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HomeMy WebLinkAboutItem 4.03 General Geotechnical Services CITY CLERK File # D[b][O][Q]-[3][Q] AGENDA STATEMENT CITY COUNCIL MEETING DATE: June 20, 2006 SUB.JECT: Amendment to Agreement with Kleinfelder, Inc., for General Geotechnical Services Report Prepared by Melissa Morton, Public Works Dire~ A TT ACHMENTS. I) 2) 3) Resolution, together with Exhibit "A," Amendment Letter from Klcinfelder, Inc. (KIeinfelder) Current Agreement and Amendment 1Y RECOMMENDATION~ '\ Adopt resolution approving the amendment to the Agreement. FINANCIAL STATEMENT. !Jnder this Agreement, Kleinfelder provides general geotechnical services to the City based on the adopted rate schedule. The types of services typically performed arc planehecking and peer review for private development projects, and soils engineering for Capital Improvement Program (CIP) Projects. Kleinfelder provides specific not-to-exceed proposals for each project, the costs of which are either paid by developers or budgeted in each specific CIP project. Per Section 2.9 of the Agreement, Kleinfelder is allowed to request a 2.6% rate increase for Fiscal Year 2006-2007 based on the Consumer Price Index (CPI) for Urban Wage Earners for the San Francisco-Oakland Bay Area for February 2006. DESCRIPTION Klcinfelder has provided general geotechnical services to the City since 1 Q96. Services provided to date have been peer review for private development projects and Staff support and testing services. The most current Agreement was approved on August 17, 2004, and was for a two-year term, terminating on June 30, 2006. The proposed amendment will extend the agreement for an additional two-year term ___________________w___w___w__w~._________________________________________________~_ww_____w.________________ COPY TO: Sadek Derrega, Kleinfelder Page I of2 ITEM NO. Lt. 3 G :\CONSUL T ANTS\ldeinfld\agstamend 06-07.doc and grant a rate increase for the second year of the term based on February cpr for Urban Wage Earners for the San Francisco-Oakland Bay Area as allowed by Section 2 of the Agreement. Klemfelder's proposed rate schedule for Fiscal Year 2006-2007 rcflccts an increase of2.6%, which is the February 2006 CPI, as specified in Section 2 of the Agreement. Under this agreement, Staff typically obtains a not-to-exceed proposal from Kleinfelder for each projcct. Costs for development-related projects are paid for by developers, and costs for CTP-relatcd projects are budgeted for in cach specific projcct. The work performed by Kleinfcldcr, Inc., to date has been satisfactory, professional, and competitive, and Staffrecommends that the City Council adopt the resolution approving the amendment to the Agreement. Page 2 0[2 I rfb '2. '], RESOLUTION NO. - 06 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING AMENDMENT TO AGREEMENT WITH KLEINFELDER, INC., FOR GENERAL GEOTECHNICAL SERVICES WHEREAS, the City of Dublin, State of California, entered into a two-year agreement with Kleinfe1der, Inc., on August 17, 2004, to perform general geotechnical services; and WHEREAS, the term of the agreement is proposed to be extended until June 30, 2008, allowing Kleinfelder Inc., to request an adjustment of rates for the second year ofthe term; and WHEREAS, Consultant is requesting an adjustment of rates for Fiscal Year 2006-2007 as allowed by Section 2 of the Agreement, NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dubhn does hereby approve the amendment to the agreement with Kleinfelder, Inc., which is attached hereto as "Exhibit A." BE IT FURTHER RESOLVED that the Mayor is authori7-ed to execute the amendment to the Agreement. PASSED, APPROVED AND ADOPTED thiS tith day ofJune, 2006. AYES' NOES. ABSENT ABSTAIN Mayor ATTEST City Clerk G;iCONSULTANTS\kJelnfldlreso amend Q6~07.doc Irzo- O(P </...:3 ATTAUIDIENT I. EXHIBIT "A" OF RESOLUTION -06 AMENDMENT TO AGREEMENT BETWEEN CITY OF DUBLIN AND KLEINFELDER, INC., FOR ENGINEERING SERVICES 2 on ]; 'z", WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Kleinfelder, Inc. (hereinafter referred to as "CONSULTANT"), entered into a two-year agreement on August 17, 2004, to provide geotechnical engineering services to CITY, and WHEREAS, CITY and CONSULTANT wish to extend the term of the agreement for an additIOnal two years, terminating June 30, 2008; and WHEREAS, CONSULTANT has requested an adjustment of rates for Fiscal Year 2006-2007, NOW, THEREFORE, the parties hereto agree as follows: Extension of Term The term ofthe agreement shall be extended from July 1, 2006, to June 30, 2008. Should a new agreement or amendment to agreement to extend the contract not be entered into by June 30, 2008, then this agreement will automatically extend until a new agreement or amendment to agreement is entered into or CITY gives written notice oftermmation. Adiustment of Rates The rate schedule attached hereto as Exhibit 1 shall be in effect for Fiscal Year 2006-2007 CITY OF DUBLIN KLEJNFELDER, INC Janet Lockhart, 11ayor ~~ 11ike Majchrazk, Regional 11anager ATTEST Date: U/~~ City Clerk G:\CONSUL T ANTS\kleinfld\arnendmenl 06-07,doc EXBIBITA To the Resolution 3~ ~ z, 2006/2007 RATE TABLE City of Dublin On-Call Geotechnical Consultation CLASSIFICATION 2006-2007 PROPOSED RA TE/HR. Principal Professional $ 200 Senior Project Manager 180 Senior Professional 170 Project Manager II 159 Project Manager I 154 Projecf Professional 148 Staff Professional II 136 Staff Professional I 121 Professional II 109 Professional I 103 CADD Operator 95 Supervisory Technician 103 Draftsperson 82 Senior Technician 101 Technician III 93 Technician II 82 Technician I 77 AdministrativelWord Processor 72 G:\CONSUL TANTS\kleinfld\BXhibit 1 agreement D6-07.doc mIBlT ~ ~t:J -t/v!. Antend men:t: ~'D "l V III KLEINFElDER An emplove-e I1Wl1ed compimy ,,' January 11, 2006 File. 01003PROP i:l< Melissa A. Morton, Director of Public Works City of Dublin 100 Civic Plaza Dublin, California 94568 SUBJECT: On-call Consulting Services Contract Dear Ms. Morton: In response to your letter dated December 16, 2005, Kleinfelder, Inc. desires to have its contract to provide consulting services to the City of Dublin extended for another two- year period beyond June 30, 2006 Our current rate schedule was established in February 2005 based on the CPI increase from February 2004 to February 2005 We will request an adjustment in our current fee schedule based on the CPI for the year ending February 2006. Since that data is not currently available, we request an extension until late March in order to obtain and evaluate the data. Alternatively, we will provide provisional rates upon request based on an assumed 3% CPI changes. We appreciate the opportunity to continue providing engineering services to the City Please call me if you would like a provisional rate schedule as discussed above. Sincerely, KLEIN FELDER, iNC. ~&6J Geosciences Group Manager DGG/jmk 01003PROPI(PLE6L016,doc)ljmk Copyright 2006, Kleinfelder. tnc. K LEI N F [L D E R 71:n KoJl I_.enter Par'kway Suite "I uo, Pleasanton, CA Y4Shh-:'~ 1 01 '925148 ATTAIIMENT Z. '.' CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND KLEINFELDER, INC. c.-'lJ1 z" "{/ 'JU THIS AGREEMENT for consulting services is made by and between the CITY OF DUBLIN ("City') and KLEINFELDER, INC. ("Consultanf) as of August 17, 2004. Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as ExhibilA at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall end on June 30, 2006, the date of completion specified in Exhibit A. and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The lime provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession, Consultant shall prepare all work products required by this Agreement in a substantial, first-<:Iass manner and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 Asslanment 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 I.lm!, 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, Consultant shall not be responsible for delays beyond Consultant's reasonable control. Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed Seventy- Five Thousand Dollars and No Cents ($75,000), 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. Consuiting Services Agreement between City of Dublin and Klelnfelder, Inc. ATTAumNT .3. [Pc lb 2-. l- 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 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: . Clear numerical identification, with no duplication of numbering; . 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, which shall include an estimate of the time necessary to complete the work described in Exhibit A: · The Consultant's signature. 2.2 Monthlv Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs Incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 Total pavment 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 Kleinfelder, Inc. August1?,2004 Page 2 of 13 -1 r.o? 7-. 2.4 HourlY Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B. 2,5 Reimbursable ExDenses. Reimbursable expenses are Included in the total amount of compensation provided under this Agreement that shall not be exceeded. 2.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.7 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date, 2.8 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section. and only under the terms and conditions set forth herein. City shall fumish phySical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City, The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to fumish any facility that may Involve incurring any direct expense, including but not limited to computer, long-cistance 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. Consulting Services Agreement between City of Dublin and Kleinfelder, Inc. August 17,2004 Page 3 of 13 On "Z.'. D -u /, - 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 nolless than ONE MilLION DOLLARS ($1,000,000.00) per accident. In the altemative, Consultant may rely on a self.lnsurance program to meet those requirements, but only if the program of self-Insurance complies fully with the provisions of the California labor Code. Determination of whether a self.insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self.insurance is provided, shall waive all rights of SUbrogation against the City and Its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.2 Commercial Genaral and Automobile LIl!blJlty Insurance. 4.2.1 Genaral reoulrements. 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 SCODa of coveraae. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occulTence 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 8 and 9 ('any auto"). No endorsement shall be attached limning the coverage. 4.2.3 Addlflonal reaulrements. Each of the following shall be included In the insurance coverage or added as an endorsement to the policy: Consulting Services Agreement between City of Dublin and Kleinfelder, Inc. August17,2004 Page 4 of 13 il J. z.. -, un ,^ a. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities pel10rmed 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 seW-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 reporiing provisions of the policy shall not affect coverage provided to CITY and its officers, employees, agents, and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's Insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.3 Professional Llabllltv 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 prolessionals' errors and omissions. 4.3.1 Any deductible or self.insured retention shall not exceed $150,000 per claim. 4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City 4.3.3 The following provisions shall apply if the professional liability coverages are written on a claims-made form: August 17,2004 Page 5 of 13 Consulting Services Agreement between City of Dublin and Klelnfelder, Inc. ({\'-..;./ V ) a. The retroactive date of the polley 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 Reaulremllnts. 4.4.1 Accepfabilitv 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 fumish City with certificates of Insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance polley 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 subconfractors as Insureds under its policies or shall fumish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein, 4.4A 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 Deductible! and Self.lnsured Retentions. Consultant shall disclose to and obtain the approval of City for the self-Insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. Consulting Services Agreement between City of Dublin and K1einfelder, Inc. August 17, 2004 Page 6 of 13 llr.~ I j;..- During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Consultant may increase such deductibles or self.lnsured 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 onosses 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 Consu~ant'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 Consullant demonstrates compliance with the requirements hereof; and/or . Terminate this Agreement. Section 5. INOEMNIFICATION AND CONSULTANT'S RESPQNSlPILITIES. Consultant shall indemnify, defend with counsel selected by lhe 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 wiliful 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 2776 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 Consulting Services Agreement between City of Dublin and Kleinfelder, Inc. August 17, 2004 Page 7 of 13 f 2-1; I I 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 IndeDendent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only Insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of Its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll In the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant No 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 ADDUcable 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. Consulting Services Agreement between City of Dublin and Kleinfelder, Inc. August 17,2004 Page 8 of 13 1:1 ,.}- ;:;t.fJ 7.4 Licenses and Pllnnlts. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, pennlts, 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 tenn 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 tenn of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Eaual ODDOrtunlty. 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 slatus, 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 Termlniltion. 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 Consulting Services Agreement between City of Dublin and K1einfelder, Inc. August 17, 2004 Page 9 of 13 l~l7, 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 Asslanment and Subcontractlna. City and Consultant recognize and agree that this Agreement contemplates personal pertonnance by Consultant and is based upon a detennination 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 perfonnance 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 tannination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the tennination of this Agreement. 8.6 Options uoon Breach bv Consultant, If COnsultant materially breaches any of the tenns of this Agreement, City's remedies shall included, but not be limited to, the following: 8.6.1 Immediately tenninate the Agreementj 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 Creafed as Part of Consultant's Perfonnance. 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 fonn, 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 tennination of the Agreement. It is understood and agreed that the documents and other materials, Including but not limited to those described Consulting Services Agreement between City of Dublin and Klelnfelder, Inc. August17,2D04 Page 10 of 13 : ;::c id .~, 2., ~..... U'O t'. 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'. 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 Attorneva' 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 entlijed. 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 acllon 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 ImDlled 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. Consulting Services Agreement between City of Dublin and Kleinfelder, Inc. August 17, 2004 Page 11 of 13 i (" 0:& l"L- 10.5 Successors and Asslans. 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 Connlct 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 Govemment Code ~1 090 et.seq., the entire Agreementls 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 Califomia. 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 Melissa Morton, Public Works 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: Don Gray Kleinfelder, Inc. 7133 KolI Center Parkway, #100 Pleasanton, CA 94566 Any written notice to City shall be sent to: Melissa Morton City of Dublin Public Works 100 Civic Plaza Dublin, CA 94568 Consulting Services Agreement between City of Dublin and K1einfelder, Inc. August 17. 2004 Page 12 of 13 11iJfJtl 10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications. and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation, The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility,' as in the following example. 10.12 Intearatlon. 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. DUBLIN CONSULTANT .~ ~{/J(/.J 'c.s- ,-r~.. A_~<1<td- Kay Keck, I rk "- Approved as to Fonn: -1Xw~ ;V ~.L Elizabeth Sliver, City Attorney G;\Eng'''''ntrocllzumwal\lagreorn.nl04.Q5,doc Consulting Services Agreement between City of Dublin and Kleinfelder, Inc. August 17,2004 Page 13 of 13 '.' i '166 2."1- EXHIBIT A SCOPE OF SERVICES To provide geotechnical peer review of soils and geologic reports for private development projects and Capital Improvement Projects; Including testing and field observations and attendance at meetings as required, Consultant shall provide City with a not-to-exceed fee on a project by project basis. G:lEngr<:on.acl\z1Imwall\agroemenl l)4.(l5,doc August17,2004 Page 1 of 1 Consulting Services Agreement between City of Dublin and Kleinfelder, Inc.--Exhibit A ,.' Ht5 7.'- EXHIBIT B COMPENSATION SCHEDULE The term of the agreement shall be for a two-year period ending June 30, 2006. Consultant may request an adjustment of rates for the second year of the term. Compensation shall be paid per the attached Fee Schedule. City shall pay Consultant an amount not to exceed the total sum of Fifty Thousand Dollars ($50,000) per year for services to be performed pursuant to this Agreement. Consultant shall submit invoices at the end of each specific project or as agreed between Consultant and City regarding each specific project, based on the cost for services performed. The total sum stated above shall be the total which City shall pay for the services to be rendered by Consuitant pursuant to this Agreement. City shall not pay any additional sum for any expense or cosf whatsoever incurred by Consultant in rendering services pursuant to this Agreement City shall make no payment for any extra, further or additional service pursuant to this Agreement unless such extra service and the price therefor Is agreed to in writing executed by the City Manager or other designated official of City authorized to obligate City thereto prior to the time such extra service is rendered and in no event shall such change order exceed twenty-five percent (25%) of the initial contract price. The services to be provided under this Agreement may be terminated without cause at any point in time in the sole and exclusive discretion of City. If the Agreement is terminated by City, Consultant shall be entitled to receive Just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. In that event, all finished and unfinished documents and other materials shall, at the option of the City, become City's sole and exclusive property Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to date. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of a fully executed Purchase Order from the Finance Department of the City of Dublin. G:\Engr_lrad\zumwall\ag..ement 04-1l5,doc Consu!Ung Services Agreement between City of Dublin and Kleinfelder, Inc.-Exhibit B August 17, 2004 Page 1 of 1 " .. K LEt N F E L 0 ER V:-)~2? Technician I 2004-2005 PROPOSED RATE/HR. $192 $171 $161 $151 $146 $140 $129 $115 $103 $98 $90 $96 $78 $98 $88 $78 $73 $68 CLASSIFICATION Principal Professional Senior"ProJect Manager Senior Professional Project Manager II Project Manager I Project Professional Staff Professional II Staff Professional I Professional II Professional I CADD Operator Supervisory Technician Draftsperson Supervisory Technician Technician III' Technician II AdministratlveJWord Processor OlOO3GA (pLE4L129)1jb @ 2004 Kleinfiltder. Inc_ ," .... 2lufJJ2-- EXHIBIT "A" OFRESOLUOON "8 -05 AMENDMENT TO AGREEMENT BETWEEN CITY OF DUBLIN AND KLEINFELDER, INC. FOR GEOTECHNICAL SERVICES WHEREAS, the City of Dublin (hereinafter referred to as "CITY") IlIId KJeinfelder, Inc. (hereinafter referred to as "CONSULT ANT"), entered into a two-year agrecmlmlt on August 17, 2004, to provide engineering services to CITY; and WHEREAS, the terms of the agreement anow for IlII adjustment of mtee for Fiscal Year 2005-2006; iIIld WHEREAS, Consultant wishes to adjllst the rates of .aid agreement for the 2005.2006 fiscal year; NOW, THEREFORE, the parties hereto agree as follows: Adiustment ofRatcs The rate schedule attached hereto as E"hibit I shall be effective for Fiscal Year 2005-2006. Not- To-Exceed The Not-To-Exceed amount for the term of this Agreement shall be $200,000. CITY OF DUBLIN ~d~.M,-;Y Jan Lockhart, yor KLEINFELDER, INC. ~~~ ATIEST Date: i~f/,f (J:\CONSULTANTSIJ<I,;nndllOOJIAMNIJMENT 05'()6,do<: " " :~ '1) Z 2005f2006 RATE TABLE City of Dublin On.Call Geotechnical Consultation Project Manager II 2006.2008 PROPOSED RATE/HR. $195 $175 $165 $155 CLASSIFICATION Principal Professional Senior Project Manager Senior Professional Professional I $150 $144 $132 $118 $106 $100 $92 Project Manager I Project Professional Staff Professional II Staff Professional I Professional II CADD Operator Technician I $100 $80 $98 $90 $80 $75 $70 Supervisory Technician Draftsperson Senior Technician Technician III Technician II AdminislratlvelWord Processor 01003GA(Pll'5L3lO.docYjmk o ~QO:i> I<ldflfilldll'l', Ine, K l [I N F ~ l o~ R 71JJ Kolle.n1e, p.rkway. Sulle 100, Ple..anlOn, CA 94566"31 01 1~lO) .34-1700 192'1484-5838 fax