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HomeMy WebLinkAbout93-034 Freedman, Tung & Bottomley 93-034 FREEDMAN, TUNG & BOTTOMLEY City Hall 10300 Torre Avenue Cupertino,CA 95014-3202 C i tv 4 r1' Telephone: (408)777-3223 Cll crt 1<1i() _ FAX: (408)777-3366 OFFICE OF TI I@ CITY CLERK t October 28, 1994 Free%.aan Tung & Bottomley 47 Kearney Street San Francisco, California 94108 We are enclosing to you for your files and information one (1) copy of the agreement by and between the City of Cupertino and Freedman Tung & Bottomley, which has been fully executed by city officials. Your agreement shall begin on 07/01/94 and shall be completed by 11/30/94. Thank you for your services. Sincerely, 7Y, �s KIM MARIE SMITH CITY CLERK KS/cs Encl. cc: Department of Community Development IItInted i'n RccVCJed Pape/ ACCJUNT NO. CON T RACT AMOUNT S20,531 PURCHASE ORDER NO. 027336 AGREEMENT THIS AGREEMENT, made and entered into this day of 1994, by and between the CITY OF CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY", and Freedman Tung and Bottomley, with offices at 4? Kearney Street, San Francisco, CaLl`ornia, 94108 hereinafter referred to as "CONTRACTOR"; WITNESSETH: WHEREAS, CITY desires to retain services in conjunction with the Heart of the City Specific Plan: Design Task 1I1;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) jly. The City Manager shall be representative of CITY for all purposes under this agreement. Colin Jung 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. Michael Freedman 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: Agreement for Heart of the City Specific Plan: Design Task III Freedman Tung and Bottomley Page 2 Qevelopment Standards an Design Guidelines Standards and guidelines would impl-ment the Land Use and Development Character Policies developed by City staff. They would refine and/or replace existing City zoning regulations for the corridor,providing all necessary physical parameters for boulevard-scale development in the Plan area. Standards and guidelines would address the following aspects of development as appropriate for up to four(4)discrete land use areas: - Permitted and Conditional Uses - Development Intensity and Parcelization - Open Space - Height - Bulk and Massing - Build-to-Lines and Setbacks - Parking Requirements - Architectural Form& Detailing - Landscaping - Signage Up to four(4)prototype illustrations depicting desirable forms of development and selected standards and guidelines for the land use areas (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. (5) Michael Freedman shall represent CONTRACTOR at all City public hearings and meetings. The dates and times of such hearings and meetings shall be mutuaily agreed upon by the CONTRACTOR and PROJECT MANAGER. (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&:costs of duplicating of such copies at CONTRACTOR'S cost. (e) OtMlifrcatkm of Contractor. CONTRACTOR represents that it is qualified to furnish the services described under this agreement. Agreement for Heart of the City Specific Plan: Design Task HI Freedman Tung and Bottomley Page 3 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR the total sum of Twenty Thousand,five hundred thirty-one (520,531). 5. DAMES OF(JU. City shall provide staff time, background r;werials and other available information. 6. Tom. The services to be performed hereunder shall commence on July 1, 1994, and shall be completed by November 30, 1994. 7. TEMPORARY SUPENSION. The City Manger 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 OF TERM. In the event that the services 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 p.Lrty. 9. SUSPENSION:TERMINATION. (a) Right to Suspend or Terminate. Either party may suspend or terminate thi: 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) moment. 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 Mate. 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 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 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. II. 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* SUPS ONTRACCORS•EMPLOYEES. (a) Ass; ng_ment. 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 for Heart of the City Specific Plan: Design Task III Freedman Tung and Bottomley Page 4 agreement and any interest herein shall not be assignable by operation of law without the prior written consent of the other party. (b) Subcontractors4 Emptoym. 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 carry 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 Tore 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 ae 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 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 and 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. (d) The CONTRACTOR is not responsible for the accuracy of date from sources other than hisrher own or from conclusions reached as a result of utilizing information supplied by third person 16. WnRKFRS'COMPENSATION. CONTRACTOR certifies that it is aware of the provisions of the Labor Cods 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. Agreement for Heart of the City Specific Plan: Design Task III Freedman Tung and Bottomley Page 5 17. INSURANCE_ CONTRACTOR, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire (erry► of this agreement the insurance coverage of at least a "B" rating as determined in accordance with the insurance :ndustrv, standard, insuring not only CONTRACTOR, but also(with the exception of workers' compensation :end 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 :,f CITY under the provisions of this agreement. 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 shaii 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 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 titres during the term of this agreement with the City Clerk. 18. 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. 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 terns, 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. 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 .:osts 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) oi- 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 CONTRA.CIOR 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 shah 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 agreeme.ii, 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 (S250) for each calendar day during which CONTRACTOR is found to have been in such noncompliance as damages for said breach of contract,or both. Agreement for Heart of the City Specific Plan: Design Task III Freeman Tung and Bottomley Page G 22. ® RED EMENT CONTAINS ALL UNDERSTANDING . 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. ATTEST: CITY OF CUPERTINO ' z� City Clerk Mayor APPROVED AS TO FORM: {....i-4- City Attorney Project ager Cantractor Name, Fr edinan Tun 11 Bottomley 47 Kearny St..Suite a .00,San Francisco,CA Address 141 291-9455 Telephone k/mm/legal/tung ACCOUNT NO_ CONTRACT AMOUNT PURCHASE ORDER NO. AGRE1-.'MEN1' THIS AGREEMENT, made and entered into this day of 1993,by and between the CITY OF CUPERTINO,a municipal corporation of California, hereinafter referred to as "CITY", and Freedman Tung and 13ottom!ey. with offices at 37 Kearney Street, San Francisco, California, 9.3108 Hereinafter referred to as "CONTRACTOR"; WITNESSETH: WHEREAS, CITY desires to retain services in conjunction with a design charetle; and WHEREAS, CITY desires to engage CONTRACTOR to provide these services by reason of its qualifications and ;.....e:. , for,:c:£ r:::it:d sucl::;---vices, and CON'�'RAC''.'OR!::ts ofG-:•ed 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 e,:isling, plus ail 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 tern "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino, California, or his designated representative. (d) The tern "City Clerk" shall mean the dul) appointed City Clerk of the City of Cupertino, California, or her Usignated representative. 2. PROJECT COORDINATION. (a) City. The Ci'y Manager shall be representative of CITY for all purposes under this agreement. Ciddy Wordell is hereby designated ;is 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 respwi ►bilily for the progress and cxecutioa of this agreement for CONTRACTOR, Michael Freedman 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 acceplance and approval of the PROJECT MANAGER. Agreement for Design Charette I r,.kdhuari I tenet and Itottomil Page-3 5 DUTIES OF CiTY. City shall provide statTtinic, bacl,,'rcunid icc,ltkn dN.1+11-1 001,t -I,A II iblC 11dowilm+n Cc TERM. The services to be performed hereunder sleall k.km!rne4n.. 011 5,1?t.i,itn.i 1 t'P)I and ,hall br'ximpict.d by Novenitxr 30, 1993. 7 TEMPORARY SUSPENSION. The City Mangcr shall l:,i\c iiic autteowr lu ,u,l><nd dtlN .il-,rccmcrit. %%holk oc in part, for such period as he deems necessary due to unfa%or.ible or to !lee t.ulufc au dic part of the CONTRACTOR to perform any provision of this agreement S. EXTENSION OF TERM. In tite event that the services ::illcil for undci this agiccitncm arc not .:ompletcd wrthnn the time specifiell above, the City Manager shall have the option to c,\tcnd the time for completion Plus paral;riph does not preclude the recovery of damages for delay by either part} 5. SUSPENSION;TERMINATION. (a) Right to Suspend or Terminate. I:itiier par,,y way sies; nd or tu•ue+aaw ihv- ; t;:cnecnt for any reason by giving Ihirty (30) days' written notice. Upon reccint of such notice, CONTRAC i'OR shall immedimcl} discomimre lus performance under this agreement. (b) Payment. Upon such suspension or termination, CONTRACTOR shall be paid foc all service"; actually rendered to CITY to the date of such suspension or termination, provided, lume%cr, if this agreement is suspended or terminated for fault of CONTRACTOR, CITY shall be obligated to compensate CONTRACTOR only for that portion of CO*"-TRACTOR'S service:.which are of benefit to CiTY. (c) Return of Materials. Upon such suspension or termination, CONTRACTOR shall turn over to the City Manager mimcdiately any and all copies of studies, sketches, dr;mi,:gs, 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, ill connection with this ag-ectnent. Such materials shalt become the permanent property of CiTN'. CONTRACTOR, howevcr, shall not be liable for CITY's use of incomplete materials or for CI TY's use of complete documents if used for otlicr than the project contemplated by this agreement. 10 INSPECTION. CONTRACTOR shall furnish CIT'1 with cNery reasonabic opportunity 6or CITY to ascertain that the services of CONTRACTOR are being performcd 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. 11, INDEPENDENT JUDGMENT. Failure of CITY to agree with CONTRAC'TOR's independent findings, conclusions, or rcconurtcridations. if the same are called for n idcr this agrecmcnl, on the basis of difference in platters of' judgment shall not be construed as a failure on the part of-CONTRACTOR to meet tile.requirenicnts of this agreement. 12. ASSI-GNMENT; SUBCONTRACTORS; EMPLOYERS. (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 s.line or any part thereof without the prior written consent of the other party, and then only subject to such term and conditions as the other party may require. A consent to one assignment shall not be deeined to be a consent io 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) Subcontractors. it is agreed that this agreement is for the personal services of Kcyscr Marston Asso:;Iatcs, Inc., and cannot be performed by any oilier person or organization. Agreement for Design Charctle Frcc-f uan Tung and Bollonicy Page 4- (b) Subcontractors, Ern Ip o3ci:s C.'ONTRAC TOF( shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR hereunder. No subcontractor of CONTRACTOR will be rccognu.cd by CITY as such; rather, all subcontractors are deemed to be cny►loyces of CONTRACTOR, and it agrees to be responsible for their performance. CON"I'RACTOR 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 i►aiproper 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 ill 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. Id. 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 agrec.nent, no subcontractor or person having such a❑ 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 aot an agent or employee of CITY. 1`. INDEN"'NLAITY. CONTRACTOR hereby agrees to indcronify and save harniless CITY, its officers, agents, and employees of and from: (a) Any and all damage to or destruction of the properly 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 any all claims and demands which may be ivadc 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 !his agreement, however caused, excepting, however, any sach claims and den►ands which are the result of the sole negligence or willful misconduct of city, its officers, agents, or employees; (c) Any and all penalitics imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any permit. (d) The CONTRACTOR is not responsible for the accuracy of date front 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 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. Agreement 1+ur Design C'harelle Frcccln!all Tung and liuttomlc) Page -i- 17 INSURANCE CON'rRAc IOR, at its sole cost ;urd c�pcnse, shall obtain and nlainmul In fill! force and cticct lhroughuut the entire term of this agreement the insurance co%ciagc of at least ;I "B" rating, as dclernimcd ur accordance with fhc insurance industry standard, insuring not onl) CONTRACTOR, but also (mth the exception of sulkers' cotMpclssation and cmployer's liability insurance), CITY, its officers, agents, and employees, and each of fhcnt with respect to activities and services perforated by CONTRACTOR for or on behalf of CITY under the pros isions of Plus agreement. Cerlificates of such insurance, preferable on the fMins prodded b� CI I'Y, shall be. filed milli CITY concurrently with the execution of this agreement or, with CIIY'S approval, mlim tell (10) clays thereafter Said certificates shall be subject to the approval of the City Attorney and shall contain an endorscincnt st:;ling Ilea said insurance is primmn,coN-cra}r,c ;utcl %sill not be cancelled or altered by file insurer except after filing with the C6 Clerk thirty (30) days' written notice of such cancellation or alteration, and Thal the City of Cupertino is named as an additional insured. Current certificates of such insurance shall be kept on file at all times during file term of this agreement with the City Clerk. 18. AGREEMENT BINDING. The lerms, covenants, and conditions of this agrcerucni shall apply to, and shall bind, file heirs, successors, executors,administrators, assigns,and subcontractors of-both parties. Ili. WAIVERS The waiver by either part. of any breach or `.iolation of;any term, L':;.c:!:!!n. r condilion of,this agreement or any provision, ordinance, or law shall not be deemed to be a waiver of an) other term, covenant, coudifion, ordinanc or law or of any subsequent breach or violation of the same or of any oilier term, covenant, condition, ordinance. or law. The subsequent acceptance by either part),of any fee or otlicr money which may become due hereunder shall not ;,e deemed to be a waiver of any preceding breach or violation by tire other party of any term, covenant, or condition of this agreement or of any applicable law or ordinance. 20. COSTS .AND AT"hORNEYS FEES. The pre\ailing party in any action brought to enforce file terms of ilus agreement or arising out of this agreement may recover its reasonable costs mud aitor:teys' fees expended in connection with such an action from the other part). 21. NONDISCRIMINATION. No discrimination shalt be made In [lie etnplctiymenl of persons under this agreement because of the race, color, national origin, ancestry, religion or sex of st!ch person. if the value of this agreement is, or may be, Fivc Thousand Dollars ($5,000) or more, CONTRACTOR agrees to meet all requirements of the Cupertino Municipal Code pertaining io nondiscrimination in en!ployn!cnt and Lo complete and submit file "Compliance Report--Nondiscrimination Provisions of City of Cupertino ConUacfs" on the form furnisoc:d by CITY. If CONTRACTOR is found in violation of the nondiscri!uimiloll provisions of file State of California Fair 1?mploymcul Practices Act or similar provisions of federal law or excculive 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 CONTRAC'1.OR the sum of Twenty-five. Dollars ($25) for each person for each calendar day during which said person was discriminatcd against,as damages for said breach of-contract, or both. Only a finding of-the Stale of California Fair} mploynu m Practices Commission or file equivalent fcdcral agency or :::ficer shall constitute evidence of a violation of conlrtcl under This paragraph. If CONTRACTOR is found in violation of the nondiscrimination provisions of this agreement or the applicable affirinative action guidelines pertaining to this agreement, CONTRACTOR shall be found in material bleach of this agreentenl. 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 suns 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 boll!. 22. AGREEMENT CONTAINS ALL UNDERSTANDINGS. This document represents file entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, or agreements, either written or oral. This document may be intended only by written instrumcnl, 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, Ag►cc[ltcrtl !tu IICsII;It C'hItrfte Freedman f'uug and 13011;mmlcy Page-2- i. IW I IFS(IF Cl)N I RAI('Mit (a) ;iumccs to he I�ur ntslicd CON 1 RAI.'I(W ah,dl prop idc all specdled scr rccs as scl lorth below (Il!mn I)csrt;n consulting lot I)CSI III (."harcllc, nruituurt^ of 23 homs al S110tht (It) I ace"s to beObsci\.cd CONTRACTOR shall: (1) Procure all per[luts arrd Ifc:nscs, Imy all charges and fccs, and glee all notices rchich nta) tic lwcessar) and iacideui fo the due and lawful prosecution of the services to be perforated by CONTRACTOR under this agreement; (2) Kcep itself fully informed of at!existing and future Iedcral, state, and local laws, ordinances, wpilations, orders, and decrees which may affect those cligaged or employed under this agrcerncni, any materials used in ('ONfRAC TOR's performance under this agreement,or file conduct of the services ands► this agrce►ncul. (3) At all li►nc:, observe and compi} ,%ilh, w I cause all of its : :bcorrlracfors nncl cniployces, if'ally, to observe and cony;!),with, all of said laws,ordinances, regulations, orders, and decrees mentioned above; (4) Irunueliatel) rei"ort to the PROIGCI'MANACii:R in writing a[l`•discrep;ilicy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees nic+rlioncd above in rcialion to an) plans, diming, specifications, or provisions of this agreement. (c) Rcicase o!-Reporls and Informatiow Any reports, inf-onm.1hon, data, or olhcr malerial given to, or prepared or❑ssembIcd by, CONTRACTOR or its subcontractors, if any, under this agreement shall be the property of CITY and shall [lilt be matte available to a[l) individual or organization by CONTRACTOR or its sit[)(. racie.1 if'ally, wifhow file prior written approval of the City Manager. (d epo) ('obits of R ►ls aryl lr1lorn1alia[l. It (1—Y requests additional copies of reports, drawings, specifications or any other material which CONTRACTOR is required 10 filrnish in limited quanlitics as part of the services under this agrcenr.nl, C'ONTRA('TOR shall provide such additional copies as are requested arc! CITY shall co[lrpcnsrte CONTRACTOR for(lie costs of duplicating,,of such copies at C'ONTRACTOR'S cost. (C) Ou_alif caiiorls of Conlraclgr. CONTRA("TOR represents Ihat it is gwrlificd to inrush file services described under this agreement. -1. COMPFNSA`I'ION. For file full perlorntancc of'tilescrices described hcrcin by CONTRACTOR, CITY shall pay ('0N'1'If:',("T0t1 the total suns of- Three Thousand, One hundred and fifty dollars (3,150) , pa)ablc as follows: I'incipal: 20 - 21 !-lours ® 130.00/hr $ 2,700.00 Project Costs & Admin: $ 300.00 insurance Coverage: $ 150.00 Total $3,150.00 Agrccment for Dcsip Charette Freedman Tuna and Bottornley Page-6- IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this agreement the day and year first akmve ritten A`CI'ES'i': CITY OF CUPERT)NO City Clerk ; Mayor /61-1�1 7 3 APPROVED AS TO FORM: i City Atlon)ey _ Project Man cr r �+ r Contractor Name 47 Kearny St. , Suite 500 San Francisco, CA 94108 Address ( 415 ) 291-9455 Telephone CiN of CuPcrti"O 10300 Torre Avenue Cupertino,CA 95014-3255 Gdi-phone: (4081 252-4505 FAX: (408)252-0753 DEPARTMENT OF THE CITY CLERK November 15, 1993 Freedman, Tung& Bottomlcy 47 Kearney Street San Francisco, California 94108 We are enclosing to you for your files and information one (1) copy of the agreement by and between the City of Cupertino and Freedman, 'Tung& Bottomley, which has been fully executed by city officials. Your agreement shall begin on 09/01/93 and shall be completed by 11/30/93. Thank you for your services. Sincerely, r �s KIM M. SMITH CITY CLERK KS/cs Encl.