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DATE:
TO:
STAFF REPORT CITY CLERK
CITY COUNCIL File # 600-30
September 20, 2011
Honorable Mayor and City Councilmembers
FROM: Joni Pattillo, City Manager &4_� ;a"
SUBJECT: Consulting Services Agreement with Pakpour Consulting Group, Inc., for
Construction Administration and Inspection Services
Prepared by Steven Yee, Public Works Manager
EXECUTIVE SUMMARY:
The City Council will consider a Consulting Services Agreement with Pakpour Consulting Group,
Inc., for Construction Administration and Inspection Services for FY 2012 street resurfacing
programs as identified in the 2010-2015 Capital Improvement Program.
FINANCIAL IMPACT:
Under this Agreement, Pakpour Consulting Group, Inc. will provide construction administration
and inspection services through December 31, 2012. Actual time spent on projects will be
funded by individual Capital Improvement Program (CIP) projects, for which construction
administration and/or inspection time is budgeted.
RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution approving the Consulting Services
Agreement with Pakpour Consulting Group, Inc., for Construction Administration and Inspection
Services.
Submitted By —
Director of Public Works
X L___r
X_
Reviewed By
Assistant City Manager
Page 1 of 2 -ITEM NO. 4.5 `
CJ
DESCRIPTION:
The Fiscal Year 2011-2012 Capital Improvement Program (CIP) Budget identifies funds
available for construction administration and inspection services as part of the Annual Street
Overlay and Annual Slurry Seal Programs. On August 26, 2011, Staff released a Request for
Proposals for general civil construction administration and inspection services with emphasis on
street resurfacing projects.
On September 2, 2011, proposals were received from two firms: Pakpour Consulting Group,
Inc. and Harris & Associates. Upon review of the proposals and related experience with street
resurfacing projects, Pakpour Consulting Group, Inc., was selected by Staff to provide
construction administration and inspection services for upcoming slurry seal and street overlay
programs. The proposed contract has snot-to-exceed amount of $95,000.
The term of this Agreement is proposed to run through December 31, 2012. Staff will return to
the City Council if the not-to-exceed amount specified in this Agreement needs to be amended
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS: 1. Resolution Approving the Consulting Services
Agreement with Pakpour Consulting Group, Inc., for
Construction Administration and Inspection Services,
including Exhibit A -Agreement.
Page 2 of 2
RESOLUTION NO. XX - 11
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING CONSULTING SERVICES AGREEMENT WITH PAKPOUR CONSULTING
GROUP, INC., FOR CONSTRUCTION ADMINISTRATION AND INSPECTION SERVICES
WHEREAS, the need has been determined to hire a general civil engineering
construction consultant to provide construction administration and inspection services in order
to supplement the City's existing Public Works Staff; and
WHEREAS, said services are for construction administration and inspection associated
with current street resurfacing programs as identified in the Capital Improvement Program; and
WHEREAS, the firm of Pakpour Consulting Group, Inc., has demonstrated professional
qualifications and the ability to perform the technical work required; and
WHEREAS, it is proposed to enter into a Consulting Services Agreement with Pakpour
Consulting Group, Inc., for the required work; and
WHEREAS, under said Agreement, the consultant shall be compensated for work
performed according to the hourly rates specified in the agreement or as negotiated for the term
of the agreement through December 31, 2012, not to exceed a total amount of $95,000;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the Consulting Services Agreement with Pakpour Consulting Group, Inc.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Agreement, attached hereto as Exhibit "A."
PASSED, APPROVED AND ADOPTED this 20th day of September, 2011, by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
Reso No. XX-11, Adopted XX/XX/XX, item x.x Page 1 Of 1 ATTACHMENT 1
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
PAKPOUR CONSULTING GROUP, INC.
THIS AGREEMENT for consulting services is made by and between the City of Dublin ("City") and
Pakpour Consulting Group, Inc. ("Consultant") (together sometimes referred to as the "Parties") as of
September 21, 2011 (the "Effective Date").
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant
shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and
place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms
of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall
end on December 31, 2012, 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.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons,
Consultant shall, immediately upon receiving notice from City of such desire of City,
reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in 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 $95,000,
notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be
performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this
Agreement and Consultant's proposal, attached as Exhibit 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 in writing, Consultant shall
not bill City for duplicate services performed by more than one person.
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Exhibit A to Resolution
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. Invoices shall contain the following information:
^ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice,
etc.;
^ The beginning and ending dates of the billing period;
^ A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement, and
the percentage of completion;
^ At City's option, for each work item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person doing
the work, the hours spent by each person, a brief description of the work, and
each reimbursable expense;
^ The total number of hours of work performed under the Agreement by Consultant
and each employee, agent, and subcontractor of Consultant performing services
hereunder;
^ 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.
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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 as shown on Exhibit B.
Expenses not listed are not chargeable to City. Reimbursable expenses are included in
the total amount of compensation provided under this Agreement that shall not be
exceeded.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed
as of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
2.10 Rate Adjustments. Consultant will be entitled to an annual rate adjustment upon each
annual anniversary of this Agreement, the amount of said increase to be approved by the
City. The base for computing the adjustment shall be the Consumer Price Index for Urban
Wage Earners for the San Francisco-Oakland Bay Area published by the U.S. Department
of Labor, Bureau of Labor Statistics (Index) which is published for the year ending in
February. If the Index has increased over the Index for the prior year, the rates for the
following year shall be established by multiplying the rates for the current year by a
fraction, the numerator of which is the Renewal Index and the denominator of which is the
Index for the preceding year. In no case shall the adjusted rates be less than the initial
rates as set forth in Exhibit B. A sample calculation is set forth below. The Public Works
Director shall calculate the adjusted rate on each anniversary date of this agreement and
shall provide notice to Consultant of such new rates.
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SAMPLE CALCULATION: (Using 1% index increase as an example)
HOURLY CHARGE RATE $150.00/hr
INDEX INCREASE (Assuming 1 %) 150 x .01 = 1.50 1.50/hr
$151.50/hr
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, 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 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 that such insurance is in effect to City.
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. 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 aself-
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.
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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 $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 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:
The Insurance shall cover on an occurrence or an accident basis, and not
on a claims-made basis.
City, its officers, officials, employees, and volunteers are to be covered as
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. For any claims related to this Agreement or the work hereunder, the
Consultant's insurance covered shall be primary insurance as respects
the City, its officers, officials, employees, and volunteers. Any insurance
orself-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.
d. Each insurance policy required by this clause 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.
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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 $1,000,000 covering the licensed professionals' errors and
omissions. Any deductible orself-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:
The retroactive date of the policy must be shown and must be before the
date of the Agreement.
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 shall purchase an extended period coverage
for a minimum of five years after completion of work under this
Agreement.
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 Additional Requirements. A certified endorsement to include contractual liability
shall be included in the policy
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 policies delivered to
Consultant by the insurer, including complete copies of all endorsements attached
to those policies. All copies of policies 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
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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 orself-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 Waiver of Subrogation. 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
affect this waiver of subrogation.
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.
4.4.6 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.
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Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall, to the
fullest extent allowed bylaw, with respect to all Services performed in connection with this Agreement,
defend with counsel acceptable to City, indemnify, and hold City, its officers, employees, agents, and
volunteers, harmless from and against any and all claims that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the Consultant, ("Claims"). Consultant will bear all
losses, costs, damages, expense and liability of every kind, nature and description that arise out of, pertain
to, or relate to such Claims, whether directly or indirectly ("Liability"). Such obligations to defend, hold
harmless and indemnify the City shall not apply to the extent that such Liabilities are caused by the sole
negligence, active negligence, or willful misconduct of the City.
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any
type of express or implied indemnity against the Indemnitees.
Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by
California Civil Code section 2783, 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.
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 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,
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so
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, religion, color, national origin, age, physical or mental handicap
or disability, medical condition, marital status, sex, or sexual orientation, against any
employee, applicant for employment, subcontractor, bidder for a subcontract, or
participant in, recipient of, or applicant for any services or programs provided by
Consultant under this Agreement. Consultant shall comply with all applicable federal,
state, and local laws, policies, rules, and requirements related to equal opportunity and
nondiscrimination in employment, contracting, and the provision of any services that are
the subject of this Agreement, including but not limited to the satisfaction of any positive
obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement upon thirty (30) days' written notice to City and
shall include in such notice the reasons for cancellation.
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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 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
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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.
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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 bylaw, 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 $10,000.00, the Agreement shall be subject to
the examination and audit of the State Auditor, at the request of City or as part of any
audit of the City, for a period of 3 years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to which
that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County 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
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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 Assiqns. 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 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.
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 Steven Yee, Public
Works Manager ("Contract Administrator"). All correspondence shall be directed to or
through the Contract Administrator or his or her designee.
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10.10 Notices. Any written notice to Consultant shall be sent to:
Pakpour Consulting Group, Inc.
Joubin Pakpour, Principal Engineer
5776 Stoneridge Mall Road, Suite 320
Pleasanton, CA 94588
Any written notice to City shall be sent to:
Gary Huisingh, Public Works Director
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 reporUdesign preparation. The stamp/seal shall be in a block entitled
"Seal and Signature of Registered Professional with repod/design responsibility," as in the
following example.
Seal and Signature of Registered Professional with repoNdesign responsibility.
10.12 Integration. This Agreement, including scope of work attached hereto and incorporated
herein as Exhibits A and B 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 Payment Schedule
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10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be an original and all of which together shall constitute one agreement.
The Parties have executed this Agreement as of the Effective Date.
CITY OF DUBLIN
Joni Pattillo, City Manager
PAKPOUR CONSULTING GROUP, INC.
Joubin Pakpour, Principal Engineer
Attest:
Caroline Soto, City Clerk
Approved as to Form:
John Bakker, City Attorney
a~zssz_s
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EXHIBIT A
SCOPE OF SERVICES
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EXHIBIT B
COMPENSATION SCHEDULE
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