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1998-06-08 City Council (23)
City Manager’s Report TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS DATE:JUNE 8, 1998 CMR:253:98 SUBJECT:APPROVAL OF CONTRACT WITH GEOFF BROSSEAU FOR CONSULTANT SERVICES TO PROVIDE ASSISTANCE WITH THE POLLUTION PREVENTION PROGRAM RECOMMENDATION Staff recommends that Council: Approve and authorize the Mayor to execute the attached contract with Geoff Brosseau in the amount of $180,000 for the first contract year for the consultant team of Geoff Brosseau, Larry Walker Associates, EIP Associates, Uribe and Associates, Janet Cox, and Artefact Design to conduct technical studies to identify sources of pollutants to the sanitary sewer and storm drain systems, and develop and implement programs to reduce these pollutants at the source. Authorize the City Manager or her designee to negotiate and execute one or more change orders to the contract with Geoff Brosseau for related, additional but unforeseen work which may develop during the project, the total value of which shall not exceed $18,000. Authorize the City Manager or her designee to exercise the option to renew the contract for the second and third year for $125,000 in each year provided the contractor is responsive to the City’s needs, and the quality of the contractor’s work is acceptable during the first year of the contract and/or other conditions which will determine the City’s willingness to renew the contract. Funding for years two and three is contingent upon Council approval of the budget for each subsequent year. Authorize the City Manager or her designee to negotiate and execute one or more change orders to the second and third years of the contract for related, additional but unforeseen work which may develop during the project, the total value of which shall not exceed $18~000 in each year, provided the contract is renewed for those years. CMR:253:98 Page 1 of 3 DISCUSSION Project Description The work to be performed under the contract is assisting the City in its source identification and pollution prevention efforts for the sanitary sewer and storm drain system. The purpose of these efforts is to improve the quality of treatment plant discharge and storm water runoff, and to meet the conditions of discharge permits issued to the City. The contract scope includes conducting technical studies, developing new pollution prevention programs and continuing the existing pollution prevention program for Vehicle Service Facilities. The purpose of technical studies is to identify pollutant sources, means to reduce these pollutants, and to prioritize pollution prevention efforts. Selection Process Staffsent a Request for Proposals (RFP) to fourteen firms on March 16, 1998. The proposal period was 29 days. Four firms teamed together to submit the one proposal received. ¯ Five firms responded that they would not be submitting a proposal. Three of these firms indicated they were too busy, and the other two did not offer a reason. Five finns did not respond. Staff believes that a key reason for the low response rate is the extremely specialized nature of the work, and that four firms with significant experience in this area teamed together rather than submit individual proposals. A selection advisory committee consisting of two Regional Water Quality Control Plant (RWQCP) managers and a manager from the City of Mountain View, a RWQCP Partner agency, reviewed the proposal. The committee agreed that the proposed team excels in meeting the selection criteria. The team consists of several experts in the technically specialized field of water pollution prevention. These firms all have experience working with the RWQCP and are familiar with the current efforts of the program. These firms also have excellent references from other local government agencies. Several of them have staff located close to the RWQCP, and they all have rates comparable to competitors’ rates. The committee agreed to select the proposed team based on their qualifications and proven track record without expending resources on an oral interview. RESOURCE IMPACT Funds are available in the Wastewater Treatment Fund FY 1998-1999 operating budget. POLICY IMPLICATIONS This report does not represent any change to existing City policies. CMR:253:98 Page 2 of 3 ENVIRONMENTAL REVIEW The assistance provided to the City pursuant to this agreement-does not constitute a project under the California Environmental Quality Act. Therefore, an environmental assessment is not required. ATTACHMENTS Contract PREPARED BY: Philip Bobel, Manager, Environmental Compliance Division DEPARTMENT HEAD REVIEw: ~ ~, ~ GLENN S. ROBERTS Director of Public Works CITY MANAGER APPROVAL: ~ ~/~_ , , , ~ Assistant City Manager CMR:253:98 Page 3 of 3 CONTRACT NO. BETWEEN THE CITY OF PALOALTO AND GEOFF BROSSEAU FOR CONSULTING SERVICES This Contract No. is entered into , by and between the CITY OF PAL0 ALTO, a chartered city and a municipal corporation of the State of California ("CITY"), and GEOFF BROSSEAU a sole proprietor, located at 518 Central Avenue, Menlo Park, CA 94025 ("CONSULTANT"). RECITALS: WHEREAS, CITY desires certain professional consulting services ("Services") and the preparation and delivery of, without limitation, one or more sets of documents, drawings, maps, plans, designs, data, calculations, surveys, specifications, schedules or other writings ("Deliverables") (Services and Deliverables are, collectively, the "Project"), as more fully described in Exhibit "A"; and WHEREAS, CITY desires to engage CONSULTANT, including its employees, if any, in providing the Services by reason of its qualifications and experience in performing the Services, and CONSULTANT has offered to complete.the Project on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Contract, the parties agree: SECTION I. TERM I.i This Contract will commence on the date of its execution by CITY, and will terminate upon the completion of the Project, unless this Contract is earlier terminated by CITY. Upon the receipt of CITY’s notice to proceed, CONSULTANT will commence work on the initial and subsequent Project tasks in accordance with the time schedule set forth in Exhibit "A". Time is of the essence of this Contract. In the event that the Project is not completed within the time required through any fault of CONSULTANT, CITY’s city manager will have the option of extending the time schedule for any period of time. This provision will not preclude the recovery of damages for delay caused by CONSULTANT. SECTION 2.SCOPE OF PROJECT; CHANGES & CORRECTIONS 2.1 The scope of Services ’and Deliverables constituting the Project will be performed, delivered or executed by CONSULTANT under the phases of the Basic Services as described below. 980519 syn 00714[5 1 2.2 CITY may order substantial changes in the scope or character of the Basic Services, the Deliverables, or the Project, either decreasing or increasing the amount of work required of CONSULTANT. In the event that such changes are ordered, subject to the approval of CITY’s City Council, as may be required, CONSULTANT will be entitled to full compensation for all work performed prior to CONSULTANT’s receipt of the notice of change and further will be entitled to an extension of the time schedule. Any increase in compensation for substantial changes will be determined in accordance with the provisions of this Contract. CITY will not be liable for the cost or payment of any change in work, unless the amount of additional compensation attributable to the change in work is agreed to, in writing, by CITY before CONSULTANT commences the performance of any such change in work. 2.3 Where the Project entails the drafting and submission of Deliverables, for example, construction plans, drawings, and specifications, any and all errors, omissions, or ambiguities in the Deliverables, which are discovered by CITY before invitations to bid on a construction project (for which the Deliverables are required) are distributed by CITY, will be corrected by CONSULTANT at no cost to CITY, provided CITY gives notice to CONSULTANT. 2.4 Any and all errors, omissions, or ambiguities in the Deliverables~ which are discovered by CITY after the construction contract is awarded by CITY, will be performed by CONSULTANT, as follows: (a) at no cost to CITY insofar as those Services, including the Basic Services or the Additional Services, as described below, or both, will result in minor or nonbeneficial changes in the construction work required of the construction contractor; or (b) at CITY’s cost insofar as those Services, including the Basic Services or the Additional Services, or both, will add a direct and substantial benefit to the construction work required of the construction contractor. The project manager in the reasonable exercise of his or her discretion will determine whether the Basic Services or the Additional Services, or both, will contribute minor or substantial benefit to the construction work. SECTION 3. CONSULTANT QUALIFICATIONS,STATUS, AND DUTIES OF 3.1 CONSULTANT represents andwarrants that it has theexpertise and professional qualifications to furnish or cause to be furnished the Services and Deliverables. CONSULTANT further represents and warrants that the project director and every individual,, including any consultant (including CONSULTANTs), charged with the performance of the Services are duly licensed or certified by the State of California, to the extent such licensing or certification is~ required by law to perform the Services, and that the Project will be executed by them or under their supervision. CONSULTANT will furnish to CITY for approval, prior 980519 syn 0071415 to execution of this Contract, a list of all individuals and the names of their employers or principals to be employed as consultants. 3.2 In reliance on the representations and warranties set forth in this Contract, CITY hires CONSULTANT to execute, and CONSULTANT covenants and agrees that it will execute or cause to be executed, the Project. 3.3 CONSULTANT will assign GEOFF BROSSEAU as the project director to have supervisory responsibility for the performance, progress, and execution of the Project and as the project coordinator who will represent CONSULTANT during the day- to-day work on the Project. If circumstances or conditions subsequent to the execution of this Contract cause the substitution of the project director or project coordinator for any reason, the appointment of a substitute project director or substitute project coordinator will be subject to the prior written approval of the project manager. 3.4 CONSULTANT represents and warrants that it will: 3.4.1 Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the Project; 3.4.2 Keep itself fully informed of all existing and future Federal, State of California, and local laws, ordinances, regulations, orders, and decrees which may affect.those engaged or employed under this Contract and any materials used in CONSULTANT’s performance of the Services; 3.4.3 At all times observe and comply with, and cause its employees and consultants, if any, who are assigned to the performance of this Contract to observe and comply with, the laws, ordinances, regulations, orders and decrees mentioned above; and 3.4.4 Will report immediately to the project manager, in writing, any discrepancy or inconsistency it discovers in the laws, ordinances, regulations, orders, and decrees mentioned above in relation to .the Deliverables. 3.5 Any Deliverables given to, or prepared or assembled by, CONSULTANT or. its consultants, if any, under, this Contract will become the property of CITY and will not be made available to any individual or organization by CONSULTANT or its consultants, if any, without the prior written approval of the city manager° 3.6 CONSULTANT will provide CITY with one (I) copy of any documents which are a part of the Deliverables upon their completion and acceptance by CITY. 980519 syn 0071415 3.7 If CITY requests additional copies of any documents which are a part of the Deliverables, CONSULTANT will provide such additional copies and CITY will compensate CONSULTANT for its duplicating costs. 3.8 CONSULTANT will be responsible for employing or engaging all persons necessary to .execute the Project. All consultants of CONSULTANT will be deemed to be directly controlled and supervised by CONSULTANT, which will be responsible for their performance. If any employee or consultant of CONSULTANT fails or refuses to carry out the provisions of this Contract or appears to be incompetent or to act in a disorderly or improper manner, the employee.or consultant will be discharged immediately from further performance under this Contract on demand of the project manager. 3.9 In the execution of the Project, CONSULTANT and its consultants, if any, will at all times be considered independent contractors and not agents or employees of CITY. 3.10 CONSULTANT will perform or obtain or cause to be performed or obtained any and all of the following Additional Services, not included under the Basic Services, if so authorized, in writing, by CITY: 3.10.1 Providing services as an expert ~witness in connection with any public hearing or meeting, arbitration proceeding,or proceeding of a court of record; 3.10.2 Incurring travel and subsistence expenses for CONSULTANT and its staff beyond those normally required under the Basic Services; 3.10.3 ¯Performing any other Additional Services that may be agreed upon by the parties subsequent to the execution of this Contract; and 3.10.4 Other Additional Services now or hereafter described in Exhibit "A" to this Contract. 3.11 CONSULTANT will be responsible for employing all consultants deemed necessary to assist CONSULTANT in the performance of the Services. The appointment of consultants must be approved, in advance, by CITY, in writing, and must remain acceptable to CITY during the term of this Contract. SECTION 4. DUTIES OF CITY 4.1 CITY will furnish or cause to be furnished the services listed in Exhibit."A" and such "information rega[ding its requirements applicable to the Project as may be reasonably requested by CONSULTANT. 980519 syn 0071415 4 4.2 CITY will review and approve, as necessary, timely manner the Deliverables and each phase of work performed by CONSULTANT. CITY’s estimated time of review and approval will be furnished to CONSULTANT at the time of submission of each phase of work.~ CONSULTANT acknowledges and understands that the interrelated exchange of information among CITY’s various departments makes it extremely difficult for CITY to firmly establish the time of each review and approval task. CITY’s failure to review and approve within the estimated time schedule will not constitute a default under this Contract. 4.3 The city manager will represent CITY for all purposes under this Contract. PHIL BOBEL is designated as the project manager for the city manager. The project manager will supervise the performance, progress, and execution of the Project, and will be assisted by KELLY MORAN, the Manager of Environmental Control Programs. 4.4 If CITY observes or otherwise becomes aware of any default in the performance of CONSULTANT, CITY will use reasonable efforts to give written notice thereof to CONSULTANT in a timely manner. SECTION 5.COMPENSATION 5.1 CITY will cQmpensate CONSULTANT for the following services and work: 5.1.1 In consideration of the full performance of the Basic Services, including any authorized reimbursable expenses, CITY will pay CONSULTANT a fee not to exceed One Hundred Eighty Thousand Dollars ($180,000). The amount of compensation will be calculated in accordance with the hourly rate schedule set forth in Exhibit "B", on a time and materials basis, up to the maximum amount set forth in this Section. the fees of the consultants, who have direct contractual relationships with CONSULTANT, will be approved, in advance, by CITY. CITY reserves the right to refuse payment of such fees, if such prior approval is not obtained by CONSULTANT. 5.1.2 The full payment of charges for extra work or changes, or both, in the execution of the Project will be made, provided such request for payment is initiated by CONSULTANT and authorized, in writing, by the project manager. Payment will be made within thirty (30) days of submission by CONSULTANT of a statement, in triplicate, of itemized costs covering such work or changes, or both. Prior to commencing such extra work or changes, or both, the parties will agree upon an estimated maximum cost for such extra work or changes. CONSULTANT will not be paid for extra work or changes, including, without limitation, any design work or change order preparation, which is made necessary on account of CONSULTANT’s errors, omissions, or oversights. 980519 syn 0071415 5 5.1.3 Direct personnel expense of employees assigned to the execution of the Project by CONSULTANT will include only the work of. architects, engineers, designers, job captains, surveyors, draftspersons, specification writers and typists, in consultation, ~ research and design, work in producing drawings, specifications and other documents pertaining to the Project, and in. services rendered during construction at the site, to the extent such services are expressly contemplated under this Contract. Included in the cost of direct personnel expense of these employees are salaries and mandatory and customary benefits such as statutory employee benefits, insurance, sick leave, holidays and vacations, pensions and similar benefits. 5.2 The schedule of payments will be made as follows: 5.2.1 Payment of the Basic Services will be made in monthly progress payments in proportion to the quantum of services performed, or in accordance with any other schedule of payment mutually agreed upon by the parties, as set forth in Exhibit "B", or within thirty (30) days of submission, in triplicate, of such requests if a schedule of payment is not specified. Final payment will be made by CITY after CONSULTANT has submitted all Deliverables, including, without limitation, reports which have been approved by the project manager. 5.2.2 Payment of the Additional Services will be made in monthly progress payments for services rendered, within thirty (30) days of submission, in triplicate, of such requests. 5.2.3 No deductions will be made from CONSULTANT’s compensation on account of penalties, liquidated damages, or other sums withheld by CITY from payments to general contractors. SECTION 6.ACCOUNTING, AUDITS, OWNERSHIP OF RECORDS 6.1 Records of the direct personnel expenses and expenses incurred in connection with the performance of Basic Services and Additional Services pertaining to the Project will be prepared,maintained, and retained by CONSULTANT in accordance with generally accepted accounting principles and will be made available to CITY for auditing purposes at mutually convenient times during the term of this Contract and for three (3) years following the expiration or earlier termination of this Contract. 6.2 The originals of the Deliverables prepared by or under the direction of CONSULTANT in the performance of this Contract will become the property of CITY irrespective of whether the Project is completed upon CITY’s payment of the amounts required to be paid to CONSULTANT. These originals will be delivered to CITY without additional compensation. CITY will have the right to utilize any final and incomplete drawings, estimates, specifications, and any other documents prepared hereunder by 980519 syn 0071415 6 ~CONSULTANT, but CONSULTANT disclaims any responsibility or liability for any alterations or modifications of such documents. SECTION 7.INDEMNITY 7.1 CONSULTANT agrees to protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents, from any and all demands, claims, or liability of any nature, including death or injury to any person, property damage or any other loss, caused by or arising out of CONSULTANT’s, its officers’, agents’, consultants’ or employees’ negligent acts, errors, or omissions, or willful misconduct, or conduct for which applicable law may impose strict liability on CONSULTANT in the performance of or failure to perform its obligations under this Contract. SECTION 8. WAIVERS 8.1 The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Contract or of the provisions of any ordinance or law will not be deemed to be a waiver of any such covenant, term, condition, provision, ordinance, or law or of any subsequent breach or violation of the same or of any other covenant, term, condition, provision, ordinance or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder will not be deemed to be a waiver of any preceding breach or violation by the other party of any covenant, term, condition or provision of this Contract or of any applicable law or ordinance. 8.2 No payment, partial payment, acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Contract. SECTION 9.INSURANCE 9.1 CONSULTANT, at its sole cost and expense, will obtain and maintain, in full force and effect during the term of this Contract, the insurance coverage described in Exhibit "C", insuring not only CONSULTANT and its consultants, if any, but also, with the exception of workers’ compensation, employer’s liability and professional liability insurance, naming CITY as an additional insured concerning CONSULTANT’s performance under this Contract. 9.2 All insurance coverage required hereunder will be provided through carriers with Best’s Key Rating Guide ratings of A:X or higher which are admitted to transact insurance business in the State of California. Any and all consultants of CONSULTANT retained to perform Services underthis Contract will obtain and maintain, in full force and effect during the term of this Contract, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 980519 syn 0071415 7 9.3 Certificates of such insurance, preferably on the forms provided by CITY, will be filed with CITY concurrently with the execution of this Contract. The certifihates will be subject to the approval of~ CITY’s risk manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled or altered by the insurer except after filing with the CITY’s city clerk thirty (30) days’ prior written notice of such cancellation ~or alteration, and that the City of Palo Alto is named as an additional insured except in policies of workers’ compensation, employer’s liability, and professional liability insurance. Current certificates of such insurance will be kept on file at all times during the term of this Contract with the city clerk. 9.4 The procuring of such required policy or policies of insurance will not be construed to limit CONSULTANT’s liability hereunder nor to fulfill the indemnification provisions of this Contract. Notwithstanding the policy or policies of insurance, CONSULTANT will be obligated for the full and total amount of any damage, injury, or loss caused by or directly arising as a result of the Services performed under this Contract, including such damage, injury, or loss arising after the Contract is terminated or the term has expired. SECTION I0. WORKERS’ COMPENSATION I0.i CONSULTANT, by executing this Contract, certifies that it is aware of theprovisions of the Labor Code of the State of California which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that, it will comply with such provisions, .as applicable, before commencing the performance of the Project. SECTION II -TERMINATION OR SUSPENSION OF CONTRACT 0R PROJECT II.I The city manager may suspend the execution of the Project, in whole or in part, or terminate this Contract, with or without cause, by giving thirty (30) days’ prior written notice thereof to CONSULTANT, or immediately after submission to CITY by CONSULTANTof any completed item of Basic Services. Upon receipt of such notice, CONSULTANT will immediately discontinue its performance under this Contract. 11.2 CONSULTANT may terminate this Contract or suspend its execution of the Project by giving thirty (30) days’ prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY or in the event CITY indefinitely withholds or withdraws its request for the initiation or continuation of Basic Services or the execution of the Project. 980519 syn 0071415 11.3 Upon such suspension or termination by CITY, CONSULTANT will be compensated for the Basic Services and Additional Services performed and Deliverables received and approved prior to receipt of written notice from CITY of such suspension or abandonment, together with authorized additional and reimbursable expenses then due. If the Project is resumed after it has been suspended for more than 180 days, any change in CONSULTANT’s compensation will be subject to renegotiation and, if necessary, approval of CITY’s City Council.~ If this Contract is suspended or terminated on account of a default by CONSULTA~, CITY will be obligated to compensate CONSULTANT only for that portion of CONSULTANT’s services which are of direct and immediate benefit to CITY, as such determination may be made by the city manager in the reasonable exercise of her discretion. 11.4 In the event of termination of this Contract or suspension of work on the Project by CITY where CONSULTANT is not in default, CONSULTANT will receive compensation as follows: 11.4.1 For approved items of services, CONSULTANT will be compensated for each item of service fully performed in the amounts authorized under this Contract. 11.4.2 For approved items of services on which a notice to proceed is issued by CITY, but which are not fully performed, CONSULTANT will be compensated for each item of service in an amount which bears the same ratio to the total fee otherwise payable for the performance of the service as the quantum of service actually rendered bears to the services necessary for the full performance of that item of service. 11.4.3 The total compensation payable under the preceding paragraphs of this Section will not exceed the payment specified under Section 5 for the respective items of service to be furnished by CONSULTANT. 11.5 Upon such suspension or termination, CONSULTANT will deliver to the city manager immediately any and all copies of the Deliverables, whether or not completed, prepared by CONSULTANT or its consultants, if anY, or given to CONSULTANT or its consultants, if any~ in connection with this Contract. Such materials will become the property of CITY. 11.6 The failure of CITY to agree with CONSULTANT’s independent findings, conclusions, or recommendations, if the same are called for under this Contract, on the basis of differences in matters of judgment, will not be construed as a failure on the part of CONSULTANT to fulfill its obligations under this Contract. SECTION......12. ASSIGNMENT 12.1 This Contract is for the personal services of CONSULTANT, therefore, CONSULTANT will not assign, transfer, 980519 syn ~371415 9 convey, or otherwise dispose of this Contract or any right, title or interest in or to the same or any part thereof without the prior written consent of CITY. A consent to one assignment will not be deemed to be a consent to any subsequent assignment. Any assignment made without the approval of CITY will be void and, at the option of the city manager, this Contract may be terminated. This Contract will not be assignable by operation of law. SECTION 13. NOTICES 13.1 All notices hereunder will be given, in writing, and mailed, postage prepaid, by certified, mail, addressed as follows: To CITY:Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 To CONSULTANT: Attention of the project director at the address of CONSULTANTrecited above SECTION 14.CONFLICT OF.INTEREST 14.1 In accepting this Contract, CONSULT ~ANT covenants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services. 14.2 CONSULTANT further covenants "that, in the performance of this Contract, it will not employ contractors or persons having such an interest mentioned above. CONSULTANT certifies that noone who has or will have any financial interest under this Contract is an officer or employee of CITY; this provision will be interpreted in accordance with the applicable provisions of the PaloAlto Municipal Code and the Government Code of the State of California. SECTION 15 NONDISCRIMINATION 15.1 As set forth in the Palo Alto Municipal Code, no discrimination will bemade in the employment of persons under this Contract because of the age, race, color, national origin, ancestry, religion, disabilitY, sexual preference or gender of such person. If the value of this Contract is, or may be, five thousand dollars ($5,000) or more, CONSULTANT agrees to meet all requirements of the Palo Alto Municipal Code pertaining to nondiscrimination in employment, including completing the requisite form furnished by CITY and set forth in Exhibit 980519 syn 0071415 I0 15.2 CONSULTANT agrees that each contract for services from independent providers will contain a provision substantially as follows: "[Name of Provider] will provide CONSULTANT with a certificate stating that [Name of Provider] is currently in compliance with all Federal and State of California laws covering nondiscrimination in employment; and that [Name of Provider] will not discriminate in the employment of any person under this contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference~ or gender of such person." 15.3 If CONSULTANT is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of Federal law or executive order in the performance of this Contract, it wil! be in default of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part, or to deduct the sum of twenty-five dollars ($25) for each person for each calendar day during which such person was subjected to discrimination, as damages for breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer will constitute evidence of a breach of this Contract. 15.4 If CONSULTANT is found in default of the nondiscrimination provisions of this Contract, CONSULTANT will be found in material breach of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part; or to deduct from the amount payable to CONSULTANT the sum of two hundred fifty dollars ($250) for each calendar day during which CONSULTANT is not in compliance with this provision as damages for breach of contract, or both. SECTION 16.MISCELLANEOUS PROVISIONS 16.1 CONSULTANT represents and warrants that it has knowledge of the requirements of the federal Americans with Disabilities Act of 1990, and the Government Code and the Health and Safety Code of the State of California, relating to access to public buildings and accommodations for disabled persons, and relating to facilities for ~.disabled persons. CONSULTANT will comply with or ensure by its advice that compliance with such provisions will be effected pursuant to the terms of this Contract. 16.2 Upon the agreement of the parties, any controversy or claim arising out of or relating to this Contract may be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by 980519 syn 0071415 11 the Arbitrators may be entered in any court having jurisdiction thereof. 16.3 This Contract will be governed by the laws of the State of California, excluding its conflicts of law. 16.4 In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court for the Northern District of California in the County of Santa Clara, State of California. 16.5 The prevailing party in any action brought to enforce the terms of this Contract or arising out of this Contract may recover its reasonable costs and attorneys’ fees expended in connection with that action. 16.6 This document represents the entire and integrated Contract between the parties and supersedes all prior negotiations, representations, and contracts, either written or oral. This document may be .amended only by a written instrument, which is signed by the parties. 16.7 All provisions of this Contract, whether covenants or conditions, will be deemed to be both covenants and conditions. 16.8 The covenants, terms, conditions and provisions of this Contract will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and consultants, as the case may be, of the parties. 16.9 If a court of competent jurisdiction finds or rules that any provision of this Contract or any amendment thereto is void or unenforceable, the unaffected provisions of this Contract and any amendments thereto wiil remain in full force and effect. 16.10 All exhibits referred to in this Contract and any addenda, appendices, attachments, and schedules which, from time to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and will be deemed to be a~part of this Contract. 16.11 This Contract may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. 16.12 This Contract is subject to the fiscal provisions of the~Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Contract will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Contract are no longer 980519 syn 0071415 12 available. This Section 16.12 will take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Contract. IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Contract on the date first above written. ATTEST:CITY OF PALO ALTO City Clerk APPROVED AS TO FORM: Mayor Senior Asst. City Attorney APPROVED: Assistant City Manager Director of Public Works GEOFF BROSSEAU By: /~Z~x~_~ _ Its: Taxpayer’s I.D. No. 558-33-3139 Director of Administrative Services Risk Manager Attachments: EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": EXHIBIT "D": SCOPE OF PROJECT & TIME SCHEDULE RATE SCHEDULE INSURANCE NONDISCRIMINATION COMPLIANCE FORM~ 980519 syn 0071415 13 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code ~ 1189) STATE OF COUNTY OF ) ) SS. . On 7~/ ~i/~", before me, the undersigned, a Notary Pu~ic In and f~r said County and State, personally appeared , per~onally known to me or~6ve~!/Ito me on the basis of satisfactory evldence to be the person(s) w~ose name(s) ~s/are subscrlbed to the wlth~n instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. S,~nature of Notary Public 980519 ayn 0071415 14 Exhibit A: Scope of Services and Time Schedule POLLUTION PREVENTION PROGRAMS A. OVERVIEW The Contractor will assist the City in its source identification and reduction efforts for discharges to the sanitary sewer and storm drain systems. The program includes conducting technical studies, developing new pollution prevention programs and continuing the existing pollution prevention program for Vehicle Service Facilities (VSF). The purpose of the technical studies is to identify pollutant sources, means to reduce these pollutants at the source, and to prioritize pollution prevention efforts. New pollution prevention programs shall be developed, as directed by the City, for priority sources. The Contractor shall implement all new and continued programs in a manner similar to the current VSF program, particularly to preserve the emphasis on education and the spirit of cooperation. The City and the Contractor acknowledge and agree that at the time of execution of this Agreement, it will not be practical to have determined an exact time schedule for the Contractor’s performance for all the tasks under this Scope of Project. Therefore, the Contractor shall initiate the performance of each task when so directed by the City’s Project Manager (Project Manager). Upon the Project’s Manager’s direction, and prior to the initiation’ of work on each of the tasks below, Contractor shall prepare a detailed work plan for that task. The detailed work plan shall define specific work elements to be performed, the level of effort required to complete the task, the specific staff assigned to the task, and the time schedule for the task. City’s prior approval of the proposed work plan for each task shall be required prior to initiation of work on each task. Contractor shall comply with the time schedules set forth in each such work plan. B. TASKS The Contractor will conduct the following tasks under the direction of the City: 1.Technical Studies a) Work Plan: The Contractor shall submit a work plan, if requested by the City, for each additional technical study as described in Section A above. b)Conduct Research: Technical studies shall be completed, as directed by the City. The purpose of these studies will be to identify pollutant sources,, means to reduce these pollutants at the source, and/or to prioritize pollution prevention efforts. Such studies are likely to include items identified in the 1998 and subsequent Clean Bay Plans and in recently published source identification studies for mercury, dioxins, PCBs, and organochlorine pesticides. o These research efforts may include, but not be limited to, the following: i)Literature surveys. ii)Product research. iii)Site visits to determine the following: a)types of processes conducted at each site, b)types of activities that define a particular business type, c)types of wastes generated, and d)applicable Best Management Practices. iv) v) Sampling visits: a) the purpose for sampling may include: (1) research on fluids, cleaning solutions, and miscellaneous products, (2)research to develop BMPs, , (3)identification of illegal discharges, (4)determine compliance at permitted facilities, (5)research to bring a facility into compliance, b)the Contractor shall deliver samples to the City that same day,. c)the City shall be responsible for laboratory analysis costs, In-depth studies at "volunteer sites," c)Develop Recommendations for RWQCP Actions: Contractor shall evaluate the need for new Best Management Practices or other pollution prevention measures to be implemented by the RWQCP and develop these practices or measures as needed and technically feasible. d)Produce Reports: Contractor shall prepare a summary report or other technical information document to record the technical studies’ results. These reports shall be submitted within thirty days of completion of work. In each case, the Contractor shall submit a draft for RWQCP review and ~pproval prior to publication of the final report. Development of New Pollution Prevention Programs a) Work Plan: Contractor shall submit a work plan, if requested by the City, for each new pollution.prevention program as described in Section A above b) c) Program Plan: Contractor will be required to provide a program plan detailing the procedures necessary to implement a new program. New programs shall be flexible enough so that they may be operated by either City staff or a consultant in future years. Program Development: Contractor shall develop new pollution prevention programs for priority sources, as directed by the City. New programs shall address discharges to both the sanitary sewer and storm drain system. The Contractor shall implement all new programs in a manner that preserves the emphasis on education and the spirit of cooperation. Program development efforts may include, but not be limited to: i) ii) iii) iv) v) vi) vii) viii) ix) Compile a facilities list for new commercial business categories. Develop Best Management Practices and other educational materials for new programs. Conduct site visits to distribute RWQCP information on pollution prevention and to educate/provide technical assistance to the facility. The Contractor may be asked to develop a list of the facilities to be investigated or the City will provide the Contractor with a list. Site visits. should last between twenty and sixty minutes depending upon the size of the facility. Facility inspection reports shall be completed during the site visit. A copy shall be provided to the City within seven days of the visit. Conduct sampling visits if appropriate. The Contractor shall deliver collected samples to the City that same day. The City shall be responsible for laboratory analysis costs. Prepare and maintain an updated vendor list for treatment products and pollution prevention products. Aid in the graphic design and placement of ads, for any of the other pollution prevention programs, in the local newspapers and other venues. Order items, such as brochures and decals, for any of the other pollution prevention programs. This task would also involve the intermediate steps such as the graphic design and provision of a camera ready copy or film to the printer. Design, layout, produce artwork, print, and distribute educational materials. Prepare and submit memorandums or final reports for each of the new programs developed within thirty days of completion of work.. 3.Vehicle Service Facilities Program a)Work Plan: Contractor shall prepare a detailed annual work plan for the Vehicle Service Facilities Program for accomplishing the pertinent tasks described below. The work plan shall include a time schedule of activities. The work plan shall be a somewhat flexible document in that necessary additions or deletions may be made as the program progresses. The work plan for Vehicle Service Facilities shall be submitted to the City within 15 days of the effective date of the Notice to Proceed issued by the City and shall be executed upon approval by the City. b)Sampling Visits The Contractor may also conduct site visits to collect samples from a facility in any of the following situations: i) ii) iii) iv) v) wastewater discharges from up to 30 permitted facilities for compliance purposes, research to bring facility into compliance, research on fluids, cleaning solutions, and miscellaneous products, research to develop BMPs, illegal discharges, or other special projects. c) d) e) The City shall provide sampling containers and a sampling pump, if required. The Contractor shall deliver collected samples to the City that same day. The City shall be responsible for laboratory analysis costs. Produce Reports: Contractor shall prepare inspection reports as described above in Section 3b. An annual final report for the Vehicle Service Facilities Program summarizing the year’s efforts, results, and providing future recommendations shall also be prepared, A draft report (or several drafts if necessary) shall be subject to City review and approval prior to submittal of the final report. The first draft report shall be submitted by December 1 of each year. Dates for intermediate drafts shall be agreed upon by the Contractor and the City. The final report shall be submitted by January 31 of each year for the prior calendar year’s work. The Contractor shall provide the City with 25 copies of the final report upon completion and acceptance of the report by the City. Research and Document Products and Services Contractor shall keep current on new ideas, technologies and products relevant to Vehicle Service Facilities and maintain files on such information. The Contractor shall update the City’s vendor list for the Vehicle Service Facility Program as needed. Recognition Items and Educational Materials i) ’Contractor will be required to order recognition items for facilities that qualify as Clean Bay Businesses. Recognition items include: decals, small brochures, tear strips, and other miscellaneous items. The recognition program also includes advertising in the local newspapers and other venues, such as the telephone book and movie theaters; Contractor shall manage design and placement of advertising; the City shall be responsible for advertising costs unless the annual wgrk plan specifies otherwise. ii)Contractor may be required to design, layout, produce artwork, print, and distribute educational materials. Special Projects i) Contractor will be required to continue special projects such as the educational program for high school automotive classes. The educational program for high school automotive classes involves visiting local high school classes (approximately 5 per semester) and talking to the teacher and students about automotive BMPs for both the school shop and home garages. ii)Other special projects for the Vehicle Service Facility Program may be completed as identified needed by the City. Palo Alto Creek Mapping The purpose of this task is to produce computer generated maps of San Francisquito, Adobe, Barron, and Matadero watersheds to serve as educational tools for students and community members. The maps will be built using mapping software to combine existing digital data (including City of Palo Alto GIS data) and new data elements as directed by the City. a) The Contractor shall submit a work plan for this task within 60 days of the effective date of the Notice to Proceed issued by the City. b)The Contractor shall implement the work plan, upon approval of the work plan by the City, on a schedule contained in the work plan. c)The Contractor will complete this task in the first contract year. Additional Requirements a) General Site Visits: As needed the Contractor shall conduct visits to other types of commercial business to determine compliance with the sewer use ordinance and to distribute Best Management Practices and other pollution prevention information. Each visit shall be concluded with a discussion/review of the site’s compliance or noncompliance and appropriate technical assistance. Sampling may be conducted during these visits to identify illegal discharges or compliance with permit conditions. The City will provide the Contractor with a list of, the facilities to be visited. The need for and approximate timing of these visits will be determined by the City. b)Administrative duties: Administrative duties may include computer data entry, letter writing, and report generation. Contractor’s computer system shall be IBM PC compatible. The Contractor shall submit all final artwork (if computerized),and reports to the City in format compatible with Microsoft Office for Windows (or WordPerfect for Windows.) Contractor shall also make reasonable efforts to coordinate data management with the RWQCP’s current and future Source Control Management (SCM) database. EXHIBIT B Fee Schedule Team Member Firm Geoff Brosseau Consultant Betsy Elzufon Ashli Cooper Larry Walker Associates Larry Walker Associates Bill Johnson Maggie Johnson Gary Goodemote Jon Gervais Janet Cox Artefact Design Other Direct Costs EIP Associates Uribe & Associates Uribe & Associates Uribe & Associates Consultant Design/Production Coordination Hourly Rate $100 $1oo $80 $85 $90 $90 $60 $85 $1oo $85 Overhead will be charged on all technical and professional subcontracts at the rate of 5 percent. Actual cost LARRY WALKER ASSOCIATES RATE SCHEDULE - Effective January 1, 1998 - June 30, 1998 PERSONNEL Rate - S/hour Larry Walker $160.00 Gil Wheeler $145.00 Tom Grovhoug $145.00 Malcolm Walker $135.00 Robert Smith $120.00 Armand Ruby $120.00 Melissa Thorme $110.00 Betsy Elzufon $100.00 Pamela Barksdale $100.00 Denise Conners $100.00 Claus Suverkropp $ 95.00 Andy Bale $ 95.00 Nimi Mahadevan $ 90.00 Kathryn Walker $ 80.00 Eric Zeigler $ 80.00 Brian Laurenson $ 80.00 Heather Kirschmann $ 80.00 Ashli Cooper $ 80.00 Dean Messer $ 80.00 Michelle Vikupitz $ 70.00 REIMBURSABLE DIRECT COSTS Travel:Local Mileage Transportation Auto rental Fares Room Subsistence (1) - $0.30/mile - actual expense - actual commercial rate - actual expense - actual expense - $35.00 per day Report Reproduction and Copying - actual outside expense - $0.06 per copy, in-house - $0.75 per binding, in-house Blue Prints - $0.78 for 22 x 34 - $0.84 for 24 x 36 - $1.17 for 30 x 42 Special Postage and Express Mail -actual expense (not billed for internally applied postage) Other Direct Costs - actual expense SUBCONTRACTORS - actual expense plus 10% for profit Note: (1) Charged when overnight lodging is required. ASSOCIATES COMPENSATION SCHEDULE SAN FRANCISCO OFFICE Principal I Principal II Senior Associate I Senior Associate II Associate Senior Professional Professional I Professional II Technician I Technician II Technician III Mileage is charged at Photocopies are charged at $ 160/hour $ 150/hour $ 125/hour $ 115/hour $95/hour , $85/hour $75/hour $65/hour $60/hour $50/hour $35/hour $.30/mile $. 15/page Direct costs (i.e., travel, meals, lodging, auto rentals, printing, graphic materials, etc.) and subcontractor fees are subject to a 10% administration charge. 1.This schedule is effective from October 1, 1997 to September 30, 1998, and subject to revision thereafter, Invoices will be submitted by Consultant monthly. Client will notify Consultant, in wridng, of any objections to an invoice within ten (10 days) of the date of invoice. Otherwise, the invoice shall be deemed acceptable by the Client. Amounts indicated on invoices are due and payable immediately upon receip.t. The Client’s account will be considered delinquent if Consultant does not receive full payment within thirty (30) days after the invoice date. A service charge will be applied at the rate of 1.0 percent per month (or the maximum rate allowable by law) to delinquent accounts. Payment thereafter will be applied first to accrued interest and then to the principal unpaid by the CLient. EXPERT TESTIMONY. For situatiom requiring expert testimony, services will be provided at 1.5 times the standard hourly rates listed, with a minimum of four hours. Time spent in preparation and review of testimony will be charged at standard rates. F:~)ATA~FORMS~tATESCH.WPD Uribe & Associates Billing Rates The following is a list of U&A’s time and materials billing rates. Labor Categories Principal Sr. Assoc Engineer/Geologist/l (ydr0geologist Senior Associate Planner Senior Geologist/Hydrogeologist ............ Senior Engineer/Scientist ,,, Senior Planner[project Manager .... Senior Terrestrial Biologist ....... Geologist II ..... Geologist I Engineer II Engineer I Scientist/Planner II Scientist/Planner I Botanist/Biologist II Hour!yRate $120-$150 $100-$130 $90-$110 $90-$110 $90-$110 $90-$110 $80 - $100 $80-$90 $60-$80 $80-$90 $60-$80 $80-$90 $60-$80 $70-$90 Botanist/Biologist I $60 - Technician/Planner $50 - Field Technician/Engineer $40 - Technical Editor $45 - Research Assistant $50 - Production Assistant Word Processor Computer Specialist Special Consultant $80 $70 $60 $65 $75 $35- $50 $45 - $55 $50 - $75 The rates for Special Consultants will be negotiated with the client on a case-by-case basis. Hourly rates for depositions and legal testimony will also be negotiated separately. ¯Labor Charges: Charges for labor include any technical or administrative work performed directly for the client, including engineering and geologic evaluations as well as the preparation of project reports and other project related documents. Actual hourly rates depend on the individual assigned to the project and on the nature of the individual’s project responsibilities, but will be within the range for their laborcategory. Hourly rates to include all wages, indirect costs, general ¯ and administrative expenses, and profit. Charges for services are in increments of one-quarter hour. Time spent in travel in the interest of the client will be charged at the hourly rate except that no more than eight hours of travel time will be charged in any day. Direct Costs: Expenses incurred on behalf of the client, including but not limited to travel costs, meals, lodging, telephone charges, printing, binding, graphics, shipping, computer search, maps and other project related documents, shall be charged at actual cost plus 15 percent for administrative costs. Technical or professional services furnished by a subcontractor, with the client’s approval, shall be billed at an actual cost plus 15 percent for.administrative costs. A Field Equipment Usage Rate Schedule is available upon request. Invoices: Invoices shall be submitted monthly, either as a final or partial billing, and are payable upon receipL Interest of 1.5 percent per month, or the maximum rate allowed by law, is due on accounts not paid within 30 days. f: billrate (in word)/5/1/98 EXHIBIT C ...IO PAACORD...:CERtIFICatE OF LIABILITY INS.URANC o,,_I PRODUCER Insurance by Allied Brokers-I 630 Cowper Street Palo Alto CA 94301 Pat J. Warsh Phon. No. 415-328-1000 INSURED F~xNo. 415-324-1142 Geoff Brosseau 518 Central Avenue Menlo Park CA 940:25 COVERAGES COMPANYA COMPANY B COMPANYc COMPANYD DATE (MM/DDPfy) 07/:21/97 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATIONONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATEHOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND ORALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. COMPANIES AFFORDING COVERAGE The Hartford THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE SEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO :TYPE OF INSURANCE POLICY NUMBER LIMITSLTR, A GENERAL LIABILITY X ~ COMMERCIAL GENERAL LIABILITY ~ CLAIMS MADE ~-~ OCCUR. ~NER’S & CONTRACTOR’S PROT AUTOMOBILE LIABILITY ~ ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON.OWNED AUTOS GARAGE LIABILITY ’ ANY AUTO 57SBAEH0359 57SBAEH0359A POLICY EFFECTIVE POLICY EXPIRATION DATE (MM/DD/YY)DATE (MM/DD/YY) 07/31/97! 07/31/98 07/31/97 07/31/98 , GENERAL AGGREGATE $ :2,0 0 0,0 0 0 PRODUCTS. COMPtOP AGG I$ EXCT.~ZDED PERSONAL & AOV INJURY EACH OCCURRENCE FIRE DAMAGE (A~y one fire) MED EXP (~J~y one person) !$i,000,000 !Sl,000,000 $300,000 $i0,000 COMBINED SINGLE LIMIT BODILY INJURY (Pe~ person} BODILY INJURY (Per acciden|) PROPERTY DAMAGE AUTO ONLY . EA ACCIDENT OTHER THAN AUTO ONLY: EACH ACCIDENT AGGREGATE tEACH OCCURRENCE AGGREGATE [ I , WC STATU- ,OTH-’, ......I,,,TORY L ~ T$ERiEL EACH ACCIDENT I EL DISEASE ¯ POLICY LIMIT ! EL DISEASE. EA EMPLOYEE 07/31/97 07/31/98 ’ bpp $3,600 07/31/97 07/31/98 STRETCH E VARIOUS EXCESS LIABILITY UMBRELLA FORM I OTHER THAN UMBRELLA FORM WORKERS COMPENSATION AND EMPLOYERS’ LIABILITY THE PROPRIETOR]~ INCLPARTN ERSJEXECUTIVE OFFICERS ARE:EXCL OTHER j A Commercial prop. I 57SBAEH0359 incl. loss income )ESCRIPTION OF OPERATIONSILOCATIONSIVEHICLES/SPECIAL ITEMS 3ERTIFICATE HOLDER CITY OF PALO ALTO SUZANNE HEALY 2501 EMBARCADERO WAY PALO ALTO CA 94303 ACORD 25-3 (1195) CITYPAL CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 10._.L_ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY~t~ AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE //,’ ’ ~.// ~ ©ACORD CORPORATION 1988 EXHIBIT D PART III - CONTRACT ADMINISTRATION INSTRUCTIONS AND FORMS PROJECT TITLE:CONSULTANT SERVICES FORPOLLUTION PROGRAMS SECTION 410 PREVENTION Certification of Nondisc.riminatior~ As suppliers of goods or services to the City of Palo Alto, he firm and individuals listed below certify that they do not disciminate in employment with regards to age, race, color, religion, sex, national origin, ancestry, disability, or sexual preference; that they are in compliance with all Federal, State and local directives and executive orders regarding nondiscrimination in employment. Firm:~-_.~.o’~ Title of Officer Signing:. Signature ..../[/ END OF SECTION CITY’OF PALO AI.ToI cERTI’FICA’TION o’F NONDIscRIMINATION RFP #104511 SECTION 410