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Home My WebLink About06/03/2008, PH3 - APPEAL OF AWARD OF TANK FARM PROJECT CONTRACT C i council M.EmDw 4 acEnba Pwpont '� N° � 3 j CITY OF SANLUIS OBISPO FROM: John Moss, Utilities Director�6 v Prepared By: David Hix, Wastewater Division Manager SUBJECT: APPEAL OF AWARD OF TANK FARM PROJECT CONTRACT CAO RECOMMENDATION Deny the appeal by Whitaker Contractors, Inc. and affirm contract award to Mountain Cascade Inc, in the amount of $9,179,000.00 for the Tank Farm Gravity Sewer, Lift Station and Force Main Project, Specification No. 99703. DISCUSSION On February 12, 2008, City Council approved staff to advertise for bid the Tank Farm Gravity Sewer, Lift Station and Force Main Project and authorized the City's Administrative Officer to award the contract if the bid was within the engineer's estimate. Eleven bids for the project were opened April 10`f' with three of them being below the engineer's estimate of $9,947,700. The lowest bid submitted was from Mountain Cascade Inc., of Livermore Ca. for $9,179,000. Below is the project's bid summary: Table 1. Tank Farm Bid Summary Mountain Cascade $9,179,000.00 Whitaker Contractors $9,292,316.00 Pa ich Construction $9,464,460.00 R. Bakker, Inc. $10,286,000.00 Sundt Construction, Inc. $10,657,000.00 Stanek Constructors, Inc. $10,992,000.00 HPS Mechanical, Inc. $11,759,658.00 Specialty Construction, Inc $11,996,200.00 Diablo Contractors, Inc. $13,844,000.00 John Madonna $15,601,800.00 After receiving the bids staff reviewed the three lowest and determined that Mountain Cascade was the lowest responsible bidder. The Tank Farm Project specifications only required a valid class A contractor's license at the time of bid opening. No other licenses or certifications were required at the time of bid opening and Mountain Cascade is in compliance with the licensing and all other bidding requirements. • J Appeal of Award for Tank Farm Project Page 2 Bid Protest On April 11, 2008, Whitaker Contractors protested the Mountain Cascade bid arguing that the contractor was required to possess a Hazardous Substances Removal Certificate endorsement at the time of bid to complete the work, given the probability of encountering hazardous materials. Staff contacted Whitaker and informed them that there were no requirements for the contactor to possess the Hazardous Substances Certification at the time of bid and that the City had confirmed that Mountain Cascade had complied with bid specifications. Moreover, in response to the concerns raised by Whitaker, Mountain Cascade provided additional information, not required by the specifications, which further demonstrated prior to award its ability to perform all work specified and bid. Contaminated materials and groundwater handling are listed as extra pay items in the City's bid specifications because there is no guarantee that these conditions will be encountered. The City included the potential for encountering contaminated materials in its specifications in order to provide complete information and to facilitate precise bid amounts that would account for the contingency. However, no certification requirements were specified at time of bid. Notwithstanding that the current protest is based on Whitaker's contention that Mountain Cascade failed to provide information that was not required at the time of bid, Mountain Cascade Inc., did verify prior to award that it possesses a Hazardous Substance Removal Certificate. That certification was applied to Mountain Cascade by Mr. Michael Duke Fuller, the firm's Responsible Managing Officer, who has been in possession of this certification since 1992. Accordingly, staff informed Whitaker that the City was moving forward to award the contract to Mountain Cascade. On April 29, 2008, the City Administrative Officer awarded the contract to Mountain Cascade and, on May 1, 2008, staff faxed a notification letter to Whitaker relating that the City was proceeding with award to Mountain Cascade (see Attachment 3). By letter dated May 2, 2008, and received by the City Administrative Officer on May 6, 2008, Whitaker's legal counsel challenged the City's action to award the contract to Mountain Cascade (see Attachment 1). As the award had already been made, Staff considered the correspondence a timely administrative appeal in accordance with the City's Appeals Procedures,. set forth at Chapter 1.20 of the Municipal Code, and the matter is now before Council for final determination. Whitaker's attorney subsequently submitted an additional letter more fully setting forth the basis for the appeal. It remains Whitaker's position that the contract should not have been awarded to Mountain Cascade because Mountain Cascade was not properly licensed at the time of bid, as required by Business and Professions Code, Section 7028.15, which provides, inter alfa, that "Any contract awarded to...a contractor who is not licensed pursuant to this chapter is void." That Chapter (Chapter 9 —Contractors) simply requires that persons bidding on and performing specified work be licensed as contractors in the relevant classification. In this case, the Contractors State License Board documentation reviewed by staff prior to award, and submitted as Exhibit B to Whitaker's May 21 letter, clearly establishes that Mountain Cascade is, and at all relevant times was, licensed under Chapter 9 in the classification of "general engineering 3 -a- Appeal of Award for Tank Farm Project Page 3 contractor." The only provisions of Chapter 9 relating to the hazardous substance certification at issue here are those set forth in Section 7058.7 of that Chapter, as follows: (a)No contractor may engage in a removal or remedial action, as defined in subdivision (d), unless the qualifier for the license has passed an approved hazardous substance certification examination. (e)(1) A contractor may not install or remove an underground storage tank, unless the contractor has passed the hazardous substance certification examination developed pursuant to this section. (2) A contractor who is not certified may bid on or contract for the installation or removal of an underground tank, if the work is performed by a contractor who is certified pursuant to this section. Thus, the only reference to the relevant certification relating to its necessity at the time of bid applies to storage tank removal; and that section explicitly permits a contractor who is not certified to bid on and contract for such a project. Accordingly, staff finds no requirement in Chapter 9 that an otherwise appropriately licensed contractor must demonstrate possession of a hazardous substances removal certification at the time of bid in order to be awarded a contract and, therefore, concludes that Whitaker's appeal is without merit. Award Determination Staff recommends award to Mountain Cascade Inc., because it is the lowest responsible bidder that meets the bid requirements of the project specifications. Because there was neither a bid requirement, nor a legal requirement to demonstrate possession of a Hazardous Substances Removal Certificate at the time of bid for this project, the possession of that certificate at the time of bid could not have been and was not considered in the decision to award to Mountain Cascade Inc. Having reviewed the project specifications and bids and considered the arguments raised by Whitaker, Staff recommends that Council deny the appeal and affirm the contract award to Mountain Cascade. CONCURRENCES The City Attorney and City Engineer concur with this recommendation. FISCAL IMPACT There is no additional fiscal impact. Funding for this project has been approved. 3 Appeal of Award for Tank Fane Project Page 4 ALTERNATIVES Award Contract to Whitaker Contractors Inc. This alternative is not recommended. Award to Whitaker Contractors would not be to the lowest responsible bidder.and would expose the City to possible litigation from other parties. ATTACHMENTS 1. Whitaker Protest Letters dated April 11, 2008; May 2, 2008; and May 21, 2008 .2. Mountain Cascade Response Letter dated April 21, 2008 3. Staff Correspondence dated April 28, 2008 (e-mail); May T:\Tank Farm Lift Station\Construction\Whitaker Protest\Tank Farm Protest CAR.doc Attachment 1111EEWHITAKER 1111 CONTRACTORS INC . April 11, 2008 2752 CONCRETE COURT m PASO ROBLES,CA 93446 o www,whilakercontractors.com TEL(805(226.4020 a FAX(805)226.4021 0 E-MAIL info@whitokercontraclors.com City of San Luis Obispo Public Works Administration 919 Palm St. San Luis Obispo, CA 93401 Attn: Barbara Lynch Subject: Gravity Sewer, Lift Station and Force Main Project Specification No. 99703 Bid Protest Dear Barbara: In accordance with project specifications, special provisions article 10,the City of San Luis Obispo (City), cites California Law, Business and Professions Code Section 7028.15(e) which discusses licenses required and states: "Unless one of the foregoing exceptions.applies,a bid submitted to a public agency by a contractor who is not licensed in accordance with this chapter shall be considered nonresponsive and shall-be. rejected by the public agency. Unless one of the foregoing exceptions applies,a local public agency shall,before awarding a contract or issuing a purchase order,verify that the contractor was properly licensed when the contractor submitted the bid. Notwithstanding any other provision of law,unless one of the foregoing exceptions applies,the registrar may issue a citation to any public officer or employee of a public entity who knowingly awards a contract or issues a purchase order to a contractor who is not licensed pursuant to this chapter. The amount of civil penalties,appeal,and finality of such citations shall be subject to Section 7028.7 to 7028.13, inclusive. Any contract awarded to,or any purchase order issued to,a contractor who is not licensed pursuant to this chapter is void." Clearly a hazardous license endorsement is required on this contract given the specific bid items, a long history of spills and contamination surrounding this site and voltuninous plans and specifications dealing with such: Based on the plans and specification, the City clearly anticipates work along Tank Farm Road will require work in hazardous materials. Mountain Cascade and relevant subcontractors do not appear to possess the legally required hazardous license. The call for bids states the required license is required at time of bid. While it may be argued that Mountain Cascade could have found a subcontractor to perforin the hazardous work, none was listed. The magnitude and cost of this work and the fact it is inextricably tied with the pipeline excavation would require listing at the time of bid pursuant to Section 4100 of the Public Contracts Code. PAVING a PIPELINES o DEMOLITION a EARTHWORK a FLOOD CONTROL ® STRUCTURAL CONCRETE o MARINE CONSTRUCTION / LIC. $0556738 Attachment 1 Page 2 Barbara Lynch April 11, 2008 Furthermore, Mountain Cascade enjoyed a"Competitive Advantage" (Konica Business Machines USA., Inc. v. The Regents of the University of California, supra, 206 Cal.App.3d at 454) because its bid bond was not at risk; had Mountain Cascade not liked their bid, in comparison to others, or for any other reason, they could simply have opted to claim (post bid) that it was not properly licensed at time of bid as required by section 7028.15(e), thus its bid would be rendered unresponsive. Based on the above factors; WCI believes Mountain Cascade's bid to be non-responsive and protests any award of a contract to Mountain Cascade. Respectfully, S. Brett Whitaker President CC: Art Woodward, esq. Mountain Cascade, Inc. Papich Construction R. Baker, Inc. Sundt Construction, Inc. Stanek Constructors, Inc. HPS Mechanical, Inc. Specialty Construction, Inc. Diablo Contractors, Inc. John Madonna Construction Co. —4 - - Attachment 1 i 555 Capitol Mall, 10th"Floor P:916/444.1000 D O W N E Y � BRAN D Sacramento, CA 95814 F: 916/444-2100 ATTORNEYS LLP downeybrcnd.com Arlhur G.Woodward owoodward@downeybrond.com F3Ity 9189h LU16 01010+ H6uNEll A fiilfli§lislt�lt _ May 2, 2008 ATrORNEY HaDla r-mcL1 MAY 0 f tPZ RVDIR CDD Dn. POUCE CHF VIA U.S.MAILCM DIR FYI ;,LE FY4 P&R DUi Ken Hampain FIRE CHF ROUTE 4ANOLE UTILDIA City Administrative Officer + 990 Palm Street San Luis Obispo, CA 93401-3218 Re: Gravity Sewer, Lift Station and Force Main Project Specification No. 99703 Bid Protest Dear Mr. Harnpain: Whitaker Contractors, Inc. ("Whitaker") has retained this firm.to represent it in connection with the Bid protest regarding the above-referenced contract. The purpose of this letter is to provide you with written confirmation that Whitaker does protest what appears to be the City's intent to award the contract to Mountain Cascade,.Inc. Whitaker's protest is based on the fact that Mountain Cascade,Inc. did not hold a Hazardous Substances Removal Certificate on the bid submittal date. I have enclosed a copy of the Contractors State License Board ("CSLB") detail for Mountain Cascade's RMO,Mr. Fuller. According to the CSLB, Mr. Fuller associated his Class A general engineering contractor's license with Mountain Cascade on August 16, 2007. He did not associate the Hazardous Substances Removal Certificate with Mountain Cascade on that date, but on April 22,2008 — almost 2 weeks after the bid submittal date. Consequently, on the bid submittal date,Mountain Cascade did not possess each license required to perform the scope of work set forth in the bid documents, and therefore, Mountain Cascade was not a responsive bidder. The City does not have the power under the Public Contracts Code to award a public works contract to a non- responsive bidder. Whitaker requests the opportunity to present further briefing on the issues summarized above and further requests notice of any hearing the City might conduct with respect to Whitaker's protest. Finally, I request that you provide me with any wriifen notification the City has issued to date regarding its intent to award the contract to Mountain Cascade. a_aY75.f . 2- / Attachment 1 Ken Harnpain May 2, 2008 Page 2 Please do not hesitate to contact me if you have any questions or require any further information with respect to the matters set forth above. Very truly yours, DOWNEY BRAND LLP Arthur G. Woodward AGW:kjb Enclosure cc: Brett Whitaker 914y1,.1 DOW:NEY ( BRAND ATTORNEYS LLP _V Attachment $. Contractor License Personnel Detail Page 1 of 1 Contractor License#: 422496 Name: MICHAEL DUKE FULLER Title and Class TITLE CLASS ASSOCIATION DISASSOCIATION History DATE DATE OFFICER 03/29/1996 05/08/2002 CEO/PRESIDENT 05/08/2002 08/16/2007 RMO/CEO/PRES A GENERAL ENGINEERING -08/16/2007 CONTRACTOR RMO/CEO/PRES HAZ,HAZARDOUS 04/22/2008 SUBSTANCES REMOVAL Bonding History PERCENT SURETY COMPANY BOND# BONG EFFECTIVE CANCELLATION AMOUNT DATE DATE % 08/16/2007 Qri�i »close window<< http://www2.Cslb.ca.gov/General-Information/interacti ve-tools/check-a-lice nse/Person nel+... 5/2/2009 • ATTACHMENT 1 D O W N E Y BRAND 555 Capitol Mall, 10th Floor P: 916/444-1000 Sacramento, CA 95814 F: 916/444-2100 ATTORNEYS LLP downeybrand.com Arthur G.Woodward awoodward@downeybrand.com REC7MB May 21, 2008 MA SLO CITY ATTORNEY VIA FEDEX Jonathan P. Lowell City Attorney 990 Palm Street San Luis Obispo, CA 93401 Re: Specification No. 99703 (Gravity Sewer, Lift Station and Force Main Project) Protest Dear Mr. Lowell: Whitaker Contractors, Inc. ("Whitaker") submits the following letter brief and with supporting documentation in furtherance of its protest of the May 8, 2008 award of the above-referenced Contract to Mountain Cascade, Inc. ("MCP') The basis for the protest is that MCI was not properly licensed to performed the work identified in the Contract at the time it submitted its bid. Consequently,the bid of MCI was non-responsive and, therefore,it must be rejected by the City pursuant to California law. SUMMARY OF WHITAKEWS PROTEST • The scope of work in the Contract includes the handling of hazardous materials and requires the construction of a pipeline and other activity in soils the City's geotechnical consultant's report confirmed are contaminated. • The City confirmed in writing that in order to dig and remove hazardous materials, a Hazardous Substance and Removal Certificate is required. • MCI did not possess a Hazardous Substances Removal Certificate at the time it submitted its bid. • By law,MCI's bid must be rejected as non-responsive. 928627.1 O/T/� -/b ATTACHMENT i Jonathan P. Lowell May 21, 2008 Page 2 The following facts confirm MCI's bid was non-responsive: The Bidder must be properly licensed at the time it submits its bid • Business and Professions Code section 7028.15(e) requires the public agency"verify that the contractor was properly licensed when the contractor submitted the bid." (Emphasis added). That statute also provides that: ...a bid submitted to a public agency by a contractor who is not licensed in accordance with this chapter should be considered non-responsive and shall be rejected by the public agencX." (Emphasis added) Also,the Contract expressly quotes section 7028.15 in paragraph 10 of the Special Provisions. Thus, MCI's bid must be rejected if it was not properly licensed at the time it submitted its bid. (A copy of paragraph 10 of the Special Provisions is attached as Exhibit"A".) MCI was not properly licensed at the time it submitted its bid • The bids were opened on April 10, 2008. At the time the bids were opened, MCI did not hold a Hazardous Substances Removal Certificate. It did not obtain the Certificate until April 22, 2008. (Contractor's License Board web page is attached as Exhibit`B".) • The City acknowledged in a letter dated April 23, 2008 that: "It is understood that in order to dig and remove hazardous materials,this certificate is required." (A copy of the letter is attached as Exhibit "C".) • The bidders were expressly required provide unit prices for the excavation and disposal of contaminated or hazardous materials and contaminated ground water. (Bid Items 17 and 18) (Exhibit "D") The Contract involved hazardous and contaminated materials • The scope of work contemplated by and identified in the Contract plainly called for work involving hazardous and contaminated materials. The report presented to the City Council on February 12, 2008, in connection with the CAO's request for approval of the plans and specifications for this project discusses hazardous and contaminated materials issues in detail. The report includes a section entitled "Contaminated Materials and Agreements." The report then advises the City Council that"special provisions have been placed in the plans and specifications to use petroleum resistant piping and to control migration of contaminants down the trench line." (Exhibit"E") • Prior to issuing the request for bids, the City obtained a geotechnical engineering report from Furgo West, Inc.. The Furgo West, Inc. report was included as Attachment A to the Contract specifications. It stated that the work area was indeed contaminated: "Tank Farm Road is located near the abandoned Unocal tank farm and is known to be contaminated. Contaminated soils were encountered during our field exploration." (Exhibit "F") 928627.1 DOWN.EY] BRAN D � // ATTORNEYS LLP C J ATTACHMENT 1 Jonathan P. Lowell May 21, 2008 Page 3 • The Contract specifications require the "Construction of 18-inch gravity sewer pipe line along Tank Farm Road." (Section 01010, Paragraph 1.0.5) (Exhibit "G") • The Contract specifications include an entire section entitled"Hazardous and Contaminated Materials." (Section 02232). Part 3 of that Section, entitled"Hazardous and Contaminated Material Sites" states that: "Known areas of soil and ground water contamination as identified by the City are as follows: ...," and it then goes on to identify specific contaminated parcels on which the work identified in the Contract will be constructed. Part 3 further provides specific protocols for the handling of contaminated soil and ground water. It requires the contractor to"prepare and submit a project-specific hazardous materials contingency plan (HMCP) prior to the start of construction. (Exhibit "H") • Bidders were expressly required to provide a price for handling and treatment of the handling of the contaminated materials in their bid. (Bid Items 17 and 18.) LEGAL ARGUMENT California law requires strict compliance with public contract bidding procedures: "Because of the potential for abuse arising from deviations from strict adherence to standards which prompt these public benefits,the letting of public contracts universally receives close judicial scrutiny and public contracts awarded without strict compliance with bidding requirements will be set aside. This preventative approach is applied even where it is certain that there is no corporation or adverse effect upon the bidding process, and the deviations would save the entity money." Konica Business Machines USA, Inc. v. The Regents of the University of California, (1988) 206 Cal.App. 3'449-456. In Konica, the Court set aside an award of a public contract on the grounds that the contractor's failure to strictly comply with the bid documents gave the lowest bidder an unfair competitive advantage. Here, MCI had a similar unfair competitive advantage at the time it submitted its bid. If upon the opening of the bids MCI determined that it had significantly underbid the project, it would have been able to withdraw its bid without penalty and the grounds that it was not properly licensed at the time it submitted its bid. This ability to submit a bid and wait and see if it submitted an unreasonably bid would give MCI an unfair competitive advantage over a properly licensed bidder who would not be able to gamble on whether its bid was too low and result in a loss. Business and Professions Code section 7028.15 (a) expressly provides that a bidder must be properly licensed at the time it submits its bid. Thus,the fact that MCI obtained a Hazardous Substance and Removal Certificate before the Contract was awarded on May 8, 2008, is irrelevant for purposes of determining whether its bid was responsive at the time the bid was submitted. See DH Williams Construction, Inc. v. Clovis United School District (2007), 146 Cal.App.4`h 757, 768 (distinguishing the requirement that a general contractor be properly licensed at the time of the bid versus a subcontractor which can obtain the proper license after the bid is submitted; See also No License? No Problem!,The Association of General Contractors 928627.1 DOWNEYIBRAND ATTORNEYS UP J ATTACHMENT i Jonathan P. Lowell May 21, 2008 Page 4 of America(AG California) Legal Briefs, A. Silberman, Issue 07-03 (discussing the distinction between a prime contractor bidder and subcontractor with respect to the requirement the prime be licensed when it submits its bid.) A copy of the article is attached as Exhibit"r'. If a contract is awarded in violation of the public contracts bidding requirements,the contractor does not have the right to receive any payment for any work performed under the contract and the public aency does not have the power to make the payment. Miller v. McKinnon, (1942) 20 Ca1.App.2n , 83. In Miller, the California Supreme Court held that when a statute prescribes the method of contracting, a contract made in violation of the statutorily prescribed mode is void. "Where the statute prescribes the only mode by which the power the contract shall be exercised, the mode is the measure of the power." Id. Here, the applicable statutory scheme requires that the prime contractor be properly licensed at the time it submitted its bid. Thus,the award to a bidder who was not properly licensed at the time it submitted its bid would be a void act. CONCLUSION There can be no doubt based upon the language of the Contract documents that the scope of work defined in this Contract required the contractor to handle and dispose of hazardous and contaminated materials. It is undisputed that MCI did not have a Hazardous Substances Removal Certificate at the time it submitted its bid. Therefore, its bid must be rejected as non- responsive. Very truly yours, DO Y BRAND LLP Arthur G. Woodward AGW:kjb 929627.1 DOWNEYIBRA,ND /� ATTORNEYS LLP - ATTACHMENT 1 Exhibit A ATTACHMENT S appurtenances thereto, and including all costs of permits and cost of compliance with regulations of public agencies having jurisdiction, including Safety and Health . Requirements of the California Division of Industrial Safety and the Occupational Safety and Health Administration of the U.S. Department of Labor(OSHA). No separate payment will be made for any item that is not specifically set forth in the Bid Schedule, and the costs therefore shall be included in the prices named in the Bid Schedule for the various appurtenant items of work Contractor shall comply with OSHA, CalOSHA,and all other federal, state, and local regulations concerning safety. All work performed under this contract shall be conducted with the highest regard for safety of all persons and property. Compliance with OSHA shall include full compensation for furnishing all labor, materials,tools, equipment,personnel,medical screening and incidentals,and for doing all the work involved to comply with all OSHA regulations pertinent to the types of work to be done under this contract, including preparation of worker protection plan required by Section 6705 of the Labor Code,and no additional compensation shall be allowed therefore. OSHA compliance shall conform to the provisions in Section 7-1.06, "Safety and Health Provisions,"and these Special Provisions. 10. LEGAL RELATIONS AND RESPONSIBILITY.. Modify Section 7-1.01C of the City Standard Specifications as follows: 7-1.01C Contractors Licensing Laws. Replace the paragraph,with the following: Attention is further directed to the 1990 amendment to Business and Professions Code Section 7028.15(e)which states the following: (e) Unless one of the foregoing exceptions applies,a bid submitted to a public agency by a contractor who is not licensed in accordance with this chapter shall be considered nonresponsive and shall be rejected by the public agency. Unless one of the foregoing exceptions applies,a local public agency shall before awarding a contract or issuing a purchase order,verify that the contractor was properly licensed when the contractor submitted the bid. Notwithstanding any other provision of law,unless one of the foregoing exceptions applies,the registrar may issue a citation to any public officer or employee of a public entity who knowingly awards a contract or issues a purchase order to a contractor who is not licensed pursuant to this chapter. The amount of civil penalties,appeal and finality of such citations shall be subject to Section 7028.7 and 7028.13, inclusive. Any contract awarded to,or any purchase order issued to,a contractor who is not licensed pursuant to this chapter is void. City of San Luis Obispo Gravity Sewer,Lift Station and Force Main Projcct Special Provisions January 2008 7 ATTACHMENT 1 Exhibit B Check A License: Contract,License Detail J ��%�Pi ii�1 E MFA�e 1 of 2 Skip to:CSLB Home I Conten I Footer I Accessibility Department of Consumer Affairs ' :T M=V Contractors State L� "oard J 1HITTf M i GIT"IItlliTT FITITT11111 ; IIIIIIIIIIIIIII 1111 1!1111111 11 - 1101,TOT2 G3 PPLEBBR CONSUMMWGFBUlllt GEMM&RScapxtTmAGp6LL I � � y About CSLB CSLB Newsroom Board and Committee DISCLAIMER.A license status check provides information taken from the Meetings license database.Before relying on this information,you should be aware of the Disaster information following limitations. Center • CSLB complaint disclosure is restricted by law(B$P 7124.6). If this entity is subject to put CSLB Library complaint disclosure,a link for complaint disclosure will appear below. Click on the link or Frequently Asked obtain complaint and/or legal action information. Questions • Per BSP 7071.17,only construction related civil judgments reported to the CSLB are discl Online Services • Arbitrations are not listed unless the contractor fails to comply with the terms of the arbitra • Check A License or • Due to workload,there may be relevant information that has not yet been entered onto the HIS Registration license database. • Filing a Construction Complaint • Processing Times License Number. 422496 Extract Date: 05/19/2( • Check Application Business MOUNTAIN CASCADE INC Status Information: P O BOX 5050 • Search for a Surety LIVERMORE,CA 94551 Bond Insurance Business Phone Number.(925)373-8370 Company Corporation • Search for a Workers' Compensation Issue Date: 05/10/1982 Company Expire Date: 05/31/2008 How to Participate License Status: This license is current and active.All information below should b reviewed. Classifications: CLASS DESCRIPTION A GENERAL ENGINEERING CONTRACTOR Certifications: CERT DESCRIPTION HAZ HAZARDOUS SUBSTANCES REMOVAL Bonding: CONTRACTOR'S BOND This license filed Contractor's Bond number 5685653 in the amour EE N��X $12,500 with the bonding company 5 >�AP� SAFECO INSURANCE COMPANY OF AMERICA. c'fiVb TiFIIM Effective Date:01/01/2007 FF C.F �gf Contractor's Bor1cIino History o F T BOND OF QUALIFYING INDIVIDUAL 1. The Responsible Managing Officer(RMO)MICHAEL DUKE FULLER certified that he/she owns 10 percent or more of the Contractor License Person: Detail Page 1 of 1 s;•S-. Contractor License#: 422496 Name: MICHAEL DUKE FULLER Title and Class TITLE CLASS ASSOCIATION DISASSOCIATION History. DATE DATE OFFICER 03/29/1996 05/08/2002 CEO/PRESIDENT 05/08/2002 08/16/2007 RMO/CEO/PRES A GENERAL ENGINEERING 08116/2007 CONTRACTOR RMO/CEO/PRES HAZ HAZARDOUS 0422/2008 SUBSTANCES REMOVAL Bonding History PERCENT SURETY COMPANY BOND i BOND EFFECTIVE CANCELLATION AMOUNT DATE DATE % 08/16/2007 print I >>dose window<< Exhibit C K�itme HF'K-Cf3oalwtul 14: 4J �. JfATTACHMINT I P. 001 ,�lopillipillI ICity Of SAn luis omspo Community Development Department-919 Palm Street. San Luis Obispo, CA SS401-3218 April 23,2008 Whitaker Contractors Inc. 2752 Concrete Court Paso Robles, Ca.93446 Fax: 226-4021 Attn: Brett Whitaker Subject: Gravity Sewer, Lift Station and Fore Main Project Specification No. 99703 Bid Protest We have received your letter of protest. Bid documents form Mountain Cascade show that they were in possession of a valid Class A license at the time of bid opening per the contracting licensing requirements of the projecL Additional information received form Mountain Cascade and verification on the Contractors Licensing Boards web site does show that they are in possession of a Hazardous Material Removal certificate. Contract documents did.not specifically call out that the contractor needed to have a hazardous materials certificate. It is understood that in order to dig and remove hazardous materials this certificate is required.With documentation that has been provided Mountain Cascade will be able to perform the work as the prime contractor in the event that we do encounter hazardous materials. BARBARA LYNCH CITY ENGINEER Richard Fisher Construction Engineering Manager nThe City of San Luis Obispo is committed to include the disabled in ell of its services.programs and activities. ATTACHMENT 9 Exhibit D ATTACHMENT 1 r� SUPPLEMENTAL BID ITEMS: Item Item Qty. Unit Unit Price Item Subtotal No. $ 17. Excavation,segregation, and 5,500 CY $ disposal of contaminated or hazardous material and disposal at Union Oil Company of California's designated stockpile site. 18. Special handling of 5,300,000 GAL $ $ contaminated groundwater from trenching and excavation and discharge to Union Ol Company of California's treatment facility. TOTAL CONTRACT PRICE(sum of Items 1 through 18): $ Addendum 1 a-3 J ATTACHMENT I Exhibit E J ATTACHMENT I councaL . y 12,=8 . agenda Repoa CITY OF SAN LUIS OBISPO FROM: Department Head: John Moss,Utilities Director pp,,,,� � Prepared By: David Hix wastewater Division Managerl(jN/ SUBJECT: TANK FARM GRAVITY SEWER, LIFT STATION AND FORCE MAIN PROJECT CAO RECOMMENDATION 1. Approve the plans and specifications for the Tank Faun Gravity Sewer,Lift Station and Force Main Project,-specification number 99.703 and authorize staff to advertise for bids. 2. Authorize the CAO to award the construction contract if the recommended bids are within the engineer's estimate of$10,942,400. 3. Authorize an increase in the total project budget$8,415,428 to$13,242,900 and; 4. Adopt a resolution authorizing staff to submit an application to the California hrfiastluctum Bank(I-Bank)and a loan amount of$10,000,000. 5. Approve funding the remaining$2,245,900 needed to finance this project through bonds, most likely to be issued through private placement;and direct staff to return to Council for approval of appropriate bond documents once Bids are received and we have received loan approval from the I-Bank. DISCUSSION The Tank Farm Gravity Sewer, Lift Station and Force Main Project (Tank Farm Project) has. been under study and design for the last four and a half years. The project will replace two aged and over opacity lift stations with one large lift station that will serve existing customer needs in the southeastern portion of the City,and provide serviceto the Orcuu Annexation Area, eastern portion of the Airport Annexation Area and a portion of the Margarita Annexation Area per the City's General Plan. The Tank Farm Project was identified in the City's Wastewater Master Plan update approved by Council in 2001. The master plan-analyzed the City's General Plan,proposed annexation areas, and existing customers to deternime the most efficient and reasonable facilityto replace the existing over capacity infrastructure and serve new annexation arena. - Project Design,Changes and Environmental Issues In Jtrly of 2003 Counc d approved a contract for design services for the Tank Farm Project with Brown and Caldwell engineers. The project runs from the southeastern portion of the City west to the Water Reclamation Facility (WRF). The gravity sewer portion of the project will nm South on Broad Street from Rockview Place to Tank Farm Road, then West along Tank Farm Road for approximately one mile to the lift station site. The lift station site is located on the southeastern corner of the property immediately west of the Chevron property on Tank Farm 3 �y ATTAGUENTI Plans and SpwMcations for Tank Farm Litt Station paw y Road. The force main will run overland north from the lift station and connect with Sueldo, Bonetti,Flaipressa and Prado Road The force main will discharge et Prado to a gravity line that flows to the WRF.. The gravity line on Prado Road to the WRF-will require replacement and is part of the scope of this project: The project is estimated to have a 13 to I4 month construction period Attachment 2 is a map of the project, a better presentation'of the alingment wil be provided during the Council Meeting. The new lift-station is a proven design that utilizes submersible pumps with a self cleaning wet well design. TheCitycurrently operates a smaller version of this pump station design and staff is pleased with its design, maintenance requirements and reliability. Staff has also visited other municipalities with this lift station design to see fust hand how it operates, and to discuss operations and maintenance with other municipal staff. A small building will house control and telemetry equipment along with an emergency generator to ensure reliable operation during all conditions. Since beginning the initial study and design of the project, several issues have resulted. in significant project changes and delays. Below is a summary of the major changes to the project. Alignment Chmiges and Easement Aequbwon. In May of 2005, .City staff met with County engineering staff'to discuss the project and receive comments. At this meeting county-staff informed the City that they would not issue an encroachment permit for construction on Tank Farm Road for the gravity sewer because there was no reasonable alternative route to detour traffic. Tank Faun Rd is a critical connector between South Higuera and Broad Street and is the only connector in that Southern porion of the City. The County was also concerned with the possibility of trench failure during construction or other problems that could Iead' to closure of Tank Farm Rd for a prolonged period of time. After analysis of the County's concerns and realizing that no viable alfemative was available, staff directed the consultant to redesign the Tank Farm gravitysewer outside of the roadway and onto the Chevron property,resulting in a major change and,delay for the project. During the re- alignment process it was determined that crossing Tank Farm Rd several times would minimize contact with oil contamination and tbreatenedlendangered species in the sewer's path. . Construction on the Chevron property also triggered the need for additional easement acquisition and an environmental study of the resources found on the old tank farm Legal descriptions and appraisals are now being completed and will be brought to Council in the next two months. Envovnmenkd Issues and Permitting. After it was determined that the Tank Farm Road gravity sewer would need to be placed outside of Tank Farm Rd. and onto Chevron property an environmental document was needed to ensure protection of resources that may be encountered during construction of the project. This required an environmental consultant to perform a study, and develop a mitigated negative declaration to ensure adequate protection of the identified resources. Two plants; Congdon's Tarpalnt and San Iasis Obispo Morning Glory, along with Fairy Shrimp were identified as possibly being impacted by the construction_ To avoid possible impacts,the plans show the location of these resources and require the contractor to fence off and avoid these areas and work only during the drier portions of-the year, The City's biologist will C ATTACH.. .ENT 1. Pians and Spedflentroin for Tank Farm Lfft Station Pam 3 also act as a biological monitor to ensure the requirements of the environmental document are being fulfilled This project has required permits from the California Dept, of Fish and Game,the Army Corp of Engineers, the Calif. Regional water Quality Control Board, the San Luis Obispo County Air Pollution Control District, Cal. OSHA, the Division of Mines and Tunneling, as -well as encroachment permits from the County and Cal Trans. Contaamrated Materidb and Agreements. The Chevron property has. extensive petroleum contamination from years of oil storage and the 1926 fire. City staff and Chevron have been working together to coordinate activities and ensue proper handling of abandoned pipelines, contaminated materials, groundwater and environmental resources. Chevron will have staff on site to test and coordinate disposal of all contaminated soils and will treat contaminated groundwater. In 2006 Chevron had requested an analysis of alternatives to conventional open trenching to minimize the cost of contaminated material and groundwater. if an alternative tienchless method was cost effective Chevron had suggested'they would pay the difference between conventional and tnenchless methods. The analysis determined that a ttenchless method was not a cost effective alternative to pursue. Special provisions have been,placed in the plans and specifications to use petroleum resistant piping and to control-migration of contaminants down the trench line. Abandoned oil and water pipelines have been mapped and are shown on the plans. An-agreement is being finalized that identifies responsibilities and roles of all patties and staff hopes to bring the agreement to Council for approval in the next several months. Cost Sstimatm Over the past several years construction costs have seen significant escalation attributed to a variety of factors including materials costs, labor,fuel and the recent conshvction- bidding "climate". Accurate cost estimates were difficult to prepare because of the previous discussed changes and delays, and have only recently been completed-and finalized with the bid plans and specifications. This along with the complicated nature and scheduling of this project has resulted lir the project cost increasing significantly over previous estimates provided to Council. Staff and the consultant have made all attempts to control costs wherever possible. Next Steps Easements. Because construction alignments were not finalized until this last November, legal descriptions and appraisals are just now being completed. The City's right-of-way consultants have been m contact with the property owners and they are aware of the project and expecting proposals for easements on their properties. Staff will also be seeking dedications where appropriate, based on- anticipated future road alignments, and returning to Council with agreements in the next several months. Permits The City has received its Calif Dept of Fish and Game agreement,.is awaiting approval from the Army Corp, and is in the process of being approved for the remainder of its permit . applications. Staff has been working very closely with all regulatory agencies to ensure rapid. ATTACHMENT I Plans and SpaMeatioas for Tank Fann LIR Station Page 4 turnaround of these permits. All required permits needed to begin construction will be acquired prior to construction. Construction Management and ObTee Engineering. -Staff will be utilizing proposals submitted for the City's recent Request of Qualifications forconstmction management.services. Because of the size of this project and current workload of the City's engineering inspection staff, a construction management consultant is necessary to manage and inspect this project Staff.will be reviewing the statement of qualifications-and requesting proposals specifically for this project. Office engineering, the review.of construction submittals and engineering services while under construction will be provided by the design engineer. Staff will return to Council for approval of a contract for construction management prior to constiaction. FISCAL EWPACT The Tank Farm Gravity Sewer and Left Station project budget to-date is $8,415,428. Recommended budget increases to fund additional design work and the engineer's estimate for construction and construction management total$4,827,472. The Tank Farm Gravity Sewer and Lift Station revised project budget is$13,242,900. Projeci Costa BWSO-TO-Date PmpowdCW=V Stud 0 1avitonmentat Review 42,000 0 :Land A uEdtion-99703 000 IN 1.and.Aition-553007227 58.167 0 5,U67 Design 6 483001 W5216 Constmcdon and Contingencies 715 000 3,794AW 10.94Z400 Constmetioa Mmag==t&OS 0 9K= 994.772 lbtd 9,42372 I3 0 The majority of funding for the Tank Farm Project will be debt financed from two sources; a $10,000,000 loan from the Califoiaiakdhsftuctuw Bank O-Bank)and by the issuance of bonds. . 1-Bank maximum loran amount is $10,000,000. A combination of bond financing and pay-as- you-go funding from the Sewer Fund will fund the estimated $3;242,900 balance. The bond issuance is currently estimated at$2,245,900, with the exact amount of the bond issuance to be determined following the-opening of bids for the project The resolution,approving submittal of the loan application to the I-Bank, includes a commitment to the I Bank for the City(applicant) W have available and commit an amount not to exceed $1,200,000. Currently, the City is contributing approximately $1,000,000 in pay-as-you-go funding to the project, with a revised amount to be determined following the opening of bids. ,t. J ATTACHMENT I Plans and Specllkattons for Tank Farm Lift Station page 5 Project Pamfh g Oarent Proposed lunge Revised Fwding "Pa As-You-M!F=ndnZ 997.000 0 997000 Debt Fh=cm -I-Bank 7 2,800,000 IO 000 Debt Irmancm -Bonds 0 224900 2,245 7btar. 8 . 5 00 13 0 CW017tia 1gft Wwdure Bank The City has had its preliminary application for funding from the I-Bank approved for$10,000,000; the maximum the I-Bank can loan per projecL The I-Bank was initially.chosen because the project's original costs were within $10,000,000; the maximum that I:Bank can loan, and because of an excellent interest rate estimated at 3.25%. The I-Bank application relies on a variety of factors for qualifying the City for financing, one of the more . critical factors is"leverage„or ensuring that the City pays a portion of the cost for the project I- Bank representatives have expressed that this project should have no problems qualifying for financing from their board. Issuance of BOATS. After the final cost estimates were submitted it became clear that additional debt financing would be needed. Recently staff met with the City's financial advisor, Heldman Rolapp and Jones HAD, to discuss selling bonds for the additional debtfinancing. The financing team representatives felt the City should not have difficulty debt financing the remainder of the project with bonds. However, given the relatively small size of the.issuance, and.the I-Bank requirement that that not be a formal credit rating for the supplemental issue,it is likely that the most effective methods of selling the bonds will be through a direct private placement Staff will return to Council, after I-Bank approval, with the appropriate.bond,documents for financing the remainder of the projecL Financing team representatives are also familiar with the I-Bank and will coordinate the bond financing to ensure it conforms to I-Bank criteria. Development Impact Fees. Based on the detailed analysis prepared as part of the Wastewater Master Plan Update, 67.5%.of the cost of this project is attributed to new development; the remainder.is attributed to existing mgOmers. Staff is planning to bring revised wastewater impact fees to Council in the near future that will reflect this increase to the project cost: ALTERNATIVES Alternatives were evaluated in the Wastewater Master Plan. The recommended project is the superior alternative for replacing and upgrading the existing system serving this area and for meeting future development needs in the City's annexation areas. Deferring or delaying this project will result in no further development and a likely a building moratorium for the areas served by this project ATt'AC MIENTS 1. Resolution with Califomia Infrastructure Bank 2. Map of Tank Farm Project Avadable in Conran Office for Review Plans and Specification for the Tank Farm.Gravity Sewer,Lift Station and Force Main Project G:UIPB.ICAR-CAO Rvmts12M8 Cb=ci Agenda RepmtATankrhmRFB.=M0C 3 "Y ATTACHMENT Attaehmn RESOLUTION NO. (200$9.1.) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBl(SPO AUTHORIZING THE SUBMISSION OF THE APPLICATION TO THE CALIFORNIA INFRASTRUCTURE AND ECONOMIC DEVELOpMENT BANK FOR FINANCING OF TANS FARM GRAVITY SEWER AND LOP STATION, DECLARATION OF OFFICIAL INTENT TO REASURSE CERTAIN EXPENDITURES FROM PROCEEDS OF OBLIGATION,AND APPROVING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH _ WHEREAS, the California Infrastructm and Economic Development Bank ('I-B admisters a financing program to assist local governments with .the financing of Public Development Facilities as described in Section 63000 et seq. of the California Government Code (the"Act-);and WHEREAS, the I-Bank has instituted an application process for financing under its Infrastructure State Revolving Fund Program MSRF Program");and WHEREAS,the City of San Iasis Obispo ("AppycanOj desires to submit an ("Financing Application") to the!-]Bank from the ISRF proapplication Farm Gravity Sewer and Lift Station Pro' $rte for the financing of the Tank i (" .tect'�in an amount not to exceed$10,000,000;and WHEREAS,the Act requires the Applicant to certify by resolution certain findings to a Project being selected for financing by the I-Bank. mor WHEREAS. the Applicant expects to Pay certain expenditures (the "Reimbursement penditutrs')'in connection with the Project prior to incurring indebtedness for the purpose of financing costs associated with the Project on a long-term basis;and WHEREAS, the Applicant reasonably expects that. •a financin ("Obligation") in an amount not expected to exceed$10,000,000 vnn be g �ge�t ed into and certain that Expenditures;oproceeds of such Obligation will be. used to reimburse t Reimbursement WHEREAS, the ISRF Program requires funding sources, other than the I-Bank financing,be identified and approved prior to Project financing approval by the I 13ank Board NOW, THEREFORE, BE PL' RESOLVED �' the � Obispo as follows: of the City of San Lois SECTION 1. T1te City of San Luis Obispo hereby approves the filing of an ISRF ' Pror m Financing Application with the I Bank for the Project; and in connection therewith certifies: i a. that the Project is consistent with the General Pian of both the Ci Obispo and the County of San Luis Obispo; �' of San Luis b. the proposed financing is appropriate for the project; r R _ ATTA oE m u I Attachwmt Resolution No. (7008 Series) Page 2 c. the Project facilitates effective and efficient use of existing and future pu6hc resources so as to promote both economic-development and conservation of natural resources; d. the Project develops and enhances public infrastructure in a manner that will attract, create,and sustain long-term employment opportunities; and e. the Project is consistent with the I-Bank's Criteria, Priorities and Guidelines for the ISRF Program. SECTION 2. The Applicant hereby declares its official intent to use proceeds of the Obligation to reimburse itself for Reimbursement Expenditures. This declatation.is made solely . for purposes of establishing compliance with the requirements of Section 1.150-2 of the Treasury Regulations. This declaration does not bind the Applicant to make any expenditure, incur any indebtedness,or proceed with the Project SECTION 3. All of the Reimbursement]Expenditures were made no earlier than 60 days prior to the date of this Declaration. The Applicant will allocate proceeds of the Obligation to pay Reimbursement Expenditures within eighteen(18)months of the later of the date the original expenditure is paid or the date the Project is placed in service or abandoned,but in no event more than three(3)years after the original expenditure is paid. SECTION 4. The total estimated.project cost is$13,200,000 and the Applicant commits to funding the remaining$3,200,000 in project costs with other funds. SECTION S. David C. I3ix, Deputy Director of Utilities-Wastewater is hereby authorized and directed to act on behalf of the City of San-Luis Obispo in all matters pertaining to this application. SECTION 6. If the application is approved,John Moss, Utilities Director is authorized to enter into and sign the financing documents and any amendments thereto with the I Bank for the purposes of this financing SECTION 7. This resolution shall become effective immediately upon adoption. Upon motion of seconded by and on the following vote. AYES: NOES: ABSENT: F AtmcbnuW Resolution No. (2008 Series) Page 3 The foregoing resolution was adopted this day of 2008. Mayor David F.Romero ATTEST: Audrey Hooper ' City Clerk APPROVED AS TO FORM: Jonathan P.Lowell City Attorney j 9 gg 9 11 • 11:� 1111 - II ry Na' _ i * R ' 4 [} yp Is" � -rim C a _ .fR t r4-ICY r t r � v ATTf�CHMI:3 CITY OF SAN LUIS OBISPO CALIFORNIA AGREEMENT THIS AGREEMENT,made on this day of-----,2008 ,by and between the City of San Luis Obispo, a municipal corporation and charter city,San Lars Obispo County,California(hereinafter called the Owner)and MOUNTAIN CASCADE,INC.(hereinafter called the Contractor). WITNESSETH: That the Owner and the Contractor for the consideration stated hereinagree as follows: ARTICLE 1, SCOPE OF WORK: The Contractor shall perform everything required to be performed, shall provide and furnish all of the labor, materials, necessary tools, expendable Wit, and all utility and transportation services required to complete all the work of construction of GRAvrry SEWER,LIFT STATION AND FORCE MAIN PROJECT,SPECIFICATION N0.99703 in strict accordance with the plans and specifications therefor,kchrdrog any and all Addenda,adopted by the Owner,in strict 001upff31KX With the Cooked Dock hervinaftar emrmerated. It is agreed that said labor,materials,tools,equipment, and services shall be furnished and said work performed and curopleted under the direction and supervision and subject to the approval ofthe Owner or its authorized representative& ARTICLE M CONTRACT PRICE: The Owner shall pay the Contractor as fuD consideration for the fanW perfrroance of this Contract;subject to any additions or deductions as provided in the Contract Documents,the conked prices as follows: ftem Item Unitof Estimated. Item Prim TOW . No Measure Quantity (4tignres) (in figures) 1 Mobilization&demobilization LS 1 $435,200.00 $435,200.00 Removal&replacement of existing 6-mch/9-mch gravity sewer pWlme 2 on Broad St.&Rockview Place IS 1 $70,000.00 $70,000.00 Removal of existing sewer pipeline &construction of 10-inch/12-inch gravity sewer pipeline along Broad 3 Street LF- 3920 $400.00 $1,568,000.00 Jac mg&baring under'emsting storm dram box culverts m Broad St 4 m two locations LF 60 $2,400.0 $144,000.00 Construction of 18-inch gravity $410.00 5 sewer . line Tmnk Farm Rd. LF 6760 $2,771,600.00 Jacking&boring under Tank Farm $1,375.00 $825,000.00 6 Road in e' locations LF 600 Construction of miscellaneous site mrprovementonChevron Corp. $10,000.QO $10,000.00 7 Tank Farm Road LS 1 _t _ ATTACHMENT I Item Item Unit of Estimated item Price Total NIL Measure Quantity (in figures) rM 6gares) Const ruction of Tank Farm Lift Station including raw wastewater pumping station,a bladder surge control system,and a masomy building housing the MCC's and 8 generator. LS 1 $1,800,000.00 $1,800,000.00 Construction of 14-inch forcemain from the Tank Farm Lift Station to an existing manhole at the intersection of Prado Road and 9 South Higuera Street. LF 3760 $300.00 $I,129,000.00 Removal of existing sewerline& construction of 24-inch sewer 10 Pipeline along Prado Road. LF 660 $270.00 $178,200.00 Removal&replacement of existing $525.00 $84,000.00 11 24-inch sewer on Prado BMm LF 160 Demolition&abandonment of existing Old Tank Farm& 12 1 Rockview Lift Stations. LS 1 $20,000.00 $20,000.00 I.audscape establishment& $3,000.00 $36,000.00 13 maintenance. Month 12 Provisions liar sheeting,shoring, bracing&other excavation supports 14 OSHA. LS 1 $30,000.00 $30,000.00 15 C with eats. Ls 1 $10,000.00 $10,000.00 Preparation aDd administnrtion of the Hazardous Material 16 Plan. LS 1 $5,000.00 15,000.00 Excavation,segregation,and disposal of contaminated or hazardous material and disposal at Union on Co.of Califonria's 17 designated stoftile site CY 5,500 1 $2.00 $11,000.00 Special handling of contaminated groundwater from trenching& excavation&discharge to Union Oil Co.of C.aNkmia's treatment 18 1 facility. GAL 1 5,300.000 10-01 1 $53,000.00 BID TOTAL. $9,179.000.00 Payments are to be made m the Conmetor in accordance with and subject to the provisions embodied in the documents made a pmt ofthis Contact Should any disptde mise respecting the tore value of any work omitted,of of any extra worts which the Contractor may be regnhed to d0,Or respecting the size of any payment to the Camhactor,during the pedomance of this Conttac�said dispute shall be decided by the Owner and its decision shall be f aai,and conclusive. ,3 3y -2- ATTACHMENTI ARTICLE COIVIPONEW PARTS OF T191,R CONTRACT: The Coact consists ofthe following doh, all ofwhicb are as f iUy apart thereof as Wherein set out in full,and if not attached,as if hereto attached.- 1. ttached:1. Notice to Bidders and it or nation for bidders. 2. Standard Vis,F.ng nearing Standards and Special Provisions. 2, Accepted Proposal. 4. Public Conk-ad code Section 10285.1 Statement and 10162 Questionnaire. 5. Noncollusion Declaration. 6. Plans. 7. List of Subconnutom S. Agreement and Bonds 4. Insurance Requi:=ernts and Fomtis. ARTICLE IV. It is 611en expressly agreed by and between the parties hereto that should there be any conflict between the terms of this instrument and the bid or proposal of said Cofactor,thea this instrument shall control and noth mg herein shall be considered as an acceptance of the said teams of said proposal conflicting herewith_ IN VMTWM WIIREOF,the patties to these presents have hereunto set their hands this year and date Sat above written. CITY OF SAN LUIS OBISPO, A Municipal Corporation Ken Hampian,City Admmismuive Officer APPROVED AS TO FORM: CONTRACTOR Jonathan P.Lowell Mountain Cascade,Inc. City Attorney Printttype name and title -3. i Exhibit F 3 �3 � Hti T It E Geotechnical Report for Tank Farts Road Sawer Improvements September 21,2007(Brown and Caldwell) RE, ,i aa. The City Standard Specifications do not allow for native soil to be used subsequent backfill within traffic areas. Artificial fill, alluvium or older alluvium can likely be used for subsequent trench backfill material above the pipe zone outside of streets provided the material is properly moisture conditioned and compacted As a result of the relatively high moisture content of the alluvium, we expect that the material _ excavated will not be suitable for compaction as excavated. The excavated soil will likely need to be dried or treated prior to being placed as trench backfill. An off-site staging area to spread and aerate the on-site soil would liikey, be needed to assist in drying the material. Alternatively, the excavated soit,can be hauled off site, and the trench can be backfilled using sand-cement slung or compacted import material in `i accordance with the City standard specifications. a Excavated rock of the Franciscan Formation may not be suitable for use as subsequent trench backfill material due to the oversized materials. Processing and removal of the oversized pieces would likely be needed prior to using the material for trench backfill. -01 b Groundwater was encountered at depths above the proposed pipeline irwert in most explorations along Broad Street and Tank Farm Road. The soil moisture conditions were approximately 6 to 10 percent wet of the estimated optimum and commonly saturated. Stabilization of the trench subgrade with gravel bedding materials is recommended to provide suitable support for the pipe and placement of the backfill - materials. +-• :z 4 Groundwater was encountered approximately 2 fleet below the ground surface at the proposed aft station site. Excavation for the proposed Oft station will likely require t` shoring and a dewatering system to remove standing water from the excavation and reduce the potential for disturbance to the foundation support soil. Recommendations are provided for subgrade stabilization prior to construction of the proposed sift station. Moderately hard rock was also encountered beneath the site y for the proposed fitt station, and should be considered when desigring a shoring j system for construction. Tank Farm Road is located near the abandoned Unocal tank farm and is known to be contaminated. Contaminated sorts were encountered during our field exploration. r *_. Characterization or handling of contaminated material is not a part of our scope of 4400 work; however, handling and/or disposal of contaminated earth and groundwater will need to consider proper protocols and regulations for contaminated materials. .s Some of the planned trench1.excavations relatively deep,and-due to the relatively- shallow groundwater and types of soils encountered, trench slopes will likely not stand unsupported for extended periods of time unless property sloped or shored The alluvium and older alluvium was predominately wet day with Interbedded layers 3 of granular soil, mostly sand (SP, SM)and slit(MLS The wet and sandy sails, if not supported. will not stand vertically for extended periods of time, nor should be considered.stable when cut vertically. The sand.layers may slough and undermine the slope or trench if not properly supported and dewatered. Vertical trench walls should be shored to allow for theP��I ine construction, and dewatering provided in P _ 10 Exhibit G L° ATTACHMENT 1 SECTION 01010 --SUMMAR----OF-WORK-- -- ------- --- - 1.0 GENERAL The work covered under this contract will be performed within the City of San Luis O and unincorporated areas of the County of San Luis Obispo bispo(Tank Farm Road). The work to be Performed under this contract includes: 1• Mobilization and demobilization in accordance with the terms of the Contract Documents. 2. Removal and replacement of existing 6-inch and 8-inch gravity sewer pipeline on Broad Street and Rockview Place. Construction includes dewatering,core drilling and connection to existing manholes; cutting, Ping,removal and abandonment of existing sewer line;reconnection or abandonment of existing sewer laterals as indicated on the plans and any other activities,materials,labor,and equipment necessaryto construct these facilities. 3. Construction of 10/12-inch gravity sewer pipeline along Broad Street including construction of manholes,dewatering trenching,testing,import, backfilling pavement replacement,pavement striping and traffic control. Construction includes removal of existing sanitary sewer line and manholes along the same alignment;cutting and plugging of existing gravity sewer lines;reconnection or abandonment of existing sewer laterals as indicated on the plans and any other activities,materials;labor,and equipment necessary to construct these facilities. 4. lacking and boring under existing storm drain box culverts in Broad Street in two locations which includes dewatering,installation of steel casing carrier Pte,excavation and backfilling of jacking and receiving pits,grouting, filling annular ace with sand,and any other activities,materials, labor,and equipment necessary to constrict these facilities. 5. Construction of 18-inch gravity sewer pipeline along Tank Farm Road Construction includes gravity sewer from Hidden Hills Mobil park, abandonment of existing forcemain,existing wetw,ell reconfiguration,sewer manholes,dewatering,trenching,trench plugs,testing,import backfilling Pavement replacement,pavement striping,traffic control, and any other City of San Luis Obispo Gravity Sewer,Lift Station and Force Main Project January 2008 Summary of Work 01010-1 3 '3g ATT Cbla 6t Exhibit H � -yo SECTION 02232 PARTI—GENERAL 1.01 GENERAL The Contractor shall take notice that contaminated or hazardous materials may be encountered as a part of this project.. When the Contractor or any of its subcontractors,while performing work on or in the vicinity of the project area, encounter material that is suspected to be contaminated, the Contractor shall stop work,immediately notify the Construction Manager in writing,and implement the HMCP. The Contractor shall sufficiently-secure the work area such that contaminated material or potentially contaminated materials are not exposed to public. This shall be accomplished through temporary backfilling,trench plating,covering exposed areas with plastic sheeting,or other means. Work in the immediate area shall be suspended until the Construction Manager authorizes the work to resume. .1.02 REGULATORY REQUIREMENTS Properly handle contaminated materials in conformance with federal,state,and local regulations. Provide for the health and safety of personnel and visitors who may work.with or be exposed to the contaminated materials. Activities involving contaminated materials shall be in accordance with: 1. California Hazardous Water Control Law(HWCL),Health and Safety Code Sections 25100 through 25249. 2. California Administrative Code, Title 22,Division 4, Chapter 30, Minimum Standards for Management of Hazardous and Extremely Hazardous Wastes. 3. Federal Resource Conservation and Recovery Act(RCRA),42 USC, Sections 6901 through 6987. 4. Federal Hazardous and Solid Waste Amendments(HSWA),PL 98-616. 5. California State Water Resources Control Board Regulations, California Administrative Code, Sections 2501 through 2610. 6. California Administrative Code,Title 8;General.Industry Safety Orders, Section 5194,Hazard Communication. City of San Luis Obispo Gravity Sewer, Lift Station and Force Main Project Hazardous and Contaminated Materials �l January 2008 02232-1 7 7. California Labor Code, Chapter 2.5, Hazardous Substances Information and Training. --------- -------------------------------------------------------------------------------------- 8. California Occupational Safety and Health Administration(CAL/OSHA) regulations(Title 8, CCR, Section 5192). 1.03 HANDLING OF CONTAMINATED MATERIAL As required by the project's Expanded Initial Study/Proposed Mitigated Negative Declaration,the Contractor shall prepare and submit a project-specific Hazardous Materials Contingency Plan(HMCP)prior to the start of construction, subject to review and approval by the Construction Manager,which details how the Contractor intends to protect workers while - ---working-in-the-presence-ofcontaminatedsoil&.and-groundwater--ThaMACl'shall include-- - - - ---- standard construction measures as specified in federal, state,and local regulations for hazardous materials,removal of-on-site debris,and confirmation of presence of pipelines on-site. At a -----minimum,the following measures shall be included in the contingency plan: 1. When contaminated soils or other hazardous materials are encountered during any soil moving operation during construction(i.e. trenching, excavation,grading),construction shall be halted and the HMCP implemented; 2. Instruct workers on recognition and reporting of materials that may be hazardous; i 3. Minimize delays by continuing performance of the work in areas not affected by hazardous materials operations; 4. Identify and contact subcontractors and licensed personnel qualified to undertake storage,transportation,and other remedial work required by, and in accordance with,laws and regulations; ' 5. Forward to Construction Manager copies of reports,permits,receipts,and other documentation related to remedial work;and L 6. Notify such agencies as are required to be notified by laws and regulations within the time stipulated by such laws and regulations. The implementation of the HMCP shall include the following measures at a minimum when hydrocarbon contaminated soil is encountered: 1._ - _The P�r[nitteesh41 notify APCD immediated of the contaminated material; 2. Covers on storage piles shall be maintained in place at all times in areas ` not actively involved in soil addition or removal; City of San Luis Obispo Gravity Sewer,Lift Station and Force Main Project Hazardous and Contaminated Materials January 2008 02232-2 3�a- h. LUU 3. Contaminated soil shall be covered with at least six inches of packed uncontaminated soil or other TPH—non-permeable barrier such as plastic tar . No_headspace shall be allowed where vapors could accumulate; 4. Covered piles shall be designed in such a way to eliminate erosion due to wind or water. No openings in the covers are permitted; 5. Contaminated soils with TPH concentration above 100 ppm will be immediately removed from the site by trucks and delivered to Union Oil Company of California's appointed stockpile sites. Trucks carrying contaminated material will maintain at last two feet of freeboard between the top of the load and the top of the trailer, covered with a plastic tarp or other TPH—non-permeable barrier, 6. During soil excavation,odors shall not be evident to such a degree as to cause a public nuisance; and, 7. Clean soil must be segregated from contaminated soil. The HMCP shall be prepared,signed,and stamped by a Certified Industrial Hygienist employed by or under contract to the Contractor. The HMCP shall be reviewed and signed by the Contractor and all personnel who will be overseeing work in the contaminated construction zones, including subcontractors. Two copies of the Contractor's written HMCP shall be submitted to the Construction Manager prior to the start of work at the site. The HMCP shall be revised and kept current as required by the continuing progress of the work. Two copies of any revisions shall be delivered to the Construction Manager prior to proceeding with the related work A copy of the HMCP shall be provided to all personnel working in the contaminated areas. All Contractor personnel performing work in the identified contaminated areas shall be required to read the HMCP and sign an acknowledgment that he/she has obtained and read a copy of the HMCP. The Contractor shall maintain those acknowledgements in their project file. Full implementation of the HMCP shall not occur without written approval of the Construction Manager. Implementation without written approval shall be at the Contractor's cost. If the Contractor is not prepared to work in the area of potential contamination,the Contractor shall cease work in that area until all approvals to continue have been received. No additional working days will be granted for Contractor's failure to be prepared for adverse working conditions. If directed by the Construction Manager,the Contractor shall stop work in the area of contamination and move to another work area. This shall be considered as part of the work and no additional compensation shall be allowed therefore. City of San Luis Obispo Gravity Sewer, Lib Station and Force Main Project Hazardous and Contaminated Materials January 2008 02232-3� 17, There is a possibility that the Contractor will encounter soil that may have an odor or contain a small amount of hydrocarbon product and not be of a concentration that requires snecialhaodling Qzdisposal�he Contractor shall be pared to dispose of this material per --_ Section 7-1.13 of the Standard Specifications at no additional cost to the Owner. If directed by the Construction Manager,the Contractor shall stop work in the area of contamination and move to another work area This shall be considered as part of the work and no additional compensation shall be allowed therefore. The Owner reserves the right to use other forces for exploratory work to identify and determine the extent of such material and for removing contaminated material from such area.. -----— PART-2=PRODUCTS (NOT-USED)-- --- - - - - - -- -- -- - -- --- -- .---—PAR-r)r3-EXECUTION- ---- - --- ---------- - - ------------ - �_ 3.01 HAZARDOUS AND CONTAMINATED MATERIAL SITES There is a potential of soil contamination in the work area. Known areas of soil and groundwater contamination as identified by the City areas follows: A.P.N. Owner 076-352-062 Union Oil Company of California 076-351-040 Union Oil Company of California 076-381-019 Union Oil Company of California 076-382-004 Union Oil Company of California Union Oil Company of California has prepared a Project Plan that.identified.protocols for contaminated soil and groundwater handling,location of disposal and stockpile areas,field screening protocols,and site contact information. Union Oil Company of California's Project Plan is included as Attachment C of these Specifications. 3.02 DISPOSAL OF CONTAMINATED SOILS Union Oil Company of California is aware of the potential contaminated materials within their site and has been put on notice. Per a Memorandum of Agreement between the City of San i Luis Obispo and Union Oil Company of California,the material from.their site will.be handled as follows: - ---1: -Union Oil Company of Califomia-shall-be-responsible for-providing-a designated--- - - contaminated soil stockpile area within 1/4 mile of the pipeline alignment. 2. Determination of contaminated soil will be made in the field by Union Oil Company of California's representative based on visual screening and/or the use of field instruments. City of San Luis Obispo Gravity Sewer,Lift Station and Force Main Project Hazardous and Contaminated Materials January 2008 02232-41 -�Iel 3. Upon determination that soil is contaminated,the Contractor will follow the HMCP and will haul the contaminated soil to the designated stockpile area. -- -- -- ---------- ------------------------=--------- --------------- - - 4. Stockpile area will be permitted and constructed, as necessary by Union Oil Company of California, in advance of the pipeline construction so as to not affect the construction schedule. 5. Union Oil Company of California will be responsible for maintenance of stockpile area during the course of construction. 6. Union Oil Company of California will be responsible for the ultimate disposal of the stockpiled material including permitting with jurisdictional agencies. The Owner reserves the right to use other forces for exploratory work to identify and determine the extent of such material and for removing contaminated material from such area. The Contractor shall use trench excavated material for Subsequent Backfill (Native)as specified in.Section 02220. If contaminated material is encountered,the Contractor can substitute with Subsequent Backfill (Slurry) or Initial Backfill(Granular)per Specification Section 02220. 3.03 DISPOSAL OF CONTAMINATED GROUNDWATER Union Oil Company of California is aware of the potential contaminated groundwater within their site and has been put on notice. Per a Memorandum of Agreement between the City of San Luis Obispo and Union Oil Company of California, the material from their site will be handled as follows: I. The dewatering of trenches along Tank Farm Road will be accomplished via a Groundwater Handling and Disposal Plan to be developed by Union Oil Company of California in cooperation with the City of San Luis Obispo. 2. The Groundwater Handling and Disposal Plan will identify the engineered treatment system for both dissolved phase and NAPL constituents, methods for Contractor tie- in to treatment system,protocols for treatment system operation,areas for land disposal of treated groundwater,and monitoring and reporting requirements. 3. Union Oil Company of California will be responsible for treating the groundwater adequately to allow for the General Contractor to discharge via the City's sanitary sewer system or discharge via land disposal. 4. Alternatively,Union Oil Company of California may provide for off-site disposal of groundwater via trucks. If such trucking plan is proposed, it shall be coordinated with sufficient capacity so as not to impact the Contractor's project schedule and progress. City of San Luis Obispo Gravity Sewer,Lift Station and Force Main Project Hazardous and Contaminated Materials January 2008 02232-5�� 3.04 MEASUREMENT —__ —Memurementfor-e=vationrsegregation,-a� -aLof_cnntaminatedmateriaLandLoz _ groundwater is described in Section 0 10 10. 3.05 PAYMENT - -- - "The lump-sum price paid-for HMCP-preparation-shati-include-full-compensation-for furnishing all labor,materials,tools,equipment,and incidentals and for doing all the work involved in HMCP preparation and administration in accordance with.all applicable laws and as specified in these Special Provisions. - -- - -- - - Payment for additional costs for special handrmg anaTiauTing of confaminateid—ma�en`al- - and/or groundwater is described in Section 01010. i **END OF SECTION** i City of San Luis Obispo Gravity Sewer, Lift Station and Force Main Project Hazardous and Contaminated Materials January 2008 02232-6 J�� Exhibit I 3-y7 Ute Ur`ej J:L^lS�U�It �'� c o c g AGC y- ' - CALIFORNIA Legal Briefs T1xV0ICEofdsCa Cases,stabiles and legal issues of interest to AGC Members. ISSUE 07-03 No License? No Probleml Court Limits Public Agencies'Ability to Reject Bids Listing Unlicensed Subcontractors ByAaton P.Silberman Rogers Joseph aDoturell/SanFmr>cbw If your company submits bids on public works in for prime contractors and subcontractors Here's how California,then you need to know about the recent court it breaks down: decision in DX Williams Construction,Inc v Clovis Unified School District,146 Ca App.4th 757(Jan.10, the prime contractor(bidder)must be licensed when it 2007 In short,this case says that a bid that lists an submits its bid The D.N. WiffA ms decision does not unlicensed subcoauactor may not be rejected as nonce- change the rule in California that forbids"any person to sponsive,unless the solicitation explicitly requires that submit a bid to a public agency in order to engage in the subcontractors are licensed when the bid is submitted. business or act in the capacity of contractor within this While the public owner may disqualify abidder that lists state without having a lionise therfor." Nor does it an unlicensed subcontractm as inn-responslble,that is, change the duty of public owners to eject bids by unable to perform the work,rtmayonlydosoaftergiving unlicensed contractors: "a bid submitted to a public the biddernotice and an opportunity to explain why it can agency by a contractor who is not licensed in accordance perform. with this chapter shall be considered nonresponsive and shall be rejected by the public agency." Bus.&Prof. TheD.H.winimm court explains the distinction between Code§7028.15. the terms "responsive" and 'responsibility." While responsiveness goes to the contents of the bid,rewon Subcontractors may or may not need to be licensed when sbrlitygoestodwqualitiesofthebidder.Morespecifically, theprime submits its bid This is the primary impact of responsiveness means`whether the bid'promisse s m do. the D.H. ViIIiams decision. In most cases, public what the bidding instructions demand'".Responsibility, owners do not expressly require in&w solicitations that in contrast,is a proposer's"fitness,quality,and capabil- all subcontractors listed in the bids be licensed at bid ity to perform the proposed work satisfactorily:" While submission. In those cases,if the public agency were to responsiveness can be determined from the face of the learn during bid evaluations that a prime bidder listed an bid, responsibility often cannot In most instances, unlicensed subcontractor,it would not be able to reject whether a bid is responsive is basad on an analysis ofthe that bid as nonresponsive.The agency could still require solicitation and the bid and is not dependent on disputed that the prime bidder demonstrate that itsteamwill be able facts. For that reason,a hearing may be necessary on to perform the work, ie, by showing either that the some issues of responsibility,but it is not required on unlicensed contractor will be able to get a license before questions of responsiveness. executing its subcontract and commencing work or that the prime is properly licensed and prepared to do the work What does this mean for public works contractors? if the listed subcontractor cannot obtain the required Mostly,it means that the times at which contractors must license. be licensed for public works jobs will often be different Cantimred a Copyright 2007 Associated General Contractors of California.Inc. Subcontractors must be licensed when they execute What are the practical steps that California public works theircontractrwith thesuccescfulprimebid*n The contractors should take? First, look carefully at the D.H. Wilhams decision does not change the rule in licensing requirements in every public works solicitation Califomiathat generally requires alicense atthe time for which you are considering to bid either as prime or as a subcontractor executes its contract with a suc- a listed subcontractor. If it explicitly requires that all oessful prime bidder on a public works job. MW subcontractors be licensed as of bid opening,then the bid Erectors,Inc v NtederhauserOrnamental&Metal must meet this requitement or it will be nonresponsive Works Co.,Inc., 36 Cal.4th 412,436(2005);Pub. and the public agency will have a duty to reject it Even Cont Code§4107. if,as is more common,the solicitation has no express subcontractor licensing requirement as ofbid opening,it In order to be compensated for their work all is still a good idea to list licensed subcontractors because contractors must be licensed when they commence thepublic agencymaydetemune;afterfurtherdiscussion workandihroughoutperformance.Theruleremains with the prime bidder,thatthe prime and its team are non- that contractors are precluded from recovering com- responsible based on a subcontractor's lack of licensure: pensation for work they perform if they are not Finally,if the agency disqualifies your team's bid based properly licensed when they commenced work. on a subcontractor's lack of licensure,the prime may And,if a contractor's license lapses after the work have grounds for a protest if the agency did not give it an starts,then it must promptly obtain a new license or adequate opportumtytoexplainwhyitsteamiscapableof It will not be entitled to compensation for work pe fe1fb1ming. performed after the license lapsed Bus. &Prof. Code§703l(a);MW Erectors,36 CELL 4th at 440. AGC CALIFORNIA AGCmemberattorneyspmvi i%fromWwto time.re wmandanalysesofcwes,statutesondtegaJicraes ofgo+erarurtwert toAGC members.Thubu&tmummndedmp vvidethereaderwidtgpmrd fwmafwnrepr&gcw7vwlegad m.&=Itismxmbtconstraad asVecifrc legal advice or as a submwefor the needto seek conW&d Legal advice on specific legal martgm For more information on AGC's Legal Advisory Commiaex whose members contributeLegal Briefs.please mntactlohn Hakel at 626/608-5800orcheckAGC'swebsiteat hIVIAvww agc-eaorg. -2- Attachment 2 JOHN W. BUSBY H ATTORNEY AT LAW,P.C. 251 LAFAYETTE CIRCLE, SUITE 350 LAFAYETTE,CALIFORNIA 94549 Tel(925)299-9600 Fax(925)299-9608 April 21, 2008 Via Overnight Mail and Entail r.fisher@slocity.org City of San Luis Obispo Public Works Administration 919 Palm Street San Luis Obispo, CA 93401 Attn: Barbara Lynch Re: Gravity Sewer,Lift Station and Force Main Project Specification No. 99703 Response to Bid Protest of Whitaker Contractors,Inc. Dear Ms. Lynch: This office represents Mountain Cascade, Inc. .(hereinafter"MCP'). Mountain Cascade has had the opportunity to review the April 11, 2008 bid protest from,Whitaker Contractors, Inc. (hereinafter"Whitaker"), and offers the following response. Despite Whitaker's claims to the contrary, MCI is the lowest responsible responsive bidder and the contract should therefore be awarded to MCI. Whitaker is attacking MCI's bid in an effort to invalidate the MCI bid and have the contract awarded to Whitaker at an additional cost to the citizens of San Luis Obispo of approximately$113,316.00. First, California Public Contract Code section 3300(a) provides, "Any public entity . . . shall specify the classification of the contractor's license which a contractor shall'possess at the time a contract is awarded. The specification shall be included in any plans prepared for a public project and in any notice inviting bids required pursuant to this code." The City has specified and required in the contract documents for this project a Class A, General Engineering license. MCI is a licensed Class A General Engineering Contractor, License No. 422496. i Second, despite Whitaker's pure speculation to the contrary, there is no evidence that any. hazardous material will be encountered at the project site. Whitaker speculates that"[c]learly a hazardous license endorsement is required on this contract given the specific bid items, a long history of spills and contamination surrounding the site and voluminous plans and specifications j dealing with such." (See Letter from Whitaker dated April 11, 2008, Page 1.) Whitaker's interpretation of the plans and specifications,however, is misguided. A reading of the project 3 _5� Attachment 2 C - City of San Luis Obispo Public Works Administration April 21,2008 Page 2 specifications, Summary of Work 01010-4, clearly sets forth that with regard to Bid Item Nos. 17 and 18, which address Contaminated Material and Contaminated Groundwater, respectively, payment for additional costs for special handling of contaminated material and contaminated groundwater shall be paid for as Extra Work in accordance with Section 4-1.03 D "Extra Work"of the Standard Specifications. Bid Item Nos. 17 and 18 are classified as "supplemental"because there is no certainty that any contaminated material or groundwater will be encountered, despite Whitaker's speculation to the contrary. Lastly, MCI's President and Responsible Managing Officer, Michael Duke Fuller,has been fully qualified and licensed by the State of California Contractor's State License Board with a Hazardous Substances Removal and Remedial Actions Certification since 1992. I hope this will clarify any confusion Whitaker has attempted to create. Should you have any additional questions or concerns,please do not hesitate to contact me. Very tiv,dy yours, JOW. SBY 11 cc: Mountain Cascade, Inc. Attachment 2 Check A License: Contractor's License Detail Page 1 of 2 Skip to:CSLB Home I ContentI Footer I Accessibility Department of Consumer Affairs =4 v Contractors ata •i � a Oard y 11y) �y[. : j{� ,� �LKHII`L. } 3WIC ."4�S �.NrtS. 1 g r x .3 �yy�Ia'�p�a y,0��pp4.�•G �'._ ,��: �r+��-"..%r"''" ,:S' a.�.a_"arf��nJ �y'.sjs'y f�..{1.o y -y'ux•if6UR�l'�QF .6E1�aaL9rFD.:.� W 1 J-3; ..a: LL J..w!Y 1 F rt mill About CSLB CSLB Newsroom Board and Committee `' DISCLAIMER.A Ilcense status check provides hirformadon taken from the Meetings license database.Before relying On this Informadon,you should be aware of the Disaster Information following/lmitadons. Center • CSLB complaint disclosure is restricted by law(B&P 7124.61.If this entity is subject to put CSLB Library complaint disclosure,a link for complaint disclosure will appear below.Click on the link or Frequently Asked obtain Complaint and/or legal action Information. Qxestloms • Per S&P 7071.17.only Construction related civil judgments reported to the CSLB are disc] Online Services • Arbitrations are not listed unless the contractor falls to comply with the terms of the arbttra • Check A License or • Due to workload,there may be relevant Information that has not yet been entered onto the HIS Registration license database. • Filing a Construction Complaint o Processing Times License Number. 422496 Extract Dom; 04122/21 • Check Application Business MOUNTAIN CASCADE INC Status Information: P O BOX 5050 • Search for a Surety LIVERMORE,CA 94551 Bond Insurance Company Business Phone Number.(925)373-8370 • Search for a Workers' Ems' Corporation Compensation Issue Data: 05/10/1982 Company Expire Date: 05!31/2008 Now to Participate ucense Some: This license is current and active.All Inlo...Is on below should bl revlswed. ClasslNeations: CLASS DESCRIPTION - A GENERAL ENGINEERING CO A TOR Certifications: CERT DESCRIPTION HAZ HAZARDOUS SUBSTANCES gEMQVA Bonding: CONTRACTOR'S BOND This license filed Contractor's Bond number 6686663 In the amow $12,600 with the bonding company SAFECO INSURARQE cnMpativ OF AMERICA. Effective Data:01/01/2007 Contractor's BondingHistory BOND OF QUALIFYING INDMDUAL 1. The Responsible Managing Officer(RMO)MICHAEL DUKE FULLER certified that he/she owns 10 percent or more of the http://www2.cslb.ca gov/General-Information/interactive-tools/check-a-license/License+... 04/22/2008 i 3-5� Attachment 2 Check A License: Contractor's License Detail Page 2 of 2 voting stocklequity of the corporation.A bond of quaiitying Individual Is not required. _ Effective Date:06/16/2007 Workers' This license has workers compensation insurance with the Compensation: NATIONAL UNION FIRE INSURANCE COMPANY OF PIMSURt PA Policy Number.WC1593471 EBeetive Date:1010112007 Ezphv Date:10/012006 Workers'Compensation-Hl= Personnel listed on this license(current or disassociated)are listed on other licenses. Consumers Contractors Applicants Journeymen Public Works Building Officials General Info 1 IAP I y I I 9 I CSLB Home I Conditions of Use I Privacy I Contact CSLB. Copyright®2007 State of California I I I r j http://www2.cslb.ca.gov/General-Information/interactive-tools/check-a-license/License+... 04/22/2008 3 -�'3 J; Attachment 2 N ,M J r Contractors state License Board NOTICE of SUCCESSFUL COMPLETION of EXAMINATION 31 March 1992 Applicant. . . . . .. . .. .. FULLER, Michael Duke Application Fee No.. . 8801198 Examination Class.. . . Hol Examination Title... . Hazardous substance Certification Congratulations, you PASSED! i i I 1 I i i i i 1 3 -� y Attachment 2 �'�IOWuI�4pip�Nd�1►0.ii�'L �u�uWpm�atuuup►�!niumumi0►�aqu�umnoiumu�w�A��►uiMimim� 01, k �z� �✓ n toy > b y L �w fT 1m �ili A.S•'1. f] Gt Z �?Yn MN Co AV ra O 4 v � y�, ,}�5 .f n „ .rt n � •��` 1� :ley eWg�.2�.Q �s 1y1:�R°yb'y��-�r rSv'i t�.. ,v"yj�;•c c M5.1 r. v`tC;.,.+, �•; . .,ti 1i 1 . �Y ��g•`"'t W .. ., ,�c`^j'Y,h"' ,'C¢y'A(.,,H � tA�G�h � NMI : a! p►ii�niuiWu�uuwu�!muup�nwpmm�ntuq� Mn' , i i Attachment 2 JOHN W. BUSBY H ATTORNEY AT LAW,P.C. 251 LAFAYETTE CIRCLE,SUITE 350 LAFAYETTE,CALIFORNIA 94549 Tel(925)299-9600 Fax(925)299-9608 May 15, 2008 Via Email and Overnight Mail khampian@slocity.org Ken Hampian City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401-3218 Re: Gravity Sewer,Lift Station and Force Main Project Specification No. 99703 Response to May 2,2008 Bid Protest of Whitaker Contractors,Inc. Dear Mr. Hampian: This office represents Mountain.Cascade, Inc. (hereinafter"MCP'). MCI has been provided with a copy of the May 2, 2008 correspondence from Arthur G. Woodward, Esq.,counsel for Whitaker Contractors, Inc. (hereinafter"Whitaker"). MCI offers the following response. Whitaker's protest dated May 2,2008 is untimely and should be disregarded as moot. The opening of bids for this project occurred on April 10,2008 and Whitaker protested MCI's bid the next day. MCI provided a response to Whitaker's protest on April 21,2008. Thereafter, on April 29,2008 the City Administrative Officer approved the contract award to MCI, and MCI was notified of the award in writing on May 8, 2008.` The correspondence from Mr. Woodward, Whitaker's second letter of protest, addresses the same issues which have already been dealt with by the City. The only basis for Mr. Woodward's duplicative protest is that MCI did not hold a hazardous license endorsement on the bid date. Mr. Woodward has cited no authority that one was required, and according to the contract documents and MCI's previous letter, there was no such requirement. California Public Contract Code section 3300(a)provides, "Any public entity. . . shall specify the classification of the contractor's license which a contractor shall possess at the time a contract is awarded. The specification shall be included in any plans prepared for a public project and in any notice inviting bids required pursuant to this code." The City has specified and required ` A copy of the May 8,2008 correspondence from the City to MCI awarding the contract to MCI is attached hereto. 3 -s'4 Attachment 2 Ken Hampian City of San Luis Obispo May 15,2008 Page 2 in the contract documents for this project a Class A, General Engineering license? MCI is a licensed Class A General Engineering Contractor,License No. 422496. The contract documents do not,in contrast, require a hazardous license endorsement despite Whitaker's assertions to the contrary. Furthermore, despite Whitaker's speculation to the contrary,there is no evidence that any hazardous material will be encountered at the project site. A reading of the project specifications, Summary of Work 01010-4,clearly sets forth that with regard to Bid Item Nos. 17 and 18, which address Contaminated Material and Contaminated Groundwater,respectively,payment for additional costs for special handling of.contaminated material and contaminated groundwater shall be paid for as Extra Work in accordance with Section 4-1.03 D"Extra Work"of the Standard Specifications. Bid Item Nos. 17 and 18 are classified as"supplemental"because there is no certainty that any contaminated material or groundwater will be encountered, despite Whitaker's speculation to the contrary. Should you have any additional questions or concerns, please do not hesitate to contact me. Very truly yours, JO W. B '11 cc: David Hix (Via email) Arthur G. Woodward,Esq. (Via regular mail) Mountain Cascade, Inc. (Via email) z See Instructions to Bidders, page 2, paragraph 6. 3 .57 Attachment 3 Hix, Dave From: Fisher, Richard Sent: Monday, April 28, 2008 11:37 AM To: 'bwhitaker@whitakercontractors.com' Cc: Hix, Dave; Lynch, Barbara; Dietrick, Christine Subject: RE: Haz Mat Cert Brett, I personally called the contractors licensing board for further clarification. Michael Fuller under Mountain Construction received his Hazardous Material Certificate in 1992 . He pulled that certificate from that license on June 29, 2007 . The contractors licensing board clarified that the certificate runs with the individual not the company. The certificate can be applied to another license if that person is a principle. Michael Fuller is the Responsible Managing Officer for Mountain Cascade and therefore Mountain Cascade had a valid haz mat cert at the time of bid. Because of some unknown reason the contractors licensing board failed to post the haz mat cert on the Mountain Cascade license. An additional point is that on the last bridge project you constructed for the City of San ' Luis Obispo, per federal requirements a haz mat cert was required at the time of award not at the time of bid. We believe after talking to the contractors licensing board and with information we have received from Michael Fuller that Mountain Cascade had a valid haz mat cert at the time of bid even though it was not specifically required in the project special provisions. Now that the contractors licensing board has posted the haz mat cert on the Mountain Cascade license, it is clear that they have a valid haz mat cert prior to award. Richard Fisher Construciton Engineering Manager City of San Luis Obispo -----Original Message----- From: bwhitaker@whitakercontractors.com [mailto:bwhitaker@whitakercontractors.com] Sent: Friday, April 25, 2008 11:46 AM To: Fisher, Richard Cc: mbouusman@whitakercontractors.com Subject: RE: Haz Mat Cert Dear Richard, A closer inspection reveals what we suspected; The entity bidding the job, Mountain Cascade did not have .the license at the time of the bid. A different entity, Mountain construction inc. , with a different lic. # (494133) and no contractual obligations to this project, had a HAZ. lic at the time of bid, thus Mountain Cascade's bid should be rejected as non-responsive. Thanks, Brett Original Message: ----------------- From: Fisher, Richard rfisher@slocity.org Date: Fri, 25 Apr 2008 06:09:25 -0700 To: bwhitaker@whitakercontractors.com Subject: Haz Mat Cert Bret, 1 3-S8' • Attachment 3 i Please see the attached Haz Mat cert supplied my Michael Duke Fuller RMO for Mountain Cascade. The certificated was issued in April of 1992. I hope this satisfies your concerns. Richard Fisher Construciton Engineering Manager -------------------------------------------------------------------- mail2web.com — Enhanced email for the mobile individual based on Microsoft® Exchange - http://link.mail2web.com/Personal/EnhancedEmail 2 3,-meq Attachment 3;. �i►�911�II�ll11811111111�� IDIIIIIIIIII 11111111 �IIII L � C11111VOf SMvu�s OBISW Community Development Department•919 Palm Street, San Luis Obispo, CA 93401-3218 I May 1, 2008 Whitaker Contractors Inc. 2752 Concrete Court Paso Robles, Ca. 93446 Fax: 2264021 i Subject: Gravity Sewer, Lift Station and Force Main Project i Specification No. 99703 Bid Protest Brett; Thank you for your continued response in an effort to understand the City's position on this matter. After reviewing your arguments, project specifications, information provided by the Contractors Licensing Board and discussions with the City Attorneys office, the City is proceeding with the award to Mountain Cascade Inc. Any further protest to this action should be sent to Ken Hampian, City Administrative Officer at 990 Palm St. within ten days of the date of this letter. 7 BARBARALYNCH CITY ENGINEER i i Richard Fisher j Construction Engineering Manager I i I I i i The City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities. Telecommunications Device for the Deaf(805)781-7410. D • Attachment 3 r �H�II��IIII�I� IIU�I�III city o� SMWIS oBIspo Public Works Department• 919 Palm Street• San Luis Obispo, CA 93401-3218 May 8,2008 Mountain Cascade,Inc. Bill E.Williams Jr.,Vice President 555 Exchange Court Livermore,CA 94550 Subject: Gravity Sewer,Lift Station&Force Main Project Specification No.99703 Dear Mr.Williams: The City of San Luis Obispo is pleased to award your company the contract for the "Gravity Sewer, Lift Station & Force Main Project, Specification No. 99703", in the am ant not to exceed $9,179,000.00, approved by the City Administrative Officer on April 29, 2008. Enclosed is the original agreement for your signature. Upon execution of the agreement,we will mail you a copy to you for your files. I would like to call your attention to the City insurance requirements. Note: Insurance policies must be endorsed to name as "Additional Insured Parties: The City.of San Luis Obispo, its elective boards, officers, agents and any subcontractors in the performance of work for the City of San Luis Obispo". Copies of such endorsements must be sent with insurance certificates showing the required levels of coverage. The insurance company must carry a rating of A VII or better, in accordance with the AM Best Rating Guide. Please provide the City at least 30 days prior notice of any reduction or cancellation of insurance coverage. The City of San Luis Obispo requires(contractors or companies)doing work within the City limits to have a business tax certificate. If you do not have a tax certificate,please contact the Finance Department at(805)781-7134. The Finance Department will also need your Federal Tax Identification Number before payments can be processed to your company. This is standard City practice to allow compliance with Federal I.R.S. regulations. You can contact the Finance Department at (805)781-7135 to provide your tax information. ® The City of San Luis Obispo Is committed to Include the disabled in all of Its services,programs and activities. Telecommunications Device for the Deaf(805)781-7410. o . Attachment Mountain Cascade,Inc. Page Two Please return the signed contract,required insurance certificates and endorsements within eight(8)days,not including Saturdays,Sundays,or legal holidays,to the address below. The City looks forward to working with you- If you have any questions,please call David Hix,Project Manager,at(805)781-7039 or ' _ ocity.ora or you tray contact me at (805)781-7014 or nldng@slocit .org. City of San Luis Obispo Pamela Ding 919 Palm Street San Luis Obispo, CA 93401 805/781-7537(fax) incerely, amela K King e �' Public Works Department Enclosure: Agreement &.\Admiaist[etWoe Bmds4nsumcc\conuw foul tetoasvoo8199703 Gravity sewer Lift Stn-Ma mtan Cascade\%703 mum Casw&dec I 3 �a r council memoizanbum TO: City Council RECEIVED VIA: Ken Hampian, CAO 10 MAY 3 0 2008 FROM: John Moss,Utilities Directo ILO CITY CLERK BY: David Hix,Wastewater Division Manager SUBJECT: Public Hearing Item#3,June 3, 2008 Agenda Attached is additional correspondence for Council's consideration for Public.Hearing Item.3 , Appeal of Award of Tank Farm Project Contract. This letter, from the successful bidder, Mountain Cascade Inc, is in response to Whitaker Contactor's May 21, 2008 correspondence found in the staff report. The points made by the successful bidder's legal counsel are consistent with staffs position as set forth in the agenda report. m�wG RED FILE rLCOUNCIL g0CDD DIR ICAO FIN— MEETING AGENDA ACAO FIRE IR DATE! LITEM # 9ATTORNEY PW DIR — / JR CLERK/ORIG, R POLICE CHE _ --- —- - — - — DEPT HEADS--— pEC DIR UTIL DIR 6� 73I?if1a. �< HR DIR K eR0 Y- e cE•e.� JOHN W. BUSBY II ATTORNEY AT LAW,P.C. 251 LAFAYETTE CIRCLE,SUITE 350 LAFAYETTE,CALIFORNIA 94549 Tel(925)299-9600 Fax(925)299-9608 May 29,2008 Via Email and Overnight Mail jloweU@slocity.org Jonathan P.Lowell,Esq. City Attorney City of San Luis Obispo 990 Palm Street San Luis.Obispo,CA 93401 Re: Gravity Sewer,Lift Station and Force Main Project Specification No. 99703 Response to May 21,2008 Correspondence of Whitaker Contractors,Inc. Dear Mr.Lowell: This office represents Mountain Cascade,Inc. (hereinafter"MCP'). MCI has been provided with a copy of the May 21,2008 correspondence from Arthur G.Woodward,Esq.,counsel for Whitaker Contractors, Inc. (hereinafter"Whitaker"). MCI offers the following response. The May 21, 2008 correspondence from Mr. Woodward once again addresses the same issues which have been dealt with by the City, most recently in its Council Agenda Report regarding the Appeal of Award of Tank Farm.Project Contract in which the City recommends denial of Whitaker's appeal.' The only basis for Mr. Woodward's appeal is that MCI did not hold a hazardous license endorsement on the bid date, and the authority.cited by Mr. Woodward fails to support Whitaker's argument that one was required. Moreover,Whitaker's contention that MCI's failure to strictly comply with the bid document gave MCI an unfair competitive advantage is without merit;MCI has complied fully with the bid documents and all licensing requirements contained therein, as determined by the City. California Public Contract Code section 3300(a)provides,"Any public entity. . .shaU specify the classification of the contractor's license which a contractor shall possess at the time a contract is awarded. The specification shall be included in any plans prepared for a public project and in any notice inviting bids required pursuant to this code. (Emphasis added.) ' The Council Agenda Report is attached hereto as Exhibit"A". J Jonathan P. Lowell,Esq. City Attorney City of San Luis Obispo May 29,2008 Page 2 California Business &Professions Code section 7059(b), which provides that"in public works contracts, ... the awarding authority shall determine the license classification necessary to bid and perform the project,"allows agencies to specify that only designated license categories will be permitted to bid on a project. This allows an agency to make a.pre-bid determination that the public would be better served in terms of quality and economy by letting the project only to licensees with the most appropriate experience. (M&B Construction v. Yuba County Water Agency(1999) 68 Cal. App.4th 1353, 13612) In M&B Construction,the agency's bid specifications,prepared by the agency's engineer and approved by the agency's board of directors,required that the contractor constructing the project have a Class A general engineering contractor's license. (Id at 1357.) The agency contended that"the statutory directive of section 7059(b) to 'determine the license classification' authorizes it to select from among the license categories in deciding which classification(s) should be permitted to bid on the project." (Id. at 1359.) The Court ultimately determined that the agency's interpretation of section 7059(b)was supported by the legislative history of the subdivision which provided that: "Mis bill may reduce some of the board's requests for classification determination since it will allow the awarding authority to determine the licensing classification necessary for bidding a project." (1& at 1360, quoting,State and Consumer Services Agency,Dept. Consumer Affairs, Enrolled Bill Rep.,Assem. Bill No. 1741 (1987-1988 Reg. Sess.) Sept. 1, 1987,p.2.) Here,the City determined and specified in its Instructions to Bidders,page 2, paragraph 6, that the"Contractor must possess a valid Class A Contractor's License at the time of bid opening." MCI,as the City and Whitaker is aware, is a licensed Class A General Engineering Contractor, License No.422496,and was properly licensed as such at the time of bid opening in compliance with Bus. &Prof. Code section 7028.15(a). The contract documents do not require a hazardous license endorsement, although had the City determined pre-bid that such an endorsement should have been a prerequisite to bidding this project, it was certainly within its authority to do so, and it did not. Whitaker argues that a hazardous license endorsement is required because the contract documents include an entire section entitled"Hazardous and Contaminated Materials." Whitaker further argues that the scope of work contemplated by and identified in the Contract plainly called for work involving hazardous and contaminated materials. Not so. The City has clearly stated in its own contract documents, as MCI as discussed in its two previous letters,that Bid Item Nos. 17 and 18 are classified as "supplemental"because there is no certainty that any contaminated material or groundwater will be encountered. As such, with regard to Bid Item Nos. 17 and 18,which address Contaminated Material and Contaminated Groundwater, respectively, payment for additional costs for special handling of contaminated material and contaminated groundwater shall be paid for as Extra Work in accordance with Section 4-1.03 D "Extra Work"of the Standard Specifications. Z A copy of M&B Construction v. Yuba County Water Agency(1999)68 Cal. App. 4th 1353 is attached hereto as Exhibit"B". Jonathan P.Lowell,Esq. City Attorney City of San Luis Obispo May 29, 2008 Page 3 I intend to appear at the June 3, 2008 public hearing on behalf of MCI to answer any further questions the City may have. In the interim, should you have any additional questions or concerns, please do not hesitate to contact me. Very truly yours, JOHN W. BUSBY cc: David Hix(Via email) Ken Hampian(Via email) Arthur G. Woodward, Esq. (Via regular mail) Mountain Cascade,Inc. (Via email) 1 EXHIBIT "A" council ` 4 3 g acEnba izEpout 'm"°� CITY OF SAN LUIS OBISPO FROM: John Moss,Utilities Director 4 cv, Prepared By: David Hix, Wastewater Division Kwager SUBJECT: APPEAL OF AWARD OF TANK FARM PROJECT CONTRACT CAO RECOMMENDATION Deny the appal by Whitaker Contractors, Inc. and affirm.contract award.to Mountain Cascade . Inc, in the amount of$9,179,000.00 for the Tank Farm Gravity Sewer, Lift Station and Force lyra 2 Project, Specification No. 99703.- DISCUSSION 9703:DISCUSSION On February 12, 2008, City Council approved staff to advertise for bid the Tank Farm Gravity Sewer,.Lift Station and Force Main Project and authorized the City's Administrative Ofiicer.to award_the contract-if the bid was within the engineer's estimate. Eleven bids for the project were opened 'April 10'h with three of them being below the engineer's estimate'of$9,947,700. The lowest bid submitted was from Mountain Cascade Inc.,of Liverm9re Ca. for$9;179,000. Below is the project's bid summary: Table I. Tank-Farm MdSummary Mountain Cascade $9J79,000.00 Whitaker Contractors $9a92,316.00 PaVich Construction $9 464 60.00 R:Balker Inc. $10,28 000.00 Snadt.Construction Inc. $10,657,000.00 Stanek Constructors Inc. $10,992,000.00 IPS Mechanical Inc. $11759 658.00 Spe6iAlty Construction Inc $11,996,200.00. Diablo Contractors,rnc. $13;844,000.00. John Madonna $15 601 800.00 After:receiving the bids staff reviewed the three\lowest and.determined that Mountain Cascade was the lowest responsible bidder. The Task Farm Project specifications only required a valid class A ccntractor.'s license at the time of bid opening. No other licenses or certifications were required at the time of bid opening and fountain Cascade is in compliance with the licensing W all other bidding requirements. Appeal of Award for Tank Farm Project Page 2 Bid Protest On April 11,'2008, Whitaker Contractors protested the Mountain Cascade bid arguing that the contractor was required to possess a Hazardous Substances Removal Certificate endorsement at the time of bid to complete the work, given the probability of encountering hazardous materials. Staff contacted Whitaker and informed them that there were no requirements for the contactor to possess the Hazardous Substances Certification at the time of bid and that the City had confirmed that Mountain Cascade had complied with bid specifications. Moreover, in response to the concerns raised by Whitaker,Mountain Cascade provided additional jnformation,not required by the specifications, which further demonstrated prior to award its ability to perform all work specified and bid. Contaminated materials and groundwater handling are listed as extra pay items in the City's bid specifications because there is no guarantee that these conditions will be encountered. The City included the potential for encountering contaminated materialsin its specificationsin order to provide complete information and to facilitate precise bid amounts that would account for the contingency. However, no certification requirements were specified at time of bid. Notwithstanding. that the current protest is based on Whitaker's contention that Mountain Cascade failed to provide information that was not required at the time of bid,Mountain Cascade Inc.,did verify prior to award that it possesses a Hazardous Substance Removal Certificate. That certification was applied to Mountain Cascade by Mr. Michael Duke Fuller, the. firm's Responsible Managing Officer, who has been in possession of this certification since 1992. Accordingly, staff informed Whitaker that the City was moving forward to award the contract to Mountain Cascade. On April 29, 2008, the City Administrative Officer awarded the contract to Mountain Cascade and, on May 1, 2008, staff faxed a notification letter to Whitaker relating that the City was proceeding with award to Mountain Cascade (see Attachment 3). By letter dated May 2, 2008, and received by.the City Administrative Officer on May 6, 2008, Whitaker's legal counsel challenged the City's action to award the contract to Mountain Cascade (see Attachment 1). As the award had already been made, Staff considered the correspondence a timely administrative appeal in accxrdance with the City's Appeals. Procedures, set forth at Chapter 1.20 of the Municipal Code,and the matter is now before Council for final determination; Whitaker's attorney subsequently submitted an additional letter more fully setting forth the basis for the appeal. It remains Whitaker's position that the contract should not have been awarded to Mountain Cascade because Mountain Cascade was not properly licensed at the time of bid, as required by Business and Professions Code, Section 7028.15, which provides, inter afia, that "Any.contract awarded to...a contractor who is not Iicensed pursuant to this chapter is void." That Chapter (Chapter 9 —Contractors) simply requires that persons bidding on and perforating specified work be licensed as contractors in the relevant classification. In this case, the Contractors State License Board documentation reviewed by staff prior to award, and submitted as Exhibit B to Whitaker's May 21 letter,clearly establishes that Mountain Cascade is,and at all relevant times was, licensed under Chapter 9 in the classification of "general engineering C Appeal of Award for Tank Farm Project Page 3 contractor." The only provisions of Chapter 9 relating to the hazardous substance certification at issue here are those set forth in Section 7058.7 of that Chapter, as follows: (a)No contractor may engage in a removal or remedial action,as defined in subdivision (d), unless the Qualifier for the license has passed an approved hazardous substance certification examination. (exl) A contractor may not install or remove an underground storage tank, unless the contractor has passed the hazardous substance certification examination developed pursuant to this section. (2)A contractor who is not certified may bid on or contract for the installation or removal of an underground tank,if the work is performed by a contractor who is certified pursuant to this section. Thus, the only reference to the relevant certification relating to its necessity at the time of bid applies to storage tank removal; and that section explicitly permits.a contractor who is not certified to bid_on and contract for such a project. Accordingly, staff finds no requirement in Chapter 9 that an otherwise appropriately licensed contractor must demonstrate possession of a hazardous substances removal certification at the time of bid in order to be awarded a contract and,therefore,concludes that Whitaker's appeal is without merit. Award Determination Staff recommends award to Mountain Cascade Inc., because,it is the lowest responsible bidder that meets the bid requirements of the project specifications. Because there was neither a.bid requirement, nor a legal requirement to demonstrate possession of a Hazardous Substances Removal Certificate at the time of bid for this project, the possession of that certificate at the time of bid could not have been and was not considered in the decision to award to Mountain Cascade Inc. Having reviewed the project specifications and bids and considered the arguments raised by Whitaker, Staff recommends that Council deny the appeal and affum.the contract award to Mountain Cascade. CONCURRENCES The City Attorney and City Engineer concur with this recommendation. FISCAL EWPACT There is no additional fiscal impact.Fwulmg for.this project has been approved Appeal of Award for Tank Farm Project Page 4 ALTERNATIVES Award Contract to Whitaker Contractors Inc. This alternative is not recommended. Award to Whitaker Contractors would not be to the Iowest responsible bidder and would expose the City to possible litigation from other parties. ATTACHMENTS 1.Whitaker Protest Letters dated April 11,2008;May 2,2008;and May 21,2008 2.Mountain Cascade Response Letter dated April 21, 2008 3.Staff Correspondence dated April 28,2008(e-mail);May T:\Tank Farm Lift Station\Construction\Whitaker Protest\Tank Farm Protest CAR-doe EXHIBIT "B" Page I LE.YSEE 68 CAL.APP.4TH 1353 M&B CONSTRUCTION et al.,Plaintiffs and Respondents,v.YUBA COUNTY WATER AGENCY,Defendant and Appellant. No.CO27597. COURT OF APPEAL OF CALIFORNIA,THIRD APPELLATE DISTRICT 68 CaL App.49h 1353;81 Cal.Rptr.2d 231;1999 Cal.App.LEXIS 2;99 Cal.Daily Op. Service 181;99 Daily Journal DAR 190 January 5,1999,Decided PRIOR HISTORY: [***I) APPEAL from a defendant's decision was not based on favoritism and bias judgment of the Superior Court of Yuba County. by favoring holders of class "A"licenses over holders of Super.CtNo.CV062203.Dennis J.Buckley,Judge. other classes of license,so as to permit it to consider the relative superiority of the bidders, a prohibited practice, DISPOSITION: The judgment is reversed. The and did not conflict with the law giving the Contractors' superior court is directed to discharge the peremptory State License Board the exclusive right to license writ of mandate and enter a new judgment denying the contractors.(Opinion by Raye,J., with Blease,Acting P. writ petition.Appellant is awarded costs on appeal. J.,and Puglia,J.,*concurring.) * Retired Presiding Justice of the Court of SUMMARY: Appeal, Third District, assigned by the Chief Justice pursuant to article V1, section 6 of the CALIFORNIA OFFICIAL REPORTS SUMMARY California Constitution. The trial court granted a contractor's petition for a HEADNOTES writ of mandate directing a public agency to allow all legally licensed contactors to bid on a project The CALIFORNIA OFFICIAL REPORTS HEADNOTES agency had rejected plaintiffs low bid because he held a Classified to California Digest of Official Reports class "C" license, and the bid specifications required that the contractor constructing the project Have a class "A" (1a) (1b) (1c) Public Works and Contracts § general engineering contractor's license. (Superior Court 3—Contracts—Bidding Requirements—Limiting Bids of Yuba County, No. CV062203, Dennis J. Buckley, to Contractors With Certain License--Validity. —The Judge.) trial count erred in granting a petition for a writ of mandate brought by a contractor with a class"C" license The Court of Appeal reversed with directions to deny who challenged a public agency's bid,specifications that the petition.The court held that defendant was permitted required that the contractor constructing a certain project to determine the license required by the contractor for the have a class "A"general engineering contractor's License. project Under Bus. & Prof. Code, § 7059, subd (b), Under Bus. & Prof. Code, § 7059, subd (b), which which provides, In public works contracts. . . the provides, "In public works contracts . . . the awarding awarding authority shall determine the license authority shall determine the license classification classification necessary to bid and perforin the project, necessary to bid and perform the project," the statutory the statutory directive authorizes the awarding authority directive authorizes the awarding authority to select from to select from among the license categories in deciding among the .license categories in deciding which which classification or classifications should be permitted classification or classifications should be permitted to bid to bid on the project The court further held .that on the project In view of its legislative history, § 7059, C, Page 2 68 Cal.App.4th 1353,*;81 Cal.Rptr.2d 231,**; 1999 Cal.App.LEXIS 2,***l;99 Cal.Daily Op.Service 191 subd (b), does not merely direct the awarding authority authority to deal with problems in a sensible, practical to carry out the mandate of the second sentence of the way. statute, i.e., to identify all license classes whose type of work constitutes a majority of the Contract. The statute (6) public Works and Contracts § was adopted to clarify when contracts could be let to 3--Contracts-Bidding Requirements--Limiting Bids specialty contractors where the contract involved work to Contractors With Certain License—Favoritism. outside the specialty contractor's license, and was --In awarding a public works contract pursuant to a bid intended to reduce some of the Contractors'State License requirement limiting bids to contractors with a class "A" Board's requests for classification determination, since license, the public agency's decision was not based on the statute would allow the awarding authority to favoritism and bias by favoring holders of class "A" determine the licensing classification necessary for licenses over holders of other classes of license,so as to bidding a project It was also intended to give the permit it to consider the relative superiority of the awarding authority more flexibility and control in bidders,a prohibited practice.The agency did not make a deciding who it will be doing business with. postbid determination that one of the responsible bidders was relatively superior to the admittedly responsible low [See l Witkin, Summary of Cal. Law(9th ed. 1987) bidder. Nor did it devise bid specifications favoring a Contracts,§79.] particular contractor. Based on the recommendations of its engineer,the agency made a prebid determination that (1) Appellate Review § 144-Scope of the public would be better served in terms of quality and Review--Question of Law--Interpretation of Statute. economy by letting the project only to licensees with the —The interpretation and application of a statutory scheme most appropriate experience, while minimizing the,need to an undisputed set of facts is a question of law that is for subcontractors. The decision was not arbitrary, subject to de novo review on appeal. capricious or entirely lacking in evidentiary support, try § contrary to established public policy, or unlawful or (3) g procedurally unfair 29--Construction-.Language--Legislative Intent. —The objective of statutory interpretation is to ascertain (7) public Works and Contracts § and effectuate legislative intent In determining intent, 3--Contracts--Bidding Reqnirements--Responsible courts look fust to the words themselves, and when the Bidder. --Contracting entities are vested with great language is clear and unambiguous, there is no need for discretion in determining whether a bidder is responsible, construction. and an assessment of whether a bidder is responsible involves more than a consideration of trustworthiness. (4) Statutes § . 42—Construction—Aids. --When The word "responsible" in the context of the governing statutory language is susceptible to more than one statutes is not necessarily employed in the sense of a interpretation, courts turn to extrinsic aids, including the bidder who is trustworthy so that a fording of ostensible objects to be achieved, the evils to be nonresponsibility connotes antrustworthiness. Rather, remedied, the legislative history, public policy, while that term includes the attribute of trustworthiness,it contemporary administrative construction, and the also has reference to the quality,fitness, and capacity of statutory scheme of which the statute is a part. the low bidder to satisfactorily perform the proposed (5) Public Worsts and Contracts § work' 3--Contracts—Bidding Requirements—Purpose• (8) Public Works and Contracts § —Competitive bidding laws are passed for the benefit and 3--Contracts--Bidding Requirements--Limiting Bids protection of the taxpaying public, not for the benefit and to Contractors With Certain License—Validity. --In enrichment of bidders.Their purposes,among others,are awarding a public works contract pursuant to a bid to guard against favoritism improvidence, extravagance, requirement limiting bids to contractors with a class"A" fraud and corruption; to prevent the waste of public license, the public agency's decision was expressly funds; and to obtain the best economic result for the authorized by Bus. & Prof. Code, § 7059,subd (b) (the public. These considerations must be viewed from a awarding authority shall determine the license practical perspective lest competitive bidding provisions classification necessary to bid and perform a project),and be misapplied, denying the contracting public entity C� Page 3 68 Cal.App.4th 1353,*;81 Cal.Rptr.2d 231,**; 1999 Cal.App.LEXIS 2,***1;99 Cal.Daily Op.Service 181 thus did not conflict with the law giving the Contractors' 23 percent earthwork, 4 percent fencing, and 4 percent State License Board the exclusive right to license miscellaneous (steel work, water control gate, meter contractors. The agency's decision went only to its own installation and erosion control). dealings with contractors, and had no effect on contractors' dealings with third parties. There is nothing The California Conesfor State License Board in the general law that conflicts with the agency's right to issues class "A" licenses for general engineering consider license classifications in determining whether a contractors . whose principal business involves fixed bidder is qualified to bid on a contract. [*13571 works requiring specialized. engineering knowledge and.skill, including irrigation,drainage,water COUNSEL: Bartkiewicz, Kmaick& Shanahan,Alan B. supply, flood control, pipeline, and related excavating, Lilly and Richard P. Shanahan for Defendant and grading, tr=hing and concrete work. ( Bus. & Pro}: Appellant Cale, § 7056; Cat Code Regs., tit. 16, §830.)Class "B" licenses [***31 are issued for general building Rich, Fuidge, Morris & Iverson and David R. Lane for contractors whose principal business involves buildings Plaintiffs and Respondents. and similar structures. (Bus. & Prof. Cale, § 7057; Cal. Code Regs., tit. 16, § 830.) Class "C" specialty licenses JUDGES:Opinion by Raye,J.,with Blease,Acting P.J., are issued for specialty contractors who perform and Puglia,J.,*concurring. construction work requiring special skills, and whose principal business involves the use of specialized * Retired Presiding Justice of the Court of building trades or crafts. ( Bus. & Prof. Cale, § 7058; Appeal, Third District, assigned by the Chief Cat Code Regs., tit. 16, § 832.) The Contractors' Justice pursuant to article VI, section 6 of the [**233] State License Board's regulations designate California Constitution. numerous specialties for which a class "C" license may be issued; each bearing a specialty designation number OPINION BY:RAPE following the letter"C."(Cat Code Regs., tit. 16, §832- 832.62.) OPINION *1356] [*x232] RAYE,J• The Agency's bid specifications, prepared. by the [ Agency's engineer and approved by the Agency's board Defendant Yuba County Water Agency(the Agency) of directors, required that the contractor constructing the appeals from a judgment granting plaintiff M & B project have a"Class A" general engineering contractor's Construction's petition for writ of mandate. The trial license. On May 9, 1997, the Agency opened the nine court found the Agency lacked discretion to require that bids received on the project All bidders had a class "A" bidders on a construction project bid have a class "A„ license except plaintiff, which held only a class "B" contractors license. It directed the Agency t0 allow all general contractor'' license and two class "C" specialty legally licensed contractors to bid on the project. We licenses (class [***4] "C-8" for concrete and "C-12" for earthwork and paving). reverse. [***2] FACTS 1 Under Contractors' State Board regulations, a "C-8"concrete contractor installs"specified mass, The pertinent facts are undisputed.In April 1997 the pavement, flat and other concrete work; and Agency solicited bids pursuant to Public Contract Cale places and sets screeds for pavements or section 22032,subdivision(e)for construction of the fust flatwork"(Cal. Code Regs., tit 16, §832.08.)A phase of a canal and pipeline project. The` project, "C-12" earthwork and paving contractor "digs, intended to deliver surface river water to a .water moves;and places material forming the surface of company, required construction of 3,400 feet of the earth,other than water,in such a manner that a earth-lined canal, 903 feet of 6-foot diameter concrete cut, fill, excavation, grade, tench, backfill, or pipeline, and related structures. The Agency's engineer tunnel (if incidental thereto) can be executed" estimated project costs would be allocated approximately Cal.Cale Regs.,tit. 16, §832.12.) 35 percent for the pipeline,34 percent structural concrete, pladritiff submitted the lowest monetary bid,but was Page 4 68 Cal.App.4th 1353,*1357r-.O 2 Service 181 1999 Cal.App.LEXIS 2.sss4,99 Cal.DailY p rejected because it lacked the class "A" license. Plaintiff DISCUSSION submitted a written objection to the Agency; contending I. it was required to let the bid to the lowest monetary bidder. The Agency postponed awarding the project to Although the initial invitation for bids was permit further investigation and communication with superseded by a subsequent invitation for bids,the parties plaintiffs counsel. contend this appeal is not moot because it involves a The Agency's engineer identified numerous reasons matter of public interest which is likely to recur. We for requiring a class "A" licensed [***51 prime agree,and will consider the issue on its merits.4See,e.g., contractor on the project, including complexity, type of Doe v. Wilson(1997)57 Cal.App. 4th 296, 305[67 Cal. equipment involved, and the fact that class "A" Rptr. 2d 187];see also Ballard v.Anderson(1971)4 Cal. contractors typically perforin the type of work involved -?d 873, 876-877 [95 Cal. Rptr. 1, 484 P.2d 1345, 42 in constructing the heavy, reinforced vertical concrete A.LR.3d 1392]; Colombo Construction Co. v. Panama walls involved in the project while class"C" contractors Union School Dist (1982) 136 Cal. App. 3d 868, 875 1186 Cal.Rptr.463].) typically do only flat work. The Agency engineer also urged the use of a class "A" contractor would minimize [*:2341 II. the number of subcontractors needed on the project, increasing the likelihood change orders could be Public Contract Code[***7] section 3300,enacted implemented [*13581 efficiently. Finally, he noted that in 1985,provides:"(a)Any public entity ....shall specify even if the bid specifications permitted a class "C" the classification of the contractor's license which a license, he would have recommended at least a "C-34" contractor shall possess at the time a contracts isawns s (pipeline contractor) license.2( Cal. Code Regs., tit. 16, The specification shall be included in any P Prepared § 832.34.) After considering the recommendations of its for a public project and. in any notice invitingbids engineer and other staff, as well as information from required pursuant to this Code." plaintiff, the board adopted Resolution No. 1997-11, confirming rejection of plaintiffs bid because it lacked a [*1359] Two years later, Business and Professions class"A"license,and fording that such a bid requirement Code section 7059, subdivision (b) (hereafter section was reasonable and appropriate. 7059(b)) was enacted and provides in relevant part: "In public works contracts,as defined in Section I101 of the 2 Under the Contractors' State License Board . Public Contract Code, the awarding authority shall regulations,a C-34 pipeline contractor"fabricates determine the license classification necessary to bid and and installs pipelines for the conveyance of fluids, perforin the project. In no case shall the awarding such as water, gas, or petroleum, or for the authority award a prime contract to a specialty contractor containment or protection of any other material, whose classification constitutes less than a majority of the including the application of protective coatings or project,,(Italics added.) systems and the trenching, boring, shoring, backfilling, compacting, paving avin and surfacing (la) Defendant contends the statutory.directive of necessary to complete the installation of such section 7059(b) to "determine the license classification" pipelines."(Cal.Code Regs.,tit. 16,832.34.) authorizes it to select from among the license categories in deciding which classification(s)should be permitted to [***6] Plaintiff obtained a writ of mandate bid on the [***8] project. In contrast. Plaintiff contends directing the Agency to allow all contractors that "are the first sentence of section 7059(6) merely directs the legally licensed to perform such work of improvement as any to carry out the mandate of the second sentence, prime contractors" to submit bids on the project.Plaintiff i.e. to identify all license classes whose type of work subsequently filed a motion for attorney fees on which constitutes a majority of the contract. We therefore the trial court delayed Wiling pending the outcome of the consider whether the word"detertnine" in subdivision(b) present appeal. The Agency had already issued a second is used in the sense of selecting, i.e., exercising some invitation for bids, eliminating the class "A" license judgment or discretion, or whether it simply means the requirement and making other changes not relevant here. ministerial act of identifying or listing. Plaintiff was not the low bidder. Page 5 68 Cal.App.4th 1353,*1359;81 Cal.Rptr.2d 231,*"234; 1999 Cal.App.LEXIS 2,***8;99 Cal.Daily Op.Service 181 (2) " '[T]he interpretation and application of a Sanitation Dist.(1990)222 Cal.App.3d 1362, 1368[272 statutory scheme to an undisputed set of facts is a Cal. Rptr. 4581; Konica Business Machines U.S.A., Inc. question of law. . .which is subject to de novo review on v. Regents of [**235] University of California (1988) appeal . . . .' . . ." (Cal-Air Conditioning, Inc. v. Auburn 206 Cal.App.3d 449,456[253 Cat Rptr.5911.) Union School Dist. (1993)21 Cal.App. 4th 655, 667[26 Thi considerations must be viewed from a Cat Rptr. 2d 7031, citation omitted; Valley Crest tactical active lest.com competitive bidding visions landscape, Inc. v. City Council(1996)41 Cal. App. 4th P perspective g pro 1432, 1437[49 Cat Rptr.2d 184].)There may have been be misapplied, denying the contracting public entity " some confusion whether the proceeding below involved authority to deal [***1I] with problems in a sensible, traditional or administrative mandamus. However, since Practical way.' [Citation.]" (Domar Electric, Inc. v. City the material facts are stipulated and the only question is of Los Angeles(1994) 9 Cal. 4th 161, 173[36 Cal. Rptr. interpretation of a statute, the distinction makes no 2d 521, 885 P.2d 9341; see Ghilotti Construction Co. v.' difference [***9] in this appeal.(See McIntosh v. Aubry City of Richmond(1996) 45 Cat App. 4th 897, 908 [53 (1993) 14 Cal. App. 4th 1576, 1584.[18 Cat Rpm 2d Cal.Rptr. 2d3891.) 6801.) In such a situation, we exercise independent (Lc)The Agency's interpretation is supported by the judgment, whether the issue arises by traditional or legislative history of the subdivision. Section 7059(b) administrative mandate.(Ibid.) was adopted pursuant to Assembly Bill No. 1741 We begin with familiar rules of statutory (1987-1988 Reg. Sess.) which was sponsored by the construction. (3) " 'Mhe objective of statutory Contractors' State License Board to clarify when is to ascertain and effectuate legislative contracts could be let to specialty contractors where the interpretation intent, . In determining intent we look first tthe contract involved work outside the specialty contractoes words themselves. . . . When the language is clear and license.,(See State and Consumer Services Agency,Dept. o. unambiguous, there is no need for construction.' " ( 1741Cons (198 Affairs, Enrolled Bill Rep., Assam. Bill he Poliak v. Board of Psychology (1997) 55 Cat App. 4th neo (1987-repo Reg. Sass.) Sept. 1, 1987, ap. l.) The of 342, 360[63 Cat Rptr. 2d 8661,citations omitted) (1b) the barlled bill report states: "This bill may reduce on since ce Considering only the haze language of section 7059(6), itte board's requests for classification determination since the it will allow the awarding authority to determine the e word "determine" reasonably could be construed to convey the meaning ascribed by either party. (See, e.g., licensing classification necessary for bidding a project" Am. [*1360] Heritage Dict.(3d ed. 1992)p.509.)(4)In (Id at p. 2, italics added.) It further noted, "Under AB such a circumstance,we nun to extrinsic aids,including" 1741 the specialty contractor would be protected[***12] 'the ostensible objects to be achieved, the evils to be from spending time and money in a public works bid remedied, the legislative history, public policy. Process only to find him or herself disqualified after contemporary administrative construction. and the being the low bidder. The awarding [*1361] authority statutory scheme of which the statute is a part.' would have more flexibility and control in deciding who [Citation]" [***10] ( Poliak Y. Board of Psychology, it will be doing business with."(Id at p.3; italics added) supra,55 Cal.App.4th at p.360.) (6)Plaintiff contends the Agency's decision is based (5) "Competitive bidding laws are passed for the on "favoritism and bias" because the Agency favored benefit and protection of the taxpaying public,not for the holders of class"A"licenses over holders of other classes benefit and enrichment of bidders. [Citation.] Their of license.It urges that allowing an agency to select from purposes, among others, are ' "to guard against among arguably qualified license categories permits the favoritism, improvidence, extravagance, fraud and agency to consider the "relative superiority" of the corruption; to prevent the waste of public funds; and to bidders, a Practice Prohibited in City of.Inglewood-LA. obtain the best economic result for the public." ' " (Stacy County Civic Center Auth v. Superior Court (1972) 7 & Witbeck, Inc. v. City and County of San Francisco Cat 3d 861, 867 [103 Cal. Rptr. 689, 500 P.2,d 601]. (1995)36 Cal. App. 4th 1074, 1094-1096[44 Cal. Rptr. However, as the Supreme Court later noted, its decision 2d 4721; see also Associated Builders & Contractors v. in City of Inglewood"did not involve a challenge to the Contra Costa Water Dist. (1995) 37 Cal. App. 4th 466, validity of particular bid requirement,nor did it concern 469470 [43 Cat Rptr. 2d 600]; Boydston v. Napa a situation where the lowest monetary bidder had failed J Page 6 68 Cal.App.4th 1353, *1361;81 Cal.Rptr.2d 231,**235; 1999 Cal.App.LEXIS 2, ***12,99 Cal.Daily Op.Service 181 to comply with all advertised bid requirements." (Domar supra.36 Cal.App.4th at p. 1094,fn. 9.) Electric, Inc. Y. City of Los Angeles, supra, 9 Cal. 4th at [ss*14] [*1362] [**236] (S) Plaintiff also p. 178[finding municipality[***13] could deny contract to low bidder who failed to comply with bid specification contends because the Contractors' State License Board requiring documented outreach efforts to minority and has the exclusive right to license contractors pursuant to woman-owned subcontractors].) . Business and Professions Codes sections 7028 et seq., 7032 and 7059, the Agency is preempted from "making Here, unlike in City of Inglewood, the Agency did new or different requirements for the qualifications of not make a postbid determination that one of the contractors." "'"Local legislation in conflict with general responsible bidders was relatively superior to the law is void. Conflict exists if the ordinance duplicates admittedly responsible low bidder. Nor did it devise bid [citation], contradicts [citation], or enters an area fully specifications favoring a particular contractor. Based on occupied by general law, either expressly or by the recommendations of its engineer, the Agency made a legislative implication [citation]." ' " (Stacy & Wirbeck prebid determination that the_public would be,better Inc. v. City and County of San Francisco, supra, 36 Cal. served in terms of quality and economy by letting the App. 4th at p. 1091.) However, those circumstances do project only to licensees with the most appropriate not apply here.The Agency's decision affects only which experience, while minimizing the need for category of licensee may bid on a particular contract,not subcontractors.Such an administrative decision is subject who may be licensed,.or the qualifications for licensure. to reversal only if it is " ;arbitrary, capricious or entirely lacking in evidentiary support,...contrary to established In Stacy & Witbeck Inc. v. City and County of San public policy or unlawful or procedurally unfair. . .: " ( Francisco, supra 36 Cal. App. 4th 1074, the court Mike Moore's 24-Hour Towing v. City of San Diego reject an essentially identical preemption argument (1996) 45 CaL App. 4th 1294, 1303 (53 Cal. Rptr. 2d raised by a contractor precluded from bidding on a 3551.) (7)(See fit.3.)We conclude that it was not. 3 municipality's contracts because he previously submitted a false claim.(Id at pp. 1095-1096.) [***151 The court 3 Though we are not. faced with the found the municipality's refusal to consider bids from the "responsibility" issue considered by the court in contractor was not preempted by the Contractors' State City of Inglewood-LA. County Civic Center Aurh. License Law.(Id. at p. 1096;Bus. & Prof. Code, § 7000 v. Superior Court, supra, 7 Cal. 3d 861, we note et seq.) It reasoned "While disciplinary action affecting that contracting entities are vested with great the licensing stature of a contractor clearly is fully and discretion in determining whether a bidder is completely covered by general law, the matter of how responsible. (See Stacy & Witbeck, Inc. Y. City municipalities interpret and carry out their ditties under and County of San Francisco,supra, 36 Cal.App. the competitive bidding mandates of their own charter or 4th at p. 1094,fh 9;Boydston Y.Napa Sanitation the Public Contract Code is not.Further, there is nothing Dist., supra, 222 Cal. App. 34 at p. 1369.) in the general law indicating that local regulation in the Contrary to plaintiffs interpretation, an area of controlling future contract relations with public assessment of whether a bidder is responsible works contractors would be an anathema. And finally, involves more than a consideration of since the local regulation only goes to the City's own trustworthiness. As the court stated in City of business dealings with contractors and not to any third Inglewood supra 7 Cal. 3d 861: "It bears party relationship,it is difficult to view this as a matter in emphasis that the word'responsible in the context which transient citizens of the state would be particularly of the statute is not necessarily employed in the concerned."(36 Cal.App. 4th at p. 1096.) sense of a bidder who is trustworthy so that a finding of nonresponsibility connotes Here, as in Stacy & Witbeck, the Agency's decision untrustworthiness. Rather, while that term goes only to its own dealings with contractors,and has no includes the attribute of trustworthiness, it also impact on contractors' dealings with third parties. has reference to the quality, fitness and capacity [***16] There is nothing in the general law which of the low bidder to satisfactorily perform the conflicts with the Agency's right to consider license proposed work." ( Id. at p. 867; accord, Stacy & classifications in determining whether a bidder is Witbeck Inc. v. City and County of San Francisco qualified to bid on a contract. On the contrary, we find Page 7 68 Cal.App.4th 1353,*1362;81 Cal.Rptr.2d 231,**236; 1999 Cal.App.LEXIS 2,***16;99 Cal.Daily Op.Service 181 authority to make such a determination is expressly Blease,Acting P.J.,and Puglia,J.,`concurred. granted by section 7059(b). * Retired Presiding Justice of the Court of [*1363] DISPOSITION Appeal, Third District, assigned by the Chief lustice pursuant to article Vl, section 6 of the The judgment is reversed. The superior court is California Constitution. directed to discharge the peremptory writ of mandate and enter a new judgment denying the writ petition.Appellant is awarded costs on appeal.