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HomeMy WebLinkAboutItem 4.06 ShannonCtrGeotechSvcs CITY CLERK File # DI6J[O][OH3JC AGENDA STATEMENT CITY COUNCIL MEETING DATE: December 6, 2005 SUBJECT: Consultant Services for Geotechnical Engineering, Shannon Community Center. Report prepared hy: Hama Lichtenstein, Parkl' & Facilities Development Manager A TT ACHMENTS: I. Resolution Approving the Agreement with ENGEO Incorporated ~ ~ . Adopt Resolution approving Agreement RECOMMENDATION; FINANCIAL STATEMENT: The proposed fee for services under the Agreement is based on a not to exceed contract of $35,800. Available Budget Proposed Fee for Services $10,000 $35,800 Due to the seismic conditions at the Shannon Center site the fees are higher than originally budgeted. There are sufficient funds in the FY 2005-06 Budget to initiate the geotechnical investigation. Staff will adj ust the FY 2006-2007 Budget as necessary to provide for the increased cost. DESCRIPTION: At the August 16,2005 meeting the City Council awarded the design contract for the Shannon Community Center Project. As part of the design process the City had budgeted for Geotechnical Services. City Staff solicited Request for Proposals for geotechnical services in September of 2005. Six firms submitted proposals. The firms were ENGEO Incorporated, Berlogar Geotechnical Engineers, Kleinfeldcr Geotechnical Engineers, Terra Search Incorporated, Fuguro West Incorporated and MFG Incorporated. Based on the proposal and review of references Staff recommends ENGEO Incorporated. ENGEO Incorporated provided the City with the scope and qualifications that were most closely suited to the City's requirements for the project. Attachment I is a Resolution approving the Agreement between the City of Dublin and ENGEO Incorporated. The Consultant Services Agreement, whieh outlines the scope of work and fee schedule, is shown' as an attachment to the Resolution. Staff recommends that the City Council adopt the Resolution approving the Agreement. _____________.~w___~~______________________________~~_-___w~______________________·w_~___~_~.________________ COpy TO: ENGEOlnculJ'0rated ITEM NO. Lt.G Page I of I G:\COUNCIL\Agenda Statcmcnts\200S\12-1) ¡J.ngeo C()nlr!lct.dDC RESOLUTION NO. - 05 IOb\ì A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING AN AGREEMENT WITH THE ENGEO INCORPORATED FOR GEOTECHNICAL ENGINEERING SERVICES FOR THE SHANNON COMMUNITY CENTER WHEREAS, the City of Dublin has approved the replacement of the Shannon Community Center; and WHEREAS, the City has solicited requests for proposals for Geotechnical Engineering services for the Shannon Community Center; and WHEREAS, the City received six proposals for Geotechnical Engineering services and selected the ENGEO Incorporated; and WHEREAS, ENGEO Incorporated has demonstrated adequate ability to perform said Geotechnical Engineering services; and WHEREAS, consultant is available to perform work as specified; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does approve the agreement with ENGEO Incorporated, attached hereto. PASSED, APPROVED AND ADOPTED this day of ,2005. AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk ATTACHMENT 1 L..L 4? ¡I-to-OS'" 2°b\1 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND ENGEO Incorporated THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and ENGEO Incorporated ("Consultant") as of December 5, 2005. 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 at the final acceptance of construction of the Shannon Center Project 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 Consuitant's profession, 1.3 AssiQnment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1,1 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $35,800, notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit A. regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person, Consuiting Services Agreement between City of Dublin and ENGEO Incorporated Page 1 of 13 ~ ~\.., Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's 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. Notwithstanding the "not to exceed" compensation amount in the preceding paragraph, the Contract Administrator may authorize payment above the "not to exceed" amount to allow Consultant to provide additional services, or, to compensate Consultant for services provided within the original scope of work in excess of the hours specified in Exhibit A. In no event, however, shall the Contract Administrator authorize payment of such additional payments in excess of 10% of the "not to exceed" amount. 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date, Invoices shall contain the following information: · Serial identifications of progress bills; i.e., Progress Bill No.1 for the first invoice, etc.; · The beginning and ending dates of the billing period; · A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; · At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; · The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A; · The Consultant's signature. 2.2 Monthlv Pavment. 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 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within sixty (60) days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed. 2.4 Total Payment. 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 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. Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page 2 of 13 Ù¡ Db Iì In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule in Exhibit B: 2.6 Reimbursable Expenses. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination, Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City 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 Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page 3 of 13 5 Db\1 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 Liability Insurance. 4.2.1 General reaulrements, 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 there from, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non" owned automobiles, 4.2.2 Minimum sCODe of coveraae. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed. 11/88) or Insurance Services Office form number Gl 0002 (ed. 1173) covering comprehensive General Liability and Insurance Services Office form number Gl 0404 covering Broad Form Comprehensive General Liabiiity, 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. Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page 4 of 13 (a°òn 4.2,3 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a, City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. c. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self-insurance maintained by the City shall be called upon to contribute to a loss under the coverage. d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall not affect coverage provided to CITY and its officers, employees, agents, and volunteers, e. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City, Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.3 Professional Liabilitv Insurance. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MilLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions, 4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim 4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City, 4.3.3 The policy must contain a cross liability or severability of interest clause. Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page 5 of 13 1Db\ Î 4.3.4 The following provisions shall apply if the professional liability coverages are written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prtor to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptabllltv 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 COver8Qe. Prior to beginning any work under this Agreement, Consultant shall furnish City with certificates of insurance and with original endorsements effecting coverage required herein, The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf, The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4,4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page 6 of 13 '2.. Db \Î 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 CoveraCle. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: . Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; . Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or · Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES, Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law, It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the Califomia 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 ENGEO Incorporated Page 7 of 13 G\Db\í 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 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 Governlna Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Reaulations. To the extent that this Agreernent 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 ENGEO Incorporated Page 8 of 13 \0 00 \í 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the 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 term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and EQual Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, coior, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon ten days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page 9 of 13 \\~\ 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 ODtions UDon Breach bv Consultant. if Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City, Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page100f13 \7..~\1 confidential and will not be released to third parties without prior written consent of both parties. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County Alameda or in the United States District Court for the Ninth District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assiclns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page 11 of13 I "Ò0t} 1 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper, 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Govemment Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services pertormed 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 criminai prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by; Herma Lichtenstein, Parks and Facilities Development Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Apostolos Kosompolls 2010 Crow Canyon Place Suite 250 San Ramon, CA 94583 Office 925-866-9000 Ex!. 279 Fax 925-866-0199 Any written notice to City shall be sent to: Herma Lichtenstein, Parks and Facilities Development Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page 12 of 13 \~ Db \I 10,11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Seal and Signature of Registered Professional with report/design responsibility. 10.12 InteQratlon. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. CITY OF DUBLIN CONSULTANT JANET LOCKHART, MAYOR DONALD BRUGGERS Attest: FAWN HOLMAN, City Clerk J;lwpdIFORMSIAGRElslandard consullan! services agr..men!.2001.doc Consulting Services Agreement between City of Dublin and ENGEO Incorporated Page 13 of 13 \5' O()\Î EXHIBIT A SCOPE OF SERVICES Geotcchnieal Exploration and Recommendations Our proposed scope for the geotechnical exploration includes a review of available literature, geologic maps, and geotechnical reports pertinent to the site; a limited field exploration with collection of soil samples; laboratory testing and analysis of collected samples; and preparation of a preliminary geotechnical report. As directed in the request for proposals, subsurface conditions will be explored by drilling 7 test borings ranging in depth from approximately 10 to 50 feet (Figure I). Four of the borings will be drilled at or near the loeations shown on the plan which was attached to the request for proposals. The locations of the remaining borings will be determined based on the proposed improvements configuration and existing features and discussion with City persormel. Depending on the accessibility of the site and subsurface conditions, Cone Penetrometers Tests (CPl) may be used to supplement the test borings. CPT involves advancing an electronic device into the ground and measuring the tip resistance to penetration of the cone (Qc), the resistance of the surface sleeve (Fs), and pore pressure (U). This information is used to d<:velop a continuous soil profile throughout the depth explored. The borings and CPTs will be backfilled in accordance with City of Dublin requirements. An ENGEO geologist or engineer will observe the drilling operations and log the subsurface conditions encountered. Soil samples will be taken at fiequent intervals for visual classification and laboratory testing. The samples will be reexamined in our laboratory to verify field classifications and will be tested for strength and consolidation properties, moisture content, dry unit weight, Plasticity Index, gradation, hydrometer, and other physical and mechanical properties, as appropriate. Chemical testing for sulfate content of the site soils for corrosion potential on foundation concrete will also be provided. The boring and/or CPT information will be used to provide grading recommendations for fill placement and compaction. In addition, we will evaluate the liquefaction potential of granular layers that possibly underlie the site. We will also provide preliminary foundation recommendations for the proposed Shannon Community Center buildings. Fault Studv State guidelines tor studies of active faults require that the potential for surface fault rupture be evaluated for proposed new construction of habitable structures. Fault traces with demonstrable Holocene or younger displacement (within the last 11,000 years) are considered "active" and capable of producing damaging surface rupture. The main active trace of the Calaveras Fault is thought to lie just east of the City property (Figure 2). However, it is possible that undiscovered secondary active traces may lie west of the fault. Surface fault rupture hazards arc normally mitigated by creating Consulting Services Agreement between City of Dublin and ENGEO Inc.--Exhibit A Page 1 of 2 December 5, 2005 \L9 Db'! bnilding setbacks around active fault traces. Typically a 50-foot setback width is used for major fault traces such as the mapped trace east ofthe City property. Within the limits of State hazard zones, surface rupture hazards are typically evaluated by excavating trenches across the width of the proposed development. When fault traces are encountered, the age of faulting is typically evaluated by estimation of the age surface soils overlying the trace. The science of age-dating based on soil development is known as pedochronology, and is typically practiced by specialized consultants. ENGEQ has typically subcontracted such work to a well-known local specialist, Mr. Glen Borehardt of Soil Tectonics. Contingencies for additional trenehing and subconsultant fees are provided. We propose to explore the potential for surface rupture via logging an exploratory trench. The trench will be located 20 to 30 feet north of the existing building and will have a general east-west direction (Figure 1). The trench walls will be cleaned of smeared material and the face will be logged by ENGEQ engineering geologists under the supervision of the project Certified Engineering Geologist. The walls will be examined for evidence of fault-related displacement. If fault displacement is noted in the trench walls it may be necessary to excavate an additional short trench(es) along the trend of faulting in the open area near the north property line where undisturbed natural soils still mantle the surface. The intent of the subsurface work will be to a) explore for secondary fault traces along the proposed building location and b) extend the exploratory trench as far as possible to the east (estimated at 40 to 50 feet) in order to provide the maximum possible clearance from the known trace of the Calaveras Fault. The extent of eastward exploration will be limited by an existing wall at the edge of the paved area. Based on available information, it appears likely that the active trace of the Calaveras Fault is east of City Property. However, in the event that active secondary are discovered, ENGEO will provide appropriate recommendations for fault setbacks. Prior to excavation we will hire a subcontractor to locate and mark underground utilities. It is estimated that the trench will be approximately 350 feet long, 2 feet wide and 8 feet deep. The location of the trench and any encountered fault traces should be field surveyed. The excavation will require destruction of some of the existing pavement and walkway improvements. After logging, the trench will be backfilled with minimal compactive effort for most of the length. It is our understanding that the City wishes to maintain access to the upper parking lot. We therefore propose to compact a 20-t030-foot-wide section of the trench at the east end and to apply cold patch asphalt to the area to provide an access corridor. Due to the expected extent of demolition of existing improvements and re~grading of the building pad that this project will ultimately require, we expect that it will be significantly more eost-effective to compact the trench backfill again at a later date. Consulting Services Agreement between City of Dublin and ENGEO Inc.--Exhibit A Page 2 of 2 December 5, 2005 \l~n EXHIBIT B COMPENSATION SCHEDULE Field Exploration Utility Clearance and Permitting Test Borings Fault Hazard Exploration Excavation of additional short trenches and retention of Soil Tectonics in the event fault traces are encountered in the building vicinity Subtotal $ 1,000.00 $ 6,800.00 $ 12,500.00 $ 3,000.00 $ 23,300.00 Laboratory Testing $ 2,000.00 Drafting, Analysis and Report TOTAL $ 5.500.00 $ 30,800.00 In the event that it is preferred that the entire excavation be compacted and tested under engineering observation, the associated additional cost is estimated to be $5,000 which includes soil compaetion, engineering testing, laboratory testing and compaction test data report. As described above, field location of the trench(es) and any encountered fault traces will require a surveyor. We anticipate that survey location services will be provided by the City. J:\wpdIFORMSIAGRElatandard consultant ,ervices agreernent-2001.doc Consulting Services Agreement between City of Dublin and ENGEO Inc.--Exhibit B Page 1 of 1 December 5, 2005