Loading...
HomeMy WebLinkAboutItem 4.04 AgmtUngo-McCormickCTTY CLERK File # AGENDA STATEMENT CITY COUNCIL MEETING DATE: December 2, 2003 SUBJECT: Amendment to Agreement with Deborah Ungo-McCormick for Planning Services (Report Prepared by Eddie Peabody, Jr., Community Development Director) ATTACHMENTS: 1) Resolution Approving amendment to the existing Agreement with Deborah Ungo-McCormick 2. Current Agreement 3. Amendment to the Agreement (lqay 6, 2003) RECOMMENDA~ FINANCIAL STATEMENT: 1) Adopt Resolution approving amendment for on-call Planning Consultant 2) Authorize the Community Development Director to sign on behalf of the City. Services are proposed to be provided on a time and material basis. Charges for service will either be funded through direct developer fees for Major Planned Development applications or as approved Planning Division budgetary projects in the adopted budget. No rate change is proposed at this time. DESCRIPTION: In December 2001, the City contracted with Deborah Ung0-McCormick for on-call professional planning services and Staff support in the area of private development review with a two-year contract term and a yearly amount not to exceed $50,000. In May 2003, the City modified the hourly rate for the services provided under this agreement. Staff is recommending the extension of Ms. Ungo-McCormick's contract for an indefinite period of time on a time and material basis. With several large projects such as Greenbriar Phase III, two large Bancor projects, one at Alcosta and one at the old Pac-N-Save site and other large developments anticipated to begin construction, the need for this type of service continues to be high, therefore requiring staff to seek additional services in order to keep up with the planning activities. SUMMARY: 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 expressed permission and all costs will be charged to the Community Development Department budget in accordance with costs associated with that project. COPIES TO: ConsUltant ITEM NO. RECOMMENDATION: Staff recommends that the City Council receives the staff report, adopt ReSolution approving the amendment to the Consulting Agreement and authorize the Community Development Director to sign the agreement on behalf of the City. G:agenda/2003/cc sr 12-2 Ungo-McCormick RESOLUTION NO. - 03 A RESOLUTION OF THE CiTY COUNCIL OF THE CITY OF DUBLIN APPROVING AN AMENDMENT TO AGREEMENT WITH DEBORAH UNGO-MCCORMICK WHEREAs, the City of Dublin (hereinafter referred to as "CITY") and Deborah Ungo- McCormick (hereinafter referred to as "CONSULTANT'), entered into an agreement on December 1, 2001, to provide Planning and other development services to CITY; and WHEREAS, the City and the Consultant are desirous of continuing the agreement for an indefinite period of time; and WHEREAS, the CONSULTANT agrees to continue performing services at the rote outlined in Exhibit B (revised July 1, 2003) of the contract; and WHEREAS, all services performed by this CONSULTANT are performed at the direction of the Community Development Director on an as needed basis; and NOW THEREFORE BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the amendment to the agreement with Deborah Ungo-McCormick which is attached hereto as "Exhibit A;,',',, BE IT FURTHER RESOLVED that the Community Development Director is authorized to execute the agreement. PASSED, APPROVED AND ADOPTED this 2ad day of December, 2003. AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mayor City Clerk KZ/Gil2.2.03/reso.ungo.me¢ormiek.do¢ (Item 4.4) ATTACHMENT 1 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY' OF DUBLIN AND DEBORAH UNGO.McCORMICK THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Deborah Ung.o-McCormick, AICP ("Consultant") as of December I, 2001. 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 betweemthe terms of this Agreement and' Exhibit A, the Agreement shall prevail. 1.1 Term of So.ices.., .The term of: this:Agreementshalt begin ..,on the date first noted above and shall end on December 1,2003, the date of completion specified in Exhibit A, and Consultant shall complete the work described in Exhibit A. prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the'services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8, 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the. manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the g~ographica[ 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 servicespursuant to this Agreement. In the event that City, in its sole discretion, at any ti me dudng 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 Consultanta sU~ not to e'~ceed $50,000 per fiscal' Year at a':"¢~(e hi3'( to exce'ed $'8'5'100 p~r. hour, not~iti~stan~'in~' ar~; 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 (o 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 servia:es rendered' pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Consulting Services Agreement between December 1, 2001 City of Dublin and Deborah Ungo-McCormick Page 1 of 15 ATTACHMENT C~nsultant and City acknOWledge and agree that compensation paid by City to Consul'~ant' 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 tlierefore 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, Invoices shall contain the following information: · Serial identifications of progress bills; i.e.,.Progress Bill No. 1 for the first invoice, etc.; · A Task Summary that shows what services were performed · The finance control number for each project · The beginning and ending dates of the billing period; · The total.number of hours of work performed under the Agreement by. Consultant, as well as a separate notice'when the total number of.hours of work by Consultant and an.y individua~ 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 hourly rate · The Consultant's signature. 2.2 2.3 Monthly Payment. City shall make monthlY payments, based on invoices received, for services satisfactorily performed and for pre-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, 2.4 Total Payment, City shall pay for: the services to be rendered by Consultant pursuant to this Agreement at the rate of $85 per hour. City shall not' pay any additional sum for any expense or cost whatsoever incurred by ConsUltant in rendering services pursuant to this A.qreement. City shall make nc.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~)f compensation provided above either for a task or for the entire Agreement, unless'the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. Consulting Services Agreement between December 1, 2001 City 0f Dublin and Deborah Ungo-McCormick Page 2 of 15 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: Reimbursable Exoenses. 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, tn the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall, compensate the COnsultant for all outstanding costs 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 c{Jsts incurred to that date. 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 or their designee. 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 fumis'h physisal 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 inthe 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 Consultan('s bid. Consultant shall not allow any subCOntractor to commence work on any subcontract until Consultant'has obtained all insurance required herein for the . subCOntractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consulting Services Agreement between.. December 1,2001 City of Dublin and Deborah Ungo-McCormick · Page 3 of 15 4.1 4.2 Wo~'kers' Compeneation, Consultant shall, at its sole cost and expense, maintain Statutory Worker¢ Compensation Insurance and Employer's Liability Insurance for any and all persons empbyed directly or indirectly by Consultant. The Statutory Workers' Compensation insurance and Em¢oyer's Liability. Insurance shall be provided with limits of not [ess 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 ali rights of subrogation against the City and its officers, offidais, 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. 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 tess 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 occSrrence 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 IViinimum 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. 12/90) Code 1 ("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: Consulting Services Agreement between December 1, 2001 City of Dublin and Deborah Ungo-McCormick Page 4 of 15 4.3 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 ~)wned, 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. The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis. 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. 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. An endorsement shalt state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or [n limits, except'after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 4.3.2 4.3.3 Consulting Services Agreement between December 1, 2001 City of Dublin and Deborah Ungo-McCormick Page 5 of 15 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 tess than A:VII. 4.4.2 Verification of coverage. Prior'to beginning any work under this Agreement, Consultant shall furnish City with certificates 0f insurance and with odginal endorSements effe~l~ihg cover:age reqUired h6reiifl', The certifiC'~ites and endorsements for each insurance po!icy are'to be signed by a person authorized by that insurer to bind coverage on itsbehalf. The City reserves the right to require compbte,.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 shatl 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 calied for by any term of this Agreement. Consulting Services Agreement between December 1, 2001 City of Dublin and Deborah Ungo-McCormick Page 6 of 15 4,5 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 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 Consqltant is notified of the change in coverage, .Remedies. tn addition to any other remedies City may have if Consultant fails t~) provide or maintain any insurance policies or potiCy 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 ~vithhold 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 iniury, 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, o~' agents, by acts for which they could be held strictly liable, or by the quality or character of;~heir work. The foregoing 5bligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of taw 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, dam~ige 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 Consulting Services Agreement between City of Dublin and Deborah Ungo-McCormick December 1, 20.01 · Page 7 of 15 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 poiicies'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 anemptoyee 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 dudng 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, taw,.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 autho'rity, express or implied, to act on behalf of City in any capacity whatsoever as an agent, consultant shall have no authority, express or implied, puhsuant 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. 7.2 7.3 Compliance with Applicable Laws. Consultant and any subcontractors, shalt comply with all laws applicable to the performance of the work hereunder. 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 al! applicable rules and regulations to which City is bound by the terms of such fiscal assistance program, Consulting Services Agreement between' December 1,2001 City of Dublin and Deborah Ungo-McCormick Page 8 of 15 7,4 Licenses and Permits. Consultant represents and warrants to City that Consultant and [ts employees, agents; and any subcontractors have alt 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 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, co[or, 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 ail applicable federal, state, and focat 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 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 exclus ve.'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 authori'zed by the Contract Administrator, City shall-have no ConSulting Services· Agreement between December 1,200t City of Dublin and Deborah Ungo-McCormic.k Page 9 of I5 8.3 8,4 8.6 Section 9. '9.1 obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period, Amendments. The parties may amend this Agreement only by a writing signed by ali the parties. Assignment and Subcontracting. City and Consultant recognize and agree that this Ag reement 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 br entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agree.~nt 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, Survival. Ail obligations arising pdor to the termination of this Agreement and all provisions of this Agreement allocating liabiti'ty between City and Consultant shall survive the termination of this Agreement, 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 8,6,3 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this. Agreement; 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, KEEPING AND STATUS OF RECORDS, Records Created as Part of Consultant's Performance, All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, flies, 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 Consulting Services Agreement between City of Dublin and Deborah Ungo-McCormick December 1, 2001 Page 10 of 15 9.2 9.3 Section 10 10,1 10.2 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 ag roe that, until final approval by City, all data, plans, specifications, reports and otherdocuments are confidential and will not be released to third parties without prior written consent of both parties. 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 pedod required by taw, from the date of final payment to the' Consultant to this Agreement. 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 0ral 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. MISCELLANEOUS PROVISIONS. Attorneys' Fees. If a party to this Agreement brings any action, including an action for declarato~..reli~f, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitt~d 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. Venue. In the event that either party.brings any action against the other under this ~,greement, the parties agree that trial of such action'shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. "' 10,3 10.4 Seve'rability, If a cour~ 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 t~e validity of any Other prowsion of this Agreement. 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. Consulting Services Agreement between December 1, 2001 City of Dublin and Deborah Ungo-McCormick Page 11 of 15 10.5 10,6 10.7 10.8 1.0.9 Successors and Assigns,. The provis'~ons of this Agreement shall inure to the benefit of and shall apply'to and bind the successors and assigns of the parties. Use of Recycled Products, Consultant shall prepare and submit all reports, wdAen studies and other printed material on recycled paper to the extent it is_ av. aiJabJ, e at equal or tess cost than virgin paper, Conflict of interest. Consultant may serve other clients, but.none whose activities wfthin 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 sec~. 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 performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reim:)urse the City for any sums paid to the Consultant. Consultant 'understands that, in addition to the fo?going, it may be subject to criminal prosecution f0'r a violation of Government. Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California. 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. Contract Administration. This Agreement shall be administered by Eddie Peabody, Jr., 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: Deborah Ungo-McCormick, AICP 1057 Glen Echo Avenue San Jose, CA 95125-4316 Consulting Services Agreement between December 1, 2001 City of Dublin and Deborah Ungo-McCormick Page 12 of 15 10.11 Any wdtten notice to City shalt be sent to: City of Dublin Attn: Community Development Director 100 Civic Plaza Dublin, CA 94568 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. Seat and Signature of Registered Pro~ssional with report/design responsibility. t0.t2 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. CONSULTANT Deborah Ung~:~:lVlc~omick, AICP Attest: Kay-'~e~ /~ty Clerk ~ Approve ~s to Form: ' Elizabeth H, Silver, City Attorney G:oorresptGaylene/oontraot for Deborah MoO°rmiok Consulting Services Agreement between December 1, 2001 City of Dublin and Deborah Ungo-McCormick Page 13 of 15 EXHIBIT A SCOPE OF SERVICES Providing of Planning and other development services and/or Biological consulting services to the City of DUblin regarding: · Processing of development entitlements · Conducting biological surveys as may be required in conjunction with development entitlements Said services shall not exceed the sum of $50,000 per fiscal year and are to be performed at the direction of the Community Development Director on an as needed basis. The term of this contract shall commence on December 1, 2001 and terminate on December 1, 2003. Consulting Services Agreement between City of Dublin and Deborah Ungo-McCormick Decembei' 1, 2001 Page t4 of 15 EXHIBIT B COMPENSATION SCHEDULE City hereby agrees to pay Consultant a sum not to exceed $50,000 per fiscal year at a rate not to exceed $85.00 per hour. 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. ConSultant shall not bill for any reimbursable items unless previous' appr. oval has been granted. Consulting Se trices Agreement between City of Dublin and Deborah Ungo-McCormick December 1,2001 Page 15 of 15 RESOLUTION NO. 79 L 03 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING FEE AMENDMENTS FOR APPROVED AGREEMENTS WITH CONSULTANTS ON AN AS NEEDED BASIS FOR OVERFLOW SERVICES IN THE COMMUNITY DEVELOPMENT DEPARTMENT RELATED TO PRIVATE DEVELOPMENT PROJECTS WHEREAS, the City of Dublin is experiencing significant increases in new development applicationS; and WHEREAS, with the acceleration of new development projects in both the western and eastern areas of Dublin, the need to retain outside consultant rums is necessary, and WHEREAS, Staff has determined it necessary to hire technical support to provide biological site investigations of new projects (mandated by Eastern Dublin Specific Plan), and WHEREAS, Staff has determined it necessary to hire technical support to provide landscape architectural and arborist services including plan checks and field checks of new projects, and WHEREAS, Staff has determined it necessary to hire technical support to provide expertise in Planning and other development issues such as design assistance and planning Staff analysis, when current Staff is unable to complete projects in a timely fashion due to workloads, 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 firms of Stevenson, Porto and Pierce, Inc., Cannon Design Group, Jerry Haag & Associates, Dave Babcock & Associates and Deborah Ungo-McCormick have demonstrated they have adequate ability to perform th~ planning and other development services required, and; WHEREAS, LSA Associates, Inc., have demonstrated they have adequate ability to perform the biological services required, and; WHEREAS, JelTery Gamboni, Jim Hemmann Associates, Paul Niemuth Associates, and Wolfe- Mason Associates, Inc. have demonstrated they have adequate ability to perform the landscape architecture services required, and WHEREAS, consUltants will only perform work on a time and material basis at the direction the Community Development Director, and WHEREAS, all costs wilt be charged to the Community Development Department budget in accordance with costs associated with certain projects, and WHEREAS, the contracts and amendments have been reviewed and approved as to form by the City Attorney's Office as to form. The CONTRACTOR is not authorized to perform any services or incur any costs wl'/atsoevei' under the terms of this Agreement until receipt of a fully executed Purchase Order from the Finance Depm'tment of the City o.f Dublin. CITY OF DUBLIN '"Eddie PeabodY', Commun'~ De~lopment Director CONSULTANT Attest: Approved as to Form: Elizabeth H. Silver, City Attorney Exhibit B - Deborah Ungo-McCormick Page 2 of 2 Revised - July 1, 2003