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DATE:
TO:
FROM:
STAFF REPORT
CITY COUNCIL
CITY CLERK
File #600-35
February 7, 2012
Honorable Mayor and City Councilmembers
~~
Joni Pattillo, City Manager ° ~'
SUBJECT: Award of Bid -Contract No. 11-13, Civic Center Generator Equipment Pre-
purchase (Capital Improvement Project #930008)
Prepared by Steven Yee, Public Works Manager
EXECUTIVE SUMMARY:
The Civic Center Generator Project (CIP No. 930008) will replace the existing Civic Center
emergency generator with a larger unit capable of powering the entire Civic Center site. This
contract will pre-purchase the generator equipment in anticipation of the installation work which
will be awarded in a separate contract and is scheduled to occur in May 2012.
FINANCIAL IMPACT:
The adopted Fiscal Year 2011-2012 Budget includes $610,100 in funding for the Civic Center
Generator Project (CIP #930008). The total project cost includes $577,100 for equipment and
improvements, and $33,000 for project design. The funding for the project includes Equipment
Replacement -Internal Service Funding (ISF) of $145,595 and the remaining $464,505 is
funded by the General Fund. This contract will provide for the ordering and purchase of
generator equipment. The installation and improvements will be a separate bid package. The
recommended bid is in the amount $151,534.39 ($166,688 including a 10% contingency). The
total project budget is expected to be adequate to cover the bid price and the remaining
improvements and installation to be completed under a separate contract.
Funding Source Budget For
Equipment &
Improvements Recommended Bid
West Star Environmental
With 10% Contingency
Internal Service Fund #6201 $145,595 $145,595
General Fund #1001 $429,405 $ 21,093
TOTAL IMPROVEMENTS: $575,000 $166,688
RECOMMENDATION:
Staff recommends that that the City Council adopt the Resolution awarding Contract No. 11-13,
Civic Center Generator Equipment Pre-Purchase, to West Star Environmental Services, Inc.
Page 1 of 2 ITEM NO. 4.10
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Submit ed By
Public Works Director
DESCRIPTION:
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Submitted By
Administrative Services
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Reviewed y
Assistant City Manager
On June 21, 2011, the City Council approved the Five-Year Capital Improvement Program (CIP)
2010-2015, Fiscal Year 2011-2012 Update, which included the Civic Center Generator Project.
The Civic Center Generator Project will replace the existing Civic Center emergency generator
with a larger unit capable of powering the entire Civic Center site. The project includes
modification to the existing generator enclosure to accommodate the new larger generator as
well as modification to the Civic Center existing electrical rooms. Due to the extensive lead time
in ordering and delivering this certain type of generator, this contract will pre-purchase the
generator equipment in advance of securing a contractor to install and perform the necessary
Civic Center modifications. It is anticipated that the improvements will be completed in May
2012.
A total of three (3) bids were received on January 5, 2012, and a summary of the bids is
provided as Attachment 1. The low bid of $143,663.00 included an estimated delivery date of
June 5, 2012. The bid solicitation materials provided by the City required a delivery date of April
15, 2012. Due to this gap in time, the Peterson Power agreement is non-responsive to the
City's request The second lowest bid of $151,534.39 is able to meet the specifications in the
Contract, including the delivery date. Thus, Staff recommends that the City Council adopt the
Resolution (Attachment 2, with agreement included as Attachment 3) awarding Contract No. 11-
13, Civic Center Generator Equipment Pre-Purchase, to West Star Environmental Services, Inc.
as the lowest responsive bidder.
Staff anticipates delivery of the emergency generator by April 15, 2012, and to complete
installation and modification work in May 2012. Staff anticipates this item coming before the
City Council again to award the installation contract in late March 2012 with substantial
completion of the improvements by May 31, 2012.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None
ATTACHMENTS: 1. Bid Results
2. Resolution awarding Contract No. 11-13, Civic Center
Generator Equipment Pre-Purchase, to West Star
Environmental Services, Inc., with Exhibit A.
3. Agreement with West Star Environmental Services, Inc.
(Exhibit A to the Resolution)
Page 2 of 2
SUMMARY OF BID RESULTS -January 5, 2012
CONTRACT 11-13, Civic Center Generator Equipment Pre-Purchase
ENGINEER'S ESTIMATE PETERSO N POWER WEST S TAR ENV. HARRIS E LECTRIC
BID
ITEM
ITEM DESCRIPTION UNIT OF
MEAS.
QTY UNIT
PRICE TOTAL
PRICE
UNIT PRICE TOTAL
PRICE
UNIT PRICE TOTAL
PRICE
UNIT PRICE
TOTAL PRICE
1 Emergency Generator LS 1 $ 93,500 $ 93,500.00 $101,162.00 $ 101,162.00 $ 98,233.20 $ 98,233.20 $ 135,000.00 $ 135,000.00
2 Automatic Transfer LS 1 $ 24,200 $ 24,200.00 $ 16,293.00 $ 16,293.00 $ 13,727.19 $ 13,727.19 $ 42,500.00 $ 42,500.00
3 External Fuel Day Tank LS 1 $ 9,900 $ 9,900.00 $ 8,865.00 $ 8,865.00 $ 19,058.31 $ 19,058.31 $ 21,770.00 $ 21,770.00
4 Operational Testing LS 1 $ 7,150 $ 7,150.00 $ 17,343.00 $ 17,343.00 $ 20,515.69 $ 20,515.69 $ 8,000.00 $ 8,000.00
TOTAL: $ 134,750.00 $ 143,663.00 $ 151,534.39 $ 207,270.00
RESOLUTION NO. - 12
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
AWARDING CONTRACT NO. 11-13,
CIVIC CENTER GENERATOR EQUIPMENT PRE-PURCHASE,
TO WEST STAR ENVIRONMENTAL SERVICES, INC.
WHEREAS, the City of Dublin did, on January 5, 2012, publicly open, examine, and
declare all sealed bids for doing the work described in the approved Plans, Specifications, and
Modifications for Contract No. 11-13, Civic Center Generator Equipment Pre-Purchase, which
Plans, Specifications, and Modifications are hereby expressly referred to for a description of
said work and for all particulars relative to the proceedings under the request for bids; and
WHEREAS, said bids were submitted to the Public Works Director, who has
recommended that the bid hereinafter is the lowest and best bid for doing said work; and
WHEREAS, the apparent lowest bid for the Project was the bid of Peterson Power in the
amount of One Hundred Forty Three Thousand Six Hundred Sixty-Three dollars; and
WHEREAS, the specifications for Contract No. 11-13 indicated that the delivery date for
certain equipment must be no later than April 15, 2012; and
WHEREAS, the bid submitted by Peterson Power indicated a delivery date of June 5,
2012; and
WHEREAS, the apparent next lowest bid for Contract No. 11-13 was submitted by West
Star Environmental Services, Inc. in the amount of One Hundred Fifty-One Thousand, Five
Hundred Thirty-Four Dollars, and Thirty-Nine Cents ($151,534.39); and
WHEREAS, said bid submitted by West Star Environmental Services, Inc. was
responsive in all respects to the Plans, Specification and Modifications for Contract No. 11-13.
NOW, THEREFORE, the City Council of the City of Dublin does RESOLVE as follows:
1. The City Council of the City of Dublin hereby finds the bid submitted by Peterson Power
to be non-responsive to the bid solicitation materials prepared by the City.
2. The City council of the City of Dublin hereby finds the bid submitted by West Star
Environmental Services, Inc. in the amount of One Hundred Fifty-One Thousand, Five Hundred
Thirty-Four Dollars, and Thirty-Nine Cents ($151,534.39) to be the lowest, responsive bid.
3. The City Council of the City of Dublin does hereby award Contract No. 11-13, 2011 Civic
Center Generator Equipment Pre-Purchase, to the lowest responsible bidder therefore, to wit,
West Star Environmental Services, Inc., at a bid of One Hundred Fifty One Thousand, Five
Hundred Thirty Four Dollars, and Thirty Nine Cents ($151,534.39), the particulars of which bid
are on file in the Office of the Public Works Director.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Agreement, attached hereto as Exhibit "A."
PASSED, APPROVED AND ADOPTED this 7th day of February, 2012, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
Mayor
G:\CIP\Generator\Resolution of Award - PrePurchase.doc
1785299.1
AGREEMENT
CIVIC CENTER GENERATOR EQUIPMENT PRE-PURCHASE
CITY OF DUBLIN CONTRACT NO. 11-13
THIS AGREEMENT, dated for identification as of February 7, 2012, between the CITY OF
DUBLIN, a Municipal Corporation (hereinafter called "CITY"), and West Star Environmental
Services, Inc. (hereinafter called "CONTRACTOR").
The parties hereto mutually agree to the terms and conditions set forth herein.
1.01 CONTRACT DOCUMENTS.
Each of the items hereinafter referred to are incorporated herein by this reference as if set
forth in full herein.
Work called for in any one Contract Document and not mentioned in another is to be
performed and executed as if mentioned in all Contract Documents. The table of contents, titles,
and headings contained herein and in said documents are solely to facilitate reference to various
provisions of the Contract Documents and in no way affect or limit the interpretations of the
provisions to which they refer.
The Contract Documents, sometimes also referred to as "the Contract," consist of the
Notice to Contractors, the completed Proposal Form submitted by the Contractor to whom the
Contract is awarded, the Instructions to Bidders insofar as they relate to events which will occur or
actions to be taken after the submission of the Proposal, this Agreement, the Standard
Specifications, the Special Provisions, Plans, Drawings, Detail Book, and Technical Specifications,
the Standard Drawings, Details, and other such data and all versions thereof prepared by City
pursuant to Contract, and any modifications of any of the foregoing in the form of Addenda or
executed Change Order or otherwise effected in accordance with the terms of the Contract, the
surety bonds, bid bond, and Contractor's list of subcontractors.
1.02 DEFINITIONS.
Unless otherwise specifically provided herein, all words and phrases defined in the
Standard Specifications shall have the same meaning and intent in this Agreement.
1.03 AGREEMENT CONTROLS.
In the event of a conflict between the terms and conditions as set forth in this Agreement
and the terms and conditions set forth in other Contract Documents, the terms and conditions set
forth in this Agreement shall prevail.
1.04 SCOPE OF CONTRACT.
Contractor agrees to furnish all tools, equipment, apparatus, facilities, labor, and material
and transportation necessary to perform and complete in a good and workmanlike manner to the
satisfaction of the City, all the work called for, and in the manner designated in, and in strict
Page 1 of 11 of the Agreement
conformity with the Contract Documents for the project entitled: CIVIC CENTER GENERATOR
EQUIPMENT PRE-PURCHASE, CONTRACT NO. 11-13.
1.05 CONTRACT AMOUNT AND PAYMENTS.
City agrees to pay, and Contractor agrees to accept, in full payment for the above work,
the sum of ONE HUNDRED FIFTY ONE THOUSAND FIVE HUNDRED THIRTY FOUR DOLLARS
AND THIRTY-NINE CENTS ($151,534.39), which sum is to be paid according to the schedule and
in the manner set forth herein and subject to additions, deductions, and withholding as provided in
the Contract Documents. When it is provided in the Notice to Bidders, Instructions to Bidders, or
Proposal Form that Contractor is to be paid on the basis of the unit prices shown in his bid, instead
of a lump sum price, the Contractor agrees to accept, in full payment for the above work, the sum
computed in accordance with the actual amount of each item of work performed or material
furnished, at the unit price which Contractor bid for each such item in his Proposal Form, said unit
price to be determined as provided in the Standard Specifications and Special Provisions.
1.06 PROGRESS AND FINAL PAYMENTS.
Subject to the terms and conditions of the Contract Documents, City shall cause payments
to be made upon demand of Contractor in the manner set forth in the Standard Specifications.
1.07 RETENTION OF SUMS CHARGED AGAINST CONTRACTOR.
When, under the provisions of this Contract, City shall charge any sum of money against
Contractor, City shall deduct and retain the amount of such charge from the amount of the next
succeeding progress estimate, or from any other moneys due or that may become due Contractor
from City. If, on completion or termination of the Contract, sums due Contractor are insufficient to
pay City's charges against him, City shall have the right to recover the balance from Contractor or
his sureties.
1.08 COMMENCEMENT AND PROSECUTION OF WORK.
Contractor shall commence the work within TEN (10) working days from the award of
contract and shall diligently prosecute the same to final completion. Contractor shall return the
signed contract, performance and labor bonds and insurance certification within five (5) working
days after the receipt of contract from the City. The continuous prosecution of work by Contractor
shall be subject only to Excusable Delays as defined in this Agreement.
1.09 TIME OF COMPLETION.
The entire work shall be brought to completion in the manner provided for in the Contract
Documents on or before May 21, 2012, hereinafter called the ("Completion Date") from and after
the receipt by Contractor of the Notice to Proceed unless extensions of time are granted in
accordance with the Contract Documents.
Page 2 of 11 of the Agreement
1.10 PAYMENTS DO NOT IMPLY ACCEPTANCE OF WORK.
The payment of any progress payment, or the acceptance thereof by Contractor, shall not
constitute acceptance of the work or any portion thereof and shall in no way reduce the liability of
Contractor to replace unsatisfactory work or material, though the unsatisfactory character of such
work or material may not have been apparent or detected at the time such payment was made.
1.11 ACCEPTANCE NOT RELEASE.
Contractor shall correct immediately any defective or imperfect work which may be
discovered before final acceptance of the entire work. Any unsatisfactory materials shall be
rejected, notwithstanding that they may have been overlooked by the proper inspector. The
inspection of the work, or any part thereof, shall not relieve Contractor of any of his obligations to
perform satisfactory work as herein prescribed.
Failure or neglect on the part of the City or any of its authorized agents to condemn or
reject bad or inferior work or materials shall not be construed to imply an acceptance of such work
or materials if such becomes evident at any time prior to final acceptance of the entire work or all
materials, nor shall such failure be construed as barring City at any subsequent time from
recovering damages or of such a sum of money as may be required to build anew all portions of
the work in which fraud was practiced or improper materials used whenever City may discover the
same.
1.12 RELEASE UPON FINAL PAYMENT.
If requested to do so by City, at the time of final payment, as a condition precedent to final
payment, Contractor and each assignee under any assignment in effect at the time of final
payment shall execute and deliver a release in form and substance satisfactory to the City and
containing such exceptions as provided in Section 7100 of the Public Contract Code which shall
discharge City, its officers, agents, and employees of and from all liability, obligations, and claims
arising under this contract.
1.13 CITY'S RIGHT TO TAKE POSSESSION OF THE WORK IN WHOLE OR IN
PART_
Without limitation of Paragraph 1.19 whatsoever, the City of Dublin shall have the right at
any time to enter upon the work and perform work not covered by this Contract, or to occupy and
use a portion of the work, prior to the date of the final acceptance of the work as a whole, without in
any way relieving Contractor of any obligations under this Contract.
Such use or occupation of the work shall not be construed as an acceptance of any
portion of the work under this Contract, nor shall it affect the dates and times when payments shall
become due nor prejudice City's right, guarantees, or sureties.
1.14 NO WAIVER OF REMEDIES.
Neither the inspection by City or its agents, nor any order or certificate for the payment of
money, nor any payment for, nor acceptance of the whole or any part of the work by City, nor any
extensions of time, nor any position taken by City or its agents shall operate as a waiver of any
Page 3 of 11 of the Agreement
provision of this Agreement or of any power herein reserved to City or any right to damages herein
provided, nor shall any waiver of any breach of this Agreement be held to be a waiver of any other
or subsequent breach. All remedies provided in this Agreement shall be taken and construed as
cumulative; that is, in addition to each and every other remedy herein provided, and City shall have
any and all equitable and legal remedies which it would in any case have.
1.15 DETERMINATION OF DAMAGES.
The actual fact of the occurrence of damages and the actual amount of the damages
which City would suffer if the work were not completed within the specified times set forth are
dependent upon many circumstances and conditions which could prevail in various combinations,
and from the nature of the project, it is impracticable and extremely difficult to fix the actual
damages. Damages which City would suffer in the event of delay include loss of the use of the
Project, and in addition expenses of prolonged employment of an architectural and engineering
staff; costs of administration, inspection, and supervision; and the loss suffered by the public within
the City of Dublin by reasons of the delay in the completion of the project to serve the public at the
earliest possible time. Accordingly, the parties hereto agree, and by execution of this Agreement,
Contractor acknowledges that he understands, has ascertained and agrees, that the amounts set
forth herein as liquidated damages shall be presumed to be the amount of damages sustained by
the failure of Contractor to complete the entire work within the times specified.
1.16 LIQUIDATED DAMAGES.
The amount of the liquidated damages to be paid by Contractor to City for failure to
complete the entire work by the Completion Date (as extended, if applicable) will be FIVE
HUNDRED DOLLARS ($500) for each working day, continuing to the time at which the work is
completed. Such amount is the actual cash value agreed upon as the loss to City resulting from
Contractor's default.
1.17 PAYMENT OF DAMAGES.
In the event Contractor shall become liable for liquidated damages, City, in addition to all
other remedies provided by law, shall have the right to withhold any and all payments which would
otherwise be or become due Contractor until the liability of Contractor under this section is finally
determined. City shall have the right to use and apply such payments, in whole or in part, to
reimburse City for all liquidated damages due or to become due to City. Any remaining balance of
such payments shall be paid to Contractor only after discharge in full of all liability incurred by
Contractor under this section or otherwise. If the sum so retained by City is not sufficient to
discharge all such liabilities of Contractor, Contractor and his sureties shall continue to remain
liable to City until all such liabilities are satisfied in full. No failure by City to withhold any payment
as hereinbefore specified shall in any manner be construed to constitute a waiver of any right to
liquidated damages or any right to any such sum.
1.18 INDEMNITY AND HOLD HARMLESS.
Contractor shall assume the defense of, and indemnify and save harmless, the City, its
officers, employees, and agents, and each and every one of them, from and against all actions,
damages, claims, losses or expenses of every type and description to which they may be
subjected or put, by reason of, or resulting from, the performance of the work, provided that such
Page 4 of 11 of the Agreement
action, damage, claim, loss, or expense is attributable to bodily injury, sickness, disease or death,
or injury to, or destruction of property, whether upon or off the work, including the loss of use
thereof, and is caused in whole or in part by any negligent act or omission of the Contractor, and
subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any
of them may be liable, whether or not it is caused in part by a party indemnified hereunder.
1.19 CONTRACTOR SHALL ASSUME RISKS.
Until the completion and final acceptance by City of all work under this Contract, the work
shall be under Contractor's responsibility, care, and charge, including any period of time work is
suspended for any cause whatsoever. Contractor shall rebuild, repair, restore, and make good all
injuries, damages, re-erections, and repairs occasioned or rendered necessary by accidental
causes of any nature, to all or any portions of the work, except as otherwise agreed. It is
specifically contemplated that the City, its officers, employees, and invitees, will occupy and use
portions of the work prior to final acceptance. Such occupancy shall not relieve Contractor of
responsibility provided herein nor exonerate any surety or insurer of Contractor save and except
for items of routine maintenance and repair.
1.20 GENERAL LIABILITY OF CONTRACTOR.
Except as otherwise herein expressly agreed, Contractor shall do all the work and furnish
all the labor, materials, tools, power and light, and appliances, necessary or proper for performing
and completing the work herein required in the manner within the time herein specified. The
mention of any specific duty or liability of Contractor shall not be construed as limitation or
restriction of any general liability or duty of Contractor, and any reference to any specific duty or
liability shall be construed to be for the purpose of explanation.
1.21 FAILURE TO MAINTAIN INSURANCE.
During the term of this Agreement, and until final completion and acceptance of the work
by the City, the Contractor shall maintain in full force and effect insurance coverage in the forms
and amounts specified in the Standard Specifications. If, at any time during the performance of
this Contract, Contractor fails to maintain any item of required insurance in full force and effect,
Contractor shall immediately discontinue all work under the Contract and City will withhold all
Contract Payments due or that become due until notice is received by City that such insurance has
been restored in full force and effect and that the premiums therefor have been paid for a period
satisfactory to the City Manager.
1.22 EXTENSIONS OF TIME.
In the event City deems it necessary, in its sole discretion, to extend the time of
completion of work to be done under this Contract beyond the required Completion Date herein
specified, such extensions shall in no way release any guarantee given by Contractor pursuant to
the provisions of the Contract Documents, nor shall such extension of time relieve or release the
sureties on the bonds executed pursuant to said provisions. By executing such bonds, the sureties
shall be deemed to have expressly agreed to any such extension of time. The amount of time
allowed in any extension of time shall be limited to the period of excusable delay as defined herein
giving rise to the same as determined by Public Works Director.
Page 5 of 11 of the Agreement
1.23 EXCUSABLE DELAYS.
For the purpose of these Contract Documents, the term "Excusable Delays" shall mean,
and is limited to, delays caused directly by acts of God, acts of the public enemy, fires, riots,
insurrections, epidemics, quarantine restrictions, strikes, lockouts, sitdowns, acts of a
governmental agency, priorities or privileges established for the manufacture, assembly, or
allotment of materials necessary in the work by order, decree, or otherwise of the United States or
by any department, bureau, commission, committee, agent, or administrator of any legally
constituted public authority; changes in the work ordered by City insofar as they necessarily require
additional time in which to complete the work; the prevention by City of Contractor from
commencing or prosecuting the work because of the acts of others, excepting Contractor's
subcontractors; or the prevention of Contractor from commencing or prosecuting the work because
of a city-wide failure of public utility service.
The term "Excusable Delay" shall specifically not include: (1) any delay which could have
been avoided by the exercise of case, prudence, foresight, and diligence on the part of Contractor;
(2) any delay in the prosecution of parts of the work, which may in itself be unavoidable but which
does not necessarily prevent or delay the prosecution of other parts of the work, nor the completion
of the whole work within the time specified; (3) any reasonable delay resulting from time required
by City for review of plans and submittals required of Contractor and for the making of surveys,
measurements and inspections; and (4) any delay arising from an interruption in the prosecution of
the work on account of the reasonable interference from other Contractors employed by City,
which does not necessarily prevent the completion of the work within the time specified.
Excusable Delays, if any, shall operate only to extend the Completion Date (not in excess of the
period of such delay as determined by the City) but shall not under any circumstances increase the
sum City is to pay Contractor as provided in these Contract Documents.
1.24 CONTRACTOR TO SERVE NOTICE OF DELAYS.
Whenever Contractor foresees any delay in the prosecution of the work, and in any event
immediately upon the occurrence of any delay which Contractor regards as an excusable delay, he
shall notify the Public Works Director in writing of the probability of such delay and its cause, in
order that the Public Works Director may take immediate steps to prevent if possible the
occurrence or continuance of the delay, or if this cannot be done, may determine whether the delay
is to be considered excusable, how long it continues, and to what extent the prosecution and
completion of the work are delayed thereby. Said notice shall constitute an application for an
extension of time only if the notice requests such an extension and sets forth Contractor's estimate
of the additional time required together with a full description of the cause of the delay relied upon.
After the completion of any part or whole of the work, the Public Works Director, in
estimating the amount due Contractor, will assume that any and all delays which may have
occurred in its prosecution and completion have been avoidable delays, except such delays as
shall have been called to the attention of the Public Works Director at the time of their occurrence
and found by him to have been excusable. Contractor shall make no claim that any delay not
called to the attention of the Public Works Director at the time of its occurrence has been an
excusable delay.
Page 6 of 11 of the Agreement
1.25 EXTENSION OF TIME -EXCUSABLE DELAY.
Should any delays occur which the Public Works Director may consider excusable, as
herein defined, Contractor shall, pursuant to his application, be allowed an extension of time
beyond the time herein set forth proportional to said delay or delays in which to complete this
Contract; and, during an extension which may have been granted because of an excusable delay
or delays, City shall not charge liquidated damages against Contractor for such delay.
1.26 EXTENSION OF TIME DOES NOT WAIVE CITY'S RIGHTS.
The granting of any extension of time on account of delays which in the judgment of the
Public Works Director are excusable delays shall in no way operate as a waiver on the part of City
of its rights under this Contract excepting only the extension of the Completion Date.
1.27 NO PAYMENT FOR DELAYS.
No damages or compensation of any kind shall be paid to Contractor or any subcontractor
because of delays in the progress of the work whether such delays qualify for extension of time
under this Agreement or not.
Contractor waives all claims against City, its officials and employees, for any loss or
damage sustained by reason of delays beyond the Completion Date arising out of modifications of
this Agreement, including modifications deemed necessary or desirable by City for the correction of
errors or omissions in the Contract Documents.
1.28 CHANGES IN THE WORK.
Changes in the work made pursuant to changes issued in accordance with the Standard
Specifications and extensions of time of completion made necessary by reason thereof (beyond
the Completion Date) shall not in any way release any guarantee given by Contractor pursuant to
the provisions of the Contract Documents, or the Contract let hereunder, nor shall such changes in
the work relieve or release the sureties on bonds executed pursuant to the said provisions. By
executing such bonds, the sureties shall be deemed to have expressly agreed to any such change
in the work and to any extension of time made by reason thereof.
1.29 TERMINATION AFTER COMPLETION DATE.
In addition to any other rights it may have, City may terminate this Contract at any time
after the Completion Date as adjusted by any extensions of time for excusable delays that may
have been granted. Upon such termination Contractor shall not be entitled to receive any
compensation for services rendered by him before or after such termination, and he shall be liable
to City for liquidated damages for all periods of time beyond such termination date until the work is
completed.
1.30 CONTRACTOR BANKRUPT.
If Contractor should commence any proceeding under the Bankruptcy Act, or if Contractor
be adjudged a bankrupt, or if Contractor should make any assignment for the benefit of creditors,
or if a receiver should be appointed on account of Contractor's insolvency, then the City Council
Page 7 of 11 of the Agreement
may, without prejudice to any other right or remedy, terminate the Contract and complete the work
by giving notice to Contractor and his surety according to the provisions of Section 1.31.
Contractor's Surety shall have the right to complete the work by commencing thirty (30) days as
specified in Section 1.31; and, in the event Contractor's Surety fails to commence work within thirty
(30) days, City shall have the right to complete, or cause completion of the work, all as specified in
Section 1.31.
1.31 TERMINATION FOR BREACH OF CONTRACT.
If Contractor should abandon the work under this Contract, or if the Contract or any portion
of the Contract should be sublet or assigned without the consent of the City Council, or if the Public
Works Director should be of the opinion that the conditions of the Contract in respect to the rate of
progress of the work are not being fulfilled or any part thereof is unnecessarily delayed, or if
Contractor should willfully violate or breach, or fail to execute in good faith, any of the terms or
conditions of the Contract, or if Contractor should persistently refuse or fail to supply enough
properly skilled labor or materials, or fail to make prompt payment to subcontractors for material or
labor, or persistently disregard laws, ordinances, or proper instruction or orders of the Engineer,
then, notwithstanding any provision to the contrary herein, the City Council may give Contractor
and his Surety written notification to immediately correct the situation or the Contract shall be
terminated.
In the event that such notice is given, and, in the event such situation is not corrected, or
satisfactory arrangement for correction is not made within ten (10) calendar days from the date of
such notice, the Contract shall upon expiration of said ten (10) calendar days cease and terminate.
In the event of any such termination, City shall immediately serve notice thereof upon the Surety
and Contractor; and the Surety shall have the right to take over and perform the Contract,
provided, however, that if the Surety does not commence performance thereof within thirty (30)
days from the date of the mailing to such Surety of notice of termination, City may take over the
work and prosecute the same to completion by Contract, or otherwise, for the account and at the
expense of Contractor, and his Surety shall be liable to City for any excess cost occasioned City
thereby, as hereinafter set forth.
In the event City completes the work, or causes the work to be completed, as aforesaid,
no payment of any sum shall be made to Contractor until the work is complete. The cost of
completing the work, including but not limited to, extra contract costs, the costs of City forces, extra
costs of administration and management incurred by City, either direct or indirect, shall be
deducted from any sum then due, or which becomes due, to Contractor from City. If there is no
sum sufficient to pay the difference between sums due to Contractor and the cost of completing the
work, and there is a sum remaining due to Contractor after City deducts the aforementioned costs
of completing the work, then City shall thereupon pay such sum to Contractor and his Surety.
No act by City before the work is finally accepted, including but not limited to, exercise of
other rights under the Contract, actions at law or in equity, extensions of time, payments, claims of
liquidated damages, occupation or acceptance of any part of the work, waiver of any prior breach
of the Contract or failure to take action pursuant to this section upon the happening of any prior
default or breach by Contractor shall be construed to be a waiver, or to estop, City from acting
pursuant to this paragraph upon any subsequent event, occurrence or failure by Contractor to fulfill
the terms and conditions of the Contract. The rights of City pursuant to this paragraph are
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cumulative and in addition to all other rights of City pursuant to this Agreement and at law or in
equity.
1.32 RESOLUTION OF CONSTRUCTION CLAIMS.
1. For any claim of $375,000 or less which arises between the Contractor and the City,
the following procedure shall apply:
(a) The claim shall be in writing and include the documents necessary to substantiate
the claim. Claims must be filed on or before the date of final payment. Nothing in
this subdivision is intended to extend the time limit or supersede notice
requirements otherwise provided by contract for the filing of claims.
(b) (1) For claims of less than $50,000 the City shall respond in writing to the
written claim within 45 days of receipt, or may request, in writing, within
30 days of receipt, any additional documentation supporting the claim or
relating to defenses for claims the City may have against the Contractor.
(2) If additional information is required, it shall be requested and provided
pursuant to the subdivision upon mutual agreement of the City and the
Contractor (hereafter "claimant").
(3) The City's written response to the claim, as further documented shall be
submitted to the claimant within 15 days after receipt of the further
documentation or within a period of time no greater than that taken by the
claimant in producing additional information, whichever is greater.
(c) (1) For claims over $50,000 and less than or equal to $375,000 the City shall
respond in writing to all written claims within 60 days of receipt, or may
request, in writing, within 30 days of receipt, any additional
documentation supporting the claim or relating to defenses of claims the
City may have against the claimant.
(2) If additional information is thereafter required, it shall be requested and
provided pursuant to the subdivision upon mutual agreement of the City
and the claimant.
(3) The City's written response to the claim, as further documented, shall be
submitted to the claimant within 30 days after receipt of the further
documentation, or within a period of time no greater than that taken by
the claimant in producing additional information or requested
documentation, which is greater.
(d) If the claimant disputes the City's written response, or the City fails to respond
within the time described, the claimant may so notify the City in writing, either
within 15 days of receipt of the City's response or within 15 days of the City's
failure to respond within the time prescribed, respectively, and demand an
informal conference to meet and confer for settlement of the issues in dispute.
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Upon a demand, the City shall schedule a meet and confer conference within 30
days for settlement of a dispute.
(e) If following the meet and confer conference the claim or any portion remains in
dispute, the claimants may file a claim pursuant to Chapter 1 (commencing with
Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division
3.6 of Title I of the Government Code. For purposes of those provisions, the
running of the period of time within which a claim must be filed shall be tolled from
the time the claimant submits his or her written claim pursuant to subdivision (a)
until the time the claim is denied, including any period of time utilized by the meet
and confer conference.
2. For any civil action filed to resolve a claim of $375,000 or less which arises
between Contractor "claimant") and City, the following procedures are
established:
(a) Within 60 days, but no earlier than 30 days, following the filing of responsive
pleadings, the court shall submit the matter to non-binding mediation unless
waived by mutual stipulation of both parties. Mediation process shall provide for
the selection within 15 days by both parties of a disinterested third person as
mediator, shall be commenced within 30 days of the submittal, and shall be
concluded within 15 days from the commencement of the mediation unless a time
requirement is extended upon a good cause showing to the court.
(b) (1) If the matter remains in dispute, the case shall be submitted to judicial
arbitration. The Civil Discovery Act of 1986 shall apply to any proceeding
brought under this subdivision consistent with the rules pertaining to
judicial arbitration.
(2) Arbitrators shall, when possible, be experienced in construction law, and
any party appealing an arbitration award who does not obtain a more
favorable judgment shall, in addition to payment of costs and fees, also
pay the attorneys fees on appeal of the other party.
(3) The City shall pay interest at the legal rate on any arbitration award or
judgment. The interest shall begin to accrue on the date the suit is filed
in a court of law.
3. The procedures set forth above shall have no effect on the City's obligation to pay
money as to any portion of the claim which is undisputed except as otherwise provided in the
contract.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the date set
forth opposite their names.
Date:
Date:
ATTEST:
City Clerk
By
CONTRACTOR:
Title
CITY OF DUBLIN,
A Municipal Corporation:
By
City Manager
ORIGINAL APPROVED AS TO FORM:
City Attorney
Page 11 of 11 of the Agreement