HomeMy WebLinkAboutStaff Report 3052
City of Palo Alto (ID # 3052)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 9/18/2012
Summary Title: Award of Contract for Alma Street HSIP Project
Title: Adoption of a Budget Amendment Ordinance in the Amount of
$250,000 to Capital Improvement Program Project PE-86070 to be used in the
Alma Street Highway Safety Improvement Program (HSIP) Project; and
Approval with Interstate Grading & Paving, Inc. In The Amount Not to Exceed
$1,401,930 for the Alma Street HSIP Project, the 4th of 6 Contracts in the
2012 Street Maintenance Program Project (CIP PE-86070)
From: City Manager
Lead Department: Public Works
Recommendation
Staff recommends that Council:
1. Adopt the attached Budget Amendment Ordinance (BAO) in the amount of
$250,000 for the Rubberized Pavement grant awarded by the California
Department of Resources Recycling and Recovery (CalRecycle) for Street
Maintenance Program project PE-86070 – Alma Street HSIP Capital
Improvement Program Project;
2. Approve and authorize the City Manager or his designee to execute the
attached contract with Interstate Grading & Paving, Inc. in an amount of
$1,401,930 for Street Maintenance Program project PE-86070 – Alma
Street HSIP Capital Improvement Program; and
3. Authorize the City Manager or his designee to negotiate and execute one or
more change orders to the contract with Interstate Grading & Paving, Inc.
for related, additional but unforeseen work which may develop during the
project, the total value of which shall not exceed $140,193.
Background
The Public Works Engineering Services Division manages construction contracts
for concrete repair, preventive maintenance, resurfacing and reconstruction of
various city streets on an annual basis. The candidate streets are surveyed
biannually by Public Works Engineering Services staff and then rated by a
computerized pavement maintenance management system (PMMS). In 2011, the
asphalt paving project repaved five (5) lane miles of Palo Alto Streets. The cost of
the contract was approximately $2.2 million.
Since 2003, the Public Works Engineering Services Division has implemented
multi-phased resurfacing projects; phase one for concrete repairs and
preparation, phase two for preventive maintenance, and phase three for asphalt
concrete resurfacing. This method of phasing has proved to be more cost
effective by avoiding the typical 15% markup that prime contractors place on
work that is performed by their subcontractors. This contract is the fourth of six
contracts for the calendar year 2012 streets program.
All streets have been coordinated with the City’s Utilities Department and
Transportation Division of Planning and Community Environment Department to
minimize cutting newly resurfaced streets. Extensive public outreach will be
conducted before and during construction phase to inform the community step
by step throughout the process.
Discussion
Project Description
Staff is recommending approval of the 4th of 6 street resurfacing contracts to be
approved this calendar year as part of an enhanced program to increase the
condition of Palo Alto’s streets. This contract constitutes a $1,401,930
expenditure for 725,000 square feet (9 lane miles) of improvements as part of an
effort to raise the Pavement Condition Index (a Statewide scoring system) from 73
to 85 by 2022.
In 2009, the City was awarded $900,000 Highway Safety Improvement Program
(HSIP) grant to resurface and make safety improvements along Alma Street from
Colorado Avenue to the southern city limit. This project will repave Alma Street
from Colorado Avenue to Charleston Road with rubberized pavement and reseal
Alma Street from Charleston Road to the Southern City Limit. Additionally, the
project scope includes the replacement of deteriorated guardrails, installation of
video detection at Alma/Charleston and Alma/Meadow intersections and 1,000
lineal feet of new curb and gutter. In addition, the Public Works Department will
utilize a $250,000 Rubberized Pavement grant awarded by the California
Department of Resources Recycling and Recovery (CalRecycle) in 2011 which will
be reimbursed at the end of the project. The grant pays for the additional cost of
using rubberized pavement vs. traditional hot mix asphalt. The use of rubberized
pavement is ideal for Alma Street where there are long stretches of pavement
with little turning movements. Rubberized pavement is known to quiet road
noise from high speed travel and is a green product which diverts used tires from
the landfill.
Bid Process
On August 14, 2012, a notice inviting formal bids (IFB) for the Alma Street HSIP
Project was posted at City Hall, and was sent to 14 builder’s exchanges and 26
contractors. The bidding period was 21 calendar days. Bids were received from 4
qualified contractors on September 4, 2012 as listed on the attached Bid
Summary (Attachment C).
Summary of Bid Process
Bid Name/Number Alma Street HSIP Project
Proposed Length of Project 90 calendar days
Number of Bid Packages Sent
to Contractors 26
Number of Bid Packages Sent
to Builder’s Exchanges 14
Total Days to Respond to Bid 21
Pre-Bid Meeting? Yes
Number of Bids Received: 4
Bid Price Range
(base bid plus 1 alternate) From a low of $1,401,930 to a high of $2,058,910
Bids ranged from a high of $2,058,910 to a low bid of $1,401,930 and ranged from
24% above to 16% below the engineer’s estimate of $1,663,930. Staff has
reviewed all bids submitted and found that the bid totaling $1,401,930 submitted
by Interstate Grading & Paving, Inc. the lowest and that Interstate Grading &
Paving, Inc. be declared the lowest responsible bidder. Staff recommends
awarding the base bid plus add alternate # 1 for a contract total of $1,401,930.
The change order amount of $140,193, which equals ten percent of the total
contract, is requested for related, additional, but unforeseen work which may
develop during the project.
Staff reviewed other similar projects performed by the lowest responsible bidder,
Interstate Grading & Paving, Inc. including past paving projects performed for the
City. There were no significant complaints with their previous work. Staff also
checked with the Contractor's State License Board and found that the contractor
has an active license on file.
Resource Impact
Staff is requesting a Budget Amendment Ordinance in the amount of $250,000 to
accept the reimbursable Rubberized Pavement grant awarded by the California
Department of Resources Recycling and Recovery (CalRecycle) to increase the
Street Maintenance Capital Improvement Program project PE-86070 budget. The
Infrastructure Reserve will be reimbursed by the equal amount upon completion
of the project. The remaining funds required for the award of this construction
contract are currently available in the Street Maintenance Capital Improvement
Program project PE-86070 budget. The HSIP grant award of $900,000 was already
included in the project in FY 2013 budget. The BAO will have no net impact on
the Infrastructure Reserve balance.
Policy Implications
This project is in conformance with City of Palo Alto’s Comprehensive Plan and
does not represent any changes to existing City policies.
Environmental Review
Street resurfacing projects are categorically exempt from the California
Environmental Quality Act (CEQA) under Section 15301c of the CEQA Guidelines
as repair, maintenance and/or minor alteration of the existing facilities and no
further environmental review is necessary.
Attachments:
A - Budget Amendment Ordinance (DOC)
B - 147323 Alma HSIP Project HSIPL 5100 (014) - Interstate Grading & Paving (DOC)
C - ALMA STREET BID SUMMARY FINAL (PDF)
Prepared By: Holly Boyd, Project Engineer
Department Head: J. Michael Sartor, Director
City Manager Approval: ____________________________________
James Keene, City Manager
ORDINANCE NO.xxxx
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO
AMENDING THE BUDGET FOR THE FISCAL YEAR 2013 TO
PROVIDE AN APPROPRIATION OF $250,000 TO CAPITAL
IMPROVEMENT PROGRAM PROJECT NUMBER PE-86070, STREET
MAINTENANCE, FOR THE ALMA STREET HIGHWAY SAFETY
IMPROVEMENT PROGRAM PROJECT
The Council of the City of Palo Alto does ordain as follows:
SECTION 1. The Council of the City of Palo Alto finds and
determines as follows:
A. Pursuant to the provisions of Section 12 of Article
III of the Charter of the City of Palo Alto, the Council on
June 18, 2012 did adopt a budget for fiscal year 2013; and
B. In fiscal year 2013, the Council appropriated
$4,653,635 for CIP Project PE-86070, Street Maintenance, for
annual resurfacing, slurry seal, crack seal, and
reconstruction of city streets. Included in CIP Project PE-
86070 is the Alma Street Highway Safety Improvement Program
(HSIP) Project to resurface and make safety improvements along
Alma Street; and
C. In 2011, the City was awarded a grant of $250,000 by
the California Department of Resources Recycling and Recovery
for the use of rubberized pavement. An appropriation of
$250,000 to CIP Project PE-86070 is needed to authorize
expenditures related to the grant for the use of rubberized
pavement along Alma Street; and
D. City Council authorization is needed to amend the 2013
budget as hereinafter set forth.
SECTION 2. The sum of Two Hundred Fifty Thousand Dollars
($250,000) is hereby appropriated to CIP Project PE-86070,
Street Maintenance, for the Alma Highway Safety Improvement
Program Project.
SECTION 3. The Capital Projects Fund will be reimbursed
by grant funding from the California Department of Resources
Recycling and Recovery in the amount of Two Hundred Fifty
Thousand Dollars ($250,000).
SECTION 4. The transactions above will have no net impact
on the balance of the Capital Projects Fund Infrastructure
Reserve.
SECTION 5. 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 6. As provided in Section 2.04.330 of the Palo
Alto Municipal Code, this ordinance shall become effective
upon adoption.
SECTION 7. The resurfacing project is categorically
exempt from the California Environmental Quality Act (CEQA)
under Section 15301c of the CEQA Guidelines as repair,
maintenance and/or minor alteration of the existing facilities
and no further environmental review is necessary.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
ATTEST: APPROVED:
City Clerk Mayor
APPROVED AS TO FORM:
City Manager
Senior Assistant City
Attorney
Director of Public Works
Director of Administrative
Services
Invitation for Bid (IFB) Package 1 Rev. July 2012
CONSTRUCTION CONTRACT
CONSTRUCTION CONTRACT
Contract No. C13147323
City of Palo Alto
and
Interstate Grading & Paving, Inc.
PROJECT
Alma Street HSIP Project HSIPL 5100 (014)
Invitation for Bid (IFB) Package 2 Rev. July 2012
CONSTRUCTION CONTRACT
CONSTRUCTION CONTRACT
TABLE OF CONTENTS
SECTION 1. INCORPORATION OF RECITALS AND DEFINITIONS……………………………….. .................... 5
1.1 Recitals .............................................................................................................. 5
1.2 Definitions .......................................................................................................... 5
SECTION 2. THE PROJECT……………………………………………………………………………… .............................. 5
SECTION 3. THE CONTRACT DOCUMENTS…………………………………………………………. ......................... 5
3.1 List of Documents …………………………………………………………………………………………. ..... 5
3.2 Order of Precedence …………………………………………………………………………… ............... 6
SECTION 4. THE WORK ………………………………………………………………………………….............................. 7
SECTION 5. PROJECT TEAM ………………………………………………………………………….. ............................. 7
SECTION 6. TIME OF COMPLETION ………………………………………………………………….. .......................... 7
6.1 Time Is of Essence ....................................................................................... ……… 7
6.2 Commencement of Work .................................................................................... 7
6.3 Contract Time ..................................................................................................... 7
6.4 Liquidated Damages ........................................................................................... 7
6.4.1 Entitlement……………………………………………………………………………………………. 7
6.4.2 Daily Amount…………………………………………………………………………………………. 8
6.4.3 Exclusive Remedy………………………………………………………………………………….. 8
6.4.4 Other Remedies…………………………………………………………………………………... 8
6.5 Adjustments to Contract Time ......................................................................... … 8
SECTION 7. COMPENSATION TO CONTRACTOR………………………………………………………………………... 8
7.1 Contract Sum ……………………………………………………………………………………………………… 1
7.2 Full Compensation …………………………………………………………………………………………….. 9
7.3 Compensation for Extra or Deleted Work …………………………………………………………….9
7.3.1 Self Performed Work………………………………………………………………………………… 9
7.3.2 Subcontractors…………………………………………………………………………………………. 9
SECTION 8. STANDARD OF CARE .................................................................................................. 9
SECTION 9. INDEMNIFICATION .................................................................................................... 10
9.1 Hold Harmless…………………………………………………………………………………………………….. 10
9.2 Survival………………………………………………………………………………………………………………. 10
SECTION 10. NONDISCRIMINATION ............................................................................................. 10
SECTION 11. INSURANCE AND BONDS ......................................................................................... 10
Invitation for Bid (IFB) Package 3 Rev. July 2012
CONSTRUCTION CONTRACT
SECTION 12. PROHIBITION AGAINST TRANSFERS ......................................................................... 11
SECTION 13. NOTICES .................................................................................................................. 11
13.1 Method of Notice ………………………………………………………………………………………………..11
13.2 Notice Recipients ................................................................................................ 11
13.3 Change of Address .............................................................................................. 12
14.1 Resolution of Contract Disputes .......................................................................... 12
14.2 Resolution of Other Disputes .............................................................................. 12
14.2.1 Non-Contract Disputes ……………………………………………………………………………….12
14.2.2 Litigation, City Election ……………………………………………………...........................13
14.3 Submission of Contract Dispute …………………………………………………………………………..13
14.3.1 By Contractor …………………………………………………………………………………………. 13
14.3.2 By City ……………………………………………………………………………………………………. 13
14.4 Contract Dispute Resolution Process .............................................................. …… 13
14.4.1 Direct Negotiation………………………………………………………………………… ………….13
14.4.2 Deferral of Contract Disputes ………………………………………………………………… 14
14.4.3 Mediation ………………………………………………………………………………………………….14
14.4.4 Binding Arbitration ……………………………………………………………………………………15
14.5 Non-Waiver …………………………………………………………………………………………………………16
SECTION 15. DEFAULT ................................................................................................................. 16
15.1 Notice of Default ................................................................................................ 16
15.2 Opportunity to Cure Default ............................................................................... 16
SECTION 16. CITY'S RIGHTS AND REMEDIES ................................................................................. 16
16.1 Remedies Upon Default ...................................................................................... 16
16.1.1 Delete Certain Servic………………………………………………………...........................16
16.1.2 Perform and Withhold ……………………………………………………………………………. 16
16.1.3 Suspend The Construction Contract ………………………………………………………….16
16.1.4 Terminate the Construction Contract for Default ……………………………………..17
16.1.5 Invoke the Performance Bond ………………………………………………………………….17
16.1.6 Additional Provisions ……………………………………………………………………………….17
16.2 Delays by Sureties .............................................................................................. 17
16.3 Damages to City ................................................................................................. 17
16.3.1 For Contractor's Default …………………………………………………………………………..17
16.3.2 Compensation for Losses ………………………………………………………………………….17
16.5 Suspension by City for Convenience .................................................................... 18
16.6 Termination Without Cause ................................................................................ 18
Invitation for Bid (IFB) Package 4 Rev. July 2012
CONSTRUCTION CONTRACT
16.6.1 Compensation ………………………………………………………………………………………….18
16.6.2 Subcontractors …………………………………………………………………………………………18
16.7 Contractor’s Duties Upon Termination ................................................................ 19
SECTION 17. CONTRACTOR'S RIGHTS AND REMEDIES .................................................................. 19
17.1 Contractor’s Remedies ........................................................................................ 19
17.1.1 For Work Stoppage ………………………………………………………………………………….. 19
17.1.2 For City's Non-Payment …………………………………………………………………………… 19
17.2 Damages to Contractor ....................................................................................... 19
SECTION 18. ACCOUNTING RECORDS .......................................................................................... 19
18.1 Financial Management and City Access ......................................................... ……. 19
18.2 Compliance with City Requests ....................................................................... …. 20
SECTION 19. INDEPENDENT PARTIES ........................................................................................... 20
SECTION 20. NUISANCE ............................................................................................................... 20
SECTION 21. PERMITS AND LICENSES........................................................................................... 20
SECTION 22. WAIVER .................................................................................................................. 20
SECTION 23. GOVERNING LAW .................................................................................................... 20
SECTION 24. COMPLETE AGREEMENT .......................................................................................... 21
SECTION 25. SURVIVAL OF CONTRACT ......................................................................................... 21
SECTION 26. PREVAILING WAGES ................................................................................................ 21
SECTION 27. NON APPROPRIATION ............................................................................................. 21
SECTION 28. GOVERNMENTAL POWERS ...................................................................................... 21
SECTION 29. ATTORNEY FEES ...................................................................................................... 21
SECTION 30. COUNTERPARTS ...................................................................................................... 22
SECTION 31. SEVERABILITY .......................................................................................................... 22
Invitation for Bid (IFB) Package 5 Rev. July 2012
CONSTRUCTION CONTRACT
CONSTRUCTION CONTRACT
THIS CONSTRUCTION CONTRACT entered into on September 18, 2012 (“Execution Date”) by and between
the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and INTERSTATE GRADING &
PAVING, INC. ("Contractor"), is made with reference to the following:
R E C I T A L S:
A. City is a municipal corporation duly organized and validly existing under the laws of the State of
California with the power to carry on its business as it is now being conducted under the statutes of the
State of California and the Charter of City.
B. Contractor is a California Corporation duly organized and in good standing in the State of
California, Contractor’s License Number 366020. Contractor represents that it is duly licensed by the State
of California and has the background, knowledge, experience and expertise to perform the obligations set
forth in this Construction Contract.
C. On August 14, 2012, City issued an Invitation for Bids (IFB) to contractors for the Alma Street Hsip
Project Hsipl 5100 (014) (“Project”). In response to the IFB, Contractor submitted a bid.
D. City and Contractor desire to enter into this Construction Contract for the Project, and other
services as identified in the Bid Documents for the Project upon the following terms and conditions.
NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set forth
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually agreed by and between the undersigned parties as follows:
SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS.
1.1 Recitals.
All of the recitals are incorporated herein by reference.
1.2 Definitions.
Capitalized terms shall have the meanings set forth in this Construction Contract and/or in the
General Conditions. If there is a conflict between the definitions in this Construction Contract and
in the General Conditions, the definitions in this Construction Contract shall prevail.
SECTION 2 THE PROJECT.
The Project is the construction of the Alma Street HSIP Project HSIPL 5100 (014) ("Project").
SECTION 3 THE CONTRACT DOCUMENTS.
3.1 List of Documents.
The Contract Documents (sometimes collectively referred to as “Agreement” or “Bid Documents”) consist
of the following documents which are on file with the Purchasing Division and are hereby incorporated by
reference.
1) Change Orders
2) Field Change Orders
Invitation for Bid (IFB) Package 6 Rev. July 2012
CONSTRUCTION CONTRACT
3) Contract
4) Project Plans and Drawings
5) Technical Specifications
6) Special Provisions
7) Notice Inviting Bids
8) Instructions to Bidders
9) General Conditions
10) Bidding Addenda
11) Invitation for Bids
12) Contractor's Bid/Non-Collusion Affidavit
13) Reports listed in the Bidding Documents
14) Public Works Department’s Standard Drawings and Specifications dated 2007 and
updated from time to time
15) Utilities Department’s Water, Gas, Wastewater, Electric Utilities Standards dated 2005
and updated from time to time
16) City of Palo Alto Traffic Control Requirements
17) City of Palo Alto Truck Route Map and Regulations
18) Notice Inviting Pre-Qualification Statements, Pre-Qualification Statement, and Pre-
Qualification Checklist (if applicable)
19) Performance and Payment Bonds
20) Insurance Forms
3.2 Order of Precedence.
For the purposes of construing, interpreting and resolving inconsistencies between and among the
provisions of this Contract, the Contract Documents shall have the order of precedence as set forth in the
preceding section. If a claimed inconsistency cannot be resolved through the order of precedence, the City
shall have the sole power to decide which document or provision shall govern as may be in the best
interests of the City.
Invitation for Bid (IFB) Package 7 Rev. July 2012
CONSTRUCTION CONTRACT
SECTION 4 THE WORK.
The Work includes all labor, materials, equipment, services, permits, fees, licenses and taxes, and all other
things necessary for Contractor to perform its obligations and complete the Project, including, without
limitation, any Changes approved by City, in accordance with the Contract Documents and all Applicable
Code Requirements.
SECTION 5 PROJECT TEAM.
In addition to Contractor, City has retained, or may retain, consultants and contractors to provide
professional and technical consultation for the design and construction of the Project. The Project requires
that Contractor operate efficiently, effectively and cooperatively with City as well as all other members of
the Project Team and other contractors retained by City to construct other portions of the Project.
SECTION 6 TIME OF COMPLETION.
6.1 Time Is of Essence.
Time is of the essence with respect to all time limits set forth in the Contract Documents.
6.2 Commencement of Work.
Contractor shall commence the Work on the date specified in City’s Notice to Proceed.
6.3 Contract Time.
Work hereunder shall begin on the date specified on the City’s Notice to Proceed and shall be
completed
not later than .
within Ninety calendar days (90) after the commencement date specified in City’s
Notice to Proceed.
6.4 Liquidated Damages.
6.4.1 Entitlement.
City and Contractor acknowledge and agree that if Contractor fails to fully and
satisfactorily complete the Work within the Contract Time, City will suffer, as a result of
Contractor’s failure, substantial damages which are both extremely difficult and
impracticable to ascertain. Such damages may include, but are not limited to:
(i) Loss of public confidence in City and its contractors and consultants.
(ii) Loss of public use of public facilities.
(iii) Extended disruption to public.
Invitation for Bid (IFB) Package 8 Rev. July 2012
CONSTRUCTION CONTRACT
6.4.2 Daily Amount.
City and Contractor have reasonably endeavored, but failed, to ascertain the actual
damage that City will incur if Contractor fails to achieve Substantial Completion of the
entire Work within the Contract Time. Therefore, the parties agree that in addition to all
other damages to which City may be entitled other than delay damages, in the event
Contractor shall fail to achieve Substantial Completion of the entire Work within the
Contract Time, Contractor shall pay City as liquidated damages the amount of $500 per
day for each Day occurring after the expiration of the Contract Time until Contractor
achieves Substantial Completion of the entire Work. The liquidated damages amount is
not a penalty but considered to be a reasonable estimate of the amount of damages City
will suffer by delay in completion of the Work.
6.4.3 Exclusive Remedy.
City and Contractor acknowledge and agree that this liquidated damages provision shall
be City’s only remedy for delay damages caused by Contractor’s failure to achieve
Substantial Completion of the entire Work within the Contract Time.
6.4.4 Other Remedies.
City is entitled to any and all available legal and equitable remedies City may have where
City’s Losses are caused by any reason other than Contractor’s failure to achieve
Substantial Completion of the entire Work within the Contract Time.
6.5 Adjustments to Contract Time.
The Contract Time may only be adjusted for time extensions approved by City and agreed to by
Change Order executed by City and Contractor in accordance with the requirements of the
Contract Documents.
SECTION 7 COMPENSATION TO CONTRACTOR.
Invitation for Bid (IFB) Package 1 Rev. July 2012
CONSTRUCTION CONTRACT
7.1 Contract Sum.
Contractor shall be compensated for satisfactory completion of the Work in compliance with the
Contract Documents the Contract Sum of One Million Four Hundred One Thousand Nine Hundred
Thirty Dollars ($1,401,930).
[This amount includes the Base Bid and Add Alternates 1.]
/ /
/ /
Invitation for Bid (IFB) Package 9 Rev. July 2012
CONSTRUCTION CONTRACT
7.2 Full Compensation.
The Contract Sum shall be full compensation to Contractor for all Work provided by Contractor
and, except as otherwise expressly permitted by the terms of the Contract Documents, shall cover
all Losses arising out of the nature of the Work or from the acts of the elements or any unforeseen
difficulties or obstructions which may arise or be encountered in performance of the Work until
its Acceptance by City, all risks connected with the Work, and any and all expenses incurred due to
suspension or discontinuance of the Work. The Contract Sum may only be adjusted for Change
Orders issued, executed and satisfactorily performed in accordance with the requirements of the
Contract Documents.
7.3 Compensation for Extra or Deleted Work.
The Contract Sum shall be adjusted (either by addition or credit) for Changes in the Work involving
Extra Work or Deleted Work based on one or more of the following methods to be selected by
City:
1. Unit prices stated in the Contract Documents or agreed upon by City and Contractor,
which unit prices shall be deemed to include Contractor Markup and
Subcontractor/Sub-subcontractor Markups permitted by this Section.
2. A lump sum agreed upon by City and Contractor, based on the estimated Allowable
Costs and Contractor Markup and Subcontractor Markup computed in accordance
with this Section.
3. Contractor’s Allowable Costs, plus Contractor Markup and Subcontractor Markups
applicable to such Extra Work computed in accordance with this Section.
Contractor Markup and Subcontractor/Sub-subcontractor Markups set forth herein are the full
amount of compensation to be added for Extra Work or to be subtracted for Deleted Work that is
attributable to overhead (direct and indirect) and profit of Contractor and of its Subcontractors
and Sub-subcontractors, of every Tier. When using this payment methodology, Contractor
Markup and Subcontractor/Sub-subcontractor Markups, which shall not be compounded, shall be
computed as follows:
7.3.1 Markup Self-Performed Work.
10% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be
performed by Contractor with its own forces.
7.3.2 Markup for Work Performed by Subcontractors.
15% of the Allowable Costs for that portion of the Extra Work or Deleted Work to be
performed by a first Tier Subcontractor.
SECTION 8 STANDARD OF CARE.
Contractor agrees that the Work shall be performed by qualified, experienced and well-supervised
personnel. All services performed in connection with this Construction Contract shall be performed in a
manner consistent with the standard of care under California law applicable to those who specialize in
providing such services for projects of the type, scope and complexity of the Project.
Invitation for Bid (IFB) Package 10 Rev. July 2012
CONSTRUCTION CONTRACT
SECTION 9 INDEMNIFICATION.
9.1 Hold Harmless.
To the fullest extent allowed by law, Contractor will defend, indemnify, and hold harmless City, its
City Council, boards and commissions, officers, agents, employees, representatives and volunteers
(hereinafter collectively referred to as "Indemnitees"), through legal counsel acceptable to City,
from and against any and all Losses arising directly or indirectly from, or in any manner relating to
any of, the following:
(i) Performance or nonperformance of the Work by Contractor or its Subcontractors or Sub-
subcontractors, of any tier;
(ii) Performance or nonperformance by Contractor or its Subcontractors or Sub-
subcontractors of any tier, of any of the obligations under the Contract Documents;
(iii) The construction activities of Contractor or its Subcontractors or Sub-subcontractors, of
any tier, either on the Site or on other properties;
(iv) The payment or nonpayment by Contractor to any of its employees, Subcontractors or
Sub-subcontractors of any tier, for Work performed on or off the Site for the Project; and
(v) Any personal injury, property damage or economic loss to third persons associated with
the performance or nonperformance by Contractor or its Subcontractors or Sub-
subcontractors of any tier, of the Work.
However, nothing herein shall obligate Contractor to indemnify any Indemnitee for Losses
resulting from the sole or active negligence or willful misconduct of the Indemnitee. Contractor
shall pay City for any costs City incurs to enforce this provision. Nothing in the Contract
Documents shall be construed to give rise to any implied right of indemnity in favor of Contractor
against City or any other Indemnitee.
9.2 Survival.
The provisions of Section 9 shall survive the termination of this Construction Contract.
SECTION 10 NONDISCRIMINATION.
As set forth in Palo Alto Municipal Code section 2.30.510, Contractor certifies that in the performance of
this Agreement, it shall not discriminate in the employment of any person because of the race, skin color,
gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status,
familial status, weight or height of such person. Contractor acknowledges that it has read and understands
the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination
Requirements and the penalties for violation thereof, and will comply with all requirements of Section
2.30.510 pertaining to nondiscrimination in employment.
SECTION 11 INSURANCE AND BONDS.
On or before the Execution Date, Contractor shall provide City with evidence that it has obtained insurance
and Performance and Payment Bonds satisfying all requirements in Article 11 of the General Conditions.
Failure to do so shall be deemed a material breach of this Construction Contract.
Invitation for Bid (IFB) Package 11 Rev. July 2012
CONSTRUCTION CONTRACT
SECTION 12 PROHIBITION AGAINST TRANSFERS.
City is entering into this Construction Contract based upon the stated experience and qualifications of the
Contractor and its subcontractors set forth in Contractor’s Bid. Accordingly, Contractor shall not assign,
hypothecate or transfer this Construction Contract or any interest therein directly or indirectly, by
operation of law or otherwise without the prior written consent of City. Any assignment, hypothecation or
transfer without said consent shall be null and void.
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of
Contractor or of any general partner or joint venturer or syndicate member of Contractor, if the Contractor
is a partnership or joint venture or syndicate or co-tenancy shall result in changing the control of
Contractor, shall be construed as an assignment of this Construction Contract. Control means more than
fifty percent (50%) of the voting power of the corporation or other entity.
SECTION 13 NOTICES.
13.1 Method of Notice.
All notices, demands, requests or approvals to be given under this Construction Contract shall be given in
writing and shall be deemed served on the earlier of the following:
(i) On the date delivered if delivered personally;
(ii) On the third business day after the deposit thereof in the United States mail, postage prepaid, and
addressed as hereinafter provided;
(iii) On the date sent if sent by facsimile transmission;
(iv) On the date sent if delivered by electronic mail; or
(v) On the date it is accepted or rejected if sent by certified mail.
13.2 Notice Recipients.
All notices, demands or requests (including, without limitation, Claims) from Contractor to City
shall include the Project name and the number of this Construction Contract and shall be
addressed to City at:
To City: City of Palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
Copy to: City of Palo Alto
Public Works Administration
250 Hamilton Avenue
Palo Alto, CA 94301
Attn: Elizabeth Ames
Or
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City of Palo Alto
Utilities Engineering
250 Hamilton Avenue
Palo Alto, CA 94301
Attn:
In addition, copies of all Claims by Contractor under this Construction Contract shall be provided
to the following:
Palo Alto City Attorney’s Office
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, California 94303
All Claims shall be delivered personally or sent by certified mail.
All notices, demands, requests or approvals from City to Contractor shall be addressed to:
Interstate Grading & Paving, Inc.
128 So. Maple Avenue
San Francisco, Ca 94080
Attn: H. Michael Pariani
13.3 Change of Address.
In the event of any change of address, the moving party shall notify the other party of the change
of address in writing. Each party may, by written notice only, add, delete or replace any
individuals to whom and addresses to which notice shall be provided.
SECTION 14 DISPUTE RESOLUTION.
14.1 Resolution of Contract Disputes.
Contract Disputes shall be resolved by the parties in accordance with the provisions of this Section
14, in lieu of any and all rights under the law that either party have its rights adjudged by a trial
court or jury. All Contract Disputes shall be subject to the Contract Dispute Resolution Process set
forth in this Section 14, which shall be the exclusive recourse of Contractor and City for such
Contract Disputes.
14.2 Resolution of Other Disputes.
14.2.1 Non-Contract Disputes.
Contract Disputes shall not include any of the following:
(i) Penalties or forfeitures prescribed by statute or regulation imposed by a
governmental agency;
(ii) Third party tort claims for personal injury, property damage or death relating to
any Work performed by Contractor or its Subcontractors or Sub-subcontractors
of any tier;
(iii) False claims liability under California Government Code Section 12650, et. seq.;
(iv) Defects in the Work first discovered by City after Final Payment by City to
Contractor;
(v) Stop notices; or
(vi) The right of City to specific performance or injunctive relief to compel
performance of any provision of the Contract Documents.
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14.2.2 Litigation, City Election.
Matters that do not constitute Contract Disputes shall be resolved by way of an action
filed in the Superior Court of the State of California, County of Santa Clara, and shall not
be subject to the Contract Dispute Resolution Process. However, the City reserves the
right, in its sole and absolute discretion, to treat such disputes as Contract Disputes.
Upon written notice by City of its election as provided in the preceding sentence, such
dispute shall be submitted by the parties and finally decided pursuant to the Contract
Dispute Resolution Process in the manner as required for Contract Disputes, including,
without limitation, City’s right under Paragraph 14.4.2 to defer resolution and final
determination until after Final Completion of the Work.
14.3 Submission of Contract Dispute.
14.3.1 By Contractor.
Contractors may commence the Contract Dispute Resolution Process upon City's written
response denying all or part of a Claim pursuant to Paragraph 4.2.9 or 4.2.10 of the
General Conditions. Contractor shall submit a written Statement of Contract Dispute (as
set forth below) to City within seven (7) Days after City rejects all or a portion of
Contractor's Claim. Failure by Contractor to submit its Statement of Contract Dispute in a
timely manner shall result in City’s decision by City on the Claim becoming final and
binding. Contractor’s Statement of Contract Dispute shall be signed under penalty of
perjury and shall state with specificity the events or circumstances giving rise to the
Contract Dispute, the dates of their occurrence and the asserted effect on the Contract
Sum and the Contract Time. The Statement of Contract Dispute shall include adequate
supporting data to substantiate the disputed Claim. Adequate supporting data for a
Contract Dispute relating to an adjustment of the Contract Time shall include both of the
following:
(i) All of the scheduling data required to be submitted by Contractor under the
Contract Documents to obtain extensions of time and adjustments to the
Contract Time and
(ii) A detailed, event-by-event description of the impact of each event on
completion of Work. Adequate data to support a Statement of Contract Dispute
involving an adjustment of the Contract Sum must include both of the following:
(a) A detailed cost breakdown and
(b) Supporting cost data in such form and including such information and
other supporting data as required under the Contract Documents for
submission of Change Order Requests and Claims.
14.3.2 By City.
City's right to commence the Contract Dispute Resolution Process shall arise at any time
following City's actual discovery of the circumstances giving rise to the Contract Dispute.
City asserts Contract Disputes in response to a Contract Dispute asserted by Contractor.
A Statement of Contract Dispute submitted by City shall state the events or
circumstances giving rise to the Contract Dispute, the dates of their occurrence and the
damages or other relief claimed by City as a result of such events.
14.4 Contract Dispute Resolution Process.
The parties shall utilize each of the following steps in the Contract Dispute Resolution
Process in the sequence they appear below. Each party shall participate fully and in good
faith in each step in the Contract Dispute Resolution Process, and good faith effort shall
be a condition precedent to the right of each party to proceed to the next step in the
process.
14.4.1 Direct Negotiations.
Designated representatives of City and Contractor shall meet as soon as possible (but not
later than ten (10) Days after receipt of the Statement of Contract Dispute) in a good
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faith effort to negotiate a resolution to the Contract Dispute. Each party shall be
represented in such negotiations by an authorized representative with full knowledge of
the details of the Claims or defenses being asserted by such party in the negotiations,
and with full authority to resolve such Contract Dispute then and there, subject only to
City’s obligation to obtain administrative and/or City Council approval of any agreed
settlement or resolution. If the Contract Dispute involves the assertion of a right or claim
by a Subcontractor or Sub-subcontractor, of any tier, against Contractor that is in turn
being asserted by Contractor against City (“Pass-Through Claim”), then the Subcontractor
or Sub-Subcontractor shall also have a representative attend the negotiations, with the
same authority and knowledge as described above. Upon completion of the meeting, if
the Contract Dispute is not resolved, the parties may either continue the negotiations or
any party may declare negotiations ended. All discussions that occur during such
negotiations and all documents prepared solely for the purpose of such negotiations shall
be confidential and privileged pursuant to California Evidence Code Sections 1119 and
1152.
14.4.2 Deferral of Contract Disputes.
Following the completion of the negotiations required by Paragraph 14.4.1, all
unresolved Contract Disputes shall be deferred pending Final Completion of the Project,
subject to City’s right, in its sole and absolute discretion, to require that the Contract
Dispute Resolution Process proceed prior to Final Completion. All Contract Disputes that
have been deferred until Final Completion shall be consolidated within a reasonable time
after Final Completion and thereafter pursued to resolution pursuant to this Contract
Dispute Resolution Process. The parties can continue informal negotiations of Contract
Disputes; provided, however, that such informal negotiations shall not be alter the
provisions of the Agreement deferring final determination and resolution of unresolved
Contract Disputes until after Final Completion.
14.4.3 Mediation.
If the Contract Dispute remains unresolved after negotiations pursuant to Paragraph
14.4.1, the parties shall submit the Contract Dispute to non-binding mediation before a
mutually acceptable third party mediator.
.1 Qualifications of Mediator. The parties shall endeavor to select a mediator who
is a retired judge or an attorney with at least five (5) years of experience in
public works construction contract law and in mediating public works
construction disputes. In addition, the mediator shall have at least twenty (20)
hours of formal training in mediation skills.
.2 Submission to Mediation and Selection of Mediator. The party initiating
mediation of a Contract Dispute shall provide written notice to the other party
of its decision to mediate. In the event the parties are unable to agree upon a
mediator within fifteen (15) Days after the receipt of such written notice, then
the parties shall submit the matter to the American Arbitration Association
(AAA) at its San Francisco Regional Office for selection of a mediator in
accordance with the AAA Construction Industry Mediation Rules.
.3 Mediation Process. The location of the mediation shall be at the offices of City.
The costs of mediation shall be shared equally by both parties. The mediator
shall provide an independent assessment on the merits of the Contract Dispute
and recommendations for resolution. All discussions that occur during the
mediation and all documents prepared solely for the purpose of the mediation
shall be confidential and privileged pursuant to California Evidence Code
Sections 1119 and 1152.
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14.4.4 Binding Arbitration.
If the Contract Dispute is not resolved by mediation, then any party may submit the
Contract Dispute for final and binding arbitration pursuant to the provisions of California
Public Contract Code Sections 10240, et seq. The award of the arbitrator therein shall be
final and may be entered as a judgment by any court of competent jurisdiction. Such
arbitration shall be conducted in accordance with the following:
.1 Arbitration Initiation. The arbitration shall be initiated by filing a complaint in
arbitration in accordance with the regulations promulgated pursuant to
California Public Contract Code Section 10240.5.
.2 Qualifications of the Arbitrator. The arbitrator shall be approved by all parties.
The arbitrator shall be a retired judge or an attorney with at least five (5) years
of experience in public works construction contract law and in arbitrating public
works construction disputes. In addition, the arbitrator shall have at least
twenty (20) hours of formal training in arbitration skills. In the event the parties
cannot agree upon an arbitrator, the provisions of California Public Contract
Code Section 10240.3 shall be followed in selecting an arbitrator possessing the
qualifications required herein.
.3 Hearing Days and Location. Arbitration hearings shall be held at the offices of
City and shall, except for good cause shown to and determined by the arbitrator,
be conducted on consecutive business days, without interruption or
continuance.
.4 Hearing Delays. Arbitration hearings shall not be delayed except upon good
cause shown.
.5 Recording Hearings. All hearings to receive evidence shall be recorded by a
certified stenographic reporter, with the costs thereof borne equally by City and
Contractor and allocated by the arbitrator in the final award.
.6 Limitation of Depositions. The parties may conduct discovery in accordance
with the provisions of section 10240.11 of the Public Contract Code; provided,
however, that depositions shall be limited to both of the following:
(i) Ten (10) percipient witnesses for each party and 5 expert witnesses per
party.
Upon a showing of good cause, the arbitrator may increase the number of
permitted depositions. An individual who is both percipient and expert shall, for
purposes of applying the foregoing numerical limitation only, be deemed an
expert. Expert reports shall be exchanged prior to receipt of evidence, in
accordance with the direction of the arbitrator, and expert reports (including
initial and rebuttal reports) not so submitted shall not be admissible as
evidence.
.7 Authority of the Arbitrator. The arbitrator shall have the authority to hear
dispositive motions and issue interim orders and interim or executory awards.
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.8 Waiver of Jury Trial. Contractor and City each voluntarily waives its right to a
jury trial with respect to any Contract Dispute that is subject to binding
arbitration in accordance with the provisions of this Paragraph 14.4.4.
Contractor shall include this provision in its contracts with its Subcontractors
who provide any portion of the Work.
14.5 Non-Waiver.
Participation in the Contract Dispute Resolution Process shall not waive, release or compromise
any defense of City, including, without limitation, any defense based on the assertion that the
rights or Claims of Contractor that are the basis of a Contract Dispute were previously waived by
Contractor due to Contractor’s failure to comply with the Contract Documents, including, without
limitation, Contractor’s failure to comply with any time periods for providing notice of requests
for adjustments of the Contract Sum or Contract Time or for submission of Claims or supporting
documentation of Claims.
SECTION 15 DEFAULT.
15.1 Notice of Default.
In the event that City determines, in its sole discretion, that Contractor has failed or refused to
perform any of the obligations set forth in the Contract Documents, or is in breach of any
provision of the Contract Documents, City may give written notice of default to Contractor in the
manner specified for the giving of notices in the Construction Contract.
15.2 Opportunity to Cure Default.
Except for emergencies, Contractor shall cure any default in performance of its obligations under
the Contract Documents within two (2) Days (or such shorter time as City may reasonably require)
after receipt of written notice. However, if the breach cannot be reasonably cured within such
time, Contractor will commence to cure the breach within two (2) Days (or such shorter time as
City may reasonably require) and will diligently and continuously prosecute such cure to
completion within a reasonable time, which shall in no event be later than ten (10) Days after
receipt of such written notice.
SECTION 16 CITY'S RIGHTS AND REMEDIES.
16.1 Remedies Upon Default.
If Contractor fails to cure any default of this Construction Contract within the time period set forth
above in Section 15, then City may pursue any remedies available under law or equity, including,
without limitation, the following:
16.1.1 Delete Certain Services.
City may, without terminating the Construction Contract, delete certain portions of the Work,
reserving to itself all rights to Losses related thereto.
16.1.2 Perform and Withhold.
City may, without terminating the Construction Contract, engage others to perform the Work or
portion of the Work that has not been adequately performed by Contractor and withhold the cost
thereof to City from future payments to Contractor, reserving to itself all rights to Losses related
thereto.
16.1.3 Suspend The Construction Contract.
City may, without terminating the Construction Contract and reserving to itself all rights to Losses
related thereto, suspend all or any portion of this Construction Contract for as long a period of
time as City determines, in its sole discretion, appropriate, in which event City shall have no
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obligation to adjust the Contract Sum or Contract Time, and shall have no liability to Contractor
for damages if City directs Contractor to resume Work.
16.1.4 Terminate the Construction Contract for Default.
City shall have the right to terminate this Construction Contract, in whole or in part, upon the
failure of Contractor to promptly cure any default as required by Section 15. City’s election to
terminate the Construction Contract for default shall be communicated by giving Contractor a
written notice of termination in the manner specified for the giving of notices in the Construction
Contract. Any notice of termination given to Contractor by City shall be effective immediately,
unless otherwise provided therein.
16.1.5 Invoke the Performance Bond.
City may, with or without terminating the Construction Contract and reserving to itself all rights to
Losses related thereto, exercise its rights under the Performance Bond.
16.1.6 Additional Provisions.
All of City’s rights and remedies under this Construction Contract are cumulative, and shall be in
addition to those rights and remedies available in law or in equity. Designation in the Contract
Documents of certain breaches as material shall not waive the City’s authority to designate other
breaches as material nor limit City’s right to terminate the Construction Contract, or prevent the
City from terminating the Agreement for breaches that are not material. City’s determination of
whether there has been noncompliance with the Construction Contract so as to warrant exercise
by City of its rights and remedies for default under the Construction Contract, shall be binding on
all parties. No termination or action taken by City after such termination shall prejudice any other
rights or remedies of City provided by law or equity or by the Contract Documents upon such
termination; and City may proceed against Contractor to recover all liquidated damages and
Losses suffered by City.
16.2 Delays by Sureties.
Without limiting to any of City’s other rights or remedies, City has the right to suspend the
performance of the Work by Contractor’s sureties in the event of any of the following:
(i) The sureties’ failure to begin Work within a reasonable time in such manner as to insure
full compliance with the Construction Contract within the Contract Time;
(ii) The sureties’ abandonment of the Work;
(iii) If at any time City is of the opinion the sureties’ Work is unnecessarily or unreasonably
delaying the Work;
(iv) The sureties’ violation of any terms of the Construction Contract;
(v) The sureties’ failure to perform according to the Contract Documents; or
(vi) The sureties’ failure to follow City’s instructions for completion of the Work within the
Contract Time.
16.3 Damages to City.
16.3.1 For Contractor's Default.
City will be entitled to recovery of all Losses under law or equity in the event of
Contractor’s default under the Contract Documents.
16.3.2 Compensation for Losses.
In the event that City's Losses arise from Contractor’s default under the Contract Documents, City
shall be entitled to withhold monies otherwise payable to Contractor until Final Completion of the
Project. If City incurs Losses due to Contractor’s default, then the amount of Losses shall be
deducted from the amounts withheld. Should the amount withheld exceed the amount deducted,
the balance will be paid to Contractor or its designee upon Final Completion of the Project. If the
Losses incurred by City exceed the amount withheld, Contractor shall be liable to City for the
difference and shall promptly remit same to City.
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16.4 Suspension by City for Convenience.
City may, at any time and from time to time, without cause, order Contractor, in writing, to
suspend, delay, or interrupt the Work in whole or in part for such period of time, up to an
aggregate of fifty percent (50%) of the Contract Time. The order shall be specifically identified as
a Suspension Order by City. Upon receipt of a Suspension Order, Contractor shall, at City’s
expense, comply with the order and take all reasonable steps to minimize costs allocable to the
Work covered by the Suspension Order. During the Suspension or extension of the Suspension, if
any, City shall either cancel the Suspension Order or, by Change Order, delete the Work covered
by the Suspension Order. If a Suspension Order is canceled or expires, Contractor shall resume
and continue with the Work. A Change Order will be issued to cover any adjustments of the
Contract Sum or the Contract Time necessarily caused by such suspension. A Suspension Order
shall not be the exclusive method for City to stop the Work.
16.5 Termination Without Cause.
City may, at its sole discretion and without cause, terminate this Construction Contract in part or
in whole by giving thirty (30) Days written notice to Contractor. The compensation allowed under
this Paragraph 16.5 shall be the Contractor’s sole and exclusive compensation for such
termination and Contractor waives any claim for other compensation or Losses, including, but not
limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential,
direct, indirect or incidental damages of any kind resulting from termination without cause.
16.5.1 Compensation.
Following such termination and within forty-five (45) Days after receipt of a billing from
Contractor seeking payment of sums authorized by this Paragraph 16.5, City shall pay the
following to Contractor as Contractor’s sole compensation for performance of the Work :
.1 For Work Performed. The amount of the Contract Sum allocable to the portion
of the Work properly performed by Contractor as of the date of termination,
less sums previously paid to Contractor.
.2 For Close-out Costs. Reasonable costs of Contractor and its Subcontractors and
Sub-subcontractors for:
(i) Demobilizing and
(ii) Administering the close-out of its participation in the Project (including,
without limitation, all billing and accounting functions, not including
attorney or expert fees) for a period of no longer than thirty (30) Days
after receipt of the notice of termination.
.3 For Fabricated Items. Previously unpaid cost of any items delivered to the
Project Site which were fabricated for subsequent incorporation in the Work.
16.5.2 Subcontractors.
Contractor shall include provisions in all of its subcontracts, purchase orders and other contracts
permitting termination for convenience by Contractor on terms that are consistent with this
Construction Contract and that afford no greater rights of recovery against Contractor than are
afforded to Contractor against City under this Section.
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16.6 Contractor’s Duties Upon Termination.
Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless the
notice directs otherwise, do the following:
(i) Immediately discontinue the Work to the extent specified in the notice;
(ii) Place no further orders or subcontracts for materials, equipment, services or facilities,
except as may be necessary for completion of such portion of the Work that is not
discontinued;
(iii) Provide to City a description, in writing no later than fifteen (15) days after receipt of the
notice of termination, of all subcontracts, purchase orders and contracts that are
outstanding, including, without limitation, the terms of the original price, any changes,
payments, balance owing, the status of the portion of the Work covered and a copy of
the subcontract, purchase order or contract and any written changes, amendments or
modifications thereto, together with such other information as City may determine
necessary in order to decide whether to accept assignment of or request Contractor to
terminate the subcontract, purchase order or contract;
(iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions
thereof, that City elects to accept by assignment and cancel, on the most favorable terms
reasonably possible, all subcontracts, purchase orders or contracts, or portions thereof,
that City does not elect to accept by assignment; and
(v) Thereafter do only such Work as may be necessary to preserve and protect Work already
in progress and to protect materials, plants, and equipment on the Project Site or in
transit thereto.
SECTION 17 CONTRACTOR'S RIGHTS AND REMEDIES.
17.1 Contractor’s Remedies.
Contractor may terminate this Construction Contract only upon the occurrence of one of the
following:
17.1.1 For Work Stoppage.
The Work is stopped for sixty (60) consecutive Days, through no act or fault of Contractor, any
Subcontractor, or any employee or agent of Contractor or any Subcontractor, due to issuance of
an order of a court or other public authority other than City having jurisdiction or due to an act of
government, such as a declaration of a national emergency making material unavailable. This
provision shall not apply to any work stoppage resulting from the City’s issuance of a suspension
notice issued either for cause or for convenience.
17.1.2 For City's Non-Payment.
If City does not make pay Contractor undisputed sums within ninety (90) Days after receipt of
notice from Contractor, Contractor may terminate the Construction Contract (30) days following a
second notice to City of Contractor’s intention to terminate the Construction Contract.
17.2 Damages to Contractor.
In the event of termination for cause by Contractor, City shall pay Contractor the sums provided
for in Paragraph 16.5.1 above. Contractor agrees to accept such sums as its sole and exclusive
compensation and agrees to waive any claim for other compensation or Losses, including, but not
limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential,
direct, indirect and incidental damages, of any kind.
SECTION 18 ACCOUNTING RECORDS.
18.1 Financial Management and City Access.
Contractor shall keep full and detailed accounts and exercise such controls as may be necessary
for proper financial management under this Construction Contract in accordance with generally
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accepted accounting principles and practices. City and City's accountants during normal business
hours, may inspect, audit and copy Contractor's records, books, estimates, take-offs, cost reports,
ledgers, schedules, correspondence, instructions, drawings, receipts, subcontracts, purchase
orders, vouchers, memoranda and other data relating to this Project. Contractor shall retain these
documents for a period of three (3) years after the later of (i) final payment or (ii) final resolution
of all Contract Disputes and other disputes, or (iii) for such longer period as may be required by
law.
18.2 Compliance with City Requests.
Contractor's compliance with any request by City pursuant to this Section 18 shall be a condition
precedent to filing or maintenance of any legal action or proceeding by Contractor against City
and to Contractor's right to receive further payments under the Contract Documents. City many
enforce Contractor’s obligation to provide access to City of its business and other records referred
to in Section 18.1 for inspection or copying by issuance of a writ or a provisional or permanent
mandatory injunction by a court of competent jurisdiction based on affidavits submitted to such
court, without the necessity of oral testimony.
SECTION 19 INDEPENDENT PARTIES.
Each party is acting in its independent capacity and not as agents, employees, partners, or joint ventures’
of the other party. City, its officers or employees shall have no control over the conduct of Contractor or
its respective agents, employees, subconsultants, or subcontractors, except as herein set forth.
SECTION 20 NUISANCE.
Contractor shall not maintain, commit, nor permit the maintenance or commission of any nuisance in
connection in the performance of services under this Construction Contract.
SECTION 21 PERMITS AND LICENSES.
Except as otherwise provided in the Special Provisions and Technical Specifications, The Contractor shall
provide, procure and pay for all licenses, permits, and fees, required by the City or other government
jurisdictions or agencies necessary to carry out and complete the Work. Payment of all costs and expenses
for such licenses, permits, and fees shall be included in one or more Bid items. No other compensation
shall be paid to the Contractor for these items or for delays caused by non-City inspectors or conditions set
forth in the licenses or permits issued by other agencies.
SECTION 22 WAIVER.
A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be
deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition
contained herein, whether of the same or a different character.
SECTION 23 GOVERNING LAW.
This Construction Contract shall be construed in accordance with and governed by the laws of the State of
California.
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SECTION 24 COMPLETE AGREEMENT.
This Agreement represents the entire and integrated agreement between the parties and supersedes all
prior negotiations, representations, and contracts, either written or oral. This Agreement may be amended
only by a written instrument, which is signed by the parties.
SECTION 25 SURVIVAL OF CONTRACT.
The provisions of the Construction Contract which by their nature survive termination of the Construction
Contract or Final Completion, including, without limitation, all warranties, indemnities, payment
obligations, and City’s right to audit Contractor’s books and records, shall remain in full force and effect
after Final Completion or any termination of the Construction Contract.
SECTION 26 PREVAILING WAGES.
This Project is not subject to prevailing wages. The Contractor is not required to pay prevailing wages in
the performance and implementation of the Project, because the City, pursuant to its authority as a
chartered city, has adopted Resolution No. 5981 exempting the City from prevailing wages. The City
invokes the exemption from the state prevailing wage requirement for this Project and declares that the
Project is funded one hundred percent (100%) by the City of Palo Alto.
Or
The Contractor is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the
California Code of Regulations and Section 16000 et seq. and Section 1773.1 of the California Labor Code.
Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has
obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work
in this locality for each craft, classification, or type of worker needed to execute the contract for this
Project from the Director of the Department of Industrial Relations. Copies of these rates may be obtained
at cost at the Purchasing office of the City of Palo Alto. Contractor shall provide a copy of prevailing wage
rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum.
Contractor shall comply with the provisions of Sections 1775, 1776, 1777.5, 1810, and 1813 of the Labor
Code.
SECTION 27 NON APPROPRIATION.
This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto
Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the
event that the City does not appropriate funds for the following fiscal year for this event, or (b) at any time
within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds
for this Construction Contract are no longer available. This section shall take precedence in the event of a
conflict with any other covenant, term, condition, or provision of this Agreement.
SECTION 28 AUTHORITY.
The individuals executing this Agreement represent and warrant that they have the legal capacity and
authority to do so on behalf of their respective legal entities.
SECTION 29 ATTORNEY FEES.
Each Party shall bear its own costs, including attorney’s fees through the completion of mediation. If the
claim or dispute is not resolved through mediation and in any dispute described in Paragraph 14.2,
22
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the prevailing party in any action brought to enforce the provision of this Agreement may recover its
reasonable costs and attorney’s fees expended in connection with that action. The prevailing party shall be
entitled to recover an amount equal to the fair market value of legal services provided by attorneys
employed by it as well as any attorney’s’ fees paid to third parties.
SECTION 30 COUNTERPARTS
This Agreement may be signed in multiple counterparts, which shall, when executed by all the parties,
constitute a single binding agreement.
SECTION 31 SEVERABILITY.
In case a provision of this Construction Contract is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not be affected.
IN WITNESS WHEREOF, the parties have caused this Construction Contract to be executed the
date and year first above written.
CITY OF PALO ALTO
____________________________
Purchasing Manager
City Manager
APPROVED AS TO FORM:
___________________________
Senior Asst. City Attorney
APPROVED:
___________________________
Public Works Director
CONTRACTOR
INTERSTATE GRADING & PAVING
By:___________________________
Name:_________________________
Title:________________________
Attachment C - Bid Summary ALMA STREET HSIP PROJECT HSIPL 5100(014)PE 86070 IFB 147323A-REBID
ITEM # BASE BID DESCRIPTION UNITS QUANTITY UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST
1 AC Base Repair TON 600 140.00$ 84,000.00$ 135.00$ 81,000.00$ 123.00$ 73,800.00$ 158.00$ 94,800.00$ 190.00$ 114,000.00$
2 AC Milling, 1.5" SF 95,000 0.40$ 38,000.00$ 0.51$ 48,450.00$ 0.21$ 19,950.00$ 0.40$ 38,000.00$ 0.30$ 28,500.00$
3 Micro Surfacing, Black Aggregate SF 230,000 0.35$ 80,500.00$ 0.41$ 94,300.00$ 0.37$ 85,100.00$ 0.40$ 92,000.00$ 0.40$ 92,000.00$
4 AC Overlay, 1.5" TON 6,200 95.00$ 589,000.00$ 90.00$ 558,000.00$ 97.00$ 601,400.00$ 96.00$ 595,200.00$ 84.00$ 520,800.00$
5 Asphalt Conform LS 1 25,000.00$ 25,000.00$ 6,800.00$ 6,800.00$ 24,500.00$ 24,500.00$ 20,000.00$ 20,000.00$ 40,000.00$ 40,000.00$
6 Crack Sealing LF 37,500 0.50$ 18,750.00$ 0.50$ 18,750.00$ 0.52$ 19,500.00$ 0.50$ 18,750.00$ 0.50$ 18,750.00$
7 New Guard Rail LF 550 150.00$ 82,500.00$ 85.00$ 46,750.00$ 50.00$ 27,500.00$ 75.00$ 41,250.00$ 40.00$ 22,000.00$ 8 Demo Guard Rail LF 240 20.00$ 4,800.00$ 16.00$ 3,840.00$ 15.00$ 3,600.00$ 50.00$ 12,000.00$ 20.00$ 4,800.00$
9 Guard Rail Endcap EA 24 200.00$ 4,800.00$ 275.00$ 6,600.00$ 100.00$ 2,400.00$ 200.00$ 4,800.00$ 50.00$ 1,200.00$
10 Adjust Utility Box EA 40 450.00$ 18,000.00$ 350.00$ 14,000.00$ 350.00$ 14,000.00$ 300.00$ 12,000.00$ 450.00$ 18,000.00$
11 Adjust Manhole EA 40 500.00$ 20,000.00$ 600.00$ 24,000.00$ 550.00$ 22,000.00$ 550.00$ 22,000.00$ 795.00$ 31,800.00$
12 Blue Markers EA 20 25.00$ 500.00$ 26.00$ 520.00$ 25.00$ 500.00$ 30.00$ 600.00$ 40.00$ 800.00$
13 Thermoplastic Striping, Detail 10 LF 22,000 1.00$ 22,000.00$ 0.32$ 7,040.00$ 0.30$ 6,600.00$ 0.32$ 7,040.00$ 0.50$ 11,000.00$
14 Thermoplastic Striping, Detail 23 LF 1,000 2.00$ 2,000.00$ 0.85$ 850.00$ 0.80$ 800.00$ 0.90$ 900.00$ 1.10$ 1,100.00$
15 Thermoplastic Striping, Detail 27B LF 400 2.00$ 800.00$ 0.95$ 380.00$ 0.90$ 360.00$ 1.00$ 400.00$ 2.00$ 800.00$
16 Thermoplastic Striping, Detail 30 LF 2,300 3.00$ 6,900.00$ 1.70$ 3,910.00$ 1.60$ 3,680.00$ 1.60$ 3,680.00$ 2.50$ 5,750.00$
17 Thermoplastic Striping, Detail 33 LF 7,100 3.00$ 21,300.00$ 1.15$ 8,165.00$ 1.10$ 7,810.00$ 1.20$ 8,520.00$ 1.50$ 10,650.00$
18 Thermoplastic Striping, Detail 37B LF 500 4.00$ 2,000.00$ 1.90$ 950.00$ 1.80$ 900.00$ 2.00$ 1,000.00$ 2.50$ 1,250.00$
19 Thermoplastic Striping, Detail 38C LF 2,200 3.00$ 6,600.00$ 0.85$ 1,870.00$ 0.80$ 1,760.00$ 1.00$ 2,200.00$ 1.20$ 2,640.00$
20 Thermoplastic Striping, Detail 40A LF 100 2.00$ 200.00$ 1.00$ 100.00$ 1.00$ 100.00$ 1.00$ 100.00$ 2.00$ 200.00$
21 Thermoplastic Striping, 12" WHITE LF 1,300 4.00$ 5,200.00$ 4.25$ 5,525.00$ 4.00$ 5,200.00$ 4.50$ 5,850.00$ 5.50$ 7,150.00$ 22 Thermoplastic Striping, 4" WHITE LF 7,000 2.00$ 14,000.00$ 0.95$ 6,650.00$ 0.90$ 6,300.00$ 1.00$ 7,000.00$ 1.25$ 8,750.00$
23 Thermoplastic Legends EA 168 35.00$ 5,880.00$ 85.00$ 14,280.00$ 83.00$ 13,944.00$ 90.00$ 15,120.00$ 115.00$ 19,320.00$
24 Type A Curb LF 750 50.00$ 37,500.00$ 45.00$ 33,750.00$ 61.00$ 45,750.00$ 70.00$ 52,500.00$ 45.00$ 33,750.00$
25 New Curb Ramp EA 13 2,000.00$ 26,000.00$ 2,500.00$ 32,500.00$ 2,675.00$ 34,775.00$ 3,000.00$ 39,000.00$ 3,000.00$ 39,000.00$
26 Curb Ramp Upgrade EA 12 350.00$ 4,200.00$ 400.00$ 4,800.00$ 350.00$ 4,200.00$ 400.00$ 4,800.00$ 400.00$ 4,800.00$
27 Concrete Sidewalk SF 1,500 10.00$ 15,000.00$ 10.00$ 15,000.00$ 9.00$ 13,500.00$ 10.00$ 15,000.00$ 10.00$ 15,000.00$
28 Concrete Driveway SF 1,250 10.00$ 12,500.00$ 12.00$ 15,000.00$ 11.00$ 13,750.00$ 12.00$ 15,000.00$ 12.00$ 15,000.00$
29 Adjust Catch Basin EA 9 2,500.00$ 22,500.00$ 1,000.00$ 9,000.00$ 650.00$ 5,850.00$ 1,000.00$ 9,000.00$ 1,000.00$ 9,000.00$
30 Inert Recycling TON 6,200 2.00$ 12,400.00$ 1.00$ 6,200.00$ 2.00$ 12,400.00$ 4.50$ 27,900.00$ 2.00$ 12,400.00$
31 Intersection Traffic Cameras LS 1 90,000.00$ 90,000.00$ 40,000.00$ 40,000.00$ 59,000.00$ 59,000.00$ 100,000.00$ 100,000.00$ 97,000.00$ 97,000.00$
32 Traffic Control LS 1 100,000.00$ 100,000.00$ 55,000.00$ 55,000.00$ 155,000.00$ 155,000.00$ 150,000.00$ 150,000.00$ 125,000.00$ 125,000.00$
33 Submittal Package LS 1 500.00$ 500.00$ 100.00$ 100.00$ 800.00$ 800.00$ 2,000.00$ 2,000.00$ 500.00$ 500.00$
34 Planter Strip/Landscape Conform LS 1 5,000.00$ 5,000.00$ 2,500.00$ 2,500.00$ 12,000.00$ 12,000.00$ 15,000.00$ 15,000.00$ 2,500.00$ 2,500.00$
35 Conform Work at Loma Verde Intersection LS 1 10,000.00$ 10,000.00$ 6,100.00$ 6,100.00$ 12,000.00$ 12,000.00$ 8,500.00$ 8,500.00$ 9,000.00$ 9,000.00$
36 Wedge Cut LF 12,000 2.00$ 24,000.00$ 2.00$ 24,000.00$ 2.00$ 24,000.00$ 1.25$ 15,000.00$ 2.00$ 24,000.00$
37 Advance Traffic Loops EA 6 2,000.00$ 12,000.00$ 1,400.00$ 8,400.00$ 600.00$ 3,600.00$ 1,500.00$ 9,000.00$ 1,300.00$ 7,800.00$
38 Guardrail Material LS 1 10,000.00$ 10,000.00$ 3,200.00$ 3,200.00$ 17,000.00$ 17,000.00$ 20,000.00$ 20,000.00$ 12,000.00$ 12,000.00$
39 Installation of Signs LS 1 5,000.00$ 5,000.00$ 3,100.00$ 3,100.00$ 2,880.00$ 2,880.00$ 3,000.00$ 3,000.00$ 5,000.00$ 5,000.00$
40 Median Curb LF 250 80.00$ 20,000.00$ 43.00$ 10,750.00$ 85.00$ 21,250.00$ 85.00$ 21,250.00$ 90.00$ 22,500.00$
BASE BID TOTAL 1,459,330.00$ 1,222,130.00$ 1,379,459.00$ 1,510,160.00$ 1,395,510.00$
ITEM # ADD ALTERNATE DESCRIPTION UNITS QUANTITY UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST UNIT COST TOTAL COST
1 Additional Cost of RAC Overlay TON 6,200 33.00$ 204,600.00$ 29.00$ 179,800.00$ 30.00$ 186,000.00$ 35.00$ 217,000.00$ 107.00$ 663,400.00$
ADD ALTERNATE TOTAL 204,600.00$ 179,800.00$ 186,000.00$ 217,000.00$ 663,400.00$
GRAND TOTAL 1,663,930.00$ 1,401,930.00$ 1,565,459.00$ 1,727,160.00$ 2,058,910.00$
Base Bid Total 1,511,660.00$ Add Alternate Total 217,000.00$
Grand Total 1,728,660.00$
*Note: There was an addition error in the Base Bid Total for O'Grady Paving, Inc. The improperly reported totals were as follows:
ENGINEER'S ESTIMATE INTERSTATE GRADING AND PAVING, INC. C. F. ARCHIBALD PAVING, INC. O'GRADY PAVING, INC.
GRANITE CONSTRUCTION COMPANY
O'GRADY PAVING, INC. GRANITE CONSTRUCTION COMPANY
ENGINEER'S ESTIMATE INTERSTATE GRADING AND PAVING, INC.
GRANITE CONSTRUCTION COMPANY
ENGINEER'S ESTIMATE INTERSTATE GRADING AND PAVING, INC. C. F. ARCHIBALD PAVING, INC.
C. F. ARCHIBALD PAVING, INC. O'GRADY PAVING, INC.