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CMR- 460-01
City of Palo Alto City Manag r Report TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: COMMUNITY SERVICES DATE:DECEMBER 17, 2001 CMR: 460:01 SUBJECT:APPROVAL OF A CONTRACT WITH DEL CONTE'S LANDSCAPING, INC. IN THE AMOUNT OF $345,109 FOR ROBLES PARK FACILITIES IMPROVEMENTS AND IRRIGATION RENOVATION RECOMMENDATION Staff recommends that Council: 1.Approve and authorize the Mayor to execute the attached contract with Del Conte's Landcsaping, Inc. in the amount of $345,109 for the installation of the irrigation system with Maxicom controllers, American Disabilities Act (ADA) playground renovations, and pathway repairs. Authorize the City Manager or his designee to negotiate and execute one or more change orders to the contract with Del Conte's Landscaping, Inc. for related, additional but unforeseen work which may develop during the project, the total value of which shall not exceed $ 34,511. DISCUSSION Project Description The work to be performed under the contract is for the installation of an irrigation system with water-conserving Maxicom controllers, drainage improvements, ADA playground renovations, and pathway improvements at Don Segundino Robles Park. Bid Process Bids were initially received on the Robles Park improvement project on August 7, 2001 after a formal bid process. Staff rejected the low bid of $577,800, which was substantially over the budgeted amount for the project. Staff scaled back the scope of work and sought new bids. A notice inviting formal bids for the Robles Park improvement project was sent on October 23, 2001 to three builders' exchanges and seven contractors. The bidding period was 42 days. A pre-bid meeting was held on November 5, 2001; four bidders attended the meeting. Bids were received from three qualified contractors on December 4, 2001, as listed on the attached bid summary CMR:460:01 Page ! of 2 (Attachment A). Bids ranged from $345,109 to $497,615. Contractors not responding indicated that they did not submit a bid because they had too many other projects. Staff has reviewed all bids submitted and recommends that the bid of $345,109 submitted by Del Conte's Landscaping, Inc. be accepted and that Del Conte's Landscaping, Inc. be declared the lowest responsible bidder. The bid is 8 percent below the staff estimate of $375,000. The change order amount of $34,511 which equals 10 percent of the total contract is requested. Staff checked references supplied by the contractor for previous work performed and found no significant complaints. Staff also checked with the Contractor's State License Board and found that the contractor has an active license on file. RESOURCE IMPACT Funds for the recommendation are available in Capital Improvement Project 10010, Park Facilities Improvements and Project 19901, Robles Park Irrigation Improvement. POLICY IMPLICATIONS This recommendation does not represent any change to existing City policies. ENVIRONMENTAL REVIEW This contract is not a project as defined by the California Environmental Quality Act (CEQA); and is not subject to CEQA requirements. ATTACHMENTS Attachment A: Attachment B: Bid Summary Contract PREPARED BY: Project Manager DEPARTMENT HEAD: PAUL THILTGEN Director, Community Services Department CITY MANAGER APPROVAL: EMIL Assistant City Manager CMR:460:01 Page 2 of 2 (Rev. December 1996) Department of .the Treasury Internal Revenue Service Re( uest for Taxp.ayer identification Number and Certification Name (If a joint account or you changed your name, see Specific Instructions on page 2.) Give form tO the requester. Do NOT send to the IRS. Business name, if different from above. (See Specific Instructions on page 2.) DEL CONTE'S LANDSCAPING, INC. Check appropriate box: [] Individual/Sole proprietor ~ Corporation Address (number, street, and apt. or suite no.) 41900 BOSCELL ROAD [] Partnership [] Other ~- ...................................... Requester's. name and address (optional) state, and ZIP code FREM.ONT, CA 94538 Taxpayer IdentificationNumber (TIN) " Enter your TIN in the appropriate box. For. individuals, this is your social security number (SSN). However, if you are a resident alien OR a sole proprietor, see the instructions on page 2. For other entities, it is your employer identification number (EIN). If you do not have a number, see How To Get a TIN on page 2. Note: If the account is in more than one name, see thechart on page 2 for guidelines on whose number to enter. ~ Certification Soiial secudty number OR [Employer identification number For Payees Exempt From Backup Withholding (See the instructions on page 2.) Under penalties of perjury, 1 certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and 2. I am not subject to backup withholding because: (a} I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding. Certification lnstructions.--You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but you must provide your correct TtN. (See the instructions on page 2.) Purpose of Form.--A person who is include interest, dividends, broker and 5. You do not certify your TIN when required to file an information return with the IRS must get your correct taxpayer identification number (TIN) to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA. Use Form W-9 to give your correct TIN to the person requesting it (the requester) and, when applicable, to: 1. Certify the TIN you are giving is correct (or you are waiting for a number to be issued), 2. Certify you are not subject to backup withholding, or 3. Claim exemption from backup withholding if you are an exempt payee. Note: If a requester gives you a form other than a W-9 to request your TIN, you must use the requester's form ff it is substantially similar to this Form W-9. What Is Backup Withholding?--Persons making certain payments to you must withhold and pay to the IRS 31% of such payments under certain conditions. This is called "backup withholding." Payments that may be subject to backup withholding barter exchange transactions, rents, royalties, nonempioyee pay, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding. If you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return, payments you receive will not be subject to backup withholding. Payments you receive will be subject to backup withholding if: 1. You do not furnish your TIN to the requester, or 2. The IRS tells the requester that you furnished an incorrect TIN, or 3. The IRS tells-you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or 4. You do not certify to the requester that you are not subject to backup withholding under 3 above (for reportable interest and dividend accounts opened after 1983 only), or required. See the Part III instructions on page 2 for details. Certain payees and payments are exempt from backup withholding. See the Part II instructions and the separate Instructions for the Requester of Form Penalties Failure To Furnish TiN.mlf you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. Civil Penal~ for False Information With Respect to Withholding.nlf you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. Criminal Penalty for Falsifying Information.-- Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. Misuse of TINs.--lf the requester discloses or uses TINs in violation of Federal law, the requester may be subject to civil and criminal penalties. Cat. No, 10231X Form W-9 (Rev. 12-96) PART tl - BIDDER'S BID PAGES..........,~ CTION 300 City Council/City Manager City of Palo Alto Palo Alto, California In response to this Invitation For Bid (IFB), the undersigned, as Bidder, declares that the only persons or parties interested in this Bid as principals are those named herein; that this Bid is made without collusion with any other person, firm or corporation; that the Bidder has carefully examined the location of the proposed work and the plans and specifications herein referred to; and the Bidder proposes and agrees, if this Bid is accepted, that the Bidder will contract with the City of Palo Alto (City), to provide all necessary materials, equipment, tools, apparatus, and other means of transport services, and to do all the work and furnish all the specified requirements in this IFB, in the manner herein prescribed and at the prices stated in the following Bid: Project Title: A: Base Bid: Robles Park Facilities Improvements and Irrigation Renovation, Invitation for Bid (IFB) Number 135201-A. Work of installing complete work in accordance with Part 111, General Requirements and specifications, herein: ITEM 001 002 003 O04 ....... 005 1 lot 1 lot 1 lot 1 lot 1 lot UNI I Each Each Each Each Each DESCRIPTION, WITH UNIT PRICE IN WORDS (PRICE IS INCLUSIVE OF ALL APPLICABLE TAXES) Labor, equipment, material, and t[ansportation for Irrigation & Maxicom Sys.t~m (Unit Price in words:_6hehundredthi rty thousand rseven nunored seven~Y)d~Tlars Labor,'equipmeni, m~i~rial, a'r;~l transportation for North Playground - Improvements with wood product surfacing four thousand thf'ee hundred (Unit Price in words:., and five anl I are. Labor, equipment, material, and transportation for South Playground - !mprovements with wood product surfacing ~line thousand six hundred (Unit Price in words: ~na t-~,~,~nty _rill ] a~'~ " Labor, equi'pment, material, and transportation for Decomposed Granite Pathways with extruded mowbands ninety three thousand nineUnit Price inwords:_.,,~ ~ ~÷,, dO~ TOTAL ITEM PRICE !30;770.0( 4,305.u(- 9,620.0[ Labor, equipment, material, and transportation for Renovation of Amenities: Concrete, pavers, backstop, benches, trashcans, picnic tables (Unit Price i.n w0.rdsL sixty-seven th'ousand'and ........ ~ _,~ei ghty-fiye dol 1 ars Total for Base Contract (Items 1 through 5) $-93,940.00 $67,085.0( $ 305,720.0( CITY OF PALO ALTO IFB NO. 135201-A rev. 12/00 PAGE 1 OF 4 PART II- BIDDER'S BID PAGES SECTION 300 B: Add Alternate Rid Items: Item No. 6 - 11 are Add Alternate Items. Work of installing Items 6 through 11 in accordance with Part I11, General Requirements and Specifications, herein: ITEM QTY. '"006 1 lot Each 007 1 lot Each 008 1 lot Each 009 1 lot Each -010 1 lot EaCh 011 1 lot Each DESCRIPTION, WITH UNIT PRICE IN WORDS (PRICE IS INCLUSIVE OF ALL APPLICABLE TAXES) Labor, equipment, material, and transportation to Installation of Catch Basins & Storm Drains (Add Alternate) thirteen thousand eight Unit Price in words:[zuj3.d£pzl e1 ghty :thr~e_dD] Labor, equipment, material, and transortation to Installation of 2 Additional Drinking Fountains, and replacing ex with new model y_ ninc dollars Labor, equipment, material, and transportation to Installation of Picnic Arbors (AddAIternate)six thousand one hund#e(Unit Price in words,~_.~,~i×ty sever, do~ Labor, equipme.nt, material, ..and transportation to Installation of New.La.nd,scaping (Add Alternate) e] even thousand one (Unit Price in words: hundred do]. _)Labor, eciuipment' material, and transportation to -- Installation of Turf Renovation (Add Alternate) twenty-hi ne thousand do]. ]ar (Unit Price in words: _) Labor, equipment, material, and transportation to Installation of two Backflow Enclosures (Add Alternate) four thousand two hundred Unit Price in words: ~w_nl-,y clol ] ars~ TOTALITEM PRICE $13:~883:( I ars $ d 8,239.0 6,167.01 $11 ,I00.0( $29,000.0( s $ 4,270.0( Lowest Responsible Bidder The lowest bid shall be the lowest total of the bid prices on the base contract and those 'adds' or 'deducts' items taken in order from a specifically identified list of those items, depending upon available funds as identified in the bid solicitation. CITY OF PALO ALTO IFB NO. 135201-A rev. 12/00 PAGE 2 OF 4 PART II - BIDDER'S BID PAGES SECTION 300 Bid Bond Requirement (Not required for Bids with a Base Bid Grand Total amount of less than $25,000) Bidders shall submit a Bid Bond in the amount of not less than five percent (5%) of the Base Bid Grand Total. The Bid Bond shall be in the form of cash, a certificat~ of deposit, a certified check or draft, a cashier's check or draft, drawn on a bank or credit union chartered in the United States of America, and issued or drawn in favor of, and payable to the "City of Palo Alto", or a surety bond in favor of the "City of Palo Alto". City will not accept Personal or company as a form of Bid Bond. Bid Bond (Bidder shall enter the amount of Bond submitted/enclosed) Enclosed is $ (Bid Bond amount of not less than 5% of the Base Bid Grand Total) which is given as security to assure the undersigned will enter into the contract for performance of the work as is specified herein, if awarded. Note: The Bid Bonds of Bidders who do not qualify as the Lowest Responsible Bidder shall be returned to such Bidders upon the execution of the contract by City and the successful Bidder. Insurance The Bidder shall bear all costs and provide insurance as required by Part II, Section 650, Insurance Requirements, herein. Project Schedule The selected Bidder shall begin work hereunder within Five calendar days of City's Notice to Proceed. Project shall begin in December, 2001 and be completed by March, 2002 (16 weeks). Turf renovation alternate shall be completed not later than February 15, 2001 (allowing for a two -month grow-in period). Performance, and Payment (Labor and Material) Bonds The selected Bidder shall furnish City a Performance Bond, and Payment (Labor and Materials) Bond. Both bonds shall be in the amount of 100% of the contract price, and in accordance with requirements contained in Part II, Section 610, Performance Bond, and in Section 620, Payment (Labor & Materials) Bond, of this IFB. Liquidated Damages Any delay by Contractor to perform will interfere with the proper implementation of City's programs to the loss and damage of City. As it would be impracticable to fix the actual damage City suffers in the event of any such failure to perform, City and Contractor, therefore, presume that in the event of any such failure to perform, the amount of damage which shall be sustained by city will be the sum of $250.00 for each and every calendar day during which said work shall remain uncompleted beyond such time for completion or approved extension thereof. The City retains the right to deduct liquidated damages from progress payments to the extent that the amount of said liquidated damages, based on Contractor's failure to maintain schedule as determined by City, exceeds the Contract retention. In addition, the City may require a tripartite agreement among the City, the Contractor, and the Contractor's surety as a condition to making full progress payments if the Work is behind schedule, in order to avoid exoneration of the bond or impairment of the surety's security. Specifications The specifications or scope of work included have been prepared to describe the standard of quality, performance, and other characteristics needed to meet City requirements. The City will accept alternate proposals of a designated material, product, thing, service, "or equal", and will determine if such alternate proposals are satisfactory in meeting mandatory requirements or specification, and if the proposed alternate meets the intent of the original mandatory requirement. CITY OF PALO ALTO IFB NO. 135201-A rev. 12/00 PAGE 3 OF 4 PART II - BIDDER'S BID PAGES SECTION 300 Contractor's License Requirements Subject to verification of good standing, Bidder shall submit a copy of its current contractors license as issued by the State of California under Chapter 9 of Division III of the California Business and Professions Code (Sections 7000 et seq_). The copy of the license shall be attached to Part II, Section 300A, Bidder Information, of the IFB. The prime contractor for this work shall possess a valid contractors license in the following category: Ao Class A (General Engineering), or, California Contractors License, C-27, pertaining to the work to be accomplished: License Number:672485 Classification:C-27 Expiration Date:6/30/2003 Additional Requirements Contractor must possess a Maxicom Installation Certification. Signature(s) must be the same si.gnature(s) as appear(s) in Part 11, Section 300A, Bidder Information, of the IFB: Firm: Signature: Name: Del Conte's Landscap~ Inc. ~~~/-'~~~Signature: (Print or type name)(Pdnt or type na"m-e)- CITY OF PALO ALTO IFB NO. 135201-A rev. 12J00 PAGE 4 OF 4 PART III - BIDDER INFORMATION SECTION 300A PROVIDE~E INFORMATION REQUESTED-BELOWOR INDICAT~OT APPLICABLE", IF APPROPRIATE NAME OF BIDDER (COMPANY) Conte~ sDel landscaping, Inc. IRS Number:. 94-3154581 Phone/Fax Number:. 510-353-6030 / 510-353-6037 ADDRESS 41900 Boscell Road, Fremont, CA 94538 Bidder is a: California Corporation []Corporation organized under the laws of the State of with head offices located at and offices in California at , proprietor. [] [] [] [] California Limited Liability Company Sole Proprietorship; Partnership Limited Liability Partnership List names of partners; state which partner or partners are managing partner(s) B. C. D. CUSTOMER COMPANY City of Palo Alto City of Mountain View New Haven School Dist Lusardi Other (attach Addendum with explanatory details) How many years have you (or your firm) done business under the name listed above? Flow many years of experience similar to work or services covered in this IFB? Provide relevant references of contracts satisfactorily completed in the last three (3) years: 29 29 CONTACT~HONENUMBER DATECOMPLETED CONTRACTAMOUNT Eleanor Parks 1998 80,000.00 E1 Camino Medians 05/01 ~8 0,000.00 10 Schools 10/99 $350,000.00 Montague Expressway $370,000.00 (PROVIDE ADDITIONAL SHEETS, IF NECESSARY) Have you (or your firm) previously worked for the City of Palo Alto? x above, or if necessary, provide information on additional sheets). __ Yes, or __ No (if "Yes", list CITY OF PALO ALTO IFB NO. 135201-A PAGE 1 OF 4 PART III - BIDDER INFORMATION SECTION 300A Fo QUANTITY 1 I 1 1 If applicable, provide a list of the plant(s), and/or facilities, and equipment owned by the Bidder which available for use on the proposed work as may be required herein. CONDITION 100% 100% 1 OO% H° NAME/TYPE/MODEL, CAPACITY, ETC. Trencher Ditchwitch Skid Loader/New ~l@tt~cbmentslana ~ cons Aerator / John Deer Drop Seat Attachment / Toro 100% (INCLUDEADDITIONALPAGESIFNECESSARY) DCL Yard DCL Yard DCL Yard DCL Yard LOCATION Provide a list of the Bidder's management staff who will manage the proposed work or services: FIELD OF EXPERTISEICAPABILITIES/EXPERIENCE i19 #ears - landscapinQ and irrigatinn 19 years - landsacping and irriqation 27 years - landscaping and irriqation NAME Jose Luis Magana Raul Aguirre Tom Del Conte (INCLUDE ADDITIONAL PAGES IF NECESSARY) 0-27 are Contractors license, number/type: Minority Business Enterprises: Bidder is ~., or is not__xx a minority, or Women, or Disadvantaged Business Enterprise Small Business Concern: Bidder is__, or is not xx a Small Business Concern Ko Reference Section 4100, et Seq.,of the Public Contract Code: identify the names and business address of each subcontractor performing work (under this IFB) that has a value in excess of one-half of one percent of the Bidder's total Bid price. Also identify the portion of the work that will be performed by such subcontractor. After opening of Bids, no changes or substitutions will be allowed except as otherwise provided by law. The listing of more than one subcontractor for each item of work to be performed with the words 'and/or' will not be permitted. Failure to comply with this requirement will render the Bid as non- responsive and may cause its rejection. List all such subcontractors below, or in additional sheets, as required: NAME AND ADDRESS I. Creative Landscape Borders 2724 Eastqate Ave. Concord C~ 2. 94520 Installation SCOPE QF WORK of concrete mow borders (INCLUDE ADDITIONAL PAGES IF NECESSARY) Or, m Subcontractors will not perform work, provide labor, or render services in or about the work covered by this IFB (check and initial). CITY OF PALO ALTO IFB NO. 135201-A PAGE 2 OF 4 PART III - BIDDER INFORMATION K Addenda SECTION 300A During the Bid process there may be changes to the Bid documents, which would require an issuance of an addendum or addenda. City disclaims any and ill liability for loss, or damage to any Bidder who does not receive any addendum issued by City in connection with this IFB. Any Bidder in submitting a Bid is deemed to waive any and all claims and demands Bidder may have against City on account of the failure of delivery of any such addendum to Bidder. Any and all addenda issued by City shall be deemed included in this IFB, and the provisions and instructions therein contained shall be incorporated to any Bid submitted by Bidder. To assure that all Bidders have received each addendum, the following acknowledgment and sign-off is required. Failure to acknowledge receipt of an addendum/addenda may be considered an irregularity in the Bid: Addendum number(s) received: []1; [] 2; [] 3; [] 4; [] 5; [] 6;[] 7; [] 8; [] 9 No Addendum/Addenda Were Received (check and initial). The Bidder represents that it has not retained a person to solicit or secure a City contract (upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee) except for retention of bona fide employee or bona fide established commercial selling agencies for the purpose of securing business. M.Bidder's Designated Contact Name: Katn Rnnn~v Phone: 650-463-4977 Title: Project Manaqer Fax The firm and individuals listed below, certify that they do not discriminate in employment with regards to age, race, color, religion, sex, national origin, ancestry, disability, or sexual preference; that they are in compliance with all federal, state, and local directives and executive orders regarding nondiscrimination in employment. , Bidder is required to provide a certificate in good standing from the State of California with its Bid. The undersigned hereby agrees to, and accepts the terms and conditions of this IFB. 1S~n_ature) Tom Del Conte (Pdnted name of signatory) Signatures (Must be the same signature(s) as will appear on Contract): President (Title of signatory - First Officer) Seco Office * ~-'<~i'g nature) ~ ~ Jose Luis Magana (Printed name of signatory) Construction Division Manager (Title of signatory- Second Officer) Note:Califomia Corporations Code Section 313 requires two corporate officers to execute contracts. The signature of First Officer* mus_.___t be one of the following: Chairman of the Board," Presiden# or Vice President. The signature of the Second Officer** must be one of the following: Secretary; Assistant Secretary; Chief Financial Officer, or Assistant Treasurer. In the alternative, a certified corporate resolution attesting to the signatory authority of the individuals signing in their respective capacities is acceptable. CITY OF PALO ALTO IFB NO. 135201-A PAGE 3 OF 4 PART III- BIDDER INFORMATION SECTION 300A Or, R.The undersigned certifies that the Bidder is not a corporation, and is not subject to the requirements of California Corporations code, and hereby agrees to, and accepts the terms and conditions of this IFB (SignatJe) (Printed name of signatory) (Title of signatory) PAGE 40~ 4CITY OF PALO ALTO IFB NO. 135201-A PART II - AFFIDAVIT-;. . _,.-===~SECTION 400 NONCOLLUSION AFFIDAVIT TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID State of California ) County of Santa Clara ) ) ss Tort] De] Coiq-Le ........ being first duly sworn, deposes and says that he or she is Presi deiqt of L)CL, Inc. , the party making the forgoing bid that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solidted any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company assodation, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Signature First Officer*: Del Conte's ~aping,~c. . Name: Tom Del Conte (Print or type name) Signature Second Officer*: Name:Jose Luis Magana (Print or type name) Signature(s) Must Be Same Signature(s) as Appear(s) on Section 300A CERTIFICATE OF ACKNOWLEGMENT (Civil Code § 1189). ,~ Y i%-t ) COUNTY OF -.~{1 i:'L, iQ"l ~ ~/) ....,. , .. On ~ t~.h~ OU.} ,,before (~[ ~ ~)l(~ I~, a nota~ public in and for said County, personally app~are~ I~ ~ ~ [:q~ ~, personally known to me (or prov~ to me on the basis of satisfado~ evidence) to be the person(s) ~ose name(s) is/are subscribed to the within instrument and acknowledged to me that h~sh~they executed the same in hiWher/their authorized ~paci~(ies), and that by hi~her/their signature(s) on the inst~ment the person(s), or the entity upon behalf of which the person(s) acted, ex~ut~ the instrument. ~e~mY ha, d and o~ffi~, ialis~al. Signatur ~..(Seal) Comm, if 1308332 NOTARY PUBLIC- CALIFORNIA Al~meds County "" My Comm. Expires June 9, 2005 CITY OF PALO ALTO IFB No. 135201-A PAGE 1 OF 1 INSCO INSURANCE SERVICES, INC. Underwriting Manager for: Developers Surety and Indemnity Company Indemnity Company of California 17780 Fitch, Suite 200 ¯ Irvine, California 92614 - (949) 263-3300 Bond No." n/a BID BOND KNOW ALL MEN BY THESE PRESENTS, that we Del Conte' s Landscaping, Inc. as Principal, and Developers Surety and Indemnity Company a corporation duly organized under the laws of the State of California as Surety, are held and firmly bound unto CITY OF PALO ALTO 250 Hamilton Avenue, Palo Alto, CA 94301 as Obligee, in the sum of TEN PER CENT OF THE AMOUNT BID (lO%) for payment of which sum well and truly to be made, Principal and Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted a bid for ROBLES PARK NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt payment of labor and material furnished in the prosecution thereo~ or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount specified in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect. Signed and sealed this 2OTH day of NOVEMBER ,2001. PRINCIPAL: Del Conte's Landsca , Inc. ~D-1118 (RE~'. 1/01) CONFORMS TO AIA DOCUMENT A310 2/70 ED. SURETY: ..-~, Developers Surety and I/~rdemni~C.~pany GORDON J. FIS~ ....Att0rne~~-Fact LIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of C~O~ County of CO~ COST~:' On ii/20/01 DATE personally appeared before me,~1~. A. At-war,i:, Notary Pt~b]ic , NAME, TITLE OF OFFICER- E.G., "JANE DOE, NOTARY PUBLIC" GORDON J. FISCHER NAME(S) OF SIGNER(S) personally known to me - OR - [[] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/herltheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of~his form. CAPACITY CLAIMED B.Y, SIGNER DESCRIPTION OF ATTACHED DOCUMENT INDIVIDUAL CORPORATE OFFICER TITLE(S) [[] PARTNER(S)[[] LIMITED GENERAL I~ATI'ORNEY-IN-FACT [[]TRUSTEE(S) [[]GUARDIAN/CONSERVATOR [[]OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) INDEMNITY COMPANY TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE DEVELOPERS SURETY AND No, 5907 S-4067/GEEF 2/98 © 1993 NATIONAL NOTARY ASSOCIATION ¯ 8236 Remmel Ave., P.O. Box 7184 ¯ Canoga Park, CA 91309-7184 POWER OF ATTORNEY FOR DEVELOPERS SURETY AND INDEMNITY COMPANY INDEMNITY COMPANY OF CALIFORNIA PO BOX 197~9~,-IRVINE, CA 92623 ° (~)49) 263-3300 ..... KNOW ALL MEN BY THESE PRESENTS, that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, do each severally, but not jointly, hereby make, constitute and appoint: ***Frank R. Olsson, Gordon J. Fischer, Jocelyn Y. Quirt, jointly or severally*** as the true and lawful Attorney(s)-in-Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations as sureties, bonds, undertakings and contracts of suretyship giving and granting unto said Attorney(s)-in-Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation, and all of the acts of said Attorney(s)-in-Fact, pursuant to these presents, are hereby ratified and confirmed. This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Board of Directors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of November I, 2000: RESOLVED, that the Chairman of the B6ard, the President and any Vice President of the corporation be, and that each of them hereby is, authorized to execute Powers of Attorney, qualifying the attorney(s) named in the Powers of Attorney to execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney; RESOLVED, FURTHER, that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporation when so affixed and in the future with respect to any bond, undertaking or contract of suretyship to which it is attached. IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by their respective Executive Vice President and attested by their respective Secretary this 8'h day of November, 2000. David H. Rhodes, Executive Vice President Walter A. Crowell, Secretary STATE OF CALIFORNIA COUNTY OF ORANGE ) )ss. ) On November 8, 2000, before me, Diane J. Kawata, personally appeared David H. Rhodes and Walter A. Crowell, personally "known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the entity upon behalf of which the persons acted, executed the instrument. Signature WITNESS my hand and official seal. CERTIFICATE I ~tm~. DIANE J. KAWATA ,. z~,"~ COMM. #1 ~ 67928 ~ ~ tR'I~RY PUSUI~ - CALIFORI~ ~ ~ ORANGE COUNTY The undersigned, as Chief Operating Officer of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked, and furthermore, that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth in the Power of Attorney, are in force as of the date of this Certificate. This Certificate is executed in the City of Irvine, California, the 2 0T~H day of NOVElv!.BER , 2 0 0 1 By David G. Lane, Chief Operating Officer ID-1380 (11/00) PRODUCER Cook, Disharoon & Greathouse P.O. Box 12909 Oakland CA 94604- Gary A. Duckworth Phone No.510-437-1900 Fax No. INSURED Del Conte's L~ndscaping, Vision Recycling 41900 Boscell Road Fremont CA 94538 Inc. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. _.COMPANIES AF~Q__~.ING COVERAGE COMPANY A State Compensation Ins. Fund COMPANY .B Specialty National Ins. Co. COMPANY C Fireman' s Fund Insurance Co. COMPANY D THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TYPE OF INSURANCE POLICY NUMBERCO POUCY EFFECTIVE POLICY EXPIRATION LTRI DATE (MM/DDPP0 DATE (MM/DDIY'0 LIMITS ~ERAL LIABILITY tMERCIAL GENERAL LIABILITY ~_____]~ CLAIMS MADE [~OCCURB ~OWNER'S&CONTRACTOR'SPROT B AUTOMOBILE LIABILITY ----1 ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON-OWNED AUTOS ~__~ .Physical Damage c A A 3XZ13749000 B ~RAGE LIABILI'P,' ANY AUTO 3XZ13749000 COMP DED: $I000 COLL DED: $I000 03/07/01 03/07/0! 03/07/02 03/07/01 ~ESS LIABILh-Y UMBRELLA FORM OTHER THAN UMBRELLA FORM WORKERS COMPENSATION AND INCL EMPLOYERS" LIABILITY THE PROPRIE-TOPJ ~! PARTNERS/EXECUTIVE OFFICERS ARE:EXCL OTHER Rented/Leased Equipment XYZ00075253302 290152901 290152901 3XZ13749000 03/07/01 03107101 03/07/01 02/20/01 02/20/01 03/07/02 03/07/02 03/07102 04/01/02 04/01/02 GENERAL AGGREGATE $ 2, 000, 000 PRODUCTS - COMP/OP AGG PERSONAL & ADV INJURY EACH OCCURRENCE FIRE DAMAGE (Any one fire) MED EXP (Any ane person) IAUTO ONLY-EA ACCIDENT OTHER THAN AUTO ONLY: EACH ACCIDENT AGGREGATE s2,000,000 sl,000,000 sl,000,000 sl00,000 s5,000 COMBINED SINGLE LIMIT $ 1, 000, 000 BODILY INJURY (Per person)$ BODILY INJURY (Per accident)$ PROPERTY DAMAGE S EACH OCCURRENCE $ 1 ~ 000 ~ 000 AGGREGATE I $ 1, 000, 000 03/07/0i 03/07/02 WC STATU-OTH."X TORY LIMITS I ! ER f EL EACH ACCIDENT I $ 11000 r 000 EL DISEASE - POLICY LIMIT I $ 1, 000, 000 EL DISEASE- EA EMPLOYEE I $ 1 , 000 t 000 50,000 DESCRIPTIONOFOPERATIONSILOCATIONSNEHICLESISPECIALITEMS All California Operations of the Named Insured. 30 day notice of cancel/ i0 day notice for non payment or non reporting of payroll. "For Bid Purposes only" BIDPURI SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF. THE ISSUING COMPANY WILL MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY. ITS AGENTS OR REPRESENTATIVES. Gary A. Duckworth FORMAL CONTRACT SECTION 500 CONTRACT No. (Public Work) Community Services Department This Contract, number dated is entered into by and between the City of Palo Alto, a chartered city and a municipal corporation of the State of California ("City"), and Del Conte's Landscaping, Inc. ("Contracto¢'). For and in consideration of the covenants, terms, and conditions (the provisions) of this Contract, City and Contractor ("the parties") agree: Term. This Contract shall commence and be binding on the parties on the Date of Execution of this Contract, and shall expire on the date of recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder, subject to the earlier termination of this Contract. General Scope of Proiect and Work. Contractor shall furnish labor, services, materials and equipment in connection with the construction of the Project and complete the Work in accordance with the covenants, terms and conditions of this Contract to the satisfaction of City. The Project and Work is generally described as follows: Title of Project:Robles Park Facilities Improvements and Irrigation Renovation, Invitation for Bid (IFB) Number 135201-A Bid:$345,109 (includes Add Alternate Items 6 through 9) 3o Contract Documents. This Contract shall consist of the documents set forth below, which are on file with the City Clerk and are hereby incorporated by reference. For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this Contract, these documents and the provisions thereof are set forth in the following descending order of precedence. This Contract. Invitation For Bid. Project Specifications. Drawings. Change Orders. Bid. Supplementary Conditions. General Conditions. Standard Drawings and Specifications (1999). Certificate of Insurance, Performance Bond, Labor & Materials (Payment) Bond. Other Specifications, or part thereof, not expressly incorporated in the Contract Specifications or the Standard Drawings and Specifications (1999). Any other document not expressly mentioned herein which is issued by City or entered into by the parties. Compensation. In consideration of Contractor's performance of its obligations hereunder, City shall pay to Contractor the amount set forth in Contractor's Bid in accordance with the provisions of this Contract and upon the receipt of written invoices and all necessary supporting documentation within the time set forth in the Contract Specifications and the Standard Drawings and Specifications (1999), or, if no time is stated, within thirty (30) Days of the date of receipt of Contractor's invoices. Insurance. On or before the Date of Execution, Contractor shall obtain and maintain the policies of insurance coverage described in the Invitation For Bid on terms and conditions and in amounts as may be required by the Risk Manager. City shall not be obligated to take out insurance on Contractor's personal property or the personal property of any person performing labor or services or supplying materials or equipment under the Project. Contractor shall furnish City with the certificates of insurance and with original endorsements affecting coverage required under this Contract on or before the Date of Execution. The certificates and endorsements for each insurance policy shall be signed by a person who is authorized by that insurer to bind coverage in its behalf. Proof of insurance shall be mailed to the Project Manager to CITY OF PALO ALTO IFB NO. 135201 rev. 12/00 PAGE 1 OF 7 FORMAL CONTRACT the address set forth in Section 15 of this Contract. SECTION 500 Indemnification. Contractor agrees to protect, defend, indemnify and hold City, its Council members, officers, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments, arising, in whole or in part, directly or indirectly, at any time from any injury to or death of persons or damage to property as a result of the willful acts or the negligent acts or omissions of Contractor, or which results from Contractor's noncompliance with any Law respecting the condition, use, occupation or safety of the Project site, or any part thereof, or which arises from ContractoKs failure to do anything required under this Contract or for doing anything which Contractor is required not to do under this Contract, or which arises from conduct for which any Law may impose strict liability on Contractor in the performance of or failure to perform the provisions of this Contract, except as may arise from the sole willful acts or negligent acts or omissions of City or any of its Council members, officers, employees, agents or representatives. This indemnification shall extend to any and all claims, demands, or liens made or filed by reason of any work performed by Contractor under this Contract at any time during the term of this Contract, or arising thereafter. To the extent Contractor will use hazardous materials in connection with the execution of its obligations under this Contract, Contractor further expressly agrees to protect, indemnify, hold harmless and defend City, its City Council members, officers and employees from and against any and all claims, demands, liabilities, losses, damages, costs, expenses, liens, penalties, suits, or judgments City may incur, arising, in whole or in part, in connection with or as a result of Contractor's willful acts or negligent acts or omissions under this Contract, under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.. 9601-6975, as amended); the Resource Conservation and Recovery Act (42 U.S.C.. 6901-6992k, as amended); the Toxic Substances Control Act (15 U.S.C.. 2601-2692, as amended); the Carpenter- Presley-Tanner Hazardous Substance Account Act (Health & Safety Code,. 25300-25395, as amended); the Hazardous Waste Control Law (Health & Safety Code,. 25100-25250.25, as amended); the Safe Drinking Water and Toxic Enforcement Act (Health & Safety Code,. 25249.5-25249.13, as amended); the Underground Storage of Hazardous Substances Act (Health & Safety Code,. 25280-25299.7, as amended); or under any other local, state or federal law, statute or ordinance, or at common law. Assumption of Risk. Contractor agrees to voluntarily assume any and all risk of loss, damage, or injury to the property of Contractor which may occur in, on, or about the Project site at any time and in any manner, excepting such loss, injury, or damage as may be caused by the sole willful act or negligent act or omission of City or any of its Council members, officers, employees, agents or representatives. Waiver. The acceptance of any payment or performance, or any part thereof, shall not operate as a waiver by City of its rights under this Contract. A waiver by City of any breach of any part or provision of this Contract by Contractor shall not operate as a waiver or continuing waiver of any subsequent breach of the same or any other provision, nor shall any custom or practice which may arise between the parties in the administration of any part or provision of this Contract be construed to waive or to lessen the right of City to insist upon the performance of Contractor in strict compliance with the covenants, terms and conditions of this Contract. No Exoneration By Inspection: The City has the right, but not the duty, to inspect Contractor's Work. The right of inspection is solely for the benefit of City. Contractor has the obligation to complete the Work in a satisfactory manner in compliance with Contract requirements. The presence of a City inspector does not shift that obligation to the City or relieve Contractor from its obligations to complete the Work in a satisfactory manner in compliance with the Contract requirements. 10.Compliance with Laws. Contractor shall comply with all Laws now in force or which may hereafter be in force pertaining to the Project and Work and this Contract, with the requirement of any bond or fire underwriters or other similar body now or hereafter constituted, with any discretionary license or permit issued pursuant to any Law of any public agency or official as well as with any provision of all recorded documents affecting the Project site, insofar as any are required by reason of the use or occupancy of the Project site, and with all Laws pertaining to nondiscrimination in employment and hazardous materials. CITY OF PALO ALTO IFB NO. 135201 rev. 12/00 PAGE 2 OF 7 FORMAL CONTRACT SECTION 500 11.Bonds. As a condition precedent to City's obligation to pay compensation to Contractor, and on or before the Date of Execution, Contractor shall furnish to the Project Manager the Bonds as required under the Invitation For Bid. 12.Representations and Warranties. In the supply of any materials and equipment and the rendering of labor and services during the Course and scope of the Project and Work, Contractor represents and warrants: Any materials and equipment which shall be used during the course and scope of the Project and Work shall be vested in Contractor; bo Any materials and equipment which shall be used during the course and scope of the Project and Work shall be merchantable and fit to be used for the particular purpose for which the materials are required; Co do Any labor and services rendered and materials and equipment used or employed during the course and scope of the Project and Work shall be free of defects in workmanship for a period of one (1) year after the recordation of the Notice of Substantial Completion, or, if no such notice is required to be filed, on the date that final payment is made hereunder; Any manufacturer's warranty obtained by Contractor shall be obtained or shall be deemed obtained by Contractor for and in behalf of City. eo Any information submitted by Contractor prior to the award of Contract, or thereafter, upon request, whether or not submitted under a continuing obligation by the terms of the Contract to do so, is true and correct at the time such information is submitted or made available to the City; Contractor has not colluded, conspired, or agreed, directly or indirectly, with any person in regard to the terms and conditions of Contractor's Bid, except as may be permitted by the Invitation For Bid; g°Contractor has the power and authority to enter into this Contract with City, that the individual executing this Contract is duly authorized to do so by appropriate resolution, and that this Contract shall be executed, delivered and performed pursuant to the power and authority conferred upon the person or persons authorized to bind Contractor; Contractor has not made an attempt to exert undue influence with the Purchasing Manager or Project Manager or any other person who has directly contributed to City's decision to award the contract to Contractor; There are no unresolved claims or disputes between Contractor and City which would materially affect Contractor's ability to perform under the Contract; Contractor has furnished and will furnish true and accurate statements, records, reports, resolutions, certifications, and other written information as may be requested of Contractor by City from time to time during the term of this Contract; Contractor and any person performing labor and services under this Project are duly licensed by the State of California as required by California Business & Professions Code Section 7028, as amended; and Contractor has fully examined and inspected the Project site and has full knowledge of the physical conditions of the Project site. 13.Assi.qnment. This Contract and the performance required hereunder is personal to Contractor, and it shall not be assigned by Contractor. Any attempted assignment shall be null and void. 14.Claims of Contractor. All claims pertaining to extra work, additional charges, or delays within the Contract Time or other disputes arising out of the Contract shall be submitted by Contractor to City in writing by certified or registered mail within ten (10) Days after the claim arose or within such other time as may be CITY OF PALO ALTO IFB NO. 135201 PAGE 3 OF 7 rev. 12/00 FORMAL CONTRACT SECTION 500 permitted or required by law, and shall be described in sufficient detail to give adequate notice of the substance of the claim to City. 15.Audits by City. During the term of this Contract and for a period of not less than three (3) years after the expiration or earlier termination of this Contract, City shall have the right to audit Contractor's Project-related and Work-related writings and business records, as such terms are defined in California Evidence Code Sections 250 and 1271, as amended, during the regular business hours of Contractor, or, if Contractor has no such hours, during the regular business hours of City. 16.Notices. All agreements, appointments, approvals, authorizations, c!aims, demands, Change Orders, consents, designations, notices, offers, requests and statements given by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if (1) personally served, (2) sent by the United States mail, postage prepaid, (3) sent by private express delivery service, or (4) in the case of a facsimile transmission, if sent to the telephone FAX number set forth below during regular business hours of the receiving party and followed within two (2) Days by delivery of a hard copy of the material sent by facsimile transmission, in accordance with (1), (2) or (3) above. Personal service shall include, without limitation, service by delivery and service by facsimile transmission. To City:City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 Copy to:City of Palo Alto Community Services Department 1305 Middlefield Road Palo Alto, CA 94301 Attn: Kate Rooney, Project Manager To Contractor: Del Conte's Landscaping, Inc. 41900 Boscell Road Fremont, CA 94538 Attn: Tom Del Conte 17.Appropriation of City Funds. This Contract is subject to the fiscal provisions of Article III, Section 12 of the Charter of the City of Palo Alto. Any charges hereunder for labor, services, materials and equipment may accrue only after such expenditures have been approved in advance in writing in accordance with applicable Laws. This Contract shall terminate without penalty (1) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (ii) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer available. This Section 16 shall control in the event of a conflict with any other provision of this Contract. 18.Miscellaneous. Bailee Disclaimer. The parties understand and agree that City does not purport to be Contractor's bailee, and City is, therefore, not responsible for any damage to the personal property of Contractor. Consent. Whenever in this Contract the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent. Controlling Law. The parties agree that this Contract shall be governed and construed by and in accordance with the Laws of the State of California. CITY OF PALO ALTO IFB NO. 135201 PAGE 4 OF 7 rev. 12/00 FORMAL CONTRACT SECTION 500 d.Definitions. The definitions and terms set forth in Section 1 of the Standard Drawings and Specifications (1992) of this Contract are incorporated herein by reference. Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to perform its obligations under this Contract which directly results from an Act of God or an act of a superior governmental authority. Headings. The paragraph headings are not a part of this Contract and shall have no effect upon the construction or interpretation of any part of this Contract. Incorporation of Documents. All documents constituting the Contract documents described in Section 3 hereof and all documents which may, from ti.me to time, be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and shall be deemed to be part of this Contract. Integration. This Contract and any amendments hereto between the parties constitute the entire agreement between the parties concerning the Project and Work, and there are no other prior oral or written agreements between the parties that are not incorporated in this Contract. Modification of Agreement. This Contract shall not be modified or be binding upon the parties, unless such modification is agreed to in writing and signed by the parties. Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or other stipulation in the Contract shall define or otherwise control, establish, or limit the performance required or permitted or to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. Resolution. Contractor shall submit with its Bid a copy of any corporate or partnership resolution or other writing, which authorizes any director, officer or other employee or partner to act for or in behalf of Contractor or which authorizes Contractor to enter into this Contract. Severability. If a court of competent jurisdiction finds or rules that any provision of this Contract is void or unenforceable, the provisions of this Contract not so affected shall remain in full force and effect. Status of Contractor. In the exercise of rights and obligations under this Contract, Contractor acts as an independent contractor and not as an agent or employee of City. Contractor shall not be entitled to any rights and benefits accorded or accruing to the City Council members, officers or employees of City, and Contractor expressly waives any and all claims to such rights and benefits. no Successors and Assigns. The provisions of this Contract shall inure to the benefit of, and shall apply to and bind, the successors and assigns of the parties. Time of the Essence. Time is of the essence of this Contract and each of its provisions. In the calculation of time hereunder, the time in which an act is to be performed shall be computed by excluding the first Day and including the last. If the time in which an act is to be performed falls on a Saturday, Sunday, or any Day observed as a legal holiday by City, the time for performance shall be extended to the following Business Day. po Alternative Dispute Resolution. The parties shall endeavor to resolve any disputes or claims arising out of or relating to this Contract by mediation, which, unless the parties agree otherwise, shall be conducted under the auspices of the Judicial Arbitration and Mediation Service (JAMS), San Jose, California. The intent of the parties is that the mediation shall proceed in advance of litigation; however, if any party should commence litigation before the conclusion of mediation, such litigation, including discovery, shall be stayed pending completion of mediation, and by executing this Contract the parties stipulate to mediation in accordance with Santa Clara County Superior Court Local Rule 1.15 or Rule 2-3(b) of the ADR Local Rules of the U.S. District Court for the Northern District of California, as such rules may be amended from time to time. The parties shall share the cost of the mediation, including the mediator's fee, equally. Any written agreement CITY OF PALO ALTO IFB NO. 135201 rev. 12/00 PAGE 5 OF 7 FORMAL CONTRACT SECTION 500 reached in mediation shall be enforceable pursuant to California Code of Civil Procedure § 664.6, as amended. qo Venue. Unless the parties mutually agree otherwise, mediation shall take place in San Jose, California. In the event that litigation is commenced by any party hereunder, the parties agree that such action shall be vested exclusively in the state courts of California in the County of Santa Clara or in the United States District Court for the Northern District of California. Recovery of Costs. Each Party shall bear its own costs, including attorney's fees, through the completion of mediation. If the claim or dispute is not resolved through mediation, or if litigation is necessary to enforce a settlement reached at mediation pursuant to California Code of Civil Procedure § 664.6, as amended, then the prevailing party in any subsequent litigation may recover its reasonable costs, including attorney's fees, incurred subsequent to conclusion of the mediation. Flow-down. Contractor agrees to include provisions of this Contract relating to Alternative Dispute Resolution, Venue. and Recovery of Costs in any subcontracts or major material purchase agreements which it enters into in connection with this Contract, and to require its subcontractors to include those provisions in any sub-contracts or major material purchase agreements, such that any mediation or litigation of any claim or dispute asserted by a subcontractor or major material supplier will be consolidated with any related claim or dispute between the Contractor and the City. Should the Contractor fail to do so, such that the City is required to defend an action brought by a subcontractor or material supplier inconsistent with the Alternative Dispute and Venue provisions of this Contract, Contractor shall indemnify City for City's costs of defense, including reasonable attorney's fees. IN WITNESS WHEREOF, the parties have by their duly appointed representatives executed this Contract in the city of Palo Alto, County of Santa Clara, State of California on the date first stated above. A-I-rEST: APPROVED AS TO FORM: City Clerk CITY OF PALO ALTO By: Its Mayor Senior Assistant City Attorney APPROVED:CONTRACTOR: Assistant City Manager By: Name: Title: Director of Administrative Services Contract Manager (Insurance Review) By: Name: Title: (Compliance with California Corporations Code. 313 is required if the entity on whose behalf this contract is signed is a corporation. In the alternative, a certified corporate resolution attesting to the signatory authority of the individuals signing in their respective capacities is acceptable) CITY OF PALO ALTO IFB NO. 135201 rev. 12/00 PAGE 6 OF 7 FORMAL CONTRACT SECTION 500 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code. 1189) STATE OF COUNTY OF On , before me, _, a notary public in and for said County, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) CITY OF PALO ALTO IFB NO. 135201 rev. 12/00 PAGE 7 OF 7