13-075 David J. Powers & Associates, Inc., Agreement for Consultant Services, Stevens Creek Corridor Park and Restoration Phase 2 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
DAVID J. POWERS &ASSOCIATES, INC. FOR CONSULTANT SERVICES
CS-
f S CREEK CORRIDOR PARK AND RESTO RATION PHASE 2
� 3 � � G Pe 6/
AGREEMENT, for reference dated May 28, 2013, is by and between
OF CUPERTINO, a municipal corporation (hereinafter referred to as
"City"), and David J. Powers & Associates, Inc., a California corporation, whose
address is 1871 The Alameda, Suite 200, San Jose, CA 95126 (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 wii:h 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 the date this agreement is
executed and shall terminate on June 30, 2014, unless terminated earlier as set
forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A".
titled "Scope of Services" which is attached hereto and incorporated herein by
this reference.
Cupertino-David J.Powers&Associates Page 1 of 12
Stevens Creek Corridor Park&Restoration Phase 2
3. SCHEDULE OF PERFORMANCE:
The Services of Consultant are to be completed according to the schedule
set out in Exhibit C, titled "Schedule of Performance", which is attached hereto
and incorporated herein by this reference.
4. COMPENSATION TO CONSULTANT:
The maximum compensation to be paid to Consultant under this
agreement shall not exceed Twenty Five Thousand Dollars ($25,000.00). The rate
of payment is set out in Exhibit B, titled "Compensation", which is attached
hereto and incorporated herein.
Consultant shall furnish to City a detailed statement of the work performed for
compensation during the term of this Agreement. Consultant may submit
monthly invoices for interim progress payments during the course of each phase,
clearly stating as a minimum the total Contract amount, amount paid to date,
percent complete and amount due.
5. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the
performance of this Agreement.
6. 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.
7. 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
Cupertino-David J.Powers&Associates Page 2 of 12
Stevens Creek Corridor Park&Restoration Phase 2
Consultant. Payments of the above items, i.E required, are the responsibility of
Consultant.
8. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
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.
9. 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.
10. PROJECT COORDINATION
CITY: Director of Public Works shall be representative of City for all
purposes under this Agreement. Gail Seeds is hereby designated as the Director
of Public Works' designee and Project Manager, and shall supervise the progress
and execution of this Agreement.
CONSULTANT: Consultant shall assign a single Consultant Project
Manager to have overall responsibility for the progress and execution of this
Agreement for Consultant. Should circumstances or conditions subsequent to
the execution of the 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. The
designated Consultant Project Manager shall be Jodi Starbird.
11. HOLD HARMLESS:
Indemnification:
A. Claims for Professional Liability. Where the law establishes a standard
of care for Consultant's professional services, and to the extent the
Cupertino-David J.Powers&Associates Page 3 of 12
Stevens Creek Corridor Park&Restoration Phase 2
Consultant breaches or fails to meet such established standard of care, or
is alleged to have breached or failed to meet such standard of care,
Consultant shall, to the fullest extent allowed by law, with respect to all
services performed in connection with the Agreement, indemnify, defend,
and hold 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, 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
negligence or willful misconduct of City, its agents or employees.
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 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, that arise out of,
pertain to, or relate 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.
12. 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 12A, B, C, I) 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
Cupertino-David J.Powers&Associates Page 4 of 12
Stevens Creek Corridor Park&Restoration Phase 2
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
Cupertino-David J.Powers&Associates Page 5 of 12
Stevens Creek Corridor Park&Restoration Phase 2
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.
13. 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.
14. 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
Cupertino-David J.Powers&Associates Page 6 of 12
Stevens Creek Corridor Park&Restoration Phase 2
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.
15. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and
subcontractors whose names are included in 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.
16. 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.
17. 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 1:o 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:
Cupertino-David J.Powers&Associates Page 7 of 12
Stevens Creek Corridor Park&Restoration Phase 2
(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.
F. Electronic and hard copies of Consultant's work product shall
constitute the Project deliverables. Plans to be in CAD and PDF formats, and
other documents to be in Microsoft Word and PDF formats. City holds
Consultant harmless for any modifications to the documents.
18. 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.
Cupertino-David J.Powers&Associates Page 8 of 12
Stevens Creek Corridor Park&Restoration Phase 2
19. 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
Department of Public Works
10300 Torre Ave.
Cupertino CA 95014
Attention: Gail Seeds
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
Attention: Jodi Starbird
20. 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 the time specified after receipt by Consultant from City 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.
In the event of termination, Consultant shall deliver to City, copies of all
reports, documents, and other work performed by Consultant under this
Agreement.
Cupertino-David J.Powers&Associates Page 9 of 12
Stevens Creek Corridor Park&Restoration Phase 2
21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances,
rules and regulations enacted or issued by City. Consultant shall comply with
applicable provisions of Applicant-State Agreement No. 04-20-035 between City
and the State of California, attached hereto as Exhibit D.
22. 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.
23. 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.
24. 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
execution signed by both City and Consultant.
•
25. 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
City Administrative Procedures.
Cupertino-David J.Powers&Associates Page 10 of 12
Stevens Creek Corridor Park&Restoration Phase 2
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 19 of this Agreement.
26. 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.
27. 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.
Cupertino-David J.Powers&Associates Page 11 of 12
Stevens Creek Corridor Park&Restoration Phase 2
UiI P.O. No.. —� �
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed.
CONSULTANT CITY OF CUPERTINO
A Municipal Corporation
David J. Powers & Associates Inc.
By -"D'
Tirnm Borden, Director of Public Works
Name
Date 6/6//
TitleAFX L---
Date 51°1
1 ('l
Tax I.D. No.: —7 7- OZ \95-77
APPROVED AS TO FORM:
Address: 1S7 I 1 MED +
STE. zoo f /J
Sly N �
�V5 E-, A �1s l z, 4z
frY Carol Korade, City At Forney
ATTEST:
L--30`“ L
Grace Schmidt, City Clerk
Contract Amount: '.25 000.00
Account No.: 427-9134-9300
Cupertino-David J.Powers&Associates Page 12 of 12
Stevens Creek Corridor Park&Restoration Phase 2
en° DAVID J. POWERS
& ASSOCIATES , INC .
®
EXHIBIT A
SCOPE OF SERVICES
Stevens Creek Corridor Park and Restoration Phase 2
David J. Powers &Associates(DJP&A)proposes the following scope of work to assist the City of
Cupertino with environmental construction phase services for the above described project. The
project includes the construction of an approximately 1/4—mile segment of Stevens Creek Trail from
Blackberry Farm Park to Stevens Creek Boulevard. The project will also restore Stevens Creek
within the project reach, open the Stocklmeir property to the public, improve a parking lot,and
provide a crosswalk, sidewalk improvements, and parking on Stevens Creek Boulevard.
The city adopted a CEQA Initial Study/Mitigated Negative Declaration(IS/MND) for the project
(September 2011)and expects to construct the project June - December 2013. The following tasks
will be completed prior to and during construction and relate specifically to implementing the
measures identified in the IS/MND as they pertain to impacts to biological and cultural resources.
DJP&A will subcontract with H.T. Harvey and Associates for pre-construction biological surveys
and Basin Research Associates for archaeological construction monitoring services as described
below. Each task includes approximately 20 hours of coordination and consulting services to be
completed by DJP&A during the construction period.
Task A: Archaeological Monitoring Construction Services
Basin Research Associates will complete archaeological monitoring during ground-disturbing
construction activities as identified in the Mitigation Monitoring and Reporting Plan(MMRP) for the
project. The mitigation measures in the MMRP that will be implemented include primarily CUL-1
and CUL-4. (CUL-2, -3 and-5 are on-call services and are not included in this scope of work.)
• CUL-1 requires a"tailgate" employee education meeting to inform construction personnel of
the potential for exposing subsurface cultural resources and the protocols to follow during a
discovery of archaeological materials including Native American remains.
• CUL-4 requires archaeological monitoring on a"spot-check"basis during significant
subsurface construction within,and within a 100-foot buffer of, CA-SCL-715. The
archaeological monitoring spot-checking will focus on construction of bridge abutments,
excavation of new backwater area, and similar significant earthwork activities.
• The scope of work also includes the preparation of a brief closure report for filing at the
Northwest Information Center.
Cupertino—David J.Powers&Assoc. A-1 Exhibit A
Stevens Creek Corridor Park&Restoration Phase 2
Assumptions:
• In the case of a discovery, any required actions will be handled as an additional scope item.
• The extent of"spot-monitoring"has been determined on a time and materials basis, based
upon Basin's knowledge of the site. It includes an anticipated 10 site visits and an
anticipated 40 hours of monitoring. Should additional areas be determined to need
monitoring, additional funds may be required.
• Monitoring will be restricted to an eight-hour day Mondays through Fridays.
DJP&A will provide coordination and consultation services during completion of this task and will
assist the City in complying with any and all of the mitigation measures in the MMRP related to the
discovery of cultural materials.
Cost: not to exceed$9,650
Task B: Pre-construction Biological Surveys for biological mitigation measures
H.T. Harvey&Associates, Consulting Ecologists, will be the lead consultant in the implementation
of pre-construction mitigation measures (B1O-1, -3, and-4)for the project. Their tasks will include
conducting the following:
1) An employee education program prior to the commencement of construction activities to
provide workers with a description of the special status animals that may be encountered,
their habitats, their status and protection under state and federal laws, and a list of measures
to be taken should species be encountered. H.T. Harvey will prepare and provide the
instructional materials.
2) Pre-construction survey for nesting birds including raptors no more than two days prior to the
start of construction. All vegetation will be searched including a 250-foot buffer for raptors
and a 100-foot buffer for non-raptor birds. If found, all nests will be mapped and a buffer
area established as determined by the ornithologist. Following completion of the survey, a
brief letter report will be submitted noting the survey results and will include a map of the
locations of any nests.
3) Pre-construction survey for bats prior to the start of construction, including an evening
survey, and to ensure that no maternity colonies or protected roosts will be impacted by the
project. Trees and bridges within the project area will be surveyed. Following completion of
the survey, a brief letter report will be submitted noting the survey results. Should a roost be
detected, a small amount of time is included to consult with the California Department of
Fish and Wildlife(CDFW).
4) Pre-construction survey for California red-legged frog, western pond turtle,and San
Francisco dusky-footed woodrat. Four days or fewer prior to the start of construction,
ecologists will complete one daytime survey for all species. The entire work area that may
be disturbed by construction will be surveyed, including any burrows, rocks, and woodpiles
that may be disturbed. Following completion of the survey, a brief letter report will be
submitted noting the survey results. In the event that one of these special status species is
detected, U.S. Fish and Wildlife and/or CDFW will be contacted. Coordination/consultation
with regulatory agencies will require additional fees.
Cupertino—David J.Powers&Assoc. A-2 Exhibit A
Stevens Creek Corridor Park&Restoration Phase 2
5) Following completion of each survey, an email notification will be sent to the City's
representative within 12 hours noting the presence of any protected wildlife.
6) Pre-construction surveys shall comply with the conditions of Streambed Alteration
Agreement Notification No. 1600-2012-0356-R3 issued for the project and specifically with
all Avoidance and Minimization Measures.
Assumptions:
• This scope does not include consultation with the regulatory agencies, except if a bat roost is
found. Coordination with agencies could be added as an extra work task.
• Relocation of special status species and eviction of bats is not included, but could be added as
an extra work task.
DJP&A will provide coordination and consultation services during completion of this task and will
assist the City in complying with any and all of the mitigation measures in the MMRP related to
biological resources.
Cost: not to exceed$13,550
Cupertino—David J.Powers&Assoc. A.3 Exhibit A
Stevens Creek Corridor Park&Restoration Phase 2
EXHIBIT B-1
COMPENSATION
Services for
Stevens Creek Corridor Park and Restoration Phase 2,Project 9134
Task A—Archaeological Construction Monitoring
The fees for the scope of Task A work tasks described in Exhibit A are as follows:
Not to exceed $9,650.00
Task B—Biological Pre-Construction Surveys
The fees for the scope of Task B work tasks described in Exhibit A are as follows:
Not to exceed $13,550.00
Reimbursable Expenses
Customary reimbursable expenses such as plotting, printing and reproduction, shipping
and postage, and vehicle mileage, are included in the not-to-exceed fees above.
Additional Services Allowance
An allowance is provided for Additional Services, to be expended only upon written
authorization from City for scope that falls outside of Basic Services.
Additional Services Allowance $1,800.00
TOTAL FEE, NOT TO EXCEED: $25,000.00
The services are proposed to be provided on a not to exceed time and materials basis. Fees will be billed
monthly based on the actual effort in each task.
Invoices shall include hours and rates,reimbursable expenses incurred, subconsultant invoices and
markup, and supporting documentation as needed for audit procedures and grant funding
requirements.
Cupertino—David J.Powers&Assoc. B-1 Exhibit B
Stevens Creek Corridor Park&Restoration Phase 2
EXHIBIT B-2
ULM DAVID J. POWERS
BE
& ASSOCIATES
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 PROCESSOR/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 JULY 2013
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.
B-2
EXHIBIT C
SCHEDULE OF PERFORMANCE
Services for
Stevens Creek Corridor Park and Restoration Phase 2,Project 9134
Schedule for services shall be completed as follows:
Conduct Pre-Construction Wildlife Surveys June 2013
dates TBD
Conduct Pre-Construction Employee Education `tailgate training' June 2013
with Contractor, Construction Manager date TBD
Provide Archaeological Construction Monitoring June—Nov. 2013
dates TBD
as required
Cupertino—David J.Powers&Assoc. C-1 Exhibit C
Stevens Creek Corridor Park&Restoration Phase 2
EXHIBIT D
FOR CALTRANS USE:
I hereby certify upon my own personal knowledge that budgeted funds are available for this encumbrance.
Accounting Officer Date: ` fiir/ ;- $
Chapter Statutes Item Fiscal Program BC Category Fund $
Year Source
11:) slit. .t:.ttt, tt ( it L 4, it ,tit ti ( 3'j) :14;;.4,(c% c c?
APPLICANT-STATE AGREEMENT NO. 04-20-035
ENVIRONMENTAL ENHANCEMENT AND MITIGATION (EEM) PROGRAM
STATE PROJECT NUMBER: EEM-2010 (035)
2010-2011 FISCAL YEAR ALLOCATION
Advantage Project ID: 0400021079
THIS AGREEMENT, made effective this December 15. 2011 , by and between the City of
Cupertino, hereinafter referred to as "APPLICANT'', and the State of California, acting by and through
the California Department of Transportation(Caltrans),hereinafter referred to as "STATE."
WITNESSETH
WHEREAS, as provided by Streets and Highways Code Section 164.56, Senate Bill 117
(Statutes of 1999, Chapter 739) established the EEM Program as a permanent program, funds have been
allocated to APPLICANT by the California Transportation Commission (CTC) after the PROJECT
submitted by APPLICANT had been recommended for funding by the Resources Agency; and as
described in the application(APPLICATION);
WHEREAS, STATE and APPLICANT now desire to enter into an Agreement relative to fund
transfers and cost sharing on the described PROJECT.
NOW,THEREFORE, the parties agree as follows:
ARTICLE I-Project Administration and General Provisions
1. PROJECT shall mean that EEM PROJECT described in the APPLICATION submitted
by APPLICANT and summarized in Exhibit A to this Agreement including financing information as set
forth in Section III of Exhibit A to this Agreement.
Page 1 of 17
EEM-2010(035)
2. The PROJECT submitted by APPLICANT, together with all conditions and assurances
contained therein, and specifically including information on how the PROJECT shall be financed, are
made an express part of this Agreement. Should any conflict exist between the APPLICATION and the
Agreement,the Agreement shall prevail.
3. APPLICANT shall complete PROJECT, which shall be acquired, developed, designed
and constructed as provided in this Agreement.
4. If PROJECT is located on STATE-owned right-of-way, APPLICANT shall comply with
all applicable STATE design and construction standards and practices. If PROJECT is not on STATE-
owned right-of-way, APPLICANT shall comply with the applicable design and construction standards
and practices of the local government having jurisdiction over the PROJECT location.
5 In cases where the CTC approved funding is less than the amount for which
APPLICANT originally applied due to a Budget Reduction on the project required by the State
Resources Agency, APPLICANT is obligated to complete PROJECT without downscoping it, unless
specifically authorized to do so, in writing, by the State Resources Agency. This will be accomplished
by APPLICANT supplementing PROJECT costs with another funding source or by finding a less costly
way to complete the PROJECT.
6 The estimated total cost of PROJECT is as shown in Section III of Exhibit A. While
APPLICANT may,with the STATE's written approval, award a contract in an amount in exceeding the
estimated total PROJECT cost specified in Section III-A of Exhibit A of the Agreement, the allocation
of STATE funds for PROJECT will never be greater than the amount specified in Section III-C of
Exhibit A of this Agreement.
7 Section III of Exhibit A specifies the APPLICANT's estimated total PROJECT cost,each
party's proportionate percentage of those costs and the maximum amount of STATE funds the CTC has
authorized for the PROJECT. The STATE's proportionate share of funding is a certain percent of the
estimated total PROJECT cost and approved scope of the PROJECT (STATE's PROPORTIONATE
SHARE) and will be used as the reimbursement ratio on the project. In the event the actual cost of
PROJECT exceeds the estimated total cost of the PROJECT, the STATE shall pay its
PROPORTIONATE SHARE of the cost only up to the amount specified in Section III-C of Exhibit A of
the Agreement.
8. In the event the PROJECT scope decreases, a decrease in the STATE's
PROPORTIONATE SHARE shall be made. In the event the actual cost of PROJECT decreases for any
reason from the estimated total PROJECT cost specified in Section III of Exhibit A, the allocation of
STATE funds will be decreased proportionately with any decrease in APPLICANT's participating
contribution so that the STATE's PROPORTIONATE SHARE of costs relative to TOTAL PROJECT
COST remains as specified in Section III-B of Exhibit A of the Agreement.
9. No changes of any kind may be made to the PROJECT without prior written notice to
and written acceptance by the STATE of the proposed change. The STATE shall acknowledge a written
notice of proposed change by either accepting or rejecting the proposed changed in writing. In the event
the STATE responds to a proposed change by stating that the proposed change requires discussion and
amendment, such action shall constitute a rejection of the proposed change and any work performed in
spite of that rejection shall not be eligible for reimbursement unless and until there is a written, duly
executed amendment to this Agreement which addresses that work. Any amendment to this Agreement
shall not be effective until executed by both parties. In addition,the parties should take special notice of
ARTICLE XII,paragraph 6 of this Agreement.
Page 2 of 17
EEM-2010(035)
10. After completion and acceptance of PROJECT by both APPLICANT and STATE,
STATE shall pay STATE's PROPORTIONATE SHARE of the cost of PROJECT to APPLICANT,
within sixty (60) days after receipt of a signed invoice for payment submitted by APPLICANT. At the
option of APPLICANT, monthly or quarterly pro rata progress payments in arrears may be made on a
reimbursement basis upon submittal of invoices by APPLICANT and approval by STATE of the
PROJECT costs incurred. Pro rata payments will be based on the amount of the STATE fund transfer
authorized herein in proportion to the total cost of PROJECT, including APPLICANT contributions. An
invoice format document is included as Exhibit C.
11. If PROJECT involves work anywhere on the State highway system, a separate standard
form of encroachment permit between STATE and APPLICANT must be prepared and executed before
PROJECT work may commence.
12. APPLICANT shall comply with the requirements of the FAIR EMPLOYMENT
PRACTICES ADDENDUM (Exhibit B) and further agrees that any agreement or service contract
entered into by APPLICANT with a third party for performance of work connected with the PROJECT
shall incorporate Exhibit B as a part of such agreement.
13. Upon completion of all work under this Agreement and prior to the expiration of this
Agreement,APPLICANT shall prepare and file with STATE one (1) original Final Project Expenditure
Report. The Final Project Expenditure Report must be submitted with the final invoice on the
PROJECT.
ARTICLE II-Rights-of-Way
1. The acquisition, clearance, and improvement of rights of way necessary for the
development of PROJECT shall be the responsibility of APPLICANT. Right-of-way acquisition and
clearance costs may be included as a participating item of total PROJECT costs if included as part of the
PROJECT scope of work.
2. APPLICANT shall perform all PROJECT right-of-way activities in accordance with
applicable State laws and regulations unless the STATE determines, in writing, that the State Uniform
Relocation Assistance and Real Property Acquisition Policies Act (Government Code Secs. 7260-7277)
do not apply to PROJECT.
3. APPLICANT, as part of its PROJECT design responsibility, shall identify and locate all
utility facilities within the PROJECT area. All utility facilities, including those not relocated or
removed in advance of construction, shall be identified on PROJECT plans and specifications.
4. If any existing public and/or private utilities conflict with the construction of PROJECT,
APPLICANT will make all necessary arrangements with the owners of such utilities for their protection,
relocation, or removal. If utility relocation is required within STATE right-of-way, APPLICANT shall
conform to STATE standards, policies and procedures. If utility relocation is outside of STATE right-
of-way,APPLICANT shall conform with local government policies.
5. APPLICANT shall certify as to legal and physical control of that PROJECT right-of-way
once it is ready for construction and that the PROJECT right-of-way was acquired in accordance with
applicable State laws and regulations, subject to review and concurrence by STATE, prior to the
advertisement for bids for construction/development of PROJECT.
Page 3 of 17
EEM-2010(035)
6. If right-of-way acquisition and clearance costs are included as a participating item of
PROJECT costs, STATE shall provide funds only for purchase of the actual right-of-way required for
PROJECT. If APPLICANT acquires right-of-way which includes excess land, STATE will not
participate in the cost of the excess portion. In the event land initially acquired as part of PROJECT
is declared excess at a later date, APPLICANT shall reimburse STATE, no later than one hundred
twenty (120) days after PROJECT completion or upon the subsequent sale of that excess land, for either
the pro rata fair market value of that excess at the time of disposal or, if that property is retained by
APPLICANT, the pro rata fair market value of the excess land at that time. The pro rata fair market
value shall be based on the total of the STATE fund transfer amount applied toward purchase of the
property in proportion to the total purchase price of the property.
ARTICLE III- Safety
1. APPLICANT shall comply with OSHA regulations regarding necessary safety equipment
and procedures. If PROJECT work is to be performed within STATE right of way, APPLICANT shall
also comply with safety instructions issued by the District Safety Officer and other STATE
representatives. APPLICANT's and APPLICANT's personnel shall see that all individuals wear white
hard hats and orange safety vests at all times while working within STATE right of way.
2. Pursuant to the authority contained in Section 591 of the Vehicle Code, STATE has
determined that within such areas as are within the limits of the PROJECT and are open to public traffic,
APPLICANT shall comply with all the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the
Vehicle Code. APPLICANT shall take all reasonably necessary precautions for safe operation of its and
its agent's or APPLICANT's vehicles and the protection of the traveling public from injury and damage
from such vehicles when performing work within STATE right of way.
ARTICLE IV-Inspection of Work
1. APPLICANT and any of its PROJECT subcontractors shall permit STATE to review and
inspect PROJECT activities at all reasonable times during the performance period of this Agreement,
including review and inspection on a daily basis.
Page 4of17
EEM-2010(035)
ARTICLE V-Equipment Purchase
1. Prior authorization in writing by STATE shall be required before APPLICANT enters
into any non-budgeted purchase order or subcontract exceeding $500 for supplies, equipment, or
consultant services.APPLICANT shall provide an evaluation of the necessity or desirability of incurring
such costs.
2. For purchase of any item, service or consulting work not identified in APPLICANT's
Cost Proposal and exceeding $500, with written prior authorization by STATE, three (3) competitive
quotations must be submitted with that request or the absence of bidding must be adequately justified.
3. Any equipment purchased as a result of this Agreement is subject to paragraph 3 of this
Article V.APPLICANT shall maintain an inventory of all nonexpendable property, defined as property
having a useful life of at least two years and an acquisition cost of $500 or more. If purchased
equipment needs replacement and is sold or traded in, STATE shall receive a proper refund or credit.
Upon the expiration date of this Agreement, or if this Agreement is terminated,APPLICANT may either
keep the equipment and credit STATE in an amount equal to its fair market value or sell such equipment
at the best price obtainable, at a public or private sale, in accordance with established STATE
procedures, and credit STATE in an amount equal to the sales price. If APPLICANT elects to keep that
equipment, fair market value shall be determined, at APPLICANT's expense, on the basis of a
competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser
mutually agreeable to STATE and APPLICANT. If it is determined to sell the equipment,the terms and
conditions of such sale must be approved in advance by STATE.
ARTICLE VI-Management and Maintenance of Property
1. APPLICANT will operate, manage and maintain into the future all property acquired,
developed,rehabilitated, or restored with funds transferred through this Agreement.With STATE's prior
approval, APPLICANT or its successors in interest may transfer management and maintenance
responsibilities over the property. If the property is not managed and maintained consistent with the
PROJECT APPLICATION, APPLICANT or its successors in interest, at the discretion of STALE and
within 45 days after receiving notice to APPLICANT by STATE, shall reimburse STATE an amount at
least equal to the amount of STATE's funding participation in PROJECT together with all accrued
interest at State Treasurer's pooled money investment account.
2. All real property, or rights thereto, acquired with these funds shall be subject to an
appropriate form of restrictive title, or rights, covenants approved by STATE. If the PROJECT real
property, or rights thereto, is sold, traded, condemned, or otherwise put to any use other than that use as
approved in the Allocation for STATE funds, the State Highway Account, at the discretion of STATE
and within 45 days notice to APPLICANT by STATE, shall be reimbursed an amount at least equal to
the amount of the STATE's funding participation in PROJECT or the pro rata fair market value of the
real property, or rights thereto, including improvements, at the time of sale, whichever is higher. The
pro rata fair market value shall be based on the proportions of the fund transfer amount applied toward
the purchase of the property, or rights thereto, and the design and construction of improvements in
proportion to the total purchase price of the real property, or rights thereto, and the cost of all
improvements made prior to the time of sale.
Page 5 of 17
EEM-2010(035)
ARTICLE VII-Retention of Records/Audit Review Procedures
1. For the purpose of determining compliance with Public Contract Code 10115, et seq. and
Title 21, California Code of Regulations, Chapter 21., Section 2500 et seq., when applicable, and other
matters connected with the performance of the Agreement pursuant to Government Code 10532,
APPLICANT, its contractors and their subcontractors and STATE shall each maintain all books,
documents, papers, accounting records, and other evidence pertaining to the performance of this
Agreement. All parties shall make such materials available at their respective offices at all reasonable
times during the Agreement period and for four (4) years from the date of final payment under this
Agreement. STATE, the State auditor, the Federal Highway Administration (FHWA), or any duly
authorized representative of the Federal government shall have access to any books, records, and
documents of APPLICANT that are pertinent to this Agreement for audits, examinations, excerpts, and
transactions, and copies thereof shall be furnished by APPLICANT or its contractors, if requested.
2. Any dispute concerning a question of fact arising under an interim or post audit of this
Agreement that is not satisfactorily disposed of by agreement shall be reviewed by the Chairperson of
the STATE Audit Review Committee (ARC). The ARC will consist of the Assistant Director,Audits&
Security (Chairperson); Deputy Director of Transportation Engineering; the Chief Counsel, Legal
Division, or their designated alternates; and two representatives appointment by the Director of
Transportation from private industry whose role will be advisory in nature only and without voting
rights.
3. Not later than 30 days after issuance of the final audit report,APPLICANT may request a
review by the ARC of unresolved audit issues. The request for review will be submitted in writing to
the Chairperson of the ARC. The request must contain detailed information of the factors involved in
the dispute as well as justifications for reversal. A meeting by the ARC will be scheduled if the
Chairperson concurs that further review is warranted. After the meeting, the ARC will make
recommendations to the Chief Deputy Director. The Chief Deputy Director will make the final decision
for STATE within one (1) month following the receipt of the notification of dispute or following the
ARC meeting recommendation date,whichever is later in time.
4. Neither the pendency of a dispute nor its consideration by STATE will excuse
APPLICANT from full and timely performance of its obligations in accordance with the terms of this
Agreement.
5. Any subcontract entered into as a result of this Agreement shall contain all the provisions
of this Article VII.
6. Expenditures of EEM program funds are subject to financial and compliance audits by
the State Controllers Office and Caltrans Office of Audits and Investigations. These guidelines may be
found in Caltrans Local Assistance Procedures Manual, Chapter 10,"Consultant Selection", Exhibit
10-N"Accounting and Auditing Guidelines for Contracts with Caltrans".
Page 6of17
EEM-2010(035)
ARTICLE VIII—Allowable Costs and Payments
1. The method of reimbursement authorized by STATE for PROJECT expenditures made
by APPLICANT under this Agreement will be based on actual costs incurred. STATE will reimburse
the STATE's PROPORTIONATE SHARE of actual costs (based on Section III of Exhibit A and
including labor costs, employee benefits, travel, equipment rental costs, and other direct costs) incurred
by APPLICANT in performance of the work. APPLICANT will not be reimbursed for actual costs that
exceed the estimated wage rates, employee benefits, travel, equipment rental, fringe benefit rates, and
other estimated costs set forth in APPLICANT's cost proposal (Exhibit Al) unless additional
reimbursement is provided for by Agreement amendment. In the event that STATE determines
additional work beyond that specified in APPLICANT's cost proposal and this Agreement is required to
produce a satisfactory PROJECT, the actual costs reimbursable by STATE may be increased by
Agreement amendment to accommodate that additional work. The maximum total costs as specified in
Section III of Exhibit A of this Agreement, shall not be exceeded unless authorized by Agreement
amendment.
2. Reimbursement for transportation and subsistence costs shall not exceed the rates to be
paid nonrepresented/excluded State employees under then current State Department of Personnel
Administration rules detailed in the Caltrans Travel And Expense Guide.
3. General and administrative PROJECT overhead is unallowable under the Resources
Agency of California's Environmental Enhancement and Mitigation Program Procedures and Criteria
guidelines.
4. Progress payments will be allowed and may be made no less than monthly in arrears
based on PROJECT work performed and allowable incurred costs authorized as part of the PROJECT.
5. APPLICANT may not commence any reimbursable PROJECT development work or
services or PROJECT capital outlay work before both program adoption and funding allocation by the
California Transportation Commission and execution of this PROJECT agreement by both
APPLICANT and STATE. Reimbursement is subject to annual appropriation by the Legislature in the
State Budget for the Environmental Enhancement and:Mitigation Program Fund.
6. APPLICANT will be reimbursed as promptly as fiscal procedures will permit upon receipt by
STATE's Local Program Accounting office in the Division of Accounting of signed invoices. One
original and two copies of the invoice (in the format shown in Exhibit C)shall be submitted after the
performance of work for which APPLICANT is billing. Invoices shall include detailed backup
information supporting the work performed. The final invoice must contain the final cost and all credits
due STATE, including credits or reimbursements due STATE for any equipment purchased under the
provisions of Article V of this Agreement. Progress and final invoices as well as the Final Project
Expenditure Report shall be mailed to the Caltrans District Director,ATTN: District Local
Assistance Engineer(DLAE),for invoice approval. The DLAE will forward invoices to the
Accounting Office for payment.
ARTICLE IX—Cost Principles
1. APPLICANT agrees to comply with: 1) The Resources Agency of California's
Environmental Enhancement and Mitigation Program Procedures and Criteria, and 2) California
Transportation Commission Guidelines for Allocating, Monitoring, and Auditing of Local
Assistance Projects.
Page 7 of 17
EEM-2010(035)
2. APPLICANT agrees to comply with the following, as applicable:
A) The Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition
Regulations System, Chapter 1, Part 31 et seq., which shall be followed to determine the
allowability of individual items of cost for which reimbursement is sought.
B) 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments and Office of Management and Budget
Circular A-87, Cost Principles for State and Local Governments..
C) Office of Management and Budget Circular A-122, Cost Principles for Nonprofit
Organizations, which shall be used to determine costs of grants, contracts and other
agreements with nonprofit organizations (excluding colleges,universities and hospitals).
D) Office of Management and Budget Circular A-21, Cost Principles for Educational
Institution establishing principles for determining costs applicable to grants, contracts,
and other agreements with educational institutions.
E) Office of Management and Budget Circular A-110, Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher Education,
Hospitals and other Nonprofit Organizations.
3. Any costs for which payment has been made to APPLICANT that are determined by
subsequent audit to be unallowable under Paragraphs 1 and 2 of this Article IX are subject to repayment
by APPLICANT to STATE.
4. Should any conflict exist between the STATE guidelines as described in Paragraph 1 and
2 of this Article IX, the following order will prevail and be applied as follows: 1)Resources Agency of
California's Environmental Enhancement and Mitigation Program Procedures and Criteria; 2)
California Transportation Commission Guidelines for Allocating, Monitoring, and Auditing of Local
Assistance Projects, 3) 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31 et seq.; 49
CFR, Federal Acquisition Regulations System, Part 18, Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Government; OMB A-21, Cost Principles for
Educational Institutions; OMB A-110, Uniform Administrative Requirements for Grants and
Agreements with Institutions of Higher Education, Hospitals and Other Nonprofit Organizations; OMB
A-122, Cost Principles for Nonprofit Organizations; and OMB A-87, Cost Principles for State and Local
Government.
5. Any subcontract entered into as a result of this Agreement shall contain all the provisions
of this Article IX.
6. Should APPLICANT fail to reimburse moneys due STATE within thirty (30) days of
demand, or within such other period as may be agreed between the parties hereto, STATE is authorized
to withhold future payments due APPLICANT from any source, including but not limited to, the State
Treasurer,the State Controller and the California Transportation Commission.
Page 8 of 17
EEM-2010(035)
ARTICLE X-Subcontracting
1. APPLICANT shall perform the work contemplated with resources available within its
own organization and no portion of the work pertinent to this Agreement shall be subcontracted without
written authorization by STATE, except that which is expressly identified in APPLICANT's Cost
Proposal(Exhibit Al).
2. Any subcontract in excess of$25,000, entered into as a result of this Agreement, shall
contain all the provisions stipulated in this Agreement and shall be applicable to all subcontractors.
3. Any substitution of subcontractors must be approved in writing by STATE.
4. Any subcontract entered into as a result of this Agreement shall contain all the provisions
of this Article X.
ARTICLE XI••Insurance
1. If the scope of APPLICANT services will not require APPLICANT or a subcontractor to
enter upon STATE highway right of way, then the APPLICANT is not required to show evidence of
general comprehensive liability insurance.
2. In the event that APPLICANT or an agent, contractor or subcontractor of APPLICANT
will be present or working on STATE right of way, prior to commencement of the work described
herein, the APPLICANT shall furnish to STATE a Certificate of Insurance stating that there is general
comprehensive liability insurance presently in effect for APPLICANT and/or its agents, contractors, and
subcontractors who will be working (in any manner) on STATE property with a combined single limit
(CSL)of not less than one million dollars ($1,000,000)per occurrence.
3. The Certificate of Insurance must provide:
A. That the insurer will not cancel the insured's coverage without 30 days prior written
notice to the STATE.
B. That the STATE, its officers, agents, employees, and servants are also included as
additional named insureds, but only insofar as PROJECT operations under this
Agreement are concerned.
C. That STATE will not be responsible for any premiums or assessments on the policy.
4. APPLICANT agrees that all bodily injury liability insurance or self-insurance required
herein shall be in effect at all times during the term of this Agreement. In the event said insurance
coverage expires at any time or times during the term of this Agreement, APPLICANT agrees to
provide, at least thirty (30) days prior to said expiration date, a new Certificate of Insurance or
Certificate of Self-Insurance evidencing coverage as provided for herein for not less than the remainder
of the term of the Agreement, or for a period of not less than one (1) year. New Certificates are subject
to the approval of STATE and Department of General Services. In the event APPLICANT fails to keep
coverage as herein provided in effect at all times, STATE may, in addition to any other remedies it may
have,terminate this Agreement upon the occurrence of such event.
Page 9 of 17
EEM-2010(035)
5. If APPLICANT is self-insured,the EEM PROJECT APPLICANT shall submit a
Certificate of Self-Insurance asserting that APPLICANT is covered for all purposes of liability for all
work performed hereunder. STATE and APPLICANT acknowledge that only one Certificate of Self-
Insurance will be required and that APPLICANT must maintain that level of Self-Insurance [not less
than one million dollars ($1,000,000)].It is also understood that STATE,its officer, agents,employees,
and servants, are included as covered for all purposes insofar as the operations of APPLICANT under
this Agreement are concerned.
ARTICLE XII-Miscellaneous Provisions
1. Neither STATE nor any officer or employee thereof is responsible for any injury,
damage, or liability occurring by reason of anything done or omitted to be done by APPLICANT under
or in connection with any work, authority or jurisdiction conferred upon APPLICANT under this
Agreement. It is understood and agreed that APPLICANT shall fully defend, indemnify and save
harmless STATE and all of its officers and employees from all claims, suits or actions of every name,
kind and description brought forth under, including, but not limited to, tortious, contractual, inverse
condemnation and other theories or assertions of liability occurring by reason of anything done or
omitted to be done by APPLICANT under this Agreement. STATE reserves the right to represent itself
in any litigation in which STATE'S interests are at stake.
2. APPLICANT, and the agents and employees of APPLICANT, in performance of this
Agreement, shall act in an independent capacity and not as officers, employees or agents of STATE.
3. Following written notice and at least thirty (30) days to cure, STATE may terminate this
Agreement with APPLICANT should APPLICANT fail to perform the covenants herein contained at
the time and in the manner herein provided. In the event of such termination, STATE may proceed with
the PROJECT work in any manner deemed proper by STATE. If STATE terminates this Agreement
with APPLICANT, STATE shall pay APPLICANT the sum of allowable costs due APPLICANT under
this Agreement prior to termination, provided, however, that the cost of PROJECT completion to
STATE shall first be deducted from any sum due APPLICANT under this Agreement, and the balance,
if any, shall then be paid APPLICANT upon demand.
4. Without the written consent of STATE, this Agreement is not assignable by
APPLICANT, either in whole or in part.
5. Time is of the essence in this Agreement.
6. No alteration or variation of the terms of this Agreement shall be valid unless made in
writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein
shall be binding on any of the parties hereto.
7. The consideration to be paid APPLICANT, as provided herein, shall constitute full
compensation for all of APPLICANT's allowable approved costs and expenses incurred in the
performance hereof,unless otherwise expressly so provided.
Page l0 of 17
EEM-2010(035)
8. APPLICANT warrants, by execution of this Agreement, that no person or selling agency
has been employed or retained to solicit or secure this Agreement upon an agreement or understanding
for a commission,percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by APPLICANT for the purpose of securing
business. For breach or violation of this warranty, STATE has the right to annul this Agreement without
liability, pay only for the value of the work actually performed, or in its discretion, to deduct from the
price of consideration, or otherwise recover from APPLICANT, the full amount of such commission,
percentage, brokerage,or contingent fee.
9. In accordance with Public Contract Code Section 10296, APPLICANT hereby states
under penalty of perjury that no more than one final unappealable finding of contempt of court by a
Federal court has been issued against APPLICANT within the immediate preceding two-year period
because of APPLICANT's failure to comply with an order of a Federal court that orders APPLICANT to
comply with an order of the National Labor Relations Board.
10. APPLICANT shall disclose any financial, business, or other relationship with STATE,
the Resources Agency, or the California Transportation Commission (CTC) that may have an impact
upon the outcome of this Agreement. APPLICANT shall also list current associates or clients who may
have a financial interest in the outcome of this Agreement.
11. APPLICANT hereby certifies that it does not now have nor shall it acquire any financial
or business interest that would conflict with the performance of this Agreement.
12. APPLICANT warrants that this Agreement was not obtained or secured through rebates,
kickbacks or other unlawful consideration either promised or paid to any STATE or Resources Agency
employee. For breach or violation of this warranty, STATE shall have the right, in its sole discretion,to
terminate the Agreement without liability, to pay only for the work actually performed, or to deduct
from the Agreement price or otherwise recover the full amount of such rebate, kickback, or other
unlawful consideration.
13. This Agreement is subject to any additional restrictions, limitations, conditions, or any
statute enacted by the State Legislature or the Federal Government that may affect the provisions,terms,
or funding of this Agreement in any manner.
14. This Agreement shall terminate on June 30, 2014 --with project completion and final
invoicing done by April 30, 2014 --or upon the earlier completion of PROJECT, whichever is first
earlier in time, except that APPLICANT duties regarding the continuing operations and maintenance of
PROJECT property, credits due STATE, and indemnification of STATE shall survive.
Page 11 of 17
EEM-2010(035)
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized officers.
STATE OF CALIFORNIA DEPARTMENT OF APPLICANT
TRANSPORTATION
By' 11 .. ; . ,' By
April Nitsos, Senior Transportation Engineer
Office of Special and Discretionary Programs
Division of Local Assistance 17
1120"N" Street, Sacramento, California 95814 APPLICAN Re resentative Name and Title
C1 of (vperfin�
Agencj
10 300 Writ. 4.1,coves
Ad ress
Cti erfin 0 01- Cl l,`1 f
City, State, ZIP
f). 777 33'5
Telephone No.
+1mm1) -ey . or-
E-mail address
Page 12 of 17
EEM•2010(035)
EXHIBIT A-PROJECT DESCRIPTION AND FINANCING
APPLICANT: City of Cupertino
PROJECT NAME : Stevens Creek Corridor Park&Restoration Project,Phase 2
COUNTY: Santa Clara
I. Project Location: Final segment of the trail between Stevens Creek Blvd. and McClellan Rd within
the City of Cupertino.
II. Project Description of Work Proposed (as set forth in Application No.): 035
Project will extend the regional multi-use Stevens Creek Trail,restore riverine and
riparian habitat along 1,400 feet of Stevens Creek, and open 5 acres of parkland to the public.
Approximately 1-1/4 acres will be planted with native riparian,wetland and oak woodland
plantings, a local orchard opened to public access with a new trail,and wildlife habitat improved.
The creek channel will be widened to create 550:Feet of pool and riffle stream habitat.A new
backwater wetland area will be constructed. Existing concrete and riprap channel armoring will be
removed from the creek and the banks vegetated with native plantings.
III Proposed Project Funding:
A. ESTIMATED TOTAL PROJECT COST: $2,695,000.00
Is this amount different from that set forth in the APPLICATION?
Yes X No
B.PROJECT FINANCING:
State Funding $ 245,000.00 = 9.10%of total project cost*
Applicant Funding $2,450,000.00 =90.90%of total project cost
Federal Funding(if any) $ 0.00
Total Project Funding $2,695,000.00 =100.00% of total project cost
*NOTE: This percentage is referred to in this Agreement as the STATE's PROPORTIONATE SHARE
of costs and will be used as the reimbursement ratio on the project.
C. The maximum amount of STATE funding approved by the CTC that may be contributed to the
PROJECT shall not exceed$245,000.00.
Page 13 of 17
EEM-2010(035)
EXHIBIT Al -COST PROPOSAL
(This must be completed by APPLICANT for all projects, except for acquisition-only projects, and
returned with Applicant-State Agreement to the STATE.)
APPLICANT: City of Cupertino
PROJECT NAME: Stevens Creek Corridor Park&Restoration Project,Phase 2
COUNTY: Santa Clara
Direct Labor: $0
(labor rates must be calculated as actual dollar earned per hour and cannot include overhead costs)
Classification Name • Hours Rate Total
Project Manager
(a,
Total Direct Labor Costs
Fringe Benefits:
(Benefits,such as vacation,medical, and retirement, etc.,must be calculated as rates earned per
hour)
Other Costs: (itemize with description, quantity, unit price,and total cost;estimates acceptable)
Travel Costs
Equipment and Supplies
Other Direct Costs
Subcontractor Costs: See attached sheets
(attach scope of work and detailed cost estimate for each subcontractor)
Volunteer Services: $0
Classification Name Hours Rate Total
Volunteer
A
Total Volunteer Labor Costs
Donations: $0
(itemize with description,quantity, unit price, and total cost;estimates acceptable)
Materials $0
Other See attached sheet
Total Project Cost: $2,695,000
See attached sheet
Page 14 of 17
EEM-2010(035)
COST ESTIMATE
Stevens Creek Corridor Park and Restoration Project,Phase 2
Environmental Enhancement&Mitigation Program
City&Local/ Calif.River
Project EEMP Regional Parkways
Item Description Unit/Otv. Cost Grant Match Grant
Design and Permitting
Design Fees $420,000 $203,000 $217,000
Design and Permitting Subtotal $420,000 $0 $203,000 $217,000
Services
Native Plantings-collect&contract grow 2000 EA 25,000 25,000
$25,000 $0 $25,000 $0
Construction Contract Work
Site Preparation
Mobilization LS 150,000 25,000 15,000 110,000
Prep activities(prepare SWPPP,tree protection,etc.) LS 29,000 10,000 19,000
Dewatering System LS 100,000 20,000 80,000
Site Preparation Subtotal $279,000 $35,000 $54,000 $190,000
Stream Restoration
Site Prep LS 47,000 22,000 25,000
Clear&grub;remove invasives;remove&stockpile riprap
Demolition and Disposal 530 CY 120,000 57,000 63,000
Trees for Woody Habitat Elements&Channel Restoration LS 11,000 11,000
Earthwork LS 90,000 10,000 80,000
Construction of Pool-Riffle Sequences,&Log jam/fish structures LS 100,000 50,000 50,000
Channel Restoration Materials&Placement LS 153,000 53,000 100000
Construct Log Crib Wall 60 LF 80,000 15,000 65,000
Temporary Measures&Erosion Control LS 50,000 50,000
Stream Restoration Subtotal $651,000 $0 $268,000 $383,000
Replace Sewer Line
Relocate&Replace Sewer Line for creek widening LS 90,000 0 20,000 70,000
Replace Sewer Line Subtotal $90,000 $0 $20,000 $70,000
Creek Restoration Planting-riparian&adjacent upland $55,000 15,000 40,000
Install Restoration Plants 1,100 EA
Watering&Maintenance Period LS
Riparian&Adjacent Upland Habitat Planting Subtotal $55,000 $0 $15,000 $40,000
Trail&Amenities Construction
Install Trail incl.baserock and subgrade 10,800 SF 162,000 40,000 72,000 50,000
Trailside Golf Protection Fence 375 LF 40,000 0 40,000
Excavation and Grading LS 20,000 20,000
Walkway to Bus Slop LS 16,000 16,000
Low Retaining Wall LS 16,000 16,000
Trail Entry&conforms at planter strip LS 9,000 9,000
New Footbridge over creek 1 EA 175,000 120,000 25,000 30,000
Footbridge Span&Placement
Footbridge Foundation
Renovate Parking Lot for trail users LS 120,000 120,000
Drainage modifications LS 13,000 13,000
Crosswalk;roadway reconfig.,median modifications LS 40,000 40,000
Wood Fencing 250 LF 15,000 15,000 I
Trail Construction Subtotal $626,000 $160,000 $346,000 $120,000
Trailside&Habitat Planting 72,000 45,000 27,000 0
Native Trailside&Habitat Plantings 9C0 EA
Install Irrigation System LS
Maintenance Period Allow
Trailside&Habitat Planting Subtotal $72,000 $45,000 $27,000 $0
Trailside Amenities
Signage(directional,rules®s,donor) LS 18,000
Amenities 14,000 5,000
Entry gate at drive/access control LS
Dog Waste Pickup Bag Dispensers 2 EA
Trash and Recyclables Receptacles 4 EA
Benches 4 EA
Subtotal Trailside Amenities $32,000 $5,000 $27,000 SO
Construction Contract Subtotal $1,805,000 $245,000 $737,000 $733,000
Construction Change Order&Contingency Allowance $195,000 0 $195,000 0
Construction Management,Inspection&Testing $225,000 0 $30,000 $195,000
First Year Monitoring $25,000 0 $25,000 0
Total Cost Estimate $2,695,000 $245,000 $1,235,000 $1,215,000
• Page 14A of 17
EEM-2010(035)
EXHIBIT B
FAIR EMPLOYMENT PRACTICES ADDENDUM
1. In the performance of this Agreement, APPLICANT will not discriminate against any
employee for employment because of race, sex, color, religion, ancestry, or national origin.
APPLICANT will take affirmative action to ensure that employees are treated during employment,
without regard to their race, sex, color, religion, ancestry, or national origin. Such action shall
include, but not be limited to, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. APPLICANT shall post in
conspicuous places, available to employees for employment, notices to be provided by STATE
setting forth the provisions of this Fair Employment section.
2. APPLICANT will permit access to the records of employment, employment
advertisements, application forms, and other pertinent data and records by the State Fair
Employment and Housing Commission, or any other agency of the State of California designated by
the awarding authority, for the purposes of investigation to ascertain compliance with the Fair
Employment section of this Agreement.
3. Remedies for Willful Violation:
a) The State may determine a willful violation of the Fair Employment provision to have
occurred upon receipt of a final judgment to that effect from a court in an action to
which APPLICANT was a party, or upon receipt of a written notice from the Fair
Employment and Housing Commission that it has investigated and determined that the
APPLICANT has violated the Fair Employment Practices Act and had issued an order,
under Labor Code Section 1426, which has become final, or obtained an injunction
under Labor Code Section 1429.
b) For willful violation of this Fair Employment Provision, STATE shall have the right to
terminate this Agreement either in whole or in part, and any loss or damage sustained
by STATE in securing the goods or services hereunder shall be borne and paid for by
APPLICANT and by the surety under the performance bond, if any, and STATE may
deduct from any moneys due or the thereafter may become due to APPLICANT, the
difference between the price named in the Agreement and the actual cost thereof to
STATE.
Page 15 of 17
EEM-2010(035)
AGREEMENT EXHIBIT C - SAMPLE OF EEM INVOICES
(Prepare On Applicant's Letterhead)
Dale of Invoice
(For all Invoices)
Department of Transportation Billing No.:1,2,or Final
Division of Local Assistance Invoice No:Local Agency's Invoice No.
Name,District Director Project Completion Date: Final Date or
District Local Assistance Engineer "Ongoing"(if not final)
Tax Identification#
Street Number County:County Name
City,CA Zip Code Project Location
Attn:District EEM Coordinator Advantage ID
Reimbursement for Environmental Enhancement and Mitigation(EEM)funds is claimed pursuant to State Project No.
EEM-20XX(XXX),Applicant State Agreement No. ,Agreement date
Description of work covered by this invoice:
Preliminary Construction Acquisition and Construction
Engineering Engineering Incidentals
Total Costs to Date**
— I
Less:Nonparticipating Costs to
Date
Total State Participating Costs to
Date
Reimbursement Ratio % %
Total Reimbursement
Less:Amount Claimed on Previous
invoice
Amount this Invoice
Total Amount this
Invoice
**Note:The State will make the payment(s)on a reimbursement basis of its proportionate share of actual costs incurred on the project to
date after expenses and debts have been paid by the applicant;timesheets,mileage logs,invoices,receipts,cancelled warrants,and other
documents as applicable are required by the State as supporting documentation prior to each reimbursement.
I certify that the work covered by this Invoice has been completed in accordance with approved plans and specifications;the costs shown
in this Invoice are true and correct;including retention as reflected above,is due and payable accordance with the terms of the agreement.
Signature,Title and Unit of Local Agency Representative Phone No.
Contact Name(for questions about this invoice) Phone No.
Page 16 of 17
EEM-2010(035)
AGREEMENT EXHIBIT D - FINAL PROJECT EXPENDITURE REPORT
(Prepare On Applicant's Letterhead)
Name, District Director
Department of Transportation
Street or P.O.Box
City,CA,Zip Code
Attention:Name, District Local Assistance Engineer
Final Proiect Expenditure Report
Description/Location of Work:
Project Completion Date:
Expenditure Authorization:
Project Number:
State-Local Entity Agreement Number:
State Funds Allocated:
Expenditure Incurred: Total$
A. Payment to Contractor
(Attach final pay estimate)
B. Other Project Costs:
Preliminary Engineering
Construction Engineering
Any Additional Construction
Right of Way(Capital and Support)
C. Liquidated Damages
D. Outstanding Contractors Claims
E. Others(specify)
Sources and Amounts of Additional Funds Used:
State Funds Allocated But Not Used:
CERTIFICATION
I hereby certify that:
To the best of my knowledge and belief,the information in this report is a true and accurate record of
project costs. The work was performed in accordance with the CTC approved scope and state funding
for the project.
Title and Unit of Local Agency Representative
PROJECT VERIFICATION: This verification of completion also constitutes approval to pay costs
shown in the Final Invoice included in the Report of Expenditures. I have reviewed the job site and
found the project completed in accordance with the scope and description of the project authorization
document.
District Local Assistance Engineer Date:
Page 17 of 17
EEM-2010(035)
OFFICE OF THE CITY CLERK
�• CITY HALL
10300 TORRE AVENUE•CUPERTINO, CA 95014-3255
�5
1.I9j, TELEPHONE:(408) 777-3223• FAX: (408)777-3366
WEBSITE:www.cupertino.org
CUPERTINO
June 12, 2013
David J. Powers & Associates, Inc.
1871 The Alameda, Suite 200
San Jose, CA 95126
Attn:Jodi Starbird
Re: Consultant services for Stevens Creek Corridor Park and Restoration Phase 2
Enclosed for your records is a fully executed original copy of the agreement with the City
of Cupertino. If you have any questions, please contact the Public Works Department at
(408) 777-3354.
Sincerely,
Jx `
Kirsten Squarcia
Deputy City Clerk
Enclosure
cc: Public Works
ACORD TM CERTIFICATE OF LIABILITY INSURANCE Dat8/8/ 2013YR)
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed.If SUBROGATION IS WAIVED,subject to the terms
and conditions of the policy,certain policies require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of
such endorsement(s).
PRODUCER CONTACT Sherry Young
Heffernan Professional Practice Insurance Brokers NAME:
License No.0564249 A/CONo,EXt: 714-361-7700 FAX : 714361-7701
6 Hutton Centre Drive,Suite 500 EMAIL SherryY @heffins.com
Santa Ana,CA 92707 ADDRESS:
INSURERS AFFORDING COVERAGE NAIC#
INSURED INSURER A: Travelers Property Casualty Ins Co of Am 25674
David J.Powers and Associates Inc. INSURER B: Hanover American Insurance Co. 36064
1871 The Alameda,Suite 200 INSURER C: Continental Casualty Co. 20443
San Jose,CA 95126 INSURER D:
INSURER E:
INSURER F:
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT-OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE
ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF
SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS
LTR INSR WVD MWDD MM/DD
A GENERAL L LIABILITY X X 6806824L268TIL12 12/03/2012 12/03/2013 EACH OCCURRENCE $2,000,000
X COMMERCIAL GENERAL LIABILITY DAMAGE RENTED
PREMISES S(Ea occurrence)ce)
$1,000,000
(
CLAIMS-MADE 51 OCCUR MED EXP(Any one person) $10,000
PERSONAL&ADV INJURY $2,000,000
GENERAL AGGREGATE $4,000,000
GEN'L.AGGREGATE LIMIT APPLIES PER PRODUCTS-COMP/OP AGG $4,000,000
POLICY X PROJECT LOC $
A AUTOMOBILE LIABILITY BA6820L15312GRP 12/03/2012 12/03/2013 COMBINED SINGLE LIMIT $1,000,000
(Ea accident)
JX A ANY AUTO BODILY INJURY(Per person) $
ALL OWNED AUTOS SCHEDULED BODILY INJURY(Per accident) $
AUTOS
HIRED AUTOS
IX NON-OWNED PROPERTY DAMAGE $
AUTOS (Per accident)
UMBRE LLA LAB X OCCUR EACH OCCURRENCE $1,000,000
EXCESS LIAB CLAIMS-MADE CUP2C590211 1247 12103/2012 12/03/2013 AGGREGATE $1,000,000
DIED RETENTION $ $
WORKERS COMPENSATION X I WC STATU- OTH-
AND EMPLOYERS'LIABILnY YIN TORY LIMBS ER
ANY PROPRIETOR/PARTNER/EXECUTIVE/ E.L.EACH ACCIDENT $1,000,000
B OFFICER/MEMBEREXCLUDED? ❑ WA x WZ398163000(I 01/13/2013 01/13/2014
(Mandatory in N.H.) E.L.DISEASE-EA EMPLOYEE $1,000,000
M yes,describe under DESCRIPTION OF
OPERATIONS below E.L.DISEASE-POLICY LIMB $1,000,000
PROFESSIONAL LIABILITY
PER CLAIM C WA EEH28834749C 03/26/2013 03/26/2014 AGGREGATE $1,000,0000 0
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,If more space is required)
Projects as on file with the insured including but not limited to Job#13-069,Tree Protection Ordinance.City of Cupertino,its City Council,boards and
commissions,officers,employees and volunteers are named as additional insured on General Liability policy if required by written contract per attached
endorsement.Waivers of subrogation apply to General Liability and Workers compensation policies.
CERTIFICATE HOLDER CANCELLATION
SHOJLD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
City of Cupertino EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN ACCORDANCE WITH
Community Development Dept. THE POLICY PROVISIONS.
Attn:Gary Chao AUTHORIZED REPRESENTATIVE
10300 Torre Ave.
Cupertino,CA 95014
ACORD 25(2010/05) 01-8-2010 ACORD CORPORATION.All rights reserved.
The ACORD name and logo are registered marks of ACORD
POLICY NCB_: 6806824L268TIL12 COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BLANKET ADDITIONAL INSURED
(ARCHITECTS, ENGINEERS AND SURVEYORS)
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A The following is added to WHO IS AN B. The following is added to Paragraph a. of 4.
INSURED(Suction II): Other Insurance in COMMERCIAL
GENERAL LIABILITY CONDITIONS(Suction
Any person or organization that you agree in a IV):
'contract or agreement requiring insurance'to
include as an additional insured on this However,if you specifically agree in a"contract
Coverage Part, but only with respect to liability or agreement requiring insurance" that the
for "bodily injury, -property damage" or insurance provided to an additional insured
`personal injury"caused, in whole or in part,t y under this Coverage Part must apply on a
your acts or omissions or the acts or omissions primary basis, or a primary and non-
of those acting on your behalf: contributory basis, this insurance is primary to
other insurance that is available to such
a. In the performaance of your ongoing additional insured which:covers such additional
operations; insured as a named insured, and we will not
b. in connection with premises owned by or share with the other insurance,provided that:
rented to you;or
c. In connection with "your work' and (1) The "bodily injury or "property damage"
included within the "products-completed' for which coverage is sought occurs:and
operations hazard".
(2) The 'personal injury" for which coverage
Such person or organization does not qualify is sought arises out of an offense
as an additional insured for "bodily injury", committed,-
`property damage- or "personal injury" for
which that person or organization has after you have entered into that "contract or
assumed liability in a contract or agreement. agreement requiring insurance". But this
insurance still is excess over valid and
The insurance provided to such additional collectible other insurance, whether primary,
insured is limited as faows: excess, contingent or on any otter basis, that
is available to the insured when the insured is
d. This insurance does not apply on any an additional insured under arty other
basis to any person or organization for insurance.
which coverage as an additional insured
specifically is added by another C. The following is added to Paragraph 8.
endorsement to this Coverage Part. Transfer Of Rights Of Recovery Against
Others To Us in COMMERCIAL GENERAL
e. This insurance does not apply to the LIABILITY CONDITIONS(Section IV):
rendering of or fagure to render any
"professional services"_ We waive any rights of recovery we may have
against any person or organization because of
f. The limits of insurance afforded to the payments we make for "bodily injury,
additional insured shall be the limits which "property damage" or"personal injury" arising
you agreed in that`contract or agreement out of"your work"performed by you,or on your
requiring insurance" to provide for that behalf, under a "contract or agreement
additional insured, or the limits shown in requiring insurance° with that person or
the Declarations for this Coverage Part, organization_ We waive these rights only
whichever are less. This endorsement where you have agreed to do so as part of the
dices not increase the limits of insurance "contract or agreement requiring insurance"
stated in the LIMITS OF INSURANCE with such person or organization entered into
(Section III)for this Coverage Part. by you before, and in effect when, the 'bodily
CG D3 8109 07 0 2007 The Travelers Companies, Inc. Page 1 of 2
Includes copyrighted material of Insurance Services Office,Inc.,with its permission.
Injury" or "property damage" occurs, or the "personal injury" is caused by an offense
.personal injury'offense Is committed. cornmitted:
D. The following definition is added to a. After you have entered into that contract or
DEFINITIONS(Section V): agreement;
"Contract or agreement requiring insurance" b. While that part of the contract or
means that part of any contract or agreement agreement is in effect-,and
under which you are required to include a
person or organization as an additional insured c. Before the end of the policy period-
on this Coverage Pert,provided that the'bodily
injury"and"property damage- occurs,and the
CG D3 8109 07 ®2007 The Travelers Companies,Inc. Page 2 of 2
Includes copyrighted material of Insurance Services Office,Inc.,with its permission-
WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY
WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT—CA
This endorsement changes the policy to which it is attached effective on the
inception date of the policy unless otherwise stated.
This endorsement effective on 011/3/2013 at 12:01 am standard times forms a
part of Policy No. WZ3981630000
of the Hanover American Insurance Company
issued to: David J. Powers &Associates, Inc.
Premium (if any)$
Authorized Representative
We have the right to recover our payments from anyone liable for an injury covered by
this policy. We will not enforce our right against the person or organization named in
the Schedule_ (This agreement applies only to the extent that you perform work under a
written contract that requires you to obtain this agreement from us)
You must maintain payroll records accurately segregating the remuneration of your
employees while engaged in the work described in the Schedule_
The additional premium for this endorsement shall be 2.000% of the California workers'
compensation premium otherwise due on such remuneration.
Schedule
Person or Organization
ANY PERSON OR ORGANIZATION V=WHOM YOU AGREE IN WRITING TO WAIVE YOUR
RIGHT TO RECOVER AGAINST THEM YOU NVIST AGREE TO THIS WAIVER PRIOR TO THE
DATE OF LOSS
Job Description: Projects as on file with the insured
WC 252 040 84