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HomeMy WebLinkAboutItem 4.04 GeotechTestFallonPark CITY CLERK File# ll~ I[_~r~-~_J[~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: May 4, 2004 SUBJECT: Consultant Services for Geotechnical Testing, Fallon Sports Park Report prepared by: Herma Lichtenstein, Parks & Facilities Development Manager ATTACHMENTS: 1. Resolution Approving the Agreement with Kleinfelder Associates, Geotechnical Engineers ~~Adopt Resolution apprcving Agreement RECOMMENDATION: FINANCIAL STATEMENT: The proposed fee for services under the Agreement is based on a not to exceed amount of $14,000. There are sufficient funds within the Fallon Sports Park proj~ct budget to execute the Agreement. DESCRIPTION: At the February 2, 2£04 meeting the City Council awarded the Design Services for the Fallon Sports Park Project and auth(~rized staff to begin the Master Plan. As part of the planning process the City required the design consulta~ ~t to prepare a preliminary mass grading plan to allow for excess fill from surrounding developments to b s used on the sports park site. Geotechnical recommendations for drainage and compaction will be requir,-d for the developer to place the excess fill in a proper manner. Kleinfelder Associates, Geotechnical Engineers has provided ongoing engineering services for the City on past projects and can provide oversight for the developer prepared baseline Geotechnical Report which is being used for the overall Dublin Ranch Development. Attachment 1 is a Resolution approving the Agreement l:etween the City of Dublin and Kleinfelder Associates Geotechnical Engineers. The Consultant Services ~kgreement, which outlines the scope of work and fee schedule, is shown as an attachment to the Resoluti >n. Staff recommends that the City Council adopt the Resolution approving the Agreement. COPIES TO: I<2leinfelder Geotechnical Engineen j ,a ~/~ [ ITEM NO. l:\COUNCILkAgenda Statementsk200~\S-4 kl¢infeldcr ¢ont.do¢ ~ RESOLUTION NO. - 04 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AN AGREEMENT WITH KELINFELDER ASSOCIATES, GEOTECHNICAL CONSULTANTS FOR GEOTECHNICAL TESTING SERVICES FOR THE FALLON SPORTS PARK WHEREAS, the City of Dublin has approved the design services for a master plan and proposed mass grading for the Fallon Sports Park Project; and WHEREAS, the design for the mass grading of the Sports Park will require Geotechnical recommendations for proper engineering; and WHEREAS, the City has solicited a request for proposals for geotechnical engineering services for the Fallon Sports Park; and WHEREAS, the City has received a proposal for geotechnical engineering services; and WHEREAS, Kleinfelder Associates, Geotechnical Engineers has demonstrated they have adequate ability to perform said services; and WHEREAS, consultants are 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 the Kleinfelder Associates, Geotechnical Engineers, attached hereto. PASSED, APPROVED AND ADOPTED this 4th day of May 2004 AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST:. City Clerk ATTACHMENT 1 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND KLEINFELDER, INC. THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Kleinfelder, Inc ("Consultant") for Geotechnical Engineering services for the Fallon Sports Park as of May ,2004. Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall end upon acceptance of the completed scope of services, 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 Assignment 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 service~ 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 $14,000, notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments speCified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 1 of 14 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. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information: · Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; · The beginning and ending dates of the billing period; · A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; · At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; · The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours, 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 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 Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 2 of 14 incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on Exhibit B. 2.6 Reimbursable Expenses. ReimburSable expenses are specified in Exhibit B. 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 10gs 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 Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 3 of 14 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 Liability Insurance. 4.2.1 General requirements, Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non- owned automobiles. 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance Services Office Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 4 of 14 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 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 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) Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 5 of 14 days' prior written notice by certified mail, return receipt requested, has been given to the City. 4,3.3 The policy must contain a cross liability or severability of interest clause. 4.3.4 The following provisions shall apply if the professional liability coverages are written on a claims-made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim'reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4,4 All Policies Requirements. 4.4.'1Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of coverage. Prior to beginning any work under this Agreement, Consultant shall 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 Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 6 of 14 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 byany term of this Agreement. During the period covered by this Agreement, only upon the pdor express written authorization of Contract Administrator, Consultant may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Consultant procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's eadiest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.$ Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: · Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; · Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or · Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 7 of 14 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 but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement toany contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 8 of 14 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 7 days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 9 of 14 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 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but nOt be limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 10 of 14 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 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 Northern District of California. 10.3 Severabilit¥. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page11 of 14 adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California 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 Govemment Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et. seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California, 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by, Herma Lichtenstein ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 12 of 14 10.10 Notices. Any written notice to Consultant shall be sent to: Kleinfelder, Inc. 7133 Koll Center Parkway, Suite 100 Pleasanton, California 94566 Attention: Sadek Derrega Any written notice to City shall be sent to: City of Dublin 100 Civic Plaza ' Dublin, California 94568 Attention: Herma L!chtenstein, Parks & Facilities Development Manager 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 Integration. This Agreement, including the scope of WOrk attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 13 of 14 CITY OF DUBLIN CONSULTANT Janet Lockhart, Mayor Michael F. Majchrzak, Bay Area Regional Manager Attest: Kay Keck, City Clerk Approved as to Form: Elizabeth Silver, City Attorney J:\wpd\FORMS~AGRE~standard consultant services agmement-2001.doc Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc Page 14 of 14 EXHIBIT A SCOPE OF SERVICES The purpose of Consultants investigation will be to evaluate the existing site conditions and topography and to provide geotechnical recommendations pertaining to site preparation, grading (cut and fill), and surface and subsurface drainage. Relatively deep and localized soil zones, adverse bedding conditions in cut areas, and landslide deposits will also be identified and remediation measures developed if they potentially pose adverse conditions to the planned project. Recommendations will be developed based on the existing subsurface data by BGC, Consultants site reconnaissance, and Consultant's experience. No additional site investigation or laboratory testing is currently planned. The total compensation for the scope of services will be a not to exceed sum of $14,000. The scope of Consultant's services will include the following tasks: 1. Reviewing available unpublished and published geologic reports and maps covering the site and vicinity; 2. Performing a site reconnaissance where pertinent geologic and topographic features will be identified and mapped by our Certified Engineering Geologist; 3. Consulting with the City, their civil engineer and the park architect regarding geotechnical concerns related to site grading; 4. Reviewing the final grading plan, evaluating the proposed grading scheme and development of a remedial grading plan; and 5. Preparation of. a geotechnical engineering report that will present conclusions and recommendations as they pertain to earthwork and grading, slope instabilities and landslides, fill and cut slope construction, keyway and subdrain construction, and cut slope repairs. Task 1 Review of Available Geotechnical and Geologic Data Consultant proposes to review available geotechnical and geologic literature for the site area and vicinity. This review will focus on soil/rock and groundwater conditions encountered during the site-specific study prepared by BGC in 1999 and on nearby projects to attain a better understanding of the site conditions and to help provide geotechnical recommendations for the subject project. Task 2 Site Reconnaissance A site reconnaissance will be performed by Consultant's CEG to help evaluate current site conditions and to observe areas where proposed cuts and fills will be made. The current site conditions will be compared with those reported by BGC in their 1999 report to ascertain that the mapped slope instabilities have not enlarged or that new ones have not occurred since 1999. Surface mapping will be done on a topographic base that will permit sufficient detail. Consultant does not plan to perform any subsurface exploration or Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc--Exhibit A Page 1 of 2 laboratory testing as part of our currently proposed scope of work. Consultant isof the preliminary opinion that the BGC exploration points advanced and excavated at the site will suffice. Task 3 Consultation Regarding Geotechnical Concerns Following data review and site reconnaissance, Consultant will develop a list of geotechnical concerns for site earthwork and preliminary site preparation and compaction recommendations. Consultant will present its evaluation to the City and its civil engineer and landscape architect at a meeting. The purpose of the meeting is to brief the City and designers on relevant issues to guide them in their site development plans. A summary of the meeting and initial recommendations will be provided. Task 3 Grading Plan Review and Data Evaluation Consultant proposes to perform a detailed review of the grading plans once a final grading scheme has been selected. Areas and magnitude of proposed fills and cuts will be identified and structural cross sections developed where deemed needed. Based on the generated information and utilizing the subsurface conditions from the BGC 1999 study, a remedial grading plan will be developed for the site. The remedial grading plan will include locations of and geometry of keyways and buttress fills, subdrain pipes with invert elevations and tie-in points, areas where cut slopes may require reconstruction will also be identified, keyway and subdrain details, drainage bench locations (if needed), landslide, colluvial and soft sediment removal from proposed fill areas will also be shown. Task 4 Report Preparation Using the results of literature research, site reconnaissance and grading plan review, Consultant will evaluate the generated data to develop criteria and recommendations for grading and associated earthwork, landslide removal/repair, and surficial and subsurface drainage. Trench backfill recommendations for the proposed 54-inch storm drain line will also be included. Consultant's report will be prepared under the supervision of a Certified Engineering Geologist and Registered Geotechnical Engineer. At this time, Consultant anticipates that the report will include the following items: Vicinity map and site plan showing the approximate limits of the site; Geologic map covering the site area; Discussion of general site conditions; · A remedial grading plan summarizing grading and earthwork recommendations in addition to showing locationS of keyways and subdrain lines; Discussion of general subsUrface conditions as identified by BGC in 1999; Recommendations for grading and earthwork with emphasis on engineered fill placement and compaction; and · Discussion of construction considerations, specifically those pertaining to keyways, fill buttresses, and subdrain construction. Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc-Exhibit A Page 2 of 2 EXHIBIT B COMPENSATION SCHEDULE Classification Annual Rate Principal Professional $192,99 Senior Project Manager $171.00 Senior Professional $161.00 Project Manager II $151.00 Project Manager I $146.00 Project Professional $140.00 Staff Professional II $129.00 Staff Professional I $115.00 Professional II $103.00 Professional I $98.00 CADD Operator $90.00 Supervisory Technician $96.00 Draftsperson $78.00 Senior Technician $98.00 Technician III $88.00 Technician II $78.00 Technician I $73.00 Administrative/Word Processor $68.00 Outside Services Cost + 15% Mileage $0.58/mile J:\wp(AFORMS~AGRBstandard consultant services agreement-2001.doc Consulting Services Agreement between May 2004 City of Dublin and Kleinfelder, Inc--Exhibit B Page 1 of 1