SunnyvaleRTC



CONSULTANT SERVICES AGREEMENT BETWEEN THE CITY OF SUNNYVALE
AND KEYSER MARSTON ASSOCIATES, INC.,
FOR ADVISORY SERVICES RELATIVE TO THE DOWNTOWN REDEVELOPMENT PROJECT


THIS AGREEMENT dated July 1, 2003 is by and between the CITY OF SUNNYVALE, a municipal corporation ("CITY"), and KEYSER MARSTON ASSOCIATE, INC., a California corporation ("CONSULTANT").


WHEREAS, CITY is in need of marketing, financial, economic and disposition advisory services in relation to the Downtown Redevelopment Project; and

WHEREAS, CONSULTANT possesses the skill and expertise to provide the required services;

NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT.

1. Services by CONSULTANT

CONSULTANT shall provide services in accordance with Exhibit "A" attached and incorporated by reference. CONSULTANT shall determine the method, details and means of performing the services.

2. Time for Performance

The term of this Agreement shall be the date of Agreement execution through June 30, 2004, unless otherwise terminated. CONSULTANT shall deliver the agreed upon services to CITY as specified in Exhibit "A". Extensions of time may be granted by the City Manager upon a showing of good cause.

3. Duties of CITY

CITY shall supply any documents or information available to City required by CONSULTANT for performance of its duties. Any materials provided shall be returned to CITY upon completion of the work.

4. Compensation

CITY agrees to pay CONSULTANT at the rates set forth in Exhibit "B" attached and incorporated by reference. Total compensation shall not exceed Forty Nine Thousand and no/100 Dollars ($49,000.00). CONSULTANT shall submit invoices to CITY to be paid in accord with the procedures set forth in Exhibit "B".

5. Ownership of Documents

CITY shall have full and complete access to CONSULTANT's working papers, drawings and other documents during progress of the work. All documents of any description prepared by CONSULTANT shall become the property of the CITY at the completion of the project and upon payment in full to the CONSULTANT. CONSULTANT may retain a copy of all materials produced pursuant to this Agreement.

6. Conflict of Interest

No officer or employee of CITY shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof. During the term of this Agreement, CONSULTANT shall not accept employment or an obligation which is inconsistent or incompatible with CONSULTANT's obligations under this Agreement.

7. Confidential Information

CONSULTANT shall maintain in confidence and at no time use, except to the extent required to perform its obligations hereunder, any and all proprietary or confidential information of CITY of which CONSULTANT may become aware in the performance of its services.

8. Compliance with Laws

(a) CONSULTANT shall strictly adhere to all state and federal laws with respect to discrimination in employment and shall not discriminate against any individual on the basis of race, color, religion, gender, sexual orientation, marital status, national origin, age or disability.

(b) CONSULTANT shall comply with all federal, state and city laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the Agreement.

9. Independent Contractor

CONSULTANT is acting as an independent contractor in furnishing the services or materials and performing the work required by this Agreement and is not an agent, servant or employee of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT. CONSULTANT is responsible for paying all required state and federal taxes.



10. Indemnity

CONSULTANT agrees to indemnify, defend and hold harmless CITY and its officers, officials, employees and volunteers from and against claims, damages, losses and expenses, including attorney fees, arising out of the performance of the work described herein, caused in whole or in part by any negligent act or omission of CONSULTANT, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of CITY.

11. Insurance

CONSULTANT shall take out and maintain during the life of this Agreement policies of insurance as specified in Exhibit "C" attached and incorporated by reference, and shall provide all certificates and endorsements as specified in Exhibit "C."

12. CITY Representative

Robert Paternoster, Director of Community Development, as the City Manager's authorized representative, shall represent CITY in all matters pertaining to the services to be rendered under this Agreement. All requirements of CITY pertaining to the services and materials to be rendered under this Agreement shall be coordinated through the CITY representative.

13. CONSULTANT Representative

A. Jerry Keyser shall represent CONSULTANT in all matters pertaining to the services and materials to be rendered under this Agreement; all requirements of CONSULTANT pertaining to the services or materials to be rendered under this Agreement shall be coordinated through the CONSULTANT representative.

14. Notices

All notices required by this Agreement shall be in writing, and shall be personally delivered, sent by first class with postage prepaid, or by sent by commercial courier, addressed as follows:

To CITY:	Robert Paternoster
	Director of Community Development
	CITY OF SUNNYVALE
	P. O. Box 3707
	Sunnyvale, CA 94088-3707


To CONSULTANT:	A. Jerry Keyser
	KEYSER MARSTON ASSOCIATES, INC.
	Golden Gateway Commons
	55 Pacific Avenue Mall
	San Francisco, CA 94111

Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by telephone or facsimile transmission, to accomplish timely communication. However, to constitute effective notice, written confirmation of a telephone conversation or an original of a facsimile transmission must be sent by first class mail or commercial carrier, or hand delivered. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of two days after mailing, unless such date is a date on which there is no mail service. In that event communication is deemed to occur on the next mail service day.

15. Assignment

Neither party shall assign or sublet any portion of this Agreement without the prior written consent of the other party.

16. Termination

If CONSULTANT defaults in the performance of this Agreement, or materially breaches any of its provisions, CITY at its option may terminate this Agreement by giving written notice to CONSULTANT. If CITY fails to pay CONSULTANT, CONSULTANT at its option may terminate this Agreement if the failure is not remedied by CITY within thirty (30) days from the date payment is due.

Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY also shall have the right to terminate this Agreement for any reason upon ten (10) days' written notice to CONSULTANT. In the event of such termination, CONSULTANT shall be compensated in proportion to the percentage of services performed or materials furnished (in relation to the total which would have been performed or furnished) through the date of receipt of notification from CITY to terminate. CONSULTANT shall present CITY with any work product completed at that point in time.

17. Entire Agreement; Amendment

This writing constitutes the entire agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing signed by all parties.
Final Page with Signatures

EXHIBIT A

SCOPE OF SERVICES

When and as directed by CITY, CONSULTANT shall perform disposition and financial advisory consulting services for the CITY to include, but not be limited to the following:

1. Consult, assist and advise the CITY with respect to marketing, financial and disposition issues.

2. Participate in formal and informal discussions and presentations with potential developers and community officials.

3. Undertake evaluation of existing economic feasibility studies and prepare highest and best use analysis.

4. Financial testing of land use and development concepts, including review of projected development cost, income, and financing for private capital.

5. Advise on alternative financing options for a public private partnership, including funding of public improvements and private investment.

6. Structure options for land disposition business terms, including reuse fair market value and reuse value, ground leases, and participating land sales.

7. Assist legal counsel in drafting documents.

8. Assist staff in the preparation of the Summary Report under Sec. 33433 under the California Redevelopment 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..

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, 2003:

A. Jerry Keyser	$215.00
Managing Principals	$210.00
Principals	$195.00
Managers	$160.00
Senior Associates	$145.00
Associates	$125.00
Senior Analysts	$110.00
Analysts	$ 95.00
Technical Staff	$ 75.00
Administrative Staff	$ 60.00

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 processing, graphics and printing. Directly related job expenses will be billed at actual cost.

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.

* Rates for individuals in these categories will be increased by 50% for time spent in court testimony.

EXHIBIT C

INSURANCE REQUIREMENTS

CONSULTANT shall obtain, at its own expense and from an admitted insurer authorized to operate in California, the insurance coverage detailed below and shall submit Certificate(s) of Insurance to the City of Sunnyvale, Purchasing Division, 650 West Olive Ave, PO Box 3707, Sunnyvale, CA 94088-3707; fax (408) 730-7710.

CONSULTANT shall take out and maintain during the life of the contract Workers’ Compensation and Employer’s Liability Insurance for its employees. The amount of insurance shall not be less than $1,000,000 per accident for bodily injury or disease.

CONSULTANT shall take out and maintain during the life of the contract such Commercial General Liability Insurance as shall protect CONSULTANT, CITY, its officials, officers, directors, employees and agents from claims which may arise from services performed under the contract, whether such services are performed by CONSULTANT, by CITY, its officials, officers, directors, employees or agents or by anyone directly or indirectly employed by either. The amount of insurance shall not be less than the following: Single Limit Coverage Applying to Bodily and Personal Injury Liability and Property Damage: $1,000,000.

The liability insurance shall include, but shall not be limited to:

· Protection against claims arising from bodily and personal injury and damage to property, resulting from CONSULTANT's or CITY's operations and use of owned or non-owned vehicles.

· Coverage on an "occurrence" basis.

· Broad form property damage liability. Deductible shall not exceed $5000 without prior written approval of CITY.

· Notice of cancellation to CITY's Purchasing Division at least thirty (30) days prior to the cancellation effective date.

The following endorsements shall be attached to the liability insurance policy, and copies shall be submitted with the Certificate(s) of Insurance:

· The policy must cover complete contractual liability. Exclusions of contractual liability as to bodily injuries, personal injuries and property damage must be eliminated.

· CITY must be named as additional named insured with respect to the services being performed under the contract. Simply indicating on the certificate that the certificate holder is named as additional insured is not acceptable; an endorsement must be provided.

· The coverage shall be primary insurance so that no other insurance effected by CITY will be called upon to contribute to a loss under this coverage.