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14-155 Keyser Marston Associates for Nexus Study Update OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 TELEPHONE: (408)777-3223• FAX: (408)777-3366 C U P E RT f N O WEBSITE:www.cupertino.org September 22, 2014 Keyser Marston Associates 160 Pacific Avenue, Suite 204 Golden Gateway Commons San Francisco, CA 94111 Re: Agreement for consultant services. A fully executed copy of the agreement for consultant services with the City of Cupertino is enclosed. If you have any questions or need additional information, please contact the Community Development Depar hnent at (408) 777-3308. Sincerely, Andrea Sanders Senior Office Assistant City Clerk's Office Enclosure cc: Community Development AGREE M- ENT BETWEEN THE CITY OF CUPERTINO AND'-KEYSER_ -) r � MA ASSOCIATES INC. FOR CONSULTANT SERVICES FOR NEXUS STUDY UPDATE aTH�tGREEJMENT, for reference dated September 1, 2014, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and Keyser Marston Associates Inc.a California corporation, whose address is 160 Pacific Avenue, Suite 204, Golden Gateway Commons, San Francisco, California 94111_ (hereinafter referred to as "Consultant"), and is made with reference to the following: RECITALS: A. City is a municipal corpora.ion 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 b,,- 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 i'o enter into an agreement for 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 September 1, 2014, and shall terminate on June 30, 2015, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED: Consultant shall perform each and every service set forth in Exhibit "A" which is attached hereto-and incorporated herein by this reference. 3. COMPENSATION TO CONSULTANT: Consultant shall be compensated for services performed pursuant to this Agreement in the amount set forth in Exhibit "B" which is attached hereto and Page 1 of 14 incorporated herein by this reference. Payment shall be made by checks drawn on the treasury of the City, to be taken from the 265-7405 fund. For the full performance of this Agreement, CITY shall pay CONSULTANT: $83,200.00. Payment will be made by the City on a reimbursement basis each month. The Consultant shall submit a monthly invoice with supporting documentation to the City. Upon receipt of the monthly invoice from the Consultant the City will review the invoice along with supporting documentation. Only upon satisfactory review of the invoice and supporting documentation will the City disburse funds to the Consultant. 4. TIME IS OF THE ESSENCE: Consultant and City agree that time is of the essence regarding the performance of this Agreement. 5. 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. 6. 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 Consultant. Payments of the above items, if required, are the responsibility of Consultant. 7. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of lusher 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 Page 2 of 14 i against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 8. 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 violatiions of this provision shall constitute a material breach of this Agreement. 9. HOLD HARMLESS: Indemnification: 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 wh�Lt:soever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to the negligence, recklessness, or willful misconduct in the performance of this Agreement by Consultant or Consultant's erriployees, 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. A. Claims for Professional Li_abili Where the law establishes a standard of care for Consultant's professional services, and to the extent the 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 Page 3 of 14 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. 10. 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 10 A, B, C, D 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: Page 4 of 14 Statutory coverage as required by the State of California. (2) Liabili : 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: Bodily Injury: $500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Lirnit: $500,000 each occurrence (4) Professional Liabilii.37: 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 behalf 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 tl-le 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 Page 5 of 14 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 sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. 11. 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, Section 18700 of the California Code of Regulations. 12. 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 Page 6 of 14 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. 13. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names and resumes are attached to 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. 14. PERMITS AND LICENSES: 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. 15. REPORTS: A. Each and every report, draft, work product, map, record and other document, with the exception of Consultant's proprietary computer models, 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. Page 7 of 14 i 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. 16. 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 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 therefrom 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. 17. 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 Page 8 of 14 Attention: Senior Housing Planner All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: Keyser Marston Associates, Inc. 160 Pacific Avenue, Suite 204 Golden Gateway Commons San Francisco, California 94111 Attn: Senior Principal 18. NONDISCRIMINATION Consultant certifies and agrees that he/she will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, sex, age, or condition or physical or mental handicap (as defined in 41 C.F.R. Section 60-741, et. seq.), in accordance with requirement of state or federal law. Consultant shall take affirmative action to ensure that qualified applicants are employed and that employees are treated during employment without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap in accordance with requirements of state and federal law. Such shall include, but not be limited to, the following: A. Employment upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. B. Selection for training, including interns and apprentices. Consultant agrees to post in conspicuous places in each of Consultant's facilities providing services hereunder, available and open to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. Consultant shall, in all solicitations or advertisements for employees placed by or on behalf of Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, ancestry, sex, age, or conrli lion of physical or mental handicap, in accordance with requirements of state and federal law. Consultant shall send to each labor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding a notice advising the labor union or workers' representative of Consultant's commitments under this paragraph. Page 9 of 14 Consultant certifies and agrees that he/she will deal with his/her subcontractors, bidders, or vendors without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap, in accordance with requirement of state and federal law. In accordance with applicable state and federal law, Consultant shall allow duly authorized county, state and federal representatives access to his/her employment records during regular business hours in order to verify compliance with the anti-discrimination provisions of this paragraph. Consultant shall provide such other information and records as such representatives may require in order to verify compliance with the anti-discrimination provisions of this paragraph. If the City finds that any of the provisions of this paragraph have been violated, the same shall constitute a material breach of Agreement upon which City may determine to cancel, terminate, or suspend this Agreement. City reserves the right to determine independently that the anti-discrimination provisions of this Agreement have been violated. In addition, a determination by the California Fair Employment Practices Commission or the Federal Equal Employment Opportunity Commission that Consultant has violated state and federal anti-discrimination laws shall constitute a finding by City that Consultant has violated the anti-discrimination provisions of this Agreement. The parties agree that in the event Consultant violates any of the anti- discrimination provisions of this paragraph, City shall be entitled, at its option, to the sum of$500.00 pursuant to California Civil Code Section 1671 as liquidated damages in lieu of canceling, terminating,.or suspending this Agreement. Consultant hereby agrees that he/she will comply with Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794), all requirements imposed by the applicable regulations (45 C.F.R.), and all guidelines and interpretations issued pursuant thereto, to the end that no qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity of Consultant receiving Federal Financial Assistance. In addition, Consultant shall comply with the Uniform Federal Accessibility Standards, and Contractor, Engineer, or Architect responsible for any design, construction or alteration shall certify compliance with those Standards. Consultant's attention is directed to laws, including but not limited to: A. CIVIL RIGHTS/EQUAL OPPORTUNITY (1) Civil Rights Act of 1964. Under. Title VII of the Civil Rights Act of 1964, no person shall, on the grounds of race, sex, religion, color, or national origin, be excluded from participation in, be denied the benefits of, or be Page 10 of 14 subjected to discrimination under any program or activity receiving Federal financial assistance. (2) Section 109 of the Housing and Community Development Act of 1974. No person in the United States shall, on the grounds of race, color, national origin, or sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program-or activity funded in whole or in part with funds made available under this title. Section 109 of the Act further provides that any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) shall also apply to any program or activity funded in whole or in part with funds made available pursuant to the Act. B. PROGRAM ACCESSIBILITY FOR INDIVIDUALS WITH DISABILITIES This Agreement is subject to laws and regulations concerning the rights of otherwise qualified individuals with handicaps for equal participation in, and benefit from federally assisted programs and activities, including but not limited to: (1) Americans with Disabilities Act of 1990 (ADA) (28 CFR 35). Title II, Subpart A of the Americans with Disabilities Act of 1990 applies to all publicly funded activities and programs. Consultant shall also comply with the public accommodations requirements of Title III-of the ADA, as applicable. (2) Nondiscrimination on the Basis of Handicap (24 CFR 8). These regulations, which implement Section 501 of the Rehabilitation Act of 1973, as amended, and as cited in Section 109 of the Housing and Community Development Act, apply to all federally assisted activities and programs and are implemented through the regulations at 24 CFR 8. (3) Architectural Barrier Aci of 1968. Any building or facility, excluding privately owned residential structures, designed, constructed, or altered with federal funds, shall comply with the Uniform Federal Accessibility Standards, 1984 (41 CFR 3) and the Handicapped Accessibility Requirements of the State of California Title 24. The Consultant, Engineer or Architect responsible for such design, construction or alteration shall certify compliance with the above standards. (4) In resolving any conflict between the accessibility standards cited in paragraphs (1), (2) and (3) above, the more stringent standard shall apply. 19. TERMINATION: In the event Consultant fails or refuses to perform any of the provisions Page 1.1 of 14 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 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. 20. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. 21. 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 Agreement shall be filed with the courts of the County of Santa Clara, State of California. 22. 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. 23. WAIVER: A waiver by City of any breach of any 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. 24. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary Page 12 of 14 negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenarit 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 ConsUl.tant. 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. Page 13 of 14 M1 IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT CIITY OF CUPERTINO Keyser Marston Associates, Inc. -A, Municipal Corporation David Doez ma A.arti Shrivastava By: ,By: / Title: Principal 'Title: Assistant City Manager Date • _,3 2 �'� .Cute: 0,9/0,?/-/ APPROVED AS TO FORM: lC. rol Korade, City Attorney ATTEST: / r Grace Schmidt, City Clerk EXPENDITURE DISTRIBUTION ACCOUNT NUMBER AMOUNT 265 77405-9331 Original Contract: $83,200.00 Total: $83,200.00 Page 14 of 14 EXHIENT A SCOPE OF SERVICES A. ANALYSIS TASKS The following Scope of Services has been designed to respond to the Nexus Study Update Request for Budget Proposal. We have also basE:d the Scope on our prior work for Cupertino and our understanding of Cupertino's needs and situation. This scope is also based on our extensive experience with nexus supported programs and updates in the current legal environment. The proposed scope envisions three separate report documents in the event they proceed separately or to possibly satisfy certain legal requirements. This procedure will not result in additional work for KMA. They may be bound t0(?ether and could serve as appendices to a concise summary and recommendations report. 1. Residential Nexus Analysis The following tasks will be undertaken to conduct a residential nexus analysis and an analysis of on-site compliance equivalent costs for the Cite of Cupertino. a. Project Initiation and Analysis Parameters To initiate the residential tasks, we recommend a worksession, either as a conference call or in person, to discuss the major parameters of the analysis, data needs, begin identifying the residential prototypes, and discuss relevant issues. KMA will prepare an agenda and an outline of analysis decisions, as well as a data or materiels request list. Since the commercial component is an update, we believe initiating both the residential and commercial together will be very manageable. b. Current Market Survey Prototype Development, Market Survey, Market Prices and Rent Levels A market survey will be undertaken to establish rniarket values for the various residential types or products subject to the Housing Mitigation Program in Cupertino. The rent levels and market values are the starting place of the nexus analysi=s. KMA will first review any materials provided by the, City and will then survey additional materials on recently developed rental and ownership housing to determine prototypical product types. Information will be developed on each prototype, including building description, square foot area of units, number of bedrooms, parking location and number of spaces, market rate sales prices, PagEi 1 EXHIBIT A SCOPE OF SERVICES rent levels, etc. KMA will be particularly interested in projects in the pipeline to ensure that the prototypes represent projects that are likely to occur in Cupertino over the next several years. KMA also suggests that the City consider expanding the range of prototypes to include one or more small projects (under six units) including individual single family detached homes since with an impact fee structure, charging individual units is more readily acceptable. For each prototype, KMA will conclude on market sales price or rent level per unit and per square foot of the prototypical units. Affordable Sales Prices, Rent Levels and Affordability Gaps KMA will use the City calculations for current affordable sales prices and rent levels by unit type and unit size. Alternatively, KMA could perform the calculations following a discussion of standards used in the analysis. KMA will confer with City staff to establish suitable affordable units and development costs for affordable projects typically assisted by the City. Models would be any projects, recently developed or in the pipeline that are all affordable. The affordability gaps will be computed based on the difference between the costs of development and the affordable unit values, with and/or without tax credits and other forms of non-local assistance. c. Residential Nexus Analysis KMA will prepare a residential nexus analysis that demonstrates and quantifies the relationship between market rate and affordable housing. The analysis links the addition of new market rate units in Cupertino to increased demand for affordable housing, and the cost of mitigating the new demand. The analysis will track and quantify a series of steps commencing with the rent/ price/value of the new market rate unit (as developed in Task 1 a), the income of the household that buys or rents it, the consumption of goods and services of the household, the new jobs generated by that consumption, and the fact that some of the jobs have lower paying compensation levels that result in new worker households needing affordable housing. To conduct the analysis, KMA uses two models: the IMPLAN model, which is purchased, and KMA's proprietary jobs-housing nexus model. The IMPLAN model is a commercially available model that was developed roughly thirty years ago and has been refined over the years. It is widely used in planning applications throughout the U.S. Starting with the price/rent level of the new unit, household income will be computed, the starting point of the IMPLAN model. The IMPLAN model will use data for Santa Clara County. Page 2 EXH1131T A SCOPE OF SERVICES The output of the IMPLAN model is the number of jobs in various industry categories in considerable detail that are associated with the consumer spending of new households. The next portion of the nexus analysis uses the K.MA jobs housing nexus model, developed over 25 years ago for jobs housing impact fee programs and refined over the years. This model analyzes the compensation levels of the new jobs generated and resulting household income. The KMA model imports local wage and salary data from the California Employment Development Department (EDD). The output of the, KMA model is the number of employee households at various income affordability levels. :Dee Non-residential task description for more detail. The last step in the analysis establishes a mitigation cost, or cost to deliver housing to the lower income affordability levels, using the affordability gaps, developed in Task 1(B). The mitigation cost establishes the maximum affordable housing fee level supported by the nexus analysis. d. BMR and Residential Fee Programs in Fivo Other Jurisdictions KMA will summarize the BMR and/or Residential Impact Fee Programs in other jurisdictions of interest to Cupertino. At the kick off work session;, KMA and City staff will select up to five jurisdictions of interest to Cupertino. Typically the neighboring jurisdictions are of greatest interest and/or those communities seen as similar to Cupertino. KMA will assemble information on current BMR requirements, in lieu and/or impact fee levels-and other information of interest. 2. Non Residential Nexus Analysis The tasks for the non residential nexus analysis I;cope consist of essential tasks for an update including preparation of the nexus analysis and report documentation and ancillary tasks. The analysis will follow the same methodology as usEd in the 2004 KMA analysis prepared for the City. a. Project Initiation and Analysis Parameters To initiate the work program, KMA and City staff will discuss the range of prototypical commercial and industrial projects now subject to the program in Cupertino and whether any adjustments are desirable. For purposes of this scope and budget estimate, we assume that the program will continue to cover commercial, office and hotel uses, and industrial, looking at five or six prototypes. The City might consider expanding the program to cover activity not currently covered, such as medical or more types of industrial. Page 3 EXHIBIT A SCOPE OF SERVICES b. Quantitative Nexus Analysis This section produces the quantitative nexus analysis that meets the requirements of Government Code sections 66000 et. seq. to demonstrate the relationships between the construction of the building types under study and the mitigation required (the impact fee). b(1). The Jobs-Housing Nexus Model The model used for the commercial nexus analysis is the same used in the residential nexus analysis, thus accomplishing cost savings. For the commercial nexus, unemployment estimates and detailed inputs on employee occupation and compensation specific to the commercial prototypes will need to be added. KMA developed the model over 25 years ago for linkage fee programs and has updated and refined the model over the year. The model will be input with current data drawn from readily available, published government sources that provide cross matrices of occupations by industry types, and local, recent compensation data from the state Employment Development Department. For ease of analysis and understanding, we normally conduct the analysis on prototype buildings of 100,000 square feet. At the conclusion of the analysis, the findings are divided by the building size to express the linkage in fractions of housing units. The analysis will contain the following steps or subtasks: • Category or Building Type Definitions— See project initiation. • Translation to Number of Employees— Findings on employment density and trends will be utilized in this section to estimate the number of employees associated with the prototype building. • Adjustments for Workers Per Household— Using U.S. Census data, the number of employees will be adjusted to the number of households. • Allocation of Employee Households to Income Categories—The nexus model then distributes the employees into an allocation by occupation and from occupation to income level using local wage and salary inputs. To calculate household income, the model employs a distribution of the number of workers per household by household size. For example, four-person households can have one, two, three, or four workers in the household. The model uses Census data to develop a distribution of the number of the workers per worker household, by household size. The new employee households are then placed into income categories based on household size and household income. Page 4 EXH1131T A SCOPE OF SERVICES • Conclusions on the Number of Households at Each Income Category—The conclusions are first expressed for the total prototype building and then converted to the per square foot level. The analysis produces findings on the number of housing units for each income classification. • Commute Relationships and Possible Adiustments—This task entails an examination of the commute relationships and other factors for modifying the analysis findings. b(2) Supported Fee Levels As with the Residential Nexus Analysis, this task provides the dollar link between the nexus findings and the cost of mitigation to determine the maximum justifiable fee level. The affordability gap for each income level is applied to the number of units per square foot of building area to produce the total nexus cost, or the highest fee level supported by the analysis. c. Potential Overlap: Residential and Non-Residential Nexus Analyses There is a degree of overlap between jobs countE d for purposes of a residential nexus and jobs counted in a non-residential jobs-housing nexus. 'The extreme example is a mixed-use retail / residential project where the retail almost exclusiVely serves the new residents in the project. In this instance, residential and non-residential nexus analyses would each be counting the same jobs. While there is some overlap that needs to be addressed, the non-residential nexus analysis counts many jobs that are not included in the residential nexus, for example, tech sector jobs. KMA advises jurisdictions where nexus-based housing mitigation fees are in place or proposed for both residential and non-residential development to do an analysis demonstrating that combined fees do not exceed the amount supported by the nexus after accounting for potential overlap. d. Total Development Cost Context In this task, each of the prototypes analyzed in the nexus analysis is also subject to an analysis of total development costs. KMA will assemble information on land cost, construction, on and off-site costs, all applicable fees and permits (for which City assistance is assumed) financing and other costs to determine total development costs for each of the four to eight prototype projects. These total cost figures provide a context against which to evaluate alternative fee levels and perhaps adjust fees for some prototypE!S to reflect specific market conditions, City policy objectives, and other variables. This task was included in the 2004 KMA analysis. Data sources will include KMA's own in house resources and any information on projects in Cupertino that can be made available to KMA, on a confidential basis if necessary. For land Page 5 EXHIBIT A SCOPE OF SERVICES costs, KMA can research recent transactions and use other sources, although any City provided information will be greatly appreciated and allow use of budget elsewhere. e. Housing Impact Fees on Commercial in Five Other Jurisdictions Again at the kick off work session, KMA and City staff will select up to five cities that have housing impact fees on non-residential development. KMA will assemble information on current fee levels and other program features of interest. 3. Update "Housing Mitigation Procedural Manual" KMA will update the "Housing Mitigation Procedural Manual" to: 1) reflect the policies and fee levels to be adopted by the City Council; and 2) comply with the findings of recent court cases regarding inclusionary requirements on rental housing. At this time, the key components that we anticipate updating are as follows: 1. Replacing the on-site inclusionary requirements on rental units with affordable housing impact fees; 2. Revising the "in lieu" fee requirements on ownership units to reflect the adopted fees and replacing the "in Lieu' terminology with "impact fee" terminology; 3. Replacing "in lieu" requirements on ownership units to "impact fee" requirements; 4. Updating the commercial impact fee requirements based on the findings of the nexus analysis and the fee levels adopted by the City; 5. Provide more specificity regarding the application of fees; 6. Exhibits A and B; 7'. Revising the language in Section 2.02.02 regarding condominium units that are used as rental housing to comply with the findings of the Palmer case; and 8. Other minor language changes. A preliminary draft of the manual with will be submitted upon the completion of the nexus analysis. The manual will be finalized after the City Council adopts new policies and fee levels. KMA will work closely with City staff and with the Goldfarb & Lipman (City's legal counsel) to ensure that the manual is consistent with the law and recommended legal practices. Page 6 EXH1131T A SCOPE OF SERVICES B. PROPOSED PROCESS KMA proposes several conference calls and meetings to conduct the work program. The conference calls are more cost efficient and usually are sufficient for portions of an update program. For budgeting purposes we have suggested conference calls with the exception of the work session to discuss analysis results and formulate recommendations (if so requested, with staff.) We can be available to do more or all meetings in person if that is the City's preference. Project Initiation/Kick-Off Work Session or Conference Call KMA will prepare in advance a suggested agenda to cover the range of topics suitable for initiating both the residential and non-residential portions of the work program. Prior to the work session, KMA will review materials on the current program, Housing Element, and other materials the City staff provides or advises. Prior to the work session, KMA will also prepare an initial list of prototypes projects for both the residential and non-residential analysis. These will be for discussion purposes and will be modified later by the results of the survey tasks. Another agenda item will outline analysis parameters and choices for the conduct of the analyses. KMA will also prepare data request lists for both analyses. There are no data required for the conduct of these analyses that cities do not ordinarily have readily available. In some cases we request information in the interest of consistency with other applications in the city (such as employment density in buildings.) Interim Conference Calls For the residential nexus analysis, it is helpful to have a conference call after the completion of the surveys and current market conditions tasks. At this conference call, prototypes can be "finalized" before proceeding to the Residential Nexus Analysis. Any issues with respect to affordable sales prices and rent levels, and resulting gaps should also be resolved. For the commercial nexus analysis, a conference call to finalize prototypes and selected assumptions would be advisable before initiating the nexus analysis. Preliminary Results Work Session After the nexus analyses and other related tasks have been completed, we recommend an interim work session with City staff. At this meeting we will bring table sets summarizing the analyses and results. KMA will present the analysis and findings and discuss any possible adjustments, implications for possible fees for Cupertino and other topics. We would expect to discuss recommendations and remaining process and products. Page.! 7 EXHIBIT A SCOPE OF SERVICES Following the work session, KMA will proceed to make any adjustments to the analyses (and forward them to City staff) and then draft the reports summarizing the analysis and findings. On-going Communications KMA anticipates on-going communications via e-mail and telephone over the conduct of the assignment. All KMA staff working on this contract will be available as needed. Staff Support The RFP requests a description of the level and type of staff support. Other than working with the Project Manager, no additional staff support is assumed. The Project Manager will be asked to facilitate City input for such things as information on the City's fees for the development of projects. Other requests may be made in a "if available" context such as inputs for Task 2d. Total Development Costs. No information will be relied upon from the City that is not readily available. Community Meetings Per the RFP, KMA will be available for six community meetings, including Planning Commission and City Council. KMA will make presentations of the analyses, findings and recommendations KMA anticipates preparation of power point materials to facilitate the presentations. C. PROPOSED PRODUCTS Two full technical reports documenting the analysis, assumptions, sources and findings will be prepared for the two nexus analyses. The nexus analysis reports will also contain findings materials suitable for using in the reports to support impact fees per the requirements of Government Code Sections 66000 et seq. The residential analysis materials produced in Tasks 1 b Current Market Conditions will be summarized in tables with accompanying narratives summarizing the material and findings. These may be appended to the nexus reports. A concise summary report covering all the analyses and recommendations (if any) could be prepared for the adoption process. The summary and recommendations report would be written for the general public and decision makers, laying out the analysis and conclusions and the context of the recommendations. All other materials would be appendix documents for those interested in the detail and for reference in the ordinance language. Following adoption, KMA will prepare a revised draft of the Housing Mitigation Procedures Manual. We will work with staff to arrive at a final version. Page 8 r EXHIBIT A SCOPE OF SERVICES The schedule below commences with the Kick-off work session which can be scheduled as soon as there is clear authorization to proceed. K:MA puts significant effort into preparing for the kick off work session and as a result it is best held roughly two weeks after all contract issues are resolved. Total elapsed time is approximately four months before the public review process. This could be compressed if necessary, but, based on experience, the timeframe below works efficiently without being rushed. Time Required Cumulative Time Authorization to Proceed Kick Off Work Session 2 weeks 2 weeks Market Survey Tasks 3 weeks 5 weeks Conference call on residential prototypes and 0.5 weeks 5.5 weeks non-residential prototypes Completion of Major Analysis Tasks: 4 weeks 9.5 weeks Market Conditions Conclusions Affordable Prices/Rent Levels&Affordabiliaty Gaps Residential Nexus Analysis Non-residential nexus analysis Fees in other jurisdictions Interim Work Session 0.5 weeks 10 weeks Resubmittal of any revisions to the analysis 1 week 11 weeks Draft Reports:Technical Analyses and Summary Report* 2 weeks 13 weeks Staff Review of Reports/Revisions/Final 1-2 weeks 14-15 weeks Adoption Process As scheduled by staff Revised Housing Mitigation Procedural Manual 3 weeks following Council adoption *Draft reports can be transmitted by December 5 th assuming authorization to proceed by September 51n PagE: 9 EXHIBIT B DETAILED/ITEMIZED BUDGET Following is a budget estimate for each of the tasks in the Work Plan Scope of Services, followed by the services related to the process and final products. Analysis Tasks 1. Residential Nexus Analysis a. Project Initiation and Analysis Parameters Incl. below b. Current Market Conditions $6,000 c. Residential Nexus Analysis $12,000 d. Programs in Other Jurisdictions $3,000 $21,000 2. Non-Residential Nexus Analysis a. Project Initiation and Analysis Parameters (incl. in process) Incl. below b. Quantitative Analysis including Supported Fee Levels $7,000 c. Potential Overlap: Residential and Non-Residential Nexus $4,000 d. Total Development Cost Context $7,500 e. Fee Programs in Other Jurisdictions $3,000 $21,500 Process Related Tasks(inclusive of preparation, etc.) 1. Project Initiation/Kick-Off Work Session/Conference Call $3,000 2. Interim Work Session on Analysis Results $3,000 3. Six Community Meetings (including PowerPoint) $12,000 $18,000 Products 1. Technical Reports (2) including appendices $7,000 2. Summary Report and Recommendations $3,000 3. Revised Housing Mitigation Procedural Manual $4,200 $14,200 Contingency Allowance @ 10% $7,500 Reimbursables Allowance for purchase of IMPLAN data sets, market survey materials, travel related and other miscellaneous expenses. $1,000 All Services $83,200 Page 1 EXH1131T B DETAILED/ITE)IlifZED BUDGET Hourly Fee Schedule The KMA hourly fee schedule is provided below. This assignment will entail the following staff members: Kate E. Funk (Senior Principal), David Doezema (Principal), Reed Kawahara (Principal), Harriet Ragozin (Senior Associate), and assistance from the analyst and technical staff level. 2013/2014 A. Jerry Keyser* $280.00 Managing Principals* $280.00 Senior Principals* $270.00 Principals* $250.00 Managers* $225.00 Senior Associates $187.50 Associates $167.50 Senior Analysts $150.00 Analysts $130.00 Technical Staff $95.00 Administrative Staff $80.00 Directly related job expenses not included in the above rates are: auto mileage, parking, air fares, hotels and motels, meals, car rentals, taxies, telephone calls, delivery, electronic data processing, graphics and printing. Directly related job expenses will be billed at 110% of cost. Monthly billings for staff time and expenses incurred during the period will be payable within thirty (30) days of invoice date. * Rates for individuals in these categories will be increased by 50%for time spent in court testimony. Page 2 AC a DATE(MMIDD/YYYY)D � CERTIFICATE ®F LIABILITY INSURANCE 9/4/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER., IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED,the pollcy(les)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in Ileu of such endorsement(s). PRODUCER CONTACT NA E: Halidee Calle as MOC Insurance Services PHONE (415)957-0600 F IC o.(415)957-0577 License No. 0589960 EDDRIES .hcallejas @mocins.com 44 Montgomery St. , 17th Fl. INSURERS AFFORDING COVERAGE NAIC# San Francisco CA 94104 _ INSURERA:Golden Eagle Insurance Cor2 10836 INSURED INSURER B.2e ublic Indemnity Company 2179 Keyser Marston Associates, Inc. INSURER CE vans ton Insurance Co 35378 160 Pacific Avenue, Suite 204 INSURER D: INSURER E: San Francisco CA 94111 —11 NSURERF: COVERAGES CERTIFICATE NUMB ER:bMsTER 2013-2014 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HA'✓_E BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE BR POLICY EFF POLICY EXP LIMITS LTR POLICY NUMBER_ MWDD M/DD/YYY GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 DAMAGE TO ReTrEu- X COMMERCIAL GENERAL LIABILITY PREMISESIEA occurrence $ 500,000 A CLAIMS-MADE 51 OCCUR X Y BP8932329 2/1/2013 2/1/2014 MED EXP(Anyone person) $ 10,000 ItTo Deductible applies PERSONAL BADVINJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 1'_000'000 POLICY X PRO LOC $ AUTOMOBILE LIABILITY Ea accident LE MIT 1,000,000 A X ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED X Y IBA 8932429 2/1/2013 2/1/2014 BODILY INJURY(Par accident) $ AUTOS NON-OWNED PROPERTY DAMAGE X HIRED AUTOS X AUTOS Per accident) $ X Comp$500 X Coll$500 Uninsured motorist combined $ 1,000,000 X UMBRELLALIAB X OCCUR EACH OCCURRENCE $ 4,000,000 A EXCESS LIAB CLAIMS-MADE AGGREGATE $ 4,000,000 DED I X I RETENTIONS 10,00 U 8932629 2/112013 2/1/2014 $ B WORKERS COMPENSATION Y X WC STATU- OTH- AND EMPLOYERS'LIABILITY 2/1/2013 2/1/2014 ANY PROPRIETOR/PARTNER/EXECUTIVE� NIA 3954619 E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? (Mandatory In NH) E.L.DISEASE-EA EMPLOYE $ 1_'000'000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 C Professional Liability E0855446 2/1/2013 2/1/2014 Each Wrongful Act• $1,000,000 Retention: $25,000 Retro Date: 11/11/].:)76 AGGREGATE LIMIT $2,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES (Attach ACORD 101,Additional Remarks Schedule,If more space Is required) City of Cupertino, its City Council, boards and commissions, officers, employees and volunteers are included as Additional Insureds as respects their interest appears per written contract. This insurance is primary and non-contributory. Waiver of Subrogation applies. 30 Day notice of cancellation/10 day for non-payment of premium. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Cupertino ACCORDANCE WITH THE POLICY PROVISIONS. City Hall Community Development Dept AUTHORIZED REPRESENTATIVE 10300 Torre Avenue Cupertino, CA 95014 Halidee Callejas/HCA ACORD 25(2010/05) ©1988-2010 ACORD CORPORATION. All rights reserved. INS025rgmnamni Tho Ar..r1Ril names and Innn arc ramleforarl markc of Ar.npn