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CITY CLERK
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: April 7, 2009
SUBJECT: Fallon Sports Park Phase I -Consultant Services for Construction
Management
Report Prepared by Rosemary Alex, Parks and Facilities
Development Coordinator
ATTACHMENTS: 1) Resolution approving an Agreement with EM Construction
Management
RECOMMENDATION: Adopt Resolution approving an Agreement with EM Construction
Management for construction management service related to the
~/ ' Fallon Sports Park Phase I.
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FINANCIAL STATEMENT: The proposed fee for services under the Agreement is $330,000.
Sufficient funds are available in the project budget.
DESCRIPTION: In December 2008, Staff solicited a Request for Proposal from six
construction management firms for the Fallon Sports Park Phase I project. At the conclusion of the
proposal period, the City had received proposals from Greystone West Company, TBI Construction
Management Inc., EM Construction Management and O'Connor Construction Management. Upon
review of the proposals, Staff interviewed the candidates that provided the qualifications most suited to
oversee the construction of Fallon Sports Park Phase I. As a result, EM Construction Management had
demonstrated in their proposal and interview the experience necessary for the project.
The scope of work for professional services includes: attend all project meetings; coordinate the work of
general contractor; maintain all project documents; and review submittals, change orders and requests for
information. The proposed costs are estimates based on the personnel and number of hours per task. The
not-to-exceed amount for the services is $330,000. The proposed Consultant Services Agreement
prepared by the City Attorney and approved by EM Construction Management is included in Attachment
1. The complete detail of the professional services is Exhibit A to the Consultant Services Agreement.
RECOMMENDATION: It is the recommendation of Staff that the City Council adopt the
Resolution approving an Agreement with EM Construction Management for construction services related
to Fallon Sports Park Phase I.
COPY TO: EM Construction Management
G:ACOUNCIL~Agenda Statements~2009\4-7 FSP CM Services.doc
Page 1 of 1
ITEM NO.
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RESOLUTION NO. - 09
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AGREEMENT WITH EM CONSTRUCTION MANAGEMENT
FOR CONSTRUCTION MANAGEMENT SERVICES RELATED TO
FALCON SPORTS PARK PHASE I
WHEREAS, the 2008-2013 Capital Improvement Program includes the Fallon Sports Park Phase
I; and
WHEREAS, in order to proceed with the project, it is necessary to secure the services of a
construction manager; and
WHEREAS, the City has received a proposal from EM Construction Management for
construction management services related to Fallon Sports Park Phase I; and
WHEREAS, the consultant is available to perform work as specified.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
approve the agreement with EM Construction Management, attached hereto and authorize the Mayor to
execute the Agreement.
PASSED, APPROVED AND ADOPTED this 7th day of Apri12009.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Mayor
City Clerk
ATTACHMENT 1
-1-
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
EM CONSTRUCTION MANAGEMENT
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
EM Construction Management ("Consultant") as of April 7, 2009.
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 July 15, 2010, 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 Assignment of Personnel. Consultant shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons,
Consultant shall, immediately upon receiving notice from City of such desire of City,
reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in 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 three
hundred and thirty thousand dollars and no cents ($330,000.00), 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
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herein. Except as specifically authorized by City, Consultant shall not bill City for duplicate services
performed by more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
Notwithstanding the "not to exceed" compensation amount in the preceding paragraph, the Contract
Administrator may authorize payment above the "not to exceed" amount to allow Consultant to provide
additional services, or, to compensate Consultant for services provided within the original scope of work in
excess of the hours specified in Exhibit A. In no event, however, shall the Contract Administrator authorize
payment of such additional payments in excess of 10% of the "not to exceed" amount.
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 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.
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2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this
Agreement within sixty (60) days after completion of the services and submittal to City of a
final invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the following fee schedule:
1) Project Manager/Principle-In-Charge $130
2) Construction Manager $129
3) Project Administrator $65
4) Scheduler/Claims Analyst $127
2.6 Reimbursable Expenses. Reimbursable expenses are specified below, and shall not
exceed one thousand and fifty-six dollars and no cents ($1,056.00). 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.
1) Postage and Delivery Expenses
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 Pavment 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
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required by this Agreement. City shall make available to Consultant only the facilities and equipment listed
in this section, and only under the terms and conditions set forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be
reasonably necessary for Consultant's use while consulting with City employees and reviewing records and
the information in possession of the City. The location, quantity, and time of furnishing those facilities shall
be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve
incurring any direct expense, including but not limited to computer, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before 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 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 aself-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 aself-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 canceled except after thirty (30)
days' prior written notice by certified mail, return receipt requested, has been given to the
City. Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits.
4.2 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)
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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. Automobile coverage shall be at least as broad as Insurance Services
Office Automobile Liability form CA 0001 Code 1 ("any auto").
4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as an endorsement to the policy:
City and its officers, employees, agents, and volunteers shall be covered
as additional insureds with respect to each of the following: liability arising
out of activities performed by or on behalf of Consultant, including the
insureds-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.
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 orself-insurance maintained by the City shall be
called upon to contribute to a loss under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the
policy shall not affect coverage provided to CITY and its officers,
employees, agents, and volunteers.
e. An endorsement shall state that coverage shall not be canceled except
after thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City. Consultant shall notify City within
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14 days of notification from Consultant's insurer if such coverage is
suspended, voided or reduced in coverage or in limits.
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall
maintain for the 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 orself-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.
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 mustbe 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.
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
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4.4.2 Verification of coverage. 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.
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
orself-insured retentions with respect to City, its officers, employees, agents, and
volunteers. The Contract Administrator may condition approval of an increase in
deductible orself-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 Coverage. 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;
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^ 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, 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) the actions of Consultant or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold 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 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.
Notwithstanding the foregoing, to the extent that this Agreement is a "construction contract" as defined in
California Civil Code section 2783, as amended from time to time, such duty to indemnify shall not apply
when to do so would be prohibited by California Code section 2782.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
payment of any penalties and interest on such contributions, which would otherwise be the responsibility of
City.
Section 6. 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 bean 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
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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.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by
fiscal assistance from another govemmental entity, Consultant and any subcontractors
shall comply with all applicable rules and regulations to which City is bound by the terms of
such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and
its employees, agents, and any subcontractors have all licenses, permits, qualifications,
and approvals of whatsoever nature that are legally required to practice their respective
professions. Consultant represents and warrants to City that Consultant and its
employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect
at all times during the term of this Agreement any licenses, permits, and approvals that are
legally required to practice their respective professions. In addition to the foregoing,
Consultant and any subcontractors shall obtain and maintain during the term of this
Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal 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.
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Consultant shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a
determination of Consultant's unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator. Consultant shall not subcontract any portion of the
performance contemplated and provided for herein, other than to the subcontractors noted
in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Consultant shall survive
the termination of this Agreement.
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;
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8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not
finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that is unfinished at the time of breach and the amount that
City would have paid Consultant pursuant to Section 2 if Consultant had
completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications,
records, files, or any other documents or materials, in electronic or any other form, that
Consultant prepares or obtains pursuant to this Agreement and that relate to the matters
covered hereunder shall be the property of the City. Consultant hereby agrees to deliver
those documents to the City upon termination of the Agreement. It is understood and
agreed that the documents and other materials, including but not limited to those described
above, prepared pursuant to this Agreement are prepared specifically for the City and are
not necessarily suitable for any future or other use. City and Consultant agree that, until
final approval by City, all data, plans, specifications, reports and other documents are
confidential and will not be released to third parties without prior written consent of both
parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this Agreement for a minimum of 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.
/~j
Consulting Services Agreement between April 7, 2009
City of Dublin and EM Construction Management Page 11 of 14
i~ a~ ~~
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to which
that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of Alameda or in the United States District Court for
the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place
Consultant in a "conflict of interest," as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 of 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
Consulting Services Agreement between April 7, 2009
City of Dublin and EM Construction Management Page 12 of 14
/gym/9
~~
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 the City Manager
("Contract Administrator"). All correspondence shall be directed to or through the Contract
Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to:
EM Construction Management
ATTN: Elia Majdalani
11 Embarcadero West, Suite 215
Oakland, CA 94607
Any written notice to City shall be sent to:
City of Dublin, Parks and Community Services
ATTN: Rosemary Alex
100 Civic Plaza
Dublin, CA 94568
10.11 Professional Seal. Where applicable in the determination of the contract administrator,
the first page of a technical report, first page of design specifications, and each page of
construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled
"Seal and Signature of Registered Professional with repod/design responsibility," as in the
following example.
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. 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.
Consulting Services Agreement between April 7, 2009
City of Dublin and EM Construction Management Page 13 of 14
is~ ~5
CITY OF DUBLIN
Tim Sbranti, Mayor
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
J:IwpdIFORMSIAGREIstandard consultant services agreement-2001.doc
Consulting Services Agreement between
City of Dublin and EM Construction Management
EM CONSTRUCTION MANAGEMENT
Elia Majdalani, Principle-in-Charge
April 7, 2009
Page 14 of 14
l 17
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MANAGEMENT APPROACH
EXHIBIT A
SCOPE OF SERVICES
L°
(n) Summary of Work Methodology
EMCM will provide Construction Management Services to the City of Dublin throughout all construction phases
of the Fallon Sports Park Phase I. Our approach will be based on construction management principles that we
previously successfully implemented for the City of Dublin at Devany Square, Bray Commons, and Emerald
Glen Park Phase III and also for the Emerald Glen Infrastructure Improvements for the County of Alameda. Our
strategy is not to take over the City's program; but rather to be an extension of the City's program. As we
understand, subsequent to the completion and approval of the construction documents by the City's consultant
Carducci & Associates Landscape Architects, the City will solicit bids, award construction contract by March 17,
2009, and schedule construction to begin on Apri16, 2009 and conclude in a twelve-month period. Our proposed
construction management tasks for Fallon Sports Park Phase I will be per the following:
A. Pre-Construction Phase Services
B. Construction Phase Services
C. Post-Construction Phase Services
(b) Methods of Management and Coordination
EMCM is prepared to provide Construction Management Services for Fallon Sports Park Phase I as follows:
A. Pre-Construction Phase Services:
• EMCM will review:
^ project construction documents and identify project elements,
^ permit and inspection requirements,
^ important project milestones,
^ project administration procedures,
^ insurances and bonds, and
^ project issues.
• EMCM will prepare a preconstruction meeting agenda and sign-up sheet. EMCM will also coordinate and
conduct the project pre-construction meeting.
B. Construction Phase Services:
• EMCM will:
^ conduct daily visits to the construction site;
^ record and report field conditions, observations, and progress of work;
^ monitor construction progress based on general contractor's project schedule, which shall be updated
on a monthly basis by the general contractor;
^ oversee the general contractor's and subcontractors' scope of work;
^ conduct weekly job site progress coordination meetings with the City's representatives, design
consultant, general contractor and other parties;
LMCM
Consulting Services Agreement between
City of Dublin and EM Construction Management--Exhibit A
April 7, 200
Page 1 of 4
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prepare meeting agendas and record project meeting minutes;
work closely with City Project Manager, City staff, design consultant, and general contractor; and
review and furnish recommendations with respect to contract correspondence and directives to be
issued to secure City's interests.
EMCM will:
• observe construction in place and report any deviations that do not comply with the construction
documents;
review construction progress with the contractor, observe completed work and confirm that on site
materials are properly stored; and
evaluate the percent completion of each construction activity as indicated in the construction schedule.
Although neither inspection nor testing services are included in EMCM's services, we will coordinate
inspections at the appropriate time and assist with providing any information to the City Departments as
required. We will also coordinate with the City's Inspectors performing code compliance and permit sign
off inspections, and coordinate and manage the City's consultants for special inspections and testing (i.e.
concrete, steel, anchors, soils compaction, etc.), keeping daily inspection logs and construction reports.
Whenever any work is unsatisfactory, faulty or does not conform to the contract documents, the
Construction Manager will review the non-compliant work with the design team and the City Project
Manager, and will advise the contractor when the work should be corrected or has been rejected, or should
be uncovered for observation, or requires special testing or inspection for approval.
EMCM will coordinate construction efforts with design consultant, contractors, and provide liaison to the
City's Project Manager. We will provide on-site coordination to assure that the project meets the plans and
specifications and stays on schedule. We will also review and evaluate the contractor's baseline schedule
line-by-line for its reasonableness, conformance, comprehensiveness and attainability, and make
recommendations for acceptance or changes. During the weekly meetings with the contractor, EMCM will
review the contractor's short-term progress and " 3-week look-ahead" schedules and the impact of work
changes. EMCM will also analyze schedule "work arounds" to bring the project back on schedule when
adversely impacted by changes and delays. Critical areas will be identified to confirm that parties, flagged
on the critical path, have been made aware of their responsibility to meet important schedule dates. We will
ensure that the City is continually aware of all schedule and cost implications.
EMCM will maintain project records and documentation control such as correspondence, submittals,
and contract documents including:
^ all contract addenda, meeting minutes, cost proposals and change orders,
^ IZFIs and clarifications,
^ Constructions Manager's daily construction reports, Inspector's reports, and contractor's daily
reports,
payment applications and certified payroll documents,
construction permits, certificates and notifications, and
operations and maintenance manuals, as-built documents and project close-out documents.
• EMCM will establish and implement procedures and develop a computerized system for logging, filing and
tracking of all project submittals, RFIs, potential change order requests, approved change orders, payment
requests and project accounting and cost reporting system. EMCM will utilize similar procedures and logs
Consulting Services Agreement between April 7, 200
EMCM City of Dublin and EM Construction Management--Exhibit A Page 2 of 4
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previously applied to Emerald Glen Park Phase III project and Devany Square project. EMCM will assist
and transmit to the contractor clarifications and interpretations of the contract documents.
EMCM has developed over the years thorough procedures to manage and evaluate change orders, whether
owner or contractor initiated. In order to avoid requests for delays,ltFIs will be processed immediately once
initiated by the contractor. We will log all requests and act as the liaison between the contractor and design
consultant. The design consultant may be asked to clarify the contract documents and provide sketches when
necessary. EMCM will keep the City informed of potential changes and make recommendations regarding
any proposed changes. All change order requests, field orders, and other submittals will be logged and
reported on a weekly basis. Key information, such as costs associated with each document and potential
time delays will be recorded with the document's general description and status. We will immediately
analyze the contractor's time delay claims and change order proposals. Our Construction Manager is well
versed in reviewing plans, specifications, contractual requirements and pricing criteria for the purpose of
evaluating change orders. We will evaluate time and cost impacts, reconcile contractor's cost proposals with
EMCM's estimates, negotiate, and make recommendations to the City for approval.
Our proposed Construction Manager for the Fallon Sports Park Phase I project has evaluated various change
order requests for many different private subdivision developments, commercial and public work projects in
the Bay Area. Our Construction Manager has negotiated change order requests successfully aiming for
fairness and reasonableness and has gained substantial cost savings for the Client.
• EMCM will review and recommend approval of contractor's monthly payment requests. We will verify
work in place against the schedule of values provided by the contractor at the beginning of the project. We
will also coordinate and expedite functions connected with the contractor's obligation to document as-built
changes on a monthly basis.
• EMCM will coordinate and schedule the required training sessions for the City Maintenance and Operation
personnel as required by the contract specifications.
EMCM will assist in preparing and monitoring punch list items. All inspection reports will be reviewed to
assure there are no outstanding issues of noncompliance. We will also coordinate all final sign-offs to verify
correction of non-compliant items and that all contract general conditions are satisfied. In conjunction with
the design consultant, we will make a determination of the remaining work necessary for "substantial
completion" and notify the contractor of any deficiencies and coordinate any required corrections. We will
make recommendations for final acceptance and payment.
C. Post-Construction Phase Services:
• EMCM will develop project closeout procedures including verification that all equipment installation
certifications, warranties, performance and maintenance bonds, operation and maintenance manuals, as-
built documents, lien releases and waivers, acceptances of final payment, release of retention and other
closeout reports and documentation, are properly executed, tendered and included in the project file. All
project files including contractor's completed as-built drawings will be provided to the City.
(c) Estimated Level of Effort
The estimated level of effort and corresponding hours by each firm and personnel for each task are detailed
in the fee proposal included in Section E under a separate sealed envelope.
Consulting Services Agreement between April 7, 20~`~-
~~~~ City of Dublin and EM Construction Management--Exhibit A Page 3 of 4
SECTION E -COST
r, ivi ~.o~irucnon ivianagement --
City of Dublin Fallon Sports Park Phase 1. Dublin. CA
Cost Proposal for Construction Management Services ,MCM
Proposal Date: 01/22/2009
Month +~ 1 2 3 4 5 6 7 d 9 tti 11 12 13
~ Month-Year Apr-09 May-09 Jun-09 .lul-09 Aug-09 Sep-09 Oct-09 Nov-09 Dec-09 Jan-10 Feb-ifl Mar-10 Apr-10
Design Phase
~ Permitting
~ Pre-Construction Phase
Construction Phase
a Post-Construction/Closeout Phase
rn
~ Hours Rer Abnth-Year
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^~ Berson Location Billing 1 2 3 4 5 6 7 d 9 10 11 12 13 TfltA1 T~'CAL
Rate r-09 Ma -09 Jun-09 Jul-09 A -09 -09 Oct-09 Nov-09 Dec-09 Jan-10 Feb-10 Mar-1O -10 ArfS FfE
~ BOR EFFORT
CM -Project Manager/Principal-In-Charge Elia Majdalani Oakland $130.00 32 32 32 40 32 40 32 32 40 40 32 40 8 432 $ 56,160
awkStone- Construction Manager Reyad Katwan San Jose $129.00 108 152 160 164 152 156 160 152 164 140 144 164 48 1,864 $ 240,456
~ awkStone -Project Administrator TBD San Jose $65.00 12 16 16 20 16 20 16 16 20 20 16 20 8 216 $ 14,040
m MGI-Scheduler/Claims Analyst Shahin Shiralian Berkeley $127.00 12 12 12 12 12 12 12 12 12 12 12 12 0 144 $ 18,288
x
o:
n UBTOTAL LABOR 164 212 220 236 212 228 220 212 236 212 204 236 64 2,656 $ 328,944
OTAL LABOR
$ 328,944
EIMBURSABLE EXPENSES
ostagelDelivery -Allowance $ 1,056
OTAL REIMBURSABLE EXPENSES $ 1,056
OTAL PROPOSED FEE ALLOWANCE $ 330,000
otes:
. PM/Principal -Allow 8 hours per week.
. CM -Allow 36 hours per week.
Project Admin -Allow 4 hours per week.
. Scheduler/Claims Analyst -Allow 8 hours per month for construction schedule review plus 48 hours for analyzing claims if required.
Postage/Delivery: Allowance for transmitting project submittals and correspondence.
Fees are applicable to services up to 365 calendar days (12 months construction duration) from April 15, 2009 through April 15, 2010.
. Contract time is through July 15, 2010.
Reserve 8 hours of Construction Manager's time for participation in Contract completion "Walk-thru" and preparation of Closeout Report after completion of maintenance period and no later than July 15, 2010.
~ ~n .Hourly rates are as shown above for the entire 12 months project duration, Daily rate for PM is $1,040; daily rate for CM is $1,032; daily rate for Project Admin is $520; daily rate for Scheduler/Claims Analyst is $1,016.
~ ~ 0. Above cost proposal is a firm offer fora 60-day period. ~`
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