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HomeMy WebLinkAbout4.10 EmeraldGlenPkPhIII CITY CLERK File # D[G;][Q][(i]-raJrQL AGENDA STATEMENT CITY COUNCIL MEETING DATE: March 15,2005 SUBJECT: Emerald Glen Park Phase III - Consultant Services for Construction Management Report Prepared by Rosemary Alex, Park< and Facilities Development Coordinator ATTACHMENTS: vi RECOMMENDATION- FINANCIAL STATEM~;: 1) Consultant Services Agreement I) Approve and authorize Mayor to execute Agreement The proposed fee for services under the Agreement is $99,952. Sufficient funds arc available in the project budget. DESCRIPTION: In January 2005, Staff solicited a Request for Proposal from twelve construction management fi1111S. At the conclusion of the proposal time, the City had received proposals ¡¡-om CMG8, RGM and Associates, Don Todd Associates, Inc. and the Zahn Group. Upon review of the proposals, Staff interviewed the candidates that provided the qualifications most suited to oversee the construction of Emerald Glen Park. As a result, Don Todd Associates had demonstrated in their proposal and interview the experience necessary for the project. The scope of work for professional services include attend an project meetings, coordinate the work of general contractor, maintain an project documents, and review submittals, change orders and requests for inf01111ation. The proposed costs are estimates based on the personnel and number of hours per task. The not-to-cxceed amount for the services is $99,952. The complete detail of the professional services is Exhibit A to the attached Consultant Services Agreement (Attachment I). RECOMMENDATION: Consultant Services Agreement agreement (Attachment I). It is the recommendation of Staff that the City Council approve the in the final f01111 attached and authorize the Mayor to execute the ~-~~~------------------------------------~------------------------~~------------------------~-------------~~- COPIES TO: Don Todd Associates ITEM NO. 4.10 G:\COUNCILlAgenda Slatemcnts\2005\3-15 Emelald Gle" III CM.doc ICß\ tI IVD CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND DON TODD ASSOCIATES, INCORPORATED THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Don Todd Associates, Incorporated ("Consultant") as of March 15, 2005. Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services desert bed in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A. the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shali begin on the date first noted above and shall end on January 1, 2006, the date of completion specified in Exhibit A. and Consultant shali complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 1.2 Standard of Performance. Consultant shall periorm ali services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first-class manner and shali conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 AssiQnment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time, Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of periormance provided in Section 1.1 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed ninety-nine thousand nine hundred and fifty-two doliars ($99.952), notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shali be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shali submit ali invoices to City in the manner specified herein. Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15, 2005 Page 1 of 13 3 ~ls-ö5 4--,10 At·-b.<::.h~+ 21}-0 Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information: · Sertal identifications of progress bills; i.e., Progress Bill No.1 for the first invoice, etc.; · The beginning and ending dates of the billing period; · A Task Summary containing the ortginal contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; · At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief descrtption of the work, and each reimbursable expense; · The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A; · The Consultant's signature. 2.2 Monthlv Pavment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within sixty (60) days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactortly performed. 2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15, 2005 Page 2 of 13 ?'Q2-D In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prtor to the submission of such an invoice by a properly executed change order or amendment. For change orders, the City Manager is authorized to approve an unlimited number of dollar changes to the contract price so long as the net affect of all change orders do not exceed $25,000. 2.5 Hourlv Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the following fee schedule: 2.6 Reimbursable Expenses. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactortly completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein. Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall fumish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity. and time of fumishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense. including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure 'occurrence coverage" insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the City. Consultant shall maintain the Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15, 2005 Page 3 of 13 .,..~ ~D insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consuitant's bid. Consultant shaii not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City Vertfication of the required insurance shaii be submitted and made part of this Agreement prior to execution. 4.1 Workers' ComDensation. Consultant shaii, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shaii be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self·insurance complies fuiiy with the provisions of the California Labor Code. Determination of whether a self·insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive aii rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. An endorsement shaii state that coverage shaii not be canceled except after thirty (30) days' prior wrttten notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.2 Commercial General and Automobile Liabilitv Insurance. 4.2.1 General reauirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separateiy to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shaii include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non- owned automobiles. 4.2.2 Minimum scope of coveraae. Commercial general coverage shaii be at least as broad as insurance Services Office Commercial General Liability occurrence form CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1173) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covertng Broad Form Comprehensive General Liability. Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15,2005 Page 4 of 13 Gao J.D Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9 ("any auto"). No endorsement shall be attached limiting the coverage. 4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no speciaJlimitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall not affect coverage provided to CITY and its officers, employees, agents, and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the penod covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not Jess than ONE MilLION DOLLARS ($1,000,000) covenng the licensed professionals' errors and omissions. 4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim. 4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30) Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15, 2005 Page 5 of 13 f..p "b '),V days' prior written notice by certified mail, return receipt requested, has been given to the City. 4.3.3 The policy must contain a cross liability or severability of interest clause. 4.3.4 The following provisions shall apply if the professional liability coverages are written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Reauirements. 4.4.1 AcceDtabilitv of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of coveratle. Prior to beginning any work under this Agreement, Consultant shall furnish City with certificates of insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance policy are to be signed by a person authonzed by that insurer to bind coverage on its behalf, The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.4.4 Variation. The City may approve a vanation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits, and forms of Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15,2005 Page 6 of 13 Î ~ ?D such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.4.5 Deductibles and Self·lnsured Retentions. Consultant shall disclose to and obtain the approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement. only upon the prior express written authonzation of Contract Administrator, Consultant may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Notice of Reduction in Coveraae. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies, In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: · Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; . Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compiiance with the requirements hereof; and/or . Terminate this Agreement. Section 5, INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15, 2005 Page 7 of 13 tg ~ ,:0 of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Consultant to indemnify and hold harmiess includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shail apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. 6.1 6.2 Section 7. 7.1 STATUS OF CONSULTANT. Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contnbution to be paid by City for empioyer contributions and/or employee contributions for PERS benefits. Consultant No Aaent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authonty, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. LEGAL REQUIREMENTS. GoverninQ Law. The laws of the State of California shall govern this Agreement. March 15,2005 Page 8 of 13 Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated q 'b"')1) 7.2 Comollance with AODlicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 other Governmental Reaulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits, Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Oooortunitv. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, iAcluding but not limited to the satisfaction of any positive obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15, 2005 Page 9 of 13 l°üb¿'D written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assianment and Subcontractina. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior wntten approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach bv Consultant. If Consultant matenally breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15, 2005 Page 10 of 13 llÞQ'j,v Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessanly suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attornevs' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that tnal of such action shall be vested exclusively in the state courts of California in the County of Alamedaor in the United States Distnct Court for the Northern District of California. 10.3 Severabilitv. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15, 2005 Page 11 of 13 t2Jb'w 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assians. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Govemment Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate Califomia Government Code Sections 1090 at saq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written matertals. 10.9 Contract Administration. This Agreement shall be administered by the Parks and Facility Development Coordinator ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Don Todd Associates, Inc. A TTN: Roosevelt Hattin, P.E. 1000 Broadway, Suite 360 Oakland, CA 94607 Consulting Services Agreement between City of Dublin and Don Todd Associates, Incorporated March 15, 2005 Page 12 of 13 \=3avv Any written notice to City shall be sent to: City of Dublin, Parks and Community Services A TTN: Rosemary Alex 100 Civic Plaza Dublin, CA 94568 10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Seal and Signature of Registered Professional with report/design responsibility. 10.12 Intearation. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A. represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. CITY OF CONSULTANT Janet Lockhart, Mayor Roosevelt Hattin, P.E. Attest: Kay Keck, City Clerk Approved as to Form: Elizabeth H. Silver, City Attorney Consulting Services Agreement between City of Dublin and Don Todd Associates, incorporated March 15,2005 Page 13 of 13 1'-f~W EXHIBIT A SCOPE OF SERVICES DTA will provide Construction Management Services to the City of Dublin throughout all phases of construction of the Emerald Glen Park Phase III. Our approach is based on construction management principles we have successfully used on Emerald Glen for infrastructure improvements for the Alameda County Surplus Property Authortty. We will not attempt to come in and take over the program from the City; rather our objective will be to act as an extension of and augmentation to the City's Project Manager and other staff. Our tasks for Emerald Glen Park Phase III will be: A. Pre-Construction Phase Services: · Assist the City in setting up chart of accounts for City's cost accounting. The project accounting and cost reporting system will provide job budgets, contract commitments, change orders, and previous, current and to date billings, including any retention withheld. · Conduct project pre-construction meeting. B. Construction Phase Services: · Conduct daily visits to the construction site. Record and report field conditions, observations, and progress of work. Monitor construction progress based on general contractors' project schedule, which shall be updated as needed by general contractor. Oversee the general contractor and subcontractors' scope of work. · Observe construction in place and report any deviations that do not comply with the construction documents. Review construction progress with the contractor, observe completed work and confirm that on site materials are properly stored, and evaluate the percentage complete of each construction activity as indicated in the construction schedule. Coordinate inspections at the approprtate time and assist with providing any information to the City Departments as required. Coordinate with the City's Inspectors performing code compliance and permit sign off inspections, and coordinate and manage the City's consultants for special inspections and testing (i.e. concrete, steel, anchors, soils compaction, etc.), keeping logs and reports of all work. · Conduct weekly job-site progress coordination meetings with the City's representatives, design consultant, contractors, and other parties, Prepare agendas and project meeting minutes. Work closely with City Project Manager, City staff, design consultant, general contractor and subcontractors. Review and furnish recommendations with respect to contract correspondence and directives to be issued to secure the interests of the City. · Coordinate efforts with design consultant, contractors, and provide liaison to the City's Project Manager. Provide weekly progress report to the City's Project Manager. The weekly progress Consulting Services Agreement between City of Dublin and Don Todd Associates Exhibit A March 15, 2005 Page 1 of 6 51162-0 report will contain weekly updates for the project using the following organized sections: Introduction, Site Visit Observations, Construction Coordination Meetings, Status of Change Orders and Bids, Contractor's Invoices, and Other Issues. Bids and Change Order logs will be attached as well as the project accounting and cost reporting system. This report will be provided electronically to the City's Project Manager via e-mail and it can be pnnted on as needed basis in order to reduce paper consumption. · Provide on-site coordination to assure that the project meets the plans and specifications and stays on schedule. Review and evaluate the contractor's baseline schedule line-by-line for its reasonableness, conformance, comprehensiveness and attainability and make recommendations for acceptance or changes. Dunng the weekly meetings with the contractor, review contractor's short-term progress and "2-week look-ahead" schedules and the impacts of changes. If needed, analyze schedule "work arounds" to bring the project back on schedule when adversely impacted by changes and delays. Identify critical areas to confirm that parties, flagged on the cntical path, are made aware of their responsibility to meet important schedule dates. Continually update City of all scheduling and cost implications. · Establish and implement procedures and develop a computerized system for logging, filing and tracking of all project submittals, RFls, change order requests, approved change orders, payment requests and project accounting and cost reporting system. · Develop detailed independent Engineer's cost estimates for each change order cost proposal for use in negotiations with the contractor. Provide quantity take-off and develop cost estimates for the on-site and off-site infrastructure work: civil, architectural, structural, mechanical, electrical, underground utilities, landscaping, etc. Cost estimates will be prepared, as required, in System or CSI format. · Review and recommend approval of contractor's monthly payment requests by verifying work in place against the schedule of values provided by the contractor at the beginning of the project. Coordinate and expedite functions connected with the contractor's obligation to provide as-built documents on a monthly basis along with the pay applications. · Coordinate and schedule training sessions for the City maintenance and operational personnel. · Assist in prepanng and monitoring punch list items. Review all inspection reports to assure there are no outstanding issues of noncompliance. Coordinate all final sign-offs to venfy correction of non-compliant items and that all contract conditions are satisfied. Make recommendations for final acceptance and payment. Post-Construction Phase Services: · Develop Project Closeout procedures including verification that all certifications of equipment installation, warranty forms, performance and maintenance bonds, operation maintenance manuals, as-built documents, lien releases and waivers, acceptances of final payment, release Consulting Services Agreement between City of Dublin and Don Todd Associates Exhibit A March 15, 2005 Page 2 of 6 1~I1b¿?D of retention and other closeout report and documentation, are properly executed, tendered and included in the project file. A final Project Report and all project files including completed as- built drawings will be provided. c. Estimated Level of Effort The estimated level of effort by personnel for each task, and corresponding hours is detailed in the fee proposal included in the Construction Management Services (Schedule of Rates & Fees) as follows. Consulting Services Agreement between City of Dublin and Don Todd Associates Exhibit A March 15, 2005 Page 3 of 6 \1Vb2D Don Todd Associates, Inc. CONSTRUCTION MA.NA.GEMENT SERVICES ( SCHEDULE OF RATES & FEES) For Citv of Dublin Emerald Glen Park Phase III ClasstficatilJl1 ~ Monti.. HrsIMonlh (Av~.) Total ~ A.monnt Total Fee A, Pre Construction Project Executive Construction Manager $ $ 180 146 I 8 1 8 $ $ 180 1,168 Total ~ Labor $ 1,348 B. Construction TotaJ - Labor $ 180 6 1 6 $ 1,080 $ 146 6 96 576 $ 84,096 $ 130 6 8 48 $ 6,240 $ 91,416 ProJcct ~tcutive ConstI'Uction Manage:r Estirnat.or/Scheduler C. Post Construction proj ect Executive;:: COQf:troction Manager $ $ 180 146 1 48 1 48 $ $ 180 7,008 T oral· Labor $ 7,IR8 n.eÎmbu'r'sable - AllDwance!: .. Site Offic~ Rtnlal!Setup $ 2,000 Mo 0 h. Office Furnishing $ SOO Mo 0 c. Office CleanìngITrash Removal $ 400 Mo 0 d. Comp\lttrlPrÎnter/Sofuvare $ 300 Mo 0 c. Electronic Data Mgrot System S; ]50 Mo 0 f. Cclluhu: Telephooe $ 100 Mo 0 g. Office Telcphon~ - Voice $ 200 Mo 0 h. Office T~lepholle - Fax. $ 200 Mo 0 I. Office Telephone ~ Dala $ 150 Mo 0 j Copier $ lUU Mo 0 k. M.iljnglFedExlSramp;/elc. $ 200 Mo 0 1. FilmJlkvdoping $ 50 Mo 0 m. Local Travel (Oaklond) $ 160 Mo 0 $ $ $ $ $ $ $ $ $ $ $ $ $ Total- Reimbursable Co:::t (Allowance) $ Total ~ Fee Proposal $ 99,952 !\(lt~&; 1, Fees are applicable to !>ervices up to 90 calendar days, 2. Contract t.1me is lhrOllgh January I, 2006. 3, Our hourly and daily fee are $146 and $J ,168 respectively, Cons\.Ilting'ServicesAgreement between City of Dublin and Don Todd Associates Exhibit A March 15, 2005 Page 4 of 6 1'6~¿"D II'I,l.NPOWER LO,l.PING CHART Emer.ld Glen Park phli8f IU 2004 2005 2006 PHASEISTAFF JIJ A'sloiNiD J ! F j M ¡ A TOTAL I I I , I , I I I i I 1111' I I ; I ____I I , H.'. 1 Man!h-'" I'll II ¡ II I , I , I I ! I I I , , , , I 11 I I III II! ¡ i ! PROJECT eXECUTlVE , I I , I , I I I ¡ i , I ~ , , II II I II ' I CONST~UC.TION MA.NAGE~ I , I i s , i , , I , , I [ I i I¡II I , , I ; I I , , J I I , I , I I ill! [I ¡ I I I i I I I 1 I I I I I I I I I ! I1IIII i II ! I ; I --:"" 'MO',h. -., I I I I , I I , I I I I i I I i , I ; PROJ~CT EXEClffiVE ¡ I I 11 11 1: 1 I 1 1 I ' I I: i III III I : I I i I I ' I I , I I I I I ; I: I I' I CQNSTRUCTION MANAGER , ! i1!lj i& I llii j !III I ¡¡o [ill! ¡ I ' 57' I , , , I[ : 'I I I I ; , I I I I I I i I I 1'1111 I I , I I I ~i~¡~!giiIßi ¡ I I I , " ESIIMATORlSCH50UL,R I , , J I! ]! i I I I I , I I I I , I i , I I I I I I I I I ! I 1111' i I I I I , I , I I I I I I I I ¡ : I , III1 I ¡ I ! ~ i I I I i I I ! II .-.: M,,:h-' !. ¡ I II ¡ \ , ' I I , I ; I I I Iii i 11.11 i 1IIII PROJ,CHXECUIIV5 I , I I , I ¡ I ; I , I , I I I I I ; I'; I I I I I i I I ' I I ,I I "! I II I , I 1 i I ¡4B ! IIIII I " CONSTRUCTION MANAGER I , I I , I I ; I ¡' I I I-I I I I!! IIII I , I I , ; i I i I I I i I ! ; I I ¡ II' Iii I I i I , I I ; I I I:; I' , , t . I ¡ II "I I, I , : 1 1 ! 1 . ! I 1 ¡ ! ¡ I I ! ] 1 1 I! I l'f<1i¡::otStllrt IS-Mar....(lS EMERAI,.,D GlE:N PARK PHASE III rrujec.~Fi \i~h 28-0c.1:-U~ Dublin, CallfDrnla Datil Oa~ 16-F~b-{I~ Propo~5tltd Construction M.l'lagement Schlllldl,ill!t PlotD~œ lo-Fcb-05 Consulting Services Agreement between City of Dublin and Don Todd Associates Exhibit A March 15, 2005 Page 5 of 6 Iq"Ö -¿,D DON TODD ASSOCIATES, INC. PROJECT & CONSTRUCTION MANAGEMENT SERVICES March 3, 2005 Ms. Rosemary Alex, Parks and Facilities Development Coordinator City of Dublin Parks & Community Services Department - 1st F100r 100 Civic Plaza Dublin, CA 94568 Re: Construction Management Services Emerald Glen Park - Phase ill On beha1f of Don Todd Associates, Inc., I want to express our appreciation for being selected to provide you with Construction Management Services for Emerald Glen Park Phase m. .As requested, our cost proposal and fees shall be valid for the construction duration of 190 calendar days. Should construction extends beyond the anticipated construction duration of the 190 calendar days, we shall glad1y extend our CM services at the same currently proposed weekly manpower rates as follows: E1ia Majdalani, Construction Manager: 24 mh/week @ $146/mh Estimator/Scheduler: 2 mh/week @ $130/mh As D"fA's Principal-In-Charge, my responsibility will be to make sure that you have all of the resources needed and to assure that our services are of high quality and meet your needs. To that end, I will be in contact on a reguJar basis, and of course, avaiJable as needed to address any major issues shouJd they arise. The construction of Phase III at Emerald Glen Park is very cxcitjng and again, we thank you for considering us to be your construction management finn. . Sincerely, "R~" ~ Roosevelt Hattin, P .E. Executive Vice President ~ \ Consulting Services Agreement between - \~ity of Dublin and Don Todd Associates Exhibit A March 15,2005 Page 6 of 6 EXHIBIT B COMPENSATION SCHEDULE DON TODD ASSOCiATES, INC. PROJECT &. CONSTRUCTION MANAGEM!::NT SERVICUi March 8, 2005 Rosemary Alex, Parks and Facilities Development Coordinator City of Dublin - Parks & Community Services Department. 1" Floor 100 Civic Plaza Dublin, CA94568 Dear Ms. Alex: Below is DTA'$ Hourly Rate Schedule: Job Classification Managing Prlncjpal Project Controls Manager Preconstruction Services Manager Design Manager Program Manager Sr. Project Manager Project Manager Construction Manager Scheduler Estimator Partnering Facilitator Information Technician/MIS Graphics Specialist Document Control Manager Document Control Administration Assistant Billing Rate $180 $156 $170 $113 $156 $135 $136 $146 $130 $130 $123 $107 $83 $85 $65 $64 ~"tf-D Notes: 1. All hourly retes quoted herein are inclusive of overhead costs, edministrative and general fees. 2. Rates quoted ere valid through January 1, 2006, At your request, attached is tho Revised Fee Proposal and Schedule. If you have questions or need further infotmation, plcase do not hesitate to give m.o a call at (510) 215-1007 exL 106. Sincerely, DON TODD ASSOCIATES, INe. 'K~'~ Roosevelt Battin, P.E. Execu6ve Vice President Consulting Services Agreement between City of Dublin and Don Todd Associates--Exhibit B March 15, 2005 Page 1 of 1