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CC 2017-03-28_09i Award Plumbing Retrofit Contract MEMORANDUM TO: CITY COUNCIL FROM: GEOFF ENGLISH, PUBLIC WORKS DIRECTOR BY: SHANE TAYLOR, PUBLIC WORKS SUPERVISOR – UTILITIES SUBJECT: CONSIDERATION OF AWARD OF A CONTRACT FOR THE PLUMBING RETROFIT PROGRAM DATE: MARCH 28, 2017 RECOMMENDATION: 1. Award the contract for the Plumbing Retrofit contract to Waterboys Plumbing, Inc. in the amount of $90,695.00; 2. Authorize the Mayor to execute the contract; 3. Direct staff to issue the Notice of Award and Notice to Proceed along with other necessary contract documents. FINANCIAL IMPACT: A total of $20,000 is remaining in the Water Neutralization Fund allocated for the Plumbing Retrofit Program in the FY 2016/17 budget. The balance of funds for the contract will be proposed in the FY 2017/18 Budget in Water Neutralization Contractual Services (account 226-4306-5303), which historically included funds for the Plumbing Retrofit Program. BACKGROUND: The City Council adopted a Water Conservation Program on May 13, 2003. Phase I of the program began in April of 2004 and was focused on retrofitting existing residential plumbing with low flow fixtures. Over the last 13 years, a total of 2,111 single family homes, 547 apartment units, 241 mobile homes, 260 motel units, 10 church facilities, and 155 commercial establishments have been retrofitted. A total of 5,257 toilets, 4,186 faucet aerators, 1,920 showerheads, and 423 pressure regulators were installed. The total cost to date for Phase I is $1,373,423.33. In 2005, the City adopted a program requiring mandatory retrofit upon change of ownership of real property (reference Arroyo Grande Municipal Code Chapter 13.06). A total of 1303 properties have been issued Water Conservation Certificates pursuant to AGMC Section 13.06.040 indicating that these residences comply with these requirements. An estimated 182 acre feet of water per year has been conserved due to the retrofit program. Item 9.i. - Page 1 CITY COUNCIL CONSIDERATION OF AWARD OF A CONTRACT FOR THE PLUMBING RETROFIT PROGRAM MARCH 28, 2017 PAGE 2 On February 25, 2014, Waterboys Plumbing, Inc. was awarded a one year contract, which included options for two, one year extensions. During the period of their contract, extending over six years, Waterboys Plumbing, Inc. has performed to a satisfactory level and the City has received many favorable comments regarding the quality of workmanship and product. On February 8, 2017 the City mailed out eight (8) Request for Proposals (RFP’s) for the Plumbing Retrofit Program. The RFP was also posted on the City’s website and the Notice to Bidders was advertised in the Tribune. The bidding period closed on March 7, 2017. One bid was received. The Contract Documents and Specifications for Plumbing Retrofit Program – Notice to Contractors – Submission of Bids, paragraph 4, states “All bids are to be compared on the basis of the City's estimate of the quantities of work to be done.” The lowest and only bid received was from Waterboys Plumbing, Inc. and it is staff’s recommendation to award a contract to Waterboys Plumbing, Inc. ANALYSIS OF ISSUES: In 2004, the program targeted 4,357 single family homes and 44 apartment complexes. After 13 years, 48% of the homes and 90% of the apartment complexes have been retrofitted by the City. In addition, 241 mobile homes, 155 commercial properties, 10 churches and 2 school restroom facilities have now been retrofitted. Indoor water conservation using retrofitting has proven to be very reliable and consistent. The per capita consumption for 2016 was 99 gallons per day per person compared to 164 gallons per day person in 2013 when the last retrofit contract was approved. Phase II programs have also helped conserve water with washing machine rebates, cash for grass, and large landscape audits. ALTERNATIVES: The following alternatives are provided for the Council’s consideration: 1. Award the contract to Waterboys Plumbing, Inc; 2. Modify as appropriate and award the contract; 3. Do not award the contract; or 4. Provide direction to staff. ADVANTAGES: Every single family residential property retrofitted conserves approximately 12,000 gallons of water per year. Qualified property owners may still take advantage of the program and receive free retrofitting to comply with the Arroyo Grande Municipal Code requirements for mandatory retrofit upon change of ownership. DISADVANTAGES: Awarding the contract will deplete funds available for Phase II of the Water Conservation Program by up to $90,695.00. Item 9.i. - Page 2 CITY COUNCIL CONSIDERATION OF AWARD OF A CONTRACT FOR THE PLUMBING RETROFIT PROGRAM MARCH 28, 2017 PAGE 3 ENVIRONMENTAL REVIEW: No environmental review is required for this item. PUBLIC NOTIFICATION AND COMMENTS: The Agenda was posted at City Hall and on the City’s website in accordance with Government Code Section 54954.2. Attachments: 1. Bid Opening Log Sheet 2. City of Arroyo Grande Formal Bid Request Item 9.i. - Page 3 CITY OF ARROYO GRANDE STATE OF CALIFORNIA CONTRACT FOR: CITY OF ARROYO GRANDE PLUMBING RETROFIT PROGRAM THIS AGREEMENT, made and entered into this 28th day of March, 2017, by and between the CITY OF ARROYO GRANDE, a municipal corporation of the State of California, hereinafter designated City, party of the first part, and WATERBOYS PLUMBING, INC., hereinafter designated as Contractor, party of the second part, WITNESSETH: That the parties hereto do mutually agree as follows: ARTICLE I. For and in consideration of the payments and agreements hereinafter mentioned to be made and performed by City, Contractor agrees with City to furnish all materials, equipment and labor and construct facilities for City, and to perform and complete in a good and workmanlike manner all the work pertaining thereto shown on the plans and described in the specifications hereto attached, and to furnish at his own proper cost and expense all tools, equipment, labor, and materials necessary therefore, except such materials as in the said specifications are stipulated to be furnished by City, and to do everything required by this Contract and the said specifications and plans, and the requirements of the Engineer under them, to wit: CONTRACT SCHEDULE OF COSTS ITE M NO. QTY UNIT DESCRIPTION UNIT PRICE AMOUNT 1 250 EA 1.28 gpm Flush Toilet (12” Rough) $240.00 $60,000.00 50 EA 1.28 gpm Flush Toilet (10” Rough) $290.00 $14,500.00 2 300 EA Toilet Seat and Cover $16.00 $4,800.00 3 300 EA 1.5 gpm Faucet Aerator $5.00 $1,500.00 4 50 EA 1.5 gpm Shower Head $18.00 $900.00 5 175 EA Water Pressure Determination $10.00 $1,750.00 6 10 EA Adjust Existing Water Pressure Regulating Valve $5.00 $50.00 7 15 EA Replace Existing 3/4" Water Pressure Regulating Valve $1.00 $15.00 8 10 EA Replace Existing 1" Water Pressure Regulating Valve $2.00 $20.00 9 20 EA Install New 3/4" Water Pressure Regulating Valve $169.00 $3,380.00 10 20 EA Install New 1" Water Pressure Regulating Valve $189.00 $3,780.00 TOTAL CONTRACT PRICE $90,695.00 Item 9.i. - Page 4 TOTAL CONTRACT IN WORDS: Ninety Thousand, Six Hundred Ninety Five Dollars BY: _____ SIGNATURE DATE TITLE: City of Arroyo Grande Plumbing Retrofit Program CONTRACTORS BUSINESS NAME: Waterboys Plumbing, Inc. CONTRACTORS LICENSE NO.: 928834 LICENSE EXPIRATION DATE: 2/28/2019 – END OF CONTRACT SCHEDULE – ARTICLE II. For furnishing all said equipment, materials and labor, performing demolition as required, and doing all the work contemplated and embraced in this Contract; and for all loss and damage arising out of the nature of the work aforesaid, or from the action of the elements or from any unforeseen difficulties which may arise or be encountered in the prosecution of the work until its acceptance by City, and for all risks of every description connected with the work; also for all expenses incurred by or in consequence of the suspension or discontinuance of work, except such as in the said specifications are expressly stipulated to be borne by City; and for well and faithfully completing the work and the whole thereof, in the manner shown and described in the said plans and specifications and in accordance with the requirements of the Engineer under them, City will pay and Contractor shall receive as full compensation therefore the amounts for such work as installed for the unit prices bid therefore in accordance with the proposal of Contractor. ARTICLE III. City hereby promises and agrees with said Contractor to employ, and does hereby employ, said Contractor to provide the materials and to do the work according to the terms and conditions herein contained and referred to, for the prices aforesaid, and hereby contracts to pay the same at the time, in the manner and upon the conditions set forth in the specifications; and the said parties for themselves, their heirs, executors, administrators, successors, and assigns, do hereby agree to full performance of the covenants herein contained. ARTICLE IV. Contract Documents shall consist of The Notice to Contractors, the Statement of Prevailing Wages, the Contract Bid, the Contract Agreement, the Standard Specifications, the Technical Specifications, and the Special Provision mentioned therein and titled “CITY OF ARROYO GRANDE, PLUMBING RETROFIT PROGRAM”, all of which are hereto attached are hereby incorporated in and made a part of this Contract. In accordance with California Labor Code Section 1725.5, Contractors and Subcontractors (as defined by California Labor Code Section 1722.1) bidding on or engaging in the performance of any Public Works contracts in California shall be registered with the Department of Industrial Relation. In accordance with the requirements of Labor Code Section 1771.4(a)(1), this project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. In accordance with the requirements of Public Contract Code Section 9204(e), a copy of Public Contract Code Section 9204 is attached hereto and made a part of these specifications. Item 9.i. - Page 5 ARTICLE V. Should any of the materials or equipment prove defective or should the work prove defective due to faulty workmanship, material furnished or methods of installation, or should the work or any part thereof fail to operate properly as originally intended and in accordance with the plans and specifications, due to any of the above causes, all within twelve (12) months after date on which the work called for in this Contract is accepted by City, the undersigned agrees to reimburse City, upon demand, for its expenses incurred in restoring said work to the condition contemplated in said project, including the cost of any such equipment or materials replaced and the cost of removing and replacing any work necessary to make such replacement or repairs, or, upon demand by City, to replace any such materials and to repair said work completely without cost to City so that said work will function successfully as originally contemplated. City shall have the unqualified option to make any needed replacement or repairs itself or to have such replacements or repairs done by the undersigned. In the event City elects to have said work performed by the undersigned, the undersigned agrees that the repairs shall be made and such materials as are necessary shall be furnished and installed within a reasonable time after the receipt of demand from City. If the undersigned shall fail or refuse to comply with his obligations under this guaranty, City shall be entitled to all costs and expenses, including attorney's fees, reasonably incurred by reason of the said failure or refusal. ARTICLE VI. If Contractor should be adjudged a bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a receiver should be appointed on account of his insolvency, or if he or any of his subcontractors should persistently violate any of the provisions of the Contract, or if he should disregard laws, ordinances or the instructions of the Engineer, then City may, upon certificate of the Engineer when sufficient cause exists to justify such action, serve written notice upon Contractor and his surety of its intention to terminate the Contract, such notice to contain the reasons for such intention to terminate the Contract, and unless, within five (5) days after the serving of such notice, such violations shall cease and satisfactory arrangements for correction thereof be made, the Contract shall, upon the expiration of said five (5) days, cease and terminate. In the event of any such termination, City shall immediately serve written notice thereof upon the surety and Contractor, and the surety shall have the right to take over and perform the Contract, provided, however, that if the surety, within ten (10) days after the serving upon it of notice of termination, does not give City written notice of its intention to take over and perform the Contract or does not commence performance thereof within the ten (10) days stated above from the date of the serving of such notice, City may take over the work and prosecute the same to completion by Contract or by any other method it may deem advisable, for the account and at the expense of Contractor, and Contractor and his surety shall be liable to City for any excess cost occasioned City thereby, and in such event City may, without liability for so doing, take possession of and utilize in completing the work such materials, appliances, plans and other property belonging to Contractor as may be on the site of the work and necessary therefore. In such case Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the Contract price shall exceed the expenses of finishing the work, including compensation for additional managerial and administration services, such excess shall be paid Contractor. If such expense shall exceed such unpaid balance, Contractor shall pay the difference to City. The expense incurred by City, as herein provided, and damage incurred through Contractor's default, shall be certified by the Engineer. ARTICLE VII. The Contractor shall indemnify, defend, and hold harmless the City, and its officers, officials, employees and agents, from and against any and all claims asserted, liability, loss, damage, expense, costs (including without limitation costs and fee of litigation) of every nature arising of, directly or indirectly, or in connection with this Contract or the acts or omissions of Contractor, Contractor’s Subcontractors, employees, representatives, agents and invitees including, but not limited to, performance of the work hereunder or failure to comply with any of the obligations contained herein, except such loss Item 9.i. - Page 6 or damage which was caused by the established active negligence of City or the established sole negligence or willful misconduct of City, its officers, officials, employees and agents. Said indemnification and hold harmless provisions shall be in full force and effect regardless of whether or not there shall be insurance policies covering and applicable to such liability, loss, damage, expense or cost. The Contractor agrees that the use of any and all public streets and improvements which are part of or subject to this Contract shall be at all times, prior to the final acceptance by the City, the sole and exclusive risk of' the Contractor. The Contractor further specifically agrees that he shall indemnify and hold City free of any liability for any accident, loss or damage to the work which is the subject of this Contract prior to its completion and acceptance by the City. ARTICLE VIII. It is further 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 therefore, then this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said bid or proposal conflicting herewith. ARTICLE IX. Time is of the essence of this contract and failure to comply with this provision shall be a material breach of this contract. ARTICLE X. If any part of this contract is held invalid by a court of competent jurisdiction, the balance shall retain its full force and effect. ARTICLE XI. Maintenance of required insurance coverage is a material element of this contract and failure to maintain or renew coverage or to provide evidence of renewal shall be a material breach of this contract. Item 9.i. - Page 7 IN WITNESS WHEREOF: The parties hereto have caused this Contract to be executed the day and year first above written. CITY OF ARROYO GRANDE By: _____________________________________ Jim Hill, Mayor ATTEST: ________________________________________ Kelly Wetmore, City Clerk CONTRACTOR By: ___________________________________ _______________________________________ Title Item 9.i. - Page 8 9204. (a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner. (b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project. (c) For purposes of this section: (1) “Claim” means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following: (A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project. (B) Payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled. (C) Payment of an amount that is disputed by the public entity. (2) “Contractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who has entered into a direct contract with a public entity for a public works project. (3) (A) “Public entity” means, without limitation, except as provided in subparagraph (B), a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a charter city and county, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency. (B) “Public entity” shall not include the following: (i) The Department of Water Resources as to any project under the jurisdiction of that department. (ii) The Department of Transportation as to any project under the jurisdiction of that department. (iii) The Department of Parks and Recreation as to any project under the jurisdiction of that department. (iv) The Department of Corrections and Rehabilitation with respect to any project under its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code. (v) The Military Department as to any project under the jurisdiction of that department. (vi) The Department of General Services as to all other projects. (vii) The High-Speed Rail Authority. (4) “Public works project” means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind. Attachment to Plumbing Retrofit Program Contract Item 9.i. - Page 9 (5) “Subcontractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor. (d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision. (B) The claimant shall furnish reasonable documentation to support the claim. (C) If the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the public entity shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion. (D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply. (2) (A) If the claimant disputes the public entity’s written response, or if the public entity fails to respond to a claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute. (B) Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the public entity shall provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section. (C) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section. (D) Unless otherwise agreed to by the public entity and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced. (E) This section does not preclude a public entity from requiring arbitration of disputes under private arbitration or the Public Works Contract Arbitration Program, if mediation under this section does not resolve the parties’ dispute. (3) Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public entity’s failure to have responded to a claim, or its Item 9.i. - Page 10 failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant. (4) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent per annum. (5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, the contractor may present to the public entity a claim on behalf of a subcontractor or lower tier subcontractor. A subcontractor may request in writing, either on his or her own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be presented to the public entity shall furnish reasonable documentation to support the claim. Within 45 days of receipt of this written request, the contractor shall notify the subcontractor in writing as to whether the contractor presented the claim to the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so. (e) The text of this section or a summary of it shall be set forth in the plans or specifications for any public works project that may give rise to a claim under this section. (f) A waiver of the rights granted by this section is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing, mediation and proceed directly to the commencement of a civil action or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of this section, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in this section. (g) This section applies to contracts entered into on or after January 1, 2017. (h) Nothing in this section shall impose liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of an awardee to meet its contractual obligations. (i) This section shall remain in effect only until January 1, 2020, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date. (Added by Stats. 2016, Ch. 810, Sec. 1. Effective January 1, 2017. Repealed as of January 1, 2020, by its own provisions.) 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