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98-019 DKS Associates� P a i ACCOUNT NO. PURCHASE ORDER NO. AGREEMENT a:� THIS CONSULTANT AGREEMENT, made and entered into this �44— day of A2 F'r / , 1998, by and between the CITY OF C.UPERTINO, a municipal corporation of California, hereina er referred to as "CITY ", and DKS Associates, a consulting firm with offices at 1956 Webster Street, Suite 300, Oakland, California 94612 -2931, hereinafter referred to as "CONSULTANT "; WITNESSETH: WHEREAS, CITY desires to retain traffic engineering services in conjunction with De Anza Boulevard and Stevens Creek Boulevard Arterial Management Project; and WHEREAS, CITY desires to engage CONSULTANT to provide these services by reason of its qualifications and experience for performing such services, and CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of their mutual covenants, the parties herein agree as follows: DEFINITIONS. (a) The word "City" as used in this agreement shall mean and include all the territory lying within the municipal boundaries of the City of Cupertino, California, as presently existing, plus all territory which may be added thereto during the term of this agreement by annexation or otherwise. (b) The term "City Manager" shal I mean the duly appointed City Manager of the City of Cupertino, California, or his /her designated representative. (c) The term "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino, California, or his /her designated representative. (d) The teen "City Clerk" shall mean the duly appointed City Clerk of the City of Cupertino, California, or his /her designated representative. (e) The term "FHWA" shall mean the Federal Highway Administration. (f) The tern "State" shall' mean the State of California Department of Transportation. CONSULTANT CONTRACT ADMINISTRATION. (a) Cam. The City Manager shall be representative of CITY for all purposes under this agreement. RAYMOND CHONG is hereby designated as the CONTRACT ADMINISTRATOR for the City Manager and shall supervise the progress and execution. of this agreement. (b) Consultant. CONSULTANT shall assign a PROJECT MANAGER to have overall responsibility for the progress and execution of this agreement for CONSULTANT. Kevin Aguigui is hereby designated as the PROJECT MANAGER. Should circumstances or conditions subsequent to the execution of this. consultant agreement require a substitute PROJECT MANAGER for any reason, the PROJECT MANAGER designee shall be subject to the prior written acceptance and approval of the CONTRACT ADMINISTRATOR. - . 3. DESCRIPTION 'Uf J WORK. \✓ (a) Services to be Furnished. CONSULTANT shall provide all specified services as set forth in the following documents: (1) CITY's "Request for Proposal— Traffic Engineering Services for De Anza Boulevard and Stevens Creek Boulevard Arterial Management Project in the City of Cupertino ", dated March 4, 1998, and Addendum No. 1, dated March 19, 1998, attached as Exhibit A. (2) CONSULTANT's "Proposal to Provide Traffic Engineering Services for the De Anza Boulevard and Stevens Creek Boulevard Arterial Management Project ", dated March, 1998, attached as Exhibit B. (3) CONSULTANT's "Work Plan ", dated April 23, 1998, attached as Exhibit C. (b) Laws to be Observed. CONSULTANT shall: (1) Procure all permits and licenses, pay all charges and fees, and give all notices which may, be necessary and incident to the due and lawful prosecution of the services to be performed by CONSULTANT under this agreement. (2) Keep itself fully informed of all existing and future federal, state, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this agreement, any materials used in CONSULTANT's performance under this agreement, or the conduct of the services under this agreement. (3) At all times observe and comply with, and cause all of its subconsultants and employees, if any, to observe and comply with all of said laws, ordinances, regulations, orders, and decrees mentioned above; (4) Immediately report to the CONTRACT ADMINISTRATOR in writing any discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawings, specifications, or provisions of this agreement. (c) Release to Reports and Information. Any reports, information, data, or other material given to, or prepared or assembled by CONSULTANT o:r its subconsultants, if any, under this agreement shall be the property of CITY and shall not be made available to any individual or organization by CONSULTANT or its subconsultants, if any, under this agreement without the prior written approval of the City Manager. (d) Qualifications of CONSULTANT. CONSULTANT represents that it is qualified to furnish the services described under this agreement. 4. TIME OF BEGINNING AND COMPLETION. CONSULTANT shall begin work after letter of notification has been sent to the CONSULTANT from the CITY. Work will be completed by December 31, 1998. 5. PAYMENTS. The basis of payment for the services provided by the CONSULTANT under this agreement shall be computed as cost plus fee rates. (a) The, CiT shall reimburse the CONSULTANT on a tfine and expenses basis for actual cost plus fixed fee (including labor costs, employee benefits, overhead, profit, and other direct costs plus fixed . fee) incurred by the CONSULTANT in performance of the work, in an amount not to exceed $151,964.00. Actual costs shall not exceed the estimated wage rates and other costs set forth in the CONSULTANT's cost proposal. (b) The CONSULTANT shall be reimbursed for actual travel expenses incurred in the performance of this work, including the use of private cars at the rate of 32.5 cents per mile, while traveling away from CONSULTANT's headquarters which is hereby designated as Oakland. In addition, CONSULTANT's personnel shall be reimbursed for pear diem expenses at a rate not to exceed that currently authorized for State employees under State Department of Personnel administration rules. (c) Total expenditures made under this agreement shall not exceed the sum of $151,964.00. The CONSULTANT's cost proposal is stated in. the following documents: (1) Consultant's "Cost Proposal ", dated April 23, 1998, attached as Exhibit D. 6. RECORDS RETENTION. The CONSULTANT's records shall be retained for inspection by the State, FHWA, or their duly authorized representatives for three years after final paynent to the CONSULTANT. 7. COST PRINCIPLES. The Federal Acquisition Regulations in Title 48; Code of Federal Regulations (CFR) 31 are the governing factors regarding allowable elements of cost. (a) Covenant Against Contingent Fees. The CONSULTANT warrants that he /she has not employed or retained any company or person, other than —a bona fide employee working for the CONSULTANT to soli8it or secure this agreement, and that he /she has not paid or agreed to pay any company or person, other than a bona employee, any fee; commission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or formation of this agreement. For breach or violation of this warranty, the CITY shall have the right to annul this agreement without liability, or at its discretion to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. DESIGN STANDARDS. The CONSULTANT shall provide services that conform with the appropriate standards for design or other standards for work performance as stipulated as follows: (1) Caltrans' Highway Design Manual (2) Caltrans' Traffic Manual (3) National Transportation Communications for ITS Protocol (4) National Intelligent Transportation Systems Architecture 9. DOCUMENTS. The CONSULTANT shall document the results of the work to the satisfaction of the CITY and, if applicable, the State and FHWA. This may include preparation of progress and final reports, plans, specifications and estimates, or similar evidence of attainment of the agreement objectives. (a) Ownership of Documents. The tracings, plans, specifications, and maps prepared or obtained under the terms of the agreement be delivered to and become the property of the CITY, and that basic survey notes and sketches, charts, computations, and other data prepared or obtained under such agreement shall be made available, upon request, to the CITY without restriction or limitation on their use. 10. CHANGES IN WORK. All changes and /or extra work shall be performed and paid for in accordance with the following: (a) Only the City Engineer or City Council may authorize extra and /or changed work. CONSULTANT expressly recognizes that other City personnel are without authorization to either order extra and /or changed work or waive contract requirements. Failure of CONSULTANT to secure the Council's or City Engineer's prior written authorization for such extra and /or changed work shall constitute a waiver of any and all right to adjustment in contract price due to such unauthorized work and CONSULTANT thereafter shall - be entitled to no compensation whatsoever for performance of such work. (b) If the CONSULTANT is of the opinion that any work he has been directed to perform is beyond the scope of this agreement and constitutes.extra work, he shall promptly notify the CITY of the fact. The CITY shall make a determination as to whether or riot such work is, in fact, beyond the scope of this Agreement and constitutes extra work. In the event that the CITY determines that such work does constitute extra work, it shall provide extra compensation to the CONSULTANT on a fair and equitable basis. A supplemental agreement providing for such compensation for extra work shall be negotiated between the CITY and the CONSULTANT. Such supplemental agreement shall be executed by the CONSULTANT and be approved by the necessary CITY officials. (c) In the event CITY determines tl;iat such work does not constitute extra work, CONSULTANT shall not be paid extra compensation above that provided herein and if such determination is made by CITY staff, said determination may be appealed to the City Council as long as a written appeal is submitted to the City Manager within five (5) days after the staff's determination is received by the CONSULTANT. Said written appeal shall include a description of each and every ground upon which CONSULTANT challenges the staffs determination. 11. DELAYS AND EXTENSIONS. The CITY shall consider an appropriate extension of time in case of unavoidable delays and for consideration of corresponding warranted adjustments in payment. In the event that the services called for under this agreement are not completed within the time specified above, the City Manager shall have the option to extend the time for completion. This paragraph does not preclude the recovery of damages for delay by either party. 12. TERMINATION OR ABANDONMENT. (a) Right to Suspend or'Terminate. Either party may suspend or terminate this agreement for any reason by giving thirty (30) days' written notice. Upon receipt of such notice CONSULTANT shall immediately discontinue his performance under this agreement. The City Manager shall have the authority to suspend this agreement, wholly or in part, for such period as he deems necessary due to unfavorable conditions or to the failure on the part of the CONSULTANT to perform any provision of this agreement. (b) Pa ment. Upon such suspension or termination, CONSULTANT shall be paid for all services actually rendered to CITY to the date of such suspension or termination; provided, however, if this agreement is suspended or terminated for fault of CONSULTANT, CITY shall be obligated to compensate CONSULTANT only for that portion of CONSULTANT services which are of benefit to CITY. 4 l (c) Return ot'iylaterials. Upon such suspension or termialon, CONSULTANT shall turn over to the City Manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONSULTANT or its subconsultants, if any, or given to CONSULTANT or its subconsultants, if any, in connection with this agreement. Such materials shall become the permanent property of CITY. CONSULTANT, however, shall not be liable for CITY's use of incomplete materials or for CITY's use of complete documents if used for other than the, project contemplated by this agreement. 13. REMEDIES Upon a breach or default of any of the terms or obligations of this Agreement by CONSULTANT, the CITY shall be entitled to exercise all rights and remedies hereby reserved under this agreement or made available under applicable laws. 14. RESPONSIBILITY FOR CLAIMS AND LIABILITY (INDEMNIFICATION). CONSULTANT hereby agrees to indemnify and save harmless CITY, its officers, agents, and employees of and from: (a) Any and all damages to or destruction of the property of CITY, its officers, agents, or employees occupied or used by or in the care, custody, or control of CONSULTANT caused by any negligent act, error, or omission of CONSULTANT or any subconsultant under this agreement or of CONSULTANT's or any subconsultant's employees or agents. (b) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of or damage suffered or sustained by any employee or agent of CONSULTANT or any subconsultant under this agreement, however caused, excepting, however, any such claims and demands which are the result of the sole negligence or willful misconduct of CITY, its officers, agents; or employees. (c) Any and all penalties imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any permit by CONSULTANT. (d) The CONSULTANT is riot responsible for the accuracy of data from any other sources or from conclusions reached as a result of utilizing information supplied by third persons. (e) The CITY agrees to provide legal defense to challenges of the adequacy and completeness of the services provided. The CONSULTANT shall assist the CITY in responding to such challenges. If it is subsequently ruled by a court of jurisdiction that errors of facts, procedures, or scope have occurred and that these errors and /or omissions were the result of the CONSULTANT's own negligent professional services, then the CONSULTANT shall be responsible for providing whatever remedies may be required to make the analysis adequate and complete. 15. GENERAL COMPLIANCE WITH LAWS AND WAGE RATES. The CONSULTANT shall comply with all Federal, State; and local laws and ordinances applicable to the work. This includes compliance with prevailing wage rates and their payment in accordance with California Labor Code, Section 1775. (a) Subconsultants, Assignment and Transfer. Under this agreement, participating Federal funds are furnished. The subcontracting, assignment or transfer of any of the work, except as otherwise provided for in the executed agreement, is prohibited. All contracts shall provide that subcontracts exceeding $25,000 in cost shall contain all required provisions of the prime contract. (1) Assignment. Both pai7`ies shall give their personal attention to the faithful performance of this agreement and shall not assign, transfer, convey, or otherwise dispose of this agreement or any right, title, or interest in or to the same or any part thereof without the prior written consent of the other party, and then only subject to such terms and conditions as the other party may require. A consent to one assignment shall not be deemed to be a consent to any subsequent assignment. Any assignment without such approval shall be void, and, at the option of the other party, shall terminate this agreement and any license or privilege granted herein. This agreement and any interest herein shall not be assignable by operation of law without the prior written consent of the other party. (2) Subconsultants; Employees. CONSULTANT shall be responsible for employing or engaging all persons necessary to perform, the services of CONSULTANT hereunder. No subconsultant of CONSULTANT will be recognized by CITY as such; rather, all subconsultants are deemed to be employees of CONSULTANT, and it agrees to be responsible for their performance. CONSULTANT shall give its personal attention to the fulfillment of the provisions of this agreement by all of its employees and subconsultants, if any, and shall keep the work under its control. If any employee or subconsultant of CONSULTANT fails or refuses to carry out the provisions of this agreement or appears to be incompetent or to act in a disorderly or improper manner, he shall be discharged immediately from the work under this agreement on demand of the CONTRACT ADMINISTRATOR. (b) Consultant's Endorsement on Plans, Specifications, & Estimates /Other Data. The responsible CONSULTANT /engineer shall sign all plan:;, specifications, estimates, and engineering data furnished by him /her and where appropriate, indicate his /her registration number. (c) Disadvantaged Business Enterprise Considerations. CONSULTANT has given consideration to DBE firms as specified in 23 CFR 172.5(e) and has met requirements in the provisions of Title 49, Part 23, Code of Federal Regulations (49 CFR23) and the City of Cupertino's adopted DBE program. Evidence must be presented of "good faith" effort, when applicable. The provisions of Title 49, Part 23, Code of Federal Regulations (49 CFR 23) and the CITY's adopted DBE Program require that Disadvantaged Business Enterprises (DBEs) have the opportunity to participate in federally- funded, transportation projects. The agency has established a goal of 10% DBE participation in this consultant contract. In order to meet these requirements, the following criteria have been established: 1. Participation by Caltrans' certified DBEs as a prime consultant or sub - consultants in this contract, or 2. A good faith effort by the prime consultant in trying to secure participation by DBEs prior to award of this contract. Documentation of a good faith effort is to be submitted in writing and consists of the following: a) A list of Caltrans' certified DBEs solicited. b) Description of efforts to use the services of available minority community organizations; minority contracting groups; women contractor groups; and local, State, and Federal minority business assistance centers in the recruitment and placement of DBEs including name of contact, date of contact, and information they provided. C) Identification of the portions of the work to be performed by DBEs, including type of work and dollar value. d) Documentation of good faith negotiations between subcontractors and interested DBEs, including names and dollar value of all bids. 0 16. INSPECTION. CONSULTANT shall furnish CITY with every reasonable opportunity for CITY to ascertain that the services of CONSULTANT are being performed in accordance with the requirements and intentions of this agreement. All work done and all materials furnished, if any, shall be subject to the CONTRACT ADMINISTRATOR's inspection and approval. The inspection of such work shall not relieve CONSULTANT of any of its obligations to fulfill its agreement as prescribed. 17. INDEPENDENT JUDGMENT. Failure of CITY to agree with CONSULTANT's independent findings, conclusions, or recommendations, if the same are called for under this agreement, on the basis of difference in matters of judgment shall not be construed as a failure on the part of CONSULTANT to meet the requirements of this agreement. 18. NOTICES. All notices hereunder shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: TO CITY: Raymond Chong Contract Administrator City of Cupertino 10300 Torre Avenue Cupertino, CA :5014 TO CONSULTANT: Kevin Aguigui Project Manager DKS Associates 1956 Webster Street, Suite 300 Oakland, CA 94612 -2931 19. INTEREST OF CONSULTANT. CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. CONSULTANT further covenants that, in the performance of this agreement, no subconsultant or person having such an interest shall be employed. CONSULTANT certifies that no one who has or will have any financial interest under this agreement is an officer or employee of CITY. It is expressly agreed that, in the performance of the services hereunder, CONSULTANT shall at all times be deemed an independent contractor and not an agent or employee of CITY. 20. CERTIFICATIONS The CITY and CONSULTANT shall certify that, they have not required, directly or indirectly, as an express or implied condition in connection with obtaining or carrying out this agreement: (a) Certification of Local Agency, attached as Exhibit E (b) Certification of Consultant, attached as Exhibit F. 21.. INSURANCE. CONSULTANT, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire term of this agreement, the insurance coverage of at least an "A" rating as determined in accordance with the Best's Guide Rating, and class VII in financial rating, insuring not only CONSULTANT, but also (with the exception of workers' compensation and employer's liability insurance), CITY, its officers, agents, and employees, and each of them with respect to activities and services performed by CONSULTANT for or on behalf of CITY under the provisions of this agreement. Certificates of such insurance, on the forms provided by CITY, shall be filed with CITY concurrently with the execution of this agreement attached as Exhibit G -1 to G -7. With the exception of professional liability insurance, said certificates shall be subject to the approval of the City Attorney and shall contain an endorsement stating that said insurance is primary coverage, and will not be canceled or altered by the insurer except after filing with the City Clerk thirty (;30) days written notice of such cancellation or alteration, and that the City of Cupertino is named as an additional insured. Current certificates of such insurance shall be kept on file at all times during the tern of this agreement with the City Clerk. 22. WORKERS' COMPENSATION. CONSULTANT certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self - insurance in accordance with the provision's of that Labor Code, and it certifies that it will comply with such provisions before commencing the performance of the work of this agreement. 23. AGREEMENT BINDING. The terms, covenants, and conditions of this agreement shall apply to, and shall bind the heirs, successors, executors, administrators, assigns, and subconsultants of both parties. 24. WAIVERS. The waiver by either party of any breach or violation of any term, covenant, or condition of this agreement or any provision, ordinance, or law shall not bo deemed to be a waiver of any other term, covenant, condition, ordinance, or law of or any subsequent breach or violation of the same or of any other term, covenant, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement or of any applicable law or ordinance. 25. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms of this agreement or arising out. of this agreement may recover its reasonable costs and attorney's fees expended in connection with such an action from the other party. 26. NONDISCRIMINATION. No discrimination shall be made in the employment of persons under this agreement because of the race, color, national origin, ancestry, religion, or sex of such person. If CONSULTANT is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of federal law or executive order in the performance of this agreement, it shall thereby be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in rt, or to deduct from the amount payable to CONSULTANT the sum of Twenty -five Dollars ($25) for each person_ for each calendar day during which said person was discriminated against, as damages for said breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer shall constitute evidence of a violation of contract under this paragraph. If CONSULTANT is found in violation of the nondiscrimination provisions of this agreement or the applicable affirmative action guidelines pertaining to this agreement, CONSULTANT shall be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in part, or to deduct from the amount payable to CONSULTANT the sum of Two Hundred Fifty Dollars ($250) for each calendar day during which. CONSULTANT is found to have been in such noncompliance as damages for said breach of contract, or both. 27. AGREEMENT CONTAINS ALL UNDERSTANDINGS. This document represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representation, or agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and CONSULTANT. All provisions of this agreement are expressly made conditions. This agreement shall be governed by the laws of the State of California. IN WITNESS WHEREOF, CITY and year first written above. ATTEST: and CONSULTANT have executed this agreement the day F CUPERTINO City Clerk APPROVE AS T FOR Att orney DKS Associates Consultant Name Mayor Vef�r 5tgpt �t r� Address 7 0a47�1 City, State, ZIP 7V,-* _ZeZ, Telephone Social Security Number r�( or Tax Identification Number LIST OF EXHIBITS Exhibit Title A City's "Request for Proposal— Traffic; Engineering Services for De Anza Boulevard and Stevens Creek Boulevard Arterial Management Project in the City of Cupertino ", dated March 4, 1998, and Addendum No. 1, dated March 19, 1998 B Consultant's "Proposal to Provide Traffic Engineering Services for the De Anza Boulevard and Stevens Creek Boulevard Arterial Management Project ", dated March, 1998 C Consultant's "Work Plan ", dated April 23, 1998 D Consultant's "Cost Proposal ", dated April 23, 1998 E Certification of Local Agency F Certification of Consultant G -1 Insurance Agreement G -2 Certificate of Insurance G -3 Endorsement of Primary Insurance G -4 Additional Insured Endorsement G -5 Comprehensive General Liability Commercial General Liability Endorsement of Aggregate Limits of Insurance per project G -6 Waiver of Subrogation Endorsement Worker's Compensation Insurance G -7 Notice of Policy Cancellation Endorsement U EXHIBIT E CERTIFICATION OF LOCAL AGENCY I HEREBY CERTIFY that I am the Director of Public Works , of the City of Cupertino, and that the consulting firm of DKS Associates or its representative has not been required (except as herein expressly stated), directly or indirectly, as an express or implied condition in connection with obtaining or carrying out this agreement to: (a) employ, retain, agree to employ or retain, any firm or person; or (b) pay or agree to pay, to any firm, person or organization, any fee, contribution, donation, or consideration of any kind. I acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this agreement involving participation of Federal-Aid Highway funds, and is subject to applicable State and Federal laws, both criminal and civiY/ . A 4PR /�g 11 ature) CERTIFICATION OF CONSULTANT I HEREBY CERTIFY that I am the /I EXHIBIT F and duly authorized representative of the firm of DKS Associates, whose address is 1956 Webster Street, Suite 300, Oakland, CA 94612 - 2931., and that, except as hereby expressly_ stated, neither I nor the above firm that I represent have: (a) employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a (bona fide employee working solely for me or the above consultant) to solicit or secure this agreement; nor (b) agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the agreement; nor (c) paid, or agreed to pay, to any firm, organization, or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind for, or in connection with, procuring or carrying out this agreement. I acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this agreement involving participation of Federal -Aid Highway funds, and is subject to applicable State and Federal laws, both criminal and civil. (Date) (Signature) 12