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HomeMy WebLinkAbout1998-06-22 City Council (22)City City of Palo Alto Manager’s Report 7 TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: COMMUNITY SERVICES DATE:JUNE 22, 1998 CMR: 255:98 SUBJECT:AWARD OF CONTRACT TO FOUR SEASONS LANDSCAPE MAINTENANCE FOR LANDSCAPE MAINTENANCE SERVICES; AWARD OF CONTRACT TO ZONGAR JOHNSON CONSTRUCTION FOR TENNIS COURT CLEANING SERVICES RECOMMENDATION Staff recommends that Council: o Approve and authorize the Mayor to execute the attached three-year contract with Four Seasons Landscape Maintenance in the amount of $326,586 for the first contract year for landscape maintenance services; and Zongar Johnson Construction in the amount of $34,150 for the first contract year for tennis court cleaning services. Authorize the City Manager or her designee, to negotiate and execute one or more change orders to the contract with Four Seasons Landscape Maintenance for related, but unforeseen additional work that may develop during the first year of the contract, the total value of which shall not exceed $32,659; and with Zongar Johnson Construction, the total value of which shall not exceed $3,415. o Authorize the City Manager or her designee, to exercise the option to renew the contracts for a second and third year for $326,586 and $34,150 respectively in each year provided the contractor’s are responsive to the City’s needs, and the quality of the contractor’s work is acceptable during the first year Of the contract and/or other conditions which will determine the City’s willingness to renew the contract. Funding for years two and three is contingent upon Council approval of the budget for each subsequent year. Authorize the City Manager or her designee, to negotiate and execute one or more change orders to the second and third years of the contract for related, additional but unforseen work which may develop during the project, the total value of which shall not exceed $32,659 each of the two years for landscape maintenance and $3,415 each of the two years for tennis court cleaning services, provided the contracts are renewed for those years. CMR:255:98 Page 1 of 3 DISCUSSION Project Description The work to be performed under the contract is for landscape maintenance services and tennis court cleaning services. The areas include city facilities such as fire stations, libraries, City Hall, Cultural Center, Utility Substations, Ventura School and Boulware, Bowden, Cogswell, E1 Palo Alto, Johnson, Scott, Robles, Scale, Briones, Bol, Cameron, Eleanor, Hoover, Kellogg, Mayfield, Monroe, Ramos, Sarah Wallis, Terman, Weisshaar, Timothy Hopkins and Werry Parks. Median and roadside strips, including Alma Street, Embarcadero Road, Page Mill Road, and Oregon Expressway, University Avenue; tree wells; islands and underpasses; E1 Camino islands; and University, Midtown, and California Avenue parking lots. Bid Process A notice inviting formal bids for landscape maintenance and tennis court cleaning services were sent on March 11, !998 to thirteen contractors. Interested contractors were invited to bid on either or both landscape maintenance and tennis court cleaning services. The bidding period was twenty-nine days. A pre-bid meeting was held on March 10, 1998, seven bidders attended the meeting. Bids were received from seven qualified contractors on April 7, 1998, as listed on the attached bid summary (Attachment A). Bids ranged from a high of $1,671,618 to a low bid of $979,758 for landscape maintenance services for a three-year period. Bids ranged from a high of $142,415 to a low bid of $102,450 for tennis court cleaning services for a three-year period. Contractors not responding indicated that they would not be competitive or were too busy. Staff has reviewed all bids submitted and recommends that the annual, bid of $326,586 per year for a three-year period ($979,758) submitted by Four Seasons Landscape Maintenance Service be accepted and that Four Seasons Landscape Maintenance Service be declared the lowest responsible bidder for landscape maintenance services. Staff also reviewed all bids submitted for tennis court cleaning services and recommends that the bid of $32,659 per year for a three-year period ($102,450) submitted by Zongar Johnson Construction be accepted and that Zongar Johnson Construction be declared the lower responsible bidder. The bid for landscape maintenance services is 3 percent below staff’s estimate of $1,009,140. The change order amount of $97,974 equals 10 percent of the total contract, is requested to cover unforeseen work that may develop. The bid for tennis court cleaning services is 6 percent below staff’s estimate of $108,597. The change order amount of $10,245 equals 10 percent of the total contract, is requested to cover unforeseen work that may develop. Staff checked references supplied by both contractors for previous work performed and found no significant complaints. Staff also checked with the Contractor’s State License Board and found that both contractors have an active license on file. CMR:255:98 Page 2 of 3 RESOURCE IMPACT Funds for these contracts are included in the City Manager’s proposed 1998-99 budget. Prices for the 1998-99 fiscal year will remain the same for another two-year period. POLICY IMPLICATIONS This recommendation is consistent with existing City policies. ENVIRONMENTAL REVIEW This project is categorically exempt from California Environmental Quality Act (CEQA). ATTACHMENTS Attachment A: Attachment B: Attachment C: Bid Summary Four Seasons Landscape Maintenance Services - Contract Zongar Johnson Construction - Contract PREPARED BY: Donald Piana, Park Superintendent DEPARTMENT HEAD: PAUL THILTGEN DIRECTOR, COMMUNTIY SERVICES CITY MANAGER APPROVAL: HARRISON Assistant City Manager CMR:255:98 Page 3 of 3 LU 7- nnrn zz oo 00 0 FORMAL CONTRACT SECTION CONTRACT No. (Public Work) This Contract, number dated , is entered into by and between the City of Palo Alto, a chartered city and a municipaFcorporation of the State of California ("City") , and Four Seasons Landsca[~e and Maintenance, Inc., a Corporation, ("Contractor"). For and in consideration of the covenants, terms, and conditions ("the provisions") of this Contract, City and Contractor ("the parties") agree: Term. This Contract shall commence and be binding on the parties on the Date of Execution of this Contract, and shall expire on the date of recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment {s made hereunder, subject to the earlier termination of this Contract. This Contract may be terminated for convenience by the City upon ten (10) days’ prior written notice. .(3¢neral Scooe of Project and Work. Contractor shall furnish labor, services, materials and equipment in connection With the construction of the Project and complete the Work in accordance with the covenants, terms and conditions of this Contract to the satisfaction of City. The Project and Work is generally described as follows: Title of Project: Total Bid: Landscao~ Maintenance IFB No. 103185 $ 979,758 ¢0ntract Documents. This Contract shall consist of the documents set forth below, which are on file with the City Clerk and are hereby incorporated by reference. For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this Contract, these documents and the provisions thereof are set f.orth in the following descending order of precedence. a.This Contract. b.Notice Inviting Formal Bids. c.Project Specifications. d.Drawings. e.Change Orders. f.Bid. g.Supplementary Conditions. h.’General Conditions. i.Standard Drawings and Specifications (1992). j.Certificate of Insurance, Performance Bond, Labor & Materials (Payment) Bond. k.Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications or the Standard Drawings and Specifications (1992). I.Any other document not expressly mentioned herein which is issued by City or entered into by the parties. CQmoensat.ion. In consideration of Contractor’s performance of its obligations hereunder, City shall pay to Contractor the amount set forth in Contractor’s Bid in accordance with the provisions of this Contract and upon the receipt of written invoices and all necessary supporting documentation within the time set forth in the Contract Specifications and the Standard Drawings and Specifications (1992), or, if no time is stated, within thirty (30) Days of the date of receipt of Contractor’s invoices. CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 1 OF 8 FORMAL CONTRACT SECTION 500 Insurance. On or before the Date of Execution, Contractor shall obtain and maintain the policies of insurance coverage described in the Notice Inviting Forma~ Bids on terms and conditions and in amounts as may be required by the Risk Manager. City shall not be obligated to take out insurance on Contractor’s personal property or the personal property of any person performing labor or services or supplying materials or equipment under the Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting,,,coverage required under this Contract on or before the Date of Execution. The certificates and endorsements for each insurance policy shall be signed by a person who is authorized by that insurer to bind coverage in its behalf. Proof of insurance shall be mailed to the Project Manager to the address set forth in Section 15 of this Contract. Indemnification. Contractor agrees to protect, defend, indemnify and hold City, its Council members, officers, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly or indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful acts or the negligent acts or omissions of Contractor, or which results from Contractor’s noncompliance with any Law respecting the conditio.n, use, occupation or safety of the Project site, or any part thereof, or which arises from Contractor’s failure to do anything required under this Contract or for doing anything which Contractor is required not to do under this Contract, or which arises from conduct for which any Law may impose strict liability on Contractor in the performance of or failure to perform the provisions of this Contract, except as may arise from th~ sole willful acts or negligent acts or omissions of City or any of its Council members, officers, employees, agents or representatives. ~This indemnification shall extend to any and all claims, demands, or liens made or filed by reason of any work performed by Contractor under this Contract at any time during the term of this Contract, or arising thereafter. To the extent Contractor will use hazardous materials in connection with the execution of its obligations under this Contract, Contractor further expressly agrees to protect, indemnify, hold harmless and defend City, its City Council members, officers and employees from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments City may incur, arising, in whole or in part, in connection with or as a result of Contractor’s willful acts or negligent acts or omissions under this Contract, under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § §9601-6975, as amended); the Resource Conservation and Recovery Act (42 .U.S.C. § §6901-6992k, asamended); the Toxic Substances Control Act (15 U.S.C. § §2601-2692, as amended); the Carpenter-Presley-Tan.ner Hazardous Substance Account Act (Health & Safety Code, § §25300-25395, as amended); the Hazardous Waste Control Law (Health & Safety Code, § §25100-25250.25, as amended); the Safe Drinking Water and Toxic Enforcement Act (Health & Safety Code, §§25249.5-25249.13, as amended); the Underground Storage of Hazardous Substances Act (Health & Safety Code, § §25280-25299.7, as amended); or under any other local, state or ¯ federal law, statute or ordinance, or at common law. Assumption .Q~ Ri~k. Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the property of Contractor which may occur in, on, or about the Project site at any time and in any manner, excepting such loss, injury, or damage as may be caused by the sole willful act or negligent act or omission of City or any of its Council members, officers, employees, agents or representatives. CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 2 OF 8 o 10. 11. FORMAL CONTRACT SECTION 500 Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by City of its rights under this Contract. A waiver by City of any breach of any part or provision of this Contract by Contractor shall not operate as a waiver or continuing waiver of any subsequent breach of the same or any other provision, nor shall any custom or practice which may arise between the parties in the administration of any part or provision of this Contract be construed to waive or to lessen the right of City to insist upon the performan~ce of Contractor in strict compliance with the covenants, terms and conditions of this Contract. Compliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force pertaining to the Project and Work and this Contract, with the requirement of any bond or fire underwriters or other similar body now or hereafter constituted, with any discretionary license or permit issued pursuant to any Law of any public agency or official as well as with any provision of all recorded documents affecting the Project site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws pertaining to nondiscrimination and affirmative action in employment and hazardous materials. Bonds. As a condition precedent to City’s obligation to pay compensation to Contractor, and on or before the Date of Execution, Contractor shall furnish to the Project Manager the Bonds as required under the Notice Inviting Formal Bids. Reoresentations and Warranties. In the supply of any materials and equipment and the rendering of labor and services during the course and scope of the Project and Work, Contractor represents and warrants: Any materials and equipment which shall be used during the course and scope of the Project and Work shall be vested in Contractor; Any materials and equipment which shall be used during the course and scope of the Project and Work shall be merchantable and fit to be used for the particular purpose for which the materials are required; Any labor and services rendered and materials and equipment used or employed during the course and scope of the Project and Work shall be free of defects in workmanship for a period of one (li year after the recordation of the Noticeof Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder; Any manufacturer’s warranty obtained by Contractor shall be obtained or shall be deemed obtained by Contractor for and in behalf of City. eo Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request, whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true and correct at the time such information is submitted or made available to the City; Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to the terms and conditions of Contractor’s Bid, except as may be permitted by the Notice Inviting Formal Bids; go Contractor has the power and authority to enter into this Contract with City, that the individual executing this Contract is duly authorized to do so by appropriate resolution, and that this Contract shall be executed, delivered and performed pursuant to the power and authority conferred upon the person or persons authorized to bind Contractor; h° CITY OF Contractorhasnotmadeana~empttoexertundueinfluence withthePurchasing ManagerorPr~ect PALO ALTO CONTRACT SECTION 500 PAGE 3 OF 8 12, 13. 14. 15. FORMAL CONTRACT SECTION 500 Manager or any other person who has directly contributed to City’s decision to award the contract to Contractor; There are no unresolved claims or disputes between Contractor and City which would materially affect Contractor’s ability to perform under the Contract; Contractor has furnished and will furnish true and accurate statements, records, reports, resolutions, certifications, and other written information as may be requested of Contractor by City from time to time during the term of this Contract; Contractor and any person performing labor and services under this Project are duly licensed by the State of California a.s required by california Business & Professions Code Section 7028, as amended; and Contractor has fully examined and inspected the Project site and has full knowledge of the physical conditions of the Project site. Assignment. This Contract and the performance required hereunder is personal to Contractor, and it shall not be assigned by Contractor. Any attempted assignment shall be null and void. Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the Contract Time or other disputes arising out of the Contract shall be submitted by Contractor to City in writing by certified or registered mail within ten (10) Days after the claim arose or within such other time as may be permitted or required by law, and shall be described in sufficient detail to give adequate notice of the substance of the claim to City. Audits bv City. During the term of this Contract and for a period of not less than three (3) years after the expiration or earlier termination of this Contract, City shall have the right to audit Contractor’s Project-related and Work-related writings and business records, as such terms are defined in California Evidence Code Sections 250 and 1271, as amended, during the regular business hours of Contractor, or, if Contractor has no such hours, during the regular business hours of City. Notices. All agreements, appointments, approvals, authorizations, claims, demands, Change Orders, consents, designations, notices, offers, requests and statements given by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the United States mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission, if sent to the telephone FAX number set forth below during regular business hours of the receiving party and followed within two (2) Days by delivery of a hard copy of the material sent by facsimile transmission, in accordance with (1), (2) or (3) above. Personal service shall include, without limitation, service by delivery and service by facsimile transmission. To City:City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 4 OF 8 FORMAL CONTRACT SECTION Copy to: To Contractor: City of Palo Alto Community Services Department 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 Phone: (650) 496-6962 FAX: (650) 496-5925 ATTN.: Don Piana, Project Manager Four Seasons Landscape & Maintenance, Inc. 3570 Haven Avenue Redwood City, CA. 94063 .. Phone: FAX: ATTN.: .inn I inn 16. 17. Appropriation of City Funds. This Contract is subject to the fiscal provisions of Article III, Section 12 of the Charter of the City of Palo Alto. Any charges hereunder for labor, services, materials and equipment may accrue only after such expenditures have been approved in advance in writing in accordance with applicable Laws. This Contract shall terminate without penalty (I) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (ii) 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 Contract are no longer available. This Section 16 shall control in the event of a conflict with any other provision of this Contract. Miscellaneous Bailee Disclaimer. The panes understand and agree that City does not purport to be Contractor’s bailee, and City is, t.herefore, not responsible for any damage to the personal property of Contractor. Consent. Whenever in this Contract the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent. Controlling Law. The parties .agree that this Contract shall be governed and construed by and in accordance with the Laws of the State of California. eo Definitions. The definitions and terms set forth in Section 1 of the Standard Drawings and Specifications (1992) of this Contract are incorporated herein by reference. Force Majeure..Neither party shall be deemed.to be in default on account of any delay or failure to perform its obligations under this Contract which directly results from an Act of God or an act of a superior governmental authority. CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 5 OF 8 FORMAL CONTRACT SECTION 500 Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the construction or interpretation of any part of this Contract. Incorporation of Documents. All documents constituting the Contract documents described in Section 3 hereof and all do~cuments which may, from time to time, be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and shall be deemed to be part of this Contract. Integration. This Contract and any amendments hereto between the parties constitute the entire agreement between the parties concerning the Project and Work, and there are no other prior oral or written agreements between the parties that are not incorporated in this Contract. Modification of Agreement. This Contract shall not be modified or be binding upon the parties, unless such modification is agreed to in writing and signed, by the parties. Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or other stipulalJon in the Contract shall define or otherwise control, establish, or limit the performance required or per~tted or to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. Resolu~on. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or other writing, which authorizes any director, officer or other employee or partner to act for or in behalf of Contractor or which authorizes Contractor to enter into this Contract. Severability. If a court of competent jurisdiction finds or rules that any provision of this Contract is void or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect. Status of Contractor. In the exercise of rights and obligations under this Contract, Contractor acts as an independent contractor and not as an agent or employee of City. Contractor shall not be entitled to any rights and benefits accorded or accruing to the City Council members, officers or employees of City, and Contractor expressly waives any and all claims to such rights and benefits. Successors and Assigns. The provisions of this Contract shall inure t’o the benefit of, and shallapply to and bind, the successors and assigns of the parties. Time of the E~sence. Time is of the essence of this Contract and each of its provisions. In the calculation of lime hereunder, the time in which an act is to be performed shall be computed by excluding the first Day and including the last. If the time in which an act is to be performed falls on a Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be extended to the following Business Day. Venue. in the event that suit is brought by either party hereunder, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Santa Clara in the City of San Jose or in the United States District Court for the Northern District of California in the City of San Jose. Recovery of costs. The prevailing party in any action brought to enforce the terms of this Contract or arising out of this Contract may recover its reasenab~e costs, including reasonable attorney’s fees, incurred or expended in connection with such action against the non-prevailing party. CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 6 OF 8 FORMAL CONTRACT SECTION IN WITNESS WHEREOF, the parties have by their duly appointed representatives executed this Contract in the city of Palo Alto, County of Santa Clara, State of California on the date first stated above. ATTEST:CITY OF PALO ALTO City Clerk APPROVED: City Manager Director of Community Services Director of Administrative Services " By: Its: Mayor CONTRACTOR: Title: Taxpayer I.D. No.: Manager, Contract Administration (insurance review) APPROVED AS TO FORM: Senior Asst.. City Attorney CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 7 OF 8 FORMAL CONTRACT SECTION 500 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) ) ) , before me, /~t-~,- ¢’. ~’(~M~/~/~-, a notary public in and personally known to me (or proved to me.on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature /~~~/~~(Seal)AR]HUR V.HEI~NANDE-Z Commlssion # 1081642 Notary Public -- CallfomklSanto Clara Counly My Comm.Expire~ Dec END OF SECTION CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 8 OF 8 FORMAL CONTRACT SECTION CONTRACT No. (Public Work) 500 This Contract, number dated , is entered into by and between the City of Palo Alto, a chartered city and a municipal corporation of the State of California ("City"), and Zon~ar Johnson Construction, a Corooration, ("Contractor"). For and in consideration of the covenants, terms, and conditions ("the provisions") of this Contract, City and Contractor ("the parties") agree: Term. This Contract shall commence and be binding on the parties on the Date of Ex’ecution of. this Contract, and shall expire on the date of recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder, subject to the earlier termination of this Contract. This Contract may be terminated for convenience by the City upon ten (10) days’ prior written notice. (~eneral .Scooe of Project and Work. Contractor shall furnish labor, services, materials and equipment in connection with the construction of the Project and complete the Work in accordance with the covenants, terms and conditions of this Contract to the Satisfaction of City. The Project and Work is generally described as follows: Title of Project: Total Bid: Landscaoe Maintenance IFB No. 103185 ~ 102,45Q .Contract Documents. This. Contract shall consist of the documents set forth below, which are on file with the City Clerk and are hereby incorporated by reference. For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this Contract, these documents and the provisions thereof are set forth in the following descending order of precedence. g. h. i.j. k. This Contract. Notice Inviting Formal Bids. Project Specifications. Drawings. Change Orders. Bid. Supplementary Conditions. General Conditions. Standard Drawings and Specifications (1992). Certificate of Insurance, Performance Bond, Labor & Materials (Payment) Bond. Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications o~ the Standard Drawings and Specifications (1992). Any other document not expressly mentioned herein which is issued by City or entered into by the parties. ¢omoensation. In consideration of Contractor’s performance of its obligations hereunder, City shall pay to Contractor the amount set forth in Contractor’s Bid in accordance with the provisions of this Contract and upon the receipt of written invoices and all necessary supporting documentation within the time set forth in the Contract Specifications and the Standard Drawings and Specifications (1992), or, if no time is stated, within thirty (30) Days of the date of receipt of Contractor’s invoices. CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 1 OF 8 FORMAL CONTRACT SECTION 500 Insurance. On or before the Date of Execution, Contractor shall obtain and maintain the policies of insuranCe coverage described in the Notice Inviting Formal Bids on terms and conditions and in amounts as may be required by the Risk Manager. City shall not be obligated to take out insurance on Contractor’s personal property or the personal property of any person performing labor or services or supplying materials or equipment under the Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting’coverage required under this Contract on or before the Date of Execution. The certificates and endorsements for each insurance policy shall be signed by a person who is authorized by that. insurer to bind coverage in its behalf. Proof of insurance shall be mailed to the Project Manager to the address set forth in Section 15 of this Contract. Indemnifi~al;ion. Contractor agrees to protect, defend, indemnify and hold City, its Council members, officers, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly or indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful acts or the negligent acts or omissions of Contractor, or which results from Contractor’s noncompliance with any Law respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises from Contractor’s failure to do.anything required under this Contract or for doing anything which Contractor is required not to do under this Contract, or which arises from conduct for which any Law may impose strict liability on Contractor in the performance of or failure to perform the provisions of this Contract, except as may arise from the sole willful acts or negligent acts or omissionsof City or any of its Council members, officers, employees, agents or representatives. This indemnification shall extend to any and all claims, demands’, or liens made or filed by reason of any work performed by Contractor under this Contract at any time during the term of this Contract, or arising thereafter. To the extent Contractor will use hazardous materials in connection with the execution of its obligations under this Contract, Contractor further expressly agrees to protect, indemnify, hold harmless and defend City, its City Council members, officers and employees from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments City may incur, arising, in whole or in part, in connection with or as a result of Contractor’s willful acts or negligent acts or omissions under this Contract, under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § §9601-6975, as amended); the Resource Conservation and Recovery Act (42 U.S.C. § §6901-6992k, as amended); the Toxic Substances Control Act (15 U.SoC. § §2601-2692, as amended); the Carpenter-Presley-Tanner Hazardous Substance Account Act (Health & Safety Code, § §25300-25395, as amended); the Hazardous Waste Control Law (Health & Safety Code, § §25100-25250.25, as amended); the Safe Drinking Water and Toxic Enforcement Act (Health & Safety Code, § §25249.5-25249.13, as amended); the Underground Storage of Hazardous Substances Act (Health & Safety Code, § §25280-25299.7, as amended); or under any other local, state or federal law, statute or ordinance, or at common law. Assumption of Ri~k. Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the property of Contractor which may occur in, on, or about the Project site at any time and in any manner, excepting such loss, injury, or damage as may be caused by the sole willful act or negligent act or omission of City or any of its Council members, officers, employees, agents or representatives. CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 2 OF 8 10. FORMAL CONTRACT SECTION 50O ~. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by City of its rights under this Contract. A waiver by City of any breach of any part or provision of this Contract by Contractor shall not operate as a waiver or continuing waiver of any subsequent breach of the same or any other provision, nor shall any custom or practice which may arise between the parties in the administration of any part or provision of this Contract be construed to waive or to lessen the right of City to insist upon the performmTce of Contractor in strict compliance with the covenants, terms and conditions of this Contract. (;QmDliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force pertaining to the Project and Work and this Contract, with the requirement of any bond or fire underwriters or other similar body now or hereafter constituted, with any discretionary license or permit issued pursuant to any Law of any public agency or official as well as with any provision of all recorded documents affecting the Project site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws pertaining to nondiscrimination and affirmative action in employment and hazardous materials. Bonds. As a con~lition precedent to City’s obligation to pay compensation to Contractor, and on or before the Date of Execution, Contractor shall furnish to the Project Manager the Bonds as required under the Notice Inviting Formal Bids. Representations and Warranties. In the supply of any materials and equipment and the rendering of labor and services during the course and scope of the Project and Work, Contractor represents and warrants: Any materials and equipment which shall be used during the course and scope of the Project and Work shall be vested in Contractor; Any materials and equipment which shall be used during the course and scope of the Project and Work shall be merchantable and fit to be used for the particular purpose for which the materials are required; Any labor and services rendered and materials and equipment used or employed during the course and scope of the Project and Work shall be free of defects in workmanship for a period of one (1) year after the recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder; Any manufacturer’s warranty obtained by Contractor shall be obtained or shall be deemed obtained by Contractor for and in behalf of City. Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request, whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true and correct at the time such information is submitted or made available to the City; Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to the terms and conditions of Contractor’s Bid, except as may be permitted by the Notice Inviting Formal Bids; Contractor has the power and authority to enter into this Contract with City, that the individual executing this Contract is duly authorized to do so by appropriate resolution, and that this Contract shall be executed, delivered and performed PUrsuant to the power and authority conferred upon the person or persons authorized to bind Contractor; h.Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 3 OF 8 12. 13. 14. 15. FORMAL CONTRACT SECTION 500 Manager or any other person who has directly contributed to City’s decision to award the contract to Contractor; jo There are no unresolved claims or disputes between Contractor and City which would materially affect Contractor’s ability to perform under the Contract; Contractor has furnished and will furnish true and accurate statements, records, reports, resolutions, certifications, and other written information as may be requested of Contractor by City from time to time during the term of this Contract; Contractor and any person performing labor and services under this Project are duly licensed by the State of California as required by California Business & Professions Code Section 7028, as amended; and Contractor has fully examined and inspected the Project site and has full knowledge of the physical conditions of the Project si:te. Assianment. This Contract and the performance required hereunder is personal to Contractor, and it shall not be assigned by Contractor. Any attempted assignment shall be null and void. Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the Contract Time or other disputes arising out of the Contract shall be submitted by Contractor to City in writing by certified or registered mail within ten (10) Days after the claim arose or within such other time as may be permitted or required by law, and shall be described in sufficient detail to give adequate notice of the Substance of the claim to City. Audits bv City. During the term of this Contract and for a period of not less than three (3) years after the expiration or earlier termination of this Contract, City shall have the right to audit Contractor’s Project-related and Work-related writings and business records, as such terms are defined in California Evidence Code Sections 250 and 1271, as amended, during the regular business hours of Contractor, or, if Contractor has no such hours, during the regular business hours of City. Notices. All agreements, appointments, approvals, authorizations, claims, demands, Change Orders, consents, designations, notices, offers, requests and statements given by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the United States mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission, if sent to the telephone FAX number set forth below during regular business hours of the receiving .party and followed within two (2) Days by delivery of a hard copy of the material sent by facsimile transmission, in accordance with (1), (2) or (3) above. Pers.onal service shall include, without limitation, service by delivery and service by facsimile transmission. To City:City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 4 OF 8 FORMAL CONTRACT SECTION 5OO Copy to: To Contractor: City of Palo Alto Community Services Department 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 Phone: (650) 496-6962 FAX: (650) 496-5925 ATTN.: Don Piana, Project Manager Zon.qar Johnson Construction 1650 Meadowlark Lane Sunnyvale, CA. 94087 16. 17. Appropriation of City Funds. This Contract is subject to the fiscal provisions of Article III, Section 12 of the Charter of the City of Palo Alto. Any charges hereunder for labor, services, materials and equipment may accrue only alter such expenditures have been approved in advance in writing in accordance with applicable Laws. This Contract shall terminate without penalty (I) at the end of any fiscal year in the event that funds are not appropriated for the " following fiscal year, or (ii) 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 Contract are no longer available. This Section 16 shall control in the event of a conflict with any other provision of this Contract. Miscellaneous. Bailee Disclaimer. The parties understand and agree that City does not purport to be Contractor’s bailee, and City is, therefore, not responsible for any damage to the personal property of Contractor. Consent. Whenever in this Contract the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent. Controlling Law. The parties agree that this Contract shall be governed and construed by and in accordance with the Laws of the State of California. Definitions. The definitions and terms set forth in Section 1 of the Standard Drawings and Specifications (1992) of this Contract are incorporated herein by reference. Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to perform its obligations under this Contract which directly results from an Act of God or an act of a superior governmental authority. CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 5 OF 8 FORMAL CONTRACT SECTION 500 Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the construction or interpretation of any part of this Contract. Incorporation of Documents. All documents constituting the Contract documents described in Section 3 hereof and all documents which may, from time to time, be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and shall be deemed to be part of this Contract. Integration. This Contract and any amendments hereto between the parties constitute the entire agreement between the parties concerning the Project and Work, and there are no other prior oral or written agreements between the parties that are not incorporated in this Contract. Modification of Agreement. This Contract shall not be modified or be binding upon the parties, unless such modification is agreed to in writing and signed by the parties. Provision. Any agreement, covenant, condifion, clause, qualification, restriction, reservation, term or other stipulation .in the Contract shall define or otherwise control, establish, or limit the performance required or permitted or to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or other writing, which authorizes any director, officer or other employee or partner to act for or in behalf of Contractor or which authorizes Contractor to enter into this Contract. Severability. If a court of competent jurisdiction finds or rules that any provision of this Contract is void or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect. Status of Contractor. In the exercise of rights and obligations under this Contract, Contractor acts as an independent contractor and not as an agent or employee of City. Contractor shall not.be entitled to any rights and benefits accorded or accruing to the City Council members, officers or employees of City, and Contractor expressly waives any and all claims to such rights and benefits. Successors and Assigns. The provisions of this Contract shall inure to the benefit of, and shall apply to and bind, the successors and assigns of the parties. Time of the Essence. Time is of the essence of this Contract and each of its provisions. In the calculation of time hereunder, the time in which anact is to be performed shall be computed by excluding the first Day and including the last. Ifthe time in which an act is to be performed falls on a Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be extended to the following Business Day. Venue. In the event that suit is brought by either party hereunder, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Santa Clara in the City of San Jose or in the United States District Court for the Northern District of California in the City of San Jose. Recovery of costs. The prevailing party in any action brought to enforce the terms of this Contract or arising out of this Contract may recover its reasonable costs, including reasonable attorney’s fees, incurred or expended in connection with such action against the non-prevailing party. CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 6 OF 8 FORMAL CONTRACT SECTION 500 IN WITNESS WHEREOF, the parties have by their duty appointed representatives executed this Contract in the city of Palo Alto, County of Santa Clara, State of California on the date first stated above. ATTEST: City Clerk CITY OF PALO ALTO By: Its: Mayor APPROVED:CONTRACTO City Manager Director of Community Services Director of Administrative Services -Manager, Contract Administration (insurance review) APPROVED AS TO FORM: Senior Asst.. City Attorney CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 7 OF 8 FORMAL CONTRACT SECTION 500 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) for said Cou~y, personally appeared, .me,, a notary public in and pe~nnallv_known tr~ ~ (or proved t~ o me on the basis of satisfactory evidence) t~e the person~) whose name(~r~subscribed to the within instrument and ackn~edged to me tha~~ executed the same ~~ir authorized capacity(i~), and that by~s~signature~ on the instrument the person~, or the entity upon behalf of which the person~) acted, executed the instrument. WITNESS my hand and official seal.~--~ = -- --~£;c,ol -- = ~~ ~1" "~¢~k Commission # 1167564 ~ Signature ,(Seal) I ~MyComm.~D~re~Jan31,~2~ END OF SECTION CITY OF PALO ALTO CONTRACT SECTION 500 PAGE 8 OF 8