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HomeMy WebLinkAboutStaff Report 356-08City of Palo Alto City Manager’s Report 11 TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS DATE:SEPTEMBER 8, 2008 CMR:356:08 SUBJECT:ADOPTION OF A BUDGET AMENDMENT ORDINANCE FOR FISCAL YEAR 2008-09 TO PROVIDE AN ADDITIONAL APPROPRIATION OF $751,325 TO CAPITAL IMPROVEMENT PROGRAM PROJECT VR- 01001 MUNICIPAL SERVICE CENTER FUEL STORAGE TANK REPLACEMENT AND APPROVAL OF A CONTRACT WITH AMERICAN CONSTRUCTION AND ENVIRONMENTAL SERVICES, INC. IN THE AMOUNT OF $702,076 FOR CONSTRUCTION OF THE INTEGRATED FUELING FACILITY COMPRESSED NATURAL GAS FUELING AREA WITH A PUBLIC DISPENSER RECOMMENDATION Staff recommends that Council: Adopt the attached Budget Amendment Ordinance (BAO) in the amount of $751,325 (Attachment A) to provide an additional appropdatiun for.the Capital Improvement Program (CIP) Project VR-01001 MSC Fuel Storage Tank Replacement. Approve and authorize the City Manager or his designee to execute the attached contract C09124683 with American Construction and Environmental Services, Inc., (Attachment C) in the amount $702,076 for construction of the Integrated Fueling Facility Compressed Natural Gas (CNG) facilities. o Authorize the City Manager or his designee to negotiate and execute one or more change orders to the contract with American Construction and Environmental Services, Inc., for related, additional but unforeseen work which may develop during the project, the total value of which shall not exceed $84,249. BACKGROUND The existing fueling facility at the Municipal Service Center (MSC) provides both conventional and non-conventional (CNG) fuel for City vehicles and equipment on a 24 hour basis. The current facility is thirty .nine years old and is in need of replacement. In order to reduce construction costs and to obtain the most qualified contractors, staff recommended bidding the conventional fuel portion replacement work separately from the CNG replacement work. CMR:356:08 Page ,1 of 4 On September 1!, 2006, Council approved a construction contract to build a replacement conventional fueling facility at the MSC (CMR:342:06). This report addresses the construction contract for the CNG portion of the replacement project. DISCUSSION Proiect Description There will be two CNG stations constructed under this contract using previously purchased CNG equipment. One CNG station located within the gated perimeter of the MSC will serve city operations and the second located inside the gates of the northernmost employee parking lot will be available for public use (Attachment B). Owners of private CNG vehicles may purchase CNG at the dispenser using credit cards via a card reader. Facilities Management will provide facility access cards to the public upon request. Approval of this contract and associated BAO is needed due to a number of factors. A $300,000 grant from the Santa Clara Valley Transportation Agency (VTA) was used to purchase the CNG equipment that will be used in this project. Since the VTA funding has already been expended, failure to proceed with the project would require reimbursement to the VTA. Further, Capital Improvement Project PE-08005, Municipal Service Center Resurfacing, has been coordinated to resurface the impacted area from the CNG project upon its completion. Funding of the BAO for this phase of construction will come from existing Capital Improvement Project Funding listed in the table under Resource Impact section. Bid Process A notice inviting formal bids for the Municipal Service Center Integrated Fueling Facilities- CNG was posted at City Hall on July 15, 2008 and sent to twelve potential bidders. The bidding period was 35 days. Bids were received from three qualified contractors on August 19, 2008, as listed on the attached bid summary (Attachment D). Base bids ranged from a total low bid of $702,076 to a total high bid of $992,993 for the base bid. 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 * Summary of Bid Process Integrated Fueling Facility 3 months 12 IFB #124683 10 35 Yes 9 3 $702,076 to $992,993 for the Base Bid $1,154,833 to $1,491,288 with the (removing existing fueling station). *Bid summary provided in Attachment D. Bid Alternate CMR:356:08 Page 2 of 4 The project as it was bid included a Base Bid for installation of new CNG dispensers and a Bid Alternate for the removal of the existing fueling station and nearby former storage area for above-ground fuel tanks. The existing fueling station is no longer needed since construction has recently been completed on a new conventional fueling station at the east side of the MSC. The cost to award a contract for the Base Bid plus the Bid Alternate would be $1,154,833, which is beyond the funding available for this CIP therefore staff is recommending awarding the base bid only. Staff has reviewed all bids submitted and recommends that the base bid of $702,076 submitted by American Construction and Environmental Services, Inc., be accepted and that American Construction and Environmental Services, Inc., be declared the lowest responsible bidder. The bid is less than 1 percent above the engineer’s estimate of $700,000. 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. A contingency amount of 12 percent is requested since testing has determined that some of the soil at the new fueling station site has been contaminated with oil and gas residue and may need to be removed. The extent of remediation required by the Santa Clara Valley Water District cannot be determined until the ground is excavated and the degree that the contamination has traveled within the soil is evaluated. An additional $5,000 is requested for CIP VR-O1001 to cover the costs of materials testing and welding inspection that is typically paid for by the City, not the contractor. RESOURCE IMPACT The Project has a remaining unused appropriation of $40,000, and an additional appropriation of $751,325 is needed to provide the necessary funds for the Project. The additional appropriation of $751,325 will be funded by a transfer from various existing vehicle replacement projects. The details of the funding sources are as follows: Description VR-01002- MSC Equipment Washing Facility Upgrade VR-05001- Field Service Truck VR-06800- MTBE Investigation VR-04010-Vehicle Maintenance Total Amount $681,394 9,000 12,664 48,267 $751,325 A Budget Amendment Ordinance of $751,325 is necessary to increase appropriation to VR-01001, MSC Fuel Storage Tank Replacement CIP Project. VR-01002 is an active project designated for the replacement of the equipment washing facility at the MSC. This project is CMR:356:08 Page 3 of 4 still needed; however, the need for a new CNG fueling facility now takes precedence over the wash facility due to the requirements to implement the VTA grant monies, and project coordination with the MSC resurfacing. In addition, the existing fueling station and above- ground tank storage area are still in need of removal. In order to meet these needs and other significant vehicle related objectives and obligations, Administrative Services and Public Works staff are worldng on a revised funding plan for the Vehicle Replacement Fund through possible revised allocated charges and revenue from the sale of CNG to the public. Once funding is identified staff will return with capital improvement projects to remove the existing fueling station and former tank-storage area and construct a new wash facility as part of the FY 2009- 2010 budget. POLI~CY I~N[PLI~CAT[ONg This project furthers Policy N-21 and N-25 of the Comprehensive Plan. ]ENWltRONI~IENT~.,L REVEEW This project is exempt under the California Environmental Quality Act (CEQA) Section 15302 because it is a relocation of an existing use. The project has been appropriately conditioned to address .the soil contamination. ATTAChmeNTS Attachment A: Attachment B: Attachment C: Attachment D: Attachment E: Budget Amendment Ordinance (includes CIP Page as Exhibit A) Revised Description of CIP VR-01001 Contract Bid Summary Certification of Nondiscrimination PREPARED BY: DEPARTMENT HEAD: J. I~I~CHAEL SARTOR Ask[stant Director of Public Works GLENN S. ROBERTS Director of Public Works CITY MANAGER APPROVAL: CMR:356:08 Page 4 of 4 ATTACHMENT~ ORDINANCE NO. ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING THE BUDGET FOR THE FISCAL YEAR 2008-09 TO PROVIDE AN ADDITIONAL APPROPRIATION OF $751,325 TO CAPITAL IMPROVEMENT PROGRAM (CIP) VR-01001, MSC FUEL STORAGE TANK REPLACEMENT The Council of the City of Palo Alto does ordain as follows: SECTION i. The Council of the City of Palo Alto finds and determines as follows: A. Pursuant to the provisions of Section 12 of Article III of the Charter of the City of Palo Alto, the Council on June 9, 2008 did adopt a budget for fiscal year 2008-09; and B. In fiscal year 1999-00, the Council did adopt a budget for CIP Project VR-01001, MSC Fuel Storage Tank and Fuel Storage Service Island Replacement (Project), with an initial appropriation of $475,000, and in fiscal year 2001-02, increased the appropriation by $125,000; and C. In fiscal year 2001-02, the Santa Clara Valley Transportation Authority (VTA) awarded a grant of $300,000 to CIP Project VR-01001, MSC Fuel Storage Tank and Fuel Storage Service Island Replacement; and D. In fiscal year 2006-07, the Council increased the appropriation of the Project by $943,003(BA0#4915) bringing total appropriation to $1,543,003, excluding the grant from VTA of $300,000. The appropriation provided the funds for the construction of a new conventional fueling facility at the MSC (CMR: 342:06), replacing an aging thirty-nine year old facility; and E. The construction of a new conventional fueling facility mentioned in Section D did not include construction of new stations for compressed natural gas. A $300,000 grant from the Santa Clara Valley Transportation Authority (VTA) was used to purchase CNG equipment for the project (CMR: 145:01); and F. The amount of $791,325 is needed to install the previously purchased CNG equipment and all the associated piping and electrical systems; and G. Project has a remaining unused appropriation of $40,000, and an additional appropriation of $751,325 is needed to provide the necessary funds for the Project. The additional appropriation of $751,325 will be funded by a transfer from various existing projects. The details are as follows; and VR-01002- MSC Equipment Washing Facility Upgrade VR-05001- Field Service Truck VR-06800-MTBE Investigation VR-04010-vehicle Maintenance Total $681,394 9,000 12,664 48,267 $751,325 H. City Council authorization is needed to amend the 2008-09 budget to make available the funds needed for CIP Project VR- 01001, MSC Fuel Storage Tank Replacement. SECTION 2. The sum of Seven Hundred Fifty One Thousand Three Hundred Twenty Five Dollars ($751,325) is hereby appropriated to CIP Project VR-01001, MSC Fuel Storage Tank Replacement. SECTION 3. The appropriation for CIP Project VR-01002, MSC Equipment Washing Facility Upgrade is hereby reduced by Six Hundred Eighty One Thousand Three Hundred Ninety Four Dollars ($681,394). SECTION 4. The appropriation for CIP Project VR-05001, Field Service Truck is hereby reduced by Nine Thousand Dollars ($9,000). SECTION 5. The appropriation for CIP Project VR-06800, MTBE Investigation is hereby reduced by Twelve Thousand Six Hundred Sixty Four Dollars ($12,664). SECTION 6. The appropriation for CIP Project VR-04010, Vehi.cle Maintenance is hereby reduced by Forty Eight Thousand Two Hundred Sixty Seven Dollars ($48,267). SECTION 7 The transactions above will have no impact on the Vehicle Replacement Fund Reserve: SECTION 8. As specified in Section 2.28.080(a) of the Palo Alto Municipal Code, a two-thirds vote of the City Council is required to adopt this ordinance. SECTION 9. As provided in Section 2.04.330 of the Palo Alto Municipal Code, this ordinance shall become effective upon adoption. SECTION i0. The Council of the City of Palo Alto hereby finds that this project is exempt under the California Environmental Quality Act (CEQA) Section 15302 because it is a relocation of an existing use. INTRODUCED AND PASSED: AYES: NOES: ABSTENTIONS: ABSENT: ATTEST:APPROVED: City Clerk Mayor APPROVED AS TO FORM: City Manager Senior Asst. City Attorney Director of Public Works Director of Administrative Services Attachment MSC Fuel Storage Tank Replacement (VR-01001) Continuing -- MiscNlaneous PROJECT DESCRIPTION This project will provide for the replacement of all above ground conventional and compressed natural gas (CNG) fuel storage tanks at the Municipal Services Center (MSC) with underground tanks of equivalent capacity; replacement of the fuel service island and fuel dispensers; and the installation of an electronic fuel tank monitoring and inventory management system. As part of this project, a public CNG dispenser will be added and funded by a Valley Transit Authority (VTA) grant. PROJECT JUSTiFiCATiON The existing above ground fuel storage tanks at the Municipal Services Center are more than 30 years old need replace- ment. The vapor recovery system, among others, is inoperative and cannot be repaired. There is also a substantial amount of corrosion on the interior surfaces of the tanks, which has resulted in a significant ongoing expense for fuel cleaning and filtration to remove particulate matter that could damage vehicle fuel systems. The existing fuel service island is inefficient and inadequate for the current usage level, resulting in significant delays for users. FUTURE FiNANCiAL REQUIREMENTS FISCAL YEAR PY Budget: as of PY actual 6/30/2008 2008-09 2009-10 2010-11 2011-12 2012-13 AMOUNT $1,802,030 $1,414,012 751,325 COMPONENTS Design and construction Construction Sources of Funding: Equipment Replacement Fund and VTA Grant ($300,00) 200]-03 Budget iMPACT AND SUPPORT ANALYSIS Environmental: Design Elements: Operating: Telecommunications: This project is subject to state and federal regulations related to underground fuel storage tanks and dispensing systems, as well as oversight by the Santa Clara Valley Water Dis- trict under the Leaking Underground Storage Tank Oversight Program (LUSTOP). System design will be provided by Equipment Management staff, working with an engi- neering consultant. The above-ground component of this project may be subject to review by the Architectural Review Board. Ongoing maintenance Local area network for authorization system. COMPREHENSIVE PLAN This project furthers Policy N-21; Policy N-25; Policy N-26, Policy N-27, and Program N-40 of the Comprehensive Plan. ATTACHMENT C FORMAL CONTRACT SECTION 500 CONTRACT No. C09124683 (Public Work) Public Works Department This Contract, number C09124683 dated is entered into by and between the City of Palo Alto, a charter city and a municipal corporation of the State of California ("City"), and American Construction and Environmental Services, 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 filed, 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:Integrated Fueling Facility- CNG, Invitation for Bids (IFB) No. 124683. Bid:$702,076.00 (Seven hundred two thousand seventy-six hundred dollars) (Total includes Base Bid only) 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 (most current version). 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 (most current version). 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 (most current version), or, if no time is stated, within thirty (30) Days of the date of receipt of Contractor’s invoices. 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 CITY OF PALO ALTO rev. 12/00 CONTRACT C09124683 PAGE1 OF7 FORMAL CONTRACT SECTION 500 Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting coverage required under this Contract on or before the Date of Execution. The certificates and endorsements for each insurance policy shall be signed by a person who is authorized by that insurer to bind coverage in its behalf. Proof of insurance shall be mailed to the Project Manager to the address set forth in Section 16 of this Contract. 10. 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, ))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, 9~25249.5-25249.13, 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. 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. 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 security 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. CITY OF PALO ALTO CONTRACT C09124683 PAGE 2 OF 7rev. 12/00 FORMAL CONTRACT SECTION 500 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 Bids. 12.Representations 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 sce pe of the Project and Work shall be free of defects in workmanship for a period of one (1) year after the recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder; Any manufacturer’s warranty obtained by Contractor shall be obtained or shall be deemed obtained by Contractor for and in behalf of City. Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request, whether or not submitted under a continuing obligation by the terms of the Contract to do So, is true and correct at the time such information is submitted or made available to the City; Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to the terms and conditions of Contractor’s Bid, except as may be permitted by the Invitation For Bid; g=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; 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 furnis,h 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. 13. 14. Assiqnment. 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 CITY OF PALO ALTO rev. 12/00 CONTRACT C09124683 PAGE 3 OF 7 FORMAL CONTRACT SECTION 500 to City. 15. 16. Audits by City. During the term of this Contract and for a period of not less than three (3) years after the 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. 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 (1), (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 Public Works Department Engineering Division P.O. Box 10250 Palo Alto, CA 94303 Young Tran, Project Manager To Contractor:American Construction and Environmental Services, Inc. 161 Chestnut Street, Suite 23 Brentwood, CA 94513 Attn: Bailey Neff 17.Appropriation of City Funds. This Contract is subject to the fiscal provisions of Article III, Section 12 of the Charter of the City of Palo Alto. Any charges hereunder for labor, services, materials and equipment may accrue only after such expenditures have been approved in advance in writing in accordance with applicable Laws. This Contract shall terminate without penalty (I) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or,(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. bo Consent. Whenever in this Contract the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent. Co 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 (most current version) of this Contract are incorporated CITY OF PALO ALTO CONTRACT C09124683 PAGE 4 OF 7 rev. 12/00 FORMAL CONTRACT herein by reference, SECTION 500 eo Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to perform its obligations under this Contract which directly results from an Act of God or an act of a superior governmental authority. Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the construction or interpretation of any part of this Contract. g=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 stipulation in the Contract shall define or otherwise control, establish, or limit the performance required or permitted or to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. ko Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or other writing, whicl~ 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 or 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. CITY OF PALO ALTO rev. 12/00 CONTRACT C09124683 PAGE 5 OF 7 FORMAL CONTRACT SECTION 50O 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 in the United States District Court for the Northern District of California. 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 California 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 or 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 AS TO FORM:CITY OF PALO ALTO Senior Assistant City Attorney City Manager APPROVED:CONTRACTOR: Director of Administrative Services Director of Public Works By: N~me: Title: By:. Name: Title: (Compliance with California Corporations Code ) 313 is required if the entity on whose behalf this contract is signed is a corporation. In the alternative, a certified corporate resolution attesting to the signatory authority of the individuals signing in their respective capacities is acceptable) CITY OF PALO ALTO CONTRACT C09124683 PAGE 6 OF 7 rev. 12/0o FORMAL CONTRACT SECTION 500 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code ~ 1189) STATE OF COUNTY OF On , before me,a notary public in and for said County, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) CITY OF PALO ALTO rev. 12/00 CONTRACT C09124683 PAGE 7 OF 7 ZLU LU Z - ATTACHMENT D CERTIFICATION OF NONDISCRIMINATION ATTACHMENT E FORM 410 PROJECT:Integrated Fuelin.q Facility- CNG Certification of Nondiscrimination: As suppliers of goods and/or services to the City of Pato Alto in excess of $5,000, the firm, contractor or individual(s) listed below certify that: they do not and in the performance of ’(his contract they will 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, weightor 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 Signing: ..__~ (’4 Signature: CITY OF PALO ALTO - IFB 124683 PAGE 1 OF I