HomeMy WebLinkAboutReso 174-04 DevProjLangAmend
RESOLUTION NO. 174 - 04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING LANGUAGE AMENDMENTS FOR APPROVED CONTRACTS
WITH CONSULTANTS IN THE BUILDING DIVISION AND PLANNING DIVISION
RELATED TO BUILDING INSPECTION SERVICES, PRIVATE DEVELOPMENT PROJECTS,
LANDSCAPE ARCHITECTURAL & ARBORIST SERVICES
RELATING TO INDEMNIFICATION AND CONSULTANT RESPONSmlLITIES
WHEREAS. the City of Dublin is experiencing significant increases in new development
applications; and
WHEREAS. with the acceleration of new development projects in both Western and Eastern
Dublin, the need to retain outside consultant firms is necessary. and
WHEREAS, staff has determined it necessary to hire technical support to provide expertise in
Building and Planning and other specialized construction issues when current staff is unable to complete
projects in a timely fashion due to workloads. and
WHEREAS, the City of Dublin Planning Commission and City Council has directed staff to
move projects expeditiously, and hire consultant firms when services are needed, and
WHEREAS. the City has approved contracts with 10 firms to perform various technical services
and have demonstrated they have adequate ability to perform. and;
WHEREAS, Staff has determined it is necessary to add language amendments for approved
contracts related to indemnification and consultant responsibilities as an independent contractor, and;
WHEREAS. consultants will only perform work on a time and material basis at the direction of
the Community Development Director. and
WHEREAS, all costs will be charged to the Community Development Department budget in
accordance with costs associated with certain projects. and .
WHEREAS, the contracts and amendments have been reviewed and approved as to form by the
City Attorney's Office as to form.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
approve the language amendments in Section 5 of the standard consultant agreements for the following 10
firms: LP2A; 4LEAF, Inc.; SP2. Inc.; Precision Inspection Company, Inc.; CSG Consultants, Inc.; Jerry
Haag; Cannon Design Group; Jeff Gamboni; Paul Niemuth; LSA Associates. Inc.
BE IT FURTHER RESOLVED that the City Manager is authorized to obtain consultant
signatures accepting this amendment to Section 5 for the affected consultants and sign the contracts on
behalf of the City.
PASSED, APPROVED AND ADOPTED this 7tb day of September, 2004.
AYES: Councilmembers Oravetz, McCormick, Sbranti, Zika and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
K2/G/9-7-04/reso-CDconsultants (Item 4.10)
G:\Agendas\2004\cc contract alUlll1ded language 9·7 reso.doc
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
LINHART PETERSEN AND POWERS ASSOCIATES (LP2A)
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Linhart, Petersen and Powers Associates (LP2A) ("Consultant") as of , 20o_.
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. Consultant shall also conform to the
requirements of the Special Conditions attached as Exhibit C.
1.1 Term of Services. The term ofthîs 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, 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 pursua~t 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 receiv!ng 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 the hourly sum set forth in the
Payment Schedule attached as Exhibit B, notwithstanding any contrary indications that may be contained in
Consultant's proposal or the Scope of Services, for services to bl3 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
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 1 of 12
EXHIBIT A tv
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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.
2.1 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.
2.2 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similartederal or state taxes.
2.3 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.
2.4 Notification of Emplovees' Exceedance of 800 Hours of Work. Consultant shall
provide the City with written notice when the total number of hours of work by any
individual employee, agent, or subcontractor of Consultant in any fiscal year reaches or
exceeds 800 hours.
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, permit forms, and codes, as may be
reasonably necessary tor Consultant's use while consulting w'ith 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
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 2 of 12
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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.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance fqr 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 Liability 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
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 3 of 12
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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 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 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 Liabilitv 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
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 4 of 12
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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 policy must contain across 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:
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 ~t 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.
4.4.2 Verification of c.overa!:ie. 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.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 5 of 12
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4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
4.4.4 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverages, scope, limits, and forms of
such insurance are either not commercially available, or that the City's interests
are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and
obtain the approval of City for the self-insured retentions and deductibles before
beginning any of the services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles
or self-insured retentions with respect to City, its officers, employees, agents, and
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 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;
· 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.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 6 of 12
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Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall
indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers,
employees, agents, and volunteers from and against any and all 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
orin 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, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to prope'rty, 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 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.
6.1
6.2
STATUS OF.CONSULTANT.
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.
Waiver of Emplovee 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.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 7 of 12
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6.2 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 Governina 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 Reaulations. 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
basÎs 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.
SectionS.
TERMINATION AND MODIFICATION.
8.1
Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 8 of 12
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Consultant may cancel this Agreement upon ninety (90) days' written notice to City and
shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 AssiQnment and SubcontractinQ. 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 survÎve
the termination of this Agreement.
8.6 Options upon Breach bv 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;
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 9 of 12
Section 9.
9.2
9.3
Section 10
10.1
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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.
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.
Consultant's Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this Agreement for a minimum of three (3) years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
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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.
MISCELLANEOUS PROVISIONS.
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.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 10 of 12
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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 Assians. 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 ef 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 ef 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 itdid 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.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 11 of 12
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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 Building Official
("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:
Linhart Petersen Powers Associates
Attn: Kenneth C. Petersen
6088 Sunol Blvd, Suite 100
Pleasanton, CA 94566-7771
Any written notice to City shall be sent to:
City of Dublin
Attention: City Manager
100 Civic Plaza
Dublin, CA 94568
10.12 Intearation. This Agreement, including the Scope of Work (Exhibit A); Payment Schedule
(Exhibit B) and Special Provisions (Exhibit C) attached hereto represents the entire and
integrated agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral.
For: CITY OF DUBLIN
A Municipal Corporation
CONSULTANT
City
~
Kenneth C. Petersen
Principal
By:
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
G:ICONTRACTSIBuilding Contract revised for LP2A 2004.doc
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
6/23/04
Page 12 of 12
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EXHIBIT A
SCOPE OF SERVICES
1. BUILDING INSPECTION AND PLAN CHECK SERVICES. CONTRACTOR shall enforce
provisions of the CITY's Building, Electrical, Plumbing, Mechanical and Housing Codes; the City of
Dublin's Zoning Ordinance; and related State and local laws. CONTRACTOR shall make such
inspections and investigations as may be required to effect such enforcement and issue permits as
are required by the CITY's Ordinances and duly adopted policies. Such enforcement shall include
the duties related to the Building Official as set forth in the Dublin Municipal Code, and in the
performance of such work the CONTRACTOR shall do the following:
a. Plan Review. As directed by the Building Official, review plans prepared by or on
behalf of applicants for compliance with the applicable Federal, State, and City ordinances and
regulations. Contractor shall maintain a close liaison with City Planning Department Staff in
order to insure that appropriate requirements of the Zoning Ordinance are incorporated within
the plans submitted. Contractor shall coordinate the submittal of plans and receipt of
comments from other appropriate agencies having jurisdiction in such matters relative to
enforcement of fire codes, sanitation codes, health codes, hazardous material regulations, and
other regulatory agencies.
CONTRACTOR will strive to complete the first plan check of plans submitted within ten (10)
business days of receipt of complete plans from the applicant. The goal agreed to by
CONTRACTOR will be to complete 95% of all complete submittals within the 10 day period.
CITY recognizes that on large-scale projects this may not be possible and CONTRACTOR will
strive for a plan review period which does not exceed fifteen (15) days on large·scale projects.
In the event that workloads hinder the timely completion of Plan Reviews, upon Authorization
by the Building Official, CONTRACTOR may utilize off-site Plan Checking at CONTRACTOR'S
office. Performance of said work shall be in accordance with the hourly rate for such services
as stated in this agreement and only upon approval of CITY.
b. Buildinq Inspection. Provide building inspection services during the course of
construction of facilities to enforce compliance with the provisions of applicable laws including
City Ordinances and regulations set forth on the plans for which the permit is issued. In the
performance of such duties, CONTRACTOR shall provide prompt inspection for each project at
the completion of the various stages of construction to determine compliance. CONTRACTOR
shall provide City Manager and/or designee with relevant background information on all
assigned inspection personnel prior to assignment under this Agreement. CONTRACTOR
shall assign competent personnel whose background, experience, applicable certifications,
and demeanor demonstrate an ability to conduct inspections of the type required under this
Agreement, in accordance with CITY standards. City Manager and/or designee shall
determine acceptability of assigned inspection personnel. CONTRACTOR shall promptly
identify alternate personnel in the event of a request by City Manager and/or designee.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
Page 1 of3
Iw-'
In the event that CONTRACTOR requests a change in the assigned Inspection Personnel,
CONTRACTOR shall bear the full cost of any training required to familiarize the assigned
personnel with the current status of projects in the City. At the minimum this shall include a
one~week overlap with both inspectors. In the event that an assigned inspector is absent for a
period of greater than three concurrent workdays, the CONTRACTOR will provide a qualified
temporary replacement that is approved by the CITY.
c. Housinq Code Enforcement. Under the direction of the Building Official,
CONTRACTOR shall enforce the City Housing Code by investigation of complaints regarding
sub~standard housing conditions and when necessary, prepare cases for citation hearings,
criminal proceedings in municipal court, and/or civil abatement proceedings.
d. Presentation of Code Updates. In the event that the State of California adopts
revisions to any of the adopted codes during the term of this Agreement, CONTRACTOR shall
assist Building Official in preparing the staff report and necessary ordinances in advance of the
State mandatory implementation date.
e. Other Duties. CONTRACTOR shall perform other related activities as requested by
the City, including Building Official services. Fee for such services shall be negotiated on an
as needed basis as approved by the City Manager or his designee.
2. PROJECTIONS. On the annual basis and in conjunction with the City Budget process,
CONTRACTOR shall submit estimates of the projected: Staffing, Permit Fees, and Construction
Activity, which will affect the provision of services under this Agreement. Given the inability to
precisely predict building activity, these projections are for planning purposes only and there shall
not be a guaranteed number of hours of service under this Agreement.
3. REPORTING/PUBLIC INFORMATION. CONTRACTOR shall be responsible for coordination of
monthly and annual reports summarizing activities undertaken pursuant to this Agreement.
Reports shall be in a format and as mutually agreed by the City Manager and/or designee. As
required, CONTRACTOR may prepare staff reports for City Council, including but not limited to
review and adoption of related code updates. CONTRACTOR shall also assist with the
preparation of informational brochures designed to assist the public with the Building & Safety
process.
4. COLLECTION OF FEES. All fees collected from permit applicants in connection with the carrying
out of the functions set forth in this Agreement, shall be collected by the' CITY. If required,
CONTRACTOR shall submit as appropriate, information and recommendations on proposed City
adjustments to the adopted fee schedules.
5. LIMITATIONS (AVOIDANCE OF CONFLICTS). During the term of this Agreement,
CONTRACTOR shall not provide services to any client for a project, which requires any approval
from the CITY.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
Page 2 of 3
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Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit A
Page 3 of 3
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EXHIBIT B
PAYMENT SCHEDULE
A. CITY shall pay CONTRACTOR for services rendered in accordance with the hourly rates stated in
section B. CONTRACTOR shall submit invoices, not more often than once per month, based upon
the work completed. At the sole discretion of the CITY other payment schedules may be
considered. Invoice shall include an accounting of all hours by classification and task. The format
and documentation included on the invoice, shall be subject to approval by the City Manager
and/or designee.
B. HOURLY RATES:
The following rates include all reimbursable or indirect costs, including but not limited to a vehicle
and cell phones.
1. Commercial Inspector
(Includes knowledge and certification in,commercial
building systems including structural, mechanical,
plumbing, and electrical systems.)
$80.00
2. Building Inspectors
(Includes Inspection as well as any plan checking
of Residential and Non·Structural Commercial/
Industrial Plans.)
$70.00
3. Off·site and on-site Plan Checking
(As authorized by City Manager and/or designee.)
$83.00
C. The hourly rates shown in Section B above, shall be the total which the CITY shall pay for the
services to be rendered by CONTRACTOR pursuant to this Agreement. CITY shall not pay any
additional sum for any expense or cost whatsoever incurred by CONTRACTOR in rendering
services pursuant to this Agreement.
D. CITY shall make no payment for any extra, further or additional service pursuant to this Agreement
unless such extra service and the price therefor is agreed to in writing and authorized by the City
Manager and/or designee. .
E. Tho services to be provided under this Agreement may bc tcrmin::1ted v:ithout CJuoe Jt Jny point in
time in thc sole Jnd excluoive discretion of CITY. In this event, CITY shJII cOFApensate the
CONTR/\CTOR for all outstanding costs incurred JS of the date of written notice thereof ::md shall
terminato this Agreement. CONTRACTOR shall maintJin :Jdoquate logo :Jnd timosheets in ordcr to
vorify costs incurrcd to dJte.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit B
Page 1 of 2
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F. The CONTRACTOR is not authorized to perform any services or incur any costs whatsoever under
the terms of this Agreement until receipt of a fully executed copy of this Agreement.
G. ^ l::Ito Ch3FgO oqu31 to 1.5% ef tho delinquent amount '.viII be 3ddod overy month, starting the Hrct
d3Y ::If.tor 45 d3YS fFOm tho d3tc the City receives a complote ::Ind ::ICCur3to invoice for services. .
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A) - Exhibit B
Page 2 of 2
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EXHIBIT C
SPECIAL PROVISIONS
The following provisions are hereby incorporated in the Agreement by and between Linhart Petersen and
Powers Associates (LP2A) (CONTRACTOR) and City of Dublin (CITY):
ASSIGNED PERSONNEL/SUBCONTRACTORS.
The following terms and conditions are hereby agreed to by CONTRACTOR prior to the assignment of
personnel or use by CONTRACTOR of subcontractors.
a. Submittal to City Manaqer. The name, background and experience of any and every firm or
individual to which any work outlined in this Agreement is to be performed must be submitted
to the City Manager and/or designee for prior approval.
b. CONTRACTOR Liable for Work of Subcontractors. Approval by the City Manager of a
subcontractor shall not relieve CONTRACTOR of any liability for the work to be performed
pursuant to this Agreement, nor shall such approval 'infer any contractual relationship
between CITY and any subcontractor.
EMERGENCY OPERATIONS ASSISTANCE.
The following terms and conditions are hereby agreed to by CONTRACTOR in the event of a local or
regional emergency:
a. Report into the City of Dublin Emerqency Operations Center (E.O.C.), Contract personnel
will make a reasonable effort to report to the City of Dublin E.O.C. as soon as possible
following a local or regional emergency.
b. CONTRACTOR shall provide emerqency preparedness traininQ. All contract personnel
shall maintain at all times appropriate emergency training and certification, such as ATC~
20 Damage Assessment Training and Certification.
c. The CONTRACTOR shall make contract personnel and contractor resources available for
emerQ8ncy response at the same hourly rates and conditions specified in this contract.
d. The CONTRACTOR acknowledqes that em8rqenCy response work may require variations
in work hours and assiqnments.
Consulting Services Agreement between
City of Dublin and Linhart, Petersen and Powers Associates (LP2A)--Exhibit C
6/23/04
Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
4LEAF, INC.
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
4LEAF, Inc. ("Consultant") as of ¥; ,200~
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant
shàll 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. Consultant shall also conform to the
requirements of the Special Conditions attached as Exhibit C.
1.1 Term of SeÏ'Vioes. 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, first-class manner and shall conform to the
standards of quality normally observed by a person practicing in Consultant's profession.
1.3 Assianment of Personnel. Consultant shall assign only competent personnel to perform
services pgrsuant 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 the hourly sum set forth in the
Payment Schedule attached as Exhibit B, notwithstanding any contrary indications that may be contained in
Consultant's proposal or the Scope of Services, 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
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 1 of 12
EXHIBITB T[)
LJ,-rTi}(, J / (Y')~'-)\ J ¡ ¡
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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.
2.1 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.
2.2 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2,3 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.
2.4 Notification of Employees' Exceedance of 800 Hours of Work. Consultant shall
provide the City with written notice when the total number of hours of work by any
individual employee, agent, or subcontractor of Consultant in any fiscal year reaches or
exceeds 800 hours.
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, permit forms, and codes, 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
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 2 of 12
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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 perfonnance 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 Însurance shall be
submitted and made part of this Agreement prior to execution,
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Compensation Insurance and Employer's Liability Insurance shall be provided with limits of
not less than ONE MILLION DOLLARS ($1,000,000.00) 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 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
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 3 of 12
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activities contemplated under this Agreement, including the use of owned and non-
owned automobiles.
4.2.2 Minimum scope of coveraç¡e. 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 Rolicy:
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
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 4 of 12
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 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:
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 òf 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.
4.4.2 Verification of coverage. Prior to beginning any work under this Agreement,
Consultant shall fumish 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.
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 5 of 12
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.
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.
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 6 of 12
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Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall
indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers,
employees, agents, and volunteers from and against any and all 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 forwhich they could be held strictly liable, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
apply to any damages or claims for damages whether or not such insurance policies shall have been
determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
provisions of this Section and that it is a material element of consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
payment of any penalties and interest on such contributions, which would otherwise be the responsibility of
City.
Section 6.
6.1
6.2
STATUS OF CONSULTANT.
Independent Contractor. At all times during the term of this Agreement, Consultant shall
be an ind~pendent 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.
Waiver of Emplovee 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.
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 7 of 12
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6.2 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 Governina 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 Reaulations. 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 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.·
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 8 of 12
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Consultant may cancel this Agreement upon ninety (90) days' written notice to City and
shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 AssiQnment and SubcontractinQ. 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 Gontract 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 bv 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;
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 9 of 12
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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 atthe 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 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 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 prevailíng
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.
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 10 of 12
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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 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.
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page110f12
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10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
ínterview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Building Official
("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:
4Leaf, Inc.
Attention: Kevin Duggan
·-1-+561 DUDlln I::!lva., SuÎlc 200
lJubllll, CA t!4t>öt1
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Any written notice to City shall be sent to:
City of Dublin
Attention: City Manager
100 Civic Plaza
Dublin, CA 94568
10.12 Intearation. This Agreement, including the Scope of Work (Exhibit A); Payment Schedule
(Exhibit B) and Special Provisions (Exhibit C) attached hereto represents the entire and
integrated agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral.
For: CITY OF DUBLIN
A Municipal Corporation
CONSULTANT
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City
By:
Attest:
Kevin Duggan
President
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Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
G:\CONTRACTS\Building Master Contract revised for 4Leaf 2004.doc
Consulting Services Agreement between
City of Dublin and 4Leaf, Inc.
6/23/04
Page 12 of 12
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EXHIBIT A
SCOPE OF SERVICES
1. BUILDING INSPECTION AND PLAN CHECK SERVICES. CONTRACTOR shall enforce
provisions of the CITY's Building, Electrical, Plumbing, Mechanical and Housing Codes; the City of
Dublin's Zoning Ordinance; and related State and local laws. CONTRACTOR shall make such
inspections and investigations as may be required to effect such enforcement and issue permits as
are required by the CITY's Ordinances and duly adopted policies. Such enforcement shall include
the duties related to the Building Official as set forth in the Dublin Municipal Code, and in the
performance of such work the CONTRACTOR shall do the following:
a. Plan Review. As directed by the Building Official, review plans prepared by or on
behalf of applicants for compliance with the applicable Federal, State, and City ordinances and
regulations. Contractor shall maintain a close liaison with City Planning Department Staff in
order to insure that appropriate requirements of the Zoning Ordinance are incorporated within
the plans submitted. Contractor shall coordinate the submittal of plans and receipt of
comments from other appropriate agencies having jurisdiction in such matters relative to
enforcement of fire codes, sanitation codes, health codes, hazardous material regulations, and
other regulatory agencies.
CONTRACTOR will strive to complete the first plan check of plans submitted within ten (10)
business days of receipt of complete plans from the applicant. The goal agreed to by
CONTRACTOR will be to complete 95% of all complete submittals within the 10 day period.
CITY recognizes that on large~§cale projects this may not be possible and CONTRACTOR will
strive for a plan review period which does not exceed fifteen (15) days on large-scale projects.
In the event that workloads hinder the timely completion of Plan Reviews, upon Authorization
.' by the Building Official, CONTRACTOR may utilize off-site Plan Checking at CONTRACTOR'S
office. Performance of said work shall be in accordance with the hourly rate for such services
as stated in this agreement and only upon approval of CITY.
b. BuildinQ Inspection. Provide building inspection services during the course of
construction of facilities to enforce compliance with the provisions of applicable laws including
City Ordinances and regulations set forth on the plans for which the permit is issued. In the
performance of such duties, CONTRACTOR shall provide prompt inspection for each project at
the completion of the various stages of construction to determine compliance. CONTRACTOR
shall provide City Manager and/or designee with relevant background information on all
assigned inspection personnel prior to assignment under this Agreement. CONTRACTOR
shall assign competent personnel whose background, experience, applicable certifications,
and demeanor demonstrate an ability to conduct inspections of the type required under this
Agreement, in accordance with CITY standards. City Manager and/or designee shall
determine acceptability of assigned inspection personnel. CONTRACTOR shall promptly
identify alternate personnel in the event of a request by City Manager and/or designee.
Consulting Services Agreement between
City of City of Dublin and 4Leaf, Inc. Exhibit A
6/23/04
Page 1 of 2
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In the event that CONTRACTOR requests a change in the assigned Inspection Personnel,
CONTRACTOR shall bear the full cost of any training required to familiarize the assigned
personnel with the current status of projects in the City. At the minimum this shall include a
one-week overlap with both inspectors. In the event that an assigned inspector is absent for a
period of greater than three concurrent workdays, the CONTRACTOR will provide a qualified
temporary replacement that is approved by the CITY.
c. Housinq Code Enforcement. Under the direction of the Building Official,
CONTRACTOR shall enforce the City Housing Code by investigation of complaints regarding
sub-standard housing conditions and when necessary, prepare cases for citation hearings,
criminal proceedings in municipal court, and/or civil abatement proceedings.
d. Presentation of Code Updates. In the event that the State of California adopts
revisions to any of the adopted codes during the term of this Agreement, CONTRACTOR shall
assist Building Official in preparing the staff report and necessary ordinances in advance of the
State mandatory implementation date.
e. Other Duties. CONTRACTOR shall perform other related activities as requested by
the City, including Building Official services. Fee for such services shall be negotiated on an
as needed basis as approved by the City Manager or his designee.
2. PROJECTIONS. On the annual basis and in conjunction with the City Budget process,
CONTRACTOR shall submit estimates of the projected: Staffing, Permit Fees, and Construction
Activity, which will affect the provision of services under this Agreement. Given the inability to
precisely predict building activity, these projections are for planning purposes only and there shall
notbe a guaranteed number of hours of service under this Agreement.
3. REPORTING/PUBLIC INFORMATION. CONTRACTOR shall be responsible for coordination of
monthly and annual reports summarizing activities undertaken pursuant to this Agreement.
Reports shall be in a format and as mutually agreed by the City Manager and/or designee. As
required, CONTRACTOR may prepare staff reports for City Council, including but not limited to
review and adoption of related code updates. CONTRACTOR shall also assist with the
preparation of informational brochures designed to assist the public with the Building & Safety
process.
4. COLLECTION OF FEES. All fees collected from permit applicants in connection with the carrying
out of the functions set forth in this Agreement, shall be collected by the CITY. If required,
CONTRACTOR shall submit as appropriate, information and recommendations on proposed City
adjustments to the adopted fee schedules.
5. LIMITATIONS (AVOIDANCE OF CONFLICTS). During the term of this Agreement,
CONTRACTOR shall not provide services to any client for a project, which requires any approval
from the CITY.
Consulting Services Agreement between
City of City of Dublin and 4Leaf, Inc. Exhibit A
6/23/04
Page 2 of 2
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EXHIBIT B
PAYMENT SCHEDULE
A. CITY shall pay CONTRACTOR for services rendered in accordance with the hourly rates stated in
section B. CONTRACTOR shall submit invoices, not more often than once per month, based upon
the work completed. At the sole discretion of the CITY other payment schedules may be
considered. Invoice shall include an accounting of all hours by classification and task. The format
and documentation included on the invoice, shall be subject to approval by the City Manager
and/or designee.
8. HOURLY RATES:
The following rates include all reimbursable or indirect costs, including but not limited to a vehicle
and cell phones.
1. Commercial Inspector
(Includes knowledge and certification in commercial
building systems including structural, mechanical,
plumbing, and electrical systems.)
$80,00
2. Building Inspectors
(Includes Inspection as well as any plan checking
of Residential and Non-Structural Commercial/
Industrial Plans.)
$70,00
3. Off~site and on~site Plan Checking
(As authorized by City Manager and/or designee.)
$83.00
C. The hourly rates shown in Section B above, shall be the total which the CITY shall pay for the
services to be rendered by CONTRACTOR pursuant to this Agreement. CITY shall not pay any
additional sum for any expense or cost whatsoever incurred by CONTRACTOR in rendering
services pursuant to this Agreement.
D. CITY shall make no payment for any extra, further or additional service pursuant to this Agreement
unless such extra service and the price therefor is agreed to in writing and authorized by the City
Manager and/or designee.
E. The SOrviC8S to be provided under this ^greemont m::lY be termin::lted without C3use ::It any point in
time in the colo ::Ind exclusive discretion of CITY. In this event, CITY shall compens::Jto tho
CONTR!\CTOR for 311 outstanding costs incurred :JC of the d:Jte of written notice thereof ::md sh::J1I
termin3tethic ^groemont. CONTR/\CTOR shJII maint:Jin 3dequ::lto logG Jnd timeshoets in order to
'Jerify coste incurred to dJtc.
Consulting Services Agreement between
City of City of Dublin and 4Leaf, Inc, Exhibit B
6/23/04
Page 1 of 2
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F. The CONTRACTOR is not authorized to perform any services or incur any costs whatsoever under
the terms of this Agreement until receipt of a fully executed copy of this Agreement.
G. ^ late chJrge equJI to 1.5% of the delinquent amount will be added evory month, st::1rting tho firct
d::1Y ::1f.ter 45 days from tho d::1to the City receives ::1 complete ::md ::1ccurato invoice for servicec.
Consulting Services Agreement between
City of City of Dublin and 4Leaf, Inc. Exhibit B
6/23/04
Page 2 of 2
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EXHIBIT C
SPECIAL PROVISIONS
The following provisions are hereby incorporated in the Agreement by and between 4Leaf, Inc.
(CONTRACTOR) and City of Dublin (CITY):
ASSIGNED PERSONNEL/SUBCONTRACTORS.
The following terms and conditions are hereby agreed to by CONTRACTOR prior to the assignment of
personnel or use by CONTRACTOR of subcontractors,
a. Submittal to City Manaqer. The name, background and experience of any and every firm or
individual to which any work outlined in this Agreement is to be performed must be submitted
to the City Manager and/or designee for prior approval.
b. CONTRACTOR Liable for Work of Subcontractors. Approval by the City Manager of a
subcontractor shall not relieve CONTRACTOR of any liability for the work to be performed
pursuant to this Agreement, nor shall such approval infer any contractual relationship
between CITY and any subcontractor.
EMERGENCY OPERATIONS ASSISTANCE.
The following terms and conditions are hereby agreed to by CONTRACTOR in the event of a local or
regional emergency:
a. Report into the City of Dublin EmerQency Operations Center (E.Q,C.). Contract personnel
will make a reasonable effort to report to the City of Dublin E.O.C. as soon as possible
following a local or regional emergency.
b. CONTRACTOR shall provideemerqency preparedness traininq. All contract personnel
shall maintain at all times appropriate emergency training and certification, such as A TC-
20 Damage Assessment Training and Certification.
c. The CONTRACTOR shall make contract personnel and contractor resources available for
emerqency response at the same hourly rates and conditions specified in this contract.
d. The CONTRACTOR acknowledQes that emerqency response workmav require variations
in work hours and assiqnments.
Consulting Services Agreement between
City of City of Dublin and 4Leaf, Inc. Exhibit C
6/23/04
Page 1 of 1
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
P,RECISION INSPECTION COMPANY, INC.
\
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Precision Inspection Company, Inc. ("Consultant") as of , 200_.
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 confiict in or inconsistency between the terms
of this Agreement and Exhibit A, the Agreement shall prevail. Consultant shall also conform to the
requirements of the Special Conditions attached as Exhibit C.
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 inSection 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 perso.n practicing in Consultant's profession.
1.3 Assianment 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 the hourly sum set forth in the
Payment Schedule attached as Exhibit B, notwithstanding any contrary indications that may be contained in
Consultant's proposal or the Scope of Services, 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
Consulting Services Agreement between
City of Dublin and Precision Inspection Company, Inc.
6/23/04
Page 1 of 12
EXHIBIT C
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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.
2.1 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.
2.2 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.3 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shàll 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.
2.4 Notification of Employees' Exceedanceof 800 Hours of Work. Consultant shall
provide the City with written notice when the total number of hours of work by any
individual employee, agent, or subcontractor of Consultant in any fiscal year reaches or
exceeds 800 hours.
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, permit forms, and codes, 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
Consulting Services Agreement between
City of Dublin and Precision Inspection Company, Inc.
6/23/04
Page 2 of 12
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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.
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 Liability 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
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activities contemplated under this Agreement, including the use of owned and non-
owned automobiles.
4.2.2 Minimum scope of coveraÇle. 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:
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
Cityor 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 shari not be suspended, voided,
canceled by either party, reduced in coverage or in límits, 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 professionallíability insurance for
licensed professionals performing work pursuant to this Agreement in an amount notless
Consulting Services Agreement between
City of Dublín and Precision Inspection Company, Inc.
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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 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:
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.
4.4.2 Verification of coveraÇJe. 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.
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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.
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.
Consulting Services Agreement between
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Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall
indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers,
employees, agents, and volunteers from and against any and all 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, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
apply to any damages or claims for damages whether or not such insurance policies shall have been
determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
provisions of this Section and that it is a material element of consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public. Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
payment of any penalties and interest on such contributions, which would otherwise be the responsibility of
City.
Section 6.
6.1
6.2
STATUS OF CONSULTANT.
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.
Waiver of Emplovee 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.
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Consulting Services Agreement between
City of Dublin and Precision Inspection Company, Inc.
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6.2 Consultant No Agent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
7.3 other Governmental ReQulations. 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 Îs 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, attheir 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 Licensesfrom 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.
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Consultant may cancel this Agreement upon ninety (90) days' written notice to City and
shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assh:¡nment 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 bv 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;
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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 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 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.
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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 Assians. 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 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.
Consulting Services Agreement between
City of Dublin and Precision Inspection Company, Inc.
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10.8 Solicitation. Consultant agrees notto 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 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:
Precision Inspection Company, Inc.
Attention: Kelly Hislop
1247 Main Street
Newman, CA 95360
Any written notice to City shall be sent to:
City of Dublin
Attention: City Manager
100 Civic Plaza
Dublin, CA 94568
10.12 InteQration. This Agreement, including the Scope of Work (Exhibit A); Payment Schedule
(Exhibit B) and Special Provisions (Exhibit C) attached hereto represents the entire and
integrated agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral.
For: CITY OF DUBLIN
A Municipal Corporation
CONSULTANT
City
By:
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
G:\CONTRACTSIBuilding Master Contract revised for Precision 2DD4.doc
Consulting Services Agreement between
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EXHIBIT A
SCOPE OF SERVICES
1. BUILDING INSPECTION AND PLAN CHECK SERVICES. CONTRACTOR shall enforce
provisions of the CITY's Building, Electrical, Plumbing, Mechanical and Housing Codes; the City of
Dublin's Zoning Ordinance; and related State and local laws. CONTRACTOR shall make such
inspections and investigations as may be required to effect such enforcement and issue permits as
are required by the CITY's Ordinances and duly adopted policies. Such enforcement shall include
the duties related to the Building Official as set forth in the Dublin Municipal Code, and in the
performance of such work the CONTRACTOR shall do the following:
a. Plan Review. As directed by the Building Official, review plans prepared by or on
behalf of applicants for compliance with the applicable Federal, State, and City ordinances and
regulations. Contractor shall maintain a close liaison with City Planning Department Staff in
order to insure that appropriate requirements of the Zoning Ordinance are incorporated within
the plans submitted. Contractor shall coordinate the submittal of plans and receipt of
comments from other appropriate agencies having jurisdiction in such matters relative to
enforcement of fire codes, sanitation codes, health codes, hazardous material regulations, and
other regulatory agencies.
CONTRACTOR will strive to complete the first plan check of plans submitted within ten (10)
business daysof receipt of complete plans from the applicant. The goal agreed to by
CONTRACTOR will be to complete 95% of all complete submittals within the 10 day period.
CITY recognizes that on large-scale projects this may not be possible and CONTRACTOR will
strive for a plan review period which does not exceed fifteen (15) days on large-scale projects.
In the event that workloads hinder the timely completion of Pian Reviews, upon Authorization
by the Building Official, CONTRACTOR may utilize off-site Plan Checking at CONTRACTOR'S
office, Performance of said work shall be in accordance with the hourly rate for such services
as stated in this agreement and only upon approval of CITY.
b. Buildinq Inspection. Provide building inspection services during the course of
construction of facilities to enforce compliance with the provisions of applicable laws including
City Ordinances and regulations set forth on the plans for which the permit is issued. In the
performance of such duties, CONTRACTOR shall provide prompt inspection for each project at
the completion of the various stages of construction to determine compliance. CONTRACTOR
shall provide City Manager and/or designee with relevant background information on all
assigned inspection personnel prior to assignment under this Agreement. CONTRACTOR
shall assign competent personnel whose background, experience, applicable certifications,
and demeanor demonstrate an ability to conduct inspections of the type required under this
Agreement, in accordance with CITY standards. City Manager and/or designee shall
determine acceptability of assigned inspection personnel. CONTRACTOR shall promptly
identify alternate personnel in the event of a request by City Manager and/or designee.
Consulting Services Agreement between
City of Dublin and Precision Inspection Company, Inc. - Exhibit A
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In the event that CONTRACTOR requests a change in the assigned Inspection Personnel,
CONTRACTOR shall bear the full cost of any training required to familiarize the assigned
personnel with the current status of projects in the City. At the minimum this shall include a
one-week overlap with both inspectors. In the eventthat an assigned inspector is absent for a
period of greater than three concurrent workdays, the CONTRACTOR will provide a qualified
temporary replacement that is approved by the CITY.
c. Housino Code Enforcement. Under the direction of the Building Official,
CONTRACTOR shall enforce the City Housing Code by investigation of complaints regarding
sub~standard housing conditions and when necessary, prepare cases for citation hearings,
criminal proceedings in municipal court, and/or civil abatement proceedings.
d. Presentation of Code Updates. In the event that the State of California adopts
revisions to any of the adopted codes during the term of this Agreement, CONTRACTOR shall
assist Building Official in preparing the staff report and necessary ordinances in advance of the
State mandatory implementation date.
e. Other Duties. CONTRACTOR shall perform other related activities as requested by
the City, including Building Official services. Fee for such services shall be negotiated on an
as needed basis as approved by the City Manager or his designee.
2. PROJECTIONS. On the annual basis and in conjunction with the City Budget process,
CONTRACTOR shall submit estimates of the projected: Staffing, Permit Fees, and Construction
Activity, which will affect the provision of services under this Agreement. Given the inability to
precisely predict building activity, these projections are for planning purposes only and there shall
not be a guaranteed number of hours of service underthis Agreement.
3. REPORTING/PUBLIC INFORMATION. CONTRACTOR shall be responsible for coordination of
monthly and annual reports summarizing activities undertaken pursuant to this Agreement.
Reports shall be in a format and as mutually agreed by the City Manager and/or designee. As
required, CONTRACTOR may prepare staff reports for City Council, including but not limited to
review and adoption of related code updates. CONTRACTOR shall also assist with the
preparation of informational brochures designed to assist the public with the Building & Safety
process.
4. COLLECTION OF FEES. All fees collected from permit applicants in connection with the carrying
out of the functions set forth in this Agreement, shall be collected by the CITY. If required,
CONTRACTOR shall submit as appropriate, information and recommendations on proposed City
adjustments to the adopted fee schedules.
6. LIMITATIONS (AVOIDANCE OF CONFLICTS). During the term of this Agreement,
CONTRACTOR shall not provide services to any client for a project, which requires any approval
from the CITY.
Consulting Services Agreement between
City of Dublin and Precision Inspection Company, Inc. ~ Exhibit A
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EXHIBIT B
ÞA YMENT SCHEDULE
A. CITY shall pay CONTRACTOR for services rendered in accordance with the hourly rates stated in
section B. CONTRACTOR shall submit invoices, not more often than once per month, based upon
the work completed. At the sole discretion of the CITY other payment schedules may be
considered. Invoice shall include an accounting of all hours by classification and task. The format
and documentation included on the invoice, shall be subject to approval by the City Manager
and/or designee.
B. HOURLY RATES:
The following rates include all reimbursable or indirect costs, including but not limited to a vehicle
and cell phones.
1. Commercial Inspector
(Includes knowledge and certification in commercial
building systems including structural, mechanical,
plumbing, and electrical systems.)
$80.00
2. Building Inspectors
(Includes Inspection as well as any plan checking
of Residential and Non·Structural Commercial/
Industrial Plans.)
$70.00
3. Off-site and on-site Plan Checking
(As authorized by City Manager and/or designee.)
$83.00
C. The hourly rates shown in Section B above, shall be the total which the CITY shall pay for the
services to be rendered by CONTRACTOR pursuant to this Agreement. CITY shall not pay any
additional sum for any expense or cost whatsoever incurred by CONTRACTOR in rendering
services pursuant to this Agreement.
D. CITY shall make no payment for any extra, further or additional service pursuant to this Agreement
unless such extra service and the price therefor is agreed to in writing and authorized by the City
Manager and/or designee.
E. The cervices to be providod undor this Agreement m8Y be termin8tod without cauce 3t any point in
time in tho solo :md oxclueivo discretion of CITY. In this event, CITY shall compom:8te the
CONTR,^.CTOR for all outstanding costs incurred :JS of the d:Jto of written notice thereof 8nd sh:JII
terminate this Agreement. CONTRACTOR sh811 maint:Jin :Jdoqu:Jtc loge ::md timœhoets in ordcr to
vority coete incurred to d8to.
Consulting Services Agreement between
City of Dublin and Precision Inspection Company, Inc. - Exhibit B
6/23/04
Page 1 of 2
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F. The CONTRACTOR is not authorized to perform any servÎces or incur any costs whatsoever under
the terms of this Agreement until receipt of a fully executed copy of this Agreement.
G. ^ late chJrge equJI to 1.5% of the delinquent Jmount '.viii be Jdded 8'/Sry month, st::1rting the first
day after45 days fr-om the date the City roceivec a complete and accurate invoice for services.
Consulting Services Agreement between
City of Dublin and Precision Inspection Company, Inc. - Exhibit B
6/23/04
Page 2 of 2
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EXHIBIT C
SPECIAL PROVISIONS
The following provisions are hereby incorporated in the Agreement by and between Precision Inspection
Company, Inc. (CONTRACTOR) and City of Dublin (CITY):
ASSIGNED PERSONNEL/SUBCONTRACTORS.
The following terms and conditions are hereby agreed to by CONTRACTOR prior to the assignment of
personnel or use by CONTRACTOR of subcontractors.
a. Submittal to City Manaqer. The name, background and experience of any and every firm or
individual to which any work outlined in this Agreement is to be performed must be submitted
to the City Manager and/or designee for prior approval.
b. CONTRACTOR Liable for Work of Subcontractors. Approval by the City Manager of a
subcontractor shall not relieve CONTRACTOR of any liability for the work to be performed
pursuant to this Agreement, nor shall such approval infer any contractual relationship
between CITY and any subcontractor. .
EMERGENCY OPERATIONS ASSISTANCE.
The following terms and conditions are hereby agreed to by CONTRACTOR in the event of a local or
regional emergency:
a. Report into the City of Dublin Emerqency Operations Center (E.O.C.), Contract personnel
will make a reasonable effort to report to the City of Dublin E.O.C. as soon as possible
following a local or regional emergency.
b. CONTRACTOR shall provide emerQencv preparedness traininQ. All contract personnel
shall maintain at all times appropriate emergency training and certification, such as ATC-
20 Damage Assessment Training and Certification.
c. The CONTRACTOR shall make contract personnel and contractor resources available for
emerqency response at the same hourly rates and conditions specified in this contract.
d. The CONTRACTOR acknowledqes thatemerqency response work may require variations
in work hours and assiqnments.
Consulting Services Agreement between
City of Dublin and Precision Inspection Company, Inc. - Exhibit C
6/23/04
Page 1 of 1
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
CSG 'CONSULTANTS, INC.
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
CSG Consultants, Inc. ("Consultant") as of , 200_.
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. Consultant shall also conform to the
requirements of the Special Conditions attached as Exhibit C.
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, first-class manner and shall conform to the
standards of quality normally observed by a person practicing in Consultant's profession.
1.3
Assiqnment 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.
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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 the hourly sum set forth in the
Payment Schedule attached as Exhibit B, notwithstanding any contrary indications that may be contained in
Consultant's proposal or the Scope of Services, 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 amountof 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
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
Page 1 of 12
EXHiBIT J) -ft)
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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.
2.1 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.
2.2 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.3 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.
2.4 Notification of Employees' Exceedance of 800 Hours of Work. Consultant shall
provide the City with written notice when the total number of hours of work by any
individual employee, agent, or subcontractor of Consultant in any fiscal year reaches or
exceeds 800 hours.
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, permit forms, and codes, 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
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
Page 2 of 12
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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.
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 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
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc,
6/23/04
Page 3 of 12
activities contemplated under this Agreement, including the use of owned and non~
owned automobiles.
4.2.2 Minimum scope of coveraae. 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:
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
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
Page 4 of 12
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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 policy must contain across 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:
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 Reauirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coveraQe. 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.
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
Page 5 of 12
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.
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 CoveraQe. In the event that any coverage required by
this section is reduced, limited, Oi 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
'<C', 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.
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
Page 6 of 12
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Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall
indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers,
employees, agents, and volunteers from and against any and all 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, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
apply to any damages or claims for damages whether or not such insurance policies shall have been
determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
provisions of this Section and that it is a material element of consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
payment of any penalties and interest on such contributions, which would otherwise be the responsibility of
City.
Section 6.
6.1
6.2
STATUS OF CONSULTANT.
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.
Waiver of Emplovee 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.
6/23/04
Page 7 of 12
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
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6.2 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 Governina 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 Reaulations. 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 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.
Consulting ServÎces Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
Page 8 of 12
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Consultant may cancel this Agreement upon ninety (90) days' written notice to City and
shall include in such notice the reasons forcancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assianment and SubcontractinQ. 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 mêY 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 bv 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;
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
Page 9 of 12
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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 Consultantpursuant 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 servÎces or expenditures and disbursements charged
to the City under this Agreement for a minimum of three (3) years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of
the City. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the
Agreement shall be subject to the examination and audit of the State Auditor, at the
request of City or as part of any audit of the City, for a period of three (3) years after final
payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to which
that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose.
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
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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. Thé 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 Assiqns. 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 Góvernment Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be
entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any
sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of Government Code § 1090 and, if
applicable, will be disqualified from holding public office in the State of California.
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
Page 11 of 12
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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 Building Official
("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:
CSG Consultants, Inc.
Attention: Richard Mao
231 Old Bernal Road, Suite 7
Pleasanton, CA 94566
Any written notice to City shall be sent to:
City of Dublin
Attention: City Manager
100 Civic Plaza
Dublin, CA 94568
10.12 Inteqration. This Agreement, including the Scope of Work (Exhibit A); Payment Schedule
(Exhibit B) and Special Provisions (Exhibit C) attached hereto represents the entire and
integrated agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral.
For: CITY OF DUBLIN
A Municipal Corporation
CONSULTANT
City
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Richard Mao, Prinicipal
By:
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
G:\CONTRACTS\Building Master Contract revised for CSG 20D4.doc
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc.
6/23/04
Page 12 of 12
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EXHIBIT A
SCOPE OF SERVICES
1. BUILDING INSPECTION AND PLAN CHECK SERVICES. CONTRACTOR shall enforce
provisions of the CITY's Building, Electrical, Plumbing, Mechanical and Housing Codes; the City of
Dublin's Zoning Ordinance; and related State and local laws. CONTRACTOR shall make such
inspections and investigations as may be required to effect such enforcement and issue permits as
are required by the CITY's Ordinances and duly adopted policies. Such enforcement shall include
the duties related to the Building Official as set forth in the Dublin Municipal Code, and in the
performance of such work the CONTRACTOR shall do the following:
a. Plan Review. As directed by the Building Official, review plans prepared by or on
behalf of applicants for compliance with the applicable Federal, State, and City ordinances and
regulations. Contractor shall maintain a close liaison with City Planning Department Staff in
order to insure that appropriate requirements of the Zoning Ordinance are incorporated within
the plans submitted. Contractor shall coordinate the submittal of plans and receipt of
comments from other appropriate agencies having jurisdiction in such matters relative to
enforcement of fire codes, sanitation codes, health codes, hazardous material regulations, and
other regulatory agencies.
CONTRACTOR will strive to complete the first plan check of plans submitted within ten (10)
business days of receipt of complete plans from the applicant. The goal agreed to by
CONTRACTOR will be to complete 95% of all complete submittals within the 10 day period.
CITY recognizes that on largeøscale projects this may not be possible and CONTRACTOR will
strive for a plan review period which does not exceed fifteen (15) days on large-scale projects.
In the event that workloads hinder the timely completion of Plan Reviews, upon Authorization
by the Building Official, CONTRACTOR may utilize offøsite Plan Checking at CONTRACTOR'S
office. Performance of said work shall be in accordance with the hourly rate for such services
as stated in this agreement and only upon approval of CITY.
, .
b. Buildinq Inspection. Provide building inspection services during the course of
construction of facilities to enforce compliance with the provisions of applícable laws including
City Ordinances and regulations set forth on the plans for which the permit is issued. In the
performance of such duties, CONTRACTOR shall provide prompt inspection for each project at
the completion of the various stages of construction to determine compliance. CONTRACTOR
shall provide City Manager and/or designee with relevant background information on all
assigned inspection personnel prior to assignment under this Agreement. CONTRACTOR
shall assign competent personnel whose background, experience, applicable certifications,
and demeanor demonstrate an ability to conduct inspections of the type required under this
Agreement, in accordance with CITY standards. City Manager and/or designee shall
determine acceptability of assÎgned inspection personnel. CONTRACTOR shall promptly
identify alternate personnel ìn the event of a request by City Manager and/or designee.
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc. ø Exhibit A
6/23/04
Page 1 of 2
/'"'"~" / .-? ::,J .
In the event that CONTRACTOR requests a change in the assigned Inspection Personnel,
CONTRACTOR shall bear the full cost of any training required to familiarize the assigned
personnel with the current status of projects in the City. At the minimum this shall include a
one-week overlap with both inspectors. In the event that an assigned inspector is absent for a
period of greater than three concurrent workdays, the CONTRACTOR will provide a qualified
temporary replacement that is approved by the CITY.
c. Housino Code Enforcement. Under the direction of the Building Official,
CONTRACTOR shall enforce the City Housing Code by investigation of complaints regarding
sub-standard housing conditions and when necessary, prepare cases for citation hearings,
criminal proceedings in municipal court, and/or civil abatement proceedings.
d. Presentation of Code Updates. In the event that the State of California adopts
revisions to any of the adopted codes during the term of this Agreement, CONTRACTOR shall
assist Building Official in preparing the staff report and necessary ordinances in advance of the
State mandatory implementation date.
e. Other Duties. CONTRACTOR shall perform other related activities as requested by
the City, including Building Official services. Fee for such services shall be negotiated on an
as needed basis as approved by the City Manager or his designee.
2. PROJECTIONS. On the annual basis and in conjunction with the City Budget process,
CONTRACTOR shall submit estimates of the projected: Staffing, Permit Fees, and Construction
Activity, which will affect the provision of services under this Agreement. Given the inability to
precisely predict building activity, these projections are for planning purposes only and there shall
not be a guaranteed number of hours of service under this Agreement.
3. REPORTING/PUBLIC INFORMATION. CONTRACTOR shall be responsible for coordination of
monthly and annual reports summarizing activities undertaken pursuant to this Agreement.
Reports shall be in a format and as mutually agreed by the City Manager and/or designee. As
required, CONTRACTOR may prepare staff reports for City Council, including but not limited to
review and adoption of related code updates. CONTRACTOR shall also assist with the
preparation of informational brochures designed to assist the public with the Building & Safety
process.
4. COLLECTION OF FEES. All fees collected from permit applicants in connection with the carrying
out of the functions set forth in this Agreement, shall be collected by the CITY. If required,
CONTRACTOR shall submit as appropriate, information and recommendations on proposed City
adjustments to the adopted fee schedules.
5. LIMITATIONS (AVOIDANCE OF CONFLICTS). During the term of this Agreement,
CONTRACTOR shall not provide services to any client for a project, which requires any approval
from the CITY.
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc. - Exhibit A
6/23/04
Page 2 of 2
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EXHIBIT B
PAYMENT SCHEDULE
A CITY shall pay CONTRACTOR for services rendered in accordance with the hourly rates stated in
section B. CONTRACTOR shall submit invoices, not more often than once per month, based upon
the work completed. At the sole discretion of the CITY other payment schedules may be
considered. Invoice shall include an accounting of all hours by classification and task. The format
and documentation included on the invoice, shall be subject to approval by the City Manager
and/or designee.
B. HOURLY RATES:
The following rates include all reimbursable or indirect costs, including but not limited to a vehicle
and cell phones.
1. Commercial Inspector
(Includes knowledge and certification in commercial
building systems including structural, mechanical,
plumbing, and electrical systems.)
$80.00
2. Building Inspectors
(Includes Inspection as well as any plan checking
of Residential and Non-Structural Commercial/
Industrial Plans.)
$70.00
3. Off-site and on-site Plan Checking
(As authorized by City Manager and/or designee.)
$83.00
C. The hourly rates shown in Section B above, shall be the total which the CITY shall pay for the
services to be rendered by CONTRACTOR pursuant to this Agreement. CITY shall not pay any
additional sum for any expense or cost whatsoever incurred by CONTRACTOR in rendering
services pursuant to this Agreement.
D. CITY shall make no payment for any extra, further or additional service pursuant to this Agreement
unless such extra service and the price therefor is agreed to in writing and authorized by the City
Manager and/or designee.
E. The services to be provided l:Indor this Agreement may be termin::Üod without c:Jusc at any point in
time in tho sole and oxclusi'Je discretion of CITY. In this event, CITY shall compensate the
CONTR\CTOR kJr all outstanding costs incurred :JS of the date of written notice thereof and sh::1I1
terminate this Agreement. CO~JTRACTOR sh:J1I rFI:Jintain adequate loge ::md tiFnosheets in ordor to
verify costs incurred to date.
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc. - Exhibit B
6/23/04
Page 1 of 2
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F. The CONTRACTOR is not authorized to perform any services or incur any costs whatsoever under
the terms of this Agreement until receipt of a fully executed copy of this Agreement.
G. ^ 13te ch3rge equ31 to 1.5% of the delinquent 3mOI:Jnt will be added every month, starting the first
day aftcr 45 d:JYs from the d:Jte the City receives :J complete and accurate invoice fer services.
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc. - Exhibit B
6/23/04
Page 2 of 2
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EXHIBIT C
SPECIAL PROVISIONS
The following provisions are hereby incorporated in the Agreement by and between CSG Consultants, Inc.
(CONTRACTOR) and City of Dublin (CITY):
ASSIGNED PERSONNEL/SUBCONTRACTORS.
The following terms and conditions are hereby agreed to by CONTRACTOR prior to the assignment of
personnel or use by CONTRACTOR of subcontractors.
a. Submittal to City Manaqer. The name, background and experience of any and every firm or
individual to which any work outlined in this Agreement is to be performed must be submitted
to the City Manager and/or designee for prior approval.
b. CONTRACTOR Liable for Work of Subcontractors. Approval by the City Manager of a
subcontractor shall not relieve CONTRACTOR of any liability for the work to be performed
pursuant to this Agreement, nor shall such approval infer any contractual relationship
between CITY and any subcontractor.
EMERGENCY OPERATIONS ASSISTANCE.
The following terms and conditions are hereby agreed to by CONTRACTOR În the event of a local or
regional emergency:
a. Report into the City of Dublin Emerqency Operatíons Center (E.O.C.). Contract personnel
will make a reasonable effort to report to the City of Dublin E.O.C. as soon as possible
following a local or regional emergency.
b. CONTRACTOR shall provide emerqency preparedness traininQ. All contract personnel
shall maintain at all times appropriate emergency training and certification, such as A TCp
20 Damage Assessment Training and Certification.
c. The CONTRACTOR shall make contract personnel and contractor resources available for
emerqency response at the same hourly rates and conditions specified in this contract.
d. The CONTRACTOR acknowledQes that emerQency response work may require variations
in work hours and assiQnments.
Consulting Services Agreement between
City of Dublin and CSG Consultants, Inc. - Exhibit C
6/23/04
Page 1 of 1
72 ^ 1""1<':'"
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
STEVENSON PORTO AND PIERCE, INC.
ON~CALL CONTRACT FOR PLANNING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Stevenson Porto Pierce, Inc. (SP2) ("Consultant") as of , 200~.
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 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, first-class manner and shall conform to the
standards of quality normally observed by a person practicing in Consultant's profession.
1.3 Assianment 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 shah, 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 the hourly sum set forth in
Exhibit 8, 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 Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1, 2004
Page 1 of 12
EXHIBIT E +-0
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Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
· Serial identifications of progress bills; Le., 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 (July 1 through June 30th);
· The Consultant's signature.
2.2 Monthly Payment. 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 Deleted.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoÎce 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.
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1, 2004
Page 2 of 12
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2.5 Hourlv Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the following fee schedule:
2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate
and not paid separately.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, thè 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.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost and expense, provide all facilities and equipment that may be necessary to perform the services
required by this Agreement. City shall make available to Consultant only the facilities and equipment listed
in this section, and only under the terms and conditions set forth herein.
City may furnish physical facilities such as desks, telephone service, 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.
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.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1, 2004
Page 3 of 12
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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 aprogram 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 Liability 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 coveraae. 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. 1173)
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:
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
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1, 2004
Page 4 of 12
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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 orin limits, except after
thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City.
4.3 All Policies Reauirements.
4.3.1 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.
4.3.2 Verification of coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish City with certificates of insurance and with original
endorsements effecting coverage required herein. The certificates and
endorsements for each insurance policy are to be signed by a person authorized
by that insurer to bind coverage on its behalf. The City reserves the right to
require complete, certified copies of all required insurance policies, at any time.
4.3.3 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.
4.3.4 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverages, scope, limits, and forms of
such insurance are either not commercially available, or that the City's interests
are otherwise fully protected.
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1, 2004
Page 5 of 12
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4.3.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and
obtain the approval of City for the self-insured retentions and deductibles before
beginning any of the services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles
or self-insured retentions with respect to City, its officers, employees, agents, and
volunteers. The Contract Administrator may condition approval of an increase in
deductible 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.
4.3.6 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.
4.4 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 selected by the City, 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, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
officers, employees, agents, or 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
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit 8
July 1,2004
Page 6 of 12
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violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
apply to any damages or claims for damages whether or not such insurance policies shall have been
determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
provisions of this Section and that it is a material element of consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
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 AQent. 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.
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7.1 Governina 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.
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1,2004
Page 7 of 12
7(~i" ¡"72:
7.3 Other Governmental Requlations. 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 theirrespective 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 provisior)s 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.
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1, 2004
Page 8 of 12
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8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assianment and Subcontractina. 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 bv Consultant. If Consultant materially breaches any of the terms
of this Agr~ement, 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.
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1,2004
Page 9 of 12.
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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 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 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 provisions 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 Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1, 2004
Page 10 of 12
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 Assians. 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 Recvcled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it Îs available at equal or
less cost than virgin paper.
10.7 Conflict of Interest. Consultant may sewe other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place
Consultant in a "conflict of interest," as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be
entitled to any compensation for sewices periormed 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 Community
Development Director ("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 Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1,2004
Page 11 of 12
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Stevenson Porto Pierce, Inc.
Attn: Michael Porto
18195 McDurmott East, Suite D
Irvine, CA 92614
Any written notice to City shall be sent to:
City of Dublin
Attn: City Manager
100 Civic Plaza
Dublin, CA 94568
10.12 Inte~ration. 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.
For: CITY OF DUBLIN
A Municipal Corporation
CONSULTANT
City
~~
Michael Porto, Principal
----,.
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
G:\CONTRACTSIMasters revised in 2004\On-Call Master Agreement with SP2.doc
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1, 2004
Page 12 of 12
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EXHIBIT A
SCOPE OF SERVICES
Provision of planning and other development services including, but not limited to, environmental,
architectural, landscape architectural and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
Said services shall be performed at the direction of the Community Development Director on an as·needed
basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Payment Schedule)
Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit A
July 1, 2004
Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed $90.00 per hour.
Consultant shall not bill for any reimbursable items.
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Consulting Services Agreement between
City of Dublin and Stevenson Porto and Pierce, Inc. (SP2) - Exhibit B
July 1, 2004
Page 1 of 1
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CONSULTING SERVICES AGREEMENT' BETWEEN
THE CITY OF DUBLIN AND
JERRY HAAG
ON-CALL CONTRACT FOR PLANNING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Jerry Haag ("Consultant") as of 200_.
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 Agreement is otherwise terminated, as provided for
in Section 8.
1.2 Standard of Performance. Consultant shall periorm 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 Assiqnment of Personnel. Consultant shall assign only competent personnel to periorm
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,
Consültant 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 periormance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of periormance
provided in Section 1.1 above and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in
Exhibit 8, notwithstanding any contrary indications that may be contained in Consultant's proposal, for
services to be periormed 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 periormed by more than one person.
Consulting Services Agreement between
City of Dublin and Jerry Haag - Exhibit A
July 1 j 2004
Page 1 of 12
EXHIBIT F -10
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Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
· Serial identifications of progress bills; Le., 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 (July 1 through June 30th);
· The Consultant's signature.
2.2 Monthly Payment. 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 Deleted.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
Consulting Services Agreement between
City of Dublin and Jerry Haag - Exhibit A
July 1,2004
Page 2 of 12
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2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the following fee schedule:
2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate
and not paid separately.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost 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 may furnish physical facilities such as desks, telephone service, 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. '
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.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Consulting Services Agreement between
City of Dublin and Jerry Haag - Exhibit A
July 1,2004
Page 3 of 12
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 Liability 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 coveraae. 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. 1173)
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:
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
Consulting Services Agreement between
City of Dublin and Jerry Haag· Exhibit A
July 1, 2004
Page 4 of 12
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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 speciallimitatíons 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 All Policies Reauirements.
4.3.1 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.
4.3.2 Vei'ificatiol1' of coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish City with certificates of insurance and with original
endorsements effecting coverage required herein. The certificates and
endorsements for each insurance policy are to be signed by a person authorized
by that insurer to bind coverage on its behalf. The City reserves the right to
require complete, certified copies of all required insurance policies, at any time.
4.3.3 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.
4.3.4 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverages, scope, limits, and forms of
such insurance are either not commercially available, or that the City's interests
are otherwise fully protected.
Consulting Services Agreement between
City of Dublin and Jerry Haag - Exhibit A
July 1, 2004
Page 5 of 12
4.3.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and
obtain the approval of City for the self·insured retentions and deductibles before
beginning any of the services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles
or self-insured retentions with respect to City, its officers, employees, agents, and
volunteers. The Contract Administrator may condition approval of an increase in
deductible 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.
4.3.6 Notice of Reduction in Covera~e. 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.
4.4 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 selected by the City, 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, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
officers, employees, agents, or 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
Consulting Services Agreement between
City of Dublin and Jerry Haag - Exhibit A
July 1, 2004
Page 60f 12
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violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
apply to any damages or claims for damages whether or not such insurance policies shall have been
determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
provisions of this Section and that it is a material element of consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributi()ns
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 Governina 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.
Consulting Services Agreement between
City of Dublin and Jerry Haag" Exhibit A
July ,1 , 2004
Page 7 of 12
7.3 Other Governmental Reaulations. To the extent that this Agreement may be funded by
fiscal assistance from another govemmental 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 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.
Consulting Services Agreement between
City of Dublin and Jerry Haag· Exhibit A
July 1, 2004
Page 8 of 12
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8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assianment and Subcontractina. 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 bv 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.
Consulting Services Agreement between
City of Dublin and Jerry Haag - Exhibit A
July 1, 2004
Page 9 of 12
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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 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 Severabilitv. 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
Consulting Services Agreement between
City of Dublin and Jerry Haag - Exhibit A
July 1, 2004
Page 1 0 of 12
75
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 Recvcled 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 perlormed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be
entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any
sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of Government Code § 1090 and, if
applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Community
Development Director ("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 Jerry Haag· Exhibit A
July 1,2004
Page 11 of 12
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Jerry Haag
2029 University Ave.
Berkeley, CA 94704
Any written notice to City shall be sent to:
City of Dublin
Attn: City Manager
100 Civic Plaza
Dublin, CA 94568
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.
For: CITY OF DUBLIN
A Municipal Coporation
CONSULTANT
City
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[N TITLE] I ~
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
G:\CONTRACTS\On·Call Contract Agreement with Jerry Haag.doc
Consulting Services Agreement between
City of Dublin and Jerry Haag - Exhibit A
July 1, 2004
Page 12of12
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EXHIBIT A
SCOPE OF SERVICES
Provision of planning and other development services including, but not limited to, environmental,
architectural, landscape architectural and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
Said services shall be pertormed at the direction of the Community Development Director on an as-needed
basis.
Adiustment of Rates
Hourly rates shall be those set forth in Exhibit B (Payment Schedule)
Consulting Services Agreement between
City of Dublin and Jerry Haag - Exhibit A
July 1, 2004
Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed $90.00 per hour.
Consultant shall not bill for any reimbursable items.
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Consulting SeNices Agreement between
City of Dublin and Jerry Haag· Exhibit B
July 1, 2004
Page 1 of 1
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
CANNON DESIGN GROUP
ON~CALL CONTRACT FOR PLANNING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Larry Cannon ("Consultant") as of , 200_.
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 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, first-class manner and shall conform to the
standards of quality normally observed by a person practicing in Consultant's profession.
1.3 Assiqnment 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 the hourly sum 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 Cannon Design Group
July 1,2004
Page 1 of 13
EXHI»!!~~~~_ J
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Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
· Serial identifications of progress bills; Le., 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 (July 1 through June 30th);
· The Consultant's signature.
2.2 Monthly Payment. 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 Deleted.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1, 2004
Page 2 of 13
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2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the following fee schedule:
2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate
and not paid separately.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform'any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost 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 may furnish physical facilities such as desks, telephone service, 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.
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.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1 2004
Page 3 of 13
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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 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 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 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 insureds with respect to each of the following: liability arising out of
activities performed by or on behalf of Consultant, including the insured's
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1 , 2004
Page 4 of 13
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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.
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1,2004
Page 5 of 13
'-
4.3 All Policies Reauirements.
4.3.1 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.
4.3.2 Verification of coveraQe. 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.
4.3.3 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.
4.3.4 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.
4.3.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and
obtain the approval of City for the self-insured retentions and deductibles before
beginning any of the services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles
or self-insured retentions with respect to City, its officers, employees, agents, and
volunteers. The Contract Administrator may condition approval of an increase in
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1, 2004
Page 6 of 13
fiD'<D
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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.
4.3.6 Notice of Reduction in Coverage. In the event that any coverage required by
this section is reduced, limited, or materially affected in any other manner,
Consultant shall provide written notice to City at Consultant's earliest possible
opportunity and in no case later than five days after Consultant is notified of the
change in coverage.
4.4 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 selected by the City, 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, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
apply to any damages or claims for damages whether or not such insurance policies shall have been
determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
provisions of this Section and that it is a material element of consideration.
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1, 2004
Page 7 of 13
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 Agent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Reaulations. 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,
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1, 2004
Page 8 of 13
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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 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
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.
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1, 2004
Page 9 of 13
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8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assianment and SubcontractinQ. 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 bv 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
Cîty 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 orobtains 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 Cannon Design Group
July 1, 2004
Page 10 of 13
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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 aI/ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements ct:targed
to the City under this Agreement for a minimum of three (3) years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of
the City. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the
Agreement sh~1I 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 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 Assians. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1,2004
Page 11 of 13
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10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place
Consultant in a "conflict of interest," as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be
entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any
sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of Government Code § 1090 and, if
applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Community
Development Director ("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:
Cannon Design Group
Attn: Larry Cannon
180 Harbor Drive, Suite 219
Sausalito, CA 94965
Any written notice to City shall be sent to:
City of Dublin
Attn: City Manager
100 Civic Plaza
Dublin, CA 94568
Consulting Services Agreement between
City of Dublin and Cannon Design Group
July 1,2004
Page 12 of 13
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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.
For: CITY OF DUBLIN
A Municipal Coporation
City
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
G:\CONTRACTS\On-Call Contract Agreement with Larry Cannon.doc
Consulting Services Agreement between
City of Dublin and Cannon Design Group
CONSULTANT
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Larry ann n, Principal
July 1, 2004
Page 13 of 13
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EXHIBIT A
SCOPE OF SERVICES
Provision of planning and other development services including, but not limited to, environmental,
architectural, landscape architectural and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
Said services shall be performed at the direction of the Community Development Director on an as-needed
basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Payment Schedule)
Consulting Services Agreement between
City of Dublin and Cannon Design Group - Exhibit A
July 1, 2004
Page 1 of 1
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EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed $90.00 per hour.
Consultant shall not bill for any reimbursable items.
Consulting Services Agreement between
City of Dublin and Cannon Design Group M Exhibit B
July 1 2004
Page 1 of 1
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
JEFFREY F. GAMBONI
ON-CALL CONTRACT FOR PLANNING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Jeffrey F. Gamboni, Landscape Architect ("Consultant") as of ,200_.
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 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, first-class manner and shall conform to the
standards of quality normally observed by a person practicing in Consultant's profession.
1.3 Assianment 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 the hourly sum set forth in
Exhibit S, 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.
July 1, 2004
Page 1 of 13
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Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
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Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to'any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
· Serial identifications of progress bills; i.e., Progress Bill NO.1 for the first invoice,
etc.;
· The beginning and ending dates of the billing period;
· A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, 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 (July 1 through June 30);
· The Consultant's signature.
2.2 Monthlv Payment. 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 Deleted.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1 2004
Page 2 of 13
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2.5 Hourlv Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the following fee schedule:
2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate
and not paid separately.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost 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 may furnish physical facilities such as desks, telephone service, 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.
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.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1 2004
Page 3 of 13
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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 p.rogram 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 În 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-
Òwned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1/73)
covering comprehensive General Liability and Insurance Services Office form
number GL 0404 covering Broad Form Comprehensive General Liability.
Automobile coverage shall be at least as broad as Insurance Services Office
Automobile Liability form CA 0001 (ed. 12/90) Code 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:
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
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1, 2004
Page 4 of 13
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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 Liabilitv 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 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:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1, 2004
Page 5 of 13
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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 Reauirements.
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 coveraae. 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 Însurance
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.
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
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1, 2004
Page 6 of 13
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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 selected by the City, 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, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
apply to any damages or claims for damages whether or not such insurance policies shall have been
determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
provisions of this Section and that it is a material element of consideration.
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1,2004
Page 7 of 13
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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 Agent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
7.3 Other Governmental ReQulations. To the extent that this Agreement may be funded by
fiscal assistance from another govemmental 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,
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1, 2004
Page 8 of 13
Section 8.
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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.
TERMINATION AND MODIFICATION.
8.1
Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
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Consultant may cancel this Agreement upon thirty (30) days' written notice to City and
shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Admin·istrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1, 2004
Page 9 of 13
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8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assianment and Subcontractina. 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 bv 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
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1,2004
Page 10 of 13
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confidential and will not be released to third parties without prior written consent of both
_ parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this Agreement for a minimum of three (3) years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of
the City, Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the
Agreement shall be subject to the examination and audit of the State Auditor, at the
request of City or as part of any audit of the City, for a period of three (3) years after final
payment under t~e 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 attomeys' 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 Assiçms. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1, 2004
Page 11 of 13
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10.6 Use of Recvcled 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 Govemment Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be
entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any
sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of Government Code § 1090 and, if
applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
_,.",~0.9 Contract-Administration. This Agreement shall be administered by Community
Development Director ("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:
Jeffrey F. Gamboni
Landscape Architect
3012 Pacific Avenue
Stockton, CA 95204
Any written notice to City shall be sent to:
City of Dublin
Attn.: City Manager
100 Civic Plaza
Dublin, CA 94568
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
July 1,2004
Page 12 of 13
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10.12 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between
City and Consultant and supersedes all prior negotiations, representations, or agreements,
either written or oral.
For: CITY OF DUBLIN
A Municipal Coporation
City
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
G:ICONTRACTSIOn-Call Contract Agreement with Jeff GambonLdoc
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni
CONSULTANT
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U rey F. Gamboni, Landscape Architect
July 1, 2004
Page 13 of 13
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EXHIBIT A
SCOPE OF SERVICES
Provision of planning and other development services including, but not limited to, environmental,
architectural, landscape architectural and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
Said services shall be performed at the direction of the Community Development Director on an as-needed
basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Payment Schedule)
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni - Exhibit A
July 1, 2004
Page 1 of 1
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EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed $90.00 per hour.
Consultant shall not bill for any reimbursable items.
Consulting Services Agreement between
City of Dublin and Jeffrey F. Gamboni - Exhibit B
July 1, 2004
Page 1 of 1
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
PAUL NIEMUTH & ASSOCIATES
ON·CALL CONTRACT FOR PLANNING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Paul Niemuth & Associates ("Consultant") as of ,200_. .
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 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, first-class manner and shall conform to the
standards of quality normally observed by a person practicing in Consultant's profession.
1.3 Assiqnment 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 ofthis 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 the hourly sum set forth in
Exhibit S, 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 Paul Niemuth & Associates
July 1, 2004
Page 1 of 13
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Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
· Serial identifications of progress bills; Le., 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
reac+tes or exceeds. BOO hours;
· The Consultant's signature.
2.2 Monthly P¡:¡yment. 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 Deleted.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1, 2004
Page 2 of 13
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2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the following fee schedule:
2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate
and not paid separately.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost 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 may furnish physical facilities such as desks, telephone service, 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.
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.
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'
Consultíng Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1, 2004
Page 3 of 13
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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 coveraae. 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:
a. Cìty 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
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1, 2004
Page 4 of 13
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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 lícensed 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 polícy must contain a cross líability 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:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1,2004
Page 5 of 13
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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 Reauirements.
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 coveraqe. 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.
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
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1, 2004
Page 6 of 13
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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 selected by the City, and hold harmless the City and its officials, officers,
emploýees, 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, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage
to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its
officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
apply to any damages or claims for damages whether or not such insurance policies shall have been
determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the
provisions of this Section and that it is a material element of consideration.
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1,2004
Page 7 of 13
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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 Auent. 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 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 ReQulations. 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,
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1, 2004
Page 8 of 13
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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 thirty (30) days' written notice to City and
shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
. obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1, 2004
Page 9 of 13
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8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8,4 Assignment and Subcontractina. 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 prÎor 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 bv 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 tothe 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 Paul Niemuth & Associates
July 1, 2004
Page 10 of 13
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confidential and will not be released to third parties without prior written consent of both
parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this Agreement for a minimum of three (3) years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of
the City. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the
Agreement shall be subject to the examination and audit of the State Auditor, at the
request of City or as part of any audit of the City, for a period of three (3) years after final
payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to which
that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of Alameda or in the United States District Court for
the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and AssiQns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1, 2004
Page110f13
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place
Consultant in a "conflict of interest," as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be
entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any
sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of Government Code § 1090 and, if
applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Community
Development Director ("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:
Paul Niemuth & Associates
Attn: Paul Niemuth
2910 Camino Diablo, Suite150
Walnut Creek, CA 94596
Any written notice to City shall be sent to:
City of Dublin
Attn: City Manager
100 Civic Plaza
Dublin, CA 94568
Consultiilg Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1, 2004
Page 12 of 13
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10.12 InteQration. 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.
For: CITY OF DUBLIN
A Municipal Coporation
r
CONSULTAN~ d . ~
~-/k¿t~
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[NAME, TITLE]
City
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
G:\CDNTRACTS\On-Call Contract Agreement with Paul Niemuth.doc
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates
July 1,2004
Page 13 of 13
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EXHIBIT A
SCOPE OF SERVICES
Provision of planning and other development services including, but not limited to, environmental,
architectural, landscape architectural and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
Said services shall be performed at the direction of the Community Development Director on an as-needed
basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Payment Schedule)
Consu Iting Services Agreement between
City of Dublin and Paul Niemuth & Associates - Exhibit A
July 1, 2004
Page 1 of 1
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EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed $90.00 per hour.
Consultant shall not bill for any reimbursable items.
Consulting Services Agreement between
City of Dublin and Paul Niemuth & Associates- Exhibit B
July 1,2004
Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
LSA ASSOCIATES, INC.
ON.CALL CONTRACT FOR PLANNING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
LSA Associates, Inc. ("Consultant") as of , 200_.
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 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, first-class manner and shall conform to the
standards of quality normally observed by a person practicing in Consultant's profession.
1.3 Assicmment 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 the hourly sum set forth in
Exhibit S, 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 LSA Associates, Inc.
July 1, 2004
Page 1 of 12
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Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
· Serial identifications of progress bills; i.e., Progress Bill No.1 for the first invoice,
etc.;
· The beginning and ending dates of the billing period:
· A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, 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 (July 1 through June 30th);
· The Consultant's signature.
2.2 Monthly Payment. 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 Deleted.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc.
July 1, 2004
Page 2 of 12
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the following fee schedule:
2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate
and not paid separately.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost 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 may furnish physical facilities such as desks, telephone service, 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 soie discretion of City.
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 Consúltant 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.
4.1 Workers' Compensatíon. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc.
July 1, 2004
Page 3 of 12
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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 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 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
numberGL0404 covering Broad Form Comprehensive General Liability.
Automobile covetageshall 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:
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
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc.
July 1, 2004
Page 4 of 12
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 mail, has been given to the City,
4.3 All Policies Requirements.
4.3.1 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.
4.3.2 Verification of CDveraQe. 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.
4.3.3 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,
4.3.4 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverages, scope, limits, and forms of
such insurance are either not commercially available, or that the City's interests
are otherwise fully protected.
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc.
July 1, 2004
Page 5 of 12
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4.3.5 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.
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.
4.3.6 Notice of Reduction in Coveraqe. 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.
4.4 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, and hold harmless the City and its officials, officers,
employees, and agents 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, or by the quality or character of their work. The
foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or
violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees,
agents, or 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
Consulting SeNices Agreement between
City of Dublin and LSA Associates, Inc.
July 1, 2004
Page 6 o.f 12
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the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section
2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required
under this Agreement does not relieve Consultant from liability under this indemnification and hold
harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material
element of consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the
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 J;
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 AQent. 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 whatsoeveL
Section 7. LEGAL REQUIREMENTS.
7.1 GoverninQ Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance wÎth Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereundeL
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc,
JUly 1, 2004
Page 7 of 12
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7.3 Other Governmental Reç¡ulations. 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 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
periormed 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.
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc.
July 1, 2004
Page 8 of 12
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8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement oniy by a writing signed by all the
parties.
8.4 Assiqnment and Subcontractinq. 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 bv 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.
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc.
July 1, 2004
Page 9 of 12
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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 notlimited 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 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 inspecUon, 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 Attornevs' Fees. If a party to this Agreement brings any action, including an acUon 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 provisions of this Agreement not so
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc.
July 1, 2004
Page 10 of 12
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 aspecífic 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 Assicms. 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 Recvcled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place
Consultant in a "conflict of interest," as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code §1 090 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 Community
Development Director ("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 LSA Associates. Inc.
July 1, 2004
Page 11 of 12
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LSA Associates, Inc.
Attn.: Malcolm Sproul
157 Park Place
Point Richmond, CA 94801
Any written notice to City shall be sent to:
City of Dublin
Attn.: City Manager
100 Civic Plaza
Dublin, CA 94568
10.12 InteQration. 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.
For: CITY OF DUBLIN
A Municipal Coporation
CONSULTANT
City
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Malcolm Sproul (j
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attomey
G:\CONTRACTSIOn-Call Contract Agreement with LSA.doc
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc.
July 1, 2004
Page 12 of 12
EXHIBIT A
SCOPE OF SERVICES
I ?rovisionof planning and other development services including,but not Iimitedto,environment~l,
architectural, landscape architectural and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
Said services shall be pertormed at the direction of the Community Development Director on an as-needed
basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Payment Schedule)
Consulting Services Agreement between
City of Dublin and LSA Associates, Inc. - Exhibit A
July 1, 2004
Page 1 of 1
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EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed $90.00 per hour.
Consultant shall not bill for any reimbursable items.
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Consulting Services Agreement between
City of Dublin and LSA Associates, Inc. - Exhibit B
July 1, 2004
Page 1 of 1