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AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN
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CITY OF CUPERTINO, CALIFO' ► � ...._..._. _ � C
AND
BAY AREA ECONOMI 4 S V ) / /
This agreement for the performance of services ( "Agreement ") is made and entered into on this
1 day of March, 2010 ( "Effective Date "), by and between Bay Area Economics, a California
corporation, with its principal place of business located at 1285 66 Street, Emeryville, CA
( "Contractor "), and the City of Cupertino, California, a general law California municipal
corporation, with its principal place of business located at 10300 Torre Avenue, Cupertino,
California 95014 ( "City "). City and Contractor may be referred to herein individually as a
"Party" or collectively as the "Parties" or the "Parties to this Agreement."
RECITALS
Whereas:
A. City desires to secure professional services more fully described in this Agreement;
B. Contractor represents that it, and its sub - contractors, if any, have the professional
qualifications, expertise, desire and any license(s) necessary to provide certain goods
and/or required services of the quality and type which meet the City's requirements; and,
C. The Parties have specified in this Agreement the terms and conditions under which such
services will be provided and paid for.
Contractor and City agree as follows:
AGREEMENT PROVISIONS
1. SERVICES TO BE PROVIDED
City employs Contractor to perform the services ( "Services ") more fully described in Exhibit A entitled, "SCOPE
OF SERVICES." Exhibit A is attached and incorporated by this reference. Except as otherwise specified in this
Agreement, Contractor shall furnish all necessary technical and professional services, including labor, material,
equipment, transportation, supervision and expertise to satisfactorily complete the work required by City at his/her
own risk and expense.
2. TERM OF AGREEMENT
Unless this paragraph is subsequently modified by a writ :en amendment to this Agreement, the term of this
Agreement shall begin on the Effective Date and terminate at the end of day on July 30, 2010.
a. Commencement of Services
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Contractor shall begin performing Services after receiving written notice from the City to proceed.
b. Completion of Services
Contractor shall complete Services within the time limits set forth in the Scope of Services or as mutually
determined in writing by the Parties. When City determines that Contractor has satisfactorily completed the
Services, City shall give Contractor written Notice of Completion, and Contractor shall not incur any
further costs under this Agreement after receiving such notice.
3. COMPENSATION AND PAYMENT
a. In consideration for Contractor's complete performance of Services, City shall pay Contractor for all
materials provided and services rendered by Contractor at the rate per hour for labor and cost per unit for
materials as outlined in Exhibit B, entitled "SCHEDULE OF FEES," attached and incorporated by this
reference.
b. Contractor will bill City on a monthly basis for Services provided by Contractor during the preceding
month, subject to verification by City. City will pay Contractor within thirty (30) days of City's receipt of
invoice.
4. NO ASSIGNMENT OF AGREEMENT
City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. This
Agreement shall not be assigned or transferred without the prior written approval of City.
5. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties, and no third
party or parties shall have any claim or right of action under this Agreement.
6. INDEPENDENT CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this
Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights,
however, to manage its employees in their performance of Services under this Agreement. Contractor is not
authorized to bind City to any contracts or other obligations.
7. SUBCONTRACTING
None of the Services under this Agreement shall be performed by subcontractors unless Contractor specifically
identifies subcontractors in writing and City pre- approves such subcontractors in writing. Contractor shall be as fully
responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly
employed by them, as Contractor is for the acts and omissions of persons directly employed by it.
8. USE OF CITY NAME OR EMBLEM
Contractor shall not use City's name, insignia, or emblem, or distribute any information related to services under
this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
9. AUDITS
City, through its authorized representatives, has the right during the term of this Agreement, and for three (3) years
from the date of final payment for goods and/or Services provided under this Agreement, to audit the books and
records of Contractor regarding matters covered by this Agreement. Contractor agrees to maintain accurate books
and records in accordance with generally accepted accounting principles. Any expenses not so recorded shall be
disallowed by City. Contractor agrees to help City meet any reporting requirements with respect to Contractor's
Services if requested by City in writing.
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10. QUALIFICATIONS OF CONTRACTOR
Contractor represents that its personnel are qualified to furnish Services of the type and quality, which City requires.
City expressly relies on Contractor's representations regarding its skills and knowledge. Contractor shall promptly
perform all Services requested by City in a safe manner and in accordance with all federal, state, and local operation
and safety regulations. Contractor shall work closely with and be guided by City. Contractor shall also perform all
work in accordance with generally accepted business practices and performance standards of the industry.
11. MONITORING OF SERVICES
City may monitor the Services performed under this Agreement to determine whether Contractor's operation
conforms to City policy and to the terms of this Agreement. City may also monitor the Services to be performed to
determine whether financial operations are conducted in accord with applicable City, county, state, and federal
requirements. If any action of Contractor constitutes a breach, City may terminate this Agreement pursuant to the
provisions described herein.
12. WARRANTY
Contractor expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose
intended, shall be free from defect, and shall conform to the specifications, requirements, and instructions upon
which this Agreement is based. Contractor agrees to promptly replace or correct any incomplete, inaccurate, or
defective Services at no further cost to City when defects are due to the negligence, errors or omissions of
Contractor. If Contractor fails to promptly correct or replace materials or services, City may make corrections or
replace materials or services and charge Contractor for the. cost incurred by City.
13. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, color, creed,
national origin, sex, age, condition of physical handicap, religion, ethnic background, or marital status, in violation
of state or federal law.
14. CONTRACTOR TO HOLD CITY HARMLESS
To the extent permitted by law, Contractor agrees to inlemnify, protect, defend, and hold harmless City, its City
Council, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or
expense or damage, including all costs and reasonable attorney's fees in providing a defense to any claim, arising
from Contractor's negligent, reckless or wrongful acts, errors, or omissions with respect to or in any way connected
with the performance of the Services by Contractor, its agents, subcontractors and /or assigns under this Agreement.
15. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Contractor shall purchase and
maintain in full force and effect, at no cost to City insurance policies with respect to employees and vehicles
assigned to the Performance of Services under this Agreement with coverage amounts, required endorsements,
certificates of insurance, and coverage verifications as defined in Exhibit C attached and incorporated by this
reference.
16. AMENDMENTS
This Agreement may be amended only with the written consent of both Parties.
17. INTEGRATED DOCUMENT
This Agreement represents the entire agreement between City and Contractor. No other understanding, agreements,
conversations, or otherwise, with any representative of City prior to execution of this Agreement shall affect or
modify any of the terms or obligations of this Agreement. Any verbal agreement shall be considered unofficial
information and is not binding upon City.
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18. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or
unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force
and effect.
19. LAW GOVERNING CONTRACT
This Agreement shall be governed and interpreted using the laws of the State of California.
20. DISPUTE RESOLUTION
a. Any controversies or claims between Contractor and City regarding this Agreement must first be put in writing
and delivered to the other Party. The Parties will meet in good faith to attempt to resolve the issue in question. If
the Parties fail to come to an agreement on the resolution of the issue, all required administrative procedures
must be followed. If all administrative procedures are exhausted and the Parties are unable to resolve the issue,
the matter must be submitted to mediation within thirty (30) calendar days after the written request for
mediation is delivered by one Party.
b. The Parties may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation
shall request that the Superior Court of Santa Clara County appoint a mediator. The mediation meeting shall not
exceed one work day [eight (8) hours]. The Parties may agree to extend the time allowed for mediation under
this Agreement.
c. Mediation under this section is a condition precedent to filing an action in any court. In the event litigation or
mediation arises out of any dispute related to this Agreement, the Parties shall each pay their respective
attorneys' fees, expert witness costs and cost of suit, regardless of the outcome of the litigation.
d. Only after both the administrative dispute resolution procedure and the mediation procedure have failed to
resolve a dispute between the Parties may one or both of the Parties file suit in the appropriate civil court.
21. VENUE
The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if
appropriate, in the United States District Court, Northern District of California, San Jose, California.
22. ELECTION OF REMEDIES
The pursuit by any Party of any specific remedy shall not exclude any other remedy available to the Party.
23. CONFLICT OF INTERESTS
This Agreement does not prevent either Party from entering into similar agreements with other parties. To prevent a
conflict of interest, Contractor certifies that to the best of its knowledge, no City officer, employee or authorized
representative has any financial interest in the business of Contractor and that no person associated with Contractor
has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor
is familiar with the provisions of California Government Code Section 87100 and following, and certifies that it
does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict
arises.
24. TERMINATION OF THE AGREEMENT
a. Termination Without Cause
Either Party may terminate this Agreement without cause by giving the other Party written notice ( "Notice of
Termination "), which clearly expresses that Party's intent to terminate the Agreement. Notice of Termination
shall become effective no less than thirty (30) calendar days after a Party receives such notice. After either Party
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terminates the Agreement, Contractor shall discontinue further services as of the effective date of termination
and City shall pay Contractor for all Services satisfactorily performed up to such date.
b. Termination for Cause
For purposes of this Agreement, the term "default" shall mean the failure of any Party to perform any material
obligation in the time and manner provided by this Agreement. Either Party may terminate this Agreement in
the event of a default by the other Party by providing a written Notice of Termination to the defaulting Party.
Such Notice of Termination shall become effective no less than ten (10) calendar days after a Party receives
such notice. Such Notice of Termination for cause shall include a statement by the terminating Party setting
forth grounds for determination of default under the Agreement. In the event this Agreement is terminated for
cause as set forth under this section, City shall pay Contractor for all Services satisfactorily performed up to the
date the Agreement is terminated. City may dedr:.ct from such payment the amount of actual damage, if any,
sustained by City due to Contractor's failure to perform the Services or for breach of this Agreement.
c. Opportunity to Cure Default
Upon receipt of a Notice of Termination by a Party arising from its default under this Agreement, the defaulting
Party shall have five (5) days from the receipt of such notice to cure the default by making such payment or
performing the required obligation. If the default is cured to the mutual satisfaction of the Parties, the
Agreement shall remain in effect upon written acceptance of the cure by the Party who issued the Notice of
Termination for cause.
25. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Cupertino
Office of Community Development
Attn: Vera Gil
10300 Torre Avenue
Cupertino, CA 95014
or by facsimile at (408)777 -3333
And to Contractor address as follows:
Bay Area Economics
1285 66 Street
Emeryville, CA 94608
or by facsimile at (510) 547 -9388
///
///
///
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The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced
by the following signatures of their duly and authorized representatives. It is the intent of the
Parties that this Agreement shall become operative on the Effective Date.
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CITY OF CUPERTINO, CALIFORNIA
a general law California municipal corporation
APPROVED FOR FORM:
Carol Korade David . Knapp
City Attorney City Manager
ATTEST:
10300 Torre Avenue
/
Cupertino, California 95014
Telephone: (408) 777 -3000
Kim Smith Facsimile: (408) 777 -3333
City Clerk
"City"
BAY AREA ECONOMICS
By:
Janet Smith - Heimer
1285 66 Street
Emeryville, CA 94608
Telephone: (510) 547 -9380
Facsimile: (510) 547 -9388
"Contractor"
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AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN
CITY OF CUPERTINO, CALIFORNIA
AND
BAY AREA ECONOMICS
EXHIBIT A
SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are more fully
described in the Contractor's proposal entitled Cupertino Consolidated Plan Scope of Work,
Budget and Timeline, consisting of 4 pages, dated March 1, 2010, which is attached to this
Exhibit A and incorporated by this reference.
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Exhibit A
bae
Memorandum
Date: March 1, 2010
To: Vera Gil, City of Cupertino
From: Simon Alejandrino, Vice President
Re: Cupertino Consolidated Plan and Al, 2010 -2015
This memorandum responds to the City's request for a scope of work and budget to prepare the
City of Cupertino's Consolidated Plan for the 2010 to 2015 period. We look forward to finalizing
this draft scope of work and budget, following additional discussions with staff regarding the tasks
and deliverables.
Scope of Work
Task 1: Start -Up Meeting
BAE will participate in a start-up meeting with City staff via conference call to finalize the timeline
and deliverables, and secure any necessary data from the City.
Task 2: Administrative Draft of Consolidated Plan
BAE will prepare an administrative draft Consolidatec. Plan for the City that draws from the Santa
Clara County Entitlement Jurisdictions "base document" prepared by BAE under a separate
contract. BAE will edit the base document tables and text to focus on the City and County
exclusively, and will include any additional relevant information from the City's 2007 -2014
Housing Element.
The Consolidated Plan will contain the HUD - required sections including the:
o Housing Needs Assessment and Market Analysis
o Five -Year Strategic Plan
o One -Year Action Plan
Each section will contain the requisite data points, maps, and tables. BAE will work closely with
City staff to prepare the Strategic Plan and Action Plan, in particular, relying mainly on staff to
complete any sections and tables that identify funding goals and priorities over this Consolidated
Plan period. Staff will also assume responsibility for tailoring the Goals, Strategies, and Actions to
reflect the City's priorities.
Bay Area Economics
Headquarters 510.547.9380
1285 66th Street fax 510.547.9388
San Francisco Bay Area Sacramento New York Washington, D.C. Emeryville, CA 94608 bael @bael.com
bayareaeconomics.com
Task 3: Public Draft of Consolidated Plan
Following one round of review of the Administrative Draft Consolidated Plan, BAE will prepare a
Public Draft suitable for the mandated 30 -day public review period and public hearing described in
Task 5. The City will assume responsibility for distributing the Public Draft and handling any
noticing requirements.
Task 4: Revised Public Draft of Consolidated Plan
Following the public comment period, BAE will prepare a Revised Public Draft Plan suitable for
presentation to the City Council as part of Task 6. City staff will assume responsibility for
collecting and summarizing any comments received during the public comment review period.
The budget for this task assumes relatively minor additions and edits to the document, rather than a
major revision.
Task 5: Public Hearing
BAE will present the Revised Public Draft Consolidated Plan at a City Council hearing for
adoption. BAE will prepare a draft PowerPoint slide show that highlights the key elements of the
Consolidated Plan, and finalize the presentation following one round of review from City staff.
Task 6: Final Draft Plan for Submittal
BAE will prepare a Final Draft Plan suitable for submittal to HUD following the City Council
hearing. The budget for this task assumes relatively minor additions and edits to the document,
rather than a major revision.
Budget
BAE proposes to conduct this project on a fixed -fee basis, according to the budget below:
Hours
Vice
BAE Tasks President Associate Analyst Budget (a)
Task 1: Start-Up Meeting 1 1 1 $420
Task 2: Administrative Draft of 2010 -2015 Consolidated Plan 16 40 16 $9,600
Task 3: Public Draft of 2010 -2015 Consolidated Plan 10 16 0 $4,020
Task 4: Revised Public Draft of 2010 -2015 Consolidated Plan 4 8 0 $1,800
Task 5: Public Hearing 6 4 0 $1,740
Task 6: Final Revisions to Plan 4 4 0 $1,320
Subtotal BAE Labor 41 73 17 $18,900
Data (b) $200
Travel - Assuming total of one trip to Cupertino (b) $100
Grand Total $19,200
Notes:
Vice
President Associate Analyst
(a) Based on following hourly rates for BAE $210 $120 $90
(b) Billed at cost.
Any additional tasks and deliverables outside the scope of work would be conducted on a time and
materials basis according to the following hourly rates:
Managing Principal $280/hour
Principal $250/hour
Vice President $210/hour
Senior Associate $175/hour
Associate $120/hour
Analyst $90 /hour
Miscellaneous expenses such as data purchase are passed through to the client with no markup.
Timeline
Assuming timely submittal of comments to BAE and assistance from staff in preparing the
Strategic and Action Plans, BAE will conduct the scope of work according to the following
timeline:
Task 1: Start-Up Meeting 3/10/2010
Task 2: Administrative Draft of 2010 -2015 Consolidated Plan 3/26/2010
Task 3: Public Draft of 2010 -2015 Consolidated Plan 4/9/2010
Task 4: Revised Public Draft of 2010 -2015 Consolidated Plan 5/17/2010
Task 5: Public Hearing Late May
Task 6: Final Revisions to Plan Late May
Our goal is to allow the City to submit the Consolidated Plan to HUD by May 29, 2010. However,
it is possible that this compressed timeline may require the City to request an extension from HUD
into early August. We understand that HUD will allow late submittals assuming prior notice from
City staff, though submittal after August 16 may result in a loss of CDBG funds.
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN
CITY OF CUPERTIENO, CALIFORNIA
AND
BAY AREA ECONOMICS
EXHIBIT B
SCHEDULE OF FEES
In no event shall the amount billed to City by Contractor for Services performed under this
Agreement exceed nineteen thousand and two hundred dollars and no cents ($19,200) dollars,
subject to budget appropriations.
The fees to be charged by the Contractor under this Agreement are more fully described in the
Budget section of the Contractor's proposal entitled Cupertino Consolidated Plan Scope of
Work, Budget and Timeline, consisting of 4 pages, dated March 1, 2010, which is attached to
this Exhibit A and incorporated by this reference.
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Exhibit B
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN
CITY OF CUPERTINO, CALIFORNIA
AND
BAY AREA ECONOMICS
EXHIBIT C
INSURANCE REQUIREMENTS
Consultant shall provide and maintain at all times during the performance of the Agreement the
following insurances:
1. Workers' Compensation and Employer's Liability Insurance. Consultant agrees to carry Workers'
Compensation and Employer's Liability Insurance for protection of Consultant's employees as required by
law and as will protect Consultant from loss or damage because of personal injuries, including death, to any
of his employees.
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 and 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 Sing1.t Limit.
3. Comprehensive General Liability.
Insurance as will protect Consultant and City from any and all claims for damages or personal injuries,
including death, which may be 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
name 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
following:
a. Personal injury;
b. Bodily injury;
c. Property damage;
d. Broad form property damage;
e. Independent contractors;
f. Blanket contractual liability.
4. Consultant shall maintain a policy of professional 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.
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.
6. Consultant will furnish the City with certificates 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.
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Exhibit C
LIABILITY AND INDEMNIFICATION
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.
2. Consultant shall indemnify and save harmless 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 arising out of
negligent error, omission, or act of Consultant, its agents, servants, or employees in the performance of its
services under this Agreement.
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.
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.
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.
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.
7. To the maximum extent permitted by law, 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.
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Exhibit C