HomeMy WebLinkAboutStaff Report 1663City of Palo Alto (ID # 1663)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 7/25/2011
July 25, 2011 Page 1 of 9
(ID # 1663)
Summary Title: Art Center Construction Contracts
Title: Approval of a Budget Amendment Ordinance in the amount of $3,545,904
for Improvements to the Palo Alto Art Center; Approval of a Contract in the
Amount of $5,123,800 with Big D Pacific, Inc., for Improvements to the Palo Alto
Art Center; Approval of a Contract in the Amount of $369,920 with Mark
Cavagnero Associates for Construction Administration Services and Approval of
Contract Amendment 1 for Construction Management Services in the Amount of
$344,705 with Nova Partners (PF-07000)
From:City Manager
Lead Department: Public Works
Recommendations
Staff recommends that Council:
1.Adopt a Budget Amendment Ordinance (Attachment A) in the amount of
$3,545,904 for the construction of electrical, mechanical, roofing, deferred
maintenance, a children’s wing, paving and other improvements to the Palo Alto
Art Center (PF-07000);
2.Approve and authorize the City Manager or his designee to execute a contract
(Attachment B) with Big-D Pacific Builders, Inc., in the amount of $5,123,800 for
construction of improvements at the Palo Alto Art Center. Of this amount
$4,606,197 will come from Capital Improvement Project (CIP) PF-07000, Art
Center Electrical and Mechanical Improvements, $353,084 will come from CIP
PE-11012, Temporary Main Library and $164,500 will come from CIP PF-93009,
Americans with Disabilities Act Compliance
3.Authorize the City Manager or his designee to negotiate and execute one or
more change orders to the contract with Big-D Pacific Builders, Inc., for related,
additional but unforeseen work which may develop during the project, the total
value of which shall not exceed $1,024,760. Of this amount $973,000 will come
from Capital Improvement Project (CIP) PF-07000, Art Center Electrical and
Mechanical Improvements, $35,308 will come from CIP PE-11012, Temporary
Main Library and $16,450 will come from CIP PF-93009, Americans with
Disabilities Act (ADA) Compliance;
July 25, 2011 Page 2 of 9
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4.Approve and authorize the City Manager to execute Amendment No. One
(Attachment C) to contract S11139458 with Nova Partners, Inc., to add up to
$344,705 for construction management services for the Palo Alto Art Center.
This amount includes $314,705 for basic services and $30,000 for additional
services, for a total amount not to exceed $422,705
5.Approve and authorize the City Manager to execute a contract (Attachment D)
with Mark Cavagnero Associates, Inc., in the amount of $369,920 for
construction administration services for the Palo Alto Art Center. This amount
includes $321,670 for basic services and $48,250 for additional services.
Background
The 28,000 square foot Art Center facility and its building infrastructure and systems
have not been significantly upgraded since the facility was constructed in 1951 as Palo
Alto’s City Hall. The only major repairs made to the facility have been seismic
improvements in 1987.
In 1999, the Palo Alto Art Center Foundation began to address the need for renovations
proactively by focusing on two programmatic concerns and facility challenges: 1) the
need for upgrades to the gallery spaces of the Art Center to support the popular
exhibition program, and 2) the need for additional children’s art classrooms and
program space to meet the demand in the community. In March 1999, the City Council
approved a proposal from the Palo Alto Art Center Foundation to explore the
development of a public/private partnership that would make possible a capital
campaign to expand and renovate the Art Center.
In August 2001, a Joint Site Planning Committee comprised of City and Art Foundation
representatives was convened with the goal of developing a site design that would
allow the Main Library and the Art Center to expand while addressing the limitations
and opportunities offered by the site, neighborhood considerations, and the desires of
community stakeholders. In September 2001, the Art Center Foundation received a
second $50,000 grant request from the David and Lucile Packard Foundation that was
matched by the City (CMR:226:02). Using these funds, the Art Foundation contracted
with Mark Cavagnero Associates in association with SWA Group to develop the joint site
plan. The resulting Site Planning Study for the Palo Alto Main Library and Art Center
was completed on February 8, 2002. A Public Draft Environmental Impact Review (EIR)
of the site was prepared for the City of Palo Alto by Thomas Reid Associates and
completed on April 17, 2002.
In 2002, Mark Cavagnero Associates continued work on the master plan and design for
the Palo Alto Art Center improvements, which were reviewed and approved by the
Architectural Review Board. A Memorandum of Understanding (MOU) was approved
unanimously by Council at its July 15, 2002 meeting (CMR:340:02), describing the City’s
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commitment to contribute $5M to finance a fund set up through a public/private
partnership over five years. This MOU was intended to go into effect upon successful
passage of a library bond measure in November 2002. However, the bond measure was
ultimately unsuccessful.
In the spring of 2003, the Art Foundation Board unanimously voted to commit to the
implementation of the master plan for the Art Center. Supported by a $10,000 grant
from the Non-Profit Finance Fund, the Art Foundation worked with fundraising and
organizational development consultants to prepare for the possibility of a future capital
campaign.
In 2005, the Art Foundation contracted with Mark Cavagnero Associates to develop the
improvements to the building, including a children’s area. Since then, the City and Art
Foundation have continued in a partnership for the building improvements, with the Art
Foundation maintaining the design contract with Mark Cavagnero Associates. Now that
the project is about to begin construction, the contract with Mark Cavagnero Associates
will shift to the City, per a Construction Agreement between the City and the Art
Foundation for the management of the bid and construction, represented in a
Construction Funding Agreement that was approved by Council on February 7, 2011
(Staff Report 1301). Staff Report 1301 also contains a detailed history of the project
and the various agreements between the City and the Art Foundation.
Discussion
Art Center Facility Improvements:
The City’s scope of work includes mechanical, electrical and accessibility upgrades to
the facility, while the Art Foundation’s scope of work includes the creation of a
Children’s Wing and an upgrade of the exhibition galleries. While the scope of City-
sponsored work differs from the Art Foundation-sponsored work, both parties agree
that it will be more efficient, cost-effective, and less disruptive to the community to
have the work completed concurrently.
In addition to the above-mentioned electrical, mechanical and Children’s Wing
improvements, the City has added deferred-maintenance items to the project such as a
new roof, new gutters, new downspouts, seismic upgrade to roofing envelope, exterior
painting, additional interior painting, termite treatment and dry rot repairs, new window
safety glazing, exterior lighting improvements and parking lot maintenance. While
these items will increase the construction cost, they will result in an overall cost-savings
by including them as part of a larger project and by making these repairs now when the
construction climate is favorable. It will also eliminate future construction disruption to
the Art Center’s occupants and patrons. The roof, which is the most costly of the
deferred maintenance items, had been scheduled for replacement in FY 2014, shortly
after completion of the Art Center rehabilitation project. Funding for the roof had been
planned for a future CIP PF-14001, ($200,000) however, that roofing estimate did not
include the seismic upgrades that would be needed, which will increase the roofing
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cost. The seismic work is desirable in order to provide better protection for the building
and its occupants and will be easier to accomplish now that the roofing is part of a
larger project. The roof replacement and funding for the remaining unfunded costs
would be paid from the Infrastructure Reserve. In addition, the City has added 1
percent of the construction cost as funding for public art.
Temporary Main Library:
The Art Center auditorium was identified as the preferred location for a temporary
library during the renovation of the adjacent Main Library (CMR:435:10). The
auditorium was not part of the Art Center improvement project, but will have improved
lighting, carpeting and other amenities added as part of the temporary library work.
Combining the library’s auditorium upgrade with the rest of the Art Center project will
result in a better price for the auditorium work and will not involve the disruption of
shutting off the auditorium for temporary library conversion work shortly after opening
the new Art Center. Having the same electricians, painters and other trades for both the
auditorium and the Art Center work will result in a better work product and require less
staff oversight than managing two separate contractors.
Contractor Prequalification
Given the size, complexity and location of the Art Center project, staff wanted to ensure
that any contractor selected would be capable of completing the project at a high level
of quality and in a timely fashion. In March 2011, a Request for Prequalification of
Bidders was advertised and posted at local Builder’s Exchanges. Any contractor who
intended to submit a bid was required to complete a questionnaire that presented the
company’s financial status, ability to obtain bonding, experience on similar structures,
and references. The application focused on essential requirements for public bids,
history and organizational performance, safety, LEED and relevant technical experience,
performance on recent projects, historical building experience and customer feedback.
Approved companies demonstrated a successful, established organization with a
positive track record in similar public projects. Of the 12 applicants, 6 contractors
passed the initial review. Project data sheets showing relevant, successful work of
significant dollar value were the main differentiators.
A notice inviting formal bids (IFB) for the Palo Alto Art Center improvements was sent
to the six pre-qualified contractors. The bidding period was 28 days. Bids were
received from 2 contractors on June 28, 2011, as listed on the attached bid summary
(Attachment E). Bids ranged from a low of $5,165,139 to a high of $5,638,120. These
prices include the cost for two bids Add Alternates. The low bidder is determined based
on the cost of the base bid plus all bid alternates. The construction manager, Nova
Partners, contacted the four firms that chose not to submit a bid and the response from
the firms was that they did not submit because it was not a prevailing wage job.
Summary of Bid Process
Bid Name/Number IFBXX Palo Alto Art Center Improvements
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Proposed Length of Project 12 months
Number of Bids Mailed to
Contractors
6
Number of Bids Mailed to Builder’s
Exchanges
N/A (prequalified contractors only)
Total Days to Respond to Bid 28
Pre-Bid Meeting?Yes
Number of Company Attendees at
Pre-Bid Meeting
16
Number of Bids Received 2
Bid Price Range*Low of $5,165,139 to a high of $5,638,120 with
the inclusion of Add Alternates B and C
*Bid summary provided in Attachment E
Staff has reviewed all bids submitted and recommends that Big-D Pacific Builders, Inc.
be declared the lowest responsible bidder. Staff recommends that the City award the
Base Bid ($5,040,000) plus Add Alternate B ($83,800) for a total contract award of
$5,123,800. Add Alternate B includes the cost for new sewer lines, safety glass and
flooring hazardous material abatement and replacement flooring. The base bid of
$5,040,000 by Big-D Pacific, Inc., is approximately 7 percent above Mack 5’s estimate
of $4,692,000, however, Mack 5’s estimate was prepared shortly before the final
completion of the design plans and did not include certain deferred maintenance items
such as a new roof, roof-related seismic upgrades, parking lot repaving, etc.
Staff confirmed with the Contractor’s State License Board that the contractor has an
active license on file. Staff checked references supplied by the contractor for previous
work performed and found no major complaints.
A construction contingency amount of 20 percent is requested for the Art Center
renovation because of the age and accuracy of the as-built plans used to prepare the
current construction documents; the historic nature of the project; as well as the
increased potential for unforeseen building conditions such as termites or dry rot. For
comparison, a contingency of 25 percent was used for the renovation of the historic
College Terrace Library (although only 16 percent was actually used). For work on the
Temporary Main Library (PE-11012) and its related ADA compliance items (PF-93009),
10 percent of the estimated construction cost was added to the overall contingency
budget as these work items are relatively small and straightforward in scope.
Nova Partners Contract Amendment –Construction Management
With the library and Community Center Measure N bond projects now under
construction, the project administration workload for this project is beyond what Public
Works staff can administer without assistance. Amendment No. 1 to the contract with
Nova Partners (Attachment C) will provide for staff from Nova to supplement Public
Works staff during the construction of the Art Center. Nova Partners will be present on
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the job site to oversee the contractor’s work, provide liaison for and resolve issues
common to the City, architect and contractor and to track contractor design queries and
progress payments to ensure that they are properly answered and recorded.
City staff will oversee the construction management of the Temporary Main Library
portion of construction but will work closely with Nova Partners throughout the job.
Mark Cavagnero Associates Contract –Construction Administration
The contract with the design architect, Mark Cavagnero Associates (Attachment D) will
provide for the architect’s general construction administration oversight during the
construction phase of the Art Center. As the designer of record, under this contract
Mark Cavagnero Associates will respond to design questions and issues raised by the
contractor, attend meetings at the job site, oversee green building submissions and
assist in the preparation of the record documents.
Group 4 Architecture is the lead for the Measure N library and community center bond
measure design, and will be involved in the construction administration for the
Temporary Main Library portion of the work.
Resource Impact
The Temporary Main Library will be constructed within the auditorium of the Art Center.
Since the auditorium is part of an overall Art Center construction contract bid package,
it would have been difficult for the contractor to segregate the electrical, paint, carpet
and other improvement items as separate bid items. Instead, the construction
manager, Nova Partners, prepared an estimated cost of $388,392 (including 10 percent
contingency) to construct the Temporary Main Library improvements within the
auditorium. That cost is bondable under the Measure N Library and Community Center
bond measure and will be encumbered to the construction contract through CIP PE-
11012, Temporary Main Library. During construction the temporary library costs will be
tracked separately from the Art Center improvement costs.
In order to keep pace with the Art Center construction schedule, design contingency
funds from the Main Library were used to pay for the initial design of the temporary
Main Library. A new CIP for the Temporary Main Library (PE-11012) was established as
part of the Fiscal Year 2011 mid-year budget and any Main Library (PE-11000) funds
that were used for the Temporary Main Library in the past will be transferred to the
new CIP.
Since work on the Art Center (PF-07000) and the Temporary Main Library (PE-11012)
are both included in one construction contract, a portion of the construction and
construction administration contracts for Big-D Pacific and Mark Cavagnero Architects
will also be paid from library bond measure money. The share paid by the Temporary
Main Library CIP for these two contracts is equal to the proportional value of the
temporary Main Library’s construction cost to the construction cost of the overall Art
Center improvements. Proportional costs for the construction manager, Nova Partners,
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is not included in the cost-sharing as the renovation of the auditorium is a relatively
small project that can be managed by staff.
Art Center (PF-
07000)
Temp Main
Library (PE-
11012)
ADA
Compliance
(PF-93009)
Total
Construction
Contract
Amount
Contract, Bid-D
Pacific Builders
$4,606,197 $353,084 $164,500 $5,123,800
Construction
Change Orders,
Bid-D Pacific
Builders
$ 973,000 $ 35,308 $ 16,450 $1,024,760
Subtotal, Big-D
(Construction):
$5,579,197 $388,392 $180,950 $6,148,560
Nova Partners-
Construction Mgmt
$314,705
Nova Partners-
Additional Services
$ 30,000
Subtotal, Nova
(Construction
Mgmt):
$344,705
MCA Architect –
Construction
Admin
$285,322 $24,768 $11,580 $321,670
MCA Architect-
Additional Services
$ 42,798 $3,715 $1,737 $48,250
Subtotal, MCA
(Construction
Admin):
$328,120 $28,483 $13,317 $369,920
TOTALS:$6,252,022 $416,875 $194,267 $6,863,164
The original budget for the Art Center project was $4,340,000. The extent and cost of
additional deferred maintenance items was being developed in tandem with the budget
process (Staff Report 1301, Feb 7, 2011) and was unknown until more detail could be
added to the design plans.
The Budget Amendment Ordinance (Attachment A) is necessary to accept and approve
expending the Art Foundation contribution up to $2,000,000, of which $1,250,000 has
been deposited with the City. The remaining Art Foundation contribution beyond
$1,250,000 will be on a reimbursable basis at the conclusion of the project once actual
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costs have been reconciled. In addition the inclusion of deferred maintenance costs in
the project makes it necessary for additional funding. To minimize the impact of the
draw on the Infrastructure Reserve staff has identified surplus funding in the amount of
$1,330,000 from recently completed projects. One project, the Public Safety Building
(PE-98020) has been inactive and much of the funding has been returned to the
Infrastructure Reserve. If significant design work is required on the project in the
future, staff will need to return with a request for additional funding. The net impact to
the Infrastructure Reserve will be a reduction of $965,904.
Construction Funding Agreement with Art Foundation
On February 7, 2011, the Council approved a Construction Funding Agreement between
the Art Foundation and the City where the Art Foundation agreed to fund a major
portion of the project upgrade (Staff Report 1301). The Construction Funding
Agreement outlines the administrative, reporting, and financial requirements of both
parties. As outlined in this Agreement, the City will manage the construction project and
the Art Foundation will fund their proportion of these costs. Construction management
services have also been added to the cost-sharing agreement due to current staffing
shortfalls related to the Measure N Library and Community Center bond project
workload. The City’s portion of the funding for the renovation was approved in the FY
2007 Capital Improvement Program project budget (Art Center Electrical and
Mechanical Upgrades, PF-07000) and currently has $3,856,000 (which does not include
monies raised by the Art Foundation) of funding appropriated. The Art Foundation has
already deposited $1,250,000 with the City and has raised the additional funds required
to deposit for the Art Foundation’s portion by the completion of construction. The Art
Foundation will contribute up to a maximum of $2,000,000 toward the construction
portion of the improvement project.
Policy Implications
Approval of these contracts is consistent with Council’s direction to reduce the deferred
maintenance backlog on City facilities.
Timeline
Art Center staff has been relocated to new spaces at the Lucie Stern Center and
Cubberley Community Center and hazardous material removal at the Art Center has
been completed. Construction on the remaining Art Center renovations will begin
shortly after approval of the construction contract. Construction is expected to last for
one year and be completed in approximately August 2012.
A temporary Main Library is included in the Art Center construction package and while it
will be completed at the same time as the Art Center improvements, it will not be used
as a library until the Main Library is closed for renovation. The Main Library will not be
closed until the new Mitchell Park Library is opened in the summer of 2012.
Environmental Review
July 25, 2011 Page 9 of 9
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The Art Center Electrical and Mechanical Upgrades project was determined to be
exempt from the California Environmental Quality Act (CEQA) review pursuant to
Section 15301, “existing facilities.”
Attachments:
·A -BAO -PF-070000 Palo Alto Art Center improvements (DOC)
·B -Big D Pacific Contract (PDF)
·C -Nova Amendment 1 (PDF)
·D -MCA Contract (PDF)
·E -Bid Summary sheet (PDF)
Prepared By:Karen Bengard, Senior Engineer
Department Head:J. Michael Sartor, Interim Director
City Manager Approval: James Keene, City Manager
Attachment A
ORDINANCE NO.XXXX
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO
AMENDING THE BUDGET FOR THE FISCAL YEAR 2012 TO PROVIDE
AN ADDITIONAL APPROPRIATION OF $3,545,904 TO CAPITAL
IMPROVEMENT PROGRAM (CIP) PROJECT PF-07000, ART CENTER
ELECTRICAL & MECHANICAL UPGRADES
The Council of the City of Palo Alto does ordain as follows:
SECTION 1. The Council of the City of Palo Alto finds
and determines as follows:
A. Pursuant to the provisions of Section 12 of Article III of
the Charter of the City of Palo Alto, the Council on June 20, 2011
did adopt a budget for fiscal year 2012; and
B.In fiscal year 2007, the City Council appropriated an
initial amount of $290,000 for CIP Project PF-07000(Project) to
provide replacement of the mechanical and electrical equipment and
systems at the Palo Alto Art Center. In fiscal year 2009, Council
increased the appropriation by $1,450,000, and in fiscal year
2011, Council further increased the project funding by $2,600,000
bringing the total appropriation to $4,340,000; and
C. The 28,000 square foot Art Center facility and its
building infrastructure and systems have not been significantly
upgraded since the facility was constructed in 1951. In March
1999, the City Council approved a proposal from the Palo Alto Art
Center Foundation to explore the development of a public/private
partnership that would make possible a capital campaign to expand
and renovate the Art Center; and
D. In 2001, a Joint Site Planning Committee comprised of City
and Art Foundation representatives began developing a site design
that would allow the Main Library and the Art Center to expand
while addressing the limitations and opportunities offered by the
site, neighborhood considerations, and the desires of community
stakeholders. In September 2001, the Art Center Foundation
received a second $50,000 grant request from the David and Lucile
Packard Foundation that was matched by the City (CMR:226:02).
Using these funds, the Art Foundation contracted with the Mark
Cavagnero Associates in association with SWA Group to develop the
joint site plan. The resulting Site Planning Study for the Palo
Alto Main Library and Art Center was completed on February 8,
2002; and
E. In 2002, Mark Cavagnero Associates continued work on the
master plan and conceptual design for the Palo Alto Art Center and
site. The plan was completed on June 14, 2002 and approved by
Council. A Memorandum of Understanding (MOU) was approved by
Council at its July 15, 2002 meeting describing the City’s
commitment to contribute $5M to finance a fund set up through a
public/private partnership over five years. This MOU was intended
to go into effect upon successful passage of a library bond
measure in November 2002. However, the bond measure was ultimately
unsuccessful; and
F. In 2003, supported by a $10,000 grant from the Non-Profit
Finance Fund, the Art Foundation worked with fundraising and
organizational development consultants to prepare for the
possibility of a future capital campaign. The Art Foundation has
committed $2 million to the project, of which the City has
received $1.25 million to date, which will be transferred into the
Infrastructure Reserve; and
G. In 2005, the Art Foundation contracted with Mark Cavagnero
Associates to develop the improvements to the building,including
a children’s area. Since then, the City and Art Foundation have
continued in a partnership for the building improvements, with the
Art Foundation maintaining the design contract with Mark Cavagnero
Associates. Now that the project is about to begin construction,
the contract with Mark Cavagnero Associates will shift to the
City, per a Construction Agreement between the City and the Art
Foundation for the management of the bid and construction,
represented in a Construction Funding Agreement approved by
Council on February 7, 2011 (Staff Report 1301); and
H.The City’s scope of work includes mechanical, electrical
and accessibility upgrades to the facility, while the Art
Foundation’s scope of work includes the creation of a Children’s
Wing and an upgrade of the exhibition galleries. While the scope
of City-sponsored work differs from the Art Foundation-sponsored
work, both parties agree that it will be more efficient, cost-
effective, and less disruptive to the community to have the work
completed concurrently.
I. In addition to the above-mentioned electrical, mechanical
and Children’s Wing improvements, the City will also now add
deferred-maintenance items to the project such as a new roof, new
gutters, new downspouts, seismic upgrade to roofing envelope,
exterior painting, new carpets, additional interior painting,
termite treatment and dry rot repairs, new window safety glazing,
exterior lighting improvements and parking lot maintenance. While
these items will increase the construction cost, they will result
in an overall cost-savings by including them as part of a larger
project and by making these repairs now when the construction
climate is favorable. It will also eliminate future construction
disruption to the Art Center’s occupants and patrons; and
J. The Art Center auditorium will become a temporary library,
under a separate Capital Improvement Project (PE-11012), during
the renovation of the adjacent Main Library. The auditorium was
not part of the Art Center improvement project, but will have
improved lighting, carpeting and other amenities added as part of
the temporary library work. Combining the library’s auditorium
upgrade with the rest of the Art Center project will result in a
better price for the auditorium work and will not involve the
disruption of shutting off the auditorium for temporary library
conversion work shortly after opening the new Art Center. Having
the same electricians, painters and other trades for both the
auditorium and the Art Center work will result in a better work
product and require less staff oversight than managing two
separate contractors; and
K. A notice inviting formal bids for the Palo Alto Art Center
improvements was sent to six pre-qualified contractors. Staff
recommends that Big-D Pacific Builders,Inc. be declared the
lowest responsible bidder with a bid of $5,123,800, and that a
contingency of 20 percent be included; and
L. With the library and Community Center Measure N bond
projects now under construction, the project administration
workload for this project is beyond what Public Works staff can
administer without assistance. Nova Partners will supplement
Public Works staff during the construction of the Art Center and
will oversee the contractor’s work, provide liaison for and
resolve issues common to the City, architect and contractor, and
track contractor design queries and progress payments. Mark
Cavagnero Associates will respond to design questions and issues
raised by the contractor, attend meetings at the job site, oversee
green building submissions and assist in the preparation of the
record documents. The Art Center Project will pay a portion of
these contracts for construction administration; and
M. Additional funding of $1,330,000 will be transferred from
various completed or reduced Capital Improvement Projects with the
appropriations returned to the Infrastructure Reserve as
summarized in the table below; and
Description Amount
Transfer appropriation from
project PE-05010 (College Terrace
Library Project)
$450,000
Transfer appropriation from
project PF-01002 (Civic Center
Improvements project)
$300,000
Transfer appropriation from
project PE-09002 (Greer Park
Improvements Project)
$200,000
Transfer appropriation from
project PE-07005 (California
Avenue Improvements Project Phase
I)
$ 80,000
Transfer appropriation from
project PE-98020 (Public Safety
Building Project)
$300,000
Total returned to IR $1,330,000
N. City Council authorization is needed to amend the 2012
budget to make available the funds needed for CIP Project PF-
07000, Art Center Electrical & Mechanical Upgrades.
SECTION 2. The appropriation for CIP Project PF-07000, Art
Center Electrical & Mechanical Upgrades is hereby increased by
Three Million Five Hundred Forty-Five Thousand Nine Hundred Four
Dollars ($3,545,904).
SECTION 3.The appropriation for CIP Project PE-05010 College
Terrace Library Project is hereby decreased by Four Hundred Fifty
Thousand Dollars ($450,000) and the funds are returned to the
Capital Fund Infrastructure Reserve.
SECTION 4.The appropriation for CIP Project PF-01002 Civic
Center Improvements project is hereby decreased by Three Hundred
Thousand Dollars ($300,000) and the funds are returned to the
Capital Fund Infrastructure Reserve.
SECTION 5.The appropriation for CIP Project PE-09002 Greer
Park Improvements Project is hereby decreased by Two Hundred
Thousand Dollars ($200,000) and the funds are returned to the
Capital Fund Infrastructure Reserve.
SECTION 6.The appropriation for CIP Project PE-07005
California Avenue Improvements Project Phase I is hereby decreased
by Eighty Thousand Dollars ($80,000) and the funds are returned to
the Capital Fund Infrastructure Reserve.
SECTION 7.The appropriation for CIP Project PE-98020 Public
Safety Building Project is hereby decreased by Three Hundred
Thousand Dollars ($300,000) and the funds are returned to the
Capital Fund Infrastructure Reserve.
SECTION 8.One Million Two Hundred Fifty Thousand Dollars
($1,250,000) is hereby transferred from the Public Works
Department Capital Budget to CIP Project PF-07000, Art Center
Electrical & Mechanical Upgrades,as part of the donation from the
Art Foundation.
SECTION 9.Two Million Two Hundred Ninety-Five Thousand Nine
Hundred Four Dollars ($2,295,904)is hereby transferred from the
Capital Project Fund Infrastructure Reserve to CIP Project PF-
07000, Art Center Electrical & Mechanical Upgrades.
SECTION 10.The transactions above will reduce the balance of
the Infrastructure Reserve to Three Million Four Hundred Eleven
Thousand Seven Hundred Sixty-Three Dollars ($3,411,763).
SECTION 11.As specified in Section 2.28.080(a) of the Palo
Alto Municipal Code, a two-thirds vote of the City Council is
required to adopt this ordinance.
SECTION 12. As provided in Section 2.04.330 of the Palo Alto
Municipal Code, this ordinance shall become effective upon
adoption.
SECTION 13. The Council of the City of Palo Alto hereby finds
that this project is categorically exempt from the provisions of
the California Environmental Quality Act (CEQA) under Section
15301 of the CEQA Guidelines as repair, maintenance and/or minor
alteration of existing facilities and no further environmental
review is necessary.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST:APPROVED:
City Clerk Mayor
APPROVED AS TO FORM:
City Manager
Senior Asst. City Attorney Director of Public Works
Director of Administrative
Services
CONSTRUCTION CONTRACT
Contract No. C12141803
City of Palo Alto
and
Big-D Pacific Builders, LP
PROJECT
PALO ALTO ART CENTER RENOVATION
PROJECT
Rev. August 3, 2010
CONSTRUCTION CONTRACT
TABLE OF CONTENTS
SECTION 1. 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 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 ..............................................................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
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SECTION 8. STANDARD OF CARE.......................................................................................5
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.............................................................6
SECTION 13. NOTICES ............................................................................................................7
13.1 Method of Notice.................................................................................................................7
13.2 Notice Recipients................................................................................................................7
13.3 Change of Address.............................................................................................................8
14.1 Resolution of Contract Disputes.......................................................................................8
14.2 Resolution of Other Disputes............................................................................................8
14.2.1 Non-Contract Disputes.................................................................................................8
14.2.2 Litigation, City Election.................................................................................................8
14.3 Submission of Contract Dispute.......................................................................................9
14.3.1 By Contractor...............................................................................................................9
14.3.2 By City..........................................................................................................................9
14.4 Contract Dispute Resolution Process ..............................................................................9
14.4.1 Direct Negotiations.......................................................................................................9
14.4.2 Deferral of Contract Disputes.....................................................................................10
14.4.3 Mediation....................................................................................................................10
14.4.4 Binding Arbitration......................................................................................................10
14.5 Non-Waiver........................................................................................................................11
SECTION 15. DEFAULT..........................................................................................................12
15.1 Notice of Default ...............................................................................................................12
15.2 Opportunity to Cure Default.............................................................................................12
SECTION 16. CITY'S RIGHTS AND REMEDIES....................................................................12
16.1 Remedies Upon Default ...................................................................................................12
16.1.1 Delete Certain Services .............................................................................................12
16.1.2 Perform and Withhold ................................................................................................12
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16.1.3 Suspend The Construction Contract..........................................................................12
16.1.4 Terminate the Construction Contract for Default........................................................12
16.1.5 Invoke the Performance Bond....................................................................................12
16.1.6 Additional Provisions..................................................................................................13
16.2 Delays by Sureties............................................................................................................13
16.3 Damages to City................................................................................................................13
16.3.1 For Contractor's Default.............................................................................................13
16.3.2 Compensation for Losses ..........................................................................................13
16.5 Suspension by City for Convenience .............................................................................13
16.6 Termination Without Cause.............................................................................................14
16.6.1 Compensation............................................................................................................14
16.6.2 Subcontractors...........................................................................................................14
16.7 Contractor’s Duties Upon Termination...........................................................................14
SECTION 17. CONTRACTOR'S RIGHTS AND REMEDIES ..................................................15
17.1 Contractor’s Remedies ....................................................................................................15
17.1.1 For Work Stoppage....................................................................................................15
17.1.2. For City's Non-Payment.............................................................................................15
17.2 Damages to Contractor....................................................................................................15
SECTION 18. ACCOUNTING RECORDS...............................................................................15
18.1 Financial Management and City Access.........................................................................15
18.2 Compliance with City Requests ......................................................................................15
SECTION 19. INDEPENDENT PARTIES................................................................................15
SECTION 20. NUISANCE........................................................................................................16
SECTION 21. PERMITS AND LICENSES...............................................................................16
SECTION 22. WAIVER............................................................................................................16
SECTION 23 GOVERNING LAW ...........................................................................................16
SECTION 24 COMPLETE AGREEMENT ..............................................................................16
SECTION 25 SURVIVAL OF CONTRACT.............................................................................16
SECTION 26 PREVAILING WAGES......................................................................................16
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SECTION 27 NON APPROPRIATION ...................................................................................16
SECTION 28 GOVERNMENTAL POWERS...........................................................................16
SECTION 29 ATTORNEY FEES ............................................................................................16
SECTION 30 SEVERABILITY ................................................................................................16
5) Technical Specifications
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 limitation, 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.
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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
not later than .
within three hundred and sixty-five calendar days (365) 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 the Work within the Contract Time, City will 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 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 Contract Sum of five million, one hundred tenty-three, eight
hundred dollars ($5,123,800.00).
[This amount includes the Base Bid and Add Alternates $5,040,000.00 and
$83,800.00.]
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. 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. A lump sum agreed upon by City and Contractor, based on the estimated Allowable
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 or to 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.
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SECTION 8 STANDARD OF CARE.
Contractor agrees that the Work shall be performed 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.
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;
(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 activities of Contractor or its Subcontractors or Sub-subcontractors,
of any tier, either 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 shall obligate Contractor to indemnify any Indemnitee for Losses
resulting from the sole 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 penalties for violation thereof, and will comply with 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 it has obtained
insurance and Performance and Payment Bonds satisfying all requirements in Article 11 of the General
Conditions. Failure to do so shall be deemed a material breach of this Construction Contract.
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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 transfer 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 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.
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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 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: City of Palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
Copy to: City of Palo Alto
Public Works
Administration
250 Hamilton Avenue
Palo Alto, CA 94301
Attn: Karen Bengard
Or
City of Palo Alto
Utilities Engineering
250 Hamilton Avenue
Palo Alto, CA 94301
Attn:
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.
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All notices, demands, requests or approvals from City to Contractor shall be addressed to:
BIG-D PACIFIC BUILDERS
6210 Stoneridge Mall Road #460
Pleasanton, CA 94566
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
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-
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
performance of any provision of the Contract Documents.
14.2.2 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 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.
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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 pursuant to 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 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
(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.
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) 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 and/or 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
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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 been 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.
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 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 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.
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.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
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 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 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.
.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 arbitrator 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
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 City each voluntarily waives its right to
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.
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SECTION 15 DEFAULT.
15.1 Notice of Default.
In the event that 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 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 default in performance of its obligations
under the Contract Documents within 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 written notice.
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 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 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.
City may, without terminating the Construction Contract and reserving to itself 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.
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141803 Construction Contract Big-D.DOC 12
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.
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.
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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 termination 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 :
.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 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 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 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 termination, 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 subcontract, purchase order or contract and any written changes, amendments or
modifications 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.
Rev. August 3, 2010
141803 Construction Contract Big-D.DOC 14
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:
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 resulting 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 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.
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.
SECTION 18 ACCOUNTING RECORDS.
18.1 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.
18.2 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.
Rev. August 3, 2010
141803 Construction Contract Big-D.DOC 15
Rev. August 3, 2010
141803 Construction Contract Big-D.DOC 16
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 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
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 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 City of Palo Alto.
Or
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 et seq. and Section 1773.1 of the California Labor
Code. Pursuant to the provisions of Section 1773 of the Labor Code of the 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 of the Labor Code.
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.
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 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 first above written.
Rev. August 3, 2010
141803 Construction Contract Big-D.DOC 16
CITY OF PALO ALTO
____________________________
Purchasing Manager
City Manager
APPROVED AS TO FORM:
___________________________
Senior Asst. City Attorney
APPROVED:
___________________________
Public Works Director
CONTRACTOR
BIG-D PACIFIC BUILDERS, LP
By:___________________________
Name:_________________________
Title:________________________
1 Rev. August 3,
2010
141803 Construction Contract Big-D.DOC
City of Palo Alto
Palo Alto Art Center Renovation Project
IFB Numer 141803
Bid Date -June 28th,20 11 @ 3PM
...........
BID SUMMARY SHEET
Bid Item Description WATbomas BigD
1 Lump sum bid $5,285,000 $4..•780,000
2 Allowance for unseen MlEIP 60,000 60,000
3 Casework Allowance 20,000 20,000
4 Termite Repair Allowance 30,000 30,000
5 HardscapelPaving repair Allowance 50,000 50,000
6 Site Lighting Allowance 10,000 10,000
7 Potholing Allowance 10,000 10,000
8 Exterior Signage Allowance 15,000 15,000
9 Floor Prep at Exposed concrete allowance 15,000 15,000
10 Replace roof insulation,felt,replace with new 50,000 50,000
BASE BID TOTAL $5,545,000 $5,040,000
Bid Alternates B
1 Replace Sewer line 15,000 9,800
2 Replace Window Glazing at lower windows to safety glass 45,000 '36,000.3 Abate and replace flooring at studio 134 33,000 38,000
SUBTOTAL $93,000 $83,800
Bid Alterantes C
1 Conductor to Panel A 12 4,045
2 Conductor to Panel C 18 5,579
3 Conductor to Panel E 19 6,224
4 Conductor to Panel F 10 4,570
5 Conductor to Panel G 18 8,291
6 Conductor to Panel H 9 5,516
7 Conductor to Panel 0 10 4,500
8 Conductor to Panel A 24 2,614
SUBTOTAL $120 $41,339
Base Bid Total .5,545,000 5,040,000
Add Alternates B 93,000 83,800
Add Alternate C 120 41,339
GRAND TOTAL $5,638,120 $5,165,139