ACTION:
____________________________
Clerk/Secretary
Department: Engineering Item No: C7
Prepared by:
Erin Adams, Management Analyst
Matt Atteberry, Engineering Division
Manager Meeting Date: November 14, 2023
Approved by:
Greg Mayer, Acting Department Director
John Conley, City Manager Agenda Location: Consent Calendar SUBJECT: CIP 8197: BOBLINK STORM DRAIN PROJECT PHASE 1 – AWARD OF CONTRACT RECOMMENDATIONS:
1. Adopt City Council Resolution No. 2023- , awarding a construction contract to In the Dirt Engineering for the Bobolink Storm Drain Project Phase 1 (CIP No. 8197).
2. Adopt City Council Resolution No. 2023- , amending the Capital Project Budget for Fiscal Years 2022/23 and 2023/24.
CORRELATION TO CITY COUNCIL GOALS: Fiscal Responsibility, and Climate and Environmental Responsibility.
PRIOR ACTION: On June 28, 2022, adopted City Council Resolution No. 2022-108, approving a Six-Year Capital Improvement Program and FYs 2022/23 and 2023/24 Capital Project Budget and authorizing appropriations for Fiscal Years 2022/23 and 2023/24 Capital Projects (Vote: 4-0, Ritter absent (Ritter experienced technical difficulties)).
STATEMENT ON THE SUBJECT: Capital Improvement Project (CIP) No. 8197, Bobolink Storm Drain Project Phase 1, was created to install a storm drain from North Avenue to East Avenue. The area receives significant overland storm water flow from average rain events. By installing a storm drain at this location, the surface flows will be directed to the storm drain pipe network underground and will greatly reduce the ponding of water at the future roundabout being installed with the Townsite Complete Street Project.
The project was phased to allow for San Diego Gas & Electric (SDG&E) to perform gas and electric line relocations that are in conflict with the proposed storm drain alignment for Phase 2. Future Phase 2 will install additional storm drain infrastructure under a separate contract from East Avenue up Bobolink Drive to complete the system.
Staff advertised the project for competitive bids on September 25, 2023, on the City’s procurement website and online procurement portal, OpenGov. On October 17, 2023, the following 2 bids were received:
AGENDA
REPORT
CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
SUCCESSOR AGENCY
BUENA SANITATION DISTRICT
JOINT POWERS FINANCING AUTHORITY
Approved above recommendation, adopted the following: 1) City Council Resolution No. 2023-191.
Vote: 5-0; 2) City Council Resolution No. 2023-192. Vote: 5-0.
MEETING DATE: November 14, 2023 PAGE 2
SUBJECT: CIP 8197: BOBLINK STORM DRAIN PROJECT PHASE 1 – AWARD OF CONTRACT Bidder’s Name Office Location Total Bid Amount
In the Dirt Engineering Ramona, CA $977,849.65
SRK Engineering Escondido, CA $1,122,875.00
On October 26, 2023, SRK Engineering submitted a bid protest stating that the apparent low bidder, In the Dirt Engineering, listed project references that were of insufficient size and complexity to meet experience requirements. Project experience requirements are related to a bidder’s responsibility and not toward bid responsiveness because they are used by the City to determine whether the bidder can manage and complete the proposed project. City staff, in consultation with the City Attorney’s Office, reviewed the apparent low bid, including the project references, and determined that In the Dirt Engineering has demonstrated satisfactory project experience. Therefore, staff recommends that the City Council reject the bid protest (Exhibit 5).
Staff has reviewed the bid of $977,849.65 from In the Dirt Engineering and has determined that they are the lowest responsible bidder who responded to all the requirements of the bid request. Therefore, staff recommends that the City Council award the contract for the Bobolink Storm Drain Project Phase 1 (CIP No. 8197) to In the Dirt Engineering.
FISCAL IMPACT: The construction contract is $977,849.65, with a 10 percent contingency for a total budget of $1,075,634.62. Approval of the staff recommendation will also amend the Capital Project Budget for Fiscal Years 2022/23 and 2023/24 by transferring American Rescue Plan Act (ARPA) funds from the Small Diameter Storm Drain Plan (CIP No. 8239) to Bobolink Storm Drain Project (CIP No. 8913) in order to track expenses for this project. The bid was advertised with legacy project code 8197.
Internally, staff will be using project code 8913 to track ARPA funded expenses associated with the project in our financial system.
EXHIBITS:
1.City Council Resolution 2023- , awarding a construction contract to In the Dirt Engineering for the Bobolink Storm Drain Project Phase 1 (CIP No. 8197)
2.City Council Resolution 2023- , amending the Capital Project Budget for Fiscal Years 2022/23 and 2023/24
3.Contract with In the Dirt Engineering
4.Bid Documents
5.Bid Protest Response
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00029213 7
RESOLUTION NO. 2023-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF
VISTA, CALIFORNIA, AWARDING A CONSTRUCTION CONTRACT TO IN
THE DIRT ENGINEERING FOR THE BOBLINK STORM DRAIN PROJECT PHASE 1 (CIP NO. 8197)
The City Council of the City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. The City solicited bids for the Bobolink Storm Drain Project Phase 1 (CIP No. 8197) and on October 17, 2023 public bids for construction were opened and In The Dirt Engineering was the lowest bidder.
B. On October 26, 2023, SRK Engineering submitted a bid protest. City Staff and the City Attorney’s Office evaluated the protest and recommend its rejection.
C. Staff determined that the bid submitted by In The Dirt Engineering is responsive in all material aspects to the request for bids, and that the bid from In The Dirt Engineering for the construction of the Bobolink Storm Drain Project Phase 1 has been determined to be the lowest responsive, responsible bid.
2. Action.
A. The contract between the City of Vista and In The Dirt Engineering for the Bobolink Storm Drain Project Phase 1 is approved, and the Mayor is authorized to execute the contract.
B. The bid protest of SRK Engineering is rejected.
3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on November 14, 2023, by the following vote:
AYES:
NOES:
ABSTAIN:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
APPROVED
Walter C. Chung
20231103160559
JOHN B. FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
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EXHIBIT 1
00029213 7
RESOLUTION NO. 2023-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF
VISTA, CALIFORNIA, AMENDING THE CAPITAL PROJECT BUDGET FOR FISCAL YEARS 2022/23 AND 2023/24
The City Council of the City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. On June 28, 2022, the City Council adopted Resolution 2022-108 approving the Six-Year Capital Improvement Program, the Capital Project Budget for Fiscal Years 2022/23 and 2023/24, and authorizing appropriations for Fiscal Years 2022/23 and 2023/24 capital projects.
B. The City Council desires to amend the Capital Project Budget at this time to reflect changed circumstances.
2. Action.
A. The Capital Project Budget for Fiscal Years 2022/23 and 2023/24 is amended as set forth in Exhibit A.
3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on ________________________, by the following vote:
AYES:
NOES:
ABSTAIN:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
APPROVED
Walter C. Chung
20230731113809
JOHN FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
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EXHIBIT 2
RESOLUTION NO. 2023-
CITY COUNCIL FOR THE CHARTERED CITY OF VISTA
PAGE 1 EXHIBIT A
1. Account Number Account Description Increase Decrease 1516302.578999.8239 Source Appropriation 1,200,000$
1516302.578999.8913 Source Appropriation 1,200,000$
Appropriations are hereby made to fund the Bobolink Storm Drain Project Phase 1. 11/14/2023 C7 5 of 41
SUMMARY CONST – COV FED CDBG Page 1 of 3 IN THE DIRT ENGINEERING [00064029-1] {00112044 1}
CONSTRUCTION CONTRACT
THIS CONTRACT is made and entered into as of _____________________________ (“Contract Date”), by and between the City of Vista, a chartered municipal corporation (“Agency”), and In The Dirt Engineering, a California corporation (“Contractor”). Agency and Contractor are sometimes individually referred to as a “Party” and collectively as “Parties.” In consideration of the mutual covenants contained herein, Agency and Contractor agree as follows:
SECTION 1
The Contract Documents consisting of the PROJECT SPECIFICATIONS, comprised of the NOTICE INVITING BIDS, the INSTRUCTIONS TO BIDDERS, the accepted BID PROPOSAL; BID SCHEDULE; CONTRACTOR’S LICENSING STATEMENT; PROJECT REFERENCES; CONTRACTOR’S LIST OF SUBCONTRACTORS; CONTRACTOR’S CERTIFICATION ON FEDERAL CONTRACT REQUIREMENTS; CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND OTHER RESPONSIBILITY MATTERS;
DISCLOSURE OF LOBBYING ACTIVITIES AND INSTRUCTIONS FOR COMPLETION OF SF- LLL, DISCLOSURE OF LOBBYING ACTIVITIES; EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATION; NON-SEGREGATED FACILITIES CERTIFICATION; NON-LOBBYING CERTIFICATION FOR FEDERAL-AID CONTRACTS; NON-COLLUSION DECLARATION (Federal Form); ; BID SECURITY FORM (WITH BID BOND, CASH, CERTIFIED CHECK OR CASHIER’S CHECK INCLUDED); the CONSTRUCTION CONTRACT, PAYMENT BOND, CONTRACTOR’S CERTIFICATE, SUPPLEMENTARY GENERAL PROVISIONS, SUPPLEMENTARY TECHNICAL PROVISIONS, Special Provisions, Plans, Standard Plans and Specifications; together with all additions, deletions, modifications, appendices, and all addenda (No. 1), as prepared prior to the date of bid opening setting forth any modifications or interpretations of any said documents, are hereby incorporated in and made a part of this Contract as fully as if set forth herein.
SECTION 2
For and in consideration of the payments and agreements to be made and performed by the Agency as set forth in said Contract Documents, the Contractor agrees with the Agency to construct
BOBOLINK STORM DRAIN PROJECT PHASE I (CIP NO. 8197)
as specifically set forth in documents entitled
BOBOLINK STORM DRAIN PROJECT PHASE I (CIP NO. 8197)
for which award of the Contract was made, to furnish at his own proper cost and expense all plant, labor, services, materials, tools, equipment, supplies, transportation, utilities and all other items and facilities necessary therefore, as provided in the Contract Documents, and to do everything required therein. In accordance with the provisions of Section 3700 of the Labor Code, the Contractor will be required to secure the payment of Worker’s Compensation Insurance for its employees.
11/14/2023 C7 6 of 41EXHIBIT 3
SUMMARY CONST – COV FED CDBG Page 2 of 3 IN THE DIRT ENGINEERING [00064029-1] {00112044 1}
SECTION 3
For furnishing all said services and materials, payment of premiums on insurance policies, obtaining all permits and licenses of a temporary nature, furnishing and removing all plant, temporary work or structures, tools, and equipment, and for doing all the Work contemplated and embraced in this Contract, also for all loss and damage arising out of the nature of the aforesaid work during its progress or prior to acceptance from the action of the elements and from any unforeseen difficulties which may arise or be encountered in the prosecution of the Work, and for all other risks of any description connected with the Work, also for all expenses incurred by or in consequence of the suspension or discontinuance of work, except such as in the said Contract Documents are expressly stipulated to be borne by the Agency, and for well and faithfully completing the Work and the whole thereof within the stipulated time and in the manner shown and described in the said documents, and in accordance with the requirements of the Engineer under them, the Agency will pay, and the Contractor shall receive in full compensation therefore, the prices set forth by him in the accepted bid. The total compensation will be computed on the basis of the units of work actually performed in accordance with the requirements of the Contract Documents and paid for at the stipulated prices named in the BID SCHEDULE for completion of the Work.
SECTION 4
The Agency hereby promises and agrees with the said Contractor to employ, and does hereby employ the said Contractor to provide the materials and to do the Work according to the terms and conditions herein contained and referred to, for the price aforesaid, and hereby contracts to pay the same at the time, in the manner, and upon the conditions set forth in the Contract Documents, and the Parties for themselves, their heirs, executors, administrators, successors and assigns do hereby agree to the full performance of the covenants herein contained.
SECTION 5
Contractor agrees to indemnify, defend, and save harmless, the Agency, its officers, agents, employees and volunteers from and against any and all claims, demands, damages, losses and expenses, defense costs including attorney fees, or liability of any kind or nature which the Agency, its officers, agents and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property as a result of, arising out of, or in any manner connected with the Contractor’s performance under the terms of this Contract, caused in whole or in part by any negligent or willful acts or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of the Agency.
SECTION 6
Contractor agrees that the Payment Bond and Performance Bond attached to/submitted concurrently with this Contract are for reference purposes only, and shall not be considered a part of this Contract. Contractor further agrees that said bonds are separate obligations of the Contractor and its surety, and that any attorneys’ fee provision contained in any payment bond or performance bond shall not apply to this Contract. In the event there is any litigation between the Parties arising from the breach of this Contract, each Party will bear its own attorneys’ fees in the litigation.
11/14/2023 C7 7 of 41
SUMMARY CONST – COV FED CDBG Page 3 of 3 IN THE DIRT ENGINEERING [00064029-1] {00112044 1}
SECTION 7
Contractor agrees to abide by all required contract provisions of federal-aid construction contracts per Exhibit A, which is hereby incorporated in and made a part of this Contract as fully as if set forth herein. Contractor agrees to pay generally prevailing wages per the Federal Prevailing Wage Rate Determination as provided in Exhibit B or pursuant to California law (8 CCR § 16001) where California prevailing wage rates are higher than the applicable federal rate.
IN WITNESS WHEREOF, the Parties have caused this Contract to be executed as of the Contract Date.
CITY OF VISTA, a chartered municipal
corporation
By:
JOHN B. FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
RISK MANAGEMENT REVIEW:
DOLORES GASCON, RISK MANAGER
By:
IN THE DIRT ENGINEERING, a California
corporation
By:
Name/Title
By:
Name/Title
APPROVED
Amanda L. Guy
20231101143554
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Bobolink Storm Drain Project (CIP No. 8197)
In The Dirt Engineering
Line Item Description Quantity Unit of Measure Unit Cost Total 1 Mobilization & Demobilization
(5% maximum of Total Base Bid)1 LS $45,000.00 $45,000.00 2 Project Information Sign 1 EA $4,000.00 $4,000.00
3 Public Notification per Supplementary General
Provisions, Section 7-12.2 1 LS $2,500.00 $2,500.00
4 Storm Water Pollution Prevention and Erosion
Control 1 LS $40,000.00 $40,000.00
5 Traffic Control, Construction Staging, and Steel
Trench Plate Covers 1 LS $50,000.00 $50,000.00
6 Utility Potholing 1 LS $25,000.00 $25,000.00
7 Coordinate with SDG&E and VID with any 1 LS $5,000.00 $5,000.00 8 Trench Excavation Plan, Sheeting, Shoring and
Bracing 1 LS $50,000.00 $50,000.00
9 Dewatering Measures 1 LS $20,000.00 $20,000.00
10 Unforeseen Field Conditions (stipulated amount
$25,000)1 LS $25,000.00 $25,000.00
11 Record Drawing (“As-Built”) Plans (stipulated
amount $1,500)1 LS $1,500.00 $1,500.00
12 Remove and dispose of existing AC Dike (Berm)215 LF $46.51 $9,999.65 13 Remove and dispose of existing wood post
chain-link fence 90 LF $30.00 $2,700.00
14 Remove and dispose of existing wood
barricade with six warning signs 40 LF $62.50 $2,500.00 15 Remove and replace existing Vehicle Speed
Feedback Sign 1 LS $1,500.00 $1,500.00
16 Remove and dispose existing Flash Flood Area
sign and pole 1 EA $300.00 $300.00
17 Remove and replace residential mailbox 3 EA $750.00 $2,250.00 18 Remove and dispose existing metal grated
inlet at end of concrete cross gutter that
connects to existing 18” HDPE storm drain 1 LS $5,000.00 $5,000.00 19 Remove and dispose existing 18” HDPE storm
drain 180 LF $220.00 $39,600.00
20 Remove and dispose existing CMP riser 1 LS $2,000.00 $2,000.00 21 2’ Trench Bottom Over Excavation 360 LF $50.00 $18,000.00 22 26’ Type ‘B’ curb inlet per SDRSD No. D-02
including stencil and Local Depressions on
both sides 1 EA $17,500.00 $17,500.00
23 5’ Type ‘B’ curb inlet per SDRSD No. D-02
including stencil 3 EA $10,000.00 $30,000.00
24 Modified Type ‘A-7’ storm drain cleanout per
SDRSD No. D-09, 6.5’x7.0’2 EA $12,500.00 $25,000.00
25 18” (2000-D minimum) reinforced concrete
storm drain pipe (RCP) per modified CofV
Standard Drawing DRN-02 Detail A 100 LF $1,050.00 $105,000.00 11/14/2023 C7 33 of 41
Bobolink Storm Drain Project (CIP No. 8197)
In The Dirt Engineering
26 48” (2000-D minimum) reinforced concrete
storm drain pipe (RCP) per modified CofV
Standard Drawing DRN-02 Detail A 280 LF $1,550.00 $434,000.00 27 48” RCP temporary plug for Phase II 1 EA $5,500.00 $5,500.00 28 5’ Chain-link fence with 4x4 wood poles to
match the fence that was removed 90 LF $100.00 $9,000.00 Total $977,849.65
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CITY OF VISTA Page 1 of 2 IN THE DIRT ENGINEERING
{00112046 1} [00065304 3] PAYMENT BOND (LABOR & MATERIALS) Bond No.
Premium: $
Effective Date:
PAYMENT BOND
(LABOR AND MATERIALS)
KNOW ALL PERSONS BY THESE PRESENTS that:
The City of Vista (“City”) has awarded a contract (the “Contract”) to In The Dirt Engineering (“Principal”) as follows:
Bobolink Storm Drain Project – Phase 1 (CIP No. 8197),
which Contract, and all Contract Documents set forth therein, are incorporated herein and made a part thereof by this reference.
Principal is required under the terms of the Contract and the California Civil Code to furnish a bond to secure the prompt, full, and faithful payment of any Claimant, as hereinafter defined, for all labor, materials or services used or reasonably required for use in the performance of the work, concurrently with delivery to City of the signed Contract.
NOW, THEREFORE, we, the undersigned Principal, and
,
(Name, address, and telephone number of Surety)
(“Surety”) a duly admitted surety insurer under the laws of the State of California, as Surety, are held and firmly bound unto City in the penal sum of Nine Hundred Seventy Seven Thousand Eight Hundred Forty Nine Dollars and Sixty Five Cents ($977,849.65), this amount being not less than one hundred percent (100%) of the total contract price, in lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if the hereby bounded Principal, his, her or its heirs, executors, administrators, successors or assigns, or subcontractors shall fail to pay any of the persons named in Division 4, Part 6, Title 3 of the California Civil Code (§ 9000 et seq.), or any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, with respect to work or labor performed under the Contract (“Claimants”), Surety will pay for the same in an amount not exceeding the penal sum specified in this bond; otherwise, this obligation shall become null and void.
This bond shall inure to the benefit of any of the persons named in Division 4, Part 6, Title 3 of the California Civil Code (§ 9000 et seq.), so as to give a right of action to such persons or their assigns in any suit brought upon the bond.
In case suit is brought upon this bond to enforce or interpret this bond’s terms, Surety further agrees to pay all court costs and reasonable attorneys’ fees in an amount fixed by the court. Principal and Surety agree that this Performance Bond shall not be considered a part of the Contract but rather is a separate obligation of Principal and its Surety, and that any attorneys’ fee provision contained in this Performance Bond shall not apply to the Contract.
In the event there is any litigation between the parties arising from the breach of the Contract, each party will bear its own attorneys’ fees in the litigation.
FURTHER, Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, addition or modification to the terms of the Contract, or of the work to be performed thereunder, or the specifications for the same, shall in any way affect its obligations under this bond, and it does hereby waive notice of any such change, extension of time, alteration, addition, or modification to the terms of the Contract or to the work or to the specifications thereunder. Surety hereby waives the provisions of California Civil Code §§ 2819, 2845, and 2849.
City is an intended beneficiary of this bond and has all rights of a party thereto.
IN WITNESS WHEREOF, this instrument has been duly executed by Principal and Surety, on the date set forth 11/14/2023 C7 35 of 41
CITY OF VISTA Page 2 of 2 IN THE DIRT ENGINEERING
{00112046 1} [00065304 3] PAYMENT BOND (LABOR & MATERIALS) below, the name of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body.
Dated:
“Principal”
IN THE DIRT ENGINEERING
By: Signature
Name and Title
By: Signature
Name and Title
(Seal)
“`Surety”
By: Signature
Name and Title
By: Signature
Name and Title
(Seal)
This bond must be dated, all signatures must be notarized, and evidence of the authority of any person signing as attorney-in-fact must be attached.
APPROVED
Amanda L. Guy
20231101144443
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CITY OF VISTA Page 1 of 3 IN THE DIRT ENGINEERING
{00112048 1} [00065305 3] PERFORMANCE BOND (FAITHFUL PERFORMANCE) Bond No.
Premium: $
Effective Date:
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS that:
The City of Vista (“City”) has awarded a contract (the “Contract”) with In The Dirt Engineering (“Principal”) as follows:
Bobolink Storm Drain Project – Phase 1 (CIP No. 8197),
which Contract, and all Contract Documents set forth therein, are incorporated herein and made a part thereof by this reference.
Principal is required under the terms of the Contract to furnish a bond guaranteeing the prompt, full, and faithful performance of the Contract concurrently with delivery of the signed Contract to City.
NOW, THEREFORE, we, the undersigned Principal, and
,
(Name, address, and telephone number of Surety)
(“Surety”) a duly admitted surety insurer under the laws of the State of California, as Surety, are held and firmly bound unto City in the penal sum of Nine Hundred Seventy Seven Thousand Eight Hundred Forty Nine Dollars and Sixty Five Cents ($977,849.65), this amount being not less than one hundred percent (100%) the total contract price, in lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if the hereby bounded Principal, his, her or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform all the undertakings, terms, covenants, conditions and agreements in the Contract and any alteration thereof made as therein provided, on Principal’s part to be kept and performed, all within the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and hold harmless City and its officers, agents, and others as therein provided, from any and all losses, liability and damages, claims, judgments, stop payment notices, costs, and fees of every description, whether imposed by law or equity, which may be incurred by City by reason of the failure or default on the part of Principal in the performance of any or all of the terms or the obligations of the Contract Documents, as they may be amended and supplemented including, but not limited to, Principal’s liability for City’s damages (including direct and consequential damages incurred by City for: rental expenses; losses of use, income, profit, business, and reputation; increased financing costs; and loss of management or employee productivity or of the services of such persons) caused by Principal’s delays, as well as Principal’s liability for other delay damages or liquidated damages, and any warranties or guarantees required thereunder; then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect.
When City declares that Principal is in default under the Contract, Surety shall promptly, take one of the following actions:
(a) Remedy the default;
(b) Undertake through its agents or independent contractors reasonably acceptable to City, to complete the Project according to the Contract Documents’ terms and conditions then in effect including without limitation, all obligations with respect to warranties, guarantees, and the payment of liquidated damages; or, if required by City; (c) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions using a procurement methodology approved by City, select a contractor or contractors — acceptable to City — to complete all of the Work, and arrange for a contract between the contractor(s) and City, to be secured with performance and payment bonds executed by an admitted surety insurer equivalent to the bonds issued on the Construction Contract, and Surety shall make available, as the Work progresses, sufficient funds to pay the cost of completion less the 11/14/2023 C7 37 of 41
CITY OF VISTA Page 2 of 3 IN THE DIRT ENGINEERING
{00112048 1} [00065305 3] PERFORMANCE BOND (FAITHFUL PERFORMANCE) balance of the Contract Sum, and to pay and perform all obligations of Principal under the Contract and Contract Documents, including other costs and damages for which Surety is liable under this Bond and all obligations with respect to warranties, guarantees, and the payment of liquidated damages as a result of Contractor’s default; (d) Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances:
(i) After investigation, determine the amount for which it may be liable to City and, as soon as practicable after the amount is determined, make payment to City; or (ii) Deny liability in whole or in part and notify City, citing the reasons for denial.
If Surety does not proceed as provided above with reasonable promptness, Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from City to Surety demanding that Surety perform its obligations under this Bond, and City shall be entitled to enforce any remedy available to City. If Surety admits liability and tenders payment, and City refuses the payment, or Surety has denied liability, in whole or in part, without further notice City shall be entitled to enforce any remedy available to City.
In case suit is brought upon this bond, Surety further agrees to pay all court costs and reasonable attorneys’ fees in an amount fixed by the court. Principal and Surety agree that this Performance Bond shall not be considered a part of the Contract but rather is a separate obligation of Principal and its Surety, and that any attorneys’ fee provision contained in this Performance Bond shall not apply to the Contract. In the event there is any litigation between the parties arising from the breach of the Contract, each party will bear its own attorneys’ fees in the litigation.
FURTHER, Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, addition or modification to the terms of the Contract, or of the work to be performed thereunder, or the specifications for the same, shall in any way affect its obligations under this bond, and it does hereby waive notice of any such change, extension of time, alteration, addition, or modification to the terms of the Contract or to the work or to the specifications thereunder. Surety hereby waives the provisions of California Civil Code §§ 2819, 2845, and 2849.
City is an intended beneficiary of this bond and has all rights of a party thereto. [Text and signatures continued on page 3.]
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CITY OF VISTA Page 3 of 3 IN THE DIRT ENGINEERING
{00112048 1} [00065305 3] PERFORMANCE BOND (FAITHFUL PERFORMANCE) IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original hereof, have been duly executed by Principal and Surety, on the date set forth below, the name of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body.
Dated:
“Principal”
IN THE DIRT ENGINEERING
By: Signature
Name and Title
By: Signature
Name and Title
(Seal)
“`Surety”
By: Signature
Name and Title
By: Signature
Name and Title
(Seal)
This bond must be dated, all signatures must be notarized, and evidence of the authority of any person signing as attorney-in-fact must be attached.
APPROVED
Amanda L. Guy
20231101144702
11/14/2023 C7 39 of 41
EXHIBIT 4: BID DOCUMENTS
ON FILE IN THE CITY CLERK'S
DEPARTMENT
11/14/2023 C7 40 of 41
EXHIBIT 4
Sherry Rebueno Kirkpatrick, PE
President, SRK Engineering
2615 Auto Park Way
Escondido, CA 92029
November 2, 2023
Re: Bobolink Storm Drain Project Phase 1 (CIP No. 8197) Formal Protest from SRK Engineering of Bid Submitted by In the Dirt Engineering Dear Mrs. Sherry Rebueno Kirkpatrick:
The City is in receipt of your formal protest of the apparent low bidder, In the Dirt Engineering, for the subject project that bid on Tuesday, October 17, 2023, at 4:00 pm. It is our understanding that SRK Engineering believes that In the Dirt Engineering does not meet the necessary experience requirements as stated within the bid documents, based on their listed project references. Your bid protest is therefore claiming an issue of bidder responsibility.
City staff in consultation with the City Attorney’s Office, has reviewed the formal bid protest letter submitted by SRK Engineering, reviewed the apparent low bid submitted by In the Dirt Engineering, including project references, and determined that In the Dirt Engineering has demonstrated satisfactory project experience to perform on the subject project. In performing its evaluation, City staff considered that the subject project is for storm drain infrastructure construction and not a more complex or unique project type. For such projects, bidder experience on smaller similar projects remains relevant evidence of bidder responsibility.
Legally, the City cannot make a determination of bidder responsibility based on any concept of relative responsibility or superiority among bidders. The City must solely determine whether the subject bidder has satisfactory experience, capacity and fitness to undertake and complete the project, as described in Public Contract Code section 1103.
Therefore, City staff is recommending that the City Council reject the bid protest submitted by SRK Engineering at their regular scheduled meeting on November 14, 2023, and award the contract to In The Dirt Engineering.
Sincerely,
Matt Atteberry, PE
City of Vista
CIP Engineering Division Manager
200 Civic Center Drive
Vista, CA 92084
Cc: City Attorney’s Office
11/14/2023 C7 41 of 41
EXHIBIT 5