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HomeMy WebLinkAbout4.3 Amendment to Consulting Services Agreement with Keyser Marston Associates, Inc.CELEBRATING STAFF REPORT CITY COUNCIL DUBLIN CALIFORNIA Agenda Item 4.3 DATE: November 1, 2022 TO: Honorable Mayor and City Councilmembers FROM: Linda Smith, City Manager SU B.ECT : Amendment to Consulting Services Agreement with Keyser Marston Associates, Inc. Prepared by: Rhonda Franklin, Management Analyst 11 EXECUTIVE SUMMARY: The City Council will consider approving an amendment to the agreement with Keyser Marston Associates, Inc. to increase the compensation for additional consulting services. STAFF RECOMMENDATION: Adopt the Resolution Approving an Amendment to the Consulting Services Agreement Between the City of Dublin and Keyser Marston Associates, Inc. for On -Call Real Estate and Development Consulting Services. FINANCIAL IMPACT: The amendment to the agreement increases the not -to -exceed compensation by $50,001, from $44,999 to $95,000. There is sufficient funding in the Fiscal Year 2022-23 Budget for this expenditure. DESCRIPTION: On July 15, 2022, the City Manager approved a three-year agreement with Keyser Marston Associates, Inc. in the amount of $44,999 for on -call real estate and development consulting services that included fiscal analyses related to current development activity. These charges are absorbed by applicants. This first amendment to the agreement expands the services to include fiscal studies related to the planned future extension of Dublin Boulevard, which is required under the Open Space Initiative of 2014 by 2024. Keyser Marston Associates has extensive experience in conducting fiscal studies and has been working with the City for several years on multiple projects such as the Downtown Specific Plan Page 1 of 2 210 and the Dublin Crossing development. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: The City Council Agenda was posted, and a copy of this Staff Report was sent to the consultant. ATTACHMENTS: 1) Resolution Approving an Amendment to the Consulting Services Agreement Between the City of Dublin and Keyser Marston Associates, Inc. for On -Call Real Estate and Development Consulting Services 2) Exhibit A to the Resolution - First Amendment to Consulting Services Agreement Between the City of Dublin and Keyser Marston Associates, Inc. for On -Call Real Estate and Development Consulting Services 3) Consulting Services Agreement Between the City of Dublin and Keyser Marston Associates, Inc. for On -Call Real Estate and Development Consulting Services Page 2 of 2 211 Attachment I RESOLUTION NO. XX — 22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AN AMENDMENT TO THE CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND KEYSER MARSTON ASSOCIATES, INC. FOR ON - CALL REAL ESTATE AND DEVELOPMENT CONSULTING SERVICES WHEREAS, on July 15, 2022, the City of Dublin and Keyser Marston Associates, Inc. entered into a Consulting Services Agreement for on -call real estate and development consulting services; and WHEREAS, the existing agreement has a not -to -exceed amount of $44,999 and will expire on July 15, 2025; and WHEREAS, Staff desires to utilize the services of Keyser Marston Associates, Inc. for additional fiscal analysis related to the planned future extension of Dublin Boulevard; and WHEREAS, the City and Keyser Marston Associates, Inc. now wish to modify Section 2 of the Agreement to increase the not -to -exceed amount to $95,000; and WHEREAS, Section 2.36.090 of the Dublin Municipal Code requires City Council approval of supplies, equipment, and services with a cost greater than or equal to $45,000. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Amendment to the Consulting Services Agreement with Keyser Marston Associates, Inc. for On -Call Real Estate and Development Consulting Services attached hereto as Exhibit A. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the amendment to the agreement, attached hereto as Exhibit A, and make any necessary, non - substantive changes to carry out the intent of this Resolution. {Signatures on the following page} Reso. No. XX-22, Item X.X, Adopted XX/XX/2022 Page 1 of 2 212 PASSED, APPROVED AND ADOPTED this 1st day of November 2022, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Reso. No. XX-22, Item X.X, Adopted XX/XX/22 Page 2 of 2 213 DocuSign Envelope ID: BCO5DF4A-FCE1-42A1-B8B0-31A1543B4234 Attachment 2 FIRST AMENDMENT TO CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND KEYSER MARSTON ASSOCIATES, INC. FOR ON CALL REAL ESTATE AND DEVELOPMENT CONSULTING SERVICES WHEREAS, on July 15, 2022, the City of Dublin (hereinafter referred to as "CITY") and Keyser Marston Associates, Inc. (hereinafter referred to as "CONSULTANT") entered into a Consulting Services Agreement for on call real estate and development consulting services (hereinafter referred to as the "AGREEMENT"); and WHEREAS, the existing project scope is in progress and Staff desires to include additional consulting services and increase the compensation, by $50,001, for the agreement; and WHEREAS, the CITY and CONSULTANT now wish to amend the Agreement to modify section 2 of the agreement. NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the AGREEMENT is amended as follows: 1) Section 2 shall be rescinded in its entirety and replaced with the following: COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $95,000, notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit B, 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. Except as specifically authorized by City in writing, 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) Except to the extent inconsistent with this First Amendment, the Parties ratify and confirm all of the terms and conditions of the AGREEMENT. Page 1 of 2 214 DocuSign Envelope ID: BC05DF4A-FCE1-42A1-B8B0-31A1543B4234 3) All requisite insurance policies to be maintained by the Consultant pursuant to the Agreement, as may have been amended from time to time, shall include coverage for the amended term, as described above. 4) The individuals executing this Amendment and the instruments referenced in it on behalf of Consultant each represent and warrant that they have the legal power, right and actual authority to bind Consultant to the terms and conditions of this Amendment. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed as of the date of the City Manager's signature below. CITY OF DUBLIN By: Linda Smith, City Manager Dated: ATTEST: By: Marsha Moore, City Clerk APPROVED AS TO FORM: By: City Attorney KEYSER MARSTON ASSOCIATES, INC. DocuSigned by: By: L.O_c_leleit. L'(.1 V, 0701r033404D423... Debbie M. Kern, Managing Principal Page 2 of 2 215 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 Attachment 3 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND KEYSER MARSTON ASSOCIATES, INC. FOR ON CALL REAL ESTATE AND DEVELOPMENT CONSULTING SERVICES THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Keyser Marston Associates, Inc. ("Consultant") (together sometimes referred to as the "Parties") as of July 15, 2022 (the "Effective Date"). Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on July 15, 2025, upon the completion of the Services by the Consultant specified in Exhibit A, 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 referenced in Section 8. Notwithstanding the foregoing this Agreement may be extended for two one-year extensions upon the written consent of the Consultant and the City Manager, provided that: a) sufficient funds have been appropriated for such purchase, b) the price charged by the Consultant for the provision of the serves described in Exhibit A does not increase. None of the foregoing shall 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. 1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Subsection 1.2 above and to satisfy Consultant's obligations hereunder. 1.5 Jlntentionally Deleted'. 1.6 !Intentionally Deleted'. Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $44,999, notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 1 of 14 216 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit B, 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. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the Parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. No individual performing work under this Agreement shall bill more than 2,000 hours in a fiscal year unless approved, in writing, by the City Manager or his/her designee. Invoices shall contain the following information: ■ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; ■ The beginning and ending dates of the billing period; • The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder; ■ The Consultant's signature; • Consultant shall give separate notice to the City when the total number of hours worked by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours within a 12-month period under this Agreement and any other agreement between Consultant and City. Such notice shall include an estimate of the time necessary to complete work described in Exhibit A and the estimate of time necessary to complete work under any other agreement between Consultant and City, if applicable. 2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. Jlntentionally Deletedl. Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 2of14 217 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B. 2.6 IIntentionally Deletedi. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date. 2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before fully executing this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below 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. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 3 of 14 218 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work. 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 or proposal. 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 to City that such insurance is in effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF THIS AGREEMENT PRIOR TO EXECUTION. Consultant shall maintain all required insurance listed herein for the duration of this Agreement. 4.1 Workers' Compensation. 4.1.1 General Requirements. 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 $1,000,000 per accident. In the alternative, Consultant may rely on a self-insurance program to meet these 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 California Labor Code shall be solely in the discretion of the Contract Administrator. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the Consultant, its employees, agents, and subcontractors. 4.1.2 Submittal Requirements. To comply with Subsection 4.1, Consultant shall submit the following: a. Certificate of Liability Insurance in the amounts specified in the section; and b. Waiver of Subrogation Endorsement as required by the section. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General Requirements. Consultant, at its own cost and expense, shall maintain commercial general liability insurance for the term of this Agreement in an amount not less than $1,000,000 and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 4 of 14 219 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including without limitation, blanket contractual liability and the use of owned and non -owned automobiles. 4.2.2 Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an "occurrence" basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001, 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 a certified endorsement to the policy: a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims -made basis. b. City, its officers, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the Consultant; or automobiles owned, leased, hired, or borrowed by the Consultant. c. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation. d. For any claims related to this Agreement or the work hereunder, 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. 4.2.4 Submittal Requirements. To comply with Subsection 4.2, Consultant shall submit the following: a. Certificate of Liability Insurance in the amounts specified in the section; b. Additional Insured Endorsement as required by the section; c. Waiver of Subrogation Endorsement as required by the section; and d. Primary Insurance Endorsement as required by the section. Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 5 of 14 220 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 4.3 Professional Liability Insurance. 4.3.1 General Requirements. 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 $2,000,000 covering the licensed professionals' errors and omissions. Any deductible or self -insured retention shall not exceed $150,000 per claim. 4.3.2 Claims -Made Limitations. The following provisions shall apply if the professional liability coverage is 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 3 years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims -made policy form with a retroactive date that precedes the date of this Agreement, Consultant shall purchase an extended period coverage for a minimum of 3 years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement. 4.3.3 Submittal Requirements. To comply with Subsection 4.3, Consultant shall submit the Certificate of Liability Insurance in the amounts specified in the section. 4.4 All Policies Requirements. 4.4.1 Acceptability of Insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.4.2 Verification of Coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete copies of all Certificates of Liability Insurance delivered to Consultant by the insurer, including complete copies of all endorsements attached to the policies. All copies of Certificates of Liability Insurance and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Consultant beginning work, it shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time. Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 6 of 14 221 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 4.4.3 Deductibles and Self -Insured Retentions. Consultant shall disclose to and obtain the written 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. 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, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. 4.4.4 Wasting Policies. No policy required by this Section 4 with the exception of Consultants Professional Liability insurance, shall include a "wasting" policy limit (i.e. limit that is eroded by the cost of defense). 4.4.5 Endorsement Requirements. Each insurance policy required by Section 4 shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days' prior written notice has been provided to the City. 4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: ■ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; • Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or ■ Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Refer to the attached Exhibit C, which is incorporated herein and made a part of this Agreement. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. This Agreement shall not be construed as an agreement for employment. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 7of14 222 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Consultant further acknowledges that Consultant performs Services outside the usual course of the City's business; and is customarily engaged in an independently established trade, occupation, or business of the same nature as the Consultant performs for the City and has the option to perform such work for other entities. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant's failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 8 of 14 223 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a "Protected Characteristic"), 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 include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 30 days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 9 of 14 224 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but are not limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder with the exception of Consultant's proprietary computer models, shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 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 Subsection 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 10 of 14 225 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $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 3 years after final payment under the Agreement. Section 10. MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Section 1090 et seq. Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 11 of 14 226 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 Consultant hereby warrants that it is not now, nor has it been in the previous 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 12 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 California Government Code Section 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of California Government Code Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the State of California. At City's sole discretion, Consultant may be required to file with the City a Form 700 to identify and document Consultant's economic interests, as defined and regulated by the California Fair Political Practices Commission. If Consultant is required to file a Form 700, Consultant is hereby advised to contact the Dublin City Clerk for the Form 700 and directions on how to prepare it. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by the City Manager ("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: Keyser Marston Associates, Inc. Attn: Debbie M. Kern 2040 Bancroft Way, Suite 302 Berkeley, CA 94704 Any written notice to City shall be sent to: City of Dublin Attn: Hazel Wetherford 100 Civic Plaza Dublin, CA 94568 10.11 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, and C represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. Exhibit A Scope of Services Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 12 of 14 227 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 Exhibit B Compensation Schedule & Reimbursable Expenses Exhibit C Indemnification 10.12 Counterparts and Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. Counterparts delivered and/or signatures executed by City -approved electronic or digital means shall have the same force and effect as the use of a manual signature. Both Parties desire this Agreement to be electronically signed in accordance with applicable federal and California law. Either Party may revoke its agreement to use electronic signatures at any time by giving notice to the other Party. 10.13 Certification per Iran Contracting Act of 2010. In the event that this contract is for one million dollars ($1,000,000.00) or more, by Consultant's signature below Consultant certifies that Consultant, and any parent entities, subsidiaries, successors or subunits of Consultant are not identified on a list created pursuant to subdivision (b) of Section 2203 of the California Public Contract Code as a person engaging in investment activities in Iran as described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b) of Section 2202.5 of the California Public Contract Code, as applicable. SIGNATURES ON FOLLOWING PAGE Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 13 of 14 228 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear below certify that they are authorized to sign on behalf of the respective Party. CITY OF DUBLIN rDocuSi: C33030CrrC044C0... Linda Smith, City Manager Attest: p— DocuSigned by: C 6f§-&, —9bb Ukf1 U' 2F4UA... Marsha Moore, City Clerk Approved as to Form: c—DocuSigned by: ,jar w bisiep far `JtUD. S /S 4254.. John akker, City Attorney 3070368.1 KEYSER MARSTON ASSOCIATES, INC. DocuSigned by: 07611-036101D123... Debbie M. Kern, Managing Principal Consulting Services Agreement between City of Dublin and Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services July 15, 2022 Page 14 of 14 229 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 ADVISORS IN: RDA ESE*TE AIMADAM! H JSING ECONOAUC DEVILORIAEIrT EEn[EaER A [PRAT REISFR TIM011IY C. Riff,' DEEEI M KILN DAYID ❑OI Loa ANGELES K TIILEFN H. HEx I1WEs*. RAM GRLCORY D. SOO-HDO KERN L EHLGS. TALI [uuT L RDAIEr T1M SREl7 Sur D]ECD PAUL C REARM EXHIBIT A SCOPE OF SERVICES KEYSER iviARSTON ASSOCIATES, ADVISORS IN NJ RLICIPRLvATE REAL ESTATE DEYELOPAAENT July 6, 2022 Hazel L.1Netherford Economic Development Director City of Dublin 100 Civic Plaza Dublin, CA 94568 Re: Proposal to Provide On CaII Real Estate Consulting Services Dear Hazel: In response to your request, Keyser Marston Associates, Inc. (KMA) is please to provide this proposal to provide as needed real estate and development consulting services. As we understand it, the City of Dublin wishes to retain KMA on an as -needed basis to work en various real estate and development related assignments as they arise. The work will be conducted in accordance v►ith KMA's current hourly rate schedule, which is attached. Thank you for requesting this proposal. We look forward to working with the City of Dublin. Sincerely, KEYSER MARSTON ASSOCIATES, INC. Debbie M. Kem 2040 BANCROFT WAY. SUITE302 = BERKELEY.CALIFORNIA 94704 F PHONE 415398305G = FAIC415 397 5065 90Ob-IB16 dacx f WWW. KEYS ERMARSTON .COM Consulting Services Agreement between City of Dublin and July 15, 2022 Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services Exhibit A — Page 1 of 1 230 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 EXHIBIT B COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES KEYSER MARSTON ASSOCIATES, INC. PUBLIC SECTOR HOURLY RATES 202112022 CHAIRMAN, PRESIDENT, MANAGING PRINCIPALS* S290_00 SENIOR PRINCIPALS* S280_00 PRINCIPALS* S260_00 MANAGERS* S235,00 SENIOR ASSOCIATES S195_00 ASSOCIATES S175_04 SENIOR ANALYSTS S160.00 ANALYSTS S 140.00 TECHNICAL STAFF S I00.00 ADMINISTRATIVE STAFF $85.00 Directly related job expenses not included in the above rates are: auto mileage, parking, air fares, hotels and motels, meals, car rentals_ taxies, telephone calls, delivery, electronic data processing, graphics and printing. Directly related job expenses will be billed at 110 of cost. Mont* billings for staff time and expenses incurred during the period will be payable within thirty (30) days of invoice date. * Rates for individuals in these categories will be increased by 50% for time spent in court testimony. Consulting Services Agreement between City of Dublin and July 15, 2022 Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services Exhibit B — Page 1 of 1 231 DocuSign Envelope ID: 183FFA6A-FC1 B-4004-A344-646AB4F75C20 EXHIBIT C INDEMNIFICATION Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, elected officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with Consultant's negligence or willful misconduct in the performance of the services called for or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City. Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of Consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782. The Consultant's obligation to defend and indemnify shall not be excused because of the Consultant's inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days to the tender of any claim for defense and indemnity by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense, whichever occurs first. Consulting Services Agreement between City of Dublin and July 15, 2022 Keyser Marston Associates, Inc for On -Call Real Estate Consulting Services Exhibit C — Page 1 of 1 232