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HomeMy WebLinkAboutReso 204-07 St Pats Way Extension RESOLUTION NO. 204- 07 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING AGREEMENT WITH ASSOCIATED RIGHT OF WAY SERVICES, INC., FOR CONSULTING SERVICES FOR THE EXTENSION OF SAINT PATRICK WAY WHEREAS, the need for future roadway extension between Golden Gate Drive and Regional Street is identified in the City of Dublin's General Plan to accommodate development in and around downtown Dublin, especially in the vicinity of the proposed West Dublin BART Station; and WHEREAS, the connection between Golden Gate Drive and Regional Street must be improved to accommodate the proposed Windstar residential development at the BART property; and WHEREAS, Associated Right of Way Services, Inc., has completed the appraisal of this parcel of land; and . WHEREAS, the City desires to utilize the services of Associated Right of Way Services, Inc., to perform right of way negotiation and acquisition consulting work for said project; and WHEREAS, the cost of these right of way negotiation and acquisition services will be paid through Downtown Dublin Traffic Impact Fees and downtown mitigation monies; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the agreement with Associated Right of Way SerVices, Inc., for consulting services. BE IT FURTHER RESOLVED that the Mayor is authorized to execute the agreement. PASSED, APPROVED AND ADOPTED this 20th day of November, 2007, by the following vote: AYES: Councilmembers Hildenbrand, Oravetz, Sbranti and Scholz, Mayor Lockhart NOES: ABSENT: ABSTAIN: ATTEST: I ~L~c~ Intenm CIty Clerk G:\CIP\St. Patrick Way\Consultants\Reso ARWS row acquisition agmt I02007.doc CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLlNAND ASSOCIATED RIGHT OF WAY SERVICES, INC. THIS AGREEMENT for consulting services is made by and between the CITY OF DUBLIN ("City") and ASSOCIATED RIGHT OF WAY SERVICES, INC. ("Consultant") as of November 20,2007. 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 on May 1, 2008, 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 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. 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. 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 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 Six Thousand One Hundred Dollars and No Cents ($6,100;00), notwithstanding any contrary indications that may be contained in Consultant's 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 proposal, attached as Exhibit A, 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. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. November 20, 2007 Page10f13 Except as specifically authorized by City, Consultantshall not bill City for duplicate services performed by more than one person. \ . Consultant 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 salaries and benefits of employees and subcontractors of Consultant. Consequently, 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: II 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 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 purs-uant 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 entireAgreement, 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. November 20, 2007 Page 2 of 13 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. 2.5 Reimbursable Expenses. Reimbursable expenses are included in the total amount of compensation provided under this Agreement 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. November 20,2007 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 notless 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 (ed. 11/88) 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 least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9 ("any auto"). 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. November 20, 2007 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 accid~nt basis, and not on a claims-made basis. c. An endorsementmust 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 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. November 20, 2007 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 c~ompletion 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 anytime. 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. November 20, 2007 Page 6 of 13 During the period covered by this Agreement, only upon the prior express written authorization of Gontract 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 CoveraQe.ln 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, or 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 frorT} 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. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. November 20, 2007 Page 7 of13 . 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 contractpr 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 hereuoder. 7.3 Other Governmental ReQulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental 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. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. November 20, 2007 Page 8 of 13 7.4 . Licenses and Permits. Consultant represents and warrants tq City thatConsultantand its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals ofwhatsoever 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 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 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. 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 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, 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 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 Consulting Serviqes Agreement between City of Dublin and Associated Right of Way Services, Inc. November 20, 2007 Page 9 of 13 > 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 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.. 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 ter(mination of this Agreement. 8.6 Options upon Breach bv Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to, the following: 8.6.1 Immediately terminate the Agreement; 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 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 Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. November 20, 2007 Page 10 of 13 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. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attornevs' 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 of 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 anybrEiach 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. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. November 20, 2007 Page 11 of 13 1Q.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 .Useof 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 c1ients, 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 S1090 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 S 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 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: Larry Castellanos Associated Right of Way Services, Inc. 2300 Contra Costa Boulevard, Suite 525 Pleasant Hill, CA 94523 Any written notice to City shall be sent to: Melissa Morton City of Dublin Public Works 100 Civic Plaza. Dublin, CA 94568 Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. November 20, 2007 Page 12 of 13 ~ 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 "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Seal and Signature of Registered Professio,nal with report/design responsibility. 10.12 InteQration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A, 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 ASSOCIA T D RIGHT OF WAY SERVICES, INC. Janet Lockhart, Mayor Attest: City Clerk Approved as to Form: Elizabeth Silver, City Attorney G:ICONSUL T ANTSlconsulting agreement REVISED (June 2DD4).doc Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc. November 20,2007 Page130f13 EXHIBIT A SCOPE OF SERVICES To provide right of way negotiation and acquisition services, which includes services as shown on attached proposal dated October 30, 2007, subject to the attached General Assumptions and Limitations. The work shall be completed by May 1, 2008, unless extended by agreement of both parties. \ Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc.--Exhibit A November 20, 2008 Page 1 of 1 CLIENT: CITY OF DUBLIN PROJECT: ST. PATRICK WAY EXTENSION Page 1 of 5 EXHIBIT A ~~ ASSOCIATED i I RIGHT OF WAY SERVICES, INC. Scope of Work ASSOCIATED RIGHT OF WAY SERVICES, INC., ("ARIWS") will provide Negotiation/Acquisition Services for the City of Dublin ("Client"). All ARIWS services will comply with pertinent sections of the Uniform Relocation Assistance _ and Real Property Acquisition Policies Act of 1970. A. Neaotiations / Acquisitions 1. ARlWS will prepare acquisition documents. Said documents include, but are not limited to, offer letter, appraisal summary statement and summary of the basis for just compensation, summary statement pertaining to the acquisition of real property or an interest therein, purchase agreement, deed, public acquisition brochure and goodwill information sheet (if not addressed in Client brochure). 2. ARIWS will negotiate to acquire the partial acquisition interests that are identified by Client. We are assuming there will be negotiations with one (1) property owner. The clearance of any leasehold interests is not included in this Scope of Work or Budget Estimate. 3. ARIWS will prepare acquisition documents for the property proposed to be acquired. All acquisition documents to receive Client's written approval as to form prior to use in the field. If agreement with the property owner cannot be reached, ARMlS will advise Client that negotiations have reached an impasse. The Client will consider scheduling of an action in eminent domain including the required public necessity hearing. AR/WS will provide" condemnation support as needed and requested, budget allowing. AR/WS will initiate and maintain individual acquisition files. " 4. If settlement with the property owner is reached pursuant to the Client approved appraisal or Client approved administrative settlement, ARMlS will prepare a Memorandum of Settlement for transmittal to Client. If an administrative settlement a-ppears to be prudent, ARMlS will prepare a settlement discussion" memorandum reviewing the issues. This memorandum will require Client written approval before implementation of any settlement agreement. ARMlS will establish with Client a process of coordinating escrow closings and reviewing escrow instructions. Where there are escrow closings, preparation of escrow instructions will be completed by title company. Approval of conditions of title and escrow instructions, including but not limited to, "subject to" title exceptions, will be done by Client. . 5. All discussions for the acquisition of property or an interest therein will be directed to result in the payment of just compensation. 6. ARMlS will make every reasonable effort to acquire property on behalf of the Client expeditiously through agreement with its owner and to avoid litigation. This may necessitate greater levels of effort in the negotiations phase and, where appropriate, should continue after eminent domain has been initiated. Client will provide ongoing feedback to ARMlS as to authorization for settlements. CONFIDENTIALITY NOTICE: This information is intended only for the use of the recipient. Any disclosure, copying, distribution or use of any of the in ormation contained in this document is stricti rohibited. CLIENT: CITY OF DUBLIN PROJECT: ST. PATRICK WAY EXTENSION Page 20f5 Client ObliQations (AcQuisition) 1. Written approval of all acquisition documents in a timely manner. rffiI~ ASSOCIATED _ i I RIGHT OF WAY SERVICES, INC. 2. Direction as to administrative settlements, negotiating authority and condition of title acceptance. - 3. Providing any formats to be used by ARMiS on Client's behalf. 4. Selection of title company. 5. Review and approval of title company prepared escrow instructions including acceptable condition of title. B. Administrative Support ARMiS will provide a fully staffed in-house clerical team to provide word processing, reports, project tracking and budget control for all ARMiS services. CONFIDENTIALITY NOTICE: This information is intended only for the use of the recipient. Any disclosure, copying, distribution or use of any of the in ormation contained in this document is stricti rohibited. EXHIBIT B COMPENSATION SCHEDULE Compensation shall be paid per the attached Fee Schedule(s) entitled, "Budget Estimate" dated October 30, 2007" on a time and materials basis up to a maximum of $6,100.00. Consulting Services Agreement between City of Dublin and Associated Right of Way Services, Inc.--Exhibit B November 20,2008 Page 1 of 1 t":' CLIENT: CITY OF DUBLIN PROJECT: ST. PATRICK WAY EXTENSION. Page 3 of 5 ~~ ASSOCIATED ! I RIGHT OF WAY . SERVICES, INC. EXHIBIT B Budget Estimate October 30, 2007 Confidential for CLIENT Use Only Estimate Valid for 30 Days After Submission Client: City of Dublin Project: S1. Patrick Way Street Extension Owner I Address Property Interests Parcels: ! i APN i I -". PKII Dublin Retail Center L.P. I 7884 Dublin Blvd. & . Fee Simple I 6600 Golden Gate Dr. Temporary Construction ! Dublin, CA Easement i I 941-1500-044-2 i i 941-1500-045 I ! Assignment Provide Negotiation/Acquisition services for one property in the City of Dublin. Summary: Cate~ories: Scope of Services: Estimated Budqet 1. Negotiations / Acquisitions I Includes preparation of one partial acquisition , $5,500 1 (Time Charged) I offer in accordance with Government Code i I Section 7267.2. Services assume there is only ! lone (1) owner or owner's representative for each i i i i property and there area no lessees interests to be i i acquired. Monitor escrows. Provide I I condemnation support, if necessary, budget i ! permitting. I ! i ! i i ~ -- -'--"'- '---1-- - --~--------- -.---------.- ..- 2. Administrative Support and i Provide administrative support for Item no. l' $600 Project Tracking (Time I indicated above. I Charged) . Estimated Budget Total: $6,100 Start Requirements: Ending: I Agreement for Professional. Services (signed contract) -- Notice to Proceed. I I Negotia-ti:;~s are concluded upon delivery of Memorandum of Settlement to Client.~~dv~~~--f~~~. i ARNJS to Client that negotiations have reached an impasse and eminent domain should be i considered. NOTES: 1. Figures are based on information provided to AR/WS as of the date of this estimate. 2. Assumes CEQA, and if necessary, NEPA compliance has been met. 3. Subject to AR/WS Assumptions and Limitations, contained herein. 4. The Budget has been prepared based upon a 6 month project duration. An extended or reduced project schedule will increase the estimated budget. 5. A 20% contingency is recommended but is not included in the above figures. CONFIDENTIALITY NOTICE: This information is intended only for the use of the recipient. Any disclosure, copying, distribution or use of any of the information contained in this document is strictly rohibited. CLIENT: CITY OF DUBLIN PROJECT: ST. PATRICK WAY EXTENSION Page 4 of 5 ~t ~ ASSOCIATED I RIGHT OF WAY SERVICES, INC. ARIWSFee Schedule 2007 Service Hourly Rate Principal Consultant Managing Consultant Consultant I Consultant II Consultant III Right of Way Technician Administrative Support $180.00 $130.00 - $150.00 $115.00 $105.00 $90.00 $75.00 $55.00 Appraisal Reports Appraisal Services (Hourly) Relocation Plans/Reports Subcontractors Depositions, Court Appearances, Arbitrations / Mediations, Hearings, and Testimony (including preparation) Lump Sum $185.00 Lump Sum* Cost + 10% $225.00 Fees include direct and indirect expenses and profit. *May be billed on an hourly basis. CONFIDENTIALITY NOTICE: This injormation is intended only jar the use oj the recipient. Any disclosure, copying, distribution or use oj any oj the injormation contained in this document is strictly rohibited. CLIENT: CITY OF DUBLIN PROJECT: ST. PATRICK WAY EXTENSION Page 5 of 5 ~~ ASSOCIATED . ! I RIGHT OF WAY SERVICES, INC. J;, General Assumptions and Limitations 1. CLIENT to provide prompt approval of all acquisition and relocation documents. Significant transmittals to be approved by CLIENT prior to use. Administrative settlements and/or contract addenda to be pre-approved by CLIENT. ARMIS 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 ARMIS; not "ala-carte". 2. As applicable, CLIENT to provide written appraisal approval. CLIENT to sign Offers of Just Compensation as reflected in the Appraisal Summary Statement(s). CLIENT 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 CLIENT 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. CLIENT to provide adequate appraisal maps, plat maps, construction plans, preliminary title reports, deed legal descriptions and deed face sheets (for easements) suitable for recording. CLIENT to provide .environmental impact report or statement with mitigation measures outlined as these may effect the appraisal and/or acquisition process. ARMIS will reasonably rely upon the accuracy, timeliness and completeness of the information provided by CLIENT. CLIENT 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 ARMIS Fee Schedule. The not to exceed total compensation amount agreed to between ARMIS and Cl.:IENT 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. ARMIS is not responsible for any material change to the Scope of Work due for 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 CLIENT, 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. Charges for preparation or attendance at depositions, relocation appeals, expert witness testimony or court appearances are not included in the budget. 7. Budget to be reviewed periodically. ARMIS may reapportion budget allocations among categories. 8. Escrow costs, if any, shall be paid by CLIENT. Escrow instructions to be prepared by Title Company with ARMIS coordination. CLIENT to determine acceptable condition of title and what, if any, title exceptions to take "subject to". ARMIS to assist and consult as requested. 9. ARMIS will, upon written or verbal notice from CLIENT, suspend, delay, or interrupt all or a part of the scope of service. In such event, ARMIS will resume the scope of services upon written or verbal notice from CLIENT and an appropriate extension of time and costs will be mutually agreed upon within a reasonable time following re-initiation of all or ariy part of the Scope of Services. 10. CLIENT will give prompt notice to ARMIS whenever CLIENT observes or becomes aware of any development that affects the scope or timing of ARMIS' Scope of Services, or any defect in the work of ARMIS. 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 ARMIS. 13. ARNVS ~ understands that construction and design plans are subject to some change. ARMIS will accommodate any changes in the property requirements, including number or parcels, acquisitions and relocations. Changes in proposed acquisitions after appraisals have begun or negotiations/relocations have commenced will add time and expense to assignments. The parties acknowledge that such revisions may add to costs. 14. ARMIS reviews and adjusts billing rates and fees from time to time, generally as of January 1st of each year. Any rate adjustments will be reflected in the ARMIS invoice. 15. Except for CLIENT's obligations to pay for services rendered, no liability will attach to either ARMIS or CLIENT from delay in performance or non-performance caused by circumstances or events beyond the reasonable control of the party affected, including, but not limited to, acts of God, fire, flood, explosion, war, request or intervention of a governmental authority, court order, labor relations, accidents, unanticipated delays or inability to obtain materials, equipment, fuel or transportation. CONFIDENTIALITY NOTICE: This information is intended only for the use of the recipient. Any disclosure, copying, distribution or use of any of the in ormation contained in this document is stricti rohibited