Meeting Date: June 25, 2002
Subject/Title: Approve a contract for Construction Management Services and Professional Services with The Covello Group, Inc. for the Sunset Industrial Complex, CIP Project No. 336-3128.
Submitted by: Engineering: B. Grewal/P. Eldredge
Approved by: John Stevenson, City Manager
Execute an agreement between The Covello Group, Inc. and the City of Brentwood to provide Construction Management Services for the Sunset Industrial Complex Project, CIP Project No. 336-3128, including but not limited to constructability and biddability reviews, contract administration, cost control, master schedule, resident engineering, inspection, testing, and quality control and authorize the City Manager to execute change orders up to 20% of the contract amount.
On November 28, 2000, the City Council authorized staff to execute a contract with McGill Martin Self, Inc. to design the Sunset Industrial Complex, CIP Project No. 336-3128.
The Sunset Industrial Complex project, CIP Project No. 336-3128, is out to bid and scheduled to open on June 26, 2002. This project is large enough to require a full time on-site construction manager (CM) as well as the associated inspection team. The project is complex due to all the intricacies involved, the overall size of the project as well as a significant amount of coordination between this project and the Wastewater Treatment Plant Expansion Project that is currently on going. Coordination between these two projects will minimize the possibility of each project delaying the other and minimize any potential financial risk for the City. The Covello Group, Inc. was selected for the CM duties for the Wastewater Treatment Plant through RFP process. To date they have done an outstanding job in managing the construction site and are very familiar with all aspects of the project and schedule. Due to this outstanding work, knowledge of the treatment plant and the proximity of the treatment plant to the Industrial Complex, The Covello Group was the obvious choice for staff.
The proposed amount as shown on the attached scope of work is $198,656, which is approximately 5.6% of the engineer’s construction estimate of $3.8 million. This is well within the range of industry standards and is a little low compared to other projects of this size and nature. The City is realizing a savings due to having one CM on both projects and being able to share overhead costs between the two. This amount has been budgeted in the CIP budget under CIP Project No. 336-3128.
AGREEMENT FOR PROFESSIONAL SERVICES
OF THE COVELLO GROUP, INC.
This Agreement, made and entered into this 25th day of June 2002, by and between the CITY OF BRENTWOOD municipal corporation existing under the laws of the State of California, hereinafter referred to as “CITY”, and The Covello Group, Inc., with offices located at 43 Quail Court, Suite 111, Walnut Creek, California, 94596 hereinafter referred to as CONSULTANT”.
A. CITY desires certain professional consultant services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these 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 are to provide to the CITY, professional construction management services as described in Exhibit A for the Sunset Industrial Complex Improvements Project, CIP 336-3128.
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 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.
It is understood that Gary Skrel will be the designated representative providing services to the City and this designated representative shall not be replaced without the City’s approval.
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 June 25, 2002 and be completed on December 31, 2003.
SECTION 5 – PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request and CITY approval of the work performed. The CITY shall pay the CONSULTANT at the rates and for the hours actually performed by the CONSULTANT in accordance with the rates set forth in Exhibit “A” not to exceed $198,656.
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. Upon termination or expiration of this agreement, the obligations of the parties shall cease, save and except from those provided under Sections 7,8,10, 11, 12, 14, 15, and 16.
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. Use of the instruments of professional service by City for other than the project, is at CITY’S sole risk without legal liability or exposure 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.
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, in the performance of professional services, under this Agreement shall indemnify, defend, and hold harmless CITY, its directors, officers, employees and agents from any claim, loss, injury, damage, and expense and liability to the extent arising out of the negligence, errors, omissions, or wrongful acts of CONSULTANT, its employees, subcontractors, or agents. For liability for other liability arising out of professional services, CONSULTANT shall indemnify, defend, and hold harmless, CITY, its directors, officers, employees, and agents from any loss, injury, damage, and expense and liability resulting from injury to or death of any person and loss of or damage to property, or claim of such injury, death, loss or damage, caused by an act or omission in the performance under this Agreement by CONSULTANT, its employees, subcontractors, or agents, except for any loss, injury, or damage caused by the active negligence or willful misconduct of personnel employed by CITY.
SECTION 12 – INSURANCE
The CONSULTANT shall provide and maintain:
A. Commercial General Liability Insurance, occurrence form, with a limit of not less than $1,000,000.00 each occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit.
B. Automobile Liability Insurance, occurrence form, with a limit of not less than $1,000,000.00 each occurrence. Such insurance shall include coverage for owned, hired, and non-owned automobiles.
C. Errors and omissions insurance in the minimum amount of $1,000,000.00 aggregate.
D. Workers Compensation in at least the minimum statutory limits.
E. General Provisions for all insurance. All insurance shall:
1. Include the City of Brentwood, its elected and appointed officers, employees, and volunteers as additional insureds with respect to this Agreement and the performance of services in this Agreement. The coverage shall contain no special limitations on the scope of its protection to the above-designated insureds except for Workers Compensation and errors and omissions insurance.
2. Be primary with respect to any insurance or self-insurance programs of City, its officers, employees, and volunteers.
3. Be evidenced, prior to commencement of services, by properly executed policy endorsements in addition to a certificate of insurance.
4. No changes in insurance may be made without the written approval of the City Attorney's Office.
SECTION 13 - NONASSIGNABILITY
Personal Services of Consultant: Both parities 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.
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 and will perform the work agreed to be done under this agreement utilizing a specialist standard of care and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, 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 same or of any other 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 deeded to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement of any applicable law or ordinance.
SECTION 16 - COSTS AND ATTORNEYS FEES
Attorney fees in an amount not exceeding $85 per hour per attorney, and 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 the agreement. The above $5000 limit is the total of attorneys’ 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 attorneys’ fees arising out of an action, or actions to enforce the provisions of this agreement.
SECTION 17 - NON-DISCRIMINATION
CONSULTANT warrants that 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.
SECTION 18 - 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 California State Board of Mediation and Conciliation, or other agreed-upon service. The mediator shall be selected by a "blindfolded" process.
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 19 - ARBITRATION
After mediation above, and upon agreement of the parties, any dispute or claim arising out of or relating to this agreement may be settled by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The costs of arbitration shall be borne equally 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: City of Brentwood
150 City Park Way
Brentwood, CA 94513
To CONSULTANT: The Covello Group, Inc.
43 Quail Court, Suite 111
Walnut Creek, CA 94596
SECTION 22 – AGREEMENT CONTAINS ALL
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
SECTION 23 – GOVERNING LAW
This agreement shall be governed by the laws of the State of California.
IN WITNESS WHEREOF, CITY and CONSULTANT have executed this agreement the day and year first above written.
CITY OF BRENTWOOD The COVELLO GROUP, Inc.
John Stevenson, City Manager
___________________________ (Print Name)
APPROVED AS TO FORM:
Dennis Beougher, City Attorney
(Scope of Work - Fees)