91-022 Marfam Computer Solutions 91-022 MARFAM COMPUTER SOLUTIONS
City Hall
10300 Torre Avenue
Cupertino,CA 95014-3202
Telephone: (408)777-3223
i t i FAX: (408)777-3366
OFFICE of TI1E UTY CLERK
July 26, 1994
Marfam Computers
410 Ariel Drive
San Jose, California 95123
Enclosed for our files is one (1) copy of the agreement by and between the City of Cupertino and
Marfam Computers, which has been fully executed by City officials.
If you have any questions, please contact the Department of Parks and Recreation.
Sincerely,
KIM MARIE SMITH
CITY CLERK
KS/cs
Encl.
cc: Director of Parks & Recreation
1-'Nrh'rl yin f icPck'i'1/'rt/n
ACCOUNT NO. 110-5800-761
CONTRACT AMOUNT $22_500
PURCHASE ORDER NO. o;z7)-7
AGREEMENT
THIS AGREEMENT, made and entered into this IM day of , 1994 by and
between the CITY OF CUPERTINO, a municipal corporation of California, hereinafter
referred to as "CITY",and MARF M COMPUTERS,A CO ERACTOR with offices
at 410 Ariel Drive,S NN JOS1E.CA 95123,hereinafter referred to as"CONTRACTOR";
WITNESSETH:
WHEREAS, CITY desires to retain services in conjunction with COMPUTER
CONSULTANT FOR CITY;and
WHEREAS, CITY desires to engage CONTRACTOR to provide these services by
reason of its qualifications and experience for performing such services, and
CONTRACTOR has offered to provide the required services on the terms and in the
manner set forth herein;
NOW,THEREFORE, in consideration of their mutual covenants, the parties hereto
agree as follows:
1. DEFINITIONS.
(a) The word "City" as used in this agreement shall mean and include
all the territory lying within the municipal boundaries of the City of Cupertino,
California, as presently existing, plus all territory which may be added thereto during the
term of this agreement by annexation or otherwise.
(b) The term "City Manager" shall mean the duly appointed City
Manager of the City of Cupertino,California,or his designated representative.
(c) The term "City Attorney" shall mean the duly appointed City
Attorney of the City of Cupertino,California,or his designated representative.
(d) The term "City Clerk" shall mean the duly appointed City Clerk of
the City of Cupertino; California,or his designated representative.
2. PROJECT COORDINATION.
(a) City. The City Manager shall be representative of CITY for all
purposes under this agreement. BERT I N ISKMCH hereby is designated as the
PROJECT MANAGER for the City Manager, and he shall supervise the progress and
execution of this agreement.
(b) Contractor. CONTRACTOR shall assign a single PROJECT
DIRECTOR to have overall responsibility for the progress and execution of this
agreement for CONTRACTOR. JOHN MAHLER hereby is designated as the
PROJECT DIRECTOR FOR CONTRACTOR. Should circumstances or conditions
subsequent to the execution of this agreement require a substitute PROJECT DIRECTOR
for any reason, the PROJECT DIRECTOR designee shall be subject to the prior written
acceptance and approval of the PROJECT MANAGER.
3. DUTIES OF CONTRACTOR.
(a) Services to be Furnished. CONTRACTOR shall provide all
specified services as set forth below:
(I)Provide computer consultant to maintain and assist in computers,
rinterc,software,accessorize and networking performan=
(b) haws to be Observed. CONTRACTOR shall:
(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
services to be performed by CONTRACTOR under this agreement;
(2) Keep itself filly informed of all existing and future federal, state,
and local laws, ordinances, regulations, orders, and decrees which may affect those
engaged or employed under this agreement, any materials used in CONTRACTOR's
performance under this agreement,or the conduct of the services under this agreement;
(3) At all times observe and comply with, and cause all of its
subcontractors and employees, if any, to observe and comply with, all of said laws,
ordinances,regulations,orders,and decrees mentioned above;
(4) Immediately report to the PROJECT MANAGER in writing any
discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders,
and decrees mentioned above in relation to any plans, drawing, specifications, or
provisions of this agreement.
(c) Release of Reports and Information. Any reports, information, data,
or other material given to, or prepared or assembled by, CONTRACTOR or its
subcontractors, if any, under this agreement shall be the property of CITY and shall not
be made available to any individual or organization by CONTRACTOR or its
subcontractors, if any, without the prior written approval of the City Manager.
(d) Copies of Reports and Information. If CITY requests additional
copies of reports, drawings, specifications or any other material which CONTRACTOR
is required to furnish in limited quantities as part of the services under this agreement,
CONTRACTOR shall provide such additional copies as are requested and CITY shall
compensate CONTRACTOR for the costs of duplicating of such copies at
CONTRACTOR'S cost.
4. COMPENSATION. For the full performance of the services described
herein by CONTRACTOR, CITY shall pay CONTRACTOR a total sum of TwENTv-
Two THOUSAND FIVE HUNDRED DOLLABs ($22,500,00), payable upon submission by
CONTRACTOR of its itemized billings in triplicate.
5. DUTIES OF CITY. City shall provide all specified services as set forth
below:
(a)All information available regarding computer and printer,
6. TERM. This agreement shall commence on DULY 1, 1994 and shall
continue in full force and effect until terminated as provided herein.
7. TEMPORARY SUSPENSION. The City Manager shall have the authority
to suspend this agreement, wholly or in part, for such period as he deems necessary due to
unfavorable conditions or to the failure on the part of the CONTRACTOR to perform any
provision of this agreement.
8. E.XTENSION OF TERM. In the event that the services called for under this
agreement are not completed within the time specified above, the City Manager shall
have the option to extend the time for compl?lion. This paragraph does not preclude the
recovery of damages for delay by either party.
9. SUSPENSION.TERMINATION.
(a) Right toS ispend or Terminate. Either party may suspend or
terminate this agreement for any .•eason by giving thirty (30) days written notice. Upon
receipt of such notice, CONTRACTOR shall immediately discontinue his performance
under this agreement.
(b) Payment. Upon such suspension or termination, CONTRACTOR
shall be paid for all services actually rendered to CITY to the date of such suspension or
termination; provided, however, if this agreement is suspended or terminated for fault of
CONTRACTOR, CITY shall be obligated to compensate CONTRACTOR only for that
portion of CONTRACTOR'S services which are of benefit to CITY.
(c) Return of Materials. Upon such suspension or termination,
CONTRACTOR shall turn over to the City Manager immediately any and all copies of
studies, sketches, drawings, computations, and other data, whether or not completed,
prepared by CONTRACTOR or its subcontractor,, if any, or given to CONTRACTOR or
its subcontractors, if any, in connection with this agreement. Such materials shall
become the permanent property of CITY. CONTRACTOR, however, shall not be liable
for CITY's use of incomplete materials or for CITY's use of complete documents if used
for other than the project contemplated by this agreement.
3
10.jNSPECTION. CONTRACTOR shall fumish CITY with every reasonable
opportunity for CITY to ascertain that the services of CONTRACTOR are being
performed in accordance with the requirements and intentions of this agreement. All
work done and all materials furnished, if any, shall be subject to the PROJECT
MANAGER's inspection and approval. The inspection of such work shall not relieve
CONTRACTOR of any of its obligations to fulfill its agreement as prescribed.
11.INDEPENDENT JUDGMENT. Failure of CITY to agree with CONTRACTOR'S
independent findings, conclusions, or recommendations, if the same are called for under
this agreement, on the basis of difference in matters of judgment shall not be construed as
a failure on the part of CONTRACTOR to meet the requirements of this agreement.
12.ASSIGNMENT; SUBCONTRACTORS;EMPLOYEES.
(u) ssignrnent. Both parties shall give their personal attention to the
faithful performance of this agreemen:and shall not assign, transfer, convey, or otherwise
dispose of this agreement or any right, title, or interest in or to the same or any part
thereof without the prior written consent of the other party, and then only subject to
such terms and conditions as the other party may require. A consent to one assignment
shall not be deemed to be a consent to any subsequent assignment. Any assignment
without such approval shall be void and, at the option of the other party, shall terminate
this agreement and any license or privilege gra►lted herein. This agreement and any
interest herein shall not be assignable by operation of law without the prior written
consent of the other party.
(b) Subcontractors: Employees. CONTRACTOR shall be responsible for
employing or engaging all persons necessary to perform the services of CONTRACTOR
hereunder. No subcontractor of CONTRACTOR will be recogni-ed by CITY as such;
rather, all subcontractors are deemed to be employees of CONTRACTOR, and it agrees
to be responsible for their performance. CONTRACTOR shall give its personal attention
to the fulfillment of the provisions of this agreement by all of its employees and
subcontractors, if any, and shall keep the work under its control. f any employee or
subcontractor of CONTRACTOR fails or refuses to carry out the provisions of this
agreement or appears to be incompetent or to act in a disorderly or improper manner, he
shall be discharged immediately from the work under this agreement on demand of the
PROJECT MANAGER.
13. NOTICES. All notices hereunder shall be given in writing and mailed,
postage prepaid, by certified mail,addressed as follows:
TO CITY: Office of the City Clerk
10300 Torre Avenue
Cupertino, CA 95014
TO CONTRACTOR: Attention of the PROJECT DIRECTOR
at address of CONTRACTOR
recited above.
4
i 4. INTEREST OF CONT AACTQR. CONTRACTOR, covenants that it
presently has no interest, and shal! not acquire any interest, direct or indirect, financial or
otherwise, which would conflict in any manner or degree with the performance of the
services hereunder. CONTRACTOR further covenants that, in the performance of this
agreement, no subcontractor or person having such an interest shall be employed.
CONTRACTOR certifies that no one v ho has or will have any financial interest under
this agreement is an officer or employee of CITY. It is expressly agreed that, in the
performance of the services hereunder, CONTRACTOR shall at all times be deemed an
independent contractor and not an agent or employee of CIT;'.
15. INDEMNIJY. CONTRACTOR hereby agrees to indemnify and save
harmless CITY, its officers, agents,and employees of and from:
(a) Any and all claims and demands which may be made against CITY, its
officers, agents, or employees by reason of ,,ny injury to or death of any person or
damage suffered or sustained by any person or corporation caused by, or alleged to have
been caused by, any act or omission, negligent or otherwise, of CONTRACTOR or any
subcontractor under this agreement or of CONTRACTOR'S or any subcontractor's
employees or agents;
(b) Any and all damage to or destruction of the property of CITY
its officers,agents, or employees occupied or used by or in the care,
custody, or control of CONTRACTOR, or in proximity to the site of CONTRACTOR'S
work, caused by ary act or omission, negligent or otherwise, of CONTRACTOR or any
subcontractor under this agreement or of CONTRACTOR'S or any subcontractor's
employees or agents.
(c) Any and all claims and demands which may be made against CITY,
its officers, agents, or employees by reason of any injury to or death of or damage
suffered or sustained by any employee or agent of CONTRACTOR or any subcontractor
under this agreement, however caused, excepting, however, any such claims and demands
w' ich are the result of the sole negligence or willful misconduct of CITY, its officers,
agents, or employees;
(d) Any and all claims and demands which may be made against CITY, its
officers, agents, or employees by reason of any infringement or alleged infringement of
any patent rights or claims caused or alleged to have been caused by the use of any
apparatus, appliance, or materials furnished by CONTRACTOR or any subcontractor
under this agreement; and
(e) Any and all penalties imposed or damages sought on account of the
violation of any law or regulation or of any term or condition of any permit.
CONTRACTOR, at its own cost,expense, and risk, shall defend any and all
suits, actions, or other h..,;al proceedings that may be brought or instituted by third
persons against CITY, its officers, agents, or employees on any of the above claims or
demands of such third persons, or to enforce any of the above penalties, and pay and
satisfy any judgment or decree that may be rendered against CITY, its officers, agents, or
employees in any such suit,action,or other legal proceedings.
5
16. W_ ORKERC¢MPENSATION. CONTRACTOR certifies that it is aware of the
provisions 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 it certifies that it will comply with such
provisions before commencing the performance of the work of this agreement.
17.INSURANCE. CONTRACTOR, at its sole cost and expense, shall obtain and
maintain in full force and effect throughout the entire term of this agreement the
insurance coverage of at least a"B" rating as determined in accordance with the insurance
industry standard, insuring not only CONTRACTOR, but also (with the exception of
workers'compensation and employer's liab;!ity insurance), CITY, its officers,agents, and
employees, and each of them with respect to activities and services performed by
CONTRACTOR for or on behalf of CITY under the provisions of this agreement.
Certificates of such insurance, preferably on the forms provided by CITY,
shall be filed with CITY concurrently with the execution of this agreement or, with
CITY's approval, within ten (10) days thereafter. Said certificates shall be subject to the
approval of the City Attorney and shall contain an endorsement stating that said insurance
is primary coverage and will not be canceled or altered by the insurer except after filing
with the City Clerk thirty (30) days' written notice of such cancellation or alteration. and
that the City of Cupertino is named as an additional insured. Current certificates of such
insurance shall be kept on file at all times during the term of this agreement with the City
Clerk.
18.AGEEEMENT BINDING. The terms, covenant, and conditions of this agreement
shall apply to,and shall bind,the heirs, successors,executors, administrators,assigns, and
subcontractors of both parties.
19. WAIVERS. The waiver by --ither party of any breach or violation of any term,
covenant, or condition of this agreement or any provision, ordinance, or law shall not be
deemed to be a waiver of any other term, covenant, condition, ordinance, or law or of any
subsequent breach or violation of the same or of any other term, covenant, condition,
ordinance, or law. The subsequent acceptance by either party of any fee or other money
which may become due hereunder shall not be deemed to be a waiver of any preceding
breach or violation by the other party of any term, covenant, or condition of this
agreement or of any applicable law or ordinance.
20. COSTS AND ATTORNEYS FEES. The prevailing party in any action brought to
enforce the terms of this agreement or arising out of this agreement may recover its
reasonable costs and attorneys' fees expended in connection with such an action from the
other pa,,-ty.
21. NONDISCRIMINATION. No discrimination shall be made in the employment of
persons under'this agreement because of the race, color, national origin, ancestry, religion
or sex of such person. If the value of this agreement is, or may be, Five Thousand
Dollars ($5,000) or more, CONTRACTOR agrees to meet all requirements of the
Cupertino Municipal Code pertaining to nondiscrimination in employment and to
complete and submit the "Compliance Report - Nondiscrimination Provisions of City of
Cupertino Contracts"on the form furnished by CITY.
6
If CONTRACTOR 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 agreement, it shall thereby be found in
material breach of this agreement.
Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or
in part, or to deduct from the amount payable to CONTRACTOR the sum of Twenty-five
Dollars ($25) for each person for each calendar day during which said person was
discriminated against, as damages for said �reach of contract, or both. Only a finding of
the State of California Fair Employment Practices Commission or the equivalent federal
agency or officer shall constitute evidence of a violation of contract under this paragraph.
If CONTRACTOR is found in violation of the nondiscrimination provisions
of this agreement or the applicable affirmative action guidelines pertaining to this
agreement, CONTRACTOR shall be found in material breach of this agreement.
Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or
in part, or to deduct from the amount payable to CONTRACTOR the sum of Two
Hundred Fifty Dollars ($250) for each calendar day during which CONTRACTOR is
found to have been in such noncompliance as damages for said breach of contract, or
both.
22.AGR •EMENT CONTAINS ALL UNDERSTANDINGS. This 'ocument
represents the entire and integrated agreement between CITY and CONTRACTOR and
supersedes all prior negotiations, representations, or agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and
CONTRACTOR. All provisions of this agreement are expressly made conditions. This
agreement shall be governed by the laws of the State of California.
IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this
agreement the day and year first above written.
CITY F P RTINO CONTRACTOR
L,vn
rt 1-41isko is ,Director of Public Works ,/ ame
ATTEST
Address
/
Kim Marie Smith,City Clerk Telephone
APPROVED AS TO FORMS [
Social Security No.or Tax I.D.No.
Charles T.Kilian,City Attorney
7
AGREEMENT 942-4400-731
Ao CITY OF CUPERTINO
& a; P.O. Box 580
Cupertino, CA 95015
252-4505 NO.
BY THIS %GREEMENT made and entered into on the 23RD day of DULY 19 91
by and between the CITY OF CUPERTINO(Hereinafter referred to as CITY)and
Name (1)_ MARFMi COMPUTER SOLUTIONS (2)
Address 6351 ALMADEN ROAD City SAN JOSE Zip 95120 Phone 997— 0
(Hereinafter referred as CONTRACTOR), in consideration of their mutual covenants,the parties hereto agree as follows:
CONTRACTOR Shall provide or furnish the following specified services and/or materials:
PERSONAL COMPUTER HARDWARE MAINTENANCE AND SOFTWARE SUPPORT.
EXHIBITS:The following attached exhibits hereby are made part of this Agreement:
SEE ATTACHED. RETAINER OF $7500.00 TO BE PAID IN FULL, 7-26-91.
TERMS The services and/or materials furnished under this Agreement shall commence on 7-23-91
and shall be completed before 7-1-92
COMPENSATION For the full performance of this Agreement,CITY shall pay CONTRACTOR:
GENERAL.TERMS AND CONDITIONS
Hold Harmless. Contractor agrees to save and hold harmless the City, its officers,agents and employees from any and
all damage and liability of every nature, including all costs of defending any claim,caused by or arising out of the per.
formance of this agreement.City shall not be liable for acts of Contractor in perform-Ing services described herein.
Insurance. Should the City require evidence of insurability Contractor Shall file with City a Certificate of Insurance
before commencing any services under this agreement.Said Certificate shalt be subject to the approval of City's
Director of Administrative Services.
Non-Disci•imination. No discrimination shall be made in the employment of persons under this agreement because of
the race,color, national origin,ancestry,religion or sex of such person.
Interest of Contractor. It is understood and agreed that this agreement is not a contract of employment in the sense
that the relation of master and servant exists between City and undersigned. At all times Contractor shall be deemed to
be an independent contractor and Contractor is not authorized to bind the City to any contracts or other obligations in
executing this agreement.Contractor certifies that no one who has or will have any financial interest under this
agreement is an officer or employee of City.
Changes. This agreement shall not be assigned or transferred without the written consent of the City.No changes or
variations of any kind are authorized without the written consent of the City.
CONTRACT CO-ORDINATOR and representative for CITY shall be:
NAME LAUNA CASTILLO DEPARTMENT FINANCE
This Agreement shall become effective upon its execution by CITY,in witness thereof,the parties have executed this
Agreement the day and year first.written above.
CONTRA CITY of �RTINO-
By 7 By
l'r
it, Title �,�
c. Sec.#
APPROVALS
ff
Depart t Head J Date
f' T City Date
-7-z.1, q f y f
White-City Clerk Copy preen-Finance Canary-Contraator'e Copy Pink-Receiving Copy Goldenrod-Department Copy
MARFA_%4 MAINTENANCE RETAINER AGREEMENT r
Terms and Condtitons
V h $ ga
1. City of Cupertino,hereinafter referred to as "CITY"has certain and unspecified needs for computer hardware
maintenance and support for certain software. MarFam Computer Solutions, hereinafter referred to as
"MarFam"desires to meet those needs.
II. MarFam will provide City with all necessary personal computer hardware maintenance and software support
needs upon City providing MarFam with a retainer of seven thousand, five hundred dollars ($7,500.0)to
cover the period of July 1, 1991 through June 30, 1992. Said retainer to be a deposit against future billings for
services rendered.
Ill. MarFam agrees to provide service response within 4 hours. Response time is defined as the time that may
expire from the initial call for service and the advice by MarFam personnel as to when service will be
executed. Software support is defined as providing general -istructions and answers on procedural program
activities and,specifically,does not include updates to newer versions
IV. MarF.un will provide City a written work order indicating who requested service, machine or station service
rendered to, nature of the service provided and recommendations for future service(if any). Service provided
over phone shall be followed up by facsimile indicating the same information.
V. MarFam shall notify City upon (1) sixty (60) days prior to the anniversary date of the retainer advising the
balance of the retainer or(2)when the retainer balance is less than$300.00.
VI. City may elect to fund an additional retainer or to allow the anniversary date to pass. MarFam shall retain any
funds left on the retainer upon the anniversary or will provide additional service to City until either the
anniversary date shall pass or the balance of the retainer is exhausted.
VIL MarFam agrees to discount service during the time of this retainer by fifty per-cent (50%) against the
prevailing rate for service.
V Ill.MarFam will notify City no less than 30 days prior to increasing the prevailing rate for service b� MarFam.
Current rate is$125.00 for onsite service,charged portal-to-portal and$75.00 per hour for depot service. Pick
up and delivery is charged at$45.00. Phone consultation is charged in .fifteen minute increments at the rate of
$75.00 per hour.
IX. City may cancel this agreement at any time by written letter delivered through U.S, Mail to MarFam at 6351
Almaden Road in San Jose, California 95120-2803. MarFam shall retain any balance remaining on the
retainer in such a case.
X. MarFam may terminate this agreement by returning any unused balance of the retainer to City. Such
termination to be considered effective on date of receipt of funds by City.
Agreed to this 7 Day of 1991.
by: by:
John R. Mader
Name do Title Typed/printed Name dt Tide Typed/pri-_'A
MarFam Computer Solutions y of Cupertiao,Califoini+.
--------------
I N V O I C E
----------- Invoice # 910262
MarFam Computer Solutions Customer # 2524505
6351 Almaden Road Invoice Date 07/23/91
SAn Jose, CA, CA 95120 USA F.O.E. SJ
(408)997-0140 Page # 1
BILL TO: SHIPPED TO:
Accounts Payable SAME
City of Cupertino
10300 Torre Avenue
Cupertino, CA, 95014
----------------------------
Salesperson PO/Number Ship Via ShipDate Terms
--------
JRM MRetainerAgmnt MF 07/23/91 NET 5
----------------------------------------------------------------------------------
Ordered Shipped Description Unit Price Tax Extension
---------------------------------------------------------------------------------
1 1 On Site Labor/Service 7500.00 7,500.00
Maintenance retainer Agreement
--------------------------------------------------------------------------------
Sale Total 7, 500.00
15% RESTOCKING FEE ON RETURNS! -
RETURNS MUST BE AUTHORIZED! - Sales Tax 0.00
Thank you for Buying from MarFam Freight 0.00
PLEASE PAY TOTAL AMOUNT BY 07/31/91 TOTAL 7,500.00
Cit4 of Cu pe rti"o
P.O.Box 580
10300 Torre Avenue
Cupertino,California 95014 Cupertino,California 95015
Telephone: (408) 252-4505
DEPARTMENT Of THE CITY CLERK
July 29, 1991
MarrFam Ctgputer Solutions
6351 Alamden Road
San Jose, California 95120
We are enclosing to you for your files and information one (1) copy of the
Alit by and between the City of 04x-x vino and MarFam Ca Vuter
Solutions which has been fully executed by City Officials.
Your agreement shall begin on 07/23/91 and shall be cmpleted before
07/01/92.
Thank you for your services.
Sincerely,
fiL�.l
LiY ,J�IUS
CITY CLERK
DC/cs
encl.
cc: Department of Finance
AQootIldr M. V"'7Lo f
COfflRA= RMW
Ft BE mm W. I/
ALMMIUM
IMS AGRWUW, made and entered into this IOM day of ,
nm by and between the CITY of CUPER m, a municipal corparatic►n of
W nia, hereinafter referred to as "Cl'i'Y",, and
CMIHOW1 lit with offices at 329 CgPM IJW, -W JM# CA 95123,
here4nafter referred to as "CO?ACMR"; -
W I T N E S S E T H:
MMZMS, CITY desires to retain services in conjunction with
PM C3*19C; and
WHEREAS, CIT°5[ desires to engage CUOnRA M to provide these services
by reason of its qualifications and experience for performing such
services, and C=P CrM has offered to provide the required services on
the terms and in the manner set forth herein;
Now, 7wtE w, in consideration of their mutual covenants, the
parties hernt:o age as follows:
1. DEFINIMCNS.
(a) The word "City" as used in this agreement shall mean and
include all the territory lying within the municipal boundaries of the
City of Cupertino, California, as presently existing, plus all territory
which may be added thereto during the term of this agreement by annexation
or otherwise.
(b) The term "City Manager" shall mean the duly appointed City
Manager of the City of Cupertino, California, aL his designated
representative.
(c) The term "City Attorney" shall mean the duly appointed City
Attorney of the City of Cupertino, California, or his designated
representative.
(d) The term "City Clerk" small mean the duly appointed City
Clerk of the City of Cupertino, California, or his designated
represer:'tative.
2. PROLT. )CT C XMINAnCK.
(a) The City Manager shall be restive of CITY for
all purposes under this ac t. Jo VL9K VYCH hereby is
designated as the P"E80►= mw= for the City Manages, and he shall
Supervise the progress and execution of this agreement.
-z-
(b) Contractor. CWIRAMM shall rssign a single PRO7F)eT
DIRECTCR to have overall responsibility for the progress and execution of
this aft for C HnU CM. J= NNREAR hereby is designated as the
PRfJ►7FX'I' DIF== FUR COfffRACrCR. Should circumstances or conditions
subsequent to the execution of this agreement require a substitute PFDTRCT
DER for any reason, the PRO► Wr DIRPCXR designee shall be subject to
the prior written acceptance and approval of the PRWBCT MX4A t.
3. DUrIEs OF CORniACMR.
(a) Services to be FLrnished. COATI RACIOR shall provide all
specified services as set forth below:
(1)amide computer aomiltant to x aintain and assist in
CRUM • FK4ff_1 She, sarles and nebmrkiM
I
(b) Laws to be observed. COMIRA.CICR :ball:
(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 services to be performed by CCNTRACICIR under
this agreement;
(2) Keep itself fully informed of all existing and future
federal, state, and local laws, ordinances, regulations, orders, and
decrees which may affect those engaged or employed under this agreement,
any materials used in CONTRACICR's performance under this aunt, or
the ccmduct of the services under this agreement;
(3) At all times observe and comply with, and cause all of its
subcontractors and employees, if any, to observe and comply with, all of
said laws, ordinances, regulations, orders, and decrees mentioned above;
(4) Immediately report to the PRWBCT MMAGEt in writing any
discrepancy or inconsistency it discovers in said lawns, ordinances,
regulations, orders, and decrees mentioned above in relation to any plans,
drawing, specifications, or provisions of this agreement.
(c) please of Reports and Information. Any reports,
information, data, or other material given to, or pared or assembled
by, CONMCIUR or its subcontractors, if any, under this agent shall
be the property of CITY and shall not be made available to any individual
or organization by OONTRACIt3R m its subcontractors, if any, without the
prior written approval of the City Manager.
(d) Cbpies of Reports and Information. If CITY requests
additional copies of reports, drawings, specifications or any other
material which CONTRACPCR is required to furnish in limited quantities as
part of the services under this agreement, CWMACICR shall provide such
additional copies as are requested and CITY shall oau¢ensate CACTO(R
for the oasts of duplicating of such copies at OONTRAC IM S cost.
-2-
4. COMPENSATICN. Foot the full performaroe of the services described
herein by CMM ."lM, CITY shall pay CONTdAC-XM a total sum of
FYI DMZAW (g9�375),payable upon
m,,Mission by CONIRACIM of its itemized billings in triplicate.
5. DUTIES OF CITY. City shall provide all specified service as set
forth below:
(a) AU irdnation available lable ragapdiM ccmqxAw and ,
6. TERM. This agreement shall commence on PSHRMW 1, 1994 and
shall corn rnie in full force and efffeet until terminates as wovided
herein.
7. T.00RARY SUSPWSICN. The City Manager shall have the authority
to suspend this- agreement, wholly or in part, for such period as he deems
necessary due to unfavorable corriitiens or to the failure on the part of
the CONTRA 7M to perform any provision of this agreement.
8. EXTENSICN OF TERM. In the event that the services called for
under This acjrvtemerTt are not completed within the time specified above,
the City Manager shall have the option to extend the time for completion.
This paragraph does not preclude the recovery of damages for delay by
either party.
9. SUSPENSION; Z'E IEMCN.
(a) Rl�it to S4.spend or Tiermi,nate. Either party may sty or
terminate this agreement for any reason by giving thirty (30) da.ys written
notice. Upon receipt of such notice, CONTRACII?R shall immediately
discontinue his performance under this agreement.
(b) Upon such suspension or te--urination, CONTRACIUR
stall be paid for all :services actually rendered to CITY to the date of
such suspension or termination; provided, how--✓ez, if this agreement is
suspended or terminated for fault of CMIRACICR, CITY shall be obligated
to compensate CONTRACDOR only for that portion of CONTRACPOR'S services
which are of benefit to CITY.
(c) Return of Materials. Upon such suspension or termination,
CON RACICR shall turn over to the City Manager immediately any and all
copies of studies, sketches, drawings, eamputations, and other data,
whether or not completed, prepared by CON RACMR or its subcontractors, if
any, or given to CONTRACYL''i2 or its maxxntractors, if any, in connection
with this agreement. Such: materials shall become the permanent property
of CITY. OWMCICR, !-"4ever, shall not be liable for CTTY's use of
incomplete materials or for CITY's use of Clete documents if used for
other than the project eontenplated by this agreement.
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10. IN"T?EMCN. OQNIRACTOR shall fuini.sh. CITY with every reasonable
oppar txuuty for CITY to ascertain that the services of CQUMCIOR are
being performed in acoortWm with the s and intentions of this
�. All work dam and all materials furnished, if any, shall be
subje:.t to the PR+.C1M= °s inspection and approval. The inspection
of such work shall riot relieve "LOR of any of its obligations to
fulfill its agreement as prescribed.
11. INDEPENDENr 3UDQ+ERr. Failure of CITY to ar-ee with OONTRACTCR'S
independent firdxngs, coalusicns, or raxamendations, if the same are
called for under this agreement, on the basis of difference in matters of
judgment shall not be construed as a failure on the part of. CWMCiOR to
meet the requirements of this agreement.
12. ASSI( ; ; EMPLOYEES.
(a) Assignment. Both parties shall give their personal
attention to the faithful performance of t1us agreement and shall not
assign, transfer, =wey, c*r otherwise dispose of this agreement or any
right, tit.Le, or interest in or to t m same or any part thereof without
the prior written consent of the other party, and then only embject to
such terms and conditions as the other party may recraire. A consent to
one assignment shall not be deemed to be a consent to any subsequent
assignment. Any assignment without such approval shall be void and, at
the option of the other party, shall terminate this agreement and any
license cr privilege granted herein. This agreement and any interest
herein shall not be assignable by operation of law without the prior
written consent of the other party.
(b) Suboontractors; Ehployees. CCMRACPOR shall be responsible
for employing or engaging all persons necessary to perform the services of
CMTIRACTOR hereunder. No subcontractor of OON RACIOR will be recognized
by CITY as such; rather, all subcontractors are deemed to be employees of
COATI'RACIOR, and it agrees to be responsiblF for their performance.
CONI'RACICR shall give its personal attention t.o the fulfillment of the
provisions of this agreement by all of its employees and subcontractors,
if any, and shall keep the work under its control. If any employee or
subcontractor of OMMACIOR fails or refuses to carry out the provisions
of this agreement or appears to be inocapetem or to act in a disorderly
or improper mariner, he shall be discharged immediately from the work under
this agreement on demand of the PRa7ECr MANAGM.
13. NOTICES. All notices hereunder shall be given in writing and
mailed, postage prepaid, by certified mail, addressed as follows:
TO CITY: Office of the City Clerk
10300 Torre Avenue
Cupertino, CA 95014
To CONSRACIOR: Attention of the PRW=
DIREMUR at the address of
CONIRtACIM recited above.
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14. DrffWr OF OMRACICR. C%nRkCIC}R coveruarut s that it presently
has no iruFerest, and shall rat acquire any interest, direct or indirect,
financial or. otherwise, which would conflict in any manner or degree with
the performance of the services hereunder. CACICXR further covenants
that, in the performance of this agreement, no subcontractor or person
having such an interest shall be employed. CONrRACIC)iR certifies that no
one who has or will have any financial ingest under this agreement is an.
offioar or employee of C=Y. It is expressly agreed that, in the
performance of the services hereunder, CCNTRACIM shall at all times be
deemed an independent contractor and not an agent or employee of CITY.
15. IlNIDDRTTY. CORIRACTOR hereby agrees to indemify and save
harmless CITY, ltsits officers, agents, and employees of and from:
(a) Any and all claim and demands which may be made against
CITY, its officers, agents, or employees by reason of any injury to or
death of any person or damage suffered or sustained by any person or
corporation caused by, or alleged to have been caused by, any act or
amission, negligent or otherwise, of CORMCIM or any subcontractor under
this agreement or of C ONTJRACIM I S or any subcontractor's employees or
agents;
(b) Any and all damage to or destruction of the property of CrrY
its officers, agents, or employees occupied or used by or in the care,
custody, or control of CONTRAMR, or in pxnocimity to the site of
C MI'RACPOR'S work, caused by any act or c missicn, negligent or otherwise,
of C34rRA= or any subcontractor under this agreement or of C70NIgiACI I S
or any subcontractor's employees or agents.
(c) Any and all claims and demands which may be made against
CITY, its officers, agents, or employees by ream of any injury to or
death of or damage suffered or sustained by any employee or agent of
OORMCIOR or any subcontractor under this aunt, however caused,
excepting, however, any such claims and demos which are the result of
the sole negligence or willful misconduct of CITY, its officers, agents,
or employees;
(d) Any and all claims and demands which may be made against
CITY, its officers, agents, or employees by reason of any infringement or
alleged infringement of any patent rights or claims caused or alleged to
have been caused by the use of any apparatus, appliance, or materials
fw: u shed by COMIRACIOR or any subcontractor under this agreement; and
(e) Any and all penalties imposed or damages sought on account
of the violation of any law or regulation or of any term or condition of
any permit.
CONrRACIM, at its own cost, expense, and risk, shall defend any
and all suits, actions, or other legal proceedings that may be brought or
instituted by third persons against CITY, its officers, agents, or
employees on any of the above claims or demands of such third persons, or
to enforce any of the above penalties, and pay and satisfy any judgment or
decree that may be rendered against CITY, its officers, agents, or
employees in any such suit, action, or other legal proceedings.
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16. Wes' CCMMSATION. CCtTTRACXR certifies treat it is aware of
the provisions of the Labor Code of the State of California which require
every employer to be insured against liability for workers' ration
or to undertake self-insurance in accordance with the provisions of that
code, and it certifies that it will comply with such provisions before
Fencing the performance of the work of this agreement.
17. INSURANCE. CQNIY2ACIDR, at its sole cast and expense, shall
obtain and in full force and effect throughout the entire term of
this agreement the insurance coverage of at least a "B" rating as
deter-ud�nced in accordance with the insurance industry standard, insuring
not only CCNTRACI'OR, but also (with the exception of workers' cation
and employer's liability insurance) , CITY, its officers, agents, and
employees, and each of them with respect to activities and services
performed by COMRACICR for or on behalf of CITY under the provisions of
this agreement.
Certificates of such insurance, preferably on the forms provided
by CITY, shall be filed with CTTY concurrently with the execution of this
agreement or, with CITY's approval, within ten (10) days thereafter. Said
certificates shall be subject to the approval of the City Attorney and
shall contain an endorsement stating that said insurance is primary
coverage and will not be cancelled or altered by the insurer except after
filing with the City Clerk thirty (30) days' written notice of such
cancellation or alteration, and that the City of Cupertino is named as an
additional insured. Current certificates of such insurance shall be kept
on file at all times during the term of this agreem*nt with the City
Cleric.
18. AC VT BINDIM. The tprrs, covenant, and conditions of this
agreement shall apply to, and shall bind, the heirs, successors,
executors, administrators, assigns, and subcontractors of both parties.
19. WAIVERS. The waiver by either warty of any breach or violation
of any term, covenant, or condition of this agreement or any provision,
ordinance, or law shall riot be deemed to be a waiver of any other tern,
covenant, condition, ordinance, or law or of any subsequent breach or
violation of the same or of any other term, covenant, condition,
ordinance, or law. The subsequent acceptance by either party of any fee
or other money which may become due hereunder shall not be deemed to be a
waiver of any preceding breach or violation by the other party of any
term, covenant, or condition of this agreement or of any applic-able law or
ordinance.
20. COWS AND AT'IRNEYS FEES. The prevailing party in any action
brought to enforce the terms of this aunt or arising out of this
agreement may recover its reasonable costs and attorneys' fees expended in
connection with such an action from the other party.
21. WMISCRUMUMCN. No discrimination shall be made in the
employment of persons under this agreement because of the race, color,
national origin, ancestry, religion or sex of such person. If the value
of this agreement is, or may be, Five Thousand Dollars ($5,000) or more,
OMMACMR agrees to meet all requirements of the Cupertino Mmcipal Code
pertaining to nondiscrimination in employment and to complete and submit
the "Compliance Report - Nondiscrimination Provisions of City of Cupertino
Om*xacts" on the form furnished by CITY.
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IN WrAMS WKMW, CrTY and CMnRACTCR have eamm*jed this agreement
the day and year first abow written.
ATE: CrrY OF
City Clerk Bert iskovich'-
Director of Public Works
1�PROVII) ASTOFri
City Att=may
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Social Semwity rnmber
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