15-007 Economic & Planning Systems, consultant services for Community Benefits Program 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.cupertino.org
February 23, 2015
_Economic &Planning Systems, Inc.
Attention:David Zehnder
2295 Gateway Oaks Drive, Suite 250
Sacramento, CA 95833
Re: Consultant services for Community Benefits program.
A'fully executed copy of the agreement with the City of Cupertino is enclosed. If you
have any questions or need additional information, please contact Angela Tsui in the
City Manager's Office at(408) 777-7607
Sincerely,
Andrea Sanders
Senior Office Assistant
Enclosure
cc: City Manager's Office
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND ECONOMIC
& PLANNING SYSTEMS, INC. FOR CONSULTANT SERVICES FOR
COMMUNITY BENEFITS PROGRAM
THIS AGREEMENT, for reference dated December 19, 2014 is by and between
CITY OF CUPERTINO,.a municipal corporation(hereinafter referred to as "City"), and
Economic&Plannina_Sy_stems, Inc., a California corporation whose address is 2295
Gateway Oaks Drive, Suite 250, Sacramento, CA 95833(hereinafter referred to as
"Consultant"), and is made with reference to the following:
w
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
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 Dem ncei he�.2-4-2 a
shall terminate on completion of the initial memorandum, on or before arch 31�=
2015 ��
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"B"which is attached hereto and
incorporated herein by this reference, but not to exceed$8,000 as authorized in
writing by City staff. Optional tasks shall be authorized prior to performance.
Payment shall be made by checks drawn on the treasury of the City, to be taken ftom the
General Fund, Economic Development Division account.
Payment will be made by the City in the following manner: On the first day of
each month, Consultant shall submit a written estimate of the total amount of work done
the previous month.. Payment shall be made for 90% of the value of the work. The City
shall retain 10% of the value of the work as partial security for the completion of the
work by Consultant. Retained amounts shall be paid to Consultant within 30 days of
acceptance by the City of the project.- Payment shall not be construed as acceptance of
defective work. No interest will be paid to Consultant on retained funds.
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 mariner 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:
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 thein, including any injury to or death of any person or
damage to property or other liability of any nature, whether physical, emotional,
consequential or otherwise, arising out, pertaining to, or related 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.
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 the extent that the damage is caused by the sole negligence or willful
misconduct of City, its agents or employees.
B. Claims for Other Liability. Consultant shall, to the fullest extent
allowed by law, with respect to all services performed in connection with the
Agreement indemnify, defend, and hold hamless 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) Liabili :
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 loss 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 insured 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 shall 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 Ave.
Cupertino CA 95014
Attention: Angela Tsui, Economic Development Manager
All notices, demands,requests, or approvals from City to Consultant shall be
addressed to Consultant at:
Economic&Planning Systems, Inc.
2295 Gateway Oaks Drive, Suite 250
Sacramento,CA 95833
Attention: David Zehnder
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 rules 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 terin, 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
Economic & Planning Systems, Inc. A Municipal Corporation
By: Walter Kieser By: Angela Tsui
Title: Principal Title: Economic Development Manager
Date I I ��I I Date /r'1�
RECOMMENDED FOR APPROVAL:
Title ` elfy /Ll�w
AP VED AS TO FORM:
Lill-
City
Attorney
ATTEST:
City Clerk
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Exhibit"A"
This Scope of Work is designed to provide the City of Cupertino (City) with a strategy that can be
employed to achieve community benefits from new development based on the value that accrues
to private developers who obtain planning entitlements.
Phase I
Project Initiation
EPS will host a conference tali with,City staff to confirm project goals, discuss the context for the
project, and to request data and relevant documentation.
Best Practices Memorandum
Municipalities as diverse as Berkeley, Emeryville, Santa Monica, San Diego, and San Jose have
established or considered the potential for value-based community benefits programs. In this
task, EPS will author a white paper that provides an overview of community benefits programs in
California and reviews up to three value-based community benefits programs. This effort will
focus on approaches having potential merit for the City of Cupertino.
The white paper will describe the range of value-based benefit techniques and discuss pros and
cons related to applicable development incentives, and the means through which the value of
those incentives is captured by local jurisdictions. From this work, EPS will identify potential
approaches and specific program elements that the City should consider for further analysis.
EPS will produce the white paper by mid-January. EPS will hold a meeting or conference call
with the City to discuss findings and potential next steps.
Coordination and Meetings
EPS anticipates coordination of Phase I tasks primarily by conference call, including a project
initiation call and periodic check-in calls during the work period. After completing the white
paper, EPS staff will discuss the findings of the best practices research with key City staff, which
will be oriented to refining any next steps.
Exhibit"B"
Phase I Project Budget and Key Personnel
The proposed budget to complete the Phase I Scope of Work is $8,000. The budget estimate
covers all costs associated with the work, materials,travel, and meetings, as described above.
EPS charges for its services on a direct-cost (hourly billing rates plus direct expenses), not-to-
exceed basis. Therefore, you will be billed only for the work completed up to the authorized
budget amount. Travel, data, or reproduction expenses will be billed at cost, and invoices are
submitted monthly and are payable on receipt. If additional work or meetings are required, EPS
will request authorization for additional budget with the understanding that terms will be
negotiated in good faith. EPSs Hourly Billing Rates and Standard Terms and Conditions are
attached as part of this agreement.
EPS will be represented by Managing Principal David Zehnder and Executive Vice President
Benjamin Sigman. Additional EPS staff also may assist as needed.
California Offices
Managing Principal $245-$300
Senior Principal $300
Principal $245-$250
Executive/Senior Vice President $210-$215
Vice President $190-$200
Senior Technical Associate $175-$195
Senior Associate $165-$175
Associate $140
Research Analyst II $90-$120
Research Analyst I $80485
Production and Administrative Staff $80-$85