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Home My WebLink About4.04 I-580 Fallon Interch Improv CITY CLERK File # D~[][Q]-b1J[b] AGENDA STATEMENT CITY COUNCIL MEETING DATE: October 16, 2007 SUBJECT: Amendment to Consulting Services Agreement with S&C Engineers, Inc. (S&C) for the I-580/Fallon Road Interchange Improvements Proj ect Report Prepared by: Melissa Morton, Public Works Dir~ ATTACHMENTS: 1) Resolution amending the Agreement, together with Exhibit "A," Amendment to the Agreement ,Original Agreement dated August 1, 2006 RECOMMENDATIZ\- Adopt the resolution approving the Amendm~nt to the Agreement with S&C Engineers, Inc. FINANCIAL STATEMENT: The cost of expanding S&C's scope of work will be paid with monies advanced by the Lin Family to construct the I-580/Fallon Road Interchange Improvements project. S&C's original agreement covered a construction management scope of work in an amount not to exceed $1,336,477. This amendment will add $124,330.22 to S&C's current contract for a new total of $1,460,807.22. The total proj ect management/inspection proposal is as follows: Original Contract: Amendment #1: Implement and Enforce Fish and Wildlife Mitigation Measures (S&C): Biological Subconsultant (H.T. Harvey And Associates): Subtotal (Amendment #1): ' TOTAL: $ 1,336,477.00 $ 42,192.92 $ 82,137.30 $ 124,330.22 $ 1,460,807.22 ------------------------------------------------------------------------------------------------------------- COPY TO: James Scott, S&C Engineers, Inc. ITEM NO. +1 Page 1 of2 G:\CONSULTANTS\S&C Engineers\Fallon Road\Agst S&C Amndmt #1 580-Fallon 1O-16-07.doc DESCRIPTION: On August 1, 2006, the City Council approved a Consulting Services Agreement S&C to manage the construction of the I-580/Fallon Road Interchange Improvements project. The 100% plans and specifications had been submitted to Caltrans, and the City was awaiting the ; final endorsement of the documents, along with the necessary approvals from the Federal Highway Administration and U.S. Fish and Wildlife Service. In July 2007, the US Fish and Wildlife Service released its Biological Opinion for the proposed I-580/Fallon Road Interchange Project on the threatened California tiger salamander, threatened California red-legged frog, and the endangered San Joaquin kit fox. The project Biological Opinion, which is issued under the authority of the Endangered Species Act of 1973, requires: 1) the implementation of conservation measures to minimize the effect of the proposed project on said species, and 2) compliance with the terms and conditions specified in the Biological Opinion to be exempt from the prohibitions of Section 9 of the Act which prohibits the take of endangered and threatened species. According to the terms and conditions included in the Biological Opinion, the project Resident Engineer shall be responsible for implementing the conservation measures, terms and conditions and shall be the point of contact for the project. Furthermore, a qualified biologist(s) is required to be onsite during all activities that may result in the take of the San Joaquin kit fox, California tiger salamander, and/or California red-legged frog. The original scope of work for S&C did not include the implementation and enforcement of the measures, terms and conditions specified in the U.S. Fish and Wildlife Service's Biological Opinion. Staff has requested that S&C revise the scope of work to include the implementation of these measures, including the hiring of a qualified biologist(s) for the project. S&C proposes to hire the firm of H.T. Harvey and Associates as a sub-consultant to assist in implementing the conservation measures and to provide the services of qualified biologist(s) onsite, as required. Also included in the revised scope of work are an employee education program, pre-construction wildlife surveys, and post-construction compliance reporting. The cost of the revised scope of work, based on S&C's poposal, is a not-to-exceed amount of $124,330.22 and will be paid with the monies advanced by the Lin Family to construct the project. Staff anticipates acquiring the Caltrans permits and approvals this fall in time to bid and award the project in early 2008. Construction time is estimated at 12 months. Staff recommends that the City Council adopt the resolution approving the Amendment to the Agreement with S&C Engineers, Inc. Page 2 of2 1~J1 RESOLUTION NO. - 07 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING AMENDMENT TO AGREEMENT WITH S&C ENGINEERS, INC., FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE I-580/FALLON ROAD INTERCHANGE IMPROVEMENTS PROJECT WHEREAS, the I-580/Fallon Road Interchange Improvements Project (Project) is planned to be constructed as part of the development process in eastern Dublin; and WHEREAS, the City has submitted to Caltrans the 100% plans and specifications for the Proj ect and is awaiting final approval of the Project; and WHEREAS, the City is required to implement the conservation measures, terms and conditions specified in the Biological Opinion issued by the U.S. Fish and Wildlife for the Project; and WHEREAS, the City of Dublin entered into an Agreement with S&C Engineers, Inc., to manage the construction ofthe Project, and the City desires to expand the scope of work for said Agreement to include the implementation of the conservation measures, terms and conditions issued by the U.S. Fish and Wildlife's Project Biological Opinion; WHEREAS, S&C's scope of work is proposed to be expanded in an additional compensation in an amount not to exceed $124,330.22; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Amendment to the Agreement with S&C Engineers, Inc. BE IT FURTHER RESOLVED that the Mayor is authorized to execute the Amendment to the Agreement, attached hereto as "Exhibit A." PASSED, APPROVED AND ADOPTED this 16th day of October, 2007, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Ai!.1. .. G:\CONSULTANTS\S&C Engineers\Fallon Road\RESO S&C Contract Approv 580-Fallon 10-6-07.DOC "-- - - ;< ~/2 '1 EXHIBIT "A" OF RESOLUTION -07 AMENDMENT TO AGREEMENT BETWEEN CITY OF DUBLIN AND S&CENGINEERS, INCORPORATED FOR CONSTRUCTION MANAGEMENT SERVICES WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and S&C Engineers, . . Inc. (hereinafter referred to as "CONSULTANT"), entered into an. agreement on August 1, 2006, to perform construction management services for the I-580/Fallon Road Interchange Improvement Project; and WHEREAS, the Scope of Work to be performed is proposed to be expanded to include the implementation and enforcement of mitigation measures outlined in the U.S. Fish and Wildlife Service Biological Opinion for the project, and the not-to-exceed contract amount is proposed to be increased to cover the cost of the additional work; NOW, THEREFORE, the parties hereto agree as follows: Scope of Work Scope of Work shall be modified to include additional scope of work as described ip. Consultant's letter dated October 1, 2007 (attached). Not- To-Exceed The total cost for time-and-materials work under this amendment shall not exceed an additional $124,330.22 based on the attached cost breakdown. CITY OF DUBLIN Mayor ATTEST: City Clerk Date: 1()~2 -0 f -~ G:\CONSULT ANTS\S&C Engineers\Fallon Road\Exhibit A -Amendment#1 ~Oct 16 07.DOC mmlTA i To the Resolution '-------- ~ -------~ J~ 027 October 1,2007 Ferdinand Del Rosario, P.E. Senior Civil Engineer City of Dublin 100 Civic Plaza Dublin, California 94568 S&C ENGiNEERS, iNC. RE: Consulting 'Services Agreement- Construction Management Services I-580/Fallon Road Interchange Improvements Request for Amendment #1 Dear Mr. Del Rosario: S&C Engineers, Inc. is providing cost information for the proposeCl amendment of the agreement between the City of Dublin and S&C Engineers, Inc. for Construction Management Services on the I-580/Fallon Road Interchange Improvement Project. As per our previous telephone conversations, the recently released Biological Opinion from the US Fish and Wildlife Service requires the City to implement and enforce several conservation (mitigation) measures to avoid, minimize and compensate for effects to the California tiger salamander, the California red-legged frog and San Joaquin kit fox. These conservation measures were not anticipated by the City or S&C Engineers when we executed the agreement for construction management services in August of2006. The measures imposed by the US Fish and Wildlife Service require additional work to be performed prior to construction as well as during construction. The added measures require the CM team to implement the measures and enforce compliance by the Contractor during construction. Many of the measures imposed by the U.S. Fish and Wildlife Service must be perfoill1edby a qualified biologist (defined as a person approved by the U.S. Fish and Wildlife Service to capture and move endangered species). Because these measures were not anticipated last August the scope of our agreement did not include a qualified biologist. Accordingly, I am including the services ofH.T. Harvey and Associates as a sub consultant to S&C Engineers as part of the amendment. S&C Engineers, Inc. is requesting $124,330.22 as compensation for the additional services required by the U.S. Fish and Wildlife Biological Opinion. Please find attached a summary of . the additional work and a breakdown of the cost for implementation, coordination and enforcement of the measures. If you have any questions regarding the enclosed imormation, please contact me at (510) 272-2970. Sincerely, L:~ t / James E. Scott, P.E. Proj ect Manager III BROADWAY I SUITE 300 . OAKLAND, CALIFORNIA 94607 . TEL 5' 0.272.2970 . FAX 510.272.2972 Additional Scope: Amendment # 1 for I-S8D/Fallon Road Jt ~ .21 Enforce the requirements of the U.S. Fish and Wildlife Service biological opinion (Ref. 1-1-07-F-0257, dated July 13, 2007) and implement the following measures as described in the Terms and Conditions of the biological opinion. Install orange-colored fencing to delineate the work area Install silt fence/exclusionary fence along the right of way to endangered species from entering the construction site. Inspect during rain events Conduct pre-construction surveys for two days and two nights prior to initiation of construction On-site meetings with construction crews to explain how to avoid accidental takes of endangered species Prepare and distribute fact sheets conveying information on endangered species Remove trash at the end of each day from construction site Inspect construction material left overnight Implement protocol established in the biological opinion if the red-legged frog is found on site Restrict construction traffic to established roads Cover or install escape ramps in excavations . Maintain and enforce 20 mph speed limit for construction vehicles Keep pets off the project site Prepare post-construction compliance report Prepare listed species discovery responses Congdon's Tarplant Seed Collection and Dispersal Biological Tasks S&C Engineers, Inc. Field Services Engineer Inspector Hours 84 298 Rate $144.20 $100.94 Total Field Services 5~.21 Total $12,112.80 $30,080.12 $42,192.92 Rates include labor, overhead, profit, cell phones, and vehicles for each employee. Total S&C Engineers H. T. Harvey & Associates - Biologists See attached summary of personnel hours and tasks Total Harvey & Associates Mark up @ 5% Total Biologists Cost $42,192.92 $78,226.00 $3,911.30 $82,137.30 Total Cost for Biological Tasks $124,330.22 I v.: ~ ~ - ..;;;: u C) .~ ~. '" ~ ;;... ~ ;;;.. r::: - ;:t ~ ..... ..... ~ ~ ES ~ :::J f!J < C) u ;...J ~- t.J ....... r;;:, C) ~ w 1:;;1 ~ .:: .~ ~ ~ ~ "" ~ t ~ .~ ... ~ :=l i5 I.l . , '" ~ '" ~ e ..:::: '-' :... .::: .::s ~ <::i <::> ~ i5 :::: <::i ~ ... '" {f ~ ~ , ~ ""' '" ~ "" 'C .;: ""'< '" ~ l'--. <;::, <;::, "I :... '" ~ ~ .::: ~ "9 ~ "'" :::: ~ ~~~ .... .... 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OJ J:4 OJ tIl <=: OJ 0. ~ ~ <l) ,::; "'i;j .tJ tIl 'S 's "0 -< t:3 .... ;!o! 1i) o ~ <l) ~ OJ) ~~~ ~ ~ ~ ~~S ~ s r:I';l ....... {/} Vl o ~ ~ u~"O -0'-' ~ e 5 '50:;5 ~ ~ t ...f-<J:4 <A <A "" '0 , 0 '0 <A <A tIl .~ 0. P.. 5 a U} ..2t:::E ~ 1-1 0,) ro ~ 8 & 11 .... 8 CI) 'S & jj 'E 6$~6J.l ~ J'-. o .-< '-' -; "0 ;:J ::I r:FJ 1~~1 ;..> Q,i eJ) "0 ::: ~ - ~ ;..> o ~ ...; - - s ~ D(-l CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND S&C ENGINEERS, INC. THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and S&C Engineers, Inc. ("Consultant") as of August 1,2006. 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 date first noted above and shall end on December 31, 2008, the date of completion specified in Exhibit A, and ,Consultant shall 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 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 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 shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 Assianment 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 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, One Million, Three Hundred Thirty Six Thousand, Four Hundred Seventy Seven and No Cents ($1,336,477.00) 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, Consultant shall not bill City for duplicate services performed by more than one person. Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1, 2006 Page 1 of 14 --_.~-_. - --- - -----_.__.~ ATTAClDlDT k q 1'J1 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: · Serial identifications of progress bills; Le., Progress Bill NO.1 for the first invoice, etc.; · 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; · 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 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, 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 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 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, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. . August 1, 2006 Page 2 of 14 10 ~ ...2'1 2.4 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the following fee schedule: 2.5 Reimbursable Expenses. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. 2.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.7 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 in order to verify costs incurred to that date. 2.8 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 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 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. Consultant shall 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.' Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1. 2006 Page 3 of 14 II ~ Jj 4.1 Workers' Compensation. 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 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 fully 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 all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. 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) days' prior written notice by certified mail, return receipt requested, has been given to the City. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General requirements. 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 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 the use of owned and non- owned automobiles. 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 (ed. 11/88) or Insurance Services Office form number Gl 0002 (ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number Gl 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) 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 an endorsement to the policy: Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1, 2006 Page 4 of 14 ),;< ~~1 a. City of Dublin, City of Pleasanton, and the State of California, their officers, employees, agents, and volunteers shall be covered as 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 special limitations on the scope of protection afforded to City of Dublin, City of Pleasanton, and the State of California, their 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 of Dublin, City of Pleasanton, and the State of California, their 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 suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 4.3 Professional Liabilitv Insurance. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreem~nt in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering 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) 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. Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1, 2006 Page 5 of 14 J3 ~d.1 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 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 coveraQe. 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 authorized 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 variation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits, and forms of . such insurance are either not commercially available, or that the City's interests are otherWise fully protected. Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1, 2006 Page 6 of 14 Ilf 1,)1 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 authorization 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. Inthe 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 compliance with the requirements hereof; and/or · Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, and hold harmless the City of Dublin, City of Pleasanton, and the State of California and their officials, officers, employees, 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 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 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 Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1, 2006 Page 7 of 14 /5 ~,;f f violation of law. It is understood that the duty of Consultant to indemnify and hold harmless 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 shall apply to any such 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 sub~ontractor 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. 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. 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 contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant No 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 applicable to the performance of the work hereunder. Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1, 2006 Page 8 of 14 161J.l 7.3 Other Governmental Reaulations. To the extent that this Agreement may be funded by fiscal assistance from another governmentai 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 Eaual Opportunity. 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, including 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. 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 byor 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 S&CEngineers, Inc. August 1, 2006 Page 9 of 14 11~1 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. Si'milarly, 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 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. 8.6 Options upon Breach bv Consultant. If Consultant materially 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 S&C Engineers, Inc. August 1, 2006 Page 100f 14 tg ~~1 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 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 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 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 S&C Engineers, Inc. August1,2006 Page 11 of 14 fq~~ 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 Recvcled 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 Sections 1090 et seq. 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 materials. 10.9 Contract Administration. This Agreement shall be administered by Melissa Morton, Director of Public Works ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: James E. Scott, President S&C Engineers, Inc. 111 Broadway, Suite 300 Oakland, CA 94607 Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1, 2006 Page 12 of 14. dO ~d1 Any written notice to City shall be sent to: Melissa Morton, Director of Public Works City of Dublin 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 DUBLIN I CONSULTANT ~~/ ... --- ....... ".,/;;~, "'..:.,. Att~9: ~ Co- ~ (} l \)\- j---~. City Cl~rk Approved as to Form: $f~ N~JL City Attorney Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1, 2006 Page 13 of 14 02/1o?1 EXHIBIT A SCOPE OF SERVICES To provide construction management services per the attached S&C Engineers, Inc. Scope of Services dated June 12, 2006, which includes contract administration; construction inspection; construction surveying, materials testing, and burrowing owl pre-construction surveys, for the Interstate 580/Fallon Road Interchange Improvements. t, Consulting Services Agreement between City of Dublin and S&C Engineers, Inc. August 1, 2006 Page 14 of 14 June 12,2006 cJ<c21d1 , ' \ "'"~ . ^ S&C ENGINEERS, INC. Ferdinand Del Rosario, P.E. Senior Civil Engineer City of Dublin 100 Civic Plaza Dublin, California 94568 RE: Scope of Services - Construction Management Services I-5801Fallon Road Interchange Improvements projects Dear Ferd: Attached is a recommended "Scope of Services" for the Construction Management services to be provided by S&C Engineers on the I-580/Fallon Interchange Improvement Projects. As requested by the City, services to perform a pre-construction survey for burrowing owls have been added to the original scope of services as described in S&C Engineers' proposal dated July 20,2005 I would be happy to meet with you and discuss any proposed changes you feel may be appropriate. Please call me at (510) 272-2970 if you have any questions. t Sincerely, L~'- ~ames ~. Scott President II I BROADWAY i SUiTE 300 . OAKLAND. CALIFORNIA 94607 . TEL 510.272.20;70 . fAX 510.172.2972 d:3 ~~1 I 580/FALLON ROAD INTERCHANGE IMPROVEMENTS SCOPE OF SERVICES Provide construction management services including contract administration; construction inspection; construction surveying, materials testing, and burrowing owl pre-construction surveys, for the improvement project of the I 58G/Fallon Road Interchange Improvements. Phase II - Construction 1. CONTRACT ADMINISTRATION . Administration - CONSULTANT shall perform all construction administration activities, including correspondence and document control. Provide complete support services for field personnel, including office support and coordination of inspection, surveying, burrowing owl pre-construction surveys and materials testing. CONSULTANT will furnish all business equipment for CONSULTANT'S work such as computers, fax machines, furniture, and telephones; expendable supplies such as binders, pens, pencils, etc. CITY'S construction contractor will provide field office/trailer, fax and phone lines, utilities and copier at no cost to CONSULTANT. Reporting - CONSULTANT shall utilize Caltrans procedures and policies, and CITY requirements as necessary, regarding documentation of events, compilation of quantities, contractor progress payments, final payment, and record drawings. The required records pertaining to the job site staff include attendance reports and overtime records. Records involved in monitoring Contractor's contract include weekly statement of working days and monthly progress report. CONSULTANT staff members assigned to monitor the Contractor's operations will submit a daily report relating the activities of the day. Reports covering extra work shall be submitted to CITY along with Contractor's material billing when appropriate. Quantities shall be calculated as they are incorporated in the work. The most current Caltrans Construction Manual is the principal reference for CONSULTANT'S field personnel. Project Meetings - CONSULTANT shall conduct one preconstruction conference, weekly progr~ss meetings, and other project related meetings. CONSULTANT shall prepare agendas and meeting minutes. &l.{ ~.p<1 Project Submittals - CONSULTANT shall process Contractor's submittals and assure their timely review. CONSULTANT shall maintain a log to track processing of Contractor's submittals. Claims Mitigation - CONSULTANT will take steps to avoid claims on the project. In the unlikely event of claims, any claims resolution will be performed as additional services. Progress Payment - CONSULTANT shall prepare monthly progress payment requests and submit to CITY for their payment. Change Orders - CONSULTANT shall evaluate proposed change orders, coordinate changes in design with TY L1N/CCS Planning and Engineering, Caltrans, and CITY staff as appropriate. CONSULTANT shall prepare change orders and an independent cost estimat~ and schedule impact analysis. Document Tracking - CONSULTANT shall track all documents during the course . of the project. Documents to be tracked include but are not limited to all correspondence, shop drawings, test results, change orders, potential change order items, potential claims, design clarifications, photographs, etc. ,. Documentation - CONSULTANT shall document the Contractor's activities on a daily basis, conversations, and meetings related to the project, changed conditions, change orders, weather, accidents, environmental mitigation, and all other items that may be necessary for reviewing progress payments, evaluating and processing change orders, and resolving potential claims. Documentation is to include both written text and photographs. Progress photographs of the overall project are to be taken and a set included in the final project records. Design Clarification - Coordinate design clarifications with TY L1N/CCS Planning and Engineering, CITY and Caltrans as appropriate. 2. SURVEYS CONSULTANT shall provide line and grade stakes in accordance with Caltrans .. Staking Manual procedures and frequencies. 3. BURROWING OWL PRE-CONSTRUCTION SURVEY CONSULTANT shall conduct a pre-construction burrowing owl survey within 30 days prior to ground disturbing activities by the construction contractor to avoid direct take of burrowing owls. Pre-construction burrowing owl survey will be conducted in accordance with monitoring requirements of the project as determined by applicable regulatory agencies 4. INSPECTION AND TESTING rJ5 Op<1 CONSULTANT will: . Provide construction inspection, sampling and materials testing in accordance with Caltrans procedures for all project items. . Coordinate the activities of testing laboratories, surveyors and inspectors, representatives from utility companies and the administration of all project permits and utility relocations. . Coordinate with local residents, proprietors and land owners to minimize impact on construction on said parties. . Enforce labor regulations as included in contract specifications. . Maintain an up-to-date set of plans and specifications at the job site. · Review all certificates of inspections and tests. · Provide final inspection and punch list. . . Collect and check record drawing information as furnished by the Contractor and CONSULTANT, furnish "red line" drawings to the designer for preparation of record/as-built drawings. 5. POST CONSTRUCTION PHASE After acceptance of the construction contract, CONSULTANT will prepare a Construction Completion Report that will include: · Summary o(scope, cost, and schedule changes and the reason for the changes · Summary of project costs · Comprehensive Project Records (per Caltrans requirements) Cost Proposal - rJ-G ~.)! I 580IFallon Road Interchange Improvements 2160 1560 2280 220 1600 220 152 432 8624 Subtotal - S&C En ineers, Inc. Subconsultant: Materials Testing - Kleinfelder Subconsu1tant: Surveys - Chaudhary & Associates Allowance for Burrowing Owl Biologist Miscellaneous Direct Costs Subtotal - Sub consultants & Direct Costs Markup@5% TOTAL PM / Res. Engr. Bridge En 'neer Insp./Office Engr OT Senior Inspector. OT Electrical lector Clerical 8 1800 1220 1880 200 1440 200 152 8 360 40 Total Hours $ $ $ $ $ $ $ 100.00 $ 50.00 $ $ $ 100.94 $ 121.54 $ 100.94 $ 121.5~ $ 103.00 $ 51.50 309,960.00 207,558.00 228,967.20 26,668.00 161,033.60 26,668.00 15,656.00 . 22,140.00 $ 998,650.80 $ 123,682.40 $ 108,207.53 7,000.00 $ 7,500.00 $ 246 89.93 $ 12,319.50 $ 1 257 360.22 Allowance for contract extension due to weather delays (estimated at 20 days for 1 winter) $ 79,116.80 Total with contingency $ 1,336,477.02 NOTES: 1. Estimate is based on 250 working day contract and on an estimated construction start date of November 1, 2006. 2. Rates include labor, overhead, profit, cell phones, and vehicles for each employee. 3. Rates for 2007 reflect a 3% increase for wage inflation. 4. It is assumed trailer and utilities are to be provided by construction contractor. 5. Cost proposal is good for 90 days. I' I June ]2,2006 d11d 7 Cost Calculation Worksheet for Weather delays S&C Engineers 6/12/2006 I S8D/Fallon Road Interchange Improvements Days Hours 2007 2007 Position 20 per day hours Rate Cost PM/RE 20 8 160 $ 144.20 $ 23,232.00 Bridge Engineer 20 8 160 $ 133.90 $ 21,584.00 Senior Inspector 20 8 160 $ 100.94 $ 16,310.40 Insp.l Office Engr 20 8 160 $ 100.94 $ 16,310.40 Clerical 4 8 32 $ 51.50 $ 1,680.00 Total Cost = $ 79,116.80