13-175 4Leaf, Inc., Consultant Services for Analysis of the Stocklmeir Property Buildings OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE •CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366
WEBSITE: www.cupe-tino.org
CUPERTINO
November 13, 2013
4Leaf, Incorporated
2110 Rheem Drive, Suite A
Pleasanton, CA 94588
RE: Agreement
Enclosed for your records is a fully executed original copy of your agreement with the
City of Cupertino. If you have any questions, please contact the Public Works Department
at (408) 777-3354.
Sincerely,
6
Dorothy Steenfott
Senior Office Assistant
cc: Public Works
Enclosure
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND 4LEAF,
INCORPORATED, FOR CONSULTANT SERVICES FOR ANALYSIS OF THE
STOCKLMEIR PROPERTY BUILDINGS
V, 4,60
THIS AGREEMENT, for reference dated 00t. 6 , 2013 is by and
between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to
as "City"), and 4LEAF, a California corporation, whose address is 2110 Rheem
Drive, Suite A, Pleasanton, CA 94588 (telephone: (925) 462-5959; fax (925) 462-
5958) (hereinafter referred to as "Consultant"), and is made with reference to the
following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its business
as it is now being conducted under the Constitution and the statutes of the State
of California and the Cupertino Municipal Code.
B. Consultant is specially trained, experienced and competent to
perform the special services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability,background,
certification and knowledge to provide the services described in this Agreement
on the terms and conditions described herein.
D. City and Consultant desire to enter into an agreement for structural
analysis and accessibility analysis upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as follows:
1. TERM:
The term of this Agreement shall commence on the date this agreement is
executed and shall terminate on December 31, 2013, unless terminated earlier
as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A".
titled "Scope of Services" which is attached hereto and incorporated herein by
this reference.
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Consultant Agreement with 4LEAF,Inc.
3. SCHEDULE OF PERFOMRANCE:
The Services of Consultant are to be completed according to the schedule
set out in Exhibit B, titled "Schedule of Performance ", which is attached hereto
and incorporated herein by this reference. -
.
4. COMPENSATION TO CONSULTAN
The maximum compenr�sation to be � to Consultant under this
agreement shall not exceed 'F4ie1e Thousand Dollars ($11,000). The rate of
payment is set out in Exhibit C, titled "Compensation", which is attached hereto
and incorporated herein.
Consultant shall furnish to City a detailed statement of the work performed for
compensation during the term of this Agreement. Consultant may submit
monthly invoices for interim progress payments during the course of each phase,
clearly stating as a minimum the total Contract amount, amount paid to date,
percent complete and amount due.
5. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the
performance of this Agreement.
6. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner
commensurate with the prevailing standards of like professionals in the San
Francisco Bay Area and agrees that all services shall be performed by qualified
and experienced personnel who are not employed by the City nor have any
contractual relationship with City.
7. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by
this Agreement is that of employer-independent contractor. The manner and
means of conducting the work are under the control of Consultant, except to the
extent they are limited by statute, rule or regulation and the express terms of this
Agreement. No civil service status or other right of employment will be acquired
by virtue of Consultant's services. None of the benefits provided by City to its
employees, including but not limited to,unemployment insurance, workers'
compensation plans,vacation and sick leave are available from City to
Consultant,its employees or agents. Deductions shall not be made for any state
or federal taxes,FICA payments,PERS payments, or other purposes normally
associated with an employer-employee relationship from any fees due
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Consultant Agreement with 4LEAF,Inc.
Consultant. Payments of the above items, if required, are the responsibility of
Consultant.
8. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity
and employment authorization of all of his/her employees performing work
hereunder, pursuant to all applicable IRCA. or other federal, or state rules and
regulations. Consultant shall indemnify and hold City harmless from and
against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Consultant.
9. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are
unacceptable employer/employee conduct, Consultant agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Consultant or Consultant's employee or subcontractor on the basis of race,
religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual orientation will not be tolerated.
Consultant agrees that any and all violations of this provision shall constitute a
material breach of this Agreement.
10. PROJECT COORDINATION
CITY: Director of Public Works shall be representative of City for all
purposes under this Agreement. Katy Jensen, is hereby designated as the
Director of Public Works' designee and Project Manager, and shall supervise the
progress and execution of this Agreement.
CONSULTANT: Consultant shall assign a single Consultant Project
Manager to have overall responsibility for the progress and execution of this
Agreement for Consultant. Should circumstances or conditions subsequent to
the execution of the Agreement require a substitute Consultant Project Manager
for any reason, the Consultant Project Manager designee shall be subject to the
prior written acceptance and approval of the City Project Manager. The
designated Consultant Project Manager shall be Craig Tole.
11. HOLD HARMLESS:
Indemnification:
A. Claims for Professional Liability.. Where the law establishes a standard
of care for Consultant's professional services, and to the extent the
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Consultant Agreement with 4LEAF,Inc.
Consultant breaches or fails to meet such established standard of care, or
is alleged to have breached or failed to meet such standard of care,
Consultant shall, to the fullest extent allowed by law, with respect to all
services performed in connection with the Agreement, indemnify, defend,
and hold harmless the City and its officers, officials, agents, employees
and volunteers from and against any and all liability, claims, actions,
causes of action or demands whatsoever against any of them, including
any injury to or death of any person or damage to property or other
liability of any nature, that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of Consultant or
Consultant's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation. Consultant shall not be obligated under this Agreement to
indemnify City to the extent that the damage is caused by the sole or
active negligence or willful misconduct of City, its agents or employees.
B. Claims for Other Liability. Consultant shall, to the fullest extent
allowed by law, with respect to all services performed in connection with
the Agreement, indemnify, defend, and hold harmless the City and its
officers, officials, agents, employees and volunteers against any and all
liability, claims, actions, causes of action or demands whatsoever from
and against any of them, including any injury to or death of any person or
damage to property or other liability of any nature, that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct
of Consultant or Consultant's employees, officers, officials, agents or
independent contractors. Such costs and expenses shall include
reasonable attorneys' fees of counsel of City's choice, expert fees and all
other costs and fees of litigation. Consultant shall not be obligated under
this Agreement to indemnify City to the extent that the damage is caused
by the sole or active negligence or willful misconduct of City, its agents or
employees.
C. Claims involving intellectual property. In addition to the
obligations set forth in (A) and (13) above, Consultant shall indemnify,
defend, and hold the City, its elected and appointed officers, employees,
and volunteers, harmless from and against any Claim in which a violation
of intellectual property rights, including but not limited to copyright or
patent rights, is alleged that arises out of, pertains to, or relates to
Consultant's negligence, recklessness or willful misconduct under this
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Consultant Agreement with 4LEAF,Inc.
Agreement. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation.
12. INSURANCE:
On or before the commencement of the term of this Agreement,
Consultant shall furnish City with certificates showing the type, amount, class of
operations covered, effective dates and dates of expiration of insurance coverage
in compliance with paragraphs 12A, B, C, I) and E. Such certificates, which do
not limit Consultant's indemnification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this
certificate be canceled or coverage reduced before the expiration date thereof, the
insurer affording coverage shall provide thirty (30) days' advance written notice
to the City of Cupertino by certified mail, Attention: City Manager." It is agreed
that Consultant shall maintain in force at all times during the performance of this
Agreement all appropriate coverage of insurance required by this Agreement
with an insurance company that is acceptable to City and licensed to do
insurance business in the State of California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following
minimum limits:
Bodily Injury: $500,000
each occurrence
$1,000,000
aggregate - all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate
limits in the amounts of$1,000,000 will be considered
equivalent to the required minimum limits shown above.
(3) Automotive:
Comprehensive automotive liability coverage in the
following minimum limits:
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Consultant Agreement with 4LEAF,Inc.
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
(4) Professional Liability:
Professional liability insurance which includes coverage for
the professional acts, errors and omissions of Consultant in
the amount of at least$1,000,000.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of:loss due to any of the perils for
which he/she has agreed to provide comprehensive general and automotive
liability insurance, Consultant shall look solely to his/her insurance for recovery.
Consultant hereby grants to City, on behall=of any insurer providing
comprehensive general and automotive liability insurance to either Consultant or
City with respect to the services of Consultant herein, a waiver of any right to
subrogation which any such insurer of said Consultant may acquire against City
by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Consultant at any time during the term hereof should fail to secure or
maintain the foregoing insurance, City shall be permitted to obtain such
insurance in the Consultant's name or as an agent of the Consultant and shall be
compensated by the Consultant for the costs of the insurance premiums at the
maximum rate permitted by law and computed from the date written notice is
received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council,boards and commissions, officers, employees and
volunteers shall be named as an additional insured under all insurance
coverages, except any professional liability insurance, required by this
Agreement. The naming of an additional insured shall not affect any recovery to
which such additional insured would be entitled under this policy if not named
as such additional insured. An additional insured named herein shall not be
held liable for any premium, deductible portion of any loss, or expense of any
nature on this policy or any extension thereof. Any other insurance held by an
additional insured shall not be required to contribute anything toward any loss
or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being
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Consultant Agreement with 4LEAF,Inc.
sufficient to protect Consultant. Consultant is advised to confer with
Consultant's insurance broker to determine adequate coverage for Consultant.
13. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to
perform the services required by this Agreement. Consultant may be required to
fill out a conflict of interest form if the services provided under this Agreement
require Consultant to make certain governmental decisions or serve in a staff
capacity as defined in Title 2, Division 6, SF-ction 18700 of the California Code of
Regulations.
14. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease,hypothecate, or transfer this
Agreement, or any interest therein, directly or indirectly,by operation of law or
otherwise, without prior written consent of City. Any attempt to do so without
said consent shall be null and void, and any assignee, sublessee, hypothecate or
transferee shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer. However, claims for money by
Consultant from City under this Agreement may be assigned to a bank, trust
company or other financial institution without prior written consent. Written
notice of such assignment shall be promptly furnished to City by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner
or joint venturer or syndicate member or cotenant, if Consultant is a partnership
or joint venture or syndicate or cotenancy, which shall result in changing the
control of Consultant, shall be construed as an assignment of this Agreement.
Control means fifty percent (50%) or more of the voting power of the
corporation.
15. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and
subcontractors whose names are included in this Agreement shall be used in the
performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors
shall be required to furnish proof of workers' compensation insurance and shall
also be required to carry general, automobile and professional liability insurance
in reasonable conformity to the insurance carried by Consultant. In addition,
any work or services subcontracted hereunder shall be subject to each provision
of this Agreement.
16. PERMITS AND LICENSES:
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Consultant Agreement with 4LEAF,Inc.
Consultant, at his/her sole expense, shall obtain and maintain during the
term of this Agreement, all appropriate permits, certificates and licenses
including,but not limited to, a City Business License, that may be required in
connection with the performance of services hereunder.
17. REPORTS:
A. Each and every report, draft, work product, map, record and other
document,hereinafter collectively referred to as "Report", reproduced, prepared
or caused to be prepared by Consultant pursuant to or in connection with this
Agreement, shall be the exclusive property of City. Consultant shall not
copyright any Report required by this Agreement and shall execute appropriate
documents to assign to City the copyright to Reports created pursuant to this
Agreement. Any Report, information and data acquired or required by this
Agreement shall become the property of City, and all publication rights are
reserved to City. Consultant may retain a copy of any report furnished to the
City pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in
execution or implementation of:
(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to the original project; and/or
(4) Other City projects as appropriate.
C. Consultant shall, at such time and in such form as City may
require, furnish reports concerning the status of services required under this
Agreement.
D. All Reports required to be provided by this Agreement shall be
printed on recycled paper. All Reports shall be copied on both sides of the paper
except for one original, which shall be single sided.
E. No Report, information or other data given to or prepared or
assembled by Consultant pursuant to this Agreement shall be made available to
any individual or organization by Consultant without prior approval by City.
F. Electronic and hard copies of Consultant's work product shall
constitute the Project deliverables. Plans to be in CAD and PDF formats, and
other documents to be in Microsoft Word and PDF formats. City holds
Consultant harmless for any modifications to the documents.
18. RECORDS:
Consultant shall maintain complete and accurate records with respect to
sales, costs, expenses, receipts and other such information required by City that
relate to the performance of services under this Agreement.
Consultant shall maintain adequate records of services provided in
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Consultant Agreement with 4LEAF,Inc.
sufficient detail to permit an evaluation of services. All such records shall be
maintained in accordance with generally accepted accounting principles and
shall be clearly identified and readily accessible. Consultant shall provide free
access to such books and records to the representatives of City or its designees at
all proper times, and gives City the right to examine and audit same, and to
make transcripts there from as necessary, and to allow inspection of all work,
data, documents, proceedings and activities related to this Agreement. Such
records, together with supporting documents, shall be kept separate from other
documents and records and shall be maintained for a period of three (3) years
after receipt of final payment.
If supplemental examination or audit of the records is necessary due to
concerns raised by City's preliminary examination or audit of records, and the
City's supplemental examination or audit of the records discloses a failure to
adhere to appropriate internal financial controls, or other breach of contract or
failure to act in good faith, then Consultant shall reimburse City for all
reasonable costs and expenses associated with the supplemental examination or
audit.
19. NOTICES:
All notices, demands, requests or approvals to be given under this
Agreement shall be given in writing and conclusively shall be deemed served
when delivered personally or on the second.business day after the deposit
thereof in the United States Mail, postage prepaid, registered or certified,
addressed as hereinafter
provided.
All notices, demands, requests, or approvals from Consultant to City shall
be addressed to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Katy Jensen, CIP Manager
All notices, demands, requests, or approvals from City to Consultant shall
be addressed to Consultant at:
4Leaf, Inc.
2110 Rheem Drive, Suite A
Pleasanton, CA 94588
Attention: Craig Tole
20. TERMINATION:
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Consultant Agreement with 4LEAF,Inc.
In the event Consultant fails or refuses to perform any of the provisions
hereof at the time and in the manner required hereunder, Consultant shall be
deemed in default in the performance of this Agreement. If such default is not
cured within the time specified after receipt by Consultant from City of written
notice of default, specifying the nature of such default and the steps necessary to
cure such default, City may terminate the Agreement forthwith by giving to the
Consultant written notice thereof.
City shall have the option, at its sole discretion and without cause, of
terminating this Agreement by giving seven (7) days' prior written notice to
Consultant as provided herein. Upon termination of this Agreement, each party
shall pay to the other party that portion of compensation specified in this
Agreement that is earned and unpaid prior to the effective date of termination.
In the event of termination, Consultant shall deliver to City, copies of all
reports, documents, and other work performed by Consultant under this
Agreement.
21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances,
rules and regulations enacted or issued by City.
22. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of
the State of California excepting any choice of law rules which may direct the
application of laws of another jurisdiction. The Agreement and obligations of the
parties are subject to all valid laws, orders, rules, and regulations of the
authorities having jurisdiction over this Agreement (or the successors of those
authorities.)
Any suits brought pursuant to this i�greement shall be filed with the
courts of the County of Santa Clara, State of California.
23. ADVERTISEMENT:
Consultant shall not post, exhibit, display or allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any
kind pertaining to the services performed under this Agreement unless prior
written approval has been secured from City to do otherwise.
24. WAIVER:
A waiver by City of any breach of ally term, covenant, or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant, or condition contained herein, whether of
the same or a different character.
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Consultant Agreement with 4LEAF,Inc.
22. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary
negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions
hereof. Any modification of this Agreement will be effective only by written
execution signed by both City and Consultant.
GIFTS:
A. Consultant is familiar with City's prohibition against the acceptance of
any gift by a City officer or designated employee, which prohibition is found in
City Administrative Procedures.
B. Consultant agrees not to offer any City officer or designated employee any
gift prohibited by the Administrative Procedures.
C. The offer or giving of any prohibited gift shall constitute a material breach
of this Agreement by Consultant. In addition to any other remedies, City may
have in law or equity, City may termina to this Agreement for such breach as
provided in Section 19 of this Agreement.
25. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the
Agreement shall be deemed to be enacted herein, and the Agreement shall be
read and enforced as though each were included herein. If through mistake or
otherwise, any such provision is not inserted or is not correctly inserted, the
Agreement shall be amended to make such insertion on application by either
party.
26. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of
the Agreement and in no way affect, limit or amplify the terms or provisions of
this Agreement.
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Consultant Agreement with 4LEAF,Inc.
P.O. No. L z1_��` z
IN WITNESS WHER F, the parties have caused the Agreement to be
executed.
CONSULTAN CITY OF CUPERTINO
4LEAF, Inc. A Municipal Corporation
By I .� ycFrl� vt, By`
Timm Borden, Director of Public Works
Name 6enif
Date i c �I
Title If�Ge �5� e
Date
Tax I.D. No.: 1-t 3Sy ISM Y
�.VIK ED AS TO FORM
Address:2 110 Rheem Drive, Suite A Carade, Cit Attore
Y Y
Pleasanton, CA 94588
,�.TTEST:
Grace Schmidt, City Clerk
Contract Amount: 4V i a,
.Account No. : t(Q - 910(- 7C(4
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Consultant Agreement with 4LEAF,Inc.
EXHIBIT "A"
SCOPE OF SERVICES
ANALYSIS OF THE STOCKLMEIR PROPERTY BUILDINGS
CITY OF CUPERTINO, CALIFORNIA
This is an exhibit attached to, and made a part of, the Consultant Services
Agreement between the City of Cupertino ("'City,"') and 4LEAF, Incorporated
("Consultant") for the provision of professional engineering services ("Services").
The duties and services for Consultant on the Stocklmeir site, include the elements
listed below:
Task 1 —Structural Analysis and Report-
a. Perform structural analysis of the Stocklmeir house with consideration of its
future use as a as a public venue—for example as a park office which would
have services to the public, or as a lease to a service organization to provide a
public service;
b. Perform structural analysis of the two garages at the Stocklmeir site;
c. Deliverable: report—structural condition of the house and garages, and
recommendations as to what would need to be done to make the house
building structurally suitable for future intended use.
Task 2—CASp Inspection and Report—
a. Assessment of the accessibility of the Stocklmeir house with consideration of
its future use as a as a public venue--for example as a park office which
would have services to the public, ox as a lease to a service organization to
provide a public service;
b. Deliverable: report—status of the house and recommendations as to what
will minimally need to be done to provide code compliant access from the
right-of-way to the house and then within the house.
Consultant shall be responsible to coordinate all Sub Consultants as required for each
phase.
END OF EXHIBIT "A"
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Consultant Agreement with 4LEAF,Inc.
Exhibit A—Scope of Services
EXHIBIT "B"
SCHEDULE OF PERFORMANCE
ANALYSIS OF THE STOCKLMEIR PROPERTY BUILDINGS
CITY OF CUPERTINO, CALIFORNIA
This is an exhibit attached to, and made a part of this Consultant Services
Agreement with THE CITY OF CUPERTINO ("City") and 4LEAF, Incorporated,
("Consultant") for the provision of professional engineering services ("Services").
SCHEDULE
Duration
from
Notice to
Task Proceed Completion Date
Tasks 1 &2 6 weeks November 22,2013
END OF EXHIBIT "B"
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Consultant Agreement with 4LEAF,Inc.
Exhibit B—Schedule of Performance
EXHIBIT "C"
COMPENSATION
ANALYSIS OF THE STOCKLMEIR PROPERTY BUILDINGS
CITY OF CUPERTINO, CALIFORNIA
This is an exhibit attached to, and made a part of,the Consultant Services Agreement
between the City of Cupertino ("City") and 4LEAF, Incorporated ("Consultant")for the
provision of professional engineering services ("Services").
Consultant Compensation
The Maximum Total Compensation under this agreement for all services is$11,000.00.
Basic Services
Estimated fees for the work tasks are as listed below. The Consultant, with written approval of
the City, shall be allowed to shift funding from one task to another, with the understanding that
the total funding shall not exceed$8,925 without a fully executed amendment to this Agreement.
Est. Hourly Estimated
Task Hours Rate Total
Task 1—Structural Analysis and Report 40 $131.25 $5,250.00
Task 2—CASp Inspection and Report 20 $183.75 $3,675.00
Maximum Tota. $8,925.00
Additional Services
An Additional Services budget of$2,075.00 is included in the agreement. Additional services, if
required,shall be performed only after receiving written authorization from the City in the form
of an Additional Service Directive (ASD), and shall be performed on a time basis,in accordance
with the Hourly Rate Schedule below:
Hourly Rates
Civil Engineer-$131.25 per hour
CASp Professional-$183.75 per hour
All hourly rates shown include a 5%Project Management&Administration charge.
END OF EXHIBIT "C
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Consultant Agreement with 4LEAF,Inc.
Exhibit C—Compensation