HomeMy WebLinkAboutReso 33-23 Approving the Consulting Services Agreement Between the City of Dublin and Economic and Planning Systems, Inc.Reso. No. 33-23, Item 4.5, Adopted 04/18/2023 Page 1 of 2
RESOLUTION NO. 33 - 23
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING THE CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF
DUBLIN AND ECONOMIC AND PLANNING SYSTEMS, INC.
WHEREAS, the City of Dublin Two-Year Strategic Plan includes addressing
Housing Affordability and includes objectives to evaluate the City’s current inclusionary
zoning requirement, Affordable Housing In-Lieu Fee, and Commercial Linkage Fee; and
WHEREAS, on January 23, 2023, the City issued a Request for Proposals for a
consultant to assist with preparing an Inclusionary Zoning and Affordable Housing In-Lieu
Fee Feasibility Study and Commercial Linkage Fee Nexus Study; and
WHEREAS, five proposals were submitted in response to the RFP; and
WHEREAS, Staff reviewed and evaluated the proposals and determined that
Economic & Planning Systems, Inc. best met the City desired scope of services based
on the quality and completeness of submission, cost to complete the desired tasks, and
the firm’s experience and expertise; and
WHEREAS, the City desires to enter into a consulting services agreement with
Economic & Planning Systems, Inc. for an amount not-to-exceed $79,629 to prepare an
Inclusionary Zoning and Affordable Housing In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study.
NOW, THEREFORE, BE IT RESOLVED that the Dublin City Council does hereby
approve the agreement with Economic & Planning Systems, Inc., attached hereto as
Exhibit A.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
agreement and take such further actions as may be necessary or appropriate to carry out
the City Council’s obligations pursuant to this Resolution.
{Signatures on the following page}
Reso. No. 33-23, Item 4.5, Adopted 04/18/2023 Page 2 of 2
PASSED, APPROVED AND ADOPTED this 18th day of April 2023, by the
following vote:
AYES: Councilmembers Hu, Josey, McCorriston, Qaadri and Mayor Hernandez
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 1 of 15
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
ECONOMIC AND PLANNING SYSTEMS, INC. (EPS)
FOR
INCLUSIONARY ZONING AND IN-LIEU FEE FEASIBILITY STUDY AND COMMERCIAL LINKAGE FEE
NEXUS STUDY
THIS AGREEMENT for consulting services is made by and between the City of Dublin (“City”) and
Economic & Planning Systems (EPS) (“Consultant”) (together sometimes referred to as the “Parties”) as of
April 18, 2023 (the “Effective Date”).
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant
shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and
place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms
of this Agreement and Exhibit A, the Agreement shall prevail.
1.1
1.2
1.3
1.4
Term of Services. The term of this Agreement shall begin on the Effective Date and shall
end on December 31, 2023, the date of completion specified in Exhibit A, and Consultant
shall complete the work described in Exhibit A on or before that date, unless the term of
the Agreement is otherwise terminated or extended, as provided for in Section 8. The time
provided to Consultant to complete the services required by this Agreement shall not affect
the City’s right to terminate the Agreement, as referenced in Section 8. Notwithstanding
the foregoing this Agreement may be extended on a month to month basis for up to 6
months upon the written consent of the Consultant and the City Manager, provided that: a)
sufficient funds have been appropriated for such purchase, b) the price charged by the
Consultant for the provision of the services described in Exhibit A does not increase. None
of the foregoing shall affect the City’s right to terminate the Agreement as provided for in
Section 8.
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.
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.
Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in Subsection 1.2 above and to satisfy Consultant’s obligations hereunder.
REVISED - Exhibit A
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 2 of 15
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $79,629,
notwithstanding any contrary indications that may be contained in Consultant’s proposal, for services to be
performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this
Agreement and Consultant’s proposal, attached as Exhibit B, regarding the amount of compensation, the
Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the
time and in the manner set forth herein. The payments specified below shall be the only payments from
City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to
City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall
not bill City for duplicate services performed by more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant’s estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the Parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. No individual performing work under this Agreement shall
bill more than 2,000 hours in a fiscal year unless approved, in writing, by the City Manager
or his/her designee. Invoices shall contain the following information:
Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
The beginning and ending dates of the billing period;
A Task Summary containing the original contract amount, the amount of prior billings,
the total due this period, the balance available under the Agreement, and the
percentage of completion;
A copy of the applicable time entries or time sheets shall be submitted showing the
following:
o Daily logs of total hours worked by each individual performing work under
this Agreement
o Hours must be logged in increments of tenths of an hour or quarter hour
o If this Agreement covers multiple projects, all hours must also be logged
by project assignment
o A brief description of the work, and each reimbursable expense
The total number of hours of work performed under the Agreement by Consultant and
each employee, agent, and subcontractor of Consultant performing services
hereunder;
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 3 of 15
The Consultant’s signature;
Consultant shall give separate notice to the City when the total number of hours
worked by Consultant and any individual employee, agent, or subcontractor of
Consultant reaches or exceeds 800 hours within a 12-month period under this
Agreement and any other agreement between Consultant and City. Such notice shall
include an estimate of the time necessary to complete work described in Exhibit A and
the estimate of time necessary to complete work under any other agreement between
Consultant and City, if applicable.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for
services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have 30 days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this
Agreement within 60 days after completion of the services and submittal to City of a final
invoice, if all services required have been satisfactorily performed.
2.4 Total Payment.City shall pay for the services to be rendered by Consultant pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
2.5 Hourly Fees.Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto as Exhibit B.
2.6 Reimbursable Expenses.Reimbursable expenses are specified in Exhibit B, and shall
not exceed $1,120. Expenses not listed in Exhibit B are not chargeable to City.
Reimbursable expenses are included in the total amount of compensation provided under
this Agreement that shall not be exceeded.
2.7 Payment of Taxes.Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination.In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 4 of 15
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services.The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT.Except as set forth herein, Consultant shall, at its sole
cost and expense, provide all facilities and equipment that may be necessary to perform the services
required by this Agreement. City shall make available to Consultant only the facilities and equipment listed
in this section, and only under the terms and conditions set forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be
reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and
the information in possession of the City. The location, quantity, and time of furnishing those facilities shall
be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve
incurring any direct expense, including but not limited to computer, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS.Before fully executing this Agreement, Consultant, at its
own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance
listed below against claims for injuries to persons or damages to property that may arise from or in
connection with the performance of the work hereunder by the Consultant and its agents, representatives,
employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of
insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work.
Consultant shall maintain the insurance policies required by this section throughout the term of this
Agreement. The cost of such insurance shall be included in the Consultant's bid or proposal. Consultant
shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all
insurance required herein for the subcontractor(s) and provided evidence to City that such insurance is in
effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF
THIS AGREEMENT PRIOR TO EXECUTION. Consultant shall maintain all required insurance listed
herein for the duration of this Agreement.
4.1 Workers’ Compensation.
4.1.1 General Requirements.Consultant shall, at its sole cost and expense, maintain
Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for
any and all persons employed directly or indirectly by Consultant. The Statutory
Workers’ Compensation Insurance and Employer’s Liability Insurance shall be
provided with limits of not less than $1,000,000 per accident. In the alternative,
Consultant may rely on a self-insurance program to meet these requirements, but
only if the program of self-insurance complies fully with the provisions of the
California Labor Code. Determination of whether a self-insurance program meets
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 5 of 15
the standards of the California Labor Code shall be solely in the discretion of the
Contract Administrator.
The Workers’ Compensation policy shall be endorsed with a waiver of subrogation
in favor of the entity for all work performed by the Consultant, its employees,
agents, and subcontractors.
4.1.2 Submittal Requirements.To comply with Subsection 4.1, Consultant shall
submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section;
and
b. Waiver of Subrogation Endorsement as required by the section.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General Requirements.Consultant, at its own cost and expense, shall maintain
commercial general liability insurance for the term of this Agreement in an amount
not less than $1,000,000 and automobile liability insurance for the term of this
Agreement in an amount not less than $1,000,000 per occurrence, combined
single limit coverage for risks associated with the work contemplated by this
Agreement. If a Commercial General Liability Insurance or an Automobile Liability
form or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required
occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting
therefrom, and damage to property resulting from activities contemplated under
this Agreement, including without limitation, blanket contractual liability and the
use of owned and non-owned automobiles.
4.2.2 Minimum Scope of Coverage.Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (most recent edition) covering comprehensive General Liability on an
“occurrence” basis. Automobile coverage shall be at least as broad as Insurance
Services Office Automobile Liability form CA 0001, Code 1 (any auto). No
endorsement shall be attached limiting the coverage.
4.2.3 Additional Requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis, and not
on a claims-made basis.
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 6 of 15
b. City, its officers, officials, employees, and volunteers are to be covered as
additional insureds as respects: liability arising out of work or operations
performed by or on behalf of the Consultant; or automobiles owned,
leased, hired, or borrowed by the Consultant.
c. Consultant hereby agrees to waive subrogation which any insurer or
contractor may require from vendor by virtue of the payment of any loss.
Consultant agrees to obtain any endorsements that may be necessary to
effect this waiver of subrogation.
d. For any claims related to this Agreement or the work hereunder, the
Consultant’s insurance coverage shall be primary insurance as respects
the City, its officers, officials, employees, and volunteers. Any insurance
or self-insurance maintained by the City, its officers, officials, employees,
or volunteers shall be excess of the Consultant’s insurance and shall not
contribute with it.
4.2.4 Submittal Requirements.To comply with Subsection 4.2, Consultant shall
submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section;
b. Additional Insured Endorsement as required by the section;
c. Waiver of Subrogation Endorsement as required by the section; and
d. Primary Insurance Endorsement as required by the section.
4.3 Professional Liability Insurance.
4.3.1 General Requirements.Consultant, at its own cost and expense, shall maintain
for the period covered by this Agreement professional liability insurance for
licensed professionals performing work pursuant to this Agreement in an amount
not less than $2,000,000 covering the licensed professionals’ errors and
omissions. Any deductible or self-insured retention shall not exceed $150,000 per
claim.
4.3.2 Claims-Made Limitations. The following provisions shall apply if the professional
liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 7 of 15
b. Insurance must be maintained and evidence of insurance must be
provided for at least 3 years after completion of the Agreement or the
work, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another
claims-made policy form with a retroactive date that precedes the date of
this Agreement, Consultant shall purchase an extended period coverage
for a minimum of 3 years after completion of work under this Agreement.
d. A copy of the claim reporting requirements must be submitted to the City
for review prior to the commencement of any work under this Agreement.
4.3.3 Submittal Requirements.To comply with Subsection 4.3, Consultant shall
submit the Certificate of Liability Insurance in the amounts specified in the section.
4.4 All Policies Requirements.
4.4.1 Acceptability of Insurers.All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of Coverage.Prior to beginning any work under this Agreement,
Consultant shall furnish City with complete copies of all Certificates of Liability
Insurance delivered to Consultant by the insurer, including complete copies of all
endorsements attached to the policies. All copies of Certificates of Liability
Insurance and certified endorsements shall show the signature of a person
authorized by that insurer to bind coverage on its behalf. If the City does not
receive the required insurance documents prior to the Consultant beginning work,
it shall not waive the Consultant’s obligation to provide them. The City reserves
the right to require complete copies of all required insurance policies at any time.
4.4.3 Deductibles and Self-Insured Retentions.Consultant shall disclose to and
obtain the written approval of City for the self-insured retentions and deductibles
before beginning any of the services or work called for by any term of this
Agreement. At the option of the City, either: the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects the City, its officers,
employees, and volunteers; or the Consultant shall provide a financial guarantee
satisfactory to the City guaranteeing payment of losses and related investigations,
claim administration and defense expenses.
4.4.4 Wasting Policies.No policy required by this Section 4 shall include a “wasting”
policy limit (i.e. limit that is eroded by the cost of defense).
4.4.5 Endorsement Requirements. Each insurance policy required by Section 4 shall
be endorsed to state that coverage shall not be canceled by either party, except
after 30 days’ prior written notice has been provided to the City.
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 8 of 15
4.4.6 Subcontractors.Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
4.5 Remedies.In addition to any other remedies City may have if Consultant fails to provide
or maintain any insurance policies or policy endorsements to the extent and within the time
herein required, City may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies City may have and are not the exclusive remedy for
Consultant’s breach:
Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder, or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof; and/or
Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES.Refer to the attached
Exhibit C, which is incorporated herein and made a part of this Agreement.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor.At all times during the term of this Agreement, Consultant shall
be an independent contractor and shall not be an employee of City. This Agreement shall
not be construed as an agreement for employment. City shall have the right to control
Consultant only insofar as the results of Consultant's services rendered pursuant to this
Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise
City shall not have the right to control the means by which Consultant accomplishes
services rendered pursuant to this Agreement. Consultant further acknowledges that
Consultant performs Services outside the usual course of the City’s business; and is
customarily engaged in an independently established trade, occupation, or business of the
same nature as the Consultant performs for the City and has the option to perform such
work for other entities. Notwithstanding any other City, state, or federal policy, rule,
regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents,
and subcontractors providing services under this Agreement shall not qualify for or
become entitled to, and hereby agree to waive any and all claims to, any compensation,
benefit, or any incident of employment by City, including but not limited to eligibility to
enroll in the California Public Employees Retirement System (PERS) as an employee of
City and entitlement to any contribution to be paid by City for employer contributions and/or
employee contributions for PERS benefits.
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 9 of 15
6.2 Consultant Not an Agent.Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law.The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws.Consultant and any subcontractors shall comply with
all laws and regulations applicable to the performance of the work hereunder, including but
not limited to, the California Building Code, the Americans with Disabilities Act, and any
copyright, patent or trademark law. Consultant’s failure to comply with any law(s) or
regulation(s) applicable to the performance of the work hereunder shall constitute a breach
of contract.
7.3 Other Governmental Regulations.To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant and any subcontractors
shall comply with all applicable rules and regulations to which City is bound by the terms of
such fiscal assistance program.
7.4 Licenses and Permits.Consultant represents and warrants to City that Consultant and
its employees, agents, and any subcontractors have all licenses, permits, qualifications,
and approvals of whatsoever nature that are legally required to practice their respective
professions. Consultant represents and warrants to City that Consultant and its
employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect
at all times during the term of this Agreement any licenses, permits, and approvals that are
legally required to practice their respective professions. In addition to the foregoing,
Consultant and any subcontractors shall obtain and maintain during the term of this
Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity.Consultant shall not discriminate, on the
basis of a person’s race, sex, gender, religion (including religious dress and grooming
practices), national origin, ancestry, physical or mental disability, medical condition
(including cancer and genetic characteristics), marital status, age, sexual orientation, color,
creed, pregnancy, genetic information, gender identity or expression, political affiliation or
belief, military/veteran status, or any other classification protected by applicable local,
state, or federal laws (each a “Protected Characteristic”), against any employee, applicant
for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or
applicant for any services or programs provided by Consultant under this Agreement.
Consultant shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 10 of 15
8.1 Termination.City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon 30 days’ written notice to City and shall
include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; City, however, may condition payment of
such compensation upon Consultant delivering to City any or all documents, photographs,
computer software, video and audio tapes, and other materials provided to Consultant or
prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension.City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no
obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the
Parties.
8.4 Assignment and Subcontracting.City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a
determination of Consultant’s unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator. Consultant shall not subcontract any portion of the
performance contemplated and provided for herein, other than to the subcontractors noted
in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Consultant shall survive
the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms
of this Agreement, City’s remedies shall include, but are not limited to, the following:
8.6.1 Immediately terminate the Agreement;
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 11 of 15
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 3 years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records.Any records or documents that Subsection 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of
the City. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to
the examination and audit of the State Auditor, at the request of City or as part of any audit
of the City, for a period of 3 years after final payment under the Agreement.
Section 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 12 of 15
that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the Parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of Alameda or in the United States District Court for
the Northern District of California.
10.3 Severability.If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach.The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the Parties.
10.6 Use of Recycled Products.Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
10.7 Conflict of Interest.Consultant may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place
Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Section 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous 12 months,
an employee, agent, appointee, or official of the City. If Consultant was an employee,
agent, appointee, or official of the City in the previous 12 months, Consultant warrants that
it did not participate in any manner in the forming of this Agreement. Consultant
understands that, if this Agreement is made in violation of California Government Code
Section 1090 et seq., the entire Agreement is void and Consultant will not be entitled to
any compensation for services performed pursuant to this Agreement, including
reimbursement of expenses, and Consultant will be required to reimburse the City for any
sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it
may be subject to criminal prosecution for a violation of California Government Code
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 13 of 15
Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the
State of California.
At City’s sole discretion, Consultant may be required to file with the City a Form 700 to
identify and document Consultant’s economic interests, as defined and regulated by the
California Fair Political Practices Commission. If Consultant is required to file a Form 700,
Consultant is hereby advised to contact the Dublin City Clerk for the Form 700 and
directions on how to prepare it.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration.This Agreement shall be administered by the City Manager
("Contract Administrator"). All correspondence shall be directed to or through the Contract
Administrator or his or her designee.
10.10 Notices. Any written notice to the Consultant shall be sent to:
Economic & Planning Systems, Inc.
Attn: Ashleigh Kanat, Principal
1330 Broadway, Suite 450
Oakland, CA 94612
Any written notice to City shall be sent to:
City of Dublin
Attn: Jason Earl
100 Civic Plaza
Dublin, CA 94568
10.11 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibits A, B, and C represents the entire and integrated
agreement between City and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral.
Exhibit A Scope of Services
Exhibit B Compensation Schedule & Reimbursable Expenses
Exhibit C Indemnification
10.12 Counterparts and Electronic Signatures.This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which together shall constitute
one agreement. Counterparts delivered and/or signatures executed by City-approved
electronic or digital means shall have the same force and effect as the use of a manual
signature. Both Parties desire this Agreement to be electronically signed in accordance
with applicable federal and California law. Either Party may revoke its agreement to use
electronic signatures at any time by giving notice to the other Party.
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 14 of 15
10.13 Certification per Iran Contracting Act of 2010.In the event that this contract is for
one million dollars ($1,000,000.00) or more, by Consultant’s signature below Consultant
certifies that Consultant, and any parent entities, subsidiaries, successors or subunits of
Consultant are not identified on a list created pursuant to subdivision (b) of Section 2203 of
the California Public Contract Code as a person engaging in investment activities in Iran as
described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b)
of Section 2202.5 of the California Public Contract Code, as applicable.
SIGNATURES ON FOLLOWING PAGE
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Page 15 of 15
The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear
below certify that they are authorized to sign on behalf of the respective Party.
CITY OF DUBLIN ECONOMIC & PLANNING SYSTEMS, INC.
Linda Smith, City Manager Ashleigh Kanat, Principal
Attest:
Consultant’s DIR Registration Number
(if applicable)
Marsha Moore, City Clerk
Approved as to Form:
City Attorney
3070368.1
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Exhibit A – Page 1 of 3
EXHIBIT A
SCOPE OF SERVICES
EPS recognizes the importance of a balanced and healthy housing sector to sustaining the vitality of a local
economy. As an integral part of its practice, EPS provides a range of services related to housing
development and policy, including the preparation of inclusionary housing and commercial linkage fee
programs.
Mixed-income, or inclusionary, housing ordinances have become a common tool for ensuring a diverse
housing supply within a given community. EPS works with jurisdictions to develop and retool their programs
to meet changing markets and performs the calculations and analysis to establish fees in lieu of building
homes on site. In addition, EPS has developed numerous fee programs, based on a “nexus” analysis to
support affordable housing by assessing the impact of new, nonresidential construction on growth in
demand for new affordable housing. While a new (or updated) commercial linkage fee requires the
preparation of a nexus study, a new or updated inclusionary housing program and associated in-lieu fees
do not.
EPS Work Program
The following section describes the work program proposed by EPS to support the City in studying and
updating inclusionary housing and commercial/housing linkage fee programs.
Task 1 - Project Initiation and Ongoing Project Management
EPS will participate in a project initiation kick-off meeting via phone or videoconference with City staff to
discuss the Project, how the current programs are serving (or not serving) the needs of the City, and the
specific objectives. EPS will use this opportunity to identify and request existing data, documents, and other
pertinent information that City staff can provide. In addition, EPS will seek any recommendations that the
City can provide regarding stakeholders with whom EPS should communicate. EPS will schedule a
recurring check-in meeting with staff on a regular basis to facilitate communication.
Task 2 – Survey of Fees in Peer Jurisdictions
EPS will conduct a survey of up to five other jurisdictions in the Tri-Valley area that Dublin considers to be
“peer” cities, plus a sixth Bay Area peer city, that have affordable housing inclusionary requirements, in-lieu
fees on residential development, and commercial linkage fees. As a deliverable, EPS will produce a
summary matrix that can be incorporated into final documents and presentations.
Task 3 – Developer/Stakeholder Outreach
As described in Task 1, EPS will work with City staff to identify stakeholders with whom to engage to
identify potential issues of concern or priority with regard to updates to the inclusionary housing program
and commercial/housing linkage fee. Such groups might include members from the local business
community, commercial and residential developers that are active in the region, the Chamber of
Commerce, and housing advocacy groups, with an interest in the Inclusionary Housing and
commercial/housing linkage fee programs.
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Exhibit A – Page 2 of 3
EPS will conduct targeted one-on-one phone or videoconference outreach to selected stakeholders who
are likely to have specific technical information that can define or validate various assumptions related to
market and economic conditions necessary for the analyses in Tasks 4 and 5. EPS finds that these
individualized meetings are the preferred setting for stakeholders to share this type of information.
Task 4 – Inclusionary Zoning and In-Lieu Fee Feasibility Study
Subtask 4.1: Housing Prototypes and Inclusionary Scenarios
Drawing on feedback provided at the project initiation meeting and preliminary research on local
development conditions, EPS will develop a set of up to four (4) ownership and rental housing prototypes
for feasibility analysis that will be vetted with City staff. Additionally, EPS will suggest a range of
inclusionary requirement alternatives for feasibility testing, including the City’s current requirements. The
other requirements will be informed by EPS’s experience developing inclusionary programs in other
jurisdictions in California, as well as the survey of inclusionary programs in peer cities.
Subtask 4.2: Inclusionary Zoning Economic Feasibility Analysis
EPS will research the local housing market prices and development costs by housing prototype, recent
construction and pipeline projects, land pricing, required developer profit, and other trends reflecting
housing and real estate inputs. This research will reflect the targeted outreach to local developers identified
at the project initiation meeting in order to vet these inputs.
EPS will assemble a set of “static” pro forma financial models representing the identified housing
prototypes, and use these models to assess the development feasibility of these prototypes under the
identified inclusionary policy alternatives. The resulting profitability for each prototype under each
inclusionary alternative will be compared to each other as well as to a minimum market profitability metric
established through research and stakeholder input.
Subtask 4.3: In-Lieu Fee Calculation
As part of the pro forma analysis, EPS will calculate an in-lieu fee reflecting each inclusionary alternative,
demonstrating the fee level that is equivalent to the cost to the developer of providing the inclusionary units
onsite.
Task 4 Deliverables: EPS will produce a Draft Inclusionary Zoning and In-Lieu Feasibility Analysis Report
for review and comment by City staff. The Report will include an executive summary containing key
findings; description of the technical analysis; recommendations for an inclusionary housing program;
summary of research on inclusionary programs and in-lieu fees in comparable jurisdictions; and all
associated tables and calculations. EPS will accept one round of comments from City staff and will
incorporate these comments into a Final Report.
Task 5 – Commercial Linkage Fee Nexus Study
EPS will calculate updated affordable housing fees for commercial development through the preparation of
a commercial linkage fee nexus analysis. The nexus (i.e., linkage) between new nonresidential
development and the demand for affordable housing is derived by preparing employment density and
compensation estimates of future employees for several nonresidential land use types (e.g., retail, office,
industrial, lodging, etc.). New household formation resulting from new employment will be categorized by
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Exhibit A – Page 3 of 3
income category (e.g., very low, low, moderate, above-moderate) to estimate total housing demand. These
calculations include consideration of local trends in household formation (e.g., average number of workers
per household). The demand by land use category will be converted into a fee, on a per-building-square-
foot basis, based on the affordability gap with regard to very low, low, and moderate-income household
earnings and the typical cost of housing in Dublin.
In comparable recent projects, the maximum nexus-supported fee generated by the industry-standard
analysis has been significantly higher than jurisdictions have wished to implement. Findings from the fee
survey (Task 2) can be considered along with the City’s economic and community development objectives
to determine an appropriate fee level.
Task 5 Deliverables: EPS will produce a Draft Commercial Linkage Fee Nexus Study for review and
comment by City staff. The Report will include an executive summary containing key findings; description of
the technical analysis; recommendations for updated linkage fees; summary of research on linkage fee
programs and fees in comparable jurisdictions; and all associated tables and calculations. EPS will accept
one round of comments from City staff and will incorporate these comments into a Final Report.
Task 6 – Public Presentations
EPS will participate in one (1) Planning Commission Meeting and two (2) City Council Meetings. The
Planning Commission Meeting and the first City Council Meeting will be used to present the preliminary
findings of the Inclusionary Zoning and In-Lieu Fee Feasibility Study and the Commercial Linkage Fee
Study, answer any questions from City officials, and receive direction on key policy and implementation
considerations. EPS recommends that these meetings be structured as study sessions to allow for more
informal discussion. The second City Council meeting may be the adoption hearing.
The EPS budget assumes that these meetings will take place in person. Virtual attendance would result in
cost savings. Should it be determined that additional public presentations are needed, they can be
accommodated through a scope and budget amendment. Please note that we will work to roll out these two
studies along the same timeline so that both go to the Planning Commission and City Council at the same
time. Occasionally, one study is able to move ahead more quickly than the other. Should this circumstance
arise, EPS will coordinate with City staff for the best possible outcome.
Schedule
EPS is available to begin work on this study immediately upon authorization to proceed and is prepared to
complete the scoped work within approximately six (6) months of engagement, as outlined in the City’s
RFP and shown in Table 1. This schedule assumes that the required input and data from City staff is
provided in a timely manner. This schedule targets a City Council adoption hearing in October, with study
session-style presentations to the Planning Commission and City Council in August and September,
respectively. EPS anticipates finalizing a detailed project schedule upon project initiation.
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Exhibit B – Page 1 of 1
EXHIBIT B
COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES
Principal and Deputy Project Project Research Staff Direct Costs/ Grand
Project Manager Manager Advisor Analyst Subtotal Reimbursables [2] Total
Tasks Kanat Ren Smith
Hourly Billing Rates [1] $300 $195 $325 $170
Task 1: Project Initiation and
Ongoing Project Management [3]12 15 0 0 $6,525 $0 $6,525
Task 2: Survey of Fees in Peer
Jurisdictions 2 7 0 12 $4,005 $0 $4,005
Task 3: Developer/Stakeholder
Outreach 8 12 0 2 $5,080 $0 $5,080
Task 4: Inclusionary Zoning and In-
Lieu Fee Feasibility Study 25 50 4 20 $21,950 $500 $22,450
Task 5: Commercial Linkage Fee
Nexus Study 25 50 4 20 $21,950 $500 $22,450
Task 6: Public Presentations [4] 18 30 0 3 $11,760 $120 $11,880
Total Project Budget 90 164 8 57 $71,270 $1,120 $72,390
10% Contingency $7,239
Total Budget with 10% Contingency $79,629
TOTAL PROJECT COSTS $72,390
[1] Hourly billing rates are effective for 2023 and subject to annual revision.
[2] Direct costs/reimbursables include data acquisition and staff travel.
[3] Task includes one (1) virtual kick-off meeting with staff, and approximately biweekly project management meetings with the client team for duration of Study.
[4] Public presentations include one (1) Planning Commission meeting and two (2) City Council meetings.
Consulting Services Agreement between City of Dublin and EPS 04/18/2023
For Inclusionary Zoning and In-Lieu Fee Feasibility Study and
Commercial Linkage Fee Nexus Study Exhibit C – Page 1 of 1
EXHIBIT C
INDEMNIFICATION
Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers,
elected officials, employees, agents and volunteers from and against any and all liability, loss, damage,
claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation)
(collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the
services called for or its failure to comply with any of its obligations contained in this Agreement, except
such Liability caused by the sole negligence or willful misconduct of City.
Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by
California Civil Code Section 2782, as may be amended from time to time, such duties of Consultant to
indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
The Consultant’s obligation to defend and indemnify shall not be excused because of the Consultant’s
inability to evaluate Liability or because the Consultant evaluates Liability and determines that the
Consultant is not liable to the claimant. The Consultant must respond within 30 days to the tender of any
claim for defense and indemnity by the City. If the Consultant fails to accept or reject a tender of defense
and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due
the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the
City, may be retained by the City until disposition has been made of the claim or suit for damages, or until
the Consultant accepts or rejects the tender of defense, whichever occurs first.
3070368.1