03-020 Fehr & Peers Associates~I . b ~
ACCOUNT NO.110-2211 u
CONTRACT AMOUNT $ 4,000.00 (NTE)
PURCHASE ORDER NO.
AGREEMENT
BETWEEN
CITY OF CUI'ERTINO
ANI)
Fehr and Peers Associates, Inc.
FOR
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT MADE AS OF February 10, 2003, BETWEEN CITY
OF CUPERTINO (hereinafter referred to as CI:TY), and Fehr & Peers Associates, Inc.
(hereinafter referred to as Consultant).
WITNESSETH:
WHEREAS, CITY intends to conduct a Traffic Impact Anal, sib the Forum property
on 23500 Cristo Rey Drive (hereinafter referred to as Project) and,
WHEREAS, CITY requires certain professional services in connection with Project
(hereinafter referred as Services); and
WHEREAS, Consultant is qualified and prepared to provide such Services;
NOW, THEREFORE, inconsideration of the promises contained herein, the parties
agree as follows:
ARTICLE 1 -SERVICES TO BE PERFORMED BY CONSULTANT
1.1 Specific Services and the associated sco~~e of services, payment, schedule, and
personnel will be defined in specific Task Order as mutually agreed by City and
Consultant.
1.2 All Task Orders will by reference incorporate the terms and conditions on this
Agreement, and become formal amendments hereto.
ARTICLE 2 -COMPENSATION
2.1 For the full performance of the services described herein by Consultant, City shall
pay Consultant based on a Time and Materials basis for a Cost Not To Exceed
4 000. Consultant shall submit monthl~~ requisitions to City specifying the
amount due for services performed by C'onsultant's staff and a list of incurred
expenses for the past calendar month. Llpon approval of the services performed
PC/DIR/C ITY/FRM S/A92502
and the requisition, City shall pay Consultant in accordance with such requisition
up to the agreed-upon maximum.
2.2 Reimbursement for mileage shall not exceed the prevailing Internal Revenue
Service's standard mileage rate.
2.3 Consultant shall invoice City monthly for the actual costs incurred. If the
Maximum Fee Ceiling is reached, the Consultant will complete the agreed-upon
work for the Maximum Fee Ceiling. With City staff approval, labor hours maybe
reallocated within the tasks without renegotiation in such a manner so as not to
exceed the Maximum Fee Ceiling.
2.4 The Consultant shall provide the City with a review of the budget amounts when
75 percent of the Cost Ceiling for any to;~k has been expended. Consultant may
request a revision in the Cost Ceiling for performance of this Agreement, and will
relate the rationale for the revision to th~~ specific basis of estimate as defined in
the Scope of Services. Such notification will be submitted to the City at the
earliest possible date. The authorized Cost Ceiling shall not be exceeded without
written approval of the City.
2.5 Direct labor rates are subject to revision to coincide with Consultant's normal
salary review schedule. Adjustments indirect labor rates shall not affect the firm
ceiling without prior written authorization of the City.
ARTICLE 3 -PERIOD OF SERVICE
3.1 Consultant's services shall commence on February 10, 2003, and will continue
until terminated by either party or until completion.
3.2 Consultant's services under this Agreerrient will be considered complete when
the services are rendered and/or final deliverable is submitted and accepted by
City.
3.3 If any time period within or date by which any of the Consultant's services are to
be completed is exceeded through no fa~.~lt of Consultant, all rates, measures and
amounts of compensation and the time i~or completion of performance shall be
subject to equitable adjustment.
ARTICLE 4 -CITY'S RESPONSIBILITIES.
City will do the following in a timely manner so as not to delay the services of
Consultant.
4.1 Provide all criteria and full information .~s to City's requirements for the
services assignment and designate in ~~riting a person with authority to act on
City's behalf on all matters concerning the Consultant's services.
2
4.2 Furnish to Consultant all existing studies, reports and other available data
pertinent to the Consultant's services, obtain or authorize, Consultant to obtain or
provide additional reports and data as required, and furnish to Consultant
services of others required for the performance of Consultant's services
hereunder, and Consultant shall be entii:led to use and rely upon all such
information and services provided by City or others in performing Consultant's
services under this Agreement.
4.3 Arrange for access to and make all prow isions for Consultant to enter upon public
and private property as required for Co~lsultant to perform services hereunder.
4.4 Perform such other functions as are indicated in each Task Order related to duties
of City.
4.5 Bear all costs incident to compliance with the requirements of this Section.
ARTICLE 5 -STANDARD OF CARE
5.1 Consultant shall exercise the same degree of care, skill, and diligence in the
performance of the Services as is ordinarily provided by a professional
Consultant under similar circumstance rind Consultant shall, at no cost to City,
re-perform services which fail to satisfy the foregoing standard of care.
ARTICLE 7 -SUBCONTRACTING
7.1 No subcontract shall be awarded by Consultant until prior written approval is
obtained from the City.
ARTICLE 8 -CONSULTANT-ASSIGNED PE:[ZSONNEL
8.1 Consultant shall designate in writing art individual to have immediate
responsibility for the performance of th~~ services and for all matters relating to
performance under this Agreement. KE~y personnel to be assigned by Consultant
will be stipulated in each Task Order. Substitution of any assigned person shall
require the prior written approval of the City, which shall not be unreasonably
withheld. If the City determines that a :proposed substitution is not responsible
or qualified to perform the services there, at the request of the City, Consultant
shall substitute a qualified and responsible person.
ARTICLE 9 -OWNERSHIP OF DOCUMENTS
9.1 All work products, drawings, data, reports, files, estimate and other such
information and materials (except proprietary computer programs, including
source codes purchased or developed v~ith Consultant monies) as maybe
3
accumulated by Consultant to complete services under this Agreement shall be
owned by the City.
9.2 Consultant shall retain custody of all project data and documents other
than deliverables specified in each Taslc Order, but shall make access
thereto available to the City at all reasonable times the City may request.
City may make and retain copies for information and reference.
9.3 All deliverables and other information prepared by Consultant pursuant to this
Agreement are instruments of service i~1 respect to this project. They are not
intended or represented to be suitable for reuse by City or others on extensions
of this Projector on any other project..~ny reuse without written verification or
adaptation by Engineer for the specific purpose intended will be at City's sole
risk and without liability or legal exposure to Consultant; and City shall
indemnify and hold harmless Consultant against all claims, damages, losses, and
expenses. including attorney's fees arising out of or resulting from such reuse.
Any such verification or adaptation will entitle Consultant to further
compensation at rates to be agreed upon by City and Consultant.
ARTICLE 10 -RECORDS OF LABOR AND COSTS
10.1 Consultant shall maintain for all Task Orders, records of labor and costs used in
claims for compensation under this Agreement. Records shall mean a
contemporaneous record of time for personnel;.a methodology and calculation
of the Multiplier for fringe benefits and indirect costs; and invoices, time sheets,
or other factors used as a basis for determining other nonlabor Project charges.
These records must be made available 1o the City upon reasonable notice of no
more than 48 hours during the period of the performance of this Agreement.
10.2 After delivery of. Services (completion of Task-Orders) under this Agreement,
the Consultant's records of all costs used in claim's for compensation under this
Agreement shall .be available to City's ~iccountants and auditors for inspection
and verification. These records will be maintained by Consultant and made
reasonably accessible to the City for a period of three (3) years after completion
of Task Orders under this Agreement.
10.3 Consultant agrees to cooperate and provide any and all information concerning
the Project costs which are a factor in determining compensation under this
Agreement as requested by the City or ,any public agency which has any part in
providing financing for, or authority over, the Services which are provided
under the Agreement.
10.4 Failure to provide documentation or substantiation of all Project costs used as a
factor in compensation paid under Arti~~le 2 hereof will be grounds for City to
refuse payment of any statement submitted by the Consultant and for a back
charge for any City funds, including interest from payment; or grant, matching
4
or other funds from agencies assisting (~ity in financing the Services specified in
this Agreement.
ARTICLE II -INSURANCE
Consultant shall provide and maintain at all times during the performance of the
Agreement the following insurances:
11.1 Workers' Compensation and Employer's Liability Insurance for protection of
Consultant's employees as required by law and as will protect Consultant from
loss or damage because of personal injuries, including death, to any of his
employees.
11.2 Comprehensive Automobile Liability Insurance. Consultant agrees to carry a
Comprehensive Automobile Liability Policy providing bodily injury liability.
This policy shall protect Consultant ag~~inst all liability arising out of the use of
owned or leased automobiles both passenger and commercial. Automobiles,
trucks, and other vehicles and equipment (owned, not owned, or hired, licensed
or unlicensed for road use) shall be covered under this policy. Limits of liability
for Comprehensive Automobile Liability Insurance shall not be less than
$1,000,000 Combined Single Limit.
11.3 Comprehensive General Liability. Insurance as will protect Consultant and City
from any and all claims for damages or personal injuries, including death, which
maybe suffered by persons, or for damages to or destruction to the property of
others, which may arise from the Consultant's operations under this Agreement,
which insurance shall name the City as additional insured. Said insurance shall
provide a minimum of $1,000,000 Combined Single Limit coverage for personal
injury, bodily injury, and property damage for each occurrence arid aggregate.
Such insurance will insure Consultant and City from any and all claims arising
from the following:
1. Personal injury;
2. Bodily injury;
3. Property damage;
4. Broad form property damage;
5. Independent contractors;
6. Blanket contractual liability.
11.4 Consultant shall maintain a policy of professional liability insurance, protecting
it against claims arising out of negligent: acts, errors, or omissions of Consultant
pursuant to this Agreement, in an amount of not less than $1,000,000. The said
policy shall cover the indemnity provisions under this Agreement.
5
11.5 Consultant agrees to maintain such insurance at Consultant's expense in full
force and effect in a company or companies satisfactory to the City. All coverage
shall remain in effect until completion of the Project.
11.6 Consultant will furnish the City with cE~rtificates of insurance issued by
Consultant's insurance carrier and countersigned by an authorized agent or
representative of the insurance compa~ly. The certificates shall show that the
insurance will not be cancelled, altered, or reduced without at least thirty (30)
days' prior written notice to the City. 7Che certificates for liability insurance will
show that liability assumed under this Agreement is included.
ARTICLE 12 -LIABILITY AND INDEMNIFICATION
12.1 Having considered the risks and potential liabilities that may exist during the
performance of the Services; and inconsideration of the promises included
herein, City and Consultant agree to allocate such liabilities in accordance with
this Article 12. Words and phrases used in this Article shall be interpreted in
accordance with customary insurance vldustry usage and practice.
12.2 Consultant shall indemnify and save harmless and defend the City and all of
their agents, officers, and employees frc-m and against all claims, demand, or
cause of action of every name and nature arising out of negligent error,
omission, or act of Consultant, its agents, servants, or employees in the
performance of its services under this Agreement.
12.3 In the event an action for damages is filed in which negligence is alleged on the
part of City and Consultant, Consultant agrees to defend City. In the event City
accepts Consultant's defense, City agreE~s to indemnify and reimburse
Consultant on a pro rata basis for all ex~~enses of defense and any judgment or
amount paid by Consultant in resolution of such claim. Such pro rata share shall
be based upon a final judicial determin<tion of negligence or, in the absence of
such determination, by mutual agreemE~nt.
12.4 Consultant shall indemnify City against legal liability for damages arising out of
claims by Consultant's employees. City shall indemnify Consultant against legal
liability for damages arising out of claims by City's employees.
12.5 Indemnity provisions will be incorporated into all Project contractual
arrangements entered into by City and will protect City and Consultant to the
same extent.
12.6 Upon completion of all services, obligations and duties provided for in the
Agreement, or in the event of terminati~~n of this Agreement for any reason, the
terms and conditions of this Article shall survive.
12.7 To the maximum extent permitted by law, Consultant's liability for City's
6
damage will not exceed the aggregate compensation received by Consultant
under this Agreement or the maximum amount of professional liability
insurance required by this Agreement, which ever is greater.
ARTICLE 13 -INDEPENDENT CONTRACTOR
Consultant undertakes performance of the Services as an independent contractor and
shall be wholly responsible for the methods of performance. City will have no right to
supervise the methods used, but City will hay e right to observe such performance.
Consultant shall work closely with City in performing Services under this Agreement.
ARTICLE 14 -COMPLIANCE WITH LAWS
In performance of the Services, Consultant will comply with applicable regulatory
requirements including federal, state, and loc~il laws, rules, regulations, orders, codes,
criteria and standards. Consultant shall procure the permits, certificates, and licenses
necessary to allow Consultant to perform the
Services. Consultant shall not be responsible Eor procuring permits, certificates, and
licenses required for any construction unless ~;uch responsibilities are specifically
assigned to Consultant in Task Order.
ARTICLE 15 -NONDISCLOSURE OF PROPRIETARY INFORMATION
Consultant shall consider all information provided by City and all drawings, reports,
studies, design calculations, specifications, an~~ other documents resulting from the
Consultant's performance of the Services to bE~ proprietary unless such information is
available from public sources. Consultant shall not publish or disclose proprietary
information for any purpose other than the pE~rformance of the Services without the
prior Written authorization of City or in response to legal process.
ARTICLE 16 -TERMINATION OF CONTRA(~T
16.1 The obligation to continue Services under this Agreement maybe terminated by
either party upon seven days written notice in the event of substantial failure by
the other party to perform in accordance with the terms hereof through no fault
of the terminating party.
16.2 City shall have the right to terminate this Agreement or suspend performance
thereof for City's convenience upon written notice to Consultant, and Consultant
shall terminate or suspend performancE~ of Services on a schedule acceptable to
City. If this agreement is suspended or terminated for fault of Consultant, City
shall be obligated to compensate Consultant only for that portion of Consultant's
services which are of benefit to City. In the event of termination of suspension
for City's convenience, City will pay Consultant for all services performed and
costs incurred including termination or suspension expenses. Upon restart of a
7
suspended project, equitable adjustment shall be made to Consultant's
compensation.
16.3 Upon such suspension or termination, Consultant shall turn over to the City
Manager immediately any and all copiE~s of studies, sketches, drawings,
computations, and other data, whether or not completed, prepared by
Consultant or its subcontractors, if any, or given to Consultant or its
subcontractors, if any, in connection with this agreement. Such materials shall
become the permanent property of City. Consultant, however, shall not be liable
for City 's use of incomplete materials ar for City 's use of complete documents if
used for other than the project contem~~lated by this agreement.
16.4 Consultant shall furnish City with every reasonable opportunity for City to
ascertain that the services of Consultant 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 v~~ork shall not relieve Consultant of any of
its obligations to fulfill its agreement as prescribed.
16.5 Failure of City to agree with Consultant'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 Consultant to meet the requirements of this agreement.
ARTICLE 17 -UNCONTROLLABLE FORCE~~
17.1 Neither City nor Consultant shall be considered to be in default of this
Agreement if delays in or failure of performance shall be due to uncontrollable
forces, the effect of which, by the exercise of reasonable diligence, the
nonperforming party could not avoid. The term "uncontrollable forces" shall
mean any event which results in the prevention or delay of performance by a
party of its obligations under this Agreement and which is beyond the control of
the nonperforming party. It includes, lout is not limited to, fire, flood,
earthquake, storms, lightening, epidermic, war, riot, civil disturbance, sabotage,
inability to procure permits, licenses, or authorizations from any state, local, or
federal agency or person for any of the supplies, materials, accesses, or services
required to be provided by either City ~ar Consultant under this Agreement,
strikes, work slowdowns or other labor disturbances, and judicial restraint.
17.2 Neither party shall, however, be excused from performance if nonperformance is
due to uncontrollable forces which are removable or remediable, and which the
nonperforming party could have, with the exercise of reasonable diligence,
removed or remedied with reasonable dispatch. The provisions of this Article
shall not be interpreted or construed to require Consultant or City to prevent,
settle, or otherwise avoid a strike, work slowdown, or other labor action. The
nonperforming party shall, within a reasonable time of being prevented or
8
delayed from performance by an uncontrollable force, give written notice to the
other party describing the circumstancE~s and uncontrollable forces preventing
continued performance of the obligations of this Agreement. The Consultant
will be allowed reasonable negotiated f~xtension of time or adjustments for City
initiated temporary stoppage of services.
ARTICLE 18 -MISCELLANEOUS
18.1 A waiver by either City or Consultant c-f any breach of this Agreement shall not
be binding upon the waiving party unless such waiver is in writing. In the event
of a written waiver, such a waiver shall not affect the waiving party's rights with
respect to any other or further breach.
18.2 The invalidity, illegality, or unenforcea bility of any provision of this Agreement,
or the occurrence of any event rendering any portion or provision of this
Agreement void, shall in no way effect the validity or enforceability of any other
portion or provision of the Agreement. Any void provision shall be deemed
severed from the Agreement and the b~-lance of the Agreement shall be
construed and enforced as if the Agreement did not contain the particular
portion or provision held to be void.
ARTICLE 19 -INTEGRATION AND MODIFICATION
19.1 This Agreement (consisting of pa es 1 to 13 including Attachment A), together
with all Task Orders executed by the undersigned, is adopted by City and
Consultant as a complete and exclusive statement of the terms of the Agreement
between City and Consultant. This Agreement supersedes all prior agreements,
contracts, proposals, representations, negotiations, letters, or other
communications between the City and ~:.onsultant pertaining to the Services,
whether written or oral.
19.2 The Agreement may not be modified w~less such modifications are evidenced in
writing signed by both City and Consultant.
ARTICLE 20-SUCCESSORS AND ASSIGNS
20.1 City and Consultant each binds itself ar-d its directors, officers, partners,
successors, executors, administrators; assigns and legal representatives to the
other party to this Agreement and to th.e partners, successors, executors,
administrators, assigns, and legal representatives of such other party, in respect
to all covenants, agreements, and oblig,~tions of this Agreement.
20.2 Neither City nor Consultant shall assign, sublet, or transfer any rights under or
interest in (including, but without limit~ition, monies that may become due or
monies that are due) this Agreement without the written consent of the other,
except to the extent that the effect of thi;~ limitation may be restricted by law.
9
Unless specifically stated to the contrary in any written consent to an
assignment, no assignment will release or discharge the assignor from any duty
or responsibility under this Agreement. Nothing contained in this paragraph
shall prevent Consultant from employi~lg such independent consultants,
associates, and subcontractors as he may deem appropriate to assist him/her in
the performance of the Services hereun~~er and in accordance with Article 7.
20.3 Nothing herein shall be construed to give any rights or benefits to anyone other
than City and Consultant.
ARTICLE 21- EXECUTION
IN WITNESS THEREOF, the parties hereto have made and executed this Agreement as
of the day and year first above written.
CITY OF CUPERTINO
~~
By
Date: ~ , `~ ~ ~'S
CHARLES T. KILIAN
(CONSULTANT)
B N.~G "(~ ~~ r
Y'
Ti e: ~r~i~ti~~~
Date: ~ C~^,~~G;,or~ /Z~ ~0~ j
LEGAL COUNSEL
sy:
Le Counsel
10
TASK ORDER NO.
to
AGREEMENT BETWEEN
CITY OF CU]?ERT1NO
AND
FEHR & PEERS ASSOCIATES, INC.
FOR'.
PROFESSIONAL SERVICES
Dated Februaryl0, 2003
1. PURPOSE - A Traffic Impact, Circulati~~n and Parking Analysis for the Forum
project on 23500 Cristo Rev Drive, CuX~ertino
2. PROTECT COORDINATION -
(a) Cwt .The City Manager shall be rf~presentative of City for all purposes
under this agreement. Aarti Shrivastava hereby is designated as the
Project Manager for the City Man,~ger, and shall supervise the progress
and execution of this agreement.
3. SCOPE OF SERVICES & DUTIES OF CONSULTANT.
(a) Services to be Furnished. Consult~~nt shall provide all specified services as
set forth in Exhibit A Scope of Work.
(b) Laws to be Observed. Consultant shall:
1. Procure all permits and licenses; pay all charges and fees, and give all
notices which maybe necessary and incident to the due and lawful
prosecution of the services to bc~ performed by Consultant 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
Consultant 's performance undE~r 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 saki laws, ordinances, regulations, orders,
and decrees mentioned above iri 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, Consultant or its
11
subcontractors, if any, under this agreement shall be the property of City
and shall not be made available to any individual or organization by
Consultant or its subcontractors, i.f any, without the prior written approval
of the City Manager.
(d) If City requests additional copies of reports, drawings, specifications or any
other material which Consultant i s required to furnish in limited quantities
as part of the services under this ~~greement, Consultant shall provide such
additional copies as are requested and City shall compensate Consultant
for the costs of duplicating of such copies at Consultant 'S cost.
(e) Consultant shall provide City with one electronic copy, one photocopy-
ready original, and seven (7) bowed copies of the final report required
under this agreement upon completion and acceptance of the report by
City. The Traffic Impact Analysis shall be written in a clear and concise
manner that can be easily undersi:ood 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 irriages.
IN WITNESS WHEREOF, the parties hereto have made and executed this Task
Order No. as of Februar,~ 2003, herewith incorporate it as part of
the Agreement.
CITY OF CUPERTINO
1
By ~,cJ
j'~t-~ i ~~~.5
(CONSULTANT)
Tit : ~ ~~~~~~~
Date: Z • ZG . 0 3
CHARLES T. KILIAN
LEGAL COUNSEL
By:
Counsel
Date: ~~th~~ lZ~ Z-
12
Attachment A
SCOPE OF WORK
Trip Generation and ]Parking Study for
Proposed Forum Expansion Project
The proposed project consists of adding 24,000-square foot skilled nursing facility with
24 beds to the Forum located on Cristo Re:y Drive in Cupertino, California. A trip
generation and parking study will be conducted to determine the trip generation
estimates and parking estimates for the proposed project.
The tasks to be conducted in the analysis are:
Task 1 -Estimate Trip Generation -Fehr & Peers Associates will conduct manual
driveway counts on a typical weekday from 7:00 am to 9:00 am and 4:00 pm to 6:00 pm
at two existing skilled nursing facilities. We v~ill consult with the City to identify these
facilities. Our fee estimate assumes that the facilities have one or two driveways. The
number of trips generated by the each site will be divided by the number of beds or the
total square footage to determine the trip generation rates. These trip rates will be
applied to the project size to determine the tries generated by the proposed project.
Task 2 -Parking - Parking surveys will lie conducted at the trip generation sites
during the peak period of the facility on two different days. Irt addition, parking
surveys will be conducted at the project site to obtain the existing parking demand also
during the peak period of the facility and on two different days. We will contact the
Forum and the other surveyed facilities to determine when the peak period occurs. The
parking demand for the proposed project `will be estimated based on the parking
surveys and added to the existing parking demand to determine the future parking
demand and supply needed.
Task 3 -Prepare Documentation -The results of the Tasks 1 and 2 will be
summarized in a memorandum report and submitted to the City.
Additional Services
The scope of services has been tailored to meet the requirements of the City of
Cupertino. There may be some additional services needed during the course of the
analysis. These would include preparing a tr;~nsportation impact analysis, conducting
traffic counts, analyzing any intersections, ev;~luating revised project descriptions, and
attending meetings or public hearings. Additional services will only be conducted
upon our receipt of written authorization.
D: \Aarti \ Projects \ Forum\ ForumF&Pcontract.doc
13