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HomeMy WebLinkAbout93-035 Sedway & Associates 93-035 SEDWAY & ASSOCIATES ACCOUNT NO. CONTRACT AMOUNT $3,600 PURCHASE ORDER 11 66 f 2 t AGREEMENT THIS AGREEMENT, made and entered i;ito this day of 1993,by and between the CITY OF CUPERTINO,a municipal corporation of California, hereinafter referred to as "Cl T Y", and Sedway and Associates, with offices at 3 Embarcadcro Center, Suite 1 150, San Francisco, California, 94111 hereinafter referred to as"CONTRACTOR'; WITNESSETH: WHEREAS, CITY desires to retain services in conjunction with a des;gn charettc;and WHEREAS, CITY desires to engage CONTRACTOR to provide those 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; NON,"I HEREFORE, 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, CaGtornia, or his designate-d representative. (,;) The term "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino, California, or his designated representative. (d) The icn-a "City Jerk" shall mean the duty appointed City Clerk of the City of Cupertino, California or her designated rcpreser•.tativ , 2. PROJECT COORDINATION. (a) City. Tne City Manager shall be representative of CiTY for all purposes under this agreement. Ciddy Wordell 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. Lynn Sedway 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. Sedway and Associates Page 2 Contract for Design Charcttc (c) Scryices to tic Furni hccL CONiRA(']OR shall provide all specified services as set forth below: Real Estate economics consulting services for Design Charette. maximum of 24 hours at $150/hr. ((I) Laws to be Observed. COiq'fRACTOR shall: `)F (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 la%%fill 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, rcgulations, 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 agrecment; (3) Al all linics 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 an), 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 bv, CONTRACTOR or its subconlractors, 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) _ ualifications of Contractor. CONTRACTOR represents Ihat it is qualified to furnish the smices described under this agreement. 4. COMPENSATION. For the full performancc of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR the total sum of Three.Thousand, Six hundred dollars(3,600). 5. DUTIES OF CITY. City shall provide staff time,background materials and other available information. 6. TERM. The services to be performed hereunder shall commence on October 1, 1993, and shall be completed by November 30, 1993. 7. _TEMPORARY SUSPENSION. The City Manger shall have the authority to suspend this agreement, wholly or in part, for such period as lie 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 arc not corn,?leted 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. Scdway and Associates Page 3 Contract for Design Charctte 9, SUSPENSION,TERMINATION. (a) Right to Sgsjjcnctc?r_i`crruinate Eithcr party may suspend or terminate this agreement for any reason by 06.-ing thirty (.30) days' written notice Upon receipt of such notice, CONTRACTOR shall immediately discontinue his performance under this agreement. (b) Payn-i_gnt. Upon such suspension or tct-mination, CONTRACTOR shall he 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 arc 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 or for CITY's use of complete documents if used for other than the project conteneplatcd 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 ar►)-, 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 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 agrecreent. 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,vthout 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 cannot be performed by any other person or organization. (b) Subcontract�rs Bne loyces. 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 arc deemed to be employees of CONTRACTOR, and it agrees to be responsible for their performance. CONTRACTOR shall g, ,; 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. ' Sedtway and Associates Page 4 Contract for Design Charette 13. NOTiCES. All notices hereunder shall be given in writing and mailed, postage prepaid, by certified ruail, addressed as follows: TO CITY: OfTce of Cite City Clerk 10300 Torre Avcnue Cupertino, CA 95014-0540 TO CONTRACTOR: Attention of the PROJECT DIRECTOR at the address of CONTRACTOR recited above. 14. INTEREST OF CONTRACTOR. CONTRACTOR covenants that it presen has no interest, and shall not acquire any interest, direct or in,firect, financial or otherwise, which would conflict r" 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 havi,!g such an interest shall be employed. CONTRACTOR certifies that no one who has or will have any financiai 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 deenird an independent contractor and not an agent or employee of CITY, 1.5. INDEMNITY. CON MACTOB 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 p:opc,rty 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 6inission, 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 eIi ClalntS and dettlilnd5 which ma}' 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 arty subcontractor under this agreement, however caused, excepting, however, any such claims and demands twhich 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 from sources other than his/her own or from conclusions reached as a result.of utilizing information supplied by third persons. 16. WORKERS' COMPENSA'TIr)N. CONTRACTOR certifies that it is aware of Cite provisions of the Labor Code of Cie 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. 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 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 Vie forms provided by CITY, shall be riled 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 Scdwav and Associates Page 5 Contract for Design Charettc not be can;xited or altered by ttre insurer except after filing with the City Clerk thirty (30) days' written notice of such cancellation or alteration, and tliat the City of Cupertino is named as an additional insured. Current cerlif►cater of such insurance shall be kept on file at all times during the lean of this agreement with the City Clerk. 19. 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. "ncc 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 decn►ed 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. 2.0. _COSTS AND ATTORNEYS FEES. The prevailing party in any action brought to enforce the terms of this agreen►cn! 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. NONDiSCRIMINAT_iO_N. No discrimination shall tic made in the employment of persons under this agreement because ofthe 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 a°1 requirements of the Cupertino Municipal Code pertaining to nondiscrimination ip. 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 lavv or executive order in the performance of this agreement, it shall thereby be found in material breach of this agreement. Thereupon, CiTY shaft 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 T%venty-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 unufcr 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 front the amount payable to CONTRACTOR the stun of Two hundred Fifty Dollars ($250) for cacti calendar day during which CONTRACTOR is found to have been in such noncompliance as damages for said breach of contract, or both. 22. AGREEMENT CONTAINS ALL UNDE-,RSTANDINGS. 'This document represents ti►e entire and integrated agreement bctwcen CiTY and CONTRACTOR and supersedes ill prior negotiations, representations, or agreements, either written or oral. This document may be amended oniy 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. Sedwav and Associates Page 6 Contract for Design Charette IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this agreement the day and year first above written. A"(TEST: CITY OF CUPERTINO e City Clerk Mayor APPP,GVED AS TO F R r - City Attorney Project M,(nagcr c dway & Associates Lyir M. Sedway, President Contractor Name Three Embarcadero Center Suite 1150 San Francisco, CA 94111 Address (415) '/a.-8900 Teicphonc or Tax I.D. number g/mm/misc/scdway cit-4 of Cuperti"o 10300 Torre Avenue Cupertino.CA 95014-3255 telephone: (408)252-4505 FAX: (408)2_52-0753 DEPARTMENT OF THE CITY CLERK November 15, 1993 Sedway and Associates 3 Embarcadero Center, Suite 1 150 San Francisco, California 94111 We are enclosing to you for your files and information one (1) copy of the agreement by and between the City of Cupertino and Sedway and Associates, which has been fully executed by city officials. Your agreement shall begin on 10/01/93 and shall be completed.by 11/30/93. Thank you for your services. Sincerely, KIM M. SMITH CITY CLERK KS/cs Encl.