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HomeMy WebLinkAbout92-027 Keyser Marston Associates, Inc. 92-027 KEYSER MARSTON ASSOCIATES ,INC . A , ACCOUNT NO. CONTRACT AMOUNT S PURCHASE ORDER NO. AGREEMENT THIS AGREEMENT, made and entered into this 23rd day of December, 1992, by and be!ween the CITY OF CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY", and Keyser Marston Associates, Inc., a corporation with offices at 55 Pacific Mall Avenue, San Francisco, California, hereinafter referred to as"CONTRACTOR"; W ITNESSETH: WHEREAS, CITY desires to retain services in conjunction with a study analyzing retailing options for Vallco Fashion Dark;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 term "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. 2. PROJECT COORDINATION. (a) City. The City Manager shall be representative of CITY for all purposes under ;his agreement. Robert Cowan is hereby 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 the PROJECT MANAGER 3. DUTIES OF CONTRACTOR. (a) Services to be Furnished. CONTRACTOR shall provide all specified services as set forth below: (1) Services specified by Exhibit A titled"Scope of Services". (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 empioyees, 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 arc requested and CITY shall compensate CONTRACTOR for the costs of duplicating of such copies at CONTRACTOR'S cost. (c) Qualifications of Contractor. CONTRACTOR represents that it is qualified to furnish the services described under this agreement. 4. COMPENSATION. For the performance of the services described herein by CONTRACTOR. CITY shall pay CONTRACTOR a total sum of not to exceed $20,000 Dollars, payable monthly upon submission by CONTRACTOR of itemized billings in accordance with the attached fee schedule labeled Exhibit B. 5. DUTIES OF CITY. City shall provide readily available retail sales information that is published from government sources and plans of retail building,if available. 5. TERM. This agreement shall commence on December 23rd, 1992. and shall continue in full force and effect until terminated as provided herein. 7. 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. 8. EXTENSION CIF TERM. In the event that the senices called for under this agreement are not completed within the time specified above, the City Manager shall have the option to extend the time for completion. This paragraph does not preclude the recovery of damages for delay by either party. 9. SUSPENSION;TERMINATION. (a) Right to Suspend or Terminate. Either party 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) Payjrnept. 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 shalt turn over to the City Manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, preparp-A 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 properh of CITY. CONTRACTOR however, shall not be liable for CITY's use of incomplete materials or for CITY's use of complete documents if used for other than the project contemplated by this agreement. 10. 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 PROTECT 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. Il. INDEPENDENT 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. 12. 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 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) ,,ukc mractors. It is agreed that this agreement is for the personal services of Keyser Marston Associates, Inc.,and cannot be performed by any other person or organization. (b) Subcontractors;Empincy . CONTRACTOR shall be responsible for employing 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 cant'out the provisions of this agreement or appears to be incompetent or to act in a disorderly or improper manner, he shall be discharged immediately from the work under this agreement on demand of the PROJECT MANAGER. 13. 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. 14. 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. 15. INDEMNITY. CONTRACTOR hereby agrees to indemnify and save harmless CWY, its ofTiicers,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 CONIRAC7'OR,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 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 employce 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 penalities imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any perrait. (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. 16. WORKERS' COMPENSATION. CONTRACTOR certifies that it is aware of the provisions of the Labor Code of the State of California which require every =pioyer 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. 17. 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 le.,st a "B" rating as determined in accordance with the insurance industry standard, inswing 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 activates and se. ;ces performed by CONTRACTOR for or on behalf of CITY under the provisions of this agreem mt. Certificates of such insurance, preferably on the forms provided by CITY, shall be filed with CITY concurrently with the execution of this agreement or, with CITY's approval, within ten (10) days thereafter. Said certificates shall be subjwt to the approval of the City Attorney and shall contain an endorsement stating that said insurance is primary coverage and will not be cancelled or altered by the insurer except after filing with the City Clerk thirty (30) days' written notice of 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. 18. AGREEMENT BINDING. Thi, terms, covenants, and conditions of this agreement shall apply to,and shall bind,the heirs, successors.,executors, administrators, assigns, and subcontractors of both parties. 19. WAIVERS. The waiver by either party of any breach or violation of 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,erm, covenant,or condition of this agreement or of any applicable law or ordinance. 20. 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. 21. NONDISCRIMINATION. No discrimination shall be made in the employment of persons under this agreement because of the race, color, national origin, ancestry, religion or sex of such person. If the value of this agreement is, or may be, Five Thousand Dollars ($5,000) or more, CONTRACTOR agrees to meet all requirements of the Cupertino Municipal Code pertaining to nondiscrimination in employment and to complete and submit the "Compliance Report—Nondiscrimination Provisions of City of Cupertino Contracts"on the form furnished by CITY. If CONTRACTOR is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of federal law or executive order in the performance of this agreement,it shall thereby be found in material breach of this agreement.Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in part,or to deduct from the amount payable to CONTRACTOR the sum of Twenty-five Dollars ($25) for each person for each calendar day during which said person was discriminated against,as damages for said breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer shall constitute evidence of a violation of contract under this paragraph. If CONTRACTOR is found in violation of the nondiscrimination provisions of this agreement or the applicable affirmative action guidelines pertaining to this agreement. CONTRACTOR shall be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or Suspend this agreement,in whole or in part,or to deduct from the amount payable to CONTRACTOR the sum of Two Hundred Fifty Dollars($250)for each calendar day during which CONTRACTOR is found to have been in such noncompliance as damages for said breach of contract,or both. 22. AGREENIENT CONTAINS ALL UNDERSTANDINGS. This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes ail prior negotiations,representations,or agreements,either written or oral. This document may be amended only by written instrument, signed by both CITY and CONTRA4,TOR All provisions of this agreement are expressly made conditions. This agreement shall be governed by the laws of the State of California. IN WITNESS WIi REOF, CITY and CONTRACTOR have executed U'us agreement the day and year first above written. ATTEST: CITY OF CUPERTINO City C lerk APPROVED AS TO FORM: i G`41.-sue City Attorney 4 CO R- N e v4 C'/.IC 0 Address `//S 3e ! , EXHIBIT A SCOPE OF SERVICES When and as directed by City, Consultant shall perform disposition consulting services for the project area to include, but not be limited to the following: 1. Consult, assist and advise the City with respect to marketing; financial and disposition issues, including the financial testing of land use and development concepts proposed by potential developers. 2. Participate in formal and informal discussions and presentations with potential developers and community officials. 3. Undertake evaluation of existing economic feasibility studies and appraisals. 4. Undertake the refinement and expansion of marketing strategy and tactics to meet new conditions as they develop. S. Advise City when necessary in the preparation of background information for presentation to developers and key tenants of City developers. 6. Preparation of reports as required by State law. METHOD AND TIME OF PERFORMANCE Consultant shall perform the various services described herein only as and when requested by the City and within a time schedule as mutually agreed upon by the parties to this Agreement. 2 EXHIBIT B COMPENSATION City agrees to pay and Consultant agrees to accept compensation on an hourly basis according to the following fee schedule which will remain in effect through December 31, 1992, at which point new rates may be negotiated: A. Jerry Keyser* $150.00 Senior Principal* $145.00 Principal* $140,00 Senior. Associate* $120.00 Associate $105.00 Senior Analyst $ 90.00 Analyst $ 80.00 Technical Staff $ 50•00 Administrative Staff $ 45.00 Directly related job expenses not included in the above rates are: Auto mileage, air fares, hotels and motels, meals, car rentals, taxies, telephone calls, delivery, electronic data pro- cessing, graphics and printing. Directly related job expenses will be billed at 110% of cost. MAXIMUM COMPENSATION The total compensation for all services performed pursuant to this Agreement shall not exceed the sum of ( ) THOUSAND DOLLARS ($ ), without prior approval of the City. METHOD OF PAYMENT 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. Monthly billings will be payable within thirty (30) days of invoice date. A charge of 1% per month will be added to all past due accounts. * Rates for individuals in these categories will be increased by 50% for time spent in court testimony. 3 EXHIBIT C GENERAL PROVISIONS 1. Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Consultznt accomplishes services rendered pursuant to this Agreement. 1. Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Consultant's obli- gations pursuant to this Agreement. 3. Consultant's Liability. The Consultant shall be responsible for all injuries to persons and for all darrage to real or personal property of the City or others, caused by or resulting from the negligence of itself, its employees, or its agents during the progress of or connected with the rendition of services hereunder. Consultant shall defend and hold harmless and indemnify the City, the Agency, and all officers and employees of both public agencies from all costs and claims for damages to real or personal property, or personal injury to any third party, resulting from the negligence of itself, its employees, or its agents, arising out of the Consultant's performance of work under this Agreement. 4. EQual Employment Opportunity. During the performance of this Agreement, the Consultant agrees as follows: a. The Consultant will not discriminate against any employee or applicant for employment because of race, color, age, religion, sex, national origin, or physical handicap. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, age, religion, sex, national origin, or physical handicap. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer, recruitment or recnritment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notice setting forth the provisions of this non-discrimination clause. b. The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, age, national origin, or physical handicap. C. The Consultant will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement, provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 4 5. Consultant Not Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. E. Products of Consulting. All products of consulting, with the exception of computer software developed by Consultant, shall become the property of the City and shall be delivered to the City before the end of performance under this Agreement. Computer software remains the property of Consultant. 7. Assignment Prohibited. No party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. 8. Chance. The City may, from time to time, reqv t changes in the Scope of Services of the Agreement to be performed hereunder. Such changes, including any increase or decrease in the amount of Consultant's compensation, which are mutually agreed upon by and between the City and the Consultant, shall be incorporated in written amendments to this Agreement. 9. Termination. This Agreement :nay be terminated by either party on thirty 130) days written notice to the other. The effective date of cancellation being the 30th day of said written notice. Consultant shall be entitled to the compensation earned by it prior to the date of termination, computed pro rata up to and including the date of termination. 10. Attorney's Fees. In the event that it becomes necessary for either party to this Agreement to bring a legal suit to enforce any of the provisions of this Agreement, the parties agree that a court of competent jurisdiction may determine and fix reajonable attorney fees to be paid the successful litigant. 5