HomeMy WebLinkAboutReso 76-12 On-Call Landscap Architect RESOLUTION NO. 76 - 12
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING CONSULTING SERVICES AGREEMENTS FOR A. S. DUTCHOVER &
ASSOCIATES; CANNON DESIGN GROUP; DAVID L. BABBY, RCA; DAVID BABCOCK &
ASSOCIATES; GRAINGER HUNT; JERRY HAAG & ASSOCIATES; PAUL NIEMUTH &
ASSOCIATES; PLACEMAKERS; ROSEN GOLDBERG DER & LEWITZ; STEVENSON
PORTO & PIERCE AND WRA, INC.; AND FEE AMENDMENT AGREEMENTS FOR
ENVIRONMENTAL FORESIGHT, INC.; KLUBER AND ASSOCIATES, INC.; AND URBAN
PLANNING PARTNERS
WHEREAS, the City of Dublin ("the City") and the firms of A. S. DUTCHOVER &
ASSOCIATES; CANNON DESIGN GROUP; DAVID L. BABBY, RCA; DAVID BABCOCK &
ASSOCIATES; GRAINGER HUNT; JERRY HAAG & ASSOCIATES; PAUL NIEMUTH &
ASSOCIATES; PLACEMAKERS; ROSEN GOLDBERG DER & LEWITZ; STEVENSON PORTO
& PIERCE AND WRA, INC. ("the Consultants") have previously entered into agreements ("the
Agreements") whereby the Consultants have agreed to provide certain planning, biological, and
landscape architecture services on an as-needed basis; and
WHEREAS, the City and the Consultants now desire to increase the hourly rates under
the Agreements from $100 per hour to $103.50 per hour; and
WHEREAS, the Agreements, attached as Exhibits A — K, have been updated and
standardized, implementing the rate increase for each of the Consultants and have been
reviewed and approved as to form by the City Attorney's Office; and.
WHEREAS, on October 18, 2011, the City entered into Agreements with three new firms
ENVIRONMENTAL FORESIGHT, INC.; KLUBER AND ASSOCIATES, INC.; AND URBAN
PLANNING PARTNERS; and
WHEREAS, only Exhibit B (Compensation Schedule) to the Agreements for
ENVIRONMENTAL FORESIGHT, INC.; KLUBER AND ASSOCIATES, INC.; AND URBAN
PLANNING PARTNERS have changed to increase the hourly rate from $100 per hour to
$103.50 per hour (attached as Exhibits L— N to the Resolution).
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
approve the Agreements and Amendments.
BE IT FURTHER RESOLVED that the City Manager is directed and authorized to
execute the Agreements on behalf of the City.
Reso, No. 76-12,Adopted 6-5-12, Item 4.8 Page 1 of 2
PASSED, APPROVED AND ADOPTED this 5th day of June, 2012 by the following vote:
AYES: Councilmembers Biddle, Hart, Hildenbrand, Swalwell, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
N Lam;
Mayor
ATTEST:
Ca7vti fricc17-
City Clerk
Reso, No. 76-12,Adopted 6-5-12, Item 4.8 Page 2 of 2
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND A.S. DUTCHOVER&ASSOCIATES
ON-CALL CONTRACT FOR LANDSCAPE ARCHITECTURE SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and A. S.
Dutchover&Associates("Consultant")as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
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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. 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;
• At City's option, for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder, as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 JReserved.l
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
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City of Dublin and A.S.Dutchover&Associates Page 2 of 11
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termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the Califomia Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
• for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents,or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits
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4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals' errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30) days' prior written notice
by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
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4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available, or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
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City of Dublin and A. S. Dutchover&Associates Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
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
applicable to the performance of the work hereunder.
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.
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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.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
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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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
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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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three(3)years after final payment under the Agreement.
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 Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Govemment Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
Consulting Services Agreement between May 15, 2012
City of Dublin and A. S. Dutchover&Associates Page 10 of 11
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to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
Al Dutchover
A. S. Dutchover&Associates
40 California Avenue, Suite M
Pleasanton CA 94566
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements, either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Al Dutchover, Landscape Architect
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
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City of Dublin and A.S.Dutchover&Associates Page 11 of 11
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural, ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Compensation Schedule).
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City of Dublin and A.S. Dutchover&Associates I Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12(July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
1854375.1
Consulting Services Agreement between May 15,2012
City of Dublin and A. S. Dutchover&Associates I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND CANNON DESIGN GROUP
ON-CALL CONTRACT FOR PLANNING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Cannon
Design Group("Consultant") as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
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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. 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;
• At City's option,for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder, as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 JReserved.l
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
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City of Dublin and Cannon Design Group Page 2 of 11
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. 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
Employers Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
retum receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits
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4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals' errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30)days' prior written notice
by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
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4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available, or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
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City of Dublin and Cannon Design Group Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or,not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
•
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
applicable to the performance of the work hereunder.
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.
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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.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
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City of Dublin and Cannon Design Group Page 8 of 11
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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
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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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three(3)years after final payment under the Agreement.
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 Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Govemment Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
Consulting Services Agreement between May 15,2012
City of Dublin and Cannon Design Group Page 10 of 11
to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
Larry Cannon
Cannon Design Group
700 Larkspur Landing Circle, Suite 199
Larkspur, CA 94939
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements,either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Larry Cannon, Principal
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
Consulting Services Agreement between May 15, 2012
City of Dublin and Cannon Design Group Page 11 of 11
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural, ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adiustment of Rates
Hourly rates shall be those set forth in Exhibit B (Compensation Schedule).
Consulting Services Agreement between May 15, 2012
City of Dublin and Cannon Design Group I Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12(July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
1854375.1
Consulting Services Agreement between May 15,2012
City of Dublin and Cannon Design Group I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND DAVID L. BABBY
ON-CALL CONTRACT FOR ARBORIST SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and David L.
Babby("Consultant")as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this •
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultants profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
Consulting Services Agreement between May 15, 2012
City of Dublin and David L.Babby Page 1 of 11
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. 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;
• At City's option, for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder, as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 JReserved.l
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
Consulting Services Agreement between May 15,2012
City of Dublin and David L.Batty Page 2 of 11
•
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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City of Dublin and David L. Babby Page 3 of 11
4.2.1 General requirements. Consultant, at its own cost and expense,shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents,or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits
Consulting Services Agreement between May 15,2012
City of Dublin and David L. Babby Page 4 of 11
•
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals'errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30)days' prior written notice
by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
Consulting Services Agreement between May 15, 2012
City of Dublin and David L. Babby Page 5 of 11
4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available, or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 . Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
•
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
Consulting Services Agreement between May 15, 2012
City of Dublin and David L. Babby Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultants services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
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
applicable to the performance of the work hereunder.
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.
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City of Dublin and David L. Babby Page 7 of 11
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.
7.5 Nondiscrimination and Equal Opportunity Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
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City of Dublin and David L.Babby Page 8 of 11
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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
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City of Dublin and David L.Babby Page 9 of 11
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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three (3)years after final payment under the Agreement.
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 Govemment Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Govemment Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
Consulting Services Agreement between May 15, 2012
City of Dublin and David L. Babby Page 10 of 11
to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code§ 1090 and, if applicable, will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
David L. Babby
PO BOX 25295
San Mateo, CA 94402
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements, either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager David L. Babby, Principal
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
Consulting Services Agreement between May 15,2012
City of Dublin and David L. Babby Page 11 of 11
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural, ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates ,
Houdy rates shall be those set forth in Exhibit B (Compensation Schedule).
Consulting Services Agreement between May 15,2012
City of Dublin and David L. Babby I Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12 (July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
•
1854375.1
Consulting Services Agreement between May 15, 2012
City of Dublin and David L. Babby I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND DAVID E. BABCOCK&ASSOCIATES
ON-CALL CONTRACT FOR PLANNING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and David E.
Babcock&Associates("Consultant")as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
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City of Dublin and David E. Babcock&Associates Page 1 of 11
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. 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;
• At City's option, for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder, as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 JReserved.l
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
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City of Dublin and David E. Babcock&Associates Page 2 of 11
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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City of Dublin and David E. Babcock&Associates Page 3 of 11
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended,voided or reduced in coverage or in limits
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City of Dublin and David E.Babcock&Associates Page 4 of 11
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals'errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30)days' prior written notice
by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
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City of Dublin and David E. Babcock&Associates Page 5 of 11
4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available, or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
• written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 . Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents,, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
Consulting Services Agreement between May 15,2012
City of Dublin and David E. Babcock&Associates Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement. '
6.2 Waiver of Employee Benefits. 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 Califomia 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
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
applicable to the performance of the work hereunder.
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.
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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.
7.5 Nondiscrimination and Equal Opportunity, Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City.and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
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City of Dublin and David E. Babcock&Associates Page 8 of 11
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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
Consulting Services Agreement between May 15, 2012
City of Dublin and David E. Babcock&Associates Page 9 of 11
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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City, •
for a period of three(3)years after final payment under the Agreement.
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 Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Govemment Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
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City of Dublin and David E. Babcock&Associates Page 10 of 11
to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code§ 1090 and, if applicable, will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
David E. Babcock
David E. Babcock&Associates
• 3581 Mt Diablo Blvd., Suite 235
Lafayette CA 94549 .
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations,or agreements, either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager David E. Babcock, Principal
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
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City of Dublin and David E. Babcock&Associates Page 11 of 11
•
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural, ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B(Compensation Schedule).
•
Consulting Services Agreement between May 15, 2012
City of Dublin and David E. Babcock&Associates Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12(July 1, 2011 through June 30,2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
1854375.1
Consulting Services Agreement between May 15,2012
City of Dublin and David E. Babcock&Associates I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND GRAINGER HUNT
ON-CALL CONTRACT FOR ECOLOGIST SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Grainger
Hunt("Consultant") as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
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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. 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;
• At City's option, for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder, as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 JReserved.j
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
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City of Dublin and Grainger Hunt Page 2 of 11
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended,voided or reduced in coverage or in limits
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City of Dublin and Grainger Hunt Page 4 0111
4.3 Professional_Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals' errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30)days' prior written notice
by certified mail, retum receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
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4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available, or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
• authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are altematives to other
remedies City may have and are not the exclusive remedy for Consultant's breach:
• Obtain such insurance and deduct and retain the amount of the premiums for such insurance
from any sums due under the Agreement;
• Order Consultant to stop work under this Agreement or withhold any payment that becomes due
to Consultant hereunder, or both stop work and withhold any payment, until Consultant
demonstrates compliance with the requirements hereof;and/or
• Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
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City of Dublin and Grainger Hunt Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the Califomia Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
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
applicable to the performance of the work hereunder.
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.
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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.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
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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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
Consulting Services Agreement between May 15,2012
City of Dublin and Grainger Hunt Page 9 of 11
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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three (3)years after final payment under the Agreement.
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 Northem 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 Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
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to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code § 1090 and, if applicable,will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
Grainger Hunt
552-205 James Dr.
McArthur, CA 96056
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements, either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Grainger Hunt
Attest:
Caroline Soto, City Clerk
•
Approved as to Form:
John Bakker, City Attorney
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City of Dublin and Grainger Hunt Page 11 of 11
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural,ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Compensation Schedule).
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City of Dublin and Grainger Hunt j Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12 (July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
1854375.1
Consulting Services Agreement between May 15,2012
City of Dublin and Grainger Hunt I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND JERRY HAAG
ON-CALL CONTRACT FOR ENVIRONMENTAL SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Jerry
Haag ("Consultant")as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultants profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, notwithstanding any contrary indications that may be contained in
Consultants proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the
event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of
compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant 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, 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.
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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. 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;
• At City's option, for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder, as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent,or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 JReserved.l
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B.
Except as otherwise provided in Exhibit B, no reimbursable expenses shall be paid.
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
Consulting Services Agreement between May 15, 2012
City of Dublin and Jerry Haag Page 2 of 11
•
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employers Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employers Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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4.2.1 General requirements, Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
'of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents,or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended,voided or reduced in coverage or in limits
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City of Dublin and Jerry Haag Page 4 of 11
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals'errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30)days' prior written notice
by certified mail, retum receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
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4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available,or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
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City of Dublin and Jerry Haag Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the Califomia Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultants services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied,to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
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
applicable to the performance of the work hereunder.
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.
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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.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty(30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
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City of Dublin and Jerry Haag Page 8 of 11
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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
Consulting Services Agreement between May 15,2012
City of Dublin and Jerry Haag Page 9 of 11
•
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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three(3)years after final payment under the Agreement.
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 Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
Consulting Services Agreement between May 15,2012
City of Dublin and Jerry Haag Page 10 of 11
to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code§ 1090 and, if applicable, will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
Jerry Haag
2029 University Avenue
Berkeley, CA 94704
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations,or agreements,either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Jerry Haag, Principal
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
Consulting Services Agreement between May 15,2012
City of Dublin and Jerry Haag Page 11 of 11
•
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural, ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Compensation Schedule).
Consulting Services Agreement between May 15, 2012
City of Dublin and Jerry Haag I Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12 (July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed$103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant hereby agrees that no payment will be made for any extra or additional services unless such extra
services and the cost of such services are agreed to in writing, executed by the City Manager or other designated
City official authorized to obligate City thereto prior to the time such extra service is rendered.
Consultant hereby agrees that the services to be provided under this Agreement may be terminated without cause at
any point in time in the sole and exclusive discretion of City. In this event, City shall compensate Consultant for all
outstanding costs incurred as of the date of written notice thereof and shall terminate this Agreement. Consultant
shall maintain adequate logs and timesheets in order to verify costs incurred to date.
Consultant hereby agrees that Consultant is not authorized to perform any services or incur any costs whatsoever
under the terms of this Agreement until receipt of a fully executed Purchase Order from the Finance Department of
the City of Dublin.
1854375.1
Consulting Services Agreement between May 15,2012
City of Dublin and Jerry Haag I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND PAUL NIEMUTH &ASSOCIATES
ON-CALL CONTRACT FOR LANDSCAPE ARCHITECTURAL SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Paul
Niemuth &Associates("Consultant") as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
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City of Dublin and Paul Niemuth&Associates Page 1 of 11
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. 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;
• At City's option, for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder,as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 JReserved.l
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
Consulting Services Agreement between May 15,2012
City of Dublin and Paul Niemuth&Associates Page 2 of 11
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employers Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employers Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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City of Dublin and Paul Niemuth&Associates Page 3 of 11
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits
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City of Dublin and Paul Niemuth&Associates Page 4 of 11
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals'errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30)days' prior written notice
by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
• any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
Consulting Services Agreement between May 15,2012
City of Dublin and Paul Niemuth&Associates Page 5 of 11
4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available,or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
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City of Dublin and Paul Niemuth&Associates Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the Califomia Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
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
applicable to the performance of the work hereunder.
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.
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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.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of,
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
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City of Dublin and Paul Niemuth&Associates Page 8 of 11
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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
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City of Dublin and Paul Niemuth&Associates Page 9 of 11
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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three (3)years after final payment under the Agreement.
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 Northem 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 Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Govemment Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
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to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code§ 1090 and, if applicable,will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
Paul Niemuth
Paul Niemuth &Associates
39270 Paseo Padre Parkway,#155
Fremont, CA 94538
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements,either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Paul Niemuth
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
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EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural, ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Compensation Schedule).
•
Consulting Services Agreement between May 15, 2012
City of Dublin and Paul Niemuth&Associates I Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12(July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
1854375.1
Consulting Services Agreement between May 15,2012
City of Dublin and Paul Niemuth&Associates I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND PLACEMAKERS
ON-CALL CONTRACT FOR ENVIRONMENTAL SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Placemakers("Consultant")as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
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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. 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;
• At City's option, for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
•
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder, as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 fReserved.j
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
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City of Dublin and Placemakers Page 2 of 11
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
• limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits
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4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals'errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30) days' prior written notice
by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
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•
4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available,or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
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endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement;Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
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
applicable to the performance of the work hereunder.
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.
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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.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
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City of Dublin and Placemakers Page 8 of 11
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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
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City of Dublin and Placemakers Page 9 of 11
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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three(3)years after final payment under the Agreement.
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 Califomia
Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No
officer or employee of City shall have any financial interest in this Agreement that would violate
California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee,agent, appointee,or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
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City of Dublin and Placemakers Page 10 of 11
to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code § 1090 and, if applicable,will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
Patricia Jeffery
Placemakers
1500 Park Avenue, Loft 310
Emeryville, CA 94608
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements, either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Patricia K.Jeffery
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
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City of Dublin and Placemakers Page 11 of 11
•
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural, ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates
Houdy rates shall be those set forth in Exhibit B (Compensation Schedule).
Consulting Services Agreement between May 15,2012
City of Dublin and Placemakers I Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12(July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
•
1854375.1
•
Consulting Services Agreement between May 15,2012
City of Dublin and Placemakers I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND ROSEN GOLDBERG DER& LEWITZ, INC.
ON-CALL CONTRACT FOR ACOUSTICAL&AUDIOVISUAL SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and Rosen
Goldberg Der&Lewitz, Inc. ("Consultant")as of June 5, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
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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. 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;
• At City's option,for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder, as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 !Reserved.'
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
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City of Dublin and Rosen Goldberg Der& Lewitz, Inc. Page 2 of 11
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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 fumishing those facilities shall be in the sole
discretion of City.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the Califomia Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
Automobile coverage shall be at least as broad as Insurance Services Office Automobile
Liability form CA 0001 Code 1 ("hired, non-owned and owned," if any). No endorsement
shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the insurance
coverage or added as an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits
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4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals' errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30) days' prior written notice ,
by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 fumish City with certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
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rte.
4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available, or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel acceptable by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
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City of Dublin and Rosen Goldberg Der&Lewitz, Inc. Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied,to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govem this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws
applicable to the performance of the work hereunder.
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.
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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.
7.5 Nondiscrimination and Equal Opportunity Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
Consulting Services Agreement between June 5,2012
City of Dublin and Rosen Goldberg Der& Lewitz, Inc. Page 8 of 11
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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
Consulting Services Agreement between June 5,2012
City of Dublin and Rosen Goldberg Der& Lewitz, Inc. Page 9 of 11
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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three(3)years after final payment under the Agreement.
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
Califomia Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Govemment Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
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City of Dublin and Rosen Goldberg Der& Lewitz, Inc. Page 10 of 11
to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
Harold Goldberg
Rosen Goldberg Der& Lewitz, Inc.
1100 Larkspur Landing, Circle 375
Larkspur, CA 94939
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements, either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Harold Goldberg, Principal
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
Consulting Services Agreement between June 5, 2012
City of Dublin and Rosen Goldberg Der&Lewitz, Inc. Page 11 of 11
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural, ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Compensation Schedule).
Consulting Services Agreement between June 5,2012
City of Dublin and Rosen Goldberg Der& Lewitz, Inc. I Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
•
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12 (July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
1854375.1
Consulting Services Agreement between June 5,2012
City of Dublin and Rosen Goldberg Der& Lewitz, Inc. I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND STEVENSON PORTO & PIERCE, INC.
ON-CALL CONTRACT FOR PLANNING SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Stevenson Porto & Pierce, Inc. ("Consultant") as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
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City of Dublin and Stevenson Porto& Pierce, Inc. Page 1 of 11
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. 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;
• At City's option,for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person, a brief description of the work,and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder,as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent,or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 JReserved.l
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
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City of Dublin and Stevenson Porto& Pierce, Inc. Page 2 of 11
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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City of Dublin and Stevenson Porto & Pierce, Inc. Page 3 of 11
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents,or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits
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City of Dublin and Stevenson Porto& Pierce, Inc. Page 4 of 11
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals'errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30)days' prior written notice
by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
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City of Dublin and Stevenson Porto&Pierce, Inc. Page 5 of 11
4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available, or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
Consulting Services Agreement between May 15,2012
City of Dublin and Stevenson Porto & Pierce, Inc. Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
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
applicable to the performance of the work hereunder.
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.
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City of Dublin and Stevenson Porto& Pierce, Inc. Page 7 of 11
•
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.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
Consulting Services Agreement between May 15,2012
City of Dublin and Stevenson Porto &Pierce, Inc. Page 8 of 11
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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
Consulting Services Agreement between May 15, 2012
City of Dublin and Stevenson Porto& Pierce, Inc. Page 9 of 11
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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three (3)years after final payment under the Agreement.
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 Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
Consulting Services Agreement between May 15,2012
City of Dublin and Stevenson Porto& Pierce, Inc. Page 10 of 11
to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code § 1090 and, if applicable,will be disqualified
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
Mike Porto
Stevenson Porto & Pierce, Inc.
1990 West Corporate Way
Anaheim, CA 92801
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations,or agreements,either written or oral.
CITY OF DUBLIN CONSULTANT
•
Joni Pattillo, City Manager Michael Porto, Principal
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
Consulting Services Agreement between May 15,2012
City of Dublin and Stevenson Porto&Pierce, Inc. Page 11 of 11
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural,ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Compensation Schedule).
Consulting Services Agreement between May 15, 2012
City of Dublin and Stevenson Porto & Pierce, Inc. j Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12 (July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
•
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
1854375.1
Consulting Services Agreement between May 15,2012
City of Dublin and Stevenson Porto & Pierce, Inc. I Exhibit B Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND WRA, INC.
ON-CALL CONTRACT FOR BIOLOGICAL& ENVIRONMENTAL SERVICES
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City")and WRA, Inc.
("Consultant")as of May 15, 2012.
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 Services 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 July 1, 2012 and shall end one year
thereafter, except that the Agreement shall be automatically extended from year to year unless the
Agreement is otherwise terminated, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent practitioner of
the profession in which Consultant is engaged in the geographical area in which Consultant
practices its profession. Consultant shall prepare all work products required by this Agreement in a
substantial, first-class manner and shall conform to the standards of quality normally observed by a
person practicing in Consultant's profession.
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 Section 1.2 above
and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant the hourly sum set forth in the
Compensation Schedule contained in Exhibit B, 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 A, 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, 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.
Consulting Services Agreement between May 15, 2012
City of Dublin and WRA, Inc. Page 1 of 11
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. 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;
• At City's option, for each work item in each task, a copy of the applicable time entries or time
sheets shall be submitted showing the name of the person doing the work, the hours spent
by each person,a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each
employee, agent, and subcontractor of Consultant performing services hereunder, as well as
a separate notice when the total number of hours of work by Consultant and any individual
employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours;
• The Consultant's signature.
2.2 Monthly Payment. City shall make 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 JReserved.l
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 contained in Exhibit B.
2.6 Reimbursable Expenses. Payment shall be limited to the hourly rates contained in Exhibit B. No
reimbursable expenses shall be paid.
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
Consulting Services Agreement between May 15, 2012
City of Dublin and WRA, Inc. Page 2 of 11
termination. Consultant shall maintain adequate logs and timesheets in order 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 may furnish physical facilities such as desks, telephone service, 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.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at
its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or
damages to property that may arise from or in connection with the performance of the work hereunder by the
Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance
satisfactory in all respects to the City. Consultant shall maintain the insurance policies required by this section
throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid.
Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required
insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons
employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and
Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Consultant may rely on a self-insurance program to
meet those requirements, but only if the program of self-insurance complies fully with the provisions
of the California Labor Code. Determination of whether a self-insurance program meets the
standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall
waive all rights of subrogation against the City and its officers, officials, employees, and volunteers
for loss arising from work performed under this Agreement.
An endorsement shall state that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail,
return receipt requested, has been given to the City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage
or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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City of Dublin and WRA, Inc. Page 3 of 11
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial
general and automobile liability insurance for the term of this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage for risks associated with the work contemplated by this Agreement. If a
Commercial General Liability Insurance or an Automobile Liability form or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to
the work to be performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury, including death
resulting therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as
Insurance Services Office Commercial General Liability occurrence form CG 0001.
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 an endorsement to the policy:
a. City and its officers, employees, agents, and volunteers shall be covered as
insureds with respect to each of the following: liability arising out of activities
performed by or on behalf of Consultant, including the insured's general supervision
of Consultant; products and completed operations of Consultant; premises owned,
occupied, or used by Consultant; and automobiles owned, leased, or used by the
Consultant. The coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents,or volunteers.
b. The insurance shall cover on an occurrence or an accident basis, and not on a
claims-made basis.
c. An endorsement must state that coverage is primary insurance with respect to the
City and its officers, officials, employees and volunteers, and that no insurance or
self-insurance maintained by the City shall be called upon to contribute to a loss
under the coverage.
d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall
not affect coverage provided to CITY and its officers, employees, agents, and
volunteers.
e. An endorsement shall state that coverage shall not be suspended, voided, canceled
by either party, reduced in coverage or in limits, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to the City.
Consultant shall notify City within 14 days of notification from Consultant's insurer if
such coverage is suspended, voided or reduced in coverage or in limits
Consulting Services Agreement between May 15,2012
City of Dublin and WRA, Inc. Page 4 of 11 -
4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the
period covered by this Agreement professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS
($1,000,000)covering the licensed professionals'errors and omissions.
4.3.1 Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits, except after thirty(30)days' prior written notice
by certified mail, return receipt requested, has been given to the City.
4.3.3 The policy must contain a cross liability or severability of interest clause.
4.3.4 The following provisions shall apply if the professional liability coverages are written on a
claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the
Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement or the work, so 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 must provide extended reporting coverage for a minimum of five years
after completion of the Agreement or the work. The City shall have the right to
exercise, at the Consultant's sole cost and expense, any extended reporting
provisions of the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City prior to the
commencement of any work under this Agreement.
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 certificates of insurance and with original endorsements effecting
coverage required herein. The certificates and endorsements for each insurance policy are
to be signed by a person authorized by that insurer to bind coverage on its behalf. The City
reserves the right to require complete, certified copies of all required insurance policies, at
any time.
4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the requirements stated herein.
Consulting Services Agreement between May 15,2012
City of Dublin and WRA, Inc. Page 5 of 11
•
•
4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon
a determination that the coverages, scope, limits, and forms of such insurance are either not
commercially available,or that the City's interests are otherwise fully protected.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the
approval of City for the self-insured retentions and deductibles before beginning any of the
services or work called for by any term of this Agreement.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents, and volunteers. The
Contract Administrator may condition approval of an increase in deductible or self-insured
retention levels with a requirement that Consultant procure a bond, guaranteeing payment of
losses and related investigations, claim administration, and defense expenses that is
satisfactory in all respects to each of them.
4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section
is reduced, limited, or materially affected in any other manner, Consultant shall provide
written notice to City at Consultant's earliest possible opportunity and in no case later than
five days after Consultant is notified of the change in coverage.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain
any insurance policies or policy endorsements to the extent and within the time herein required, City
may, at its sole option exercise any of the following remedies, which are 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 indemnify,
defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents,
and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action
arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal,
state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when
(1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful
misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its
employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and
Consulting Services Agreement between May 15,2012
City of Dublin and WRA, Inc. Page 6 of 11
endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and
hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for
damages whether or not such insurance policies shall have been determined to apply. By execution of this
Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this
Agreement is determined by a court of competent jurisdiction or the Califomia Public Employees Retirement System
(PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of
Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on
such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of City. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement
and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Consultant accomplishes services rendered pursuant to this
Agreement.
6.2 Waiver of Employee Benefits. 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 Califomia 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.
6.3 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority,
express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall
have no authority, express or implied, pursuant to this Agreement to bind City to any obligation
whatsoever.
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
applicable to the performance of the work hereunder.
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.
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City of Dublin and WRA, Inc. Page 7 of 11
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.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability, medical
condition, marital status, sex, or sexual orientation, against any employee, applicant for employment,
subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or
programs provided by Consultant under this Agreement. Consultant shall comply with all applicable
federal, state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are the subject
of this Agreement, including but not limited to the satisfaction of any positive obligations required of
Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include
in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to
the effective date of termination; City, however, may condition payment of such compensation upon
Consultant 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
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City of Dublin and WRA, Inc. Page 8 of 11
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 included, but not be 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 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 three (3) years, or for any longer period required by law, from the date
of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement
requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any
Consulting Services Agreement between May 15,2012
City of Dublin and WRA, Inc. Page 9 of 11
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 TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any audit of the City,
for a period of three(3)years after final payment under the Agreement.
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 Califomia
Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No
officer or employee of City shall have any financial interest in this Agreement that would violate
California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an
employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee,
or official of the City in the previous twelve months, Consultant warrants that it did not participate in
any manner in the forming of this Agreement. Consultant understands that, if this Agreement is
made in violation of Govemment Code §1090 et.seq., the entire Agreement is void and Consultant
will not be entitled to any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid
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City of Dublin and WRA, Inc. Page 10 of 11
to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified -
from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to 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 Planning 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:
Thomas Fraser
WRA, Inc.
2169 East Francisco Blvd., Suite G
San Rafael, CA 94901
Any written notice to City shall be sent to:
Planning Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein
as Exhibit A, represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations,or agreements, either written or oral.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Thomas E. Fraser, President
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
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City of Dublin and WRA, Inc. Page 11 of 11
EXHIBIT A
SCOPE OF SERVICES
Provision of Planning, Public Works, and other development services including, but not limited to, environmental,
architectural, landscape architectural,ecological and/or biological consulting services to the City of Dublin regarding:
o Processing of development entitlements
o Processing City of Dublin projects
Said services shall be performed at the direction of the Community Development Director on an as-needed basis.
Adjustment of Rates
Hourly rates shall be those set forth in Exhibit B (Compensation Schedule).
•
Consulting Services Agreement between May 15,2012
City of Dublin and Wetlands Research Associates, Inc.j Exhibit A Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal Year 11-
12(July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal Year 12-13
(July 1, 2012).
Consultant shall not bill for any reimbursable items.
•
1854375.1
Consulting Services Agreement between May 15,2012
City of Dublin and Wetlands Research Associates Inc. I Exhibit B Page 1 of 1
AMENDMENT NUMBER ONE TO CONSULTING SERVICES AGREEMENT BETWEEN
CITY OF DUBLIN AND ENVIRONMENTAL FORESIGHT, INC.
ON CALL CONTRACT FOR LANDSCAPE PLAN REVIEW SERVICES
This amendment is made and entered into this 5th day of June, 2012, by and between the City of Dublin, a municipal
corporation ("City"), and Environmental Foresight, Inc. ("Consultant"). Collectively, the City and the Consultant are
referred to as the "Parties."
RECITALS
WHEREAS, effective October 18, 2011, the Parties entered into a Consulting Services Agreement in which
the Consultant agreed to provide Landscape Plan Review services to City("Agreement"); and
WHEREAS, in Exhibit B to the Agreement, City agreed to pay Consultant at a rate not to exceed $100.00
per hour; and
WHEREAS, Staff is requesting an adjustment of rates commencing July 1, 2012; and
WHEREAS,the Parties seek to adjust the hourly rates to$103.50.
NOW, THEREFORE, in consideration of the covenants contained herein, the Parties hereto agree as
follows:
Section 1. Exhibit B of the Agreement is amended to read as follows:
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal
Year 11-12(July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed$103.50 per hour for work commencing Fiscal
Year 12-13(July 1, 2012).
Consultant shall not bill for any reimbursable items.
Section 2. The existing Agreement remains in effect except as specifically modified herein.
IN WITNESS THEREOF, the Parties hereto have executed this amendment as of the day and year first
written above.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Scott Feuer, Principal
Attest:
Caroline Soto, City Clerk
AMENDMENT NUMBER ONE TO CONSULTING SERVICES AGREEMENT BETWEEN
CITY OF DUBLIN AND KLUBER AND ASSOCIATES, INC.
ON CALL CONTRACT FOR LANDSCAPE PLAN REVIEW SERVICES
This amendment is made and entered into this 5th day of June, 2012, by and between the City of Dublin, a municipal
corporation ("City"), and Kluber and Associates, Inc. ("Consultant"). Collectively, the City and the Consultant are
referred to as the"Parties."
RECITALS
WHEREAS, effective October 18, 2011, the Parties entered into a Consulting Services Agreement in which
the Consultant agreed to provide Landscape Plan Review services to City("Agreement"); and
WHEREAS, in Exhibit B to the Agreement, City agreed to pay Consultant at a rate not to exceed $100.00
per hour; and
WHEREAS, Staff is requesting an adjustment of rates commencing July 1, 2012; and
WHEREAS,the Parties seek to adjust the hourly rates to$103.50.
NOW, THEREFORE, in consideration of the covenants contained herein, the Parties hereto agree as
follows:
Section 1. Exhibit B of the Agreement is amended to read as follows:
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal
Year 11-12(July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal
Year 12-13 (July 1, 2012).
Consultant shall not bill for any reimbursable items.
Section 2. The existing Agreement remains in effect except as specifically modified herein.
IN WITNESS THEREOF, the Parties hereto have executed this amendment as of the day and year first
written above.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Frank Kluber, Principal
Attest:
Caroline Soto, City Clerk
AMENDMENT NUMBER ONE TO CONSULTING SERVICES AGREEMENT BETWEEN
CITY OF DUBLIN AND URBAN PLANNING PARTNERS
ON CALL CONTRACT FOR LANDSCAPE PLAN REVIEW SERVICES
This amendment is made and entered into this 5th day of June, 2012, by and between the City of Dublin, a municipal
corporation ("City"), and Urban Planning Partners ("Consultant"). Collectively, the City and the Consultant are
referred to as the"Parties."
RECITALS
WHEREAS, effective October 18, 2011, the Parties entered into a Consulting Services Agreement in which
the Consultant agreed to provide Landscape Plan Review services to City("Agreement"); and
WHEREAS, in Exhibit B to the Agreement, City agreed to pay Consultant at a rate not to exceed $100.00
per hour; and
WHEREAS, Staff is requesting an adjustment of rates commencing July 1, 2012; and
WHEREAS,the Parties seek to adjust the hourly rates to$103.50.
NOW, THEREFORE, in consideration of the covenants contained herein, the Parties hereto agree as
follows:
Section 1. Exhibit B of the Agreement is amended to read as follows:
City hereby agrees to pay Consultant a sum not to exceed 100.00 per hour for work completed during Fiscal
Year 11-12(July 1, 2011 through June 30, 2012).
City hereby agrees to pay Consultant a sum not to exceed $103.50 per hour for work commencing Fiscal
Year 12-13(July 1, 2012).
Consultant shall not bill for any reimbursable items.
Section 2. The existing Agreement remains in effect except as specifically modified herein.
IN WITNESS THEREOF, the Parties hereto have executed this amendment as of the day and year first
written above.
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Lynette Dias, Principal
Attest:
Caroline Soto, City Clerk