HomeMy WebLinkAbout07-13-1999 Agenda Item 2 (E)~~
SARATOGA CITY COUNCIL
EXECUTIVE SUMMARY NO: ~' ~ Z' AGENDA ITEM:
MEETING DATE: July 13,1999 CITY MANAGER:
ORIGINATING DEPT: Community Development DEPT HEADY
SUBJECT: Awarding of contract to Fehr & Peers Associates, traffic consultants, to update
the City's Circulation and Scenic Highway Element of the General Plan. A Scope of Work is
attached to the Contractual Services Agreement.
RECOMMENDED MOTION:
Approve a Contractual Services Agreement with Fehr & Peers Associates in the amount of
$58,480 to update the City's Circulation and Scenic Highway Element of the General Plan.
REPORT SUMMARY:
Staff received several good proposals in response to the RFP's mailed out previously to update the
City's Circulation and Scenic Highway Element of the General Plan. Three firms were selected for
final interviews held on Thursday, June 3, 1999 in the Community Development Department. Each
consultant team was asked to spend approximately 20 minutes presenting their proposal to the
selection committee. The committee then followed up with questions and concluded with a
summary rating of the firm's overall proposal and presentation. The selection committee was
comprised of Councihnember Nick Streit, Planning Commission Chair Mary-Lynne Bernald,
Public Safety Commission Chair Frank Lemmon, the City's Traffic Consultant Jim Jeffrey and the
Town of Los Gatos' Community Development Director Paul Curtis. Community Development
Director James Walgren coordinated the interviews and participated on the selection committee.
The selection committee concluded with a unanimous recommendation to award the contract to the
San Jose firm, Fehr & Peers Associates. The committee found all three firms to be technically
quite competent, but felt that Fehr & Peers, in association with Moore Iacofano Goltsman,
would conduct the most vigorous public participation program. MIG specializes in community
coordination and participation programs.
The original RFP and entire text of Fehr and Peers' proposal are available in the Community
Development Department offices for review.
FISCAL IMPACTS:
The amount of the contract to perform the specified scope of services is $58,480. The $50,000
budgeted for this project in the FY 1998/99 budget will be carried forward to the FY 1999/00
budget to fund this project. The $3,530 needed to augment the Circulation Element with updated
City-wide traffic counts will be funded through the General Engineering budget. The $4,950
balance will come from the $50,000 in the FY 1999/00 budget for the following Housing Element
update project.
ADVERTISING, NOTICING AND PUBLIC CONTACT:
None.
CONSEQUENCES OF NOT ACTING ON RECOMMENDED MOTION:
The contract would not be awarded and the Circulation Element update would not proceed.
FOLLOW UP ACTIONS:
1. Execute Contractual Services Agreement
2. Process budget amendment (to be done in August)
3. Proceed with Circulation and Scenic Highway Element update
ATTACHMENTS:
1. Contractual Services Agreement
2
C
CONTRACTUAL SERVICES AGREEMEL~TT
THIS AGREEMENT is made at ,California,
as of ~ ~3 , 19~~] by and between the CITY OF Q "p ,
a municipal corporation ("City"), `and ~ , ("JC~ontractor"), whio- agree as
follows: " "~f ~ ~'~~ ~ r /~~'l~J ~ (M~+
1. SERVICES. Subject to the terms and conditions set forth in this
Agreement, Contractor shall provide to City the services described in Exhibit A.
Contractor shall provide said services at the time, place and in the manner specified
in Exhibit A.
2. PAYMENT. City shall pay Contractor for services rendered
pursuant to this Agreement at the time and in the manner set forth in Exhibit B. The
payments specified in Exhibit B shall be the only payments to be made to Contractor
for services rendered pursuant to this Agreement. Contractor shall submit all billings
for said services to City in the manner specified in Exhibit B; or, if no manner be
specified in Exhibit B, then according to the usual and customary procedures and
practices which Contractor uses for billing clients similar to City.
Standard Contractual Services Agreement Page 1 of 3
6/1/99
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3. FACILITIES AND EQUIPMENT. Except as set forth in
Exhibit C, Contractor shall, at its sole cost and expense, furnish all facilities and
equipment which may be required for furnishing services pursuant to this Agreement.
City shall furnish to Contractor only the facilities and equipment listed in Exhibit C
according to the terms and conditions set forth in Exhibit C.
4. GENERAL PROVISIONS. The general provisions set forth in
Exhibit D are part of this Agreement. In the event of any inconsistency between said
general provisions and any other terms or conditions of this Agreement, the other
term or condition shall control insofar as it is inconsistent with the general provisions.
5. EXHIBITS. All exhibits referred to herein are attached hereto
and are by this reference incorporated herein.
6. CONTRACT ADMINISTRATION. This Agreement shall be
administered by ~ VVI v-iT ~i~("Administrator"). All
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correspondence shall be directed to r roug~ th~e~ d inistrator or his or her
designee.
7. NOTICES. Any written notice to Contractor shall be sent to:
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M~v3 Gw~cal~ ~v~c . , ~~`~ ~,
Standard Contractual Services reemeny~~ _ ~~~ ~~ Page 2 of 3
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Executed as of the day first above stated:
CITY OF tN ~ r , a
municipal corporation
By
Any written notice to City shall be sent to:
Attest:
City Clerlc
City Manager
By
"Contractor"
Approved as to form:
City Attorney
Approved as to budget authority:
Finance Director
Standard Contractual Services Agreement
Page 3 of 3
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EXHIBIT A
TERM OF AGREEMENT AND SCOPE OF SERVICES
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The term of this A eemen shall b~'for da s rC~the~ate of execution,
$~' ~ Y
unless it is extended by written mutual agreement between the parties,
provided that the parties retain the right to terminate this Agreement as
provided in Exhibit D at all times.
2. Consultant shall provide services including but not limited to:
J:\WPD\ATTYU'CW\9USDEV\EXHIBITA.W 61
SCOPE OF WORK
The tasks to be conducted as part of the Circulation and Scenic Highway Element Update
are described below:
1. Project Initiation
The purpose of the Project Initiation task is to refine the scope of work, to collect all
available documents and data, and to set the study schedule. The consultant team will
conduct this task via a meeting with City staff. During this meeting, the project team will
obtain relevant documents (e.g., Trails Master Plan and Bicycle Plan) and data (traffic
counts, base maps, accident data, etc.) that will be helpful in the Circulation and Scenic
Highway Element Update study. The project schedule, including report submittal dates
and dates for the public workshops and public hearings, will be identified at this meeting.
2. Kick-Off Community Workshop
The purpose of the first Community Workshop is to present the study objectives and to
solicit input on the City's transportation goals and policies.
City of Saratoga staff will identify an appropriate location for the meeting and will make
all arrangements (reserving the room, notifying the public, etc.). MIG will present
existing goals and policies and use an interactive approach to determine which still match
the community's vision and to identify new goals and policies that further support this
vision. Fehr & Peers staff will participate in the presentation and will be available to
answer questions.
The format of the meeting will depend on the attendance level (large group with a
facilitator and a separate recorder or small breakout groups, each lead by one person
doing both facilitation and recording). MIG will prepare informational handout materials
(transportation system maps, goal and policy statements, planning terminology
definitions, etc.) to be distributed to each participant to help develop community
members' understanding of the issues and choices involved in the study. Participants will
also be provided with comment sheets on which to write down their concerns, ideas and
suggestions.
At the conclusion of the workshop, MIG will prepare a summary report of the comments
and public input.
3. Existing Conditions Report
Fehr & Peers Associates will prepare an Existing Conditions Report that describes the
current transportation system serving the city, evaluate its operations, and describes any
planned improvements. Existing traffic count data, to be provided by the City, will be
used to evaluate intersection and roadway segment levels of service. Based on a review
of available data, new traffic counts will have to be conducted at seven (7) intersections
(AM and PM peak hours) and 11 roadway segments. Locations of congestion and other
deficiencies will be identified. Regional plans and policies that affect Saratoga, such as
the Santa Clara County Congestion Management Program, will 'also be included. The
report will make generous use of maps and graphics to describe the roadway system,
traffic control devices, bus service, bicycle facilities, pedestrian facilities, and locations
of congestion.
4. Future Conditions
Future conditions represent conditions with buildout of the city according to the current
land use designations, including anticipated redevelopment. Traffic volumes for Future
Conditions will be projected by incorporating Center for Urban Analysis (CUA) model
projections and traffic estimates for approved and pending developments. Fehr & Peers
Associates will obtain traffic projections for Saratoga from the CUA's model and will use
these projections as a gauge of traffic increases due to regional growth. City staff will
provide descriptive information (location, land use, and size} for all approved, pending,
and anticipated redevelopment projects. We will project traffic for these development
projects with a Traffix model, or similar method.
This scope includes obtaining two model runs from the CUA, 2020 land use (ABAG
projections) with the programmed transportation system (existing roadways and transit
plus funded improvements) and 2020 land use with the programmed transportation
system plus a new interchange on SR 85. Caltrans typically requires 20-year projections
for purposes of analyzing freeway operations.
Intersection and roadway segment levels of service (at up to 15 intersections and up to 15
roadway segments) will be evaluated to identify future locations of congestion. The
results will be presented in a report and used to identify recommended improvements and
transportation policies.
5. Interim Community Workshop
Topics that require additional public input may be identified during the Kick-Off
Community Workshop. Two smaller workshops will be held to examine these topics in
greater detail. City staff will make the arrangements for these workshops (reserve
meeting rooms and notify the public). MIG will facilitate the workshops using small
breakout groups. MIG will prepare short summary reports of the workshop results.
6. Administrative Draft Element Update
The results of the previous tasks and input received from the public will be summarized
into the Administrative Draft Element Update. The report will include:
Goals, Policies, Implementation Measures -MIG will identify the Goals and Policies
from the first public workshop. Fehr & Peers will then identify implementation measures
or performance criteria to achieve them.
Roadway Functional Classifications and "Traffic Calming" -Fehr & Peers will develop
criteria to classify streets as arterials, collectors, neighborhood collectors, local streets,
hillside streets, and Heritage lanes in Saratoga. We will also present criteria for the
implementation of traffic calming techniques.
CMP Requirements/Level of Service Standards - The Santa Clara Congestion
Management Program (CMP) facilities in Saratoga are SR 9, SR 17, SR 85, Saratoga
Avenue, and Saratoga-Sunnyvale Road and the designated CMP intersection is Big Basin
Way/Saratoga-Los Gatos Road. The CMP requirements that are applicable to Saratoga
will be summarized. These are: the annual monitoring of the CMP facilities that the city
is responsible for (intersection of Big Basin Way and Saratoga-Los Gatos Road), insuring
that TIAs (following the guidelines) are prepared for all proposed developments
generating greater than 100 peak-hour trips, preparing deficiency plans for CMP facilities
under Saratoga's jurisdiction that exceed their LOS Standard, and insuring that any city
traffic model is compatible to the countywide model. During this task, we will coordinate
with City staff to determine if a Citywide LOS policy should be included in the
Circulation Element.
Public Transit -The Santa Clara Valley Transportation Authority (VTA) provides transit
service (bus and light rail transit) in Santa Clara County. Expansion of other transit
services (VTA's Outreach program and shuttle programs) will be addressed, with
particular attention to school trips.
Bicvcle and Pedestrian Facility Plan, "Safe Route to School "Plans -Logical extensions
of bicycle lanes and bicycle trails will be incorporated into acity-wide bicycle facility
map. Guidelines for Safe Route to School plans developed by Fehr & Peers for Palo Alto
and Redding will be adapted for use in Saratoga.
Roadway Design Analysis -The roadways on the City's hillsides are narrow. Widening to
standard street widths or to accommodate parking would require extensive cut and fill
and would cause environmental impacts. Goals and policies will be developed taking
these items into consideration. Safety will be emphasized. Existing traffic volumes will
be compared to the capacities of the major roadways in Saratoga to determine their
adequacy. The results will be used to make modifications to the official plan lines.
Scenic Roadway Analysis -The Scenic Highway Program has certain requirements to
protect scenic corridors: (1) regulation of land use and density of developments, (2)
detailed land and site planning, (3) control of outdoor advertising, (4) attention and
control of earth moving and landscaping, and (5) attention to design and appearance of
structures and equipment. These requirements will be incorporated into the goals and
policies, as appropriate.
Report Preparation -The goals, policies, and implementation measures and the results of
the technical analyses will be presented in an administrative draft report for staff to
review. The report will be prepared so that it can be formatted for inclusion as the
Circulation Element of the General Plan.
7. Administrative Draft Element Update ReviewlInitial Study
The report will be submitted to City staff for their review and so that they may conduct
the environmental Initial Study. Staff comments will be incorporated into the Draft
Element Update. The decision on the type of required CEQA document (Negative
Declaration, Mitigated Negative Declaration, or Environmental Impact Report) will be
made by City staff at the conclusion of the Initial Study. If an EIR is required, David J.
Powers & Associates will prepare a Scope of Work and Fee Estimate.
8. Draft Element Update and CEQA Document Preparation
The Draft Element Update will be presented to City Councilmembers, Planning and
Public Safety Commissioners, and Saratoga residents and business owners at public
hearings. David J. Powers & Associates will commence work on the EIR (if required).
The EIR results will be presented at a public hearing. Comments from the public will be
obtained at that time. The Fehr & Peers Associates Project Manager will attend three
public hearings at this stage of the study. We expect to make presentations to the Public
Safety Committee, the Planning Commission and the City Council.
9. Final Element Update and CEQA Document
Comments of the Draft Element Update and on the Draft EIR (if needed) will be
incorporated into the final versions of those report. The Final Element Update and CEQA
document will be presented at a public hearing. The Fehr & Peers Project Manager will
attend one public hearing regarding the Final Element Update.
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EXHIBIT B
PAYMENT SCHEDULE
City may pay Contractor an amount not to exceed the total sum of
oa
$ -~ for services to be performed and reimbursable
costs incurred pursuant to the following provisions.
1. INVOICES. Contractor 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.
a. Serial identification of progress bills, i.e., Progress Bill No. 1;
b. The beginning and ending dates of the billing period;
c. A Taslc Summary containing the original contract amount, the amount
of prior billings, the total due this period, the balance available and the
percentage of completion; and
d. For each work item in each task, a copy of the applicable 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.
2. MONTHLY PAYMENTS. City shall make monthly payments, based on such
invoices, for services satisfactorily performed, and for authorized reimbursable
casts incurred.
3. FINAL PAYMENT. City shall pay the last 10% of the total sum due pursuant
to this Agreement within forty-five (45) days after completion of the services
and submittal to City, if all services due pursuant to this Agreement have been
satisfactorily performed.
4. TOTAL PAYMENT. The total sum stated above shall be the total which City
shall pay for the services to be rendered by Contractor pursuant to this
EXHIBIT "B" PAGE 1
J:~WI'DV~TTYV'C~MBUSDEV~EXH IB ITB.W 6I
Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Contractor in rendering services pursuant to this Agreement. City shall
make no payment for any extra, further or additional service pursuant to this
Agreement unless such extra service and the price therefor is agreed to in writing
executed by the City Manager or other designated official of City authorized to
obligate City thereto prior to the time such extra service is rendered and in no event
shall such change order exceed twenty-five (25%) of the initial contract price.
5. HOURLY FEES. Fees for work performed by Contractor on an hourly basis
not to exceed the amounts shown on the fee schedule of hourly billing included
as Exhibit B-2.
6.
'nt B- , a shall of ceed
not li on Exhi it B-2 are chargea le o City.
on
7. PAYMENT OF TAXES. Contractor is solely responsible for the payment of
his or her own employment taxes, workers' compensation and any similar
federal or state taxes.
8. PAYMENT UPON TERMINATION. In the event that the City terminates
this Agreement pursuant to Exhibit D, the City shall compensate the
Contractor for all outstanding costs incurred for work satisfactorily completed
as of the date of written notice thereof. Contractor shall maintain adequate
logs and timesheets in order to verify costs incurred to date.
9. AUTHORIZATION TO PERFORM SERVICES. The Contractor is not
authorized to perform any services or incur any costs whatsoever under the
terms of this Agreement until receipt of a fully executed Purchase Order from
the City's Finance Department.
EXHIBIT "B" PAGE 2
f :\W PDWTTYV'CW~BUSDEV\BXFi IBITB.W 61
,. ,
SCHEDULE OF HOURLY RATES
FEHR & PEERS ASSOCIATES, INC.
Classification Hourly Rates
Senior Principal $150.00 - $160.00
Principal $130.00 - $145.00
Senior Associate $120.00 - $140.00
Associate $105.00 - $120.00
Senior Engineer/Planner $80.00 - $105.00
Engineer/Planner $65.00 - $80.00
Senior Technical Support $60.00 - $70.00
Administrative Support $40.00 - $65.00
Technician $50.00
Intern $35.00
Controller $90.00
MOORE IACOFANO GOLTSMAN, INC.
~z
Principal $150.00
Project Manager $100.00
Project Associate $75.00
EXHIBIT C
City shall furnish physical facilities such as desks, filing cabinets, and
conference space, as may be reasonably necessary for Contractor's use while
consulting with City employees and reviewing records and the information in
possession of City. The location, quantity, and time of furnishing said physical
facilities shall be in the sole discretion of City. In no event shall City be obligated to
furnish any facility which may involve incurring any direct expense, including, but
not limiting the generality of this exclusion, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
Exhibit C Page 1 of 1
J:~WPD~gTT11PCW~BUSDEV~EXH IB ITC. W 61
EXHIBIT D
GENERAL PROVISIONS
1. INDEPENDENT CONTRACTOR. At all times during the term of this
Agreement, Contractor shall be an independent contractor and shall not be an
employee of City. City shall have the right to control Contractor only insofar as the
results of Contractor's services rendered pursuant to this Agreement; however, City
shall not have the right to control the means by which Contractor accomplishes
services rendered pursuant to this Agreement.
2. i.ICENSES• PERMITS: ETC. Contractor represents and warrants to City that
it has all licenses, permits, qualifications and approvals of whatsoever nature which
are legally required for Contractor to practice its profession. Contractor represents
and warrants to City that Contractor shall, at its sole cost and expense, keep in effect
at all times during the term of this Agreement any licenses, permits, and approvals
which are legally required for Contractor to practice its profession.. In addition to the
foreg g, Co tractor shall obtain and maintain during the term hereof a valid City
of dNA'~ Business License.
3. TIME. Contractor shall devote such time to the performance of services
pursuant to this Agreement as may be reasonably necessary for satisfactory
performance of Contractor's obligations pursuant to this Agreement.
4. INSURANCE REQUIREMENTS. Contractor shall procure and maintain for
the duration of the contract "occurrence coverage" insurance against claims for
injuries to persons or damages to property which may arise from or in connection
with the performance of the work hereunder by the Contractor, its agents,
representatives, employees or subcontractors. The cost of such insurance shall be
included in the Contractor's bid.
(a) Minimum Scope of Insurance. Coverage shall be at least as broad as:
Insurance Services Office form number GL 0002 (Ed. 1/73)
covering comprehensive General Liability and Insurance Services
Exhibit D Page 1
J:\W PDV+TTl1PC W Ui USDE V ~EXH [B [TD. W 61
Office form number GL 0404 covering Broad Form
Comprehensive General Liability; or Insurance Services Office
Commercial General Liability coverage ("occurrence" form
CG 0001.)
2. Insurance Services Office form number CA 0001 (Ed. 1/78)
covering Automobile Liability, code 1 "any auto" and
endorsement CA 0025.
3. Workers' Compensation Insurance as required by the Labor Code
of the State of California and Employers Liability Insurance.
(b) Minimum Limits of Insurance. Contractor shall maintain limits no less
than:
General Liability: $1,000,000 combined single limit per
occurrence for bodily injury, personal injury and property
damage. If commercial General Liability Insurance or other form
with a general aggregate limit is used, either the general aggregate
limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per
accident for bodily injury and property damage.
3. Workers' Compensation and Employers Liability: Workers'
Compensation limits as required by the Labor Cade of the State
of California and Employers Liability limits of $1,000,000 per
accident.
(c) Deductibles and Self-Insured Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the City. 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,
officials and employees; or the Contractor shall procure a bond
guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
Exhibit D
J ~\WPDWTTYU'CW~USDEV\EXHIBITD. W 61
Page 2
(d) Other Insurance Provisions. The policies are to contain, or be endorsed
to contain, the following provisions:
General Liability and Automobile Liability Coverages.
a. The City, its officers, officials, employees and volunteers
are to be covered as additional insureds as respects:
liability arising out of activities performed by or on behalf
of the Contractor; products and completed operations of
the Contractor, premises owned, occupied or used by the
Contractor, or automobiles owned, leased, hired or
borrowed by the Contractor. The coverage shall contain
no special limitations on the scope of the protection
afforded to the City, its officers, officials, employees or
volunteers.
b. The Contractor'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 Contractor's insurance and
shall not contribute with it.
c. Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to the City, its
officers, officials, employees or volunteers.
d. The Contractor's insurance shall apply separately to each
insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer's liability.
2. Workers' Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation against
the City, its officers, officials, employees and volunteers for losses
arising from work performed by the Contractor for the City.
Exhibit D Page 3
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3. Professional Liability.
Contractor shall carry professional liability insurance in an
amount deemed by the City to adequately protect the Contractor
against liability caused by negligent acts, errors or omissions on
the part of the Contractor in the course of performance of the
services specified in this Agreement.
4. ,All Coverages.
Each insurance policy required by this clause shall be endorsed to
state that coverage shall not be suspended, voided, canceled by
either party, reduced in coverage or in limits except after thirty
(30) days' prior written notice by certified mail, return receipt
requested, has been given to the City.
(e) Acce~tabilit~of Insurers. Insurance is to be placed with insurers with a
Bests' rating of no less than A:VII.
(f) Verification of Coverage. Contractor shall furnish City with certificates
of insurance and with original endorsements effecting coverage required
by this clause. The certificates and endorsements for each insurance
policy are to be signed by a person authorized by that insurer to bind
coverage on its behalf. The certificates and endorsements are to be
received and approved by the City before work commences. The City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
(g) Subcontractors. Contractor shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and endorsements
for each subcontractor. All coverages for subcontractors shall be subject
to all of the requirements stated herein.
(h) Waiver. The 1Zislc Manager of City may approve a variation in those
insurance requirements upon a determination that the coverages, scope,
limits and forms of such insurance are either not commercially available
or that the City's interests are otherwise fully protected.
Exhibit D
J:\WpDWTTY\PCW\BUSDEV\EXHIBITD.W 61
Page 4
1 I 1 t
5. CONTRACTOR NO AGENT. Except as City may specify in writing,
Contractor shall have no authority, express or implied, to act on behalf of City in any
capacity whatsoever as an agent. Contractor shall have no authority, express or
implied, pursuant to this Agreement to bind City to any obligation whatsoever.
6. ASSIGNMENT PROHIBITED. No party to this Agreement may assign any
right or obligation pursuant to this Agreement without the express written consent of
the other party. Any attempted or purported assignment of any right or obligation
pursuant to this Agreement absent written consent shall be void and of no effect.
7. PERSONNEL. Contractor shall assign only competent personnel to perform
sexvices pursuant to this Agreement. In the event that City, in its sole discretion, at
any time during the term of this Agreement, desires the removal of any such persons,
Contractor shall, immediately upon receiving notice from City of such desire of City,
cause the removal of such person or persons.
8. E UAL EMPLOYMENT OPPORTUNITY.
(a) Equal Employment. Contractor shall comply with all Equal
Employment requirements of the City.
During the performance of this Agreement, Contractor agrees as
follows:
Contractor will not discriminate against any employee or
applicant for employment because of race, color, religion,
sex, sexual orientation, handicap, age, or national origin.
Contractor will take affirmative action to ensure that
applicants for employment are employed, and that
employees are treated during employment, without regard
to their race, color, religion, handicap, sex, sexual
orientation, age, or national origin. Such action shall
include but not be limited to the following: employment;
upgrading; demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay
or other forms of compensation; and selection from
training, including apprenticeship.
Exhibit D
):~WPDWTTY~PCW~BUSDE V~EXHIB [TD. W 61
Page S
~ i i ~
ii. Contractor will incorporate the above Affirmative Action
provisions in all sub-consultant~~for services covered by this
Agreement. ~pv~'~`J
(b) General Employment Provisions Relating to Handicap/Disability
Discrimination. No qualified individual with a handicap or disability shall, solely on
the basis of such handicap or disability, be subjected to discrimination in employment
by Contractor.
(c) ReRorts. Contractor shall provide such reports and/or documents to
City as the City may require to demonstrate compliance with the terms of this
Section 8.
9. STANDARD OF PERFORMANCE. Contractor 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 Contractor is
engaged in the geographical area in which Contractor practices its profession. All
instruments of service of whatsoever nature which Contractor delivers to City
pursuant to this Agreement shall be prepared in a substantial, first class and
worlcmanlilce manner and conform to the standards of quality normally observed by a
person practicing in Contractor's profession.
10. HOLD HARMLESS AND RESPONSIBILITY OF CONTRACTORS.
Contractor shall take all responsibility for the work, shall bear all losses and damages
directly or indirectly resulting to him, to any subcontractor, to the City, to City's
officers, employees, and volunteers or to parties designated by ity, on ount of
the performance or character of the work, unforeseen diffic ies, accidents, ~ }I+~G ~~-'~
occurrences or other causes ^.-P,~;,.°~°~^^ ^r*~=~° egligence of the
Contractor or of any subcontractor. Contractor shall indemnify, defend with counC~
reasonably acceptable to City, and hold harmless the City, its officers, officials,
directors, employees, agents, and volunteers from and against any or all loss, liability,
expense, claim, costs (including costs of defense), suits, and damages of every kind,
nature and description erformance of the work.
This paragraph shall not be construed to exempt the City, i employees and officers
from its own fraud, willful injury, sole or active ne lie , or violation of law
whether willful or negligent. For purpo ection 2782 of the Civil Code the
parties hereto recognize and agree t at this a~reement is not a construction contract.
~ ~ ~_ ~. 1
Exhibit D
J:\ W PDWTTIIPCW~BUSDE V\EXH B ITD. W 61
By execution of this Agreement, Contractor acknowledges and agrees that it has read
and understands the provisions hereof and that this paragraph is a material element
of consideration.
Approval of the insurance certificates does not relieve the Contractor or
subcontractors from liability under this paragraph.
11. GOVERNMENTAL .REGULATIONS. To the extent that this Agreement may
be funded by fiscal assistance from another governmental entity, Contractor shall
comply with all applicable rules and regulations to which City is bound by the terms
of such fiscal assistance program.
12. DOCUMENTS. A11 reports, data, maps, models, charts, studies, surveys,
photographs, memoranda or other written documents or materials prepared by
Contractor pursuant to this Agreement shall become the property of City upon
completion of the work to be performed hereunder or upon termination of the
Agreement.
13. COMPLIANCE WITH APPLICABLE LAWS. Contractor shall comply
with all laws applicable to the performance of the work hereunder, including, but not
limited to, laws prohibiting discrimination based on race, religious creed, color,
national origin, ancestry, physical handicap, medical condition, marital status or sex.
14. USE OF RECYCLED PRODUCTS. Contractors 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.
15. AMENDMENTS. This Agreement may be amended or modified only by a
written agreement signed by all parties.
16. VALIDITY. 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.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California and any suit or action by either party shall be brought in the
County of ~,al~ro, California.
Exhibit D
):\W PDWTTIIPC WEB USDEV\EXI-! IBITD. W 61
Page 7
18. MEDIATION. Should any dispute arise out of this Agreement, the parties
shall meet in mediation and attempt to reach a resolution with the assistance of a
mutually acceptable mediator. Neither party shall be permitted to file a legal action
without first meeting in mediation and malting a good faith attempt to reach a
mediated resolution. The costs of the mediator, if any, shall be shared equally by the
parties. If a mediated settlement is reached, neither party shall be deemed the
prevailing party for purposes of the settlement, and each party shall bear its own legal
costs.
19. ATTORNEYS' FEES. If a party brings any action, including an action for
declaratory relief, to enforce or intezpret the provisions of this Agreement, the
prevailing party is entitled to reasonable attorneys' fees in addition to any other relief
to which that party may be entitled. Such fees may be set by the court in the same
action or in a separate action brought for that purpose.
20. NO-WAIVER. 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.
21. SURVIVAL. All obligations arising prior to the termination of this Agreement
and all provisions of this Agreement allocating liability between City and Contractor
survive the termination of this Agreement.
22. CONFLICT OF INTEREST. Contractor may serve other clients, but none
who are active within the corporate limits of the City or who conduct business that
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.
23. SOLICITATION. Contractor agrees not to solicit business at any meeting,
focus group or interview related to this Agreement, either orally or through any
written materials.
24. TERMINATION. The services to be provided under this Agreement may be
terminated by the City without cause at any point in time at the sole and exclusive
discretion of City. The City shall provide Contractor a one week notice prior to
terminating this Agreement.
Exhibit D
~:\W PD\p'CTY~PCW~BUSDENEXHIBITD.W 61
Page 8
~ I ~ ~
25. YEAR 2000 COMPLIANCE.
(a) Warr. Contractor warrants and represents to City that any software,
firmware, hardware, equipment, goods, services, and systems (hereinafter "System"),
sold, leased, licensed, developed, distributed, installed, or programmed by
Contractor pursuant to this Agreement:
a. Is Year 2000 compliant; is designed to be used prior
to, during, and after the calendar Year 2000 AD;
will operate consistently, predictably, and accurately,
without interruption or manual intervention, and in
accordance with all the requirements of this
Agreement in relation to dates it encounters or
processes;
b. That the System shall include the four-digit year
format and will correctly recognize, process display,
compare, calculate, manipulate, output, sort, store,
or otherwise utilize, date information.
c. Will not cause a premature expiration of any security
systems, licenses, or files associated with the System.
Upon being notified in writing by City of the failure of any System to comply
with this Agreement, Contractor shall within sixty (60) days and at no cost to City,
replace or correct the non-complying System with a System that does comply with
this Agreement.
(b) Other systems. To the extent that the System will accept data from other
systems and sources that may not be Year 2000 compliant, the System must properly
recognize, process, compare, calculate, display, manipulate, sort, store, output, or
otherwise utilize such data in a manner that eliminates any date ambiguity so that
the system remains Year 2000 compliant.
(c) Responsibilities of Resellers. If Contractor shall be providing a System
manufactured by a third party, Contractor shall obtain and provide to City written
Exhibit D
J :\ W P DV1T TY~PC W ~B U SD E V ~EXH I B I TD. W 61
Page 9
i ~ + t
confirmation from each third party manufacturer that the System provided is Year
2000 compliant as specified in this Agreement.
(d) No Disclaimers. The warranties set forth in Sections (a) through (c) above
shall not be subject to any disclaimer or exclusion of warranties or to any limitation
of Contractor's liability under this Agreement.
26. LICENSING OF INTELLECTUAL PROPERTY. This Agreement creates a
non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense
any and all copyrights, designs, and other intellectual property embodied in plans,
specifications, studies, drawings, estimates, and other documents or works of
authorship fixed in any tangible medium expression, including but not limited to,
physical drawings or data magnetically or otherwise recorded on computer diskettes,
which are prepared or caused to be prepared by Consultant under this Agreement
("Documents ~ Data"). Consultant shall require all subcontractors to agree in
writing that City is granted anon-exclusive and perpetual license for any Documents
~ Data the subcontractor prepares under this Agreement. Consultant represents and
warrants that Consultant has the legal right to license any and all Documents ~
Data. Consultant makes no such representation and warranty in regard to
Documents ~ Data which were prepared by design professionals other than
Consultant or provided to Consultant by the City. City shall not be limited in any
way in its use of the Documents & Data at any time, provided that any such use not
within the purposes intended by this Agreement shall be at City's sole risk.
27. CO DENTIALITY. All ideas, memoranda, specifications, plans,
procedures, rawings, descriptions, computer program data, input record data, written
information, and other Documents ~ Data either created by or provided to
Consultant in connection with the performance of this Agreement shall be held
confidential by Consultant. Such materials shall not, without the prior written
consent of City, be used by Consultant for any purposes other than the performance
of the services under this Agreement. Nor shall such materials be disclosed to any
person or entity not connected with the performance of the services under this
Agreement. Nothing furnished to Consultant which is otherwise known to
Consultant or is generally known, or has become known, to the related industry shall
be deemed confidential. Consultant shall not use City's name or insignia,
photographs relating to project for which Consultant's services are rendered, or any
publicity pertaining to the Consultant's services under this Agreement in any
Exhibit D
~:~WPDWTTY~PC W~BUSDEV~EXH IB ITD. W 61
Page 10
~ ~ ~ ~
magazine, trade paper, newspaper, television or radio production r other similar
medium without the prior written consent of the City.
28. CONSULTANT'S BOOKS AND RECORDS.
(a) 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 City for
a minimum period of three (3) years, or for any longer period required by law, from
the date of final payment to Consultant to this Agreement.
(b) Consultant shall maintain all documents and records which demonstrate
performance under this Agreement for a minimum period of three (3) years, or for
any longer period required by law, from the date of termination or completion of this
Agreement.
(c) Any records or documents required to be maintained pursuant to this
Agreement shall be made available for inspection or audit, at any time during regular
business hours, upon written request by the City Manager, City Attorney, City
Auditor or a designated representative of these officers. Copies of such documents
shall be provided to the City for inspection at City Hall when it is practical to do so.
Otherwise, unless an alternative is mutually agreed upon, the records shall be
available at Consultant's address indicated for receipt of notices in this Agreement.
(d) Where City has reason to believe that such records or dacuments may
be lost or discarded due to dissolution, disbandment or termination of Consultant's
business, City may, by written request by any of the above named officers, require
that custody of the records be given to the City and that the records and documents
be maintained in City Hall. Access to such records and documents shall be granted to
any party authorized by Consultant, Consultant's representatives, or Consultant's
successor-in-interest.
29. EXECUTION. This Agreement may be executed in several counterparts, each
of which shall constitute one and the same instrument and shall become binding
upon the parties when at least one copy hereof shall have been signed by both parties
hereto. In approving this Agreement, it shall not be necessary to produce or account
for more than one such counterpart.
Exhibit D Page 11
J :~WPDWT"CY~PCW\BUSDEV~EXH IBITD. W 61