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HomeMy WebLinkAbout1997-04-22 City Council (20)City of Palo Alto City Manager’s Repo , 5 TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER ¯ DEPARTMENT: PUBLIC WORKS AGENDA DATE: APRIL 22, 1997 SUBJECT:APPROVAL OF A CONTRACT ~WITH HIBBARD MARINE SERVICES FOR CONSULTANT SERVICES TO INSPECT THE LARGE DIAMETER SEWERS FOR THE REGIONAL WATER QUALITY CONTROL PLANT This report requests approval of a contract with Hibbard Marine Services, in the amount of $78,635 for consultant services to inspect the large diameter sewers for the Regional Water Quality Control Plant (RWQCP). RECOMMENDATIONS Staff recommends that Council: Approve and authorize the Mayor to execute the attached contract (Attachment C) with Hibbard Marine Services in the amount of $78,635 for consultant services to inspect the large diameter sewers for the RWQCP. Authorize the City Manager or her designee to negotiate and execute one or more amendments to the agreement with Hibbard Marine Services for related additional but unforeseen services which may develop during the project, the total value of which- amendments shall not exceed $7,000. This contingency amount is needed if excessive pipeline abnormalities are encountered that would prolong the inspection process. POLICY IMPLICATIONS This approval of this agreement is consistent with existing policies. EXECUTIVE SUMMARY This project will inspect the condition of two major sewers for the RWQCP: 1) a 28-year- old 72-inch influent pipe from Mountain View and Los Altos, and 2) a 34-year, old 54-inch effluent pipe that discharges the plant’s treated wastewater to the Bay. As part of the preventive maintenance program, these sewers are due for a thorough inspection. CMR:198:97 Page 1 of 3 Although sewer inspections are commonly done, extra care must be taken on this project because of the location of the sewers. The request for proposals included special requirements to address two concerns that are related to the location of the sewers: The 72-inch influent pipe crosses the environmentally sensitive marsh area. The inspection equipment and technique must have minimal impact to the marsh and the habitat. The timing of the inspection is confined to a small window of two summer months after the nesting season and before the wet weather season, as def’med by the Army Corps of Engineers. Both sewers lie on Bay mud that provides very little support. The condition of the grit deposit, the bottom of the pipe below the water line, and the top half of the pipe must be identified. A Request for Proposals (RFP) was issued on January 10, 1997 to six firms who are regularly engaged in similar projects. The RFP holders list is attached (Attachment A). A non-mandatory pre-proposal conference was held; and three firms inspected the project sites. Three proposals were received on February 25, 1997. Those firms not responding indicated they could not.meet all the proposal requirements. A selection committee consisting of representatives from the RWQCP operations and engineering group, and Kennedy/Jenks Consultants (the designer of both large diameter sewers) reviewed the proposals. All three firms were interviewed by the selection committee. The proposals were evaluated based on the Proposers technique, abilities to address the City’s concerns, qualifications, experience, cost for the services proposed, and. reference checks. An evaluation of the three proposals is attached (Attachment B). The proposed fee ranges from a low of $30,535 to a high of $92,400, which is a direct reflection of the proposed efforts to meet the special requirements. The . selection committee unanimously selected Hibbard Maine Services for this project because its proposed technique and equipment will adequately address the City’s concerns. Funds for the sewer inspection .have been appropriated in the FY1996-97 Wastewater Treatment Capital Improvement Project #9504. This project will lead to subsequent repair projects. It was estimated that the minimum repair project would involve the cleaning and removal of grit deposits and some minor repairs at a cost of approximately $800,000. Funds for the minimum project have been included in the proposed FY1997-98 budget for Wastewater Treatment Capital Improvement Project #9504. ~- CMR:198:97 Page 2 of 3 ENVIRONMENTAL ASSESSMENT This project is a preventive maintenance project that only performs the pipeline impection with no repair or comtruction activities. It utilizes a special inspection technique that has no impact to the marsh. This inspection project is categorically exempt from CEQA under Section 15301. The subsequent repair project may require CEQA review depending on the extent and scope of the repairs. A - RFP Holders List B - Proposal Evaluation C- Contract with Hibbard Marine Services PREPARED BY: Bill Miks, Manager RWQCP DEPARTMENT HEAD REVIEW: GLENN S. ROBERTS Director of Public Works CITY MANAGER APPROVAL: Assistant City Manager CMR:198:97 Page 3 of 3 INSPECTION OF LARGE DIAMETER SEWERS ¯ ATTACHMENT A RFP HOLDERS LIST - RWQCP o o Specialty Sewers Services, Inc. ¯ Hibbard Marine Services Sonex, LTD. PSS, Inc. Power Engineering Contractors Pacific Pipeline Survey CONTRACT NO. BETWEEN THE CITY OF PALO ALTO AND HIBBARD MARINE SERVICES FOR CONSULTING SERVICES Attachment C ~ This Contract No.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 HIBBARD MARINE SERVICES, a LLC under the laws of the State of Michigan, located at 477 Gray Woods, Lake Angelus, Michigan("CONSULTANT"). RECITALS: WHEREAS, CITY desires certain professional consulting services ("Services") and the preparation and deliverYoOf, without limitation, one or more sets.of documents, drawings, maps, plans, designs, data, calculations, surveys, specifications, schedules or other writings ’("Deliverables") (Services and Deliverables are, collectively, the "Project"), as more fully described in Exhibit "~’; and WHEREAS, CITY desires to engage CONSULTANT, including its employees., if any, in providing theServices by reason of its qualifications and experience in performing the Services, and CONSULTANT has offered to complete the Project on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Contract, the parties agree: .SECTION i. TERM i.I This Contract will commence on the date of its execution by CITY, andwill terminate upon the completion of the Project, unless~this Contract isearlier terminated by CITY. Upon the receipt of ~CITY’s notice to proceed, CONSULTANT will commence work on the initial and subsequent Project tasks in accordance with the time schedule set forth in Exhibit "A". Time is of the essence of this Contract. In the event that the Project is not completed within the time required through any fault of CONSULTANT,~CITY’s city manager will have the optionof extending the time schedule for any period of time. This provision will not preclude the recovery of damages for delay caused by CONSULTANT. SECTION 2.~ SCOPE OF PROJECT; CHANGES & CORRECTIONS 2.1 The scope Of Services and Deliverables constituting the Project will be performed, delivered or executed by CONSULTANT under the phases of the Basic Services as described below. 2.2 CITY may order substantial changes in the scope or character of the Basic Services~ the Deliverables, or the Project, either decreasing or increasing the amount of work required of 970410 ~Tn 0071179 the approval of CITY’s City Council, as may be required, CONSULTANT will.be entitled to full compensation for all work performed prior to CONSULTANT’s receipt of the notice of change and further will be entitled to an extension of the time schedule. Any increase in compensation for substantial changes will be determined in accordance with the provisions of this Contract. CITY will not be liable for the cost or payment of any change in work, unless the amount of additional compensation attributable to the change in work is agreed to, in writing, by CITY before CONSULTANT commences the performance of any such change in work. 2.3 Where the Project entails the drafting and submission of Deliverables, for example, construction plans, drawings, and specifications, any and all errors, omlssions, or ambiguities in the Deliverables, which are discovered by CITY before invitations to bid on a construction project (for which the Deliverables are .required) are distributed by CITY, will be corrected by CONSULTANT at no cost to CITY, provided CITY gives notice to CONSULTANT. 2.4 Any and all errors, omissions, or ambiguities in the Deliverables, which are~discovered by CITY after the construction contract is awarded by CITY, will be performed by CONSULTANT, as follows: (a) at no cost to CITY insofar as those .Services, including the Basic Services or the Additional Services, as described below, or both, will result in minor or nonbeneficial changes in the construction work required of the construction CONSULTANT; or (b) at CITY’s cost insofar as those Services, including the Basic Services or the Additional Services, or both, will add a direct and substantial ~benefit tothe construction work ~equired.of the construction CONSULTANT. The project manager in the reasonable exercise of his or her discretion will determine whether the~ Basic Services or the Additional Services, or both, will contribute minor or substantial benefit to the construction work. SECTION 3 CONSULTANT QUALIFICATIONS, ~STATUS, AND DUTIES OF 3.1 CONSULTANT represents and warrants that it has the expertise and professional qualifications to furnish or cause to be furnished the Services and Deliverables. CONSULTANT further represents and warrants that the project director and every individual, including any consultant (including CONSULTANTs), charged with the performance of the Services are duly licensed or certified by the State of California, to the extent such licensing or certification is required by law to perform the Services, and that the Project will. be executed by them or under their supervision. CONSULTANT will furnish to CITY for approval,~ prior to execution of this Contract, a list of all individuals and the names of their employers or principals to be employed as consultants. 970410 syn 0071179 3.2 In reliance on the representations and ~warranties set forth in this Contract, CITY hires CONSULTANT to execute, and CONSULTANT covenants and agrees that it will execute or cause to be executed, the Project. 3.3 CONSULTANT will assign JIM HIBBARD as the project director to have supervisory responsibility for the performance, progress, and "execution of the Project. JIM HIBBARD will be assigned as the project~coordinator who will representCONSULTANT during the day-to-day work on the Project. If circumstances or conditions subsequent to the execution of this Contract cause the substitution of the project director or project coordinator for any reason, the appointment of a substitute project director or substitute project coordinator will be subject to the prior written approval of the project manager. 3.4 CONSULTANT represents and warrants that it will: 3.4.1 Procure all permits, and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the Project; 3.4.2 Keep itself fully informed of all existing and future Federal, State of California, and local laws, ordinances, regulations, orders, and decrees which .may affect those.engaged or employed under this Contract and any materials used in CONSULTANT’s performance of the Services; 3.4.3 At all times observe and comply with, and cause its employees and consultants, if any, who are assigned to the performance of this Contract to observe and comply with, the laws, ordinances, regulations, orders and decrees mentioned above; and 3.4.4 Will report immediately to the project manager, in writing, any discrepancy or inconsistency it discovers in the laws, ordinances, regulations, orders, and decrees mentioned above in .relation to the Deliverables. 3.5 Any Deliverables given t~, or prepared or assembled by, CONSULTANT or its consultants, if any, under this Contract will -become the property of CITY and will not be made available to any individual or organization by CONSULTANT-or its consultants, if any, without the prior written approval of the city manager. 3,6 CONSULTANT will provide CITY with copies of any documents as specified in Exhibit A which are a part of the Deliverables upon their completion and acceptance by CITY. 3.7 If CITY requests additional copies .of any documents which are a part of the Deliverables, CONSULTANT will provide such additional copies and CITY will compensate CONSULTANT for its duplicating costs. 970410 wn 0071179 3.8 CONSULTANT will be responsible for employing or engaging all persons necessary to execute the Project. All consultants of CONSULTANT will be deemed to be directly controlled and supervised by CONSULTANT, which will be responsible for their performance. If any employee or consultant of CONSULTANT fails or refuses to carry out the provisions of this Contract or appears to be incompetent or to act in a disorderly or improper manner, the employee or consultant will be discharged immediately from further performance under this Contract on demand of the project manager. 3.9 In the execution ’of the Project, CONSULTANT and its consultants, if any, will at all times be considered independent CONSULTANTs and not agents or employees of CITY. ’3.10 CONSULTANT will~ perform or obtain or cause to be performed or obtained any and all of the following Additional Services, not included under the Basic Services, if so authorized, in writing, by CITY: 3.10.1 Providing services as an expert witness in connection with any public hearing or meeting, arbitration proceeding,or proceeding of a court of record; 3.10.2 Incurring travel and subsistenceexpenses for CONSULTANT and its staff beyond those normally required under the Basic Services; 3.10.3 Performing any other Additional Services that may be agreed upon by the parties subsequent to the execution of this Contract; and 3.10.4 Other Additional’ Services now or hereafter described in an exhibit to this Contract. 3.11 CONSULTANT will be responsible for employing all sub-consultants deemed necessary to .assist CONSULTANT in the performance of the Services. The appointment of sub-consultants must be approved,-in advance, by CITY; ’in writing,~ and must remain acceptable to CITY during the term of this Contract. SECTION 4.DUTIES OF CITY 4.1 CITY will furnish or cause to be furnished the services listed in Exhibit "~’ and such information regarding its requirements applicable to the Project as may be reasonably requested by CONSULTANT. 4.2 CITY will review and approve, as necessary, in a timely manner the Deliverables and each phase of work performed by CONSULTANT. CITY’s estimated time of review and approval will be furnished to CONSULTANT at the time of submission of each phase of work. CONSULTANT acknowledges and understands that the interrelated exchange of information among CITY’s various departments makes it extremely difficult for CITY to firmly establish the time of each review and approval task. CITY’s failure 970410 ~yn 0071179 4 to review and approve within the estimated time schedule will not constitute a default under this Contract. 4.3 The city manager will represent CITY for all purposes under this Contract. Daisy Stark is designated as the project manager for the city manager. The project manager will supervise the performance, progress, and execution of the Project, .and will be assisted by Greg MeAmber, the Project Engineer. 4.4 If~CITY observes or otherwise becomes aware of any default in theperformance of CONSULTANT, CITY will use reasonable efforts .to give written notice thereof to CONSULTANT in a timely manner. SECTION 5.COMPENSATION 5.1 CITY will compensate CONSULTANT for the following services and work: 5.1-.1 In consideration of the full performance of the Basic Services, including any authorized reimbursable expenses, CITY will pay CONSULTANT a fee not to exceed Sixty-Eight Thousand Six Hundred Thirty-Five Dollars ($68,635.00). The fees of the consultants, who have direct contractual relationships with CONSULTANT, will be approved, in advance, by CITY. CITY reserves the right to refuse payment of such fees, if such prior approval is not obtained by CONSULTANT. 5.1.~2 In consideration of the full performance of Additional Services, the amount of compensation set forth in Exhibit "B" will notexceed Ten Thousand Dollars ($i0,000,00). An employee’s time will be computed at a multiple of zero (-0-) times the employee’s direct personnel .expense. described below. The rate schedules may be updated by CONSULTANT only once ~each calendar year, and the rate schedules will not become effective for purposes of this Contract, unless and until CONSULTANT gives CITY thirty (30) days’ prior written notice of the effective date of any revised rate schedule. 5.1.3 The full payment of charges for extra work or changes, or both, in the execution of the Project will .be made, provided such request for payment is initiated by CONSULTANT and authorized, in writing, by the project manager. Paymentwill be made within thirty (30) days of submission by .CONSULTANT of a statement, in triplicate, of itemized costs covering such work or changes, or both. Prior to commencing such extra work or changes, or both, the parties will agree upon an estimated maximum cost for such extra work or changes. C0NSULTANTwill not be paid for extra work or changes, including, without limitation, any design work or change order preparation, which is made necessary on account of CONSULTANT’s errors, omissions, or oversights. 5.1.4 Direct personnel expense of employees assigned to the execution of the Project by CONSULTANT will include only the work of architects, engineers, designers, job captains, 970410 ~yn 0071179 5 draftspersons, specification writers and typists, in consultation, research and~design, work in producing drawings, specifications and other documents pertaining to the Project, and in services rendered during construction at the site, to the extent such services are expressly contemplated under this Contract° Included in the cost of direct personnel expense of these employees are salaries and mandatory and customary benefits such as statutory employee benefits, insurance, sick leave, holidays and vacations, pensions ’and similar benefits. 5.2 The schedule of payments will be made as follows: 5.2.1 Payment of the Basic Services will be made in monthly progress payments in proportion tothe quantum of services performed, or in accordance with any other schedule of payment mutually agreed upon by the parties, as set forth in Exhibit "B", or within thirty (30) days of submission, in triplicate, of such requests if a schedule of payment is not specified. Final payment will be made by CITY after CONSULTANT has submitted all Deliverables,. including, without limitation, reports which have been approved by the project manager. 5.2.2 Payment of the Additional Services will be made in monthly progress payments for services rendered, within thirty (30) days of submission, in triplicate, of such requests. 5.2.3 No deduct-ions will be made from CONSULTANT’s compensation on account of penalties,.liquidated damages, or other sums withheld by CITY from payments to general CONSULTANTs. SECTION 6.ACCOUNTING, AUDITS, OWNERSHIP OF RECORDS 6.1 Records of the direct personnel expenses and expenses incurred in connection with the performance of Basic Services and Additional Services pertaining to the Project will be prepared, maintained, and retained by CONSULTANT in accordance with generally accepted accounting principles and will be made available to CITY for auditing purposes at mutually convenient times during the term of this Contract and for three (3) years following the expiration or earlier termination of this Contract. 6.2 The originals of the Deliverables~prepared by or under the direction of CONSULTANT in the performance of this Contract will become the property of CITY irrespective of whether the Project is completed upon CITY’s payment of the amounts required to be paid to CONSULTANT. These originals will be delivered to CITY without additional compensation. CITY will have the right to utilize any final and incomplete drawings, estimates, specifications, and any other documents prepared hereunder by CONSULTANT, but CONSULTANT disclaims any responsibility or liability for any alterations Or modifications of such documents. 6 970410 ~y. 0071179 SECTION 7.INDEMNITY 7.1 CONSULTANT agrees to protect, indemnify, defend and hold-harmless CITY, its Council members, .officers, employees and agents, from any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, caused by or arising out of CONSULTANT’s, its officers’, agents’, consultants’ or employees’ negligent acts, errors, or omissions, or willful misconduct, or conduct for which applicable law may impose strict liability on CONSULTANT in the performance of or failure to perform its obligations under this’ Contract. SECTION 8. WAIVERS 8.1 The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Contract or of the provisions of any ordinance or law will not be deemed to be a waiver of any such covenant, term, condition, provision, ordinance, or law or of any subsequent breach or violation of the same or of any other covenant, term~ condition, provision, ordinance or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder will not be deemed to be a waiver of any preceding breach or violation by the other party of any covenant, term, condition or provision of this Contract or of any applicable law or ordinance. 8.2 No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Contract. SECTION 9.INSURANCE 9.1 CONSULTANT, at its sole cost and expense, will obtain and maintain, in full force and effect during the term of this Contract, .the insurance coverage.described in Exhibit "C", insuring not only CONSULTANT and its consultants, if any, but also, with the exception of workers’ compensation, employer’s liability and professional liability insurance, naming CITY as an additional insured concerning CONSULTANT’s performance under this Contract. 9.2 All insurance coverage required hereunder will be provided through carriers with Best’s Key RatingGuide ratings of A:X or higher which are admitted to transact insurance business in the State of California. Any and all consultants of CONSULTANT retained to perform Services under this Contract will obtain and maintain, in full force and effect during the term of this Contract, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 9.3 Certificates of such insurance, preferably on the forms provided by CITY, will be filed with CITY concurrently with the execution of this Contract. The certificates will be subject to the approval of CITY’s risk .manager and will contain an endorsement stating that the insurance is primary coverage ~and will 7 not be canceled or altered by the insurer except after filing with the CITY’s city clerk thirty (30) days.’ prior written notice of such cancellation or alteration, and that the City of Palo Alto is named as an additional insured except in policies ~of workers’ compensation, employer’s liability, and professional liability insurance. Current certificates of such insurance will be kept on file at all times during the term of this Contract with the city clerk. 9.4 The procuring of such required policy or policies Of insurance will notbe construed to limit CONSULTANT’s liability hereunder nor to fulfill the indemnification provisions of this Contract. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Contract, including such damage, injury, or loss arising after the Contract is terminated or the term has expired. SECTION i0. WORKERS’ COMPENSATION I0.i CONSULTANT, by executing this Contract, certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provisions~ as applicable, before commencing the performance of the Project. SECTION Ii TERMINATIONOR SUSPENSION OF CONTRACT 0R PROJECT ii.i The city manager may suspend the execution of the Project, in whole or in part, or terminate this Contract, with or without cause, by giving thirty. (30) days’ prior written notice thereof to CONSULTANT, or immediately after submission to CITY by CONSULTANT of any completed item of Basic Services. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance underthis Contract. 11.2 CONSULTANT may terminate this Contractor suspend its execution of the Project by giving thirty ~(30) days’ prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY or in the event CITY indefinitely withholds or withdraws its request for the initiation or continuation of Basic Services or the execution of the Project. 11.3 Upon such suspension, or termination by CITY, CONSULTANT will be . compensated for the Basic Services and Additional Services performed and Deliverables received and approved prior to receipt of written notice from CITY of such suspension or abandonment, together with authorized additional and reimbursable expenses then due. If the Project is resumed after it has been suspended for more than 180 days," any change in CONSULTANT’s compensation will be subject to reneg~otiation and, if necessary, approval of CITY’s City Council. If this Contract is suspended or terminated on account of a default by CONSULTANT, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s services which.are of direct and immediate benefit to CITY, as such determination may be made by the city manager in the reasonable exercise of her discretion. 11.4 In the event of termination of this Contract or suspension of work on the Project by CITY where CONSULTANT is not in default, CONSULTANT will receive compensation as follows: 11.4.1 For approved items of services, CONSULTANT will be compensated for each item of service fully.performed in the amounts authorized under this Contract. 11.4.2 For approved items of services on. which a notice to proceed is issued by CITY, but which are not fully performed, CONSULTANT will be compensated for each item of service in an amount which bears the same ratio to the total fee otherwise payable for the performance of the service as the quantum of service actually rendered bears to the services necessary for the full performance of that item of service. 11.4.3 The total compensation payable under the preceding paragraphs of this Section will not exceed the payment specified under Section 5 for the respective items of service to be furnished by CONSULTANT. 11.5 Upon such suspension or termination, CONSULTANT will deliver to the citymanager immediately any and all copies of theDeliverables, whether or not completed, prepared by CONSULTANT or its consultants, if any, or given to CONSULTANT or its consultants, if any, in connection with this Contract. Such materials will become the property of CITY. 11.6 The failure of CITY to agree with CONSULTANT’s independent findings, conclusions, or recommendations, if the same are called for under this Contract, on the basis of differences in matters of judgment, will not be construed as a failure on the part of CONSULTANT to fulfill its obligations under this Contract. SECTION 12.ASSIGNMENT 12.1 This Contract is for the persona~ ~services ofCONSULTANT, therefore, CONSULTANT will not asslgn, transfer, convey, or otherwise dispose of this Contract or any right, title or interest in or to the same or any part thereof without the prior written consent of CITY~ A’consent ~to one assignment will not be deemed to be a consent to any subsequent assignment. Any assignment made without the approval of ~CITY will be void and, at the option of the city manager,this Contract may be terminated. This Contract will not be assignable by operation of law~ 9970410 syn 0071179 SECTION 13 NOTICES 13.1 All notices hereunder will be given, in writing, and mailed, postage prepaid, by certified mail, addressed as follows: To CITY:Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 To CONSULTANT: Attention of thelproject director at the address of CONSULTANT recited above SECTION 14. CONFLICT OF INTEREST 14.1 In accepting this Contract, CONSULTANT covenants that it presently ’has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 14.2 CONSULTANT further covenants that, in the performance of this Contract, it will not employ independent contractors or persons having such an interest mentioned above. CONSULTANT certifies that no one who has or will have any financial interest under this Contract is an officer or employee of CITY; this ~provision will be interpreted in accordance with the applicable provisions of the Palo Alto Municipal Code and the Government Code of the State of California. SECTION 15. NONDISCRIMINATION 15.1 As set forth in the Palo Alto Municipal Code, .no discrimination will be made in theemployment of persons under this Contract because of the age, race, color, national origin, ~ancestry, religion, disability, sexual preference or gender of such person. If the value of this Contract is, or may be, five thousand dollars ($5,000) or more, CONSULTANT agrees Go meet all requirements of the Palo Alto Municipal . Code pertaining to nondiscrimination in employment, including completing the requisite form furnished by CITY and set forth in Exhibit "D". 15.2 CONSULTANT agrees that each contract for services from independent providers will contain a provision substantially as follows: "[Name of Provider] will provide CONSULTANT with a certificate stating that [Name of Provider] is currently in compliance with all Federal and State of California laws covering nondiscrimination in employment; that [Name of Provider] will.pursue anaffirmative course of action as required by the Affirmative Action 970410 ~n 0071179 10 Guidelines of the City of Palo Alto; and that [Name of Provider] will not discriminate in the employment of any person under this contract because of the age, race, color, national, origin, ancestry, religion, disability, sexual preference or gender of such person." 15.3 If CONSULTANT is found in violation of the nondiscrimination ’provisions of the State of California Fair Employment Practices Act or similar provisions of Federal law or executive order in the performance of this Contract, it will be in default of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part, or to deduct the sum of twenty-five dollars ($25) for each person for each calendar day during which such person was subjected to discrimination, as damages for breach of contract, or both. 0nly a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer will constitute evidence of a breach of this Contract. 15.4 If CONSULTANT. is found in default of the nondiscrimination provisions of this Contract or the applicable Affirmative Action Guidelines pertaining to this Contract, CONSULTANT will be found in material breach of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part, or to deduct from the amount payable to CONSULTANT the sum of two hundred fifty dollars ($250) for each calendar day during which CONSULTANT is not in compliance with this provision as damages for breach of contract, or both. SECTION 16.MISCELLANEOUS PROVISIONS 16.~i CONSULTANT represents and warrants that it has knowledge of the requirements of the federal Americans with Disabilities Act of 1990, and the Government Code and the. Health and Safety.Code of the State of California, relating to access to public buildings and accommodations for disabled persons, and relating to facilities for disabled persons. CONSULTANT will comply with or ensure by its advice that compliance with such provisions will be effected pursuant to the terms Of this Contract. 16.2 Upon the agreement of the parties, any controversy -or claim arising out of or relating to this Contract may be settled by arbitration in accordance with the Rules of the American Arbitration Association, and ’judgment upon the award rendered by the Arbitrators may be entered in any court having jurisdiction thereof. 16.3 This Contract will be governed by the laws of the State of California, excluding its conflicts of law. 16-.4 In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court Ii0704|0 ~vn 007! |70 for the Northern District of California in the County of Santa Clara, State of California. 16.5 The prevailing party in any action brought to enforce the terms of this Contractor arising out of this Contract may recover its reasonable costs and attorneys’ fees expended in connection with that action. 16.6 This document represents the entire and integrated Contract between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 16.7 All provisions of this Contract, whether covenants or conditions, will be deemed to be both covenants and conditions. 16.8 The.covenants, terms, conditions and provisions of this Contract.will apply to, and will bind, the heirs, successors, executors, administrators,, assignees, and consultants, as the case may be, of the parties. 16.9 If a court of competent jurisdiction finds or rules that any provision of this Contract or any amendment thereto is void or unenforceable, the unaffected provisions of this Contract and any amendments thereto will remain in full force and effect. 16.10 All exhibits referred to in this Contract and any addenda, appendices, attachments, and schedules which, fromtime to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in.this Contract and will be deemed to be a part of ~this Contract. 16.11 This Contract may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. 16.12 This Contract is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Contract will terminate without any penalty (a) at the end of any fiscal year in the event .that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This Section 16.12 will take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Contract. III III III III 12 970410 syn 0071179 IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Contract on the date first above written. ATTEST:CITY OF PALO ALTO City Clerk APPROVED AS TO FORM: Mayor Senior Asst. City Attorney APPROVED: AssiStant City Manager Director of Public Works HIBBARD MARINE SERVICES / I t s : _’z~ zz~2~ Taxpayer’s I.D. No. Acting Director of Administrative Services Risk Manager Attachments: EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": EXHIBIT "D": SCOPE OF PROJECT & TIME SCHEDULE RATE SCHEDULE INSURANCE NONDISCRIMINATION COMPLIANCE FORM 13 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) " STATE OF W/L/") ) SS. COUNTY OF ) On /~/~// // , 1997, before me, a’ Notary Publ~mc in and for sa, id County and State, personally appeared. _~/2W~ ~. //,~~/ , 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. NOTARY POP, LIC - OAKL/S, ND COUNTY, MY ~OMMISSION EXR ~ 14 970410 ~j" 0071179 "