof in the manner and time specified in the aforesaid contract documents; and also including those arising from actions of the elements, unforeseen difficulties or obstructions encountered in the prosecution of the work, suspension or discontinuance of the work, and all other unknowns or risks of any description connected with the work.
4. TIME OF PERFORMANCE:
CONTRACTOR agrees to complete the work within
the timeframe specified in the Contract Documents from the date of the notice to proceed. By signing this CONTRACT, CONTRACTOR represents to CITY that the contract time is reasonable for completion of the work and that CONTRACTOR will complete such work within the contract time. In accordance with Government Code Section 53069.85, CONTRACTOR agrees to forfeit and pay CITY as liquidated damages, not as a penalty, the sum of $1000 per day for each and every day of unauthorized delay beyond the completion date, which amount shall be deducted from any payments due or to become due the CONTRACTOR.
5. PREVAILING WAGES:
A. Pursuant to Labor Code Section s §§1720 et seq., including but not limited to sections 1771, 1774 and 1775, and as specified in Title 8, California Code of Regulations, Section 16000 et seq., CONTRACTOR must pay its workers prevailing wages . It is CONTRACTOR’s responsibility to interpret and implement any prevailing wage requirements and CONTRACTOR agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
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B. In accordance with Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are available upon request from CITY’s Engineering Division or the website for State of California Prevailing wage determination at http://www.dir.ca.gov/DLSR/PWD. CONTRACTOR must post a copy of the prevailing rate of per diem wages at the job site.
C. CIT
Y directs CONTRACT OR’s attention to Labor Code Sections 1777.5, 1777.6 and 3098 concerning the empl oyment of apprentices by CONTRACTOR or any subcontractor.
D. Labor Code Section 1777.5 requires CONTRACTOR or subcontractor employing tradesmen in any apprenticeship occupation to apply to the joint apprenticeship committee nearest the site of the public wor ks project and which administers the apprenticeship program in that trade for a certificate of approval. The certificate must also fix the ratio of apprentices to journeymen that will be used in the performance of the contract. The ratio of apprentices to journeymen in such cases will not be less than one to five except:
(1) When employment in the area of coverage by the joint appren - ticeship committee has exceeded an average of 15 percent in the 90 days before the request for certificate, or
(2) When the number of apprentices in training in the area exceeds a ratio of one to five, or
(3) When the trade can show that it is replacing at least 1/30 of its membership through apprenticeship training on an annual basis state-wide or locally, or
(4) When assignment of an apprentice to any work performed under a public works contract would create a condition that would jeopardize his or her life or the life, safety, or property of fellow employees or the public at large, or the specific task to which the apprentice is to be assigned is of a nature that training cannot be provided by a journeyman.
Pursuant to Labor Code § 1776, CONTRACTOR shall comply with all Department of Industrial Relations registration requirements.
E. CONTRACTOR is required to make contributions to funds established for the administration of apprenticeship programs if CONTRACTOR employs registered apprentices or journeymen in any apprenticeable trade on such contracts and if other contractors on the public works site are making such contributions.
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F. CONTRACTOR and any subcontractor must comply with Labor Code Sections 1777.5 and 1777.6 in the employment of apprentices.
G. Information relative to apprenticeship standards, wage schedules and other requirements may be obtained from the Director of Industrial Relations (DIR), ex-officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.
H. CONTRACTOR and its subcontractors must keep an accurate certified payroll records showing the name, occupation, and the actual per diem wages paid to each worker employed in connection with this CONTRACT .
The record will be kept open at all reasonable hours to the inspection of the body awarding the contract and to the Division of Labor Law Enforcement .
If requested by CITY, CONTRACT OR must provide copies of the records at its cost.
6. LEGAL HOURS OF WORK:
CONTRACTOR agrees to comply with the provisions
of California Labor Code Section 1813 concerning penalties for workers who work excess hours. Except as provided by Labor Code Section 1815, the CONTRACTOR shall, as a penalty to the CITY, forfeit twenty five dollars ($25) for each worker employed in the execution of the Contract by the CONTRACTOR or by any Subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 (commencing at Section 1810) of the California Labor Code.
7. TRAVEL AND SUBSISTENCE PAY :
CONTRACTOR agrees to pay travel and
subsistence pay to each worker needed to execute the work required by this CONTRACT as such travel and subsistence payments are defined in the applicable collective bargaining agreements filed in accordance with Labor Code Section 1773.8.
8. CONTRACTOR'S LIABILITY: Th
e CITY and its officers, agents and employees
(“Indemnitees”) shall not be answerable or accountable in any manner for any loss or damage that may happen to the work or any part thereof, or for any of the materials or other things used or employed in performing the work; or for injury or damage to any person or persons, either workers or employees of CONTRACTOR, of its subcontractors or the public, or for damage to adjoining or other property from any cause whatsoever arising out of or in connection with the performance of the work. CONTRACTOR shall be responsible for any damage or DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 9 Public Works Contract
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injury to any person or property resulting from defects or obstructions or from any cause whatsoever.
CONTRACTOR will indemnify Indemnities against and will hold and save Indemnitees harmless from any and all actions, claims, damages to persons or property, penalties, obligations or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision, or other organization arising out of or in connection with the work, operation, or activities of CONTRACTOR, its agents, employees, subcontractors or invitees provided for herein, whether or not there is concurrent passive negligence on the part of CITY . In connection therewith:
a. CONTRACTOR will defend any action or actions filed in connection with any such claims, damages, penalties, obligations or liabilities and will pay all costs and expenses, including attorneys' fees, expert fees and costs incurred in connection therewith.
b. CONTRACTOR will promptly pay any judgment rendered against CONTRACTOR or Indemnitees covering such claims, damages, penalties, obligations and liabilities arising out of or in connection with such work, operations or activities of CONTRACTOR hereunder, and CONTRACTOR agrees to save and hold the Indemnitees harmless therefrom.
c. In the event Indemnitees are made a party to any action or proceeding filed or prosecuted against CONTRACTOR for damages or other claims arising out of or in connection with the work, operation or activities hereunder, CONTRACTOR agrees to pay to Indemnitees and any all costs and expenses incurred by Indemnitees in such action or proceeding together with reasonable attorneys' fees.
CONTRACTOR'S obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, with out affecting the rights of CITY under any provision of this CONTRACT, Contractor shall not be required to indemnify and hold harmless CITY for liability attributable to the active negligence of CITY, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where CITY is shown to have been actively negligent and where CITY active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of City.
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So much of the money due to CONTRACTOR under and by virtue of the contract as shall be considered necessary by CITY may be retained by CITY until disposition has been made of such actions or claims for damages as aforesaid.
It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California.
This indemnity provision shall survive the termination of the CONTRACT and is in addition to any other rights or remedies which Indemnitees may have under the law.
This indemnity is effective without reference to the existence or applicability of any insurance coverage which may have been required under this CONTRACT or any additional insured endorsements which may extend to Indemnitees.
CONTRACTOR, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the CONTRACTOR regardless of any prior, concurrent, or subsequent passive negligence by the Indemnitees.
9. THIRD PARTY CLAIMS:
In accordance with Public Contracts Code Section 9201,
CITY will promptly inform CONTRACTOR regarding third -party claims against CONTRACTOR, but in no event later than ten (10) business days after CITY receives such claims. Such notification will be in writing and forwarded in accordance with the “Notice” section of this CONTRACT . As more specifically detailed in the contract documents, CONTRACTOR agrees to indemnify and defend the City against any third-party claim.
10. WORKERS COMPENSATION: In accordance with California Labor Code Sections 1860 and 3700, CONTRACTOR and each of its subcontractors will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, CONTRACTOR, by signing this contract, certifies as follows: “I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker's compensation or to undertake self -insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
11. INSURANCE: W
ith respect to performance of work under this CONTRACT, CONTRACTOR shall maintain and shall require all of its subcontractors to maintain insurance as required in the Standard Specifications.
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12. ASSIGNMENT: This CONTRACT is not assignable nor the performance of either party's duties delegable without the prior written consent of the other party. Any attempted or purported assignment or delegation of any of the rights of obligations of either party without the prior written consent of the other shall be void and of no force and effect.
13. INDEPENDENT CONTRACTOR: CONTRACTOR is and shall at all times remain as to the CITY, a wholly independent contractor. Neither the CITY nor any of its agents shall have control of the conduct of CONTRACTOR or any of CONTRACTOR'S employees, except as herein set forth. CONTRACTOR shall not at any time or in any manner represent that it or any of its agents or employees are in any manner agents or employees of CITY.
14. TAXES:
CONTRACTOR is responsible for paying all retail sales and use, transportation, export, import, special or other taxes and duties applicable to, and assessable against any work, materials, equipment, services, processes and operations incidental to or involved in this contract. CONTRACTOR is responsible for ascertaining and arranging to pay them. The prices established in the contract shall include compensation for any taxes CONTRACTOR is required to pay by laws and regulations in effect at the bid opening date.
15. LICENSES:
CONTRACTOR represents and warrants to CITY that it has all licenses, permits, qualifications, insurance, and approvals of whatsoever nature which are legally required of CONTRACTOR to practice its profession .
CONTRACTOR represents and warrants to CITY that CONTRACTOR shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this CONTRACT any licenses, permits, insurance, and approvals which are legally required of CONTRACTOR to practice its profession. CONTRACTOR shall maintain a City of Goleta business license, if required under CITY ordinance.
16. RECORDS: CONTRACTOR shall maintain accounts and records, including personnel, property, and financial records, adequate to identify and account for all costs pertaining to this CONTRACT and such other records as may be deemed necessary by CITY or any authorized representative, and will be retained for three years after the expiration of this CONTRACT . All such records shall be made available for inspection or audit by CITY at any time during regular business hours.
17. SEVERABILITY: If any portion of these contract documents are declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 12 Public Works Contract
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CONTRACT will continue in full force and effect provided that it does not frustrate the mutual intent of the parties herein.
18. WHOLE AGREEMENT : This CONTRACT supersedes any and all other agreements either oral or written, between the parties and contains all of the covenants and agreements between the parties pertaining to the work of improvements described herein. Each party to this contract acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that any other agreement, statements or promise not contained in this contract shall not be valid or binding. Any modifications of this contract will be effective only if signed by the party to be charged.
19. AUTHORITY:
CONTRACTOR affirms that the signatures, titles, and seals set forth hereinafter in execution of this CONTRACT represent all individuals, firm members, partners, joint ventures, and/or corporate officers having a principal interest herein. Each party warrants that the individuals who have signed this CONTRACT have the legal power, right, and authority to make this CONTRACT and to bind each respective party . This CONTRACT may be modified by writt en amendment. CITY’s City Manager may execute any such amendment on CITY’s behalf.
20. NOTICES: A
ll notices permitted or required under this CONTRACT shall be in writing, and shall be deemed made when delivered to the applicable party’s representative as provided in this CONTRACT. Additionally, such notices may be given to the respective parties at the following addresses, or at such other addresses as the parties may provide in writing for this purpose.
Suc
h notices shall be deemed made when personally delivered or when mailed forty-eight (48) hours after deposit in the U.S. mail, first-class postage prepaid, and addressed to the party at its applicable address. Courtesy copies of notices may be sent via electronic mail, provided that the original notice is deposited in the U.S. mail or personally delivered as specified in this Section.
CITY OF GOLETA
130 Cremona Drive, Suite B
Goleta, CA 93117
Attn: City Manager
CONTRACTOR
TORO ENTERPRISES, INC.
2101 E. Ventura Blvd.
Oxnard, CA 93036
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21. DISPUTES: Disputes arising from this contract will be determined in accordance with the contract documents.
22. NON-DI SCRIMINATION: No discrimination shall be made in the employment of persons in the work contemplated by this CONTRACT because of race, religion, color, medical condition, sex, sexual orientation, national origin, political affiliation or opinion, or pregnancy or pregnancy-related condition. A violation of this section exposes CONTRACTOR to the penalties provided for in Labor Code Section 1735.
23. NO THIRD PARTY BENEFICIARY: This CONTRACT and every provision herein is for the exclusive benefit of CONTRACTOR and CITY and not for the benefit of any other party . There will be no incidental or other beneficiaries of any of the CONTRACTOR’s or the CITY’s obligations under this Contract.
24. TIME IS OF ESSENCE: T ime is of the essence for each and every provision of the Contract Documents.
25. ACCEPTANCE OF FACSIMILE O R ELECTRONIC SIGNATURES: The Parties agree that this CONTRACT, agreements ancillary to this CONTRACT, and related documents to be entered into in connection with this CONTRACT will be considered signed when the signature of a party is delivered by facsimile transmission or scann ed and delivered via electronic mail . Such facsimile or electronic mail copies will be treated in all respects as having the same effect as an original signature.
26. GOVERNING LAW:
This CONTRACT shall be governed by the laws of the State of California, and exclusive venue for any action involving this CONTRACT will be in Santa Barbara County.
27. FEDERAL REQUIREMENTS
Community Development Block Grant (CDBG) financial assistance will be used to fund all or a portion of this project.
The Contractor shall comply with all federal requirements including, but not limited to, the following:
1. 2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference.
2. CDBG Contract Special Provisions attached hereto as Exhibit C and DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 14 Public Works Contract
TORO ENTERPRISES, INC.
incorporated herein by reference.
Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the contract, including but not limited to, 2 C.F.R. Part 200 and the Federal Contract Provisions.
With respect to any conflict between such federal requirements and the terms of this contract and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control.
IN WITNESS WHEREOF, the parties hereto have executed this CONTRACT with all the formalities required by law on the respective dates set forth opposite their signatures.
This CONTRACT is executed on this ________ day of ___________ , at Goleta , California, and effective as of _____ ______, 20____.
CITY OF GOLETA:
___________________________________
Robert Nisbet, City Manager
ATTEST:
___________________________________
Deborah Lopez, City Clerk
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
___________________________________
Scott Shapses, Deputy City Attorney
CONTRACTOR:
_____________________________________
Sean Castillo, President
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_____________________________________
Jerry Hannigan, Secretary
State of California License No. 710580
Department of Industrial Relations Registration
No. 1000002410
Business Phone No. 805-483-4515
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EXHIBIT A
NOTICE INVITING SEALED BIDS
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FOR THE
DEARBORN PLACE & ARMITOS AVENUE ADA IMPROVEMENT
PROJECT (PHASE II)
130 Cremona Drive, Suite B, City of Goleta, CA
PUBLIC NOTICE IS HEREBY GIVEN that the City of Goleta (“CITY”), invites sealed bids for the above stated project and will receive such bids via electronic transmission on the City of Goleta PlanetBids portal site until 3:00PM July 2 0, 2023 and will be publicly opened and posted promptly thereafter.
The work includes all labor, material, supervision, plant and equipment necessary to construct and deliver a finished Dearborn Place & Armitos Avenue ADA Improvement Project (Phase II). Work includes construction of asphalt paving, utility adjustments, traffic signal upgrades, communications infrastructure, and signing, striping and pavement delineation improvements. Please see the Project Plans titled Dearborn Place & Armitos Avenue ADA Improvement Project (Phase II), attached in Planetbids.
A Pre-Bid Meeting is not scheduled for this project.
A project manual, including all Contract Documents and the Proposal forms for bidding on this project, may be obtained on-line from the Planet Bids Website https://pbsystem.planetbids.com.
All communications relative to this project shall be conducted through Planet Bids.
Bidders must be registered on the City of Goleta’s PlanetBids portal in order to receive addendum notifications and to submit a bid. Go to PlanetBids for bid results and awards. It is the responsibility of the bidder to submit the bid with sufficient time to be received by PlanetBids prior to the bid opening date and time. Allow time for technical difficulties, uploading, and unexpected delays. Late or incomplete bids will not be accepted.
The bid must be accompanied by a bid security in the form of a money order, a certified cashier’s check, or bidder’s bond executed by an admitted surety, made payable to CITY.
The bid security shall be an amount equal to ten percent (10%) of the total annual bid amount included with their proposals as required by California law.
Note: All bids must be accompanied by a scanned copy of the bid security uploaded to PlanetBids. The original security of the three (3) lowest bidders must be mailed or submitted to the office of the City Clerk at 130 Cremona Drive, Suite B, Goleta, California 93117, in a sealed envelope and be received or postmarked within three DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 18 (3) City business days after the bid due date and time for the bid to be considered.
The sealed envelope should be plainly marked on the outside, “SEALED BID
SECURITY FOR DEARBORN PLACE & ARMITOS AVENUE ADA IMPROVEMENT PROJECT (PHASE II) .”
The Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations (DIR) per California Labor Code Section 1771.4, including prevailing wage rates and apprenticeship employment standards. Affirmative action to ensure against discrimination in employment practices on the basis of race, color, national origin, ancestry, sex, or religion will also be required. The CITY hereby affirmatively ensures that all business enterprises will be afforded full opportunity to submit bids in response to this notice and wi ll not be discriminated against on the basis of race, color, national origin, ancestry, sex, or religion in any consideration leading to the award of contract.
A contract may only be awarded to the lowest responsive and responsible bidder that holds a valid Class “A” Contractor’s license or specialty licensing in accordance with the provisions of the California Business and Professions Code.
All Bidders and Contractors, including subcontractors, shall have a current City business license before undertaking any work.
The successful Bidder will be required to furnish a Performance Bond and a Payment Bond each in an amount equal to 100% of the Contract Price. Each bond shall be in the forms set forth herein, shall be secured from a surety company that meets all State of California bonding requirements, as defined in Code of Civil Procedure Section 995.120, and that is a California admitted surety insurer.
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the DIR. No Bid will be accepted, nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the DIR to perform public work. If awarded a contract, the Bidder and its subcontractors, of any tier, shall maintain active registration with the DIR for the duration of the Project. Failure to provide proof of the contractor’s current registration pursuant to Labor Code Section 1725.5 may result in rejection of the bid as non-responsive.
Required Listing of Proposed Subcontractors: Each proposal shall list the name, address and Contractor license number of each subcontractor to whom the Bidder proposes to subcontract portions of the Work in an amount in excess of one-half of one percent (0.5%) of its total bid, in accordance with the Subletting and Subcontracting Fair Practices Act.
The Bidder’s attention is invited to other provisions of said Act related to the imposition of penalties for a failure to observe its provisions by using unauthorized subcontractors or by making unauthorized substitutions.
Noncollusion Declaration: Bidders shall submit a properly completed and executed “Noncollusion Declaration” conforming to the City’s “Noncollusion Declaration.” DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 19 Addenda: Proposals shall include all costs and account for all addenda issued prior to opening of bids. The Bidder is responsible for verifying that all issued addenda have been received. An addendum acknowledgment form for each addendum shall be included as part of the Proposal submittal.
Pursuant to Public Contract Code section 22300, the successful bidder may substitute certain securities for funds withheld by CITY to ensure performance under the Contract or, in the alternative, request the CITY to make payment of retention to an escrow agent.
Any protest to an intended award of this contract shall be made in writing addressed to the City Clerk prior to the award. Any protest may be considered and acted on by the City Council at the time noticed for award of the contract. To request a copy of the notice of agenda for award, please contact the City Clerk (805) 961-7505 or register on the CITY’s website (www.cityofgoleta.org).
_______________________________
City Clerk, City of Goleta
Published: June 29, 2023 and July 13, 2023
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EXHIBIT B
BID PROPOSAL
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EXHIBIT C
CDBG CONTRACT SPECIAL PROVISIONS
During the performance of this contract, Toro Enterprises, Inc. (the “Contractor”) shall comply with all applicable federal laws and regulations including but not limited to the CDBG contract special provisions in this Exhibit. In this Exhibit, the term “A gency” shall mean the local agency entering into this contract with the Contractor.
1.Definitions: For purposes of this Contract, the following terms shall have the meanings set forth below:
(a)“Assistance” means the CDBG grant funds provided, or to be provided, to the Grantee by the City, pursuant to the Grant Award Agreement.
(b)“CDBG” means Community Development Block Grant.
(c)“Contract” means the contractual agreement between the City and the Contractor to which these Contract Special Provisions have been incorporated and made a part there of.
(d)“Contractor” means the contractor whose services are retained pursuant to the Contract.
(e)“Grantee” means the unit of local government designated as the recipient of the Assistance in the Grant Award and signing the acceptance provision of the Grant Award.
(f)“HUD” means U.S. Department of Housing and Urban Development, which is the federal agency that awards and has authority over CDBG funding to the City.
(g)“City” means the Grantee or Subrecipient, as applicable.
(h)“Project” means the project for which the services of the Contractor have been retained pursuant to the Contract which are funded, in whole or in part, with CDBG funds.
(i)“Subrecipient” means the agent of the unit of local government as designated by an agreement.
(j)“Labor Surplus Area” means a civil jurisdiction that has an unemployment rate at least20% above the average unemployment rate for all states, the District of Columbia, and Puerto Rico during the previous two calendar years. The Department of Labor issues the labor surplus area list on a fiscal year basis.
2. Prime Contractor Responsibilities: The Contractor is required to assume sole responsibility for the complete effort and enforcement of laws and regulations under this Contract. The City will consider the Contractor to be the sole point of contact with regard to contractual matters. All contractors, including subcontractors must be registered in SAM and eligible to receive federal contracts.
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3. Federal and State Laws: The Contractor agrees to comply with all CDBG requirements as well as other federal and state laws, regulations, or Executive Orders. The City reserves the right to add or delete terms and conditions of this Contract as may be required by revisions and additions or changes in the requirements, regulations, and laws governing the CDBG Program.
4. Procurement and Contracting: In accordance with 2 CFR Part 200, the cost plus a percentage of cost and percentage of construction cost methods of contracting shall not be used. This provision shall supersede any conflicting provision in an executed contract document or agreement funded in whole or in part with CDBG funds.
5. Ownership: Ownership of all real or personal property, acquired in whole or in part with CDBG funds for use on this Project, shall be vested in the Grantee, unless otherwise authorized by the City. When the Grantee determines that the property is no longer required for the purposes of this Project, the Grantee must notify the City and obtain approval for disposition of the property in accordance with applicable guidelines.
6. Copyright: Except as otherwise provided in the terms and conditions of this Contract, the Contractor paid through this Contract is free to copyright any books, publications or other copyrightable materials developed in the course of the Project and under this Contract.
However, HUD and the City reserve a royalty -free, non-exclusive and irrevocable license to reproduce, publish or otherwise use and to authorize others to use, for Federal government and City purposes:
a. the copyright in any work developed under this Contract; and b. any rights of copyright to which a subcontractor purchases ownership with grant support.
The Federal government's rights and the City’s rights identified above must be conveyed to the publisher and the language of the publisher’s release form must insure the preservation of these rights.
7. Reporting Requirements: The Contractor agrees to complete and submit all reports, in such form and according to such schedule, as may be required by the City or HUD. Further, the Contractor agrees to require any subcontractors to submit reports that may be required and to incorporate such language in its agreements. Failure to meet deadlines with the required information could result in sanctions.
8. Access to Records: All records with respect to all matters covered by this Contract shall be made available at any time for audit and inspection by HUD, the City or the Grantee or their representatives upon their request.
9. Maintenance of Records: Records for non-expendable property purchased totally or partially with Federal funds must be retained for five years after final close-out of the grant.
All other pertinent contract records including financial records, supporting documents and DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 43 Public Works Contract
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statistical records shall be retained for a minimum of five years after the final close-out report.
However, if any litigation, claim, or audit is started before the expiration of the five-year period, then records must be retained for five years after the litigation, claim or audit is resolved.
10. Confidential Information: Any reports, information, data, etc., given to, prepared by, or assembled by the Contractor under this Contract, which the Grantee or the City requests to be kept confidential, shall not be made available to any individual or organization by the Contractor without prior written approval of the Grantee or the City, as applicable.
11. Reporting of Fraudulent Activity: If at any time during the term of this Contract anyone has reason to believe by whatever means that, under this or any other program administered by the City, a recipient of funds has improperly or fraudulently applied for or received benefits, monies or services pursuant to this Contract or any other contract, such information shall be reported immediately to the appropriate authorities.
12. Conflicts of Interest and Ethical Standards:
The following provisions regarding “conflicts of interest” apply to the use and expenditure of CDBG funds by the Grantee and its subrecipients, including the Contractor.
In cases not governed by the above, such as the acquisition and disposition of real property and the provision of CDBG assistance to individuals, businesses and other private entities, the following provisions shall apply.
Except for eligible administrative or personnel costs, the general rule is that no person who is an employee, agent, consultant, officer, or elected or appointed official of the City or a unit of general local government or any designated public agencies or subrecipient which are receiving CDBG funds who exercise or have exercised any function or responsibilities with respect to CDBG activities assisted herein or are in a position to participate in a decision making process or gain inside information with regard to such activities, may obtain a financial interest or benefit from the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder either for themselves or those with whom they have family or business ties during their tenure or for one year thereafter.
Exceptions may be granted by the City on a case-by -case basis as requested upon full disclosure in writing. The City may undertake any administrative remedies it deems appropriate, where there is a breach of ethical standards or conflict of interest under the regulations governing the CDBG Program and the City policies.
13. Applicable Law: In addition to the applicable Federal laws and regulations, this Contract is also made under and shall be construed in accordance with the laws of the State. By execution of this Contract, the Contractor agrees to submit to the jurisdiction of the City for all matters arising or to arise hereunder, including but not limited to performance of said Contract and payment of all licenses and taxes of whatever kind or nature applicable hereto.
14. Limitation of Liability: The Contractor will not assert in any legal action by claim or defense, or take the position in any administrative or legal procedures that he is an agent or employee of the City. This provision is not applicable to contracts for CDBG administration services where the Contractor is a Council of Government. The City shall not be liable for failure on the part of the Grantee or any other party to perform all work in accordance with all DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 44 Public Works Contract
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applicable laws and regulations. The Grantee agrees to defend, indemnify, and hold harmless the City from and against all claims, demands, judgments, damages, actions, causes of actions, injuries, administrative orders, consent agreement and orders, liabilities, penalties, costs, and expenses of any kind whatsoever, including, without limitation, claims arising out of loss of life, injury to persons, property, or business or damage to natural resources in connection with the activities of the Grantee and any other third parties in a contractual relationship with the Grantee, or a subsidiary, whether or not occasioned wholly or in part by any condition, accident, or event caused by any act or omission of the City as a result of the Assistance.
15. Legal Services: No attorney -at-law shall be engaged through the use of any funds provided under this Contract in any legal action or proceeding against the City, the Grantee, any local public body or any political subdivision.
16.Contract: If any provision in this Contract shall be held to be invalid or unenforceable, the remaining portions shall remain in effect. In the event such invalid or unenforceable provision is considered an essential element of this Contract, the parties shall promptly negotiate a replacement provision, which addresses the intent of such provision.
17. Amendments: Any changes to this Contract affecting the scope of work of the Project must be approved, in writing, by the City and the Contractor and shall be incorporated in writing into this Contract. Any amendments of the original contract must have written approval by the City prior to execution.
18.Termination for Convenience: This Contract may be terminated for convenience in accordance with 2 CFR Part 200.
19. Sanctions: If the Contractor fails or refuses to comply with the provisions set forth herein, the City may take any or all of the following actions: cancel, terminate or suspend in whole or in any part the contract, or refrain from extending any further funds to the Contractor until such time as the Contractor is in full compliance.
20. Subcontracting: If any part of the work covered by this Contract is to be subcontracted, the Contractor shall identify the subcontracting organization and the contractual arrangements made therewith to the City. All subcontracts must be approved by the City to insure they are not debarred or suspended by the Federal or State governments and to insure the City understands the arrangements.
21.Subcontracting with Small and Minority Firms, Women’s Business Enterprise and Labor Surplus Areas: It is national policy to award a fair share of contracts to disadvantaged business enterprises (DBEs), small business enterprises (SBEs), minority business enterprises (MBEs) and women’s business enterprises (WBEs). Accordingly, aff irmative steps must be taken to assure that DBEs, SBEs, MBEs and WBEs are utilized when possible as sources of supplies, equipment, construction and services. Affirmative steps shall include the following:
(a) Including qualified DBEs, SBEs, MBEs and WBEs on solicitation lists; DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 45 Public Works Contract
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(b) Assuring that DBEs, SBEs, MBEs and WBEs are solicited whenever they are potential sources;
(c) Whenever economically feasible, dividing total requirements into smaller tasks or quantities so as to permit maximum participation by DBEs, SBEs, MBEs and WBEs; (d) Where the requirement permits, establishing delivery schedules which will encourage participation by DBEs, SBEs, MBEs and WBEs;
(e) Using the services and assistance of the Small Business Administration, Minority Business Development Agency, the State Office of Small and Minority Business Assistance, the U.S. Department of Commerce and the Community Services Administration as required; and
(f) Requiring the subcontractor, if any, to take the affirmative actions outlined in (1) – (5) above.
22.Debarment Certification: The Contractor must comply with Executive Orders 12549 and12689 regarding Federal debarment and suspension regulations prior to entering into a financial agreement for any transaction as outlined below:
(a) Any procurement contract for goods and services, regardless of type, expected to equal or exceed the Federal procurement small purchase threshold (which is $100,000 and is cumulative amount from all federal funding sources).
(b) Any procurement contract for goods and services, regardless of amount, under which the Contractor will have a critical influence on or substantive control over the transaction.
In addition, no contract may be awarded to any contractors who are ineligible to receive contracts under any applicable regulations of the City.
24.Equal Employment Opportunity: The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the City.
In carrying out the Project, the Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor must take affirmative action to insure that applicants for employment are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this non-discrimination clause. The Contractor shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. The Contractor will, in all solicitations or advertisements for employees by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.
The Contractor shall incorporate the foregoing requirements of this paragraph in all of its subcontracts for the Project unless exempted by rules, regulations, or orders of the City DocuSign Envelope ID: B3AABE04-1839-4700-8EBF-7074669252F5 46 Public Works Contract
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issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor.
The Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided by the City advising the said labor union or workers’ representatives of the Contractor’s commitment under this Section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the City, or pursuant thereto, and will permit access to its books, records, and accounts by HUD and the City for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
In the event of the Contractor's noncompliance with the non-discrimination clauses of this Contract or with any of such rules, regulations, or orders, this Contract may be canceled, terminated or suspended in whole or in part and the Contractor may be declared ineligible for further City government contracts or federally assisted construction contract procedures authorized in Executive Order 11246 of September 24, 1965, or by rules, regulations, or orders of the City, or as otherwise provided by law.
25. Age Discrimination: In accordance with 45 CFR, Parts 90 and 91, the Contractor agrees there shall be no bias or age discrimination as to benefits and participation under this Contract.
26. Section 109 of the Housing and Community Development Act of 1974: No person in the United States shall on the grounds of race, color, national origin or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under the CDBG program of the City.
27. Section 504 of the Rehabilitation Act of 1973, as amended: The Contractor agrees that no otherwise qualified individual with disabilities shall, solely by reason of his disability, be denied the benefits, or be subjected to discrimination including discrimination in employment, any program or activity that receives the benefits from the Assistance.
28. Section 3, Compliance and Provision of Training, Employment and Business Opportunities: The work to be performed under this Contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, (12 USC § 1701u). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by Section 3 shall, to the greatest extent feasible be directed to low and very low-income persons, particularly persons who are recipients of HUD assistance for housing.
The parties to this said Contract agree to comply with HUD's regulations in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this Contract, the parties to this Contract certify that they are under no contractual or other impediment that would prevent them from complying with the 24 CFR Part 135 regulations.
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The contractor agrees to send to each labor organization or representative of workers with which the Contractor has a collective bargaining agreement or other understanding, if any, a notice advising the organization or workers’ representative of the contractor’s commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions; the qualifications for each; and the name and location of person(s) taking applications for each of the positions; and the anticipated date the work shall begin. The Contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR Part 135. The Contractor will not subcontract with any subcontractor where the Contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135.
The Contractor will certify that any vacant employment positions including training positions, that are filled (1) after the Contractor is selected but before this Contract has been executed, and (2) with persons other than those to whom the regulations of 24 CFR Part 135 require employment opportunities to be directed, were not filled to circumvent the Contractor's obligations under 24 CFR Part 135.
The Contractor agrees to submit such reports as required to document compliance with 24 CFR Part 135. Noncompliance with the regulations in 24 CFR Part 135 may result in sanctions, termination of this Contract for default, and debarment or suspension from future HUD assisted contracts.
29. Lead-Based Paint: The construction or rehabilitation of residential structures with any portion of the Assistance is subject to the HUD Lead-Based Paint regulations found at 24 CFR Part 35. Any grants or loans made by the Grantee for the rehabilitation of residential structures with any portion of the Assistance shall be made subject to the provisions for the elimination of lead-base paint hazards under subpart B of said regulations, and the Grantee shall be responsible for the inspections and certifications required under Section 35.14(f) thereof.
30.Compliance with Air and Water Acts: (Applicable to construction contracts and related subcontracts exceeding $100,000) This Contract is subject to the requirements of the Clean Air Act, as amended, 42 USC § 7401 et seq., the Federal Water Pollution Control Act (Clean Water Act), as amended, 33 USC § 1251 et seq., and the regulations of the Environmental Protection Agency with respect to 40 CFR Part 15, as amended from time to time. In particular, the following are required:
(a) A stipulation by the Contractor or subcontractor that any facility to be utilized in the performance of any nonexempt contract or subcontract is not listed on the List of Violating Facilities, issued by the Environmental Protection Agency (EPA) pursuant to 40 CFR § 15.20.
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(b) Agreement by the Contractor to comply with all the requirements of Section 114 of the Clean Air Act, as amended (42 USC § 7414) and Section 308 of the Federal Water Pollution Control Act, as amended (33 USC § 1318) relating to inspection, monitoring, entry, reports and information, as well as all other requirements specified in said Sections 114 and 308, and all regulations and guidelines issued thereunder.
(c) A stipulation that as a condition of award of contract prompt notice will be given of any notification received from the Director, Office of Federal Activities, EPA, indicating that a facility utilized or to be utilized for the contract under consideration is to be listed on the EPA list of Violating Facilities.
(d) Agre ement by the Contractor that the Contractor will include or cause to be included the criteria and requirements in these subparagraphs (1) through (4), in every nonexempt subcontract and requiring that the Contractor will take such action as the City may direct as a means of enforcing such provisions.
In no event shall any amount of the Assistance be utilized with respect to a facility which has given rise to a conviction under section 113(c)(1) of the Clean Air Act or Section 309(c) of the Federal Water Pollution Control Act.
31.Federal Labor Standards Provisions: (Applicable to construction contracts in excess of $2,000 or residential rehabilitation contracts involving more than eight units)
The Project or program to which the construction work covered by this Contract pertains is being assisted by the United States of America and the Federal Labor Standards Provisions as set forth on Attachment 1 are included in this Contract pursuant to the provisions applicable to such Federal assistance. These provisions must be complied with or sanctions will be instituted.
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