HomeMy WebLinkAboutStaff Report 2503-4382CITY OF PALO ALTO
CITY COUNCIL
Monday, October 06, 2025
Council Chambers & Hybrid
5:30 PM
Agenda Item
7.Approval of Construction Contract No. C26193446 with MP Nexlevel of California, Inc., in
the Amount Not-to-Exceed $13,600,187 and Authorization for the City Manager or Their
Designee to Negotiate and Execute Changes Orders Up to a Not-to-Exceed Amount of
$1,060,018 for a Total Not to Exceed Amount of $14,660,205 Over Three Years to Provide
Utility Trench and Substructure Installations; CEQA status: Exempt, CEQA Guidelines
Section 15301, 15302, and/or 15303; for Fiber-to-the-Premises work, Council Action on
This Item is Within the Scope of the Final Initial Study and Mitigated Negative Declaration
(IS/MND) for the Fiber-to-the-Premises Project, adopted on June 17, 2024.
City Council
Staff Report
From: City Manager
Report Type: CONSENT CALENDAR
Lead Department: Utilities
Meeting Date: October 6, 2025
Report #:2503-4382
TITLE
Approval of Construction Contract No. C26193446 with MP Nexlevel of California, Inc., in the
Amount Not-to-Exceed $13,600,187 and Authorization for the City Manager or Their Designee
to Negotiate and Execute Changes Orders Up to a Not-to-Exceed Amount of $1,060,018 for a
Total Not to Exceed Amount of $14,660,205 Over Three Years to Provide Utility Trench and
Substructure Installations; CEQA status: Exempt, CEQA Guidelines Section 15301, 15302, and/or
15303; for Fiber-to-the-Premises work, Council Action on This Item is Within the Scope of the
Final Initial Study and Mitigated Negative Declaration (IS/MND) for the Fiber-to-the-Premises
Project, adopted on June 17, 2024.
RECOMMENDATION
Staff recommends that the City Council:
1. Approve and authorize the City Manager or their designee to execute on-call
construction Contract No. C26193446 with MP Nexlevel of California, Inc. in an amount
not-to-exceed $13,600,187 (see Attachment A) to provide utility trenching and
substructure installations and;
2. Authorize the City Manager or their designee to negotiate and execute change orders
for related, additional but unforeseen work that may develop during the term in an
amount not-to-exceed $1,060,018 for a total not-to-exceed amount of $14,660,205 over
three years.
EXECUTIVE SUMMARY
Staff is requesting an authorized amount of $14,660,205 over the three-year contract
term, for MP Nexlevel of California, Inc., to provide on-call utility trenching and
substructure installation, labor and equipment. The contract total includes anticipated
labor and equipment costs, reimbursement of related materials and contingency
funding for related but unforeseen work that may develop during the contract term.
This contract provides for the routine work planned for electric and fiber operations,
maintenance and customer connections and expanded capacity for key capital projects
including but not limited to Foothills Rebuild for Wildfire Mitigation (EL-21001); and
Fiber-to-the-Premises (FO-24000).
BACKGROUND
ANALYSIS
Table 1: Summary of Bid Process
Bid Name/Number Utility Trench & Substructure Installation/
IFB 193446 (FY26-FY28)
IFB Issued April 7, 2025
Proposal Due May 21, 2025
# of Firms Notified 3,652
Total Days to Respond to IFB 44
Non-Mandatory Pre-Bid Meeting Yes
Number of Bids Received:1
Staff believe that due to prevailing market conditions and major construction works across the
state, contractors did not bid on this project due to the uncertain nature of the “on-call”
contract. Rebidding is not a viable option as it will significantly impact and delay on-going
customer connections, system improvement, electric grid modernization projects, and an
immediate need to maintain access to trenching and substructure contractors.
Under the contract structure, staff create a scope of work (task order) each time the
contractor’s services are needed, and the contractor provides a not-to-exceed quote based
upon their submitted bid prices. Staff must agree to the contractor’s quote and authorize the
work prior to the start of construction. Payment is made upon completion and acceptance of
the work, with payment made based upon the actual quantities competed in the field. Material
necessary to complete the installation of substructure (conduit, boxes, vaults, sand, slurry, etc.)
are either provided to the contractor by the City or the contractor is reimbursed their cost to
purchase the material including a 10% administration fee. Under the contract structure, no
minimum amount of work is required.
For customer-initiated work, trenching and substructure costs are reimbursed by the customer
through the customer connection charges. These costs do not contribute to electric ratepayer
expenses. Retention is not held for each individual task order as they have a limited scope and
construction duration.
Staff reviewed the single bid submitted by MP Nexlevel of California, Inc. (MP Nexlevel) and
recommend that the base bid of $10,600,187 submitted by MP Nexlevel be accepted and that
MP Nexlevel be declared the responsible bidder. In addition to the base bid, Staff is
recommending an additional $3,000,000 in the first year of the contract to complete the FTTP
pilot and Foothills Rebuild for wildfire mitigation (EL-21001). Staff previously awarded this work
to MP Nexlevel under the existing contract C22183580 expiring October 31. Due to delays in
the fiber hut installation, material lead time for FTTP related materials, and biological and
archaeological survey requirements within Midpeninsula’s open space, MP Nexlevel will not be
able to complete this work under the existing contract. Staff is proposing to disencumber the
remaining $3,500,000 in the original contract and reappropriate $3,000,000 to the new MP
Nexlevel contract. Staff anticipates completion of the Foothills Rebuild and infrastructure
necessary for FTTP pilot by early 2026. The City has contracted substructure work to MP
Nexlevel for over 10 years and has been able to complete several projects through their
services, most recently phases 1 – 4 of Foothills Undergrounding project.
FIBER-TO-THE-PREMISES UPDATE
Staff deployed a pilot to determine how to align electric grid modernization with FTTP to help
streamline utility engineering design and pole replacements and minimize noise disruption, and
construction activity in neighborhoods. Thus far, the pilot has been successful in consolidating
the type of work, sharing costs and resources when possible, and minimizing construction
activity and disruption in the neighborhoods.
FTTP Pilot Construction Update
FISCAL/RESOURCE IMPACT
Expected Contract Distribution by Fiscal Year
Description FY 2026 FY 2027 FY 2028 Total
Labor and Equipment $6,235,580 $3,365,003 $3,499,604 $13,100,187
Materials $166,000 $167,000 $167,000 $500,000
Contingency $340,158 $353,200 $366,660 $1,060,018
Total $6,741,738 $3,885,203 $4,033,264 $14,660,205
Contract Distribution by Project (WBS)
Project Split FY 2026 FY 2027 FY 2028 Total
EL-89028 – Elec Cust Connections 35%$1,646,365 $1,709,490 $1,774,636 $5,130,491
EL-98003 – Elec Sys Improvement 35%$1,646,364 $1,709,489 $1,774,636 $5,130,489
EL-21001 – Foothills Rebuild 6%$800,000 $0 $0 $800,000
FO-10000 – Fiber Cust Connections 3%$149,670 $155,408 $161,331 $466,409
FO-10001 – Fiber Sys Improvement 6%$299,339 $310,816 $322,661 $932,816
FO-24000 – Fiber-to-the-Premises 15%$2,200,000 $0 $0 $2,200,000
Total 100%$6,741,738 $3,885,203 $4,033,264 $14,660,205
The on-call work contemplated under this contract is either categorically exempt from the
California Environment Quality Act (CEQA) under California Code of Regulations Title 14,
sections 15301 (repair or maintenance of existing facilities), 15302 (replacement or
reconstruction of existing facilities) and/or 15303 (new construction or conversion of small
structures); additionally, for work related to City’s Fiber to the Premises (FTTP) project, Council
action on this item is within the scope of the Final Initial Study and Mitigated Negative
Declaration (IS/MND) for the Fiber-to-the-Premises Project, adopted on June 17, 2024.
Attachment A: MPNexlevel Contract, C26193446
:
Alan Kurotori, Director of Utilities
Staff: Terry Crowley, Assistant Director of Utilities, Electric Engineering and Operations
1
TASK ORDER CONSTRUCTION CONTRACT Rev. ____ 2023
TASK ORDER CONSTRUCTION CONTRACT
Contract No. C26193446
City of Palo Alto
On-Call Utility Trench & Substructure Installation Work
(2026-2029 Year Task Order Contract)
2 Rev. _____ 2023
TASK ORDER CONSTRUCTION CONTRACT
TASK ORDER CONSTRUCTION CONTRACT
TABLE OF CONTENTS
SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS……………………………………...…………..7
1.1 Recitals…………………………………………………………………………………………………………………….7
1.2 Definitions………………………………………………………………………………………………………………….7
SECTION 2 THE PROJECT………………………………………………………………………………………………………...9
SECTION 3 THE CONTRACT DOCUMENTS………………………………………………………………………………..8
3.1 List of Documents……………………………………………………………………………………….…….........8
3.2 Order of Precedence……………………………………………………………………………………………......9
SECTION 4 CONTRACTOR’S DUTY……………………………………………………………………………….…………..10
4.1 Contractor's Duties…………………………………………………………………………………………………..9
4.1.1 Work Performed………………………………………………………………………………………..9
4.1.2 Excavation………………………………………………………………………………………..9
4.1.3 Representative present………………………………………………………………………………………..9
4.1.4 Coordination………………………………………………………………………………………..9
4.1.5 Testing Lab………………………………………………………………………………………..9
4.2 On-Call Provision………………………………………………………………………………………………………9
4.2.1 Work performed………………………………………………………………………………………..9
4.2.2 Prior to issuing first Task Order…………………………………………………………………………………..9
4.2.3 Each Task Order………………………………………………………………………………………..10
4.2.4 Objections………………………………………………………………………………………..10
4.2.5 Aggregated Task Order……………………………………………………………………………………10
4.3 Guarantee to Repair Period……………………………………………………………………10
SECTION 5 PROJECT TEAM……………………………………………………………………………………………………..110
5.1 Contractor's Cooperation………………………………………………………………………………………..10
SECTION 6 TIME OF COMPLETION…………………………………………………………………………………….......10
6.1 Time Is of Essence…………………………………………………………………………………………………….12
6.2 Commencement of Work…………………………………………………………………………………………12
6.3 Contract Time…………………………………………………………………………………………………………..12
3 Rev. _____ 2023
TASK ORDER CONSTRUCTION CONTRACT
6.4 Liquidated Damages…………………………………………………………………………………………………12
6.4.1 Other Remedies……………………………………………………………………………………………………..12
6.5 Adjustments to Contract Time………………………………………………………………………………….1 2
SECTION 7 COMPENSATION TO CONTRACTOR……………………………………………………………….……….12
7.1 Maximum Compensation and Contract Sum……….…………………………………………….………12
7.2 Full Compensation……………………………………………………………………………………………………13
7.3 Payment……………………………………………………………………………………………………133
7.3.1 Task Order Compensation Amount………………………………………………………………………………13
7.3.2 Withholding……………………………………………………………………13
7.3.3 Withhold or deductions ……………………………………………………………………13
7.3.4 Section 9.7 Substantial Completion……………………………………………………………………13
SECTION 8 STANDARD OF CARE…………………………………………………………………………………….………..13
8.1 Standard of Care…………………………………………………………………………………..…………………13
SECTION 9 INDEMNIFICATION……………………………………………………………………………………………..…14
9.1 Hold Harmless……………………………………………………………………………………………..………….14
9.2 Survival………………………………………………………………………………………………………...…………14
SECTION 10 NON-DISCRIMINATION……..……………………………………………………………………...…………14
10.1 Municipal Code Requirement…………….………………………………..……………………..………….14
SECTION 11 INSURANCE AND BONDS.…………………………………………………………………………………14
11.1 Evidence of Coverage……………………………………………………………………….………………..14
SECTION 12 PROHIBITION AGAINST TRANSFERS…………………………………………………………….….…15
12.1 Assignment………………………………………………………………………………………….…………….15
12.2 Assignment by Law.……………………………………………………………………………………………15
SECTION 13 NOTICES ………………………………………………………………………………………………………….15
13.1 Method of Notice ………………………………………………………………………………………………15
13.2 Notice Recipents ……………………………………………………………………………………………….15
13.3 Change of Address……………………………………………………………………………………..……….16
SECTION 14 DEFAULT……………………………………………………………………………………….………………...16
14.1 Notice of Default………………………………………………………………………………………………….1 6
14.2 Opportunity to Cure Default…………………………………………………………………………………16
SECTION 15 CITY'S RIGHTS AND REMEDIES…………………………………………………………………………..17
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TASK ORDER CONSTRUCTION CONTRACT
15.1 Remedies Upon Default……………………………………………………………………………………….17
15.1.1 Delete Certain Services…………………………………………………………………………………….17
15.1.2 Perform and Withhold……………………………………………………………………………………..17
15.1.3 Suspend The Construction Contract……………………………………….…………………………1 7
15.1.4 Terminate the Construction Contract for Default………………………………………………17
15.1.5 Invoke the Performance Bond………………………………………………………………………….1 7
15.1.6 Additional Provisions……………………………………………………………………………………….1 7
15.2 Delays by Sureties……………………………………………………………………………………………….18
15.3 Damages to City…………………………………………………………………………………………………..1 8
15.3.1 For Contractor's Default…………………………………………………………………………………..1 8
15.3.2 Compensation for Losses……………………………………………….…………………………………18
15.4 Suspension by City……………………………………………………………………………………………….1 8
15.4.1 Suspension for Convenience……………………………………………………………………………..1 8
15.4.2 Suspension for Cause…………………………………………………..…………………………………..18
15.5 Termination Without Cause…………………………………………………………………………………1 9
15.5.1 Compensation………………………………………………………………………………………………….1 9
15.5.2 Subcontractors………………………………………………………………………………………………..19
15.6 Contractor’s Duties Upon Termination………………………………………………………………...19
SECTION 16 CONTRACTOR'S RIGHTS AND REMEDIES…………………….………………………………………20
16.1 Contractor’s Remedies……………………………………..………………………………..………………….20
16.1.1 For Work Stoppage……………………………………………………………………………………………20
16.1.2 For City's Non-Payment…………………………………………………………………………………….20
16.2 Damages to Contractor………………………………………………………………………………………..20
SECTION 17 ACCOUNTING RECORDS………………………………………………………………………………….…20
17.1 Financial Management and City Access………………………………………………………………..20
17.2 Compliance with City Request s…………………………………………………………………………….21
SECTION 18 INDEPENDENT PARTIES……………………………………………………………………………………..21
18.1 Status of Parties……………………………………………………………………………………………………21
SECTION 19 NUISANCE……………………………………………………………………………………………………….…21
19.1 Nuisance Prohibited……………………………………………………………………………………………..21
5 Rev. _____ 2023
TASK ORDER CONSTRUCTION CONTRACT
SECTION 20 PERMITS AND LICENSES…………………………………………….……………………………………….2 1
SECTION 21 WAIVER…………………………………………………………………….……………………….…………….22
SECTION 22 GOVERNING LAW AND VENUE; COMPLIANCE WITH LAWS………………..……………….22
22.1 Governing Law and Venue…………………………………………………………………………….………….22
22.2 Compliance with Laws…………………………………………………………………………………………22
22.2.1 Palo Alto Minimum Wage Ordinance…………….………………………………………………….22
SECTION 23 COMPLETE AGREEMENT……………………………………………………………………………………22
23.1 Integration………………………………………………………………………………………………………….22
SECTION 24 SURVIVAL OF CONTRACT…………………………………………………………………………………..22
24.1 Survival of Provisions…………………………………………………………………………….……………22
SECTION 25 PREVAILING WAGES………………………………………………………………………………………….22
SECTION 26 NON-APPROPRIATION……………………………………………………………………………………….23
26.1 Appropriation………………………………………………………………………………………………………23
SECTION 27 AUTHORITY……………………………………………………………………………………………………….23
27.1 Representation of Parties…………………………………………………………………………………….23
SECTION 28 COUNTERPARTS………………………………………………………………………………………………..23
28.1 Multiple Counterparts………………………………………………………………………………………….23
SECTION 29 SEVERABILITY……………………………………………………………………………………………………24
29.1 Severability………………………………………………………………………………………….…………….24
SECTION 30 STATUTORY AND REGULATORY REFERENCES ……………………………………….…………..24
30.1 Amendments of Laws…………………………………………………………………………….…………..24
SECTION 31 WORKERS’ COMPENSATION CERTIFICATION………………………………………..……….….24
31.1 Workers Compensation…………………………………………………………………….…………….24
SECTION 32 DIR REGISTRATION AND OTHER REQUIREMENTS…………………….………..…24
32.1 General Notice to Contractor……………………………………………………………………………….…….24
32.2 Labor Code section 1771.1(a)……………………………………………………………………………….…….24
32.3 DIR Registration Required……………………………………………………………………………….…………25
32.4 Posting of Job Site Notices; Compliance Monitoring……………………………………………………25
32.5 Payroll Records……………………………………………………………………………………………….…………25
32.5.1 Accurate payroll records…………………………………………………………………………….…………25
6 Rev. _____ 2023
TASK ORDER CONSTRUCTION CONTRACT
32.5.2 Payroll records verified…………………………………………………………………………….…………25
32.5.3 Certified payroll records available…………………………………………………………….…………25
32.5.4 Penalty for not producing records……………………………………………………………….…………25
32.5.5 Informing Project manager …………………………………………………………………………….…………25
32.6 Employment of Apprentices…………………………………………………………………………….…………26
7 Rev. _____ 2023
TASK ORDER CONSTRUCTION CONTRACT
TASK ORDER CONSTRUCTION CONTRACT
THIS TASK ORDER CONSTRUCTION CONTRACT (“Construction Contract”) entered into on August 18, 2025
(“Execution Date”) by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“City”),
and MP NEXLEVEL OF CALIFORNIA, INC. (“Contractor”), is made with reference to the following:
R E C I T A L S:
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California
with the power to carry on its business as it is now being conducted under the statutes of the State of California
and the Charter of City.
B. Contractor is a corporation duly organized and in good standing in the State of California, California
Contractor’s License Number 907019 and Department of Industrial Relations Registration Number 1000010357.
Contractor represents that it is duly licensed by the State of California and has the background, knowledge,
experience and expertise to perform the obligations set forth in this Construction Contract.
C. On April 7, 2025, City issued an Invitation for Bids (“IFB”) to contractors for the On-Call Utility Trench &
Substructure Installation Work (“Project”). In response to the IFB, Contractor submitted a Bid.
D. City and Contractor desire to enter into this Construction Contract for the Project, and other services as
identified in the Contract Documents for the Project upon the following terms and conditions.
NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set forth and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is
mutually agreed by and between the undersigned parties as follows:
SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS.
1.1 Recitals.
All of the recitals are substantive parts of this Construction Contract and are hereby incorporated herein by
reference.
1.2 Definitions.
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TASK ORDER CONSTRUCTION CONTRACT
Capitalized terms shall have the meanings set forth in this Construction Contract (sometimes referred to herein as
the “Contract”) and/or in the General Conditions. If there is a conflict between the definitions in this Construction
Contract and in the General Conditions, the definitions in this Construction Contract shall prevail. The following
definitions apply to this Construction Contract and the General Conditions, notwithstanding and superseding any
differing definitions in Article 1 of the General Conditions:
Acceptance: The point at the end of the Term (as defined in Section 2) when Contractor has fully performed
each Task Order in compliance with the Contract Documents and the Project as a whole is accepted by the
City in writing, including each Task Order which has been Conditionally Accepted.
Change Order: A duly authorized written instrument signed by the City or by the City and Contractor, which
operates to amend the scope of Work in a Task Order, and which also amends the Task Order Compensation
Amount or Contract Time.
Conditional Acceptance/Conditionally Accepted: The City’s provisional acceptance of a completed Task
Order, subject to final Acceptance of the Project at the end of the Term.
Contract Sum: The maximum amount of compensation stated in Section 7 of this Construction Contract
that is payable to Contractor for performance of the Work encompassed in the Task Orders issued by the
City for the performance of the Work in accordance with the Contract Documents, including adjustments
made by Change Order.
Contract Time: The total number of days set forth in a Task Order within which completion of the Task
Order Work, including any adjustments of time (increases or decreases) made by Change Order.
Field Order: A written instrument signed by the City or its Construction Manager that authorizes and directs
performance of the Work described therein, and which may or may not include adjustments (increase or
decrease) to the Task Order Compensation Amount or Contract Time.
Final Completion: Full completion of the Work required by a Task Order, including all punch list items and
submission of Record Documents, all to City’s satisfaction.
Final Payment: Final Payment of any undisputed amounts due to Contractor following Acceptance, less any
amounts withheld or offset pursuant to the Contract Documents, including, but not limited to, liquidated
damages, unreleased stop notices, amounts subject to setoff, up to 150% of unresolved third-party claims
for which Contractor is required to indemnify City, and up to 150% of any amounts in dispute as authorized
by Public Contract Code section 7107.
Task Order: A written directive issued by the City to the Contractor using the Task Order form attached as
Exhibit A-1 to this Construction Contract which specifies a scope of Work to be performed by the Contractor
as well as the time for commencement and completion of the Work and the Task Order Compensation
Amount, including any documents attached thereto or incorporated therein, and which may be modified
by Change Order.
Task Order Compensation Amount: The total amount payable to Contractor for satisfactory completion of
a Task Order in accordance with the Contract Documents.
Work: All labor, materials, equipment, services, permits, fees, licenses, and taxes, and all other things
necessary for Contractor to perform its obligations and complete a Task Order, including, without limitation,
any changes or additions requested by City, in accordance with the Contract Documents and all Applicable
Code Requirements.
9 Rev. _____ 2023
TASK ORDER CONSTRUCTION CONTRACT
SECTION 2 THE PROJECT.
The Project is located at various locations within Palo Alto, CA. The Project requires the Contractor to perform Work
as specified in any Task Order issued by the City from time to time over a 3-year period of time, beginning on the
Execution Date set forth above (the “Term”). In the event that the Work specified in any Task Order is not completed
by the expiration of the Term, the City, in its sole discretion, may elect to extend the Term until completion of the
Work and the City’s final Acceptance of the Project as a whole.
SECTION 3 THE CONTRACT DOCUMENTS.
3.1 List of Documents.
The Contract Documents (sometimes collectively referred to as “Agreement” or “Bid Documents”) consist of the
following documents which are on file with the City’s Purchasing Division and are hereby incorporated into this
Construction Contract by reference.
1) Change Orders
2) Field Orders
3) Construction Contract
4) Notice to Proceed
5) Bidding Addenda
6) Task Orders, and attachments thereto
7) Special Provisions
8) General Conditions
9) Project Plans and Drawings
10) Technical Specifications
11) Instructions to Bidders
12) Invitation for Bids
13) Contractor’s Bid and Non-Collusion Declaration
14) Reports listed in the Contract Documents
15) Public Works Department’s Standard Drawings and Specifications (most current version at time of
Bid)
16) Utilities Department’s Water, Gas, Wastewater, Electric Utilities Standards (most current version at
time of Bid)
10 Rev. _____ 2023
TASK ORDER CONSTRUCTION CONTRACT
17) City of Palo Alto Traffic Control Requirements
18) City of Palo Alto Truck Route Map and Regulations
19) Notice Inviting Pre-Qualification Statements, Pre-Qualification Statement, and Pre-Qualification
Checklist (if applicable)
20) Performance and Payment Bonds
3.2 Order of Precedence.
For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this
Contract, the Contract Documents shall have the order of precedence as set forth in the preceding section. If a
claimed inconsistency cannot be resolved through the order of precedence, the City shall have the sole power to
decide which document or provision shall govern as may be in the best interests of the City.
SECTION 4 CONTRACTOR’S DUTY.
4.1 Contractor’s Duties.
Contractor agrees to perform all of the Work required for the Project, as specified in the Contract Documents and
individual Task Orders, all of which are fully incorporated herein. Contractor shall provide, furnish, and supply all
things necessary and incidental for the timely performance and completion of the Work as specified in each Task
Order and in the Contract Documents, including, but not limited to, provision of all necessary labor, materials,
equipment, transportation, and utilities, unless otherwise specified in the Contract Documents. Contractor also
agrees to use its best efforts to complete the Work in a professional and expeditious manner and to meet or exceed
the performance standards required by the Contract Documents. Unless otherwise specified in a Task Order:
4.1.1 Work should be performed during normal work hours (Monday through Friday between 8 AM and
6 PM).
4.1.2 Each excavation must be fully restored within forty-eight (48) hours.
4.1.3 City representative shall be present to inspect Work performed and obtain necessary
measurements/survey data if applicable.
4.1.4 Contractor must coordinate with the City’s representative to schedule soil compaction testing
prior to pavement restoration.
4.1.5 Contractor shall anticipate up to 24-hour turn-around time for City’s contracted testing lab to
perform soil compaction testing.
4.2 On-Call Provision.
4.2.1 Work performed under the Contract will be performed within the Term, on an on-call basis, as
requested by the City from time to time, as needed, with a Task Order assigned and approved by the City’s
Project Manager. Each Task Order shall be in substantially the same form as Exhibit A-1.
4.2.2 Prior to issuing the first Task Order, the City will schedule a mandatory pre-construction meeting
with the Contractor, which will include review of the Task Order procedures and Project requirements.
11 Rev. _____ 2023
TASK ORDER CONSTRUCTION CONTRACT
4.2.3 Each Task Order shall designate a City Project Manager and shall contain a specific scope of Work,
a specific schedule of performance, and the Task Order Compensation Amount. Because each Task Order
will contain a specific schedule of performance, unless otherwise specified in a Task Order, the Construction
Schedule submittal requirements set forth in Section 3.10 (Schedules Required of Contractor) or in part
1.05 of Section 800 (Additional Provisions for Utilities Construction) of the Technical Specifications will not
apply to this Construction Contract.
4.2.3 Time is of the essence in completion of all Task Order Work. Therefore, Contractor must sign each
Task Order issued by the City and return it to the Project Manager in PDF form sent via email, as indicated
on the Task Order form, within 2 days of the issuance date shown on the Task Order.
4.2.4 If Contractor has any objections to or questions regarding a Task Order it must notify City of such
objections or questions promptly following receipt of the Task Order so any such issues may be resolved
without delaying the Work as scheduled. Contractor’s failure to timely comply with the requirements in this
paragraph will be deemed a material breach of this Construction Contract.
4.2.5 The aggregated Task Order Compensation Amount issued under this Construction Contract shall
not exceed the maximum Contract Sum set forth in Section 7, below. Contractor shall only be compensated
for Work performed under an authorized Task Order and the City may elect, but is not required, to authorize
Work up to the maximum Contract Sum set forth in Section 7.
4.3 Guarantee to Repair Period.
Notwithstanding any provision in the Contract Documents to the contrary, the one-year “Guarantee To Repair
Period” specified in Section 12.2 of the General Conditions (Correction of Defective Work and Guarantee to Repair
Period) will commence separately for each Task Order, beginning from the date of Conditional Acceptance by the
City of each Task Order. If Contractor fails to repair Defective Work within the applicable Guarantee To Repair Period,
the City may deduct its cost of having such Defective Work repaired from any payments otherwise due to Contractor.
SECTION 5 PROJECT TEAM.
5.1 Contractor’s Cooperation.
In addition to Contractor, City has retained, or may retain, consultants and contractors to provide professional and
technical consultation for the design and construction of the Project. The Contract requires that Contractor operate
efficiently, effectively and cooperatively with City as well as all other members of the Project Team and other
contractors retained by City to construct other portions of the Project.
SECTION 6 TIME OF COMPLETION.
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TASK ORDER CONSTRUCTION CONTRACT
6.1 Time Is of Essence.
Time is of the essence with respect to all time limits set forth in the Contract Documents, including each Task Order.
6.2 Commencement of Work.
Contractor shall commence the Work on the date specified in each Task Order, notwithstanding references
elsewhere in the Contract Documents to commencing Work on the date specified in the Notice to Proceed.
6.3 Contract Time.
Work hereunder shall begin on the date specified in each Task Order, and the specific work authorized by each
Task Order shall be completed no later than the time/schedule requirements specified therein, and in
conformance with the Contract Documents. By executing this Construction Contract, Contractor expressly waives
any claim for delayed early completion of any Task Order.
6.4 Liquidated Damages.
Pursuant to Public Contract Code Section 7203, if Contractor fails to achieve Final Completion of the entire Work
within the Contract Time specified in a Task Order, including any approved extensions thereto, City may assess
liquidated damages on a daily basis for each day of Unexcused Delay in achieving Final Completion of the Task
Order, based on the amount of Five Hundred Dollars ($500) per day, or as otherwise specified in the Special
Provisions. Liquidated damages may also be separately assessed for failure to meet milestones specified elsewhere
in the Contract Documents, regardless of impact on the time for achieving Final Completion. The assessment of
liquidated damages is not a penalty but considered to be a reasonable estimate of the amount of damages City will
suffer by delay in completion of the Work. The City is entitled to setoff the amount of liquidated damages
assessed against any payments otherwise due to Contractor, including, but not limited to, setoff against release of
retention. If the total amount of liquidated damages assessed exceeds the amount of unreleased retention, City is
entitled to recover the balance from Contractor or its sureties. Occupancy or use of the Project in whole or in part
prior to Final Completion, shall not operate as a waiver of City’s right to assess liquidated damages.
6.4.1 Other Remedies. City is entitled to any and all available legal and equitable remedies City may
have where City’s Losses are caused by any reason other than Contractor’s failure to achieve Final
Completion of the entire Work within the Contract Time specified in a Task Order.
6.5 Adjustments to Contract Time.
The Contract Time for each Task Order may only be adjusted for time extensions approved by City and
memorialized in a Change Order approved in accordance with the requirements of the Contract Documents.
SECTION 7 COMPENSATION TO CONTRACTOR.
7.1 Maximum Compensation and Contract Sum.
Contractor shall be compensated for the Task Order Compensation Amount specified in each Task Order for
satisfactory completion of the Work specified in that Task Order in compliance with the Contract Documents, but
the Contract Sum will not exceed Fourteen Million Six Hundred Sixty Thousand Two Hundred Five dollars
($14,660,205.00) for the Term.
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In addition, the total annual Task Order Compensation Amount may not exceed $<insert field>
during each year of the Term.
7.2 Full Compensation.
The Task Order Compensation amount, except as otherwise expressly permitted by the terms of the Contract
Documents, shall cover all Losses arising out of the nature of the Work or from the acts of the elements or any
unforeseen difficulties or obstructions which may arise or be encountered in performance of the Work required by
each Task Order until its Conditional Acceptance by City, all risks connected with the Work, and any and all expenses
incurred due to suspension or discontinuance of the Work, except as expressly provided herein. The Task Order
Compensation Amount may only be adjusted by a Change Order approved in accordance with the requirements of
the Contract Documents.
7.3 Payment.
Notwithstanding any conflicting or inconsistent provisions in the Contract Documents, including Article 9
(Payments and Completion) of the General Conditions, the following will apply to this Construction Contract:
7.3.1 The Task Order Compensation Amount will be based upon the unit prices set forth in the Bid
Schedule and not on a separate Schedule of Values.
7.3.2 The City will withhold five percent (5%) retention from each payment to Contractor. All
undisputed retention will be released to Contractor within sixty (60) days following:
The end of each one-year period during the Term, measured from the Execution Date.
Other: _______________________________________________________.
7.3.3 The City may also withhold or make deductions from payments otherwise due or to become due
to the Contractor as otherwise specified within the Contract Documents, including deductions for
liquidated damages or withholding for unreleased stop notices.
7.3.4 Section 9.7 (Substantial Completion) of the General Conditions will not apply to this Construction
Contract and all other references to “Substantial Completion” in the Contract Documents will be deemed
to mean “Final Completion,” as defined herein.
SECTION 8 STANDARD OF CARE.
8.1 Standard of Care.
Contractor agrees that the Work shall be performed by qualified, experienced and well-supervised personnel. All
services performed in connection with this Construction Contract shall be performed in a manner consistent with
the standard of care under California law applicable to those who specialize in providing such services for projects
of the type, scope and complexity of the Project.
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SECTION 9 INDEMNIFICATION.
9.1 Hold Harmless.
To the fullest extent allowed by law, Contractor will defend, indemnify, and hold harmless City, its City Council,
boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter individually
referred to as an “Indemnitee” and collectively referred to as “Indemnitees”), through legal counsel acceptable to
City, from and against any and liability, loss, damage, claims, expenses (including, without limitation, attorney fees,
expert witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, “Liability”) of every
nature arising out of or in connection with the acts or omissions of Contractor, its employees, Subcontractors,
representatives, or agents, in performing the Work or its failure to comply with any of its obligations under the
Contract, except such Liability caused by the active negligence, sole negligence, or willful misconduct of an
Indemnitee. Contractor shall pay City for any costs City incurs to enforce this provision. Except as provided in Section
9.2, below, nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in
favor of Contractor against City or any other Indemnitee.
Pursuant to Public Contract Code Section 9201, City shall timely notify Contractor upon receipt of any third-party
claim relating to the Contract.
9.2 Survival.
The provisions of Section 9 shall survive the termination or expiration of this Construction Contract.
SECTION 10 NON-DISCRIMINATION.
10.1 Municipal Code Requirement.
As set forth in Palo Alto Municipal Code section 2.30.510, Contractor certifies that in the performance of this
Agreement, it shall not discriminate in the employment of any person due to the race, skin color, gender, age,
religion, disability, national origin, ancestry, sexual orientation, pregnancy, genetic information or condition, housing
status, marital status, familial status, weight or height of such person. Contractor acknowledges that it has read and
understands the provisions of Section 2.30.510 of the Palo Alto Municipal Code relating to Nondiscrimination
Requirements and the penalties for violation thereof, and will comply with all requirements of Section 2.30.510
pertaining to nondiscrimination in employment.
SECTION 11 INSURANCE AND BONDS.
11.1 Evidence of coverage.
Within ten (10) business days following issuance of the Notice of Award, Contractor shall provide City with evidence
that it has obtained insurance and shall submit Performance and Payment Bonds satisfying all requirements in Article
11 of the General Conditions. Notwithstanding any conflicting or inconsistent provisions elsewhere in the Contract
Documents, the amount for each of the bonds must be based upon one hundred percent (100%) of the Contract
Sum, as defined in this Construction Contract.
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SECTION 12 PROHIBITION AGAINST TRANSFERS.
12.1 Assignment.
City is entering into this Construction Contract in reliance upon the stated experience and qualifications of the
Contractor and its Subcontractors set forth in Contractor’s Bid. Accordingly, Contractor shall not assign, hypothecate
or transfer this Construction Contract or any interest therein, including any Task Order, directly or indirectly, by
operation of law or otherwise without the prior written consent of City. Any assignment, hypothecation or transfer
without said consent shall be null and void, and shall be deemed a substantial breach of contract and grounds for
default in addition to any other legal or equitable remedy available to the City.
12.2 Assignment by Law.
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor
or of any general partner or joint-venturer or syndicate member of Contractor, if the Contractor is a partnership or
joint venture or syndicate or co-tenancy shall result in changing the control of Contractor, shall be construed as an
assignment of this Construction Contract. Control means more than fifty percent (50%) of the voting power of the
corporation or other entity.
SECTION 13 NOTICES.
13.1 Method of Notice.
All notices, demands, requests or approvals to be given under this Construction Contract shall be given in writing
and shall be deemed received on the earlier of the following:
(i) On the date delivered if delivered personally;
(ii) On the third business day after the deposit thereof in the United States mail, postage prepaid, and
addressed as hereinafter provided;
(iii) On the date sent if sent by facsimile transmission;
(iv) On the date sent if delivered by electronic mail; or
(v) On the date it is received by the recipient if sent by certified mail.
13.2 Notice to Recipients.
All notices, demands or requests (including, without limitation, Change Order Requests and Claims) from Contractor
to City shall include the Project name and the number of this Construction Contract and shall be addressed to City
at:
To City: City of Palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
Copy to: City of Palo Alto
Public Works Administration
250 Hamilton Avenue
Palo Alto, CA 94301
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TASK ORDER CONSTRUCTION CONTRACT
Attn:
[Include Construction Manager, If Applicable.]
_______________________________
_______________________________
_______________________________
_______________________________
City of Palo Alto
Utilities Engineering
250 Hamilton Avenue
Palo Alto, CA 94301
Attn: Jim Pachikara
In addition, copies of all Claims by Contractor under this Construction Contract shall be provided to the following:
Palo Alto City Attorney’s Office
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, California 94303
All Claims shall be sent by registered mail or certified mail with return receipt requested.
All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at:
To Contractor:
MP Nexlevel of California, Inc.
500 County Road 37 East
Maple Lake, MN 55358
Attn: Felicia Brezinka
13.3 Change of Address.
In advance of any change of address, Contractor shall notify City of the change of address in writing. Each party may,
by written notice only, add, delete or replace any individuals to whom and addresses to which notice shall be
provided.
SECTION 14 DEFAULT.
14.1 Notice of Default.
In the event that City determines, in its sole discretion, that Contractor has failed or refused to perform any of the
obligations set forth in the Contract Documents, including any Task Order, or is in breach of any provision of the
Contract Documents, City may give written notice of default to Contractor in the manner specified for the giving of
notices in the Construction Contract, with a copy to Contractor’s performance bond surety.
14.2 Opportunity to Cure Default.
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Except for emergencies, Contractor shall cure any default in performance of its obligations under the Contract
Documents within two (2) Days (or such shorter time as City may reasonably require) after receipt of written notice.
However, if the breach cannot be reasonably cured within such time, Contractor will commence to cure the breach
within two (2) Days (or such shorter time as City may reasonably require) and will diligently and continuously
prosecute such cure to completion within a reasonable time, which shall in no event be later than ten (10) Days after
receipt of such written notice.
SECTION 15 CITY’S RIGHTS AND REMEDIES.
15.1 Remedies Upon Default.
If Contractor fails to cure any default of this Construction Contract within the time period set forth above in Section
14, then City may pursue any remedies available under law or equity, including, without limitation, the following:
15.1.1 Delete Certain Work. City may, without terminating the Construction Contract, delete certain
portions of the Work from one or more Task Orders, reserving to itself all rights to Losses related thereto.
15.1.2 Perform and Withhold. City may, without terminating the Construction Contract, engage others
to perform the Work or portion of the Work from one or more Task Orders that has not been adequately
performed by Contractor and withhold the cost thereof to City from future payments to Contractor,
reserving to itself all rights to Losses related thereto.
15.1.3 Suspend the Construction Contract. City may, without terminating the Construction Contract and
reserving to itself all rights to Losses related thereto, suspend all or any portion of this Construction Contract
or one or more Task Orders for as long a period of time as City determines, in its sole discretion, appropriate,
in which event City shall have no obligation to adjust the Contract Sum, Task Order Compensation Amount
or Contract Time, and shall have no liability to Contractor for damages if City directs Contractor to resume
Work.
15.1.4 Terminate the Construction Contract for Default. City shall have the right to terminate this
Construction Contract, in whole or in part, upon the failure of Contractor to promptly cure any default as
required by Section 14. City’s election to terminate the Construction Contract for default shall be
communicated by giving Contractor a written notice of termination in the manner specified for the giving
of notices in the Construction Contract. Any notice of termination given to Contractor by City shall be
effective immediately, unless otherwise provided therein.
15.1.5 Invoke the Performance Bond. City may, with or without terminating the Construction Contract
and reserving to itself all rights to Losses related thereto, exercise its rights under the Performance Bond.
15.1.6 Additional Provisions. All of City’s rights and remedies under this Construction Contract are
cumulative, and shall be in addition to those rights and remedies available in law or in equity. Designation
in the Contract Documents of certain breaches as material shall not waive the City’s authority to designate
other breaches as material nor limit City’s right to terminate the Construction Contract, or prevent the City
from terminating the Construction Contract for breaches that are not material. City’s determination of
whether there has been noncompliance with the Construction Contract so as to warrant exercise by City of
its rights and remedies for default under the Construction Contract, shall be binding on all parties. No
termination or action taken by City after such termination shall prejudice any other rights or remedies of
City provided by law or equity or by the Contract Documents upon such termination; and City may proceed
against Contractor to recover all liquidated damages and Losses suffered by City.
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TASK ORDER CONSTRUCTION CONTRACT
15.2 Delays by Sureties.
Time being of the essence in the performance of the Work, if Contractor’s surety fails to arrange for completion of
the Work in accordance with the Performance Bond, within seven (7) calendar days from the date of the notice of
termination, Contractor’s surety shall be deemed to have waived its right to complete the Work under the Contract,
and City may immediately make arrangements for the completion of the Work through use of its own forces, by
hiring a replacement contractor, or by any other means that City determines advisable under the circumstances.
Contractor and its surety shall be jointly and severally liable for any additional cost incurred by City to complete the
Work following termination. In addition, City shall have the right to use any materials, supplies, and equipment
belonging to Contractor and located at the Worksite for a Task Order for the purposes of completing the remaining
Work.
15.3 Damages to City.
15.3.1 For Contractor’s Default. City will be entitled to recovery of all Losses under law or equity in the
event of Contractor’s default under the Contract Documents.
15.3.2 Compensation for Losses. In the event that City’s Losses arise from Contractor’s default under the
Contract Documents, City shall be entitled to deduct the cost of such Losses from monies otherwise payable
to Contractor. If the Losses incurred by City exceed the amount payable, Contractor shall be liable to City
for the difference and shall promptly remit same to City.
15.4 Suspension by City.
15.4.1 Suspension for Convenience. City may, at any time and from time to time, without cause, order
Contractor, in writing, to suspend, delay, or interrupt the Work under one or more Task Orders in whole or
in part. The order shall be specifically identified as a Suspension Order by City. Upon receipt of a Suspension
Order, Contractor shall, at City’s expense, comply with the order and take all reasonable steps to minimize
costs allocable to the Work covered by the Suspension Order. During the Suspension or extension of the
Suspension, if any, City shall either cancel the Suspension Order or, by Change Order, delete the Work
covered by the Suspension Order. If a Suspension Order is canceled or expires, Contractor shall resume and
continue with the Work. A Change Order will be issued to cover any adjustments of the Contract Sum or
the Contract Time necessarily caused by such suspension. A Suspension Order shall not be the exclusive
method for City to stop the Work.
15.4.2 Suspension for Cause. In addition to all other remedies available to City, if Contractor fails to
perform or correct work in accordance with the Contract Documents including the applicable Task Order(s),
City may immediately order the Work, or any portion thereof, suspended until the cause for the suspension
has been eliminated to City’s satisfaction. Contractor shall not be entitled to an increase in Contract Time
or Contract Price for a suspension occasioned by Contractor’s failure to comply with the Contract
Documents. City’s right to suspend the Work shall not give rise to a duty to suspend the Work, and City’s
failure to suspend the Work shall not constitute a defense to Contractor’s failure to comply with the
requirements of the Contract Documents.
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15.5 Termination Without Cause.
City may, at its sole discretion and without cause, terminate this Construction Contract in part or in whole upon
written notice to Contractor. Upon receipt of such notice, Contractor shall, at City’s expense, comply with the notice
and take all reasonable steps to minimize costs to close out and demobilize. The compensation allowed under this
Paragraph 15.5 shall be the Contractor’s sole and exclusive compensation for such termination and Contractor
waives any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of
revenue, lost opportunity, or other consequential, direct, indirect or incidental damages of any kind resulting from
termination without cause. Termination pursuant to this provision does not relieve Contractor or its sureties from
any of their obligations for Losses arising from or related to the Work performed by Contractor.
15.5.1 Compensation. Following such termination and within forty-five (45) Days after receipt of a billing
from Contractor seeking payment of sums authorized by this Paragraph 15.5.1, City shall pay the following
to Contractor as Contractor’s sole compensation for performance of the Work :
.1 For Work Performed. The amount of the Contract Sum allocable to the portion of the
Work properly performed by Contractor as of the date of termination, less sums previously paid
to Contractor.
.2 For Close-out Costs. Reasonable costs of Contractor and its Subcontractors:
(i) Demobilizing and
(ii) Administering the close-out of its participation in the Project (including, without
limitation, all billing and accounting functions, not including attorney or expert fees) for
a period of no longer than thirty (30) Days after receipt of the notice of termination.
.3 For Fabricated Items. Previously unpaid cost of any items delivered to the Project Site
which were fabricated for subsequent incorporation in the Work.
.4 Profit Allowance. An allowance for profit calculated as four percent (4%) of the sum of
the above items, provided Contractor can prove a likelihood that it would have made a profit if the
Construction Contract had not been terminated.
15.5.2 Subcontractors. Contractor shall include provisions in all of its subcontracts, purchase orders and
other contracts permitting termination for convenience by Contractor on terms that are consistent with
this Construction Contract and that afford no greater rights of recovery against Contractor than are afforded
to Contractor against City under this Section.
15.6 Contractor’s Duties Upon Termination.
Upon receipt of a notice of termination for default or for convenience, Contractor shall, unless the notice directs
otherwise, do the following:
(i) Immediately discontinue the Work to the extent specified in the notice;
(ii) Place no further orders or subcontracts for materials, equipment, services or facilities, except as
may be necessary for completion of such portion of the Work that is not discontinued;
(iii) For each Task Order, provide to City a description in writing, no later than fifteen (15) days after
receipt of the notice of termination, of all subcontracts, purchase orders and contracts that are
outstanding, including, without limitation, the terms of the original price, any changes, payments,
balance owing, the status of the portion of the Work covered and a copy of the subcontract,
purchase order or contract and any written changes, amendments or modifications thereto,
together with such other information as City may determine necessary in order to decide whether
20 Rev. _____ 2023
TASK ORDER CONSTRUCTION CONTRACT
to accept assignment of or request Contractor to terminate the subcontract, purchase order or
contract;
(iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions thereof, that
City elects to accept by assignment and cancel, on the most favorable terms reasonably possible,
all subcontracts, purchase orders or contracts, or portions thereof, that City does not elect to
accept by assignment; and
(v) Thereafter do only such Work as may be necessary to preserve and protect Work already in
progress and to protect materials, plants, and equipment on the Project Site or in transit thereto.
Upon termination, whether for cause or for convenience, the provisions of the Contract Documents remain
in effect as to any Claim, indemnity obligation, warranties, guarantees, submittals of as-built drawings,
instructions, or manuals, or other such rights and obligations arising prior to the termination date.
SECTION 16 CONTRACTOR’S RIGHTS AND REMEDIES.
16.1 Contractor’s Remedies.
Contractor may terminate this Construction Contract or a Task Order only upon the occurrence of one of the
following:
16.1.1 For Work Stoppage. The Work under a Task Order is stopped for sixty (60) consecutive Days,
through no act or fault of Contractor, any Subcontractor, or any employee or agent of Contractor or any
Subcontractor, due to issuance of an order of a court or other public authority other than City having
jurisdiction or due to an act of government, such as a declaration of a national emergency making material
unavailable. This provision shall not apply to any work stoppage resulting from the City’s issuance of a
suspension notice issued either for cause or for convenience.
16.1.2 For City’s Non-Payment. If City does not pay Contractor undisputed sums within ninety (90) Days
after receipt of notice from Contractor, Contractor may terminate the Construction Contract or the
subject Task Order (30) days following a second notice to City of Contractor’s intention to terminate the
Construction Contract.
16.2 Damages to Contractor.
In the event of termination for cause by Contractor, City shall pay Contractor the sums provided for in Paragraph
15.5.1 above. Contractor agrees to accept such sums as its sole and exclusive compensation and agrees to waive
any claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of
revenue, lost opportunity, or other consequential, direct, indirect and incidental damages, of any kind.
SECTION 17 ACCOUNTING RECORDS.
17.1 Financial Management and City Access.
Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial
management under this Construction Contract in accordance with generally accepted accounting principles and
practices. City and City’s accountants during normal business hours, may inspect, audit and copy Contractor’s
records, books, estimates, take-offs, cost reports, ledgers, schedules, correspondence, instructions, drawings,
receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project. Contractor
shall retain these documents for a period of three (3) years after the later of (i) Final Payment or (ii) final resolution
of all Contract Disputes and other disputes, or (iii) for such longer period as may be required by law.
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17.2 Compliance with City Requests.
Contractor’s compliance with any request by City pursuant to this Section 17 shall be a condition precedent to filing
or maintenance of any legal action or proceeding by Contractor against City and to Contractor’s right to receive
further payments under the Contract Documents. City many enforce Contractor’s obligation to provide access to
City of its business and other records referred to in Section 17.1 for inspection or copying by issuance of a writ or a
provisional or permanent mandatory injunction by a court of competent jurisdiction based on affidavits submitted
to such court, without the necessity of oral testimony.
SECTION 18 INDEPENDENT PARTIES.
18.1 Status of parties.
Each party is acting in its independent capacity and not as agents, employees, partners, or joint ventures of the other
party. City, its officers or employees shall have no control over the conduct of Contractor or its respective agents,
employees, subconsultants, or subcontractors, except as herein set forth.
SECTION 19 NUISANCE.
19.1 Nuisance Prohibited.
Contractor shall not maintain, commit, nor permit the maintenance or commission of any nuisance in connection in
the performance of services under this Construction Contract.
SECTION 20 PERMITS AND LICENSES.
Except as otherwise provided in the Special Provisions and Technical Specifications or an individual Task Order, the
Contractor shall provide, procure and pay for all licenses, permits, and fees, required by the City or other government
jurisdictions or agencies necessary to carry out and complete the Work. Payment of all costs and expenses for such
licenses, permits, and fees shall be included in one or more Bid items. No other compensation shall be paid to the
Contractor for these items or for delays caused by non-City inspectors or conditions set forth in the licenses or
permits issued by other agencies.
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SECTION 21 WAIVER.
A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be deemed to
be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein,
whether of the same or a different character.
SECTION 22 GOVERNING LAW AND VENUE; COMPLIANCE WITH LAWS.
22.1 Governing Law and Venue.
This Construction Contract shall be construed in accordance with and governed by the laws of the State of California,
without regard to conflict of law provisions, and venue shall be in a court of competent jurisdiction in the County of
Santa Clara, California and no other place.
22.2 Compliance with Laws.
Contractor shall comply with all applicable federal and California laws and city laws, including, without limitation,
ordinances and resolutions, in the performance of work under this Construction Contract.
22.2.1 Palo Alto Minimum Wage Ordinance. Contractor shall comply with all requirements of the Palo
Alto Municipal Code Chapter 4.62 (Citywide Minimum Wage), as amended from time to time. In particular,
for any employee otherwise entitled to the State minimum wage, who performs at least two (2) hours of
work in a calendar week within the geographic boundaries of the City, Contractor shall pay such employees
no less than the minimum wage set forth in Palo Alto Municipal Code section 4.62.030 for each hour worked
within the geographic boundaries of the City of Palo Alto. In addition, Contractor shall post notices
regarding the Palo Alto Minimum Wage Ordinance in accordance with Palo Alto Municipal Code section
4.62.060.
SECTION 23 COMPLETE AGREEMENT.
23.1 Integration.
This Construction Contract, including the Contract Documents incorporated herein, represents the entire and
integrated agreement between the parties and supersedes all prior negotiations, representations, and contracts,
either written or oral. This Construction Contract may be amended only by a written instrument, which is signed by
the parties.
SECTION 24 SURVIVAL OF CONTRACT.
24.1 Survival of Provisions.
The provisions of the Construction Contract which by their nature survive termination or expiration of the
Construction Contract or Final Completion, including, without limitation, all warranties, indemnities, payment
obligations, and City’s right to audit Contractor’s books and records, shall remain in full force and effect after Final
Completion of a Task Order or any termination or expiration of a Task Order or the Construction Contract.
SECTION 25 PREVAILING WAGES.
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This Construction Contract is not subject to prevailing wages and related requirements. Contractor is not
required to pay prevailing wages and meet related requirements under the California Labor Code or California Code
of Regulations in the performance and implementation of a Task Order if the Contract:
___is not a public works contract as defined in Labor Code section 1720 et seq.;
___is for a public works construction project of $25,000 or less, per Labor Code Sections 1782(d)(1),
1725.5(f) and 1773(j);
___is for a public works alteration, demolition, repair, or maintenance of $15,000 or less, per Labor Code
Sections 1782(d)(1), 1725.5(f) and 1773(j).
Or
This Construction Contract is subject to prevailing wages and related requirements as a “public works”
contract under California Labor Code Sections 1720 et seq. and related regulations. Contractor is required to pay
general prevailing wages as defined in California Labor Code Section 1773.1 and Subchapter 3, Title 8 of the California
Code of Regulations Section 16000 et seq., as amended from time to time. Pursuant to Labor Code Section 1773, the
City has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work
in this locality for each craft, classification, or type of worker needed to execute the Construction Contract for this
Project and any Task Order issued pursuant to this Construction Contract from the State of California Department of
Industrial Relations (“DIR”). Copies of these rates may be obtained at the City’s Purchasing Department office. The
general prevailing wage rates are also available at the DIR, Division of Labor Statistics and Research, website (see
e.g. http://www.dir.ca.gov/DLSR/PWD/index.htm) as amended from time to time. Contractor shall post a copy of
the general prevailing wage rates at all Project job sites for each Task Order and shall pay the adopted prevailing
wage rates as a minimum. Contractor shall comply with all applicable provisions of Division 2, Part 7, Chapter 1 of
the California Labor Code (Labor Code Section 1720 et seq.), including, but not limited to, Sections 1720, 1725.5,
1771, 1771.1, 1771.4, 1773.2, 1774, 1775, 1776, 1777.5, 1782, 1810, 1813 and 1815, and all applicable implementing
regulations, including but not limited to Subchapter 3, Title 8 of the California Code of Regulations Section 16000 et
seq. (8 CCR Section 16000 et seq.), as amended from time to time.
SECTION 26 NON-APPROPRIATION.
26.1 Appropriations.
This Construction Contract is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto
Municipal Code. This Construction Contract will terminate without any penalty (a) at the end of any fiscal year in the
event that the City does not appropriate funds for the following fiscal year for this event, or (b) at any time within a
fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Construction
Contract are no longer available. This section shall take precedence in the event of a conflict with any other
covenant, term, condition, or provision of this Construction Contract.
SECTION 27 AUTHORITY.
27.1 Representation of Parties.
The individuals executing this Construction Contract represent and warrant that they have the legal capacity and
authority to do so on behalf of their respective legal entities.
SECTION 28 COUNTERPARTS
28.1 Multiple Counterparts.
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TASK ORDER CONSTRUCTION CONTRACT
This Construction Contract may be signed in multiple counterparts, which shall, when executed by all the parties,
constitute a single binding agreement.
SECTION 29 SEVERABILITY.
29.1 Severability.
In case a provision of this Construction Contract is held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not be affected.
SECTION 30 STATUTORY AND REGULATORY REFERENCES.
30.1 Amendments to Laws.
With respect to any amendments to any statutes or regulations referenced in these Contract Documents, the
reference is deemed to be the version in effect on the date that the Contract was awarded by City, as may be
amended from time to time, unless otherwise required by law.
SECTION 31 WORKERS’ COMPENSATION CERTIFICATION.
31.1 Workers Compensation.
Contractor will maintain workers’ compensation insurance for its employees as required by law, including Labor
Code sections 1860 and 3700. Pursuant to Labor Code Section 1861, by signing this Construction Contract,
Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured
against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that
code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”
SECTION 32 DIR REGISTRATION AND OTHER REQUIREMENTS.
32.1 General Notice to Contractor.
City requires Contractor and its Subcontractors to comply with all applicable requirements of the California Labor
Code including but not limited to Labor Code Sections 1720 through 1861, and all applicable related regulations,
including but not limited to Subchapter 3, Title 8 of the California Code of Regulations Section 16000 et seq., as
amended from time to time. Additional information regarding public works and prevailing wage requirements is
available on the DIR website (see e.g. http://www.dir.ca.gov) as amended from time to time.
.
32.2 Labor Code section 1771.1(a)
City provides notice to Contractor of the requirements of California Labor Code section 1771.1(a), which
reads:
“A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the
requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for
public work, as defined in this chapter, unless currently registered and qualified to perform public work
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TASK ORDER CONSTRUCTION CONTRACT
pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid
that is authorized by Section 7029.1 of the Business and Professions Code or Section 10164 or 20103.5 of
the Public Contract Code, provided the contactor is registered to perform public work pursuant to Section
1725.5 at the time the contract is awarded.”
32.3 DIR Registration Required.
City will not accept a bid proposal from or enter into this Construction Contract with Contractor without
proof that Contractor and its Subcontractors are registered with the California Department of Industrial
Relations (“DIR”) to perform public work, subject to limited exceptions.
32.4 Posting of Job Site Notices; Compliance Monitoring.
City gives notice to Contractor and its listed subcontractors that Contractor is required to post all job site
notices prescribed by law or regulation and Contractor is subject to -compliance monitoring and
enforcement by DIR.
32.5 Payroll Records.
Contractor shall furnish certified payroll records directly to the Labor Commissioner (DIR) in accordance with
Subchapter 3, Title 8 of the California Code of Regulations Section 16461 (8 CCR Section 16461).
City requires Contractor and its Subcontractors to comply with the requirements of Labor Code section 1776,
including, but not limited to:
32.5.1 Keep accurate payroll records, showing the name, address, social security number, work
classification, straight time and overtime hours worked each day and week, and the actual per
diem wages paid to each journeyman, apprentice, worker, or other employee employed by,
respectively, Contractor and its Subcontractors, in connection with the Project.
32.5.2 The payroll records shall be verified as true and correct and shall be certified and made
available for inspection at all reasonable hours at the principal office of Contractor and its
Subcontractors, respectively.
32.5.3 At the request of City, acting by its Project Manager, Contractor and its Subcontractors
shall make the certified payroll records available for inspection or furnished upon request to the
City’s Project Manager within ten (10) days of receipt of City’s request.
City requests Contractor and its Subcontractors to submit the certified payroll
records to the City’s Project Manager at the end of each week during the Project.
32.5.4 If the certified payroll records are not produced to the project manager within the 10-
day period, then Contractor and its listed subcontractors shall be subject to a penalty of one
hundred dollars ($100.00) per calendar day, or portion thereof, for each worker, and City shall
withhold the sum total of penalties from the progress payment(s) then due and payable to
Contractor. This provision supplements the provisions of Section 15 hereof.
32.5.5 Inform the project manager of the location of contractor’s and its listed subcontractors’
payroll records (street address, city and county) at the commencement of the Project, and also
provide notice to the project manager within five (5) business days of any change of location of
those payroll records.
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TASK ORDER CONSTRUCTION CONTRACT
32.6 Employment of Apprentices.
Contractor shall comply with the statutory requirements regarding employment of apprentices including
without limitation Labor Code Section 1777.5. The statutory provisions will be enforced for penalties for
failure to pay prevailing wages and for failure to comply with wage and hour laws.
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TASK ORDER CONSTRUCTION CONTRACT Rev. ____ 2023
IN WITNESS WHEREOF, the parties have caused this Construction Contract to be executed on the
date and year first above written.
CITY OF PALO ALTO
____________________________
City Manager
APPROVED AS TO FORM:
____________________________
City Attorney or designee
MP NEXLEVEL OF CALIFORNIA, INC.
By:___________________________
Name:________________________
Title:__________________________
By:____________________________
Name:_________________________
Title:___________________________
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TASK ORDER CONSTRUCTION CONTRACT
EXHIBIT “A-1”
TASK ORDER FORM
Contractor hereby agrees to perform the Work detailed below in accordance with all the terms and conditions of
the Construction Contract referenced in Item 1A below. All attachments listed in Item 7 are incorporated into this
Task Order by this reference. The Contractor shall furnish the necessary labor, equipment, and materials required
by this Task Order as described below, and as further specified in the Contract Documents.
CONTRACT NO. ISSUE DATE
Purchase Requisition No.
1A. TASK ORDER CONSTRUCTION CONTRACT NUMBER
1B. TASK ORDER NO.
2. CONTRACTOR
3. CONTRACT TIME: START: COMPLETION:
4 TASK ORDER COMPENSATION AMOUNT: $__________________
BALANCE REMAINING IN CONTRACT SUM: $__________________________________
5. BUDGET CODE: _______________
COST CENTER: _________________ COST ELEMENT: ______________ WBS/CIP: ___PHASE: ___
6. CITY PROJECT MANAGER’S NAME/DEPARTMENT:_____________________________________
7. ATTACHMENTS: A: Task Order Scope of Work B (if any): __________________________________
-----------------------------------------------------------------------------------------------------------------------------------
I hereby authorize the performance of I hereby acknowledge receipt and acceptance
the work described above in this Task Order. of this Task Order and warrant that I have
authority to sign on behalf of Consultant.
APPROVED: APPROVED:
CITY OF PALO ALTO CONTRACTOR NAME: ______________________
BY:__________________________________ BY:____________________________________
Name ________________________________ Name __________________________________
Title_________________________________ Title___________________________________
Date _________________________________ Date ___________________________________
Contractor must sign and return this Task Order in PDF form via email to the Project Manager at
________________@CityofPaloAlto.org within two days following the Issue Date set forth above.
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TASK ORDER CONSTRUCTION CONTRACT
EXHIBIT “A-1”
TASK ORDER FORM
Attachment A – Task Order Scope of Work
1. DESCRIPTION OF WORK TO BE PERFORMED.
2. SCHEDULE FOR PERFORMANCE OF WORK.
3. BASIS FOR TASK ORDER COMPENSATION AMOUNT.
4. SUBMITTAL REQUIREMENTS.
5. ADDITIONAL PROVISIONS.