16-035 Schoolhouse Services, 9212 Report on The Oaks RedevelopmentAGREEMENT BETWEEN THE CITY OF CUPERTINO AND SCHOOLHOUSE
SERVICES FOR 9212 REPORT ON THE OAKS REDEVELOPMENT
THIS AGREEMENT, is entered into this 29th day of March, 2016, by and
between the CITY OF CUPERTINO, a California municipal corporation ("City"), and
Schoolhouse Services, a California Corporation whose address is 2255 Tioga Drive,
Menlo Park, California 94025 (hereinafter referred to as "Consultant") (collectively
referred to as the "Parties").
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.
C. Consultant possesses the sldll, experience, ability, background,
certification and lrnowledge 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 9212 report for
The Oaks project upon the tenns and conditions herein.
NOW, THEREFORE, the Parties mutually agree as follows:
1. TERM
The term of this Agreement shall connnence on March 29, 2016, and shall
terminate on December 31, 2016, unless terminated earlier as set forth herein.
'
2. SERVICES TO BE PERFORMED
Consultant shall perform each and every service set forth in Exhibit "A" pursuant
to the schedule of performance set forth in Exhibit "A," attached hereto and incorporated
herein by this reference.
3. COMPENSATION TO CONSULTANT
Consultant shall be compensated for services performed pursuant to this
Agreement in a total amount not to exceed NINE THOUSAND FIVE HUNDRED dollars
($9,500.00) based on the rates and terms set forth in Exhibit "A," which is attached hereto
and incorporated herein by this reference.
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 required by this Agreement in a manner
commensurate with the prevailing standards of like professionals in the San Francisco
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Schoolhouse Services for 'l'he Oaks, 3-29-16
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.
7. 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.
8. NON-DISCRIMINATION
Consistent with City's policy prohibiting harassment and discrimination,
Consultant agrees that it shall not harass or discriminate against 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, sexual orientation, or any other protected class. Consultant
agrees that any and all violations of this provision shall constitute a material breach of
this Agreement.
9. HOLD HARMLESS
IZl Standard Indemnification:
Consultant shall, to the fullest extent allowed by law and without limitation of the
provisions of this Agreement related to insurance, 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,
whether physical, emotional, consequential or otherwise, arising out, pertaining to, or
related to the negligent 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. The acceptance of the Services by City shall not operate
as a waiver of the right of indemnification. The provisions of this Section survive the
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Schoolhouse Services for The Oaks, 3-29-16
completion of the Services or termination of this Contract.
10. INSURANCE:
A. General Requirements. 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 the requirements listed in Exhibit "D". 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." 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.
B. Subrogation Waiver. Consultant agrees that in the event ofloss 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 or maintain insurance. 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 whtten
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 detennine adequate coverage for Consultant.
F. Maximum Coverage and Limits. It shall be a requirement under this
Agreement that any available insurance proceeds broader than or in excess of the
specified minimum Insurance coverage requirements and/or limits shall be available to
the additional insured City. Furthermore, the requirements for coverage and limits shall
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Schoolhouse Services for The Oaks, 3-29-16
be the minimum coverage and limits specified in this Agreement, or the broader coverage
and maximum limits of coverage of any insurance policy or proceeds available to the
named insured, whichever is greater.
11. CONFLICT OF INTEREST
Consultant warrants that it presently has no interest, and will not acquire any
interest, direct or indirect, financial or otherwise, that would conflict in any way with the
performance of this Agreement, and that it will not employ any person having such an
interest. Consultant agrees to advise City immediately if any conflict arises and
understands that it may be required to fill out a conflict of interest fonn if the services
provided under this Agreement require Co.nsultant 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.
12. 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.
13. SUBCONTRACTORAPPROVAL
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 perfonnance 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.
Consultant agrees to include with all subcontractors in their subcontract the same
requirements and provisions of this Agreement including the indemnity and insurance
requirements to the extent they apply to the scope of the subcontractor's work.
Subcontractors hired by Consultant agree to be bound to Consultant and City in the same
manner and to the same extent as Consultant is bound to City under this Agreement.
Subcontractor further agrees to include these same provisions with any sub-
subcontractor. A copy of the Owner Contract Document Indemnity and Insurance
provisions will be furnished to the subcontractor upon request. Consultant shall require
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Schoolhouse Services for The Oaks, 3-29-16
all subcontractors to provide a valid certificate of insurance and the required
endorsements included in the agreement prior to commencement of any work and will
provide proof of compliance to City.
14. PERMITS AND LICENSES
Consultant, at his/her sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate pennits, certificates and licenses including, but not
limited to, a City Business License, that may be required in connection with the
performance of services hereunder.
15. 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 City deems 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, infonnation 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.
16. 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, 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 Consultant receives final payment
from City for all services required under this agreement.
If supplemental examination or audit of the records is necessary due to concerns
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Schoolhouse Services for The Oaks, 3-29-16
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.
17. NONAPPROPRIATION
This Agreement is subject to the fiscal provisions of the Cupertino Municipal
Code and Agreement will terminate without any penalty (a) at the end of any fiscal year
in the event that funds are not appropriated for the following fiscal year, or (b) at any
time within a fiscal year in the event that funds are only appropriated for a portion of the
fiscal year and funds for this Agreement are no longer available. This Section shall take
precedence in the event of a conflict with any other covenant, term, condition, or
provision of this Agreement.
18. ENVIRONMENTALLY PREFERABLE PURCHASING
Consultant shall comply with the City's Environmentally Preferable Procurement
Policy whenever practicable in completing any work under this agreement, including but
not limited to:
• Using paper products made with recycled content and
recycled/remanufactured toner and inkjet cartridges;
• Printing with soy or low volatile organic compounds (VOC) inks;
• Using energy-star compliant equipment;
• Using cleansers and working with janitorial contractors to meet Green Seal's
Industrial and Institutional Cleaners Standard; and
• Ordering supplies electronically and practicing other internal waste reduction
and reuse protocols.
19. 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 shall be addressed as follows:
TO CITY:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Aarti Shrivastava, Assistant City Manager
TO CONSULTANT:
Schoolhouse Services
2255 Tioga Drive
Menlo Park, CA 94025
Attention: J. Richard Recht
Schoolhouse Services for The Oaks, 3-29-16
Page 6 oflO
20. 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 Consultant fails to cure the default within the time
specified and according to the requirements set forth in City's written notice of default,
and in addition to any other remedy available to the City by law, the City Manager may
terminate the Agreement by giving Consultant written notice thereof, which shall be
effective immediately. The City Manager shall also have the option, at its sole discretion
and without cause, of tenninating this Agreement by giving seven (7) calendar days' prior
written notice to Consultant as provided herein. Upon receipt of any notice of
termination, Consultant shall immediately discontinue performance.
City shall pay Consultant for services satisfactorily performed up to the effective
date of termination. If the termination if for cause, City may deduct from such payment
the amount of actual damage, if any, sustained by City due to Consultant's failure to
perform its material obligations under this Agreement. Upon termination, Consultant
shall immediately deliver to the City any and all copies of studies, sketches, drawings,
computations, and other material or products, whether or not completed, prepared by
Consultant or given to Consultant, in connection with this Agreement. Such materials
shall become the property of City.
21. COMPLIANCE
Consultant shall comply with all state or federal laws and all ordinances, rules,
policies and regulations enacted or issued by City.
22. 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 Superior Court of the County of Santa Clara, State of
California.
23. 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.
24. 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.
25. INTEGRATED CONTRACT
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Schoolhouse Services for The Oaks, 3-29-16
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Parties, 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.
26. AUTHORITY
The individual( s) executing this Agreement represent and warrant that they have
the legal capacity and authority to do so on behalf of their respective legal entities.
27. 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.
28. CAPTIONS AND TERMS
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 ten11S or provisions of this
Agreement. All unchecked boxes do not apply to this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CONSULTANT
Schoolhouse Services
Schoolhouse Services for The Oaks, 3-29-16
CITY OF CUPERTINO
A Municipal Corporation
~-~-· ·~~((..-+"'V_..~~-· __ -_-.-·····
D Over $175,000~ Council Approval Required
D Over $45,000-Department Head Approval Required
lZl Up to $45,000-Designated Supervisor Approval Required
REW~ORAPPROVAL
Catarina Kidd, Senior Planner
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Exhibits: (Check box for exhibits that apply to this contract and attach)
~ Exhibit "A" -Scope of Services
0 Exhibit "B"-Schedule of Performance
0 Exhibit "C" -Compensation
~ Exhibit "D" -Insurance Requirements and Proof of Insurance
0 Exhibit "E" -Mandated Reporting Acknowledgement
0 Exhibit "F" -Background/Fingerprint/TB Declaration
0 Exhibit "G"-Nondiscrimination-State/Federal/HUD funded project
0 Exhibit "H'' -Request for City Manager to Waive Informal Bidding Requirements
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
PO #2016-503
100-71-702 700-702
Total: $9,600.00
9
March 29, 2016
Aarti Shrivastava
choolhouse
Economists
Director of Community Development
City of Cupertino
Hello Aarti ,
Exhibit A
p erv1ces
flanners
A project has been has proposed for more intensive development at the 8.1 acre site of the Oaks
Shopping Center at Hwy.85 and Stevens Creek Blvd. A General Plan amendment would
facilitate development of a 280,000 square foot office building, a hotel, 270 residential units
(including 40 senior age-restricted market-rate and 30 below-market-rate senior age restricted
units), and 47,660 square feet of retail.
As usual, the community expects consideration of what the impacts of the project would be on
the local school districts, Cupertino Elementary and Fremont Union High School. Schoolhouse
has prepared evaluations of this nature frequently in past years. The scope of such a report on
this project would be similar to that of the prior studies.
The work tasks would include:
Communication with the developer and City of Cupertino staff and consultants
regarding characteristics of the proposed development. The information sought would
focus especially on the housing units, including their size, expected sales or rental
prices (relevant to property tax revenues), design features, and projected development
timing.
Communication with Tom Williams (Enrollment Projection Consultants), the
demographer for both districts, regarding up-to-date data about student generation of
various types of housing in the districts and projected enrollment loads at the various
schools the students residing in the residences would attend.
Communication with (1) Chris Jew, Assistant Superintendent of the Cupertino District,
and (2) Jason Crutchfield, Director of Business Services, and Christine Mallery,
Director of Facilities, for the Fremont Union District, regarding current enrollments and
enrollment capacities at the relevant schools.
Updating of other relevant information, including construction costs, fiscal parameters,
etc.
A draft report will be prepared similar to previous reports; the draft report would then be
edited appropriately in response to feedback. It would begin with a brief summary page.
The body of the report would be structured with a section describing the student generation
Aarti Shrivastava, page 2
rates of the housing units and the projects enrollment impacts, followed by infonnation about
the affected schools, including their enrollment capacity and comparison of this capacity with
projected future enrollment with and without the project. The remainder of the report would
address the financial impacts of the projects on the school districts, including both (1) capital
facilities costs and revenues and (2) operating costs and revenues.
The cost for these services would be $9,500. The complexity of this project is similar to that of
the Vallco project, but this cost is lower due to the fact that some of the information will not have
to be updated.
Unless unforeseen complications are encountered, a draft report would be ready for review
within 30 days from word to proceed.
Please contact me if you have any questions or if any additional information would be helpful.
Thank you,
Dick
J. Richard Recht
cc: Geoff Bradley, M-Group
2255 Tioga Drive o Menlo Fark, CA.9402'
w fax: 6 J0.8;+.o1 o+
Exhibit D
Insurance Requirements and Proof of Insurance
Proof of insurance coverage described below is attached to this Exhibit, with City named
as additional insured.
Consultant shall maintain the following minimum insurance coverage:
A. 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:
(4)
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
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.
10