HomeMy WebLinkAboutReso 91-25 Item 5.4 Approving Consulting Services Agreement Francisco Associates Inc. Proposition 21Reso. No. 91-25, Item 5.4, Adopted 11/04/2025 Page 1 of 2
RESOLUTION NO. 91 – 25
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AGREEMENT WITH FRANCISCO & ASSOCIATES, INC. FOR LANDSCAPE AND
LIGHTING ASSESSEMENT DISTRICT PROPOSITION 218 ENGINEERING SERVICES
WHEREAS, since 1983, a portion of the City of Dublin’s maintenance budget has been funded
through assessments levied through Landscaping and Lighting Assessment Districts (LLADs); and
WHEREAS, Assessments are levied annually within LLADs pursuant to the Landscape and Lighting
Act of 1972, Part 2 of Division 15 of the California Streets and Highways Code (“1972 Act”); and
WHEREAS, the passage of Proposition 218 in 1996 created new procedures and requirements for
all LLADs in the state, the most significant being that any new LLADs, or changes to existing LLADs, require
approval by a majority of the property owners participating in a mail out ballot process; and
WHEREAS, to ensure the City of Dublin meets the procedural requirements of Proposition 218,
Staff solicited for consultant services by issuing a Request for Proposals (RFP) for Landscaping and
Lighting Assessment District (LLAD) Proposition 218 Engineering Services in August 2025 and received
three proposals; and
WHEREAS, Staff reviewed and evaluated the proposals in accordance with the RFP rating criteria
and determined that Francisco & Associates, Inc. best met the City desired scope of services, based on
quality, completeness of the submission, and the firm’s experience with engagements of similar scope
and complexity; and
WHEREAS, the City desires to enter into an agreement with Francisco & Associates, Inc. for a not
to exceed amount of one-hundred seventy-five thousand dollars ($175,000) and an agreement term
through June 30, 2027.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby
approve the Agreement with Francisco & Associates, Inc., attached hereto as Exhibit A.
BE IT FURTHER RESOLVED that the City Manager, or designee, is authorized to execute 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}
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Reso. No. 91-25, Item 5.4, Adopted 11/04/2025 Page 2 of 2
PASSED, APPROVED AND ADOPTED this 4th day of November, 2025, by the following vote:
AYES: Councilmembers Josey, McCorriston, Morada, Qaadri and Mayor Hu
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
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CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
FRANCISCO & ASSOCIATES, INC.
FOR
ASSESSMENT DISTRICT 218 ENGINEERING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of
Dublin (“City”) and Francisco & Associates, Inc. (“Consultant”) (together sometimes
referred to as the “Parties”) as of November 4, 2025 (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 June 30, 2027, and Consultant shall
complete the work described in Exhibit A on or before 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 referenced in Section 8. Notwithstanding the foregoing this
Agreement may be extended on a month to month basis for up to 6
months 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
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standard of performance provided in Subsection 1.2 above and to satisfy
Consultant’s obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to
exceed $175,000, 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 regarding the amount of compensation
between this Agreement and Consultant’s proposal, 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;
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;
A copy of the applicable time entries or time sheets shall be submitted
showing the following:
o Daily logs of total hours worked by each individual
performing work under this Agreement
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o Hours must be logged in increments of tenths of an hour or
quarter hour
o If this Agreement covers multiple projects, all hours must
also be logged by project assignment
o 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;
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.
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant
to this Agreement within 60 days after completion of the services and
submittal to City of a final invoice, if all services required have been
satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by
Consultant pursuant to this Agreement. City shall not pay any additional
sum for any expense or cost whatsoever 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.
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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 A.
2.6 Reimbursable Expenses. Reimbursable expenses are specified in
Exhibit A. Expenses not listed in Exhibit A are not chargeable to City.
Reimbursable expenses are included in the total amount of compensation
provided under this Agreement that shall not be exceeded.
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,
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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 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
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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 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
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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.
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
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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.
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 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
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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.
Consultant shall, to the extent permitted by law, including without limitation California
Civil Code 2782 and 2782.8, indemnify, hold harmless and assume the defense of, in
any actions at law or in equity, the City, its employees, agents, volunteers, and elective
and appointive boards, from all claims, losses, and damages, including property
damage, personal injury, death, and liability of every kind, nature and description,
arising out of, pertaining to or related to the negligence, recklessness or willful
misconduct of Consultant or any person directly or indirectly employed by, or acting as
agent for, Consultant, during and after completion of Consultant’s work under this
Agreement.
With respect to those claims arising from a professional error or omission, Consultant
shall defend, indemnify and hold harmless the City (including its elected officials,
officers, employees, and volunteers) from all claims, losses, and damages arising from
the professionally negligent acts, errors or omissions of Consultant, however, the cost to
defend charged to Consultant shall not exceed Consultant’s proportionate percentage
fault.
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Consultant's obligation under this section does not extend to that portion of a claim
caused in whole or in part by the sole negligence or willful misconduct of the City.
Consultant shall also indemnify, defend and hold harmless the City from all suits or
claims for infringement of any patent rights, copyrights, trade secrets, trade names,
trademarks, service marks, or any other proprietary rights of any person or persons
because of the City or any of its officers, employees, volunteers, or agents use of
articles, products things, or services supplied in the performance of Consultant’s
services under this Agreement, however, the cost to defend charged to Consultant shall
not exceed Consultant’s proportionate percentage fault.
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 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.
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
Agreement and assignment of personnel pursuant to Subsection 1.3;
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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
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are legally required to practice their respective professions. Consultant
represents and warrants to City that Consultant and its employees,
agents, any subcontractors shall, at their sole cost and expense, keep in
effect at all times during the term of this Agreement any licenses, permits,
and approvals that are legally required to practice their respective
professions. In addition to the foregoing, Consultant and any
subcontractors shall obtain and maintain during the term of this
Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not
discriminate, on the 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
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Consultant with compensation beyond the maximum amount provided for
in this Agreement. Similarly, unless authorized by the Contract
Administrator, City shall have no obligation to reimburse Consultant for
any otherwise reimbursable expenses incurred during the extension
period.
8.3 Amendments. The Parties may amend this Agreement only by a writing
signed by all the Parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and
agree that this Agreement contemplates personal performance by
Consultant and is based upon a determination of Consultant’s unique
personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of
Consultant. Consultant may not assign this Agreement or any interest
therein without the prior written approval of the Contract Administrator.
Consultant shall not subcontract any portion of the performance
contemplated and provided for herein, other than to the subcontractors
noted in the proposal, without prior written approval of the Contract
Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement
and all provisions of this Agreement allocating liability between City and
Consultant shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches
any of the terms of this Agreement, City’s remedies shall 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.
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9.1 Records Created as Part of Consultant’s Performance. All reports,
data, maps, models, charts, studies, surveys, photographs, memoranda,
plans, studies, specifications, records, files, or any other documents or
materials, in electronic or any other form, that Consultant prepares or
obtains pursuant to this Agreement and that relate to the matters covered
hereunder shall be the property of the City. Consultant hereby agrees to
deliver those documents to the City upon termination of the Agreement. It
is understood and agreed that the documents and other materials,
including but not limited to those described above, prepared pursuant to
this Agreement are prepared specifically for the City and are not
necessarily suitable for any future or other use. City and Consultant agree
that, until final approval by City, all data, plans, specifications, reports and
other documents are confidential and will not be released to third parties
without prior written consent of both Parties.
9.2 Consultant’s Books and Records. Consultant shall maintain any and 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, 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
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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.
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
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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:
Ed Espinoza, Principal
Francisco & Associates, Inc.
231 Market Place, Suite 543
San Ramon, 94583
Any written notice to City shall be sent to:
City of Dublin
Attn: City Engineer
100 Civic Plaza
Dublin, CA 94568
10.11 Integration. This Agreement, including the scope of work attached hereto
and incorporated herein as Exhibits A 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 & Compensation Schedule/Reimbursable
Expenses
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
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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
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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 FRANCISCO & ASSOCIATES, INC.
Colleen Tribby, City Manager Ed Espinoza, Principal
Attest:
Consultant’s DIR Registration Number
(if applicable)
Marsha Moore, City Clerk
Approved as to Form:
City Attorney
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EXHIBIT A
SCOPE OF SERVICES
COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES
SCOPE OF SERVICES
Consultant shall assist the City with all aspects of the Proposition 218 process, in
compliance with the requirements of Proposition 218 and the Landscaping and Lighting
Act of 1972 (the “Act”), to facilitate the formation of a new Landscaping and Lighting
Assessment District (LLAD) to fund the ongoing maintenance and operation of
streetlighting improvements.
These aspects include:
Engineer’s Report
Proposition 218 Proceedings
Each is described in further detail below.
Proposition 218 Engineer’s Report
Consultant shall assist the City in the preparation of the required Engineer’s Report, in
compliance with the requirements of Proposition 218 and the Landscaping and Lighting
Act of 1972 (the “Act”), to facilitate the formation of a new Landscaping and Lighting
Assessment District (LLAD) to fund the ongoing maintenance and operation of
streetlighting improvements.
1.Develop Budget for new LLAD: Assist City staff in developing a comprehensive
budget for the new LLAD, including, but not limited to, costs associated with
maintenance, energy consumption, administration, and reserve fund collection.
2.Preparation of the Engineer’s Report by a Professional Engineer: Prepare
the Engineer’s Report in accordance with the requirements of the Act and
Proposition 218, including the quantification of general benefits and the
substantiation of special benefits received by each parcel within the proposed
LLAD. Special benefits shall be apportioned to each benefiting parcel based on
the proportionate special benefit received and used to determine the maximum
assessment rates. An assessment diagram delineating the boundaries of the
LLAD and identifying each parcel shall also be prepared and included in the
Engineer’s Report. The final Engineer’s Report shall be signed and sealed by a
registered professional engineer licensed in the State of California.
3.City Council Approval and Public Hearing: Assist City staff in the preparation
of City Council documents required to approve the Engineer’s Report and
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conduct proceedings in accordance with the Act and Proposition 218. This
includes, but is not limited to, drafting staff reports, resolutions, power point
presentations, and public notices. Consultant staff shall attend up to three City
Council meetings, including the required Proposition 218 public hearing, to
support staff and respond to questions from the City Council and members of the
public.
Proposition 218 Proceedings
Consultant shall further assist the City with all aspects of the Proposition 218
proceedings. Services will include dissemination of information to stakeholders;
preparation of a mailing database using the most current parcel information (including
property owner names and mailing addresses); production and mailing of required
notices and ballots; response to property owner inquiries; preparation and mailing of
replacement notices and ballots upon request; and tabulation of returned ballots.
1.Project Team Meetings: Attend virtual meetings with the project team to discuss
schedules, action items, public outreach strategy, and information that will be
provided to stakeholders.
2.Assist with Public Outreach and Dissemination of Information to
Stakeholders: Collaborate with City staff to develop a strategic plan for
stakeholder engagement and public outreach related to the proposed new LLAD.
Assist in the preparation of informational materials to be distributed to affected
property owners through mailers, social media platforms, and content for the
City’s website. Consultant shall support City staff in responding to inquiries from
City Council, property owners, and community members regarding the proposed
LLAD. Upon request, Consultant staff shall attend community meetings to
address questions and concerns raised by stakeholders.
3.Preparation of Mailing Database: Coordinate with Alameda County to obtain
the most current property data for parcels located within City limits, including
property owner names and mailing addresses. Using this data, prepare a
comprehensive mailing database for the distribution of notices and ballots in
accordance with Proposition 218 requirements.
4.Preparation of Notices and Ballots: Collaborate with project team to prepare
draft of the required notice and ballot in accordance with Proposition 218. Review
draft notice and ballot with the project team and incorporate revisions as
necessary to finalize for delivery to the mail house.
5.Production of Notices, Ballots, Outgoing Envelopes, and Return
Envelopes: Coordinate with the mail house to mail merge and print between
12,000 and 20,000 notices, ballots, outgoing and incoming envelopes. The final
count will be determined by the selected strategy for the proposed LLAD. The
outgoing envelopes will be printed on No. 10 windowed envelopes with the return
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address, stamp and a statement that the envelopes contain an official ballot
inside. The return envelopes will be printed on colored No. 9 envelopes with the
return address printed on them along with a prepaid postage stamp. The notice
will be printed as a color brochure and will include information regarding the
proposed assessment as required by Proposition 218. The ballot will be printed
on colored card stock.
6.Mailing of Notices and Ballots: Coordinate with the mail house to fold, stuff,
and apply postage to outgoing and return envelopes and deliver notices and
ballots to the post office to ensure delivery by the legal deadline. The notices and
ballots will be mailed no less than 45 days prior to the scheduled public hearing.
7.Property Owner Inquiries and Replacement Notices and Ballots:
Consultant’s phone number will be printed on the notice for property owners to
call if they have any questions related to the proposed assessment and/or
Proposition 218 procedures. If requested by property owner(s), Consultant will
provide replacement notices and ballots in the event they are lost, misplaced, or
if a property owner wishes to change their vote. These ballots will be printed on a
different colored card stock than the original ballots to ensure ballots are not
counted twice.
8.Tabulation of Ballots: After the close of the scheduled public hearing, open,
sort, and tabulate all returned ballots and prepare a summary table of the ballot
tabulation results. The table shall include but is not limited to; the number and
total assessment amount corresponding to the returned ballots in favor of the
proposed assessment, the number and total assessment amount corresponding
to the ballots opposed to the proposed assessment, the number and total
assessment amount corresponding to the ballots deemed invalid, and the
number and total assessment amount corresponding to the ballots not returned.
If a majority of ballots returned, weighted by proposed assessment, are not
opposed to the proposed assessment, the City Council may approve the
proposed LLAD and Engineer’s Report.
Performance Measures
1. Engineer’s Report:
a. Complete report and proceedings tasks in compliance with applicable federal,
state, and local laws, regulations, and standards.
b. Ninety percent (90%) of the time, be available for an online or teleconference
meeting within three business days of a meeting request from the Public Works
Department.
c. Maintain records of performance and make those records available to the Public
Works Department upon request.
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2. Other Duties:
a. Consultant shall perform other related work within the scope of services, as
mutually agreed upon between the Consultant and the Public Works Director, or
designee.
b. Fees for such services shall be based upon the Compensation Schedule and will
be negotiated and mutually agreed upon by the Consultant and the Public Works
Director, or designee.
If the Consultant is unable to meet the timelines or requirements set forth, the City will
provide written comments outlining the deficient deliverables and will, in good faith,
meet and discuss with the Consultant regarding their performance to understand the
circumstances and collaboratively identify a resolution. If performance issues persist,
and the City can reasonably demonstrate that such issues are due to the Consultant’s
actions or omissions, the City may, (i) temporarily withhold payment for the specific
deliverables in question until they are satisfactorily completed and accepted, or (ii)
request that the Consultant re-perform the services at no additional cost. Repeated and
material failure to meet agreed-upon performance measures, after reasonable
opportunity to cure and upon substantiated fault of the Consultant, may constitute
grounds for termination for cause.
COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES
Proposition 218 Services
Engineer’s Report $45,890 (Lump Sum)
Outreach and Ballot Preparations $23,900-$48,900*
Notices and Ballots $50,210-80,210*
Final Cost $120,000-$175,000*
*Final costs will depend on the actual cost of materials and postage at the time of
production and mailing, the amount of marketing and outreach, and the final number of
notices and ballots produced, mailed, and tabulated. Costs currently estimated to be
$4.00 per notice and ballot. Marketing and outreach billed at hourly rates provided
below.
Additional Analysis and As-needed Services T & M (Hourly Rates Below)
Francisco & Associates Current Billing Rate for Francisco & Associates, Inc.
Principal Engineer/Project Manager $240.00/hour
Associate Engineer $175.00/hour
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Senior Project Analyst $160.00/hour
Project Analyst $145.00/hour
Clerical $95.00/hour
Reimbursables would be billed at cost plus 15%. Reimbursable costs include County
Assessor data and maps, mileage, etc. Estimated not to exceed $1,000. Mileage would
be billed at current IRS standard mileage rates.
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