HomeMy WebLinkAbout5.5 Amendment to Agreement with Anchor for On-Call Construction Management and Inspection Servicesr
DUBLIN
CALIFORNIA
STAFF REPORT
CITY COUNCIL
DATE: April 2, 2024
TO: Honorable Mayor and City Councilmembers
FROM: Linda Smith, City Manager
Agenda Item 5.5
SU B.ECT : Amendment to Agreement with Anchor for On -Call Construction
Management and Inspection Services
Prepared by: Julius Pickney, ManagementAnalystll
EXECUTIVE SUMMARY:
The City Council will consider approving an amendment to the agreement with Anchor for On -Call
Construction Management and Inspection Services.
STAFF RECOMMENDATION:
Adopt the Resolution Approving an Amendment to the Agreement with Anchor for On -Call
Construction Management and Inspection Services.
FINANCIAL IMPACT:
These services will be charged to the Public Works Department in accordance with the adopted
annual operating budget, Capital Improvement Program project budgets, and/or developer
deposit accounts.
DESCRIPTION:
The Public Works Department utilizes consultants on Capital Improvement Program (CIP)
projects, private development projects, and for on -call, as -needed services. Services provided
assist Staff in specific areas of technical and professional expertise. Consultants are solicited
through an open and competitive request for qualifications (RFQ) process.
On June 15, 2021, the City Council adopted Resolution No. 72 - 21 approving an agreement with
five companies for on -call construction management and inspection services. Resolution No. 72-
21 also named eight other companies as deemed qualified as part of the RFQ and the City reserved
the right to enter into on -call construction management and inspection services agreements with
the eight other companies as needed. Anchor (formerly AnchorCM) is one of the eight companies
deemed qualified as part of the RFQ solicitation.
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On December 1, 2023, the City Manager approved and executed an agreement with Anchor for On -
Call Construction Management and Inspection Services, with a not -to -exceed compensation
amount of $44,000 and an agreement term ending June 30, 2024. Services were to provide
professional and technical services to manage the construction and inspection for assigned CIP,
development, and permit projects.
Staff plans to utilize Anchor on additional project work, and accordingly, proposes amending the
current agreement with Anchor to extend the term through June 30, 2026, and increasing the not -
to -exceed compensation to $1,000,000.
STRATEGIC PLAN INITIATIVE:
None.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
The City Council Agenda was posted.
ATTACHMENTS:
1) Resolution Approving an Amendment to the Agreement with Anchor for On -Call Construction
Management and Inspection Services
2) Exhibit A to the Resolution - Amendment to the Consulting Services Agreement Between the
City of Dublin and Anchor
3) Consulting Services Agreement Between the City of Dublin and Anchor for On -Call
Construction Management and Inspection Services
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Attachment I
RESOLUTION NO. XX — 24
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AMENDMENT TO THE AGREEMENT WITH ANCHOR FOR ON -CALL
CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
WHEREAS, in 2021, Staff prepared and initiated a Requests for Qualifications (RFQs) for
Construction Management and Inspection Services; and
WHEREAS, during that time, Staff reviewed and selected the most qualified contractors
and entered into agreements for these services and deemed eight other contractors qualified,
including Anchor (formerly named AnchorCM); and
WHEREAS, the City entered into an agreement with Anchor on December 1, 2023, which
expires on June 30, 2024; and
WHEREAS, the City wishes to amend the agreement with Anchor to extend the term to
June 30, 2026, and increase the not -to -exceed compensation to $1,000,000.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the amendment to the agreement with Anchor, attached hereto as Exhibit A to
this Resolution.
BE IT FURTHER RESOLVED that the City Manager, or designee, is authorized to execute
Exhibit A, and make any necessary, non -substantive changes to Exhibit A to carry out the intent
of this Resolution.
PASSED, APPROVED AND ADOPTED this 2nd day of April 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
Reso. No. XX-24, Item X.X, Adopted 04/02/2024 Page 1 of 1 3
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Attachment 2
AMENDMENT #1 TO CONSULTING SERVICES AGREEMENT
BETWEEN THE CITY OF DUBLIN AND ANCHOR
WHEREAS, on December 1, 2023, the City of Dublin (hereinafter referred to as
"CITY") and Anchor (hereinafter referred to as " CONSULTANT ") entered into a Consulting
Services Agreement for On -Call Construction Management and Inspection Services
(hereinafter referred to as the "AGREEMENT"); and
WHEREAS, the existing AGREEMENT will expire on June 30, 2024; and
WHEREAS, the CITY and CONSULTANT now wish to amend the Agreement
to extend the term through June 30, 2026 by modifying section 1.1 of the Agreement and to
increase the not to exceed compensation amount to $1,000,000 by modifying Section 2 of the
Agreement; and
WHEREAS, the CITY and CONSULTANT now wish to amend the
AGREEMENT to update the compensation schedule by modifying Exhibit B of the
AGREEMENT.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the AGREEMENT is amended as follows:
1) Section 1.1 shall be rescinded in its entirety and replaced with the following:
Term of Services. The term of this Agreement shall begin on the Effective Date and
shall end on June 30, 2026, the date of completion specified in Exhibit A, and
Consultant shall complete the work described in Exhibit A on or before 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 referenced
in Section 8. Notwithstanding the foregoing this Agreement may be extended on a
month to month basis for up to 6 months upon the written consent of the Consultant
and the City Manager, provided that: a) sufficient funds have been appropriated for
such purchase, b) the price charged by the Consultant for the provision of the serves
described in Exhibit A does not increase. None of the foregoing shall affect the City's
right to terminate the Agreement as provided for in Section 8.
2) Section 2 COMPENSATION, the first paragraph shall be rescinded in its entirety and
replaced with the following:
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to
exceed $1,000,000, notwithstanding any contrary indications that may be contained in
the Consultant's proposal, for services to be performed and reimbursable costs
incurred under his Agreement. In the event of a conflict between this Agreement and
the Consultant's proposal, regarding the amount of compensation, the Agreement shall
prevail. City shall pay Consultant for services rendered pursuant to this Agreement at
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the time and in the manner set forth herein. Consultant shall submit all invoices to City
in the manner specified herein. Except as specifically authorized by City, Consultant
shall not bill City for duplicate services performed by more than one person.
3) Revised Exhibit B (Compensation Schedule & Reimbursable Expenses) of the
AGREEMENT if amended per the attached.
4) Except to the extent inconsistent with this First Amendment, the Parties ratify and
confirm all of the terms and conditions of the AGREEMENT.
5) All requisite insurance policies to be maintained by the Consultant pursuant to the
Agreement, as may have been amended from time to time, shall include coverage for
the amended term, as described above.
6) The individuals executing this Amendment and the instruments referenced in it on
behalf of Consultant each represent and warrant that they have the legal power, right
and actual authority to bind Consultant to the terms and conditions of this
Amendment.
SIGNATURES ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
executed as of the date of the City Manager's signature below.
CITY OF DUBLIN ANCHOR ENGINEERING
By:
DocuSigned by:
By:
Linda Smith D'Ambrosio, City Manager BiSa Grant, President and CEO
Dated:
ATTEST:
By:
Marsha Moore, City Clerk
APPROVED AS TO FORM:
By:
City Attorney
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EXHIBIT B
ANCHOR 2023 — 2025 Fee Schedule
Principal
2023
2024
2025
Forensic Engineer/Expert Witness
Principal Consultant
Principal -in -Charge
$ 375
$ 343
$ 286
$ 394
$ 360
$ 300
$ 413
$ 378
$ 315
Engineer/Manager
Project Principal Engineer/CM
Senior Engineer/CM
Associate Engineer/CM
Staff Engineer/CM Level 4 (PE or equivalent)
Staff Engineer/CM Level 3 (PE or equivalent)
Staff Engineer/CM Level 2 (EIT or equivalent)
Staff Engineer/Deputy CM Level 1
$ 251
$ 228
$ 201
$ 184
$ 171
$ 147
$ 121
$ 264
$ 239
$ 211
$ 193
$ 180
$ 154
$ 127
$ 277
$ 251
$ 222
$ 203
$ 189
$ 162
$ 133
Engineering Technician
Scheduler/Estimator $ 237 $ 249 $ 261
Senior Engineering Technician $ 164 $ 172 $ 181 _
Mid Engineering Technician $ 129 $ 135 $ 142 _
Engineering Technician $ 103 $ 108 $ 114
Junior Engineer/Assistant $ 116 $ 122 $ 128
Inspector
1
Construction Representative/Senior Inspector $ 187 $ 196 $ 206
Prevailing Wage Building/Construction Inspector $ 175 $ 184 $ 193
Prevailing Wage Soils/AC Inspector $ 175 $ 184 $ 193
Project Administrative Staff
Senior Contract Administrator/Senior Contract Manager $ 164 $ 172 $ 181
Bookkeeper $ 164 $ 172 $ 181
Contract Administrator/Contract Manager $ 114 $ 120 $ 126
Contract Administration Assistant $ 78 $ 82 $ 86
Notes:
1. For Inspectors, field vehicles will be billed at $1,700/month; cell phone and mobile
broadband service billed at $90/mo.
2. Mileage reimbursement per IRS published rate.
3. Other direct costs (ODCs) are billed at cost.
4. Subconsultant fees are billed separately at cost plus 10%.
5. 4- and 8-hour minimums apply for cancellations, tasks requiring travel, and legal appearances.
6. Contract project staff will be billed at the contract rate for legal work and
appearances, with yearly escalations applied.
7. Inspector rates meet requirements of the California Department of Industrial Relations.
8. Overtime and double-time hours will be billed at 1.5x and 2.0x stated rates.
9. Special shift hours will be billed at 1.1x stated, overtime and double time rates.
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Attachment 3
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
ANCHOR
FOR
ON -CALL CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Anchor ("Consultant") (together sometimes referred to as the "Parties") as of December 1, 2023 (the
"Effective Date").
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant
shall provide to City the services described 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 shall begin on the Effective Date and shall
end on June 30,2024, the date of completion specified in Exhibit A, and Consultant shall
complete the work described in Exhibit A on or before 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 referenced in Section 8. Notwithstanding
the foregoing this Agreement may be extended on a month to month basis for up to 6
months upon the written consent of the Consultant and the City Manager, provided that: a)
sufficient funds have been appropriated for such purchase, b) the price charged by the
Consultant for the provision of the serves described in Exhibit A does not increase. None
of the foregoing shall affect the City's right to terminate the Agreement as provided for in
Section 8.
1.2 Standard of Performance. Consultant shall perform all 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.
1.3 Assignment 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 performance
provided in Subsection 1.2 above and to satisfy Consultant's obligations hereunder.
1.5 Public Works Requirements. Because the services described in Exhibit A include "work
performed during the design and preconstruction phases of construction including, but not
Consulting Services Agreement between City of Dublin and
Anchor for On -Call Construction Management and Inspection Services
12/01/2023
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limited to, inspection and land surveying work," the services constitute a public works
within the definition of Section 1720(a)(1) of the California Labor Code. As a result,
Consultant is required to comply with the provisions of the California Labor Code
applicable to public works, to the extent set forth in Exhibit D.
1.6 Public Works Contractor Registration. Consultant agrees, in accordance with Section
1771.1 of the California Labor Code, that Consultant or any subconsultant shall not be
qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104
of the Public Contract Code, or engage in the performance of any contract for public work,
as defined in Chapter 1 of Part 7 of Division 2 of the California Labor Code, unless
currently registered and qualified to perform public work pursuant to California Labor Code
section 1725.5. It is not a violation of this section for an unregistered contractor to submit a
bid that is authorized by Section 7029.1 of the Business and Professions Code or by
Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is
registered to perform public work pursuant to Section 1725.5 at the time the contract is
awarded. No contractor or subcontractor may be awarded a contract for public work on a
public works project unless registered with the Department of Industrial Relations pursuant
to California Labor Code section 1725.5. Consultant agrees, in accordance with Section
1771.4 of the California Labor Code, that if the work under this Agreement qualifies as
public work, it is subject to compliance monitoring and enforcement by the Department of
Industrial Relations.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $44,000,
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 shall be the only payments from
City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to
City in the manner specified herein. Except as specifically authorized by City in writing, 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. No individual performing work under this Agreement shall
bill more than 2,000 hours in a fiscal year unless approved, in writing, by the City Manager
or his/her designee. Invoices shall contain the following information:
■ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
Consulting Services Agreement between City of Dublin and
Anchor for On -Call Construction Management and Inspection Services
12/01/2023
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■ The beginning and ending dates of the billing period;
■ A Task Summary containing the original contract amount, the amount of prior billings,
the total due this period, the balance available under the Agreement, and the
percentage of completion;
■ A copy of the applicable time entries or time sheets shall be submitted showing the
following:
o Daily logs of total hours worked by each individual performing work under
this Agreement
o Hours must be logged in increments of tenths of an hour or quarter hour
o If this Agreement covers multiple projects, all hours must also be logged
by project assignment
o A brief description 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;
■ The Consultant's signature;
■ Consultant shall give separate notice to the City when the total number of hours
worked by Consultant and any individual employee, agent, or subcontractor of
Consultant reaches or exceeds 800 hours within a 12-month period under this
Agreement and any other agreement between Consultant and City. Such notice shall
include an estimate of the time necessary to complete work described in Exhibit A and
the estimate of time necessary to complete work under any other agreement between
Consultant and City, if applicable.
2.2 Monthly Payment. 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 60 days after completion of the services and submittal to City of a final
invoice, if all services required have been satisfactorily 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.
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,
Consulting Services Agreement between City of Dublin and
Anchor for On -Call Construction Management and Inspection Services
12/01/2023
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unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto as Exhibit B.
2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B. Expenses
not listed in Exhibit B are not chargeable to City. 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 satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets 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 furnish 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 furnishing 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 fully executing this Agreement, Consultant, at its
own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance
listed below 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. Consistent with the following provisions, 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, and that such insurance is in effect prior to beginning work.
Consultant shall maintain the insurance policies required by this section throughout the term of this
Agreement. The cost of such insurance shall be included in the Consultant's bid or proposal. Consultant
shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
Consulting Services Agreement between City of Dublin and
Anchor for On -Call Construction Management and Inspection Services
12/01/2023
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insurance required herein for the subcontractor(s) and provided evidence to City that such insurance is in
effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF
THIS AGREEMENT PRIOR TO EXECUTION. Consultant shall maintain all required insurance listed
herein for the duration of this Agreement.
4.1 Workers' Compensation.
4.1.1 General Requirements. Consultant shall, 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 shall be
provided with limits of not less than $1,000,000 per accident. In the alternative,
Consultant may rely on a self-insurance program to meet these requirements, but
only if the program of self-insurance complies fully with the provisions of the
California Labor Code. Determination of whether a self-insurance program meets
the standards of the California Labor Code shall be solely in the discretion of the
Contract Administrator.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation
in favor of the entity for all work performed by the Consultant, its employees,
agents, and subcontractors.
4.1.2 Submittal Requirements. To comply with Subsection 4.1, Consultant shall
submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section;
and
b. Waiver of Subrogation Endorsement as required by the section.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General Requirements. Consultant, at its own cost and expense, shall maintain
commercial general liability insurance for the term of this Agreement in an amount
not less than $1,000,000 and automobile liability insurance for the term of this
Agreement in an amount not less than $1,000,000 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 separately 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 shall 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 without limitation, blanket contractual liability and the
use of owned and non -owned automobiles.
Consulting Services Agreement between City of Dublin and
Anchor for On -Call Construction Management and Inspection Services
12/01/2023
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4.2.2 Minimum Scope of Coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (most recent edition) covering comprehensive General Liability on an
"occurrence" basis. Automobile coverage shall be at least as broad as Insurance
Services Office Automobile Liability form CA 0001, Code 1 (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 a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis, and not
on a claims -made basis.
b. City, its officers, officials, employees, and volunteers are to be covered as
additional insureds as respects: liability arising out of work or operations
performed by or on behalf of the Consultant; or automobiles owned,
leased, hired, or borrowed by the Consultant.
c. Consultant hereby agrees to waive subrogation which any insurer or
contractor may require from vendor by virtue of the payment of any loss.
Consultant agrees to obtain any endorsements that may be necessary to
effect this waiver of subrogation.
d. For any claims related to this Agreement or the work hereunder, the
Consultant's insurance coverage shall be primary insurance as respects
the City, its officers, officials, employees, and volunteers. Any insurance
or self-insurance maintained by the City, its officers, officials, employees,
or volunteers shall be excess of the Consultant's insurance and shall not
contribute with it.
4.2.4 Submittal Requirements. To comply with Subsection 4.2, Consultant shall
submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section;
b. Additional Insured Endorsement as required by the section;
c. Waiver of Subrogation Endorsement as required by the section; and
d. Primary Insurance Endorsement as required by the section.
4.3 Professional Liability Insurance.
4.3.1 General Requirements. Consultant, at its own cost and expense, shall maintain
for the period covered by this Agreement professional liability insurance for
Consulting Services Agreement between City of Dublin and
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licensed professionals performing work pursuant to this Agreement in an amount
not less than $2,000,000 covering the licensed professionals' errors and
omissions. Any deductible or self -insured retention shall not exceed $150,000 per
claim.
4.3.2 Claims -Made Limitations. The following provisions shall apply if the professional
liability coverage is 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 3 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 shall purchase an extended period coverage
for a minimum of 3 years after completion of work under this Agreement.
d. A copy of the claim reporting requirements must be submitted to the City
for review prior to the commencement of any work under this Agreement.
4.3.3 Submittal Requirements. To comply with Subsection 4.3, Consultant shall
submit the Certificate of Liability Insurance in the amounts specified in the section.
4.4 All Policies Requirements.
4.4.1 Acceptability 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 Coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish City with complete copies of all Certificates of Liability
Insurance delivered to Consultant by the insurer, including complete copies of all
endorsements attached to the policies. All copies of Certificates of Liability
Insurance and certified endorsements shall show the signature of a person
authorized by that insurer to bind coverage on its behalf. If the City does not
receive the required insurance documents prior to the Consultant beginning work,
it shall not waive the Consultant's obligation to provide them. The City reserves
the right to require complete copies of all required insurance policies at any time.
4.4.3 Deductibles and Self -Insured Retentions. Consultant shall disclose to and
obtain the written 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. At the option of the City, either: the insurer shall reduce or eliminate
such deductibles or self -insured retentions as respects the City, its officers,
Consulting Services Agreement between City of Dublin and
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employees, and volunteers; or the Consultant shall provide a financial guarantee
satisfactory to the City guaranteeing payment of losses and related investigations,
claim administration and defense expenses.
4.4.4 Wasting Policies. No policy required by this Section 4 shall include a "wasting"
policy limit (i.e. limit that is eroded by the cost of defense).
4.4.5 Endorsement Requirements. Each insurance policy required by Section 4 shall
be endorsed to state that coverage shall not be canceled by either party, except
after 30 days' prior written notice has been provided to the City.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
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 compliance with the requirements hereof; and/or
■ Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Refer to the attached
Exhibit C, which is incorporated herein and made a part of this Agreement.
Section 6. STATUS OF CONSULTANT.
6.1 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. This Agreement shall
not be construed as an agreement for employment. 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 Subsection 1.3; however, otherwise
City shall not have the right to control the means by which Consultant accomplishes
services rendered pursuant to this Agreement. Consultant further acknowledges that
Consultant performs Services outside the usual course of the City's business; and is
customarily engaged in an independently established trade, occupation, or business of the
same nature as the Consultant performs for the City and has the option to perform such
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work for other entities. 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 contribution to be paid by City for employer contributions and/or
employee contributions for PERS benefits.
6.2 Consultant Not an Agent. 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 authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws and regulations applicable to the performance of the work hereunder, including but
not limited to, the California Building Code, the Americans with Disabilities Act, and any
copyright, patent or trademark law. Consultant's failure to comply with any law(s) or
regulation(s) applicable to the performance of the work hereunder shall constitute a breach
of contract.
7.3 Other Governmental Regulations. 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 Egual Opportunity. Consultant shall not discriminate, on the
basis of a person's race, sex, gender, religion (including religious dress and grooming
practices), national origin, ancestry, physical or mental disability, medical condition
(including cancer and genetic characteristics), marital status, age, sexual orientation, color,
creed, pregnancy, genetic information, gender identity or expression, political affiliation or
belief, military/veteran status, or any other classification protected by applicable local,
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state, or federal laws (each a "Protected Characteristic"), 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 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.
Consultant may cancel this Agreement upon 30 days' written notice to City and shall
include in such notice the reasons for cancellation.
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
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 Assignment and Subcontracting. 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 written 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.
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8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms
of this Agreement, City's remedies shall include, but are not 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
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 necessarily 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 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 Subsection 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 $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 3 years after final payment under the Agreement.
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Section 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys' 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 trial of such action shall be vested exclusively in the
state courts of California in the County of Alameda or in the United States District Court for
the Northern District of California.
10.3 Severability. 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.
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 Assigns. 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 Government 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 California Government Code Section 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous 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 12 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 California Government Code
Section 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
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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 California Government Code
Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the
State of California.
At City's sole discretion, Consultant may be required to file with the City a Form 700 to
identify and document Consultant's economic interests, as defined and regulated by the
California Fair Political Practices Commission. If Consultant is required to file a Form 700,
Consultant is hereby advised to contact the Dublin City Clerk for the Form 700 and
directions on how to prepare it.
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 materials.
10.9 Contract Administration. This Agreement shall be administered by the City Manager
("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:
Anchor
Attn: Erin Hanigan
P.O. Box 2261
Dublin, CA 94568
Any written notice to City shall be sent to:
City of Dublin
Att:City Engineer
100 Civic Plaza
Dublin, CA 94568
10.11 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibits A. B, C, and D represents the entire and integrated
agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral.
Exhibit A Scope of Services
Exhibit B Compensation Schedule & Reimbursable Expenses
Exhibit C Indemnification
Exhibit D California Labor Code Section 1720 Information =
10.12 Counterparts and Electronic Signatures. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which together shall constitute
one agreement. Counterparts delivered and/or signatures executed by City -approved
electronic or digital means shall have the same force and effect as the use of a manual
Consulting Services Agreement between City of Dublin and
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signature. Both Parties desire this Agreement to be electronically signed in accordance
with applicable federal and California law. Either Party may revoke its agreement to use
electronic signatures at any time by giving notice to the other Party.
10.13 Certification per Iran Contracting Act of 2010. In the event that this contract is for
one million dollars ($1,000,000.00) or more, by Consultant's signature below Consultant
certifies that Consultant, and any parent entities, subsidiaries, successors or subunits of
Consultant are not identified on a list created pursuant to subdivision (b) of Section 2203 of
the California Public Contract Code as a person engaging in investment activities in Iran as
described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b)
of Section 2202.5 of the California Public Contract Code, as applicable.
SIGNATURES ON FOLLOWING PAGE
Consulting Services Agreement between City of Dublin and
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The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear
below certify that they are authorized to sign on behalf of the respective Party.
CITY OF DUBLIN
ANCHOR
e—DocuSi ned by: DocuSigned by:
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Linua arnnn, uny manager
Attest:
DocuSigned by:
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Marsna iviuure, L.ny L#rerrc
Approved as to Form:
DocuSigned by:
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--21204750D69C449...
City Attorney
3070368.1
5D88A438782B425...
Bisa �ranr, rresluent and CEO
Consultant's DIR Registration Number
(if applicable)
Consulting Services Agreement between City of Dublin and
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EXHIBIT A
SCOPE OF SERVICES
The Scope of Services is intended as a guide to illustrate the minimum project requirements. The Consultant
Construction Management Team will provide professional and technical services to manage the
construction, and inspection, for the assigned project under the supervision of the City of Dublin. The
Consultant shall provide all other necessary equipment, vehicle(s), cell phone, tools of the trade, etc.
necessary for the project team to successfully complete the project.
Services During Pre -Construction:
The Construction Manager will assist City Staff in the following:
1. Perform a review of the construction documents issued to the City for review and provide
recommendations regarding feasibility of construction methods, current availability of materials and
labor and time requirements for procurement. Identify materials or services which may have a long
lead time and could impact to the project. Provide written comments to the City for incorporation
into the bid documents by addendum if necessary.
2. Work with the City to develop strategies to generate market interest in the Project.
3. Take the lead in managing the bid process including receiving bidder's questions, distributing
information to the Owner and their consultant, issuing bid addendums, analyzing bids and
ultimately make a recommendation of award to the City Project Manager. Provide documentation
and substantiation to allow staff to gain Council approval of award.
4. Maintain an electronic project management filing system on the City's network using the Microsoft
office suite.
5. Work with and provide project specific construction recommendations to the design team. Review
and provide comment on the construction logistics plans produced by the design team.
Services During Construction:
The Construction Manager will represent the City during construction of the project. The Construction
Manager will perform the following specific services:
1. Coordinate the efforts of the engineer, contractor, local agencies, and City to ensure proper
communication and progress of the project. Act as liaison to the City through the City's Project
Manager.
2. Schedule, direct and supervise the Project Inspector or work with the City's Sr. Inspector in
assignment of inspection staff.
3. Coordinate all required testing services and review testing reports and materials testing personnel.
4. Provide on -site coordination to assure that the project meets the Plans and Specifications and
stays on budget and schedule.
5. Review, evaluate, and furnish recommendations to the City regarding contractor's performance,
construction schedule and any other matters related to compliance with the contract.
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6. Provide a daily log of events and activities so as to secure the City's interests and monitor work
accomplished in accordance with the contract.
7. Review, track and assist in the preparation of responses to Contractor RFI's.
8. Review, track and assist in the review of Contractor submittals.
9. Review and track certificates of compliance and product submittals for conformance to the project
Special Provisions and/or Caltrans Standard Specifications and Plans.
10. Provide a monthly update outlining project status, schedule, submittals, RFI's, and change order
issues. Include pertinent photos or supporting documents. The report should include an analysis of
any potential delays and their actual relevance. The report should be suitably formatted to share
with the City Manager's Office.
11. Issue Weekly Statement of Days Charged.
12. Review and furnish contract correspondence, minutes of meetings and directives to be issued to
secure the interests of the City.
13. Review and make recommendations regarding payments to contractor including Change Orders,
when applicable, and recommendations regarding any proposed changes. Prepare and provide
cost analysis where necessary to verify change order costs generated by the Contractor are
reasonable and correct in scope.
14. Attend all construction -related site meetings with the City's representatives, contractors, and other
meetings between related parties as required. Maintain separate notes on such meetings.
15. Verify that the Contractor complies with the requirement of the project's water pollution control and
staff the project with the required personal and submit necessary documentation to the SMART
system.
16. Assist the Design Consultants Team to ensure compliance with the project's various environmental
requirements and permits
17. Assist with providing any information to the City Departments as required.
18. Monitor contractor's construction activities to ensure the General Contractor is providing proper
planning and coordination of work crews and of subcontractors for the execution of the project
work.
19. Identify potential claims and make recommendations to resolve them.
20. Upon completion of the project work, provide a punch list review and recommendation of Project
Acceptance.
21. Upon completion of the project work, review all of the Contractor's final submittals to ensure their
compliance with final project close-out requirements.
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22. The construction Contractor shall be responsible for job site safety. Should a safety or hazardous
condition be discovered by the Construction Management Team, it shall be brought to the attention
of the Contractor and inform the City.
The Project Inspector will represent the City during construction and report to the Construction Manager or
Inspector of Record or City Representative:
1. Provide on -site inspection to assure that the project is constructed in compliance with the Plans
and Specifications.
2. Perform the duties designated by the City's Building Department Inspector or Inspector of Record
for the project.
3. Provide inspectors daily report of events, manpower, and activities so as to secure the City's
interests and monitor work accomplished in accordance with the contract. Daily progress pictures
shall be incorporated into the report.
4. Take digital photographs and digital video tape recordings of the construction progress on a regular
basis, including pre -construction conditions within the project limits.
5. Collect material tags and verify materials on site meet project specifications and project submittals.
6. Maintain a redline set of as -built plans and specifications.
7. Track and field -verify quantities of actual improvements installed by the Contractor and maintain a
quantity bid sheet for each bid item of work.
8. Assists the Construction Manager or City Representative in review and recommendation of
progress payments.
9. Track and document Time and Materials work issued to the Contractor.
10. Working with the Construction Manager and other agencies and permit holders to issue a project
punch -list.
Post -Construction Services:
1. Provide marked up construction record drawings (as -built drawings) for designer completion.
2. Coordinate and prepare final progress payment.
3. Provide final inspection services and project closeout activities including preparation of final
construction project report and other documents required by City of Dublin, City Building
Department or Authority having Jurisdiction and resolve all contractor claims if any.
4. Resolution of all contract issues, warranties, bonds, etc.
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Turn all construction documents over to the City of Dublin.
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EXHIBIT B
COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES
ANCHOR 2023 — 2025 Fee Schedule
Principal
Forensic Engineer/Expert Witness
Principal Consultant
Principal -in -Charge
2023
$ 375
$ 343
$ 286
2024 2025
$ 394 $ 413
$ 360 $ 378
$ 300 $ 315
Engineer/Manager
Project Principal Engineer/CM
Senior Engineer/CM
Associate Engineer/CM
Staff Engineer/CM Level 4 (PE or equivalent)
Staff Engineer/CM Level 3 (PE or equivalent)
Staff Engineer/CM Level 2 (EIT or equivalent)
Staff Engineer/Deputy CM Level 1
$ 251
$ 228
$ 201
$ 184
$ 171
$ 147
$ 121
$ 264
$ 239
$ 211
$ 193
$ 180
$ 154
$ 127
$ 277
$ 251
$ 222
$ 203
$ 189
$ 162
$ 133
Engineering Technician
Scheduler/Estimator $ 237 $ 249
1 Senior Engineering Technician $ 164 $ 172
Mid Engineering Technician $ 129 $ 135
Engineering Technician $ 103 $ 108
Junior Engineer/Assistant $ 116 $ 122
$ 261
$ 181
$ 142
$ 114
$ 128
Inspector
Construction Representative/Senior Inspector
Prevailing Wage Building/Construction Inspector
Prevailing Wage Soils/AC Inspector
$ 187
$ 175
$ 175
$ 196
$ 184
$ 184
$ 206
$ 193
$ 193
Project Administrative Staff
Senior Contract Administrator/Senior Contract Manager $ 164 $ 172 $ 181
Bookkeeper $ 164 $ 172 $ 181
Contract Administrator/Contract Manager $ 114 $ 120 $ 126
Contract Administration Assistant $ 78 $ 82 $ 86
Notes:
1. For Inspectors, field vehicles will be billed at $1,700/month; cell phone and mobile
broadband service billed at $90/mo.
2. Mileage reimbursement per IRS published rate.
3. Other direct costs (ODCs) are billed at cost.
4. Subconsultant fees are billed separately at cost plus 10%.
5. 4- and 8-hour minimums apply for cancellations, tasks requiring travel, and legal appearances.
6. Contract project staff will be billed at the contract rate for legal work and
appearances, with yearly escalations applied.
7. Inspector rates meet requirements of the California Department of Industrial Relations.
8. Overtime and double-time hours will be billed at 1.5x and 2.0x stated rates.
9. Special shift hours will be billed at 1.1x stated, overtime and double time rates.
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10. Rates for future calendar years will be increased by 5% annually on January 1 of each year.
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EXHIBIT C
INDEMNIFICATION
A. Consultant shall, to the extent permitted by law, including without limitation California Civil Code 2782
and 2782.8, indemnify, hold harmless and assume the defense of, in any actions at law or in equity, the
City, its employees, agents, volunteers, and elective and appointive boards, from all claims, losses, and
damages, including property damage, personal injury, death, and liability of every kind, nature and
description, arising out of, pertaining to or related to the negligence, recklessness or willful misconduct
of Consultant or any person directly or indirectly employed by, or acting as agent for, Consultant, during
and after completion of Consultant's work under this Agreement.
B. With respect to those claims arising from a professional error or omission, Consultant shall defend,
indemnify and hold harmless the City (including its elected officials, officers, employees, and
volunteers) from all claims, losses, and damages arising from the professionally negligent acts, errors
or omissions of Consultant, however, the cost to defend charged to Consultant shall not exceed
Consultant's proportionate percentage fault.
C. Consultant's obligation under this section does not extend to that portion of a claim caused in whole or
in part by the sole negligence or willful misconduct of the City.
D. Consultant shall also indemnify, defend and hold harmless the City from all suits or claims for
infringement of any patent rights, copyrights, trade secrets, trade names, trademarks, service marks, or
any other proprietary rights of any person or persons because of the City or any of its officers,
employees, volunteers, or agents use of articles, products things, or services supplied in the
performance of Consultant's services under this Agreement, however, the cost to defend charged to
Consultant shall not exceed Consultant's proportionate percentage fault.
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EXHIBIT D
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the
services described in Exhibit A shall constitute a legal day's work under this contract.
B. In accordance with California Labor Code Section 1811, the time of service of any worker
employed in performance of the services described in Exhibit A is limited to 8 hours during any
one calendar day, and 40 hours during any one calendar week, except in accordance with
California Labor Code Section 1815, which provides that work in excess of 8 hours during any
one calendar day and 40 hours during any one calendar week is permitted upon compensation
for all hours worked in excess of 8 hours during any one calendar day and 40 hours during any
one calendar week at not less than one -and -one-half times the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the City $25 for each worker
employed in the performance of the services described in Exhibit A for each calendar day during
which the worker is required or permitted to work more than 8 hours in any one calendar day, or
more than 40 hours in any one calendar week, in violation of the provisions of California Labor
Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the City has determined the general
prevailing wages in the locality in which the services described in Exhibit A are to be performed
for each craft or type of work needed to be as published by the State of California Department of
Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the
City Public Works Office and shall be made available on request. The Consultant and
subcontractors engaged in the performance of the services described in Exhibit A shall pay no
less than these rates to all persons engaged in performance of the services described in Exhibit
A.
B. In accordance with California Labor Code Section 1775, the Consultant and any subcontractors
engaged in performance of the services described in Exhibit A shall comply with California Labor
Code Section 1775, which establishes a penalty for each worker engaged in the performance of
the services described in Exhibit A that the Consultant or any subcontractor pays less than the
specified prevailing wage. The amount of such penalty shall be determined by the Labor
Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of
the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the
previous record of the Consultant or subcontractor in meeting applicable prevailing wage
obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of
prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of
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prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their
obligations under the California Labor Code. The Consultant or subcontractor shall pay the
difference between the prevailing wage rates and the amount paid to each worker for each
calendar day or portion thereof for which each worker was paid less than the prevailing wage
rate. If a subcontractor worker engaged in performance of the services described in Exhibit A is
not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable
for any penalties therefore unless the Consultant had knowledge of that failure or unless the
Consultant fails to comply with all of the following requirements:
1. The contract executed between the Consultant and the subcontractor for the performance of
part of the services described in Exhibit A shall include a copy of the provisions of California
Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of per diem
wages by the subcontractor by periodic review of the subcontractor's certified payroll
records.
3. Upon becoming aware of a subcontractor's failure to pay the specified prevailing rate of
wages, the Consultant shall diligently take corrective action to halt or rectify the failure,
including, but not limited to, retaining sufficient funds due the subcontractor for performance
of the services described in Exhibit A.
4. Prior to making final payment to the subcontractor, the Consultant shall obtain an affidavit
signed under penalty of perjury from the subcontractor that the subcontractor has paid the
specified general prevailing rate of per diem wages for employees engaged in the
performance of the services described in Exhibit A and any amounts due pursuant to
California Labor Code Section 1813.
C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor
engaged in performance of the services described in Exhibit A shall keep accurate payroll
records showing the name, address, social security number, work, straight time and overtime
hours worked each day and week, and the actual per diem wages paid to each journeyman,
apprentice, worker, or other employee employed in performance of the services described in
Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made
under penalty of perjury, stating both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of California Labor Code Sections 1771,
1811, and 1815 for any work performed by the employer's employees on the public works
project.
The payroll records required pursuant to California Labor Code Section 1776 shall be certified
and shall be submitted directly to the Labor Commission, and available for inspection by the
Owner and its authorized representatives, the Division of Labor Standards Enforcement, the
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Division of Apprenticeship Standards of the Department of Industrial Relations and shall
otherwise be available for inspection in accordance with California Labor Code Section 1776.
D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the
Consultant and any subcontractors engaged in performance of the services described in Exhibit
A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5
governing employment and payment of apprentices on public works contracts.
E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance
of the services described in Exhibit A to employ for the services described in Exhibit A any
person in a trade or occupation (except executive, supervisory, administrative, clerical, or other
non -manual workers as such) for which no minimum wage rate has been determined by the
Director of the Department of Industrial Relations, the Consultant or subcontractor shall pay the
minimum rate of wages specified therein for the classification which most nearly corresponds to
services described in Exhibit A to be performed by that person. The minimum rate thus
furnished shall be applicable as a minimum for such trade or occupation from the time of the
initial employment of the person affected and during the continuance of such employment.
3070368.1
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