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13-071 David J. Powers & Associates, Consultant services for 10121 N Foothill Residences - Foothill Blvd Live/Work UnitsFebruary 20, 2014 OFFICE OF THE CIT'( CLERK CITY HALL 10300 TORRE AVE14UE • CUPERTINO, CA 95014 -3255 TELEPHONE: (408) 777 -3223 • FAX: (408) 777 -3366 WEBSITE: www.cupertino.org Re: Second Amendment to agreement for contract services. A fully executed copy of the agreement for consultant services with the City of Cupertino is enclosed. If you have any quE'stions or need additional information, please contact the Community Development Department at (408) 777 -3308. Sincerely, Andrea Sanders Senior Office Assistant Enclosure cc: Community Development SECOND AMENDMENT AGREEMENT BETWEEN THE CITY OF CUPERTINO AND OThis POWERS & ASSOCIATES FOR CONSULTANT SERVICES FOR 10121 N FOOTHILL RESIDENCES - FOOTHILL BLVD LIVE /WORK FXst AmZndment to the Agreement between the City of Cupertino and David I Powers & Associates for reference dated December 16, 2013, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "CITY ") and David l Powers & Associates a California corporation, whose address is (l.lereinafter "CONTRACTOR "), and is made with reference to the following: RECITALS: A. On December 16, 2013, an agreement was entered into by and between City and David I Powers & Associates (hereinafter "Agreement "). B. City and David. j Powers & Associates desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. TERM: The term section of the Agreement shall remain the same and shall be in full force and effect. 2. SERVICES TO BE PERFORMED: Additional services to be performed include the additional scope of work described in Exhibit A. 3. COMPENSATION: The Compensation section of the Agreement shall be increased by this amendment in the amount not to exceed `,33,160.00, for a total contract amount not to exceed $40,378. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect: Page 1 of 2 Second Amendment, David JPowers & Associates, Foothill Live /Work Project, 2 -10 -14 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. By Smyi 1 L Title���(� I 1 Date EXPENDITURE DISTRIBUTION CITY OF CUPERTINO A Municipal Corporation By i �v Gar�C - City Planner Date 41, D (,' APP OVED AS TO FORM: By ( 'LVAL4 �� Carol Korade, City Attorne ATTEST: By�`�. 01, Grace Schmidt, City Clerk ACCOUNT NUMBER AMOUNT PO #00058055 Original Contract: 110 -2211, BS 19446 $37,218.00 Amendment #1 (date change only) $0.00 Amendment #2:110-2211, BS 22639 $3,160.00 Total: $40,378.00 Page 2 of 2 ;17A f, 1// 4, Second Amendment, David J Powers & Associates, Foothill Live /Work Project, 2 -10 -14 Exhibit A � DAVID J. POWERS o 'a a Im r815 ��o;1 �nY January 29,2014 tK George Schroeder, Associate Planner 'L City of Cupertino, Community Development Department 10300 Torre Avenue r Cupertino, CA 95014 RE: 10121. N. Foothill Boulevard Live /Work Project — Contract Amendment 1 Sent via email: GeoregeS Qy �cupertino.orrr Dear Mr. Schroeder: I am writing this letter to request an amendment to our existing contract for the 1.0121 North Foothill Boulevard Live /Work project. We are submitting this contract amendment request to update the Initial Study to reflect the�analysis in the recent hazardous materials report by ERM (ERM, Site Assessment Results, January 23, 2014), reprint the Initial Study for public circulation (including submittal to the State Clearinghouse), revise the draft Mitigation Monitoring and Reporting Program (MMRP) accordingly, and attend the Environmental Review Committee (ERC) meeting for the project. These additional tastes were not anticipated or included in our original scope of work. On January 9, 2014, DJP &A finalized the Initial Study and provided copies to the City for public distribution. The Initial Study included mitigatior, measures to fitrther characterize the hazardous materials conditions on -site and remediate any contamination found appropriately. Subsequent to the completion of the Initial Study, the applicant's hazardous materials consultant (ERM) completed an investigation to fiu ther characterize conditions on -site (ERM, Site Assessment Results, January 23, 2014) and submitted this report to the City. Given that there is additional data and clarification about the hazardous materials conditions on -site, and the fact that the Initial Study has not-yet been circulated to the public for review, DJP &A will update the Initial Study accordingly, This contract amendment includes DJP &A time to review the Site Assessment Results report by ERM, revise the Initial Study to incorporate the additional hazardous materials information, and reprint the document for public circulation. This contract amendment includes DJP &A providing the necessary copies of the document to the City for submittal to the State Clearinghouse.' Per our discussion, this contract amendment request also includes DJP &A Project Manager attendance at orle ER.0 meeting for the project. Note that our original contract includes four (4) hours of DJP &A, time to assist the City in responding to comments ' This contract, amendment assumes that the City will subrnit the document to the State Clearinghouse due to oversight by a State agency (San Francisco Bay Regional 'eater Quality Control Board, Case 1/14-834). if the City would like DJP &A to deliver the document to the State Clearinghouse on the City's behalf, DJP &A can do so upon authorization by the City and on a time and materials basis. Enviroumeatal Consultants & Planners 1871 The Alameda . Suite 200 9 Sau Josh, CA 95126 • Tel: 408- 248 -3500 9 Fax: 408 -248 -9641 • www.davidjpowes . com received on the Initial Study during the public review period. In the event additional effort is required, DJP &A can assist in preparing responses on a time and materials basis upon authorization by the City. We anticipate that completion of the above described tasks will require $6,160. However, we currently have approximately $3,000 remaining in our in -house budget. For this reason, we are requesting an amendment for only $3,160 to cover the additional tasks, including printing. This would bring our total contract amount from $37,218 to $40,378. A breakdown of the amendment request is provided below. Our work would be billed on a time and materials basis. If we do not need all the time that has been budgeted, we will only charge for the time that we have actually spent completing the work. A. Approximate DJP &A In -House Budget Remaining $3,000 B. Additional DJP &A In -House Tasks $6,160 — Review ERM's January 23, 2014 Site 4ssessnient Results report — Revise Initial Study to incorporate the information in ERM's report — Revise the MMRP — Attend 1 ERC meeting — Reimbursables (7 hard copies of the Initial Study, 1. PDF of the document for posting on the City's.website, 15 CD copies and 15 copies of a Summary of the Initial Study for submittal to the State Clearinghouse) Total Cou tract Amendment Request (B — A) $3,160 Please call me or Nora Monette if you have any questions or need additional information. If these amendments are acceptable to you, please provide written authorization to invoice for this additional work. Sincerely, Kristy Weis Project Manager Direct Line: 408- 454 -3428 kweis @davidjpowers.com Environmental Consultants & Planners 1971 The Alameda • Suite 200 • San Jose, CA 95126 • Tel: 408 -248 -3500 • Fax: 408 - 248 -9641 • www,davidjpowescom US O2Cy172A Ca �u.�A'b{alotl. t ,1 ���. �` ot+ J. t�i��t !��.k.l�'��`�:'�..I?t•!],�7 January 29, 2014 George Schroeder, Associate Planner City of Cupertino, Community Development Department 10300 Torre Avenue Cupertino, CA 95014 Exhibit A 0k \tK , 6410_� RE: 10121, N. Foothill Boulevard Live /Wor.k'Project — Contract Amendment 1 Sent via email: a GeoreQeS cupertino.org Dear Mr. Schroeder: I am writing this fetter .to request an amendment to our existing contract for the 10121 North Foothill Boulevard Live /Work project, We are submitting; i:his contract amendment,request to update the Initial Study to reflect the analysis in the recent hazardous materials report by ERM (ERM, Site Assessment Results, January 23, 20 14), reprint the-Initial Study for public circulation (including submittal to the State Clearinghouse), revise the draft Mitigation Monitoring and Reporting Program (MMRP) accordingly, and attend the Environmental Review Committee (E.RC) meeting for the project, These additional tasks Were not anticipated or included in our original scope of work. On January 9, 2014, DJP &A finalized the Initial Study and provided copies to the City for public distribution. The Initial Study included mitigation measures to further characterize the hazardous materials conditions on -site and relnediate any contamination found appropriately. Subsequent to the completion of the Initial Study, the applicant's hazardous materials consultant (ERM) completed an investigation to further characterize conditions on -site (ERM, Site Assessment. Results, January 23, 2014) and submitted this report to the City. Given that there is additional data and clarification about the hazardous materials conditions on -site, and the fact that the Initial Study has not yet been circulated to the public for review, DJP &A will update the Initial Study accordingly, This contract amendment includes DJP &A time to review the Site Assessment Results report by ERM, revise the initial Study to incorporate the additional hazardous materials information, and reprint the document for public circulation. This contract amendment includes DJP &A providing the necessary copies of the document to the City for submittal to the State Clearinghouse.' Per our discussion, this contract amendment request also includes DJP &A Project Manager attendance at one ERC meeting for the project. Note that our original contract includes four (4) hours ofDJP&A time to assist the City in responding to comments This.contract amendment assumes that the City will submit the document to the State Clearinghouse due to oversight by a State agency (San Francisco Bay Regional Water Quality Control Board, Case 1/14- 834). if the City would like DJP &A to deliver the document to the State Clearinghouse on the City's behalf, DJP &A can do so upon authorization by the City and on a time and materials basis, Environmental Consultants & Planners 1871 The Alameda • Suite 200 9 San Josd, CA 95126 • Tel: 408 - 248 -3500 • Fax: 408- 248 -9641 9 www.davidjpowes . com received on the Initial Study during the public review period. In the event additional effort is required, DJP &A can assist in preparing responses on a time and materials basis upon authorization by the City. We anticipate that completion of the above described tasks will require $6,160. However, we. currently have approximately $3,000 remaining in our in -house budget. For this reason, we are requesting an amendment for only $3,160 to cover the additional tasks, including printing. This would bring our total contract amount from $37,218 to $40,378. A breakdown of the amendment request is provided below. Our work would be billed on a time and materials basis. If we do not need all the time that has been budgeted, we will only charge for the time that we have actually spent completing the work. A. Approximate DJP &A In- -House Budget Remaining $3,000 B. Additional DJP &A In -Mouse Tasks $6,160 — Review ERM's January 23, 2014 Site Assessment Results report — Revise Initial Study to incorporate the information in ERM's report — Revise the MMRP — Attend 1 $RC meeting — Reimbursables (7 hard copies of the Initial Study, 1. PDF of the document for posting on the City's websitc, 15 CD copies and 15 copies of a Summary of the Initial Study for submittal to the State Clearinghouse) Total Contract Amendment Request (B — A) $3,160 Please call me or Nora Monette if you have any questions or need additional information. If these amendments are acceptable to you, please provide written authorization to invoice for this additional work. Sincerely, rvk�SL�- Kristy Weis Project Manager Direct Line: 408- 454 -3428 icweis ct,davidipowers.eom Environmental Consultants & Planners 1971 The Alameda • Suite 200 • San Jose, CA 95126 • Tel: 408 - 248 -3500 • Fax: 408 - 248 -9641 • www.davidjpowes.com January 22, 2014 OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014 -3255 TELEPHONE: (408) '777 -3223 • FAX: (408) 777 -3366 wEBSITE: WWW.CUpe:rtino.org Re: Agreement Enclosed is a fully executed original copy of the first amendment to your agreement with the City of Cupertino. If. you have any questions or need additional information, please contact the Community Development Department at (408) 777 -3308. Sincerely, Dorothy Stee fott Senior Office Assistant cc: Plarmz ng Enclosure V,, s � FIRST AMENDMENT AGREEMENT BETWEEN THE CITY OF CUPERTINO AND DAVID J POWERS & ASSOCIATES FOR CONSULTANT SERVICES FOR 10121 N FOOTHILL RESIDENCES — :FOOTHILL BLVD LIVE /WORK This First Amendment to the Agreement between the City of Cupertino and David J Powers, for reference dated December 16, 2013, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "CITY ") and David J Powers & Associates, a California corporation whose address is (hereinafter "CONTRACTOR "), and is made with reference to the following: RECITALS: A. On May 10, 2013, an agreement was entered into by and between City and David T. Powers & Associates (hereinafter "Agreement "). B. City and David I. Powers & Associates desire to modify the Agreement on the terns and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. TERM: The term section of the Agreement iS modified to read as follows: The services and /or materials furnished w-lder this Agreement shall commence on May 10, 2013, and shall be completed before December 31, 2014, or as extended by agreement. 2. SERVICES TO BE PERFORMED: Services to be performed section of the Agreement shall remain the same and shall be in full force and effect. 3. COMPENSATION: The Compensation section of the Agreement shall remain the same and shall be in full force and effect. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. Page 1 of 2 First Amendment, DJP Foothill Blvd Live /Work, 12 -16 -13 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. By -d W , Skaj Title_ Date 1211 (0r13 Page 2 of 2 First Amendment, DJP Foothill Blvd Live /Work, 12 -16 -13 CITY OF CUPERTINO A Municipal Corporation By _ Gatff hao`, City Plaruler Date APPR ) VED AS TO FORM: By Carol Korade,City Attonney, ATTEST: By 4S I Grace Schmidt, City Clerk OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014 -3255 TELEPHONE: (408) 777 -3223 • FAX: (408) 777 -3366 WEBSITE: www.cupert 'no.org CUPERTINO June 6, 2013 Re: 10121 N. Foothill Blvd. Live/Work Residences Enclosed is a fully executed original copy of your agreement with the City of Cupertino If you have any questions or need additional information, please contact the Planning Department at (408) 777 -3308. S' cerely, Dorothy St enfott Senior Office Assistant Enclosure cc: Planning AGREEMENT BETWEEN THE CITY OF CUPERTINO AND David J. Powers & ssocia OR CONSULTANT SERVICES FOR 10121 N. Foothill Residences — Foothill Blvd Live/Work k V ,' HIS AGREEMENT, for reference dated May 10, 2013, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City "), and David J. Powers & Associates, a California corporation, whose address is (hereinafter referred to as "Consultant "), and is made with reference to the following: RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement; and C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and Consultant desire to enter into an agreement for upon the terms and conditions herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The term of this Agreement shall commence on May 10, 2013, and shall terminate on December 31, 2013, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED: Consultant shall perform each and every service set forth in Exhibit "A" which is attached hereto and incorporated herein by this reference. 3. COMPENSATION TO CONSULTANT: Consultant shall be compensated for services performed pursuant to this Agreement in the amount set forth in Exhibit "A" which is attached hereto and incorporated herein by this reference. Payment shall be made by checks drawn on the treasury of the City, to be taken from the 110-2211 fund. 4. TIME IS OF THE ESSENCE: Consultant and City agree that time is of the essence regarding the performance of this Agreement. STANDARD OF CARE: Consultant agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 6. INDEPENDENT PARTIES: City and Consultant intend that the relationship between them created by this Agreement is that of employer- independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer- employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 6. IMMIGRATION REFORM AND CONTROL ACT CIRCA): Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his /her employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 7. NON - DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer /employee conduct, Consultant agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Consultant agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 8. HOLD HARMLESS: A. Indemnification: Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold 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 or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to the performance of this Agreement by 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 litigation. B. Claims for Other Liability. Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liability, claims, actions, causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage to property or other liability of any nature, that arise out of, pertain to, or relate to the negligence, recklessness, or willful 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 litigation. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees. C. Claims involving intellectual property. In addition to the obligations set forth in (A) and (B) above, Consultant shall indemnify, defend, and hold the City, its elected and appointed officer, employees, and volunteers, harmless from and against any Claim in which a violation of intellectual property rights, including but not limited to copyright or patent rights, is alleged that arises out of, pertains to, or relates to Consultant's negligence, recklessness or willful misconduct under this Agreement. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. 9. INSURANCE: On or before the commencement of the term of this Agreement, Consultant shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 9A, B, C, D and E. Such certificates, which do not limit Consultant's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, Attention: City Manager." It is agreed that Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Consultant shall maintain the following; insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence $1,000,000 aggregate - all other Property Damage: $100,000 each occurrence $250,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of $1,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Comprehensive automotive liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Limit: $500,000 each occurrence (4) Professional Liability: Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000,000. B. SUBROGATION WAIVER: Consultant agrees that in the event of loss due to any of the perils for which he /she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his /her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance. City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and commissions, officers, employees and volunteers shall be named as an additional insured under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. 10. CONFLICT OF INTEREST: Consultant warrants that it is not a conflict of interest for Consultant to perform the services required by this Agreement. Consultant may be required to fill out a conflict of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations. 11. PROHIBITION AGAINST TRANSFERS: Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Consultant from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Consultant. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power of the corporation. 12. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names and resumes are attached to this Agreement shall be used in the performance of this Agreement. In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general, automobile and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 13. PERMITS AND LICENSES: Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses including, but not limited to, a City Business License, that may be required in connection with the performance of services hereunder. 14. REPORTS: A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of City. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to City the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of City, and all publication rights are reserved to City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. B. All Reports prepared by Consultant may be used by City in execution or implementation of: (1) The original Project for which Consultant was hired; (2) Completion of the original Project by others; (3) Subsequent additions to the original project; and /or (4) Other City projects as appropriate. C. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be printed on recycled paper. All Reports shall be copied on both sides of the paper except for one original, which shall be single sided. E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. 15. RECORDS: Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Consultant shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. 16. NOTICES: All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Consultant to City shall be addressed to City at: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: George Schroeder All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: David J. Powers & Associates, Inc 1871 The Alameda, Suite 200 San Jose, CA 95126 Attn: Nora Monette Principal Project Manager 17. TERMINATION: In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If such default is not cured within within the time specified after receipt by Consultant from Cite of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Consultant written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 18. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. 19. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 20. ADVERTISEMENT: Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 21. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 22. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written e?�:ecution signed by both City and Consultant. 22. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 23. CAPTIONS: The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT David J. Powers Associates Inc By_ Title Date 5 13 J 3 EXPENDITURE DISTRIBUTION CITY OF CUPERTINO A Municipal Corporation By Gary Chao��l� Title Citv Planner Date Z APPROVED AS TO FORM: .Title: City Attorne ATTEST: Title: City Clerk 110 -2211 — BS 19446 1,640,53388 � 3�'�2.1`�• Exhibit A '(4-41 ��U � ld -IM6 & ASSOCIATES. INC. February 20, 2013 George Schroeder, Assistant Planner City of Cupertino, Community Development Department 10300 Torre Avenue Cupertino, CA 95014 RE: 10121.N. Foothill Residences — Initial Studly Scope of Work Sent via email: GeoregeS @cupertino.org Dear Mr. Schroeder: David J. Powers & Associates, Inc. (DJP &A) is pleased to provide you with this proposed scope of work for the preparation of an Initial Study that satisfies the requirements of the California Environmental Quality Act (CEQA) and the regulations of the City of Cupertino for the proposed 10121 N. Foothill Residences project. The project proposes to rezone an approximately 0.66 -acre site located at 10121 North Foothill Boulevard to allow for the development of six single - family dwelling units as part of a planned development. Five of the six dwelling will have detached workspaces intended for live /work. The intensity of the workspaces will be regulated by the City's Home Occupation Ordinance, which basically limits client/customer visits to one person at a time. Attached is a scope of work that describes the main issues to be discussed in the Initial Study, and the estimated schedule and cost for completion of the Initial Study. The scope is based upon our familiarity with the area and projects of similar scope and size. Our work will be billed on a time and materials basis, in accordance with the attached fee schedule. If we do not need all the staff hours /cost that have been budgeted, we will only charge you for the time that we actually spent completing the work. If this proposal is acceptable to you, it can be attached as a scope of work to your standard consultant agreement. Once we receive written authorization to proceed and all related project information (refer to Attachment A), we can proceed. We appreciate your consideration of our firm for this work and look forward to working with you on this project. Please contact me if you have any questions about this proposal or need any additional information. Sincerely,` Nora Monette Principal Project Manager Aici _Ar5q- -3,432 ./attachments n r" oHe4 �c ® 01AVIS j pot -&-s- COM JOLDavid J. Powers & Associates, Inc. is a Certified Green Business Green Business 1871 The Alameda a Suite 240 • San Josh, CA 95126 ,.M.G -C." Tel: 408 -248 -3500 • Fax: 408 - 248 -9641 a www.davidjpowers.com 09. DAVID I POWERS lamp ' ASSOCIATES, 10121 N. Foothill Residences Initial Study Scope of Work The project proposes to rezone an approximately 0.66 -acre site located at 10121 North Foothill Boulevard to allow for the development of six, single - family dwelling units and five detached workspaces intended for live /work. The detached buildings would be two - stories in height. Currently, only commercial uses are allowed on the site. The site historically has been used as a gas station and for automobile repair. Several underground fuel storage tanks (USTs).and hydraulic lifts have been removed from the project site. A Closure Letter was issued by the County of Santa Clara Fire Department in December 2012. Preparation of the Initial Study David J. Powers & Associates, Inc. (DJP &A) will prepare an Initial Study that describes the proposed project and existing environmental setting, and includes an Initial Study checklist that is consistent with the CEQA Guidelines and City of Cupertino (City) requirements. Each possible impact identified in the checklist will be addressed, including a discussion of its significance and the mitigation measures that would reduce impacts to a less than significant level. This scope is based on the understanding that the project would be eligible for a Mitigated Negative Declaration, assuming that there are no significant impacts, or mitigation measures are included in the .project to reduce any impacts to a less than significant level.' The main components of the Initial Study are described below. Project Description Based on information to be provided to DJP &A by the City of Cupertino /project applicant (see page 6), the Initial Study will provide a detailed description of the proposed project, including the physical characteristics (number of units, maximum building height, demolition and excavation, parking, landscaping, circulation, etc.) of the development. Maps and graphics of the site and proposed project will be included to illustrate the text. Environmental Setting, Impacts, and Mitigation An overview of the environmental setting will be provided. The Initial Study will include a checklist based on the form recommended by the CEQA Guidelines and in conformance with City of Cupertino requirements. Each possible impact identified uy the checklist will be addressed, including a discussion of its significance as well as mitigation measures to reduce impacts, if warranted., 1 In the event that the project would result in a significant, unavoidable impact, or the applicant does not propose to include necessary mitigation, then an Environmental Impact Report (EIR) would be required. DJP &A could prepare the EIR under a separate scope and budget. 10121 N. Foothill Boulevard Residences 2 Scope of Work We anticipate that the primary issues to be addressed'. will include land use, hazards and hazardous materials, air quality, noise, cultural resources, and biological resources (specifically trees). The Initial Study will also address all other issues in the checklist, including aesthetics, agricultural resources, geology and soils, greenhouse gas emissions, hydrology and water quality impacts, mineral resources, population and housing, public services, recreation, transportation, and utilities and service systems. The riP mary issues to be addressed in the Initial Study are described below. Land Use — The approximately 0.66 -acre project site is currently developed with an approximately 1,600 square foot automotive .repair shop. The project site was formally occupied by a gas station. The Initial Study will describe the existing land use on the site and in the site vicinity, The Initial Study will discuss the relationship of the proposed residential uses to nearby land uses, and will address possible land use conflicts. Mitigation measures will be identified to reduce land use impacts, as appropriate. Hazardous Materials — The project site historically has been used as an automobile repair shop and a gas station. Prior to that, the site had been occupied by an orchard. The project site is identified by the State of California's Water Resources Control Board GeoTracker website as having a closed leaking underground storage tank (Case # 07S2W151701f). A recent letter from the County of Santa Clara Department of Environmental Health (January 18, 2013) indicates that the Department is not reopening the site closure and there is residual soil contamination at the site that could pose an unacceptable risk under certain development activities, including site grading and excavation. The Initial Study will evaluate the potential for soil and/or groundwater contamination to impact the proposed residential uses on the site, based on a Phase I Environmental Site Assessment to be provided by the applicant and peer reviewed by Cornerstone Earth Group. Given the site's history of petroleum hydrocarbon use and storage, the Phase I (or supplemental documents) should also provide recommendations on soil, soil vapor, and groundwater sampling appropriate for the proposed change in land uses. The peer review includes an initial review of materials and a second review, if necessary, to ensure appropriate revisions have been made. Mitigation measures for significant hazardous materials impacts will be identified, as appropriate, and will include conformance with local, state, and federal laws and regulations. Air Qu&W — The IS will evaluate the air quallity emissions resulting from construction and operation of the project, in conformance with Bay Area Air Quality Management District (BAAQMD) guidelines and the CEQA guidelines. The IS will describe the existing air quality conditions in the project area, and will evaluate the potential for the project to result in significant operational air quality impacts. Based upon the relatively small size of the project, it does not appear that it would result in significant air quality impacts for criteria pollutants. The IS will also address the project's potential construction air quality impacts to nearby residential receptors based upon information provided by the City and project applicant. Given the size of the project, implementation of standard dust control measures, the use of newer construction equipment and a prohibition on the use of diesel generators could reduce construction impacts to a less than significant level. In the event more extensive excavation or use of older construction equipment is proposed, construction air toxics impacts could be 10121 N. Foothill Boulevard Residences 3 Scope of Worts assessed as an optional task by Illingworth & Rodkin. If the City elects for a construction air toxics analysis to be completed, this scope assumes that detailed project construction phasing and equipment information will be provided to DJP &A by the City /applicant for use in the modeling. Mitigation measures for significant air quality impacts will be identified, as appropriate. Noise — The Initial Study will address existing noise conditions in the project area and possible noise impacts both to and from the proposed project based on a noise study to be completed by Illingworth & Rodkin, Inc. The existing noise environment will be quantified through a noise monitoring survey at the project site. Noise levels would be measured over a continuous 24 -hour period along Foothill Boulevard and over periods of 10 to 15- minutes at additional locations. Applicable noise - related plans, policies, and standards would be summarized in the regulatory background section of the noise study. Noise impacts, including construction - related noise impacts, will be identified based on the noise assessment. Mitigation measures will be identified to reduce impacts, as appropriate. Biological Resources — The project site is developed and located within an urban area. The primary biotic resources present are on -site trees. The Initial Study will evaluate impacts to trees based on a tree survey to be provided by the City or project applicant Mitigation measures will be identified for significant impacts, as appropriate. Cultural Resources — The project site is located within an archaeologically sensitive area. The potential to encounter buried archaeological resources will be discussed based on a literature review and archaeology report to be completed by Holman & Associates. Mitigation measures will be identified to reduce impacts, as appropriate. Revisions to the Initial Stud DTP &A will provide up to one print copy and an electronic (PDF) copy of the Administrative Draft Initial Study (ADIS) to City of Cupertino Staff for review and comment. An electronic version of the ADIS, in WORD format, will be provided to City Staff, so that they may insert comments via the "track changes" mode. Revisions will be made to the ADIS, based on comments received. After the revisions to the document have been made, one print copy and an electronic copy of the "Screencheck" Initial Study will be provided to City Staff for final review. After final revisions, if any, to the "Screencheck" have been made, up to seven (7) print copies and electronic copies of the Initial Study will be provided to the City for public distribution. This scope of work also includes providing a copy of the Initial Study in PDF format for posting on the City's website. Preparation of the Mitigation Monitoring and Reporting Proaram DTP &A will prepare a draft Mitigation Monitoring and Reporting Program (MMRP) for the project prior to circulation of the Initial Study. The MMRP will summarize the mitigation measures identified for all significant impacts, the responsible implementation agency, the monitoring phase, and the enforcement or monitoring agency. 10121 N. Foothill Boulevard Residences 4 Scope of work Public Comments DJP &A will respond to substantive comments received on the Initial Study during the public review period, and will make any necessary changes to the Initial Study, based upon the comments received. This scope of work includes approximately four hours to respond to written comments received from the public and/or various governmental agencies as a result of circulation of the Initial Study. In the event additional comments are received, responses can be prepared on a time and materials basis upon authorization by the City. Coordination and Meetines This scope of work includes DJP &A project manager attendance at one project "kick -off" or coordination meeting with City Staff. DJP &A attendance at environmental review committee meetings and public hearings on the Initial Study are not included in this scope of work and could be provided on a time and materials basis upon authorization of City staff. The DJP &A project manager will coordinate with City staff on a regular basis using email and telephone communications. ESTIMATED SCHEDULE DJP &A proposes the following optimum schedule for preparation of the Initial Study. DJP &A can commit to maintaining the schedule in the areas which are within our control. Completion of the Initial Study, as described in the schedule below, is based upon receipt of all necessary project information upon receiving authorization to proceed. Delays in receiving requested information or responses by others will result in at least day- for -day delays in the overall schedule. Substantial changes in the project description made after work on the Initial Study has begun, including proposed land use, number of units, building height, etc., would also result in delay while the document is rewritten. The below schedule also assumes that no comments are received during the circulation of the Initial Study that raise any new issues, or require additional technical studies. Task Duration Elapsed Time DJP &A receives authorization to proceed and project information listed on the following page. - -- 1 day DJP &A subconsultants complete the following technical reports: screening health risk analysis, noise assessment, archaeological report. 4 weeks 4 weeks DJP &A completes Administrative Draft Initial Study 7 weeks 7 weeks City completes review of Administrative Draft Initial Study 4 weeks 1 I weeks DJP &A revises document and prepares "Screencheck" Initial Study 2 weeks 13 weeks City completes review of "Screencheck" Initial Study 2 weeks 15 weeks DJP &A revises document and prepares Initial Study for public circulation 1 week 16 weeks Public Circulation of Draft Initial Stud 30 da s 4 weeks 20 weeks TOTAL +/- 20 weeks 10121 N. Foothill Boulevard Residences 5 Scope of Work INFORMATION REQUIRED FROM THE CITY/PROJECT APPLICANT Our scope and schedule are based on the assumption that DJP &A will receive the following concurrent with a Notice to Proceed: Technical Revort/Information ❑ Phase I Environmental Site Assessment ❑ Tree Survey and Tree Protection Measures, in conformance with City of Cupertino standards ❑ Preliminary geotechnical report (if available) Proiect Detail ❑ Project description including proposed zoning designation and other required project approvals. ❑ Maximum number of units proposed ❑ Maximum building heights ❑ Location, size, and adequacy of existing utility lines that would serve the project (water, sewer, storm drain) ❑ Utility improvements ❑ Cut and Fill amounts ❑ Any remedial measures for soil handling or cleanup during site development ❑ Amount of pervious and impervious surfaces pre- and post - construction ❑ List of Best Management Practices (BMPs) proposed to conform to Provisions C.3 of the NPDES permit ❑ Any features proposed to reduce energy (electricity, natural gas, fuel), water use, and/or greenhouse gas emissions. Plans (in PDF) ❑ Site plan ❑ Building elevations /cross- sections ❑ Grading and drainage plan ❑ Landscaping plan, if applicable 10121 N. Foothill Boulevard Residences 6 Scope of Work ESTIMATED COST We anticipate that the cost to complete the Initial Study on the proposed project will not exceed $37,218 (or $40,538 with the optional task). Our work will be billed on a time and materials basis, in accordance with the attached fee schedule. If we do not need all the staff hours /cost that has been budgeted, we will only charge you for the time that ive have actually spent completing the work. This scope of work assumes that no issues arise that would require any additional technical analysis or documentation. In the event that additional technical analysis is required, we could complete that work on a time and materials basis, upon your written authorization. Tasks Cost David J. Powers & Associates, Inc. — Preparation of Initial Study $25,760 — Reimbursables (Printing, maps, travel) $ 1,150 Subconsultants* — Cornerstone Earth Group (Phase I ESA peer reviews) $ 2,300 — Holman & Associates (archaeological report) $ 1,438 — Illingworth & Rodkin, Inc. (noise assessment) $ 6,670 TOTAL $37,218 Optional Task: — Illingworth & Rodkin, Inc. construction health risk analysis) $ 3,320 jPotal with O tional Task $40,538 Notes: * All subconsultant and reimbursables include our standard 15 percent administrative fee. 10121 N. Foothill Boulevard Residences 7 Scope of Work & ASSOCIATES, INC. Q 'ra t DAVID J. POWERS & ASSOCIATES Charge Rate Schedule' SENIOR PRINCIPAL $ 250.00 PER HOUR PRINCIPAL PROJECT MANAGER $ 220.00 PER HOUR SENIOR ENVIRONMENTAL SPECIALIST $ 195.00 PER HOUR SENIOR PROJECT MANAGER $175.00 PER HOUR ENVIRONMENTAL SPECIALIST $ 160.00 PER HOUR PROJECT MANAGER $ 150.00 PER HOUR ASSOCIATE PROJECT MANAGER $ 135.00 PER HOUR ASSISTANT PROJECT MANAGER $ 110.00 PER HOUR RESEARCHER $ 95.00 PER HOUR DRAFTSPERSON /GRAPHIC ARTIST $ 85.00 PER HOUR DOCUMENT PROCESSO.R/QUALITY CONTROL $ 85.00 PER HOUR ADMINISTRATIVE MANAGER $ 85.00 PER HOUR OFFICE SUPPORT $ 70.00 PER HOUR MATERIALS, OUTSIDE SERVICES AND SUBCONSULTANTS INCLUDE A 15% ADMINISTRATION FEE. MILEAGE WILL BE CHARGED PER THE CURRENT IRS STANDARD MILEAGE RATE AT THE TIME COSTS OCCUR, SUBJECT TO REVISION JANUARY 2014 2 David J. Powers & Associates, Inc. provides regular, clear and accurate invoices as the work on this project proceeds, in accordance with normal company billing procedures. The cost estimate prepared for this project does not include special accounting or bookkeeping procedures, nor does it include preparation of extraordinary or unique statements or invoices. If a special invoice or accounting process is requested, the service can be provided on a time and materials basis. 10121 N. Foothill Boulevard Residences 8 Scope of Work