HomeMy WebLinkAboutStaff Report 3153
City of Palo Alto (ID # 3153)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 1/14/2013
City of Palo Alto Page 1
Summary Title: BAO & Contract for Household Hazardous Waste Station
Improvement Project
Title: Adoption of a Budget Amendment Ordinance in the Amount of
$205,150 to Capital Improvement Program Project RF-070001 and Approval
of Contract with American Asphalt Repair and Resurfacing Co., Inc. in the
Amount Not to Exceed $376,200 for Improvements to the Existing Household
Hazardous Waste Station Located at the Entrance to the Regional Water
Quality Control Plant
From: City Manager
Lead Department: Public Works
Recommendation
Staff recommends that Council:
1. Adopt the attached Budget Amendment Ordinance (BAO) in the amount of
$205,150 for improvements to the Household Hazardous Waste Station
(Attachment A) Project RF-07001;
2. Approve and authorize the City Manager or his designee to execute the
attached contract with American Asphalt Repair and Resurfacing Co., Inc.
(Attachment B) in the amount of $342,000 for improvements to the
Household Hazardous Waste Station, located at 2501 Embarcadero Way,
Palo Alto, CA; and
3. Authorize the City Manager or his designee to negotiate and execute one or
more change orders to the contract with American Asphalt Repair and
City of Palo Alto Page 2
Resurfacing Co., Inc. for related, additional, but unforeseen work which
may develop during the project, the total value of which shall not exceed
$34,200.
Background
Palo Alto’s Household hazardous waste (HHW) program began in 1983 when Palo
Alto became the second jurisdiction in the state to provide collection of
household hazardous wastes to its residents in response to community concerns
about toxic wastes in the environment. The objectives of the HHW program were
to provide a point of contact for educating the public about the safe use, storage,
disposal and alternatives to HHW products, and to help reduce the release of
HHW to storm drains, landfill and the sanitary sewer. In 1986, the Tanner Bill (AB
2948) was passed requiring counties to establish hazardous waste management
plans (Health & Safety Code 25135-25135.9). In 1987, the Greene Bill (SB 477) was
passed requiring each City to either adopt a city hazardous waste management
plan or incorporate the County’s plan into the City’s plan.
HHW Element - In 1989, AB 939 was passed mandating that cities adopt and
submit a HHW Element (HHWE), a document that sets policies, objectives, and
programs for collection of HHW in compliance with state mandates. Palo Alto’s
HHWE (June, 1991) evaluated HHW alternatives and led to the development of a
permanent HHW facility to phase out the monthly collection events that were
taking place during that time. Since Palo Alto’s program predated the Santa Clara
County program, and since Palo Alto had a mature well-run HHW program, Palo
Alto decided to continue its own program instead of joining the Santa Clara
County HHW Program.
In the early 1990’s, the City’s Regional Water Quality Control Plant (RWQCP)
became a permitted permanent HHW collection facility, focusing on the collection
and proper disposal of target wastes that directly affected the waste water
effluent such as photo chemicals, mercury wastes, certain types of pesticides and
more recently pharmaceutical wastes. In 2008, the RWQCP upgraded its
hazardous wastes storage structures by adding a new hazardous waste storage
locker (and related improvements) at the entrance to the RWQCP. This new
City of Palo Alto Page 3
storage locker allows the RWQCP to store both plant generated hazardous wastes
as well as HHW collected through the permanent facility permit.
In December 2011 Council approved the closure of the City’s Recycling Center
(RC) effective February 2012. Staff had originally intended to combine a new RC
with the existing HHW Station at the Plant. Materials previously accepted at the
RC included HHW materials which are now being accepted by the HHW program.
To mitigate the impact of the RC closure and to improve the availability of the
HHW program to residents, staff needs to augment the HHW Station by adding
additional storage, consolidating various current collection points, and improving
stormwater protection and safety. The additional storage capacity allows the
HHW Station to be open more frequently. Staff contracted with Siegfried
Engineering to complete the design for these HHW Station improvements.
Discussion
The goal of improving the City’s existing HHW station is to add storage capacity so
that the facility can be open to residents more often as well as to be able to store
additional wastes. Residents are now allowed to drop-off motor oil, antifreeze,
fluorescent lamps, household/automotive batteries, and cooking oil at the HHW
Station for proper disposal. By making it more convenient for residents to drop-
off their HHW, the City hopes to increase the participation rate and reduce the
amount of illegally disposed HHW.
Currently, the City holds HHW drop-off events twice per month. Storage capacity
is measured by the number of vehicle loads that the facility can accommodate
before the accumulated HHW must be off-loaded. The station only has enough
storage capacity for approximately 40 vehicles to drop-off HHW. After the
improvements are made the HHW Station is anticipated to have enough storage
space to accept over 200 vehicles worth of HHW enabling the station to be open
weekly. The additional weekday car trips will not impact peak hour traffic.
Improvements include adding one, new flammables shed, a new asphalt area to
be used for temporary roll-off bins (for paint storage), two new materials cabinets
(to store good household products for residents to take and use) and a new
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storage container for supplies. These improvements will allow the station to be
open more frequently and increase participation by residents and reduce the
amount of improper disposal of household wastes. New concrete, canopy
footings and security fencing will also be constructed.
It is expected that the improvements to the existing HHW station will result in:
better overall efficiencies; improved convenience to residents and small
businesses; cost offsets to the HHW program because of staffing, storage and
shipping improvements (i.e. will not need to ship partially filled containers); and
by increasing safety and operational performance at the existing HHW station.
In 2007, capital project RF-07001 was budgeted for the relocation of facilities
located on the landfill footprint. These facilities included the City’s recycling
center, the landfill office, scalehouse and scale. Included in this scope the
relocation of the RC at the RWQCP adjacent to an improved HHW station. With
the closure of the recycling center the funding was removed from the project and
the HHW Station improvements were reduced in scope and size.
In 2011 the City was awarded a $150,000 grant from the California Department of
Resources Recycling and Recovery (CalRecycle). The grant is to assist the City’s
Household Hazardous Waste Program implement improvements to the City’s
existing HHW collection station and reimbursement must be requested no later
than April 15, 2013. The request for the BAO will fund these improvements with a
reimbursement of $150,000 in April, 2013 when construction is substantially
completed.
Bid Process
On December 5, 2012, a notice inviting formal bids (IFB) for the Improvements to
the Household Hazardous Waste Station Project was posted by City Hall, and a
total of 46 bid packages were sent out. Bids were received from three (3)
contractors on December 18, 2012.
City of Palo Alto Page 5
Bid Name/Number Household Hazardous Waste Station
Improvement Project /IFB #147362
Proposed Length of Project 90 calendar days
Number of Bid Packages
Transmitted 46
Total Days to Respond to
Proposal 14
Pre-bid Meeting No
Number of Proposals
Received: 3
Bid Price Range $342,000 to $437,900 (base bid)
Staff has reviewed all submitted bids. Base bid prices ranged from a low of
$342,000 to a high $437,900, 44.2% to 84.6% above the engineer’s cost estimate
of $237,186. Selection of a contractor is based on the lowest base bid. The
lowest base bid totaling $342,000 was submitted by American Asphalt Repair and
Resurfacing Co., Inc. Work includes mobilization/demobilization; site preparation;
installation of utilities, lighting, concrete, asphalt, fencing and gates; installation
of sheds; and the installation of canopy footings. Due to the high cost Add
Alternate A01 (above ground canopy structure work) was not selected to be done
as part of this contract. Add Alternative A01 work included the installation of
columns, beams, roof, lighting, fire sprinklers, piping, gutters, downspouts,
bubblers, fittings, valves, signage, paint, stripping and appurtenances. The above
ground canopy structure work will be done as a separate project. A 10 percent
contingency in the amount of $34,200 is requested for related, additional, but
unforeseen work which may develop during the project.
Resource Impact
Staff recommends adoption of a BAO in the amount of $205,150 per below
CIP Budget RF-07001 $ 620,818
Actual & Commitments to date ($433,127)
Available Budget $ 187,691
City of Palo Alto Page 6
Construction Contract $ 342,000
Contingency $ 34,200
Building Permit fee $ 5,711
Public Art $ 3,530
Tree work (City crews) $ 2,400
Sprinklers/electrical gate, misc. $ 5,000
Total Construction Costs $ 392,841
BAO needed $ 205,150
CalRecycle Grant Reimbursement ($150,000)
Refuse Fund Reallocation $55,150
The BAO will be funded from the Refuse Fund Reserve with $150,000
reimbursement back to the reserve from the CalRecycle grant once received, and
a reallocation of $55,150 from non-salary expense in the Refuse Fund operating
budget.
Policy Implications
This project is in conformance with the City’s policies and goals and does not
represent any changes to existing City policies.
Environmental Review
This work is exempt from the California Environmental Quality Act (CEQA) under
Class 1 categorical exemptions Article 19, Section 15301 and has received a Notice
of CEQA exemption from the City’s Planning Department. This work involves
improvement and maintenance of existing facilities.
Attachments:
City of Palo Alto Page 7
Attachment A - Budget Amendment Ordinance (DOC)
Attachment B - Contract C12147362 (DOC)
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 $205,150 TO CAPITAL
IMPROVEMENT PROGRAM PROJECT NUMBER RF-07001,
RELOCATION OF LANDFILL FACILITIES, FOR HOUSEHOLD
HAZARDOUS WASTE STATION IMPROVEMENTS
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 years 2008 and 2009, the Council
appropriated a total of $1,500,000 for CIP project RF-07001,
Relocation of Landfill Facilities, to relocate the existing
recycling drop-off center, tollbooth, scale, and
administrative trailer at the landfill in order to begin
landfill closure; and
C. The scope of CIP RF-07001 is now modified to add
storage capacity and upgrade the existing household hazardous
waste (HHW) station located at the entrance to the Regional
Water Quality Control Plant (RWQCP). The original scope of
CIP RF-07001 was to design and construct a new Recycling
Center that had been located on the landfill in order to begin
landfill closure. A combined Recycling Center/HHW Station was
meant to be located at the RWQCP. However, due to budgetary
constraints, it was decided to not construct the Recycling
Center portion of the project, leaving only the HHW station
work within the project. Accordingly, in fiscal year 2012, a
mid-year adjustment was made to reduce the budget for CIP RF-
07001 by $879,473; and
D. Following a formal bid process, American Asphalt
Repair and Resurfacing Co., Inc. was selected to perform work
for improvements to the HHW station. The contract amount is
$342,000. An additional amount of $34,200 is needed to cover
contingency for installing the canopy footings and for any
unforeseen work; and
E. Additional amounts of $5,711 for building permit
fees, $3,530 for public art, $5,000 for sprinkler and
electrical costs, and $2,400 for tree work are needed for the
improvements to the HHW station; and
F. The current available appropriation balance of
$187,691 for CIP RF-07001 is not sufficient to cover the costs
of the improvements to the HHW station, and an additional
appropriation of $205,150 is needed to complete the project;
and
G. The total additional appropriation of $205,150 for
the project will be funded by a grant reimbursement of
$150,000 from the California Department of Resources Recycling
and Recovery, and by a reallocation of $55,150 in non-salary
expenses from the Refuse Fund operating budget.
H. City Council authorization is needed to amend the
2013 budget as hereinafter set forth.
SECTION 2. The sum of Two Hundred Five Thousand One
Hundred Fifty Dollars ($205,150) is hereby appropriated to CIP
Project RF-07001, Relocation of Landfill Facilities, for
improvements to the Household Hazardous Waste Station.
SECTION 3. The Refuse Fund will be reimbursed by grant
funding from the California Department of Resources Recycling
and Recovery in the amount of One Hundred Fifty Thousand
Dollars ($150,000).
SECTION 4. The sum of Fifty-Five Thousand One Hundred
Fifty Dollars ($55,150) is hereby reallocated from the Refuse
Fund operating budget to CIP Project RF-07001.
SECTION 5. The transactions above will have no net impact
on the balance of the Refuse Fund Rate Stabilization Reserve.
SECTION 6. As specified in Section 2.28.080(a) of the
Palo Alto Municipal Code, a two-thirds vote of the City
Council is required to adopt this ordinance.
SECTION 7. As provided in Section 2.04.330 of the Palo
Alto Municipal Code, this ordinance shall become effective
upon adoption.
SECTION 8. Work related to the improvements to the HHW
Station is exempt from the California Environmental Quality
Act (CEQA) under Class 1 categorical exemptions Article 19,
Section 15301 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. May 1, 2012
CONSTRUCTION CONTRACT
CONSTRUCTION CONTRACT
Contract No. C12147362
City of Palo Alto
and
American Aspahlt Repair and Resurfacing Co., Inc.
PROJECT
Improvements to the Household Hazardous Waste Station
- Palo Alto Regional Water Quality Control Plant,
Invitation for Bids (IFB) No. 147362
Invitation for Bid (IFB) Package 2 Rev. May 1, 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 ………………………………………………………………………………….............................. 6
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 ………………………………………………………………………………………………………8
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. May 1, 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 .............................................................................. 13
14.2.1 Non-Contract Disputes …………………………………………………………………………………….13
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 ……………………………………………………………………………………………………. 14
14.4 Contract Dispute Resolution Process .............................................................. …… 14
14.4.1 Direct Negotiation…………………………………………………………………………………….14
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 ................................................................................. 17
16.1 Remedies Upon Default ...................................................................................... 17
16.1.1 Delete Certain Services …………………………………………………………...........................17
16.1.2 Perform and Withhold ……………………………………………………………………………. 17
16.1.3 Suspend The Construction Contract ………………………………………………………….17
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 .............................................................................................. 18
16.3 Damages to City ................................................................................................. 18
16.3.1 For Contractor's Default …………………………………………………………………………..18
16.3.2 Compensation for Losses ………………………………………………………………………….18
16.5 Suspension by City for Convenience .................................................................... 18
16.6 Termination Without Cause ................................................................................ 18
16.6.1 Compensation ………………………………………………………………………………………….18
16.6.2 Subcontractors …………………………………………………………………………………………19
16.7 Contractor’s Duties Upon Termination ................................................................ 19
Invitation for Bid (IFB) Package 4 Rev. May 1, 2012
CONSTRUCTION CONTRACT
SECTION 17. CONTRACTOR'S RIGHTS AND REMEDIES .................................................................. 19
17.1 Contractor’s Remedies ........................................................................................ 19
17.1.1 For Work Stoppage …………………………………………………………………………………..20
17.1.2 For City's Non-Payment …………………………………………………………………………… 20
17.2 Damages to Contractor ....................................................................................... 20
SECTION 18. ACCOUNTING RECORDS .......................................................................................... 20
18.1 Financial Management and City Access ......................................................... ……. 20
18.2 Compliance with City Requests ....................................................................... …. 20
SECTION 19. INDEPENDENT PARTIES ........................................................................................... 20
SECTION 20. NUISANCE ............................................................................................................... 20
SECTION 21. PERMITS AND LICENSES........................................................................................... 21
SECTION 22. WAIVER .................................................................................................................. 21
SECTION 23. GOVERNING LAW .................................................................................................... 21
SECTION 24. COMPLETE AGREEMENT .......................................................................................... 21
SECTION 25. SURVIVAL OF CONTRACT ......................................................................................... 21
SECTION 26. PREVAILING WAGES ................................................................................................ 21
SECTION 27. NON APPROPRIATION ............................................................................................. 22
SECTION 28. GOVERNMENTAL POWERS ...................................................................................... 22
SECTION 29. ATTORNEY FEES ...................................................................................................... 22
SECTION 30. COUNTERPARTS ...................................................................................................... 22
SECTION 31. SEVERABILITY .......................................................................................................... 22
Invitation for Bid (IFB) Package 5 Rev. May 1, 2012
CONSTRUCTION CONTRACT
CONSTRUCTION CONTRACT
THIS CONSTRUCTION CONTRACT entered into on Tbd (“Execution Date”) by and between the CITY OF PALO
ALTO, a California chartered municipal corporation ("City"), and AMERICAN ASPHALT REPAIR AND
RESURFACING CO., 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 corporation duly organized and in good standing in the State of California,
Contractor’s License Number 439591. 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 December 5, 2012, City issued an Invitation for Bids (IFB) to contractors for the Improvements
To The Household Hazardous Waste Station (“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 Improvements to the Household Hazardous Waste Station
("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
Invitation for Bid (IFB) Package 6 Rev. May 1, 2012
CONSTRUCTION CONTRACT
2) Field Change Orders
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.
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
Invitation for Bid (IFB) Package 7 Rev. May 1, 2012
CONSTRUCTION CONTRACT
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 90 calendar days ( ) 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. May 1, 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.
7.1 Contract Sum.
Contractor shall be compensated for satisfactory completion of the Work in compliance with the
Contract Documents the Contract Sum of Three Hundred Forty Two Thousand Dollars ($342,000).
[This amount includes the Base Bid and Add Alternates .]
/ /
/ /
Invitation for Bid (IFB) Package 9 Rev. May 1, 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. May 1, 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. May 1, 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: John Montenero
Or
Invitation for Bid (IFB) Package 12 Rev. May 1, 2012
CONSTRUCTION CONTRACT
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:
City Of Palo Alto
Attn: Chuck Muir
P.O. Box 10250
Palo Alto, Ca 94303
(650) 496-6980
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.
Invitation for Bid (IFB) Package 13 Rev. May 1, 2012
CONSTRUCTION CONTRACT
14.2 Resolution of Other Disputes.
14.2.1 Non-Contract Disputes.
Contract Disputes shall not include any of the following:
(i) Penalties or forfeitures prescribed by statute or regulation imposed by a
governmental agency;
(ii) Third party tort claims for personal injury, property damage or death relating to
any Work performed by Contractor or its Subcontractors or Sub-subcontractors
of any tier;
(iii) False claims liability under California Government Code Section 12650, et. seq.;
(iv) Defects in the Work first discovered by City after Final Payment by City to
Contractor;
(v) Stop notices; or
(vi) The right of City to specific performance or injunctive relief to compel
performance of any provision of the Contract Documents.
14.2.2 Litigation, City Election.
Matters that do not constitute Contract Disputes shall be resolved by way of an action
filed in the Superior Court of the State of California, County of Santa Clara, and shall not
be subject to the Contract Dispute Resolution Process. However, the City reserves the
right, in its sole and absolute discretion, to treat such disputes as Contract Disputes.
Upon written notice by City of its election as provided in the preceding sentence, such
dispute shall be submitted by the parties and finally decided pursuant to the Contract
Dispute Resolution Process in the manner as required for Contract Disputes, including,
without limitation, City’s right under Paragraph 14.4.2 to defer resolution and final
determination until after Final Completion of the Work.
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.
Invitation for Bid (IFB) Package 14 Rev. May 1, 2012
CONSTRUCTION CONTRACT
14.3.2 By City.
City's right to commence the Contract Dispute Resolution Process shall arise at any time
following City's actual discovery of the circumstances giving rise to the Contract Dispute.
City asserts Contract Disputes in response to a Contract Dispute asserted by Contractor.
A Statement of Contract Dispute submitted by City shall state the events or
circumstances giving rise to the Contract Dispute, the dates of their occurrence and the
damages or other relief claimed by City as a result of such events.
14.4 Contract Dispute Resolution Process.
The parties shall utilize each of the following steps in the Contract Dispute Resolution
Process in the sequence they appear below. Each party shall participate fully and in good
faith in each step in the Contract Dispute Resolution Process, and good faith effort shall
be a condition precedent to the right of each party to proceed to the next step in the
process.
14.4.1 Direct Negotiations.
Designated representatives of City and Contractor shall meet as soon as possible (but not
later than ten (10) Days after receipt of the Statement of Contract Dispute) in a good
faith effort to negotiate a resolution to the Contract Dispute. Each party shall be
represented in such negotiations by an authorized representative with full knowledge of
the details of the Claims or defenses being asserted by such party in the negotiations,
and with full authority to resolve such Contract Dispute then and there, subject only to
City’s obligation to obtain administrative and/or City Council approval of any agreed
settlement or resolution. If the Contract Dispute involves the assertion of a right or claim
by a Subcontractor or Sub-subcontractor, of any tier, against Contractor that is in turn
being asserted by Contractor against City (“Pass-Through Claim”), then the Subcontractor
or Sub-Subcontractor shall also have a
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.
Invitation for Bid (IFB) Package 15 Rev. May 1, 2012
CONSTRUCTION CONTRACT
.1 Qualifications of Mediator. The parties shall endeavor to select a mediator who
is a retired judge or an attorney with at least five (5) years of experience in
public works construction contract law and in mediating public works
construction disputes. In addition, the mediator shall have at least twenty (20)
hours of formal training in mediation skills.
.2 Submission to Mediation and Selection of Mediator. The party initiating
mediation of a Contract Dispute shall provide written notice to the other party
of its decision to mediate. In the event the parties are unable to agree upon a
mediator within fifteen (15) Days after the receipt of such written notice, then
the parties shall submit the matter to the American Arbitration Association
(AAA) at its San Francisco Regional Office for selection of a mediator in
accordance with the AAA Construction Industry Mediation Rules.
.3 Mediation Process. The location of the mediation shall be at the offices of City.
The costs of mediation shall be shared equally by both parties. The mediator
shall provide an independent assessment on the merits of the Contract Dispute
and recommendations for resolution. All discussions that occur during the
mediation and all documents prepared solely for the purpose of the mediation
shall be confidential and privileged pursuant to California Evidence Code
Sections 1119 and 1152.
14.4.4 Binding Arbitration.
If the Contract Dispute is not resolved by mediation, then any party may submit the
Contract Dispute for final and binding arbitration pursuant to the provisions of California
Public Contract Code Sections 10240, et seq. The award of the arbitrator therein shall be
final and may be entered as a judgment by any court of competent jurisdiction. Such
arbitration shall be conducted in accordance with the following:
.1 Arbitration Initiation. The arbitration shall be initiated by filing a complaint in
arbitration in accordance with the regulations promulgated pursuant to
California Public Contract Code Section 10240.5.
.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.
Invitation for Bid (IFB) Package 16 Rev. May 1, 2012
CONSTRUCTION CONTRACT
.6 Limitation of Depositions. The parties may conduct discovery in accordance
with the provisions of section 10240.11 of the Public Contract Code; provided,
however, that depositions shall be limited to both of the following:
(i) Ten (10) percipient witnesses for each party and 5 expert witnesses per
party.
Upon a showing of good cause, the arbitrator may increase the number of
permitted depositions. An individual who is both percipient and expert shall, for
purposes of applying the foregoing numerical limitation only, be deemed an
expert. Expert reports shall be exchanged prior to receipt of evidence, in
accordance with the direction of the arbitrator, and expert reports (including
initial and rebuttal reports) not so submitted shall not be admissible as
evidence.
.7 Authority of the Arbitrator. The arbitrator shall have the authority to hear
dispositive motions and issue interim orders and interim or executory awards.
.8 Waiver of Jury Trial. Contractor and City each voluntarily waives its right to a
jury trial with respect to any Contract Dispute that is subject to binding
arbitration in accordance with the provisions of this Paragraph 14.4.4.
Contractor shall include this provision in its contracts with its Subcontractors
who provide any portion of the Work.
14.5 Non-Waiver.
Participation in the Contract Dispute Resolution Process shall not waive, release or compromise
any defense of City, including, without limitation, any defense based on the assertion that the
rights or Claims of Contractor that are the basis of a Contract Dispute were previously waived by
Contractor due to Contractor’s failure to comply with the Contract Documents, including, without
limitation, Contractor’s failure to comply with any time periods for providing notice of requests
for adjustments of the Contract Sum or Contract Time or for submission of Claims or supporting
documentation of Claims.
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.
Invitation for Bid (IFB) Package 17 Rev. May 1, 2012
CONSTRUCTION CONTRACT
SECTION 16 CITY'S RIGHTS AND REMEDIES.
16.1 Remedies Upon Default.
If Contractor fails to cure any default of this Construction Contract within the time period set forth
above in Section 15, then City may pursue any remedies available under law or equity, including,
without limitation, the following:
16.1.1 Delete Certain Services.
City may, without terminating the Construction Contract, delete certain portions of the
Work, reserving to itself all rights to Losses related thereto.
16.1.2 Perform and Withhold.
City may, without terminating the Construction Contract, engage others to perform the
Work or portion of the Work that has not been adequately performed by Contractor and
withhold the cost thereof to City from future payments to Contractor, reserving to itself
all rights to Losses related thereto.
16.1.3 Suspend The Construction Contract.
City may, without terminating the Construction Contract and reserving to itself all rights
to Losses related thereto, suspend all or any portion of this Construction Contract for as
long a period of time as City determines, in its sole discretion, appropriate, in which
event City shall have no obligation to adjust the Contract Sum or Contract Time, and shall
have no liability to Contractor for damages if City directs Contractor to resume Work.
16.1.4 Terminate the Construction Contract for Default.
City shall have the right to terminate this Construction Contract, in whole or in part, upon
the failure of Contractor to promptly cure any default as required by Section 15. City’s
election to terminate the Construction Contract for default shall be communicated by
giving Contractor a written notice of termination in the manner specified for the giving of
notices in the Construction Contract. Any notice of termination given to Contractor by
City shall be effective immediately, unless otherwise provided therein.
16.1.5 Invoke the Performance Bond.
City may, with or without terminating the Construction Contract and reserving to itself all
rights to Losses related thereto, exercise its rights under the Performance Bond.
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.
Invitation for Bid (IFB) Package 18 Rev. May 1, 2012
CONSTRUCTION CONTRACT
16.2 Delays by Sureties.
Without limiting to any of City’s other rights or remedies, City has the right to suspend the
performance of the Work by Contractor’s sureties in the event of any of the following:
(i) The sureties’ failure to begin Work within a reasonable time in such manner as to insure
full compliance with the Construction Contract within the Contract Time;
(ii) The sureties’ abandonment of the Work;
(iii) If at any time City is of the opinion the sureties’ Work is unnecessarily or unreasonably
delaying the Work;
(iv) The sureties’ violation of any terms of the Construction Contract;
(v) The sureties’ failure to perform according to the Contract Documents; or
(vi) The sureties’ failure to follow City’s instructions for completion of the Work within the
Contract Time.
16.3 Damages to City.
16.3.1 For Contractor's Default.
City will be entitled to recovery of all Losses under law or equity in the event of
Contractor’s default under the Contract Documents.
16.3.2 Compensation for Losses.
In the event that City's Losses arise from Contractor’s default under the Contract
Documents, City shall be entitled to withhold monies otherwise payable to Contractor
until Final Completion of the Project. If City incurs Losses due to Contractor’s default,
then the amount of Losses shall be deducted from the amounts withheld. Should the
amount withheld exceed the amount deducted, the balance will be paid to Contractor or
its designee upon Final Completion of the Project. If the Losses incurred by City exceed
the amount withheld, Contractor shall be liable to City for the difference and shall
promptly remit same to City.
16.4 Suspension by City for Convenience.
City may, at any time and from time to time, without cause, order Contractor, in writing, to
suspend, delay, or interrupt the Work in whole or in part for such period of time, up to an
aggregate of fifty percent (50%) of the Contract Time. The order shall be specifically identified as
a Suspension Order by City. Upon receipt of a Suspension Order, Contractor shall, at City’s
expense, comply with the order and take all reasonable steps to minimize costs allocable to the
Work covered by the Suspension Order. During the Suspension or extension of the Suspension, if
any, City shall either cancel the Suspension Order or, by Change Order, delete the Work covered
by the Suspension Order. If a Suspension Order is canceled or expires, Contractor shall resume
and continue with the Work. A Change Order will be issued to cover any adjustments of the
Contract Sum or the Contract Time necessarily caused by such suspension. A Suspension Order
shall not be the exclusive method for City to stop the Work.
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 :
Invitation for Bid (IFB) Package 19 Rev. May 1, 2012
CONSTRUCTION CONTRACT
.1 For Work Performed. The amount of the Contract Sum allocable to the portion
of the Work properly performed by Contractor as of the date of termination,
less sums previously paid to Contractor.
.2 For Close-out Costs. Reasonable costs of Contractor and its Subcontractors and
Sub-subcontractors for:
(i) Demobilizing and
(ii) Administering the close-out of its participation in the Project (including,
without limitation, all billing and accounting functions, not including
attorney or expert fees) for a period of no longer than thirty (30) Days
after receipt of the notice of termination.
.3 For Fabricated Items. Previously unpaid cost of any items delivered to the
Project Site which were fabricated for subsequent incorporation in the Work.
16.5.2 Subcontractors.
Contractor shall include provisions in all of its subcontracts, purchase orders and other
contracts permitting termination for convenience by Contractor on terms that are
consistent with this Construction Contract and that afford no greater rights of recovery
against Contractor than are afforded to Contractor against City under this Section.
16.6 Contractor’s Duties Upon Termination.
Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless the
notice directs otherwise, do the following:
(i) Immediately discontinue the Work to the extent specified in the notice;
(ii) Place no further orders or subcontracts for materials, equipment, services or facilities,
except as may be necessary for completion of such portion of the Work that is not
discontinued;
(iii) Provide to City a description, in writing no later than fifteen (15) days after receipt of the
notice of termination, of all subcontracts, purchase orders and contracts that are
outstanding, including, without limitation, the terms of the original price, any changes,
payments, balance owing, the status of the portion of the Work covered and a copy of
the subcontract, purchase order or contract and any written changes, amendments or
modifications thereto, together with such other information as City may determine
necessary in order to decide whether to accept assignment of or request Contractor to
terminate the subcontract, purchase order or contract;
(iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions
thereof, that City elects to accept by assignment and cancel, on the most favorable terms
reasonably possible, all subcontracts, purchase orders or contracts, or portions thereof,
that City does not elect to accept by assignment; and
(v) Thereafter do only such Work as may be necessary to preserve and protect Work already
in progress and to protect materials, plants, and equipment on the Project Site or in
transit thereto.
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:
Invitation for Bid (IFB) Package 20 Rev. May 1, 2012
CONSTRUCTION CONTRACT
17.1.1 For Work Stoppage.
The Work is stopped for sixty (60) consecutive Days, through no act or fault of Contractor, any
Subcontractor, or any employee or agent of Contractor or any Subcontractor, due to issuance of
an order of a court or other public authority other than City having jurisdiction or due to an act of
government, such as a declaration of a national emergency making material unavailable. This
provision shall not apply to any work stoppage resulting from the City’s issuance of a suspension
notice issued either for cause or for convenience.
17.1.2 For City's Non-Payment.
If City does not make pay Contractor undisputed sums within ninety (90) Days after receipt of
notice from Contractor, Contractor may terminate the Construction Contract (30) days following a
second notice to City of Contractor’s intention to terminate the Construction Contract.
17.2 Damages to Contractor.
In the event of termination for cause by Contractor, City shall pay Contractor the sums provided
for in Paragraph 16.5.1 above. Contractor agrees to accept such sums as its sole and exclusive
compensation and agrees to waive any claim for other compensation or Losses, including, but not
limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential,
direct, indirect and incidental damages, of any kind.
SECTION 18 ACCOUNTING RECORDS.
18.1 Financial Management and City Access.
Contractor shall keep full and detailed accounts and exercise such controls as may be necessary
for proper financial management under this Construction Contract in accordance with generally
accepted accounting principles and practices. City and City's accountants during normal business
hours, may inspect, audit and copy Contractor's records, books, estimates, take-offs, cost reports,
ledgers, schedules, correspondence, instructions, drawings, receipts, subcontracts, purchase
orders, vouchers, memoranda and other data relating to this Project. Contractor shall retain these
documents for a period of three (3) years after the later of (i) final payment or (ii) final resolution
of all Contract Disputes and other disputes, or (iii) for such longer period as may be required by
law.
18.2 Compliance with City Requests.
Contractor's compliance with any request by City pursuant to this Section 18 shall be a condition
precedent to filing or maintenance of any legal action or proceeding by Contractor against City
and to Contractor's right to receive further payments under the Contract Documents. City many
enforce Contractor’s obligation to provide access to City of its business and other records referred
to in Section 18.1 for inspection or copying by issuance of a writ or a provisional or permanent
mandatory injunction by a court of competent jurisdiction based on affidavits submitted to such
court, without the necessity of oral testimony.
SECTION 19 INDEPENDENT PARTIES.
Each party is acting in its independent capacity and not as agents, employees, partners, or joint 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.
Invitation for Bid (IFB) Package 21 Rev. May 1, 2012
CONSTRUCTION CONTRACT
SECTION 21 PERMITS AND LICENSES.
Except as otherwise provided in the Special Provisions and Technical Specifications, The Contractor shall
provide, procure and pay for all licenses, permits, and fees, required by the City or other government
jurisdictions or agencies necessary to carry out and complete the Work. Payment of all costs and expenses
for such licenses, permits, and fees shall be included in one or more Bid items. No other compensation
shall be paid to the Contractor for these items or for delays caused by non-City inspectors or conditions set
forth in the licenses or permits issued by other agencies.
SECTION 22 WAIVER.
A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be
deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition
contained herein, whether of the same or a different character.
SECTION 23 GOVERNING LAW.
This Construction Contract shall be construed in accordance with and governed by the laws of the State of
California.
SECTION 24 COMPLETE AGREEMENT.
This Agreement represents the entire and integrated agreement between the parties and supersedes all
prior negotiations, representations, and contracts, either written or oral. This Agreement may be amended
only by a written instrument, which is signed by the parties.
SECTION 25 SURVIVAL OF CONTRACT.
The provisions of the Construction Contract which by their nature survive termination of the Construction
Contract or Final Completion, including, without limitation, all warranties, indemnities, payment
obligations, and City’s right to audit Contractor’s books and records, shall remain in full force and effect
after Final Completion or any termination of the Construction Contract.
SECTION 26 PREVAILING WAGES.
This Project is not subject to prevailing wages. The Contractor is not required to pay prevailing wages in
the performance and implementation of the Project, because the City, pursuant to its authority as a
chartered city, has adopted Resolution No. 5981 exempting the City from prevailing wages. The City
invokes the exemption from the state prevailing wage requirement for this Project and declares that the
Project is funded one hundred percent (100%) by the City of Palo Alto.
Or
The Contractor is required to pay general prevailing wages as defined in Subchapter 3, Title 8 of the
California Code of Regulations and Section 16000 et seq. and Section 1773.1 of the California Labor Code.
Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the City Council has
obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work
in this locality for each craft, classification, or type of worker needed to execute the contract for this
Project from the Director of the Department of Industrial Relations. Copies of these rates may be obtained
at cost at the Purchasing office of the City of Palo Alto. Contractor shall provide a copy of prevailing wage
rates to any staff or subcontractor hired, and shall pay the adopted prevailing wage rates as a minimum.
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CONSTRUCTION CONTRACT
Contractor shall comply with the provisions of Sections 1775, 1776, 1777.5, 1810, and 1813 of the Labor
Code.
SECTION 27 NON APPROPRIATION.
This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto
Municipal Code. This Agreement will terminate without any penalty (a) at the end of any fiscal year in the
event that the City does not appropriate funds for the following fiscal year for this event, or (b) at any time
within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds
for this Construction Contract are no longer available. This section shall take precedence in the event of a
conflict with any other covenant, term, condition, or provision of this Agreement.
SECTION 28 AUTHORITY.
The individuals executing this Agreement represent and warrant that they have the legal capacity and
authority to do so on behalf of their respective legal entities.
SECTION 29 ATTORNEY FEES.
Each Party shall bear its own costs, including attorney’s fees through the completion of mediation. If the
claim or dispute is not resolved through mediation and in any dispute described in Paragraph 14.2,
the prevailing party in any action brought to enforce the provision of this Agreement may recover its
reasonable costs and attorney’s fees expended in connection with that action. The prevailing party shall be
entitled to recover an amount equal to the fair market value of legal services provided by attorneys
employed by it as well as any attorney’s’ fees paid to third parties.
SECTION 30 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.
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CONSTRUCTION CONTRACT
CITY OF PALO ALTO
____________________________
Purchasing Manager
City Manager
APPROVED AS TO FORM:
___________________________
Senior Asst. City Attorney
APPROVED:
___________________________
Director Public Works
CONTRACTOR
STEVE AGUIRRE
By:___________________________
Name:_________________________
Title:________________________