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HomeMy WebLinkAbout1997-04-22 City Council (18)City of Palo Alto C ty Manager’s Repor TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS AGENDA DATE: SUBJECT: APRIL 22, 1997 CMR:188:97 APPROVAL OF BLANKET AGREEMENT WiTH POWER ENGINEERING CONTRACTORS, INC., AND BACK-UP AGREEMENTS WITH MONTEREY MECHANICAL CO. AND WITH MARELICH MECHANICAL CO. INC. FOR EMERGENCY AND CRITICAL REPAIR SERVICES FOR THE REGIONAL WATER QUALITY CONTROL PLANT This report requests that Council approve a one-year blanket agreement with an option for two additional one-year terms, with Power Engineering Contractors, Inc., in the amount of $50,000. The blanket agreements will be used for emergency and critical repair services for the Regional Water Quality Control Plant (RWQCP). This report also requests that Council approve a one-year backup blanket agreement with options for two additional one-year terms, with Monterey Mechanical Co. and with Marelich Mechanical Co. Inc., in the amount of $25,000 each for the first year. The blanket agreements will be used only for backup emergency and critical repair services for the RWQCP if the primary contractor is unavailable. RECOMMENDATIONS Staff recommends that Council: Approve and authorize the Mayor to execute the attached blanket agreement with Power Engineering Contractors Inc. in the amount of $50,000 from May 1, 1997to April 30, 1998 for emergency and critical repair services for the RWQCP (Attachment A). Staff also recommends that Council authorize the City Manager or her designee to negotiate and renew the blanket agreement with Power Engineering Contractors, Inc. at the end of each contract year for a period not to exceed three years, provided that the work is satisfactory, the funds are appropriated, and the value of the renewal does notexceed $50,000 per year. Approve and authorize the Mayor to execute the attached blanket agreement with Monterey Mechanical Co. inthe amount of $25,000 from May 1, 1997 to April 30, 1998 for back-up emergency and critical repair services for the RWQCP (Attachment CMR:188:97 Page 1 of 3 B). Staff also recommends that Council authorize the City Manager or her designee to negotiate and renew the blanket agreement with Monterey Mechanical Co. at the end of each contract year for a period not to exceed three years, provided that the work is satisfactory, the funds are appropriated, and the value of the renewal does not exceed $25,000 per year. Approve and authorize the Mayor to execute the attached blanket agreement with Marelich Mechanical Co. Inc. in the amount of $25,000 from May 1, 1997 to April 30, 1998 for back-up emergency and critical repair services for the RWQCP (Attachment C). Staff also recommends that Council authorize the City Manager or her designee to negotiate and renew the blanket agreement with Marelich Mechanical Co. Inc. at the end of each year for a period not to exceed three years, provided that the workis satisfactory, the funds are appropriated, and the value of the renewal does not exceed $25,000 per year. POLICY IMPLICATIONS Approval of these blanket agreements is consistent with existing policies. EXECUTIVE SUMMARY The typical life of a wastewater treatment facility is twenty-five years because of the corrosive environment. The RWQCP was built twenty-seven years ago and is reaching a period when equipment and facilities need to be rebuilt or replaced systematically. To provide time for the replacement/rebuilding program, certain equipment must have its service life extended beyond normal. During the next few years, it is anticipated that equipment failures will. occur requiring emergency repairs...The frequency of the emergencies will increase until the RWQCP completes its replacement/rebuilding program. Emergency repairs typically would not allow for the bypassing or stopping of the plant processes. Hence, underwater construction and live-line installation skills are often required. The .RWQCP has an in-house maintenance group thgt does the preventive maintenance and repairs. For economic reasons, the RWQCP maintenance group is not staffed with certain specialized skill workers and is not outfitted with major construction equipment. In an emergency or critical situation, the RWQCP would need the services of a contractor with the appropriate specialized skills and heavy construction equipment. The proposed blanket agreements allow the. RWQCP to obtain the immediate services of specialized skill workers at competitive prices. With these blanket.agreements, the RWQCP will be prepared to promptly address emergencies that would otherwise impact the plant processes. The impacts to the plant processes are proportional to the equipment down time. Without these blanket agreements, the response time will undoubtedly be lengthened consequently impacting plant operations. Staff sent .a request for proposal (RFP) to four contractors on February 4, 1997. Three proposals were received on March 4, 1997 from qualified contractors who have high quality work at the RWQCP. Although the unit prices in all three proposals were very CMR: 188:97 Page 2 of 3 competitive, staff recommended Power Engineering Contractors as the primary contractor because they have all the specialized requested skills in-house and offer the lowest unit price for all items listed in the RFP. Staff recommends that Power Engineering. Contractors, Inc. be awarded a blanket agreement as the primary contractor to provide the emergency or critical repair services for the RWQCP on an as-needed basis. In the event that the primary contractor cannot provide the immediate services, the RWQCP needs to establish a back-up plan to obtain the services. The RFP stated that the RWQCP may contract with one or more contractors for the emergency services. Both Monterey Mechanical Co. and Marelich Mechanical Co. Inc. have most, but not all, of the specialized skills in-house, Staff recommends that the RWQCP obtain back-up blanket agreements with both to cover the emergency needs. FISCAL IMPACT Funds for the first year of the blanket agreement have been appropriated in the FY 1996-97 Wastewater Enterprise Fund. Funds for years two and three are contingent upon Council approval of the budget for each subsequent year. ENVIRONMENTAL ASSESSMENT Equipment repairs are exempt from CEQA trader Section 15310 of the CEQA guidelines. ATTACHMENTS Attachment A - Blanket Agreement with Power Engineering Contractors Attachment B - Blanket Agreement with Monterey Mechanical Co. Attachment C - Blanket Agreement with Marelich Mechanical Co. Inc. PREPARED BY:Bill Miks, Manager RWQCP ¯ ~ DEPARTMENT HEAD REVIEW: CITY MANAGER APPROVAL: GLENN S. ROBERTS Director of Public Works , E1V~LY HARRISON Assistant City Manager CMR: 188:97 Page 3 of 3 FORMAL CONTRAC~T _ ~__C~ of Palo~ Alto CONTRACT No. (Public Work) 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~ ~:lpineerirt0 Cgntractors, Inc~, a " " " ("Contractor"). For and in consideration of the covenants, terms, and conditions (~the provisions") of this Contract, City and Contractor ("the .parties") agree’.’ 1.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 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. General 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:Reoair Services -Em :- -z- :. ; - Total Bid:$_ See Exhibit "A" hereof ~. This Contract shall consist of the documents set forth below, which are on file with the City Clerk and are I~ereby 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. ao This Contract. Request For Proposal Project Specifications. Exhibit =A" to this Contract. Change Orders. Proposal Supplementary Conditions. General Conditions. Standard Drawings and Specifications (1992). Certificate of Insurance, Performance Bond, Labor & Materials (Payment| Bond. Affirmative Action Guidelines and Compliance Report. Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications or the Standard Drawings and Specifications (1992). Any other document not expressly mentioned hereinwhich is issued by City or entered into by the parties. CITY of PALO ALTO: Repair Services (Primary} (Rev.12/96)SECTION 00500-1 of 8 FORMAL CONTRACT City of Palo Alto ~. 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. Jgsgral:l~. 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. ~;1~J3:~]~13. 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 ordamage to property as a result of the willful acts or the negligent acts or omissions of Co .ntractor, 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 adses 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, orwhich 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 omissions of City or any of its Council members, officers, employees, agents or representatives. This indemnification shall extendr 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 f~rther 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, damage~, 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 ac.ts 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.S.C. §§2601-2692, as amended); the Carpenter-PresleyoTanner 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 Ddnldng 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. =~g13~. 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: Repair Services (Primary) (Rev.12/96)SECTION 00500-2 of 8 FORMAL CONTRACT City of Pal. Alto So 10. ~Y.~y.~. The acceptance of any payment or performance, or any partthereof, 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 performance of Contractor in strict compliance with the covenants, terms and conditions of this Contract. .ComDliance with Law=. 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. J~;IB;~. 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 ProjectManager.the Bonds as required under the Notice Inviting Formal Bids. 11.I~eDresentations and Warranties. In the supply of any materials and equipment and the rendering of labor and services during tl~e 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 durir~ 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 Comple~ion,. 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 execu.ted, delivered and performed pursuant to the power and authority conferred upon the person or persons authorized to bind Contractor; CITY of PALO ALTO: Repair Services (Primary} (Rev.12/96)SECTION 00500-3 of 8 FORMAL CONTRACT 12. 13. .14. 15. Cit~, of Pal. Alto ht Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project 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; Co~tractor 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 site. ~gl:~:Z]~Z~t. 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. CJa~. 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. ~g~. During the term of this Contract and for a period of not less than three (3) years after the expiration or eadier 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) sentby private express delivery service, or (4) in thecase 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 Pal. Alto City Clerk 250 Hamilton Avenue P.O. Box 10250¯Pal. Alto, CA 94303 CITY of PALO ALTO: Repair Services (Primary) (Rev.12/96)SECTION 00500-4 of 8 FORMAL CONTRACT Copyto:City of Palo Alto Department of ~ Reaional Water Quality Control Plant 250 Hamilton Avenue P:O. Box 10250 Palo Alto, CA 94303 (415) 329-.~,.8.Z. FAX: (415) 8560196. -ATTN: Daisy Stark, Project Manager To Contractor:Power Enaiqeedna Contractors. Inc~ 127~ N. San Antonio Road Palo Alto. CA 94303 969-9696 FAX: (415 ~ 969-4834 ATTN: Robed Lonawell~ City of Palo Alto 16./~DDrODdat~on 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 wdting 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 (i) at any time within a fiscal year in the event that funds are only appropriated for a poYdon 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. 17. 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. bo Consent.. Whenever in this Contract the approval or consent of a party is required, such approval or consent shall bein 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 Califomia. do Defin~ons. The defin~ons and terms set forth in Sec~on 1 of the Standard Drawings and Specifications (1992) of this Contract are incorporated herein by reference. Force Maje~Jre. 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 supe, dorgovernmental authority. Headings. The paragrap~.h~headings are not a part of this Contract and shall have no effect upon the CITY of PALO ALTO: Repair Services (Primaryl (Rev.12/96}SECTION 00500-5 of 8 FORMAL CONTRACT City of Palo Alto construclion or interpretation of any part of this Contract. Incorporation of Documents. All documents cons~tuting the Contract documents described in Se~on 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. ho i. Integration. This Contract and any amendments hereto between the parlJes constitute the entire agreement be,tween the parlies concerning the Project and Work, and there are no other pdor 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 wddng and signed by th~ parties. Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or other ~pulation in the Contract shall define pr 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 judsdiclion finds or rules that any provision of this Contract is void or unenforceable, the provisions of this Contract not so affected shall remain in fu!l force and effect. Status of Contractor. In the exercise of dghts and obligations under this Contract, Contractor acts as an independent contractor and not. as anagent or employee Of City. Contractor shall not be entitled to any dghts and benefits accorded or accruing to the City Coundl members, officers or employees of City, and Contractor expressly waives any and all claims to such dghts 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 par’des. T~e of the Essence. T’~ne is of the essence of this Contractand each of its provisions. In the calculation of lime hereunder, the lime in which an act is to be performed shall be computed by excluding the first Day and including the last. If the lime in which an act is to be performed falls on a Saturday, Sunday, or any Day observed as a legal holiday by City, the lime for performance shall be extended to the following Business Day. Venue.. In the event that suit is brought by either party hereunder, the panes 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. q, .Recovery of costs. The prevailing party in any action brought to enforce the terms of this Contract or adsing out of this Contract may recover ils reasonable costs, including reasonable attorney’s fees, incurred or expended in connection with such action against the non-prevailing party. CITY of PALO ALTO: Repair Services (Primary) (Rev.12196)SECTION 00500-6 of 8 FORMAL CONTRACT ¯City of Palo Alto 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: By:Its: Mayor CONTRACTOR:" "ntractors. Inc. City Manager Director of Public Works Director of Administrative Services Name: .By: Title: Taxpayer I.D. No. 77-Ol 07625 Manager, Contract Administation (for Risk) APPROVED AS TO FORM: Senii~r Asst. City Attorney CITY of PALO ALTO: Repair Services (Primary} (Rev.12196)SECTION 00500-7 of 8 FORMAL CONTRACT City of Palo Alto CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) COUNTY OF ) On in and for said County, .personally appeared , before me,, a notary public 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) END OF SECTION CITY of PALO ALTO: Repair Services (Primary) (Rev,12/96)SECTION 00500-8 of 8 FORMAL CONTRACT City of P_a_lo Alto CONTRACT No. (Public Work) This .Contract, number ~ dated __ _, is entered into by and between the City of Pal. Alto, a chartered city and a municipal corporation of the State of California ("City"), and_MJ2DIgLP,~¯’ a ~. " ("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 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. General Scone of Proiect 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:$ See Exhibit "A" hereof . This Contract shall con~sist 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 i~ the following descending order of precedence. ao g. h. i.j. k. I. This Contract. Request For Proposal Project Specifications. Exhibit "A" to this Contract. Change Orders. Proposal Supplementary Conditions. General Conditions. Standard Drawings and Specifications (1992). Certificate of Insurance, Performance Bond, Labor & Materials (Payment} Bond. Affirmative Action Guidelines and Compliance Report. Other Specifications, or part .thereof, not expressly incorporated in the Contract Specifications or the Standard Drawings and Specifications |1992). Any other document not expressly mentioned herein which is issued by City orentered into by the parties. CITY of PALO ALTO: Repair Services (Secondary) (Rev.12/96)SECTION 0"0500-1 of 8 _FORMAL coNTRACT _ _ City of Palo Alto ~1113~. In consideration of Contractor’s performance of its obligations hereunder, City shall pay to Contractor the amount sot forth in Contractor’s Bid in accordance with the provisions of thisContract 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. Jl:~qgJrag~. 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 sorvices 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. ,6.~:[~413DJ:~¢,=~. 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, dema’nds, 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 thenegligent 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 imposo 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 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 uso hazardous materials in connection with thedxecution 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.S.C. § §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 ~mended); 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. ~. 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 anymanner, 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: Repair Services (Secondary) (Rev.12196)SECTION 00500-2 of 8 FORMAL CONTRACT City of Palo_ Alto_ 10. ~JY.P,I:. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by City of its rights under thisContract. 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 performance of Contractor in strict compliance with the covenants, terms and conditions of this Contract. " . 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. J~j~;~. 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 requi~ed under the Notice Inviting Formal Bids. , 11.Reoresentations and Warranties. In thesupply 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; CITY of PALO ALTO: Repair Services (Secondary) (Rev.12/96)SECTION 00500-3 of 8 FORMAL CONTRACT . City of Pal. Alto Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project 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; Co~tractor has furnished and will furnish true end 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 Califomia 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 site. 12. 13. ~t,~qJgl:li]:l¢~. 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. CIsimsJff~,J~acto~. 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) Day~ 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. 14.~l~. During the term of this Contract and for a period of not less than three. (3) years after’the expiration or eedier termination of this Contract, City shall have the right to audit Contractor’s Project-related and Work-related wdtings 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. 15.J~.~r,~. 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 sewed upon the other perry.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 w~’rth (1), (2) or (3) above. Personal service shall include, without limitation, service by delivery and service by facsimile transmission. To City:City of Pal. Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Pal. Alto, CA 94303 CITY of PALOALTO: Repair Services (Secondary} (Rev.12/96)SECTION 00500-4 of 8 FORMAL CONTRACT Copy to: To Contractor: City of Pal. Alto Department of ~ Reoional Water Quality Control Plant 250 Hamilton Avenue P.O. Box 10250 Pal. Alto, CA 94303 (415) 329-~ FAX: (415) 856-~. ATTN: Daisy Stark, Project Manager Morlterev Mechanical Co. 8275 San Leandro St. Oakland. CA 94621 ~ 632-317:~ FAX: (510 ~ 632-0752_ ATTN: Timothy Roberts City of Pal. Alto 16." 17. A~oroorialJon of City Funds. This Contract is subject to the fiscal provisions of Article III, Section 12 of the Charter of the City of Pal, Alto. Any charges hereunder for labor, services, materials and equipment may accrue only alter such expendit(~res have been approved in advance in writing in accordance with applicable Laws. This Contractshall terminate without penalty (i) at the end of any fiscal year in the event that funds are not appropriated for the following f~:al year, or (i) 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 Se~on 16 shall control in the event of a conflict with any other provision of this Contract. Miscellaneous. ao Bailee Disclaimer. The par’des 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. bo 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. Definitiohs. The definitions and terms set forth in scion 1 of the Standard Drawings and Specifications. (1992) of this Contract are incorporated herein by reference. eo 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. Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the CITY of PALO ALTO: Repair Services (Secondary) (Rev.12/96)SECTION 00500-5 of 8 FORMAL CONTRACT City of Paio Alto go construction or interpretation of any part of this Contract. Incorporation of Documents. All documents constituting the Contractdocuments described in Se~on 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 padies constitute the entire agreement between the parlJes concerning the Project and Work, and there are no other pdor oral or written agreements between the parties that are not incorporated in this Contract. jo Modification of AgreemenlL This Contract shall not be modified or be bindingupon 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 slJpulalJon 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. ResolulJon. 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. qD 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 ob!igations 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 dghts and benefits accorded or accruing to the. City Coundl members, officers or employees of City, and Contractor expressly waives any and all claims to such dghts and benefits. Successors and Ass~ns. The provisions of this Contract shall inure to the benefit of, and shall apply to and Nnd, the successors and assigns of the panes. 3"~ne 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 an act isto be performed shall be computed by excluding the first Day and including the last. If the time in which an act is to beperformed 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 parUes 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. Recovew of costs. The prevailing pady in any action brought to enforce the terms of’this Contract or adsing 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: Repair Services :(Secondary) (Rev.12/961 SECTION 00500-6 of 8 FORMAL CONTRACT City of Palo Alto 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 By: Its: Mayor CONTRACTOR: By: Name: Monterey Mechanical Co, Director of Public Works Title: Director of Administrative Services Taxpayer I.D. No. 94-2614825 Manager, Contract Administation (for Risk) APPROVED AS TO FORM: Senior Asst. City Attomey CITY of PALO ALTO: Repair Services (Secondary) (Rev.12/96)SECTION 00500-7 of 8 ,FORMAL CONTRACT City of Palo Alto CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF COUNTY OF ) ) On in and for said County, personally appeared , before me,, a notary public 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) END OF SECTION CITY of PALO ALTO: Repair SerVices (Secondary) (Rev.12196}SECTION 00500-8 of 8 FORMAL CONTRACT CONTRACT No. (Public Work) Cit~, of Palo Alto 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~ MechanicaLComoanv. Inc;, a " " " ("Contractor"). For and in consideration of the covenants, terms, and conditions (=the provisions") of this Contract, City and Contractor (’the parties") agree: D 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 is made hereunder, subject to the earlier termination of this Contract. This Contract may be terminated for convenier~ce by the City upon ten (10) days’ wior written notice. General Sco_oe of Pro!ect 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:~oair Services - E ’ . Total Bid:$. See Exhibit =A" hereof ¯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 ofprecedence. a.This Contract. b.Request For Proposal c.Project Specifications,. d.Exhibit ~A".to this Contract, e.Change Orders. f.Proposal."~ g.Supplementary Conditions. h.General Conditions. i.Standard Drawings ar~l Specifications {1992). j.Certificate of Insurance, Performance Bond, Labor & Materials (Payment) Bond¯ k.Affirmative Action Guidelines and Compliance Report. I.Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications or the Standard Drawings and Specifications (1992). ¯ ~ m.Any other document not expressly mentioned herein which is issued by City or entered into by the parties. CITY of PALO ALTO: Repair Services (Rev.12/96)SECTION 00500-1 of 8 FORMAL CONTRACT~City of Palo Alto .~~. 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. Q J~Z~a3Q£,~. 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. J~. Contractor agrees to protect, defend, indemnify and hold City, i~s 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, arisir~g, 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 safeW 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 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 An (42 U.S.C. § §6901-6992k, as amended); the Toxic Substances Control Act (15 U.S.C. § §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. ~il~. 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: Repair Services (Rev.12196)SECTION 00500-2 of 8 FORMAL CONTRACT City of Pal. Alto 10. ~V.P~. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by Cit.y of its rights under this Contract. A waiver by Ci.W 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 performance of Contractor in strict compliance ,with the covenants, terms and conditions of this Contract. J . 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. J~iB;I=. 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 [equired under the Notice Inviting Formal Bids. 11..Reoresentations and Warraqties. 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; fw Any materials and equipment which shall be used dudng 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 Con.tractor 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 availabre 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; CITY of PALO ALTO: Repair Services (Rev.12/96)SECTION 00500-3 of 8 FORMAL CONTRACT ¯__Citp, of Palo Alto 12. 13. 14. 15. Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project 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; CQntractor 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; ’ ko 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 site. ~s,~gl::il:]l¢~. 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. ~. All claims pertaining t° extra work, additiona! 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. ~u~t~. During the term of this Contract and for a period of not less than three (3) years after the expiration or eadier 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. J~.ti£.,~. 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 ~rvice, or (4) in the case of a facsimile transmission, if sent to the telephone FAX number set forth below du~ing 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. acco,.rdance with (1), (2) or (3) above. Personal service shall include, without limitation, service by delivery andservme by facsimile transmission. To City:City of Paio Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 CITY of PALO ALTO: Repair Services (Rev.12196)SECTION 00500-4 of 8 FORMAL CONTRACT City of Pal. Alto Copy to:City of Pal. AltoDepartment of Public works Regional Water Quality Control Plant 250 Hamilton Avenue P.O. Box 10250 Pal. Alto, CA 94303 To Contractor:. (415) 329-.~,=.~_FAX: (415) ATTN: Daisy Stark, Project Manager Marelich Mechanical co.. Inc. 3108 Diablo Avenue HaYward. (~A 94545 ~ 785~500 FAX: (~ _ 785-7711 ATTN: W.F. Moselev 16.AoorooriatJon of City Funds. This Contract is subject to the fiscal provisions of Ar~cle III, SeclJon 12 of the Charter of the City of Pal. Alto. Any charges hereunder for labor, sen/ices, 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 (i) at any fime within a fiscal year in the event that funds are only appropriated for a porlJon 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. 17.Miscellaneous. ao Bailee Disclaimer. The parlJes 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. d= Controlling Law. The parties agree that this Contract shall be governed and construed by and in accordance with the Laws of the State of Califomia. Definitions. The defin~ons and terms Set forth in SecUon 1 of the Standard Drawings and Specifications (1992) of this Contract are incorporated herein by reference. Force Majeure. Neither party shall be c~eemed 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. Headings. The paragrap..h..headings are not a part of this Contract and shall have no effect upon the CITY of PALO ALTO: Repair Services (Rev.12/96}SECTION 00500-5 of 8 FORMAL CONTRACT "Citp, of Palo Alto ho 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. IntegralJon. 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 pdor oral or wdtten agreements between the parties that are not incorporated in this Contract. Modification of AgreemenL This Conbact shall not be modified or be binding upon the parties, unless such modification is agreed to in wddng and signed by the pares. Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or other slJpulation in the Contract shall define or otherwise control, establish, or limit the performance required or permilted orto be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and cond~ons. ko 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. mo no oo 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 Contract.or expressly waives any and all claims to such dghts and benef’ds. Successors and Assigns. The provisions of this Conkact 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 essenceof this Contract and each of its provisions. In the calculalJon of time 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. qo ¯ Venue. In the event that suit is brought by eitherparty 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 adsing out of this Contract may recover its reasonable costs, including reasonable attorney’s fees, incurred or expended in connection with such action against the n0n-prevailing party. CITY of .PALO ALTO: Repair Services (Rev.12/96)SECTION 00500-6 of 8 FORMAL CONTRA.~CT .. _ ’ ,, ’ Cit)/of Palo AIt(. 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 Clerk APPROVED: CITY OF PALO ALTO By: Its: Mayor CONTRACTOR: M_~areli~ch M~ City Manager By: Name: Director of Public Works Title: Director of Administrative Services Taxpayer I.D. No. 94-3049648 Manager, Contract Administation (for Risk) APPROVED AS TO FORM: Senior Asst. City Attorney CITY of PAL0 ALTO: Repair Services (Rev.12/96)SECTION 00500-7 of 8 FORMAL CONTRACT City of Palo Alto CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) COUNTY OF ) On in and for said County, personally appeared. ¯ before me,, a notary public 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 helshelthey 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) END OF SECTION CITY of PALO ALTO: Repair Services (Rev,12/96)SECTION 00500=8 of 8