07-083, Republic ITS
P.O.#:
Contract Amount: $7,500
AGREEMENT
BETWEEN
CITY OF CUPERTINO
AND
REPUBLIC ITS
FOR
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT MADE AS OF June 28. 2007, BETWEEN CITY OF
CUPERTINO (hereinafter referred to as CITY), and REPUBLIC ITS (hereinafter
referred to as Consultant).
WITNESSETH:
WHEREAS, CITY intends to provide Consulting Services for Traffic Analysis of a
Proposed Hotel and Retail/Office Building at 21265 Stevens Creek Boulevard (Oaks
Shopping Center) (hereinafter referred to as Project) and,
WHEREAS, CITY requires certain professional services in connection with Project
(hereinafter referred as Services); and
WHEREAS, Consultant is qualified and prepared 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 are shown in Exhibit A.
1.2 Exhibit A will by reference incorporate the terms and conditions of this
Agreement, and become a formal amendments hereto.
ARTICLE 2 - COMPENSATION
2.1 Compensation for Consulting services performed under this Agreement shall be
billed and compensated on a lump sum basis.
2.2 Consultant shall submit monthly statements for Services rendered. City will make
payment within 30 days of receipt of Consultant's monthly statements.
ARTICLE 3 - PERIOD OF SERVICE
3.1 Consultant's services will be performed and the specified services rendered and
deliverables 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 in accordance with the
approved Scope of Services, 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 person with authority to act on City's behalf
on all matters concerning the Consultant's services. Colin Jung is the Project
Manager.
4.2 Furnish to Consultant all existing studies, reports and other available data
pertinent to the Consultant's services, obtain 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 with the requirements of this Section.
ARTICLE 5 - STANDARD OF CARE
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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 - SUBCONTRACTING
6.1 No subcontract shall be awarded by Consultant until prior written approval is
obtained from the City.
ARTICLE 7 - CONSULTANT-ASSIGNED PERSONNEL
7.1 Consultant shall designate in writing an 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 Consultanat
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 person.
ARTICLE 8 - OWNERSHIP OF DOCUMENTS
8.1 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 may be
accumulated by Consultant to complete services under this Agreement shall be
owned by the City.
8.2 Consultant shall retain custody of all project data and documents other than
deliverables specified in each Agreement, 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.
8.3 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. Any reuse without written verification or
adaptation by Consultant 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.
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ARTICLE 9 - RECORDS OF LABOR AND COSTS
9.1 Consultant shall maintain records oflabor and costs used in claims for
compensation under this Agreement. Records shall mean a contemporaneous
record of time for personnel 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.
9.2 After delivery of services under this Agreement, the Consultant's records of all
costs used in claims 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 project under this Agreement.
9.3 Consultant agrees to cooperate and provide any and all information concerning
the Proj ect costs that 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 over, the Services which are provided under
the Agreement.
9.4 Failure to provide documentation or substantiation of all Project costs used as a
factor in compensation paid under Article 2 hereofwill 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
other funds from agencies assisting City in financing the Services specified in this
Agreement.
ARTICLE 10 - INSURANCE
Consultant shall provide and maintain at all times during the performance of the
Agreement the following insurances:
1 0.1 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.
10.2 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 ofliability for
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Comprehensive Automobile Liability Insurance shall not be less than $1,000,000
Combined Single Limit.
10.3 Commercial General Liability. Insurance as will protect Consultant and
City from 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 and aggregate. Such
insurance will insure Consultant and City from claims arising from the following:
1. Personal injury;
2. Bodily injury;
3. Property damage;
4. Broad form property damage;
5. Independent contractors;
6. Blanket contractual liability.
10.4 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.
10.5 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.
ARTICLE 11 - LIABILITY AND INDEMNIFICATION
11.1 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.
11.2 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 to the extent arising out of negligent error,
omission, or act of Consultant, its agents, servants, or employees in the
performance of its services under this Agreement.
11.3 In the event an action for damages is filed in which negligence is alleged on the
part of City and Consultant, the parties agree that each party shall initially assume
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its own defense. The parties further agree that they shall share on a pro rata basis
all expenses of defense and any judgment or amount paid in resolution of such
claims. Such pro rata share shall be based upon a final judicial determination of
negligence or, in the absence of such determination, by mutual agreement.
11.4 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.
11.5 Indemnity provisions will be incorporated into all Project contractual
arrangements entered into by City and will protect City and Consultant to the
same extent.
11.6 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.
11.7 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.
ARTICLE 12 - INDEPENDENT CONTRACTOR
Consultant undertakes performance of the Services as an independent contractor and shall
be wholly responsible for the methods of performance. City will have no right to
supervise the methods used, but City will have right to observe such performance.
Consultant shall work closely with City in performing Services under this Agreement.
ARTICLE 13 - 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 Consulting Services for Traffic Analysis of a
Proposed Hotel and Retail/Office Building at 21265 Stevens Creek Boulevard (Oaks
Shopping Center). 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. Notwithstanding the foregoing, professional
services subject to this agreement shall be performed subject to the Standard of Care set
forth in Article 5.
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ARTICLE 14 - 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 15 - TERMINATION OF CONTRACT
15.1 CITY or CONSULTANT shall have the right to terminate this Agreement without
cause, by giving not less than thirty (30) days written notice of termination.
15.2 If CONSULTANT fails to perform any of its material obligations under this
Agreement, in addition to all other remedies provided by law, CITY may
terminate this Agreement upon thirty (30) days written notice if consultant fails to
take steps to correct such failure within the notice period.
15.3 CITY'S City Manager is empowered to terminate this Agreement on behalf of
CITY.
15.4 In the event of termination, CONSULT ANT shall deliver to CITY, copies of all
reports, documents, and other work performed by CONSULTANT under this
Agreement, an upon receipt thereof, CITY shall pay CONSULTANT for services
performed and reimbursable expenses incurred to the date of termination.
ARTICLE 16 - UNCONTROLLABLE FORCES
16.1 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 exercise 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.
16.2 Neither party shall, however, be excused 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 ofthis Article
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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
16.1 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 shall not affect the waiving party's rights with
respect to any other or further breach.
16.2 The invalidity, illegality, or unenforceability 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.
ARTICLE 17 - INTEGRATION AND MODIFICATION
17.1 This Agreement (consisting of pages 1 to 9), 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.
17.2 The Agreement may not be modified unless such modifications are evidenced in
writing signed by both City and Consultant.
ARTICLE 18-SUCCESSORS AND ASSIGNS
18.1 City and Consultant each binds itself and its directors, officers, partners,
successors, executors, administrators; assigns 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.
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18.2 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. Nothing contained in this paragraph shall
prevent Consultant from employing such 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.
18.3 Nothing herein shall be construed to give any rights or benefits to anyone other
than City and Consultant.
ARTICLE 19- EXECUTION
IN WITNESS THEREOF, the parties hereto have made and executed this Agreement as
of the day and year first above written.
City of Cupertino
Republic ITS
(CONSULTANT)
By
By:
\~
J,t.~ 0.~J '~Y)
Steve Fitzsimon " PE
Engineering Manaager
Date:
7/'5/07
/
Title:
Date:
7 (L I 07
CHARLES T. KILIAN
LEGAL COUNSEL
;4'" / .,/
^" // /~ '/1
~: /-:<' :-/ _ _ // .0// /.-_.0
By:~.t .::; .:.;} ~/ /
Legal Counsel /
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TASK ORDER NO.1
to
AGREEMENT
BETWEEN
CITY OF CUPERTINO
AND
REPUBLIC ITS
FOR
PROFESSIONAL SERVICES
Dated June 28. 2007
I. PURPOSE
The consultant shall provide Consulting Services for Traffic Analysis of a
Proposed Hotel and Retail/Office Building at 21265 Stevens Creek Boulevard
(Oaks Shopping Center) on behalf of the City of Cupertino for submission to the
Cupertino City Council according to the attached Exhibit A.
2. PROJECT COORDINATION
Project shall be coordinated with Colin Jung, Senior Planner, in the Community
Development Department. Consultant may need to coordinate work with other
City staff, the applicant (Sandhill Property Company) and the Oaks Shopping
Center management as directed.
3. SCOPE OF SERVICES
Attached Proposal for Consulting Services for Traffic Analysis of a Proposed
Hotel and Retail/Office Building at 21265 Stevens Creek Boulevard (Oaks
Shopping Center), Exhibit A, is hereby incorporated as part of this agreement.
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EXHIBIT A:
Consulting Services for Traffic Analysis of a Proposed Hotel and Retail/Office
Building at 21265 Stevens Creek Boulevard (Oaks Shopping Center)
The Consultant, REPUBLIC ITS, shall prepare a traffic study for a proposed land
use change at the Oaks Shopping Center in Cupertino, CA. The proposed change
would remove a theater and square feet of retail space and replace it with
either:
Option A:
A 121-room hotel and a mixed use building containing 19,800 square feet of
retail, 22,800 square feet of office and a 12,000 square-foot meeting
roomlbanquetl conference center;
OR
Option B:
A 137-room hotel and a mixed use building containing 14,000 square feet of
retail, 16,000 square feet of office and a 12,000 square-foot meeting
roomlbanquetl conference center.
The option selected to be analyzed will be the worst-case option.
The traffic study shall meet Valley Transportation Agency Guidelines and include
the following components:
. Studied Signalized Intersections
1. Stevens CreeklBubb Road
2. Stevens CreekINB 85 ramp
3. Stevens Creek/SB 85 ramp
4. Stevens CreeklMary Avenue
5. Stevens Creek/Stelling Road
6. Stevens Creek/Saich Way
7. Stevens CreeklBandley
8. Stelling/Greenleaf IDrive
9. StellinglMcClellan Road
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Ifit can be showned through a trip distribution that the amount ofproject traffic affecting
one or more of those intersections is negligible, the City may eliminate the intersection
from formal evaluation.
.
Turning Movement Counts for the Intersections Above
Count data should be when schools are still in session.
.
Trip distribution and assignment of project traffic;
.
Capacity analysis (a.m. and p.m. peaks) of intersections for
1) Existing Conditions
2) Background Conditions (Existing + Approved Projects)
3) Project Conditions (Existing + Approved Projects + Project
Traffic);
. Identification of traffic congestion, safety problems or other issues;
. An assessment of the change in roadway operation conditions resulting
from the project;
. Development and evaluation of potential mitigation measures, as
appropriate;
. Recommendations for site access improvements needed to maintain traffic
flow to, from, within and past the project site;
. Evaluation of on-site issues including driveways and circulation;
. If the project is anticipated to count Mary Avenue on-street parking
toward its parking requirements, the impact of this to existing parking demand on
Mary Ave. should be addressed.
For the traffic study (Task Order No.1) the cost ceiling shall be a lump sum payment of
$7,500. Presentations to City Boards or the City Council, including preparatory work, is
considered extra work and will be billed by the Consultant at an hourly rate of$175 per
hour.
G/planning/contractslREPUBLIC ITS
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