HomeMy WebLinkAboutItem 4.07 CordobaCnslt AmendAgt CI'TY CLERK
File # 600-30
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: 3une Z7, 2003
SUBJECT: Amendment to Agreement with Cordoba Consulting, Inc., for
Coordination and Management of Freeway Projects and Associated
Engineering Services
(Report Prepared by: Lee S. Thompson, Public Works Director)
ATTACHMENTS: 1) Resolution including amendment
2) Letter from Cordoba Consulting, Inc.
3) Original Agreement dated August 3, 1999, with amendments
dated August 15, 2000, and April 16, 2002
RECOMMENDATI~:/~ Adopt Resolution Approving Amendment to Contract
FINANCIAL STATEnVdENT: Cordoba Consulting, Inc., has proposed an adjustment of hourly
rates, with an average increase of 3.7%. This increase is being
requested to cover increased office and field overhead costs,
including general and professional liability insurance, health
insurance, office expenses and salary cost of living adjustments.
The proposed fee for the work is not to exceed an additional
$100,000 for the period through June 30, 2004, with a 3.7% increase
in rates effective July 1, 2003. The cost of services to be provided
under this agreement is being paid through the budgets for 1-580
Freeway Interchange Capital Improvement Projects.
DESCRIPTION: The City of Dublin contracted with Cordoba Consulting, Inc., in
August 1999 to manage the various freeway interchange projects on Interstate 580. This work includes,
but is not limited to, mm~agement of the 1-580 interchange projects at Tassajara Road and Fallon Road.
The scope of work proposed for Cordoba Consulting includes coordination with the City of Pleasanton,
Caltrans, the City's various consultants and involved developers. The use of an outside consultant is to
ensure timely processing and completion of the freeway interchange projects.
Cordoba Consulting, Inc., is requesting a 3.7% increase in hourly rates, which is commensurate with the
February Bay Area Consumer Price Index. The cost of these services will be paid from existing budgets
for the freeway projects that are funded by developer Traffic Impact Fee advances. The City wishes to
extend the contract agreement until June 30, 2004, with the new rates to become effective on July 1, 2003,
on a time and materials basis not to exceed $100,000.
The work performed to date by Cordoba Consulting, Inc., has been satisfactory and professional, and
Staff recommends that the City Council adopt the resolution approving the amendment to the agreement.
COPIES TO: Eric Cordoba, Cordoba Consulting
ITEM NO.
G:\Engr-contract\cordoba\Agst amend engr agmt 03-04.doc
RESOLUTION NO. - 03
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AMENDMENT TO AGREEMENT WITH CORDOBA CONSULTING, INC.
FOR CONSULTING ENGINEERING SERVICES
WHEREAS, the City Council of the City of Dublin approved an agreement for coordination and
management of freeway projects and associated engineering services with Cordoba Consulting, Inc., on
August 3, 1999; and
WHEREAS, the term of the contract agreement was extended to June 30, 2003; and
WHEREAS, the City of Dublin desires to further extend the contract agreement to June 30, 2004; and
WHEREAS, Cordoba Consulting, Inc., has provided the City with consulting work in a professional
and satisfactory manner; and
WHEREAS, Cordoba Consulting, Inc., has requested an adjustment of the hourly rates to increase by
3.7% effective July 1, 2003; and
WHEREAS, the cost of services to be provided under this amendment would be paid through the
appropriate Capital Improvement Project budgets and funded developer payments of the Eastern Dublin
Traffic Impact Fee;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby
approve the Amendment to the Agreement with Cordoba Consulting, Inc., for consulting engineering services
(attached as Exhibit A to this Resolution).
BE IT FURTHER RESOLVED that the Mayor is authorized to execute the amendment to the
agreement.
PASSED, APPROVED AND ADOPTED this 17th day of June, 2003.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
G:kEngr-contract\cordobah'eso amend engr aomnt 03-04.doc /_
EXHIBIT "A" OF RESOLUTION -03
AMENDMENT TO AGREEMENT
BETWEEN CITY OF DUBLIN AND CORDOBA CONSULTING, INC.,
FOR ENGINEERING SERVICES
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Cordoba Consulting,
Inc. (hereinafter referred to as "CONSULTANT"), entered into a one-year agreement on August 3, 1999, to
provide project management services to CITY; and
WHEREAS, the consultant's contract was extended to June 30, 2003; and
WHEREAS, the not-to-exceed contract amount is proposed to be increased to cover the cost
of additional work for the extended period through June 30, 2004; and
WHEREAS, the Fee Schedule is proposed to be increased to cover increased Consultant
overhead costs effective July 1, 2003;
NOW, THEREFORE, the parties hereto agree as follows:
Extension of Term
The term of the agreement shall be extended from July 1, 2003, to June 30, 2004. Should a
new agreement or amendment to agreement to extend the contract not be entered into by June 30, 2004, then
this agreement will automatically extend until a new agreement or amendment to agreement is entered into or
City gives written notice of termination.
Not-To-Exceed
The total cost for ;vork under this amendment shall not exceed an additional $100,000 for the
period July 1, 2003, through June 30, 2004.
Fee Schedule
The revised Fee Schedule shall be based on the attached Fee Schedule.
CITY OF DUBLIN
Mayor
ATTEST:
Cordoba Consulting, Incorporated
City Clerk
Eric Cordoba, President
Date:
CORDOBA CONSULTING, INC.
FEE SCHEDULE
for the
1-580 Interchanges
Effective July 1. 2003
Hourly Rate
Project Manager $140.00
Administrative Assistant $65.00
Rates subject to change on July 1,2004. Hourly rates include office overhead (routine clerical, local
travel, telephone, etc.). Expenses (computer (CAD), printing, out of area travel, express mail,
delivery,, etc.) will be billed at cost plus 10%.
All costs and fees for any sub-contracted services will be billed at cost plus 10%.
5368 Laurel Dr.
Concord, CA 94521
(925) 671-5458
February 12, 2003
Mr. Lee Thompson
Public Works Director
City of Dublin
100 Civic Plaza
P.O. Box 2340
Dublin, CA 94568
RE: Interstate 580 Interchanges - Project Management Contract Extension - Revised Billing Rate
Schedule
Dear Mr. Thompson:
This is a follow up to your letter dated January 15, 2003 requesting rate adjustment information for
Cordoba Consulting, InC.'s project management services on the 1-580 interchange projects for the City
of Dublin.
Please find the attached revised billing rate schedule for your final review and approval. Be advised the
proposed project manager rate increase from $135 to $140 per hour is proposed to be effective starting
July 1, 2003. This constitutes a 3.7% percent increase on a per hour basis.
This proposed rate increase is requested to cover increased office and field overhead costs including
general and professional liability insurance, health insurance, office expenses and salary cost of living
adjustments. As indicated on the attached rate schedule, hourly rates cover office overhead costs
including routine clerical and local (Bay Area) travel expenses. I have included a billing rate for an
administrative assistant. To date, I have yet to charge for administrative assistance services and will
only do so with prior approval from City staff in extraordinary circumstances.
I appreciate your review of these items and look forward to continuing this exciting project assignment.
If you have any questions, please feel free to call me at my office (925) 671-5458.
Sincerely,
Eric Cordoba
President
w/attachment
CORDOBA CONSULTING, INC.
FEE SCHEDULE
for the
1-580 Interchanges
Effective July 1, 2003
Hourly Rate
Project Manager $140.00
Adrninistrative Assistant $65.00
Rates subject to change on July 1,2004. Hourly rates include office overhead (routine clerical, local
travel, telephone, etc.). Expenses (computer (CAD), printing, out of area travel, express mail,
delivery, etc.) will be billed at cost plus 10%.
Alt costs and fees for any sub-contracted services will be billed at cost plus 10%.
_fit,,
EXHIBIT "A" OF RESOLUTION ~)~O -02
AMENDMENT TO AGREEMENT
BETWEEN CITY OF DUBLINAND CORDOBA CONSULTING, INCORPORATED'
FOR ENGINEERING SERVICES
WHEREAS, the City of Dublin (hereinafter referred to as "CITY") and Cordoba
Consulting, Inc. (hereinafter referred to as "CONSULTANT"), entered into a one-year agreement on
August 3, 1999, to Provide project management services to CITY; and
WHEREAS, the consultant's contract was extended for a period of one year effective
August 1, 2000; and
WHEREAS,. the not-to-exceed contract amount is proposed to be increased to cover the
cost of additional work for the extended period from August 2, 2001, through June 30, 2003; and
WHEREAS, the Fee Schedule is proposed to be increased to cover increased Consultant
overhead costs effective May 1, 2002;
NOW, THEREFORE, the parties hereto agree as follows:
Extension of Term
The total cost for work under this amendment shall not exceed an additional $100,000 for the
extended period from August 2, 2001, through June 30, 2003.
Fee Schedule
The revised Fee Schedule shall be based on the attached Fee Schedule and shall be effective
May 1, 2002.
Mayor
ATTEST:
'-7 City-Clerk
~./o~l~ba ~~d
Eric Cordoba, President
Date: ~/~>//~j '2--
CORDOBA CONSULTING, INC.
FEE SCHEDULE
for .the
1-580 Lnterehanges
Effective May 1, 2002
Hourly Rate
Proj eot Manager $135.00
Administrative Assistant $65.00
Rates subject to change on July 1, 2003. Hourly rates include office overhead (routine Clerical, local
travel, telephone, etc.). Expenses (computer (CAD), printing, out of area travel, express mail,
.delivery, etc.) will be billed at cost plus 10%.
coRDoBA CONSULTING, INC. reserves the right, in its discretion, to subcontract portions of
its projects to Other qualified professionals. All costs and fees for any sub-contracted services will
be billed at cost plus 10%i
AMENDMENT TO AGREEMENT
BETWEEN CITY OF DUBLIN AND CORDOBA CONSULTING, INCORPORATED.
FOR ENGINEERINGSERVICES
WHEREAS, the City of Dublin (hereinafter referred .to as "CITY") and Cordoba
Consulting, Inc2 .(hereinafter referred' to as "CONSULTANT"), entered imo a one-year agreement on
AugUst 3, 1999, to provide project management services to CITY; and
WHEREAS, the not-to-exceed contract mount is' proposed to be increased to cover the
· cost of additional work for an extended period of one year effective August t 5, 2000;
WHEREAS, the Fee Schedule is proposed to be increased to cover increased Consultant
overhead costs;
NOW, THEREFORE, the parties hereto agree as follows:
Extension of Term
The total cost for work under this amendment shall not exceed an additional $120,'000 for an
extended period of.one year effective August 15, 2000.
Fee Schedule
The Fee Schedule shall be based on the attached Fee Schedule and will be effectix;e August 15,
2000.
CITY OF DUBLIN
Cordoba Consulting, Incorporated
Eric Cordoba
Date:
CORDOBA CONSULTING, INC.
FEE SCHEDULE
for the
I-580 Interchanges
Effective August 1, 2000
Hourly Rate
Project Manager '$131.25
Administrative Assistant $65.00
Rates subject to change on August 1,200I. Hourly rates include office overhead (routine clerical,
local travel, etc.). Expenses (computer (CAD), printing, authorized entertainment, out of area travel,
telephone, express mail, delivery, etc.) will be billed at cost plus 10%.
CORDOBA CONSULTING, INC. reserves the right, in its discretion, to sub-contract portions of
its projects m other qualified professionals. All costs and fees for any sub-contracted services will
be billed at cost plus 10%.
STANDARD
CONSULTING ENGINEERING SERVICES AGREEMENT
THIS AGREEMENT is made at Dublin, California, as of August 3, 1999, by and between
the CITY OF DUBLIN, a municipal corporation ("City"), and Cordoba Consulting Inc. ("Consultant"),
who agree as follows:
1. SERVICES. Subject to the terms and conditions set forth in this Agreement,
Consultant shall provide to City the services described in Exhibit A. Consultant shall provide said
services at the time, place, and in the manner specified in Exhibit A.
2. PAYMENT. City shall pay Consultant for services rendered pursuant to this
Agreement at the time and in the manner set forth in Exhibit B. The payments specified in Exhibit B shall
be the only payments to be made to Consultant for services rendered pursuant to this Agreement.
Consultant shall submit all billings for said services to City in the manner specified in Exhibit B; or, if no
manner be specified in Exhibit B, then according to the usual and customary procedures and practices
which Consultant uses for billing clients similar to City.
3. FACILITIES AND EQUIPMENT. Except as set forth in Exhibit C, Consultant shall, at
its sole cost and expense, famish ail facilities and equipment which may be required for furnishing
services pursuant to this Agreement. City shall furnish to Consultant only the facilities and equipment
listed in Exhibit C according to the terms and conditions set forth in Exhibit C.
· 4. 'GENERAL PROVISIONS. The general provisions set forth in Exhibit D are part of
this Agreement. In the event .of any inconsistency between said general provisions and any other terms or
conditions of this A~eement, the other term or condition shall control insofar as it is inconsistent with the
general provisions.
5. EXHIBITS. All exhibits referred to herein are attached hereto and are by this reference
incorporated herein.
6. SUBCONTRACTING. The Consultant intends to subcontract all or portions of the
work contemplated to George Homolka. Said subcontract arrangement has been approved by the City.
7. CHANGES. City may from time to time require changes in the scope of the services by
Consukant to be performed under this Agreement. Such changes, including any change in the amount of
Consultant's compensation which are mutually agreed upon by City and Consultant, shall be effective as
amendments to this Agreement only when in writing.
8. RESPONSIBLE CHARGE. Consultant shall assign a project manager(s) to the project
for the duration of the project. There shall be no change in the Project Manager or members of the project
team without prior written approval by the City. The Project Manager for Consultant shall be Eric
Cordoba.
Agreement
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9. CONTRACT ADMINISTRATION. This Agreement shall be administered by LEE S.
THOMPSON ("Administrator"). All correspondence shall be directed to or through the Administrator or
his or designee.
10. NOTICES.' Any written notice to Consultant shall be sent to:
Cordoba Consulting Inc.
5368 Laurel Drive
Concord, CA. 94521
Any written notice to City shall be sent to:
Lee S. Thompson
Director of Public Works/City Engineer
P. O. Box 2340
Dublin, CA 94568
Executed as of the day first above stated:
CITY OF DUBLIN,
a mun~xl c ~°rpgrati~°P _~
"Consultant"
Approved as to form:
City Attorney
Agreement
Page 2 of 2
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EXHIBIT A
SCOPE OF SERVICES AND SCHEDULE
Scope of Services:
Review, schedule and oversee the processing of the proposed Assessment District, to include:
a. Review of petition and preparation of Council agenda statement to initiate district.
b. Review Engineer's estimates of work, assemble the initial Engineer's Report and updates from data
received from proponents engineer and prepare Council agenda statement. Oversee plancheck of
improvements to be constructed within the district.
c. Provide requested documentation for district processing as requested by the District Counsel and Bond
Counsel.
d. Review and comment on developer's process to bid, let contracts and pay contractor's invoices, together
with change orders.
e. Review soft cost claims for design and contract administration.
f. Provide cost backup and recommendations to City for processing payment requests to developer.
g. Provide Traffic Impact Fee credit analysis for work performed through Assessment District.
h. Prepare project and Assessment District closeout doc'dments, together with City Council agenda statements.
i. Attend meetings and coordinate with Staff, developers, developers' engineers, and at City Council.
j. Prepare and maintain schedule of work and cash flow.
k. Administer and manage contracts with plan check and construction consultants.
1. Coordinate and administer the acquisition of off-site rip, hr-of-way necessary for assessment district work.
m. Review and approve the phasing for the proposed Assessment District.
This Scope does not include the hiring of Assessment District Counsel, bond Counsel, appraisers or design
engineers
Exhibit A
Page 1 of 1
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EXHIBIT B
PAYMENT SCHEDULE
City shall pay Consultant an amount not to exceed the total sum of $100,000 for
services to be performed pursuant to this Agreement. Consultant shall submit invoices on a
monthly basis.
The total sum stated above shall be the total which City shall pay for services to
be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for
any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this
Agreement.
City shall make no payment for any extra, fmther or additional service pursuant to
this Agreement unless such extra service and the price therefor 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 and in no event shall such change order exceed twenty-
five percent (25%) of the initial contract price.
The services to be provided under this Agreement may be terminated without
cause at any point in time in the sole and exclusive discretion of City. If the Agreement is
terminated by City, Consultant shall be entitles to receive just and equitable compensation for
any satisfactory work completed on such documents and other materials to the effective date of
such termination. In that event, all finished and unfinished documents and other materials shall,
at the option of the City, become City's sole and exclusive property. Consultant hereby expressly
waives any and all claims for damages or compensation arising under this Agreement. Consultant
shall maintain adequate logs and timesheets in order to verify costs incurred to date.
The Consultant is not authorized to perform any services or incur any costs
whatsoever under the terms of this 'Agreerhent until receipt of a fully executed Purchase Order
from the Finance Department of the City of Dublin.
Exhibit B
Page 1 of 1
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EXHIBIT C
City shall furnish physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary for Contractor's use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and
time of furnishing said physical facilities shall be in the sole discretion of City. In no event shall
City be obligated to furnish any facility which may involve incurring any direct expense,
including, but not limiting the generality of this exclusion, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
Exhibit C
Page 1 of t
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EXHIBIT D
GENERAL PROVISIONS
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 engineering services rendered
pursuant to this Agreement; however, City shall not have the right to control the means by which
Consultant accomplishes services rendered pursuant to this Agreement.
2.. LICENSES; PERMITS; ETC. Consultant represents and warrants to City that he has all
licenses, permits, qualifications and approvals of whatsoever nature which are legally required
for Consultant to practice his profession. Consultant represents and warrants to City that
Consultant shall, at his sole cost and expense, keep in effect at all times during the term of this
Agreement any licenses, permits, and approvals which are legally required for Consultant to
practice his profession.
3. TIME. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary for satisfactory performance of Consultant's
obligations pursuant to this Agreement.
4. INSURANCE REQUIREMENTS. Consultant shall procure and maintain for the duration of the
contract insurance against claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the work hereunder by the Consultant, his agents,
representatives, employees or subcontractors. The cost of such insurance shall be included in the
Consultant's bid.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
(1) 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; or Insurance
Services Office Commercial General Liability coverage ("occurrence" form CG
OOOl).
(2) Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile
Liability, code 1 "any auto" and endorsement CA 0025.
(3) Worker's Compensation insurance as required by the Labor Code of the State of
California and Employers Liability Insurance.
B. Minimum Limits of Insurance. Consultant shall maintain limits no less than:
Exhibit D
Page 1 of 5
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(1) General Liability: $1,000,000 'combined single limit per occurrence for bodily
injury, personal injury and property damage. If commercial General Liability
Insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.
(2) Automobile Liability: $1,000,000 combined single limit per accident for bodily
injury and property damage.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must
be declared to and approved by the City. At the option of the City, either the insurer shall
reduce or eliminate such deductibles or self-insured retentions as respects the City, its
officers, officials and employees; or the Consultant shall procure a bond guaranteeing
payment of losses and related investigations, claim administration and defense expenses.
D. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the
following provisions:
(1) General Liability and Automobile Liability Coverages.
(a) The City, its officers, officials, employees and volunteers are to be covered
as insureds as respects: liability arising out of activities performed by or
on behalf of the Consultant; products and completed operations of the
Consultant, premises owned, occupied or used by the Consultant, or
automobiles owned, leased, hired or borrowed by the Consultant. The
coverage shall contain no special limitations on the scope of the protection
afforded to the City, its officers, officials, employees or volunteers.
(b) The Consultant's insurance coverage shall be primary insurance as respects
the City, its officers, officials, employees and volunteers. Any insurance
or self-insurance maintained by the City, its officers, officials, employees
or volunteers shall be excess of the Consultant's insurance and shall not
contribute with it.
(c) Any failure to comply with reporting provisions of the policies shall not
affect coverage 'provided to the City, its officers, officials, employees or
volunteers.
(d) The Consultant's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of
the insurer's liability.
(2) Worker's Compensation and Employers Liability Coverage.
Exhibit D
Page 2 of 5
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The insurer shall agree to waive all rights of subrogation against the City, its
officers, officials, employees and volunteers for losses arising from work
performed by the Consultant for the City.
(3) All Coverages..
Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be 'suspended, voided, cancelled 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.
E. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of
no less than A:VIII.
F. Verification of Coverage. Consultant shall furnish City with certificates of insurance and
with original endorsements effecting coverage required by this clause. 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 certificates and endorsements are to be
received and approved by the City before work commences. The City reserves the right
to require complete, certified copies of all required'insurance policies, at any time.
H. The Risk Manager of City may approve a variation of those 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.
5. 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.
6. ASSIGNMENT PROHIBITED. No party to this Agreement maY assign any fight or obligation
pursuant to this Agreement. Any attempted or purported assignment of any right or obligation
pursuant to this Agreement shall be void and of no effect.
7. 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 removal of any such persons, Consultant shall, immediately upon
receiving notice from City of such desire of City, cause the removal of such person or persons.
8. STANDARD OF PERFORMANCE. Consultant shall perform ali 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 his profession. All instruments of service of whatsoever nature which
Consultant delivers to City pursuant to this Agreement shall be prepared in a substantial, fn'st
Exhibit D
Page 3 of 5
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class and workmanlike manner and conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
9. HOLD HARMLESS AND RESPONSIBILITY OF CONSULTANTS. Consultant shall take all
responsibility for the work, shall bear all losses and damages directly or indirectly resulting to
him, to any subconsultant, to the City, to City officers and employees, or to parties designated by
the City, on account of the negligent performance or character of the work, unforeseen
difficulties, accidents, occurrences or other causes predicated on active or passive negligence of
the Consultant or of his subconsultant. Consultant shall indemnify, defend and hold harmless the
City, its officers, officials, directors, employees and agents from and against any or ali loss,
liability, expense, claim, costs (including costs of defense), suits, and damages of every kind,
nature and description directly or indirectly arising from the negligent performance of the work.
This paragraph shall not be construed to exempt the City, its employees and officers from its own
fraud, willful injury or violation of law whether willful or negligent. For purposes of Section
2782 of the Civil Code the parties hereto recognize and agree that this Agreement is not a
construction contract. By execution of this Agreement Consultant acknowledges and agrees that
- he has read and understands the provisions hereof and that this paragraph is a material element of
consideration.
Approval of the insurance contracts does not relieve the Consultant or subconsultants from
liability under this paragraph.
10. GOVERNMENTAL REGULATIONS. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant shall comply with all applicable
rules and reg~alations to which City is bound by the terms of such fiscal assistance program.
11. DOCUMENTS. All reports, data, maps, models, charts, designs, plans, studies, surveys,
photographs, memoranda or other written documents or materials prepared by Consultant
pursuant to this Agreement shall become the property of City upon completion of the work to be
performed hereunder or upon termination of the Agreement. No such materials or properties
produced in whole or in part under this Agreement shall be subject to private use, copyrights, or
patent rights by Consultant in the United States or in any other country, without the express
written consent of City. City shall have unrestricted authority to publish, disclose (as may be
limited by the provisions of the California Public Records Act), distribute, and otherwise use,
copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other
materials or properties produced under this Agreement.
Exhibit D
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