Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2010-08-05 City Council Agenda Packet
08/05/10 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. Agenda posted according to PAMC Section 2.04.070. A binder containing supporting materials is available in the Council Chambers on the Friday preceding the meeting. Special Meeting Council Chambers August 5, 2010 6:00 PM ROLL CALL CITY MANAGER COMMENTS ORAL COMMUNICATIONS Members of the public may speak to any item not on the agenda; three minutes per speaker. Council reserves the right to limit the duration or Oral Communications period to 30 minutes. AGENDA CHANGES, ADDITIONS, AND DELETIONS HEARINGS REQUIRED BY LAW: Applications and/or appellants may have up to ten minutes at the outset of the public discussion to make their remarks and put up to three minutes for concluding remarks after other members of the public have spoken. ACTION ITEMS Include: Public Hearings, Reports of Committees/Commissions, Ordinances and Resolutions, Reports of Officials, Unfinished Business and Council Matters 1. Approval of Four Contract Documents for the Mitchell Park Library and Community Center and Main Library Measure N Bond Project (CIP PE- 09006 and PE-11000): (1) Contract with Flintco, Inc., in a Total Amount Not to Exceed $26,801,500 for Construction; (2) Contract Amendment Three with Group 4 Architecture, Research + Planning, Inc., to Add $1,503,696 for Construction Administration Services for the Mitchell Park Library and Community Center and to Add $1,763,304 for Design Services for the Main Library and for Preliminary Design of a Temporary Main Library for a Total Contract Amount Not to Exceed $7,423,710; (3) Contract Amendment Two with Turner Construction to Add $2,890,000 for Construction Management Services for the Mitchell Park Library and Community Center and to Add $118,250 for Project Administration Services During Design of the Main Library and Preliminary Design of a Temporary Main Library for a 2 08/05/10 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. Total Contract Amount Not to Exceed $3,578,448; and (4) Contract with Stoller Studios, Inc. in an Amount Not to Exceed $90,000 for Fabrication and Installation of Public Art for the Mitchell Park Library Entryway CMR 334:10 and ATTACHMENT PUBLIC COMMENT 2. Report from High Speed Rail Standing Committee on Recent Activity and Request for Authorization for the City Manager to Enter Into a Contract with Hatch Mott and McDonald in an Amount Not to Exceed $120,000 for On-Call Engineering Services Related to High Speed Rail (Item continued from August 2, 2010) CMR 310:10 and ATTACHMENT PUBLIC COMMENT 3. Designation of Voting Delegate and Alternate for 2010 League Conference (Item continued from August 2, 2010) CLERK REPORT 4. Approval of a Contract with Alternative Resources Inc. in the Total Amount Not To Exceed $197,758 for Energy/Compost Feasibility Study and Environmental Impact Initial Study (Item continued from August 2, 2010) CMR 333:10 and ATTACHMENT PUBLIC COMMENT 5. Utilities Advisory Commission Recommendation that Council Approve the Use of Up to $75,000 in Calaveras Reserve Funds to Partially Fund a $250,000 Energy/Compost Feasibility Study and Environmental Impact Initial Study (Item continued from August 2, 2010) 3 08/05/10 MATERIALS RELATED TO AN ITEM ON THIS AGENDA SUBMITTED TO THE CITY COUNCIL AFTER DISTRIBUTION OF THE AGENDA PACKET ARE AVAILABLE FOR PUBLIC INSPECTION IN THE CITY CLERK’S OFFICE AT PALO ALTO CITY HALL, 250 HAMILTON AVE. DURING NORMAL BUSINESS HOURS. CMR 323:10 and ATTACHMENT PUBLIC COMMENT 6. Approval of a Contract with Peterson Power Systems in a Total Amount Not to Exceed $201,853 for the Overhaul of a Caterpillar Model 3412e Diesel Engine and the Installation of a Required Best Available Control Technology (BACT) Diesel Emissions Retrofit Device (Item continued from August 2, 2010) CMR 304:10 and ATTACHMENT PUBLIC COMMENT COUNCIL MEMBER QUESTIONS, COMMENTS, AND ANNOUNCEMENTS Members of the public may not speak to the item(s). ADJOURNMENT Persons with disabilities who require auxiliary aids or services in using City facilities, services, or programs or who would like information on the City’s compliance with the Americans with Disabilities Act (ADA) of 1990, may contact 650-329-2550 (Voice) 24 hours in advance. TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: PUBLIC WORKS DATE: AUGUST 5, 2010 CMR:334:10 REPORT TYPE: ACTION SUBJECT: Approval of Four Contract Documents for the Mitchell Park Library and Community Center and Main Library Measure N Bond Project (CIP PE~09006 and PE-11 000): (1) Contract with Flintco, Inc., in a Total Amount Not to Exceed $26,801,500 for Construction; (2) Contract Amendment Three with Group 4 Architecture, Research + Planning, Inc., to Add $1,503,696 for Construction Administration Services for the Mitchell Park Library and Community Center and to Add $1,763,304 for Design Services for the Main Library and for Preliminary Design of a Temporary Main Library for a Total Contract Amount Not to Exceed $7,423,710; (3) Contract Amendment Two with Turner Construction to Add $2,890,000 for Construction Management Services for the Mitchell Park Library and Community Center and to Add $118,250 for Project Administration Services During Design of the Main Library and Preliminary Design of a Temporary Main Library for a Total Contract Amount Not to Exceed $3,578,448; and (4) Contract with Stoller Studios, Inc. in an Amount Not to Exceed $90,000 for Fabrication and Installation of Public Art for the Mitchell Park Library Entryway RECOMMENDATION Staff recommends that Council: 1. Approve and authorize the City Manager or his designee to execute a contract (Attachment A) with Flintco, Inc., in the amount of $24,365,000 for construction of a new Mitchell Park Library and Community Center (PE-09006). 2. Authorize the City Manager or his designee to negotiate and execute one or more change orders to the contract with Flintco, Inc., for related, additional but unforeseen work which may develop during the project, the total value of which shall not exceed $2,436,500. 3. Approve and authorize the City Manager to execute Amendment No. Three (Attachment B) to contract C09130744 with Group 4 Architecture, Research + Planning (Group 4 Architecture), Inc., to add up to $3,267,000 for a total contract amount not to exceed $7,423,710. Approval of Amendment No. Three includes the following additional workscope: CMR:334:10 Page 1 of9 a. Construction administration services for the Mitchell Park Library and Community Center (PE-09006), in the amount of $1,369,856 for basic services and $133,840 for additional services. b. Design services for the remodel and expansion of the Main Library (PE-11 000), in the amount of $1,563,415 for basic services and $141,342 for additional servIces c. Preliminary design services for a temporary Main Library (PE-11000), in the amount of$53,225 for basic services and $5,322 for additional services. 4. Approve and authorize the City Manager to execute Amendment No. Two (Attachment C) to contract C10131631 with Turner Construction, Inc., to add up to $3,008,250. This amount includes $2,737,500 for basic services and $270,750 for additional services for a total contract amount not to exceed $3,578,448. Approval of Amendment No. Two includes the following additional workscope: a. Construction management services for the Mitchell Park Library and Community Center (PE-09006), in the amount of $2,600,000 for basic services and $260,000 for additional services. b. Project administration services for the remodel and expansion of the Main Library (PE-llOOO), in the amount of $92,500 for basic services and $10,750 for additional services. c. Administrative services during preliminary design of a temporary Main Library (PE-11000), in the amount of$15,000. 5. Approve and authorize the City Manager to execute an Agreement with Stoller Studios, Inc. in an amount not to exceed $90,000 for the fabrication and installation of public art for the entryway of the Mitchell Park Library (Attachment E). BACKGROUND On July 7,2008, Council directed staff to proceed with placing on the November 2008 ballot a library/community center bond measure. Measure N, which passed on November 4, 2008, includes funding for construction of a new and expanded Mitchell Park Library and Community Center (MPLCC), renovation of the Downtown Library and renovation and expansion of the Main Library. Detailed history of the design development can be found in past City Manager's Reports (CMR) to Council (CMR:286:02, CMR:119:06, CMR:343:06, CMR:434:06; CMR:225:07, CMR:321:08, CMR:473:08, CMR:149:09) and CMR:248:10 that can be viewed at: http://www.cityofpaloalto.org/knowzone/reports/cmrs.asp). Construction of the MPLCC is scheduled to begin in September 2010 and be complete approximately two years later. The design of the Main Library will begin in the fall of 2010 and be complete approximately one year later. DISCUSSION Mitchell Park Library and Community Center The existing library is approximately 10,000 square feet and will be replaced with a new facility of 40,000 square feet. The new library will be two stories to accommodate an enlarged collection, a children's area, an acoustically separated teen area, group study rooms, staff areas and a program room. Increases in collection, seating, computers, children's area and CMR:334:10 Page 2 of9 programming space are planned to serve the projected population in 2030. Technical services staff, currently located in the temporary library at the Cubberly Community Center, will be relocated to the new Mitchell Park Library in order to facilitate intake for the entire library system. The existing Community Center is approximately 10,000 square feet and will be replaced with a new facility of 16,000 square feet. Similar to the existing community center, the new building will be a one-story building attached to the new library. The new community center will allow for additional programming space and rental availability. By sharing activity space, the joint facility will be smaller in size than two independent buildings and will create a more efficient use of the library/community center site. The joint MPLCC building has been designed to achieve the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Gold-level rating. Main Library The Main Library improvements will include small group study rooms that are acoustically separated from the rest of the existing building, and a new detached program space that will seat 100 people. To accommodate the new program space, the Main Library will expand by approximately 4,000 square feet from the current 21,000 square feet on the ground floor of the building (CMR:434:06). The interior of the existing library will also be reconfigured to make better use of areas that are vacated by relocating certain materials into the new detached building. Lighting and other existing building systems will also be upgraded. All of the improvements will be made with consideration for the historic nature of the existing building. Improvements to the Main Library will be the final phase of the Measure N Bond measure projects. Temporary Main Library Design and construction costs for a temporary Main Library are bondable. Given lower than anticipated construction costs on these projects, the City has an opportunity to provide a temporary Main Library facility, if an appropriate location can be found, costs can be accommodated within the available bond funding and Council approves moving forward with the facility. Costs for the preliminary design and project administration associated with the temporary library will be paid from the Main Library CIP PE-11000 but will be tracked separately. Costs for a temporary Main Library will require approval by Council as indicated on April 12, 2010 (CMR:209:10) and an allowance of $1,000,000 for a temporary library has been set aside in the initial bond sale (CMR:242: 1 0). Mitchell Park Library and Community Center Contracts and Bid Process Contractor Prequalification Given the size, complexity and location of the Mitchell Park project, staff wanted to ensure that any contractor selected would be capable of completing the project in a high quality and timely fashion. In March 2010, a Request for Prequalification of Bidders was advertised and posted at local Builder's Exchanges. Any contractor who intended to submit a bid was required to complete a questionnaire that presented the company's financial status, ability to obtain bonding, experience on similar structures, and references. The application focused on essential requirements for public bids, history and organizational performance, safety, LEED and relevant technical experience, performance on recent projects and customer feedback. Approved companies demonstrated a successful, established organization with a positive track record in similar public projects. CMR:334:10 Page 3 of9 Of the 23 applicants, 10 contractors passed the initial review. Three more passed with supplemental review for a total of 13 pre-qualified bidders. Safety, LEED experience and project data sheets showing relevant, successful work were the main differentiators. Bidding Phase A notice inviting formal bids (IFB) for the Mitchell Park Library and Community Center Construction was sent to the thirteen pre-qualified contractors. The bidding period was 39 days. Bids were received from six contractors on July 13, 2010, as listed on the attached bid summary (Attachment D). Bids ranged from a low of$24,365,000 to a high of$30,791,283. Summary of Bid Process Bid NamelNumber IFB136473 Mitchell Park Library & Community Center Project Proposed Length of Project 700 days Number of Bids Mailed to 41 Contractors Number of Bids Mailed to Builder's 12 Exchanges Total Days to Respond to Bid 39 Pre-Bid Meeting? Yes Number of Company Attendees at 10 Pre-Bid Meeting Number of Bids Received SIX Bid Price Range* Low of $24,365,000 to a high of$30,791,283 *Bid summary provided in Attachment D Staff has reviewed all bids submitted and recommends that the bid of $24,3 65,000 submitted by Flintco, Inc., be accepted and that Flintco, Inc., be declared the lowest responsible bidder. The bid is 25 percent below the engineer's estimate of $32,400,000. The engineer's estimate was developed using data from two separate estimates; one prepared by a professional cost- estimating firm, Davis Langdon Associates and another estimate prepared by the City's construction management firm, Turner Construction. The low bids for this project can be attributed to the current depressed economic conditions, which are highly conducive to competitive bidding. The low bid from Flintco is also in keeping with recent construction bids on City projects being 20-40 percent below the. engineer's estimate. Staff confirmed with the Contractor's State License Board that the contractor has an active license on file. Staff checked references supplied by the contractor for previous work performed and found no major complaints. The second lowest bidder, C. Overaa, filed a protest on July 22, arguing that Flintco had failed to adequately list subcontractors for plumbing, heating, ventilation and air conditioning work. The City carefully reviewed these claims and determined that Flintco's subcontractor listing was similar to that of other bidders. The City notified Overaa of its findings and Overaa withdrew its protest on August 2. No other protests were submitted within the protest period. Tree Removal and Replacement In order to construct the new MPLCC and parking lot, certain trees will need to be removed and new trees planted. The Planning and Public Works arborists met with a consulting arborist, Mr. David Babby of Arbor Resources, Inc., to develop a suitable tree replacement plan. There are CMR:334:10 Page 4 of9 100 trees on the existing site, of which 73 will be removed due to construction impacts, age, and susceptibility to limb drop or a combination of these things. Two existing trees have already been relocated to other areas of Mitchell Park and staff is salvaging small plantings for use elsewhere. To the 25 trees that will remain, 56 new trees will be added as part of the project. These new trees were selected in part because of their shape and color but also because of their ability to thrive with the use of reclaimed water, which is projected to be available at the site in approximately five years. The new trees will also provide the level of shade required throughout the site. This will result in a total of 81 trees at the site, with a net loss of 19 trees. It should be noted that although there is a net loss of trees, the building footprint has increased from roughly 20,000 for the two existing buildings to 36,000 square feet for the joint facility. Trees that are to be removed will be posted with removal signs for two weeks. Coordination with CANOPY will occur prior to the removal of trees. There are mature stone pines at the north end of the site that are slated for removal prior to construction. These stone pines appear to have been planted at the time the original library was constructed and as such as likely 50 years old. They are at the stage of growth where limbs have begun to fail. If allowed to remain, these pines would abut the new MPLCC parking lot which would require their roots to be cut, further compromising the trees' health. These pines are recommended for removal because they are unlikely to survive construction without extraordinary measures and because they have already begun to drop limbs. A stone pine of similar age in Mitchell Park dropped a limb and injured a boy, resulting in a lawsuit against the City. The entire grove of stone pine trees were then severely pruned but after several years of continued limb drop, the entire grove of trees was removed. Stone pines of the same age have also been removed along San Antonio Road because of the damage they have caused to the pavement and their susceptibility to limb <;irop. Public Works tree crews continue to trim broken limbs on an almost weekly basis for the Stone Pines that remain on San Antonio Road. While the Stone Pines are slated for removal, there are several large trees that the project team wanted to preserve and in fact the library/community center was broken into three separate buildings in order to preserve an existing oak tree. A large group of blue atlas cedars has been carefully preserved and artwork has been specifically placed to accent the trees. In addition to City Council, Architectural Review Board (ARB), Parks and Recreation Commission and Art Commission meetings, specific public outreach for the project was as follows: ·City Manager Press release: February 22,2010; October 12, 2009 and May 6,2009 ·Community Meetings: March 18,2010; October 29,2009 and May 19, 2009 ·City website: tree removal plans posted in October 2009; minor update on February 23,2010 • ARB meeting notification, 600 foot radius mailing: September 3, 2009 and February 18, 2010 Group 4 Architecture Contract Amendment Amendment No.3 (Attachment B) to the contract with Group 4 Architecture will provide for general construction administration oversight during the construction phase of the MPLCC. Also included in Amendment No.3 are services for the preparation of final construction documents for the Main Library and for preliminary design of any temporary Main Library. The preliminary design for a temporary Main Library will begin only if a suitable location is found. The preliminary drawings will be used to develop a concept plan and viable construction cost estimates. Staff will report the findings to Council and request direction prior to proceeding with CMR:334:10 Page 5 of9 a more detailed design. Turner Construction Contract Amendment The project administration workload for the Measure N bond projects is beyond what Public Works staff can administer without assistance. Amendment No.2 to the contract with Turner Construction (Attachment C) will provide for staff from Turner Construction to supplement Public Works staff during the construction of the MPLCC. In addition to providing daily oversight of the respective contractors, sub consultants to Turner Construction will provide testing and inspection services for the project. Also included in Amendment No.2 are project administration services for the preliminary design of a temporary Main Library during the construction document phase of the Main Library. Mitchell Park Library Entryway Public Art Contract Award to Stoller Studios, Inc. The Public Art Commission recommends that the City Council approve a contract with Roger Stoller to fabricate and install a public art piece in the entryway of the Mitchell Park Library. This recommendation follows a comprehensive selection process that incorporated input from numerous stakeholders and is one component of the proposed public art program for the Mitchell Park library/community center campus. In October 2009, the Council approved a contract for $280,000 with artist Bruce Beasley using the One Percent for Art funds associated with this project (CMR:410:09). The artist will create a sculpture to be located along Middlefield Road in front of the new Mitchell Park Library and Community Center. That contract award was consistent with prior Council direction that a Bruce Beasley sculpture be considered for the Mitchell Park Library and Community Center instead of at the California Avenue fountain site, as originally proposed. The City maintains a policy that one percent of the construction costs for new public facilities be dedicated to the creation of a public art piece at the new facility. The funding for the Bruce Beasley piece will come from the One Percent for Art funds for this project. These funds will come from bond proceeds authorized by the voters as part of the approval of the Measure N library and community center bond. Given that the Mitchell Park Library and Community Center is the largest capital project that the City has undertaken in 50 years, there is a unique opportunity to create a showcase of public art within the project. In recognition of this fact, the Public Art Commission, with input from the library bond stakeholders, identified three key areas to incorporate additional art installations throughout the complex. The Commission voted to authorize $120,000 in public art funds (from the City's Capital Improvement Program) to create three additional pieces for the project: 1) an entryway piece for the library; 2) a mural for the teen center; and 3) artistically-designed bollards in the entryway courtyard. Only the entryway piece requires Council approval as the contract amount exceeds the City Manager's authorized signing authority of $85,000. All three pieces, however, have followed a similar selection process and engaged stakeholders. The City released a Request for Artist Proposals on April 9, 2010 for the three pieces. The deadline for proposals was May 12, 2010. The City received 22 proposals for the entryway piece. A selection panel was convened that was comprised of three Public Art Commissioners, a Library Advisory Commissioner, the Library Director, a representative from the Palo Alto Library Foundation, and a community member with a background in new media art. Staff from Public Works, Arts & Sciences, and from Group 4 Architects served as technical advisors to the panel. The panel met once to review all of the artist proposals and narrowed the list to three CMR:334:10 Page 60f9 finalists. The panel then met again in person with each of the three finalists to receive more details about each proposal. The panel ultimately recommended selection of Roger Stoller to receive the commission for the Mitchell Park library entryway piece. For the past nine years, Mr. Stoller has been sculpting full time out of studios in Portola Valley and San Jose, California. Prior to devoting his efforts to SCUlpting full time, Mr. Stoller maintained a thriving practice in industrial design and product development for corporate clients. He has installed pieces around the country, including installations at the Allen Public Library (Allen, Texas), the Jack London Market Building (Oakland, CA), and the Music Center Strathmore (Bethesda, MD). The piece he envisions for the Mitchell Park Library is entitled "Radiant Seed" and will consist of between 275-325 sq. ft. of "metal lace" sculpture that can be applied to different walls within the library entry area. The contract with Stoller Studios, Inc. is included as Attachment E and renderings of the piece are included as Attachment F. RESOURCE IMPACT On May 10, 2010, Council approved a Resolution authorizing the first issuance and sale of Measure N General Obligation (GO) in an amount not to exceed $60.0 million. Based on estimated project needs, staff sold bonds on June 9,2010 that yielded $58.5 million for projects. Once proceeds were received, staff drew down $4.3 million to reimburse the Infrastructure Reserve for library and community center expenses incurred between March 2, 2009 and receipt of bond monies. Total costs reimbursed to date are $4.3 million, leaving a $54.4 million balance in project funds. Costs for the various contracts being requested in this report are as follows: Flintco Construction Group 4 Architecture, Amendment No.3 MPLCC (PE-09006) $ 26,801,500 $ 1,503,696 Turner Construction, $ 2,890,000 Amendment No. 2 Total: $ 31,195,196 Group 4 Architecture, Amendment No.3 Main Library (PE-11000) $ 1,763,304 Turner Construction, $ 118,250 Amendment No.2 Total: $ 1,881,554 Grand Total $33,076,750 Assuming all of these contract dollars are spent, it is expected that $21.1 million in proceeds will be available after work described in this report is completed. CMR:334:10 Page 7 0[9 Costs for a temporary Main Library can be covered by bond funds and, because of the low bids that have been received; there is sufficient financial flexibility to build temporary Main Library quarters. A new CIP would be established for this project ifit moves forward. After projects in the first phase of construction and planning are completed, any remaining funds from the first bond issue can and will be used for the Main library proj ect. Depending upon the amount of available funds and the estimated construction costs for Main, a second bond issue will likely be needed. For details on the bond issuance and the applicable tax rates and assessments for 2011, see the Discussion section in CMR 337:10, on Council's August 2 agenda. Once the second series of bonds is issued for Main Library work (estimated to begin in Winter 2012), property owners will see a second increase in their property taxes. This increase is dependent upon the amount of bonds required for the second issue and the prevailing interest rate at the time of the bond sale. The funding for the contract with artist Roger Stoller will not come from Measure N bond proceeds but from Public Art Commission funds previously appropriated in the City's Capital Improvement program. POLICY IMPLICATIONS Approval of these contracts is consistent with Council's previous direction on the library proj ects and will further the projects identified in Measure N. It does not represent a change in City policy. TIMELINE The existing MPLCC has been closed and its staff, books, and equipment have been relocated to the Cubberly Community Center. Construction on the new MPLCC library and community center is expected to begin in September and be complete in approximately September 2012. This timeline includes the installation of furniture and equipment and the relocation of Technical Services staff now located at the temporary library at the Cubberly Community Center. Design work for the Main Library will begin in the fall of2010. The design period is expected to last for one year. Construction on the Main Library is anticipated to start in the winter of 2012. Identification of an appropriate location for a temporary Main Library will begin in the fall of 2010. If a location is identified, preliminary design will be developed so that the estimated cost and location can be presented to Council before proceeding with more detailed design. ENVIRONMENTAL REVIEW On July 21, 2008, the Council confirmed the Director of Planning and Community Environment's approvals of a Mitigated Negative Declaration for the MPLCC and a 2007 Addendum to the 2002 final Environmental Impact Report for the Main Library. CMR:334:10 Page 80f9 ATTACHMENTS Attachment A: Construction Contract, Cll136473 Attachment B: Contract Amendment No.3, Group 4 Architecture, Research + Planning Attachment C: Contract Amendment No.2, Turner Construction Attachment D: Bid Summary Attachment E: Contract with Stoller Studios, Inc. Attachment F: Renderings of "Radiant Seed" public art p7/' ____ ------- PREPARED BY: L~ DEP ARTMENT HEAD: CITY MANAGER APPROVAL: CMR:334:1O KAREN BENGARD Senior Engineer ~A.8J± GLENN S. ROBERTS Director of Public Works ~~ -.Gte JEs KEENE 1 ~ City Manager Page 9 of9 ATTACHMENT A •. ~ PALO ALTO CONSTRUCTION CONTRACT Contract No. C11136473 City of Palo Alto and Flintco, Inc. PROJECT: Mitchell Park Library and Community Center Project ~ev. February 1, 2010 SECTION 1. CONSTRUCTION CONTRACT TABLE OF CONTENTS INCORPORATION OF RECITALS AND DEFINITIONS ..........................•.......•. 1 1.1 Recitals ................................................................................................................................ 1 1.2 Definitions ........................................................................................................................... 1 SECTION 2. THE PROJECT ............................................••............................•.....•........•.......•. 1 SECTION 3. THE CONTRACT DOCUMENTS ................•....................................................•. 1 LIST OF DOCUMENTS ........................•....................•...............•.•..............•..•........•.....................•... 1 3.2 ORDER OF PRECEDENCE ........................•..................................................•... 2 SECTION 4. THE WORK ..................................................•................................................•.... 2 SECTION 5. PROJECT TEAM ........................................•.•..................................................... 2 SECTION 6. TIME OF COMPLETION ......................•......•....................................................•. 3 6.1 Time Is of Essence ............................................................................................................. 3 6.2 Commencement of Work ................................................................................................... 3 6.3 Contract Time ..................................................................................................................... 3 6.4 Liquidated Damages .......................................................................................................... 3 6.4.1 Entitlement. .................................................................................................................. 3 6.4.2 Daily Amount ............................................................................................................... 3 6.4.3 Exclusive Remedy ....................................................................................................... 3 6.4.4 Other Remedies ........................................................................................................... 3 6.5 Adjustments to Contract Time .......................................................................................... 3 SECTION 7. COMPENSATION TO CONTRACTOR •......•...................................................••• 4 7.1 Contract Sum ...................................................................................................................... 4 7.2 Full Compensation ............................................................................................................. 4 7.3 Compensation for Extra or Deleted Work ........................................................................ 4 7.3.1 Self Performed Work ................................................................................................... 4 7.3.2 Subcontractors ............................................................................................................ 4 Rev. February 1,2010 Contract C11136473 Flintco Inc.doc SECTION 8. STANDARD OF CARE ....................................................................................... 4 SECTION 9. INDEMNIFiCATION ............................................................................................ 5 9.1 Hold Harmless .................................................................................................................... 5 9.2 Survival ..... ' .......................................................................................................................... 5 SECTION 10 NONDISCRIMINATION ...................................................................................... 5 SECTION 11. INSURANCE AND BONDS ....................................................•........................... 5 SECTION 12. PROHIBITION AGAINST TRANSFERS ............................................................ 5 SECTION 13. NOTiCES ............................................................................................................ 6 13.1 Method of Notice ................................................................................................................ 6 13.2 Notice Recipients ............................................................................................................... 6 13.3 Change of Address ......................................................•..................................................... 7 14.1 Resolution of Contract Disputes ...................................................................................... 7 14.2 Resolution of Other Disputes ........................................................................................... 7 14.2.1 Non-Contract·Disputes ................................................................................................ 7 14.2.2 Litigation, City Election ................................................................................................. 7 14.3 Submission of Contract Dispute ...................................................................................... 8 14.3.1 By Contractor ....................................... ~ ....................................................................... 8 14.3.2 By City .......................................................................................................................... 8 14.4 Contract Dispute Resolution Process .............................................................................. 8 14.4.1 Direct Negotiations ...................................................................................................... 8 14.4.2 Deferral of Contract Disputes ...................................................................................... 9 14.4.3 Mediation ..................................................................................................................... 9 14.4.4 Binding Arbitration ....................................................................................................... 9 14.5 Non-Waiver ....................................................................................................................... 10 SECTION 15. DEFAULT ......................................................................................................... 11 15.1 Notice of Default ............................................................................................................... 11 15.2 Opportunity to Cure Default ............................................................................................ 11 SECTION 16. CITY'S RIGHTS AND REMEDIES ................................................................... 11 16.1 Remedies Upon Default ................................................................................................... 11 16.1 .1 Delete Certain Services ............................................................................................. 11 16.1 .2 Perform and Withhold ................................................................................................ 11 ii Rev. February 1, 2010 Contract C111364 73 Flintco Inc.doc 16.1.3 16.1.4 16.1.5 16.1.6 Suspend The Construction Contract ......................................................................... 11 Terminate the Construction Contract for Default... .................................................... 11 Invoke the Performance Bond ................................................................................... 11 Additional Provisions ................................................................................................. 12 16.2 Delays by Sureties ........................................................................................................... 12 16.3 Damages to City ............................................................................................................... 12 16.3.1 For Contractor's Default ............................................................................................ 12 16.3.2 Compensation for Losses .......................................................................................... 12 16.5 Suspension by City for Convenience ............................................................................. 12 16.6 Termination Without Cause ............................................................................................ 13 16.6.1 Compensation ........................................................................................................... 13 16.6.2 Subcontractors .......................................................................................................... 13 16.7 Contractor's Duties Upon Termination .......................................................................... 13 SECTION 17. CONTRACTOR'S RIGHTS AND REMEDIES .................................................. 14 17.1 Contractor's Remedies .................................................................................................... 14 17.1.1 For Work Stoppage ................................................................................................... 14 17.1 .2. For City's Non-Payment. ............................................................................................ 14 17.2 Damages to Contractor ................................................................................................... 14 SECTION 18. ACCOUNTING RECORDS ............................................................................... 14 18.1 Financial Management and City Access ........................................................................ 14 18.2 Compliance with City Requests ...................................................................................... 14 SECTION 19. INDEPENDENT PARTIES ................................................................................ 14 SECTION 20. NUISANCE ....................................................................................................... 15 SECTION 21. PERMITS AND LICENSES .............................................................................. 15 SECTION 22. WAiVER ............................................................................................................ 15 SECTION 23 GOVERNING LAW ........................................................................................... 15 SECTION 24 COMPLETE AGREEMENT .................•............................................................ 15 SECTION 25 SURVIVAL OF CONTRACT ............................................................................. 15 SECTION 26 PREVAILING WAGES ...................................................................................... 15 iii Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc SECTION 27 SECTION 28 SECTION 29 SECTION 30 NON APPROPRIATION ................................................................................... 16 GOVERNMENTAL POWERS .......................................................................... 16 ATTORNEY FEES ............................................................................................ 16 SEVERABILITY ................................................................................................ 16 iv Rev. February 1,2010 Contract C11136473 Flintco Inc.doc CONSTRUCTION CONTRACT THIS CONSTRUCTION CONTRACT entered into on ("Execution Date") by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and Flintco, Inc. ("Contractor"), is made with reference to the following: RE C IT ALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Contractor is a corporation duly organized and in good standing in the State of Oklahoma, Contractor's License Number 702469. Contractor represents that it is duly licensed by the State of California and has the background, knowledge, experience and expertise to perform the obligations set forth in this Construction Contract. C. On June 4,2010, City issued an Invitation for Bids (IFB) to contractors for the Mitchell Park Library and Community Center Project ("Projecf'). In response to the IFB, Contractor submitted a bid. D. City and Contractor desire to enter into this Construction Contract for the Project, and other services as identified in the Bid Documents for the Project upon the following terms and conditions. NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed by and between the undersigned parties as follows: SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS. 1.1 Recitals. All of the recitals are incorporated herein by reference. 1.2 Definitions. Capitalized terms shall have the meanings set forth in this Construction Contract and/or in the General Conditions. If there is a conflict between the definitions in this Construction Contract and in the General Conditions, the definitions in this Construction Contract shall prevail. SECTION 2 THE PROJECT. The Project is the construction of the Mitchell Park Library and Community Center Project ("Project"). SECTION 3 THE CONTRACT DOCUMENTS. 3.1 List of Documents. The Contract Documents (sometimes collectively referred to as "Agreement" or "Bid Documents") consist of the following documents which are on file with the Purchasing Division and are hereby incorporated by reference. 1) Change Orders 2) Field Change Orders 3) Contract 4) Project Plans and Drawings Rev. February 1,2010 Contract C111364 73 Flintco Inc.doc 5) Technical Specifications 6) Special Provisions 7) Notice Inviting Bids 8) Instructions to Bidders 9) General Conditions 10) Bidding Addenda 11) Invitation for Bids 12) Contractor's Bid/Non-Collusion Affidavit 13) Reports listed in the Bidding Documents 14) Public Works Department's Standard Drawings and Specifications dated 2007 and updated from time to time 15) Utilities Department's Water, Gas, Wastewater, Electric Utilities Standards dated 2005 and updated from time to time 16) City of Palo Alto Traffic Control Requirements 17) City of Palo Alto Truck Route Map and Regulations 18) Notice Inviting Pre-Qualification Statements, Pre-Qualification Statement, and Pre- Qualification Checklist (if applicable) 19) Performance and Payment Bonds 20) Insurance Forms 3.2 Order of Precedence. For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this Contract, the Contract Documents shall have the order of precedence as set forth in the preceding section. If a claimed inconsistency cannot be resolved through the order of precedence, the City shall have the sole power to decide which document or provision shall govern as may be in the best interests of the City. SECTION 4 THE WORK. The Work includes all labor, materials, equipment, services, permits, fees, licenses and taxes, and all other things necessary for Contractor to perform its obligations and complete the Project, including, without limitation, any Changes approved by City, in accordance with the Contract Documents and all Applicable Code Requirements. SECTION 5 PROJECT TEAM. In addition to Contractor, City has retained, or may retain, consultants and contractors to provide professional and technical consultation for the design and construction of the Project. The Project requires that Contractor operate efficiently, effectively and cooperatively with City as well as all other members of the Project Team and other contractors retained by City to construct other portions of the Project. 2 Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc SECTION 6 TIME OF COMPLETION. 6.1 Time Is of Essence. Time is of the essence with respect to all time limits set forth in the Contract Documents. 6.2 Commencement of Work. Contractor shall commence the Work on the date specified in City's Notice to Proceed. 6.3 Contract Time. Work hereunder shall begin on the date specified on the City's Notice to Proceed and shall be completed o not later than [gJ within six hundred calendar days (600) after the commencement date specified in City's Notice to Proceed. 6.4 Liquidated Damages. 6.4.1 Entitlement. City and Contractor acknowledge and agree that if Contractor fails to fully and satisfactorily complete the Work within the Contract Time, City will suffer, as a result of Contractor's failure, substantial damages which are both extremely difficult and impracticable to ascertain. Such damages may include, but are not limited to: (i) Loss of public confidence in City and its contractors and consultants. (ii) Loss of public use of public facilities. (iii) Extended disruption to public. 6.4.2 Daily Amount. City and Contractor have reasonably endeavored, but failed, to ascertain the actual damage that City will incur if Contractor fails to achieve Substantial Completion of the entire Work within the Contract Time. Therefore, the parties agree that in addition to all other damages to which City may be entitled other than delay damages, in the event Contractor shall fail to achieve Substantial Completion of the entire Work within the Contract Time, Contractor shall pay City as liquidated damages the amount of $2,500.00 per each calendar day for each Day occurring after the expiration of the Contract Time until Contractor achieves Substantial Completion of the entire Work. The liquidated damages amount is not a penalty but considered to be a reasonable estimate of the amount of damages City will suffer by delay in completion of the Work. 6.4.3 Exclusive Remedy. City and Contractor acknowledge and agree that this liquidated damages provision shall be City's only remedy for delay damages caused by Contractor's failure to achieve Substantial Completion of the entire Work within the Contract Time. 6.4.4 Other Remedies. City is entitled to any and all available legal and equitable remedies City may have where City's Losses are caused by any reason other than Contractor's failure to achieve Substantial Completion of the entire Work within the Contract Time. 6.5 Adjustments to Contract Time. The Contract Time may only be adjusted for time extensions approved by City and agreed to by Change Order executed by City and Contractor in accordance with the requirements of the Contract Documents. 3 Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc SECTION 7 COMPENSATION TO CONTRACTOR. 7.1 Contract Sum. Contractor shall be compensated for satisfactory completion of the Work in compliance with the Contract Documents the Contract Sum of Twenty-four Million Three Hundred Sixty-five Thousand Dollars ($24,365,000.00). o [This amount includes the Base Bid and Add Alternates .J 7.2 Full Compensation. The Contract Sum shall be full compensation to Contractor for all Work provided by Contractor and, except as otherwise expressly permitted by the terms of the Contract Documents, shall cover all Losses arising out of the nature of the Work or from the acts of the elements or any unforeseen difficulties or obstructions which may arise or be encountered in performance of the Work until its Acceptance by City, all risks connected with the Work, and any and all expenses incurred due to suspension or discontinuance of the Work. The Contract Sum may only be adjusted for Change Orders issued, executed and satisfactorily performed in accordance with the requirements of the Contract Documents. 7.3 Compensation for Extra or Deleted Work. The Contract Sum shall be adjusted (either by addition or credit) for Changes in the Work involving Extra Work or Deleted Work based on one or more of the following methods to be selected by City: 1. Unit prices stated in the Contract Documents or agreed upon by City and Contractor, which unit prices shall be deemed to include Contractor Markup and Subcontractor/Sub-subcontractor Markups permitted by this Section. 2. A lump sum agreed upon by City and Contractor, based on the estimated Allowable Costs and Contractor Markup and Subcontractor Markup computed in accordance with this Section. 3. Contractor's Allowable Costs, plus Contractor Markup and Subcontractor Markups applicable to such Extra Work computed in accordance with this Section. Contractor Markup and Subcontractor/Sub-subcontractor Markups set forth herein are the full amount of compensation to be added for Extra Work or to be subtracted for Deleted Work that is attributable to overhead (direct and indirect) and profit of Contractor and of its Subcontractors and Sub-subcontractors, of every Tier. When using this payment methodology, Contractor Markup and Subcontractor/Sub-subcontractor Markups, which shall not be compounded, shall be computed as follows: 7.3.1 Markup Self-Performed Work. 10% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be performed by Contractor with its own forces. 7.3.2 Markup for Work Performed by Subcontractors. 15% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be performed by a first Tier Subcontractor. SECTION 8 STANDARD OF CARE. Contractor agrees that the Work shall be performed by qualified, experienced and well-supervised personnel. All services performed in connection with this Construction Contract shall be performed in a manner consistent with the standard of care under California law applicable to those who specialize in providing such services for projects of the type, scope and complexity of the Project. 4 Rev. February 1,2010 Contract C11136473 Flintco Inc.doc SECTION 9 INDEMNIFICATION. 9.1 Hold Harmless. To the fullest extent allowed by law, Contractor will defend, indemnify, and hold harmless City, its City Council, boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel acceptable to City, from and against any and all Losses arising directly or indirectly from, or in any manner relating to any of, the following: (i) Performance or nonperformance of the Work by Contractor or its Subcontractors or Sub-subcontractors, of any tier; (ii) Performance or nonperformance by Contractor or its Subcontractors or Sub- subcontractors of any tier, of any of the obligations under the Contract Documents; (iii) The construction activities of Contractor or its Subcontractors or Sub-subcontractors, of any tier, either on the Site or on other properties; (iv) The payment or nonpayment by Contractor to any of its employees, Subcontractors or Sub-subcontractors of any tier, for Work performed on or off the Site for the Project; and (v) Any personal injury, property damage or economic loss to third persons associated with the performance or nonperformance by Contractor or its Subcontractors or Sub- subcontractors of any tier, of the Work. However, nothing herein shall obligate Contractor to indemnify any Indemnitee for Losses resulting from the sole or active negligence or willful misconduct of the Indemnitee. Contractor shall pay City for any costs City incurs to enforce this provision. Nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee. 9.2 Survival. The provisions of Section 9 shall survive the termination of this Construction Contract. SECTION 10 NONDISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, Contractor certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. Contractor acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and will comply with all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. SECTION 11 INSURANCE AND BONDS. On or before the Execution Date, Contractor shall provide City with evidence that it has obtained insurance and Performance and Payment Bonds satisfying all requirements in Article 11 of the General Conditions. Failure to do so shall be deemed a material breach of this Construction Contract. SECTION 12 PROHIBITION AGAINST TRANSFERS. City is entering into this Construction Contract based upon the stated experience and qualifications of the Contractor and its subcontractors set forth in Contractor's Bid. Accordingly, Contractor shall not assign, hypothecate or transfer this Construction Contract or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any assignment, hypothecation or transfer without said consent shall be null and void. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor or of any general partner or joint venturer or syndicate member of Contractor, if the Contractor is a partnership or joint venture or syndicate or co-tenancy shall result in changing the 5 Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc control of Contractor, shall be construed as an assignment of this Construction Contract. Control means more than fifty percent (50%) of the voting power of the corporation or other entity. SECTION 13 NOTICES. 13.1 Method of Notice. All notices, demands, requests or approvals to be given under this Construction Contract shall be given in writing and shall be deemed served on the earlier of the following: (i) On the date delivered if delivered personally; (ii) On the third business day after the deposit thereof in the United States mail, postage prepaid, and addressed as hereinafter provided; (iii) On the date sent if sent by facsimile transmission; (iv) On the date sent if delivered by electronic mail; or (iv) On the date it is accepted or rejected if sent by certified mail. 13.2 Notice Recipients. All notices, demands or requests (including, without limitation, Claims) from Contractor to City shall include the Project name and the numb~r of this Construction Contract and shall be addressed to City at: To City: City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 Copy to:1:8] City of Palo Alto Public Works Adm inistration 250 Hamilton Avenue Palo Alto, CA 94301 Attn: Karen Bengard Or D City of Palo Alto Utilities Engineering 250 Hamilton Avenue Palo Alto, CA 94301 Attn: In addition, copies of all Claims by Contractor under this Construction Contract shall be provided to the following: Palo Alto City Attorney's Office 250 Hamilton Avenue P.O. Box 10250 Palo Alto, California 94303 All Claims shall be delivered personally or sent by certified mail. 6 Contract C11136473 Flintco Inc.doc Rev. February 1, 2010 All notices, demands, requests or approvals from City to Contractor shall be addressed to: Flintco, Inc. 400 Plaza Drive, Suite 205 Folsom, CA 95630 Attn: David P. Parkes 13.3 Change of Address. In the event of any change of address, the moving party shall notify the other party of the change of address in writing. Each party may, by written notice only, add, delete or replace any individuals to whom and addresses to which notice shall be provided. SECTION 14 DISPUTE RESOLUTION. 14.1 Resolution of Contract Disputes. Contract Disputes shall be resolved by the parties in accordance with the provisions of this Section 14, in lieu of any and all rights under the law that either party have its rights adjudged by a trial court or jury. All Contract Disputes shall be subject to the Contract Dispute Resolution Process set forth in this Section 14, which shall be the exclusive recourse of Contractor and City for such Contract Disputes. 14.2 Resolution of Other Disputes. 14.2.1 Non-Contract Disputes. Contract Disputes shall not include any of the following: (i) Penalties or forfeitures prescribed by statute or regulation imposed by a governmental agency; (ii) Third party tort claims for personal injury, property damage or death relating to any Work performed by Contractor or its Subcontractors or Sub- subcontractors of any tier; (iii) False claims liability under California GovernmenLCode Section 12650, et. seq.; (iv) Defects in the Work first discovered by City after Final Payment by City to Contractor; (v) Stop notices; or (vi) The right of City to specific performance or injunctive relief to compel performance of any provision of the Contract Documents. 14.2.2 Litigation, City Election. Matters that do not constitute Contract Disputes shall be resolved by way of an action filed in the Superior Court of the State of California, County of Santa Clara, and shall not be subject to the Contract Dispute Resolution Process. However, the City reserves the right, in its sole and absolute discretion, to treat such disputes as Contract Disputes. Upon written notice by City of its election as provided in the preceding sentence, such dispute shall be submitted by the parties and finally decided pursuant to the Contract Dispute Resolution Process in the manner as required for Contract Disputes, including, without limitation, City's right under Paragraph 14.4.2 to defer resolution and final determination until after Final Completion of the Work. 7 Rev. February 1,2010 Contract C11136473 Flintco Inc.doc 14.3 Submission of Contract Dispute. 14.3.1 By Contractor. Contractors may commence the Contract Dispute Resolution Process upon City's written response denying all or part of a Claim pursuant to Paragraph 4.2.9 or 4.2.1 0 of the General Conditions. Contractor shall submit a written Statement of Contract Dispute (as set forth below) to City within seven (7) Days after City rejects all or a portion of Contractor's Claim. Failure by Contractor to submit its Statement of Contract Dispute in a timely manner shall result in City's decision by City on the Claim becoming final and binding. Contractor's Statement of Contract Dispute shall be signed under penalty of perjury and shall state with specificity the events or circumstances giving rise to the Contract Dispute, the dates of their occurrence and the asserted effect on the Contract Sum and the Contract Time. The Statement of Contract Dispute shall include adequate supporting data to substantiate the disputed Claim. Adequate supporting data for a Contract Dispute relating to an adjustment of the Contract Time shall include both of the following: (i) All of the scheduling data required to be submitted by Contractor under the Contract Documents to obtain extensions of time and adjustments to the Contract Time and (ii) A detailed, event-by-event description of the impact of each event on completion of Work. Adequate data to support a Statement of Contract Dispute involving an adjustment of the Contract Sum must include both of the following: (a) A detailed cost breakdown and (b) Supporting cost data in such form and including such information and other supporting data as required under the Contract Documents for submission of Change Order Requests and Claims. 14.3.2 By City. City's right to commence the Contract Dispute Resolution Process shall arise at any time following City's actual discovery of the circumstances giving rise to the Contract Dispute. City asserts Contract Disputes in response to a Contract Dispute asserted by Contractor. A Statement of Contract Dispute submitted by City shall state the events or circumstances giving rise to the Contract Dispute, the dates of their occurrence and the damages or other relief claimed by City as a result of such events. 14.4 Contract Dispute Resolution Process. The parties shall utilize each of the following steps in the Contract Dispute Resolution Process in the sequence they appear below. Each party shall participate fully and in good faith in each step in the Contract Dispute Resolution Process, and good faith effort shall be a condition precedent to the right of each party to proceed to the next step in the process. 14.4.1 Direct Negotiations. Designated representatives of City and Contractor shall meet as soon as possible (but not later than ten (10) Days after receipt of the Statement of Contract Dispute) in a good faith effort to negotiate a resolution to the Contract Dispute. Each party shall be represented in such negotiations by an authorized representative with full knowledge of the details of the Claims or defenses being asserted by such party in the negotiations, and with full authority to resolve such Contract Dispute then and there, subject only to City's obligation to obtain administrative and/or City Council approval of any agreed settlement or resolution. If the Contract Dispute involves the assertion of a right or claim by a Subcontractor or Sub-subcontractor, of any tier, against Contractor that is in turn being asserted by Contractor against City (UPass- Through Claim"), then the Subcontractor or Sub-Subcontractor shall also have a 8 Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc representative attend the negotiations, with the same authority and knowledge as described above. Upon completion of the meeting, if the Contract Dispute is not resolved, the parties may either continue the negotiations or any party may declare negotiations ended. All discussions that occur during such negotiations and all documents prepared solely for the purpose of such negotiations shall be confidential and privileged pursuant to California Evidence Code Sections 1119 and 1152. 14.4.2 Deferral of Contract Disputes. Following the completion of the negotiations required by Paragraph 14.4.1, all unresolved Contract Disputes shall be deferred pending Final Completion of the Project, subject to City's right, in its sole and absolute discretion, to require that the Contract Dispute Resolution Process proceed prior to Final Completion. All Contract Disputes that have been deferred until Final Completion shall be consolidated within a reasonable time after Final Completion and thereafter pursued to resolution pursuant to this Contract Dispute Resolution Process. The parties can continue informal negotiations of Contract Disputes; provided, however, that such informal negotiations shall not be alter the provisions of the Agreement deferring final determination and resolution of unresolved Contract Disputes until after Final Completion. 14.4.3 Mediation. If the Contract Dispute remains unresolved after negotiations pursuant to Paragraph 14.4.1, the parties shall submit the Contract Dispute to non-binding mediation before a mutually acceptable third party mediator. .1 Qualifications of Mediator. The parties shall endeavor to select a mediator who is a retired judge or an attorney with at least five (5) years of experience in public works construction contract law and in mediating public works construction disputes. In addition, the mediator shall have at least twenty (20) hours of formal training in mediation skills . . 2 Submission to Mediation and Selection of Mediator. The party initiating mediation of a Contract Dispute shall provide written notice to the other party of its decision to mediate. In the event the parties are unable to agree upon a mediator within fifteen (15) Days after the receipt of such written notice, then the parties shall submit the matter to the American Arbitration Association (AAA) at its San Francisco Regional Office for selection of a mediator in accordance with the AAA Construction Industry Mediation Rules . . 3 Mediation Process. The location of the mediation shall be at the offices of City. The costs of mediation shall be shared equally by both parties. The mediator shall provide an independent assessment on the merits of the Contract Dispute and recommendations for resolution. All discussions that occur during the mediation and all documents prepared solely for the purpose of the mediation shall be confidential and privileged pursuant to California Evidence Code Sections 1119 and 1152. 14.4.4 Binding Arbitration. If the Contract Dispute is not resolved by mediation, then any party may submit the Contract Dispute for final and binding arbitration pursuant to the provisions of California Public Contract Code Sections 10240, et seq. The award of the arbitrator therein shall be final and may be entered as a judgment by any court of competent jurisdiction. Such arbitration shall be conducted in accordance with the following: .1 Arbitration Initiation. The arbitration shall be initiated by filing a complaint in arbitration in accordance with the regulations promulgated pursuant to California Public Contract Code Section 10240.5. 9 Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc .2 Qualifications of the Arbitrator. The arbitrator shall be approved by all parties. The arbitrator shall be a retired judge or an attorney with at least five (5) years of experience in public works construction contract law and in arbitrating public works construction disputes. In addition, the arbitrator shall have at least twenty (20) hours of formal training in arbitration skills. In the event the parties cannot agree upon an arbitrator, the provisions of California Public Contract Code Section 10240.3 shall be followed in selecting an arbitrator possessing the qualifications required herein . . 3 Hearing Days and Location. Arbitration hearings shall be held at the offices of City and shall, except for good cause shown to and determined by the arbitrator, be conducted on consecutive business days, without interruption or continuance . . 4 Hearing Delays. Arbitration hearings shall not be delayed except upon good cause shown . . 5 Recording Hearings. All hearings to receive evidence shall be recorded by a certified stenographic reporter, with the costs thereof borne equally by City and Contractor and allocated by the arbitrator in the final award . . 6 Limitation of Depositions. The parties may conduct discovery in accordance with the provisions of section 10240.11 of the Public Contract Code; provided, however, that depositions shall be limited to both of the following: (i) Ten (10) percipient witnesses for each party and 5 expert witnesses per party. Upon a showing of good cause, the arbitrator may increase the number of permitted depositions. An individual who is both percipient and expert shall, for purposes of applying the foregoing numerical limitation only, be deemed an expert. Expert reports shall be exchanged prior to receipt of evidence, in accordance with the direction of the arbitrator, and expert reports (including initial and rebuttal reports) not so submitted shall not be admissible as evidence . . 7 Authority of the Arbitrator. The arbitrator shall have the authority to hear dispositive motions and issue interim orders and interim or executory awards . . 8 Waiver of Jury Trial. Contractor and City each voluntarily waives its right to a jury trial with respect to any Contract Dispute that is subject to binding arbitration in accordance with the provisions of this Paragraph 14.4.4. Contractor shall include this provision in its contracts with its Subcontractors who provide any portion of the Work. 14.5 Non-Waiver. Participation in the Contract Dispute Resolution Process shall not waive, release or compromise any defense of City, including, without limitation, any defense based on the assertion that the rights or Claims of Contractor that are the basis of a Contract Dispute were previously waived by Contractor due to Contractor's failure to comply with the Contract Documents, including, without limitation, Contractor's failure to comply with any time periods for providing notice of requests for adjustments of the Contract Sum or Contract Time or for submission of Claims or supporting documentation of Claims. 10 Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc SECTION 15 DEFAULT. 15.1 Notice of Default. In the event that City determines, in its sole discretion, that Contractor has failed or refused to perform any of the obligations set forth in the Contract Documents, or is in breach of any provision of the Contract Documents, City may give written notice of default to Contractor in the manner specified for the giving of notices in the Construction Contract. 15.2 Opportunity to Cure Default. Except for emergencies, Contractor shall cure any default in performance of its obligations under the Contract Documents within two (2) Days (or such shorter time as City may reasonably require) after receipt of written notice. However, if the breach cannot be reasonably cured within such time, Contractor will commence to cure the breach within two (2) Days (or such shorter time as City may reasonably require) and will diligently and continuously prosecute such cure to completion within a reasonable time, which shall in no event be later than ten (10) Days after receipt of such written notice. SECTION 16 CITY'S RIGHTS AND REMEDIES. 16.1 Remedies Upon Default. If Contractor fails to cure any default of this Construction Contract within the time period set forth above in Section 15, then City may pursue any remedies available under law or equity, including, without limitation, the following: 16.1.1 Delete Certain Services. City may, without terminating the Construction Contract, delete certain portions of the Work, reserving to itself all rights to Losses related thereto. 16.1.2 Perform and Withhold. City may, without terminating the Construction Contract, engage others to perform the Work or portion of the Work that has not been adequately performed by Contractor and withhold the cost thereof to City from future payments to Contractor, reserving to itself all rights to Losses related thereto. 16.1.3 Suspend The Construction Contract. City may, without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, suspend all or any portion of this Construction Contract for as long a period of time as City determines, in its sole discretion, appropriate, in which event City shall have no obligation to adjust the Contract Sum or Contract Time, and shall have no liability to Contractor for damages if City directs Contractor to resume Work. 16.1.4 Terminate the Construction Contract for Default. City shall have the right to terminate this Construction Contract, in whole or in part, upon the failure of Contractor to promptly cure any default as required by Section 15. City's election to terminate the Construction Contract for default shall be communicated by giving Contractor a written notice of termination in the manner specified for the giving of notices in the Construction Contract. Any notice of termination given to Contractor by City shall be effective immediately, unless otherwise provided therein. 16.1.5 Invoke the Performance Bond. City may, with or without terminating the Construction Contract and reserving to itself all rights to Losses related thereto, exercise its rights under the Performance Bond. 11 Rev. February 1,2010 Contract C11136473 Flintco Inc.doc 16.1.6 Additional Provisions. All of City's rights and remedies under this Construction Contract are cumulative, and shall be in addition to those rights and remedies available in law or in equity. Designation in the Contract Documents of certain breaches as material shall not waive the City's authority to designate other breaches as material nor limit City's right to terminate the Construction Contract, or prevent the City from terminating the Agreement for breaches that are not material. City's determination of whether there has been noncompliance with the Construction Contract so as to warrant exercise by City of its rights and remedies for default under the Construction Contract, shall be binding on all parties. No termination or action taken by City after such termination shall prejudice any other rights or remedies of City provided by law or equity or by the Contract Documents upon such termination; and City may proceed against Contractor to recover all liquidated damages and Losses suffered by City. 16.2 Delays by Sureties. Without limiting to any of City's other rights or remedies, City has the right to suspend the performance of the Work by Contractor's sureties in the event of any of the following: (i) The sureties' failure to begin Work within a reasonable time in such manner as to insure full compliance with the Construction Contract within the Contract Time; (ii) The sureties' abandonment of the Work; (iii) If at any time City is of the opinion the sureties' Work is unnecessarily or unreasonably delaying the Work; (iv) The sureties' violation of any terms of the Construction Contract; (v) The sureties' failure to perform according to the Contract Documents; or (vi) The sureties' failure to follow City's instructions for completion of the Work within the Contract Time. 16.3 Damages to City. 16.3.1 For Contractor's Default. City will be entitled to recovery of all Losses under law or equity in the event of Contractor's default under the Contract Documents. 16.3.2 Compensation for Losses. In the event that City's Losses arise from Contractor's default under the Contract Documents, City shall be entitled to withhold monies otherwise payable to Contractor until Final Completion of the Project. If City incurs Losses due to Contractor's default, then the amount of Losses shall be deducted from the amounts withheld. Should the amount withheld exceed the amount deducted, the balance will be paid to Contractor or its designee upon Final Completion of the Project. If the Losses incurred by City exceed the amount withheld, Contractor shall be liable to City for the difference and shall promptly remit same to City. 16.4 Suspension by City for Convenience. City may, at any time and from time to time, without cause,order Contractor, in writing, to suspend, delay, or interrupt the Work in whole or in part for such period of time, up to an aggregate of fifty percent (50%) of the Contract Time. The order shall be specifically identified as a Suspension Order by City. Upon receipt of a Suspension Order, Contractor shall, at City's expense, comply with the order and take all reasonable steps to minimize costs allocable to the Work covered by the Suspension Order. During the Suspension or extension of the Suspension, if any, City shall either cancel the Suspension Order or, by Change Order, delete the Work covered by the Suspension Order. If a Suspension Order is canceled or expires, Contractor shall resume and continue with the Work. A Change Order will be issued to cover any adjustments of the Contract Sum or the Contract Time necessarily caused by such suspension. A Suspension Order shall not be the exclusive method for City to stop the Work. 12 Rev. February 1. 2010 Contract C111364 73 Flintco Inc.doc 16.5 Termination Without Cause. City may, at its sole discretion and without cause, terminate this Construction Contract in part or in whole by giving thirty (30) Days written notice to Contractor. The compensation allowed under this Paragraph 16.5 shall be the Contractor's sole and exclusive compensation for such termination and Contractor waives any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect or incidental damages of any kind resulting from termination without cause. 16.5.1 Compensation. Following such termination and within forty-five (45) Days after receipt of a billing from Contractor seeking payment of sums authorized by this Paragraph 16.5, City shall pay the following to Contractor as Contractor's sole compensation for performance of the Work: .1 For Work Performed. The amount of the Contract Sum allocable to the portion of the Work properly performed by Contractor as of the date of termination, less sums previously paid to Contractor . . 2 For Close-out Costs. Reasonable costs of Contractor and its Subcontractors and Sub-subcontractors for: (i) Demobilizing and (ii) Administering the close-out of its participation in the Project (including, without limitation, all billing and accounting functions, not including attorney or expert fees) for a period of no longer than thirty (30) Days after receipt of the notice of termination . . 3 For Fabricated Items. Previously unpaid cost of any items delivered to the Project Site which were fabricated for subsequent incorporation in the Work. 16.5.2 Subcontractors. Contractor shall include provisions in all of its subcontracts, purchase orders and other contracts permitting termination for convenience by Contractor on terms that are consistent with this Construction Contract and that afford no greater rights of recovery against Contractor than are afforded to Contractor against City under this Section. 16.6 Contractor's Duties Upon Termination. Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless the notice directs otherwise, do the following: (i) Immediately discontinue the Work to the extent specified in the notice; (ii) Place no further orders or subcontracts for materials, equipment, services or facilities, except as may be necessary for completion of such portion of the Work that is not discontinued; (iii) Provide to City a description, in writing no later than fifteen (15) days after receipt of the notice of termination, of all subcontracts, purchase orders and contracts that are outstanding, including, without limitation, the terms of the original price, any changes, payments, balance owing, the status of the portion of the Work covered and a copy of the subcontract, purchase order or contract and any written changes, amendments or modifications thereto, together with such other information as City may determine necessary in order to decide whether to accept assignment of or request Contractor to terminate the subcontract, purchase order or contract; (iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions thereof, that City elects to accept by assignment and cancel, on the most favorable terms reasonably possible, all subcontracts, purchase orders or contracts, or portions thereof, that City does not elect to accept by assignment; and (v) Thereafter do only such Work as may be necessary to preserve and protect Work already in progress and to protect materials, plants, and equipment on the Project Site or in transit thereto. 13 Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc SECTION 17 CONTRACTOR'S RIGHTS AND REMEDIES. 17.1 Contractor's Remedies. Contractor may terminate this Construction Contract only upon the occurrence of one of the following: 17.1.1 For Work Stoppage. The Work is stopped for sixty (60) consecutive Days, through no act or fault of Contractor, any Subcontractor, or any employee or agent of Contractor or any Subcontractor, due to issuance of an order of a court or other public authority other than City having jurisdiction or due to an act of government, such as a declaration of a national,emergency making material unavailable. This provision shall not apply to any work stoppage resulting from the City's issuance of a suspension notice issued either for cause or for convenience. 17.1.2 For City's Non-Payment. If City does not make pay Contractor undisputed sums within ninety (90) Days after receipt of notice from Contractor, Contractor may terminate the Construction Contract (30) days following a second notice to City of Contractor's intention to terminate the Construction Contract. 17.2 Damages to Contractor. In the event of termination for cause by Contractor, City shall pay Contractor the sums provided for in Paragraph 16.5.1 above. Contractor agrees to accept such sums as its sole and exclusive compensation and agrees to waive any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect and incidental damages, of any kind. SECTION 18 ACCOUNTING RECORDS. 18.1 Financial Management and City Access. Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Construction Contract in accordance with generally accepted accounting principles and practices. City and City's accountants during normal business hours, may inspect, audit and copy Contractor's records, books, estimates, take-ofts, cost reports, ledgers, schedules, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project. Contractor shall retain these documents for a period of three (3) years after the later of (i) final payment or (ii) final resolution of all Contract Disputes and other disputes, or (iii) for such longer period as may be required by law. 18.2 Compliance with City Requests. Contractor's compliance with any request by City pursuant to this Section 18 shall be a condition precedent to filing or maintenance of any legal action or proceeding by Contractor against City and to Contractor's right to receive further payments under the Contract Documents. City many enforce Contractor's obligation to provide access to City of its business and other records referred to in Section 18.1 for inspection or copying by issuance of a writ· or a provisional or permanent mandatory injunction by a court of competent jurisdiction based on affidavits submitted to such court, without the necessity of oral testimony. SECTION 19 INDEPENDENT PARTIES. Each party is acting in its independent capacity and not as agents, employees, partners, or joint venturers of the other party. City, its officers or employees shall have no control over the conduct of Contractor or its respective agents, employees, subconsultants, or subcontractors, except as herein set forth. 14 Rev. February 1,2010 Contract C11136473 Flintco Inc.doc SECTION 20 NUISANCE. Contractor shall not maintain, commit, nor permit the maintenance or commission of any nuisance in connection in the performance of services under this Construction Contract. SECTION 21 PERMITS AND LICENSES. Except as otherwise provided in the Special Provisions and Technical Specifications, The Contractor shall provide, procure and pay for all licenses, permits, and fees, required by the City or other government jurisdictions or agencies necessary to carry out and complete the Work. Payment of all costs and expenses for such licenses, permits, and fees shall be included in one or more Bid items. No other compensation shall be paid to the Contractor for these items or for delays caused by non-City inspectors or conditions set forth in the licenses or permits issued by other agencies. SECTION 22 WAIVER. A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. SECTION 23 GOVERNING LAW. This Construction Contract shall be construed in accordance with and governed by the laws of the State of California. SECTION 24 COMPLETE AGREEMENT. This Agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This Agreement may be amended only by a written instrument, which is signed by the parties. SECTION 25 SURVIVAL OF CONTRACT. The provisions of the Construction Contract which by their nature survive termination of the Construction Contract or Final Completion, including, without limitation, all warranties, indemnities, payment obligations, and City's right to audit Contractor's books and records, shall remain in full force and effect after Final Completion or any termination of the Construction Contract. SECTION 26 PREVAILING WAGES. [8J This Project is not subject to prevailing wages. The Contractor is not required to pay prevailing wages in the performance and implementation of the Project, because the City, pursuant to its authority as a chartered city, has adopted Resolution No. 5981 exempting the City from prevailing wages. The City invokes the exemption from the state prevailing wage requirement for this Project and declares that the Project is funded one hundred percent (100%) by the City of Palo Alto. Or D The Contractor is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the California Code of Regulations and Section 16000 et seg. and Section 1773.1 of the California Labor Code. Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute the contract for this Project from the Director of the Department of Industrial Relations. Copies of these rates may be obtained at cost at the Purchasing office of the City of Palo Alto. Contractor shall provide a copy of prevailing wage rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum. Contractor shall comply with the provisions of Sections 1775, 1776, 15 Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc 1777.5,1810, and 1813 of the Labor Code. SECTION 27 NON APPROPRIATION. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that the City does not appropriate funds for the following fiscal year for this event, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Construction Contract are no longer available. This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. SECTION 28 AUTHORITY. The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. SECTION 29 ATTORNEY FEES. Each Party shall bear its own costs, including attorney's fees through the completion of mediation. If the claim or dispute is not resolved through mediation and in any dispute described in Paragraph 14.2, the prevailing party in any action brought to enforce the provision of this Agreement may recover its reasonable costs and attorney's fees expended in connection with that action. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by it as well as any attorney's' fees paid to third parties. SECTION 30 SEVERABILITY. In case a provision of this Construction Contract is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected. IN WITNESS WHEREOF, the parties have caused this Construction Contract to be executed the date and year first above written. 16 Rev. February 1, 2010 Contract C11136473 Flintco Inc.doc CITY OF PALO ALTO D Purchasing Manager IZI City Manager APPROVED AS TO FORM: Senior Asst. City Attorney APPROVED: Public Works Director Contract C11136473 Flintco Inc.doc CONTRACTOR: FLiNTCO, INC. By:_· ___________ _ Name: ___________ _ Title: ____________ _ 17 Rev. February 1, 2010 ATTACHMENT B CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE AMENDMENT NO. 3 TO CONTRACT NO. C09130744 BETWEEN THE CITY OF PALO ALTO AND GROUP 4 ARCHITECTURE, RESEARCH + PLANNING, INC. This Amendment No. 3 to contract No. C09130744 ("Contract") is entered into 2010, by and between the CITY OF PALO ALTO, a California Charter City ("CITY"), and Group 4 Architecture, Research + Planning, Inc., a corporation in the state of California with offices located at 211 Linden Avenue, South San Francisco, CA 94080 ("CONSULTANT"). R E CIT A L S: WHEREAS, the Contract was entered into between the parties for the provision of professional consulting design services relating to the demolition of the existing library and community center at Mitchell Park and the construction of a new joint library and community center, rehabilitation of the Downtown Library, renovation and addition to the Main Library, and to provide temporary facilities during the construction of the other projects ("Project"); and WHEREAS, increase the scope compensation; the of parties wish to amend services, schedule of the Contract performance, to and NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Amendment, the parties agree: SECTION 1. Section I, SCOPE OF SERVICES, is hereby amended to add the following: "CONSULTANT shall perform the Services described in Exhibit "A", as revised in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY." ' SECTION 2. Section 3, SCHEDULE OF PERFORMANCE, first paragraph is hereby amended to add the following: "Time is of the essence in the performance of services. CONSULTANT shall complete the Services within the term of this Agreement and in accordance with the schedule set forth in Exhibit "B", as revised, attached to and made a part of this Agreement. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY's agreement to extend the term or the schedule for performance shall not preclude 1 S:ATT/USERS/OFFICE FORMS/City Approved Contracts 3/20/07 (REV) CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE recovery of damages for delay if the extension is required due to the fault of CONSULTANT" SECTION 3. Section 4, NOT TO EXCEED COMPENSATION, is hereby amended to read as follows: "The compensation to be paid to CONSULTANT for performance of the Services described in Exhibits "A", including both payment for professional services and reimbursable expenses, shall not exceed six million seven hundred seventy-one thousand six hundred six dollars ($6,771,606.00). In the event Additional Services are authorized, the total compensation for services and reimbursable expenses shall not exceed seven million four hundred twenty-three thousand seven hundred ten dollars ($7,423,710.00). The applicable rates and schedule of payments are set out in Exhibit "C" and "C- 1", as revised, which are attached to and made a part of this Agreement. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit "C" and Exhibit "C-1". CONSULTANT shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. Additional Services shall mean any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described in Exhibit "A"." SECTION 4. The following exhibit(s) to the Contract are hereby amended to read as set forth in the attachment(s) to this Amendment, which are incorporated in full by this reference: EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": SCOPE OF SERVICES SCHEDULED OF PERFORMANCE COMPENSATION 2 S:ATT/USERS/OFFICE FORMS/City Approved Contracts 3/20/07 (REV) CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE SECTION 5. Except as herein modified, all other provisions of the Contract, including any exhibits and subsequent amendments thereto, shall remain in full force and effect. IN WITNESS WHEREOF, the parties have by their duly autho;r:-ized representatives executed this Amendment on the date first above written. CITY OF PALO ALTO: City Manager APPROVED AS TO FORM: Sr. Deputy City Attorney 3 S,ATT/USERS/OFFICE FORMS/City Approved Contracts CONSULTANT: GROUP 4 ARCB:rTEC~, lmSBARCB + PLANNING, ::INC. BY:~awxL~ Name: PAWN £-I N Er<./<E0 Ti tIe: ;Jf!-t;.5j tJeN J 3/20/07 (REV) CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A Scope of Work Mitchell Park Library/Community Center, Renovation of the Downtown Library, Renovation and Addition to the Main Library & Temporary Library Design Services I. INTRODUCTION AND GENERAL INFORMATION 1.0 GENERAL INFORMATION 1.1 The "Palo Alto Libraries Schematic Design Report" and drawings, dated May 2008, were prepared by Group 4 Architecture, Research + Planning Inc. (CONSULTANT) for the City of Palo Alto (CITY). These reports include the schematic design documents for three libraries in Palo Alto: the renovation of the Downtown Library, the renovation and addition to the Main Library and the design for the new Mitchell Park Library/Community Center. The building programs for these projects are documented in an earlier Conceptual Design Report also prepared by Group 4 and dated October 2007. The scope of work included in this contract is for preparation of construction documents for the renovation, construction administration, record documents and project closeout for the Downtown Library; the preparation of construction documents, bidding and award, construction administration, record documents and project closeout for the new Mitchell Park Library/Community Center; construction documents for the renovation and construction administration for the Mitchell Park Library Temporary Library Facilities, ; the preparation of construction documents, bidding and award, for the renovation and addition to the Main Library and the preparation of the site analysis and preliminary design for the Temporary Main Library, this work is based on the approved designs for these projects documented in the aforementioned reports. 1.2 The CONSULTANT's Basic Services shall include: 1.2.1 For the new Mitchell Park Library/Community Center preparation of Design Development Documents, Construction Documents, assistance with Bidding and Award, Construction Administration and Project Closeout Services .. 1.2.2 For the renovation of the Downtown Library programming, budgeting, space planning, Construction Documents, assistance with Bidding and Award, Construction Administration and Record Documents and Project Closeout Services. Page 1 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 1.2.3 For the renovation of the Cubberley Auditorium into the Mitchell Park Temporary Library Construction Documents and Construction Administration Services. 1.2.4 For the renovation and addition to the Main Library -preparation of Design Development Documents, Construction Documents, and assistance with Bidding and Award. 1.2.5 For the Temporary Main Library Site Analysis and Preliminary Design. 1.3 Participation for the projects shall include presentations and meetings as directed by the CITY to the CITY's Council, Boards and Commissions at appropriate phases in the projects to solicit feedback and comments on the progress of the design(s). 1.4 In selecting the CONSULTANT, the CITY recognizes that the CONSULTANT has qualifications to provide additional planning, architecture, and interior design services including construction phase services specifically related to the renovation and addition of the Main Library and the design documentation for the Temporary Main Library. The CITY, at its discretion, may choose to amend this contract to add these services to the CONSULTANT's Scope of Services for Additional Compensation if mutually agreed to by the CITY and the CONSULTANT. 2.0 THE PROJECT 2.1 The project includes the new Mitchell Park Library/Community center, the Downtown Library renovation, the Temporary Mitchell Park Library and Library Technical Services Facility, the Main Library renovation and new addition and the site analysis and preliminary design for the Temporary Main Library (collectively, the "Project"). 2.2 The new Mitchell Park Library/Community Center (the "Mitchell Park Project") is located at 3800 Middlefield Road at the site of the existing Mitchell Park Library and Community Center buildings. The new joint use facility will include a separate 36,254 sf library and a 16,291 sf community center, new parking lots, the realignment of Mayfair Avenue, and associated signal work, and site work. The Mitchell Park Project shall be designed to meet the standards for LEED Gold certification by the US Green Building Council (USGBC). 2.3 The Downtown Library is located at 270 Forest Avenue in downtown Palo Alto. The 9000 square foot building was constructed in 1971. The CITY's LSMAR and Group 4's space study recommendations for this branch include a major interior renovation of the building, including its Page 2 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A architecture, structure, electrical (power, lighting, data) and mechanical systems. The Downtown Library Project shall be designed to meet the standards for LEED certification by the US Green Building Council (USGBC). 2.4 The Temporary Mitchell Park Library and Technical Services facility is located at the Cubberley Community Center at 4000 Middlefield Road in the existing Auditorium Building. 2.5 The Main Library is located at 1213 Newell Road in Palo Alto. The original building was designed by Edward Durell Stone and constructed in 1956, then in 1982-84 the building was renovated and a 2,200 square foot addition completed. The project includes the renovation of the existing building structure, mechanical, electrical and interior finishes as well as additions to accommodate a new program room, group study rooms and new public restrooms. The new additions will add approximately 4,200 square feet. The existing Main Library is 21,313 square feet on grade with a 5,000 square foot basement. The Main Library Project shall be designed to meet the standards for LEED certification by the US Green Building Council (USGBC). 2.6 The Temporary Main Library will be located at a site yet to be determined by the CITY. The work includes site selection services, facility and site option analysis, building programming; budgeting and schematic design. 3.0 CITY DUTIES 3.1 During the term of CONSULTANT's professional services under this AGREEMENT the following items will be the responsibilities of the CITY: 3.1.1 The CITY's Project Manager or authorized designee shall manage the CONSULTANT's performance under the Agreement. CONSULTANT shall receive final direction only from the Project Manager or his or her authorized designee. The Project Manager shall resolve any conflicting direction from other groups, departments or agencies. 3.1.2 The CITY shall provide evaluation, mitigation design and administration of work for hazardous materials at each site and in the existing building. 3.1.3 The CITY shall provide reviews and comment on what may be necessary to complete design milestones, and/or approve completion of design milestones and cost estimates. At the completion of each phase, the CITY shall provide written authorization to the CONS UL T ANT to proceed to the next phase. Said written authorization shall require the signature(s) of Page 3 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A the CITY's Project Manager or his/her authorized designee. 3.1.4 CITY shall provide record drawings of existing project facilities (when available). 3.1.5 CITY shall provide all applicable building permits. 3.1.6 CITY shall provide Division 0 and 1 specifications (front-end), in Microsoft Word format to CONSULTANT for review and comment. 3.1.7 CITY shall print and provide construction contractors with copies of bid documents (Plans and Specifications). 3.1.8 CITY shall advertise and award construction contracts. 3.1.9 CITY shall manage the construction of the Project and provide building code and quality control inspections. 3.1.10 The CITY shall oversee and manage the artist selection process, CITY and artist agreements, artwork approvals, budgets and schedule, coordination of artwork with the building design, and artwork installation. 3.1.11 The CITY may prequalify general contractors and key subcontractors and limit bidding to only those firms that have been deemed by the CITY to be qualified. CITY shall actively market the project to general contractors and major trades to increase likelihood of receiving competitive bids. 3.1.12 The CITY shall manage all construction and procurement contracts related to the overall project and shall oversee and coordinate each of the budgets. Within the overall project budget the CITY shall determine with input from the CONSULTANT the specific budgets for each of the procurement contracts including, but not limited to: • Site development • Site preparation • Building and garage construction • Furniture procurement, including multiple contracts for custom, general, systems and miscellaneous furniture • Construction management services • Public art • Moving • Publicity Page 4 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A • Computer systems • Telecommunication systems. 3.1.13 CITY shall identify, select and procure all equipment such as copy machines, vending machines, miscellaneous office equipment, etc. that is not included in the technology package. 4.0 CONSULTANT'S DUTIES The CONSULTANT shall keep the Project Manager updated on the status of the Project including but not limited to reviewing the Project schedule and budget, suggesting changes and identifying significant milestones and duration of major tasks needed to complete the work in its entirety, including work components not identified in the CONS UL T ANT's scope of services. The CONS UL T ANT shall periodically update the Project Manager on the validity and responsiveness of the information furnished by the CONSULTANT and its various subconsultants under this agreement, including the schedule requirements and the budget for the cost of the Project. The CONSULTANT shall periodically review such information and advise the Project Manager of any additional or updated information that may be required. II. CONSUL TANT'S BASIC SERVICES The CONSULTANT's scope of basic services for the Project is divided into six parts: Basic Services for the Mitchell Park Project; Basic Services for the Downtown Library Project; Basic Services for the Temporary Mitchell Park Library Project, Basic Services for the Main Library; Basic Services for the Temporary Main Library and Participation Services 1.0 MITCHELL PARK PROJECT 1.1 GENERAL 1.1.1 The CONSU L TANT's Basic Services for the New Mitchell Park Library/Community Center ("Mitchell Park Project") consist of five Tasks: Task D1 Design Development; Task E1 Construction Documents; Task F1 Bidding and Award; Task G1 Construction Administration and Task H1 Record Documents and Project Closeout. 1.1.2 The CONS UL TANT's Basic Services include the services of a civil engineer, structural engineer, mechanical engineer, electrical engineer/lighting designer, landscape architect, cost consultant, audio visual/acoustical engineer, energy analysis Page 5 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A engineer, commissioning agent, and library programmer. 1.1.3 The CITY intends that the Mitchell Park Project shall be designed to meet the standards for LEED Gold or higher certification by the USGBC. 1.1.3.1 CONSULTANT shall design the Mitchell Park Project to meet the requirements for LEED V2.2 certification at the Gold or higher level. 1.1.3.2 CONSULTANT shall provide LEED project management services needed for the CITY to obtain LEED certification of the Mitchell Park Project, develop specifications consistent with LEED and the CITY's policies, and provide the templates, documentation, calculations, and energy modeling studies necessary to obtain LEED certification. 1.1.3.3 CONSULTANT shall include a LEED accredited professional on the design team to support Project Sustainable Building/ Green Building design criteria as required to achieve LEED certification. 1.1.3.4 CONS UL T ANT shall include in the construction documents appropriate provisions requiring the contractor to meet the requirements for CITY's submittal to USGBC for LEED Gold certification. 1.2 TASK D1: MITCHELL PARK PROJECT DESIGN DEVELOPMENT 1.2.1 CONSULTANT shall coordinate and manage its subconsultants throughout the Design Development phase and coordinate with the Project Manager or authorized designee, key departments, including but not limited to CITY's Building, Public Works, and Engineering staff. 1.2.2 CONSULTANT shall prepare, refine and update project design schedule which identifies all major tasks, key milestones, key meetings, submittal dates and review periods for the CITY's review and comment. CONSULTANT shall provide updated design schedule at the beginning of each project phase. 1.2.3 CONSULTANT shall prepare Design Development documents based on refinement and further development of the approved schematic design, including preliminary furniture layouts, built-in Page 6 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A fixtures, and equipment selections. 1.2.4 CONSULTANT shall refine design development plans based on comments received from the CITY's review of the 100% SD and 50% DD submittal. 1.2.5 CONSULTANT shall prepare estimates of probable construction cost for review by CITY in association with the 50% and the 100% Design Development submittals. 1.2.6 CONSULTANT shall have the Mitchell Park Project's LEED commissioning agent review the design, back-check review comments, and develop a commissioning plan, specifications, and checklists. 1.2.7 CONS UL T ANT shall meet with the CITY to review the estimate of probable construction cost and to confirm that the design is still within the CITY's approved construction budget. Should the design not be within the budget, CONSULTANT shall revise the design as directed by the Project Manager or her authorized designee at no additional fee to bring the design within the approved budg et. 1.2.8 CONSULTANT shall provide all other normal and customary services related to Design Development that the CONSULTANT, the Project Manager or her authorized designee finds necessary or that will lead toward the timely delivery of other phases of work in this Agreement. 1.2.9 Meetings 1.2.9.1 CONSULTANT shall attend and coordinate up to seven (7) PMT meetings, two (2) Technical-Planning meetings, two (2) Technical-Library Meetings, two (2) Technical Building Department meetings, two (2) Artist Coordination meetings, one (1 ) Technical-Technology meeting, one (1) Technical-Traffic meeting, one (1) Integrated Design Workshop, and other technical meetings as reasonably required for the Mitchell Park Project. 1.2.9.2 CONSULTANT shall coordinate meetings with reviewing agencies as required. 1.2.9.3 CONSULTANT shall attend up to two meetings with the Palo Alto Arts Commission and/or other public art Page 7 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A committee for coordination of an arts program. 1.2.10 Deliverables 1.2.10.1 CONSULTANT shall submit document packages at the 50% and 100% completion of Design Development for review by the CITY. Design Development packages shall illustrate and describe the refinement of the design of the Mitchell Park Project, establishing its scope, relationships, forms, size and appea rance. 1.2.10.2 Site plans and floor plans for all major disciplines. 1.2.10.3 Preliminary furniture layout plan. 1.2.10.4 Preliminary finish, materials and equipment schedules. 1.2.10.5 Outline specifications shall identify the major materials and systems and shall establish their general quality levels. Specifications shall be consistent with the Construction Specifications Institute (CSI) format, the version of which shall be determined by CONSULTANT. 1.2.10.6 Engineering documents shall include single line diagrams describing structural, mechanical, plumbing, and electrical systems. 1.2.10.7 Principal interior and exterior elevations showing preliminary locations of all electrical and mechanical controls, telecommunications, security, as well as life- safety devices for coordination with furniture layout. 1.2.10.8 Estimates of probable construction cost associated with the 50% and 100% Design Development submittals. 1.3 TASK E1: MITCHELL PARK PROJECT CONSTRUCTION DOCUMENTS 1.3.1 CONSULTANT shall coordinate and manage its subconsultants throughout the Construction Documents phase. 1.3.2 Upon written notice to proceed by the CITY, CONSULTANT shall refine and further develop the approved Design Development package based upon the CITY's comments and the constructability review comments on the 100% Design Development package. Page 8 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 1.3.3 CONSULTANT shall prepare and submit a 60% Construction Documents package to the CITY. 1.3.4 CONS UL T ANT shall prepare an estimate of probable construction cost for review by CITY in association with the 60% Construction Documents submittal. 1.3.5 CONSULTANT shall prepare and submit a 95% Construction Documents package, with CITY's comments from the 60% package incorporated into the documents. 1.3.6 CONS UL T ANT shall prepare an estimate of probable construction cost for review by CITY in association with the 95% Construction Documents submittal. 1.3. 7 CONSULTANT shall prepare a Construction Documents package for Building and Fire department plan check review and permitting. 1.3.8 CONSULTANT shall prepare the 100% Construction Documents package with final quality control 'comments from CITY's Building and Fire department review incorporated. 1.3.9 CONSULTANT shall prepare a Project Manual that includes the Conditions of the Contract for Construction provided by the CITY, Technical Specifications, and bidding requirements and sample forms furnished by the CITY. 1.3.10 CONS UL TANT shall maintain the LEED matrix and design documentation. 1.3.11 LEED Fundamental and Enhanced Commissioning: CONSULTANT shall have the project's commissioning agent review the design and back-check their review comments, develop a commissioning plan, commissioning specification, and commissioning checklists. 1.3.12 CONSULTANT shall provide, if necessary and as directed by the Project Manager or authorized designee, bid alternates up to a cumulative maximum amount of 1% of the estimate of probable construction cost. 1.3.13 One or more "independent checks" of the plans, specifications and bid documents may be performed by an independent party commissioned by the CITY prior to the 100% Construction Page 9 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A Document submittal. CONSULTANT shall incorporate revisions or comments from these reviews, provided by the CITY in a single, compiled, and coordinated document, in the final bid documents, unless CONSULTANT deems them to be inappropriate or in error in which case, CONSULTANT shall communicate concern to the Project Manager or her authorized designee for consideration and further direction. These checks may include architectural peer reviews and/or constructability reviews. These independent checks are to be performed strictly for the benefit of the CITY, and they shall not relieve the CONSULTANT from its obligations under this Agreement. The CITY is not obligated to perform any independent check, and the CONSULTANT shall not rely upon it for any quality or quantitative check or review. 1.3.14 Meetings 1.3.14.1 CONSULTANT shall attend and coordinate twelve (12) PMT meetings, two (2) artist coordination meetings, two (2) Technical-Planning meetings, four (4) Technical-Library meetings, three Technical-Building Department meetings, one (1) Technical-Technology meeting, one (1) Technical-Traffic meeting, one (1) Integrated Design Workshop, and other technical meetings as reasonably required for the Mitchell Park Project. 1.3.14.2 CONS UL T ANT shall attend two (2) meetings with the Arts Commission and/or Public Art committee for coordination of the arts program in the construction documents. 1.3.15 Deliverables 1.3.15.1 60%, 95%, and 100% Construction Documents packages setting forth in detail the requirements for construction of the Mitchell Park Project, including drawings and specifications that establish in detail the quality levels of required materials and systems. The Construction Documents package shall include drawings and technical specifications from all disciplines, executed to a level of detail appropriate for open public bidding. They shall include plans overlaying voice and data cabling with furniture layout as necessary, elevations reflecting relationships between furnishings and items affecting their Page 10 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A placement. Site improvements shall include all details necessary to coordinate and properly locate utilities, driveways, roadways, at-grade parking, curbs and gutters, landscape, irrigation and hardscape design. The Construction Documents shall conform to the applicable California Building Code, Title 24, ADA, and all other applicable local, State and Federal codes, regulations, permit requirements, and conditions necessary for issuance of a bu i1ding permit. 1.3.15.2 Project Manual 1.3.15.3 Detailed technical specifications that are coordinated with the plans and all the design disciplines. 1.3.15.4 Estimates of probable construction cost associated with the 60% and 95% Construction Documents submittals. 1.3.15.5 CONSULTANT shall submit one set of reproducible documents and one set of electronic digital documents at 60%, 95% and 100% completion of Construction Documents. CONSULTANT shall provide a full-sized original set, wet-stamped and signed, as required by the CITY, by all the appropriate licensed design disciplines. CONSULTANT shall also provide digital plot files directly to CITY's printing company for printing bid sets. 1.4 TASK F1 MITCHELL PARK PROJECT BIDDING AND AWARD 1.4.1 CONSULTANT shall assist CITY during bid solicitation process. 1.4.2 CONSULTANT shall prepare a full-sized original set(s), and provide a digital plot bid package for CITY's use in printing, and shall make available to the CITY an electronic version of the Construction Documents. 1.4.3 CONSULTANT shall provide bid phase services, as requested by the CITY, through award of the Contract for Construction. Service include assistance with responses to bidders' inquiries; preparation of addenda; attendance at one (1) prequalification and (1) pre-bid meeting; and assistance in the CITY's evaluation of bids. 1.4.4 In preparing estimates of the cost of the work, the Page 11 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A CONSULTANT shall be permitted to include contingencies for design, bidding and price escalation; to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents; to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids as may be necessary to adjust the estimated Cost of the Work to meet the CITY's budget for the Cost of the Work. If an increase in the Contract Sum occurring after execution of the Contract between the CITY and the Contractor causes the budget for the Cost of the Work to be exceeded, that budget shall be increased accordingly. 1.4.5 CONSULTANT will include in its estimate a contingency for bid/market conditions based on competitive bidding with a minimum of 3 bidders for all major items of subcontracted work and 3-5 general contractor bids. The CITY recognizes that the CONSULTANT has no control over competitive bidding or market conditions. If CITY anticipates less favorable bidding conditions or wishes to take a more conservative approach, CITY will cooperate with CONSULTANT to increase bid contingency and either reduce project scope or increase the project budget accordingly. 1.4.6 If bidding has not commenced within 90 days after CONSULTANT submits 95%Construction Documents to the CITY, CONSULTANT shall adjust at no additional cost to CITY, the estimate of probable construction cost to reflect changes in the general level of prices in the construction industry. Should the adjusted estimate of probable construction cost exceed the CITY approved construction budget at this point, any subsequent changes in the plans or value engineeri ng services necessary to align the adjusted estimate of probable construction cost with the CITY approved construction budget shall be considered Additional Services as noted in EXHIBT C of this Agreement. 1.4.7 Deliverables: one reproducible (hard copy for Construction Document contract file) and digital plot set of Construction Documents "Conform" package revised with all addenda, CITY reviews and plan check comments, including Fire Department, incorporated and ready for Award, and Construction. Page 12 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 1.5 TASK G1 MITCHELL PARK PROJECT CONSTRUCTION ADMINISTRATION 1.5.1 CONSULTANT's responsibility to provide Basic Construction Administration Services for the Construction Phase under this Agreement commences with CITY's issuance of a Notice to Proceed with the Contract for Construction and will end 730 calendar days from that date or upon commencement by the CONSULTANT of the Substantial Completion Correction ("Punch") list, as mutually agreed upon by CONSULTANT, the CITY's Construction Manager and CITY, whichever comes first. If the punch list does not commence within 730 calendar days of the Notice to Proceed, any further time and effort spent on behalf of the project shall be an Additional Service provided on a time and materials basis. Consultant will not be obligated to provide any work beyond the 730 cale!1dar days unless directed by CITY in writing. 1.5.2 CONSULTANT shall be a representative of and shall advise and consult with the CITY during the provision of the Contract Administration Services. The CONSULTANT shall have authority to act on be half of the CITY only to the extent provi ded in this Agreement unless otherwise modified by written amendment. 1.5.3 Duties, responsibilities and limitations of authority of the CONSULTANT under this phase shall not be restricted, modified or extended without wr itten agreement of the CITY. 1.5.4 CONSULTANT shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents, The CONSULTANT will not be responsible for the Contractor's schedules or failure to carry out the work in accordance with the Contract Documents. The CONSULTANT will not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work. CONSULTANT shall not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. 1.5.5 CONSULTANT will have access to the work at all times wherever it is in preparation or progress within 24 hours of notifying the CITY .. Page 13 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 1.5.6 CONSULTANT shall revise Bid Documents for issuance as Conform Set Contract Documents that incorporate addenda, and clarifications. 1.5.7 CONSULTANT shall attend the pre-construction conference. 1.5.8 Project Meetings and Site Visits 1.5.8.1 CONSULTANT shall attend up to 104 site construction meetings. The CONSULTANT as a representative of the CITY, shall visit the site at intervals appropriate to the stage of the Contractor's operations, or as otherwise agreed by the Project Manager or authorized designee and the CON SUL TANT (1) to become generally familiar with and to keep the CITY informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the CITY against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the CONSULTANT shall not be requi red to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. 1.5.8.2 CONSULTANT shall report to the CITY observable and known deviations from the Contract Documents by the Contractor. 1.5.8.3 CONS UL T ANT shall at all times have access to the work wherever it is in preparation or progress. 1.5.8.4 CONSULTANT shall have authority to reject Work that does not conform to the Contract Documents. Whenever the CONSULTANT considers it necessary or advisable, the CONSULTANT will have authority to require inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the CONS UL T ANT nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the CONSULTANT to the Contractor, Subcontractors, material and equipm ent suppliers, their agents or employees or other persons or entities performing portions of the Work. 1.5.8.5 CONS UL T ANT shall be responsible for scheduling the Sub CONSULTANTs visits to the site in coordination with and or as directed by CITY. Page 14 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 1.5.9 On the basis of on-site observations as a CON SUL T ANT, and through information provided to the CONS UL T ANT by the CITY's Project Manager, the CONSULTANT shall keep the CITY informed of the quality of the work. 1.5.10 Submittals: 1.5.10.1 CONSULTANT will review Contractor's submittals, including Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The CONSULTANT's action shall be taken with such reasonable promptness so as to cause no delay in the work, while allowing sufficient time in the CONSULTANT's judgment to permit adequate review· unless otherwise agreed to. Submittals critical to work flow shall be responded to within a timely manner from receipt. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents. The CONSULTANT's review shall not constitute review of safety precautions or, unless otherwise specifically stated by the CONSULTANT, of construction means, methods, techniques, sequences or procedures. The CONSULTANT's review of specific items shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the CON SUL T ANT shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. 1.5.10.2 CONSULTANT shall maintain copies of submittals supplied by the Contractor in accordance with the requirements of the Contract Documents. Reviewed submittals shall be stamped with appropriate action to be taken with notes and com ments initialed and dated. 1.5.11 If professional design serv ices or certifications by a desi gn professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the CONSULTANT shall specify appropriate performance and design criteria that such services must satisfy. Page 15 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A Shop Drawings and other submittals related to the Work designed or certified by the design professional retained by the Contractor shall bear such professional's written approval when submitted to the CONSULTANT. The CONSULTANT shall be entitled to rely upon the adequacy, acc uracy and completeness of the services; certifications or approvals performed by such design professionals. 1.5.12 Request for Information (RFI) & Architectural Supplement Information (ASI) 1.5.12.1 CONSULTANT shall review properly prepared, timely requests by the Contractor for Request For Information (RFI) about the Contract Documents. A properly prepared RFI about the Contract Documents shall be in a form prepared or approved by the CONSULTANT and shall include a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested. 1.5.12.2 If deemed appropriate by the CONSULTANT or if directed by the Project Manager or her authorized designee, the CONS UL T ANT shall on the CITY's behalf prepare, reproduce and distribute supplemental Drawings and Specifications (Architectural Supplemental Information (ASI)) in response to RFI by the Contractor or because of a need determined by CONSULT ANT to achieve the intent of the Contract Documents. 1.5.12.3 Interpretations and decisions of the CONSULTANT shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the CONSULTANT shall endeavor to secure faithful performance by both CITY and Contractor, shall not show partiality to either, and shall not be liable for the results of interpretations or decisions so rendered in good faith. 1.5.12.4 CONSULTANT's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the CITY, Contractor or separate contractors, while allowing sufficient time in the CONSULTANT s professional judgment to permit adequate review. RFI's critical to workflow shall be responded to within a timely manner from receipt. Page 16 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 1.5.13 CONSULTANT shall review for compliance, any items submitted by the Contractor for consistency with the contract documents, including but not limited to submittals, O&M Manuals, written guarantees, instruction books, diagrams and charts, etc,. 1.5.14 Review and recommend approval or rejection of substitutions for conformance with the project design concept and for compliance with Contract Documents. CONSULTANT shall briefly review each substitution at no additional cost to the CITY and provide the CITY's Project Manager with a fee and time schedule for detailed review of each substitution. Time and cost for detailed review of substitutions shall be negotiated with Contractor on a case-by-case basis. Detailed review of each sUbstitution cannot begin until authorized by the CITY's Project Manager. Detailed review of substitutions is subject to the requirements of Additional Services when approved and authorized by the CITY's Project Manager prior to beginni ng the detailed review. 1.5.15 Changes in the Work 1.5.15.1 Change Order Review and Negotiation: All changes to the Contract between the CITY and Contractor shall be only by change orders executed by the CITY. 1.5.15.2 CITY and its designee shall review the contents of all Contractor-requested changes to the contract time or price, endeavor to determine the cause of the request, and assemble and evaluate information concerning the request. CITY and its designee shall in its evaluations of the Contractor's request consider the CONSULTANT's comments regarding the proposed changes. 1.5.15.3 All proposed CONSULTANT and CITY -initiated changes shall first be described in detail by the CITY and its designee in a request for a proposal issued to the Contractor. The request shall be accompanied by drawings and specifications prepared by the CONSULTANT. In response to the request for a proposal, the Contractor shall submit to the CITY and its designee for evaluation detailed information concerning. The price and time adjustments, if any, as may be necessary to perform the proposed change order work. The CITY and its designee shall review the Contractor's proposal, shall discuss the proposed change order with the Contractor, and endeavor to determine the Contractor's basis for the price and time proposed to perform the work. All work by CONSULTANT related to CITY -initiated changes will be performed as Additional Services on a Time and Material Basis or mutually agreed lump sum. Page 17 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 1.5.16 1.5.15.4 The CITY and its designee shall negotiate change requests on behalf of the CITY. CITY and its designee shall prepare and issue to the Contractor appropriate change order documents, reviewed and signed by the CONSULTANT as required by contract. Furniture, Custom Casework, Shelving and Signage 1.5.16.1 During the Construction Administration Phases the CONSULTANT shall provide the following services related to Furniture, Custom Casework and Signage: 1.5.16.2 Staff area systems furniture will be specified in general terms showing layout, major components, and finishes. CONSULTANT shall specify that systems furniture vendor to provide detailed systems design and component selection. 1.5.16.3 CONSULTANT shall specify performance requirements for seismic bracing of cantilevered shelving with shelving vendor to provide engineering submittals. 1.5.16.4 If so requested by the CITY's Project Manager or authorized designee, the CONSULTANT shall prepare up to a total of five different bid packages for furniture, custom casework, building signage and shelving. Each bid package will be suitable for a public bid process or negotiated purchase order by CITY or Library. 1.5.16.5 CONSU L TANT shall provide up to two alternative design concepts for custom furniture and casework. 1.5.16.6 CONSULTANT shall prepare for the CITY's review functional layout drawings of library service desks and custom casework for the Library and the Community Center. 1.5.16.7 CONSULTANT shall conduct up to eight interiors Project Management Team meetings to set direction on furniture and casework. 1.5.16.8 CONSULTANT shall lead up to one day-long furniture review meeting with the furniture committee. 1.5.16.9 CONSULTANT shall prepare a 90% Bid Documents submittal for CITY and Library review. 1.5.16.1 0 CONSULTANT shall prepare 100% Bid Documents. Page 18 of48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 1.5.16.11 CONSULTANT shall assist the CITY in reviewing bidder questions and provide written addenda as required for each bid package. • 1.5.16.12 CONSULTANT shall be available for up to three days to advise on furniture and custom casework placement and punch list services. 1.5.16.13 CONSU L TANT shall provide a sign location drawing and sign copy schedule for the site identification, exterior building signage, site wayfinding, and interior signage. 1.5.16.14 CONSULTANT shall provide a 60% and 95% Design Intent Signage Documents for the CITY's review. And a 100% Bid Design Intent Signage Document. 1.5.16.15 CONSULTANT provide updated estimates of probable construction costs to the CITY at the 60% and 95% Design Intent subm ittals .. 1.5.16.16 CONSULTANT shall provide written responses to the CITY's review comments. 1.5.16.17 CONSULTANT conduct up to two signage design review meetings with the CITY. 1.5.16.18 CONSULTANT shall attend a signage pre-installation meeting with the signage contractor. 1.6 TASK H1 MITCHELL PARK PROJECT RECORD DOCUMENTS AND PROJECT CLOSEOUT 1.6.1 Project Closeout, will begin with the commencement by CONSULTANT of the Punch List as mutually determined by CONSULTANT, CITY and CITY's Construction Manager, and will end 90 calendar days from that date CONSULTANT shall complete all items over which the CONSULTANT has control indicated in the scope of Project Closeout within the 90 calendar day period. CONSULT ANT Closeout Services after 90 days will be provided as an Additional Service on a Time & Materials basis. 1.6.2 CON SUL T ANT shall receive from the Contractor and forward to the CITY, for the CITY's review and records, written warranties and related documents required by the Contract Documents and assembled by the Contractor. 1.6.3 CONSULTANT's shall conduct "Punch List" inspection to check conformance of the Work with the requirements of the Contract Documents and to verify the accuracy and completeness of the Page 19 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A list submitted by the Contractor of Work to be completed or corrected. 1.6.4 CONSULTANT shall complete and distribute the project punch list in a timely manner from the CITY's request for inspection in either MSWord or Excel format. 1.6.5 CONS UL T ANT shall review the work to determine whether the punch list items have been completed and are in conformance with the Construction Documents 1.6.6 CONSULTANT's shall conduct Final Completion observation with the CITY to check for general conformance of the Work with the requirements of the Contract Documents package and to verify the accuracy and com pleteness of the list subm itted by the Contractor of Work to be com pleted or corrected. 1.6.7 CONSULTANT shall incorporate information provided by the Contractor and information gained during site visits throughout the Project construction, and prepare record drawings and specifications based on record field construction documents package. Prior to acceptance of the Project by the CITY. CONSULTANT shall review the contractor's "as-built" drawings and specifications, and shall return them to contractor for revision if they are not complete, or otherwise known to not represent facts known to the CONSULTANT. Apart from reviewing Contractor's as-built documents, CONSULTANT shall prepare and sign the CONSULTANT's Record Drawings submit both a hard copy on Mylar and an electronic copy on Compact Disc (CD) to the CITY. 2.0 DOWNTOWN LIBRARY PROJECT 2.1 GENERAL 2.1.1 The CONS UL T ANT's Basic Services for the renovated Downtown Library ("Downtown Library Project") consist of five Tasks: Task D2 Design Development; Task E2 Construction Documents; Task F2 Bidding and Award, Task G2 Construction Administration and Task H2 Record Documents and Project Closeout. 2.1.2 The CONS UL TANT's Basic Services include the services of a civil engineer, structural engineer, mechanical engineer, electrical engineer/lighting designer, landscape architect, cost consultant, audio visual/acoustical engineer, and library programmer. 2.2 TASK D2: DOWNTOWN LIBRARY PROJECT DESIGN DEVELOPMENT Page 20 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 2.2.1 CONSULTANT shall coordinate and manage its subconsultants throughout the Design Development phase and coordinate with the Project Manager or authorized designee, key departments, including but not limited to CITY's Building, Public Works, and Engineering staff. 2.2.2 CONSULTANT shall prepare, refine and update project design schedule which identifies all major tasks, key milestones, key meetings, submittal dates and review periods for the CITY's review and comment. CONSULTANT shall provide updated design schedule at the beginning of each project phase. 2.2.3 CONSULTANT shall prepare Design Development documents based on refinement and further development of the approved schematic design, including preliminary furniture layouts, built-in fixtures, and equipment selections. 2.2.4 CONSULTANT shall refine design development plans based on comments received from the CITY's review of the 100% SD submittal. 2.2.5 CONSULTANT shall prepare an estimate of probable construction cost for review by CITY in association with the 100% Design Development submittal. 2.2.6 CONSULTANT shall meet with the CITY to review the estimate of probable construction cost and to confirm that the design is still within the CITY's approved construction budget. Should the design not be withi n the budget, CONS UL T ANT shall revise the design as directed by the Project Manager or her authorized designee at no additional fee to bring the design within the approved budget. 2.2.7 CONSULTANT shall provide all other normal and customary services related to Design Development that the CONSULTANT, the Project Manager or her authorized designee finds necessary or that will lead toward the timely delivery of other phases of work in this Agreement. 2.2.8 Meetings 2.2.8.1 CONSULTANT shall attend and coordinate up to seven (7) PMT meetings, two (2) Technical-Library Meetings, two (2) Technical-Building Department meetings, one (1) Technical-Technology meeting, one (1) Integrated Design Workshop, and other technical meetings as Page 21 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHffiITA reasonably required for the Downtown Li brary Project. 2.2.8.2 CONSULTANT shall coordinate meetings with reviewing agencies as required. 2.2.9 Deliverables 2.2.9.1 CONSULTANT shall submit a I?esign Development package at 100% completion of Design Development for review by the CITY. The Design Development package shall illustrate and describe the refinement of the design of the Downtown Library Project, establishing its scope, relationships, forms, size and appea rance. 2.2.9.2 Site plans and floor plans for all major disciplines. 2.2.9.3 Preliminary furniture layout plan. 2.2.9.4 Preliminary finish, materials and equipment schedules. 2.2.9.5 Outline specifications shall identify the major materials and systems and shall establish their general quality levels. Specifications shall be consistent with the Construction Specifications Institute (CSI) format, the version of which shall be determined by CONSULTANT. 2.2.9.6 Engineering documents shall include single line diagrams describing structural, mechanical, plumbing, and electrical systems. 2.2.9.7 Principal interior and exterior elevations showing preliminary locations of all electrical and mechanical controls, telecommunications, security, as well as life- safety devices for coordination with furniture layout. 2.2.9.8 Estimates of probable construction cost associated with the 100% Design Development submittal. 2.2.9.9 Presentation materials for meetings. 2.3 TASK E2: DOWNTOWN LIBRARY PROJECT CONSTRUCTION DOCUMENTS 2.3.1 CONSULTANT shall coordinate and manage its subconsultants throughout the Construction Documents phase. Page 22 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 2.3.2 Upon written notice to proceed by the CITY, CONSULTANT shall refine and further develop the approved Design Development package based upon the CITY's comments and the constructability review comments on the 100% Design Development package. 2.3.3 CONSULTANT shall prepare and submit a 60% Construction Documents package to the CITY. 2.3.4 CONSULTANT shall prepare an estimate of probable construction cost for review by CITY in association with the 60% Construction Documents submittal. 2.3.5 CONSULTANT shall prepare and submit a 95% Construction Documents package, with CITY's comments from the 60% package incorporated into the documents. 2.3.6 CONSULTANT shall prepare an estimate of probable construction cost for review by CITY in association with the 95% Construction Documents submittal. 2.3. 7 CONSULTANT shall prepare a Construction Documents package for Building and Fire department plan check review and permitting. 2.3.8 CONSULTANT shall prepare the 100% Construction Documents package with final quality control comments from CITY's Building and Fire department review incorporated. 2.3.9 CONSULTANT shall prepare a Project Manual that includes the Conditions of the Contract for Construction provided by the CITY, Technical Specifications, and bidding requirements and sample forms furnished by the CITY. 2.3.1 0 CONSULTANT shall provide, if necessary and as directed by the Project Manager or authorized designee, bid alternates up to a cumulative maximum amount of 5% of the estimate of probable construction cost. 2.3.11 One or more "independent checks" of the plans, specifications and bid documents may be performed by an independent party commissioned by the CITY prior to the 100% Construction Document submittal. CONSULTANT shall incorporate revisions or comments from these reviews, provided by the CITY in a single, compiled, and coordinated document, in the final bid documents, unless CONSULTANT deems them to be inappropriate or in error in which case, CONSULTANT shall communicate concern to the Page 23 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A Project Manager or her authorized designee for consideration and further direction. These checks may include architectural peer reviews and/or constructability reviews. These independent checks are to be performed strictly for the benefit of the CITY, and they shall not relieve the CONSULTANT from its obligations under this Agreement. The CITY is not obligated to perform any independent check, and the CONS UL T ANT shall not rely upon it for any quality or quantitative check or review. 2.3.12 Meetings 2.3.12.1 CONSULTANT shall attend and coordinate twelve (12) PMT meetings, four (4) Technical-Library meetings, two (2) Technical-Building Department meetings, one (1) Technical-Technology meeting, one (1) Integrated Design Workshop, and other technical meetings as reasonably required for the Downtown Li brary Project. 2.3.12.2 Consultant shall attend other meetings as specified in Section 4.0, Participation. 2.3.13 Deliverables 2.3.13.1 60%, 95%, and 100% Construction Documents packages setting forth in detail the requirements for construction of the Downtown Library Project, including drawings and specifications that establish in detail the quality levels of required materials and systems. The Construction Documents package shall include drawings and technical specifications from all disciplines, executed to a level of detail appropriate for open public bidding. They shall include plans overlaying voice and data cabling with furniture layout as necessary, elevations reflecting relationships between furnishings and items affecting their placement. Site improvements shall include all details necessary to coordinate and properly locate utilities, driveways, roadways, at-grade parking, curbs and gutters, landscape, irrigation and hardscape design. The Construction Documents shall conform to the applicable California Building Code, Title 24, ADA, and all other applicable local, State and Federal codes, regulations, permit requirements, and conditions necessary for issuance of a bu ilding permit. 2.3.13.2 Project Manual Page 24 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 2.3.13.3 Detailed technical specifications that are coordinated with the plans and all the design disciplines. 2.3.13.4 Estimates of probable construction cost associated with the 60% and 95% Construction Documents submittals. 2.3.13.5 CONSULTANT shall submit one set of reproducible documents and one set of electronic digital documents at 60%, 95% and 100% completion of Construction Documents. CON SUL T ANT shall provide a full-sized original set, wet-stamped and signed, as required by the CITY, by all the appropriate licensed design disciplines. CONS UL T ANT shall also provide digital plot files directly to CITY's printing company for printing bid sets. 2.4 TASK F2: DOWNTOWN LIBRARY PROJECT BIDDING AND AWARD 2.4.1 CONSULTANT shall prepare a full-sized original set(s), and provide a digital plot bid package for CITY's use in printing, and shall make available to the CITY an electronic version of the Construction Documents. 2.4.2 CONSULTANT shall provide bid phase services, as requested by the CITY, through award of the Contract for Construction. Service include assistance with responses to bidders' inquiries; preparation of addenda; attendance at one (1) prequalification and (1) pre-bid meeting; and assistance in the CITY's evaluation of bids. 2.4.3 In preparing estimates of the cost of the work, the CONSULTANT shall be permitted to include contingencies for design, bidding and price escalation; to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents; to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids as may be necessary to adjust the estimated Cost of the Work to meet the CITY's budget for the Cost of the Work. If an increase in the Contract Sum occurring after execution of the Contract between the CITY and the Contractor causes the budget for the Cost of the Work to be exceeded, that budget shall be increased accordingly. 2.4.4 CONSULTANT will include in its estimate a contingency for bid/market conditions based on competitive bidding with a Page 25 of48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A minimum of 3 bidders for all major items of subcontracted work and 3-5 general contractor bids. The CITY recognizes that the CONSULTANT has no control over competitive bidding or market conditions. If CITY anticipates less favorable bidding conditions or wishes to take a more conservative approach, CITY will cooperate with CONSULTANT to increase bid contingency and either reduce project scope or increase the proj ect budget accordingly. 2.4.5 If bidding has not commenced within 90 days after CONSULTANT submits 95%Construction Documents to the CITY, CONSULTANT shall adjust at no additional cost to CITY, the estimate of probable construction cost to reflect changes in the general level of prices in the construction industry. Should the adjusted estimate of probable construction cost exceed the CITY approved construction budget at this point, any subsequent changes in the plans or value engineering services necessary to align the adjusted estimate of probable construction cost with the CITY approved construction budget shall be considered Additional Services as noted in EXHIBT C of this Agreement. 2.4.6 Deliverables: one (1) 100% reproduci ble (hard copy for Construction Document contract file) and digital plot set of Construction Documents "Conform" package revised with all addenda, CITY reviews and plan check, including Fire Department, ready for Award, and Construction. 2.5 TASK G2 DOWNTOWN LIBRARY PROJECT CONSTRUCTION ADMINISTRATION 2.5.1 The CONSULTANT's responsibility to provide Basic Construction Administration Services for the Construction Phase under this Agreement commences with CITY's issuance of a Notice to Proceed with the Contract for Construction and will end 365 calendar days from that date or upon commencement by the CONSULTANT of the Substantial Completion Correction ("Punch") list, as mutually agreed upon by CONSULTANT, the CITY's Construction Manager and CITY, whichever comes first. If the punch list does not commence within 365 calendar days of the Notice to Proceed, any further time and effort spent on behalf of the project shall be an Additional Service provided on a time and materials basis. Consultant will not be obligated to provide any work beyond the 365 calendar days unless directed by CITY in writing. 2.5.2 The CONSULTANT shall be a representative of and shall advise and consult with the CITY during the provision of the Contract Page 26 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A Administration Services. The CONSULTANT shall have authority to act on behalf of the CITY only to the extent provided in this Agreement unless otherwise modified by written amendment. 2.5.3 Duties, responsibil ities and limitations of authority of the CONSULTANT under this phase shall not be restricted, modified or extended without written agreement of the CITY. 2.5.4 The CONSULTANT shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents. 2.5.5 The CONSULTANT shall not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. 2.5.6 Project Meetings and Site Visits 2.5.6.1 The CONSULTANT shall attend up to 52 site construction meetings. The CONS UL T ANT as a representative of the CITY, shall visit the site at intervals appropriate to the stage of the Contractor's operations, or as otherwise agreed by the Project Manager or authorized designee and the CONSU L T ANT (1) to become generally familiar with and to keep the CITY informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the CITY against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the CONSULTANT shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. 2.5.6.2 The CONSULTANT shall report to the CITY known deviations from the Contract Documents. 2.5.6.3 The CONSULTANT shall at all times have access to the work within 24 hours wherever it is in preparation or progress. 2.5.6.4 The CONSULTANT shall have authority to reject Work that does not conform to the Contract Documents. Whenever the CONSULTANT considers it necessary or advisable, the CONS UL TANT will have authority to require inspection Page 27 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the CONSU L T ANT or a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the CONSULTANT to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons or entities performing portions of the Work. 2.5.6.5 The CONSULTANT shall be responsible for scheduling the subconsultants visits to the site in coordination with and or as directed by the CITY. 2.5.7 On the basis of on-site observations as a CONSULTANT, and through information provided to the CONSULT ANT by the CITY's Project Manager, the CONSULTANT shall keep the CITY informed of the quality of the work. 2.5.8 Submittals: 2.5.8.1 The CONSULTANT will review Contractor's submittals, including Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The CONSULTANT's action shall be taken with such reasonable promptness so as to cause no delay in the work, while allowing sufficient time in the CONSULTANT's judgment to permit adequate review unless otherwise agreed to. Submittals critical to work flow shall be responded to within a timely manner from receipt. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents. The CONSULTANT's review shall not constitute review of safety precautions or, unless otherwise specifically stated by the CONS UL T ANT, of construction means, methods, techniques, sequences or procedures. The CONSULTANT's review of specific items shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the CONSULTANT shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. Page 28 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 2.5.8.2 The CONSULTANT shall maintain copies of submittals supplied by the Contractor in accordance with the requirements of the Contract Documents. Reviewed submittals shall be stamped with appropriate action to be taken with notes and comments initialed and dated. 2.5.8.3 If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the CONS UL T ANT shall specify appropriate performance and design criteria that such services must satisfy. Shop Drawings and other submittals related tothe Work designed or certified by the design professional retained by the Contractor shall bear such professional's written approval when submitted to the CONSULTANT. The CON SUL T ANT shall be entitled to rely upon the adequacy, accuracy and completeness of the services; certifications or approvals performed by such design professionals. 2.5.9 Request for Information (RFI) & Architectural Supplement Information (ASI) 2.5.9.1 The CONSULTANT shall review properly prepared, timely requests by the Contractor for for information (RFI) about the Contract Documents. A properly prepared RFI about the Contract Documents shall be in a form prepared or approved by the CONSULTANT and shall include a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested. 2.5.9.2 If deemed appropriate by the CONSULTANT or if directed by the Project Manager or her authorized designee, the CON SUL T ANT shall on the CITY's behalf prepare, reproduce and distribute supplemental Drawings and Specifications (Architectural Supplemental Information (ASI» in response to RFI by the Contractor or because of a need determined by CONSULTANT to achieve the intent of the Contract Documents .. 2.5.9.3 Interpretations and decisions of the CONSULT ANT shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the CONSULTANT shall endeavor to secure faithful performance by both CITY and Contractor, shall not show partiality to either, and shall not be liable for the results of interpretations or decisions so rendered in good faith. Page 29 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 2.5.9.4 The CONSULTANT's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the CITY, Contractor or separate contractors, while allowing sufficient time in the CONSULTANT s professional judgment to permit adequate review. RFI's critical to workflow shall be responded to within a timely manner from receipt. 2.5.10 CONSULTANT shall review for compliance, any items submitted by the Contractor for consistency with the contract documents, including but not limited to submittals, O&M Manuals, written guarantees, instruction books, diagrams and charts, etc,. 2.5.11 Review and recommend approval or rejection of substitutions for conformance with the project design concept and for compliance with Contract Documents. CONSULTANT shall briefly review each substitution at no additional cost to the CITY and provide the CITY's Project Manager with a fee and time schedule for detailed review of each substitution. Time and cost for detailed review of substitutions shall be negotiated with Contractor on a case-by- case basis. Detailed review of each substitution cannot begin until authorized by the CITY's Project Manager. Detailed review of substitutions is subject to the requirements of Additional Services when approved and authorized by the CITY's Project Manager prior to beginning the detailed review. 2.5.12 Changes in the Work 2.5.12.1 Change Order Review and Negotiation: All changes to the Contract between the CITY and Contractor shall be only by change orders executed by the CITY. 2.5.12.2 CITY and its designee shall review the contents of all. Contractor-requested changes to the contract time or price, endeavor to determine the cause of the request, and assemble and evaluate information concerning the request CITY and its designee shall in its evaluations of the Contractor's request consider the CONSULTANT's comments regarding the proposed changes. 2.5.12.3 All proposed CONSU L T ANT and CITY -initiated changes shall first be described in detail by the CITY and its d~signee in a request for a proposal issued to the Contractor. The request shall be accompanied by drawings and specifications prepared by the CONSULTANT. In response to the request for a proposal, the Contractor shall submit to the CITY and its designee for evaluation detailed information concerning. The price and time adjustments, if any, as may be Page 30 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A necessary to perform the proposed change· order work. The CITY and its designee shall review the Contractor's proposal, shall discuss the proposed change order with the Contractor, and endeavor to determine the Contractor's basis for the price and time proposed to perform the work. All work by CONSULTANT related to CITY -initiated changes will be performed as Additional Services on a Time and Material Basis or mutually agreed lump sum. CITY and its designee shall negotiate change requests on behalf of the CITY. CITY and its designee shall prepare and issue to the Contractor appropriate change order documents, reviewed and signed by the CONSULTANT as required by contract. 2.6 TASK G2.1 DOWNTOWN LIBRARY LEED DESIGN AND DOCUM ENTATION 2.6.1 The CONSULTANT shall prepare and submit LEED documentation for the Downtown Library for certification purposes based on the LEED Commercial Interiors 2009 for LEED certified level. The work includes preparing and submitting all required design submittal documentation for the LEED credits as identified on the LEED Matrix fated February 2010. 2.6.2 The CONSULTANT shall provide fundamental commissioning services during the design phase construction phases of the project. 2.6.3 The CONS UL T ANT shall provide design intent information and clarifications to the Contractor during the construction phase of the project. 2.6.4 The CONSULTANT shall provide Construction Administration services which include review of Contractor-provided LEED submittals required for the Construction submittal by the Contractor. 2.7 TASK G2.2 DOWNTOWN STANDARD LIBRARY AND OFFICE FURNITURE 2.7.1 During the Construction Administration Phases the CONSULTANT shall provide the following services related to Standard Library and Office Furniture: 2.7.2 Building Staff area systems furniture will be specified in general terms showing layout, major components, and finishes. CONSULTANT shall specify that systems furniture vendor to provide detailed systems design and component selection. Page 31 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 2.7.3 CONSULTANT shall specify performance requirements for seismic bracing of cantilevered shelving with shelving vendor to provide engineering submittals. 2.7.4 If so requested by the CITY's Project Manager or authorized designee, the CONSULTANT shall prepare up to a total of five different specification packages for furniture. Each package will be suitable for a negotiated purchase order by CITY or Library. 2.7.5 The CONSULTANT shall provide up to two alternative design concepts for standard furniture. 2.7.6 The CONSULTANT shall conduct up to four furniture meetings to set direction on furniture, casework and signage. 2.7.7 The CONSULTANT shall lead up to one day-long furniture review with the furniture committee. 2.7.8 The CONSULTANT shall prepare a 90% Specification Documents submittal for CITY and Library review. 2.7.9 The CONSULTANT shall prepare 100% Specification Documents. 2.7.10 The CONSULTANT shall assist the CITY in reviewing bidder questions and provide written addendum as required for each bid package. 2.7.11 The CONSULTANT shall be available for up to two days to advise on furniture and punch list services. 2.8 TASK H2 DOWNTOWN LIBRARY PROJECT RECORD DOCUMENTS AND PROJECT CLOSEOUT 2.8.1 Project Closeout, will begin with the commencement by CONSULTANT of the Punch list as mutually determined by CONSULTANT, CITY and CITY's Construction Manager, and will end 60 calendar days from that date CONS UL T ANT shall complete all items over which the CONSULTANT has control indicated in the scope of Project Closeout within the 60 calendar day period. CONSULTANT Closeout Services after 60 days will be provided as an Additional Service on a Time & Materials basis. 2.8.2 The CONSULTANT shall receive from the Contractor and forward to the CITY, for the CITY's review and records, written warranties and related documents required by the Contract Documents and assembled by the Contractor. 2.8.3 The CONSULTANT's shall conduct "Punch List" inspection to check conformance of the Work with the requirements of the Page 32 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A Contract Documents and to verify the accuracy and completeness of the list submitted by the Contractor of Work to be completed or corrected. 2.8.4 The CONS UL T ANT shall complete and distribute the project punch list in a timely manner from the CITY's request for inspection in either MSWord or Excel format. 2.8.5 CONSULTANT shall review the work to determine whether the punch list items have been completed and are in conformance with the Construction Documents 2.8.6 CONSU L T ANT's shall conduct Final Completion observation with the CITY to check for general conformance of the Work with the requirements of the Contract Documents package and to verify the accuracy and completeness of the list submitted by the Contractor of Work to be completed or corrected. 2.8.7 The CONS UL T ANT shall incorporate information provided by the Contractor and information gained during site visits throughout the Project construction, and prepare record drawings and specifications based on record field construction documents package. Prior to acceptance of the Project by the CITY. CONSULTANT shall review the contractor's "as-built" drawings and specifications, and shall return them to contractor for revision if they are not complete, or otherwise known to not represent facts known to the CONSULTANT. Apart from reviewing Contractor's as-builts documents, CONSULTANT shall prepare and sign the CONSULTANT's Record Drawings submit both a hard copy on Mylar and an electronic copy on Compact Disc (CD) to the CITY. 3.0 TEMPORARY MITCHELL PARK LIBRARY PROJECT 3.1 GENERAL 3.1.1 The CONSU L TANT's Basic Services for Temporary Library Facilities ("Temporary Library Facilities Project") consist of one Task: Temporary Library Facilities Project Design. 3.1.2 The CONSULTANT's Basic Services for the Temporary Library Facilities Project include the services of a, mechanical engineer, electrical engineer/lighting designer, landscape architect, cost estimator and library programmer. 3.2 TASK D3: TEMPORARY MITCHELL PARK LIBRARY FACILITIES PROJECT DESIGN Page 33 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 3.2.1 The CONSULTANT shall develop conceptual design floor plans, with input from the CITY. 3.2.2 The CONSULTANT shall: 3.2.3 Develop a comprehensive building program for temporary library and community center services in the range of 8,000 to 10,000 total square feet spread between different locations yet to be determined by the CITY, Program size is based on the anticipated use of existing CITY facilities as temporary library and community center facilities during the renovation of the Downtown Library and the construction of the Mitchell Park Library. 3.2.4 Provide dimensions and notes to describe the scale and principal features of the interior of the temporary facilities on the conceptual floor plans. The conceptual floor plans will show the desired location and approximate size of the new or relocated windows and doors. 3.3 TASK E3: TEMPORARY MITCHELL PARK LIBRARY FACILITIES CONSTRUCTION DOCUMENTS 3.3.1 The CONS UL T ANT shall develop construction documents for the temporary library and technical services with input from the CITY. 3.3.2 The CONSULTANT shall: 3.3.2.1 Recommend finishes for the CITY's approval. 3.3.2.2 Prepare drawings and other documents describing signage and graphi cs for the new tem porary library 3.3.2.3 Prepare technical specifications for the architectural portions of the T em porary Library F acil ities Project. 3.3.2.4 Review CITY-provided schedule of eXisting furniture indicating which furniture is to be reused for the Project and assist the CITY in the selection and specification of new furniture. Prepare a drawing showing the new furniture locations. 3.3.2.5 The CONS UL T ANT will provide drawings and other project documents to describe the scope of the project in sufficient detail for the CITY to publicly bid the Temporary Library Facilities Project. Page 34 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 3.3.2.6 Deliverables: Contract Document drawings, building program and other project documents to describe the scope of the project for the CITY coordinate and repurpose existing facilities for temporary library, to move existing furniture and purchase new furniture; updated project budget. 3.3.2.7 Meetings included in this phase (may be shared with other phases and/or meetings): two (2) Technical meetings; three (3) PMT meetings. 3.4 TASK F3: TEMPORARY MITCHELL PARK LIBRARY PROJECT BIDDING AND AWARD 3.4.1 CONSULTANT shall prepare a full-sized original set(s), and provide a digital plot bid package for CITY's use in printing, and shall make available to the CITY an electronic version of the Construction Documents. 3.4.2 CONSULTANT shall provide bid phase services, as requested by the CITY, through award of the Contract for Construction. Service include assistance with responses to bidders' inquiries; preparation of addenda; attendance at one (1) prequalification and (1) pre-bid meeting; and assistance in the CITY's' evaluation of bids. 3.4.3 In preparing estimates of the cost of the work, the CONSULTANT shall be permitted to include contingencies for design, bidding and price escalation; to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents; to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids as may be necessary to adjust the estimated Cost of the Work to meet the CITY's budget for the Cost of the Work. If an increase in the Contract Sum occurring after execution of the Contract between the CITY and the Contractor causes the budget for the Cost of the Work to be exceeded, that budget shall be increased accordingly. 3.4.4 CONSULTANT will include in its estimate a contingency for bid/market conditions based on competitive bidding with a minimum of 3 bidders for all major items of subcontracted work and 3-5 general contractor bids. The CITY recognizes that the CONSULTANT has no control over competitive bidding or market conditions. If CITY anticipates less favorable bidding conditions or Page 35 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A wishes to take a more conservative approach, CITY will cooperate with CONSULTANT to increase bid contingency and either reduce project scope or increase the project budget accordingly. 3.4.5 If bidding has not commenced within 90 days after CONSULTANT submits 95%Construction Documents to the CITY, CONSULTANT shall adjust at no additional cost to CITY, the estimate of probable construction cost to reflect changes in the general level of prices in the construction industry. Should the adjusted estimate of probable construction cost exceed the CITY approved construction budget at this point, any subsequent changes in the plans or value engineering services necessary to align the adjusted estimate of probable construction cost with the CITY approved construction budget shall be considered Additional Services as noted in EXHIBT C of this Agreement. 3.4.6 Deliverables: one (1) 100% reproducible (hard copy of Construction Document contract file for Bidding), digital plot set, and all project addenda. 3.5 TASK G3: TEMPORARY MITCHELL PARK LIBRARY PROJECT CONSTRUCTION ADMINISTRATION 3.5.1 The Consultant's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with CITY's award of a general contract for the construction of the Project and terminates 90 calendar days later or on the original date of Substantial Completion of the Work, whichever comes first. 3.5.2 The CONSULTANT shall revise Bid Documents for issuance as Conform Set Contract Documents that incorporate addenda, and clarifications. 3.5.3 The CONSULTANT shall attend the pre-construction conference. 3.5.4 The CONSULTANT may visit the site approximately once every two weeks or at intervals appropriate to the stage of construction or as otherwise agreed by the CITY and CONSULTANT to attend Project meetings and to become generally familiar with the progress and quality of the work completed and to determine, in general, if the work is being performed in a manner indicating that the work when completed will be in accordance with the Contract Documents. However, the CONSULTANT shall not be required to make exhaustive continuous on-site inspections to check the Page 36 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A quality or quantity of the work. 3.5.5 On the basis of on-site observations as a CONSULTANT, and through information provided to the CONSULTANT by the CITY's Project Manager, the CONSULTANT shall keep the CITY informed of the progress and quality of the work. 3.5.6 The CONSULTANT will review Contractor's submittals, including Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The CONSULTANT's action shall be taken with such reasonable promptness so as to cause no delay in the work, while allowing sufficient time in the CONSULTANT's judgment to permit adequate review unless otherwise agreed to. The CONSULTANT will be allowed a maximum of 14 calendar days in most cases except for large submittals per review, exclusive of substitution. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents. The CONSUL TANT's review shall not constitute review of safety precautions or, unless otherwise specifically stated by the CONSULTANT, of construction means, methods, techniques, sequences or procedures. The CONSULTANT's review of specific items shall not indicated approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the CONSULTANT shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. 3.5.7 The CONSULTANT will respond to Contractor's Requests For Information (RFI). Interpretations and decisions of the CONSULTANT shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the CONS UL T ANT shall secure faithful performance by both CITY and Contractor, shall not show partiality to either, and shall not be liable for results of interpretations or decisions so rendered in good faith. CONSULTANT will be allowed a maximum of 14 calendar days in most cases except for large RFI per request for responses. Page 37 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 3.5.8 CONSULTANT shall review for compliance, any items submitted by the Contractor for consistency with the contract documents, including but not limited to submittals, O&M Manuals, written guarantees, instruction books, diagrams and charts, etc, within . fourteen (14) calendar days of receipt. 3.5.9 Review and recommend approval or rejection of substitutions for conformance with the project design concept and for compliance with Contract Documents. CONSULTANT shall briefly review each substitution at no additional cost to the CITY and provide the CITY's Project Manager with a fee and time schedule for detailed review of each substitution. Time and cost for detailed review of substitutions shall be negotiated with Contractor on a case-by- case basis. Detailed review of each substitution cannot begin until authorized by the CITY's Project Manager. Detailed review of substitutions is subject to the requirements of Additional Services when approved and authorized by the CITY's Project Manager prior to beginning the detailed review. 3.5.10 The CONSULTANT will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences or procedures, or safety precautions and programs in connection with the work, since these are solely the Contractor's responsibility under the Contract for Construction. The CONSULTANT will not be responsible for the Contractor's schedules or failure to carry out the work in accordance with the Contract Documents. The CONS UL T ANT will not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work. The CONSULTANT will at all times have access to the work wherever it is in preparation or progress. Duties, responsibilities and limitation of authority of the CONSULTANT shall not be restricted, modified or extended without written agreement of the CITY and CONS UL T ANT. 4 MAIN LIBRARY PROJECT 4.1 GENERAL 4.1.1 CONSULTANT's Basic Services for the Renovation and Addition to the Main Library ("Main library Project") consist of three Tasks: Task D4 Design Development; Task E4 Construction Documents; and Task F4 Page 38 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A Bidding and Award. 4.1.2 CONSULTANT's Basic Services include the services of a civil engineer, structural engineer, mechanical engineer, electrical engineer/lighting designer, landscape architect, cost consultant, audio visual/acoustical engineer, energy analysis engineer, commissioning agent, historical architect and library programmer. 4.1.3 The CITY intends that the Main library Project shall be designed to meet the standards for LEED Certified or higher rating by the USGBC. 4.1.3.1 CONS UL T ANT shall design the Main Library Project to meet the requirements for LEED V2009 certification at the Certified or higher level. 4.1.3.2 CONSULTANT shall provide LEED project management services needed for the CITY to obtain LEED certification of the Main Library Project, develop specifications consistent with LEED and the CITY's policies, and provide the templates, documentation, calculations, and energy modeling studies necessary to obtain LE ED certification. 4.1.3.3 CONSULTANT shall include a LEED accredited professional on the design team to support Project Sustainable Building/ Green Building design criteria as required to achieve LEED certification. 4.1.3.4 CON SUL T ANT shall include in the construction documents appropriate provisions requiring the contractor to meet the requirements for CITY's submittal to USGBC for LEED Certified or higher level of certification. 4.2 TASK D4: MAIN LIBRARY PROJECT DESIGN DEVELOPMENT 4.2.1 CONSULTANT shall coordinate and manage its subconsultants throughout the Design Development phase and coordinate with the Project Manager or authorized designee, key departments, including but not limited to CITY's Building, Public Works, and Engineering staff. 4.2.2 CONSULTANT shall prepare, refine and update project design schedule which identifies all major tasks, key milestones, key meetings, submittal dates and review periods for the CITY's review and comment. CONSULTANT shall provide updated design schedule at the beginning of each project phase. Page 39 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 4.2.3 CONSULTANT shall prepare Design Development documents based on refinement and further development of the approved schematic design, including preliminary furniture layouts, built-in fixtures, and equipment selections. 4.2.4 CONS UL T ANT shall refine design developm ent plans based on comments received from the CITY's review of the 100% SD and 50% DD submittal. 4.2.5 CONSULTANT shall prepare estimates of probable construction cost for review by CITY in association with the 50% and the 100% Design Development submittals. 4.2.6 CONSULTANT shall have the Main Library Project's LEED commissioning agent review the design, back-check review comments, and develop a com missioning plan, specifi cations, and checkl ists. 4.2.7 CONSULTANT shall meet with the CITY to review the estimate of probable construction cost and to confirm that the design is still within the CITY's approved construction budget. Should the design not be within the budget, CONSULTANT shall revise the design as directed by the Project Manager or her authorized designee at no additional fee to bring the design within the approved budget. 4.2.8 CONS UL T ANT shall provide all other normal and customary services related to Design Development that the CONSULTANT, the Project Manager or her authorized designee finds necessary or that will lead toward the timely delivery of other phases of work in this Agreement. 4.2.9 Meetings 4.2.9.1 CONSULTANT shall attend and coordinate up to five (5) PMT meetings, two (2) Technical-Planning meetings, two (2) Technical-Library Meetings, two (2) Technical Building Department meetings, two (2) Artist Coordination meetings, one (1) Technical-Technology meeting, one (1 ) Technical-Traffic meeting, one (1) Integrated Design Workshop, and other technical meetings as reasonably required for the Main Library Project. 4.2.9.2 CONSULTANT shall attend and coordinate meetings with reviewing agencies as required. 4.2.9.3 CONSULTANT shall attend up to two meetings with the Palo Page 40 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A Alto Arts Commission and/or other public art committee for coordination of an arts program. 4.2.10 Deliverables 4.2.10.1 CONSU L TANT shall submit document packages at the 50% and 100% completion of Design Development for review by the CITY. Design Development packages shall illustrate and describe the refinement of the design of the Mitchell Park Project, establishing its scope, relationships, forms, size and appearance. 4.2.10.2 Site plans and floor plans for all major disciplines. 4.2.10.3 Preliminary furniture layout plan. 4.2.10.4 Preliminary finish, materials and equipm ent schedules. 4.2.10.5 Outline specifications shall identify the major materials and systems and shall establish their general quality levels. Specifications shall be consistent with the Construction Specifications Institute (CSI) format, the version of which shall be determined by CONSULTANT. 4.2.10.6 Engineering documents shall include single line diagrams describing structural, mechanical, plumbing, and electrical systems. 4.2.10.7 Principal interior and exterior elevations showing preliminary locations of all electrical and mechanical controls, telecommunications, security, as well as life-safety devices for coordination with furniture layout. 4.2.10.8 Estimates of probable construction cost associated with the 50% and 100% Design Development submittals. 4.3 TASK E4: MAIN LIBRARY PROJECT CONSTRUCTION DOCUMENTS 4.3.1 CONS UL T ANT shall coordinate and manage its subconsultants throughout the Construction Documents phase. 4.3.2 Upon written notice to proceed by the CITY, CONSULTANT shall refine and further develop the approved Design Development package based upon the CITY's comments and the constructability review comments on Page 41 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A the 100% Design Development package. 4.3.3 CONSULTANT shall prepare and submit a 60% Construction Documents package to the CITY. 4.3.4 CONS UL T ANT shall prepare an estimate of probable construction cost for review by CITY in association with the 60% Construction Documents submittal. 4.3.5 CONSULTANT shall prepare and submit a 95% Construction Documents package, with CITY's comments from the 60% package incorporated into the documents. 4.3.6 CONSULTANT shall prepare an estimate of probable construction cost for review by CITY in association with the 95% Construction Documents submittal. 4.3.7 CONS UL T ANT shall prepare a Construction Documents package for Building and Fi re department plan check review and permitting. 4.3.8 CONS UL T ANT shall prepare the 100% Construction Documents package with final quality control comments from CITY's Building and Fire department review incorporated. 4.3.9 The CONS UL T ANT shall prepare a Project Manual that includes the Conditions of the Contract for Construction provided by the CITY, Technical Specifications, and bidding requirements and sample forms furnished by the CITY. 4.3.1 0 CONSULTANT shall maintain the LEED matrix and design documentation. 4.3.11 LEED Fundamental and Enhanced Commissioning: CONS UL TANT shall have the project's commissioning agent review the design and back- check their review comments, develop a commissioning plan, commissioning specification, and comm issioning checklists. 4.3.12 CONSULTANT shall provide, if necessary and as directed by the Project Manager or authorized designee, bid alternates up to a cumulative maximum amount of 1 % of the estimate of probable construction cost. 4.3.13 One or more "independent checks" of the plans, specifications and bid documents may be performed by an independent party commissioned by the CITY prior to the 100% Construction Document submittal. Page 42 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A CONSULTANT shall incorporate revIsions or comments from these reviews, provided by the CITY in a single, compiled, and coordinated document, in the final bid documents, unless CONSULTANT deems them to be inappropriate or in error in which case, CONSULTANT shall communicate concern to the Project Manager or her authorized designee for consideration and further direction. These checks may include architectural peer reviews and/or constructability reviews. These independent checks are to be performed strictly for the benefit of the CITY, and they shall not relieve the CONSULTANT from its obligations under this Agreement. The CITY is not obligated to perform any independent check, and the CONSULTANT shall not rely upon it for any quality or quantitative check or review. 4.3.14 Meetings 4.3.14.1 CONSU L T ANT shall attend and coordinate eight (8) PMT meetings, two (2) artist coordination meetings, two (2) Technical-Planning meetings, four (4) Technical-Library meetings, three Technical-Building Department meetings, one (1) Technical-Technology meeting, one (1) Technical-Traffic meeting, one (1) Integrated Design Workshop, and other technical meetings as reasonably required for the Main Library Project. 4.3.14.2 CONSULTANT shall attend two (2) meetings with the Arts Commission and/or Public Art committee for coordination of the arts program in the construction documents. 4.3.15 Deliverables 4.3.15.1 60%, 95%, and 100% Construction Documents packages setting forth in detail the requirements for construction of the Main Library Park Project, including drawings and specifications that establish in detail the quality levels of required materials and systems. The Construction Documents package shall include drawings and technical specifications from all disciplines, executed to a level of detail appropriate for open public bidding. They shall include plans overlaying voice and data cabling with furniture layout as necessary, elevations reflecting relationships between furnishings and items affecting their placement. Site improvements shall include all details necessary to coordinate and properly locate utilities, driveways, roadways, at-grade parking, curbs and gutters, landscape, irrigation and hardscape design. The Construction Documents Page 43 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A shall conform to the applicable California Building Code, Title 24, ADA, and all other applicable local, State and Federal codes, regulations, permit requirements, and conditions necessary for issuance of a building permit. 4.3.15.2 Project Manual 4.3.15.3 Detailed technical specifications that are coordinated with the plans and all the design disciplines. 4.3.15.4 Estimates of probable construction cost associated with the 60% and 95% Construction Documents submittals. 4.3.15.5 The CONSULTANT shall submit one set of reproducible documents and one set of electronic digital documents at 60%, 95% and 100% completion of Construction Documents. CONSULTANT shall provide a full-sized original set, wet- stamped and signed, as required by the CITY, by all the appropriate licensed design disciplines. CONSULTANT shall also provide digital plot files directly to CITY's printing company for printing bid sets. 4.4 TASK F4 MAIN LIBRARY PROJECT BIDDING AND AWARD 4.4.1 CONSULTANT shall assist CITY during bid solicitation process. 4.4.2 CONSULTANT shall prepare a full-sized original set(s), and provide a digital plot bid package for CITY's use in printing, and shall make available to the CITY an electronic version of the Construction Documents. 4.4.3 CONSULTANT shall provide bid phase services, as requested by the CITY, through award of the Contract for Construction. Service include assistance with responses to bidders' inquiries; preparation of addenda; attendance at one (1) prequalification and (1) pre-bid meeting; and assistance in the CITY's evaluation of bids. 4.4.4 In preparing estimates of the cost of the work, the CONSULTANT shall be permitted to include contingencies for design, bidding and price escalation; to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents; to make reasonable adjustm ents in the scope of the Project and to include in the Contract Documents alternate bids as may be necessary to adjust the estimated Cost of the Work to meet the CITY's budget for the Cost of the Work. If an increase in the Contract Sum Page 44 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A occurring after execution of the Contract between the CITY and the Contractor causes the budget for the Cost of the Work to be exceeded, that budget shall be increased accordi ngly. 4.4.5 CONSULTANT will include in its estimate a contingency for bid/market conditions based on competitive bidding with a minimum of 3 bidders for all major items of subcontracted work and 3-5 general contractor bids. The CITY recognizes that the CONSULTANT has no control over competitive bidding or market conditions. If CITY anticipates less favorable bidding conditions or wishes to take a more conservative approach, CITY will cooperate with CONSULTANT to increase bid . contingency and either reduce project scope or increase the project budget accordingly. 4.4.6 If bidding has not commenced within 90 days after CONSULTANT submits 95%Construction Documents to'the CITY, CONSULTANT shall adjust at no additional cost to CITY, the estimate of probable construction cost to reflect changes in the general level of prices in the construction industry. Should the adjusted estimate of probable construction cost exceed the CITY approved construction budget at this ·point, any subsequent changes in the plans or value engineering services necessary to align the adjusted estimate of probable construction cost with the CITY approved construction budget shall be considered Additional Services as noted in EXHIBT C of this Agreement. 4.4.7 Deliverables: one reproducible (hard copy for Construction Document contract file) and digital plot set of Construction Documents "Conform" package revised with all addenda, CITY reviews and plan check comments, including Fire Department, incorporated and ready for Award, and Construction. 5 TEMPORARY MAIN LIBRARY PROJECT 5.1 GENERAL 5.1.1 CONSULTANT's Basic Services for Temporary Main Library ("Temporary Main Library Project") consist of two tasks: Task A5 Temporary Main Library Site Analysis Phase and Task C5 Temporary Main Library Design Phase. 5.1.2 CONSULTANT's Basic Services for the Temporary Main Library Project include the services of a mechanical engineer, electrical engineer/lighting designer, cost estimator and library programmer. Page 45 of48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 5.2 TASKA5: TEMPORARY MAIN LIBRARY SITE ANALYSIS PHASE 5.2.1 CONSULTANT shall review and analyze potential sites and existing buildings for the appropriateness of being a Temporary Main Library. The potential sites and buildings shall be identified by the CITY and provided to the CONS UL T ANT. 5.2.2 CONSULTANT shall review the potential sites and buildings for the following criteria; site capacity, community access, code compliance, building capacity, and availability. 5.2.3 The CONSULTANT shall develop up to two preliminary building programs for the Temporary Main Library to be used in conjunction with the site analysis the programs shall range in size from 8,000 square feet to 10,000 square feet. 5.2.4 CONSULTANT shall develop preliminary project budgets for up to three sites. 5.2.5 CITY and the CONSULTANT shall review the potential sites and analyze them based on the established criteria; a preferred option will be selected. 5.3 TASK C5: TEMPORARY MAIN LIBRARY PRELIMINARY DESIGN PHASE 5.3.1 CONSULTANT shall develop Preliminary Design Documents for the preferred site option for the Temporary Main Library. 5.3.2 CONSULTANT shall coordinate and manage its subconsultants throughout the Preliminary Design phase and coordinate with the Project Manager or authorized designee, key departments, including but not limited to CITY's Planning, Building, Public Works, and Engineering staff. 5.3.3 CONSULTANT shall prepare, refine and update project design schedule which identifies all major tasks, key milestones, key meetings, submittal dates and review periods for the CITY's review and com ment. 5.3.4 CONSULTANT shall prepare Preliminary Design documents based on refinement and further development of the site option including site plans, building plans, furniture and shelving layouts, and electrical, lighting and mechanical plans. 5.3.5 CONS UL T ANT shall refine design plans based on comments received from the CITY's review of the Preliminary Design Documents. 5.3.6 CONSULTANT shall prepare estimates of probable construction cost for review by CITY in association with Preliminary Design submittals. Page 46 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A 5.3.7 CONSULTANT shall meet with the CITY to review the estimate of probable construction cost. 5.3.8 Based on the approved Preliminary Design Documents the CONSULTANT shall finalize the building program for the Temporary Main Library Project in the range of 8,000 to 10,000 total square feet. 5.3.8.1 Provide dimensions and notes to describe the scale and principal features of the interior of the temporary facilities on the floor plans. The floor plans will show the desired location and approximate size of the new or relocated windows and doors. 6 PARTICIPATION 6.1 CONSULTANT shall at the CITY's direction make presentation(s) to the CITY's Commissions or Boards. 6.2 CONSULTANT shall at the CITY's direction make presentations to the CITY Council. 6.3 CONSULTANT shall at the CITY's direction conduct public meeting(s). III. SUPPLEMENTAL AND OPTIONAL ADDITIONAL SERVICES 1.0 SUPPLEMENTAL SERVICES The following services are not part of the CO.NS UL T ANT's Basic Services and shall be performed by the CONSULTANT as Supplemental Services as directed by the CITY. 1.1 LEED design or documentation for credits other than those identified in the LEED matrix included in the May 2008 Mitchell Park Library/Community Center Schematic Design Report. 1.2 Construction Administration services and Project Closeout Services for the Main Library Project. 1.3 FF&E and Signage services for the Main Library Project. 1.4 Construction Documents and Construction Administration Services for the Temporary Main Library Project. 2.0 OPTIONAL ADDITIONAL SERVICES The following services are not part of the CONS UL T ANT's Basic Services and shall be performed by the CONSULTANT as Additional Services only if and when Page 47 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 AMENDMENT THREE EXHIBIT A authorized by the CITY in writing: 2.1 Additional meetings or presentations. 2.2 Developing and preparation of information kiosks. 2.3 Developing a project flyers and public information posters. 2.4 Providing an architectural scaled presentation model. 2.5 Analyses of other sites or buildings. 2.6 Other participation services not described in Basic Services or Supplemental Services above. 2.7 Other services not specifically identified under Basic Services or Supplemental Services above. 2.8 Making changes in the design or documentation that is contrary to prior direction provided by the CITY. 2.9 Preparing bid alternates other than described in CONSULTANT's Basic Services. 2.10 Preparing CITY-initiated change orders during construction. 2.11 Providing more than two reviews of each subm ittal. 2.12 Detailed review of substitution request. 2.13 Work required to correct non-conforming work of contractor. 2.14 Increasing Professional Liability Insurance from the CONSULTANT's standard two million ($2,000,000) coverage. Page 48 of 48 CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE EXHIBIT "B" SCHEDULE OF PERFORMANCE CONSULTANT shall perfonn the Services so as to complete each milestone within the number of weeks specified below. The time to complete each milestone may be increased or decreased by mutual written agreement of the project managers for CONSULTANT and CITY so long as all work is completed within the tenn of the Agreement. CONSULTANT shall provide a detailed schedule of work consistent with the schedule below within 2 weeks of receipt of the notice to proceed. 100723 Milestones Completion No. of Weeks FromNTP MITCHELL PARK LffiRARYI COMMUNITY CENTER Task Dl: Design Development Task El: Construction Documents TaskFl: Bidding & Award Task G 1: Construction Administration Week 24 Week 50 (26 weeks from receipt of authorization to proceed from Design Development Task) Week 63 (13 weeks from receipt of authorization to proceed from Construction Documents Task) 104 weeks starting from General Contractors Authorization to Proceed Task HI: Project Closeout & Record Documents 90 days startingfrom General Contractors receipt of substantial completion. RENOVATED DOWNTOWN LIBRARY Task D2: Design Development Task E2: Construction Documents Task F2: Bidding & Award Week 22 Week 44 (22 weeks from receipt of authorization to proceed from Design Development Task) Week 53 Professional Services Revised 10/18/07 100723 CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE (9 weeks from receipt of authorization to proceed from Construction Documents Task) Task G2: Construction Administration 52 Weeks startingfrom GeneralContractors authorization to proceed. Task H2: Project Closeout and Record Documents 60 days startingfrom GeneralContractors receipt of substantial completion TEMPORARY MITCHELL PARK LIBRARY BUILDING Task D3: Schematic Design & Design Task E3: Plan Check Submittal 100% Permit Set Task F3: Bidding & Award Task G3: Construction Administration MAIN LIBRARY PROJECT Task D4: Design Development Task E4: Construction Documents Task E4.1: Plan Check Task F4: Bidding & Award 2 Week 13 from NTP August 17, 2009 September 14,2009 45 Days (from NTP for the additional scope added with Amendment #1) 90 Days (from NTP for the additional scope added with Amendment #1) Week 32 from NTP for Amendment 3 Week 64 (24 weeksfrom receipt of authorization to proceed from Design Development Task) City dependent based upon plan check review process. Week 57 (9 weeks from receipt of authorization to proceed from Construction Documents Task) Professional Services Revised 10/18/07 100723 CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE TEMPORARY MAIN LIBRARY BUILDING Task A5: Site Analysis Week 6 from NTP for Amendment 3 Task C5: Preliminary Design Documents Week 12 from NTP for Amendment 3. 3 Professional Services Revised 10/18/07 100723 CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE EXHIBIT "C" COMPENSATION The CITY agrees to compensate the CONSULTANT for professional services performed in accordance with the terms and conditions of this AgreemeJ?t, and as set forth in the budget schedule below. Compensation shall be paid to the CONSULTANT on a lump sum basis for Mitchell Park Library Task D 1, E 1, F 1, G 1, HI, Renovated Downtown Library Task D2, E2, F2, G2, and H2, renovation and addition to Main Library Task D4, E4, E4.1, and F4. Compensation for Temporary Mitchell Park Library Task D3, E3, F3, and G3, and Temporary Main Library Building Task A5 and C5 shall be calculated based on the hourly rate schedules attached as Exhibit C-l up to the Not to Exceed amount set forth below. Compensation for Participation Task D4 shall be on a per meeting basis as indentified in attached Exhibit C-l up to the Not to Exceed amount set forth below. The compensation to be paid to CONSULTANT under this Agreement for all services described in Exhibit "A", ("Basic Services") and reimbursable expenses shall not exceed $6,771,606.00 . CONSULTANT agrees to complete all Basic Services, including reimbursable expenses, within this amount. In the event CITY authorizes any Additional Services, the maximum compensation shall not exceed $7,423,710.00. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. CONSULTANT shall perform the tasks and categories of work as outlined and budgeted below. The CITY's project manager may approve in writing the transfer of budget amounts between any of the tasks or categories listed below provided the total compensation for Basic Services, including reimbursable expenses, does not exceed $6,771,606.00 and the total compensation for Additional Services does not exceed $652,104.00. BUDGET SCHEDULE NOT TO EXCEED AMOUNT BASIS MITCHELL PARK LIBRARY/COMMUNITY CENTER Task Dl $845,456 (Design Development) TaskEl (Construction Documents) TaskFl (Bidding & Award) Task Gl (Construction Administration, FFE & Signage) Task Gl (Project Closeout & Record Documents) $1,882,656 $150,437 $1,156,517 $143,339 Lump Sum Lump Sum Lump Sum Lump Sum Lump Sum Professional Services Revised 10/18/07 100723 CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE RENOVATED DOWNTOWN LffiRARY TaskD2 (Design Development) TaskE2 (Construction Documents) TaskF2 (Bidding & Award) TaskG2 (Construction Administration) Task G2.1 (LEED Design & Documentation) TaskG2.2 (Furniture) TaskH2 (Project Closeout and Record Documents) TEMPORARY MITCHELL PARK LIBRARY TaskD3 (Schematic Design & Design Build Bid Package) TaskE3 (Construction Documents) TaskF3 (Bidding & Award) Task G3 (Construction Administration) MAIN LIBRARY PROJECT TaskD4 (Design Development) TaskE4 (Construction Documents) TaskF3 (Bidding & Award) 2 $88,383 $227,882 $14,941 $146,100 $81,796 $20,000 $25,500 $12,688 $95,916 $9,440 $24,415 $488,307 $784,359 $90,749 Lump Sum Lump Sum Lump Sum Lump Sum Lump Sum Lump Sum Lump Sum Time & Materials to a maximum Lump Sum Lump Sum Lump Sum Lump Sum Lump Sum Lump Sum Professional Services Revised 10/18/07 CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE TEMPORARY MAIN LmRARY TaskA5 & C5 (Site Analysis & Prelim Design Documents) PARTICIPATION TaskD4 (Participation) Sub-total Basic Services Reimbursable Expenses $39,725 $150,000 T &M to a maximum Rate Schedule, Not to Exceed $6,478,606 $293,000 Total Basic Services and Reimbursable expenses $6,771,606 Additional Services (Not to Exceed) Mitchell Park Library: Downtown Library Temporary Library Main Library: Temporary Main Library: Maximum Total Compensation $433,840 $56,000 $15,600 $141,342 $5,322 $652,104 $7,423,710 REIMBURSABLE EXPENSES 100723 The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. CITY shall reimburse CONSULTANT for the following reimbursable expenses at cost not to exceed the total amount shown above. Expenses for which CONSULTANT shall be reimbursed are: • Outside service printing/copying of drawings and documents of any size. • In-house printing of CAD check sets and presentation drawings larger than II"x 17": $2.00 per square foot. 3 Professional Services Revised 10/18/07 • • • • • • • • • • • • CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE In-house black & white photocopying for draft and final reports and specifications: $.20 per page. In-house color and grayscale printing and photocopying up to II"x 17" for in-house, consultant or client use: $1.25 per page. Software purchase and licensure on behalf of the client. Postage, delivery and messenger service. Photographic and digital imaging. Architectural renderings and scale models. Travel expenses Subconsultant costs over and above those included in Basic Services. Presentation boards. Facilitation tools. Workshop accessories. Workshop facilitation materials All requests for payment of expenses shall be accompanied by appropriate backup information. Any expense anticipated to be more than $1,000.00 shall be approved in advance by the CITY's project manager. ADDITIONAL SERVICES 100723 The CONSULTANT shall provide additional services only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY's project manager's request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT's proposed maximum compensation, including reimbursable expense, for such services based on the rates set forth in Exhibit C-1. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY's project manager and CONSULTANT prior to commencement ofthe services .. Payment for additional services is subject to all requirements and restrictions in this Agreement Work required because the following conditions are not satisfied or are exceeded shall be considered as additional services. 1. If any of the following circumstances affect the CONSULTANT's services for the Project, the CONSULTANT may be entitled to an appropriate adjustment in the CONSULTANT's schedule and compensation: a. Change in the instructions or approvals given by the CITY that necessitate revisions in design drawings and which are not caused by CONSULTANT's negligence; b. Enactment or revision of codes, laws, or regulations or official interpretations which necessitate significant changes to previously prepared drawings; c. Material delay caused by the CITY beyond CONSULTANT's reasonable control.; d. Significant change in the Project including, but not limited to, size, complexity, the Owner's schedule or budget, or procurement method; e. Preparation for and attendance at a dispute resolution proceeding or a legal proceeding except where the CONSULTANT is a party thereto; 4 Professional Services Revised 10/18/07 100723 CITY OF PALO ALTO CONTRACT NO. C09130744 -AMENDMENT THREE f. Substantial change in the information contained in Exhibit A. Additional services may also include, meetings exceeding those outlined in Exhibit A as Basic Services. 5 Professional Services Revised 10/18/07 \ "ATTACHMENT C CITY OF PALO ALTO CONTRACT NO. CI0131631 -AMENDMENT TWO AMENDMENT NO. 2 TO CONTRACT NO. CI0131631 BETWEEN THE CITY OF PALO ALTO AND TURNER CONSTRUCTION COMPANY This Amendment No. 2 to contract No. CI0131631 ("Contract") is entered into , 2010, by and between the CITY OF PALO ALTO, a California Charter City ("CITyn), and TURNER CONSTRUCTION COMPANY, a corporation in the state of New York with offices located at 60 South Market Street, Suite 1100, San Jose, CA 95113 ( II CONSULTANT II) . R E CIT A L S: WHEREAS, the Contract was entered into between the parties for the provision of professional consulting to provide construction management services relating to the demolition of the existing library and community center at Mitchell Park and the construction of a new joint library and community center, and rehabilitation of the Downtown Library, and during the design -of the Main Library ("Project"); and increase WHEREAS, the the scope of compensation; parties wish to amend the Contract to services, schedule of performance, and NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Amendment, the parties agree: SECTION 1. Section 1, SCOPE OF SERVICES, is hereby amended to add the following: "CONSULTANT shall perform the Services described in Exhibit "A", as revised in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY." SECTION 2. Section 3, SCHEDULE OF PERFORMANCE, first paragraph is hereby amended to add the following: "Time is of the essence in the performance of services. CONSULTANT shall complete the Services within the term of this Agreement and in accordance with the schedule set forth in Exhibit "B", as revised attached to and made a part of this Agreement. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY's agreement to extend the term or the schedule for performance shall not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT" ,. 1 'USERS/OFFICE FORMS/City Approved Contracts 3/20/07 (REV) CITY OF PALO ALTO CONTRACT NO. C10131631 -AMENDMENT TWO SECTION 3. Section 4, NOT TO EXCEED COMPENSATION, is hereby amended to read as follows: "The compensation to be paid to CONSULTANT for performance of the Services described in Exhibits "A", including both payment for professional services and reimbursable expenses, shall not exceed three million two hundred fifty-four thousand three hundred thirty- seven dollars ($3,254,337.00). In the event Additional Services are authorized, the total compensation for services and reimbursable expenses shall not exceed three million five hundred seventy-eight thousand four hundred forty-eight dollars ($3,578,448.00). The applicable rates and schedule of payments are set out in Exhibit "C" and "C-l", as revised which are attached to and made a part of this Agreement." Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit "C" and Exhibit "C-l". CONSULTANT shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. Additional Services shall mean any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described in Exhibit "A"." SECTION 4. The following exhibit(s) to the Contract are hereby amended to read as set forth in the attachment(s) to this Amendment, which are incorporated in full by this reference: EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": SCOPE OF SERVICES SCHEDULED OF PERFORMANCE COMPENSATION 2 S:ATT/USERS/OFFICE FORMS/City Approved Contracts 3/20/07 (REV) CITY OF PALO ALTO CONTRACT NO.: Cl0131631-AMENDMENT TWO EXHIBIT "A" SCOPE OF SERVICES 1. INTRODUCTION In November 2008, voters approved Measure N, which provided for the upgrade, replacement and/or expansion of three libraries in Palo Alto. These libraries are the Downtown Library, the Mitchell Park Library and Community Center (MPLCC) and the Main Library. Environmental clearance has been completed and approved for the three sites. The design plans, which are currently approximately 50 percent complete, have been reviewed by City boards and commissions and have been presented to the community, although additional public meetings are scheduled. Downtown LibrarY Improvements to the Downtown Library, located at 270 Forest Ave, consist primarily of accessibility improvements, code required upgrades, electrical and mechanical systems upgrades, and interior space remodeling. The estimated 2008 construction cost was $2.4 million which was based upon 35% completed plans. The construction cost estimate excludes design costs, contingency, inflation escalation, permits, testing, fixtures and furnishing. Environmental clearance has been completed and approved for the project. The Downtown Library will not be a certified LEED building but will follow the City's Green Building Policy and submittal requirements. Mitchell Park LibrarY and Community Center The existing Mitchell Park Library building is located at 3700 Middlefield Road and the adjacent Community Center building is located at 3800 Middlefield Road. The existing library building is less than 10,000 square feet. The existing community center building is approximately 10,000 square feet. Construction will entail demolition and removal of the existing buildings and parking lots, construction of a combined library and community center building and associated site amenities including parking. The new building's total area will be approximately 51,000 square feet, of which 36,000 square feet will be a two-story library and 15,000 square feet will be a single-story community center around a heritage oak tree. The 2008 estimated construction cost was $28.1 million which was based upon the 35% plan design. The construction cost estimate excludes design costs, contingency, inflation escalation, permits, testing, fixtures and furnishing. The MPLCC will be designed to u.s. Green Building Council's Leadership in Energy Efficiency and Design (LEED ®) Gold standard. During construction, the library services and the community center will be relocated to a temporary facility or facilities. Design of the temporary facility is underway and construction management services for that facility will be performed by Public Works staff. Main LibrarY (Potential Future Phase) Constmction management services for the Main Library are not included at this time, as design of improvements to the Main Library will not begin until approximately early 2011. The City Page 1 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO reserves the right to negotiate a fee for and enter into a contract (amendment) with Turner Construction Company (hereinafter "Consultant") for these services, or to issue a new Request for Proposals for the services. The Main Library, located on Newell Road, will have both an interior renovation and an expansion. The renovation to the existing historic structure will consist of seismic, accessibility, and systems upgrades as well as minor expansions and reconfigurations. In addition, a detached building of approximately 4,500 square feet will be constructed. The 2008 estimated construction cost was $9 million which was based upon the 35% plan design. The construction cost estimate excludes design costs, contingency, inflation escalation, permits, testing, fixtures and furnishing. 2. SCOPE OF SERVICES All work described below will be done in conjunction with the City's ongoing review and approval process for the projects described above. The Consultant's services shall include full Construction Management Services as required to assist staff in the management of the design and construction of the above projects. If at any time, the City is not satisfied with the performance of Consultant's staff, the City reserves the right to request the services of a different individual. If for any reason the Consultant proposes a change of staffing during the course of the project, the City reserves the right to approve any new staff. Additional Services must be approved in advance of services, in writing, by the City Project Manager. Office space, computers, cell phones, furnishings and other equipment needed for Consultant's staff shall be provided by the Consultant. These costs shall be included in the Consultant fee proposal. Downtown Library Phase I -Design Phase Staff support for this library will be primarily by City staff. During the design phase, Consultant services are primarily required for specialty (mechanical, electrical) and for pre-qualifiction of contractors and key subcontractors. A. Preconstruction Document and Constructability review Consultant shall: • become familiar with the project history, plans, and specifications. • review plans, specifications and ,cost estimates submitted for City review. Review by Consultant shall be performed by engineers or contractors who have experience in relevant fields. Review of documents shall be done at the current and 100% completion stage of Design Development and at 60%, 95% and 100% of Construction Development. • provide a constructability review for the project documents and make appropriate cost andlor time-savings recommendations to the City. • provide an independent opinion of probable cost. Page 2 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO • analyze and document the costs and benefits associated with combining construction of the Downtown Library with the MPLCC. • coordinate as-needed and directed with the Architect/Engineers CAE) firm, City staff, City boards and commission members, and community members. • assist the City's Contracts Manager with the preparation of the "Instructions to Bidders" which will define the scope of work that must be included in the bid packages and other related bid documents needed to ensure a complete bid package. The AE will prepare technical specifications. • become familiar with the various City department functions and requirements for project coordination. Contractor and Key Subcontractor Pregualification Prior. to the construction bid phase, the Consultant shall prepare,and obtain approval from the City of Palo Alto, to advertise forms required for Contractor and key subcontractor Prequalification. Consultant shall administer the feedback from same, including but not limited to: answering questions from contractors and subcontractors, coordinating responses with the City's Purchasing Division, preparing spreadsheets or other documentation necessary to compile and compare contractor responses, preparing a recommended bidder's list with a brief report summarizing findings, assisting in representing the City in any subsequent hearings challenging the validity of the results and any follow-up documentation resulting from said hearings. The City Purchasing Division will verify Consultant's recommendation in order to finalize the ~~~a ., Additional Services Additional Services include, but are not limited to, attendence at meetings, value engineering, calculations and reimbursable expenses not included in the base fee. Phase II -Construction Phase Services -Downtown Library A. Turner Staff Services General: Consultant shall be the point of contact for the project's contractor (Contractor), and shall endeavor to enforce compliance with all of Contractor's contractual requirements, as follows: Daily Construction Management: Consultant shall oversee the day-to-day construction work performed by the Contractor. Consultant shall track the construction process, logistics, Request For Information (RFI), Change Order (CO) and other information or requests. Consultant shall oversee the construction activities and ensure that all aspects of LEED ® construction requirements are followed and documented and shall work closely with the project's Commissioning Agent and design consultant, Group 4 Architecture (ARCHITECT), in that regard. City shall approve Additional Services requests and other items that are part of the City's contract with the ARCHITECT firm. Consultant shall work with the Contractor and any involved parties to implement logistical and communications measures to minimize any impacts to the nearby residential neighborhood, park, fire station, and the various pre-school, elementary, middle, special needs, and charter schools on that block. Consultant shall implement expeditious methods for resolving conflicts. Consultant shall handle the coordination between the City staff, Contractor, and ARCHITECT. Page 3 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO If night time, holiday or weekend work is required periodically to minimize impacts or due to delay in schedule, Consultant services shall still be required in full effect, but will be compensated as additional services, for costs incurred. Consultant shall assume that the third Monday in January (Martin Luther King Day), the second Monday in October (Columbus Day) and November 11 (Veteran' s Day) of each year shall be a working day for the contractor and for the Consultant. December 24 (Christmas Eve) and the Friday following Thanksgiving Day (the fourth Thursday in November) shall also be considered to be regular working days. Consultant shall install, advertise, and maintain a hot-line for community updates, questions, and complaints. Advertisement, equipment and other related costs shall be included in the Reimbursables cost section below. Consultant shall liaison with City staff and assist Contractor as-needed in the connection of a Contractor-installed video camera(s) that will be connected to a website to monitor site progress. Documentation: Consultant shall oversee and manage the Contractor's preparation and/or review of all necessary documentation for the project including, but not limited to, daily logs and inspection progress reports, photos/videos, RFI, correspondence, shop drawings, and other contractor submittals. Consultant shall maintain ,all files and documentation related to managing the project. Consultant shall track all RFI, correspondence, and submittal status. Responses, approvals, and decisions relative to Contractor's documents shall be provided in a timely manner and as required in the construction documents. Consultant shall review and comment on any project-related correspondence as requested by the City. Routine correspondence that is related to product information or minor design issues may be prepared and answered by Consultant on its letterhead, with a copy of the response directed to PM and ARCHITECT. Correspondence requiring City response, including but not limited to correspondence with residents, cost or contractual issues, may be drafted by Consultant but shall be signed only by City. Submittals: Consultant shall manage, log and track all project submittals (i.e. shop drawings, product information, substitution request, and samples) for approval in timely manner as required by the construction documents and in order to prevent any delays to the project. Comments from different reviewers of the submittal shall be compiled before being returned to the Contractor for revisions. All submittals shall be sent directly between the Contractor and the Design team, with copies, documentation and management reports submitted to and managed by the Consultant. Construction Schedule: Consultant shall review the Contractor's construction schedule. Consultant shall analyze, monitor, and request updates for the master schedule as the project progresses. Consultant shall analyze the schedule for logical construction, constraints, level of critical activities and to verifY progress in conjunction with the analysis of pay applications. Consultant shall review Contractors' individual Critical Path Method (CPM) schedules, monitor the contractor's progress, notifY the City of any slippage, and coordinate contractor recovery plans. Progress Payments: Consultant shall review progress payment requests submitted by Contractor, within five (5) days of receipt and verifY the accuracy and percentage of completion against the schedule, and resolve any discrepancies in the invoices. Consultant shall review the invoices and backup for completeness and compliance with contract documents and make a recommendation to PM for payment of the progress payment requests. Page 4 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO Change Order Monitoring and Processing: Consultant shall review and evaluate all Contractor extra work requests. Consultant shall review the contract documents to determine entitlement, complete an independent estimate of the cost of the changes, and reconcile with the contractor's change order request. Consultant shall prepare contract change order authorizations for City approval and track all scope and schedule changes. Consultant shall also implement expeditious methods for resolving conflicts. Claims: Consultant shall analyze any claims from the contractors (i.e., compensation and delay) as to whether they are excusable, inexcusable, or compensable and prepare a response for City. Meetings: Throughout the construction process, Consultant shall be prepared to address comments and concerns of the construction contractors, ARCHITECT, PM, the City Staff, and the general public on an as-needed basis. Consultant shall set up and conduct weekly progress meetings and any other meetings necessary to facilitate the project work. Consultant shall write and distribute the meeting agendas, and meeting minutes, including: City-Consultant meetings, regular site meetings, and meetings with the City staff, contractors, various City departments, and also the public. The meeting minutes will explicitly track who has the responsibility for each action item with expected completion dates. Consultant shall coordinate the logistics related to a ground-breaking and to a ribbon-cutting ceremony, including working with committees, identifying power sources, etc. Costs for beverages, materials, photographs shall not be the responsibility of the Consultant. Soils-related testing shall be under the Consultant's contract. Physical oversight of the geotechnical aspects of the construction project shall be contracted by the ARCHITECT firm. Miscellaneous: Consultant shall monitor Contractor's compliance in general with the construction documents and contract. Consultant shall address comments and concerns of the contractors and the ARCHITECT as needed. During construction, the Consultant's office space shall be provided, maintained and removed by the Contractor, including offices, furniture and office equipment. Quality Control and Assurance: Consultant shall monitor and document the Contractors' work for any deviations in scope, schedule, or performance and keep the City informed of and assist in resolving any issues that may arise. Record Drawings: Consultant shall coordinate the preparation of record drawings with the Contractors and ARCHITECT on a regular basis, both during the construction and post construction phases, and review the drawings for "as-built" accuracy. Training: Consultant shall set up and coordinate contractor-provided training of City staff as required by the contract documents and as necessary to ensure that the appropriate City personnel are adequately trained and familiar with the new equipment and systems. Commissioning: Consultant shall work with the commissioning agent, design consultants, and the Contractors to ensure that all new equipment have been installed in accordance with the contract documents, are working properly as stand-alone equipment, and are working properly as part of a complete system. Page 5 of 19 CITY OF PALO ALTO CONTRACT NO.: Cl0131631-AMENDMENT TWO Substantial Completion: As per the construction contract, once the Contractor requests substantial completion and it is determined to be warranted, Consultant shall prepare and compile a project punch list with the assistance from the City and ARCHITECT to be forwarded to the Contractor. Consultant shall oversee the completion of the punch list items before the final notice of completion is issued. As-Built drawings shall be scanned by Consultant for archiving by City. Close Out: Consultant shall ensure completion and delivery of all required close out documentations including operation and maintenance (O&M) manuals, record drawings, and warranties. Consultant shall review all these materials for compliance with the contract documents and for completeness, and report any deficiencies or discrepancies to Contractor for corrections and re-submittal. Consultant shall work under the direction of the Project Manager to resolve any contract claim issues that may arise (stop work notices, bonding, delays, extra work, etc). Files: Consultant shall consolidate and deliver all project files and documentation maintained to be retained by the City B. Testing Laboratories and Special Inspections: Testing and Special Inspections: A testing agency shall be under contract with and paid for by the Consultant. Consultant shall coordinate with the Contractor in scheduling the testing agency services for materials testing and special inspections needed for the life of the project. This testing includes, but is not limited to, collecting and running geotechnical tests, concrete strength and weld inspection. Consultant shall ensure that all required sign-offs are reviewed and distributed and are in compliance with the specifications and the California Building Codes. Geotechriical Engineering is included by the Architect, and is not included by the Consultant. C. Electronic Documents: Electronic Documents: Consultant shall provide electronic, fully addressable and cross referenced electronic document filing system. It will be developed and used as the project filing system during construction and will be updated with all closeout documentation, and cross referenced for simple search and retrieve functionality for all project documentation for City's use after construction. Consultant will provide Labor to input all documentation, and to train City in the use and access to all electronic project files. Any monthly service fees shall be included herein and not in Reimbursables. D. Additional Services: Additional Services: Include, but are not limited to, additional meetings; additional public outreach, unforeseen testing or inspection needs. E. Reimbursables: Reimbursables: Travel and meal expenses shall not be Reimbursable items but shall be considered as included in the fee for associated work items. Any temporary trailers, computers, copiers, printers and office supplies are not considered as a Reimbursable expense, but will be provided to the Consultant under the Contractor's Contract. City may, at its option, provide Page 6 of 19 CITY OF PALO ALTO CONTRACT NO.: Cl0131631-AMENDMENT TWO working space and computer connection for Consultant. Printing of plans and specifications shall be paid by City. Consultant shall, at the direction of the Project Manager, install, advertise, and maintain a hot- line for community updates, questions, and complaints. Printing of flyers, presentation boards, advertisement, equipment and other related outreach material costs shall considered a Reimbursable expense, the cost for which shall be approved in writing in advance by the Project Manager. Phase III-Post Construction Services -Downtown F. Post Construction Services Post Construction and Warranty Services: Consultant shall meet with Library, Community Services and Public Works staff (Staff) monthly for three months commencing after the building is open to the public in order to complete any remaining punch-list items and/or to contact the Contractor for any warranty issues that might arise. After the initial three month period, Consultant shall contact the Staff quarterly for a period of nine months to determine whether any new building or systems issues have been identified. Systems deficiencies that cannot be resolved by the Contractor shall be reported to the Commissioning Agent. Commissioning Verification: Consultant shall participate in the post-construction activities of the Commissioning Agent as follows: Participate in an off-season testing (i.e., testing the heating system prior to winter) session and work with the Contractor to correct any deficiencies. Compile the final testing documentation for the Commissioning Record and O&M manuals. Return to the site at month 10 of the 12 month warranty period and review operating conditions with City facility staff and the Commissioning Agent in order to identify any outstanding issues related to the original and seasonal commissioning. The Commissioning Agent will interview facility staff and identify problems or concerns that they have with operating the building as originally intended. The Commissioning Agent will make suggestions for improvements and for recording these changes in the O&M manuals. The Commissioning Agent will identify areas that may come under warranty or under the original construction contract. The Construction Management Consultant shall work with the Contractor to resolve any warranty issues. Mitchell Park Library and Community Center Phase I -Design Phase A. Preconstruction Document and Constructability review Consultant shall: • become familiar with the project history, plans and specifications • review plans, specifications and prepare cost estimates submitted for City review. Review by Consultant shall be performed by engineers or contractors who have experience in relevant fields. Review of documents shall be done at the current and 100% completion stage of Design Page 7 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO Development and at 60%, 95% and 100% of Construction Development. • provide a constructability review for the project documents and make appropriate cost and/or time-savings recommendations to the City. • provide an independent opinion of probable construction cost. • coordinate as-needed and directed with the Architect/Engineers (AE) firm, City staff, City boards and commission members and community members. • assist the City's Contracts Manager with the preparation of the "Instructions to Bidders" which will define the scope of work that must be included in the bid packages and other related bid documents needed to ensure a complete bid package. The AE will prepare technical specifications. • become familiar with the various City department functions and requirements for project coordination. Community Outreach The Consultant shall collect infonnation and prepare community, City Manager, oversight committee, boards and commission and any other needed updates, presentations or reports not provided by the AE. The Consultant shall attend community meetings to update various civic orginazations (Kiwanas, school groups, etc.) or community meetings on the project progress. Fee for this service shall be included in 'Meetings'. Seven public meetings are currently scheduled from Sept 22,2009 through January 26, 2010, however, Consultant shall budget for up to five (5) additional public meetings. Contractor and Key Subcontractor Prequalification Prior to the construction bid phase, the City shall prepare, with City of Palo Alto approval, and advertise fonns required for Contractor and key subcontractor Prequalification. Consultant shall administer the feedback from same, including but not limited to: answering questions from contractors and subcontractors, coordinating responses with the City's Purchasing Division, preparing spreadsheets or other documentation necessary to compile and compare contractor responses,prepare a recommended bidder's list with a brief report summarizing findings, assist in representing the City in any subsequent hearings challenging the validity of the results, and any follow-up documentation reSUlting from said hearings. Bidding: Consultant shall organize and manage contractor participation. Consultant shall review the contractor bids for compliance with the technical portions of the bid requirements as set forth in the specifications and make a recommendation for award or rejection. Consultant shall assist with the bid period work items including clarifications, and bid evaluation relative to the contract documents. Consultant shall review the subcontractor list for completeness and compliance with the bid documents. The City Purchasing Division will verify Consultant's recommendation in order to finalize the decision. Pre-bid Conference and Pre-construction Meeting: Consultant shall coordinate and facilitate the Pre-bid Conference and Pre-construction Meeting including preparation of the agendas and meeting minutes Addenda: If changes to the construction documents are required during the bidding period, Consultant shall prepare the addenda items with the assistance from the AE. The City will issue the addenda. Page 8 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO Budget: Consultant shall work with the City to develop a construction budget format and tracking system. Hazardous Material Abatement: Hazardous materials may be removed from the existing structures prior to their demolition (under City contract) or may be included as part of the construction bid package. Consultant shall assume that the abatement will be done by City contract and Consultant shall prepare, assist in the bidding of and coordinate the remediation contract. A third party consultant shall be employed by the City to survey, test, develop and implement removal procedures, monitor abatement and report. Relocation of Existing Library Services . The Consultant shall provide CM Services to support the City of Palo Alto in relocating library services to a temporary facility. It is estimated the move coordination for the Consultant will last approximately 3 weeks. Meetings: Throughout the design process, Consultant shall be prepared to address comments and· concerns of the contractors interested in bidding on the project, AE, City Staff, boards and commissions and the general public on an as-needed basis. Consultant shall schedule and conduct weekly progress meetings and any other meetings necessary to facilitate the project work. City will provide the administrative support to provide a meeting room and invite attendees. Consultant shall write and distribute the meeting agendas, and meeting minutes, including: City-Consultant meetings, regular site meetings, and meetings with the City staff, contractors, various City departments and also the public. The meeting minutes will explicitly track who has the responsibility for each action item with expected completion dates. Additional Services Additional Services include, but are not limited to, attendence at meetings, value engineering, calculations and reimbursable expenses not included in the base fee. Phase II -Construction Phase Services -MPLCC A. Turner Staff Services General: Consultant shall be the point of contact for the project's contractor (Contractor), and shall endeavor to enforce compliance with all of Contractor's contractual requirements, as follows: Daily Construction Management: Consultant shall oversee the day-to-day construction work performed by the Contractor. Consultant shall track the construction process, logistics, Request For Information (RFI), Change Order (CO) and other information or requests. Consultant shall oversee the construction activities and ensure that all aspects of LEED ® construction requirements are followed and documented and shall work closely with the project's Commissioning Agent and design consultant, Group 4 Architecture (ARCHITECT), in that regard. City shall approve Additional Services requests and other items that are part of the City's contract with the ARCHITECT firm. Page 9 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO Consultant shall work with the Contractor and any involved parties to implement logistical and communications measures to minimize any impacts to the nearby residential neighborhood, park, fire station, and the various pre-school, elementary, middle, special needs, and charter schools on that block. Consultant shall implement expeditious methods for resolving conflicts. Consultant shall handle the coordination between the City staff, Contractor, and ARCHITECT. If night time, holiday or weekend work is required periodically to minimize impacts or due to delay in schedule, Consultant services shall still be required in full effect, but will be compensated as additional services, for costs incurred. Consultant shall assume that the third Monday in January (Martin Luther King Day), the second Monday in October (Columbus Day) and November 11 (Veteran's Day) of each year shall be a working day for the contractor and for the Consultant. December 24 (Christmas Eve) and the Friday following Thanksgiving Day (the fourth Thursday in November) shall also be considered to be regular working days. Consultant shall install, advertise, and maintain a hot-line for community updates, questions, and complaints. Advertisement, equipment and other related costs shall be included in the Reimbursables cost section below. Consultant shall liaison with City staff and assist Contractor as-needed in the connection of a Contractor-installed video camera(s) that will be connected to a website to monitor site progress. Field Inspection and Supervision: For Mitchell Park Library and Community Center, the Consultant, whose title shall be CM Field Superintendent (CMFS), shall maintain a field presence whenever work is under way by the Contractor. The role of the CMFS will be to enforce the Contract daily in the field to ensure that the work is being constructed in compliance with the contract documents, the approved shop drawings, the current RFI answers, etc, and in general, to protect the interest of the City of Palo Alto daily in the field. The CMFS will also observe and report daily field problems with respect to quality, cost and schedule. The CMFS will develop and maintain deficiency, incomplete work item, and preliminary punch list reports and will maintain a daily construction report, as the daily history of the project, to include significant jobsite field events that occur each day. The CMFS will not be responsible for means and methods of the general Contractor, nor for safety of any of the contractor's employees, but will have the authority, but not the responsibility, to observe and report concerns with regard to such issues. Documentation: Consultant shall oversee and manage the Contractor's preparation and/or review of all necessary documentation for the project including, but not limited to, daily logs and inspection progress reports, photos/videos, RFI, correspondence, shop drawings, and other contractor submittals. Consultant shall maintain all files and documentation related to managing the project. Consultant shall track all RFI, correspondence, and submittal status. Responses, approvals, and decisions relative to Contractor's documents shall be provided in a timely manner and as required in the construction documents. Consultant shall review and comment on any project-related correspondence as requested by the City. Routine correspondence that is related to product information or minor design issues may be prepared and answered by Consultant on its letterhead, with a copy of the response directed to PM and ARCHITECT. Correspondence requiring City response, including but not limited to correspondence with residents, cost or contractual issues, may be drafted by Consultant but shall be signed only by City. Page 10 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO Submittals: Consultant shall manage, log and track all project submittals (i.e. shop drawings, product information, substitution request, and samples) for approval in timely manner as required by the construction documents and in order to prevent any delays to the project. Comments from different reviewers of the submittal shall be compiled before being returned to the Contractor for revisions. All submittals shall be sent directly between the Contractor and the Design team, with copies, documentation and management reports submitted to and managed by the Consultant. Construction Schedule: Consultant shall review the Contractor's construction schedule. Consultant shall analyze, monitor, and request updates for the master schedule as the project progresses. Consultant shall analyze the schedule for logical construction, constraints, level of critical activities and to verify progress in conjunction with the analysis of pay applications. Consultant shall review Contractors' individual Critical Path Method (CPM) schedules, monitor the contractor's progress, notify the City of any slippage, and coordinate contractor recovery plans. Progress Payments: Consultant shall review progress payment requests submitted by Contractor, within five (5) days of receipt and verify the accuracy and percentage of completion against the schedule, and resolve any discrepancies in the invoices. Consultant shall review the invoices and backup for completeness and compliance with contract documents and make a recommendation to PM for payment of the progress payment requests. Change Order Monitoring and Processing: Consultant shall review and evaluate all Contractor extra work requests. Consultant shall review the contract documents to determine entitlement, complete an independent estimate of the cost of the changes, and reconcile with the contractor's change order request. Consultant shall prepare contract change order authorizations for City approval and track all scope and schedule changes. Consultant shall also implement expeditious methods for resolving conflicts. Claims: Consultant shall analyze any claims from the contractors (i.e., compensation and delay) as to whether they are excusable, inexcusable, or compensable and prepare a response for City. Meetings: Throughout the construction process, Consultant shall be prepared to address comments and concerns of the construction contractors, ARCHITECT, PM, the City Staff, and the general public on an as-needed basis. Consultant shall set up and conduct weekly progress meetings and any other meetings necessary to facilitate the project work. Consultant shall write and distribute the meeting agendas, and meeting minutes; including: City-Consultant meetings, regular site meetings, and meetings with the City staff, contractors, various City departments, and also the public. The meeting minutes will explicitly track who has the responsibility for each action item with expected completion dates. Consultant shall coordinate the logistics related to a ground-breaking and to a ribbon-cutting ceremony, including working with committees, identifying power sources, etc. Costs for beverages, materials, photographs shall not be the responsibility of the Consultant. Consultant shall, at the direction of the Project Manager, install, advertise, and maintain a hot- line for community updates, questions, and complaints. Printing of flyers, presentation boards, advertisement, equipment and other related outreach material costs shall considered a Reimbursable expense, the cost for which shall be approved in writing in advance by the Project Manager. Page 11 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO Miscellaneous: Consultant shall monitor Contractor's compliance in general with the construction documents and contract. Consultant shall address comments and concerns of the contractors and the ARCHITECT as needed. During construction, the Consultant's office space shall be provided, maintained and removed by the Contractor, including offices, furniture and office equipment. Quality Control and Assurance: Consultant shall monitor and document the Contractors' work for any deviations in scope, schedule, or performance and keep the City informed of and assist in resolving any issues that may arise. Record Drawings: Consultant shall coordinate the preparation of record drawings with the Contractors and ARCHITECT on a regular basis, both during the construction and post construction phases, and review the drawings for "as-built" accuracy. Training: Consultant shall set up and coordinate contractor-provided training of City staff as required by the contract documents and as necessary to ensure that the appropriate City personnel are adequately trained and familiar with the new equipment and systems. Commissioning: Consultant shall work with the commissioning agent, design consultants, and the Contractors to ensure that all new equipment have been installed in accordance with the contract documents, are working properly as stand-alone equipment, and are working properly as part of a complete system. Substantial Completion: As per the construction contract, once the Contractor requests substantial completion and it is determined to be warranted, Consultant shall prepare and compile a project punch list with the assistance from the City and ARCHITECT to be forwarded to the Contractor. Consultant shall oversee the completion of the punch list items before the final notice of completion is issued. Close Out: Consultant shall ensure completion and delivery of all required close out documentations including operation and maintenance (O&M) manuals, record drawings, and warranties. Consultant shall review all these materials for compliance with the contract documents and for completeness, and report any deficiencies or discrepancies to Contractor for corrections and re-submittal. Consultant shall work under the direction of the Project Manager to resolve any contract claim issues that may arise (stop work notices, bonding, delays, extra work, etc). As-Built drawings shall be scanned by Consultant for archiving by City. Files: Consultant shall consolidate and deliver all project files and documentation maintained to be retained by the City. Additional Services: Include, but are not limited to, additional meetings, additional public outreach, unforeseen testing or inspection needs. Reimbursables: Travel and meal expenses shall not be Reimbursable items but shall be considered as included in the fee for associated work items. Temporary trailers, computers, copiers, printers and office supplies are not considered as a Reimbursable expense, but will be provided to the Consultant under the Contractor's Contract. Printing of plans and specifications shall be paid by City. Printing of flyers, presentation boards, telephone hotlines and other communication materials needed to fulfill outreach as described herein shall be budgeted for Page 12 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO and provided as a Reimbursable item by Consultant. Job site safety fencing is a reimbursable expense. B. Testing and Special Inspections Testing and Special Inspections: A testing agency shall be under contract with and paid for by the Consultant. Consultant shall coordinate with the Contractor in scheduling the testing agency services for materials testing and special inspections needed for the life of the project. This testing includes, but is not limited to, collecting and running geotechnical tests, concrete strength and weld inspection. Consultant shall ensure that all required sign-offs are reviewed and distributed and are in compliance with the specifications and the California Building Codes. Geotechnical Inspections are included by the Architect, and are not included by the Consultant. Building Code Inspection Services -Mitchell Park Library and Community Center: Consultant shall provide all building code inspection services for construction phases for the Mitchell Park Library and Community Center. Inspectors shall have a minimum of 5 years of experience as inspectors and be certified by the International Code Council (ICC) or International Building Code Officials (IBC) as inspectors. The City reserves the right to review the qualifications of the inspectors, approve their working on the project, and to request a change of inspectors at any time. Soils-related testing shall be under the Consultant's contract. Physical oversight of the geotechnical aspects of the construction project shall be contracted by the ARCHITECT firm. C. -Electronic Documentation and Photograph Recording Electronic Documents: Consultant shall provide electronic, fully addressable and cross referenced electronic document filing system. It will be developed and used as the project filing system during construction and will be updated with all closeout documentation, and cross referenced for simple search and retrieve functionality for all project documentation for City's use after construction. Consultant will provide Labor to input all documentation, and to train City in the use and access to all electronic project files. Any monthly service fees shall be included herein and not in Reimbursables. Project Documentation -Photographic Record: Based upon a build period of twenty three (23) months, provide a photographic pre-construction site-survey of existing conditions; twenty three (23) maximum exterior progressions; interior progressions; six (6) maximum interior mechanical, electrical and plumbing; pre-concrete slab pour; exterior elevation, including window-flashing and waterproofing; three (3) maximum roofing exact built showing the roof at various stages of the project; and finished condition prior to occupancy. All documentation shall include consultations with City identifYing project-specific needs, appropriate photographic intervals, schedules, determination of optimal locations based on the site plans, a representative number of digital photographs at such intervals and for such durations and at the specified milestones; linking each photo set to the appropriate location on the site plans and floor plans; online web hosting of the documentation on the Multivista website for the construction period covered by the documentation and for a minimum period of I-year thereafter; password protected access to the documentation and two CD or DVD ROM copies of the entire documentation upon completion. Page 13 of 19 CITY OF PALO ALTO CONTRACT NO.: CI013I63I-AMENDMENT TWO D -Extended Construction Duration Provide Construction Phase services for extended construction duration, if not caused by the CONSULTANT. Services in this category are to be provided and compensated only with the approval of the CITY Project Manager. Schedule C includes 30 working days of extended duration. Phase III: Post Construction Services A -Turner Staff Services: Post Construction and Warranty Services: Consultant shall meet with Library, Community Services and Public Works staff (Staff) monthly for three months commencing after the building is open to the public in order to complete any remaining punch-list items and/or to contact the Contractor for any warranty issues that might arise. After the initial three month period, Consultant shall contact the Staff quarterly for a period of nine months to determine whether any new building or systems issues have been identified. Systems deficiencies that cannot be resolved by the Contractor shall be reported to the Commissioning Agent. . Commissioning Verification: Consultant shall participate in the post-construction activities of the Commissioning Agent as follows: Participate in an off-season testing (i.e., testing the heating system prior to winter) session and work with the Contractor to correct any deficiencies. Compile the final testing documentation for the Commissioning Record and O&M manuals. 12 Month Warranty Follow Up: Return to the site at month 10 ofthe 12 month warranty period and review operating conditions with City facility staff and the Commissioning Agent in order to identify any outstanding issues related to the original and seasonal commissioning. The Commissioning Agent will interview facility staff and identify problems or concerns that they have with operating the building as originally intended. The Commissioning Agent will make suggestions for improvements and for recording these changes in the O&M manuals. The Commissioning Agent will identify areas that may come under warranty or under the original construction contract. The Construction Management Consultant shall work with the Contractor to resolve any warranty issues. MAIN LIBRARY Phase I -Design Phase -Main Library A.I -Turner Staff Services for Temporary Library (Conceptual Design Phase Only) The ARCHITECT will research a location for a temporary Main Library site for use during the construction of the Main Library renovation and expansion. The temporary Main Library would consist of a space approximately 8,000 to 10,000 square feet. The ARCHITECT will develop schematic electrical and mechanical plans, floor plans, signage landscaping and cost estimates for said facility. . The Consultant shall participate and assist in the selection of a temporary Main Library site, Page 14 of 19 CITY OF PALO ALTO CONTRACT NO.: Cl0131631-AMENDMENT TWO review and comment on designs prepared by ARCHITECT and prepare independent construction cost estimates. Consultant shall attend meetings with staff and ARCHITECT, which include two (2) technical meetings and three (3) project management team meetings. Fee for these meetings shall be included in the cost for the Temporary Main Library item. Detailed design on any temporary library will not proceed until Council reviews and approves the cost, size, location and other information related to the temporary library. If Council approves completing the design of a temporary library, a scope and fee will be negotiated with Consultant for services related to oversight of the design phase. A.2 -Turner Staff Services for permanent Main Library Design of the Main Library expansion and renovation is anticipated to begin in mid to late 2010 or early 2011 Consultant shall provide three (3) construction cost estimates: One at 100% Schematic Design, one at 100% Design Development and one at 50% Construction Documents . . Consultant shall perform constructability and design document review at the Design Development Phase Consultant shall develop and grade pre-qualification forms, attend any protest hearings and defend findings. Consultant shall review overall project schedule and budget development and update same. Contractor Prequalification Prior to the construction bid phase, the Consultant shall prepare,and obtain approval from the City of Palo Alto, to advertise forms required for Contractor Prequalification. Consultant shall administer the feedback from same, including but not limited to: answering questions from contractors and subcontractors, coordinating responses with the City's Purchasing Division, preparing spreadsheets or other documentation necessary to compile and compare contractor responses, preparing a recommended bidder's list with a brief report summarizing findings, assisting in representing the City in any subsequent hearings challenging the validity of the results and any follow-up documentation resulting from said hearings. The City Purchasing Division will verify Consultant's recommendation in order to finalize the decision. Additional Services Additional Services include, but are not limited to, attendence at meetings, value engineering, calculations and reimbursable expenses not included in the base fee. Phase II -Construction Phase Services (Potential Future Phase) -Main Library Services and Fee for Construction Administration services may, at the City's sole discretion, be negotiated prior to the start of construction for the Main Library. Page 15 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631 -AMENDMENT TWO EXHIBIT "B" SCHEDULE OF PERFORMANCE CONSVLTANT shall perform the Services so as to complete each milestone within the number of time specified below. The time to complete each milestone may be increased or decreased by mutual written agreement of the project managers for CONSULTANT and CITY so long as all work is completed within the term of the Agreement. CONSULTANT shall provide a detailed schedule of work consistent with the schedule below within 2 weeks of receipt of the notice to proceed. Milestones Downtown Libtary Phase I Design Phase: Review Construction Documents Contractor Prequalification Construction Contract Award Completion fromNTP Oct 2009 Oct 2009 Mar 2010 Downtown Library Phase II and Phase III, Construction & Post Construction Phase: .. Construction Start Substantial completion (11 mos) Project Close-Out (lmo) Jul1,2010 May 30, 2011 Jun 30, 2011 Mitchell Park Library & Community Center, Phase I -Design Phase: Review Construction Documents Contractor Pre qualification Construction Contract Award Feb. 2010 Feb. 2010 Jun 2010 Mitchell Park Library & Community Center, Phase II: Construction Phase: Construction Start Substantial completion (23 mos) Project Close-Out (lmo) Warranty Period Ends (12 mos) Main Library Phase I Design Phase: Temporary Main Library Conceptual Design Main Library Design Contractor Prequalification Construction Contract Award Aug 23, 2010 Ju123,2012 Aug 23, 2012 JuI23,2013 Mar 2011 Sep 2011 Jun 2011 Jan 2012 Page 16 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO EXHmIT "C" COMPENSATION The CITY agrees to compensate the CONSULTANT for professional services performed in accordance with the terms and conditions of this Agreement, and as set forth in the budget schedule below. Compensation shall be calculated based on the hourly rate schedule attached as exhibit C-l up to the not to exceed budget amount for each task set forth below. For Sub consultants, such as Inspections, special inspections, electronic document services, and photographic documentation services, the CITY agrees to compensate the CONSULTANT for services performed in accordance with the terms and conditions of this Agreement, and as set forth in the budget schedule below. Compensation shall be calculated based on the actual cost of the sub consultant, plus a fee of 5%, up to the not to exceed budget amount for each task set forth below. The compensation to be paid to CONSULTANT under this Agreement for all services described in Exhibit "A" ("Basic Services") and reimbursable expenses shall not exceed $3,254,337.00. CONSULTANT agrees to complete all Basic Services, including reimbursable expenses, within this amount. In the event CITY authorizes any Additional Services, the maximum compensation shall not exceed $3,578,448.00. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY CONSULTANT shall perform the tasks and categories of work as outlined and budgeted below. The CITY's project manager may approve in writing the transfer of budget amounts between any of the tasks or categories listed below provided the total compensation for Basic Services, including reimbursable expenses, does not exceed $3,254,337.00 and the total compensation for Additional Services does not exceed $324,111.00. Continue on next page ... Page 17 of 19 CITY OF PALO ALTO CONTRACT NO.: CI0131631-AMENDMENT TWO EXHIBIT "C" COMPENSATION DESCRIPTION NOT TO EXCEED AMOUNT BASIC SERVICES Downtown Library Phase I -Design Phase A . Pre-construction Phase Downtown Library Phase II -Construction Phase A Turner Staff Services B Testing and Special Inspections C Electronic Documents $17,545 $345,000 $12,000 $20,000 Downtown Library Phase III Post Construction & Warranty Phase F Turner Staff Services $10,000 TOTAL DOWNTOWN LIBRARY BASIC SERVICES Mitchell Park Phase I Design Phase A Preconstruction Mitchell Park Phase II Construction Phase A Turner Staff Services B Testing and Special Inspections C Electronic Documents & Photo Recording D Extended Construction Duration Mitchell Park Phase III Post-Construction Phase A Turner Staff Services TOTAL MITCHELL PARK BASIC SERVICES Main Library Phase I $404,545 $107,292 $1,835,000 $445,000 $135,000 $115,000 $45,000 $2,682,292 (Design Phase for Main Library & Concept Design Phase for Temporary Main Library) A.l A.2 Turner Staff Services -Temporary Library for Main Turner Staff Services -Permanent Main Library $15,000 $90,500 TOTAL MAIN LIBRARY BASIC SERVICES (Design Phase Only) $105,500 ALLOWANCE FOR REIMBURSABLE EXPENSES DT Library MP Library Main Library (not to exceed) (not to exceed) Total Allowance for Reimbursables $5,000 $55,000 $2,000 $62,000 TOTAL BASIC SERVICES (including Allowance for Reimbursables) $3,254,337 Page 18 of 19 CITY OF PALO ALTO CONTRACT NO.: C10131631-AMENDMENT TWO EXHIBIT "C" COMPENSATION DESCRIPTION NOT TO EXCEED AMOUNT ADDITIONAL SERVICES: ALLOWANCE FOR ADDITIONAL SERVICES-Not to Exceed DTLibrary MPLCC Main Library TOTAL ALLOWANCE FOR ADDITIONAL SERVICES TOTAL NOT TO EXCEED COMPENSATION REIMBURSABLE EXPENSES $42,632 $270,729 $10,750 $324,111 $3,578.448 The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. ADDITIONAL SERVICES The CONSULTANT shall provide additional servic«s only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY's project manager's request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT's proposed maximum compensation, including reimbursable expense, for such services based on the rates set forth in Exhibit C-I. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY's project manager and CONSULTANT prior to commencement of the services. Payment for additional services is subject to all requirements and restrictions in this Agreement. Page 19 of 19 ATTACHMENT E CITY OF PALO ALTO CONTRACT NO. CI0135893 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND STOLLER STUDIO FOR PROFESSIONAL SERVICES FOR PROVISION of ENTRY ARTWORK FOR MITCHELL PARK LIBRARY This Agreement is entered into on this 4th day of August, 2010, ("Agreement") by . and between the CITY OF PALO ALTO, a California chartered municipal corporation ("CITY"), and STOLLER STUDIO, INC., a California Corporation, located at 198 Lucero Way, Portola Valley, CA 94028 (PH) 650-854-4162 ("CONSULTANT"). RECITALS The following recitals are a substantive portion of this Agreement. A. CITY intends to install innovative art installation for the two-story entry area to the new Mitchell Park Library. ("Project") and desires to engage a consultant to design, create and install the Art Work in connection with the Project("Services"). B. ' CONSULTANT has represented that it has the necessary professional expertise, qualifications, and capability, and all required licenses andlor certifications to provide the Services. C. CITY in reliance on these representations desires to engage CONSULTANT to provide the Services as more fully described in Exhibit "A", attached to and made a part ofthis Agreement. NOW, THEREFORE, in consideration ofthe recitals, covenants, terms, and conditions, this Agreement, the parties agree: AGREEMENT SECTION 1. SCOPE OF SERVICES. CONSULTANT shall perform the Services described in Exhibit "A" in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY. o Optional On-Call Provision (This provision only applies if checked and only applies to on-call agreements. ) Services will be authorized by the City, as needed, with a Task Order assigned and approved by the City's Project Manager. Each Task Order shall be in substantially the same form as Exhibit A-I, Each Task Order shall designate a City Project Manager and shall contain a specific scope of work, a specific schedule of performance and a specific compensation amount. The total price of all Task Orders issued under this Agreement shall not exceed the amount of Compensation set forth in Section 4 of this Agreement. CONSULTANT shall only be compensated for work performed under an authorized Task Order and the City may elect, but is not required, to authorize work up to the maximum compensation amount set forth in Section 4. SECTION 2. TERM. The term of this Agreement shall be from the date of its full execution through completion of the services in accordance with the Schedule of Performance attached as Exhibit "B" unless terminated earlier pursuant to Section 19 of this Agreement. SECTION 3. SCHEDULE OF PERFORMANCE. Time is of the essence in the performance of Services under this Agreement. CONSULTANT shall complete the Services within the term of this Agreement and in accordance with the schedule set forth in Exhibit "B", attached to and made a part of this Agreement. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULT ANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY's agreement to extend the term or the schedule for performance shall not precludeTecovery of damages for delay if the extension is required due to the fault of CONSULTANT. SECTION 4. NOT TO EXCEED COMPENSATION. The compensation to be paid to CONSUL T ANT for performance of the Services described in Exhibit "A", including both payment for professional services and reimbursable expenses, shall not exceed Ninety Thousand Dollars ($90,000.00). In the event Additional Services are authorized, the total compensation for services and reimbursable expenses shall not exceed Ninety Thousand Dollars ($90,000.00). Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit "C". CONSULTANT shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. Additional Services shall mean any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described in Exhibit "A". SECTION 5. INVOICES. In order to request payment, CONSULTANT shall submit monthly invoices to the CITY describing the services performed and the applicable charges. If applicable, the invoice shall also describe the percentage of completion of each task. The information in CONSULTANT's payment requests shall be subject to verification by CITY. CONSULTANT shall send all invoices to the City's project manager at the address specified in Section 13 below. The City will generally process and pay invoices within thirty (30) days of receipt. SECTION 6. QUALIFICATIONS/STANDARD OF CARE. All of the Services shall be performed by CONSULTANT or under CONSULTANT's supervision. CONSULTANT represents that it possesses the professional and technical personnel necessary to perform the Services required by this Agreement and that the personnel have sufficient skill and experience to perform the Services assigned to them. CONSULTANT represents that it, its employees and subconsultants, if permitted, have and shall maintain during the term of this Agreement all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the Services. 2 C:\Documents and Settmgs\kbradJe\Local Settings\Temporary Internet Files\OLK287\Contract SJ 0135893 Final.doc Professional Services Rev. June 2,2010 All of the services to be furnished by CONSULTANT under this agreement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. SECTION 7. COMPLIANCE WITH LAWS. CONSULTANT shall keep itselfinfonned of and in compliance with all federal, state and local laws, ordinances, regulations, and orders that may affect in any manner the Project or the performance of the Services or those engaged to perform Services under this Agreement. CONSULTANT shall procure all pennits and licenses, pay all charges and fees, and give all notices required by law in the performance of the Services. SECTION 8. ERRORS/OMISSIONS. CONSULTANT shall correct, at no cost to CITY, any and all errors, omissions, or ambiguities in the work product submitted to CITY, provided CITY gives notice to CONSULT ANT. If CONSULTANT has prepared plans and specifications or other design documents to construct the Project, CONSULTANT shall be obligated to correct any and all errors, omissions or ambiguities discovered prior to and during the course of construction of the Project. This obligation shall survive termination of the Agreement. SECTION 9. COST ESTIMATES. If this Agreement pertains to the design of a public works project, CONSULTANT shall submit estimates of probable construction costs at each phase of design submittal. lfthe total estimated construction cost at any submittal exceeds ten percent (10%) of the CITY's stated construction budget, CONSULTANT shall make recommendations to the CITY for aligning the PROJECT design with the budget, incorporate CITY approved recommendations, and revise the design to meet the Project budget, at no additional cost to CITY. SECTION 10. INDEPENDENT CONTRACTOR. It is understood and agreed that in performing the Services under this Agreement CONSULTANT, and any person employed by or contracted with CONSULTANT to furnish labor and/or materials under this Agreement, shall act as and be an independent contractor and not an agent or employee of the CITY. SECTION 11. ASSIGNMENT. The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement nor the perfonnance of any of CONSULTANT's obligations hereunder without the prior written consent of the city manager. Consent to one assignment will not be deemed to be consent to any subsequent assignment. Any assignment made without the approval of the city manager will be void. SECTION 12. SUBCONTRACTING. CONSULTANT shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of the city manager or designee. CONSULTANT shall be responsible for directing the work of any sub consultants and for any compensation due to subconsultants. CITY assumes no responsibility whatsoever concerning compensation. CONSULTANT shall be fully responsible to CITY for all acts and omissions of a 3 C:\Docurnents and Settings\k:brad\e\Local Settings\Ternporary lnternet Fi\es\OLK287\Contract S 10135893 Final.doc Professional Services Rev. June 2, 2010 subconsultant. CONSULTANT shall change or add subconsultants only with the prior approval of the city manager or his designee. SECTION 13. PROJECT MANAGEMENT. CONSULTANT will assign Roger W. Stoller as the Proj ect Director to have supervisory responsibility for the performance, progress, and execution of the Services and as the Project Manager to represent CONSULTANT during the day-to-day work on the Project. If circumstances cause the substitution of the project director, project coordinator, or any other key personnel for any reason, the appointment of a substitute project director and the assignment of any key new or replacement personnel will be subject to the prior written approval of the CITY's proj ect manager. CONSULTANT, at CITY's request, shall promptly remove personnel who CITY finds do not perform the Services in an acceptable marmer, are uncooperative, or present a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property. The City's project manager is Kelly Morariu, Office of the City Manager, 250 Hamilton Avenue, Palo Alto, CA 94303, Telephone:650-329-2452 . The project manager will be CONSULTANT's point of contact with respect to performance, progress and execution of the Services. The CITY may designate an alternate project manager from time to time. SECTION 14. OWNERSHIP OF ART WORK. Upon delivery of the art work "Radiant Seed" to and acceptance by CITY, the art work, including every item installed in connection with the art work and any and all copyright interests in the art work developed in accordance with the terms and conditions of this Agreement shall become and remain the exclusive property of CITY without restriction or limitation upon its use, except as otherwise provided herein. CITY acknowledges and agrees that CONSULTANT shall retain the copyright to the "Metal Lace" artwork concept that is the conceptual basis of the art work, and CITY further acknowledges that CONSUL TANT has used "Metal Lace" concept prior to the advent of this art work project and likely will use it without limitation after this project has been completed. To the extent permitted by applicable laws, CONSULTANT waives and relinquishes only the copyright to this specific sculptural interpretation, "Radiant Seed", which embraces the "Metal Lace" concept. CONSUL T ANT agrees that the copyright( s) specific to this work pursuant to this Agreement shall be vested in CITY, and CONSULTANT hereby waives and relinquishes any and all claims to the copyright to "Radiant Seed" in favor of the CITY. Neither CONSULTANT nor its contractors, if any,. shall make any of the materials used to create the art work available to any person or individual or organization without the prior written approval of the City Manager or designee. CONSULTANT makes no representation of the suitability of the art work for use in or application to circumstances not contemplated by the scope of work. SECTION 15. AUDITS. CONSULTANT will pennit CITY to audit, at any reasonable time during the term of this Agreement and for one (1) year thereafter, CONSULT ANT's records pertaining to matters covered by this Agreement. CONSULTANT further agrees to maintain and retain such records for at least one (1 year after the expiration or earlier termination of this Agreement. 4 C\Docurnents and Settings\kbradle\Local Settings\Ternporary Internet Files\OLK287\Contract S10135893 Final.doc Professional Services Rev. June 2,2010 SECTION 16. INDEMNITY. 16.1. To the fullest extent permitted by law, CONSULTANT shall protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an "Indemnified Party") from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses ofwhatever nature including attorneys fees, experts fees, court costs and disbursements ("Claims") resulting from, arising out of or in any manner related to performance or nonperformance by CONSULTANT, its officers, employees, agents or contractors under this Agreement. To the fullest extent permitted by law, CITY shall protect, indemnify, defend and hold harmless CONSULTANT, from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorneys fees, experts fees, court costs and disbursements ("Claims") resulting from, arising out of or in any manner related to performance or nonperformance by CONSULTANT, its officers, employees, agents or contractors under this Agreement. 16.2. Notwithstanding the above, nothing in this Section 16 shall be construed to require CONSULTANT to indemnify an Indemnified Party from Claims arising from the active negligence, sole negligence or willful misconduct of an Indemnified Party. 16.3. The acceptance of CONSULTANT's services and duties by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section 16 shall survive the expiration or early termination of this Agreement for a period of one year .. SECTION 17. WAIVERS. The waiver by either party of any breach or violation of any covenant, tenn, condition or provision of this Agreement, or of the provisions of any ordinance or law, will not be deemed to be a waiver of any other term, covenant, condition, provisions, ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, ordinance or law. SECTION 18. INSURANCE. 18.1. CONSULTANT, at its sole cost and expense, shall obtain and maintain, in full force an~ effect during the term of this Agreement, the insurance coverage described in Exhibit "D". CONSULTANT shall obtain a policy endorsement naming C~TY as an additional insured under any general liability or automobile policy or policies. 18.2. All insurance coverage required hereunder shall be provided through carriers with AM Best's Key Rating Guide ratings of A-:VII or higher which are licensed or authorized to transact insurance business in the State of California. Any and all contractors of CONSULTANT retained to perform Services under this Agreement will obtain and maintain, in full force and effect during the term of this Agreement, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 18.3. Certificates evidencing such insurance shall be filed with CITY concurrently 5 C:\Documents and Settings\kbradle\Local Settings\Temporary Internet Files\OLK287\Contract S 10135893 Final.doc Professional Services Rev. June 2, 2010 with the execution of this Agreement. The certificates will be subj ect to the approval of CITY's Risk Manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled, or materially reduced in coverage or limits, by the insurer except after filing with the Purchasing Manager thirty (30) days' prior written notice of the cancellation or modification, CONSULTANT shall be responsible for ensuring that current certificates evidencing the insurance are provided to CITY's Purchasing Manager during the entire term of this Agreement. 18.4. The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT's liability hereunder nor to fulfill the indemnification provisions of this Agreement. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Agreement, including such damage, injury, or loss arising after the Agreement is terminated or the term has expired. SECTION 19. TERMINATION OR SUSPENSION OF AGREEMENT OR SERVICES. 19.1. The City Manager may suspend the performance ofthe Services, in whole or in part, or terminate this Agreement, with or without cause, by giving ten (30) days prior written notice thereof to CONSULTANT. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance of the Services. 19.2. CONS UL T ANT may terminate this Agreement or suspend its performance of the Services by giving thirty (30) days prior written notice thereofto CITY, but only in the event of a substantial failure of performance by CITY. 19.3. Upon such suspension or termination, CONSULTANT shall deliver to the City Manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONSULTANT or its contractors, if any, or given to CONSULT ANT or its contractors, if any, in connection with this Agreement. Such materials will become the property of CITY. 19.4. Upon such suspension or termination by CITY, CONSULTANT will be paid for the Services rendered or materials delivered to CITY in accordance with the scope of services on or before the effective date (i.e., 30 days after giving notice}ofsuspension.oI·termination; pro¥ided, however, if this Agreement is suspended or terminated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONS UL T ANT's services which have been completed to date. The following Sections will survive any expiration or termination ofthis Agreement: 14, 15, 16, 19.4,20, and 25. 19.5. No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Agreement. SECTION 20. NOTICES. All notices hereunder will be given in writing and mailed, postage prepaid, by 6 C\Docurnents and Settings\kbradle\Local Settings\Ternporary Internet Files\OLK287\Contract S10135893 Final.doc Professional Services Rev. June 2,2010 certified mail, addressed as follows: To CITY: Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 With a copy to the Purchasing Manager To CONSULTANT: Attention of the project director at the address of CONSULTANT recited above SECTION 21. CONFLICT OF INTEREST. 21.1. In accepting this Agreement, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 21.2. CONSULTANT further covenants that, in the performance of this Agreement, it will not employ subconsultants, contractors or persons having such an interest. CONSULTANT certifies that no person who has or will have any financial interest under this Agreement is an officer or,employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. 21.3. Ifthe Project Manager determines that CONSULTANT is a "Consultant" as that term is defined by the Regulations of the Fair Political Practices Commission, CONSULTANT shall be required and agrees to file the appropriate financial disclosure documents required by the Palo Alto Municipal Code and the Political Reform Act. SECTION 22. NONDISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONSULTANT certifies that in the perfonnance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. CONSULTANT acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. SECTION 23. ENVIRONMENT ALLY PREFERRED PURCHASING AND ZERO WASTE REQUIREMENTS. CONSULTANT shall comply with the City's Environmentally Preferred Purchasing policies which are available at the City's Purchasing Department, incorporated by reference and may be amended from time to time. CONSULTANT shall comply with waste reduction, reuse, recycling and disposal requirements ofthe City's Zero Waste Program. Zero Waste best practices include first minimizing and reducing waste; second, reusing waste and third, recycling or compo sting waste. In particular, Consultant shall comply with the following zero waste 7 C:\Documents and Settings\kbradle\Local Settings\Temporary Internet Files\OLK287\Contract S 10135893 Final.doc Professional Services Rev. June 2,2010 requirements: • All printed materials provided by Consultant to City generated from a personal computer and printer including but not limited to, proposals, quotes, invoices, reports, and public education materials, shall be double-sided and printed on a minimum of 3 0% or greater post-consumer content paper, unless otherwise approved by the City's Project Manager. Any submitted materials printed by a professional printing company shall be a minimum of30% or greater post-consumer material and printed with vegetable based inks. • Goods purchased by Consultant on behalf of the City shall be purchased in accordance with the City's Environmental Purchasing Policy including but not limited to Extended Producer Responsibility requirements for products and packaging. A copy of this policy is on file at the Purchasing Office. • Reusable/returnable pallets shall be taken back by the Consultant, at no additional cost to the City, for reuse or recycling. Consultant shall provide documentation from the facility accepting the pallets to verify that pallets are not being disposed. SECTION 24. NON-APPROPRIATION 24.1. This Agreement is subject to the fiscal provisions of the Charter ofthe City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. SECTION 25. MISCELLANEOUS PROVISIONS. 25.1. This Agreement will be governed by the laws of the State of California. 25.2. In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California in the County of Santa Clara, State of California. 25.3. The prevailing party in any action brought to enforce the provisions of this Agreement may recover its reasonable costs and attorneys' fees expended in connection with that action. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by it as well as any attorneys' fees paid to third parties. 25.4. This document represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 25.5. The covenants, terms, conditions and provisions of this Agreement will apply 8 C:\Documents and Settings\kbrad1e\Local Settings\Temporary Internet Files\OLK287\Contract S10135893 Final.doc Professional Services Rev. June 2, 2010 to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants of the parties. 25.6. If a court of competent jurisdiction finds or rules that any provision of this Agreement or any amendment thereto is void or unenforceable, the unaffected provisions of this Agreement and any amendments thereto will remain in full force and effect. 25.7. All exhibits referred to in this Agreement and any addenda, appendices, attachments, and schedules to this Agreement which, from time to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Agreement and will be deemed to be a part of this Agreement. 25.8 If, pursuant to this contract with CONSULTANT, City shares with CONSULTANT personal information as defined in California Civil Code section 1798.81.5 (d) about a California resident ("Personal Information"), CONSULTANT shall maintain reasonable and appropriate security procedures to protect that Personal Information, and shall inform City immediately upon learning that there has been a breach in the security of the system or in the security of the Personal Information. CONSULTANT shall not use Personal Information for direct marketing purposes without City's express written consent. 25.9 All unchecked boxes do not apply to this agreement. 25.10 The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. IN WITNESS WHEREOF, the parties hereto have by their duly authorized representati ves executed this Agreement on the date first above written. 9 C:\Documents and Settings\kbradJe\Local Settings\Temporary Internet FiJes\OLK287\Contract S10135893 Final,doc Professional Services Rev, June 2,2010 1. BACKGROUND EXHIBIT" A" SCOPE OF SERVICES In 2007, Palo Alto voters approved Measure N, which authorized $75 million in General Obligation Bonds to pay for the reconstruction and renovation of three Palo Alto libraries (Mitchell Park, Downtown and Main) and the Mitchell Park Community Center. The City of Palo Alto's Percent for Public Art policy applies to the Mitchell Park and Main Library projects. The existing Mitchell Park Library is approximately 10,000 square feet and will be replaced with a new facility of 42,200 square feet. The new library will be two stories to accommodate an enlarged collection, a children's area, an acoustically separated teen area, group study rooms, staff areas and a program room. Increases in collection, seating, computers, children's area and programming space are planned to serve the needs of the projected population in 2030. The existing Community Center is approximately 10,000 square feet and will be replaced with a new facility of 15,900 square feet. Similar to the existing community center, the new building will be a one-story building attached to the new library. The new community center will allow for additional programming space and rental availability. By sharing activity space, the joint facility will be smaller in size than two independent buildings and will create a more efficient use of the library/community center site. The Library Advisory Commission has developed a Library Service Model Analysis and Recommendation (LSMAR) report for Palo Alto Libraries which was adopted by Council in 2006. The LSMAR's vision statement for Palo Alto Library is: ../ Boldly address community needs through the provision of collections and services that meet leading edge standards for content, access and connectivity; ../ Efficiently and effectively serves all ages and supports life-long learning with a well- supported staff, expanded partnerships, and a vibrant volunteer program; ../ Provides safe and inviting facilities with flexible spaces that include areas for quiet study and reflection, small and large group meetings, and spaces for delivery of neighborhood programs and services. 2 .. SCOPE OF WORK CONSULTANT shall provide for the design, creation, delivery and installation for the Art Work, "Brilliant Seed", for the two-story entry area to the library, as proposed in CONSUT ANT'S response to RFP 135893 for the Library Entry Art Installation. The artwork at the entrance to the library shall convey the programming of the space as well as the green initiatives and the public it serves. The new library is a place for discovery where all are welcome. The facility supports learning through collaborations within the community as well as cultures and ideas across the planet. The Artwork shall convey the sense of discovery, wonder and freedom that knowledge brings. 11 C:\Docurnents and Settings\kbradle\Local Settings\Ternporary Internet Files\OLK287\Contract S10135893 Final.doc Professional Services Rev. June 2, 2010 EXHIBIT "B" SCHEDULE OF PERFORMANCE S(hedule Mitche" Pork Ubrory Artwork estimafed 11.5 months design/production plll.tl. Computer Model [Studio] 1 month concept development pattern design structural concept Phase II. Detail Design & Planning [Studio] 2 months fabrication planning pattem reflnement structural: detail design engineering production data completed Phase II Go Cutting & Bending [Nor Cal] 2 months laser cut panels from data bending panels truck to Studio ...... III •• Custom Hardware [Studio] fab of custom structural elements Pho.IY •• Fabrication (Studio] 3 months assembly & tack welding welding: run beads 13 Phut IY II. Coordination: [Studio/Palo Alto} permits on-site details installation coordination Ph ... , •• Finishing (Studio) 2.75 months grinding & nnishing flnal surface I1nishes " •• e 'It. On-site Structure {Palo AltO/Studio] contractor builds reenforced wall on-site checks: Stoller/contractor .h •• e VL Shipping (Studio/Polo Alto} 1 week prep & crating truck to Polo Alto Pha .. VII. Installation [Palo Alto] 2weeb on site prep custom structural elements installed as-build dimensions checked with sculpture sculpture installation site cleanup Professional Services Rev. June 2, 2010 C:\Documents and Settings\kbradJe\Locai Settings\Temporary Internet Files\OLK287\Contract SlO135893 Final.doc EXHIBIT "C" COMPENSATION The CITY agrees to compensate the CONSULTANT for professional services performed in accordance with the terms and conditions of this Agreement, and as set forth in the budget schedule below. The compensation to be paid to CONSULTANT under this Agreement for all services described in Exhibit "A" ("Basic Services") and reimbursable expenses shall not exceed $90,000.00. CONSULTANT agrees to complete all Basic Services, including reimbursable expenses, within this amount. Schedule of payment to be agreed upon by CONSULTANT and City's Project Manager as part of Phase 1. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. PROJECT BUDGET: May 2010 & SCOPE OF WORK rev. 1 Studio: Actlvlty/ Labor project management design engineering CAD fabrication installation Labor Sub Total Consultants/ Materials! Expenses materials: custom mounting hardware, etc outside fabrication: bending, laser cutting, • materials: stainless steel sheet: 1/4 n engineering sub-contractor legal insurance tools supplies additional Installation crew [labor] equip. rentai:scaffold, etc. shipping Sub Total contingency Total $6,600 $8,000 $2,400 $9,600 $11,600 $7,200 $45,400 $4,000 $20,000 $10,000 $2,000 $1,500 $500 $1,000 $1,SOO $3,000 $500 $44,000 $600 $90,000 EXHIBIT "D" INSURANCE REQUIREMENTS CONTRACTORS TO TIIE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITH AM BEST'S KEY RATING OF A-:VII, OR mGIlER, LICENSED OR AumORIZED TO TRANSACT INSURANCE BUSINESS IN TIlE STATE OF CALIFORNIA. AWARD IS CONTINGENT ON COJv1PLIANCE WITH CITY'S INSURANCE REQUIRE.MENTS AS SPECIFIED BELOW , , MINIMUM LIMITS REQUIRED TYPE OF COVERAGE REQUIREMENT EACH YES YES YES YES YES YES OCCURRENCE AGGREGATE WORKER'S COJv1PENSATION STATUTORY EJv1PLOYER'S LIABILITY STATUTORY BODILY INJURY $1,000,000 $1,000,000 GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE $1,000,000 $1,000,000 PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL BODILY INJURY & PROPERTY DAMAGE $1,000,000 $1,000,000 LIABILITY COMBINED. BODILY INJURY $1,000,000 $1,000,000 -EACH PERSON $1,000,000 $1,000,000 -EACH OCCURRENCE $1,000,000 $1,000,000 AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED PROPERTY DAMAGE $1,000,000 $1,000,000 BODILY INJURY AND PROPERTY $1,000,000 $1,000,000 DAMAGE, COMBINED PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 mE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT A GREElv1ENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSUL T ANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS' COJv1PENSATION, EJv1PLOYER'S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. 1. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR'S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY'S PRIOR APPROVAL. II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSUREDS" A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER C:\Documents and Settings\kbradle\Local Settings\Temporary Internet Files\OLK287\Contract S 10135893 Final.doc Professional Services 15 Rev June 2, 2010 INSURANCE CARRlED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. B. CROSS LIABILITY THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION 1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN(10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 P ALO ALTO, CA 94303 C:\Documents and Settings\kbradleILocai Settings\Temporary Internet Files\OLK287\Contract S 10135893 Final.doc Professional Services 1 6 Rev June 2, 2010 TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: CITY MANAGER DATE: AUGUST 2, 2010 CMR: 310:10 REPORT TYPE: ACTION SUBJECT: Report from High Speed Rail Standing Committee on Recent Activity and Request for Authorization for the City Manager to Enter Into a Contract with Hatch Mott and McDonald in an Amount Not to Exceed $120,000 for On-Call Engineering Services Related to High Speed Rail RECOMMENDATION Staff recommends that the Council authorize the City Manager to complete and execute the following contract for services related to high speed rail with substantially the same scope of service attached to this report as Exhibit A: (1) Contract with Hatch Mott and McDonald in an amount not to exceed $120,000 for on-call .. . engmeenng servIces. BACKGROUND AND DISCUSSION The City recently engaged the services of Hatch Mott and MacDonald (HMM), a full service professional engineering services firm to provide a Peer Review of the California High Speed Rail Project Alternatives Analysis for the San Francisco to San Jose Segment. This work was recently completed and the City filed its response including the HMM Peer Review analysis to California High Speed Rail Authority Alternatives Analysis June 30, 2010. Staff anticipates that the City may require consultant services over the next year (through June 30, 2011) for HSR issues that arise involving or requiring engineering analysis or expertise. The total cost for this contract would not exceed $60,000 for peer review of the supplemental analysis report. If the city seeks to engage HMM for the full DEIR, this amount is projected to increase to $120,000. These are preliminary figures based on current information. , The proposed scope of service for the contract is attached. CMR: 310:10 Page 1 of2 EXHIBIT "A" SCOPE OF SERVICES Hatch Mott MacDonald Attachment A Professional Services for California High Speed Rail On-Call Engineering Services Introduction The City of Palo Alto is actively participating in the implementation of the California High Speed Rail Project (CAHSR) since the passage of Proposition 1A in November 2008. Because CAHSR is proposed to utilize the existing Caltrain right-of-way owned collectively by the Joint Powers Board (JPB), the project has the potential to profoundly change the character and quality of the community. ' The City of Palo Alto also recognizes the statewide importance of CAHSR in providing a sustainable alternate transportation. CAHSR has the potential, if done correctlY, to benefit and enhance Palo Alto. The Palo Alto City Council has formed a High Speed Rail Subcommittee comprised of four Council Members appointed by the Mayor. The City Council has also adopted a set of guiding principles which provide direction to the subcommittee when advocating various City positions. Scope of Services Engineering On-Call Services The consultant may be called on to provide on-call engineering professional consulting services for the City of Palo Alto related to the California High Speed Rail Project (CAHSR). These services could relate to the future anticipated Supplemental Alternatives Analysis and Draft Environmental Impact Report (DEIR) projected to be published in December of 2010 or January 2011. There may be additional technical documents published by the CAHSR Authority in which the City of Palo may want to engage the consultant to provide peer review engineering services. Meetings The consultant may from time to time be required to meet with City of Palo Alto City Council, Committees, Board and Commission as well as community groups. The purpose of these meetings will be to provide status reports and to receive direction. = the voting delegate card at the Votingb~l~giteDesk. 'This will enable them to receive the special sticker on their name badg~s J~~..,-iU":a.c4nit t:I,em into the voting area during the Business Meeting. .... .~ .... "' I ". ~.~' • Transferring Voting Card to Non-Designated Individuals Not Allowed. The voting . delegate card may be transferred freely between the voting delegate and alternates, but only between the voting delegate and alternates. If the voting delegate and alternates find themselves unable to attend the Business Meeting, they may not transfer the voting card to another city official. • Seating Protocol during General Assembly. At the Business Meeting, individuals with the voting card will sit in a separate area. Admission to this area will be limited to those individuals with a special sticker on their name badge identifying them as a voting delegate or alternate. If the voting delegate and alternates wish to sit together, they must sign in at the Voting Delegate Desk and obtain the special sticker on their badges. The Voting Delegate Desk, located in the conference registration area ofthe San Jose Convention . Center, will be open at the following times: Wednesday, September 15, 9:00 a.m.; Thursday, September 16, 7:30 a.m.; and September i 7, 7:30 a.m. The Voting Delegate Desk will also be open at the Business Meeting on Friday, but not during a roll call vote, should one be undertaken. The voting procedures that will be used at the conference are attached to this memo. Please share these procedures and this memo with your council and especially with the individuals that your council designates as your city's voting delegate and alternates. Once again, thank you for completing the voting delegate and alternate form and returning it to the League office by Friday, August 20th. If you have questions, please call Mary McCullough at (916) 658-8247. . Attachments: • 2010 Annual Conference Voting Procedures • Voting Delegate/Alternate Form I. INFORMATION AND PROCEDURES RESOLUTIONS CONTAINED IN THIS PACKET: The League bylaws provide that resolutions shall be referred by the president to an appropriate policy committee forreview and recommendation. Resolutions with committee recommendations shall then be considered by the General Resolutions Committee at the Annual Conference. This year, six resolutions have been introduced for consideration by the Annual Conference and referred to .' the League policy committees. Please note that two resolutions have been referred to more than one policy committee for consideration. POLICY COMMITTEES: Six policy committees will meet at the Annual Conference to consider and take action on resolutions referred to them. These are: Administrative Services; Community Services; Environmental Quality; Housing, Community & Economic Development; Revenue and Taxation; and Transportation, Communication & Public Works. These committees will meet on Wednesday, September 15, 201 Oat the Hilton Bayfront Hotel, located next to the San Diego Convention Center. Please see page iii for the policy committee meeting schedule. The sponsors of the resolutions have been notified of the time and location of the meetings. Two policy committees will not be meeting at the annual conference. These committees are: Employee Relations and Public Safety. GENERAL RESOLUTIONS COMMITTEE: This committee will meet at 4:00 p.m. on Thursday, September 16, at the San Diego Convention Center, Ballroom 20n, to consider the reports of the six policy committees regarding the six resolutions. This committee includes one representative from each of the League's regional divisions, functional departments and standing policy committees, as well as other individuals appointed by the League president. ANNUAL BUSINESS MEETING/GENERAL ASSEMBLY: This meeting will be held at 3 :00 p.m. on Friday, September 17; at the San Diego Convention Center, Ballroom 20ABC. PETITIONED RESOLUTIONS: For those issues that develop after the norma160-day deadline, a resolution may be introduced at the Annual Conference with a petition signed by designated voting delegates of 10 percent of all member cities (48 valid signatures required) and presented to the Voting Delegates Desk at least 24 hours prior to the time set for convening the Annual Business Session of the -General Assembly. This year, that deadline is 3:00 p.m., Thursday, September 16. If the petitioned resolution is substantially similar in substance to a resolution already under consideration, the petitioned resolution may be disqualified by the General Resolutions Committee. Resolutions can be viewed on the League's Web site: Www.cacities.org/resolutions. Any questions concerning the resolutions procedures may be directed to Linda Welch Diamond at the League office: ldiamond@cacities.org or (916) 658-8224. . II. GUIDELINES FOR ANNUAL CONFERENCE RESOLUTIONS Policy development is a vital and ongoing process within the League. The principal means for deciding policy on the important issues facing cities and the League is through the League's eight standing policy committees and the board of directors. The process allows for timely consideration of issues in a changing environment and assures city officials the opportunity to both initiate and influence policy decisions. Annual conference resolutions constitute an additional way to develop League policy. Resolutions should adhere to the following criteria. Guidelines for Annual Conference Resolutions 1. Only issues that have a direct bearing on municipal affairs should be considered or adopted at the Annual Conference. 2. The issue is not of a purely local or regional concern. 3. The recommended policy should not simply restate existing League policy. 4. The resolution should be directed at achieving one of the following objectives: r- (a) Focus public or media attention on an issue of major importance to cities. (b) Establish a new direction for League policy by establishing general principals around which more detailed policies may be developed by policy committees and the Board of Directors. (c) Consider important issues not adequately addressed by the policy committees and Board of Directors. (d) Amend the League bylaws (requires 2/3 vote at General Assembly). 11 V. 2010 ANNUAL CONFERENCE RESOLUTIONS RESOLUTION REFERRED TO ADMINISTRATIVE SERVICES POLICY COMMITTEE 1. RESOLUTION RELATING TO LEAGUE BYLAWS AMENDMENTS (2/3 vote at General Assembly required to approve) Source: League Board of Director Referred to: Administrative Services Policy Committee Recommendation to General Resolutions Committee: WHEREAS, The League of California Cities is a nonprofit mutual benefit corporation under California law, and, as such, is governed by corporate bylaws; and WHEREAS, the League's Board of Directors periodically reviews the League's bylaws for issues of clarity, practicality, compliance with current laws, and responsiveness to membership interests; and WHEREAS, the League's Board of Directors convened a Bylaws Review Committee to make recommendations regarding various necessary amendments to ensure that the most qualified and committed city officials are selected to serve on the League's Board, policy committees and other leadership positions, representing a broad diversity of backgrounds, experience, abilities, geography and other factors, and that . any barriers to their selection are removed; and WHEREAS, the Board of Directors approved the Bylaws Review Committee's recommendations that identified amendments to the bylaws that: a) encourage all segments of League membership to pursue leadership positions within the League to advance the goal that the League Board of Directors reflects the diverse ethnic and social fabric of California; b) clarify the League Board's nomination procedures and expand Board membership by four positions; and c) provide guidance to avoid conflicts of interest for Board and policy committee members with the expectation that decisions should be in the best overall interests of cities statewide; and WHEREAS, the League's Board offers amendments and additions to the following sections of the bylaws for the membership's consideration: 1. Article VIT, Section 1; new subsection l(b): Board Diversity Policy, Board of Directors 2. Article VIT, Section 2 (c), (f): Composition, Board of Directors 3. Article VIT, Section 5 (d): Nomination Process, Board of Directors 4. Article XIV, Section 1, new section: Conflicts of Interest 5. Article XIV, Section 4, new section: Ethical Considerations; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities assembled during the Annual Conference in San Diego, September 17,2010, that the League make the specified changes to the League bylaws by amending the above-referenced sections as indicated on Attachment A. [Please see ATTACHMENT A, following background information, for text of proposed bylaws amendments.] 111111///1 6 Background Information on Resolution No.1 Source: League Board of Directors Title: Resolution Relating to League Bylaws Amendments Background: At its February, 2010 Board meeting the League Board authorized the President to appoint a Bylaws Review, . Committee, consisting of a cross-section of current Board members, to review the provisions of League bylaws. This included policies related to governing the nomination and election of League Board members and officers with the goal of ensuring the most qualified and committed city officials are selected, representing abroad diversity of backgrounds, experience, abilities, geography and other factors, and that any barriers to their selection are removed. The Committee, chaired by First Vice President Jim Ridenour, completed its work in four face-to-face meetings (April 2, April 29, June 17 and July 9) and submitted its recommendations to the board. The Board approved the Committee's report and recommends the adoption of the following five amendments to the League bylaws: • Amendment to Article VII, Section 1. Board of Directors. The Committee reviewed a variety of recommendations from previous task forces to encourage greater diversity on the board of directors. It concluded that the best way to encourage greater diversity on the board of directors is to adopt a clear and unequivocal policy statement that the various subunits of the League should encourage and support all members to pursue leadership within the League with the ultimate goal of serving on the board of directors. The League board recommends this proposal for approval. • Amendment to Article VII, Section 2. Composition of Board of Directors. The Committee examined the current composition of the board of directors and is proposing to expand the board by two at-large positions and two large city positions to meet particular needs. Currently, the bylaws provide for approximately 50 directors, including 16 from regional divisions, 11 from functional departments of the League (e.g., city attorneys, city managers, etc.), 10 at-large directors, the mayors of the 8 largest cities (ranging from Los Angeles with 4,065,585 population to Oakland with 425,068 population, and the directors on the National League of Cities Board of Directors that are from California (approximately 2 - 4 members). All must be from dues paying cities. The Committee concluded thatdue to the overwhelming interest in the at-large positions (4 - 5 times the applications 'as available seats each year) additional opportunities to serve on the League board should be provided by increasing the available at-large seats from 10 to 12. The Committee also concluded that large city representation should be adjusted to reflect the existence and political value provided through the coalition of the state's "Big Ten" Mayors, by increasing big city mayoral representation on the board from 8 to 10. The current make-up of the Board allows for only the mayors of the eight largest cities. This excludes two important cities that participate regularly in the coalition of the ten (10) largest cities in the state--Santa Ana (355,662) and Anaheim (348,467)--with which the League works closely. The League board recommends this proposal for approval. • Amendment to Article VII, Section 5. Nomination Process. The Committee examined problems associated with the current process for the President selecting division representatives to serve on the Board Nominating Committee. Each year the President selects representatives from half (8) of the regional divisions, but the bylaws exclude those board members who are candidates for an officer or at-large position from serving. The Committee concluded that a problem can arise when the President is unable to appoint another board representative from a division if one or all of its representatives are candidates for officer or at-large positions. The proposed change would allow the League President to appoint a substitute nominating committee member from the same regional division, if available. If one is not available, the President shall appoint a substitute from a nearby regional division. The League board recommends this proposal for approval. 7 • Amendment to Article XIV, Section 1 (new section). Conflicts of Interest. The Board of Directors recently adopted a policy designed to reduce potential conflicts of interest by Board members and policy committee members involved in the adoption of League policy and asked the Committee to consider whether it should be proposed to be added to the League bylaws. The Committee recommends that this step be taken. The proposed new language is a general statement that Board members and policy committee members are expected to make decisions in the best overall interests of cities statewide, as opposed to narrow parochial, personal, or financial interests. The League board recommends this proposal for approval. • Amendment to Article XIV, Section 4 (new section). Ethical Considerations. As part of the guidance to avoid conflicts. of interest by Board members and policy committee members, language related to ethical considerations is recommended to clarify that the items described under Article XIV as prohibited transactions represent the floor and not the ceiling for standards of ethical conduct. The additional guidance recommends abstention from decisions where personal conflict may exist~ The League board recommends this proposal for approval. [NOTE: Please see ATTACHMENT A (page 9) fO.I'"'text of proposed bylaws amendments.] 8 (g) For,purposes of this section,the population of each city is the most current population as determined by the California Department of Finance, Demographic Research Unit, or its successor agency or unit. If no successor agency or unit is named, the most current population used to determine these dues shall be used to determine future dues until such time as these bylaws are amended to designate a new source for determining city population. (h) Directors hold office until their successors are elected and qualified or, if they sit on the League Board by virtue of their membership on the National League of Cities Board of Directors, until their terms on the NationalLeague of Cities Board of Directors conclude. Article Vll: Boar~ of Directors Section 5: Nomination Process. (d) Candidates for Positions Ineligible. Candidates for officer and at-large positions on the League Board are not eligible to serve on the nominating committee. In the event a regional division representative on the nominating committee wishes to be a candidate for an officer or at-large position, the League President will appoint a substitute nominating committee member from the same regional division. ifavailable.lfone is not available. the President shall appoint a substitute from a nearby regional division. ********** Article XIV: Prohibited Transactions Section 1: Conflicts of Interest General Principle. Members ofthe League board as well as members of League policy committees. and members of an V standing or ad hoc committees and task forces consisting of members ofthe League board or League policy committees. are expected to make decisions in the best overall interests of cities statewide. as opposed to narrow parochial. personal. or financial interests. This is analogous to city officials being expected to make decisions in the best overall interests ofthe community as opposed to narrow private or self-interests. Section 2. Loans. Except as permitted by California Nonprofit Corporation Law, the League may not make any loan of money or property to, or guarantee the obligation of, any director or officer. This prohibition does not prohibit the League from advancing funds to a League director or officer for expenses reasonably anticipated to be incurred in performance of their duties as an Officer or director, so long as such individual would be entitled to be reimbursed for such expenses under League Board policies absent that advance. Section 3: Self-Dealing and Common Directorship Transactions. (a) Self-Dealing Transactions. A self-dealing transaction is a transaction to which the League is a party and' in which one or more of its directors has a material financial interest. 10 (b) . Common Directorships. "Common directorships" occur when the League enters into a transaction with an organization in which one of the League directors also serves on the organization's board. . (c) Pre-Transaction Approval. To approve a transaction involving either self-dealing or a common directorship, the League Board shall determine, before the transaction, that, (i) The League is entering into the transaction for its own benefit; (ii) The transaction is fair and reasonable to the League at the time; and (iii) After reasonable investigation, the League Board determines that it could not have obtained a more advantageous arrangement with reasonable effort under the circumstances. Such determinations shall be made by the League Board in good faith, with knowledge of the material facts concerning the transaction and the director's interest in the transaction, without counting the vote of the interested director or directors. (d) Post-Transaction Approval. When it is not reasonably practicable to obtain Board approval before entering into such transactions, a Board committee may approve such transaction in a manner consistent with the requirements in the preceding paragraph, provided that, at its next meeting, the full Board determines in good faith that the League Board committee's approval of the transaction was consistent with such requirements and that it was not reasonably practical to obtain advance approval by the full Board, and ratifies the transaction by a majority of the directors then in office without the vote of any interested director. 1 Section 4: . Ethical Considerations. These restrictions, ofcourse, represent the floor not the ceiling for ethical conduct as a League board member or policy commiuee member. Ifa board member or policy commiUee member believes that there are circumstances under which the League's members might reasonably question the board member's or policy commiUee member's ability to act solely in the best interests in the League and its member cities, the prudent course is to abstain. As an example. typically. League board members have abstained from participating in decisions on legislation that would affect organizations for which they work. Another example is legislation that would uniquely benefit aboard member's city. Policy committee members should also consider abstaining in similar circumstances. »»»» 1 See Cal. Corp: Code § 7233 (specifying under what circumstances a self-dealing transaction is void or voidable). 11 RESOLUTION REFERRED TO COMMUNITY SERVICES POLICY COMMITTEE 2. RESOLUTION RELATING TO THE NATIONAL LET'S MOVE CAMPAIGN Source: League Board of Directors Referred to: Community Services Policy Committee Recommendation to General Resolutions Committee: WHEREAS, the League supports policies that focus on health and wellness, continuing education, and healthier lifestyles in all communities; and WHEREAS, many cities, counties, and schools have adopted policies, programs, and ordinances that promote healthy lifestyles by making their communities walkable, promoting youth and senior activities, eliminating the sale of junk food in city, county, or school facilities, providing incentives for stores that sell fresh produce to locate in depressed neighborhoods, and providing exercise opportunities for their residents; and WHEREAS, city officials believe there are important, long-term community benefits to be gained . by encouraging healthy lifestyles, including a decrease in the rate of childhood obesity and its negative health-related impacts; and WHEREAS, cities and other community partners can work together to understand the relationship between obesity, land-use policies, redevelopment, and community planning; and WHEREAS, cities and other community partners can work together to ensure that there are safe places for their residents to be active such as inparks, ball fields, pools, gyms, and recreation centers; and WHEREAS, access to healthy foods has a direct impact on the overall health of our community and planning for fresh food, open space, sidewalks, and parks should be a priority; and WHEREAS, the League has partnered with the Healthy Eating Active Living (HEAL) Cities Campaign to provide training and technical assistance to help city officials adopt policies that improve their communities' physical activity and retail food environments; and WHEREAS, the League wants to partner with and support the Let's Move! Campaign headed by the First Lady of the United States, the President's Task Force on Childhood Obesity and the Secretary of Health and Human Services, in an effort to solve the challenge of childhood obesity within a generation; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities, assembled during the Annual Conference in San Diego, September 17, 2010, that the League encourages the existing 480 California cities to adopt preventative measures to fight obesity as set forth by the First Lady of the United States of America in the Let's Move campaign; and, be it further RESOLVED, that California cities be encouraged to sign-up with the United States Department of Health and Human Services -Region IX office as a Let's Move! City; and, be it further RESOLVED, that California cities are encouraged to: (1) help parents make healthy family choices; (2) create healthy schools; (3) provide access to healthy and affordable foods; and (4) promote physical activity. 111111///1 12 Background Information on Resolution No.2 Source: League Board of Directors Title: Resolution Relating to the National Let's Move Campaign Background: According to the United States Department of Health and Human Services, Region 9: In February, First Lady Michelle Obama launched the Let's Move! campaign to solve the childhood obesity epidemic within a generation. First Lady Obama is expanding the effort to include a call to action for mayors and other elected officials to join her Let's Move! Campaign ("Let's Move Cities and Towns '') in an effort to leverage cities and communities unique ability to solve obesity locally and adopt long-term, sustainable, regional approaches to fight childhood obesity. On February 2,2010, President Barack Obama established the Task Force on Childhood Obesity, which includes senior administration officials. The Task Force developed an interagency plan after incorporating input from more than 2,500 public comments in 90 days. The plan details a coordinated strategy, identifies key benchmarks, and outlines an action plan to end the problem of childhood obesity within a generation. League adopts resolution in 2004: This resolution related to "encouraging healthier lifestyles for children, adults, and seniors in cities throughout California." This resolution directed the League to encourage cities to embrace policies that facilitate activities that promote healthier lifestyles, including healthy diet and nutrition, and adopt city design and planning principles that enable citizens to undertake exercise with the goal of achieving a more active and healthy community. League adopts resolution in 2006: This resolution related to "encouraging health and wellness in cities." This resolution directed that the League in cooperation with related League committees, departments, and the CCS Partnership, work together to develop a clearinghouse of information that cities can use to promote wellness policies and healthier cities. It also directed the League to develop a toolkit on the League's Website for cities to visit in order to share, find and develop successful models of health and wellnessto use in their respective communities. It also established that health and wellness programs become a topic of the Helen Putnam Awards Progr~ beginning in 2007. Previous Legislation: SCR 31 was introduced by Senator Alex Padilla in 2007, which established Healthy Communities Awareness Month. This Senate Concurrent Resolution recognized the importance of health and wellness in communities and declared the month of May as Healthy Communities Awareness Month. This was a League sponsored resolution. League Partners with the Healthy Eating Active Living (HEAL) Cities Campaign: The HEAL Cities Campaign provides training and technical assistance to help city officials adopt policies that improve their communities' physical activity and retail food environments. The HEAL Cities Campaign, funded by Kaiser Permanente and the Vitamin Cases Consumer Settlement Fund, is a partnership of the League of California Cities, the California Center for Public Health Advocacy, and the Cities Counties and Schools Partnership. At its core the HEAL Cities Campaign believes that supporting healthy choices is essential to address the obesity epidemic among California's children and adults, which they purport currently costs the state nearly $50 billion annually in healthcare and lost productivity. Forty cities have adopted resolutions and adopted specific action steps and a time line in one of the several key campaign areas (e.g., language in general plan, zoning ordinances governing street design or community gardens, joint use of recreational facilities, and employee wellness). The HEAL campaign goals are: 13 • To provide city officials information about the statewide obesity epidemic and demonstrate how the community food environment, physical activity environment, children's out-of-school environment(s), and soda consumption perpetuate the epidemics; and, • To inform city officials about the role they can play locally to fight the obesity and inactivity epidemics through policy adoption, and to recommend those policies that would improve the physical activity and food environments of their cities and make their community healthier. Existing League policy on Healthy Cities: The League encourages cities to embrace policies that facilitate activities that promote healthier lifestyles, including healthy diet and nutrition, and to adopt city design and planning principles that enable citizens to undertake exercise with the goal of achieving a more active and healthy community. Institute for Local Government (ILG) On Healthy Neighborhoods: ILG heads the Healthy Neighborhoods Project, which provides support and resources local officials can use to protect and improve community health by integrating health considerations into their planning, land use and· other decisions. The resources the ILG Website offers are geared to strengthen the efforts oflocal officials, staff, planning and development professionals, and community residents in creating healthier communities. . According to the Healthy Neighborhoods Project, healthy neighborhoods provide: (1) Places where walking and bicycling are safe and convenient and where residents of all ages and abilities have the opportunity to be physically active; (2) Nutritious, fresh, culturally appropriate food - grown locally whenever possible -is affordable and accessible, promoting health and boosting the local economy; (3) A place where residents aren't exposed to environmental hazards or pollutants that endanger their present or future health or well-being. ILG's Healthy Neighborhoods' Website provides current, relevant resources to aid in adapting general poliCies and strategies to reverse the negative trends related to physical inactivity,. unhealthy eating, and environmental hazards. National League of Cities (NLC) Commends First Lady Michelle Obama for Including Cities and Towns in Let's Move Campaign: In a press release dated June 11, 2010, NLC commends First Lady Michelle Obama for her newest initiative to combat childhood obesity, Let's Move Cities and Towns. The release continued that "NLC looks forward to working with the First Lady in encouraging loca11eaders to be proactive in their approach against childhood obesity." Through its Institute for Youth, Education and Families, NLC works to combat childhood obesity by raising awareness among municipal leaders and providing them with tools and resources to make changes in their communities. Most recently, NLC and the Foundation fQr the Mid South, with support from Leadership for Healthy Communities, a national program of the Robert Wood Johnson Foundation, launched the Municipal Leadership for Healthy Southern Cities project. This initiative will help local -officials in Arkansas, Louisiana and Mississippi advance policies to promote healthy eating and active living in order to reduce childhood obesity. NLC also recently collaborated with the American Association of School Administrators on a report, Community Wellness: Comprehensive City-School Strategies to Reduce Childhood Obesity. For more information on this NLC initiative visit www.nlc.orgliyef. »»»»» 14 RESOLUTION REFERRED TO ENVIRONMENTAL QUALITY POLICY COMMITTEE +3. RESOLUTION OPPOSING THE BOARD OF DIRECTORS' DECISION TO DEFER ACTION ON AB 32 AND SB 375 AND TO ADOPT THE BOARD-APPOINTED TASK FORCE RECOMMENDATIONS Source: Desert/Mountain Division Referred to: Environmental Quality Policy Committee; Housing, Community & Economic Development Policy Committee; Revenue and Taxation Policy Committee; and Transportation, Communication & Public Works Policy Committee Recommendations to General Resolutions Committee: + Environmental Quality Policy Committee: . + Housing, Community and Economic Development Policy Committee: + Revenue and Taxation Policy Committee: + Transportation, Communication & Public Works Policy Committee: WHEREAS, the DesertlMountain Division of the League of California Cities has broad concerns about the economy; and WHEREAS, these concerns extend both to the ability of cities to deliver vital public services and the viability of businesses which are critical to the State's economic recovery; and WHEREAS, the DesertlMountain Division of the League of California Cities is concerned that cities lack the resources to implement existing State mandates imposed at either the regional or local level; and WHEREAS, the League of California Cities Board of Directors appointed a Task Force to craft a recommendation regarding AB 32 and SB 375, based upon the recommendations developed by four policy committees; and WHEREAS, the Task Force recommended that the League of California Cities Board of Directors request specific actions by Governor Schwarzenegger and the California Air Resources Board to delay certain deadlines and take other actions with respect to AB 32 and SB 375; and WHEREAS, the League of California Cities Board of Directors rejected the specific recommendations of the Task Force and four policy committees by deferring action on AB 32 and SB 375; and WHEREAS, the Desert/Mountain Division of the League of California Cities wishes to file an official protest of the Board of Directors' decision to defer action on a position regarding AB 32 and SB 375; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities, assembled during the Annual Conference in San Diego, September 17, 2010, that the League of California Cities finds, determines and orders the adoption of the consolidated recommendations of four policy committees and the Board appointed Task Force, as follows: 1. Request that the Governor exercise his authority to delay individual AB 32 implementation deadlines. 15 2. Request that the California Air Resources Board take the following three actions: • Revisit and update economic and growth assumptions used to estimate 2020 business-as-usual emissions and recalculate AB 32·goal; • Consider local government costs in all future studies relating to AB 32 and SB 375; and • Request that the SB 375 targets be set in a way to reflect the economy and scarce local resources. 3. Support (but not sponsor) any legislation that would suspend or delay implementation of SB 375 until there is funding and resources in place to implement individual mandates and requirements associated with the bill; and, be it further, RESOLVED, that the specific recommendations developed by the four policy committees and Task Force be considered by the General Assembly at the Annual Conference unless the Board of Directors reverses its deferred action stance on AB 32 and SB 375 and adopts the Task Force recommendations. 1/1/////// Background Information on Resolution No.3 Source: DesertlMountain Division Title: Resolution Opposing the Board of Directors Decision to Defer Action on AB 32 and SB 375 and to Adopt the Board-Appointed Task Force Recommendations Background: The DesertlMountain Division adopted a Resolution formally opposing the Board of Directors decision to defer action on the Task Force's recommendations regarding AB 32 and SB 375. We took this action out of concern of the impact these regulations will have on our economy and our ability to serve our constituents, and do not want to be complicit by remaining silent on this issue. The recommended revisions to the League's current positions on AB 32 and SB 375 were crafted by a Board-appointed Task Force after study of the issue by four League policy committees. The changes recommended specific actions by Governor Arnold Schwarzenegger and the California Air Resources Board to delay certain deadlines and take other actions with respect to AB 32 and to suspend or delay the implementation of SB 375 until state funding is provided for the implementation of its mandates. The DesertlMountain Division believes that the Board's decision to defer action on the specific recommendations developed by the four policy committees and Board-appointed Task Force does not represent the majority of the member cities. This Resolution is being presented for consideration by the General Assembly at the Annual Conference to allow the entire membership to weigh in on the decision of whether or not to adopt the Task Force recommendations regarding AB 32 and SB 375. »»»»» 16 RESOLUTION REFERRED TO HOUSING, COMMUNITY & ECONOMIC DEVELOPMENT POLICY COMMITTEE +3. RESOLUTION OPPOSING THE BOARD OF DIRECTORS DECISION TO DEFER ACTION ON AB 32 AND SB 375 AND TO ADOPT THE BOARD-APPOINTED TASK FORCE RECOMMENDATIONS Resolution #3 also referred to these policy committees: Environmental Quality; Revenue and Taxation; and Transportation, Communication & Public Works. Please see Environmental Quality Policy Committee section for the resolution and background information. 1111111/// +4. RESOLUTION RELATING TO RESPONSIBLE BANKING Source: Richard Alarcon, Council Member, Los Angeles and Karen Avilla, City Treasurer, Carson Referred to: Housing, Community & Economic Development Policy Committee; and Revenue and Taxation Policy Committee Recommendation to General Resolutions Committee: + Housing, Community and Economic Development Policy Committee: + Revenue and Taxation Policy Committee: WHEREAS, cities strive to spend taxpayer dollars wisely on services; and WHEREAS, cities invest taxpayer dollars with a range of institutions that provide financial service contracts each year; and WHEREAS, it is important to ensure that taxpayer dollars are invested in institutions that are not just fiscally sound, but are committed to investing back into our communities, generating positive investment and lending in our cities; and WHEREAS, cities can help support the nation's economic recovery by supporting financial institutions that in tum re-invest in our local communities; and WHEREAS, the national Community Reinvestment Act, passed by the U.S. Congress in 1977, pioneered the use of transparent, responsible banking, by starting a federal rating system to measure banks' local lending and investment activity in the communities they take deposits from, providing accountability to the communities that institutions serve; and WHEREAS, three decades have passed since the original passage of the Community Reinvestment Act (CRA), and due in part to the dramatic changes in the U.S. banking system since this time, CRA does not provide the level of detail needed for local municipalities to determine our financial partners' lending activity and investment within a single city alone; and WHEREAS, on March 20, 2002, the City of Philadelphia signed into law a requirement that all banks authorized to receive deposits from the City submit an annual statement of community reinvestment goals within Philadelphia, including but not limited to a summary of the home loans, small business loans, and other lending and investment activity within Philadelphia, which independent studies 17 have confirmed has resulted in increased access to credit among Philadelphia's minority and low-and moderate-income communities; and WHEREAS, the City of Cleveland enacted into law a similar Community Reinvestment Depository Ordinance in 1991, and sinc;e that time has negotiated over $10 billion in lending commitments and investments through designated Community Reinvestment Initiative agreements with designated depository banks, with an independent study by the Brookings Institution confirming that compared to comparable midwestern cities CI(lveland's CRA Ordinance has resulted in "more bang for the community development buck;" and WHEREAS, on March 5, 2010,the Los Angeles City Council unanimously passed a Responsible Banking Initiative that requires financial institutions with which the City contracts to provide an annual "report card" detailing investment and lending activity within Los Angeles, to allow the City to reward institutions that re-invest in Los Angeles by adding extra points to these institutions' applications during the City's RFP process for fmancial service providers; and WHEREAS, many municipalities could benefit from increased transparency about which of the financial institutions their city taxpayer dollars are invested in are in turn re-investing in their city's homes, businesses, and non-profits, which will allow cities to hold banks to a higher standard of re- investment by offering increased city business to those that are generating higher levels of investment, lending, and community service activity within their city; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities, assembled during the Annual Conference in San Diego, September 17, 2010, that the League of California Cities strongly encourages municipalities to require transparent, responsible banking from the financial institutions receiving city funds; and, be it further RESOLVED, that the League of California Cities serve as a clearinghouse of information on the responsible banking initiatives of municipalities across the country, such as those of Philadelphia, Cleveland, Los Angeles and Carson, California; in order to help California cities interested in taking steps to increase transparent, responsible banking in their own communities. 1/1/////// Background Information on Resolution No.4 Source: Richard Alarcon, Council Member, Los Angeles and Karen Avilla, City Treasurer, Carson Title: Resolution Relating to Responsible Banking Background: As a Councilmember from the City of Los Angeles and a Treasurer from the City of Carson, we know that stewards of public funds must strive to ensure that taxpayer dollars are invested in businesses and institutions that are not just fiscally sound, but committed to investing back into our communities. On Friday, March 5,2010, the Los Angeles City Council unanimously passed a Responsible Banking Initiative that Councilmember Alarcon introduced last year, which will require financial instifutions with which the City of Los Angeles does business to provide an annual "report card" detailing the institution's investment and lending activity within the City. The purpose of the report card is to determine which institutions the City does business with are in turn reinvesting in the City, by extending credit to residents and businesses, and investing capital in 18 commufiities and development projects. The report card will allow policy makers to reward institutions with above average rates of impact in the City, while decreasing business with those institutions that do not recycle dollars back into the local economy. This effort could be likened to a local version of the federal Community Reinvestment Act, by allowing local policymakers to review the community reinvestment activity of the financial institutions with which the City invests. It builds on the work of existing law in the cities of Philadelphia and Cleveland. Both the City of Philadelphia, in 2002, and the City of Cleveland, in 1991, passed laws requiring annual statements of community reinvestment goals from the institutions that manage their City deposits. The City of Cleveland reports that, from 1991 through 2008, Cleveland has negotiated over 10 billion dollars in lending commitments and investments with designated depository banks as a result of their responsible banking law. In a 2003 report, the independent Brookings Institution compared three Midwestern cities and praised the City of Cleveland for achieving "more bang for their community development buck" through the use of their Community Reinvestment and other innovative City laws. We owe it to the current and future residents of our Cities to ensure that taxpayer dollars are invested in responsible banking institutions that are creating opportunities for investment and lending in our communities. That's why we urge the League of California Cities to encourage municipalities to require transparent, responsible banking from financial service providers. With the strength of our collective wallets combined, Cities will be sending a powerful message to banks: invest in us, and we will invest in you. »»»»» RESOLUTIONS REFERRED TO REVENUE AND TAXATION POLICY COMMITTEE +3. RESOLUTION OPPOSING THE BOARD OF DIRECTORS DECISION TO DEFER ACTION ON AB 32 AND SB 375 AND TO ADOPT THE BOARD-APPOINTED TASK FORCE RECOMMENDATIONS Resolution #3 also referred to these policy committees: Environmental Quality; Housing, Community & Economic Development; and Transportation, Communication & Public Works. Please see Environmental Quality Policy Committee section for the resolution and background information. IIIIIIIIII +4. RESOLUTION RELATING TO RESPONSIBLE BANKING Resolution #4 also referred to the Housing, Community & Economic Development Policy Committee. Please see the Housing, Community & Economic Development Policy Committee section for the resolution and background information. 111111111/ -Continued, Revenue and Taxation Resolutions- 19 5. RESOLUTION RELATING TO UNFUNDED STATE MANDATES Source: City of Santa Clarita Referred to: Revenue and Taxation Policy Committee Recommendation to General Resolutions Committee: WHEREAS, unfunded mandates· imposed upon local governments, including cities, counties and special districts, by the State of California place a tremendous financial burden upon local governments; and WHEREAS, some of the mandates placed upon local governments are the result of actions by Boards and Commissions not directly accountable to the electorate; and WHEREAS, the State of California and many local governments within the state are under financial duress due to the continuing national economic crisis, and WHEREAS, approximately twelve perc.ent of Californians, are currently unemployed and struggling to pay for basic life necessities, well above the national average; and WHEREAS, mandates enacted by the State of California may result in the need for local agencies to increase fees or taxes to satisfy the requirements of the mandate; and . WHEREAS, as citied in a 2005 report on state mandates published by the League of California Cities, the original intent of Property Tax Relief Act of 1972, which established the concept of state reimbursement of local agencies for state mandated activities, was to limit the ability of local agencies to levy taxes; and WHEREAS, in 1979 the voters of the State of California approved Proposition 4 adding Article Xill B to the California Constitution, requiring the state to provide a subvention of funds to local governments for costs associated with state mandated programs, under specified conditions, and through. subsequ~nt legislation creating the Commission on state mandates; and WHEREAS, in 2004, the voters of the State of California adopted Proposition lA expanding the constitutional protections for local governments regarding state mandates; and WHEREAS, the State of California has struggled to balance its budget for the past several years and has chosen to borrow funds from local governments, thus reducing traditional revenues to local governments, forcing additional local program and service reductions and cutbacks; and WHEREAS, various federal and state laws and regulations may result hi the imposition of state mandates on local governments; and WHEREAS, an example of state imposed mandates are the establishment of Total Maximum Daily Loads (TMDL) for such things as bacteria, chloride, metals; and toxicity, and WHEREAS, in order to meet the obligations imposed by Regional Water Quality Control Boards throughout California, local agencies may need to implement or increase fees and taxes to pay for new programs or facilit,ies, in order to avoid penalties for non-compliance; and 20 WHEREAS, there appears to be no, correlation between the imposition of state mandates, taxpayer funded resources to pay for the costs of state mandates, California's high unemployment rate, and the fiscal conditions of the State of California and local governments; now, therefore be it RESOLVED, by the General Assembly of the League of California Cities, assembled during the Annual Conference in San Diego, September 17, 2010, that: 1. The League of California Cities work with its member cities and other local government partners to identify'situations in which local governments must increase fees or taxes to meet state mandated requirements; and 2. The League of California Cities petition the Governor of the State of California and Legislature of the State of California to suspend or eliminate certain state mandates until improvement of the national and California economy results in substantially lower statewide unemployment and fiscal solvency of the State of California and'local governments; and 3. The League of California Cities work with Members of Congress and the government of the United States to suspend or eliminate certain federal mandates, passed along to the states for implementation, until the improvement of the national economy results in substantially lower national unemployment and fiscal solvency of the United States, the State of California and local governments; and 4. That the League of California Cities will support legislation to suspend, eliminate, or otherwise modify the negative impacts of state mandates on local agencies, particularly in which a new local tax orfee or tax or fee increase is necessary to implement the mandate. 11//////// Background Information on Resolution No.5 Source: City of Santa Clarita Title: Resolution Relating to State Unfunded Mandates Background: Reaching back at least forty years, local governments, including cities, counties and special districts, have struggled with mandates placed upon them by the State of California. Under California law, whenever the Legislature, Governor, or a state agency enacts a new law, executive order, regulation, or rule that requires a local government to implement a new program or provide a higher level of service to an existing program, the state shall reimburse the local agency for the increased cost. Over the past two decades, 'the California Legislature has made a practice of borrowing, transferring, shifting, or otherwise conveying from local governments to the State of California, as part of the state budget balancing process, what have historically been considered local revenues. The failure of the State of California, for the most part, to repay these funds to local governments has led to ballot measures restricting the ability of the state to use local revenues to balance its continual budget deficit. Against this backdrop, state regulatory agencies continue to impose requirements upon local governments, which may result in the need to increase local fees or taxes. Failure to implementthe regulatory requirements may result in the imposition of substantial financial penalties, which must be paid for by the local government and ultimately, taxpayers or rate payers within the jurisdiction. 21 At a time when California's unemployment rate is in excess of 12%, which is well above the national unemployment rate, and California businesses are struggling to stay afloat in the worst national recession since the great depression of the 1930s, the question of regulatory relief must be considered. For example, many communities throughout the State of California are facing establishment of Total Maximum Daily Load (TMDL) requirements for such things as bacteria, chloride, metals, and toxicity. While the environmental or other goals that are sought to be achieved are laudable, regulatory requirements must be sensitive to the overlaying statewide and national economic climate and the ability of local governments to pay for new programs and enhancements. In the Santa Clarita area, the Los Angeles Regional Water Quality Control Board, through imposition of a Chloride TMDL mandate and its required implementation, is causing local sanitation district ratepayers to pay a 50% fee increase over four years for increased operational and new facility expenses and committing to long term additional increases. Failure to approve the increase will likely invite substantial fines, totaling in the millions of dollars collectively for the ratepayers. In a time of economic uncertainty and high unemployment, is it appropriate to require California taxpayers to pay for new regulatory requirements or is it reasonable to suspend or eliminate certain state mandates until such time as unemployment levels return to more traditional levels and national, state and local governments return to financial stability? »»»»» RESOLUTIONS REFERRED TO TRANSPORTATION, COMMUNICATION & PUBLIC WORKS POLICY COMMITTEE +3. RESOLUTION OPPOSING THE BOARD OF DIRECTORS DECISION TO DEFER ACTION ON AB 32 AND SB 375 AND TO ADOPT THE BOARD-APPOINTED TASK FORCE RECOMMENDATIONS Resolution #3 also referred to these policy committees: Environmental Quality; Housing, Community & Economic Development; and Revenue and Taxation. Please see Environmental Quality Policy Committee section for the resolution and background information. 6. RESOLUTION RELATED TO ENHANCING PUBLIC SAFETY WHILE DRIVING A MOTOR VEHICLE Source: City of Elk Grove Referred to: Transportation, Communication & Public Works Policy Committee Recommendation to General Resolutions Committee: WHEREAS, cities throughout the State of California hold the health and safety of their residents as a paramount concern; and WHEREAS, the use of text messages has grown exponentially in recent years; and WHEREAS, any time a driver attempts to send an electronic text message while driving, his or her attention is diverted from the road; and WHEREAS, a recent Virginia Tech study showed sending electronic text messages while driving makes an accident 23 times more likely; and 22 WHEREAS, a study conducted by The Transport Research Laboratory in the United Kingdom showed that sending text messages while driving is riskier than driving under the influence of alcohol or drugs; and WHEREAS, Senate Bill 28 and California Vehicle Code Section 23123.5 ban writing, sending, or reading electronic text messages while operating a motor vehicle in the state of California; and WHEREAS, the League supports this type of traffic safety enhancement as demonstrated through their support of motorcycle helmets, child restraints, seat belt and speed limit laws; now, therefore, be it RESOLVED, by the General Assembly of the League of California Cities, assembled during the Annual Conference in San Diego, September 17,2010, that the League encourages cities to promote safe driving across California and the education of the general public about the dangers oftexting while driving. IIIIIIIIII Background Information on Resolution No.6 Source: City of Elk Grove Title: Resolution Relating to Enhancing Public Safety While Driving a Motor Vehicle Background: On September 24, 2008, the Governor of California, Arnold Schwarzenegger, signed Senate Bill 28 ("SB 28") into law. SB 28 is codified in section 23123.5 of the California Vehicle Code and prohibits any person from driving a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication. SB 28 complements an existing law which Governor Schwarzenegger signed in 2006 requiring motorists to use hands-free devices while talking on a mobile phone when driving a motor vehicle. Many studies recognize that the distraction that occurs while using electronic devices while operating a motor vehicle is very dangerous: • It is estimated that 28% of crashes -1.6 million crashes per year -can be attributed to cell phone talking and texting while driving. (Source: National Safety Council) • Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (Source: Insurance Institute for Highway Safety) • Using a cell phone while driving delays a driver's reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (Source: University of Utah) Because the health and safety of the residents of Elk Grove is paramount to the members of the City Council; on May 12,2010, the Elk Grove City Council unanimously adopted a resolution promoting awareness of the dangers oftexting while driving. The City is embarking on an aggressive,. yet economical, public outreach campaign to educate its residents about the dangers of texting while driving, which includes: educational links on the City's Web site, a flyer in the city's utility billing insert which reaches every household, free promotional items for residents specifically geared toward this topic, and a spotlight feature in the City's bimonthly newsletter. Other cities in California are encouraged to enhance public safety in their community by educating residents about the dangers oftexting while driving a motor vehicle. Educational outreach will benefit 23 drivers, passengers, by-standards, bicyclists, walkers and runners. Local governments have the ability to implement cost-effective educational tools to communicate with residents about this important public safety issue. All local government officials and employees in California want to protect their families, themselves~ and others. Please put down your phone when you are driving or use a hands-free device and do not text. It's safe and it's the law. »»»»» [NOTE: No resolutions were assigned to the following policy committees: Employee Relations and Public Safety.] . ########## 24 TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: PUBLIC WORKS DATE: AUGUST 2, 2010 CMR:333:10 REPORT TYPE: CONSENT SUBJECT: Approval of a Contract with Alternative Resources Inc. in the Total Amount not to Exceed $197,758 for Energy/Compost Feasibility Study and Environmental Impact Initial Study RECOMMENDATION Staff recommends that Council approve and authorize the City Manager or his designee to execute the attached contract (Attachment A) with Alternative Resources Inc., in the total amount of $197,758 for the Energy/Compost Feasibility Study and Environmental Impact Initial Study. This amount includes $179,758 for basic services and $18,000 for additional services. BACKGROUND On April 5, 2010 Council directed staff to initiate a feasibility study for dry anaerobic digestion in Palo Alto. The final approved motion consisted of the following points: 1. Direct staff to initiate the process to hire a consultant to conduct a feasibility study and appropriate-level environmental review for a dry anaerobic digestion facility on 8 to 9 acres ofByxbee Park adjacent to the Regional Water Quality Control Plant; 2. Continue the moratorium on commercial waste acceptance at the Palo Alto Landfill; and 3. Provide an interim report to Council regarding the economics of the feasibility study options. A history of events leading up to the Council action on April 5, 2010 is detailed in CMR 165: 1 O. Prior to solicitation, the draft scope of work and time line for the feasibility study and environmental impact analysis was included in informational CMR:251:1O on May 24, 2010. DISCUSSION The result of the project will be a detailed feasibility study for a dry anaerobic energy facility in Palo Alto with the appropriate level of environmental impact review. The study will examine a facility that would recover energy from methane derived from dry anaerobic digestion from feedstocks consisting of food scraps, yard trimmings, and, possibly wastewater biosolids. Besides energy, the primary end product from the processes would be a marketable soil amendment material similar to finished compost. CMR:333.10 Page 10f4 An Initial Study Checklist pursuant to the California Environmental Quality Act (CEQA) will be prepared as early as possible during the study. Further CEQA "work may be performed as appropriate following the Initial Study Checklist. The location of the Palo Alto facility would be immediately southeast of the Palo Alto Regional Water Quality Control Plant on an 8 to 9 acre site per Council direction. Several project alternatives relating to the different possible feedstocks will be examined during the study. The costs, impacts, and benefits will be compared to a "no action" alternative and to the alternative of a similar processing facility located outside of Palo Alto, but within 20 miles. The proposed contract timeline for the overall study is included as Exhibit "B" in Attachment A. The first major task that will be performed by the Consultant is the facilitation of at least one community scoping meeting for the 'study. This public scoping session will collect ideas and concerns for the project to help guide the rest of the study. This will be especially helpful for costing out suggested environmental mitigation proposals. One such proposal is that the facility includes a green roof system that integrates with the closed landfill cap. A follow-up suggestion indicated that the Byxbee Park recreational trail system needs to· be cOl'lSidered in the design. Staff will present the results of the initial community meeting to the Parks and Recreation Commission tentatively scheduled for September 28,2010. The second major task will be the preparation of a preliminary economic analysis of the proposed facility funding and operating scenarios. The economic analysis will examine the project with and without a rent payment for use of the City-owned land. It will also include the economics of greenhouse gas (GHG) carbon credits and renewable energy credits. Lastly, it will present the ecoriomics in two main ways. The first would be in terms of the total overall costs and benefits to the City of Palo Alto and the partners of the Regional Water Quality Control Plant. The second way would be in terms of costs and benefits'to the individual enterprise funds and general fund (if applicable). Staff expects to present a draft of the preliminary economic report to Council in early 2011. The Tmal preliminary economic analysis would be presented by spring of 20 11 for further Council action and direction on the overall project. During the budget process in spring 2011, staff would initiate a formal capital improvement project (CIP) for the proposed facility depending on the outcome of future Council actions. Staff expects that an additional budget for the consultant beyond the initial contract award will be required to continue the project at that point. The contract with Alternative Resources Inc. is for study purposes only and does not constitute a design contract. This feasibility study together with the preliminary environmental impact assessment can then be used by Council to make further decisions regarding a future project. A full appropriate-level environmental impact report would then be performed through a contract amendment for additional services depending on future Council action. CMR:333.10 Page 2 of4 ummaryo o ICI Ion ocess S fS r ·tat" Pr Proposal DescriptionlNumber Energy/Compost Feasibility Study and Environmental Impact Initial Study (RFP #136602) Proposed Length of Project 15 months Number of Proposals Mailed 34 Total Days to Respond to Proposal 21 Pre-Proposal Meeting? Yes Number of Companies at Pre- Proposal Meeting on June 9, 2010 18 Number of Proposals Received: 7 1. Institute for Environmental Management Palo Alto, CA 2. Alternative Resources Inc. Concord,MA 3. WorleyParsons Group, Inc. Martinez, CA 4. DRS Corporation Americas San Francisco, CA 5. HDR Engineering, Inc. San Francisco, CA 6. Golder Associates, Inc. Sunnyvale, CA 7. Carollo Engineers, Inc. Walnut Creek, CA Range of Proposal Amounts $179,785 to $348,000 Submitted An evaluation committee consisting of 3 staff members from Public Works evaluated the written proposals. Three firms were selected for interviews. An expanded evaluation committee consisting of 5 staff members from Public Works and Utilities then unanimously selected Alternative Resources Inc. as the top proposer after interviewing them and the 2 other finalists on July 1,2010. Alternative Resource Inc. is a small research firm with strong experience studying waste conversiop-technologies, including dry anaerobic digestion. Alternative Research Inc. was selected because they had the most direct experience analyzing similar potential facilities in the United States for government clients. The firm (and its sub-consultants) showed the most detailed understanding of the work which is needed in Palo Alto's situation. Their approach for data collection for dry anaerobic digestion was extremely well-organized, and they recognized the need to be fully transparent with respect to all data and analysis. Other firm's proposals were good, but not quite as strong. RESOURCE IMPACT Funding for this study is comprised of $75,000 from Refuse Fund operating budget for landfill contract services in fiscal year 2010-11; $47,758 from the Wastewater Treatment Fund; and $75,000 from the Electric Fund Calaveras Reserve. (Approval from Council to use $75,000 from the Calaveras Reserve is required and is the subject of a separate, companion City Manager's Report (CMR:323:10) also on the August 2, 2010 Council Agenda. This expendIture has been reviewed by the Utilities Advisory Commission and is recommended for approval. CMR:333.10 Page 3 of4 ATTACHMENT A CITY OF PALO ALTO CONTRACT NO.: CI1136602 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND ALTERNATIVE RESOURCES, INC. FOR PROFESSIONAL SERVICES ENERGY/COMPOST FEASIBILITY STUDY AND ENVIRONMENTAL IMPACT INITIAL STUDY This AGREEMENT is entered into on this day of August, 2010, by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("CITY"), and ALTERNATIVE RESOURCES, lNC., a corporation in the State of Massachusetts, with offices located at 1732 Main Street, Concord, MA 01742-3837 ("CONSULTANT"). RECITALS The following recitals are a substantive portion of this Agreement. A. CITY intends to conduct a Feasibility Study for a Dry Anaerobic Digestion facility for organic residuals ("Project") and desires to engage a consultant to prepare the Feasibility Study in connection with the Project ("Services"). B. CONSULTANT has represented that it has the necessary professional expertise, qualifications, and capability, and all required licenses and/or certifications to provide the Services. C. CITY in reliance on these representations desires to engage CONSULTANT to provide the Services as more fully described in Exhibit "A", attached to and made a part of this Agreement. NOW, THEREFORE, in consideration of the recitals, covenants, terms, and conditions,this Agreement, the parties agree: AGREEMENT SECTION 1. SCOPE OF SERVICES. CONSULTANT shall perform the Services described in Exhibit "A" in accordance with the terms and conditions contained in this Agreement. The performance of all Services shall be to the reasonable satisfaction of CITY. SECTION 2. TERM. The term of this Agreement shall be from the date of its full execution through January 31,2012 unless terminated earlier pursuant to Section 19 of this Agreement. SECTION 3. SCHEDULE OF PERFORMANCE. Time is of the essence in the performance of Services under this Agreement. CONSULT ANT shall complete the Services within the term .ofthis Agreement and in accordance with the schedule set forth in Exhibit "B", attached to and made a part of this Agreement. Any Services for which times for performance are not specified in this Agreement shall be commenced and completed by CONSULTANT in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the CONSULTANT. CITY's Professional Services Rev. January 11, 2010 CITY OF PALO ALTO CONTRACT NO.: Cl1136602 agreement to extend the term or the schedule for performance shall not preclude recovery of damages for delay if the extension is required due to the fault of CONSULTANT. SECTION 4. NOT TO EXCEED COMPENSATION. The compensation to be paid to CONSULTANT for performance of the Services described in Exhibit "A", including both payment for professional services and reimbursable expenses, shall not exceed one hundred seventy-nine thousand seven hundred fifty-eight dollars ($179,758). In the event Additional Services are authorized, the total compensation for services and reimbursable expenses shall not exceed one hundred ninety-seven thousand seven hundred fifty~eight dollars ($197,758). The applicable rates and schedule of payment are set out in Exhibit "C-l", entitled "HOURLY RATE SCHEDULE," which is attached to and made a part of this Agreement. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of Exhibit "C". CONSULTANT shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. Additional Services shall mean any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described in Exhibit "A". SECTION 5. INVOICES. In order to request payment, CONSULTANT shall submit monthly invoices to the CITY describing the services performed and the applicable charges (including an identification of personnel who performed the services, hours worked, hourly rates, and reimbursable expenses), based upon the CONSULTANT's billing rates (set forth in Exhibit "C-l "). If applicable, the invoice shall also describe the percentage of completion of each task. The information in CONSULTANT's payment requests shall be subject to verification by CITY. CONSULTANT shall send all invoices to the City's project manager at the address specified in Section 13 below. The City will generally process and pay invoices within thirty (30) days of receipt. SECTION 6. QUALIFICATIONS/STANDARD OF CARE. All of the Services shall be performed by CONSULTANT or under CONSULTANT's supervision. CONSULTANT represents that it possesses the professional and technical personnel necessary to perform the Services required by this Agreement and that the personnel have sufficient skill and experience to perform the Services assigned to them. CONSULTANT represents that it, its employees and subconsultants, if permitted, have and shall maintain during the term of this Agreement all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the Services. All of the services to be furnished by CONSULT ANT under this agreement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. SECTION 7. COMPLIANCE WITH LAWS. CONSULTANT shall keep itself informed of and in compliance with all federal, state and local laws, ordinances, regulations, and orders that may affect in any manner the Project or the performance of the Services or those engaged to perform Services under this Agreement. CONSULTANT shall procure all permits and licenses, pay all 2 Professional Services Rev. January 11, 2010 \\CC-TERRA\jarreoI\PURCHDOC\SAP Bids and Proposals\RFP\RFP136602 Fnergy-Compost Feasibility Study\Contract CII136602 ALTERNATIVE RESOURCES. doc CITY OF PALO ALTO CONTRACT NO.: C11136602 charges and fees, and give all notices required by law in the perfonnance of the Services. SECTION 8. ERRORS/OMISSIONS. CONSULTANT shall correct, at no cost to CITY, any and all errors, omissions, or ambiguities in the work product submitted to CITY, provided CITY gives notice to CONSULTANT. If CONSUL T ANT has prepared plans and specifications or other design documents to construct the Project, CONSULTANT shall be obligated to correct any and all errors, omissions or ambiguities discovered prior to and during the course of construction of the Project. This obligation shall survive tennination of the Agreement. SECTION 9. COST ESTIMATES. If this Agreement pertains to the design of a public works project, CONSULTANT shall submit estimates of probable construction costs at each phase of design submittal. If the total estimated construction cost at any submittal exceeds ten percent (10%) of the CITY's stated construction budget, CONSULTANT shall make recommendations to the CITY for aligning the PROJECT design with the budget, incorporate CITY approved recommendations, and revise the design to meet the Project budget, at no additional cost to CITY. SECTION 10. INDEPENDENT CONTRACTOR. It is understood and agreed that in perfonning the Services under this Agreement CONSULTANT, and any person employed by or contracted with CONSULTANT to furnish labor and/or materials under this Agreement, shall act as and be an independent contractor and not an agent or employee of the CITY. SECTION 11. ASSIGNMENT. The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement nor the perfonnance of any of CONSULT ANT's obligations hereunder without the prior written consent of the city manager. Consent to one assignment will not be deemed to be consent to any subsequent assignment. Any assignment made without the approval of the city manager will be void. SECTION 12. SUBCONTRACTING. Notwithstanding Section 11 above, CITY agrees that subconsultants may be used to complete the Services. The sub consultants authorized by CITY to perfonn work on this Project are: 1. Douglas Environmental 2. Ascent Environmental 3. Facility Builders & Erectors CONSULTANT shall be responsible for directing the work of any sub consultants and for any compensation due to subconsultants. CITY assumes no responsibility whatsoever concerning compensation. CONSULT ANT shall be fully responsible to CITY for all acts and omissions of a subconsultant. CONSULT ANT shall change or add subconsultants only with the prior approval of the city manager or his designee. SECTION 13. PROJECT MANAGEMENT. CONSULTANT will assign James Binder as the Principal to have supervisory responsibility for the perfonnance, progress, and execution of the Services and as the project manager to represent CONSULTANT during the day-to-daywork on the 3 Professional Services Rev. January 11, 2010 \\CC-TERRA \jarreol\PURCHDOC\SAP Bids and Proposals\RFP\RFP136602 Energy-Compost Feasibility Study\Contract Cll136602 ALTERNATIVE RESOURCES. doc CITY OF PALO ALTO CONTRACT NO.: CI1136602 Project. If circumstances cause the substitution of the project director, project coordinator, or any other key personnel for any reason, the app~intment of a substitute project director and the assignment of any key new or replacement personnel will be subject to the prior written approval of the CITY's project manager. CONSULTANT, at CITY's request, shall promptly remove personnel who CITY finds do not perform the Services in an acceptable manner, are uncooperative, or present a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property. The City's project manager is Phil Bobel, Public Works Department, Environmental Compliance Division, 2501 Embarcadero Way, Palo Alto, CA 94303, Telephone: 650-329-2285. The project manager will be CONSULTANT's point of contact with respect to performance, progress and execution of the Services. The CITY may designate an alternate project manager from time to time. SECTION 14. OWNERSHIP OF MATERIALS. Upon delivery, all work product, including without limitation, all writings, drawings, plans, reports, specifications, calculations, documents, other materials and copyright interests developed under this Agreement shall be and remain the exclusive property of CITY without restriction or limitation upon their use. CONSULT ANT agrees that all copyrights which arise from creation of the work pursuant to this Agreement shall be vested in CITY, and CONSULTANT waives and relinquishes all claims to copyright or other intellectual property rights in favor of the CITY. Neither CONSULT ANT nor its contractors, if any, shall make any of such materials available to any individual or organization without the prior written approval of the City Manager or designee. CONSULTANT makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the sc?pe of work. SECTION 15. AUDITS. CONSULTANT will permit CITY to audit, at any reasonable time during the term of this Agreement and for three (3) years thereafter, CONSULTANT's records pertaining to matters covered by this Agreement. CONSULT ANT further agrees to maintain and retain such records for at least three (3) years after the expiration or earlier termination of this Agreement. SECTION 16. INDEMNITY. D[Option A applies to the following design professionals pursuant to Civil Code Section 2782.8: architects; landscape architect~; registered professional engineers and licensed professional land surveyors.) 16.1. To the fullest extent permitted by law , CONSULT ANT shall protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an "Indemnified Party") from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorneys fees, experts fees, court costs and disbursements ("Claims") that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party. IZI [Option B applies to any consultant who does not qualify as a design professional as def"med in Civil Code Section 2782.8.] 16.1. To the fullest extent permitted by law , CONSULT ANT shall 4 Professional Services Rev. January 11,2010 \\CC-TERRA\jarreol\PURCHDOc\sAP Bids and Proposals\RFP\RFP136602 Energy-Compost Feasibility Study\Contract CIl136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cl1136602 protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents (each an "Indemnified Party") from and against any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, including all costs and expenses of whatever nature including attorneys fees, experts fees, court costs and disbursements ("Claims") reSUlting from, arising out of or in any manner related to performance or nonperformance by CONSULTANT, its officers, employees, agents or contractors under this Agreement, regardless of whether or not it is caused in part by an Indemnified Party. 16.2. Notwithstanding the above, nothing in this Section 16 shall be construed to require CONSULTANT to indemnify an Indemnified Party from Claims arising from the active negligence, sole negligence or willful misconduct of an Indemnified Party. 16.3. The acceptance of CONSULTANT's services and duties by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section 16 shall survive the expiration or early termination of this Agreement. SECTION 17. WAIVERS. The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Agreement, or of the provisions of any ordinance or law, will not be deemed to be a waiver of any other term, covenant, condition, provisions, ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, ordinance or law. SECTION 18. INSURANCE. 18.1. CONSULTANT, at its sole cost and expense, shall obtain and maintain, in full force and effect during the term of this Agreement, the insurance coverage described in Exhibit "D". CONSULT ANT and its contractors, if any, shall obtain a policy endorsement naming CITY as an additional insured under any general liability or automobile policy or policies. 18.2. All insurance coverage required hereunder shall be provided through carriers with AM Best's Key Rating Guide ratings of A-:VII or higher which are licensed or authorized to transact insurance business in the State of California. Any and all contractors of CONSULTANT retained to perform Services under this Agreement will obtain and maintain, in full force and effect during the term of this Agreement, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 18.3. Certificates evidencing such insurance shall be filed with CITY concurrently with the execution of this Agreement. The certificates will be subj ect to the approval of CITY' s Risk Manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled, or materially reduced in coverage or limits, by the insurer except after filing with the Purchasing Manager thirty (30) days' prior written notice of the cancellation or modification, CONSULT ANT shall be responsible for ensuring that current certificates evidencing the insurance are proVided to CITY's Purchasing Manager during the entire term of this Agreement. 18.4. The procuring of such required policy or policies of insurance will not be 5 Professional Services Rev. January 11,2010 \\CC-TERRA \jarreol\PURCHDOC\SAP Bids and Proposals\RFP\RFP136602 Energy-Cornpost Feasibility Study\Con1ract Cl1136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: C11136602 construed to limit CONSULT ANT's liability hereunder nor to fulfill the indemnification provisions of this Agreement. Notwi~standing the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Agreement, including such damage, injury, or loss arising after the Agreement is terminated or the term has expired. SECTION 19. TERMINATION OR SUSPENSION OF AGREEMENT OR SERVICES. 19.1. The city manager may suspend the performance of the Services, in whole or in part, or terminate this Agreement, with or without cause, by giving ten (10) days prior written notice thereof to CONSULTANT. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance of the Services. 19 .2. CONSULTANT may terminate this Agreement or suspend its performance of the Services by giving thirty (30) days prior written notice thereofto CITY, but only in the event of a substantial failure of performance by CITY. 19.3. Upon such suspension or termination, CONSULTANT shall deliver to the City Manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONSULTANT or its contractors, if any, or given to CONSULTANT or its contractors, if any, in connection with this Agreement. Such materials will become the property of CITY. 19.4. Upon such suspension or termination by CITY, CONSULTANT will be paid for the Services rendered or materials delivered to CITY in accordance with the scope of services on or before the effective date (i.e., 10 days after giving notice) of suspension or termination; provided, however, if this Agreement is suspended or t6minated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT's services which are of direct and immediate benefit to CITY as such determination may be made by the City Manager acting in the reasonable exercise ofhislher discretion 19.5. No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Agreement. SECTION 20. NOTICES. All notices hereunder will be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: To CITY: Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 With a copy to the Purchasing Manager 6 Professional Services Rev. January 11,2010 \\CC-TERRA\jarreol\PURCHDOC\sAP Bids and Proposals\RFP\RFPI36602 Fnergy-Compost Feasibility Study\Contract Cl I 136602 ALTERNATIVE RESOYRCES.doc CITY OF PALO ALTO CONTRACT NO.: Cl1136602 To CONSULTANT: Attention of the project,director at the address of CONSULTANT recited above SECTION 21. CONFLICT OF INTEREST. 21.1. In accepting this Agreement, CONSULTANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 21.2. CONSULTANT further covenants that, in the performance of this Agreement, it will not employ sub consultants, contractors or persons having such an interest. CONSULTANT certifies that no person who has or will have any financial interest under this Agreement is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. 21.3. If the Project Manager determines that CONSULTANT is a "Consultant" as that term is defined by the Regulations of the Fair Political Practices Commission, CONSULTANT shall be required and agrees to file the appropriate fmancial disclosure documents required by the Palo Alto Municipal Code and the Political Reform Act. SECTION 22. NONDISCRIMINATION. As set ,forth in Palo Alto Municipal Code section 2.30.510, CONSULTANT certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. CONSULT ANT acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. SECTION 23. ENVIRONMENTALLY PREFERRED PURCHASING AND ZERO WASTE REQUIREMENTS. CONSULTANT shall comply with the City's Environmentally Preferred Purchasing policies which are available at the city's Purchasing Department which are incorporated by reference and may be amended from time to time. CONSULT ANT shall comply with waste reduction, reuse, recycling and disposal requirements of the City's Zero Waste Program. Zero Waste best practices include first minimizing and reducing waste; second, reusing waste and third, recycling or compo sting waste. In particular, Consultant shall comply with the following zero waste requireII\ents: • All printed materials provided by Consultant to City generated from a personal computer and printer including but not limited to, proposals, quotes, invoices, reports, and public education materials, shall be double-sided and printed on a minimum of30% or greater post-consumer content paper, unless otherwise approved by the City's Project Manager. Any submitted materials printed by a professional printing company shall be a minimum of30% or greater post-consumer material and printed with vegetable based inks. • Goods purchased by Consultant on behalf of the City shall be purchased in 7 Professional Services Rev, January 11,2010 \\CC-TERRA \jarreo\\PURCHDOC\SAP Bids and Proposa\s\RFP\RFP 136602 Energy-Compost Feasibility Study\Contract C 11136602 ALTERNA TlVE RESOURCES,doc CITY OF PALO ALTO CONTRACT NO.: C11136602 accordance' with the City's Environmental Purchasing Policy including but not limited to Extended Producer Responsibility requirements for products and packaging. A copy of this policy is on file at the Purchasing Office. • Reusable/returnable pallets shall be taken back by the Consultant, at no additional cost to the City, for reuse or recycling. Consultant shall provide documentation from the facility accepting the pallets to verify that pallets are not being disposed. SECTION 24. NON-APPROPRIATION 24.1. This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section 24.8 shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. 24.2. The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. SECTION 25. MISCELLANEOUS PROYISIONS. 25.1. This Agreement will be governed by the laws of the State of California. 25.2. In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California in the County of Santa Clara, State of California. 25.3. The prevailing party in any action brought to enforce the provisions of this Agreement may recover its reasonable costs and attorneys' fees expended in connection with that a~tion. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by it as well as any attorneys' fees paid to third parties. 25.4. This document represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 25.5. The covenants, terms, conditions and provisions of this Agreement will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants of the parties. 25.6. If a court of competent jurisdiction finds or rules that any provision of this Agreement or any amendment thereto is void or unenforceable, the unaffected provisions of this Agreement and any amendments thereto will remain in full force and effect. 8 Professional Services Rev. January II, 2010 \\CC-TERRA\jarreol\PURCHDOc\sAP Bids and Proposals\RFP\RFP136602 Energy-Compost Feasibility Study\Contract CII136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cl1136602 25.7. All exhibits referred to in this Agreement and any addenda, appendices, attachments, and schedules to this Agreement which, from time to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Agreement and will be deemed to be a part of this Agreement. 24.10 If, pursuant to this contract with CONSULTANT, City shares with CONSULTANT personal information as defined in California Civil Code section 1798.81.5( d) about a California resident (''Personal Information"), CONSULTANT shall maintain reasonable and appropriate security procedures to protect that Personal Information, and shall inform City immediately upon learning that there has been a breach in the security of the system or in the security of the Personal Information. CONSULTANT shall not use Personal Information for direct marketing purposes without City's express written consent. 24.11 All unchecked boxes do not apply to this agreement. 9 Professional Services Rev. January 11, 2010 \\CC-TERRA\jarreo)\PURCHDOc\sAP Bids and Proposa)s\RFP\RFPI36602 Fnergy-Compost Feasibility Study\Contract C11136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cll13()602 CITY OF PALO ALTO CONSllLTANT: City Manager (Required for contracts over $85,0(0) Purchusingi'v1anager (Required for contracts over $25,000) Contracts Adrninistrator (Required for contr;lctsundet$2:5,OOO) Af>PROVED AS 'rOFORM: Senior AssistanfCity Attorney l\,(taclunents: Al.:natNATlVE RESOlJ EXI'HBIT "A": EXIHBIT ('B": EXt-HBrr "C": SCOPE OF WORK SCHEDULE.OF PERFORMANCE COMPENSATION EXHIB1T "e-I": EXHIBIT "D": SCHEDULE OF RATES INSURANCE REQLHREMEN'fS Hl I'rnlessioHid S~"!vke:> Rev. Jllm:ury I!, 201 I) \\CC·ITRRA\pfH.ol\PURCHPOC\SAl' Bid~ and PtQ!~)1ii\h\jUI'\RFP!J6Ii()2Iinrrgy.C{)miWS! Feaslbilily $tHJy\C<)nhh('l CI! 1366n2 ALTERN,'\ liVE RESOURCES.do'-. CITY OF PALO ALTO CONTRACT NO.: Cl1136602 EXHIBIT" A" SCOPE OF SERVICES GENERAL DESCRIPTION OF WORK The project is to prepare a Feasibility Study for a Dry Anaerobic Energy/Compost Facility in the City of Palo Alto, California. The facility would recover energy from methane derived from dry anaerobic digestion of food scraps, yard trimmings, and, possibly wastewater biosolids. The chief residual from the processes would be compost. The Feasibility Study would include an economic, greenhouse gas, and environmental impact analysis. An fuitial Study (CEQA Checklist) pursuant to the California Environmental Quality Act will also be prepared. (Further California Environmental Quality Act work may be performed through a Contract Amendment.) Several suboptions will be studied. The costs, impacts, and benefits will be compared to a "no action" alternative and to the alternative of a similar processing facility located outside of Palo Alto, but within 20 miles. The.location of the Palo Alto facility would be immediately southeast of the Palo Alto Regional Water Quality Control Plant on an 8-9 acre site. BACKGROUND The City of Palo Alto currently handles organic residuals in the following ways: 1. Yard trimmings are composted at the Palo Alto landfill site in uncovered windrows; 2. Residential food scraps are disposed of with the garbage and landfilled in South San Jose; 3. Commercial food scraps are increasingly being source separated and composted near Gilroy, CA, with the remainder being landfilled in South San Jose; and 4. Wastewater Biosolids are dewatered and incinerated at the Regional Water Quality Control Plant in Palo Alto. The 8-9 acre site described above is currently on dedicated Parkland. The site would have to be undedicated by a vote of the residents before an Energy/Compost Facility could be constructed. A number of other approvals and permits would also be needed. However, this Scope of Services does nnt include working on these approval processes. The City already operates its own gas and electric utilities, which are potential users of gas or energy generated by an anaerobic digestion facility. The electric enterprise fund has been directed to procure 33% of its electric supply from renewable sources by 2015. The gas enterprise fund is investigating opportunities to supply some load using biogas. The City also fuels a portion of its vehicle fleet with compressed natural gas, which is another potential use for biogas generated by the facility PROJECT APPROACH The Consultant will evaluate and compare three basic alternatives: Alternative 1: A new dry anaerobic digestion facility adjacent to the Palo Alto Wastewater Treatment Plant. Alternative 2: A similar Regional Facility adjacent to the San Jose Wastewater Treatment Plant Alternative 3: The current facilities and plans which Palo Alto has arranged for its organics residuals following closure of the Palo Alto Landfill. The City will provide much of the data for the analysis of Alternatives 2 and 3. The majority of the Consultants work will be on Alternative 1. There are two sites involved in Alternative I, the 8-9 acre Landfill site just Southeast of the Wastewater Treatment Plant, and the Wastewater 1 Professional Services Rev. January II, 2010 \\CC-TERRA \jarreoJ\PURCHDOc\sAP Bids and ProposaJs\RFP\RFPJ36602 Energy-Compost Feasibility Study\Contract CI 1 136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: C11136602 Treatment Plant itself. Therefore, there will be sub alternatives to Alternative 1 as follows: Sub-options to Alternative 1: 1a.) A new dry anaerobic digestion for yard, food and biosolids on the landfill site (biosolids in separate cells). lb.) Dry anaerobic digestion for yard, food and wet anaerobic digestion for biosolids on the landfill site. . 1 c.) Dry anaerobic digestion for yard and food on the landfill site and wet anaerobic digestion for biosolids on the Wastewater Plant site. 1 d.) Dry anaerobic digestion for yard and food waste and no methane production from the biosolids. The analYsis of all four sub-options of Alternative 1 will assume that a common methane energy recovery facility will be located on the Landfill site. The analysis of all main options and sub~ options will include: 1. A financial analysis; 2. A life-cycle analysis of greenhouse gas emissions; and 3. An analysis of environmental and other impacts. The analysis of the wet anaerobic digestion process in Alternative 2 and Alternative 3 will be performed through a separate, parallel study: the Wastewater Long Range Planning process. The firm selected for that study will provide the evaluation of wet anaerobic digestion to the Consultant. Following submittal of Preliminary Analysis (Task 4), City will consider whether other alternatives should be considered as well. For example, it may become apparent that an alternative of a somewhat larger or smaller site would better accommodate a cost effective option, and be within the intent of the Council AprilS, 2010 Directive to staff. CONSULTANT SERVICES TASK 1: Development of Detailed Workplan The Consultant will develop a draft detailed Workplan and attend a kick-offmeeting in Palo Alto with City representatives. The draft Workplan will be available for review prior to the meeting. Other goals of the kick-off meeting will be to review the draft Workplan and schedule, to establish the City's goals, objectives and expectations for the Feasibility Study and Environmental Impact Initial Study, and to establish lines of communication. TASK 2: Community Scoping for Feasibility Study and for Environmental Review The Consultant will attend a community meeting arranged by the City to solicit input on the Feasibility Study and Environmental Impact Initial Study. In addition to gathering information from the public on the Feasibility Study, a primary purpose of the community scoping meeting will be to identify key community concerns regarding the project's potential environmental effects. The CEQA environmental review process will be described, as necessary, and the opportunities for the public to participate in the environmental review process will be identified. Following the meeting, City comments will be incorporated into and a final Workplan will be issued .. 2 Professional Services Rev. January 11,2010 \\CC-TERRA\jarreo\\PURCHDOc\sAP Bids and Proposa\s\RFP\RFP136602 Fnergy-Compost Feasibility Study\Contract CII136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cll136602 TASK 3: Preparation of Draft Preliminary Financial and Greenhouse Gas Analysis The Consultant will develop a financial model to evaluate each of the four (4) sub-options of Alternative 1. Using budgetary cost estimates supplemented with additional information such as estimated financing costs, the Consultant will calculate annual costs per ton and the total present value cost over the life cycle for each sub-option. The economic model will be constructed to enable the analysis of alternative project development scenarios (for example, private ownership and operation compared to publically-financed designlbuild/operate implementation), as well as the impact of potential grant and funding sources. In addition, the economic model will provide for consideration of the potential cost-savings associated with the prevailing tax exempt market should the City own the energy/compost facility. The preliminary financial model will be submitted to the City for review. Key environmental parameters will be considered in preparing the draft preliminary evaluation. The key environmental parameters will be identified through consultation with the City, through the community scoping meeting input, and based on the professional experience of the project team. The key environmental parameters will be presented in a data management system format. The greenhouse gas (GHG) analysis will discuss the current state of the science (e.g., Intergovernmental Panel on Climate Change's [IPCC] Fourth Assessment Report) along with applicable r~gu1atory framework and relevant guidance (e.g., Assembly Bill [AB] 32, recently adopted CEQA Guideline amendments and Bay Area Air Quality Management District's [BAAQMD] Air. Quality Guidance and GHG Thresholds of Significance). Specifically, as required by Senate Bill 97, the CEQA Guidelines were revised on December 30,2009, to address GHG emissions under CEQA; this analysis will comply with theses newly adopted guidelines along with those adopted by BAAQMD on June 2, 2010. The following analysis willbe conducted for all alternatives and sub-options. For project-generated construction-related emissions, the Urban Emissions Model (URBEMIS) will be used to estimate increases in GHGs (e.g., heavy-duty construction equipment exhaust). This modeling will be based on BAA..QMD-recommended input parameters, project-specific construction data (e.g., size of disturbed ground area, construction phasing schedule), and URBEMIS default settings. URBEMIS, the BAAQMD GHG Model (BGM), and methods from the California Air Resources Board (ARB) will be used to estimate direct project-generated operational-related emissions of GHGs for mobile, stationary, and area source types (e.g., vehicle trips associated with facility employees and material collection and delivery). This modeling will be based on BAAQMD- recommended input parameters, project-specific operational data (e.g., type and size of the proposed facility, operational schedule), default settings, and project specific traffic data (e.g., overall trip generation and vehicle miles traveled [VMT]). Other applicable quantification methods, emissions factors, and assumptions protocols from, but not limited to, the Western Climate Initiative, IPCC, Califomia Climate ActIon Registry's General Reporting Protocol, and ARB will be used to estimate long-term operational-related indirect source emissions. These types of facilities are not a covered sector under ARB regulation for the mandatory reporting of GHG emissions; however, aspects of the digester offset quantification protocol may apply. 3 Professional Services Rev. January 11, 2010 \\CC-TERRA \jarreol\PURCHDOC\SAP Bids and Proposals\RFP\RFP136602 Fnergy-Compost Feasibility Study\Con1ract CII136602 ALTERNA TlVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: ,Cl1136602, Additionally, though mandatory reporting would not be required or utilization of the digester offset protocol, quantification methods selected for this project will rely on ARB requirements and default emission factors, where applicable to this exact facility type, as stated in the regulation for usability in the future and substantiation of approach for legal defensibility. This analysis will also address the GHG emissions (e.g., lifecycle) from the alternate fates (e.g., composting, land filling, and incinerating) of the wastes by virtue of the collection of these wastes for use with regards to the proposed project. Increases in GHGs will be compared to applicable thresholds and mitigation measures prepared as needed that clearly identify timing, responsibility, and performance standards. A two-tiered approach will be used to assess the project's potential generation ofGHGs and its incremental contribution to the cumulative effect resulting from emissions of GHGs as follows: (1) the potential for project-generated GHG emissions to have a significant impact on the environment and (2) the potential for the project to conflict with applicable plans, policies, or regulations adopted for the purpose of reducing GHG emissions. The amount ofGHGs determined in this analysis (and associated impacts) will be presented in a data management system. TASK 4: Preparation of Final Preliminary Financial and Greenhouse Gas Analysis Based on the City's comments from review of the preliminary financial and greenhouse analysis, a final preliminary analysis will be submitted to the City. This will include a working model in Excel format that will allow the City to test a change in clearly identified variables to assess the impact on life-cycle cost and greenhouse gas emissions. TASK 5: Preparation of Draft Feasibility Study and California Environmental Quality Act Checklist The Consultant will assist the City in presenting the preliminary fmancial analysis to the Community and City Council. In consultation with the City, comments and suggestions received from these presentations will be incorporated into a draft feasibility report which will be prepared to succinctly compile the results of the work performed. The report will include an overview, introduction, waste analysis, conversion technology facility description, and economic analysis. The introduction will include a description of the project planning and history, system elements, and participants. The waste analysis section of the report will include an overview of the existing solid waste management system in the City as well as summarizing available information on waste generation, composition of yard trimmings, food scraps, and biosolids, and waste flow control provisions. Site regulatory and permitting considerations will be included with descriptions of the technologies responding to the request-for-information described in Task 8. The economic analysis section of the report will include a discussion of scope and methods, capital and operation and maintenance cost estimates, financing considerations, and life-cycle cost analysis with sensitivities. Following presentation of the Preliminary Analysis to the community and City Council, the Consultant will prepare a Draft CEQA Initial Study (CEQA Checklist). The Consultant will coordinate with City of Palo Alto staff and the project team members to identify the elements to be included in the Initial Study project description. The project description will focus on the changes anticipated with implementation of the Feasibility Study. Depending upon the alternative approach selected by the City, the key considerations will likely include the odor and 4 Professional Services Rev. January 11, 2010 \\CC-TERRA\jarreol\PURCHDOC\sAP Bids and Proposals\RFP\RFP136602 Fnergy-Compost Feasibility Study\Con1ract CIl136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cll136602 traffic generating potential of the proposed Dry Anaerobic Energy/Compost Facility and its compatibility with Byxbee Park users, biological resources, and the nearby municipal airport. The Environmental Checklist Form will be completed with explanations for each response for the proposed proj ect. The level of analysis and degree of impact will vary depending on the environmental topic. Mitigation measures will be developed, when necessary, to minimize environmental impacts anticipated from the proposed project. An administrative draft Initial Study will be prepared for review by City staff and the project team members. The Initial Study will be revised based on the comments received on the administrative draft document. The completed document will be presented to the City for public distribution. TASK 6: Preparation of Final Feasibility Study, California Environmental Quality Act Checklist, and Workplan for Completion of California Environmental Quality Act Analysis The Consultant will assist the City in presenting the draft Feasibility Study to the Community and to City Council. Comments and suggestions received from these presentations will be incorporated, in consultation with the City, into a fmal Feasibility Study. Feedback gathered during the City Council meeting will be used to finalize the Initial Study including any information presented regarding potential environmental effects or suggested mitigation strategies. The administrative draft Initial Study will be revised based on the comments received during the City Council meeting. The completed document will be submitted to the City TASK 7: Preparation ofWorkplan for Complete California Environmental Quality Act Analysis Following completion ofthe Initial Study, the Consultant will confer with the City and the project team regarding the appropriate level of CEQA review for the Feasibility Study (i.e., Program EIR, Project-level EIR, or Focused EIR). Based on the direction provided by the City, the Consultant will prepare a work plan for the preparation of the environmental review document identified by the City as being appropriate for the Feasibility Plan. 5 Professional Services Rev. January 11, 2010 \\CC-TERRA\jarreo]\PURCHDOC\sAP Bids and Proposa]s\RFP\RFP136602 Energy-Compost Feasibility Study\Conlract CII136602 ALTERNA TlVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cl1136602 TASK 8: Analysis of Energy Generation from Methane Four (4) sub-options for Alternative 1 will be evaluated for a new dry anaerobic facility at the landfill site. These options are in the following matrix: " Anaerobic Yard Sub-option Digestion System Trimmings Food Scraps Biosolids Dry X X X 1 a) (separate cell) Wet ------ Dry X X -- I b) Wet ----X Dry X X -- I c) X Wet ----(wastewater treatment plant site) X X -- I d) Dry ------ Wet The Consultant will prepare a request-for-information (RFD document for selected technology companies, requesting cost and performance data for each of the sub-options identified above. The Consultant understands that cost and performance data for the wet anaerobic digestion or biosolids will be provided by another firm selected by the City for the facility planning process associated with the wastewater treatment facility (i.e., the Long Range Facilities Plan). The RFI will include an introduction, discussion of general conditions, schedule, submission of information requirements, and qualification information. The RFI approach will enable the Consultant to solicit project-specific information and will enable the responding companies to incorporate their current thinking regarding both technology and business postures in their responses. The Consultant's database will also be used to compare the cost and performance data received from the technology companies through the RFI process for reasonableness. Adjustments will be made to cost and performance data input to the economic model, as deemed necessary. Based on the response to the RFI and the Consultant's experience and judgment, the quantity of biogas generated in each of the four (4) sub-options will be estimated. The quantity oflandfill ~ gas available from the Palo Alto landfill will be considered in a separate sensitivity analysis and a recommendation made as to whether landfill gas should be incorporated into the sub-options. 6 Professional Services Rev. January 11,2010 \\CC-TERRA\jarreol\PURCHDOC\SAP Bids and Proposals\RFP\RFP136602 Energy-Compost Feasibility Study\Conlract CII136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: C11136602 The methane-rich gas produced from the dry anaerobic digestion process can be used in a variety of electrical generation equipment including: internal combustion engines, gas turbines, gas turbines in a combined cycle configuration, or fuel cells. The methane-rich gas can also be upgraded for production of compressed natural gas or pipeline quality natural gas. A common methane energy recovery system will be adopted by the Consultant for the analysis of the four (4) sub-options. This selection will be made based on the Consultant's experience and the responses to the RFI received from technology companies. The Consultant will also investigate grant and funding opportunities that could result in either a lower overall amount of borrowing or a lower cost of capital. These include, among others, Clean Renewable Energy Bonds (CREBS), Qualified Energy Conservation Bonds (QECBs), Tax Credit Bonds, United States Department of Energy (USDOE) grants, and loan guarantees. Additional funding opportunities may be available through various State-administered programs. In addition, the Consultant will analyze the advantages and disadvantages of public and private models for project delivery, considering ownership, risk sharing for performance and cost, financing options and opportunities for grants and low interest loans available on a State and Federal basis for different methods ofproject delivery. These methods include both public and private models; design-build (DB); design-build-operate (DBO) and design-build-own-operate- transfer (DBOOT). A preliminary site engineering analysis will be conducted for the landfill site including consideration of access, space requirements, rough grading requirements, foundation considerations, and interconnection of utilities. The City will provide the Consultant with a quantity estimate of cubic yards of in-place refuse that will need to be relocated from the site. The City will also provide the Consultant copies of previous geotechnical investigations performed on and adjacent to the landfill site. A conceptual site layout drawing will be prepared indicating the arrangement and location of the facility on the site. The drawing will be compatible with the City's GIS system. If facility information is available in sufficient detail to depict plan and side views, additional drawings will be prepared depicting a three dimensional yiew of the facility. TASK 9: Project Management The Consultant will meet with the City monthly to review progress and establish priorities for work to be conducted the following month. It is anticipated that these meetings will be conducted both in person, as needed, and by teleconference. 7 Professional Services Rev. January 11,2010 \\CC-TERRA\jarreoI\PURCHDOC\sAP Bids and Proposa\s\RFP\RFP136602 Energy-Compost Feasibility Study\Con1ract CI 1 136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cll136602 EXHIBIT "B" SCHEDULE OF PERFORMANCE CONSULTANT shall perform the Services so as to complete each milestone within the specified below. The time to complete each milestone may be increased or decreased by mutual written agreement of the project managers for CONSULTANT and CITY so long as all work is completed within the term of the Agreement. CONSULT ANT shall provide a detailed schedule of work consistent with the schedule below within 2 weeks of receipt of the notice to proceed. Milestones 1. Community Scoping meeting (City to lead) 2. Consultant Draft of Preliminary FinanciaVGreenhouse Gas Analysis 3. Revised Draft Preliminary FinanciaVGreenhouse Gas Analysis 4. Community meetings on Draft Preliminary FinanciaVGreenhouse Gas Analysis 5. Fimil Preliminary FinanciaVGreenhouse Gas Analysis 6. Consultant Draft of Feasibility Study and California Environmental Quality Act Initial Study (California Environmental Quality Act Checklist). 7. Revised Draft Feasibility Study and California Environmental Quality Act Checklist 8. Community Meetings 9. Final Feasibility Study and Draft Workplan for Completion of California Environmental Quality Act documentation. 10. Final Workplan for Completion of California Environmental Quality Act documentation I Completion fromNTP September 15, 2010 December 3, 2010 January 24,2011 February 2011 March 15,2011 June 15,2011 July 30,2011 August 2011 September 30, 2011 October 30, 2011 Professional Services Rev. January II, 2010 \\CC-TERRA \jarreol\PURCHDOC\sAP Bids and Proposals\RFP\RFP136602 Fnergy-Compost Feasibility Study\Contract CI I 136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cl1136602 EXHIBIT "C" COMPENSATION The CITY agrees to compensate the CONSULT ANT for professional services performed in accordance with the terms and conditions of this Agreement, and as set forth in the budget schedule below. Compensation shall be calculated based on the hourly rate schedule attached as exhibit C-l up to the not to exceed budget amount for each task set forth below. The compensation to be paid to CONSULTANT under this Agreement for all services described in Exhibit "A" ("Basic Services") and reimbursable expenses shall not exceed $179,758.00. CONSULTANT agrees to complete all Basic Services, including reimbursable expenses, within this amount. In the event CITY authorizes any Additional Services, the maximum compensation shall not exceed $197,758.00. Any work performed or expenses incurred for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to the CITY. CONSULT ANT shall perform the tasks and categories of work as outlined and budgeted below. The CITY's manager may approve in writing the transfer of bud get amounts between any of the tasks or categories listed below provided the total compensation for Basic Services, including reimbursable expenses, does not exceed $179,758.00 and the total compensation for Additional Services does not exceed $18,000.00. BUDGET SCHEDULE NOT TO EXCEED AMOUNT Task 1 $3,460 (Development of Detailed Workplan) Task 2 $5,640 (Community Scoping for Feasibility Study and for Environmental Review) Task 3 $34,367 (preparation of Draft Preliminary Financial and Greenhouse Gas Analysis) Task 4 $18,456 (Preparation of Final Preliminary Financial and Greenhouse Gas Analysis) Task 5 $41,242 (preparation of Draft Feasibility Study and California Environmental Quality Act Checklist) Task 6 $16,996 (preparation of Final Feasibility Study, California Environmental Quality Act Checklist, and Workplan for Completion of California Environmental Quality Act Analysis) Task 7 $5,025 (preparation ofWorkplan for Complete California Environmental Quality Act Analysis) 1 Professional Services Rev. January 11,2010 \\CC-TERRA\jarreol\PURCHDOC\SAP Bids and Proposals\RFP\RFP136602 Fnergy-Compost Feasibility Study\Contract CIl136602 ALTERNATIVE RESOURCES. doc CITY OF PALO ALTO CONTRACT NO.: C11136602 Task 8 $38,472 (Analysis of Energy Generation from Methane) Task 9 $8,200 (project Management) Sub-total Basic Services $171,858 Reimbursable Expenses $7,900 Total Basic Services and Reimbursable expenses $179,758 Additional Services (Not to Exceed) $18,000 Maximum Total Compensation $197,758 REIMBURSABLE EXPENSES The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are included within the scope of payment for services and are not reimbursable expenses. CITY shall reimburse CONSULTANT for the following reimbursable expenses at cost. Expenses for which CONSULT ANT shall be reimbursed are: A. Travel outside the San Francisco Bay area, including transportation and meals, will be reimbursed· at reasonable, actual cost subject to the City of Palo Alto's policy for reimbursement of travel and meal expenses for City of Palo Alto employees. B. Long distance telephone cellular phone, facsimile transmission and postage charges are reimbursable at actual cost. All requests for payment of expenses shall be accompanied by appropriate backup information. Any expense anticipated to be more than $2,500.00 shall be approved in advance by the CITY's project manager. ADDITIONAL SERVICES The CONSULT ANT shall provide additional services only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY's project manager's request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT's proposed maximum corppensation, including reimbursable expense, for such services based on the rates set forth in Exhibit C-l. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by 2 Professional Services Rev. January 11,2010 \\CC-TERRA\jarreol\PURCHDOC\SAP Bids and Proposals\RFP\RFP136602 Fnergy-Compost Feasibility Study\Contract Cll136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cll136602 the CITY's manager and CONSULTANT prior to commencement of the services. Payment for additional services is subject to all requirements and restrictions in this Agreement Work required because the following conditions are not satisfied or are exceeded shall be considered as additional services: • Meetings, testing or design services not covered in Basic Services \ 3 Professional Services Rev. January 11,2010 \\CC-TERRA\jarreol\PURCHDOc\sAP Bids and Proposals\RFP\RFP136602 Energy-Compost Feasibility Study\Contract C11136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cll136602 EXHIBIT "C-l" HOURLY RATE SCHEDULE POSITION ALTERNATNE RESOURCES, INC. Principal/Project Manager Energy Consultant Financial Analyst Conversion Technology Specialist Anaerobic Digestion Specialist Air Quality Specialist Word Processing DOUGLASENVmONMENTAL Douglas Brown Susan Alves Phil Bernard Lois Montes Word Processing/Graphics ASCENT ENYmONMENTAL Honey Walters Austin Kerr Heather Phillips ASCENT ENVmONMENTAL JerryGunn Scott Supernaugh 1 HOURLY RATE $205 $175 $170 $144 $132 $125 $45 $160 $115 $95 $80 $75 $150 $115 $115 $150 $150 Professional Services Rev. January 11,2010 \\CC-TERRA \jarreol\PURCHDOasAP Bids and Proposals\RFP\RFP136602 Fnergy-Compost Feasibility Study\Conlract Cll136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cl1136602 EXHIBIT "D" INSURANCE REQUIREMENTS CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT OBTAIN ANDMAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES WITHAM BEST'S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTIIORIZED TO TRANSACT INSURANCE BUSINESS IN TIlE STATE OF CALIFORNIA. . AWARD IS CONTINGENT ON COMPLIANCE WITH CITY'S INSURANCE REQUIREMENTS AS SPECIFIED BELOW' , , MINIMUM LIMITS REQUIRED TYPE OF COVERAGE REQUIREMENT EACH YES YES YES YES YES YES OCCURRENCE AGGREGATE WORKER'S COMPENSATION STATUTORY EMPLOYER'S LIABILITY STATUTORY BODILY INJURY $1,000,000 $1,000,000 GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE $1,000,000 $1,000,000 PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL BODILY INJURY & PROPERTY DAMAGE $1,000,000 $1,000,000 LIABILITY COMBINED. BODILY INJURY $1,000,000 $1,000,000 -EACH PERSON $1,000,000 $1,000,000 -EACH OCCURRENCE $1,000,000 $1,000,000 AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON-OWNED PROPERTY DAMAGE $1,000,000 $1,000,000 BODILY INJURY AND PROPERTY $1,000,000 $1,000,000 DAMAGE COMBINED PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS' COMPENSATION, EMPLOYER'S LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES. I. INSURANCE COVERAGE MUST INCLUDE: A. A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR'S AGREEMENT TO INDEMNIFY CITY. C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY'S PRIOR APPROVAL. II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSUREDS" A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. B. CROSS LIABILITY 1 Professional Services Rev. January 11, 2010 \\CC-TERRA\jarreo!\PURCHOOc\SAP Bids and Proposals\RFP\RFP136602 Energy-Compost Feasibility Study\Contract C 11136602 ALTERNATIVE RESOURCES.doc CITY OF PALO ALTO CONTRACT NO.: Cl1136602 THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS POLICY. C. NOTICE OF CANCELLATION 1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303 2 Professional Services Rev. January 11,2010 \\CC-TERRA\jarreol\PURCHDOC\SAP Bids and ProposaIs\RFP\RFP136602 Fnergy-Compost Feasibility Study\Contract Cll136602 ALTERNATIVE RESOURCES. doc TO: FROM: DATE: HONORABLE CITY COUNCIL CITY MANAGER AUGUST 2, 2010 DEPARTMENT: UTILITIES AND PUBLIC WORKS CMR: 323:10 REPORT TYPE: CONSENT SUBJECT: , Utilities Advisory Commission Recommendation that Council Approve the Use of Up to $75,000 in Calaveras Reserve Funds to Partially Fund a $2~0,000 Energy/Compost Feasibility Study and Environmental Impact Initial Study EXECUTIVE SUMMARY On April 5, 2010, Council directed staff to conduct a feasibility study of an anaerobic digester that would use yard waste, food waste, and possibly sewage sludge to produce biomethane. The biomethane could be used either directly as a substitute for natural gas or burned in a generator to produce electricity. Staff is recommending under a separate agenda item approval of a contract to prepare this feasibility study. This report and recommendation would provide a portion of the funding for the feasibility study. The feasibility study is expected to cost about $250,000, of which 25% will from the Electric Fund. Staff and the Utilities Advisory Commission recommend that the Electric Fund's share of the cost of this study be funded from the Electric Fund account known as the Calaveras Reserve. REQUEST Staff and the Utilities Advisory Commission (UAC) recommend that the Council approve the funding of 25 percent of the cost of an Energy/Compost Feasibility Study and Environmental Impact Initial Study, up to a total of $75,000, from the Calaveras Reserve. BACKGROUND The City of Palo Alto currently handles organic residuals in the following ways: 1. Yard trimmings are composted at the Palo Alto landfill site in uncovered long, thin rows, or windrows; 2. Residential food scraps are disposed of with the garbage and landfilled in South San Jose; 3. Commercial food scraps are increasingly being source separated and, composted near Gilroy, CA, with the remainder being landfilled in South San Jose; 4. Wastewater Biosolids are dewatered and incinerated at the Regional Water Quality Control Plant (RWQCP) inPalo Alto. 323:10 Page 1 4 Due to the anticipated closure of the Palo Alto landfill and its associated compost facility, Palo Alto has been exploring its options. City Council appointed a Blue Ribbon Compost Task Force (Task Force) made up of community members to make recommendations for organics management. The Task Force recommended dry anaerobic digestion at or near the RWQCP. On April 5,2010 Council directed staff to: 1. Hire a consultant to evaluate dry anaerobic digestion; 2. Prepare an environmental impact review focused on 8 to 9 acres of Byxbee Park; 3. Continue not accepting commercial refuse at the Palo Alto Landfill; . 4. Study energy conversion-technologies including anaerobic digestion at the R WQCP as part of its Facility Planning process; and 5. Pursue partnering opportunities for organics processing within 20 miles of Palo Alto. On May 24, 2010, Council received an information report (CMR: 251 :10 -attached to this report as Attachment B) that described the plan to engage a consultant to complete the feasibility study as directed by Council. The report states that the funding for the study will come from the relevant Enterprise Funds. On January 12, 2009, Council directed staff to work with the UAC to review possible projects that would benefit electric ratepayers for consideration of funding from the calculated "excess" Calaveras Reserve Fund (CMR: 110:09). On June 15,2009, as recommended by staff, the UAC, and the Finance Committee, Council approved changes to the Calaveras Reserve guidelines (CMR: 275:09), including a provision that, to the extent that there are funds available in excess oflong~term stranded cost needs, staff will work with the UAC to identify and recommend projects for Council consideration and approval. Such projects shall be to the benefit of electric ratepayers. DISCUSSION The Public Works Department will manage the consultant contract and Utilities staff will work closely with Public Works staff to complete the feasibility study. The consultant will prepare a feasibility study for a dry anaerobic energy/compost facility, which would recover energy from methane derived from dry anaerobic digestion of food scraps, yard trimmings, and, possibly wastewater biosolids. The chief residual from the processes would be compost. The feasibility study will include an economic, greenhouse gas, and environmental impact analysis. Pursuant to the California Environmental Quality Act (CEQA), an Initial Study (CEQA Checklist) will also be prepared. The costs, impacts, and benefits will be compared to a "no action" alternative and to the alternative of a similar processing facility located outside of Palo Alto, but within 20 miles. Three basic alternatives and four sub-alternatives will be evaluated in the study: 1. A new dry anaerobic digestion facility adjacent to the RWQCP. There are two potential sites for this -the 8 to 9 acre landfill site just southeast of the RWQCP, and the RWQCP site itself. Therefore, there will be sub-alternatives to Alternative 1 as follows: CMR: a. A new dry anaerobic digestion facility for yard waste, food waste and biosolids on the landfill site. :10 Page b. Dry anaerobic digestion for yard, food and wet anaerobic digestion for biosolids on the landfill site. c. Dry anaerobic digestion for yard and food on the landfill site and wet anaerobic digestion for biosolids on the R WQCP si,te. d. Dry anaerobic digestion for yard and food waste and no methane production from the biosolids. 2. A similar regional facility adjacent to the San Jose Wastewater Treatment Plant 3. The current facilities and plans which Palo Alto has arranged for its organics residuals following closure of the Palo Alto Landfill. The analysis of all four sub-options of Alternative 1 will assume that a common methane energy recovery facility will be located on the landfill site. The analysis of all main options and sub- options will include: 1) a financial analysis; 2) a life-cycle analysis of greenhouse gas emissions; and 3) an analysis of environmental and other impacts. Utilities will ensure that the feasibility study will include a proper evaluation of the value of the biomethane and/or electricity produced from an anaerobic digester facility. This evaluation will take into account the value of the: 1) energy produced; 2) green attributes of the energy produced; 3) avoided electric transmission losses and gas transportation and electric transmission costs; and 4) local capacity. COMMISSION REVIEW AND RECOMMENDATIONS The UAC considered the staff recommendation to fund the Electric Fund's share of the Energy/Compost Feasibility Study and Environmental Impact Initial Study from the Calaveras Reserve at its meeting on June 2, 2010. The UAC discussed whether there was any benefit to Utilities from the feasibility study as the project was initiated to address an issue in the Refuse Fund. Utilities was determined to have an interest in the study to ensure that the output from the. digester is valued appropriately and that Utilities considerations are incorporated into the study. Some commissioners agreed that the request for funding from the Calaveras Reserve was consistent with the intentions for projects that would be funded from that reserve since the digester would be a locally-sited generator of renewable energy. One commissioner felt that the Calaveras Reserve was for large projects, not for such small sums for studies, and suggested that the requested funds should come from the Electric general operating budget. The UAC voted to recommend that the Council fund the Electric Fund's 25 percent share of the Energy/Compost Feasibility Study and Environmental Impact Initial Study, up to $75,000, from the Calaveras Reserve by a vote of 4 to 1 with Chair Melton voting no. The excerpted notes from the UAC meeting are provided as Attachment C. RESOURCE IMPACT The feasibility study is expected to cost $250,000. The Electric Fund's expected expense is 25 percent of the total $250,000 cost of the study, or $62,500. To allow for contingencies and potential additional related studies, up to $75,000 is requested for funding from the Electric Fund's Calaveras Reserve. If funding of up to $75,000 for this feasibility study from the CMR: 323:10 Page 3 4 !.':, Calaveras Reserve is approved, sufficient funds would remain in the Calaveras Reserve to cover stranded costs of the electric portfolio. POLICY IMPLICATIONS The conduct of the Energy/Compost Feasibility Study and Environmental Impact Initial Study is aligned with Council policy and creates no new Councilor City policy. ENVIRONMENTAL REVIEW As part of this project, the City is preparing an Environmental Impact Report Initial Study. ATTACHMENTS A. CMR: 251: 10 -Status Update on Procurement for Dry Anaerobic Digestion Feasibility Study and Environmental Review B. Council Direction from the AprilS, 2010 meeting C. Excerpted Draft Minutes from the June 2, 2010 UAC meeting PREPARED BY: Utilities Assistant Director, Resource Management . IDLBOBEL Environmental Compliance Manager, RWQCP DEPARTMENT APPROVAL: GLENN ROBERTS CITY MANAGER APPROVAL: Di O'OfPUblitD'm e:;OAMES KEENE j .;...0---City Manager CMR: 323:10 Page 4 of4 ATTACHMENT A TO: HONORABLE CITY COUNCIL (!)" FROM: CITY MANAGER DEPARTMENT: PUBUCWORKS DATE: MAY 24, 2010 CMR:251:10 REPORT TYPE: INFORMATION SUBJECT: Status Update on Procurement for Dry Anaerobic Digestion Feasibility Study and Environmental Review This is an infonnational report and no Council action is required. The purpose of this report is to notify Council on the progress being made iowards a detailed feasibility study and environmental asseSsment for a dry anaerobic digestion facility in Palo Alto. Staff estimates that a final Environmental Impact Report would be available for certification by Council no earlier than April 2012. Staff expects to have a draft interim fmancial analysis report in January 2011. BACKGROUND On AprilS, 2010, Council directed staff to initiate a feasibility study for dry anaerobic digestion in Palo Alto. The final approved motion consisted of the following points: 1. Direct staff"to initiate the process to hire a consultant to conduct a feasibility study and prepare an appropriate~level environmental impact report for a dry anaerobic digestion facility on 8 to 9 acres of Byxbee Park adjacent to the Regional Water Quality Control Plant; 2. Continue the moratorium on commercial waste acceptance atthe Palo Alto Landfill; 3. Provide an interim report to Council regarding the economics of the feasibility study options; 4." Examine the feasibility of energy conversion technologies (including AD technologies) during the upcoming Regional Water Quality Control Plant (RWQCP) Master Planning Process; and . 5. Investigate and pursue localpartnering opportunities with SMaRT® partners and/or local organic waste processing· companies who are developing private AD or energy conversion facilitieS' within a 20-mile radius of Palo Alto. A history of events leading up to the Council action on April 5, 201 0 is detailed in CMR: 165: 1 O. DISCUSSION , Staff has initiated the process to procure consultant services for· a detailed feasibility study of a dry anaerobic energy facility in Palo Alto with an environmental assessment of impacts. The study will examine a facility that would recover energy from methane derived from dry anaerobic digestion of feedstocks consisting of food scraps, yard trimmings, and, possibly CMR:251:10 Page 1 of4 wastewater biosolids. Besides energy, the primary end product from the processes would be a marketable soil amendment material similar to finished compost. An Initial Study Checklist pursuant to the California Environmental Quality Act (CEQA) would be prepared as early as possible during the study. Further CEQA work may be performed as appropriate following the Initial Study Checklist. The location of the proposed Palo Alto facility . would be immediately southeast of the Palo Alto Regional Water Quality Control Plant on an 8 to 9 acre site (with 6 to 7 acres overlying the current Palo Alto Landfill). Several project alternatives relating to the different possible feedstocks will be examined during the study. The costs, impacts, and benefits will be compared to a "no action" alternative and to the alternative of a similar processing facility located outside of Palo Alto, but within 20 miles in . order to minimize the air quality impacts and carbon footprint of trucking. A proposed conceptual timeline for the overall study is presented in Attachment A. The working draft request for proposals (RFP) is included as Attachment B. Staff expects the RFP to be issued in June 11,2010. Per the timeline, Council will be asked to award a contract for the study by August 2,2010 before Council takes recess in August. Community Input Meeting The first major task that will be performed by the Consultant is the facilitation of at least one community input meeting for the study. This public input session will collect ideas and concerns for the project to help guide the rest of the study. This will be especially helpful for identifYing and costing out suggested environmental mitigation proposals. One such mitigation suggestion . already received from community input is that the facility should include a green roof system that integrates with the closed landfill cap. A follow-up suggestion from community· input indicated that the Byxbee Park recreational trail system needs to be considered in the design. Preliminary Economic Analysis The second major task will be the preparation of a preliminary economic analysis of the proposed facility funding and operating scenarios. The economic analysis will examine the project with and without a rent payment for use of the City-owned land. It will also include the economics of greenhouse gas (OHO) carbon credits and renewable energy credits. The data will be presented in two formats. The first would be in terms of the total overall costs and benefits to the City of Palo Alto and the partners of the Regional Water Quality Control Plant. The second would be in terms of costs and benefits to the individual enterprise funds and general fund (if applicable). Staff expects to present a draft of the preliminary economic report to Council in late January 2011. The final preliminary economic analysis is expected to be presented by March 2011 for further Council action and direction on the overall proj ect. Completion of this task will address item 3 ofthe Council action on April 5, 2010. This report is provided to keep Council informed of the process that staff has initiated to procure consultant services. Based on the conceptual schedule, staff expects to return to Council prior to the August recess to award a contract for the project. Proposals will be evaluated by an inter- departmental staff committee using standard Purchasing Division criteria as modified to fit this project. The working draft proposal review criteria worksheet is enclosed as Attachment C. CMR:251:10 Page 2 of4 RESOURCE IMPACT Depending on the outcome of Council action at the fmal preliminary report stage (March 2011), staff could develop a fonnal capital improvement project (CIP) for the proposed facility's preliminary design and complete EIR. Additional funding for the consultaht beyond the initial contract award will be required to continl.le the project at that point. The preliminary cost estimate would also provide a solid basis to pursue any and all potential grant and stimulus funding sources for the project at that time. Depending upon the specific outcome of the preliminary studies and subsequent Council direction, costs for conceptual design of the project and a complete environmental impact report could range from an additional $200,000 to $500,000. . Funding for this study is expected to come from the FY2010-11 operating budget of the relevant and· respective Enterprise Funds. The revised initial study cost estimate is expected to be for $200,000 to.$250,000 depending upon the proposals to be received. POLICY IMPLICATIONS The ''no action" scenario and the use of a similar anaerobic digestion facility outside of Palo Alto represent the current organic waste management policy established in the Zero Waste Operations Plan. That 2007 policy document recommends using regional facilities to handle organics processing, however it does state in chapter 1.4 that emerging technologies such as anaerobic digestion could assist the City with achieving higher rates of waste diversi.on. The proposed Palo Alto dry anaerobic digestion facility scenario is consistent with established Council policies on reducing greenhouse gas emissions, but is not consistent with the Comprehensive Plan or the 2008 Baylands Master Plan. ENVIRONMENTAL REVIEW As requested by Council, staff is also proceeding with an environmental assessment. However, it is important to note that under Section 15262 of the California Environmental Quality Act (CEQA) Guidelines a feasibility study that does not commit the City to a particular project or course of action does not require a fonnal EIR or negative declaration, but instead requires a more general consideration of environmental factors. Staff expects that a decision to pursue a program-level or project-level environmental impact report will be made by COWlcil in September 2011 when the fmal feasibility study report is presented to Council for acceptance and when the srope of the facility is better defmed. Prior to that decision, much of t4e preliminary technical environmental analysis will have been completed including determination and quantification of impacts relating to greenhouse gases, traffic, noise, air emissions, lighting, aesthetics, habitat and biological resources, cultural resources, geology and soils hazards, hazardous materials, hydrology and water quality, land use and planning, mineral resources, public services, recreation, and utilities. Staff anticipates that an infonnational report to Council will be given in July 2011 to present the draft CEQA Initial Study Checklist along with the technical analysis to support the checklist. ATTACHMENTS Attachment A: Proposed Energy/Compost Study Timeline CMR.:25 1.1 0 . Page 3 of4 \ Attachment B: Draft Request for Proposal (Energy/Compost Feasibility'Study and Environmental Impact Initial Study -Scope of Services) Attachment C: Draft Proposal Review Criteria. Worksheet PREP ARED BY: DEP ARTMENT.HEAD: CITY MANAGER APPROVAL: CMR.:251.10 ~~ MA tTHEW A. RASCHKE Senior Engineer '/L 1 Rj-t----- GLENN S. ROBERTS Director of Public Works AI ENE Page 4 of4 5/24/10 6/11110 8f1JIO 9/8/10 1213/10 1124/11 2111 3/15111 6115111 7/30111 . 8/11 9130111 4/15/12 ENERGY/COMPOST STUDY CONCEPTUAL TIMELINE FEASmlLITY STUDY Study TimeJine Info Cl\fR RFPIssued J _,.,...e. -L_ - ---. I Percent of I J Contract Funds I I Expended I ... J ~-_ ..... _ ..... __ Council Approval of Consultant Contract I I ENVIRONMENTAL ASSESSMENT Community Issues Input Meeting for Feasibility ...... .,. ..... 9/8/10 Community Issues Input Meeting for Environmental Analysis I Assessment I Consultant Draft of Prelim. Financial/GHO Analysis I Info C.MR forwarding Draft Prelim. Financial! GBG Analysis . Community meetings on Draft Prelim. FinanciaV GHO Analysis I I I I I I Final Prefun. FinanciaJ/GHG Analysis ................. 3/15/11 {point for possible farther Council action} 70% I Consultant Draft ofFeasihility Study ·····.·· .. ···········1···· 6/15/11 • Info CMR forwarding Draft Fe;lSibDity Study ....... ~ ...... 7130/11 -Co~unity Meeting~ ·········~···-··········· .. ·············i···· 8111 Final Feasibility Study to Council ........................... 9130111 100% I Final Feasibility Study to Council ......................... 4115/12 . Consultant Technical Environmental Analysis CEQA Initial Study/Checklist, including Greenhouse gasses, traffic, emissions, and other impacts Preliminary Consultant Teehllical Work on Environmental. AsSes5ment Completed Consultant Draft of CEQA Initial Study (CEQA Checklist) InfoCMR forwarding Draft CEQA Checklist Community Meetings Recommendation to· Council on Timeline for Completing CEQAReview and Proeess Final CEQA Review Documentation. to Councn for Certification ~ KEYMILESTONEDATES Additional Funding Needed ~ > n i > ATIACHMENTB City ofPaio Alto Energy/Compost Feasibility Study and Environmental Impact Initial Study Scope of Services GENERAL DESCRIPTION OF WORK The project is to prepare a Feasibility Study for a Dry Anaerobic Energy/Compost Facility in the City of Palo Alto, California. The facility would recover energy from methane derived from dry anaerobic digestion of food scraps, yard trimmings, and, possibly wastewater biosolids. The chief residual from the processes would be compost. The Feasibility Study would include an economic, greenhouse gas, and environmental impact analysis. An Initial Study (CEQA Checklist) pursuant to the California Environmental Quality Act would also be prepared. (Further California Environmental Quality Act work may be performed through a Contract Amendment.) Several sub- options will be studied. The costs, impacts, and benefits will be compared to a "no action" alternative and to the alternative of a similar processing facility located outside of . Palo Alto, but within 20 miles. The location of the Palo Alto facility would be immediately southeast of the P~o Alto Regional Watet Quality Control Plant on an 8-9 acre site (with 6 to 7 acres overlying the existing Palo Alto Landfill). BACKGROUND The City of Palo Alto currently handles organic waste in the following ways: 1. Yard trimmings are composted at the Palo Alto landfill site in uncovered windrows; 2. Residential food scraps are disposed of with the garbage, transferred at the Sunnyvale SMaRT® Station and ultimately landfilled in South San Jose; 3. Commercial food scraps' are increasingly being source separated and composted near Gilroy, CA, with the remainder being landfilled in South San Jose; 4. Wastewater Biosolids are dewatered and incInerated at the Regional Water Quality Control Plant in Palo Alto. Due to the anticipated closure of the Palo Alto landfill and its associated Compost Facility, Palo Alto has been exploring its options. City Council appointed a Blue Ribbon Compost Task Force (Task Force) made up of community members to make recommendations for organics management. The Task Force recommended dry anaerobic digestion at or near the Regional Water Quality Control Plantl . On AprilS, 201 0 council directed2 staff to: 1. Hire a consultant to evaluate dry anaerobic digestion 2. Prepare an enVironmental impact review focused on 8-9 acres of Byxbee Park. 1 See Palo Alto website for Task Force Report and Supporting documents. :I See Palo alto website for full text of Council Directive 3. Continue not accepting commercial refuse at the Palo Alto Landfill. 4. Study energy conversion-technologies including anaerobic djgestion at Palo Alto's Wastewater Treatment Plant as part of its Facility Planning process. 5. Pursue partnering opportunities for organics processing within 20 miles of Palo Alto. The 8-9 acre site described above is currently on dedicated Parkland. Six to seven acres of the proposed site ate part of an active class 3 municipal solid waste landfill that pas not yet received a fmal closure cap. The entire site would have to be undedicated by a vote of the residents before an Energy/Compost Facility could be constructed. A number of other approvals and permits would also be needed. However, this Scope of Services does riot include working on these approval processes. Palo Alto already operates its own gas and electric utilities, which are potential users of gas or energy generated by an anaerobic digestion facility. The electric utility has been directed to procure 33% of its electric supply from renewable sources by 2015. The gas utility is investigating opportunities to supply some 'load using biogas. The City also fuels its vehicle fleet with compressed natural gas, which is another potential use for biogas generated by the facility PROJECT APPROACH Consultant will evaluate and compare three basic alternatives: Alternative 1: A new dry anaerobic digestion facility adjacent to the Palo Alto Wastewater Treatment Plant. Alternative 2: Sending organic waste directly to a s~mi1ar Regional Facility adjacent to the San Jose Wastewater Treatment Plant Alternative 3: The current facilities and plans which Palo Alto has arranged for its organics residuals following closure of the Palo Alto Landfill (Le. transfer to regional facilities via the SMaRT® Station). Palo Alto staff will provide much of the data for the an8lysis of Alternatives 2 and 3. The majority of the Consultants work will be on Alternative 1. There are two sites involved in Alternative 1, the 8-9 acre Landfill site just Southeast of the Wastewater Treatment Plant, and the Wastewater Treatment Plant itself. Therefore, there will be sub- alternatives to Alternative 1 as follows: Sub-options to Alternatiye 1: la) A new dry anaerobic digestion for yard, food and biosolids on the landfill site (biosolids in separate cells). 1 b) Dry anaerobic digestion for ,yard, food and wet anaerobic digestion for biosolids on the landfill site. lc) Dry anaerobic digestion for yard and food on the landfill site and wet anaerobic digestion for biosolids on the Wastewater Plant site. Id) Dry anaerobic digestion for yard and food waste and no methane production from the biosolids. The analysis of all four sUb-options of Alternative 1 will assume that a common methane energy recovery facility will be located on the LandfIll site. It will also include a preliminary site engineering analysis relating to the existing landfIlL The analysis of all main options and sub-options will include: 1. A financial analysis; 2. A life-cycle analysis of greenhouse gas emissions; and 3. An analysis of environmental and other impacts. The analysis of the wet anaerobic digestion process in Alternative 2 and Alternative 3 will be performed through a separate, . parallel study: the Wastewater Long Range Planning process. The' consultant selected that study .will provide the evaluation of wet anaerobic digestion to the Consultant selected for the Energy/Compost Feasibility Study. Following submittal of Preliminary Analysis (Task 4), City will consider whether other alternatives should be considered as welL For example, it may become apparent that an alternative of a somewhat larger or smaller Landfill site would be a more cost effective option, and still be within the intent of the Council Directive to staff from AprilS, 2010. CONSULTANT SERVICES Task 1 - Task2 - Task 3 - Task4 - Task 5 - Development of Detailed Workplan. Consultant will prepare a draft detailed Work Plan and meet with City staff and agree on communication techniques as between the City and Consultant. Community Scoping for Feasibility Study and for Environmental Review. City will arrange for and facilitate a community meeting to solicit input on the Feasibility Study and the Environmental Review. Following this meeting and consulmtion with the City, Consultant will fina1i~ its Work Plan. Preparation of Draft Preliminary Financial and Greenhouse Gas Analysis. Consultant shall collect the data necessary to evaluate the options and sub- options outlined under "Approach" above and prepare a draft preliminary evaluation 1n a data management system format. The key parameters will be dollars, greenhouse gas emissions, and environmental impacts. Preparation of Final Preliminary Financial and Greenhouse Gas Analysis , Following review by City, the Preliminary Analysis will be fmalized. Included in this deliverable should be a working Excel model that can be used by. City staff to update inputs to the analysis and see the effect it has on the project's feasibility. Preparation of Draft Feasibility Study and California Environmental . Quality Act Checklist Consultant shall assist the City in presenting the Preliminary Analysis to the Community and to City CounciL Feedback from that process shall be Task6 - Task? - Task3 - used to prepare a Draft Feasibility Study and California Environmental Quality Act Initial Study (California Environmental Quality Act Checklist). Preparation of Final Feasibility Study, California Environmental Quality Act Ch~cklist, and Workplan for Completion of California Environmental Quality Act Analysis . . Consultant shall assist the City in presenting the Draft Feasibility Study to Council and the Community. Feedback from that process shall be used to finalize the Feasibility Study and California Environmental Quality Act Checklist. . Preparation of Workplan for Complete California Environmel1tal Quality Act Analysis. Following preparation of the California Environmental Quality Act Initial Study (California Environmental Quality Act Checklist), Consultant shall. confer with City. City will advise the Consultant which type of review on the Feasibility Study is to be completed (program EIR, Project-level EIR or focused EIR). Consultant shall then prepare a Workplan for the preparation of that type of Environmental Review. (City may utilize a contract amendment as the vehicle for completing the needed work.) Analysis of Energy Generation from Methane Consultant shall estimate the amount of biogas, percent methane, moisture content and key contaminant levels for the four sub options identified in the "Approach" above. Landfill gas from the Palo Alto landfill shall be considered as an additional source of biogas and recommendations made on whether to include it in the energy recovery analysis. Consultant shall consider methane utilization in internal combustion engines, turbines, fuel cells, compressed natural gas. production, and any other promising technologies. For options requiring heat, cogeneration of heat and electrical energy shall be considered. Consultant shall analyze the capital and operating costs of the four sub options [la) -Id)] in the "Approach" and determine the net present value over the project life. Consultant shall consider the impacts of tax credits, renewable energy credits, rebates, accelerated depreciation and similar features which improve financial feasibility. Grants which may be possible to obtain shall be listed and the likelihood of attaining them analyzed briefly. Recommendations shall be made as to whether the private sector ot government should own andlor operate the energy recovery plant andlor the anaerobic digesters. City Staff will provide the consultant with the coriunodity sale prices (electricity and natural gas) to be used in the analysis. The analysis shall result in overall recommendations with respect to the options [la) -Id)], the type of methane utilization, and the owner/operator . question. The most cost effective alternative shall be identified. Task9 -Project Management Consultant and City shall meet monthly to review progress and agree on priorities for upcoming work. . Consultant shall utilize software graphics which depict 3 dimensions, as well as, plan and side views for showing facilities in its drawings. All drawings will be fully compatible with the City's GIS System. PROJECT TIMELINE September 8, 2010 December 3, ~01O January 24, 2011 February 2011 March 15,2011 June 15,2011 July 30, 2011 August 2011 September 30, 2011 October 30,2011 Community Scoping meeting (City to lead) . Consultant Draft of Preliminary Financial/Greenhouse Gas Analysis' , Revised Draft Preliminary FinanciallGreenhouse Gas Analysis Community meetings on Draft Preliminary Financial/Greenhouse Gas Analysis Final Preliminary Financial/Greenhouse Gas Analysis Consultant Draft of Feasibility Study and' California Environmental Quality Act Initial Study (Califoniia Environmental Quality Act Checklist). Revised Draft Feasibility Study and California Environmental Quality Act Checklist Community Meetings Final Feasibility Study and Draft Workplan for completion of California Environmental Quality Ad documentation. Final Workplan for Completion of California Environmental Quality Act documentation. 1 2 3 4 5 6 7 8 Draft Proposal Review Criteria Worksheet Criteria Propasalhas all reQuired elements. Proposal is well thought out, clear. andprov~es clear path to meet project objectives. Proposers experience, including the experience of staff'to be assigned to the project, with enaaaements of simitar SCOPe and commexity. Cost to thecilv. Proposer has adeQUate financial liability insurance •. Proooser's abilitv to Derform the work within the time sPecified. Proposer's 'Prior record of DeIformance with citY or others. Proposer's compfiance with applicable laws, regulations, policies (including city council pollcies),guidelines and orders governing prior to existing contracts performed by the contractor. . ~ Score = Weight x Rating. Rating shall be frQm a to 5; with 0 = poor rating and 5 = good rating. Rating shall be determined by member of selection committee. Tolalscore Proposal is well thought out, clear. and provides clear path to meet objectives. Consultant A WelaM Rating Score 2 0 3 0 5 0 5 o - 2 0 3 0 3 0 2 0 ' '. "-.' ''c '0;._' 0 Consultant B Weight RatIng Score 2 0 3 0 5 0 5 ();. 2 0 3. 0 3 0 2 a .~.: •........ ." 0' ," , ~. ~ I n !ATTACHMENT B April 5, 2010 City Council Meeting Results Action Minutes Excerpt on Item No. 11: Energy Recovery/Compost Facility The following is an excerpt from the April 5, 2010 Council Meeting Action Minutes concerning an Energy Recovery/Compost Facility in Palo Alto. It shows the motion passed by Council and the approved amendments. This constitutes the April 5, 2:010 COUNCIL DIRECTIVE TO STAFF: MOTION: Council Member Klein moved, seconded by Mayor Burt to: 1) Dir~ct Staff to initiate the process to hire a consultant to evaluate the dry anaerobic digestive system, 2) Prepare an applicable level EIR, focused on the 8-9 acres of Byxbee Park adjacent to the Regional Water Quality Control Plant as a prospective site, 3) Continue not allowing commercial waste acceptance, and 4) Review a policy that the lease revenue to the General Fund (OF), net of any costs to the GF, would first be used to develop Byxbee Park. INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER that within the feasibility study an interim report would return to Council on the cost analysis. INCORPORA TED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to examine the feasibility of energy conversion technologies (including AD technologies) during the upcoming Regional Water Quality Control Plant (RWQCP) Master Planning Process. AMENDMENT Council Member Holman moved, seconded by Council Member Schmid to adopt Staff recommendation Number 3; Investigate and pursue local partnering opportunities with SMaRT® partners and/or local organic waste processing companies who are developing private AD or energy conversion facilities within a 20- mile radius of Palo Alto. AMENDMENT PASSED: 5-4 Burt, Klein, Price, Shepherd, no Council Member Klein withdrew Item Number 4 from his Motion; Review a policy that the lease revenue to the GF, net of any costs to the GF, would first be used to develop Byxbee Park. MOTION PASSED: 5-4 Espinosa, Holman, Schmid, Yeh, no ATTACHMENT C EXCERPTED DRAFT MINUTES OF UTILITIES ADVISORY COMMISSION Meeting of June 2,2010 ITEM 3: ACTION ITEM: Use of Up to $75,000 in Calaveras Reserve Funds for an Energy/Compost Feasibility Study and Environmental Impact Initial Study Assistant Director Jane Ratchye explained that the Council directed that a feasibility study for an anaerobic digester be completed and that the cost was expected to be $250,000. City staff had determined that a fair split of the total cost would be for the Refuse Fund to pay half of the cost and the remaining half split equally between the Electric Fund and the Regional Water Quality Control Plan. Utilities staff is proposing that the Calaveras Reserve be the source of funds for the Electric Fund's share of the cost, up to a total of $75,000. Commissioner Foster indicated that the decision seemed easy and that he supported the recommendation. Chair Melton asked why the Electric Fund was aSSigned any part ofthe cost and why the Gas Fund did not get any cost assignment since one outcome could be that gas would be produced from the digester. Fang stated that the project could have benefits to the Electric Fund since local generation would be evaluated and Utilities would want to make sure it was properly valued, but that the Gas Fund was unlikely to be a beneficiary since biomethane, if it was the project's product instead of electricity, would be used directly rather than cleaned up to pipeline quality. Commissioner Waldfogel stated that if Electric Fund was to be tapped, the Calaveras Reserve would be the appropriate source of funds since it fits with the types of projects that were sought for funding from that reserve -local, renewable generation. PUBLIC COMMENT: Herb Borock expressed his opposition to the proposal. He stated that the proposal assumes that the decision on how to divide the costs between funds, rather than ask for policy direction to set that split. In addition, he said that 25% of the $250,000 study would only mean $62,500 is needed, not the $75,000 requested. Finally, we said that the project is entirely a Refuse Fund project and· that no Utilities funds should be used at all, despite the challenging situation of the Refuse Fund. He concluded that the Calaveras Reserve was being tapped since it is available, but that it is not a good policy. Commissioner Eglash asked Council Member Yeh if it was normal for Council to let staff decide funding sources. Yeh said that he didn't know the rationale of the proposed split of funding. Fong added that the Refuse Fund is the largest source of funds at 50% of the total cost. Yeh said thCilt the City Manager would be involved since it must ultimately go to the Council for a decision. He wanted to make sure that the costs are reflective of the benefits for each fund. Commissioner Waldfogel stated that it has been established that there is a bene'rit to the Electric Fund, but not the Gas Fund so that he supported the recommendation. Chair Melton stated that he thought that the Electric Fund's contribution should not come from the Calaveras Reserve since the money involved is too small and that, instead, it should come from the general Electric Fund operating costs. " ACTION: Commissioner Waldfogel made a motion to recommend that Council approve the funding of 25 percent of the funding, up to $75,000, for an Energy/Compost Feasibility Study and Environmental Impact Initial Study from the Calaveras Reserve. Commissioner Berry seconded the motion. Commissioner Melton made a substitute motion to change the funding source from the Calaveras Reserve to the Electric Supply Rate Stabilization Reserve. The substitute motion died for the lack of a second. The original motion passed by a vote of 4 to 1, with Chair Melton voting no. TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: PUBLIC WORKS DATE: AUGUST 2, 2010 CMR:304:10 REPORT TYPE: CONSENT SUBJECT: Approval of a Contract with Peterson Power Systems in a Total Amount not to Exceed $201,853 for the Overhaul of a Caterpillar Model 3412e Diesel Engine and the Installation of a Required Best Available Control Technology (BACT) Diesel Emissions Retrofit Device RECOMMENDATION Staff recommends that Council approve and authorize the City Manager or his designee to execute a contract with Peterson Power Systems not to exceed $183,503, and $18,350 for additional services for the complete overhaul of a Caterpillar Model 3412E engine and the installation of a diesel particulate filter system (DPF) that will reduce the engine's particulate matter emissions in accordance with more stringent Bay Area Air Quality Management District (BAAQMD) regulations that will become effective on January 1,2013. DISCUSSION The City of Palo Alto's refuse disposal facility is owned and operated by the City of Palo Alto. The facility includes an active municipal solid waste landfill, an active landfill gas collection system, a landfill gas control system, and compo sting operations. A primary piece of equipment used in the composting operations is a 2001 Morbark Model 5600 horizontal wood grinder that is equipped with a Caterpillc;rr Model 3412E diesel engine. The City of Palo Alto took delivery of the grinder on March 15, 2002. The original purchase price was $354,761. The grinder is used to reduce wood material down to 'a compostable debris mixture. The grinder has the capacity and power to process whole trees, stumps, logs, lumber, and green waste. The grinder has been operated under severe service conditions for a total of 8,385 hours. Due to its age and condition, the Caterpillar engille that powers the grinder is in need of overhaul. The overhaul includes the removal, transportation and re-installation of the engine. All internal and external engine components will be machined, repaired or replaced so that the engine is restored to original factory specifications for performance and reliability. In addition, the power take-off unit will be repaired, and the clutches replaced. The Caterpillar 3412E is a very large (860 horsepower) industrial engine, which accounts for the relatively high cost of this overhaul. Repair of ihis equipment is necessary to ensure the continued viability of the compost operation in both short and long term scenarios. Given that the compost function is currently scheduled to CMR:304:1O Page 1 of3 continue until landfill closure, the repairs will be the most cost effective solution as further discussed in the following "Alternatives" section. Should a policy decision be made to continue composting after landfill closure, the cost of these repairs will be even further cost effective. Scope of Work The scope of work consists of three parts. The first part involves t4e engine overhaul and is priced at $91,523. The second part consists of optional repairs in the total amount of $56,202. The nece~sity for those repairs will not be known until the engine is reIlloved and this will not be performed until authorized by the City's Equipment Management. The third part of the scope is the installation of a Best Available Control Technology (BACT) diesel particulate filter (DPF) as required by the Bay Area Air Quality Man~gement District (BAAQMD). The BAAQMD was established in 1955 to regulate sources of stationary air pollution in the nine counties surrounding the San Francisco Bay. BAAQMD regulations require a reduction in the particulate matter (PM) emissions from the Caterpillar Model 3412E diesel engine by January 1,2013. The installation of a DPF system will reduce the PM emissions as required by the more stringent BAAQMD standards. Since this requirement does not go into effect until January 1,2013, this portion of the work will only be authorized if the Council directs the composting operation to continue beyond December 31, 2012. Bid Process A Request for Quotation (RFQ) for engine overhaul service and installation of a diesel emissions retrofit device, also known as diesel particulate filter, was sent to three vendors on May 12,2010. Bids were received from two qualified vendors on June 1, 2010 as listed on the attached bid summary (Attachment B). Only two bids were received. Peterson Power's bid was $183,503 (fot items A, B, and C). Pape Machinery's bid was $175,172. The bid submitted by Pape Machinery did not include item C (cost to install a diesel particulate filter), and thus is not responsive. Alternatives Public Works Operations and Equipment Management discussed the options for the grinder based on current and near-term needs, and concluded that overhauling the grinder's Caterpillar 3412E engine was the least expensive method to ensure continuous operation of the composting operation until the anticipated closure 'in 2012. The alternatives that were investigated were replacing the existing engine with a new engine, pwchasing a used wood grinder, leasing a new grinder, and subcontracting wood grinding services. The cost of a new replacement engine would be $35,326 higher than the cost to rebuild the current engine and the cost of purchasing a used wood grinder would be approximately $250,000. The cost of leasing a new Morbark grinder would be $312,000 over the next two years. The cost of contract grinding services for the same two-year period would be $792,000. If the existing engine is rebuilt, no additional permitting would be required. The prOCess required to permit a new engine, or to purchase or lease another machine and permit it, would generate additional costs for contract grinding services. It could take three to six months to complete this process; during which time a contract grinder would need to be employed at a cost of $30,000 per month. Staff has reviewed all bids submitted and recommends that the bid submitted by Peterson Power Systems be accepted and that Peterson Power Systems be declared the lowest responsible bidder. CMR:304:10 Page 2 of3 ATTACHMENT B CITY OF PALO ALto CONTRACT NO.: Cll136458 GENERAL SERVICES AGREEMENT THIS AGREEMENT made and entered into on the day of July, 2010, by and between the CITY OF PALO ALTO~ • California Charter~d Municipal Corporation ("CITY"), and PETERSON . POWER SYSTEMS, a corpOration in the State of California, with offices located at 2828 Teagarden Street, San Leandro, CA 94577, Telephone Number: 510-895-8400 ("CONTRACTOR"). In consideration of their mutual covenants, the parties hereto agree as follows: 1. SERVICES. CONTRACTOR shall provide or furnish the services ("Services'') descnbed in the Scope of Services, attached as Exhibit A. 2. EXHIBITS. The fonowing exhibits are attached to. and made a part of this Agreement: 181 "A" -Scope of Services 181 "a" -Schedule of Performance [8t "Cn -Compensation 181 "D" -Insurance Requirements B "En -Performance and/or Payment Bond (not required for this project) "P" -Liquidated Damages (Not applicable to 1his project) CONTRACT IS NOT COMPLETE UNLESS ALLEXHlBITSARE AITACOED. 3. TERM. The term of this Agreement shall be from the date of its full execution through December 31, 2012 or the completion of the services in accordance with the Schedule of Performance attached as Exhibit "a", subject to the provisions of Section Q and V of the General Terms and Conditions • . 4. SCHEDULE OF PERFORMANCE. CONTRACTOR shall complete the Services within the term of this Agreement in a reasonably prompt and timely manner based upon the circumstances and direction communicated to CONTRACTOR, and if applicable, in accordance with the schedule set forth in the Schedule of Performance, attached as Exhibit B. Time is of the essence in this Agreement. 5. COMPENSATION FOR ORIGINAL TERM. CITY shall pay and CONTRACTOR agrees to accept as not to exceed coPIpenSation for the full performance of the Services and reimbursable expenses, if any: The total maximum lump sum compensation of dollars ($ );OR Li The sum of dollars ($ ) per hour, not to exceed a total maximum compensation amount of dollars ($ ); OR Rl A sum calculated in accordance with the fee schedule set forth in Exlnbit C, not to exceed a total maximum compensation amount of one hundred eighty-three thousand five hundred three dollars (5183,503.00). .. CONTRACTOR agrees that it can perform the Services for an amount not to exceed the total maximum compensation set forth above. Any hours worked or services performed by CONTRACTOR for which payment would result in a total exceeding the maximum amount of compensation set forth above for performance of the Services shan be at no cost to CITY. The City has set aside the sum of eigbteen thousand three hundred fifty dollars ($18,350.00) for Additional Services. CONTRACTOR shall provide Additional Services only by advanced, written authorization from the City Manager or designee. CONTRACTOR, at the CITY~s request, shall submit a detailed written proposal 1 Rev. December 1, 2009 \\CC-TERRA\jarreol\PURCHDOC\SAP Bids and Proposa1s\RFQ\RFQ136458 CatapiUar 3412E Engine OverbauOContract CII1364S8 PETERSON POWER SYSTEMS.doe CITY OF PALO ALTO CONTRACT NO.: CII136458 including a description of the scope of services, schedule, level of effort, and CONTRACTOR's proposed maximum compensation, including reimbursable expense, for such services. Compensation shall be based on the hourly rates set forth above or in Exhibit C (whichever is applicable), or if such rates are not applicable, a negotiated lump sum. CITY shall not authorize and CONTRACTOR shall not perform any Additional Services for which payment would exceed the amount set forth above for Additional Services. Payment for Additional Services is subject to all requirements and restrictions in this Agreement. 6. COMPENSATION DURING ADDITIONAL TERMS. D CONTRACTOR'S compensation rates for each additional term shall be the same as the original term; OR D CONTRACTOR's compensation rates shall be adjusted effective on the commencement of each Additional Term. The lump sum compensation amount, hourly rates, or fees, whichever is applicable as set forth in section 5 above, shall be adjusted by a percentage equal to ~e change in the Consumer Price Index for Urban Wage Earners and Clerical Workers' for the San Francisco-Oakland-San Jose area, published by the United States Department of Labor Statistics (CPI) which is published most immediately preceding the commencement of the applicable Additional Term, which shall be compared with the CPI published most immediately preceding the commencement date of the then expiring term. Notwithstanding the foregoing, in no event shall CONTRACTOR's compensation rates be increased by an amount exceeding five percent of the rates effective during the immediately preceding term. Any adjustment to CONTRACTOR's compensation rates shall be reflected in a written amendment to this Agreement. 7. INVOICING. Send all invoices to the CITY, Attention: Project Manager. The Project Manager is: John Moran, Public Works Department, Equipment Management Division, at 3201 East Bayshore Road,CA 94303, Telephone: 650-496-6935. Invoices shall be submitted in arrears for Services performed. Invoices shall not be submitted more frequently than monthly. Invoices shall provide a detailed statement of Services performed during the invoice period and are subject to verification by CITY. CITY shall pay the undisputed amount of invoices within 30 days of receipt. GENERAL TERMS AND CONDITIONS A. AC;:CEPTANCE. CONTRACTOR accepts and agrees to all terms and conditions of this Agreement. This Agreement includes and is limited to the terms and conditions set forth in sections 1 through 6 above, these general terms and conditions and the attached exhibits. B. QUALIFICATIONS. CONTRACTOR represents and warrants that it has the expertise and qualifications to complete the services described in Section 1 of this Agreement, entitled "SERVICES," and that every individual charged with the performance of the services under this Agreement has sufficient skill and experience and is duly licensed or certified, to the extent such licensing or certification is required by law, to perform the Services. CITY expressly relies on CONTRACTOR's representations regarding its skills, knowledge, and certifications. CONTRACTOR shall perform all work in accordance with generally accepted business practices and performance standards of the industry, including all federal, state, and local operation and safety regulations. C. INDEPENDENT CONTRACTOR. It is understood and agreed that in the performance of this Agreement, CONTRACTOR and any person employed by CONTRACTOR shall at all times be considered an independent CONTRACTOR and not an agent or employee of CITY. CONTRACTOR shall be responsible for employing or engaging all persons necessary to complete the work required under this Agreement. 2 Rev. December 1, 2009 \\CC-TERRA\jarreol\PURCHDOC\sAP Bids and Proposals\RFQ\RFQ136458 Catapillar 3412E Engine Overhaul\Contract Cl 1 136458 PETERSON POWER SYSTEMS.doc CITY OF PALO ALTO CONTRACT NO.: Cl1136458 D. SUBCONTRACTORS. CONTRACTOR may not use subcontractors to perform any Services under this Agreement unless CONTRACTOR obtains prior written consent of CITY. CONTRACTOR shall be solely responsible for directing the work of approved subcontractors and for any compensation due to subcontractors. E. TAXES AND CHARGES. CONTRACTOR shall be responsible for payment of all taxes, fees, contributions or charges applicable to the conduct of CONTRACTOR's business. F. COMPLIANCE WITH LAWS. CONTRACTOR shall in the performance of the Services comply with all applicable federal, state and local laws, ordinances, regulations, and orders. G. DAMAGE TO PUBLIC OR PRIVATE PROPERTY. CONTRACTOR shall, at its sole expense, repair in kind, or as the City Manager or designee shall direct, any damage to public or private property that occurs in connection with CONTRACTOR's performance of the Services. CITY may decline to approve and may withhold payment in whole or in part to such extent as may be necessary to protect CITY from loss because of defective work not remedied or other damage to the CITY occurring in connection with CONTRACTOR's performance of the Services. CITY shall submit written documentation in support of such withholding upon CONTRACTOR's request. When the grounds described above are removed, payment shall be made for amounts withheld because of them. H. WARRANTIES. CONTRACTOR expressly warrants that all services provided under this Agreement shall be performed in a professional and workmanlike manner in accordance with generally accepted business practices and performance standards of the industry and the requirements of this Agreement. CONTRACTOR expressly warrants that all materials, goods and equipment provided) by CONTRACTOR under this Agreement shall be fit for the particular purpose intended, shall be free from defects, and shall conform to the requirements of this Agreement. CONTRACTOR agrees to promptly replace or correct any material or service not in compliance with these warranties, including incomplete, inaccurate, or defective material or service, at no further cost to CITY. The warranties set forth in this section shall be in effect for a period of one year from completion of the Services and shall survive the completion of the Services or termination of this Agreement. I. MONITORING OF SERVICES. CITY may monitor the Services performed under this Agreement to determine whether CONTRACTOR's work is completed in a satisfactory manner and complies with the provisions of this Agreement. J. CITY'S PROPERTY. Any reports, information, data or other material (including copyright interests) developed, collected, assembled, prepared, or caused to be prepared under this Agreement will become the property of CITY without restriction or limitation upon their use and will not be made available to any individual or organization by CONTRACTOR or its subcontractors, if any, without the prior written approval of the City Manager. K. AUDITS. CONTRACTOR agrees to permit CITY and its authorized representatives to audit, at any reasonable time during the term of this Agreement and for three (3) years from the date of fmal payment, CONTRACTOR's records pertaining to matters covered by this Agreement. CONTRACTOR agrees to maintain accurate books and records in accordance with generally accepted accounting principles for at least three (3) following the terms of this Agreement. L. NO IMPLIED WAIVER. No payment, partial payment, acceptance, or partial acceptance by CITY shall operate as a waiver on the part of CITY of any of its rights under this Agreement. M. INSURANCE. CONTRACTOR, at its sole cost, shall purchase and maintain in full force during the term of this Agreement, the insurance coverage described in Exhibit D. Insurance must be provided by companies with a Best's Key rating of A-:VII or higher and which are otherwise acceptable to the City'S Risk Manager. The City's Risk Manager must approve deductibles and self-insured retentions. In addition, all policies, endorsements, certificates and/or binders are subject to approval by the Risk Manager as to form and content. CONTRACTOR shall obtain a 3 Rev. December I, 2009 \\CC-TERRA\jarreol\PURCHDOC\SAP Bids and Proposals\RFQ\RFQ136458 Catapillar 3412E Engine Overhaul\Contract CI 1 136458 PETERSON POWER SYSTEMS.doc CITY OF PALO ALTO CONTRACT NO.: CI I 136458 policy endorsement naming the City of Palo Alto as an additional insured under any general liability or automobile policy. CONTRACTOR shall obtain an endorsement stating that the insurance is primary coverage and will not be canceled or materially reduced in coverage or limits until after providing 30 days prior written notice of the cancellation or modification to the City's Risk Manager. CONTRACTOR shall provide certificates of such policies or other evidence of coverage satisfactory to CITY's Risk Manager, together with the req\1ired endorsements and evidence of payment of premiums, to CITY concurrently with the execution of this Agreement and shall throughout the term of this Agreement provide current certificates evidencing the required insurance coverages and endorsements to the CITY's Risk Manager. CONTRACTOR shall include all subcontractors as insured under its policies or shall obtain and provide to CITY separate certificates and endorsements for each subcontractor that meet all the requirements of this section. The procuring of such required policies of insurance shall not operate to limit CONTRACTOR's liability or obligation to indemnify CITY under this Agreement. N. HOLD HARMLESS. To the fullest extent permitted by law and without limitation by the provisions of section M relating to insurance, CONTRACTOR shall indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents from and against any and all demands, claims, injuries, losses, or liabilities of any nature, including death or injury to any person, property damage or any other loss and including without limitation all damages, penalties, fmes and judgments, associated investigation and administrative expenses and defense costs, including, but not limited to reasonable attorney's fees, courts costs and costs of alternative dispute resolution), arising out of, or resulting in any way from or in connection with the performance of this Agreement. The CONTRACTOR's obligations under this Section apply regardless of whether or not a liability is caused or contributed to by any negligent (passive or active) act or omission of CITY, except that the CONTRACTOR shall not be obligated to indemnify for liability arising from the sole negligence or willful misconduct of the CITY. The acceptance of the Services by CITY shall not operate as a waiver of the right of indemnification. The provisions of this Section survive the completion of the Services or termination of this Contract. O. NON-DISCRIMINATION. As set forth in Palo Alto Municipal Code section 2.30.510, CONTRACTOR certifies that in the performance of this Agreement, it shall not discriminate in the employment of any person because of the race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. CONTRACTOR acknowledges that it has read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination Requirements and the penalties for violation thereof, and agrees to meet all requirements of Section 2.30.510 pertaining to nondiscrimination in employment. P. WORKERS' COMPENSATION. CONTRACTOR, by executing this Agreement, certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions, as applicable, before commencing and during the performance of the Services. Q. TERMINATION. The City Manager may terminate this Agreement without cause by giving ten (10) days' prior written notice thereof to CONTRACTOR. If CONTRACTOR fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, the City Manager may terminate this Agreement immediately upon written notice of termination. Upon receipt of such notice of termination, CONTRACTOR shall immediately discontinue performance. CITY, CITY shall pay CONTRACTOR for services satisfactorily performed up to the effective date of termination. If the termination if for cause, CITY may deduct from such payment the amount of actual damage, if any, sustained by CITY due to Contractor's failure to perform its material obligations under this Agreement. Upon termination, CONTRACTOR shall immediately deliver to the City Manager any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by CONTRACTOR or given to CONTRACTOR, in connection with this Agreement. Such materials shall become the property of CITY. 4 Rev. December 1, 2009 \\CC-TERRA\jarreo!\PURCHDOC\sAP Bids and Proposals\RFQ\RFQ136458 Catapillar 3412E Engine Overhaul\Contract Cll136458 PETERSON POWER SYSTEMS.doc CITY OF PALO ALTO CONTRACT NO.: Cll136458 EXHIBIT A SCOPE OF SERVICES Caterpillar 3412E Engine Overhaul The Contractor shall remove, transport, rebuild and reinstall the CAT Model 3412 Engine, Serial No. BDT00505 Modification No. 184-5369 Performance Spec 188-8709 ADV 860 HP on the 2001 Morbark grinder Model 5600 Serial No. 169- 1096 located at the City of Palo Alto landfill facility. All internal and external components will be repaired, overhauled, or replaced as required to return the function, condition, performance, and appearance of the engine to O.E.M specifications. The Contractor shall provide a warranty for the engine repair (parts and labor) for a period of no less than two years or 4,000 hours from the date of completion. The engine bell housing and the two clutch bell housings will be repaired or replaced. The clutch assembly will be replaced. The cooling system radiator and the turbocharger system after-cooler will be disassembled, cleaned, and repaired. Note: The engine has been operated a total of 8,381 hours. The price shown in Task #1 (A: Base Bid Item 1) shall represent the cost to perform all of the repair work described above, including travel, machining, fabrication, welding, core charges, shipping, shop supplies, environmental fees, service charges, freight, taxes, and any other charges that will appear on the final invoice. The final invoice will not exceed the cost quoted. All work hereunder shall begin on the date specified on the City's Notice to Proceed, and shall be completed within thirty (30) calendar days after the commencement date specified in the City's Notice to Proceed, with the exception of the Diesel Particulate Filter installation. Items as 02 through 06 on B: Optional Add Bid Items schedule are contingency items that mayor may not be necessary. The need for these items may not become apparent until teardown. If any of these items do become necessary, the City's project manager or his designee will be contacted for authorization of the additional repairs. Item 07 listed on C: Optional Add Bid Item schedule, Diesel Particulate Filter (OPF) is a contingency item that City representatives mayor may not determine will be installed. The Diesel Particulate Filter (OPF) system quoted that will reduce engine weighted particulate matter pollution (soot) to less than .25 grams per brake horsepower hour (glbhp-hr) in accordance with BAAQMD standards effective 01/01/13. The DPF system will be warranted for 5 years (parts and labor). If City representatives determines that the DPF system will be installed, the installation will occur subsequent to the engine overhaul. The Contractor shall perform data log monitoring to ensure that the proposed DPF device is appropriate for the engine application. Note: Current standards require particulate matter pollution to be less than .54 grams glbhp-hr for this engine. 6 Rev. December 1, 2009 \\CC-TERRA\jarreol\PURCHDOC\sAP Bids and Proposals\RFQ\RFQ136458 Catapillar 3412E Engine Overhaul\Contract Cll136458 PETERSON POWER SYSTEMS.doc CITY OF PALO ALTO CONTRACT NO.: Cll136458 Additional Services, if any, shall be authorized in accordance with and subject to the provisions of this contract based on the hourly rate listed in Exhibit "C". Contractor shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. Additional Services shall mean any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described in Exhibit "A". 7 Rev. December 1,2009 \\CC-TERRA\jarreo1\PURCHDOC\sAP Bids and Proposa1s\RFQ\RFQ136458 Catapillar 3412E Engine Overhau1\Contract C11136458 PETERSON POWER SYSTEMS.doc CITY OF PALO ALTO CONTRACT NO.: Cll136458 EXHIBITB SCHEDULE OF PERFORMANCE CONTRACTOR shall perform the Services so as to complete each task within the time period specified below. The time to complete each task may be increased or decreased by mutual written agreement of the project managers for CONTRACTOR and CITY so long as all work is completed within the term of the Agreement. Upon request CONTRACTOR shall provide a detailed schedule of work consistent with the schedule below. Task 1. 2. 3. Contractor to remove, transport, overhaul and reinstall Caterpillar 3412E engine per the specifications and requirements provided in the scope of work: Optional Add Bid Items 02 through 06 if necessary: Optional Add Bid Item -Diesel Particulate Filter System: 8 Complete _x_Days or Weeks FromNTP 30 60 by December 31, 2012 Rev. December 1,2009 \\CC-TERRA\jarreol\PURCHDOC\sAP Bids and Proposals\RFQ\RFQ136458 Catapillar 3412E Engine Overhaul\Contract Cl 1 136458 PETERSON POWER SYSTEMS.doc CITY OF PALO ALTO CONTRACT NO.: CII136458 EXHIBITC SCHEDULE OF FEES CONTRACTOR shall perform the tasks as described and budgeted below. Any services provided or hours worked for which payment would result in a total exceeding the maximum amount of compensation set forth herein shall be at no cost to City. DESCRIPTION OF TASK NOT TO EXCEED COMPENSATION PER TASK INCLUDING REIMBURSABLES Task 1 $91,253.00 (Remove, transport, overhaul and reinstall Caterpillar 3412E engine per the specifications and requirements provided in the scope of work -RFQ item #1 -Sch A) Task 2* $35,715.00 (provide and replace Opti«malltem #1: Engine Block (if necessary) RFQ item #1 -Sch B, includes labor, parts, and sales tax) Task 3* $5,480.00 (Provide and replace Optional Add Item #2: Cylinder Heads (if necessary) RFQ item #2 -Sch B, includes labor, parts, and sales tax) Task 4* $8,406.00 (provide and replace Optional Add Item #3: Engine Crankshaft (if necessary) RFQ item #3 -Sch B, includes labor, parts, and sales tax) Task 5* $4,884.00 (Provide and replace Optional Add Item #4: Radiator (if necessary) RFQ item #4 -Sch B, includes labor, parts, and sales tax) Task 6* $1,717.00 (Provide and replace Optional Add Item #5: Turbocharger Cooler (if necessary) RFQ item #5 -Sch B, includes labor, parts, and sales tax) Task 7* $36,048.00 (provide and install Option Add Item: Diesel Particulate Filter System by Johnson Matthey Model #CRT5-H-EIEO (if necessary) RFQ item #1 -Sch C, includes labor, parts, and sales tax) TOTAL NOT TO EXCEED $183,503.00 *Task 2 through 6 will only be authorized by CITY if during the process of performing Task 1 it is determined that replacement is necessary by CONTRACTOR. Replacement shall be at the quoted prices for labor and parts, plus sales tax as noted. Item 7 is subject to City authorization. The maximum amount of compensation to be paid to Contractor, including both payment for services and reimbursable expenses for all repairs, shall not exceed one hundred eighty-three thousand five hundred three dollars ($183,503.00). 9 Rev. December 1,2009 \\CC-TERRA\jarreo1\PURCHDOC\sAP Bids and Proposa1s\RFQ\RFQ136458 Catapillar 3412E Engine Overhau1\Contract Cll136458 PETERSON POWER SYSTEMS.doc CITY OF PALO ALTO CONTRACT NO.: Cll136458 In the event Additional Services are authorized, beyond the tasks identified above, compensation for additional services shall not exceed eighteen thousand three hundred fifty dollars ($18,350.00). The applicable hourly rate (in-shop rate) shall be at one hundred forty-three dollars ($143.00) as quoted. Additional Services, if any, shall be authorized in accordance with and subject to the provisions of this contract. CONTRACTOR shall not receive any compensation for Additional Services performed without the prior written authorization of CITY. 10 Rev. December 1, 2009 \\CC-TERRA\jarreol\PURCHDOC\SAP Bids and Proposals\RFQ\RFQ136458 Catapillar 3412E Engine Overhaul\Contract Cll136458 PETERSON POWER SYSTEMS.doc ,f " POLICY NUMBER: PMI G23860683 003 ENDORSEMENT NUMBER: •• NAMED INSURED: Peterson Holding Co.; (per policy) COMMERCIAL GENERAL LIABILITY CG 20100704 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Location(s) Of Covered' Operations Any owner, Lessee or Contractor whom you have \, Per written contract or agreement. agreed to include as an ~dditional insured under a written contract or agreement. provided such contract was executed prior to the date of loss. , • w •• . .. .... .. ., M. • .... • ........ ~_ M.. ... .. . .... _.. . ~ . .. . .. .... .... , .. . .. -... --.. .... ..... .. .. , .. . .. .. ..... • w •• . .. " .. . . \ . ... '. . .. .. . .... Information reQuired to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II -Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injurY', "property damage" or "personal and advertising injury" caused, in Whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of y~ur ongoing operations for the additional insured(s) at the location(s) desig- nated above. B. With respect to the insurance afforded to these additional insureds, the following additional exclu- sions apply: This insurance does' not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equip- ment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injqry or damage arises has been put to its in- tended use by any person or organization other than another contractor or subcontractor en-. gaged in performing operations for a principal as a part of the same project. CG20 10 07 04 © ISO Properties, Inc., 2004 Page 1 of'1 o POLICY NUMBER: PMI G23860685 003 ENDORSEMENT NUMBER: -- COMMERCIAL GENERAL LIABILITY CG 20 37 0704 NAMED INSURED: Peterson Holding Co., (per policy) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: . COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Location And Description Of Completed Qperations Any owner, Lessee or Contractor whom' you have Per written contract or agreement. ag~eed to include as an additional insured under a written contract or agreement, provided such con- tract was executed prior to the date of loss. .. . . .. ... " .... , . .... .. .. .~. .-.... . .. . . -.. .. . . . .. .. . .-.... _ .... _. ----,'; ...... : .. ..:: ..... ...;..,~ :..:,... .•.... .. --.. ' .. - - ... __ . '. --""-. . . _--... --- Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II -Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property dam- age" caused, in whole or in part, by "your work" at the location designated and described in the sched- ule Of this endorsement performed for that additional insured and included in the "products-completed operations hazard". CG 20 370704 © ISO Properties, Inc., 2004 Page 1 of 1 o