HomeMy WebLinkAboutItem 4.02 AcousticalPlanConsult CTTY CLERK
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: May 18, 2004
SUBJECT: Establish Contract Services for an Acoustical Planning Consultant on an as
needed basis for services in the Community Development Department
(Report Prepared by d~eri Ram, Planning Manager) C~
ATTACHMENTS: 1. Resolution Approving Agreement with Rosen, Goldberg & Der
2. Consultant Agreement
RECOMMENDATION: 1. Receive Staff Report
2. Adopt Resolution approving Consulting Agreement for
on-call Acoustics Consultant
3. Authorize the Community Development Director to sign on behalf of
the City.
FINANCIAL All charges to be funded through direct developer fees for
STATEMENT: Major Planned Development applications or as approved Planning Division
budgetary projects in the adopted budget. Consultant services will be
budgeted within yearly budgets as anticipated.
DESCRIPTION:
During the past several years, the City Council has authorized Staff to hire outside consultants on an as
needed basis to assist with specific areas of technical expertise (CEQA, acoustics, biology, large scale
specific plans, design review, etc.) and overflow of work. The Community Development Department has
contracted with several consulting firms on a project-by-project basis with much success. Anticipated
workloads over the next several years dictate that this Department continue to retain consultant firms to
handle overflow work in these areas including the general processing of entitlements for development
projects, as well as plan checks and field checks for those projects.
Staff is recommending adding an Acoustics Consultant, Rosen Goldberg & Der, to the Community
Development Department's list of consultants. On occasion, Staff has' needed the assistance of an
Acoustical Consultant to assist in the review of documents submitted to the City from other agencies
(such as the Livermore Airport Expansion EIR). In addition, an acoustical study or test is periodical
needed as part of an environmental document prepared by the City. This type of work is highly technical
and special equipment and expertise is needed that a consultant can provide. Staff has utilized this firm
on seVeral occasions for specific work and has found them to be responsive and professional.
This typical contract contains provisions that the consultant will only perform work on a time and
material basis at the direction of the Community Development Director. No work will be done without
COPIES TO: Consultant
In-House DistribUtion
~O'~- ITEM NO. ~~
expressed permission and all costs will be charged to the Community Development Department budget in
accordance with costs associated with that project.
Again, as noted earlier, no work will be done or funds expended unless funding is available and it has
been determined that outside help is needed to meet a specific time objective. This standard contract is
similar in nature to the master contract that has been reviewed and approved by the City Attorney.
RECOMMENDATION:
Staff recommends that the City Council receive the Staff report, adopt Resolution approving the
Consulting Agreement with Rosen Goldberg and Der, Acoustics Consultant, and authorize the
Community Development Director to sign the agreement on behalf of the City.
G:agenda/2004/4-18/Rosen Goldberg & Der
RESOLUTION NO. - 04
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AGREEMENT WITH ROSEN GOLDBERG & DER,
ACOUSTICS CONSULTANT, ON AN AS NEEDED BASIS
IN THE COMMUNITY DEVELOPMENT DEPARTMENT
WHEREAS, the City of Dublin has determined that it is necessary to hire technical support to
provide Planning Consultant services including processing applications, plan checks and field checks of new
projects, and
WHEREAS, the City of Dublin Planning Commission and City Council has directed Staff to move
projects expeditiously, and hire consultant firms when services are needed; and
WHEREAS, the City has determined that in order to review and prepare environmental documents
and other studies, certain specialized studies need to be conducted; and
WHEREAS, the City needs specialized expertise in the area of acoustical consultanting services;
and
WHEREAS, Rosen Goldberg & Der has demonstrated they have adequate ability to perform the
acoustic services required; and
WHEREAS, consultants will only perform work on a time and material basis at the direction of the
Community Development Director; and
WHEREAS, all costs will be charged to the Community Development Dep~ent budget in
accordance with costs associated with certain projects; and
WHEREAS, the contracts have been reviewed and approved by the City Attomey's Office.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
approve the agreements with the above mentioned firms.
BE IT FURTHER RESOLVED that the Community Development Director is authorized to
execute the agreements.
PASSED, APPROVED AND ADOPTED this 18th day of May, 2004.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
off
City Clerk ATTACHMENT I
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
ROSEN GOLDBERG & DER
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Rosen Goldberg & Der (RGD) ("Consultant") as of May 18, 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 on the date of which services are no longer needed. 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 c°mplete 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 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 $90 per
hour 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 18, 2004
City of Dublin and Rosen Goldberg & Der Page 1 of 14
ATTACHNIEF T
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 18, 2004
City of Dublin and Rosen Goldberg & Der 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 the following fee schedule:
2.6 Reimbursable Expenses. Reimbursable expenses shall be included in the hourly rate
and not paid separately.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. in the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall~compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets in order to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever' under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost and expense, provide all facilities and equipment that may be necessary to perform the services
required by this Agreement. City shall make available to Consultant only the facilities and equipment listed
in this section, and only under the terms and conditions set forth herein.
City 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 except for
professional liability which shall be claims made 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
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 3 of 14
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this
section throughout the term of this Agreement. The cost of such insurance shall be included in the
Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence
thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement
prior to execution.
4,1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Compensation Insurance and Employer's Liability Insurance shall be provided with limits of
not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative,
Consultant may rely on a self-insurance program to meet those requirements, but only if
the program of self-insurance complies fully with the provisions of the California Labor
Code. Determination of whether a self-insurance program meets the standards of the
Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if
insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and
volunteers for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty (30) days' prior written
notice by certified mail, return receipt requested, has been given to the City.
- "' RGD represents that they have no non-owner employees and therefore, do not have
:-. Worker's Compensation Insurance. The City will accept a letter from RGD stating,
...... ~ therefore, that Worker's Compensation Insurance is not required by law.
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
Automobi!e 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.
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 4 of 14
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed. 1/73)
covering comprehensive General Liability and Insurance Services Office form
number GL 0404 covering Broad Form Comprehensive General Liability.
Automobile coverage shall be at least as broad as Insurance Services Office
Automobile Liability form CA 0001 (ed. 12J90) Code 8 and 9 (" hired and non-
owned autos"). No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered
as insureds with respect to each of the following: liability arising out of
activities performed by or on behalf of Consultant, inCluding the insured's
general supervision of Consultant; products and completed operations of
Consultant; premises owned, occupied, or used by Consultant; and
automobiles owned, leased, or used by the Consultant. The coverage
shall contain no special limitations on the scope of protection afforded to
City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not
on a claims-made basis.
c. An endorsement must state that coverage is primary insurance with
respect to the City and its officers, officials, employees and volunteers,
~ and that no insurance or self-insurance maintained by the City shall be
called upon to contribute to a loss under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the
policy shall not affect coverage provided to CITY and its officers,
employees, agents, and volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided,
canceled by either party, reduced in coverage or in limits, except after
thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City.
4.3 Professional 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.
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 5 of 14
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, canceled by either party,,
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 shall include coverage for contractual liability.
4.3.4 The following provisions shall apply if the professional liability coverages are
written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement or the
work, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another
claims-made policy form with a retroactive date that precedes the date of
this Agreement, Consultant must provide extended reporting coverage for
a minimum of five years after completion of the Agreement or the work.
The city shall have the right to exercise, at the Consultant's sole cost and
expense, any extended reporting provisions of the policy, if the Consultant
· cancels or does not renew the coverage.
, ~'~:: : . ~:.' .~::: d. A copy of the claim reporting requirements must be submitted to the City
prior to the commencement of any work under this Agreement.
4,4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of 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.
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 6 of 14
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 Beductibles 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.
Dudng the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles
or self-insured retentions with respect to City, its officers, employees, agents, and
volunteers. The Contract Administrator may condition approval of an increase in
deductible or self-insured retention levels with a requirement that Consultant
procure a bond, guaranteeing payment of losses and related investigations, claim
administration, and defense expenses that is satisfactory in all respects to each of
them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by
this section is reduced, limited, or materially affected in any other manner,
Consultant shall provide written notice to City at Consultant's earliest possible
opportunity and in no case later than five days after Consultant is notified of the
change in coverage.
.4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide
.... - . or maintain any insurance policies or policy endorsements to the extent and within the time
herein required, City may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies City may have and are not the exclusive remedy for
Consultant's breach:
· Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
· Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder, or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof; and/or
· Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall
indemnify, defend with counsel, 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
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 7 of 14
misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents. The
foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or
violation of law arises solely 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
:-~.i ~., ~. ~:: 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 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.
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 8 of 14
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall use due
professional care to 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
i , ~. ~, ~'., ~ ~':.~ basis of a person's'race, religion, color; national origin, age, physical or mental handicap or
· ": ~:. ~., ~ ~ : ,.. disability, medical condition, madtal 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 30 days' written notice to City and shall
include in such notice the reasons for cancellation.
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen G01dberg & Der Page 9 o[14
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have .no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 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
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 10 of 14
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that is unfinished at the time of breach and the amount that
City would have paid Consultant pursuant to Section 2 if Consultant had
completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications,
records, files, or any other documents or materials, in electronic or any other form, that
Consultant prepares or obtains pursuant to this Agreement and that relate to the matters
covered hereunder shall be the property of the City. Consultant hereby agrees to deliver
those documents to the City upon termination of the Agreement. It is understood and
agreed that the documents and other materials, including but not limited to those described
above, prepared pursuant to this Agreement are prepared specifically for the City and are
not necessarily suitable for any future or other use. City and Consultant agree that, until
final approval by City, all data, plans, specifications, reports and other documents are
confidential and will not be released to third parties without prior written consent of both
parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and alt 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
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 11 of 14
state courts of California in the County of Alameda or in the United States District Court for
the Northern Distdct of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place
Consultant in a "conflict of interest," as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. NO OffiCer or employee 0f City shall have anY financial interest in this '
Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the forming of this
Agreement. Consultant understands that, if this Agreement is made in violation of
Government Code {}1090 et. seq., the entire Agreement is void and Consultant will not be
entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any
sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to cdminal prosecution for a violation of Govemment 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.
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 12 of 14
10.9 Contract Administration. This Agreement shall be administered by Community
Development Director ("Contract Administrator"). All correspondence shall be directed to
or through the Contract Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to:
Alan Rosen
Rosen Goldberg & Der, Inc.
1100 Larkspur Landing Circle #354
Larkspur, CA 94939
tel: 415-464-0150; fax: 415-464-0155
arosen@rgdacoustics.com
Any written notice to City shall be sent to:
Community Development Director
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.11 Professional Seal. Where applicable in the determination of the contract administrator,
the first page of a technical report, first page of design specifications, and each page of
construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled
"Seal and Signature of Registered Professional with report/design responsibility," as in the
following example · "r ~ ~
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.
SIGNATURES ARE ON PAGE 14 OF 14
Consulting Services Agreement between May 18, 2004
City of Dublin and RoSen Goldberg & Der Page 13 of 14
CITY OF DUBLIN CONSULTANT
Richard C. Ambrose, City Manager Alan Rosen, Principal
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth H. Silver, City Attorney
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der Page 14 of 14
05/04/2004 TUE 14:35 [TX/RX NO 6366] ~003
EXHIBIT A
SCOPE OF SERVICES
Provide Acoustical testing, review potential noise impacts of projects and perform Noise Studies for the City
on an as-needed basis.
All services are to be performed at the direction of the Community Development Director or his/her
designee on an as needed basis.
Extension of Term
The term of this agreement shall be for an indefinite period of time until terminated by either party as
outlined in Section 8 of the Agreement.
Adjustment of Rates
Rates shall be paid as outlined in Exhibit B (Payment Schedule) of this agreement.
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der, Inc --Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed $90.00 per hour. In the event of a conflict
between this Agreement and Scope of Services, attached as Exhibit A, regarding the amount of
compensation, the Agreement shall prevail.
Consultant shall not bill for any reimbursable items unless previous approval has been granted.
City shall make no payment for any extra, further or additional service pursuant to this Agreement unless
such extra service and the price therefore is agreed to in writing executed by the City Manager or other
designated official of CITY authorized to obligate CITY thereto prior to the time such extra service is
rendered.
Consulting Services Agreement between May 18, 2004
City of Dublin and Rosen Goldberg & Der, Inc.--Exhibit B Page 1 of 1