HomeMy WebLinkAboutItem 4.06 Housing Services Agreementor
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DATE:
TO:
STAFF REPORT
CITY COUNCIL
June 17, 2014
Honorable Mayor and City Councilmembers
CITY CLERK
File #600 -30
FROM: Christopher L. Foss, City Manager �?14 "
SUBJECT: Consulting Services Agreement with Pacific Municipal Consultants (dba PMC)
Prepared by Amy Cunningham, Assistant to the City Manager
EXECUTIVE SUMMARY:
Staff recommends the City Council adopt a resolution authorizing the City Manager to execute a
Consulting Services Agreement with Pacific Municipal Consultants (dba PMC) to assist with
housing services.
FINANCIAL IMPACT:
Funding is available in the adopted Fiscal Year 2014 -2015 budget.
RECOMMENDATION:
Staff recommends that the City Council adopt a Resolution Approving a Consulting Services
Agreement with Pacific Municipal Consultants for Housing Services.
Submitted By
Community Development Director
DESCRIPTION:
'Reviewed By
Assistant City Manager
Staff is recommending the City Council approve a Consulting Services Agreement with PMC for
housing services and authorize the City Manager to execute the agreement with PMC for the
period July 1, 2014 through June 30, 2015. The contract shall not exceed $50,000. Services
under this contract would include: a continuation of the affordable housing guidelines update
that PMC is currently working on; support in the area of housing program management and
administration; and evaluation of solutions for record - keeping and reporting systems.
NOTICING REQUIREMENTS /PUBLIC OUTREACH: None.
ATTACHMENTS: 1. Resolution Approving a Consulting Services Agreement with Pacific
Municipal Consultants (DBA PMC) for Housing Services
2. PMC Proposal - May 30, 2014
3. Standard Consulting Services Agreement
Page 1 of 1 ITEM NO. 4.6
RESOLUTION NO. XX - 14
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * **
APPROVING A CONSULTING SERVICES AGREEMENT WITH PACIFIC MUNICIPAL
CONSULTANTS (DBA PMC) FOR HOUSING SERVICES
WHEREAS, there is a need for support and assistance to the City's affordable housing
program administration; and
WHEREAS, PMC is in the process of completing an update to the affordable housing
program guidelines and procedures; and
WHEREAS, there is a need for services from PMC to continue with the affordable housing
guidelines update including updating supporting program materials; providing support in the area of
housing program management and administration; and evaluating solutions for record - keeping and
reporting systems; and
WHEREAS, adequate funding is available in the Fiscal Year 2014 -2015 adopted operating
budget;
WHEREAS, the City Council desires to enter into a new agreement with PMC to continue the
update and complete the work as outlined above; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin
authorizes the City Manager to execute a Consulting Services Agreement with PMC to obtain
the services described in the Scope of Work dated May 30, 2014 (Exhibit A).
PASSED, APPROVED AND ADOPTED this 17th day of June 2014, by the following
vote:
AYES-
NOES-
ABSENT-
ABSTAIN-
ATTEST-
City Clerk
Mayor
ATTACHMENT 1
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May 30, 2014
Amy Cunningham, Assistant to the City Manager
CITY OF DUBLIN — COMMUNITY DEVELOPMENT DEPARTMENT
100 Civic Plaza
Dublin, CA 94568
RE: PROPOSAL FOR HOUSING SERVICES
Dear Ms. Cunningham:
PMC is pleased to provide you with this proposal to provide on -site assistance in the City of Dublin's
Housing and Human Services Division, update the City's First Time Homebuyer Loan Program and
Inclusionary Program materials, and evaluate and initiate potential changes to the City's affordable
housing record - keeping and reporting systems.
The City of Dublin has a robust housing program with over 1,000 below market -rate units and an active
loan program. Since June 2013, PMC has worked as an extension of City staff to administer and improve
program components. PMC will utilize our comprehensive understanding of Dublin housing programs, as
well as our experience with assisting other California jurisdictions, to continue to support program
administration and improve systems and materials.
Kim Obstfeld, senior housing planner, will continue to provide regular on -site assistance and will serve
as the lead and day -to -day contact. Jennifer Gastelum, project manager, will provide project direction
and oversight. Additional PMC staff resources will include graphic designers, technical editors, and
administrative staff.
We greatly appreciate the opportunity to continue to work with you and look forward to beginning
work on this exciting project. Please contact Jennifer Gastelum at (916) 231 -2268 or Kim Obstfeld at
(5 10) 410 -9960 if you have any questions or need additional information.
Sincerely,
/h`/ili�pO.Carter
President
POC:ko:ac:ang
J' n er Gastelum
Project Manager
P: \California, State of\Dublin, City of\P 13 -0423 Housing Program Staffing Services
2729 Prospect Park Drive, Suite 220 • Rancho Cordova, CA 95670 • P: (916) 361 -8384 • F: (916) 361 -1574
Amy Cunningham, Assistant to the City Manager
May 30, 2014
Page 2
FIRM PROFILE
Pacific Municipal Consultants (dba PMC) is a California S- Corporation providing planning, environmental,
and municipal services to public agencies, special districts, and public- oriented organizations. PMC serves
the needs of cities, counties, and other governmental agencies by providing a range of municipal support
and management services through our offices in Chico, Long Beach, Monterey, Oakland, Rancho
Cordova, San Diego, and San Luis Obispo.
PMC has successfully completed over 2,100 projects providing services to more than 800 public
agencies since our establishment in 1995. PMC today consists of over 140 staff members including
environmental planners, urban designers, city planners, sustainability and climate change planners,
community engagement and facilitation specialists, and other technical specialists.
HOUSING AND COMMUNITY DEVELOPMENT TEAM
PMC offers the experience and skill of its Housing and Community Development team to administer
housing and community development programs and to develop and implement grant- funded programs.
The PMC Housing and Community Development team has worked with more than 70 agencies to
develop and implement effective housing and community development projects, programs, and plans.
PMC administers every aspect of federal, state, and local grant programs, including design, delivery, and
compliance. We have worked with state (HCD) and federal (HUD) program staff on a broad range of
programs and projects as well as numerous local committees on community- initiated programs. With a
passion for the provision of services to target populations, PMC serves as a partner in delivering grant -
funded services to the community.
Our team has extensive, directly relevant experience including the following:
E Housing policy development, program design, implementation, and administration
E Affordable housing portfolio management
E Affordable housing trust fund management
E Preparation of grant applications for Community Development Block Grant (CDBG), HOME,
state bond funds, and a broad range of community development funding
E Administration of grant programs for cities and counties throughout the state
E Special studies involving inclusionary housing policies, including in -lieu fees
E Housing condition surveys
E Labor compliance — federal labor standards and Davis -Bacon wage and hours compliance
E Program and project compliance monitoring — CDBG, HOME, LIHTC, NSP
E Relocation services
Amy Cunningham, Assistant to the City Manager
May 30, 2014
Page 3
PROJECT OVERVIEW AND UNDERSTANDING
The City of Dublin has a robust and active housing program that includes ownership, rental, and
restricted secondary below market -rate (BMR) units developed as a requirement of the City's
inclusionary housing ordinance, as well as a First Time Homebuyer Loan Program. The City has
benefitted from over 10 years of administering the inclusionary program and eight years of managing the
loan program, during which the City has developed detailed guidelines, procedures, and supporting
materials for both programs.
PMC worked closely with staff to update policies and guidelines for both programs in the first half of
2014. The intent of the update was primarily to improve the readability and usability of guideline
documents. PMC will continue this work by updating related program materials including applications,
checklists, forms, and brochures. Materials will be consistently formatted and posted on the City's
website for easy access.
The City is seeking continued on -site assistance with the management and administration of housing
programs. This may include processing unit and loan applications, conducting consultations with below
market -rate unit or restricted secondary unit buyers, coordinating with planners and developers to
prepare affordable housing agreements, and resolving questions and issues that arise during the course
of program operation.
In addition, the City is examining options to improve file storage, record - keeping, and reporting for
housing programs. PMC will work with staff to identify an appropriate database management solution,
such as HomeKeeper, and prepare and execute a plan to implement the system. This may include
assisting in procuring product pricing and securing an agreeable contract, determining staffing needs to
scan and upload existing records to the new database, training staff, and administering the system.
SCOPE OF SERVICES
TASK I HOUSING PROGRAM MATERIALS
PMC will prepare new and updated program materials that are consistent with the City's recently
updated Inclusionary Zoning Regulations Ordinance guidelines and First Time Home Buyer Loan
Program guidelines. Existing materials, including applications, forms, checklists, and brochures, will be
revised to ensure accuracy, consistency, and continued relevance and appropriateness. PMC will prepare
additional forms and brochures as needed to improve public access to program information. Wherever
appropriate, information will be provided in tables, diagrams, flow charts, and other clear graphics. PMC
will work with staff to improve the availability of documents and information on the City's website and
provide updated web content as needed.
Amy Cunningham, Assistant to the City Manager
May 30, 2014
Page 4
TASK 2 HOUSING PROGRAM MANAGEMENT AND ADMINISTRATION
PMC will continue to work on -site with City staff for eight hours per week to:
E Qualify applicants for BMR units and first time homebuyer loans, prepare analysis and
paperwork relating to BMR unit resales and refinances, and consult with buyers of BMR units
and units with income - restricted second units.
E Assist with annual rental and secondary unit monitoring.
E Work with Planning Division staff, developers, and the City Attorney to prepare Affordable
Housing Agreements and related staff reports, as needed.
E Identify and implement strategies to improve Housing Division organization and processing
procedures.
TASK 3 RECORD - KEEPING AND REPORTING SYSTEMS
PMC will identify available database and record - keeping solutions that may be appropriate for the
storage and management of housing program files. PMC will coordinate with system providers and staff
to compile information, clarify needs and options, and, if appropriate, recommend a solution to the City.
If the City opts to proceed with implementation of a database system, PMC will procure product pricing
and work with City staff and the system provider to secure an agreeable contract. PMC will prepare and
execute a plan to implement the system, which will include determining information fields and selecting
system options, assessing and addressing staffing needs to scan and upload existing records to the new
database, training City staff and preparing procedural materials, and administering the system.
COST ESTIMATE
The cost to complete the above scope of work is not to exceed $50,000 to be billed on a time and
materials basis. This estimate is based on one day per week of on -site service to be provided by Kim
Obstfeld from July 2014 through June 2015.
Hourly rates include the costs of routine travel required to complete the work during normal business
hours. PMC bills in quarter -hour increments. Invoicing is monthly.
PMC will provide services to the City of Dublin at the following hourly rates.
Jennifer Gastelum, Project Manager $145
Kim Obstfeld, Senior Housing Planner $100
Technical Editor /Graphic Designer $85
Formatting and Administration $65
Amy Cunningham, Assistant to the City Manager
May 30, 2014
Page 5
KEY STAFF
JENNIFER GASTELUM, PROJECT MANAGER
Ms. Gastelum has more than 13 years of experience on projects throughout California, Nevada, and
Washington. She is experienced in managing the preparation of Housing Elements, consolidated plans,
and other housing policy documents. Her most recent housing policy experience includes Housing
Element updates for over two dozen California cities during the 4,h round update cycle. She recently
assisted the communities of Alameda and Oxnard with bringing their Housing Elements into compliance.
She is currently managing 5th round updates for the cities of Ontario, Auburn, Temecula, and Roseville,
and for Imperial County. She has developed affordable housing best practices strategies, which included
inclusionary housing recommendations and identifying zoning and infill incentives.
KIM OBSTFELD, HOUSING PLANNER
Ms. Obstfeld's experience and expertise includes Housing Element project management, housing
condition surveys, on -call housing - related services including inclusionary program preparation,
stakeholder outreach and public facilitation, specific and master plan preparation, and zoning ordinance
update task management. She works closely with clients and team members throughout all project
phases, including research, analysis, technical writing, editing, graphics, and presentations. Ms. Obstfeld
has a thorough knowledge of state Housing Element law and has completed Housing Element updates
for Imperial County and the cities of West Sacramento, Coachella, Twentynine Palms, Lincoln, and
Calimesa. Currently, Ms. Obstfeld is working on 5th cycle Housing Element updates for the cities of
Emeryville, Santa Rosa, Cloverdale, and Clayton, and the Town of Yountville. In addition, she recently
served as task leader for the Downtown Soledad Specific Plan and Form -Based Code and the Merced
Bellevue Corridor Community Plan and worked on zoning code updates for the cities of Pacific Grove,
Petaluma, Kingsburg, Mesa, and Flagstaff. Ms. Obstfeld has provided regular on -site housing program
administration services to the City of Dublin since June 2013.
ADDITIONAL STAFF RESOURCES
The above list represents the staff which PMC anticipates will be required; however, it is possible that
the need for additional staff may arise. Therefore, PMC may assign additional staff types as necessary to
complete the services required under this agreement. Compensation rates for additional staff types will
be determined by PMC and will be consistent with the rates listed herein.
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND PMC
THIS AGREEMENT for consulting services is made by and between the City of Dublin ( "City ") and
PMC ( "Consultant ") as of July 1, 2014.
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant
shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and
place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms
of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the date first noted above
and shall end on June 30, 2015, the period of completion identified in Exhibit A, and
Consultant shall complete the work described in Exhibit A prior to that date, unless the
term of the Agreement is otherwise terminated or extended, as provided for in Section 8.
The time provided to Consultant to complete the services required by this Agreement shall
not affect the City's right to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Consultant is engaged in the geographical area in
which Consultant practices its profession. Consultant shall prepare all work products
required by this Agreement in a professional manner and shall conform to the standards of
quality normally observed by a person practicing in Consultant's profession.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons,
Consultant shall, immediately upon receiving notice from City of such desire of City,
reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in Section 1.1 above and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $50,000
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 July 1, 2014
City of Dublin and PMC Page 1 of 13
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, and the balance available under the Agreement;
■ 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;
■ Each invoice shall show the total number of hours of work performed by
Consultant and each employee of Consultant performing services hereunder;
■ The Consultant's signature.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for
services performed in accordance with this Agreement, 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 Final Payment. City shall pay the last 10% of the total sum due pursuant to this
Agreement within sixty (60) days after completion of the services and submittal to City of a
final invoice, if all services required have been satisfactorily performed.
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.
2.5 Hourly Fees. Fees for work performed under this Agreement by Consultant on an hourly
basis shall not exceed the amounts shown on the fee schedule included as Exhibit A.
Consulting Services Agreement between July 1, 2014
City of Dublin and PMC Page 2 of 13
2.6 Reimbursable Expenses. Reimbursable expenses are included in the total amount of
compensation provided under this Agreement that shall not be exceeded.
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 completed in accordance
with this Agreement 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 shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be
reasonably necessary for Consultant's use while consulting with City employees and reviewing records and
the information in possession of the City. The location, quantity, and time of furnishing those facilities shall
be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve
incurring any direct expense, including but not limited to computer, long- distance telephone or other
communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement,
Consultant, at its own cost and expense, shall procure "occurrence coverage" insurance against claims for
injuries to persons or damages to property that may arise from or in connection with the performance of the
work hereunder by the Consultant and its agents, representatives, employees, and subcontractors, or shall
require that any agents, representatives or subcontractors procure such insurance. 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 proof of 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'
Consulting Services Agreement between July 1, 2014
City of Dublin and PMC Page 3 of 13
Compensation Insurance and Employer's Liability Insurance shall be provided with limits of
not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative,
Consultant may rely on a self- insurance program to meet those requirements, but only if
the program of self- insurance complies fully with the provisions of the California Labor
Code. Determination of whether a self- insurance program meets the standards of the
Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if
insurance is provided, or the Consultant, if a program of self- insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and
designated volunteers for loss arising from work performed under this Agreement.
The insurance certificate shall state that coverage shall not be canceled except after thirty
(30) days' prior written notice has been given to the City. Consultant shall notify City within
14 days of notification from Consultant's insurer if such coverage is suspended, voided or
reduced in coverage or in limits.
4.2 Commercial General and Automobile Liabilitv Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00)
per occurrence, combined single limit coverage for risks associated with the work
contemplated by this Agreement. If a Commercial General Liability Insurance or an
Automobile Liability form or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to the work to be
performed under this Agreement or the general aggregate limit shall be at least
twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury,
including death resulting therefrom, and damage to property resulting from
activities contemplated under this Agreement, including the use of owned (if any)
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 8 and 9 ( "any auto "). No
endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and designated volunteers shall
be covered as additional insureds with respect to each of the following:
liability arising out of activities performed by or on behalf of Consultant,
Consulting Services Agreement between July 1, 2014
City of Dublin and PMC Page 4 of 13
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
designated volunteers.
The insurance shall cover on an occurrence or an accident basis, and not
on a claims -made basis.
C. An endorsement must state that coverage is primary insurance with
respect to the City and its officers, officials, employees and designated
volunteers, and that no insurance or self- insurance maintained by the City
shall be called upon to contribute to a loss under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the
policy shall not affect coverage provided to CITY and its officers,
employees, agents, and designated volunteers.
e. The insurance certificate shall state that coverage shall not be canceled
except after thirty (30) days' prior written notice has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's
insurer if such coverage is suspended, voided or reduced in coverage or
in limits.
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for
professionals performing work pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($1,000,000) covering the professionals' errors and omissions.
4.3.1 Any deductible or self- insured retention shall not exceed $150,000 per claim.
4.3.2 The insurance certificate shall state that coverage shall not be canceled except
after thirty (30) days' prior written notice has been given to the City. Consultant
shall notify City within 14 days of notification from Consultant's insurer if such
coverage is suspended, voided or reduced in coverage or in limits.
4.3.3 The following provisions shall apply if the professional liability coverages are
written on a claims -made form:
The retroactive date of the policy must be shown and must be before the
date of the Agreement.
Consulting Services Agreement between July 1, 2014
City of Dublin and PMC Page 5 of 13
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 Reauirements.
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 ANIL
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
or self- insured retentions with respect to City, its officers, employees, agents, and
designated volunteers.
Consulting Services Agreement between July 1, 2014
City of Dublin and PMC Page 6 of 13
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 fourteen 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 mutually acceptable, and hold harmless the City and its officials, officers,
employees, agents, and designated 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 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 designated 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.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
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payment of any penalties and interest on such contributions, which would otherwise be the responsibility of
City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall
be an independent contractor and shall not be an employee of City. City shall have the
right to control Consultant only insofar as the results of Consultant's services rendered
pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3;
however, otherwise City shall not have the right to control the means by which Consultant
accomplishes services rendered pursuant to this Agreement. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant
and any of its employees, agents, and subcontractors providing services under this
Agreement shall not qualify for or become entitled to, and hereby agree to waive any and
all claims to, any compensation, benefit, or any incident of employment by City, including
but not limited to eligibility to enroll in the California Public Employees Retirement System
(PERS) as an employee of City and entitlement to any contribution to be paid by City for
employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant No 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. If a conflict between such
laws arises, thereby causing Consultant to not comply with the terms of this section,
Consultant will immediately advise City of the situation in writing at which time both parties
shall work together to seek resolution and City will not interpret such conflict as a breach of
this Agreement by Consultant.
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 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 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
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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.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
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8.4 Assignment and 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 include, 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, therefore Consultant shall not be held
liable for any modification or re -use of the City -owned documents and materials for
purposes other than those contemplated by this Agreement. City and Consultant agree
that, until final approval by City, all data, plans, specifications, reports and other
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documents are confidential and will not be released to third parties without prior written
consent of both parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this Agreement for a minimum of three (3) years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of
the City. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the
Agreement shall be subject to the examination and audit of the State Auditor, at the
request of City or as part of any audit of the City, for a period of three (3) years after final
payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 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 competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and 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.
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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 officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be
entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any
sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of Government Code § 1090 and, if
applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Luke Sims ( "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:
Philip 0. Carter, President
PMC
2729 Prospect Park Drive, Ste. 220
Rancho Cordova, CA 95670
Any written notice to City shall be sent to:
Luke Sims, Community Development Director
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.11 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between
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City and Consultant and supersedes all prior negotiations, representations, or agreements,
either written or oral.
CITY OF DUBLIN
Christopher L. Foss, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
PMC
Philip 0. Carter, President
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EXHIBIT A
SCOPE OF SERVICES
(See attached Scope of Services dated May 30, 2014)
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