HomeMy WebLinkAboutReso 03-2018 (17-766)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
' Resolution: RES 03 -2018
File Number: 17 -766 Enactment Number: RES 03 -2018
RESOLUTION AUTHORIZING THE CITY MANAGER TO
APPROVE A CONSULTING SERVICES AGREEMENT WITH BIGGS
CARDOSA ASSOCIATES INC., OF SAN JOSE, CALIFORNIA FOR
CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
FOR THE SOUTH AIRPORT BRIDGE REPLACEMENT PROJECT
(PROJECT NO. ST1301) IN AN AMOUNT NOT TO EXCEED
$560,411, FOR A TOTAL CONSTRUCTION MANAGEMENT
BUDGET OF $616.452.
WHEREAS, the South Airport Bridge Replacement Project ( "Project ") will replace the bridge at North
Access Road and I -380 on -ramp; and
WHEREAS, the City with the assistance of The California Department of Transportation (Caltrans) has
been successful in obtaining funding from the Federal Highway Administration (FHWA) for the
Project's new design and construction costs; and
WHEREAS, staff issued a Request for Proposals (RFP) through eBidboard for construction management
services for the Project in June 2017; and
WHEREAS, responses to the RFP were received on August 17, 2017, from four (4) firms: K &B
Construction Services, Inc., Caltrop/TRC Solutions, Zoon Engineering and Biggs Cardosa Associates,
Inc. ( "Biggs Cardosa "); and
WHEREAS, interviews were held with all four firms on November 8, 2017; and
WHEREAS, the interview panel consisted of members of City staff from the Public Works Department:
Sam Bautista, Principal Engineer; Richard Cho, Senior Civil Engineer; Matt Ruble, Senior Civil
Engineer; Patrick Caylao, Associate Civil Engineer and Abby Partin, Laboratory Supervisor; and
WHEREAS, the selection panel members concluded that Biggs Cardosa was the best qualified firm to
provide the construction management and inspection services for this project, based on both proposal
and interview; and
WHEREAS, Biggs Cardosa worked directly with the City on several projects including Value
Engineering for the Oyster Point Flyover, Hickey Boulevard Special Inspections, Old Fire Station #61,
Municipal
City of South San Francisco Page 1
File Number: 17 -766 Enactment Number. RES 03 -2018
Services Building Seismic Evaluation and Retrofit and On -Call Testing Services on Capital
Improvement Projects; and
WHEREAS, when analyzing Biggs Cardosa's proposal and fee schedule, their cost of construction
management and inspection services is approximately 8.5 percent, which is within the industry standard
range of 8 to 10 percent of construction costs.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San Francisco that
the City Council hereby approves a consulting services agreement, attached herewith as Exhibit A, for
construction management and inspection services for the South Airport Bridge Replacement Project
(Project No. st1301) in an amount not to exceed $560,411 and authorizing a total construction
management budget of $616,452 conditioned on Biggs Cardosa Associates Inc.'s timely execution of the
consultant services agreement and submission of all required documents, including but not limited to,
certificates of insurance and endorsements, in accordance with the Project documents.
BE IT FURTHER RESOLVED that the City Council of the City of South San Francisco authorizes the
Finance Department to establish the Project Budget consistent with the information contained in the staff
report.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the agreements
and any other related documents on behalf of the City upon timely submission by Biggs Cardosa
Associates Inc. signed contract and all other documents, subject to approval by the City Attorney.
At a meeting of the City Council on 1/10/2018, a motion was made by Pradeep Gupta, seconded by Richard
Garbarino, that this Resolution be approved. The motion passed.
Yes: 5 Mayor Normandy, Councilmember Garbarino, Vice Mayor Matsumoto,
Councilmember Gupta, and Councilmember Addiego
Attest y
ksta4ane3li/
City of South San Francisco Page 2
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND
BIGGS CARDOSA ASSOCIATES, INC.
THIS AGREEMENT for consulting services is made by and between the City of South
San Francisco (“City”) and Biggs Cardosa Associates, Inc. (“Consultant”) (together sometimes
referred to as the “Parties”) as of December 13, 2017 (the “Effective Date”).
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement,
Consultant shall provide to City the services described in the Scope of Work attached hereto and
incorporated herein as Exhibit A, at the time and place and in the manner specified therein. In
the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A,
the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date
and shall end on December 31, 2019, the date of completion specified in Exhibit
A, and Consultant shall complete the work described in Exhibit A on or before
that date, unless the term of the Agreement is otherwise terminated or extended,
as provided for in Section 8. The time provided to Consultant to
complete the services required by this Agreement shall not affect the City’s right
to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all work 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 Sections 1.1 and 1.2 above and to satisfy Consultant’s
obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed
Five Hundred Sixty Thousand Four Hundred Eleven Dollars ($560,411), 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, or Consultant’s compensation
schedule, attached as Exhibit 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 in writing, Consultant shall not bill City for duplicate services performed by more than one
person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under
this Agreement is based upon Consultant’s estimated costs of providing the services required
hereunder, including salaries and benefits of employees and subcontractors of Consultant.
Consequently, the Parties further agree that compensation hereunder is intended to include the
costs of contributions to any pensions and/or annuities to which Consultant and its employees,
agents, and subcontractors may be eligible. City therefore has no responsibility for such
contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once per month
during the term of this Agreement, based on the cost for all services performed
and reimbursable costs incurred prior to the invoice date. Invoices shall contain
all 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
each employee, agent, and subcontractor of Consultant performing
services hereunder;
Consultant shall give separate notice to the City when the total number of
hours worked by Consultant and any individual employee, agent, or
subcontractor of Consultant reaches or exceeds eight hundred (800) hours
within a twelve (12)-month period under this Agreement and any other
agreement between Consultant and City. Such notice shall include an
estimate of the time necessary to complete work described in Exhibit A
and the estimate of time necessary to complete work under any other
agreement between Consultant and City, if applicable.
The amount and purpose of actual expenditures for which reimbursement
is sought;
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 thirty (30) days from the receipt of an invoice that
complies with all of the requirements above to pay Consultant. Each invoice shall
include all expenses and actives performed during the invoice period for which
Consultant expects to receive payment.
2.3 Final Payment. City shall pay the five percent (5%) 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 compensation schedule attached hereto and
incorporated herein as Exhibit B.
2.6 Reimbursable Expenses. The following constitute reimbursable expenses
authorized by this Agreement: mileage, parking, tolls, printing, out of area travel,
conference calls, postage, express mail, and delivery. Reimbursable expenses
shall not exceed five thousand dollars ($5,000). Expenses not listed above are not
chargeable to City. Reimbursable expenses are included in the total amount of
compensation provided under Section 2 of this Agreement that shall not be
exceeded.
2.7 Payment of Taxes; Tax Withholding. Consultant is solely responsible for the
payment of employment taxes incurred under this Agreement and any similar
federal or state taxes. To be exempt from tax withholding, Consultant must
provide City with a valid California Franchise Tax Board form 590 (“Form 590”),
as may be amended and such Form 590 shall be attached hereto and incorporated
herein as Exhibit D. Unless Consultant provides City with a valid Form 590 or
other valid, written evidence of an exemption or waiver from withholding, City
may withhold California taxes from payments to Consultant as required by law.
Consultant shall obtain, and maintain on file for three (3) years after the
termination of this Agreement, Form 590s (or other written evidence of
exemptions or waivers) from all subcontractors. Consultant accepts sole
responsibility for withholding taxes from any non-California resident
subcontractor and shall submit written documentation of compliance with
Consultant’s withholding duty to City upon request.
2.8 Payment upon Termination. In the event that the City or Consultant terminates
this Agreement pursuant to Section 8, the City shall compensate the Consultant
for all outstanding costs and reimbursable expenses incurred for work
satisfactorily completed as of the date of written notice of termination.
Consultant shall maintain adequate logs and timesheets to verify costs incurred to
that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform
any services or incur any costs whatsoever under the terms of this Agreement
until receipt of authorization from the Contract Administrator.
2.10 False Claims Act. Presenting a false or fraudulent claim for payment, including
a change order, is a violation of the California False Claims Act and may result in
treble damages and a fine of five thousand ($5,000) to ten thousand dollars
($10,000) per violation.
2.11 Prevailing Wage. Where applicable, the wages to be paid for a day's work to all
classes of laborers, workmen, or mechanics on the work contemplated by this
Agreement, shall be not less than the prevailing rate for a day’s work in the same
trade or occupation in the locality within the state where the work hereby
contemplates to be performed as determined by the Director of Industrial
Relations pursuant to the Director’s authority under Labor Code Section 1770, et
seq. Each laborer, worker or mechanic employed by Consultant or by any
subcontractor shall receive the wages herein provided for. The Consultant shall
pay two hundred dollars ($200), or whatever amount may be set by Labor Code
Section 1775, as may be amended, per day penalty for each worker paid less than
prevailing rate of per diem wages. The difference between the prevailing rate of
per diem wages and the wage paid to each worker shall be paid by the Consultant
to each worker.
An error on the part of an awarding body does not relieve the Consultant from
responsibility for payment of the prevailing rate of per diem wages and penalties
pursuant to Labor Code Sections 1770 1775. The City will not recognize any
claim for additional compensation because of the payment by the Consultant for
any wage rate in excess of prevailing wage rate set forth. The possibility of wage
increases is one of the elements to be considered by the Consultant.
a. Posting of Schedule of Prevailing Wage Rates and Deductions. If the
schedule of prevailing wage rates is not attached hereto pursuant to Labor Code
Section 1773.2, the Consultant shall post at appropriate conspicuous points at the
site of the project a schedule showing all determined prevailing wage rates for the
various classes of laborers and mechanics to be engaged in work on the project
under this contract and all deductions, if any, required by law to be made from
unpaid wages actually earned by the laborers and mechanics so engaged.
b. Payroll Records. Each Consultant and subcontractor shall keep an
accurate payroll record, showing the name, address, social security number, work
week, and the actual per diem wages paid to each journeyman, apprentice,
worker, or other employee employed by the Consultant in connection with the
public work. Such records shall be certified and submitted weekly as required by
Labor Code Section 1776.”
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall,
at its sole cost and expense, provide all facilities and equipment that may be necessary to
perform the services required by this Agreement. City shall make available to Consultant only
the facilities and equipment listed in this section, and only under the terms and conditions set
forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may
be reasonably necessary for Consultant’s use while consulting with City employees and
reviewing records and the information in possession of the City. The location, quantity, and time
of furnishing those facilities shall be in the sole discretion of City. In no event shall City be
obligated to furnish any facility that may involve incurring any direct expense, including but not
limited to computer, long-distance telephone or other communication charges, vehicles, and
reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this
Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall
procure the types and amounts of insurance listed below against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work
hereunder by the Consultant and its agents, representatives, employees, and subcontractors.
Consistent with the following provisions, Consultant shall provide proof satisfactory to City of
such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects, and that such insurance is in effect prior to beginning work 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). Consultant shall
maintain all required insurance listed herein for the duration of this Agreement.
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 $1,000,000 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, as defined in Section 10.9. 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.
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) 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 or GL 0002 (most recent editions) covering
comprehensive General Liability Insurance and Services Office form
number GL 0404 covering Broad Form Comprehensive General Liability
on an “occurrence” basis. Automobile coverage shall be at least as broad
as Insurance Services Office Automobile Liability form CA 0001 (most
recent edition). No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis,
and not on a claims-made basis.
b. 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.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability
insurance for 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.
Any deductible or self-insured retention shall not exceed ONE
HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000) per claim.
4.3.2 Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be
before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after completion of the
Agreement or the work, so long as commercially available at
reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that
precedes the date of this Agreement, Consultant shall purchase an
extended period coverage for a minimum of five (5) years after
completion of work under this 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 for review prior to the commencement of any work under
this Agreement.
4.3.3 Additional Requirements. A certified endorsement to include contractual
liability shall be included in the policy
4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be
placed with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coverage. Prior to beginning any work under this
Agreement, Consultant shall furnish City with complete copies of all
policies delivered to Consultant by the insurer, including complete copies
of all endorsements attached to those policies. All copies of policies and
certified endorsements shall show the signature of a person authorized by
that insurer to bind coverage on its behalf. If the City does not receive the
required insurance documents prior to the Consultant beginning work, this
shall not waive the Consultant’s obligation to provide them. The City
reserves the right to require complete copies of all required insurance
policies at any time.
4.4.3 Notice of Reduction in or Cancellation of Coverage. A certified
endorsement shall be attached to all insurance obtained pursuant to this
Agreement stating that coverage shall not be suspended, voided, canceled
by either party, or 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. In the event that any coverage required by this
section is reduced, limited, cancelled, 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 ten (10) working
days after Consultant is notified of the change in coverage.
4.4.4 Additional insured; primary insurance. 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 City’s general
supervision of Consultant; products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by
Consultant; and automobiles owned, leased, or used by the Consultant in
the course of providing services pursuant to this Agreement. The coverage
shall contain no special limitations on the scope of protection afforded to
City or its officers, employees, agents, or volunteers.
A certified endorsement must be attached to all policies stating 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.
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. Further, if the Consultant’s insurance policy
includes a self-insured retention that must be paid by a named insured as a
precondition of the insurer’s liability, or which has the effect of providing
that payments of the self-insured retention by others, including additional
insureds or insurers do not serve to satisfy the self-insured retention, such
provisions must be modified by special endorsement so as to not apply to
the additional insured coverage required by this agreement so as to not
prevent any of the parties to this agreement from satisfying or paying the
self-insured retention required to be paid as a precondition to the insurer’s
liability. Additionally, the certificates of insurance must note whether the
policy does or does not include any self-insured retention and also must
disclose the deductible.
During the period covered by this Agreement, only upon the prior express
written authorization of Contract Administrator, Consultant may increase
such deductibles or self-insured retentions with respect to City, its officers,
employees, agents, and volunteers. The Contract Administrator may
condition approval of an increase in deductible or self-insured retention
levels with a requirement that Consultant procure a bond, guaranteeing
payment of losses and related investigations, claim administration, and
defense expenses that is satisfactory in all respects to each of them.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified
endorsements for each subcontractor. All coverages for subcontractors
shall be subject to all of the requirements stated herein.
4.4.7 Wasting Policy. No insurance policy required by Section 4 shall include a
“wasting” policy limit.
4.4.8 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverage, scope, limits, and
forms of such insurance are either not commercially available, or that the
City’s interests are otherwise fully protected.
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:
a. Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under the Agreement;
b. 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
c. Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES. To
the fullest extent permitted by law, Consultant shall, to the fullest extent allowed by law, with
respect to all Services performed in connection with this Agreement, 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
(“Claims”), to the extent caused, directly or indirectly, in whole or in part, by the willful
misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or
agents. 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 gross 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.
5.1 Insurance Not in Place of Indemnity. 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.
5.2 PERS Liability. 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.
5.3 Third Party Claims. With respect to third party claims against the Consultant,
the Consultant waives any and all rights of any type of express or implied
indemnity against the Indemnitees.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement,
Consultant shall be an independent contractor and shall not be an employee of
City. City shall have the right to control Consultant only insofar as the results of
Consultant's services rendered pursuant to this Agreement and assignment of
personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services
rendered pursuant to this Agreement. Notwithstanding any other City, state, or
federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and
any of its employees, agents, and subcontractors providing services under this
Agreement shall not qualify for or become entitled to, and hereby agree to waive
any and all claims to, any compensation, benefit, or any incident of employment
by City, including but not limited to eligibility to enroll in the California Public
Employees Retirement System (PERS) as an employee of City and entitlement to
any contribution to be paid by City for employer contributions and/or employee
contributions for PERS benefits.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant
shall have no authority, express or implied, to act on behalf of City in any
capacity whatsoever as an agent 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 federal, state and local laws and regulations applicable to the
performance of the work hereunder. Consultant’s failure to comply with such
law(s) or regulation(s) shall constitute a breach of contract.
7.3 Other Governmental Regulations. To the extent that this Agreement may be
funded by fiscal assistance from another governmental entity, Consultant and any
subcontractors shall comply with all applicable rules and regulations to which
City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that
Consultant and its employees, agents, and any subcontractors have all licenses,
permits, qualifications, and approvals, including from City, 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.
Consultant shall include the provisions of this Subsection in any subcontract
approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause
upon written notification to Consultant.
Consultant may cancel this Agreement for cause upon thirty (30) days’ written
notice to City and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for
services performed to the effective date of notice of termination; City, however,
may condition payment of such compensation upon Consultant delivering to City
all materials described in Section 9.1.
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 Consultant to execute 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 assign or 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 include, but not be limited to,
the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and
any other work product prepared by Consultant pursuant to this
Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A
not finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that is unfinished at the time of breach and the
amount that City would have paid Consultant pursuant to Section 2 if
Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data,
maps, models, charts, studies, surveys, photographs, memoranda, plans, studies,
specifications, records, files, or any other documents or materials, in electronic or
any other form, that 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 except as required by law.
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 ($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.
9.4 Records Submitted in Response to an Invitation to Bid or Request for
Proposals. All responses to a Request for Proposals (RFP) or invitation to bid
issued by the City become the exclusive property of the City. At such time as the
City selects a bid, all proposals received become a matter of public record, and
shall be regarded as public records, with the exception of those elements in each
proposal that are defined by Consultant and plainly marked as “Confidential,”
"Business Secret" or “Trade Secret."
The City shall not be liable or in any way responsible for the disclosure of any
such proposal or portions thereof, if Consultant has not plainly marked it as a
"Trade Secret" or "Business Secret," or if disclosure is required under the Public
Records Act.
Although the California Public Records Act recognizes that certain confidential
trade secret information may be protected from disclosure, the City may not be in
a position to establish that the information that a prospective bidder submits is a
trade secret. If a request is made for information marked "Trade Secret" or
"Business Secret," and the requester takes legal action seeking release of the
materials it believes does not constitute trade secret information, by submitting a
proposal, Consultant agrees to indemnify, defend and hold harmless the City, its
agents and employees, from any judgment, fines, penalties, and award of
attorneys’ fees awarded against the City in favor of the party requesting the
information, and any and all costs connected with that defense. This obligation to
indemnify survives the City's award of the contract. Consultant agrees that this
indemnification survives as long as the trade secret information is in the City's
possession, which includes a minimum retention period for such documents.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a Party to this Agreement brings any action, including
arbitration or 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 San Mateo 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,
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 (12) months, Consultant warrants that it did not participate in any
manner in the forming of this Agreement. Consultant understands that, if this
Agreement is made in violation of Government Code §1090, et seq., the entire
Agreement is void and Consultant will not be entitled to any compensation for
services performed pursuant to this Agreement, including reimbursement of
expenses, and Consultant will be required to reimburse the City for any sums paid
to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of Government Code §
1090 and, if applicable, will be disqualified from holding public office in the State
of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus
group, or interview related to this Agreement, either orally or through any written
materials.
10.9 Contract Administration. This Agreement shall be administered by Sam
Bautista ("Contract Administrator"). All correspondence shall be directed to or
through the Contract Administrator or his or her designee.
10.10 Notices. All notices and other communications which are required or may be
given under this Agreement shall be in writing and shall be deemed to have been
duly given (i) when received if personally delivered; (ii) when received if
transmitted by telecopy, if received during normal business hours on a business
day (or if not, the next business day after delivery) provided that such facsimile is
legible and that at the time such facsimile is sent the sending Party receives
written confirmation of receipt; (iii) if sent for next day delivery to a domestic
address by recognized overnight delivery service (e.g., Federal Express); and (iv)
upon receipt, if sent by certified or registered mail, return receipt requested. In
each case notice shall be sent to the respective Parties as follows:
Consultant
Biggs Cardosa Associates, Inc.
865 The Alameda
San Jose, CA 95126
City
NOTICES INVOICES
City Clerk Engineering
City of South San Francisco City of South San Francisco
400 Grand Avenue 315 Maple Ave
South San Francisco, CA 94080 South San Francisco, CA 94080
10.11 Professional Seal. Where applicable in the determination of the contract
administrator, the first page of a technical report, first page of design
specifications, and each page of construction drawings shall be stamped/sealed
and signed by the licensed professional responsible for the report/design
preparation. The stamp/seal shall be in a block entitled "Seal and Signature of
Registered Professional with report/design responsibility," as in the following
example.
_________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibits A, B, C, and D represents the entire and integrated
agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral pertaining to the matters
herein.
Exhibit A Scope of Services
Exhibit B Compensation Schedule
Exhibit C Provisions Required For Public Works Contracts
Exhibit D Form 590
10.13 Counterparts. This Agreement may be executed in counterparts and/or by
facsimile or other electronic means, and when each Party has signed and delivered
at least one such counterpart, each counterpart shall be deemed an original, and,
when taken together with other signed counterpart, shall constitute one
Agreement, which shall be binding upon and effective as to all Parties.
10.14 Construction. The headings in this Agreement are for the purpose of reference
only and shall not limit or otherwise affect any of the terms of this Agreement.
The parties have had an equal opportunity to participate in the drafting of this
Agreement; therefore any construction as against the drafting party shall not apply
to this Agreement.
10.15 No Third Party Beneficiaries. This Agreement is made solely for the benefit of
the Parties hereto with no intent to benefit any non-signatory third parties.
[SIGNATURES ON FOLLOWING PAGE]
The Parties have executed this Agreement as of the Effective Date.
CITY OF SOUTH SAN FRANCISCO CONSULTANT
____________________________ ______________________________
Mike Futrell, City Manager Mahvash Harms, PE, SE
Principal-in-Charge
Attest:
____________________________
City Clerk
Approved as to Form:
____________________________
City Attorney
2729964.1
EXHIBIT A
SCOPE OF SERVICES
CONSTRUCTION MANAGEMENT ITEM
TASK 1 - Preconstruction Services
1.1 Plan & Specifications Review / Schedule Analysis / Budget Assessment
Prepare Project Manual
Review Construction Contract Documents and Develop List of Submittals
Review Proposed Project Schedule
Review Budget and Provide Cost Control Recommendations
Review Dispute Resolution Review / Caltrans Permit Dept. Coordination
SWPPP Review and Implementation
1.2 Bidding Assistance
Bidding Assistance - Bid Tabulations / Bid Analysis / Payment Schedules
Contract Award / Check Contractor References Licenses,Insurance and Sureties
1.3 Constructability Review, Claims Avoidance and Value Engineering
Perform Constructability Review
Develop Claims Avoidance / Value Engineering Recommendations
1.4 Traffic Management Coordination during Preconstruction
Analyze Project Traffic Management Plans (TMP)
Review Project Staging Plans & Propose Revisions
1.5 Public Outreach during Preconstruction and Preconstruction Meetings
Develop Stakeholders Database
Facilitate Public Meeting
1.6 Preconstruction Condition Survey
Perform Preconstruction Condition Survey
TASK 2 - Construction Management Services (during construction)
2.1 Project Administration, Coordination and Correspondence
Establish Filing System and Document Control
Coordinate Partnering Sessions
Weekly Construction Meetings
Caltrans Permit Department Coordination During Construction
Coordination with City, Environmental Monitor, and Design Team
3rd Party Utility Coordination
2.2 Construction Schedule Analysis and Management
Monitoring Project Schedule During Construction
Coordination Schedule with Caltrans, City, and 3rd Parties
2.3 Payment Recommendations
Review Contractor's Monthly Schedule of Values
Analyze and Coordinate Monthly Progress Payments
2.4 Request for Information (RFI)
RFI Coordination and Responses (5 RFIs assumed)
2.5 Change Orders
Contract Change Order Coordination and Processing (3 CCO assumed)
2.6 Construction Observation / Inspection Services
Construction Survey Control (OPTIONAL)
Submittal Reviews
Construction Inspections, Material Sampling and Testing / Construction
Observation (Labor Compliance / Permits / Safety)
Stage 1 Construction
Temporary K-Rail, Striping, and Signs
Median Demolition and Temporary HMA
Construct Curb Ramp at SE Corner of North Access Road
Stage 2 Construction
Temporary Creek Diversion Installation
Water Quality Sampling and Testing
Traffic Striping, Pavement Markings, and Crash Cushion
Installation
Temporary Signal Installation
Bridge Demolition
Abutment Shoring Installation
Steel Pile Installation (Including Pile Splicing)
Abutment Diaphragm Construction
Bridge Falsework Installation
Bridge Deck Construction
Bridge Deck Post-Tensioning
Abutment Wingwall Construction
Temporary Creek Diversion Removal
Structure Approach Slab Construction
Bridge Profilograph and Coefficient of Friction Testing
Stage 3 Construction
Temporary Creek Diversion Installation
Traffic Striping, Pavement Markings, and Crash Cushion
Installation
Temporary Signal Installation
Bridge Demolition
Steel Pile Installation (Including Pile Splicing)
Abutment Diaphragm Construction
Bridge Falsework Installation
Bridge Deck Construction
Bridge Deck Post-Tensioning
Abutment Wingwall Construction
Temporary Creek Diversion Removal
Structure Approach Slab Construction
Bridge Profilograph and Coefficient of Friction Testing
Bridge Concrete Barrier, Median, and Bridge Railing Construction
Utility Relocation
Joint Seal Installation
Stage 4 Construction
Curb Ramp Construction at Beacon Street
Construct Roadway Sidewalk
Utility Relocation
Bridge Concrete Barrier, and Bridge Railing Construction
Final HMA Pavement, Delineation, and Signs
Permanent Lane Striping, Pavement Markings, and Crash
Cushions
New Signal at Intersection
Project Close-Out Preparation
2.7 Changes and Claims Management
Contractor Claims Review and Analysis (4 claims assumed)
2.8 Public Outreach during Construction
Monthly Progress Project Data Sheets
Update Website or Blog Content
Project Public Hotline
2.9 Traffic Management Coordination during Construction
Baseline Schedule Review with TMPs and Staging Plans
Review TMPs for Coordination with Future Construction Projects & Re-Analyze
TMP
TASK 3 - Post Construction Services (Close Out/Claims)
3.1 Project Closeout
Final Walkthrough and Generate Punchlist
Inspect Punchlist Items
Commissioning of Signal and Synchronization / Final Release of Project Permits
Finalize Outstanding Contract Change Orders / Global Settlements, Dispute
Resolution, Arbitration Meetings / Final Payment
Project Closeout Documents
EXHIBIT B
COMPENSATION SCHEDULE
EXHIBIT C
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
I. HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, eight (8) hours of labor in
performance of the services described in Exhibit A shall constitute a legal day’s work
under this contract.
B. In accordance with California Labor Code Section 1811, the time of service of any
worker employed in performance of the services described in Exhibit A is limited to
eight (8) hours during any one (1) calendar day, and forty (40) hours during any one
calendar week, except in accordance with California Labor Code Section 1815, which
provides that work in excess of eight (8) hours during any one (1) calendar day and
forty (40) hours during any one calendar week is permitted upon compensation for all
hours worked in excess of eight (8) hours during any one (1) calendar day and forty (40)
hours during any one (1) calendar week at not less than one-and-one-half (1.5) times
the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the City twenty five
dollars ($25) for each worker employed in the performance of the services described in
Exhibit A for each calendar day during which the worker is required or permitted to
work more than eight (8) hours in any one (1) calendar day, or more than forty (40)
hours in any one (1) calendar week, in violation of the provisions of California Labor
Code Section 1810, et seq..
II. WAGES:
A. In accordance with California Labor Code Section 1773.2, the Contractor and any
subcontractors shall pay not less than the general prevailing wages for each craft or type
of work needed for completion of the services described in Exhibit A, as published by
the State of California Department of Industrial Relations, Division of Labor Statistics
and Research. A copy of this publication is on file in the City Public Works Office and
shall be made available on request.
B. Pursuant to Labor Code Section 1775, Contractor may be subject to a penalty of up to
two hundred dollars ($200) per day for each worker engaged in the performance of the
services described in Exhibit A that the Consultant or any subcontractor pays less than
the specified prevailing wage. The Consultant or subcontractor shall also pay the
difference between the prevailing wage rates and the amount paid to each worker for
each calendar day or portion thereof for which each worker was paid less than the
prevailing wage rate.
C. Consultant shall comply with all of the following requirements:
1. contracts between the Consultant and the subcontractor for the performance of
part of the services described in Exhibit A shall include a copy of the provisions
of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of
per diem wages by the subcontractor by periodic review of the subcontractor’s
certified payroll records.
3. Upon becoming aware of a subcontractor’s failure to pay the specified
prevailing rate of wages, the Consultant shall diligently take corrective action to
halt or rectify the failure, including, but not limited to, retaining sufficient funds
due the subcontractor for performance of the services described in Exhibit A.
4. Prior to making final payment to the subcontractor, the Consultant shall obtain
an affidavit signed under penalty of perjury from the subcontractor that the
subcontractor has paid the specified general prevailing rate of per diem wages
for employees engaged in the performance of the services described in Exhibit
A and any amounts due pursuant to California Labor Code Section 1813.
D. In accordance with California Labor Code Section 1776, the Consultant and each
subcontractor engaged in performance of the services described in Exhibit A shall keep
accurate payroll records showing the name, address, social security number, work,
straight time and overtime hours worked each day and week, and the actual per diem
wages paid to each journeyman, apprentice, worker, or other employee employed in
performance of the services described in Exhibit A. Each payroll record shall contain
or be verified by a written declaration that it is made under penalty of perjury, stating
both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of Sections 1771, 1811, and
1815 for any work performed by the employer’s employees on the public works
project.
The payroll records required pursuant to California Labor Code Section 1776 shall be
certified and shall be available for inspection by the City and its authorized
representatives, the Division of Labor Standards Enforcement, the Division of
Apprenticeship Standards of the Department of Industrial Relations and shall otherwise
be available for inspection in accordance with California Labor Code Section 1776.
E. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of
the Consultant and any subcontractors engaged in performance of the services
described in Exhibit A, shall be responsible for ensuring compliance with California
Labor Code Section 1777.5 governing employment and payment of apprentices on
public works contracts.
EXHIBIT D
FORM 590