HomeMy WebLinkAbout4.11 AssocROW DubBlWidSUBJECT:
CITY CLERK
File # 600-30
AGENDA STATEMENT
CITY COUNCTL MEETING DATE: April 2, 2002
Amendment to Consulting Agreement with Associated Right of
Way Services, Inc. to Perform Right-of-Way Services for the Dublin
Boulevard Widening Project from Village Parkway to Sierra Court
Report Prepared by: Lee S. Thompson, Public Works Director
ATTACHMENTS:
1)
2)
Resolution amending agreement, together with
Exhibit A - Request from ARWS for Additional Funds
Original Agreement dated March 2001
RECOMMENDATIONs/
FINANCIAL STATEMENT:
Adopt Resolution approving Amendment No. 1 to Consulting
Agreement with Associated Right of Way Services, Inc.
In the original agreement, .the cost for right-of-way services provided
by.Associated Right of Way Services, Inc. (ARWS), included
appraisals, acquisition, and right-of-way coordination needed for the
Dublin Boulevard Widening project from Village Parkway to Sierra
Court. The cost for these services was based on time and materials
in an amount not to exceed $82,500. ARWS is requesting an
additional $5,000 to complete the acquisition of 10 parcels needed
for the project. The consultant cost is reimbursable under the State
Transportation Improvement Program (STIP) guidelines and there
are adequate funds in the grant to perform right-of-way services.
DESCRIPTION: ARWS is approaching the completion of right of way acquisitions
associated with the Dublin Boulevard Widening project. The consultant's level of effort has increased
due to prolonged negotiations and contacts with some of the property owners. In the case of one parcel, it
has been necessary to file for Condemnation.
ARWS has also performed an additional appraisal for a Temporary Construction Easement on one parcel,
additional negotiations for Public Service Easements on two parcels, and preparation of documents
necessary to satisfy Caltrans' right of way certification requirements and final reports.
ARWS is requesting an additional $5,000 to complete performing right-of-way services needed for the
Dublin Boulevard Widening project. Staff concurs with this request and has determined that adequate
funds are available from the STIP grant to perform these services.
Staffrec0mmends that the City Council adopt the resolution amending the agreement with ARWS.
COPIES TO: Larry Castellanos, AR/WS
ITEM NO. _~~
g:\engr-contract\arws\agst arws Dublin Blvd VP-Sierra Amend 1
RESOLUTION NO. - 02
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AMENDMENT TO AGREEMENT WITH ASSOCIATED RIGHT OF WAY
SERVICES, INC., FOR RIGHT-OF-WAY SERVICES FOR THE WIDENING OF
DUBLIN BOULEVARD FROM VILLAGE PARKWAY TO SIERRA COURT
WHEREAS, the City Council of the' City of Dublin approved on February 6, 2001, an agreement
with Associated Right of Way Services, Inc. (ARWS) for right-of-way services; and
WHEREAS, ARWS is approaching the completion of the right-of-way acquisitions associated
with the Dublin Boulevard Widening project and the consultant's level of effort has increased due to
prolonged negotiations and additional appraisals performed; and
WHEREAS, the cost for ARWS's services has reached the amount of $82,500 allotted under said
agreement, and is requesting an additional $5,000 to complete the necessary right-of-way services; and
WHEREAS, adequate funds are available to perform these additional services through the State
Transportation Improvement Program grant;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby
approves Amendment No. 1 to the agreement with ARWS t° include an additional $5,000 to the
agreement per ARWS Memorandum dated February 11, 2002, which is attached hereto as "Exhibit A".
BE IT FURTHER RESOLVED that the Mayor is authorized to execute the ARWS Memorandum.
PASSED, APPROVED AND ADOPTED this 2nd day of April, 2002.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Mayor
City Clerk
g:lengrlarws~reso arws Dublin Blvd Widening VP to Sierra-Amend 1
TO:
FROM:
PROJECT:
SUBJECT:
DATE:
ASSOCIATED
RIGHT OF WAY
SERVICES, INC
EXHIBIT 'A' TO RESOLUTION
MEMORANDUM
Ferdinand Del Rosario, P.E.
City of Dublin .
Larry Castellanos _~ff~xUWS
City of Dublin
Dublin Boulevard Widening Project
Request for Additional Funds
February 11, 2002
' 02 Offices Located in
Napa
Pleasant Hill
Santa Rosa
[ Via Fax and Mail J Tracy
RECEIVED
This is a format we use to communicate and track changes in scope of services and level of effort from those
am,~p,te,,, },,~fl~,,~o,,. or agreed upon, when entering h-itc thc contract for serwlccs or o~,,o,.,~u~., cx~a ..,,,,~
authorizations.
Type of Change:
[] Level0fBffort ~'] Scope of Services i"'i Other
Increased level of effort including prolonged negotiations, correspondence, and contacts with Sandelman's
representative played a role in exhausting the budget. These negotiations included an extraordinary number of
conference calls with the City and legal counsel, in addition to correspondence and discussions with the property
owner's representative. Additionally as a result of the negotiations with the Grantor this parcel required far more
than typical coordination with the title company. Follow up work on this acquisition as well as others are still
anticipated.
Increased level of effort also attributed to an additional appraisal of a Temporary Construction Easement on the
CSAA parcel and additional negotiations for Public Service Easements on two parcels.
Out of Scope Services include assistance in the preparation of documents necessary to satisfy the Caltrans
Certification requirements. This included coordination with City, Project Engineer and Caltrans Local Public
Agency. As well as follow up with and hand carrying of documents to the Caltrans Local Public Agency
representative.
Follow up' work to meet Caltrans Certification 2 requirements is still necessary, as well as additional services to
process approved doemnents through escrow is anticipated.
Budeetarv Chance:
r"] No Change At This Time ['~ Additional Funds Needed r-I Reduction of Budget
Limited continued consultation is anticipated and an additional $5,000 is requested to continue services.
Additional Funds Authorized
CITY OF DUBLIN
By: Date:
Title:
cc: Denise Lucas - AR/WS Corporate Office &/Dublin/Change of Scope-Budget Memo/bt/021102
3496 Buskirk Avenue, Suite 105 · Pleasant Hill, CA 94523
Phone 925.947.5626 · TollFree 800.558.5151 · Fax 925.947.2095 ° Email arws@arws.com
STANDARD
CONSULTING ENGINEERING SERVICES AGREEMENT
THIS AGREEMENT is made at Dublin, California, as of February 6, 2001, by and
between the CITY OF DUBLIN, a municipal corporation ("City"),i.and Associated Right of Way Services,
Inc. ("Consultant"), who agree as follows:
1. SERVICES. Subject to the tei'ms and conditions set forth in this Agreement, Consultant
shall provide to City the services described in Exhibit A. Consultant shall provide said services at the
time, place, and in the manner specified in Exhibit A.
2. PAYMENT. City shall pay Consultant for services rendered pursuant to this
Agreement at the time and in the manner set forth in Exhibit B. The payments specified in Exhibit B shall
be the only payments to be made to Consultant for services rendered pursuant to this Agreement.
Consultant shall submit all billings for said services to City in the manner specified in Exhibit B; or, if no
manner be specified in Exhibit B, then according to the usual and customary procedures and practices
which Consultant uses for billing clients similar to City.
3. FACILITIES AND EQUIPMENT. Except as set forth in Exhibit C, Consultant shall, at
its sole cost and expense, furnish all facilities and equipment which may be required for furnishing
services pursuant to this Agreement. City shall furnish to Consultant only the facilities and equipment
listed in Exhibit C according to the terms and conditions set forth in Exhibit C.
4. GENERAL PROVISIONS. The general provisions set forth in Exhibit D are part of
this Agreement. In the event of any inconsistency between said general provisions and any other terms or
conditions of this Agreement, the other term or condition shall control insofar as it is inconsistent with the
general provisions.
5. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference
incorporated herein.
6. SUBCONTRACTING. The Consultant shall perform the work contemPlated with
resources available within its own organization and no portion of the work pertinent to this contract shall
be subcontracted without written authorization by the City, except that which is expressly identified in
the Consultant's proposal.
7. CHANGES. City may.from.time to time require changes in the scope of the set'rices by
Consultant to be performed under this Agreement. Such changes, including any change in the mount of
Consultant's compensation which are mutually agreed upon by City and Consultant, shall be effective as
amendments to this Agreement only when in writing.
8. RESPONSIBLE CHARGE. Consultant shall assign a project manager(s) to the project
for the duration of the project. There shall be no change in the Project Manager or members of the project
team without prior written approval by the City. The Project Manager for Consultant shall be William S.
Tannenbanm.
Agreement
Page 1 of 2
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9. CONTRACT ADMINISTRATION. This Agreement shall be administered by' LEE S.
THOMPSON ("Administrator"). Ail correspondence shall be directed to or through the Administrator or
his or designee.
10. NOTICES. Any written notice to Consultant shall be sent to:
William S. Tannenbaum, President
Associated Right of Way Services, Inc.
3496 Buskirk Avenue, Suite 105
Pleasant Hill, CA 94523
Any written notice to city shall.be sent to:
Lee S. Thompson
Director of Public Works/City Engineer
I00 Civic Plaza
Dublin, CA 94568
Executed as of the day first above stated:
Attest:
CITY OF DUBLIN,
a muni~/~ corpo~t)o;/~
By. AD~ ~' l14y
- "'d w ¥ "~ity"
By
Approved as to form:
City Attorney
Agreement
Page 2 of 2
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EXIIIBIT A
SCOPE OF SERVICES AND SCHEDULE
Per Associated Right of Way Services, Inc., proposal for consulting services dated
January 24, 2001 (ATTACHED).
AR/WS schedule for project to follow schedule outline in City Request for Proposal
dated January 10, 2001, subject to the following assumptions:
1. 30 day Orders for Possession, if necessary. City to confirm with legal counsel.
Timely initiation of eminent domain actions, if needed.
2. No lessee clearances or approvals.
3. No relocations.
4. Delivery of adequate appraisal maps for all property requirements by February 8,
2001.
5. Completion of deeds and legal descriptions (including TCEs and PLIEs) before offers
are made, no later than March 30, 2001.
6. Expedited City approval of appraisals and offer packages.
Exhibit A
Page 1 of 1
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ASSOCIATED
RIGHT OF WAY
SERVICES, INC.
Confidential for City Use Only
Scope Summary and Budget Estimate
City of Dublin
January 31, 2001
Good for 30 Days
Offices located in
Napa
Pleasant Hill
Santa Rosa
Tracy
Project:
Parcels:
Assignment S~)mmary:
Categories / Budget Estimate
1. Appraisals - Lump Sum
2. Negotiations
Time Charged
3. Escrow Monitoring
Time Charged
4. Condemnation Assistance
Time Charged
5. Relocation Services
Time Charged
o
Project Management,
Coordination, Planning
and General Consultation
Time Charged
Word ProceSsing, Secretarial
Support and Project Tracking
Time Charged
City of Dublin
Dublin Boulevard Widening
Village Parkway to Sierra Court
Parcels Identified on Attachment 1
Acquisition appraisals and negotiations to acquire real property from owners.
Coordinate and manage work. Prepare Acquisition Status Reports (ASR) and
conduct right ofway progress meetings. Coordinate with eminent domain counsel
as necessary. Complete right of way tasks necessary for project delivery. (See
General Assumptions and Limitations included by reference.)
Appraise (10) parcels as identified on the January 8, 2001, preliminary
right of way map provided by City. (See Attachment 1 for Parcel List.)
No full before and after or severance damage/benefits
analysis. Includes access easement on Bemal Investments and up to
three (3) public utility easements.
Estimated up to 10 Fee Simple Parcels (9 owners)
(Limited Multiple Vestings) No lessee clearances or loss
of business goodwill.
Escrow instructions to be prepared by City selected Title Company
with AR/WS assistance. City to approve escrow instructions and
instruct as to "subject to" title exceptions.
Condemnation support services and general legal support services.
Includes contacts and conferences with eminent domain counsel on
an on-going basis and/or as directed. (Excludes expert witness,
testimony, depositions, pre-trial preparation.)
(Not Included)
$20,000
$35,000
$ 3,500
$ 4,000
N/A
Ongoing, on an as needed basis, and as requested by City or
designee or other project team members.
$13,500
$ 6,500
Estimated Budget
Recommended 25% Contingency but not included in budget.
$82,500
Cori, omte Office
3496 Buskirk Avenue, Suite 105 · Pleasant Hill, CA 94523
Phone '925.947.5626 ° TollFree 800.558.5151 ° Fax 925.947.2095 oEmail arws@arws.com
General Assumptions and Limitations
1. All acquisition documents and transmittals to be approved by City staff prior to use. Any administrative settlements and/or contract
addendums to be pre-approved by City.
' 2. City to provide written appraisal approval. City to sign Offers of Just Compensation. City letterhead to be used for offers.
3. All services to be provided pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act and related
guidelines and regulations.
4. City to provide adequate appraisal maps, right of way plats, construction plans, and preliminary title reports.
5. Change Orders to be in writing.
6. Negotiating for agreements for Possession and Use, Rights of Entry, and Permits to Enter are not included with this Proposal;
however, they can be provided.
7. Legal descriptions and deed face sheets prepared by City and/or title company suitable for recordation.
8. City to provide cost to cure and replacement-in-kind estimates and/or policy as necessary.
9. Except for appraisals and relocation plans, which are lump sum, this is a "time charged" contract in accordance with the AR/Ws Fee
Schedule. The Budget Estimate may require revision if there is added or out of scope work or significant level of effort changes.
10. Work to begin upon Notice to Proceed in writing from City to AR/WS.
11. Budget to be reviewed at 50 % and 75 % expenditure levels.
12. City to designate a staff administrator for AR/WS coordination.
13. Timely review, responses, and approvals by City staff.
14. condemnation, if necessary, by City:
15. City to obtain all preliminary title reports at City's cost. Escrow costs, if any, by City. Escrow instructions by Title Company with
AR/WS coordination. City to approve escrow instructions including any "subject to" title exceptions.
16. Team composition may be adjusted by AR/WS depending upon number of parcels assigned by City and services requested.
17. The Budget Estimate contained herein is good for thirty (30) days.
18. City to provide environmental impact report or statement with mitigation measures outlined as these may effect the appraisal and/or
acquisition process. City to provide construction plans.
19. AR/WS has estimated the costs for this project. Variables encountered during the course of services (e.g. protracted negotiations, title
complications, multiple vestings, engineering issues) may require additional efforts resulting in an additional increased budget
allocation. Please be advised that this is not a gnaranteed budget or guarantee of property_ rights requested.
20. AR/WS will, upon written or verbal notice from City suspend, delay, or interrupt all or a part of the scope of services. In such event,
AR/WS will resume the scope of services upon written notice from City and an appropriate extension of time and costs will be
mutually agreed upon and added to AR/WS' time of performance.
21. City will give prompt notice to AR/WS whenever City observes or becomes aware of any development that affects the scope or
timing of AR/WS' Scope of Services, or any defect in the work of AR/WS.
22. City will provide AR/WS all technical data in its possession, including, but not limited to, previous reports, maps, surveys, borings,
and all other information relating to AR/WS' Scope of Services on the Project. AR/WS will reasonably rely upon the accuracy,
timeliness and completeness of the information provided by City.
Attachment 1
1. DSRSD (1000)
2. Berwick (1001)
3. Bonanza Markets (1003)
4. Sanford Sandelman, Trustee (1005)
5. Delanoy, Peter N. (1006 &
Delanoy, Peter N. 1007)
6. Bemal Investment, Inc. (1008)
includes access easement
7. Kent, E. Greg (1009)
8. Zone 7 (Alamo Creek)
9. Zone 7 (Alamo Creek)
EXHIBIT B
PAYMENT SCHEDULE
City shall pay Consultant based on time and material an amount not to exceed the
total sum of Eighty Two Thousand Five Hundred Dollars ($82,500) for services to be
performed pursuant to this Agreement. Consultant shall submit invoices monthly based
on the cost for services performed in accordance with the Scope Summary and Budget
Estimate. Invoices shall be paidwithin 30 days of receipt by City.
The total sum stated above shall be the total which 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 unless such extra service and the price therefor is agreed to in writing
executed by the City Manager or other designated official of City authorized to obligate
City thereto prior to the time such extra service is rendered and in no event shall such
change order exceed twenty-five percent (25%) of the initial contract price.
The services to be provided under this Agreement may be terminated without
cause at any point in time in the sole and exclusive discretion of the City. If the
Agreement is terminated by City, Consultant shall be entitled to receive just and equitable
compensation for any satisfactory work completed on such documents and other
materials to the effective date of such termination. In that event, ali finished and
unfinished documents and other materials shall at the option of the City, become City's
sole and exclusive property. Consultant hereby expressly waives any and all claims for
damages or compensation arising under this Agreement. Consultant shall maintain
adequate logs and timesheets in order to verify costs incurred to date.
Exhibit
Page 1 of
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EXHIBIT C
City shall furnish physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary for Contractor's use while consulting with city employees
and reviewing records and the information in possession of City. The location, quantity, and
time of furnishing said physical facilities shall be in the sole discretion of City. In no event shall
City be obligated to furnish any facility which may involve incurring any direct expense,
including, but not limiting the generality of this exclusion, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
Exhibit C
Page 1 of 1
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EXHIBIT D
GENERAL PROVISIONS
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 engineering services rendered
pursuant to this Agreement; however, City shall not have the fight to control the means by which
Consultant accomplishes services rendered pursuant to this Agreement.
LICENSES; PERMITS; ETC. Consultant represents and warrants to City that he has ali licenses,
permits, qualifications and approvals of whatsoever nature which are legally required for
Consultant to practice his profession. Consultant represents and warrants to City that Consultant
shall, at his sole cost and expense, keep in effect at all times during the term of this Agreement
any licenses, permits, and approvals which are legally required for Consultant to practice his
profession.
TIME. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary for satisfactory performance of Consultant's
obligations pursuant to this Agreement.
INSURANCE REQUIREMENTS. Consultant shall procure and maintain for the duration of the
contract insurance against claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the work hereunder by the Consultant, his agents,
representatives, employees or subcontractors. The cost of such insurance shall be included in the
Consultant's bid.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
(1)
Insurance Services Office form number GL 0002 (Ed. 1/73) coveting
comprehensive General Liability and Insurance Services Office form number GL
0404 covering Broad Form Comprehensive General Liability; or Insurance
Services Office Commercial General Liability coverage ("occurrence" form CG
0001).
(2)
(3)
Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile
Liability, code 1 "any auto" and endorSement CA 0025.
Worker's Compensation insurance as required by the Labor Code of the State of
California and Employers Liability Insurance.
B. Minimum Limits of Insurance. Consultant shall maintain limits no less than:
Exhibit D
Page 1 of 5
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(1)
General Liability: $1,000,000 combined single limit per occurrence for bodily
injury, personal injury and property damage. If commercial General Liability
Insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to this projeet/location or the general
aggregate limit shall be twice the required occurrence limit.
(2)
Automobile Liability: $1,000,000 combined single limit per accident for bodily
injury and property damage.
(3)
Workers Compensation and Employers Liability: Workers Compensation limits
as required by the Labor Code of the State of California and Employers Liability
limits of $1,000,000 per accident.
Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must
'be declared to and approved by the City. 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, officials and employees; or the Consultant shall procure a bond guaranteeing
payment of losses and related investigations, claim administration and defense expenses.
Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the
following provisions:
(I) General Liability and Automobile Liability COVerages.
(a)
The City, its officers, officials, employees and volunteers are to be covered
as insureds as respects: liability arising out of activities performed by or
on behalf of the Consultant; products and completed operations of the
Consultant, premises owned, occupied or used by the Consultant, or
automobiles owned, leased, hired or borrowed by the Consultant. The
coverage shall contain no special limitations on the scope of the protection
afforded to the City, its officers, officials, employees or volunteers.
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.
Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the City, its officers, officials, employees or
volunteers.
Exhibit D
Page 2 of 5
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Fo
The Consultant's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of
the insurer's liability.
(2) Worker's Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its
officers, officials, employees and volunteers for losses arising from work
performed by the Consultant for the City.
(3) Professional Liability.
Consultant shall carry professional liability insurance in an amount deemed by the
City to adequately protect the City against liability caused by negligent acts, errors
or omissions on the part of the Consultant in the course of performance of the
services specified in this Agreement.
(4) All Coverages.
Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, cancelled by either party, reduced in
coverage or in limits except after thirty (30) days prior written notice by certified
mail, return receipt requested, has been given to the City.
Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of
no less than A:VIII.
Verification of Coverage. Consultant shall furnish City with certificates of insurance and
with original endorsements effecting coverage required by this clause. The certificates
and endorsements for each insurance policy are to be signed by a person authorized by
that insurer to bind coverage on its behalf. The certificates and endorsements are to be
received and approved by the City before work commences. The City reserves the right
to require complete, certified copies of all required insurance policies, at any time.
The Risk Manager of City may approve a variation of those insurance requirements upon
a determination that the coverages, scope, limits and forms of such insurance are either
not commercially available or that the City's interests are otherwise fully protected.
CONSULTANT NO AGENT. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent.
Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to
any obligation whatsoever.
Exhibit D
Page 3 of 5
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10.
11.
ASSIGNMENT PROHIBITED. No party to this Agreement may assign any right or obligation
pursuant to this Agreement. Any attempted or purported assignment of any fight or obligation
pursuant to this 'Agreement shall be void and of no effect.
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 removal of any such persons, Consultant shall, immediately upon
receiving notice from City of such desire of City, cause the removal of such person or persons.
STANDARD OF PERFORMANCE. Consultant shall perform all services required pursuant to
this Agreement in the manner and according to the standards observed by a competent
practitioner of the prOfession in which Consultant is engaged in the geographical area in which
Consultant practices his profession. All instruments of service of whatsoever nature which
Consultant delivers to City pursuant to this Agreement shall be prepared in a substantial, first
class and workmanlike manner and conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
HOLD HARMLESS AND RESPONSIBILITY OF CONSULTANTS. Consultant shall take all
responsibility for the work, shall bear all losses and damages directly or indirectly resulting to
him, to any subconsultant, to the City, to City officers and employees, or to parties designated by
the City, on account of the negligent performance or character of the work, unforeseen
difficulties, accidents, occurrences or other causes predicated on active or passive negligence of
the Consultant or of his subconsultant. Consultant shall indemnify, defend and hold harmless the
City,. its officers, officials, directors, employees and agents from and against any or all loss,
liability, expense, claim, costs (including costs of defense), suits, and damages of every kind,
nature and description directly or indirectly arising from the negligent performance of the work.
This paragraph shall not be consumed to exempt the City, its employees and officers from its own
fraud, willful injury or violation of law whether willful or negligent. For purposes of Section
2782 of the Civil Code the parties hereto recognize and agree that this Agreement is not a
construction contract. By execution of this Agreement Consultant acknowledges and agrees that
he has read and understands the provisions hereof and that this paragraph is a material element of
consideration.
Approval of the insurance contracts does not relieve the Consultant or subconsultants from
liability under this paragraph.
GOVERNMENTAL REGULATIONS. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant shall comply with all applicable
rules and regulations to which City is bound by the terms of such fiscal assistance program.
DOCUMENTS. All reports, data, maps, models, charts, designs, plans, studies, surveys,
photographs, memoranda or other written documents or materials prepared by Consultant
pursuant to this Agreement shall become the property of City upon completion of the work to
performed hereunder or upon termination of the Agreement. No such materials or properties
be
Exhibit D
Page 4 of 5
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produced in whole or in part under this Agreement shall be subject to private use, copyrights,
or patent rights by Consultant in the United States or in any other country without the express
written consent of City. City shall have unrestricted authority to publish, disclose (as may be
limited by the provisions of the California Public Records Act), distribute, and otherwise use,
copyright or patem, in whole or in part, any such reports, studies, data, statistics, forms or other
materials or properties produced under this Agreement.
Exhibit D
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