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12-047 Agreement, Main Street Cupertino Retail/Commercial Consultation, Linda S. Congleton & Associates CITY OF AGREEMENT CITY OF CUPERTINO 10300 Torre Avenue 405ii9 Cupertino, CA 95014 / CUPERTINO 408-777-3200 NO. G�jj� THIS AGREEMENT, made and entered into this 113th day of April, 2012 is by and between the CITY OF CUPERTINO (Hereinafter "CITY") and Linda S. Congleton & Associates, 31726 Rancho Viejo Road, Suite 108, San Juan Capistrano, CA 92675, (949) 487-2000 Iscongletonassoc(aaol.com, Hereinafter "CONTRACTOR"), in consideration of their mutual covenants, the parties agree as follows: CONTRACTOR shall provide or furnish the following specified services and/or materials: Main Street Cupertino Retail/Commercial Consultation. EXHIBITS: The following attached exhibits hereby are made part of this Agreement: Exhibit A TERMS: The services and/or materials furnished under this Agreement shall commence on April 13, 2012 and shall be completed no later than June 30, 2012. COMPENSATION: For the full performance of this Agreement, CITY shall pay CONTRACTOR: $5,000 California Labor Code, Section 1771 requires the payment of prevailing wages to all workers employed on a Public Works contract in excess of $1,000.00. GENERAL TERMS AND CONDITIONS Hold Harmless. Contractor shall, to the fullest extent allowed by law, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liability, claims, stop notices, actions, causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage to property or other liability of any nature, arising out of, pertaining to, or related to any negligent act by Contractor or Contractor's employees, officers, officials, agents or independent contractors, during the performance of this Agreement. Contractor shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. Subcontracting. Contractor has been retained due to their unique skills and Contractor may not substitute another, assign or transfer any rights or obligations under this Agreement. Unless prior written consent from City is obtained, only those people whose names are listed this Agreement shall be used in the performance of this Agreement. Assignment. Contractor may not assign or transfer this Agreement, without prior written consent of CITY. Insurance. Contractor shall file with City a Certificate of Insurance consistent with the following requirements Page 1 of 3 Short Form Agreement—Use for services not to exceed $5,000.00 Coverage: Contractor shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $1,000,000 each occurrence $2,000,000 aggregate - all other Property Damage: $500,000 each occurrence $1,000,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of$2,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Comprehensive automobile liability coverage in the following minimum limits: Bodily injury: $500,000 each occurrence Property Damage: $500,000 each occurrence or Combined Single Limit: $1,000,000 each occurrence Subrogation Waiver. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. Termination of Agreement. The City reserves the right to terminate this Agreement with a seven (7)-day notice. The Contractor may terminate this Agreement with a seven (7)-day written notice. Non-Discrimination. No discrimination shall be made in the employment of persons under this Agreement because of the race, color, national origin, ancestry, religion, gender or sexual orientation 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 relationship 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. City shall have no right of control as to the manner Contractor performs the services to be performed. Nevertheless, City may, at any time, observe the manner in which such services are being performed by the contractor. Page 2 of 3 Short Form Agreement—Use for services not to exceed $5,000.00 The Contractor shall comply with all applicable Federal, State, and local laws and ordinances including, but not limited to, unemployment insurance benefits, FICA laws, and the City business license ordinance. Changes. 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:Gary Chao, City Planner DEPARTMENT:Community Development 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. CONTRACTOR: / �;, CITY OF CUPERTINO: /, .. /� By �� � / /_ By Ga Cha• �� Title ��ii/!r�i.xri/ Title: City Plan - 400111111.P.' Soc. Sec. #or ax I.D .5 " /, . 0 APPROVALS EXPENDITURE DISTRIBUTION DEPA• M NT .'a'D DATE _ACCOUNT NUMBER AMOUNT x4-/16/);/ 110-2211 (Main St) bS i v.5S $5,000.00 C TY A O-V EY AC VED TO FORM DATE ," 4 Hi 2°z , 4 fp- \. Page 3 of 3 Short Form Agreement—Use for services not to exceed $5,000.00 EXHIBIT A Main Street Cupertino Retail/Commercial Consultation Scope of Work: • Evaluation of retail site plans, including: o Determination of flexibility to accommodate mini-anchor 5,000 to 20,000 square- foot tenants; o Realistic assessment of anchor store possibilities; o Evaluation of"back-space" location for 30,000-square-foot anchor. o Parking availability and configuration. o Restaurant spaces and the design's impact on attracting restaurants, cafes and quick food operations. o Types of potential anchor, mini-anchor and retail stores that can thrive within the framework of the site plan. o Overall pedestrian-oriented retail experience for the shopper, hotel guest, office worker and resident living in housing units. o Access and frontage issues. o Other design, elevation and related issues concerning the feasibility of the project as a thriving, economically-viable shopping experience. • One-day consultation session with City staff; in-field review of the site; and review of selected competition in and around the site; and meeting with City staff, addressing the following: o Brainstorming session regarding retail tenant mix, and the achievable retail tenant types, given the size, configuration and mixed-use nature of the project. o Assessment of the other commercial project components (office, hotel, residential) and the synergies of these uses with the retail tenant mix. o Other issues of concern to the Planning Commission and City Council members. o Provide verbal analysis to five key questions outlined by staff(see attached). o Assess and provide market-oriented analysis of key local retail projects, including projects such as Santana Row, Valley Fair Mall, Stanford Shopping Center, Vallco. Future Work: • Upon completion of the one-day consultation and site plan review, Linda S. Congleton & Associates is available to prepare a short executive summary letter summarizing our major conclusions, at the request of City staff. This executive summary letter would be additional work and is not covered by this first phase of Scope of Work, it being understood that the City wishes to first conduct an initial brainstorming session prior to proceeding with any additional work. • The short executive summary, if requested, would be prepared for submittal to City staff no later than Thursday, April 19, 2012. • Conduct any necessary follow-up teleconferences with staff during the week of April 16, 2012 to review the written draft described above, and provide responses to any follow up questions/comments. Traci Caton Subject: FW: Main Street project-Scope of Work Attachments: Main Street Cupertino Retail.doc From: Lscongletonassoc©aol.com [mailto:Lscongletonassoc@aol.com] Sent: Thursday, April 12, 2012 10:12 PM To: Gary Chao Subject: Re: Main Street project - Scope of Work Dear Gary: The"Associated Research" section is too broadly worded. It sounds like we are going to do a major$20,000-type study. I suggest deleting this section. Keep in mind, we are highly familiar with these major projects, and we will address in the written summary many of these projects and issues--but based on prior research and our prior knowledge of the market. Given the short time-frame you have, we do not have time to"conduct relevant market research and broker interviews." I would recommend a call with the developer and the developer's broker. We will simply have too little time on the day I come up to accomplish all these items. I am fine with your request for a Written Product, as long as the written product is "Future Work" and not part of the original $5,000 in fee. We will be conducting work at our office before I come, and I can verbally address all of your questions. The actual written product, however, would be part of Future Work. If this Future Work proceeds, your timeline is fine with us. I can make a list for you of the projects we should evaluate together on our one-day, in-field review. Should you not decide to proceed to the Future Work phase, I will verbally address the issues during our meeting and you and your staff can prepare a written document without a written document from us. I have prepared a revised Scope of Work (attached). I did not put the Scope of Work on our letterhead, thinking that you may need it on plain paper for use in your contract. I can fill out the W-2 form and scan it and send it back tomorrow. Thanks for all your quick responses. Best regards, Linda Linda S. Congleton Principal Linda S. Congleton &Associates 31726 Rancho Viejo Road, Suite 108 San Juan Capistrano, CA 92675 Phone: (949) 487-2000 Telefax: (949) 487-2077 Mobile: (949) 533-6443 www.congletonconsultinq.com e-mail: Iscongletonassoc(c�aol.com 1 CITY OF CUPERTINO RECEIPT NUMBER: BS000016555 RECEIVED BY: TRACIC PAYOR: 500 FORBES TODAY' S DATE: 04/17/12 REGISTER DATE: 04/17/12 TIME: 09 :48 2 REFUNDABLE DEPOSIT RETAIL CONSULTANT MAIN ST $9, 100. 00 MISC REVENUE CONTRACT ADMIN FEE $900. 00 TOTAL DUE: $10, 000. 00 CHECK $10, 000 .00 REF NUM: 001117 TENDERED CHANGE $10, 000 .00 $ . 00 6 0 1)