HomeMy WebLinkAbout2004-06-07 City Council (18)City of Palo Alto
City Manager’s Report
TO:
FROM:
HONORABLE CITY COUNCIL ~
CITY MANAGER DEPARTMENT:PUBLIC WORKS7
DATE:JUNE 7, 2004 CMR:281:04
SUBJECT:APPROVAL OF A BI~GET AMENDMENT ORDINANCE IN THE
AMOUNT OF $57,036 TO ACCEPT AND EXPEND STATE GRANT
FUNDING IN THE AMOUNT OF $45,628 AND FUNDING FROM
LELAND STANFORD JUNIOR UNIVERSITY IN T[~ AMOUNT
OF $11,408; APPROVAL OF AWARD OF CONTRACT TO POWER
ENGINEERING CONTRACTORS IN THE AMOUNT OF $83,405
FOR THE SAND HILL ROAD BRIDGE SEISMIC RETROFIT (PE-
00018)
RECOMMENDATION
Staff recommends that Council:
1)Approve an Agreement with Leland Stanford Junior University in the amount of
$11,408 to fund excess costs for the Sand Hill Road Bridge Seismic Retrofit Project
(Attachment A);
2)Approve a Budget Amendment Ordinance (BAO) in the amount of $57,036 to accept
and expend State grant monies of $45,628 and Leland Stanford Junior University
Excess Cost Agreement Funds of $11,408 (Attachment B) for the Sand Hill Road
Bridge Seismic Retrofit Project, Capital Improvement Program Project PE-00018;
3)Approve and authorize the Mayor to execute the attached contract with the second
low bidder, Power Engineering in the amount of $83,405 for construction of the Sand
Hill Road Bridge seismic retrofit (Attachment C);
4)Authorize the City Manager or his designee to negotiate and execute one or more
change orders to the contract with Power Engineering Contractors for related,
additional but unforeseen work which may develop during the project, the total value
of which shall not exceed $8,340.
CMR:281:04 Page 1 of 4
BACKGROUND
After the 1989 Loma Prieta Earthquake, the State of California Department of
Transportation (Caltrans) established a Seismic Retrofit Program for bridge structures
throughout the state. As a result, Caltrans has prepared plans and specifications and
provided funding for the seismic upgrade of the Sand Hill Road Bridge at San
Francisquito Creek.
DISCUSSION
This project will update the seismic strength of the Sand Hill Road Bridge by adding
reinforced steel and concrete to the underside of the existing bridge. Stanford University,
as part of an agreement with the City of Menlo Park, will be constructing a new bridge
that will be located adjacent to the existing bridge. Construction on Stanford’s new
bridge as well as the City’s seismic retrofit of the existing bridge is anticipated to begin at
approximately the same time. In order to minimize the traffic impact in the area, staff is
working with the Stanford Management Group to coordinate the seismic work with the
construction of the new bridge. The contractor will not be permitted to close any lane
between 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m. At other times, the contractor may be
allowed to close a lane for short periods of time in order to move equipment or materials.
Bid Name
Proposed Length of Project
Number of Bids Mailed to Contractors
Number of Bids Mailed to Builder’s
Exchanges
Total Days to Respond to Bid
Pre-Bid Meeting?
Number of Company Attendees at Pre-Bid
Meeting
Number of Bids Received:
Bid Price Range
Summary. of Bid Process
San Francisquito Creek Bridge Seismic
Retrofit
90 calendar days
29
6
75 calendar days
No
N/A
11
From a low of $69,632 to a high of
$148,736
A notice inviting formal bids for the Sand Hill Road seismic retrofit project was posted at
City Hall on December 18, 2003 and sent to 6 builders’ exchanges and 29 general
contractors. Staff was required by a prior agreement with Caltrans to advertise the
project for construction bids prior to December 31, 2003. Fish and Game requirements
will not allow construction to begin prior to June 15, 2004. As a result the contractors
were given an extended bidding period of 75 calendar days. Bids were received from 11
qualified contractors on March 2, 2004, as listed on the attached bid summary
(Attachment D). Bids ranged from a low $69,632 to a high bid of $148,736.
CMR:281:04 Page 2 of 4
Staff has reviewed all bids submitted and found the bid of $69,632 from Conley
Construction to be non-responsive; therefore Conley’s bid must be rejected. Conley
Construction failed to meet the minimum 3 percent Disadvantaged Business Enterprise
(DBE) participation goal despite the long bid period of 75 days and was unable to
complete the "Good Faith Efforts" form explaining why it was unable to do so. Staff
therefore recommends that the next lowest bid of $83,405 submitted by Power
Engineering Contractors be accepted and that Power Engineering Contractors be declared
the lowest responsible bidder. The bid is 15 percent above the engineer’s estimate of
$72,640. The change order amount of $8,340 (which equals 10 percent of the total
contract) is requested to resolve tmforeseen problems and!or conflicts that may arise
during the construction period.
Staff checked references supplied by Power Engineering Contractors for previous work
performed and found no significant complaints. Staff also checked with the Contractor’s
State License Board and found it has an active license on file.
RESOURCE IMPACT
The attached BAO (Attachment B) requests an increase in revenue and expenditures of
$57,036 for CIP Project PE-00018. All costs for this project are eligible for
reimbursement. No future year General Fund ongoing costs are anticipated as a result of
this BAO. Staff will provide construction oversight for the project so there will be no
reimbursements to the State for administration costs.
Caltrans had committed funding in the amount of $85,494 for the project (CMR:286:03).
To date $85,494 has been budgeted in CI~ Project PE-00018:$60,000 in FY 1999-2000,
$23,000 in FY 2001-2002 and an additional $2,494 in FY 2002-2003. Some of these
monies have already been used for the environmental analysis, permits from Fish and
Game, and the Santa Clara Valley Water District; and encumbered for upcoming
construction administration services from the engineering design fnnn, Mark Thomas
Company.
The remaining funds were not sufficient to award the construction contract and staff
requested additional funding from Caltrans to cover the shortfall. Due to the State
budget crisis, Caltrans provided all but $11,408 of the required funding, which it is
requiring as the local funding match. Stanford has agreed to pay the local funding
match. With the City leading the retrofit effort for the existing bridge, paid primarily with
State and Federal funds, Stanford will save the cost of having to fully retrofit the bridge
as a development condition. Stanford’s contribution of $11,408 (Attachment A) will
provide the remaining funding to award the contract to Power Engineering.
CMR:281:04 Page 3 of 4
Funding Sumarv:
Previous Funding Obligation
Engineering
Construction
Construction Admin
Subtotal Previous Funding Obligation
New Funding Obligation
Engineering
Construction
Construction Admin
Subtotal New Funding Obligation
Total Reimbursed by Caltrans
Local Match (Stanford)
Project Total:
$ 9,744
$ 64,750
$11,000
$ 85,494
$ 8,800
$ 22,428
$14.400
$ 45,628
$131,122
$ 11,408
$142,530
TIMELINE
Work on this project will commence after June 30, 2004 and should be completed before
mid-October 2004.
ENVIRONMENTAL REVIEW
The City’s Director of Planning and Community Environment
Negative Declaration for the project on April 17, 2000.
certified a Mitigated
ATTACHMENTS
Attachment A:Agreement to Fund Excess Costs with Stanford University
Attachment B:Budget Amendment Ordinance
Attachment C:Contract
Attachment D:Bid Summary
PREPARED BY:
DEPARTMENT HEAD:
CITY MANAGER APPROVAL:
KAREN BENGARD
Senior Engineer
GLENN S. ROBERTS
Director of Public Works
Assistant City Manager
CMR:281:04 Page 4 of 4
Attachment A
SAND HILL ROAD BRIDGE SEISMIC RETROFIT PROJECT AGREEMENT
TO FUND EXCESS COSTS BETWEEN
LELAND STANFORD JUNIOR UNIVERSITY
AND THE CITY OF PALO ALTO
THIS COST SHARING AGREEMENT (~Agreement")is made and
entered into and effective this day of
, 2004, by and between The Board of Trustees
of the Leland Stanford Junior University (~Stanford"), whose
mailing address is 1201 Welch Road, Stanford, CA 94305 and the
City of Palo Alto ("City") whose mailing address is 250 Hamilton
Avenue, Palo Alto, CA 94303.
RECITALS
A. City has undertaken a project to seismically retrofit
the Sand Hill Road Bridge (~Bridge") at San Francisquito Creek
("Project") on the border of the City of Palo Alto, the City of
Menlo Park, and Stanford University. The City has solicited
bids for construction of the Project. The apparent low bidder
is Power Engineering Contractors, with a bid of $83,405.25.
B. The City has received grant funding from the California
Department of Transportation ("CalTrans") Seismic Retrofit
Program that will fund all but $11,408.00 of the City’s Project
budget.
C. Stanford is interested in and will benefit from the
Project, as Sand Hill Road serves the Stanford Campus and its
residents. Stanford also plans to construct a new bridge
adjacent to the existing Bridge in order to add two more lanes
of traffic along Sand Hill Road in this congested area.
Stanford has reviewed the plans and specifications for the
Project.
D. Stanford, in recognition of the importance of and need
for the Project, is wi!ling to provide additional funding to the
City for Project construction costs that exceed the City’s
Budget on the terms and conditions set forth in this Agreement.
040413 sm 0100228 1
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, Stanford agrees to provide
additional funding to the City for Project construction costs in
excess of the Budget, subject to the fol!owing terms and
provisions:
i. City Project Construction. City shall endeavor to complete
Project construction by October 15, 2004. City agrees to fund
the Project including construction costs in an amount not to
exceed One Hundred Thirty One Thousand One Hundred Twenty Two
Dollars ($131,122.00) (~Budget").
2.Stanford Funding Obligation.
A. As Bid Project Cost. Stanford acknowledges and
understands that the City is required to solicit bids for
Project construction and to award the construction contract
to the lowest responsive and responsible bidder. The
amount of the winning bid, plus a construction contingency
equal to ten percent (10%) of the bid amount, causes the
total project cost to exceed the City’s Project Budget.
Stanford agrees to fund the excess project cost in an
amount not to exceed Eleven Thousand Four Hundred Eight
Dollars ($11,408.00) (~Excess Cost Funds"). The $11,408.00
is inclusive of contingency funding needs. The project
budget plus the Excess Cost Funds contributed by Stanford
result in a total estimated project cost of One Hundred
Forty Two Thousand Five Hundred Thirty Dollars
($142,530.00) (hereinafter the "As Bid Project Cost").
B. Project Changes. If a change or changes in Project
design or construction materials, equipment or methods are
required for any reason, including changes due to
unforeseen design or site conditions, and the estimated
cost of such change or changes wil! exceed the As Bid
Project Cost, City shall provide Stanford a preliminary
written notice describing the need for the Project change
and an estimate of the cost of the change. Any change
proposed by City shall be required to accomplish the
Project within the size, scale and quality originally
contemplated for the Project to be eligible for funding
from Stanford (~Eligib!e Change(s)"). Stanford shall have
two (2) working days from receipt of the City’s notice to
provide written comments to City regarding the scope or
cost of the proposed Eligible Change(s). City shall take
Stanford’s comments on the proposed Eligible Change(s) into
consideration in preparing any change order or otherwise
040413 sm 0100228 2
authorizing the Eligible Change(s). However, the City
shall have the sole discretion to approve a change order
for or to otherwise authorize an Eligible Change. Stanford
shall be responsible for funding the amount by which the
costs of the Eligible Change(s) exceed the As Bid Project
Cost.
This section shall not apply to City expenditure of the ten
percent (10%) contingency included in the As Bid Project
Cost. City shal! have no obligation to consult with
Stanford with respect to expenditure of such contingency
funds.
3.Payment.
A. Excess Cost Funds. Stanford shall pay City the Excess
Cost Funds in the amount of $11,408.00 within 30 days of
receipt of an invoice for such amount from City.
B. Project Changes. Following the City’s preliminary
notice to Stanford of an Eligible Change and the receipt of
any written comments from Stanford, City shall provide
Stanford a final written notice of the amount by which the
costs of the Eligible Change(s) exceed the As Bid Project
Cost. Stanford shall pay City an amount equal to the
amount by which the costs of the Eligible Change(s) exceed
the As Bid Project Cost within ten (i0) working days of
receipt of the City’s final written notice.
C. Payment. Payments shall be mailed to: City of Palo
Alto, Public Works/Engineering, attention Karen Bengard,
250 Hamilton Avenue, Palo Alto, CA 94301.
4. Accounting/Refunds. City shall deposit any payments made
by Stanford pursuant to this Agreement into an account to be
used solely for the Project. Within 45 days after Project
completion as evidenced by recording of a notice of completion,
City shall provide Stanford a written account identifying the
use of the funds paid by Stanford for the Project pursuant to
section 2.A and/or 2.B above. Within 60 days after Project
completion, City shall refund any unexpended and unencumbered
monies deposited by Stanford for the Project.
5. Expiration. This Agreement shall expire upon the
completion and acceptance of the construction contract for the
Project, or on March i, 2005, whichever is earlier in time.
040413 sm 0100228 3
6. Assignment. Stanford shall not assign or transfer any
interest in this Agreement without the prior written consent of
CITY.
7. Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing
and may be delivered by hand, by facsimile transmission with
verification of receipt, or by United States mail, postage
prepaid and return receipt requested,addressed to the
respective parties as follows:
City Clerk’s Office
City of Palo Alto
250 Hamilton Avenue, 7th Floor
Pa!o Alto, CA 94303
Jim Inglis
Manager, Design & Construction
Leland Stanford Junior University
1201 Welch Road
Stanford, CA 94305
or to such other address as any party may designate by notice in
accordance with this Section.
A copy of any notice of a legal nature, including, but not
limited to, any claims against CITY, its officers or employees
shall also be served in the manner specified above to the
following address:
City Attorney
250 Hamilton Avenue, 8th Floor
Palo Alto, CA 94301
Notice shall be deemed effective on the date delivered or, if
appropriate, on the date delivery is refused.
8. Attorneys Fees. In the event either party breaches any
of the terms, covenants or provisions .of this Agreement, and the
other party commences litigation to enforce any provisions of
this Agreement, the cost of attorney’s fees and the attendant
expenses will be payable to the prevailing party by the non-
prevailing party upon demand.
9. Successors and Assigns. The terms of this Agreement shall
be binding and inure to the benefits of the parties hereto and
their successors and assigns.
040413 sm 0100228 4
i0. Governing Law. CITY and Stanford agree that the law
governing this AGREEMENT shall be that of the State of
California.
ii. Venue. In the event that suit shall be brought by either
party hereunder, the parties agree that trial of such action
shall be exclusively vested in a state court in the County of
Santa Clara or, where appropriate, in the United States District
Court for the Northern District of California, San Jose,
California.
12. Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only. They do not
constitute a part of this Agreement and shall not be used in its
construction.
13. Waiver. The waiver by any party to this Agreement of a
breach of any provision of this Agreement shall not be deemed a
continuing waiver or a waiver of any subsequent breach of that
or any other provision of this Agreement.
14. Integration. Any and all exhibits that are referred to in
this Agreement are incorporated herein by reference and are
deemed a part of this Agreement. This Agreement, including all
Exhibits attached hereto, represents the entire understanding of
the parties as to those matters contained herein. No prior oral
or written understanding shall be of any force or effect with
respect to those matters covered hereunder. This Agreement may
only be amended by formal written Agreement executed by both
parties.
15. Severability. If any term, covenant, condition or
provision of this Agreement, or the application thereof to any
person or circumstance, shall to any extent be held by a court
of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, covenants, conditions or provisions
of this Agreement, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby.
//
//
//
//
040413 sm 0100228 5
16. Director’s Authority. Where this Agreement refers to CITY
and no officer of the CITY is named, the Director of Public
Works shall have the authority to act on CITY’s behalf.
IN WITNESS WHEREOF, the parties have caused these presents
to be executed by their proper officials thereunto duly
authorized as of the dates below indicated.
CITY OF PALO ALTO BOARD OF TRUSTEES OF THE LELAND
STANFORD JUNIOR UNIVERSITY
BY:BY:
TITLE:
Inglis
TITLE:Manager, Design & Construction
DATE:
WITNESS:
040413 sm 0100228
CERTIFICATE OF ACKIqOWLEDGEMENT
(Civil Code ~ 1189)
STATE OF CALIFORNIA
COUNTY OF SAN M_ATEO
On May 17, 2004 , before me, Diana K. Takiquchi , a
Notary Public in and for said County and State, personally appeared
Jim Inglis , personally known to me or provod to me on tho
basis of sati~f ..... ~ evidence to be the person~s-~ whose name~-s-~
isCe~-e subscribed to the within instrument and acknowledged to me
that hel/shc/~,,..... ~ executed the same in his/her/~, ~.~ authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person~eJ-, or the entity upon behalf of which the
person£-sJ- acted, executed the instrument.
WITNESS my hand and official seal.
CommLssion # 1368124 ¯
Notary Public, Callfom~ ~
~n Mat~ C~n~ ~
Signature of Notar! Public
Attachment B
ORDINANCE NO.
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO
AMENDING THE BUDGET FOR THE FISCAL YEAR 2003-04 TO
ACCEPT AND EXPEND $57,036 FROM A STATE GRANT AND THE
LELAND STANFORD JUNIOR EXCESS COST AGREEMENT FUNDS INTO
CAPITAL IMPROVEMENT PROGRAM (CIP) PROJECT PE-00018, SAND
HILL ROAD BRIDGE SEISMIC RETROFIT
SECTION i. The City Council of the City of Palo Alto does
hereby ordain 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 16, 2003
did adopt a budget for fiscal year 2003-04; and
B. After the 1989 Loma Prieta Earthquake, the State of
California Department of Transportation (Caltrans) established a
Seismic Retrofit Program for bridge structures throughout the
state; and
C. As a result, Caltrans has prepared plans and
specifications and provided grant funding for the seismic upgrade
of the Sand Hill Road Bridge at San Francisquito Creek; and
D. This project will update the seismic strength of the Sand
Hill Road Bridge by adding reinforced steel and concrete to the
underside of the existing bridge; and
E. Stanford University will benefit from the seismic upgrade
of the Sand Hill Road Bridge and has agreed to continue funding to
the project; and
F. City Council authorization is needed to accept and expend
the grant receipts and receipt of Stanford monies as hereinafter
set forth.
SECTION 2. Grant revenue in CIP PE-00018 is increased by the
sum of Forty-Five Thousand Six Hundred Twenty-Eight Dollars
($45,628) for receipt of grant funds from the State of California.
SECTION 3. Revenue in CIP PE-00018 is increased by the sum of
Eleven Thousand Four Hundred Eight Dollars ($11,408) for receipt
of funds from Leland Stanford Junior University.
SECTION 4. The sum of $57,036 is hereby appropriated to CIP
PE-00018,Sand Hill Road Bridge Seismic Retrofit.
SECTION 5. This transaction will not impact the General Fund
Budget Stabilization Reserve.
SECTION 6. 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 7. The City’s Director of Planning and Community
Environment issued a Mitigated Negative Declaration for the
project on April 17, 2000.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Mayor
APPROVED:
City Attorney City Manager
Director of Public Works
Director of Administrative
Services
Attachment C
CONTRACT No. C04135763
(Public Work)
Public Works Department
This Contract, number C04135763 dated is entered into by and between the City of Palo Alto, a chartered
city and a municipal corporation of the State of California ("C~b/’), and Power Engineering Contractors, Inc.
("Contractor").
For and in consideration of the covenants, terms, and conditions (the provisions) of this Contract, City and Contractor
(’the parties") agree:
Term. This Contract shall commence and be binding on the par’des 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 Project 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 cond~ons of this Contract to the satisfaction of C~. The Project and Work is generally described as
follows:
T~e of Project:San Francisquito Creek Bridge Seismic Retrofit, Invitation for Bids (IFB) Number
135763.
Bid:
City reference: CIP PE-00018 Sand Hill Road Bridge Seismic Retrofit
$ 83,405.00
Contract Documents. This Contract shall consist of the documents set forth below, which are on file with the
C~ 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.
Invitation For Bid.
Project Specifications.
Drawings.
Change Orders.
Bid.
Supplementary Conditions.
General Conditions.
Standard Drawings and Specifications (1999).
Certificate of Insurance, Performance Bond, Labor & Materials (Payment) Bond.
Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications or the
Standard Drawings and Specifications (1999).
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 ContractoCs Bid in accordance with the provisions of this Contract and upon
the receipt of written invoices and all necessary supporting documentation within the time set forth in the
Contract Specifications and the 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 in the Invitation For Bid on terms and cond~ons 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
rev. 12/00 PAGE 1 OF 7
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
Contract.
Indemnification. Contractor agrees to protect, defend, indemnify and hold City, its Council members, officers,
employees, agents and representatives harmless from and against any and all claims, demands, liabil~es,
losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, direly or
indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful acts
or the negligent acts or omissions of Contractor, or which results from Contractor’s noncompliance w~h any
Law respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises
from Contractor’s failure to do anything required under this Contract or for doing anything which Contractor is
required not to do under this Contract, or which arises from conduct for which any Law may impose strict
liability on Contractor in the performance of or failure to perform the provisions of this Contract, except as may
arise from the sole willful acts or negligent acts or omissions of City or any of its Council members, officers,
employees, agents or representatives. This indemnification shall extend to any and all claims, demands, or
liens made or filed by reason of any work performed by Contractor under this Contract at any time during the
term of this Contract, or arising thereafter.
To the extent Contractor wilt 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, su~, or judgments City may incur, arising, in whole or in part, in
connection with or as a result of Contractor’s willful acts or negligent acts or omissions under this Contract,
under the Comprehensive Environmental Response, Compensation and Liabilk’y Act (42 U.S.C. 9601-6975, as
amended); the Resource Conservation and Recovery Act (42 U.S.C. 6901-6992k, as amended); the Toxic
Substances Control Act (15 U.S.C. 2601-2692, as amended); the Carpenter-Presley-Tanner Hazardous
Substance Account Act (Health & Safety Code, 25300-25395, as amended); the Hazardous Waste Control
Law (Health & Safety Code, 25100-25250.25, as amended); the Safe Drinking Water and Toxic Enforcement
Act (Health & Safety Code, 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.
10.
Assumption of Risk. Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the
property of Contractor which may occur in, on, or about the Project site at anytime and in any manner,
excepting such loss, injury, or damage as may be caused by the sole willful act or negligent act or omission of
City or any of ~ Council members, officers, employees, agents or representatives.
Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by
City of its fights under this Contract. A waiver by City of any breach of any part or provision of this Contract by
Contractor shall not operate as a waiver or continuing waiver of any subsequent breach of the same or any
other provision, nor shall any custom or practice which may arise between the parlJes in the administration of
any part or provision of this Contract be construed to waive or to lessen the fight of City to insist upon the
performance of Contractor in strict compliance with the covenants, terms and conditions of this Contract.
No Exoneration By Inspection: The City has the right, but not the duty, to inspect Contractor’s Work. The fight
of inspection is solely for the benefit of C~. Contractor has the obligation to complete the Work in a
satisfactory manner in compliance with Contract requirements. The presence of a City inspector does not shift
that obligation to the City or relieve Contractor from its obligations to complete the Work in a satisfactory
manner in compliance with the Contract requirements.
Compliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force
pertaining to the Project and Work and this Contract, with the requirement of any bond or fire underwriters or
other similar body now or hereafter constituted, with any discretionary license or permit issued pursuant to any
Law of any public agency or official as well as with any provision of all recorded documents affecting the Project
site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws
pertaining to nondiscrimination in employment and hazardous materials.
11.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.
PAGE 2 OF 7rev. 12/00
12.
13.
Representations and Warranties. In the supply of any materials and equipment and the rendering .of labor and
services during the course and scope of the Project and Work, Contractor represents and warrants:
Any materials and equipment which shall be used during the course and scope of the Project and
Work shall be vested in Contractor;
Any materials and equipment which shall be used during the course and scope of the Project and
Work shall be merchantable and fit to be used for the particular purpose for which the materials are
required;
Any labor and services rendered and materials and equipment used or employed during the course
and scope of the Project and Work shall be free of defects in workmanship for a period of one (1)
year after the recordation of the Notice of Substantial Completion, or, if no such notice is required to
be filed, on the date that final payment is made hereunder;
Any manufacturer’s warranty obtained by Contractor shall be obtained or shall be deemed obtained by
Contractor for and in behalf of City.
Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request,
whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true
and correct at the time such information is submitted or made available to the City;
Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to
the terms and cond~ons of ContractoCs 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 power and authority conferred upon the
person or persons authorized to bind Contractor;
Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project
Manager or any other person who has directly contributed to C~’~s decision to award the contract to
Contractor;
There are no unresolved claims or disputes between Contractor and City which would materially affect
Contractor’s ability to perform under the Contract;
Contractor has furnished and will furnish true and accurate statements, records, reports, resolutions,
certifications, and other written information as may be requested of Contractor by C~ from time to
time during the term of this Contract;
Contractor and any person performing labor and services under this Project are duly licensed by the
State of California as required by California Business & Professions Code Section 7028, as amended;
and
Contractor has fully examined and inspected the Project site and has full knowledge of the physical
conditions of the Project site.
Assiqnment. This Contract and the performance required hereunder is personal to Contractor, and it shall not
be assigned by Contractor. Any attempted assignment shall be null and void.
Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the Contract Time
or other disputes arising out of the Contract shall be submitted by Contractor to City in writing by certified or
registered mail within ten (10) Days after the claim arose or within such other time as may be permitted or
required by law, and shall be described in sufficient detail to give adequate notice of the substance of the claim
to City.
PAGE 3 OF 7rev. 12/oo
15.
16.
17.
18.
Audits by City. During the term of this Contract and for a period of not less than three (3) years after the
expiration or earlier termination of this Contract, City shall have the right to audit Contractor’s Project-related
and Work-related wrilJngs and business records, as such terms are defir~ed in California Evidence Code
Sections 250 and 1271, as amended, during the regular business hours of Contractor, or, if Contractor has no
such hours, during the regular business hours of City.
Notices. All agreements, appointments, approvals, authorizations, claims, demands, Change Orders,
consents, designations, notices, offers, requests and statements given by either party to the other shall be in
writing and shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the
United States mail, postage prepaid, (3) sent by private express delivery service or (4) in the case of a facsimile
trans.m, ission, if sent to the telephone FAX number set forth below during regular business hours of the
receiving party and followed within two (2) Days by delivery of a hard copy of the material sent by facsimile
transmission, in accordance with (1), (2) or (3) above. Personal service shall include, without limitation, service
by delivery and service by facsimile transmission.
To City:
Copy to:
To Contractor:
City of Palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
City of Palo Alto
Public Works Department
250 Hamilton Avenue
Palo Alto, CA 94301
Attn: Karen Bengard, Project Manager
Power Engineering Contractors, Inc.
1501 Viking Street, Suite 200
Alameda, CA 94501
Attn: David F. Mik, Secretary/Vice President
Appropriation of City Funds. This Contract is subject to the fiscal provisions of Article III, Section 12 of the
Charter of the City of Palo Alto. Any charges hereunder for labor, services, materials and equipment may
accrue only after such expenditures have been approved in "advance in w~ng in accordance with applicable
Laws. This Contract shall terminate without penalty (I) at the end of any fiscal year in the event that funds are
not appropriated for the following fiscal year, or (ii) at any time within a fiscal year in the event that funds are
only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This
Section 16 shall control in the event of a conflict with any other provision of this Contract.
ao
Miscellaneous.
Bailee Disclaimer. The parties understand and agree that City does not purport to be Contractor’s
bailee, and City is, therefore, not responsible for any damage to the personal property of Contractor.
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 California.
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 Contract which directly results from an Act of God or an act of a
PAGE 4 OF 7rev. 12./oo
superior governmental authority.
Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the
construction or interpretation of any part of this Contract.
Incorporation of Documents. All documents constituting the Contract documents described in
Section 3 hereof and all documents which may, from time to time, be referred to in any duly executed
amendment hereto are by such reference incorporated in this Contract and shall be deemed to be
part of this Contract.
Integration. This Contract and any amendments hereto between the par’des cons~tute the entire
agreement between the pa~es 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, cond~on, clause, qualification, restriction, reservation, term or
other stipulation in the Contract shall define or othen,vise control, establish, or limit the performance
required or permitted or to be required of or permitted by either party. All provisions, whether
covenants or cond~ons, shall be deemed to be both covenants and conditions.
Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or
other w~ng, which authorizes any director, officer or other employee or partner to act for or in behalf
of Contractor or which authorizes Contractor to enter into this Contract.
Severabil~. If a court of competent jurisdiction finds or rules that any provision of this Contract is void
or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect.
Status of Contractor. In the exercise of rights and obligations under this Contract, Contractor acts as
an independent contractor and not as an agent or employee of C~. Contractor shall not be ended
to any rights and benefits accorded or accruing to the City Council members, officers or employees of
City, and Contractor expressly waives any and all claims to such rights and benefits.
Successors and Assigns. The provisions of this Contract shall inure to the benefit of, and shall apply
to and bind, the successors and assigns of the parties.
Time of the Essence. Time is of the essence of this Contract and each of its provisions. In the
calculation of time hereunder, the time in which an act is to be performed shall be computed by
excluding the first Day and including the last. If the time in which an act is to be performed falls on a
Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be
extended to the following Business Day.
Alternate Dispute Resolution. The parties shall endeavor to resolve any disputes or claims arising
out of or relating to this Contract by mediation, which, unless the parties agree otherwise, shall be
conducted under the auspices of the Judicial Arbitration and Mediation Service (JAMS), San Jose,
California. The intent of the parties is that the mediation shall proceed in advance of litigation;
however, if any party should commence litigation before the conclusion of mediation, such litigation,
including discovery, shall be stayed pending completion of mediation, and by executing this Contract
the parties stipulate to mediation in accordance with Santa Clara County
Superior Court-Local Rule 1.15 or Rule 2-3(b) of the ADR Local Rules of the U.S. District Court for
the Northern District of California, as such rules may be amended from time to time. The parties shall
share the cost of the mediation, including the mediator’s fee, equally. Any written agreement reached
in mediation shall be enforceable pursuant to California Code of Civil Procedure § 664.6, as
amended.
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 paCdes agree that
such action shall be vested exclusively in the state courts of California in the County of Santa Clara or
in the United States District Court for the Northern District of California.
PAGE 5 OF 7rev. 12/oo
Recovery of Costs. Each Party shall bear its own costs, including attorney’s fees, through the
completion of mediation. If the claim or dispute is not resolved through mediation, or if li~gation is
necessary to enforce a settlement reached at mediation pursuant to California Code of Civil Procedure
§ 664.6, as amended, then the prevailing party in any subsequent litigation may recover its reasonable
costs, including attorney’s fees, incurred subsequent to conclusion of the mediation.
Flow-down. Contractor agrees to include provisions of this Contract relating to Alternative Dispute
Resolution, Venue. and Recovery of Costs in any subcontracts or major material purchase
agreements which it enters into in connection with this Contract, and to require its subcontractors to
include those provisions in any sub-contracts or major material purchase agreements, such that any
mediation or litigation of any claim or dispute asserted by a subcontractor or major material supplier
will be consolidated with any related claim or dispute between the Contractor and the City. Should the
Contractor fail to do so, such that the City is required to defend an action brought by a subcontractor
or material supplier inconsistent with the Alternative Dispute and Venue provisions of this Contract,
Contractor shall indemnify City for City’s costs of defense, including reasonable attorney’s fees.
IN WITNESS WHEREOF, the parties have by their duly appointed representatives executed this Contract in the city of
Palo Alto, County of Santa Clara, State of California on the date first stated above.
ATTEST:CITY OF PALO ALTO
By:City Clerk Its Mayor
APPROVED AS TO FORM:
Senior Assistant C~ Attorney
APPROVED:CONTRACTOR:
Assistant City Manager
Director of Public Works
By:.
Name
Title:
Director of Administrative Services
By:
Contract Manager (Insurance Review)
Title
(Compliance with California Corporations Code 313 is required if
the entity on whose behalf this contract is signed is a
corporation. In the alternative, a certified corporate resolution
attesting to the signatory authority of the individuals signing in
their respective capacities is acceptable. )
PAGE 6 OF 7rev. 12/00
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code 1189)
STATE OF )
COUNTY OF )
On , before me,
notary public in and for said County, personally appeared ,a
, personally known to me (or
proved to me on the basis of sa~sfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
rev. 12/00 PAGE 7 OF 7
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