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HomeMy WebLinkAbout4.02 On Call Architecture Svcs G~~~ O DUe~~ ~9' STAFF REPORT CITY CLERK ~ C~ ~ CITY COUNCIL File #600-30 ~~Llroc~~~ DATE: October 18, 2011 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager ~~a SUBJECT: Consultant Services Agreements with Urban Planning Partners, Environmental Foresight, Inc., and Kluber & Associates, Inc. to provide on-call services . Prepared by Jeff Baker, Planning Manager EXECUTIVE SUMMARY: The City Council will consider approving Consulting Services Agreements with Urban Planning Partners, Environmental Oversight, Inc., and Kluber & Associates, Inc. Staff is seeking to expand the list of on-call consultants to ensure that adequate resources are available to continue the general processing of entitlements for development projects as well as plan checks and field inspections for those projects. FINANCIAL IMPACT: All charges will be reimbursed with funds collected from project applicants in conjunction with the review of their entitlement applications or charged to the Department budget in accordance with the adopted budget. RECOMMENDATION: Staff recommends that the City Council adopt a Resolution approving Consulting Services Agreements with Urban Planning Partners, Environmental Foresight, Inc., and Kluber & Associates, Inc. to provide planning and landscape architecture services to the Community Development Department and the Public Works Department on an on-call basis. Submitted By Reviewed By Director of Community Development Assistant City Manager Page 1 of 2 ITEM NO. 4.2 DESCRIPTION: The City Council has authorized the hiring of consultants, on an as-needed basis, to assist Staff with specific areas of technical expertise (i.e. project analysis under the California Environmental Quality Act, noise, biology, traffic, and design review, etc.) and overflow of work. The City has contracts with several consulting firms that provide their expertise on a project by project basis. Staff is currently seeking to expand the list of on-call consultants to ensure that adequate resources are available to continue the general processing of entitlements for development projects as well as plan checks and field inspections for those projects. Staff is recommending the addition of three consultants including Urban Planning Partners, Environmental Oversight, Inc. and Kluber & Associates, Inc. Urban Planning Partners is a planning firm that can assist with processing entitlement applications on an on-call basis. Environmental Oversight, Inc. and Kluber & Associates, Inc. are both Landscape Architecture firms that can assist with design review of landscape plans, as well as plan checks and field inspections for the Community Development Department and Public Works Department. An overview and resume for each consultant is included as Attachments 1-3. The standard Consulting Services Agreement contains provisions that the consultants will only perform work on a time and material basis. No work will be done without expressed permission, and all costs will be reimbursed by the project applicant or charged to the Department budget in accordance with the adopted budget. A Resolution approving the Consulting Services Agreements is included as Attachment 4 to this Staff Report. The resolution authorizes the City Manager to execute the agreements on behalf of the City. NOTICING REQUIREMENTS/PUBLIC OUTREACH: Not required. ATTACHMENTS: 1. Resume -Urban Planning Partners 2. Resume -Environmental Foresight, Inc. 3. Resume -Kluber & Associates, Inc. 4. Resolution approving Consulting Services Agreements with Urban Planning Partners, Environmental Foresight, Inc., and Kluber & Associates, Inc., to provide planning and landscape architecture services to the Community Development Department and the Public Works Department on an on-call basis. Page 2 of 2 Urban Planning Partners is a policy and environmental planning firm that was established in 2009. The firm is located in Downtown Oakland and is 100-percent women owned. Our key services include land use policy, environmental review, contract planning, grant writing and entitlement assistance. Trust, objectivity, and insight are the foundations of our work. Our dedica- tion, strong communication skills, and diverse range of experience enable a successful partnership with our clients. We collaborate with our clients and the communities in which we work to achieve approval and implementation of policies and projects that make better urban environments. ~ _ t _ . 13 o _ - v ~ ~ _ _ 3.~,y _ ..,a.r - r. r`: . _ - fry ~ r _ ~`~P ~ a - - ~ ~ _ ~ S i - tl ~ _~i f ~ ~ if. 1 4r~ a~°' ~ ~ - ~ C,f. - ~ _ ~ i I i ,a., , E PRINCIPAL/PRL3}ACT MANAGER EXPERIENCE Lynette has over 20 years of planning experience working for laath public agencies and private landowners and developers. The majority of Lynette's work has involved policy planning, environ- mental review, and entitlement processing/strategy for urban infill and reuse development projects, Her recent efforts have focused on directing the planning entitlement process for several significant redevelopment and public/private partnership projects. Lynette also assists municipai governments in developing land and development regulations, managing projects, negotiating development agreements, updating General Plans and zoning codes, and preparing specific plans and master plans. WORK HISTORY RRM Design Group Principal 2007 - 2009 LSA Associates, Inc. ~ Principal 2000 - 2007 Associate 1995 - 200fl City of Saratoga Planner 1992 - 1995 City of Campbell Planner 1 991 - 1 992 RRM Design Group Planner 3988,- 1993 EDUCATION Bachelor of Science, City and Regional Planning, California Poiytechnic State University AFFILIATIONS American Institute of Certified Planners (AICP) American Planning Association {APA) Association of Environmental Professionals {AEP) San Francisco Planning & Urban Research Association (SPUR) Urban Land Institute {ULi)-5F Executive Committee member SELECT PROJECT EXPERIENCE Lynette has prepared CEQA documentation for over two hundred projects. She is recognized by her colleagues and clients for her strengths in working on complex and controversial projects; prepar- Dias Page z ing comprehensive, yet easy to understand documents; effectively presenting complex projects and findings to diverse audiences, and identifying and solving project challenges. Same of the key projects she has directed ar managed include: • MacArthur Transit Village EIR far the City of Oakland + Mirabelia San Francisco Bay Parkview Plaza EIR and Contract Planning for the City of Faster City Emeryville Marketplace EIR far the City of Emeryville + Truckee Railyard Master Plan and EIR for the Town of Truckee • Derry Lane Mixed-Use Development i"IR far the City of Menlo Park + Point Richmond Shores Development EIR far the City of Richmond + Terminal One Site Remediation Environmental Review for the City of Richmond ~ Uptown Mixed-Use Project EIR for Forest City Residential West/City of Oakland + Fax Theater Rehabilitation Project IS/MND for the City of Oakland • Thomas Berkley Square EIR for Alameda County Community Development Agency + Pixar Headquarters Expansion Project 15/MND for the City of Emeryville + Catellus Mixed Use Development EIR far the City of Alameda + Naval Air Station/Fleet Industrial Supply Center Disposal and Reuse EIR far the City of Alameda + Ford Assembly Plant Redevelopment Program and Project EIR for the City of Richmond + Strang Neighborhoods Initiative Program EiR for the San Jose Redevelopment Agency Projects Lynette is currently managing include the MacArthur BART Transit Village Supplemental CEQA Review far the City of Oakland, the Fort Bragg Miif Site Specific P[an far Georgia-Pacific, LLC, the High & MacArthur Senior Housing Project E!R for the City of Oakland, the Astoria at Wilder Project EIR for the City of Orinda, and the Alhambra Highlands Residential Development EIR for the City of Martinez. PRESENTATIONS + Global Climate Change and CEQA Symposium, March 2009, AEP State Conference, San Fran- cisco, CA + Staffing Treads: Making Contract Planners a Seamless Extension of City Staff, October 2007, California Chapter American Planning Association Conference, San Jose, CA • Understanding the California Environmental Process; 2407, 20fl3, and 2002; Association of Environmental Professionals, Oakland, CA + The Success of Public/Private Partnerships, March 2005, American Planning Association Nation- al Conference, San Francisco, CA ` ~ PRfNC[PAL~PROJECT MANAGER EXPERIENCE Charity has over ten years of experience in both the public and private planning sectors. Her work focuses mainly on contract planning, environmental review and entitlement assistance for infill and mixed-use projects. She has significant experience in processing land use entitlements and man- aging the environmental review process. Many of her projects have involved extensive community participation, environmental document editing and review, and presentations in a public forum. She is currently managing preparation of the Fort Bragg Mill Site Specific Plan, an EIR for a senior housing project in Oakland, and the Alhambra Highlands EIR for the City of Martinez. She is also assisting a solar energy company with obtaining entitlements for a number of projects through- out California. Some significant projects she has recently managed include serving as the City's contract planner for the MacArthur BART Transit Village planning process; managing the Truckee Railyard Master Plan and EIR; preparing the ElR for Lincoln and Mission Condominium project for the City of San Rafael; serving as the contract planner for the City of Ladi for the Westside and Southwest Gateway annexation projects; and serving as contract planner for several commercial and residential projects in the City of 6erkeley. WORK HISTORY RRM Design Group Associate 20fl7 - 2009 LSA Associates, Inc. Senior Planner 2005 - 2fl07 City of Dublin Associate Planner 2004 - 2005 City of Anaheim Planner 2000 - 2004 EDUCATI©N Bachelor of Arts, Geography, California State University Fullerton AFFIL{ATIDNS American Planning Association (APA} Association of Environmental Professionals (AEP) Urban Land institute (ULI} Wagner Page 2 SEf_ECT PROJECT EXPERIENCE Recurrent Energy CEQA Project Management, San Francisco, CA. Charity is working as a project manager for Recurrent Energy to strategize on CEQA and entitlement approaches for several juris- dictions in Southern California. Key tasks associated with these projects relate to coordination of ail technical studies, including biological surveys, and preparing applications for review by planning agencies. Alhambra Highlands Supplemental EIR, Martinez, CA. As Project Manager, Charity prepared a Fo- cused EIR far a new hillside residential development project in the City of Martinez. Key issues with this project included neighborhood compatibility, visual impacts and biological resources. MacArthur BART Transit Village EIR and Contract Planning, Oakland, CA. The City of Oakland ap- proved the MacArthur Transit Village project in Juiy 2008. As Project Manager, Charity prepared and coordinated multi-agency review of the Draft EIR for this high-profile TOD project, In addition, as the Gity's staff planner, Charity was responsible for critiquing development plans to ensure consist- ency with City standards, policies and guidelines for Transit Oriented Development. 1=ollowing City Council approval, Charity continues to work with the City an the project's subsequent approvals. Truckee MITI SiteJRaiiyard Master Pfan and EIR, Truckee, CA. As Project Manager, Charity managed the CEQA process for the redevelopment of this 75-acre Brownfield site immediately adjacent to the historic downtown, Charity also worked with the Town to develop goals, policies, and correspond- ing development standards and design guidelines far the Truckee Railyard Master Plan. City of Berkeley On-Call Contract Planning Services, Berkeley, CA. As Contract Planner on over i 6 projects for the City, Charity evaluated proposed projects for consistency with local land use and planning policy, and processed development applications for large and medium-sized residential, commercial and mixed-use projects including: + l=our mixed-use projects on San Pabfo Avenue + Relocation of Freight & Salvage Coffee House into the Downtown Arts District • Renovation of the Wright's Garage Building at College and Ashby Avenues. PRE5ENTATION5 • Transportation Analysis for Planners: What We Don't Know, But Are Too Ashamed to Ask, Octo- ber 2009, California Chapter American Planning Association Conference, Squaw Valley, CA + Staffing Trends: Making Contract Planners a Seamless Extension of City Staff, October 2007, California Chapter American Planning Association Conference, San Jose, CA ~I I E FIRM PROFILE 9.i 1 I - I rr- v~- ~ ~ .c`-=.~ _ -ate - ~ _ _ - ' ENVfRONM~NTAf_ ~OR~5fGHT, fNC. Landscape Architecture ~ } ~ _ . Environmental ]?oresight, Inc. is a professional consulting firm special- ° _ _ _ ° izing in full: scope landscape architectural services far new construction ~ _ - = and renovation related projects. Our project work ranges from public to h ~ ~ f private sectors including large-scale residential developments, schools, - parks, civic/community facilities, commercial/retail space, private , `a---=~. v xesidential, and model homes. The founder of the firm, Scott 1. Feuer, is a California licensed Landscape Architect with aver eighteen years of ffr - , ~ professional experience. f ;t - _ Our mission is to work with our clients to create outdoor spaces for _ ~,a r~ people by using sensible thought for the future, from conceptual site - design througiz final project construction. In short, ive design memo- - rcrble outdoor environments for living, working, and recreation with prudent regard for the future, Vision Environmental F'aresight, Inc. was founded with the vision to design r ~ ; ~ _ places for people to enjoy the outdoor environment. Essentially we - create outdoor places for people to play, recreate; work, and shop while ` respecting the anviranment through the use of sound design principles. Benefit t© Our Clients - Our comprehensive services provide innovative solutions to our clients' projects by way of professional skills, s#rong leadership, and current Services technology while practicing good ste?vardship of the landscape environ- Conceptua[Site Planning and Landscape Design meet through skillful design. Our ability to provide consistent prafes- Stormwater Landscape Treatment Mitigation sional quality services on time and on budget repeatedly is essential to `Green' BuiEding Practices for `CEEB' Certification servuig our Clients' desire to have a competent consultant team. Most importantly, tive believe our reliable commarnication skills yield rela- Landscape Resign Guidelines tionships and relationships are what truly build quality projects. Landscape Graphics and Presentation laxhibits Technology Preliminary Landscape Plans The firm mainta-ins estate-of the-art computer network and produe- . Construction Boeuments lion sofhvare. We utilize the latest version afAutoCAll and the Adobe CanstructionAdministration Creative Suite (Photoshap, Illustrator, Inl7esign, Acrobat, etc.) as our Virtual Landscape Staging primaiy workflow software aliorving us to work e#I'iciently with our = online Design consulting for Homeowners clients, engineers, architects, and other project team consultants. We strongly believe that staying educated with current technology is an es- sential teal in providing duality service to our clients. I Environments[ Foresight, Enc. ~ 1855 Olympic Boulevard 2 Suite 105 4 Walnut Creek, California 9459& 7 (925) 945-0300 ~ F (925} 945-668$ a W vwr~w.environmentafforesight.com i i~ RE=SLIMES 2.1 z ~,h _ . c ENVIRONMENTAL E FORESIGHT, 1NC. • Landscape Architecture Sean 1. Feuer R5I_A President/Senlor Principal State License Scott is founder and Senior Principal of Environmental Foresight, Inc. SEate of California Licensed Landscape Architect He is a licensed California Landscape Architect and brings extensive License#4648 design, technical, and leadership experience to his practice; specifically focusing on designing memorable outdoor environments through the Educe#ion sensible use of sound design principles. Master of Science in Landscape Architecture, iTniversity of Wisconsin-Madison, December 1996. Frotn the beginning Scott has had a strong passion to create outdoor Bachelor of Science in Landscape Architechue, spaces for people. At age 8 he and a friend started a landscaping busi- Califomia State Polytechnic t}niversiry-Pomona, Tune Hess and continued weekly yard maintenance and installation for 15 1993. years until graduating college. Since selling his landscape maintenance business, Scott has worked an additional 18 years as landscape arclni- Atflllations feet, urban designer, and planner on a variety of projects throughout - Bay-Friendly Qualified Landscape Design Professional, North America and abroad. Stopwaste.org Professional Career History National Member, American Society of Landscape 1~ose Associates Landscape tlr'chitects, .Inc. 2002 to 2007. Scott's Architects (ASLA). leadership, design ability, and computer skills were important tomen- Loca[ Member, of the Northern California Chapter of toting staff and maintaining client relationships here. As Principal, he ASLA. was primarily responsible for directing the design team, evaluating the quality and pt-ogress of project work, and contributing to the company's ' HanarS Awards marketing and business operations. Certificate of Merit for Excellence in Landscape Architecture, American Society of Landscape ED.4W (now AECONI) I998 to 2002. Scott gained exposure to large- Architects (ASLA),199z-1993. scale to large-scale international projects and corporate business j Awarded Membership to The Honor Society of Sigma practices at this multi-disciplinary gunning firm. He was promoted to LambdaAlpha -The Mu Chapter California State Assocute, received his California Sta#e Landscape Architect's License, Polytechnic University a# Pomona for the study of and became a key player in the San Francisco office's Design Studio. Landscape Architecture, 1993. Award of Recognition far Outstanding Departmenra! ROMA Design Group 1996 to 1998. As a junior landscape architect, service, Department of Landscape Architecture, Scott worked on high prof le urban design projects, such as the Em- Universiry ofWisconsin-Madison, 1996. barcadero Ferry Plaza, the San Francisco University Faculty Housing Project, and the San Mateo Transit Center. Teaching Experience University of l~sconsin NladisonLundscapeArchitecture Graduate Department of Landscape Architeehue, University Schoo11994 to 1996. Scott studied the impacts of urban and rural de- of Wisconsin-Madison, Teaching Assistant, August 1994 to December 1996. Subjects assisted in teaching: velopment on Stream corridors and worked as a Teaching Assistant for Landscape Design/Site Planning, Landscape Graphics, the landscape architecture undergraduate program teaching landscape and Landscape History. history, site design, and graphics. ,3 se HRP LanDesign, Inc. 1993 to 1999. Scott worked as a Landscape Designer on a variety of projects around southern California, primarily designing ne~v housing projects, parks, and model homes while build- ing astrong foundation in CAD drafting and nngativx design. 1{ i i II J Environmental Foresight, Ina a 9555 Olympic Borahevard f Suite 9D5 ~ Walnut Creek, California 94596 T (925} $45-030D 4 F (925) 945-6888 4 W www.environmenfalforesight.carr~ K L U B E R ASSOCIATES, ING LANDSCAPE ARCWITECTURE Letter of interest Introduction Thank you for this opportunity to interview with the City of Dublin. Kluber + Associates is committed to providing the highest level of landscape architectural services and is uniquely qualified to meet the standard specification and plan requirements for the City. VVe can provide the City with plan check; field, facility and playground safety inspections and design services with a team of professionally certified landscape architects on an as- needed basis. INhy Kluber + Associates? Relevant Experience ICluber + Associates has a history of meeting the demands of public agency specifications and guidelines for aver 12 years. Our current list of public agency clients includes: City of Brentwood -Landscape Architectural Services, b+ years - Park and development plan check service including Streets of Brentwood - Streetscape design service CCC Public Works Special Districts -Landscape Architectural Services, 3+ years - Packet park and Streetscape design service . City of Martinez -Landscape Architectural Services, 1+ years - Neighborhood Park Improvements 1. Holiday Highlands Park 2. Nancy Boyd Park 3. Cappy Ricks Park City of Pinole -Landscape Architectural Services, 1+ years - Pinole Valley Park Soccer. Field and Parking Lot Improvements URS Corporation, Sacramento (private) -Landscape Architectural Sen+ices, 2+ years - Internal QC plan and specification check service - Construction observation Fundaments[ Principles Public safety, accessibility, sustainability and compliance with City standards are the starting point far all our work with public agencies. Trust The core of our successful relationship with public agencies is trust that results from a mutual respect far each other's role in serving the public. Letter of Inferesf - Kluf~er & Associates ASSOCIATES, ENe LANDSCAPIr ARCHITECTURE Resume Frank Kluber, ASLA, LEED®AP Principal Registration California Landscape Architect, CLA #4389 Nevada Landscape Architect, NLA #839 Education Master of Landscape Architecture, Harvard Graduate School of Design Bachelor of Arts, San Francisco State University, Magna Cum Laude MemlJerships American Society of Landscape Architects, Northern California Chapter USGBC Northern California Chapter Diablo East Bay Branch (DEBB) Alhambra Creek Watershed Planning Group, Martinez, California California Native Plant Society, East Bay Chapter Other Professional CertificationslWorkshops Rehahili#ation in the Garden, "Developing the Garden as a Tool fo Achieve Functional Therapeutic Oufcames." Sponsored by American Society of Landscape Architects; Levy Center Enabling Garden, Evanston IL; Schwab Rehabilitation Hospital, Chicago, IL; Montgomery Plaza, Chicago, IL; ASLA Annual Meeting and Expo Regenerating People and Places, 2009 Contra Costa Clean Water Program, Sfiormwater C.3 Compliance: Planning, Design and Construction of Law Impact Development Facilities Workshop certification, 2008 State of California, Division of State Architect "Access Plan Reviev~` Certification, 2008 Relevant Experience City of Brentwood, 5+ years CCC Public Works Special Districts, 3+ years City of Martinez, years City of Pinola, 1+ years URS Corporation, Sacramento, 2+ years ~I Klubar + Associates i RESOLUTION NO. XX - 11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING CONSULTING SERVICES AGREEMENTS WITH URBAN PLANNING PARTNERS, ENVIRONMENTAL FORESIGHT, INC., AND KLUBER & ASSOCIATES, INC. TO PROVIDE PLANNING AND LANDSCAPE ARCHITECTURE SERVICES TO THE COMMUNITY DEVELOPMENT DEPARTMENT AND THE PUBLIC WORKS DEPARTMENT ON AN ON-CALL BASIS, AND AUTHORIZING THE CITY MANAGER TO EXECUTE THOSE AGREEMENTS WHEREAS, the City Council has directed Staff to process development projects expeditiously and to hire consultants when services are needed; and WHEREAS, Staff is seeking to expand the list of on-call consultants to ensure that adequate resources are available to continue the general processing of entitlements for development projects as well as plan checks and field inspections for those projects on an as needed basis; and WHEREAS, the consulting firm Urban Planning Partners has demonstrated that they have the ability to perform planning services. The consulting firms Environmental Foresight, and Kluber & Associates have demonstrated the ability to perform the landscape architecture services required; and WHEREAS, the consultants will only perform work on a time and material basis; and WHEREAS, all costs will be reimbursed by the project applicant or charged to the Department budget in accordance with costs associated with certain projects; and WHEREAS, the contracts has been reviewed and approved by the City Attorney's Office as to form. NOW, THEREFORE, BE IT RESOLVED that the Dublin City Council does hereby approve Consulting Services Agreement with Urban Planning Partners, Environmental Oversight, Inc., and Kluber & Associates, Inc. which are included as Exhibits A, B, and C. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the agreements on behalf of the City. PASSED, APPROVED AND ADOPTED this 18t" day of October 2011 by the following vote: Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 1 of 16 AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 2 of 16 G:IAgendas120111Consultant Contract PlanninglCC Reso Consultant 10.18.11.doc Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 3 of 16 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND URBAN PLANNING PARTNERS ON-CALL CONTRACT FOR PLANNING SERVICES THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Urban Planning Partners ("Consultant") as of October 18, 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 Services 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 one year thereafter, except that the Agreement shall be automatically extended from year to year unless the Agreement is otherwise terminated, 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 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 1.2 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in Exhibit B, 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. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 4 of 16 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: ¦ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; ¦ The beginning and ending dates of the billing period; ¦ A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; ¦ At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; ¦ The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours; ¦ The Consultant's signature. 2.2 Monthly Payment. City shall make 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 Deleted. 2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 5 of 16 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the Compensation Schedule, included as Exhibit B. 2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate and not paid separately. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 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. 2.9 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 may furnish physical facilities such as desks, telephone service, 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. 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. 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 Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 6 of 16 not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on aself-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 aself-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 by either party, except after thirty (30) days' prior written notice by First Class U.S. mail, has been given to the City. A ten (10) day written notice to the City shall apply to non-payment of premium. Consultant shall provide a thirty (30) days written notice to City prior to implementation of a reduction of limits or material change of insurance coverage as specified herein. 4.2 Commercial General and Automobile Liability 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 coverage. 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 1 ("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: a. City and its officers, employees, agents, and volunteers shall be covered as insureds with respect to each of the following: liability arising out of Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 7 of 16 activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance orself-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 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 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. 4.3.1 Any deductible orself-insured retention shall not exceed $150,000 per claim. 4.3.2 An endorsement shall state that coverage shall not be canceled by either party, except after thirty (30) days' prior written notice by First Class U.S. mail, has been given to the City. A ten (10) day written notice to City shall apply to non-payment of premium. Consultant shall provide a thirty (30) days written notice to the City prior to implementation of a reduction of limits or material change of insurance coverage as specified herein. 4.3.3 The policy must contain a cross liability or severability of interest clause. 4.3.4 The following provisions shall apply if the professional liability coverages are written on a claims-made form: Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 8 of 16 a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptability 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 coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with certificates of insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.4.5 Deductibles and Self-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. Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 9 of 16 During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Consultant may increase such deductibles orself-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible orself-insured retention levels with a requirement that Consultant procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: ¦ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; ¦ Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or ¦ Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any applicable federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have 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 Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 10 of 16 apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competentjurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. 6.2 Waiver of Employee Benefits. 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. 6.3 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 this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 11 of 16 shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors 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 Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 12 of 16 Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's personal competence, experience, and personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to, the following: 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 Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 13 of 16 those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required bylaw, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. Notwithstanding the foregoing, it is understood by both parties that the prevailing party shall be entitled to recover reasonable defense costs and attorney's fees only to the extent such legal expenses are part of prevailing party's damages as determined by a court of competentjurisdiction. 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 competentjurisdiction 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. Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 14 of 16 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 Assigns. 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. 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 ofFcer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the Planning Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Lynette Dias Urban Planning Partners 350 Frank Ogawa Plaza, 5'h Floor Oakland, CA 94612 Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 15 of 16 Any written notice to City shall be sent to: Jeff Baker Planning Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 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 CONSULTANT Joni Pattillo, City Manager Lynette Dias, Principal Attest: Caroline Soto, City Clerk Approved as to Form: John Bakker, City Attorney Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners Page 16 of 16 EXHIBIT A SCOPE OF SERVICES Provision of Planning, Public Works, and other development services including, but not limited to, environmental, architectural, landscape architectural and/or biological consulting services to the City of Dublin regarding: o Processing of development entitlements Said services shall be performed at the direction of the Community Development Director on an as-needed basis. Adjustment of Rates Hourly rates shall be those set forth in Exhibit B (Compensation Schedule) Consulting Services Agreement between October 18, 2011 City of Dublin and Urban Planning Partners - Exhibit A Page 1 of 1 EXHIBIT B COMPENSATION SCHEDULE City hereby agrees to pay Consultant a sum not to exceed $100.00 per hour. Consultant shall not bill for any reimbursable items. Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 1 of 14 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND ENVIRONMENTAL FORESIGHT, INC. ON-CALL CONTRACT FOR LANDSCAPE PLAN REVIEW SERVICES THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Environmental Foresight, Inc ("Consultant") as of October 18, 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 Services 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 one year thereafter, except that the Agreement shall be automatically extended from year to year unless the the Agreement is otherwise terminated, 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 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 1.2 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in Exhibit B, 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. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 2 of 14 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: ¦ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; ¦ The beginning and ending dates of the billing period; ¦ A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; ¦ At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; ¦ The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours; ¦ The Consultant's signature. 2.2 Monthly Payment. City shall make 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 Deleted. 2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 3 of 14 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the Payment Schedule, attached as Exhibit B. 2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate and not paid separately. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 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. 2.9 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 may furnish physical facilities such as desks, telephone service, 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. 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. 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 Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 4 of 14 not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on aself-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 aself-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 suspended, voided, canceled by either party, except after thirty (30) days' prior written notice has been given to the City. Consultant shall provide written notice to City at least 30 days before any reduction in coverage or in limits takes effect. 4.2 Commercial General and Automobile Liability 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 coverage. 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 1 ("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: a. City and its officers, employees, agents, and volunteers shall be covered as insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 5 of 14 general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance orself-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 suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30) days' prior written notice has been given to the City. 4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. 4.3.1 Any deductible orself-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, except after thirty (30) days' prior written notice has been given to the City. Consultant shall provide written notice to City at least 30 days before any reduction in coverage or in limits takes effect. 4.3.3 The policy must contain a cross liability or severability of interest clause. 4.3.4 The following provisions shall apply if the professional liability coverages are written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 6 of 14 b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptability 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 coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with certificates of insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.4.5 Deductibles and Self-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 Administrator, Consultant may increase such deductibles orself-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 7 of 14 deductible orself-insured retention levels with a requirement that Consultant procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: ¦ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; ¦ Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or ¦ Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have 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 consideration. Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 8 of 14 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 Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. 6.2 Waiver of Employee Benefits. 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. 6.3 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 this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental 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, Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 9 of 14 and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In 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 no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 10 of 14 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to, the following: 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 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 Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 11 of 14 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 bylaw, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competentjurisdiction 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 Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 12 of 14 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. 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 ofFcer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the Planning Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Scott Feuer Environmental Foresight, Inc. 1855 Olympic Boulevard, Suite 105 Walnut Creek, CA 94596 Any written notice to City shall be sent to: Jeff Baker Planning Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 13 of 14 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 CONSULTANT Joni Pattillo, City Manager Scott Feuer, Senior Principal Attest: Caroline Soto, City Clerk Approved as to Form: John Bakker, City Attorney Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc. Page 14 of 14 EXHIBIT A SCOPE OF SERVICES Provision of Planning, Public Works, and other development services including, but not limited to, environmental, architectural, landscape architectural and/or biological consulting services to the City of Dublin regarding: o Processing of development entitlements Said services shall be performed at the direction of the Community Development Director on an as-needed basis. Adjustment of Rates Hourly rates shall be those set forth in Exhibit B (Payment Schedule) Consulting Services Agreement between October 18, 2011 City of Dublin and Environmental Foresight, Inc - Exhibit A Page 1 of 1 EXHIBIT B COMPENSATION SCHEDULE City hereby agrees to pay Consultant a sum not to exceed $100.00 per hour. Consultant shall not bill for any reimbursable items. Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 1 of 14 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND KLUBER AND ASSOCIATES INC. ON-CALL CONTRACT FOR LANDSCAPE PLAN REVIEW SERVICES THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Kluber and Associates, Inc. ("Consultant") as of October 18, 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 Services 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 one year thereafter, except that the Agreement shall be automatically extended from year to year unless the the Agreement is otherwise terminated, 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 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 1.2 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in Exhibit B, 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. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 2 of 14 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: ¦ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; ¦ The beginning and ending dates of the billing period; ¦ A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; ¦ At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; ¦ The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours; ¦ The Consultant's signature. 2.2 Monthly Payment. City shall make 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 Deleted. 2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 3 of 14 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the Compensation Schedule, attached as Exhibit B. 2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate and not paid separately. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 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. 2.9 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 may furnish physical facilities such as desks, telephone service, 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. 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. 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 Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 4 of 14 not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on aself-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 aself-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 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. 4.2 Commercial General and Automobile Liability 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 coverage. 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 1 ("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: a. City and its officers, employees, agents, and volunteers shall be covered as 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 Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 5 of 14 Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance orself-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 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 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions. 4.3.1 Any deductible orself-insured retention shall not exceed $150,000 per claim. 4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 4.3.3 The policy must contain a cross liability or severability of interest clause. 4.3.4 The following provisions shall apply if the professional liability coverages are written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 6 of 14 b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptability 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 coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with certificates of insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.4.5 Deductibles and Self-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 Administrator, Consultant may increase such deductibles orself-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 7 of 14 deductible orself-insured retention levels with a requirement that Consultant procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: ¦ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; ¦ Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or ¦ Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have 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 consideration. Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 8 of 14 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 Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. 6.2 Waiver of Employee Benefits. 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. 6.3 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 this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental 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, Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 9 of 14 and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In 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 no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page l0 of 14 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to, the following: 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 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 Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 11 of 14 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 bylaw, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competentjurisdiction 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 Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 12 of 14 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. 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 ofFcer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the Planning Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Frank Kluber Kluber and Associates, Inc. 819 Marina Vista Martinez, CA 94553 Any written notice to City shall be sent to: Jeff Baker Planning Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 13 of 14 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 CONSULTANT Joni Pattillo, City Manager Frank Kluber, Principal Attest: Caroline Soto, City Clerk Approved as to Form: John Bakker, City Attorney Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. Page 14 of 14 EXHIBIT A SCOPE OF SERVICES Provision of Planning, Public Works, and other development services including, but not limited to, environmental, architectural, landscape architectural and/or biological consulting services to the City of Dublin regarding: o Processing of development entitlements Said services shall be performed at the direction of the Community Development Director on an as-needed basis. Adjustment of Rates Hourly rates shall be those set forth in Exhibit B (Payment Schedule) Consulting Services Agreement between October 18, 2011 City of Dublin and Kluber and Associates, Inc. - ExhibitA Page 1 of 1 EXHIBIT B COMPENSATION SCHEDULE City hereby agrees to pay Consultant a sum not to exceed $100.00 per hour. Consultant shall not bill for any reimbursable items.