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HomeMy WebLinkAboutReso 195-06 Relocation Assistance Program RESOLUTION NO. 195 - 06 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * APPROVING AN AGREEMENT WITH ASSOCIATED RIGHT OF WAY SERVICES, INC FOR DEVELOPMENT OF A RELOCATION ASSISTANCE PROGRAM WHEREAS, the 2006-2011 Capital Improvement Program includes the Dublin Historic Park Acquisition project; and WHEREAS, in order to proceed with the project, it is necessary to acquire the Dublin Square Shopping Center (APN 941-1560-007-01); and WHEREAS, consultant services are needed to develop a Relocation Assistance Program for the tenants of the Dublin Square Shopping Center; and WHEREAS, the City received a proposal from Associated Right of Way Services, Inc.; and WHEREAS, Associated Right of Way Services, Inc. has demonstrated adequate ability to perform said services; and WHEREAS, consultant is available to perform work as specified. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does approve the agreement with Associated Right of Way Services, Inc., attached hereto and authorize the Mayor to execute the Agreement. PASSED, APPROVED AND ADOPTED this 17th day of October 2006, by the following vote: AYES: Councilmembers Hildenbrand, McCormick, Oravetz and Zika, and Mayor Lockhart NOES: None ABSENT: None ABSTAIN: None 11~ I j ~. /' {I / i. .1- . ';I&/LJii _ <</U-;( I f Mayor f , V A TTEST:.{ /i \ , \ \ F -~'D ~ .----4(U ^ "'fv..-~....J City Clerk Reso No. 195-06, Adopted 10/17/06, Item 4.2 Page 1 of 1 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND ASSOCIATED RIGHT OF WAY SERVICES, INC. THIS AGREEMENT for consulting services is made by anq between the City of Dublin ("City") and Associated Right of Way Services, Inc. ("Consultant") as of fJ:--\lJ LJe( i 7, 200b 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 conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall end when the Consultant completes the work described in Exhibit A, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. Notwithstanding this Section 1.1, the Consultant's obligation to provide Court Services, as described in Section D of Exhibit A, shall survive the expiration or termination of this Agreement. 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 AssiQnment of Personnel. In the event that City, in its sole discretion, at any time during the term of this Agreement, does not desire to work with any personnel of Consultant, City shall provide written notice to Consultant of such desires and the reason behind such request. Consultant then, in its sole discretion, shall reassign such personnel. 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. Section 2. COMPENSATION. City hereby agrees to pay Consultant at the hourly rates set forth in Exhibit B, for_a sum not to exceed ONE HUNDRED THIRTY FIVE THOUSAND DOLLARS AND NO CENTS ($135,000.00), for the services described in the Scope of Work attached as Exhibit A.. City shall pay Consultant for such services and reimburse Consultant for costs associated with such services pursuant to the Fee Schedule attached as Exhibit B. Notwithstanding this Section 2, City hereby agrees to pay Consultant for the Court Services described in Section D of Exhibit A at the hourly rate set forth in Exhibit B, even if such payment is in excess of the not to exceed amount set forth herein. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5,2006 Page 1 of 13 In the event of a conflict between this Agreement and Consultant's proposal regarding the total amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information: · Serial identifications of progress bills; Le., Progress Bill No.1 for the first invoice, etc.; · The beginning and ending dates of the billing period; · A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; · At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; · The total number of hours of work performed under 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 hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A; · The Consultant's signature. 2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5,2006 Page 2 of 13 2.4 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the Fee Schedule, attached as Exhibit B. 2.5 Reimbursable Expenses. Reimbursable expenses are included in the total amount of compensation provided in Section 2 that shall not be exceeded. 2.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.7 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.8 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. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, 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 all respects to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5, 2006 Page 3 of 13 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 directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. 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, employees, and volunteers for loss arising from work performed under this Agreement. 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 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.2 Commercial General and Automobile Liabilitv Insurance. 4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, 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 coveraQe. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001, Code 1 (any auto), or Code 8 (hired) and Code 9 (non-owned) if the Consultant has no autos. No endorsement shall be attached limiting the coverage. 4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5, 2006 Page 4 of 13 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 loss 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 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.3 Professional Liabilitv 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 endorsement 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 written notice by certified mail, return receipt requested, has been given to the City. 4.3.3 The policy must contain a cross liability or severability of interest clause. 4.3.4 The following provisions shall apply if the professional liability coverages are written on a claims-made form: Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5,2006 Page 5 of 13 a. The retroactive date of the policy 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 reasonable 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, Consultant 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 expense, any extended 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 under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptabilitv of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of coveraQe. Prior to beginning any work under this Agreement, Consultant shall furnish City with certificates of insurance and with original endorsements effecting coverage required herein. 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 City reserves the right to require complete, certified copies of all required insurance policies, 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 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. 4.4.5 Deductibles 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. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5, 2006 Page 6 of 13 During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Consultant may increase such deductibJes 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 Coverage. 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 fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: · Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; · Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or · Terminate this Agreement. Section 5. INDEMNIFICATION 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 any and 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. The foregoing obligation of Consultant shall not apply when the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers. 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 California 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 Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5, 2006 Page 7 of 13 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. Notwithstanding the foregoing, to the extent that this Agreement is a "construction contract" as defined in California Civil Code section 2783, as amended from time to time, such duty to indemnify shall not apply when to do so would be prohibited by California Code section 2782. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant No AQent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 GoverninQ Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Re~ulations. To the extent that this Agreement may be funded by fiscal assistance from another govemmental entity, Consultant and any subcontractors Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5,2006 Page 8 of 13 shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shaH, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and EQual Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shaH 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. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 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, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5,2006 Page 9 of 13 8.3 AssiQnment and SubcontractinQ. 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. City and 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. 8.4 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. 8.5 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: 8.5.1 Immediately terminate the Agreement; 8.5.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.5.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.5.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5, 2006 Page 10 of 13 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. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement dQes not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and AssiQns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. . Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5,2006 Page 11 of 13 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 manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code ~1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code ~ 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the City Manager ("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: Associated Right of Way Services, Inc. Attn: Karen Eddleman 2300 Contra Costa Blvd., Suite 525 Pleasant Hill, CA 94523 Any written notice to City shall be sent to: City of Dublin Attn: Diane Lowart, Director of Parks and Community Services 100 Civic Plaza Dublin, CA 94568 10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5,2006 Page 12 of 13 "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Seal and Signature of Registered Professional with report/design responsibility. 10.12 InteQration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A and the fee schedule attached hereto and 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 ASSOCIAT D-RtGHfOFWAY SERVICES, INC. Attest: ~~I~ Fawn Holman, City Clerk Approved as to Form: ~r~tL 7~ f-,L-- Elizabeth H. Silver, City Attorney 861 026-4 Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. October 5, 2006 Page 13 of 13 EXHIBIT A SCOPE OF WORK Consultant will develop a Relocation Assistance Program for the City and will implement that Program in accordance with California Relocation Assistance Law (Government Code S7260 et seq.) and implementing guidelines (California Code of Regulations, Title 25, Chapter 6). Consultant's Relocation Project Manager will work closely with City staff to coordinate relocation efforts and to keep staff informed. A. Project Management - Planning - Coordination - General Consultation 1. The Project Manager will establish a work process with the City and will manage and coordinate relocation services in accordance with California Relocation Assistance Law and the California Code of Regulations. 2. The Project Manager will work with City Staff to develop a Relocation Assistance Brochure and Appeal and Grievance Process. 3. The Project Manager and all Relocation Staff will act as a liaison between the City and the affected project occupants. 4. The Project Manager will meet with the City staff on a regular basis to report on project activities and to coordinate relocation efforts. 5. The City will receive regular, detailed status reports to track project efforts and budget. 6. The Project Manager and Relocation Staff will coordinate efforts with other City consultants, legal counsel, and others as appropriate. 7. The Project Manager will be available to work through project occupant issues and to recommend solutions. 8. The Project Manager will be available to attend public meetings, Council meetings and appeal proceedings as needed. 9. The Project Manager will work with City staff to monitor the Relocation budget and to provide regular budget reports. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. - Exhibit A October 5, 2006 Page 1 of 6 B. Relocation Planning Consultant will prepare a Relocation Impact Study ("Study") and Cost Estimate for the project in accordance with State Law and Regulations. The Study will be prepared as a planning tool for the City and as an informative document for the community and project occupants. The Draft Study will be circulated for a 30-Day Review and Comment Period as required by Law. Comments to the Draft Study will be incorporated into the Final version of the Study that will be submitted to City Council for approval prior to the initiation of Relocation activities. Consultant staff will attempt to meet with each affected project occupant in order to determine occupant characteristics and replacement site needs. Research on available replacement sites in the area will provide the necessary information to determine the availability of replacement sites in the area. The Plan will be developed to include the following information: 1. General Project Information 2. Project Occupant Characteristics 3. Replacement Site Resources 4. A Detailed Description of the City's Relocation Assistance Program 5. A budget estimate of relocation costs C. Relocation Assistance Services Consultant will provide the City with a Project Manager and supporting staff that will implement the City's Relocation Program in a timely, professional manner. Relocation Advisors will act as a liaison between the City and the affected occupants. This relationship provides that Relocation Advisors will work closely with City staff to implement a fair and equitable Relocation Program and, simultaneously provide affected occupants with continuing information as to their rights as displaced persons and assistance to replacement sites. Site Searching Services are essential for the successful relocation of businesses. Consultant staff researches business replacement sites through area brokers, classified ads, driving surveys, commercial property databases and relationships with property management companies. Consultant's goal is to provide continuing site availability information to each affected occupant. Business Relocation Assistance Services will be available to each affected business occupant. Those services include: Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. - Exhibit A October 5,2006 Page 2 of 6 1. A Relocation Advisor will be assigned to each affected business owner. The Advisor will meet with each business owner to determine the business structure, market area, personal property, and replacement site needs. 2. The Relocation Advisor will be responsible to provide each business with the following documentation when appropriate: a. General Information Notice b. Letter of Eligibility c. Referrals to Replacement Sites d. 90-Day Notice to Vacate (to be signed by the City) 3. The Relocation Advisor will coordinate with specialty appraisers as necessary for Fixtures and Equipment and Goodwill estimates. 4. The Relocation Advisor will work with area brokers, the City and other resources to identify available replacement sites that might accommodate each affected business. 5. The Relocation Advisor will work closely with each business in order to secure estimated relocation costs. 6. The Relocation Advisor will prepare claims for payment and will present them to the business owners for signature. The Advisor will submit all signed claims and necessary documentation to the City for review and processing. 7. The Relocation Advisor will establish and maintain a detailed Relocation File for each business in order to document specific Relocation efforts. Each file will include a relocation diary to track all contact with occupants. 8. The Relocation Advisor will provide continuing information to City staff to keep staff apprised of relocation efforts and vacate status. 9. The Relocation Advisor will assist in preparing a Relocation Appeal Package for a claimant in the event of appeal. (Optional Service) D. Court Services Consultant will provide court-related services, including, but not limited to: depositions, court appearances, arbitrations / mediations, hearings, testimony, and preparation for the foregoing activities, which arise in connection with the services provided by the Consultant to the City pursuant to this Agreement ("Court Services"), including, but not limited to, any claim for loss of business goodwill, except that Court Services shall not include disputes between Consultant and City with respect to this Agreement. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. - Exhibit A October 5,2006 Page 3 of 6 E. City's Obligations: Relocation The City is responsible to provide assistance to each affected project occupant in a timely manner In accordance with State Relocation Law and Regulations. 1. Consultant will submit documents and claims to the City for review and approval. It is important that documents and claims be approved and processed in a timely manner in order to avoid a hardship for the affected occupants. "Rush" payments will be limited, but may be required at times during the project. 2. The City will notify Consultant in writing if there are any changes in project scope or project schedule. 3. The City will forward real estate and Furniture, Fixtures and Equipment appraisals to Consultant as needed. (Optional Service) 4. The City has funds available to proceed with this project and to provide Relocation Assistance to affected occupants on a timely basis. F. Administrative Support 1. Consultant will provide a fully staffed in-house clerical team to provide word processing, reports, project tracking and budget control for all Consultant services. G. Budget Estimate September 28, 2006 i Confidential for CLIENT Use ! Only Estimate Valid for 30 Days After Submission Client: Project: Assignment Summary: City of Dublin Berkeley Land Company Acquisition Project Relocation Project Planning and Business Relocation Assistance Services Categories: Scope of Services: Estimated Bud2et for 12 month project $15,000 Project Management (Time Charged) Project Management as needed to establish Relocation Assistance Program policies and procedures, to attend public meetings as needed, and to coordinate relocation efforts. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. - Exhibit A October 5, 2006 Page 4 of 6 Relocation Planning Preparation of Relocation Impact Study. $12,500 (Time Charged) Business Relocation Services Relocation Assistance Services for up to nine (9) businesses. $89,500 (Time Charged) Business Site Searching Site Searching Services for replacement sites. $13 ,500 (Time Charged) Administrative Services Administrative Services as needed. $4,500 (Time Charged) Estimated Budget Total: $135,000 Start Requirements: Agreement for Professional Services (signed contract) ~- Notice to Proceed. Ending: Close of relocation file through submission of claims or substitute agreement with displace. NOTES: 1. Figures are based on information provided to AR/WS as of the date of this estimate. 2. Assumes CEQA, and if necessary, NEP A compliance has been met. 3. Subject to AR/WS Assumptions and Limitations, contained herein. 4. The Budget has been prepared based upon a 12 month project schedule. An extended or reduced project schedule will increase the estimated budget. 5. Budget Estimate does not include negotiations with property owners and business owners for fixtures and equipment. 6. A 20% contingency is recommended but is not included in the above figures. H. General Assumptions and Limitations 1. City to provide prompt approval of all acquisition and relocation documents. Significant transmittals to be approved by City prior to use. Administrative settlements and/or contract addenda to be pre-approved by City. Consultant estimated budget assumes timely assignment of appraisals, acquisition parcels and relocation cases. Deferring or "piece meal" assignments may add to level of effort and costs. Budget estimates for multi-task assignments assume all tasks assigned to Consultant; not "ala-carte". 2. As applicable, City to provide written appraisal approval. City to sign Offers of Just Compensation as reflected in the Appraisal Summary Statement(s). City letterhead to be used for offers and significant correspondence, including Notices of Decision to Appraise and acquisition and relocation notices. Initiation of acquisition work assumes that City has secured any required environmental certification as well as any Federal or State approvals to begin right of way services. 3. All services to be provided pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act and applicable State and Federal laws, related guidelines and regulations. 4. City to provide adequate appraisal maps, right of way plats, construction plans, preliminary title reports, deed legal descriptions and deed face sheets (for easements) suitable for recording. City to provide environmental impact report or statement with mitigation measures outlined as these may effect the Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. - Exhibit A October 5,2006 Page 5 of 6 appraisal and/or acquisition process. Consultant will reasonably rely upon the accuracy, timeliness and completeness of the information provided by City. City to provide cost to cure and replacement-in-kind estimates and/or policy as necessary. 5. As applicable, pre-acquisition activities for soliciting Permits to Enter for soils/testing/contract work, Rights of Entry, Agreements for Possession and Use not included (unless noted otherwise) but can be provided. 6. Except for appraisals, which are lump sum, this is a "time charged" contract in accordance with the Consultant Fee Schedule. The not to exceed total compensation amount agreed to between Consultant and City, described in Section 2 of the Consulting Services Agreement between City and Consultant, is contingent on the performance of only items explicitly described in the Scope of Work and without the occurrence of any material change which would alter such Scope of Work. Consultant is not responsible for any material change to the Scope of Work due to reasons not expected at the time of the execution of this Agreement which include, but are not limited to, addition of new projects within the Scope of Work by City, schedule changes, new or revised legislation regulations statutes or ordinances by any governmental entity, extended negotiations, leases, multiple vestings, title complications, pre-acquisition efforts, relocation complications, unrecorded claims, extended site searches, eminent domain actions, right of way and/or design changes, revised or updated appraisals, replacement housing valuations or relocation plans. This Agreement is not a guarantee of property rights requested for a fixed budgeted amount. 7. Budget to be reviewed periodically. Consultant may reapportion budget allocations among categories. 8. Escrow costs, if any, shall be paid by City. Escrow instructions to be prepared by Title Company with Consultant coordination. City to determine acceptable condition of title and what, if any, title exceptions to take "subject to". Consultant to assist and consult as requested. 9. Consultant will, upon written or verbal notice from City, suspend, delay, or interrupt all or a part of the scope of service. In such event, Consultant will resume the scope of services upon written or verbal notice from City and an appropriate extension of time and costs will be mutually agreed upon within a reasonable time following re-initiation of all or any part of the Scope of Services. 10. City will give prompt notice to Consultant whenever City observes or becomes aware of any development that affects the scope or timing of Consultant's Scope of Work, or any defect in the work of Consultant. 11. Unless otherwise noted, preparation of Caltrans Right of Way Certification documents are not included in the Scope of Services, but can be provided. 12. Team composition may be adjusted by Consultant. 13. Consultant understands that construction and right of way plans are subject to some change. Consultant will accommodate any changes in the right of way, including number or parcels, acquisitions and relocations. Changes in proposed acquisitions after appraisals have begun or negotiationslrelocations have commenced will add time and expense to assignments. The parties acknowledge that such revisions may add to costs. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. - Exhibit A October 5,2006 Page 6 of 6 EXHIBIT B FEE SCHEDULE Service Hourlv Rate Principal Consultant Managing Consultant Consultant I Consultant II Consultant III Right of Way Technician Administrative Support Appraisal Reports Appraisal Services (Hourly) Relocation Plans/Reports Subcontractors Depositions, Court Appearances, Arbitrations / Mediations, Hearings, and Testimony (including preparation) $165.00 $120.00 - $140.00 $110.00 $100.00 $90.00 $75.00 $55.00 Lump Sum $175.00 Lump Sum* Cost + 10% $225.00 Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. - Exhibit B October 5,2006 Page 1 of 1