16-123 City Data Services, Data Management Services for The Cupertino Housing ProgramAGREEMENT BETWEEN THE CITY OF CUPERTINO AND CITY DATA
SERVICES FOR DATA MANAGEMENT SERVICES FOR THE CUPERTINO
HOUSING PROGRAM
THIS AGREEMENT, is entered into this 1st day of July, 2016, by and between the
CITY OF CUPERTINO, a California municipal corporation ("City"), and City Data
Services, a California Corporation whose address is 403 Alvarado Street, Brisbane,
California, 94005 (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 data management
services for the Cupertino housing program 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" 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 FIVE THOUSAND FOUR HUNDRED dollars ($5,400.00)
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
Page I of JO
Consultant contract-City Data Services, FY 16-17
commensurate w ith the prevailing standards of li ke professionals in the San Francisco Bay
Area and ag rees that a ll services shall be performed by qualified and expe ri enced personnel
who are not employed by the City nor have any cont ractual relationship with City.
6. INDEPENDENT PARTIES
City and Consultant int end that the relationship between them created by this
Agreement is that of independent contractor. The manner and means of
conducting the work are under the control of Consu lt ant , 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 acqu ir ed by virtue of Consultant's
services. None of the benefits provided by City to its employees, including but not limited
to, unemployment in surance, workers' compensation plans, vacation and sick leave are
available from City to Consultant, its emp loyees or agents. Deductions sha ll not be made
for any state or federal taxes, FICA payments, PERS payments , or other purposes normally
associated with an employer -emp loyee relationship from any fees due Consultant.
Payments of the above items , if required , are the responsibility of Consu lt ant.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA)
Consultant assumes any and all responsibility for verifying the identit y and
employment autho ri zation of all of his /her employees performing work hereunder,
pursuant to a ll app li cab le IRCA or other federa l, or state rules and regulations. Consu lt ant
sha ll ind emnify and hold City harmless from and aga in st any loss, damage , li ability , 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 Cons ultant or Consultant's emp loyee or subcontractor on the basis
of race, religious creed , co lor, national origin , ancestry, handicap, disability, marital status,
pregnancy , sex, age , sexua l orie nt at ion , or any other protected class. Consu lt ant agrees that
any and all v io lati ons of this provision sha ll 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 Ag reement, indemnify , defend , and hold harmless the City and its
officers, officia ls, agents , emp loyees and volunteers from and against any and all liability ,
claims, actions, causes of act ion or demands whatsoever against any of them , including
any injury to or death of any person or damage to property or ot her li abi lit y of any nature ,
whether physical, emotiona l, consequential or ot herwise, ar ising out , pertaining to, or
related to the performance of this Agreement by Consu ltant or Consu ltant's emp loyees,
office rs, officials , agents or independent contractors. Such costs and expenses shall include
reasonable attorneys' fees of counse l 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.
Page 2 of 10
Consultant contract· City Data Services, FY 16 -17
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 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 minim.um
coverage and limits specified in this Agreement, or the broader coverage and maximum
Page3 oflO
Co n s u ltant con t r act-Ci ty Data Servi ces , FY 1 6-17
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 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 fmancial 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
Pa ge 4of 10
Consultant contract-City Data Services, FY 16-17
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 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: (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, 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
Pages of 10
Consultant contract-City Data Services , FY 16-17
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 CONSULT ANT:
City Data Services
403 Alvarado Street
Brisbane, CA 94005
Attention: Steve Crounse
20. TERMINATION
Consultant contract-City Data Services , FY 16-17
Page 6 oflO
In the event Consultant fails or refuses to perform any of the provision s hereof at
the time and in the manner required hereunder, Consultant shall be deem ed 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 noti ce of default , and
in addition to any other remedy available to the City by law , the City Manager ma y
terminate the Agreement by giving Consultant written notice thereof, whi ch shall be
effective immediatel y. The City Manager shall also have the option, at its so le 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 is for cause, City ma y deduct from such payment
the amount of actual damage , if any, sustained by City due to Consultant 's failure to
perform its material obligations und er this Agreement. Upon termination ,
Consultant shall immediatel y deliver to the City any and all copies of st udies ,
sketc hes , drawings, computations, and other material or product s, whet her or not
completed, prepared by Consultant or g iven to Consultant, in connection with this
Agreement. Such materials shall become the property of City.
2 I. COMPLIANCE
Consultant shall comply with all state or federal laws and all ord inance s, rules ,
policies and regulations enacted or issued by City .
22 . CONFLICT OF LAW
This Agreement shall be interpreted und er , and enforced by the la ws of the State of
California excepting any choice of law rule s which ma y direct the app lic atio n of laws of
another jurisdiction. The Agreement and obligations of the pattie s are subj ect to all valid
laws, orders, rules , and regulations of the authorities having jurisdiction over this
Agreement (or the successors of those authorities). Any suits brou ght 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, di s play or allow to be posted, exhibited ,
displa ye d any signs, advettising, show bill s, litho gra phs, posters or cards of any kind
pertaining to the services performed under thi s Agreement unles s prior wr itt en 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 co ntained herein , whet her of the same or a different cha rac ter.
25. INTEGRATED CONTRACT
This Ag re eme nt represents the full and complete understandin g of eve ry kind or
nature what soever between the Patties, and all preliminary negotiations and agreements of
Pa ge 7 of to
Consultant contract-City Data Services, FY 16-17
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 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
CityDa ~
By .-~··
Title 7
.
Date ~/ 1, // "2
APPROVED AS TO FORM:
~ City Attorney
ATTEST:
b~stwlf
City Clerk / · {1/ b
Consultant contract-City Data Services , FY 16-1 7
Page8 of IO
CITY OF CUPERTINO
A Municipa_I C~or_ation
By ~OfttJatk.
Tit1 ~r e~ /l&/-
Date o '7 /As IL_
0 Over $175,006 -Co~cil Approval Required
0 Over $45,000-Department Head Approval Required
181 Up to $45,000-Designated Supervisor Approval Required
RECOMMENDED FOR APPROVAL
Exhibits: (Check box for exhibits that apply to this contract and attach)
l2$J Exhibit "A"-Scope of Services
0 Exhibit "B"-Schedule of Performance
0 Exhibit "C"-Compensation
l2$J 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
D Exhibit "H'' -Request for City Manager to Waive Informal Bidding Requirements
PO# 2017-J.B'-f
Account 265-71-711 700-702
9
Julia Kinst
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Dear Ms. Kinst;
CDS City Data Services
403 Alvarado Street, Brisbane, CA 94005
www.citydataservices .com
c;_ityg9tas~rvi@§.@_y_a_hoo c;p_f!J.
Exhibit A
June 31, 2016
City Data Services' provides web-based data management services. Please find the scope of services and hourly
rates for work for the City of Cupertino for Public Services programs and projects and Housing programs and
projects :
SCOPE OF SERVICES -System Maintenance
Under the scope of the maintenance contract, CDS will provide:
• Ability to store, display, and summarize individual program administration information;
• Ability to store, display, and summarize individual program contract information ;
• Ability to enter, store, display, and summarize compliance information;
• Maintain all database and report elements created under the development contract;
• Maintain data backups and download to the City of Cupertino on a determined schedule;
• Modify database as needed to add or remove fields, or improve presentation of data;
• Modify existing reports as needed to meet City of Cupertino's requirements ;
• Provide customer service to City of Cupertino and their clients throughout the term of contract ;
• Promptly respond to request for assistance , training , or database repa ir
• Single Family and Multi-Family Housing management assistance.
• Generate Certificate of Occupancy and other management documents .
The monthly maintenance fee is three hundred fifty dollars ($350) per month for public services and one
hundred dollars ($100) for housing programs and projects commencing the first of July 2016 for the term
of the agreement. This fee remains constant regardless of the number of users, trainings, units,
programs, projects or reports included in the system.
HOURLY RATE
The CDS System Maintenance program is designed to cover all costs of standard development and routine
maintenance, updates , and changes, and periodic new reports as covered in the above paragraphs. In the event
that development is required that was outside the scope as proposed, such work would be billed either by an hourly
rate of $185.00/hr, or by the job as determined by Staff.
Invoices are billed quarterly and require payment within 30 days of submission of invoice . A one percent fee will be
incurred for bills that are 30 days past due.
:;-//L~l/l__--
Steve Crounse, Partner
City Data Services
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:
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.
10