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05-026, Schoolhouse Services Economists and Planners AGREEMENT BETWEEN CITY OF CUPERTINO AND SCHOOLHOUSE SERVICES, ECONOMISTS AND PLANNERS FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT MADE AS OF March 5, 2005, BETWEEN CITY OF CUPERTINO (hereinafter referred to as CITY), and SCHOOLHOUSE SERVICES, ECONOMISTS AND PLANNERS (hereinafter referred to as Consultant). WITNESSETH: WHEREAS, CITY intends to provide Consulting Services for School Impact Study on the Bungalow Courts Development (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, in consideration 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 scope 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 - COMPENSA nON 2.1 Compensation for Consulting services performed under this Agreement shall be compensated for on a Cost Plus Fixed Fee basis. When using this basis of compensation, the City agrees to pay Consultant actual costs incurred, subject to an agreed upon Cost Ceiling, plus a Fixed Professional Fee (Fixed Fee). For purposes of this Agreement, the actual costs shall include: Direct Labor Cost Overhead Cost . Other Direct Costs (Direct Non-salary Costs) Outside Services Labor rates shall be based on a normal 8-hour day, 40-hour week, with overtime paid for authorized work. Technicians, drafters, and support personnel are paid at one and one-half times their regular rate for overtime. Professional personnel are paid at their regular rate for overtime. Overhead Cost shall be the sum of Fringe Benefits and Indirect Costs. As a portion of the total compensation to be paid to Consultant, City shall pay a Fixed Professional Fee negotiated for each Task Order as profit for services rendered by Consultant covered by this Agreement and its Task Orders. The Fixed Fee may be increased for additional authorized services only by subsequent task order or amendment changing the scope of work: Definitions are as follows: a) Direct labor is salaries and wages paid to personnel for time directly chargeable to the project. Direct labor does not include the cost of Consultant's statutory and customary benefits, such as sick leave, holidays, vacations; and medical and retirement benefits nor the cost of the time of executive and administrative personnel and others whose time is not identifiable to the project. b) Fringe benefits include Consultant's statutory and customary benefits, such as sick leave, holidays, vacations, medical and retirement benefits, incentive pay, tuition, and other costs classified as employee benefits. c) Indirect costs are allocations of costs that are not directly chargeable to a specific engagement and are commonly referred to as Consultant's overhead. Indirect costs include provisions for such things as clerical support, office space, light and heat, insurance, statutory and customary employee benefits, and the time of executive and administrative personnel and others whose time is not identifiable to the Consulting Services for School Impact Study on the Bungalow Courts Development Project or to' any other project. Under no circumstances can the same labor costs be charged as direct labor and also appear at the same time as indirect costs, and visa versa. 2 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc d) Other (non-labor) direct costs include such typical expenses as cost of transportation and subsistence, printing and reproduction, computer time and programming costs, identifiable supplies, and charges by reviewing authorities. e) Outside Services shall include all charges from outside consulting firms or subconsultants. 2.2 Reimbursement for mileage shall not exceed the prevailing Internal Revenue Service's standard mileage rate. 2.3 A Cost Ceiling will be established for each Task Order which is based upon estimated labor-hours and cost estimates. Costs as described above, comprising direct labor, overhead cost, and other direct costs, shall be payable up to a Cost Ceiling as specified in the Task Order. A Maximum Fee Ceiling, or Task Order Firm Ceiling, will also be established for each Task Order which includes the Cost Ceiling plus the Fixed Fee. 2.4 Consultant shall invoice City monthly for the actual costs incurred, and a pro- rated portion of the Fixed Fee for work-performed during the previous month. 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 may be reallocated within the tasks without renegotiation in such a manner so as not to exceed the Maximum Fee Ceiling. 2.5 The Consultant shall provide the City with a review of the budget amounts when 75 percent of the Cost Ceiling for any task has been expended. Consultant may request a revision in the Cost Ceiling for performance ofthis Agreement, and will relate the rationale for the revision to the 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. 2.6 The fixed professional fee will not be changed except in the case of a written amendment to the Agreement, which alters the Scope of Services. City and Consultant agree to negotiate an increase or decrease in Cost Ceiling and Fixed Fee for any change in Scope of Services required at any time during the term of this Agreement. Consultant will not commence work on the altered Scope of Services until authorized by City. 2.7 Direct labor rates are subject to revision to coincide with Consultant's normal salary review schedule. Adjustments in direct labor rates shall not affect the firm ceiling without prior written authorization of the City. 2.8 City shall pay Consultant in accordance with each Task Order for Services. 3 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc 2.9 Consultant shall submit monthly statements for Services rendered. City will make prompt monthly payments in response to Consultant's monthly statements. ARTICLE 3 - PERIOD OF SERVICE 3.1 Consultant's services will be performed and the specified services rendered and deliverables submitted within the time period or by the date stipulated in each Task Order. 3.2 Consultant's services under this Agreement 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 fault of Consultant, all rates, measures and amounts of compensation and the time for 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 as to City's requirements for the services assignment and designate in writing a person with authority to act on City's behalf on all matters concerning the Consultant's services. 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 entitled 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 provisions for Consultant to enter upon public and private property as required for Consultant 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. 4 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc 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 and Consultant shall, at no cost to City, re-perform services which fail to satisfy the foregoing standard of care. ARTICLE 6 - OPINIONS OF COST AND SCHEDULE' 6.1 Since Consultant has no control over the cost oflabor, materials, equipment or services furnished by others, or over contractors', subcontractors', or vendors' methods of determining prices, or over competitive bidding or market conditions or economic conditions, Consultant's cost estimate and economic analysis shall be made on the basis of qualification and experience as a professional. 6.2 Since Consultant has no control over the resources provided by others to meet contract schedules, Consultant's forecast schedules shall be made on the basis of qualification and experience as a professional. Consultant cannot and does not guarantee that proposals, bids or actual project costs will vary from his cost estimates or that actual schedules will not vary from his forecast schedules. 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 PERSONNEL 8.1 Consultant shall designate in writing an individual to have immediate responsibility for the performance of the services and for all matters relating to performance under this Agreement. Key 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 then, 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 with Consultant monies) as may be 5 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc 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 Task 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 in respect to this project. They are not intended or represented to be suitable for reuse by City or others on extensions of this Project or on any other project. Any 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 oflabor 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 to 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 accountants 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 Article 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 or 6 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc other funds from agencies assisting City 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 against 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 shan 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 may be 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 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. 11.5 Consultant will furnish the City with certificates of insurance issued by Consultant's insurance carrier and countersigned by an authorized agent or representative of the insurance company. The certificates shall show that the 7 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc insurance will not be cancelled, altered, or reduced without at least thirty (30) days prior written notice to the City. The 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 in consideration 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 industry usage and practice. 12.2 Consultant shall indemnify and save harmless and defend the City and all of their agents, officers, and employees from 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 agrees to indemnify and reimburse Consultant on a pro rata basis for all expenses 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 determination of negligence or, in the absence of such determination, by mutual agreement. 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 termination 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 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 8 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc 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 have 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 local laws, rules, regulations, orders, codes, criteria and standards. Consultant shall procure the permits, certificates, and licenses necessary to allow Consultant to provide Consulting Services for School Impact Study on the Bungalow Courts Development. Consultant shall not be responsible for procuring permits, certificates, and licenses required for any construction unless such 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, and 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 performance of the Services without the prior Written authorization of City or in response to legal. process. ARTICLE 1.6 - TERMINA nON OF CONTRACT 16.1 The obligation to continue Services under this Agreement may be 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. 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 suspended project, equitable adjustment shall be made to Consultant's compensation. ARTICLE 17-UNCONTROLLABLEFORCES 17.1 N either 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 9 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc mean any event that 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, but is not limited to, fire, flood, earthquake, storms, lightening, epidemic, 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 or 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 delayed from performance by an uncontrollable force, give written notice to the other party describing the circumstances and uncontrollable forces preventing continued performance of the obligations of this Agreement. The Consultant will be allowed reasonable negotiated extension of time or adjustments for City initiated temporary stoppage of services. ARTICLE 18 - MISCELLANEOUS 18.1 A waiver by either City or Consultant of 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 unenforceability 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 balance 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 pages 1 to W, together with all exhibits 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, 10 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc representations, negotiations, letters, or other communications between the City and Consultant pertaining to the Services, whether written or oral. 19.2 The Agreement may not be modified unless 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 and its directors, officers, partners, successors, executors, administrators; assigns and legal representatives to the other party to this Agreement and to the partners, successors, executors, administrators, assigns, and legal representatives of such other party, in respect to all covenants, agreements, and obligations of this Agreement. 20.2 Neither City nor Consultant shall assign, sublet, or transfer any rights under or interest in (including, but without limitation, 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 this limitation may be restricted by law. 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 employing such independent consultants, associates, and subcontractors as he may deem appropriate to assist him/her in the performance of the Services hereunder 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. 11 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc ARTICLE 21- EXECUTION IN WITNESS THEREOF, the parties hereto have made and executed this Agreement as of the day and year first above written. U1M\ ~ ~ Vera Gi1, Senior Planner Schoolhouse Services, Economists and Planners (CONSULTANT) City of Cupertino By "" ~~~ Title: Principal '3!~/c)s- Date: Date: March 5. 2005 CHARLES T. KILIAN LEGAL COUNSEL BY:~ Legal Counsel 12 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc TASK ORDER NO.1 to AGREEMENT BETWEEN CITY OF CUPERTINO AND SHOOLHOUSE SERVICES. ECONOMISTS AND PLANNERS FOR PROFESSIONAL SERVICES Dated March 5. 2005 I. PURPOSE The consultant shall provide Consulting Services for School Impact Study on the Bungalow Courts Development on behalf of the city of Cupertino for submission to the Cupertino City Council according to the attached Schedule for Inititiative Report Preparation. 2. PROJECT COORDINA nON Project shall be coordinated with Vera Gil, Senior Planner, in the Community Development Department. Consultant may need to coordinate work with other City staff, the applicant (Taylor Woodrow Homes) and the school districts as directed. 3. SCOPE OF SERVICES Attached Proposal for Consulting Services for School Impact Study on the Bungalow Courts Development, Exhibit A, is hereby incorporated as part ofthis agreement. 13 H:I-BUNGALOW COURTSISchoolhouse Services Agreement.doc IN WITNESS WHEREOF, the parties hereto have made and executed this Task Order No. one (1) as ofMttV 5, 2005 and therewith incorporate it as part of the Agreement. ~"."'\.. CITY CONSULTANT City of Cupertino 1Jl~ j:}' 1 Vera Oil, Senior Planner By: Title: Principal 14 H:\-BUNGALOW COURTS\Schoolhouse Services Agreement.doc Jr