Loading...
HomeMy WebLinkAboutItem 4.07 NoiseMitigationFee . . CITY CLERK File # D[b][l2]~-~~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: January 9,1996 SUBJECT: Award of Contract for the Noise Mitigation Fee 1J=.- Report Prepared by: Dennis H. Carrington, Senior Planner EXHIBITS ATTACHED: 1. 2. Resolution Awarding the Consulting Contract Contract for Consultant Services RECOMMENDATION: J:f 1;1:(- Adopt Resolution approving the contract between the City of Dublin and Charles M. Salter Associates, Inc. 2. Authorize the City Manager to Execute the Contract. . . FINANCIAL STATEMENT: The cost of the proposed Contract will not exceed $14,500.00. The 1995-96 City Budget includes funding for this contract aswell as other Eastern Dublin consultant studies. The City is in the process of establishing a method for recovering the costs associated with implementing the Eastern Dublin Specific Plan. These Contract costs will be recovered through the processing of future development projects within the Eastern Dublin Specific Plan area. DESCRIPTION: The Environmental Impact Report (EIR) for the Eastern Dublin General Plan and Specific Plan assessed the project's potential Noise impacts. The project would contribute to cumulative traffic-related noise impacts in the region. Impact 3.1 OIB, Exposure of Existing Residences to Future Roadway Noise, addressed the cumulative traffic-related noise impacts on existing residences along Fallon Road and Tassajara Road. It determined the noise impact of the Project to be a significant cumulative impact. Mitigation Measure 3.1017.0 would, if properly implemented, reduce cumulative noise impacts to a potentially significant level. The City Council adopted Ordinance 1-95 which establishes a Noise ------------------------------------------------------------------- COPIES TO: Planning Director Dennis Carrington, Senior Planner Noise Mitigation Fee File General File Planning Secretary /1 ""?' ITEMNO.~ .. g:/llgendlls/I-9noise Mitigation Fee. The Ordinance states that the City Council shall set forth the amount of the Fee, doscribe . the benefit and impact area on which the Fee is imposed, list the noise mitigation measures to be financed, describe the estimated cost of these measures, and describe the reasonable relationship between the Fee and the various types of future developments and set forth time for payment. The work performed by C:'lfles M. Salter Associates, Inc., will provide the necessary information to accomplish this. The City .",' intends that the Noise Mitigation Fee be used to mitigate the cumulative impacts of exposure of existing residences to future roadway noise. tasks: For the Noise Mitigation Fee, the Scope of Work requires that the consultant perform several 1. Conducting a survey of existing residential structures within the Eastern Dublin General Plan Amendment and Specific Plan along Fallon Road and Tassajara Road. 2. Determining whether or not the above-mentioned existing residential structures will be subjected to future external noise levels of 60 dB or greater or internal noise levels of 45 dB or greater as field tested. 3. Contacting residents and performing such field testing as may be necessary. 4. Determining mitigation measures to be applied to reduce exposure of those existing residences found to be exposed to levels of 60 dB or greater externally or 45 dB internally, to 60 dB or less externally and 45 dB or less internally. 5. Determining the total cost of the mitigation of the noise impacts of Impact 3.10 B. Establishing Noise Mitigation Fee, and the methodology for determining how the total cost.,':,:,' should be allocated to development. The methodology should document that there is a "rough proportionality" between the amount of the fee and the type of development causing the noise impact. 6. 7. Assisting Staff in presentation of Noise Mitigation Fee at City Council hearing(s). Planning Staff sent a Request for Proposal to four qualified firms. The City received two proposals, one from Charles M. Salter Associates, Inc., and one from another qualified firm. Staff recommends entering into a contract with Charles M. Salter Associates, Inc. for completing the Eastern Dublin Noise Mitigation Fee. Charles M. Salter Associates, Inc. is highly experienced in preparing similar noise studies. As a result of this extensive experience, their proposal indicates that they are able to complete the project within a timely and cost effective manner. Charles M. Salter Associates, Inc. has organized a well- balanced working team with noise study, cost estimating, and fee allocation methodology expertise. Their proposal demonstrates a very good understanding of the Eastern Dublin Noise Mitigation Fee and the Mitigation Measure of the EIR requiring it. Staff recommends that the City Council: 1) award the contract for consultant services to Charles M. Salter Associates, Inc., and 2) authorize the City Manager to execute the contract. . :',' . . .'. .":' .'..- RESOLUTION A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN A WARDING A CONSULTING CONTRACT TO CHARLES M. SALTER ASSOCIATES INC. WHEREAS, the Environmental Impact Report (ElR) for the Eastern Dublin General Plan and Specific plan assessed the project's potential noise impacts; and WHEREAS, Impact 3.1 O/B of the EIR, Exposure of Existing Residences to Future Roadway Noise, addressed the cumulative traffic-related noise impacts on existing residences along Fallon Road and Tassajara Road; and WHEREAS, Impact 3.1 O/B of the EIR determined the noise impact of the Project to be a significant cumulative impact; and WHEREAS, Mitigation Measure 3.10/7.0 which requires a Noise Mitigation Fee would, if properly implemented, reduce cumulative noise impacts to a potentially significant level; and WHEREAS, the City intends that the Noise Mitigation Fee be used to mitigate the cumulative impacts of exposure of existing residences to future roadway noise; and WHEREAS, in compliance with the Eastern Dublin General Plan Amendment and Specific Plan ErR, the City of Dublin intends, by Resolution, to officially adopt a Noise Mitigation Fee; and WHEREAS, in order to establish a Noise Mitigation Fee, the City should obtain the assistance and counsel of an experienced consultant who specializes in the field of noise studies; and WHEREAS, the consulting firm of Charles M. Salter Associates, Inc., is able to provide the necessary consultation services in a timely and cost effective manner; and WHEREAS, the staff report was submitted recommending that the City Council award the proposed contract to the firm of Charles M. Salter Associates, Inc.; and WHEREAS, the City Council did consider said rep0l1 and recommendations. NOW, THEREFORE BE IT RESOLVED that the City Council does hereby award the consulting contract to Charles M. Salter Associates Inc. PASSED, APPROVED AND ADOPTED this 9th day of January, 1996. AYES: NOES: Mayor ATTEST: City Clerk , g:plan/dennis/sllrcs STANDARD CONTRACTUAL SERVICES AGREEMENT THIS AGREEMENT is made at Dublin, California, as of January 9, 1996 by and between the CITY OF DUBLIN, a municipal corporation ("CITY"), and Charles .: " Salter Associates, Inc., ("CONTRACTOR"), who agree as follows: 1. SERVICES. Subj ect to the terms and conditions set forth in this Agreement, CONTRACTOR shall provide to CITY the services described in Exhibit A. CONTRACTOR shall provide said services at the time, place and in the manner specified in Exhibit A. 2. PAYMENT. CITY shall pay CONTRACTOR 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 CONTRACTOR for services rendered pursuant to this Agreement. CONTRACTOR shall submit all billings for said services to CITY in the manner specified in Exhibit..-, Bj or, if no manner be specified in Exhibit B, then according to the usual a~~ customary procedures and practices which CONTRACTOR uses for billing clients similar to CITY. 3. FACILITIES AND EOUIPMENT. Except as set forth in Exhibit C, CONTRACTOR shall, at its sole cost and expense, furnish all facilities and equipment which may be required for furnishing services pursuant to this Agreement. CITY shall furnish to CONTRACTOR 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 Dare part of this Ag~eement. In the event of any inconsistency between said general provisions and any other terms or conditions of this Agreement, the other term or " genera~':-- condition shall control insofar as it is inconsistent with the provisions. 5. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated herein. .' 6. CONTRACT ADMINISTRATION. This Agreement shall be administered by Richard C. Ambrose ("ADMINISTRATOR"). All correspondence shall be directed to or through the ADMINISTRATOR or his or her designee. 7. NOTICES. Any written notice to CONTRACTOR shall be sent to: Charles M. Salter Associates, Inc. Attn: Eric Broadhurst 130 Sutter Street, Suite 500 San Francisco, CA 94104 Any written notice to CITY shall be sent to: .'- City of Dublin Attn: Richard Ambrose P. O. Box 2340 Dublin. CA 94568 Executed as of the day first above stated: CITY OF DUBLIN a municipal corporation By "CITY" Attest: City Clerk By "CONTRACTOR" Approved as to form: City Attorney . As specified in Associates[ Inc.[ Exhibit A Page 1 of 1 4/1/90 EXHIBIT A SCOPE OF SERVICES the January as attached. 4[ 1996[ letter from Charles . M. Salter .. ." . . .;. ~:':',... "T JAN. 4. 1996 11 : 25AM i~r'~~~;~:;~l,~:\~'", ~';:~~Ii~;ii;;,e · . -..' .",' ..\..,:. " " 'Il, I, I .~- .:'.:~'i~~~. . :\ .-:(1;, 'J', , '.::~~ :,.'!',~~~ ',,,!Iii~~' Consultants In ACOU6tica & AUdIONIsl.lal System Design 1:iO Sutter SLreet San FfMCisco Call1oml.. 64104 Till: 415 397 0442 Fax: .:15 3S7 0454 Chan"" M Sailor, FE .' , " 'Naah, FE C Fi 9Qhwtnd :VB CUB9ler John C =,.,ytllg, IOS "'an T A~"cn Thome! A Sctlln:ll&r HlI10ld S GQICbcrg, PE Rachel V Murray, FE CM"fOphar J Blruc:k Tlmolhy M Oer ThOlTlll~ J Co:ben ' KeI'i1\<lIl: W Gra....n Glauoll" KfBBI'B enc L BraBdhu"'~ F'E Mlchae: 0 Tay, PE Kalherlno M L&lIVY Koron E Docker, PE ,"hllp N Sanden; MBrlon ('j Mlle. Cynthia J !"lawoRlnll James Schoafor Su7-' " Cl1Wdon .',~oc Alleen M 0& Jung CHARLES M SALTER ASSOC INC 'liO. 131: ,:',;,i:', 'P. 2/5' . ;ri~'l'. .h\'~":"\.. .' I' .... L'~ . '" ".... ~ ;" " ,J:;~~j>.J?,C'" .' . ~I' ~ I,..t ......./1 ,,,-' .,...... . I '., ;" ~,l:;::,,>':,'::',;: ~-:': ~ " " a"i;.~,:".:. .J ,11, C .~;\.:.~: t'~" ~~ ,', ." ' . ":.' . . . ".' ,. . M Salter Associ 4 January 1996 Dennis Carrington Senior Planner City of Dublin P.O. Box 2340 Dublin, CA 94568 via fax (510) 833-6628 Subject: Eastern Dublin Noise Mitigation Fee Proposal for Acoustical Consulting Services Dear Dennis: Thank you for the invitation to prepare this proposal for the noise mitigation fee project. We understand that the purpose of the project is to determine how to distribute the costs of providing noise mitigation for existing residences in the study area among the developers of future projects in the area. Based on measurements that Our office has made in the study area, it Is likely that the existing homes have exterior noise levels greater than CNEL160 dB. Therefore, we are proposing that the mitigation used in the study area be designed to reduce potential build-out noise levels to the existing noise level in the area rather than to outdoor and indoor levels of CNEL 60 dB and 45 dB, respectively. You bave stated that the City's criteria for selecting which existing homes are to be in the study is exposure to a future CNEL greater than 60 dB. You indicated that this corresponds to five to seven residences. This proposal outlines our scope of work and the requisite fees. 1 Community Noi,c;c: EQuivalent Level (CN'EL) -- A descriptor for the 24-hour A-weighted average noise level. The CNEL concept accounts for the increased acoustical sensitivity of people to noise during the evening and nighttime hours. Sound levels during the hours from 7:00 pm to 10:00 pm are penalized 5 dB; sound levels during the hoUts from 10:00 pm to 7:00 am are penalized 10 dB. A 10 dB increase in sound level is perceived by people to be twice as loud. JAN. 4.1996 11:25AM CHARLES M SALTER ASSOC INC NO.131 P.3/5 Dennis Carrington 4 January 1996 Page 2 .~,\ SCOPE OF WORK We propose the following scope of work for this project: 1. Conduct a survey of the e~..isting homes within the study area along Fallon Road and Tassajara Roa.d. This survey would consist of identifying potentially impacted homes and estimating what the exterior facade wall and window constructions are. 2. Conduct acoustical measurements in the outdoor use space and near the facade of representative homes. 3. Based on existing and build-out traffic volumes provided by the City, perform a computer analysis of the existing and build-out noise levels to determine the appropriate amount of noise reduction. 4. Determine the requisite barrier heights necessary to reduce the build-out noise level to the existing level. S. Where the construction of a noise barrier would not be sufficient to maintain .' the existing noise level inside the homes, recommend methods of improving the noise reducti.on provIded by the exterior facade of the homes. 6. Working in conjunction with Saarman Construction to determine the total cost of the proposed mitigation. 7. Propose a methodology for assigning mitigation costs to these various proposed projects in the area. 8. Assist staff at City Council hearings. FEE ESTIMATE Based on our experience with other projects of this type, and the attached "Terms and Conditions" sheet, we estimate that the following fee would be necessary to complete the above Ecope of work: 1. Survey of existing homes .................................................................... $900 2. Measurement of existing noise levels ..... ....................................... $1,400 3. Computer modeling of existing and future noise levels ............. $2,600 4, 5. Determination of necessary mitigation ......................................... $2,100 6, 7. Determination of cost of mitigation .............................................. $3,000 . . . . JAN. 4.1996 11:26AM CHARLES M SALTER ASSOC INC t~O. 131 P.4/5 Dennis Carrington 4 January 1996 Page 3 8. Preparation of summary report ...................................................... $3,000 9. Attendance at two City Council hearings ..................................... $1,500 Total: $14,500 Since we cannot determine how long the City Council meetings would last or how many would be necessary, our work in this area would be hourly. The above fee is an estimate for two meetings. QUALIFICATIONS Attached please find a firm profilel a related project list, and resumes for Eric L. Broadhurst, PE; Charles M. Salter, PE; and Harold S. Goldberg, PE. Our office introduced the use of the "dollars for decibels" concept into the General Plan Amendment and Specific Plan EIR, and has recommended its implementation for a project in San Ramon. The cost estimation work would be provided by Saarman Construction in conjunction with the work of Mr. Salter. _~ide from his education in engineering and architecture, he has a background in both economics and finance. OTHER ISSUES In the interest of maintaining our objectivity, we would like to disclose that we are . currently worldng on Phase I of the Dublin Ranch project. Our time frame for completing the scope of work would parallel the schedule shown in the "Timing" paragraph of the RFP. We look forward to working with you on this project. Should you have any questions, please give US a call. Sincerely, CHARLES 1\1. SALTER ASSOCIATES, INC. Eric L. Broadhurst, PE , Senior Consultant encl. - as noted EL13/esd JA04ELB JAN. 4. 1996 11 : 27Ar1 CHARLES M SALTER ASSOC INC NO. 131 P.5/5 Charle$ M Salter Associates Inc - . TERMS AND CONDITIONS Insurance: General Liability $2,000,000 $1,000,000 $2,000,000 Workers Conlpensation AutomOQile Liability Professional Liability (':Errors and Omissions" ): Professional liability of Charles M. Salter Associates, Inc., its officers, employees and subconsultants is limited to $50,000, or our total fee, whichever is less. The above limitation of professional liability can be changed to the limit of our ~surance policies by increasing our total fee by 10% prior to start of our services. Schedule of Hourly Rates President $150.00 Vice~Presidel1t) Director $140.00 .:. Principal Consultant $115.00 Senior Consultant $100.00 Consultant $90.00 Technical Assistant $60.00 Reimbtu'sable expenses such as travel, subsistence, meals, lodging and project related materials are billed in addition at cost. Measurement instrumentation and engineering computer usage are charged at our standard rates. Invoices for technical labor, reimbursable expenses, and instrumentation use are rendered monthly for work performed during the previous month. Payment for each invoice is due within 30 days. Fee proposals are valid for 60 days. The total fee will be applied as we deell1 appropriate among the individual tasks. All fees assume the work will proceed without delays, redesign or scope changes. Such occurrences may warrant a renegotiation of fees. The schedule of hourly ;rates is valid for one year from the proposal date. A renegotiation of our hourly rates may be required after this period. Acoustical specifications input and details have all rights reserved by Charles M. Salter Associates, Inc. These documents are for use only on the project for which Charles M. Salter Associates, Inc. is retained. .': EXHIBIT B PAYMENT SCHEDULE .' CITY shall pay CONTRACTOR an amount not to exceed the total sum of Fourteen Thousand Five Hundred Dollars ($14,500) for services to be performed pursuant to this Agreement. CONTRACTOR shall submit invoices during the term of this Agreement based on the cost for services performed in accordance with the following schedule: Monthly but not more often than once a month; and provided further, in no event ,'~hall CITY pay CONTRACTOR a sum exceeding 20% of the total sum due for 4It~rvices pursuant to this Agreement in anyone month; and provided further, CITY shall pay the last 20% of the total sum due pursuant to this Agreement within forty-five (45) days after completion of the services and submittal to CITY, if all services due pursuant to this Agreement have been satisfactorily performed. The total sum stated above shall be the total which CITY shall pay for the services to be rendered by CONTRACTOR pursuant to this Agreement. CITY shall not pay any additional sum for any exp~nse or cost whatsoever incurred by CONTRACTOR in rendering services pursuant to this Agreement. .~~~b~ t o~ 2 4/1/90 CITY shall make no payment for any extra, further or additional, service pursuant to this Agreement unless such extra service and the prie:, 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 (25%) of the initial contract price. The services to be provided under this Agreement may be terminated without cause at any point in time in the sole and exclusive discretion of CITY. In this event, CITY shall compensate the CONTRACTOR for all outstanding costs incurred as of the date of written notice thereof and shall terminate this Agreement. CONTRACTOR shall maintain adequate logs and timesheets in order to verify costs incurred to date. . The CONTRACTOR is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of a fully executed Purchase Order from the Finance Department of the City of Dublin. Exhibit B Page 2 of 2 4/1/90 .; EXHIBIT C . CITY shall furnish physical facilities such as desks! filing cabinets! and conference space! as may be reasonably necessary for CONTRACTOR'S use while consulting with CITY employees and reviewing records and the information in possession of CITY. The location! quantity! and time of furnishing said physica"l facilities shall be in the sole discretion of CITY. In no event shall CITY be obligated to furnish any facility which may involve incurring any direct expense! including! but not limiting the generality of this exclusion! long-distance telephone or other communicat,ion charges! vehicles! and reproduction facilities. ." ~Xhibit C Page 1 of 1 4/1/90 EXHIBIT D GENERAL PROVISIONS . 1. INDEPENDENT CONTRACTOR. At all times during the term of this Agreement, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR'S services rendered pursuant to this Agreement; however, CITY shall not have the right to control the means by which CONTRACTOR accomplishes services rendered pursuant to this Agreement. 2. LICENSES: PERMITS: ETC. CONTRACTOR represents and warrants to CITY that he has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for CONTRACTOR to practice his profession. CONTRACTOR represents and warrants to CITY that CONTRACTOR 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 a.,: legally required for CONTRACTOR to practice his profession. 3. T..I11E. . CONTRACTOR shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of CONTRACTOR'S obligations pursuant to this Agreement. 4. INSURANCE REOUIREMENTS. CONTRACTOR 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 CONTRACTOR, his agents, representatives, employees or subcontractors. The cost of such insurance shall be included in the CONTRACTOR'S bid. .' Exhibit D Page 10f,7 4/1/90 (a) Minimum Scope of Insurance. Coverage shall be at least as' broad . as: 1. 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; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001.) 2. Insurance Services Office form number CA 0001 (Ed. 1/78) .covering Automobile Liability, code 1 "any auto" and endorsement CA 0025. 3. Workers' Compensation Insurance as required by the Labor Code of the State of California and Employers Liability . Insurance. (b) Minimum Limits of Insurance. CONTRACTOR shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Workers' Compensation and Employers Liability: Workers' . Exhibit D Page 2 of 7 4/1/90 Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per . accident. (c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the option of the CITY, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CITY, its officers, officials and employees; or the CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. (d) Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages. a. The CITY, its officers, employees a.::, covered as insureds as respects: officials, volunteers are to be liability arising out of activities performed by or on behalf of the CONTRACTOR; products and completed operations of the CONTRACTOR, premises owned, occupied or used by the CONTRACTOR, or automobiles owned, leased, hired or borrowed by the CONTRACTOR. The coverage shall contain no special limitations on the scope of the protection afforded to the CITY, its officers, officials, employees or volunteers. b. The CONTRACTOR I S insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees and volunteers. Any insurance or Exhibit D Page 3 of 7 4/1/90 self-insurance maintained by the CITY, its officers, .'. officials, employees or volunteers shall be excess of the CONTRACTOR'S insurance and shall not contribute ..' with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY, its officers, officials, employees or volunteers. d. The CONTRACTOR'S insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the CITY, its officers, officials, employees and volunteers for losses arising from work performed by the .:' CONTRACTOR for the CITY. 3 . Professional Liability. CONTRACTOR shall carry professional liability insurance in an amount deemed by the CITY to adequately protect the CONTRACTOR against liability caused by negligent acts, errors or omissions on the part of the CONTRACTOR in the course of performance of the services specified in this Agreement. 4. All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in . Exhibit D Page 4 of,7 4/1/90 5. limits except after thirty (30) days' pr~or written notice by certified mail, return receipt requested, has been given .' to the CITY. (e) Acceptability of Insurers. Insurance is to be placed with insurers with a Bests. rating of no less than A:VII. (f) Verification of Coverage. CONTRACTOR shall furnish CITY with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be received and approved by the CITY before work commences. The CITY reserves the right to require complete, certified copies of all required insurance policies, at any time. (g) Subcontractors. CONTRACTOR shall include all subcontractors . furnish separate insureds under its policies or shall certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. (h) The Risk Manager of CITY may approve a variation in 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. CONTRACTOR NO AGENT. Except as CITY may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on . Exhibit D Page 5 of 7 4/1/90 . .'. .,:, , , behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this Agreement to bind CITY to any obligation whatsoever. 6. ASSIGNMENT PROHIBITED. No party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. 7. PERSONNEL. CONTRACTOR 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, CONTRACTOR shall, immediately upon receiving notice from CITY of such desire of CITY, cause the removal of such person or persons. 8. STANDARD OF PERFORMANCE. CONTRACTOR 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 CONTRACTOR is engaged in the geographical area in which CONTRACTOR practices his profession. All instruments of service of whatsoever nature which CONTRACTOR delivers to CITY pursuant to this Agreement shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of quality normally observed by a person practicing in CONTRACTOR's profession. 9. HOLD HARMLESS AND RESPONSIBILITY OF CONTRACTORS. CONTRACTOR shall take all responsibility for the work, shall bear all losses and damages directly or indirectly resulting to him, to any subcontractor, to the CITY, to CITY officers and employees, or to parties designated by the CITY, on account of the performance or character of the work, Exhibit D Page 6 of 7 4/1/90 , . unforeseen difficulties, accidents, occurrences or other causes predicated on active or passive negligence of the CONTRACTOR or a::il... subcontractor. CONTRACTOR shall indemnify, defend and hold harmlell', the CITY, its officers, officials, directors, employees and agents from and against any or all loss, liability, expense, claim, costs (including costs of defense), suits, and damages of every kind, nature and description directly or indirectly arising from the performance of the work. This paragraph shall not be construed to exempt the CITY, its employees and officers from its own fraud, willful injury or violation of law whether willful or negligent. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this agreement is not' a construction contract. By execution of this agreement CONTRACTOR 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 CONTRACTOR or subcontractors from liability under this paragraph. 10. GOVERNMENTAL REGULATIONS. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, CONTRACTOR 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, studies, surveys, photographs, memoranda or other written documents or materials prepared by CONTRACTOR pursuant to this Agreement shall become the property of CITY upon completion of the work to be performed hereunder or upon termination of the Agreement. Exhibit D Page 7 of 7 4/1/90 a: contract'. personnel forms ."