HomeMy WebLinkAboutStaff Report 447-09TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: COMMUNITY SERVICES
DATE: DECEMBER 7, 2009 CMR: 447:09 8
REPORT TYPE: CONSENT
SUBJECT: Approval of an Agreement With the Friends of the Palo Alto Junior Museum
and Zoo for the Design and Construction of Bobcat Facilities and Other
Capital Improvements at the Palo Alto Junior Museum and Zoo
RECOMMENDATION
Staff recommends that the Council approve an Agreement for the design and construction of the
Bobcat Facilities and Other Capital Improvements at the Palo Alto Junior Museum and Zoo.
BACKGROUND
The Friends of the Palo Alto Junior Museum and Zoo (Friends) have played an integral role in
the support and operation of the Palo Alto Junior Museum and Zoo (JMZ) since their inception
in 1962. (Note that from 1900 through 1962 the group was called the Junior Museum and Zoo
Associates.) In 2002, the Friends approached the City of Palo Alto to create a public-private
partnership with the intent to raise the capital funds required to renovate the JMZ facility. The
Friends have continued to be an active advocate and support organization for the JMZ's mission.
In February 2007, a Council Colleagues Memo from then Vice-Mayor Klein and Council
members Beecham and Mossar requested that staff work with the Friends to explore the
possibility of a new public-nonprofit partnership that would strengthen the ties between the City
and the Friends and that the outcome of any partnership agreement would be contingent on the
completion of a revised public/private partnership policy. That revised policy was approved by
the Council in June 2007. Staff then worked with representatives of the Friends' Board of
Directors and with Rick Smith, a nonprofit sector management consultant hired by the Friends,
to develop a concept for the proposed public/nonprofit partnership. In November 2007, the
Council approved a Mutual Cooperation and Support Agreement with the Friends of the Palo
Alto Junior Museum and Zoo (Partnership Agreement).
The Partnership Agreement provides the Friends with greater opportunity to play a role in
program planning, be more engaged in the decision-making process, and grants a nonexclusive
license to use the JMZ facilities for the benefit of the JMZ. The Friends also provide outside
funding for increased or enhanced JMZ programs and capital improvements. The responsibility
of the parties in regard to any capital improvement projects (CIPs) for the JMZ was not
CMR: 447:09 Page 1 of4
established by the partnership agreement and the parties agreed to reserve for future
consideration any capital project by amendment or by separate instrument.
In January 2008, the Friends entered into contract for the design of a new bobcat exhibit with
Studio Hanson Roberts, an international zoo design firm and, to date, have completed
construction documents. Simultaneously, the Friends issued a Request For Proposal for
construction services in December 2008, and completed the selection process for a construction
contractor for the exhibit. By prequalifying a contractor who agreed to assist with cost
estimating, the Friends ensured accurate cost estimates for the project during design.
The design team included JMZ staff and Friends board members. The design process began with
defining the goals of the project, which included creating an enriching, living landscape for the
cats and the context of nature for visiting children, creating a facility that would enable modem
animal management practices, and staying within the allocated budget of $450,000 from the
Friend's capital campaign.
The Bobcat Ridge Exhibit will be constructed by the Friends using private dollars. Design is
complete and $450,000 of funding was in place by June 30, 2009.
The exhibit is approximately 1,000 square feet (SF), of which 800 SF are a landscaped habitat
with a waterfall and pool for the cats covered with a protective stainless steel net. There is a
view area with tempered laminated glass for nose to nose viewing, and behind-the-scenes
management enclosures to facilitate veterinary care, animal introductions, and off-exhibit rest for
the cats. The construction duration of the Bobcat Ridge is estimated to be four months. The
contractor will be provided access through Rinconada Park so that the Zoo may remain open.
On July 28, 2009, the Parks and Recreation Commission reviewed conceptual design plans for
the new bobcat exhibit. Comments and questions from the public were also received at the
Commission meeting. On October 26, 2009, the Junior Museum & Zoo sponsored a public
meeting to gather comments and suggestions and to answer questions from neighbors and
interested parties. No member of the public attended the meeting. A model of the exhibit was
on display in the museum from June through November 2009. At their October 27,2009 regular
meeting, the Parks and Recreation Commission voted unanimously to recommend to Council the
approval ofthe proposed Park Improvement Ordinance for the project.
On November 16, 2009, the Council approved a Park Improvement Ordinance for the
construction of the new bobcat facilities and other improvements at the Junior Museum and Zoo.
The second reading of the ordinance will occur at the December 7, 2009 Council meeting. Since
the approval of the Park Improvement Ordinance, staff has worked with the Friends to develop
an agreement to provide right of entry and exclusive access to that portion of the park for the
purposes of construction of the new bobcat facilities by the Friends. The agreement specifies
policy and procedural guidelines for the Friends to follow regarding construction, safety,
liability, and payment details.
DISCUSSION
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The agreement with the Friends of the JMZ includes the following specific provisions (in
addition to other standard City contract terms and conditions):
1) Gran~s the Friends temporary access to the Site during the Term in order that the
Friends may constrw;t and install Bobcat Ridge (Facilities);
2) Provides for the preparation by Friends, and the review and approval by the City, of
plans, specifications and working drawings for the Facilities;
3) Provides for the Friends' completion of construction and installation of the Facilities
and the City's approval and acceptance of those Facilities;
4) Provides for the transfer of possession of the Site and all rights, title and interest in
the Facilities to the City upon the completion of construction and installation of the
Facilities;
5) Defrays the direct cost of design and construction to the Friends who have obtained
contributions from the community for the expenses of the design, construction and
installation of the Facilities and it assures that funding is in place to finish the project
by requiring the Friends to establish a "Bobcat Ridge Fund" account within a
commercial bank and designate the City as a joint owner otherwise has the rights as a
joint owner of the account;
6) Assures that the Friends, when employing services, shall be obtained by means of an
informal competitive selection process conducted by the Friends;
7) Allows the City to waive the obligation of the Friends to pay any and all permit-and
permit-related fees and charges that are due and payable to the City'S general fund
with respect to its design, construction and installation of the Facilities at the Site and
any other related work in connection therewith; provided. However, the City will not
waive the obligation of the Friends to pay any fee or charge that is due and payable to
any of the City's enterprise funds for utility services and utility-related service
charges that are rendered to the Friends at the Site or the Park;
8) Allows the Friends to commence design, construction and installation within thirty
(30) days after the effective date of the contract and for a term of one (1) year;
9) Requires a community outreach program to provide information to the Park's
neighborhood concerning the Facilities for the purpose of soliciting the input and
support for the Facilities;
10)Requires that the Friends indemnify the City for claims caused by its negligent acts,
errors, or omissions, or willful misconduct, in the performance of or failure; and
11) Requires that the Friends maintain books and records relating to the construction of
the Project during the Term and for three (3) years thereafter and provides the city
access to these records.
RESOURCE IMPACT
Funds for this project are included in Capital Improvement Program Project -AC-l 0000 (Junior
Museum and Zoo (JMZ) New Bobcat Habitat). Funds were derived from three sources. The
Friends have committed to fund the construction and have secured $450,000 to cover design and
construction of Bobcat Ridge. Funding of $55,000 has been reserved in a CSD donation account
for the perimeter fencing contract. Funding of $70,000 had been previously budgeted in the
Infrastructure Reserve for the resurfacing of the Zoo pathways.
CMR: 447:09 Page 3 of4
NEXT STEPS
Once the agreement is approved by the Council and signed, and all requirements are met, the
Friends will commence construction activities. Based on the date of adoption of the Park
Improvement Ordinance (December 7, 2009), staff anticipates that construction will begin
around January 7, 2010 and will conclude in late May 2010.
The fencing and paving portions of the project will be bid as informal contracts by the City of
Palo Alto. Work on these portions of the project will be coordinated with the work on the
Bobcat Ridge project.
POLICY IMPLICATIONS
The proposed projects are consistent with existing City policy, including C-17: Continue to
support provisions, funding, and promotion of programs for children and youth; and C-26:
Maintain and enhance existing park facilities.
ENVIRONMENTAL REVIEW
The Planning Department has reviewed the project and has determined that it is categorically
exempt under Section 15301 [existing facilities] ofCEQA.
ATTACHMENTS
Attachment A: Agreement
PREPAREDBY: ______ ~~~~~~~~~~~~--------------
John Aikin
Director, Junior Museum & Zoo
DIVISION MANAGER: __ -"bt=:::::=-=::::::====~~ ___ V~· ~ ____________ _
Kelly Morariu
DEPARTMENT HEAD:
~ Science Division Manager
~
Interim Director of Community Services
CITY MANAGER APPROVAL: ____ ~~...___'lL.....:-""!O""-~'____+=~!:.....---
CMR: 447:09 Page 4 of4
Attachment A
Contract No. -------
AGREEMENT BETWEEN THE CITY OF PALO ALTO AND
THE FRIENDS OF THE PALO ALTO JUNIOR MUSEUM & ZOO
FOR THE DESIGN AND CONSTRUCTION OF BOBCAT
FACILITIES AND OTHER CAPITAL IMPROVEMENTS AT THE
PALO ALTO JUNIOR MUSEUM & ZOO
Dated as of ____ , 2009
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TABLE OF CONTENTS
Section Description Page
1 Purposes 5
2 Tenn 5 I
3 Use; Access to the Site and Facilities 6
4 Consideration 6
5 Plans for Design of Improvements 8
6 Construction and Completion of Improvements 8
7 Maintenance and Repairs 10
8 As-Built Drawings 10
9 Ownership of Facilities and Improvements 10
10 Utility Service 11
11 Insurance 11
12 Indemnity 13
13 Waiver 13
14 Assignment 13
15 Nondiscrimination 14
16 Force Majeure 14
17 Audit; Inspection of Records 14
18 Independent Contractor 15
19 Representations and Warranties 15
20 Event of Default; Remedies for Default 15
21 Notices 16
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22
23
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
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Dispute Resolution
Miscellaneous Provisions
Description of the Site and Facilities
Installation Schedule and Conditions Precedent to Construction
Itemized Budget
Insurance Requirements
Certification of Nondiscrimination
Quitclaim Deed
17
18
AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE FRIENDS
OF THE PALO ALTO JUNIOR MUSEUM & ZOO FOR THE DESIGN AND
CONSTRUCTION OF BOBCAT FACILITIES AND OTHER CAPITAL
IMPROVEMENTS AT THE PALO ALTO JUNIOR MUSEUM & ZOO
This Agreement for the Design and Construction of Bobcat Facilities and
Other Capital Improvements at the Palo Alto Junior Museum & Zoo (the "Agreement"),
dated, for convenience, , 2009 (the "Effective Date"), is made and
entered into by and between the CITY OF PALO ALTO, a California chartered
municipal corporation (the "CITY") and the FRIENDS OF THE PALO ALTO JUNIOR
MUSEUM & ZOO, a corporation organized under the Nonprofit Public Benefit
COlporation Law of the State of California (the "FRIENDS") (individually, a "Party"
and, collectively, the "Parties"), in reference to the following facts and circumstances:
RECITALS:
A, The CITY is the owner of the Palo Alto Junior Museum & Zoo, a 9,000 square
feet museum, and a 10,000 square feet zoo, located at 1451 Middlefield Road,
Palo Alto, California. The Museum & Zoo is located within Rinconada Park (the
"Park").
B. The FRIENDS intends to benefit the CITY and the general public by, directly or
indirectly, designing, constructing and installing on approximately 1,000 square
feet of the southeasterly quadrant of the Zoo (the "Site") certain animal enclosures
and equipment and other structures, including, but not limited to, the creation of a
bobcat. habitat, support enclosures, and placement of equipment and other
structures, a below ground level drainage system, retaining walls, stainless steel
netted enclosure,caging, paving, arbors and landscaping, and fencing (the
"Facilities"). The description of the Site and Facilities is described in Exhibit A.
An installation schedule and conditions precedent for construction of the Facilities
is set forth in Exhibit B.
C. The FRIENDS will design, construct and install the Facilities at its sole cost and
expense. The CITY will not grant to the FRIENDS funds to be applied by the
FRIENDS to the acquisition and construction and installation costs of the
Facilities.
D. Upon the completion of the construction and installation of the Facilities, the
FRIENDS will deliver possession of the Site to the CITY and it also will transfer
all right, title and interest in the Facilities to the CITY.
IN CONSIDERATION OF the foregoing and the following covenants,
terms and conditions, the Parties agree:
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AGREEMENT:
1. PURPOSES.
1.1. The Parties acknowledge the forgoing Recitals A through D are hereby
ratified and approved and are incorporated in this Agreement. The purposes of this
Agreement are to:
(a) grant the FRIENDS temporary access to the Site during the Term in order
that the FRIENDS may construct and install the Facilities; (ii) provide for the preparation
by FRIENDS, and the review and approval by the CITY, of plans, specifications and
working drawings for the Facilities; (iii) provide for the FRIENDS' completion of
construction and installation of the Facilities and the CITY's approval and acceptance of
those Facilities; and (iv) provide for the transfer of possession of the Site and all rights,
title and interest in the Facilities to the CITY upon the completion of construction and
installation of the Facilities.
(b) In the event the Site or the Park is destroyed by any cause that renders the
Site or the Park unfit for the purposes described in Section l(a), and its condition cannot
be repaired within 180 days from the date of destruction, either Party may give notice of
termination of this Agreement, which will become effective 30 days after receipt of such
notice. If the Site, but not the Park, is damaged and rendered unfit for the purposes
described in Section l(a), this Agreement will remain in effect only if the repairs to the
Site can be commenced within 180 days after the date of destruction, or either Party may
give notice of termination in accordance with the preceding sentence if the repairs cannot
be commenced within such period of time. If the Park, but not the Site, is damaged, this
Agreement will continue in effect; provided, however, the CITY will use reasonable
efforts to promptly commence repairs of the Park within 30 days after the date of
destruction in order that the FRIENDS may continue to enjoy access to the Site for the
purposes hereof.
(c) Nothing in this Agreement will be construed to limit the CITY's right to
temporarily revoke the FRIENDS' access to the Site for the purposes hereof in the event
of a default or breach of this Agreement by the FRIENDS or in the interest of the public
health, safety and welfare.
2. TERM.
2.1 This Agreement shall be for a term of one (1) year (the "Term"),
commencing upon the Effective Date, when the Parties have duly executed this
Agreement. If the completion of construction and installation of the Facilities is delayed
for any reason beyond the reasonable control of the FRIENDS, then the Parties may
agree, in writing, to extend the Term on a month-to-month basis, in order to permit the
FRIENDS' completion of construction of the Facilities. Upon (a) the completion of the
construction and installation work, (b) the CITY's acceptance of the Facilities pursuant to
Section 6(g)(6), and (c) the FRIENDS' completion of any punch-list items within the
091109 jb 0073245 5
time specified in Section 6(g)(6) this Agreement will tenninate without notice to either
Party. The Tenn will not extend after December 31,2010.
2.2 During the Tenn and subject to Section 16 hereof, in the event the
Facilities or part thereof is destroyed or substantially damaged by any cause beyond the
reasonable control of either Party, and the Facilities or part thereof cannot be
substantially repaired and occupied, in accordance with the purposes described in Section
1.1 above, within one hundred eighty (180) days from the date of destruction or
substantial damage, either Party may give to the other Party written notice of tennination
of this Agreement, which tennination will become effective thirty (30) days after receipt
of such notice, without accruing any liability to the other Party. The FRIENDS will not
be required to repair or pay for the repair of such damage, unless that damage is actually.
caused by the negligent acts or omissions of the FRIENDS, the Designer, or the General
Contractor and is not covered by insurance to be provided by the Designer or the General
Contractor.
3. USE; ACCESS TO THE SITE AND FACILITIES.
3.1 Subject to all covenants, tenns and conditions hereof, the CITY hereby
grants to the FRIENDS, its members, directors, officers, employees, consultants,
contractors, agents and representatives the revocable, nonexclusive right to enter the Park
and the exclusive right to enter the Site for the ,purposes hereof. No other right, title or
interest, including, but not limited to, any estate, ownership, leasehold, easement or other
property interest, in the Site or the Park is granted or intended to be granted to the
FRIENDS by this Agreement. The FRIENDS shall use the Site and the Park without
substantial interference or interruption of the public's use and enjoyment of the other
portions of the Park.
3.2 At a mutually agreeable date and time, the CITY at its own cost and
expense will remove only the animals and other property of the CITY that is housed at
the Site before the commencement of construction contemplated by this Agreement.
After the completion of construction of the Facilities project and the FRIENDS has
conveyed the quitclaim deed to the CITY, the CITY at its own cost and expense may
return such animals and other property of the CITY that had been housed at the Site
before the commencement of construction.
4. CONSIDERATION.
(a)(I) The FRIENDS will obtain contributions from the community to defray all
of the direct costs and expenses of the design, construction and installation of the
Facilities, excepting only those funds which the CITY will contribute or waive collection
of. The contributions received by the FRIENDS will be used exclusively to pay for the
service of any other individual whose service is reasonably required to complete the
construction and installation of the Facilities, plus reasonably related project costs and
expenses. The services of the foregoing individuals shall be obtained by means of an
infonnal competitive selection process conducted by the FRIENDS. The FRIENDS will
091109 jb 0073245 6
deposit funds for the project such contributions in a fund and disburse accordingly as
described in Section 4(b)(1). The FRIENDS will be obligated to pay any fee or charge
for utility services rendered to the FRIENDS at the Site in connection with the Facilities'
construction and installation.
(a)(2) The CITY and the FRIENDS together will undertake a community
outreach program to provide information to the Park's neighborhood concerning the
Facilities for the purpose of soliciting the input and support for the Facilities. As
practicable, the FRIENDS will coordinate its construction and installation efforts in the
Park with the Walter Hays Elementary School, Palo Alto, adjacent to the Park.
(a)(3) Prior to the commencement of construction and installation of the
Facilities, the FRIENDS shall furnish to the CITY's Director of Administrative Services
evidence that assures the CITY there will be sufficient funds available to complete the
construction of the Facilities. The term "sufficient funds" means the total amount of all
actual costs of construction and installation of the improvements, equipment, and
structures that constitute the Facilities, as set forth in the FRIENDS' itemized budget, as
described in Exhibit C. The budget will include an additional ten percent (10%) of the
total amount of all actual costs as a contingency to meet any unforeseen costs that may
arise during the construction and installation of the Facilities.
Evidence of assurance will take the following form:
Evidence of the deposit by the FRIENDS of the total amount of sufficient
funds for the Facilities, as defined herein, into the separate account maintained by
the FRIENDS and where the CITY is designated as a person which has rights as
a j oint owner of such account.
The Director of Administrative Services, or designee, will be the CITY's
representative for all purposes hereof If this Agreement is terminated for any
reason, before the completion of the Facilities, the CITY will be entitled to all
rights, title and interest in the funds and Facilities; provided, however, the CITY
will thereafter expend the funds only for the purpose of constructing and installing
the Facilities, or part thereof, that is not completed at the time of termination. If
any portion of the amount remains and is not disbursed following the completion
of the Facilities, the remainder will be retained by the FRIENDS to meet the
requests and obligations of the fund's donors.
The account will be maintained in the name of the FRIENDS and the
CITY in a form reasonably acceptable to the Director of Administrative Services.
(b)(1) The FRIENDS will establish a "Bobcat Ridge Fund" account within a
commercial bank and designate the CITY as a joint owner or otherwise has the rights as a
joint owner of the account. The FRIENDS will administer and coordinate the receipt
and disbursement of these funds, which shall be expended for all direct costs and
expenses related to the construction and installation of the Facilities at the Site.
091109 jb 0073245 7 J'
(b )(2) The CITY will waive the obligation of the FRIENDS to pay any and all
permit-and permit-related fees and charges that are due and payable to the CITY's
general fund with respect to its design, construction and installation of the Facilities at the
Site and any other related work in connection therewith; provided, however, that the
CITY will not waive the obligation of the FRIENDS to pay any fee or charge that is due
and payable to any of the CITY's enterprise funds for utility services and utility-related
service charges that are rendered to the FRIENDS at the Site or the Park.
(b )(3) The CITY will provide staff support and other assistance to the FRIENDS,
upon request, in connection with the initiation and completion of the Facilities.
5. PLANS FOR DESIGN OF IMPROVEMENTS
(a) The FRIENDS have prepared final plans and specifications and working
drawings (the "Plans") for the design and construction of the improvements at the Site, as
described in Exhibit B. The FRIENDS will submit the Plans to the CITY's Community
Services Department, Planning and Community Environment Department and the Public
Works Department as well as to the appropriate board and commissions, including, but
not limited to, the Parks and Recreation Commission, and the Council for review and
approval.
(b) The FRIENDS will obtain and maintain all CITY -issued permits and other
authorizations required for the completion of the Facilities and shall furnish to the CITY
upon request during the construction and installation phases any and all financial and
non-financial security deemed appropriate by the CITY, including, but not limited to,
evidence of insurance coverage, indemnity agreement, lien waivers, performance and
payment bonds, and covenants.
6. CONSTRUCTION AND COMPLETION OF IMPROVEMENTS
(a) The FRIENDS will commence design, construction and installation within
thirty (30) days after the Effective Date in accordance with the installation and
construction schedule, as set forth in Exhibit B. All construction and installation work
will be conducted in an efficient and workmanlike manner in substantial compliance with
the approved time schedule. The FRIENDS, at its cost and expense, will arrange for the
placement of a portable restroom at the SITE during the Term and at any time that work
will be performed with respect to the Facilities.
(b) The FRIENDS will comply with the CITY's regulations governing
construction noise controls and regulations governing dust control, all as set forth in the
Palo Alto Municipal Code.
(c) The FRIENDS will be responsible to accomplish all associated work
required to complete the Facilities and will be required to comply with all conditions that
are imposed on the Facilities during the approval process.
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(d) The FRIENDS shall include standard CITY requirements in all equipment
purchases and construction contracts in regard to warranties and workmanship guarantees
for the Facilities. The CITY, upon request, will provide the FRIENDS with a list of such
requirements.
(e) All contractors, subcontractors, and other personnel who will perform the
construction and installation work at the Site under contract with the FRIENDS shall
possess all current licenses required by the State of California.
(f) All Facilities will be constructed and installed at the Site in compliance
with the approved Plans. Any conditions relating to the manner, method, design and
construction of the Facilities established under the CITY's approval process will be
conditions of this Section 6(f) as if they were stated in this Agreement. Upon the
completion of construction and installation, the FRIENDS' project manager for the
Facilities will submit to the CITY's Manager, Arts and Sciences, a certificate of
inspection, verifying that the construction and installation were completed in
conformance with Title 24 of the California Code of Regulations.
(g) For the purposes of this Agreement, the Facilities will be deemed
completed at the time all of the following have occurred:
(1) The FRIENDS' contractor has delivered a statement, in writing, to
the CITY, stating that the Facilities have been substantially completed in accordance with
the Plans;
(2) The FRIENDS has obtained all necessary CITY inspections of and
approvals for the Facilities;
(3) The Parties' representatives have inspected the Facilities, and all
major defects and incomplete items that materially impair the use of the Facilities have
been remedied and a "punch-list" of minor defects has been prepared for prompt repair
and completion by the FRIENDS.
(4) All trash and garbage has been removed from the Site.
(5) The FRIENDS has made the Site available to the CITY for use by
the public;
(6) The CITY has confirmed, in writing, that the FRIENDS has
complied with the provisions of this Section 6(g) and final acceptance by the CITY has
been issued. As a condition precedent to the CITY's acceptance of the Facilities, the
FRIENDS will complete the "punch-list" items within a reaSonable time but not later
than 30 days after the CITY has made a preliminary determination that the Facilities is
deemed completed. '
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(7) The FRIENDS will ensure that the Project is constructed and
completed in accordance with all applicable laws, including CITY ordinances, rules, and
regulations, governing construction noise, traffic controls, and dust control, as may be set
forth in the Palo Alto Municipal Code (the "PAMC") and the CITY's Department of
Public Works Standard Drawings and Specifications for construction projects and other
related construction rules and regulations.
7. MAINTENANCE AND REPAIRS.
(a) The FRIENDS, at its sole cost, will maintain the Site and the Facilities
during the Term in a commercially reasonable, clean and safe manner to the complete
satisfaction of the CITY and in compliance with all applicable laws. The FRIENDS will
provide approved containers for trash and garbage generated at the Site and arrange for
their disposal. The CITY reserves the right to enter and inspect the Site for compliance
with this maintenance requirement and applicable safety requirements. The FRIENDS
will be responsible for any damage to the Site or the Facilities that arises in connection
with the construction and installation activities at the Site.
(b) If the FRIENDS fails to properly maintain the Site and any portion of the
Park on which the Facilities is or will be located, then the CITY will notify the
FRIENDS, in writing,' of such failure, but the CITY's failure to give notice shall not
constitute an event of default. The FRIENDS will be afforded a reasonable period of
time in order to bring the Site to a clean and safe condition. The CITY, at its option, may
elect to enforce its rights and remedies, including, but not limited to, entering the Site to
ensure the safety of all persons and property thereon.
(c) The obligation of the FRIENDS to maintain and repair the Site and the
Facilities will terminate upon the CITY's acceptance of the Facilities pursuant to Section
6(g)(6).
8. AS-BUILT DRAWINGS.
8.1 Upon the completion of the Facilities, the FRIENDS will provide the
CITY's Director of Public Works with a complete s'et of 24" by 36" digital reproducible
"as built" Plans and one printed set reflecting the actual construction and installation
performed or caused to be performed by the FRIENDS at the Site pursuant to this
Agreement.
9. OWNERSHIP OF FACILITIES AND IMPROVEMENTS.
9.1 The FRIENDS covenants that the Facilities will be free and clear of all
liens, claims or liability for labor or materials at the time of completion of the
construction and installation thereof. The FRIENDS will execute a quitclaim deed or
other document acceptable to the CITY with respect to the Facilities' ownership in the
passing of all rights, title and interest therein to the CITY.
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10. UTILITY SERVICE.
The FRIENDS will be responsible for paying for all utility services, including
electric, water and garbage services, and utility connection charges, provided at the Site,
which the FRIENDS requires in order to construct and install the Facilities and the other
improvements at the Site or the Park. For the purposes of the preceding sentence, the
FRIENDS will be responsible for the quantities of electricity, water and garbage utilities
services multiplied by the respective utilities rates and charges that are attributable to the
FRIENDS' usage of the Junior Museum and Zoo at the Site for construction purposes.
These amounts will be deemed in excess of the actual average monthly utilities
consumption of the CITY at the Junior Museum and Zoo for the months of January
through May 2009 (the "Baseline Usage"), as follows: for electricity, the Baseline Usage
per month is 9,747 kilowatt-hours ("kWh"), and the FRIENDS will pay to the CITY any
such amounts in excess thereof; for water, the Baseline Usage per month is 335 hundred
cubic feet ("CCF"), and the FRIENDS will pay to the CITY any such amounts in excess
thereof; and for refuse, the Baseline Usage per month is $101, and the FRIENDS will pay
to the CITY any such amounts in excess thereof. In the construction and installation of
the Facilities and other improvements, the FRIENDS will not cause damage to the
CITY's utilities at the Site or the Park. The FRIENDS will be liable for the replacement
costs of the CITY's utilities at the Site or the Park that are damaged by the FRIENDS
(including its general contractor, architect, and any p'erson hired or used by the
FRIENDS) in connection with the construction and installation of the Facilities and other
improvements. The replacement costs will be payable on demand of the CITY.
11. INSURANCE.
(a) The FRIENDS, its consultants and contractors, if any, at their sole cost
and expense, will obtain and maintain during the Tenn the insurance coverage described
in Exhibit D, insuring not only the FRIENDS and its consultants and contractors,
respectively, but also with the exception of workers compensation, employer's liability
and professional liability insurance, naming the CITY as an additional insured concerning
the FRIENDS' perfonnance under this Agreement.
(b) Any deductibles or self-insured retentions must be declared to and
approved by the CITY. At the option of the CITY either: the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects the CITY, its elected or
appointed officials, officers, employees, and volunteers; or the FRIENDS shall procure a
bond guaranteeing payment of losses and related investigations, claim administration and
defense expenses. The insurance shall remain in full force and effect during the Tenn,
commencing on the Effective Date and ending on the tennination of this Agreement.
Each insurance policy required by this Agreement shall contain the following clauses:
1. "Each insurance policy required by this clause shall be endorsed to
state that coverage shall not be suspended, voided, canceled by either party, reduced in
coverage or in limits except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the CITY."
091109 jb 0073245 11
2. "All rights of subrogation are hereby waived against the CITY OF
PALO ALTO and its elected and appointed officials, officers or employees, when acting
within the scope of their employment or appointment."
3. "The CITY OF PALO ALTO is named as a loss payee on the
Facilities and builders' risk insurance policies described above."
1. "The CITY OF PALO ALTO, its elected and appointed
. officials, officers, employees, agents and volunteers are to
be covered as insureds as respects: liability arising out of
activities performed by or on behalf of the FRIENDS;
products and completed operations of the FRIENDS;
premises owned, occupied or used by the FRIENDS; or
automobiles owned, subleased, hired or borrowed by the
FRIENDS. The coverage shall contain no special
limitations on the scope of protection afforded to the CITY,
its elected and appointed officials, officers, employees,
agents or volunteers. "
11. "For any claims related to this Agreement, the FRIENDS'
insurance coverage shall be primary insurance as respects
the CITY OF PALO ALTO, its elected and appointed
officials, officers, employees, agents and volunteers. Any
insurance or self-insurance maintained by the CITY, its
elected and appointed officials, officers, employees, agents
or volunteers shall be excess of the FRIENDS' insurance
and shall not contribute with it."
111. "Any failure to comply with reporting or other provisions
of the policies including breaches of warranties shall not
affect coverage provided to the CITY OF PALO ALTO, its
elected and appointed officials, officers, employees, agents
or volunteers."
IV. "The FRIENDS' insurance shall apply separately to each
insured against whom a claim is made or suit is brought,
except with respect to the limits of the insurer's liability."
(c) All insurance will be provided by insurer carriers with a current A.M.
Best's rating of not less than A:VII. The FRIENDS will deposit with the CITY, on or
before the Effective Date, certificates of insurance necessary to satisfy the CITY that
these insurance provisions have been complied with, and to keep such insurance in effect
and the certificates therefor on deposit with the CITY during the Term. If the FRIENDS
does not provide evidence of coverage at least three (3) days prior to the expiration of any
existing insurance coverage, the CITY may purchase such insurance coverage for not
more than a six-month period, on behalf of and at the sole cost and expense of the
FRIENDS. The CITY retains the right to review the coverage, form, and amount of the
091109 jb 0073245 12
insurance coverage required by this Agreement and require the FRIENDS to alter the
coverage, as appropriate. The CITY's requirements shall be reasonable and shall be
designed to assure protection from and against the kind and extent of risk which exists at
the time a change in insurance is required. A failure by the FRIENDS to provide
acceptable insurance policies or certificates with the CITY incorporating such changes
within 30 days of receipt of such notice will constitute a default under this Agreement.
Such default will constitute a material breach and shall be grounds for termination of this
Agreement by the CITY. The procuring of such required insurance will not be construed
to limit the FRIENDS' liability hereunder or to fulfill the indemnification provision and
requirements of this Agreement. Notwithstanding the policy or policies of insurance, the
FRIENDS shall be obligated for the full and total amount of any damage, injury, or loss
occurring during the Term that is caused, directly or indirectly, by the willful or negligent
acts andlor omissions of the FRIENDS or its engineers, contractors, or design
professionals, or connected with this Agreement or with use·or occupancy of the Site by
the FRIENDS or its landscape architect, contractors, or design professionals.
12. INDEMNITY.
The FRIENDS will protect, defend, indemnify and hold harmless the CITY, its
elected and appointed officials, officers, employees and representatives, from any and all
demands, claims, damage, loss or liability of any nature, including death of or injury to
, persons, property damage or any other loss, caused by or arising out of the FRIENDS' or
any of its landscape architect's or contractor's negligent acts, errors, or omissions, or
willful misconduct, in the performance of or failure to perform its obligations under this
Agreement. The foregoing indemnity obligation of the FRIENDS shall expire and be of
no further force or effect upon the confirmation, in writing, by the CITY that the CITY
has accepted the Facilities, except for any pending claims made, in writing, that are
received by the FRIENDS, the FRIENDS' general contractor, or the CITY prior to such
acceptance.
13. WANER.
13.1 The waiver by either Party of any breach or violation of any covenant, term, or
condition of this Agreement or of the provisions of any park improvement ordinance or
other CITY law will not be deemed to be a waiver of any such covenant, term, condition,
or ordinance or of any subsequent breach or violation of the same or any other covenant,
term, condition, or ordinance. The subsequent acceptance by either Party of any
consideration which may become due or payable hereunder will not be deemed to be a
waiver of any preceding breach or violation by the other Party of any other covenant,
term, or condition of this Agreement or any ordinance.
14. ASSIGNMENT.
14.1 The FRIENDS will not assign, transfer, or convey this Agreement without
the express written approval of the CITY, and any such assignment, transfer or
conveyance without the approval of the CITY will be void and in such event, at the
091109 jb 0073245 13
CITY's option, this Agreement may be terminated upon thirty (30) days' prior written
notice to the FRIENDS.
15. NONDISCRIMINATION.
15.1 The P AMC prohibits discrimination in the employment of any individual
under this Agreement because of race, skin color, gender, age, religion, disability,
national origin, ancestry, sexual orientation, housing status, marital status, familial status,
weight or height of that person. The FRIENDS acknowledges that it has read and
understands the provisions of P AMC Chapter 2.30 relating to nondiscrimination in
employtilent and the penalties for violations thereof, and it agrees to comply with all
requirements of P AMC Chapter 2.30 pertaining to nondiscrimination in employment,
including the completion, execution and submission to the CITY of the Certification of
Nondiscrimination, as described in Exhibit F.
16. FORCE MAJEURE.
16.1 A Party will be temporarily excused from the performance or further
performance of any of its covenants or agreements or any terms or conditions that it is
obligated to fulfill hereunder and such Party's nonperformance shall not be deemed an
event of default under this Agreement for any period to the extent that such Party is
prevented, hindered or delayed for any period of time not in excess of thirty (30) days
from performing any of its covenants or agreements, in whole or in part, or any term or
condition it is required to perform or satisfy as a result of an act of God, war, civil
disturbance, court order, or other cause beyond that Party's reasonable control. The
Parties hereby agree to use reasonable efforts to remedy the effects caused by the
occurrence of the event giving rise to a Party's temporary nonperformance of its
covenants or agreements or any terms or conditions that it is obligated to fulfill
hereunder. A Party will provide notice promptly to the other Party to the extent thllt Party
relies on the provisions of this Section to temporarily excuse its failure to perform any of
its covenants or agreements or any terms or conditions hereunder.
17. AUDITS; INSPECTION OF RECORDS.
17.1 The FRIENDS will maintain, or caused to be maintained by its general
contractor(s) and subcontractors, if any, books and records relating to the construction of
the Project during the Term and for three (3) years thereafter. It will permit the CITY to
inspect, audit and copy, upon thirty (30) days' prior written notice from the CITY at any
reasonable time during the Term and for three (3) years after the expiration or earlier
termination of the Agreement, the FRIENDS' books and records pertaining to its
obligations imposed by this Agreement. The FRIENDS will retain such books and
records at accessible locations and for at least thee (3) years after the expiration or earlier
termination of this Agreement, whichever occurs later. This provision will survive the
expiration or earlier termination of this Agreement.
091109 jb 0073245 14
18. INDEPENDENT CONTRACTOR.
18.1 In the construction of the Project and the performance of other duties
imposed upon it by this Agreement, the FRIENDS acts at all times as an independent
contractor and not as an employee of the CITY. Nothing in this Agreement will be
construed to establish a partnership, joint venture, group, pool, syndicate or agency
between the Parties. No provision contained herein will be construed as authorizing or
empowering either Party to assume or create any obligation or responsibility whatsoever,
express or implied, on behalf, or in the name of, the other Party in any manner, or to
make any representation, warranty or commitment on behalf of the other Party. In no
event will either Party be liable for (a) any loss incurred by the other Party in the course
of its performance hereunder, or (b) any debts, obligations or liabilities of the other Party,
whether due or to become due.
19. REPRESENTATIONS AND WARRANTIES.
19.1 On the Effective Date, each Party represents and warrants to the other
Party that: (A) it is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its formation; (B) the execution, delivery and performance of this
Agreement and the Exhibits are within its powers, have been duly authorized by all
necessary action and do not violate any of its governing documents, any contracts to
which it is a party or any law, rule, regulation, or order; (C) the Agreement and the
Exhibits and any other document executed and/or delivered in accordance with this
Agreement constitutes its legally valid and binding obligation enforceable against it in
accordance with its covenants, terms, conditions and provisions; (D) it has not filed and it
is not now contemplating the filing for bankruptcy protection or, to its knowledge,
threatened against it which would result in it being or becoming bankrupt; (E) there is not
pending or, to its knowledge, threatened against it or any of its affiliates any legal
proceedings that could materially adversely affect its ability to perform its obligations
under this Agreement and the Exhibits; and (F) no event of default or potential event of
default with respect to it has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or performing its obligations
under this Agreement and the Exhibits.
20. EVENTS OF DEFAULT; REMEDIES FOR DEFAULT.
20.1 This Agreement may be terminated upon the occurrence of an "event of
default" by a Party (the "Defaulting Party"). An "event of default," which will constitute
a material breach of this Agreement if it is not cured in a timely manner, means the
occurrence of any of the following: (A) a representation or warranty made by a Party is
false or misleading in any material respect when made or deemed made or repeated; (B)
the failure to perform any material covenant, or obligation set forth in this Agreement or
any Exhibit if such failure is not remedied within thirty (30) days after written notice of
default is given; (C) a Party files a petition or otherwise commences or acquiesces in the
commencement of a proceeding under any bankruptcy, insolvency, reorganization or
similar law, makes an assignment for the benefit of its creditors, has an administrator,
091109 jb 0073245 15
receiver, trustee, conservator or similar official appointed with respect to it or any
substantial portion of its property or assets, or is generally unable to pay its debts as they
fall due; (D) a Party consolidates with, merges with or into, or transfers all or
substantially all of its assets to, another entity and, at the time of such consolidation,
merger or traDsfer, the surviving entity fails to assume all of the obligations of the Party
under this Agreement and the Exhibits to which it was a party by operation of law or
pursuant to an agreement reasonably satisfactory to the other Party; (E) the transfer of
this Agreement and the Exhibits or any material obligation arising under this Agreement
and the Exhibits, whether voluntarily or by operation of law, without the consent of the
other Party; and (F) the failure to make, when due, any payment required by this
Agreement if such failure is not remedied within five (5) business days after written
notice of default is given.
20.2 If an event of default occurs and is continuing with respect to the
Defaulting Party, the other Party (the "Non-Defaulting Party") will have an election of
rights and remedies, in addition to all other rights and remedies afforded or provided by
law or in equity or as otherwise provided in this Agreement, to which the non-defaulting
Party may resort cumulatively, or in the alternative: (A) the right to terminate this
Agreement by giving thirty (30) days' prior notice of termination, in which event this
Agreement will tenninate on the date set forth in the notice of termination; (B) the right
to demand performance of an act which otherwise cure the violation or any breach; and
(c) the right to suspend performance of any of its material obligations, including, without
limitation, the right to withhold any payments due to the Defaulting Party under this
Agreement.
20.3 In the event of default which cannot reasonably be cured within sixty (60)
days, the FRIENDS may, at the CITY's sole and exclusive option, have an additional
period of time specified by the CITY to cure the default. The remedies given to the
CITY hereunder, or by any law now or hereafter enacted, are cumulative and the exercise
of one right or remedy will not impair the right of the CITY to exercise any or all other
remedies. In case any suit, action or proceeding to enforce any right or exercise any
remedy shall be brought or taken and then discontinued or abandoned, then, and in every
such case, the Parties will be restored to their former positions, rights and remedies as if
no such suit, action or proceedings had been brought or taken.
21. NOTICES.
21.1 All notices, requests and approvals by a Party will be given, in writing,
and delivered by personal service, the United States . Postal Service,express delivery
service, electronic mail transmission or facsimile transmission, as follows:
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091109 jb 0073245 16
TO CITY:
TO FRIENDS:
22. DISPUTE RESOLUTION
City of Palo Alto
1305 Middlefield Road
Palo Alto, CA 94301
Phone: (650) 463-4951
Fax: (650) 321-5612
E-Mail: greg.betts@cityofpaloalto.org
ATTN: Greg Betts, Interim Director
And john.aikin@cityofpaloalto.org
ATTN: John Aikin, Junior Museum & Zoo
Friends of the Palo Alto Junior Museum &
Zoo
1451 Middlefield Road
Palo Alto, CA 94303
Phone: (650) 326-6338
FAX: (650) ______ _
E-Mail: info@FRIENDSjmz.org
E-Mail: aletha_c@hotmail.com
Attention: Al~a Celfltan, Boa~d President A~· COlbl1AtU
22.1 If a dispute arises from or in connection with this Agreement, generally, or
any Exhibit, in particular (a "Dispute"), the following procedure will govern the
resolution of any such Dispute: (A). the Parties will nominate their respective
representatives to be responsible for and exercise the appropriate authority to resolve all
Disputes hereunder for the respective fourteen-day resolution period of time; and (B) if
the Dispute remains unresolved within such fourteen-day period, before either Party may
resort to the process described in Sections 22.3 and 22.4, either Party may refer the
Dispute, in writing, for final settlement to the FRIENDS' President and the City
Manager, or designee, who will jointly convene within ten (10) days of receipt of a
referral request and use reasonable efforts to consider and resolve the Dispute. The
Parties will ensure that their respective representatives confer for a period of fourteen
(14) days from the date of referral by either Party.· If final resolution cannot be achieved,
the Parties may resort to the procedures described in Sections 22.3 and 22.4 hereunder.
22.2 Nothing contained in this Agreement will prevent or otherwise restrict
either Party from pursuing its equitable rights, including injunctive relief and specific
performance, in the event of a material breach by the other Party.
22.3 In the event of a Dispute between the Parties with respect to this
Agreement or the enforcement of rights hereunder, either Party may, by notice to the
other Party (the "Mediation Notice"), require such dispute to be submitted to non-binding
mediation in Palo Alto, California, with a mediator acceptable to the Parties. If such
mediation does not result in a settlement of the Dispute within one hundred eighty (180)
days from the date of the Mediation Notice, either Party may require such matter to be
091109 jb 0073245 17
submitted to non-binding arbitration in Palo Alto, California, under the rules of the
American Arbitration Association. Action of any kind by either Party arising out of this
Agreement must be commenced within one (1) year from the date the right, claim,
demand or cause of action first arises.
22.4 Notwithstanding anything to the contrary set forth herein, in no event will
the FRIENDS interrupt or suspend or terminate its construction of the Facilities project or
perform any action that prevents, impedes, or reduces in any way the construction of the
project in a timely manner or the CITY's ability to exercise its rights under this
Agreement, unless: (A) authority to do so is granted by the CITY or conferred by a court
of competent jurisdiction; or (B) this Agreement has been validly terminated.
23. MISCELLANEOUS PROVISIONS.
(a) This Agreement will be governed by and construed in accordance with the
laws of the State of California and the Charter of the City of Palo Alto and the Palo Alto
Municipal Code. The Parties will comply with all applicable federal, state and local laws
in the exercise of their rights and the performance of their obligations under this
Agreement.
(b) All provisions of this Agreement, whether covenants or conditions, will be
deemed to be both covenants and conditions.
(c) This Agreement represents the entire agreement between the Parties and
supersedes all prior negotiations, representations and contracts, written or oral. This
. Agreement may be amended by an instrument, in writing, signed by the Parties. This
Agreement 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.
(d) All exhibits referred to in this Agreement are by such references
incorporated in this Agreement and made a part hereof. The following exhibits are made
a part of this Agreement:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Description of the Site and Facilities
Installation Schedule and Conditions Precedent to
Construction
Itemized Budget
Insurance Requirements
Certificate of Nondiscrimination
Quitclaim Deed
(e) Upon request of the CITY, the FRIENDS will furnish to the CITY for its
review and approval copies of its articles of organization, operating agreement, and other
information relating to its organization status.
. 091109 jb 0073245 18
(t) This Agreement is subject to the fiscal provisions of the Charter of the
City of Palo Alto and the Palo Alto Municipal Code. This provision will take precedence
in the event of a conflict with any other covenant, term or condition of this Agreement.
(g) The Parties agree that the normal rule of construction to the effect that any
ambiguity is to be resolved against the drafting party will not be employed in the
interpretation of this Agreement or any amendment or Exhibit hereto.
(h) 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 for the Northern District of California in the County of Santa Clara, State
of California.
(i) The prevailing Party in any action brought to enforce the provisions of this
Agreement may recover its reasonable costs and attorneys' fees expended in connection
with that action.
0) If a court of competent jurisdiction finds or rules that any provision of this
Agreement, the Exhibits, or any amendment thereto, is void or unenforceable, the
unaffected provisions of this Agreement, the Exhibits, or any amendment thereto, will
remain in full force and effect.
(k) The term "day" means a calendar day, unless a "business day" is
specified; for the purposes of this Agreement, "business day" excludes any "Regular
Holiday" or "Other Special Day" referred to in P AMC Section 2.08.100 or any Friday
that is considered a '9/80' day, when the CITY does not require employees, electing to
work nine (9) business days in a ten-business-days biweekly period, to work on such
days.
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091109 jb 0073245 19
IN WITNESS WHEREOF, the Parties by their duly authorized
representatives have executed this Agreement on the Effective Date.
APPROVED AS TO FORM: CITY OF PALO ALTO
Senior Asst. City Attorney City Manager
APPROVED:
Director of Administrative Services
091109 jb 0073245 20
EXHIBIT A
DESCRIPTION OF THE SITE AND FACILITIES
The Junior Museum was founded by Josephine O'Hara in 1934 in the basement ofa local
elementary school and moved to its current location, 1451 Middlefield Road in 1940 as
part of Works Progress Administration fuvestment in Youth Recreation. The building
has been remodeled and enlarged and currently totals 9000 square feet with classrooms,
an exhibition hall, and offices. The Y2 acre Zoo was added to the Museum (on Rinconada
Park Property) in 1969 and cares for over 230 animals representing some 50 species of
invertebrates, fish, reptiles, birds, and mammals. The mission of the Palo Alto Junior
Museum & Zoo (JMZ) is to engage a child's curiosity for science and nature.
The Site is in the southeastern quadrant of the existing Zoo and is bordered by Walter
Hays Elementary School to the south and by Rinconada Park's walkway and Playground
to the east. The northern boundary of the site is the existing duck pond within the Zoo
and the western boundary is the supports for the third bay of the existing aviary.
The Bobcat Ridge Exhibit will include demolition of 2/3rds of the existing aviary and
construction of a bobcat exhibit and holding enclosures by the FRIENDS;
The exhibit is approximately 1,000 square feet (SF) of which 800 SF are a landscaped
habitat with a waterfall and pool for the cats covered with a protective stainless steel net.
There is a view area with tempered laminated glass for nose to nose viewing, and behind-
the-scenes management enclosures to facilitate veterinary care, animal introductions, and
off-exhibit rest for the cats. The construction duration of the Bobcat exhibit is estimated
to be four months. The contractor will be provided access through Rinconada Park so
that the Zoo may remain open.,
: <,. .. "
~ i ......... 1" ..... · ... 3?~ .. ·_. ,.
091109 jb 0073245 21
Figure 1: Location of Bobcat Ridge Exhibit within the Junior Museum & Zoo
091109 jb 0073245 22
EXHIBITB
INSTALLATION SCHEDULE CONDITIONS PRECEDENT TO
CONSTRUCTION
PART A
Preliminary Milestone Schedule
January 7,2010:
February 28, ~010:
March 30, 2010:
April 28, 2010
May 30,2010:
PARTB
Notice To Proceed
Completion of utilities, foundation, footings
Completion of Structures
Completion of Landscaping and Substantial completion
Completion of Punch List, Deed to CITY and As-built
Drawings
The FRIENDS will not commence construction of the Facilities project pursuant to this
Agreement, unless and until all the following conditions precedent have been satisfied:
A. Designer. The FRIENDS shall have engaged the services of a professional designer
to handle all aspects of design, engineering, and review of the project.
B. Construction Manager. The FRIENDS shall have engaged the services of a
qualified licensed engineer, an architect or other building construction professional,
which provides these services in the ordinary course and scope of business, to serve
as the construction manager. The construction manager will coordinate its services
with the architect or the engineer; the FRIENDS' contract with the Construction
Manager shall have received the prior review and approval of the PW Manager
before the commencement of construction. The CITY will not unreasonably
withhold or delay its approval of the FRIENDS' contract with the Construction
Manager, provided that the Construction.Manager's responsibilities are set forth, as
follows:
(i) Represent the CITY and the FRIENDS on-site during the construction phase
to assure confonnance with the project documents and high quality of
workmanship. Oversee construction of the Project, including conducting on-
site inspections. Monitor the Project's confonnance with the Construction
Documents. Serve as the point of contract for the Parties' staffs
coordination with the General Contractor concerning the Project, during
construction and during the Tenn. Ensure that all new and refurbished
equipment have been installed in accordance with the contract documents,
091109 jb 0073245 23
are working properly; as stand-alone equipment, and are working properly as
part of a complete system.
(ii) . Analyze the schedule for logical construction, constraints, and level of
critical activities. Monitor the General Contractor's progress, and review the
General Contractor's progress scheduled, as submitted. NotifY the Parties of
any schedule slippage and coordinate with the General Contractor and the
Architect or other design consultants on the recovery plan.
(iii) Maintain accurate an up-to-date Project file, which includes all
documentation required for the proper management of a construction project
and will be delivered to the CITY upon completion of the Project. Prepare
and maintain various logs such as request for infonnation, submittals, change
orders, and so forth. Prepare all necessary documentation for the Proj ect,
including daily construction inspection/progress reports, photographs and/or
videos, requests for infonnation, and correspondence with the General
Contractor and the Architect or other design consultants. Ensure the
completion and delivery of all General Contractor-required close-out
documentation, including Operation and Maintenance manuals, record
drawings, warranties, and so forth. Review all of these materials for
compliance with the contract documents and for completeness.
a. Review progress payment requests submitted by the General Contractor,
verifY the accuracy and percentage-of-completion against the schedule, and
resolve any discrepancies in the invoices. Review the invoices and back-up
infonnation for completeness and compliance with the contract documents,
and make a recommendation to the Parties for payment of the progress
payment requests. Review and evaluate all General Contractor extra work
requests. Review the contract documents to determine entitlement, complete
an independent estimate of the cost of the changes, and reconcile with the
General Contractor's change order request(s). Prepare extra scope of work
authorizations for the Parties' approvals and track all scope of work and
schedule changes.
b. Assist the CITY to manage the abatement process to ensure compliance with
all applicable laws. Coordinate hazardous materials investigations, reports,
and removal with contractor and the CITY's hazardous materials contractor,
as may be required during the construction.
c. Attend the following meetings: regularly scheduled site meetings with the
General Contractor, such as weekly progress review meetings; site meetings
with the CITY's staff, the Construction Manager, the Architect or engineer,
and the General Contractor, to address and resolve issues; and attend
meetings with various CITY department personnel as needed to coordinate
the plans and construction logistics.
091109 jb 0073245 24
C. Construction Documents Approvals. The FRIENDS shall have obtained approval of
the construction documents for the Project (the "Construction Documents") from the
City Engineer and the CITY's Chief Building Official (the "Official"). The City
Engineer's review of the Construction Documents shall have included those aspects
of design pertaining to whether the Project can be effectively maintained after it is
completed and the Facility transferred to the CITY for ongoing operation and
maintenance. The Construction Documents shall include:
(i) Complete architectural, landscape, systems and engineering plans;
(ii) Complete structural calculations;
(iii) Complete construction specifications;
(iv) Complete construction contract form;
(v) Proposed construction schedule; and
(vi) A cost estimate at 100% design completion stage.
D. CEOA Compliance. The FRIENDS shall have complied with the California
Environmental Quality Act of 1970 ("CEQA"), as amended, and all related CITY
procedures for implementing CEQA, to allow the Project to be implemented.
E. Permits. The FRIENDS shall have provided to the PW Manager proof, in writing,
that all permits and approvals from any and all agencies having pre-construction
jurisdiction over the Project, including, but not limited to, building permits, grading
permits, street opening permits and health permits, have been authorized and are
available.
F. Certification to Official. The FRIENDS shall have submitted to the Official its
written certification that the plans for any proposed building construction comply,
in all respects, with current building codes, the federal Americans with
Disabilities Act of 1990, as amended, including any implementing regulations and
energy conservation requirements as set forth in the California Code of
Regulations, Title 24, for non-residential construction.
G. Sufficient Funds. The FRIENDS shall have satisfied the City's Director of
Administrative Services (the "ASD Director"), or designee, the RP Manager, that it
has sufficient funds to construct the Project according to the several plans and
documents· to be approved by the CITY, as set forth in this Agreement and the
Exhibits, including the Construction Documents. The phrase "sufficient funds" for
purposes of this paragraph shall mean the total amount of all actual construction
costs for all proposed improvements under the applicable phase, as set forth in the
General Contractor's and the Construction Manager's actual bid, plus such General
Contractor's and the Construction Manager's overhead and profit, plus an additional
ten percent (10%) of such cost as a reasonable contingency.
Evidence of such assurance shall take one of the forms described below and shall
guarantee the FRIENDS' full and faithful performance of all of the covenants,
terms, and conditions of this Agreement:
091109 jb 0073245 25
(i) Completion bond naming the CITY as beneficiary;
(ii) Performance and payment bonds, supplied by the FRIENDS' general
contractor (or the Construction Manager) or subcontractors, provided the
bonds are issued with both Parties named as beneficiaries;
(iii) Irrevocable letter of credit from a financial institution naming the CITY as
beneficiary; or
(iv) Any combination of the above.
Samples of the forms referred to above may be obtained from the CITY,
including, but not limited to, the CITY's Purchasing Manager, upon request.
All instruments referred to in G(i) -(iii) above must be issued by a company (or
companies) qualified to do business in California, must be in a form acceptable to
the ASD Director and the City Attorney, and must ensure the faithful and full
observance and performance by the FFRIENDS of all of the covenants, terms,
conditions and provisions relating to the construction of improvements in
accordance with the Construction Documents to be approved by the CITY, as set
forth in this Agreement. To the extent a letter of credit is utilized, the amount of
the letter of credit shall be substantially equal to the estimated cost to complete all
approved capital improvements and related construction, and the CITY shall
cooperate, as practicable, with the FRIENDS to structure the letter of credit so
that its amount may be periodically reduced to reflect the remaining cost to
complete all approved construction, to permit the FRIENDS to recover from the
issuer of the letter of credit any collateral to actually pay for the construction in
progress with such collateral that is no longer needed.
The FRIENDS shall have provided a revised estimated construction cost estimate
upon the completion of the Construction Documents. The FRIENDS shall furnish
this revised estimate promptly to the PW Manager.
091109 jb 0073245 26
EXHIBITC
ITEMIZED BUDGET
p r . re Immary It . dC t f B d t emlze ons ruc Ion U 1ge
Item
Netted Enclosure
Caging and Hose down area
Demolition -CMU wall, wood structure etc
Viewing Shelter
Utilities and Earthwork
Landscape and Topsoil
Viewing Barriers
Subtotal
Contingency 10%
Total
091109 jb 0073245 27
Cost
$ 74J OOO
$ 60,000
$ 20,000
$ 52,000
$ 45,000
$ 40,000
$ 9,000
$ 300,000
$ 30,000
$ 330LOOO
REQUIRED
YES
YES
YES
YES
YES
YES
EXHIBITD
INSURANCE REQUIREMENTS
THE FRIENDS, AT ITS SOLE EXPENSE, SHALL DURING THE TERM OBTAIN AND MAINTAIN
INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES
WITH A BEST'S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT
INSURANCE BUSINESS IN THE STATE OF CALIFORNIA.
MINIMUM LIMITS
TYPE OF COVERAGE REQUIREMENT EACH
OCCURRENCE AGGREGATE
WORKER'S COMPENSATION STATUTORY
AUTOMOBILE LIABILITY STATUTORY
BODILY INJURY $1,000,000 $1,000,000
COMPREHENSIVE GENERAL
LIABILITY, INCLUDING PERSONAL PROPERTY DAMAGE $1,000,000 $1,000,000
INJURY, BROAD FORM PROPERTY
DAMAGE BLANKET CONTRACTUAL, BODILY INJURY & PROPERTY DAMAGE $1,000,000 $1,000,000
AND FIRE LEGAL LIABILITY COMBINED.
BODILY INJURY $1,000,000 $1,000,000
-EACH PERSON $1,000,000 $1,000,000
COMPREHENSIVE AUTOMOBILE -EACH OCCURRENCE $1,000,000 $1,000,000
LIABILITY, INCLUDING, OWNED,
HIRED, NON-OWNED PROPERTY DAMAGE $1,000,000 $1,000,000
BODILY INJURY AND PROPERTY DAMAGE, $1,000,000 $1,000,000
COMBINED
PROFESSIONAL LIABILITY,
INCLUDING, ERRORS AND
OMISSIONS, MALPRACTICE (WHEN
APPLICABLE), AND NEGLIGENT
PERFORMANCE ALL DAMAGES $1,000,000
THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: PROPOSER, AT ITS SOLE COST AND EXPENSE,
SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT
AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY PROPOSER AND ITS SUBCONSULTANS,
IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS' COMPENSATION, EMPLOYER'S LIABILITY AND PROFESSIONAL
INSURANCE, NAMING AS ADDITIONAL INSURES CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS, AND EMPLOYEES.
COMPLIANCE WITH CITY'S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW:
I. INSURANCE COVERAGE MUST INCLUDE:
A. A PROVISION FOR A WRITTEN THIRTY-DAY ADVANCE NOTICE TO THE CITY OF A
CHANGE IN COVERAGE OR OF COVERAGE CANCELLATION; AND
B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE
FOR CONTRACTOR'S AGREEMENT TO INDEMNIFY CITY -SEE SECTION, SAMPLE
AGREEMENT FOR SERVICES.
II. SUBMIT CERTIFICATE(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE, OR
COMPLETE THIS SECTION AND IV THROUGH V, BELOW.
A. NAME ANDNDRESS 0,. COMP~ AFFORDING COVERAGE (NOT AGENT OR
BROKER): O(\el'01\1 of ...LA.J \.\~ Pr\I( M-CA.
B. NAME, ADDRESS, AND PHONE NUMBER OF YOUR INSURANCE AGENTIBROKER:
091109 jb 0073245 28
ACORD.. CERTIFICATE OF LIABILITY INSURANCE OP ID D4 I OA TE (MMIOOtYYYY)
l1'lUEN-B 09/18/09
PRODUCER
Intert'lest Insurance
License #0801094
330 Tres Pinos Road
Hollister CA 95023
Phone: 831-636-4919
INSURED
Services
Suite A-1
Fax: 831-635-9237
Friends Of The palo Alto Jr. 1451 Middlefield Road Palo Alto CA 94301
COVERAGES
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND. EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
! I INSURERS AFFORDING COVERAGE ,
!. ~~I!.~§!~.~: "._ ._,tI';In~r~!:.~.r.~ _!;'.~-"!';t,:"", ... At 1. taMe
: INSURERS:
! INSURERC;
! I INSURER 0: r·----·--------..... --.
! INSURERE:
I NAIC# ,
-!
! ..... . ... -' .~.. . -:
!
TIiE POLICIES OF INSURANCE liSTED anow HAVE Ot:~N ISSUF.O TO THE INSURED NAME!) ABove FOR THE' POUCV PERIOD INDICATED. NOTWITHSTANDING
IINY H~Q(JIHI::MENT T!;RM OR CONDITION OF ANY CONTRACT OR OTIIER DOCUMENT WITH RESPECT TO WHICH THIS CERnFICATE MAY SF. ISSUEIl OR
MAY I'I:IHAIN. ,HE lNSURIINCI: AFfORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS or SUCII
PQUGI(S AGcmEGATf: lIMffS SHOWN MAY HAVE SEEN REDUCED SY PAID CLAIMS.
INSRjADD'L
LTR mSRD TYPE OF INSURANCE . ·-'·----Tl'"OIJCYEFFECTlVl: 'jP"OI:IC'fEXPIRIiTION r POLICY NUMBER I DATE iMMIDDIYY) DATE' (MMIDDrfYj" i LIMITS
x
A
A
GENERAL LIABILITY
: xi COMMERCIAlOENEAAlLiABIUTY Q1200912184
;
;
;
.,' .. T' '---: j--'1
· : ; CLAII~S MADE ~J OCCUR
· X : Liquor LiCll?'~_~!:¥ __ 11
· GELLAGGR~GATE LIMIT APP~~E5 P~R.
; "PRO·' i I ! POLICY I ! JECT ! i lOC .
AUTOMoe:LE LIABILITY I i i ANY AUTO
I : All OI'l'NED AUTOS
. j SCHEDULED AUTOS
X ! HIRED AUTOS
· " I Q12009121B4 ,
!
i
J
_X !' NON,OWNED AUTOS
i GA~AGE LIABI!.ITY
j ANY AlJTO
!
I
I i
;. EX~ESSIUMBRELL!,_~~BILITY I
, OCCUR CLAIMS MADE !
j DEDUCTIBtE
i , ! RETENTION $
, WORKERS COMPENSATION AND
: EMPLOVERS' LlABILlTV
ANY ?ROPRIETORIPARTNERlEXECUTIVE OFFICf.!HIMEMBEH EXCLUDED?
OTH"R
Directors&Officers
i
I !
01200912184
I I
I 09/20/09 1 I ! ! i I I I , I I I I I i . i .
I I I ! i i
I i
I
I
09/20/091
I I I i I !
! !
i i
I I
I i i I i I I
1 ,
I
1
09/20/09
i EACH OCCURRENCE 51,000! 0e>9
/
I DAMAGE TO RENTED 09 20/10 p:~13FM!.§.;;,S'<'E.~occu,ence) s 100,000
! MEP EXP (Any OM pOtSO.,) S 10 I 000
[r'r;r~SONAI&AOV;;J~;R~ 51,000000
! GllNRRAl.AGGREGATF . $ 1,000,000
I j>1~ODucrs· COMPIOP A(3G : $ 1 , 000 1 000 I .
.. ·····I~g!~~~~~lf;NGLE -Ll~IT ~~,~~o, 000
I BODilY INJURY i s (Par person)
s 09/20/10 I BODILY INJURY
(Per accident)
. ! PROPERTY DAMAG~' . . . . s I (rer "cr.,dent)
09/20/10
I AlJmONlY'EAACClo.~N~. S
I
OTHER TH/,N EA ACe s
AUTO ONLY' AGG ! S
! EACH OCCURRENCE ! $
I AGGREGA1'( 1 $
I 1$ 'I, i $
i$
I \TOWY:;L'I~:¥S i lvtin";
I E.L. EACH ACCIDENT I $
I E. L. DISEASE· EA EMPLOYEE! $
EL. UlSEIlSE ' POLICY LIMIT I $
Occurrenc
Aggregate
1,000,000
2,000,000
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDEO BV ENDORSEMENT I SPECIAL PROVISIONS
*10 day notice applies to non-payment of premium*
CERTIFICATE HOLDER CANCELLATION
SHOULD ANV OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30* DAYS WRITTeN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. SUT FAILURE TO DO SO SHALL
Proof of Insurance IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
REPRESENTATIveS.
AU S ~""t> --;,(f£..t-, ,-~
ACORD 25 (2001/08) ® ACORD CORPORATION 1988
C. POLICY NUMBER(S):
D. DEDUCTIBLE AMOUNT(S) (DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE
CITY'S PRIOR APPROVAL):
III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO
"ADDITIONAL INSURES"
A. PRIMARY COVERAGE
WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED
INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT
ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR
FOR THE BENEFIT OF THE ADDITIONAL INSURES.
B. CROSS LIABILITY
THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSURES
UNDER THE POLICY SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY
RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND THE
NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF
THE COMPANY UNDER THIS POLICY.
C. NOTICE OF CANCELLATION
1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY
REASON OTHER THAN THE NON·PAYMENT OF PREMIUM, THE ISSUING
COMPANY SHtLL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN
NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON·
PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT
LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF
CANCELLATION.
IV. UNDERSIGNED CERTIFIES THAT THE FRIENDS' INSURANCE COVERAGE MEETS THE ABOVE
REQUIREMENTS:
THE INFORMATION HEREIN IS CERTIFItD CO ECT BY SIGNATURE(S) BELOW.
,."" I ! \ I. ·-r··· .. ··.-
Finn: " .... t.~: :::,u'4<1L-V\"'y~' .. / -",;"a/~.-r.. .'. .." --<---.
Signature: -, "'::·k'·"·"·"c<...r--,·"'/.li ~1/~"'/,.~
Name: ,":>.>tl Li I \:'l C0G-;'> I h '1--7-'1'
(Print or type name)
Signature:
Name:
(Print or type name)
0911 09 jb 0073245 29
NOTICES SHALL BE MAILED TO:
091109 jb 0073245
PURCHASING AND
CONTRACT ADMINISTRATION
CITY OF PALO ALTO
P.O. BOX 10250
PALO ALTO, CA 94303.
30
EXHIBITE
CERTIFCATION OF NONDISCRIMINATION
As suppliers of goods or services to the City of Palo Alto, the firm and individuals listed
below certify that they do not discriminate in employment of any person because of race,
skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation,
housing status, marital status, familial status, weight or height of such person; that they
are in compliance with all Federal, State and local directives and executive orders
regarding nondiscrimination in employment.
1. If Proposer is INDIVIDUAL, sign here:
Date: ------Proposer's Signature
Proposer's typed name and title
2. If Proposer is PARTNERSHIP or JOINT VENTURE, at least (2) Partners
or each ofthe Joint Venturers shall sign here:
Partnership or Joint Venture N arne (type or print)
Date: _____ _
Date: ------
Member of the Partnership or Joint Venture
signature
Member of the Partnership or Joint Venture
signature
3. If Proposer is a CORPORATION, the duly authorized officer(s) shall sign as
follows:
The undersigned certify that they are respectively:
P~~~i -PrJe~ lo~and l(\Q~~I];J, ~d~,,-
Title I . Title
Of the corporation named below; that they are designated to sign the Proposal Cost
Form by resolution (attach a certified copy, with corporate seal, if applicable,
notarized as to its authenticity or Secretary's certificate of authorization) for and on
behalf of the below named CORPORATION, and that they are authorized to execute
same for and on behalf of said CORPORATION.
091109 jb 0073245 31
091109 jb 0073245 32