HomeMy WebLinkAboutMinutes - January 3, 1990M
CITY COUNCIL, CITY OF LODI
CARNEGIE FORLIM, 305 WEST PINE STREET
WEDNESDAY, JANUARY 3, 1990
7:30 P.M.
ROLL CALL Present: Council Members - Hinchman, Olson, Reid,
Pinkerton and Snider (Mayor)
Absent: Council Members - None
Also Present: City Manager Peterson, Assistant City
Manager Glenn, Community Development
Director Schroeder, Public Works Director
Ronsko, City Attorney McNatt, and City Clerk
Reimche
INVOCATION The invocation was given by Pastor Bob Mattheis, St.
Paul's Lutheran Church.
PLEDGE OF The Pledge of Allegiance was led by Mayor Snider.
ALLEGIANCE
PRESENTATIONS There were no presentations or awards made at this meeting.
CONSENT CALENDAR In accordance with report and recommendation of the City
Manager, Council, on motion of Council Member Reid,
Hinchman second, approved the following items hereinafter
set forth.
CLAIMS CC -21(a) Claims were approved in the amount of $3,233,113.06.
MINUTES The Minutes of December 6, 1989 and December 13, 1989
(Special Meeting) were approved as written.
PUBLIC HEARING SET -
REGARDING EXTENSION
OF SEWER CONNECTION
MORATORIUM
CC -6 The Council set a public hearing for February 21, 1990 to
CC -24(b) consider the extension of the sewer connection moratorium
CC -44 on residential development.
CC -51(a)
On April 6, 1988, the Council adopted Ordinance No. 1424
which imposed a moratorium on all new residential sewer
connections to the domestic system, pending the completion
of the plant expansion at the White Slough Wastewater
Facility. Although the Ordinance states in Section 2 that
it is effective "Until the date that the White Slough ...
expansion project is completed and operational", there is
probably need to formally extend this Ordinance. Under
State law (Government Code §65858), the maximum length of
time an ordinance adopted in the fashion of Ordinance 1424
can remain effective is 22 months and 15 days.
1
Continued January 3, 1990
187
In order to extend a moratorium, it is necessary to make
findings, and adopt a written report describing the
measures taken in the interim to alleviate the condition
which led to the adoption of the ordinance.
PLANS AND SPECIFICATIONS
FOR BLAKELY PARK POOL
STORAGE FACILITY, 1050 SOUTH
STOCKTON STREET APPROVED
CC -12.1(a) The City Council approved the plans and specifications for
Blakely Park Pool Storage Facility, 1050 South Stockton
Street and authorized advertising for bids.
The City Council was advised that this project is the
construction of a 240 square foot concrete block storage
building for pool equipment and supplies. The building
will be located immediately north of the mechanical
equipment on the east side of the new Mel Enze pool.
Also included is some additional concrete flatwork for
storing the pool cover reels.
Plans and specifications were prepared by Morris and
Wenell. They have been reviewed and approved by both the
Public Works and Parks and Recreation Departments and have
been processed by the Building Division.
SPECIFICATIONS FOR
ASPHALT MATERIALS FOR
THIRD AND FOURTH QUARTER
OF FISCAL YEAR 1989-90
APPROVED
CC -12.1(c) The City Council approved the specifications for asphalt
materials for third and fourth quarters for Fiscal Year
1989/90 and authorized advertising for bids to be received
Wednesday, January 17, 1990.
The City Council was advised that the City advertises for
asphalt materials on a semi-annual basis. This bid will
cover asphalt materials needed during the third and fourth
quarters of fiscal year January 1, 1990 through June 30,
1990.
A recap of the quantities is shown below:
ASPHALT MATERIALS QUANTITIES
3/8" Asphalt Concrete 1,000 Tons
1/2" Asphalt Concrete 150 Tons
2
188 Continued January 3, 1990
LEASE FOR VINEYARD
ADJACENT TO C -BASIN
ON EAST VINE STREET
EAST OF BECKMAN ROAD
APPROVED
CC -27(b) The City Council approved the lease for the rental of the
vineyard adjacent to C -Basin, on East Vine Street east of
Beckman Road, and authorized the City Manager and City
Clerk to execute the lease.
The City Council was informed that no work is anticipated
at C -Basin this year until after the time the grapes are
harvested. D. and B. Jungeblut, who farms the adjacent
property on the east side of the basin, wants to again rent
the four acres which the City owns. Because of the
configuration of the irrigation system and the grapes
themselves, the land must be farmed with the adjacent
property. The term of the lease is from January 1 through
the time the grapes are harvested or December 31, 1990,
whichever is first, and rent is $150 per acre.
Daryl Geweke, who rented the City vineyard to the south
of the basin, will be removing the vines from his property
and won't be renting that vineyard. It is anticipated that
these vines will be pulled in the near future.
FINAL MAP FOR LOT 1
IN LAKESHORE PROFESSIONAL
CENTER, 1420 SOUTH MILLS
AVENUE APPROVED
CC -46 The City Council approved the final map for Lot 1 in
Lakeshore Professional Center and directed the City Manager
and City Clerk to execute the map on behalf of the City.
This one -lot commercial subdivision is being developed by
Darrell Sasaki. All off-site improvements were
installed and fees paid under earlier development
agreements.
The subdivision is located at 1420 South Mills Avenue and
contains 0.58 acre with 12 proposed office units.
COMMENTS BY CITY
COUNCIL MEMBERS The following comments were received under the "Comments by
City Council Members" segment of the agenda:
CHRISTMAS TREE PICKUP
PROGRAM IN LODI
Mayor Snider posed questions regarding the Christmas tree
pickup program in Lodi this year.
3
Continued January 3, 1990 189/
DRAFT GENERAL PLAN
REVIEW CONTINUES
Mayor Snider announced that the next Special Joint Meeting
of the City Council and the Planning Commission regarding
the review of the City of Lodi Draft General Plan will be
held Wednesday, January 10, 1990 at 7:30 p.m. at the
Carnegie Forum. The focus of discussion for this meeting
will be the Land Use and Growth Management Element.
JOINT MEETING WITH
STOCKTON PLANNING
COMMISSION SUGGESTED
CC -6
Mayor Snider reported
that he had recently attended a
CC -35
Stockton
Planning
Commission meeting. The Stockton
Planning
Commission
informed Mayor Snider that it is
willing
to meet and
discuss the area between Eight Mile
Road and
Armstrong Road. Plans are going forward for this
meeting.
DISPOSAL
OF CHRISTMAS
TREES
Council Member Pinkerton stated that he had recently read
an article indicating that in the future it may be unlawful
to have Christmas trees because of the space they take in
landfills when they are disposed of.
COUNTY SOLID WASTE
MANAGEMENT PROGRAM UPDATE
Following an inquiry by Council Member Pinkerton, City
Mianager Peterson announced that the subject for discussion
at the January 16, 1990 Shirtsleeve Session will be the
County Solid Waste Management Program update. Further, the
City Manager gave a brief report regarding the subject.
COMMENTS BY THE
PUBLIC ON NON
AGENDA ITEMS The following comments were received under the "Comments by
the public on non -agenda items" segment of the agenda:
CITIZEN EXPRESSES
CONCERN REGARDING
GRAFFITI IN THE LODI AREA
CC -16 Mr. Arthur B. Price, 1056 Port Chelsea Circle, Lodi
addressed the City Council regarding his concern concerning
graffiti which is appearing in various areas throughout the
City including parks and playgrounds. Mr. Price
volunteered to assist in the cleanup of graffiti at the
English Oaks Commons Park.
4
190 Continued January 3, 1990
Mayor Snider directed that this matter be referred to the
Parks and Recreation Commission for discussion and
recommendation.
PUBLIC HEARINGS Notice thereof having been published according to law, an
affidavit of which publication is on file in the office of
the City Clerk, Mayor Snider called for the Public
Dearing to consider the appeal of Jessee Valenzuela of
an order to abate an unsafe structure at 321 East Pine
Street.
ABATEMENT OF UNSAFE
STRUCTURE AT 321 EAST
PINE STREET, LODI
CC -24(c) Community Development Director Schroeder addressed the City
Council regarding the matter advising that A Notice of
Public Nuisance and Order to Abate was issued to Mr. Jesse
Ruiz Valenzuela, 4521 Rutherford, E1 Paso, TX 79924,
on November 6, 1989.
r Mr. Valenzuela contacted the Building Division on October
27, 1989 and was issued a permit for the following: 1)
Special Inspection to determine the extent of modification
to the detached accessory building to allow use as
additional conditioned living space in conjunction with the
main living unit; 2) Installation of a new 10D amp
electrical service on the main residential structure; and
3) installation of a sub -panel on the accessory building.
The special inspection, conducted on November 3, 1989 by
Jim Siemers, Dean Peckham and John Flanagan, revealed
that the accessory building in question had been moved onto
the lot without permits or inspections, and has been used
as a living unit. The building contains a living room,
bedroom, bathroom and kitchen/dining area.
Mr. Valenzuela declared that he was issued a permit to
move the building onto the site. Investigation of the
files and records concerning the address in question
reveals that a permit was issued for a concrete foundation
on May 12, 1987. No inspection of the foundation was made
by any building inspector during the construction phase of
the foundation. Mr. Flanagan was called out to inspect
it, however the foundation was completed without initial
required inspections. The foundation appears to have been
constructed with hand mixed concrete, and no knowledge of
placement time or possibility of cold joints. At the time
of the inspection, there was no building on the foundation.
Moving of the building onto the foundation was done without
permits or inspections in violation of Lodi Municipal Code
§15304.020, Moving Permits.
Speaking on behalf of the appeal were:
5
Continued January 3, 1990
191
1. Jesse Ruiz Valenzuela, 4521
Rutherford, El Paso, Texas
2. Maria Arambula, 11318 Hermes Street,
Nowalk, CA
There being no other persons wishing to speak on the
matter, the public portion of the hearing was closed.
A lengthy discussion followed with questions b9 ing directed
to staff and to Ms. Arambula and Mr. Valenzuela.
On motion of Council Member Reid, Hinchman second, the City
Council ordered the abatement of the subject unsafe
structure by repair to bring it up to code and set a
deadline of one year from this date for the completion of
the necessary work.
PLANNING COMMISSION The Planning Commission has not met since the last report
CC -35 received by the City Council.
COMMUNICATIONS
(CITY CLERK)
ABC LICENSE
APPLICATIONS
CC -7(f) City Clerk Reimche presented the following applications
which had been received for Alcoholic Beverage Licenses:
a) Ma Luz/Salvador R. Gomez, Productos
Mexicanos, 2 North Cherokee Lane, Lodi,
Off Sale Beer and Wine License, Original
License.
b) Konstadinos and Loula Taskopoulos,
Joe's Steak House, 1110 West Kettleman Lane,
Unit 1, Lodi, On Sale General Eating Place,
Person to Person Transfer, Premises Transfer.
APPOINTMENT TO LODI
SENIOR CITIZENS COMMISSION
CC -2(i) On motion of Mayor Pro Tempore Hinchman, Olson second, the
City Council concurred with the Mayor's appointment of
Lillian L. Goldsmith to the Lodi Senior Citizens
Commission, which term expires December 31, 1993.
RETENTION OF NATURAL
STATUS OF THE UNDEVELOPED
AREA OF THE MOKELUMNE RIVER
BETWEEN WOODBRIDGE AND HIGHWAY
99 URGED
CC -27(a) Following receipt of letters from Dr. and Mrs. D. W. Terry,
Jr. and the Oat; Grove Docent Council urging the retaining
6
192 Continued January 3, 1990
of the natural status of the undeveloped area of the
Mokelumne River between Woodbridge and Highway 99, the City
Clerk was directed to advise the authors of the letters
that this concern will be addressed when the Open Space
Element of the Lodi General Plan is reviewed.
NINE AND ROSES COUNTRY
INN REQUESTS ANNEXATION
OF SECOND PARCEL
CC -8(a) City Clerk Reimche presented the following letter which had
been received from Del G. Smith of the Wine and Roses
Counrty Inn, 2505 West Turner Road:
RECESS
I am writing this letter on behalf of Wine and Roses
Country Inn, requesting that the other half of the original
5 -acre Towne Estate (or 2.66+ acres) be annexed into the
City of Lodi with C-1 zoning.
Sir, years ago half of the original historic Towne Estate
was split to become Wine and Roses Country Inn. We feel
the whole 5 -acre estate needs to become part of the City of
Lodi to insure the preservation of Lodi's heritage for
future generations.
We have a vision for the corner that we would like to
proceed with. Until annexed into the City it is difficult
for us to begin our planning.
I have met with Jim Schroeder, and his office is in favor
of our requested 2.66 C-1 zoning annexation. We are aware
of the status of the City sewer plant and hope to be
formalizing plans in this interim period. Jim also noted
that an EIR report will not be necessary at this time.
I would appreciate if you would let me know what further
action I will have to take to apply for this annexation
request.
Del G. Smith
The City Clerk was directed to advise Mr. Smith that the
City Council will be discussing the City's Annexation
Policy at its January 9, 1990 Informal Informational
Meeting.
Payor Snider declared a five minute recess and the City
Council reconvened at approximately 8:45 p.m.
7
Continued January 3, 1990 193,
REGULAR CALENDAR
BIDS REJECTED FOR
CONTRACT FOR WHITE
SLOUGH WATER. POLLUTION
CONTROL FACILITY EXPANSION
PROJECT, 12751 NORTH
THORNTON ROAD
CC -12(b) Following a brief introduction of the subject by City
Manager Peterson, City Attorney McNatt advised the City
Council that bids for the White Slough Water Pollution
Control Facility Expansion Project were previously opened
on November 1, 1989. At that time, the City received six
bids ranging from approximately $12M to $16M. The
engineers' estimate was $8.8M and since the City did not
have sufficient funds to award the project as bid, the City
Council rejected all bids on November 21, 1989. The
Council also approved a revised set of plans and
specifications which removed certain items from the bid
document. The new bid document also provided for deductive
alternate bids on certain items.
On December 15, 1989 the City received the six bids shown
on the attached sheet (Exhibit A). These bids include a
base bid plus the following six deductive alternates:
A. Existing digester cover replacement
B. Storage pond improvements
C. Irrigation system improvements
D. Irrigation pump adjustable frequency
controllers
E. Painting existing piping and equipment
F. Adding 60 days to the contract
It was the original intent of staff to recommend that Alder
Engineering be awarded the bid and that the amount of the
award be the base bid minus Deductive Alternate A, existing
digester cover replacement, and Deductive Alternate D,
irrigation pump adjustable frequency controllers.
At the Council meeting of December 20, 1989, the award of
the contract was on the agenda. However, on the same day,
at approximately 4:00 p.m. a protest was received from F&H
Construction Company (the second low bidder) alleging that
Alder's bid was irregular. The matter was continued to
January 3, 1990 so staff could look further into the matter
of the protest. Letters from both Alder and F&H have been
received as well as F&H's attorney. After extensive
research, it is now evident that the protest by F&h'
Construction raises valid concerns.
8
194 Continued January 3, 1990
BID REQUIREMENTS
The Instructions To Bidders which all bidders received
contain several portions which refer to the regularity and
acceptability of bids, such as:
The owner reserves the right to award the
contract by phases, to reject all bids, to
waive informalities, and to reject
nonconforming, nonresponsive or
conditional bids. (pp. 1-2)
On page 6-3, it states that "All blank
spaces in the bid form shall be filled.
Bids received without all such items
completed will be considered
nonresponsive."
At paragraph 10 on page B-4, it is stated
that "Owner reserves the right to reject all
bids, to award the contract by sections, to
waive informalities, and to reject
nonconforming, nonresponsive, or
conditional bids."
In the Questionnaire portion of the bid
packet, page Q-1, it states "Failure to
furnish all information requested in the
questionnaire may be a cause for rejection
of the bid."
ALDER ENGINEERING'S BID
On page BF -3 of its bid, Alder failed to identify
separately the amounts included in its base bid for the
lagoon dredge, industrial pump controls and membrane
diffused aeration equipment, leaving these lines blank, in
apparent contradiction to bidding instructions which state
that all lines left blank will result in the bid being
deemed nonresponsive.
On page LS -2 of the list of subcontractors, Alder
identifies a subcontractor only as "Environmental" which
has been challenged by F&H Construction as inadequately
identifying a subcontractor. Additionally, no addresses
for subcontractors were furnished.
The Questionnaire (pages Q-1 and 2) requires the name of
manufacturers of mechanical equipment in 26 categories.
Alder originally identified only four of the 26 suppliers,
delivering the balance of the names three days after bids
were opened. F&H Construction feels this is an
irregularity requiring that Alder's bid be rejected.
Continued January 3, 1990 1951"
ANALYSIS
Public Contracts Code Sections 20161(c) and 20162 require
competitive bids on public projects such as the White
Slough expansion. This same chapter provides other
procedural guidelines for bids on similar projects. To
facilitate these requirements, bid instructions discussed
above were drafted by the City and its consultant Black and
Veatch, and were included in the bid information packet.
These constitute the rules under which the bids were to be
received and the contract awarded. The language of these
instructions, cited above, states that where information
which bidders "shall" furnish is omitted from the bid
forms, the bid "will" be deemed nonresponsive. On the
other hand, the --questionnaire states that if all
information requested on the Questionnaire is not provided,
the bid "ma It be rejected. The words "will" or "shall"
are genera mandatory, while "may" implies discretion (58
Cal.Jur. 3d, §147).
A contract made in violation of statues on competitive
bidding is illegal and void (Reams vs Cooley, 171
C. 150;53 Cal Jur. 3d, Public Wor s and' Contracts,
§27).
§27). The question here is one of interpretation, i.e.,
whether Alder's omission in its bid amounted to a simple
"informality" (which the Council can waive under the bid
instructions) or was an "irregularity", requiring rejection
of the bid as unresponsive.
The California Attorney General has previously said that if
an error or omission in a bid is "inconsequential" a bid
award is proper, but if it is a "substantial deviation" the
bid is invalid (47 Ops.A.G. 129). One of the basis for
the determination is whether the deviation "...gives a
bidder an advantage or benefit not allowed other
bidders...." (Id, at 131). As stated in the letter from
F&H's attorney, they feel it did allow Alder an
advantage.
Helping further define these terms is the case of Konica
Business Machines vs Regents of the University of
California (198U-253 C.R. 591, which says a deviation is
"substantial" unless it is so inconsequential that it could
not affect the bid amount (Konica, Supra, at 594).
For example, failure to sign a bid in one place was deemed
a minor defect (or "informality") not so great as to
invalidate a bid (Menefee vs County of Fresno
(1985) 210 C.R. 99).
F&H Construction says that by not including a list of
suppliers of mechanical equipment until after Alder was
deemed the low bidder, gave Alder the opportunity to "bid
shop" its suppliers. "Bid shopping" has been defined by
California courts as "the use of a low bid already received
by the general contractor to pressure other subcontractors
(or suppliers) into submitting even lower bids (Sherman
10•
196 Continued Jainuary 3, 1990
Com an vs Thomason, Inc. (1987) 236 C. R. 577, at
582). This practice is disfavored in California (Pub.
Contracts Code, 64101).
While there is no basis to believe Alder Has engaged in bid
shopping, F&H points out that Alder's failure to include
the names of mechanical suppliE!— in its bid could present
an opportunity to do so. "Seca, of potential for abuse
arising from deviation from strict adherence to the
standards which promote public benefit, the letting of
public contracts universally receives close judicial
scrutiny and contracts awarded without compliance %-rith
bidding requirements will be set aside. This preventive
approach is applied even where it is certain there was in
fact no corruption.. and the deviations would save the
entity move emphasis added)..." (Konica, Supra at
595).
SUMMARY
This situation admittedly presents a close call, and my
opinion is a conservative one which I feel best protects
the City. Credible arguments have been made by both
bidders, but no matter which course of action the Council
may choose, it is possible the matter may be decided in
court. There are numerous cases in which unsuccessful
bidders have sought to recover costs of preparing the bids,
and in some cases also asked for lost profits. The more
legally defensible position at this point appears to me to
be for the Council to find the omissions in Alder's bid to
be substantial, making the bid irregular, nonresponsive
and thus unacceptable. While we would obviously prefer to
accept the low bid, I believe that action might be
challenged successfully. I will be in contact with the
legal department of Black & Veatch, the City's
consultants, and will keep the Council advised of their
recommendations.
If the Council accepts F&H's bid, the total bid award
would be:
Base Bid $10,397,000
Deductive Alternate A [181,0001
Deductive Alternate D [45,0001
Bid Award Amount $10,171,000
The Finance Department has determined that over the life of
the construction project (19 months) we will have
approximately $11,250,000 available. The expenditures to
complete the project are estimated as follows:
11
Continued January 3, 1990 L 97.
Construction contract $10,171,000
Contract administration, inspection and 0&M Manual 581,000
Discharge permit and dilution study 23,000
Contingencies 300,000
Estimated Cost Total S11,075,006
Estimated Funds Available $11,250,000
The City Attorney also discussed the possibility that the
City Council may want to rejected all bids and
readvertise for bids.
Speaking on behalf of the Alder Construction Company bid
were:
a) Craig Rasmussen, Attorney -at -Law
representing the Alder Construction Company
b) Donald Fryer, Project Manager, Alder
Construction Company
Speaking on behalf of the F & H Construction Company bid
were:
a) Richard E. Macey, Attorney -at -Law
representing the F & H Construction
Company
b) Clark Fregien, Secretary -Treasurer, F & H
Construction Company
Following discussion with questions being directed to
Staff, Mayor Pro Tempore Hinchman moved to reject the
Alder Construction Company bid and to award the bid to F &
H Construction Company. The motion was seconded by Council
Member Pinkerton, but failed to pass by the following vote:
Ayes: Council Members - Hinchman and Pinkerton
Noes: Council Members - Olson, Reid, and Snider
Absent: Council Members - None
Following additional discussion, on motion of Mayor Snider,
Reid second, the City Council based on the findings that
the low bidder for the contract for the White Slough Water
Pollution Control Facility Expansion Project, 12751 North
Thornton Road, Alder Construction Company, had omissions in
their bid which made it nonresponsive, and that the
second lowest bid of F & H Construction Company was
approximately $500,000 higher than the low bid, rejected
all bids and authorized the readvertisement for bids.
12
198 Continued January 3, 1991'
The bids are to be received January 16, 1990 and the
contract will be awarded on January 17, 1990.
The motion carried by the following vote:
Ayes: Council Members - Olson, Pinkerton, Reid, and
Snider
Noes: Council Members - Hinchman
Absent: Council Members - gone
ADJOURNMENT There being no further business to come before the City
Council, the meeting was adjourned at approximately 9:55
p.m.
ATTEST:`
Alice M. Reimche
City Clerk
13