13-137 4Leaf, Inc., Consultant Services for Building Inspection Services for Biltmore Apartments OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE= •CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223• FAX: (408) 777-3366
C U P E RT I N O WEBSITE: www.cupertiiio.org
September 5, 2013
4Leaf, Inc.
2110 Rheem Drive, Suite A
Pleasanton, CA 94588
Re: Agreement
Enclosed is a fully executed copy of your agreement with the City of Cupertino. If you
have any questions or need additional information, please contact the Building
Department at (408) 777-3228.
Sincerely,
Dorothy Steenfott
Senior Office Assistant
cc: Building Department
Enclosure
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND 4LEAF, INC,
OR CONSULTANT SERVICES FOR'BUILDNG INSPECTION SERVICES
FOR BILTMORE APARTMENTS
V THIS AGREEMENT, for reference dated August 19th,2013, is by and between
CITY OF CUPERTINO, a municipal corporation(hereinafter referred to as"City"), and
4Leaf,Inc, a California corporation whose address is 2110 Rheem Drive,Suite A,
Pleasanton, California,94588 (hereinafter referred to as"Consultant"), and is made with
reference to the following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now
being conducted under the Constitution and the statutes of the State of California and
the Cupertino Municipal Code.
B. Consultant is specially trained, experienced and competent to perform
the special services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability,background,
certification and knowledge to provide the services described in this Agreement on the
terms and conditions described herein.
D. City and Consultant desire to enter into an agreement for building
inspection services not to exceed$93,660 upon the terms and conditions herein.
NOW, THEREFORE,it is mutually agreed by and between the undersigned
parties as follows:
1. TERM:
The term of this Agreement shall commence on August 191h,2013, and shall
terminate on Tune 301h,2014,unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit"A"which is
attached hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT:
Consultant shall be compensated for services performed pursuant to this
Agreement in the amount set forth in Exhibit"A"which is attached hereto and
incorporated herein by this reference,not to exceed a total of ninety three thousand six
hundred sixty six dollars($93,660). Payment shall be made by checks drawn on the
treasury of the City, to be taken from the 110-7503-9332 fund.
4. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the performance
of this Agreement.
5. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner commensurate
with the prevailing standards of like professionals in the San Francisco Bay Area and
agrees that all services shall be performed by qualified and experienced personnel who
are not employed by the City nor have any contractual relationship with City.
6. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by this
Agreement is that of employer-independent contractor. The manner and means of
conducting the work are under the control of Consultant,except to the extent they are
limited by statute, rule or regulation and the express terms of this Agreement. No civil
service status or other right of employment will be acquired by virtue of Consultant's
services. None of the benefits provided by City to its employees,including but not
limited to,unemployment insurance, workers' compensation plans,vacation and sick
leave are available from City to Consultant, its employees or agents. Deductions shall
not be made for any state or federal taxes, FICA payments,PERS payments, or other
purposes normally associated with an employer-employee relationship from any fees
due Consultant. Payments of the above items, if required, are the responsibility of
Consultant.
6. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity and
employment authorization of all of his/her employees performing work hereunder,
pursuant to all applicable IRCA or other federal, or state rules and regulations.
Consultant shall indemnify and hold City harmless from and against any loss, damage,
liability,costs or expenses arising from any noncompliance of this provision by
Consultant.
7. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are
unacceptable employer/employee conduct, Consultant agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Consultant or Consultant's employee or subcontractor on the basis of race, religious
creed,color, national origin, ancestry, handicap, disability,marital status, pregnancy,
sex, age,or sexual orientation will not be tolerated. Consultant agrees that any and all
violations of this provision shall constitute a material breach of this Agreement.
8. HOLD HARMLESS:
Indemnification:
A. Claims for Professional Liability.Where the law establishes a standard of care
for Consultant's professional services, and to the extent the Consultant breaches
or fails to meet such established standard of care, or is alleged to have breached
or failed to meet such standard of care; Consultant shall, to the fullest extent
allowed by law,with respect to all services performed in connection with the
Agreement, indemnify, defend, and hold harmless the City and its officers,
officials, agents,employees and volunteers from and against any and all liability,
claims, actions,causes of action or demands whatsoever against any of them,
including any injury to or death of any person or damage to property or other
liability of any nature, that arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of Consultant or Consultant's employees,
officers, officials, agents or independent contractors. 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. Consultant shall not be obligated under
this Agreement to indemnify City to tihe extent that the damage is caused by the
sole negligence or willful misconduct of City, its agents or employees.
B. Claims for Other Liability. Ccnsultant shall, to the fullest extent allowed
by law,with respect to all services performed in connection with the Agreement
indemnify, defend, and hold harmless the City and its officers, officials, agents,
employees and volunteers from and against any and all liability, claims, actions,
causes of action or demands whatsoever against any of them,including any
injury to or death of any person or damage to property or other liability of any
nature, that arise out of,pertain to, or relate to the performance of this
Agreement by Consultant or Consultant's employees, officers, officials, agents or
independent contractors.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.
9. INSURANCE:
On or before the commencement of the term of this Agreement, Consultant shall
furnish City with certificates showing the type, amount, class of operations covered,
effective dates and dates of expiration of insurance coverage in compliance with
paragraphs 9A, B, C,D and E. Such certificates,which do not limit Consultant's
indemnification, shall also contain substantially the following statement: "Should any of
the above insurance covered by this certificate be canceled or coverage reduced before
the expiration date thereof, the insurer affording coverage shall provide thirty(30) days'
advance written notice to the City of Cupertino by certified mail, Attention: City
Manager." It is agreed that Consultant shall maintain in force at all times during the
performance of this Agreement all appropriate coverage of insurance required by this
Agreement with an insurance company that is,acceptable to City and licensed to do
insurance business in the State of California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
Consultant 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: $500,000
each occurrence
$1,000,000
aggregate-all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate limits in
the amounts of$1,000,000 will be considered equivalent to the
required minimum limits shown above.
(3) Automotive:
Comprehensive automotive liability coverage in the following
minimum limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
(4) Professional Liability:
Professional liability insurance which includes coverage for the
professional acts, errors and omissions of Consultant in the
amount of at least$1,000,000.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of 1 oss due to any of the perils for which
he/she has agreed to provide comprehensive general and automotive liability insurance,
Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants
to City, on behalf of any insurer providing comprehensive general and automotive
liability insurance to either Consultant or City with respect to the services of Consultant
herein, a waiver of any right to subrogation which any such insurer of said Consultant
may acquire against City by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Consultant at any time during the term hereof should fail to secure or maintain
the foregoing insurance, City shall be permitted to obtain such insurance in the
Consultant's name or as an agent of the Consultant and shall be compensated by the
Consultant for the costs of the insurance premiums at the maximum rate permitted by
law and computed from the date written notice is received that the premiums have not
been paid.
D. ADDITIONAL INSURED:
City, its City Council,boards and commissions, officers,employees and
volunteers shall be named as an additional insured under all insurance coverages,
except any professional liability insurance, required by this Agreement. The naming of
an additional insured shall not affect any recovery to which such additional insured
would be entitled under this policy if not named as such additional insured. An
additional insured named herein shall not be held liable for any premium, deductible
portion of any loss, or expense of any nature on this policy or any extension thereof.
Any other insurance held by an additional ins ured shall not be required to contribute
anything toward any loss or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient to
protect Consultant. Consultant is advised to confer with Consultant's insurance broker
to determine adequate coverage for Consultant.
10. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to perform
the services required by this Agreement. Consultant may be required to fill out a
conflict of interest form if the services provided under this Agreement require
Consultant to make certain governmental decisions or serve in a staff capacity as defined
in Title 2, Division 6,Section 18700 of the California Code of Regulations.
11. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease,:hypothecate, or transfer this Agreement, or
any interest therein, directly or indirectly,by operation of law or otherwise,without
prior written consent of City. Any attempt to do so without said consent shall be null
and void, and any assignee, sublessee,hypothecate or transferee shall acquire no right or
interest by reason of such attempted assignment,hypothecation or transfer. However,
claims for money by Consultant from City under this Agreement may be assigned to a
bank, trust company or other financial institution without prior written consent.
Written notice of such assignment shall be promptly furnished to City by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture
or syndicate or cotenancy,which shall result in changing the control of Consultant, shall
be construed as an assignment of this Agreement. Control means fifty percent(50%) or
more of the voting power of the corporation.
12. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City,is obtained, only those people and
subcontractors whose names and resumes are attached to this Agreement shall be used
in the performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors shall
be required to furnish proof of workers'compensation insurance and shall also be
required to carry general, automobile and professional liability insurance in reasonable
conformity to the insurance carried by Consultant. In addition, any work or services
subcontracted hereunder shall be subject to each provision of this Agreement.
13. PERMITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits, certificates and licenses including,but not
limited to, a City Business License, that may be required in connection with the
performance of services hereunder.
14. REPORTS:
A. Each and every report, draft, work product, map, record and other
document,hereinafter collectively referred to as"Report", reproduced,prepared or
caused to be prepared by Consultant pursuant to or in connection with this Agreement,
shall be the exclusive property of City. Consultant shall not copyright any Report
required by this Agreement and shall executE,appropriate documents to assign to City
the copyright to Reports created pursuant to this Agreement. Any Report,information
and data acquired or required by this Agreement shall become the property of City, and
all publication rights are reserved to City. Consultant may retain a copy of any report
furnished to the City pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in execution or
implementation of:
(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to the original project; and/or
(4) Other City projects as appropriate.
C. Consultant shall, at such time and in such form as City may require,
furnish reports concerning the status of services required under this Agreement.
D. All Reports required to be provided by this Agreement shall be printed
on recycled paper. All Reports shall be copied on both sides of the paper except for one
original,which shall be single sided.
E. No Report, information or other data given to or prepared or assembled
by Consultant pursuant to this Agreement shall be made available to any individual or
organization by Consultant without prior approval by City.
15. RECORDS:
Consultant shall maintain complete and accurate records with respect to sales,
costs,expenses, receipts and other such information required by City that relate to the
performance of services under this Agreement.
Consultant shall maintain adequate records of services provided in sufficient
detail to permit an evaluation of services. All such records shall be maintained in
accordance with generally accepted accounting principles and shall be clearly identified
and readily accessible. Consultant shall provide free access to such books and records to
the representatives of City or its designees at all proper times, and gives City the right to
examine and audit same, and to make transcripts therefrom as necessary, and to allow
inspection of all work, data, documents, proceedings and activities related to this
Agreement. Such records, together with supporting documents, shall be kept separate
from other documents and records and shall be maintained for a period of three (3)
years after receipt of final payment.
If supplemental examination or audit of the records is necessary due to concerns
raised by City's preliminary examination or audit of records, and the City's
supplemental examination or audit of the records discloses a failure to adhere to
appropriate internal financial controls, or other breach of contract or failure to act in
good faith, then Consultant shall reimburse City for all reasonable costs and expenses
associated with the supplemental examination or audit.
16. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement
shall be given in writing and conclusively shad be deemed served when delivered
personally or on the second business day after the deposit thereof in the United States
Mail, postage prepaid,registered or certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Consultant to City shall be
addressed to City at:
City of Cupertino
10300 Torre Avenue
Cupertino CA 95014
Attention:Albert Salvador
All notices, demands, requests, or approvals from City to Consultant shall be
addressed to Consultant at:
4 Leaf, Inc.
2100 Rheem Dr,Suite A
Pleasanton, CA 94588
17. TERMINATION:
In the event Consultant fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, Consultant shall be deemed in default
in the performance of this Agreement. If such default is not cured within within the
time specified after receipt by Consultant from City of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, City
may terminate the Agreement forthwith by giving to the Consultant written notice
thereof.
City shall have the option, at its sole discretion and without cause, of terminating
this Agreement by giving seven(7) days' prior written notice to Consultant as provided
herein. Upon termination of this Agreement, each party shall pay to the other party that
portion of compensation specified in this Agreement that is earned and unpaid prior to
the effective date of termination.
18. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules
and regulations enacted or issued by City.
19. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State
of California excepting any choice of law rule;which may direct the application of laws
of another jurisdiction. The Agreement and obligations of the parties are subject to all
valid laws, orders, rules, and regulations of the authorities having jurisdiction over this
Agreement(or the successors of those authorities)
Any suits brought pursuant to this Agreement shall be filed with the courts of
the County of Santa Clara, State of California.
20. ADVERTISEMENT:
Consultant shall not post,exhibit, display or allow to be posted,exhibited,
displayed any signs, advertising, show bills, lithographs,posters or cards of any kind
pertaining to the services performed under this Agreement unless prior written
approval has been secured from City to do otherwise.
21. WAIVER:
A waiver by City of any breach of any term, covenant, or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained herein,whether of the same or a different
character.
22. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement or
implied covenant shall be held to vary the provisions hereof. Any modification of this
Agreement will be effective only by written execution signed by both City and
Consultant.
22. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement
shall be deemed to be enacted herein, and the Agreement shall be read and enforced as
though each were included herein. If through mistake or otherwise, any such provision
is not inserted or is not correctly inserted, the Agreement shall be amended to make
such insertion on application by either party.
23. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the
Agreement and in no way affect, limit or amplify the terms or provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CONSULTANT CITY OF CUPERTINO
4Leaf,Inc A Municipal Corporation
Title P 10 tame: Aarti Shrivastava
Date � '� i Title:Director, Community Development
Date:
RECOMlv1ENDED F R APPROVAL:
Alirert Salvador, Building Official
AP OVED AS TO ORM:
��l Carol Korade, City Attorney
ATTEST`:
Grace Schmidt, City Clerk
Attachments: Exhibit A-Scope of Services and Compensation
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
110-7503-9332 $93,660.00. /
PO #
vvu O
EXHIBIT A
Scope of Services and Compensation
1.Scope of Services: Consultant shall provide combination building inspection services
as requested by City for a development project located at 20030 Stevens Creek
Boulevard, Cupertino, commonly referred to as the Biltmore Apartments Adjacency
Project(the "Project"), including structural, life safety, CalGreen, plumbing,electrical
and mechanical inspections. .
Inspection staff assigned to the Project by Consultant shall be preapproved by the City
of Cupertino Chief Building Official, and shall be removed immediately upon City's
request and replaced with an approved substitute.
2. Compensation:
City shall compensate Consultant for professional services in accordance with the terms
and conditions of this Agreement based on the rates and compensation schedule set
forth below. Compensation shall be calculated based on the hourly rates set forth below
up to the not to exceed budget amount set forth below.
The compensation to be paid to Consultant under this Agreement for all services
described under section 1 of this Exhibit and reimbursable expenses shall not exceed a
total of Ninety Three Thousand Six Hundred;Sixty dollars ($93,660.00).Any work
performed or expenses incurred for which payment would result in a total exceeding the
maximum amount of compensation set forth herein shall be at no cost to the City.
Rates:$150.00/hour,for an estimated 892 hours, not to exceed$93,660.
Title: Combination Inspection Services
Invoices
In order to request payment, Consultant shall submit monthly invoices to the CITY
describing the services performed and the applicable charges(including a summary of
work performed during that quarter,personnel who performed the services, hours
worked, task(s)for which work was performed).
Reimbursable Expenses
Administrative, overhead, secretarial time or overtime,word processing,photocopying,
in house printing,insurance and other ordinary business expenses are included within
the scope of payment for services and are not reimbursable expenses.
Additional Services
Consultant shall provide additional services outside of the services identified in Exhibit
A only by advance written authorization from the City's Project Manager prior to
commencement of any additional services. Consultant shall submit, at the Project
Manager's request, a detailed written proposal including a description of the scope of
additional services, schedule, and proposed maximum compensation.
4LEAF,INC.
Estimated Fees For Building Inspection Services for 20030 Stevens Creek Biltmore Apartments
Task No.Description Qty Units hourly rate Total Cost Assumptions
1.0 Combination Building Inspection Services
Assumes 20 Hours per week from 516113-2/7/14 640 hours $105 $67,200 Assumes 4 hours per day
Assumes 12 Hours per week from 2/10/14-6/30/14 252 hours $105 $26,460 Assumes 4 hours per day
Task No.1 Subtotal: $93,660*
*Estimate assumes work schedule of May 6,2013-June 30,2014. Estimate does not include weekends or overtime. Estimate is
derived from Construction Schedule provided to 4LEAF by Prometheus Real Estate Group on 2/20/13 and revised to include the
remaining dates in the fiscal year as requested by the City of Cupertino. Dates were revised to reflect actual start of construction.
Overtime and Premium time(upon approval from Building Official)will be charged as follows:
Regular lime(work begun after 5AM of before 4PM) 1 x hourly rate
Night Time(work begin after 4PM or before 5AM) 1.125 x hourly rate
Overtime(over 8 hours Sal or 1'8 hour Sum) 2 x hourly rate
Overtime(over 8 hours Sun or Holu vsy 3 x hourly rate
All invoices will be supplied Monthly to the City of Cupertino
nt v ,,,t „lhy-?LEAar. r ti_
the specificuliuns,as well us fir murk over the'esommed hours. Owner should'budget appropriate amortlrl for hudgeiaqpurposes.
Services will be billed on a time and materials basis with four hour minimum charges per visit.All overtime must be approved by
the City Building Official.
Site visits require a four hour minimum charge(t.e.5420 daily minimum)4LEAFs hourly inspection rate is 5105 per hour
This estimate assumes jour(4)hours per day unless otherwise notified. .Slaffshall be approved by the City of Cupertino Building Official
Engineering Services are not a part of this estimate. lfdesired,Engineering Services will be charged at an hourly rate of$175 per hour