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HomeMy WebLinkAboutItem 4.06 Dougherty Rd Imprvmnts~~~~ Off' nU~~~ /ii ~ 111 L~~ - ~ ~~~ DATE: TO: FROM: STAFF REPORT CITY COUNCIL CITY CLERK File #600-35 February 7, 2012 Honorable Mayor and City Councilmembers Joni Pattillo, City Manager ° ` .~~i SUBJECT: Approval of Agreement with Kimley-Horn & Associates, Inc. to Provide Consulting Services for the Dougherty Road Improvements -Sierra Lane to North City Limit Prepared by Ferd Del Rosario, Senior Civil Engineer EXECUTIVE SUMMARY: The City's 2010-2015 Capital Improvement Program includes preliminary engineering work for the proposed improvements on Dougherty Road from Sierra lane to North City Limit (CIP NO. 960025). The project includes widening of travel lanes from four to six lanes, construction of bicycle lanes and a raised median, installation/modification of several traffic signals, and landscaping. It is requested that the City Council adopt a resolution to approve an agreement with Kimley-Horn and Associates, Inc. to provide preliminary engineering services for the Dougherty Road Improvements Project. FINANCIAL IMPACT: The Fiscal Year 2011-2012 Update to the 2010-2015 Capital Improvement Program (CIP) estimated preliminary engineering work for the Dougherty Road Improvements Project (CIP No. 960025), to have a total cost of $1,132,049. The project is expected to incur expenses over multiple years. The portion of the work associated with this agreement was estimated to cost $957,813. The work proposed with Kimley-Horn & Associates, Inc. has anot-to-exceed amount of $753,000.00 and is within the limits of the project budget for contract services. RECOMMENDATION: Staff is recommending that the City Council adopt the attached Resolution Approving the Consulting Services Agreement with Kimley-Horn & Associates, Inc. to provide consulting services for the Dougherty Road Improvements Project (CIP No. 960025). .. ~`~~, . . -~ , .~ ~ ~. ~~~ ~ ,~~,., ~,a ~~_ ~ °~....a .. , Submit ed By Submitted By Reviewed y Public Works Director Administrative Services Assistant City Manager Director DESCRIPTION: The City's 2010-2015 Five-Year Capital Improvement Program (CIP) includes a project that will complete preliminary engineering work for the improvement of Dougherty Road from Sierra Page 1 of 2 ITEM NO. 4.6 Lane to North City Limit under CIP No. 960025. The proposed improvements include widening of travel lanes from four to six lanes, construction of bicycle lanes and a raised median, installation/modification of several traffic signals and street lights, and landscaping. The length of the project is approximately 1.9 miles and is part of the City's plan to widen Dougherty Road from four to six lanes, consistent with the existing 6-lane roadway north of the City boundary in the City of San Ramon. The widening of Dougherty Road is proposed on the east side of the existing roadway, primarily within the roadway easement acquired by the City from Camp Parks north of Scarlett Drive. South of Scarlett Drive, acquisition of right-of-way on the east side is anticipated (one parcel), as well as relocation of utilities including a PG&E power pole serving overhead power lines and a Zone 7 water utility facility just south of Scarlett Drive. Accompanying improvements include modification of two existing traffic signals at Dougherty Road/Willow Creek Drive and Dougherty Road/Amador Valley Boulevard, installation of a new traffic signal at the intersection of Dougherty Road and South Mariposa Drive, street lighting upgrade, roadway landscaping, trail enhancement and tie-in at the Iron Horse Trail, bus shelters, coordination with Suncal/Argent on the relocation of the Camp Parks entry gate to Dougherty Road at South Mariposa Drive and storm water mitigation features. Staff invited engineering firms to submit proposals for the preliminary engineering work and eleven proposals were received. The proposals were reviewed by the panel and four firms were invited for in-person interviews. The selection panel has recommended the firm of Kimley-Horn & Associates, Inc. to lead a team of consultants to perform civil and traffic engineering, land surveying, right of way services, environmental clearance, utility relocation services and landscape design. Kimley-Horn & Associates, Inc. has successfully completed numerous roadway design projects for cities and towns throughout Northern California and currently has an on-call contract with the City. The preliminary design phase also includes two public workshops early in the preliminary design process to inform residents, businesses and other stakeholders about the project and discuss/identify key issues. Kimley-Horn & Associates and their sub-consultants will prepare for and conduct the workshops. Kimley-Horn will also coordinate the proposed project with Camp Parks and proposed developments (Emerald Vista and Suncal) adjacent to Dougherty Road. The preliminary engineering work proposed with Kimley-Horn & Associates, Inc. has anot-to- exceed amount of $753,000.00 and is within the limits of the project budget for contract services. Staff recommends that the City Council adopt the resolution approving the Consulting Services Agreement with Kimley-Horn & Associates, Inc. and authorizing the City Manager to sign said agreement. NOTICING REQUIREMENTS/PUBLIC OUTREACH: Copy of Staff Report sent to: Kimley-Horn & Associates, Inc. ATTACHMENTS: 1. Location Map 2. Resolution Approving Agreement with Kimley-Horn & Associates, Inc. to Provide Consulting Services for the Dougherty Road Improvements -Sierra Lane to North City Limit -CIP No. 960025 Page 2 of 2 p r v P ~ Q <7~ C ~drlG~"i P a ~ti F ~ ~ t~ •AL~ ~,, °er~f~N Cenf~r Psrk G.ardar~ L- E ~~ y -~ 1 7 x Ntt~ + 4 Pail T Q 1(pih Park 6 .r~ P G ~ 3y°'I ~l~ ~ y. ~ aS P~`R~ nUfl~lll r.•,.1 0 x c ~~~ Game t'rr:<s 4 fCOftl Bftdf7rSk.9 Vsll~e ;o n 5 ~ nf+i H R:Li : Fl7 C eFl-,c•n Gy A Glra~ Qr 0 6 A n ~ e. ~?ot;Jh.=.rtY {RkEf2rrt(atAry ^ SC1`pC! Fianbn,2a Crpssine.~- ~:~ ~ ~''`'~ Anlzu ~"~ r UcrtsE.ru Bird ~~ Bird JUthur H E3rreed Ja Fwy~'~' ~l C ~'~In.74 " ~nanGt` z ~`~ 0 K d gUITI!'r,' Dr C'a~nlTrnn `~E Project Limits V~3~95y.,?rr ~ ~"irRi4°1 v'}'~•l2i71 L~4CAT~O~J MAP DQUGHERTY RC-AD IMPROVEMENTS -Sierra Lane to North City Limit RESOLUTION NO. - 12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AGREEMENT WITH KIMLEY-HORN & ASSOCIATES, INC. TO PROVIDE CONSULTING SERVICES FOR THE DOUGHERTY ROAD IMPROVEMENTS -SIERRA LANE TO NORTH CITY LIMIT -CIP NO. 960025 WHEREAS, the City's 2010-2015 Five-Year Capital Improvement Program (CIP) includes a project that will complete preliminary engineering work for the improvement of Dougherty Road from Sierra Lane to North City Limit under CIP No. 960025; and WHEREAS, the construction of this project will accomplish the City's plan to widen Dougherty Road from four to six lanes ,consistent with the existing 6-lane roadway north of the City boundary in San Ramon; and WHEREAS, it is necessary to hire an engineering firm to prepare preliminary engineering work for the capital improvement project; and WHEREAS, the City desires to hire the firm of Kimley-Horn & Associates, Inc. to provide engineering consulting services; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby approves the agreement with Kimley-Horn & Associates, Inc. to provide consulting services for the Dougherty Road Improvements Project in an amount not to exceed $753, 000.00. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the agreement, attached hereto as Exhibit "A." PASSED, APPROVED AND ADOPTED this 7th day of February, 2012, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND KIMLEY-HORN AND ASSOCIATES, INC. THIS AGREEMENT for consulting services is made by and between the City of Dublin ~"City") and Kimley-Horn and Associates, Inc, ("Consultant"} as of February 7, 2012, Section 1, SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide fo 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 Phis Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreemen# shall begin on the date first noted above and shall end on June 2013, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided far 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 mannee to 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 Phis Agreement, In fhe event that City, in ifs sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consuitant shall, immediately upon receiving notice from City of such desire of Cily, reassign such person or persons. 9.4 Time. Consul#ant shall devote such time to the performance of services pursuant fo 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 fo pay Consuitant a sum not to exceed SEVEN HUNDRED FIFTY-THREE THOUSAND DOLLARS AND NO CENTS ($753,000.00), notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, at#ached as Exhibit B, regarding the amount of compensation, fhe 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 far services rendered pursuant to this Agreement. Consuitant shall submit all, invoices to City in the manner Consulting Services Agreement between 5~` February 7, 2012 City of Dublin and Kimley-Hom and Associates, Inc, Page 1 of 14 specified herein. Except as specifically authorized by City, Consultant shall not bill Cify for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended #o include the costs of contributions to any pensions andlor annuities to which Consultant and its employees, agents, and subcontractors maybe eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2,1 Invoices. Consultant shah submit invoices, not mare often than once a month during the term of this Agreement, based on the cost far services performed and reimbursable casts incurred prior to the invoice date. Invoices shall contain the following information; ^ Serial identifications ofprogress bills; i,e., Progress gill 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 Consultan# and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A; The Consultant's signature. 2.2 Months Pa ment. City shall make monthly paymen#s, 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 Einal Payment. Gity shall pay the last 10°/0 of the total sum due pursuant to this Agreement within sixty (60) days after completion of the services and submittal fo City of a final invoice, if all services required have been satisfactorily performed. 2.4 Total Payment. Cify shall pay for the services to be rendered by Consultant pursuant to fhis 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. Consulting Services Agreement between 1=ebruary T, 2012 City of Dublin and Kimley-Horn and Associates, Inc. Page 2 of 14 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 far work performed by Consultant on an hourly basis shall not exceed the amounts shown on the following fee schedule: 2.6 Reimbursable Ex enses. Reimbursable expenses are specified in Exhibit B, and shall not exceed $43,22h 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and arty similar federal or state taxes. 2.8 Pa ment u on 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 casts 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 antl expense, provide all facilities and equipment that may 6e necessary to perform the services required by this Agreement. Cily shall make available to Consultant only the facilities and equipment listed in this sec#ion, antl 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 empbyees 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 fa furnish any facility that may involve incurring any direct expense, including but not limited to computer, Fong-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE RE UIREMENTS. Before beginning any work under this Agreement, Consultant, of ifs 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 ail respects to the City, Consultant shall maintain the insurance policies required by Phis section throughout the term of this Agreement, The east 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 Consulting Services Agreement between February 7, 2012 City of Dublin and Kimsey-Horn and Associates, Inc. Page 3 of 14 subcontractors} 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 not less than ONE MILLION DOLLARS ($1,000,000.007 per accident. In the alternative, Consultant may rely on aself-insurance program to meet those requirements, but only if the program ofself-insurance complies fully with the provisions of the California Labor Code. Determination ofwhether 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 ofself-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 shaii not be canceled except after thirty {30} days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.2 Commercial General and Automobile Liability Insurance. 4.2.9 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 ar an Automobile Liability form or other form with a genera[ aggregate limit is used, either the general aggregate limit shaii 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 #o property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles. 4.2.2 Minimu_m_scape of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 {ed.11188} or Insurance Services Office form number GL 0002 {ed.1173) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad f=orm Comprehensive General Liability, Automobile coverage shall be at leas# as broad as Insurance Services Office Automobile Liability form CA 0001 (ed.12I90) Code 8 and 9 {"any auto"}, Na endorsement shall be attached limiting the coverage. Consulting Services Agreement between 1=ebruary 7, 2012 City of Dublin and I<imley-Horn and Associates, Inc. Page 4 of 14 4.2.3 Additional requirements. Fach of the following shah be included in the insurance coverage or added as an endorsement to the policy; Cily and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b, The insurance shall cover on an occurrence or an 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 voiunteers, and that no insurance orself-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. Any failure of CONSULTANT to comply with reporting provisions of the policy shah not affect coverage provided to CITY and its officers, employees, agents, and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty {30}days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shah 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 Liabilit 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 ONF MILLION DOLLARS ($1,000,000} covering the licensed professionals' errors and omissions. 4.3.1 Any deductible.or self insured retention shall not exceed $150,000 per claim. 4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30} days' prior written notice by certified mail, return receipt requested, has been given to the City. Consulting Services Agreement between February 7, 2012 City of Dublin and Kimley-Horn and Associates, Inc. Page 5 of 14 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 aclaims-made form: 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 ar 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. 4.4.7 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of na 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 fo be signed by a person authorized by that insurer #o bind coverage on its behalf. The City reserves the right to require complete, certified copies of ail required insurance policies, at any time. 4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies ar shall furnish separate certificates and endorsements far 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. Consulting Services Agreement between February 7, 2012 City of Dublin and Kimley-Horn and Associates, Inc. Page 6 of 14 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 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, Cify may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may Dave 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 fo 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; andfor d 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 lasses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, lass of life, or damage to property, ar 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. 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 Consulting Services Agreement between February 7, 202 City of Dublin and I<imley-Horn and Associates, Inc. Page T of 94 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 far damages whether or not such insurance policies shall have been determined to apply, sy execution of #his 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 far the payment of any employee andbr 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 Inde endent 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 far 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 andlor employee contributions for PERS benefits. fi.2 Consultant No A ent. 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 Com liance with A IicalJle Laws. Consultant and any subcontractors shall comply with ail laws applicable to the performance of the work hereunder. 7.3 Other Governmental Re ulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors Consulting Services Agreemen# between February 7, 202 City of Dublin and Kimley-Horn and Associates, lnc. Page 8 of 14 shall comply with ali applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. l.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and ifs 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 subcon#ractors shah, 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 respec#ive 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 Eaual Opportunity. Consultant shalt 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 far 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 shaif comply with all applicable federal, state, and local laws, policies, ruies, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of #his Agreement, including but not limited to the satisfaction of any positive obligations required of Consuitan# 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 notifcation 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 #a 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 Agreemen#. 8.2 Extension. Cily 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 February 7, 2092 City of Dublin and Kimley-Horn and Associates, Inc. Page 9 of 14 Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shad have no obligation fo 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 Assi nment and Subcontractin .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 fior entering into this Agreement was and is the professional reputation and competence of Consuitant. 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. Ail obligations arising prior to the termination ofi this Agreement and all provisions of this Agreemen# 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; 8.8,3 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 cast 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. Consulting Services Agreement between February 7, 2012 City of Dublin and Kimsey-Horn and Associates, Inc. Page 10 of 14 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 farm, 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. If 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, specifcations, 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 ail 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 Gity 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 Consultanf to this Agreement. 9.3 Inspection and Audit,of Records. Any records or documents that Section 9,2 of this Agreement requires Consuitant to maintain shall be made available for inspection, audit, andlor copying at any time during regular business hours, upon oral or written request of the City, Under California Government Code Section 8546,1, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00}, fhe 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 fhe 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 ar 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 Ends or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not sa Consulting Services Agreement befween February 7, 2092 City of Dublin and Kimley-Horn and Associates, Inc. Page 11 of 14 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 Imaiied_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 ofi and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products., Consultant shall prepare and submit alt 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 81 QQQ e~ 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 interesk 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 Ciiy in fhe previous twelve months, Consultant warrants that it did not participate in any manner in the farming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 ef.seg,, 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. Consuitant 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 disqualifed 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 Gary Huisingh, Public Works Director ("Contract Administrator"}. All correspondence shall 6e directed to or through the Contract Administrator or his or her designee. 10.90 Notices. Any written notice to Consultant shall be sent to; -- onsulting Services Agreement between February T, 2012 City of Dublin and Kimley-Horn and Associates, Inc. Page 12 of 14 James P. West, Vice President Kimley-Horn and Associates, lnc. 6130 Stoneridge Mall Road, Suite 370 Pleasanton, CA 94588 10.11 Any written notice to City shall be sent ta. Gary Huisingh, Director City of Dublin Public Works 900 Civic Plaza Dublin, CA 94568 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shat! be stampedisealed and signed by the licensed professional responsible for the repor#Idesign preparation. The stamplseal shall be in a block entitled "Seal and Signature of Registered Professional with reportldesign responsibility," as in the following example. _~...~._ 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 Gity and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral, Consulting Services Agreement between February 7, 2012 City of Dublin and Kimley-Horn and Associates, lnc. Page 93 of 14 CITY OF DUBLIN Joni L. Pattillo, City Manager Attes#: Caroline Soto, City Clerk Approved as to Form: Jahn Bakker, City Aktorney G:1C1P10ougharty Rd [mpravements -Sierra Into City L[mitslConsultanildra8 agreement 011712.doc KIMLBY-HORN ASSOCIATES, INC. James . West P.E., Vice President (~f7~~/2~.^ ACA Consulting Services Agreement between February 7, 2012 City of Dubiin and Kimley-Horn and Associates, Inc. Page 14 of 14 EXHIBtT A SCOPE OF SERVICES To perform preliminary engineering, environmentai clearance, right-of--way clearance, and utility relocations as delineated in the attached proposal dated November 20, 2011, for the Dougherty Road improvements Project (Sierra Lane to North Cify Limits). G:IC]Plpougf~edy Rd Improvements - 5lerra Into City LimitslConsufiantldraft agreement UT f712.doc consulting Services Agreement between February 7, 2012 City of Dublin and Kimley-Horn Associates, Inc,--Exhibit A Page 1 of 1 EXHIBIT B COMPENSATION SCHEDULE The term of the agreement shall be for a period ending ,June 2013. Compensation shall be paid per the attached Fee Schedule. City shall pay Consultant on atime-and-materials basis in an amount not to exceed the total sum of Seven Hundred Fifly-Three Thousand Dollars and No Cents j$753,Oa0A0) for services to be performed pursuant to this Agreement. Consultant shat[ submit invoices at the end of each specific project or as agreed between Consultant and City regarding each specific project, based on the cast for services performed. The totaC sum stated above shall be the total which City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement ,City shall make no payment for any extra, further or additional service pursuant fo this Agreement unless such extra service and the price therefor is agreed to in writing executed by the City Manager or other designated official of City authorized to obligate City thereto prior to the time such extra service is rendered and in no event shall such change order exceed twenty-five percent (25%} of the initial contract price. The services fo be provided under this Agreement may be terminated without cause at any point in time in the sole and exclusive discretion of City. If the Agreement is terminated by City, Consultant shalE be enti#led to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination, In that event, all finished and unfinished documents and other materials shall, at the option of the City, become City's sole and exclusive property. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to date. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of a fully executed Purchase Order from the Finance Departmen# of the City of Dublin. 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