HomeMy WebLinkAboutStaff Report 306-10TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: UTILITIES
DATE: JULY 26, 2010 CMR: 306:10
REPORT TYPE: CONSENT
~ .. ~_ SUQ.JECT;~ ... _~ AllJIroval of an Electricll:nte.rpriseFund Contract with Pacheco Utility
Line Builders, Inc. for a Total Not to Exceed Amount of $3,000;000 for-~
Providing Overhead Electric Transmission and Distribution System
Construction Services -Capital Improvement Program Budget EL
98003
RECOMMENDATION
Staff recommends that Council:
I. Approve and authorize the City Manager or his designee to execute the attached contract
with Pacheco Utility Line Builders, Inc. for a period of twelve (12) months in an amount not
to exceed $1,000,000 to provide overhead construction services.
2. Authorize the City Manager or his designee to renew the contract for up to two additional 12
month periods at a not to exceed cost of$1 ,000,000 for the first renewal (FY 20 II) and a not
to exceed cost of $1,000,000 for the second renewal (FY 2012) for a total contract price of
$3,000,000 if the contractor is responsive to the contract requirements, and the quality of the
work is acceptable during the first twelve months of the contract.
Project Description
The work to be performed under the contract is for providing overhead construction services on the
City of Palo Alto's (City) electric transmission and distribution system. The contractor will be asked
to provide two crews (one four-person crew and one two-person crew) to be used full time by the
City's Electric Operations for a period of twelve (12) months, with an option for the City to extend
the term for two additional 12-month periods.
The contractor services mainly include replacements of poles, transformers, air switches, connectors,
insulators, overhead conductors, and any other miscellaneous work related with overhead line
construction. In addition, the crew will be available to assist Electric Operations for general
maintenance and restoration of power during emergency and storm· situations.
CMR: 306:10 Page 1 of3
Staffis recommending the use of a contractor to perform this work because the City'S electric line
workforce does not have adequate staff to meet the current peak workload. Existing staff is barely
keeping up 'With the new business requests, underground construction, and some maintenance work.
The contractor mil be asked to perform overhead services to assist city crews in mecting deadlines
of the different capital improvement projects. Furthermore, there is insufficient city staff to keep up
mth the increased nmnber of poles requiring replacement in the current fiscal year and the poles
planned to be replaced over the next three years. This type of work has been performed by a third
party contractor for the last four years and City SEIU staffs are not being displaced by this contract.
SummaryofBidProc~~~s~ ______ ~ __ ~~~ ____ ~~ __ ~-=~ ______________ ~
: Bid NamelNmnber .. ! Overhead Construction Services/IFB-r 1c-=-----,,~-::"---=:c-"'=c-:------r--"-'-=~~~=~"_'_:c7c.'-=-~_:::_:_-_:---li
LProposed Length of Project .. 11 year mth option toextend for two additional years
I Number of Bids Mailed to. 6
____ .. __.contractOrL I
I:
[
iNumber of Bids Mailed to Builder's 17 ~xchanges .. _---'.1-=-: _____ ----------------11
• Total Days to R,espond to Bid : 21 ~:I
i Pre-Bid Meeting? I Yes, non-mandatory ~
Bid Price Range -Hourly Rate for 4 . From $479.00 to $569.99
I person crew .
: Bid Price Range _. Hourly Rate for 21: From $59.00 to $281.65
I person crew .
*Bid smnmary provided in Attachment B.
Staffhas reviewed all bids submitted and recommends that the bid submitted by Pacheco Utility Line
Builders, Inc. be accepted and that Pacheco Utility Line Builders, Ine. be declared the lowest
responsible bidder.
Pacheco Utility Line Builders, Inc. was selected because of its recent experience mth related
projects, full understanding of the RFP, cost, and the foreman's qualifications and experience.
Staff checked references supplied by the contractor for previous work performed by Pacheco Utility
Line Builders, Inc. and found no complaints. Staff also checked the contractor's license with the
Contractor's State License Board and found that the contractor has an active license on file.
RESOURCE IMPACT
Funds for this capital improvement project are included in.FY 2011 Electric Capital Improvement
Program Budget EL 98003 -and Distribution Operation and Maintenance Budget. Continued work
under this contract for FY 2012 and FY 2013 mil be subject to satisfactory performance by the
contractor and appropriation of required funds in these fiscal years.
CMR: 306:10 Page 2 of3
I
This contract augments the regular workforce to ensure that proper maintenance of the electric
infrastructure is accomplished while meeting peak workload needs.
POLICY IMPLICA nONS
The approval of this contract is consistent with existing City policies, including the Council
approved Utilities Strategic Plan Key Strategy No.1, "Operate distribution system in a cost effective
manner" and; Strategy No.2, "Invest in utility infrastructure to deliver reliable service".
ENVIRONMENTAL REVIEW
This project is categorically exempt from California Environmental Quality Act (CEQA), pursuant to
CEQA guidelines section 15301 (operation, repair, maintenance of existing facilitieS). and section
15302 (replacement or reconstruction of existing facilities).
AITACHMENTS
Attachment A: Contract
. -··-AttacliliienCB:Bfd·SUminary .~-:-r:4--.. ---,.;;>------.-.---........ -
PREPARED BY: AN '\J"J
. fA JIM THOMPSON
Seni~ctric Project Engineer
APPROVED BY: j _~ T.-V~
TOMM MARSHALL
Assistant Director of Utilities Engineering
DEPARTMENT HEAD: VA&'~NG
Director of~s
--~'> £t···}::~-E KEENE
Ci anager
CITY MANAGER APPROVAL:
CMR: 306:10 Page 3 00
". " ,'c _ I.' .
ATTACHMENT A
~ ----~~~-~~~-----~-~~~
CONSTRUCTION CONTRACT
Contract No. C11136255
City of Palo Alto
and
Pacheco Utility Line Builders, Inc.
PROJECT
OVERHEAD CONSTRUCTION SERVICES
Rev. May 6,2010
SECTION 1.
· CONSTRUCTION CONTRACT
TABLE OF CONTENTS
INCORPORATION OF RECITALS AND DEFINITIONS .................................... 1
1.1 Recitals ................................................................................................................................ 1
1.2 Deflnillons ........................................................................................................................... 1
SECTION 2. THE PROJECT ................................................................................................... 1
SECTION 3. THE CONTRACT DOCUMENTS ....................................................................... 1
3.2 ORDER OF PRECEDENCE ............................................................................... 2
SECTION 4. THE WORK ........................................................................................................ 2
SECTION 5. PROJECT TEAM ................................................................................................ 2
SECTION 6. TIME OF COMPLETION .................................................................................... 2
6.1 Time Is of Essence ............................................................................................................. 3
6.2 Commencement of Work ................................................................................................... 3
6.3 Contract Time ..................................................................................................................... 3
6.4 liquidated Damages .......................................................................................................... 3
6.4.1 Entitlement.. ................................................................................................................. 3
6.4.2 Daily Amount ............................................................................................................... 3
6.4.3 Exclusive Remedy ....................................................................................................... 3
6.4.4 Other Remedies .......................................................................................................... 3
6.5 Adjustments to Contract Time .......................................................................................... 3
SECTION 7. COMPENSATION TO CONTRACTOR .............................................................. 3
7.1 Contract Sum ...................................................................................................................... 3
7.2 Full Compensation ............................................................................................................. 4
7.3 Compensation for Extra or Deleted Work ........................................................................ 4
7.3.1 Self Performed Work ................................................................................................... 4
7.3.2 Subcontractors ............................................................................................................ 4
Rev. May 6, 2010
IFB Construction Contract Template May 6, 2010.DOC
SECTION 8. STANDARD OF CARE ....................................................................................... 4
SECTION 9. INDEMNIFiCATION ............................................................................................ 4
9.1 Hold Harmless .................................................................................................................... 4
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 ...................................................................................... 7
14.2 Resolution of Other Disputes ........................................................................................... 7
14.2.1 Non-Contract Disputes ................................................................................................ 7
14.2.2 Litigation. City Election ................................................................................................. 7
14.3 Submission of Contract Dispute ...................................................................................... 7
14.3.1 By Contractor ............................................................................................................... 7
14.3.2 By Clty .......................................................................................................................... 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 ~efault ............................................................................................ 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
ii Rev. MayS, 2010
IFB Cooslruction Contract Template May 6. 2010.00C
16.1.3 Suspend The Construction Contract ......................................................................... 11
16.1.4 Terminate the Construction Contract for Default... .................................................... 11
16.1.5 Invoke the Performance Bond ................................................................................... 11
16.1.6 Additional Provisions ................................................................................................. 11
16.2 Delays by Sureties ........................................................................................................... 11
16.3 Damages to City ............................................................................................................... 12
16.3.1 For Contractor's Default ........................................................................................ , , .. 12
16,3,2 Compensation for Losses ............ , ........................................................ , .................... 12
16.5 Suspension by City for Convenience ............................................................................. 12
16.6 Termination Without Cause ............................................................................................ 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
IFB Construction Conlr.;ctTemplate May 6. 2010.00C
iii Rev, May 6. 2010
SECTION 27
SECTION 28
SECTION 29
SECTION 30
NON APPROPRIATION ................................................................................... 15
GOVERNMENTAL POWERS .......................................................................... 15
ATTORNEY FEES .••.••••••••••••••....•...•••.••••..••••..••••••............................................ 15
SEVERABILITY ................................................................................................ 15
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CONSTRUCTION CONTRACT
THIS CONSTRUCTION CONTRACT entered into on July 25, 2010 ("Execution Date") by and
between the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and Pacheco
Utility Une Builders, Inc. ("Contractor"), is made with reference to the following:
REC ITALS;
A City is a municipal corporation duly organized and validly existing under the laws of the
State of California with the power to carry on its business as it is now being conducted under the
statutes of the State of California and the Charter of City.
B. Contractor is a corporation duly organized and in good standing in the State of
California, Contractor's License Number 750251. 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 June 1, 2010, City issued an Invitation for Bids (IFB) to contractors for the
.-~ ___ .Olle[head.ConslructiQn..S.eIllice.s("p[Qj~..1.J!lL~sRonse to theIE.BLQontract()r submitted <l biL .. ~.~ ..
D. City and Contractor desire to enter into this Construction Contractfor the Project, and
other services as identified In the Bid Documents for the Project upon the following terms and
condUions.
NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually agreed by and between the undersigned parties as follows:
SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS.
1.1 Recitals.
All of the recitals are incorporated herein by reference,
1.2 Definitions.
Capitalized terms shall have the meanings set forth in this Construction Contract and/or in the
General Conditions, If there Is a conflict between the definitions in this Construction Contract
and in the General Conditions, the definitions in this Construction Contract shall prevail.
SECTION 2 THE PROJECT.
The Project is the construction of the Overihead Construction ("Project"),
SECTION 3 THE CONTRACT DOCUMENTS.
3.1 List of Documents,
The Contract Documents (sometimes collectively referred to as "Agreemenf' or "Bid Documents")
consist of the following documents which are on file with the Purchasing Division and are hereby
incorporated by reference,
1) Change Orders
2) Field Change Orders
3) Contract
4) Project Plans and Drawings
5) Technical Specifications
1 Rev. May 6, 2010
IFB Construction Contract Temptate May 6, 2010.o0C
6) Special Provisions
7) Notice Inviting Bids
8) Instructions to Bidders
9) General Conditions
10) Bidding Addenda
11) Invitation for Bids
12) Contractor's Bid/Non-Collusion Affidavit
13) Reports listed in the Bidding Documents
14) Public Works Department's Standard Drawings and Specifications dated 2007 and
updated from time to time
15) Utilities Department's Water, Gas, Wastewater, Electric Utilities Standards dated
2005 and updated from time to time
16) City of Palo Alto TraffiC Control ReqUirements
17) City of Palo Alto Truck Route Map and Regulations
18) Notice Inviting Pre-Qualification Statements, Pre-Qualification Statement, and Pre
Qualification Checklist (if applicable)
19) Performance and Payment Bonds
20) Insurance Forms
3.2 Order of Precedence.
For the purposes of construing, Interpreting and resolving inconsistencies between and among the
provisions of this Contract, the Contract Documents shall have the order of precedence as set forth in
the preceding section. If a claimed inconsistency cannot be resolved through the order of precedence,
the City shall have the sole power to decide which document or provision shall govern as may be in the
best interests of the City.
SECTION 4 THE WORK.
The Work includes all labor, materials, equipment, services, permits, fees, licenses and taxes, and all
other things necessary for Contractor to perform its obligations and complete the Project, including,
without limitetion, any Changes approved by City, in accordance with the Contract Documents and all
Applicable Code Requirements.
SECTION 5 PROJECT TEAM.
In addition to Contractor, City has retained, or may retain, consultants and contractors to provide
professional and technical consultation for the design and construction of the Project. The Project
requires that Contractor operate efficiently, effectively and cooperatively with City as well as all other
members of the Project Team and other contractors retained by City to construct other portions of the
Project.
SECTIONS TIME OF COMPLETION.
2 Rev. May 6.2010
IFB Construction Contract Template May 6. 2010.DOC
6.1
6.2
6.3
6.4
Time Is of Essence.
Time is of the essence with respect to all time limits set forth in the Contract Documents.
Commencement of Work.
Contractor shall commence the Work on the date specified in City's Notice to Proceed.
Contract Time.
Work hereunder shall begin on the date specified on the City's Notice to Proceed and shall be
completed I8J not later than time determined by project manager. o within calendar days ( ) after the commencement date specified in City's
Notice to Proceed.
Liquidated Damages.
6.4.1 Entitlement.
City and Contractor acknowledge and agree that if Contractor fails to fully and
satisfactorily complete the Work within the Contract Time, City will suffer, as a result
'---orContractor'stailure, sliostafitialaamageswhlCh,lr!,b'othexlremelydifflcultand"-....
impracticable to ascertain. Such damages may Include, but are not limited to:
(il 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 ofthe
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 ofthe entire Work within
the Contract Time, Contractor shall pay City as liquidated damages the amount of
$500 per day for each Day occurring after the expiration of the Contract Time until
Contractor achieves Substantial Completion of the entire Work. The liquidated
damages amount Is not a penalty but considered to be a reasonable estimate of the
amount of damages City will suffer by delay in completion of the Work.
6.4.3 Exclusive Remedy.
City and Contractor acknowledge and agree that this liquidated damages provision
shall be City's only remedy for delay damages caused by Contractor's failure to
achieve Substantial Completion of the entire Work. within the Contract Time.
6.4.4 Other Remedies.
City is entitled to any and all available legal and equitable remedies City may have
where City's Losses are caused by any reason other than Contractor's failure to
achieve Substantial Completion of the entire Work within the Contract Time.
6.5 Adjustments to Contract Time.
The Contract Time may only be adjusted for time extensions approved by City and agreed to
by Change Order executed by City and Contractor in accordance with the requirements of the·
Contract Documents.
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 Not To Exceed Amount of One Million Dollars ($1,000,000) per
year.
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IFB Construction Contract Template May 6,201 O.DOC
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7.2 Full Compensation.
The Contract Sum shall be fu II 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. . Unit prices stated in the Contract Documents or agreed upon by City and Contractor,
which unit prices shall be deemed to include Contractor Markup and
Subcontractor/Sub-subcontractor Markups permitted by this Section .
... ----... ---~---···2.·-~·-Alump.sum.agreed.upon.by.city.and .contractor,.based.DnJb.easllm.aJed..AIIQ>lI.able __ ._
Costs and Contractor Markup and Subcontractor Markup computed in accordance
with this Section.
3. Contractor's Allowable Costs, plus Contractor Markup and Subcontractor Markups
applicable to such Extra Work computed In accordance with this Section.
Contractor Markup and Subcontractor/Sub-subcontractor Markups set forth herein are the full
amount of compensation to be added for Extra Work arlo 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 for that portion of the Extra Work or Deleted Work to be
performed by Contractor with its own forces.·>
7.3.2 Markup for Work Performed by Subcontractors.
15% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be
performed by a first Tier Subcontractor.
SECTION 8 STANDARD OF CARE.
Contractor agrees that the Work shall be performed by qualified, experienced and well-supervised
personne!. 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.
SECTION 9 INDEMNIFICATION.
9.1 Hold Harmless.
To the fullest extent allowed by law, Contractor will defend, indemnify, and hold harmless City,
its City Council, boards and commissions, officers, agents, employees, representatives and
volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel
acceptable to City, from and against any and all Losses arising directly or indirectly from, or in
any manner relating to any of, the following:
(i) Performance or nonperformance of the Work by Contractor or its Subcontractors or
Sub-subcontractors, of any tier;
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IFB Construction Contract Template May 6, 2010.DOC
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9.2
(ii) Perlormance or nonperformance by Contractor or its Subcontractors or Sub
subcontractors of any tier. of any of the obligations under the Contract Documents;
(iii) The construction activities of Contractor or its Subcontractors or Sub-subcontractors,
of any tier, eHher on the Site or on other properties;
(iv) The payment or nonpayment by Contractor to any of its employees, Subcontractors or
Sub-subcontractors of any tier, for Work performed on or off the Site for the Project;
and
(v) Any personal injury, property damage or economic loss to third persons associated
with the performance or nonperformance by Contractor or its Subcontractors or Sub
subcontractors of any tier, of the Work.
However, nothing herein shail obligate Contractor to Indemnify any Indemnitee for Losses
resulting from the sale 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 IndemnHee.
Survival.
--... --~ .~-Theprovisions-of-£eotlon-9·shall·survlve·the·termination-of-thls·ConstructionContract.~ __ ~_ ... __
SECTION 10 NONDISCRIMINATION.
As set forth in Palo Alto Municipal Code section 2.30.510. Contractor certifies that in the performance
of this Agreement, it shall not discriminate in the employment of any person because of the race, skin
color, gender, age, religion, disability, national origin, ancestry, sexual orientation. housing status,
marital status, familial status, weight or height of such person. Contractor acknowledges that it has
read and understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to
Nondiscrimination Requirements and the penalties for violation thereof, and will comply with all
requirements of Section 2,30,510 pertaining to nondiscrimination In employment.
SECTION 11 INSURANCE AlND BONDS.
On or before the Execution Date. Contractor shail provide CHy with evidence that it has obtained
insurance and Performance and Payment Bonds satisfying all requirements in Article 11 ofthe General
Conditions. Failure to do so shall be deemed a material breacih of this Construction Contract.
SECTION 12 PROHIBITION AGAINST TRAINSFERS.
City is entering into this Construction Contract based upon the stated experience and qualifications of
the Contractor and its subcontractors set forth in Contractor's Bid. Accordingly, Contractor shall not
assign, hypothecate or transfer this Construction Contract or any Interest therein directly or indirectly,
by operation of law or otherwise without the prior written consent of CHy. Any assignment,
hypothecation or transfer without said consent shall be nuil and void,
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of
Contractor or of any general partner or jOint venturer or syndicate member of Contractor, if the
Contractor is a partnership or jOint venture or syndicate or co-tenancy shall result in changing the
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.
5 Rev. May 6, 2010
IFB Construction Contract Template May 6, 2010.DOC
SECTION 13 NOTICES.
13.1 Method of Notice.
All notices, demands, requests or approvals to be given under this Construction Contract shall
be given in writing and shall be deemed served on the earlier of the following:
(i) On the date delivered if delivered personally;
(ii) On the third business day after the deposit thereof in the United Stales 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: City of Palo Alto
-~~···-~eityelerkm~m~-... -~-.. m-~ .m~m~~ . __ m •• ~_ '_~m __
Copyto:D
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
City of Palo Alto
Public Works
Administration
250 Hamilton Avenue
Palo Alto, CA 94301
Attn:
Or
City of Palo Alto
Utilities Engineering
250 Hamilton Avenue
Palo Alto, CA 94301
Attn: Jim Thompson
In addition, copies of all Claims by Contractor under this Construction Contract shall be
provided to the following:
Palo Alto City Attorney's Office
250 Hamilton Avenue
p.o. Box 10250
Palo Alto, California 94303
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 Thompson
13.3 Change of Address.
In the evenl of any change of address, the moving party shall notify the other party of Ihe
change of address in writing. Each party may, by written notice only, add, delele or replace
any Individuals to whom and addresses 10 which notice shall be provided.
6 Rev. May 6, 2010
IFB ConslruCDon Contract Template May 6. 2010.00C
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
adjudged by a trial court or jury. All Contract Disputes shall be subject to the Contract
Dispute Resolution Process set forth in this Section 14, which shall be the exclusive
recourse of Contractor and City for such Contract Disputes.
14.2 Resolution of Other Disputes.
14.2.1 Non-Contract Disputes.
Contract Disputes shall not Include any of the following:
(i) Penalties or forfeitures prescribed by statute or regulation Imposed by a
governmental agency;
(Ii) Third party tort claims for personal Injury, property damage or death relating
to any Work performed by Contractor or its Subcontractors or Sub-
____ ... __ .... _____ ...._ . __ . ____ ... subc.cmtri!l.cto..rs of any tier;
(iii) False claims liabTfiiy underCallfornliIGovernmenn:;oaeSectlori12650~eC--
seq.;
14.2.2
(iv) Defects in the Work first dlscoverad by City after Final Payment by City to
Contractor;
(v) Stop notices; or
(vi) The right of City to specific performance or injunctive relief to compel
performance of any provision of the Contract Documents.
Litigation, City Election.
Matters that do not constitute Contract Disputes shall be resolved by way of an action
filed in the Superior Court of the State of Califomia, County of Santa Clara, and shall
not be subject to the Contract Dispute Resolution Process. However, the City
reserves the right, in ils 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
wrillen response denying all or part of a Claim pursuantlo Paragraph 4.2.9 or 4.2.10
of the General Conditions. Contractor shall submit a written Statement of Contract
Dispute (as set forth below) to City within seven (7) Days after City rejects all or a
portion of 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 Statement of Contract Dispute shall be
signed under penalty of perjury and shall state with specificity the events or
circumstances giving rise to the Contract Dispute, the dates of their occurrence and
the asserted effect on the Contract Sum and the Contract Time. The Statement of
Contract Dispute shall include adequate supporting data to substantiate the disputed
Claim. Adequate supporting data for a Contract Dispute relating to an adjustment of
the Contract Time shall include both of the following:
(i) All of the scheduling data required to be submitted by Contractor under the
Contract Documents to obtain extensions of time and adjustmenls 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
7 Rev. May 6, 2010
IFB Construction Contract Templata May 6, 2010.DOC
14.4 c
Dispute involving an adjustment of the Contract Sum must include both of the
following:
(a) A detailed cost breakdown and
(b) Supporting cost data in such form and including such information and
other supporting data as required under the Contract Documents for
submission of Change Order Requests and Claims.
14.3.2 By City.
City's right to commence the Contract Dispute Resolution Process shall arise at any
time following City's actual discovery of the circumstances giving rise to the Contract
Dispute. City asserts Contract Disputes in response to a Contract Dispute asserted
by Contractor. A Statement of Contract Dispute SUbmitted by City shall state the
events or circumstances giving rise to the Contract Dispute, the dates of their
occurrence and the damages or other relief claimed by City as a result of such
events.
Contract Dispute Resolution Process.
The parties shall utilize each of the following steps In the Contract Dispute Resolution
"-~'Process-Inth6'sequence·theyappear-~elow,~Ea(lh-partyshall·partlolpatefully-and·ln
good faith In each step In the Contract Dispute Resolution Process, and good faith
effort shall be a condition precedent to the right of each party to proceed to the next
step in the process.
14.4.1 Direct Negotiations.
Designated representatives of City and Contractor shall meet as soon as possible
(but not later than ten (10) Days after receipt of the Statement of Contract Dispute) in
a good faith effort to negotiate a resolution to the Contract Dispute. Each party shall
be represented in such negotiations by an authorized representative with full
knowledge of the details of the Claims or defenses being asserted by such party in
the negotiations, and with full authority to resolve such Contract Dispute then and
there, subject only to City's obligation to obtain administrative andfor 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 turn 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 either continue the negotiations or any party may declare
negotiations ended. All discussions that occur during such negotiations and all
documents prepared solely for the purpose of such negotiations shall be confidential
and privileged pursuant to California Evidence Code Sections 1119 and 1152.
14.4.2 Deferral of Contract Disputes.
Following the completion of the negotiations required by Paragraph 14.4.1, all
unresolved Contract Disputes shall be deferred pending Final Completion of the
Project, subject to City's right, in its sole and absolute discretion, to require that the
Contract Dispute Resolution Process proceed prior to Final Completion. All Contract
Disputes that have bean deferred until Final Completion shall be consolidated within a
reasonable time after Final Completion and thereafter pursued to resolution pursuant
to this Contract Dispute Resolution Process. The parties can continue informal
negotiations of Contract Disputes; provided. however, that such Informal negotiations
shall not be alter the provisions of the Agreement deferring final determination and
resolution of unresolved Contract Disputes until after Final Completion.
B Rev. May 6, 2010
IFB Construction Contract Template May 6. 2010.DOC
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 .
. 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 upcn a
mediator within fifteen (15) Days after the receipt of such written notice. then
the parties shall submit the matter to the American Arbitration Association
(AAA) at Its San Francisco Regional Office for selection of a mediator in
accordance with the AAA Construction Industry Mediation Rules .
. 3 Mediation Process_ The location of the mediation shall be at the offices of
City. The costs of mediation shall be shared equally by both parties. The
mediator shall provide an independent assessment on the merits of the
Contract Dispute and recommendations for resolution. All discussions that
occur during the mediation and all documents prepared solely for the
purpose of the mediation shall be confidential and privileged pursuant to
California Evidence Code Sections 1119 and 1152.
14.4.4 Binding Arbitration.
If the Contract Dispute is not resolved by mediation. then any party may submit the
Contract Dispute for final and binding arbitration pursuant to the provisions of
California Public Contract Code Sections 10240. et seq. The award of the arbitrator
therein shall be final and may be entered as a judgment by any court of competent
jurisdiction. Such arbitration shall 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
California 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 attorney with at least five
(5) years of experience in public works construction contract law and in
arbitrating public works construction disputes. In addition, the arbitrator shall
have at least twenty (20) hours of formal training in arbitration skills. In the
eventthe 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 qualifications required herein .
• 3 Hearing Days and location. Arbitration hearings shall be held at the offices
of City and shall, except for good cause shown to and determined by the
arbitrator, be conducted on consecutive business days. without interruption or
continuance .
. 4 Hearing Delays. Arbitration hearings shall not be delayed except upcn good
cause shown.
9 Rev. May 6. 2010
IFB Construc!ion Contract Template May 6. 2010.DOC
... --..... --~
·5 Recording Hearings. All hearings to receive evidence shall be recorded by
a certified stenographic reporter, with the costs thereof borne equally by City
and Contractor and allocated by the arbitrator in the final award .
. 6 limitation of Depositions. The parties may conduct discovery In
accordance with the provisions of section 10240.11 of the Public Contract
Code; provided, however, that depOSitions shall be limited to both of the
following:
(i) Ten (10) percipient witnesses for each party and 5 expert witnesses
per party.
Upon a showing of good cause, the arbHrator may increase the number of
permitted depositions. An individual who is both percipient and expert shall,
for purposes of applying the foregoing numerical limitation only, be deemed
an expert. Expert reports shall be exchanged prior to receipt of evidence, in
accordance with the direction of the arbitrator, and expert reports (including
initial and rebuttal reports) not so submitted shall not be admissible as
....... -----evidencec---.. --~------~ ~-.-~~ ..... -~--
.7 Authority of the Arbitrator. The arbITrator shall have the authority to hear
dispositive motions and issue interim orders and interim or executory awards .
. 8 Waiver of Jury Trial. Contractor and City each voluntarily waives its rlghtto
a jury trial with respect to any Contract Dispute that is subject to binding
arbitration In accordance WITh the provisions of this Paragraph 14.4.4.
Contractor shall include this provision in its contracts with its Subcontractors
who provide any portion of the Work.
14.5 Non-Waiver.
Participation in the Contract Dispute Resolution Process shall not waive, release or
compromise any defense of City, including, without limitation, any defense based on the
assertion that the rights or Claims of Contractor that are the basis of a Contract Dispute were
previously waived by Contractor due to Contractor's failure to comply with the Contract
Documents, including, without limitation, Contractor's failure to comply with any time periods
for providing notice of requests for adjustments of the Contract Sum or Contract Time or for
submission of Claims or supporting documentation of Claims.
SECTION 15 DEFAULT.
15.1 Notice of Default.
In the event that Cfty determines, in its sole discretion, that Contractor has failed or refused to
perform any of the obligations set forth in the Contract Documents, or Is in breach of any
provision of the Contract Documents, City may give written notice of default to Contractor in
the manner specified for the giving of notices in the Construction Contract.
15.2 Opportunity to Cure Default.
Except for emergencies, Contractor shall cure any defautt in performance of its obligations
under the Contract Documents wHhin two (2) Days (or such shorter time as City may
reasonably require) after receipt of written notice. However, If the breach cannot be
reasonably cured within such time, Contractor will commence to cure the breach within two (2)
Days (or such shorter time as City may reasonably require) and will diligently and continuously
prosecute such cure to completion within a reasonable time, which shall in no event be later
than ten (10) Days after receipt of such wrHten notice.
IFS Construction Contract remplate May 6, 2010.DOC
10 Rev, May 6, 2010
SECTION 16 CITY'S RIGHTS AND REMEDIES.
16.1 Remedies Upon Default.
If Contractor fails to cure any default of this Construction Contract within the time period set
forth above in Section 15, then City may pursue any remedies available under law or equity,
including, without limitation, the following:
16.1.1 Delete Certain Services.
City may, without terminating the Construction Contract, delete certain portions ofthe
Work, reserving to itself all rights to Losses related thereto.
16.1.2 Perform and Withhold.
City may, without terminating the Construction Contract, engage others to perform the
Work or portion of the Work that has not been adequately performed by Contractor
and withhold the cost thereof to City from future payments to Contractor, reserving to
itself all rights to Losses related thereto.
16.1.3 Suspend The Construction Contract.
------eity~may;withullt~terminatlng~the~eunstruction· COntract~and~resel'\ling-to~ilself~all---.
rights to Losses related thereto, suspend all or any portion of this Construction
Contract for as long a period of time as City determines, In its sole discretion,
appropriate, In which event City shall have no obligation to adjust the Contract Sum or
Contract Time, and shall have no liability to Contractor for damages if City directs
Contractor to resume Work.
16.1.4 Terminate the Construction Contract for Default.
City shall have the right to terminate this Construction Contract, in whole or in part,
upon the failure of Contractor to promptly cure any default as required by Section 15.
City's election to terminate the Construction Contract for default shall be
communicated by giving Contractor a written notice of termination in the manner
speCified for the giving of notices in the Construction Contract. Any notice of
termination given to Contractor by City shall be effective immediately, unless
otherwise provided therein.
16.1.5 Invoke the Performance Bond.
City may, with or without terminating the Construction Contract and reserving to itself
all rights to Losses related thereto, exercise its rights under the Performance Bond.
16.1.6 Additional Provisions.
All of City's rights and remedies under this Construction Contract are cumulative, and
shall be in addition to those rights and remedies available in law or in equity.
Designation in the Contract Documents of certain breaches as material shall not
waive the City's authority to deSignate other breaches as material nor limit City's right
to terminate the Construction Contract, or prevent the City from terminating the
Agreement for breaches that are not material. City's determination of whether there
has been noncompliance with the Construction Contract so as to warrant exercise by
City of its rights and remedies for default under the Construction Contract, shall be
binding on all parties. No termination or action taken by City after such termination
shall prejudice any other rights or remedies of City provided by law or equity or by the
Contract Documents upon such termination; and City may proceed against Contractor
to recover all liquidated damages and Losses suffered by City.
11 Rev. May 6,2010
IFB Construction Contract Template May 6, 2010.DOC
16.2 Delays by Sureties.
Without limiting to any of City·s other rights or remedies, City has the right to suspend the
performance of the Work by Contractor's sureties in the event of any of the following:
(i) The sureties' failure to begin Work within a reasonable time in such manner as to
insure full compliance with the Construction Contract within the Contract Time;
(ii) The sureties' abandonment of the Work;
(iii) If at any time City is of the opinion the sureties' Work is unnecessarily or
unreasonably delaying the Work;
(iv) The sureties' violation of any terms of the Construction Contract;
(v) The sureties' failure to perform according to the Contract Documents; or
(vi) The sureties' failure to follow City's instructions for completion of the Work within the
Contract Time.
16.3 Damages to City.
16.3.1 For Contractor's Default.
City will be entitled to recovery of all Losses under law or equity in the event of
Contractor's default under the Contract Documents.
16.3.2 Compensation for Losses.
In the event that City's Losses arise from Contractor's default under the Contract
Documents, City shall be entitled to withhold monies otherwise payable to Contractor
until Final Completion of the Project. If City incurs Losses due to Contractor's default,
then the amount of Losses shall be deducted from the amounts withheld. Should the
amount withheld exceed the amount deducted, the balance will be paid to Contractor
or its designee upon Final Completion of the Project. If the Losses incurred by City
exceed the amount withheld, Contractor shall be liable to City for the difference and
shall promptly remit same to City.
16.4 Suspension by City for Convenience. .
City may, at any time and from time to time, without cause, order Contractor, in writing, to
suspend, delay, or interrupt the Work in whole or in part for such period of time, up to an
aggregate of fifty percent (50%) of the Contract Time. The order shall be specifically identified
as a Suspension Order by City. Upon receipt of a Suspension Order, Contractor shall, at
City's expense, comply with the order and take all reasonable steps to minimize costs
allocable to the Work covered by the Suspension Order. During the Suspension or extension
of the Suspension, if any, City shall either cancel the Suspension Order or, by Change Order,
delete the Work covered by the Suspension Order. If a Suspension Order is canceled or
expires, Contractor shall resume and continue with the Work. A Change Order will be issued
to cover any adjustments of the Contract Sum or the Contract Time necessarily caused by
such suspension. A Suspension Order shall not be the exclusive method for City to stop the
Work.
16.5 Termination Without Cause.
City may, at its sole discretion and without cause, terminate this Construction Contract in part
or in whole by giving thirty (30) Days written notice to Contractor. The compensation allowed
under this Paragraph 16.5 shall be the Contractor's sole and exclusive compensation for such
termination and Contractor waives any claim for other compensation or Losses, including, but
not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other
consequential, direct, indirect or incidental damages of any kind resulting from termination
without cause.
16.5.1 Compensation.
Following such term ination and within forty-five (45) Days after receipt of a billing from
Contractor seeking payment of sums authorized by this Paragraph 16.5, City shall pay
the following to Contractor as Contractor's sole compensation for performance of the
Work:
12 Rev. May 6, 2010
IFB Construction Contract Template May 6, 201 D.DOe
.1 For Work Performed. The amount of the Contract Sum allocable to the
portion of the Work properly perfonmed by Contractor as of the date of
termination, less sums previously paid to Contractor .
• 2 For Close-out Costs. Reasonable costs of Contractor and its
Subcontractors and Sub-subcontractors for:
(i) Demobilizing and
(ii) Administering the close·out of its participation in the Project
(including, without limitation, all billing and accounting functions, not
including attorney or expert fees) for a period of no longer than thirty
(30) Days after receipt of the notice of termination .
• 3 For Fabricated Items. Previously unpaid cost of any items delivered to the
Project Site which were fabricated for subsequent incorporation in the Work.
16.5.2 Subcontractors.
Contractor shall include provisions In all of its subcontracts, purchase orders and
other contracts permitting tenmination for convenience by Contractor on terms that are
----..... ------...... -conslstentwith this eonstruction Contract'and that afford nogreate rrightsofrecovery-
against Contractor than are afforded to Contractor against City under this Section.
16.6 Contractor's Duties Upon Termination.
Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless
the notice directs otherwise, do the following:
(i) Immediately discontinue the Work to the extent specified in the notice;
(ii) Place no further orders or subcontracts for materials, equipment, services or facilities,
except as may be necessary for completion of such portion of the Work that is not
discontinued;
(iii) Provide to City a description, in writing no later than fifteen (15) days after receipt of
the notice of tenmination, 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 ofthe Work covered and a copy of
the subcontract, purchase order or contract and anywritlen changes, amendments or
modificetions thereto, together with such other information as City may determine
necessary In order to decide whether to accept assignment of or request Contractor
to terminate the subcontract, purchase order or contract;
(Iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions
thereof, that City elects to accept by aSSignment and cancel, on the most favorable
terms reasonably possible, all subcontracts, purchase orders or contracts, or portions
thereof, that City does not elect to accept by assignment; and
(v) Thereafter do only such Work as may be necessary to preserve and protect Work
already in progress and to protect materials, plants, and eqUipment on the Project
Site or In transit thereto.
SECTION 17 CONTRACTOR'S RIGHTS AND REMEDIES.
17.1 Contractor's Remedies.
Contractor may terminate this Construction Contract only upon the occurrence of one of the
following:
IFB Construction Contract Template May 6, 2010.DOC
13 Rev. May 6,2010
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 government, such as a declaration of a
national emergency making material unavailable. This provision shall not apply to any
work stoppage resuijing from the City's issuance of a suspension notice issued either
for cause or for convenience.
17.1.2 For City's Non-Payment.
If City does not make pay Contractor undisputed sums wijhin ninety (90) Days after
receipt of notice from Contractor, Contractor may terminate the Construction Contract
(30) days following a second notice to City of Contractor's intention to terminate the
Construction Contract.
17.2 Damages to Contractor.
In the event of termination for cause by Contractor, City shall pay Contractor the sums
provided for in Paragraph 16.5.1 above. Contractor agrees to accept such sums as its sole
---and exclusive-compensation andagrees-!owaive anyclaim-foroihercompensatlon-or-losses-, _ .. _
including, but no! limited to, loss of anticipated profits, loss of revenue, lost opportunity, or
other consequential, direct, indirect and incidental damages, of any kind.
SECTION 18 ACCOUNTING RECORDS.
10.1 Financial Management and City Access.
Contractor shall keep full and detailed accounts and exercise such controls as may be
necessary for proper financial management under this Construction Contract in accordance
with generally accepted accounting principles and practices. City and City's accountants
during normal business hours, may inspect, audit and copy Contractor's records, books,
estimates, take-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 required by law.
10.2 Compliance with City Requests.
Contractor's compliance with any request by City pursuant to this Section 18 shall be a
condition precedent to filing or maintenance of any legal action or proceeding by Contractor
against City and to Contractor's right to receive further payments under the Contract
Documents. City many enforce Contractor's obligation to provide access to City of its
business and other records referred to in Section 18.1 for inspection or copying by issuance
of a writ or a provisional or permanent mandatory injunction by a court of competent
jurisdiction based on affidavits submitted to such court, without the necessity of oral testimony.
SECTION 19 INDEPENDENT PARTIES.
Each party is acting in its independent capacity and not as agents, employees, partners, or joint
venturers of the other party. City, its officers or employees shall have no control over the conduct of
Contractor or its respective agents, employees, subconsultants, or subcontractors, except as herein
set forth.
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.
14 Rev. May 6,2010
IFB Construction Contract Template May 6, 2010.DOC
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, permtts, and fees, required by the City or other
govemment 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 shall be paid to the Contractor for these items or for delays caused by non-City
inspectors or conditions set forth in the licenses or permits issued by other agencies.
SECTION 22 WAIVER.
A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be
deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or
condition contained herein, whether of the same or a different character.
SECTION 23 GOVERNING LAW.
This Construction Contract shall be construed in accordance with and governed by the laws of the
~'-~-~~"~-StateofCaliforni8:'~---~'~-----'
SECTION 24 COMPLETE AGREEMENT.
This Agreement represents the entire and integrated agreement between the parties and supersedes
all prior negotiations, representations, and contracts, either written or oral. This Agreement may be
amended only by a written instrument, which is signed by the parties.
SECTION 25 SURVIVAL OF CONTRACT.
The provisions of the Construction Contract which by their nature survive termination of the
Construction Contract or Final Completion, including, without limitation, all warranties, indemnities,
payment obligations, and City's right to audit Contractor's books and records, shall remain In full force
and effect after Final Completion or any termination of the Construction Contract.
SECTION 26 PREVAILING WAGES.
This Project is not subject to prevailing wages. The Contractor is not required to pay prevailing wages
in the performance and Implementation of the Project, because the City, pursuant to Its authority as a
chartered city. has adopted Resolution No. 5981 exempting the City from prevailing wages. The City
invokes the exemption from the state prevailing wage requirement for this Project and declares that the
Project is funded one hundred percent (100%) by the CHy of Palo Alto.
SECTION 27 NON APPROPRIATION.
This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo
Alto Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year
in the event that the City does not appropriate funds for the following fiscal year for this event, or (b) at
any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year
and funds for this Construction Contract are no longer available. This section shall take precedence in
the event of a conflict with any other covenant, term, condition, or provision of this Agreement.
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.
15 Rev. May 6,2010
IFB Conslruction ContractTemplale Mays, 2010.DOC
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 and In any dispute described in Paragraph 14.2,
the prevailing party in any action brought to enforce the provision of this Agreement may recover its
reasonable costs 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 H as weil 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 first above written.
CITY OF PALO ALTO PACHECO UTILITY LINE BUILDERS, INC.
!
By:.~ ________________ ___
City Manager Name:, ____________________ ___
APPROVED AS TO FORM: Title: _____ . ______ ___
Senior Asst. City Attorney
16 Rev. May 6, 2010
IFB Construction Contract Template May 6. 201 O.DOC
BID
ITEM
1
2
2010-2011 Overhead Construction Services
IFB NO. 136255
Michaels PAR
BASE BID: Power Electrical
DESCRIPTION BID UNIT BID UNIT BID
QTY UNIT PRICE AMOUNT PRICE AMOUNT
~
~~.
pverhead Services 4-person crew 1 HR $526 $526 $569.99 $569.99
Overhead Services 2-person crew 1 HR $230 $230 $281.56 $281.65
~-
BASE BID TOTAL: $756 $851.64
,
Pacheco I
Utility I
UNIT AM~~~T PRICE
$479.00 $479.QO
$59.00 $59.00
$538.01)
All Day
Electric
UNIT
PRICE
$525.00
$260.00
BID
AMOUNT
$525.00
$260.00
$785.00
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