HomeMy WebLinkAboutReso 50-13 Passatempo Pk Const Mgmt RESOLUTION NO. 50 - 13
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AGREEMENT WITH
E. MAJDALANI CONSTRUCTION MANAGEMENT, INC.
FOR CONSTRUCTION MANAGEMENT SERVICES
RELATED TO PASSATEMPO PARK
WHEREAS, the City of Dublin requires construction management services; and
WHEREAS, the qualifications of E. Majdalani Construction Management are
appropriate for the work proposed; and
WHEREAS, E. Majdalani Construction Management has successfully
demonstrated the ability to provide these services while providing similar services for
the City on the Fallon Sports Park construction project.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Dublin hereby approves the agreement (attached hereto as Exhibit A) with EM
Construction Management for construction management services, in an amount not to
exceed $99,000
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
agreement.
PASSED, APPROVED AND ADOPTED this 16th day of April, 2013, by the
following vote:
AYES: Councilmembers Biddle, Gupta, Hart, Haubert, and Mayor Sbranti
NOES: None
ABSENT: None
•
ABSTAIN: None
JAL /UXJ[ri.
Mayor
ATTEST:
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City Clerk
Reso No. 50-13,Adopted 4-16-13, Item 4.5 Page 1 of 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
E. MAJDALANI CONSTRUCTION MANAGEMENT
THIS AGREEMENT for consulting services is made by and between the City of Dublin("City')and
E. Majdalani Construction Management("Consultant")as of April 16,2013.
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement,Consultant
shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and
place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms
of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the date first noted above
and shall end on December 31,2013,the date of completion specified in Exhibit A,and
Consultant shall complete the work described in Exhibit A prior to that date,unless the
term of the Agreement is otherwise terminated or extended,as provided for in Section 8.
The time provided to Consultant to complete the services required by this Agreement shall
not affect the City's right to terminate the Agreement,as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Consultant is engaged in the geographical area in
which Consultant practices its profession. Consultant shall prepare all work products
required by this Agreement in a substantial,first-class manner and shall conform to the
standards of quality 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 1.1 above and to satisfy Consultant's obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed ninety-nine
thousand dollars even($99,000), notwithstanding any contrary indications that may be contained in
Consultant's proposal,for services to be performed and reimbursable costs incurred under this Agreement.
In the event of a conflict between this Agreement and Consultant's proposal,attached as Exhibit 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
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Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to
exceed ninety-nine thousand dollars even ($99,000), notwithstanding any contrary
indications that may be contained in Consultant's proposal, for services to be performed
and reimbursable costs incurred under this Agreement. In the event of a conflict
between this Agreement and Consultant's proposal, attached as Exhibit 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.
Notwithstanding the "not to exceed" compensation amount in the preceding paragraph,
the Contract Administrator may authorize payment above the "not to exceed" amount to
allow Consultant to provide additional services, or, to compensate Consultant for .
services provided within the original scope of work in excess of the hours specified in
Exhibit A. In no event, however, shall the Contract Administrator authorize payment of
such additional payments in excess of 10% of the "not to exceed" amount.
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;
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• The total number of hours of work performed under the Agreement
by Consultant and each employee, agent, and subcontractor of
Consultant performing services hereunder, as well as a separate
notice when the total number of hours of work by Consultant and
any individual employee, agent, or subcontractor of Consultant
reaches or exceeds 800 hours, which shall include an estimate of
the time necessary to complete the work described in Exhibit A;
• The Consultant's signature.
2.2 Monthly Payment. City shall make monthly payments, based on invoices
received, for services satisfactorily performed, and for authorized
reimbursable costs incurred. City shall have 30 days from the receipt of
an invoice that complies with all of the requirements above to pay '
Consultant.
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant
to this Agreement within sixty (60) days after completion of the services
and submittal to City of a final invoice, if all services required have been
satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by
Consultant pursuant to this Agreement. City shall not pay any additional
sum for any expense or cost whatsoever incurred by Consultant in
rendering services pursuant to this Agreement. City shall make no
payment for any extra, further, or additional service pursuant to this
Agreement.
In no event shall Consultant submit any invoice for an amount in excess of
the maximum amount of compensation provided above either for a task or
for the entire Agreement, unless the Agreement is modified prior to the
submission of such an invoice by a properly executed change order or
amendment.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis
shall not exceed the amounts shown on the following fee schedule:
Construction Manager: $130.00 per hour
Project Administrator: $65.00 per hour
2.6 Reimbursable Expenses. Reimbursable expenses are specified below,
and shall not exceed seven hundred and twenty dollars ($720). Expenses
not listed below are not chargeable to City. Reimbursable expenses are
included in the total amount of compensation provided under this
Agreement that shall not be exceeded.
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Postage and Delivery charged at cost plus 15%
2.7 Payment of Taxes. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal
or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant
terminates this Agreement pursuant to Section 8, the City shall
compensate the Consultant for all outstanding costs and reimbursable
expenses incurred for work satisfactorily completed as of the date of
written notice of termination. Consultant shall maintain adequate logs and
timesheets 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 shall furnish physical facilities such as desks, filing cabinets, and conference space,
as may be reasonably necessary for Consultant's use while consulting with City
employees and reviewing records and the information in possession of the City. The
location, quantity, and time of furnishing those facilities shall be in the sole discretion of
City. In no event shall City be obligated to furnish any facility that may involve incurring
any direct expense, including but not limited to computer, long-distance telephone or
other communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before 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.
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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 canceled except
after thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City. Consultant shall notify City within
14 days of notification from Consultant's insurer if such coverage is
suspended, voided or reduced in coverage or in limits.
4.2 Commercial General and Automobile Liability Insurance.
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
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shall be at least as broad as Insurance Services Office Automobile
Liability form CA 0001 Code 1 ("any auto").
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 additional insureds with respect to each of the
following: liability arising out of activities performed by or on
behalf of Consultant, including the insured's general
supervision of Consultant; products and completed
operations of Consultant; premises owned, occupied, or
used by Consultant; and automobiles owned, leased, or
used by the 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
canceled except after thirty (30) days' prior written notice by
certified mail, return receipt requested, has been given to the
City. Consultant shall notify City within 14 days of
notification from Consultant's insurer if such coverage is
suspended, voided or reduced in coverage or in limits.
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.
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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
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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.
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:
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• 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
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.
Notwithstanding the foregoing, to the extent that this Agreement is a "construction
contract" as defined in California Civil Code section 2783, as amended from time to
time, such duty to indemnify shall not apply when to do so would be prohibited by
California Code section 2782.
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
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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. Notwithstanding any other City, state, or federal policy, rule,
regulation, law, or ordinance to the contrary, Consultant and any of its
employees, agents, and subcontractors providing services under this
Agreement shall not qualify for or become entitled to, and hereby agree to
waive any and all claims to, any compensation, benefit, or any incident of
employment by City, including but not limited to eligibility to enroll in the
California Public Employees Retirement System (PERS) as an employee
of City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits.
6.2 Consultant 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.
7.4 Licenses and Permits. Consultant represents and warrants to City that
Consultant and its employees, agents, and any subcontractors have all
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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. 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
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any otherwise reimbursable expenses incurred during the extension
period.
8.3 Amendments. The parties may amend this Agreement only by a writing
signed by all the parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and
agree that this Agreement contemplates personal performance by
Consultant and is based upon a determination of Consultant's unique
personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of
Consultant. Consultant may not assign this Agreement or any interest
therein without the prior written approval of the Contract Administrator.
Consultant shall not subcontract any portion of the performance
contemplated and provided for herein, other than to the subcontractors
noted in the proposal, without prior written approval of the Contract
Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement
and all provisions of this Agreement allocating liability between City and
Consultant shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches
any of the terms of this Agreement, City's remedies shall 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,
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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 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.
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City of Dublin and E. Majdalani Construction Management Page 13 of 14
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 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.
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City of Dublin and E. Majdalani Construction Management Page 14 of 14
10.8 Solicitation. Consultant agrees not to solicit business at any meeting,
focus group, or interview related to this Agreement, either orally or through
any written materials.
10.9 Contract Administration. This Agreement shall be administered by the
City Manager ("Contract Administrator"). All correspondence shall be
directed to or through the Contract Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to:
Elia Majdalani, Vice President
E. Majdalani Construction Management
11 Embarcadero W, Suite 210
Oakland, CA 94607
Any written notice to City shall be sent to:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
10.11 Professional Seal. Where applicable in the determination of the contract
administrator, the first page of a technical report, first page of design
specifications, and each page of construction drawings shall be
• stamped/sealed and signed by the licensed professional responsible for
the report/design preparation. The stamp/seal shall be in a block entitled
"Seal and Signature of Registered Professional with report/design
responsibility," as in the following example.
Seal and Signature of Registered Professional
with report/design responsibility.
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.
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City of Dublin and E. Majdalani Construction Management Page 15 of 14
CITY OF DUBLIN CONSULTANT
Joni Pattillo, City Manager Elia Majdalani, Vice President
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
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City of Dublin and E. Majdalani Construction Management Page 16 of 14
SCOPE OF SERVICES
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Consulting Services Agreement between April 16, 2013
City of Dublin and E. Majdalani Construction Management—Exhibit A to Agreement Page 1 of 1