HomeMy WebLinkAbout2004-04-19 City Council (11)City of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS 6
DATE:APRIL 19, 2004 CMR:219:04
SUBJECT:REQUEST FOR APPROVAL TO INCREASE CONTINGENCY
AUTHORITY FOR KUEHNE CONSTRUCTION CONTRACT
C04100292 IN THE AMOUNT OF $24,000 FOR THE BAYLANDS
INTERPRETIVE CENTER ROOF REPLACEMENT -CAPITAL
IMPROVEMENT PROGRAM PROJECT PF-00006
RECOMMENDATION
S~aff recommends that Council authorize the City Manager or his designee to execute one
or more change orders to .the contract with Kuehne Construction for the Baylands
Interpretive Center Roof Replacement - Capital Improvement Program Project PF-00006,
the total value of which shall not exceed $36,000. This is an increase to the original
contingency of $24,000.
DISCUSSION
On November 24, 2003, Council awarded a contract to Kuehne Construction for the
B aylands Interpretive Center built-up roof replacement project in the amount of $1 i 1,800,
and contingency funds of $12,000 (CMR:536:03). Once the roofing material was
¯ removed and the roof deck inspected, it was determined that upgraded insulation should
be installed for proper drainage and sound insulation. Contingency funds were used for
this upgraded insulation. During the course of construction, additional damage to the
laminated beams was found, requiring repair and fabrication of sheet metal caps for the
lower roof laminated beams.
Work to be accomplished with the increased change order authority includes fabrication
and installation of sheet metal caps and the repair of additional damage to the exposed
laminated beams on the lower roof. In addition, repairs to the building structure and facia
boards are included.
RESOURCE IMPACT
The funding for this project is available in CIP PF-00006 and
Facilities Management Division Operating Budget.-
the Public Works
CMR:219:04 Page 1 of 2
POLICY IMPLICATIONS
This recommendation does not represent any change to existing City policies.
ENVIRONMENTAL ASSESSMENT
This project is categorically exempt from California Environmental Quality Act and no
further environmental review is necessary.
.ATTACHMENTS
Attachment A:
Attachment B:
PREPARED BY:
DEPARTMENT HEAD:
Contract C04100292
Certification of Nondiscrimination
Pro ect Manager
GLENN S. ROBERTS
Director of Public Works
CITY MANAGER APPROVAL:
EMILY~FIARRIS ON
Assistant City Manager
CMR:219:04 Page 2 of 2
ATTACHMENT A
FORMAL CONTRACT SECTION 5O0
CONTRACT No. C04100292
(Public Work)
Public Works Department
This Contract, number C04100292 dated ~)~’C, ~I ~ Z 00:3 is entered into by and between the City of Polo
Alto, a chartered city and a municipal corporation of the State of California ("C~ty"), and Kuehne Construction,
Contractor, a California Corporation.
For and in consideration of the covenants, terms, and conditions (’~.he provisions") of this Contract, City and
Contractor ("the parties") agree:
Tenn. This Contract shall commence and be binding on the parties on the Date of Execution of this Contract,
and shall expire on the date of recordation of the Notice of Substantial Completion, or, if no such notice is
required to be filed, on the date that final payment is made hereunder, subject to the earlier termination of this
Contract.
General Scope of Proiect and Work. Contractor shall furnish labor, services, materials and equipment in
connection with the construction of the Project and complete the Work in accordance with the covenants, terms
and conditions of this Contract Io the satisfaction of City, The Project and Work is generally described as
follows:
Title of Project:Baylands Interpretive Center Built-Up Roof Replacement, IFB Number 100292
Bid:$111,800.00
Contract Documents. This Contract shall consist of the documents set forth below, which are on file with the
City Clerk and are.hereby incorporated by reference. For the purposes of construing, interpreting and resolving
inconsistencies between and among the provisions of this Contract, these documents and the provisions
thereof are set forth in the following descending order of precedence.
a.This Contract.
b.invitation For Big.
c.Project Specifications.
d.Drawings.
e.Change Orders.
f.Bid.
g.Supplementary Conditions.
h.General Conditions.
I.Standard Drawings and Specifications (1999).
j.Certificate of Insurance, Performance Bond, Labor & Materia|s (payment) Bond.
k.Other Specifications, or part thereof, not expressly in(~orporated in the Contract Specifications or the
Standard Drawings and Specifications (1999).
I.Any other document not expressly mentioned herein which is issued by City or entered into by the
parties.
Compensation. In consideration of Contractor’s performance of its obligations hereunder, City shall pay to
Contractor the amount set forth in Contractor’s Bid in accordance with the provisions of this Contract and upon
the receipt of written invoices and all necessary supporting doc~Jmentation within the time set forth in the
Contract Specifications and the Standard Drawings and Specifications (1999), or, if no time is stated, within
thirty (30) Days of the date of receipt of Contractor’s invoices.
Insurance. On or before the Date of Execution, Contractor shall obtain and maintain the policies of insurance
coverage described {n the Invitation For Bid on terms and conditions and in amounts as may be required by the
Risk Manager. City shall not be obligated to take out insurance on Contractor’s personal property or the
personal property of any person performing labor or services or supplying materials or equipment under the
Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting
coverage required under this Contract on or before the Date of Execution. The certificates and endorsements
for each insurance policy shall be signed by a person who is authorized by that insurer to bind coverage in its
behalf. Proof of insurance shall be mailed to the Project Manager to the address set forth in Section 15 of this
CITY OF PALO ALTO IFB 100292
rev. 12/00
PAGE 1 OF 7
FORMAL CONTRACT
Contract.
SECTION ,~00
indemnification. Contractor agrees to protect, defend, indemnify and hold City, its Council members, officers,
employees, agents and repre.sentatives harmless from and against any and all claims, demands, liabilities,
losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly or
indirectly, at any time from any iniury to or death of persons or damage to property as a result of the willful acts
or the negligent acts or omissions of Contractor, or which results from Contractor’s noncompliance with any Law
respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises from
Contractor’s failure to do anything required under this Contract or for doing anything which Contractor is
required not to do under this Contract, or which arises from conduct for which any Law may impose stdct liability
on Contractor in the performance of or failure to perform the p~ovisions of this Contract, except as may adse
from the sole willful acts or negligent acts or omissions of City or any of its Council members, officers,
employees, agents or representatives. This indemnification Shall extend to any and all claims, demands, or
liens made or filed by reason of any work !~etforrned by Contractor under this Contract at any time during the
term of this Contract, or arising thereafter.
To the extent Contractor will use hazardous materials in connection with the execution of its obligations under
this Contract, Contractor further expressly agrees to protect, indemnify, hold harmless and defend City, its City
Council members, officers and employees from and against any and all claims, demands, liabilities, losses,
.damages, costs, expenses, liens, penalties; suits, or judgments City may incur, adsing, in whole or in part, in
connection with or as a result of Contractor’s willful acts or negligent acts or Omissions under this Contract,
under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. )-~9601-6975,
as amended); the Resource Conservation and RecoveryAct (4-2 U.S.C. ~6901-6992k, as amended); the Toxic
Substances Control Act (15 U.S.C. ~)2601-2692, as amended); the Carpenter-Presley-Tanner Hazardous
Substance Account Act (Health & Safety Code, ~25300-25395, as amended); the Hazardous Waste Control
Law (Health & Safety Code, )~25100-25250.25, as amended); the Safe Drinking Water and Toxic Enforcement
Act (Health & Safety Code, )~25249.5-25249.13, as amended); the Underground Storage of Hazardous
Substances Act (Health & Safety Code, )~25280-25299.7, as amended); or under any other local, state or
federal law, statute or ordinance, or at common law.
Assumption of Risk. Contractor agrees to voluntarily assume any and all dsk of loss, damage, or injury to the
property of Contractor which may occur in, on, or about the Project site at any time and in any manner,
excepting such lossl injury, or damage as may be caused by the sole willful act or negligent act or omission of
C[ty or any of its Council members, officers, employees, agent~"br representatives.
Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by
City of its dghts under this Contract. A waiver by City of any breach of any par~ or provision of this Contract by
Contractor shall not.operate as a waiver or continuing waiver of any subsequent breach of the same or any
other provision, nor shall any custom or practice which may arise between the par~ies in the administration of
any pad or provision of this Contract be construed to waive or to lessen the right of City to insist upon the
performance of Contractor in stdct compliance with the covenants, terms and conditions of this Contract..
No Exoneration By Inspection: The City has the right, but not the duty, to inspect Contractor’s Work. The right
satisfactory manner in compliance with Contract requirements. The presence of a City inspector does not shift
that obligation to the C~y or relieve Contractor from its obligations tc complete the Work [n a satisfactory
manner in compliance with the Contract requirements.
10.Compliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force
pertaining to the Project and Work and this Contract, with the requirement of any bond orfire underwriters or
other similar body now or hereafter constituted, with any discretionar~ license or permit issued pursuantto any
Law of any public agency or o~cial as well as with any provision of all recorded documents affecting the Project
site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws
pertaining to nondiscrimination in employment and hazardous materials.
Bonds, As a condition precedent to City’s obligation to pay compensation to Contractor, and on or before the
Date of Execution, Contractor shall furnish to the Project Manager the Bonds as required under the Invitation
For Bid.
CITY OF PALO ALTO IFB 100292
rev, 12J01)PAGE 2 OF 7
FORMAL CONTRACT SECTION 500
12.Representat ons and Warranties. in the supply of any materiels and equipment and the rendering of labor and
sen4ces during the course and scope of the Project and Work, Contractor represents and warrants:
Any materiais and equipment which shall be used during the course and scope of the Project and
Work shall be vested in Contractor;
bo Any materials and equipment which shall be used during the course and scope of the Project and
Work shall be merchantable and fit to be used for the particular purpose for which the material_s are
required;
Any labor and services rendered and materials and equipment used or employed du~ing the course
and scope of the Project and Work shall be free of defects in workmanship for a pedod of one (1) year
after the recordation of the Notice of Substantial Completion, or, if no such notice is required to be
flied, on the date that final payment is made hereunder;
Any manufacturer’s warranty obtained by Contractor shall be obtained or shall be deemed obtained by
Contractor for and in behalf of City,
Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request,
whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true
and correct at the time such information is submitted or made available to the City;
Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to
the terms and conditions, of Contractor’s Bid, except as may be permitted by the Invitation For Bid;.
Contractor has the power and authority to enter into this Contract with City, that the individual
executing this Contract is duly authorized to do so by appropriate resolution, and that this Contract
shall be executed, delivered and performed pursuant to the powe# and authority conferred upon the
person or persons authorized to bind Contractor;
Contractor has. not made an at’tempt to exert undue influence with the Purchasing Manager or Project
Manager or any other person who has directly contributed to City’s decision to award the contract to
Contractor;
There are no unresolved claims or disputes between Contractor and City which would materially affect
Contractor’s ability to perform under the Contract;
Contractor has furnished and willfumish true and accurate statements, records, reports, resolutions,
codifications, and other wdtten information as may be request.ed of Contractor by City from time totime dudng the term of this Contract;
Contractor and any person performing labor and services under this Project are duty licensed by the
State of California as required by California Business & Professions Code Section 7028, as amended;
and
13.
14.
Contractor has fully examined and inspected the Projec! site and has full knowledge of the physical
conditions of the Project site.
Assiqnment. This Contract and the performance required hereunder is personal to Contractor, and it shall not
be assigned by Contractor. Any attempted assignment shall be null and void.
Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the ContractTime
or other disputes ar!sing out of the Contract shall be submitted by Contractor to City in writing by certified or
registered mail within ten (10) Days after the claim arose or within such other time as may be permitted or
required by law, and shall be described in sufficient detail to give adequate notice of the substance of the claim
to City.
15.Audits by City. During the term of this Contract and for a period of not less than three (3) years after the
expiration or earlier termination of this Contract, City shall have the right to audit Contractor’s Project-related
CITY OF PALO ALTO IFB 100292
rev. "12/00 PAGE 3 OF 7
FORMAL CONTRACT SECTION 500
and Work-related wdtings and business records, as such terms are defined in California Evidence Code
Sections 250 and ~271, as amended, during the regular business hours of.Contractor, or, if Contractor has no
such hours, during the regular business hours of City,
16.Notices_. All agreements, appointments’ approvals, authorizations, claims, demands, Change Orders, consents,
designations, notices, offers, requests and statements given by either party to the other shall be in writing and
shall be sufficiently given and served upon the otl~er party if (1) personally served, (2) sent by the United States
mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of afacsimile transmission,
if sent to the telephone FAX number set forth below during regular business hours of th6 receiving party and
followed within two. (2) Days by delivery of a hard copy of the material sent by facsimile transmission, in
accordance with (I), (2) or (3) above. Personal service shall include, without limitation, service by delivery and
service by facsimile transmission.
To City:City of Pale Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Pale Alto, CA 94303
Copy to:City of Pale Alto
Public Works Department - Facilities Management Division
3201 East Bayshore Road, Building B
Pale Alto, CA 94303
Attn: Richard Zolezzi, Project Manager
To Contractor:
Kuehne Construction
933 Kifer Road, Suite B
Sunnyvale, CA 94086
Attn: JIM KUEHNE
Appropriation of City Funds. This Contract is subject to the fiscal provisions of ACdcle III, Section 12 of the
Charter of the C~y of Pale Alto. Any charges hereunder for labor, services, materials and equipment may
accrue only after such expenditures have been approved in advance in writing in accordance with applicable
Laws. This Contract shall terminate w~thout penalty (I) atthe end of anyfiscal year in the event that funds are
not appropriated for the following fiscal year, or (it) at any time within a fiscal year in the event that funds are
only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This
Section. 16 shall control in the event of a conflict ~th any other provision of this Contract.
18.Miscellaneous.
be
Bailee Disclaimer. The parties understand and agree th~at City does not purport to be Contracto.r’s
bailee, and City is, therefore, not responsible for any damage to the personal prope~j of Colltractor.
Consent. Whenever in this Contract the approval or consent of a party is required, such approval or
consent shall be in writing and shall be executed by a person having the express authority to grant
such approval or consent.
Controlling Law. The parties agree that this Contract shall be governed and construed by and in
accordance with the Laws of the State of Califomia.
Definitions. The definitions and terms set forth in Section 1 of the Standard Drawings and
Specifications (1992) of this Contract are incorporated herein by reference.
Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to
perform its obligations under this Contra.ct which directly results from an Act of God or an act of a
supedor governmental authority.
CITY OF PALe ALTO IFB 100292
.rev, 12~00.PAGE 4 OF 7
FORMAL CONTRACT SECTION 500
Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the
construction or interpretation of any part of this Contract.
Incorporation of Documents. All documents constituting the Contract documents described in Section
3 hereof and all documents which may, from time to time, be referred to in any duty executed
amendment hereto are by such reference incorporated in this Contract and shall be deemed to be part
of this Contract.
Integration, This Contract and any amendments hereto between the parties constitute the entire
agreement between the parties concerning the Project and Work, and there are no other prior oral or
written agreements between the parties that are not incorporated in this Contract.
Modification of Agreement. This Contract shall not be modified or be binding upon the parties, unless
such modification is agreed to in writing and signed by the parties.
Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or
other stipulation in the Contract shall define or otherwise control, establish, or limit the performance
required or permitted or to be required of or permitted by either party. All provisions, whether
covenants or conditions, shall be d~emed to be both covenants and conditions.
Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or
other writing, which authorizes any director, officer or other employee or partner to aot for or in behalf
of Contractor or which authorizes Contractor to enter into this Contract.
Severability. If a court of competent jurisdiction finds or rules that any provision of this Contract is void.
or unenforceable, the provisions of this Contract not so affected shall remain in fullforce and effect¯
Status of Contractor. In the exercise of rights and obligations under, this Contract, Contractor acts as
an independent contractor and not as an agent or employee of City. Contractorshall not be entitled to
any dghts and benefits accorded or accruing to the City Council members, officers or employees of
City, and Contractor expressly waives any and all claims to such dghts and benefRs.
Successors and Ass.igns. The provisions of this Contract shall inure to the benefit of, and shall apply
to and bind, the successors and assigns of the parties.
Time of the Essence. Time is of the essence of this Contract. and each of its provisions. In the
calculation of time hereunder, the time in which an act is to be performed shall be computed by
excluding the first [bay and including the last. If the time in which an ’act is to be performed falls on a
Saturday, Sunday, or any Day observed as a legal holiday.by City; the time for performance shall be
extended to the following Business Day.
Alternative Dispute Resolution. The parties shall endeavor to resolve any disputes or claims arising
out of or relating to this Contract by mediation, which; unless the parties agree otherwise, shall be
conducted under the auspices of the Judicial Arbitration and Medi~ation Service (JAMS), San Jose,
California. The intent of the parties is that the mediation shall proceed in advance of litigation;
however, if any par~y should commence litigation before the conclusion of mediation, such litigation,
including discovery, shall be stayed pending completion of mediation, and by executing this Conlract
the parties stipulate to mediation in accordance with Santa Clara County
Supedor Court Local Rule 1.15 or Rule 2-3(b) of the ADR Local Rules of the U.S. District Court for the
Northern Distdct ef California, as such rules may be amended from time to time. The parties shall
share the cost of the mediation, including the mediator’s fee, equally. Any written agreement reached
in mediation shall be enforceable pursuant to California Code of Civil Procedure § 664.6, as amended.
Venue. Unless the parties mutually agree otherwise, mediation shall take place in San Jose,
California. in the event that litigation is commenced by any party hereunder, the parties agree that
such action shall be vested exclusively in the state courts of Califomia in the County of Santa Clara or
in the United States District Court for the Northern District of California.
CITY OF PALO ALTO [FB 100292
roy. 12/00 PAGE ,5 OF 7
FORI~IAL CONTRACT’SECTION 500
r.Recovery of Costs, Each Party shall bear its own costs, including attorney’s fees, through the
completion of mediation, tf the c aim or dispute is not resolved through mediation, or if litigation is
necessary to enforce a settlement reached at mediation pursuant to California Code of Civil Procedure
§ 664.6, as amended, then the prevailing party in any subsequent lftigation may recover its reasonable
costs, including attorney’s fees~ incurred subsequent to conclusion of the mad(orion.
Flow-down. Contractor agrees to include provisions of this Contract relating to Alternative Dispute
Resolution, Venue. and Recoveq{ of Costs in any subcontracts or major material purchase
agreements which it enters into in connection with this Contract, and to require it, s subcontractors to
include those provisions in any sub-contracts or major material purchase agreements, such that any
mediation or I}tigation of any claim or d{spute asserted by a subcontractor or major material supplier
will be consolidated with any related claim or dispute between the Contractor and the City. Should the
Contractor fall to do so, such that the City is required to defend an action brought by a subcontractor
or material supplier inconsistent with the Alternative Dispute and Venue provisions of this Contract,
Contractor shall indemnify City for City’s costs of defense, including reasonable attorney’s fees.
IN WITNESS WHEREOF, the parties have by their duly appointed representatives executed this Contra~,ct~’c~e city of
Polo Alto, County of Santa clara, State of CaJifornia on the date first stated above,
ATTEST:
City Clerk Its Mayor /~’"
"
APPROVED AS TO FORM:’ . /-~.
~ Assistant City Attorney
AP
M~
CONTRACTOR:
’" Dir’~tor of Public Works ’
Director of Adrr
gero trac M (Insurance Review)
By:
Name:
Title:
(Compliance wi~:h California Corpora[ions Code ~ 313
is required if the entity on whose behalf this oontract
is signed is a corporation. In the alternative, a
certified corporate resolution attesting to the
signatory authority of the individuals signing in their
respective capacities is acceptable,)
CITY OF PALO ALTO IFB 100292
rev. 12100
PAGE 6 OF 7
FOR~/IAL CONTRACT SECTION 500
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code ) 1189)
STATE OF (~,L/~’,,~.)
COUNTY OF
On ~i#~,,~ / ~ ~ ~ before
nota~ public ~n and fo’r said County, .~......-personally appeared
.$..., F~ ........~ ,,no ......me (or proved
to me on the basis of satisfactory evidence) to be the person(~-Ywb.ose name~) is/ar-e subscribed to the within
instrument and acknowledged to me that hel~y_..executed the same in histhedt-beir authorized
capacity(ie~, and that by his/~ir signature(~--~ uh the instrument the person(s), orthe entity upon behalf of
which the person(,~ a~ted, e...x_ecute~i-~-..... ~instrument.
~~ my hand and official seal.
.,Signature ’
CITY OF PALO ALTO IFB i00292
rev. 12/00
PAGE 7 OF 7
ATTACHMENT B
CERTIFICATION OF NONDISCRIMINATION SECTION 410
PROJECT: Ba¥1ands Interpretive Center Built-Up Roof Replacement
Certification of Nondiscrimination:
As suppliers of goods or services to the City of Palo Alto, the firm and individuals listed below
certify that they do not discriminate in employment with regards to age, race, color, religion, sex,
national origin, ancestry, disability, or sexual preference; that they are in compliance with all
Federal, State, and local directives and executive orders regarding nondiscrimination in
employment.
THE INFORMATION HEREIN IS CERTIFIED CORRECT BY SIGNATURE(S) BELOW.
Firm:
Signature:
Name:
Title:
KUEHNE CON~;TRUCTION
JIM KUEHNE
EXECUTIVE ~.~NAGER
(PRINT OR TYPE NAME)
Signature:
Name:
Title:
(PRINT OR TYPE NAME)
The City of Polo Alto, pursuant to California Corporations Code Section 3!3, requires two
corporate officers to execute contracts.
*The signature of First Officer* must be one of the foflowing: Chairman of the
Board; President; or Vice President.
**The signature of the Second Officer** must be one of the following: Secretary;
Assistant Secretary; Chief Financial Office~ or Assistant Treasurer.
(In the alternative, a certified corporate resolution attesting to the signatory
authority of the individuals signing in their respective capacifJes is acceptable)
CITY OFPALOALTO PAGE 1 OF 1