CONTACT_TEMPLATE_Task_Order_Construction_Contract_Template_clean.pdf

TASK ORDER CONSTRUCTION CONTRACT Rev. ____ 2023

TASK ORDER CONSTRUCTION CONTRACT

Contract No. <insert field>

City of Palo Alto

<insert field for title>

(<insert # field>-Year Task Order Contract)

2 Rev. _____ 2023

TABLE OF CONTENTS

SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS……………………………………...…………..6

1.1 Recitals…………………………………………………………………………………………………………………….6

1.2 Definitions……………………………………………………………………………………………………………….7

SECTION 2 THE PROJECT………………………………………………………………………………………………………...8

SECTION 3 THE CONTRACT DOCUMENTS………………………………………………………………………………..8

3.1 List of Documents……………………………………………………………………………………….……

3.2 Order of Precedence……………………………………………………………………………………………

SECTION 4 CONTRACTOR’S DUTY……………………………………………………………………………….…………..9

4.1 Contractor's Duties…………………………………………………………………………………………………..9

4.1.1 Working Hours…………………………………………………………………………………………………..9

4.1.2 Excavation…………………………………………………………………………………………………..9

4.1.3 Representative Present……………………………………………………………………………………..9

4.1.4 Coordinating…………………………………………………………………………………………………..9

4.1.5 Lab Testing…………………………………………………………………………………………………..9

4.2 On-Call Provision………………………………………………………………………………………………………9

4.2.1 Work Performed within Term……………………………………………………………………………………9

4.2.2 Mandatory Pre-construction meeting…………………………………………………………………………9

4.2.3 Specific Scope per Task Order………………………………………………………………………………………9

4.2.4 Objections or Questions ………………………………………………………………………………………………10

4.2.5 Task Order Compensation ……………………………………………………………………………………………10

4.2.5 Task Order Compensation ……………………………………………………………………………………………10

4.3 Guarantee to Repair Period…………………………………………………………………………………………10

SECTION 5 PROJECT TEAM……………………………………………………………………………………………………..100

5.1 Contractor's Cooperation………………………………………………………………………………………..10

SECTION 6 TIME OF COMPLETION……………………………………………………………………………………

6.1 Time Is of Essence…………………………………………………………………………………………………….100

6.2 Commencement of Work…………………………………………………………………………………………100

6.3 Contract Time…………………………………………………………………………………………………………..100

6.4 Liquidated Damages…………………………………………………………………………………………………10

6.4.1 Other Remedies……………………………………………………………………………………………………..112

3 Rev. _____ 2023

6.5 Adjustments to Contract Time………………………………………………………………………………….112

SECTION 7 COMPENSATION TO CONTRACTOR……………………………………………………………….……….112

7.1 Maximum Compensation and Contract Sum……….…………………………………………….………112

7.2 Full Compensation……………………………………………………………………………………………………112

7.3 Payment……………………………………………………………………………………………………112

7.3.1 Task order compensation ……………………………………………………………………………………113

7.3.2 Retention ……………………………………………………………………………………………………113

7.3.4 Section 9.7 (Substantial Completion)…………………………………………………………………………113

SECTION 8 STANDARD OF CARE…………………………………………………………………………………….………..123

8.1 Standard of Care…………………………………………………………………………………..…………………13

SECTION 9 INDEMNIFICATION……………………………………………………………………………………………..…12

9.1 Hold Harmless……………………………………………………………………………………………..………….12

9.2 Survival………………………………………………………………………………………………………...…………134

SECTION 10 NON-DISCRIMINATION……..……………………………………………………………………...…………134

10.1 Municipal Code Requirement…………….………………………………..……………………..………….14

SECTION 11 INSURANCE AND BONDS.…………………………………………………………………………………134

11.1 Evidence of Coverage……………………………………………………………………….………………..14

SECTION 12 PROHIBITION AGAINST TRANSFERS…………………………………………………………….….…13

12.1 Assignment………………………………………………………………………………………….…………….14

12.2 Assignment by Law.……………………………………………………………………………………………14

SECTION 13 NOTICES ………………………………………………………………………………………………………….14

13.1 Method of Notice ………………………………………………………………………………………………14

13.2 Notice to Recipents ……………………………………………………………………………………………….15

13.3 Change of Address……………………………………………………………………………………..……….156

SECTION 14 DEFAULT……………………………………………………………………………………….………………...156

14.1 Notice of Default………………………………………………………………………………………………….156

14.2 Opportunity to Cure Default…………………………………………………………………………………156

SECTION 15 CITY'S RIGHTS AND REMEDIES…………………………………………………………………………..15

15.1 Remedies Upon Default……………………………………………………………………………………….15

15.1.1 Delete Certain Services…………………………………………………………………………………….15

15.1.2 Perform and Withhold……………………………………………………………………………………..167

15.1.3 Suspend The Construction Contract……………………………………….…………………………167

4 Rev. _____ 2023

15.1.4 Terminate the Construction Contract for Default………………………………………………17

15.1.5 Invoke the Performance Bond………………………………………………………………………….167

15.1.6 Additional Provisions……………………………………………………………………………………….167

15.2 Delays by Sureties……………………………………………………………………………………………….16

15.3 Damages to City…………………………………………………………………………………………………..178

15.3.1 For Contractor's Default…………………………………………………………………………………..178

15.3.2 Compensation for Losses……………………………………………….…………………………………178

15.4 Suspension by City……………………………………………………………………………………………….178

15.4.1 Suspension for Convenience……………………………………………………………………………..178

15.4.2 Suspension for Cause…………………………………………………..…………………………………..18

15.5 Termination Without Cause…………………………………………………………………………………17

15.5.1 Compensation………………………………………………………………………………………………….17

15.5.2 Subcontractors………………………………………………………………………………………………..189

15.6 Contractor’s Duties Upon Termination………………………………………………………………...189

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 Requests…………………………………………………………………………….201

SECTION 18 INDEPENDENT PARTIES……………………………………………………………………………………..201

18.1 Status of Parties……………………………………………………………………………………………………21

SECTION 19 NUISANCE……………………………………………………………………………………………………….…201

19.1 Nuisance Prohibited…………………………………………………………………………………………..21

SECTION 20 PERMITS AND LICENSES…………………………………………….……………………………………….201

SECTION 21 WAIVER…………………………………………………………………….……………………….…………….212

SECTION 22 GOVERNING LAW AND VENUE; COMPLIANCE WITH LAWS………………..……………….22

22.1 Governing Law and Venue……………………………………………………………………….………….21

22.2 Compliance with Laws…………………………………………………………………………………………21

22.2.1 Palo Alto Minimum Wage Ordinance…………….………………………………………………….21

5 Rev. _____ 2023

SECTION 23 COMPLETE AGREEMENT……………………………………………………………………………………21

23.1 Integration………………………………………………………………………………………………………….21

SECTION 24 SURVIVAL OF CONTRACT…………………………………………………………………………………..21

24.1 Survival of Provisions…………………………………………………………………………….……………21

SECTION 25 PREVAILING WAGES………………………………………………………………………………………….21

SECTION 26 NON-APPROPRIATION……………………………………………………………………………………….22

26.1 Appropriation………………………………………………………………………………………………………22

SECTION 27 AUTHORITY……………………………………………………………………………………………………….22

27.1 Representation of Parties…………………………………………………………………………………….22

SECTION 28 COUNTERPARTS………………………………………………………………………………………………..22

28.1 Multiple Counterparts………………………………………………………………………………………….22

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 Records……………………………………………………………………………….…………25

32.5.2 Payroll Verified ……………………………………………………………………………….…………25

32.5.3 Certified Payroll……………………………………………………………………………….…………25

32.5.4 Subject to Penalty……………………………………………………………………………….…………25

32.5.5 Location Information…………………………………………………………………………….…………25

32.6 Emplyment of Apprentices………………………………………………………………………………….…………25

6 Rev. _____ 2023

THIS TASK ORDER CONSTRUCTION CONTRACT (“Construction Contract”) entered into on <insert date field> (“Execution Date”) by and between the CITY OF PALO ALTO, a California chartered municipal corporation (“City”), and <insert field for contractor legal name> (“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 <insert field for type of entity> duly organized and in good standing in the State of<insert field for state>, California Contractor’s License Number <insert lic. # field> and Department of Industrial Relations Registration Number <insert DIR # field>. 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 <insert date field>, City issued an Invitation for Bids (“IFB”) to contractors for the <insert field for project title> (“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.

7 Rev. _____ 2023

1.2 Definitions.

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.

8 Rev. _____ 2023

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 <insert field for term>-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)

17) City of Palo Alto Traffic Control Requirements

9 Rev. _____ 2023

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.

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.

10 Rev. _____ 2023

4.2.4 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.

4.2.5 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.

4.2.6 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.

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.

11 Rev. _____ 2023

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 <insert field for amount in words> ($<insert field for amount in numerals>) 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 <insert field for amount in words> <insert field for amount in numerals> for the Term.

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:

12 Rev. _____ 2023

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.

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.

13 Rev. _____ 2023

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.

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.

14 Rev. _____ 2023

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 Attn:

[Include Construction Manager, If Applicable.]

City of Palo Alto Utilities Engineering 250 Hamilton Avenue Palo Alto, CA 94301 Attn:

In addition, copies of all Claims by Contractor under this Construction Contract shall be provided to the following:

Palo Alto City Attorney’s Office 250 Hamilton Avenue

15 Rev. _____ 2023

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:

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.

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.

16 Rev. _____ 2023

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.

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.

17 Rev. _____ 2023

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.

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

18 Rev. _____ 2023

(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 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.

19 Rev. _____ 2023

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.

20 Rev. _____ 2023

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.

21 Rev. _____ 2023

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.