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HomeMy WebLinkAboutReso 96-17 Consulting Services Agmnt Jones Hall, PLC RESOLUTION NO. 96 — 17 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A CONSULTING SERVICES AGREEMENT BEWTEEN THE CITY OF DUBLIN AND JONES HALL, PLC. WHEREAS, the City has previously conducted proceedings to form City of Dublin Community Facilities District No. 2015-1 (Dublin Crossing) and five Improvement Areas; and WHEREAS, each Improvement Area is authorized to issue one or more separate series of bonds; and WHEREAS, on January 20, 2015, the City entered into a contract with the Meyers Nave, PLC for bond and disclosure counsel services related to the formation of Dublin Crossings and subsequent bond issuance(s); and WHEREAS, Meyers Nave is no longer structured to provide such services for the remainder of the Dublin Crossing financing activities; and WHEREAS, the City now wishes to issue and sell one or more series of special tax bonds for each Improvement Area, secured by special taxes levied in such respective Improvement Area within the CFD; and WHEREAS, to issue and sell Bonds for the Improvement Areas of the CFD, the City desires to engage the services of nationally recognized bond counsel and disclosure counsel; and WHEREAS, Jones Hall, PLC was a respondent to the Request for Proposal for bond council and disclosure services previously issued by the City; and WHEREAS, Jones Hall, PLC has extensive experience representing cities and community facilities districts about bond issuances, and WHEREAS, the City desires to enter into an Agreement with Jones Hall, PLC, for bond and disclosure counsel on behalf of the CFD. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the consulting services agreement with Jones Hall PLC, as attached hereto as Exhibit A to the Resolution. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the agreement. PASSED, APPROVED AND ADOPTED this 18th day of July 2017, by the following vote: AYES: Councilmembers Biddle, Goel, Gupta, Hernandez and Mayor Haubert NOES: ABSENT: Reso No. 96-17, Adopted 7/18/2017, Item No. 4.2 Page 1 of 2 ABSTAIN: -bx ayor ATTEST: i City Clerk Reso No. 96-17, Adopted 7/18/2017, Item No. 4.2 Page 2 of 2 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND JONES HALL, PLC. This Agreement is made and entered into between the City of Dublin ("City")and Jones Hall, PLC("Consultant")as of July 18, 2017(the"Effective Date"). In consideration of their mutual covenants,the parties hereto agree as follows: 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 when the work described in Exhibit A is complete, 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 substantial,first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant as per the compensation schedule attached as Exhibit B, notwithstanding any contrary indications that may be contained in Consultant's proposal,for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit B, 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. 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. 1 2.1 Invoices. Consultant shall submit a single invoice, for each bond issuance as part of a costs of issuance requisition based on the fees set forth in Exhibit B.. No individual performing work under this Contract shall bill more than 2,000 hours in a fiscal year unless approved, in writing, by the City Manager or his/her designee. 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 copy of the applicable time entries or time sheets shall be submitted showing the following: • Daily logs of total hours worked by each individual performing work under this Contract • Hours must be logged in increments of tenths of an hour or Quarter hours • If this Contract covers multiple projects, all hours must also be logged by project assignment • A brief description of the work,and each reimbursable expense • 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; • The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A; • The Consultant's signature. 2.2 Monthly Payment. Consultant shall be paid its fees and reimbursable costs for each bond issuance from proceeds of the sale of bonds City shall make payments, based on invoices received,for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 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. 2.4 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule set forth on the compensation schedule attached as Exhibit B. 2.5 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B and shall not exceed $2,500 per each series of Bonds for bond counsel services). Expenses not listed below are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. 2 2.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.7 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8,the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.8 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks,filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location,quantity, 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. Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s)and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to City as an additional insured. Furthermore,the requirements for coverage and limits shall be(1)the minimum coverage and limits specified in this Agreement; or(2)the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured;whichever is greater. The additional insured coverage under the Consultant's policy shall be"primary and non-contributory"and will not seek contribution from City's insurance or self- insurance and shall be at least as broad as CG 20 0104 12. In the event Consultant fails to maintain coverage as required by this Agreement, City at its sole discretion may purchase the coverage required and the cost will be paid by Consultant. Failure to exercise this right shall not constitute a waiver of right to exercise later. Each insurance policy shall include an endorsement providing that it shall not be cancelled,changed, or allowed to lapse without at least thirty(30)days' prior written notice to City of such cancellation, change, or lapse. 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 3 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 volunteers for loss arising from work performed under this Agreement. An endorsement shall state that coverage shall not be canceled except after thirty(30)days'prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General requirements. Consultant, at its own cost and expense,shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used,either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non- owned automobiles. 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 1 ("any auto"). 4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a. City and its officers, employees, agents, and volunteers shall be covered as 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 volunteers, and that no 4 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 volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty(30)days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from 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 licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000)covering the licensed professionals'errors and omissions. 4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim. 4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits,except after thirty(30)days'prior written notice by certified mail, return receipt requested, has been given to the City. 4.3.3 The following provisions shall apply if the professional liability coverages are written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. C. If coverage is canceled or not renewed and it is not replaced with another claims- made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests'rating of no less than A:VII. 5 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 and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later. 4.4.3 Subcontractors. Consultant agrees to include with all subcontractors in their subcontract the same requirements and provisions of this Agreement including the Indemnification and Insurance requirements to the extent they apply to the scope of the Subcontractor's work. Subcontractors hired by Consultant agree to be bound to Consultant and the City in the same manner and to the same extent as Consultant is bound to the City under the Contract Documents. Subcontractor further agrees to include these same provisions with any Sub-subcontractor. A copy of the Owner Contract Document Indemnity and Insurance provisions will be furnished to the Subcontractor upon request. The General Contractor shall require all subcontractors to provide a valid certificate of insurance and the required endorsements included in the agreement prior to commencement of any work and will provide proof of compliance to the City. 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. All self-insured retentions(SIR)and/or deductibles must be disclosed to the City for approval and shall not reduce the limits of liability. Policies containing any self-insured retention provision and/or deductibles shall provide or be endorsed to provide that the SIR and/or deductibles may be satisfied by either the named insured or the City. 4.4.6 Excess Insurance. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City(if agreed to in a written contract or agreement) before City's own insurance or self-insurance shall be called upon to protect City as a named insured. 4.4.7 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies,which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: ■ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; 6 • 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. To the maximum extent allowed by law, Consultant shall indemnify, keep and save harmless the City, and City Councilmembers, officers, agents and employees against any and all suits,claims or actions arising out of any injury to persons or property, including death,that may occur, or that may be alleged to have occurred, in the course of the performance of this Agreement by a negligent act or omission or wrongful misconduct of the Consultant or its employees, subcontractors or agents. Consultant further agrees to defend any and all such actions, suits or claims and pay all charges of attorneys and all other costs and expenses arising therefrom or incurred in connection therewith; and if any judgment be rendered against the City or any of the other individuals enumerated above in any such action, Consultant shall, at its expense,satisfy and discharge the same. Consultant's responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by,the insurance obligations contained in this Agreement. 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 payment of any penalties and interest on such contributions,which would otherwise be the responsibility of City. Consultant/Subcontractor's responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law. 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 7.1 Governinq Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits,qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate,on the basis of a person's race, religion,color, national origin, age, physical or mental handicap or disability, medical condition, marital status,sex,or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract,or participant in, recipient of,or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment,contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 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 8 Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein,other than to the subcontractors noted in the proposal,without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to,the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models,charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records,files,or any other documents or materials, in electronic or any other form,that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are 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 9 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. 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 10 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. Principals and those performing work for City of Dublin may be required to submit a California Fair Political Practices Commission(FPPC) Form 700: Statement of Economic Interests documenting potential financial conflicts of interest. For additional information, proposers should refer to the FPPC website at http://www.fppc.ca.gov/Form700.html. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting,focus group,or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the City Manager("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Jones Hall, PLC David Fama 475 Sansome Street, Suite 1700 San Francisco,CA 94111 Any written notice to City shall be sent to: The City of Dublin Attn: Colleen Tribby 100 Civic Plaza Dublin, CA 94568 10.11 Integration. This Agreement, including Exhibits A and B, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. 11 IN WITNESS HEREOF, the parties have caused their authorized representatives to execute this Agreement on the 18th day of July, 2017. CITY OF DUBLIN CONSULTANT CHRISTOPHER L. FOSS, DAVID T. FAMA, CITY MANAGER VICE PRESIDENT Attest: Caroline Soto, City Clerk Approved as to Form: John Bakker, City Attorney 12 EXHIBIT A SCOPE OF SERVICES Upon execution of this Agreement, the City,on behalf of the CFD, will be Attorney's client and an attorney-client relationship will exist between City and Attorneys.Attorneys assume that all other parties will retain such counsel, as they deem necessary and appropriate to represent their interests in this transaction. Attorneys further assume that all other parties understand that in these transactions for the CFD and Improvement Areas,Attorneys represent only the City,Attorneys are not counsel to any other party, and Attorneys are not acting as an intermediary among the parties.Attorneys'services as bond counsel and disclosure counsel are limited to those contracted for in this Agreement;the City's execution of this Agreement will constitute an acknowledgment of those limitations.Attorneys' representation of the City will not affect, however, our responsibility to render an objective Bond Opinion. The Scope of bond counsel services consists of the following: • Consultation and cooperation with City and City staff to assist in the formulation of a coordinated financial and legal issuance of the Bonds. • Participation in teleconferences and meetings with the City,the owners and developers of land in the CFD and the City's consultants about the issuance of the Bonds. • Preparation of all legal proceedings for the authorization, issuance and delivery of the Bonds by the City; including (a) preparation of a resolution of the governing board of the City authorizing the issuance and sale of the Bonds and approving related documents and actions, (b) preparation of all financing documents, (c) preparation of all documents required for the closing of the issue, (d)supervising the closing, and (e) preparation of all other proceedings incidental to or in connection with the issuance and sale of the Bonds. • Advising the City,from the time Attorneys are hired as Bond Counsel until the Bonds are issued, as to compliance with federal tax law as required to ensure that interest on the Bonds is exempt from federal income taxation. • Upon completion of proceedings to Attorneys'satisfaction, providing a legal opinion(the"Bond Opinion") approving the validity and enforceability of the proceedings for the authorization, issuance and delivery of the Bonds, and stating that interest on the Bonds is(a)excluded from gross income for purposes of federal income taxes and (b)exempt from California personal income taxation. The Bond Opinion will be addressed to the City, and may also be addressed to the underwriter of the Bonds and other participants in the financing. • Assist the City, if needed, in presenting information to bond rating organizations and providers of credit enhancement relating to legal issues affecting the issuance of the Bonds. • Such other and further services as are normally performed by bond counsel about similar financings. • For a reasonable time following the closing of each series of Bonds, answer questions and provide requested guidance related to administration of the Bonds. Attorneys' Bond Opinion will be delivered by Attorneys on the date the Bonds are exchanged for their purchase price (the"Closing"). The Bond Opinion will be based on facts and law existing as of its date, will cover certain matters not directly addressed by such authorities, and will represent Attorneys'judgment as to the proper treatment of the Bonds for federal income tax purposes.Attorneys'opinion is not binding on the Internal Revenue Service("IRS")or the courts. Attorneys cannot and will not give any opinion or assurance about the effect of future changes in the Internal Revenue Code of 1986(the"Code"),the applicable regulations,the interpretation thereof or the enforcement thereof by the IRS. City acknowledges that future legislation, if enacted into the full current benefit of the tax status of such interest. The introduction or enactment of any such future legislation or clarification of the Code may also affect the market price for, or marketability of,the Bonds. Attorneys will express no opinion regarding any pending or proposed federal tax legislation. In rendering the Bond Opinion,Attorneys will rely upon the certified proceedings and other certifications of public officials and other persons furnished to Attorneys without undertaking to verify the same by independent investigation, and Attorneys will assume continuing compliance by the City with applicable laws relating to the Bonds. The scope of disclosure counsel services consists of the following: • Prepare the Official Statement(both preliminary and final)or other disclosure documents about the offering of the Bonds. • Confer and consult with the officers and administrative staff of the City,the owners and developers of land in the CFD and the City's consultants about the issuance of the Bonds as to matters relevant to the City's obligations about the Official Statement. • Participate in all meetings and telephone conferences of the City and any administrative meetings at which the Official Statement is to be discussed, as requested by the City and/or as determined by Attorneys for the proper exercise of their due diligence with respect to the Official Statement. • On behalf of the City, prepare the bond purchase contract, or review the bond purchase contract prepared by counsel to the underwriter, pursuant to which the Bonds will be sold to the underwriter. • On behalf of the City, prepare a continuing disclosure certificate of the City to assist the underwriter with complying with Securities and Exchange Commission Rule 15c2-12. • Subject to the completion of proceedings to the satisfaction of Attorneys, provide a letter of Attorneys addressed to the City and the underwriter that, although Attorneys are not passing upon and do not assume any responsibility for the accuracy,completeness or fairness of the statements contained in the Official Statement and make no representation that Attorneys have independently verified the accuracy, completeness or fairness of any such statements, no facts have come to Attorneys'attention that cause Attorneys to believe that the Official Statement(except for any financial and statistical data and forecasts, numbers, estimates, assumptions and expressions of opinion, and information concerning any Bond Insurance Policy and any Bond Insurer,and information concerning the Depository Trust Company and the book-entry system for the Bonds, contained or incorporated by reference in the Official Statement and the appendices to the Official Statement, which Attorneys will expressly exclude from the scope of this sentence)as of the date of the Official Statement of the date hereof contains any untrue statement of material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The City and Jones Hall expressly acknowledge that Jones Hall's bond counsel services and disclosure counsel services shall note include the following, although Jones Hall may provide such services pursuant to a separate agreement: • Preparing requests for tax rulings from the Internal Revenue Service, or"no-action"letters from the Securities and Exchange Commission. • Preparing blue sky or investment surveys with respect to the Bonds. • Except as described above,drafting state constitutional or legislative amendments. • Pursuing test cases or other litigation, such as contested validation proceedings, or representing the City in any litigation or legal challenges with respect to the CFD. • Making an investigation or expressing any view as to the creditworthiness of the City or the Bonds. • After Closing, providing advice concerning any actions necessary to assure compliance with continuing disclosure obligations under Securities and Exchange Commission Rule 15c2-12. • Representing the City in Internal Revenue Service examinations, audits or inquiries, Securities and Exchange Commission investigations, or in any litigation involving the City or the proceedings relating to the Bonds.Attorneys can do so, however a separate engagement would be applicable. • After Closing, unless specifically requested to do so by City,and agreed to by Attorneys, initiating continuing advice to the City or any other party concerning any actions that need to be taken regarding the Bonds; e.g., actions necessary to assure that interest paid on the Bonds will continue to be excludable from gross income for federal income tax purposes(e.g., our engagement does not include rebate calculations for the Bonds). • Reviewing or opining on the business terms of, validity, or federal tax consequences of any investment agreement that the City may choose as an investment vehicle for the proceeds of the Bonds, unless the City and Attorneys agree on the terms of such review and compensation for such review. • Undertaking past continuing disclosure compliance. In this regard,Attorneys may rely on a certificate of a consultant to the City who will be engaged to perform the necessary due diligence. • Reviewing or opining on the business terms of, validity, or federal tax consequences of any derivative financial products, such as an interest rate swap agreement,that the City may choose to enter about the issuance of the Bonds, unless the City and Attorneys agree on the terms of such review and compensation for such review. EXHIBIT B COMPENSATION SCHEDULE Fee Schedule for Bond Counsel For the Bond issuance services performed by Attorneys, as described in Exhibit A, the City, on behalf of the CFD and only with CFD funds,will pay Attorneys a fee for the initial series of bonds for Improvement Area No. 1 a fee of $80,000. Compensation for later series of bonds for the Improvement Areas will be determined by mutual agreement prior to issuance of such later series. Payment of fees and expenses for each series of Bonds is entirely contingent on the successful issuance of that series of Bonds,will be due and payable upon the delivery of the Bonds and will be payable solely from the proceeds of the Bonds and from no other funds of the City. In addition,for each series of the Bonds,the City shall pay to Attorneys all direct out-of-pocket expenses for messenger and delivery service, photocopying,closing costs, legal publication expenses and other costs and expenses incurred by Attorneys about their services hereunder(but excluding travel within California), in an amount not to exceed $2,500 per each series of Bonds. Fee Schedule for Disclosure Counsel For the Disclosure Counsel services performed by Attorneys as describe in Exhibit A,the City, on behalf of the CFD, and only with CFD funds will pay Attorneys a fee for the initial series of bonds for Improvement Area No. 1 a fee of $40,000. Compensation for later series of bonds for the Improvement Areas will be determined by mutual agreement prior to issuance of such later series., Disclosure counsel fees are inclusive of any reimbursable expenses. Payment of Attorneys' disclosure counsel fees for each series of Bonds is entirely contingent on the successful issuance of that series of Bonds, will be due and payable upon the delivery of the Bonds and will be payable solely from the proceeds of the Bonds and from no other funds of the City.Attorneys'fee is not set by law but is negotiable between Attorneys and City.