HomeMy WebLinkAboutItem 4.03 Burrowing Owls Potential Habitat
CITY CLERK
File # 600-30
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: November 7,2006
SUBJECT:
Agreement with H.T. Harvey and Associates for Consulting
Services, Survey of Potential Habitats for Burrowing Owls at the
Future Fallon Sports Park Site
Report Prepared by: Melissa Morton, Public Works Director
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ATTACHMENTS:
1)
2)
Budget Change Form
Resolution, together with Exhibit "A," Agreement
RECOMMENDATION:
x
1)
2)
Approve a budget change in the amount of $34,900, and
Adopt the resolution approving the agreement with H.T.
Harvey and Associates
FINANCIAL STATEMENT:
The cost for these services are not included in the current Park
Maintenance budget. Therefore, a budget change in the amount of
$34,900 is necessary in order to enter into this agreement.
DESCRIPTION: The Fallon Sports Park project is included in the City's five-year
Capital Improvement Program (CIP). The multi-phase project is scheduled to begin in Fiscal Year 2007-
2008 and be completed in Fiscal Year 2009-2010. The 60-acre Fallon Sports Park will be located on a
parcel dedicated by the Lin Family within Dublin Ranch in the Eastern Dublin Specific Plan Area.
Burrowing owls are indigenous to this area and have been discovered residing in the vicinity of the future
Fallon Sports Park. Rather than digging burrows, burrowing owls have been observed to inhabit
burrowed holes abandoned by ground squirrels.
Burrowing owls are classified as a Species of Special Concern by the California Department of Fish and
Game. Under the California Environmental Quality Act, the City of Dublin is required to perform
mitigation if a CIP project impacts a burrowing owl nest site. Regular surveys for ground squirrel
burrows, and subsequent collapse of the burrows before burrowing owls can adopt the sites, will eliminate
the need for costly mitigation and keep this species from becoming established on the land designated for
the Fallon Sports Park.
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G:\DEVELOPIFallon Sports Complex\H.T. Harvey and Associates, future Fallon Sports Complex\agenda statement.doc
The proposal from H.T. Harvey and Associates indicates a cost of$34,900 a year for the services outlined.
Staff recommends that the City enter into a 3-year contract for the consultant's services. The total acreage
to be assessed by the consultant will be adjusted annually by the City and will be based upon the
remaining undeveloped property. By approving the budget change, the Park Maintenance budget will be
increased by $34,900 in Fiscal Year 2006-2007 to accommodate these costs, and future years will be
budgeted as part of the regular budget process.
Staff recommends that the City Council 1) approve the budget change in the amount of $34,900, and
2) adopt the resolution approving the agreement with H.T. Harvey and Associates.
CITY OF DUBLIN
BUDGET CHANGE FORM
CHANGE FORM #
New Appropriations (City Council Approval Required):
Budget Transfers:
_X_From Unappropriated Reserves
From Budgeted Contingent Reserve (1080-799.000)
Within Same Department Activity
Between Departments (City Council Approval Required)
Other
From New Revenues
Name: Park Maintenance
Name:
$34,900.00
Account #:
Name:
Account #: 001.80200.740.000
Name:
Account #:
Name:
Account #:
Name:
Account #:
Name:
Account #:
Name:
Account #:
Name:
Account #:
Name:
Account #:
Account #:
Fin Mgrl ASD:
Signature
Date:
REASON FOR BUDGET CHANGE ENTRY:
Ecological consulting services required
City Manager:
Date:
Signature
As Approved at the City Council Meeting on: Date:
Mayor: Date:
Signature
Posted By:
Signature
ATTAUHMENT _1
RESOLUTION NO. -
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING CONSULTING SERVICES AGREEMENT
WITH H.T. HARVEY AND ASSOCIATES
FOR SURVEY OF POTENTIAL HABITATS FOR BURROWING OWLS
AT THE FUTURE FALLON SPORTS PARK SITE
WHEREAS, a Capital Improvement Program project has been included in the 5-year program to
construct a 60-acre Sports Park located on the Dublin Ranch property in the Eastern Dublin Specific Plan
Area; and
WHEREAS, it has been determined that burrowing owls have been observed to be residing in the
public right-of-way of the future Fallon Sports Park site; and
WHEREAS, burrowing owls have been designated as a Species of Special Concern by the State of
California and require mitigation when a project disturbs a burrowing owl nest site; and
WHEREAS, a survey must be performed on the site to detect existing owl habitats and minimize
the potential for future owl habitats;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby
approves the agreement with H.T. Harvey and Associate for consulting services.
BE IT FURTHER RESOLVED that the Mayor is authorized to execute the agreement.
PASSED, APPROVED AND ADOPTED this 7th day of November, 2006.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
G:IDEVELOPIFallon Sports ComplexlH. T. Harvey and AssociatesJuture Fallon Sports Complexlresolution.do A TT A UHMENT
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND H.T. HARVEY & ASSOCIATES
THIS AGREEMENT for consulting services is made by and between the CITY OF DUBLIN ("City")
and H.T. Harvey & Associates ("Consultant") as of November 7,2006.
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant
shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and
place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms
of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the date first noted above
and shall end on November 6, 2009, 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 time provided to Consultant to complete the services required by this Agreement shall
not affect the City's right to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to
this Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Consultant is engaged in the geographical area in
which Consultant practices its profession. Consultant shall prepare all work products
required by this Agreement in a substantial, first-class manner and shall conform to the
standards of quality normally observed by a person practicing in Consultant's profession.
1.3 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.
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 Thirty-Four
Thousand Nine Hundred Dollars and No Cents ($34,900) per year, 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
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
EXHIBIT A
To the Resolution
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 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 Monthly Payment. City shall make monthly payments, based on invoices received, for
services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have 30 days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
2.3 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra,'further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7, 2006
Page 2 of 2
5
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 Expenses. 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.
2.9 Rate Adjustments. Consultant will be entitled to an annual rate adjustment upon each
annual anniversary of this Agreement, the amount of said increase to be approved by the
City. The base for computing the adjustment shall be the Consumer Price Index for Urban
Wage Earners for the San Francisco-Oakland Bay Area published by the U.S. Department
of Labor, Bureau of Labor Statistics (Index) which is published for the year ending in
February. If the Index has increased over the Index for the prior year, the rates for the
following year shall be established by multiplying the rates for the current year by a
fraction, the numerator of which is the Renewal Index and the denominator of which is the
Index for the preceding year. In no case shall the adjusted rates be less than the initial
rates as set forth in Exhibit B. A sample calculation is set forth below. The Public Works
Director shall calculate the adjusted rate on each anniversary date of this agreement and
shall provide notice to Consultant of such new rates. The total acreage to be assessed by
the Consultant shall be adjusted annually by the City and based upon the remaining
undeveloped property.
SAMPLE CALCULATION: (Using 1% index increase as an example)
HOURLY CHARGE RATE
INDEX INCREASE (Assuming 1 %) 150 x .01 = 1.50
$150.00/hr
1.50/hr
$151.50/hr
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.
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7,2006
Page 3 of 3
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be
reasonably necessary for Consultant's use while consulting with City employees and reviewing records and
the information in possession of the City. The location, quantity, and time of furnishing those facilities shall
be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve
incurring any direct expense, including but not limited to computer, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement,
Consultant, at its own cost and expense, shall procure "occurrence coverage" insurance against claims
for injuries to persons or damages to property that may arise from or in connection with the performance
of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors.
Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this
section and under forms of insurance satisfactory in all respects to the City. Consultant shall maintain
the insurance policies required by this section throughout the term of this Agreement. The cost of such
insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to
commence work on any subcontract until Consultant has obtained all insurance required herein for the
subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be
submitted and made part of this Agreement prior to execution.
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 canceled except after thirty (30)
days' prior written notice by certified mail, return receipt requested, has been given to the
City. Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits.
4.2 Commercial General and Automobile 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
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7,2006
Page 4 of 4
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 8 and 9 ("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 additional insureds with respect to each of the following: liability arising
out of activities performed by or on behalf of Consultant, including the
insured's general supervision of Consultant; products and completed
operations of Consultant; premises owned, occupied, or used by
Consultant; and automobiles owned, leased, or used by the Consultant.
The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or
volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not
on a claims-made basis.
c. An endorsement must state that coverage is primary insurance with
respect to the City and its officers, officials, employees and volunteers,
and that no insurance or self-insurance maintained by the City shall be
called upon to contribute to a loss under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the
policy shall not affect coverage provided to CITY and its officers,
employees, agents, and volunteers.
e. An endorsement shall state that coverage shall not be canceled except
after thirty (30) days' prior written notice by certified mail, return receipt
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7,2006
Page 5 of 5
requested, has been given to the City. Consultant shall notify City within
14 days of notification from Consultant's insurer if such coverage is
suspended, voided or reduced in coverage or in limits.
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for
licensed professionals performing work pursuant to this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals'
errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided,
canceled by either party, reduced in coverage or in limits, except after thirty (30)
days' prior written notice by certified mail, return receipt requested, has been given
to the City.
4.3.3 The following provisions shall apply if the professional liability coverages are
written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement or the
work, so long as commercially available at reasonable rates.
c. If coverag.e 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 coveraae. Prior to beginning any work under this Agreement,
Consultant shall furnish City with certificates of insurance and with original
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7,2006
Page 6 of 6
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
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;
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7,2006
Page 7 of 7
· 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.
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. 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
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7,2006
Page 8 of 8
6.2
Section 7.
7.1
7.2
7.3
7.4
7.5
/1
'3
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.
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.
LEGAL REQUIREMENTS.
GoverninQ Law. The laws of the State of California shall govern this Agreement.
Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
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.
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.
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.
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7,2006
Page 9 of 9
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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.
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;
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7, 2006
Page 10 of 10
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8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not
finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that is unfinished at the time of breach and the amount
that City would have paid Consultant pursuant to Section 2 if Consultant had
completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications,
records, files, or any other documents or materials, in electronic or any other form, that
Consultant prepares or obtains pursuant to this Agreement and that relate to the matters
covered hereunder shall be the property of the City. Consultant hereby agrees to deliver
those documents to the City upon termination of the Agreement. It is understood and
agreed that the documents and other materials, including but not limited to those described
above, prepared pursuant to this Agreement are prepared specifically for the City and are
not necessarily suitable for any future or other use. City and Consultant agree that, until
final approval by City, all data, plans, specifications, reports and other documents are
confidential and will not be released to third parties without prior written consent of both
parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers,
books of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this 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
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7, 2006
Page 11 of 11
It!
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
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 is available at equal or
less cost than virgin paper.
1 0.7 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 S 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
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7,2006
Page 12 of 12
/'S{6
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...)
may be subject to criminal prosecution for a violation of Government Code S 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 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:
Scott Terrill
H. T. Harvey & Associates
3150 Almaden Expressway, Suite 145
San Jose, CA 95118
Any written notice to City shall be sent to:
Melissa Morton
City of Dublin Public Works
1 00 Civic Plaza
Dublin, CA 94568
10.11 Professional Seal. Where applicable in the determination of the contract administrator,
the first page of a technical report, first page of design specifications, and each page of
construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled
"Seal and Signature of Registered Professional with report/design responsibility," as in the
following example.
Not Applicable
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Intearation. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between
City and Consultant and supersedes all prior negotiations, representations, or agreements,
either written or oral.
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
November 7,2006
Page 13 of 13
CITY OF DUBLIN
Janet Lockhart, Mayor
Attest:
Fawn Holman, City Clerk
Approved as to Form:
Elizabeth Silver, City Attorney
G:ICONSUL T ANTSlconsulting agreement REVISED (June 2004).doc
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates
/LP (
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November 7,2006
Page 14 of 14
/1
EXHIBIT A
SCOPE OF SERVICES
To provide Ecological Surveying services, which includes the services outlined in the Proposal to Provide
Surveys for Burrowing Owls and Potential Habitat on Future Fallon Sports Park Site, attached hereto
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates --Exhibit A
November 7,2006
Page 1 of 5
PROPOSED SCOPE OF SERVICES
FALLON SPORTS PARE BD1ffiO"'1NG OWLfBITRRffiV SURVEYS
PI'oposaI Number 4S67
26 Sep.tember Z006
R T. Harvey&: A.!l~ocilJ,tes proposes to provide ecological consuliriugservice'l to the City of
Dublm to conduct smveys fer the BmTO\V!I1g O.vll~~tileullt"lmicl1laria) and fur InuTows that
could pctemiilly be used. B\llTovl'lllg Owls at the nl!:\1resite of the Fallon Sports Park The
)-'1.lIpase of tim; momtoringls to detect any Bwrowmg Owls on the site and to minimize the
potenti~ilfur owls to lOO\~e onto fue Sl;!e.
The proposed tnks fer this soope 01 sen'lces tue, described belovi. A fee estimate an annual
budget Iorllie'1lemsks fur the period bennen November 7, 201)0 and Nn\"el11ber 6, ]009 m
attache.d. It is a~sluued tJmt the SllI'i"eV area \vill diminish (l"i/er dre life, of tn.e contract as
construction occur;; on theproiect site, The e.Illllllte is based 011 dIe year begiJmillE' WIth the
lJ,pl-1fc,val of tire coatract. It L~ assumed. iliat thecos! fer tile each cf the ni;o,tthseqllentye,ars\1i'ill
uctexceed the annual bud.get estimate fer year one.
Task 1. BUl'l'oThillg OwllSquirrel BUrl'I),\, Surveys
SUT'leVS fer BurrowlIll!" O\vh will be ii:;cmbilred ,.~ith scume.! burrow St.ln'ev". llsthe BUlTCwmg:
OW! utilizes Ot.'ITOWS 'created and abandoned bv grn~1Jld SGIlrirrels. n; llurv1C',~~ ,,,ill oc,nu.
approXill.l!l.tely OllCe weekly during the faIl, late ;pring, and. ~mner lllilufu.and<t\\'!ce weekly
during January, Febma.ry, and MllfCb. Tne purpose of the increased !ltlI'ii'eyeffbrt from Jl'1ll11ro:y
tl::rough Mllfch is to, better ea'iiUre that owhare not able to move onto the sire mdestJlblish nest,
durillg the early part of the ntsrinE' se,lJ,1lon. Smveys reqlUJe walkinE the enUre site. which alknvs
m.u'Ve~'ors to in~p. ;fC! the gr.. .'DUlle!. fu~ burrows and. olds. . .
~ -
Task 2. Habit:H Rellloval
i,"lihen lltllTJWSare located. RI. Harvey"", Associares will contact i!lU animal contr~l eIt!!!',!" oillie
Cities'choie,e (to be retai~dby the city) and will advise Oil reluevaiof b\llTOW" 1\iiiliollt" impact
to Bwro\\;ng Ovtk An H.. T Harvey biologist will meet 'with th~i!inilllEJ c{}ntrolentlty to
mihcate' the iocationofthe burrov;'S and Provide~,pe;:ific adirice conceming ha1ntlR removal. .
Task 3, Monthly Report of Findings
fua momlll.y letter report, H. T. Harvey & AS"locia:res will SUF;J.ll'l;lfJizeeach moulli'.. smveys or
llctiviue.... Reports \vill indude.: the dates SUTlte'Y"1l were conducted, if and where s.quirrel burrows
';vere located. whefueI lnurowing oVilswere pi:e~ent or abs,elli, and aciioos taken to eliminate'
b'llITI)\\mg ,nvl habitat
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates --Exhibit A
November 7, 2006
Page 2 of 5
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AS5\llnpnons:
Tbe proposed budget is predicated on tbe on-gIDmg BmTovrmg Owlibtmow :Sli.l!veys at Dttbful
K!Il1Ch.. the adjacent property as some coSts are slurred.
If O\\:us are fOlUl,CI, tbispropo.serl budget d.oeli not mclmie COllfilutatiml with the California
Depmtmelltof Fish -and Gall'.e to remove tbeowIs ([1' the actl;i1ries specilkally as:ro;:iated with
fuat removal
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates --Exhibit A
November 7, 2006
Page 3 of 5
H.XHARVEY 4: .4SljOClATBS
liX,Y)UX;lC/i/, CONSU1:rAN.l:<;
pf'(Jject Nf1Jlu: Fall11u Spl'Ht$ Pttrkl1l!trmving O.rl/Bim'ow Sllrt'~'$ 7
~\'th' Of, ttl Ii NOl' Qf!
PropesttlNtHlf8er; 4$67
.Project .1'V11liIDey;
Date: 16 Silptl1moer J(JfJl;i
*\.l\"NC.u' PROJECT DtJDGtt
I.Pt'I'$oul1el C05.t$
Prot'&sslwmls'mW
Seott r mill
Steve Rottenbom
Julie 1llingm.'l.I:tU
Steve Car. uter
Graphic/GIS
Su on
Hottl'S
1# S
Subttlml
Subtotal:
Tornl
IS5
320
2.970
21~72(l
U69
187
2,056
~In. Total Budget
$ 34,991 ~
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates --Exhibit A
November 7, 2006
Page 4 of 5
ii/I: NA.RVJ'il' &. ,-L'iSlJCJM'i-:S
OU/CAt. CON.<ilH,'fAN'J:r,;,
PrejtJtl f\'a1l1i": F411ell S}ItMt p(Jf:ft B<<rrowiut O1I'MBlm'J>>p$ttNo).r 7 i'..~,. tJ(j Ie (; Nfh' ql)
PrcPMlll NlCmJ;.,r: 4867
[;gre: 1{'; Se}iUimtb.'ir 29fJ6
Task
Ta>1l LSUf"t!v.
Ta>1l2 fU.l1itAl Rwovafr
1M! 3. M,,::.thlv it .(lIt
Tol::l
DjrfctCIt~t., (UlU.agt, plillriillg. ft(.)
1'O:tA.t atrl:lGZT
Al1ItllalPUMllIlt.ll'101il"t lw Ta1k
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~ ;ii
it~ :$
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$
s
1,;;'35
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~
JQS 16 ;i
Z~"1llJ S 1.440 5> 3(1(1 $
$
$
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates --Exhibit A
J:l.9},
""ose
$4.~j
November 7, 2006
Page 5 of 5
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EXHIBIT B
COMPENSATION SCHEDULE
Compensation shall be paid per the attached Fee Schedules entitled, "Fallon Sports Park
Burrowing Owl/Burrow Surveys" attached hereto
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates--Exhibit B
November 7,2006
Page 1 of 1
Fallon Sports Park Burrowing Owl/Burrow Surveys Fee Schedule
H.'!HARlt'EY" ASSOC1.4TES
Jf.COW01C,lL CtJlvSfJLli'L\'I'S
PI'.olessional Fees
r~t $dIm. JltJlJilU'j' L ~1j1fJQ
Pt;rsOlUltl CL1.sslficaUou
P~~l
HOUI~Il' BnJmt Rale
S lS5.1\.lt~
$ 160
$150
S 135
$125
2
$110
S 100
$90
'$ 75
Eco>>~istl
Fieilld BWlog".l$t 2
Fieid Biologist 1
$%
$75
S 60
Deposition and TesUmony
Two t'.mes Irulttda.Yd
SUDcontractural Con~ultants
Cost plus 10%
Direct E:q)enses
Tra:nS}'\Ortation
Co.t pItt, 10%
Cmnnt IRS Federal
Stand:mi ivlilellge Rate
ql
li"Oli}
Tmvel per diem (lltcost)
COmptlter Services
Field Equipment Operation
- $162iday
Variable
Variable
Consulting Services Agreement between
City of Dublin and H.T. Harvey & Associates--Exhibit B
;;23
November 7,2006
Page 2 of 2
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