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HomeMy WebLinkAbout2003-12-15 City Council (2)TO: City of Palo Alto City Manager’s Report HONORABLE CITY COUNCIL 2 FROM:CITY MANAGER DEPARTMENT: COMMUNITY SERVICES DATE: SUBJECT: DECEMBER 15, 2003 CMR:541:03 APPROVAL OF A BUDGET AMENDMENT ORDINANCE TO COMMIT FUNDS FOR REIMBURSABLE GRANT FUNDING IN THE AMOUNT OF $299,536; APPROVAL OF A CONTRACT WITH A & A CONSTRUCTION IN THE AMOUNT OF $522,000 FOR THE CONSTRUCTION OF THE ARASTRADERO PRESERVE GATEWAY FACILITY, SUBJECT TO SIMULTANEOUS APPROVAL OF A DEDUCT CHANGE ORDER TO THE CONSTRUCTION CONTRACT IN THE AMOUNT OF $74,000, FOR A TOTAL CONTRACT AMOUNT OF $448,000 REPORT IN BRIEF Since Council initiated consideration of a public facility for the Arastradero Preserve in 1997, staff has worked with a citizen design committee, park users and architects to develop the design of a modest workplace, education classroom and restroom facility for the entrance of the Preserve. This report seeks Council’s approval for the construction of the facility with A & A Construction, Inc., and seeks approval of a Budget Amendment Ordinance that will include revenue and expenditures for an existing Capital Improvement Project in order to reflect certain grant funds that will finance the project. Six line items of the project have been removed from the original scope of work and contract in order to make the project economically feasible with existing funds. If the full amount of requested contingency funds are not needed for completion of this facility, then these deducted change orders will be added back into the project. CMR:541:03 Page 1 of 7 RECOMMENDATION Staff recommends that Council: 1. Approve a Budget Amendment Ordinance (BAO) in the amount of $299,536 for revenue and expenditures for the Arastradero Preserve Gateway Facility Project, to be reimbursed upon receipt of grant funding by December 2004 (Attachment A); 2.Approve and authorize the Mayor to execute the attached contract with A & A Construction, Inc. in the amount of $522,000 for construction of the Arastradero Preserve Gateway Facility (Attachment B), subject to execution of a simultaneous contract change order to deduct certain contract items totaling $74,000, for a total contract amount of $448,000 (Attachment C); 3.Authorize the City Manager or his designee to negotiate and execute one or more change orders to the contract with A & A Construction, Inc. for related, additional but unforeseen work which may develop during the construction of the project, the total value of which shall not exceed $67,200. DISCUSSION Project Description The work to be performed under the contract is for the construction of an approximately 1,200 square-foot visitor center and work space at the Arastradero Preserve. The proposed facility consists of a cluster of three modestly-scaled, single-story structures, that would serve visitors, park rangers, and open space stewards at the Preserve. The Gateway Facility will provide a meeting and informational place for visitors and students and a work area for the park ranger and steward volunteers. The facility also will provide public restrooms, educational displays and storage facilities for trail and habitat restoration tools used by volunteers in the Preserve. The building design incorporates a number of progressive sustainable building techniques including hay bale insulated walls, earthen stucco exterior finishes, use of recycled building materials, solar water heating, passive solar room heating and photo-voltaic power generation. The gateway facility will be located on a 77-acre parcel on the east side of Arastradero Road within the Preserve adjacent to an existing unpaved public parking lot. The conceptual design of the facility and necessary building variances were approved by Council on April 24, 2000. At that time, staff was directed to prepared finalized construction plans and specifications for the facility. Summary of Bid Process IBid Name/Number Proposed Lengh of Project Number of Bids Mailed to Contractors Number of Bids Mailed to Builder’s Exchanges Arastradero Preserve Gateway Facility 12 months 13 4 RFB:lS0735 CMR:541:03 Page 2 of 7 Total Days to Respond to Bid Pre-Bid Meeting? Number of Company Attendees at Pre-Bid Meeting Number of Bids Received: Bid Price Range *Bid summary provided in Attachment C. 49 Yes 6 1 $577,500 (Base Bid, plus Add Alternates 1 and 2) Staff extensively advertised this project through builder exchanges, and notices to local contractors and green building advocates. Although six contracting firms attended the pre-bid meeting, only one bid was received because of the unique design of the building and unfamiliar building techniques, such as hay insulated walls, earthen stucco and the reuse of salvaged building materials. Staff has reviewed the bid submitted and recommends that the bid of $ 504,000 submitted by A & A Construction, Inc. for the base bid and Add Alternate 1 be accepted and that A & A Construction, Inc. be declared the -lowest responsible bidder. The bid is 5 percent above staff’s estimate of $479,000 for the base bid and Add Alternate 1. In reviewing the bid line items with the contractor, the slightly higher than anticipated cost is due to the extra labor that will be involved with this project in incorporating recycled building components and lumber. The preparation of these materials in milling the lumber to consistent size and repairing blemishes is more time consuming than using new materials. 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 significant complaints. Reject Add Alternate 2 The amount available for construction and a contingency reserve is $522,600. Since the base bid and Add Alternate 1 for the construction of restrooms, together with an appropriate contingency amount, is already more that $522,600, staff recommends rejecting Add Alternate 2, which would have built parking lot amenities. Staff will continue to solicit grant funds for these improvements and will issue a request for bids for Add Alternate 2 when funds are available. These improvements are not deemed essential to the effective use of the gateway facility. Existing bike racks, information kiosks and resting benches near the parking lot will continue to be used by the public. Deduct Change Order (Attachment B) Since the amount of the base bid and Add Alternate 1 was about $25,000 over the staff’s estimate for construction, staff reevaluated the project budget to determine the items that could be eliminated without substantially altering the project while still keeping the project within budget. There is an approximate difference of $74,000 between the amount available for construction and A & A Construction’s bid (Base bid and Add Alternate 1). CMR:541:03 Page 3 of 7 Staff identified a list of contract items that could be deducted from the project that would have a very minimal impact on the design, use or function of the building . The items staff have determined that can reasonably be incorporated into a deduct change order for omitting and/or modifying items in the construction contract including the following: ¯ Remove decomposed granite pathways, Item 1 ($15,000). Native soil paths similar to other Preserve trails will be used instead. ¯ Omit casework, counters (desktops) and finish carpentry in the meeting room and work space, Item 2 ($30,000). Furniture from other City offices will be used until custom cabinet can be furnished in the future. Finish carpentry will be furnished by volunteer tradesmen. ¯ Omit the wood stove purchase and installation for the meeting room, Item 3 ($5,000) Since the building utilizes passive solar heating, this will have an impact only during a small portion of the year. ¯ Omit the wood bench on the exterior of the building and finish carpentry in the restrooms, Item 4 ($ 5,000) This non-essential feature will be added when funds are available in the future. ¯ Omit the horse water trough near the restroom, Item 5 ($ 1,000) This non-essential feature will be added when funds are available in the future. ¯ Provide power to the construction site with generators rather than using the photo- voltaic system to generate electricity, Item 6 ($18,000). Using conventional generators will be significantly less expensive than having to assemble the photo-voltaic system in the field for electricity during twelve months of construction. Use of a photovoltaic system was proposed by the contractor and not required by the bid specifications. Staff consulted with the California State Office of Grants and Local Services to determine if a deduct change order entered into at the time of contract award would jeopardize State funding for the project. The City’s grant liaison stated that the deduct change order process followed by the City does not jeopardize any State funding. The design of the building is not significantly altered by these changes and therefore will require no additional design review by the Architectural Review Board or Planning Commission. In conclusion, staff recommends Council award the construction contract to A & A Construction, Inc. for the base bid and Add Alternate 1 and simultaneously approve a deduct change order. The proposed deductions do not significantly alter the project and, in fact, could be added back in at a later time should funding be identified. The change order does not significantly alter the scope or function of the project to the extent that the project should be rebid. In addition, it is unlikely that much would be gained by rebidding the project. As demonstrated by the single bid received by the City, there is a not a competitive market for projects involving the unique design and construction techniques associated with this project. CMR:541:03 Page 4 of 7 Construction Contract Contingency The change order amount of $ 67,200, which equals 15 percent of the total contract ($448,000), is requested because of the unusual design of the building. The building incorporates hay bale construction techniques, photo-voltaic electrical system, earthen stucco and use of lumber and building materials that have been recycled from a former house on the Preserve. These ’green’ building techniques may result in some unexpected construction costs. Any contingency monies remaining at the end of the project will be used to ’add back’ those items that were deleted from the project with the deduct change order (i.e., the wood stove, benches, horse water trough, etc.) Schedule Construction will begin toward the end of January 2004, with all major structural work complete by September of next year. Minor finish work, painting, landscaping and interior decoration will be complete by January 2005. ALTERNATIVES TO STAFF RECOMMENDATION Project Alternative #1 - Do Not Proceed With Project and Reject Bids In this scenario, Council would reject bids and construction would not proceed until new funding is identified or until additional competitive bids are solicited. Staff recommends against this alternative because it is unlikely due to of the uniqueness of the building design and construction techniques that any additional bidders would respond.. Project Alternative #2 - Accept Only the Base Bid In this scenario, only the base bid of $410,000 for the meeting room and work space would be accepted and Add Alternate 1 for the restroom facility, which was bid at $112,000, would be rejected. This portion of the project would be bid at a later date. Staff recommends against this alternative because the restrooms are considered an important amenity and a needed facility when providing orientation sessions for large groups of people. In addition, it is more economical to build the entire structure in one phase rather than having to tie in utilities and the roof line of a second building at a later date. RESOURCE IMPACT The attached BAO requests an increase in revenue of $135,711 $299,536 for CIP Project OS-98012. and expenditure of The funding sources for this project total $522,596, of which $223,060 has already been included in the CIP budget and an additional $299,536 in grant funds which have been identified but are not incorporated into the budget: CMR:541:03 Page 5 of 7 Funds in Budget * which includes a partial allocation from the Arastra Fund for design services Funds Not Currently Budgeted Arastra Fund (Peninsula Community Foundation) City of Palo Alto Utilities Roberti-Z’Berg-Harris Urban Open Space Block Grant Program BAO Amount & Subtotal Total Estimated Funding $ 223.060* $110,386 $ 25,325 $163.825 $ 299,536 $ 522,596 Of the remaining $299,536 that is not currently budgeted, $135,711 is readily available from the Peninsula Community Foundation and City Utilities Department. The Roberti- Z’Berg-Harris Block Grant funds, which Council has authorized to be used on this project, will be paid to the City on a reimbursement basis and will become available once a contract is finalized with the State and receipts for reimbursement have been presented. Staff anticipates the contract with the State for this grant to be finalized by January 30, 2004. The funding from this per capita grant program is certain and there is no risk of non-funding. The cost of temporary salaries and supplies necessary for maintaining the restrooms of the new facility will be more than offset from the savings resulting in the elimination of rented toilets currently at the site. Care and maintenance of native plants around the structure will be included in the responsibilities of the Preserve Steward, Acterra, and other volunteers at no cost to the City of Palo Alto while the plants become established. Because the efficiently-designed facility relies on passive solar heating and the occasional use of a wood stove, there are no mechanical systems to maintain in the facility. The annual cost for general facility maintenance of the facility is estimated at $5,000, which will be covered by the existing Open Space operating budget. POLICY IMPLICATIONS The construction of an gateway facility for the purposes of environmental education and promoting restoration of disturbed habitat areas is consistent with City policies and furthers the goals of Policy C-25 of the Community Services element of the Comprehensive Plan in that the facility enhances the City’s ability to protect and conserve the natural environment. ENVIRONMENTAL REVIEW On April 24, 2000, the City Council adopted the Negative Declaration for the Arastradero Preserve Gateway Facility Project (CMR:226:00), finding that there is no substantial evidence that the project would have a significant effect on the environment. CMR:541:03 Page 6 of 7 ATTACHMENTS Attachment A: Attachment B: Attachment C: PREPARED BY: Budget Amendment Ordinance Contract Deduct Change Order Superintendent, Open Space & Sciences DEPARTMENT HEAD: PAUL THILTGEN Director of Community Service CITY MANAGER APPROVAL:~~, ~ ~ x~ E~IIL~ i~.~LI~I~ 0 N Assistant City Manager CMR:541:03 Page 7 of 7 Attachment A ORDINANCE NO. ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING THE BUDGET FOR THE FISCAL YEAR 2003-04 TO INCREASE REVENUE IN THE AMOUNTOF $135,711 AND INCREASE EXPENSE IN THE AMOUNT OF $299,536 FOR CIP OS-98012 (ARASTRADERO PRESERVE GATEWAY FACILITY PROJECT) SECTION I. The City 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 16, 2003 did adopt a budget for fisca! year 2003-04; and B. A contract is proposed for the construction of an approximately 1,200 square-foot visitor center and work space at Arastradero Preserve; and C. Council approved the conceptual design and necessary building variances of the Gateway Facility which is located on a 77- acre parcel on the east side of Arastradero Road within the Preserve adjacent to an existing unpaved public parking !ot on April 24,2000; and D. Reimbursable Grant funding for this project will come from the Roberti-Z’Berg-Harris Urban Open Space Block Grant Program. However, since the grant is not reimbursable until December 2004 the Genera! Fund Budget Stabilization Reserve wil! advance $163,825 to this project; and E. The Utility Public Benefits fund is contributing $25,325 for energy conservation measures and $110,386 is from the Arastra Fund ¯ (Peninsula Community Foundation); and F. The additional appropriation of funds from the General Fund Budget Stabilization Reserve is a one-time cost, that wil! be reimbursed and no future year General Fund ongoing costs are anticipated; and G. City Council authorization is needed to accept and expend the grant receipts; and H. City Council authorization is needed to amend the 2003-04 budget as hereinafter set forth. NOW, THEREFORE, the Council of the City of Palo Alto does ORDAIN as follows: SECTION 2. Revenue in CIP OS-98012 is increased by Two Hundred Ninety-Nine Thousand Five Hundred Thirty-Six Dollars ($299,536)for receipt of funds (see table below): Revenue Source Revenue Amount Arastra Fund (Peninsula $110,386 Community Foundation) City of Palo Alto Utilities $ 25,325 (Public Benefits) General Fund Budget $163,825 Stabilization Reserve $299,536 SECTION 3. The sum of Twenty-Five Thousand Three Hundred Twenty-Five Dollars ($25,325) is hereby appropriated to Capital Improvement Project No. OS-98012, and the City of Palo Alto Utilities, Public Benefits Program is correspondingly reduced. SECTION 4. The sum of One Hundred Ten Thousand Three Hundred Eighty-Six Dollars ($110,386) is hereby appropriated to Capita! Improvement Project No. OS-98012, from the Arastra Fund (Peninsula Community Foundation). SECTION 5. The sum of One Hundred Sixty-Three Thousand Eight Hundred Twenty-Five Dollars ($163,825) is hereby transferred from the Genera! Fund Budget Stabilization Reserve for the appropriation of Capital Improvement Project Number OS-98012, Arastradero Project Gateway Facility. SECTION 6. As specified in Section 2.28.080(a) of the Palo Alto Municipa! Code, a two-thirds vote of the City Council is required to adopt this ordinance. SECTION 7. On April 24, 2000, the City Council adopted the Negative Declaration for the Arastradero Preserve Gateway Facility Project (CMR:226:00), finding that there is no substantial evidence that the project would have a significant effect on the environment. SECTION 8. As provided in Section 2.04.350 of the Palo Alto Municipal Code, this ordinance shall become effective upon adoption. INTRODUCED AND PASSED: AYES: NOES: ABSTENTIONS: ABSENT: ATTEST:APPROVED: City Clerk Mayor APPROVED AS TO FORM:City Manager Senior Asst. City Attorney Director of Services Administrative Director of Community Services Attachment B CONTRACT No. C04150735 (Public Work) Community Services Department This Contract, number C04150735 dated __ is entered into by and between the City of Palo Alto, a chartered city and a municipal corporation of the State of California ("City"), and A & A Construction ("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 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 to the satisfaction of City. The Project and Work is generally described as follows: Title of Project: Arastradero Gateway Facility, Invitation for Bid (IFB) Number 150735 Contract Amount:$448,000.00 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. 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 Contractor’s 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 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 Contract. CITY OF PALO ALTO PAGE 1 OF 7rev. 12/00 10. 11. 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, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly 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 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 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 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, 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 Liability 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. 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 any time 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 its 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 rights 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 parties in the administration of any part or provision of this Contract be construed to waive or to lessen the right 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 right of inspection is solely for the benefit of City. 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. 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. 12.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: CITY OF PALO ALTO PAGE 2 OF 7rev. 12/00 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 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 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 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 will furnish true and accurate statements, records, reports, resolutions, certifications, and other written information as may be requested of Contractor by City 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. 13.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. 14.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. 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 and Work-related writings and business records, as such terms are defined 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. CITY OF PALO ALTO PAGE 3 OF 7rev. 12/00 16. 17. 18. 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 transmission, 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:City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 Copy to:City of Palo Alto Community Services Department 1305 Middlefield Road Palo Alto, CA 94301 To Contractor: Attn: Young Tran, Project Manager A & A Construction 148 Arroyo Grande Way Los Gatos, CA 95032 Attn: A.B. Barrera 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 writing 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. 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 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. CITY OF PALO ALTO PAGE 4 OF 7 rev. 12/00 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. ho 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 of 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 deemed 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 act 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 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 City. Contractor shall not be entitled 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. 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 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 parties 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. 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 litigation is necessary to enforce a settlement reached at mediation pursuant to California Code of Civil CITY OF PALO ALTO PAGE 5 OF 7rev. 12/00 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 Pato Alto, County of Santa Clara, State of California on the date first stated above. ATTEST:CITY OF PALO ALTO City Clerk By: Its Mayor APPROVED AS TO FORM: Senior Assistant City Attorney APPROVED:CONTRACTOR: By: Assistant City Manager Name: By: Director of Community Services Dept.Title:- By:Director of Administrative Services Name: 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) CITY OF PALO ALTO PAGE 6 OF 7 rev. 12/00 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code 1189) STATE OF ) COUNTY OF ) On , before me, a notary public in and for said County, personally appeared , personally known to me (or proved to me on the basis of satisfactory 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) CITY OF PALO ALTO PAGE 7 OF 7 rev. 12/00 ATI’ACHMENT C DEDUCT CHANGE ORDER CITY OF PALO ALTO DEPARTMENT OF COMMUNITY SERVICES Project Number:OS-98012 Change Order Number:1 Contract Number: TBD Issuance Date:12/15/03 Greg BettsContractor Name: A & A Construction, Inc. Prepared by: Description of Change Order: Reduce the contract amount by $74,000 to omit or modif7 items in the contract per A & A’s bid dated 9/9/03. Items modified include elimination of decomposed granite pathway to the building, installation of the wood stove in the meeting room, bench between bathroom building and meeting room, finish carpentry_ in bathroom building, finish carpentry and casework in meeting room and office, utilization of photo-voltaic system for the generation of electricity needed for construction. All work shall be in accordance with the Project specifications. Change in Contract Amount:$ (74,000.00) Change in Contract Time: 0 Calendar Days Basis of Change Order Cost: Lump sum (Unit Cost, Lump Sum, or Time and Materials) 2. Contractor shall sign and return to City for City approval signatures. Contractor Approval: Title: Date: 4. Signature required on all Change Orders. City Approval: Title: Date: Division Head 1. Consultant shall sign prior to Contractor and return to City. Indicate N/A if not applicable. Consultant Approval: Title: Date: N/A 3. Signature required on all Change Orders. City Approval: Title: Date: Project Manager 5. Department Head signature required when any individual Change Order item exceeds $10,000. City Approval: Title:Director of Community Services Date: Summary of Amounts Payable Under Contract Net Effect of Previous Change Orders: This Change Order: Net Effect of all Change Orders: Amount of Original Bid: Net Contract Amount: $0.00 $(74,000.00) $(74,000.00) $ 522,000.00 $ 448,000.00