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STAFF REPORT CITY CLERK
DUBLIN CITY COUNCIL File # ^[~p]~0-~,~
DATE: July 19, 2011
TO: Honorable Mayor and City Councilmembers
FROM: Joni Pattillo, City Manager
SUBJECT: Approval for Plan to Use 2009-2010 Proposition 1 B- Local Streets and Roads
Program Funds and Approval of Consultant Agreement for Engineering Services
with BKF Engineers for the West Dublin BART Golden Gate Drive Improvements
Project, CIP No. 960027
Prepared By: Frank Navarro, Senior Civil Engineer
EXECUTIVE SUMMARY:
The City of Dublin is scheduled to receive approximately $648,618 as part of the distribution of
State Proposition 1 B(Prop 1 B) Local Streets and Roads Program funds. The City is proposing
that these funds be allocated to the West Dublin BART Golden Gate Drive Improvements
Project. One of the requirements of the Prop 1 B program is that the local entity must approve a
plan identifying the project or projects intended to be completed using these bond proceeds.
City Council approval is also needed to secure consultant engineering services, and an
agreement with BKF Engineers is recommended to complete the design phase of the project.
FINANCIAL IMPACT:
As approved in the Fiscal Year 2011-2012 Update to the 2010-2015 Capital Improvement
Program (CIP), the total funding for the West Dublin BART Golden Gate Drive Improvements
Project is $1,295,618. The source of funding includes $648,618 from State Proposition 1B
(Highway Safety Traffic Reduction Bond) and $647,000 from Federal Transportation for Livable
Communities Grant (SAFETEA-LU). The initial design contract proposed with BKF Engineers
has a not-to-exceed cost of $150,797 and is within the parameters estimated as part of the
project budget.
RECOMMENDATION:
Staff recommends that the City Council: 1) Adopt the Resolution Approving a Plan to Use 2009-
2010 Proposition 1 B- Local Streets and Roads Program Funds, and 2) Adopt the Resolution
Approving Agreement with BKF Engineers to Provide Consulting Services for the West Dublin
BART Golden C~te Drive Improvements Project
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Submitted B Reviewed By ' evie ed By
ublic Works Director Administrative Services Director Assistant City ager
Page 1 of 3 ITEM NO. ~°~' + 0~
II
DESCRIPTION:
Proposition 1 B, approved by California voters in November of 2006, authorized the issuance of
$19.925 billion in bond funds focused on transportation improvements. One element of this
program was the provision of $2 billion allocated to cities and counties to fund the maintenance
and improvement of local transportation facilities.
As part of the 2007-2008 State Budget, the legislature authorized the distribution of the first
portion of Prop.1B Local Funds. A total of $550 million was distributed to cities. The City of
Dublin's share of these funds was $701,758.84 which was used to partially fund the Dougherty
Road Improvements - Houston Place to I-580 project. .
In the 2009-2010 State Budget, the legislature distributed the second and final portion of
funding. The City is eligible to receive an additional $648,617.63 for a total Prop 1 B allocation of
$1,350,376.47.
The State Department of Finance is administering the distribution of these funds, and in a letter
dated January 15, 2008, announced the requirements for agencies to receive the funds. The
City Council must approve a plan for the use of the amount of funds available. At the end of
each fiscal year the State will request an updated report from the City. This will identify
progress on the plan and allow the City to provide any new plans on the use of the funds. The
State anticipates accepting the updates and changes only once per year. The City will be
required to report annually until the project is completed and funds have been expended.
The provisions of the program, as included in implementing~ legislation, are that the funds be
expended within three years following the distribution by the State Controller. Therefore, the
2009-2010 funds must be expended by June 30, 2013. Staff proposes to expend the funds
during the construction of the West Dublin BART Golden Gate Drive Improvements project (CIP
Project No. 960027). .
In 2010 the City, in a joint effort with the Bay Area Rapid Transit District (BART), was awarded a
grant from the federal Transportation for Livable Communities (TLC) program administered by
the Metropolitan Transportation Commission (MTC). The cooperative project was identified by
MTC as an important link between the West Dublin BART Station and the adjacent Downtown
Specific Plan area. The goal of the grant and the project is to enhance pedestrian, bicycle, and
public transit connections within the West Dublin BART Station and along the Golden Gate
Drive corridor. The BART portion of the project proposes to construct an enhanced pedestrian
plaza area, landscaping, and numerous transit and bicycle facility improvements at the station.
The City portion, known as the Golden Gate Drive Improvements Project, will improve Golden
Gate Drive from Dublin Boulevard to the traffic circle at the end of Golden Gate Drive. Key
features of the project will include pavement widening to accommodate Class II bicycle lanes,
traffic calming features, accent paving, widened sidewalk, decorative lighting, street trees,
median, and landscaping. The project will also include monument, median marker, and
wayfinding signs consistent with the City of Dublin Streetscape Master Plan.
The proposed plan is to submit the use of 100% of the remaining allocated Prop 1 B funds
($648,617.63) towards CIP Project No. 960027, West Dublin BART Golden Gate Drive
Improvements. The adopted Fiscal Year 2011-2012 Update to the 2010-2015 CIP allocated
Prop 1 B funds and federal Transportation for Livable Communities (TLC) grant funds ($647,000)
Page 2 of 3
to the project. The City's allocation of Prop 1 B funds will provide the required minimum 20%
local match ($129,400) for the federal grant funds and will provide additional funds to complete
the proposed project scope.
Staff expects that design engineering, including federal and state environmental clearance,
should be complete by the end of this year. The project is expected to be advertised for
construction in the Spring of 2012. While initial construction may begin in 2012, final
expenditure of 1 B funds for construction is not required until 2013. Having said this,
construction of the City's project will be coordinated with the construction phasing of the
adjacent apartment project (Essex) and may continue on into 2013.
Staff is proposing to contract with BKF Engineers for engineering and related services
(Attachment 2). BKF designed the adjacent Essex development frontage improvements, the
West Dublin BART entry improvements, and has extensive experience in streetscape design.
BKF has provided a proposal in the amount of $150,797.00 for engineering services.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
Copies of this Staff Report have been provided to:
Annie Young, Landscape Architect/Planner, Metropolitan Transportation Commission
John Rennels, Principa/ Property Development Officer, Bay Area Rapid Transit District
James Gravesande, Principal Engineer, Bay Area Rapid Transit District
ATTACHMENTS: 1. Resolution Approving a Plan to Use 2009-2010 Proposition 1 B-
Local Streets and Roads Program Funds (with Exhibit "A")
2. Resolution Approving Agreement with BKF Engineers to
Provide Consulting Services for the West Dublin BART Golden
Gate Drive Improvements Project (with Exhibit "A")
G:\CIP\West Dublin BART Golden Gate Drive Improvements\Staff Report WDB Golden Gate Drive Improvements 071911.doc
Page 3 of 3
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RESOLUTION NO. - 11
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIId
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APPROVING A PLAN TO USE 2009-2010 PROPOSITION 1 B- LOCAL STREETS AND
ROADS PROGRAM FUNDS
WHEREAS, the City of Dublin is eligible to receive transportation funds from the State of
California as part of Proposition 1 B approved by the voters in November 2006; and
WHEREAS, the requirements imposed by the State are that the City Council must adopt
a Plan for the use of the funds being allocated for Fiscal Year 2009-2010; and
WHEREAS, the funds must be used for eligible projects as defined by the State Bond
Act; and
WHEREAS, once submitted, the City may file updated plans or changes to the plan on
an annual basis;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin
hereby approves the Plan For Expenditure of Fiscal Year 2009/2010 Allocation of Proposition
1 B Funds, attached hereto as Exhibit "A."
BE IT FURTHER RESOLVED that the City Manager or her designee is authorized to file
with the State required submittals in order to receive the funds.
PASSED, APPROVED AND ADOPTED this 19th day of July, 2011, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
Mayor
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A TACHMENT /
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EXHIBIT "A"
CITY OF DUBLIN PLAN FOR EXPENDITURE OF
FISCAL YEAR 2009-2010 ALLOCATION OF PROPOSITION 1 B FUNDS
Date Plan Approved By City Council:
Amount of Funds Allocated To City Of Dublin:
Project:
Total Project Cost:
July 19, 2011
$648,617.63
West Dublin BART Golden Gate Drive
Improvements - (CIP No. 960027)
$1,295,618
(Cost as estimated in the 2011-2012
Update to the 2010-2015 Dublin Capital
Improvement Program)
PROJECT DESCRIPTION:
The project provides for a number of pedestrian, bicycle, and streetscape enhancements along
Golden Gate Drive from Dublin Boulevard to the West Dublin / Pleasanton BART station. Key
features of the project include:
• Class II bike lanes
• Widened sidewalks
• Pedestrian-scale lighting
• Street trees
• Median, bulbouts, and traffic circle
• Landscape improvements
• Decorative paving
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RESOLUTION NO. -11
A RESOLUTtON OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING AGREEMENT WITH BKF ENGINEERS TO PROVIDE CONSULTING
SERVICES FOR THE WEST DUBLIN BART GOLDEN GATE DRtVE IMPROVEMENTS
- PROJECT
WHEREAS, the City's 2010-2015 Five-Year Capital Improvement Program includes the
West Dublin BART Golden Gate Drive Improvements Project (CIP No. 960027) that would
enhance the Golden Gate Drive corridor; and
WHEREAS, these improvements are being funded with federal and state transportation
funds; and ~
WHEREAS, the City desires to utilize the services of BKF Engineers to perForm design
engineering and related services for said project;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the agreement with BKF Engineers for consulting services, for a cost not to
exceed ONE HUNDRED AND FIFTY THOUSAND, SEVEN HUNDERED AND NINTY-SEVEN
DOLLARS AND 00 CENTS ($150,797.00).
BE IT FURTHER RESOLVED thaf the City Manager is authorized to execute the
agreement, attached hereto as Exhibit "A".
PASSED, APPROVED AND ADOPTED this 19th day of July, 2011, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
G:\CIP\West Dublin BART Golden Gate Drive Improvements\Reso BKF Contract 071911.doc
Mayor
~ATTACHMENT ~
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND BKF ENGINEERS
THIS AGREEMENT for consulting services is made by and between the CITY OF DUBLIN ("City")
and BKF ENGINEERS ("ConsultanY') as of , 2011.
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 June 30, 2013. Consultant shall complete the work described in
Exhibit A prior to that date, unless the term of the Agreement is otherwise extended
pursuant to the provisions for modification of the Agreement contained 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
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 Assignment 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 ConsultanYs 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 One
Hundred Fifty Thousand, Seven Hundred and Ninety Seven Dollars and No Cents ($150,797.00),
notwithstanding any contrary indications that may be containetl in Consultant's proposal, for services to be
performed and reimbursabfe 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 rentlered pursuant to this Agreement. Consultant shall submit all invoices to
Consulting Services Agreement between July 19, 2011
City of Dublin antl BKF Engineers Page 1 of 13
Exhibit A to Resolution
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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.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consuitant's estimated costs of providing the services required iiereunder,
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, antl subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation requiretl untler this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
^ Clear numerical identification, with no duplication of numbering;
^ The beginning and ending dates of the billing period;
^ A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement, and
the percentage of completion;
^ At City's option, for each work item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person doing
the work, the hours spent by each person, a brief description of the work, and
each reimbursable expense;
^ The total number of hours of work performed, during the invoice period, under the
Agreement by Consultant and each employee, agent, and subcontractor of
Consultant performing services hereunder;
^ The ConsultanYs 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 Pa,yment• 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 motlified prior to the submission of such an invoice by a properly
executed change order or amentlment.
2.4 Hourly 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.
Consulting Services Agreement between July 19, 2011
City of Dublin and BKF Engineers Page 2 of 13
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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 ~ment 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, antl 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 fee. 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 matle part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employetl directly or indirectly by Consultant. The Statutory Workers'
Consulting Services Agreement between July 19, 2011
City of Dublin and BKF Engineers Page 3 of 13
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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, shali
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 ConsultanYs insurer if
such coverage is suspended, voided or reduced in coverage or in limits.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General re~uirements. 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 antl 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 coverage. Commercial general coverage shall be at least as
broad as Insurance Services O~ce 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
endorsemenf shall be attached limiting the coverage. •
4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or adtled as an endorsement to the policy:
a. City and its officers, employees, agents, antl volunteers shall be covered
as additional insureds with respect to each of the following: liability arising
Consulting Services Agreement between July 19, 2011
City of Dublin and BKF Engineers Page 4 of 13
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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 shail contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or
volunteers.
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.
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 ConsultanYs insurer if such coverage is
suspended, voided or reduced in coverage or in limits.
4.3 Professional Liability Insurance. Consu~tant, 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 shafl 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:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
Consulting Services Agreement between July 19, 2011
City of Dublin and BKF Engineers Page 5 of 13
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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 Acceptability of insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VI I.
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 require all subcontractors to meet the
insurance requirements stated herein. Each subconsultant shall furnish separate
certificates and endorsements.
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-Insured Retentions. Consultant shall disclose to and
obtain the approval of City for the self-insured retentions and deductibles before
beginning any of the services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Atlministrator, 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
tletluctible or self-insured retention levels with a requirement that Consultant
Consulting Services Agreement between July 19, 2011
City of Dublin and BKF Engineers Page 6 of 13
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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. 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 ai~e not the exclusive remedy for
ConsultanYs breach:
^ Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
^ Ortler 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,
unti~ Consultant demonstrates compliance with the requirements hereof; and/or
^ Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultantshall
indemnify, defend with counsel approved 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 Consultanf or its employees,
subcontractors, or agents, by acts for which they could be held strictly liable. The foregoing obligation of
Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises
wholly from the negligence or wil~ful misconduct of the City or its afficers, employees, agents, or volunteers
and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to
the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Consultant
to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the 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 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 consitleration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competentjurisdiction or the California Public Employees
Consulting Services Agreement between July 19, 2011
City of Dublin and BKF Engineers Page 7 of 13
11~1g
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 anjr 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 CONSUL~ANT.
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 resuits 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 Agent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern tliis Agreement.
7.2 Compliance with A~plicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Regulations. 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.
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 tegalfy required to practice their respective
professions. Consultant represents and warrants to City that Consultant antl 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
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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 Equai O~portunity, Consultant shall not discriminate, on the
basis of a person's race, religion, color, national origin, age, physical or mentai 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 appiicable federal, state, and local laws,
policies, rufes, and requirements related to equal opportunity and nontliscrimination 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 tfie 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
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.
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8.4 Assignment and Subcontractinc~ City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a
determination of Consu~tant's unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantiai inducement to City for entering into this
Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator. Consultant shall not subcontract any portion of the
performance contemplated and provided for herein, other than to the subcontractors noted
in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Consultant shall
survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms
of this Agreement, City's remedies shall included, but not be limited to, the following:
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 hatl
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, photqgraphs, 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 otherdocuments are
confidential antl will not be released to third parties without prior written consent of both
parties.
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9.2 Consultant's Books and Records. Consuitant 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. At the City's option, 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 may be subject to the examination and audit of
the State Auditor, 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 of Alameda or in the United States District Court for
the Northern District of California.
10.3 Severabilitv. 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 does 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.
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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 Mark Lander, City
Engineer ("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: Eric Girod
BKF Engineers
4670 Willow Rd., Ste 250
Pleasanton, CA 94588
Any written notice to City shall be sent to: Frank Navarro
City of Dublin Public Works
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 reporUdesign 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.
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Seal and ignature of Registered Professional with
repo~/design responsibility.
10.12 Integration. 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
Joni Pattillo,
City Manager
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
CONSULTANT
Dan efer,
Principal / Vice President
G:1CIP1West Dublin BART Golden Gate Drive Improvements~Agreement BKF Engineers Design.doc
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EXHIBIT A
SCOPE OF SERVICES
To provide design and construction engineering services as delineated in the attached proposal
dated July 8, 2011, for the West Dublin BART Golden Gate Drive Improvements Project.
G:1CIP1West Dublin BART Golden Gate Drive ImprovementslAgreement BKF Engineers Design.doc
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EXHIBIT B
COMPENSATION SCHEDULE
The term of the Agreement shall end on June 30, 2013. Consultant may request an adjustment of
rates for the second and third years of the term, provided that no such adjustments of rates shall be
effective unless and until the adjustment is agreed to in writing by the City Manager or other designated
official of City authorized to obligate City.
Compensation shall be paid per the attached Fee Schedule.
City shall pay Consultant on a time-and-materials basis in an amount not to exceed the total sum of
One Hundred Fifty Thousand, Seven Hundred and Ninety Seven Dollars and No Cents ($150,797.00) for
services to be performed pursuant to this Agreement. Consultant shall submit invoices at the end of each
specific project or as agreed between Consultant and City regarding each specific project, based on the
cost for services performed.
The total sum stated above shall be the total which City shall pay for the services to be rendered by
Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering services pursuant to this Agreement
City shall make no payment for any extra, further or additional service pucsuant to this Agreement
unless such extra service and the price therefor is agreed to in writing executed by the City Manager or
other designated official of City authorized to obligate City thereto prior to the time such extra service is
rendered and in no event shall such change order exceed twenty-five percent (25%) of the initial contract
price.
The services to be provided under this Agreement may be terminated without cause at any point in
time in the sole and exclusive discretion of City. If the Agreement is terminated by City, Consultant shall be
entitled to receive just and equitable compensation for any satisfactory work completed on such documents
and other materials to the effective date of such termination. In that event, all finishetl and unfinished
documents and other materials shall, at the option of the City, become City's sole and exclusive property.
Consultant hereby expressly waives any and all claims for damages or compensation arising under this
Agreement. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to
date.
The Consultant 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.
G:ICIPIWest Dublin BART Golden Gate Drive ImprovementslAgreement BKF Engineers Design.doc
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