Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
CONSULTING SERVICES AGREEMENT
BETWEEN
THE CITY OF UNION CITY
AND
CONSOR NORTH AMERICA, INC.
FOR CONSTRUCTION MANAGEMENT SERVICES FOR THE
QUARRY LAKES PARKWAY PROJECT, PHASE 2
CITY PROJECT NO. 18-04
This Agreement for consulting services is made by and between the City of Union City, a municipal corporation, (“City”) and Consor North America, Inc., a California corporation, with offices located at 2044 Franklin Street, Suite M1, Oakland, CA 94612, (“Consultant”), (together referred to as the “Parties”) as of March 24, 2026 (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 as Exhibit A and incorporated herein, 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, 2027, 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 referenced in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
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 is of the Essence. Time is of the essence. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to timely finish the Scope of Work, to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant’s obligations hereunder.
1.5 Public Works Requirements. Because the services described in Exhibit A include “work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work,” the services constitute a public works within the definition of Section 1720(a)(1) of the California Labor Code. As a Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
result, Consultant is required to comply with the provisions of the Labor Code applicable to public works, to the extent set forth in Exhibit C. Consultant shall waive, indemnify, hold harmless, and defend City concerning any liability arising out of Labor Code Section 1720 et seq.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed Two Hundred Sixty Thousand Dollars ($260,000), 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 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 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.;
• Project name & number if applicable;
• Per Item 1.1, Terms of Service expiration date;
• Purchase Order number to expedite payment;
• 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;
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
• The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder;
• The Consultant’s signature;
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within 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 Rate/Fees. Unless the services provided are for a lump sum or flat fee, fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation cost proposal attached hereto as Exhibit B. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit B, the Agreement shall prevail.
2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B, attached hereto and incorporated herein. Reimbursable expenses not listed in Exhibit B are not chargeable to City. Reimbursable expenses shall not include a mark-up and are billed as a direct cost. In no event shall expenses be advanced by the City to the Consultant.
Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
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. Business License. The Consultant is not authorized to perform services or incur costs whatsoever under the terms of this Agreement until Consultant applies for and has been issued a business license from the City pursuant to Title 5 of the Union City Municipal Code.
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 for 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 to the City that such insurance is in effect. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Required Coverage. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
COVERAGE TYPE OF INSURANCE MINIMUM LIMITS
A Commercial General
Liability
Premises Liability; Products
and Completed Operations;
Contractual Liability;
$1,000,000 per occurrence;
Bodily Injury and Property
Damage
$2,000,00 in the aggregate;
Commercial general
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
Personal Injury and
Advertising Liability
coverage shall be at least as
broad as Insurance Services
Office Commercial General
Liability occurrence form CG
0001 (most recent edition)
covering comprehensive
General Liability on an
“occurrence” basis.
B Commercial or Business
Automobile Liability
All owned vehicles, hired or
leased vehicles, non-owned,
borrowed and permissive
uses. Personal Automobile
Liability is acceptable for
individual contractors with no
transportation or hauling
related activities
$1,000,000 per occurrence;
Any Auto; Bodily Injury and
Property Damage.
Automobile coverage shall
be at least as broad as
Insurance Services Office
Automobile Liability form CA
0001 (most recent edition),
Code 1 (any auto). No
endorsement shall be
attached limiting the
coverage.
C Workers’ Compensation
(WC) and Employers
Liability (EL)
Required for all contractors
with employees
WC: Statutory Limits
EL: $100,000 per accident
for bodily injury or disease.
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. The
insurer 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.
D Professional
Liability/Errors &
Omissions
Includes endorsements of
contractual liability
$1,000,000 per occurrence
$2,000,000 policy
aggregate; Any deductible or
self-insured retention shall
not exceed $150,000 per
claim.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
4.2 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. All required insurance shall be maintained during the entire term of the Agreement with the following exception: Insurance policies and coverage(s) written on a claims-made basis shall be maintained during the entire term of the Agreement and until three (3) years following termination and acceptance of all work provided under the Agreement, with the retroactive date of said insurance (as may be applicable) concurrent with the commencement of activities pursuant to this Agreement
b. All insurance required above with the exception of Professional Liability, Personal Automobile Liability, Workers’ Compensation and Employers Liability, shall be endorsed to name as additional insured: City of Union City, its City Council, and all City officers, agents, employees, volunteers and representatives. c. For any claims related to this Agreement or the work hereunder, the Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
d. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days’ prior written notice has been provided to the City.
e. Certificates of Insurance: Before commencing operations under this Agreement, Consultant shall provide Certificate(s) of Insurance and applicable insurance endorsements, in form and satisfactory to City, evidencing that all required insurance coverage is in effect. The City reserves the rights to require the Consultant to provide complete, certified copies of all required insurance policies. f. Subcontractors: Consultant shall include all subcontractors as an insured (covered party) 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.
g. Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
i. The retroactive date of the policy must be shown and must be before the date of the Agreement.
ii. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates.
iii. 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 Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
Agreement, Consultant must purchase an extended period coverage for a minimum of three (3) years after completion of work under this Agreement. iv. 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 All Policies Requirements.
a. 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. Insurance shall be maintained through an insurer with a minimum A.M. Best Rating of A- or better, with deductible amounts acceptable to the City. Acceptance of Consultant’s insurance by City shall not relieve or decrease the liability of Consultant hereunder. Any deductible or selfinsured retention amount or other similar obligation under the policies shall be the sole responsibility of the Consultant.
b. Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written 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. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. c. Wasting Policies. No policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense). d. Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the consultant, its employees, agents, and subcontractors.
4.4 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
• Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
• Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
• Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES.
Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City.
The Consultant’s obligation to defend and indemnify shall not be excused because of the Consultant’s inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days, to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense, whichever occurs first.
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any type to express or implied indemnity against the Indemnitees.
Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of consultant to indemnify shall not apply when to do so would be prohibited by California Civil 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 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, Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
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. 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 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 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.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 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 termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all work product, including, but not limited to 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.
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 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
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
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 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 $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 3 years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to 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 Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
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 paper materials on paper containing a minimum of 30% postconsumer recycled content when they are available in the marketplace at equal or less cost than virgin paper and are equal in performance to 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 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code § 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by the City Manager, or his designee, identified as Marilou Ayupan ("Contract Administrator"). All correspondence, meeting documentation, invoices and project deliverables shall be directed to or through the Contract Administrator.
Marilou Ayupan, PE
Public Works Director
City of Union City
34009 Alvarado-Niles Road
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
Union City, CA 94587
[email protected]
10.10 Notices. Any written notice to Consultant shall be sent to:
Jaemin Park, PE
Project Manager
Consor North America, Inc.
2044 Franklin Street, Suite M1
Oakland, CA 94612
[email protected]
All other written notices to City shall be sent to:
Joan M. Malloy Kristopher J. Kokotaylo,
City Manager City Attorney
City of Union City City of Union City
34009 Alvarado Niles Rd. with a copy to 34009 Alvarado Niles Rd.
Union City, CA 94587 Union City, CA 94587
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, and C, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.
Exhibit A Scope of Services
Exhibit B Compensation Schedule
Exhibit C Public Works Requirements
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PAGE
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
The Parties have executed this Agreement as of the Effective Date.
CITY OF UNION CITY CONSOR NORTH AMERICA, INC.
______________________________ ______________________________________
JOAN MALLOY, CITY MANAGER IAN MACHAN, EXECUTIVE VICE PRESIDENT ATTEST:
______________________________
THAI NAM N. PHAM, CITY CLERK
APPROVED AS TO FORM:
_________________________________
KRISTOPHER J. KOKOTAYLO
CITY ATTORNEY
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
EXHIBIT A
SCOPE OF SERVICES
Consor North America, Inc. team (Consultant) will support the City of Union City by providing constructability and bid-ability review, followed by providing construction management, inspection and material testing services for Quarry Lakes Parkway, Phase 2 (Old Alameda Creek to Alvarado-Niles Road), City Project No. 18.04 with a contract amendment. The construction phase is funded with Measure B funds administered through Alameda County Transportation Commission (Alameda CTC) and Regional Measure 3 (RM3) funds from Metropolitan Transportation Commission (MTC). The detailed Scope of Services are as follows:
PRE-CONSTRUCTION SERVICES
Consor team will perform constructability review of PS&E milestone submittals (95%, PS&E, 100% PS&E and Final PS&E) for Quarry Lakes Parkway, Phase 2 with red-lined plans and written comments to ensure contract documents are complete, fair and competitive for bidding a major roadway project similar to Caltrans PS&E complete bid package. Consultant will perform the reviews thoroughly and develop a list of items that will be needed for a complete and thorough bid package.
Performing the review will take several steps.
➢ Develop a review team to include resident engineer, deputy resident engineer, construction inspectors, and other experienced construction professionals from the team. Review of the contract documents will be led by Jaemin Park, with Tricia Baxter, Chris Kinser, and additional support by Thom Frequez of MNS, and James Wilcenski of MNS, who both have extensive experience with similar projects.
➢ Review and tabulate comments for review with the Mark Thomas & Company. ➢ perform comprehensive review with focus on quality of work, pay clauses and acceptance criteria, public convenience, project schedule, and existing conditions.
➢ Compare project plans and project specifications to verify that any conflicts or ambiguities are addressed.
➢ Meet with Design Consultant, Mark Thomas and the City to work out issues and concerns with the contract documents.
➢ Perform final review of plans, specifications and supporting documents in preparation of the final construction contract for advertisement of the project. ➢ Assist the City with management of the bid process from starting advertisement through the construction bid and award, as requested. • Work with City staff and the design team on preparation of addendums and answering of bid questions received in a timely manner.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
• Coordinate and participate in pre-bid meeting, review bids, bid bonds, insurance information to assist the City in selecting a qualified bidder for construction.
CONSTRUCTION SERVICES (FUTURE CONTRACT AMENDMENT)
Project Administration
1. Prepare documents for City approval to meet ACTC and State requirements following award of the construction contract.
2. Act as the single point of contact for all communications and coordination between the contractor, utility companies, regulatory agencies, local businesses and residents, designer, and the City.
3. Maintain close contact with City Project Manager, including sharing all correspondences, to ensure that the City is kept up to date on all project matters.
4. Prepare a monthly progress report to meet the City’s needs in presenting the project’s key issues and updates on cost and schedule status.
5. Manage submittals from the contractor, tracking date submitted, duration for review and making sure that submittals are reviewed and returned within the allotted time to prevent any delays.
6. Coordinate, manage and respond to Requests for Information (RFI’s) submitted by the contractor, including tracking RFI’s sent to the designers and/or other agencies for their timely response.
7. Coordinate and conduct meetings with the contractor, designer and oversight agencies for RFI’s, when appropriate to resolve and clarify complex issues.
8. Coordinate, conduct and summarize weekly progress meetings with the contractor during construction. Meeting may include design team and other oversight agencies.
9. Manage any necessary utility coordination for conflicts or relocation work required.
10.Perform all field inspection activities to monitor compliance with the contract plans and specifications. Record all items of work, labor, equipment, materials incorporated, materials tested, and any other pertinent information in a daily diary for permanent record of events.
11.Monitor contractor’s construction activities for conformance with the approved Water Pollution Control Plan and NPDES General Permit requirements.
12.Maintain and enforce safety awareness for the protection of workers and public.
13.Project daily reports, photographs and video documentation of project progress and major work components will be done on a daily basis and kept for permanent records to support disputes and verify quality for acceptance.
14.Schedule and perform necessary sampling and testing of materials for the project in accordance with the specifications.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
15.Use a contract management system, which is based on the Caltrans Construction Manual and Caltrans Local Assistance Procedures Manual. Electronic forms and document control system will be implemented at project start up that can be tailored to fit the needs of the City and other partner, oversight and funding agencies.
16.Receive all contractor correspondence and prepare and transmit responses.
17.Review and approve contractor submittals required by the construction contract plans and specifications including traffic control plans, Water Pollution Control Plans, and various mix designs.
18.Review the contractor’s weekly certified payroll for compliance with prevailing wage requirements and conduct labor interviews.
19.Evaluate contractor's change order requests and claims and make recommendations to the City based on the merit and circumstances.
20.Review cost estimates and documentation for any contract change order work.
21.Negotiate and prepare any contract change orders with justification memorandums for the City’s approval.
22.Prepare quantity calculations, including any contract change orders, and progress pay estimates on a monthly basis.
23.Review contractor’s monthly invoices to verify accuracy and “sign-off” on construction progress pay estimates for City payment approval.
24.Monitor and report on project budget and construction status and provide any necessary info needed for funding reimbursements.
25.Provide construction contract accounting, filing and administration in accordance with City, ACTC, State and Federal requirements.
26.Support all project work with documentation to meet the contract requirements for acceptance.
27.Review contractor’s traffic control plans with City Project Manager and City Departments for acceptability prior to approval.
28.Review contractor’s planned schedule for conformance with the specifications and for reasonableness of the sequence and duration of the activities.
29.Review work progress as compared to the planned schedule and notify contractor of schedule slippage.
30.Prepare and distribute accurate Weekly Statement of Working Day reports to track project time.
31.Identify actual and potential problems associated with the construction project and recommend sound engineering solutions to the City Project Manager.
32.Analyze, negotiate and resolve any potential claims.
Inspection and Materials Testing
1. Work will be tracked in relation to the items of work on the contract with an estimate of hours worked for each activity.
2. Perform all field inspection activities to monitor compliance with the contract plans and specifications. Record all items of work, labor, equipment, materials incorporated, materials tested, traffic control and any other pertinent information in a daily diary for permanent record of events.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
3. Inspect the construction elements of the project as required by the construction contract plans and specifications.
4. Take photographs and videos of project progress and major work components on a weekly basis and file for permanent records to support disputes and verify quality for acceptance.
5. Necessary sampling and testing of materials will be performed by AME for the project in accordance with the specifications.
6. Arrange for specialty inspection, such as source inspection to ensure compliance with the contract.
7. Quality Assurance Program (QAP) indicating all the materials testing requirements for the project. All the record keeping and testing frequencies for the materials specified on the project will be listed in this manual and followed through the project. Other materials which do not require testing but can be accepted based on the Certificate of Compliance will be listed in this manual.
8. Analyze records of materials used in the project in accordance with ASTM and California Standard Test Methods.
9. Review test data and materials certifications submitted by the contractor and suppliers for compliance with the contract requirements.
10.Document & develop deficiency reports on unacceptable work to meet the City’s reporting requirements and ensure that corrective work is completed and documented as such.
11.Maintain and enforce safety awareness for the protection of workers and public.
12.Monitor daily traffic control for both vehicles and pedestrians and modify as necessary to improve public convenience and/or safety.
13.Perform during construction drone video including mapping in northbound and southbound directions as requested by City.
Public and Community Outreach
1. Implement cost-effective outreach methods to disseminate project information and build consensus with key stakeholders.
2. Assist in organization and execution of any public outreach meetings and events.
3. Set up, monitor and update project website, hotline, and social media sites.
4. Work with the City to link City’s website with project sites.
5. Provide accurate and timely project updates on a weekly basis of the work performed and upcoming work.
6. Answer questions from the public concerning the project work and schedule, by meeting them in person (if possible) or at least via e-mail or phone call.
7. Ensure all street closure notifications are posted timely and accurately. And the closures are approved by the appropriate agency prior to implementation.
Accordingly, all the signs are posted accurately per approved plans for closures.
8. Coordinate and communicate with adjacent businesses and residents to minimize impacts and maintain a neighborly reputation for the project. Address public concerns on a daily, weekly, and monthly basis, as needed.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
9. We will be available to answer questions on an ongoing basis and for any meetings. We will report the current status of the project’s schedule to the City on a daily, weekly and monthly basis through meetings and progress report requests.
ACTC Funding Support
Construction Phase Programming and Reimbursement Assistance for Alameda CTC Funding Assist in organization and execution of any public outreach meetings and events.
1. Facilitation of approvals of documents needed for the obligation and administration of Alameda CTC funding including tracking of funding details, requirements, and milestones.
Documents include but are not limited to:
o Local Business Contract Equity Semi-Annual Reports.
o Semi-Annual Progress Reports.
o TFCA Annual Reports.
o Alameda CTC Project Funding Agreement Amendment Requests, as needed.
2. Reimbursement requests for construction invoices.
3. Closeout document preparation.
Documents include but are not limited to:
o TFCA Final Report.
o Alameda CTC Final Report.
Bicycle and Pedestrian Advisory Committee (BPAC) Meeting Updates Provide necessary meeting updates and information on the project works as needed and requested by the City.
POST CONSTRUCTION SERVICES
1. Inspect work as it is completed. Develop punch list for any needed corrections as the work progresses.
2. Conduct, review, and follow up on inspection work to assure completion of the contract including any punch list items of work.
3. Perform final inspection of all work for acceptance.
4. Finalize all bid items and change order totals for the project’s Final Progress Payment.
5. Provide recommendation and supporting information to resolve any outstanding potential claims.
6. Work with the contractor’s staff to prepare and transition, official and accurate construction record drawings and Final Reports required.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
7. Prepare all required documents for project close-out for the City. We will complete all documents including - Report of Completion, Final Inspection Report, Detailed Estimate and Summary, Change Order Summary, Final Utilization of LBE/VSLBE Contractors, Report of Expenditures, As-builts, and Final Invoice.
8. Perform post construction drone video including mapping in northbound and southbound directions as requested by City.
9. Submit all records and documents to the City upon final completion of the project.
10.Perform any additional services as requested by the City.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
EXHIBIT B
COMPENSATION
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
EXHIBIT B.1
HOUR RATE SCHEDULE
Jaemin Park $315.00/hr
Tom Fresquez $325.00/hr
Tricia Baxter $275.00/hr
Chris Kinser $202.00/hr
Chris Kinser Overtime Rate $303.00/hr
Andy Bodo $195.00/hr
Andy Bodo Overtime Rate $292.50/hr
Rate increase of 3% in January of each year.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
EXHIBIT C
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, 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 hours during any one calendar day, and forty hours during any one calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of eight hours during any one calendar day and forty hours during any one calendar week is permitted upon compensation for all hours worked in excess of eight hours during any one calendar day and forty hours during any one calendar week at not less than oneand-one-half times the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the City $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 8 hours in any one calendar day, or more than 40 hours in any one calendar week, in violation of the provisions of California Labor Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City Public Works Office and shall be made available on request. The Consultant and subcontractors engaged in the performance of the services described in Exhibit A shall pay no less than these rates to all persons engaged in performance of the services described in Exhibit A.
B. In accordance with Labor Code Section 1775, the Consultant and any subcontractors engaged in performance of the services described in Exhibit A shall comply Labor Code Section 1775, which establishes a penalty of up to $50 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 amount of such penalty shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or subcontractor in meeting applicable prevailing wage obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their obligations under Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
the California Labor Code. The Consultant or subcontractor shall 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.
If a subcontractor worker engaged in performance of the services described in Exhibit A is not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable for any penalties therefore unless the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements:
1. The contract executed 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.
C. 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 Owner 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.
Consulting Services Agreement between
City of Union City and Consor North America, Inc., City Project No. 18-04
D. 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.
E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance of the services described in Exhibit A to employ for the services described in Exhibit A any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Contractor shall pay the minimum rate of wages specified therein for the classification which most nearly corresponds to services described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment.
DIR REGISTRATION
Consultant shall be currently registered with the Department of Industrial Relations and qualified to perform public work consistent with Labor Code section 1725.5, except in limited circumstances as set forth in Labor Code section 1771.1. No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to California Labor Code Section 1725.5. Consultant agrees, in accordance with Section 1771.4 of the California Labor Code, that if the work under this Agreement qualifies as public work, it is subject to compliance monitoring and enforcement by the Department of Industrial Relations.