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99-088a Keyser Marston - Consulting Services for redevelopment of Vallco Reso 99-210RESOLUTION NO. 99-210 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR REDEVELOPMENT CONSULTING SERVICES BY KEYSER MARSTON ASSOCIATES, INC. WHEREAS, the City Council of the City of Cupertino (the "City"), acting pursuant to the provisions of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.), has activated the Cupertino Redevelopment Agency (the "Agency") and has declared itself to constitute the Agency by Ordinance No. 1421, adopted on June 1, 1987; and WHEREAS, the City Council wishes to utilize the services of Keyser Marston Associates, Inc. to assist the City in the preparation and adoption of a redevelopment project for Vallco Fashion Park; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CUPERTINO AS FOLLOWS: Section 1. The "Agreement for Redevelopment Consulting Services" between the City of the Cupertino Redevelopment Agency and Keyser Marston Associates, Inc., in the form attached to this resolution and incorporated herein by this reference, is hereby approved. Section 2. The City Manager is hereby authorized and directed to execute the Agreement Redevelopment Consulting Services on behalf of the City, and to execute such other documents and take such other actions as necessary to carry out and implement the obligations of the City thereunder. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 19`h day of July, 1999, by the following vote: Vote Members of the Citv Council AYES: Burnett, Chang, James, Statton, Dean NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: C}y�ov)r`(�Cqal-, ity Clerk Mayo—r,City of Cqpertino CUP/CCResoAgmtPymtKeyserMarston 7/20/99 AGREEMENT THIS AGREEMENT, for redevelopment consulting services, made and entered into this 19"' day ot' July, 1999 , by and between the CITY OF CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY", and), Keyser Marston Associates, Inc. a consulting firm with offices at 55 Pacific Avenue Mall, San Francisco, California, 94111 hereinafter referred to as "CONTRACTOR"; WITNESSETH: WHEREAS, CITY desires to retain consulting services to assist CITY in the preparation and adoption of a redevelopment project for Vallco Fashion Park, and WHEREAS, CITY desires.to engage CONTRACTOR to provide these services by reason of its qualifications and experience for performing such services, and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows: 1. DEFINITIONS. (a) The word "City" as used in this agreement shall mean and include all the territory lying within the municipal boundaries of the City of Cupertino, California, as presently existing, plus all territory which may be added thereto during the term of this agreement by annexation or otherwise. (b) The tern "City Manager" shall mean the duly appointed City Manager of the City of Cupertino, California, or his designated representative. (c) The term "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino, California, or his designated representative. (d) The term "City Clerk" shall mean the duly appointed City Clerk of the City of Cupertino, California, or her designated representative. PROJECT COORDINATION. (a) Com. The City Manager shall be representative of CITY for all purposes under this agreement. ROBERT COWAN hereby is designated as the PROJECT MANAGER for the City Manager, and shall supervise the progress and execution of this agreement. (b) Contractor. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this agreement for CONTRACTOR. TIM KELLY hereby is designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this agreement require a substitute PROJECT DIRECTOR for any reason, the PROJECT DIRECTOR designee shall be subject to the prior written acceptance and approval of ROBERT COWAN the PROJECT MANAGER. -I- DUTIES OF CONTRACTOR. (a) Services to be Furnished. CONTRACTOR shall provide all specified services as set forth below: (1) Refer to the Scope of Work attached to City Council Resolution 99-209. (b) Laws to be Observed., CONTRACTOR shall: (1) Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the services to be performed by CONTRACTOR under this agreement; (2) Keep itself fully informed of all existing and future federal, state, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this agreement, any materials used in CONTRACTOR's performance under this agreement, or the conduct of the services under this agreement; (3) At all times observe and comply with, and cause all of its subcontractors and employees, if any, to observe and comply with, all of said laws, ordinances, regulations, orders, and decrees mentioned above; (4) Immediately report to the PROJECT MANAGER in writing any. discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawing, specifications, or provisions of this agreement. (c) Release of Reports and Information. Any reports, information, data, or other material, given to, or prepared or assembled by, CONTRACTOR or its subcontractors, if any, under this agreement shall be the property of CITY and shall not be made available to any individual or organization by CONTRACTOR or its subcontractors, if any, without the prior written approval of the City Manager. (d) Copies of Reports and Information. If CITY requests additional copies of reports, drawings, specifications or any other material which CONTRACTOR is required to furnish in limited quantities as part of the services under this agreement, CONTRACTOR shall provide such additional copies as are requested and CITY shall compensate CONTRACTOR for the costs of duplicating of such copies at CONTRACTOR'S cost. (e) Final Report. CONTRACTOR shall provide CITY with one reproducible original and ten (10) copies of the final report required under this agreement upon completion and acceptance of the report by CITY. (f) Qualifications of Contractor. CONTRACTOR represents that it is qualified to furnish the services described under this agreement. 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR based on fees shown in City Council Resolution 99-209. Consultant shall submit monthly requisitions to City specifying the amount due for services performed by Consultant's staff and a list of incurred expenses for the past calendar month. Upon approval of the services performed and the requisition, City shall pay Consultant in accordance with such requisition up to the agreed-upon maximum. &a Monthly billings will be payable within thirty (30) days of invoice date. A chane of 1% per month will be added to all past due accounts. 5. TERM. The services to be performed hereunder shall commence on July 19. 1999. The completion date is dependent upon the completion date for the public hearin, process for adoption of the redevelopment project plan, which is tentatively scheduled, for completion in March 2000. Therefore, this Agreement will continue until terminated by either party or until completion. 6. TEMPORARY SUSPENSION. The City Manager shall have the authority to suspend this agreement, wholly or in part, for such period as he deems necessary due to unfavorable conditions or to the failure on the part of the CONTRACTOR to perform any provision of this agreement. SUSPENSION; TERMINATION. (a) Right to Suspend or Terminate. Either parry may suspend or terminate this agreement for any reason by giving thirty (30) days' written notice. Upon receipt of such notice, CONTRACTOR shall immediately discontinue his performance under this agreement. (b) Payment. Upon such suspension or termination, CONTRACTOR shall be paid for all services actually rendered to CITY to the date of such suspension or termination; provided, however, if this agreement is suspended or terminated for fault of CONTRACTOR, CITY shall be obligated to compensate CONTRACTOR only for that portion of CONTRACTOR'S services which are of benefit to CITY. (c) Return of Materials. Upon such suspension or termination, CONTRACTOR shall turn over to the City Manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONTRACTOR or its subcontractors, if any, or given to CONTRACTOR or its subcontractors, if any, in connection with this agreement. Such materials shall become the permanent property of CITY. CONTRACTOR, however, shall not be liable for CITY's use of incomplete materials nor for CITY's use of complete documents if used for other than the project contemplated by this agreement. 8. INSPECTION. CONTRACTOR shall furnish CITY with every reasonable opportunity for CITY to ascertain that the services of CONTRACTOR are being performed in accordance with the requirements and intentions of this agreement. All work done and all materials furnished, if any, shall be subject to the PROJECT MANAGER's inspection and approval. The inspection of such work shall not relieve CONTRACTOR of any of its obligations to fulfill its agreement as prescribed. 9. MDEPENDENT JUDGMENT. Failure of CITY to agree with CONTRACTOR's independent findings, conclusions, or recommendations, if the same are called for under this agreement, on the basis of difference in matters of judgment shall not be construed as a failure on the part of CONTRACTOR to meet the requirements of this agreement. 10. ASSIGNMENT; SUBCONTRACTORS; EMPLOYEES. (a) Assignment. Both parties shall give their personal attention to the faithful performance of this agreement and shall not assign, transfer, convey, or otherwise dispose of this agreement or any right, title, or interest in or to the same or any part thereof without the prior written consent of the other party, and then only subject to such terms and conditions as the other party may require. A consent to. one assignment shall not be deemed to be a consent to any subsequent assignment. Any assignment without such approval shall be void and, at the option of the other party, shall terminate - 3 - this agreement and any license or privilege granted herein. This agreement and any interest herein shall not be assignable by operation of law without the prior written consent of the other party. (b) Subcontractors. It is agreed that this agreement is for the personal services of Keyser Marston Associates Inc. and subcontractors referred in Section 3(a) and cannot be performed by any other person or organization. (c) Subcontractors; Employees. CONTRACTOR shall be responsible for emplovin, or engaging all persons necessary to perform the services of CONTRACTOR hereunder. No subcontractor of CONTRACTOR will be recognized by CITY as such; rather, all subcontractors are deemed to be employees of CONTRACTOR, and it agrees to be responsible for their performance. CONTRACTOR shall give its personal attention to the fulfillment of the provisions of this agreement by all of its employees and subcontractors, if any, and shall keep the work under its control. If' any employee or subcontractor of CONTRACTOR fails or refuses to carry out the provisions of this agreement or appears to be incompetent or to act in a disorderly or improper manner, lie shall be discharged immediately from the work under this agreement on demand of the PROJECT MANAGER. 11. NOTICES. All notices hereunder shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: TO CITY: Office of the City Clerk 10300 Torre Avenue Cupertino, CA 95014-0580 TO CONTRACTOR: Attention of the PROJECT DIRECTOR at the address of CONTRACTOR recited above. 12. INTEREST OF CONTRACTOR. CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. CONTRACTOR further covenants that, in the performance of this agreement, no subcontractor or person having Such an interest shall be employed. CONTRACTOR certifies that no one who has or will have any financial interest under this agreement is an officer or employee of CITY. It is expressly agreed that, in the performance of the services hereunder, CONTRACTOR shall at all times be deemed an independent contractor and not an agent or employee of CITY. 13. INDEMNITY. CONTRACTOR hereby agrees to indemnify and hold harmless CITY, its officers, agents, and employees of and from: (a) Any and all damage to or destruction of the property of CITY, its officers, agents, or employees occupied or used by or in the care, custody, or control of CONTRACTOR, caused by any act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this agreement or of CONTRACTOR'S or any subcontractor's employees or. agents. (b) Any all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of or damage suffered or sustained by any employee or agent of CONTRACTOR or any subcontractor under this agreement, however caused, excepting, however, any such claims and demands which are the result of the sole negligence or willful misconduct of city, its officers, agents, or employees; (c) Any and all penalties imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any permit. -4- (d) The CONTRACTOR is not responsible for the accuracy of data from sources other than his/her own or from conclusions reached as a result of utilizing information supplied by third persons. (e) The City agrees to provide legal defense -to challenges to the adequacy and. completeness of the services provided. The CONTRACTOR shall assist the CITY in responding to such challenges. If it is subsequently ruled by a court of jurisdiction that errors of facts, procedures or scope have occurred and that these errors and/or omissions were the result of the CONTRACTOR'S own work, then the CONTRACTOR shall be responsible for providing whatever remedies that may be required to make the analysis adequate and complete. 14. WORKERS' COMPENSATION. CONTRACTOR certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it certifies that it will comply with such provisions before commencing the performance of the work of this agreement. 15. INSURANCE. CONTRACTOR, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire term of this agreement the insurance coverage of at least a "B" rating as determined in accordance with the insurance industry standard, insuring not only CONTRACTOR, but also (with the exception of workers' compensation and employer's liability insurance), CITY, its officers, agents, and employees, and each of them with respect to activities and services performed by CONTRACTOR for or on behalf of CITY under the provisions of this agreement. Certificates of such insurance, preferably on the forms provided by CITY, shall be tiled with CITY concurrently with the execution of this agreement or, with CITY's approval, within ten (10) days .thereafter. Said certificates shall be subject to the approval of the City Attorney. and shall contain an endorsement stating that said insurance is primary coverage and will not be canceled or altered by the insurer except after filing with the City Clerk thirty (30) days' written notice or such cancellation or alteration, and that the City of Cupertino is named as an additional insured. Current certificates of such insurance shall be kept on file at all times during the term of this agreement with the City Clerk. 16. AGREEMENT BINDING. The terms, covenants, and conditions of this agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and subcontractors of both parties. 17. WAIVERS. The waiver by either party of any breach or violation or any term, covenant, or condition of this agreement or any provision, ordinance, or law shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, or law or of any subsequent breach or violation of the same or of any other term, covenant; condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement or of any applicable law or ordinance. 18. COSTS AND ATTORNEYS FEES. The prevailing party in any action brought to enforce the terms of this agreement or arising out of this agreement may recover its reasonable costs and attorneys' fees expended in connection with such an action from the other party. 19. EQUAL OPPORTUNITY EMPLOYMENT. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color natural origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial -5- employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effort or hereinafter enacted. 20. AGREEMENT CONTAINS ALL UNDERSTANDINGS. This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, or agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and CONTRACTOR. All provisions of this agreement are expressly made conditions. This agreement shall be governed by the laws of the State of California. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this agreement the day and year first above written. CI F1JCPERT-1, O Mano mer ATTEST: g/planning/res/ccval Icoredev CONTRACTOR Ams iox-) Aiso o.111C. JA4 A:1_6,44 (P '0 Address /.i :3y�-3as0 Telephone Social Security number br Tax I.D. number �?zl-2363751