HomeMy WebLinkAboutReso 111-05 OmniTrafficEngSvcs
RESOLUTION NO. 111 - 05
A RESOLUTION OF THE CnYCOUNCJL
OF THE CIlY OF DUBLIN
* * * * . * . . *
APPROVING AGREEMENT WITH OMNI-MEANS, LID
FOR TRAFFIC ENGiNEERING SERVICES
WHEREAS, Omni-Means, LTD, has provided traffic engineering services to the City since 1996;
and
WHEREAS, the City desires to continue using Omni-Means' services; and
WHEREAS, it is proposed to enter into a new two-year Agreement in order to incorporate
amended contract language;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the Agreement with Omni-Means, LTD, attached hereto as "Exhibit A."
BE IT FURTHER RESOLVED that the Mayor is authorized to execute the Agreement.
PASSED, APPROVED AND ADOPTED this 21 st day of June, 200S.
A YES: Council members Hildenbrand, McCormick, Oravetz, Zika and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
K2/G/6-21-05/reso 111-05 Omni-Means (Item 4.9)
G:\CONSUI:r ANTSIonuU'<eso now aglm OHJ6.d""
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND OMNI-MEANS, LTD
THIS AGREEMENT for consulting services is made by and between the CITY OF DUBLIN ("City")
and Omni-Means, L TD ('Consultant"), as of June 21, 2005.
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant
shall provide to City the services described in the Scope 01 Work attached as Exhibit A at the time and
place and in the manner specified therein. In the event ola 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 June 30, 2007, 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 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 nonnally observed by a person practicing in Consultant's profession.
1.3 Asslanment of Personnel. Consultant shall assign only ccmpetent 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 01 any such persons,
Consuitant 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.
Consultant shall not be responsible for delays beyond Consultant's reasonable control.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed Two
Hundred Thousand Dollars and No Cents ($200,000), notwithstanding any contrary indications that may be
contained in Consultant's per·task proposal, for services to be performed and reimbursable costs incunred
under this Agreement. In the event of a ccnflict between this Agreement and Consultant's per"task
proposal, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant
for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The
payments specified below shall be the only payments from City to Consultant for services rendered
pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein.
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21, 2005·
Page 1 of 14
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
tenn 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:
.
· Clear numerical identification, with no duplication of numbering;
· 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 inciude 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 perfomled, and for authorized reimbursable costs incurred . City
shall have 30 days from the receipt of an invoice that ccmplies with all of the requirements
above to pay Consultant.
2.3 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 ccst whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
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.
Consulting Services Agreement between
City of Dublin and Omni·Means, L TO
June 21, 2005
Page 2 of 14
2.4 HourlY Fees. Fees for work perfonned by Consultant on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto as Exhibit B.
2.5 Reimbursable Expenses. Reimbursable expenses under this Agreement are defined as
mileage and extraordinary binding and printing costs, and shall be included in the total
amount of compensation provided under this Agreement.
2.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.7 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.
2.8 Authorization to Perform Services. The Consultant is not authorized to perfonm any
services or incur any ccsts whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
2.9 Rate Adjustments. Consultant will be entitled to an annual rate adjustment upon each
annual anniversary of this Agreement, the amount of said increase to be approved by the
City. The base for computing the adjustment shall be the Consumer Price Index for Urban
Wage Earners for the San Francisco-Oakland Bay Area published by the U.S. Department
of Labor, Bureau of Labor Statistics (Index) which is published for the year ending in
February. If the Index has increased over the Index for the prior year, the rates for the
following. year shall be established by multiplying the rates for the current year by a
fraction, the numerator of which is the Renewal Index and the denominator of which is the
Index for the preceding year. In no case shall the adjusted rates be less than the initial
rates as set forth in Exhibit B. A sample calculation is set forth below. The Public Works
Director shall calculate the adjusted rate on each anniversary date of this Agreement and
shall provide notice to Consultant of such new rates. .
SAMPLE CALCULATION: (Using 1 % index increase as an example)
HOURLY CHARGE RATE
INDEX INCREASE (Assuming 1%) 150 x .01 = 1.50
$150.00/hr
1.50/hr
$151.50/hr
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 selilices
required by this Agreement. City shall make available to Consultant oniy the facilities and equipment listed
in this section, and only under the terms and conditions set forth herein. .
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21,2005
Page 3 of 14
City shall furnish physical facilities such as desks, filing cabinets. and ccnference 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
shali be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may
involve incurring any direct expense, including but not limited to computer, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement,
Consultant, at its own cost and expense, shall procure "occurrence coverage" insurance against claims
for injuries to persons or damages to property that may arise from or in connection with the performance
of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors.
Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this
section and under forms of insurance satisfactory in all respects to the City. Consultant shall maintain
.the insurance policies required by this section throughout the term of this Agreement. -The cost of such
insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to
commence work on any subcontract until Consultant has obtained all insurance required herein for the
subccntractor(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' ComDensation. 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, empioyees, and
volunteers for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be canceled except after thirty (30)
days' prior written notice by certified mail, return receipt requested, has been given to the
City. Consultant shall notify City within 14 days of notification from Consultant's insurer if
such ccverage is suspended, voided or reduced in coverage or in limits.
4.2 Commercial General and Automobile liability Insurance.
4.2.1 General reauirements. Consultant, at its own ccst and expense, shall maintain
commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than ONE MILLION DOUARS ($1 ,OOD,OOO.OO)
per occurrence, ccmbined 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,
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21, 2005
Page 4 of 14
either the general aggregate limit shall apply separately to the work to be
perfonned under this Agreement or the general aggregate limit shall be at least
twice the required occurrence limit. Such coverage shall include but shall not
be limited to, protection against claims arising from bodily and personal injury,
including death resulting therefrom, and damage to property resulting from
activities contemplated under this Agreement, including the use of owned and
non-owned automobiles.
4.2.2 Minimum SCODe of coveraae. Commercial general coverage shall be at least
as broad as Insurance Services Office Commercial General Liability occurrence
form CG 0001 (ed. 11/88) or Insurance Services Office form number GL 0002 (ed.
1/73) covering ccmprehensive General Liability and insurance Services Office
form number GL 0404 covering Broad Form Comprehensive General Liability.
Automobile ccverage shall be at least as broad as Insurance Services Office
Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9 ('any auto"). No
endorsement shall be attached limiting the coverage.
4.2.3 Additional reaulrements. Each of the following shall be included in the
insurance coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered
as additional insureds with respect to each of the following: liability arising
out of activities performed by or on behalf of Consultant, including the
insured's general supervision of Consultant: products and completed
operations of Consultant; premises owned, occupied, or used by
Consultant; and automobiles owned, leased, or used by the Consuitant.
The coverage shall contain no special limitations on the sccpe 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 ccntribute to a loss under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the
policy shall not affect coverage provided to CITY and its officers,
employees, agents, and volunteers.
e. An endorsement shall state that coverage shall not be canceled except
after thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City. Consultant shall notify City within
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21, 2005
Page 5 of 14
14 days of notification from Consultant's insurer if such coverage is
suspended, voided or reduced in coverage or in limits.
4.3 Professional Liabllltv Insurance. Consultant, at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for
licensed professionals performing work pursuant to this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals'
errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim,
4.3.2 An endorsement shall state that coverage shall not be suspended, voided,
canceled by either party, reduced in coverage or in limits, except after thirty (30)
days' prior written notice by-certified mail, return receipt requested, has been given
to the City.
4.3.3 The 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 iong 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 Gonsultant's sole cost and
expense, any extended reporting provisions of the policy, if the Consultant
cancels or does not renew the coverage.
d. A ccpy of the claim reporting requirements must be submitted to the Gity
prior to the commencement of any work under this Agreement.
4.4 All Policies ReQuirements.
4.4.1 Acceotabilitv 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 coveraQe. Prior to beginning any work under this Agreement,
Consultant shall fumish City with certificates of insurance and with original
endorsements effecting coverage required herein. The certificates and
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21, 2005
Page 6 of 14
endorsements for each insurance policy are to be signed by a person authorized
by that insurer to bind ccverage on its behalf. The City reserves the right to
require ccmplete, 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 fumish separate certificates and endorsements for each
subcontractor. All coverages forsubccntractors 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·lnsured Retentions. Consuitant 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.
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
deductibie 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 CoveraQe. In the event that any coverage required
by this section is reduced, limited, or materially affected in any other manner,
Consultant shali provide written notice to City at Consultant's eariiest 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 altematives 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 ccmpliance with the requirements hereof; and/or
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21, 2005
Page 7 of 14
· Terminate this Agreement.
Sectîon 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 anyand all losses, liabiiity, claims, suits, actions,
damages, and causes of action arising out of any personal injury, bodily injury, ioss of life, or damage
to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in
whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees,
subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character
of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life,
damage to property, or vioiation of law arises wholly from the negligence or willful misconduct of the
City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees,
subcontractor, or agents have contributed in no part to, the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the Califomia Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall
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 Callfomia 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, agènts, 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 IndeDendent Contractor. At all times during the term of this Agreement, Consultant
shall be an independent ccntractor 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 subccntractors 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,încluding
. but not limited to eligibility to enroll in the California Public Employees Retirement System
(PERS) as an empioyee of City and entitlement to any ccntribution to be paid by City for
employer contributions and/or employee contributions for PERS benefits.
Consulting Services Agreement þetween
City of Dublin and Omni-Means, L TD
June 21 , 2005
Page 8 of 14
6.2 Consultant No AQent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 GoverninQ' Law. The laws of the State of California shali govern this Agreement.
7.2 Comøliance with ADDU cable Laws. Consultant and any subccntractors shall compiy with
all laws applicable to the performance of the work hereunder.
7.3 Other Governmental ReQulations. To the extent that this Agreement may be fUllded
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 subccntractors have all licenses, permits, qualifications,
and approvais 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 iegally 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 OÞøortunltv. Consultant shall not discriminate, on the
basis of a person's race, religion, color, national origin, age, physical or mental handicap
or disability, medical condition, marital status, sex! or sexual orientation, against any
employee, applicant for employment, subcon.tractor, bidder for a subcontract, or participant
in, recipient of, or applicant for any services or programs provided by Consultant under this
Agreement. Consultant shall ccmply 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.
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21, 2005
Page 9 of 14
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 thirty (30) 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 deiivering to City any or all documents, photographs,
ccmputer 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 Assianment and Subcontractina. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a
determination of Consultant's unique personal competence. experience, and specialized
personal knowledge. Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator. Consultant shall not subcontract any portion of the
performance contemplated and provided for herein, other than to the subcontractors noted
in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the tennination 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 bv Consultant. If Consultant materially breaches any of the terms
of this Agreement, City's remedies shall included, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
Consulting Services Agreement between
City of Dublin and Omni·Means, L TD
June 21, 2005
Page 10 of 14
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not
finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that Is unfinished at the time of breach and the amount
that City would have paid Consultant pursuant to Section 2 if Consuitant had
ccmpleted the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Par! 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 tennination 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 shail maintain any and all ledgers,
books of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this Agreement for a minimum of three (3) years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
andlor copying at any time during regular business hours, upon oral or written request of
the City. Under California Govemment 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.
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21,2005
Page 11 of 14
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attornevs' Fees. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to which
that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state ccurts of California in the County of Alameda or in the United States District Court
for the Northern District of California.
10.3 Severabilitv. 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 fu II 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 Assians. The provisions of this Agreement shall inure to the benefit of
and shali appiy to and bind the successors and assigns of the parties.
10.6 Use of Recvcled 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 ccrporate 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 Califomia 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 of City shall have any financial interest in this
Agreement that would violate California Govemment Code Sections 1090 et seq;
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. if Consultant was an
employee, agent, appointee, or official of the City in the previous twelve months,
Consultant warrants that it did not participate in any manner in the fonning 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
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21, 2005
Page 12 of 14
be entitled to any compensation for services performed pursuant to this Agreement,
including reimbursement of expenses, and Consultant will be required to reimburse the
City for any sums paid to the Consultant. Consultant understands that, in addition to the
foregoing, it may be subject to criminal prosecution for a violation of Government Code
§ 1090 and, if applicable, will be disqualified from holding public office in the State of
California.
10.8 Solicitation. Consultant agrees not to solicít business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Melissa Morton,
Public Works 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: George Nickelson
OMNi·MEANS. LTD
1901 Olympic Boulevard, #120
Walnut Creek, CA 94596
Any written notice to City shall be sent to:
Melissa Morton
City of Dublin Public Works
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.
Seal and Si nature
report/design responsibility.
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21, 2005
Page 13 of 14
10.12 Intearation. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibit A, and the Charge Rate Fee Schedule incorporated herein
as Exhibit 8, represents the entire and integrated Agreement between City and Consultant
and supersedes all prior negotiations, representations, or agreements, either written or
oral.
CITY OF DUBliN
OMNI-MEANS,
~
Janet Lockhart, Mayor
H,
Attest:
Kay Keck, City Clerk
Approved as to Form:
Elizabeth Silver, City Attorney
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Consulting Services Agreement between
City of Dublin and Omni-Means, L TD
June 21, 2005
Page 14 of 14
EXHIBIT A
SCOPE OF SERVICES
To provide general Traffic Engineering services for the two-year term commencing July 1, 2005,
and ending June 30, 2007, which include traffic studies, peer review and other traffic-related services for
private development projects. The scope of studies shall be detailed as specific projects are proposed to
the City. The consultant shall provide the City with a not-to-exceed fee for each study, peer review, and/or
other traffic-related review.
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Consulting Services Agreement between
City of Dublin and Omni-Means, L TD--Exhibit A
.~~
June 21, 2005
Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
Compensation shall be paid per the Fee Schedule entitled, "2005-2006 Charge Rate Fee
Schedule," attached hereto,
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Consulting Services Agreement between
City of Dublin and Omni-Means, L TD--Exhibit B
June 21, 2005
Page 1 of 1
EXHIBIT A
SCOPE OF SERVICES
To provide general Traffic Engineering services for the two-year term commencing Juiy 1, 2005,
and ending June 30, 2007, which include traffic studies, peer review and other traffic,related services for
private development projects. The scope of studies shall be detailed as specific projects are proposed to
the City. The consultant shall provide the City with a noHo-exceed fee for each study, peer review, and/or
other traffic-related review.
G:\CONSULTANTSlomnnNEW oon.umng ogreemont 06210Moc
Consulting Services Agreement between
City of Dublin and Omni-Means, L TD--Exhibit A
June 21, 2005
Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
Compensation shall be paid per the Fee Schedule entitled, "2005-2006 Charge Rate Fee
Schedule," attached hereto.
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Consulting Services Agreement between
City of Dublin and Omni-Means, L TD--Exhibit B
June 21,2005
Page 1 of 1
2005-2006 CHARGE RATE FEE SCHEDULE
OMNI-MEANS
CLASSIFICATION
2005-2006
RATE
Consultant (Branch ~anager)
Traffic Engineer 3
$ 173
114
Technician 3
90
G:\CONSUlTANTSlomnlloxhiblt 1 agra.m.nt 05·06.doc