HomeMy WebLinkAboutItem 4.09 Historic Pk Negotiate AgmtG~~~ OF DU~~2
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STAFF REPORT C I T Y C L E R K
DUBLIN CITY COUNCIL File # ^~~0^-~3~
DATE: June 1, 2010
TO: Honorable Mayor and City Councilmembers
FROM: Joni Pattillo, City Manager
SUBJEC : Authorization to Negotiate Agreement for Completion of Dublin Historic Park
Phase I Project
Prepared By: John D. Bakker, City Attorney
EXECUTIVE SUMMARY:
Due to the termination of the agreement with the Elite Landscaping, Inc. for the Dublin Historic
Park Phase I Project, City Staff is seeking City Council authorization to negotiate an agreement
for the completion of the Project without conducting a competitive bid. The negotiated
agreement will be subject to approval by the City Council.
FINANCIAL IMPACT:
The financial impact will be determined in the course of the negotiations.
RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution Authorizing the City Manager to
Negotiate an Agreement for Completion of the Dublin Historic Park Phase I Project without
Conducting a Second Competitive Bid Process.
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Submitted By
City Attorney
Reviewe
Assistant City Manager
Page 1 of 3 ITEM NO. ~•
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DESCRIPTION:
On December 16, 2008, after the City completed a competitive bid process in compliance with
Public Contract Code sections 20160 et seq., the City Council awarded a contract to Elite
Landscaping, Inc. for the perFormance of certain work constituting the Dublin Historic Park
Phase I Project (the "Project"). The work on the project is approximately 50% complete.
Subsequent issues with the Project have resulted in a need to terminate the City's Agreement
with Elite Landscaping, and to enter into a new agreement with another contractor to complete
the work.
Notwithstanding that the City has complied with its obligations under the Public Contract Code
by conducting a public bidding process for the Project in 2008, Staff is asking that the City
Council adopt a Resolution that makes certain findings regarding the Project and that
authorizes staff to negotiate a new agreement without putting the remainder of the project out to
bid.
Even if the Public Contract Code required the City to re-bid the remainder of the Project, the
Common Law provides a well recognized exception to the competitive bidding requirement for
public entities. This exception exists where the nature of a contract or project is such that
competitive proposals would be unavailing or would not produce an advantage, thereby
rendering any advertisement for competitive bidding undesirable, impractical or impossible.
Graydon v. Pasadena Redevelopment Agency (1980) 104 Cal. App. 3d 631. The rationale for
the exception is found in the purposes of the provisions requiring competitive bidding in letting
public contracts. Those purposes are to guard against favoritism, improvidence, extravagance,
fraud and corruption, to prevent waste of public funds, and to obtain the best economic result
for the public. Thus, where competitive proposals are unavailing as affecting the final result of
the public works project, or where competitive proposals do not produce any advantage to the
public agency, competitive bidding is not applicable. (See Graydon, 104 Cal.App.3d. at 636).
In justifying the negotiation of a new contract without conducting a second round of competitive
bidding, the attached Resolution (Attachment 1) describes the following circumstances at the
Project which demonstrate that competitive bidding would not be to the City's advantage,
primarily because of the delay it would create in getting the contract in place and the work
restarted. In particular, competitive bidding would result in additional delays of at least 60 days:
• The Project site currently contains a large, open trench, which is adjacent to a parking
lot owned by the City and rented to a nearby business. This open trench poses a
safety hazard to any person who may enter upon the project site and is also
impacting the condition of the adjacent parking lot such that it too may pose a safety
risk as well as a potential City liability.
• The Project site also contains four unsecured buildings in various states of repair.
These buildings constitute an attractive nuisance and could cause serious harm to
persons trespassing on the site. Damage to these buildings may also significantly
increase the Project's costs.
• The Project site contains a large amount of unsecured materials delivery boxes
which, if the site is unattended, could be stolen, thus further increasing the City's
costs to complete the project.
Page 2 of 3
The Project site contains a variety of unsecured historical artifacts which, if stolen,
could not be easily replaced.
The City is also completing work on the East and West Dublin BART Corridor
Enhancement Project (the "Enhancement Project"), a portion of which is adjacent to
the Park Project. The portion of the Enhancemenf Project adjacent to the Park
Project includes a pedestrian crosswalk, pedestrian crossing lighting and certain
landscaping work performed on the street median. Completion of these adjacent
portions of the Enhancement Project is dependent on completion of the Park Project
for provision of electricity to the pedestrian crossing lighting and landscape irrigation
system. The electrical contractor on the Enhancement Project has sent notice to the
Enhancement Project's general contractor stating that failure to complete work on the
electrical component of the Park Project may require the electrical contractor to revisit
the Enhancement Project site at additional cost to the City.
For the above reasons, Staff recommends that the City Council adopt the resolution authorizing
the City Manager to negotiate an agreement for completion of the Dublin Historic Park Phase I
Project without conducting a second competitive bid process. Once negotiated, an agreement
would be presented to the City Council for approval.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS: 1. Resolution Authorizing the City Manager To Negotiate an
Agreement For Completion of the Dublin Historic Park Phase I
Project Without Conducting a Second Competitive Bid Process.
1432943.1
Page 3 of 3
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RESOLUTION NO. XX -10
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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AUTHORIZING THE CITY MANAGER TO NEGOTIATE AN AGREEMENT FOR
COMPLETION OF THE DUBLIN HISTORIC PARK PHASE I PROJECT WITHOUT
CONDUCTING A SECOND COMPETITIVE BID PROCESS
WHEREAS, the City of Dublin, after conducting a public bidding process in compliance with
Public Contract Code sections 20160 et seq., awarded a contract to Elite Landscaping, Inc., with
compensation set at $2,476,690 for the completion of certain work constituting the Dublin Historic
Park Phase I Project (the "Park Project"); and
WHEREAS, subsequent events necessitated that the City terminate said contract with Elite
Landscaping, Inc.; and
WHEREAS, the Park Project site currently contains a large, open trench, which is adjacent to
a parking lot owned by the City and rented to a nearby business; and
WHEREAS, said open trench poses a safety hazard to any person who may enter upon the
project site and is also impacting the condition of the adjacent parking lot such that it too may pose a
safety risk as well as a potential City liability; and
WHEREAS, the Park Project site also contains four unsecured buildings in various states of
repair, which buildings constitute an attractive nuisance and could cause serious harm to persons
trespassing on the site, as well as the possibility of significantly increased costs to the City in
repairing any damage that may be done to said buildings; and
WHEREAS, the Park Project site also contains a large amount of unsecured materials
delivery boxes which, if the site is unattended, could be stolen, thus further increasing the City's
costs to complete the Park Project; and
WHEREAS, the Park Project site also contains a variety of unsecured historical artifacts
which, if stolen, could not be easily replaced; and
WHEREAS, the City is also completing work on the East and West Dublin BART Corridor
Enhancement Project (the "Enhancement Project"), a portion of which is adjacent to the Park
Project; and
WHEREAS, the portion of the Enhancement Project adjacent to the Park Project includes a
pedestrian crosswalk, pedestrian crossing lighting and certain landscaping work performed on the
street median; and
WHEREAS, completion of the adjacent portions of the Enhancement Project is dependent on
completion of the Park Project for provision of electricity to the pedestrian crossing lighting and
landscape irrigation system; and
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ATTACHMENT 1
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WHEREAS, the electrical contractor on the Enhancement Project has sent notice to the
Enhancement Project's general contractor stating that failure to complete work on the electrical
component of the Park Project may require the electrical contractor to revisit the Enhancement
Project site at additional cost to the City; and
WHEREAS, conducting a second public bidding process for the completion of the work not
yet performed under the initial Park Project agreement would require a minimum of 60 days before
work on the Park Project could recommence; and
WHEREAS, a well recognized exception in Common Law to the competitive bidding
requirement for public entities exists where the nature of a contract or project is such that
competitive proposals would be unavailing or would not produce an advantage, thereby rendering
any advertisement for competitive bidding undesirable, impractical or impossible (see Graydon v.
Pasadena Redevelopment Agency (1980) 104 Cal. App. 3d 631, 635; 164 Cal. Rptr. 56, 58); and
WHEREAS, the rationale for the adoption of the above exception is found in the purposes of
the provisions requiring competitive bidding in letting public contracts. Those purposes are to guard
against favoritism, improvidence, extravagance, fraud and corruption; to prevent waste of public
funds; and to obtain the best economic result for the public (see Graydon, 104 Cal.App.3d. at 636);
and
WHEREAS, it has also been recognized by Common Law that where competitive proposals
work an incongruity and are unavailing as affecting the final result of the public works project, or
where competitive proposals do not produce any advantage, or where it is practically impossible to
obtain what is required and to observe such form, competitive bidding is not applicable (see
Graydon, 104 Cal.App.3d. at 636).
WHEREAS, in addition to the Common Law exception listed above, Public Contract Code
Section 22050 permits a city to forego formal competitive bidding requirements if its City Council
passes a resolution by a four-fifths vote declaring that the public interest and necessity demand
immediate expenditures of city funds to safeguard life, health or property, without giving notice for
bids to let contracts; and
NOW, THEREFORE, BE IT RESOLVED THAT the City of Dublin City Council does hereby
make the following findings:
A. The circumstances surrounding the uncompleted Park Project are such that the
necessary delay entailed by conducting a second competitive bid for the Park Project for completion
of the remaining portions of the Park Project would impose significant additional financial burdens,
impose a risk of additional liability to the City, pose an unacceptable safety risk to the public, such
that the conduct of said bid process would be unavailing, undesirable and would not be to the City's
advantage, and that waiver of the public bidding requirements in this instance would not produce any
advantage to the City.
B. That such a proposed negotiation of a contract would not constitute any sign of
favoritism, improvidence, extravagance, fraud or corruption.
BE IT FURTHER RESOLVED the City Council of the City of Dublin does hereby
authorize the City Manager to negotiate an agreement for the completion of the Historic Park
Phase I Project without conducting a second competitive bid process. Once negotiated, the
agreement shall be presented to the City Council for approval.
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PASSED, APPROVED AND ADOPTED this 1st day of June, 2010, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
1426178.1
Mayor