HomeMy WebLinkAboutStaff Report 225-10TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: UTILITIES
DATE: MAY 3, 2010 CMR: 225:10
REPORT TYPE: CONSENT
SUBJECT: Approval of a Utilities Enterprise Fund Contract with All Day
Electric Company, Inc. in the Total Amount of $561,458 for a 4kV to
12kV CelPiersioB Capital ImpFo.,\,llmllut Projed ill tbe ;\ rea Between
Alma Street, Middlefield Road, Loma Verde Avenue and East
Meadow Drive (CIP: EL-08002)
RECOMMENDATION
Staff recommends that Council:
L Approve and authorize the City Manager to execute thc attached contract with All Day
Eiet-iric Company, in the total amount of $561,458 for the Ele<-iric Utility Capital
Improvement Program 4kV to 12kV conversion project of City's overhead electric
distribution system in the area between Alma Street, Middlefield Road, Lorna Verde
Avenue and East Meadow Drive.
2. Authorize the City Manager or his designee to negotiate and execute one or more change
orders to the contract with All Day Electric Company, Inc. for related, additional but
unforeseen, work which may develop during the project; the total of which shall not
exceed $56,000.
Project Description
This project involves the replacement of aging electric 4kV system components with new
components that will operate at 12kV. The neighborhood included in this project has been
identified as needing this construction to prevent the power outages exacerbated by aging 4kV
equipment. Furthermore, thc electric equipment supplying this 4kV system is approaching the
end of its useful life. The Utilities Department is upgrading the 4k V system to a 12k V system
gradually as part of the ongoing Capital Improvement Program (CIP). This particular project is
included in the fiscal year 2009/2010 CIP progranl. The conversion from 4kV to 12kV will
improve energy efficiency due to a reduction in electric distribution losses. The work typically
involves changing out the 4kV transformers, fuses, insulators and other line hardware for l2kV
operation.
CMR: 225:10 Page 1 of3
·j
I
i ,
The design of the overhead 4k V lines to 12k V planned for the current fiscal year (shown as area
C3 in the 2009/2014 CIP Map between Alma Street, Middlefield Road, Lorna Verde Avenue and
East Meadow Drive; see attachment "C") has been completed by the City staff in-house and all
the materials will be procured by the City.
'The work to be performed under this contract is for construction activities to convert the 4k V
system to 12k V and includes labor, equipment and management of all field activities in
coordination with City's operations staff. This part of the project is being contracted out because
there are insufficient resources in the department to complete a projeet of this size,
ummarvo I S fB'dP rocess
II Bid NameINumber Electric Distribution System Improvement -4kV to 12kV .
Conversiol1 Project IIFB-134537 .
Proposed Length of Project 3 months
Number of Bids Mailed to 14
Contractors :
; Number of Bids Mailed to Builder's: 11
I~ otalDavs to Respond to Bid 21
Pre-Bid Meeting ......... Yes
Number of Company Attendees at 15
Pre-Bid Mtle!ting
Number of Bids Received: 8'
i Bid Price Range • From $466,265.90 to $1.18 million
'Bld summary prOVided In Attachment B,
As shown in the bid summary, Attachment B, Diversified Utility Services submitted a bid in the
amount of $ 466,265, but has withdrawn their bid. Staff has reviewed all bids submitted and
recommends that the bid of $ 561,458 submitted by All Day Electric Company, Inc, be accepted
and that All Day Electric Company, Inc. be declared the lowest responsible bidder. The All Day
Electric Company bid is approximately 25% percent bclow the engineer's estimate of $750,000.
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 all to be satisfactory.
RESOURCE IMPACT
Funds for 4-12k V capital improvement projects are available in FY2009-20 IO Electric Capital
Improvement Program (EL-08002) budget. .
POLICY IMPLICATIONS
:
The approval of this contract is consistent with existing City policies, including the Council
approved Utilities Strategic Plan to operate the distribution sy,iem in a cost effective marmer and
to invest in utility infrastructure to deliver reliable service. '
CMR:225:10 Page 2 of3
ENVIRONMENTAL REVIEW
This project is categorically exempt from California Environmental Quality Act (CEQA)
pursuant to Section 15301 of the California Code of Regulations (operation, repair, minor
alteration of existing public facilities) and Section 15302 (replacement or reconstruction of
existing facilities).
ATT ACHMEI\'TS
A: Contract
B: Bid Summary
C. Electric Utility CIP Map
PREPARED BY:
REVIEWED BY:
APPROVED BY:
CITY MANAGER APPROVAL:
CMR: 225:10
JIMP ACHIKARA -;jf
Power Engineer~
TOM FINCH
Sr. Electric Proj Engineer
TOMMMARSHAL~
~:"Woo~l"
Page 3 00
ATTACHMENT A .
CONSTRUCTION CONTRACT
Contract No. C10134537
City of Palo Alto
and
All Day Electric Company, Inc.
PRO .. IECT
ELECTRIC DISTRIBUTION SYSTEM
IMPROVEMENT -4kV-12kV CONVERSION
PROJECT
Rev. December 1, 2009
SECTION 1.
CONSTRUCTION CONTRACT
TABLE OF CONTENTS
INCORPORATION OF RECITALS AND DEFINITIONS .................................... 1
1.1 Recitals ................................................................................................................................ 1
1.2 Definitions ........................................................................................................................... 1
SECTION 2. THE PROJECT ................................................................................................... 1
SECTION 3. THE CONTRACT DOCUMENTS ........................................................................ 1
LIST OF DOCUMENTS ..................................................................................................................... 1
3.2 ORDER OF PRECEDENCE ............................................................................... 2
SECTION 4. THE WORK ......................................................................................................... 2
SECTION 5. PROJECT TEAM ................................................................................................ 2
SECTION 6. TIME OF COMPLETION ..................................................................................... 3
6.1 Time Is of Essence ............................................................................................................. 3
6.2 Commencement of Work ................................................................................................... 3
6.3 Contract Time ...................................................................................................................... 3
6.4 Liquidated Damages ........................................................................................................... 3
6.4.1 Enlitlemenl ................................................................................................................... 3
6.4.2 Daily Amounl.. .............................................................................................................. 3
6.4.3 Exclusive Remedy ........................................................................................................ 3
6.4.4 Other Remedies ........................................................................................................... 3
6.5 Adjustments to Contract Time .......................................................................................... 3
SECTION 7. COMPENSATION TO CONTRACTOR .............................................................. 2
7.1 Contract Sum ...................................................................................................................... 2
7.2 Full Compensation .............................................................................................................. 2
7.3 Compensation for Extra or Deleted Work ........................................................................ 2
7.3.1 Self Performed Work .................................................................................................... 2
7.3.2 Subcontractors ............................................................................................................. 2
Construction Contract Rev. December 1. 2009
SECTION 8. STANDARD OF CARE ....................................................................................... 2
SECTION 9. INDEMNIFICATION .....•...••••..••••...••.•••..•.••.•••••••.••••.••.••••.•••.•••...•......................... 5
9.1 Hold Harmless ..................................................................................................................... 5
9.2 Survival. ..••............................................•..•...•••••••.•••..•••..••..••..••.•••..••..•••..•••.•••....•..••............. 5
SECTION 10 NONDISCRIMINATION ••..••••••••••..••..•••.••••....•..•.....•............•.•...••.•••...•••..••...•••..•• 5
SECTION 11. INSURANCE AND BONDS •.••..•••.•.••.•••................•...•..•••••...••.••••..•••.••••..••...••••..• 5
SECTION 12. PROHIBITION AGAINST TRANSFERS .••...••.•••••••.••.•••••••..•••.•••...••...•.............•.• 5
SECTION 13. NOTICES ............................................................................................................ 6
13.1 Method of Notice ................................................................................................................. 6
13.2 Notice Recipients ................................................................................................................ 6
13.3 Change of Address •.•••••••••..••.•••.•••.••••..•••...•••.••.•••..•..............•.........•...•..•••••..••..••••..•••...•••••• 6
14.1 Resolution of Contract Disputes •.••...•••...•••..•...••..••••.••.•••••••..•••.••••••..•••..•.•.......................• 6
14.2 Resolution of Other Disputes •..•••.••...•••.•.•..•••..••..•••..•..............................•........•..•••.•.•••.•••. 7
14.2.1 Non-Contract Disputes ................................................................................................. 7
14.2.2 Litigation, City Election ................................................................................................. 7
14.3 Submission of Contract Dispute .................................................................. : .................... 7
14.3.1 By Contractor ............................................................................................................... 7
14.3.2 By City .......................................................................................................................... 8
14.4 Contract Dispute Resolution Process .............................................................................. 8
14.4.1 Direct Negotiations ....................................................................................................... 8
14.4.2 Deferral of Contract Disputes ....................................................................................... 8
14.4.3 Mediation ...................................................................................................................... 8
14.4.4 Binding Arbitration ........................................................................................................ 9
14.5 Non-Waiver ................................................................................................................. : ...... 10
SECTION 15. DEFAULT .......................................................................................................... 10
15.1 Notice of Default ............................................................................................................... 10
15.2 Opportunity to Cure Default ............................................................................................. 10
SECTION 16. CITY'S RIGHTS AND REMEDIES .................................................................... 10
16.1 Remedies Upon Default ................................................................................................... 10
16.1.1 Delete Certain Services ............................................................................................. 11
16.1.2 Perform and Withhold ................................................................................................ 11
Construction Contract ii Rev. December 1, 2009
16.1.3
16.1.4
16.1.5
16.1.6
Suspend The Construction Contract .......................................................................... 11
Terminate the Construction Contract for Defaul!... ..................................................... 11
Invoke the Performance Bond .................................................................................... 11
Additional Provisions .................................................................................................. 11
16.2 Delays by Sureties ............................................................................................................ 11
16.3 Damages to City ................................................................................................................ 12
16.3.1 ForContracto~s Default ............................................................................................. 12
16.3.2 Compensation for Losses .......................................................................................... 12
16.5 Suspension by City for Convenience ...••..•••.••••...•••.•.•••..•••.••.•••••••.•••..•••...•••...•••..•••.•.....• 12
16.6 Termination Without Cause ............................................................................................. 12
16.6.1 Compensation ............................................................................................................ 12
16.6.2 Subcontractors ........................................................................................................... 13
16.7 Contractor's Duties Upon Termination ........................................................................... 13
SECTION 17. CONTRACTOR'S RIGHTS AND REMEDIES .................................................. 13
17.1 Contractor's RemedIes .................................................................................................... 13
17.1.1 For Work Stoppage .................................................................................................... 13
17.1.2. For City's Non-Payment ............................................................................................. 13
17.2 Damages to Contractor .................................................................................................... 14
SECTION 18. ACCOUNTING RECORDS ............................................................................... 14 .
18.1 Financial Management and City Access ......................................................................... 14
18.2 Compliance with City Requests ...................................................................................... 14
SECTION 19. INDEPENDENT PARTIES ................................................................................ 14
SECTION 20. NUiSANCE ........................................................................................................ 14
SECTION 21. PERMITS AND LICENSES ............................................................................... 14
SECTION 22. WAiVER ............................................................................................................ 14
SECTION 23 GOVERNING LAW ........................................................................................... 15
SECTION 24 COMPLETE AGREEMENT .............................................................................. 15
SECTION 25 SURVIVAL OF CONTRACT ............................................................................. 15
SECTION 26 PREVAILING WAGES ...................................................................................... 15
Construction Contract iii Rev. December 1, 2009
SECTION 27
SECTION 28
SECTION 29
SECTION 30
Construction Contract
NON APPROPRIATION ................................................................................... 15
GOVERNMENTAL POWERS ........................................................................... 15
ATTORNEY FEES ............................................................................................ 15
SEVERABILITY ................................................................................................ 16
Iv Rev. Decernberl.2009
CONSTRUCTION CONTRACT
THIS CONSTRUCTION CONTRACT entered into on May 3, 2010 ("execution Date") by and
between the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and All Day
Electric Company, Inc., 1350 Hayes Street, Suite B 12, Benicia, CA 9451 0 ("Contracto~'), is made wHh
reference to the following:
R E C ITA LS:
A. City Is a municipal corporation duly organized and validly existing under the laws of the
State of California wHh the power to carry on Its business as It is now being conducted under the
statutes of the State of California and the Charter of City.
B. Contractor is a Calffornia Corporalion duly organized and in good standing In the Stale
of California, Contractor's License Number 838026. Contractor represents that It Is duly licensed by the
State of California and has the baCkground, knowledge, experience and expertise to perform the
obligations set forth In this Construction Contract.
C. On January 26, 2010, City Issued an InvHation for Bids (IFB) to contractors for the
Electric Distribution System Improvement -4kV to 12 kV ("Project',). In response to the IFB,
Contractor submitted a bid.
U. City and Contractor deSire to enterlmo this COnStiUctlon Contract for tile 1910jecl, arid
other services as identified In the Bid Documents for the Project upon the following terms and
condHlons.
NOW THEREFORE, In consideration of the mutual promises and undertakings hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it Is mutually agreed by and between the undersigned parties as follows:
SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS.
1.1 Recitals.
All of the recHals are Incorporated herein by reference.
1.2 Definitions.
CapHalized terms shall have the meanings set forth In this Construction Contract andlor In the
General CondHlons. Ifthere Is a conflict between the definitions In this Construction Contract
and In the General Conditions, the definnlons In this Construction Contract shall prevail.
SECTION 2 THE PROJECT.
The Project Is the construction of the Electric Distribution System Improvement - 4 kV to 12 kV
("Project").
SECTION 3 THE CONTRACT DOCUMENTS.
3.1 List of Documents.
The Contract Documents (sometimes collectively referred to as "Agreemenf' or "Bid Documents")
consist of the following documents which are on file wHh the Purchasing Division and are hereby
Incorporated by reference.
1) Change Orders
2) Field Change Orders
3) Contract
Construction Contract 1 Rev. December 1, 2009
4) Project Plans and Drawings
5 ) Technical Specifications
6) Special Provisions
7) Notice Inviting Bids
B) Instructions to Bidders
9) General CondHlons
10) Bidding Addenda
11) Invitation for Bids
12) Contractor's BidlNon-Coliusion AffidavH
13) Reports listed In the Bidding Documents
14) Public Works Department's Standard Drawings and Specifications dated 2007 and
from lime to time
15) Utilities Department's Water, Gas, Wastewater, Electric Utilities Standards dated
2005 and updated from time to time
16) City of Palo AHo Traffic Control Requirements
17) Cily of Palo AHo Truck Route Map and Regulations
16) Notice Inviting Pre-Qualification Statements, Pre-Quallflcation Statement, and Pre
Qualification Checklist (if applicable)
19) Performance and Payment Bonds
20) Insurance Forms
3.2 Order of Precedence.
For the purposes of construing, interpreting and resolving inconsistencies between and among ~the
provisions of this Contract, the Contract Documents shall have the order of precedence as set forth in
the preceding section. If a claimed Inconsistency cannot be resolved through the arderof precedence,
the City shall have the sole power to decide which document or provision shall govern as may be in the
best interests of the City.
SECTION 4 THE WORK.
The Work includes all labor, materials, equipment, services, permits, fees, licenses and taxes, and all
other things necessary for Contractor to perform Its obligations and complete the Project, including,
without limitation, any Changes approved by City, in accordance with the Contract Documents and all
Applicable Code Requirements.
SECTIONS PROJECT TEAM.
In addition to Contractor, City has retained, or may retain, consultants and contractors to provide
professional and technical consultation for the design and construction of the Project. The Project
requires that Contractor operate efficiently, effectively and cooperatively with CRy as well as all other
Construction Contract 2 Rev. December 1, 2009
members of the Project Team and other contractors retained by City to construct other portions of the
Project.
SECTION 6 TIME OF COMPLETION.
6.1 Time Is of Essence.
Time is of the essence with respect to all time limits set forth in the Contract Documents.
6.2 Commencement of Work.
Contractor shall commence the Work on the date specified in City's Notice to Proceed.
6.3 Contract Time.
Work hereunder shall begin on the date specified on the City's Notice to Proceed and shall be
completed
D not later than I8J within Ninety calendar days (90) after the commencement date specified in City's
Notice to Proceed.
6.4 Liquidated Damages.
6.4.1 Entitlement.
City and Contractor acknowledge and agree that if Contractor fails to fully and
satisfactorily complete tRe Work ",itRiR tRQ CORtract Time, City "'ill suffer, as a result
of Contractor's failure, substantial damages which are both extremely difficult and
impracticable to ascertain. Such damages may include, but are not limited to:
(i) Loss of public confidence in City and its contractors and consultants.
(ii) Loss of public use of public facilities.
(iii) Extended disruption to public.
6.4.2 Daily Amount.
City and Contractor have reasonably endeavored, but failed, to ascertain the actual
damage that City will incur if Contractor fails to achieve Substantial Completion of the
entire Work within the Contract Time. Therefore, the parties agree that in addition to
all other damages to which City may be entitled other than delay damages, in the
event Contractor shall fail to achieve Substantial Completion of the entire Wor!< within
the Contract Time, Contractor shall pay City as liquidated damages the amount of
$500 per day for each Day occurring after the expiration of the Contract Time until
Contractor achieves Substantial Completion of the entire Work. The liquidated
damages amount is not a penalty but considered to be a reasonable estimate of the
amount of damages City will suffer by delay in completion of the Work.
6.4.3 Exclusive Remedy.
City and Contractor acknowledge and agree that this liquidated damages provision
shall be City's only remedy for delay damages caused by Contractor's failure to
achieve Substantial Completion of the entire Work within the Contract Time.
6.4.4 Other Remedies.
City is entitled to any and all available legal and equitable remedies City may have
where City's Losses are caused by any reason other than Contractor's failure to
achieve Substantial Completion of the entire Work within the Contract Time.
6.5 Adjustments to Contract Time.
The Contract Time may only be adjusted for time extensions approved by City and agreed to
by Change Order executed by City and Contractor in accordance with the requirements of the
Contract Documents.
Construction Contract 3 Rev. December 1, 2009
SECTION 7 COMPENSATION TO CONTRACTOR.
7.1 Contract Sum.
Contractor shall be compensated for satisfactory completion of the Work in compliance with
the Contract Documents the Contract Sum of Five Hundred Sixty One Thousand Four
Hundred Fifty Eight Dollars ($561,458.00).
7.2 Full Compensation.
The Contract Sum shall be full compensation to Contractor for all Work provided by Contractor
and, except as otherwise expressly permitted by the terms of the Contract Documents, shall
cover all Losses arising out of the nature of the Work or from the acts of the elements or any
unforeseen difficulties or obstructions which may arise or be encountered In performance of
the Work until Its Acceptance by City, all risks connected with the Work, and any and all
expenses Incurred due to suspension or discontinuance of the Work. The Contract Sum may
only be adjusted for Change Orders Issued, executed and satisfactorily performed In
accordance with the requirements of the Contract Documents.
7.3 Compensation for Extra or Deleted Work.
The Contract Sum shall be adjusted (either by addition or credit) for Changes in the Work
involving Extra Work or Deleted Work based on one or more of the following methods to be
selected by City:
1 By ao acceptable Itunp SlIm proposal fmm Contractor
2. By unit prices contained in the Contractor's Bid and incorporated in the Contract
Documents.
3. The sum of Allowable Costs as defined In Paragraph 7.2.5 of the General Conditions
to be added (for Extra Work) or credited (for Deleted Work) and an additional sum (for
Extra Work) or deductive credit (for Deleted Work) based on Contractor Markup and
Subcontractor/Sub-subcontractor Markups allowable pursuant to this Section.
Contractor Markup and Subcontractor/Sub-subcontractor Markups sat Iorth herein are the full
amount of compensation to be added for Extra Work orto be subtracted for Deleted Work that
Is attributable to overhead (direct and Indirect) and profit of Contractor and of its
Subcontractors and Sub-subcontractors, of every Tier. When using this payment
methodology, Contractor Markup and Subcontractor/Sub-subcontractor Markups, which shall
not be compounded, shall be computed as follows:
7.3.1 Markup Self-Performed Work.
10% of the Allowable Costs lor that portion of the Extra Work or Deleted Work to be
performed by Contractor with Its own forces.
7.3.2 Markup for Work Performed by Subcontractors.
15% of the Allowable Costs for that portion ofthe Extra Work or Deleted Work to be
performed by a first Tier Subcontractor.
SECTION 8 STANDARD OF CARE.
Contractor agrees that the Work shall be perfonned by qualified, experienced and well-supervised
personnel. All services performed In connection with this Construction Contract shall be performed in a
manner consistent with the standard of care under California law applicable to those who specialize in
providing such services for projects of the type, scope and complexity of the Project.
Construction Contract 2 Rev, December 1. 2009
SECTION 9 INDEMNIFICATION.
9.1 Hold Harmless.
To the fullest extent allowed by law, Contractor will defend, indemnify, and hold harmless City,
its City Council, boards and commissions, officers, agents, employees, representatives and
volunteers (hereinafter collectively referred 10 as "Indemnitees"), through legal counsel
acceptable to City, from and against any and all Losses arising direcUy or indirectly from, or in
any manner relating to any of, the following:
(i) Performance or nonperformance of the Wor!< by Contractor or its Subcontractors or
Sub-subcontractors, of any tier;
(ii) Performance or nonperformance by Contractor or its Subcontractors or Sub
subcontractors of any tier, of any of the obligations under the Contract Documents;
(iii) The construction activHies of Contractor or Hs Subcontractors or Sub-subcontractors,
of any tier, either on the Site or on other properties;
(Iv) The payment or nonpayment by Contraclor to any of its employees, Subcontractors or
Sub-subcontractors of any tier, for Wor!< performed on or off the Site for the Project;
and
(v) Any personal injury, property damage or economic loss to third persons associated
with the performance or nonperformance by Contractor or its Subcontractors or Sub
subcontractors of any tier, of the Wor!<.
However, nothing herein shan obligate Contractor to indemnify any Indemnitee or active
negligence or willful misconduct of the Indemnitee. Contractor shall pay City for any costs City
incurs to enforce this provision. Nothing in the Contract Documents shall be construed to give
rise to any implied right of indemnity in favor of Contractor against City or any other
Indemnitee. .
9.2 Survival.
The provisions of Section 9 shall survive the termination of this Construction Contract.
SECTION 10 NONDISCRIMINATION.
As set forth in Palo Alto Municipal Code section 2.30.510, Contractor certifies that in the performance
of this Agreement, it shall not discriminate in the employment of any person because of the race, skin
color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status,
marital status, familial status, weight or height of such person. Contractor acknowledges that It has
read and understands the provisions of Section 2,30.510 of the Palo Alto Municipal Code relating to
Nondiscrimination Requirements and the penatties for violation thereof, and will comply wHh all
requirements of Section 2.30,510 pertaining to nondiscrimination In employment
SECTION 11 INSURANCE AND BONDS.
On or before the Execution Date, Contractor shall provide City with evidence that tt has obtained
Insurance and Performance and Payment Bonds sallsfying all requirements in Article 11 of the General
Condttions, Failure to do so shall be deemed a material breach of this Construction Contract.
SECTION 12 PROHIBITION AGAINST TRANSFERS.
City is entering Into this Construction Contract based upon the stated experience and qualifications of
the Contractor and its subcontractors set forth in Contractor's Bid, Accordingly, Contractor shall not
assign, hypothecate or transfar this Construction Contract or any interest therein directly or indirectly,
by operation of law or otherwise without the prior written consent of City. Any assignment,
hypothecation or transfer without said consent shall be null and void,
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of
Contractor or of any general partner or joint ventures or syndicate member of Contractor, If the
Contractor is a partnership or joint venture or syndicate or co-tenancy shall rasuH in changing the
Construction Contract 5 Rev. December 1, 2009
control of Contractor, shall be construed as an assignment of this Construction Contract. Control
means more than fifty percent (50%) of the voting power of the corporation or other entity.
SECTION 13 NOTICES.
13.1 Method of Notice.
All notices, demands, requests or approvals to be given under this Construction Contract shall
be given In writing and shall be deemed served on the earlier ofthe following:
(I) On the date delivered If delivered personally;
(Ii) On the third business day after the deposit thereof in the United States mail, postage
prepaid, and addressed as hereinafter provided;
(iIi) On the date sent if sent by facsimile transmission;
(Iv) On the date sent If delivered by electronic mail; or
(Iv) On the date it is accepted or rejected If sent by certified mail.
13.2 Notice Recipients.
All notices, demands or requests (Including, without limitation, Claims) from Contractor to City
shall Include the Project name and the number of this Construction Contract and shall be
addressed to City at:
To City·
Copy to:
City of palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
City of Palo Alto
Utilities Engineering
1005 Eiwell Court
Palo Alto, CA 94303
Attn: Jimmy Pachlkara
In addition, copies of all Claims by Contractor under this Construction Contract shall be
provided to the following:
Palo AHo City Attomey's Office
250 Hamilton Avenue
P.O. Box 10250
Palo AHo, California 94303
All Claims shall be delivered personally or sent by certified mail.
All notices, demands, requests or approvals from City to Contractor shall be addressed to:
Jim Pachikara
13.3 Change of Address.
In the event of any change of address, the moving party shall notify the other party of the
change of address In writing. Each party may, by written notice only, add, delete or replace
any Individuals to whom and addresses to which notice shall be provided,
SECTION 14 DISPUTE RESOLUTION.
14.1 Resolution of Contract Disputes.
Contract Disputes shall be resolved by the parties in accordance with the provisions of this
Section 14, In lieu of any and all rights under the law that either party have its rights
ConstnJction Contract 6 Rev. December 1. 2009
adjudged by a trial court or jury. All Contract Disputes shall be subject to the Contract
Dispute Resolution Process set forth in this Section 14, which shall be the exclusive
recourse of Contractor and City for such Contract Disputes.
14.2 Resolution of Other Disputes.
14.2.1 Non-Contract Disputes.
Contract Disputes shall not include any of the following:
(i) Penalties or forfeitures prescribed by statute or regulation imposed by a
govemmental agency;
(Ii) Third party tort claims for parsonal injury, property damage or death relating
to any Wor!<. performed by Contractor or its Subcontractors or Sub
subcontractors of any tier;
(iii) False claims liability under California Government Code Section 12650, et.
seq.;
(Iv) Defects in the Work first discovered by City after Final Payment by City to
Contractor;
(v) Stop notices; or
(vi) The right of City to specific performance or injunctive relief to compel
parformance of any provision of the Contract Documents.
1422 Litigation, City Election
Matters that do not constitute Contract Disputes shall be resolved byway of an action
flied In the Superior Court of the State of California, County of Santa Clara, and shall
not be subject to the Contract Dispute Resolution Process. However, the City
reserves the right, In its sole and absolute discretion, to treat such disputes as
Contract Disputes. Upon written notice by City of its election as provided In the
preceding sentence, such dispute shall be submitted by the parties and finally decided
pursuant to the Contract Dispute Resolution Process in the manner as required for
Contract Disputes, including, without limitation, City's right under Paragraph 14.4.2 to
defer resolution and final determination until after Final Completion of the Work.
14.3 Submission of Contract Dispute.
14.3.1 By Contractor.
Contractors may commence the Contract Dispute Resolution Process upon City's
written response denying all or part of a Claim pursuantto Paragraph 4.2.9 Or 4.2.1 0
of the General Conditions. Contractor shall submH a written Statement of Contract
Dispute (as set forth below) to City within seven (7) Days after City rejects all or a
portion of Contractor's Claim. Failure by Contractor to submit Its Statement of
Contract Dispute In a timely manner shall result in City's decision by City on the Claim
becoming final and binding. Contractor's Statament of Contract Dispute shall be
signed under penalty of perjury and shall stata with specificity the events or
circumstances giving rise to the Contract Dispute, the dates of their occurrence and
the asserted effect on the Contract Sum and the Contract Time. The Statement of
Contract Dispute shall Include adequate supporting data to substantiate the disputed
Claim. Adequate supporting data for a Contract Dispute relating to an adjustment of
the Contract Time shall Include both of the following:
(i) All of the scheduling data required to be submitted by Contractor under the
Contract Documents to obtain extensions of time and adjustments to the
Contract Time and
(iI) A detailed, event-by-event description of the impact of each event on
completion of Work. Adequate data to support a Statement of Contract
Dispute involving an adjustment of the Contract Sum must include both of the
following:
(a) A detailed cost breakdown and
Construction Contract 7 Rev. December 1, 2009
(b) Supporting cost data in such form and including such InfollT1ation and
other supporting data as required under the Contract Documents for
submission of Change Order Requests and Claims.
14.3.2 By City.
City·s ~ght to commence the Contract Dispute Resolution Process shall a~se at any
lime follOWing CUy's actual discovery of the circumstances giving rise to the Contract
Dispute. City asseris Contract Disputes in response to a Contract Dispute asserted
by Contractor. A Statement of Contract Dispute submitted by City shall state the
events or circumstances giving rise to the Contract Dispute, the dates of their
occurrence and the damages or other relief claimed by CUy as a resuR of such events.
14.4 Contract Dispute Resolution Process.
The parties shall utilize each of the following steps in the Contract Dispute Resolution
Process in the sequence they appear below. Each party shall participate fully and in
good faith in each step in the Contract Dispute Resolution Process, and good faith
effort shall be a condition precedent to the right of each party to proceed to the next
step in the process.
14.4.1 Direct Negotiations.
Designated representatives of City and Contractor shall meet as soon as possible (but
not later than ten (10) Da)Is after receipt ot the Statement of Contract Disputel in a
good faith effort to negotiate a resolution to the Cootract Dispute. Each party shall be
represented in such negotiations by an authorized representstive with full knowledge
of the details of the Claims or defenses being asserted by such party In the
negotiations, and with full authority to resolve such Contract Dispute then and there,
subject only to Clty's obligation to obtain administrative andlor City Council approval
of any agreed settlement or resolution. If the Contract Dispute Involves the assertion
of a right or claim by a Subcontractor or Sub-subcontractor, of any tier, against
Contractor that is in tum being asserted by Contractor against City ("Pass-Through
Claim"), then the Subcontractor or Sub-Subcontractor shall also have a
representative attend the negotiations, with the same authority and knowledge as
described above. Upon completion of the meeting. if the Contract Dispute is not
resolved, the parties may arrher continue the negotiations or any party may declare
negotiations ended. Ail discussions that occur during such negotiations and all
documents prepared solely for the purpose of such negotiations shall be confidential
and privileged pursuant to Califomia Evidence Coda Sections 1119 and 1152.
14.4.2 Deferral of Contract Disputes.
FollOWing the completion of the negotiations required by Paragraph 14.4.1, all
unresolved Contract Disputes shall be deferred pending Final Completion of the
Project, subject to City's right, in its sole and absolute discretion, 10 require that the
Contract Dispute Resolution Process proceed prior to Final Completion. Ail Contract
Disputes that have been deferred until Final Completion shall be consolidated within a
reasonable time after Final Completion and thereafter pursued to resolution pursuant
to Ihis Contract Dispute Resolution Process. The parties can continue infollT1sl
negotiations of Contract Disputes; provided, however, that such informal negotiations
shall not be alter the provisions of the Agreement deferring final determination and
resolution of unr:esolved Contract Disputes until after Final Completion.
14.4.3 Mediation.
If the Contract Dispute remains unresolved after negotiations pursuant to Paragraph
14.4.1, the parties shall submit the Contract Dispute to non-binding mediation before
a mutually acceptable third party mediator.
Construction Contract 8 Rev. December 1, 2009
.1 Qualifications of Mediator. The parties shall endeavor to select a mediator
who is a retired Judge or an attorney with at least fIVe (5) years of experience
in public works construction contract law and in mediating public works
construction disputes. In addition, the mediator shall have at least twenty
(20) hours of formal training In mediation skills.
>
.2 Submission to Mediation and Selection of Mediator. The party initiating
mediation of a Contract Dispute shall provide written notice to the other party
of Its decision to mediate. In the event the parties are unable to agree upon a
mediator within fifteen (15) Days after the receipt of such written notice, then
the parties shall submit the matter to the American Arbitration Association
(AAA) at its San Francisco Regional Office for selection of a mediator in
accordance wHh the AAA Construction Industry Mediation Rules .
• 3 Mediation Process. The location of the mediation shall be at the offices of
City. The costs of mediation shall be shared equally by both parties. The
mediator shall provide an independent assessment on the merits of the
Contract Dispute and recommendations for resolution. All discussions that
occur during the mediation and all documents prepared solely forthe purpose
of the mediation shall be confidential and privileged pursuant to California
Evidence Code Sections 1119 and 1152.
14.4A Binding Arbitration.
If tha Contract Dispute is not resolved by mediation, than any party may submit the
Contract Dispute for final and binding arbitration pursuant to the provisions of
California Public Contract Code Sections 10240, at saq. The award of tha arbitrator
therein shall be final and may be entered as a judgment by any court of competent
jurisdiction. Such arbitration shall be conducted In accordance with the following:
.1 Arbitration Initiation. The arbitration shall be initiated by filing a complaint
in arbitration in accordance with the regulations promulgated pursuant to
Califomla Public Contract Code Section 10240.5 •
• 2 Qualifications of the Arbitrator. The arbitrator shall be approved by all
parties. The arbitrator shall be a retired judge or an attomey with at least fIVe
(5) years of experience in public works construction contract law and in
arbitrating public works construction disputes. In addHlon, the arbHrator shall
have at least twenty (20) hours of fomnal training in arbitration skills. In the
event the parties cannot agree upon an arbitrator. the provisions of California
Public Contract Code Section 10240.3 shall be followed in selecting an
arbitrator possessing the quallficailons required herein .
• 3 Hearing Days and location. Arbitration hearings shall be held althe offices
of City and shall, except for good cause shown to and determined by the
arbitrator, be conducted on consecutive business days, without interruption or
continuance .
. 4 Hearing Delays. ArbHratlon hearings shall not be delayed except upon good
cause shown .
• 5 Recording Hearings. All hearings to receive evidence shall be recorded by
a certified stenographic reporter, with the costs thereof borne equally by City
and Contractor and allocated by the arbitrator in the final award.
Construction Contract 9 Rev. December 1, 2009
.6 Limitation of Depositions. The parties may conduct discovery in
accordance with the provisions of seclion 10240.11 of the Public Contract
Code; provided, however, thet depositions shall be limned to both of the
following:
(i) Ten (10) percipient witnesses for each party and 5 expert witnesses
per party.
Upon a showing of good cause, the arbitrator may increase the number of
permitted depositions. An individual who is both percipient and expert shall,
for purposes of applying the foregoing numericallimHalion only, be deemed
an expert. Expert reports shall be exchanged prior to receipt of evidence, in
accordance with the direction of the arbHrator, and expert reports (including
initial and rebuttal reports) not so submitted shall not be admissible as
evidence .
• 7 Authority of the Arbitrator. The arbitrator shall have the authority to hear
dispositive motions and issue interim orders and interim or executory awards .
• 8 Waiver of Jury Trial. Contractor and CHy each voluntarily waives Its right to
a jury trial with respeclto any Contract Dispute that is subject to binding
arbjlratjon i~ accordance 'AntI:! tile pr:<))/islops of this Paragrapb 1444
Contractor shall include this provision in its contracts with its Subcontractors
who provide any portion of the Work.
14.5 Non-Waiver.
Participation in the Contract Dispute Resolution Process shall not waive, release or
compromise any defense of City, including, without limitation, any defense based on the
assertion that the rights or Claims of Contractor that are the basis of a Contract Dispute were
previously waived by Contractor due to Contractor's failure to comply with the Contract
Documents, including, without limitation, Contractor's failure to comply with any time periods
for providing notice of requests for adjustments of the Contract Sum or Contract Time or for
submission of Claims or supporting documentation of Claims.
SECTION 15 DEFAULT.
15.1 Notice ofOefault.
In the eventthat City determines, in its sole discretion, that Contractor has failed or refused to
perform any of the obligations set forth in the Contract Documents, or is in breach of any
provision of the Contract Documents, City may give written notice of defauit to Contractor in
the manner speciHed for the giving of notices in the Construction Contract.
15.2 Opportunity to Cure Default.
Except for emergencies, Contractor shall cure any default In performance of its obligations
under the Contract Documents within two (2) Days (or such shorter time as CHy may
reasonably require) after receipt of written notice. However, if the breach cannot be
reasonably cured within such time, Contractor will commence to cure the breach within two (2)
Days (or such shorter time as City may reasonably require) and will diligently and continuously
prosecute such cure to completion within a reasonable time, which shall in no event be later
than ten (10) Days after receipt ofsuch written notice.
SECTION 16 CtTY'S RIGHTS AND REMEDIES.
16.1 Remedies Upon Oefault.
If Contractor fails to cure any default of this Construction Contract within the time period set
forth above in Section 15, then City may pursue any remedies available under law or equHy,
including, without limitstion, the following:
Construction Contract 10 Rev. December 1, 2009
16.1.1 Delete Certain Services.
City may, without terminating the Construction Contract, delete certain portions of the
Work, reserving to itself all rights to Losses related thereto.
16.1.2 Perform and Withhold.
City may, without terminating the Construction Contract, engage others to perform the
Work or portion of the Work that has not belln adequately performed by Contractor
and withhold the cost thereof to City from future payments to Contractor, reserving to
Itself all rights to Losses related thereto.
16.1.3 Suspend The Construction Contract.
City may, without terminating the Construction Contract and reserving to itself all
rights to Losses related thereto, suspend all or any portton of this Construction
Contract for as long a period of time as City determines, in Us sole discretion,
appropriate, in which event City shall have no obligation to adjust the Contract Sum or
Contract Time, and shall have no liability to Contractor for damages if City directs
Contractor to resume Work.
16.1.4 Terminate the Construction Contract for DefauH.
CUy shall have the right to terminate this Construction Contract, in whole or In part,
upon the failure of Contractor to promptly cure any default as required by Section 15.
Ci4"s election to terminate the Cnngtmctjon Contract for default shall be
communicated by giving Contractor a written notice of termination in the manner
specified for the giving of notices in the Construction Contract. Any notice of
termination given to Contractor by City shall be effective immediatelY, unless
otherwise provided therein.
16.1.5 Invoke the Performance Bond.
City may, with or without terminating the Construction Contract and reserving to Itself
all rights to Losses related thereto, exercise its rights under the Performance Bond.
16.1.6 Additional Provisions.
All of City's rights and remedies under this Construction Contract are cumulative, and
shall be In addition to those rights and remedies available In law or In equity.
Designation in the Contract Documents of cerialn breaches as material shall not
waive the CUy's authority to designate other breaches as material nor limit City's right
to terminate the Construction Contract, or prevent the City from terminating the
Agreement for breaches that are not material. CUy's determination of whether there
has been noncompliance with the Construction Contract so as to warrant exercise by
City of its rights and remedies for defauH under the Construction Contract, shall be
binding on all parties. No termination or acllon laken by City after such termination
shall prejudice any other rights or remedies of CUy provided by law or equity or by the
Contract Documents upon such termination; and City may proceed against Contractor
to recover all liquidated damages and Losses suffered by CUy.
16.2 Delays by Sureties.
Without limiting 10 any of City's other rights or remedies, CUy has the righllo suspend the
performance of the Work by Contractor's sureties in the event of any of the following:
(i) The sureties' failure to begin Work within a reasonable time in such manner as to
insure full compliance with the Construction Contract within the Contract Time;
(II) The sureties' abandonment of the Work:
(iii) If at any time City is of the opinion the sureties' Work is. unnecessarily or
unreasonably delaying the Work;
(iv) The sureties' violation of any terms of the Construction Contract;
(v) The sureties' failure to perform according to the Contract Documents: or
(vi) The sureties' failure to follow City's instructions for completion of the Work within the
Contract Time.
Construction Contract 11 Rev. December 1, 2009
16.3 Damages to City.
16.3.1 For Contractor's Default.
City will be entitled to recovery of all Losses under law or equity in the event of
Contractor's default under the Contract Documents.
16.3.2 Compensation for Losses.
In the event that City's Losses arise from Contractor's default under the Contract
Documents, City shall be entiUed to withhold monies otherwise payable to Contractor
until Final Completion of the Project. If City incurs Losses due to Contractor's default,
then the amount of Losses shall be deducted from the amounts withheld. Should the
amount withheld exceed the amount deducted, the balance will be paid to Contractor
or Its designee upon Final Completion of the Project. If the Losses Incurred by City
exceed the amount wHhheld, Contractor shall be liable to City for the difference and
shall promptly remH same to City.
16.4 Suspension by City for Convenience.
City may, at any time and from time to time, without cause, order Contractor, In writing, to
suspend, delay, Or Interrupt the Work In whole or In part for such period of time, up to an
aggragate of fifty percent (50%) of the Contract Time. The order shall be specifICally Identified
as a Suspension Order by City. Upon recalpt of a Suspension Order, Contractor shall, at
City's &xpeRSG, comply "11th the order IIRd take all rGasonable steps 10 minimize costs
allocable to the Work covered by the Suspension Order. During tihe Suspension or extension
of the Suspension, If any, City shall eitiher cancel the Suspension Order or, by Change Order,
delete tihe Work covered by the Suspension Order. If a Suspension Order Is canceled or
expires, Contractor shall resume and continue wHh the WOrlk. A Change Order will be issued
to cover any adjustments of the Contract Sum or the Contract Time necessarily caused by
such suspension. A Suspension Order shall not be tihe exclusive method for City to stop the
Worlk.
16.5 Tennlnatlon Without Cause.
City may, at Hs sole discretion and without cause, terminate this Construction Contract In part
or in whole by giving tihirty (30) Days written notice to Contractor. The compensation allowed
under this Paragraph 16.5 shall be tihe Contractor's sole and exclusive compensation for such
termination and Contractor waives any claim for other compensation or Losses,lncludlng, but
not limited to, loss of anticipated profrts, loss of revenue, lost opportunity, or other
consequential, direct, Indirect or InCidental damages of any kind resuHing from termination
wltihout cause.
16.5.1 Compensation.
Following such termination and wltihln forty·five (45) Days after receipt of a billing from
Contractor seeking payment of sums authorized by this Paragraph 16.5, City shall pey
the following to Contractor as Contractor's sole compensation for performance of the
Work:
.1 For Work Performed. The amount of the Contract Sum allocable to the
portion of the Work properly performed by Contractor as of the date of
termination, less sums previously paid to Contractor .
• 2 For Close-out Costs. Reasonable costs of Contractor and Hs
Subcontractors and Sub-subcontractors for:
Construction Contract
(I) Demobilizing and
(Ii) Administering tihe close-out of ijs participation in tihe Project
(Including, without IimHatlon. all billing and accounting functions, not
including attorney orexperl fees) for a period of no longer tihan thirty
(30) Days after receipt of the notice of termination.
12 Rev, December 1, 2009
.3 For Fabricated Items. Previously unpaid cost of any items delivered to the
Project Site which were fabricated for subsequent incorporation In the Work.
16.5.2 Subcontractors.
Contractor shall include provisions in ali of its subcontracts, purchase orders and
other contracts permitting termination for convenience by Contractor on terms that are
consistent with this Construction Contract and that afford no greater rights of recovery
against Contractor than are afforded to Contractor against City under this Section.
16.6 Contractor's Duties Upon Termination.
Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless
the notice directs otherwise, do the following:
(i) Immediately discontinue the Work to the extent spedfied in the notice;
(Ii) Place no further orders or subcontracts for materials, eqUipment, services or fadlities,
except as may be necessary for completion of such portion of the Work that is not
discontinued;
(iii) Provide to City a description, in writing no leter than fifteen (15) days after receipt of
the notice ofterminetion, of all subcontracts, purchase orders and contracts that are
outstanding, including, without limitation, the terms of the original price, any changes,
payments, balance owing, the status of the portion of the Work covered and a copy of
the subcontrac~ purchase order or contract and any writien changes. amendments or
1l10dtfications thereto, together with 5' ICh other information as Cit¥ mA¥ determine
necessary in order to decide whether to accept assignment of or request Contractor to
terminate the subcontract, purchase order or contract;
(iv) Promptly assign to City those subcontracts, purchase orders or contracts. or portions
thereof, that City elects to accept by assignment and cancel, on the most favorable
terms reasonably possible. all subcontracts, purchase orders or contracts, or portions
thereof, that City does not elect to accept by assignment; and
(v) Thereafter do only such Work as may be necessary to preserve and protect Work
already In progress and to protect materials, plants, and equipment on the Project Site
or in transit thereto.
SECTION 17 CONTRACTOR'S RIGHTS AND REMEDIES.
17.1 Contractor's Remedies.
Contractor may terminate this Construction Contract only upon the occunrence of one of the
following:
17.1.1 For Work Stoppage.
The Work is stopped for sixty (60) consecutive Days, through no act or fault of
Contractor, any Subcontractor, or any employee or agent of Contractor or any
Subcontractor, due to Issuance of an order of a court or other public authority other
than City having jurisdiction or due to an act of govemment, such as a declaration of a
national emergency making material unavailable. This provision shall not apply to any
work stoppage resulting from the City's Issuance of a suspension notice issued etther
for cause or for convenience.
17.1.2 For City's Non.Payment.
If City does not make pay Contractor undisputed sums within ninety (90) Days after
receipt of notice from Contractor, Contractor may terminate the Construction Contract
(30) days following a second notice to City of Contractor's intention to terminate the
Construction Contract.
Construction Contract 13 Rev. Oecember 1. 2009
17.2 Damages to Contractor.
In the event of termination for cause by Contractor. City shall pay Contractor the sums
provided for in Paragraph 16.5.1 above. Contractor agrees to accept such sums as Its sole
and exclusive compensation and agrees to waive any claim for other compensation or Losses,
Including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or
other consequential, direct, indirect and Incidental damages, of any kind.
SECTION1B ACCOUNTING RECORDS.
1B.1 Financial Management and City Access.
Contractor shall keep full and detailed accounts and exercise such controls !IS may be
necessary for proper financial management under this Construction Contract in accordance
with generally accepted accounting principles and practices. City and City's accountants
during normal business hours, may Inspect, audit and copy Contractor's records, books,
estimates, take-offs, cost reports, ledgers, schedules, correspondence, instructions, drawings,
receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this
Project. Contractor shall retain these documents for a period of three (3) years after the later of
(i) final payment or (II) final resolution of all Contract Disputes and other disputes, or (iii) for
such longer period as may be requlnad by law.
18.2 Compliance with City Requests.
Cootcador's compliance with sny req' Jest by City pllCS11aot to this Section 18 shall be a
condition precedent to filing or maintenance of any legal action or proceeding by Contractor
against City and to Contractor's right to receive further payments under the Contract
Documents. City many enforce Contractor's obligation to provide .access to City of its
business and other records referred to in Section 18.1 for Inspection or copying by Issuance
of a writ Or a provisional or permanent mandatory Injunction by a court of competent
jurisdiction based on affidavits submitted to such court, without the necessity of oral testimony.
SECTION 19 INDEPENDENT PARTIES.
Each party is acting in its independent capacity and not as agents, employees, partners, or joint
venturers of the other party. City, its officers or employees shall have no control over the conduct of
Contractor or its respective agents, empioyees, 5ubconsuitants, or subcontractors, except as herein set
forth.
SECTION 20 NUISANCE.
Contractor shall not maintain, commit, nor permit the maintenance or commission of any nuisance in
connection in the performance of services under this Construction Contract.
SECTION 21 PERMITS AND LICENSES.
Except as otherwise provided in the Special Provisions and Technical Specifications, the Contractor
shall provide. procure and pay for all licenses, permits, and fees, required by the City or other
government jurisdictions or agencies necessary to carry out and complete the Work. Payment of all
costs and expenses for such licenses, permits, and fees shall be included in one or more Bid items. No
other compensation shail be paid to the Contractor for these items or for delays caused by non-City
inspectors or conditions set forth In the licenses or permits issued by other agencies.
SECTION 22 WAIVER.
A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be
deemed to be a waiver of any subsequent breach ofthe same or any other term, covenant, orcondilion
contained herein, whether of the same or a different character.
Construction Contract 14 Rev. December 1.2009
SECTION 23 GOVERNING LAW.
This Construction Contract shall be construed in accordance with and governed by the laws of the
State of California.
SECTION 24 COMPLETE AGREEMENT.
This Agreement represents the entire and integrated agreement between the parties and supersedes
all prior negotiations, representations, and contracts, either written or oral. This Agreement may be
amended only by a written instrument, which Is signed by the parties.
SECTION 25 SURVIVAL OF CONTRACT.
The provisions of the Construction Contract wihlch by their nature survive termination of the
Construction Contract or Final Completion, Including, without limitation, all warranties, indemnities,
payment obligations, and City's right to audit Contractor's books and records, shall remain in full force
and effect after Final Completion or any tenmination of the Construction Contract.
SECTION 26 PREVAILING WAGES.
jg] This I2l'9JeGt Is A9t syGjeGt 19 pF91'alllAg "'ages, TIle CCIRlJ:aaor is Rot ,:eq'li,:ed to pay pre>.<alilog
wages In the performance and implementation of the Project, because the City, pursuant to Its authority
as a chartered city, has adopted Resolution No. 5981 exempting the City from prevailing wages. The
City Invokes the exemption from the state prevailing wage requirement for this Project and declares
that the Project Is funded one hundred percent (100%) by the City of Palo Alto.
Or
o The Contractor is required to pay general prevailing wages as defined In Subchapter 3, Title 8 of the
California Code of Regulations and Section 16000 .!!!~ and Section 1773.1 of the California Labor
Code. Pursuant to the prOVisions of Section 1773 of the Labor Code ofthe State of California, the City
Council has obtained the general prevailing rate of per diem wages and the general rate for holiday
and overtime work in this locality for each craft, claSSification, or type of worker needed to execute the
contract for this Project from the Director of the Department of Industrial Relations. Copies of these
rates may be obtained at cost at the Purchasing office of the City of Palo Alto. Contractor shall provide
a copy of prevailing wage rates to any staff or subcontractor hired, and shall pay the adopted prevailing
wage rates as a minimum. Contractor shall comply with the provisions of Sections 1775, 1776, 1777.5,
1810, and 1813 ofthe Labor Code.
SECTION 27 NON APPROPRIATION.
This Agreement is subject to the fiscal provisions of the Charter of the City of Palo AHo and the Palo
Alto MuniCipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year
in the event that the City does not appropriate funds for the following fiscal year for this event, or (b) at
any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year
and funds forthis Construction Contract are no longer available. This section shall take precedence In
the event of a confiict with any other covenant, term, condHion, or provision of this Agreement.
SECTION 28 AUTHORITY.
The individuals executing this Agreement represent and warrant that they have the legal capacity
and authority to do so on behalf of their respective legal entities.
SECTION 29 ATTORNEY FEES.
Each Party shall bear ils own costs, including allomey's fees through the completion of mediation. If
the claim or dispute is not resolved through mediation and in any dispute described in Paragraph 14.2,
Construction Contract 15 R,ev. December 1,2009
the prevailing party in any action brought to enforce the provision of this Agreement may recover ils
reasonable cosls and attorney's fees expended in connection with that action. The prevailing party
shall be entitled to recover an amount equal to the fair market value of legal services provided by
attorneys employed by it as well as any attorney's' fees paid to third parties.
SECTION 30 SEVERABILITY.
In case a provision of this Construction Contract is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not be affected.
IN WITNESS WHEREOF, the parties have caused this Construction Contract to be executed
the date and year lirst above written.
CITY OF PALO ALTO ALL DAY ELECTRIC COMPANY, INC.
By: _________ _
City Manager Name:, ______________ _
APPROVED AS TO FORM: Title:, ____________ _
Senior Asst. City Attorney
Constructlon Contract 16 Rev. December 1,2009
BID SUMMARY
Invitation For Bid
Title
Date
List of Bidders
1. Diversified Utility Services
2. All Day Electric Company
3. Hot Line Construction
4. Cal Electro
5. Pacheco Utility Line Builders
6. PAR Electrical
7. Wilson Utility Construction
8. International Line Builders
134537
Electric Distribution System Improvement -~kV to 12kV Conversion Project
February 16, 2010
Bid Total
$ 466,265.90
$ 561,458.00
$ 632,400.00
$ 745,100.00
$ 914,073.10
$ 958,127.10
$ 1,121,900.59
$ 1,186,515.45
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Capital
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LE~END
I'ROI'OSI:O UND~~RbUND PRoiEctS
OOP~fIlI(';U.¢ :000:;1)
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PItOPOSEO UNDERGROUND REBUILD
PROPOSE!> SVST!M kE&Ull0
~CCAlt QlO!OfO/M,VII~:;I~"'«iA&~1 i1~ _________ :lD12-:Xln
PIIOf'ruEl> 4112KV CONVEIISION
!J!i<tX1 ~aw
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j)lOX1) ___________ 'l\li;;-}Q1~ -1-----UXO!! ______ 'nU_7>ll n ____ Zl,;).XN
ATTACHMENT C
"-I~9·2014
Program
Feb 2009