16-105 Cannon Design Group, On-Call Design Review Consultant ServicesFIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CUPERTINO
AND CANNON DESIGN GROUP FOR "ON CALL" DESIGN REVIEW CONSULTANT
SERVICES
This First Amendment to the Agreement between the City of Cupertino and Cannon
Design Group, for reference dated May 16, 2017, is by and between the CITY OF CUPERTINO,
a municipal corporation (hereinafter "City") and Cannon Design Group a California Corporation
("Consultant") whose address is 700 Larkspur Landing Circle, Suite 199, Larkspur, California
94939, and is made with reference to the following:
RECITALS:
A. On July 1, 2016, an agreement was entered into by and between City and
Consultant (hereinafter "Agreement") for "on call" design review services.
B. City and Consultant desire to modify the Agreement on the terms and conditions
set forth herein.
NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as
follows:
1. Paragraph 3 of the Agreement is modified to read as follows:
Consultant shall be compensated for the services performed pursuant to this
Agreement in an amount up to and not to exceed THIRTY-FIVE THOUSAND
dollars ($35,000.00) based on the rates and terms set forth in Exhibit "A," attached to
the original Agreement.
2. Except as expressly modified herein, all other terms and covenants set forth in the
Agreement shall remain the same and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this modification of
Agreement to be executed.
CONSULTANT
By ~6-Y~-
Title /13f=.>11?.PNT
Date tJ7 /'2.Z//7 ---"----,,,----,... ~~----
CITY OF CUP~O ,tJ__
By ~ ~()f/l{t-,
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RECOMMENDED FOR APPROVAL:
By~~
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APPROVED AS TO FORM:
~ ~ City Attorney
EXPENDITURE DISTRIBUTION
PO #2017 -194 Account: 100-71-701 700-702
Original Contract: $25,000.00
Amendment# : $10,000.00
Total: $35,000.00
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND CANNON
DESIGN GROUP FOR "ON-CALL" DESIGN REVIEW CONSULT ANT
SERVICES
THIS AGREEMENT, is entered into this 1st day of July, 2016, by and between the
CITY OF CUPERTINO, a California municipal corporation ("City"), and Cannon Design
Group, a California Corporation whose address is 700 Larkspur Landing Circle, Suite 199,
Larkspur, California 94939 (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 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 "on-call" design
review consultation services upon the terms and conditions herein.
NOW, THEREFORE, the Parties mutually agree as follows:
1. TERM
The term of this Agreement shall commence on July 1, 2016, and shall terminate
on June 30, 2017, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall perform each and every service 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
an amount up to and not to exceed TWENTY FIVE THOUSAND dollars ($25,000.00)
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 Bay
Area and agrees that all services shall be performed by qualified and experienced personnel
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Cannon Design Group "On-Call" Design Review Consultant Services Contract, FY 16-17
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 an 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
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
completion of the Services or termination of this Contract.
10. INSURANCE:
A. General Reguirements. On or before the commencement of the term of this
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cannon Design Group "On-Call" Design Review Consultant Services Contract, FY 16-17
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 "B". 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 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 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 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.
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 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.
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Cannon Design Group "On-Call" Design Review Consul tant Services Contract, FY 16 -1 7
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 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.
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. 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.
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 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.
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Cannon Design Group "On-Call" Design Review Consultant Services Contract, FY 16-17
14. 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.
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: (I) 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, 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.
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
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.
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Cannon Design Group "On-Call" Design Review Consultant Services Contract, FY 16-17
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 ink jet 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:
Cannon Design Group
Larry Cannon
700 Larkspur Landing Circle, Suite 199
Larkspur, CA 94939
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
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Cannon Design Group "On-Call" Design Review Consultant Services Contract, FY 16-17
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 terminating 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
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
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Cannon Design Group non-Call" Design Review Consultant Services Contract I FY 16-17
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 terms 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
Cannon Design Group
By e?(t
Title fre s j cL~11-C-
Date ~/ 11 3/ I"
ATTEST:
Exhibits:
CITY OF CUPERTINO
A Municipal Corporation
-~~~
""J3y ~rivastava
Title Assistant City Manager
Date g. /s ( c6
Exhibit "A"-Scope of Services, Schedule of Performance and Compensation
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
PO #2017-\ £1 L{ $25,000.00
Account number:
100-71-701 700-702
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Cannon Design Group non-Call" Design Review Consultant Services Contract, FY 16-1 7
Exhibit A
Scope of Services and Compensation
l Scope of Services: Consultant shall provide "on-call" design review consulting services as
requested by City for various projects in Cupertino.
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.
11 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 up to and shall not exceed a total of TWENTY
FIVE THOUSAND DOLLARS (25 ,000.00). 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.
III. Rates:
Hourly Rate: $135/hour, on an as-needed basis, up to and not to exceed $25,000.00
IV. Title: "On-Call" Design Review Consultation Services
V. 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).
VI. Reimbursable Expenses
Normal project related reimbursable expenses such as printing, postage, delivery services, long
distance phone calls, facsimile transmissions, mileage, meeting attendance, and special project-
related supplies. Direct expenses will be billed at direct expenses plus 15%.
VII. 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.
9