HomeMy WebLinkAboutC28860 - Design/Build Civic Ctr Park Amphitheater CITY OF PALM DESERT
DEVELOPMENT SERVICES
STAFF REPORT
REQUEST: Award the Design/Build Contract for the Civic Center Park
Amphitheater to Doug Wall Construction, Inc., Bermuda
Dunes, California.
SUBMITTED BY: Jay Niemczak, Parks and Facilities Manager
CONTRACTOR: Doug Wall Construction
78-450 Avenue 41
Bermuda Dunes, CA 92203
DATE: June 11, 2009
CONTENTS: Agreement Contract xo. c2ssbo
Recommendation:
By Minute Motion:
1. Determine that MG Enterprises, Inc., and Zeus Construction bids are non-
responsive.
2. Award the Design/Build Contract for the Civic Center Park Amphitheater
to Doug Wall Construction Inc., Bermuda Dunes, California, in an
amount not to exceed $397,645.00.
Discussion:
On May 15, 2009, Staff advertised and requested proposals for the design/build project
at the Civic Center Park amphitheater. Staff has reviewed the proposals and considers
MG Enterprises, Inc., and Zeus Construction bids to be non-responsive based on the
following reasons:
1) MG Enterprises, Inc. did not meet the fo�lowing requirements:
a. No local office.
b. Had insufficient corporate safety and maintenance inspection program.
2) MG Enterprises, Inc. requested a waiver of the IAS Certification, but did not offer an
equal certification for safety and quality when fabricating structural steel components
such as the new amphitheater.
Staff Report
Award of the Design/Build Amphitheater Contract
June 11, 2009
Page 2 of 2
3) MG Enterprises, Inc. requested a waiver of the requirement for a rope access
technician, which Staff would recommend granting based on the provision of
adequate insurance.
4) Zeus Construction did not submit the following items as required in the bid
documents:
a. Concept drawing
b. With bid submittals; Items C2, C3, C5 and C6 in Section 1.3 of the bid
documents.
Therefore, Staff recommends that the City Council award the Design/Build Contract for
the Civic Center Park amphitheater to Doug Wall Construction Inc., Bermuda Dunes,
California, in an amount not to exceed $397,645.00, and authorize the Mayor to execute
the agreement.
Funds are available for this work in the Civic Center Amphitheater Account No. 233-
4668-454-4001.
Submitted By: Department ad:
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J iemczak Ja is Steele
arks Maintenance Supervisor Pa ks and Recreation Services Manager
Appro :
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Homer Cro Paul Gibson
A or velopment Services Director of Finance
CiTY COUNCTL AC�iON'
J Wohlmuth APPROVED DENtED
Manager RECEIVED OTHER
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AYES: c�
NOES:
ABSENT:
ABSTAIN: �
VERIFIED BY: ' rnc
� Original on File with City lerk's Office
GIDevServicesVay NiemczaklAmphdheatrelaward amphdheater contract.doc
Contract No. C28860
AGREEMENT
THIS AGREEMENT is made and entered into the City of Palm Desert on this 11 th day of
June, 2009, by and between THE CITY OF PALM DESERT, a municipal corporation,
hereinafter referred to as "CITY", and Doug Watl Construction, hereinafter referred to as
"CONTRACTOR".
WITNESSETH:
WHEREAS, on June 11, 2009, the CITY invited Doug Wall Construction to submit a
design/build amphitheater improvement project located at 73-510 Fred Waring Drive.
WHEREAS, pursuant to said invitation, CONTRACTOR submitted a proposal, which
was accepted by CITY for said services.
NOW, THEREFORE, in consideration of their mutual promises, obligations, and
covenants hereinafter contained, the parties hereto agree as follows:
(1) CITY'S OBLIGATIONS. For furnishing services, as specified in this Agreement,
CITY will pay and CONTRACTOR shalt receive in full compensation, therefore
the total sum of three hundred ninety seven thousand six hundred forty five
dollars ($397,645.00) as set forth in the Contract Documents and adopted by the
CITY.
(2) CONTRACTOR'S OBLIGATION For, and in consideration of the payments and
agreements hereinbefore mentioned to be made and performed by CITY,
CONTRACTOR agrees with CITY to furnish the services and to do everything
required by this Agreement.
(3) HOLD HARMLESS AND INDEMNIFICATION. CONTRACTOR agrees to
defend, indemnify, and hold harmless The City of Palm Desert, its officials,
officers, employees, representatives, and agents from and against all claims
lawsuits, liabilities or damages of whatsoever nature arising out of our connection
with, or relating in any manner to, any act or omission of CONTRACTOR, his
agents, employees, subcontractors and employees thereof in connection with,
the perFormance or non-performance of this Agreement. The CONTRACTOR
shall thoroughly investigate any and all claims and indemnify the CITY and do
whatever is necessary to protect the City of Palm Desert, its official, officers,
employees, agents, and representatives as to any such claims, lawsuits,
liabilities or damages.
(4) AMENDMENTS. Any amendment, modification, or variation from the terms of
this Agreement shall be in wri�ing, signed by the CONTRACTOR and approved
by the City Council of the CITY.
Contract No. C28860
(5) TERMINATION. If, during the term of this Agreement, CITY determines that
CONTRACTOR is not faithfully abiding by any term or condition contained
herein, CITY may notify CONTRACTOR in writing of such defect or failure to
perform; which notice must give CONTRACTOR a three-day notice of time
thereafter in which to perform said work or cure the deficiency. If CONTRACTOR
fails to perForm said work or cure the deficiency within the three (3) days
specified in the notice, such shall constitute a breach of this Agreement and CITY
may terminate this Agreement immediately by written notice to CONTRACTOR
to said effect. Thereafter, except as otherwise set forth herein, neither party shall
have any further duties, obligations, responsibilities, or rights under this
Agreement except, however, any and all obligation of CONTRACTOR's surety
shall remain in full force and effect, and shall not be extinguished, reduced, or in
any manner waived by the termination hereof. In said event, CONTRACTOR
shall be entitled to the reasonable value of its services performed from the
beginning of the period in which the breach occurs up to the day it received
CITY's Notice of Termination, minus any offset from such payment representing
the CITY's damages from such breach. CITY reserves the right to delay any such
payment until completion of confirmed abandonment of the project, as may be
determined in the CITY's sole discretion, so as to permit a full and complete
accounting of costs. In no event, however, shall CONTRACTOR be entitled to
receive in excess of the compensation quoted in its bid.
The City Council may terminate the contract with 30 days written notice for any
reason.
(6) INCORPORATED BY REFERENCE. Exhibits, proposal letters, Addendum
Nos.1; Change Orders; additional or supplemental specifications, drawing, maps
or diagrams, and CITY issued forms relating to this project, are hereby
incorporated in and made a part of this Agreement.
{7) COMPLETE AGREEMENT. This written Agreement, including all writings
specifically incorporated herein by this reference, shall constitute the complete
agreement between the parties hereto. No oral agreement, understanding, or
representation not reduced to writing and specifically incorporated herein shall be
of any force or effect, nor shall any such oral agreement, understanding, or
representation be binding upon the parties hereto.
(8) ANTI-DISCRIMINATION. In the performance of the terms of this Agreement,
CONTRACTOR agrees that it will not engage in, nor permit such subcontractors
as it may employ, to engage in discrimination in employment of any person
because of the age, race, color, sex, national origin or ancestry, or religion of
such persons. Violation of this provision may result in the imposition of penalties
referred to in Labor Code Section 1735.
(9) AUDIT. CITY shall have the option of inspecting and/or auditing all records and
other written material used by CONTRACTOR in preparing its statements to
CITY as a condition precedent to any payment to CONTRACTOR.
Contract No. C28860
(10) NOTICE. All written notices to the parties hereto shall be sent by United States
mail, postage prepaid by registered or certified mail, return receipt requested,
addressed as follows:
Office of the City Clerk
CITY OF PALM DESERT
73-510 Fred Waring Drive
Palm Desert, CA 92260
(11) LITIGATION COSTS. In the event an action is filed by either party to enforce any
rights or obligations under this Agreement, the prevailing party shall be entitled to
recover reasonable attorney's fees and court costs, in addition to any other relief
granted by the court.
(12) AUTHORITY TQ`EXECUTE AGREEMENT. Both CITY and CONTRACTOR do
warrant that each individual executing this Agreement on behalf of each party is
a person duly authorized.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed the day and year first hereinabove written.
CITY OF PALM DESERT
A Municipal Corporation CONTRACTOR
ROBERT A. SPIEGEL, MAYOR
CITY OF PALM DESERT, CALIFORNIA
ATTEST: APPROVED AS TO CONTENT:
RACHELLE D. KLASSEN JANIS STEELE
CITY CLERK PARKS AND RECREATION
SERVICES MANAGER
APPROVED AS TO FORM:
DAVID J. ERWIN, CITY ATTORNEY
PERFORMANCE
KNOW ALL MEN BY THESE PRESENTS: That whereas the City of Palm Desert has
awarded to Doug Wall Construction hereinafter designated as the "Principal", a contract
for:
DESIGN/BUILD PROJECT
CIVIC CENTER PARK AMPHITHEATER SHADE STRUCTURE
WHEREAS, said Principal is required under the terms of said contract to furnish a good
and sufficient bond for the performance of said contract:
NOW THEREFORE, WE, Doug Wall Construction the Principal, and
as Surety, are held and firmly bound unto the City of Palm
Desert hereinafter called the Owner, in the penal sum of Three Hundred Ninety Seven
Thousand six hundred forty five Dollars ($397,645.00), being 100% of the contract
amount in lawful money of the United States of America for the payment of which sum
well and truly to be made, we hereby bind ourselves, our heirs, executors,
administrators, and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if the above bounded Principal,
his executors, heirs, administrators, and successors, or assigns, shall in all things stand
to and abide by, and well and truly keep and perForm the covenants and agreements in
the said contract and any alterations thereof made as therein provided, on his or their
part, to be kept and perFormed at the time and in the manner therein specified, and in all
respects according to their true intent and meaning, and shall indemnify and save
harmless the Owner, its officers and agents, as therein stipulated, then this obligation
shall become null and void; otherwise, it shall be and remain in full force and virtue.
And the said Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alteration or addition to terms of the contract or to the work to be
perFormed thereunder or the specifications accompanying the same 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 terms of the contract or to the work or
the specifications.
Should it become necessary for the Owner to institute a lawsuit or any other legal
proceeding to enforce the terms and conditions of this bond, then all costs of said
proceeding, including attorneys' fees, shall be awarded to the prevailing party.
IN WITNESS WHEREOF, identical counterparts of this instrument, each of which shall
for all purposes be deemed an original thereof, have been duly executed by the
Principal and Surety above named, on this day of , 20
SURETY PRINCIPAL
BY: BY:
INSURANCE COMPANY and/or AGENT
ADDRESS
TELEPHONE NUMBER
Payment Bond
KNOW ALL MEN BY THESE PRESENTS:
THAT WHEREAS, the City of Palm Desert (sometimes referred to hereinafter as
"Obligee") has awarded to Doug Wall Construction (hereinafter designated as the
"CONTRACTOR"), an agreement dated June 11, 2009, described as follows:
design/build of the Civic Center Park amphitheater shade structure, (hereinafter
referred to as the "Contract"); and
WHEREAS, said CONTRACTOR is required to furnish a bond in connection with said
Contract, and pursuant to Section 3247 of the California Civil Code;
NOW, THEREFORE, we, Doug Wall Construction, the undersigned CONTRACTOR, as
Principal, and a corporation organized and existing under the
laws of the State of California, and duly authorized to transact business under the laws
of the State of California, as Surety, are held and firmly bound unto the City of Palm
Desert and to any and all persons, companies or corporations entitled to file stop
notices under Section 3181 of the California Civil Code, in the sum of Three Hungred
Ninety Seven Six Hundred Forty Five Dollars ($397,645.00), said sum being not less
than one hundred percent (100%) of the total amount payable by the said Obligee under
the terms of the said Contract, for which payment well and truly to be made, we bind
oursetves, our heirs, executors and administrators, successors and assigns, jointly and
severally, firmty by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if said CONTRACTOR, his or
its heirs, executors, administrators, successors or assigns, or Subcontractors, shall fail
to pay for any materials, provisions or other supplies, implements, machinery or power
used in, upon, for or about the performance of the Public Work contracted to be done,
or to pay any person for any work or labor of any kind, or for bestowing skills or other
necessary services thereon, or for amounts due under 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 wages of
employees of said CONTRACTOR and his or its Subcontractors pursuant to Section
13020 of the Unemployment Insurance Code with respect to such work and labor as
required by the provisions of Section 3247 through 3252 of the Civil Code, or for any
amounts required to be deducted, withheld, and paid over to the Franchise Tax Board
or Internal Revenue Service from the wages of employees of the CONTRACTOR or his
or its Subcontractors, the Surety or Sureties hereon will pay for the same in an amount
not exceeding the sum specified in this bond, otherwise the above obligation shall be
void. In addition to the provisions herein above, it is agreed that this bond will inure to
the benefit of any and all persons, companies and corporations entitled to serve stop
notices under Section 3181 of the Civil Code, so as to give a right of action to them or
their assigns in any suit brought upon this bond.
The Surety, for value received, hereby stipulates and agrees that no change, extension
of time, alteration or addition to the terms of the said Contract or to the work to be
perFormed thereunder or the Specifications 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, alteration or addition to the terms of the Contract or to the
Specifications.
No final settlement befinreen the Obligee and the CONTRACTOR hereunder shall
abridge the right of any beneficiary hereunder, whose claim may be unsatisfied.
CONTRACTOR and Surety agree that if the Obligee is required to engage the services
of an attorney in connection with the enforcement of the bond, each shall pay Obligee's
reasonable attorney's fees incurred, with or without suit, in addition to the above sum.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this
day of 20
,
PRINCIPAL/CONTRACTOR: SURETY:
(Typed Name of Surety)
By: By.
(Signature) (Signature of Attorney-in-Fact)
(Typed Name and Title) (Typed Name of Attorney-in-Fact)
The rate of premium on this bond is $ per thousand.
The total amount of premium charged: $
(the above must be filled in by corporate surety).
IMPORTANT: Surety companies executing bonds must possess a certificate of
authority from the California lnsurance Commissioner authorizing them to write surety
insurance defined in Section 105 of the California lnsurance Code, and if the work or
project is financed, in whole or in part, with federal, grant or loan funds, it must also
appear on the Treasury Department's most current list (Circular 570 as amended).
THIS IS A REQUIRED FORM.
Any cfaims under this bond may be addressed to:
(Name,Address and Telephone No.of Surety)
(Name,Address and Telephone No.of agent or representative for service of process in California if different from above)
06/10/2009 22:43 2153335081 PAGE 02
M� Entexpx�ses inc. General contractors
515 l Yeloz Ave, Tarz,ana, C.A. $1$.384.27U7 Fax 8l 8.774A219
CA state caniractors license#902054
City c���a�rta laes�rt 6/11/09
73510 Fred Warring Dr
Pa.l�aa.�Jesert CA
'Via�'s� 760.341.7098
RF,: Civic center arnphitheater structure. Bid date 5129/09
�'o- Cxty rnanager and city council members
C���y yeste�rday by�oiz�cxde�.ce a�me ca��xa�g th�e Par�Cs arad xecreation d�artment, I faund
out fram Mr. St�ele that a bidder that was higher then my bid was gaing to be awarded
the job. I�rotest this decisio�and � don't tkuinac it is pr4per for a public agency to conduct
business thxs way. I nevez��ecexved a tel.ep�Qz�e ca��o�'atay arequest�or�z�#�vz�at�on or an�y
verificariar�. I spe�t drn�e�d z�;az�ey ���x��out th,e bad a�d supp��ed a boz�d. I request tk�at
you delay awazding the�mject until you explain fio n�r�vhy yau are not awarding me the
Contract.
� azr�a�t�cl�az��z�y supplie�r's letter to suppart my elaim.
Respectful ly
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Sam Goldman
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06/10I2009 22:43 21533350S1 PAGE 03
Greetings,
Sauthern Hemisphere Shades, tnc. in association with Hendee products,and on behalf of M.G.
Enterprises, Inc.would like to cantest the award of the Civic Cenier amphitheater bid.
The Givi[Center amphitheater project was aw�rd�d to a higher bidder based on our product not
being lA5(lnternatidnal Attreditation Service)certified.Southern Hemisphere Shedes asked for
alternative produ�t approval to Janis Steele�as per the bid request.We were informed th�t our product
was acceptable and thus allowable for the Civic Center amphitheater bid.Therefor�wre da not
understand the disqualification of our shade product.
As of June 11,2009 there is only one fabric shade structure company with IA5 certifica#ion, USA
Shade and its subsidiaries.We contacted the director of the International Attreditation Service and they
confirmed that the only sh�de structure tomp�rty with th�ir�ccreditation is liSA Shade and its
subsidiaries.As a result the requirement a#IAS certification eliminates aN other shade products,and
campanies,from bidding. tA5 certification is not a standard certification in the shade and fabric
structuee industry_The targest shade and fabric structure company in the tountry(they covered the
Houston Texans football stadium, L.A.Galaxy sotcer stadium�ett.)do not have IAS tert+fication.We
would request that this specification be reviewed by your city for amendment.
In addition our shade structures have been utilized by various titfes and government 8gen�ies
throughr,ut Calif�rnia and the United States{City of Sacramenta,City of Monterey�ark,the Uniced
States Atr far[e,the United States Navy)_Plus our shade products have been used by majar companies
in[luding Wal-Mart, K-Mart,and Lockheed Martin_We c8n get you references for any completed praject
at your request.
If the IAS requirement is essen#ial we have anather pption_We can ha�e an IAS certified
inspector review your products fabrication. If necessary,they will certify your product as IAS compliant.
We can da this at no additfonal cost ta the city.
We appreciate the oppartunity to provide our produtts and services to ybur city.Dur request to
contest this bid is provide you with the best product at the most affordable price. If yau have any
questions ar cancerns please feel free to cantatt me.
Sincereiy,
Andrew Koekemper
southern Hemisphere Shades, lnc.
(916)348-1391
06/10/2009 22:43 21533350$1 PAGE 01
M� Enterprises Inc. Creneral contractors
S 15 i Ve�az Ave,Tarzana, CA 9�3Sb
CA stau contracwrs�icez�sa#�02054
Te1818.384.27Q'I�'ax 818.774_0219
FAC9IMILE TR,ATTS�M�'�"T�1L SHEET
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