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HomeMy WebLinkAbout4.09 TrafficEngSvcsOmniMea C IT Y C L E R K File # D!l;][{2]Ø]·k31ID. . AGENDA STATEMENT CITY COUNCIL MEETING DATE: June 21, 2005 SUBJECT: Approval of Consulting Services Agreement with Omni-Means, LTD, for Traffic Engineering Services Report Prepared by; Melissa Morton, Public Works Director ATTACHMENTS: 1) 2) 3) Resolution with Agreement Letter from Omni-Means Previous Agreement and Amendments Adopt the Resolution approving the Agreement. . Under this Agreement, Omni-Means, LTD, will provide traffic engineering services to the City based on the proposed rate schedule. Types of services to be provided are typically peer review, the preparation of traffic studies, or other traffic-related services associated with private development proj ects in eastern or downtown Dublin. Omni-Means will provide a not-to-exceed proposal for each specific private development review or traffic study. The cost of these services will be paid by developers. Omni-Means proposes an average rate adjustment of 4.6% for Fiscal Year 2005-2006, but future rate increases will be. governed by Section 2 of the Agreement, which specifies that .future adjustments shall be limited to the Consumer Price Index (Cpr) for Urban Wage Earners for the San Francisco-Oakland Bay Area as of February of each year. DESCRIPTION: The City has contracted with Omni-Means, LTD, since 1996 for traffic engineering services. Services provided to date in FY 2005-2006 have primarily been in the area of peer review, preparing private development traffic studies, and other traffic-related services associated with private development projects. Staff is proposing a new two-year Agreement with Omni-Means in order to incorporate amended contract language. The term of the Agreement will be for two years, expiring on June 30, 2007, with a rate adjustment allowed for the second year of the Agreement. Omni-Means is proposing a rate increase for e ____~__.___________w_~~_~________~__________w_~_~_____----,---- G:\CONSULT ANTSlomnilAGST NEW AGMT 05.o6.doc COPIES TO: George Nickelson, Omni-Means ITEMNO.~ \ ðb ";l- Fiscal Year 2005-2006 of 4.6%. Future adjustments will be limited under Section 2 of the Agreement to the cpr as of Febmary of each year. The total not-to-exceed amount of this Agreement will be $200,000 for the two-year term. Under this Agreement, Omni-Means will provide specific per-task estimates for each project and obtain . written authorization from the City before proceeding with the work. The cost of these services will be paid by developers. . The work provided to date by Qrnni-Means, LTD, has been satisfactory, professional, and competitive, and Staffrecotnmends that the City Council adopt the Resolution approving the Agreement. . . Page 2 "b;L ¡'b¿'~ RESOLUTION NO. "05 · A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING AGREEMENT WITH OMNI-MEANS, L TD FOR TRAFFIC ENGINEERING SERVICES WHEREAS, Omni-Means, LTD, has provided traffic engineering services to the City since 1996; and WHEREAS, the City desires to continue using Omni-Means' services; and WHEREAS, it is proposed to enter into a new two-year Agreement in order to incorporate amended contract language; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City ofDllblin does hereby approve the Agreement with Omni-Means, LTD, attached hereto as "Exhibit A." BE IT FURTHER RESOLVED that the Mayor is authorized to execute the Agreement. · PASSED, APPROVED AND ADOPTED this 21st day ofJUIle, 2005. AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk O:\CONSULTANrS\oJ:11rIi\rt:,!¡ö new agmt 05~06_dac · /P..ZI-()S +D¡ !TrACmNT I. 2"b2;/:f . CONSUL TINGSERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND OMNI·MEANS, LTD · THIS AGREEMENT for consulting services is made by and between the CITY OF DUBLIN ("City") and Omni-Means, L TO ("Consultant"), as of June 21, 2005. 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 at the time and place and in the manner specified therein. In the event of a confiict 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 date first noted above and shall end on June 30,2007, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section B. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section B. 1.2 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 its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. · 1.3 Assi¡:¡nment of Personnel. Consultant shall assign only competent personnel to perform services pursuant tothis Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice. from City of such desire of City, reassign such person or persons, 1.4 . Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided In Section 1.1 above and to satisfy Consultant's obligations hereunder. Consultant shall not be responsible for delays beyond Consultant's reasonable control. Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed Two Hundred Thousand Dollars and No Cents ($200,000), notwithstanding any contrary indications that may be contained In Consultant's per-task 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 per-task proposal, 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. · EXBIBITA to l4e7?_e¿olu:.b'¡fl'l Consulting Services Agreement between City of Dublin and Omni-Means, LTD · · · '3~2'f Except as specifically authorized by City, ConsLlltant shall not bill City for duplicate services performed by more than one person. ConsLlltant 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 salaoes and benefits of employees and subcontractors of ConsLlltant. Consequentiy, 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: · Clear numerical identification, with no duplication of numbering; · 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 boef description of the work, and each reimbursable expense; · The total number of hours of work performed LInder the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hoursof work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds BOD hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A; · The Consultant's signature. 2.2 - Monthlv Pavment. 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 compiles with all of the requirements above to pay Consultant. 2.3 Total Pavment. 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. Consuiting Services Agreement between City of Dublin and Omni-Means, L TO June 21, 2005 Page 2 of 14 ~¿""f 2.4 Hourlv Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B. e 2.5 Reimbursable Expenses. Reimbursable expenses under this Agreement are defined as miieage and extraordinary binding and printing costs, and shall be included in the total amount of compensation provided under this Agreement. ·2.6 Payment of Taxes. Consultant is solely responslbie for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.7 Pavment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section B, 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 in order to verify costs incurred to that date. 2.B 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. 2.9 Rate Adjustments. Consultant will be entitled to an annual rate adjustment upon each annual anniversary of this Agreement, the amount 6f said increase to be approved by the City. The base for computing the adjustment shall be the Consumer Price Index for Urban . Wage Earners for the San Francisco-Oakland Bay Area published by the U.S. Department of Labor, Bureau of Labor Statistics (Index) which is published for the year ending in February. If the Index has increased over the Index for the prior year, the rates for .the following year shall be established by multiplying the rates for the current year by a fraction, the numerator of which is the Renewal Index and the denominator of which is the Index for the preceding year. In no case shall the adjusted rates be less than the initial rates as set forth in Exhibit B. A sample calculation Is set forth below. The Public Works Director shall calculate the adjusted rate on each anniversary date of this Agreement and shall provide notice to Consultant of such new rates. SAMPLE CALCULATION: (Using 1% index increase as an example) HOURLY CHARGE RATE INDEX INCREASE (Assuming 1%) 150 x .01'" 1.50 $150.00/hr 1.50/hr $151.50/hr Section 3. FACILITIES AND EQUIPMENT. Except as setforth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment thatmay be necessary to perform the services required by this Agreement. City shall make available to Consuitant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. e Consulting Services Agreement between City of Dublin and Omni-Means, L TO June 21, 2005 Page 3 of 14 5 Db 2"'1 · 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 fumishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to fumish 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 REQUIREMi;.NTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure "occurrence coverage' insurance 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, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in ail respects to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. -Th.e 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 thereof to City. Verification of the required insurance shall be submitted and made part onhis Agreement prior to execution. 4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability insurance for any and all persons employed directiy or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insyrance shall be provided with limits of not less than ONE MilLION DOLLARS ($1,000,000.00) per accident. In the altemative, Consultant may rely on a self-insurence program to meet those requirements, but only if the program of self.insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, empioyees, and voiunteers for loss arising from work performed under this Agreement. · An endorsement shali state that coverage shall not be canceied except after thirty (30) days'priorwritten notice by certmed mail, retum receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurerif such coverage is suspended, voided or reduced in coverage or in limits. 4.2 Commercial General and Automobile Liability Insurance~ · 4.2.1 General reaulrements. Consultant, at its own cost and expense, shali maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MilLION DOUARS ($1,000,000.00) per occurrence, combined singie limit coverage for risks associated with the work contemplated by this Agreement. If a Commerciai General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, Consulting Services Agreement between City of Dublin and Omni-Means, l TD June 21, 2005 Page 4 of 14 . u~-¡1 either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least . twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles. 4.2.2 Minimum scope of coveraae. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General liability occurrence form CG 0001 (ed. 11188) or Insurance Services Office form number GL 0002 (ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. . Automobile coverage shall be at ieast as broad as Insurance Services Office Automobile liability form CA 0001 (ed. 12190) Code 8 and 9 ("any auto"). No endorsement shall be attached limiting the coverage. 4.2.3 Additional reauirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following:. liability arising out of activities performed by or on behalf of Consultant, including the . insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. An endorsement must state that coverage is primary insurance with respect to the City and Its officers, officials, employees and volunteers, and that no Insurance or self-insurance maintained by the City shall be called upon to contribute to a ioss under the coverage. d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall not affect coverage provided to CITY and its officers, employees, agents, and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within . Consulting Services Agreement between City of Dublin end Omni-Means, LTD June 21, 2005 Page 5 of 14 · · ., · ì &"b 2"1f 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in ilmits. 4.3 Professional Liability Insurance. Consultant, at Its own cost and expense, shall maintain for the period covered by this Agreement professional liability Insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. 4.3.1 Any deductible or self-Insured retention shall not exceed $150,000 per claim. 4.3.2 An er¡dorsement shall state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30) days' prior wlitten notice by·certified mail, retum receipt requested, has been giver¡ to the City. 4.3.3 The following provisions shall apply if the professional liability coverages are wlitten on a claims-made form: a, The retroactive date of the polley must be shown and must be before the date of the Agreement. b, Insurance must be maintained and evidence of insurance must be provided for at least five. years after completion of the Agreement or the work, so long as commercially available at reasor¡able rates. c. If coverage is canceled or not renewed and it Is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Cor¡sultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and exper¡se, any ext~nded reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work ur¡der this Agreement. 4.4 All Policies Reaulrements. 4.4.1 Acceotabilitv of Insurers. All insurance required by this section is to be piaced with insurers with a Bests' ratir¡g of no less than A:VII. 4.4.2 Verification of coversae. Prior to beginning any work ur¡der this Agreement, Consultant shall furnish City with certificates of insurance and with anginal endorsements effecting coverage required herein. The certificates and Consulting Services Agreement between City of Dublin and Omni-Means, L TD June 21, 2005 Page 6 of 14 . Z~21 endorsements for each insurance poiicy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The City reserves the right to . require complete, certified copies of all required insurance poiicies, at any time. 4.4.3 Subcontractors. Consultant shall Include all subcontractors as insureds 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, 4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination tliat the coverages, scope, iimits, and forms of such Insurance are either not commercially avaiiable, or that the City's interests are otherwise fully protected. 4.4.5 Deductlbles and Self·lnsured Retentions. Consultant shall disclose to and obtain the approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Consultant may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self·insured retention levels with a requirement that Consultant procure a bond, guaranteeing payment of losses and related investigations, claim . administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Notice of Reduction in Coveraae. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have If Consultant faiis 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 altematives to other remedies City may have and are not the exclusive remedy for Consultant's breach: . Obtain such insurance and deduct 8Ild 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 Dublin and Omnl-Means, L TD June 21, 2005 Page 7 of 14 · · · ?Jao24 · Terminate this Agreement. Section 6. INDEMt:lIFICATION AND CONSULTANT'S RESPONSIBILITIES, Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and Its officials, officers, employees, agents, and volunteers from and against anyand all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, In whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of iaw arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contribuíed in no part to the injury, loss of life, damage to property, or vioiation of law. It is understood that the duty of Consultant to Indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the Califomia Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this Indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement. Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. . 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 Callfomia 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 IndeDendent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall riot be an employee of City, City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including . but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or emploYl'ie contributions for PERS benefits. Consulting Services Agreement between City of Dublin and Omni-Means, L TO June 21, 2005 Page 8 of 14 6.2 Section 7. 7.1 7.2 7.3 I D6b2"î Consultant No A~ent. 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. LEGAL REQUIREMENTS. Govemin~ Law. The laws of the State of Califomia shall govem this Agreement. Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the perf0l1l1anCe of the work hereunder. Other Governmental Re~ulatlons. To the extent that this Agreement may be funded by fiscal assistance from another govemmental 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. 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 addÎtioQ 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 Eaual ODDortunltv. Consultant shall not discriminate, on the basis of a person's race,rellgion, color, national origin, age. physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcon,tractor, bidder for asubcontract, 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. 7.4 Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Consulting Services Agreement between City of Dublin and Omni-Means, LTD June 21, 2005 Page 9 of 14 · · · · · · \ \üb'"2'1 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 documents, photogrephs, 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, Consultant understands and agrees that, If City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 AssiQnment and SubcontractlnQ. 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 Included, but not be limited to, the following: 6.6.1 Immediately terminate the Agreement; Consulting Services Agreement between City of Dublin and Omni-Means, L TO June 21, 2005 Page 10 of 14 l'2.ðb~ 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any . other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described In Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described In Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, .or any other doc.uments or materials, In electronic or any other form, that Consu Itant 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 three (3) years, or for any longer period required by: law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. . Consulting Services Agreement between City of Dublin and Omni-Means, L TD June 21, 2005 Page 11 of 14 . . e '3~'Z-" Section 1 0 MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party tothisAgreement brings any action, including an action for declaratory relief, to enforce or Interpret the provision of this Agreement, the prevaiiing party shall be entitled to reasonable attomeys' 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 aciion shali 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 Califomia. 10.3 Severabllltv. If a court of competent jurisdiction finds or-rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No ImøliedWalver 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 Asslans. 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 Recvcled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant In a "conflict of interest," as that term is defined in the Political-Reform Act, codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq; Consultant hereby warrants that It is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City, If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any rr¡anner in the forming of this Agreement. Consuitant understands that, if this Agreement is made in violation of Government Code §1090 et.saq., the entire Agreement is void and Consultant will not Consulting Services Agreement between City of Dublin and Omnl-Means, L TO June 21, 2005 Page 12 of 14 \ 4VÖ¡dt 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, foclis group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by Melissa Morton, Public Works Director ("Contract Administrator"), All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: George Nickelson OMNI-MEANS, LTD 1901 Olympic Boulevard, #120 Walnut Creek, CA 94596 Any written notice to City shall be sent to: Melissa Morton City of Dublin Public Works 100 Civic Plaza Dublin, CA 94568 e 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 reporUdesign preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with reporUdesign responsibility," as in the following example. Seal and S' nature reporUdesign responsibility. . Consulting Services Agreement between City of Dublin and Omni-Means, L TD June 21, 2005 Pa'ge 13 of 14 · · · I? 6f}-1 10.12 Inteqration. This Agreement, Including the scope of work attached hereto and incorporated herein as Exhibit A. and the Charge Rate Fee Schedule incorporated herein as Exhibit B, represents the entire and integrated Agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. CITY OF DUBLIN OMNI-MEANS, Janet Lockhart, Mayor H. ~ Attest: Kay Keck, City Clerk Approved as to Form: Elizabeth Silver, City Attorney G:\CONSUL TANTS\omnl\NEW consulting ,greo"",nt 0621 D5.doc Consulting Services Agreement between City of Dublin and Omnl-Means, L TO June 21, 2005 Page 14 of 14 EXHIBIT A SCOPE OF SERVICES IlP6b2.d1 To prol/lde general Traffic Engineering services for the two-year term commencing July 1, 2005, and ending June 30, 2007, which include traffic studies, peer review and other traffic-ralateEi services for private development projects. The scope of studies shall be detailed as specific projects are proposed to the City. The consultant shall provide the City with a noj-to-exceed fee for each study, peer rel/iew, and/or other traffic-related review. G:\CONSULTANTSlomn~NEW consulting 'greement OS2105.doc Consulting Services Agreement between City of Dublin and Omnl-Means, L TD--Exhlbit A June 21,2005 Page 1 of 1 . e . · · · EXHIBIT B COMPENSATION SCHEDULE n Wb'Z-t1 Compensation shall be paid per the Fee Schedule entitled, "2005-2006 Charge Rate Fee Schedule," attached hereto. G:\CONSULTANTS\omn~NEW consulting agmmsnt 062105.00c Consulting Services Agreement between City ofDublin and Omni-Means, L rD--Exhibit B June 21,2005 Page 1 of 1 1'B'b~~ · 2005-2006 CHARGE RATE FEE SCHEDULE OMNI·MEANS CLASSIFICATION 2005-2006 RATE Consult!!nt (Branch Manager) Traffic Engineer 3 $173 114 Technician 3 90 · G;ICONSULTANTSlomnl\exhlblt 1 ogreomont D5-06.doc · " ~R['nj:,I1)~Rr.'.~ · 1'1 Ob '2." AIëCI!IVED rEB I) 4 2005 PUBLIC WORKS February 3,2005 Ms. Melissa A. Morton Public Works Director City ofDublin 100 Civic Plaza Dublin, CA 94568 Subject: Billing Rate Comparison (2004-2005 to 2005-2006) Related to Omni-Means' Agreementfor TraffIC Engineering Services Dear Ms. Morton: The following is a billing rate comparison showing total hours billed during 2004-2005 (through January 28, 2005), 2004-2005 rates/stafftitles and proposed 2005-2006 rates/stafftitles: (:1Irr""t RM,,~/Titl,,< · Title 2004-05 Rates 2004-05 Hours Through 1/28/05 Total Cost Branch Mgr. (Nickelson) Traf. Engr. 3 (Galloway) Technician 3 (Tun1a) $173 $112 $84 3.5 32.0 60.0 $ 605.50 $ 3,584.00 S;~04000 . Totals: $ 9,229.50 Prnp()~tõ":ñ R::Itp.~!T1tlA~ Title 2005-06 Rates Hours Total Cost Percent IncreaselDecrease Branch Mgr. (Nickelson) $173 3.5 $ 605.50 no change Traffic Engr. 3 (Galloway) $114 32.0 $ 3,648.00 + 1.8% Tcclmician 3 (Tuma) $90 60.0 ~ ~ 400 00 +7.1% Totals: $ 9,653.50 +4.6% · ATTAUlDlENT ;Z. 1901 Olympic Boulevard. Suite 120 . Walnut Creek. CA 94596 ' (925) 935-:: ROSEVILLE REDDING VIS ALIA 20 fb 2.., February 3, 2005 Ms. Melissa Morton Page 2 As indicated in the above comparison Tables, our overall billings are projected to rise by 4.6%, comparing 2004-2005 rates/hours with the rates/hours proposed for fiscal year 2005-2006. As indicated, the change in overall costs primarily reflects a rate increase for our Technician 3 position (Mr. Robert Tuma). Mr. Tuma is a transportation planner who has more recently been conducting the actual traffic analyses/report writing (in addition to data collection). His hourly rate has therefore been adjusted to reflect these duties. We trust that the City will find these rateslhours acceptable. Please call us if you have any questions or comments. ~~ . George W. Nickelson,P.E. Branch Manager ~ · · · e . . .' Z.i 6ÔZ,¿¡ .~, , STANDARD CONSULTING ENGINEERING SERVICES AGREEMENT TInS AGREEMENT is made at Dublin, California, as oWN!; ~, 1996, by and between the CITY OF DUBLIN, a municipal corporation ("City"), and OMNI-M S ("Consultant"), who agree as follows: 1. SRRVlCRS. Subject to the terms 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 truGU1er specified in Exhibit A. 2. P A YMRNT. City shal1 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 ~uipment which may be required for furnishing services pursuant to this Agreement. City shall furmsh 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 Açreement. In the event of any inconsistency between said general provisions and any other terms or conditions oftbis 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. SUBCONTR ACTING. The Consultant shall perform the work contemplated with resources available within its own organi71ltion 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. CHANGRS. City may fÌ'Om time to time require changes in the scope of the services by Consultant to be performed under this Agreem.ent. Such changes, including any change in the amount 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. RRSPONSJRI.R 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 GEORGE W. NICKELSON. . . 9. CONTRACT ADMINISTRATION. This Agreemc:nt shall be administered by LEE S. THOMPSON ("Administrator"). All correspondence shall be directed to or through the Administrator or his or designee. Agreement Page 1 of2 06/04/96 ATTAtJDT 3. , ',. .- -. 2. ¿''b 2., 10. NOTICES. AD.y written notice to Consultant shall be sent to: ArJy written notice to Ci1y shall be sent to: Lee S, Thompson Director of Public Works/City Engineer P. 0, Box 2340 Dublin, CA 94568 Executed as of the day first above stated: CITY OF DUBLIN, a municipal corporation By2Jh ,J-c.4t " CitY" - . A....~j.ßc:L Cler ByJL(l~J- ~W - t9M.J/·l1tMS,iftJ. Approved as to form: ?:f ~ 71,' 4-<- City Attorney Agreement Page 2 of2 05/06/96 e . . · e e ,--.. "-, t.-¿~ EXHIBIT A SCOPE OF SERVICES AND SCHEDULE To provide traffic studies, peer review and other traffic related services for private development projects. The scope of studies will be detailed as specific projects are proposed to the City. The consultant shall provide the City with a not-to-exceed fee for each study, peer review, and/or other traffic related review. Exhibit A Page 1 of1 ".I;"'''Q,r¡~ ,-. ~.. 2'-f~21 EXHIBIT B PAYMENT SCHEDULE . City shall pay Consultant an amount not to exceed the total sum of SEVENTY THOUSAND DOLLARS ($70,000) PER YEAR for services to be performed pursuant to this Agreement. Consultant shall submit invoices at the end of project based on the cost for services performed on a time and expenses bases. . 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 sha.l1 not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement City shall m.ake no payment for any extra, further or acktitional 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. . Tbe services to be provided under this Agreement may be terminated without cause at any point in rime in the sole and exclusive discretion of 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, all finished and unfinished documents and other materials shall, - at the option of the City, become City's sole and exclusive ~operty. Consultant hereby expressly ., waives any and all claims for damages or compensation ansing under this Agreement. Consultant shall maintain adequate logs and rimesheets in order to verify costs incurred to date. The Consultant is not authorized to perform any services or incur an~,,~~sts whatsoever under the terms of this Agreement until receipt of Ii fully executed Pure Order from the Finance Department of the City of Dublin. e Exhibit B Page 1 of 1 05/06/96 · · · .~ ~. '36 Zíb 2.1 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 fumishing said physical facijities sha1l be in the sole discretion of City. In no event sha11 City be obligated to furnish any facility which may involve incurring any direct expense, includin¡;¡, but not limiting the generality of this exclusion, long-distance telephone or other COtnmUIUcation charges, vehicles, and reproduction facilities. . Exhjbit C Page I of 1 05/06/96 2. 4. ,--- 2 IPrtt/l't EXInBIT D GRNRRAL 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 right 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 all 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. rIME. Consultant shall devote such time to the perfolmance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Consultant's obligations pursU!Ul't to this Agreement. TNSURANCB REOUIREMENTS. 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 Scone ofJnsurance. Coverage shal1 be at least as broad as: Insurance Services Office form number GL 0002 (Ed. In3) covering 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). Insurance Services Office form number CA 0001 (Ed. InS) 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 OfInSUT8nCe. Consultant shallma.1ntain limits no less than: 1. 3. (1) (2) (3) (1) (2) Exhibit D Page I of4 05/06196 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 projectllocation or the general aggregate limit shall be twice the required occurrence limit. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. . ~ -. :rl'ot "2." Workers Compensation and Employers Liability: Workers Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of$l,OOO,OOO per accident. C. Deductihles and Self-Insured Retentions. A:sJ.y 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, officiaJs and employees; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. · (3) D. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: (I) . General Liability and Automobile Liability Coverages. (a) (b) · (c) (d) The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities perforroed 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. A:sJ.y failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. The Consultant's insurance shall apply separately to each insured a~ainst 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 perforroed 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 o(performance of the services specified in this Agreement. (4) All Coverages. · Exhibit D Pagelof4 05/06/96 . ". .--- Zß~ ."21' .. Each insurance policy required by this clause shall be endorst:d 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. E. Acceptability ofInsurers. Insurance is to be placed with insurers with a BestS' rating of no less than A:VIll. F: Verification ofCovera~e. Consultant shall funrish 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 signt:d by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be receivt:d and approved by' the City before work commences. The City reserves the right to require complete, certifit:d copies ofal! required insurance policies, at any time. R 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. 5. CONSt IT ,T ANT NO AGENT. EKcept 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. 6. ASSJONMRNT PROHIBITIm. No party to this Agreement may assign any right or obligation pursuant to this Agreement. t.:tr attempted or purported assignment of any right or obligation pursuant to this Agreement s be void and of no effect. . 7. 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 :&om City of such desire of City, cause the removal of such person or persons. 8. STANDARD OF PERFORMANCE. Consultant shall perform al! 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 Agreemcnt shall be prepared in a substantial, first class and worlamm1ike manner and conform to the standards of q1.J!ÙÎty nonna!ly observed by a person practicing in Consultant's profession. 9. HOLD HA RMl .RSS A NT) RRSPONSffilLTTY OF CONSt)L T ANTS. Consultant shall take all responsibility for the work, shall bear a1llosses 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 perfonnance or character of the work, unforeseen difficulties, accidents, occurrences or other causes predicated on active or passive negligence of the ConsuItiuJt or of his subconsultant. Consultant shall indemnify, defend and hold harmless the City, its officers, officials, directors, employees and agents fi:om 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 indirect1y arising from the negligent performance of the work. This paragraph snail not be construed to exempt the City, its employees and officers from its own fi:aud, willful injUIy 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 ., Exhibit D Page 3 of4 05/06/96 .' - .- - . · · · -. ,--.. ~ 2t1 it/) 2ft 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 ftom liability under this paragraph. 10. GOVERNMENT AI, REm IT ,A TIONS. To the extent that this Agreement may be ftmded by fiscal assistance from another govenunental entity, Consultant shall comply with all applicable rules and regulations to which City is bound by the termS of such fiscal assistance program. 11. . 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 be performedi1ereunder or upon termination of the Agreement. No such materials or properties 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 patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. Exhibit D Page 4 of 4 05/06/96