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97-037 Pacific Municipal Consultants Planning ConsultingACCOUNT NO. PURCHASE ORDE2 NO. �ro_73o1- 551 --A M 9 5 3 AGREEMENT THIS AGREEMENT, made and entered into this 1 st day of May , 1997, by and between the CITY OF CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY", and Pacify Municipal Consultants, a consulting firm with offices at 10411 Old Placerville Road, Suite 210, Sacramento, California, 95827, hereinafter referred to as "CONTRACTOR"; WITNESSETH: WHEREAS, CITY desires to retain services in conjunction with planning consulting; and WHEREAS, CITY desires to engage CONTRACTOR to provide these services by reason of its qualifications and experience for performing such services, and CONTRACTOR 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 hereto agree as follows: 1. 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" shall mean the duly appointed City Manager of the City of Cupertino, California, or his designated representative. (c) The term "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino, California, or his designated representative. (d) The term "City Clerk" shall mean the duly appointed City Clerk of the City of Cupertino, California, or her designated representative. PROJECT COORDINATION. (a) Com. The City Manager shall be representative of CITY for all purposes under this agreement. CIDDY WORDELL hereby is designated as the PROJECT MANAGER for the City Manager, and shall supervise the progress and execution of this agreement. (b) Contractor. CONTRACTOR shall assign a CONTRACT PLANNER to have overall responsibility for the progress and execution of this agreement for CONTRACTOR. Deborah Ungo-McCormick hereby is designated as the CONTRACT PLANNER for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this agreement require a substitute CONTRACT PLANNER for any reason, the CONTRACT PLANNER designee shall be subject to the prior written acceptance and approval of the PROJECT MANAGER. Page 1 3. DUTIES OF CONTRACTOR. (a) Services to be Furnished. CONTRACTOR shall provide all specified services as set forth below: (1) See attached proposal (Exhibit A: Scope of Work) (b) Laws to be Observed. CONTRACTOR steal I: (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 CONTRACTOR 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 CONTRACTOR'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 subcontractors 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 PROJECT MANAGER in writing any discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawing, specifications, or provisions of this agreement. (c) Release of Reports and Information. Any reports, information, data, or other material given to, or prepared or assembled by, CONTRACTOR or its subcontractors, if any, under this agreement shall be the property of CITY and shall not be made available to any individual or organization by CONTRACTOR or its subcontractors, if any, without the prior written approval of the City Manager. (d) Qualifications of Contractor. CONTRACTOR represents that it is qualified to furnish the services described under this agreement. 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR the fee of $50/hour per 32 hour work week. 5. TERM. The services to be performed hereunder shall commence on May 1, 1997, and shall be completed by August 31, 1997. Page 2 6. TEMPORARY SUSPENSION. 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 CONTRACTOR to perform any provision of this agreement. 7. EXTENSION OF TERM. 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. SUSPENSION; TERMINATION. (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, CONTRACTOR shall immediately discontinue his performance under this agreement. (b) Pa ►�. Upon such suspension or termination, CONTRACTOR 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 CONTRACTOR, CITY shall be obligated to compensate CONTRACTOR only for that portion of CONTRACTOR'S services which are of benefit to CITY. (c) Return of Materials. Upon such suspension or termination, CONTRACTOR 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 CONTRACTOR or its subcontractors, if any, or given to CONTRACTOR or its subcontractors, if any, in connection with this agreement. Such materials shall become the permanent property of CITY. CONTRACTOR, 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. 9. INSPECTION. CONTRACTOR shall furnish CITY with every reasonable opportunity for CITY to ascertain that the services of CONTRACTOR 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 PROJECT MANAGER's inspection and approval. The inspection of such work shall not relieve CONTRACTOR of any of its obligations to fiulfill its agreement as prescribed. 10. INDEPENDENT JUDGMENT. Failure of CITY to agree with CONTRACTOR'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 CONTRACTOR to meet the requirements of this agreement. Page 3 11. ASSIGNMENT; SUBCONTRACTORS; EMPLOYEES. (a) Assi mom. Both parties 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. (b) Subcontractors. It is agreed that this agreement is for the personal services of Pacific Municipal Consultants and cannot be performed by any other person or organization. (c) Subcontractors; Employees. CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR hereunder. No subcontractor of CONTRACTOR will be recognized by CITY as such; rather, all subcontractors are deemed to be employees of CONTRACTOR, and it agrees to be responsible for their performance. CONTRACTOR shall give its personal attention to the fulfillment of the provisions of this agreement by all of its employees and subcontractors, if any, and shall keep the work under its control. If any employee or subcontractor of CONTRACTOR 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 PROJECT MANAGER. 12. NOTICES. All notices hereunder shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: TO CITY: Office of the City Clerk 10300 Torre Avenue Cupertino, CA 95014-0580 TO CONTRACTOR: Attention of the PROJECT DIRECTOR at the address of CONTRACTOR recited above. 13. INTEREST OF CONTRACTOR. CONTRACTOR 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. CONTRACTOR further covenants that, in the performance of this agreement, no subcontractor or person having such an interest shall be employed. CONTRACTOR 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, CONTRACTOR shall at all times be deemed an independent contractor and not an agent or employee of CITY. Page 4 14. INDEMNITY. CONTRACTOR hereby agrees to indemnify and save harmless CITY, its officers, agents, and employees of and from: (a) Any and all damage 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 CONTRACTOR, caused by any act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this agreement or of CONTRACTOR'S or any subcontractor's employees or agents. (b) Any 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 CONTRACTOR or any subcontractor 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. (d) The CONTRACTOR is not responsible for the accuracy of data from sources other than his/her own or from conclusions reached as a result of utilizing information supplied by third persons. (e) The City agrees to provide legal defense to challenges to the adequacy and completeness of the services provided. The CONTRACTOR 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 CONTRACTOR'S own work, then the CONTRACTOR shall be responsible for providing whatever remedies that may be required to make the analysis adequate and complete. 15. WORKERS' COMPENSATION. CONTRACTOR 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 provisions of that code, and it certifies that it will comply with such provisions before commencing the performance of the work of this agreement. 16. INSURANCE. CONTRACTOR, 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 a "B" rating as determined in accordance with the insurance industry standard, insuring not only CONTRACTOR, 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 CONTRACTOR for or on behalf of CITY under the provisions of this agreement. Certificates of such insurance, preferably on the forms provided by CITY, shall be filed with CITY concurrently with the execution of this agreement or, with CITY's approval, within ten (10) days thereafter. With the exception of professional liability insurance, said certificates shall be subject to the approval of the City Attorney and shal I contain an endorsement stating that said insurance is primary coverage and will not be Page 5 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 term of this agreement with the City Clerk. 17. AGREEMENT BINDING. The terms, covenants, and conditions of this agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and subcontractors of both parties. 18. 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 be deemed to be a waiver of any other term, covenant, condition, ordinance, or law or of 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. 19. COSTS AND ATTORNEYS 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 attorneys' fees expended in connection with such an action from the other party. 20. 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 the value of this agreement is, or may be, Five Thousand Dollars ($5,000) or more, CONTRACTOR agrees to meet all requirements of the Cupertino Municipal Code pertaining to nondiscrimination in employment and to complete and submit the "Compliance Report -Nondiscrimination Provisions of City of Cupertino Contracts" on the form furnished by CITY. If CONTRACTOR 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 part, or to deduct from the amount payable to CONTRACTOR 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 CONTRACTOR is found in violation of the nondiscrimination provisions of this agreement or the applicable affirmative action guidelines pertaining to this agreement, CONTRACTOR 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 CONTRACTOR the sum of Two Hundred Fifty Dollars ($250) for each calendar day during which CONTRACTOR is found to have been in such noncompliance as damages for said breach of contract, or both. Page 6 21. AGREEMENT CONTAINS ALL UNDERSTANDINGS. This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, or agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and CONTRACTOR. 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 CONTRACTOR have executed this agreement the day and year first above written. ATTEST: CITY OF CUPERTINO r City Clerk APPROVED AS TO F 711MVI City Attorney Pacific Municipal Consultants Contr for � X; Name / �4 o re -,,z- PR, L Address Social Security number or Tax I.D. number Telephone r, - Mgm -71 if il)o Page 7