Adopt Resolution Authorizing the City Manager to Execute a Professional Services Agreement with Nelson/Nygaard Consulting Associates in a Form Approved by the City Attorney.

LIVINGSTON CA / June 03, 2013 —

Meeting Date June 04, 2013

Item #8. Adopt Resolution Authorizing the City Manager to Execute a Professional Services Agreement with Nelson/Nygaard Consulting Associates in a Form Approved by the City Attorney.

Note from TheGardeningSnail: The following are excerpts from the Staff Report and Attachments. If there are any goofs, gaffs, or textual gremlins in the text below, sorry. Copies of the actual pages can be found below the text.

STAFF REPORT

AGENDA ITEM: Adopt Resolution Authorizing the City Manager to Execute a Professional Services Agreement with Nelson/Nygaard Consulting Associates in a Form Approved by the City Attorney.

MEETING DATE: June 4, 2013

PREPARED BY: Jose Antonio Ramirez, City Manager

REVIEWED BY: Jose Antonio Ramirez, City Manager

RECOMMENDATION:

Adopt Resolution authorizing the City Manager to execute a Professional Services Agreement with Nelson/Nygaard Consulting Associates in a form approved by the City Attorney.

BACKGROUND AND DISCUSSION:

Transportation Planning Grant funds were available for planning projects that improve mobility and lead to the planning, programming, and implementation of transportation improvement projects. Grant applications must clearly demonstrate how the proposed transportation planning project promotes federal and/or state transportation planning goals. Grant applications should also incorporate broader goals such as Regional Blueprint and Sustainable Communities.

State Transportation Planning Goals (Source: California Transportation Plau) are:

1. Improve Mobility and Accessibility: Expand the system and enhance modal choices and connectivity to meet the state’s future transportation demands.

2. Preserve the Transportation System: Maintain, manage, and efficiently utilize California’s existing transportation system.

3. Support the Economy: Maintain, manage, and enhance the movement of goods and people to spur the economic development and growth, job creation, and trade.

4. Enhance Public Safety and Security: Ensure the safety and security of people, goods, services, and information in all modes of transportation.

5. Reflect Community Values: Find transportation solutions that balance and integrate community values with transportation safety and performance, and encourage public involvement in transportation decisions.

6. Enhance the Environment: Plan and provide transportation services while protecting our environment, wildlife, historical, and cultural assets.

Federal Transportation Planning Goals are:

1. Support the economic vitality of the metropolitan area, especially by enabling global competitiveness, productivity, and efficiency.

2. Increase the safety of the transportation system for motorized and non-motorized users.

3. Increase the security of the transportation system for motorized and non-motorized users.

4. Increase the accessibility and mobility of people and freight.

5. Protect and enhance the environment, promote energy conservation, improve the quality of life, and promote consistency between transportation improvements and state and local planned growth and economic development patterns.

6. Enhance the integration and connectivity of the transportation system, across and between modes, for people and freight.

7. Promote efficient system management and operation.

8. Emphasize the preservation of the existing transportation system.

Staff, with the assistance of the Local Government Commission, submitted a grant that was funded to study the B Street and Main Street corridors in order to maintain, manage, and enhance the movement of goods and people to spur economic development and growth, job creation, and trade within the City as well as enhance public safety and the security of people, goods, and services while improving quality of life and enhancing the environment. This grant would compliment and provide additional funding for the combined efforts of the California Chapter Congress for New Urbanism and the American Institute of Architects. The attached resolution is required in order to comply with the California Department of Transportation (Caltrans) regulations.

A Request for Proposals was sent out April 16, 2013, with a May 13, 2013, deadline date. The City of Livingston received a total of three (3) proposals. An Evaluation Committee deliberated and found that Nelson/Nygaard Consulting Associates best fit the qualifications and desired outcome goals for this project and the City.

ENVIRONMENTAL ANALYSIS:

This action is not a Project pursuant to the California Environmental Quality Act ("CEQA") Section 21065.

FISCAL IMPACT:

A 10% match is required of$5,496.10 from the total cost of$54,961.00. Match funding will come from the Public Works General Fund.

ATTACHMENTS:

1. Resolution No. 2013-_, a Resolution authorizing the City Manager to execute a Professional Services Agreement with Nelson/Nygaard Consulting Associates in a form approved by the City Attorney.

2. Professional Services Agreement with Nelson/Nygaard Consulting Services.

RESOLUTION 2013-

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH NELSON/NYGAARD IN A FORM APPROVED BY THE CITY ATTORNEY

WHEREAS, the City Council of the City of Livingston is eligible to receive Federal and/or State funding for certain transportation planning related plans, through the California Department of Transportation; and

WHEREAS, the City has been awarded a $100,000 grant through the California Department of Transportation; and

WHEREAS, the $100,000 grant is dedicated for transportation planning projects; and

WHEREAS, a City match of$5,496.10 will be committed from the Public Works General Fund; and

WHEREAS, Nelson/Nygaard Consulting Associates has been selected to perform the professional services outlined on the grant requirements; and

WHEREAS, the City Council wishes to delegate authorization to the City Manager to execute the agreement in a form approved by the City Attorney.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Livingston authorizes the City Manager to execute the agreement with Nelson/Nygaard Consulting Services in a form approved by the City Attorney.

Passed and adopted this 4th day of June, 2013, by the following vote: AYES:

NOES:

ABSENT:

ABSTAIN:

clip_image001[2]

Rodrigo Espinoza, Mayor of the City of Livingston

ATTEST:

I, hereby certify that the foregoing Resolution was regularly introduced, passed, and adopted at a regular meeting of the City Council of the City of Livingston, this 4th day of June, 2013.

clip_image002Antonio Silva, City Clerk of the City of Livingston

CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF LIVINGSTON AND NELSON/NYGAARD CONSULTING ASSOCIATES

THIS AGREEMENT for consulting services is made by and between the City of Livingston ("City") and Nelson/Nygaard Consulting Associates ("Consultant") as of June 4, 2013.

Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.

Section 2. TERM. The term of this Agreement shall begin on the date first noted above and shall end upon termination of the Agreement by either the City or Consultant, as provided for in Section 10.1.

Section 3. STANDARD OF PERFORMANCE. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a substantial, first-class manner and shall conform to the standards of quality normally observed by a person practicing in Consultant’s profession.

Section 4. HOURS AND COMPENSATION. City hereby agrees to pay Consultant the sums outlined in Consultant’s cost proposal attached herein as Exhibit B.

4.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date, which describe the work performed by Consultant. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.

4.2 Reimbursable Expenses. Direct costs for commercial services (e.g., printing, on-site internet and telephone expenses, materials and supplies) are proposed to be billed as direct reimbursement costs.ton.

4.3 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.

Section 5. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein.

City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be at the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities.

Section 6. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure insurance (commercial general insurance, automobile liability insurance, workers compensation and professional liability insurance) against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof satisfactory to City of such insurance satisfactory in all respects to the City prior to providing serviced under this Agreement. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be Consultant’s responsibility. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution.

Section 7. INDEMNIFICATION. To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.8), Consultant shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.

Section 8. STATUS OF CONSULTANT. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. City shall have the right to control Consultant only insofar as the results of Consultant’s services rendered pursuant to this Agreement; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement.

Section 9

9.1

9.2

9.3

9.4

9.5

LEGAL REQUIREMENTS.

Governing Law. The laws of the State of California shall govern this Agreement.

Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant’s failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract.

Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.

Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.

Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.

Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.

Section 10. TERMINATION AND MODIFICATION.

10.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.

Consultant may cancel this Agreement upon 30 days’ written notice to City and shall include in such notice the reasons for cancellation.

In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.

10.2 Amendments. The parties may amend this Agreement only by a writing signed by all the parties.

10.3 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.

10.4 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.

Section 11. KEEPING AND STATUS OF RECORDS.

11.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties.

11.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.

11.3 Inspection and Audit of Records. Any records or documents that Section 10.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.

Section 12 MISCELLANEOUS PROVISIONS.

12.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.

12.2 clip_image001[4]Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Merced or in the United States District Court for the Eastern District of California.

12.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.

12.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.

12.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.

12.6 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.

Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq.

Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California.

12.7 Contract Administration. This Agreement shall be administered by the City Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.

12.8 Notices. Any written notice to Consultant shall be sent to: Paul Jewel

CEO/Principal

Nelson/Nygaard Consulting Associates

116 New Montgomery Street San Francisco, CA 94105

Any written notice to City shall be sent to: Jose Antonio Ramirez

City Manager

City of Livingston

1416 C Street

Livingston, CA 95334

12.9 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit B, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first set forth above, which date shall be considered by the Parties to be the effective date of this Agreement.

CITY OF LIVINGSTON CONSULTANT

clip_image002[4]clip_image003Jose A. Ramirez, City Manager

Paul Jewel, CEO/Principal

Date: _ Date: _

Attest:

clip_image004Antonio Silva, City Clerk

Date: _

Approved as to Form:

clip_image005Jose M. Sanchez, City Attorney

Date: _

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