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AGREEMENT WITH CONSOR PMCM, Inc.
FOR PROFESSIONAL CONSULTANT SERVICES
FOR
CONSTRUCTION MANAGEMENT FOR
MARINA BRANCH PUBLIC LIBRARY RESTORATION PROJECT
This Agreement, made and entered into this day of ____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and Consor PMCM, Inc. a California corporation (“CONSULTANT”), whose address is 1663 Mission Street, Suite #425 San Francisco, California 94103.
RECITALS:
A. CITY desires certain construction management and inspection services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these construction management and inspection services by reason of its qualifications and experience for performing such services and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
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SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on the date of execution and be completed on June 30, 2027.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONSULTANT a fee in an amount of $824,900, pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not. Any reuse of documents outside the scope of work for which it was developed, or any alteration thereof without Consultant review and approval shall be at City’s sole risk and without liability to Consultant.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
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SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all third-party claims, loss, liability, damage, and expense arising out of CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend (except with respect to professional negligence), City, its elected and appointed officials, employees, and agents against any such claims. The Consultant’s obligation to defend professional negligence claims is limited to reimbursement of expenditure, including reasonable attorneys fees and costs, incurred by the City, in defending claims or lawsuits, ultimately determined to be due to negligent acts or omissions of the Consultant or any of its officers, employees or subcontractors. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
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SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work with the care and skill ordinarily used by members of the profession practicing under similar circumstances at the same time and in the same locality, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
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SECTION 19 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Karen Cornejo
City of San Mateo
330 West 20th Avenue
San Mateo, CA 94403
To CONSULTANT: Consor PMCM, Inc.
Attn: Steve Patterson
1663 Mission Street, Suite #425
San Francisco, California 94103
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONSULTANT.
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SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, CITY OF SAN MATEO and Consor Engineers, Inc. have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Matt Fabry
Director of Public Works
Date Ismael Pugeda
Its Authorized Agent
Senior Vice President
If a Corporation, can be either 1)
President or 2) Vice President
plus an additional corporate
officer (i.e., Secretary, Treasurer)
who shall sign below.
Date
APPROVED AS TO FORM ADDITIONAL CORPORATE
OFFICER
(if necessary per the above)
Linh Nguyen
Assistant City Attorney
Date Matthew Cass
Senior Vice President
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Task 1 – Construction Management and General Inspection CONSULTANT shall provide the construction management and general inspection services outlined below.
Provide administrative support including, but not limited to, maintaining project files, convening necessary meetings, providing meeting notes, monthly progress reports, photographic documentation, pay application reviews/negotiations and on-site observation. Provide, administer, and manage Project communication and documentation until Final Completion.
Monitor Erosion Control BMP’s and environmentally sensitive area fencing installation and maintenance. Verify construction operations do not go past the top of bank. Verify construction waste and materials does not enter Seal Slough.
Review scheduled submittals and provide schedule management support. Provide close-out support including furniture, fixtures and equipment installations, move-in coordination, punch list management, O&M manuals, as-built reference documentation review, final release of retention pay review and warranty work management. Ensure all permits are pulled and inspections are conducted. Act as construction project coordinator and the point of contact for all communications and interaction with the contractor, affected local agencies, design team, utility companies, City staff, members of the Public and other firms performing work. Review and monitor the construction schedule. Prepare weekly reports documenting the progress of construction. Take photographs and videotape recordings of the construction progress on a regular basis.
Schedule, manage, perform and document all field and laboratory testing services as provided in project specifications.
Coordination with the design team.
Evaluate, negotiate, recommend, and prepare change orders. Prepare and recommend progress payments.
Identify potential claims and make recommendations to resolve said claims. Perform field inspection activities, monitor contractor’s performance and enforce all requirements of applicable codes, specifications, and contract drawings. Oversee the design clarification process.
Oversee quality control and materials testing.
Provide final punch-list inspection services and project closeout activities, including preparation of the final construction project report.
Turn over all construction documents to the City, including As-Builts. All reports, calculations, measurements, test data and other documentation shall be prepared on forms specified by or otherwise acceptable to the City. Daily reports, extra work diaries, materials testing reports, and other reports shall be submitted to the City.
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Task 1 Deliverables:
Meeting notes.
Documention for all field and laboratory testing services as provided in project specifications. Daily inspection reports, extra work diaries, materials testing reports and other reports. oDaily inspection reports to include trades/subcontractors on site, work performed, and photos in PDF format.
Weekly and monthly progress reports documenting the progress of construction. Written review response for submittals, RFIs, change orders, progress payments. Photo and video documentation.
Final punchlist and construction documents, including As-Builts.
Task 2 – Special Inspections
CONSULTANT shall perform and coordinate the following special inspections:
Perform all special inspections, with the exception of the geotechnical and soils special inspections, as required by the 2022 California Building Code (CBC) Chapter 17. The special inspections shall be performed by an approved agency in accordance with 2022 CBC, Chapter 17, the statement of special inspections as required by 2022 CBC Sections 1704.2.3 and 1704.3 for building structural elements, and as outlined in the Project Plans. Coordinate all special inspections related to geotechnical and soils construction that will be completed by a separate firm.
Task 2 Deliverables:
Special inspection documentation and testing reports. Special inspection schedule to align with contractor schedule.
Task 3 – Environmental Services
CONSULTANT SHALL provide qualified staff required for compliance with standard measures from the Marina Branch Library Restoration California Environmental Quality Act (CEQA) Categorical Exemption.
1.A qualified Biologist shall perform preconstruction/pre-disturbance surveys to ensure that no nests of migratory will be disturbed during project implementation.
2.A Qualified Biologist shall provide Worker Environmental Awareness Training to all personnel involved in construction adjacent to Seal Slough. The training shall include, at a minimum, a review of the aquatic animals and plants, and sensitive habitats, that could be found in or downslope from work areas; measures to avoid and minimize adverse effects on those resources; and a review of all conditions and requirements of environmental permits.
Task 3 Deliverables:
Preconstruction and predisturbance surveys.
Worker environmental awareness training documentation and attendance.
Task 4 – Hazardous Materials Compliance
CONSULTANT shall provide qualified personnel for coordination for regulatory compliance for removal, containment, abatement, and disposal of hazardous materials including regulated asbestos containing materials, lead containing paints, PCB’s, mercury containing fluorescent light tubes or ballast mercury Professional Services Page 10 of 15
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switches, equipment or systems that may contain Freon or other fluorocarbons, or smoke detectors which may contain a radioactive element. Services to be provided shall include, but are not limited to:
1.Specification requirements - Verify the contractor complies to the Requirements for Disturbance of Lead in Construction specifications, Asbestos Requirements specifications, and Other Hazardous Materials specifications.
2.Pre-Abatement and Post-Abatement Submittal Review - Review of all contractor submittals related to asbestos and lead abatement, including work plans, safety procedures, and material specifications, verify that each submittal complies with applicable regulations and project specifications before work begins, and provide written recommendations for adjustments required to address any noted discrepancies or issues. After the abatement work is completed, review all final submittals, including clearance testing results and project closeout documents, confirm that the abatement work has been completed in accordance with the approved specifications and that all necessary documentation is in order.
3.Air Monitoring - provide oversight and approval of perimeter air monitoring during the abatement of asbestos and lead-containing materials. Ensure that airborne contaminant levels are monitored throughout the abatement process to protect workers and public safety and to confirm that air quality remains within regulatory limits. a. Coordinate with abatement contractor to set up air monitoring stations at strategic locations around the perimeter of the work area.
b. Oversee the real-time air monitoring process, ensuring that samples are collected according to regulatory standards and project specifications. This includes verifying that the correct sampling methods and equipment are used.
4.Data Review and Approval – Ship samples to a laboratory with a 24-hour turnaround time.
Review the air monitoring results upon receipt to ensure that they are within acceptable regulatory limits, and if the results indicate elevated levels, work with the contractor to address the issue and determine if additional controls or sampling are needed.
5.Lead Wipe Sampling for Reoccupation - Conduct lead wipe sampling on key surfaces, including windowsills and floors, in the affected areas. Use standardized methods to collect samples, which are then analyzed in a certified laboratory to determine lead dust levels. a. Regulatory Compliance – CONSULTANT shall ensure that lead levels are below the regulatory limit of 10 micrograms per square foot. If levels are found to be above this threshold, additional cleaning and re-sampling may be necessary until the area meets safety standards.
Task 4 Deliverables:
Written review responses for pre-abatement and post-abatement submittal reviews. Written responses of review of air monitoring results. Detailed report of the lead sampling results, along with any regulatory standards and methods for re-cleaning or for further action, if needed.
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Task 5 – General Consulting Services
CONSULTANT shall provide limited general consulting services to additionally support the City with construction management, general inspection, special inspection, environmental services, and/or hazardous materials compliance.
Consultant shall request the City’s written authorization prior to commencing with any services as part of Task 5.
Task 5 Deliverables:
To be determined.
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EXHIBIT B
FEE RATES
Title Regular Rate Overtime Rate
Project Manager $250 $250
Assistant Project Manager $175 $262.50
Office Engineer $130 $195
Construction Inspector $180 $270
On-Call Scheduler $200 $200
Senior Engineer/Helical
Pile SME
$250 $250
Special Inspector
(Subconsultant)
See below. See below.
All Subconsultants are cost + 5%.
All overtime work and use of overtime rates require written City authorization prior to commencement of overtime work.
Special Inspector Fee Rates
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EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1.Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2.Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if CONSULTANT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3.Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.
If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the CONSULTANT’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the CONSULTANT’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the CONSULTANT’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
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Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the CONSULTANT to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
CONSULTANT shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the CONSULTANT’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.