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HomeMy WebLinkAbout13- Developmetn Services ORIGINAL CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION From: Valerie C. Ross,Director Subject: Resolution awarding a contract to Bomel Construction Company, Inc. for Dept: Development Services Construction of the Metrolink Parking Structure at 1275 W. 3rd Street near the Date: January 20,2010 Santa Fe Depot (GB 04-19), Federal Project No. CML-5033 (039), EA #08- File No. GB04-19 9248831 per Plans and Special Provisions Nos. 12591, 12328, 12336, 12337, 12327, 12348(GB04-19). MCC Date: February 16, 2010 Synopsis of Previous Council Action: 06/23/2009 The Mayor and Common Council adopted the FY 2009/10 to 2013/14 Capital Improvement Program. 07/16/2007 Adopted Resolution No. 2007-247 authorizing the execution of Amendment No. 5 to the Cooperative Agreement with the San Bernardino Associated Governments (SANBAG) for the Metrolink Commuter Rail Station and the Santa Fe Depot Rehabilitation Project, Contract No. 04-040. 09/19/2005 Adopted Resolution No. 2005-317 authorizing the execution of Amendment No. 3 and ratifying Amendment No. 2 to the Cooperative Agreement with the San Bernardino Associated Governments (SANBAG) for the Metrolink Commuter Rail Station and the Santa Fe Depot Rehabilitation Project, Contract No. 04-040. Recommended Motion: Adopt Resolution. Valerie C. Ross Contact Person: Robert Eisenbeisz,City Engineer Phone: 5203 Report,Resolution Staff Supporting data attached: &Location Map Ward: 1 &3 FUNDING REQUIREMENTS: Amount: $5,342.660 Source: (Acct.No) 242-362-5504-7576 Acct.Description: Santa Fe Depot Parking Structure Finance: Council Notes: 455'0 o20/0 —30 Agenda Item No.�3_ 2 -t& - to i CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Resolution awarding a contract to Bomel Construction Company, Inc. for construction of the Metrolink Parking Structure at 1275 W. 3rd Street near the Santa Fe Depot (GB 04-19), Federal Project No. CML-5033 (039), EA #08-9248831 per Plans and Special Provisions Nos. 12591, 12328, 12336, 12337, 12327, 12348 (GB04-19). Background: On December 1, 2003, the Mayor and Common Council adopted Resolution No. 2003-339 approving Cooperative Agreement No. 04-040 with the San Bernardino Associated Governments (SANBAG) establishing a Metrolink Commuter Rail Station and authorizing the City's participation in the rehabilitation and restoration of the historic Santa Fe Depot. On September 19, 2005, the Mayor and Common Council adopted Resolution No. 2005-317 approving Amendment No. 3 to Cooperative Agreement No. 04-040 which authorized the City and SANBAG to participate, financially and as co-owners of the property, in the design and construction of a parking structure near the Santa Fe Depot for Metrolink riders and designating the City as the lead agency for design and construction of the project. The City was also designated as applicant for federal Congestion Management and Air Quality (CMAQ) funds, which is the source of approximately 70%of the funding for the project. On July 16, 2007, the Mayor and Common Council adopted Resolution No. 2007-247 approving Amendment No. 5 to Cooperative Agreement No. 04-040 increasing the amount of federal CMAQ funds and increasing SANBAG's funding contribution to the project. On June 23, 2009, the Mayor and Common Council approved the FY 2009/10 Capital Improvement Program (CIP), which included construction of the Metrolink Parking Structure near the Santa Fe Depot. The new parking structure will provide approximately 350 additional parking spaces primarily for use by Metrolink riders. The plans and specifications for this project were completed and the project advertised locally in the San Bernardino County Sun Newspaper, F. W. Dodge, Construction Data Hot Sheet, Reed Construction Data and Bid America, Construction Bid Source, the City's web sites, and the San Bernardino Area Chamber of Commerce. A total of six (6)bids were received and are listed below: Name of Bidder city Amt. of Basic Bid Bomel Construction Company Inc. Anaheim Hills $ 4,167 526.00 HBParkco Construction, Inc. Costa Mesa $ 4,509,341.41 WM Klorman Construction Company* Woodland Hills $ 4,775,987.02 McCarthy Newport Beach $ 4,925,083.00 2 i CITY OF SAN BERNARDINO —REQUEST FOR COUNCIL ACTION STAFF REPORT—Continued Webcor Builders Los Angeles $ 5,139,994.85 FTR International Inc. Irvine $ 5,886,206.00 En ineefs Estimate $ 8,000,000.00 *WM Klorman Construction Company was declared non-responsive because they did not complete their bid in accordance with bidding instructions. After a complete review of the six (6) sealed competitive bids and verification of mathematical calculations and certifications, staff has determined that Bomel Construction Company, Inc. of Anaheim Hills is the apparent low bidder and has met the minimum requirements of the specifications and bid guidelines. A protest of the bid was received from the HBParkco Construction, Inc., the second lowest bidder, and then rescinded on February 5, 2010 by Ronald Taber, Vice President Business Development for HBParkco Construction, Inc. Attached is a copy of the protest dated December 29, 2009 from the law firm of Kamine Collings & Phelps, P.C., and the aforementioned rescission letter. Based on the above information, Bomel Construction Company, Inc. is the lowest responsible bidder and staff recommends that the contract be awarded to them. The estimated project costs are as follows: Total Cost Bid Amount $ 4,167,526.00 Contingencies $ 625,134.00 Subtotal Construction Cost $ 4,792,660.00 City Staff Construction Oversight $ 50,000.00 Construction Management& Inspection $ 405,385.00 Total Estimated Construction Cost $ 5,248,045.00 A contingency of 15% is included in the estimate to address unknown and unexpected costs during construction. Transtech Engineering, Inc. will provide construction management and inspection services and City staff will be responsible for the overall project. If approved, this project is expected to begin construction in late April of 2010 and be completed by April of 2011. During construction, at least 35 parking spaces along the north side of the new parking structure will be displaced for a period up to one year. In recent months, more than 35 empty parking spaces have been routinely observed in the auxiliary parking lot west of the Mt. Vernon Bridge. Therefore, no adverse impact to parking is anticipated during construction. Access to the regular Metrolink parking lot and the auxiliary parking lot west of the Mt. Vernon Bridge will be maintained at all times during construction. 3 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT—Continued Financial Impact: Caltrans approved the National Environmental Policy Act (NEPA) document for the parking structure in April of 2009. Federal funding for construction under the CMAQ program was obligated on June 22, 2009 in the maximum amount of $6,608,000, which is eligible for reimbursement from Caltrans. In addition, SANBAG, under terms of Cooperative Agreement No. 04-040, has committed a maximum amount of $4,321,685 toward construction of the project. Due to the current favorable bidding climate, the bids received were significantly less than the engineer's estimate prepared in 2005. Reimbursement from Caltrans and SANBAG will be monthly and will be based on the actual amount expended during the time period for which reimbursement is being sought, subject to the limitation of the maximum amounts obligated. Funding for this project is available in the FY 09/10 Budget in Account No. 242-362-5504-7576 "GB04-19 Santa Fe Depot Parking Structure - Metrolink". Recommendation: Adopt Resolution. Attachments: 1-Attachment"A" - Location Map 2-Letter of bid protest dated 12/29/09 from the legal firm of Kamine Collings & Phelps, P.C. 3-Letter of response dated 01/19/10 to bid protest from the legal firm of Trachtman & Trachtman Attorneys at Law. 4-Letter of notice to rescind bid protest, submitted by facsimile and dated 02/05/10, from Ronald R. Taber of HBParkco Construction, Inc. 5-Resolution 4 Project Location Map N I st q LJ a PROJECT LOCATION dSt U_y�acific a � _ S z Btoadway P W 3rd St ■ on Main St I � � �• [Metrolink = r W a St S� ; Wa 1W 2nd W 121ndt � � w W Kling St w 9r m° _ S A< D z 2 ATTACHMENT "A" LOCATION MAP METROLINK PARKING STRUCTURE PLANS AND SPECIAL PROVISIONS NOS. 125919 123289 123369 123379 12327 AND 12348. I i KAMINE COLLINGS G PHELPS, P.C. LAWYERS 523 WEST 6TH STREET, SUITE 546 LOS ANGELES, CALIFORNIA 90014 -213) 972-0119 FAX (213) 972-0005 WWW.KCPLAWYERS.COM December 29, 2009 Rachel Clark City Clerk Transmitted by Fax to (909) 384-5158 City of San Bernardino 300 North "D" Street Prior to Mailing USPS 2nd Floor San Bernardino, CA 92418 Re: City of San Bernardino Metro Link Parking Structure GB 04-19, Federal Project No. CML-5033(039), EA #08-924883L Bid Protest by H B Parkco Construction, Inc. Our file No. 542.999 Dear Ms. Clark: We represent H B Parkco Construction, Inc. ("Parkco") on the contract referred to above. This letter is intended to be: (1) A protest against any award of that contract to any bidder other than Parkco. (2) A request under Gov. Code § 54954.1 for mailed notice of all meetings of the City Council or other awarding authority at which any issues pertaining to the award of that contract are on the agenda for the meeting. If there is any fee for this service, please telephone that information to us immediately, so we can promptly pay the fee. (3) A request to be informed (by telephone or fax) as soon as any staff reports or recommendations concerning any issues pertaining to the award of that contract are available to the public, so we can immediately inspect those reports or recommendations. (4) A request to address the City Council or other awarding authority before or during consideration of any issues pertaining to the award of that contract, which opportunity is guaranteed by Gov. Code § 54954.3(a). Rachel Clark, City Clerk Page No. 2 December 28, 2009 If this letter is not sufficient to accomplish any of these purposes, please let us know immediately what else is required, so we can comply. If we do not hear from you, we will proceed on the basis that this letter is sufficient. Grounds for Bid Protest An award of the contract to any bidder besides Parkco would violate the competitive bidding laws, standards and practices applicable to California public works contracts because the bid of Bomel Construction Co. ("Bomel") is non-responsive to the request for bids. The bid of Bomel is defective in several material respects, as discussed below, and should be disregarded. The BOMEL Bid was Non-Responsive To the Request for Bids in Failing to Supply Annual Gross Receipts for Subcontractors Shown on Exhibit 12 G (Part I) The bid documents state that the award will be made to the lowest responsible bidder. (Section 3-1.04, p. SP-15.) Additionally, a bid must be responsive in that it conforms in all material respects with the bid requirements and the contract documents. (Taylor Bus Service, Inc. v. San Diego Board of Education (1987) 195 CA3d 1331, 1341.) For this Project, bidders were required to submit a "Bidder's List of Subcontractors (DBE and Non-DBE) — Part I [Exhibit 12-G/Pt. l]. Exhibit 12-G/Pt. I states: "The bidders shall list all subcontractors (both DBE and non-DBE) . . . per Title 49, Section 26.11 of the Code of Federal Regulations (49 CFR 26.11). The City of San Bernardino Metro Link Parking Structure ("Project") is the subject of federal financial assistance (Federal Project No. CML-5033(039), EA #08- 924883L). (Notice Inviting Bids, p. A-2, and Section 2-1.03, p. SP-7.) In order to receive federal financial assistance, 49 CFR 26.11 requires the City of San Bernardino to obtain certain information about DBE and non-DBE contractors and subcontractors who work on federally assisted contracts. That information includes: (1) firm name; (2) firm address; (3) firm status as a DBE or non-DBE; (4) age of the firm; and (5) annual gross receipts of the firm. City of San Bernardino has several options in terms of how to obtain the information. One of these options is to request the data from all bidders, before or after bid due date. (49 CFR 26.11(c)(3)). The City of San Bernardino determined that the data was required at bid due date. Addendum No. Three to the bid and contract documents for the Project, in response to Question 30, advises bidders that Exhibit 12-G/Pt. I shall be completed in all portions, "except the right column identified as 'Local Agency Use Only (Certified DBE?).' Failure to return all documents in the bid package fully completed and executed, where applicable, may render the bid being declared non-responsive." (Emphasis added.) Rachel Clark, City Clerk Page No. 3 December 28, 2009 City of San Bernardino, in compliance with obtaining federal financial assistance, required that the completed form Exhibit 12-G/Pt. I be submitted with the bid and so advised all bidders with Addendum No. Three. In submitting its bid, Bomel acknowledged receipt of all bid addendums. Yet, Bomel did not properly complete Exhibit 12-G/Pt. I. Bomel was required to supply: (1) firm name; (2) firm address; and (3) the annual gross receipts of the firm. Firm status as a DBE or non-DBE and age of the firm were reserved for City of San Bernardino to complete in order to satisfy the requirements of 49 CFR 26.11. Failure by Bomel to supply the information mandated by 49 CFR 26.11 within the time frame required by the City of San Bernardino renders its bid non-responsive. Bomel's failure to supply the annual gross receipts of subcontractors is a material deviation, in that it will compromise federal financial assistance for the City of San Bernardino. This failure is material in that it gave Bomel an unfair competitive advantage. Parkco found that several prospective subcontractors were reluctant to provide it with a bid because of the need for annual gross receipts information. In not requesting the information, or at least not including the information in its bid, there is a strong probability that Bomel has been able to draw from a larger pool than other bidders who were limited by the requirement that they provide annual gross receipts for subcontractors. For these reasons, the material defect in Bomel's Exhibit 12-G/Pt. I in failing to supply the gross receipts information is a material defect rendering the bid of Bomel non-responsive. The BOMEL Bid was Non-Responsive To the Request for Bids in Failing to Properly Initial Interlmeations and Alterations in the Bid Documents In addition, the bid of Bomel, Exhibit 12-G/Pt. I was non-responsive in that it contained interlineations and alterations prohibited by the bid documents. The bid documents, Section 2-1.11 (p. SP-15.), "Irregular Bids," provides, in pertinent part: "Unauthorized conditions, limitations, or provisions attached to a bid will render it irregular and may cause its rejection. The completed bid forms shall be without interlineations, alterations, or erasures." Bomel cavalierly ignored this admonishment. Bomel's bid, Exhibit 12-G/Pt. I, states at the bottom of every page the caveat: "The circled sub is the listed Subcontractor." Further, several subcontractors names and phone number and type of work are circled. There is no initial on either the typed caveat or the circled name to indicate that this is an intended change to the bid documents. Initials appear where a name has been crossed out. Curiously, the initials are "MB," which are not the initials of any of any of the principles of the corporation. Rachel Clark, City Clerk Page No. 4 December 28, 2009 On the page for bidders to initial acknowledgement of addendums, the initials are JCU for James C. Ure, Executive Vice President. The President is Kent Matranga and Lisa McGinnis is the Secretary/Treasurer. Indeed, every place in the bid documents where a signature is required to bind the corporation, James C. Ure has signed. The minutes of the Special Meeting of the Directors, included with the bid documents of Bomel, designate only James C. Ure as authorized to sign and execute written documents on behalf of the corporation. Since the "completed bid forms shall be without interlineations, alterations, or erasures," and the initials of MB are alterations of the bid document, these are alterations that render the bid irregular and non-responsive because they are an attempt to bind the corporation to changes in the bid documents. Since MB does not appear to have this authority based upon the other documentation submitted by Bomel, Bomel obtained an unfair competitive advantage. It is in the unique position of being able to withdraw its bid without forfeit of bid bond, because it can claim MB had no authority to make the alterations or Bomel is unaware of how the alterations were made if they were not initialed. (Public Contract Code § 5103; Ghilotti Construction Company v. City of Richmond (1996) 45 CA4th 897.) Thus, the caveat at the bottom of the Exhibit 12-G/Pt. I pages and the circling of subcontractor's names, without, at a minimum, having been initialed by James C. Ure, are alterations of the bid documents that render the bid irregular and non-responsive. Moreover, these alterations give Bomel an additional unfair competitive advantage. Though "B" contractors license is required for the Project (Notice Inviting Bids, p. A-2), Bomel also has an "A" license. The "B" license requires the use of at least two subcontractors by the prime contractor in the performance of the Project. California Business & Professions Code §7057(b) requires that a contractor with a "B" license must subcontract with two unrelated trades or crafts other than framing or carpentry.) An "A" license has no such restrictions. Bomel can claim that, since the circled subcontractors were not initialed by James C. Ure, and, since the caveat was not initialed either, it did not intend to utilize the circled subcontractors and can then shop for more competitive pricing for subcontractors or perform the work with its own forces. This is exactly the situation that the listing law was intended to avoid. When a contractor does not list subcontractors for any portion of the work, it must perform that work with its own forces. (Public Contract Code §4106) Here Bomel has created sufficient uncertainty about its listing of subcontractors that it is in the position of denying having listed any subcontractors, without penalty attached, should it substitute another subcontractor, during the course of the project. (Public Contract Code §4111.) Indeed, two of the circled subcontractors do not appear to have a license as shown on the web site for the California State Contractor's License Board: Harris Rebar and Frank Smith Masonry. Such flexibility to pick and choose Rachel Clark, City Clerk Page No. 5 December 28, 2009 subcontractors and whether or not to subcontract, gives Bomel an unfair competitive advantage. It is the ability to shop prices after bid opening. It is because of this unfair competitive advantage that the defect is material and the bid of Bomel non- responsive. Public Policies Involved The competitive bidding process is deliberately made to be prophylactic. No proof of actual corruption or adverse effect upon the bidding process is required. Only a potential for abuse needs to appear. As Domar Electric, Inc. v. City of Los Angeles (1994) 9 C4th 161, 173-76, 36 CR2d 521, 885 P2d 934, explains: [T]he purposes of competitive bidding . . . are 'to guard against favoritism, improvidence, extravagance, fraud and corruption; to prevent the waste of public funds; and to obtain the best economic result for the public' [citations] and to stimulate advantageous market place competition [citation]. [T]he general rule [is] that bidding requirements must be strictly adhered to in order to avoid the potential for abuse in the competitive bidding process. (Konica Business Machines U.S.A. v. Regents of University of California (1988) 206 CA3d 449, 456, 253 CR 591 [strict adherence with bidding requirements is applied "[even where] it is certain there was in fact no corruption or adverse effect upon the bidding process, and even where deviations would save the [public) entity money"].) [Emphasis added.] See also Pub. Cont. Code § 100 and Miller v. McKinnon (1942) 20 C2d 83, 88, 124 P2d 34, where a taxpayer was permitted to challenge the award of a public works contract that appeared to violate the competitive bidding requirements, and the court noted: The competitive bidding requirement is founded upon a salutary public policy declared by the legislature to protect the taxpayers from fraud, corruption, and carelessness on the part of public officials and the waste and dissipation of public funds. The Option to Reject All Bids Your attorney may inform you that you have the right to reject all bids and to readvertise this project again at a later date. That step should only be taken when Rachel Clark, City Clerk Page No. 6 December 28, 2009 cogent and compelling reasons force you into it. As was explained over 60 years ago, in Massman Construction Co. v. U.S. (1945) 102 Ct.CI. 699, 718, 60 F.Supp. 635, cert. den. 325 U.S. 866, 89 L.Ed 1985, 65 S.Ct 1403: "To have a set of bids discarded after they are opened and each bidder has learned his competitor's price is a serious matter, and it should not be permitted except for cogent reasons." Conclusion For the foregoing reasons, the bid of Bomel should be determined to be non- responsive and the award of the contract for the Project should be made to Parkco. If you need any further information, please contact me. Very truly yours, . Marcia Haber Kamine cc: Adrian Hoyle Charles McNeely, City Manager (6th Fl.) Robert Eisenbeisz, City Engineer (3rd Fl.) 1 t6'POST. ",`po N, 7 ✓y' PITNEY 00WE5 02 iP $ 000.170 0003945117 DEC 29 2009 • MAILED FROM ZIP CODE 90014 �N 7<L✓ J YW =LL] L, LL. r j' N H p O M 14 W b 00 M N O N U +G N rn — O N N N U N i0 N U M F+ y d W O G q M w G = b u O O 0) i W z W n N O G P4 Urn fA 1 t r �p�INl�d`�d0'1��34 ca.JIAUU�J3S 343p1NS d�µ17 kNI U IL J W 6 j Na J U W i i r TRACHTMAN & TRACHTMAN r A T T O R N E Y S A T L A W i BENJAMIN R.TRACHTMAN MARC A.TRACHTMAN 27401 LOS ALTOS,SUM 300 I KEVIN L.HENDERSON MISSION VIEJO,CA 92691 RYAN M.CRAIG TELEPHONE(949)282-0100 VICTORIA F.CORRADO FACSIMILE(949)282.0111 MATHEW).VANDE WYDEVEN January 19, 2010 w ,tmchtmanlawxmn KELLI A.TRACHTMAN JEFFERY M.SUCKIEL SERENA L.NERVEZ BRIAN C.ELLIS BRYAN M.ZUETEL Via Hand Delivery Robert G. Eisenbeisz, P.E. CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT Public Works/Engineering 300 North "D" Street San Bernardino, CA 92418-0001 Re: San Bernardino Metrolink Parking Structure Bid, G604-19, CML 5033 (039) EA#08-924883L Bid Protest of H B Parkco Construction, Inc. Our Client: Bomel Construction Co Company Inc. Dear Mr. Eisenbeisz: As you are aware, our office represents BOMEL CONSTRUCTION COMPANY INC. ("BOMEL") in connection with a Bid Protest filed on behalf of H B PARKCO CONSTRUCTION, INC. ("H B PARKCO") with regard to the above-referenced Project. On January 11, 2010, we received a January 7, 2010 letter from Mr. Eisenbeisz which enclosed a copy of H B PARKCO's December 29, 2009, written Bid Protest. The purpose of this position statement is to respond to H B PARKCO's Bid Protest. In this regard, we provide you with the legal authority and analysis to demonstrate that there is no legitimate basis to reject BOMEL's bid because BOMEL is the lowest responsive and responsible bidder. We are informed that of the five (5) other bidders, only H B PARKCO, an entity who arguably has no legitimate standing to bid the project in the first place (see below), was the sole entity filing a Protest. Notwithstanding that H B PARKCO arguably has no standing to bid this project, its bid was non-responsive. Moreover, the purported grounds for H B PARKCO's Protest are equally specious and illegitimate. H B PARKCO claims that BOMEL's bid was unresponsive because (1) BOMEL failed to provide the annual gross revenues for all of its subcontractors at bid time; and (2) BOMEL improperly altered its subcontractor listing form and failed to properly initial interlineations and alterations in its subcontractor listing form. Neither of H B PARKCO's bases comes close to establishing that BOMEL materially deviated from the bid specifications nor gained an unfair competitive advantage in any way, shape or form. Rather, when viewed in their most i 1� Robert G. Eisenbeisz, P.E. 4 Re: San Bernardino Metrolink Parking Structure Bid, GB04-19, CML 5033 (039) January 19, 2010 Page 2 of 9 cynical/skeptical/conservative light, the items complained of constitute nothing more than irregularities, if the City considers them to be such, that were inconsequential or immaterial such that they should be waived by the City, within its express discretion to do so. Here, as the apparent low bidder, BOMEL's bid was $4,167,526.00. H B PARKCO was the second low bidder at $4,509,342.41. BOMEL's bid was a whopping $341,816.41 lower (or 8%) than H B PARKCO's bid. Because BOMEL is easily the lowest responsible and responsive bidder, it is clearly in the best interest of the City and public to award the contract to BOMEL. We urge the City to take a practical approach to evaluating bids by rejecting H B PARKCO's Bid Protest and moving forward with the contract award to BOMEL for the reasons set forth below. I. UNDER COMPETITIVE BIDDING LAWS, THE CITY MUST AWARD THE CONTRACT TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. Under California's public contracting laws, if the City awards the contract at all, it is required to award the contract to the lowest responsible bidder. (See Public Contract Code Section 20128; and Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority(2000) 23 CalAth 305.) A responsive bid is one that conforms to the material terms of the bid package. Menefee v. County of Fresno (1985) 163 Cal.App.3d 1175. A responsible bidder is one who has the quality, fitness and capacity to perform the contract. West v. City of Oakland (1916) 30 Cal.App.566. As set forth below, BOMEL's bid fully complies with the material terms of the bidding requirements. H B PARKCO's Bid Protest does not question BOMEL's responsibility. II. THE CITY HAS THE POWER TO WAIVE NON-MATERIAL OR INCONSEQUENTIAL IRREGULARITIES/DEVIATIONS. A bid is "responsive", if it promises to do what the bidding instructions demand. Responsiveness can be determined from the face of the bid. Taylor Bus Services, Inc. v. San Diego Board of Education (1987) 195 Cal.App.3d 1331, 1341-42. In fact, within the City's "NOTICE INVITING SEALED BIDS" and the "SPECIAL PROVISIONS, INSTRUCTIONS TO BIDDERS," the City of San Bernardino specifically reserved the right to waive any informalities or inconsequential deviations from the contract specifications. In the "NOTICE INVITING SEALED BIDS," page A-4, 71, it states the following: The City San Bernardino reserves the right to waive any informalities or inconsequential deviations from contract specifications, or to reject any and all bids. Similarly, in the "SPECIAL PROVISIONS, INSTRUCTIONS TO BIDDERS," Section 3- 1.04 "Award of Contract" it states as follows: Following a review of the bids, the CITY shall determine whether to award the contract or to reject all bids. The award of contract, if made, will be to the lowest responsible bidder as determined solely by the CITY. Additionally, the CITY reserves the right to reject any and all bids, to accept any bid or portion thereof, to I Robert G. Eisenbeisz, P.E. Re: San Bernardino Metrolink Parking Structure Bid GB04-19, CML 5033 (039) January 19, 2010 Page 3 of 9 waive any irregularity and to take the bids under advisement for the period of time stated in the legal notice inviting sealed bids as may be required to provide for the best interest of the CITY. Public entities may waive inconsequential deviations from contract specifications. To be considered "inconsequential", the deviation must neither give the bidder an unfair competitive advantage nor otherwise defeat goals of ensuring economy and preventing corruption in the public contracting process. Ghilotti Construction Company v. City of Richmond (1996) 45 Cal.App.4th 897, review denied. III. IF ANYTHING, BOMEL'S BID WAS COMPLETELY RESPONSIVE; AT WORST, IT CONTAINED INCONSEQUENTIAL, WAIVEABLE IRREGULARITIES. H B PARKCO's Bid Protest does not demonstrate that BOMEL's bid materially deviated from the bid requirements. Rather, in every single material aspect, BOMEL's bid was completely responsive to the plans and specifications. A. FAILING TO LIST ALL OF THE SUBCONTRACTORS' TOTAL ANNUAL ! REVENUES AT BID TIME IS A MODEST IRREGULARITY AND WAS NOT A CONDITION PRECEDENT TO BOMEL'S BID BEING RESPONSIVE. H B PARKCO erroneously claims that BOMEL's failure to list the annual revenues (at bid time) renders BOMEL's bid unresponsive because it jeopardizes the City's ability to obtain Federal funding for this particular job pursuant to Title 49, Section 26.11 of the Code of Federal Regulations (49 CFR 26.11). Interestingly, when you review the text of 49 CFR 26.11, there is nothing in that regulation which states that a bid must be rejected if it does not contain the annual gross revenues of all subcontractors at the time the bid is submitted. Instead, 49 CFR 26.11(c)(3) states, in pertinent, part as follows: You may acquire the information for your bidders list in a variety of ways. For example you can collect the data from all bidders, before or after the bid due date. You can conduct a survey that will result in a statistically sound estimate of the universe of DBE and non-DBE contractors and subcontractors who seek to work on your Federally-assisted contracts. You may combine different data collection approaches (e.g., collect name and address information from all bidders, while conducting a survey with respect to age and gross receipts information). (Emphasis added]. Additionally, H B PARKCO cites to the City's clarification in Addenda No. 3, item number 30, as a basis to reject BOMEL's bid. Specifically, in item number 30, the City provided the following clarification: Regarding form exhibit 12-G, the bidder shall complete all portions of the form except the far right column identified as "Local Agency Use only (certified DBE?)." Failure to return all documents in the bid package fully completed and executed, i Robert G. Eisenbeisz, P.E. Re: San Bernardino Metrolink Parking Structure Bid, G1304-19, CML 5033 (039) January 19, 2010 Page 4 of 9 where applicable, may result in the bid being declared non- responsive. Here, H B PARKCO misconstrues the City's clarification in item number 30. In this regard, the City merely reserved its rights, within its sole discretion, to find a bid non-responsive if it was so deficiently filled out that it prejudiced the City. This clause did not say that a failure to include the annual revenues (at bid time) shall cause the bid to be declared non-responsive. Rather, it said "may." Here, it is within the sound discretion of the City to determine whether, at bid time, BOMEL's failure to list the annual revenues of all of the subject subcontractors constituted a material deviation. Here, BOMEL actually provided such revenues for Raymond Interiors and Harris Rebar. (See Exhibit 1). Further, BOMEL can easily cure this modest, inconsequential irregularity by accumulating this information immediately and providing it to the City in time to comply with its reporting requirements. BOMEL anticipates that it will have this information to the City well in advance of the contract award or at any specific date required by the City. (See accompanying Declaration of James C. Ure, pgs. 3-4, 17). BOMEL also strongly disputes gaining any unfair competitive advantage by not providing all of the annual gross revenue information at bid time. There is not one scintilla of evidence to support H B PARKCO's claim j that BOMEL gained any unfair competitive advantage by failing to provide all of the subcontractors' gross annual revenues at bid time. j I According to the Court in Ghilotti, the purpose of competitive bidding statutes is to: "Eliminate favoritism, fraud and corruption; avoid misuse of public funds; and stimulate advantageous marketplace competition." Ghilotti (1996) 45 Cal.App.4th at 907. Furthermore, such statutes are enacted to protect the public interest by securing the best work at the lowest practicable prices. Domar Electric, Inc. v. City of Los Angeles(1994)9 Cal.4th 161. The Ghilotti Court pointed out: A basic rule of competitive bidding is that bids must conform to specifications, and that if a bid does not so conform, it may not be accepted. However it is further well established that a bid which substantially conforms to a call for bids may, though it is not strictly responsive, be accepted if the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders, or in other words, if the variance is inconsequential (Quoting 47 Ops.Cal.Attorney.Gen. 129 (1966).) Ghilotti at p. 904-905. It is well settled that contracting entities may waive inconsequential deviations from bid specifications. Ghilotti at p. 908. Applying the Ghilotti factors to our case conspicuously reveals that BOMEL's failure to provide all of the annual gross revenue information is inconsequential. First, BOMEL's failure to provide all of the gross revenue information could not and actually did not affect the amount of its bid. Second, there is no evidence whatsoever to support any claim that BOMEL was given an unfair competitive advantage. A competitive advantage exists where a deviation from bid i Robert G Eisenbeisz, P.E. Re: San Bernardino Metrolink Parking Structure Bid, GB04-19, CIVIL 5033 (039) January 19, 2010 Page 5 of 9 specifications provides the bidder with a lower bid than would have been provided if not for such deviation. See Konica Business Machines USA, Inc. v. The Regents of the University of California (1988) 206 Cal.App.3d 449. There is simply no fathomable linkage between BOMEL's inadvertent failure to provide all of the annual gross revenues (at bid time) and it gaining an unfair competitive advantage. B. BOMEL'S BID WAS COMPLETELY RESPONSIVE NOTWITHSTANDING THE INCONSEQUENTIAL INTERLINEATIONS CONTAINED IN BOMEL'S SUBCONTRACTOR LISTING FORM In somewhat of a desperate and hypocritical argument, which is filled with inaccuracies j and flawed logic, H B PARKCO claims that BOMEL's bid was non-responsive based on interlineations and references of BOMEL's bid forms. As will be demonstrated below, at best, these recitations are again inconsequential deviations that should be waived by the City as they do not give BOMEL an unfair competitive advantage. Further, it is clearly in the best interest of the City to waive them. It is undisputed that BOMEL's "Bidders' List' of Ssubcontractors (DBE and non-DBE) — Part I (Exhibit 12-G) arguably contained interlineations and alterations that would not strictly comply with Section 2-1.11 of the bid documents. However, Section 2-1.11 also unambiguously states"unauthorized conditions, limitations, or provisions attached to a bid will render it irregular and may cause its rejection." Again, the issue is whether a failure to strictly adhere to this particular provision constitutes a material deviation thus rendering BOMEL's bid unresponsive? BOMEL's position is that its subcontractors' list form contains inconsequential irregularities that do not come close to rendering its bid unresponsive. Accordingly, the City, in its discretion, can waive them. Here, BOMEL's bid was very clear and unambiguous in terms of both its price and its compliance with the "Subletting and Subcontracting Fair Practices Act" (Public Contract Code Section 4100 et seq.). Specifically, a review of BOMEL's "Bid Schedule' which contains BOMEL's total bid price of $4,167,526.00 and all of the sub-totaled unit prices, is clear, unambiguous and exact. Further, H B PARKCO has presented no evidence whatsoever that BOMEL failed to comply with any applicable Listing Law. In fact, BOMEL clearly and unambiguously listed every subcontractor who was performing more than one half of one percent of the work encompassed by BOMEL's total bid price. (See accompanying Declaration of James C. Ure, p. 6, 112). In addition to the foregoing, BOMEL's bid was signed by James C. Ure, an authorized officer of the corporation who has the specific authority to bind the corporation. Moreover, BOMEL's bid was secured by a bid bond. There is no dispute that the entire scope of the work has been included within BOMEL's bid. BOMEL does not claim to have made any mistakes in its bid. (See accompanying Declaration of James C. Ure, p. 5, 111). Finally, as testament to its compliance with the applicable Listing Laws, BOMEL intends to subcontract with each and every one of the conspicuously-identified subcontractors that it listed in its bid forms. (See accompanying Declaration of James C. Ure, p. 5, 111). By way of background, BOMEL submitted the same subcontractor listing language for this Project that BOMEL has submitted on every other similar public project that BOMEL has bid i Robert G. Eisenbeisz, P.E. r Re: San Bernardino Metrolink Parking Structure Bid GB04-19, CML 5033 (039) It January 19, 2010 l Page 6 of 9 in the last 20 years. There has not been one single occasion where a public entity (Federal, State, County, City, Municipality or any other such public entity) has ever objected to BOMEL's use of this language. Moreover, BOMEL has never had a competitor ever challenge the use of this particular language. (See accompanying Declaration of James C. Ure, p. 4, 18). H B PARKCO complains that BOMEL's language at the bottom stating that the "circled sub is the listed subcontractor" is somehow a material deviation from the bid specifications. Similarly, H B PARKCO claims that the corresponding circles identifying the listed subcontractors and the associated interlineations to make sure that they were accurate are also I material deviations. H B PARKCO unmeritoriously argues that BOMEL's process would allow BOMEL to claim a mistake in its bid that BOMEL could use to withdraw its bid without forfeiting its bid security. This is unfathomable. By way of background, on Bid Day, Mr. Ure and several other officers of BOMEL actively participated and supervised BOMEL's "bid room" within BOMEL's Anaheim Hills-based office. In this particular case, Mr. Ure was processing the flood of information being received by numerous bidders throughout the day and into the final two to three hours before the bids needed to be submitted in a sealed envelope at the City's offices. Consistent with BOMEL's 20- year custom and practice, Mr. Ure had two BOMEL employees stationed at the City's offices. As Mr. Ure gathered and analyzed the bids coming in from all of BOMEL's subcontractors, Mr. Ure personally selected each and every subcontractor to be listed and Mr. Ure identified each price associated with BOMEL's bid. On Bid Day for the Project, Mr. Ure had Michael Buresh stationed at the City's offices. Mr. Buresh's responsibility was to identify, on BOMEL's bid form, the listed subcontractors (by circling them)that Mr. Ure instructed him that BOMEL was listing. With regard to BOMEL's subcontractor listing form, for each trade, BOMEL provides a listing of the identity, location and description of all work to be performed for each and every potential bidder that BOMEL might list. Thereafter, as the bids come in during Bid Day, and after BOMEL analyzes them in the bid room, Mr. Ure calls Mr. Buresh and instructs him as to who BOMEL is going to list. In response, Mr. Buresh circles the subcontractor that Mr. Ure decides to list. Sometimes, at the very tail end of the bid process, once BOMEL thinks BOMEL has listed a particular subcontractor for a particular trade (by circling said subcontractor), another subcontractor will come in just before the deadline and provide BOMEL with a better bid. Accordingly, when that occurs, Mr. Ure will instruct Mr. Buresh to cross out the listed/circled subcontractor and either write in the name, location and work to be performed of the subcontractor that BOMEL desires to list and/or then circle the name of said desired/listed subcontractor. With regard to this process, in order to make sure that someone affiliated by BOMEL is making such a change, or any alteration on the subcontractor bid form itself, Mr. Ure has Mr. Buresh put his initials next to the change so that it is clear that it was a BOMEL employee making the change as opposed to an unauthorized third party. [See Exhibit 21. Either way, Mr. Ure is the one listing the subcontractor and determining the pricing components. In the end, this process is very adequately designed to clearly and unambiguously communicate BOMEL's intentions with regard to its bid so that no mistakes can be made. (See accompanying Declaration of James C. Ure, p. 4-5, 110). I i Robert G. Eisenbeisz, P.E. Re: San Bernardino Metrolink Parking Structure Bid G1304-19, CML 5033 (039) January 19, 2010 Page 7 of 9 In Menefee v. County of Fresno (1985) 163 Cal.App.3d 1175, a bidder failed to sign its bid in the appropriate place. In addressing whether the lack of a signature on the bid gave the bidder an unfair advantage, the Court noted that the County regulations controlling the bidding process did not specifically require a signature. Moreover, the Court indicated that waiver should not be allowed if the irregularity would give the bidder an unfair advantage by allowing him to withdraw his bid without forfeiting his bid bond. The Court found that a lack of a signature was not a ground for withdrawal under Public Contract Code Section 5103, therefore the bidder did not have an unfair advantage and the County could waive the signature requirement. The Court also found that the contractor's bid was binding on it because there were other signatures by its principals in other locations in the bid documents. Analogizing to Statute of Frauds Cases, Court reasoned that it did not matter where the bid was signed so long as it had been signed by the appropriate parties. Id. at 1181. As the Court stated in Menefee, "under the statutes for relief of bidders on public contracts, the only mistake which could release [the low bidder] from its bid are typographical or arithmetic errors." (Emphasis added). Id. at 1181. Here, nothing in BOMEL's bid could be possibly construed to be a "mistake" whereby BOMEL would attempt to withdraw its bid without forfeiting its bid security. There are no typographical or arithmetic errors contained in BOMEL's bid. In fact, BOMEL stands behind its bid and will perform the project at the $4,167,526.00 that BOMEL bid. Additionally, BOMEL fully intends on subcontracting with each and every one of its listed/circled subcontractors on its subcontractor listing form. As a result of the foregoing, there is no legitimate basis to H B PARKCO's concerns that BOMEL is somehow attaining an unfair competitive advantage. Along the same lines, BOMEL does not understand H B PARKCO's class "B" versus class "A" license argument. The clear and unambiguous bid submitted by BOMEL establishes that BOMEL is acting under its "B" license and that it listed each and every subcontractor that will perform work that is one half of one percent of the total contract value. (Public Contract Code Section 4104). Each one of the listed subcontractors, per the plain language in BOMEL's subcontractor listing form, has a circle around it such that the listing subcontractor cannot possibly be confused with any of the unsuccessful subcontractor bidders. BOMEL is flabbergasted the H B PARKCO claims that BOMEL's bid could possibly be interpreted as one that failed to identify its listed subcontractors. Finally, all of BOMEL's listed (circled) subcontractors are licensed in California. In further support of its position that BOMEL failed to properly list its subcontractors, H B PARKCO claimed that two of BOMEL's subcontractors (Harris Reber and Frank Smith Masonry) "do not appear" to have a license. BOMEL is perplexed as to why H B PARKCO would make such a claim given that it also listed Harris Rebar as the rebar and PT subcontractor (see Exhibit "3"). Notwithstanding same, H B PARKCO's claim regarding the licensure (for both Harris Reber and Frank Smith Masonry) is patently untrue. A five minute search on the CSLB website refutes H B PARKCO's baseless claims. Specifically, attached as Exhibit "4" are copies of the CSLB License Reports for both of these subcontractors which establish that they are both properly licensed for the work that they have bid. Robert G. Eisenbeisz, P.E. if Re: San Bernardino Metrolink Parking Structure Bid GB04-19, CML 5033 (039) January 19, 2010 Page 8of9 IV. H B PARKCO ARGUABLY HAS NO STANDING TO BID THIS PROJECT AS IT IS NOT A RESPONSIBLE BIDDER; FURTHER ITS BID IS NON-RESPONSIVE. H B PARKCO has no standing to even bid this jab let alone file a Protest because it has not demonstrated that it is responsible. As stated above, a responsible bidder is one who has the quality, fitness and capacity to perform the contract. West v. City of Oakland (1916) 30 Cal.App.566. Here, in the bid documents, the City clearly articulated several requirements that prospective bidders had to establish in order to be pre-qualified to bid the Project. There is no doubt that the City is looking for a "prime contractor' to be considered for award of this Project. In fact, in Addendum No. 1, p. 2, item 4, the City specifically provided additional qualifications of the "prime contractor"to those listed on Reference Form "R-1." Here, the City's Reference Form "R-1" also appears to specifically require that the prospective bidder work as a "prime contractor' and complete at least three parking structures in the last five years for a "public agency". When examining H B PARKCO's Reference Form "R-1", it appears very obvious that H B PARKCO did not list a single public entity where it has completed the work spelled out in the pre-qualification process. Specifically, both Charles Drew University and Biola University are not public schools; rather, they are private colleges. Secondly, Mt. San Antonio Gardens is a non-profit life care senior community center that also appears to be a private work. Moreover, with regard to Mt. San Antonio Gardens, from H B PARKCO's Reference Form "R-1", it appears that H B PARKCO worked as a subcontractor to SC Builders for that particular project. (See Exhibit "Y). While item number 4 on Addenda No. 1 provides several criteria for H B PARKCO to meet, in addition to the foregoing qualifications, none of the projects listed on H B PARKCO's Reference Form "R-1" rose to the level of $8,000,000.00 or more. Rather, whether as a prime contractor or a subcontractor, all three private works projects were $6,000,000.00 or less. (See Exhibit 05"). In addition to potentially failing to meet the City's pre-qualification requirements, there are several potential material deviations to H B PARKCO's bid. First, when reviewing its compliance with the Listing Laws, H B PARKCO failed to list subcontractors for the miscellaneous iron and masonry scopes of work. BOMEL believes that each of these scopes constitutes more than one half of one percent of H B PARKCO's total bid price; accordingly, H B PARKCO's failure to list these trades would violate the "Subletting and Subcontracting Fair Practices Act" (Public Contract Code Section 4100 et seq.) Additionally, within its subcontractors' listing form, H B PARKCO also failed to provide the scope of work to be performed by listed (and allegedly unlicensed subcontractor) Harris Reber. Additionally, in another confusing aspect of H B PARKCO's bid, H B PARKCO submitted a "Bidders List of Subcontractors (DBE and non-DBE)" — Part II which provided the City with a "list of all subcontractors who provided a quote or bid but were not selected to participate as a subcontractor on this project." Interestingly, when comparing H B PARKCO's Part I (listed subcontractors form) with its unselected subcontractors form (Part II), it effectively de-listed each and every subcontractor that they had originally listed. Specifically, every single subcontractor that is identified in H B PARKCO's "Part I" subcontractor listing form is also Robert G. Eisenbeisz, P.E. Re'. San Bernardino Metrolink Parking Structure Bid GB04-19, CML 5033 (039) January 19, 2010 Page 9 of 9 i identified in H B PARKCO's "Part II" listing form. Is H B PARKCO intending to self perform all of the work?? Finally, in a "pot calling the kettle black" scenario, H B PARKCO also failed to comply with Section 2-1.11 of the bid documents because its bid documents contain interlineations that do not appear to be those of authorized contracting personnel identified in H B PARKCO's bid form. In H B PARKCO's "Bidder's information and signature" page, it identifies Adrian Hoyle i and Brett Behrns as officers of the company. However, on pgs. B-3 and B-6 of H B PARKCO's "Bid Schedule", the initials of"MCB" appear next to interlineations regarding pricing components of H B PARKCO's bid. Who is "MCB"? (See Exhibit"6"). V. THE PUBLIC INTEREST WILL NOT BE SERVED BY REJECTING ALL BIDS AND RE-BIDDING. BOMEL is a responsible bidder who submitted the lowest responsive bid for the work. There are no material deviations in BOMEL's bid that could support rejection of its bid. H B j PARKCO's contrived argument to reject BOMEL's bid is not supported by a plain reading of the specifications, the law or the documentary evidence offered by H B PARKCO. As discussed above, BOMEL's bid was over $340,000.00 less than H B PARKCO's second low bid though H B PARKCO may not be a responsible nor a responsive bidder. As a result, awarding the contract to anyone other than BOMEL is a result that is clearly not in the best interest of the public. Moreover, if the City rejected all bids and re-bid the Project, it is likely that the pool of bidders will be reduced, the pricing may increase and the City may be faced with other bid irregularities, including material irregularities that cannot be waived. In short, re-bidding would only serve to delay and increase the cost of the project. V1. CONCLUSION. Based on the foregoing, BOMEL respectfully submits that H B PARKCO's Protest be rejected and that the City award the project to BOMEL CONSTRUCTION COMPANY INC., the lowest responsible and responsive bidder. Very truly yours, TRACH MA CHTMAN 7 Benjamin R. Trachtman BRT:Ih cc: Henry Empefio, Jr., Esq., Senior Deputy City Attorney (Via E-Mail& Hand Delivery) Mr. James C. Ure (Via E-Mail) I tL I 1 Benjamin R Trachtman,Esq.ISBN 1374581 TRACHTMAN&TRACHTMAN 2 27401 Los Altos,Suite 300 Mission Viejo,CA 92691 3 Telephone: (949)282-0100 Facsimile: (949)282-0111 4 Attorneys for BOMEL CONSTRUCTION COMPANY INC. I 5 6 7 8 ) i In Re: ) DECLARATION OF JAMES C. URE IN 9 ) SUPPORT OF BOMEL CONSTRUCTION 10 BID PROTEST BY H B PARKCO ) COMPANY INC.'S REPLY TO H B CONSTRUCTION, INC.: CITY OF ) PARKCO CONSTRUCTION, INC.'S 11 SAN BERNARDINO METROLINK ) DECEMBER 29, 2009 BID PROTEST PARKING STRUCTURE GB 04-19, ) (Filed Concurrently with Reply Brief) 12 FEDERAL PROJECT NO. CML- ) 5033(039), EA#08-924883L ) 13 ) To: Mr. Robert Eisenbeisz, P.E., City J( Engineer 14 City of San Bernardino Development Services 15 ) Department 300 N. "D" 16 ) San Bernardino, CA 92418-001 17 18 I, James C. Ure, declare as follows: 19 1. 1 am the Executive Vice-President of BOMEL CONSTRUCTIO 20 COMPANY INC. ("BOMEL") who directly supervised the preparation of the bid for th 21 City of San Bernardino Metrolink Parking Structure (GB 04-19, Federal Project No 22 CML-5033(039), EA #08-924883L) (hereinafter "the Project"). I am the authorized 23 signer of the project bid submitted to the City of San Bernardino. My duties include 24 running the bid room on Bid Day and finalizing pricing and subcontractors to be listed. 25 personally reviewed the Project's plans and specifications and addenda and 26 determined our interpretation of them. 27 2. 1 make this Declaration in support of BOMEL's Reply to H B PARKCO 28 CONSTRUCTION, INC.'s ("H B PARKCO") Bid Protest regarding the Project. I have -I- DECLARATION OF JAMES C. URE I personal knowledge of the matters set forth below. If called upon as a witness, I coul 2 and would testify competently thereto. 3 3. 1 have worked for BOMEL for the last 30 years and I have been an office 4 of the corporation since 1989. 1 have held positions within the corporation from Fiel 5 Superintendent, Project Manager, Estimator, VP Estimating, Corporate Secretary, an 6 now Executive Vice President. I am authorized by the corporation to sign contracts, 7 bonds, releases, bids and otherwise represent the corporation. 8 4. 1 have been intimately involved with regard to the preparation of BOMEL' 9 bid for the Project. Specifically, among other things, I reviewed the plans an 10 specifications during the bidding process. I have personally communicated with th i 11 City's Representative Mike Grubbs during the post-bid period to request copies of th 12 bids, etc. 13 5. On December 15, 2009, which is also known as Bid Day I, on behalf o 14 BOMEL authorized and submitted to the City of San Bernardino a sealed bid to perfo 15 the Project for $4,167,526.00. 1 was the individual who personally signed BOMEL's bi 16 on behalf of BOMEL and initialed acknowledgment of the all of the Addenda. O 17 December 15, 2009, 1 learned that the City opened the bids for the Project. I soo 18 learned that BOMEL was the "apparent low bidder" as our bid came in substantially les 19 than the second low bidder. Specifically, H B PARKCO was the second low bidder wit 20 a bid of $4,509,342.41. In other words, BOMEL's bid was $341,816.41 lower (or ove 21 8%) than H B PARKCO's. 22 6. Earlier this month, I received a copy of H B PARKCO's December 29, 23 2009, Bid Protest. I have reviewed and analyzed H B PARKCO's Bid Protest and wa 24 very surprised to learn of the specious bases for same. Through the following 25 paragraphs below, I provide some of the material factual particulars that I believ 26 invalidate H B PARKCO's Protest. 27 7. In its first claim that BOMEL's bid was unresponsive, H B PARKCO claim 28 that our bid should be rejected because we failed to list all of the annual gross receipt -2- DECLARATION OF JAMES C. LIRE I I for all of the subcontractors that we identified in our"Bidder's list of subcontractors (DB 2 and non-DBE) — Part I (Exhibit 12-G)". With regard to this particular claim, it is ou 3 position that, at best, this is an inconsequential irregularity that did not provide BOME 4 with an unfair competitive advantage. As such, it should be waived. With regard to thi 5 information, it is undisputed that we did not include the annual gross receipts for som 6 of our listed subcontractors; rather, we did so for Harris Rebar and Raymond Interior 7 (metal studs, lath & plaster). [See Exhibit 11. With regard to this particular requirement, I 8 1 read addendum number three (3), which included item number 30 that stated that al 9 bidders were required to fill out all of the information on the subcontractor listing fo 10 except the information in the right-hand column. However, 1 never interpreted th 11 instructions in item number 30 to mean that our failure to provide the annual gros 12 receipts for each of our listed subcontractors, with our bid, was a condition precedent t I I 13 being awarded the job. In this regard, I never understood that by failing to include thi 14 information, at bid time, our bid would automatically be rejected. Rather, the Ci 15 specifically stated "failure to return all documents in the bid package fully completed and 16 executed, where applicable, may result in the bid being declared non-responsive." Wit 17 regard to this particular requirement, I understand that this is a Federally-assisted 18 project and that the Federal Government requires that the City provide statistical dat 19 concerning its disadvantaged business enterprise participation, including the annua 20 gross revenues for such contractors. However, I have also understood that the City di 21 not need to provide this information to the Federal Government on Bid Day; rather, thi 22 would be information that would typically be communicated after the Project was 23 awarded to the low bidder. In our case, as the apparent low bidder, we are quickly 24 assimilating the annual gross revenue information to give to the City. This will allow th 25 City plenty of time to comply with its reporting requirements so as not to jeopardize th 26 Federal assistance for this particular Project. We anticipate providing this data to th 27 City by no later than January 30, 2010, or at any specified date mandated by the City i 28 order to comply with its reporting requirements. I can state, with absolute certainty, tha -3- DECLARATION OF JAMES C. URE i I there was no effort whatsoever from BOMEL to conceal the annual gross receipts for 2 any of our listed subcontractors on Bid Day. I can also state, with absolute certainty, 3 that I cannot think of any possible unfair competitive advantage that we could possibly 4 obtain from failing to provide this information at bid time. 5 8. With regard to H B PARKCO's second basis of its Protest, I fail to see an 6 merit whatsoever to this position. With regard to BOMEL's "Bidder's list o 7 subcontractors (DBE and non-DBE) — Part I (Exhibit 12-G)", we submitted the sam 8 subcontractor listing language for this Project that we have submitted on every othe 9 similar Public project that we have bid in the last 20 years. There has not been on 10 single occasion where a public entity (Federal, State, County, City, Municipality or an 1 11 other such public entity) has ever objected to our use of this language. Moreover, w 12 have never had a competitor ever challenge the use of this particular language. 13 9. H B PARKCO complains that our language at the bottom stating that th I 14 "circled sub is the listed subcontractor' is somehow a material deviation from the bid 15 specifications. Similarly, H B Parkco claims that the corresponding circles identifying 16 the listed subcontractors and the associated interlineations to make sure that they wer 17 accurate are also material deviations. H B PARKCO unmeritoriously argues that ou 18 process would allow us to claim a mistake in our bid that we could use to withdraw our 19 bid without forfeiting our bid security. This is unfathomable. 20 10. By way of background, on Bid Day, I and several other officers of ou 21 company actively participate and supervise our "bid room" within our Anaheim Hills- 22 based office. In this particular case, I was processing the flood of information beingi 23 received by numerous bidders throughout the day and into the final two to three hour 24 before the bids needed to be submitted in a sealed envelope at the City's offices. 25 Consistent with our 20-year custom and practice, I had two BOMEL employee 26 stationed at the City's offices. As I gathered and analyzed the bids coming in from all o i 27 our subcontractors, I personally selected each and every subcontractor to be listed an 28 1 identified each price associated with our bid. On Bid Day for the Project, I had Michae -4 DECLARATION OF JAMES C. URE I i I I Buresh stationed at the City's offices. Mr. Buresh's responsibility was to identify, on ou 2 bid form, the listed subcontractors (by circling them) that I instructed him that we wer i 3 listing. With regard to our subcontractor listing form, for each trade, we provide a listin (1 4 of the identity, location and description of all work to be performed for each and eve 5 potential bidder that we might list. Thereafter, as the bids come in during Bid Day, an 6 after we analyze them in the bid room, I call Mr. Buresh and instruct him as to who w 7 are going to list. In response, Mr. Buresh circles the subcontractor that I decide to list. 8 Sometimes, at the very tail end of the bid process, once we think we have listed i 9 particular subcontractor for a particular trade (by circling said subcontractor), anothe 10 subcontractor will come in just before the deadline and provide us with a better bid. 11 Accordingly, when that occurs, I will instruct Mr. Buresh to cross out the listed/circle 12 subcontractor and either write in the name, location and work to be performed of t.h 13 subcontractor that we desire to list and/or then circle the name of said desired/liste 14 subcontractor. With regard to this process, in order to make sure that someon 15 affiliated by BOMEL is making such a change, or any alteration on the subcontractor bid 16 form itself, I have Mr. Buresh put his initials next to the change so that it is clear that i 17 was a BOMEL employee making the change as opposed to an unauthorized third party. 18 [See Exhibit 21. Either way, I am the one listing the subcontractor and determining th 19 pricing components. In the end, this process is very adequately designed to clearly an 20 unambiguously communicate BOMEL's intentions with regard to its bid so that no 21 mistakes can be made. 22 11. In this particular case, I can state with absolute certainty that BOMEL 23 stands behind its bid and will perform the project at the $4,167,526.00 price that we bid. 24 Further, we fully intend on subcontracting with each and every one of our listed/circle 25 subcontractors on our subcontracting listing form. There are no mistakes in our bid. 26 12. With regard to BOMEL's listing of subcontractors, we complied with th 27 "Subletting and Subcontracting Fair Practices Act' because we listed each and eve 28 subcontractor that is performing any work in an amount in excess of one half of on -5- DECLARATION OF JAMES C. URE i E I I percent of our bid. Accordingly, I am at a total loss as to how H B PARKCO coul 2 possibly claim that our "A" and "B" licensure in any way provides us with an unfai 3 competitive advantage. 4 13. Based on the foregoing, BOMEL is clearly the lowest responsible an 5 responsive bidder for the project. We truly hope that if the City finds any irregularitie 6 with our bid for the Project, the City will consider them to be inconsequentia 7 irregularities and waive them. BOMEL is the premier parking structure constructio 8 company in the Country, we are saving the City over $340,000.00 to complete thi 9 project; thus, it is clearly within the best interests of the City to award BOMEL th 10 contract and to reject H B PARKCO's Bid Protest. I stand willing, able and ready t 11 respond to any additional inquiries from the City. 12 1 declare under the penalty of perjury, under the State of California, that th 13 foregoing is true and correct. 14 EXECUTED this 19th day of January, 2010 at Anaheim Hills, California. 15 16 �' - �4 - URE, Declarant 17 18 19 20 21 22 23 24 25 26 27 28 -6- DECLARATION OF JAMES C. URE Exhibit " 1 " i L a � •a = _ i� � � � Y� r q g z jzo El V u � q N II ttt 00 ti � g a � f I i � i � •. fq ri w aGg_ 9 p A a r a x f o f to .9. c. E E µ /�� 1111 1. .p .J� o N _ _ y O �n vi u5 O .•+ M N u+ ,.n,• yy �I U 11 N H M H W H H M H N 7 N. N N V v Y V A N M N M •, V V V M1 v V A e� O U1 •y 'i. cu .9 A v (11 Ki rt � N O N VI � q o rn O d mw r N g N m rn 9 � a �fp..•� O ^eI r Z 0 M � � •� C Dl N H � � � .� d y4y IT SLY U• Y S. U Y C .Qd i 03 b b x b H y � a � ' I � I I I 1 I i � • 1j In' to in I mi w I� 1 � ai i i ; aI 1 , E I q� i °a 2S I CA i I m m I 1 u U1 IS I E a rn LI Y M p a i 13 [] .�"$$$ �' t� Y�I N N g M N N h N• M N N N Yl M m . v Ina w tt1 2 N Cr S�m V A j � LO m m 11� m 'n in � F A [V N E in .y Q Qwj 'j q 4 w C ca- " P 44 °i a q °` Q.S C H ; ii N ru .3 n m ,y a 3 W d U 1 4 m o U n• � v U c: i S IN p I tl Yy d d $ M L�u Q C, III Exhibit 112 " i s ' v a a I ' OM i 14 rd ro tl j ai U r {l7 N $ I W I 171 -ra a 02 � � t. ~ [A V Y V V A V V V Y A V Y v J n Y V V V A p' u m s( p en LwnI .pQp 0 {LI m 0 II1 ill 1l1 ��� 14 W w tl I :-7 q.c " 't7 'l OJ C r U a q •� C. U ym, .A � t� � � � Y �A p 'O m N m m d V n iZ ca Id In IA rI f N 8Ep r 'R �l w G° I�•a .5 � is � yyv 8A _i� � � ° j a r � �_— - � e '�" �,s`� � e�• •f� ,�K �0 tlf�l e� t^�i'� 2 ¢ —� O � Exhibit " 3 " a y ! f La a o ! V � CF at V M N N M V, V Y V A V �V V V A VV Y Y A is 0 la CA 9 ok D m `� a s.• a N d C 4 C w 73 b �F i i L i i i I i ' » Exhlbl" t GG 4 Check a License or Home Improvement Salesperson(HIS)Registration- Contractors Stat... Page I of 1 r. Department of Consumer Alf State Lich a 'Board Contractor's License Detail - License # 263226 ® DISCLAIMER:A license status check provides information taken from the CSLB license database.Before relying on this information,you should be aware of the following limitations. CSLB complaint disclosure is restricted bylaw WR 71245).if this entity is subject to public complaint disclosure,a link for complaint disclosure will appear below.Click on the Fink or button to obtain complaint and/or legal action Information. -+» PerBAP 071,.17.only construction related civil judgments reported to the CSLB are disclosed. Arbitrations are not listed unless the contractor fails to comply with the terms of the arbitration. p Due to workload,there may be relevant information that has not yet been entered onto the Boards license database. License Number. 263226 Extract Date: 01113/2010 FRANK S SMITH MASONRY INC Business Information: 2830 POMONA BLVD POMONA,CA 91768 Business Phone Number.(818)579-2135 Entity: _ Corporation Issue Date: _ _ 0528/1970 ---_-- Expire Date: _ 0513012011 _ L muse,Status: This kense is current and active.All Inforitation below should be reviewed. CUSS DESCRIPTION classifications: C29 1ASQNRY CONTRACTOR'S BOND TNs license filed Coraredoes Bond number 105161996 in the amount of$12,500 with the bonding company TRAVELERS sCASUASTY AND SU$(:IY_SQMPANY OF AMERICA. Effective Date:087302009 Bonding: COBIfa_Gr4fS-Li4nd_ng Hislory BOND OF QUALIFYING INDIVIDUAL 1. The Responsible Managing Officer(RMO)FRANK EDWARD SMITH certified that he/she owns 10 percent or more of the voting stock/equity of the corporation.A bond of qualifying individual is trot required. Effective,Date:0410511990 --- - This kenee has workers compensation insurance with the ZURICH AMER)CAN IN5LLRANCE l;_QIyAPANY Policy Number:373641705 Workers'Compensation: Effective Data:1 010112 0 0 9 Expire Date:10/012010 _ Workem'Comgminton HAtgtq Personnel fated on this license(current or disassociated)are Wed on other Iinanses. CondiljOn9 QfS13S I?LIY95y P4114X Copyright®2010 State of Calffomia https://www2.eslb.ca.gov/OrilineServices/CheckLicense/LicenseDetail.asp 1/13/2010 I Check a License or Home Improvement Salesperson(HIS)Registration-Contractors Stat... Page 1 of I I Department of Consumer Affairs 9NAA- Contractors State Li a oard Contractor's License Detail - License # 921179 ® DISCLAIMER:A license status check provides Information taken from the CSLB license database.Before retying on this Information,you should be aware of the following limitations. -»CSLB complaint disclosure is restricted by law(e_dP 7124_6).If this entity is subject to public complaint disclosure,a ank for complaint disclosure will appear below.Click on the link or button to obtain complaint andfor legal action information. -»Par B&P 7071.11,only construction related civil judgments reported to the CSLB are disclosed. A Arbitrations are not listed unless the contractor falls to comply With the terms of the arbitration. Due to workload,there may be relevant Information that has not yet been entered onto the Board's license database. License Number. 921179 Extract Date: 01/1312010 HARRIS REBAR SOUTHERN CALIFORNIA A DIVISION OF HARRISFARIZONA Business Information: P O BOX 6472 PHOENIX,AZ 85005 Business Phone Number:(602)254-0091 Entity: Corporation Issue Date: 0812212006 _ Ii Expire Date:— _ _-- 081312DID License Status: This license Is current and active.All Information below should be revievwed. CLASS DESCRIPTION Classifications: C50 $TEFL REINFORCING CONTRACTOR'S BOND This license filed Contractors Bond rnanber 82114111 in the amount of$12,500 with the boring company, FLDERAL INSURANCECOMPANY. Effective Date:06/182008 Bonding: BOND OF QUALIFYING INDIVIDUAL 1. This license filed Bond of Qualifying Individual number 82114112 for WILLIAM HAROLD DICKER in the amount of$12,500 with the bonding company E€DERAL WaURANQE-{�. j Effective Date:06/162008 _— -- This license has workers compensation insurance with the --� ARCH[jNSU[RANCELQMPAM'NAIL Policy Number.31WC14944103 Workers'Compensation: Effective Date:01/012010 Expire Date:011012011 I Wofrers Compensation HWory _ Personnel fisted on this license(current or diseeaodated)are listed on other Bcenses. I C1'g�ti0n9 Of U1't0 i Pjiy@(�[P IO ICV '. Copyright®2010 State of California htt ps://www2.cslb.ca.gov/OnlineServices/CheckLicense/LicenseDetail.asp 1/13/2010 Exhibit " 5 " i H13Parkco Construction,Ina BIDDER'S FIRM NAME REFERENCES FOR METROLINK PARKING STRUCTURE AT THE SANTA FE DEPOT PLANS &SPECIAL PROVISIONS NOS. 12591, 123289 M36,12337, 12327& 12348 Date December 15.2009 The following are the names,addresses,and phone numbers for three public agencies for which BIDDER has performed similar work within the past two years: Public Agency's Contract Name,Title Name&Address Type of Project Contract Amount Date Completed &Phone Number 1.Charles Drew University - - 108,584 af,3-level,Long- SSMM 12109 _ Sean Leonard 1731 E 120th Street Span,post-tension,368- President,SL Leonard Los Angeles,CA 90059 Stall Parking Structure 805-455-4668 - 1.Riola I7niversity 261,334 s[cast-yi-place, S 6MM 2/05 Ken Bascom - 13800 Biota Avenue ... post-tension,460 stall -- Director of Construction t Mirada.CA 90637 Parking Structure with 562-903=4790 Athle"Field.. 3.Mount San Antonio Gardens 179,056 at 4-1evel,Long-S 6MM I/06 Gary Semolich 900 E.Hamann Avenue Span,post-tension.511- President,SC Ruilders + Pomona CA 91767 stall Parking Structure 805-497-4497 I i i Iz I Exhibit " 6 " i BID SCHEDULE PLAN NOS. 12591 (1-8), 12318(1-33), 12336(1-19), 12337(1-21), 12327(1-4), 12348(1-5) METROLINK PARKING STRUCTURE 1275 W 3RD STREET, AT THE SANTA FE DEPOT (G©04-19) FEDERAL PROJECT NO, CML-5033(039), EA N08-n4883L rr&M ESTIMATED DESCRIPTION OF ITEMS UNIT PRICE TOTAL NO. QUANTITY UNIT WITH UNIT PRICE W'RIR'EN IN WORDS IN FhAL•RES IN FIGURES 7. 1 LS LANDSCAPE and IRRIGATION, Structural Owen Desi s (Plan N0.12327 bas theLum Sun n pri«ar f to ttH eH Dollars & ra Cents IS $ S. I LS LANDSCAPE and IRRIGATION PLAN On-Site, Last West (Plan No.12348 L at tha - Lamp Sum Price Of sirFy 5rx Dollars &_- Y� `Cents LS 9- 2 EA RELOCATE Existing PALM: TREE,at ->'l,✓eP_ -I-G,ar�s�rnd :�ic�-u�i 3� }rap Dollars . & �e1ro ICcn�+perEAC11 10, 35 LF RFZ10VE Uidag Rosk sad Mortar Wall (Adyuent o the hR'Vernon Rtidgo), al 7h i Dollars &jLj Y Cents per LIN.FT. S-2-0-0 1LP 5 IL 370 LF REMJOVE Exhtfig Drain Trmch, at_ /; Dollars 5j2�Yq ` Ceats per LIN.FT. S 9,Z1 ILF S 5 12, 72 LF REMOVE Exlstia8L42"RCP sad 411" RCP Storm Drain, at 5;1X Dollan ,' & S i C Cents per LIN.FT. S_tILF S 4 i 13. 1 LS REMOVE Existing 3" Thick Concrete Sidew Ik slid A Dike, at the L mp ar 'ce - of �/✓t� �nUSet 'F/fifiJ &__�2_t°0 Cent,; LS 5_ � 4 9-3 I BID SCHEDULE - PLAN NOS. 12591(1-8), 12328(1-33), 12336(1-19), 12337(1-21), 12327(1-4� 12348(1-5) 41ETROLINK PARKING STRUCTURE 1275 1Y 3RD STREET, AT THE SANTA FE DEPOT (GB 04-19) FEDERAL PROJECT NO. C,YIL-5033(039), EA#08-924883L ITEM ESTIMATED DESCRIPTION OF ITEN13 UNIT PRICE TOTAL NO. QUANTITY 01T WITH t1MT PRICE WRITTEN IN WORDS IN HGURE4 IN FIGURES 26. 131 LF REINFORCED CONCRETE RETAINING WALL, per SPPWC Std. No,611-2, Type 2, . Hei ht Variable i' to W, ln g ctedin 9ackffll, at T yLum�•E� e) 11azs = �C3 Do q & Ceats per LIN.FT. SJLF 5 �St 29, 43 LF MASONRY RETAINING WALL,per SPPWC SM. No.618-2, Type"B", HeigM Variable 1.51 to 3'}(ncfy6 BaokfifE at_ (3vlP huntFre en fu p & I CaabpaLlN.Ff. .fjzj.jjtx s COP�TE.Y-GU7TEg,Y WI -per CITX 81i iJo 201,ae' 11"4 PCCCROSSGUTTER It SPANDR03,-: per CITY SK Nv,20t, at. $11/ Dollars & Cents per SQ.FT !SF S !1 t 32. 1 EA CATCH BASIN NO. 2 (W 71). per CITY Sn1. 240-404, at n °V N _ � ollars per/ j I &,. F-ey-a Cents per EACH S�J LRq/EA S,•_ 33, 1 EA CATCH BASIN NO. I (W-J-J 'b per �CI )SO-h No.403 at l�t Dollars & Yb Cents per EACH Sq j.SQJXA S �� B-6 E r i I Corporate Office- Las Vegas Office: 3188-H Airway Avenue, P. 702-646-7275 Costa Mesa,CA 92626 F. 702-646-7278 P. 7144441441 Hayward Office: -$PARKCO F. 714-444-1443 P. 510-670-8700 www.hbparkco.com CONSTRUCTION, INC. F. 510-670-8790 February 5,2010 City of San Bernardino 300 North"D" Street San Bernardino, CA 92418-0001 Attention: Mr. Robert G. Eisenbeisz Re: Bid Protest Mctrolink Parking Structure, Santa Fe Depot Dear Mr. Robert Eiscnbeisz This letter is to inform you that HBPARKCO CONSTRUCTION INC. is submiting our notice to rescind our bid protest of the Metrolink Parking Structure. This shall be effective immediately. We will not pursue any other course of action in this matter. Thank you for your consideration. Respectfully, Ronald R. Taber Vice President Business Development 714-444-1441 Ext. 1007 714-44401443 rontaberAhbparkco.com 1 RESOLUTION NO. COPY 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AWARDING A CONTRACT TO BOMEL CONSTRUCTION 3 COMPANY, INC. FOR CONSTRUCTION OF THE METROLINK PARKING STRUCTURE AT 1275 W. 3RD STREET NEAR THE SANTA FE DEPOT (GB.04-19), 4 FEDERAL PROJECT NO. CML-5033 (039), EA #08-924883L PER PLANS AND 5 SPECIAL PROVISIONS NOS. 12591, 12328, 12336, 12337, 12327, 12348. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. Bomel Construction Company, Inc., 8195 Kaiser Boulevard, Anaheim 9 Hills, CA 92808 is the lowest responsible bidder for Construction of the Metrolink Parking 10 Structure at 1275 W. 3rd Street near the Santa Fe Depot (GB 04-19), Federal Project No. 11 CML-5033 (039), EA 408-9248831 per Plans and Special Provisions Nos. 12591, 12328, 12 12336, 12337, 12327, 12348. 13 A contract is awarded accordingly to said bidder in a total amount of $4,167,526.00, 14 15 with a contingency amount of$625,134.00, but such award shall be effective only upon being 16 fully executed by both parties. All other bids, therefore, are hereby rejected. The City 17 Manager is hereby authorized and directed to execute said contract on behalf of the City; a 18 copy of the contract agreement is on file in the office of the City Clerk and incorporated herein 19 by reference as fully as though set forth at length. 20 SECTION 2. The Director of Finance is hereby authorized and directed to issue a 21 Purchase Order for services based on said contract. 22 23 SECTION 3. This contract and any amendment or modifications thereto shall not take 24 effect or become operative until fully signed and executed by the parties and no party shall be 25 obligated hereunder until the time of such full execution. No oral agreements, amendments, 26 27 28 �i3 RESOLUTION ... AWARDING A CONTRACT TO BOMEL CONSTRUCTION 1 COMPANY, INC. FOR CONSTRUCTION OF THE METROLINK PARKING 2 STRUCTURE AT 1275 W. 3RD STREET NEAR THE SANTA FE DEPOT (GB 04-19), FEDERAL PROJECT NO. CML-5033 (039), EA #08-924883L PER PLANS AND 3 SPECIAL PROVISIONS NOS. 12591, 12328, 12336, 12337, 12327, 12348. 4 5 modifications or waivers are intended or authorized and shall not be implied from any act or 6 course of conduct of any party. 7 SECTION 4. This resolution is rescinded if the parties to the contract fail to execute it 8 within sixty (60) days of passage of the resolution. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION ... AWARDING A CONTRACT TO BOMEL .CONSTRUCTION 1 COMPANY, INC. FOR CONSTRUCTION OF THE METROLINK PARKING 2 STRUCTURE AT 1275 W. 3RD STREET NEAR THE SANTA FE DEPOT (GB 04-19), FEDERAL PROJECT NO. CML-5033 (039), EA #08-924883L PER PLANS AND 3 SPECIAL PROVISIONS NOS. 12591, 12328, 12336, 12337, 12327, 12348. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 and Common Council of the City of San Bernardino at a meeting thereof,held on the 6 day of , 2010, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 9 ESTRADA 10 BAXTER I1 BRINKER 12 SHORETT 13 KELLEY _ 14 JOHNSON _ 15 16 MC CAMMACK 17 City Clerk 18 19 The foregoing resolution is hereby approved this day of , 2010. 20 21 Patrick J. Morris,Mayor 22 City of San Bernardino Approved as to form: 23 24 B ; 25 4Jame F. Penman City Attorney 26 27 28 CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE DATE: February 22, 2010 TO: Robert Eisenbeisz, City Engineer Development Services FROM: Margaret Fedor, Executive Assistant to the City Clerk RE: Transmitting Documents for Signature—Resolution No. 2010-30 At the Mayor and Common Council meeting of February 16, 2009, the City of San Bernardino adopted Resolution No. 2010-30 - Resolution of the Mayor and Common Council of the City of San Bernardino awarding a contract to Bomel Construction Company, Inc.for construction of the Metrolink parking structure at 1275 W. 3rd Street near the Santa Fe Depot (GB 04-19), Federal Project No. CML-5033 (039), EA #08-924883L per plans and special provision Nos. 12591, 12328, 12336, 12337, 12327, 12348. Attached are one (1) original, bound agreement and three (3) duplicate bound agreements to be executed. Please obtain signatures in the appropriate locations and return the ORIGINAL agreement to Margaret Fedor in the City Clerk's Office as soon as possible. Retain one agreement for your records and forward the remaining agreements to the appropriate party. Please note that the agreement will be null and void if not executed by April 19, 2010. Thank you. I hereby acknowledge receipt of the above mentioned documents. Signed: PLEASE SIGN AND RETURN Date: C/