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06-040, HNTB Corp. Stevens Creek Park projectdG~oyd AGREEMENT FOR DESIGN, PROJECT, AND CONSTRUCTION MANAGEMENT SERVICES BETWEEN THE CITY OF CUPERTINO AND b~ '~ HNTB CORPORATION, A T a,~~ -~ / ~ _ DELAWARE CORPORATION, FOR THE STEVENS CREEK CORRIDOR PARK PROJECT THIS AGREEMENT is made and entered into this 2°a day of June, 2006 by and between the City of Cupertino, a municipal corporation, hereinafter referred to as CITY, and HNTB Corporation, a Delaware Corporation, hereinafter referred to as CONSULTANT. RECITALS WHEREAS, the CITY OF CUPERTINO desires to obtain Design, Project, and Construction Management consultant services for the Stevens Creek Corridor Park; and WHEREAS, HNTB Corporation has the necessary professional expertise and skill to perform the Design, Project, and Construction Management services required. NOW, THEREFORE, the purpose of this Agreement is to retain HNTB Corporation as CONSULTANT TO THE CITY to perform those services specified in Exhibit A of this Agreement. THE PARTIES HEREBY AGREE AS FOLLOWS: Section 1. Scope of Services. CONSULTANT shall perform those services specified in detail in Exhibit A, entitled "Scope of Work", which is attached hereto and incorporated herein. Section 2. Term of Agreement. The term of this AGREEMENT shall be retroactive from April 19, 2006, and continue through April 30, 2008, inclusive, subject to the provisions of Exhibit A, of this AGREEMENT. In the event that the services called for under this AGREEMENT are not completed within the time specified above, the City Manager may extend the time for completion. This section does not preclude the recovery of damages for delay by either p~Y• BASIC AGREEMENT Section 3. Schedule of Performance. The services of CONSULTANT are to be completed according to the schedule set out in Exhibit B, entitled "Schedule of Performance", which is attached hereto and incorporated herein. CONSULTANT is not responsible for delays beyond CONSULTANT'S reasonable control. For the purposes of this Agreement, such circumstances include, but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war, riots, and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage; judicial restraint; and delay in or inability to procure permits, licenses, or authorizations from any local, state, or federal agency for any of the supplies, materials, accesses, or services required to be provided by either CITY or CONSULTANT under this Agreement. CONSULTANT shall be granted a reasonable extension of time for any delay in its performance caused by any such circumstances. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Section 4. Compensation. The compensation to be paid to CONSULTANT for professional services and reimbursable expenses shall not exceed FOUR HUNDRED THOUSAND and 00/100 Dollars ($400,000). The rate and schedule of payment is set out in Exhibit C, entitled "Compensation", which is attached hereto and incorporated herein. Section 5. Method of Payment. Upon completion of each task, as specified in Exhibit A, the CONSULTANT shall furnish to the CITY a detailed statement of the work performed for compensation during Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 2 of 14 BASIC AGREEMENT the term of this Agreement. Consultant may submit monthly invoices for interim progress payments during the course of each phase. Section 6. Independent Contractor. It is understood and agreed that CONSULTANT, in the performance of the work and services agreed to be performed by CONSULTANT, shall act as and be an independent contractor and not an agent or employee of CITY; and as an independent contractor, CONSULTANT shall obtain no rights to retirement benefits or other benefits which accrue to CITY'S employees, and CONSULTANT hereby expressly waives any claim it may have to any such rights. Section 7. No Third Party Rights. CONSULTANT'S services under this agreement are intended for the sole benefit of CITY and CONSULTANT. Nothing in this Agreement shall create any third party rights or benefits. Section 8. Proiect Coordination. (a) CITY: The City Manager shall be representative of CITY for all purposes under this agreement. Ralph Qualls, Director of Public Works, is hereby designated as the CITY PROJECT MANAGER for the City Manager, and shall supervise the progress and execution of this agreement. (b) CONSULTANT: CONSULTANT shall assign a single CONSULTANT PROJECT MANAGER to have overall responsibility for the progress and execution of this agreement for CONSULTANT. Rachael Keish is hereby designated as the PROJECT MANAGER for CONSULTANT. Should circumstances or conditions subsequent to the execution of this agreement require a substitute CONSULTANT PROJECT MANAGER for any reason, the CONSULTANT PROJECT MANAGER designee shall be subject to the prior written acceptance and approval of the CITY PROJECT MANAGER. Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 3 of 14 BASIC AGREEMENT Section 9 Assignability /Sub consultants / Employees. The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. Neither Party shall assign or transfer any interest in this Agreement or the performance of any obligations hereunder, without the prior written consent of the other party, and any attempt by a party to so assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect provided, however, CONSULTANT may assign its right to payment without CITY'S consent. CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT hereunder. No sub consultant of CONSULTANT will be recognized by CITY as such; rather, all sub consultants are deemed to be contractors of CONSULTANT, and it agrees to be responsible for their performance. CONSULTANT shall give its collective professional attention to the fulfillment of the provisions of this agreement by all of its employees and sub consultants, if any, and shall keep the work under its control. If any employee or sub consultant of CONSULTANT 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, such employee or sub consultant shall be discharged immediately from the work under this agreement on demand of the PROJECT MANAGER. Section 10. Indemnification. CONSULTANT shall defend, indemnify, and hold harmless CITY, its officers, agents and employees of any and all claims, loss, or liability to the extent caused by negligent acts (active or passive), errors or omissions by CONSULTANT'S officers, employees, or agents. The acceptance of said services and duties by CITY should not operate as a waiver of such right of indemnification. This provision of Section 9 shall survive the term of the AGREEMENT. Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 4 of 14 BASIC AGREEMENT Section 11. Insurance Requirements. The CONSULTANT shall maintain at all times during the performance of the Agreement the following insurance and endorsements: A. Workers' Compensation and Employer's Liability Insurance: Workers' compensation insurance indicating compliance with State's workers' compensation laws and employer's liability insurance with a minimum of one million dollars ($1,000,000.00) per accident for injury, death or disease to any employee. The policy shall contain an endorsement waiving all rights of subrogation against the City, its officers, officials, employees or volunteers. B. Professional Liability, General Liability and Automobile Liability Coverage: 1. Automobile Liability Insurance shall include coverage for bodily injury and property damage for owned (if any), hired and non-owned vehicles and shall not be less than one million dollars ($1,000,000.00), combined single limit for any one occurrence. 2. Comprehensive or Commercial General Liability Insurance shall include coverage for bodily injury, property damage and personal injury for premises operations, product/completed operations and contractual liability. The amount of the insurance shall not be less than one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) aggregate, combined single limit. (Claims made policies are not acceptable.) Consultant shall also provide aggregate limits endorsement and primary insurance endorsement. 3. Professional liability Insurance (including Contractual Liability) shall include coverage for claims for negligent acts, errors or omissions and shall not be less than one million dollars ($1,000,000.00) per claim, and one million dollars ($1,000,000.00) in the aggregate. C. Additional Insurance Provisions 1. The CITY shall have the right to inspect or obtain a copy of the original policies of insurance. If CONSULTANT is requested by CITY to provide a Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 5 of 14 BASIC AGREEMENT copy of the declaration page and / or the policy, CONSULTANT may remove proprietary information prior to submittal to CITY. 2. The general and auto liability policies shall be endorsed to name the CITY, its officers, officials, employees or volunteers as additional insureds for liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant's insurance, as a separate Owner's and Contractor's Protective Liability Policy, or on the Entity's own form. 3. The general and auto liability policies shall be endorsed to provide primary insurance coverage for claims related to the services provided under this contract, subject to the terms and conditions of the policies. 4. CONSULTANT shall furnish to the CITY within 15 days following the execution of this Agreement, the required certificates and endorsements. The certificate of insurance shall state the policy will not be cancelled without thirty (30) days written notice to the CITY. Section 12. Nondiscrimination. CONSULTANT shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, or national origin in connection with or related to the performance of this Agreement. Section 13. Termination. A. CITY or CONSULTANT shall have the right to terminate this Agreement without cause, by giving not less than thirty (30) days written notice of termination. B. If CITY or CONSULTANT fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, the other party may terminate this Agreement upon thirty (30) days written notice if the non- Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 6 of 14 BASIC AGREEMENT performing party fails to take steps to correct such failure or submit a plan to correct such failure, acceptable to the other party, within the notice period. C. CITY'S City Manager is empowered to terminate this Agreement on behalf of CITY. D. In the event of termination, CONSULTANT shall deliver to CITY upon payment to CONSULTANT therefore, copies of all reports, documents, and other work performed by CONSULTANT under this Agreement, and upon receipt thereof, CITY shall pay CONSULTANT for services performed and reimbursable expenses incurred to the date of termination. All documents, including, but not limited to, plans, drawings, and specifications, prepared by CONSULTANT as deliverables pursuant to the Scope of Services are instruments of service in respect to the Project. They are not intended or represented to be suitable for reuse by CITY or others, on modifications or extensions of the Project, or on any other project. Any reuse by CITY without prior written verification or adaptation by CONSULTANT for the specific purpose intended will be at CITY'S sole risk and without liability or legal exposure to CONSULTANT. Section 14. Governing Law. CITY and CONSULTANT agree that the law governing this Agreement shall be that of the State of California. Section 15. Compliance With Laws. Consistent with its professional standard of care, CONSULTANT shall comply with all applicable laws, ordinances, codes and regulations of the federal, state, and local governments. Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 7 of 14 BASIC AGREEMENT Section 16. Confidential Information. All data, documents, discussions, or other information developed or received by or for CONSULTANT in performance of this Agreement are confidential and not to be disclosed to any person except as authorized by the CITY, or as required by law. Section 17. Ownership of Materials. All reports, documents, or other material developed or discovered by CONSULTANT or any other person engaged directly or indirectly by CONSULTANT to perform the services required hereunder shall be and remain the property of CITY to be used solely for this PROJECT. Hard copies of CONSULTANT'S instrtunents of service shall constitute the project deliverables. Electronic documents, if any, shall be provided as a courtesy only without any warranty or guarantee. The CITY holds CONSULTANT harmless for any reuse of or modification to the documents. Section 18. Waiver. The parties agree that a waiver by either party of any breach or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. The acceptance by CITY of the performance of any work or services by CONSULTANT shall not be deemed to be a waiver of any term or condition of this Agreement. Section 19. Consultant's Books and Records. A. CONSULTANT shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to CITY for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT pursuant to this Agreement. B. CONSULTANT shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 8 of 14 BASIC AGREEMENT any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Attorney, City Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to CITY for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at CONSULTANT'S address indicted for receipt of notice in this Agreement. D. Where CITY has reason to believe that such records or documents maybe lost or discarded due to dissolution, disbandment, or termination of CONSULTANT'S business, CITY may, by written request by any of the above-named officers, require that custody of the records be given to CITY and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by CONSULTANT, CONSULTANT'S representatives, or CONSULTANT'S successor-in-interest. Section 20. Interest of Consultant. CONSULTANT 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. CONSULTANT further covenants that, in the performance of this agreement, no sub consultant or person having such an interest shall be employed. CONSULTANT 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, CONSULTANT shall at all times be deemed an independent CONSULTANT and not an agent or employee of CITY. Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 9 of 14 BASIC AGREEMENT Section 21. Gifts. A. CONSULTANT is familiar with CITY'S prohibition against the acceptance of any gift by a CITY officer or designated employee, which prohibition is found in the City of Cupertino Administrative Procedures. B. CONSULTANT agrees not to offer any CITY officer or designated employee any gift prohibited by the Administrative Procedures. C. The offer or giving of any prohibited gift shall constitute a material breach of this Agreement by CONSULTANT. In addition to any other remedies, CITY may have in law or equity, CITY may terminate this Agreement for such breach as provided in Section 13 of this Agreement. Section 22. Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective parties as follows: To CITY: Terry W. Greene City Architect City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 408 777 3248 To CONSULTANT: Rachael Keish Project Manager HNTB Corporation 1735 Technology Drive, Suite 650 San Jose, Ca. 95110 408 451 7300 Notice shall be deemed effective on the data personally delivered or, if mailed, three (3) days after deposit in the mail. Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 10 of 14 BASIC AGREEMENT Section 23. Venue. In the event that suit shall be brought by either party hereunder, the parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara, or where otherwise appropriate, exclusively in the United States District Court for the Northern District of California, San Jose, California. Section 24. Agreement Bindin rior Agreements and Amendments. The terms, covenants, and conditions of this agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and sub consultants of both parties. This AGREEMENT, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This AGREEMENT may only be modified by a written amendment duly executed by the parties to this Agreement. Section 25. 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. Section 26. Electronic Transmission of Information. From time to time, the CONSULTANT may transmit design or other information to the CITY, CITY'S Representative, or Contractor via electronic transmission. The CITY, CITY'S Representative, or CONTRACTOR shall not be entitled to and hereby agrees not to alter or modify any such information without the express written consent of the CONSULTANT. Similarly, the CITY, CITY'S Representative, and Contractor shall not use any information for any purpose not expressly covered by this Agreement. The Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 11 of 14 BASIC AGREEMENT CONSULTANT shall not be responsible for any destruction or corruption of such information during or after transmission to CITY, CITY'S Representative, and Contractor and shall be entitled to appropriate additional compensation in the event retransmission or recreation is required. Notwithstanding the foregoing, the CONTRACTOR may use electronically transmitted information to prepare submittals and record drawings. CONSULTANT shall not be responsible for any changes made by the CONTRACTOR or for the CONTRACTOR'S instruments of service. Because data stored on electronic media can deteriorate undetected or be modified without CONSULTANT'S knowledge, CONSULTANT will not be held liable for the completeness or accuracy of the electronic data after the acceptance period. CONSULTANT does stand by the accuracy of the sealed drawings that accompany the electronic submittals. Section 27. Job Site Safety. In no event shall CONSULTANT be responsible for job site safety issues. Such issues shall be the responsibility of the Construction Contractors, who shall be required by CITY to defend, indemnify, and hold harmless CONSULTANT and CITY for such issues. Section 28. Dispute Resolution. In the event of a dispute between CITY and CONSULTANT arising out of or related to this Agreement, the aggrieved party shall notify the other party of the dispute within a reasonable time after such dispute arises. If the parties cannot thereafter resolve the dispute, each party shall nominate a senior officer of its management to meet to resolve the dispute by direct negotiation or mediation. Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 12 of 14 BASIC AGREEMENT Should such negotiation or mediation fail to resolve the dispute, either party may pursue resolution of the dispute by arbitration in accordance with the Construction Industry Arbitration Rules of the American arbitration association; provided, however, in the event the parties are unable to reach agreement to arbitrate under terms reasonably acceptable to both parties, either party may pursue resolution in any court having jurisdiction. During the pendency of any dispute, the parties shall continue diligently to fulfill their respective obligations hereunder. Section 29. Right to Rely upon Information CONSULTANT shall not be responsible for verifying or ensuring the accuracy of any information or content supplied by CITY or any other Project participant, nor ensuring that such information or content does not violate or infringe any law or other third party rights. CITY shall indemnify CONSULTANT for any infringement claims resulting from CONSULTANT' S use of such content, materials or documents. Section 30. Standard of Care The same degree of care, skill, and diligence shall be exercised by CONSULTANT in the performance of the Services as is ordinarily possessed and exercised by a member of the same profession, currently practicing, under similar circumstances. No other warranty, express or implied, is included in this Agreement or in any drawing, specification, report, opinion or other instrument of service, in any form or media, produced in connection with the Services. Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 Page 13 of 14 BASIC AGREEMENT WITNESS THE EXECUTION HEREOF on the day and year first herein above written. APPRO O FO qty Attorney NOTARY PUBLIC CERTIFICATION State of California County of AI,AMEQA~ On _d 5 /_m~/_y~Q(~, before me, Notary Public, personally appeared 5TE1/E 1~~K1T~K6~Z known to me (or pro me on basis of satisfa ry evi ce) to be the person~a'jwhose name ~ / subscribed to the within instrument and acknowledged to me that he /~ / th~executed the same in his / r / t~ capacity (i ,and that by his /~ it signature~n the instrument the person~r the entity upon behalf of which the person~,s~' acted, executed the instrument. WITNESS my hand and official seal. g ture of Notazy P lic Stevens Creek Corridor Park HNTB Basic Agreement 5.25.06 C OF CUPERTINO a u 'cipa~ rp at'o ~ ~f /~ By ~ date(p • C ' ©'~O City Manager, Dave Knapp Attest: ~fl~--- ~P ` 7"6~ City Clerk, Kimber mith 10300 Torre Avenue Cupertino, CA 95014 408 777 3223 CONSULTANT By: HNTB Corporation Date: `-~' ~3/ ~~ ~ .2006 Name: ~t-c~ (/~~ I ~ ~r Title: (~ Pas/ ~~-t 'f~"- 1735 Technology Drive, Suite 650 San Jose, CA 95110 408 4517300 I WEN C ~mmbsbn ~ ~/~~~ • Iw,fary PubpC - Cp~ptNo Alamedo County INY ~ omm. E~q~t fib 6. Zq Page 14 of 14 EXHIBIT A SCOPE OF WORK GENERAL CONSULTANT shall perform design, project, and construction management services related to schematic design, design development, construction documents, bidding, award, construction, and project closeout for the Stevens Creek Corridor Park, in the City of Cupertino, California. The CITY'S Department of Public Works shall have overall responsibility for the design and construction of this PROJECT and this AGREEMENT. CONSULTANT shall receive final direction from the CITY'S Director of Public Works or his authorized designee only. The CITY'S Director of Public Works shall resolve conflicting direction from other groups, departments or agencies. The performance of the services by CONSULTANT shall be to the satisfaction of the CITY, in accordance with the express terms hereof, including but not limited to the terms set out in detail in the individual Task Order scopes of service with the standard of care provisions contained therein. CONSULTANT shall designate a team of individuals to staff the PROJECT for its duration. CONSULTANT shall not substitute key team members without the prior approval of the CITY, which approval shall not be unreasonably withheld. All of the services to be performed by the CONSULTANT under this AGREEMENT from the inception of the AGREEMENT until termination of the AGREEMENT shall meet the professional standard and quality which prevails among construction management consultants of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. As is consistent with these standards, the documentation prepared by CONSULTANT shall provide for a completed PROJECT that conforms to all applicable codes, rules, regulations and guidelines or applicable official interpretation thereof, which are in force at the time such documentation is prepared. The CONSULTANT'S services shall be performed as expeditiously as is consistent with professional skill and care and the orderly process of the Stevens Creek Corridor Park HNTB Basic Agreement Exhibit A-1 EXHIBIT A SCOPE OF WORK work. The schedule for the performance of the CONSULTANT'S services maybe adjusted by mutual agreement, as the PROJECT proceeds. For the purpose of this AGREEMENT, direct written authorization or approval from CITY shall mean and require the signatures of the CITY'S Director of Public Works or his authorized designee. CONSULTANT shall coordinate individual Task Order scopes of service with CITY'S separate consultants and contractors, as needed or as directed, by CITY. The PROJECT AREA includes the McClellan Ranch Nature Preserve, Blackberry Farm, the Stocklmeir Orchard, and the Cupertino Golf Course. It is bounded on the north by Stevens Creek Blvd., on the south by McClellan Road, on the east by the Monte Vista residential area and on the west by various private residential developments. The overall PROJECT consists of a variety of sub projects, including but not limited to, approximately 2,6001ineal feet of creek restoration and realignment, a new 5,900 foot .long multipurpose trail with two pedestrian bridges, a reconfigured 800 person group picnic area with new restrooms and bank stabilization, a reconfigured pool enclosure, kiosk, snack bar, restrooms, and landscaping, a reconfigured tot lot, two new park and golf course maintenance buildings with their respective outdoor work yards, a new main parking lot with entry kiosk, a new trail head parking lot with restrooms, a reconfigured employee parking lot and landscaping at the existing conference center, a reconfigured entry drive with an adjoining pedestrian walkway, reconfigured animal storage pens and garden plots, a new 2,000 square foot environmental classroom, the dismantling and reconfiguration of an existing blacksmith shop, the demolition of agricultural well pumping stations, storage tanks, distribution lines and other appurtenances, and, reconfigured golf and park irrigation systems. The Site is owned primarily by the City of Cupertino. A small portion of the site is leased to the City but owned by the Santa Clara Valley Water District, which agency is contributing a portion Stevens Creek Corridor Park HNTB Basic Agreement Exhibit A-2 EXHIBIT A SCOPE OF WORK of the project budget and with whom the City has entered into an agreement to execute the creek restoration and realignment work stated above. TASK ORDERS CONSULTANT shall provide specific services to CITY as identified by TASK ORDER. TASK ORDERS shall be sequentially numbered, contain a description of the work, the method of payment, a list of deliverables, and a schedule for completion. Each TASK ORDER shall be signed in advance of the work, by the CONSULTANT, and then by the Director of Public Works or his designee. The sum of all TASK ORDERS shall not exceed the maximum amount authorized by this AGREEMENT. Stevens Creek Corridor Park HNTB Basic Agreement Exhibit A-3 EXHIBIT B SCHEDULE OF PERFORMANCE CONSULTANT'S services are contingent on the CITY'S assumptions of aggressive but reasonable design and construction durations for the Stevens Creek Corridor Park. CONSULTANT'S services began on April 19, 2006 and will continue through April 30, 2008, unless amended in writing and signed by both CONSULTANT and CITY in conformance with CITY'S service agreement procedures. Stevens Creek Corridor Park HNTB Basic Agreement Exhibit B-1 EXHIBIT C COMPENSATION CONSULTANT shall be compensated on a Time and Materials Basis, not to exceed a total of FOUR HUNDRED THOUSAND AND 00/100 DOLLARS ($400,000), in accordance with the rates set forth in Exhibit D of this AGREEMENT. Stevens Creek Corridor Park HNTB Basic Agreement Exhibit C - 1 Exhibit D Billing Rates and Reimbursable Expenses Billing rates for each active CONSULTANT team member shall be provided as an attachment to each Task Order, when CONSULTANT will perform a Task Order on a Time and Materials basis. CONSULTANT will be entitled to a 2% mark up on Sub Consultant services. Reimbursable expenses shall be limited in this Initial Agreement to $50,000 and shall include reproduction, travel, lodging, meals, and parking. Reimbursable expenses may be treated as a discrete Task Order or included as a part of each Task Order. Stevens Creek Corridor Park HNTB Basic Agreement Exhibit D - 1 FIRST AMENDMENT to PROFESSIONAL SERVICES AGREEMENT Between THE CITY OF CUPERTINO And HNTB CORPORATION V 3s'ZZ for the STEVENS CREEK CORRIDOR PARK PROJECT A CUPERTINO CAPITAL IMPROVEMENT PROGRAM PROJECT Contract No. 032316 y- ~~ .--_. Dated ~ to /4~0 HNTB First Amendment TABLE OF CONTENTS PAGE 1. DEFINITIONS ...................................................................................................................................................1 2. TERM OF AGREEMENT ................................................................................................................................1 3. SCHEDULE OF PERFORMANCE .................................................................................................................1 4. COMPENSATION ............................................................................................................................................1 5. METHOD OF PAYMENT ................................................................................................................................ i 6. INDEPENDENT CONTRACTOR ...................................................................................................................2 7. NO THIRD PARTY RIGHTS .......................................................................................................................... 2 8. PROJECT COORDINATION .........................................................................................................................2 9. ASSIGNABILITY /SUB CONSULTANTS /EMPLOYEES ........................................................................2 10. INDEMNIFICATION ..................................................................................................................................2 11. INSURANCE REQUIREMENTS ...............................................................................................................2 12. NONDISCRIMINATION .............................................................................................................................2 13. TERMINATION ...........................................................................................................................................2 14. GOVERNING LAW .....................................................................................................................................2 15. COMPLIANCE WITH LAWS ....................................................................................................................2 16. CONFIDENTIAL INFORMATION ...........................................................................................................2 17. OWNERSHIP OF MATERIALS ................................................................................................................2 18. WAIVER ........................................................................................................................................................2 19. CONSULTANT'S BOOKS AND RECORDS ............................................................................................2 20. INTEREST OF CONSULTANT .................................................................................................................2 21. GIFTS ............................................................................................................................................................2 22. NOTICES .......................................................................................................................................................3 23. VENUE ..........................................................................................................................................................3 24. AGREEMENT BINDING /PRIOR AGREEMENTS AND AMENDMENTS .......................................3 25. COSTS AND ATTORNEYS FEES .............................................................................................................3 26. ELECTRONIC TRANSMISSION OF INFORMATION .........................................................................3 HNTB First Amendment 1 27. JOB SITE SAFETY ......................................................................................................................................3 28. DISPUTE RESOLUTION ............................................................................................................................3 29. RIGHT TO RELY UPON INFORMATION ..............................................................................................3 30. STANDARD OF CARE ................................................................................................................................3 Scope of Work Exhibit A Schedule of Performance Compensation Billing Rates and Reimbursable Expenses Exhibit B Exhibit C Exhibit D HNTB First Amendment 11 THE CITY OF CUPERTINO FIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND HNTB CORPORATION THIS~RST AME ~T~TO THE PROFESSIONAL SERVICES AGREEMENT ("Ageement") is dated this ~_ day of ,.Lt~ , 2006, in the City of Cupertino, State of California, by and between HNTB Corporation, hereinafter referred to as ("CONSULTANT") and CITY OF CUPERTINO, hereinafter referred to as ("CITY"). Recitals WHEREAS, CITY and CONSULTANT desire to amend the AGREEMENT to modify the basic ageement, scope of services, and increase the total compensation; and WHEREAS, the CITY OF CUPERTINO desires to obtain professional consultant services for the Steven Creek Corridor Park Project, (hereinafter, PROJECT); and WHEREAS, City's rules and regulations authorize City to enter into ageements for professional temporary services; and WHEREAS, HNTB Corporation has the necessary professional expertise and skills to perform the professional services required, Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, stipulated and agreed, the parties agee as follows: 1. Definitions 1.1 Unchanged. See Basic Agreement. 2. Term of Agreement 2.1 Unchanged. See Basic Ageement 3. Schedule of Performance 3.1 See Basic Ageement and Exhibit B of this First Amendment. 4. Compensation 4.1 The compensation to be paid to CONSULTANT for professional services and reimbursable expenses shall not exceed FIVE HUNDRED FIFTY THOUSAND and 00/100 Dollars ($550,000). The rate and schedule of payment is set out in Exhibit C, entitled "Compensation", which is attached hereto and incorporated herein. 5. Method of Payment HNTB First Amendment 5.1 Unchanged. See Basic Agreement. 6. Independent Contractor 6.1 Unchanged. See Basic Agreement. 7. No Third Party Rights 7.1 Unchanged. See Basic Agreement. 8. Project Coordination 8.1 Unchanged. See Basic Agreement. 9. Assignability /Sub consultants /Employees 9.1 Unchanged. See Basic Agreement. 10. Indemnification 10.1 Unchanged. See Basic Agreement. 11. Insurance Requirements 11.1 Unchanged. See Basic Agreement. 12. Nondiscrimination 12.1 Unchanged. See Basic Agreement. 13. Termination 13.1 Unchanged. See Basic Agreement. 14. Governing Law 14.1 Unchanged. See Basic Agreement. 15. Compliance With Laws 15.1 Unchanged. See Basic Agreement. 16. Confidential Information 16.1 Unchanged. See Basic Agreement. 17. Ownership of Materials 17.1 Unchanged. See Basic Agreement. 18. Waiver 18.1 Unchanged. See Basic Agreement. 19. Consultant's Boolcs and Records 19.1 Unchanged. See Basic Agreement. 20. Interest of Consultant 20.1 Unchanged. See Basic Agreement. 21. Gifts 21.1 Unchanged. See Basic Agreement. HNTB First Amendment 2 22. Notices 22.1 Unchanged. See Basic Agreement. 23. Venue 23.1 Unchanged. See Basic Agreement. 24. Agreement Binding /Prior Agreements and Amendments 24.1 Unchanged. See Basic Agreement. 25. Costs and Attorneys Fees 25.1 Unchanged. See Basic Agreement. 26. Electronic Transmission of Information 26.1 Unchanged. See Basic Agreement. 27. Job Site Safety 27.1 Unchanged. See Basic Agreement. 28. Dispute Resolution 28.1 Unchanged. See Basic Agreement. 29. Right to Rely upon Information 29.1 Unchanged. See Basic Agreement. 30. Standard of Care 30.1 Unchanged. See Basic Agreement. HNTB First Amendment 3 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment the day first mentioned above. "City" CITY CUPE TINO, By: C~ David W. Knapp, City a ger Attest: 't..I vt.t~ Jerk Kimberley Smith, Crty C "Consultant" HNTB CORPORATION 1735 Technology Drive, Suite 600 San Jose, CA 95110 408 451 7300 By: Date: C l3v O(p Name: --'Y-~t1~ C~~ i 1~ ~t'r- Title: U • ~. Approved as to form and legality this 2 S day of /~k~ , 2006. G~ Charles Kilian, City Ee~set• /~2T-TaR/~'~ City Resolution No. 06-145 All of the terms and conditions of the original AGREEMENT, not modified by this First Amendment, shall remain in full force and effect. THIS AGREEMENT SHALL NOT BE VALID OR EFFECTIVE FOR ANY PURPOSE UNLESS AND UNTIL SIGNED BY THE CITY MANAGER ON BEHALF OF THE CITY COUNCIL. HNTB First Amendment 4 EXHIBIT A FIRST AMENDMENT SCOPE OF WORK of the project budget and with whom the City has entered into an agreement to execute the creek restoration and realignment work stated above. TASK ORDERS CONSULTANT shall provide specific services to CITY as identified by TASK ORDER. TASK ORDERS shall be sequentially numbered, contain a description of the work, the method of payment, a list of deliverables, and a schedule for completion. Each TASK ORDER shall be signed in advance of the work, by the CONSULTANT, and then by the Director of Public Works or his designee. The sum of all TASK ORDERS shall not exceed the maximum amount authorized by this AGREEMENT. Unused portions of TASK ORDERS fees shall be redirected, as deemed necessary by the CITY, towards other existing or new TASK ORDERS. Stevens Creek Corridor Park HNTB Exhibit A-3 EXHIBIT A FIRST AMENDMENT SCOPE OF WORK work. The schedule for the performance of the CONSULTANT'S services may be adjusted by mutual agreement, as the PROJECT proceeds. For the purpose of this AGREEMENT, direct written authorization or approval from CITY shall mean and require the signatures of the CITY' S Director of Public Works or his authorized designee. CONSULTANT shall coordinate individual Task Order scopes of service with CITY'S separate consultants and contractors, as needed or as directed, by CITY. The PROJECT AREA includes the McClellan Ranch Nature Preserve, Blackberry Farm, the Cupertino Golf Course. It is bounded on the north by Stevens Creek Blvd., on the south by McClellan Road, on the east by the Monte Vista residential area and on the west by various private residential developments. The overall PROJECT consists of a variety of sub projects, including but not limited to, approximately 2,6001ineal feet of creek restoration, creek realignment, a new in-stream water diversion to golf course ponds, and creek bank stabilization; a new 2,800 foot long multipurpose trail with a 4-H facility separation fence and reconfigured animal storage pens; a reconfigured 800-person group picnic area with one new bridge, a reconfigured existing bridge, and a reconfigured restroom facility; anew entry kiosk with a gateway feature; a reconfigured pool fence enclosure and landscaped entry; a reconfigured tot lot area with anew'/2 basket ball court; a new golf course maintenance building with outdoor covered work area and golf course restroom; a new main parking lot; a new environmental classroom; the possible demolition of agricultural well pumping stations, storage tanks, distribution lines, restrooms, maintenance sheds and other picnic area appurtenances. The Site is owned primarily by the City of Cupertino. A small portion of the site is leased to the City but owned by the Santa Clara Valley Water District, which agency is contributing a portion Stevens Creek Corridor Park HNTB Exhibit A-2 EXHIBIT A FIRST AMENDMENT SCOPE OF WORK GENERAL CONSULTANT shall perform design, project, and construction management services related to schematic design, design development, construction documents, bidding, award, construction, and project closeout for the Stevens Creek Corridor Park, in the City of Cupertino, California. The CITY'S Department of Public Works shall have overall responsibility for the design and construction of this PROJECT and this AGREEMENT. CONSULTANT shall receive final direction from the CITY' S Director of Public Works or his authorized designee only. The CITY' S Director of Public Works shall resolve conflicting direction from other groups, departments or agencies. The performance of the services by CONSULTANT shall be to the satisfaction of the CITY, in accordance with the express terms hereof, including but not limited to the terms set out in detail in the individual Task Order scopes of service with the standard of care provisions contained therein. CONSULTANT shall designate a team of individuals to staff the PROJECT for its duration. CONSULTANT shall not substitute key team members without the prior approval of the CITY, which approval shall not be unreasonably withheld. All of the services to be performed by the CONSULTANT under this AGREEMENT from the inception of the AGREEMENT until termination of the AGREEMENT shall meet the professional standard and quality which prevails among construction management consultants of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. As is consistent with these standards, the documentation prepared by CONSULTANT shall provide for a completed PROJECT that conforms to all applicable codes, rules, regulations and guidelines or applicable official interpretation thereof, which are in force at the time such documentation is prepared. The CONSULTANT'S services shall be performed as expeditiously as is consistent with professional skill and care and the orderly process of the Stevens Creek Corridor Park HNTB Exhibit A-1 EXHIBIT B FIRST AMENDMENT SCHEDULE OF PERFORMANCE CONSULTANT'S services are contingent on the CITY' S assumptions of aggressive but reasonable design and construction durations for the Stevens Creek Corridor Park. CONSULTANT'S services began on April 19, 2006 and will continue through April 30, 2008, unless amended in writing and signed by both CONSULTANT and CITY in conformance with CITY' S service agreement procedures. Stevens Creek Corridor Park HNTB Basic Agreement Exhibit B-1 EXHIBIT C FIRST AMENDMENT COMPENSATION CONSULTANT shall be compensated on a Time and Materials Basis, not to exceed a total of FIVE HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($550,000), in accordance with the rates set forth in Exhibit D of this AGREEMENT. Stevens Creek Corridor Park HNTB Basic Agreement Exhibit C - 1 Exhibit D First Amendment Billing Rates and Reimbursable_Expenses Billing rates for each active CONSULTANT team member shall be provided as an attachment to each Task Order, when CONSULTANT will perform a Task Order on a Time and Materials basis. CONSULTANT will be entitled to an annual 2% mark up on Sub Consultant services beginning from the date of execution of the Basic Agreement. Reimbursable expenses shall be limited in this Initial Agreement to $50,000 and shall include reproduction, travel, lodging, meals, and parking. Reimbursable expenses may be treated as a discrete Task Order or included as a part of each Task Order. Stevens Creek Corridor Park HNTB Basic Agreement Exhibit D - 1 SECOND AMENDMENT to PROFESSIONAL SERVICES AGREEMENT Between THE CITY OF CUPERTINO And HNTB CORPORATION for the STEVENS CREEK CORRIDOR PARK PROJECT A CUPERTINO CAPITAL IMPROVEMENT PROGRAM PROJECT Contract No. 032316 Dated HNTB Second Amendment TABLE OF CONTENTS PAGE 1. DEFINITIONS ........................................................................................................................................................1 2. TERM OF AGREEMENT .....................................................................................................................................1 3. SCHEDULE OF PERFORMANCE .......................................................................................................................1 4. COMPENSATION ..................................................................................................................................................1 5. METHOD OF PAYMENT .....................................................................................................................................1 6. INDEPENDENT CONTRACTOR .........................................................................................................................2 7. NO THIRD PARTY RIGHTS ................................................................................................................................2 8. PROJECT COORDINATION ................................................................................................................................2 9. ASSIGNABILITY /SUB CONSULTANTS /EMPLOYEES ..............................................................................2 10. INDEMNIFICATION ........................................................................................... ................................................2 11. INSURANCE REQUIREMENTS ........................................................................ ................................................2 12. NONDISCRIMINATION ..................................................................................... ................................................2 13. TERMINATION .................................................................................................... ................................................2 14. GOVERNING LAW .............................................................................................. ................................................2 15. COMPLIANCE WITH LAWS ............................................................................. ................................................2 16. CONFIDENTIAL INFORMATION ................................................................... ................................................2 17.OWNERSHIP OF MATERIALS ........................................................................ ................................................2 18. WAIVER ................................................................................................................ ................................................2 19. CONSULTANT'S BOOKS AND RECORDS ..................................................... ................................................2 20. INTEREST OF CONSULTANT .......................................................................... ................................................2 21. GIFTS ..................................................................................................................... ................................................2 22. NOTICES ............................................................................................................... ................................................3 23. VENUE ................................................................................................................... ................................................3 24. AGREEMENT BINDING /PRIOR AGREEMENTS AND AMENDMENTS ................................................3 25. COSTS AND ATTORNEYS FEES ...................................................................... ................................................3 26. ELECTRONIC TRANSMISSION OF INFORMATION .................................. ................................................3 HNTB Second Amendment 1 27. JOB SITE SAFETY ...............................................................................................................................................3 28. DISPUTE RESOLUTION .............................................................................. 29. RIGIIT TO RELY UPON INFORMATION .......................................................................................................3 30. STANDARD OF CARE ........................................................................................................................................3 Scope of Work Schedule of Performance Compensation Billing Rates and Reimbursable Expenses Exhibit A Exhibit B Exhibit C Exhibit D HNTB Second Amendment 11 THE CITY OF CUPERTINO SECOND AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND HNTB CORPORATION THIS SECOND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT ("Agreement") is dated this ~~ day of -~t~N~~ , 2007, in the City of Cupertino, State of California, by and between HNTB Corporation, hereinafter referred to as ("CONSULTANT") and CITY OF CUPERTINO, hereinafter referred to as ("CITY"). Recitals WHEREAS, CITY and CONSULTANT desire to amend the AGREEMENT to modify the basic agreement, scope of services, and increase the total compensation; and WHEREAS, the CITY OF CUPERTINO desires to obtain professional consultant services for the Stevens Creek Corridor Park Project, (hereinafter, PROJECT); and WHEREAS, City's rules and regulations authorize City to enter into agreements for professional temporary services; and WHEREAS, HNTB Corporation has the necessary professional expertise and skills to perform the professional services required, Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, stipulated and agreed, the parties agree as follows: 1. Definitions 1.2 Unchanged. See Basic Agreement. 2. Term of Agreement 2.2 The term of this AGREEMENT shall be retroactive from April 19, 2006, and continue through December 31, 2009, inclusive, subject to the provisions of Exhibit A, of this AGREEMENT. In the event that the services called for under this AGREEMENT are not completed within the time specified above, the City Manager may extend the time for completion. This section does not preclude the recovery of damages for delay by either party. 3. Schedule of Performance 3.2 See Basic Agreement, Exhibit B of the First Amendment, and Exhibit B-2 of this Second Amendment. 4. Compensation 4.2 The compensation to be paid to CONSULTANT for professional services and reimbursable expenses shall not exceed a new contract total of ONE MILLION FIVE HUNDRED SEVENTY FIVE THOUSAND and HNTB Second Amendment 00/100 Dollars ($1,575,000). The rate and schedule of payment is set out in Exhibit C, entitled "Compensation", which is attached hereto and incorporated herein. 5. Method of Payment 5.2 Unchanged. See Basic Agreement. 6. Independent Contractor 6.2 Unchanged. See Basic Agreement. 7. No Third Party Rights 7.2 Unchanged. See Basic Agreement. 8. Project Coordination 8.2 CITY: The City Manager shall be representative of CITY for all purposes under this agreement. Therese Smith, Director of Parks and Recreation, is hereby designated as City Manager's representative, and shall supervise the progress and execution of this agreement. Gail Seeds is hereby designated as the CITY PROJECT MANAGER and will handle ongoing implementation and activities on behalf of CITY. CONSULTANT: CONSULTANT shall assign a single CONSULTANT PROJECT MANAGER to have overall responsibility for the progress and execution of this agreement for CONSULTANT. Rachael Keish is hereby designated as the PROJECT MANAGER for CONSULTANT. Should circumstances or conditions subsequent to the execution of this agreement require a substitute CONSULTANT PROJECT MANAGER for any reason, the CONSULTANT PROJECT MANAGER designee shall be subject to the prior written acceptance and approval of the CITY PROJECT MANAGER. 9. Assignability /Sub consultants /Employees 9.2 Unchanged. See Basic Agreement. 10. Indemnification 10.2 Unchanged. See Basic Agreement. 11. Insurance Requirements 11.2 Unchanged. See Basic Agreement. 12. Nondiscrimination 12.2 Unchanged. See Basic Agreement. 13. Termination 13.2 Unchanged. See Basic Agreement. 14. Governing Law 14.2 Unchanged. See Basic Agreement. 15. Compliance With Laws 15.2 Unchanged. See Basic Agreement. 16. Confidential Information 16.2 Unchanged. See Basic Agreement. 17. Ownership of Materials 17.2 Unchanged. See Basic Agreement. HNTB Second Amendment 2 18. Waiver 18.2 Unchanged. See Basic Agreement. 19. Consultant's Books and Records 19.2 Unchanged. See Basic Agreement. 20. Interest of Consultant 20.2 Unchanged. See Basic Agreement. 21. Gifts 21.2 Unchanged. See Basic Agreement. 22. Notices 22.2 All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective parties as follows: To CITY: Parks and Recreation Department City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 408 777 3110 Attn.: T. Smith/ G. Seeds To CONSULTANT: Rachael Keish, Project Manager HNTB Corporation 1735 Technology Drive, Suite 650 San Jose, Ca. 95110 408 451 7300 23. Venue 23.2 Unchanged. See Basic Agreement. 24. Agreement Binding /Prior Agreements and Amendments 24.2 Unchanged. See Basic Agreement. 25. Costs and Attorneys Fees 25.2 Unchanged. See Basic Agreement. 26. Electronic Transmission of Information 26.2 Unchanged. See Basic Agreement. 27. Job Site Safety 27.2 Unchanged. See Basic Agreement. 28. Dispute Resolution 28.2 Unchanged. See Basic Agreement. 29. Right to Rely upon Information 29.2 Unchanged. See Basic Agreement. 30. Standard of Care 30.2 Unchanged. See Basic Agreement. HNTB Second Amendment 3 1N WITNESS WHEREOF, the parties hereto have executed this Second Amendment the day first mentioned above. "City" CITY OF CUPERTINO, By: ~ G . /2, ~~ David W. Knapp, i Manager ~/ ~ r Attest: ,`V~if/1,l'//~',U/!p/J Kimberley Smith, City Clerk "Consultant" HNTB CORPORATION 1735 Technology Drive, Suite 600 San Jose, CA 95110 408 451 7300 _, J - By: Date: ~ ~ d Name: Steve Whitaker Title: Vice President Approved as form and lega ' 's day of , 2007. es Kilian, i Attorney City Resolution No. 06-174 All of the terms and conditions of the original AGREEMENT and the First Amendment, not modified by this Second Amendment, shall remain in full force and effect. THIS AGREEMENT SHALL NOT BE VALID OR EFFECTIVE FOR ANY PURPOSE UNLESS AND UNTIL SIGNED BY THE CITY MANAGER ON BEHALF OF THE CITY COUNCIL. HNTB Second Amendment 4 EXHIBIT A SECOND AMENDMENT SCOPE OF WORK GENERAL CONSULTANT shall perform design, project, and construction management services related to schematic design, design development, construction documents, bidding, award, construction, and project closeout for the Stevens Creek Corridor Park, in the City of Cupertino, California. The CITY'S Department of Parks and Recreation shall have overall responsibility for the design and construction of this PROJECT and this AGREEMENT. CONSULTANT shall receive final direction from the CITY' S Director of Parks and Recreation or her authorized designee only. The CITY'S Director of Parks and Recreation shall resolve conflicting direction from other groups, departments or agencies. The performance of the services by CONSULTANT shall be to the satisfaction of the CITY, in accordance with the express terms hereof, including but not limited to the terms set out in detail in the individual Task Order scopes of service with the standard of care provisions contained therein. CONSULTANT shall designate a team of individuals to staff the PROJECT for its duration. CONSULTANT shall not substitute key team members without the prior approval of the CITY, which approval shall not be unreasonably withheld. All of the services to be performed by the CONSULTANT under this AGREEMENT from the inception of the AGREEMENT until termination of the AGREEMENT shall meet the professional standard and quality which prevails among construction management consultants of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. As is consistent with these standards, the documentation prepared by CONSULTANT shall provide for a completed PROJECT that conforms to all applicable codes, rules, regulations and guidelines or applicable official interpretation thereof, which are in force at the time such documentation is prepared. The CONSULTANT'S services shall be performed as expeditiously as is consistent with professional skill and care and the orderly process of the Stevens Creek Corridor Park HNTB Exhibit A-1 [~ EXHIBIT A SECOND AMENDMENT SCOPE OF WORK work. The schedule for the performance of the CONSULTANT'S services may be adjusted by mutual agreement, as the PROJECT proceeds. For the purpose of this AGREEMENT, direct written authorization or approval from CITY shall mean and require the signatures of the CITY'S Director of Parks and Recreation or her authorized designee. CONSULTANT shall coordinate individual Task Order scopes of service with CITY'S separate consultants and contractors, as needed or as directed, by CITY. The PROJECT AREA includes the McClellan Ranch Nature Preserve, Blackberry Farm, the Cupertino Golf Course. It is bounded on the north by Stevens Creek Blvd., on the south by McClellan Road, on the east by the Monte Vista residential area and on the west by various private residential developments. The overall PROJECT consists of a variety of sub projects, including but not limited to, approximately 2,6001ineal feet of creek restoration, creek realignment, a new in-stream water diversion to golf course ponds, and creek bank stabilization; a new 2,800 foot long multipurpose trail with a 4-H facility separation fence and reconfigured animal storage pens; a reconfigured 800-person group picnic area with one new bridge, a reconfigured existing bridge, and a reconfigured restroom facility; anew entry kiosk with a gateway feature; a reconfigured pool fence enclosure and landscaped entry; a reconfigured tot lot area with anew %2 basket ball court; a new golf course maintenance building with outdoor covered work area and golf course restroom; a new main parking lot; a new environmental classroom; the possible demolition of agricultural well pumping stations, storage tanks, distribution lines, restrooms, maintenance sheds and other picnic area appurtenances. The Site is owned primarily by the City of Cupertino. A small portion of the site is leased to the City but owned by the Santa Clara Valley Water District, which agency is contributing a portion Stevens Creek Corridor Park HNTB Exhibit A-2f~ EXHIBIT A SECOND AMENDMENT SCOPE OF WORK of the project budget and with whom the City has entered into an agreement to execute the creek restoration and realignment work stated above. TASK ORDERS CONSULTANT shall provide specific services to CITY as identified by TASK ORDER. TASK ORDERS shall be sequentially numbered, contain a description of the work, the method of payment, a list of deliverables, and a schedule for completion. Each TASK ORDER shall be signed in advance of the work, by the CONSULTANT, and then by the Director of Parks and Recreation or her designee. The sum of all TASK ORDERS shall not exceed the maximum amount authorized by this AGREEMENT. Unused portions of TASK ORDERS fees shall be redirected, as deemed necessary by the CITY, towards other existing or new TASK ORDERS. Stevens Creek Corridor Park HNTB Exhibit A-3u EXHIBIT B SECOND AMENDMENT SCHEDULE OF PERFORMANCE CONSULTANT'S services are contingent on the CITY'S assumptions of aggressive but reasonable design and construction durations for the Stevens Creek Corridor Park. CONSULTANT'S services began on April 19, 2006 and will continue through October 30, 2009, unless amended in writing and signed by both CONSULTANT and CITY in conformance with CITY'S service agreement procedures. Stevens Creek Corridor Park HNTB Basic Agreement Exhibit B-1 ^ EXHIBIT C SECOND AMENDMENT COMPENSATION CONSULTANT shall be compensated on a Time and Materials Basis, not to exceed a total of ONE MILLION FIVE HUNDRED SEVENTY FIVE THOUSAND AND 00/100 DOLLARS ($1,575,000), in accordance with the rates set forth in Exhibit D of this AGREEMENT. Stevens Creek Corridor Park HNTB Basic Agreement Exhibit C - 1 ^ Exhibit D SECOND AMENDMENT Billing Rates and Reimbursable Expenses Billing rates for each active CONSULTANT team member shall be provided as an attachment to each Task Order, when CONSULTANT will perform a Task Order on a Time and Materials basis. CONSULTANT will be entitled to an annual 2% mark up on Sub Consultant services beginning from the date of execution of the Basic Agreement. Reimbursable expenses shall be limited to $50,000 until otherwise authorized by CITY in writing, and shall include reproduction, travel, lodging, meals, and parking. Reimbursable expenses may be treated as a discrete Task Order or included as a part of each Task Order. Stevens Creek Corridor Park H NTB Basic Agreement Exhibit D - 1 ^ THIRD AMENDMENT to PROFESSIONAL SERVICES AGREEMENT Between THE CITY OF CUPERTINO And HNTB CORPORATION for the STEVENS CREEK CORRIDOR PARK PROJECT A CUPERTINO CAPITAL IMPROVEMENT PROGRAM PROJECT Contract No. 032316 Dated l~ 0 HNTB Third Amendment TABLE OF CONTENTS PAGE 1. DEFINITIONS ....................................................................................................................................................... .1 2. TERM OF AGREEMENT ................................................................................................................................... .1 3. SCHEDULE OF PERFORMANCE ..................................................................................................................... .1 4. COMPENSATION ................................................................................................................................................. .1 5. METHOD OF PAYMENT .................................................................................................................................... .1 6. INDEPENDENT CONTRACTOR ....................................................................................................................... .1 7. NO THIRD PARTY RIGHTS ............................................................................................................................... .2 8. PROJECT COORDINATION .............................................................................................................................. .2 9. ASSIGNABILITY /SUB CONSULTANTS /EMPLOYEES ............................................................................. .2 10. INDEMNIFICATION ........................................................................................................................................... 2 11. INSURANCE REQUIREMENTS ........................................................................................................................2 12. NONDISCRIIVIINATION .....................................................................................................................................2 13. TERMINATION ................................................................................................................................................... 2 14. GOVERNING LAW .............................................................................................................................................2 15. COMPLIANCE WITH LAWS ............................................................................................................................ 2 16. CONFIDENTIAL INFORMATION .................................................................................................................. 2 17.OWNERSHIP OF MATERIALS ................................................................ 2 ........................................................ 18. WAIVER ................................................................................................................................................................ 2 19. CONSULTANT'S BOOKS AND RECORDS ..................................................................................................... 2 20. INTEREST OF CONSULTANT .......................................................................................................................... 2 21. GIFTS ..................................................................................................................................................................... 2 22. NOTICE$ ............................................................................................................................................................... 3 23. VENUE ................................................................................................................................................................... 3 24. AGREEMENT BINDING /PRIOR AGREEMENTS AND AMENDMENTS ................................................ 3 25. COSTS AND ATTORNEYS FEES ...................................................................................................................... 3 26. ELECTRONIC TRANSMISSION OF INFORMATION ................................................................................. 3 i 27. JOB SITE SAFETY .............................................................................................................................................. 3 28. DISPUTE RESOLUTION ....................................................................................................................................3 29. RIGHT TO RELY UPON INFORMATION ......................................................................................................3 30. STANDARD OF CARE ........................................................................................................................................3 Scope of Work Exhibit A Schedule of Performance Exhibit B Compensation Exhibit C Billing Rates and Reimbursable Expenses Exhibit D THE CITY OF CUPERTINO THIRD AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND HNTB CORPORATION THIS THIRD AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT ("Agreement") is dated this day of , 2008, in the City of Cupertino, State of California, by and between HNTB Corporation, hereinafter referred to as ("CONSULTANT") and CITY OF CUPERTINO, hereinafter referred to as ("CITY"). Recitals WHEREAS, CITY and CONSULTANT desire to amend the AGREEMENT to modify the basic agreement, scope of services, and increase the total compensation; and WHEREAS, the CITY OF CUPERTINO desires to obtain professional consultant services for the Steven Creek Corridor Park Project, (hereinafter, PROJECT); and WHEREAS, City's rules and regulations authorize City to enter into agreements for professional temporary services; and WHEREAS, HNTB Corporation has the necessary professional expertise and skills to perform the professional services required, Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, stipulated and agreed, the parties agree as follows: 1. Definitions 1.3 Unchanged. See Basic Agreement. 2. Term of Agreement 2.3 Unchanged. See Second Amendment. 3. Schedule of Performance 3.3 See Basic Agreement, and Exhibit B of the First Amendment and the Second Amendment. 4. Compensation 4.3 The compensation to be paid to CONSULTANT for professional services and reimbursable expenses shall not exceed TWO MILLION THIRTY SEVEN THOUSAND and 00/]00 Dollars ($2,037,000). The rate and schedule of payment is set out in Exhibit C, entitled "Compensation", which is attached hereto and incorporated herein. 5. Method of Payment 5.3 Unchanged. See Basic Agreement. 6. Independent Contractor 6.3 Unchanged. See Basic Agreement. 7. No Third Party Rights 7.3 Unchanged. See Basic Agreement. 8. Project Coordination 8.3 Unchanged. See Second Amendment. 9. Assignability /Sub consultants /Employees 9.3 Unchanged. See Basic Agreement. 10. Indemnification 10.3 Unchanged. See Basic Agreement. 11. Insurance Requirements 11.3 Unchanged. See Basic Agreement. 12. Nondiscrimination 12.3 Unchanged. See Basic Agreement. 13. Termination 13.3 Unchanged. See Basic Agreement. 14. Governing Law 14.3 Unchanged. See Basic Agreement. 15. Compliance With Laws 15.3 Unchanged. See Basic Agreement. 16. Confidential Information 16.3 Unchanged. See Basic Agreement. 17. Ownership of Materials 2 17.3 Unchanged. See Basic Agreement. 18. Waiver 18.3 Unchanged. See Basic Agreement. 19. Consultant's Books and Records 19.3 Unchanged. See Basic Agreement. 20. Interest of Consultant 20.3 Unchanged. See Basic Agreement. 21. Gifts 21.3 Unchanged. See Basic Agreement. 22. Notices 22.3 Unchanged. See Basic Agreement. 23. Venue 23.3 Unchanged. See Basic Agreement. 24. Agreement Binding /Prior Agreements and Amendments 24.3 Unchanged. See Basic Agreement. 25. Costs and Attorneys Fees 25.3 Unchanged. See Basic Agreement. 26. Electronic Transmission of Information 26.3 Unchanged. See Basic Agreement. 27. Job Site Safety 27.3 Unchanged. See Basic Agreement. 28. Dispute Resolution 28.3 Unchanged. See Basic Agreement. 29. Right to Rely upon Information 29.3 Unchanged. See Basic Agreement. 30. Standard of Care 30.3 Unchanged. See Basic Agreement. 3 IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment the day first mentioned above. "City" CITY OF CUP RTINO, By: ~ . Zr3.O~ David W. Knapp, Ci anager Attest: c,.~, ~, c f_~.~ Kimberley Smith, it Clerk "Consultant" HNTB CORPORATION 1735 Technology Drive, Suite 600 San Jose, CA 95110 408 451 7300 By: Date: Z 3 ~ S Name: Steve Whitaker Title: Vice President as orm and le ' y yes o~ 6 day of ,~ ~ r, ~ , 2008. Charles Kilian, City Atto ey City Resolution No. 08-034 All of the terms and conditions of the original AGREEMENT and the First and Second Amendments, not modified by this Third Amendment, shall remain in full force and effect. THIS AGREEMENT SHALL NOT BE VALID OR EFFECTIVE FOR ANY PURPOSE UNLESS AND UNTIL SIGNED BY THE CITY MANAGER ON BEHALF OF THE CITY COUNCIL. HNTB Third Amendment 4^ EXHIBIT A-3 THIRD AMENDMENT SCOPE OF WORK Modify the first paragraph of Exhibit A, Amendment 1, to read as follows: CONSULTANT shall perform design, project, and construction administration services related to schematic design, design development, construction documents, bidding, award, construction and project closeout for the Stevens Creek Corridor Park, in the City of Cupertino, California. Modify the Eighth Paragraph of Exhibit A, Amendment 1, to read as follows: "The overall PROJECT consists of a variety of sub projects, including but not limited to, approximately 2,2251ineal feet of creek restoration, creek realignment, abandonment of the in- stream water diversion to golf course ponds, and creek bank stabilization; a new 3,500 foot long multipurpose trail from McClellan Road to the Blackberry Farm Golf Course limit with a 4-H facility separation fence and reconfigured animal pens; a bus duckout on McClellan Road and a sidewalk/trail spur to the duckout from the McClellan Ranch entry and trail terminus; a reconfigured 800-person group picnic area at Blackberry Farm with one new bridge; a new entry kiosk; an entry area and gateway feature with orchard, seating, trellises, decorative paving and other amenities; a reconfigured pool fence enclosure and landscaped pool entry; a renovated snack bar entry area; reconfigured tot lot area; a new golf course maintenance building with golf and staff restrooms and bid alternate solar panel system, fenced outdoor uncovered work storage area and covered storage bins and covered equipment washoff area; a new reconstructed main parking lot including year-round all-weather parking and seasonal meadow turf parking; and the demolition of various features including utility and pumping infrastructure, storage tanks, distribution lines, maintenance sheds and other picnic area appurtenances." Stevens Creek Corridor Park HNTB Third Amendment Exhibit A-3 EXHIBIT C-3 THIRD AMENDMENT COMPENSATION CONSULTANT shall be compensated on a time and materials basis, and by a not-to- exceed fee per each task, for snot-to-exceed a total of Two Million Thirty Seven Thousand and 00/100 Dollars ($2,037,000), inclusive of an allowance of One Hundred Thousand One Hundred Fifty and 00/100 Dollars ($100,150), in accordance with the rates set forth in Exhibit D of this AGREEMENT. Stevens Creek Corridor Park HNTB Third Amendment Exhibit C-3