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HomeMy WebLinkAboutItem 4.12 Zahn AmendAgmt CITY CLERK File # 600-30 AGENDA STATEMENT CITY COUNCIL MEETING DATE: August 6, 2002 SUBJECT: Amendment to Agreement with the Zahn Group for Construction Management Services - Various Capital Improvement Projects Report Prepared by: Lee $. Thompson, Public 19'orks Director ATTACHMENTS: 1) Resolution and Proposed Amendment, Exhibit A 2) Proposal Cost Information 3) Original Agreement RECOMMENDATION: ~ff~~Adopt resolution FINANCIAL STATEMENT: The consultant's rate scheduleis as shown with the original agreement (Attachment 3). Proposals have been provided for individual projects based on an estimate of time needed for various items of work; however, the actual cost per projeCt may vary depending on actual time spent. The proposed amendment includes a not-to-exceed amount for the five projects that are to be managed by the Zahn Group. Although the estimated costs of these services are higher than budgeted, Staffwould not request a budget increase unless and until the combinations of engineering costs and actual bid prices are projected to be over budget. DESCRIPTION: The original consulting services agreement with the Zahn Group that was approved at the July 2, 2002, City'Council meeting provided for construction management services related to Fire Stations 17 and 18. During development of the Capital Improvement Program for Fiscal Year 2002-03, Staffproposed utilizing a construction management firm for several of the building-related projects which might otherwise be delayed due to Staff time constraints. The projects proposed to be included in the scope of work are as follows: COPIES TO: Elyce Zalm, ZalmiTEMGroUPNo. /~~ o -\~.n crrrnntra C't\ ~,ahn\ a o~tarn ~,n c] ZAHN GROUP ADOPTED PROJECT NAME ESTIMATED COST BUDGET FOR PROPOSED OF SERVICES SERVICES* Civic Center HVAC Replacement $ 33,640 $18,000 Fuel Tank Renovation Phase 2 $ 6,260 $ 4,500 Civic Center Generator $ 18,435 $ 7,500 Civic Center Front Counter Remodel $ 9,740 $ 7,500 Shannon Center Deck Replacement $ 42,470 $32,095 Total: $110,545 $69,595 *Information regarding specific scopes of work for individual projects is detailed in Attachment 2. The budget indicated for individual projects does not include the cost of individual City Staff time for design or project management tasks but only the cost of contract staff or consultant time. The proposed cost of services to be provided by the Zahn Group exceeds the funds budgeted specifically for construction management; however, Staff is not requesting a budget adjustment at this time. None of these projects have been bid yet, and it is recommended that any budget adjustments be deferred until bids are received in order to determine whether there is a need for an increase. As noted in the Financial Statement, the proposed costs are estimates based on the personnel and number of hours expected to be utilized per project; the actual cost of services could vary. Staff`is proposing a total not-to-exceed amount orS116,000, which includes a 5% contingency above the total of the per- project estimates, in order to avoid having to return to the City Council for minor cost changes. The Zahn Group's scope of work includes, but is not limited to, constructability review of plans and specifications and design services to produce plans and specifications which can be successfully constructed. The construction management staff wil! provide daily inspections of the work in progress to ensure a quality work product. Staff`recommends that the City Council adopt the resolution approving the amendment to the agreement. RESOLUTION NO. - 02 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AMENDMENT TO AGREEMENT WITH THE ZAHN GROUP, INC. WHEREAS, the City of Dublin, State of California, entered into an agreement for construction management services with the Zahn Group, Inc., on July 2~ 2002; and WHEREAS, the City wishes to modify the scope of work in said agreement to include additional projects; and WHEREAS, said modification of scope requires an adjustment of comPensation; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the amendment to the agreement with the Zahn Group, Inc., which is attached hereto as "Exhibit A." PASSED, APPROVED AND ADOPTED this 6th day of August~ 2002° AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Glengrizahn~reSoamend8-6-02 EXHIBIT "A" OF RESOLUTION -02 AMENDMENT TO AGREEMENT BETWEEN CITY OF DUBLIN AND THE ZAHN GROUP, INC. FOR CONSTRUCTION MANAGEMENT SERVICES WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and the Zahn Group, Inc. (hereinafter referred to as "CONSULTANT"), entered into 'an agreement on July 2, 2002, to provide construction management services to CITY; and WHEREAS, the City wishes to revise the scope of services to include additional projects; and WHEREAS, the change in scope of services requires a change in compensation; NOW, THEREFORE, the parties hereto agree as follows: 1) The scope of services shall be revised to include the following projects: Civic Center HVAC Replacement, Civic Center Generator, Front Counter Remodel, Fuel Tank Upgrade Phase 2, and Shannon Center Deck Replacement and Exterior Painting. 2) The compensation for services related to the projects listed above shall be on a time and materials basis as per the original rate schedule, with a total not to exceed $ ! 16,000. CITY OF DUBLIN Mayor ATTEST: City Clerk THE ZAHN GROUP, INC. Date: G:~Engr-contracfizahn group\amendment 8-6-02.doc Dublin "On-Call" Summary Sheet Zahn Group Proposal as of July 26, 2002 ZG Proposed Project # Description Fee 93935 HVAC Replacement 33,640.00 93172 Fuel Tank 6,260.00 93933 Civic Center Generator 18,435.00 None Civic Center Counter Upgrade 9,740.00 None Shannon Center 42,470.00 110,545.00 Project 93935 HVAC Replacement Zahn Group Proposal as of July 25, 2002 Task Description __P r~oj er__..c_t .?j..r~c.t9 .r" ..... ~Q~g~_e_[ ...... Man. _~g.~.r__._ Clerical t 145.00 135.00 105.00 50.00 A Coordinate plans 40.00 B Complete specifications prepared by others .......... 16.00 C Prepare bid package ..................................................................... ..... 16.00 4.00 D Bid market 4.00 E Attend bid op_~.~.i.~ and analyze bid 1.0~' 1.00 F Prepare for and lead kick-off meeting 2.00 2.00 1.00 G '~ Daily inspection for quality control 8.00 80.~ 16.00 Lead and prepare meeting minutes for all H weekly meetings 16.00 8.00 I : Prepare monthly report J effoKs 8.0. _ .0~ 16.00 K .S et- U.~.~Lai~n_i n_g_.m~ ~tj~ ~.~s 8.00 2.00 Prepare warranty and operations manual L package for Owner 2.00 16.00 8.00 M Prepare final close-out documents 4.00 N -~i~,~'~'~'' 8.00 8.00 16.00 !Sub-Total per Person 1,160.00 13,635.00 16,695.00 2,150.00 Project 93172 Fuel Tank Zahn Group Proposal as of July 25, 2002 'i' Senior Construction Construction I Task Description ~,.r.£j_e_c~ p ,i [.e ct~ £ _._M an~gr ........ Man~,~.i Cledcal 4 .oo lO .OO__ o.oo B pr ~,.~ ~g~ ......................................................... . 4.00 C Bid market D A~end bid opening and an~_~ ~i~ ..... 1.00 E Prepare for and lead kick-off mee~ng F D~i'~"i~ ~e~'~'i~'~'-{0 r q'u~ii~- ~ on~r0i ........................................ 1~~ 4.00 Lead and prepare meeting minutes for all G we~l~.~.m~9~ n~g~ ................................................................... 2.00 Prepare punchlist and ovemee corre~onal effo~ 4.00 1.0C J Prepare final close*out documen~ 4.00 4.00 Sub-Total per P~mon 1,160.00 0.0 4,200.00 900.00 Project 93933 Civic Center Generator Zahn Group Proposal as of July 25. 2002 Senior Construclion Construction Task Descri.ption Project Director Manage_!~ ....... Ma_ .na~g~e_~- Clerical 145.00 135.00 105.00 50.00 A D~ n~.a,,,s~_h,z ~,~!,~,.s,, ~ ,r~ ,~!an~~ ....................................... 16.00 B Prepare specification for trash enclosure 8.00 2.00 Draft final electrical plan for finalization by C "others" 8.00 Draft specifications for electrical and generator D installation 8.00 4.00 E Prepare bid package 4.00 4.00! .. G_ _ Attend bid opening and analyze bid 1.00 1.00 H P r,e_ ~ a r,_,_e_.,f_o.r_a_n~,d .!ea,~ ~k) c ~;~ff~,~. ,,e~, .n.,~g' ................... 2.00 2.00 I D.~a. il.,~,y~.,~ig,.s~cti,_~,~_,f,,0~r,.~.,u,~ I_'~ ~ _n~rp! .................. 1.00 24.00 . Lead and prepare meeting minutes for all j I weekly meetings 4.00 ~ Prepare punchlist and oversee correctional L ; efforts 4.00 4.00 . N Prepare flngl_~lose?ut ~o~.~m~nts 2.00 4.00 2.00 P ,~e_t!9 ~ _s_~..h__.¢_W.~ ~ !~ 8.00 16.00 16.00 Sub-Total per Person 1,160.00 9,990.00 5,985.00 1,300.00 _ZG Pro.~_P_~,s~d_~F~9,,e, ................................................................ 18,435.00 ............ Project # Civic Center Counter Upgrade Zahn Group Proposal as of July 25, 2002 ............................................................................................... [ ............................... Senior .............................................................. Construction Construction Task Description 1 Prp~ject Director ._ Ma~a_~g~£.__. Manager Clerical 145.00 135.00 105.00 50.00 V B Coordinate supplier 4.00 C P_.E~.p.. ar. e_ ~..n.~ ~j.. f_o .r,..i ~tg!l.~ip.n_ ........................ 4.00 D __D a~Ly,.!n.s p~.c__ti..o. ~ ~9_~ q u a I_ i~,,~,9 ~t.r..o,J ........................ 8.00 2.00 Prepare punchlist and oversee correctional ] ~ efforts 2.00 8.00 1.00 E ~..~Pr~.e.,pare final report ...................... G Meetings with Owner 8.00 8.00 1 Sub-Total per_ _~,[S...o~ ....................................................... 1,160.00 6,750.00 1,680.00 ~ 50.00 ! ZG Proposed Fee 9,740.00 ~ Project # Shannon Center Zahn Group Proposal as of July 25, 2002 Task Description Project Director Manager _.~Man~[ Clerical 145.00 135.00 105.00 50.00 A Design plans and prepare specifications 120.00 B M e e_t i~_s. _.w~.~'_t~.. ~ '~_~'y_ 36.00 24.00 4.00 C ~Prepare bid package 8.00 8.00 4.0(: D i Bid market 8.00 2.00 E , Attend bid opening and aqalyze bid 2.00 2.00 1.00 F jPrePar~.~o?,an~!ea~kigk-.~_offmeetin__g ................... 2.00 2.00 G i Daily inspection for quality control 12.00 60.00 4.00 Lead and prepare meeting minutes for all H ' we e kly~ e.~._~.t.!.n..g.~_ ......................................................................... 24.00 8.00 I ~Prepare monthly report ~ Prepare punchlist and oversee correctional J ~ffo r~ ~ 4.00 8.01 4.00! K , Pre,are ~v'-~~~ ....... 8.00! 'Sub-Total per Person 1,160.00 24,840.00 . 1,350.00 !ZG Proposed Fee 42,470.00* CONSULTING SERVICES AGREEMENT BETWEEN *THE CITY OF DUBLIN AND THE ZAHN GROUP, INC. THIS AGREE,M, ENT for consulting~?vices is_ made by and between the City of Dublin ('City") and the Zahn Group, Inc. (Consultant') as of~,.-,/~/,-'/ ~ . 2002. 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 upon comptetion Of the Dublin Fire Sta§ons 17 & 18, and Consultant shall complete the work described in Exhibit A on or prior to that time, unless the term of the Agreement is otherwise te~inated or extended, as provided for in Section §. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's dght to terminate the Agreement, as provided for in Section 8. '1.2 Standard of Performance. Consultant shall perform all services required pursuan!.to this Agreement in the manner and according to the standards observed by a cor~petent 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 or~ly competent personnel to perform services pursuant to this Agreement. In the evenHhat 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 pen~ormance 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 hereunderl Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $273,545.00, 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 Exhibits A and B, 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 the Zahn Group ' 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; i,e., Progress Bill No. 1 for the first inVoice, etc,; · The beginning and ending dates of the billing period; · A Task Summary containing the 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 ~vork, 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.~; · 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 Final Payment. City shall pay the last 10% ol= the total sum due pursuant to this Agreement within sixty (60) days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed. 2.4 Total PaYme_nt. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. Except for the compensation for services rendered and reimbursable expenses payable under this Section 2, City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group Page 2 of 14 SC. OPE OF SERVI,.CES Pre-cons~uction~icl/Award Phase 7/02-8/02 $ 48,500 Construction Phase 8/02-9/03 $206,005 Post Construction Phase 10/03 $ 13.040 Reimbursable Costs $ _6.000_ ~ Total: $273,545 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. ;2,5 ~ Fees for work performed by Consultant on an hourly basis shall not exceed the amoUnts shown on Attachment B: 2.6 Reimbursable Expensss. Reimbursable expenses are specified below, and shall not exceed six thousand dollars ($6000.00). Expenses not listed below 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 in order to verify costs incurred to that date. 2.9 Authorization to Perform serVices, The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. SectiOn 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services · required by this Agreement, City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall 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. Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group Page 3 of 14 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. 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 ali persons employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employers 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 dghts 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 canceled except after thirty (30) days' pdor wdtten notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspendedl voided or reduced in .coverage or in limits. 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, Consulting Services Agreement between July 2002 City ol= Dublin and the Zahn Group Page 4 of 14 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 covera!:le. Commercial general coverage shall be at least as broad as Insurance Se~ces Office Commercial General Uability occurrence form CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1/73) covedng 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 8 and 9 ("any auto"). No endorsement shall be attached limiting the coverage. 4.2.3 Additional requirements. Each of the following shall be included in the insurance-coverage or added as an endorsement to the policy: a. City and its officers, employees, agents, and volunteers shall be cdvered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents; or volunteers, b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance 'maintained by the City shall be called upon to contribute to a loss under the coverage. d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall not affect coverage provided to CITY and its officers, \, employees, agents, and volunteers. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits, Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group Page 5 of 14 4.3 Professional Liability 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 Agreement 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 wdtten notice by certified mail, return receipt requested, has been given to the City. 4.3.3 The policy must contain a cross liability or severability of interest clause, 4.3.4 The following provisions shall apply if the professional liability coverages are wdtten 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 Commemially 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 Accept. ability of insurers, All insurance required by this section is to be placed with insurers with a BeSts' rating of no less than A:VII. · b ' 'n 4,4,2. Verification of coveraae. Prior to eg~nm g 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 Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group Page 6 of 14 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 ui~der 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 othen,~ise fully protected. 4,4,5 Deductibles and Self-Insured 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 a'n 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 CoveraRe. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City maY have and are not the exclusive remedy for Consultant's breach: · Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; · Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant.demonstrates compliance with the requirements hereof; and/or' Consulting Services Agreement' between July 2002. City of Dublin and the Zahn Group Page 7 of 14 · Terminate this Agreement. Section 5. INDEMNIFICAT!QN AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and VOlunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omiSSions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) Ihe actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, bss of life, damage to property, or 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 Califomia 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 clau~ shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply, By execution of this Agreement, Consultant acknowledges and agrees, to lhe provisions of this'Section and that it is a material element of consideration. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agi'eement 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, orsubcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of C ty. 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 r~ght 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 anyother 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. Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group Page 8 of 14 6.2 Consultant No A_clant. 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 REQUIREM, ENTS. 7.1 Governin; Law. The laws of the State of Calil'omia 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. 7.3 Other Governmental Regulstions. 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 Cohsultant and. its employees, agents, and any subcontractors have all licenses, permits, qu. alifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its . employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, onthe 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 appr0~,ed by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group Page 9 of 14 · 8.1 Terrain. etlon. City may cancel this Agreement at any time and without cause upon written notification to Consultant. · Consultant may cancel this Agreement upon fifteen (15) 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 ConsiJItant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepamcl 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 Su .Ix~..0ntrac..t.!n¢l.. 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. NI 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 by 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; Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group Page 10 of 14 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 Consulta.n...t'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 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 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enfome 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 Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group Page 11 of 14 \ that party 'may be entitled, The court may set such fees in the same action or in a separate action brought for that purpose, f .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. ~11),3Severability: 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 rome 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. ~. 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 lflat term or any other term of this Agreement. 10,5 Successors and Assi_clns, 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 InteresL 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, Consulting Services Agreement between . July 2002 City of Dublin and the Zahn Group Page 12 of 14 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or ~nterview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by Herma Lichtenstein; Parks & Facilities Development Manger ('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: Eiyce R. Zahn, President The Zahn Group, Inc. 625 Market Street, 14"~ floor San Francisco, CA 94105 Any written notice to City shall be sent to: Herma Lichtenstein, Parks & Facilities Development Manger City of Dublin 100 Civic Plaza Dublin, CA 94568 10.11 Inteeration. This Agreement, including the scope of work attached hereto and incorporated 'herein as Exhibits A and B, 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 CONSULTANT Janet pkh~rt, Mayor El The Zahn Group, Inc. Attest: IN Approved as [o Form: [NAI~ City Attorney o.,~' Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group Page 13 of 14 .. EXHIBIT A SCOPE OF SERVICES SOO ,P.E OF SERVICES Pre. constructio~fBid/Award Phase 7/02-8/02 $ 48,500 Construction Phase 8/02-9/03 $206,005 Post Construction Phase 10/03 $ 13,040 Reimbursable Costs $ 6 000 Total: $273,$4~ Pre-Construction Phase (assume 2 concurrent months for each project) $ 40,000 - Prepare one constructability review of plans and specs for each project - Make recommendations which may be incorporated into plans and specs for project - Develop a preliminary plan and schedule for construction and compare to Architect's schedule - Analyze one or two cost estimates provided by Architect - One back-check constructability review for each project - Value engineering Bidding Phase (assume 1 month each project) $. 6,000 - Coordinate architects, contractors, professionals and other consultants - Review bids, schedule, and materials breakdowns submitted by bidders - Participate in conferences and render advice to Owner Construction Phase (assumes 12 months for Station 17 and 10 months for Station 18) ' $206,005 - Attend site meetings and prepare meeting minutes for distribution; liaison with City Manager (or City Representative) weekly - Coordinate the efforts of the Architect and Contractor, and provide liaison to the City - Analyze recommendations from Contractor, Architect, and/or other Professionals who could improve the Project or diminish construction time and/or costs - Review, evaluate, and furnish recommendations regarding Contractor's performance - Perform periodic inspections'of Project as deemed necessary to verify: 1) materials and labor being furnished are according to plans and specifications; 2) work being billed for each payment requested is completed in accordance with the plans and specifications; 3) Contractor time schedule is being maintained, as shown on attachment to the Construction Contract; and 4) costs are in line with the Owner's budget - Assist with calling for inspections - Review submittals from Contractor and advise Owner - Analyze recommendations from Contractor, Architect, and/or other Professionals who could improve the Project or diminish construction time and/or costs - Track all preliminary lien notices - Track all necessary conditional and unconditional liens - Review all change orders requested by Contractor and advise Owner - Review and make recommendations on all Pay Requests pursuant to Contract -- Identify possible payment defaults on part of Contractor, Subcontractors andlo~ Material Suppliers -- Provide monthly accounting and Project Status Reports Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group-Exhibit A Page 1 of 2 Close-Out (assume 1 month per project) .. $13,040 - Coordinate and assist Amhitect in punchlist preparation and scheduling the completion of all corrective work and advise Owner - Prepare close-out report. - Coordinate and assemble all warranties and guarantees as required by Contract Documents and submit to Owner - Coordinate contractor preparation of record drawings... - Consolidate all project files and documents for submittal to City Additional Services (not covered by this contract) - Develop, assemble, and submit documentation required to support the Owner's position in the resolution of Contractor's claims, if necessary - Other activities as requested by Owner - Development of front end specifications Reimbursable Expenses ~ - Long distance telephone calls - Messenger and delivery services - Travel outside of Alameda County Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group-Exhibit A Page 2 of 2 EXHIBIT B coMPENSATION sCHEDULE Position Hourly Rate ' F~ i~,¢ipal-ln-Charge $150.00 ~Project Director $145.00 Senior Construction Manager .$.! 35.00 Senior Constructability Reviewer $125.00 Construction Manager $105.00 Constructabiiity Reviewer $95.00 Project Coordinator $65.00 Administrative Assistant $50.00 Consulting Services Agreement between July 2002 City of Dublin and the Zahn Group-Exhibit B Page 1 of 1