16-061 M-Group for General Planning Assistance for the Vallco 9212 ReportAGREEMENT BETWEEN THE CITY OF CUPERTINO AND M-GROUP FOR
GENERAL PLANNING ASSISTANCE FOR THE VALLCO 9212 REPORT
THIS AGREEMENT, is entered into this 1st day of April, 2016, by and between
the CITY OF CUPERTINO, a California municipal corporation ("City"), and M-Group, a
California Corporation whose address is 579 Clyde Street, Suite 340, Mountain View ,
California 94043 (hereinafter refeITed to as "Consultant") (collectively refeITed to as the
"Parties ").
RECITALS:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to caITy on its business as it is now
being conducted under the Constitution and the statutes of the State of California and the
Cupe1tino Municipal Code.
B. Consultant is specially trained, experienced and competent to perfonn the
special services which will be required by this Agreement.
C. Consultant possesses the skill, experience, ability, background,
ce1tification and knowledge to provide the services described in this Agreement on the
te1ms and conditions described herein.
D . City and Consultant desire to enter into an agreement for general planning
services for the Vallco 9212 Report upon the terms and conditions herein .
NOW, THEREFORE, the Parties mutually agree as follows:
1. TERM
The te1m of this Agreement shall commence on April 1, 2016, and shall te1minate
on December 30, 2016, unless te1minated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall perfo1m each and every service set f011h in Exhibit "A", attached
hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT
Consultant shall be compensated for services perf01med pursuant to this
Agreement in a total amount not to exceed FIFTEEN THOUSAND dollars ($15 ,000 .00).
4. TIME IS OF THE ESSENCE
Consultant and City agree that time is of the essence regarding the perfo1mance of
this Agreement.
5. STANDARD OF CARE
Consultant agrees to perfo1m all services required by this Agreement in a manner
commensurate with the prevailing $tandards of like professionals in the San Francisco
Bay Area and agrees that all services shall be perf01med by qualified and experienced
personnel who are not employed by the City nor have any contractual relationship with
City.
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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, rnle 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 nornrnlly 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 CIRCA)
Consultant assumes any and all responsibility for verifying the identity and
employment authorization of all of his/her employees perf01ming work hereunder,
pursuant to all applicable IRCA or other federal, or state rnles and regulations. Consultant
shall indemnify and hold City hannless from and 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 prohibiting harassment and discrimination,
Consultant agrees that it shall not harass or discriminate against 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, sexual orientation, or any other protected class . Consultant
agrees that any and all violations of this provision shall constitute a material breach of
this Agreement.
9. HOLD HARMLESS
~ Standard Indemnification:
Consultant shall, to the fullest extent allowed by law and without limitation of the
provisions of this Agreement related to insurance, with respect to all services perfo1med
in connection with the Agreement, indemnify, defend, and hold ha11111ess 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,
whether physical, emotional, consequential or otherwise, arising out, pe1iaining to, or
related to the negligent performance of this Agreement by 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, expe1i fees and all
other costs and fees of litigation. The acceptance of the Services by City shall not operate
as a waiver of the right of indemnification. The provisions of this Section survive the
completion of the Services or tennination of this Contract.
10. INSURANCE:
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M-Group for Vallco 9212 Report , 4-1-16
A. General Requirements. On or before the commencement of the te1m of this
Agreement, Consultant shall furnish City with ce11ificates showing the type, amount,
class of operations covered, effective dates and dates of expiration of insmance coverage
in compliance with the requirements listed in Exhibit "D ". Such ce11ificates, which do not
limit Consultant's indemnification, shall also contain substantially the following
statement: "Should any of the above insurance covered by this ce11ificate be canceled or
coverage reduced before the expiration date thereof, the insurer affording coverage shall
provide thi11y (30) days' advance wiitten notice to the City of Cupe11ino by certified mail ,
Attention: City Manager." Consultant shall maintain in force at all times during the
perf01mance 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 ce11ificates.
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 vi11ue of the
payment of any loss under such insurance .
C . Failure to secure or maintain insurance. If Consultant at any time during
the term hereof should fail to secure or maintain the foregoing insurance, City shall be
pe1mitted 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 pe1mitted by law and computed from the date w1itten
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 p011ion 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 detennine adequate coverage for Consultant.
F. Maximum Coverage and Limits . It shall be a requirement under this
Agreement that any available insurance proceeds broader than or in excess of the
specified minimum Insurance coverage requirements and/or limits shall be available to
the additional insured City. Fw1he1more, the r equirements for coverage and limits shall
be the minimum coverage and limits specified in this Agreement, or the broader coverage
and maximum limits of coverage of any insurance policy or proceeds available to the
named insured , whichever is greater.
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M-Group for Vallco 9212 Report , 4 -1-16
11 . CONFLICT OF INTEREST
Consultant waiTants that it presently has no interest, and will not acquire any
interest, direct or indirect, financial or otherwise, that would conflict in any way with the
perfo1mance of this Agreement, and that it will not employ any person having such an
interest. Consultant agrees to advise City immediately if any conflict arises and
understands that it may be required to fill out a conflict of interest fo1m 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, tiust
company or other financial institution without prior w1itten 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 paiiner 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 constrned 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 perfo1mance 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
caITy general, automobile and professional liability insurance in reasonable confonnity to
the insurance canied by Consultant. In addition, any work or s ervices subcontracted
hereunder shall be subject to each provision ofthis Agreement.
Consultant agrees to include with all subcontractors in their subcontract the same
requirements and provisions of this Agreement including the indemnity and insurance
requirements to the extent they apply to the scope of the subcontractor 's work.
Subcontractors hired by Consultant agree to be bound to Consultant and City in the same
manner and to the same extent as Consultant is bound to City under this Agreement.
Subcontractor further agrees to include these same provisions with any sub-
subcontractor. A copy of the Owner Contract Document Indemnity and Insurance
provisions will be furnished to the subconn·actor upon request. Consultant shall require
all subcontractors to provide a valid certificate of insurance and the required
endorsements included in the agreement prior to commencement of any work and will
provide proof of compli ance to City.
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14. PERMITS AND LICENSES
Consultant, at his /her sole expense, shall obtain and maintain during the te1m of
this Agreement, all appropriate pennits, ce11ificates 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 rep011 , draft , work product, map, record and other
document, hereinafter collectively referred to as "Rep011", 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 Rep011
required by this Agreement and shall execute appropriate documents to assign to City the
copyright to Repo11s created pursuant to this Agreement. Any Repo11, information and
data acquired or required by this Agreement shall become the property of C ity, 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 Repo11s 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 01iginal
project; and/or (4) Other City projects as City deems approp1iate.
C. Consultant shall, at such time and in such fo1m 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 Repo11s shall be copied on both sides of the paper except for one
original , which shall be single sided .
E. No Repo11 , info1mation 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 info1mation required by City that relate to the
perfo1111ance of services under this Agreement, 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 supp011ing documents, shall be kept separate from other documents and records and
shall be maintained for a period of three (3) years after Consultant receives final payment
from City for all s ervices required under this agreement.
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
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M-Group for Vallee 9212 Report , 4-1 -16
Consultant shall reimburse City for all reasonable costs and expenses associated with the
supplemental examination or audit.
17. NONAPPROPRIATION
This Agreement is subject to the fiscal provisions of the Cupe11ino Municipal
Code and Agreement will terminate without any penalty (a) at the end of any fiscal year
in the event that funds are not appropriated for the following fiscal year, or (b) at any
time within a fiscal year in the event that funds are only appropriated for a po11ion of the
fiscal year and funds for this Agreement are no longer available . This Section shall take
precedence in the event of a conflict with any other covenant, te1m, condition, or
provision of this Agreement.
18. ENVIRONMENTALLY PREFERABLE PURCHASING
Consultant shall comply with the City 's Environmentally Preferable Procurement
Policy whenever practicable in completing any work under this agreement, including but
not limited to:
• Using paper products made with recycled content and
recycled/remanufactured toner and ink jet cai1ridges;
• Printing with soy or low volatile organic compounds (VOC) inks ;
• Using energy-star compliant equipment;
• Using cleansers and working with janitorial contractors to meet Green Seal 's
Industrial and Institutional Cleaners Standard; and
• Ordering supplies electronically and practicing other internal waste reduction
and reuse protocols.
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 ce11ified, addressed as hereinafter provided .
All notices, demands, requests, or approvals shall be addressed as follows :
TO CITY:
City of Cupe11ino
10300 ToITe Ave.
Cupe11ino CA 95014
Attention: Aarti Shrivastava, Assistant City Manager
TO CONSULT ANT:
M-Group
579 Clyde Street, Suite 340
Mountain View, CA 94043
Attention: Geoff Bradley, Principal
20 . TERMINATION
In the event Consultant fails or refuses to perfonn any of the provisions hereof at
the time and in the manner required hereunder, Consultant shall be deemed in default in
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the perfo1mance of this Agreement. If Consultant fails to cure the default within the time
specified and according to the requirements set fo1th in City's written notice of default,
and in addition to any other remedy available to the City by law, the City Manager may
te1minate the Agreement by giving Consultant written notice thereof, which shall be
effective immediately. The City Manager shall also have the option, at its sole discretion
and without cause, of te1minating this Agreement by giving seven (7) calendar days' prior
written notice to Consultant as provided herein. Upon receipt of any notice of
termination, Consultant shall immediately discontinue perfo1mance .
City shall pay Consultant for services satisfactorily perfo1med up to the effective
date of termination. If the te1mination if for cause, City may deduct from such payment
the amount of actual damage, if any, sustained by City due to Consultant's failure to
perfo1m its material obligations under this Agreement. Upon te1mination, Consultant
shall immediately deliver to the City any and all copies of studies, sketches, drawings,
computations, and other material or products, whether or not completed, prepared by
Consultant or given to Consultant, in connection with this Agreement. Such materials
shall become the prope1ty of City.
21. COMPLIANCE
Consultant shall comply with all state or federal laws and all ordinances, rnles,
policies 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 rnles which may direct the application of laws
of another jurisdiction. The Agreement and obligations of the paities are subject to all
valid laws, orders , rnles, and regulations of the authmities having jurisdiction over this
Agreement (or the successors of those authorities). Any suits brought pursuant to this
Agreement shall be filed with the Superior Couti 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, adve1tising , show bills, lithographs, posters or cards of any kind
pe1taining to the services perfo1med under this Agreement unless prior w1itten approval
has been secured from City to do otherwise.
24. WAIVER
A waiver by City of any breach of any tenn, covenant, or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other te1m, covenant, or condition contained herein, whether of the same or a different
character.
25. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Patties, and all preliminary negotiations and agreements
of whatsoever kind or nature are merged herein . No verbal agreement or implied
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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.
26 . AUTHORITY
The individual(s) executing this Agreement represent and warrant that they have
the legal capacity and authority to do so on behalf of their respective legal entities .
27. INSERTED PROVISIONS
Each provision and clause required by law to be inse1ted 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 othe1wise, any such provision is not
inserted or is not coITectly inse1ied, the Agreement shall be amended to make such
inse1iion on application by either patty .
28. CAPTIONS AND TERMS
The captions in this Agreement are for convenience only, are not a patt of the
Agreement and in no way affect , limit or amplify the te1ms or provisions of this
Agreement. All unchecked boxes do not apply to this Agreement.
IN WITNESS WHEREOF , the patties have caused the Agreement to be executed .
CONSULTANT
M-Group
By etb~
Title f fl ff ·
Date 1-/ I J I k,
' I
CITY OF CUPERTINO
M-Group for Vallco 9212 Report , 4-1 -16
Page 8 o f10
A Municipal Corporation
B ~~J;_
Title ~~ 1/47/J!h'&eP
Date ~-
o O ve r $17 5,000-Council A ppro va l Required
D O ve r $45 ,000-Depa1tm ent Head Appro val Required
l2l Up to $45 ,000-Designated Superv isor Approval Required
RE~D FOR APPROVAL
Catarina Kidd, Senior Planner
Exhibits: (Chec k box for exh ib its that apply to thi s contract and attach)
IZI Exhibit "A " -Scope of Services
D Exhibit "B"-Schedule of Perfo1mance
D Exhibit "C" -Compensation
IZI Exhibit "D " -Insurance Requirements and Proof of Insurance
D Exhibit "E " -Mandated Reporting Acknowledgement
D Exhibit "F" -Background/Fingerprint/TB Declaration
D Exhibit "G "-Nondiscrimination-State/Federal/HUD funded project
D Exhibit "H " -Request for City Manager to Waive Info1mal Bidding Requirements
EXPENDITURE DISTRIBUTION
ACCO UNT NUMBER AMOUNT
PO #2016-539
110-71-702 700-702 $15,000 .00
Total: $15,000.00
9
m -g r 0 u p a new design on urban planning Exhibit A
policy planning • urban design • environmental review • historic preservation • community engagement • staffing solutions
April 1, 2016
Aarti Shrivastava, ACM/CDD
Community Development Department
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
RE: General Planning Assistance -Vallco Town Center Specific Plan 9212 Report
Dear Ms . Shrivastava:
Thank you for the opportunity to present this proposal for general planning assistance . I understand
the City of Cupertino seeks support with a variety of planning matters, including analysis and
coordination of the ballot initiative presented to the City in regards to The Hills at Vallco project.
I am available to aid the City throughout the 9212 report process, ensure the planning division has
adequate staffing to respond to information needs, and provide internal coordination as needed.
The total budget for this project would not exceed $15,000. At a rate of $225 per hour, this
represents approximately 66 total hours of planning assistance . For efficiency's sake, I may ask other
M-Group planners to assist me from time to time. However, the budget would remain the same.
If you have any questions or need additional in formation, please do not hesitate to contact me.
Sincerely,
1t;;~~
President+ Principal
gbradley@m-group.us
650 . 938.1111
m -g roup .u s 579 Clyde Avenue, Suite 340, Mountain View, CA 94043 650.938.1111
Exhibit D
Insurance Requirements and Proof of Insurance
Proof of insurance coverage described below is attached to this Exhibit, with City named as
additional insured.
Consultant shall maintain the following minimum insurance coverage:
A. 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:
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 .
10