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HomeMy WebLinkAbout4.14 NBS Govt AD Consult CITY CLERK FILE # 600-30 AGENDA STATEMENT CITY COUNCIL MEETING DATE: March 20, 2001 SUBJECT: Agreement with NBS Government Finance Group for Assessment District Consulting Services Report Prepared by: Lee S. Thompson, Public Vforks Director ATTACHMENTS: 1) Resolution 2) Proposed Agreement RECOMMENDATION.~ ~ Adopt resolution FINANCIAL STATEMENT: The proposed cost of services is as follows: Annual administration $19,000 Services related to specific annexations or potential increases (if needed) $ 7,000 Recommended not-to-exceed: $26,000 The cost of services would be paid from funds collected in each specific assessment district or fee a~cotmt. Costs over and above the $19,000 annual administration cost would only be incurred ifthose special services are provided. The cost of services related to the Dublin Ranch Street Light District annexation would be paid by the developer. These costs replace the current annual expenditure for data processing ($5,750), as well as most of the cost of Staff time' for preparing engineer' s reports, staff reports, parcel research, calculations, and noticing procedures. DESCRIPTION: The City currently has five landscaping and lighting assessment districts and also administers collection of fees for refuse collection/recycling and for emergency medical services (EMS). In the past, preparation of engineer' s reports, calculation of assessments, and the research involved to ensure inclusion of new parcels has largely been accomplished by Staff. The computer rims and data submittals to the Assessor' s Office were then prepared by an outside data processing firm (Active Data) based on the figures that Staff provided. Active Data is ceasing operation, and it is therefore necessary to contract with another firm for that service. As the City continues to grow and the number of parcels increases, this work has become more and more time consuming and complicated. The advent of Proposition 218 has increased the steps necessary to notify property owners in the event of a potential increase. As the workload for the fees and assessments has increased, the available Staff time has decreased due to development and other projects. Staff is therefore proposing to contract with NBS Government Finance Group to provide some or all of the g:\engr contracfinbsXagst agreement COPIES TO: T.J. Reilly, NBS ITEM NO. assessment district and fee collection services. NBS currently administers the City' s Dublin Boulevard Extension bond district and has an extensive list of clientele among the public agencies in California, It may be necessary to propose a rate increase in at least one landscape assessment district (Dougherty Road) for the upcoming fiscal year. While an adjustment to the Citywide Street Light District is probably not necessary this year, increases in the cost of energy may ultimately necessitate a change.. NBS would be able to assist, not only with the legal-ramifications of these issues, but also with the actual mailings to property owners. NBS would also be able to assist with the annexations of Area A and Area G into the Dublin Ranch Street Light District and the calculation of assessments based on the new areas. The cost of processing the annexation would be paid by the developers. NBS has a constantly updated access to the County property owner records, as opposed to the once-a-year update that was provided by Active Data, and can therefore provide more reliable and up-to-date parcel information for calculation of assessments and noticing property owners. The cost of these services would be charged, as administrative costs, to each individual assessment district or fee collection. NBS has agreed to perform this year' s data processing service at the same cost that the City previously paid to Active Data. The costs proposed for the other services appear to be reasonable and commensurate with the time and expertise needed to accomplish the service. Other than the annual $19,000 administrative cost, the other charges would only be incurred if the services are provided; however, Staff is recommending a $26,000 not-to-exceed so that the other services could be accomplished if needed without additional Council approval. (However, no changes in assessment can be made without Council approval through the public hearing process.) Staff recommends that the City Council approve the agreement with NBS for financial services. RESOLUTION NO. - 01 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AGREEMENT FOR FINANCIAL SERVICES WITH NBS GOVERNMENT FINANCE GROUP WHEREAS, the City of Dublin administers Landscaping and Lighting Assessment Districts and the collection of fees for services; and WHEREAS, the City of Dublin submits these annual fees and assessments to the Alameda County Assessor for inclusion in property tax statements; and WHEREAS, the workload related to these services has increased because of new development; and WHEREAS, the cost of services proposed to be provided by NBS Government Finance Group is reasonable and commensurate with the time and expertise needed to provide the service. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin approves the agreement with NBS Government Finance Group, with an annual not-to-exceed of $26,000. BE IT FURTHER RESOLVED that the Mayor is authorized to execute the agreement. PASSED, APPROVED AND ADOPTED this 20th day of March, 2001. AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mayor City Clerk g:\engr contracfinbs~reso agreement ¢, / ¢ 'STANDARD CONSULTING ENGINEERING SERVICES AGREEMENT THIS AGREEMENT is made at Dublin, California, as of March 20, 2001, by and between the CITY OF DUBLIN, a municipal corporation CCity"), and NBS Government Finance Group ("Consultant"), who agree as follows: 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in Exhibit A. Consultant shah provide said services at the time, place, and in the manner specified in Exhibit A. 2. PAYMENT. City shall pay ConsUltant for services rendered pursuant to this Agreement at the time and in the manner set forth in Exhibit B. The payments specified in Exhibit B shall be the only payments to be made to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all billings for said services to City in the manner specified in Exhibit B; or, ifno manner be specified in Exhibit B, then according to the usual and customary procedures and practices which Consultant uses for billing clients s'm'dlar to City. 3. FACILITIES AND EQUIPMENT. Except as set forth in Exhibit C, Consultant shall, at its sole cost and expense, furnish all facilities and eqUipment which may be required for furnishing services pursuant to this Agreement. City shall furnish to Consultant only the facilities and equipment listed in Exhibit C according to the terms and conditions set forth in Exhibit C. 4. GENERAL PROVISIONS. The general provisions set forth in Exhibit D are part ofthis Agreement. In the event of any inconsistency between said general provisions and any other terms or conditions of this Agreement, the other term or condition shall control insofar as it is inconsistent with the general provisions. 5., EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference incorporated hereirk 6. SUBCONTRACTING. The Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this contract shall be subcontracted without written authorization by the City, except that which is expressly identified in the Consultant's proposal. 7. 'CHANGES. City may from time to time require changes in the scope of the services by Consultant to be performed under this Agreement. Such changes, including any change in the amount of Consultant's compensation which are mutually agreed upon by City and Consultant, shall be effective as amendments to this Agreement only when in writing. 8. RESPONSIBLE CHARGE. Consultant shall assign a project manager(s) to the project for the duration of the project. There shall be no change in the Project Manager or members of the project 'team without prior written approval by the City. The Project Manager for Consultant shall be T. J. Reilly. Agreement Page 1 of 2 03/08/01 .&"rTFACHMENL ...................... 9. CONTRACT ADMINISTRATION. ThiSAgreement shall be administered by LEE S. THOMPSON CAdmini.qtrator"). All correspondence shall be directed to or through the Administrator or his or designee. 10. NOTICES. Any written notice to Consultant shall be sent to: · T. J. Reilly NBS Government Finance Group 41661 Enterprise Circle North, Suite 225 Temecula CA 92590 Any written notice to City shall be sent to: Lee S. Thompson Director of Public Works/City Engineer 100 Civic Plaza Dublin, CA 94568 Executed as of the day first above stated: CITY OF DUBLIN, a municipal corporation By Attest: City Clerk By "Consultant" Approved as to form: City Attorney Agreement Page 2 of 2 03/08/01 EXHIBIT A SCOPE OF SERVICES AND SCHEDULE PER PROPOSAL DATED MARCH 6, 2001, ATTACHED. Exhibit A T~_~ I ~.~1 NBS NBS Government Finance Group March 6, 2001 PL BLJC WORKS Mr. Lee Thompson Public Works Director Ms. Ginger Russell Management Assistant CITY OF DUBLIN 100 Civic Plaza Dublin, CA94568 Subject:. NB~vt~FG Professional Consulting Services Dear Mr. Thompson and.. Ms. Russell: It was a pleasure to meet with you recently. We look forward to providing. you with our services and support for your assessment needs. The options discrinsed'. in' our meeting are listed in the Scope of Services below, The $19,000 annual administration 1~ listed in Option 2 represents the Scope of Services listed in Option 1 and 2. Please. f'md attached. two (2) copies of our Agreement to Provide Consulting Services.. Upon signing, please return both copies to NBS/GFG for completion of signatures and we will then remm one copy to the City for your records. SCOPE OF SER VICES ]OPTION 1- Tax Roll Billing , , .I NBS/GFG will load the current parcel databases into our system, as provided by A1Regan. NBS/GFG will run comparisons against ~e County roll and provide reports to you for new, deleted and' changed parcels. NBS/GFG will receive the fiat rates to be applied from the City for the Garbage and EMS levies, as' welt as the specific mounts for the Landscape .& Lightingdistricts., NBS/GFG will provide a summary'anddatabase back to the'City showingthe'levied" amounts. NBS/GFG wilt provide the pertinent data to Alameda County before the August 10t~ deadline for placement on the tax roll. NBS will provide the reject list to the City for any corrections and resubmit corrections to the COunty. 41661 Enterprise Circle North, Suite 225, Temecula, CA 92590 909.296.1997 Temecuia San Francisco Page 1 Dub linl ktxR oll_.d dm in 2- 21-O L doe 800.676.7516 Fax 909.296.1998 lop TIoN 2 - 19.72 Act Administration I EXPERT RESOURCE. First and foremost, NBS/GFG will act as the City's "expert resource," and is available to answer questions and advise the City on particular issues involving the Landscape and Lighting Maintenance Districts. KICK-OFF MEETING, PROJECT SCHEDULE. NBS/GFG will coordinate with City staff, legal counsel and other interested parties to: Establish lines of commtmication. Clarifythe specificproject goals, components and criteria that will' meet City preference. Identify and resolve any special circumstances that may be involved in the update/administration of the districts. Deveiop project schedules to meet legal requirements and provide for effective interfacing of all involved parties. Establish meeting points consistent with schedule to achieve project milestones. Establish and coordinate with City staff a schedule to assure completion of necessary actions and compliance with statutes. REVIEW EXISTING ENGIJ~EER 'S REPORT. NBS/GFG will review the existing Engineer' s Report and Method of Assessment for the City to. identify areas where the special benefit nexus is deficient. Specific evaluation will be made based on the language used to describe benefit received, and the requirements of Proposition 2 18. DATABASE DEVELOPMENT. NBS/GFG will access current information from various data sources to verify that all parcels-witbAn district boundaries are included in the database. We wilt also verify- ltmt all land 'use designations and' assessment' benefit factors 'are correct. We will order current County Assessor's information regarding property owner names and addresses, and an>, other available data that will attgment the existing database. BUDGET PREPARATION. NBS/GFG will coordinate with City staff to establish district budgets for the coming fiscal year. This budget will be based on historical costs and actual and/or projected changes in costs and/or improvements to be maintained. Cost categories may include, but are not limited to capital improvements and maintenance costs, incidental costs (engineexing, legal, Agency adn/mistration) and reserve funds. ASSESSMENT COMPUTATION AND RATE ANALYSIS. NBS/GFG will compute the assessment for each parcel in the districts according to the assessment rate methodology. We will provide an assessment summary which will include a comparison of current year rams versus prior year rates, separate by zone and land .use, if applicable, and district fund balance information. ' NBS Government Finance Group Page 2 Dublin1~xRotl_Admin 2~l-Ol.doe PROPOSITION 218 ANAZYSIS. NBS/GFG will prepare projection charts cornparing future" assessment revenue. versus future district costs over a five to ten year period to 'determine when a Proposition 2 18. assessment balloting.proced.ure may be required due to an anticipated increase in assessments. ASSESSMENT DIAGRAM. NBS/GFG will obtain the existing assessment diagram and update the diagram for boundary and/or parcel changes, as necessary. ENGINEER'S REPORT PREPARATION. NBS/GFG will prepare the annual Engineer's Report andI provide the Draft Report to City staff. The Report will' consist of: A discussion of the background of the districts. : A detailed and tectmicatly supported Method of Assessment. A description of the improvements. and services' that are being funded by the districts. A cost estimate for the improvements and services being funded. A current Assessment Diagram. A table showing assessed rates by zone and' land use. An Assessment RolI listing assessments by parcel or reference a complete roll on file in the offices of the City. REVIEW WITH AGENCY STAFF. NBgtGFG will review with City staff the. Draft Engineer's Report fbr modifications and approval'. NOTICING AND' RESOLUTION COORDINATION. NBS!GFG will coordinate activities to ensure that required "tasks are completed within the scheduled time frame. We will assist 'the City (or .the City'-s legaI counsel).with preparation of any notices of assessments, public hearings, or other meetings required for publication~ We will assist the City (or the City's legal counsel) with preparation of the staff report, all legal notices and the associated resolutions described below: Resolution describing improvements, initiating proceeding, and ordering the engineer to prepare and file a report for the districts. Resolution preiiminarily approving the Engineer' s Reports. Resolution of Intention declaring the intention of the Agency CouncilBoard to levy and collect .assessments and setting a date for the public hearing(s). Resolution authorizing the placement of assessments on the property 'tax bills. Resolution approving Final Engineer's Reports. AGENCY COU. NCIL MEETING ATTENDANCE. meetings to respond to questions on the Engineer's Council Member questions. NBS/GFG wilt attend the City Council Reports and answer property owner or LEVY SUBMITTAL. NBS/GFG will submit the. levy to the County Auditor. Controller' in' the required format e.g., magnetic tape, diskette or hard copy. Assessments, rejected.by the .County Auditor Controller will be researched and resubmitted for collection on the Coun~-Tax Roll. Any parcels that are not submitted to the County for collection will be invoiced for payment directly to the public agency. NBS Government Finance Group Page 3 Dublin:tk~cgolt_Adrnin 2-21-Ol.doc. FINAL ENG1NEER'S REPORT. NBS/GFG will update annual Engineer' s Report and deliver the Report to City staff. TOLL-FREE PHONE NUMBER. NBS/GFG shall provide a toll-flee phone.number for use by the City, other interested' parties and all property oysters. We wiI1 be available to answer questions regarding the districts and ongoing collection of assessments.. Bilingual staff is available' to assist Spanish-speaking property owners. I Proposition 218 Compliance '1 NBS/GFG has worked with many public agencies on their assessment levies in order .to. comply with the requirements o f' Proposition' 218 ~ Each' agency has '-different requirements and resources to complete the necessary tasks for the assessment balloting procedures. Therefore, we recommend an individually tailored approach to Proposition 2 t 8 Compliance. For the City of Dublin,. NBS/GFG recommends that the two districts potentially' requiring Proposition 2 !8 balloting procedures: for 2001/02 levy be coordinated. simultaneously. TAILORED APPROACH. There are a variety of ways to approach a Proposition 218 Assessment Balloting program. NBS wilI provide services to the City in whole, or in. part, as the City desires. A tailored Proposition 218 Assessment Baitoting progrin might include part or all of the following: Prepare Notice and Ballot Material Prepare Board Resolutions Database Compilation Property Owner Address Verification Mail Notice and Ballots Bar Codingof Ballots Tabulation of Batl0ts. Property Owner Information Campaign which: may include: t. Mailed' information Pamphlets 2. Property .Owner. Meetings. 3. Newspaper Advertising, 4. Telephone Calls to Property Owners 5. Door to-Door Visits. to. Property Owners 6. Meetings with Advocate Groups Toll-Free Telephone Number for Property Owners NBS Government Finance Group Page 4 Dublin~ocRoll_Adtru~z 2-21-OI.doc FEE STRUCTURE [OPTION 1 - Tax Roll Billing The City shall pay NBS/GFG an annual'cost of $5,750. The annual fee wilt be billed in four equal installments on a quarterly basis commencing with the period .beginning on April 1, 2001 ~ The Annual Special Tax Adrninistration Fee may increase on an annual basis to reflect the cost of inflation. The annual increase shah be applied beginning with Fiscal Year 2002/03 in amount equal to the increase, if any, in the Consumer Price Index for the region most closely portraying the cost of inflation in the Northern California. Bay Area. 'District/Levy EMS Garbage " 83 - I Street Light AD 99-t Dublin Ranch Street Light AD 86-1 Landscape AD 83-2 Landscape AD 97-1 Landscape AD TOTAL Annual Cost $t,000 t ,000 1,750 500 500 500 500 $5,750 ] OPTION 2 - Landscape and Lighting Administration' [ The following fees quoted for Proposition 2'18 and Annexation Procedures are contingent .on NBS/GFG being hired for the full administration of the districts. District/Levy EMS Garbage 83-t Street Light AD (218) 99-I Dublin Ranch Street Light AD (Am~exation) 86-1 Landscape AD (218): 83~2 Landscape AD 97'1 Landscape.AD Annual. Cost $1,000 1,000 6,000 2,500 2,500 2,500 3,500 TOTAL $t9~000 This fee represents 'the Scope of Services listed in 'Option-1 m~'d 2. These additional fees are onestime only and would only be incurred of NBS/GFG for possible Proposition 218 ball'oting and annexation ~' ' NBS Government ('~ F: ~ Finance Group ' Prop 218/Annexation · N/A N/A $4,000 500 2,500 N/A' N/A · $7,000 ** if the City requests the assistance procedures. Page 5 Dublinl hxPwH_./t drain 2-21-01, doc EXttIBIT B PAYMENT SCHEDULE City shall pay Consultant an amoUnt not to exceed the total sum of Twenty-Six Thousand Dollars ($26,000) annually for services to be performed pursuant to this Agreement. Consultant shall submit invoices on a quarterly basis for annua1 administration, and upon performance for special services over and above the annual administration. The cost of specific services shall.be at time and materials as per the breakdown provided in the proposal dated March 6, 2001. Consultant shall be allowed annual cost increases commensurate with the Consmer Price Index for all urban consumers as delineated in the proposal. The total sum stated above shall be the annual 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 to this Agreement unless such extra service and the price therefor is agreed to in writing executed by the City Manager or other designated official of City authorized to obligate City thereto prior to the time such extra Service is rendered and in no event shall such change order exceed twenty-five percent (25%) of the initial contract price. The services to be provided under this Agreement may be terminated without cause at any point in time in the sole and exclusive discretion of City. If the Agreement is terminated by City, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. In that event, all 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 Department of the City of Dublin- Exl'n'bit B Page 1 of 1 03/08/01 EXHIBIT C City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Contractor's use while consulting with City employees' and reviewing records and the information in possession of City. The location, quantity, and time of furnishing said physical facilities shall be in the sole discretion of City. In no event shah City be obligated to furnish any facility which may involve incurring any direct expense, including, but not limiting the generality of this .exclusion, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Exhibit C Page i of 1 03/08/01 EXHIBIT D GENERAL PROVISIONS J INDEPENDENT CONTRACTOR.. At all times during the term of this Agreement, Consultant shall be anindependent 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 engineering services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. LICENSES; PERMITS: ETC. Consultant represents and warrants to City that he has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice his profession.' Consultant represents and warrants to City that Consultant shall, at his sole cost and expense, keep in effect at all times during the term ofthis Agreement any ,licenses, permits, and approvals which are legally required for Consultant to practice his profession. TIME. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Consultant's obligations pursuant to this Agreement. INSURANCE REOUIREMENTS. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, his agents, representatives, employees or subcontractors. The cost of such insurance shall be included in the Consultant's bid. A. Minimum Scope of Insurance. Coverage shall be at least as broad as: (1) Insurance Services Office form number GL 0002 (Ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 coveting Broad Form Comprehensive General Liability; or Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001). (2) Insurance Services Office form number CA 0001 (Ed. 1/78) coveting Automobile Liability, code 1 "any auto" and endorsement CA 0025. (3) Worker's Compensation insurance as required by the Labor Code of the State of California and Employers Liability Insurance. B. Minimum Limits of Insurance. Consultant shall maintain limits no less than: Exhibit D Page 1 of 5 03/08/0'1 (1). General Liability: $1;000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial General Liability Insurance or.other form with a general aggregate limit is used, either the general aggregate limit shall apply Separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. (2) (3) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. Workers Compensation and Employers Liability: Workers Compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials and employees; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: ( 1 ) General Liability and Automobile Liability Coverages. (a) The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant, premises owned, occupied or used by the Consultant, or automobiles owned, leased, hired or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of the protection afforded 'tothe City, its officers, officials, employees or volunteers. Co) 'The Consultant's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. (c) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. Exhibit D Page 2 of 5 03/08/01 '5. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (2) Worker's Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the-City, its officers, officials, employees and volunteers for losses arising from work performed by the Consultant for the City. (3) Professional Liability. Consultant shall carry professional liability insurance in an mount deemed by the City to adequately protect the City against liability caused by negligent acts, errors or omissions on the part of the Consultant in the course of performance of the services specified in this Agreement. (4) All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled 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. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A:VIII. Verification of Coverage. Consultant shall furnish City with certificates of insurance and with original endorsements effeeting coverage required by this chuse. 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 certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. The Risk Manager of City may approve a variation of those insurance requirements upon a determination that the coverages. scope, limits and forms of such insurance are either not commercially available or that the Citfs interests are otherwise fully protected. 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. Exhibit D Page 3 of 5 03/08/01 154/ 10. 11. ASSIGNMENT PROHIBITED. No party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. ' 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 removal of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, cause the removal of such person or persons. 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 his profession. All instruments of sendee of whatsoever nature which Consultant delivers to City pursuant to this Agreement shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of quality normally observed by a person practicing in Consultant's profession. HOLD HARMLESS AND RESPONSIBILITY OF CONSULTANTS. Consultant shall take all responsibility for the work, shall bear all losses and damages directly or indirectly resulting to him, to any subconsultant, to the City, to City officers and employees, or to parties designated by the City, on account of the negligent performance or character of the work, unforeseen difficulties, accidents, occurrences or other causes predicated on active or passive negligence of the Consultant or of his subconsultant. Consultant shall indemnify, defend andhold harmless the City, its officers, officials, directors, employees and agents from and against any. or all loss, liability, expense, claim, costs (including costs of defense), suits, and damages of every kind, nature and description directly or indirectly arising from the negligent performance of the work. This paragraph shall not be construed to exempt the City, its employees and officers from its own fraud, willful injury or violation of law whether willful or negligent. For purposes of Section 2782 of the Civil Code the parties hereto recognize .and agree that this Agreement is not a construction contract. By execution of this Agreement Consultant acknowledges and agrees that he has read and understands the provisions hereof and that this paragraph is a material element of consideration. Approval of the insurance contracts does not relieve the Consultant or subconsultants from hab'~ity under this paragraph. GOVERNMENTAL REGULATIONS. To the extent that this A~eement may be funded by fiscal assistance from another governmental entity, Consultant shall comply with all applicable roles and regulations to which City is bound by the terms of such fiscal assistance program. DOCUMENTS. All reports, data, maps, models, charts, designs, plans, studies, surveys, photographs, memoranda or other written documents or materials prepared by Consultant pursuant to this Agreement shall become the property of City upon completion of the work to performed hereunder or upon termination of the A~reement. No .such materials or properties Exhibit D · Page 4 of 5 03/08/01 produced in whole or in part under this Agreement shallbe subject to private use, copyrights, or patent rights by Consultant in the United States or in any other country without the express written Consent of City. City shall have uuresUicted authority to publish, disclose (as may be limited by the provisions of the California Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. Exhibit D Page 5 of 03/08/01