HomeMy WebLinkAboutStaff Report 3991City of Palo Alto (ID # 3991)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 8/19/2013
City of Palo Alto Page 1
Summary Title: Award of Contract C14149800 for the Cubberley Theater
Design-Build Lighting Dimmer System
Title: Approval of a Contract C14149800 with Musson Theatrical, Inc. in the
Amount of $120,000 for the Design-Build of the Cubberley Theater Lighting
Dimmer System
From: City Manager
Lead Department: Public Works
Recommendation
Staff recommends that Council:
1.Approve and authorize the City Manager or his designee to execute the
attached contract with Musson Theatrical, Inc. (Attachment A) in the
amount of $120,000 for the Cubberley Theater Lighting Dimmer System
Design-Build Project, Capital Improvement Program Project CC-09001; and
2.Authorize the City Manager or his designee to negotiate and execute one or
more change orders to the contract with Musson Theatrical, Inc. for
related, additional but unforeseen work which may develop during the
project, the total value of which shall not exceed $12,000.
Background
The Cubberley Community Theatre is a focal point for community events in Palo
Alto and generates revenue exceeding $120,000 per year. The theatre’s lighting
system is outdated and is in dire need of renovation. The existing lighting control
system at the Cubberley Community Theatre was installed in the early 1980s.
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Since that time, lighting technology has advanced to such a degree that the
current analog system is obsolete and replacement parts are no longer available.
Additionally, the existing dimmer system presents an ongoing nuisance and
routinely experiences electrical failures. These electrical failures cause
unexpected facility closures and abrupt interferences with performing arts events
which result in lost revenue. As the older system is failing, it is now necessary to
improve the theatre lighting system by installing a new,up-to-date digital
dimming or dimming/lighting system. Upgrading to a digital soft-patch dimming
system will bring the theatre’s lighting capabilities in line with modern standards,
thereby attracting additional users, and increasing facility use revenues.
Staff requested proposals from vendors to both design and install this new system
as an alternate project delivery method compared to the standard design-bid-
build process. Council determined by resolution #9347 on June 17, 2013
(Attachment B) that this particular public works project may be solicited and
contracted for using the alternate project delivery method of Design-Build.
Discussion
With Council’s adoption of the attached design-build resolution #9347, staff
advertised the project via a Request for Proposals (RFP) process. The RFP for the
project, consistent with the proposed design-build approach, was advertised with
sufficient information for a specialized vendor to finalize the design, obtain any
necessary permits, and propose a not-to-exceed fee for the total project including
installation. This installation will include rewiring portions of the building (as
necessary) and successfully assimilating the new system into the remaining parts
of the existing lighting control architecture.
Procurement Process
On July 10, 2013, an RFP for the Cubberley Theater Lighting Dimmer Design-Build
Project was posted at City Hall and sent to 13 builder’s exchanges and 5
contractors. The procurement period was 20 days. Proposals were received from
two qualified firms on July 30, 2013, as listed in the Summary of RFP Process
below.
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Summary of RFP Process
RFP Name/Number Cubberley Theater Lighting Dimmer System
Design-Build Project, Capital Improvement
Program Project CC-09001 /RFP # 149800
Proposed Length of Project 21 calendar days
Number of RFPs Mailed to
Firms
5
Number of RFPs Mailed to
Builder’s Exchanges
13
Total Days to Respond to RFP 20
Mandatory Pre-Proposal
Meeting
July 16, 2013 at 10:00 A.M.
Number of Company
Attendees at Pre-Proposal
Meeting
3
Number of Proposals
Received:
2
Proposal Price Range Musson Theatrical, Inc.- $137,500
H. A. Bowen Electric, Inc.- $208,332
Staff reviewed both proposals submitted and recommends that a contract be
awarded to Musson Theatrical, Inc. Its proposal best accomplishes the City’s
needs as requested in the RFP and is also the most economical. Staff further
negotiated the final scope, schedule and total compensation of $120,000 in the
attached contract with Musson Theatrical, Inc. to fit the available CIP budget.
The award of contract is for a design-build turnkey project which includes design,
provision of all parts and equipment, and installation of the dimmer system as
depicted in the RFP. A contract contingency amount of $12,000 (which equals 10
percent of the total contract) is requested for related, additional but unforeseen
work which may develop during the project. Staff also contacted the listed
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references for Musson Theatrical, Inc. and found that they have performed
satisfactorily on past construction projects for other clients.
Timeline
The project was advertised as an RFP shortly after Council’s adoption of the
resolution authorizing procurement using a design-build delivery system. The
dimmer installation is tentatively scheduled to occur between late-September
and mid-October 2013. The installation will be coordinated with the theatre
schedule of events.
Resource Impact
Funds for a design-build contract are included in Capital Improvement Program
Project (CIP) CC-09001, Dimmer Replacement and Lighting System Replacement
at Cubberley Community Theatre.
Policy Implications
This recommendation is consistent with existing City policies, and with Municipal
Code Title 2, section 2.30.300, Public Works Contracts, with respect to alternative
delivery methods.
Environmental Review
This project is categorically exempt from the provisions of the California
Environmental Quality Act (CEQA) under Section 15301 of the CEQA Guidelines as
repair, maintenance and/or minor alteration of existing facilities and no further
environmental review is necessary.
Attachments:
·A -Contract C14149800_Musson_Cubberly Theatre Lighting (PDF)
·B -RESO 9347 (PDF)
City of Palo Alto – C14149800 Page 10 08154\CPA_DB-agmt.doc
CITY OF PALO ALTO CONTRACT NO. C14149800
AGREEMENT BETWEEN THE CITY OF PALO ALTO
AND
MUSSON THEATRICAL, INC.
FOR THE DESIGN-BUILD OF
CUBBERLEY COMMUNITY CENTER – THEATRE LIGHTING
This AGREEMENT is made as of the 19th day of August in the year of 2013, by and between
the following parties, for services in connection with the PROJECT identified below.
CITY: CITY OF PALO ALTO, a charter city and
Municipal corporation of the State of California
250 Hamilton Avenue
Palo Alto, CA 94301
DESIGN-BUILDER: MUSSON THEATRICAL, INC.
890 Walsh Avenue
Santa Clara, CA 95050
PROJECT: DESIGN-BUILD OF CUBBERLEY COMMUNITY CENTER
THEATRE LIGHTING PROJECT
In consideration of the mutual covenants and obligations contained herein, City and
Design-Builder agree as set forth herein.
Article 1
Scope of Work
1.1 Design-Builder shall perform all design and construction services, and provide all
material, equipment, tools and labor, necessary to complete the Work described in and
reasonably inferable from the Contract Documents, as more particularly described in
Exhibit B attached hereto and incorporated herein by this reference.
1.2 Definitions.
1.2.1 Agreement shall mean this Agreement between the City of Palo Alto and Musson
Theatrical, Inc. for the DESIGN-BUILD OF CUBBERLEY COMMUNITY CENTER
THEATRE LIGHTING Project, including the exhibits, which exhibits are specifically
made a part of this Agreement by this reference.
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1.2.2 Application for Payment constitutes a representation by Design-Builder that the design
and/or construction has progressed to the point indicated by the end of the month, that the
quality of the Work covered by the Application for Payment is in accordance with the
Contract Documents and that Design-Builder is entitled to payment in the amount
requested.
1.2.3 Application for Final Payment constitutes a representation by Design-Builder that
Design-Builder has completed all of the Work in conformance with the Contract
Documents and that Design-Builder is entitled to final payment in the amount requested.
The Application for Final Payment shall be submitted in accordance with Section 6.6 of
the General Conditions.
1.2.4 Certificate of Substantial Completion shall mean a certificate prepared and issued by the
City, setting forth: (i) the date of Substantial Completion of the Work or portion thereof,
(ii) the remaining items of Work that have to be completed before final payment, (iii)
provisions (to the extent not already provided in the Contract Documents) establishing
City’s and Design-Builder’s responsibility for the Project’s security, maintenance,
utilities and insurance pending final payment and (iv) an acknowledgment that warranties
commence to run on the date of Substantial Completion, except as may otherwise by
noted in the Certificate of Substantial Completion.
1.2.5 Change Order is a written instrument issued after the execution of this Agreement signed
by the City and Design-Builder stating their agreement upon the scope of the change in
the Work and the adjustment in the Contract Price and/or Contract Time(s), if any.
1.2.6 City shall mean the City of Palo Alto.
1.2.7 City’s Project Criteria shall mean the City’s requirements and objectives for the Project,
including use, space, price, time, site requirements, as well as submittal requirements and
other requirements governing Design-Builder’s performance of the Work. City’s Project
Criteria may include conceptual documents, design criteria, performance requirements
and other Project-specific technical materials and requirements.
1.2.8 City’s Representative shall mean the person designated to be the City’s representative
pursuant to Section 8.1.2 of this Agreement.
1.2.9 City’s Senior Representative shall mean the person designated to be the City’s senior
representative pursuant to Section 8.1.1 of this Agreement.
1.2.10 Construction Documents shall mean documents setting forth in detail the requirements
for construction of the Work, which may consist of drawings, specifications and other
documents and electronic data.
1.2.11 Contract Documents shall mean the documents referred to in Section 1.3 hereof.
1.2.12 Contract Price shall mean the Design-Builder’s Fee plus the Cost of the Work, subject to
the Guaranteed Maximum Price (GMP) and any adjustments made in accordance with
the General Conditions of Contract.
1.2.13 Day(s) shall mean calendar day(s) unless otherwise specifically noted in the Contract
Documents.
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1.2.14 Design-Builder shall mean MUSSON THEATRICAL, INC..
1.2.15 Design-Builder’s Representative shall mean the person designated to be Design-Builder’s
representative pursuant to Section 8.2.2 of this Agreement.
1.2.16 Design-Builder’s Senior Representative shall mean the person designated to be Design-
Builder’s senior representative pursuant to Section 8.2.1 of this Agreement.
1.2.17 Design Consultant is a qualified, licensed design professional who is not an employee of
Design-Builder, but is retained by Design-Builder, or employed or retained by anyone
under contract with Design-Builder, to furnish design services required under the
Contract Documents.
1.2.18 Differing Site Conditions shall mean concealed or latent physical conditions or
subsurface conditions at the Site that (i) materially differ from the conditions indicated in
the Contract Documents or (ii) are of an unusual nature, differing materially from the
conditions ordinarily encountered and generally recognized as inherent in the Work.
1.2.19 Final Completion is the date on which all requirements for the design and construction of
the Project identified under this Agreement are fully satisfied.
1.2.20 General Conditions of Contract shall mean Exhibit A of this Agreement.
1.2.21 GMP or Guaranteed Maximum Price is as defined in Section 6.5 of this Agreement.
1.2.22 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be
hazardous under applicable Legal Requirements, or the handling, storage, remediation, or
disposal of which are regulated by applicable Legal Requirements.
1.2.23 Legal Requirements are all applicable federal, state and local laws, codes, ordinances,
rules, regulations, orders and decrees of any government or quasi-government entity
having jurisdiction over the Project or Site, the practices involved in the Project or Site,
or any Work.
1.2.24 Notice of Completion means and refers to a Notice of Completion pursuant to California
Civil Code §3093.
1.2.25 Parties mean the City of Palo Alto and Musson Theatrical, Inc..
1.2.26 NOT USED.
1.2.27 Project shall mean the improvements for which Design-Builder is to provide services
under this Agreement, including the Design-Build of Cubberley Community Center
Theatre Lighting Dimmer System Project.
1.2.28 Project Schedule shall mean that schedule for performance of the Work prepared by
Design-Builder and approved by the City as set forth in Exhibit C, as such schedule may
be updated from time to time pursuant to Section 2.1.3 of the General Conditions of
Contract.
1.2.29 Site is the land or premises on which the Project is located.
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1.2.30 Subcontractor is any person or entity retained by Design-Builder to perform a portion of
the Work and shall include materialmen and suppliers.
1.2.31 Sub-Subcontractor is any person or entity retained by a Subcontractor to perform any
portion of a Subcontractor’s Work and shall include materialmen and suppliers.
1.2.32 Substantial Completion means the date on which the Work, or an agreed upon portion of
the Work, is sufficiently complete so that City can occupy and use the Project or a
portion thereof for its intended purposes.
1.2.33 Work is comprised of all Design-Builder’s design, construction and other services
required by the Contract Documents, including procuring and furnishing all materials,
equipment, services and labor reasonably inferable from the Contract Documents
necessary to complete the Project.
1.2.34 Work Product is comprised of all writings, reports, drawings, plans, specifications,
calculations, electronic data, and other documents, and copyright interests developed
under this Agreement.
1.3 Contract Documents. The Contract Documents are comprised of the following
documents and everything incorporated by these documents:
1.3.1 All written modifications, amendments and change orders to this Agreement
issued in accordance with the General Conditions of Contract;
1.3.2 This Agreement, including all exhibits and attachments;
1.3.3 The General Conditions of Contract attached as Exhibit A to this Agreement;
1.3.4 Construction Documents prepared and approved in accordance with Section 2.4
of the General Conditions of Contract;
1.3.5 City’s Project Criteria as described in the RFP; and
1.3.6 Request for Proposal RFP 149800.
Article 2
The Parties’ Services and Responsibilities
2.1 Design Services. Design-Builder shall, consistent with applicable state licensing laws,
provide design services, including architectural, engineering and other design
professional services, required by this Agreement. Such design services shall be provided
through qualified, State of California licensed design professionals who are either (i)
employed by Design-Builder, or (ii) procured by Design-Builder from independent
sources. Nothing in this Agreement creates any legal or contractual relationship between
City and any independent design professional. Design-Builder shall have a separate
written agreement with any such persons or entities providing such architectural,
engineering or other design professional services, and shall require such entities to obtain
and maintain professional liability coverage in the amounts set forth in Attachment ”F” of
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the RFP any claims, damages, errors and omissions arising out of the professional
services to be performed by such parties.
2.2 Preliminary Services Design-Builder will assist City in expanding upon the City’s
preliminary design. The Design-Builder shall review and prepare a written evaluation of
the City’s Project Criteria, including recommendations to City for any necessary different
and innovative approaches to the design and construction of the Project. The Parties shall
meet to discuss Design-Builder’s written evaluation of the City’s PER and agree upon
what revisions, if any, should be made to the City’s preliminary design. Any revisions to
the preliminary design that result in additional costs or saved costs, shall be documented
by a change order and executed in accordance with Article 9 of the General Conditions.
2.3 Construction Documents. Design-Builder shall prepare Construction Documents based
on City’s final design, as may be revised in accordance with Section 2.2.1 hereof. The
Construction Documents shall include design criteria, drawings, diagrams, specifications
and all other items necessary to build the Project. The Parties shall meet to discuss the
Construction Documents and agree upon what revisions, if any, should be made. No
revisions shall be made to the Construction Documents without City’s approval. Design-
Builder shall make such agreed-upon revisions. To the extent that changes to the
Construction Documents impose increased costs on Design-Builder, Design-Builder shall
be entitled to a change order pursuant to Article 9 of the General Conditions.
2.4 Proposal. Based on City’s final design, the Construction Documents, as each may be
revised pursuant to Sections 2.2 and 2.3 above, and any other documents upon which the
Parties may agree, Design-Builder shall submit a proposal to City (the “Proposal”), which
shall include the following, unless the Parties mutually agree otherwise:
2.4.1 A proposed Contract Price for the design and construction of the Project, which
price shall be the Design-Builder’s Fee plus the Cost of the Work subject to the
Guaranteed Maximum Price; and
2.4.2 A schedule and date of Substantial Completion of the Project upon which the
Contract Price for the Project is based.
2.5 Review of Proposal. Design-Builder and City shall meet to discuss and review the
Proposal. If City has any comments regarding the Proposal, or finds any inconsistencies
or inaccuracies in the information presented with respect to the City’s final design, it
shall promptly give written notice to Design-Builder of such comments or findings. If
Design-Builder finds the revisions acceptable, Design-Builder shall, upon receipt of
City’s notice, adjust the Proposal. If Design-Builder and the City do not agree on a price
or time of completion, either Party may terminate the Agreement without further costs.
Article 3
Interpretation and Intent
3.1 The Contract Documents will provide for the Design-Builder to complete the Work and
all obligations required by the Contract Documents within the Contract Time(s) for the
Contract Price. The Contract Documents are complementary and shall be interpreted in
harmony so as to avoid conflict, with words and phrases interpreted in a manner
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consistent with construction and design industry standards. In the event of any
inconsistency, conflict, or ambiguity between or among the Contract Documents, the
Contract Documents shall take precedence in the order in which they are listed in Section
1.3 hereof.
3.2 Terms, words and phrases used in the Contract Documents shall have the meanings given
them in this Agreement, if not defined elsewhere in the Contract Documents.
3.3 The documents constituting the Contract Documents as set forth in Section 1.3 hereof,
represent the entire and integrated agreement between City and Design-Builder and
supersedes all prior negotiations, representations or agreements, whether written or oral,
between City and Design-Builder related to the Project or the Work.
Article 4
Ownership of Work Product
4.1 Work Product. All Work Product, including without limitation, all writings, reports,
drawings, plans, specifications, calculations, electronic data, and other documents, and
copyright interests developed under this Agreement shall be and remain the exclusive
property of the City without restriction or limitation upon their use. All copyrights which
arise from creation of the Work pursuant to this Agreement shall be vested in City, and
Design-Builder waives and relinquishes all claims to copyright or other intellectual
property rights in favor of the City. Neither Design-Builder, nor its Subcontractors, nor
its Sub-Subcontractors, if any, shall make any of such materials available to any
individual or organization without the City’s prior written approval.
Article 5
Contract Time
5.1 Date of Commencement. The Work shall commence within five (5) days of Design-
Builder’s receipt of a written notice issued by the City, authorizing Design-Builder to
proceed with the Work or some portion of the Work (“Date of Commencement”), unless
the Parties mutually agree otherwise, in writing.
5.2 Substantial Completion and Final Completion.
5.2.1 Substantial Completion of the entire Project shall be achieved no later than the date
determined pursuant to Section 2.4.2 hereof (“Scheduled Substantial Completion Date”).
5.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work shall
be based upon final negotiated schedule proposed by DESIGN-BUILDER and agreed
upon by CITY.
5.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as
expeditiously as reasonably practicable.
5.2.4 All of the dates set forth in this Article 5 (“Contract Time(s)”) shall be subject to
adjustment in accordance with the General Conditions of Contract.
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5.3 Time is of the Essence. City and Design-Builder mutually agree that time is of the
essence with respect to the dates and times set forth in the Contract Documents.
5.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not
attained by the Scheduled Substantial Completion Date, City will suffer damages which
are difficult to determine and accurately specify. If Substantial Completion is not
attained by fourteen (14) days after the Scheduled Substantial Completion Date (the “LD
Date”), Design-Builder shall pay City five thousand dollars ($5,000.00) as liquidated
damages and not as a penalty for each day that Substantial Completion extends beyond
the LD Date. The liquidated damages provided herein shall be in lieu of all liability for
any and all extra costs, losses, expenses, claims, penalties and any other damages,
whether special or consequential, and of whatsoever nature incurred by City which are
occasioned by any delay in achieving Substantial Completion.
Article 6
Contract Price
6.1 Contract Price
6.1.1 City shall pay Design-Builder in accordance with Article 6 of the General Conditions of
Contract, a Contract Price which is equal to Design-Builder’s Fee (as defined in Section 6.2
hereof), plus the Cost of the Work (as defined in Section 6.3 hereof), subject to the GMP
established in Section 6.5 hereof and any adjustments made in accordance with the General
Conditions of Contract.
6.2 Design-Builder’s Fee
6.2.1 Design-Builder’s Fee shall be: One Hundred Twenty Thousand Dollars ($120,000.00).
6.3 Cost of the Work. The term ‘Cost of the Work’ shall mean costs reasonably incurred by
Design-Builder in the proper performance of the Work for the procurement, furnishing,
installation and construction of the Work. The Cost of the Work shall also include only the
following:
.1 Wages of direct employees of Design-Builder performing the Work, provided,
however, that the costs for employees of Design-Builder performing design
services shall be calculated on the basis of prevailing market rates for design
professionals performing such services.
.2 Wages or salaries of Design-Builder’s supervisory and administrative personnel
engaged in the performance of the Work to assist in the production or
transportation of material and equipment necessary for the Work.
.3 Wages or salaries of Design-Builder’s personnel stationed at Design-Builder’s
principal or branch offices and performing the following functions. The
reimbursable costs of personnel stationed at Design-Builder’s principal or branch
offices shall include up to a fifteen percent (15%) markup (maximum) to
compensate Design-Builder for the Project-related only overhead associated with
such personnel.
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.4 Costs incurred by Design-Builder for employee benefits, premiums, taxes,
insurance, contributions and assessments required by law, collective bargaining
agreements, or which are customarily paid by Design-Builder, to the extent such
costs are based on wages and salaries paid to employees of Design-Builder
covered under Sections 6.3.1 through 6.3.3 hereof.
.5 The reasonable portion of the cost of travel, accommodations and meals for
Design-Builder’s personnel necessarily and directly incurred in connection with
the performance of the Work.
.6 Payments properly made by Design-Builder to Subcontractors and Design
Consultants for performance of portions of the Work, including any insurance and
bond premiums incurred by Subcontractors and Design Consultants.
.7 Costs incurred by Design-Builder in repairing or correcting defective, damaged or
nonconforming Work, provided that such defective, damaged or nonconforming
Work was beyond the reasonable control of Design-Builder, or caused by the
ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or
those working by or through Design-Builder. If the costs associated with such
defective, damaged or nonconforming Work are recoverable from insurance,
Subcontractors or Design Consultants, Design-Builder shall exercise best efforts
to obtain recovery from the appropriate source and credit City if recovery is
obtained.
.8 Costs, including transportation, inspection, testing, storage and handling, of
materials, equipment and supplies incorporated or reasonably used in completing
the Work.
.9 Costs less salvage value of materials, supplies, temporary facilities, machinery,
equipment and hand tools not customarily owned by the workers that are not fully
consumed in the performance of the Work and which remain the property of
Design-Builder, including the costs of transporting, inspecting, testing, handling,
installing, maintaining, dismantling and removing such items.
.10 Costs of removal and lawful disposal of debris and waste from the Site.
.11 The reasonable costs and expenses incurred in establishing, operating and
demobilizing the Site office, including the cost of facsimile transmissions, long-
distance telephone calls, postage and express delivery charges, telephone service,
photocopying and reasonable petty cash expenses.
.12 Rental charges and the costs of transportation, installation, minor repairs and
replacements, dismantling and removal of temporary facilities, machinery,
equipment and hand tools not customarily owned by the workers, which are
provided by Design-Builder at the Site, whether rented from Design-Builder or
others, and incurred in the performance of the Work.
.13 Premiums for insurance and bonds required by this Agreement or the performance
of the Work.
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.14 All fuel and utility costs incurred in the performance of the Work.
.15 Sales, use or similar taxes, tariffs or duties incurred in the performance of the
Work.
.16 Legal costs, court costs and costs of mediation and arbitration reasonably arising
from Design-Builder’s performance of the Work, provided such costs do not arise
from disputes between City and Design-Builder.
.17 Costs for permits, royalties, licenses, tests and inspections incurred by Design-
Builder as a requirement of the Contract Documents.
.18 The cost of defending suits or claims for infringement of patent rights arising
from the use of a particular design, process, or product required by the City,
paying legal judgments against Design-Builder resulting from such suits or
claims, and paying settlements made with City’s consent.
.19 Deposits which are lost, except to the extent caused by Design-Builder’s
negligence.
.20 Costs incurred in preventing damage, injury or loss in case of an emergency
affecting the safety of persons and property.
.21 Other costs reasonably and properly incurred in the performance of the Work to
the extent approved in writing by City.
6.4 Non-Reimbursable Costs
The following shall be excluded from the Cost of the Work:
.1 Compensation for Design-Builder’s personnel stationed at Design-Builder’s
principal or branch offices, except as provided for in Sections 6.3.1, 6.3.2 and
6.3.3 hereof.
.2 Overhead and general expenses, except as provided for in Section 6.3 hereof.
.3 The cost of Design-Builder’s capital used in the performance of the Work.
.4 If the Parties have agreed on a GMP, costs that would cause the GMP, as adjusted
in accordance with the Contract Documents, to be exceeded.
6.5 The Guaranteed Maximum Price
6.5.1 Establishment of the GMP
6.5.1.1 Design-Builder guarantees that it shall not exceed the GMP of One Hundred Thirty-Two
Thousand Dollars ($132,000.00). Design-Builder will be responsible for paying all costs
for completing the Work which exceeds the GMP, as adjusted in accordance with the
Contract Documents. Documents used as a basis for the GMP shall be identified in an
exhibit to this Agreement (“GMP Exhibit”).
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Article 7
Procedure for Payment
7.1 Progress Payments
7.1.1 Design-Builder shall submit to the City on or before the twenty-fifth (25th) day of
each month, beginning with the first month after the Date of Commencement,
Design-Builder’s Application for Payment in accordance with Article 6 of the
General Conditions of Contract.
7.1.2 The City shall make payment within thirty (30) days of City’s receipt of each
properly submitted and accurate Application for Payment in accordance with
Article 6 of the General Conditions of Contract, but in each case less the total of
payments previously made, and less amounts properly withheld under Section 6.3
of the General Conditions of Contract.
7.1.3 If Design-Builder’s Fee under Section 6.2.1 hereof is a fixed amount, the amount of
Design-Builder’s Fee to be included in Design-Builder’s monthly Application for
Payment and paid by the City shall be proportional to the percentage of the Work
completed, less payments previously made on account of Design-Builder’s Fee.
7.2 Retainage on Progress Payments
7.2.1 Unless otherwise provided below, the City will retain ten percent (10%) of progress
payments for construction costs until thirty-five (35) days following recordation of a
Notice of Completion. City will not retain any portion of the progress payments
reflecting design costs.
7.2.2 In accordance with law, or otherwise, City may withhold payment (in excess of
retentions) or, on account of subsequently discovered evidence, nullify the whole or a
part of any certificate to such extent as may be necessary to protect City from loss on
account of the following:
.1 Defective work not in the process of being remedied.
.2 “Stop Notice” or mechanic's liens claims filed with City.
.3 State, federal and governmental agency claims or liens.
.4 Failure of Design-Builder, its Subcontractors or Sub-Subcontractors to make
payments properly to contractors for material or labor when no actual dispute
exists concerning such payment.
.5 Default of Design-Builder or its Design-Consultants in the performance of any
material term of this Agreement.
.6 If stop notices or mechanic's liens are filed against the Project or state, federal or
other governmental agency claims or liens are filed, City shall withhold the
amount required by law from progress payments or certificates until such claims
and liens shall have been resolved pursuant to applicable law. However, if the
cause of the stop notice is due to City’s unexcused failure to pay Design-Builder
in accordance with the terms of this Agreement, then Design-Builder shall be
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entitled to make a claim for any damages incurred as a result of or arising out of
the withholding.
7.2.3 Upon Substantial Completion of the entire Work or, if applicable, any portion of the
Work, pursuant to Section 6.4 of the General Conditions of Contract, City shall release to
Design-Builder all retained amounts relating, as applicable, to the entire Work or
completed portion of the Work, less an amount equal to the reasonable value of all
remaining or incomplete items of Work as noted in the Certificate of Substantial
Completion and less an amount equal to the reasonable value of the City’s loss on
account of any items listed under Section 7.2.2 of this Agreement.
7.2.4 When the Certificate of Substantial Completion is fully executed and all remaining
incomplete items noted in the Certificate of Substantial Completion have been completed,
the City’s Representative will issue a Notice of Completion and within ten (10) days after
formal acceptance by the City Council of the City, will record such Notice of
Completion. A certified, conformed copy of the recorded Notice of Completion will be
sent to Design-Builder.
7.3 Final Payment. Design-Builder shall submit its Application for Final Payment to the
City in accordance with Section 6.6 of the General Conditions of Contract. The City shall
make payment on Design-Builder’s properly submitted and accurate Application for
Final Payment within thirty (30) days after City’s receipt of the Application for Final
Payment, provided that Design-Builder has satisfied the requirements for final payment
set forth in Section 6.6.2 of the General Conditions of Contract.
7.4 Record Keeping and Finance Controls. Design-Builder acknowledges that this
Agreement is to be administered on an “open book” arrangement relative to Cost of the
Work. Design-Builder shall keep full and detailed accounts and exercise such controls as
may be necessary for proper financial management, using accounting and control systems
in accordance with generally accepted accounting principles and as may be provided in
the Contract Documents. During the performance of the Work and for a period of three
(3) years from the effective date of the Notice of Completion, Design-Builder shall
preserve and City and City’s accountants shall be afforded access from time to time, upon
reasonable notice, to Design-Builder’s records, books, correspondence, receipts,
subcontracts, purchase orders, vouchers, memoranda and other data relating to the Work.
Article 8
Representatives of the Parties
8.1 City’s Representatives
8.1.1 City designates the individual listed below as the City’s Senior Representative, which
individual has the authority and responsibility for avoiding and resolving disputes under
Section 10.2.3 of the General Conditions of Contract:
Matt Raschke, Project Manager
City of Palo Alto, (Public Works Engineering)
250 Hamilton Ave, Palo Alto, CA 94301
(650) 496-5937 phone
Email: matt.raschke@cityofpaloalto.org
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
8.1.2 City designates the individual listed below as the City’s Representative, which individual
has the authority and responsibility set forth in Section 3.2 of the General Conditions of
Contract:
Philip Ciralsky, Project Engineer
City of Palo Alto, (Public Works Engineering)
250 Hamilton Ave, Palo Alto, CA 94301
(650)329-2548 phone
Email: Philip.ciralsky@cityofpaloalto.org
8.2 Design-Builder’s Representatives
8.2.1 Design-Builder designates the individual listed below as the Design-Builder’s Senior
Representative, which individual has the authority and responsibility for avoiding and
resolving disputes under Section 10.2.3 of the General Conditions of Contract:
David Rimerman, VP., 408.986.0210 x225
8.2.2 Design-Builder designates the individual listed below as the Design-Builder’s
Representative, which individual has the authority and responsibility set forth in Section
2.1.1 of the General Conditions of Contract:
Michael Howden, PM., 408.986.0210 x233
Article 9
Notices
9.1 All notices, demands or other communications required or permitted to be given under
the Agreement shall be in writing and shall be deemed to have been duly delivered: (a) upon
personal delivery to the individual intended to receive such notice; (b) four (4) days after mailing
by United States mail, registered or certified, postage prepaid, addressed to the proper party at
the appropriate address set forth below; or (d) if transmitted by facsimile, by the time stated in a
machine generated confirmation that notice was received at the facsimile number of the intended
recipient at the appropriate fax number set forth below.
If to City:
Mat Raschke, Project Manager
City of Palo Alto, (Dept & Div)
250 Hamilton Ave, Palo Alto, CA 94301
(650) 496-5937 phone
Email: matt.raschke@cityofpaloalto.org
If to Design-Builder:
Michael Howden, Project Manager
890 Walsh Avenue
Santa Clara, CA 95050
(408) 986-0210 x233 phone
CITY OF PALO ALTO CONTRACT NO. C14149800
In executing this Agreement, the City and Design-Builder each individually represents that it has
the necessary financial resources to fulfill its obligations under this Agreement, and each has the
necessary corporate approvals to execute this Agreement, and to perform the services described
herein.
CITY OF PALO ALTO:
By: -----------------------------
Name: ---------------------------
Title: ----------------------------
Date: ------------------
Approved as to form:
Senior Asst. City Attorney
City of Palo Alto -C14149800
MUSSON THEATRICAL, INC.
By ;;124~
Name: David Rimerman
-----------------------------
Title: Vice President ------------------------------
Date: 8-12-13 ------~----------
Page 10
08 I 54\CPA _ DB-agmt.doc
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
EXHIBIT A
GENERAL CONDITIONS OF CONTRACT BETWEEN
CITY AND DESIGN-BUILDER
Article 1
General
1.1 Mutual Obligations
1.1.1 City and Design-Builder shall at all times cooperate fully with each other, and proceed on
the basis of trust and good faith, so that each party shall realize the benefits afforded
under the Contract Documents.
Article 2
Design-Builder’s Services And Responsibilities
2.1 General Services
2.1.1 Design-Builder’s Representative shall be reasonably available to City and shall have the
necessary expertise and experience required to supervise the Work. Design-Builder’s
Representative shall communicate regularly with City and shall be vested with the
authority to act on behalf of Design-Builder. Design-Builder’s Representative may be
replaced only with the agreement of the City.
2.1.2 Design-Builder shall provide City with a monthly status report detailing the progress of
the Work, including whether (i) the Work is proceeding according to schedule, (ii)
discrepancies, conflicts, or ambiguities exist in the Contract Documents that require
resolution, (iii) health and safety issues exist in connection with the Work, and (iv) other
items require resolution so as not to jeopardize Design-Builder’s ability to complete the
Work for the Contract Price and within the Contract Time(s).
2.1.3 Design-Builder shall prepare and submit, at least three (3) days prior to the meeting
contemplated by Section 2.1.4 hereof, a Project Schedule including Work Breakdown
Structure (WBS) and Program Evaluation and Review Technique (PERT) charts for the
execution of the Work for City’s review and response. The Project Schedule, including
the WBS and PERT charts, shall indicate the dates for the start and completion of the
various stages of Work, including the dates when City information and approvals are
required to enable Design-Builder to complete the Project within the Contract Time(s).
The Project Schedule shall be revised as required by conditions and progress of the
Work, but such revisions shall not relieve Design-Builder of its obligations to complete
the Project within the Contract Time(s), as such dates may be adjusted in accordance with
the Contract Documents. City’s review of and response to the Project Schedule shall not
relieve Design-Builder of its complete and exclusive obligation to control the means,
methods, sequences and techniques for executing the Work.
2.1.4 The Parties will meet within seven (7) days after execution of the Agreement to discuss
issues affecting the administration of the Work and to implement the necessary
procedures, including procedures relating to submittals and payment, to facilitate the
ability of the Parties to perform their obligations under the Contract Documents.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
2.2 Design Professional Services
2.2.1 Consistent with State of California licensing laws, Design-Builder shall provide the
necessary design services, including architectural, engineering and other design
professional services for the preparation of the required drawings, specifications and
other design submittals to complete the Project consistent with the Contract Documents
through qualified, licensed design professionals employed by Design-Builder or procured
from qualified, independent licensed Design Consultants.
2.2.2 Design-Builder is an independent contractor and is not an agent or employee of the City.
Nothing in the Contract Documents creates any legal or contractual relationship between
the City and any Design Consultant.
2.3 Standard of Care for Design Professional Services
2.3.1 The standard of care for all design professional services performed to execute the Work
shall be the care and skill ordinarily used by members of the design profession practicing
under similar conditions at the same time and locality of the Project. Notwithstanding the
preceding sentence, in the event the Contract Documents specify that portions of the
Project be performed in accordance with specific performance standards, the design
professional services shall be performed to achieve such standards.
2.4 Design Development Services
2.4.1 Design-Builder and City shall, consistent with any applicable provision of the Contract
Documents, agree upon any interim design submissions that City may wish to review,
which interim design submissions may include design criteria, drawings, diagrams and
specifications setting forth the Project requirements. On or about the time of the
scheduled submissions, Design-Builder and City shall meet and confer about the
submissions, with Design-Builder identifying during such meetings, among other things,
the evolution of the design and any significant changes or deviations from the Contract
Documents, or, if applicable, previously submitted design submissions. Minutes of the
meetings will be maintained by Design-Builder and provided to all attendees for review
within seven (7) days of the meeting. Following the design review meeting, City shall
review and approve the interim design submissions in a time that is consistent with the
turnaround times set forth in the Project Schedule.
2.4.2 Design-Builder shall submit to City Construction Documents setting forth in detail
drawings and specifications describing the requirements for construction of the Work.
The Construction Documents shall be consistent with the latest set of interim design
submissions, as such submissions may have been modified in design review meetings.
The Parties shall have a design review meeting to discuss, and City shall review and
approve, the Construction Documents in accordance with the procedures set forth in
Section 2.4.1 above. Design-Builder shall proceed to construct the Project in accordance
with the approved Construction Documents and shall submit one set of approved
Construction Documents to City prior to commencement of construction.
2.4.3 City’s review and approval of interim design submissions and the Construction
Documents is for the purpose of mutually establishing a conformed set of Contract
Documents compatible with the requirements of the Work and consistent with the PER.
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Neither City’s review nor approval of any interim design submissions and Construction
Documents shall be deemed to transfer any design liability from Design-Builder to City.
2.4.4 To the extent not prohibited by the Contract Documents or Legal Requirements and
subject to the City’s approval, Design-Builder may prepare interim design submissions
and Construction Documents for a portion of the Work to permit construction to proceed
on that portion of the Work prior to completion of the Construction Documents for the
entire Work.
2.5 Legal Requirements
2.5.1 Design-Builder shall perform the Work in accordance with all Legal Requirements and
shall provide all notices applicable to the Work as required by the Legal Requirements.
2.5.2 The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design-
Builder for the effects of any changes in the Legal Requirements enacted after the date of
the Agreement affecting the performance of the Work, or if a Guaranteed Maximum
Price is established after the date of the Agreement, the date the Parties agree upon the
Guaranteed Maximum Price. Such changes may include, without limitation, revisions
Design-Builder is required to make to the Construction Documents because of changes in
Legal Requirements.
2.6 Permits and Approvals
2.6.1 Design-Builder shall provide, procure and pay for all permits, approvals, licenses and
fees required for construction of the Project. Payment of all costs and expenses for such
permits, approvals, licenses and fees shall be included in the Cost of the Work pursuant
to Section 6.3 of the Agreement.
2.7 Design-Builder’s Construction Phase Services
2.7.1 Unless otherwise provided in the Contract Documents, Design-Builder shall provide
through itself or Subcontractors the necessary supervision, labor, inspection, testing,
start-up, material, equipment, machinery, temporary utilities, and all other temporary
facilities necessary to complete the Project consistent with the Contract Documents.
2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite
expertise, skill and competence to satisfy the requirements of the Contract Documents.
Design-Builder shall at all times exercise complete and exclusive control over the means,
methods, sequences and techniques of construction.
2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed, qualified to
perform the Work consistent with the Contract Documents, and in compliance with all
applicable laws of the City and all other governmental entities including, but not limited
to, the state, federal and county governments. The City may reasonably object to Design-
Builder’s selection of any Subcontractor.
2.7.4 Design-Builder assumes responsibility to City for the proper performance of the Work of
Subcontractors and any acts and omissions in connection with such performance.
Nothing in the Contract Documents shall create any legal or contractual relationship
between City and any Subcontractor or Sub-Subcontractor, including but not limited to
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
any third-party beneficiary rights. Design-Builder shall bind every Subcontractor (and
require every Subcontractor to so bind its subcontractors and material suppliers) to all the
provision of the Agreement and the Contract Documents as they apply to the
Subcontractor’s portion of the Work.
2.7.5 All Subcontractors and Sub-Subcontractors must comply with the terms of the Contract
Documents. Design-Builder shall contractually require its Subcontractors and Sub-
Subcontractors to cooperate with, and coordinate their activities so as not to interfere with
separate contractors under the City’s control, in order to enable the timely completion of
the Project. If the City performs other Work on the Project or at the Site with separate
contractors under City’s control, Design-Builder shall reasonably cooperate and
coordinate its activities with the activities of such separate contractors so that the Project
can be completed in an orderly and coordinated manner without unreasonable disruption.
2.7.6 Design-Builder shall keep the sites reasonably free from debris, trash and construction
wastes, and shall perform its construction services efficiently, safely and without
interfering with the use of adjacent land areas. Upon Substantial Completion of the Work,
or a portion of the Work, Design-Builder shall remove all debris, trash, construction
wastes, materials, equipment, machinery and tools arising from the Work or applicable
portions thereof to permit City to occupy the Project or a portion of the Project for its
intended use.
2.8 Design-Builder’s Responsibility for Project Safety
2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as
to prevent damage, injury or loss to (i) all individuals at the Site, whether working or
visiting, (ii) the Work, including materials and equipment incorporated into the Work or
stored on-Site or off-Site, and (iii) all other property at the Site or adjacent thereto.
Design-Builder assumes responsibility for implementing and monitoring all safety
precautions and programs related to the performance of the Work. Design-Builder shall,
prior to commencing construction, designate an individual at the Site in the employ of
Design-Builder who shall act as Design Builder’s designated safety representative with
the necessary qualifications and experience to supervise the implementation and
monitoring of all safety precautions and programs related to the Work. Unless otherwise
required by the Contract Documents, Design-Builder’s designated safety representative
shall be an individual stationed at the Site and may have responsibilities on the Project in
addition to safety. The designated safety representative shall make routine daily
inspections of the Site and shall hold weekly safety meetings with Design-Builder’s
personnel, Subcontractors and others as necessary or appropriate.
2.8.2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to
safety, as well as any City-specific safety requirements set forth in the Contract
Documents, provided that such City-specific requirements do not violate any applicable
Legal Requirements. Design-Builder will immediately report in writing any safety-related
injury, loss, damage or accident arising from the Work to City’s Representative and, to
the extent mandated by Legal Requirements, to all government or quasi-government
authorities having jurisdiction over safety-related matters involving the Project or the
Work.
2.8.3 Design-Builder’s responsibility for safety under this section 2.8 does not relieve
Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
responsibility for (i) complying with all Legal Requirements, including Legal
Requirements related to health and safety matters, and (ii) taking all necessary measures
to implement and monitor all safety precautions and programs to guard against injury,
losses, damages or accidents resulting from their performance of the Work.
2.9 Design-Builder’s Warranty
2.9.1 Design-Builder warrants to City that the construction, including all materials and
equipment furnished as part of the construction, shall be: (a) of good quality and new; (b)
in conformance with the Contract Documents; (c) free of defects in materials and
workmanship; (d) performed in a good and workmanlike manner; and (e) in compliance
with Legal Requirements and conditions of the permits. In the event any construction
does not conform to the requirements of the preceding sentence, Design-Builder shall
correct such nonconformances in accordance with Section 2.10 hereof. Design-Builder’s
warranty obligation excludes defects caused by abuse, alterations, or failure to maintain
the Work by persons other than Design-Builder or anyone for whose acts Design-Builder
is responsible. Nothing in this warranty limits any manufacturer’s warranty which
provides City with greater warranty rights than set forth in this Section 2.9 or the
Contract Documents. Design-Builder will provide City with all manufacturers’ warranties
upon Substantial Completion.
2.10 Correction of Defective Work
2.10.1 Design-Builder will correct any defective Work that is not in conformance with the
Contract Documents, including that part of the Work subject to Section 2.9 hereof, within
a period of one year from the date of Substantial Completion of the Work or any portion
of the Work, or within such longer period to the extent required by the Contract
Documents.
2.10.2 Design-Builder shall, within seven (7) days of receipt of written notice from City that the
Work is not in conformance with the Contract Documents, commence correction of such
nonconforming Work, including the correction, removal or replacement of the
nonconforming Work and any damage caused to other parts of the Work affected by the
nonconforming Work. If Design-Builder fails to commence the necessary steps within
such seven (7) day period, City, in addition to any other remedies provided under the
Contract Documents, may provide Design-Builder with written notice that City will
commence correction of such nonconforming Work with its own forces. If City does
perform such corrective Work, Design-Builder shall be responsible for all reasonable
costs incurred by City in performing such correction. If the nonconforming Work creates
an emergency requiring an immediate response, Design-Builder shall immediately take
steps to correct the problem, and shall not have the seven (7) day period identified herein
in which to commence correction of the nonconforming Work.
2.10.3 The one (1) year period referenced in Section 2.10.1 above applies only to Design-
Builder’s obligation to correct nonconforming Work and does not constitute a period of
limitations for any other rights or remedies City may have regarding Design-Builder’s
other obligations under the Contract Documents.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
Article 3
City’s Services And Responsibilities
3.1 Duty to Cooperate
3.1.1 City shall, throughout the performance of the Work, cooperate with Design-Builder and
perform its responsibilities, obligations and services in a timely manner to facilitate
Design-Builder’s timely and efficient performance of the Work and so as not to delay or
interfere with Design-Builder’s performance of its obligations under the Contract
Documents.
3.1.2 City shall provide timely reviews and approvals of interim design submissions and
Construction Documents consistent with the turnaround times set forth in the Project
Schedule.
3.2 City’s Representative
3.2.1 City’s Representative shall be responsible for providing City supplied information and
approvals in a timely manner so that Design-Builder can fulfill its obligations under the
Contract Documents. City’s Representative shall also provide Design-Builder with
prompt notice if it observes any failure on the part of Design-Builder to fulfill its
contractual obligations, including any errors, omissions or defects in the performance of
the Work.
3.3 Furnishing of Services and Information
3.3.1 Unless expressly stated to the contrary in the Contract Documents, if requested in writing
by Design-Builder, City shall provide to Design-Builder the following:
.1 To the extent available, as-built and record drawings of any existing structures at
the Site; and
.2 To the extent available, environmental studies, reports and impact statements
describing the environmental conditions, including Hazardous Conditions, in
existence at the Site.
3.3.2 City is responsible for securing and executing all necessary agreements with adjacent
land or property owners that are necessary to enable Design-Builder to perform the Work.
City is further responsible for all costs, including attorneys’ fees, incurred in securing
these necessary agreements.
3.4 Permits and Approvals
3.4.1 It is the Design-Builder’s responsibility to obtain all necessary permits, approvals
paperwork and licenses required for the project.
3.5 City’s Separate Contractors
3.5.1 City is responsible for all Work performed on the Project or at the Site by separate
contractors under City’s control. City shall contractually require its separate contractors
to cooperate with, and coordinate their activities so as not to interfere with Design-
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
Builder in order to enable Design-Builder to timely complete the Work consistent with
the Contract Documents.
Article 4
Hazardous Conditions and Differing Site Conditions
4.1 Hazardous Conditions
4.1.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work,
Design-Builder is not responsible for any existing Hazardous Conditions encountered at
the Site. Upon encountering any Hazardous Conditions, Design-Builder will stop Work
immediately in the affected area and duly notify City in writing and, if required by Legal
Requirements, all government or quasi-government entities with jurisdiction over the
Project or Site.
4.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, City shall take
the necessary measures required to ensure that the Hazardous Conditions are remediated
or rendered harmless. Such necessary measures shall include City retaining qualified
independent experts to (i) ascertain whether Hazardous Conditions have actually been
encountered, and, if they have been encountered, (ii) prescribe the remedial measures that
City must take either to remove the Hazardous Conditions or render the Hazardous
Conditions harmless.
4.1.3 Design-Builder shall be obligated to resume Work at the affected area of the Project after
City’s expert provides it with written certification that (i) the Hazardous Conditions have
been removed or rendered harmless and (ii) all necessary approvals have been obtained
from all government and quasi-government entities having jurisdiction over the Project or
Site.
4.1.4 Design-Builder will be entitled, in accordance with the General Conditions of Contract,
to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-
Builder’s cost and/or time of performance have been adversely impacted by the presence
of Hazardous Conditions.
4.1.5 To the extent not caused by the solely negligent acts or omissions of Design-Builder,
Design Consultants, Subcontractors, Sub-Subcontractors, anyone employed directly or
indirectly for any of them, or their officers, directors, employees and agents, City shall
indemnify, defend and hold harmless Design-Builder, Design Consultants,
Subcontractors, Sub-Subcontractors, anyone employed directly or indirectly for any of
them, and their officers, directors, employees and agents, from and against any and all
claims, losses, damages, liabilities and expenses, including attorneys’ fees and expenses,
arising out of or resulting from the presence, removal or remediation of Hazardous
Conditions at the Site which were on the Site prior to the date of the Agreement.
4.1.6 Notwithstanding the preceding provisions of this Section 4.1, City is not responsible for
Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors, Sub-
Subcontractors or anyone for whose acts they may be liable. Design-Builder shall
indemnify, defend and hold harmless City and City’s officers, directors, employees and
agents from and against all claims, losses, damages, liabilities and expenses, including
attorneys’ fees and expenses, arising out of or resulting from Hazardous Conditions
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
introduced to the Site by Design-Builder, its Subcontractors, Sub-Subcontractors or
anyone for whose acts they may be liable.
4.2 Differing Site Conditions
4.2.1 Concealed or latent physical conditions or subsurface conditions at the Site that (i)
materially differ from the conditions indicated in the Contract Documents or (ii) are of an
unusual nature, differing materially from the conditions ordinarily encountered and
generally recognized as inherent in the Work are collectively referred to herein as
“Differing Site Conditions.” If Design-Builder encounters a Differing Site Condition, the
Parties shall meet and confer in order to determine if an adjustment in the Contract Price
and/or Contract Time(s) is warranted to the extent Design-Builder’s cost and/or time of
performance are adversely impacted by the Differing Site Condition.
4.2.2 Upon encountering a Differing Site Condition, Design-Builder shall, within fourteen (14)
days after discovery of the Differing Site Condition, provide prompt written notice to
City of such condition, setting forth with specificity the nature of the Differing Site
Condition and a recommendation for handling the Differing Site Condition in a manner
which causes the least disruption to the Project Schedule. Design-Builder shall, to the
extent reasonably possible, provide such notice before the Differing Site Condition has
been disturbed or altered.
4.2.3 Notwithstanding the foregoing, in the event the Parties are unable to agree to an
adjustment in the Contract Price and/or Contract Time within sixty (60) days of the City’s
receipt of notice in accordance with Section 4.2.2 above, the City may at its election (i)
terminate the Agreement in accordance with Article 8 of the Agreement, or (ii) resolve
the dispute using the procedures established in Article 10 of these General Conditions of
Contract.
Article 5
Insurance and Bonds
5.1 Design-Builder’s Insurance Requirements
5.1.1 Design-Builder is responsible for procuring and maintaining from insurance companies
authorized to do business in California, and with a minimum rating set forth herein, the
following insurance coverage for certain claims which may arise from or out of the
performance of the Work and obligations under the Contract Documents, see Attachment
C of the RFP.
5.1.2 Design-Builder’s liability insurance shall include completed operations insurance for the
period of time set forth in the Contract Documents.
5.1.3 Design-Builder’s liability insurance shall specifically delete any design-build or similar
exclusions that could compromise coverage because of the design-build delivery of the
Project.
5.1.4 To the extent City requires Design-Builder or any Design Consultant to provide
professional liability insurance for claims arising from the negligent performance of
design services by Design-Builder or the Design Consultant, the coverage limits, duration
and other specifics of such insurance shall be as set forth in Article 5 hereof. Any
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
professional liability insurance shall specifically delete any design-build or similar
exclusions that could compromise coverage because of the design-build delivery of the
Project. Such policies shall be provided prior to the commencement of any design
services under the Contract Documents.
5.1.5 Prior to commencing any construction services under the Contract Documents, Design-
Builder shall provide City with certificates evidencing that (i) all insurance obligations
required by the Contract Documents are in full force and in effect and will remain in
effect for the duration required by the Contract Documents and (ii) no insurance coverage
will be canceled, renewal refused, or materially changed unless at least thirty (30) days
prior written notice is given to City.
5.2 City’s Property Insurance
5.2.1 Unless otherwise provided in the Contract Documents, City shall procure and maintain
from insurance companies authorized to do business in the state in which the Project is
located, property insurance upon the entire Project to the full insurable value of the
Project, including professional fees, overtime premiums and all other expenses incurred
to replace or repair the insured property. The property insurance obtained by City shall
include as additional insureds the interests of City, Design-Builder, Design Consultants,
Subcontractors and Sub-Subcontractors, and shall insure against the perils of fire and
extended coverage, theft, vandalism, malicious mischief, collapse, flood, earthquake,
debris removal and other perils or causes of loss as called for in the Contract Documents.
The property insurance shall include physical loss or damage to the Work, including
materials and equipment in transit, at the Site or at another location as may be indicated
in Design-Builder’s Application for Payment and approved by City.
5.2.2 Unless the Contract Documents provide otherwise, City shall procure and maintain boiler
and machinery insurance that will include the interests of City, Design-Builder, Design
Consultants, Subcontractors and Sub-Subcontractors.
5.2.3 Any loss covered under City’s property insurance shall be adjusted with City and Design-
Builder and made payable to both of them as trustees for the insured as their interests
may appear, subject to any applicable mortgage clause. All insurance proceeds received
as a result of any loss will be placed in a separate account and distributed in accordance
with such agreement as the interested parties may reach. Any disagreement concerning
the distribution of any proceeds will be resolved in accordance with Article 10 hereof.
5.2.4 City and Design-Builder waive against each other and City’s separate contractors, Design
Consultants, Subcontractors, agents and employees of each and all of them, all damages
covered by property insurance provided herein, except such rights as they may have to
the proceeds of such insurance. Design-Builder and City shall, where appropriate, require
similar waivers of subrogation from City’s separate contractors, Design Consultants and
Subcontractors and each of them shall include similar waivers in their contracts.
5.3 Bonds and Other Performance Security. Design-Builder shall obtain performance and
labor and material payment bonds, or other forms of performance security, the amount,
form and other conditions of such security as set forth herein:
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
5.3.1 General Requirement.
.1 Before allowing a contractor to enter upon the Site and perform Project
construction work, Design-Builder shall file with City duplicates of each
performance bond, labor and material payment bonds, and a warranty bond in the
form attached to the Agreement as Exhibits E-1, and E-2, respectively, and
incorporated herein by this reference, required under this section. These bonds
shall be in the amounts and for the purposes specified below. The surety bonds
shall be issued by an admitted surety insurer which complies with the provisions
of the California Code of Civil Procedure §995.660.
.2 Should any surety or sureties upon said bonds or any of them become
insufficient, Design-Builder’s contractors shall obtain replacement bonds with
good and sufficient sureties within ten (10) days after receiving notice from City
that the surety or sureties are insufficient. The costs of any required bonds
(whether original or replacement) are included in the GMP.
5.3.2 Performance Bond. Design-Builder shall post: (a) a performance bond in favor of City
in substantially the form attached to the Agreement as Exhibit E-1, as security for the
faithful performance by Design-Builder of its obligations under the Agreement, and
(b) require each Subcontractor or Sub-Subcontractor to deliver to City an executed
performance bond in favor of City in substantially the form attached to the Agreement as
Exhibit E-1b, as security for the faithful performance by such contractor of the
contractor’s obligations under its construction contract. The cost of the foregoing bonds
are included in the GMP.
5.3.3 Labor and Material Payment Bonds. Design-Builder shall obtain a labor and materials
payment bond in favor of City in substantially the form attached to the Agreement as
Exhibit E-2, as security for the payment to the Subcontractors or Sub-Subcontractors,
and (b) require each Subcontractor or Sub-Subcontractor to deliver to City an executed
payment bond in favor of City in an amount equal to 100% of the contract sum of such
Subcontractor or Sub-Subcontractor’s construction contract as security for the payment of
all persons performing labor and furnishing materials under such construction contract.
The cost of the foregoing bonds is included in the GMP.
5.3.4 Correction of Defective Work and Guarantee to Repair Period. In addition to any
specific warranty mentioned in these specifications, the Contractor shall guarantee that all
material, apparatus, equipment, and workmanship used, installed, or incorporated in the
work is free from defects, and agrees to replace at no expense to the City any and all
defective Work or materials which become evident within one (1) year (“Guarantee To
Repair Period”), unless a longer period of time is specified in the Contract documents.
Article 6
Payment
6.1 Schedule of Values
6.1.1 Within ten (10) days of execution of the Agreement, Design-Builder shall submit for
City’s review and approval a schedule of values for all of the Work. The schedule of
values will (i) subdivide the Work into its respective parts, (ii) include values for all items
comprising the Work and (iii) serve as the basis for monthly progress payments made to
Design-Builder throughout the Work.
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6.2 Monthly Progress Payments
6.2.1 On or before the date established in the Agreement, Design-Builder shall submit its
Application for Payment to the City. The City shall have five (5) business days to review
and approve the Application for Payment requesting payment for all Work performed as
of the date of the Application for Payment. The Application for Payment shall be
accompanied by all supporting documentation required by the Contract Documents
and/or established at the meeting required by Section 2.1.4 hereof. The City shall make
payment within thirty (30) days of City’s receipt of each properly submitted and accurate
Application for Payment, but in each case less the total of payments previously made, and
less amounts properly withheld under Section 6.3 hereof.
6.2.2 The Application for Payment may request payment for equipment and materials not yet
incorporated into the Project, provided that (i) City is satisfied that the equipment and
materials are suitably stored at either the Site or another acceptable location, (ii) the
equipment and materials are protected by suitable insurance and (iii) upon payment, City
will receive the equipment and materials free and clear of all liens and encumbrances.
6.2.3 The Application for Payment shall constitute Design-Builder’s representation that the
Work has been performed consistent with the Contract Documents, has progressed to the
point indicated in the Application for Payment, and that title to all Work will pass to City
free and clear of all claims, liens, encumbrances, and security interests upon the
incorporation of the Work into the Project, or upon Design-Builder’s receipt of payment,
whichever occurs earlier.
6.3 Withholding of Payments
6.3.1 On or before the date established in the Agreement, City shall pay Design-Builder all
amounts properly due. If City determines that Design-Builder is not entitled to all or part
of an Application for Payment, it will notify Design-Builder in writing at least five (5)
days prior to the date payment is due. The notice shall indicate the specific amounts City
intends to withhold, the reasons and contractual basis for the withholding, and the
specific measures Design-Builder must take to rectify City’s concerns. Design-Builder
and City will attempt to resolve City’s concerns prior to the date payment is due. If the
Parties cannot resolve such concerns, Design-Builder may pursue its rights under the
Contract Documents, including the rights under Article 10 hereof.
6.3.2 Notwithstanding anything to the contrary in the Contract Documents, City shall pay
Design-Builder all undisputed amounts in an Application for Payment within the times
required by the Agreement.
6.4 Design-Builder’s Payment Obligations
6.4.1 Design-Builder will pay Design Consultants and Subcontractors, in accordance with its
contractual obligations to such parties, all the amounts Design-Builder has received from
City on account of their work. Design-Builder will impose similar requirements on
Design Consultants, Subcontractors and Sub-Subcontractors to pay parties with whom
they have contracted.
6.5 Substantial Completion
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6.5.1 Design-Builder shall notify City when it believes the Work, or to the extent permitted in
the Contract Documents, a portion of the Work, is substantially complete. Within five
(5) days of City’s receipt of Design-Builder’s notice, City and Design-Builder will jointly
inspect such Work to verify that it is substantially complete in accordance with the
requirements of the Contract Documents. If such Work is substantially complete, City
shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the
date of Substantial Completion of the Work or portion thereof, (ii) the remaining items of
Work that have to be completed before final payment, (iii) provisions (to the extent not
already provided in the Contract Documents) establishing City’s and Design-Builder’s
responsibility for the Project’s security, maintenance, utilities and insurance pending final
payment and (iv) an acknowledgment that warranties commence to run on the date of
Substantial Completion, except as may otherwise by noted in the Certificate of
Substantial Completion.
6.5.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the
Work, City shall release to Design-Builder all retained amounts relating, as applicable, to
the entire Work or completed portion of the Work, less an amount equal to the reasonable
value of all remaining or incomplete items of Work as noted in the Certificate of
Substantial Completion.
6.5.3 City, at its option, may use a portion of the Work which has been determined to be
substantially complete, provided, however, that (i) a Certificate of Substantial
Completion has been issued for the portion of Work and addressing the items set forth in
Section 6.5.1 above, (ii) Design-Builder and City have obtained the consent of their
sureties and insurers, and to the extent applicable, the appropriate government authorities
having jurisdiction over the Project, and (iii) City and Design-Builder agree that City’s
use or occupancy will not interfere with Design-Builder’s completion of the remaining
Work.
6.6 Final Payment
6.6.1 After receipt of an Application for Final Payment from Design-Builder, City shall make
final payment by the time required in the Agreement, provided that Design-Builder has
completed all of the Work in conformance with the Contract Documents.
6.6.2 At the time of submission of its Application for Final Payment, Design-Builder shall
provide the following information:
.1 an affidavit that there are no claims, obligations, liens or stop notices outstanding
or unsatisfied for labor, services, material, equipment, taxes or other items
performed, furnished or incurred for or in connection with the Work which will
in any way affect City’s interests;
.2 a general release executed by Design-Builder waiving, upon receipt of final
payment by Design-Builder, all claims, except claims previously made in writing
to City and remaining unsettled at the time of final payment;
.3 consent of Design-Builder’s surety, if any, to final payment;
.4 all operating manuals, warranties and other deliverables required by the Contract
Documents; and
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.5 certificates of insurance confirming that required coverage will remain in effect
consistent with the requirements of the Contract Documents.
6.6.3 Upon making final payment, City waives all claims against Design-Builder except claims
relating to (i) Design-Builder’s failure to satisfy its payment obligations, if such failure
affects City’s interests, (ii) Design-Builder’s failure to complete the Work consistent with
the Contract Documents, including defects appearing both before and after Substantial
Completion and (iii) the terms of any special warranties required by the Contract
Documents.
Article 7
Indemnification
7.1 Patent and Copyright Infringement
7.1.1 Design-Builder shall defend any action or proceeding brought against City based on any
claim that the Work, or any part thereof, or the operation or use of the Work or any part
thereof, constitutes infringement of any United States patent or copyright, now or
hereafter issued. City shall give prompt written notice to Design-Builder of any such
action or proceeding and will reasonably provide authority, information and assistance in
the defense of same. Design-Builder shall indemnify and hold harmless City from and
against all damages and costs, including but not limited to attorneys’ fees and expenses
awarded against City or Design-Builder in any such action or proceeding. Design-Builder
shall keep City informed of all developments in the defense of such actions.
7.1.2 If City is enjoined from the operation or use of the Work, or any part thereof, as the result
of any patent or copyright suit, claim, or proceeding, Design-Builder shall at its sole
expense take reasonable steps to procure the right to operate or use the Work. If Design-
Builder cannot so procure such right within a reasonable time, Design-Builder shall
promptly, at Design-Builder’s option and at Design-Builder’s expense, (i) modify the
Work so as to avoid infringement of any such patent or copyright or (ii) replace said
Work with Work that does not infringe or violate any such patent or copyright.
7.1.3 Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding
based on infringement or violation of a patent or copyright (i) relating solely to a
particular process or product of a particular manufacturer specified by City and not
offered or recommended by Design-Builder to City or (ii) arising from modifications to
the Work by City or its agents after acceptance of the Work. If the suit, claim or
proceeding is based upon events set forth in the preceding sentence, City shall defend,
indemnify and hold harmless Design-Builder to the same extent Design-Builder is
obligated to defend, indemnify and hold harmless City in Section 7.1.1 above.
7.1.4 The obligations set forth in this Section 7.1 shall constitute the sole agreement between
the Parties relating to liability for infringement of violation of any patent or copyright.
7.2 Design-Builder’s Indemnification for Professional Design Services
7.2.1 In connection with its professional design services, and to the fullest extent permitted by
law, Design-Builder shall protect, indemnify, defend and hold harmless City, its Council
members, officers, employees and agents (each an “Indemnified Party”) from and against
any and all demands, claims, or liability of any nature, including death or injury to any
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person, property damage or any other loss, including all costs and expenses of whatever
nature including attorneys fees, expert fees, court costs and disbursements (“Claims”)
that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct
of Design-Builder or any of its officers, employees, subconsultants, agents or contractors
in the performance of its professional design services under the Agreement, regardless of
whether or not it is caused in part by an Indemnified Party.
7.2.2 If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed
directly or indirectly by any of them or anyone for whose acts any of them may be liable
has a claim against City, its officers, directors, employees, or agents, Design-Builder’s
indemnity obligation set forth in Section 7.2.1 above shall not be limited by any
limitation on the amount of damages, compensation or benefits payable by or for Design-
Builder, Design Consultants, Subcontractors, or other entity under any employee benefit
acts, including workers’ compensation or disability acts.
7.3 Design-Builder’s General Indemnification
7.3.1 In connection with all claims not covered by Section 7.2 above, and to the fullest extent
permitted by law, Design-Builder shall protect, indemnify, defend and hold harmless
City, its Council members, officers, employees and agents (each an “Indemnified Party”)
from and against any and all demands, claims, or liability of any nature, including death
or injury to any person, property damage or any other loss, including all costs and
expenses of whatever nature including attorneys fees, expert fees, court costs and
disbursements (“Claims”) resulting from, arising out of or in any manner related to
performance or nonperformance by Design-Builder, Design Consultants, Subcontractors,
anyone employed directly or indirectly by any of them or anyone for whose acts any of
them may be liable, regardless of whether or not it is caused in part by an Indemnified
Party.
.1 Notwithstanding the above, nothing in this Section 7.3 shall be construed to
require Design-Builder to indemnify an Indemnified Party from Claims arising
from the active negligence, sole negligence or willful misconduct of an
Indemnified Party.
.2 The acceptance of Design-Builder’s services and duties by City shall not operate
as a waiver of the rights of indemnification. The provisions of this Section 7.3
shall survive the expiration or early termination of the Agreement.
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7.4 City’s General Indemnification
7.4.1 City, to the fullest extent permitted by law, shall indemnify, hold harmless and defend
Design-Builder and any of Design-Builder’s officers, directors, employees, or agents
from and against claims, losses, damages, liabilities, including attorneys’ fees and
expenses, for bodily injury, sickness or death, and property damage or destruction (other
than to the Work itself) to the extent resulting from the sole negligent acts or omissions of
City’s separate contractors or anyone for whose acts any of them may be liable.
Article 8
Time
8.1 Obligation to Achieve the Contract Times
8.1.1 Design-Builder will commence performance of the Work and achieve the Contract
Time(s) in accordance with Article 5 of the Agreement.
8.2 Delays to the Work
8.2.1 If Design-Builder is delayed in the performance of the Work due to acts, omissions,
conditions, events, or circumstances beyond its control and due to no fault of its own or
those for whom Design-Builder is responsible, the Contract Time(s) for performance
shall be reasonably extended by Change Order. By way of example, events that will
entitle Design-Builder to an extension of the Contract Time(s) include acts or
commissions of City or anyone under City’s control (including separate contractors),
changes in the Work, Differing Site Conditions, Hazardous Conditions, wars, floods,
labor disputes, unusual delay in transportation, epidemics abroad, earthquakes, adverse
weather conditions not reasonably anticipated, and other acts of God.
8.2.2 In addition to Design-Builder’s right to a time extension for events set forth in Section
8.2.1 above, Design-Builder shall also be entitled to an appropriate adjustment of the
Contract Price provided, however, that the Contract Price shall not be adjusted for events
set forth in Section 8.2.1 above that are beyond the control of both Design-Builder and
City, including the events of wars, floods, labor disputes, earthquakes, epidemics, adverse
weather conditions not reasonably anticipated, and other acts of God.
Article 9
Changes to the Contract Price and Time
9.1 Change Orders
9.1.1 A Change Order is a written instrument issued after execution of the Agreement signed
by City and Design-Builder, stating their agreement upon all of the following:
.1 The scope of a change in the Work;
.2 The amount of the adjustment, if any, to the Contract Price; and
.3 The extent of the adjustment, if any, to the Contract Time(s).
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9.1.2 All changes in the Work authorized by applicable Change Order shall be performed
under the applicable conditions of the Contract Documents. City and Design-Builder
shall negotiate in good faith and as expeditiously as possible the appropriate adjustment
for such changes.
9.1.3 If City requests a proposal for a change in the Work from Design-Builder and
subsequently elects not to proceed with the change, a Change Order shall be issued to
reimburse Design-Builder for reasonable costs incurred for estimating services, design
services and services involved the preparation of proposed revisions to the Contract
Documents.
9.2 Work Change Directives
9.2.1 A Work Change Directive is a written order prepared and signed by the City, directing a
change in the Work prior to agreement on an adjustment in the Contract Price and/or the
Contract Time(s).
9.2.2 City and Design-Builder shall negotiate in good faith and as expeditiously as possible the
appropriate adjustments for the Work Change Directive. Upon reaching an agreement,
the Parties shall prepare and execute an appropriate Change Order reflecting the terms of
the agreement.
9.3 Contract Price Adjustments
9.3.1 The increase or decrease in Contract Price resulting from a change in the Work shall be
determined by one or more of the following methods:
.1 Unit prices set forth in the Agreement or as subsequently agreed to between the
Parties;
.2 A mutually accepted, lump sum, properly itemized and supported by sufficient
substantiating data to permit evaluation by City;
.3 Other costs and fees set forth in the Agreement; and
.4 If an increase or decrease cannot be agreed to as set forth in items .1 through .3
above and City issues a Work Change Directive, the cost of the change of the
Work shall be determined by the reasonable expense and savings in the
performance of the Work resulting from the change. Design-Builder shall
maintain a documented, itemized accounting evidencing the expenses and
savings associated with such changes.
9.3.2 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the
Parties, but application of such unit prices will cause substantial inequity to City or
Design-Builder because of differences in the character or quantity of such unit items as
originally contemplated, such unit prices shall be equitably adjusted.
9.3.3 If City and Design-Builder disagree upon whether Design-Builder is entitled to be paid
for any services required by City, or if there are any other disagreements over the scope
of Work or proposed changes to the Work, City and Design-Builder shall resolve the
disagreement pursuant to Article 10 hereof. As part of the negotiation process, Design-
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Builder shall furnish City with a good faith estimate of the costs to perform the disputed
services in accordance with City’s interpretations. If the Parties are unable to agree and
City expects Design-Builder to perform the services in accordance with City’s
interpretations, Design-Builder shall proceed to perform the disputed services,
conditioned upon City issuing a written order to Design-Builder (i) directing Design-
Builder to proceed and (ii) specifying City’s interpretation of the services that are to be
performed. If this occurs, Design-Builder shall be entitled to submit in its Applications
for Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost
to perform the services, and City shall pay such amounts, with the express understanding
that (i) such payment by City does not prejudice City’s right to argue that it has no
responsibility to pay for such services and (ii) receipt of such payment by Design-Builder
does not prejudice Design-Builder’s right to seek full payment of the disputed services if
City’s order is deemed to be a change to the Work.
9.4 Emergencies
9.4.1 In any emergency affecting the safety of persons and/or property, Design-Builder shall
act, in its reasonable discretion, to prevent threatened damage, injury or loss to persons or
property. Any change in the Contract Price and/or Contract Time(s) on account of
emergency work shall be determined as provided in this Article 9.
Article 10
Contract Adjustments and Disputes
10.1 Requests for Contract Adjustments and Relief
10.1.1 If either Design-Builder or City believes that it is entitled to relief against the other for
any event arising out of or related to the Work or Project, such party shall provide written
notice to the other party of the basis for its claim for relief. Such notice shall, if possible,
be made prior to incurring any cost or expense and in accordance with any specific notice
requirements contained in applicable sections of these General Conditions of Contract.
In the absence of any specific notice requirement, written notice shall be given within a
reasonable time, not to exceed ten (10) days, after the occurrence giving rise to the claim
for relief or after the claiming party reasonably should have recognized the event or
condition giving rise to the request, whichever is later. Such notice shall include
sufficient information to advise the other party of the circumstances giving rise to the
claim for relief, the specific contractual adjustment or relief requested and the basis of
such request.
10.2 Dispute Avoidance and Resolution
10.2.1 The Parties are fully committed to working with each other throughout the Project and
agree to communicate regularly with each other at all times so as to avoid or minimize
disputes or disagreements. If disputes or disagreements do arise, Design-Builder and
City each commit to resolving such disputes or disagreements in an amicable,
professional and expeditious manner so as to avoid unnecessary losses, delays and
disruptions to the Work.
10.2.2 Design-Builder and City will first attempt to resolve disputes or disagreements at the
field level through discussions between Design-Builder’s Representative and City’s
Representative.
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10.2.3 If a dispute or disagreement cannot be resolved through Design-Builder’s Representative
and City’s Representative, Design-Builder’s Senior Representative and City’s Senior
Representative, upon the request of either party, shall meet as soon as conveniently
possible, but in no case later than thirty (30) days after such a request is made, to attempt
to resolve such dispute or disagreement. Prior to any meetings between the Senior
Representatives, the Parties will exchange relevant information that will assist the Parties
in resolving their dispute or disagreement.
10.2.4 If after meeting, the Senior Representatives determine that the dispute or disagreement
cannot be resolved on terms satisfactory to both parties, the Parties shall submit the
dispute or disagreement to non-binding mediation. The mediation shall be conducted by
a mutually agreeable impartial mediator, or if the Parties cannot so agree, a mediator
designed by the American Arbitration Association (“AAA”) pursuant to its Construction
Industry Mediation Rules. The mediation will be governed by and conducted pursuant to
a mediation agreement negotiated by the Parties or, if the Parties cannot so agree, by
procedures established by the mediator.
10.3 Arbitration
10.3.1 Any claims, disputes or controversies between the Parties arising out of or relating to the
Agreement, or the breach thereof, which have not been resolved in accordance with the
procedures set forth in Section 10.2 above shall be decided by arbitration in accordance
with the Construction Industry Arbitration Rules of the AAA then in effect, unless the
Parties mutually agree otherwise.
10.3.2 The award of the arbitrator(s) shall be final and binding upon the Parties without the right
of appeal to the courts. Judgment may be entered upon it in accordance with applicable
law by any court having jurisdiction thereof.
10.3.3 Design-Builder and City expressly agree that any arbitration pursuant to this Section 10.3
may be joined or consolidated with any arbitration involving any other person or entity (i)
necessary to resolve the claim, dispute or controversy, or (ii) substantially involved in or
affected by such claim, dispute or controversy. Both Design-Builder and City will
include appropriate provisions in all contracts they execute with other parties in
connection with the Project to require such joinder or consolidation.
10.3.4 The prevailing party in any arbitration, or any other final, binding dispute proceeding
upon which the Parties may agree, shall be entitled to recover from the other party
reasonable attorneys’ fees and expenses incurred by the prevailing party.
10.4 Duty to Continue Performance
10.4.1 Unless provided to the contrary in the Contract Documents, Design-Builder shall
continue to perform the Work and City shall continue to satisfy its payment obligations to
Design-Builder, pending the final resolution of any dispute or disagreement between
Design-Builder and City.
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Article 11
Stop Work and Termination for Cause
11.1 City’s Right to Stop Work
11.1.1 City may, without cause and for its convenience, order Design-Builder in writing to stop
and suspend the Work.
11.1.2 Design-Builder is entitled to an adjustment of the Contract Price and/or Contract Time(s)
if its cost or time to perform the Work has been adversely impacted by any suspension or
stoppage of work by City.
11.2 City’s Right to Perform and Terminate for Cause
11.2.1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers,
(ii) supply the materials required by the Contract Documents, (iii) comply with applicable
Legal Requirements, (iv) timely pay, without cause, Design Consultants or
Subcontractors, (v) prosecute the Work with promptness and diligence to ensure that the
Work is completed by the Contract Time(s), as such times may be adjusted, or (vi)
perform material obligations under the Contract Documents, then City, in addition to any
other rights and remedies provided in the Contract Documents or by law, shall have the
rights set forth in Sections 11.2.2 and 11.2.3 below.
11.2.2 Upon the occurrence of an event set forth in Section 11.2.1 above, City may provide
written notice to Design-Builder that it intends to terminate the Agreement unless the
problem cited is cured, or commenced to be cured, within seven (7) days of Design-
Builder’s receipt of such notice. If Design-Builder fails to cure, or reasonably commence
to cure, such problem, then City may give a second written notice to Design-Builder of
its intent to terminate within an additional seven (7) day period. If Design-Builder,
within such second seven (7) day period, fails to cure, or reasonably commence to cure,
such problem, then City may declare the Agreement terminated for default by providing
written notice to Design-Builder of such declaration.
11.2.3 Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, City may
enter upon the premises and take possession, for the purpose of completing the Work, of
all materials, equipment, scaffolds, tools, appliances and other items thereon, which have
been purchased or provided for the performance of the Work, all of which Design-
Builder hereby transfers, assigns and sets over to City for such purpose, and to employ
any person or persons to complete the Work and provide all of the required labor,
services, materials, equipment and other items. In the event of such termination, Design-
Builder shall not be entitled to receive any further payments under the Contract
Documents until the Work shall be finally completed in accordance with the Contract
Documents. At such time, if the unpaid balance of the Contract Price exceeds the cost
and expense incurred by City in completing the Work, such excess shall be paid by City
to Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes
a Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work
performed prior to its default. Design-Builder is only entitled to be paid for Work
performed prior to its default regardless of whether the Agreement establishes a
Guaranteed Maximum Price, whether a Guaranteed Maximum Price is established after
the Agreement, or whether the Work was performed on a fixed fee basis. If City’s cost
and expense of completing the Work exceeds the unpaid balance of the Contract Price,
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then Design-Builder shall be obligated to pay the difference to City. Such costs and
expenses shall include not only the costs of completing the Work, but also losses,
damages, costs and expense, including attorneys’ fees and expenses, incurred by City in
connection with the re-procurement and defense of claims arising from Design-Builder’s
default.
11.2.4 If City improperly terminates the Agreement for cause, the termination for cause will be
converted to a termination for convenience in accordance with the provisions of Section
11.3 of these General Conditions of Contract.
11.3 City’s Right to Terminate for Convenience
11.3.1 Upon ten (10) days written notice to Design-Builder, the City may, for its convenience
and without cause, elect to terminate the Agreement without liability to Design-Builder.
In such event, the City shall pay Design-Builder for the following:
.1 All labor and materials supplied to the Project up to the date of termination,
unpaid but earned portions of fees to Design-Builder, Subcontractors and Sub-
Subcontractors.
11.3.2 If the City terminates the Agreement pursuant to Section 11.3.1 above and proceeds to
design and construct the Project through its employees, agents or third parties, the City’s
right to use the Work Product shall be as set forth in Section 4.3 of the Agreement.
11.4 Design-Builder’s Right to Terminate for Cause
11.4.1 Design-Builder, in addition to any other rights and remedies provided in the Contract
Documents or by law, may terminate the Agreement for cause for the following reasons:
.1 The Work has been stopped for sixty (60) consecutive days, or more than ninety
(90) days during the duration of the Project, because of court order, any
government authority having jurisdiction over the Work, or orders by City under
Section 11.1.1 hereof, provided that such stoppages are not due to the acts or
omissions of Design-Builder or anyone for whose acts Design-Builder may be
responsible.
.2 City’s failure to provide Design-Builder with any information, permits or
approvals that are City’s responsibility under the Contract Documents which
result in the Work being stopped for sixty (60) consecutive days, or more than
ninety (90) days during the duration of the Project, even though City has not
ordered Design-Builder in writing to stop and suspend the Work pursuant to
Section 11.1.1 hereof.
11.4.2 Upon the occurrence of an event set forth in Section 11.4.1 above, Design-Builder may
provide written notice to City that it intends to terminate the Agreement unless the
problem cited is cured, or commenced to be cured, within thirty (30) days of City’s
receipt of such notice. If City fails to cure, or reasonably commence to cure, such
problem, then Design-Builder may give a second written notice to City of its intent to
terminate within an additional thirty (30) day period. If City, within such second thirty
(30) day period, fails to cure, or reasonably commence to cure, such problem, then
Design-Builder may declare the Agreement terminated for default by providing written
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notice to City of such declaration. In such case, Design-Builder shall be entitled to
recover in the same manner as if City had terminated the Agreement for its convenience
under Section 11.3 hereof.
11.5 Bankruptcy of City or Design-Builder
11.5.1 If either City or Design-Builder institutes or has instituted against it a case under the
United States Bankruptcy Code (such party being referred to as the “Bankrupt Party”),
such event may impair or frustrate the Bankrupt Party’s ability to perform its obligations
under the Contract Documents. Accordingly, should such event occur:
.1 The Bankrupt Party, its trustee or other successor, shall furnish, upon request of
the non-Bankrupt Party, adequate assurance of the ability of the Bankrupt Party
to perform all future material obligations under the Contract Documents, which
assurances shall be provided within ten (10) days after receiving notice of the
request; and
.2 The Bankrupt Party shall file an appropriate action within the bankruptcy court to
seek assumption or rejection of the Agreement within sixty (60) days of the
institution of the bankruptcy filing and shall diligently prosecute such action.
If the Bankrupt Party fails to comply with its foregoing obligations, the non-Bankrupt
Party shall be entitled to request the bankruptcy court to reject the Agreement, declare the
Agreement terminated and pursue any other recourse available to the non-Bankrupt Party
under this Article 11.
11.5.2 The rights and remedies under Section 11.5.1 above shall not be deemed to limit the
ability of the non-Bankrupt Party to seek any other rights and remedies provided by the
Contract Documents or by law, including its ability to seek relief from any automatic
stays under the United States Bankruptcy Code.
Article 12
Miscellaneous
12.1 Assignment
12.1.1 Neither Design-Builder nor City shall, without the written consent of the other, assign,
transfer or sublet any portion or part of the Work or the obligations required by the
Contract Documents. Any attempted assignment, transfer or sublet without such written
consent shall be void and confer no rights upon any third person and shall constitute a
default under the Contract Documents.
12.2 Successorship
12.2.1 Design-Builder and City acknowledge that the provisions of the Contract Documents are
binding upon the Parties, their employees, agents, heirs, successors and assigns.
12.3 Governing Law
12.3.1 The Agreement and all Contract Documents shall be governed by the laws of the state of
California.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
12.4 Severability
12.4.1 If any provision or any part of a provision of the Contract Documents shall be finally
determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any
applicable Legal Requirements, such determination shall not impair or otherwise affect
the validity, legality, or enforceability of the remaining provision or parts of the provision
of the Contract Documents, which shall remain in full force and effect as if the
unenforceable provision or part were deleted.
12.5 No Waiver
12.5.1 The failure of either Design-Builder or City to insist, in any one or more instances, on the
performance of any of the obligations required by the other under the Contract
Documents shall not be a construed as a waiver or relinquishment of such obligation or
right with respect to future performance.
12.6 Headings
12.6.1 The headings used in these General Conditions of Contract, or any other Contract
Document, are for ease of reference only and shall not in any way be construed to limit or
alter the meaning of any provisions.
12.7 Notice
12.7.1 Whenever the Contract Documents require that notice be provided to the other party,
notice will be deemed to have been validly given (i) if delivered in person to the
individual intended to receive such notice, (ii) four (4) days after being sent by registered
or certified mail, postage prepaid to the address indicated in the Agreement or (iii) if
transmitted by facsimile, by the time stated in a machine generated confirmation that
notice was received at the facsimile number of the intended recipient.
12.8 Amendments
12.8.1 The Contract Documents may not be changed, altered, or amended in any way except in
writing signed by a duly authorized representative of each party.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
Exhibit B
SCOPE OF WORK/SERVICES
REQUEST FOR PROPOSALS FOR DESIGN-BUILD SERVICES FOR EVALUATION,
ANALYSIS, RECOMMENDATION, DESIGN, AND INSTALLATION OF STAGE
LIGHTING DIMMER CONTROL UPGRADES AT THE CITY OF PALO ALTO
CUBBERLEY COMMUNITY THEATER CIP PROJECT CC-09001
BACKGROUND
The Cubberley Community Theater is located at 4000 Middlefield Road, Palo Alto. The
existing lighting control system was installed in the early 1980s and is outdated and in
need of renovation.
Design-Build Delivery
The delivery method for this project is “design-build”. This method for contracting by an
entity under a single contract of responsibility with an owner for both design and
construction, where services within the scope of the practice of professional engineering
as defined by the laws of the State of California, are performed by an engineer duly
registered in the State of California; and where services within the scope of construction
contracting, as defined by the laws of the State of California, are performed by a
contractor qualified and licensed under the applicable statues.
A. System Overview
The scope of work provided by this Agreement canvases the tasks associated
with the (1) removal of the existing dimmer system and patch bay, (2) the
purchase and installation of a new dimmer system and pass-through electrical
panel, and (3) replacement of the existing three-phase 300 amp fused service
and conductors feeding it with a 300 amp circuit breaker system compatible with
the rest of the facilities. The new dimmer system must be digital (as opposed to
the existing analog dimmers) and capable of one-to-one soft patching via the
existing ETC lighting control console.
Alternately, it may very well be that new dimmers alone will not function with the
remainder of the existing lighting system given both the power restrictions and
the conversion from analog to digital equipment. The design-build vendor should
then specify and install newer lighting technologies and alternative
dimming/lighting combinations that will more effectively conserve energy and
meet the needs of the theater.
The Contractor shall notify the City in writing within five (5) business days if and
when they discover any condition that will affect the contract amount or project
completion date.
B. Installation Requirements and Specifications
The installation of the system must be completed in a manner such that the
functionality of other theatre systems (e.g., sound effects system) is not
negatively affected. The system shall not be installed in a manner that
compromises the functionality or aesthetics of the facility. This project is
comprehensive in nature, and thus, it is mandatory that Contractor furnishes and
installs a complete and operational dimmer system and pass-through electrical
panel. All system components must be fully installed and in working order, and
work will not be deemed complete until the Project Manager (or other authorized
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
City representative) signs off and verifies system functionality.
Contractor shall uninstall and remove the existing equipment from the facility; the
City shall retain possession of all components of the old system.
Appendix 1 contains the current circuit diagram; circuits notated D-## are direct-to-
dimmer circuits; the remainder go through the patch bay.
The existing dimmers (Teatronics Genesis) shall be replaced with ETC Sensor
dimmers (or equivalent). The facility is currently wired for ETCNet and DMX;
replacement dimmers should use these protocols, too.
The existing patch bay shall be demolished, and the number of dimmers shall be
increased to reach 1-to-1 equivalence with the number of circuits. Existing
dimmer-controlled circuits may be replaced with DMX-dimmable lighting
instruments, with appropriate control and power infrastructure (or similar flexible
dimming equipment).
The existing houselights control shall be replaced, or bridged to new dimmers.
The existing fused disconnect and conductors shall be replaced with a new
circuit breaker disconnect of same amperage and conductors.
Appendix 2 contains manufacturer cut sheets for preferred equipment to be
supplied for this project.
C. Provision of Supplies, Materials, and Equipment
This RFP is inclusive of both parts and labor. All dimmer and lighting system
components (or their substitutes) identified in Section B of this scope of services
shall be sourced and provided by the winning bidder. Accordingly, bids should
be all-inclusive.
D. Scheduling and timing of installation of dimming and lighting system
The aforementioned dimming and lighting system shall be installed within the
period of 09/09/2013 and 10/16/2013. It is imperative that all procurement,
preparation, and planning activities sufficiently in advance of this installation
timeframe. This installation frame is critical because the facility has planned
usage during other dates. If this timeframe cannot be adhered to, bidders are
advised against submitting bids. In any case, bids should clearly state that the
vendor can perform the work during this period. Any change to these dates
requires the City’s express approval.
During this installation period, and any other occasions upon which the
Contractor must visit the Cubberley Community Theatre, work hours shall be
restricted to 7:30 a.m. through 4 p.m., Monday through Friday, excluding City
holidays. Any other work shifts, such as weekends, holidays or changes in work
hours, must be approved in writing by the Project Manager at least 48 hours in
advance and with no additional compensation.
E. Additional terms governing dimming and lighting system installation services
Pre-installation inspection: Contractor shall inspect areas in which work will be
performed, prior to commencement of work. Contractor shall prepare a listing of
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
damage to structure, surfaces, or equipment that could be misconstrued as
damage resulting from the work. Please photograph or videotape existing
conditions, as necessary, to document conditions.
Warranty: The Contractor shall guarantee all labor, workmanship, and materials
associated with the installation for a period of two years following the City’s final
acceptance of the work. This warranty does not include installed products and
equipment that are covered by manufacturer or supplier warranty, but does
include incidental supplies/materials provided by the Contractor for the
installation (e.g., rigging materials, cable-concealing pipes, etc.). During this two
year period, Contractor shall provide labor and materials required to repair or
replace defects at no cost to the City.
Governing Standards and Codes: The following standards and codes shall be
adhered to:
All applicable Local and State codes and regulations
Standards outlined within these contract documents
All applicable ANSI/EIA/TIA standards
National Electric Code (NEC)
National Fire Protection Association (NFPA)
APS low voltage tech spec
Installation Protocol: All work shall be coordinated with the Project Manager, or
other designated City representative.
Contractor shall be responsible for repair of any and all damage caused during
the work.
Before ordering installation materials or doing any project work, Contractor shall
verify all measurements and be responsible for correctness of installation. No
extra charge or compensation will be allowed for duplicate work or material
required because of unverified differences between actual and planned
dimensions. Any discrepancies bearing substantial cost implications shall be
submitted in writing for consideration before proceeding with the project work.
Contractor shall comply with manufacturer's recommendations, procedures and
standards for the assembly and operation of the systems. This includes following
all manufacturer installation recommendations for all equipment, hardware,
materials and cables. Contractor shall submit a written recommendation to the
Project Manager should they deem that deviation from these published
recommendations is warranted.
Failure to follow appropriate guidelines for installation of the system will require
the Contractor to provide, in a timely fashion, the additional material and labor
necessary to rectify the situation.
Upon completion of the work, the contractor must demonstrate acceptable
system performance, in the presence of the Project Manager and other City
representatives.
Contractor shall provide any and all software, manuals, and other documentation
to the Project Manager at the completion of the project.
Fire Code and Fire Safety Requirements: If a new penetration or modification
is required of the facility, Contractor shall stop all work and apprise the Project
Manager. All penetrations and alterations to the building/facility are strictly
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
controlled to meet or exceed the existing fire codes and fire safety requirements.
Final electronic “as-built” diagram documents shall be provided to the City based
on standards developed by and between the Contractor and Project Manager.
Contractor shall furnish all documents prior to final payment.
F. Tasks
The Contractor shall perform the following tasks, at a minimum, as part of the design-build
for this Project:
1. The Contractor shall survey the existing conditions including the lighting and
lighting control (dimmers, patch bay, and houselights) along with the electrical
system supplying the equipment.
2. The Contractor shall provide alternate solutions for replacement of the
existing dimmers/patch bay or entire system along with cost and justification
for each recommendation.
3. The Contractor shall prepare plans and specifications and obtain a building
permit from the City of Palo Alto Planning, Building and Fire Department.
4. The Contractor shall uninstall and remove the existing equipment from the
facility; the City shall retain possession of all components of the old system.
5. The Contractor shall furnish and install a complete and operational dimmer
system and pass-through electrical panel. All system components must be
fully installed and in working order, and work will not be deemed complete
until the Project Manager (or other authorized City representative) signs off
and verifies system functionality. This project should have no effect on
external (i.e., non-lighting) systems. Thus, the installation of the system must
be completed in a manner such that the functionality of other theatre systems
(e.g., sound effects system, monitoring system, non-lighting electrical
systems) is not negatively affected. The system shall not be installed in a
manner that compromises the functionality or aesthetics of the facility.
G. Meetings and Reimbursables
The cost of meeting with staff and outside agencies is considered as included in this
proposal. Reimbursable expenses, such as travel, permits, telephone and computer
costs, copying and other administrative costs are considered as included in this
proposal.
H. Hazardous Materials
No hazardous material removal is anticipated for this site. If, however, testing or
removal is required, the Contractor may be authorized to proceed with this work at a
price to be negotiated between City and Contractor. Authorization from the City shall be
in writing, prior to any work being performed.
I. Additional Services
Additional services may include, but are not limited to: additional construction work due
to unforeseen underground conditions, changes to the scope that trigger additional
costs, etc. Approval of Additional Services by the City shall be authorized in advance, in
writing.
J. Duration
The dimmer and lighting system shall be tested and ready for use prior to 10/16/2013.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
Attachment B
Appendix 1 – Reference Plans
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City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
Attachment B
Appendix 2 – Preferred Equipment
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ETC Senso~+ Racks
Sensor+ Series
SPECIFICATIO NS ADDI TIONAL INFORMATION
GENERAL Compatible Dimmer Modules
• Radl availaDie in foul sOzes SR;' 6modultos,12dimm ... ma";room SENSOR STANDARD NODULES
• $R12+ 12 modu~. 2~ djm~ mal<imum MODEL OES(lIIPTlON • 5R24+ 24 moduIe~. 43 dimmers l'!Wtimum
• SR~8+ 48 mod .... es. 96 dimmers m<OOmum 01S1020 Dual lSA120A [);mmer Module -350jJS · Dual dtoO$ity (two dimmers pt, modlllel, single d~ty ....:I Q1SEI020e O",,11SA12OA [);mmer Moduk!-500pS hal( dMlity dimrne< I'I"ICdJII!5 aViilable · Operoting tempera1l.O'e: ().4{)"( f n·l()4"f ,-S;~SOAomrTll!<Module -500¢-Af
Dimmer """'" !iVAC ~1emS must at all tirr>6 rmint.,;n 0100AF' Hill! l00A Oimmer Mod.Ile SOC:l\,6-Af 1~ !1)«ifie<J ~mbient l1!"'I)!!'~Wre al t~ dimlN'< (..;k
Dimming 5~tem5 oper;l1ir.g within 10 d~fEfl F of me SENSOR SPECIAL PURPOSE MODULES
uwer or lowe< ~ralure limits mtlS! sttiClI)o follow U' Dual lOA Low Wattig@ Dirrmer Module ins!allation and Ojlefation guideijoes to operal~ reliably.
• Relat .... humidity: 3()'90% non<ondensir.g UN Single IDA low Wattage fl..omo:enl
• All raru Uland cUlllSTED Oimm~, Mod<k
• UL924 LlSTIO for B)PaSSoperation
MECHANICAL D15FI02Of Sill4]1e 15A12OA Fluorescent Dimmer Modul~
· Rugged 16-gauge Itffl CI.lrntructioo Rt5lR20 Dual 15A12OA R~"Y Modulo
• Fil1~"text\Jred" \O'~Id>-,6istlOt. epoxy paint ((15JC(20 Oual15A12OA CCl<lnilflt Ciftuit 6'eoli<e, Module • SR6+ 30d SR12+ uses wall mount imUlll.1tioo
• SR24+ Colrl bewail o,pcde\~ mounted MM Ail; Flew Module
• SR48+ is flO(), m(lumed ·1"if.<Iornity""'""'"''''''twl""","~sI<r~ • TOIl arod bottom rooduit access through rem<lV,v;!e pol""'!
(SI<48+) IY lro:Xl<oua (SR&<-. SRI2+. and SR24+) · No tools required lor module removal 01 in~tallation Control Modules · Keyed module slots Prellel1t io5enion of inapp'''I=riate
mod,Je typeS I MODEL I DESCRIPTION I · Front ~s to all wiring and te,mina\'oons I CEM+ · Full height Iockiog doot Cootrol Ek!ruonics Module. · Elettmstatic ~ir fi~e' easily .. rn<I'I'f.'d lrom door 101
periodic ck>armg load Wiring lug Capadty • High tlficlerrcy cooling systtm with a·,llow sensor
• HighYisibility LED ~a1lJ'; tN.",oo CONNECTION WIRE SIZE ELECTRICAL · SR6+. SRI2+ and SR24+ ac::~ tOA. tSA.20A,olrldSOAkJgs 4 AWG M!.>t (I6mm'l
" lhree~lllY208VAC lOOA Iu<p 2/0 Ma.. SirlQle ph.>\.(' 12M40 vI>!:. · SR48. accl!!lU
" lhrl!e Dhas<! 1201208 VI\( Primary feed Lug Capacity · Uno> lto>d frKjUO!I'ICifS Irom 47-63Hz · line ft!!d '*'OItage rilflge i5 g).t40 VAC CONNEcnON WIRE SIZE · Load lefmiroals accept up to f4 AWG (16mm') "";"'1"-'<' charQ · Short Circuit Current Rating' 100.000A RMS sym-netticai "", Du!oI600 lQ"\'lil_2 AWe
o 24OVA( SR24+ Dual 350 k.cmiI -4 AWG • Au';li.!ry CQuipment ri!d:.5 and O.Jstom <Wi1chgurldistrlbution
""ail~ ((,)/1 H( lor ~UliI.s) SRI2 .. Dual 250 1<cT.i1_6 AWG
ONTROl ElECTRONICS "o. Single 2/0-t4 AWG · Ser&l"+ Corwol Ele-ctrooics Module ((EM"I
,
· Single Etllernet contfQ1 sigm! input · 1Wo OMX512 inputs Sound Pressure Level (dBA) · Slaod.vd diag~tic repOiting via browwr.JJas.ed interface Of
O>mS13! ~ftw¥e MOOH dBA .1000H~ (1kHz)" · Suppcrts Oiml"O'lff Doubli"9~ · Suppcrts SmartUN<-cont!QI of PrMets WITH"" WITH SSSh"
IONS '''', 37.0 30.9
• Advanced FNW""~ dimmer-sPKific load and di<gfl(}\tic SR24+ ." 34.0 ~ng · Amp. Trap· fuses to allow feeding Individual rack! from SR12+ 41.8 33.8
oversi,e mains "o. 26.0 2t.4 · Bus l its available · l/ibratoo reduction kJts ",,"'able for all racks • .......... r.. __ IocI. .......... "' ........ """_drtpnpo<1'''"' ..... · SmarU.inl: P\:Iwef Board _ .... 'M90.
· Smarttink TimeCkx.t
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City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
EXHIBIT C
SCHEDULE OF PERFORMANCE
Milestone: Approx. Date:
Design/Construction Phase ( 21 days)
Award of contract August 19, 2013
Design Start- Notice to Proceed August 26, 2013
Notice of Completion October 17, 2013
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
EXHIBIT D
COMPENSATION
The City agrees to compensate Design-Builder for professional services performed in accordance
with the terms and conditions of this Agreement, and as set forth in the budget schedule below.
Compensation shall be calculated based on the hourly rate schedule attached as Exhibit C up to the
not to exceed budget amount for each task set forth below.
The compensation to be paid to Design-Builder under this Agreement for all services described in
Exhibit A (“Services”) and reimbursable expenses shall not exceed one hundred twenty thousand
dollars ($120,000.00). Design-Builder agrees to complete all Services, including reimbursable
expenses, within this amount. In the event City authorizes any Additional Services, the maximum
compensation shall not exceed twelve thousand dollars ($12,000.00). Any work performed or
expenses incurred for which payment would result in a total exceeding the maximum amount of
compensation set forth herein shall be at no cost to City.
Design-Builder shall perform the tasks and categories of work as outlined and budgeted below. The
City’s Representative may approve, in writing, the transfer of budget amounts between any of the
tasks or categories listed below provided the total compensation for the Services, including
reimbursable expenses, does not exceed $120,000 and the total compensation for Additional
Services does not exceed $12,000.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
Exhibit E-1
CONTRACTOR’S PERFORMANCE SURETY BOND
WHEREAS, the City Council of the City of Palo Alto, State of California
(“City”) and , (“Principal”) have entered into an agreement dated
, and identified as , which is hereby referred to and made a part hereof
whereby Principal agrees to install and complete certain designated public improvements;
and
WHEREAS, Principal is required under the terms of said agreement to furnish a
surety bond for the faithful performance of said agreement.
NOW, THEREFORE, Principal and
_______________________________________________, as Surety, incorporated under
the Laws of the State of , and duly authorized to transact business as an admitted
surety, under the Laws of the State of California, are held and firmly bound unto City in
the penal sum of dollars ($ ), for the payment whereof Principal and Surety
bind themselves, their heirs, executors, administrators, successors, and assigns, jointly
and severally, firmly by these presents.
The condition of this obligation is such that if the Principal, Principal’s heirs, executors,
administrators, successors, or assigns shall promptly and faithfully keep and perform the
covenants, conditions, and provisions of the above-mentioned agreement and any
alteration thereof, with or without notice to the Surety, and if Principal shall satisfy all
claims and demands incurred under such agreement and shall fully protect, indemnify,
defend, and hold harmless City, its officers, agents, and employees from all claims,
demands, or liabilities which may arise by reason of Principal’s failure to do so, and shall
reimburse and repay City all outlay and expenses which City may incur in making good
any default, then this obligation shall be null and void; otherwise, it shall remain in full
force and effect.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
As part of the obligations secured hereto, and in addition to the face amount specified
therefore, there shall be included costs and reasonable expenses and fees, including
reasonable attorney’s fees incurred by City in successfully enforcing such obligations, all
to be taxed as costs and included in any judgment rendered. Surety shall be liable for any
liquidated damages for which the Principal may be liable under its agreement with the
City, and such liquidated damages shall be part of the obligations secured hereto, and in
addition to the face amount specified therefore.
The Surety hereby stipulates and agrees that no change, extension of time, alteration, or
addition to the terms of the agreement or to the work to be performed thereunder or the
specifications accompanying the same, shall in any way affect its obligations on this
security, and it does hereby waive notice of any such change, extension of time,
alteration, or addition to the terms of the agreement or to the work or to the
specifications. Surety hereby waives the provisions of California Civil Code Section
2845 and 2849. The City is the principal beneficiary of this bond and has all rights of a
party hereto.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
IN WITNESS WHEREOF, this instrument has been duly executed by the
Principal Surety above named on _______________, 20_____.
Phone Number:
Name of Surety
Signature of Surety
By: Its:
Typed or Printed Name Title
Name of Contractor/Principal
Signature of Contractor/Principal
By: Its:
Typed or Printed Name Title
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
COUNTY OF )
On , before me, , a notary public in
and for said County, personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
Exhibit E-1b
SUBCONTRACTOR’S PERFORMANCE SURETY BOND
WHEREAS, the City Council of the City of Palo Alto, State of California
(“City”) and , (“Principal”) have entered into an agreement dated
, and identified as , which is hereby referred to and made a part hereof
whereby Principal agrees to install and complete certain designated public improvements;
and
WHEREAS, Principal is required under the terms of said agreement to furnish a
surety bond for the faithful performance of said agreement.
NOW, THEREFORE, Principal and
_______________________________________________, as Surety, incorporated under
the Laws of the State of , and duly authorized to transact business as an admitted
surety, under the Laws of the State of California, are held and firmly bound unto City in
the penal sum of dollars ($ ), for the payment whereof Principal and Surety
bind themselves, their heirs, executors, administrators, successors, and assigns, jointly
and severally, firmly by these presents.
The condition of this obligation is such that if the Principal, Principal’s heirs, executors,
administrators, successors, or assigns shall promptly and faithfully keep and perform the
covenants, conditions, and provisions of the above-mentioned agreement and any
alteration thereof, with or without notice to the Surety, and if Principal shall satisfy all
claims and demands incurred under such agreement and shall fully protect, indemnify,
defend, and hold harmless City, its officers, agents, and employees from all claims,
demands, or liabilities which may arise by reason of Principal’s failure to do so, and shall
reimburse and repay City all outlay and expenses which City may incur in making good
any default, then this obligation shall be null and void; otherwise, it shall remain in full
force and effect.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
As part of the obligations secured hereto, and in addition to the face amount specified
therefore, there shall be included costs and reasonable expenses and fees, including
reasonable attorney’s fees incurred by City in successfully enforcing such obligations, all
to be taxed as costs and included in any judgment rendered. Surety shall be liable for any
liquidated damages for which the Principal may be liable under its agreement with the
City, and such liquidated damages shall be part of the obligations secured hereto, and in
addition to the face amount specified therefore.
The Surety hereby stipulates and agrees that no change, extension of time, alteration, or
addition to the terms of the agreement or to the work to be performed thereunder or the
specifications accompanying the same, shall in any way affect its obligations on this
security, and it does hereby waive notice of any such change, extension of time,
alteration, or addition to the terms of the agreement or to the work or to the
specifications. Surety hereby waives the provisions of California Civil Code Section
2845 and 2849. The City is the principal beneficiary of this bond and has all rights of a
party hereto.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
IN WITNESS WHEREOF, this instrument has been duly executed by the
Principal Surety above named on _______________, 20_____.
Phone Number:
Name of Surety
Signature of Surety
By: Its:
Typed or Printed Name Title
Name of Contractor/Principal
Signature of Contractor/Principal
By: Its:
Typed or Printed Name Title
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
COUNTY OF )
On , before me, , a notary public in
and for said County, personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
Exhibit E-2
CONTRACTOR’S PAYMENT (LABOR AND MATERIALS) SURETY BOND
WHEREAS, the City Council of the City of Palo Alto, State of California
(“City”) and , (“Principal”), have entered into an agreement dated
, and identified as (“Agreement”), which is hereby referred to and made a
part here of, whereby Principal agrees to install and complete certain designated public
improvements; and
WHEREAS, under the terms of said agreement, Principal is required before
entering upon the performance of the work to file a good and sufficient payment surety
bond with City to secure the claims to which reference is made in Title 15 (commencing
with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California.
NOW, THEREFORE, Principal and
________________________________________________, as Surety, incorporated
under the laws of the State of _______________________________, and duly authorized
to transact business as an admitted surety, under the Laws of the State of California, are
held and firmly bound unto City in the penal sum of dollars ($ ), this amount
being not less than one hundred percent of the total amount payable by the terms of the
Agreement per Civil Code section 3248(a), for the payment whereof Principal and Surety
bind themselves, their heirs, executors, administrators, successors, and assigns, jointly
and severally, firmly by these presents.
The condition of this obligation is such that if Principal, Principal’s
subcontractors, heirs, executors, administrators, successors, or assigns shall fail to pay
any of the persons, companies, or corporations, referred to in Section 3181 of the
California Civil Code, as amended, with respect to any work of labor performed or
materials supplied by any such persons, companies, or corporations, which work, labor,
or materials are covered by the above-mentioned agreement and any amendments,
changes, change order, additions, alterations, or modifications thereof, or any amounts
due under the California Unemployment Insurance Code with respect to such work or
labor, or for any amounts required to be deducted, withheld, and paid over to the
Employment Development Department from the wages of employees of the Principal and
its subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, as
amended, with respect to such work and labor, the Surety will pay for the same, in an
amount not exceeding the sum herein above specified, and also, in case suit is brought
upon this bond, the Surety will pay reasonable attorney’s fees in an amount to be fixed by
the court.
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
It is hereby expressly stipulated and agreed that this surety bond shall inure to the
benefit of any and all persons, companies, and corporations entitled named in Section
3181 of the California Civil Code, as amended, so as to give a right of action to them or
their assigns in any suit brought upon this surety bond.
The Surety hereby stipulates and agrees that no amendment, change, change
order, addition, alteration, or modification to the terms of the agreement of the work to be
performed thereunder or the specifications accompanying the same, shall in any way
affect its obligations on this surety bond, and it does hereby waive notice of any such
amendment, change, change order, addition, alteration, or modification to the terms of the
agreement or to the work performed thereunder or to the specifications accompanying the
same. Surety hereby waives the provisions of California Civil Code Sections 2845 and
2849.
IN WITNESS WHEREOF, this instrument has been duly executed by the Surety
and Principal above named on ______________, 20___.
Phone Number:
Name of Surety
Signature of Surety
By: Its:
Typed or Printed Name Title
Name of Contractor/Principal
Signature of Contractor/Principal
By: Its:
Typed or Printed Name Title
City of Palo Alto C14149800 08154\CPA_DB-agmt.doc
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
COUNTY OF )
On , before me, , a notary public in
and for said County, personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
Attachment F
INSURANCE REQUIREMENTS
Rev. 11/07
CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT
OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY COMPANIES
WITH AM BEST’S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE BUSINESS
IN THE STATE OF CALIFORNIA.
AWARD IS CONTINGENT ON COMPLIANCE WITH CITY’S INSURANCE REQUIREMENTS, AS SPECIFIED, BELOW:
REQUIRED TYPE OF COVERAGE REQUIREMENT
MINIMUM LIMITS
EACH
OCCURRENCE AGGREGATE
YES
YES
WORKER’S COMPENSATION
EMPLOYER’S LIABILITY
STATUTORY
STATUTORY
YES
GENERAL LIABILITY, INCLUDING
PERSONAL INJURY, BROAD FORM
PROPERTY DAMAGE BLANKET
CONTRACTUAL, AND FIRE LEGAL
LIABILITY
BODILY INJURY
PROPERTY DAMAGE
BODILY INJURY & PROPERTY DAMAGE
COMBINED.
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
YES AUTOMOBILE LIABILITY,
INCLUDING ALL OWNED, HIRED,
NON-OWNED
BODILY INJURY
- EACH PERSON
- EACH OCCURRENCE
PROPERTY DAMAGE
BODILY INJURY AND PROPERTY DAMAGE,
COMBINED
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
YES
PROFESSIONAL LIABILITY,
INCLUDING, ERRORS AND
OMISSIONS, MALPRACTICE (WHEN
APPLICABLE), AND NEGLIGENT
PERFORMANCE
ALL DAMAGES $1,000,000
YES
THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND
EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY
RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND ITS
SUBCONSULTANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS’ COMPENSATION, EMPLOYER’S LIABILITY AND
PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS, OFFICERS, AGENTS,
AND EMPLOYEES.
I. INSURANCE COVERAGE MUST INCLUDE:
A. A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF
COVERAGE CANCELLATION; AND
B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR’S
AGREEMENT TO INDEMNIFY CITY.
C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY’S PRIOR APPROVAL.
II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE.
III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO “ADDITIONAL INSUREDS”
A. PRIMARY COVERAGE
Attachment F
INSURANCE REQUIREMENTS
Rev. 11/07
WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY
THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY
OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS.
B. CROSS LIABILITY
THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY SHALL NOT, FOR
THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER, BUT THIS ENDORSEMENT, AND
THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL LIABILITY OF THE COMPANY UNDER THIS
POLICY.
C. NOTICE OF CANCELLATION
1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE
NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY
(30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF PREMIUM,
THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE
THE EFFECTIVE DATE OF CANCELLATION.
NOTICES SHALL BE MAILED TO:
PURCHASING AND
CONTRACT ADMINISTRATION
CITY OF PALO ALTO
P.O. BOX 10250
PALO ALTO, CA 94303.
Resolution No. 9347
Resolution of the Council of the City of Palo Alto Authorizing the Use
of a Design-Build Project Delivery Method for the Design and
Installation of a Dimmer Replacement and Lighting System for
Cubberley Community Theater (CIP CC-09001)
RECITALS
A. The City's Cubberley Community Theater (the "Theater") is a revenue-generating
focal point for community events in Palo Alto.
B. The Theater's existing analog dimming lighting system, installed in 1985, is now
sorely outdated, its functionality and utility is questionable, replacement parts are
no longer available, and the upgrading to a digital soft-patch dimming system will
modernize the Theater's lighting system, address any potential safety hazards.
C. The replacement of the existing dimming system and requires highly specialized
knowledge in the electrical engineering of theatrical lighting systems, which City
staff lacks.
D. The successful installation of a new dimming system normally includes the design at
no additional cost;
E. Palo Alto Municipal Code ("PAMC") section 2.30.300 recognizes that public works
projects, which include the improvement of any public building, or part thereof,
after adoption of a resolution may use 'design-build' as an acceptable alternate
project delivery method, as this will allow staff to advertise the project with
sufficient information for a specialized contractor-designer team to finalize the
design and proPose a fee for the total project.
F. The term "design-build" is defined by California Public Contracts Code section
20133(c)(2) as "a procurement process in which both the design and the
construction of a project are procured from a single entity."
G. The award of any contract for the Cubberley diming lighting project will not involve
or require any funding by bonded indebtedness of the City or by assessment against
any particular property of the City.
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The Council ofthe City of Palo Alto RESOLVES as follows:
SECTION L Findings. The City Council finds and determines that each of the findings
set forth above are true and correct.
SECTION 2. Authorization for Design-Build Project Delivery Method. The Council
hereby determines that the findings noted above support the use ofa design-build project
delivery and solicitation method for the Dimmer System Replacement Project at the Cubberley
Community Theater.
SECTION 3. Criteria for Contract Award. City staff will select the design-build team
for contract award, using the following criteria:
II
II
II
II
II
II
II
II
(A) Quality and completeness of the proposal.
(B) Proposer's understanding ofthe scope of work outlined in the RFP.
(C) The proposer's stated work plan including: text, preliminary drawings, equipment
control strategies, etc.
(D) Quality of materials and equipment to be furnished, beyond what is required in the
proposal and on which the bid price was based.
(E) Any realistic and innovative ideas proposed.
(F) Evidence that the proposer can meet the schedule, such as from the description of
project management method or clarity of the work plan in terms of task detail and
interrelationship of the activities.
(G) Cost proposal.
(H) Staff experience on similar projects.
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SECTION 4. The replacement of the dimmer system at the Cubberley Community
Theater is categorically exempt from the California Environmental Quality Act (CEQA) pursuant
to Section 15301, "existing facilities".
INTRODUCED AND PASSED: June 17, 2013
AYES: BERMAN, BURT, HOLMAN, KLEIN, KNISS, PRICE, SCHARFF, SCHMID, SHEPHERD
NOES:
ABSENT:
ABSTENTIONS:
APPROVED AS TO FORM:
~ . ~
Senior Assistant City Attorney .
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