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11-004 Agreement, H.T. Harvey & Associates, Scenic Circle Access Project, Biological Consulting Services-----~ AGREEMENT CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 408-777-3200 CUPER~INOG qo 1 t BY THIS AGREEMENT, made and entered into this 2nd day of February , 2011, by and between the CITY OF CUPERTINO (Hereinafter referred to as CITY) and H. T. Harvey & Associates; Address: 983 University Avenue, Building D, Los Gatos, CA 95032; Phone: 408·458-3200; e-mail: srottenborn@harveyecolqgy.com {Hereinafter referred as CONSULTANT), in consideration of their mutual covenants, the parties hereto agree as follows: CONSULTANT shall provide or furnish the following specified services and/or materials: for Scenic Circle Access Project provide Biological Consulting Services for Construction EXHIBITS: The following attached exhibits hereby are made part of this Agreement: Proposal marked "EXHIBIT A" TERMS: The services and/or materials furnished under this Agreement shall commence on February 2, 2011 and shall be completed before August 31, 2011. COMPENSATION: For the full performance of this Agreement, CITY shall pay CONSULTANT: To be based on Time and Materlal not to exceed $3,346.00 without City written approval California Labor Code, Section 1771 requires the payment of prevailing wages to all workers employed on a Public Works contract in excess of $1,000.00. GENERAL TERMS AND CONDITIONS Hold Harmless. A. Claims for professional Llabl!ltJl. Where the Jaw establishes a standard of care for Consultant's professional services, and to the extent the Consultant breaches or falls to meet such established standard of care, or Is alleged to have breached or failed to meet such standard of care, Consultant shall, to the fullest extent allowed by law, with respect to all services performed In connection with the Agreement, indemnify, defend, and hold harmles.s the City and Its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, Including any Injury to or death of any person or damage to property or other llabll!ty of any nature, that arise out of, pertain to, or relate to the negligence, recklessness, or wliiful misconduct of Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigatlon. Consultant shall not be obligated under this Agreement to Indemnify City to the extent that the damage ls caused by the sole or active negllgence or wlllful misconduct of City, its agents or employees. B .• Claims for otl!e1· Uab!!ity. Consultant $half, to the fUJle$1 extent allowed by law, with respect to all services performed in connecU.on with the Agreement Indemnify, defend, <1nd h()ld harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, Including any Injury to er death of any person or damage to property or other llablllty of any nature, that arise out of, pertain to, or relate to the performance of tilts Agreement by Consultant or Gonsultaht's employees, officers, officials, agents or independent contract()rs. Such costs and expenses shall lnelude reasonable attorneys' fees of counsel of City's choic.e, expert fees and all other costs and fees of litigation. Insurance. Should the City require evidence of insurabllity, Consultant shall file with City a Certificate of Insurance before commencing any services under !his Agreement. Said Certificate shall be subject to the approval of City's Director of Admlnlstrailve Services. Non-Discrimination. No discrimination shall be made In the employri1ent of persons under lhls Agreement because oflhe race, color, national origin, ancestry, rellglon or sex of s1.1ch person. Interest of con.sultant. It ls understood and agreed that this Agreement ls not a contract of employment In !he sense that the relationship of master and servant exists between City and undersigned. At all times, Consultant, shall be deemed to be an Independent consultant and Consultant ls not authorized to bind the City to any contracts or other obligations in executing this agreement. Consultant certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of Cily. Changes. This Agreement shall not be asstgned or transferred without the written consent of the Clly. No changes or varlallons of any kind are authorized without the w!ltten consent of the Clty. CONTRACT CO-ORDINATOR and representative for CITY shall be: NAME: Gail Seeds, Project Manager, Public Works Department This Agreement shall become effective upon its execution by CITY, in witness thereof, the parties have executed this Agreement the day and year first written above. CONSULTANT: By ~C<~~=-= Title fr)Vlc:.~ pal , Soc. Sec.# or Tax l.D 97" tlOt.;Cf.S-S APPROVALS Nnn-Desi911 Professkma1 Agreement CITY OF CUPERTINO: By:~-~-----­ Terry W. Greene, AIA, City Architect EXPENDITURE DISTRIBUTION $3,346.00 . 28 January 2011 Gail Seeds City of Cupertino 10300 TolTe A venue Cupertino, CA 95014 H. T. HARVEY & ASSOCIATES ECO.LOG/CAL CONS U IJ 1'ANTS . EXHIBIT A RE: Scenic Circle Access to Stevens Creek Trail and Blackberry Fann Project -Proposal for Pre- Constmction Surveys (Proposal #6275) Dear Ms. Seeds: Per your request, H. T. Harvey & Associa~es is pleased to provide a proposal to assist the City of Cupel1ino with implementation of the required biological mitigation measures for the Scenic Circle Access to Stevens Creek Trail and Blackberry Farm Project located within the Stevens Creek Corridor between Scenic Circle and Blackberry Farm Park in the City of Cupertino, Califomia. Based on the requirements set fol1h in the Project's Initial Study/Mitigated Negative Declaration that you provided to us, it is our understanding that pre-construction surveys for the California red- legged frog (Rana draytonii), western pond turtle (Actinemys marmorata), San Francisco dusky- footed woodrat (Neotoma fitscipes annectens), nesting birds, and roosting bats are required. The level of effort that we have assumed for these tasks, as well as additional optional tasks that we have included in our proposal, are based on your 26 January email to Steve Rottenborn. We will bill this work on an hourly basis, plus mileage expenses, not to exceed $3346per the attached budget spreadsheet and fee schedule. If you have any questions, please contact me at gbolen@harveyecology.com or (408) 458-3246 or Steve Rottenborn at srottenborn@harveyecology.com or (408) 458-3205. Thank you very much for contacting H.T. Harvey & Associates regarding this project. Sincerely, ~~dL Ginger M. Bolen, Ph.D. Senior Wildlife Ecologist Attachments: Budget spreadsheet and fee schedule 983 University Avenue, Building D ·Los Gatos, CA 95032 ·Ph: 408.458.3200 · F: 408.458.3210 PROPOSED SCOPE OF SERVICES SCENIC CIRCLE ACC~SS TO STEVENS CREEK TRAIL AND BLACKBERRY FARM PROJECT BIOLOGICAL PRE-CONSTRUCTION SURVEYS Proposal #6275 28 January 2011 H. T. Harvey & Associates proposes to provide biological pre-construction surveys and constl'Uction monitoring services to the City of Cupertino during construction of the Scenic Circle Access to Stevens Creek Trail and Blackbeny Farm Project (Project) located within the Stevens Creek Con·ido1· between Scenic Circle and Blackbeny Farm Park in the City of Cupertino, California. The proposed scope includes pre-construction surveys, construction monitoring, and related tasks required as conditions of the regulatory and CEQA approvals for this project for construction wo1·k in 2011. In preparing the proposed scope of services, we have reviewed the biological mitigation measures prescrjbed by the Scenic Circle Access to Stevens Creek Trail and Blackberry Farm Initial Study/Mitigated Negative Declaration. Specific tasks associated with this scope of work are as follows: TASK 1. PREMCONSTRUCTION SURVEY AND REPORT A qualified biologist will perform an initial pre-construction survey for sensitive species as identified in the Initial Study/Mitigated Negative Declaration. This survey will take place four days or fewer prior to the start of project activities and will cover the entire project site and immediately adjacent areas that could be subject to disturbance during construction. Species on which this survey will focus include the following: • California red-legged frog • Western pond turtle • San Francisco dusky-footed woodrat • Nesting birds • Roosting bats If any active bird nests, woodrat nests, or bat roosts are detected, the nest/roost location will be mapped. If any other sensitive species are detected during this survey in areas where they could potentially be affected by project activities, we will notify the City of Cupertino. Following completion of these initial surveys, we will prepare a written report summarizing the results of the surveys and any recommendations regarding protective buffers around active bird nests. In the event that more than five days elapse between the initial survey and the beginning of construction activities, another survey for nesting birds shall be conducted. In case a California red-legged frog, western pond turtle, or San Francisco dusky-footed woodrat is detected, the budget for this task includes a minimal amount of time to coordinate with the CDFG or USFWS (in the event a California red-legged frog is detected) in order to detennine the appropriate mitigation measures to be implemented. TASK 2. ENVfilONMENTALLY SENSITIVE AREA FENCE DESIGN Prior to the installation of Environmentally Sensitive Area (BSA) fencing on the project site, an H. T. Harvey & Associates biologist will meet on site with the City's representative to field fit the fence (i.e., determine the most ecologically appropriate location). OPTIONAL TASK A. CONSTRUCTION MONITORING If during Task 1 a westem pond tmtle is detected and an environmental monitor is required to be present during construction activities, H. T. Harvey & Associates will provide a qualified biological monitor to work with construction crews to implement any CDFG required avoidance measures. Following completion of all monitoring events, we will prepare a brief letter repoti summarizing the activities that occurred, all observations of monitored special-status species, and any avoidance measures that were implemented. OPTIONAL TASK B. SAN FRANCISCO DUSKY-FOOTED WOODRAT NEST DISMANTLING If during Task 1 a San Francisco dusky-footed woodrat nest is located, H. T. Harvey & Associates will provide a qualified biologist to; subsequent to CDFG approval, dismantle the woodrat house and construct a new artificial house with materials from the dismantled house. LIMITATIONS/ASSUMPTIONS For the sake of estimating the cost of such services, we have assumed the following: • Two pre-construction surveys will be required. • Construction monitoring (Optional Task A) would be required for a maximum of two days. • A maximum of two San Francisco dusky-footed woodrat houses would need to be dismantled (Optional Task B). FEE ESTIMATE We will bill this work on an hourly basis, plus mileage expenses. The following is a summary of our fee estimate for the above scope. A detailed estimate with hours by staff person is attached. Task Fee Estimate 1. Pre-construction Survey and Repo1t $2768 2. Environmentally Sensitive Area Fence Design $577 Not-to-Exceed Total $3346 Optional Task A. Construction Monitoring $2442 Optional Task B. Woodrat Nest Dismantling $1102 H. X HARVEY & ASSOCIATES ECOWGICAL CONSULTANTS Project Name: Scenic Circle Assess to Stevens Creek Trail and Blackberry Farm Project Proposal Number: 6275 Project Number: Date: 28 January 2011 Personnel Hours by Task f ~ ]i <::. -Cl ;: Cl ~ 1:l ~ ~ ~ 0 ~ <::. :B .... a .... .... ~ ·a 0 (:; ~]J w ~ ro >-.... ~ a. Cl ~ ..... Cl .s ~ U.Q ·§~ ~ c 0 .s ~ '5 Task -;:: 0 co 0 ~ ~ ~ a. w G CJ) w ~ 00 6 a . ..... .cl a-..... c::i $215/hr $145/hr $116/hr $105/hr 1. Pre-construction Survey and Report 2 4 12 2 2. ESA Fencing Design 1 3 Total Labor Hours 3 4 15 2 TOTAL COST $ 645 $ 588 $ 1,740 $ 210 Optional Task A. Construction Monitoring 2 18 Optional Task B. Woodrat Nest Dismantling 1 8 .. q; .. = II,) ~ ~ .... (,I Q,l lo< .... t:: Q 0 ;i= 0. HTHCostby Total §' 5 Project Cost 00 Task $80/hr 1 $2,700 $68 $2,768 $563 $14 $577 1 $ 80 $3,263 $83 $3,346 $2,382 $60 $2,442 $1,075 $27 $1,102 ------------------------"-··-""·•-""---·-............. -..... 1 H. T. HARVEY & ASSOCIATES ECOLOGICAL CONSULTANTS Professional Fees Fees Effective January l, 2011 Personnel Classification Principal Senior Associate Ecologist Associate Ecologist Senior Ecologist 2 Senior Ecologist 1 Ecologist 2 Ecologist 1 Field Biologist 2 Field Biologist l GIS Specialist Technical Editor Administrative Support Clerical Support Deposition and Testimony Subcontractual Consultants Direct Expenses Transportation Travel per diem (at cost) Computer Services Field Equipment Operation Hourly Billing Rate $ 215-247 $ 194 $179 $163 $147 $ 131 $116 $ 100 $84 $ 105 $100 $ 80 $ 65 Two times standard Cost plus 10% Cost plus 10% Current IRS Federal Standard Mileage Rate (51 ¢I mile as ofJanumy 20!1) ~$188/day Variable "Variable Form W·9 Request for Taxpayer Give form to the (Rev. October 2007) Identification Number and Certification requester. Do not send to the IRS. Deparffnent of the Treasury lntarnal Revenue Service Name (as shown on your income tax return) ,.,; Triple HS Incorporated "' 2' Business name. if different from above 0. c H. T. Harvey & Associates 0 Q) II) Check appropriate box:' D Individual/Sole proprietor IZl Corporation D Partnership 0. § D D Exempt Q:;J Limited liability company. Enter the tax classification (D~disregarded entity. c~corporat1on, P=paiinership) P. • • ~. A' ' payee ... t.) 0 2 D Oiher (see instructions) i.. c: ti) ·c:..S Address (number, street, and apt. or suite no.) Requester's name and address (optional) 0.. t.) :E 983 University Avenue, Building D ~·------------·--------------~·-----------.w~-·-- t.) City, state, and ZIP code "' Q. Los Gatos, CA 95032 U) <ll List account number(s) here (optional) <ll Cf) •• P.I ~· Taxpayer ldentificatio_n Number (TIN) ·---·-··- Enter your TIN in the appropriate box. The TIN provided must match the name given on Line 1 to avoid backup withholding. For individuals, this is your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities. it Is your employer identification number (EIN). II you do not have a number, see How to get a TIN on page 3. or Note. If the account is in more than one name. see the chart on page 4 tor guidelines on whose Employer identification number number to enter. 94 2204955 Under penalties ot periury, I certify that: 1. The number shown on this form is my correct taxpayer identification number {or I am waiting for a number to be issued to me), and 2. I am not subject to backup withholding because: (a) I am exempt tram backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. I am a U.S. citizen or other U.S. person (defined below). Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have fa/led to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than Interest and dividends, you are not required to sign the Certification, but you must provide your correct TIN. See e instructions on page Sign Here Signature of U.S. person II> General Instruct' Section references are to the Internal Revenue Code unless ot~erwise noted. Purpose of Form A person who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA. Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN to the person requesting it (the requester) and, when applicable, to: 1. Certify that the TIN you are giving is correct (or you are. waiting for a number to be issued), 2. Certify that you are not subject to backup withholding, or 3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners' share of effectively connected income. Note. If a requester gives you a form other than Form W-9 to request your TIN, you must use the requester's form if it is substantially similar to this Form W-9. · Date JI>. Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are: • An individual who is a U.S. citizen or U.S. resident alien, • A partnership, corporation, company, or association created or organized in the United States or under the laws of the United State!\, • An estate (other than a foreign e:;tate), or • A domestic trust (as defined in Regulations section 301.7701-7). Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax on any foreign partners' share of income from such business. Further, in certain cases where a Form W-9 has not been received, a partnership is required to presume that a partner is a foreign person. and pay the withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid withholding on your share of partnership income. The person who gives Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding. withholding on its allocable share of net income from the partnership conducting a trade or business in the United States is in the following cases: • The U.S. owner of a disregarded entity and not the entity, Cat. No. 10231 X Form W-9 (Rev. 10·2007)