HomeMy WebLinkAbout2025-01-14; City Council; 05; Rejecting Bid Protest, Accepting Bids Received, Awarding Construction Contract and Approving Construction Management and Inspection Services Agreement for the Monroe StreCA Review CKM
Meeting Date: Jan. 14, 2025
To: Mayor and City Council
From: Geoff Patnoe, City Manager
Staff Contact: Steven Stewart, Municipal Projects Manager
steven.stewart@carlsbadca.gov, 442-339-2938
Subject: Rejecting Bid Protest, Accepting Bids Received, Awarding Construction
Contract and Approving Construction Management and Inspection
Services Agreement for the Monroe Street Pool Renovation and
Replacement Project
District: 1
Recommended Actions
1.Adopt a resolution rejecting a bid protest submitted by Construct 1 One Corp., accepting the
bids received and awarding a construction contract to Edwards Construction Group, Inc. in an
amount not to exceed $14,126,653 for the Monroe Street Pool Renovation and Replacement
Project, Capital Improvement Program Project No. 4724.
2.Adopt a resolution approving a professional services agreement with Cumming Management
Group, Inc. for construction management and inspection services in an amount not to exceed
$563,800 for the Monroe Street Pool Renovation and Replacement Project, Capital
Improvement Program Project No. 4724.
Executive Summary
The Monroe Street Pool, located at 3401 Monroe St. next to Carlsbad High School, was built in
1982 and needs significant repairs and upgrades to remain operational and compliant with
health and safety and building codes.
The City Council approved the plans, specifications and contract documents for the Monroe
Street Pool Renovation and Replacement Project on Sept. 10, 2024, and adopted Resolution No.
2024-214, authorizing the City Clerk to advertise the documents for construction bids.
Staff advertised for bids and determined that Edwards Construction Group, Inc. submitted the
lowest responsive bid in an amount not to exceed $14,126,653.00 and is a responsible bidder.
Before advertising for bids for the project, staff had requested proposals for constructability and
biddability services1 for the bid and construction management and inspection services to
1 Constructability services involve reviewing a project design early on to identify potential construction challenges
and optimize the design for efficient building, while biddability services analyze the project documents to ensure
they are clear, accurate, and easily understood by potential bidders, minimizing confusion and risk during the
bidding process. Both services are intended to address potential issues before construction begins.
Jan. 14, 2025 Item #5 Page 1 of 39
oversee the construction work once a construction contract was awarded. Staff selected
Cumming Management Group, Inc. to provide these services, with the fee for the construction
management and inspection services in an amount not to exceed $563,800.00.
Formally bid contracts with a value of more than $200,000 require the City Council’s approval
under Carlsbad Municipal Code Sections 3.28.080(C) and 3.28.080(I)(6). The construction
management and inspection services agreement also requires the approval of the City Council
under Carlsbad Municipal Code Section 3.28.060(D)(5) because the value of the agreement is
greater than $100,000.
The contract award amount is significantly less than what was estimated and appropriated, so
the City Manager or designee will return the remaining excess appropriations, approximately
$1.4 million, to the respective funding sources, as detailed below.
Explanation & Analysis
Overview
The Monroe Street Pool Renovation and Replacement Project includes the following features:
• Larger and reconfigured pool with 50% more lanes
• New 8-foot wall with metal gates along Monroe Street to reduce sound for the
surrounding neighborhood
• Larger pool deck with lockers and outdoor showers
• Renovated locker rooms and family restrooms
• More bleachers and shade structures
• Larger parking lot
• Addition of an outdoor entrance for competitions (instead of going through the lobby to
get to the pool)
• Reconfigured lobby, first aid and administration offices and a room that can be used for
meetings and small gatherings like birthday parties
• All new pool tile, plaster, piping, pool deck, drainage, pumps and filters
• New building for pool equipment with a separate entrance for service vehicles so they
don’t take up space in the parking lot
• Replacement of existing solar water heating system and installation of rooftop solar
panels to generate electricity
Bidding
The city received seven bids for the construction work on Dec. 12, 2024. Staff evaluated the bids
and found the bid in an amount not to exceed $14,126,653.00 from Edwards Construction
Group, Inc. to be the lowest responsive bid. Staff also determined that Edwards Construction
Group is a responsible bidder since it has completed similar projects.
The city uses estimates of a project’s probable construction cost given by an experienced and
qualified professional generally familiar with the construction industry to obtain an estimate as
close to the actual costs as possible. The engineer’s estimate for the project was $16,668,000.
Six of the seven bids received were below this estimate. Those bids ranged from $14.1 million to
$17.8 million. Accordingly, no additional appropriation is needed at this time.
Jan. 14, 2025 Item #5 Page 2 of 39
Bid protest
The city received a bid protest from the third lowest bidder, Construct 1 One Corp., on Dec. 16,
2024. (Exhibit 3) The protest asserted that the bid submitted by Edwards Construction Group
was non-responsive on the basis that a subcontractor was not listed for the structural steel work
for the project, and if Edwards Construction Group plans to perform the structural steel work
itself, its A or B California contractor’s license is not sufficient.
The city received a rebuttal to the bid protest from Edwards Construction Group, Inc. On
Dec. 23, 2024. (Exhibit 4)
The City Attorney’s Office reviewed the bid protest and rebuttal, and determined that the
protest lacks legal merit because Edwards Construction Group may either perform the structural
steel work itself with a B license classification or subcontract for the work as long as the amount
of the work is less than one-half of 1% of its total bid amount. (See California Business and
Professions Code Section 7057(b) and California Public Contract Code Section 4104(a).) Staff
therefore recommend the City Council reject the bid protest.
Construction management and inspection services
In March 2024, staff requested proposals to solicit construction management and inspection
services in March 2024 and evaluated the ten proposals received on April 8, 2024. The responses
were evaluated in accordance with Carlsbad Municipal Code Section 3.28.060(A) and the criteria
in the request for proposals, and each committee member was required to sign a confidentiality
agreement to ensure fairness in the selection process.
The proposals for the construction management and inspection services were reviewed to
determine overall consultant company qualifications and experience, consultant team
qualifications and experience, a demonstrated ability to provide similar services on public and
private construction projects, local presence and knowledge of city, state and federal
procedures, in keeping with the evaluation criteria in the request for proposals.
Staff determined that the most qualified proposal was submitted by Cumming Management
Group, Inc. and negotiated a fee proposal in an amount not to exceed $563,800.00 for oversight
of the construction work.
Jan. 14, 2025 Item #5 Page 3 of 39
Fiscal Analysis
The Monroe Street Pool Renovation and Replacement Project is currently funded from the
Infrastructure Replacement fund, the General Capital Construction fund, and park-in-lieu fees.2
The appropriations and total expenditures to date and budgeted allocations for construction are
shown below:
Monroe Street Pool Renovation and Replacement Project
Capital Improvement Program Project No. 4724
Total appropriation to date $22,969,124.00
Total expenditures and encumbrances to date -$2,356,073.00
Total available balance $20,613,051.00
Construction contract – Edwards Construction Group -$14,126,653.00
Construction contingency -$1,695,198.00
Construction management and inspection – Cumming
Management Group -$563,800.00
Public art and outreach, special inspections and testing,
furnishings and staff oversight time (estimated) -$2,825,326.00
Total remaining project costs -$19,210,977.00
Remaining balance $1,402,074.00
Carlsbad Municipal Code Sections 3.28.040(C)(5) and 3.28.090(B) authorize the City Manager or
designee to approve change orders in an amount equal to the contingency set at the time of
project award, which is $1,695,198.00 for this project.
The City Manager or designee will proportionately return the remaining excess appropriations to
the respective funding sources as shown in the table below:
Remaining balance $1,402,074.00
General Capital Construction Fund (53%) -$743,099.00
Infrastructure Replacement Fund (34%) -$476,705.00
Park-in-lieu fees – Northwest Quadrant (13%) -$182,270.00
Next Steps
Upon City Council authorization of the construction contract and construction management and
inspection services agreement, staff will complete the contract documents with Edwards
Construction Group, Inc. for the construction project and with Cumming Management Group,
Inc., for the construction management and inspection services agreement for the project.
Staff anticipate starting construction in late March 2025 and completing the project in summer
2026.
2 Park in-lieu fees are fees paid by residential developers to fund the construction of new parks or the improvement
of existing ones.
Jan. 14, 2025 Item #5 Page 4 of 39
Environmental Evaluation
The City Council certified the environmental impact report (EIR-380) for the Monroe Street Pool,
at the time identified as the “community swimming pool,” on July 19, 1977. This project is within
the scope of the prior environmental document and no further environmental documentation is
required in accordance with California Environmental Quality Act Guidelines Section 15162.
The conditional use permit (CUP-158) and the certified environmental impact report (EIR-380)
for the Community Swim Complex, the former name of the Monroe Street Pool facility, allowed
for larger pool(s), building(s) and parking lots than what was originally constructed. All applicable
mitigation measures contained in the prior environmental document have either been satisfied
previously and/or were made conditions of approval of the project’s approved conditional use
permit. There have not been substantial changes to the circumstances under which the project
was undertaken and there have been no new significant environmental effects that would
modify or change any mitigation measures.
The pool operates in conjunction with the existing school facility, and the proposed changes do
not result in new significant impacts or a substantial increase in the severity of previously
identified impacts, because the site and neighborhood context have not changed. Projects
constructed by the school district since the pool was constructed have not impacted pool
operations. The changes to the pool will have no impact to the adjacent school facilities. The
mitigation measures to reduce impacts remain in place and are adequate to maintain the same
level of significance studied in the previous environmental impact report, therefore none of the
situations in CEQA Guidelines Section 15162(a) exist and no additional environmental review is
necessary. The certified environmental impact report and mitigation measures are on file for
review at the Planning Division.
The City Planner determined on Feb. 7, 2023, that the design concept was consistent with the
approved conditional use permit for the Community Swim Complex.
Exhibits
1.City Council resolution for construction contract
2.City Council resolution for construction management and inspection services agreement
3.Bid protest
4.Rebuttal to bid protest
Jan. 14, 2025 Item #5 Page 5 of 39
RESOLUTION NO. 2025-003
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, REJECTING A BID PROTEST SUBMITTED BY CONSTRUCT 1 ONE
CORP., ACCEPTING THE BIDS RECEIVED AND AWARDING A CONSTRUCTION
CONTRACT TO EDWARDS CONSTRUCTION GROUP, INC. IN AN AMOUNT
NOT TO EXCEED $14,126,653.00 FOR THE MONROE STREET POOL
RENOVATION AND REPLACEMENT PROJECT, CAPITAL IMPROVEMENT
PROGRAM PROJECT NO. 4724
WHEREAS, the City Council of the City of Carlsbad, California has determined it necessary,
desirable and in the public interest to construct the Monroe Street Pool Renovation and Replacement
Project, Capital Improvement Program, or CIP, Project No. 4724, or Project; and
WHEREAS, the city contracted with LPA, Inc., a California corporation, an architectural and
engineering design firm to develop plans, specifications, and contract documents necessary to
complete the Project; and
WHEREAS, on Sept. 10, 2024, the City Council adopted Resolution No. 2024-214, approving the
plans, specifications and contract documents for the Project prepared by LPA, Inc., and authorizing the
City Clerk to advertise the construction documents for bidding; and
WHEREAS, the Carlsbad Municipal Code, or CMC, Sections 3.28.080(() and 3.28.080(1)(6)
require the City Council to award all formally bid contracts when the value exceeds $200,000, and
therefore, the Project is subject to this requirement; and
WHEREAS, on Dec. 12, 2024, staff received seven bids for construction of the Project; and
WHEREAS, staff have reviewed the bids and have found Edwards Construction Group, Inc. to be
a responsible bidder with a responsive bid in an amount not to exceed $14,126,653.00; and
WHEREAS, on Dec. 16, 2024, the third lowest bidder, Construct 1 One Corp., submitted a bid
protest alleging the bid submitted by Edwards Construction Group, Inc., was non-responsive because
a subcontractor was not listed for the structural steel work for the Project, and in the alternative, if
Edwards Construction Group, Inc. plans to self-perform the structural steel work itself, an 'A' or 'B'
California contractor's license classification is not sufficient ("Bid Protest"); and
WHEREAS, staff reviewed Edwards Construction Group, lnc.'s bid in light of the Bid Protest,
including its subcontractor's licensing and experience, for responsiveness; and
WHEREAS, Business and Professions Code Section 7059(b) provides that in public works
contracts the awarding authority determines the license classification necessary to bid and perform
the work; and
WHEREAS, staff reviewed the Bid Protest and determined that the Bid Protest lacks legal merit
because Edwards Construction Group, Inc. may either self-perform the structural steel work with a 'B'
California license, or in the alternative, may subcontract for the work, so long as the work is an amount
less than one-half of 1% of Edwards Construction Group, lnc.'s total bid amount, consistent with
Business and Professions Code Section 7057 and Public Contract Code Section 4104(a), respectively;
and
WHEREAS, staff recommend that the Bid Protest be rejected for lack of legal merit and the
contract be awarded to Edwards Construction Group, Inc.; and
WHEREAS, CMC Sections 3.28.040(()(5) and 3.28.090(B) authorize the City Manager or
designee to approve change orders in an amount equal to the contingency set at the time of Project
award, which is $1,695,198.00; and
WHEREAS, on July 19, 1977, the City Council certified the environmental impact report (EIR-
380) for the Monroe Street Pool, at the time identified as the "community swimming pool." The project
is within the scope of the prior environmental document and no further environmental documentation
is required per California Environmental Quality Act Guidelines Section 15162; and
WHEREAS, the conditional use permit (CUP-158) and the certified environmental impact report
(EIR-380) for the Community Swim Complex allowed for larger pool(s), building(s) and parking lots than
what was originally constructed. All applicable mitigation measures contained in the prior
environmental document have either been satisfied previously and/or were made conditions of
approval of the project's approved conditional use permit. There have not been substantial changes to
the circumstances under which the project is undertaken and there have been no new significant
environmental effects that would modify or change any mitigation measures; and
WHEREAS, the pool operates in conjunction with the existing school facility, and the proposed
changes do not result in new significant impacts or a substantial increase in the severity of previously
identified impacts because the site and neighborhood context have not changed. Projects constructed
by the school district since the pool was constructed have not impacted pool operations. The changes
to the pool will have no impact to the adjacent school facilities. The mitigation measures to reduce
impacts remain in place and are adequate to maintain the same level of significance studied in the
previous environmental impact report, therefore none of the situations in CEQA Guidelines Section
15162(a) exist and no additional environmental review is necessary. The certified environmental
impact report and mitigation measures are on file for review at the Planning Division; and
WHEREAS, the City Planner determined on Feb. 7, 2023, that the design concept was consistent
with the approved conditional use permit for the Community Swim Complex (the former name of the
Monroe Street Pool facility).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the Bid Protest is rejected for lacking legal merit.
3. That the bid submitted by Edwards Construction Group, Inc. in an amount not to exceed
$14,126,653.00 for construction of the Monroe Street Pool Renovation and
Replacement Project, CIP Project No. 4724, is accepted, and the Mayor is hereby
authorized to execute a contract with Edwards Construction Group, Inc., subject to the
contract's review and approval as to form by the City Attorney's Office.
4. That the City Manager or designee is hereby authorized to approve construction change
orders for the Monroe Street Pool Renovation and Replacement Project, CIP Project No.
4724, up to an amount not to exceed $1,695,198.00.
5. That the City Manager or designee is authorized to sign all other documents necessary
for regulatory compliance, to extend funding opportunities, or to otherwise implement
and finalize the project, subject to their review and approval as to form by the City
Attorney's Office.
6. That the award of this contract is contingent upon Edwards Construction Group, Inc.
executing the required contract and submitting the required bonds and insurance
policies, as described in the contract, within 20 calendar days after adoption of this
Resolution. The City Manager may grant reasonable extensions of time to execute the
contract and assemble the required bonds and insurance policies.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 14th day of January 2025, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
BLACKBURN, BHAT-PATEL, ACOSTA, BURKHOLDER, SHIN .
NONE.
NONE.
NONE.
KEITH BLACKBURN, Mayor
\JM'.Y?o N> Rzzi~,
~SHERRY FREISINGER, City Clerk u-(SEAL)
RESOLUTION NO. 2025-004
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH
CUMMING MANAGEMENT GROUP, INC. FOR CONSTRUCTION
MANAGEMENT AND INSPECTION SERVICES IN AN AMOUNT NOTTO EXCEED
$563,800.00 FOR THE MONROE STREET POOL RENOVATION AND
REPLACEMENT PROJECT, CAPITAL IMPROVEMENT PROGRAM PROJECT NO.
4724
WHEREAS, the City Council of the City of Carlsbad, California has determined it necessary,
desirable and in the public interest to construct the Monroe Street Pool Renovation and Replacement
Project, Capital Improvement Program, or CIP, Project No. 4724, or Project; and
WHEREAS, on Sept. 10, 2024, the City Council adopted Resolution No. 2024-214, approving
the plans, specifications and contract documents for the Project, and authorizing the City Clerk to
advertise the construction documents for bidding; and
WHEREAS, staff have bid the project and identified a contractor as providing a responsive and
responsible bid for the Project; and
WHEREAS, staff require the assistance of a construction management and inspection services
firm to provide oversight of the construction work; and
WHEREAS, in March 2024, the city issued a Request for Proposals, or RFP, for solicitation of
construction management and inspection services for the Project; and
WHEREAS, staff completed a qualifications-based evaluation of the 10 proposals received; and
WHEREAS, staff have identified the Cumming Management Group, Inc., or Cumming Group, as
the most qualified consultant for the Project; and
WHEREAS, the City Council has determined it is necessary and in the public interest to enter
into an agreement with the Cumming Group to provide construction management and inspection
services for the Project; and
WHEREAS, staff and the Cumming Group have negotiated the scope of work and the associated
fee in an amount not to exceed $563,800.00 to provide construction management and inspection
services for the Project; and
WHEREAS, on July 19, 1977, the City Council certified the environmental impact report
(EIR-380) for the Monroe Street Pool, at the time identified as the "community swimming pool." The
project is within the scope of the prior environmental document and no further environmental
documentation is required per California Environmental Quality Act Guidelines Section 15162; and
WHEREAS, the conditional use permit (CUP-158) and the certified environmental impact report
(EIR-380) for the Community Swim Complex allowed for larger pool(s), building(s) and parking lots than
what was originally constructed. All applicable mitigation measures contained in the prior
environmental document have either been satisfied previously and/or were made conditions of
approval of the project's approved conditional use permit. There have not been substantial changes to
the circumstances under which the project is undertaken and there have been no new significant
environmental effects that would modify or change any mitigation measures; and
WHEREAS, the pool operates in conjunction with the existing school facility, and the proposed
changes do not result in new significant impacts or a substantial increase in the severity of previously
identified impacts because the site and neighborhood context have not changed. Projects constructed
by the school district since the pool was constructed have not impacted pool operations. The changes
to the pool will have no impact to the adjacent school facilities. The mitigation measures to reduce
impacts remain in place and are adequate to maintain the same level of significance studied in the
previous environmental impact report, therefore none of the situations in CEQA Guidelines Section
15162(a) exist and no additional environmental review is necessary. The certified environmental
impact report and mitigation measures are on file for review at the Planning Division; and
WHEREAS, the City Planner determined on Feb. 7, 2023, that the design concept was consistent
with the approved conditional use permit for the Community Swim Complex (the former name of the
Monroe Street Pool facility).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the professional services agreement with Cumming Management Group, Inc. for
construction management and inspection services for the Monroe Street Pool
Renovation and Replacement Project, CIP Project No. 4724 in an amount not to exceed
$563,800.00 (Attachment A) is approved and the Mayor is authorized to execute the
agreement, subject to its review and approval as to form by the City Attorney's Office.
3. That the City Manager or designee is authorized to approve amendments to the
agreement and to extend the time for completion of the agreement for up to one
additional year, as needed.
4. That the City Manager or designee is authorized to sign all other documents necessary
for regulatory compliance, to extend funding opportunities, or to otherwise implement
and finalize the project, all of which are subject to review and approval as to form by
the City Attorney's office.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 14th day of January 2025, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
BLACKBURN, BHAT-PATEL, ACOSTA, BURKHOLDER, SHIN .
NONE.
NONE.
NONE.
KEITH BLACKBURN, Mayor
Docusign Envelope ID: E9B60834-741 A-447C-AF39-6D51 E46B081 C
PSA25-3654FAC
AGREEMENT FOR MONROE STREET POOL REPLACEMENT FOR CONSTRUCTION
MANAGEMENT AND INSPECTION SERVICES
CUMMING MANAGEMENT GROUP, INC.
THIS AGREEMENT is made and entered into as of the / L/tJ1 day of
2025, by and between the City of Carlsbad, California, a municipal
umming Management Group, Inc., a California corporation ("Contractor").
RECITALS
A. City requires the professional services of a consultant that is experienced in construction
consulting.
B. Contractor has the necessary experience in providing professional services and advice
related to construction consulting.
C. Contractor has submitted a proposal to City under RFP24-2355FAC and has affirmed its
willingness and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein,
City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that
are defined in attached Exhibit "A," which is incorporated by this reference in accordance with this
Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan
Southern California area, and will use reasonable diligence and best judgment while exercising its
professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of two (2) years from the date first above written.
The City Manager may amend the Agreement to extend it for two (2) additional one (1) year periods or
parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs,
and appropriation of funds by the City Council. The parties will prepare a written amendment indicating
the effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term shall not exceed
five hundred eighty-three thousand eight hundred dollars ($583,800). No other compensation for the
Services will be allowed except for items covered by subsequent amendments to this Agreement. The City
reserves the right to withhold a ten percent (10%} retention until City has accepted the work and/or
Services specified in Exhibit "A."
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A."
City Attorney Approved Version 5/22/2024
Page 1
PSA25-3654FAC
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6. PUBLIC WORKS
6.1 Prevailing Wage Rates. Any construction, alteration, demolition, repair, and maintenance work,
including work performed during design and preconstruction such as inspection and land surveying work,
cumulatively exceeding $1,000 and performed under this Agreement constitute “public works” under
California Labor Code section 1720 et seq. and are subject to state prevailing wage laws. The general
prevailing rate of wages, for each craft or type of worker needed to execute the contract, shall be those
as determined by the Director of Industrial Relations pursuant to the Section 1770, 1773 and 1773.1 of
the California Labor Code. Pursuant to Section 1773.2 of the California Labor code, a current copy of
applicable wage rates is on file in the office of the City Engineer. Contractor shall not pay less than the
said specified prevailing rates of wages to all such workers employed by him or her in the execution of the
Agreement. Contractor and any subcontractors shall comply with Section 1776 of the California Labor
Code, which generally requires keeping accurate payroll records, verifying and certifying payroll records,
and making them available for inspection. Contractor shall require any subcontractors to comply with
Section 1776.
6.2 DIR Registration. California Labor Code section 1725.5 requires the Contractor and any
subcontractor or subconsultant performing any public work under this Agreement to be currently
registered with the California Department of Industrial Relations (DIR), as specified in Labor Code section
1725.5. Labor Code section 1771.1 provides that a contractor or subcontractor/subconsultant shall not be
qualified to engage in the performance of any contract for public work, unless currently registered and
qualified to perform public work pursuant to Labor Code section 1725.5. Prior to the performance of
public work by any subcontractor or subconsultant under this Agreement, Contractor must furnish City
with the subcontractor or subconsultant's current DIR registration number.
7.CONSTRUCTION MANAGEMENT SOFTWARE
Procore Project Management and Collaboration System. This project may utilize the Owner’s Procore
(www.procore.com) online project management and document control platform. The intent of utilizing
Procore is to reduce cost and schedule risk, improve quality and safety, and maintain a healthy team
dynamic by improving information flow, reducing non-productive activities, reducing rework and
decreasing turnaround times. The Contractor is required to create a free web-based Procore user
account(s) and utilize web-based training / tutorials (as needed) to become familiar with the system.
Unless the Engineer approves otherwise, the Contractor shall process all project documents through
Procore because this platform will be used to submit, track, distribute and collaborate on project. If
unfamiliar or not otherwise trained with Procore, Contractor and applicable team members shall
complete a free training certification course located at http://learn.procore.com/procore-certification-
subcontractor. The Contractor is responsible for attaining their own Procore support, as needed, either
through the online training or reaching out to the Procore support team. It will be the responsibility of the
Contractor to regularly check Procore and review updated documents as they are added. There will be no
cost to the Contractor for use of Procore.
It is recommended that the Contractor provide mobile access for Windows, iOS located at
https://apps.apple.com/us/app/procore-construction-management/id374930542 or Android devices
located at https://play.google.com/store/apps/details?id=com.procore.activities with the Procore App
installed to at least one on-site individual to provide real-time access to current posted drawings,
specifications, RFIs, submittals, schedules, change orders, project documents, as well as any deficient
observations or punch list items. Providing mobile access will improve communication, efficiency, and
productivity for all parties. The use of Procore for project management does not relieve the contractor of
any other requirements as may be specified in the contract documents.
Docusign Envelope ID: E9B60834-741A-447C-AF39-6D51E46B081C
Jan. 14, 2025 Item #5 Page 14 of 39
PSA25-3654FAC
City Attorney Approved Version 5/22/2024
Page 3
8. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit
of Contractor's independent calling, and not as an employee of City. Contractor will be under control of
City only as to the result to be accomplished, but will consult with City as necessary. The persons used by
Contractor to provide services under this Agreement will not be considered employees of City for any
purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete compensation
to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of
Contractor or its agents, employees or subcontractors. City will not be required to pay any workers'
compensation insurance or unemployment contributions on behalf of Contractor or its employees or
subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers' compensation
payment which City may be required to make on behalf of Contractor or any agent, employee, or
subcontractor of Contractor for work done under this Agreement. At the City’s election, City may deduct
the indemnification amount from any balance owing to Contractor.
9. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City. If
Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and
omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the
subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor.
Nothing contained in this Agreement will create any contractual relationship between any subcontractor
of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind
every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement
applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved
in writing by City.
10. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
11. INDEMNIFICATION
Contractor agrees to defend (with counsel approved by the City), indemnify, and hold harmless the City
and its officers, elected and appointed officials, employees and volunteers from and against all claims,
damages, losses and expenses including attorney’s fees arising out of the performance of the work
described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any
subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of
them may be liable.
If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s
performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then,
and only to the extent required by Civil Code Section 2782.8, which is fully incorporated herein,
Contractor’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to
the negligence, recklessness, or willful misconduct of the Contractor, and, upon Contractor obtaining a
final adjudication by a court of competent jurisdiction. Contractor’s liability for such claim, including the
cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or
on behalf of an injured employee under the City’s self-administered workers’ compensation is included as
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a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or
early termination of this Agreement.
12. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all amendments,
insurance against claims for injuries to persons or damage to property which may arise out of or in
connection with performance of the services by Contractor or Contractor’s agents, representatives,
employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and
authorized to do business in the State of California. The insurance carrier is required to have a current
Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of
Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”;
OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC)
latest quarterly listings report.
12.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits
indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations
under this Agreement. City, its officers, agents and employees make no representation that the limits of
the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect
Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will
obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense.
The full limits available to the named insured shall also be available and applicable to the City as an
additional insured.
12.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis,
including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general
aggregate limit applies, either the general aggregate limit shall apply separately to this project/location
or the general aggregate limit shall be twice the required occurrence limit.
12.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for
City). $2,000,000 combined single-limit per accident for bodily injury and property damage.
12.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if Contractor has no
employees and provides, to City's satisfaction, a declaration stating this.
12.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s profession
with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years
following the date of completion of the work.
12.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this
Agreement contain, or are endorsed to contain, the following provisions:
12.2.1 The City will be named as an additional insured on Commercial General Liability which
shall provide primary coverage to the City.
12.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be
written as claims-made coverage.
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12.2.3 If Contractor maintains higher limits than the minimums shown above, the City requires
and will be entitled to coverage for the higher limits maintained by Contractor. Any available insurance
proceeds in excess of the specified minimum limits of insurance and coverage will be available to the City.
12.2.4 This insurance will be in force during the life of the Agreement and any extensions of it
and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant
to the Notice provisions of this Agreement.
12.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement,
Contractor will furnish certificates of insurance and endorsements to City.
12.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages,
then City will have the option to declare Contractor in breach, or may purchase replacement insurance or
pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor
is responsible for any payments made by City to obtain or maintain insurance and City may collect these
payments from Contractor or deduct the amount paid from any sums due Contractor under this
Agreement.
12.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and
certified copies of any or all required insurance policies and endorsements.
13. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as
may be amended from time-to-time.
14. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during
normal business hours to examine, audit, and make transcripts or copies of records and any other
documents created pursuant to this Agreement. Contractor will allow inspection of all work, data,
documents, proceedings, and activities related to the Agreement for a period of four (4) years from the
date of final payment under this Agreement.
15. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this
Agreement is the property of City. In the event this Agreement is terminated, all work product produced
by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered
at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s
records.
16. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor
relinquishes all claims to the copyrights in favor of City.
17. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on behalf
of City and on behalf of Contractor under this Agreement are:
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For City For Contractor
Name Steven Stewart Name Anthony Sanchez
Title Municipal Projects Manager Title Executive VP / Project Manager
Department Public Works Address 350 South Grand Avenue, Suite 1900
City of Carlsbad Los Angeles, CA 90071
Address 1635 Faraday Ave. Phone No. 213-408-4518
Carlsbad, CA 92008 Email asanchez@cumming-group.com
Phone No. 442-339-2938
Each party will notify the other immediately of any changes of address that would require any notice or
delivery to be directed to another address.
18. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or
interests as required in the City of Carlsbad Conflict of Interest Code.
Yes ☒ No ☐
If yes, list the contact information below for all individuals required to file:
Name Email Phone Number
19. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which
in any manner affect those employed by Contractor, or in any way affect the performance of the Services
by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and
regulations and will be responsible for the compliance of Contractor's services with all applicable laws,
ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will
comply with those requirements, including, but not limited to, verifying the eligibility for employment of
all agents, employees, subcontractors and consultants whose services are required by this Agreement.
20. CALIFORNIA AIR RESOURCES BOARD (CARB) ADVANCED CLEAN FLEETS REGULATIONS
Contractor’s vehicles with a gross vehicle weight rating greater than 8,500 lbs. and light-duty package
delivery vehicles operated in California may be subject to the California Air Resources Board (CARB)
Advanced Clean Fleets regulations. Such vehicles may therefore be subject to requirements to reduce
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aaljajeh@cumming-group.com
Anthony L. Sanchez
A. Al Jajeh 646-369-9623
323-855-4710asanchez@corpusa.com
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emissions of air pollutants. For more information, please visit the CARB Advanced Clean Fleets webpage
at https://ww2.arb.ca.gov/our-work/programs/advanced-clean-fleets.
21. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
22. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will be used
to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties.
Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A
copy of such documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative receiving the letter
will reply to the letter along with a recommended method of resolution within ten (10) business days. If
the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will
be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended
by each party and may then opt to direct a solution to the problem. In such cases, the action of the City
Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the
parties from seeking remedies available to them at law.
23. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate
this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City
decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City
may terminate this Agreement upon written notice to Contractor. Upon notification of termination,
Contractor has five (5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based upon the work
product delivered to City and of the percentage of work that Contractor has performed which is usable
and of worth to City in having the Agreement completed. Based upon that finding City will determine the
final payment of the Agreement.
City may terminate this Agreement by tendering thirty (30) days written notice to Contractor. Contractor
may terminate this Agreement by tendering thirty (30) days written notice to City. In the event of
termination of this Agreement by either party and upon request of City, Contractor will assemble the work
product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for
work performed to the termination date; however, the total will not exceed the lump sum fee payable
under this Agreement. City will make the final determination as to the portions of tasks completed and
the compensation to be made.
24. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other than a
bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has
not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission,
percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award
or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this
Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or
otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent
fee.
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25. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be
asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of
litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to
City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor
acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this
Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public
entity. These provisions include false claims made with deliberate ignorance of the false information or in
reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the
False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor
acknowledges that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work
or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another
jurisdiction is grounds for City to terminate this Agreement.
26. JURISDICTION AND VENUE
This Agreement shall be interpreted in accordance with the laws of the State of California. Any action at
law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for
by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of
California, and the parties waive all provisions of law providing for a change of venue in these proceedings
to any other county.
27. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and
their respective successors. Neither this Agreement nor any part of it nor any monies due or to become
due under it may be assigned by Contractor without the prior consent of City, which shall not be
unreasonably withheld.
28. THIRD PARTY RIGHTS
Nothing in this Agreement should be construed to give any rights or benefits to any party other than the
City and Contractor.
29. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along with
the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the
Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be
amended, modified, waived or discharged except in a writing signed by both parties. This Agreement may
be executed in counterparts.
30. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor
each represent and warrant that they have the legal power, right and actual authority to bind Contractor
to the terms and conditions of this Agreement.
[signatures on following page]
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CONTRACTOR
CUMMING MANAGEMENT GROUP, INC., a
California corporation
By:
(sign here)
A. Al Jajeh, Chief Financial Officer
(print name/title)
By:
(sign here)
Anthony Sanchez, Executive Vice President
(print name/title)
PSA25-3654FAC
CITY OF CARLSBAD, a municipal corporation of
the State of California
By:
v Keith Blackburn, Mayor
ATTEST:
SHERRY FREISINGER, City Clerk
Deputy City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached. ~
corporation, Agreement must be signed by one corporate officer from each of the following two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under
corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CINDIE K. McMAHON, City Attorney
By: __ C.,_~-~--~-----
Assistant City Attorney
City Attorney Approved Version 5/22/2024
Page 9
PSA25-3654FAC
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Page 10
EXHIBIT A
SCOPE OF SERVICES AND FEE
Cumming Management Group, Inc., shall provide Construction Management Services for the Monroe
Street Pool Renovation project as outlined in the attached proposal dated Dec. 19, 2024, for an amount
not to exceed $583,800.
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15010 Avenue of Science
Suite 100
San Diego, CA 92128
T 858 485 6765
cumming-group.com December 19, 2024
Mr. John Maashoff
Facilities Engineering Division
Public Works, Fleet & Facilities Department
1635 Faraday
Carlsbad, CA 92008
Mr. Steven Stewart
Facilities Engineering Division
Public Works, Fleet & Facilities Department
1635 Faraday
Carlsbad, CA 92008
Transmitted via email correspondence to the following recipient(s): John.Maashoff@carlsbadca.gov
Steven.Stewart@carlsbadca.gov
Subject: Cumming Proposal for Construction Management Services
Monroe Street Pool Renovation
Dear Mr. Maashoff & Mr. Stewart:
Cumming Management Group, Inc. (“Cumming”) is pleased to submit this Proposal to provide Construction
Management Services to City of Carlsbad (“City”) for the subject referenced project.
SCOPE OF CONSTRUCTION MANAGEMENT SERVICES
Cumming’s scope of services shall include the following tasks noted within Exhibit A:
1.Task 1.2 – Contract Administration/Management
2.Task 1.3 – Reports and Communications
3.Task 1.4 – Photo Documentation
4.Task 1.5 – Construction Progress Meetings
5.Task 1.6 – Shop Drawings and Submittal Reviews
6.Task 1.7 – Plans and Specifications Interpretation
7.Task 1.8 – Construction Inspection Services (Oversight)
8.Task 1.9 – Progress Payments
9.Task 1.10 – Contractor’s Claims and Change Orders
10.Task 2 – Project Closeout
PROPOSED NOT-TO-EXCEED FEE
Cumming’s proposed compensation structure is based on time and materials, as illustrated in the table
below. From our experience, we have found that this compensation model traditionally provides our clients
with the most flexibility, cost effectiveness, and the ability to expeditiously mobilize resources to address any
immediate project needs.
PSA25-3654FAC; Exhibit "A"
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Jan. 14, 2025 Item #5 Page 23 of 39
cumming-group.com
Cumming is pleased to present proposed team member classifications with the associated hourly rates, who
are readily available to start immediately at the owner’s request to perform the scope of services outlined
within this Proposal:
TASK CLASSIFICATION HOURLY
RATE
DURATION
(DAYS)
EST.
HOURS
PROPOSED
FEES
1.2-1.10 CONSTRUCTION MANAGER (FT) $175 325 2,600 $455,000
2 CONSTRUCTION MANAGER (FT) $175 42 336 $58,800
PROPOSED NOT-TO-EXCEED FOR BASIC SERVICES $513,800
ALLOWANCE FOR AS-NEEDED SUPPORT SERVICES $50,000
ALLOWANCE FOR REIMBURSABLE EXPENSES $20,000
TOTAL PROPOSED NOT-TO-EXCEED FEE $583,800
It is important to note that our hourly rates are aligned with our Fee Proposal that accompanied our Technical
Proposal, which was submitted on 04/02/2024 in response to the City’s solicitation RFP24-2355FAC. Our
proposed fees are based on the scope of services requested and project information, i.e. project duration,
estimated construction value, etc. provided by the City during the procurement process. Cumming reserves
the right to amend our fees should there be substantial changes to the scope of services, construction budget,
project schedule, and/or project delivery method.
EXCLUSIONS + REIMBURSABLE EXPENSES
Cumming’s proposed fees are not inclusive of costs for on-site trailers, on-site office equipment, on-site
lavatories, internet, reprographics, marketing, travel, and other any costs associated in the performance of
the scope of services. Reimbursable expenses are to be billed at 0% markup and are inclusive of any expenses
within the scope of work that are requested and authorized in advance and in writing by the City, prior to
incurring the expense. Mileage beyond 50-miles of the project is subject to the current IRS rate.
Furthermore, any special or long-distance travel requested by the City that requires air fare, lodging, per
diem, etc. would also fall under the reimbursable expenses category and shall be billed at cost with 0%
markup.
IN CLOSING
Cumming supports several local municipalities and public agencies and therefore, recognizes your need for
the highest quality services at economical cost. We are flexible, willing to work within this project’s budget to
provide these services and would be happy to engage in a future discussion with you regarding our proposed
fees.
Cumming is grateful for the opportunity to continue supporting the City on this project and we are fully
committed to working with your team. Please feel free to contact me directly at (323) 855-4710 or by email
at asanchez@cumming-group.com should you have any questions regarding this Proposal.
Sincerely,
ANTHONY L. SANCHEZ
Executive Vice President
PSA25-3654FAC; Exhibit "A" (cont'd)
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ŶŽƚĞƐĂŶĚŝĚĞŶƚŝĨLJĂŶĚƌĞƉŽƌƚŶŽŶĐŽŶĨŽƌŵŝŶŐŝƚĞŵƐ͖ŶŽƚŝĨLJƚŚĞŝƚLJŽĨƐŝŐŶŝĨŝĐĂŶƚƉƌŽďůĞŵƐĂŶĚ
ĚŝƐĐƌĞƉĂŶĐŝĞƐ͖ĂƐƐŝƐƚƚŚĞŝƚLJǁŝƚŚŝŶƚĞƌƉƌĞƚŝŶŐĚƌĂǁŝŶŐƐ͕ƐƉĞĐŝĨŝĐĂƚŝŽŶƐĂŶĚƌĞĨĞƌĞŶĐĞƐƚĂŶĚĂƌĚƐ͖
ŵŽŶŝƚŽƌ ĐŽŶƐƚƌƵĐƚŝŽŶ ĂĐƚŝǀŝƚŝĞƐ ĂŶĚ ƐĐŚĞĚƵůĞƐ͖ĂƐƐŝƐƚ ƚŚĞ ŝƚLJǁŝƚŚ ƌĞƐŽůǀŝŶŐ ĐŽŶƐƚƌƵĐƚĂďŝůŝƚLJ
ƉƌŽďůĞŵƐ͖ĐŽŽƌĚŝŶĂƚĞĐŽŶŶĞĐƚŝŽŶƐĂŶĚŽƉĞƌĂƚŝŽŶƐ͖ƉĞƌĨŽƌŵƋƵĂůŝƚLJĂƐƐƵƌĂŶĐĞŝŶƐƉĞĐƚŝŽŶƐ͕ƌĞǀŝĞǁ
ĂŶĚŶĞŐŽƚŝĂƚĞĐŚĂŶŐĞŽƌĚĞƌƐ͕ƌĞǀŝĞǁĂŶĚŶŽƚŝĨLJƚŚĞŽŶƚƌĂĐƚŽƌŽĨƚĞƐƚƌĞƐƵůƚƐ͖ŝŶǀĞƐƚŝŐĂƚĞĐůĂŝŵƐ͖
ƌĞǀŝĞǁƚŚĞŽŶƚƌĂĐƚŽƌƐZĞĐŽƌĚƌĂǁŝŶŐƐƉĞƌŝŽĚŝĐĂůůLJĂŶĚĐŽŶĐƵƌƌĞŶƚůLJǁŝƚŚŽŶƚƌĂĐƚŽƌ͛ƐŵŽŶƚŚůLJ
ƉƌŽŐƌĞƐƐƐĐŚĞĚƵůĞƵƉĚĂƚĞƐĂŶĚŵŽŶƚŚůLJƉĂLJŵĞŶƚĂƉƉůŝĐĂƚŝŽŶƐ͖ĂŶĚƉƌĞƉĂƌĞƉƌŽũĞĐƚƉƵŶĐŚůŝƐƚƐ͕
ĞƚĐ͘
d^<ϭ͘ϯZĞƉŽƌƚƐĂŶĚŽŵŵƵŶŝĐĂƚŝŽŶƐ
ůůƌĞůĞǀĂŶƚƉƌŽũĞĐƚĐŽŵŵƵŶŝĐĂƚŝŽŶƐƐŚĂůůďĞĚŽĐƵŵĞŶƚĞĚĂŶĚƉƌŽŵƉƚůLJĚŝƐƚƌŝďƵƚĞĚƚŽƚŚĞŝƚLJ
ĂŶĚĂƉƉůŝĐĂďůĞƉĂƌƚŝĞƐ͘ůůŽƌŝŐŝŶĂůƉƌŽũĞĐƚĚŽĐƵŵĞŶƚƐĂŶĚĨŝŶĂůƉƌŽũĞĐƚƌĞƉŽƌƚƐƐŚĂůůďĞ
ĨƵƌŶŝƐŚĞĚƚŽƚŚĞŝƚLJǁŝƚŚŝŶϲϬĚĂLJƐĨŽůůŽǁŝŶŐƚŚĞŝƚLJΖƐĚĞƚĞƌŵŝŶĂƚŝŽŶŽĨ^ƵďƐƚĂŶƚŝĂů
ŽŵƉůĞƚŝŽŶ͘
DĂŝŶƚĂŝŶĨŝĞůĚŵĞŵŽƌĂŶĚĂ͕ƚƌĂŶƐŵŝƚƚĂůƐ͕ƵƉĚĂƚĞĚƐĐŚĞĚƵůĞƐ͕ůŽŐƐŽĨƐŚŽƉĚƌĂǁŝŶŐƐĂŶĚŽƚŚĞƌ
ƐƵďŵŝƚƚĂůƐ͕ůŽŐƐŽĨƌĞƋƵĞƐƚƐĨŽƌŝŶĨŽƌŵĂƚŝŽŶ͕ĐŚĂŶŐĞŽƌĚĞƌƐ͕ƉƌŽŐƌĞƐƐƉĂLJŵĞŶƚƌĞƋƵĞƐƚƐ͕ƉƌŽŐƌĞƐƐ
ŵĞĞƚŝŶŐƌĞƉŽƌƚƐ͕ĚĂŝůLJŝŶƐƉĞĐƚŝŽŶƌĞƉŽƌƚƐ͕ĚĂƚĞƐŽĨƵƚŝůŝƚLJƐĞƌǀŝĐĞŝŶƚĞƌƌƵƉƚŝŽŶƐ͕ĂŶĚĂůůŽƚŚĞƌ
ƉƌŽũĞĐƚĐŽƌƌĞƐƉŽŶĚĞŶĐĞ͘
DŽŶƚŚůLJƉƌŽŐƌĞƐƐƌĞƉŽƌƚƐƐŚĂůůďĞƉƌĞƉĂƌĞĚĂŶĚƐƵďŵŝƚƚĞĚƚŽƚŚĞŝƚLJΖƐWƌŽũĞĐƚDĂŶĂŐĞƌĂŶĚƐŚĂůů
ŝŶĐůƵĚĞƚŚĞĨŽůůŽǁŝŶŐĞůĞŵĞŶƚƐ͗
ĂͿ ^ƵŵŵĂƌLJ ŽĨ ƚŚĞ ƉƌŝŽƌ ŵŽŶƚŚΖƐ ŵĂŝŶ ĂĐĐŽŵƉůŝƐŚŵĞŶƚƐ ĂŶĚ ĐƵƌƌĞŶƚ ĐŽŶƐƚƌƵĐƚŝŽŶ
ĂĐƚŝǀŝƚŝĞƐ͘
ďͿ KǀĞƌĂůů͕ŽŶƚƌĂĐƚŽƌĐŽŶĨŽƌŵĂŶĐĞƚŽĐŽŶƚƌĂĐƚƐĐŚĞĚƵůĞĂŶĚƋƵĂůŝƚLJƌĞƋƵŝƌĞŵĞŶƚƐ͘
ĐͿ /ĚĞŶƚŝĨŝĐĂƚŝŽŶŽĨŬĞLJƉƌŽďůĞŵƐ͕ĂĐƚŝŽŶŝƚĞŵƐ͕ĂŶĚŝƐƐƵĞƐĂŶĚƌĞĐŽŵŵĞŶĚĂƚŝŽŶƐĨŽƌ
ƐŽůƵƚŝŽŶƐ͘
PSA25-3654FAC; Exhibit "A" (cont'd)
Docusign Envelope ID: E9B60834-741A-447C-AF39-6D51E46B081C
Jan. 14, 2025 Item #5 Page 25 of 39
ĚͿ ^ƵŵŵĂƌLJ ŽĨ ƉƌŽŐƌĞƐƐ ƉĂLJŵĞŶƚƐ͕ ƉƌŽƉŽƐĂů ĂŶĚ ĨŝŶĂů ĐŚĂŶŐĞ ŽƌĚĞƌƐ͕ ĚŝƐƉƵƚĞƐ͕
ƐƵďŵŝƚƚĂůƐ͕Z&ůƐ͕ĂŶĚEŽƚŝĐĞƐŽĨEŽŶĐŽŵƉůŝĂŶĐĞ͘
ĞͿ WŚŽƚŽŐƌĂƉŚƐŽĨƌĞƉƌĞƐĞŶƚĂƚŝǀĞƉƌŽũĞĐƚĂĐƚŝǀŝƚŝĞƐƉƌŝŶƚĞĚĂŶĚĞůĞĐƚƌŽŶŝĐĂůůLJƐƚŽƌĞĚ͘
d^<ϭ͘ϰWŚŽƚŽŽĐƵŵĞŶƚĂƚŝŽŶ
ZĞǀŝĞǁƚŚĞŽŶƚƌĂĐƚŽƌΖƐǀŝĚĞŽƚĂƉĞŽĨƉƌĞĐŽŶƐƚƌƵĐƚŝŽŶƐŝƚĞĐŽŶĚŝƚŝŽŶƐƉƌŝŽƌƚŽĂŶLJĐŽŶƐƚƌƵĐƚŝŽŶ
ŽƉĞƌĂƚŝŽŶƚŽĐŽŶĨŝƌŵĞdžŝƐƚŝŶŐĐŽŶĚŝƚŝŽŶƐǁŝƚŚŝŶƚŚĞůŝŵŝƚƐŽĨǁŽƌŬ͕ĂĚũĂĐĞŶƚĂƌĞĂƐ͕ĂŶĚĂůŽŶŐŚĂƵů
ƌŽĂĚƐ ƚŽ ĚŽĐƵŵĞŶƚ ĂŶĚ ĐůĞĂƌůLJ ĚĞƉŝĐƚ ƉƌĞͲĞdžŝƐƚŝŶŐ ĐŽŶĚŝƚŝŽŶƐ͘ WƌĞƉĂƌĞ ĂĚĚŝƚŝŽŶĂů ǀŝĚĞŽƚĂƉĞ
ĂŶĚͬŽƌƉŚŽƚŽŐƌĂƉŚƐƚŽĚŽĐƵŵĞŶƚƐŝƚĞĐŽŶĚŝƚŝŽŶƐĂƐƌĞƋƵŝƌĞĚƚŽƐƵƉƉůĞŵĞŶƚƚŚĞŽŶƚƌĂĐƚŽƌ͛Ɛ
ǀŝĚĞŽƚĂƉĞ͘
dĂŬĞĂŶĚƐŚĂƌĞĐŽŶƐƚƌƵĐƚŝŽŶĚŽĐƵŵĞŶƚĂƚŝŽŶƉŚŽƚŽŐƌĂƉŚƐŽŶĂƌĞŐƵůĂƌďĂƐŝƐ͘DĂŝŶƚĂŝŶĂĚŝŐŝƚĂů
ƉŚŽƚŽŐƌĂƉŚŝĐůŝďƌĂƌLJŽĨĂůůƐŝŐŶŝĨŝĐĂŶƚĐŽŶƐƚƌƵĐƚŝŽŶĂĐƚŝǀŝƚŝĞƐĂǀĂŝůĂďůĞĨŽƌƌĞǀŝĞǁŽŶĂƚůĞĂƐƚĂ
ǁĞĞŬůLJďĂƐŝƐǀŝĂƉƌŽũĞĐƚŵĂŶĂŐĞŵĞŶƚƐŽĨƚǁĂƌĞ͘WƌŽǀŝĚĞƵŶŝƋƵĞĨŝůĞŶĂŵĞƐĨŽƌƉŚŽƚŽƐǁŝƚŚĚĂƚĞ
ĂŶĚ ůŽĐĂƚŝŽŶ ŝŶĨŽƌŵĂƚŝŽŶ ŝŶĐůƵĚĞĚ͘ dĂŬĞ ĂĚĚŝƚŝŽŶĂů ƉŚŽƚŽŐƌĂƉŚƐƚŽ ĚŽĐƵŵĞŶƚ ĚŝĨĨĞƌŝŶŐ ƐŝƚĞ
ĐŽŶĚŝƚŝŽŶƐ͕ĐŚĂŶŐĞŽƌĚĞƌĂŶĚĐůĂŝŵŝƚĞŵƐ͕ĂŶĚĂŶLJƐƉĞĐŝĂůŽƌƵŶŝƋƵĞĐŽŶĚŝƚŝŽŶƐĂƐƚŚĞLJĂƌŝƐĞ͘
/ŶĐŽƌƉŽƌĂƚĞŶĞǁƐŽĨƚǁĂƌĞĐĂƉĂďŝůŝƚŝĞƐ;ůƵĞĞĂŵ͕ĞƚĐ͘ͿƚŚĂƚĂůůŽǁƉŚŽƚŽŐƌĂƉŚƐƚĂŬĞŶŝŶƚŚĞĨŝĞůĚ
ƚŽďĞůŝŶŬĞĚƚŽĂW&ŽĨƚŚĞƐŝƚĞƉůĂŶͬĚƌĂǁŝŶŐͬĚĞƚĂŝůŽĨƚŚĞƉŚŽƚŽŐƌĂƉŚĞĚůŽĐĂƚŝŽŶ͘ƌĞƉŽƌƚŽĨ
ƚŚĞƐĞƉŚŽƚŽƐůŝŶŬĞĚƚŽƚŚĞŝƌůŽĐĂƚŝŽŶŝƐƚŽďĞƉƌŽǀŝĚĞĚǁĞĞŬůLJ͘WŚŽƚŽƐƐŚĂůůďĞƵƉůŽĂĚĞĚƚŽƚŚĞ
ĂƉƉƌŽǀĞĚƉƌŽũĞĐƚĚŽĐƵŵĞŶƚŵĂŶĂŐĞŵĞŶƚƐŝƚĞƌĞŐƵůĂƌůLJ͘
d^<ϭ͘ϱŽŶƐƚƌƵĐƚŝŽŶWƌŽŐƌĞƐƐDĞĞƚŝŶŐƐ
^ĐŚĞĚƵůĞĂŶĚĐŽŶĚƵĐƚǁĞĞŬůLJĐŽŶƐƚƌƵĐƚŝŽŶƉƌŽŐƌĞƐƐŵĞĞƚŝŶŐƐǁŝƚŚƚŚĞŽŶƚƌĂĐƚŽƌĂŶĚƚŚĞŝƚLJ͘
WƌŽǀŝĚĞ ŵĞĞƚŝŶŐ ĂŐĞŶĚĂƐ ĂŶĚ ĚŝƐĐƵƐƐ ƚŚĞ ƐĐŚĞĚƵůĞ͕ ŶĞĂƌͲƚĞƌŵ ĂĐƚŝǀŝƚŝĞƐ͕ ĐůĂƌŝĨŝĐĂƚŝŽŶƐ ĂŶĚ
ƉƌŽďůĞŵƐǁŚŝĐŚŶĞĞĚƌĞƐŽůƵƚŝŽŶ͕ĐŽŽƌĚŝŶĂƚŝŽŶǁŝƚŚŽƚŚĞƌŽŶƚƌĂĐƚŽƌƐ͘ƐƚĂƚƵƐŽĨĐŚĂŶŐĞŽƌĚĞƌƐ͕
ƐĂĨĞƚLJŝƐƐƵĞƐ͕ĞƚĐ͘WƌĞƉĂƌĞŵŝŶƵƚĞƐŽĨƚŚĞŵĞĞƚŝŶŐƐǁŝƚŚŝĚĞŶƚŝĨŝĞĚĂĐƚŝŽŶŝƚĞŵƐ͘WƌĞƉĂƌĞĂŶĚ
ĚŝƐƚƌŝďƵƚĞƚŚĞŵŝŶƵƚĞƐƚŽƚŚĞĂƚƚĞŶĚĞĞƐǁŝƚŚŝŶƚǁŽǁŽƌŬŝŶŐĚĂLJƐ͘/ŶĐůƵĚĞŵŝŶƵƚĞƐŝŶƚŚĞŵŽŶƚŚůLJ
ƉƌŽŐƌĞƐƐƌĞƉŽƌƚƐ͘
d^<ϭ͘ϲ^ŚŽƉƌĂǁŝŶŐƐĂŶĚ^ƵďŵŝƚƚĂůZĞǀŝĞǁƐ
^ƵďŵŝƚƚĂůƌĞǀŝĞǁĂŶĚĂƉƉƌŽǀĂůĂƌĞƚŚĞƌĞƐƉŽŶƐŝďŝůŝƚLJŽĨƚŚĞĂƌĐŚŝƚĞĐƚĂŶĚƚŚĞŝƚLJΖƐWƌŽũĞĐƚ
DĂŶĂŐĞƌ͘dŚĞĐŽŶƐƵůƚĂŶƚƐŚĂůůďĞƌĞƐƉŽŶƐŝďůĞĨŽƌƉƌŽĐĞƐƐŝŶŐĂŶĚŵŽŶŝƚŽƌŝŶŐƚŚĞƐƚĂƚƵƐŽĨĂůů
ƐƵďŵŝƚƚĂůƐ͘
dŚĞ ĐŽŶƐƵůƚĂŶƚ ƐŚĂůů ƉƌŽǀŝĚĞ ĐƵƌƐŽƌLJ ƌĞǀŝĞǁ ŽĨ ƚŚĞ ŽŶƚƌĂĐƚŽƌΖƐƐƵďŵŝƚƚĂůƐĨŽƌŐĞŶĞƌĂů
ĐŽŶĨŽƌŵĂŶĐĞǁŝƚŚƚŚĞĐŽŶƚƌĂĐƚĚŽĐƵŵĞŶƚƌĞƋƵŝƌĞŵĞŶƚƐƉƌŝŽƌƚŽƐĞŶĚŝŶŐƚŚĞƐƵďŵŝƚƚĂůƐƚŽƚŚĞ
ĂƌĐŚŝƚĞĐƚĂŶĚŝƚLJWƌŽũĞĐƚDĂŶĂŐĞƌ͘^ƵďŵŝƚƚĂůƐŽĨĂŐĞŶĞƌĂůŶĂƚƵƌĞ;'ĞŶĞƌĂůWƌŽǀŝƐŝŽŶƐΘŝǀŝƐŝŽŶ
ϭZĞƋƵŝƌĞŵĞŶƚƐͿĂƌĞƚŽďĞƌĞǀŝĞǁĞĚĂŶĚƉƌŽĐĞƐƐĞĚďLJƚŚĞĐŽŶƐƵůƚĂŶƚ͘ZĞǀŝĞǁŽĨƚŚĞŽŶƚƌĂĐƚŽƌΖƐ
ĐŽŶƐƚƌƵĐƚŝŽŶƐĐŚĞĚƵůĞĂŶĚŵŽŶƚŚůLJƵƉĚĂƚĞƐƐŚĂůůďĞƚŚĞƐŽůĞƌĞƐƉŽŶƐŝďŝůŝƚLJŽĨƚŚĞĐŽŶƐƵůƚĂŶƚǁŝƚŚ
ŝŶƉƵƚƉƌŽǀŝĚĞĚĨƌŽŵƚŚĞĂƌĐŚŝƚĞĐƚĂŶĚŝƚLJ͘
ŽŶƐƵůƚĂŶƚǁŝůůůŽŐ͕ƚƌĂĐŬ͕ĂŶĚŵŽŶŝƚŽƌƚŚĞƌĞǀŝĞǁŽĨƐŚŽƉĚƌĂǁŝŶŐƐ͕ĐĂůĐƵůĂƚŝŽŶƐ͕ĚĂƚĂƐĂŵƉůĞƐ͕
ƐƵďŵŝƚƚĂůƐ͕ǁĂƌƌĂŶƚŝĞƐĂŶĚŵĂŶƵĂůƐĨƌŽŵƚŚĞŽŶƚƌĂĐƚŽƌ͘^ŚŽƉĚƌĂǁŝŶŐƐĂŶĚƐƵďŵŝƚƚĂůƐǁŚŝĐŚĚŽ
ŶŽƚ ƐĂƚŝƐĨLJ ƚŚĞ ƉƌŽũĞĐƚ ĐƌŝƚĞƌŝŽŶ ƐŚĂůů ďĞ ƌĞƚƵƌŶĞĚ ƚŽ ƚŚĞ ŽŶƚƌĂĐƚŽƌǁŝƚŚĐŽŵŵĞŶƚƐĨŽƌ
PSA25-3654FAC; Exhibit "A" (cont'd)
Docusign Envelope ID: E9B60834-741A-447C-AF39-6D51E46B081C
Jan. 14, 2025 Item #5 Page 26 of 39
ĐŽƌƌĞĐƚŝŽŶƐĂŶĚƌĞƐƵďŵŝƚƚĂů͘ džĐĞƉƚŝŽŶƌĞƉŽƌƚƐ͕ƚŚĂƚŝĚĞŶƚŝĨLJŽƵƚƐƚĂŶĚŝŶŐƐƵďŵŝƚƚĂůƐŽƌƌĞǀŝĞǁƐ
ŶĞĞĚĞĚ͕ƐŚĂůůďĞƉƌĞƉĂƌĞĚƉĞƌŝŽĚŝĐĂůůLJďLJƚŚĞĐŽŶƐƵůƚĂŶƚ͘WƌĞůŝŵŝŶĂƌLJůŝƐƚƐŽĨŝŶŝƚŝĂůƐƵďŵŝƚƚĂů
ƌĞƋƵŝƌĞŵĞŶƚƐƐŚĂůůďĞƉƌĞƉĂƌĞĚďLJƚŚĞ ĐŽŶƐƵůƚĂŶƚĂŶĚŝƐƐƵĞĚĂƚƚŚĞŝŶŝƚŝĂůƉƌŽũĞĐƚƉƌŽŐƌĞƐƐ
ŵĞĞƚŝŶŐƐ͘
d^<ϭ͘ϳWůĂŶƐĂŶĚ^ƉĞĐŝĨŝĐĂƚŝŽŶƐ/ŶƚĞƌƉƌĞƚĂƚŝŽŶ
dŚĞĐŽŶƐƵůƚĂŶƚƐŚĂůůƌĞǀŝĞǁĂŶĚƌĞƐƉŽŶĚƚŽŽŶƚƌĂĐƚŽƌZ&ůƐŝĨŽĨĂŐĞŶĞƌĂůŶĂƚƵƌĞ͘dĞĐŚŶŝĐĂůZ&/Ɛ
ƐŚĂůůďĞƐƵďŵŝƚƚĞĚƚŽƚŚĞĂƌĐŚŝƚĞĐƚĂŶĚŝƚLJĨŽƌƌĞƐƉŽŶƐĞ͘dŚĞĐŽŶƐƵůƚĂŶƚƐŚĂůůŵĂŝŶƚĂŝŶĂůŽŐŽĨ
Z&ůƐĂŶĚƉƌŽǀŝĚĞǁƌŝƚƚĞŶĐůĂƌŝĨŝĐĂƚŝŽŶƚŽƚŚĞŽŶƚƌĂĐƚŽƌŝŶĂƚŝŵĞůLJŵĂŶŶĞƌ͘ZĞƐƉŽŶƐĞƐƚŽƌĞƋƵĞƐƚƐ
ĨŽƌĐŚĂŶŐĞƐƚŽƚŚĞĚĞƐŝŐŶƌĞƋƵŝƌĞƉƌŝŽƌĂƉƉƌŽǀĂůĨƌŽŵƚŚĞĂƌĐŚŝƚĞĐƚĂŶĚŝƚLJΖƐWƌŽũĞĐƚDĂŶĂŐĞƌ͘
KďƚĂŝŶ ĂŶĚ ŵĂŝŶƚĂŝŶ ƐƉĞĐŝĨŝĐĂƚŝŽŶ ƌĞĨĞƌĞŶĐĞĚ ƐƚĂŶĚĂƌĚƐ ŝŶĐůƵĚŝŶŐ ůŽĐĂů ĂŶĚ ƌĞŐŝŽŶĂů
ƐƉĞĐŝĨŝĐĂƚŝŽŶƐ͕ĐŽĚĞƐ͕ƐƚĂŶĚĂƌĚƐ͕ƉƵďůŝĐĂƚŝŽŶƐ͕ƌĞŐƵůĂƚŝŽŶƐ͕ĂƉƉůŝĐĂďůĞƉĞƌŵŝƚƚŝŶŐĐƌŝƚĞƌŝĂĨƌŽŵ
ůŽĐĂů͕ƐƚĂƚĞ͕ĂŶĚĨĞĚĞƌĂůĂŐĞŶĐŝĞƐ͕ƐƚĂŶĚĂƌĚĚƌĂǁŝŶŐƐĂŶĚƐƉĞĐŝĨŝĐĂƚŝŽŶƐŽĨƚŚĞůŽĐĂůĂŐĞŶĐŝĞƐ͕ĂŶĚ
ƌĞůĂƚĞĚĚŽĐƵŵĞŶƚƐ͕ĂƐƌĞĨĞƌĞŶĐĞĚŝŶƚŚĞĐŽŶƚƌĂĐƚĚŽĐƵŵĞŶƚƐĂŶĚĂƐƌĞƋƵŝƌĞĚƚŽƉĞƌĨŽƌŵƚŚĞ
ǁŽƌŬ͘
d^<ϭ͘ϴŽŶƐƚƌƵĐƚŝŽŶ/ŶƐƉĞĐƚŝŽŶ^ĞƌǀŝĐĞƐ
ŽŶƐƵůƚĂŶƚǁŝůůďĞƌĞƐƉŽŶƐŝďůĞĨŽƌƚŚĞŽǀĞƌĂůůƋƵĂůŝƚLJĂƐƐƵƌĂŶĐĞŽĨƚŚĞƉƌŽũĞĐƚĂŶĚǁŽƌŬǁŝƚŚŝƚLJ
ƐƚĂĨĨƌĞƐƉŽŶƐŝďůĞĨŽƌĐŽĚĞĐŽŵƉůŝĂŶĐĞ͘WƌŽǀŝĚĞĨƵůůƚŝŵĞŝŶƐƉĞĐƚŝŽŶƚŽĞŶƐƵƌĞƚŚĂƚƚŚĞŽŶƚƌĂĐƚŽƌΖƐ
ǁŽƌŬŝƐĐŽŵƉůŝĂŶƚǁŝƚŚƚŚĞƉƌŽũĞĐƚĐƌŝƚĞƌŝŽŶ͘WƌĞƉĂƌĞĚĂŝůLJƌĞƉŽƌƚƐŽĨƚŚĞĐŽŶƐƚƌƵĐƚŝŽŶĂĐƚŝǀŝƚŝĞƐ
ŝŶĐůƵĚŝŶŐ ǁĞĂƚŚĞƌ ĐŽŶĚŝƚŝŽŶƐ͕ ŽŶƚƌĂĐƚŽƌΖƐ ĞƋƵŝƉŵĞŶƚ ĂŶĚ ŵĂŶƉŽǁĞƌ͕ ǁŽƌŬ ƉĞƌĨŽƌŵĞĚ͕
ŵĂƚĞƌŝĂůƐƵƐĞĚ͕ƐŝƚĞǀŝƐŝƚŽƌƐ͕ĚĞůĂLJƐŝŶǁŽƌŬĂŶĚƌĞĂƐŽŶƐĨŽƌƚŚĞĚĞůĂLJƐ͕ĂŶĚĚĞĨŝĐŝĞŶĐŝĞƐ͘WƌĞƉĂƌĞ
ĚĂŝůLJ ƌĞƉŽƌƚƐ ŽĨ ĚĞǀŝĂƚŝŽŶƐ ĂŶĚ ŶŽŶͲĐŽŶĨŽƌŵĂŶĐĞ ƚŽ ƉƌŽũĞĐƚ ĐƌŝƚĞƌŝŽŶ ĂŶĚ ƉƌŽǀŝĚĞ Ă ƚŝŵĞůLJ
ƌĞƐƉŽŶƐĞ͘
ŽŽƌĚŝŶĂƚĞĂŶĚƐƵƉĞƌǀŝƐĞĐŝƚLJĐŽŶƚƌĂĐƚĞĚƐƉĞĐŝĂůŝŶƐƉĞĐƚŝŽŶƐĂƐƌĞƋƵŝƌĞĚĂŶĚĚŝƐĐƵƐƐǁŝƚŚƚŚĞ
ŽŶƚƌĂĐƚŽƌĂƉƉƌŽƉƌŝĂƚĞƌĞǀŝƐŝŽŶƐƚŽƚŚĞŵĞƚŚŽĚƐĂŶĚƉƌŽĐĞĚƵƌĞƐƵƐĞĚŝŶƉĞƌĨŽƌŵŝŶŐƚŚĞǁŽƌŬ͘
dŚĞƐƉĞĐŝĂůŝŶƐƉĞĐƚŽƌƐŵĂLJŶŽƚĂƵƚŚŽƌŝnjĞĞdžƚƌĂǁŽƌŬŽƌĂƉƉƌŽǀĞŽĨǁŽƌŬƚŚĂƚĚĞǀŝĂƚĞƐĨƌŽŵƚŚĞ
ƉƌŽũĞĐƚĐƌŝƚĞƌŝŽŶ͘
ŽŶƐƵůƚĂŶƚǁŝůůŝŶƐƉĞĐƚŵĂƚĞƌŝĂůƐĂƐƚŚĞLJĂƌƌŝǀĞŽŶƐŝƚĞĂŶĚǀĞƌŝĨLJƚŚĂƚĂůůŵĂƚĞƌŝĂůƐĂŶĚĞƋƵŝƉŵĞŶƚ
ŵĞĞƚƉƌŽũĞĐƚĐƌŝƚĞƌŝĂƌĞƋƵŝƌĞŵĞŶƚƐĂŶĚĂƌĞƉƌŽƉĞƌůLJƐƚŽƌĞĚ͘dŚĞĐŽŶƐƵůƚĂŶƚǁŝůůŝŶƐƉĞĐƚƚŚĞƐŝƚĞ
ĚĂŝůLJ͕ŝŶĐůƵĚŝŶŐĂŶLJƐŝƚĞDWŵĞĂƐƵƌĞƐ͕ŵĂŶĂŐĞƐƉĞĐŝĂůŝŶƐƉĞĐƚŽƌƐ͕ĂŶĚĐŽŽƌĚŝŶĂƚĞǁŝƚŚĂŶLJ
ŐĞŽƚĞĐŚŶŝĐĂůĂŶĚŵĂƚĞƌŝĂůƚĞƐƚŝŶŐĐŽŶƐƵůƚĂŶƚƐĂŶĚďĞƌĞƐƉŽŶƐŝďůĞĨŽƌƚŚĞŽǀĞƌĂůůƋƵĂůŝƚLJĂƐƐƵƌĂŶĐĞ
ŽĨƚŚĞƉƌŽũĞĐƚ͘
d^<ϭ͘ϵWƌŽŐƌĞƐƐWĂLJŵĞŶƚƐ
ZĞǀŝĞǁƉƌŽũĞĐƚͲƌĞůĂƚĞĚŝŶǀŽŝĐĞƐĂŶĚƉƌŽŐƌĞƐƐƉĂLJŵĞŶƚƐ͘^ƵďŵŝƚĂůůŝŶǀŽŝĐĞƐƚŽƚŚĞŝƚLJΖƐWƌŽũĞĐƚ
DĂŶĂŐĞƌǁŝƚŚĂƌĞĐŽŵŵĞŶĚĂƚŝŽŶƐƚĂƚŝŶŐƚŚĞƉƌŽƉĞƌĂŵŽƵŶƚĨŽƌƉĂLJŵĞŶƚ͘hƐĞƚŚĞ^ĐŚĞĚƵůĞŽĨ
sĂůƵĞƐĂŶĚĂĐƚƵĂůƋƵĂŶƚŝƚŝĞƐĨŽƌƉĂLJŵĞŶƚƌĞƋƵĞƐƚƌĞǀŝĞǁƐ͘dŚĞŝƚLJǁŝůůƉƌŽǀŝĚĞĂĨŽƌŵĂƚĨŽƌ
ŵŽŶƚŚůLJƉƌŽŐƌĞƐƐƉĂLJŵĞŶƚƐďĂƐĞĚŽŶƚŚĞŝĚ^ĐŚĞĚƵůĞŝŶƚŚĞĐŽŶƚƌĂĐƚ͘
PSA25-3654FAC; Exhibit "A" (cont'd)
Docusign Envelope ID: E9B60834-741A-447C-AF39-6D51E46B081C
Jan. 14, 2025 Item #5 Page 27 of 39
d^<ϭ͘ϭϬŽŶƚƌĂĐƚŽƌΖƐůĂŝŵƐĂŶĚŚĂŶŐĞKƌĚĞƌƐ
/ŶĂĐĐŽƌĚĂŶĐĞǁŝƚŚƚŚĞŝƚLJΖƐ^ƚĂŶĚĂƌĚWƵďůŝĐtŽƌŬƐŽŶƚƌĂĐƚĂŶĚ^ƵƉƉůĞŵĞŶƚĂůWƌŽǀŝƐŝŽŶƐ͕
ŝĚĞŶƚŝĨLJ͕ƉƌĞƉĂƌĞ͕ůŽŐ͕ĂŶĚŵŽŶŝƚŽƌĂůůŽŶƚƌĂĐƚŽƌŽƌŝƚLJŝŶŝƚŝĂƚĞĚĐůĂŝŵƐ͕ĐŚĂŶŐĞƐ͕ĞdžƚƌĂǁŽƌŬ͕
ĂŶĚĐŚĂŶŐĞŽƌĚĞƌƐ͘ƐƐŝƐƚƚŚĞŝƚLJΖƐWƌŽũĞĐƚDĂŶĂŐĞƌďLJǁŽƌŬŝŶŐƚŽŶĞŐŽƚŝĂƚĞĂůůĐůĂŝŵƐƚŽĂŶ
ĂŐƌĞĞĚŽŶƚƌĂĐƚŽƌͬŽŶƐƵůƚĂŶƚͬŝƚLJĐŽŶĐůƵƐŝŽŶ͘^ƵďŵŝƚƌĞƐƵůƚĂŶƚĐŚĂŶŐĞŽƌĚĞƌƐƚŽƚŚĞŝƚLJĨŽƌ
ĂƉƉƌŽǀĂů͘WƌĞƉĂƌĞĂƌĞƉŽƌƚƉƌŽǀŝĚŝŶŐƐƚĂƚĞŵĞŶƚŽĨĐůĂŝŵ͕ĞdžƚƌĂǁŽƌŬ͕ŽƌĐŚĂŶŐĞ͖ďĂĐŬŐƌŽƵŶĚ
ůĞĂĚŝŶŐƚŽŝƐƐƵĞ͖ƌĞƐŽůƵƚŝŽŶĂůƚĞƌŶĂƚŝǀĞƐ͖ĂŶĚƌĞƐŽůƵƚŝŽŶƌĞĐŽŵŵĞŶĚĂƚŝŽŶĨŽƌĂĐƚŝŽŶďLJƚŚĞŝƚLJ͘
WƌĞƉĂƌĞ ǁƌŝƚƚĞŶ ũƵƐƚŝĨŝĐĂƚŝŽŶ ĂŶĚ ŝŶĚĞƉĞŶĚĞŶƚ ĐŽƐƚ ĞƐƚŝŵĂƚĞƐ ĨŽƌ ĞĂĐŚ ĐŚĂŶŐĞ ŽƌĚĞƌ ĂĨƚĞƌ
ŶĞŐŽƚŝĂƚŝŶŐĐŽƐƚƐǁŝƚŚƚŚĞŽŶƚƌĂĐƚŽƌ͘WƌĞƉĂƌĞĐůĂŝŵƐ͕ĞdžƚƌĂǁŽƌŬ͕ĂŶĚĐŚĂŶŐĞŽƌĚĞƌƐƚŚĂƚƌĞƋƵŝƌĞ
ĚĞƐŝŐŶĐƌŝƚĞƌŝĂŵŽĚŝĨŝĐĂƚŝŽŶƐŽƌĐůĂƌŝĨŝĐĂƚŝŽŶƐ͕ŝŶĐůƵĚŝŶŐƌĞǀŝƐŝŽŶƐƚŽƚŚĞĚƌĂǁŝŶŐƐ͕ĚĞƚĂŝůƐ͕ĂŶĚ
ƐƉĞĐŝĨŝĐĂƚŝŽŶƐ͘
WƌŽǀŝĚĞƚŚĞůĞĂĚƌŽůĞĂŶĚƐƵƉƉŽƌƚƚŽƚŚĞŝƚLJŝŶƌĞƐŽůǀŝŶŐĐůĂŝŵƐĂŶĚĚŝƐƉƵƚĞƐ͘dŚŝƐƐŚĂůůŝŶĐůƵĚĞ
ǁƌŝƚƚĞŶƌĞƐƉŽŶƐĞƐƚŽŽŶƚƌĂĐƚŽƌƐĂŶĚƉƌŝǀĂƚĞƉĂƌƚŝĞƐ͕ŐŝǀŝŶŐĚĞƉŽƐŝƚŝŽŶƐ͕ĂƐƐŝƐƚŝŶŐǁŝƚŚĂƌďŝƚƌĂƚŝŽŶ
ĂŶĚůŝƚŝŐĂƚŝŽŶ͕ƐĞƌǀŝŶŐĂƐĂŶĞdžƉĞƌƚǁŝƚŶĞƐƐ͕ŝŶǀĞƐƚŝŐĂƚŝŶŐĐůĂŝŵƐĨŽƌĚĂŵĂŐĞƐďLJƉƌŝǀĂƚĞƐŽƵƌĐĞƐ͕
ĚĞƐŝŐŶƐĞƌǀŝĐĞƐĨŽƌƌĞƉůĂĐĞŵĞŶƚŽĨĚĂŵĂŐĞĚǁŽƌŬ͕ĂŶĚƐĞƌǀŝĐĞƐŵĂĚĞŶĞĐĞƐƐĂƌLJďLJŽŶƚƌĂĐƚŽƌ
ĚĞĨĂƵůƚ͘
d^<Ϯ͗WƌŽũĞĐƚůŽƐĞŽƵƚ
WƌĞƉĂƌĞĚĞƚĂŝůĞĚƉƌŽũĞĐƚƉƵŶĐŚůŝƐƚƐĂƚĐůŽƐĞŽƵƚŽĨƚŚĞƉƌŽũĞĐƚ͘hƉŽŶĐŽƌƌĞĐƚŝŽŶŽĨĚĞĨŝĐŝĞŶĐŝĞƐ͕
ƐĐŚĞĚƵůĞ͕ĐŽŽƌĚŝŶĂƚĞ͕ĂŶĚĐŽŶĚƵĐƚĂĨŝŶĂůǁĂůŬͲƚŚƌŽƵŐŚƉƌŝŽƌƚŽƚŚĞĂĐĐĞƉƚĂŶĐĞŽĨǁŽƌŬǁŝƚŚƚŚĞ
ŝƚLJ͘sĞƌŝĨLJǁŽƌŬ͕ƚĞƐƚŝŶŐ͕ĐůĞĂŶƵƉĂŶĚĚĞŵŽďŝůŝnjĂƚŝŽŶŝƐĐŽŵƉůĞƚĞ͘dǁŽǁŽƌŬŝŶŐĚĂLJƐĂĨƚĞƌĨŝŶĂů
ǁĂůŬͲƚŚƌŽƵŐŚ͕ĐŚĞĐŬĂŶĚƐƵďŵŝƚĨŝŶĂůƉĂLJŵĞŶƚƌĞƋƵĞƐƚƐ͘ZĞǀŝĞǁĂŶĚĐĞƌƚŝĨLJƚŚĂƚƚŚĞŽŶƚƌĂĐƚŽƌΖƐ
ƉƌŽũĞĐƚƌĞĐŽƌĚĚƌĂǁŝŶŐƐĂŶĚŽƉĞƌĂƚŝŽŶͬŵĂŝŶƚĞŶĂŶĐĞŵĂŶƵĂůƐĂƌĞĐŽŵƉůĞƚĞĂŶĚĂĐĐƵƌĂƚĞ͘
PSA25-3654FAC; Exhibit "A" (cont'd)
Docusign Envelope ID: E9B60834-741A-447C-AF39-6D51E46B081C
Jan. 14, 2025 Item #5 Page 28 of 39
Exhibit 3
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Brad Edwards
President
Edwards Construction Group
991 Bennett Ave
Arroyo Grande, CA 93421
December 23, 2024
Via Electronic Mail
Ms. Janean Hawney
Public Works/Contract Administrator
City of Carlsbad
1635 Faraday Ave
Carlsbad, CA 92008
Project: Monroe Street Pool Replacement, Project No. 4274 PWS25-3494FAC
RE: Rebuttal to Protest Letter from Construct 1 One Corp.
Ms. Janean Hawney:
The purpose of this letter is to rebut the protest Letter sent forth by Law offices
of Timothy P. Creyaufmiller representing Construct 1 One Corp. to award the above-
mentioned project to them. On December 23, 2024, Edwards Construction Group Inc.
received notification from the City of Carlsbad of a bid protest against Edwards for the
Monroe Street Pool Replacement Project, Project No. 4274 PWS25-3494FAC. In
review of the protest letter, Edwards believes they are in full compliance with both the
Public Contract Code and California State License Board licensing requirements for the
reasons stated below. The bid should continue to be awarded to Edwards Construction
Group Inc.(“ECG”) because ECG was the lowest responsive bidder on the Project and
therefore the protest from Construct 1 One Corp. must be set aside.
I.The Relevant Law
It is a basic rule of competitive bidding that bids must conform to the
specifications, and if a bid does not so conform, it may not be accepted. (Valley Crest
Landscape, Inc. v. City of Davis (1996) 41 Cal.App.4th 1432, 1440.) If there is a
variance in the contractor's bid which affects the amount of the bid or gives a bidder an
advantage or benefit not allowed another bidder, it renders the bid invalid. (Konica
Business Machines U.S.A. v. The Regents of the University of California (1988) 206
Cal.App.3d 449.) As the court stated in Konica, "The purpose of requiring
governmental entities to conduct competitive bidding is to eliminate favoritism, fraud,
and corruption; avoid misuse of public funds; and stimulate advantageous marketplace
competition. (Id. at 456.) Usually, whether a bid is responsive can be determined from
the face of the bid without outside investigation or information. (Valley Crest
Landscape, Inc. v. City Council of the City of Davis, 41 Cal.App.4th 1432 (1996).)
Exhibit 4
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In making a determination whether to accept a bid that does not strictly comply
with bidding requirements the public entity must consider that the public bidding laws
and requirements were adopted by the Legislature for the benefit of the public and the
public agencies. Compliance considerations must be viewed in light of the public
interest. (MCM Construction, Inc. v. City and County of San Francisco (1998) , 66 Cal.
App. 4th 359. It is adverse to the best interests of the public to ignore the requirements
of the bidding rules and documents when such rules are not minor
technicalities. Judson Pacific-Murphy Corp. v. Durkee, (1956) 144 Cal. App. 2d 377,
383; see also Cypress Security, 184 Cal. App. 4th at 1018.
Construct 1 states that ECG did not list a subcontractor for the structural steel
portion of work and that in not listing a subcontractor this would give us an unfair
advantage. ECG did not list the structural steel sub because it was not required for us
to list a trade either self-performing or subcontracting under minimum list per Public
Contract Code 4104. We are well within the law to not list vendors who are only doing
fabrication portions of work. We plan on complying with the law and will not use a
subcontractor to install the structural steel portion that isn’t less than .5%. Construct 1
claim is invalid and is only based on their own pricing received.
In this instance and as explained below, ECG's bid was not unresponsive. ECG
filled out the bid forms completely. ECG complied with all instructions relating to the
Bid Proposal and provided a complete application. Moreover, not only was ECG's bid
not unresponsive, but through the Bid Proposal ECG established that they were a
responsible bidder. Thus, Construct 1 claim that the project be awarded to them must
be set aside and continue to be awarded to ECG as the lowest responsible bidder.
II. ECG's Bid Was Not Unresponsive
It is further well established that a bid which substantially conforms to a call
for bids may, though it is not strictly responsive, be accepted if the variance
cannot have affected the amount of the bid or given a bidder an advantage or
benefit not allowed other bidders." (See Ghilotti Construction Co. v. City of
Richmond (1996) 45 Cal.App.4th 897 quoting 47 Ops.Cal.Atty.Gen.129).
Here, ECG completed in its entirety all sections of the bid in accordance with
the instructions and submitted all required information to the City at bid time. We did
not try and change our bid after the fact and therefore they cannot claim that we were
given an unfair advantage in bidding. All the statements seem to be speculation on what
we as a company might do. Construct 1 claims are baseless and start false claims of
what we may try after being awarded the project.
Construct 1 also claims that if we intend to self-perform the structural steel, we
do not hold the appropriate license classification. Again, this statement is false and does
not hold merit. We do have a “B” license classification and can self-perform work as
long as we are self-performing two unrelated trades. Please see below from contractor
state license board on what a B License can perform.
Business & Professional Code
Division 3, Chapter 9. Contractors, Article 4. Classifications
Jan. 14, 2025 Item #5 Page 38 of 39
(b) A general building contractor may take a prime contract or a subcontract
for a framing or carpentry project. However, a general building contractor shall not
take a prime contract for any project involving trades other than framing or carpentry
unless the prime contract requires at least two unrelated building trades or crafts other
than framing or carpentry, or unless the general building contractor holds the
appropriate license classification or subcontracts with an appropriately licensed
specialty contractor to perform the work.
If ECG elects to perform more than two unrelated trades, we are within the law
to perform the structural steel portion of work on this project. As long as we perform 2
other trades that are not framing, we would be able to self-perform.
Finally, in accordance with Instructions to Bidders, Responsive Bid Proposal,
a responsive bid proposal means a Bid Proposal which conforms in all material respects,
to the Bid and Contract Documents. Here, ECG's bid is unequivocally responsive
because ECG included all required Bid Documentation, as requested.
Since ECG's bid was low and is responsive, the only basis upon which the City
could arguably not award the bid to ECG was to determine, subjectively, that ECG was
not a responsible bidder. It is clear that ECG's bid was and is the lowest responsive bid
to be received by the City and on that basis alone, the City, as a matter of law, should
award the Project to ECG.
Conclusion
A bid is responsive if it promises to do what the bidding instructions demand.
A bidder is responsible if it can perform the contract as promised. Here, based on the
foregoing, ECG has identified herein two separate bases upon which the City must find
ECG's bid to be the lowest responsible bidder. Therefore, the City cannot award the
Project to Construct 1. Construct 1 claims are baseless and false and cannot provide any
evidence that ECG cannot subcontract is under minimum list or decides to self-perform.
ECG more than meets this requirement of work force, ability to execute work,
and to address warranty obligations. ECG currently employs over 80 full-time
employees, self-performing all major trade work, including surveying, earthwork, site
and structural concrete, utilities, rough framing, structural steel, along with others
within the public works sector and has always successfully completed our projects,
never having been assessed liquidated damages or penalties.
ECG was the lowest responsible bidder on the Project and provided a
responsive bid with a competitive price. ECG asks that the City reject Construct 1 claim
and award the Project contract to ECG.
Sincerely,
Brad Edwards
President, Edwards Construction Group, Inc.
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