01-004 David Powers & Associates - EIR for Compaq projectACCOUNT NO.
CONTRACT AMOUNT $ 101,400.00 (NTE)
PURCHASE ORDER NO.
AGREEMENT
THIS AGREEMENT, made and entered into this l9`h day of March 2001, by and between the CITY OF
CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY", and), David Powers and
Associates, Inc. a consulting firm with offices at 1885 The Alameda, San Jose, California 95126-1744, hereinafter
referred to as "CONTRACTOR";
WITNESSETH:
WHEREAS, CITY desires to retain consulting services to assist CITY in providing an Environmental Impact
Report for the Compaq project, 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 apX~ointed City Clerk of the City of Cupertino, California, or
her designated representative.
2. PROJECT COORDINATION.
(a) Cam. The City Manager shall be representative of CITY for all purposes under this
agreement. AARTI SHRIVASTAVA hereby is designated as the PROJECT MANAGER for the
City Manager, and 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.
MICHELLE YESNEY hereby is designated as the PRC)JECT 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 AARTI SHRIVASTAVA the PROJECT MANAGER.
M~"
3. DUTIES OF CONTRACTOR.
(a) Services to be Furnished. CONTRACTOR shall provide all specified services as set
forth below:
(1) See attached proposal (Exhibit A: Scope of Work and Exhibit B: Tentative
Project Schedule)
(b) Laws 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 fully informed of all ex~.sting and future federal, state, and local
laws, ordinances, regulations, orders, and decrees which m2.y 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 re-ports, 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 <<ny, without the prior written approval of
the City Manager.
(d) Conies of Reports and Information. If CIrCY 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 CON'['RACTOR for the costs of duplicating of
such copies at CONTRACTOR'S cost.
(e) Final Report. CONTRACTOR shall provide CITY with one electronic copy, one
photocopy-ready original, and fifty (50) bound copies of the final report required under this
agreement upon completion and acceptance of the report by CITY. The Environmental Impact Report
shall be written in a clear and concise manner that can be easily understood by the general public.
The report shall be illustrated with charts, maps, graphs and photographs to clarify and summarize the
information. All photographic information should be scanned images and/or digital images.
(f) Qualifications of Contractor. CONTRACTO:[2 represents that it is qualified to furnish
the services described under this agreement.
4. COMPENSATION. For the full perfomance of the services described herein by
CONTRACTOR, CITY shall pay CONTRACTOR based on fees shown in Exhibit A.
CONTRACTOR shall submit monthly rt;quisitions to City specifying the amount
due for services performed by CONTRACTOR'S staff and a list of incurred expenses for the past
calendar month. Upon approval of the services performed and the requisition, City shall pay
CONTRACTOR in accordance with such requisition up to the agreed-upon maximum.
Monthly billings will be payable within thirty (30) days of invoice date. A charge
of 1% per month will be added to all past due accounts.
5. TERM. The services to be performed hereunder shall commence on March 19,
2001, and will continue until terminated by either party or until completion.
6. 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.
7. SUSPENSION; TERMINATION.
(a) Right to Suspend or Terminate. Either party may suspend or terminate this agreement
for any reason by giving thirty (30) days' written notice. Upon receipt of such notice,
CONTRACTOR shall immediately discontinue his performance under this agreement.
(b) Pam. 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 CON'TRACTOR'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
subcontractors, 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 b:~ this agreement.
8. INSPECTION. CONTRACTOR shall furnish 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 MA]vAGER's inspection and approval. The
inspection of such work shall not relieve CONTRACTOR of any of its obligations to fulfill its
agreement as prescribed.
9. 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.
10. ASSIGNMENT; SUBCONTRACTORS; EMPLOYEES.
(a) Assignment. Both parties shall give their per:~onal attention to the faithful performance
of this agreement 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 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) Subcontractors. It is agreed that this agreement is for the personal services of David J.
Powers and Associates Inc. and cannot be performed by an}~ other person or organization.
(c) Subcontractors; Em~loyees. CONTRACTOR shall be responsible for employing or
engaging all persons necessary to perform the servic~;s of CONTRACTOR hereunder. No
subcontractor of CONTRACTOR will be recognized by C]:TY 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. If 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 di:;orderly or improper manner, he shall be
discharged immediately from the work under this agreement on demand of the PROJECT
MANAGER.
11. 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 95014-0:>80
TO CONTRACTOR: Michelle Yesney
David Powers and Associates, Inc.
1885 The Alameda, Suite 204
San Jose, California 95].26-1744
12. INTEREST OF CONTRACTOR. CONTRACTOR covenants that it presently has
no interest, and shall 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 who 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 CI"CY.
13. INDEMNITY. CONTRACTOR hereby agrees to indemnify and hold harmless
CITY, its officers, agents, and employees of and from:
(a) 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, 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 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 which are the result of the sole negligence or willful
misconduct of city, its officers, agents, or employees;
(c) 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.
(d) The CONTRACTOR is not responsible for the accuracy of data from sources other than
his/her own or from conclusions reached as a result of utilizing information supplied by third persons.
(e) The City agrees to provide legal defense to ch~illenges to the adequacy and completeness
of the services provided. The CONTRACTOR shall assist the CITY in responding to such
challenges. If it is subsequently ruled by a court of jurisdiction that errors of facts, procedures or
scope have occurred and that these errors and/or omission:; were the result of the CONTRACTOR'S
own work, then the CONTRACTOR shall be responsible i or providing whatever remedies that may
be required to make the analysis adequate and complete.
14. WORKERS' COMPENSATION. 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.
15. 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 th~° insurance industry standard, insuring not
only CONTRACTOR, but also (with the exception of workers' compensation and employer's liability
insurance), CITY, its officers, agents, and employees, and c;ach 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 tirr~es during the term of this agreement with
the City Clerk.
16. AGREEMENT BINDING. The terms, covenants, and conditions of this agreement
shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and
subcontractors of both parties.
17. WAIVERS. The waiver by either 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, conc.ition, ordinance, or law. The subsequent
acceptance by either party of any fee or other money whic:z 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.
18. 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 party.
19. EOUAL OPPORTUNITY EMPLOYMENT. Consultant represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor, employee or
applicant for employment because of race, religion, color natural origin, handicap, ancestry, sex or
age. Such non-discrimination shall include, but not be limited to, all activities related to initial
employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination. Consultant shall also comply with all releva~it provisions of City's Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in
effort or hereinafter enacted.
20. AGREEMENT CONTAINS ALL LT]yDERSTANDINGS. This document
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 CITE" 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 OF CUPERTINO
City Manager
CONTRACTOR
ATTEST:
7
City Clerk
APPROVED AS TO FORM:
~~.
City Attorney
v
Name
1 ~~:~ 7~.,~1;,~~~i,~~y SJ
Address ~
Telephone
Social Security number
or
Tax LD. number
G:\Planning\Aarti\Projects\Compaq\EI R\DJPcontract.doc
EXHIBIT B
TENTATIVE PROJECT' SCHEDULE
TASK:
RFP's sent out
Proposals due from Consultants
Select Consultant, finalize contract, receive depo:~i
from applicant, authorize work to begin
DATE COMPLETED BY
February 2, 2001
February 23, 2001
t March 9, 2001
Project Submittal from Applicant
Scoping Meeting
ADEIR submitted to staff
Staff returns ADEIR comments to consultant
Draft EIR submitted by consultant
Begin 45 day review period on DEIR
End of 45 day review period
Submit comments received on DEIR to consultant
Receive Administrative Final EIR
Staff returns comments on AFEIR
Receive Final EIR from Consultant
Environmental Review Committee Hearing
Planning Commission public hearing (1)
Planning Commission public hearing (2)
City Council public hearing (1)
City Council public hearing (2) (first reading)
City Council public hearing (3) (second reading)
March 9, 2001
March 19, 2001
May 14, 2001
May 28, 2001
June 11, 2001
June 12, 2001
June 27, 2001
June 30, 2001
August 13, 2001
August 27, 2001
September 10, 2001
April 4, 2001
September 10, 2001
September 24, 2001
October 15, 2001
November 19, 2001
December 3, 2001
7