03-047 PCICGS' . ~~ ~
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CUPEI~TINO
AGREE'~MENT
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CITY OF CIJPERTINO ~~ ~I -'
10300 Torre Avenue b ~ ' `~
Cupertino, ~~A 95014
(408) 777-3200
BY THIS AGREEMENT, made and entered into on the 25th
by and between the CITY OF CUPERTINO (Hereinafter referred to a.s CITY) and
Name (1) PCI _ (2)
Address 51 Bonaventura Drive City San Jose, CA Zip 95134 Phone 0408) 232-4900
(Hereinafter referred as CONTRACTOR), in consideration of their mutual covenants, the parties hereto agree as follows:
ONTRACTOR shall provide or furnish the following specified services and/or materials: Labor & material to install
a _ ~ deck per PCI proposal dated April 14, 2003 - ~'tv~oG r ~Q•rr ~` ~ Orr/
EXHIBITS: The following attach d exhiglts hereby are made part of this Agree ent: Proposal dated April 14, 2003
aid ru,a~ %~lec~C d~u ~v'~'rr olat~t:gl ~~/r/ ~03
TERMS: The services and/or materials furnished under ffiYs Agreement shall commence on ~y 5, 2003
and shall be completed before May 17 , 2003
COMPENSATION: For the full performance of this Agreement, CITY shall pay CONTRACTOR: :~8, 999.00
California Labor Code, Section 1771 requires the payment of prevailing wages to all workers employed on a Public Works contract in
excess of $1,000.00.
GENERAL TERMS AND CONDITIONS
Hold Harmless: Contractor agrees to save and hold harmless the City, its officers, agents and employees from any and all damage and
liability, including all costs of defending any claim, caused by or arising out of the performance of this Agreement. City shall not
be liable for acts of Contractor in performing services described herein.
-' due to negligence, errors and omissions
Insurance: Should the City require evidence of insurability, Contract~~r shall file with City a Certificate of Insurance before commencing
any services under this Agreement. Said Certificate shall be subject to the approval of Ciry's Director of Administrative Services.
Non-Discrimination: No discrimination shall be made in the employment of persons under this Agreement because of the race, color,
national origin, ancestry, religion or sex of such person.
Interest of Contractor: It is understood and agreed that this Agreement is not a contract of employment in the sense that the
relationship of master and servant exists between City and undersigned. At all times, Contractor shall be deemed to be an independent
contractor and Contractor is not authorized to bind the City to any contracts or other obligations in executing this agreement. Contractor
certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of City.
Changes: This Agreement shall not be assigned or transferred without the written consent of the City. No changes or variations of any
kind are authorized without the written consent of the City.
CONTRACT CO-ORDINATOR and representative for CITY shall be:
NAME Te
Greene Public Works
This Agreement shall become eff
Agreement the day and year first
CONTRACTOR:
By
Title Gary Gonzalez,
Soc. Sec. # - 716
day of April
20 03 ,
DEPARTMENT
upon its execution by I:,ITY, in witness thereof, the parties have executed this
i above.
~~tracting, Inc. ~%ITY OF CUPERTINO:
~ Ely /
er l'itle euior Architect
APPROVALS ~ _, ~R ~ ~~ E:XPENDITURE DISTRIBUTION
DEP ENT D T ACCOUNT NUMBER AMOUNT
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White: City Clerk /I v Green: Finance v Yellow: Contractor ~ Pink:f Receiving Gold: Department
//~ 51 Bonaventura Drive PROPOSAL
5' San Jose, CA 95134
t~f.::RFC.)RMr\NC;E 408/232-4900 INTERIOR DIVISION
C.;(.)N'TI't~1C; i'llv(; INt;
Page 1 of 5
To Customer: Nova Partners Inc.
307 Town & Country Village
Palo Alto, Ca. 94301-2362
Attn Chris Thompson
Date:
Page One of Five
Apri114, 2003
Architect/Engineer: Seibert
Job Name New deck for trailers Location Cupertino Sports Club
Performance Contracting, Inc. (hereinafter designated as "CONTRACTOR") proposes to furnish all materials and labor required for the
application of the following (hereinafter designated as the 'Work") for the amount stated below:
Thank you for the opportunity to quote this project. Our price is based on clarifications stated in
this workscope notice and is conditional upon acceptance of mutually agreed-upon contract terms
and conditions. Scope is limited to the following.
1. Provide labor and material to install :~ new 4' wide X 1041/f long deck.
• Deck includes two (2) ramps with handrail for ADA.
• Deck to have 2X6 "tech wooti" for durability.
• Hand rail will be made from "tech wood"
• Handrail to have mid-rails out of "tech wood".
• Handrail will close off between trailers.
Price $ 8,999.00
2. Provide labor to remove above prof art and haul away. _ /l/OT ,4GC ~ P T ~.e~
Price $ 3,386.00
In the event CONTRACTOR's price is inducted within your bid, then CONTRACTOR's bicl will be deemed to have been accepted.
This proposal is subject to change and will be withdrawn i/not accepted within 30 days of the above date: it is subject to and indudes all lertns and conditions described herein
land such other terms as may be mutually agreed upon).
See pricing above
ContradPriceS PERFORMANCE CONTRACTING, INC.
Acceptance Date:
Dan Seibert -Estimator
By: Title:
Customer Name: B
Title: A~etoval Date:
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51 Bonaventura Drive
San Jose, CA 95134
408/232-4900
PROPOSAL
Page 2 of 5
Exclusions and clarifications:
1. G.C. to provide a cutting area outside the building.
2. All materials are based on using PCPs option of manufacturers as equals to specified
products.
3. All work to be done on straight time, sequentially and in areas clear of obstacles to labor.
4. All labor will be prevailing wage.
5. Protection of work is to pass to the general contractor after each installation phase.
6. This quote does riot include any costs work that may be caused by other trades damaging or
removing our work in order to perform their work.
7. Mechanical, electrical, sprinkler, DFH, interstitial, and painting by others.
8. Retention to be released upon completion of the PCPs portion of the work.
9. Permits, engineering talc., and shop drawings by others.
ADDERS:
NONE
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Standard Terms and Conditions
The Work: CONTRACTOR will supply and pertorm only that work specifically described
herein (the "Work"), notwithstanding anything to the contrary contained in any bid documents
presented by the Customer (lhe "Bid Documents"). It is specifically understood that the
scope of work described herein shall supersede anything to the contrary provided in the Bid
Documents. Any work to be done beyond that described herein shall require that a change
order be executed. Customer shall notify CONTRACTOR if CONTRACTOR's work is to be
stopped upon reaching any aggregate contract sum.
Schedule: CONTRACTOR will supply and pertorm the Work in accordance with the
schedule (the "Schedule") described herein or in the absence thereof, in accordance with the
Bid Documents. CONTRACTOR's obligation hereunder is based upon the Schedule, both as
to duration and sequence. In the event of any significant change in the Schedule, the
contrail price and the Schedule shall be equitably adjusted. In the event CONTRACTOR is
delayed in its Work or is otherwise required to accelerate or resequence its Work for reasons
other than the fault of CONTRACTOR or others under CONTRACTOR's control, then
CONTRACTOR shall be entitled to additional compensation.
Work Week: Customer will cooperate with CONTRACTOR in scheduling all Work,
including disconnections, reconnections, intertuption of services and utilities, and similar
matters. In the event that Customer requires CONTRACTOR to work outside of normal
daytime business hours, CONTRACTOR shall be entitled to additional compensation for
such overtime.
Guarantee: CONTRACTOR warants and guarantees that its Work will be performed in
compliance with all Federal, State and/or Local regulations and, at the time of Customer's
acceptance inspection, will meet the specifications in the Contract Documents specifically
relating to CONTRACTOR'S Work. CONTRACTOR'S obligation to repair or replace
defective Work will expire one year from the completion of CONTRACTOR'S Wark. THIS
WARRANTY IS IN LIEU OF ANY WARRANTIES PROVIDED IN THE 81D DOCUMENTS
AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Insurance: CONTRACTOR shall supply workers compensation insurance in the form and
amount required by law. CONTRACTOR shall supply general liability insurance, evidenced
by its standard certificate of insurance, the price of which shall be incuded in the bid price
unless otherwise specified herein.
Protection of Work: CONTRACTOR shall be responsible for protecting the Work, or
portions thereof, during the time the Work or portions of it are under its control; provided,
however, that during such time, CONTRACTOR shall not be responsible for loss or damage
caused by others, nor for any damages whatsoever while CONTRACTOR is not on site.
Storage and Faeilitles: Customer will provide at its expense sufficient storage space to
CONTRACTOR, which is fully protective of materials and equipment fumished for the Work
at the place of pertortnance of the Work. Customer will provide at its expense all light, heat,
power and water which is required by CONTRACTOR for perormance of the Work in the
custom and practice of CONTRACTOR'S trade.
Taxes: Customer will pay for any and all taxes which are now or may be imposed on the
Work by any Federal, State or Local taxing authority, law, ordinance, rule or regulation,
unless otherwise specified herein.
Bonds: Upon the request and at the expense of Customer, CONTRACTOR will famish
performance and payment bonds written by a corporate surety. The cost of any such bonds
is not included in the bid price and shall be paid for by Customer.
Indamn(ty: CONTRACTOR will indemnify and hold harmless Customer from all or such
portion of such loss or damage to persons or property to the extent arising directly from
CONTRACTOR'S pertormance of the Work and which is caused solely by the willful
misconduct or negligent acts of CONTRACTOR, its employees, or anyone under its control.
Customer will indemnify and hold harmless CONTRACTOR from all or such portion of such
loss or damage to persons or property to the extent arising directly from the willful
misconduct or negligent ads of Customer, its employees or anyone under its control,
including other contractors.
Payments: For Work commenced and completed in any one calendar month, Customer
will pay the full wntrad price in full upon the completion and acceptance of the Work.
Otherwise, all progress payments for the value of the Work completed plus the amount of
materials and equipment suitably stored on or off site, and final payment, shall be paid by
the Customer to CONTRACTOR within thirty (30) days after the Customers receipt of
CONTRACTOR'S payment application therefor.
Inspection and Acceptance: CONTRACTOR'S Work shall be considered complete
when CONTRACTOR notifies Customer that the Work has been completed in accordance
with the specifications. The Customer's inspection of the Work shall take place within
twenty-four (24) hours from receipt of notice from CONTRACTOR. Customers
acknowledgement on the Acceptance Form shall constitute acceptance of the Work.
Retention: For Work completed, ninety-five percent (95°h) of the wntrail value of Work
performed during each payment period will be payable as provided above up to a maximum
retention of $50,000.00. In any event, the full balance of the contrail price shall be payable
in full upon completion and acceptance of the Work.
Late Payments: All sums not paid to CONTRACTOR when due, whether progress
payment, final payment or retention, shall bear an interest rate of one and one•half percent
(1 h%) per month or the maximum legal rate permitted by law, whichever is less; and all
costs of collection, including a reasonable attorney's fee, shall be paid by Customer.
Changes: CONTRACTOR may only be ordered in writing by the Customer to make
changes in the Work within the general scope of the Work consisting of additions, deletions,
changes to the Schedule in duration or sequence, or other revisions, and the contrail price
and the Schedule shall be adjusted accordingly. Belore starting the changed Work,
CONTRACTOR will submit to the Customer a request far adjustment to the contrail price
and/or the Schedule. CONTRACTOR will not commence any such changed or revised
Work until receipt of a written change order from the Customer incorporating an adjustment
to the contras price and/or Schedule in accordance with the above.
Force Majeure: CONTRACTOR shall not be responsible for delays or defaults where
occasioned by any causes of any kind and extent beyond its control, including but not limited
to: delays caused by the Owner, Customer, other subcontractors, architect and/or engineers,
delays in transportation, shortages of raw materials, civil disorders, acts of the government,
either in its sovereign or contractual capacity, labor difficulties or shortages, vendor
allocations, freight embargoes, fires, floods, epidemics, quarantine restrictions, accidents,
unusually severe weather, and acts of God. CONTRACTOR shall be entitled to an equitable
adjustment in the Schedule and Contrail Sum for such delays as described above.
Customer Supplied Property: If the Work described herein requires Customer to
supply materials, equipment or other property, then Customer warrants that such items shall
be fit for the use for which they were intended. If such items do not conform,
CONTRACTOR shall notify Customer within a reasonable time after CONTRACTOR's
notice of the nonconformance and CONTRACTOR may request additional compensation by
change order.
CONTRACTOR Supplied Property: Whenever the Customer, its employees,
contractors and subcontractors (other than CONTRACTOR) use ladders, scaffolding, tools,
vehicles, equipment or property of any kind, either owned or rented by CONTRACTOR,
Customer shall indemnify and hold CONTRACTOR harmless from any and all claims,
demands, damages, causes of action and suits of whatsoever nature and kind, arising out of
or eonneded with the use of such, except when caused by the sale active negligence of
CONTRACTOR.
Differing Slte Conditions: If CONTRACTOR encounters conditions at the site differing
materially from those indicated in the Bid Documents, or unknown physical conditions at the
site of unusual nature differing materially from those ordinarily encountered by
CONTRACTOR's trade, then CONTRACTOR shall promptly notify the Customer, stop its
Work and await instructions from Customer. It such conditions cause a change in the cost
of, or the time required for, performance of any portion of the Work, an equitable price
adjustment shall be made and the Schedule modified accordingly.
Notices: Any notice or written claim required to be submitted to the Customer on account
of charges, extras, delays, acceleration, or otherwise, shall be fumished within a reasonable
time period, and in a manner to permit the Customer to satisfy the requirements of the
Contract, notwithstanding any shorter time period otherwise provided therein.
Liens: Nothing shall serve to void CONTRACTOR'S right to file a lien or claim on its behalf
in the event that any payment to CONTRACTOR is not timely made.
Damages: Notwithstanding anything to the contrary contained in the Bid Documents or
otherwise, CONTRACTOR shall not be liable for special, incidental or consequential
damages of any kind for any reason whatsoever.
Preparation of Work Areas: The Customer shall prepare all Work areas so as to be
acceptable far mobilization by CONTRACTOR. CONTRACTOR will not be called upon to
start Work until sufficient areas are ready to ensure continued Work until job completion.
CONTRACTOR shall not be responsible for damage to any property (a) which is to be
replaced by Customer, or (b) which is damaged as a result of removal by CONTRACTOR
prior to performance of the Work in order to perform Wark despite CONTRACTOR
exercising reasonable care to prevent damage.
Terminatlon and Suspension: If the Customer does not pay CONTRACTOR in a
timely manner within seven (7) days tram the time payment should be made as provided
herein (except where such nonpayment is due to defective Work by CONTRACTOR or other
material breach by CONTRACTOR), then CONTRACTOR may, without prejudice to any
other remedy it may have, upon two (2) additional days' written notice to the Customer, stop
its Work until payment of the amount owing has been received. In the event CONTRACTOR
resumes its Work, the Schedule shall be equitably adjusted, and CONTRACTOR shall incur
no liability for such termination. Further, the contract price shall, by appropriate adjustment,
be increased by the amount of CONTRACTOR'S reasonable costs of shutdown, delay and
startup. Further, if CONTRACTOR'S Work is terminated or suspended for the convenience
of the Customer or any other party, then CONTRACTOR shall be paid for all Work
performed to-date, for equipment and materials already ordered, and for CONTRACTOR'S
costs of early termination, or in the case of suspension, CONTRACTOR'S costs of
shutdown, delay and startup. Notwithstanding anything herein to the contrary,
CONTRACTOR shall not ba liable for any damage while CONTRACTOR is not on site.
Waiver. CONTRACTOR'S waiver of any term herein shall not be construed as a waiver of
such terms at any subsequent time.
Cooperation and Safety: CONTRACTOR'S Work shall be periortned in accordance with
all applicable requirements of the Environmental Protection Agency, OSHA and other
Federal, State and Local regulations. Customer will cooperate with CONTRACTOR in all
respells and take all necessary actions to enable CONTRACTOR to meet all such
requirements with respell to the Work and the Project. Customer will cooperate with
CONTRACTOR to assure that all areas where the Work is being pertormed are closed to
access by unauthorized persons. Customer shall provide adequate security, insuding
security personnel, to prevent unauthorized entry into CONTRACTOR'S Work areas. The
Customer will ensure that its employees, representatives, agents and tenants will abide by
all safety procedures applied by CONTRACTOR on the Projes. CONTRACTOR shall
provide for its Work all safety signs, direction signs and warning signs for the Projeil in
accordance with statutory requirements. All visitors to the Work areas shall be required to
comply with CONTRACTOR'S safety requirements. Customer agrees that CONTRACTOR'S
insurers' representatives shall have the right to inspect CONTRACTOR'S Work and Projeil
without hindrance.
Legal EHeet: This proposal offers to the Customer the terms and conditions upon which
CONTRACTOR will perform the Work described herein and is made without regard to any of
the provisions in the Bid Documents not expressly incorporated herein by reference or
otherwise agreed to in writing signed by CONTRACTOR. Acceptance of the proposal is
expressly limited to the terms stated herein. Additional or inconsistent terms of Customer's
form or other documents are objected to and rejected and shall be deemed a material
alteration thereof. Upon acceptance, this proposal will represent the entire agreement of the
parties with regard to perormance and payment for the Work. The proposal may be
changed or withdrawn at any time prior to acceptance by notice to the Customer and will be
deemed withdrawn if not accepted by the Customer within thirty (30) days from the date
hereof.
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San Jose. CA 95134
408/232-4900
PROPOSAL
Page 4 of 6
Contractual Clarifications
• CONTRACTOR'S price is based on clarifications stated in this proposal (and is conditional upon acceptance of
mutually agreed-upon contract terms and conditions). CONTRACTOR'S attached Standard .Terms and
Conditions, including CONTRACTOR'S Standard Insurance, will apply to this project.
• Protection of finished Work is excluded. CONTRACTOR'S Work must be approved and accepted on an area-
by-area basis prior to removal of scaffolding and other equipment necessary to perform the Work. Once
approval has been given and such equipment has been removed, and CONTRACTOR has left the area,
CONTRACTOR cannot be responsible for damage to its Work.
• Any damage to CONTRACTOR'S Work, which is not specifically caused by CONTRACTOR, will be
considered damage by other trades. CONTRACTOR will be compensated for any repairs of damage by others
via change order to the subcontract.
• This proposal is per existing plans and specifications. All necessary design, architectural and engineering
services, whether already performed or contemplated, shall be provided by others. This qualification overrides
any condition requiring CONTRACTOR to furnish such services. Any assistance given to the Owner's or
General Contractor's design professionals is furnished as an accommodation to the Owner and/oX General
Contractor, and such services do not make CONTRACTOR liable or responsible for any design Work. The
Owner's design professionals shall approve any required shop drawings. Shop drawings submitted by
CONTRACTOR do not constitute design, architectural or engineering services, and any shop drawings shall be
deemed to be approved by the appropriate design professionals working for the Owner and/or General
Contractor unless CONTRACTOR is promptly notified of needed modifications. Any contract awarded shall
specify that design, architectural and engineering services are the responsibility of others.
Commercial Clarifications:
• This proposal is based on a normal 40-hour week. No shift work or premium time has been included.
• CONTRACTOR will be reimbursed for material received and stored in warehouse or pre-stocked at jobsite.
• CONTRACTOR will provide equipment and other safety precautions for the protection of CONTRACTOR'S
installers only.
• Adequate area must be provided for the lay down, staging, and storage of CONTRACTOR'S materials.
• This proposal is based on the assumption that the following facilities and services will be provided by others:
Office Space, Telephone, Trash Clean-up, Trash Disposal, Potable Water, Weather Protected Material Storage,
and Parking.
• Man and material hoisting facilities of an adequate size, including operator and fuel, are to be provided at no
cost to CONTRACTOR.
Schedule:
• This proposal is predicated upon CONTRACTOR scope of Work scheduled to begin no later than May, 2003
and be completed no later than June, 2003. Some minor variation in this schedule has been anticipated;
however, any major change in this schedule will require reevaluation of the Work and this proposal.
• CONTRACTOR shall be afforded the opportunity to establish the activities and working time necessary to
perform and complete the Work included in this proposal.
• This proposal is predicated upon the Work being released to CONTRACTOR in an orderly and logical
sequence.
• In the event CONTRACTOR is unable to finish the Work on or about the scheduled completion date through no
fault of its own, CONTRACTOR shall be entitled to additional compensation for escalation of cost, lost
efficiency factor, or any other cost resulting from the delay, plus overhead and profit.
Chan~es•
• The cost of any extra Work, modifications, or additions required by jobsite conditions or directed by
CONTRACTOR shall be added to contract price plus 15% for markup and fee. CONTRACTOR shall be
entitled to payments for said extra Work, as directed by Customer, whether issued verbally or in writing. The
jobsite representative of Customer shall have authority to authorize extra Work, modifications, or additions as
outlined above, and to commit Customer to make payment therefor.
• No charges will be made to CONTRACTOR'S account for Work performed or material furnished by others,
without notifying CONTRACTOR and receiving its written approval before proceeding with such Work.
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F'ERFORNIANCE
Performance Contracting, Inc.
Standard Insurance
PROPOSAL
Page 5 of 5
The insurance in force for Performance Contracting, Inc. provides one of the most comprehensive
coverages available. Evidence of our coverage will be provided on the standard ACORD Certificate of
Insurance form. This standard, approved form is issued in compliance with requirements of the Insurance
Service Office of the United States and is a recognized document used to provide evidence of insurance
coverage in force. NO OTHER DOCUMENT IS APPROVED BY ISO FOR THIS PURPOSE, AND NO
OTHER FORM WILL BE PROVIDED.
PCI Standard Coverage
I. Commercial General Liability (1986 occurrence form), including broad form extensions and
contractual liability.
$2,000,000 General Aggregate
$1,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal/Advertising Injury
$1,000,000 Each Occurrence
$ 500,000 Fire Damage
$ 5,000 Medical Expense
II. Business Automobile Liability (provides coverage for all autos owned, non-owned, leased or hired.)
$1,000,000 Combined Single Limit
III. Workers Compensation (statutory)
$1,000,000 Employers Liability
IV. Umbrella (This policy provides additional coverage over General Liability, Automobile Liability, and
Employers Liability.)
The General Contractor and/or the Owner can be named as additional insureds on our policy and can be
named as primary, as long as the coverage is limited to the extent of PCPs contractual obligations.
ANY REQUIREMENTS ADDITIONAL TO THE ABOVE COVERAGE, INCLUDING BUT NOT LIMITED
TO THE FOLLOWING, ARE HEREBY EXCLUDED FROM THIS PROPOSAL:
• Waivers or exclusions of subrogation.
• Providing more than 30 days prior notice of cancellation.
• Any requirement for prior notice of expiration or changes in coverage.
• Project-specific aggregate limits.
• Any indemnification/hold harmless clauses which require that PCI hold other parties harmless for their
own acts.
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