04-059 D.R. Elrod & Associates=, %.'~
AGREEMENT ~ I ~) ~ ~~
BETWEEN
CITY OF CLrPERTINO
AND
D.R. ELROD ANI) ASSOCIATES
FC-R
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT MADE AS OF May 5, 2004, BETWEEN CITY OF
CUPERTINO (hereinafter referred to as CITY"), and D.R. ELROD AND ASSOCIATES
(hereinafter referred to as Consultant).
WITNESSETH:
WHEREAS, CITY intends to provide Davis-F3acon Compliance (hereinafter referred to
as Project) and,
WHEREAS, CITY requires certain professional fiscal analysis services in connection
with Project (hereinafter referred as Services); and
WHEREAS, Consultant is qualified and prep~~red to provide such Services;
NOW, THEREFORE, in consideration of the promises contained herein, the parties agree
as follows:
ARTICLE 1 -SERVICES TO BE PERFORMED BY CONSULTANT
1.1 Specific Services and the associated scope of services, payment, schedule, and
personnel will be defined in specific Task Order as mutually agreed by City and
Consultant.
1.2 All Task Orders will by reference incorporate the terms and conditions on this
Agreement, and become formal amendments hereto.
ARTICLE 2 -COMPENSATION
2.1 Compensation for Consulting services performed under this Agreement shall be
compensated for on a Cost Plus Fixed ]?ee basis. When using this basis of
PC/DIR/C ITY/FRMS/A92502
compensation, the City agrees to pay C~~nsultant actual costs incurred, subject to
an agreed upon Cost Ceiling, plus a Fixed Professional Fee (Fixed Fee).
For purposes of this Agreement, the actual costs shall include:
• Direct Labor Cost
Overhead Cost
~ Other Direct Costs (Direct Non-salary Costs)
Outside Services
Labor rates shall be based on a normal 8-hour day, 40-hour week, with overtime
paid for authorized work. Technicians, drafters, and support personnel are paid at
one and one-half times their regular rate for overtime. Professional personnel are
paid at their regular rate for overtime. Overhead Cost shall be the sum of Fringe
Benefits and Indirect Costs.
As a portion of the total compensation to be paid to Consultant, City shall pay a
Fixed Professional Fee negotiated for each Task Order as profit for services
rendered by Consultant covered by this Agreement and its Task Orders. The
Fixed Fee maybe increased for additional authorized services only by subsequent
task order or amendment changing the scope of work:
Definitions are as follows:
a) Direct labor is salaries and wages paid to personnel for time directly
chargeable to the project. Dire~;t labor does not include the cost of
Consultant's statutory and customary benefits, such as sick leave, holidays,
vacations; and medical and retirement benefits nor the cost of the time of
executive and administrative personnel and others whose time is not
identifiable to the project.
b) Fringe benefits include Consult:ant's statutory and customary benefits, such
as sick leave, holidays, vacatio~is, medical and retirement benefits,
incentive pay, tuition, and other costs classified as employee benefits.
c) Indirect costs are allocations of costs that are not directly chargeable to a
specific engagement and are commonly referred to as Consultant's
overhead. Indirect costs include provisions for such things as clerical
support, office space, light and heat, insurance, statutory and customary
employee benefits, and the time of executive and administrative personnel
and others whose time is not identifiable to the Davis-Bacon Compliance
Project or to any other project. Under no circumstances can the same
labor costs be charged as direct: labor and also appear at the same time as
indirect costs, and visa versa.
H:\- CDBG\Davis-Bacon agreement.doc 2
d) Other (non-labor) direct costs include such typical expenses as cost of
transportation and subsistence, }printing and reproduction, computer time
and programming costs, identifiable supplies, and charges by reviewing
authorities.
e) Outside Services shall include all charges from outside consulting firms or
subconsultants.
2.2 Reimbursement for mileage shall not e:tceed the prevailing Internal Revenue
Service's standard mileage rate.
2.3 A Cost Ceiling will be established for e-ach Task Order which is based upon
estimated labor-hours and cost estimates. Costs as described above, comprising
direct labor, overhead cost, and other direct costs, shall be payable up to a Cost
Ceiling as specified in the Task Order. A Maximum Fee Ceiling, or Task Order
Firm Ceiling, will also be established fir each Task Order which includes the Cost
Ceiling plus the Fixed Fee.
2.4 Consultant shall invoice City monthly for the actual costs incurred, and apro-
ratedportion of the Fixed Fee for work-performed during the previous month. If
the Maximum Fee Ceiling is reached, the Consultant will complete the agreed-
upon work for the Maximum Fee Ceiling. With City staff approval, labor hours
maybe reallocated within the tasks without renegotiation in such a manner so as
not to exceed the Maximum Fee Ceiling.
2.5 The Consultant shall provide the City `vith a review of the budget amounts when
75 percent of the Cost Ceiling for any task has been expended. Consultant may
request a revision in the Cost Ceiling fir performance of this Agreement, and will
relate the rationale for the revision to tJ1e specific basis of estimate as defined in
the Scope of Services. Such notification will be submitted to the City at the
earliest possible date. The authorized ~~ost Ceiling shall not be exceeded without
written approval of the City.
2.6 The fixed professional fee will not be changed except in the case of a written
amendment to the Agreement, which alters the Scope of Services. City and
Consultant agree to negotiate an increase or decrease in Cost Ceiling and Fixed
Fee for any change in Scope of Services required at any time during the term of
this Agreement. Consultant will not commence work on the altered Scope of
Services until authorized by City.
2.7 Direct labor rates are subject to revision to coincide with Consultant's normal
salary review schedule. Adjustments in direct labor rates shall not affect the firm
ceiling without prior written authoriza~:ion of the City.
2.8 City shall pay Consultant in accordance with each Task Order for Services.
H:\- CDBG\Davis-Bacon agreement.doc 3
2.9 Consultant shall submit monthly statements for Services rendered. City will make
prompt monthly payments in response to Consultant's monthly statements.
ARTICLE 3 -PERIOD OF SERVICE
3.1 Consultant's services will be performed and the specified services rendered and
deliverables submitted within the time period or by the date stipulated in each
Task Order.
3.2 Consultant's services under this Agreement will be considered complete when the
services are rendered and/or final deliverable is submitted and accepted by City.
3.3 If any time period within or date by which any of the Consultant's services are to
be completed is exceeded through no fault of Consultant, all rates, measures and
amounts of compensation and the time for completion of performance shall be
subject to equitable adjustment.
ARTICLE 4 -CITY'S RESPONSIBILITIES.
City will do the following in a timely manner so as not to delay the services of
Consultant.
4.1 Provide all criteria and full information as to City's requirements for the services
assignment and designate in writing a~~erson with authority to act on City's behalf
on all matters concerning the Consultant's services.
4.2 Furnish to Consultant all existing studies, reports and other available data
pertinent to the Consultant's services, c-btain or authorize, Consultant to obtain or
provide additional reports and data as required, and furnish to Consultant services
of others required for the performance of Consultant's services hereunder, and
Consultant shall be entitled to use and rely upon all such information and services
provided by City or others in performing Consultant's services under this
Agreement.
4.3 Arrange for access to and make all provisions for Consultant to enter upon public
and private property as required for Consultant to perform services hereunder.
4.4 Perform such other functions as are indicated in each Task Order related to duties
of City.
4.5 Bear all costs incident to compliance vrith the requirements of this Section.
H:\- CDBG\Davis-Bacon agreement.doc 4
ARTICLE 5 -STANDARD OF CARE
5.1 Consultant shall exercise the same degree of care, skill, and diligence in the
performance of the Services as is ordinarily provided by a professional Consultant
under similar circumstance and Consultant shall, at no cost to City, re-perform
services which fail to satisfy the foregoing standard of care.
ARTICLE 6 -OPINIONS OF COST AND SCHEDULE
6.1 Since Consultant has no control over trte cost of labor, materials, equipment or
services furnished by others, or over contractors', subcontractors', or vendors'
methods of determining prices, or over competitive bidding or market conditions
or economic conditions, Consultant's crest estimate and economic analysis shall be
made on the basis of qualification and experience as a professional.
6.2 Since Consultant has no control over the resources provided by others to meet
contract schedules, Consultant's forecast schedules shall be made on the basis of
qualification and experience as a professional.
Consultant cannot and does not guarantee that proposals, bids or actual project
costs will vary from his cost estimates or that actual schedules will not vary from
his forecast schedules.
ARTICLE 7 -SUBCONTRACTING
7.1 No subcontract shall be awarded by Consultant until prior written approval is
obtained from the City.
ARTICLE 8 -CONSULTANT-ASSIGNED PERSONNEL
8.1 Consultant shall designate in writing aal individual to have immediate
responsibility for the performance of the services and for all matters relating to
performance under this Agreement. Key personnel to be assigned by Consultant
will be stipulated in each Task Order. Substitution of any assigned person shall
require the prior written approval of the City, which shall not be unreasonably
withheld. If the City determines that a proposed substitution is not responsible or
qualified to perform the services then, at the request of the City, Consultant shall
substitute a qualified and responsible Berson.
ARTICLE 9 -OWNERSHIP OF DOCUMENTS
9.1 All work products, drawings, data, reports, files, estimate and other such
information and materials (except proprietary computer programs, including
source codes purchased or developed with Consultant monies) as maybe
H:\- CDBG\Davis-Bacon agreement.doc 5
accumulated by Consultant to complete- services under this Agreement shall be
owned by the City.
9.2 Consultant shall retain custody of all project data and documents other than
deliverables specified in each Task Order, but shall make access thereto available
to the City at all reasonable times the City may request. City may make and retain
copies for information and reference.
9.3 All deliverables and other information prepared by Consultant pursuant to this
Agreement are instruments of service in respect to this project. They are not
intended or represented to be suitable for reuse by City or others on extensions of
this Project or on any other project. Ariy reuse without written verification or
adaptation by Engineer for the specific purpose intended will be at City's sole risk
and without liability or legal exposure to Consultant; and City shall indemnify and
hold harmless Consultant against all claims, damages, losses, and expenses.
including attorney's fees arising out of or resulting from such reuse. Any such
verification or adaptation will entitle Consultant to further compensation at rates
to be agreed upon by City and Consultant.
ARTICLE 10 -RECORDS OF LABOR AND COSTS
10.1 Consultant shall maintain for all Task Orders, records of labor and costs used in
claims for compensation under this Agreement. Records shall mean a
contemporaneous record of time for personnel; a methodology and calculation of
the Multiplier for fringe benefits and indirect costs; and invoices, time sheets, or
other factors used as a basis for determining other nonlabor Project charges.
These records must be made available to the City upon reasonable notice of no
more than 48 hours during the period of the performance of this Agreement.
10.2 After delivery of Services (completion of Task Orders) under this Agreement, the
Consultant's records of all costs used iii claim's for compensation under this
Agreement shall be available to City's accountants and auditors for inspection and
verification. These records will be maintained by Consultant and made
reasonably accessible to the City for a period of three (3) years after completion of
Task Orders under this Agreement.
10.3 Consultant agrees to cooperate and provide any and all information concerning
the Project costs which are a factor in determining compensation under this
Agreement as requested by the City or any public agency which has any part in
providing financing for, or authority o~~er, the Services which are provided under
the Agreement.
10.4 Failure to provide documentation or substantiation of all Project costs used as a
factor in compensation paid under Article 2 hereof will be grounds for City to
refuse payment of any statement submitted by the Consultant and for a back
charge for any City funds, including interest from payment; or grant, matching or
H:\- CDBG\Davis-Bacon agreement.doc 6
other funds from agencies assisting City in financing the Services specified in this
Agreement.
ARTICLE II -INSURANCE
Consultant shall provide and maintain at all tunes during the performance of the
Agreement the following insurances:
11.1 Workers' Compensation and Employer's Liability Insurance. Consultant agrees to
carry Workers' Compensation and Em,ployer's Liability Insurance for protection
of Consultant's employees as required ley law and as will protect Consultant from
loss or damage because of personal injuries, including death, to any of his
employees.
11.2 Comprehensive Automobile Liability Insurance. Consultant agrees to carry a
Comprehensive Automobile Liability Policy providing bodily injury liability. This
policy shall protect Consultant against all liability arising out of the use of owned
or leased automobiles both passenger z~nd commercial. Automobiles, trucks, and
other vehicles and equipment (owned, not owned, or hired, licensed or unlicensed
for road use) shall be covered under this policy. Limits of liability for
Comprehensive Automobile Liability Insurance shall not be less than $1,000,000
Combined Single Limit.
11.3 Comprehensive General Liability. Insurance as will protect Consultant and
City from any and all claims for dama;;es or personal injuries, including death,
which maybe suffered by persons, or :for damages to or destruction to the
property of others, which may arise from the Consultant's operations under this
Agreement, which insurance shall narr~e the City as additional insured. Said
insurance shall provide a minimum of $1,000,000 Combined Single Limit
coverage for personal injury, bodily injury, and property damage for each
occurrence arid aggregate. Such insurance will insure Consultant and City from
any and all claims arising from the fol:~owing:
1. Personal injury;
2. Bodily injury;
3. Property damage;
4. Broad form property damage;
5. Independent contractors;
6. Blanket contractual liability.
11.4 Consultant shall maintain a policy of f~rofessional liability insurance, protecting it
against claims arising out of negligent acts, errors, or omissions of Consultant
pursuant to this Agreement, in an amount of not less than $1,000,000. The said
policy shall cover the indemnity provisions under this Agreement.
H:\- CDBG\Davis-Bacon agreement.doc 7
11.5 Consultant agrees to maintain such insurance at Consultant's expense in full force
and effect in a company or companies ;satisfactory to the City. All coverage shall
remain in effect until completion of the: Project.
11.6 Consultant will furnish the City with ctrtificates of insurance issued by
Consultant's insurance carrier and countersigned by an authorized agent or
representative of the insurance company. The certificates shall show that the
insurance will not be cancelled, altered, or reduced without at least thirty (30)
days prior written notice to the City. The certificates for liability insurance will
show that liability assumed under this .Agreement is included.
ARTICLE 12 -LIABILITY AND INDEMNIFICATION
12.1 Having considered the risks and potential liabilities that may exist during the
performance of the Services; and in consideration of the promises included herein,
City and Consultant agree to allocate such liabilities in accordance with this
Article 12. Words and phrases used in this Article shall be interpreted in
accordance with customary insurance industry usage and practice.
12.2 Consultant shall indemnify and save h~irmless and defend the City and all of their
agents, officers, and employees from and against all claims, demand, or cause of
action of every name and nature arisin;; out of negligent error, omission, or act of
Consultant, its agents, servants, or employees in the performance of its services
under this Agreement.
12.3 In the event an action for damages is filed in which negligence is alleged on the
part of City and Consultant, Consultant agrees to defend City. In the event City
accepts Consultant's defense, City agrees to indemnify and reimburse Consultant
on a pro rata basis for all expenses of defense and any judgment or amount paid
by Consultant in resolution of such claim. Such pro rata share shall be based upon
a final judicial determination of negligence or, in the absence of such
determination, by mutual agreement.
12.4 Consultant shall indemnify City against legal liability for damages arising out of
claims by Consultant's employees. City shall indemnify Consultant against legal
liability for damages arising out of claims by City's employees.
12.5 Indemnity provisions will be incorporated into all Project contractual
arrangements entered into by City and will protect City and Consultant to the
same extent.
12.6 Upon completion of all services, obligations and duties provided for in the
Agreement, or in the event of termination of this Agreement for any reason, the
terms and conditions of this Article shall survive.
H:\- CDBG\Davis-Bacon agreement.doc g
12.7 To the maximum extent permitted bylaw, Consultant's liability for City's damage
will not exceed the aggregate compensation received by Consultant under this
Agreement or the maximum amount of professional liability insurance required by
this Agreement, which ever is greater.
ARTICLE 13 -INDEPENDENT CONTRAC'T'OR
Consultant undertakes performance of the Services as an independent contractor and shall
be wholly responsible for the methods of perfi~rmance. City will have no right to
supervise the methods used, but City will havt; right to observe such performance.
Consultant shall work closely with City in performing Services under this Agreement.
ARTICLE 14 -COMPLIANCE WITH LAWS
In performance of the Services, Consultant will comply with applicable regulatory
requirements including federal, state, and local laws, rules, regulations, orders, codes,
criteria and standards. Consultant shall procure the permits, certificates, and licenses
necessary to allow Consultant to provide Davis-Bacon Compliance. Consultant shall not
be responsible for procuring permits, certificates, and licenses required for any
construction unless such responsibilities are specifically assigned to Consultant in Task
Order.
ARTICLE 15 -NONDISCLOSURE OF PROPRIETARY INFORMATION
Consultant shall consider all information provided by City and all drawings, reports,
studies, design calculations, specifications, and other documents resulting from the
Consultant's performance of the Services to be proprietary unless such information is
available from public sources. Consultant shall not publish or disclose proprietary
information for any purpose other than the performance of the Services without the prior
Written authorization of City or in response to legal process.
ARTICLE 1.6 -TERMINATION OF CONTI:ACT
16.1 The obligation to continue Services under this Agreement maybe terminated by
either party upon seven days written n~~tice in the event of substantial failure by
the other party to perform in accordance with the terms hereof through no fault of
the terminating party.
16.2 City shall have the right to terminate this Agreement or suspend performance
thereof for City's convenience upon written notice to Consultant, and Consultant
shall terminate or suspend performance of Services on a schedule acceptable to
City. In the event of termination of suspension for City's convenience, City will
pay Consultant for all services performed and costs incurred including termination
or suspension expenses. Upon restart of a suspended project, equitable
adjustment shall be made to Consultar.~t's compensation.
H:\- CDBG\Davis-Bacon agreement.doc 9
ARTICLE 17 -UNCONTROLLABLE FORCES
17.1 Neither City nor Consultant shall be considered to be in default of this
Agreement if delays in or failure of performance shall be due to uncontrollable
forces, the effect of which, by the exer~~ise of reasonable diligence, the
nonperforming party could not avoid. The term "uncontrollable forces" shall
mean any event that results in the prevention or delay of performance by a party
of its obligations under this Agreement. and which is beyond the control of the
nonperforming party. It includes, but is not limited to, fire, flood, earthquake,
storms, lightening, epidemic, war, riot, civil disturbance, sabotage, inability to
procure permits, licenses, or authorizations from any state, local, or federal
agency or person for any of the supplies, materials, accesses, or services required
to be provided by either City or Consultant under this Agreement, strikes, work
slowdowns or other labor disturbances., and judicial restraint.
17.2 Neither party shall, however, be excusc;d from performance if nonperformance is
due to uncontrollable forces which are removable or remediable, and which the
nonperforming party could have, with the exercise of reasonable diligence,
removed or remedied with reasonable dispatch. The provisions of this Article
shall not be interpreted or construed to require Consultant or City to prevent,
settle, or otherwise avoid a strike, work: slowdown, or other labor action. The
nonperforming party shall, within a reasonable time of being prevented or delayed
from performance by an uncontrollable; force, give written notice to the other
party describing the circumstances and uncontrollable forces preventing continued
performance of the obligations of this ,agreement. The Consultant will be
allowed reasonable negotiated extension of time or adjustments for City initiated
temporary stoppage of services.
ARTICLE 18 -MISCELLANEOUS
18.1 A waiver by either City or Consultant of any breach of this Agreement shall not
be binding upon the waiving party unless such waiver is in writing. In the event
of a written waiver, such a waiver shal l not affect the waiving party's rights with
respect to any other or further breach.
18.2 The invalidity, illegality, or unenforce~~bility of any provision of this Agreement,
or the occurrence of any event rendering any portion or provision of this
Agreement void, shall in no way effect the validity or enforceability of any other
portion or provision of the Agreement. Any void provision shall be deemed
severed from the Agreement and the balance of the Agreement shall be construed
and enforced as if the Agreement did not contain the particular portion or
provision held to be void.
H:\- CDBG\Davis-Bacon agreement.doc 1
ARTICLE 19 -INTEGRATION AND MODI]iICATION
19.1 This Agreement (consisting of pages 1 to 14), together with all exhibits executed
by the undersigned, is adopted by City and Consultant as a complete and
exclusive statement of the terms of the Agreement between City and Consultant.
This Agreement supersedes all prior agreements, contracts, proposals,
representations, negotiations, letters, or other communications between the City
and Consultant pertaining to the Services, whether written or oral.
19.2 The Agreement may not be modified unless such modifications are evidenced in
writing signed by both City and Consu'..tant.
ARTICLE 20-SUCCESSORS AND ASSIGNS
20.1 City and Consultant each binds itself acid its directors, officers, partners,
successors, executors, administrators; ~~ssigns and legal representatives to the
other party to this Agreement and to the partners, successors, executors,
administrators, assigns, and legal representatives of such other party, in respect to
all covenants, agreements, and obligations of this Agreement.
20.2 Neither City nor Consultant shall assign, sublet, or transfer any rights under or
interest in (including, but without limitation, monies that may become due or
monies that are due) this Agreement without the written consent of the other,
except to the extent that the effect of this limitation may be restricted by law.
Unless specifically stated to the contrary in any written consent to an assignment,
no assignment will release or discharge; the assignor from any duty or
responsibility under this Agreement. 1`dothing contained in this paragraph shall
prevent Consultant from employing su~:h independent consultants, associates, and
subcontractors as he may deem appropriate to assist him/her in the performance of
the Services hereunder and in accordance with Article 7.
20.3 Nothing herein shall be construed to give any rights or benefits to anyone other
than City and Consultant.
H:\- CDBG\Davis-Bacon agreement.doc 11
TASK ORDER NO. 1
to
AGREElvIENT
BETWEEN
CITY OF CLrPERTINO
AND
D.R. ELROD ANI) ASSOCIATES
FO:'R
PROFESSIONAL SERVICES
Dated May 5, 2004
I. PURPOSE
The consultant shall provide Davis-Ba~~on Compliance on behalf of the city of
Cupertino.
2. PROJECT COORDINATION
Project shall be coordinated with Vera Gil, Senior Planner, in the Community
Development Department. Consultant may need to coordinate work with City's
Community Development Block Grant subrecipients as directed.
3. SCOPE OF SERVICES
Attached Proposal for Davis-Bacon Compliance, Exhibit A; is hereby
incorporated as part of this agreement.
4. COST CEILING FOR DIRECT COSTS
The cost ceiling for the provision ofDavis-Bacon Compliance shall be set at
$10,000. This fee shall include the securing of wage determinations for both
Cupertino Community Services' Greenwood Ct. and the Le Beaulieu Apartment
rehabilitation projects, consultation with City and project staff, preparation of
monitoring packets, preconstruction conference attendance, training, site visits,
monitoring of documentation and interviews.
IN WITNESS WHEREOF, the parties hereto have made and executed this Task
H:\- CDBG\Davis-Bacon agreement.doc l;~