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RESOLUTION NO. 158 - 04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING AN AGREEMENT WITH SW A GROUP FOR ASSISTING WITH
THE LAND PLANNING OF THE EASTERN DUBLIN PROPERTIES OWNERS AREA
WHEREAS, a General Plan and Specific Plan Amendment Study was initiated by the City on
behalf of the Eastern Dublin Property Owners for 1,120 acres located generally east of Fallon Road to the
city limits and north of Highway 580, comprising thirteen parcels in eleven separate ownerships; and
WHEREAS, on May 10, 1993, the City Council certified a program Environmental Impact Report
("EIR") for the Eastern Dublin GPAlSP Project and an addendum thereto, dated May 4, 1993 (SCH
91103064). On August 22, 1994, the City Council approved another addendum to update plans to provide
sewer service. The May 10, 1993 program EIR, the May 4, 1993 addendum and the August 22, 1994
addendum are collectively referred to as the Eastern Dublin EIR; and
WHEREAS, the Project is consistent with the type, location and density of land uses approved
through the 1993 Eastern Dublin GP A/SP Project. All mitigation measures adopted for the GP AlSP
Project continue to apply to implementing projects such as the current PD Prezone; and all applicable City
development ordinances and standards apply to th.e Project except as otherwise approved through the
Project prezoning and related Stage 1 Development Plan; and
WHEREAS, upon approval of the Eastern Dublin GP AlSP Project, the City Council adopted
mitigation findings, a statement of overriding considerations, and a mitigation monitoring program as set
forth in Resolution 53-93, included in the Revised Draft Supplemental EIR referenced below; and
WHEREAS, the City completed an Initial Study for the Project consistent with CEQA Guidelines
sections 15162 and 15163 and determined that a Supplement to the Eastern Dublin EIR ("Supplemental
EIR") was required in order to analyze substantial ch8:nges in circumstances and new information since
certification of the Eastern Dublin EIR. A Notice of Preparation dated May 25,2001, was circulated with
the Initial Study to public agencies and interested parties for consultation on the scope of the Supplemental
EIR; and
WHEREAS, based on the Initial Study and responses to the Notice of Preparation, the City
prepared a Draft Supplemental EIR, followed and superseded by a Revised Draft Supplemental EIR dated
January 2002 and consisting of two bound volumes (SCH 2001052114). Volume 1 contains the Revised
Draft Supplemental EIR text; Volume 2 contains appendices, including the Notice of Preparation and
Initial Study; and
WHEREAS, the Revised Draft Supplemental EIR was circulated for the required 45-day public
review period, from January 15, 2002 to March 1, 2002. Responses to comments on the Revised Draft
Supplemental EIR were prepared and compiled in a Revised Final Supplemental EIR. The Revised Draft
and Final Supplemental EIRs were certified by the City Council as the Supplemental EIR for the Project on
April 2, 2002 in Resolution 40-02; and
WHEREAS, the Staff requires additional professional services from qualified consulting firms to
assist with the Specific Plan Amendment; and
WHEREAS, the firm SW A Group is qualified and capable of assisting with the Specific Plan
Amendment and land planning as described in the Consulting Services Agreement Scope of Services
Exhibit A (attached hereto) between the City of Dublin and SWA Group.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Dublin hereby
approves the contract agreement for consulting services with SW A Group and authorizes the City
Manager to negotiate and execute the contract, in the amount not-to-exceed $100,000.
PASSED, APPROVED AND ADOPTED this 3rd day of August, 2004.
AYES: Councilmembers McCormick, Oravetz, Sbranti and Zika, and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
d;Aiad
Mayor
1;~T~~
Dep ty City Clerk
G:\CC-MTGS\2004-qtr3\Ang\08-03.Q4\reso-SW A doc (Item 4.9)
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
SWA GROUP
RECEIVED
JUL 2 9 2004-
DUSLlN PLANNING
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
SWA Group ("Consultant") as of August 3, 2004.
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 one year thereafter, except that the Agreement shall be automatically
extended from year to year, unless the term of the Agreement is otherwise terminated, as
provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Consultant is engaged in the geographical area in
which Consultant practices its profession. Consultant shall prepare all work products
required by this Agreement in a substantial manner and shall conform to the standards of
quality normally observed by a person practicing in Consultant's profession.
1.3 Assi~nment of Personnel. Consultant shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that City, in its sole discretion, at any time
during the term of this Agreement, desires the reassignment of any such persons,
Consultant shall, immediately upon receiving notice from City of such desire of City,
reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance provided
in Section 1.1 above and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $100,000
(one hundred thousand) , which amount shall be based on the hourly rates set forth in Exhibit B,
notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be
performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this
Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of compensation, the
Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the
time and in the manner set forth herein. The payments specified below shall be the only payments from City
to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City
in the manner specified herein. Except as specifically authorized by City, Consultant shall not bill City for
duplicate services performed by more than one person.
Consulting Services Agreement between
City of Dublin and SWA Group
August 3, 2004
Page 1 of 13
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant's hourly rate of providing the services required hereunder, including
salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further
agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or
annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore
has no responsibility for such,contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost. for services performed and reimbursable costs
incurred prior to the invoice date. Said invoices shall reflect the specific tasks and
timetables identified in Exhibit A attached. Invoices shall contain the following information:
· Serial identifications of progress bills; i.e., Progress Bill NO.1 for the first invoice,
etc.;
· The beginning and ending dates of the billing period;
· A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement, and
the percentage of completion;
· At City's option, for each work item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person doing the
work, the hours spent by each person, a brief description of the work, and each
reimbursable expense;
· The total number of hours of work performed under the Agreement by Consultant
and each employee, agent, and subcontractor of Consultant performing services
hereunder, as well as a separate notice when the total number of hours of work by
Consultant and any individual employee, agent, or subcontractor of Consultant
reaches or exceeds 800 hours;
· The Consultant's signature.
2.2 Monthly Payment. City shall make monthly 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.
2.4 Chanaes in Scope of Work. City shall make no payment for any extra, further or
additional services pursuant to this Agreement unless such extra service and the price
therefore is agreed to in writing, executed by the City Manager or other designated official
of the City authorized to obligate City thereto prior to the time such extra service is rendered
and in no event shall such change order exceed twentYwfive percent (25%) of the initial
contract price.
2.5 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
Consulting Services Agreement between
City of Dublin and SWA Group
August3,2004
Page 2 of 13
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 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.
2.6 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the following fee schedule: Exhibit B.
2.7 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B, and shall not
exceed ten thousand dollars ($10,000.00). Expenses not listed in Exhibit B are not
chargeable to City. Reimbursable expenses are included in the total amount of
compensation provided under this Agreement that shall not be exceeded.
2.8 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.9 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.
2.10 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.
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.
Consulting Services Agreement between
City of Dublin and SWA Group
August 3, 2004
Page 3 of 13
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 ($1,000,000.00) 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 suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty (30) days' prior written
notice by certified mail, return receipt requested, has been given to the City.
4.2 Commercial General and Automobile Liabilitv Insurance.
4.2.1 General reauirements. 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 coveraqe. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1/73)
covering comprehensive General Liability and Insurance Services Office form
number GL 0404 covering Broad Form Comprehensive General Liability.
Automobile coverage shall be at least as broad as Insurance Services Office
Automobile Liability form CA 0001 (ed. 12/90) Code 1 ("any auto"). No
endorsement shall be attached limiting the coverage.
4.2.3 Additional reauirements. Each of the following shall be included in the insurance
coverage or added as an endorsement to the policy:
Consulting Services Agreement between
City of Dublin and SWA Group
August 3, 2004
Page 40f 13
a. City and its officers, employees, agents, and volunteers shall be covered
as insureds with respect to each of the following: liability arising out of
activities performed by or on behalf of Consultant, including the insured's
general supervision of Consultant; products and completed operations of
Consultant; premises owned, occupied, or used by Consultant; and
automobiles owned, leased, or used by the Consultant. The coverage
shall contain no special limitations on the scope of protection afforded to
City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not
on a claims-made basis.
c. An endorsement must state that coverage is primary insurance with
respect to the City and its officers, officials, employees and volunteers, and
that no insurance 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 suspended, voided,
canceled by either party, reduced in coverage or in limits, except after thirty
(30) days' prior written notice by certified mail, return receipt requested,
has been given to the City.
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain
for the period covered by this Agreement professional liability insurance for licensed
professionals performing work pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($1,000,000) covering the licensed professionals' negligent acts, 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 policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written
on a claims-made form:
Consulting Services Agreement between
City of Dublin and SWA Group
August 3,2004
Page 5 of 13
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 Acceptabilitv of insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coveraç¡e. Prior to beginning any work under this Agreement,
Consultant shall furnish City with certificates of insurance and with original
endorsements effecting coverage required herein. The certificates and
endorsements for each insurance policy are to be signed by a person authorized by
that insurer to bind coverage on its behalf. The City reserves the right to require
complete, certified copies of all required insurance policies, at any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
4.4.4 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverages, scope, limits, and forms of
such insurance are either not commercially available, or that the City's interests are
otherwise fully protected.
4.4.5 Deductibles and Self·lnsured Retentions. Consultant shall disclose to and
obtain the approval of City for the self-insured retentions and deductibles before
beginning any of the services or work called for by any term of this Agreement.
Consulting Services Agreement between
City of Dublin and SWA Group
August3,2004
Page 6 of 13
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 or self-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 Coveraae. In the event that any coverage required by this
section is reduced, limited, or materially affected in any other manner, Consultant
shall provide written notice to City at Consultant's earliest possible opportunity and
in no case later than five days after Consultant is notified of the change in
coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or
maintain any insurance policies or policy endorsements to the extent and within the time
herein required, City may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies City may have and are not the exclusive remedy for
Consultant's breach:
. Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
. Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder, or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof; and/or
· Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall
indemnify, defend with counsel approved by the City, (which approval shall not be unreasonably withheld),
and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against
any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal
injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law
or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or
omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor,
or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is
understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set
forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
endorsements required under this Agreement does not relieve Consultant from liability under this
indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any
Consulting Services Agreement between
City of Dublin and SWA Group
August3,2004
Page 7 of 13
damages or claims for damages whether or not such insurance policies shall have been determined to
apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this
Section and that it is a material element of consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS)to be eligible for enrollment in PERS as an employee of City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
payment of any penalties and interest on such contributions, which would otherwise be the responsibility of
City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall
be an independent contractor and .shall not be an employee of City. City shall have the
right to control Consultant only insofar as the results of Consultant's services rendered
pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3;
however, otherwise City shall not have the right to control the means by which Consultant
accomplishes services rendered pursuant to this Agreement.
6.2 Waiver of Employee Benefits. Notwithstanding any other City, state, or federal policy,
rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees,
agents, and subcontractors providing services under this Agreement shall not qualify for or
become entitled to, and hereby agree to waive any and all claims to, any compensation,
benefit, or any incident of employment by City, including but not limited to eligibility to enroll
in the California Public Employees Retirement System (PERS) as an employee of City and
entitlement to any contribution to be paid by City for employer contributions and/or
employee contributions for PERS benefits.
6.3 Consultant No Aaent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant and any subcontractors shall
Consulting Services Agreement between
City of Dublin and SWA Group
August 3, 2004
Page 8 of 13
comply with all applicable rules and regulations to which City is bound by the terms of such
fiscal assistance program.
7.4 Licenses and Permits. Consultant represents to City that Consultant and any
subcontractors have all licenses and permits that are legally required to practice their
respective professions. Consultant represents to City that Consultant and 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 Eaual Opportunity. Consultant shall not discriminate, on the
basis of a person's race, religion, color, national origin, age, physical or mental handicap or
disability, medical condition, marital status, sex, or sexual orientation, against any
employee, applicant for employment, subcontractor, bidder for a subcontract, or participant
in, recipient of, or applicant for any services or programs provided by Consultant under this
Agreement. Consultant shall comply with all applicable federal, state, and local laws,
policies, rules, and requirements related to equal opportunity and nondiscrimination in
employment, contracting, and the provision of any services that are the subject of this
Agreement, including but not limited to the satisfaction of any positive obligations required
of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement.
Section 8.
TERMINATION AND MODIFICATION.
8.1
Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall
include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Consulting Services Agreement between
City of Dublin and SWA Group
August 3, 2004
Page 9 of 13
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement.only by a writing signed by all the
parties.
8.4 Assiçmment 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
Section 9.
KEEPING AND STATUS OF RECORDS.
9.1
Records Created as Part of Consultant's Performance. All reports, data, maps, models,
charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records,
files, or any other documents or materials, in electronic or any other form, that Consultant
prepares or obtains pursuant to this Agreement and that relate to the matters covered
hereunder shall be the property of the City. Consultant hereby agrees to deliver those
documents to the City upon termination of the Agreement. It is understood and agreed that
the documents and other materials, including but not limited to those described above,
prepared pursuant to this Agreement are prepared specifically for the City and are not
necessarily suitable for any future or other use. City and Consultant agree that, until final
approval by City, all data, plans, specifications, reports and other documents are
Consulting Services Agreement between
City of Dublin and SWA Group
August 3, 2004
Page 10 of 13
confidential and will not be released to third parties without prior written consent of both
parties.
In consideration of Consultant's agreement to relinquish ownership of its instruments of
professional service to City pursuant to the terms of this Agreement, City agrees, to the
fullest extent permitted by law, to hold harmless and indemnify Consultant from and against
all claims, liabilities, losses, damages, and costs, including but not limited to reasonable
attorney's fees, arising out of or in any way connected with the conversion, modification,
misinterpretation, misuse, or reuse by City or others of the instruments of professional
service provided by Consultant under this Agreement, including those provided in electronic
form. The foregoing indemnification applies, without limitation, to any use of the project
documentation on other projects, for additions to this project, or for completion of this
project by others, excepting only such use as may be authorized in writing by Consultant.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this Agreement for a minimum of three (3) years, or for any longer period
required by law, lrom 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, ifthe 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 Attornevs' 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 Severabilitv. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provísions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
Consulting Services Agreement between
City of Dublin and SWA Group
August 3,2004
Page 11 of 13
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 Assi~ns. 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 iri this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months, Consultant
warrants that it did not participate in any manner in the forming of this Agreement.
Consultant understands that, if this Agreement is made in violation of Government Code
§1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any
compensation for services performed pursuant to this Agreement, including reimbursement
of expenses, and Consultant will be required to reimburse the City for any sums paid to the
Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be
disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Eddie Peabody
("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:
Consulting Services Agreement between
City of Dublin and SWA Group
August3,2004
Page 12 of 13
Elizabeth Shreeve
SWA Group
2200 Bridgeway Blvd.
Sausalito, CA 94965
Any written notice to City shall be sent to:
Eddie Peabody, Community Development Director
100 Civic Plaza
Dublin, CA 94568
10.11 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 shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled
"Seal and Signature of Registered Professional with report/design responsibility," as in the
following example.
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Intearation. This Agreement, including the scope of work attached hereto and incorporated
herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either
written or oral.
CITY OF DUBLIN
CONSULTANT
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Richard Ambrose, City Manager
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Elizabeth H. Silver, City Attorney
G:\PA#\2004\04-040 EDPO Specific Plan Amendment\contract with SWA\contactract rev7·27-04.doc
Consulting Services Agreement between
City of Dublin and SWA Group
August3,2004
Page 13 of 13
EXHIBIT A
SCOPE OF SERVICES
A. Preparation of Design Standards
1. As directed by City, Consultant will meet with City departments, including Planning, Public Works, and
Parks, to review background material (including the City's new Streetscape Master Plan, the Resource
Management Plan, and other relevant documents), define the relationship of the East Dublin Properties
Area to existing and proposed City standards, identify critical issues, and develop the scope of design
standards that will help to shape attractive, cost-effective, and imageable development of the !;ast
Dublin Properties Area.
2. If requested by City, Consultant will meet with the project applicants, led by Braddock & Logan and
their representatives, to discuss and better understand the status of current plans, development
expectations, and design studies.
3. Based on the above, Consultant will develop a set of design standards to guide land use and precise
planning, including streetscape, entries, parks and open space/trail connections, landscape and plant
species palettes, community edges, grading, and civic facilities. The design standards will consider such
issues as:
a. The ultimate character and landscape quality of streets, the incorporation of trail linkages to
regional and citywide destinations,
b. the interface between the various ownerships/parcels in terms of grading, street and trail
connections,
c. the treatment and use interface with the conservation corridor identified in the Resource
Management Plan.
If appropriate, Consultant will also prepare more detailed requirements for such issues as walls and
fences, site furnishings, signage, and lighting.
4. Consultant will meet with the City and, if requested by City, the project applicants to review and discuss
the design standards. The design standards will be formatted for use by project applicants in the
preparation of subsequent plan submittals.
B. Review of Material Submitted by Project Applicants
1. Consultant will assist the City in the review of plans and designs submitted by the project applicants.
2. If requested by City, Consultant will meet with the project applicants to discuss issues related to the
implementation of design standards and the need for modifications to plan submittals.
Consulting Services Agreement between
City of Dublin and SWA Group~~Exhibit A
August 3, 2004
Page 1 of 2
C. Preparation of Design Studies
1. If requested by City, Consultant will prepare focused design studies for specific areas, including the
"Fallon Village" area. These studies may also include architectural character studies for the village area
or other areas, as appropriate. Preparation of such studies shall be provided within the limits of any
remaining not-to-exceed fee amount.
D. Meetinqs and Plan Revisions
1. Meetings with the Client, public agencies, project applicant, and other project participants during the
course of work above for understanding and coordination shall be attended upon client request, within
the limits of the not to exceed fee amount.
2. Time required for plan changes, additions or revisions due to program changes by the Client or due to
conditions of approval imposed during the course of the public approval process shall be Extra Services
as indicated elsewhere in this Agreement.
EXCLUSIONS TO SCOPE OF SERVICES
Client shall provide the following information or services as required for performance of the work. Should SWA
be required to provide services in obtaining or coordinating compilation of this information, such services shall
be charged as Extra Services. SWA assumes no responsibility for the accuracy of such information or services,
may rely on the accuracy of such information, and shall not be liable for error or omissions therein.
A. Topography and boundary surveys in digital format.
B. Legal descriptions of property.
C. Soils investigations and/or engineering
D. Existing site engineering and utility base information.
E. Site environmental information required for planning processing.
F. Economic or market analyses.
G. Overhead aerial photographs at contro lied scale.
Adjustment of Rates:
Rates shall be paid as outlined in Exhibit B (Compensation Schedule)
Consulting Services Agreement between
City of Dublin and SWA GroupM-Exhibit A
August 3,2004
Page 2 of 2
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed seventy~five thousand dollars ($100,000) for
services provided at the following hourly rates. In the event of a conflict between this Agreement and
Scope of Services, attached as (Exhibit A), regarding the amount of compensation, the Agreement shall
prevail.
Billing Rates:
Principals
Rene Bihan
Joe Runco
Elizabeth Shreeve
$ 175.00
$ 175.00
$ 160.00
Associates
Maximum Rate:
$135
ClericallT echnícal Staff
Maximum Rate: $85
Reimbursable Expenses:
Cost of copies of drawings, xerography and photographic reproduction of drawings; automobile travel at
$0.35 per mile; other travel, lodging, subsistence, car rental and out-of-pocket expenses for travel in
connection with the work, long distance telephone and telegraph charges and postage, courier and
shipping costs shall be reimbursed to Consultant at cost plus 10% and are not included in the Fee for
Professional Services. Reimbursable expenses are expected at approximately 10% of the cost of services.
G:IPA#\2004104·040 EDPO Specific Plan Amendmentlcontract with SWAISWA Contract revised.doc
Consulting Services Agreement between
City of Dublin and SWA Group~~Exhibit B
August 3, 2004
Page 1 of 1