HomeMy WebLinkAboutStaff Report 318-08City of Palo Alto
City Manager’s Report
12
TO:
FROM:
DATE:
SUBJECT:
HONORABLE CITY COUNCIL
CITY MANAGER
JULY 21, 2008
DEPARTMENT: UTILITIES
CMR: 318:08
APPROVAL OF A UTILITIES ENTERPRISE FUND CONTRACT WITH
D’ARCY & HARTY CONSTRUCTION, INC. IN AN AMOUNT NOT TO
EXCEED $1,177,695 FOR WASTEWATER COLLECTION SYSTEM
REHABILITATION CAPITAL IMPROVEMENT PROGRAM PROJECT
WC-06003 PROJECT 19B
RECOMMENDATION
Staff recommends that Council approve and authorize the City Manager or his designee to
execute the attached contract with D’Arcy & Harty Construction, Inc. (Attachment A) in an
amount not to exceed $1,177,695 for Wastewater Collection System Rehabilitation Capital
Improvement Program WC-06003 (WWC Project 19B).
Staff also recommends that Council approve and authorize the City Manager or his designee to
negotiate and execute one or more change orders to the contract with D’Arcy & Harty
Construction, Inc. for related, additional but unforeseen work which may develop during the
project, the total value of which shall not exceed $117,770.
DISCUSSION
Continuance of Contract Award From June 16 to July 21, 2008
Rehabilitation work on the wastewater collection system for this project will occur along
Arastradero Road between King Arthur’s Court and E1 Camino Real. This contract award was
originally scheduled for Council approval on June 16, 2008, to provide adequate time for the
winning bidder to be able to complete work on Arastradero before the start of the school year on
August 25. Immediately following completion of the work on Arastradero~ the project is then
scheduled to move to the California Avenue area with the schedule minimizing California
Avenue area impacts during the September 21 Jewish Community Center event. However, the
Council approval for award of the contract was moved to July 21, 2008, in order to allow staff
adequate time to evaluate a bid protest filed by KJ Woods Construction Company, the low
bidder, on June 13, 2008. The roughly one month delay has removed any flexibility in the
schedule to accommodate anticipated construction issues.
CMR: 318:08 Page 1 of 4
In the protest letter, KJ Woods acknowledged that failure to complete forms in the Invitation for
Bids (IFB) that identified the contractor’s specific experience for the work included in the bid
items, as well as the experience of the contractor’s supervising staff could result in rejection of
the bid. The requirement for completing the forms (Form Numbers 2735-1 and 2735-2) was
stated in three different places in the bid documents: Section 2-Table of Contents, Section 300A
- Bidder Information, and Section 2735 - Polyethylene Sewer Pipe. Further information about
these forms was included in Section 2735 of the bid package. Section 2735 is a critical section
of the bid package because it includes construction methods and materials used for 75% of the
project. Thus, it is unlikely that a bidder would have overlooked this section. The city uses
specialized construction techniques in its wastewater collection system rehabilitation and
augmentation capital improvement program that requires a high level of expertise for correctly
installing lasting facility improvements. The required bid forms are not generic "just for
information" forms. The forms serve the important function of providing information critical to
the evaluation of the bids. Bidders acknowledge their obligation to provide the information in
the forms provided by signing the Bidder’s Bid Pages in Section 300 of the project Invitation for
Bids.
After receiving KJ Woods’ written protest, the City’s Purchasing division conducted an
investigation to determine whether the protest had merit. Following the investigation,
Purchasing informed KJ Woods in writing that the protest was denied and offered KJ Woods an
informal hearing with the Purchasing Manager. On July 8, the Purchasing Manager conducted
an informal hearing with KJ Woods. After further consideration of the issues discussed in the
hearing, the Purchasing Manager affirmed the City’s decision to deny KJ Woods’ protest in a
letter faxed and mailed on July 9. If KJ Woods was dissatisfied with,the Purchasing Manager’s
response to the protest, KJ Woods had five working days to appeal to the Director of
Administrative Services. A timely appeal was filed by the July 16 deadline.
The City has had projects installed by inexperienced contractors that resulted in additional
construction costs, disruption to the community, increased and significant staff time to manage
the projects and contracts, arbitration, and increased maintenance costs. Staff has developed and
refined the issued bid documents over many years in order to be able to select the best qualified
bidders with project-specific experience for the City’s infrastructure replacement projects. Staff
has found that these forms have aided in the hiring of experienced contractors whose installations
have been of high quality, requiring reduced maintenance over time, and whose construction
practices have helped to minimize disruptions to the community. Staff uses the required forms
to quickly identify and verify the types of projects and specific experience bidders claim in their
bids.
For the last four fiscal years, the City has used some of the same forms on sanitary sewer
collection CIP projects to evaluate bidders’ specific project experience. It is noted that, with the
exception of one bid submittal, KJ Woods was a non-responsive bidder for failure to fill out the
required project experience forms on all but one of the IFBs the City issued over the last four
fiscal years. In the only instance where KJ Woods correctly filled out and submitted the required
forms, the firm’s bid was determined and declared to be a non-responsive bid because staff was
able to evaluate the information provided in the completed form and determine that the firm
CMR: 318:08 Page 2 of 4
lacked the required experience. KJ Woods failed to fill out the required forms for this IFB and,
as a result, similar to what has been done with past non-responsive submissions, has been
determined to be a non-responsive bidder. In the present case, however, staff expresses no
opinion as to KJ Woods’ qualifications or experience, based on the lack of properly completed
forms to use to make that determination.
Staff experience to date is that use of these IFB forms to thoroughly evaluate a bidder’s
experience for the project specific work has provided the City with the lowest possible total
overall project installation and maintenance costs and with well-qualified contractors.
Project Description
The work to be performed under the contract is for the replacement of approximately 8,100
linear feet of sanitary sewer mains of various sizes,30 sewer manholes, and 200 sewer service
laterals. The scope includes the replacement of sewer mains, manholes, and laterals on
Arastradero Road and adjacent streets, as well as the replacement of sewer laterals on California
Avenue in the business district. As this sanitary sewer rehabilitation contract is a critical
component of the City’s overall infrastructure maintenance goals, staff wishes to avoid further
delay in completing the work. Any additional delay will also negatively impact back-to-school
traffic in the Arastradero Road area and the September 21 Jewish Community Center event on
California Avenue.
Summary, of Bid Process
Bid Name/Number
Proposed Length of Project
Number of Bids Mailed to
Contractors
Number of Bids Mailed to Builder’s
Exchanges
Total Days to Respond to Bid
Pre-Bid Meeting?
Number of Company Attendees at
Pre-Bid Meeting
Number of Bids Received:
Bid Price Range
*2 responsive bids were received out of a total of 6 submittals.
Attachment B.
Project 19B Sanitary Sewer Rehabilitation/126462
180 calendar days
8
3
21
Yes
1
6*
From a low of $958,000 to a high of $1,612,390
Bid summary is provided in
Staff has reviewed all bids submitted and found that four out of six bids were non-responsive
because they failed to submit the required documentation for pipe-bursting experience. Staff
recommends that the bid of $1,177,695 submitted by D’Arcy & Harty Construction, Inc, be
accepted and that D’Arcy & Harty Construction, Inc. be declared the lowest responsive and
responsible bidder. The bid is eighteen percent below the engineer’s estimate of $1,438,750.
The change order amount of $117,770, which equals 10 percent of the total contract, is requested
for unforeseen additional work that may develop during the project.
CMR: 318:08 Page 3 of 4
Staff confirmed with the Contractor’s State License Board that the contractor has an active
license on file. Staff checked references supplied by the contractor for previous work performed
and found no significant complaints.
PROJECT COORDINATION
The work will be coordinated with the Public Works Department at the monthly department
coordination meetings and by meeting independently with Public Works’ project managers
whose projects may directly impact this project. During the coordination meetings, sta~ff is
aggressively targeting areas such as Arastradero Road and California Avenue to more closely
plan and coordinate underground infrastructure into future street maintenance phases. The
targeted streets will be resurfaced in Public Works Engineering’s upcoming projects after utility
work is completed to prevent trenching in newly repaved streets.
RESOURCE IMPACT
Funds for this project are available in the Wastewater Collection Funds Capital Improvement
Program budgets.
POLICY IMPLICATIONS
This recommendation is consistent with the Council-approved Utilities Strategic Plan, Key
Strategy #2, "Invest in utility infrastructure to deliver reliable service."
ENVIRONMENTAL REVIEW
This project is categorically exempt from the California Environmental Quality Act (CEQA)
pursuant to CEQA Guideline Sections 15301 (b) repair and maintenance of existing public utility
facilities and 15302 (c) replacement or reconstruction of existing utility facilities involving no
expansion of capacity.
ATTACHMENTS
A: Contract
B: Bid Summary
C: Certificate of Non-Discrimination
PREPARED BY:~Silvia Santos, Project Engineer
Edward Wu, Senior Project Engineer
,,~ Roger Cwiak, Engineering Manager
DEPARTMENT HEAD:
CITY MANAGER APPROVAL:
VA~FONGDirector oi" lYtilities/~. /~~
Deputy City Managers
CMR: 318:08 Page 4 of 4
ATTACHMENT A
CONTRACT No. C08126462
(Public work)
Utilities Department
This Contract, number C08126462. dated __ is entered into by and between the City of Palo Alto, a California
Charter City and a municipal corporation of the State of California ("City"), and D’Arcy & Harty Construction, Inc.
("Contractor").
For and in consideration of the covenants, terms, and conditions (*the provisions*) of this Contract, City and Contractor
("the parties") agree:
Term. This Contract shall commence and be binding on the parties on the Date of Execution of this Contract,
and shall expire on the date of recordation of the Notice of Substantial Completion, or, if no such notice is
required to be flied, on the date that final payment is made hereunder, subject to the earlier termination of this
Contract.
General Scope of Proiect and Work. Contractor shall furnish labor, services, materials and equipment in
connection with the construction of the Project and complete the Work in accordance with the covenants, terms
and conditions of this Contract to the satisfaction of City. The Project and Work is generally described as
follows:
Title of Project:Project 19B Sanitary Sewer Rehabilitation, Invitation for Bids (IFB) No. 126462
Bid:,~ 1,177,695
Contract Documents. This Contract shall consist of the documents set forth below, which are on file with the
City Clerk and are hereby incorporated by reference. For the purposes of construing, interpreting and resolving
inconsistencies between and among the provisions of this Contract, these documents and the provisions
thereof are set forth in the following descending order of precedence.
This Contract.
Invitation for Bid.
Project Specifications.
Drawings.
Change Orders.
Bid.
Supplementary Conditions.
General Conditions,
City of Palo Alto Dept. of Public Works Standard Drawings and Specifications (1992).
Certificate of Insurance, Performance Surety Bond, Labor & Materials (Payment) Surety Bond.
Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications or the
City of Palo Alto Dept. of Public Works Standard Drawings and Specifications (1992).
Any other document not expressly mentioned herein which is issued by City or entered into by the
parties.
Compensation. In consideration of Contractor’s performance of its obligations hereunder, City shall pay to
Contractor the amount set forth in Contractor’s Bid in accordance with the provisions of this Contract and upon
the receipt of written invoices and all necessary supporting documentation within the time set forth in the
Contract Specifications and the City of Palo Alto Dept. of Public Works Standard Drawings and Specifications
(1992), or, if no time is stated, within thirty (30) Days of the date of receipt of Contractor’s invoices.
CITY OF PALO ALTO C08126462
rev. 12/00
Insurance. On or before the Date of Execution, Contractor shall obtain and maintain the policies of insurance
coverage described in the Invitation For Bid on terms and conditions and in amounts as may be required by the
Risk Manager. City shall not be obligated to take out insurance on Contractor’s personal property or the
personal property of any person performing labor or services or supplying materials or equipment under the
Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting
coyerage required under this Contract on or before the Date of Execution. The certificates and endorsements
for each insurance policy shall be signed by a person who is authorized by that insurer to bind coverage in its
PAGE 1 OF 6
behalf. Proof of insurance shall be mailed to the Project Manager to the address set forth in Section 16 of this
Contract.
Indemnification. Contractor agrees to protect, defend, indemnify and hold City, its Council members, officers,
employees, agents and representatives harmless from and against any and all claims, demands, liabilities,.
losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly or
indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful acts
or the negligent acts or omissions of Contractor, or which results from Contractor’s noncompliance with any Law
respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises from
Contractor’s failure to do anything required under this Contract or for doing anything which Contractor is
required not to do under this Contract, or which arises from conduct for which any Law may impose strict liability
on Contractor in the performance of or failure to perform the provisions of this Contract, except as may arise
from the sole willful acts or negligent acts or omissions of City or any of its Council members, officers,
employees, agents or representatives. This indemnification shall extend to any and all claims, demands, or
liens made or filed by reason of any work performed by Contractor under this Contract at any time during the
term of this Contract, or arising thereafter.
To the extent Contractor will use hazardous materials in connection with the execution of its obligations under
this Contract, Contractor further expressly agrees to protect, indemnify, hold harmless and defend City, its City
Council members, officers and employees from and against any and all claims, demands, liabilities, losses,
damages, costs, expenses, liens, penalties, suits, or judgments City may incur, arising, in whole or in part, in
connection with or as a result of Contractor’s willful acts or negligent acts or omissions under this Contract,
under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. )~9601-6975,
as amended); the Resource Conservation and Recovery Act (42 U.S.C. )~6901-6992k, as amended); the Toxic
Substances Control Act (15 U.S.C. ))2601-2692, as amended); the Carpenter-Presley-Tanner Hazardous
Substance Account Act(Health & Safety Code, 9)25300-25395, as amended); the Hazardous Waste Control
Law (Health & Safety Code, ~)25100-25250.25, as amended); the Safe Drinking Water and Toxic Enforcement
Act (Health & Safety Code, ~25249.5-25249.13, as amended); the Underground Storage of Hazardous
Substances Act (Health & Safety Code, ~25280-25299.7, as amended); or under any other local, state or
federal law, statute or ordinance, or at common law.
7b Assumption of Risk Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the
property of Contractor which may occur in, on, or about the Project site at any time and in any manner,
excepting such loss, injury, or damage as may be caused by the sole willful act or negligent act or omission of
City or any of its Council members, officers, employees, agents or representatives.
Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by
City of its rights under this Contract. A waiver by City of any breach of any part or provision of this Contract by
Contractor shall not operate as a waiver or continuing waiver of any subsequent breach of the same or any
other provision, nor shall any custom or practice which may arise between the parties in the administration of
any part or provision of this Contract be construed to waive or to lessen the right of City to insist upon the
performance of Contractor in strict compliance with the covenants, terms and conditions of this Contract.
10.
No Exoneration By Inspection: The City has the right, but not the duty, to inspect Contractor’s Work. The right
of inspection is solely for the benefit of City. Contractor has the obligation to complete the Work in a
satisfactory manner in compliance with Contract requirements. The presence of a City inspector does not shift
that obligation to the City or relieve Contractor from its obligations to .complete the Work in a satisfactory
manner in compliance with the Contract requirements.
Compliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force
pertaining to the Project and Work and this Contract, with the requirement of any bid secudty or fire
underwriters or other similar body now or hereafter constituted, with any discretionary license or permit issued
pursuant to any Law of any public agency or official as well as with any provision of all recorded documents
affecting the Project site, insofar as any are required by reason of the use or occupancy of the Project site, and
with all Laws pertaining to nondiscrimination in employment and hazardous materials.
11.Bid Security Bonds. As a condition precedent to City’s obligation to pay compensation to Contractor, and on or
before the Date of Execution, Contractor shall furnish to the Project Manager the Bid Security as required under
the Invitation For Bid.
CITY OF PALO ALTO C08126462 " PAGE 2 OF 6
rev. 12/00
12...R.¢presentations and Warranties. In the supply of any materials and equipment and the rendering of labor and
services during the course and scope of the Project and Work, Contractor represents and warrants:
Any materials and equipment which shall be used during the course and scope of the Project and
Work shall be vested in Contractor;
Any materials and equipment which shall be used during the course and scope of the Project and
Work shall be merchantable and fit to be used for the particular purpose for which the materials are
required;
Any labor and services rendered and materials and equipment used or employed during the course
and scope of the Project and Work shall be free of defects in workmanship for a period of one (1) year
after the recordation of the Notice of Substantial Completion, or, if no such notice is required to be
flied, on the date that final payment is made hereunder;
Any manufacturer’s warranty obtained by Contractor shall be obtained or shall be deemed obtained by
Contractor for and in behalf of City.
Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request,
whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true
and correct at the time such information is submitted or made available to the City;
Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to
the terms and conditions of Contractor’s Bid, except as may be permitted by the Invitation For Bid;
Contractor has the power and authority to enter into this Contract with City, that the individual
executing this Contract is duly authorized to do so by appropriate resolution, and that this Contract
shall be executed, delivered and performed pursuant to the power and authority conferred upon the
person or persons authorized to bind Contractor;
h=Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project
Manager or any other person who has directly contributed to City’s decision to award the contract to
Contractor;
There are no unresolved claims or disputes between Contractor and City which would materially affect
Contractor’s ability to perform under the Contract;
Contractor has furnished and will furnish true and accurate statements, records, reports, resolutions,
certifications, and other written information as may be requested of Contractor by City from time to
time during the term of this Contract;
Contractor and any person performing labor and services under this Project are duly licensed by the
State of California as required by California Business & Professions Code Section 7028, as amended;
and
Contractor has fully examined and inspected the Project site and has full knowledge of the physical
conditions of the Project site.
14.
Assi.qnment. This Contract and the performance required hereunder is personal to Contractor, and it shall not
be assigned by Contractor. Any attempted assignment shall be null and void.
Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the Contract Time
or other disputes arising out of the Contract shall be submitted by Contractor to City in writing by certified or
registered mail within ten (10) Days after the claim arose or within such other time as may be permitted or
required by law, and shall be described in sufficient detail to give adequate notice of the substance of the claim
to City.
15.Audits. by City. During the term of this Contract and for a period of not less than three (3) years after the
CITY OF PALO ALTO C08126462 PAGE 3 OF 6
rev. 12/00
expiration or earlier termination of this Contract, City shall have the right to audit Contractor’s Project-related
and Work-related writings and business records, as such terms are defined in California Evidence Code
Sections 250 and 1271, as amended, during the regular business hours of Contractor, or, if Contractor has no
such hours, during the regular business hours of City.
16.Notices. All agreements, appointments, approvals, authorizations, claims, demands, Change Orders, consents,
designations, notices, offers, requests and statements given by either party to the other shall be in writing and
shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the United States
mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission,
if sent to the telephone FAX number set forth below during regular business hours of the receiving party and
followed within two (2) Days by delivery of a hard copy of the material sent by facsimile transmission, in
accordance with (t), (2) or (3) above. Personal service shall include, without limitation, service by delivery and
service by facsimile transmission.
To City:City of Palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
Copy to:City of Palo Alto
Dept- Utilities
Division - Engineering
Address - 1007 Elwell Court
Palo Alto, CA 94303
Silvia Santos, Project Manager
To Contractor:D’Arcy & Harty Construction, Inc.
1300 Carroll Avenue
San Francisco, CA 94124
Attn: Mike D’Arcv
17.Appropriation of City Funds. This Contract is subject to the fiscal provisions of Article 111, Section 12 of the
Charter of the City of Palo Alto. Any charges hereunder for labor, services, materials and equipment may
accrue only after such expenditures have been approved in advance in writing in accordance with applicable
Laws. This Contract shall ter.rninate without penalty (I) at the end of any fiscal year in the event that funds are
not appropriated for the following fiscal year, or (ii) at any time within a fiscal year in the event that funds are
only appropriated for a portion of the fiscal year and funds for this Contract are no longer, available. This
Section 17 shall control in the event of a conflict with any other provision of this Contract.
18.Miscellaneous.
Bailee Disclaimer. The parties understand and agree that City does not purport to be Contractor’s
bailee, and City is, therefore, not responsible for any damage to the personal property of Contractor.
Consent. Whenever in this Contract the approval or consent of a party is required, such approval or
consent shall be in writing and shall be executed by a person having the express authority to grant
such approval or consent.
Controlling Law. The parties agree that this Contract shall be governed and construed by and in
accordance with the Laws of the State of California.
Definitions. The definitions and terms set forth in Section 1 of the City of Palo Alto Dept. of Public
Works Standard Drawings and Specifications (1992) of this Contract are incorporated herein by
reference.
e.Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to
CITY OF PALO ALTO C08126462 PAGE 4 OF 6
rev. 12/00
perform its obligations under this Contract which directly results from an Act of God or an act of a
superior governmental authority.
Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the
construction or interpretation of any part of this Contract.
Incorporation of Documents. All documents constituting the Contract documents described in Section
3 hereof and all documents which may, from time to time, be referred to in any duly executed
amendment hereto are by such reference incorporated in this Contract and shall be deemed to be part
of this Contract.
Integration. This Contract and any amendments hereto between the parties, constitute the entire
agreement between the parties concerning the Project and Work, and there are no other prior oral or
written agreements between the parties that are not incorporated in this Contract.
Modification of Agreement. This Contract shall not be modified or be binding upon the parties, unless
such modification is agreed to in writing and signed by the parties.
Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or
other sfJpulation in the Contract shall define or othel~ise control, establish, or limit the performance
required or permitted or to be required of or permitted by either party. All provisions, whether
covenants or conditions, shall be deemed to be both covenants and conditions.
Resolution. contractor shall submit with its Bid a copy of any corporate or partnership resolution or
other writing, which authorizes any director, officer or other employee or partner to act for or in behalf
of Contractor or which authorizes Contractor to enter into this Contract.
Severability. If a court of competent jurisdiction finds or rules that any provision of this Contract is void
or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect.
Status of Contractor. In the exercise of rights and obligations under this Contract, Contractor acts as
an independent contractor and not as an agent or employee of City. Contractor shall not be entitled to
any rights and benefits accorded or accruing to the City Council members, officers or employees of
City, and Contractor expressly waives any and all claims to such rights and benefits.
Successors and Assigns. The provisions of this Contract shall inure to the benefit of, and shall apply
to and bind, the successors and assigns of the parties.
Time of the Essence. Time is of the essence of this Contract and each of its provisions. In the
calculation of time hereunder, the time in which an act is to be performed shall be computed by
excluding the first Day and including the last. If the time in which an act is to be performed falls on a
Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be
extended to the following Business Day.
Alternative Dispute Resolution. The parties shall endeavor to resolve any disputes or claims arising
out of or relating to this Contract by mediation, which, unless the parties agree otherwise, shall be
conducted under the auspices of the Judicial Arbitration and Mediation Service (JAMS), San Jose,
California. The intent of the parties is that the mediation shall proceed in advance of litigation;
however, if any party should commence litigation before the conclusion of mediation, such litigation,
including discovery, shall be stayed pending completion of mediation, and by executing this Contract
the parties stipulate to mediation in accordance with Santa Clara County Superior Court Local Rule
‘1 .’15 o[ Rule 2-3(b) of the ADR Local Rules of the U.S. District Court for the Northern District of
California, as such rules may be amended from time to time. The parties shall share the cost of the
mediation, including the mediator’s fee, equally. Any written agreement reached in mediation shall be
enforceable pursuant to California Code of Civil Procedure § 664.6, as amended.
Venue. Unless the parties mutually agree otherwise, mediation shall take place in San Jose,
California. In the event that litigation is commenced by any party hereunder, the parties agree that
such action shall be vested exclusively in the state courts of California in the County of Santa Clara or
CITY OF PALO ALTO C08126462 ’~AGE 5 OF 6
rev. 12/00
in the United States District Court for the Northern District of California.
So
Recovery of Costs. Each Party shall bear its own costs, including attorney’s fees, through the
completion of mediation. If the claim or dispute is not resolved through mediation, or if litigation is
necessary to enforce a settlement reached at mediation pursuant to Califomia Code of Civil Procedure
§ 664.6, as amended, then the prevailing party in any subsequent litigation may recover its reasonable
costs, including attorney’s fees, incurred subsequent to conclusion of the mediation.
Flow-down. Contractor agrees to include provisions of this Contract relating to Alternative Dispute
Resolution, Venue. and Recovery of Costs in any subcontracts or major material purchase
agreements which it enters into in connection with this Contract, and to require its subcontractors to
include those provisions in any sub-contracts or major material purchase agreements, such that any
mediation or litigation of any claim or dispute asserted by a subcontractor (~r major material supplier
will be consolidated with any related claim or dispute between the Contractor and the City. Should the
Contractor fail to do so, such that the City is required to defend an action brought by a subcontractor
or material supplier inconsistent with the Alternative Dispute and Venue provisions of this Contract,
Contractor shall indemnify City for City’s costs of defense, including reasonable attorney’s fees.
IN WITNESS WHEREOF, the parties have by their duly appointed representatives executed this Contract in the city of
Palo Alto, County of Santa Clara, State of California on the date first stated above.
APPROVED ASTO FORM:
Senior Assistant City Attorney
CITY OF PALO ALTO
D’ARCY & HARTYCONSTRUCTION, INC.
By:
Name:
Title:
APPROVED:
Assistant City Manager
Director of Administrative Services
CITY OF PALO ALTO ’~;08126462
rev. 12/00
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ATTACHMEN
ATTACHMENT C
CERTIFICATION OF NONDISCRIMINATION FORM 410
PROJECT: Project 19B Sanitary Sewer Rehabilitation
Certification of Nondiscrimination: As suppliers of goods and/or services to the City of Palo Alto in excess
of $5,000, the firm, contractor or individual(s) listed below certify that: they do not and in the performance of
this contract they will not discriminate in employment of any per.son because of race, skin color, gender, age,
religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familia! status,
weight or height of such person; and further certify that" they are in compliance with all Federal, State and local
directives and executive orders regarding nondiscrimination in employment.
Title of Officer
Signature:
DATE:
CITY OF PALO ALTO IFB TBD
Attachment "C"
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