HomeMy WebLinkAboutStaff Report 423-09City of Palo Alto
City Manager's Report
TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: PUBLIC WORKS
DATE: NOVEMBER 16, 2009 CMR:423:09
REPORT TYPE: CONSENT
SUBJECT: Approval of a Contract with Elite Landscaping Incorporated in the Amount
of $1,220,075 for Construction of Greer Park Renovation and Pump Station
Replacement -Capital Improvement Program Project PE-09002
RECOMMENDATION
Staff recommends that Council:
1. Approve and authorize the City Manager or his designee to execute the attached contract
(Attachment A) with Elite Landscaping Incorporated in the amount of $1,220,075 for
construction of the Greer Park renovation and Pump Station Replacement project; and
2. Authorize the City Manager or his designee to negotiate and execute one or more change
orders to the contract with Elite Landscaping Incorporated for related, additional but
unforeseen work that may develop during the project, the total value of which shall not
exceed $122,000.
BACKGROUND
Johrt Lucas Greer Park is a 22-acre neighborhood park located at 1098 Amarillo Avenue in Palo
Alto. Originally the site of the Palo Alto Drive-In Theatre, the first phase of the park was
completed in 1975. Two subsequent phases of improvements were implemented in the 1980's
resulting in the configuration that currently exists. The park site also includes an undeveloped
1.75 acre parcel (Phase IV) in the southeast portion of the park at the comer of Colorado Avenue
and West Bayshore Road.
In August 2008, the firm of Callander Associates Landscape Architecture was hired to serve as
the primary designer for the proposed improvements to Greer Park. In the intervening months
they have worked with city staff to generate conceptual designs, conduct public outreach,
implement design development and produce final construction documents.
After conducting preliminary site investigations gathering input from city staff, two conceptual
design alternatives for improvements to the children's play area and for the development of
Phase IV were presented to interested members of the public at a neighborhood meeting on
December 2,2008. Working on input from that meeting and upon further consultation with city
staff, the Calendar Associates began the design development process with the intent of fleshing
out the preferred details from the alternative conceptual designs and melding them into a single
concept for each area. These intermediate designs were again presented to interested members
CMR:423:09 Page 10f5
4
of the public at a second neighborhood meeting on March 11, 2009. Input garnered from that
meeting has been processed and incorporated into the final design for the park renovation.
Members of the Public Art Commission also provided input on the location of the artwork to be
included in this project.
This project required a staff level Architectural Review Board (ARB) review. Input from
Planning & Community Environment staff included comments on location and style of some site
furnishings, including bike racks, and on aesthetic screening of the new pump station. A staff
level ARB approval was issued on September 10,2009. These and other issues have since been
addressed in the proposed improvement plan. The revised improvement plan was presented to
the Parks & Recreation Commission at its meeting on July 28,2009. The Commission approved
the plans and recommended that the City Council adopt the Park Improvement Ordinance
pertaining to the proposed project, which Council did by unanimous action at its meeting on
September 21, 2009.
A public meeting was held on November 10, 2009 in conjunction with the Midtown Residents
Association to discuss proposed tree removals associated with the project. The bid documents
show nine trees to be removed in order to accommodate the proposed improvements, and
seventy-four new replacement trees would be planted to implement the base bid landscape plan.
Any revisions that may result from public discourse on the matter would be accommodated
through the change order process after the contract has been awarded.
DISCUSSION
Scope of Improvements
Primary components of the proposed renovation will include development of the vacant Phase
IV area, complete replacement of the park irrigation system, replacement of the children's play
area, miscellaneous improvements to picnic areas, site furnishings and park landscaping. A
pump station and blending tank for reclaimed water serving the park irrigation system is located
on the undeveloped parcel, and its replacement is also included in the main scope of the project.
Alternate bid items to be constructed depending on available budget include improvements to the
dog run, fencing improvements to a softball field that would accommodate temporary dual use as
a dog run, installation of a centralized trash and recycling enclosure, and temporary fencing that
would allow public access to the skate bowl during construction.
Per Council direction (CMR 311 :06), Phase IV will be developed for passive use and will
include a lighted and landscaped perimeter pathway accessing several individual benches, a
picnic area and a small open plaza that will serve as a focal point and gathering area. The
interior of the space will be an undulating turf meadow interspersed with several trees. The new
design for the children's play area will carry a nautical island theme but will retain its existing
footprint. The existing sand will be replaced by resilient rubber surfacing and a smaller sand
play area will be constructed adjacent to the new play apparatus. The existing intemctive
sculpture of a dolphin will remain and be integrated into the hew design.
The irrigation system and pump station have deteriorated significantly over the years and require
an inordinate amount of costly and time consuming remedial maintenance in order to remain
functional. The new distribution system will be constructed with materials better able to
CMR:423:09 Page 2 of5
withstand the corrosive effects of reclaimed water, and the new pump station will be of adequate
size and power to accommodate the demands of the entire park landscape.
Schedule
The projected duration of construction activity is nine months, from December 2009 through
August 2010, during which time the park will remain closed to the public, except for the skate
park. Options for phasing the construction were evaluated and discussed in terms of added costs
and practical benefit to athletic field scheduling~ The options were presented at the second
public meeting and the consensus was that phasing construction would result in greater costs and
no substantial benefit with regard to athletic field accessibility. The proposed project time line
reflects a maximum of 180 calendar days for the completion of all work pertaining to the pump
station and irrigation system, and 270 calendar days for the completion of work pertaining to all
other park amenities. This would allow time for the renovated turf to grow in and become
adequately established for use by recreational leagues upon completion of construction.
Staff has worked with the consultant to explore the feasibility in terms of safety and cost
effectiveness of keeping the skate bowl open during some or all of the construction phase, and an
add alternate bid item accommodating this extra level of accessibility will be incorporated into
the contract.
Bid Process
A notice inviting formal bids for the Greer Park Improvements and Pump Station Replacement
project was posted at City Hall on October 19,2009 and sent to 11 builder's exchanges and 35
general contractors. The bidding period was 21 days, and bids were received from 8 qualified
contractors on November 10, 2009 (see Attachment B for a summary of all bids received on the
project). Base bids ranged from a low of$I,137,100 to a high of$I,551,145.
ummarvo I S fB'dP rocess
Bid NamelNumber IFB # 134205 Greer Park Improvements
Proposed Length of Project 270 days
No. of Bids Mailed to Contractors 35
No. of Bids Mailed to Builder's 11
Exchanges
Total Days to Respond to Bid 22
Pre-Bid Meeting? Yes
Number of Company Attendees at 20
Pre-Bid
Number of Bids Received: 8
Bid Price Range From a low of$I,137,100 to a high of$I,551,145 . "'Detailed bid summary prOVided In Attachment B .
Staff has reviewed both bids submitted and recommends that the bid of$I,137,100, submitted by
Elite Landscaping Incorporated be accepted and that Elite Landscaping Incorporated be declared
the lowest responsible bidder. The bid is 24% below the engineer's estimate of $1,489,662. The
low bids for this project can be attributed to the significantly depressed economic conditions,
which are highly conducive to competitive bidding,
CMR:423:09 Page 3 of5
Four add alternate bid items were included in the project: Add Alternate No.1 includes minor
improvements to the existing dog run; Add Alternate No.2 includes the installation of additional
fencing along the perimeter of one softball field in order to accommodate dual use in the future
as a temporary dog run area; Add Alternate No.3 includes construction of a centrally located
storage area for trash and recycling bins, and Add Alternate No.4 includes installation of
additional temporary fencing to allow continued use of the skate bowl during construction.
Based on funds available for the project, staff recommends awarding add alternate bid items 1
through 4 in the amount of $82,975 for a total contract amount of $1,220,075. The contingency
amount of $122,000, which equals 10% percent of the total contract, is requested to resolve
unforeseen problems and/or conflicts that may arise during the construction period.
Staff checked references supplied by the contractor for previous .work performed and found no
significant complaints. Staff also checked with the Contractor's State License Board and found
that the contractor has an active license on file.
RESOURCE IMPACT
In fiscal year 2007-08 the City Council appropriated $400,000 for CIP Project PE-09002, Greer
Park Phase IV Improvements, arid in fiscal year 2008-09 appropriated an additional $1,450,000
for the replacement of the pump station and irrigation system, and renovation of other existing
park facilities. This $400,000 appropriated for Phase IV is funded from Development Impact
Fees, and the remaining balance of $1,450,000 will come from the Infrastructure Reserve.
POLICY IMPLICATIONS
The proposed Greer Park Improvements project is consistent with existing City policies,
including the master plan for the park.
ENVIRONMENTAL REVIEW
A Negative Declaration was adopted for the Greer Park Master Plan on May 12, 1983. The
Phase IV and related project components are categorically exempt under Section 15301, 15302
and 15304 of the California Environmental Quality Act (CEQA).
ATTACHMENTS
Attachment A: Contract
Attachment B: Bid Summary
PREPARED BY:
DEPARTMENT HEAD:
CMR:423:09
CHRISTOPHER RAFFERTY
Landscape Architect
·If S. dE{iJdf---
Director of Public Works
Page 4 of5
CITY MANAGER APPROVAL:
CMR:423:09
AITACHMENT A
CONSTRUCTION CONTRACT
Contract No. C10134205
City of Palo Alto
and
Elite Landscaping, Inc.
SECTION 1.
CONSTRUCTION CONTRACT
TABLE OF CONTENTS
INCORPORATION OF RECITALS AND DEFINITIONS .................................... 1
'1.1 Recitals ................................................................................................................................ 1
1.2 Definitions ............................................................................................................................ 1
SECTION 2. 'rHE PROJECT ................................................................................................... 1
SECTION 3. THE CONTRACT DOCUMENTS ....................................................................... 1
LIST OF DOCUMENTS .................................................................................................................... 1
3.2 ORDER OF PRECEDENCE ................................................................. ; ............. 2
SECTION 4. 'rHE WORK ........................................................................................................ 2
SECTION 5. PRO .. IECT TEAM ................................................................................................ 2
SECTION 6. TIME OF COMPLETION .................................................................................... 2
6.1 Time Is of Essence .............................................................................................................. 3
6.2 Commencement of Work ................................................................................................... 3
6.3 Contract Time ..................... , ..............•................................................................................ 3
6.4 Liquidated Damages ......... "' ............................... "' ................................ "' ............................... 3
6.4.1 Entitlement. .................................................................................................................. 3
6.4.2 Daily Amount ............................................................................................................... 3
6.4.3 Exclusive Remedy ....................................................................................................... 3
6.4.4 Other Remedies .......................................................................................................... 3
6.5 Adjustments to Contract Time .......................................................................................... 3
SECTION 7. COMPENSATION TO CONTRACTOR .............................................................. 4
7.1 Contract Sum ...................................................................................................................... 4
7.2 Full Compensation ............................................................................................................. 4
7.3 Compensation for Extra or Deleted Work ........................................................................ 4
7.3.1 Self Performed Work .................... , .............................................................................. 4
7.3.2 Subcontractors ............................................................................................................ 4
Construction Contract Rev. October 9. 2009
SECTION 8. STANDARD OF CARE ....................................................................................... 4
SECTION 9. INDEMNIFiCATION ............................................................................................ 5
9.1 Hold Harmless ........................................... , .. " .................................................................... 5
9.2 Survival ...••............................................•........•..........................................•..••.........•........... 5
SECTION 10 NONDISCRIMINATION ...................................................................................... 5
SECTION 11. INSURANCE AND BONDS ................................................................................ 5
SECTION 12. PROHIBITION AGAINST 'rRANSFERS ............................................................ 5
SECTION 13. NOTICES ............................................................................................................... 6
13.1 Method of Notice ................................................................................................................ 6
13.2 Notice Recipients ............................................................................................................... 6
13.3 Change of Address ...•...•...•..•.•••...•.•..••.•.••••....•...............••••••••••••••.•••••.••••••...•...•................. 7
SECTION 14. DISPUTE RESOLUTION ................................................................................... 7
14.1 Resolution of Contract Disputes ...................................................................................... 7
14.2 Resolution of Other Disputes ........................................................................................... 7
14.2.1 Non-Contract Disputes ................................................................................................ 7
14.2.2 Litigation, City Election ................................................................................................. 7
14.3 Submission of Contract Dispute ...................................................................................... 8
14.3.1 By Contractor ............................................................................................................... 8
14.3.2 By City .......................................................................................................................... 8
14.4 Contract Dispute Resolution Process .............................................................................. 8
14.4.1 Direct Negotiations ...................................................................................................... 8
14.4.2 Deferral of Contract Disputes ...................................................................................... 9
14.4.3 Mediation ..................................................................................................................... 9
14.4.4 Binding Arbitration ....................................................................................................... 9
14.5 Non-Waiver ...•...................................•••.•.••.....•.•...................••..••..••.••...........•...•...••••••.••.•.• 10
SECTION 15. DEFAULT ......................................................................................................... 11
15.1 Notice of Default ............................................................................................................... 11
15.2 Opportunity to Cure Default ............................................................................................ 11
SECTION 16. CITY'S RIGHTS AND REMEDIES ................................................................... 11
16.1 Remedies Upon Default ................................................................................................... 11
Construction Contract ii Rev. October 9,2009
16.1.1 Delete Certain Services ............................................................................................. ' 11
16.1.2 Perform and Withhold ................................................................................................ 11
16.1.3 Suspend The Construction Contract ......................................................................... 11
16.1.4 Terminate the Construction Contract for Default.. ..................................................... 11
16.1.5 ' Invoke the Performance Bond ................................................................................... 11
16.1.6 Additional Provisions ................................................................................................. 12
16.2 Delays by Sureties ..•.•...•••• ,1,1 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 11 •••••••••••••••••••••••••••••••• 12
16.3 Damages to City ............................................................................................................... 12
16.3.1 For Contractor's Default ............................................................................................ 12
16.3.2 Compensation for Losses .......................................................................................... 12
16.5 Suspension by City for Convenience ............................................................................. 12
16.6 Termination Without Cause ............................................................................................ 13
16.6.1 Compensation ........................................................................................................... 13
16.6.2 Subcontractors .......................................................................................................... 13
16.7 Contractor's Duties Upon Termination .......................................................................... 13
SECTION 17. CONTRACTOR'S RIGHTS AND REMEDIES .................................................. 14
17.1 Contractor's Remedies •...•......•••.•..•.••.••.••••••..•.••..••.•.•...•..............••....••....•....•...•••••••••..••.. 14
17.1.1 For Work Stoppage ................................................................................................... 14
17.1.2. For City's Non-Payment ............................................................................................. 14
17.2 Damages to Contractor ................................................................................................... 14
SECTION 18. ACCOUNTING RECORDS ............................................................................... 14
18.1 Financial Management and City Access ........................................................................ 14
18.2 Compliance with City Requests ...................................................................................... 14
SECTION 19. INDEPENDENT PAR1·,ES ................................................................................ 14
SECTION 20. NUISANCE .....•....••.......••••..••••.••••••••••••••••••...••..••....••.....••••...••....•••••.• ~!I" ••••••••••••• 15
SECTION 21. PERMITS AND LICENSES .............................................................................. 15
SECTION 22. WAiVER ................•..........••••• , ••• , ••.••••••.........•............. , ..•....•• ,', •••• ,', ••••.•.. ,"" •••••• 15
SECTION 23 GOVERNING LAW ........................................................................................... 15
SECTION 24 COMPLETE AGREEMENT .............................................................................. 15
SECTION 25 SURVIVAL OF CONTRACT ............................................................................. 15
Construction Contract iii Rev. October 9, 2009
SECTION 26
SECTION 27
SECTION 28.
SECTION 29.
Construction Contract
PREVAILING WAGES ...................................................................................... 15
NON APPROPRIATION ................................................................................... 15
GOVERNMENTAL POWERS .......................................................................... 17
SEVERABILITY ................................................................................................ 17
-iv Rev. October 9, 2009
CONSTRUC1'ION CON'rRACT
THIS CONSTRUCTION CONTRACT entered into on ("Execution Date") by and
between the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and ELITE
LANDSCAPING, INC. ("Contractor"), is made with reference to the following:
RE CITALS:
A. City is a municipal corporation duly organized and validly existing under the laws of the
State of California with the power to carry on its business as it is now being conducted under the
statutes of the State of California and the Charter of City.
B. Contractor Is a Corporation duly organized and in good standing in the State of
California, Contractor's License Number 645591. Contractor represents that it is duly licensed by the
State of California and has the background, knowledge, experience and expertise to perform the
obligations set forth in this Construction Contract.
C. On October 19, 2009, City issued an Invitation for Bids (IFB) to contractors for the
Greer Park Renovation And Pump Station Replacement ("Projecf'). In response to the IFB, Contractor
submitted a bid.
D. City and Contractor desire to enter into this Construction Contractforthe Project. and
other services as identified in the Bid Documents for the Project upon the following terms and
conditions.
NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set
forth and for other good and valuable conSideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually agreed by and between the undersigned parties as follows:
SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS.
1.1 Recitals.
All of the. recitals are incorporated herein by reference.
1.2 Definitions.
Capitalized terms shall have the meanings set forth in this Construction Contract anellor in the
General Conditions. If there is a conflict between the definitions in this Construction Contract
and in the General Conditions, the definitions in this Construction Contract shall prevail.
SECTION 2 THE PROJECT.
The Project is the construction of the Greer Park Renovation And Pump Station Replacement
("Project").
SECTION 3 THE CONTRACT DOCUMENTS.
3,1 List of Documents.
The Contract Documents (sometimes collectively referred to as "Agreemenf' or "Bid
Documents") consist of the following documents which are on file with the Purchasing Division
and are hereby incorporated by reference.
1 ) . Change Orders
2) Field Change Orders
3) Contract
4) Project Plans and Drawings
Construction Contract Rev. October 9,2009
5) Technical Specifications
6) Special Provisions
7) Notice Inviting Bids
8) Instructions to Bidders
9) General Conditions
10) Bidding Addenda
11 ) Invitation for Bids
12) Contractor's Bid/Non-Collusion Affidavit
13) Reports listed in the Bidding Documents
14) Public Works Department's Standard Drawings and SpeCifications dated 2007 and
updated from time to time
15) Utilities Department's Water, Gas, Wastewater, Electric Utilities Standards dated
2005 and updated from time to time
16) City of Palo Alto Traffic Control Requirements
17) City of Palo Alto Truck Route Map and Regulations
18) Notice Inviting Pre-Qualification Statements, Pre-Qualification Statement, and Pre-
Qualification Checklist (if applicable)
19) Performance and Payment Bonds
20) Insurance Forms
3.2 Order of Precedence. For the purposes of construing, interpreting and resolving
inconsistencies between and among the provisions of this Contract, the Contract Documents shall
have the order of precedence as set forth in the preceding section. If a claimed inconsistency cannot
be resolved through the order of precedence, the City shall have the sole power to decide which
document or provision shall govern as may be in the best interests of the City.
SECTION 4 THE WORK.
The Work Includes all labor, materials, equipment, services, permits, fees, licenses and taxes, and all
other things necessary for Contractor to perform its obligations and complete the Project, including,
without limitation, any Changes approved by City. in accordance with the Contract Documents and all
Applicable Code Requirements.
SECTION 5 , PROJECT TEAM.
In addition to Contractor, City has retained, or may retain, consultants and contractors to provide
professional and technical consultation for the design and construction of the Project. The Project
requires that Contractor operate efficiently, effectively and cooperatively with City as well as all other
members of the Project Team and other contractors retained by City to construct other portions of the
Project.
SECTION 6 TIME OF COMPLETION.
Construction Contract 2 Rev. October 9, 2009
6.1 Time Is of Essence.
Time is of the essence with respect to all time limits set forth in the Contract Documents.
6.2 Commencement of Work.
Contractor shall commence the Work on the date specified in City's Notice to Proceed.
6.3 Contract Time.
Work hereunder shall begin on the date specified on the City's Notice to Proceed, and shall be
completed within two hundred seventy (270) calendar days after the commencement date
specified in the City's Notice to Proceed. Note -Pump station and irrigation system shall be
installed and fully operational within 180 calendar days after the commencement date
specified in the City's Notice to Proceed; all other park amenities shall be installed and fully
operational within 270 calendar days after the commencement date specified in the City's
Notice to Proceed.
6.4 Liquidated Damages.
6.4.1 Entitlement.
City and Contractor acknowledge and agree that if Contractor fails to fully and
satisfactorily complete the Work within the Contract Time, City will suffer, as a result
of Contractor's failure, substantial damages which are both extremely difficult and
impracticable to ascertain. Such damages may include, but are not limited to:
(i) Loss of public confidence in City and its contractors and consultants.
(Ii) Loss of public use of public facilities.
(Iii) Extended disruption to public.
6.4.2 Dally Amount.
City and Contractor have reasonably endeavored, but failed, to ascertain the actual
damage that City will incur if Contractor fails to achieve Substantial Completion of the
entire Work within the Contract Time. Therefore, the parties agree that in addition to
all other damages to which City may be entitled other than delay damages, in the
event Contractor shall fail to achieve Substantial Completion of the entire Work within
the Contract Time, Contractor shall pay City as liquidated damages the amount of
$500 per day for each Day occurring after the expiration of the Contract Time until
Contractor achieves SUbstantial Completion of the entire Work. The liquidated
damages amount is not a penalty but considered to be a reasonable estimate of the
amount of damages City will suffer by delay in completion of the Work.
6.4.3 Exclusive Remedy.
City and Contractor acknowledge and agree that this liquidated damages provision
shall be City's only remedy for delay damages caused by Contractor's failure to
achieve Substantial Completion of the entire Work within the Contract Time.
6.4.4 Other Remedies.
City is entitled to any and all available legal and equitable remedies City may have
where City's Losses are caused by any reason other than Contractor's failure to
achieve Substantial Completion of the entire Work within the Contract Time.
6.5 Adjustments to Contract Time.
The Contract Time may only be adjusted for time extensions approved by City and agreed to
by Change Order executed by City and Contractor in accordance with the requirements ofthe
Contract Documents.
Construction Contract 3 Rev. October 9,2009
SECTION 7 COMPENSATION TO CONTRACTOR.
7.1 Contract Sum.
Contractor shall be compensated for satisfactory completion of the Work in compliance with
the Contract Documents the Contract Sum of One Million Two Hundred Twenty Thousand
Seventy~Five Dollars ($1.220,075.00). [fhis amount includes the Base Bid and all Add
Alternates.]
7.2 Full Compensation.
The Contract Sum shall be full compensation to Contractor for all Work provided by Contractor
and, except as otherwise expressly permitted by the terms of the Contract Documents, shall
compensate City for all Losses arising out of the nature of the Work or from the acts of the
elements or any unforeseen difficulties or obstructions which may arise or be encountered in
performance of the Work until its Acceptance by City, all risks connected with the Work, and
any and all expenses incurred due to suspension or discontinuance of the Work. The
Contract Sum may only be adjusted for Change Orders Issued, executed and satisfactorily
performed in accordance with the requirements of the Contract Documents.
7.3 Compensation for Extra or Deleted Work.
The Contract Sum shall be adjusted (either by addition or credit) for Changes in the Work
involving Extra Work or Deleted Work on the basis of both of the following:
(i) The sum of Allowable Costs as defined in Paragraph 7.2.5 ofthe General Conditions
to be added (for Extra Work) or credited (for Deleted Work) and
(ii) An additional sum (for Extra Work) or deductive credit (for Deleted Work) based on
Contractor Markup and Subcontractor/Sub-subcontractor Markups allowable pursuant
to this Section.
Contractor Markup and Subcontractor/Sub-subcontractor Markups set forth herein are the full
amount of compensation to be added for Extra Work or to be subtracted for Deleted Work that
is attributable to overhead (direct and indirect) and profit of Contractor and of its
Subcontractors and Sub-subcontractors, of every Tier. Contractor Markup and
Subcontractor/Sub-subcontractor Markups, which shall not be compounded, shall be
computed as follows:
7.3.1 Markup Self-Performed Work.
10% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be
performed by Contractor with its own forces.
7.3.2 Markup for Work Performed by Subcontractors.
15% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be
performed by a first Tier Subcontractor with its own forces, plus 2.5% thereon for
Contractor's Markup.
SECTION 8 STANDARD OF CARE.
Contractor agrees that the Work shall be performed by qualified, experienced and well-supervised
personnel. All services performed in connection with this Construction Contract shall be performed in
a manner consistent with the standard of care under California law applicable to those who specialize
in providing such services for projects of the type, scope and complexity of the Project.
Construction Contract 4 Rev. October 9, 2009
SECTION 9 INDEMNIFICATION.
9.1 Hold Harmless.
To the fullest extent allowed by law, Contractor will defend, indemnify, and hold harmless City,
its City Council, boards and commissions, officers, agents. employees, representatives and
volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel
acceptable to City, from and against any and all Losses arising directly or indirectly from, or in
any manner relating to any of, the following:
(i) Performance or nonperformance of the Work by Contractor or its Subcontractors or
Sub-subcontractors, of any tier;
(ii) Performance or nonperformance by Contractor or its Subcontractors or Sub-
subcontractors of any tier, of any of the obligations under the Contract Documents;
(iii) The construction activities of Contractor or its Subcontractors or Sub-subcontractors,
of any tier, either on the Site or on other properties;
(Iv) The payment or nonpayment by Contractor to any of its employees, Subcontractors or
Sub-subcontractors of any tier, for Work performed on or off the Site for the Project;
and
(v) Any personal injury, property damage or economic loss to third persons associated
with the performance or nonperformance by Contractor or its Subcontractors or Sub-
subcontractors of any tier, of the Work.
However, nothing herein shall obligate Contractor to indemnify any Indemnitee for Losses
resulting from the sole or active negligence or willful misconduct of the Indemnitee. Contractor
shall pay City for any costs City incurs to enforce this provision. Nothing in the Contract
Documents shall be construed to give rise to any implied right of indemnity in favor of
Contractor against City or any other Indemnitee.
9.2 Survival.
The provisions of Section 9 shall survive the termination of this Construction Contract.
SECTION 10 NONDISCRIMINATION.
As set forth in Palo Alto Municipal Code section 2.30.510, Contractor certifies that in the performance
of this Agreement, it shall not discriminate in the employment of any person because of the race, skin
color, gender, age, religion. disability, national origin. ancestry, sexual-orientation, housing status.
marital status, familial status, weight or'height of such person. Contractor acknowledges that it has
read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to
Nondiscrimination Requirements and the penalties for violation thereof, and will comply with all
requirements of Section 2.30.510 pertaining to nondiscrimination in employment. '
SECTION 11 INSURANCE AND BONDS.
On or before the Execution Date, Contractor shall-provide City with evidence that it has obtained
insurance and Performance and Payment Bonds satisfying all requirements in Article 11 of the General
Conditions. Failure to do so shall be deemed a material breach of this Construction Contract.
SECTION 12 PROHIBITION AGAINST TRANSFERS.
City is entering into this Construction Contract based upon the stated experience and qualifications of
the Contractor and its subcontractors set forth in Contractor's Bid. Accordingly, Contractor shall not
assign, hypothecate or transfer this Construction Contract or any interest therein directly or indirectly,
by operation of law or otherwise without the prior written consent of City. Any assignment,
hypothecation or transfer without said consent shall be null and void.
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of
Contractor or of any general partner or Joint venturer or syndicate member of Contractor. if the
Contractor is a partnership or joint venture or syndicate or co-tenancy shall result in changing the
Construction Contract 5 Rev. October 9, 2009
control of Contractor, shall be construed as an assignment of this Construction Contract. Control
means more than fifty percent (50%) of the voting power of the corporation or other entity.
SECTION 13 NOTICES.
13.1 Method of Notice.
All notices, demands, requests or approvals to be given under this Construction Contract shall
be given in writing and shall be deemed served on the earlier of the following:
(i) On the date delivered if delivered personally;
(ii) On the third business day after the deposit thereof in the United States mail, postage
prepaid, and addressed as hereinafter provided;
(iii) On the date sent if sent by facsimile transmission;
(iv) On the date sent if delivered by electronic mail; or
(iv) On the date it is accepted or rejected if sent by certified mail.
13.2 Notice Recipients. .
All notices, demands or requests (including, without limitation, Claims) from Contractor to City
shall include the Project name and the number of this Construction Contract and shall be
addressed to City at:
To City:
Copyto:~
City of Palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
City of Palo Alto
Public Works
Administration
250 Hamilton Avenue
Palo Alto, CA 94301
Attn: Chris Rafferty
Or
D City of Palo Alto
Utilities Engineering
'250 Hamilton Avenue
Palo Alto, CA 94301
Attn:
,In addition, copies of all Claims by Contractor under this Construction Contract shall be
provided to the following:
Palo Alto City Attorney's Office
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, California 94303
Attn.:
All Claims shall be delivered personally or sent by certified mail.
Construction Contract 6 Rev. October 9, 2009
All notices, demands, requests or approvals from City to Contractor shall be addressed to:
Elite Landscaping. Inc.
2972 Larkin Avenue
Clovis. CA 93612
13.3 Change of Address.
In the event of any change of address, the moving party shall notify the other party of the
change of address in writing. Each party may, by written notice only, add, delete or replace
any individuals to whom and addresses to which notice shall be provided.
SEC'rION 14 DISPUTE RESOLUTION.
14.1 Resolution of Contract Disputes.
Contract Disputes shall be resolved by the parties in accordance with the provisions of this
Section 14, in lieu of any and all rights under the law that either party have its rights
adjudged by a trial court or jury. All Contract Disputes shall be subject to the Contract
Dispute Resolution Process set forth in this Section 14, which shall be the exclusive
recourse of Contractor and City for such Contract Disputes.
14.2 Resolution of Other Disputes.
14.2.1 Non-Contract Disputes.
Contract Disputes shall not include any of the following:
(i) Penalties or forfeitures prescribed by statute or regulation imposed by a
governmental agency;
(Ii) Third party tort claims for personal injury, property damage or death relating
to any Work performed by Contractor or its Subcontractors or Sub-
subcontractors of any tier;
(iii) False claims liability under California Government Code Section 1.2650, et.
seq.:
(iv) Defects in the Work first discovered by City after Final Payment by City to
Contractor;
(v) Stop notices; or
(vi) The right of City to specific performance or injunctive relief to compel
performance of any provision of the Contract Documents.
14.2.2 Litigation, City Election.
Matters that do not constitute Contract Disputes shall be resolved byway of an action
filed in the Superior Court of the State of California, County of Santa Clara, and shall
not be subject to the Contract Dispute Resolution Process. However, the City
reserves the right, in its sole and absolute discretion, to treat such disputes as
Contract Disputes. Upon written notice by City of its election as provided in the
preceding sentence, such dispute shall be submitted by the parties and finally decided
pursuant to the Contract Dispute Resolution Process in the manner as required for
Contract Disputes, including, without limitation, City's right under Paragraph 14.4.2 to
defer resolution and final determination until after Final Completion of the Work.
Construction Contract 7 Rev.October9,2009
14.3 Submission of Contract Dispute.
14.3.1 By Contractor.
Contractor's may commence the Contract Dispute Resolution Process upon City's
written response denying all or part of a Claim pursuant to Paragraph 4.2.9 or 4.2.1 0
of the General Conditions. Contractor shall submit a written Statement of Contract
Dispute (as set forth below) to City within seven (7) Days after City rejects all or a
portion of Contractors Claim. Failure by Contractor to submit its Statement of
Contract Dispute in a timely manner shall result in City's decision by City on the Claim
becoming final and binding. Contractor's Statement of Contract Dispute shall be
signed under penalty of perjury and shall state with specificity the events or
circumstances giving rise to the Contract Dispute, the dates of their occurrence and
the asserted effect on the Contract Sum and the Contract Time. The Statement of
Contract Dispute shall include adequate supporting data to substantiate the disputed
Claim. Adequate supporting" data for a Contract Dispute relating to an adjustment of
the Contract Time shall include both of the following:
(i) All of the scheduling data requir~d to be submitted by Contractor under the
Contract Documents to obtain extensions of time and adjustments to the
Contract Time and
(ii) A detailed, event-by-event description of the impact of each event on
completion of Work. Adequate data to support a Statement of Contract
Dispute involving an adjustment of the Contract Sum must include both of the
following:
(a) A detailed cost breakdown and
(b) Supporting cost data in such form and including such information and
other supporting data as required under the Contract Documents for
submission of Change Order Requests and Claims.
14.3.2 By City.
City's right to commence the Contract Dispute Resolution Process shall arise at any
time following City's actual discovery of the circumstances giving rise to the Contract
Dispute. City asserts Contract Disputes in response to a Contract Dispute asserted
by Contractor. A Statement of Contract Dispute submitted by City shall state the
events or circumstances giving rise to the Contract Dispute, the dates of their
occurrence and the damages or other relief claimed by City as a result of such
events.
14.4 Contract Dispute Resolution Process.
The parties shall utilize each of the following steps in the Contract Dispute Resolution
Process in the sequence they appear below. Each party shall participate fully and in
good faith in each step in the Contract Dispute Resolution Process, and good faith
effort shall be a condition precedent to the right of each party to proceed to the next
step in the process.
14.4.1 Direct Negotiations.
Designated representatives of City and Contractor shall meet as soon as possible
(but not later than ten (10) Days after receipt of the Statement of Contract Dispute) in
a good faith effort to negotiate a resolution to the Contract Dispute. Each party shall
be represented in such negotiations by an authorized representative with full
knowledge of the details of the Claims or defenses being asserted by such party in
the negotiations, and with full authority to resolve such Contract Dispute then and
there, subject only to City's obligation to obtain administrative and/or City CounCil
approval of any agreed settlement or resolution. If the Contract Dispute involves the
assertion of a right or claim by a Subcontractor or Sub-subcontractor, of any tier,
against Contractor that is in tum being asserted by Contractor against City ("Pass-
Through Claim"), then the Subcontractor or Sub-Subcontractor shall also have a
Construction Contract 8 Rev. October 9.2009
representative attend the negotiations, with the same authority and knowledge as
described above. Upon completion of the meeting, if the Contract Dispute is not
resolved, the parties may either continue the negotiations or any party may declare
negotiations ended. All discussions that occur during such negotiations and all
documents prepared solely for the purpose of such negotiations shall be confidential
and privileged pursuant to California Evidence Code Sections 1119 and 1152.
14.4.2 Deferral of Contract Disputes.
Following the completion of the negotiations required by Paragraph 14.4.1, all
unresolved Contract Disputes shall be deferred pending Final Completion of the
Project, subject to City's right, in its sole and absolute discretion, to require that the
Contract Dispute Resolution Process proceed prior to Final Completion. All Contract
Disputes that have been deferred until Final Completion shall be consolidated within a
reasonable time after Final Completion and thereafter pursued to resolution pursuant
to this Contract Dispute Resolution Process. The parties can continue informal
negotiations of Contract Disputes; provided, however, that such informal negotiations
shall not be alter the provisions of the Agreement deferring final determination and
resolution of unresolved Contract Disputes Until after Final Completion.
14.4.3 Mediation.
If the Contract Dispute remains unresolved after negotiaHons pursuant to Paragraph
14.4.1, the parties shall submit the Contract Dispute to non-binding mediation before
a mutually acceptable third party mediator .
. 1 Qualifications of Mediator. The parties shall endeavor to select a mediator
who is a retired judge or an attorney with at least five (5) years of experience
in public works construction contract law and in mediating public works
construction disputes. In addition, the mediator shall have at least twenty
(20) hours of formal training in mediation skills .
• 2 Submission to Mediation and Selection of Mediator. The party initiating
mediation of a Contract Dispute shall provide written notice to the other party
of its decision to mediate. In the event the parties are unable to agree upon a
mediator within fifteen (15) Days after the receipt of such written notice, then
the parties shall submit the matter to the American Arbitration Association
(AAA) at its San Francisco Regional Office for selection of a mediator in
accordance with the AAA Construction Industry Mediation Rules .
• 3 Mediation Process. The location of the mediation shall be at the offices of
City. The costs of mediation shall be shared equally by both parties. The
mediator shall provide an independent assessment on the merits of the
Contract Dispute and recommendations for resolution. All discussions that
occur during the mediation and all documents prepared solely for the
purpose of the mediation shall be confidential and privileged pursuant to
California Evidence Code Sections 1119 and 1152.
14.4.4 Binding Arbitration.
If the Contract Dispute is not resolved by mediation, then any party may submit the
Contract Dispute for final and binding arbitration pursuant to the provisions of
California Public Contract Code Sections 10240, et seq. The award of the arbitrator
therein shall be final and may be entered as a judgment by any court of competent
jurisdiction. Such arbitration shall Qe conducted in accordance with the following:
.1 Arbitration Initiation. The arbitration shall be initiated by filing a complaint
in arbitration in accordance with the regulations promulgated pursuant to
California Public Contract Code Section 10240.5.
Construction Contract 9 Rev. October 9.2009
.2 Qualifications of the Arbitrator. The arbitrator shall be approved by all
parties. The arbitrator shall be a retired judge or an attorney with at least five
(5) years of experience in public works construction contract law and in
arbitrating public works construction disputes. In addition, the arbitrator shall
have at least twenty (20) hours of formal training in arbitration skills. In the
event the parties cannot agree upon an arbitrator. the provisions of Califomia
Public Contract Code Section 10240.3 shall be followed in selecting an
arbitrator possessing the qualifications required herein .
• 3 Hearing Days and Location. Arbitration hearings shall be held at the offices
of City and shall, except for good cause shown to and determined by the
arbitrator, be conducted on consecutive business days, without interruption or
continuance .
• 4 Hearing Delays. Arbitration hearings shall not be delayed except upon good
cause shown .
. 5 Recording Hearings. All hearings to receive evidence shall be recorded by
a certified stenographic reporter. with the costs thereof borne equally by City
and Contractor and allocated by the arbitrator in the final award .
. 6 Limitation of Depositions. The parties may conduct discovery in
accordance with the provisions of section 10240.11 of the Public Contract
Code; provided. however. that depositions shall be limited to both of the
following:
(i) Ten (10) percipient witnesses for each party and 5 expert witnesses
per party.
Upon a showing of good cause, the arbitrator may increase the number of
permitted depositions. An individual who is both percipient and expert shall,
for purposes of applying the foregoing numerical limitation only, be deemed
an expert. Expert reports shall be exchanged prior to receipt of evidence, in
accordance with the direction of the arbitrator, and expert reports (including
initial and rebuttal reports) not so submitted shall not be admissible as
evidence
.7 Authority of the Arbitrator. The arbitrator shall have the authority to hear
dispositive motions and issue interim orders and interim or executory awards .
• 8 Waiver of Jury Trial. Contractor and City each voluntarily waives its right to
a jury trial with respect to any Contract Dispute that is subject to binding
arbitration in accordance with the provisions of this Paragraph 14.4.4.
Contractor shall include this provision in its contracts with its Subcontractors
who provide any portion of the Work.
14.5 Non-Waiver.
Participation in the Contract Dispute Resolution Process shall not waive, release or
compromise any defense of City, including, without limitation, any defense based on the
assertion that the rights or Claims of Contractor that are the basis of a Contract Dispute were
previously waived by Contractor due to Contractor's failure to comply with the Contract
Documents, including, without limitation, Contractor's failure to comply with any time periods
for providing notice of requests for adjustments of the Contract Sum or Contract Time or for
submission of Claims or supporting documentation of Claims.
Construction Contract 10 Rev. October 9,2009
SECTION 15 DEFAULT.
15.1 Notice of Default.
In the event that City determines, in its sole discretion, that Contractor has failed or refused to
. perform any of the obligations set forth in the Contract Documents, or is in breach of any
provision of the Contract Documents, City may give written notice of default to Contractor in
the manner specified for the giving of notices in the Construction Contract.
15.2 Opportunity to Cure Default.
Except for emergencies, Contractor shall cure any default in performance of its obligations
under the Contract Documents within two (2) Days (or such shorter time as City may
reasonably require) after receipt of written notice. However, if the breach cannot be
reasonably cured within such time, Contractor will commence to cure the breach within two (2)
Days (or such shorter time as City may reasonably require) and will diligently and continuously
prosecute such cure to completion within a reasonable time, which shall in no event be later
than ten (10) Days after receipt of such written notice.
SECTION 16 CITY'S RIGHTS AND REMEDIES.
16.1 Remedies Upon Default.
If Contractor fails to cure any default of this Construction Contract within the time period set
forth above in Section 15, then City may pursue any remedies available under law or equity,
including, without limitation, the following:
16.1.1 Delete Certain Services.
City may, without terminating the Construction Contract, delete certain portions of the
Work, reserving to itself all rights to Losses related thereto.
16.1.2 Perform and Withhold.
City may, without terminating the Construction Contract, engage others to perform the
Work or portion of the Work that has not been adequately performed by Contractor
and withhold the cost thereof to City from future payments to Contractor, reserving to
itself all rights to Losses related thereto.
16.1.3 Suspend The Construction Contract.
City may, without terminating the Construction Contract and reserving to itself all
rights to Losses related thereto, suspend all or any portion of this Construction
Contract for as long a period of time as City determines, in its sole discretion,
appropriate, in which event City shall have no obligation to adjust the Contract Sum or
Contract Time, and shall have no liability to Contractor for damages if City directs
Contractor to resume Work.
16.1.4 Terminate the Construction Contract for Default.
City shall have the right to terminate this Construction Contract, in whole or in part,
upon the failure of Contractor to promptly cure any default as required by Section 15.
City's election to terminate the Construction Contract for default shall be
communicated by giving Contractor a written notice of termination in the manner
specified for the giving of notices in the Construction Contract. Any notice of
termination given to Contractor by City shall be effective immediately, unless
otherwise provided therein.
16.1.5 Invoke the Performance Bond.
City may, with or without terminating the Construction Contract and reserving to itself
all rights to Losses related thereto, exercise its rights under the Performance Bond.
Construction Contract 11 Rev.Ocwber9,2009
16.1.6 Additional Provisions.
All of City's rights and remedies under this Construction Contract are cumulative, and
shall be in addition to those rights and remedies available in law or in equity.
Designation in the Contract Documents of certain breaches as material shall not
waive the City's authority to designate other breaches as material nor limit City's right
to terminate the Construction Contract, or prevent the City from terminating the
Agreement for breaches that are not material. City's determination of whether there
has been noncompliance with the Construction Contract so as to warrant exercise by
City of its rights and remedies for default under the Construction Contract, shall be
binding on all parties. No termination or action taken by City after such termination
shall prejudice any other rights or remedies of City provided by law or equity or by the
Contract Documents upon such termination; and City may proceed against Contractor
to recover all liquidated damages and Losses suffered by City.
16.2 Delays by Sureties.
Without limiting to any of City's other rights or remedies, City has the right to suspend the
performance of the Work by Contractor's sureties in the event of any of the following:
(i) The sureties' failure to begin Work within a reasonable time in such manner as to
insure full compliance with the Construction Contract within the Contract Time;
(ii) The sureties' abandonment of the Work;
(iii) If at any time City is of the opinion the sureties' Work is unnecessarily or
unreasonably delaying the Work;
(iv) The sureties' violation of any terms of the Construction Contract;
(v) The sureties' failure to perform according to the Contract Documents; or
(vi) The sureties' failure to follow City's instructions for completion of the Work within the
Contract Time.
16.3 Damages to City.
16.3.1 For Contractor's Default.
City will be entitled to recovery of all Losses under law or equity in the event of
Contractor's default under the Contract Documents.
16.3.2 Compensation for Losses.
In the event that City's Losses arise from Contractor's default under the Contract
Documents, City shall be entitled to withhold monies otherwise payable to Contractor
until Final Completion of the Project. If City incurs Losses due to Contractor's default,
then the amount of Losses shall be deducted from the amounts withheld. Should the
amount withheld exceed the amount deducted, the balance will be paid to Contractor
or its designee upon Final Completion of the Project. If the Losses incurred by City
exceed the amount withheld, Contractor shall be liable to City for the difference and
shall promptly remit same to City.
16.4 Suspension by City for Convenience.
City may. at any time and from time to time. without cause. order Contractor. in writing. to
suspend. delay. or interrupt the Work in whole or in part for such period of time. up to an
aggregate of fifty percent (50%) of the Contract Time. The order shall be specifically identified
as a Suspension Order by City. Upon receipt of a Suspension Order. Contractor shall, at
City's expense, comply with the order and take all reasonable steps to minimize costs
allocable to the Work covered by the Suspension Order. During the Suspension or extension
of the Suspension. if any, City shall either cancel the Suspension Order or. by Change Order,
delete the Work covered by the Suspension Order. If a Suspension Order is canceled or
expires. Contractor shall resume and continue with the Work. A Change Order will be issued
to cover any adjustments of the Contract Sum or the Contract Time necessarily caused by
such suspension. A Suspension Order shall not be the exclusive method for City to stop the
Work.
Construction Contract 12 Rev. October 9, 2009
16.5 Termination Without Cause.
City may, at its sole discretion and without cause, terminate this Construction Contract in part
or in whole by giving thirty (30) Days written notice to Contractor. The compensation allowed
under this Paragraph 16.5 shall be the Contractor's sole and exclusive compensation for such
termination and Contractor waives any claim for other compensation or losses, including, but
not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other
consequential, direct, indirect or incidental damages of any kind resulting from termination
without cause.
16.5.1 Compensation.
Following such termination and within forty-five (45) Days after receipt of a billing from
Contractor seeking payment of sums authorized by this Paragraph 16.5, City shall pay
the following to Contractor as Contractor's sole compensation for performance of the
Work:
.1 For Work Performed. The amount of the Contract Sum allocable to the
portion of the Work properly performed by Contractor as of the date of
termination, less sums previously paid to Contractor .
• 2 For CloseoOut Costs. Reasonable costs of Contractor and its
Subcontractors and Sub-subcontractors for:
(i) Demobilizing and
(ii) Administering the close-out of Its participation in the Project
(including, without limitation, all billing and accounting functions, not
including attorney or expert fees) for a period of no longer than thirty
(30) Days after receipt of the notice of termination •
• 3 For Fabricated Items. Previously unpaid cost of any items delivered to the
Project Site which were fabricated for subsequent incorporation in the Work.
16.5.2 Subcontractors.
Contractor shall include provisions in all of its subcontracts, purchase orders and
other contracts permitting termination for convenience by Contractor on terms that are
consistent with this Construction Contract and that afford no greater rights of recovery
against Contractor than are afforded to Contractor against City under this Section.
16.6 Contractor's Duties Upon Termination.
Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless
the notice directs otherwise, do the following:
(i) Immediately discontinue the Work to the extent specified In the notice;
(ii) Place no further orders or subcontracts for materials, equipment, services or facilities,
except as may be necessary for completion of such portion of the Work that Is not
discontinued;
(iii) Provide to City a description, in writing no later than fifteen (15) days after receipt of
the notice of termination, of all subcontracts, purchase orders and contracts that are
outstanding, including, without limitation, the terms of the original price, any changes,
payments, balance owing, the status of the portion of the Work covered and a copy of
the subcontract, purchase order or contract and any written changes, amendments or
modifications thereto, together with such other information as City may determine
necessary in order to decide whether to accept assignment of or request Contractor
to terminate the subcontract. purchase order or contract;
(iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions
thereof, that City elects to accept by assignment and cancel, on the most favorable
terms reasonably possible, all subcontracts, purchase orders or contracts, or portions
thereof, that City does not elect to accept by assignment; and
(v) Thereafter do only such Work as may be necessary to preserve and protect Work
already in progress and to protect materials, plants, and equipment on the Project
Site or in transit thereto.
Construction Contract 13 Rev. October 9,2009
SECTION 17 CONTRACTOR'S RIGHTS AND REMEDIES.
17.1 Contractor's Remedies.
Contractor may terminate this Construction Contract only upon the occurrence of one of the
following:
17.1.1 For Work Stoppage.
The Work is stopped for ~ixty (60) consecutive Days, through no act or fault of
Contractor, any Subcontractor, or any employee or agent of Contractor or any
Subcontractor, due to issuance of an order of a court or other public authority other
than City having jurisdiction or due to an act of govemment, such as a declaration of a
national emergency making material unavailable. This provision shall not apply to any
work stoppage resulting from the City's issuance of a suspension notice Issued either
for cause or for convenience.
17.1.2 For City's Non-Payment.
If City does not make pay Contractor undisputed sums within ninety (90) Days after
receipt of notice from Contractor, Contractor may terminate the Construction Contract
(30) days following a second notice to City of Contractor's intention to terminate the
Construction Contract.
17.2 Damages to Contractor.
In the event of termination for cause by Contractor, City shall pay Contractor the sums
provided for in Paragraph 16.5.1 above. Contractor agrees to accept such sums as its sole
and exclusive compensation and agrees to waive any claim for other compensation or Losses,
including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity. or
other consequential, direct, indirect and incidental damages, of any kind.
SECTION 18 ACCOUNTING RECORDS.
18.1 Financial Management and City Access.
Contractor shall keep full and detailed accounts and exercise such Controls as may be
necessary for proper financial management under this Construction Contract in accordance
with generally accepted accounting principles and practices. City and City's accountants
during normal business hours, may inspect, audit and copy Contractor's records, books,
estimates, take-ofts, cost reports, ledgers, schedules, correspondence, instructions, drawings,
receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this
Project. Contractor shall retain these documents for a period of three (3) years after the later
of (I) final payment or (iI) final resolution of all Contract Disputes and other disputes, or (iii) for
such longer period as may be required by law.
18.2 Compliance with City Requests.
Contractor's compliance with any request by City pursuant to this Section 18 shall be a
condition precedent to filing or maintenance of any legal action or proceeding by Contractor
against City and to Contractor's right to receive further payments under the Contract
Documents. City many enforce Contractor's obligation to provide access to City of its
business and other records referred to in Section 18.1 for inspection or copying by issuance
of a writ or a proviSional or permanent mandatory injunction by a court of competent
jurisdiction based on affidavits submitted to such court. without the necessity of oral testimony.
SECTION 19 INDEPENDENT PARTIES.
Each party is acting in its independent capacity and not as agents, employees, partners, or joint
venturers of the other party. City, its officers or employees shall have no control over the conduct of
Contractor or its respective agents, employees, subconsultants, or subcontractors, except as herein
set forth.
Construction Contract 14 Rev. October 9.2009
SECTION 20 NUISANCE.
Contractor shall not maintain, commit, nor permit the maintenance or commission of any nuisance in
connection in the performance of services under this Construction Contract.
SECTION 21 PERMITS AND LICENSES.
Except as otherwise provided in the Special Provisions and Technical Specifications, The Contractor
shall provide, procure and pay for all licenses, permits, and fees, required by the City or other
government jurisdictions or agencies necessary to carry out and complete the Work. Payment of all
costs and expenses for such licenses, perm its, and fees shall be included in one or more Bid items. No
other compensation shall be paid to the Contractor for these items or for delays caused by non-City
inspectors or conditions set forth in the licenses or permits issued by other agencies.
SECTION 22 WAIVER.
A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be
deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or
condition contained herein, whether of the same or a different character.
SECTION 23 GOVERNING LAW.
This Construction Contract shall be construed in accordance with and governed by the laws of the
State of California.
SECTION 24 COMPLETE AGREEMENT.
This Agreement represents the entire and integrated agreement between the parties and supersedes
all prior negotiations, representations, and contracts, either written or oral. This Agreement may be
amended only by a written instrument, which is signed by the parties.
SECTION 25 SURVIVAL OF CONTRACT.
The provisions of the Construction Contract which by their nature survive termination of the
Construction Contract or Final Completion, including. without limitation, all warranties, indemnities,
payment obligations, and City's right to audit Contractor's books and records,shall remain in full force
and effect after Final Completion or any termination of the Construction Contract.
SECTION 26 PREVAILING WAGES.
This Project is not subject to prevailing wages. The Contractor is not required to pay prevailing wages
in the performance and implementation of the Project, because the City, pursuant to its authority as a
chartered city, has adopted Resolution No. 5981 exempting the City from prevailing wages. The City
invokes the exemption from the state prevailing wage requirement for this Project and declares that the
Project is funded one hundred percent (100%) by the City of Palo Alto.
SECTION 27 NON APPROPRIATION.
This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo
Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year
in the event that the City does not appropriate funds for the following fiscal year for this event, or (b) at
any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year
and funds for this Construction Contract are no longer available. This section shall take precedence in
the event of a conflict with any other covenant, term, condition, or provision of this Agreement.
Construction Contract 15 Rev. October 9, 2009
SECTION 28 AUTHORITY.
The individuals executing this Agreement represent and warrant that they have the legal capacity
and authority to do so on behalf of their respective legal entities.
SECTION 29 SEVERABILITY. .
In case a provision of this Construction Contract is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not be affected.
IN WITNESS WHEREOF, the parties have caused this Construction Contract to be executed
the date and year first above written.
CITY OF PALO ALTO
D Purchasing Manager
IZI City Manager
APPROVED AS TO FORM:
City Attorney
APPROVED:
Public Works Director
Construction Contract 17
CONTRACTOR:
ELITE LANDSCAPING, INC.
By: ____________ _
Name: ---------------------------
Title: ____________ _
Rev. October 9, 2009
TACBMENTB
ITEM DESCRIPTION
Over/Under -Base -(0.24) -(0.23) -(0.22) -(0.21) -(0.21) -(0.15) -(0.12)
1 IAdd Alt. 1 -Dog Run Improvements 41,172 22,955 19,340 22,300 22,600 21,800 23,400 39,n5
Base Bid + 1 1,530,834 1,160,055 1,165,340 1,189,000 1,193,300 1.202,700 1,288,400 1.345.875
Alt. 2 -Softball Field Retrofit 78,126 28,450 41,833 30,550 38,250 38,700 42,600 64,500
Base Bid + 1,2 1,608,960 1,188,505 1,207,173 1,219,550 1,231,550 1,241,400 1,331,000 1,410,375
All. 3 -Trash & Recycling Enclosur 48,658 28,570 32,000 23,900 34,550 24,600 30,700 49,125
Base Bid + 1,2,3 1,657,618 1,217,075 1,239,173 1,243,450 1,266,100 1,266,000 1,361,700 1,459,500
4 IAdd A1t. 4 -Public Access Fencing 5,103 3,000
Base Bid + 1. 2. 3. 4 1.662.721 1,220,075
Page 1 BID SUMMARY.xls