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HomeMy WebLinkAboutC-3796 - 2005-06 Balboa Island Bayfront Sidewalk & Drainage ImprovementsCITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK LaVonne M. Harkless. MMC September 12, 2007 Fleming Environmental 133 N. Pixley Street Orange, CA 92868 Subject: Balboa Island Bayfront Sidewalk and Drainage Improvements FY05 -06 (C -37g10) To Whom It May Concern: On September 12, 2006, the City Council of Newport Beach accepted the work of the subject project and authorized the City Clerk to file a Notice of Completion, to release the Labor & Materials Bond 35 days after the Notice of Completion had been recorded in accordance with applicable portions of the Civil Code, and to release the Faithful Performance Bond one year after Council acceptance. The Labor & Materials Bond was released on October 24, 2006. The Surety for the contract is Insurance Company of the West, and the bond number is 2172995. Enclosed is the Faithful Performance Bond. Sincerely, LaVonne M. Harkless, MMC City Clerk cc: Public Works Department Frank Tran, P.E. enclosure 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915 Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 • www.city.newport- beach.ca.us CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REF'AIRiS CONTRACT NO. 3796 BOND NO. 2172995 ,1,-41THFUL PERFORMANCE BOND The premium charges on this Bond is $ 4,213 y00 being at the 1310 of $ 11.00 per _ _ thousand of the Contract price. WHEREAS, the City Council of the City of Nowport Beach, State of California, by motion adopted, awarded to FLEMING ENVIRONMENTAL., hereinafter designated as the "Principal ", a contract for construction of 05-06 BALBOA.ISLAND BAYFRONT REPAIRS, Contract No. 3796 in the City of Newport Beach, to strict conformity with the plans, drawings, specifications, and other Contract Documents maintained in the Public Works Dopallmont of the Ctty of Newport Beach, all of which are incorporated herein by this reference. WHEREAS, Principal tins oxecuted or is about to execute Contract No. 3796 and 010 terms thereof require the furnishing of a Bond for the faithful performance of the Contract; NOW, THEREFORE, we, 0K, Principal, and Insurazxe Ccmfiany Of The Rest _ duly authorized to transact business under the laws of 010 State Of Cniifornla as Surely (hereinafter 'Surety"), are held and firmly bound unto 010 City of Newport Beach, in lho sum of Three Hundred Eighty -Two Thousand, Nine Hundred Ninety -Four and 00100 ($382;994.00) lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that If the Prineilial, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perfoml any or all Die work, covenants, conditions, and agreements in the Contract Documents and any alteration Ilwoof made as therein provided on its part, to bo kept and performed at tho time and in the manner therein specified, and in all respects according to its true intent and nhoardng, or fails to Indemnify, defend, and save harmless the Cily of Newport Brach, its officers, employees and agents, as (herein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding lho sum specified in this Bond; ottlerwlse this obligation shall become null and void. 28 As a part of ilia obligation secured hereby, and in addition to the fcice amount specified in this f erformnnce Bond, there shall be included costs and reasonable expenses and fees, Including reasonable attorneys fees, incurred by the City, only in ilia event the City Is required to brine an nclion in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no chango, extension of fime, allorations or additions to (be terms of the Contract or to Ilia work to be performed thereunder or to the specifications accompanying the some shall in any way affect its abligatons on this Bond, and it does hereby waive notice of any such change, extension or time. alterations or additions of Ilia Contract or to the work or to lire specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force: and effect for one (1) year following the date of formal acceptallea of the Project by the City. In ilia event that the Principal executed this bond as an individual, it Is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surely above named, on the 2nd , day of February ___,2000. Fleming Fmviroruental, Inc. FL.EMING L--NVIRONMEKFAL (Principal) Insuratce.Cuapany of We The st — Name of Surety 11455 El Camim Real San Diego CA 92130--2045 Address of Surety 858 - 350 -2400 . Telephone Signature/Title Fleming Jr. President Agent Ted Adamson Attorney- Irr-Fact Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST 13E ATTACHED 29 State of California County of Orange On 2/3/06 before me, Jennifer Martin — Notary Public (DATE) (NAMErITFLE OF OFFICER) Personally appeared Terry L. Fleming, Jr. (NAME(S) OF SIGNER(S)) Personally known to me - OR - 7ENNff -R MART iiN COMM t! 1348198 A W , -•y NOTARY PUBLIC- CALIFORNIA m ORANGE COUNTY jj My Commi.sloq fxpirm ApA 22.2M6 ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledgement to me that he /she/they executed the same in his/her/their signature(s). on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. (SEAL) a'4�iz Signature 9f Notary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Title or Type of Document MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named Above CAPACITY CLAIMED BY SIGNER'S ❑ MDNIDl1AL(S) OFFICERS(S) PRESIDENT ❑ PARTNER(S) ❑ UNITED ❑ GENERAL ❑ ATTORNEY M FACT ❑ TRUSTS) ❑ GUARDWWCONSERVATOR ❑ OTHER SIGNER IS REPRESENTING: (Name of Person(s) or Entity(tes) Fleming Environmental Inc. CAPACITY CLAIMED BY SIGNER(S) ❑ MtO VIDUAL(S) ❑ CORPORATE OFFICER(S) (TITLES) ❑ PARTNERS) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY IN FACT ❑ TRUSTERS) ❑ GLIARDIAWCONSERVATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(iss) State of California County of Orange On February 2. 2006 before me, Lynn A. Beimer — Notary Public (DATE) (NAMEMTLE OF OFFICER) Personally appeared Ted Adamson (NAME(S) OF SIGNER(S)) XPersonally known tome - OR - J LYNN A BEIMER 1 Comm(sslon # 1456728 z Notary Public - California 5 Orange County M Q y y Comm. Dpses Dec 16, 2007 ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledgement to me that he /she /they executed the same in his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. (SEAL) AT e Sig ature of Notary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Title or Type of Document MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named CAPACITY CLAIMED BY SIGNER'S [` INDNIDUAL(S) OFFICERS(S) r PARTNER LIMIT® [j GENERAL (.7f ATTORNEY IN FACT r TRUSTEE(S) [ GUARDl4NICONSERVATOR r; OTHER SIGNER IS REPRESENTING: (Name of Person(s) or En Rtes) CAPACITY CLAIMED BY SIGNER(S) INDW[DUAL(S) !CORPORATE OFFICER(S) (TITLES) PARTNER(S) 1] LKIIED GENERAL C ATTORNEY IN FACT f TRUSTEE(S) f7 GUARDIAWCOfNSERVATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) No. 0002059 ICW GROUP Power of Attorney Insurance Company of the West Explorer Insurance Company Independence Casualty and Surety Company KNOW ALL MEN BY THESE PRESENTS: That Insurance Company of the West, a Corporation duly organized under the laws of the State of California, Explorer Insurance Company, a Corporation duly organized under the laws of the State of California, and Independence Casualty and Surety Company, a Corporation duly organized under the laws of the State of Texas, (collectively referred to as the "Companies"), do hereby appoint TED ADAMSON, NORMAN PIERCE, RICHARD L. WELLS their true and lawful Attorney(s) -in -Fact with authority to date, execute, sign, seal, and deliver on behalf of the Companies, fidelity and surety bonds, undertakings, and other similar contracts of suretyship, and any related documents. In witness whereof, the Companies have caused these presents to be executed by its duly authorized officers this 1 st day of November, 2005. t�auru,r F 5V(N�:'t, yuat�r -'W�o INSURANCE COMPANY OF THE WEST �cOMraMr ly"' 4/4eRPOR�P �...g� �� EXPLORER INSURANCE COMPANY r� <{ INDEPENDENCE CASUALTY AND SURETY a\ / COMPANY Jeffrey D. Sweeney, Assistant Secretary State of California ss. County of San Diego John L. Hannum, Executive Vice President On November 1, 2005, before me, Francis Fafiml, Notary Public, personally appeared John L. Hatmum and Jeffrey D. Sweeney, personally known to roc to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument, the entity upon behalf of which the persons acted, executed the instrument. T Witness my hand and official seal. RESOLUTIONS This Power of Attorney is granted and is signed, sealed and notarized with facsimile signatures and seals under authority of the following resolutions adopted by the respective Boards of Directors of each of the Companies: 'RESOLVED: That the President, an Executive or Senior Vice President of the Company, together with the Secretary or any Assistant Secretary, are hereby authorized to execute Powers of Attorney appointing the penxm(s) named as Attorney(s)-in-Fact to date, execute, sign, seal, and deliver on behalf of the Company, fidelity and surety bonds, undertakings, and other similar contracts of suretyship, and any related documents. RESOLVED FURTHER: That the signatures of the officers making the appointment, and the signature of any officer certifying the validity and current status of the appointment, rosy be facsimile representations of those signatures; and the signature and seal of any notary, and the seal of the Company, may be facsimile representations of those signatures and seals, and such facsimile representations shall Rave the same force and effect as if manually affixed. The facsimile' representmions referred to herein may be affixed by stamping, printing, typing, or photocopying .° CERTIFICATE I, the undersigned, Assistant Secretary of insurance Company of the West, Explorer Insurance Company, and Independence Casualty and Surety Company, do hereby certify that the foregoing Power of Attorney is in full force and effect, and has not been revoked, and that the above resolutions were duly adopted by the respective Boards of Directors of the Companies, and are now in full force. IN WITNESS WHEREOF, I have set my hand this 2 day of February 2006 �AiG^ Jeffrey D. Sweeney, Assistant Secretary To verify the authenticity of this Power of Attorney you may call 1- 800 - 877 -1111 and ask for the Surety Division. Please refer to the Power of Attorney Number, the above named individual(s) and details of the bond to which the power is attached For information or filing claims, please contact Surety Claims, ICW Group, 11455 El Camino Real, San Diego, CA 92130 -2045 or call (858) 350 -2400. 0 C'ry o� tA ,•,� z u � � o cc r N m r u' N w cp co a � OWE � ca cco o m a� � r m -d as u, to n X Cn W 9 C C, 0 rt � W z �l n X H = m m m c -n m zmm m �+ DZA 0 W @"tlC J a MIIZ — m mmz 1 v y� µ 1( OOM .. OOm O C !Z J Dzm _... O 000 O •p £ O m o V � I N i - u) g 1 w 1+ License Detail 0 0 Page I of 3 License Detail CALIFORNIA CONTRACTORS STATE LICE Contractor License # 746017 DISCLAIMER A license status check provides Information taken from the CSLB license data base. Befoi on this information, you should be aware of the following limitations: • CSLB complaint disclosure Is restricted by law (B &P 7124.6). If this entity is subject complaint disclosure, a link for complaint disclosure will appear below. Click on the I button to obtain complaint and/or legal action information. • Per B &P 7071.17, only construction related civil judgments reported to the CSLB art disclosed. • Arbitrations are not listed unless the contractor fails to comply with the terms of the arbitration. • Due to workload, there may be relevant information that has not yet been entered of Board's license data base. Extract Date: 09/20/2007 * * * Business Information * * * FLEMING ENVIRONMENTAL INCORPORATED 6130 VALLEY VIEW STREET BUENA PARK, CA 90620 Business Phone Number. (714) 228 -0935 Entity: Corporation Issue Date: 02/18/1998 Expire Date: 02/29/2008 * * * License Status * * * This license is current and active. All information below should be reviewed. * * * Classifications * * * Class Description 0 GENERAL ENGINEERING CONTRACTOR © GENERAL BUILDING CONTRACTOR htip: /hvww2.csib.ca.gov /CSLB LIBRARY / License +Dctaii.asp ?LicNuma746017 09/20/2007 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 BOND NO, 2172995 FAITHFUL PERFORMANCE BOND Pie premium charges on this Bond is $ 4,213;00 being at the rate of $ — _ _11.00 per thousand of the Contract price. WHEREAS, the City Council of the City of Newport Beach, Stale of California, by motion adopted, awarded to FLEMING ENVIRONMENTAL, hereinafter designated as the "Principal ", a contract for construction of 05-06 BALBOA ISLAND BAYFRONT REPAIRS, Contract No. 3796 in die City of Newport Beach, in strict conformity with the plans, drawings, specifications, and other Contract Documents maintained In the Public Works Depar tment of the City of NowpW Beach, all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute Contract No. 3796 and (he terms thereof requiro the furnishing of a Bond for the faithful performance of the Contract; NOW, THEREFORE, we, (he Principal, and Insurance Company Of ltie West duty authorized to transact business under the laws of the State of Enllromia�as Surety (hereinafter "Surety "), are held and firmly bound unto tho City of Newport Beach, in (lie sum of Three Hundred Eighty-Two Thousand, Nine Hundred Ninety -Four and 00100 ($382,994.00) lowrul money of the United States of America, said sum being equal to 100% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present, THE CONDITION OF THIS OBLIGATION IS SUCH, that If the Principal, or the f"fincipal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep. and perform any or all the work, covenants, conditions, and agreements in the Contract Documents and any alteration 0iereof made as therein provided on its part, to be kept and porronned at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Nowporl Bonch, its officers, employees and agents, as 0lerein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding (he sum specified in this Bond; oQrerwlse this obligation shall become null and void. 28 As a pgrt of the obligation secured hereby, and in addition to Die face amount specified in this Perfotmnnce Bond, there shall be included costs and rcasonablo expenses and fees, Including reasonable attorneys fees, incurred by the City, only in the event the City Is required to bring an action In law or equity against Surety to enrorco the obligations of this Bond. Surely, for value received, stipulates and agrees that no change, extension of time, allerrHlons or additions to tho terms of the Contract or to Iho work to be performed thereunder or to the spocificalions accompanying the same shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of Me Contract or to the work or to the specifications. This Faithful Perfomianco Bond shall be extended and maintained by the Principal in full force and effect for one (1 ) year following the dalo of formal acceptance of the Project by the City. In the event that the Principal executed this bond as an Individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surely above named, on the 2nd • day of F nnly _ 2006. Fleming Enviroawntal, Inc. FLtWING :NVIR E- 1`4TAL (Principal) Insurance Company Of The West Nance of Surely -- ....... - -- 11455 E1 Camino Real San Diego CA 92130 -2045 Address of Surety 858 -350 -2400. Telephone .__. ......- •- --_.._ J Jr. President Ted Adamson Attorney- Irr-Fact Print Name and Title w NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED 29 State of California County of Orange On 2/3/06 before me, Jennifer Martin — Notary Public (DATE) (NAMErFITLE OF OFFICER) Personally appeared Terry L. Fleming, Jr. (NAME(S) OF SIGNER(S)) APersonally known tome -OR - JENNIFER M&KfIiN COMM # 1348196 M- Rl CC NOTARY PUBLIC - CALIFORNIA ORANGE COUNTY j I* Coiwissinn Frpires April 22,2006 ; ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledgement to me that he /she /they executed the same in his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. (SEAL) Signature 9f Notary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Title or Type of Document MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named Above CAPACITY CLAIMED BY SIGNER'S ❑ INDIVIDUAL(S) 13 OFFICERS(S) PRESIDENT ❑ PAR NER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY N FACT ❑ TRUSTEE(S) ❑ GUARDIAWCONSE2VATOR ❑ OTHER SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) Fleming Environmental Inc. CAPACITY CLAIMED BY SIGNER(S) ❑ NDM(DUAL(S) ❑ CORPORATE OFFICER(S) (TITLES) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY IN FACT ❑ TRUSTEE(S) ❑ GUARDIAWCONSE2VATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) State of California County of Orange On February 2, 2006 before me, Lynn A. Beimer — Notary Public (DATE) (NAMEMTLE OF OFFICER) Personally appeared Ted Adamson (NAME(S) OF SIGNER(S)) XPersonally known tome - OR - LYNN A. BEIMER @JMY Commission # 1456728 Notary Public - California Orange County Comm. Expires Dec 16, 21x77 a Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledgement to me that he /she /they executed the same in his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. (SEAL) A/ 1 Sigilature of Notary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Title or Type of Document MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of DESCRIBED AT RIGHT: Signer(s) Other Than Named Above CAPACITY CLAIMED BY SIGNER'S r INDIVIDUAL(S) OFFICERS(S) r PARTNERS) LIMM r GENERAL r ATrORNEY IN FACT r TRUSTEE(S) r GUARDIAWCONSERVATOR rOTHER SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) CAPACITY CLAIMED BY SIGNER(S) r INDIVIDUAL(S) [" CORPORATE OFFICER(S) (TITLES) r PARTNER(S) r LIFTED r GENERAL r ATTORNEY N FACT r TRUSTEE(S) r GUARDIANICONSERVATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) No. 0002059 ICW GROUP Power of Attorney Insurance Company of the West Explorer Insurance Company Independence Casualty and Surety Company KNOW ALL MEN BY THESE PRESENTS: That Insurance Company of the West, a Corporation duly organized under the laws of the State of California, Explorer Insurance Company, a Corporation duly organized under the laws of the State of California, and Independence Casualty and Surety Company, a Corporation duly organized under the laws of the State of Texas, (collectively referred to as the "Companies "), do hereby appoint TED ADAMSON, NORMAN PIERCE, RICHARD L. WELLS their true and lawful Attomey(s) -in -Fact with authority to date, execute, sign, seal, and deliver on behalf of the Companies, fidelity and surety bonds, undertaldngs, and other similar contracts of suretyship, and any related documents. In witness whereof, the Companies have caused these presents to be executed by its duly authorized officers this I at day of November, 2005. .�°4\ INSURANCE COMPANY OF THE WEST yoasrourre s fit ri( '-7 \�\ EXPLORER INSURANCE COMPANY •, o: ;SEAL jtc'„ �01Yva JKI INDEPENDENCE CASUALTY AND SURETY COMPANY Jeffrey D. Sweeney, Assistant Secretary State of California County of San Diego ss. OW4L-�--� John L. Hannum, Executi ve Vice President On November 1, 2005, before me, Francis Fulani, Notary Public, personally appeared John L. Harmum and Jeffrey D. Sweeney, personally known to me to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument, the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. Francis FafauL Notary Public RESOLUTIONS This Power of Attorney is granted and is signed, sealed and notarized with facsimile signatures and seals trader authority of the following resolutions adopted by the respective Boards of Directors of each of the Companies: "RESOLVED: That the President, an Executive or Senior Vice President of the Company, together with the Secretary or any Assistant Secretary, are hereby authorized to execute Powers of Attorney appointing the person(s) named as Attomey(s) -in -Fact to date, execute, sign, seal, and deliver on behalf of the Company, fidelity and surety bonds, undertakings, and other similar contracts of suretyship, and any related documents. RESOLVED FURTHER: That the signatures of the officers making the appointment, and the signature of any officer certifying the validity and current status of the appointment, may be facsimile representations of those signanues; and the signature and seal of any notary, and the seal of the Company, may be facsimile representations of those signatures and seals, and such facsimile representations shall have the same force and effect as if manually affixed. The facsimile representations referred to herein may be affixed by stamping, printing, typing, or photocopying." CERTIFICATE L the undersigned, Assistant Secretary of Insurance Company of the West, Explorer Insurance Company, and Independence Casualty and Surety Company, do hereby certify that the foregoing Power of Attorney is in full farce and effect, and has not been revoked, and that the above resolutions were duly adopted by the respective Boards of Directors of the Companies, and are now in full force. IN WITNESS WHEREOF, I have set my hand this 2 day of February 2006 Jeffrey D. Sweeney, Assistant Secretary To verify the authenticity of this Power of Attorney you may call 1-800 -877 -1111 and ask for the Surety Division. Please refer to the Power of Attorney Number, the above named individual(s) and details of the bond to which the power is attached. For information or filing claims, please contact Surety Claims, ICW Group, 11455 El Camino Real, San Diego, CA 92130-2045 m call (858) 350 -2400. • • CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK LaVonne M. Harkless, MMC October 24, 2006 Fleming Environmental 133 N. Pixley Street Orange, CA 92868 Subject: Balboa Island Bayfront Sidewalk and Drainage Improvements FY05 -06 (C -3796) To Whom It May Concern: On September 12, 2006, the City Council of Newport Beach accepted the work of the subject project and authorized the City Clerk to file a Notice of Completion, to release the Labor & Materials Bond 35 days after the Notice of Completion had been recorded in accordance with applicable portions of the Civil Code, and to release the Faithful Performance Bond one year after Council acceptance. The Notice of Completion was recorded by the Orange County Recorder on September 19, 2006, Reference No. 2006000623718. The Surety for the contract is Insurance Company of the West, and the bond number is 2172995. Enclosed is the Labor & Materials Payment Bond. Sincerely, LaVonne M. Harkless, MMC City Clerk cc: Public Works Department Frank Tran, P.E. encl. 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915 Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 • www.city.newport- beach.ca.us CiTY OF NEWPORT 13EACH PUBLIC WORKS DEPARTMENT 2005 -05 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO, 3796 BOND NO. 2172995 Premirm: Included In Aerfar once Bad LABOR AND MATERIALS PAYMENT BOND WHEREAS, ilia City Council of the City of Newport Beach, State of California, by motion adopted, has awanlod to FLEMiNG ENVIRONMENTAL, hereinafter designated as ilia 'Principal," a contract for construction of 06-06 BALBOA _ISLAND BAYFRONT REPAIRS, Contract No. 3796 in the City of Newport Beach, in strict conformity with the plans, drawings, specifloauons and other Contract Documents in the office of the Public Works Department of the City of Newport Boach, all of which are incorporated herein by this reference. . WHEREAS, Principal has executed or is about to execute Contract No. 3796 and (Ile terms thereof require the furnishing of a bond, providing that if Principal or any of Prirrcipars subcontractors, shall (ail to pay for any materials, provisions, or other supplies used in, upon, . for, or about the performance of the work agreed to be. don &, or for any work or labor done thereon of any kind, the Surety on this bond will pay the same to Ilia extent hereinafter set forth: NOW, THEREFORE, We the undersigned Principal, and, Imur� �Per9 of The West duly auterized to trans -4cl businoss hinder the taws of the Stale of as California, Surely, (referred to herein as "Surely') are held firmly bound unto the City of Newport Beach, to the stun of Three Hundred Eighty -Two Thousand, Nine Hundred Ninety -Four and 00100 ($362,994.00) lawful money of the United States of America, said sum being equal to 100% of the estimated amount payable by Uho City of Nowpoit Beach Linder rho terms of the Contract; for which payment well and truly to be made, we bind or.usolves, our hairs, execulors and administrators, successors, or assigns, jointly and severally, firmly by it rose present, . THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's subcontractors, fail to pay for any materials, provisions, or other supplies, implements. or machinery used in, upon, for, or about the performance of the work contracted to be done, or for any other work or labor thereon of any kind, or for amounts due Lauder the Unemployment Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wagas of employees of the Principal and subcontractors pursuant to Section 13020 of the. Unemployment Insurance Code with respect to such work and labor, then. the Surety will pay for the some, in an arnounl not oxceeding the sum specified in this Bond, and also, in case suit is brought to enforce the. obligations of Oils Bond, a reasonable allomeys fee, to be fixed by the Court as required by the provisions of Section 3250 of the Civil Code of the State of California. 70 0 .0 'The Bond shall Inure to the benefit of any and all persons, companies, and corporations entitled to file claims tinder SccUon 3181 of the California Civil Code so as to give a right of action to them or their assigns In any suit brought upon this Bond, as rcqufred by and in accordance with the provisions of Sections 3247 et. seq. of the Civil Code of the State of California. And Surely, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the some shall in any wise affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions to the teens of the Contract or to the work or to the specifications. In the event that any principal ahovo named executed this Bond as an individual, it is agreed that the death of any such principa( shall not exonerate the Surely from its obligations under this Bond. IN WITNESS WHEREOF, this instnrment has been duly executed by the above named Principal snd Surely, on the _ 2nd — day of February , 2006. Flemit� Em*iramentalzInc. _ FI.EMINO ENVIRONMENTAL (Principal) Inserarice,C_Of the West _._ Name of Surety 11455 El Camino Real San Diego CA 92130 -2+5 Address of Surety 858 - 350 -2400 ~ tlephone . President Ted Adamson Attorney -7g -Fact Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED 2.7 State of California County of Orange On 2/3/06 before me, Jennifer Martin — Notary Public (DATE) (NAMEITITLE OF OFFICER) Personally appeared Terry L. Fleming, Jr. (NAME(S) OF SIGNER(S)) 1 known tome - OR - ]ENNIFI;R MARI`l . °' COMM # 1348198 m NOTARY PUBLIC • CALIFORNIA Wm 73 Q ORANGE COUNTY jj Mr, Commission Expires April 22,2006 j 004444CT016404445 ^. C.4^+ X' ".:. n-. -441 I! o Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledgement to me that he/she/they executed the same in his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. (SEAL) gnature of atary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: TiNe or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above CAPACITY CLAIMED BY SIGNER'S ❑ INDIVIDUAL(S) OFFICERS(S) PRESIDENT ❑ PANS) ❑ LIMITED ❑ Gf34ERAL ❑ ATTORNEY N FACT ❑ TRUSTWS) ❑ GUARDIAWOONSERVATOR SIGNER IS REPRESENTING: (Name of Person(s) or EntiMies) Fleming Environmental Inc. CAPACITY CLAIMED BY SIGNER(S) ❑ NDNDUAL(S) ❑ CORPORATE OFFICER(S) MILES) ❑ PARTNERS) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY N FACT ❑ TRUSTEEKS) ❑ GUARDIAWCONSERVATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) State of California County of Orange On February 2, 2006 before me, Lynn A. Beimer — Notary Public (DATE) (NAME/TITLE OF OFFICER) Personally appeared Ted Adamson (NAME(S) OF SIGNER($)) XPersonally known to me - OR - LYNN A. # BEIMER 145 Commission # 1456726 TM; Q11MVComm. Notary Pubilc - California Orange County Fires Dec 16, 2007' ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledgement to me that he/she/they executed the same in his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. 1 (SEAL) /, Y/ [ // Sign Lure of Notary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above CAPACITY CLAIMED BY SIGNER'S L❑ INDIVIDUAL(S) OFFICERS(S) r; PARTNEKS) LIMITED rl GENERAL ATTORNEY IN FACT ❑ TRUSTEE(s) r GUARCIAWCONSERVATOR rj OTHER SIGNER IS REPRESENTING: (Name of Person(s) or EntrlyCes) CAPACITY CLAIMED BY SIGNERS) r INDIVIDUAL(S) ❑ CDRPOMTE OFFICER(S) (TITLES) L7 PARTNER(S) [� LRWM (' GENERAL © ATTORNEY IN FACT [j TRUSTEE(S) rl GUARDI4WOONSEI2VATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) ICW GROUP No. 0002059 Power of Attorney Insurance Company of the West Explarer Insurance Company Independence Casualty and Surety Company KNOW ALL MEN BY THESE PRESENTS: That Insurance Company of the West, a Corporation duly organized under the laws of the State of California, Explorer Insurance Company, a Corporation duly organized under the laws of the State of California, and Independence Casualty and Surety Company, a Corporation duly organized under the laws of the State of Texas, (collectively referred to as the "Companies'), do hereby appoint TED ADAMSON, NORMAN PIERCE, RICHARD L. WELLS their true and lawful Attorney(s)-in-Fact with authority to date, execute, sign, seal, and deliver on behalf of the Companies, fidelity and surety bonds, undertakings, and other similar contracts of suretyship, and any related documents. In witness whereof the Companies have caused these presents to be executed by its duly anthorized officers this tat day of November, 2005. EpaYP.1yYQF `��` mac o „3 _OaµSV '�L INSURANCE COMPANY OP THE WEST a e44xrowe. f 7!y u 0` A 4 k EXPLORER INSURANCE COMPANY Fi It,8EAL -itt �j a INDEPENDENCE CASUALTY AND SURETY COMPANY Jeffrey D. Sweeney, Assistant Secretary John L. Hannon, Executive Vice President State of California County of San Diego f ss. On November 1, 2005, before me, Francis Fafaul, Notary Public, personally appeared John L. Harman and Jeffrey D. Sweeney, personally known to me to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument. the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. i� RESOLUTIONS Thfs Power of Attorney is granted and is signed, sealed and notarized with facsimile signatures and seals under authority of the following resolutions adopted by the respective Boards of Directors of each of the Companies: "RESOLVED: That the President, an Executive or Serum Vice President of the Company, together with the Secretary or any Assistant Secretary, are hereby authorized to execute Powers of Attorney appointing the persons) named as Anomey(s) -in -Fact to date, execute, sign, seal, and deliver on behalf of the Company, fidelity and surety bonds, undertakmgs, and other similar contracts of suretyship, and any related documents. RESOLVED FURTHER: That the signatures of the officers snaking the appointment, and the signature of any officer minifying the validity and current status of the appointment, may be facsimile representations of those signatures; and the signature and seat of my notary, and the seal of the Company, may be facsimile representations of those signatures and seats, and such facsimile representations shall have the same force and effect as if manually affixed. The facsimile representations referred to herein may be affixed by stamping, printing, typing, or photocopying.” CERTIFICATE I, the undersigned, Assistant Secretary of Instance Company of the West, Explorer Insurance Company, and Independence Casualty and Surety Company, do hereby certify that the foregoing Power of Attorney is in fall force and effect, and has not been revoked, and that the above resolutions were duly adopted by the respective Boards of Directors of the Companies, and are now in full force. IN WITNESS WHEREOF, I law set my hand this 2 day of February 2006 Jeffrey D. Sweeney, Assistant Secretary To verify the authenticity of this Power of Attorney you may call 1- 800-877 -1 i I 1 and ask for the Surety Division. Please refer to the Power of Attorney Number, the above mined individual(s) and details of the band to which the poweris attached. Far information or filing claims, please contact Surety Claims, ICW Group, 11455 El Camino Real, San Diego, CA 92130 -2045 or call (858) 350 -2400. • This Documen�as electronically recorded by R Cart Mail A RECORDING REQ��BAND WHEN RECD ZJDSo "lYP49Vbg City Clerk City of Newport Bea OFF 'OE OF 3300 Newport Bqy In ERK Newport Beach, C) " s T 6 H Recorded in Official Records, Orange County Tom Daly, Clerk- Recorder 1 1110911M II991tNNNI NO FEE 10051 N121 2006000623718 02:44pm 09/19/06 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 "Exempt from recording fees pursuant to Government Code Section 27383" NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN that the City of Newport Beach, 3300 Newport Boulevard, Newport Beach, California, 92663, as Owner, and Fleming Environmental, Inc. of Buena Park, California, as Contractor, entered into a Contract on January 24, 2006. Said Contract set forth certain improvements, as follows: Balboa Island Bavfront Sidewalk and Drainage Improvements FY05 -06 (C -3796) Work on said Contract was completed on June 26, 2006, and was found to be acceptable on September 12. 2006, by the City Council. Title to said property is vested in the Owner, and the Surety for said Contract is Insurance Company Of The West. certify, under penalty of perjury, that the foregoing is true and correct to the best of my knowledge. Executed on �� �3r ��� at Newport Beach, California. i • • CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK LaVonne M. Harkless, MMC September 13, 2006 Orange County Recorder P. O. Box 238 Santa Ana, CA 92702 RE: Notices of Completion (C -3789 & C -3796) Please record the enclosed documents and return them to the City Clerk's Office. Thank you. Sincerely, LaVonne M. Harkless, MMC City Clerk Encls. 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915 Telephone: (949) 644 -3005 • Fax: (949) 644 -3039 • www.city.newport- beach.ca.us 0 0 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 "Exempt from recording fees pursuant to Government Code Section 27383" NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN that the City of Newport Beach, 3300 Newport Boulevard, Newport Beach, California, 92663, as Owner, and Fleming Environmental, Inc. of Buena Park, California, as Contractor, entered into a Contract on January 24, 2006. Said Contract set forth certain improvements, as follows: Balboa Island Bayfront Sidewalk and Drainage Improvements FY05 -06 (C -3796) Work on said Contract was completed on June 26. 2006, and was found to be acceptable on September 12, 2006, by the City Council. Title to said property is vested in the Owner, and the Surety for said Contract is Insurance Company Of The West. iceW ,Oks Director of NewDort Beach VERIFICA I certify, under penalty of perjury, that the foregoing is true and correct to the best of my knowledge. Executed on �� �3� �Qlo at Newport Beach, California. MA110► CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT C- 3146 P3J/DD -?ab) Agenda Item No. 6 September 12, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Frank Tran 949 - 644 -3340 or ftran @city.newport- beach.ca.us SUBJECT: BALBOA ISLAND BAYFRONT SIDEWALK AND DRAINAGE IMPROVEMENTS FY05 -06 — COMPLETION AND ACCEPTANCE OF CONTRACT NO. 3796 RECOMMENDATIONS: 1. Accept the work. 2. Authorize the City Clerk to file a Notice of Completion. 3. Authorize the City Clerk to release the Labor and Materials bond 35 days after the Notice of Completion has been recorded in accordance with applicable portions of the Civil Code. 4. Release the Faithful Performance Bond 1 year after Council acceptance. DISCUSSION: On January 24, 2006, the City Council authorized the award of the Balboa Island Bayfront Sidewalk and Drainage Improvements project to Fleming Environmental. The contract provided for the construction of new concrete sidewalk and the installation of area drains and 6 -inch diameter PVC drain pipes at selected locations along South Bay Front between Sapphire Avenue and Marine Avenue, West Grand Canal Walkway between Park Avenue and North Bay Front, and entire East Grand Canal Walkway. The contract has now been completed to the satisfaction of the Public Works Department. A summary of the contract cost is as follows: Original bid amount: $382,994.00 Actual amount of bid items constructed: 378,985.58 Total amount of change orders: 5,241.72 Final contract cost: $384,227.30 Balboa Island Saybont Side0land Drainage Improvements FY05 -06 - Completid$d Acceptance of contract No. 3796 September 12, 2006 Page.2 The increase in the amount of actual bid items constructed over the original bid amount resulted from changing Alhambra Foundry drain inlets to Jay R. Smith drain inlets, a better product in the marine environment; One Change Order in the amount of $5,241.72 provided for these inlets. The final overall construction cost including Change Orders was 0.32 percent over the original bid amount. Environmental Review: This'project is categorically exempt from the provisions of CEQA per Section 15301(c), since the project consists to the improvements of existing sidewalk that did not impact any environmental resources. A Notice of Exemption has been filed with the County Clerk. Public Notice: The Notice Inviting Bids was advertised in the City's official publication and in construction industry publications. Affected residents were noticed periodically during the course of the project as necessary. Surveying Services: Surveying services are included within the construction contract. Funding Availability: There are sufficient funds available in the following accounts for the project: Account Description Account Number Amount Tide & Submerged Land 7231- C5100314 $341,094.10 Tide & Submerged Land 7231- C5100835 $43,133.20 Total: $384,227.30 All work was completed on June 26, 2006, the scheduled completion date. Prepared by: Submitted by: FMAL Frank Tran, P.E. ( `'IStep i��j�adum Associate Civil Engineer \ Public W6rks Director 0 1* _ 3� CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 6 January 24, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY FROM: Public Works Department Frank Tran, P.E. 949 - 644 -3311 orftran @city.newport - beach.ca.us SUBJECT: BALBOA ISLAND BAYFRONT REPAIRS — AWARD OF CONTRACT NO. 3796 RECOMMENDATIONS: 1. Approve the plans and specifications. 2. Adopt the Resolution, attached hereto as Exhibit A, rejecting Highland Construction, Inc.'s bid because Highland is a non - responsible bidder. 3. Award Contract No. 3796 to the second low bidder, Fleming Environmental, Inc., for the Total Bid Price of $382,994.00, and authorize the Mayor and the City Clerk to execute the Contract. 4. Establish an amount of $39,006 to cover the cost of unforeseen work. DISCUSSION: At 10:30 a.m.. n November 23, 2005 the City Clerk opened and read the following bids for this projecf`, TOTAL BID AMOUNT $374,975.00 $382,994.00 $393,300.00 $442,000.00 $521,950.00 $523,200.00 $585,600.00 $647,395.00 BIDDER Low Highland Construction, Inc. 2 Fleming Environmental, Inc. 3 Beador Construction Co. 4 Cody Engineering, Inc. 5 Damon Construction, Inc. 6 GCI Construction, Inc. 7 Zusser Company, Inc. 8 Alliance Streetworks, Inc. TOTAL BID AMOUNT $374,975.00 $382,994.00 $393,300.00 $442,000.00 $521,950.00 $523,200.00 $585,600.00 $647,395.00 BALBOA ISLAND BAYFRONT REPAIRS -AWARD OF CONTRACT NO. 3796 • January 24, 2006 Page: 2 The low total bid amount is 6.26 percent below the Engineer's Estimate of $400,000 and . was submitted by Highland Construction, Inc. ( "Highland "). Refection of Highland's Bid. In addition to determining the lowest bidder, staff is required to review the lowest bidders qualifications to determine whether the low bidder is "responsible." Specifically, Charter Section 1110 provides that contracts on public works that exceed Thirty Thousand Dollars ($30,000.00) must be awarded to the lowest "responsible" bidder. In Highland's bid submittal, the only prior project reference cited by Highland was related to work performed for the California Department of Transportation ( "Caltrans "). Staff contacted Caltrans to determine Highland's qualifications and was informed that Caltrans had recently determined that Highland was a non - responsible bidder and rejected its bid for three (3) separate contracts. Specifically, on May 21, 2005, John C. McMillan of Caltrans made a preliminary determination that Highland was a non - responsible bidder. Mr. McMillan also found that Highland "engaged in a consistent pattern of abuse, harassment and intimidation of Department personnel and refused to follow contract procedures for prosecuting the work, resolving claims, and following the chain of command." A copy of the May 21, 2005, correspondence is attached hereto as Exhibit B. On June 6, 2005, a hearing was conducted before Administrative Law Judge William O. i Hoover ( "Judge Hoover') of the Office of Administrative Hearings ( "OAH ") to determine whether Mr. McMillan's preliminary determination should be upheld. After considering the testimony and evidence submitted by Caltrans and Highland, Judge Hoover determined that Highland was a non - responsible bidder ( "OAH Determination ") because: (1) Highland refused to acknowledge the authority of the resident engineer; (2) Highland refused to comply with established procedures for resolving claims and disagreements; (3) Highland and its employees repeatedly threatened Caltrans' employees; (4) Highland demonstrated a lack of trustworthiness essential to the good faith and fair dealings implied in every contract; and (5) Highland's conduct resulted in increased administrative burdens in excess of Caltrans' experiences on similar contracts. A copy of the July 29, 2005 OAH Determination is attached hereto as Exhibit C. The transcript and exhibits from the hearing will be available for review at the City Council meeting. On August 19, 2005, Caltrans determined that Highland was a non - responsible bidder and that its bid for three (3) Caltrans' contracts should be rejected ( "Caltrans' Determination "). A copy of the Caltrans' Determination is attached hereto as Exhibit D. Based on the information obtained by staff, on December 5, 2005 the City notified Highland that it had made a preliminary determination that Highland was a non - responsible bidder. Highland was notified of the evidence in the City's possession that reflected upon Highland's responsibility and was given eleven (11) days to submit any rebuttal or other evidence. • BALBOA ISLAND BAYFRONT REPAIRS - AWARD OF CONTRACT NO. 3796 January 24, 2006 Page: 3 • On December 13, 2005, Highland submitted a letter disputing the preliminary determination and other documents it claimed rebutted the evidence in the City's possession. A copy of Highland's correspondence is attached hereto as Exhibit E. The other documents submitted by Highland will be available at the City Council meeting. After reviewing all of the evidence, staff recommends that the City Council adopt the Resolution rejecting Highland's bid on the basis that Highland is a non - responsible bidder. Specifically, pursuant to Public Contract Code section 1103 a "responsible bidder" is "a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract." In determining what constitutes a responsible bidder, it is clear that the term encompasses far more than technical skill or proficiency. Rather, the City Council must determine whether Highland has also demonstrated attributes of trustworthiness, defined as integrity, ability and good character, quality, fitness and capacity to perform the work. It is staff's opinion that Highland is a non - responsible bidder, as defined by Public Contract Code section 1103, for the following reasons: 1. Caltrans' Determination: All of the references set forth in Highland's bid submittal relate to Caltrans' projects. In the past, Highland has almost exclusively performed work for Caltrans. On August 19, 2005, less than six (6) months ago, Caltrans determined that Highland was non - responsible and rejected its bid for three (3) separate contracts. Given that: (a) Highland has not provided the City with other references besides Caltrans; (b) Highland has performed almost all of its work exclusively for Caltrans; (c) Caltrans has recently determined that Highland is non - responsible; and (d) no evidence has been presented which shows that Highland is now a responsible bidder, the City should reject Highland's bid because Highland is a non - responsible bidder. 2. OAH Determination: On July 29, 2005, Judge Hoover upheld Caltrans' preliminary determination that Highland was a non - responsible bidder. In making this determination, Judge Hoover considered the testimony of Highland's officers and employees, declarations from Caltrans' employees, and numerous exhibits. In staffs opinion, the City Council should find Highland is a non - responsible bidder and reject its bid because an independent third party determined less than six (6) months ago that Highland was a non - responsible bidder and no new facts have been presented which would alter that determination. 3. City's Zero Tolerance Policv: The City has a "Zero Tolerance" anti- violence policy when it comes to violence in the workplace. Violence, of course, includes verbal abuse as well as physical assaults. Based on the record, staff has determined that Highland has a long history of allowing its officers and /or employees to verbally abuse and intimidate Caltrans' employees. For example, based on the record, staff has determined that: (a) on or about October 2, 1998, Mr. Mike Ahmadi, who is listed in the bid as the person who inspected the site and who was determined by Judge Hoover to be the owner of Highland, told Caltrans' employees that sometimes he would become so frustrated that he wished he could take a machine gun and wipe out all of Caltrans; (b) on or about February 4, 2002, Mr. Mike BALBOA ISLAND BAYFRONT REPAIRS - AWARD OF CONTRACT NO. 3796 • January 24, 2006 Page: 4 Ahmadi called Mr. Richard Joludow, of Caltrans' a jackass; (c) in the Spring of 2002, Mr. . Mike Ahmadi yelled and used profanities at Ms. Nahid Baghbanian of Caltrans' while she was having lunch with friends and has admitted that he told her "you think you are tough shit" at the lunch; (d) on September 13, 2004, Mr. Mike Ahmadi used curse words, was abusive and intimidating during a meeting; (e) during August 2004, Mr. Mike Ahmadi was removed from a project because of his behavior; (f) during a meeting on or about September 20, 2004, Mr. Mike Ahmadi informed Mr. Kevin Tran of Caltrans' that "[ijf you smile again, I'll kick your ass out of this office;" (g) on September 30, 2004, Scott McKenzie removed Mike Ahmadi from a project due to his violent behavior on September 13, 2004; and (h) on April 5, 2005, Kristi Stelle of Highland, wrote a letter to Tony Harris of Caltrans' accusing Bob Pieplow and the likes of him of criminal behavior and as being ignorant and incompetent. Mr. Mike Ahmadi does not see anything wrong with calling people names or using profanity. At the hearing before Judge Hoover, Mr. Mike Ahmadi stated that there was nothing wrong with calling people ruthless and incompetent. While some use of profanity may be used in the construction industry, Mr. Mike Ahmadi uses profanity to intimidate and verbally threaten employees. Throughout the OAH Hearing, Mike Ahmadi was unapologetic for his behavior and there is no indication in the submitted material that Mike Ahmadi or Highland will change its business practices in the near future. In fact, in Highland's December 13,,2005, correspondence, Highland claims that Mike Ahmadi actions are justified by Caltrans' behavior. In staff's opinion, the foregoing pattern of behavior justifies a finding of non - responsibility. Further, to maintain a non - hostile work environment and to protect its employees, staff recommends not awarding the contract to Highland. 4. Non - Responsible: In addition to the foregoing, it is staff's opinion that Highland is non - responsible because Highland's conduct has resulted in increased administrative burdens to owners of projects that have hired Highland. The Caltrans' employees who have worked with Highland have noted in their declarations that Highland has a history of requiring a disproportional amount of Caltrans' management resources resulting in increased administrative burdens to owners of projects that have hired Highland. Further, Highland has a history of refusing to acknowledge the authority of the owner's representatives and employees on projects which Highland has worked. For example, Mr. Kausi Amuthasakaran noted in his declaration that on one occasion Highland directly disobeyed the direction of the resident engineer thereby creating an unsafe roadway condition that was prolonged for months by their refusal to follow the resident engineer's direction to remedy the situation. Similarly, Mr. Ken Bocchicchio has stated that Highland routinely bypassed the resident engineer and contacted Mr. Bocchicchio without giving the resident engineer an opportunity to address the question or concern. Additionally, Highland does not comply with established procedures for resolving claims and disagreements. For example, in Peter Chan's declaration he states that Highland frequently engages in letter campaigns to falsely present the facts of disputes to the Governor's office and ignores established contract dispute /claim administration processes. In John Hancock's declaration, he states that when he asked Ms. Kristi 0 BALBOA ISLAND BAYFRONT REP* -AWARD OF CONTRACT NO. 3796 January 24, 2006 Page: 5 Stelle of Highland if she complied with the claims requirements set forth in the contract, she stated that the contract was "just a guideline" and not something to be followed. 5. Work Experience Finally, given that Highland has performed primarily Caltrans' projects which are predominantly freeway projects, staff feels that Highland does not have sufficient experience in dense residential environments such as Balboa Island. The nature of the proposed work requires special knowledge of close quarters construction and phasing. The project also requires extensive coordination with the residents and staff to successfully complete the work. Highland's work experience does not indicate any experience in these areas of expertise. Award of Contract to Second Lowest Bidder. The second low bid amount is 4.25 percent below the Engineer's Estimate. The second low bidder, Fleming Environmental, Inc. ( "Fleming "), possesses a California State Contractor's License Classification A as required by the project specifications. Fleming has satisfactorily completed a bayfront repair project for the City. Therefore, staff is now recommending that the City award the project to the second low bidder, Fleming. This project consists of construction of new concrete sidewalk and the installation of area drains and 6 -inch diameter PVC drain pipes at selected locations along South Bay Front between Sapphire Avenue and Marine Avenue, West Grand Canal Walkway between Park Avenue and North Bay Front, and entire East Grand Canal Walkway. Surface drainage will be designed to drain toward the public bulkhead and will convey the surface runoff for below grade discharge into the nearby street end catch basins. The deteriorated sidewalk panels at North Bay Front between Marine Avenue and West Grand Canal will also be removed and reconstructed. During construction, in order to provide adequate curing time to support pedestrian traffic, the sidewalk at construction areas will be closed for a few hours until they are ready for public use. Pedestrians will be detoured to the nearby alleys and sidewalks during these closures. Per the Contract Specifications, the Contractor will have 50 consecutive working days to complete the work. The construction will be scheduled to start on February 13, 2006. Environmental Review: This project is categorically exempt from the provisions of CEQA per Section 15301(c), since the project consists to the improvements of existing sidewalk that did not impact any environmental resources. A Notice of Exemption has been filed with the County Clerk. 0 BALBOA ISLAND BAYFRONT REPAIR? AWARD OF CONTRACT NO. 3796 • January 24, 2006 Page: 6 Public Notice: The Notice Inviting Bids was advertised in the City's official publication and in construction industry publications. Affected residents will be noticed periodically during the course of the project as necessary. Surveying Services: Surveying services are included within the construction contract. Funding Availability: There are sufficient funds available in the following accounts for the project: Account Description Tide & Submerged Land Tide & Submerged Land Prepared by: r Frank Tran, P.E., Associate Civil Engineer Account Number Amount 7231- C5100314 $382,850.00 7231- C5100835 $39,150.00 Total: $422,000.00 Submitted by: G. Badum, orks Director c- Attachments: Exhibit A - Resolution Exhibit B - Caltrans' letter dated May 21, 2005 Exhibit C - OAH Determination Exhibit D - Caltrans' Determination Exhibit E - Highland letter dated December 13, 2005 Exhibit F - Project Location Map Exhibit G - Bid Summary 0 • • RESOLUTION NO. 2006- _ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REJECTING HIGHLAND CONSTRUCTION, INC.'S BID FOR CONTRACT NO. 3796 BECAUSE HIGHLAND IS A NON - RESPONSIBLE BIDDER AND AUTHORIZING THE MAYOR AND CITY CLERK TO ENTER INTO AN AGREEMENT WITH FLEMING ENVIRONMENTAL, INC., FOR CONTRACT NO. 3796 WHEREAS, on November 23, 2005, the City Clerk opened and read the bids for the Balboa Island Bayfront Repairs, Contract No. 3796 ( "Contract "); WHEREAS, the low bid was submitted by Highland Construction, Inc. ( "Highland "); WHEREAS, Charter Section 1110 provides that contracts on public works that exceed Thirty Thousand Dollars ($30,000.00) must be awarded to the lowest responsible bidder; WHEREAS, Public Contract Code Section 1103 defines a "responsible bidder" as 40 "a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract;" WHEREAS, in assessing whether Highland's bid for the Contract should be rejected on the basis that Highland is a non - responsible bidder, the City obtained the following documents, without limitation, which have been provided for review to the City Council and are deemed to be incorporated into the Administrative Record relating hereto: 1. Letter of John C. McMillan to Highland dated March 21, 2005; 2. Letter of Mike Ahmadi to John McMillan dated March 29, 1995; 3. Reporter's Transcript of Proceedings dated June 5, 2005; so • • 4. Binders 1 through 3, Bates Stamp Numbers CT HC 00001 — CT HC 01342 submitted by the California Department of Transportation at the Office of Administrative Hearings ( "OAH ") proceeding on June 5, 2005; 5. Binders 4 through 6 submitted by Highland at the OAH Hearing on June 5, 2005; 6. Letter of Bradley A. Raisin to Judge William O. Hoover; Closing Brief of Highland; Declaration of Mike Ahmadi; Declaration of Kristi Stelle; Declaration of Earl Fukomoto and Declaration of Craig A. Sorensen, and supporting documents all submitted to the OAH on or about June 13, 2005; 7. OAH Decision of Judge William O. Hoover dated July 29, 1995; 8. Letter of John C. McMillan to Highland dated August 19, 2005; 9. Determination of Bidder's Responsibility and Findings for Award of Contracts No. 07- 1661A -4, 07- 4J2704 and 11- 266404 of Mark Leja dated August 19, 2005; 10. Petition for Writ of Mandate dated August 31, 2005; 11. Bid submittal of Highland dated November 23, 2005; 12. Letter of Bill Patapoff to David Ahmadi dated December 5, 2005; 13. Letter of Kristi Stelle to Aaron C. Harp dated December 13, 2005; and 14. Employee Policy Manual "Zero Tolerance" policy. -2- 0 0 0 WHEREAS, all of the information provided by Highland and Caltrans including, 0 without limitation, the bid, transactional documents, correspondence, briefs, declarations and other information provided to the City and retained in the files of the City, its attorneys and /or consultants, is hereby incorporated by reference into the Administrative Record and is available upon request; and WHEREAS, the City has determined that Highland's bid for the Contract should be rejected because Highland is a non - responsible bidder and the Contract should be awarded to Fleming Environmental, Inc. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: Highland's bid for the Contract is hereby rejected because Highland is a non - responsible bidder, as defined by Public Contract Code section 1103, for the following reasons: A. On August 19, 2005, Caltrans determined that Highland is a non- responsible bidder and rejected its bids for three separate contracts. B. On July 29, 2005, the Honorable William O. Hoover of the OAH determined that Caltrans' preliminary determination that Highland was a non - responsible bidder should be upheld. C. The only prior references submitted by Highland as part of Highland's bid submittal for the Contract related to projects performed for Caltrans who has determined that Highland is a non - responsible bidder. -3- E • • • D. The City has a "Zero Tolerance' anti - violence policy when it comes to violence in the workplace and Highland has shown a history of allowing its officers and /or employees who have routinely verbally abused and intimidated Caltrans' employees. E. Highland's conduct has resulted in increased administrative burdens to owners of projects that have hired Highland. F. Highland has a history of refusing to acknowledge the authority of the owner's representatives and employees on projects which Highland has worked. G. Highland does not comply with established procedures for resolving claims and disagreements. H. The Project entails replacement of sidewalk and drains along Balboa Island walkway located in a residential neighborhood with access along narrow streets and alleys. The Project will have to be accomplished in close quarters between the residential property and a beach front bulkhead and will require the contractor to perform the work in cooperation with residents and visitors to the area. Highland's only references are for work with Caltrans and Highland has not performed work in areas with similar space and location limitations. Highland has not submitted evidence that it has become a responsible bidder since it was found to be a non - responsible bidder by Caltrans and /or Judge Hoover. Section 2: projects. • This Resolution shall not prohibit Highland from bidding on future ED Section 3: The Contract shall be awarded to the second low bidder, Fleming Environmental, Inc. and the Mayor and City Clerk are hereby authorized to execute the Contract. Section 4: This Resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the Resolution. ADOPTED this day of 2006. Don Webb, Mayor ATTEST: 0 LaVonne Harkless, City Clerk • • -5- March 21, 2005'' VIA FACSIMILE (714) -538 -5157 Highland Construction, Inc. 133 North Pixley Street. Orange, CA 92868 Dear Mr. Ahmadi: This is to advise you that the Department has . determined that Highland Construction C'Highland") is not a responsible bidder and is therefore ineligible for award of Contract 07 -1661 A4. If Highland accepts this determination, then the determination of non - responsibility is final.as to this contract. If Highland wishes to refute this determination, it is entitled to submit written evidence in rebuttal to try and establish that it is a responsible bidder. The Department will then meet with Highland to go over the evidence presented and hear any statement Highland wishes to make'to try and establish its responsibility. This meeting will be conducted before an Administrative Law Judge C' Judge') in Sacramento on a date to.be determined after receipt of your response. The proceedings will last one day and will be recorded. All of the evidence prepared by the Department and by Highland will be submitted to the Judge prior to that meeting., The Judge will consider the evidence presented by both parties and make a recommendation to the Chief Engineer, or his designee, as to whether Highland is a responsible bidder. The Chief Engineer will then consider the Judge's recommendation along with all the evidence provided by the parties and decide whether or not Highland is responsible and eli gible for . award of this contract. His decision will be the Department's final determination on this issue. Please advise the Department in writing by. March 28, 2005, as to whether or not you wish to submit evidence and meet with the Department before a Judge to rebut the Department's determination.. that Highland is non - responsible. If Highland elects to submit evidence and attend a meeting before a Judge to try and rebut the determination of non - responsibility, Highland must submit its complete written response, including supporting documentation, if any, to the Department no later than Apri1.189 2005; "Calwant bnpravei mobility acmes Caltfarnia" CT HC 0000 1: STATE OF('AI,aiJRNIA— BUSRlliss TRANSPORTATION AND HOUSING AOWCY ARNOLD SCHwARMMQQBR Gateenm DEPARTMENT OF TRANSPORTATION DIVISION OF ENGINEERING SERVICES OFFICE ENGINEER, MS 43 1727 30" STREET P.O. BOX 168041 ' Flesymrpower! . SACRAMENTO, CA 95816 -8041 He energy egiclent.+" PHONE (016)227-6300. 'FAX._(9 t6) 227 -6151 ` -- TTY (916)227.845A March 21, 2005'' VIA FACSIMILE (714) -538 -5157 Highland Construction, Inc. 133 North Pixley Street. Orange, CA 92868 Dear Mr. Ahmadi: This is to advise you that the Department has . determined that Highland Construction C'Highland") is not a responsible bidder and is therefore ineligible for award of Contract 07 -1661 A4. If Highland accepts this determination, then the determination of non - responsibility is final.as to this contract. If Highland wishes to refute this determination, it is entitled to submit written evidence in rebuttal to try and establish that it is a responsible bidder. The Department will then meet with Highland to go over the evidence presented and hear any statement Highland wishes to make'to try and establish its responsibility. This meeting will be conducted before an Administrative Law Judge C' Judge') in Sacramento on a date to.be determined after receipt of your response. The proceedings will last one day and will be recorded. All of the evidence prepared by the Department and by Highland will be submitted to the Judge prior to that meeting., The Judge will consider the evidence presented by both parties and make a recommendation to the Chief Engineer, or his designee, as to whether Highland is a responsible bidder. The Chief Engineer will then consider the Judge's recommendation along with all the evidence provided by the parties and decide whether or not Highland is responsible and eli gible for . award of this contract. His decision will be the Department's final determination on this issue. Please advise the Department in writing by. March 28, 2005, as to whether or not you wish to submit evidence and meet with the Department before a Judge to rebut the Department's determination.. that Highland is non - responsible. If Highland elects to submit evidence and attend a meeting before a Judge to try and rebut the determination of non - responsibility, Highland must submit its complete written response, including supporting documentation, if any, to the Department no later than Apri1.189 2005; "Calwant bnpravei mobility acmes Caltfarnia" CT HC 0000 1: L 0 0 • Highland Construction, Inc. March 21,.2005 Page 2 I. Highland's -bid currently expires on March 25, 2005.. If Highland elects to proceed with a responsibility meeting, it will. be necessary for Highland to extend its bid. Highland will receive a request for the bid extension by separate letter. BASIS FOR DETERNEWATION 1. Standard The Department is required by law to award public works contracts to the lowest, responsible bidder. A "responsible bidder" is one who "has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract" Public Contract Code §1103. .The.Legislature found this definition to be declaratory of -existing law and that establishing a system to evaluate the "ability, competency and integrity of bidders :oil public works projects" would be in the public interest and would result in project of the "highest quality for the lowest costs." Stats.1999, Ch. 972.. ".Responsibility" requires a demonstration of trustworthiness.. Id. . '"Trustworth y ". is defined as "worthy of confidence, dependable." Websters 9`h Collegiate. An "attribute of trustworthiness" includes reliability and is essential.to the good faith and. fair dealing required in every contract.. 2. Prior communication regarding Highland's responsibility. Highland was the lowest monetary bidder for contract 07- 1661A4. On February 11, 2005, the Department sent a letter to Highland advising that the Department questioned whether Highland was a "responsible bidder in light of incidents on recent contracts in Districts 7 and 12. In its letter, the Department. relied on findi'ags that Highland's key representative, Mike AhmadL behaved in a disorderly and improper manner :.which recently resulted in his removal from the work on Contract 07- 4111104 and Contract 12- OC2404. The letter noted that after his removal from the work, Highland did not respond to requests'to designate an authorized representative to act as superintendent on these projects. Furthermore, on Contract 12- OC2404, Highland failed to prosecute the work and failed to secure the project. as required by the contract. Finally, the contractor failed to follow dispute resolution procedures established in the contract. On February 15, 2005, Highland responded.that it had completed numerous' contracts for the Department.iti less than the allotted time. Highland also acknowledged it had problems on Contracts 074Hi 104 and 12- OC2404 as well as Contract 07- 458904 which was not mentioned. in the Depamnent's letter.' Highland then. stated that the "issues" on these three contracts were due to design errors, lack of experienced Department personnel and the Department's "refusal" to write change orders and make payments. Highland then stated that (1) neither Highland nor its employees had ever threatened Department employees, (2) Highland always prosecuted the work in accordance with contract provisions, (3) no project ever lacked a superintendent and (4) Highland always used "Calvaru improvre niabiliry arrow Calefomia" CT HC 00002 0 • Highland Construction, Inc. March 21, 2005 Page 3 . dispute resolutions established in the contract: Highland also listed Department personnel who would allegedly attest to Highland's "experience, integrity and professionalism." 3. Investigation and Record Upon receipt of highland's February 15 response, the Department undertook further investigations and collected additional information, a copy of which will be sent to you under separate cover due to the volume of materials. The Department has relied on all of the doe .uments. and declarations collected in this matter (the "record") in reaching its determination of non - responsibility. ' Since this record is too.large to discuss in detail, we have highlighted certain incidents and correspondence which are particularly egregious examples of Highland's actions. However, material not .specifically mentioned :herein was still 'considered. In any proceedingbn Highland's responsibility, the Department reserves the-right to, and will; go over other documents in the record even though. they have not been mentioned in this letter: We also direct your attention to Exhibit A, attached hereto, which summarizes pertinent, . pails of the record. That exhibit identifies certain documents in the record and includes a reference number for each document which is listed in the farthest left -hand column of the Exhibit. Citations to "Ref. No." in this letter refer to those reference numbers fisted in Exhibit A. 4. Companies owned by Mike Ahmadi. Highland Construction, Inc. (Highland) and M. Ahmadi Construction. & Engineering Company (MACE) are both 'owned. and operated by Mike Ahmadi. Mr. Ahmadi also frequently sets' as the representative at the work site for these two companies as well as its representative in dispute resolution :meeting with the Department. Both companies also employ Kristi,. Stelle. The Department considered information about both of these companies in assessing Highland's responsibility for award of this contract. The findings discussed herein are equally applicable to Highland and'to MACE. S. Contracts awarded to companies owned by Mike Ahmadi. The Department's recoils show that since May 2001, the .Department has awarded a total of eleven major construction contracts to Highland or MACE. This number does not include contracts valued at less than $120,000 which are commonly referred to as "Minor B" contracts. "C.altrans improves inability across California" 0 CT HC 00003 Highland Construction, Inc. March 21, 2005 Page 4 As summarized in the table below,.eight of these major contracts have been awarded in. the past year. At the time of award, the Department estimated that eight of the contracts would be completed in 100, working days or less. Highland bid nine of the contracts at less than $650,000. Most of the projects awarded to Highland have been relatively small projects. . Upon receipt of highland's February 15 letter, the Department reviewed the files for each project and/or discussed the project.with Department personnel who had been assigned to work on them. Based on its document review and employee interviews, the Department reached the conclusions. described below. FINDINGS The record shows that Highland consistently abuses, harasses, threatens and 'intimidates Department employees and ignores contract requirements. A review of the project.files indicate that on eight of the eleven contracts awarded to Highland/MACE since 2001, Highland engaged. in a consistent pattern of abuse, harassmcnt. and intimidation of the Department's employees and has refused to follow contract procedures for prosecuting the work, resolving claims, and following the chain of command. ' A. Highland does not prosecute the work in accord with the provisions of the contract and was untruthful in its Ietter of February 15, 2005 when it claimed otherwise. All of the Department's construction contracts consist of plans, Standard Specifications, Special Provisions and the contractor's bid p rice. This is clear from a reading of Standard Specification 1 -1.09 which defines the "contract" as the "written agreement covering the performance of the work" and that the "contract shall include... plans specifications, i. This column notes which of Mr. Ahmadi's companies was awarded the contract. "HL" refers to Highland Construction and "MACE" to M. Ahmadi Construction. "Caitrans improves inability across C'Jift nia" CT HC 00004 Dist. EA . Award Date. Bid Amount. Work' Description CO t Est. WDs 1 '07 458904 518101 500,325. Replace Portland concrete MACE 70 2 07 4H2804 5110101 646,795 Construct, install, modify drain MACE 60 3 07 020474 10/03/02 2,055,139 Soundwalls MACE_ 280 4 07 4H1004 5104/04 420,250 Repair edge drain HL 190 5 07 4H1104 5113/04 208;070. Constmet masonry wall. HL 120 6 12 OC2404 5/14104 405,445 Resurface hiehwav HL 40 7 07 2N8104 5/18/04 1 144,480 Construct approach slab - HL 90 8 08 OA4004 7/15104 190;960 Replace joint seal assembl HL 90 9 1 08 1 438114 8131/04 f 484,890 Reali to create T intersection I HL 100' 10 108 . 1 - 1A2104 9029/04- 344,840; Replace aluminum joint seals. HL 80 11 1 12 1 OH0024 09/29/04 1 1,529,830. Resurface existing highway HL 30 Upon receipt of highland's February 15 letter, the Department reviewed the files for each project and/or discussed the project.with Department personnel who had been assigned to work on them. Based on its document review and employee interviews, the Department reached the conclusions. described below. FINDINGS The record shows that Highland consistently abuses, harasses, threatens and 'intimidates Department employees and ignores contract requirements. A review of the project.files indicate that on eight of the eleven contracts awarded to Highland/MACE since 2001, Highland engaged. in a consistent pattern of abuse, harassmcnt. and intimidation of the Department's employees and has refused to follow contract procedures for prosecuting the work, resolving claims, and following the chain of command. ' A. Highland does not prosecute the work in accord with the provisions of the contract and was untruthful in its Ietter of February 15, 2005 when it claimed otherwise. All of the Department's construction contracts consist of plans, Standard Specifications, Special Provisions and the contractor's bid p rice. This is clear from a reading of Standard Specification 1 -1.09 which defines the "contract" as the "written agreement covering the performance of the work" and that the "contract shall include... plans specifications, i. This column notes which of Mr. Ahmadi's companies was awarded the contract. "HL" refers to Highland Construction and "MACE" to M. Ahmadi Construction. "Caitrans improves inability across C'Jift nia" CT HC 00004 0 0 Highland Construction, Inc. March 21, 2005 Page 5 special provisions..:'.. The contract indisputably includes the Standard Specifications. Nevertheless,. Highland has advised Department staff that Standard Specifications are not part of the contract but are merely guidelines. See Declaration of John Hancock. ' Highland's view, that the Standard Specifications are merely advisory, is.clearly reflected in its behavior. Highland routinely ignores and refuses to acknowledge or comply with contract requirements: 1. Refusing to acknowledge the authority of the Resident Engineer. For instance, the Specifications state that the Engineer has authority over the project. (Std. Spec. 5-101; "Authority: of the Engineer"). .However, Highland and its representatives routinely ignore the Resident Engineer ("RE'.) and seek to discuss issues,_ problems and claims .with the RE's management without first discussing them with the RE.. For example, see Declarations of Nahid Baghbanian, `pars 7 -9; Ken Bocciechio, para.?; Scott.McKeniie; para. 7 and Kausi Amuth; para 8 and 9. A good example of highland's refusal to acknowledge the RE has any authority is found in the correspondence for Contract 07- 4H1004. Highland advised the RE that utility lines were in its, way, and they would not be responsible for damage,to said lines, The RE advised they were responsible for any damage to the lines, but should be able to work around. them:. After several exchanges on this. issue; Highland ' claimed they were concerned for the safety of th eir' workers. Tliereafter, the RE. postponed a pre- construction meeting to look into the issue. 'Highland refused to accept the meeting was postponed, showed up anyway and insisted it take, place. Subsequently, Mike .Ahmadi and Kristi Stelle of Highland authored a barrage of letters about this cancelled meeting insisting it was not up to the Department to decide whether a meeting could be postponed. [See Contract 07- 4H1004 correspondence .. May - June]. I. Refusing to' comply with .contract requirements for resolving claims and disagreements. The Standard ..Specifications set forth thel process for paying for extra work not originally included in the work and also the process for settling claims that anise due to disagreement about whether work is extra or not. See Std: Spec. 4 -1.03, 4- 1.03A, 4- 1.03D: After working on eleven contract's, Highland is well aware of these requirements which have been repeatedly pointed out to them by Department employees. However, Highland shows continuing disregard for these requirements. Highland regularly demands payment for work it considers extra and threatens to halt work, refuses to perform specific work it considers extra and often insists on payment for all outstanding claims before it will agree to continue performance of the contract "C.U.&, bvww es maGiiiry ar.r&.T Cialfamia" CT HC 00005 is Highland Construction, Inc. March 21, 2005 Page 6 At all. Highland has even demobilized and left the project before acceptance. See Declaration of Kausi Amuth and Exh. A, Ref. Nos. 8 and 10. The following paragraphs are just a few examples from the record of $ighland.'s refusal" to comply with contract provisions and prosecute the work in accord with contract requirements. a. Contract 12- OC2404. In May 2004, Highland was awarded Contract 12- OC2404 for $465,000. Shortly after award, it became clear this project could not be constructed as designed.: When the Department did not% accept the solution proposed by .Mike Ahmadi, he became abusive, insulting and slanderous. He refused to continue working until he was paid. what he thought be was. due. Subsequently lie was removed from the work. Shortly thereafter, the contract was terminated per Standard Specification 8 -111, "Termination of Contract Upon termination, the contractor is still subject to 'certain requirements, including that he secure . the project before demobilizing and dispose of unused material as directed by the RE. After termination of. this. contract, Highland.refused to complete the work as required by Std. Spec. "8 -1..11 in direct violation .of the contract requirements. [See Exh. A, Ref. No. 13, better from Highland. to Pieplow, "Be advised if these issues, including the overhead, are not resolved shortly and amicably; we will demobilize and slap Caltrans with the biggest lawsuit ever." ; and Ref. No. 20, Letter from Highland to Baniheshemi, "But of 'course, in the screwy world of Chris Mokus' Caltrans, the removal of "debris is more important than the lives and safety±300,000 daily commuters! What a shame! "] b. Contact 08- 438114: In August 2004, the Department awarded Highland Contract 08- 438114 for $385,000. The Special Provisions of the contract clearly stated that a Storm: Water Pollution Prevention Plan (SWPPP) was required for this contract and that it. must be approved by the Department before work could begin.. Highland ".argued no SWPPP was needed. The Pt ordered one be 'submitted. Highland refused and the argument extended over several weeks. This is reflected in the files And the. sworn testimony of Fred Khosrowabadi. See Declaration of Fred Khosrowabadi.' Mr. Khosrowabadi was one of the Department. employees listed by Highland as a reference. Highland also advised the Department that since the Department had failed to resolve "numerous issues" on the project, Highland had "cancelled all work for the above- mentioned project." [See Exh A, 'Ref. No. 28, Letter from Highland to Khosrowabadi] "Caltmns iatffWes mobility across Califomia" CT HC 00006 LI Highland Construction, Inc.. March 21, 2005. Page 7 c. Contract 12- OH0024:. In September 2004, the Department awarded Highland. Contract 12- OH0024 for $1,529,830. Highland ignored the Resident Engineer's directions.. Highland routinely refused to comply with the Department's' requests to clarify orcorrect submittals. See Declaration Kausi Amuth. When Highland ' disagreed with the Resident Engineer about whether work was included or was extra, Highland did not follow the order of the Resident Engineer to complete the . work and file a claim'later. [See letter from Arnuth to Highland dated Nov: 18, 2004]. Instead, Highland demobilized and left the work mi an unsafe condition before the project was completed. [See Exh.A, Ref. No: 8- and Declaration of Kausi Amuth.] This was the most serious example of Highland's refusal to prosecute the work in accord with the contract requirements:.. Kausi Amuth was the Resident Engineer for this project and provided 'a sworn declaration in support of these.facts. The Department notes that Mr. Amuth is one of the persons Highland lists as a reference in its February.l5a` 2005 letter. d. Even in its February 15, 2004. letter respondi. g, to the'Department's concerns regarding Highland's responsibility, Highland alleges problems with the Department employees. and then states that "Upon our insistence to be paid for the work performed and/or the appropriate Change Orders be processed before We start work on additional work that was not part of the original contract,..." (emphasis added]. (See Feb. 15, 2005 . Letter, Highland to McMillan; page 2), . This statement is itself evidence that Highland intentionally fails to follow contract procedures. As described above, the. contract does not .permit a contractor. to "insist". on being paid before doing work ordered by the Resident, Engineer. See also Declaration of Peter Chan. Given the number of contracts awarded to Highland, it-is well aware that this behavior breaches the contract: B. Highland and its employees have repeatedly threatened Department employees and Highland misrepresented that fact in.its letter of Feburary 15, 2005. In its letter of February 15, 2005, Highland claimed that none of its employees had ever threatened Department employees. The Department considered this an especially important consideration and investigated that statement. The Department has concluded that Highland's claim is untrue. The Department's employees are subject to the attached Department's policy on "Workplace Violence" (Director's Policy. DP =18, effective May 1, 1998) which "Cal,rmis lmpmves ambiiity across Carybmia- CT HC 00007 J 0 0 Highland Construction, Inc. March 21, 2005 . Page 8 . emphasizes that the Department is to protect its employees and has zero tolerance for threats, violence, harassrrient, and intimidation.. The policy. defines intimidating. behaviors to include shouting, slamming doors, and throwing objects. While the Department is only authorized to take action against its own employees who engage in ` such behavior, the Department obviously also has an interest in protecting its employees. For this reason, the policy requires that Department employees report suspicious behavior and actions by non - employees (including assaultive talking, belligerent, intimidating and threatening behavior) .to' their supervisors, California Highway Patrol or, others: Employees have complied with the policy directive and reported Highlaind's behavior to their supervisors. Mr. Ahmadi has been physically threatening in several instances as described in the following paragraphs. a. Contract 12- 040504: lirOctober 1998, Mike Ahmadi met with Department employees James Roldan, Lee Haber, Ken Bui and Tran Dang to .discuss contract change orders . for Contract 12- 040504. During. the meeting, as throughout the pendency of the project; Mike Amadi displayed anger. At one point, he stated that he wished he could "machine gun ". down Caltrans employees. The Department participants found this statement threatening and worrisome, James Roldan, who is no longer. employed with the Department; documented the incident at the time in a transmittal to his supervisor. (See Declaration of Lee Haber and attached e-mail; Declaration of Ken Bui; Declaration of Tran Dang and R6. A, Ref. No. 43).. b. Minor B Contract 12- 12AO695: In spring 2001, the Department awarded Highland a Minor B contract. Throughout the project, Mike Ahmadi exhibited unprofessional, angry, insulting and abusive behavior to the Department's employees. After. the project was completed, in Spring 2002, Mike Ahmadi encotintered the Senior . Engineer who had supervised the Resident Engineer on the project. At a restaurant, he publicly insulted her and called her names causing her to feel threatened enough. that she and.her friends felt compelled to leave the restaurant to get away from him. She reported the incident to her supervisors and the police .were contacted. (See Declaration of Nahid Baghb'anian and Exh. A, Ref. No's 44.47). c. Contract 0741;1104: In May 2004, the Department awarded Contract 07AH1104 to Highland. During the. project Mike Ahmadi continued his pattern and practice of insulting .and' abusing the Department's employees. During a meeting on September 13, 2004 to discuss the project, Mike Ahmadi became so abusive that the Department's representatives sought to, terminate the in Thereafter, Mike Ahmadi physically approached the. Department manager :so closely that he raised a tablet in front of his face to preserve some distance. He felt threatened enough to request the police be called and reported the incident to his supervisor. (See "Caftra rimprove mobility a cross Ca4farnfa" CT HC 00008 F Flighland Construction, Inc. March 21, 2005 . page 9 Declarations of Om Garg, Kelvin Tran and Scott McKenzie and Exh. A Ref. No. 21).x` Subsequently, on September 20, 2004, another meeting was held with Mike Alimadi to advise him that his behavior during the. September 13 meeting would, not be tolerated and he would be removed from the work if he continued to engage in such unacceptable behavior. During the course of the meeting, Mike Ahmadi turned to one of the Department's employees and stated that if the employee smiled again, Ahmadi . "would kick his ass." (See Declaration of Kelvin Tran, paragraph 6).. Mike Ahmadi was removed from the work shortly thereafter. The Department finds that Highland . representatives have indeed threatened Department employees, physically: and otherwise, and moreover that Highland lied about that fact in its letter of February 15 when it claimed it had never done so. ' C. Highland habitually displays a lack -of trustworthiness essential to good. faith and fair deating implied in every contract: A review of. the record shows that multiple Department employees in different districts working on various projects have had to terminate calls and.meetings with Mike A.hmadi due.to his insults, shouting and langer. Managers have repeatedly become; involved in trying to address this behavior. In each case, Highland consistently alleges that all Department employees at all levels of staff .and management in all Districts are incompetent, inexperienced, unintelligent and lacking in expertise. In its correspondence and its personal dealings with Department employees, Highland routinely engages.. in name - calling, insults, inappropriate displays of. anger, and intimidation.;- Highland does not hesitate .to denigrate and question the integrity, of any Department employee who disagrees with Highland's demands. Neither does it hesitate to make its allegations to all levels of management within and outside the Department. In accord with the Department's "Workplace Violence" policy, multiple employees have reported assaultive talking, abuse, cursing, foul language and intimidating and threatening behavior as evidenced in the examples below. a. Contract 07- 020474: In October 2002, MACE was awarded Contract 07- 020474 for $2,055,139. Throughout this project,. Mike. Ahmadi consistently abused the. Structures Representative, Lawrence Okoye and the Resident Engineer, Ben Ghafghazi. During a. meeting in November 2002, between Highland and Department representatives Mike Ahmadi became angry, rude, insulting and intimidating. The Resident Engineer advised him that if he did not behave he would be-removed from the work. Mr. Ahmadi claimed he could not be removed because he owned the company. (See Exb. A, Ref. No. 28). "Caltrans bnpwvrr n,obiltty arras, Calvomia" u CT HC 00009: Highland Construction, Inc. March 21, 2045 ., Page 10 Thereafter on January 27, 2003, the Resident Engineer . sent a. letter to .Highland .. detailing further instances of insulting conduct and advising he would. be removed if . the behavior did not stop. (See Exh: A, Ref: No. 34. Letter. from RE to Highland detailing abuse and threatening to remove Ahmadi from the work;. Ref..No; 3$, Ltr from Highland to Departmi t referring to Mr: Okoye; 1,He thinks he is Kiug..'Zulu', . and this is a third world Country and he can do anything he wants." ; .Ref No. 31, "He' flew into another one of his cussing rage,.I ended the conversation with civility.'; Ref.,No. 41, Doug Failing; Director District 7 to Highland "Unless you are willing to act in a civilized manner when attempting to resolve discrepancies and disputes regarding your contract, refrain from acting in this unacceptable manner toward Caltrans employees, and apologize to Mr David Njoya and Mr. Lawrence Okoye, Structures Representative, for the statement,inade in your letter. of November 20, 2003, there will be no District Claim Meeting. "] A review of the project files, including Mr. Okoye's diary for this project reveals that Mike Ahmadi was continually abusive throughout this project tb the point that Mr. Okoye felt' another representative- should be assigned to finish the job because Mike Ahmadi refused to communicate with Mr. Okoye. (See Exh. A, Ref. No: 33 and Diary entry for January 13, 2003). b. Other examples: Highland's behavior was not unique to this contract. Use of foul language, yelling, insults and displays of anger creating a hostile work environment are apparently the norm for Highland representatives. This behavior is discussed in nearly all the Declarations included in the record. A few other examples of this unacceptable conduct are drawn from Exhibit A; • Ref. No. 5 .Department to Highland, 'T take, exception to being called a jackass at the Glendale office this morning.." • Ref. No. 14 Ltr from Highland to Behrooz Pierzadeh "A sack of rocks has more sense and experience in this business than you and Chris Mockus. "; • 'Ref. No. 17, discharging Mike. Ahmadi frorn the work on Contract 12- OC2404, "...discharge Mike'.Ahmadi for. his improper manner and unprofessional conduct" • Ref. No. 21, Letter. from McKenzie to Highland removing Mike Ahmadi from the. . work on Contract 07-4H1104, "Mike Ahmadi. became abusive in that he yelled, used inappropriate language and displayed anger..." • Ref No., 25 Highland to Doug Farling, District 7 Director, "Only a 'fool' would resort to making a judgment/accusation, having heard only one side of the story "; "Cnitl —1 imPioves n N&Y uross C j&mla ". CT HC 00010 • Highland Construction, Inc. March 21, 2005 Page 11 0 • Ref. No. 32; Okoye Diary, referring to Mike Ahmadi,. "Mike burst into a stream of cussing prompting me to end the conversation" • Ref No. 34, Ghafghazi to Highland, "You called Mr. Okoye an 'asshole' and proceeded with stronger words.:. You referred to State engineers as 'Jackass Inspectors', 'Stupid Inspectors', `F * * *" State Designers, etc..." The record is replete with examples of this behavior. Department employees are consistently and repeatedly subjected to harassment, abuse, insults, and intimidation: Highland routinely threatens to and does- elevate issues. inappropriately, repeatedly and reports 'Department employees to their management for alleged incompetence. In other 'words, l ighland threatens to cause Department employees problems if they do not comply with Highland's demands. Highland does not hesitate to denigrate and question the. integrity, of any Department employee who disagrees with it. For.example, by letter dated May 2, 2003 to Peter Chan, Ms. Kristi Stelle of Highland.insulted Ben Ghafghazi. by stating, "We highly recommend, for the protection of the public, that Caltrans have him (Ghafghazi) seek psychiatric treatment." (Exh. A. Ref. No. 35) The Department finds this behavior proves a. lack of trustworthiness essential to good faith and fair dealing which supports a determination of non - responsibility: D. Contracting with Highland has resulted in an administrative burden and cost far in excess of that encountered on projects of similar size, scope, value and complexity. The record reflects'repeated instances where Highland's behavior makes it difficult, if not impossible, to resolve the issues and problems that inevitably arise on .a construction project.. This is true even when Highland has raised a legitimate concern. As already discussed,.. Highland routinely refuses to deal with the Resident Engineers and repeatedly elevates the same issue to all levels of management in an attempt to bully the Department into acceding to its demands. See Declaration of Peter Chan. Multiple parties testified that the volume of correspondence generated by Highland which repeatedly raise the same issues make administration of Highland's contracts more burdensome, time - consuming and expensive than that normally found on projects of like size and value. The volume of correspondence was particularly striking given. that nearly all these projects were less than $650,000 and 100 days. Yet Highland often wrote multiple letters on the same issue in a single day, The administrative burden imposed by the necessity of addressing the constant demands and abuse by Highland's 'representatives results in an administrative expense that is disproportionate to that encountered on projects of similar complexity and value. Most of "Caltr T in�IPW"J MOMUY ar.•rasr CallfOMW- E LI 0 CT HC 00011 0 0 Highland Construction, Inc, March 21, 2005 Page 12 the projects awarded to Highland are relatively small, yet multiple meetings, calls and letters all repeating the same issues require an undue amount of time and attention: Evidence of this routine practice, can be found in the correspondence and declarations attached hereto. For instance,. see Declarations of Fred Khosrowabadi, paragraphs 8 and 9 discussing the 'volume of correspondence, that every issue was an argument; time and effort to address: Declaration of Nahid Baghbanian paragraph 8 noting they met with Ahmadi ten times and that it is unusual to have multiple meetings on a project of this size; Declaration of Chris Mockus referring to Highland's "letter writing campaign" and that the time and effort to deal with Highland far exceeded the .normal level; Declaration of Scott McKenzie, paragraph 5 that during the administration of Highland contracts he spent an unusually large amount of time responding to Highland. which was unreasonable given the projects and far exceeded that which was. normal; Declaration of Ken Boccicchio in accord. CONCLUSION Based on Highland's record, only some-of which has been specifically mentioned in this letter, the Department concludes that Highland is not a responsible bidder because it is unprofessional, untrustworthy and unfit to perform public works contracts. The record indicates that the representatives of Highland Construction consistently display considerable personal animosity toward the Department's employees and repeatedly ascri bes dishonorable motives to those employees. Highland's attitude and behavior have affected its contract performance, It has demonstrated a clear inability to conduct business in a. professional manner without resorting to insults, personal attacks, threats and intimidation. Disagreements, disputes about contract requirements and claims are part of any construction project. A responsible bidder can be recognized by the manner. in which he:responds to such situations. Here, Highland is unable to competently resolve such issues. Highland invariably responds by disparaging the Department's employees and generating:. voluminous correspondence on the same issue directed to multiple levels of.authority_within and outside the Department. Highland also exacerbates the situations by engaging in such offensive behavior that phone calls and meetings are often terminated due to the inability of Highland representatives to behave in.a civil and professional manner. This makes it difficult, if not impossible, to resolve disputes: Highland has repeatedly demonstrated an intentional disregard for contract requirements and procedures, displayed an intentional failure to comply with contract -terms, shown that it lacks the capacity to complete projects in a competent manner and that is has no ability to competently resolve disputes. Highland's behavior has exhibited an absence of the trustworthiness essential to good faith and fair dealing implied in every contract, " Calrrmu improver mobility across Califormia" CT HC 00012 Highland Construction,, Inc. March 21, 2005 Page 13 The Department concludes. Highland is not .a responsible bidder. Highland. may seek to rebut this determination in accord with the procedures described at the beginning of this letter. Otherwise, the determination of non - responsibility will be final.; Sincerely, ' i d JOHN C. MCNIILLAN Deputy Division Chief Division of Engineering Services, Office Engineer Enclosures "Cattmn.r fmpmp zj Ian6flfry mrruss Cadfornla" 0 CT HC 00013 0 • 0 0 EXHIBIT C 0 AUG -03 -2005 WED 09:32 AN OA1l'.,AC FAX N0. 1910.,a6439 BEFORE TIM DEPARTMENT OF TRANSPORTATION STATE OF CALIFORNIA In the Matter of the Determination of Non - Responsibility of. IIIGHLAND CONSTRUCTION, INC. Re: Contract No. 07- 1661A4 OAH No. X2005030840 PROPOSED DECISION Administrative Law Judge (ALJ) William O. Hoover, State of California, Office of Administrative Hearings heard this matter on June 6, 2005, in Sacramento, California. P. 03 Kathryn T. Papalia, Deputy Attorney, Department of Transportation, represented the Department of Transportation (Department). Raisin & Kavcioglu, Attorneys at Law, by Bradley A. Raisin, Attorney at Law, represented Highland Construction, Inc. Also present were .Mike Ahmadi, Owner, and employees bavid Alunadi and Kristi Stelle. Documentary and oral testimony was received, however, the matter Could not be concluded in the time allotted. In lieu of farther live testimony, the parties agreed that respondent could submit declarations. The parties likewise agreed to the submission of written closing argument to be received not later than June 24, 2005. Respondent's declarations and closing argument were received by the Office of Administrative Hearings on June 14, 2005, and marked as Respondent's Exhibit 7: The declarations were admitted into evidence, however, the closing argument was not admitted. The Department's written closing argument with various attachments (A -E) was received at the Office of Administrative Hearings on June 20, 2005, but not received by the ALJ until June 22, 2005. It was marked as States Exhibit 5. With the exception of Attachment A. which was admitted into evidence, none of the remaining documents were admitted. The ALJ took official notice of the contents of Attachment C. The matter was deemed submitted on June 22, 2005. 0 • • AUG -03 -2005 WED 09:32 AN OAf1 aAC FAX NO. 191606439 P. 04 FACTUAL FINDINGS 1. Highland Construction, Inc. and M. Ahmadi Construction & Engineering Company (MACE) (respondent) are both owned and operated by Mike Ahniadi. Mr. Ahmadi frequently acts as the representative at the work site for these two companies as well as its representative in dispute resolution meetings with the Department. This proposed decision considered information about both companies and the findings are applicable to both. 2. Since May 2001, the Department has awarded a total of eleven major contracts to respondent. Three of the contracts awarded between May 8, 2001 and October 3, 2002, went to MACE, and the remaining eight contracts awarded between May 4, 2004, and September 29, 2004, went to Highland. This number does: not include contracts under $120,0)00, which are known as "Minor B" contracts and not subject to the State Contract Act. The estimated time for completion of these major contracts varied from 30 -280 days with' eight estimated at 100 days or less. The value of the contracts varied from $144,480- $2,055,139, with nine valued at less than $650,000. 3. In February 2005, the Department solicited bids for proposed Contract No. 07- 1661A4. Respondent submitted the lowest bid, in the amount of $3,432,995. Under the Public Contract Code, the Department is requited to award contracts to the lowest responsible bidder. 4. On February 11, 2005, the Department notified respondent by letter, of its concern that respondent was not a responsible bidder in light of incidents relating to Contract Nos. 07AH1104 (awarded May 13, 2004) and 12- OC2404 (awarded May 14, 2004). Respondent had been removed from both projects for "disorderly" and "improper" behavior. The letter fttrther noted that respondent failed to designate an authorized representative after his removal on both projects. Additionally, as to Contract No..12- OC2404, respondent "failed to prosecute the work," "failed to secure the project as required by the contract" and "failed to follow dispute resolution procedures established in the contract." 5. Respondent responded by letter dated February 15, 2005. The letter acknowledged problems with the two contracts and referenced problems with a third as well (Contract No. 07458904). The latter mentioned contract was not addressed in the Department's letter. Respondent attributed the problems to a variety of sources and generally denied any wrongdoing. 6. Upon receipt of respondent's letter and additional investigation, this matter was assigned to John C. McMillan, Deputy Division Chief, Division of Engineering Services, Office of the Engineer. On behalf of the Department, Mr. McMillan reviewed voluminous materials relating to respondent's conduct on the above- mentioned contracts, and other contracts as well. On March 21, 2005, he rendered a written preliminary determination that focused primarily on the above- mentioncd contracts. Mr. McMillan found that in eight of the eleven contracts respondent "engaged in consistent pattern of abuse, harassment and intunidation of Department personnel and has refused to 'follow • AUG -03 -2005 WED 09:33 AN OP,,r10 FAX N0, 1919JB439 P, 05 contract procedures for prosecuting the work, resolving claims, and following the chain of command." He concluded that respondent was not a responsible bidder on the contract at issue. 7. The purpose of the present hearing is to provide respondent an opportunity to rebut the Department's preliminary determination and to present evidence of his qualifications. THE CONTRACTS: 8. Contract No. 07- 458904: awarded to MACE May 8, 2001 for $500,325, to replace Portland concrete (70 Work Days (WD)). This project involved the replacement of highway approach slabs, a routine operation that required removal of old slabs, excavation and pouring of new slabs. The project did not present any unusual circumstances. The dispute arose out of respondent's contention that he should receive more money because the extra depth of the underlying cement treated base removed, required him to pour extra concrete to a claimed depth of 20 inches. This set of circumstances did not amount to a different site condition or design error. Respondent was paid for the "aggregate base" actually poured, at the contract unit price and wanted, but did not receive, an increase in the unit price based on the increased quantity of "aggregate base" used. The dispute continued into 2004. On February 4, 2002, at a meeting held to discuss the above issue, respondent accused a Department representative (Richard Joludow), who attended soley to explain the Department's position, of lying and referred to him as a "jackass." Mr. Joludow only remained at the meeting for 10 minutes due to respondent's behavior, but prepared a letter addressed to respondent in which he decried respondent's conduct and stated that he "will try one more time" to explain the Department's reasoning in denying respondent's request to adjust the contract unit price. In an April 5, 2004 letter under respondent's letterhead, addressed to Tony Harris, Chief Deputy Director of Transportation and signed by Kristi Stelle, office manager, Department personnel ( "Bob Pieplow and the likes of him ") were accused of criminal behavior and described generally as ignorant and incompetent. In his written response, Respondent admits calling Mr. Joludow a "jackass," but considers h justified based on the difficulties he experienced with the Department and its personnel on this project. 9. Contract No. 07- 020474: awarded to MACE on October 3, 2002, for $2,055,139 to install of soundwall (280 WD). Disputes arose on this project in several areas the most significant of which involved water that seeped into drilled pile holes after a storm, and removal of part of a retaining wall. The R>? for this project was Ben Ghafghazi, the Structural Representative was Lawrence Okoye and the Senior Transportation Engineer was David Njoya. As a result of his behavior respondent was threatened with removal from the proj ect. 9 AUG -03 -2005 WED 09:33 AM OA AC FAX NO. 19160439 P. 06 The disputes and interactions between respondent and Department personnel on this project were numerous and ongoing and resulted in a voluminous paper trail. While respondent asserted that the problems arose out of design errors, the failure to prepare timely contract change orders (CCO) and delayed payments; the real problem centered on respondent's working relationship (or lack thereof) with Okoye. Over an approximately one- year period, beginning shortly after award of the'contract, respondent regularly engaged in name- calling, personal insults and other forms of verbal abuse directed at Okoye. The occasions are too numerous to recite, however, an encounter occurring on or about December 20, 2002, is typical of respondent's overall conduct and attitude towards Okoye. The following occurred during a phone conversation discussing cost estimates: "Then Mike [respondent] launched into a stream of expletives and started telling me where I could stick my estimate. In the interest of civility I ended the conversation." Per Okoye, at a meeting on October 12, 2002, respondent's "curse words at our. higher management was so intense that Ben Ghafghazi threatened to have [respondent] removed from the project at which [respondent] laughed, saying he could not be removed from the project because he is the contractor." By January 2003 respondent would not speak to Okoye. Okoye noted that respondent refuses to sign change orders or do any work until a change order is executed, thereby causing job delays. Okoye expressed a desire to be replaced in order to "get the job going again. In a letter to respondent, dated January 23, 2003, memorializing a requested meeting with him by respondent on November 22, 2002, Ben Ghafghazi noted that respondent mostly complained about Okoye, referring to him as an "asshole" and worse. Mr. Ghafghazi then noted that "[i]n the course of disussion, you lost your temper and began cursing State employees and how their incompetence is costing you money all the time. You referred to State engineers as "Jackass Inspectors ", "Stupid Inspectors ", "F * ** State Designers..." Ghafghazi noted that when lie informed respondent that authority to release certain funds needed to be authorized by a supervisor, respondent began using the "F * * *" word towards Ghafghazi, prompting him to end the conversation. The letter advised respondent that his conduct was unacceptable and that if continued would result in respondent's removal from the project. In a reply letter dated November 20, 2003, and addressed to David Njoya, respondent referred to Njoya's previous letter as "rubbish." The letter goes on to accuse him of "outright lying" and states "[i]t appears to me that you have your head up where the sun does not shine..." Similarly, in an earlier letter to Njoya, dated October 23, 2003, respondent used the term "utter incompetence," referring to Okoye's skill level. Respondent's written response to the Department's allegations consisted of a single paragraph that attributed project difficulties to "design errors and other problems." It makes no reference to any of the behavior matters described above. At hearing respondent denied using abusive language towards Njoya, but admitted calling him "incompetent." Respondent testified that it is "not important calling people names." While his relationship with Okoye AUG -03 -2005 WED 09:33 AM 0 *11C FAX N0. 191066439 P. 07 4 was the subject of testimony, it related mostly to respondent reference to him as "King Zulu." While that reference may not have been uttered with any racial overtones, it demonstrates a lack of sensitivity and good judgment. There was no competent evidence produced in rebuttal to any of the foregoing as it relates to respondent's conduct. 10. Contract No. 07-4H1004: awarded May 4, 2004, for $420,250 to repair edge drain (190 WD). This contract involved the removal and replacement of concrete and the plans specifically called for existing utility lines to be protected in place. After award of the contract, respondent claimed the lines were in his way and that he would not be responsible for damage to them. He was advised that he would indeed be responsible for any damage to the lines, but was advised that he should be able to safely work around them. Respondent then asserted that the lines created a "very dangerous working environment" and wanted them relocated (or removed and reinstalled after removal of the concrete). This caused the Resident Engineer (RE) to postpone a scheduled pre - construction meeting to look into respondent's assertions. However, respondent refused to accept the postponement, claiming it was a delaying tactic, showed up at the meeting location and insisted it take place. June 1, 2004 letter to Scott Mckenzie from respondent's office manager Kristi Stolle, using respondent's letterhead, relating to Mr..Moussa's phone call to reschedule a pre - construction meeting set for June 2. The rescheduling was opposed by Ms. Stolle, and the conversation escalated to the point that Mr. Moussa "raised his voice at an intolerable level and used foul language" at her. Ms. Stolle stated that she told Mr, Moussa that he was a state employee and expected to conduct himself in a professional manner; and that she would not tolerate that sort of behavior from him or continue the conversation if he did not act professionally, She further stated that "[w]e expect to be treated in a professional manner and with respect during the time we are conducting our business with the (Department]." Mr. Moussa sent respondent a two letters each dated June 1, 2004. One letter advised respondent that the Department did not believe a safety issue existed and instructed him to proceed according to the plans. The second letter was more insistent regarding respondent's contractual responsibilities and raised the question of whether or not respondent was capable of performing the contract. Respondent was ordered to cease contract related work immediately and not mobilize to the job site "until further instructions." The letter advised that the June 2, 2004 meeting was postponed until the issue was resolved. Although the letter was identified as a "Tennination of Contract," the language in the body of the letter clearly does not reflect that. However, respondent interpreted this letter as a termination of the contract (even at hearing). He maintained that position despite a June 2, 2004 letter from Massod Akbarian, RE, that specifically addressed the safety issues raised by respondent, informed him that he could start work and advised him that the pre - construction meeting was scheduled for June 7. The issue of the postponed and rescheduled pre - construction meeting generated excessive AUG -03 -2005 WED 0933 AM 0AA0 FAX N0. 19163,x6439 P. 08 v and unnecessary letters from respondent, regarding the appropriateness of the cancellation of the June 2, 2004 meeting, and other matters unrelated to the "safety issue." This, in turn, triggered Department responses involving numerous personnel at various levels of supervision. Respondent conditioned his attendance at the June 7 pre - construction meeting upon the attendance of Scott Mckenzie, Chief, Office of Construction, Field Bast, to discuss multiple issues. After being advised by Mr. Mckenzie that the matters respondent wished to discuss would detract from the purpose of the meeting, respondent declared he would not attend, stating that he had already attended a pre - construction meeting on June 2. Respondent's various correspondences to Department personnel were insulting and displayed a great deal of animus, as the following examples indicate; a letter to Mckenzie- "Your letter contains nothing but rubbish;" to Mckenzie's supervisor Peter Chan- "[Mckenzie is either doing this; distorting and ignoring the facts, fabricating lies;. knowingly and deliberately, which constitutes harassment at the very least which is against the "law.' ; to Chan regarding the temporary suspension of work pending a pre - construction meeting- "[ejven a mentally retarded person would have abetter reasoning and rational than thisl What are they smoking ?" Respondent's written response to the Department's allegations reiterated his complaints against the Department on this project, but did not address respondent's conduct. • 11. Contract No. 07 -4HI 104; awarded May 13, 2004, for $208,070 to construct a masonry wall (120 WD). The dispute in this matter centered on work done at the request of the Construction Engineer Om Garg, upon assurances that CCOs would be issued to pay for the work. In fact, Garg had been misinformed by staff that sufficient funds were available for the project without the need to make a formal request for supplemental funds. After discovery of this fact, supplemental funds were requested. This circumstance delayed payment to respondent. At one point, a temporary suspension of work was called due to design and funding issues. This prompted a request from respondent for a meeting to discuss and resolve these and 'other issues related to the project. On September 13, 2004, at a Department office, respondent and David Ahmadi met with Garg and Kelvin Tran, the RE. During the course of the meeting respondent became increasingly upset and began using "foul language." Respondent was abusive and intimidating and Garg recessed the meeting to give respondent a chance to calm done. As the parties were leaving the room, respondent continued to shout and yell and approached so closely to Garg that he placed a writing pad in front of his face to avoid eye contact. He walked to his office and respondent followed, talking loudly. Garg asked Tran to call the police, but Tran persuaded respondent to leave. Garg noted that while disagreements between the Department and contractors are sometimes "heated," it is "unusual for a contractor to be so abusive and intimidating." On September 20, 2004, a second meeting was held at respondent's request. The same individuals with the addition of Scott Mckenzie and a Hadi Moradi attended this meeting. During this meeting, Mckenzie advised respondent that his behavior was unacceptable and that he would be discharged from the project if it continued. Respondent AUG -03 -2005 WED 09:33 AM OVAC FAX NO, 1910-3fi439 P. 09 became angry during this meeting as well and stated to Tran "If you smile again, I'll kick your ass out of this office," On September 30, 2004, Mckenzie notified respondent by letter that he (Mike Alunadi) was being discharged form the project. The specific basis for the action was the conduct described at the September 13, 2004 meeting. Mckenzie indicated his willingness to discuss with respondent the reasons for the action and any request for reinstatement. Respondent's written response to the Department's allegations focused on Garg's erroneous representations about the issuance of CCOs. Respondent admitted that he raised his voice and shouted, but did not address the specific allegations. At hearing respondent reiterated that he raised his voice but denied the incident as described by Garg. David Ahmadi offered no specifics but generally agreed with respondent. Respondent's denials are not persuasive and fail to rebut the preliminary findings of the Department. 12. Contract No. 12- 0C2404: awarded May 14, 2004, for $405,445 to resurface highway ($40 WD) This project essentially required the removal of existing concrete slabs and pouring of new ones. Respondent received notice to proceed with the work on June 23, 2004. The project was terminated by the state on September 8, 2004, due to funding, design and other considerations. Respondent early on identified several constructability issues, which needed resolution before the contract could proceed. The time allotted was one such issue. Respondent offered proposals including using faster setting concrete. This proposal was investigated, but ultimately rejected as too expensive. Respondent sought payment . related to the accompanying delays, which led to confrontations with Chris Mockus, the area Office Chief responsible for the project. On July 28, 2004, respondent called Mockus to discuss the project. in the course of the phone call respondent resorted to profanity and became verbally abusive towards Mockus. Other than a June meeting, this was only the second time that Mockus had ever spoken to respondent on this contract. In a letter dated July 29, 2004, respondent was advised by the RL (Majid Banihashemi) that respondent's behavior was unprofessional, unacceptable and would not be tolerated. Respondent was also advised "any future occurrence., .will result in your immediate removal from the contract." From the date of the July phone conversation respondent continued to verbally attack Mockus in letters to Department personnel. Among other things, the letters accused Mockus of "utter incompetence" and of "having his head up where the sun does not shine." Other Department personnel were similarly accused of "utter incompetence." By letter dated August 17, 2004, the RE informed respondent that Mike Altmadi was discharged from the contract for "his improper manner and unprofessional conduct." Even after his discharge the verbal attacks on Mockus continued. Even though the state terminated the contract respondent still had the responsibility to secure the project. It failed in that responsibility. Respondent's written response to the Department allegations did not address his behavior in regard to Mockus, but offered criticisms of him instead, At hearing respondent_ • AUG -03 -2005 WED 09 :33 AM 0AIRric FAX N0. 1916 1)6439 P. 10 M used the opportunity to talk about the problems with the project, but did not address his behavior towards lvlockus and his discharge from the project. 13. Contract No. 08-438114: awarded August 31, 2004, for $484,890 to do a relalignment to create a T intersection (100 WD). The essence to this dispute and allegation is the fact that respondent chose to dispute the requirement placed on him to prepare and submit a Storm Water Pollution Protection Plan ( SWPPP), even though it was clearly called for in the Special Provisions. He kept insisting that the contract only called for a Water Pollution Control Plan (WPCP). Respondent did comply but grudgingly and the SWPPP submitted required several amendments and corrections, causing delays in the project startup. The Senior Construction Engineer (Fred Khosrowabadi) responsible for supervision of the project noted in his declaration that respondent's failure to comply with the Special Provisions regarding the submission of the SWPPP extended over several weeks, and that the project could not begin without an approved SWPPP. Respondent also claimed the SWPPP was not part of the contract and, therefore, wanted to be paid extra for its preparation. Whenever any issue arose it "resulted in an argument [with respondent) and required a great deal of time and effort to address." Respondent refused to sign change orders until he got everything he demanded. The amount of correspondence generated by respondent was "upwards of 60 letters, which is way above the normal trend." Further, "[t]he time invested . in the administration of this contract was also way above the norm as compared to other projects of similar complexity. As for respondent's letter of December 14, 2004, asserting that it had "cancelled all work for the ... project" due to failure by the Department to "resolve 'numerous issues'." Based on the available record respondent did complete the work and performed additional work besides. This particular finding is not sustained and is considered rebutted. L4. Contract No. 12- 0140024: awarded September 29, 2004, for $1,529,830 to resurface existing highway ( -30 WD). Total payments under the contract were approximately $ l.8 million. The dispute in this matter was largely over the removal and replacement of dowels, which respondent asserted were not part of the contract. Respondent insisted on a CCO before doing what Ire considered extra work, despite being ordered by the RE (.Kausi Amuthasakaran (Amuth)) in letters dated November 17 and 18, 2004, "to immediately replace the dowels in the Concrete Barriers..." The RE further directed in the November 18 letter that respondent "complete the work as requested and protest accordingly." Respondent eventually completed the work, but only after a CCO had been written. As respondent noted in his written response to the Department's allegations "Finally, Caltrans wrote the C.C.O. and we performed the worts." Amuth's declaration noted that he spent excessive and unreasonable amounts of time responding to correspondence and phone calls from respondent, which created an administrative burden not commensurate with similar projects. He also noted that respondent is first and only contractor he has worked with that "does not acknowledge the direction of the resident engineer." Respondent disobeyed a direction from the engineer • creating an unsafe roadway condition that persisted for months due to his refusal to remedy AUG -03 -2005 WED 09:34 AN OAN'SAC FAX N0, 191696439 P. 11 the situation. Respondent failed to follow protest procedures when he disagreed with the RE's direction (Standard Specifications 4 -1.03A ) and instead demobilized and left the job site, Disputed items were elevated to the next level of supervisor without notice. Respondent's testimony at hearing was that he had to wait for the CCO.and that the project was ultimately completed satisfactorily. Respondent's and Kristi Stelle's testimony on this matter were not persuasive and did not rebut the allegation. 15. Respondent's conduct relating to two other contracts, was also addressed in the preliminary determination. A. Contract No. 12- 040504: In October 1998, during a meeting with several Department employees (James Roldan, Lee Haber, Ken Bui and Tran Dang) to discuss CCOs, respondent became angry. According to the declarations of Lee Haber and others, respondent stated that "he sometimes wished he could take a'machine gun' and shoot everyone at Caltrans." Haber related that it was his experience that respondent routinely became angry and yelled at Department employees. Haber noted that even if respondent was correct, matters could not be discussed in a civil tone and respondent's behavior diverted attention from the issues. This finding was not contested. B. Contract No. 12- 12A695: This was a minor contract awarded in 2001. According to a declaration from Nahid 13aghbanian, the Senior Engineer on the project (who supervised the RE), respondent was exceedingly difficult to work with. She stated that he was hostile during meetings and would raise his voice and use profanities. He complained about Department delays costing him money and, at times, would demand to be paid for additional work before working on another part of the coniract. He wrote letters calling Department employees "incompetent." She also noted that respondent would call employees at the field office yelling and screaming at them until they hung up on him. In the Spring 2002, a few months after project completion, Baghbanian went to a local restaurant for lunch. Respondent and his brother were there as well. After the arrival of friends, Baghbanian became aware that respondent was shouting and using profanity. She and her friends quickly discerned that respondent's verbal assault was directed at her and was in Tarsi. She became frightened and she and her friends left the restaurant. Respondent's written response to the Department does not address the above behavior, but at hearing respondent admitted telling Baghbanian; you "think you are tough shit." This admission tends to corroborate rather than rebut Baghbanian's version of the incident. 16. Although respondent admitted during hearing that he uses profanity and insults, he asserts it is simply a manifestation of the construction business. In respondent's view, the use of profanity is commonplace and includes state employees as well. Loud and • AUG -03 -2005 WED 09:34 AM 0AAC FAX N0. 19163716439 P. 12 profane arguments are the norm, if he is to be believed. However, even if the use of profanity and vulgar talk is a hallmark of the trade, respondent's use of it is different. The difference is in the degree of hostility present, the nature of the language used and the fact that respondent personalizes it. He is not just profane; he is intimidating and verbally threatening, especially towards those he considers inferior to himself. In short, be is a bully who uses his anger to get what be wants. Respondent is unabashedly unapologetic for his behavior, much of which is recent, and there is little reason to believe he will change his demeanor in the near future. 17. The state has a zero tolerance policy when it comes to violence in the workplace. Violence, of course, includes verbal abuse as well as physical assault. While respondent may not be subject to its terms, his conduct directly affects the states responsibility to maintain a violence free work enviromment for its employees. 'Thus, where respondent's actions create a hostile work environment, the state has the authority and responsibility to prevent his interaction with its employees. 18. Respondent's general disregard for the rules and protocols governing state construction contracts is equally significant, As demonstrated by the evidence, respondent pays lip service to the chain of command when he determines he cannot work with the RE, in order to "elevate" the matter up the supervisory ladder. He also fails to follow the process for resolving claims and disagreements. It is also evident that respondent's conduct creates unreasonable administrative burdens disproportionate to the complexity of any given project. • 19. Respondent offered several character reference letters and evidence that it has performed in a satisfactory manner on numerous other occasions. Such evidence may be considered in mitigation, but it does not rebut the rather strong evidence of unacceptable and improper conduct by respondent and the concomitant preliminary determination of non- responsibility. 0 LEGAL CONCLUSIONS 1. Public Contract Code section 1103 provides that the Department is required by law to award public works contracts to the lowest responsible bidder. A responsible bidder is one who "has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract." In determining what constitutes a responsible bidder, it is clear that the term encompasses far more than technical skill or proficiency. Trustworthiness, likewise, is a term with broad implications including the expectation that the contractor will comply with rules and procedures and will not unnecessarily or unreasonably increase the burden to the state in performing the contract. Fitness is another term that necessarily involves the obvious and need for and responsibility to maintain good and effective working relationships with project personnel. WE AUG -03 -2005 WED 09 :34 AM OAN-5AC FAX N0, 19163 36439 P. 13 2. Chapter 5, section 3 -502A, of the "Standard Specifications, applicable to all contracts states that "The Resident Engineer (Subject to delegation of authority within the district) is the authorized representative of the chief engineer on the project; therefore, contacts and correspondence should be between the contractor and the resident engineer." The section also states that "Good working relationships between the resident engineer and the contractor do much to encourage an effective, efficient project and can minimize misunderstandings and disputes." 3. The relevant statutes and regulations are silent as to the standard of review to be utilized by the Administrative Law Judge (ALJ) when the matter is referred to the Office of Administrative ,Hearings for a Proposed Decision. The Administrative Procedure Act does not provide the answer. Common sense, however, compels the assumption that the ALJ's role is akin to a Superior Court judge reviewing the exercise of administrative discretion by the Department and its staff in rendering a determination of non - responsibility. It would make no sense to require that the ALJ conduct a de novo hearing, including the presentation of evidence, or even a quasi -de novo hearing based on the materials previously reviewed by the Department's designee. First, that decision has been delegated exclusively to the Department. Second, such delegation necessarily involves the exercise of discretion and application of policy considerations, purely legislative functions. Thus, while the ALJ is also a member of the executive branch of government, he or she performs a judicial (or "quasi-judicial") .function when reviewing the Department's Preliminary Determination of • Non - Responsibility. 4. Typically, a Superior Court reviews a governmental entity's award of a public contract pursuant to Code of Civil Procedure section 1085, the "traditional" writ of mandamus provision used to review an agency's exercise of discretion. (Ghilotti Construction Co. v. City of Riclunond (1996) 45 Cal.App.41h 897.) The Ghilotti court stated on pages 903 and 904: Our review is limited to an examination of the proceedings to determine whether the City's actions were arbitrary, capricious, entirely lacking in evidentiary support, or inconsistent with proper procedure. There is a presumption that the City's actions were supported by substantial evidence, and GCC has the burden of proving otherwise. We may not reweigh the evidence and must view it in the light most favorable to the City's actions, indulging all reasonable inferences in support of those actions. 5. Respondent argues that the instant proceeding necessitates a full evidentiary hearing with the right to call, cxamine and cross - examine witnesses.' In certain circumstances, court's have required that some form of an evidentiary hearing is required. Where the solicitation requires that the contract be awarded to the lowest (or highest) responsible bidder, prior to awarding a public works contract to other than the lowest bidder, ' As this proceeding was limited to the sole issue of whether respondent was a responsible bidder an this particular contract, there is no fundamental interest at stake and the argument is without merit. • I! AUG -03 -2005 WED 09:34 AN OAH•C FAX NO. 1916 6439 P. 14 a public body must notify the low bidder of any evidence reflecting upon his responsibility, afford him an opportunity to rebut such adverse evidence, and permit him to present evidence that he is qualified to perform the contract. However, due process does not require a quasi-judicial proceeding prior to rejection of the low monetary bidder as a nonresponsible bidder (City of Inglewood-L.A. County Civic Center Auth. v. Sup )c;ior Court (1972) 7 Cal.3d 861. 866 -867: Boydston Y. Napa Sanitation Dist. (1990) 222 Cal, App. 3d 1362, 1368- 1369.). The judicial review standard remains the same. 6. It was established by a preponderance of the evidence that respondent is not a responsible bidder in that: A. Respondent refuses to acknowledge the authority of the Resident Engineer. B. Respondent does not comply with established procedures for resolving claims and disagreements. C. Respondent and its employees have repeatedly threatened Department employees. D. Respondent has demonstrated a lack of trustworthiness essential to the good faith and fair dealings implied in every contract, . E. Respondent's conduct has resulted in increased administrative burdens in excess of experiences on similar contracts. ORDER 1. The Department's Determination that respondent is a non - responsible bidder, is sustained as to Contract No. 07- 1661A4. Dated: Z/2 O 0 &u La. Ate- , WILLIAM 0. HOOVER Administrative Law Judge Office of Administrative Hearings 12 0 0 EXHIBIT D P E 0 r Determination of Bidder's Responsibility and Findings for Award of Contracts No. 07- 1661A4, 07- 4J2704 and 11- 266404 Contract No. 07- 1661A4 The Department of Transportation has now completed its contractor responsibility assessment following receipt of the Highland Construction, Inc. apparent low bid for contract 07- 1661A4. The Department issued a preliminary determination on March 21, 2005 that Highland Construction was not a responsible bidder, as defined by Public Contract Code section 1103. Public Contract Code section 1103 defines a responsible bidder as "a bidder who has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works contract." The Department's preliminary determination outlined a broad array of serious issues that ranged from Highland's failure to follow contract claim procedures to the creation of a hostile work environment for Department employees. Commencing June 6, 2005, Highland had an opportunity to hear the Department's position and rebut any facts in a proceeding conducted before an Administrative Law Judge. The objective was to allow an independent party to take a fresh look at the facts and make a recommendation to me as designee of the Chief Engineer. On July 29, 2005, Administrative Law Judge, William O. Hoover issued his written findings. A copy of those findings and conclusions is attached to this Determination. After careful review of the evidence presented by both parties, I concur with each of the findings of Administrative Law Judge William O. Hoover. Findings A. 1 concur and adopt the findings that Highland Construction, Inc. has repeatedly refused to acknowledge the delegated authority of the Resident Engineer. B. I concur and adopt the findings that Highland Construction, Inc. has repeatedly failed to comply with or follow established procedures for resolving contract disputes, as well as personnel conflict and disagreements. C. I concur and adopt the findings that Highland Construction, Inc. has repeatedly threatened and verbally abused Department employees and created a hostile working environment. The hostile work environment fostered by Highland compromises the Department's ability to retain quality staff and has a negative effect on the health and productivity of Department employees. • 0 D. I concur and adopt the findings that Highland Construction, Inc. has demonstrated a lack of trustworthiness essential to the good faith and fair dealings implied in every contract. E. I concur and adopt the findings that Highland Construction, Inc. conduct has resulted in increased administrative burdens in excess of the Department's experiences on other similar contracts. Determination - Contract No. 07- 1661A4 Therefore, as defined by Public Contract Code section 1103, the Department of Transportation concludes that Highland Construction Inc. is not a responsible bidder, and is ineligible for award of contract No. 07 -1661 A4. Contracts No. 07- 4J2704 and 11- 266404 Since the time of the preliminary decision, Highland has been the apparent low bidder on two other proposals, contracts 07- 4J2704 and 11- 266404. Highland was put on notice that the record upon which the Department relied to reach a final responsibility determination for contract 07- 1661A4 would also be used to determine Highland's responsibility on these other contracts. By agreement, the parties extended the contract award period on these two projects until resolution of the responsibility hearing. These agreements are the subject of letters from the Department for each of these contracts. The first requests, dated June 24, 2005, were to extend the bid award periods until July 31, 2005. Highland approved these requests in letters faxed on June 24, 2005. The second set of letters, dated July 26, 2005, requested extensions until August 31, 2005. The July requests were approved by Highland in letters faxed to the Department on July 26, 2005. The Department's June 6, 2005 Pre - meeting Brief and the Department's opening remarks before ALJ Hoover put Highland on notice that the final responsibility determination for contract No. 07- 1661A4 would also be used for these additional contracts. rindines Given the fact that Highland had a full opportunity to address each of the identical responsibility issues the Department would raise as to its responsibility in contracts 074J2704 and 11- 266404, there is no reason why the presentation of evidence or any rebuttal could be different in a later proceeding. Therefore, I make the same findings with respect to Highland's responsibility as the apparent low bidder for contracts 074J2704 and 11- 266404 based on the record established by 2. L 0 0 the parties in the responsibility proceeding for contract 07- 1661A4. Determination - Contracts No. 074J2704 and 11- 266404 Therefore, as defined by Public Contract Code section 1103, the Department of Transportation concludes that Highland Construction Inc. is not a responsible bidder, and is ineligible for award of contracts 074J2704 and 11- 266404. August 14, 2005 0 0 MARK LEJA U California Dept. of Transportation Chief Division of Design 3. ��HighLan . Construction, Inc. Lic. #743775 December 13, 2005 Aaron Harp, City Attorney City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Re: Preliminary Determination of Non - Responsibility 2005 -06 Balboa Island Bayfront Sidewalk & Drainage Improvements Project Contract No. 3796 Dear Mr. Harp: The following is in response to your letter dated December 5, 2005, "Preliminary Determination of Non - Responsibility." This is to inform you that HighLand Construction, Inc. has completed approximately forty projects with the Department of Transportation (please see attached project list) since 1998. Within the last year there were four projects that had design errors and contract management problems that were difficult to resolve at the field level, so it was necessary to elevate certain issues to persons who had more experience in field construction and construction management. . These same projects are the subjects of Caltrans "witch- hunt" to determinate HighLand Construction, Inc. as a "non- responsible bidder." The contracts are: Contract # Contractor Job # 12- OC2404 132 08- 438114 135 12- OH0024 137 07- 4H1104 131 On December 15, 2004 HighLand Construction, Inc. was the lowest bidder on contract #07- 1661A4 for approximately 3.5 million. Subsequently in February 2005 HighLand Construction, Inc. was low bidder on contracts 07- 4J2704 and 11- 266404. Early in January 2005 Caltrans contacted HighLand in reference to contract 07- 1661A4. Caltrans told us that they were seeking additional funding for contract 07 -1661 A4 as this project was a joint venture between Caltrans and the MTA. Caltrans asked that we sign a contract extension in order to obtain the required funds. We agreed to extend the award process at Caltrans' request. On February 15, 2005 we received a letter from Caltrans alleging that they had some concerns on the above - mentioned projects and asked HighLand to address these concerns. HighLand responded to the various concerns and forwarded to Caltrans additional information in order for them to have the correct facts. Subsequently, on March 21, 2005 Caltrans sent us a letter stating that they found us to be a "non- responsible bidder" on Contract 07- 1661A4, in which we vehemently deny and are currently pursuing all legal remedies in order to invalidate all allegations. Subsequently, • Caltrans notified HighLand at an ALJ hearing for Contact 07- 1661A4 that this determination I33 North Pixley Street • Orange, California 92868 o Phone (714) 538 -5156 • Fax (714) 538 -5157 December 13, 2005 Aaron Harp Page 2 of 15 would also apply to the subsequent projects (Contracts 07 -02704 & 11- 266404), without allowing HighLand to formally rebut the charges. Caltrans based their allegations on distorted facts on five out of the forty projects that we have completed for them, along with the coerced hearsay declarations from various Resident Engineers. The following are the facts of these allegations: In order to follow the disputed allegations, we will take Caltrans March 21, 2005 letter, along with its attachment "A" and address each allegation that is being made (we have attached a copy for your convenience, CT HC 00001 - 00025, along with HighLand's response with attachments #1 - 66). For the record, HighLand Construction, Inc. does not accept the determination of non - responsibility, denies its allegations and is seeking all legal remedy to reverse the determination. BASIS FOR DETERMINATION 1. Standard Although the Standard of the Public Contract Code § 1103 is vague on it face we do not have any disagreement with its contents. 2. Prior communication regarding HighLand's responsibility Caltrans alleges that our key representative Mike Ahmadi " ...behaved in a disorderly and improper manner which recently resulted in his removal on Contract 07-4111104 and Contract 12- OC2404. " It further alleges that " ... HighLand did not respond to requests to designate a superintendent on these projects " and "on Contract 12- OC2404 failed to prosecute the work and . . . secure the project as required by the contract. " Additionally, Caltrans alleges that HighLand " ... failed to follow dispute resolution procedures established in the contract. " In order to give an accurate accounting of the facts, a brief history of the specific issues are necessary: Contract 07- 4111104, our job #131 and Caltrans attachment "A" Ref #: 21, 23, 24, 25, 26 This was a small project to construct a block wall around Caltrans maintenance station in Bellflower. The allotted time for the contract was sixty working days. However it was our schedule to perform the work and complete the contract within fifteen working days, not including plant establishment. Our schedule was approved at the preconstraction meeting. It was evident at the onset that there were many minor design errors on this project. In order to keep the progress moving, HighLand performed numerous extra works, per the verbal request of the Resident Engineer and his Senior Supervisor, this work totaled in the amount of ± $40,000.00. We performed this work in order to keep the project moving and with the promise 133 North Pixley Street • Orange, California 92868 • Phone (714) 538 -5156 a Fax (714) 538 -5157 0 U • December 13, 2005 0 0 Aaron Harp Page 3 of 15 i that Contract Change Orders (CCOs) were forthcoming. As the project neared completion we had a meeting with various representatives from Caltrans with regards to the still unseen CCOs. In this particular meeting the Senior Resident Engineer reneged on his promise to pay for the extra works that had now already been completed. Because of the design errors, the project that was to be completed in fifteen working days has now gone on for four months and has put HighLand's other projects behind schedule. Not only did the delay cause other projects to go behind schedule, but also we had also not even been paid for work that we had already performed months previously. When Mr. Ahmadi contacted Caltrans' District Field Manger, Scott McKenzie, he told us to file for arbitration and threatened that " ... Caltrans has over 100 attorneys and that a small company like you cannot win against us. . . " Caltrans requested us to perform extra work without giving us anything in writing and circumvented their own contract procedures as specified in the Standard Specifications Section 4- 1.03D, which states in part that, .. the contractor shall do the extra work ... upon receipt of an approved CCO or other written order of the Engineer. We later found out that Caltrans did not even have the money in the project account to pay for the extra work and therefore did not even have the authority to request such work to be performed (please see the attached Caltrans internal email from P. Chan [Chief of Construction] to Scott McKenzie, attachments 967 & 68). During the said meeting it is alleged that Mike Ahmadi raised his voiee and left abruptly in a threatening manner (who wouldn't after being told that, "there is nothing I can do, I cannot pay you, I cannot make any promises, I cannot make any decisions, I cannot write a CCO, etc. " this came from the Senior Supervisor that requested the + $40,000.00 of work to be performed to begin with). Caltrans later this same day sent a letter that "removed" Mr. Ahmadi from the project. There was not an inquiry or investigation to determine what the facts were or to hear our side of the story, just a directive removing him from the project. Caltrans alleges in their March 21, 2005 that we failed to designate a superintendent on this project. However, the facts are that Mr. Ralph Nevarez was designated as our field superintendent, at the preconstruction meeting, and was onsite during the entire construction of this project. We even provided certified payrolls to Caltrans to prove this point repeatedly, yet they failed to recognize this particular fact. Finally, some three to four months after completion of the project, Caltrans obtained the funds, wrote the CCOs and paid for the work that we performed. In addition, Caltrans had to pay the delays they caused to our operations (please see attachments #26 - 33). As you will later see, all of the allegations against HighLand Construction, Inc. follow a similar pattern of problems on the project and Caltrans blames the contractor for pursuing the money that is owed to him. Caltrans repeatedly brings up the same claim over and over in their "determination" of "non- responsibility." Contract 12- OC2404, our job #132 and Caltrans attachment "A" Ref #1, 12, 13, 14, 15, 16, 17,18,19 &20. This also was a small project where we were to remove various approach/departure slabs on . Route 91/5. The contract time was forty-five working days and it was our schedule to complete it within three weekend shifts. Again, as evident from the attached correspondences (please see 133 North Pixiey Street • Orange, California 92868 • Phone (714) 538 -5I56 • Fax (714) 538 -5157 December 13, 2005 • ' Aaron Harp Page 4 of 15 attachments #34 — 44) the project had design errors, mainly the specs called out for a six -hour cure on the concrete and only a seven hour work window to sawcut, remove concrete, steel rebar, and place concrete, (virtually impossible for any contractor). The engineers were aware at bid time of the design error and contractors were told to bid the project "as seen." Prior to the preconstruction meeting, we advised Caltrans of the design concerns and made suggestion as to the remedy of the issues. During a subsequent meeting with Caltrans, the Structures Representative, the Resident Engineer, the District's Field Construction Chief, along with ourselves, all agreed to change the concrete mix design to a rapid set concrete and increase the work window in order to complete the contract. Chris Mockus (District Construction Chief) promised that CCOs would be written in five days from the date of this meeting (06- 21 -04, attachment #39 & CT HC 01061) in order to get the project moving. The Resident Engineer authorized us to mobilize forces and requested us to perform the installation of the construction signs and other remedial work while CCOs were being processed (please see Caltrans internal email by C. Mockus, attachment # CT HC 1241/1242 and attachments 434 - 44). After one week passed and we could not perform anymore work until CCOs were received, we were kept in limbo for sometime on the word that, " ... we would be going back to work any day now." Months had passed and after numerous phone calls and letters, C. Mockus informed Mr. Ahmadi on the phone that "... he would not be writing the CCOs the conversation was somewhat heated by both parties and C. Mock-us said, "... 1 will not write the CCOs and I will bankrupt you ... " The statement was made because HighLand had written a letter to C. Mockus' supervisor and this infuriated him. Later, in September 2003, Caltrans terminated the contract for its own convenience. It was our schedule to have this project completed by July 2004. Caltrans alleges that, "we failed to prosecute work, failed to secure the project and failed to follow the established contract procedures". We removed all construction signs, demobilized and removed all forces from the jobsite along with removing all equipment from the temporary yard that was set up for this project. We filed Notice of Potential Claims for all costs including delays and had an independent CPA audit as required by the Contract (please see attachment #36). Now Caltrans is denying the payment for the three- months delay that our personnel and equipment were tied up while waiting for Caltrans to decide on whether or not we are going back to work on this project (In August 2005 we had to file for arbitration to force payment for the delays). Caltrans wanted HighLand to perform additional work that was not even in the original contract upon the termination. When HighLand requested a CCO for the compensation of the "extra work," Caltrans refused and now claims that that "we failed to secure the project." The facts are that our project file is replete with documentation that proves Caltrans' allegations is not supported by even their own evidence submitted to the AU. 3. Investigations and Record Caltrans collected various letters from each project and made them a part of the "record." They allegedly show some of the "egregious" examples of HighLand's conduct. The March 21, 2005 letter and "the record" make a series of unfounded allegations over and over. It also refers to attachment, "A" which has taken excerpts of the said letters out of context to try and show that 133 North Pixley Street a Orange, California 92868 a Phone (714) 538 -5156 a Fax (714) 538 -5157 0 • December 13, 2005 • Aaron Harp Page 5 of 15 9 HighLand had no basis for writing such letters. In addition, much of the said "record" are frequently duplicated in order confuse the reader and to add volume to Caltrans "investigation." We will use Caltrans' own evidence along with our project records to refute all allegations against HighLand Construction, Inc. 4. Companies owned by Mike Ahmadi Caltrans states that HighLand Construction, Inc. and M. Ahmadi Construction & Engineering, Inc. are both owned by Mike Ahmadi (who worked for Caltrans fourteen years prior to the establishment of his own company and for which Caltrans maintains a personal grudge against). It is misleading to those not familiar with the company. M. Ahmadi Construction & Engineering, Inc. was established in 1988, incorporated in 1997 and in 2002 the corporation underwent a name change to HighLand Construction, Inc. The officers and the employees have all remained the same, they are not two different corporations they are one. 5. Contracts awarded to companies owned by Mike Ahmadi As you can see Caltrans' main focus is on Mike Ahmadi and not that of the corporation for which he is an officer. Caltrans lists what purports to be the projects completed by HighLand, but the list is not complete. It lists eleven projects out of forty that have been completed by HighLand for Caltrans. All have been completed satisfactorily, without defects and any workmanship issues. Not one project has had a lawsuit been brought against it by Caltrans or others. Three of the forty projects were subject to claims in arbitration brought by HighLand for nonpayment by Caltrans. One has been settled (Contract 07- 458904) and two (which Caltrans has based their allegations, Contract 12- OC2404 & 0843 8 1 1 4) are still waiting to be heard in arbitration. FINDINGS A. HighLand does not prosecute the work in accord with the provisions of the contract and was untruthful in its letter of February 15, 2005 when it claimed otherwise. Here Caltrans makes unfounded statements that HighLand does not believe that the Special Provisions and Standard Specifications are not a part of the contract. Caltrans further alleges that HighLand advised Caltrans' staff that the Standard Specifications are " ... merely guidelines" and refers to the Declaration of John Hancock. Nothing is further from the truth! HighLand has repeatedly acknowledged the Special Provisions and Standard Specification as part of the contract agreement. Infact the disputes arise with Caltrans' own personnel have difficulty determining what is a part of the contract and what is not. Each and every time that HighLand has brought an issue up that we felt is not a part of the original contract agreement and a CCO would have to be prosecuted, Caltrans' engineers . emphatically deny that the work is extra. It would take us months to resolve even the simplest 133 North Pixley Street ^ Orange, California 92868 a Phone (7I4) 538 -5156 o Fax (714) 538 -5157 December 13, 2005 • Aaron Harp Page 6 of 15 issues when it comes to the extra work. However, as the record shows each and every time HighLand's assessment has been correct and eventually a CCO is written. Getting a CCO processed is one thing, actually getting paid for the work is altogether a different story. Caltrans' staffs that are supposedly "in charge" of the project do not have the capacity to interpret the Contract's Special Provisions nor the Standard Specification. Kristi Stelle in her Declaration (see attachments #69 - 71) denies that any such statement was made to Mr. Hancock. Caltrans is guilty of ignoring its own procedures when it comes to extra work, design errors and delays, yet has the audacity of accusing HighLand of ignoring the contract requirements. A contract is just that, a written agreement between two parties that specify the exact work to be performed, for the exact dollar amount and in the exact amount of time to be completed. Any deviation from such specifics is a departure from the original contract agreement and Change Orders have to be written. When HighLand brings valid construction issues to the attention of Caltrans, which are not a part of the original contract agreement, Caltrans routinely ignores and/or denies the issue exists. If they acknowledge the issue exists then they deny that the work is not extra. If they happen to acknowledge that the issue exists and that it is extra work, then they drag their feet in writing a CCO and therefore delays payment to the contractor. HighLand is only accountable for diligently pursuing the matters. Caltrans does not like this. They would rather the issues go away rather than to yield to the contractor. Each and every project that is at issue in Caltrans' "determination" of "non - responsibility" • HighLand had brought the issues up to the attention of the Resident Engineer and when necessary elevated the issues to someone that has more experience until the matter would be resolved. In each and every instance HighLand has been proven correct in the assessment of the contract requirements and eventually the CCO would be processed and HighLand would get paid what is due. However, Caltrans' routinely stonewalls a contractor in the hopes that they will just give up and eventually end up out of business as many of our competitors will attest to. We do not give in and Caltrans does not like it or Mr. Ahmadi. (please see attachments # 5 —7 and 8 — 13) Please note the dates that the original issue is brought up and the time that had elapsed until the CCO was actually written. 1. Refusing to acknowledge the authority of the Resident Engineer. Again, Caltrans' makes a half -witted attempt to show that HighLand does not acknowledge the Resident Engineer and " ... seeks to discuss issues, problems, and claims with the REs management without first discussing them with the RE." Caltrans then refers you to the Declarations ofNahid Baghbanian, Ken Bocchicchio, Scott McKenzie and Kausi Amuth. We'll examine each one individually to give you a clear picture of Caltrans' distortion of the facts. N. Baghbanian, para 7 -9. Ms. Baghbanian stated in her declaration that Mike Ahmadi ignored the Resident Engineer prior to starting work on the project and he contacted her. What Ms. Baghbanian failed to mention in her Declaration is that at the time Mr. Ahmadi contacted her, the RE had not yet been assigned to the project and we had some minor concerns that needed to be addressed prior to construction. 133 North Pixley Street o Orange, California 92868 a Phone (714) 538 -5I56 9 Fax (714) 538 -5157 0 December 13, 2005 • Aaron Harp Page 7 of 15 She also failed to mention that their own office was having some staffing problems and early in the project HighLand was instructed by the current RE to address all further issues to Ms. Baghbanian. This part was never brought up because Caltrans wants to give you a false impression that they did not create any of the problems on the construction project and its all Mike Ahmadi's fault. Ms. Baghbanian further alleges that Mr. Ahmadi raised his voice and became insulting at every single meeting they had. Mr. Ahmadi denies this allegation and did so under oath at the ALJ hearing. Mr. Ahmadi acknowledges writing letters to the chief of construction, as is our right to do if the issues are not being resolved at the field level. Mr. Ahmadi also requested meetings with the District to resolve the pending issues at the time. Any contractor who had been delayed by five months on a contract would do the very same thing. Caltrans' very own policy tells the contractor to elevate issues to the next level to find resolution. In the end, the very same issues that we brought up at the very start of the project and were denied repeatedly by Baghbanian and her staff, it was found that HighLand was accurate in our assessment and eventually after months of delays Baghbanian had to write the appropriate CCOs to resolve the matters (please see attachments #5 - 7). It should be noted that Ms. Baghbanian did not appear at the ALJ hearing in order to clarify any of her statements; therefore HighLand had no means to cross - examine. Ken Bocchicchio, para 7. Mr. Bocchicchio's Declaration is a fine example of Caltrans' manipulating and distorting the facts. Mr. Bocchicchio was the Acting Construction Chief during the construction of Contract 12- OH0024 and he mentions in his declaration that "his staff' also handled another contract 12- OC2404, however he was not in that position at the construction of the latter contract. In para 7, Mr. Bocchicchio states, "... the contractor's staff often contacted me be ore providing the Resident Engineer or construction engineer the opportunity to address the question or concern raised " This is an outright lie (please see attachments #53, CT HC 00925 & 00963), these are addressed to K. Amuth regarding the same issue that was later brought up to K Bocchicchio). When the Resident Engineer took a $30,000.00 illegal deduction (please see attachment #CT HC 00936) from our monthly payment and would not return it, we called his immediate supervisor (D. Hartman) first to try and resolve the issue to no avail (see attachment #53A, phone diary authored by K. Stelle). We then contacted Mr. Bocchicchio (as directed) and he ordered the RE to release the illegal deduction immediately. In addition, at the completion of the project the RE was trying to demand us to perform + $200,000.00 of extra work (not in the contract or the Special Provisions), we informed Amuth that the work was not included in the contract (see attachment #53) and we tried to resolve the issues with Amuth to no avail and with his supervisor, Darrell Hartman to no avail. It was only then that we contacted Mr. Bocchicchio. Mr. Bocchicchio failed to acknowledge in his declaration that he agreed with HighLand's assessment and he failed to mention that, "he can't understand why the RE is giving HighLand such a hard time " and it is obvious that the work could not be performed unless there were additional design details and specs forwarded to the contractor. Again, he ordered Amuth to process the CCO for the work that Amuth originally denied was extra and the same work that he "ordered" HighLand perform. Mr. Bocchicchio also failed to mention that it was, he, himself who designed the additional work that the RE wanted us to perform and that it took three months 133 North Pixley Street ^ Orange, California 92868 a Phone (714) 538 -5156 • Fax (714) 538 -5I57 December 13, 2005 • • Aaron Harp Page 8 of 15 11 to get the design to HighLand. It took Amuth another month after that to process the CCO necessary to perform the extra work (please see attachments #CT HC 00908 — 00911 and CT HC 01045, please note the dates). We will get into more detail on this subject when we address Kausi Amuth's declaration. Mr. Bocchicchio states in para 8 that, "... it is proper for contract administration issues or disputes to be elevated to my level. . . ", but then he goes on to say that, elevating issues to the Governor's office is unwarranted. First of all, it is not in his capacity to decide whether or not it is warranted. We are taxpayers and we have a constitutional right to address our Governor for any grievances, especially those that are being imposed on us by a governmental agency funded by taxpayers, such as ourselves. What Caltrans does not want you to know, is that the fact that we contacted the Governor's office is the real thorn in their side. The Governor's office took action against Caltrans on our behalf and it has made them very angry at HighLand and at Mike Ahmadi. Scott McKenzie, para 7. Ironically Ken Bocchicchio's declaration, para 7 and Scott McKenzie's declaration, para 7 are verbatim identical. We imagine that Caltrans was able to entice these individuals into signing the inaccurate declarations knowing that these individuals would never be brought into the hearing to clarify their statements under oath. Scott McKenzie's declaration mentions three contracts. Attached you will find letters that were authored by HighLand to show that each and every one of them are addressed to the RE "in charge" of the project (please see attachments #18 - 27). These alone prove that the statements made by Mr. McKenzie are false and were written by Caltrans' legal department to give a false impression of HighLand Construction, Inc. and to distort more of the facts concerning the projects. 2. Refusing to comply with contract requirements for resolving claims and disagreements. This would be in reference to Standard Specification 4 -1.03, "Extra Work ": . Caltrans alleges that HighLand "shows disregard for these requirements." Caltrans further allege that HighLand "... regularly demands payment for specific work it considers extra and threatens to halt work, refuses to perform specific work it considers extra and often insists on payment for all outstanding claims before it will agree to continue...." This is another ironic twist to Caltrans' allegations. HighLand does demand payment for work it considers extra. Caltrans' own specs require the RE to write a CCO before "any" extra work is performed. Absent a CCO a contractor is entitled to nothing. As a contractor for the State you must get a CCO or written agreement that the work will be paid as extra. HighLand has by no means delayed a project and insisted on payment of outstanding claims before continued performance on a contract. Our job is to get the contract done and get out in the least amount of time. That is how a contractor profits on a project from the State. Caltrans also alleges that HighLand ".. . even demobilized and left a project before acceptance ... " and claimed that this is "...the most serious offense . . ' Caltrans lists several specific projects that, again, we will address individually: is 133 North Pixley Street 0 Orange, California 92868 a Phone (714) 538 -5156 • Fax (7I4) 538 -5157 0 0 December 13, 2005 • • Aaron Harp Page 9 of 15 Contract 12- OC2404 This is the same project mentioned earlier. It consisted of removing and replacing several approach slabs on the Route 91/5 freeways. As stated before, there were design errors that were evident at bid time. Caltrans and HighLand were working on resolutions to the design errors and were in agreement about the resolutions required to get the project completed. In a meeting C. Mockus assured HighLand that CCOs were forthcoming and would be processed within five days from the date of the meeting (please see attachment #CT HC 01061 and CT HC 01241/1242). However, this promise never came through, in the mean time we had our equipment and personnel tied up on this project. Caltrans insisted each week for months that we would be going back to work any day. Therefore, we were kept in limbo unable to start work on other projects or go to work on this project until resolution of the design errors. During the months of waiting to receive the promised CCOs, HighLand was receiving numerous of claims from motorists for damages to their vehicles and some even were involved in auto accidents (please see attachments #72 - 74). Because we are the prime contractor we could be potentially held liable for these motorists claims that are within the contract's work limits. We voiced our concern for the safety of the + 300,000 daily commuters traveling this stretch of highway and encouraged Caltrans to expedite the process of the CCOs. We even took the matter Anther up the chain of command because of the safety issues involved. Caltrans misconstrues this as abusive /slanderous/insulting, etc. We had the preconstruction meeting on June 2, 2004 (please see attachment #34). Caltrans after all of its broken promises and foot - dragging terminated the contract on September 8, 2004 (please see attachment #44). For three months we were at a stand still, waiting for Caltrans to make a decision. HighLand's fast concern was for the safety of the motorists and secondly to keep our projects moving forward. Caltrans does not consider these things as they keep a contractor in limbo. A contractor cannot survive if he is not working, period. Did we send letter to headquarters addressing these concerns? Absolutely and we had every right to do so. Even a big agency like Caltrans has no right to disregard safety and to keep a contractor at a virtual stand still until it decides what it wants to do. To prevent delays, Caltrans is required by their own Standard Specifications to either write the appropriate CCOs, temporary suspend the project or as a last resort terminate the project. All of which, must be done within a reasonable amount of time. But Caltrans, again, ignored this and they instead they kept us in limbo and not working for three entire months. Which of course put HighLand's other three projects behind schedule and could be subjected liquidated damages. Caltrans, after three months of limbo, terminated the contract for their own convenience. As for not securing the project, HighLand did exactly what is required to secure the project and exactly what is required as per the contract's specifications. Caltrans, again, ignoring their own Standard Specifications, wanted HighLand to perform work that was not included in the contract requirements. Caltrans is well aware of this fact but fails to mention the actual facts that occurred on this project. Ironically, HighLand still has not received payment in full on this project that was terminated over one year ago (please attachments #34 - 44). I33 North Pixtey Street a Orange, California 92868 o Phone (714) 538 -5156 o Fax (714) 538 -5157 December 13, 2005 • • Aaron Harp Page 10 of 15 0 Contract 08- 438114 For this contract Caltrans alleges that a SWPPP was required for this contract and called out for in the Special Provisions. However, the facts are that there was an error in the contract (as usual). The designer called out for the water control plan (WPCP) to be installed, which is indicated on the contract's items sheet (please see attachment #50, Engineer's Estimate Item List, Item #2). In the Special Provisions it directs the contractor to follow the standards set forth in the Caltrans BMP Construction Manual. In the manual, the first page of the fast paragraph tells the contractor that if the area to be disturbed is less than one acre the water pollution control plan shall be WPCP (please attachment #51). This was the issue; it was a minor conflict between the contract items and the Special Provisions. It is by no means out of the ordinary on any one of Caltrans' projects. The Caltrans Construction Manual clearly defined which water control plan shall be required (WPCP). There were no bodies of water, lakes, streams, etc. and the area to be disturbed was less than one acre. However, the RE insisted on for us to provide a SWPPP even though it was not required and it was not a part of the contract. None of the elements in the SWPPP applied so it was difficult to have a satisfactory water pollution control plan using the SWPPP. Even though it was not required, in order to keep the peace, we complied with he RE's request to submit the SWPPP (please see additional attachments #45 — 52). Caltrans in its March 21, 2005 letter wants the reader to believe that this took weeks and there was an ongoing battle. Again, distortion of the facts, the truth is that the requested SWPPP was submitted the very same day the RE requested it. Caltrans also alleges that HighLand "cancelled all work" for the said project. Again, another distortion of facts that even the biased ALJ could not buy into and he agreed with our assessment. The allegations on this project were rebutted and unproven by Caltrans. Contract 12- OH0024 Caltrans states that on this contract HighLand ignored the RE's directions, refused to comply with the Department's requests to clarify submittals and "even demobilized before contract acceptance ". Caltrans further alleges that HighLand did not follow the order of the Engineer to complete the work it felt was extra and file a claim later. Caltrans fails to mention, as stated previously in the rebuttal of Ken Bocchicchio's declaration, that HighLand could not complete the ordered work until the design was provided. Kausi Amuth failed to recognize this fact and insisted that we perform the work. The work involved securing the krail (approximately 1100 of them) to the newly paved highway. Caltrans did not provide in the original contract that this work was to be included, nor did it tell the contractor what type of steel the dowels should be made of, how long the dowels should be, how thick in diameter they should be, nor whether they were to be threaded or unthreaded, etc. They did not tell the contractor whether they were to be driven in or pre- drilled. Infact, this work was so special that it is not even included in Caltrans' own Standard Plans. Mr. Bocchicchio and the structures team came up with the design and the specifications for the work. All of the contract work had been completed prior to this issue arising. Amuth purposed that all of our forces should have stayed on the project for four months while Caltrans decided what to they wanted us to do (we did that already on Contract 12- OC2404 and still have not been paid for it over one year later). Amuth in every instance that HighLand I33 North Pixley Street • Orange, California 92868 o Phone (714) 538 -5156 • Fax (714) 538 -5157 0 December 13, 2005 • • Aaron Harp Page 11 of 15 informed him that the work we are doing is extra denied the fact that it was extra. What Caltrans also fails to mention is that, again, each and every instant we were correct and eventually got paid for the work that the RE originally denied us payment. Caltrans alleges that one of the reasons HighLand fails to comply with the contract procedure is by not performing work it considers extra. Again, Caltrans Standard Specification requires a contractor to get something in writing before the extra work is performed. Caltrans also wants you to believe that HighLand routinely ignores the claims procedure. As you can, (please see attachments #53 - 54) and there corresponding CCOs this simply is not factual. Caltrans also relies on a paragraph in one of HighLand's letters that is taken out of context, which reads, "Upon our insistence to be paid for the work performed and/or the appropriate Change Orders be processed before we start work on additional work that was not part of the original contract, ... " [emphasis added]. Caltrans would want you to believe that this statement means that, HighLand will not do any work unless we get paid first; it's absurd and a distortion of the facts. We will break it down for you: Upon our insistence of being paid for the work being performed: Meaning that frequently HighLand has performed the original contract item work and Caltrans routinely does not pay the contractor accordingly. Even though Standard Specification Section 9 -1.06 dictates exactly how a contractor must be paid. Caltrans routinely ignores this Specification and this point is proven when K. Amuth took the $30,000.00 deduction for work that had already been completed by HighLand. Only when HighLand elevated the issue to his supervisor, the RE was directed to release the money immediately. And/or the appropriate Change Orders be process before we start work on additional work that was not part of the original contract: Again, Caltrans would want you to believe that we insist on being paid before the extra work is completed. However, the truth is that we only request that the appropriate Change Orders be processed i.e., written or something in writing indicating that we will be paid for the extra work. Caltrans Standard Specification 4- 1.03D, which state in part, "The contractor shall do the extra work and furnish labor, ..., upon receipt ofan approved contract change order" requires this. It further reads, "... in the absence of an approved change order or other written order of the Engineer the contractor shall not be entitled to payment for the extra work. [emphasis added]. Caltrans has determined us as a "non- responsible bidder" not for ignoring contract procedures, but for bringing the mismanagement of their construction projects to the attention of several key State representatives and because HighLand has shone a spotlight on the discriminatory treatment of contractors, such as ourselves. Caltrans also mentions the declaration of one Peter Chan as additional proof that HighLand routinely breaches contract procedures. The internal email from Mr. P. Chan to S. McKenzie, contradicts this statement and proves HighLand's contention that all we want is something in writing indicating that we will be paid for the extra work that Caltrans routinely directs us to perform. 133 North Pixley Street v Orange, California 92868 > Phone (714) 538 -5156 ® Fax (714) 538 -5157 December 13, 2005 Aaron Harp Page 12 of 15 • 1 1] B. Highland and its employees have repeatedly threatened Department employees and HighLand misrepresented that fact in its letter of February 15, 2005. Caltrans refers to their internal policy for "workplace violence" and zero tolerance for threats, violence, harassment, and intimidation. They further define intimidating behaviors to include shouting, slamming doors and throwing objects. Caltrans then goes on to say that Mike Ahmadi has been "physically threatening" in several instances. We address each instance separately: Contract #12 -A0695 (our job #125) Caltrans References #44,45,46 & 47"A": This contract was small and it was our schedule to finish all work in 7 — 8 working days. It had design errors, the most important one was the rebars that were left out of the contract. This issue was brought up to the attention of Caltrans from very early on and prior to the preconstruction meeting (please see attachment 45, please note the date). Caltrans at first denied the fact, them refused to accept they had to write a C.C.O. It took Caltrans three months to understand the contract and finally we received the C.C.O. on October 29, 2001 (please see attachment 97). After receiving the C.C.O. for the rebars, the inspector refused to pay us for the total quantity of the concrete we had poured. It took another 3— 4 months before Caltrans finally made full payment for the concrete. We never got paid for the additional costs of delays that Caltrans caused. Mr. Ahmadi did admit in oral testimony that he made an unpleasant comment to Baghbanian after she ignored his attempts to say hello to her. However, Ahmadi denies all . allegations that he behaved in a threatening manner. Contract #07- 4H1104 (our iob #131) Caltrans References #21, 23, 24, 25 & 26 "A ": This project was to be completed in 15 — working days, not including plant establishment. It was our schedule to start on June 1, 2004, but due to Caltrans' surveying, who delayed the project at the onset, we ending up starting on July 12, 2004. During construction the inspectors had asked us to perform additional works and promised to pay us accordingly for the extra works. After the contract work was nearly completed, the inspector, in a meeting, reneged on his promises to pay us and stated, "...I cannot pay you, I cannot write a C.C.O., I cannot make any promises, I cannot make any decisions, ...." This after he had started the meeting with "Alahakbar" (God is great in Arabic). Later, Scott McKenzie threatened us with ", ... Caltrans has over 100 attorneys and that a small company like you cannot win .... " Caltrans has stated that Mike Ahmadi raised his voice and shouted, however, these allegation have yet to be proven. Accordingly how would any average person behave if they had to wait months and years before they got paid for the work they have performed, while being forced into bankruptcy (please see attachments #26 - 33 and internal email from chief of construction P. Chan attachments #67 & 68). The design errors and extra work caused delays, which caused us to incur additional costs. Yet, it took Caltrans until July 6, 2005 to fully pay for the work that we completed on this contract the year previously. C. HighLand habitually displays a lack of trustworthiness essential to good faith and fair dealing implied in every contract. 133 North Pixley Street a Orange, California 92868 a Phone (714) 538 -5156 a Fax (714) 538 -5I57 December 13, 2005 • • Aaron Harp Page 13 of 15 Contract 407- 020474 (our iob #129) Reference 928,29 30, 31, 32,33, 34, 35, 36, 37, 38, 39, 40, 41 & 42 "A" Again, this project had many design errors and other problems. The inspectors would refuse to write the appropriate CCOs and delayed the operations by weeks. For example, we encountered water in the piles (which was not in the contract and required a C.C.O., as is the norm!) The inspector L. Okoye for the first three weeks insisted that is was part of the contract. We had to contact his supervisor, Mr. Roy Fisher, who agreed with us and directed Okoye to write the CCO. We performed the work on December 03, 2002 and submitted the billing on December 9, 2002. However, the inspector did not process the billing for payment until October 29, 2003 (please see attachments #8 — 13, with corresponding CCOs, please note dates). Also, on another issue, we were to remove part of an existing retaining wall which was shown in the contract plan to be + 12" wide. It turned out to be + 36" wide. We requested a CCO to be processed for the additional costs, as is the norm. The inspector, again, refused to accept that he had to write the appropriate CCO. After 3 — 4 weeks, we contacted Mr. Roy Fisher, who agreed with HighLand and directed the inspector to write the CCO (please see attachments #14 - 17). Every single issue that came up (+ 15 -20 of them) the inspector would refuse to write the CCO and then after we contacted his supervisor, he was told to write the CCO and to get "even" he would drag his feet to delay our payments. . D. Contracting with HighLand has resulting in an administrative burden and cost far excess of that encountered on projects of similar size, scope, value, and complexity. HighLand does contend that many of Caltrans' engineers are inexperienced and routinely place a substantial financial burden on HighLand while administering their contracts. If HighLand did not elevate the previously described issues, it would have not been paid appropriately and in a somewhat timely manner, meaning before two to three years are up. Caltrans would also like you to believe that HighLand bullies Caltrans into complying with our demands as if that were even possible. We have called Caltrans on every single issue where their engineers believed that the work they asked us to do was not extra. We called them on it, we were right and Caltrans does not want to do business with us anymore because of it. The administrative burden is actually caused by Caltrans' own incompetent personnel who consistently fail to recognize what is a part of the contract's specifications and what is not. HighLand is required to respond, in writing, to these denials in order to make a complete record of what has transpired on a project. HighLand feels that many of the engineers that Caltrans employs are incompetent. Caltrans does not refute this allegation. It was uncontested by Caltrans. CONCLUSION Caltrans does not argue that HighLand Construction, Inc. does not have the capacity to satisfactory perform the work on a public works contract as specified in the Public Contract Code Section 1103. Nor does Caltrans dispute that HighLand Construction, Inc. has • demonstrated the quality, fitness and experience to perform the public works contract as specified in the code. Caltrans' only argument is that because HighLand has diligently pursued 133 North Pixley Street a Orange, California 92868 • Phone (714) 538 -5I56 • Fax (714) 538 -5157 December 13, 2005 • • Aaron Harp Page 14 of 15 their requests for proper compensation for the extra works that it regularly performs and/or for the Caltrans related delays, HighLand is deemed by Caltrans as not "trustworthy". HighLand can be trusted that it will perform the work required in the public works contract. HighLand can be trusted to employ experience personnel to perform the work required in the public works contract. HighLand can be trusted to have over 100 years combined experience in the highways, bridge and road construction for public works contracts. HighLand is trusted to have the capacity to perform the work on public works contracts (please see attachments 456 — 66). The issue is this, HighLand has proven on each and every contract that the initial decisions made by the various Resident Engineers had been incorrect and because of these erroneous decisions it had caused HighLand to incur numerous delays, extra works, and additional expenses that virtually impacted all of the projects that HighLand has. Within the last couple of years HighLand has brought these particular mismanagements up to the attention of the Governor and to the attention of several State's Representatives. This has incensed Caltrans and now Caltrans ( "with their 100s of attorneys ") are retaliating against HighLand Construction, Inc. and maliciously trying to force HighLand out of business. HighLand Construction, Inc. denies all of the allegations made by Caltrans and is in the process of bringing a legal suit against Caltrans for its decision of "non - responsibility." In addition, we are not only in the process to invalidate the determination of "non- responsibility" we are also • disputing the procedures that was afforded to HighLand to make this determination. For additional reference please see the following: • Closing Brief Submitted to AU (separate cover) • Filed Writ of Mandate (separate cover) • Letters of Reference by Various Subcontractors & Suppliers (attachments 975 — 82). HighLand will make available, at your request, the entire project file for each contract that is at issue. The information was submitted to the ALJ, who did not consider it in his opinion. Due to the substantial volume, we choose to make it available to you should you need additional information. The evidence in the project files will substantiate all facts that support HighLand's position. We ask that you award the contract to HighLand Construction, Inc. who is the lowest responsible bidder and has demonstrated, as per Public Contract Code Section 1103, the trustworthiness, as well as quality, fitness, capacity and experience to satisfactorily perform the public works contract. If you have any questions, please do not hesitate to contact us. • 133 North Pixley Street ^ Orange, California 92868 • Phone (714) 538 -5156 a Fax (7I4) 538 -5I57 n U E 0 December 13, 2005 Aaron Harp Page 15 of 15 Sincerely, Kristi Stelle Office Manager KS: c: Brad Raisin, Attorney Paul Mahoney, Attorney Attachments VIA DHL OVERNIGHT 133 North Pixley Street • Orange, California 92868 a Phone (714) 538 -5156 • Fax (714) 538 -5I57 ORIGINAL - FINAL PROJECT ENGINEER ENGINEER START FINISH CONTRACT CONTRACT O. DESCRIPTION LOCATION CITY OWNER CONTRACT NO. NAME PHONE NO. DATE DATE AMOUNT AMOUNT 12 Sidewalks, Curbs, Gutters, Route 91 @ Tustin & 12- 0570051 12 100 Inlets, Embankment Imperial Fivry Anaheim Caltrans Y584 Dave Media 714 -632 -2550 04101/97 04122!97 $ 73,300.00 $ 79,000.00 1(111 °h Soundwalls and Street Route 105 @ Lakewood 101 Resurfacing Blvd. Downey Caltrans 07 -AO038 Amjad Obeid 310 -401 -3352 04123197 05122!97 $ . 71,657.57 $ 81,402.00 114% 102 A.C. Overlay Route 405 Costa Mesa Caltrans 12 -071004 Ali Solenjou 714556 -9416 05106197 06123197 $ 402,501.00 $ 565,303.01) 140% Route 22 & Interstate 5 103 Soundwall @ Bedford Road Santa Ana Caltrans 12 -021004 Dave Madje 714- 632 -2550 06/23/97 10/22/97 $ 231,855.01) $ 241,956.00 104% Route 105 @ Lakewood 104 Drainage System Blvd. Lynwood Cairene 07- 402204 Amjad Obeid 310. 4013352 09/16/97 04!20198 $ 281,000.0D $ 427,234.00 152% Route 163 @ Ouinoe & Samson 105 Seismic Retrofit Richmond Streets San Diego Caltrans 11- 204114 Engeda 619 -688 -3224 08/25197 0522/98 $ 539,000.60 $ 587,363.96 109% 106 Drainage/Block Wall Lake Forest Drive Lake Forest City of Lake Forest Derek Wieske 9494613488 0411 3198 06104198 $ 67,750.00 $ 79,244.6D 117% 107 Soundwalls Route 22 & Route 405 Seat Beech Caltrans 12 -040504 John Khalling 714 -632 -2536 (15126198 0820198 S 580,000.00 $ 686,163.01) 118% 1D8 A.C. Overlay Route 74 San Juan Capistrano Caltrans 12- 083504 Mike Grotke 949 - 240 -0217 09/01198 10%7/98 S 875,842.00 $ 937,008.00 107 °% i 109 Maintenance Vehicle Pullouts Route 5 & Route 405 Costa Mesa Caltrans 12 -06041.14 Lee Haber 714- 556 -8202 10108198 01!11199 S 413,740.00 $ 563,124.20 136% 110 Repatr/Grind PCC Pavement Routes 133 & PCH Laguna Beach Caltrans 12 -087104 Mike Grotke 949 - 240 -0217 11/09/98 12104198 S 96,655.00 $ 125,120.00 129% Replace POO, Slope Paving, 111 Drainage System Route 405 Irvine Cattmns 12- 093604 Mike Gratke 949 - 240-0217 11M0198 12M358 $ 134,626.00 $ 156,382.00 116% 112 • A.C. Overlay, Chip Seal Route 5 & Route 14 Santa Clanta Caltrans 07- 190904 Darryl Murphy 661- 257 -0273 01/1259 0710858 $ 584,611.40 $ 333,134.88 57% 113 Ramp A.C. Overlay Route 405 Fountain Valley Caltrans 12- 088704 Andy Duong 714 -556 -1334 0651199 0710859 S 455,970.00 S 453,156.95 106% Route 91 to 710 Issam 114 Selsmic Retrofit Connector Compton Caltrans 07- 4M9204 Abumuhor 562- 401.3353 0612$59 0910750 S 260,460.00 S 278,136.16 107% 115 Ramp Widening Route 22@ City Drive Orange Caltrans 12 -A0597 Frank Smith 714 -632 -2543 0711259 05101101 $ 194,993.00 S 238,242.85 122% Hossaln 116 Retrofit PCC Pavement Route 406 Costa Mesa Caltrans 12 -0A1104 Mansouri 714-556 -2031 092859 115559 $ 1,668,420.00 $ 1,653,708.19 99% 117 Slope Repair Route 73 Irvine Caltrans 12 -A0597 Mike Gmtke 949- 240-0217 01 /19100 02107100 $ 88,500.00 $ 109,047.00 123% 118 Sidewalk Route 19 Lakewood Caf trans 07 -AO547 Kelvin Tran 562 - 9404276 0229100 D3M3100 $ 28,212.00 $ 28,212.00 100% 119 Repair Soundwalls Route 57 Orange Caftans 12 -AO534 Scott Sylvan 714 - 632.2543 0257!00 022950 S 35,000.00 $ 35,353.75 101% 120 Sidewalks Not Applicable San Pedro Caltrans 07 -AO577 Joe Tehrani 310 -768 -1704 03116!00 04103/00 $ 42,499.10 $ 40,062.02 94% • 0 0 121 Soundwalls 122 A.C. Overlay 123' Stone Drain 124 Appacch Slabs 125 Slope Paving 126 SourKNvall 127 Street Repair Jim McAllister Channel Invert Access 128 Ramps 129 Soundwalls 130 Pavement Replacement 131 Block Wall 132 Approach Slabs 133 Approach Slab 134 Joint Seal 135 T- Intersection 136 Joint Seal 137 A.C. Overlay ' - Terminated Due to Design Errors 0 • 1 • Route 101 &Route 405 Sherman Oaks Caltrans 07- 146204 Jim McAllister 818 -788 -3303 04/10/00 06/11/01 S 1,111,427.50 $ 1,320,699.35 119% Route 73 Newport Beach Caltrans 12. 098504 Mike Grotke 949 - 240-0217 08107100 0927100 $ 177,857.50 $ 173,474.91 98% Massod Not Applicable Rancho Palos Verde Caltrans 07- 41-12804 Akbarian 310 - 516 - 4140 05(16/01 07/13/01 $ 646,795.00 $ 169,035.84 26% Route 210 Pasadena Caltrans 07- 458907 Maher Subeh 818.637 -2506 07110101 08M1101 $ 500,325.00 $ 511,020.74 102% Route 1 Seal Beach Caltrans 12 -A0696 Jose Benios 714- 566 - 3869 08/16/01 10105101 $ 87,750.00 $ 116,223.91 170% Nutmeg Street Mumeta City of Mumefa 00 -205 Sam Martin 909- 304 -2489 10101N1 11105M1 $ 153,400.00 $ 181,682.23 118% 562 - 401.3333 Not Applicable Hawthorne Caltrans 07 -A1270 Reza Jahromi zt 263 03115102 04119102 $ 91,300.00 $ 123,624.65 135% Lakewood & Santa Fe LA County Public Not Applicable Springs Works FCC - 0000837 Tony Tajalli 662 -904 -6157 0624/02 0920102 $ 181,810.00 It 207,778.89 114% 818- 7993303 Route 405 Woodland Hills Caltrans 07 -020474 David Njoya M. 205 1025102 09118103 8 2,055,138.50 $ 2,374,231.87 116% Route 110 @ Anaheim Massod Street Los Angeles Cairene 07- 41-11004 Akbadan 562 - 860.3085 06102104 06/30104 $ 420,250.00 $ 414,832.00 99% Cairene Maintenance 562 -401 -3333 Yard Downey Caltrans 0741-11104 Kelvin Tran M. 239 07108104 09108/04 $ 208,070.00 $ 298,362.95 143 °% Majid Route 91 Anaheim Caltrans 12- OC2404 Baniheshemit 949- 279 -8580 07108)04 09MB /04 $ 405,445.00 $ 156,537.87 39% Century Blvd, 310-609 -0264 Underpass Paramount Caftans 07- 2N6104 Andy Soheill A. 224 10109M4 10109/04 $ 144,480.00 $ 169,273.00 117% Route 15 Q LlmonBe Norco Coltrane OB- OA4004 Mafid Afenan 909- 2323635 01117105 03102105 $ .190,960.00 $ 216,276.73 113% Route 79 &Route 371 Aguanga Caltrans 08 438114 Al Tehran! 909- 7993122 0927104 01M2/05 $ 484,890.00 S 560,458.00 116% Route 15 a 6th Street Mile Loma Caltrans 08- 1A2104 Ali AI- Saadoon 951. 276 -1945 0329105 05/13105 $ 344,840.00 $ 384,644.11 112% Route 241 Irvine Caltrans 12- OH0024 Kausl Amuth 714556 -1334 10 /04104 03/16105 $ 1,529,830.00 $ 1,784,872.97 117% 0 EXHIBIT F • 0 E EXHIBIT G 0 0 0 9 s i TITLE 2005-06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO.: C3796 ENGINEER'S ESTIMATE: $400,000.00 PROJECT MANAGER: Frank Tran CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT BID LOCATION: City Clerk's Office - City Hall DATE: 23 -Nov -05 TIME: 10:OOAM BY: Rank Tran DATE: F:IUSERS1PBffSharedlContrac1sTY 05-06105 -06 BALBOA ISLAND BAYFRONr 0-3796/610 SUM- C3796.x1s Page 1 AD ENGINEER'S ESTIMATE HIGHLAND CONSTRUCTION, INC. FLEMING ENVIRONMENTAL, INC. BEADOR CONSTRUCTION CO. CODY ENGINEERING, INC. DESCRIPTION ITEM DESCRIPTION QUANTITY UNIT I AMOUNT UNIT AMOUNT UNIT: AMOUNT UNIT AMOUNT UNIT AMOUNT 10,000.00 1 Mobilization 1 LS $30,000.00 $30,000.00 $35,000.00 $35,000.00 16,400.00 16,400.00 39,080.00 39,080.00 40,000.00 40,000.00 5,000.00 2 Construction Zone and Traffic Control 1 LS $7,000.00 $7,000.00 $10,000.00 $10,000.00 654.00 654.00 6,500.00 6,500.00 10,000.001 10.000.OQL 250.00 3 Miscellaneous Below -Grade Removal, Disposal and Backfill 150 CY $250.001 $37,500.00 $100.00 $15,000.00 212.00 31,800.00 75.00 11,250.00 100.001 15,000, Furnish and Install 6 -inch PVC Pie 4 Remove and reconstruct POC Sidewalk 23,200 SF $8.00 $185,600.00 $10.00 $232,000.00 9.55 221,560.00 8.00 185 600.00 9.35 216,950.0 300.00 5 Furnish and Install 6 -inch PVC Pipe 2,400 LF $25.00 $60,000.00 $20.00 $48,000.00 18.32 43,968.00 27.50 66 000.00 18.00 43,200.00 2,000.00 6 Furnish and Install Area Drain 25 EA $0 $12,500.00 $175.00 $4,375.00 570.00 14,250.00 330.00 8,250.00 250.00 6,250.00 550.00 7 Ad'usVReconstruct Existing Manhole to Grade 2 EA $600.00 $1,200.00 $300.00 $600.00 451.00 902.00 825.00 1,650.00 750.00 1,500.00 Coping Joint Sealant Repair 8 Replace Existing Electrical Pull Box and Cover 30 EA $600.00 $18,000.00 $200.001 $6,000.00 527.001 15,810.00 825.00 24,750.00 300.00 9,000.00 200.00 9 Apply Seawall Sealant Below Edge of Coping 3,200 LF $4.00 $12,800.00 $2.00 $6,400.00 2.60 8,320. 5.00 16,000.00 15.00 48,000.00 18,000.00 10 Coping Joint Sealant Repair 30 EA $500.00 $15,000.00 $250.00 $7,500.00 348.00 10440.00 370.00 11,100.00 1,000.00 30,000.00 200.00 11 Funish and Install Preformed "No Bic cle' Symbol 12 EA $300.00 $3,600.00 $175.00 $2,100.00 575.00 6,900.00 185.00 2,220.00 300.00 3,600.00 7TH 12 Surveying Services 1 LS $15,000.00 $15,000.00 $7,500.00 $7,500.00 11,350.00 11,350.00 19,250.00 19,250.00 17,500.00 17,500.00 13 AsBuik Drawings 1 LS $1,000.00 $1,000.00 $500.00 $500.00 640.00 640.00 1,650.00 1,650.00 1,000.00 1,000.00 EE $400,000.00 LOW 374,975.00 2ND 382,994.00 3RD 1393,300.001 4TH 442,000.00 F:IUSERS1PBffSharedlContrac1sTY 05-06105 -06 BALBOA ISLAND BAYFRONr 0-3796/610 SUM- C3796.x1s Page 1 AD DAMON CONSTRUCTION CO. GCI CONSTRUCTION, INC. ZUSSER COMPANY, INC. ALLIANCE STREETWORKS, INC, ITEM DESCRIPTION QUANTITY UNIT AMOUNT UNIT AMOUNT UNIT AMOUNT UNIT AMOUNT 1 Mobilization 1 LS 10,000.00 10,ODD.00 66000.00 68,000.00 55,000.00 55000.00 40,000.00 40,000.00 2 Construction Zone and Traffic Control 1 LS 5,000.00 5,000.00 5,000.00 5,000.00 55,000.00 55,000.00 70,000.00 70,000.00 3 Miscellaneous Below -Grade Removal, Disposal and Backfill 150 CY 150.00 22,500.00 100.00 15,000.00 100.00 15,000.00 250.00 37,500.00 4 Remove and reconstruct PCC Sidewalk 23,200 SF 14.50 336,400.00 11.00 255,2DO.00 15.00 348,000.00 12.00 278 400.00 5 Furnish and Install 6 -inch PVC Pie 2,400 LF 24.00 57,600.00 32.00 76,800.00 3D.00 72,000.00 72.00 172800.00 6 Furnish and Install Area Drain 25 EA 300.00 7,500.00 400.00 10,000.00 400.00 10,000.00 85.00 2,125.00 7 Ad'usUReconstruct Existing Manhole to Grade 2 EA 800.00 1,600.00 1,000.00 2,000.00 1,000.00 2,000.00 1,200.00 2,400.00 B Replace Existing Electrical Pull Box and Cover 30 EA 800.00 24,000.00 800.00 24,000.00 200.00 6,000.OD 550.00 16,500.00 9 Apply Seawall Sealant Below Edge of Coping 3,200 LF 6100 19,200.00 10.00 32,000.00 1.00 3,200.00 3.10 9,920.00 10 Coping Joint Sealant Repair 30 EA 500.00 15,000.00 500.00 15,000.00 200.00 6,000.00 275.00 8,250.00 11 Funish and Install Preformed "No Bicycle"Symbol 12 EA 200.00 2,400.00 100.00 1,200.00 200.00 2,400.00 275.0D 3,30D.00 12 Surveying Services 1 LS 19,750.00 19,750.00 18,000.00 18,000.00 10000.00 10,000.00 6,000.00 6,000.00 13 As -Buifi Drawings 1 LS 1,000.00 1,000.00 1,000.00 1,000.00 1,000.00 1 000.00 200.00 200.00 5TH $521,950.00 6TH 523,200.00 7TH 585,600.00 8TH 647,395.00 F:IUSERS1PBffSharedlContrac1sTY 05-06105 -06 BALBOA ISLAND BAYFRONr 0-3796/610 SUM- C3796.x1s Page 1 AD "RECEIVED AFTER AGENDA HighLand* • PRINTED!' � In 1-a 4 ou JCI Construction, Inc. Lic. #743775 January 17, 2006 '06 JAW 24 A9:16 City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 C f F' :. ".: r Re: 2005 -06 Balboa Island Bayfront Repairs Award of Contract No. 3796 Dear Council Members Reference is made to Aaron Harp's letter dated January 17, 2005, received by our office via fax on this same date, which recommends rejection of HighLand Construction, Inc.'s bid for the above - mentioned contract. Before the Council adopts a resolution, we would appreciate the opportunity to be heard on this matter. According to Mr. Harp, the City of Newport Beach has agreed with a determination of "non - responsibility" that was made against our company by Caltrans in late 2005. The determination, by Caltrans, is biased, discriminatory and very much illegal, all of which is still being litigated. In the meantime, HighLand Construction, Inc. has the right to perform the work for which it is qualified and for which we have submitted an eligible bid. By rejecting HighLand Construction, Inc.'s bid based solely on the discriminatory recommendation of Caltrans, your City may only perpetuate the adverse treatment that we are receiving by those individuals within Caltrans who have been incensed by our persistence in being paid what is due to us and by exercising our right to contact our State's government representatives for grievances. We are sure that officials, such as yourselves, of a public agency that will deal with this specific issue, instead of following the footsteps of a few reckless people, who have been proven to be erroneous decision makers, would certainly apply the principle code of moral values and integrity necessary for malting a management decision like this on behalf of the residents of Newport Beach. We urge you to award the above - mentioned project to HighLand Construction, Inc. which is the lowest responsible bidder. We appreciate your help in this matter Sincerely, Knsti Stelle Office Manager VIA FAX & USPS I33 North Pixley Street • Orange, CaltJornia 92868 • Phone (714) 538 -5156 • Fax (714) 538 -5157 JAt 10 Allb 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 6 January 10, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Frank Tran, P.E. 949 -644 -3311 ftran@city.newport-beaGh.ca.us SUBJECT: BALBOA ISLAND BAYFRONT REPAIRS - REJECT ALL BIDS FOR CONTRACT NO. 3796 RECOMMENDATION: Reject all bids received for Contract No. 3796 and authorize staff to re- evaluate the scope of work and re- advertise the project at a later date. DISCUSSION: This project consists of construction of new concrete sidewalk and the installation of area drains and 6 -inch diameter PVC drain pipes at selected locations along South Bay Front between Sapphire Avenue and Marine Avenue, West Grand Canal Walkway between Park Avenue and North Bay Front, and entire East Grand Canal Walkway. Surface drainage will be designed to drain toward the public bulkhead and will convey the surface runoff for below grade discharge into the nearby street end catch basins. The deteriorated sidewalk panels at North Bay Front between Marine Avenue and West Grand Canal will also be removed and reconstructed. At 10:30 a.m. on November 23, 2005 the City Clerk opened and read the following bids for this project: TOTAL BID AMOUNT $374,975.00 $382,994.00 $393,300.00 $442,000.00 $521,950.00 $523,200.00 $585,600.00 $647,395.00 BIDDER Low Highland Construction, Inc. 2 Fleming Environmental, Inc. 3 Beador Construction Co. 4 Cody Engineering, Inc. 5 Damon Construction, Inc. 6 GCI Construction, Inc. 7 Zusser Company, Inc. 8 Alliance Streetworks, Inc. TOTAL BID AMOUNT $374,975.00 $382,994.00 $393,300.00 $442,000.00 $521,950.00 $523,200.00 $585,600.00 $647,395.00 BALBOA ISLAND BAYFRONT REPS - AWARD OF CONTRACT NO. 3796 January 10, 2006 Page: 2 The low total bid amount is 6.26 percent below the Engineer's Estimate of $400,000. The low bidder, Highland Construction, Inc. ( "Highland "), possesses a California State Contractor License Classification A as required by the project specifications. As part of staffs review of the qualifications of the low bidder, staff contacted Highland's references and was informed by the California Department of Transportation ( "Caltrans ") that on or about August 19, 2005, Caltrans determined that, pursuant to the definition contained in Public Contract Code section 1103, Highland was not a responsible bidder. A final determination of whether Highland is or is not a responsible bidder has not been made by the City because, after review of the time constraints and scope of work for the project, staff is now recommending that the City reject all bids, re- evaluate the scope of work, and re -bid the project for construction at a later time. Environmental Review: This project is categorically exempt from the provisions of CEQA per Section 15301(c), since the project consists to the improvements of existing sidewalk that did not impact any environmental resources. A Notice of Exemption has been filed with the County Clerk. Prepared by: Frank Tran, P.E. Associate Civil Engineer Attachment: Bid Summary Submitted by: ep a dum Pub' orks Director CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT TITLE 2005-06 BALBOA ISLAND BAYFRONT REPAIRS BID LOCATION: City Clerk's Office - City Hall CONTRACT NO.: C-3796 DATE: 23- Nov-05 TIME: 10:00 AM ENGINEER'S ESTIMATE: $400,000.00 BY: Frank Trail DATE: PROJECT MANAGER: Frank Tran F:IUSERStPBWIShamdlContractslFY 06A6ro5 -06 BALBOA ISLAND BAYFRONT G37961811) SUM- C3796.xls Page 1 • ENGINEER'S ESTIMATE HIGHLAND CONSTRUCTION, INC. FLEMING ENVIRONMENTAL, INC. BEADOR CONSTRUCTION CO. CODY ENGINEERING, INC. ITEM DESCRIPTION QUANTITY UNIT AMOUNT UNIT AMOUNT UNIT AMOUNT UNIT AMOUNT UNIT AMOUNT 1 Mobilization 1 LS $30,000.00 $30,000.00 $35,000.00 $35,000.00 16,400.00 16,400.00 39,080.00 39,080.00 40,000.00 40,000.00 2 Construction Zone and Traffic Control 1 LS $7,000.00 $7,000.00 $10,000.00 $10,000.00 654.00 654.00 6,500.00 6,500.00 10,000.00 10,000.00 3 Miscellaneous Below-Grade Removal, Disposal and Backfill 150 CY $250.00 $37,500.00 $100.00 $15,000.00 212.00 31,800.00 75.00 11,250.00 100.00 15, "'0 4 Remove and reconstruct PCC Sidewalk 23,200 SF $8.00 $185,600.00 $10.00 $232,000.00 9.55 221,560.00 8.00 185,600.00 9.35 216, 0 5 Furnish and Install 6 -inch PVC Pie 2,400 LF $25.00 $60,000.00 $20.00 $48,000.00 18.32 43,968.00 27.50 66,000.00 18.05 43,200.00 6 Furnish and Install Area Drain 25 EA $500.00 $12,500.00 $175.00 $4,375.00 570.00 14 250.00 330.00 8,250.00 250.00 6,250.00 7 Adjust/Reconstruct Existing Manhole to Grade 2 EA $600.00 $1,200.00 $300.00 $600.00 451.00 902.00 825.00 1,650.00 750.00 1,500.00 8 Replace Existing Electrical Pull Box and Cover 30 EA $600.001 $18,000.00 $200.00 $6,000.00 527.00 15,810.00 825.00 24,750.00 300.001 9,000.00 9 Apply Seawall Sealant Below Edge of Coping 3,200 LF $4.00 $12,800.00 $2.00 $6,400.00 2.60 8,320.00 5.00 16,000.00 15.001 48,000.00 10 Coping Joint Sealant Repair 30 EA $500.00 $15,000.00 $250.00 $7,500.00 348.00 10,440.00 370.00 11,100.00 1,000.00 30,000.00 11 Funish and Install Preformed "No Bicycle" Symbol 12 EA $300.00 $3,600.00 $175.00 $2,100.00 575.00 6,900.00 185.00 2,220.00 300.00 3,600.00 12 Surveying Services 1 LS $15,000.00 $15,000.00 $7,500.00 $7,500.00 11,350.00 11,350.00 19250.00 19,250.00 17,500.00 17,500.00 13 As -Built Drawings 1 LS $1,000.00 $1,000.00 $500.00 $500.00 640.00 640.00 1,650.00 1,650.00 1,000.00 1,000.00 EE $400,000.00 LOW 374,975.00 2�NJ 382,994.00 3RD 393,300.00 4TH 442,000.00 F:IUSERStPBWIShamdlContractslFY 06A6ro5 -06 BALBOA ISLAND BAYFRONT G37961811) SUM- C3796.xls Page 1 • DAMON CONSTRUCTION CO. GCI CONSTRUCTION, INC. ZUSSER COMPANY, INC. ALLIANCE STREETWORKS, INC. ITEM DESCRIPTION QUANTITY UNIT AMOUNT UNIT AMOUNT UNIT AMOUNT UNIT AMOUNT 1 Mobilization 1 LS 10,000.00 10,000.00 68,000.00 68,000.00 55,000.00 55,000.00 40,000.00 40,000.00 2 Construction Zone and Traffic Control 1 LS 5,000.00 5,000.00 5,000.00 5,000.00 55,000.00 55,0001)0 70,000.00 70,000.00 3 Miscellaneous Below -Grade Removal, Disposal and Ball 150 CY 150.00 22,500.00 100.00 15,000.00 100.00 15,000.00 250.00 37,500.00 4 Remove and reconstruct PCC Sidewalk 23,200 SF 14.50 336,400.00 11.00 255,200.00 15.00 348,000.00 12.00 278,400.00 5 Furnish and Install 6-inch PVC Pipe 2,400 LF 24.00 57,600.00 32.00 76,800.00 30.00 72,000.00 72.00 172,800.00 6 Furnish and Install Area Drain 25 EA 300.00 7,500.00 400.00 10,000.00 400.00 10,000.00 85.00 2,125.00 7 Ad'ustlReoonstruct Existing Manhole to Grade 2 EA 800.00 1,600.00 1,000.00 2,000.00 1,000.00 2,000.00 1,200.00 2,400.00 8 iReplace Existing Electrical Pull Box and Cover 30 EA 800.00 24,000.00 800.00 24,000.00 200.00 6,000.00 550.00 16,500.00 9 I Seawall Sealant Below Edge of Coping 31200 LF 6.00 19,200.00 10.00 32,000.00 1.00 3,200.00 3.10 9,920.00 10 Coping Joint Sealant Re it 30 EA 500.00 15,000.00 500.00 15,000.00 200.011 6,000.00 275.00 6,250.00 11 Funish and Install Preformed "No Bicycle" Symbol 12 EA 200.00 2,400.00 100.00 1,200.00 200.00 2,400.00 275.00 3,300.00 12 Surveying Services 1 LS 19,750.00 19,750.00 18,000.00 16,000.00 10,000.00 10,000.00 6,000.00 6,000.00 13 As -Built Drawings 1 LS 1,000.00 1,000.00 1,000.00 1,000.00 1,000.00 1,000.00 200.00 200.00 5TH $521,950.00 6TH 523,200.00 7TH 585,600.00 8TH 647,395.00 F:IUSERStPBWIShamdlContractslFY 06A6ro5 -06 BALBOA ISLAND BAYFRONT G37961811) SUM- C3796.xls Page 1 • 0 9 CITY CLERK CITY OF NEWPORT BEACH NOTICE INVITING BIDS Sealed bids may be received at the office of the City Clerk, 3300 Newport Boulevard, Newport Beach, CA 92663 until 10:00 AM on the 23rd of November 2005, at which time such bids shall be opened and read for 2005 -06 BALBOA ISLAND BAYFRONT SIDEWALK & DRAINAGE IMPROVEMENTS Title of Project Contract No. 3796 $400,000 Engineer's Estimate ,8 G. Badum rks Director PLAN HOLDER LIST AVAILABLE ON CITY WEBSITE htto://www.citv.newoort- beach.ca.us CLICK: Online Services • Public Works Contracts Bidding Prospective bidders may obtain one set of bid documents for $20 at the office of the Public Works Department, 3300 Newport Boulevard, Newport Beach, CA 92663 Contractor License Classification(s) required for this project. "A" For further information, call Frank Tran, Project Manager at (949) 644 -3340 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 TABLE OF CONTENTS NOTICE INVITING BIDS ................................ ............................... .......................... Cover INSTRUCTIONS TO BIDDERS ........................................................ ..............................3 BIDDER'S BOND ............................................................................... ..............................5 DESIGNATION OF SUBCONTRACTOR( S) ...................................... ..............................6 TECHNICAL ABILITY AND EXPERIENCE REFERENCES... ......................................... 7 NON - COLLUSION AFFIDAVIT ......................................................... .............................11 DESIGNATION OF SURETIES ........................................................ .............................12 CONTRACTOR'S INDUSTRIAL SAFETY RECORD TO ACCOMPANY PROPOSAL.. 13 ACKNOWLEDGEMENT OF ADDENDA ........................................... .............................15 INFORMATON REQUIRED OF BIDDER .......................................... ............................ .16 NOTICE TO SUCCESSFUL BIDDER .............................................. .............................19 CONTRACT..................................................................................... .............................20 LABOR AND MATERIALS BOND .................................................... .............................26 FAITHFUL PERFORMANCE BOND ................................................ .............................28 PROPOSAL.......................................... ................ :.................................................... PR -1 SPECIAL PROVISIONS ................................................................. ...........................SP -1 E 0 0 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 INSTRUCTIONS TO BIDDERS The following documents shall be completed, executed and received by the City Clerk in accordance with NOTICE INVITING BIDS: INSTRUCTIONS TO BIDDERS BIDDER'S BOND DESIGNATION OF SUBCONTRACTORS CONTRACTOR'S INDUSTRIAL SAFETY RECORD INFORMATION REQUIRED OF BIDDER ALL ADDENDA TO PLANS AND SPECIFICATIONS AS ISSUED BY AGENCY PRIOR TO BID OPENING DATE (if any) TECHNICAL ABILITY AND EXPERIENCE REFERENCES NON - COLLUSION AFFIDAVIT DESIGNATION OF SURETIES PROPOSAL 2. Cash, certified check or cashier's check (sum not less than 10 percent of the total bid price) may be received in lieu of the BIDDER'S BOND. The title of the project and the words "Sealed Bid" shall be clearly marked on the outside of the envelope containing the documents. 3. The City of Newport Beach will not permit a substitute format for the Contract Documents listed above. Bidders are advised to review their content with bonding and legal agents prior to submission of bid. 4. BIDDER'S BOND shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, and (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570. The successful bidder's security shall be held until the Contract is executed. 5. The estimated quantities indicated in the PROPOSAL are approximate, and are given solely to allow the comparison of'total bid prices. 6. Bids are to be computed upon the estimated quantities indicated in the PROPOSAL multiplied by unit price submitted by the bidder. In the event of discrepancy between wording and figures, bid wording shall prevail over bid figures. In the event of error in the multiplication of estimated quantity by unit price, the correct multiplication will be computed and the bids will be compared with correctly multiplied totals. The City shall not be held responsible for bidder errors and omissions in the PROPOSAL. The City of Newport Beach reserves the right to reject any or all bids and to waive any minor irregularity or informality in such bids. Pursuant to Public Contract Code Section 22300, at the request and expense of the Contractor, securities shall be permitted in substitution of money withheld by the City to ensure performance under the contract. The 3 0 0 securities shall be deposited in a state or federal chartered bank in California, as the escrow agent. 8. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the contract. A copy of said determination is available by calling the prevailing wage hotline number (415) 703 -4774, and requesting one from the Department of Industrial Relations. All parties to the contract shall be governed by all provisions of the California Labor Code relating to prevailing wage rates (Sections 1770 -7981 inclusive). Please note, The Davis -Bacon Wage determinations are available at Federal Wage website: http:Uwww.gpo. oov /davisbacon /ca. html 9. The Contractor shall be responsible for insuring compliance with provisions of Section 1777.5 of the Labor Code Apprenticeship requirements and Section 4100 at seq. of the Public Contracts Code, "Subletting and Subcontracting Fair Practices Act ". 10. All documents shall bear signatures and titles of persons authorized to sign on behalf of the bidder. For corporations, the signatures shall be of a corporate officer or an individual authorized by the corporation. For partnerships, the signatures shall be of a general partner. For sole ownership, the signature shall be of the owner. The signature below represents that the above has been reviewed. 746017 CLASS A HAZ B Contractor's License No. & Classification FLEMING ENVIRONMENTAL INC. Bidder f PRESIDENT 4uthorized Sig- hsture/Titie TERRY L. FLEMING, JR. NOVEMBER 22, 2005 Date CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 21)05= 06,j3AL3OA ISLAND AYFRONT REPAIRS CQNTRACT NO_3�•�� B,WER'5 BONA We, the undersigned Principal and Surety, our successors and assigns, exocutors, heirs and administralors, agree to be jointly and severally held and firmly bound to the City of Newport Beach, a charter city, in the principal sum of __Ten Percent Of Amxmt Bid __• _ — Dollars ($ 10% of amt bid_), to be paid and forfeited to the City of Newport Beach if the bid proposal of the undersigned Principal for the conslruclion of 05.06 BALBOA ISLAND BAYFRONT REPAIRS, contract No. 3796 in the City of Newport Beach, is accepted by the City Council of the City of Newport Beach and the proposed contract Is awarded to the Principal, and the Principal fails to execute the Contract Documents in the form(s) prescribed, including the required bonds, and original insurance cedificolcs and endorsements for (lie construction of the project within thirty (30) calendar days after the date of the mailing of "Notification of Award", otherwise this obligation shall become null and void. If the undersigned Principal executing this Bond is executing this Bond as an Indivirdunl, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. Witness our hands this 18th day of ND°Hf�r 2005. Fleming Environmental, Inc. Name of Contractor (Principal) w uthorized SUM reffitie TERRY LZI LEMING,_JR. PRESIDENT 11455 E1 Camino Real San Diego, California 92130 Ted Adamson Attorney-In-Fact Address of Surety Print Name and Title (858) 350-2400 (Notary acknowledgment of Principal & Surety must he attached) 5 Company Profile Company Profile Page 1 of 3 INSURANCE COMPANY OF THE WEST PO BOX 85563 SAN DIEGO, CA 92186 -5563 800 -877 -1111 Agent for Service of Process JAMES III W. AUSTIN, 11455 EL CAMINO REAL SAN DIEGO, CA 92130 -2045 Unable to Locate the Agent for Service of Process? Reference Information NAIC #: NAIC Group #: California Company ID #: Date authorized in California: License Status: Company Type: State of Domicile: 27847 0922 2071 -9 May 17, 1972 UNLIMITED- NORMAL Property & Casualty CALIFORNIA Lines of Insurance Authorized to Transact The company is authorized to transact business within these lines of insurance. For an explanation of any of these terms, please refer to the glossary. http:// cdinswww.insurance.ca.gov /pls /wu co prof/idb co prof utl.get co prof?p EID =5809 01/26/2006 E • Company Profile Page 2 of 3 AIRCRAFT AUTOMOBILE BOILER AND MACHINERY BURGLARY COMMON CARRIER LIABILITY CREDIT DISABILITY FIRE LIABILITY . MARINE MISCELLANEOUS PLATE GLASS SPRINKLER SURETY TEAM AND VEHICLE WORKERS' COMPENSATION Company Complaint Information 0 Company Enforcement Action Documents Comp any.Performance. &. Compariso_n_Data Composite Complaint Studies Want More? Help Me Find _aCompany Representative in My_Area http:// cdinswww .insurance.ca.gov /pls/wu co prof/idb co prof utl.get co prof?p EID =5809 01/26/2006 Company Profile Financial Rating Organizations Last Revised - December 13, 2005 09:17 PM Copyright C California Department of Insurance Disclaimer Page 3 of 3 U • http: / /odinswww.insurance.ca.gov /pis /wu co prof/idb co prof utl.get co prof?p EID =5809 01/26/2006 State of California County of Orange On 11/22/05 before me, Jennifer Martin — Notary Public (DATE) (NAMErrITLE OF OFFICER) Personally appeared Terry L. Fleming. Jr. (NAME(S) OF SIGNER(S)) Personally known to me - OR - & . rw. eoe +oaeooa.e000weooceeeaeeewee+wY ';.. JENNIFER MARTIN D COMM # 1348198 m W - NOTARY PUBLIC - CALIFOflNNa Q ORANGE COUNTY My Commission Expires April 22.2006 x Y oee000eoenoeo� .enoaeerveeoaaaso+eeeeoaweo ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledgement to me that he /she /they executed the same in his /her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. (SEAL) ' ignature t Notary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above CAPACITY CLAIMED BY SIGNER'S ❑ INDIVIDUAL(S) OFFICERS(S) PRESIDENT ❑ PARTNER(s) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY N FACT ❑ TRUSTEE(S) ❑ GUARDt4WCONSERVATOR SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) Fleming Environmental Inc. CAPACITY CLAIMED BY SIGNERS) ❑ INDIVIDUAL(S) ❑ CORPORATE OFFICER(S) (TITLES) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY N FACT ❑ iRUSTEE(S) ❑ GUARDIAWCONSFRVATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) State of California County of Orange On November 18. 2005 before me, Lynn A. Beimer — Notary Public (DATE) (NAME/TITLE OF OFFICER) Personally appeared Ted Adamson (NAME(S) OF SIGNER(S)) Personally known to me OR - LYNN A. BEIMER @My Commission # 1456728 Notary Public - California Orange County Comm. Expires Dec 16, 2007 ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledgement to me that he /she /they executed the same in his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. (SEAL) '1 Sigifature of Notary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Title or Type of Document MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named Above CAPACITY CLAIMED BY SIGNER'S r- INDIVIDUAL(S) 1- CORPORATE OFFICERS(S) C PARTNER(S) [] LIMITED r GENERAL ryj ATTORNEY IN FACT I! TRUSTEE(S) r GUARDIAWCONSSWATOR r OTHER SIGNER IS REPRESENTING: (Name of Person(s) or Entity((es) CAPACITY CLAIMED BY SIGNER(S) 17 16DNICUAL(S) CORPORATE OFFICER(S) (TITLES) r PARTNERS) LIMITED GENERAL ATTORNEY IN FACT [" TRUSTEE(S) r GUARDIAWCONSERVATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) No. 0002059 ICW GROUP Power of Attorney Insurance Company of the West The Explorer Insurance Company Independence Casualty and SuiWy Company KNOW ALL MEN BY THESE PRESENTS: That Insurance Company of the West, a Corporation duly organized under the laws of the State of California, The Explorer Insurance Company, a Corporation duly organized under the laws of the State of Arizona, and Independence Casualty and Surety Company, a Corporation duly organized under the laws of the State of Texas, (collectively referred to as the "Companies "), do bereby appoint TED ADAMSON, NORMAN PIERCE, RICHARD L. WELLS their true and lawful Attorney(s)-in-Fact with authority to date, execute, sign, seal, and deliver on behalf of the Companies, fidelity and surety bonds, undertakings, and other similar contracts of suretyship, and any related documents. In witness whereof, the Companies have caused these presents to be executed by its duly authorized officers this 16th day of January, 2001. eourerro�, tNSr/q ��� INSURANCE COMPANY OF THE WEST aronrow� i oe� /000 "'t +rP'fp� y + THE EXPLORER INSURANCE COMPANY �f o (f Kl INDEPENDENCE CASUALTY AND SURETY EpI a ;e r a� COMPANY John H. Craig, Assistant Secretary John L. Hannum, Executive Vice President State of California } County of San Diego as. On August 29, 2005, before me, Francis Fafaul, Notary Public, personally appeared John L. Hannum and John H. Craig, personally known m the to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument, the entity upon behalf of which the persons acted, executed the instrument. Witness my hand and official seal. FRAN= FAFAUL COMM. #11471 sy81N � COUNW FE Fll,i23.. Francis Fafaul, Notary Public RESOLUTIONS This Power of Attorney is granted and is signed, sealed and notarized with facsimile signatures and seals under authority of the following resolutions adopted by the respective Boards of Directors of each of the Companies: "RESOLVED: That the President, an Executive or Senior Vice President of the Company, together with the Secretary or any Assistant Secretary, are hereby authorized to execute Powers of Attorney appointing the person(s) named as Attomey(s) -in -Fact to date, execute, sign, seal, and deliver on behalf of the Company, fidelity and surety bonds, undertakings, and other similar contracts of suretyship, and any related documents. RESOLVED FURTHER: That the signatures of the officers making the appointment, and the signature of any officer certifying the validity and current status of the appointment, tray be Facsimile representations of those signatures; and the signature and seal of any notary, and the seal of the Company, may be facsimile representations of those signatures and seals, and such facsimile representations shall have the same force and effect as if manually affixed. The facsimile representations referred to herein tray be affixed by stamping, printing, typing, a photocopying." CERTIFICATE I, the undersigned, Assistant Secretary of Insurance Company of the West, The Explorer Insurance Company, and Independence Casualty and Surety Company, do hereby certify that the foregoing Power of Attorney is in full force and effect, and has not been revoked, and that the above resolutions were duly adopted by the respective Boards of Directors of the Companies, and are now in full force. IN WITNESS WHEREOF, I have set my hand this 18th day of Novenbe>_ 11 `� John H. Craig, Assistant Secretary To verify the authenticity of this Power of Attorney you may call 1-500 -877 -1111 and ask for the Surety Division. Please refer to the Power of Attorney Number, the above named individual(s) and details of the bond to which the power is attached. For information or filing claims, please contact Surety Claims, IC W Group, 11455 El Camino Real, San Diego, CA 92130 -2045 or call (858) 350 -2400. CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 DESIGNATION OF SUBCONTRACTOR(S) State law requires the listing of all subcontractors who will perform work in an amount in excess of one -half of one percent of the Contractor's total bid. If a subcontractor is not listed, the Contractor represents that he /she is fully qualified to and will be responsible for performing that portion of the work. Substitution of subcontractors shall be made only in accordance with State law and /or the Standard Specifications for Public Works Construction, as applicable. Pursuant to Public Contract Code Section 22300 appropriate securities may be substituted for any monies to be withheld to ensure performance under the Contract. The Bidder, by signing this designation, certifies that bids from the following subcontractors have been used in formulating the bid for the project and that these subcontractors will be used subject to the approval of the Engineer and in accordance with State law. No changes may be made in these subcontractors except with prior approval of the City of Newport Beach. (Use additional sheets if needed) Subcontractor's Information Bid Item Description of Work %of Number Total Bid Name: Address: Phone: State License Number: Name: Address: Phone: State License Number. Name: Address: Phone: State License Number: FLEMING ENVIRONMENTAL INC. Bidder 4 ;�e PRESIDENT A thoriz itle TERRY L. FLEMING, JR. CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 TECHNICAL ABILITY AND EXPERIENCE REFERENCES Contractor must use this form!!! Please print or type. Bidders Name FLEMING ENVIRONMENTAL INC. FAILURE OF THE BIDDER TO PROVIDE ALL REQUIRED INFORMATION IN A COMPLETE AND ACCURATE MANNER MAY BE CONSIDERED NON - RESPONSIVE. For all public agency projects you have worked on (or are currently working on). in the past 2 years in excess of $15,000, provide the following information: No. 1 Project Name /Number SITE IMPROVEMENTS FOR THE WASTE MANAGEMENT CENTER Project Description ASPHALT, BLOCK WALL ELECTRICAL AND FENCING Approximate Construction Dates: From 10 Agency Name CITRUS COLLEGE ONGOING Contact Person MICHAEL HARRINGTON Telephone( )(626) 914 -8691 $376,527.00 Original Contract Amount $ Final Contract Amount $ If final amount is different from original, please explain (change orders, extra work, etc.) Did you file any claims against the Agency? Did the Agency file any claims against you /Contractor? If yes, briefly explain and indicate outcome of claims. 7 0 0 No. 2 Project Name /Number COMMERCE WELL NO. 4L Project Description GRANNULAR ACTIVATED TREATMENT SYSTEM Approximate Construction Dates: From 9/05 TO: ONGOING Agency Name WATER REPLENISHMENT DISTRICT OF SOUTHERN CALIFORNIA Contact Person CHARLENE KING Telephone ( ) ( 562) 921 -5521 $469,900.00 ' Original Contract Amount $ Final Contract Amount $ If final amount is different from original, please explain (change orders, extra work, etc.) Did you file any claims against the Agency? Did the Agency file any claims against you/Contractor? If yes, briefly explain and indicate outcome of claims. NO No. 3 Project Name /Number FONTANA TRANSPORTATION MAINTENANCE YARD RECONSTRUCTION Project Description DEMOLITION, EXCAVATION, CONCRETE,, PREFABRICATED BLDG INSTALL. Approximate Construction Dates: From 6/05 Agency Name COUNTY OF SAN BERNARDINO ONGOING Contact Person TERRI THARP Telephone ( ) ( 909) 387 -5054 $344,325.00 Original Contract Amount $ Final Contract Amount $ If final amount is different from original, please explain (change orders, extra work, etc.) Did you file any claims against the Agency? Did the Agency file any claims against you /Contractor? If yes, briefly explain and indicate outcome of claims. NO a 0 No. 4 Project Name /Number SPLASH PAD is STRUCTION AT SLAUSON PARK Project Description CONSTRUCT SPLSH PAD, EXCAVATION, CONCRETE, ELECTRICAL Approximate Construction Dates: From 07/05 To: 9/1/05 Agency Name CITY OF AZUSA Contact Person JOE JACOBS Telephone ( ) ( 626) 812 -5280 $181,000.00 Original Contract Amount $ Final Contract Amount $ 181,000.00 If final amount is different from original, please explain (change orders, extra work, etc.) Did you file any claims against the Agency? Did the Agency file any claims against you /Contractor? If yes, briefly explain and indicate outcome of claims. NO No. 5 Project Name /Number SMITH CORRECTIONAL FACILITY Project Description FURNISH & INSTALL PRE — ENGINEERED STEEL BUILDING Approximate Construction Dates: From 11/05 To: ONGOING Agency Name COUNTY OF RIVERSIDE Contact Person RITA MEDELLIN Telephone ( ) ( 951 $135,041.00 Original Contract Amount $ Final Contract Amount 955 -4939 If final amount is different from original, please explain (change orders, extra work, etc.) Did you file any claims against the Agency? Did the Agency file any claims against you /Contractor? If yes, briefly explain and indicate outcome of claims. NO Ili 0 0 No. 6 Project Name /Number REHABILITATION OF GROUND WATER PUMP STATION Project Description REHABILITATION OF EXISTING GROUND WATER PUMP Approximate Construction Dates: From 7/05 To: 10/05 Agency Name CITY OF CERRITOS Contact Person RASH SYED Telephone ( ) ( 562) 916 -1221 $382,772.00 Original Contract Amount $ Final Contract Amount $ If final amount is different from original, please explain (change orders, extra work, etc.) Did you file any claims against the Agency? Did the Agency file any claims against you /Contractor? If yes, briefly explain and indicate outcome of claims. NO Attach additional sheets if necessary. Attach to this Bid the experience resume of the person who will be designated as General Construction Superintendent or on -site Construction Manager for the Contractor. Upon request, the Contractor shall attach a, financial statement and other information sufficiently comprehensive to permit an appraisal of ontractor's current financial conditions. FLEMING ENVIRONMENTAL INC. PRESIDENT Bidder Authorized 0 atu-re-7Title TERRY L. FLEMING, JR. 10 • • KEY PERSONNEL RESUMES FOR KEY PERSONNEL Terry L. Fleming Jr. Owner/Project Executive Attended University of Ar¢ona where his studies focused on business management and eking. Mr. Fiem Q has enjoyed years of experience in the construction and environmental industries. His experience began as a laborer in the field and from there he progressed into a field management position. Soon after that he found his way into the office and began project managing and has since moved into his Project Executive role within the company. His knowledge and understanding of field technology rivals his fiscal approach W management maintaining efficiency without compromising perfamrance. Mr. Reining is an innovative and aggressive manages and a valued leader for the company. The factor of his leadership will be what makes us successful with this project. Jenni6er iMatin Quality Control Officer Has served the company since inception and manages the company's quality control as well as the administrative, accounting, and contract compliance matters. A graduate of Cal State Long Beach, Ms. Martin has continued to advance her education ielatktg to environments laws and new environmental compliance regulations. Her duties have included quality control programs . contract compliance, project management poled coordinator, EEO Officer, and dispatcher. Ms. Martin has possessed the ability to bring experienced management strength and multifaceted skills to our corporate environment. For this project it will be her experience in both the field and office that will benefit and become a key rote relating to tut projects responsibilities. Patty Fleming Health and Safety Official Has worked in the constructionAdemkipment industry, both in private industry and for public agencies. She has created policies and procedures required for the environmental and demobon process. She concentrates on pemut requirements for each city, jurisdiction, environmental agency, fie department and OSHA criteria to ensure compliance with every detail of the law. Ms. Fleming has established and abides by our current Health and Safety Plan assuring the fields participation. She utgzes ties managerial, mgions, adirninistrative and business development talents as a support to ownership and top management Her skills in Health and Safety as well as project coordination are of the utmost importance to make this project successful. Ronald Ferft FieldlSite Superintendent Ron has been with the company since inception and is skilled in all areas of construction and construction related services. Mr. Ferris is the company's senior mechanical and piping manager with direct field management responsibilities for all projects involving mechanical and/or piping phases He is also certified by all the major PWng and petroleum tank manufacturers for irrtistallatorh and system configuration design. Mr. Ferris also supervises the company's heavy equipment operation and general maintenance. He is an effective manager and has a proven track record relating to project closure and projects completed under his supervision. His ability, to work together with the General Superintendent, again, is an asset Nor the project to keep on schedule. • 0 FLEMING ENVIRONMENTAL INCORPORATED 6130 VALLEY ViEw SrREEr' BUENA PARK, CA 90620 (714) 2280935 " FAx (714) 228 -9231 LICENSE #746017 KEY PERSONNEL ROLES AND RESPONSIBILITIES MATRIX Terry L. Fleming Jr. OwnedProject Executive Oversees the entire project from both a field as well as an office perspective . His role in this project will be to see that it runs smoothly between both the Whittier Union High School District and Fleming Environmental Inc. personnel. Mr. Fleming's functions will include scheduling, ordering of equipment, corresponding with the representatives, overseeing field activities, and final closure on the project __,1T T 'i Responsive for implementing the Quality Control Program. Her role is to develop a mutual understanding of the QC details, including forms to be used for documentation, administration for on4te and off -site work, and the coordination of the Contradoes management, production and QC personnel with the Contracting Officer. Ms. Martin's functions will include attending QC Plan meetings, perform submittal review and approval for Fleming Environmental Inc., ensure testing is perfamad and prepare documentation as required in the contract Patty Fleming Project CoordinatortPurchasing O(ficedSirlety Officer Coordinates all field activities. Communicating with field and project management, she ascertains upcoming needs based on scheduled work and utit m Fleming owned and vendor supplied resources to meet those project needs. Developing valuable reports with vendors, service provides, and regulatory inspectors, Miss Fleming has proven herself invaluable at maintaining field productivity and project schedules. He constitcction service background, professional know how, and personable demeanor, make her an effective project coordinator and intrinsic piece of the Fleming Environmental team. As the Safety Officer, Miss Fleming is responsible for maintaining Safety among the field and office. Her role is to make sure the field is in compliance with the regulatory agencies as well as to complete paperwork in a timely manner and correspond with the County to keep the project rum" efficiently. Ms. Flemings functions include submittals, permitting (City, Fire, County Environmental Health, AGMD, OSHA), Health and Safety Plan (site specific), dispatching of equipment and material, scheduling inspections, and closure reports. Ronald Ferris FfeldlSite Superintendent He is responsible for on -site management. His role is to complete this project with quality work and in a tiny manner by organizing and directing the workers on a daffy basis. Mr. Ferris's functions include knowledge of plans and specs, scheduling of personnel, equipment and material along with the general superintendent, on -site meetings with the Districts personnel, and safety on the jobsite. Frank Cicero Field Superir*endarrt, C.P.S.I. (Certified Playground Safety inspector) Besides holding his own Class A Contractor's license, Mr. Cicero has received his N.P.S.I. /C.P.S.I. and many manufacturers' certifications. A skilled machine operator and play equipment installer in his own right, Mr. Cicero Wads his crews with a town approach, able and willing to perform any task he'd ask of another. Seeing the finished product as a direct reflection of himself and company, coupled with a friendly outgdng demeanor, Frank adds an intangible quality to projects under his supervision. Inspectors and facilities personnel appreciate his professional, "work -vv th" approach. His knowledge of construction methods, and management of his teams, gives diem effiaent "coned the first time projects. M • CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 NON - COLLUSION AFFIDAVIT State of California ) ) ss. County of ORANGE ) TERRY L. FLEMING, JR . being first duly sworn, deposes and says that he or she is PRESIDENT of FLEMING ENVIRONMENTAL INC. , the party making the foregoing bid; that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that party making the foregoing bid; that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. I declare under penalty of perjury of the laws of the e f California that the foregoing is true and correct. FLEMING ENVIRONMENTAL INC. PRESIDENT Bidder uthorized Sig ature/Title TERRY L. FLEMING, JR. Subscribed and sworn to before me this 22ND day of NOVEMBER 2005. [SEAL] Nota Public JENNIFER MARTIN My Commission Expires: 4/22/06 T ♦ONOO�N�N9N����M��/�4�N��liN JENNIFER MARTIN COMM # 1348198 D NOTARY PUBLIC- CALIFORNIA M Q ORANGE COUNTY jj Ny Comnession Expires April 22, 2006 899A(.�it'+ ...n sw�An -..... rt¢ , rv9•'•pM v 90(.LIO�NH 11 • • CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 DESIGNATION OF SURETIES Bidders name FLEMING ENVIRONMENTAL INC. Provide the names, addresses, and phone numbers for all brokers and sureties from whom Bidder intends to procure insurance and bonds (list by insurance /bond type): SMITH NEWMAN AND ADAMSON INSURANCE AGENCY 1800 EAST LAMBERT ROAD, SUITE 215 BREA, CA 92821 (714) 257 -9644 INSURANCE COMPANY OF THE WEST P.O. BOX 85563 SAN DIEGO, CA 92186 (858) 350 -2400 12 • • CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 CONTRACTOR'S INDUSTRIAL SAFETY RECORD TO ACCOMPANY PROPOSAL Bidders Name FLEMING ENVIRONMENTAL INC. Record Last Five (5) Full Years Current Year of Record The information required for these items is the same as required for columns 3 to 6, Code 10, Occupational Injuries, Summary— Occupational Injuries and Illnesses, OSHA No. 102. 13 Current Record Record Record Record Record Yearof for for for for for Record 2004 2003 2002 2001 2000 Total 2005 No. of contracts 55 16 8 17 13 33 142 Total dollar Amount of Contracts (in 17,464 2,849 3,180 3,654 1,708 2,652 31,507 Thousands of $ No. of fatalities 0 0 0 0 0 0 0 No. of lost Workday Cases 0 0 0 0 0 0 0 No. of lost workday cases involving permanent transfer to another job or termination of 0 0 0 0 0 0 0 employ ment The information required for these items is the same as required for columns 3 to 6, Code 10, Occupational Injuries, Summary— Occupational Injuries and Illnesses, OSHA No. 102. 13 Legal Business Name of Bidder 0 FLEMING ENVIRONMENTAL INC. Business Address: 6130 VALLEY VIEW ST. BUENA PARK, CA 90620 Business Tel. No.: ( 714) 228 -0935 State Contractor's License No. and Classification: 746017 CLASS A HAZ B Title PRESIDENT The above information was compiled from the records that are available to me at this time and I declare under penalty of perjury that the information is true and accurate within the limitations of those records. Signature of bidder Date Title Signature of bidder Date Title Signature of bidder Date Title Signature of bidder Date Title TERRY L. FLEMING, JR. If bidder is an individual, name and signature of individual must be provided, and, if he is doing business under a fictitious name, the fictitious name must be set forth. If bidder is a partnership or joint venture, legal name of partnership /joint venture must be provided, followed by signatures of all of the partners /joint ventures or of fewer than all of the partners /joint ventures if submitted with evidence of authority to act on behalf of the partnership /joint venture. If bidder is a corporation, legal name of corporation must be provided, followed by notarized signatures of the corporation President or Vice President or President and Secretary or Assistant Secretary, and the corporate seal. Signatures of partners, join venturers, or corporation officers must be acknowledged before a Notary Public, who must certify that such partners/joint venturers, or officers are known to him or her to be such, and, in the case of a corporation,. that such corporation executed the instrument pursuant to its bylaws or a resolution of its Board of Directors. 14 State of California County of Orange On 11/22/05 before me, Jennifer Martin — Notary Public (DATE) (NAME/TITLE OF OFFICER) Personally appeared Terry L. Fleming, Jr. (NAME(S) OF SN3NER(S)) Personally known to me - OR - 04ue .eesNN9e9eMa4ee.•oe09e94.•aN 7ENNIFBR MARTIN COMM # 1348196 m W, •••'• NOTARY PUBLIC - CALIFORNIA Q ORANGECOUNTY Mvcnmmies Erpirc April 22.20M x Y99 9. 4? e00 ee0e^ ebl4 'i':: ^��'>'iY ^'+nei -0e99e01•i9 ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledgement to me that he/she /they executed the same in his /her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. (SEAL) Signature 11 Notary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Title or Type of Document MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of Document DESCRIBED AT RIGHT: Signer(s) Other Than Named Above CAPACITY CLAIMED BY SIGNER'S ❑ INDNIDUkL(S) ❑p CORPORATE OFFICERS(S) PRESIDENT ❑ PARTNERS) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY IN FACT ❑ TRUSTERS) ❑ GUARDIAN'OONSERVATOR ❑ OTHER SIGNER IS REPRESENTING: (Name of Person(s) or Entity(es) Fleming Environmental Inc. CAPACITY CLAIMED BY SIGNER(S) ❑ INDIVIDUAL(S) ❑ CORPORATE OFFICER(S) (TITLES) ❑ PARTNER(S) ❑ UMrrED ❑ GENERAL ❑ ATTORNEY IN FACT ❑ TRUSTEE(S) ❑ GLARDIANICONSERVATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) 0 0 STATE OF CAL FORMA COUNTY OF ss. On this � day ���oof ___ __ CCCCiA J %1JJJ , 200AFbefore me, '12 �✓ y n �S a Notary public in and for the State of California, personally appeared ✓ e n n t to r PL49 e-t i-tn. (or proved on the basis of satisfactory evidence) to be the personWwhose name' is /are subscribed to the within instrument and acknowledged to me that ire /she /dwrexecuted the same in {+is/her /their authorized capacity(t4, and that by4tis/her /their signatureD4 on the instrument the perso" or the ent!!3 � behalf of which the personal acted, executed the instrument. and official oagum c i- - � - -- •'/ -' - v a v •� - - - KIL CASEY My mission expires / ���08 C f Notay PuOranMy Comm. E 0 • CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 ACKNOWLEDGEMENT OF ADDENDA Bidders name FLEMING ENVIRONMENTAL INC. The bidder shall signify receipt of all Addenda here, if any, and attach executed copy of addenda to bid documents: Addendum No. NONE 15 0 0 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 INFORMATION REQUIRED OF BIDDER Bidder certifies under penalty of perjury under the laws of the State of California that the following information is true and correct: Name of individual Contractor, Company or Corporation: FLEMING ENVIRONMENTAL INC. Business Address: 6130 VALLEY VIEW STREET BUENA PARK, CA 90620 -1030 Telephone and Fax Number:. ( 714) 228 -0935 ( 714) 228 -9231 FAX California State Contractor's License No. and Class: 746017 CLASS A HAZ B (REQUIRED AT TIME OF AWARD) Original Date Issued: 2/18/98 Expiration Date: 2/28/06 List the name and title /position of the person(s) who inspected for your firm the site of the work proposed in these contract documents: FRANK CICERO ESTIMATOR The following are the names, titles, addresses, and phone numbers of all individuals, firm members, partners, joint ventures, and company or corporate officers having a principal interest in this proposal: Name Title Address Telephone TERRY L. FLEMING, JR. PRESIDENT /TREASURER (714) 228 -0935 6130 VALLEY VIEW STREET BUENA PARK, CA 90620 -1030 JENNIFER MARTIN VICE PRESIDENT /SECRETARY (714) 228 -0935 6130 VALLEY VIEW STREET BUENA PARK, CA 90620 -1030 Corporation organized under the laws of the State of CALIFORNIA 16 0 0 The dates of any voluntary or involuntary bankruptcy judgments against any principal having an interest in this proposal are as follows: All company, corporate, or fictitious business names used by any principal having interest in this proposal are as follows: NONE For all arbitrations, lawsuits, settlements or the like (in or out of court) you have been involved in with public agencies in the past five years (Attach additional Sheets if necessary) provide: Provide the names, addresses and telephone numbers of the parties; NONE Briefly summarize the parties' claims and defenses; NONE Have you ever had a contract terminated by the owner /agency? If so, explain. NONE Have you ever failed to complete a project? If so, explain. NONE For any projects you have been involved with in the last 5 years, did you have any claims or actions by any outside agency or individual for lab ompliance (i.e. failure to pay prevailing wage, falsifying certified payrolls, etc.)': No Are any claims or actions unresolved or outstanding? Yes No 17 0 0 If yes to any of the above, explain. (Attach additional sheets, if necessary) Failure of the bidder to provide ALL requested information in a complete and accurate manner may be considered non - responsive. FLEMING ENVIRONMENTAL INC Bidder TERRY L. FLEMING, JR. (Print name of Owner or President of Co rpo n /Company) I PRESIDENT Authorized Signature/Title PRESIDENT Title NOVEMBER 22, 2005 Date Subscribed and sworn to before me this 22ND day of NOVEMBER , 2005. [SEAL] NOTARY PUBLIC COMM k 1348198 NOTARY PUBLIC - CALIFORNIA ORANGE COUNTY Commission Exp'u�, Apnl22, 2N6 if: 0 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 NOTICE TO SUCCESSFUL BIDDER The following Contract Documents shall be executed and delivered to the Engineer within ten (10) days (not including Saturday, Sunday and Federal holidays) after the date shown on the "Notification of Award" to the successful bidder: • CONTRACT WITH REQUIRED INSURANCE CERTIFICATES AND ENDORSEMENTS • LABOR AND MATERIALS PAYMENT BOND • FAITHFUL PERFORMANCE BOND The City of Newport Beach will not permit a substitute format for these Contract Documents. Bidders are advised to review their content with bonding, insuring and legal agents prior to submission of bid. Original Certificate(s) of Insurance, General Liability Insurance Endorsement, and Automobile Liability Insurance Endorsement shall be provided as required by the Contract documents and delivered to the Public Works Department within ten (10) working days after the date shown on the Notification of Award to the successful bidder. The Labor and Materials Payment Bond and Faithful Performance Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, and (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570. Pursuant to Public Contract Code Section 22300, appropriate securities may be substituted for any monies to be withheld to ensure performance under the Contract. Insurance companies affording coverage shall be (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, and (2) assigned Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property - Casualty. Coverages shall be provided as specified in the Standard Specifications for Public Works Construction, except as modified by the Special Provisions. Certificates. of Insurance and additional insured endorsements shall be on the insurance company's forms, fully executed and delivered with the Contract. The Notice to Proceed will not be issued until all contract documents have been received and approved by the City. 19 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 CONTRACT THIS AGREEMENT, entered into this _ day of , 2006, by and between the CITY OF NEWPORT BEACH, hereinafter "City," and FLEMING ENVIRONMENTAL, INC. hereinafter "Contractor," is made with reference to the following facts: WHEREAS, City has advertised for bids for the following described public work: 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS Contract No. 3796 WHEREAS, Contractor has been determined by City to be the lowest responsible bidder and Contractor's bid, and the compensation set forth in this Contract, is based upon Contractor's careful examination of all Contract documents, plans and specifications. NOW, THEREFORE, City and Contractor agree as follows: A. CONTRACT DOCUMENTS The complete Contract for the Project includes all of the following documents: Notice Inviting Bids, Instructions to Bidders, Proposal, Bidder's Bond, Non - Collusion Affidavit, Faithful Performance Bond, Labor and Materials Payment Bond, Permits, General Conditions, Standard Special Provisions and Standard Drawings, Plans and Special Provisions for Contract No. 3796, Standard Specifications for Public Works Construction (current adopted edition and all supplements) and this Agreement, and all modifications and amendments thereto (collectively the "Contract Documents "). The Contract Documents comprise the sole agreement between the parties as to the subject matter therein. Any representations or agreements not specifically contained in the Contract Documents are null and void. Any amendments must be made in writing, and signed by both parties in the manner specified in the Contract Documents. B. SCOPE OF WORK Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services required for the Project: All of the work to be performed and materials to be furnished shall be in strict accordance with the provisions of the Contract Documents. Contractor is required to perform all activities, at no extra cost to City, which are reasonably inferable from the Contract Documents as being necessary to produce the intended results. 20 0 0 C. COMPENSATION As full compensation for the performance and completion of the Project as required by the Contract Documents, City shall pay to Contractor and Contractor accepts as full payment the sum of Three Hundred Eighty -Two Thousand, Nine Hundred Ninety -Four and 00100 ($382,994.00). This compensation includes: (1) Any loss or damage arising from the nature of the work, (2) Any loss or damage arising from any unforeseen difficulties or obstructions in the performance of the work, (3) Any expense incurred as a result of any suspension or discontinuance of the work, but excludes any loss resulting from earthquakes of a magnitude in excess of 3.5 on the Richter Scale and tidal waves, and which loss or expense occurs prior to acceptance of the Work by City. D. NOTICE OF CLAIMS Unless a shorter time is specified elsewhere in this Contract, before making its final request for payment under the Contract Documents, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Contract. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Contract except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. E. WRITTEN NOTICE Any written notice required to be given under the Contract Documents shall be performed by depositing the same in the U.S. Mail, postage prepaid, directed to the address of Contractor and to City, addressed as follows: CITY City of Newport Beach Public Works Department 3300 Newport Boulevard Newport Beach, CA 92663 Attention: Frank Tran, PE (949) 644 -3340 F. LABOR CODE 3700 LIABILITY INSURANCE hereby certifies: CONTRACTOR FLEMING ENVIRONMENTAL 133 N. Pixley Street Orange, CA 992868 714 -228 -0935 714 - 228 -9231 Fax Contractor, by executing this Contract, "I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or undertake self - insurance in accordance with the provisions of the Code, and I will comply with such provisions before commencing the performance of the work of this Contract." G. INSURANCE Insurance is to be placed with insurers with a Best's rating of no less than A:VII and insurers must be a California Admitted Insurance Company. Contractor shall furnish City with original certificates of insurance and with original endorsements effecting coverage required by this Contract. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that 21 0 r insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at anytime. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Contractor, his agents, representatives, employees or subcontractors. The cost of such insurance shall be included in Contractor's bid. 1. Minimum Scope of Insurance Coverage shall be at least as broad as: a) Insurance Services Office Commercial General Liability coverage "occurrence" form number CG 0002 (Edition 11/85) or Insurance Services Office form number GL 0002 (Edition 1/73) covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. b) Insurance Services Office Business Auto Coverage form number CA 0002 0287 covering Automobile Liability, code 1 "any auto" and endorsement CA 0029 1288 Changes in Business Auto and Truckers Coverage forms - Insured Contract. c) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. 2. Minimum Limits of Insurance Coverage limits shall be no less than: a) General Liability: $1,000,000.00 combined single limit per occurrence for bodily injury, personal injury and property damage. If Commercial Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this projectllocation or the general aggregate limit shall be twice the required occurrence limit. b) Automobile Liability: $1,000,000.00 combined single limit per accident for bodily injury and property damage. c) Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability. 3. Deductibles and Self- Insured Retentions Any deductibles or self- insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce ow eliminate such deductibles or self- insured retentions as respects City, its officers, officials, employees and volunteers; or Contractor shall procure a bond guaranteeing payment of losses and related investigations, clairn administration and defense expenses. 22 • • 4. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: a) General Liability and Automobile Liability Coverages City, its officers, agents, officials, employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees or volunteers. ii. Contractor's insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its officers, officials, employees and volunteers. Any insurance or self- insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its officers, agents, officials, employees and volunteers. iv. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. v. The insurance afforded by the policy for contractual liability shall include liability assumed by contractor under the indemnification /hold harmless provision contained in this Contract. b) Workers' Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against City, its officers, agents, officials, employees and volunteers for losses arising from work performed by Contractor for City. c) All Coverages Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, rescinded by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. All of the executed documents referenced in this contract must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bonds documentation. 5. Acts of God Pursuant to Public Contract Code Section 7105, Contractor shall not be responsible for the repairing and restoring damage to Work, when damage is determined to have been proximately caused by an Act of God, in excess of 5 percent of the Contract 23 • 0 amount provided that the Work damaged is built in accordance with the plans and specifications. 6. Right to Stop Work for Non - Compliance City shall have the right to direct the Contractor to stop work under this Agreement and /or withhold any payment(s), which become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. H. RESPONSIBILITY FOR DAMAGES OR INJURY City and all officers, employees and representatives thereof shall not be responsible in any manner: for any loss or damages that may happen to the Work or any part thereof; for any loss or damage to any of the materials or other things used or employed in performing the Work, for injury to or death of any person either workers or the public; or for damage to property from any cause arising from the construction of the work by Contractor, or its subcontractors, or its workers, or anyone employed by it. 2. Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's work on the Project, or the work of any subcontractor or supplier selected by the Contractor. 3. Contractor shall indemnify, hold harmless, and defend City, its officers and employees from and against (1) any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all acts or omissions of Contractor, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Contract; (2) use of improper materials in construction of the Work; or, (3) any and all claims asserted by Contractor's subcontractors or suppliers on the project, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. Contractor shall not be required to indemnify City from the sole negligence or willful misconduct of City, its officers or employees. 4. To the extent authorized by law, as much of the money due Contractor under and by virtue of the Contract as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 5. Nothing in this article, nor any other portion of the Contract Documents shall be construed as authorizing any award of attorneys' fees in any action to enforce the terms of this Contract, except to the extent provided for in H.3, above. 6. The rights and obligations set forth in this Article shall survive the termination of this Contract. . EFFECT OF CONTRACTOR'S EXECUTION Execution of this Contract and all other Contract Documents by Contractor is a representation that Contractor has visited the Project Site, has become familiar with the local conditions under which the work is to be performed, and has correlated all relevant observations with the requirements of the Contract Documents. J. CONFLICT If there is a conflict between provisions of this Contract and any other Contract Document, the provisions of this Contract shall prevail. 24 0 • K. WAIVER A waiver by City or any term, covenant, or condition in the Contract Documents shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. IN WITNESS WHEREOF, the parties hereto have caused this contract to be executed the day and year first written above.a ATTEST: CITY CLERK APPROVED AS TO FORM: ON C. HARP Assistant City Attorney 25 CI U FLEMING ENVIRONMENTAL By: ✓ (Co orate Officer) Title: President Print Name: Terry L. Fleming Jr. By: (Financial Officer) Title: Treasurer Print Name: Terry L. Fleming Jr. State of California County of Orange On 213/06 before me, Jennifer Martin — Notary Public (DATE) (NAMEfTITLE OF OFFICER) Personally appeared Terry L. Fleming, Jr. (NAME(S) OF SIGNER(S)) i Personally known to me - OR - JENNIFIE tAIti it COMM # 1348198 n U NOTARY PUBLIC - CALIFORNIA Q ORANGE COUNTY J My Cormission Expires April 22.2:¢6 ❑ Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledgement to me that he /she /they executed the same in his /her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. (SEAL) ' gnature Of Notary Public ATTENTION NOTARY The information requested below and in the column to the right is OPTIONAL. Recording Of this document is not required by law and is also optional. It could, however, prevent Fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above CAPACITY CLAIMED BY SIGNER'S ❑ INDIVIDUAL(S) ❑ CORPORATE OFFICERS(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY IN FACT ❑ TRUSTEE(S) ❑ GUARDIANCONSERVATOR SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) Fleming Environmental Inc. CAPACITY CLAIMED BY SIGNER(S) ❑ INDIVIDUAL(S) ❑ CORPORATE OFFICER(S) (TITLES) ❑ R+RTNER(s) ❑ LIMrrED ❑ GENERAL ❑ ATTORNEY N FACT ❑ TRUSTEE(s) ❑ GUARDIAWCONSERVATOR OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(ies) nFOOM Armstrong /Robitaille Full 1010 680 Langsdorf Drive #100 P.O. Box 34009 Fullerton, CA 92834 -9409 Fleming Environmental Inc. 6130 Valley View Street Buena Park, CA 90620 COVERAGES DATE ,TIE OF LIABILITY INSIIRANCE 21310(6MIDDnv) THIS CERTIFICA7.W ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURER A. Evanston Insurance (:0. INSURER a: General Insurance Company of America_ INSURER C: Safeco Insurance Co. of America INSURER D. Hartford Fire insurance Company INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR-)— - -- ' -- - - - - -- -- PODGY EFFECTIVE POLICY EXPIRE - - -" —� - �- LTR TYPE OF INSURANCE POLICY NUMBER . DATE MWODNY I DATE MMJDOIYY LIMITS A ; GENERAL LIABILITY OSPKGO1104 109/01105 09/01/06 �EACHOCCURRENCE LIX COMMERCIALGENERAL LIABILITY �iS2000,000 FIRE DAMAGE (Anyone fire) �S50,00ii CLAIMS MADE X OCCUR MED EXP (Any one person) Y5,000 X I$1 0,000 BI1PD �DeducVClaim T _ 1 PERSONAL 8 ADV INJURY $2000,000 I X GENERAL AGGREGATE I52400tO00 GEML AGGR EGAIE L IM IT APPL IE_S PER PRODUCTS .C21VFIOP AGG_ s2,000,000 ' X PET POLICY LOC B AUTOMOBILE LIABILITY 124CCD9938910 09101105 09/01/06 COMBINED SINGLE LIMIT $1,000,000 X ;ANY AUTO I (Ea acdtlem) �II $ ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS Pon (Pet e, person) X HIRED AU70S BODLLY X NON -OWNED AUTOS {Per eccitlenQ do'n, �$ 'PROPERTY - -- -- DAMAGE $ ,(Pet acddeM) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT S ANY AUTO 1 OTHER THAN -_- EA ACC 1 $ + $ AUTO ONLY: AGO C L EXCESS LIABILITY 01XS7431841D 09112!05 09/01/06 EACH OCCURRENCE $5, 000,000 �X OCCUR ❑CLAIMS MADE 'f .._., Excess Auto Only AEGATE _ $s,00D,000 Is — DEDUCTIBLE $ $ 1 RETENTION $ 1 WORKERS COMPENSATION AND I I wCy TALiM TS j :OTW L ` — " ""- - EMPLOYERS' LIABILITY E.L. EACH ACCIDENT .! S — E.LDISEASE - EA EMPLOYEE $ E.L. DISEASE -POLICY LIMIT 1$ D Equipment 72MSKF9548 09101105 09/01/06 I $1,000 DeducUble �THER entedlLeased $150,000 Max Per Item DESCRIPTION OF OPERATIONBILOCATIONSNEHICLES /EXCLUSIONS ADDED BY ENOORSEMENT/RPECIAL PROVISIONS RE: 2005 -2006 Balboa Island Bayfront Repairs, Contract #3796 The City of Newport Beach, Its officers, agents, officials, employees and volunteers are named additional insured as respects general and automobile liability. This insurance shall be primary and non - contributing with any (See Attached Descriptions) City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 25-S (719711 nF Z i1C41A07RIAA1AA770 SHOULD ANYOF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 —DAYS WRITTEN NOTICETOTHE CERTIFICATE HOLDERNAMED TOTHE LEFT, BUT FAILURE TDDOSOSHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURERJTS AGENTS OR RACMAKI to ACORn CORPORATION 1RRA POLICY NUMBEROPKGOI104 ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTSICOMPLETED OPERATIONS LIABILITY COVERAGE PART CONTRACTORS POLLUTION LIABILITY COVERAGE PART PROFESSIONAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: AS PER WRITTEN CONTRACT (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section Ii) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. "Insureds are advised that certificates of insurance should be used only to provide evidence of insurance in lieu of an actual copy of the applicable insurance policy. Certificates should not be used to amend, expand, or otherwise alter the terms of the actual policy." ALL OTHER TERMS AND CONDITIONS REMAIN THE SAME. IE•- 0036 -0.104 I of I POLICY NUMBER 'RPKGO1 t04 • ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART CONTRACTORS POLLUTION LIABILITY COVERAGE PART PROFESSIONAL LIABILITY COVERAGE PART THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY. SCHEDULE Name of Person or Organization: AS PER WRITTEN CONTRACT A. W1 -10 IS AN INSURED (SECTION II) is amended to include as an insured the person or organization shown in the schedule. But only with respect to liability arising out of "your work" for that insured by or for you. B. As respects additional insureds as defined above. This insurance also applies to "bodily injury" or "property damage" arising out of your negligence when the following written contract requirements are applicable: Coverage available under this coverage part shall apply as primary insurance. Any other insurance available to these additional insured's shall apply as excess and not contribute as primary to the insurance afforded by this endorsement. 2. We waive any right of recovery we may have against these additional insured's because of payments we make for injury or damage arising out of "your work" done under a written contract with the additional insured. The term "insured" is used separately and not collectively, but the inclusion of more than one "insured" shall not increase the limits or coverage provided by this insurance. "Insureds are advised that certificates of insurance should be used only to provide evidence of insurance in lieu of an actual copy of the applicable insurance policy. Certificates should not be used to amend, expand, or otherwise alter the terms of the actual policy." IE- 0054 -0404 THIS EN#SEMENT CHANGES THE POLICY. PLEASE I& IT CAREFULLY. Fa SAFEGO' ADDITIONAL INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM CA 7135 12 93 With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. Endorsement effective 09 -01 -05 Named Insured Countersigns y FLEMING ENVIRONMENTAL, INC. CC Name of Person or Organization. Address. Premium: $ inCI (Authorized Representative) Schedule City of Newport Beach, its officers, agents, officials, employees and volunteers 3300 Newport Blvd. Newport Beach, CA 92658 (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A Under LIABILITY COVERAGE WHO IS AN INSURED is changed to include as an "insured" the person(s) or organization(s) shown in the Schedule, but only with respect to "bodily injury" or "property damage' resulting from the acts or omissions of: 1. You; 2. Any of your employees or agents; 3. Any person, except the additional insured or any employee or agent of the additional insured, operating a covered "auto' with the permission of any of the above. B. The insurance afforded by this endorsement does not apply: To "bodily injury' or "property damage" arising out of the sole negligence of the person(s) or organization(s) shown in the Schedule. CA 7135 12 93 Page 1 of 1 Y FEB -22 -2006 WED 12136 PM F1 ing Env FAX N0, 7289231 CURTHOLDER COPY STATE P.O. BOX 420807, SAN FRANCISCO,CA 941A2 -0807 COMPENSATION INSURANCE FUND CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 02 -22 -2006 GROUP: 000046 POLICY NUMUER: 0014358 -2005 CERTIFICATE 10; 140 CERTIFICATE EXPIRES: 05.01 -20W OB- 01.2005/05 -011-2006 CITY OF NEWPORT BEACH 3300 NEWPORT BLVD NEWPORT BEACH CA 02883 -3816 SP J08:ALL CALIFORNIA OPERATIONS This Is to certify that wa larvo Ir.Suad a valid Wotkers' Compensation insurance policy In a form approved by ilia California Insurance COromissioner to the oinployer named below for the policy period Indicated, This policy is not subject to cancellation by the fund except upon30 days advance wriltan notice to the empluytr. We will also (live you 30days advance notice should this policy be cancelled prior to its normal expiration. This certificate of inata'ance Is not an lizurance policy and does not amend, extend or alter the covera0e afforded by the policy lisled herein, Notwithrtandinp any requirement, term or condition of any contract or other document with respect to which this certificate of Insurance may be Issued or to which it may Pertain, ilia insurance afforded by the policy dnccnbod herein is subject to all the torms, oxcluriont, and conditions, of such policy. 'rl Ionlzr' REPRESENTATI PRESIDENT i EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS; st,000,000 PER OCCURRENCE, ENDORSEMENT #2068 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 05 -01 -2005 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. �— ENDORSEMENT #2570 ENTITLED WAIVER OF SUBROGATION EFFECTIVE 2006 -02 -22 IS ATTACHED TO AND FORMS A PART OF THIS POLICY THIRD PARTY NAME: CITY Or NEWPORT BEACH EMPLOYER FLEMING ENVIRONMENTAL INC 5130 VALLEY VIEW ST BUENA PARK CA 9DO20 wev.Voot SP (D16,SP1 PRINTED : 02 22-200S P. 02 SP FEB -09 -2006 1122::111 FROM: 7149391654 TO:819496443318 Fax #; lT i��lo�1W31� CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: k' Dept. /Contact Received From: �f / Date Completed: Sent to: 07 q BY: Company /Person *ulred o ha ve certificate: Tnn-r, i 4 Fn IdfQ P.1 /1 L GENERAL LIABILITY / A. INSURANCE COMPANY: tMyl 4 w B. AM BEST RATING (A: VII or greater): C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? Yes ❑ No D. LIMITS (Mast be $iM or greater ): What is limit provided? 44 Nn: /—Igni d7r. E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it inducted? es No F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? Yes E-1 No G_ PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? Yes ❑ No H. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include 'solely by negligence' wording? ❑ Yes No I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. 11. AUTOMOBILE LIABILITY �j A. INSURANCE COMPANY: �C. auje d �1) Yj�Y) ]` � :CDC B. AM BEST RATING (A: VII or greater): _ C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? Yes ❑ No D. LIMITS (Must be $1 M min. BI & PD and $500,000 UM): What is limits provided? A 2 H...' E. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? Yes ❑ No F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haullprs only): is it included? V A ❑ Yes El No G. NOTIFICATION OF CANCELLATION: Although there is a provi ion that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. IL O OP A. INSURANCE COMPANY: sat y TVAkVW4M Cc, V° Xk A)� i CA- . B. AM BEST RATING (A: VII or greater): C. LIMITS: Statutory �� D. WAIVER OF SUBROGATION (To include): Is it included? ❑ Yes Il _110 HAVE ALL ABOVE REQUIREMENTS BEEN MET? {A I ff /n�� - ❑ Yes No IF NO, WHICH ITEMS NEED TO BE COMPLETED? Y"oy k clyr ) wal yw III, 22h-re �M q 0 0 FLEMING ENVIRONMENTAL INCORPORATED 6130 VALLEY VIEW STREET ` BUENA PARK, CA 90620 (714) 228 -0935 ' FAX (714) 228 -9231 LICENSE #k746017 REFERENCES Rita Medellin (951) 955-4939 Citrus Community College October 2005- Ongoing 1000 West Foothill Blvd. Michael Harrington (626) 914 -8693 Glendora, CA 91741 -1899 (626) 857 -9427 FAX Site Improvements for the Waste Management Center $376,527.00 Estimated Start Date January 2006 Compton Unified School District Estimated Start Date December 2005 723 South Alameda Street Thedoe Bonner (310) 639 -4321 X55177 October 2005 - Ongoing Compton, CA 90220 (310) 639 -7431 FAX Removal of Two Underground Storage Tanks and Upgrade Two Existing Tanks $144,380.00 Underground Storage Tanks Environmental Upgrades and Fuel Site Automation Miracle Playground Sales Estimated Start Date November 2005 27464 Commerce Center Drive, Suite I Allison Spinner (800) 264 -7225 Temecula, CA 92590 (951) 676 -8706 FAX Installation of Playground Equipment at Moreno Valley Community Center $42,750.00 Sierra Bonita Home Owners Association Estimated Start Date November 2005 39 Argonaut, Suite 100 Ray Saito (949) 955 -3404 Aliso Viejo, CA 92656 rsaito @sbcglobal.net Installation of Playground Equipment at Various Parks $79,786.00 County of Riverside Rita Medellin (951) 955-4939 2980 Washington Street (951) 955 -4948 FAX Riverside, CA 92504 Install Playground Equipment at Lake Skinner Recreation Park October 2005 -Ongoing $65,750.00 Furnish & Install 1500 SF designed and Pre - Engineered Steel Estimated Start Date January 2006 Building@ Smith Correctional Facility $127,762.00 City of Glendale October 2005 - Ongoing 633 East Broadway, Room 209 Eric Mirzaian (818) 548 -3900 X 8321 Glendale, CA 91206 -4385 Underground Storage Tanks Environmental Upgrades and Fuel Site Automation $2,456,329.00 City of Chino Hills September 2005 - Ongoing 2001 Grand Avenue Mike Barnum (909) 364 -2856 Chino Hills, CA 91709 Shoppes Soil Import Project $1,407,000.00 County of Orange October 2005 - Ongoing 1152 E. Fruit Street, Bldg. 1 Joe Palmieri (909) 5335906 Santa Ana, CA 92701 Playground Equipment Replacement at Yorba Regional Park $173,800.00 0 City of Rancho Cucamonga P.O. Box 807 Rancho Cucamonga, CA 91729 Lake Pump Equipment Vault at Red Hill Community Park $119,762.00 E July 2005 — Ongoing Jerry Dyer (909) 477 -2740 X 4037 City of Cerritos July 2005 — Ongoing P.O. Box 3130 Rash Syed (562) 916 -1221 Cerritos, CA 90703 -3130 Rehabilitation of Ground Water Pump Station at Performing Arts $382,772.00 Riverside Unified School District P.O. Box 2800 Riverside, CA 92516 Playground Equipment Installation at Various Sites $242,500.00 City of Santa Ana P.O. Box 1988 Santa Ana, CA Playground Renovation at Bomo Koral & Lillie King Park $328,264.50 Playground Renovation at Centennial Regional Park $221,000.00 Los Angeles County ISD 1100 North Eastern Avenue Los Angeles, CA 90063 Removal of UST and Installation of AST $36,850.00 County Sanitation Districts of Los Angeles County P.O. Box 4998 Whittier, CA. 90607 -4998 Gas Collection Trenches at Various District Landfills — 2004 $466,780.00 Calabasas Landfill Air Stripper Replacement $157,250.00 City of Anaheim 200 South Anaheim Blvd. Anaheim, CA 92805 Removal & Replacement of Fuel Storage Tanks at Fire Staion No. $154,710.00 Underground Fuel Storage Tank Removal $74,947.00 May 2005 — September 2005 Tony Jimenez (951) 3525589 June 2005 — October 2005 Edward Torres (714) 647 -5018 September 2005 - Ongoing Edward Torres (714) 647 -5018 June 2005 — October 2005 Brian Pettit (323) 226 -3034 January 2005 - Ongoing Paul Perkins (626) 962 -8605 (626) 814 -9221 FAX Richard Koskela (310) 830 -8050 X5829 (323) 775 -2040 FAX April 2005 — May 2005 Chuck Smith (714) 765 -5176 X5709 City of Southgate January 2005 — May 2005 8650 California Avenue Robert Dickey (323) 357 -9657 South Gate, CA 90280 -3075 (323) 563 -9572 FAX City Yard Fuel Tank Replacement Project, Project No. 326 -GEN $233,280.00 County of Riverside 10/04 —11/04 2980 Washington Street Rita Medellin (909) 955 -4939 Riverside, CA 92504 (909) 955 -4948 FAX Lamb Canyon Header Relocation $51,510.00 0 City of Monterey Park 320 West Newmark Avenue Monterey Park, CA 91754 -2896 Upgrading Existing Fueling System $64,510.00 Orange County Fire Authority 1 Fire Authority Road Irvine, CA 92623 Purchase and Installation of One Above Ground Storage Tank $99,990.00 City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA` 92675 Underground Storage Tank Removal $38,746.00 City of Chino Redevelopment Department, City Hall 13220 Central Avenue Chino, CA 91710 SEC Central & C Parking Lot Improvement Project $223,582.32 East Civic Center Demolition and Clearance Project II $278,908.09 California Highway Patrol — Rancho Cucamonga Facilities Section P.O. Box 942898 Sacramento, CA 94298 -0001 UST Upgrades $71,685.00 09104 —10/04 Elias Saykali 8104-01105 Karen Peters 08104-08104 Peter Salgado Brian Lee (626) 307 -1320 (626) 307 -2500 FAX (714) 573 -6260 (714) 633 -4354 FAX (949) 443 -6366 (949) 493 -3955 FAX (909) 464 -8317 (909) 464 -0777 FAX 06104 — 07/04 L. Reyes - Ibanez (916) 375 -2940 (916) 376 -1778 FAX City of Buena Park 06/04 -07/04 6650 Beach Blvd. Sam Maker (714) 562 -3687 Buena Park, CA 90622 -5009 (714) 562 -3677 FAX Fueling System Modifications at the City Yard — Project No. 407 $126,715.93 City of Simi Valley 05/04 — 07/04 2929 Tapo Canyon Road Dennis LaChaine (805) 583 -6414 Simi Valley, CA 93063 (805) 583 -6402 FAX Repairs to the Fuel Dispensing Station at the Public Services Center $69,387.88 City of La Palma 07/04 - 08/04 7822 Walker Street tarty Baldwin (714) 690 -3325 La Palma, CA 90623 -1771 (714) 523 -2141 FAX Addition to the Water Bldg and Install of a Vehicle Wash Area at the City Yard $78,758.00 County of Kern — Construction Services 1115 Truxton Avenue Bakersfield, CA 93301 Justice Building Install Above Ground Fuel Tank — Project No. $50,179.20 Buttonwillow & Hart Parks Tot Lot Improvements — Project No. $79,850.00 City of Bellflower 16600 Civic Center Drive Bellflower, CA 90706 -5494 Closure and Removal of Underground Storage Tanks $42,450.00 05/04 — 07/04 Nanette True (661) 868 -3044 (661) 868 -3100 FAX 165.7117 1960 -8122B 03/04 — 06104 Paul Zwiep (562) 804-1424 (562) 925 -8660 FAX • • Orange County Fire Authority 11/03 -08/04 145 South Water Street Karen Peters Orange, CA 92866 Purchase and Installation of Three Above Ground Diesel Fuel Storage Tanks $259,605.00 Installation of Crash Poles and Concrete Pad $16,100.00 City of Ontario 303 East "B" Street Ontario, CA 91764 Municipal Service Center Vehicle Wash Facility Expansion $791,626.00 City of Glendale 613 East Broadway, Room 110 Glendale, CA 91206 Upgrade Existing Fuel Storage System, Tank Retrofit $371,909.59 California Highway Patrol - Altadena Facilities Section P.O. Box 942898 Sacramento, CA 94298 -0001 UST Upgrades $86,693.08 (714) 744 -0466 (714) 744 -0531 FAX 08/03 - 03104 Ron Young (909) 395 -000 x2694 (909) 395 -2601 FAX 03103 -06/03 Robert Laroche (818) 548 -2095 06103 - 08103 L. Reyes - Ibanez (916) 375 -2940 Los Angeles County Department of Public Works 08/03 -12104 900 South Fremont Avenue Eddie Lyons (626) 458 -4966 Alhambra, CA 91803 (626) 458 -2197 FAX Retrofit/Replacement of UST's and Fuel Facilities Group 2 $1,401,950.00 (6 SITES) Retrofit/Replacement of UST s and Fuel Facilities Group 4 $886,575.00 (13 SITES) Installation of Fuel Facility at Lancaster Waterworks Yard, Group 6 06104 - 07104 $224,784.60 Metropolitan Water District 07/03 -07/04 700 North Alameda Street, Third Floor Art Ogden (714) 240 -2069 Los Angeles, CA 90012 213) 576 -5308 FAX (P.O. Box 54153, Los Angeles, CA 90054) Los Angeles Region UST Upgrades and Dispenser Spill Containment $1,254,455.00 (11 SITES) City of Huntington Beach 7102 -9102 P.O. Box 190 Robert Martinez (714) 536.5423 Huntington Beach, CA 92648 Fuel Canopy Project At Fire Training Facility $73,750.00 Orange County Transportation Authority 8102 -8102 P.O. Box 14184 Ilona DeRosa (714) 560 -5633 Orange, CA 92863 -1584 Construction of Bus Bollards $33,290.00 Riverside County Waste Management Department 1/02-6/02 14310 Frederick Joel Jimenez (909) 486 -3257 Moreno Valley, CA 92553 (909) 486 -3205 FAX Construction of the Ague Manse Clean Fuel Station $746,917.00 Pi State of California Department of Transportation 1615 S. Wall Street Los Angeles, CA 90015 Construction of Wash Rack Facilities $1,187,814.78 State of California Department of Transportation 910 -13 West Gladstone Street San Dimas, CA 91773 Construction of Wash Rack Facilities $1,054,169.54 Ralph's Grocery Company 07198 -11/98 99 E. Ramsey St. 1100 W. Artesia Blvd. Banning, CA. 92220 Compton, CA 90220 $334,431.00 Modifications to UST System — Compton $75,998.00 Fuel Island Upgrade— Glendale $39,880.00 Fuel Island Upgrade— Riverside $82,500.00 Sump Replacement— Compton $79,825.00 Fuel Island Repairs - Los Angeles $71,675.00 City of San Bernardino 300 N. "D" Street San Bernardino, CA 92418 Turnkey Installation of Above Ground Fuel Tank $24,900.00 County of San Diego 5555 Overland Avenue, Bldg. 11 San Diego, CA 92123 -1290 Contract #43769, Construction of Fuel Facilities $370,709.00 City of Los Angeles 650 S. Spring Street, Suite 600 Los Angeles, CA. 90014 Contract #C- 97393, Fuel Storage Tanks & Dispensing System $319,507.00 0 10/02 — 06/03 Simon Yeh -Fu Wang 10102— 06103 Biman Roy 10101 —12104 Russ Lewis (213) 620 -2039 X 209 (909) 305 -1261 (310) 884 -4180 10101 —12101 06102-06102 07/02 — 08/02 08/03 — Ongoing Estimated Start Date September 2004 07/01 — 08101 Jim Sharer (909) 384 -5244 06/98 - 11198 Eric Nelson (858) 4955288 02199 - 07/99 Dennis Wong (213) 847 -4032 City of Banning 07198 -11/98 99 E. Ramsey St. John Middleton (909) 922 -3130 Banning, CA. 92220 Project #1997 -07, Joint Use Fueling Station $334,431.00 County of Los Angeles 07/98 - 06199 Department of Public Works Jolene Guerrero (626) 4583137 900 S. Fremont Avenue Alhambra, CA. 91803 -1331 Underground Storage Tank Compliance Program — Group 3 Work $886,765.51 City of Manhattan Beach 12196 - 03199 1400 Highland Avenue Ed Kao (310) 545 -5621 Manhattan Beach, CA. 90266 X 375 Fuel Tank Removals and Replacements $295,079.00 North County Transit District 08/98 -10/98 810 Mission Avenue Tom Traver (760) 967 -2841 Oceanside, CA 92054 IFB #9825 Replacement of Underground Storage Tanks, Phase 1 $104,893.00 City of San Diego 1010 Second Avenue, Suite 500 Mail Station #1103 A San Diego, CA. 92101 Vehicle Fuel Storage & Dispensing Facility $539,441.00 City of Fountain Valley 10200 Slater Avenue Fountain Valley, CA. 92708 Removal of Underground Fuel Storage Tanks $109,800.00 City of Monrovia 415 S. Ivy Avenue Monrovia, CA. 91016 -2888 Centralized Fueling Site $184,789.00 Los Angeles County Sanitation Districts P.O. Box 4998 Whittier, CA. 90607 -4998 Fueling Facility Upgrades San Jose Water Reclamation Contract #3609 $145,267.00 Los Coyotes Water Reclamation Contract #3608 $182,758.00 Joint Water Pollution Control Plant Contract #3622 $198,075.00 South Gate Transfer Station Contract #3619 $241,914.00 Carson Upgrade $49,912.00 Carson Total Energy Facilities $38,069.20 SAUGUS UPGRADE $45,000.00 Rialto Unified School District 260 S. Willow Avenue Rialto, CA 92376 -6304 Underground Tank Replacement — EJ Ward Automation Install $336,017.77 City of Rialto 249 S. Willow Rialto, CA 92376 -6304 Underground Tank Replacement — EJ Ward Automation Install $222,252.86 11/98 - 03/99 Ted Olson 12198 - 02199 Bob Callison 05198 - 08/98 Dennis Shiflet 02/99 - 07/99 Abdul Edouni 02/99 - 08/99 Philip Kang (619) 573 -1266 (714) 593 -4433 (626) 932 -5541 (626) 962 -8605 (310) 638 -1161 12/99-01100 Frances Garrett (562) 699 -7411 06/99 — 02!00 Alex Irshaid (909) 734 -3400 07/99 — 02!00 Alex Irshaid (909) 734 -3400 License Detail California Home Ea[fire License Detail Contractor License # 746017 Page 1 of 3 �_a3iridt CALIFORNIA CONTRACTORS_STATE_ LICENSE-BOARD DISCLAIMER A license status check provides information taken from the CSLB license data base. Before relying on this information, you should be aware of the following limitations: • CSLB complaint disclosure is restricted by law (B &P 7124 6). If this entity is subject to public complaint disclosure, a link for complaint disclosure will appear below. Click on the link or button to obtain complaint and /or legal action information. • Per B &P 7071.17, 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. • Due to workload, there may be relevant information that has not yet been entered onto the Board's license data base. Extract Date: 01/26/2006 * * * Business Information * * * FLEMING ENVIRONMENTAL INCORPORATED 6130 VALLEY VIEW STREET BUENA PARK, CA 90620 Business Phone Number: (714) 228 -0935 Entity: Corporation Issue Date: 02/18/1998 Expire Date: 02/28/2006 * * * License Status * * * This license is current and active. All information below should be reviewed. http: / /www2.csib.ca.gov /CSLB LIBRARY /License+Detail.asp 01/26/2006 0 E License Detail * * * Classifications * * * Kiiigi Description 0 GENERAL ENGINEERING CONTRACTOR © GENERAL_ BUILDING CONTRACTOR * * * Certifications Cert I Description HAZ HAZARDOUS SUBSTANCES REMOVAL * * * Bonding Information * * * Page 2 of 3 CONTRACTOR'S BOND: This license filed Contractor's Bond number 6718968 in the amount of $10,000 with the bonding company TRAVELERS CASUALTY AND SURETY COMPANY. Effective Date: 01/01/2004 Cancellation Date: 02/11/2006 Contractor's..-Bonding Histm BOND OF QUALIFYING INDIVIDUAL(1): The Responsible Managing Officer (RMO) TERRY LEE FLEMING certified that he /she owns 10 percent or more of the voting stock/equity of the corporation. A bond of qualifying individual is not required. Effective Date: 10/07/2004 BQI's Bonding History BOND OF QUALIFYING INDIVIDUAL(2): The Responsible Managing Officer (RMO) TERRY LEE FLEMING JR certified that he /she owns 10 percent or more of the voting stock/equity of the corporation. A bond of qualifying individual is not required. Effective Date: 10/07/2004 http: / /www2.cslb.ca.gov /CSLB LIBRARY /License+Detail.asp 01/26/2006 License Detail Page 3 of 3 BQI's Bonding History * * * Workers Compensation Information * * * This license has workers compensation insurance with the STATE COMPENSATION INSURANCE FUND Policy Number: 046- 0014358 Effective Date: 05/0112004 Expire Date: 0510112006 Workers Compensation History Personnel listed on this license (current or disassociated) are listed on other licenses. Personnel List Other Licenses License Number Request Contractor..Name Request Personnel Name Request Salesperson Request Salesperson Name Request ® 2005 State of California. Conditions of Use Privacy Policy http: / /www2.cslb.ca_gov /CSLB LIBRARY /License+Detail.asp 01/26/2006 0 i Li 0 0 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT PROPOSAL 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 To the Honorable City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Gentlemen: The undersigned declares that he has carefully examined the location of the work, has read the Instructions to the Bidders, has examined the Plans and Special Provisions, and hereby proposes to furnish all materials except that material supplied by the City and shall perform all work required to complete Contract No. 3796 in accordance with the Plans and Special Provisions, and will take in full payment therefore the following unit prices for the work, complete in place, to wit: ITEM QUANTITY 'ITEM DESCRIPTION AND UNIT UNIT TOTAL AND UNIT PRICE WRITTEN IN WORDS PRICE PRICE Lump Sum Mobilization @ SiXficcn d�wtiakwl ollars and Cents $ 4 H60 l Per Lump Sum 2. Lump Sum Construction Zone and Traffic Control (a) 51)e bT dollars and Cents $ �e Per Lump Sum 3. 150 C.Y Misc. Below Grade Removal, Disposal & Backfill @ /wo (jm AJ 7w�d °(-Dollars and Cents $ Z 12- $ T/ Too Per Cubic Yard • • PR2of3 ITEM QUANTITY ITEM DESCRIPTION AND UNIT UNIT TOTAL AND UNIT PRICE WRITTEN IN WORDS PRICE PRICE 9 5. 7 f 4 23,200 S.F. 4 -inch PCC Sidewalk a Dollars and F,�z Cents Per quare Foot 2,400 L.F. Furnish and Install 6 -in PVC Pipe $ 71-OZ $ Z z� @S 4fu., Dollars and Cents $ Per L near Foot 25 E.A. Furnish and Install Area Drain @ Sars and i cv Cents Per Each 2 E.A. Adjust Manhole to Grade uunkcd (- ',l:4-6o I g and Cents Per Each 30 E.A. Replace Electrical Pull box and Cover �c and "\ Cents Per Each 3,200 L.F. Furnish and Apply Seawall Sealant Below Edge of Coping l $ s $ l oZ $ 5-_27« $ (di%i DP4t� s Dollars and S Cents $ Z ,� $ X�3 Zo saz, Per Lin gar Foot • PR3of3 ITEM QUANTITY ITEM DESCRIPTION AND UNIT UNIT TOTAL AND UNIT PRICE WRITTEN IN WORDS PRICE PRICE 10. 30 E.A. Coping Joint Sealant Repair 11 12. 13. @� ��eb'ollars and Cents $ g $ _/013 'to = Per Each 12 E.A. Furnish and Install Preformed No Bicycle Symbol ,�k,` 5 "- � Dol a s and ,tv, Cents Per Each Lump Sum Surveying Services $ S1 $ 6,foo 1_� 6Jw4rcAi Dollars and Cents Per Lump um Lump Sum As -built Drawing @S/�GfFW 4l &4XDollars and Cents Per Lump Sum TOTAL PRICE IN WRITTEN WORDS A� �7 $ G yb and 7j%r_- Cents $ Sgt , !ny xY �T Total Price. (Figures) NOVEMBER 22, 2005 Date (714) 228- 0935/(714) 228 -9231 FAX Bidder's Telephone and Fax Numbers 746017 Bidder's License No(s). and Classification(s) FLEMING ENVIRONMENTAL INC. Bidder PRESIDENT Bidder's A_ ftrized__Stgnature and Title 6130 VALLEY VIEW ST. BUENA PARK, CA 90620 -1030 Bidder's Address f.5users\pbw\sharedlcmtlraCMfy 05- 06105.06 balboa island bayfrord c-37961proposal G3796.doc 0 0 1 1 1 1 2 F 2 2 2 3 3 3 3 3 3 3 4 n 4 4 4 5 PUBLIC WORKS DEPARTMENT INDEX FOR SPECIAL PROVISIONS CONTRACT NO. 3796 INTRODUCTION PART 1-- GENERAL PROVISIONS SECTION 2 SCOPE AND CONTROL OF THE WORK 2 -6 WORK TO BE DONE 2 -9 SURVEYING 2 -9.3 Survey Service 2 -9.6 Survey Monuments SECTION 3 CHANGES IN WORK 3 -3 EXTRA WORK 3 -3.2 Payment. 3 -3.2.3 Markup SECTION 4 CONTROL OF MATERIALS 4-1 MATERIALS AND WORKMANSHIP 4-1.3 Inspection Requirements 4 -1.3.4 Inspection and Testing SECTION 5 UTILITIES 5-7 ADJUSTMENTS TO GRADE 5-8 SALVAGED MATERIALS SECTION 6 PROSECUTION, PROGRESS AND ACCEPTANCE OF THE WORK 6-1 CONSTRUCTION SCHEDULE AND COMMENCEMENT OF THE WORK 6-7 TIME OF COMPLETION 6 -7.1 General 6 -7.2 Working Days 6 -7.4 . Working Hours 1 1 1 1 2 F 2 2 2 3 3 3 3 3 3 3 4 n 4 4 4 5 0 6 -9 LIQUIDATED DAMAGES 0 5 SECTION 7 RESPONSIBILITIES OF THE CONTRACTOR 5 7 -8 PROJECT SITE MAINTENANCE 5 7 -8.5 Temporary Light, Power and Water 5 7 -8.6 Water Pollution Control 5 7 -8.6.1 Best Management Practices and Monitoring Program 6 7 -9 PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS 6 7 -10 PUBLIC CONVENIENCE AND SAFETY 6 7 -10.1 Traffic and Access 6 7 -10.2 Storage of Equipment and Materials in Public Streets 7 7 -10.3 Street Closures, Detours, Barricades 7 7 -10.4 Safety 8 7- 10.4.1 Safety Orders 8 7 -10.5 "No Parking" Signs 8 7 -10.7 Notice to Residents 8 7 -15 CONTRACTOR LICENSES 9 7 -16 CONTRACTOR'S RECORDSIAS BUILT DRAWINGS 9 SECTION 9 MEASUREMENT AND PAYMENT 9 9 -3 PAYMENT 9 9 -3.1 General 9 9 -3.2 Partial and Final Payment 11 PART 2 - -- CONSTRUCTION MATERIALS SECTION 201 CONCRETE, MORTAR, AND RELATED MATERIALS 11 201 -1 PORTLAND CEMENT CONCRETE 11 201 -1.1 Requirements 11 201 -1.1.1 General 11 201 -7 Non - Masonry Grout 12 201 -7.2 Quick- Setting Grout 12 SECTION 209 ELECTRICAL COMPONENTS 12 209 -2 MATERIALS 12 209 -2.5 Pull Box 12 SECTION 215 AREA DRAINS 12 215.1 General 12 0 0 SECTION 216 PREFORMED "NO BICYCLE" SYMBOL 12 216.1 General 12 SECTION 217 SPECIALTY REPAIR MATERIALS 12 217.1 General 12 PART 3--- CONSTRUCTION METHODS SECTION 300 EARTHWORK 12 300 -1 CLEARING AND GRUBBING 12 300 -1.3 Removal and Disposal of Materials 13 300 -1.3.1 General 13 300 -1.3.2 Requirements 13 300 -1.5 Solid Waste Diversion 13 SP 1 OF 13 CITY OF NEWPORT BEACH �oQ" PUBLIC WORKS DEPARTMENT ���' FRANK SPECIAL PROVISIONS 06/30/06 2005 -06 BALBOA ISLAND BAYFRONT REPAIRS CONTRACT NO. 3796 INTRODUCTION All work necessary for the completion of this contract shall be done in accordance with (1) these Special Provisions; (2) the Plans (Drawing No. R- 5897 -5); (3) the City's (2004 Edition), including Supplements; (4) Standard Specifications for Public Works Construction (2003 Edition), including supplements. Copies of the Standard Special Provisions and Standard Drawings may be purchased at the Public Works Department. Copies of the Standard Specifications may be purchased from Building News, Inc., 1612 South Clementine Street, Anaheim, CA 92802, 714 -517 -0970. The following Special Provisions supplement or modify the Standard Specifications for Public Works Construction as referenced and stated hereinafter: PART 1 GENERAL PROVISIONS SECTION 2-- -SCOPE AND CONTROL OF THE WORK 2 -6 WORK TO BE DONE Add to this section, "The work necessary. for the completion of this contract consists of: distribute construction notices to nearby residents; install construction zone detours and traffic control; remove and dispose of existing PCC walkways; over - excavation and disposal; install walkway drains; backfill and compact native sand bedding; install seawall sealant; reconstruct P.C.C. sidewalk; adjust/reconstruct existing storm drain manhole frame and cover to finished grade; adjust/replace street light pull boxes; restore existing improvements damaged by the work; and complete other incidental items of work." 2 -9 SURVEYING 2 -9.3 Survey Service. Add to this section: "The Contractor's California Licensed Land Surveyor shall utilize /follow the existing City survey records used for the project design to provide all construction survey services that are required to construct the improvements. For your information, the design surveyor for this project was Coast Surveying, Inc. and can be contacted at (714) 918 -6266. At a minimum, two (2) sets of cut - sheets for all areas shall be included in the bid price and copies of each set shall • • SP2OF13 be provided to City 48 -hours in advance of any work. In addition, the filing of a Corner Record and /or a Record of Survey with the County Surveyor's Office is required after the completion of Work. Prior to any demolition Work the Contractor shall prepare and submit the Comer Records for review by the City a minimum of three (3) working days before the anticipated Work. Existing street centerline ties and property corner monuments are to be preserved. If restoration is not made by Contractor, the Contractor will be back - charged for the cost of restoring all survey ties and /or monuments damaged by the Work." 2 -9.6 Survey Monuments. The Contractor and the Contractor's surveyor shall, prior to the beginning of work, inspect the project for existing survey monuments and then schedule a meeting with the City Surveyor to walk the project to review the survey monuments. The Contractor shall protect all survey monuments during construction operations. In the event that existing survey monuments are removed or otherwise disturbed during the course of. work, the City will restore the survey monuments at Contractor's expense. The restoration cost to the Contractor will include filing the required Record of Survey or Corner Records with the County of Orange. SECTION 3 - -- CHANGES IN WORK 3 -3 EXTRA WORK 3 -3.2 Payment 3 -3.2.3 Markup. Replace this section with, "(a) Work by Contractor. The following percentages shall be added to the Contractor's costs and shall constitute the markup for all overhead and profits: 1) Labor ............. ............................... 20 2) Materials ........ ............................... 15 3) Equipment Rental ........................... 15 4) Other Items and Expenditures ........... 15 To the sum of the costs and markups provided for in this subsection, 1 percent shall be added for compensation for bonding. (b) Work by Subcontractor. When all or any part of the extra work is performed by a Subcontractor, the markup established in 3- 3.2.3(a) shall be applied to the Subcontractor's actual cost of such work. A markup of 10 percent on the first $5,000 of the subcontracted portion of the extra work and a markup of 5 percent on work added in excess of $5,000 of the subcontracted portion of the extra work may be added by the Contractor. SECTION 4 - -- CONTROL OF MATERIALS 4 -1 MATERIALS AND WORKMANSHIP 4 -1.3 Inspection Requirements SP 3 OF 13 4 -1.3.4 Inspection and Testing. All material and articles furnished by the Contractor shall be subject to rigid inspection, and no material or article shall be used in the work until it has been inspected and accepted by the Engineer. The Contractor shall furnish the Engineer full information as to the progress of the work in its various parts and shall give the Engineer timely (48 -hours minimum) notice of the Contractor's readiness for inspection. Submittals are required for all construction material. The Engineer shall select an independent testing laboratory and pay for all testing as specified in the various sections of the Standard Special Provisions and these Special Provisions. When, in the opinion of the Engineer, additional tests and retesting due to failed tests or inspections are required because of unsatisfactory results in the manner in which the Contractor executed the work, such tests and inspections shall be paid for by the Contractor. SECTION 5 - -- UTILITIES 5 -1 LOCATION. Add the following after the 3'd paragraph: "upon completion of the work or phase of work, the Contractor shall remove all USA utility markings." 5 -2 PROTECTION. Add the following: "In the event that an existing pull or meter box or cover is damaged by the Work and is not re- useable, the Contractor shall provide and install a new pull or meter box or cover of identical type and size at no additional cost to the City." 5 -7 ADJUSTMENTS TO GRADE. The Contractor shall adjust or replace to finish grade City -owned water meter boxes, water valve covers, sewer manholes, sewer cleanouts and survey monuments. The Contractor will be required to contact Southern California Edison, The Gas Company, SBC Telephone, cable television, and other utility facilities to have existing utilities adjusted to finish grade. The Contractor shall coordinate with each utility company for the adjustment of their facilities. 5 -8 SALVAGED MATERIALS. The Contractor shall salvage all existing sewer /storm drain manhole (including grade rings), meter or valve box covers. The Contractor shall salvage all removed cast iron pipes. Salvaged materials shall be delivered to the City's Utility Yard at 949 West 16th Street. The Contractor shall make arrangements for the delivery of salvaged materials by contacting Mr. Ed Burt, Utilities Operations Manager, at (949) 718 -3402. 0 0 SP 4 OF 13 SECTION 6-- PROSECUTION, PROGRESS AND ACCEPTANCE OF THE WORK 6 -1 CONSTRUCTION SCHEDULE AND COMMENCEMENT OF WORK. Add to this section: "The time of completion as specified in Section 6 -7, shall commence on the date of the 'Notice to Proceed.' No work shall begin until a "Notice to Proceed" has been issued, a pre - construction meeting has been conducted, and a schedule of work has been approved by the Engineer. The Contractor shall submit a construction schedule to the Engineer for approval a minimum of five working days prior to commencing any work. Schedule may be bar chart or CPM stvle and shall have included that no more than two (2) construction at one time. In addition, once work has started within the two The Engineer will review the schedule and may require the Contractor to modify the schedule to conform to the requirements of the Contract Documents. If work falls behind the approved schedule, the Contractor shall be prohibited from starting additional work until Contractor has exerted extra effort to meet the original schedule and has demonstrated that the ability to maintain the approved schedule in the future. Such stoppages of work shall in no way relieve the Contractor from the overall time of completion requirement, nor shall it be construed as the basis for payment of extra work because additional personnel and equipment were required on the job." 6 -7 TIME OF COMPLETION 6 -7.1 . General. Add to this section: "The Contractor shall complete all work under the Contract within fifty (50) consecutive working days after the date on the Notice to Proceed. The Notice to Proceed is anticipated to be given for work to start on January 9 or January 16, 2006. The Contractor shall ensure the availability of all material prior to the start of work. Unavailability of material will not be sufficient reason to grant the Contractor an extension of time for 100 percent completion of work." 6 -7.2 Working Days. Revise 3) to read: "any City holiday, defined as January 1 "' the third Monday in January (Martin Luther King Day), the third Monday in February (President's Day), the last Monday in May (Memorial Day), July 4w, the first Monday in September (Labor Day), November 11'" (Veterans Day), the fourth Thursday and. Friday in November (Thanksgiving and Friday after), December 24`h, (Christmas Eve — half day), December 25" (Christmas), and December 311 (New Year's Eve — half day). If January 1st, July 4th, November 11th or December 25th falls on a Sunday, the following Monday is a holiday." • • SP5OF13 6 -7.4 Working Hours. Normal working hours are limited to 8:00 a.m. to 4:30 p.m. Monday through Friday. The Contractor, subcontractors, suppliers, etc., shall not generate any noise at the work site, storage sites, staging areas, etc., before or after the normal working hours prescribed above. Should the Contractor elect to work outside normal working hours, Contractor must first obtain special permission from the Engineer. The request may be for 4:30 p.m. to 6:30 p.m. on weekdays or 8:00 a.m. to 6 p.m. on Saturday only. A request for working during any of these hours must be made at least 72 hours in advance of the desired time period. A separate request must be made for each work shift. The Engineer reserves the right to deny any or all such requests. Additionally, the Contractor shall pay for supplemental inspection costs of $123.90 per hour when such time periods are approved. 6 -9 LIQUIDATED DAMAGES. Revise sentence three to read: "For each consecutive calendar day after the time specified in Section 6 -7 -1 for completion of the work, the Contractor shall pay to the City or have withheld from moneys due it, the daily sum of $1,000. Revise paragraph two, sentence one, to read: "Execution of the Contract shall constitute agreement by the Agency and Contractor that $1,000 per day is the minimum value of the costs and actual damage caused by the failure of the Contractor to complete the Work within the allotted time. The intent of this section is to emphasize to the Contractor the importance of prosecuting the work in an orderly preplanned continuous sequence so as to minimize inconvenience to residences, businesses, vehicular and pedestrian traffic, and the public as a result of construction operations." SECTION 7--- RESPONSIBILITIES OF THE CONTRACTOR 7 -8 PROJECT SITE MAINTENANCE 7 -8.5 Temporary Light, Power and Water. Add to this section: "If the Contractor elects to use City water, he shall arrange for a meter and tender an $813 meter deposit with the City. Upon return of the meter to the City, the deposit will be returned to the Contractor, less a quantity charge for water usage and repair charges for damage to the meter." Water used during construction shall be paid for by the Contractor. This includes water for flushing and pressure testing water lines, compaction, irrigation during maintenance period for landscaping, etc." 7 -8.6 Water Pollution Control. Add to this section, "Surface runoff water, including all water used during sawcutting operations, containing mud, silt or other deleterious 0 • SP6OF13 material due to the construction of this project shall be treated by filtration or retention in settling basin(s) sufficient to prevent such material from migrating into any catch basin, Newport Harbor, the beach, or the ocean. The Contractor shall also comply with the Construction Runoff Guidance Manual which is available for review at the Public Works Department or can be found on the City's website at http:/lwww.city.newport - beach.ca.us /pubworks /links. htm." 7 -8.6.1 Best Management Practices and Monitoring Program. The Contractor shall submit a Best Management Practice (BMP) plan for containing any wastewater or storm water runoff from the project site including, but not limited to the following: a. No placement of construction materials where they could enter storm drain system, or gutters that lead to catch basins. b. Checking construction vehicles for leaking fluids. c. Providing a controlled area for cleaning or rinse -down activities. d. Monitoring construction activities. e. Minimizing usage of water when saw- cutting and vacuuming the residue. f. Providing measures to capture or vacuum -up water contaminated with construction debris. g. Removing any construction related debris on a daily basis. h. Protecting work areas from erosion. The BMP will be approved by the Engineer prior to any work. The City of Newport Beach will monitor the adjacent storm drains and streets for compliance. Failure of the Contractor to follow BMP will result in immediate cleanup by City and back - charging the Contractor for all costs plus 15 percent. The Contractor may also receive a separate Administrative Citation per Section 14.36.030A23 of the City's Municipal Code. 7 -9 PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS. Replace the first sentence of the second paragraph with: "The Contractor shall repair, restore, or reconstruct all existing public and private improvements disturbed or damaged by the Work which are not designated for removal. Such restoration work may include, but not limited to, private utility lines under the existing sidewalk between the property line and the bulkhead, mail boxes, turf, plants and planters, shrubs, electrical components, fences, brick and brick pavers, concrete, painting of various surfaces, property comers, ornaments and other decorative items, etc. Extra caution shall be exercised to relocate and protect the existing potted plants located at street - ends." Add to this Section: 'The Contractor is advised to keep photographic records for future references of the existing work site condition prior to the start of any construction work" 7 -10 PUBLIC CONVENIENCE AND SAFETY 7 -10.1 Traffic and Access. Add to this section: "The Contractor shall provide traffic control and access in accordance with Section 7 -10 of the Standard • • SP7OF13 Specifications and the Work Area Traffic Control Handbook (WATCH), also published by Building News, Inc. Pedestrian access to all storefronts, offices, residences, etc., within the limits of work must be maintained at all times. The Contractor shall cooperate with the Engineer to provide advance notice to any and all establishments whose access will be impacted by construction operations, particularly sidewalk construction. The Contractor shall furnish and install signage, barricades, delineators, yellow safety ribbon, and any other measures deemed necessary by the Engineer to safely direct the public around areas of construction, and into (and out of) the affected establishments. Such measures shall be shown on the Detailed Traffic Control Plans (see Section 7- 10.3)." 7 -10.2 Storage of Equipment and Materials in Public Streets. Delete the first paragraph and add the following: "Construction materials and equipment may only be stored in streets, roads, or sidewalk areas if approved by the Engineer. It is the Contractor's responsibility to obtain an area for the storage of equipment and materials. The Contractor shall obtain the Engineers approval of a site for storage of equipment and materials prior to arranging for or delivering equipment and materials to the site. Prior to move -in, the Contractor shall take photos of the laydown area. The Contractor shall restore the laydown area to its pre - construction condition. The Engineer may require new base and pavement if the pavement condition has been compromised during construction." 7 -10.3 Street Closures, Detours and Barricades. Add to this section: 'The Contractor shall prepare a traffic control /pedestrian detour plan (Plan) in accordance with the Standard Specifications and WATCH. The Contractor will be responsible for processing and obtaining approval of the Plan from the Engineer. Such Plan shall have included the following provisions: . 1. The sidewalk may be closed continuously during non -work hours only during concrete curing operations on weekdays. The sidewalk shall be open for public use from 5:00 p.m. on any non -work day and on Friday at 4:00 p.m. to 8:00 a.m. the following Monday. 2. The Contractor shall ramp each end of the sidewalk removal whenever the sidewalk is open and a "step- down" condition exists between the removed sidewalk and the existing improvements. 3. The Contractor shall detour sidewalk users to use the alleys and street ends adjacent to the work while the sidewalk is closed. 4. The Contractor shall barricade /delineate the existing bulkhead coping adjacent to the work to the extent as to prevent the public from walking on top of the bulkhead coping to bypass the sidewalk closure. 5. The Contractor shall provide access for the adjacent residents to reach their private docks when requested. • • SP8OF13 6. The Contractor shall work with the United States Postal Service to make provisions for mail delivery to the residents. 7. All pedestrian detour barricades used during the hours of darkness shall be either lighted or be equipped with battery powered operational flashing beacons." 7 -10.4 Safety 7- 10.4 -1 Safety Orders. Add to this section: "The Contractor shall be solely and completely responsible for conditions of the job -site, including safety of all persons and property during performance of the work. The Contractor shall fully comply with all State, Federal and other laws, rules, regulations, and orders relating to the safety of the public and workers. The right of the Engineer or the City's Representative to conduct construction review or observation of the Contractor's performance shall not include review or observation of the adequacy of the Contractor's safety measures in, on, or near the construction site." 7 -10 PUBLIC CONVENIENCE AND SAFETY 7 -10.5 "No Parking" Signs. The Contractor shall install, and maintain in place "NO PARKING -TOW AWAY" signs (even if streets have posted "NO PARKING" signs) which he shall post at least forty -eight hours in advance of the need for enforcement. The signs will be provided at no cost to the Contractor, except that, the City reserves the right to charge $1.50 per sign following abuse or wastage of the signs by the Contractor. In addition, it shall be the Contractor's responsibility to notify the City's Police Department at (949) 644 -3717 for verification of posting at least forty -eight hours in advance of the need for enforcement. The signs shall (1) be made of white card stock; and (2) have minimum dimensions of 12- inches wide and 18- inches high. The Contractor shall print the hours and dates of parking restriction on the "NO PARKING -TOW AWAY" sign in 2 -inch high letters and numbers. A sample of the completed sign shall be reviewed and approved by the Engineer prior to posting. 7 -10.7 Notices to Residents. Ten working days prior to starting work, the Contractor shall deliver a construction notice to residents within 500 feet of the project, describing the project and indicating the limits of construction. The City will provide the notice. Forty -eight hours prior to the start of construction, the Contractor shall distribute to the residents a second written notice prepared by the City clearly indicating specific dates in the space provided on the notice when construction operations will start for each block or street, what disruptions may occur, and approximately when construction will be complete. An interruption of work at any location in excess of 14 calendar days shall require re- notification. The Contractor shall insert the applicable dates and times at the time the notices are distributed. • SP9OF13 The written notices will be prepared by the City, but shall be completed and distributed by the Contractor. Errors in distribution, false starts, acts of God, strikes or other alterations of the schedule will require Contractor re- notification using an explanatory letter furnished by the City. 7 -15 CONTRACTOR'S LICENSES. At the time of the award and until completion of work, the Contractor shall possess a valid General Engineering Contractor "A" License. The contractor that installs the seawall sealant material as shown on the Plans and these Specifications shall possess an "A" License or a Concrete Related Services - "D06" Contractor License or shall have satisfactorily completed at least three (3) years of similar waterproofing work. The work history and references of such work experience shall be submitted at the preconstruction meeting. At the start of work and until completion of work, the Contractor and all Sub - contractors shall possess a Business License issued by the City of Newport Beach. 7 -16 CONTRACTOR'S RECORDS /AS BUILT DRAWINGS. A stamped set of approved plans and specifications shall be on the job site at all times. In addition, the Contractor shall maintain "As- Built" drawings of all work as the job progresses. A separate set of drawings shall be maintained for this purpose. These drawings shall be up -to -date and reviewed by the Engineer at the time each progress bill is submitted. The "As- Built" plans shall be submitted and approved by the Engineer prior to final payment or release of any bonds. The Contractor shall maintain books, records, and documents in accord with generally accepted accounting principles and practices. These books, records, and documents shall be retained for at least three years after the date of completion of the project. During this time, the material shall be made available to the Engineer. Suitable facilities are to be provided for access, inspection, and copying of this material. SECTION 9 - -- MEASUREMENT AND PAYMENT 9 -3 PAYMENT 9 -3.1 General. Revise paragraph two to read: "The unit and lump sum prices bid for each item of work shown on the proposal shall include full compensation for furnishing the labor, materials, tools, and equipment and doing all the work, including restoring all existing improvements, to complete the item of work in place and no other compensation will be allowed thereafter. Payment for incidental items of work not separately listed shall be included in the prices shown for the other related items of work. The following items of work pertain to the bid items included within the Proposal: Item No. 1 Mobilization: Work under this item shall include providing bonds, insurance and financing, establishing a field office, preparing the SWPPP or BMP Plan • • SP 10 OF 13 and construction schedule, and all other related work as required by the Contract Documents. Item No. 2 Construction Zone and Traffic Control: Work under this Item shall include providing the required traffic control including, but not limited to, preparation of traffic control and pedestrian detour plans, temporary installation of construction zone and traffic control devices, distribution of notices to residents, and all other work necessary to comply with the WATCH and the City of Newport Beach requirements. Item No. 3 Miscellaneous Below -Grade Removal, Disposal and Backfill: Work under this Item shall include, but not limited to, the removal and disposal of existing unsuitable materials below the existing sidewalk panels such as slurry, stones, debris, and other materials as directed by the Engineer. The costs to import, place, and compact the clean backfill materials to the bottom of the proposed sidewalk shall have been included as a part of the unit bid price. Item No. 4 Remove and reconstruct P.C.C. Sidewalk: Work under this Item shall include the costs of all labor, materials, and equipment for sawcuts, removals, disposal, import native sand bedding and backfill (or extra thick concrete section) at locations that do not require Miscellaneous Below -Grade Removal /Disposal / Backfill, compaction, new sidewalk, control joints at 12 -ft intervals, replacement of newly placed concrete sidewalk that has been damaged by vandalism, and to complete all other work items as required to complete the Work in place. Item No. 5 Fumish and Install 6 -inch PVC Pipe: Work under this Item shall include the costs of all labor, materials, and equipment for trench excavations, core drill existing manhole /catch basin, removals, disposal, shoring, dewatering during high tides — if needed, storm drain pipe, pipe elbows /wyes, backfill, backfill compaction, connections to tie into the existing drainage systems, and to complete all other work items as required to complete the Work in place. Item No. 6 Furnish and Install Area Drain: Work under this Item shall include the costs of all labor, materials, and equipment to install the area drains, including all fittings, sleeves and all other work items as required to complete the Work in place. Item No. 7 AdjustlReconstruct Existing Manhole Frame and Cover to Grade: Work under this Item shall include the costs of all labor, materials, and equipment to adjust, or reconstruct as necessary, the existing manhole frame and cover to grade. Item No. 8 Replace Existing Electrical Pull Box and Cover: Work under this item shall include the cost to remove and dispose of the existing and install new traffic grade pull box and cover; reconnect existing street light wirings within the pull box, and complete all other items as required per the applicable City of Newport Beach Standard Plans. Item No. 9 Apply Seawall Sealant Below Edge of Coping: Work under this item shall include costs of all work required to prepare the surfaces where the Sonolastic • SP 11 OF 13 NP1 sealant will be placed and all other items of work as required by the manufacture's installation instructions and these Specifications. Item No. 10 Coping Joint Sealant Repair: Work under this item shall include costs of all work required to remove existing, prepare the surfaces, and apply Sonolastic 150 with VLM Technology sealant at the coping joints as shown on Plans and other items of work as required to complete the work in place. Item No. 11 Furnish and Install No Bicycle Symbol: Work under this item shall include costs of all work required to furnish and install the pre- fabricated "No Bicycle" symbol and other items of work as required to complete the work in place. Item No. 12 Survey: Work under this item shall include providing any and all surveying required to complete the work in place, including restoration of survey monuments and filing the corner records /record of survey with the County of Orange. Item No. 13 As -Built Drawings: Work under this item shall include costs of all work required to prepare the as -built drawings to the satisfaction of the Engineer. 9 -3.2 Partial and Final Payment. Add to this section: "Partial payments for mobilization and traffic control shall be made in accordance with Section 10264 of the California Public Contract Code." PART 2 CONSTRUCTION MATERIALS SECTION 201 - -- CONCRETE. MORTAR, AND RELATED MATERIALS 201 -1 PORTLAND CEMENT CONCRETE 201 -1.1 Requirements 201 -1.1.1 General. Add to this Section: "All portland cement concrete used on the work shall be 560 -C -3250. However, to expedite concrete curing, the Contractor may use a quick -cure type of concrete with a mix design as follows: Slump: 3 -inch to 4 -inch Aggregates: Grading C W/C ratio: 0.40 Sack content: 7.50 Cement: 700 pounds per cubic yard Fly Ash: None Sand: 1,365 pounds per cubic yard Water: 34.0 gallons per cubic yard Entrained air: 1.25% Admixture WRDA 79: 35 ounces per cubic yard" • • SP 12 OF 13 201 -7 NON - MASONRY GROUT 201 -7.2 Quick Setting Grout. Add to this section: "The Contractor shall grout the area between an existing reinforced concrete structure and the new storm drain pipe with a quick setting grout." SECTION 209 - -- ELECTRICAL COMPONENTS 209 -2 MATERIALS 209 -2.5 Pull Box. All replacement pull boxes used for this project shall be Eisel Enterprises #3 -1 /2F concrete pull box (E35FPB) complete with an Armorcast Products 20K traffic cover (A6001922SMT- Electric). SECTION 215 - -AREA DRAINS 215 -1 General. All area drains installed for this Work shall be Alhambra Foundry Part No. A- 338 -4, with anti - vandal galvanized body and brass top or equivalent that is similar in dimensions and functions as approved by the Engineer. SECTION 216 -- PREFORMED "NO BICYCLE" SYMBOL 216 -1 General. All preformed thermoplastic "No Bicycle" Symbol shall be HotTape 75 mil. NO BICYCLE symbol Red/White (Part No. 894738) by Zumar Industries, Inc., Telephone 213 -798 -7024 SECTION 217 - -- SPECIALTY REPAIR MATERIALS 217 -1 General. Seawall sealant to be used for this project shall be Sonolastic NP1; and sealant for coping joint shall be Sonolastic 150 with VLM Technology by Sonneborn. PART 3 CONSTRUCTION METHODS SECTION 300 - -- EARTHWORK 300 -1 CLEARING AND GRUBBING 300 -1.3 Removal and Disposal of Materials Add to this Section: 'Removal and disposal of material shall be done by City approved Licensed and Franchised Commercial Solid Waste Haulers. A current list of approved haulers can be found at http: / /www. city. newpo rt-bea ch. ca. u s/G S V/F ra ch ised %20 H a u I e rs. htm." • • SP 13 OF 13 300 -1.3.1 General. Replace this Section with: "All unsalvageable removed material shall become the property of the Contractor and be disposed of at the Contractor's expense. All removal and disposal costs shall be included in the unit price bid for that item of work. Excess native sand not reused for backfill shall be disposed of off -site. No excess sand shall be deposited onto the beach adjacent to the Work. The Contractor shall not dispose of any interfering private improvements within and /or adjacent to the work limits. All existing private improvements removed or damaged by the Contractor to facilitate the work shall be rebuilt to their condition prior to the work. In case of errant removal of existing private improvements, the Contractor shall furnish all replacement materials and labor at his own costs to restore the affected improvements to their condition prior to the damage." 300 -1.3.2 Requirements (c) Concrete Curb, Walk, Gutters, Cross Gutters, Driveways, and Alley Intersections. Replace the first sentence of this Section with, "Saw cuts shall be neatly made to a minimum of two (2) inches." and replace the words 1'% -inch" of the last sentence with the words "two (2) inches." 300 -1.5 Solid Waste Diversion. Non - reinforced concrete and asphalt wastes generated from the job site shall be disposed of at a facility that crushes such materials for reuse. Excess soil and other recyclable solid wastes shall not be disposed of at a sanitary landfill. The Contractor shall maintain monthly tonnage records of total solid wastes generated and solid wastes disposed of at a sanitary landfill. The Contractor shall report said tonnage monthly to the Engineer on a form provided by the Engineer and provide appropriate confirmation documentation from the recycling facility. F:\USERSIPBYNSharedVCoMracts \FY 05- 06\05 -06 BALBOA ISLAND BAYFRONT 03796GPECS G3796.doc