13-166 Mimi Braatz & Associates, Professional Services for Stevens Creek Corridor Park & Restoration OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE•CUPERTINO, CA 95014-3255
TELEPHONE: (408)'777-3223•FAX: (408)777-3366
WEBSITE:www.cuportino.org
CUPERTINO
June 6, 2014
Mimi Braatz and Associates
651 Willow Glen Way
San Jose, CA 95125
Re: Amendment to agreement for consultant services.
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,
Andrea Sanders
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Public Works
Q '
CITY OF
FIRST AMENDMENT TO CONSULTANT SERVICES
AGREEMENT BE'T'WEEN THE CITY OF CUPERTINO AND
CUPERTINO MIMI BRAATZ AND ASSOCIATES FOR
PROFESSIONAL SERVICES
This First Amendment to the Consultant Services Agreement between the City of
Cupertino and Mimi Braatz and Associates, for reference dated May 9, 2014, is by and
between the CITY OF CUPERTINO, a mun:'icipal corporation (hereinafter "City") and
Mimi Braatz and Associates, a California corporation, whose address is 651 Willow
Glen Way, San Jose, CA 95125, (hereinafter "' Consultant"), and is made with reference
to the following:
RECITALS:
A. On September 23, 2013, an agreement was entered into by and between
City and Mimi Braatz and Associates for signage and graphics design services
(hereinafter"Agreement").
B. City and Consultant 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 section of the Agreement is modified to read as follows:
The term of this Agreement shall commence on the date this agreement is
executed and shall terminate on December 31,,2014.
2. SERVICES TO BE PERFORMED section of the Agreement is modified to read
as follows:
Consultant shall perform services set forth in Exhibit A of the Agreement and the
further services set forth in Exhibit A-1, which is attached hereto and incorporated
herein by this reference.
3. SCHEDULE OF PERFORMANCE
Services of Consultant are to be completed according to the schedule set out in
Exhibit B-1 which is attached hereto and incorporated herein by reference.
4. COMPENSATION section of the Agreement is modified to read as follows:
The maximum compensation to be paid to Consultant under this agreement shall
not exceed Twenty One Thousand Seven Hundred Fifty Dollars ($21,750.00). The rate
City of Cupertino—Mimi Braatz&Assoc. Page 1 of 2
Amendment No.1
of payment is set out in Exhibit C=1, which are attached hereto and incorporated herein.
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.
IN WITNESS 'WHEREOF, the parties hereto have caused this modification of
Agreement to be executed.
Mimi Braatz and Associates CITY OF CUPERTINO
A Municipal Corporation
BX - By
Die or of u is Works,Timm Borden
Title :47
Date Z
Date
RECOMMENDED FOR APPROVAL:
By
P.W. Project Manager,Gail Seeds
APPROVED AS TO FORM:
By JLU�
Carol Korade, City Attorney
ATTEST:
BY
Grace Schmidt, City L4erk
Total Amount,as amended$21,750.00
Amendment Amount$8,250.00
Account No.427-9134-9300
City of Cupertino-Mimi Braatz&Assoc. Page 2 of 2
Amendment No.1
r
EXHIBIT A®1
SCOPE ®F S3 ERVICIES
Services that have been added via this Amendment: No. 1 are anticipated to consist of tasks noted
below. Tasks A, B, C and D are as noted in the original Agreement.
TASK B-1
Provide project management for additional signage- order, additional sizes and additional quantities
including text, layout, graphics, and materials as requested by City. Refine proposed signage order
as needed based on feedback. Provide project management for signage delivery.
TASK E
Provide ordering, fabrication, delivery and installation of bronze plaque approximately 18" x 24" in
accordance with project requirements and deadlines. Plaque to have raised border and text, dark
oxide background, and be mounted via hidden studs. Provide related proof reviews, oversight of
fabrication, and field oversight of installation. Installation to be on existing stone plinth at
Stocklmeir property. This task includes all labor, hardware, sales taxes, delivery fees, and markups.
TASK F
Provide map exhibits of Stevens Creek Corridor including the new `Phase 2' project site and the
adjacent sites it links to at Blackberry Farm Park and McClellan Ranch Preserve, suitable for use for
dedication ceremony and public information purposes, clear and legible at letter size, similar to
exhibits used for Phase 1 project. Work includes artwork, production and project management.
TASK G
Provide design, layout, photo work, drafts for review, graphics files suitable for printing production,
proof check, and related actions, for dedication ceremony invitations, programs, and
fliers/advertisements. Prep flier/advertisement for submittal to selected publication as requested.
City of Cupertino—Mimi Braatz&Assoc
Amendment No.1 Page 3
EXHIBIT B-I
SCHEDULE
Schedule for services shall be completed as follows:
Complete design services and specifications for sign placards (Task A and B):
By January 15, 2014 unless otherwise acceptable to City
Assist City with fee proposals, ordering, production, delivery& installation of signs (Task C):
October 2013 through February 2014 for sign placards and per project construction schedule,
unless otherwise acceptable to City.
January to June 2014 for plaque and per dedication and opening schedule, unless otherwise
acceptable to City.
Complete design services for bronze plaque (Tasl:D):
By May 15, 2014 unless otherwise acceptable to City
Complete bronze plaque fabrication, installation sand associated coordination (Task E):
May and June 2014
Complete map exhibits/handouts(Task F):
By June 23, 2014 unless otherwise acceptable to City.
Complete dedication invitations and fliers (Task G):
By June 3, 2014 unless otherwise acceptable to City.
Complete dedication programs (Task G)
By June 20, 2014 unless otherwise acceptable to (lity.
City of Cupertino—Mimi Braatz&Assoc
Amendment No. 1 �, Page 4
EXHIBIT� 7� ( �7 r 777���C°7�1
FE SCYJ EDU LJE
Basic Services
Task A
The fees for the scope of Task A work tasks described in Exhibit A are as follows:
Not to exceed$1,250
Task B
The fees for the scope of Task B work tasks described in Exhibits A and A-1 and as authorized in
additional service directive#1 are as follows:
Not to exceed$8,500
Task C
The fees for the scope of Task C work tasks described in Exhibit A are as follows:
Not to exceed$2,950
Task D
The fees for the scope of Task D work tasks described in Exhibit A are as follows:
Not to exceed$1,600
Task E
The fees for the scope of Task E work tasks described in Exhibit A-1 are as follows:
Not to exceed$3,750
Task F
The fees for the scope of Task F work tasks described in Exhibit A-1 are as follows:
Not to exceed$500
Task G
The allowance for fees for the scope of Task F work tasks described in Exhibit A-1 are as follows:
Not to exceed$2,200
Basic Services Fee: Not to exceed$20,750
Reimbursable Expenses
Customary reimbursable expenses such as plotting,printing,reproduction, shipping, 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 Basic Services.
Additional Services allowance: $1,000
Total Contract Fee:
Not to exceed 21 750
City of Cupertino—Mimi Braatz&Assoc
Amendment No.1 Page 5
OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366
WEBSITE:www.cuperlino.org
CUPERTINO
November 4, 2013
Mimi Braatz & Associates
651 Willow Glen Way
San Jose, CA 95125
RE: Agreement
Enclosed for your records is a fully executed original copy of your agreement with the
City of Cupertino. If you have any questions, please contact the Public Works Department
at (408) 777-3354.
Sincerely,
Dorothy Steenfott
Senior Office Assistant
cc: Public Works
Enclosure
CITY OF
AGREEMENT BETWEEN CITY OF CUPERTINO AND
MIMI BRAATZ & ASSOCIATES
FOR PROFESSIONAL SERVICES FOR
STEVENS CREEK CORRIDOR PARK& RESTORATION
J' HIS AGREEMENT, for reference dated Segternber23,2013,js�by and between CITY OF
PERTINO, a municipal corporation(hereinafter referred to as"City"), and Mimi Braatz and Associates,a
California corporation, whose address is 651 Willow Glen Way,San Jose,CA 95125 (hereinafter referred to
as"Consultant"), and is made with reference to the folloNving:
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 signage and graphics design
services 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 August 31, 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.
3. SCHEDULE OF PERFORMANCE:
The Services of Consultant are to be completed according to the schedule set out in Exhibit B, titled
"Schedule",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
Thirteen Thousand Five Hundred Dollars ($13,500.00)._The rate of payment is set out in Exhibit C, titled "Fee
Schedule",which is attached hereto and incorporated herein.
Consultant shall furnish to City a detailed statement of f:he work performed for compensation during the
term of this Agreement. Consultant may submit monthly invoices for interim progress payments during the
City ol'Cupertino—Mimi Braatz dr.Assoc.Agreement
Signage and Graphics Design Services 1
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 plan.3,vacation and sick leave are available from City to
Consultant, its employees or agents. Deductions shall riot 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 i terns, if 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 Mimi Braatz.
City Of Cupertino—Mimi Braatz&Assoc.Agreement
Signage and Graphics Design Services 2
11. HOLD HARMLESS:
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, 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 tl.�is 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, 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: $1.00,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
City of Cupeitino—Mimi Biaatz&Assoc.Agreement
Signage and Graphics Design Services 3
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.
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 snake 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 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 [fie performance of this Agreement.
City ol'Cupertino—Mimi Braatz&Assoc.Agreement
Signage and Graphics Design Services 4
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 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.
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 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
City of Cupertino—Mimi Bnaatz&Assoc.Agreement
Signageand Graphics Desi.-n Services 5
act in good faith, then Consultant shall reimburse City for all reasonable costs and expenses associated with
the supplemental examination or audit.
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
10300 Torre Ave.
Cupertino CA 95014
Attention:Director of Public Works
All notices,demands, requests, or approvals from City to Consultant shall be addressed to
Consultant at:
Mimi Braatz&Associates
651 Willow Glen Way
San Jose,CA 95125
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 deemE!d 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.
21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules and regulations
enacted or issued by City.
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.
City of Cupertino—Mimi,Braatz&Assoc.Agreement
Signage and Graphics Design Services 6
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.
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 g'ift 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.
28. COMPLIANCE WITH FUNDING AGREEMENT:
Consultant and Consultant's subconsultants and.subcontractors shall comply with applicable
requirements of City's Applicant-State Agreement No. 04-20-035 Environmental Enhancement and
Mitigation(EEM)Program. A copy of the agreement marked Exhibit D is attached hereto and incorporated
herein by reference.
City of Cupertino—Mimi Braatz&Assoc.Agreement
Signage and Graphics Dcsign Services 7
P.O. No.:
OVV �- �
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CONSULTANT CITY OF CUPERTINO
A Municipal Corporation
i
By ��'a �. L(G �� Bye
v Timm Borden,Director of Public Works
Name
Date_,r4b Z
Title
Date
Tax I.D. No.: 7-7DaI b 745
A R VED AS TO FORMr
Address: 'q
(Pa Carol]:<orade, City Attorney
ATTEST:
(&
Grace Schmidt, City Clerk
Contract Amount:$13,500 3 0
(Account No. 427-9134-9300: $8,000
Account No.427-9112-9300: $5,500
City of Cupertino—Mimi Braatz&Assoc.Agreement
Signage and Grapbics Design Services 8
EXHHiIT A
SCOPE OF SERVICES
Services are anticipated to consist of tasks noted below.
TASK A
Meet to review and confirm desired signage with City.
Visit site to review signage locations and needs.
Develop detailed specifications for soliciting competitive fee proposals from potential suppliers, and
which are suitable for public agency use for grant-funded projects.
TASK B
Provide project management, design and artwork for new signage placards for a public park and
multi-use trail including text, layout and graphics. Provide revised and updated designs for existing
trail and park signage. Refine proposed signage as needed based on City and/or grantor feedback.
Provide input on siting and orientation of signs. New signs shall be compatible with existing signs
in place at Blackberry Farm Park.
Signage shall address:
• Rules & Regulations. Estimated quantity: 2
• Map. Creek corridor overview and `you are here' map, similar- to Phase I overview map with
Phase 2 elements added. Estimated quantity: 4
• Park Directional. Estimated quantity: 1
• Trail Directional. Estimated quantity: 3
• Bike safety&warning. Walk bike in bridge, slow/stop ahead and similar. Estimated quantity: 3
• `Icon' graphic signs. Similar to Phase 1 Icon signs. Estimated quantity: 48
• Golf advisory. Estimated quantity: 3 trail, 3 golf.
• Grantor acknowledgement. Similar to Phase 1. signs with updated funders & logos. Estimated
quantity: 4, 2 each of 2 sizes
• Bronze Plaque: cast bronze with City&trail logos. Approx. size: 18x25". Estimated quantity: 1
TASK C
Provide project management, design and artwork for bronze dedication plaque.
TASK D
Assist City with solicitation of fee proposals, vendor selection, and oversight of ordering,
production supervision, delivery and installation of signs and plaque.
City of Cupertino—Mimi Braatz,&Assoc.Agreement
Signage and Graphics Design Services 9
EXHIBIT B
SCHEDULE
Schedule for services shall be completed as follows:
Complete design services and specifications for sign placards (Task A and B):
By October 28, 2013 unless otherwise acceptable to City
Complete design services for bronze plaque (Task D):
By November 27, 2013 unless otherwise acceptable to City
Assist City with fee proposals, ordering, production, delivery and installation of signs and
plaque (Task C):
November and December 2013, and per project construction schedule, unless otherwise
acceptable.to City.
City of Cupertino—Mimi Braatr&Assoc.Agreement
Signage and Graphics Design.Services 10
EXHIBIT C
FEE SCHEDULE
Basic Services
Task A
The fees for the scope of Task A work tasks described in Exhibit A are as follows:
Not to exceed $1,250
Task B
The fees for the scope of Task B work tasks described in Exhibit A are as follows:
Not to exceed $5,500
Task C
The fees for the scope of Task C work tasks described in Exhibit A are as follows:
Not to exceed $2,950
Task D
The fees for the scope of Task C work tasks described in Exhibit A are as follows:
Not to exceed $1,6.00
Basic Services Fee: Not to exceed $11,300
Reimbursable Expenses
Customary reimbursable expenses such as plotting, printing, reproduction,,shipping, 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 Basic Services.
Additional Services allowance: $2,200
Total Contract Fee:
Not to exceed S 13,500
City of Cupertino—Mimi Braatz&Assoc.Agreement
Signage and Graphics Dcsign Services 1 1
EXHIBIT D
FUNDING AGREEMENT
CITY OF CUPERTINO & ,,;'rATE OF CALIFORNIA
APPLICANT-STATE AGREEMENT NO. 04-20-035
ENVIRONMENTAL ENHANCEMENT AND MITIGATION (EEM) PROGRAM
City of Cupertino—Mimi Braatz&Assoc.Agreement
Signage and Graphics Design Services 12
EXHIBIT D
FOR CALTRANS USE:
Iheieb :certi .0 'an rriy own personal'knoNOed etliat=budeeted funds.are avail'able,for-this.encumbrance.
Akl,i: &Ak> Accounting Officer Date Ab, r ,
Chapter Statutes item Fiscal Pfograrn BC Category IF und :
Year Source
$ i t t a ait t��.i rat _a.x� �� � �'�r�t.,�<$�
APPLICANT-STATE AGREEMENT NO:'04-26-035-
.. -
ENVIRONMENTAL ENHANCEMENT ACND MITIGATION (EEM).PROGRAM:
STATE PROJECT NUMBER: EEM-2010(035)
2010--2011 FISCAL. YEAR ALLOCATION
Ad?✓antage:Project,ID;:04:00021079,
THIS AGREEMENT made:effective this Der,_ember.'1 S, :20'1.1 ,. by'and bettseen the City. of.
Cupertino,'hereinafter referred.to as "APPLICANT".. and the State of California, acting by and through
the California.Department of Transportation(.Caltraas}, hereinafter referred to as:"STATE'
WITNESSETH.
WHEREAS; as "provided by Streets and. Highways Code ,Section, 1;64`:5:6', Senate Bill. 117
(Statutes of 199,9. Chapter 7394,estab1 ished the.EE111,Program as a,pern anent program *funds have been;
allocated to APPLICANT by thde California Tran§66itation. Commission (CTC). after-the :PROJECT
submitted by APPLICANT 'had been recommended for funding- by "the Resources Agerncy , arid, as
described in the'application (APPLICATION);,
WHEREAS, STATE and APPLICANT noiv desire to enter into an Agreem,ent rel.atiye to fun
and cost-sharing,6n the descrihed PROJECT.
NOW*. THEREFORE, the parties Agree,as follows:
ARTICLE I-Project Administration,and General Provisions
1. PROJECT shall mean that EEM PROTECT described in the APPLICATION submitted
by APPLICANT and summari2ed in Exhibit A to this Agreement including.financing information as set
forth in Section III of Exhibit A to this Agreement.
Pagr I.of P
.Egr,4420.10035)
EXHIBIT D
2 The PROJECT submitted by APPLICANT,.together:with all conditions And assurances
contained therein,;and;specifically including informatio'won.how the PROJECT shall.be financed!,:are
made an express partof'this=Agreement: Should any,conflict.existbetW&en the,APPLICATION and the
Agreement;,tlie Agreement shall,preva il.
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-
ow ed right-of-way, APPLICANT shall comply Stith,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 1o, a Budget Reduction on the project .required by the State.
Resources.Agency; APPLICANT is obligated' to complete PROJECT without dow,nscoping it, unles's
'specifically authbrized to do so in writing, by the;State Resources.Agency: This Will be-accomplished
by A. PPLICANT supp.lementing.PR.OJECT costs with another funding source.or'by fi'ndinga`less costly
way to complete the PROJECT
6 The estimated total .cost of PROJECT is as-shown 'in Section Ill.of.Exhibit.A: While
APPLICANT inay, with the-STATE I's written approval, award a contrapt'in,an:amount in exceeding the
estimated total PROJECT cost.specified in Section,111-A of Exhibit A of the Agreement, the'allbcation
of STATE::funds-'for PROJECT will;never he gr'ate`r Ethan the amount specified in Section 1117Qof
Exhibit A of th>s,Agreement.
7 Section III'of Exhibit-A.specif es,the_APPLICANT'.s estimated total PR.OJECT,cost, each
party's.proportionate'pereentage:of those casts and.th'e maximum amount of STATE funds,the CTC has:
authorized for the PROJECT. The STATE's.proport ovate share .of..funding s a,certain percent of the
estimated,total'PROJECT cost-and•approved scope of the:PROJECT.($TATE's PROPORTIONATE.
SHARE) and kill be used # the reimburserrient ratio on.the projecf.,In the.,event the, actual, cost of
PRO. JECT ,exceeds the estimated' total cost of the PROJECT; the. STATE; shall pay 'its
PROPORTIONATE SHARE of the costonly 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 ofTROJECT decreases"for any
reason from the estimated total PROJECT cost specified .i'n Section ]II of Exhibit,A, the allocation of
STATE, funds will .be decreased proportionately, with any-decrease.in APPLICA NT's participating
contribution so that.the STATE'S PROPORTIONATE SHARE of costs relative to TOTAL PROJECT
COST remains as.specified in Section II]-13 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;xN�ritten
rio'6 .ofpr'oposed 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 Agreem'ertt ik ich,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.XIL paragraph.6 of this Agreement:
Page 2'of_17
EEM-20 10(035)'
EXHIBIT D
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'ra.ta progress payments in arrears maybe.made, on a
reimbursement basis upon submittal :of invoices by APPLICANT and approval- by STATE of the-
PROJECT costs incurred. Pro rata pay.'inents will 'be:based.on the amount of the STATE fund transfer'
authorized'herein'in proportion to the total cost.of PI'QJECT, including APPLICANT contributions. An
invoice.format-document is included;as Exhibit C.
1,1. 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 execuied,before
PROJECT work may commence.,
'1`2. APPLICANT. shall comply with; 'the requirements of the FAIR EMPLOYMENT'
PRACTICES:: ADDENDID-M (Exhibit B), and fuii:her agrees that any agreement & service. contract'
entered irito.by APPLICANT with;a-th'ird party for performance of wrork 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 f le.wrth STATE one (1) original Final Project,Expenditute,
Report: The Final Project Expenditure .Report must be. submitted with the: 'final invoice on the
PROJECT.:
.ARTICLE',11'.-Rights-of=Way,
1. The acquisition,, clearance; and; i:rriprovement 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 itern of total.PROJECT costs if included.as part of the
PROJECT scope of work:
2.. APPLICANT shall perform, all PROJECT right-of Jay activities in accordance with
applicable'State Taws 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,construetion, 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 Arrangement:,; with the owners of such utilities for their protection,
relocation, or removal. I;f utility relocation is required within STATE right-of-way, APPLICANT shall
conform.to STATE standard's, policies and procedures.. If utility relocation is outside of-STAT;E.right-
o&way;APPLICANT shall conform with local. goverrunent policies.
5. APPLICANT shall certify as to,:legaa 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
advertisemernt for bids for construction/development of PROJECT.
Pane 3 of 17T
EEM-2010(035)
EXHIBIT D
6. If right=of=moray acquisitiorn, and clearance costs are included as a participating .item of
PROJECT costs; STATE shall provid .1ftinds only for purchase of the actual right-of--way required fora
PROJECT: If AAPPLICANT' acquires right of-ti,ay i�Thich includes excess bland, STATE: wilt not
participate i ',the.c. 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-'exce's's land, for either
the pro:rata fair-market,°value of that excess`at t} e tune of disposal or, if"that property. is retained by
APPLICA,N.T.'the�piro-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:
E. 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 Districts 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 aval;l times while,working Within STATE right of way.
I Pursuant to.the authority: contained in Section 591* of the Vehicle Code. 'STATE has
determined that withih s"uch.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, t3, 14, and 15 ofthe
Uehicle`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 travelingpublic from,injury-and damage
from such vehicles when performing work withint:STATE right of
ARTICLE..IV-Inspeetion of Work
.1. APPLICANT and any of its PAOJECT'subcontractors shall#rmit STATE-t6 review and
inspect PROJECT activities at all reasonable times, during-the performance period of this Agreement,
including reviews and inspection on a daily-basis.
Page 4,of 17
EEM7 2010(035)
EXHIBIT D
ARTICLE'-,.Ecinignient 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
coiisultant.servicm 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 musfbe adequately justified.
3.. Any.equipment.purchased as a.result of this Agreement is subject d paragraph,3 of this
Article;V.APPLICANT-shall maintain,an inventors, of all nonexpendable property, defiried as property
having: a; useful life: of. at least,gTwo years and, an acquisition cost of $500°:0 r 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,fait market value or sell such equipment.
at. the best price obtainable- a public on 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. sh"all be deterirrined,: 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 ' equipment;the terms-.and
conditions of;such,sale must„be approyed in advance by STATE.
ARTICLE VI= Managernent:ind Maintenance of Property
I APPLICANT will operate, manage and maintain into the, future all' property acquired,
developed, rehabilitated,°,or restored;wiih funds transferred through tfiis Agreeitiem 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 STATE.and
within 45 days after receiving notice to.AAPPLICAI'1T by STATE, shall.reimburse.STAT.E.ari amounf at
least equal to the amount,of STATE`s funding participation in PROJECT together with all accrued
interest Treasurer'spooled.r coney investment account.
I All real 'property; or rights thereto, acquired with these funds shall be subject to an
appropriate Torin'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 :Mate 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,, arid the design and constfucti.on. of improvements in
proportion,to the total purchase price of the: re;fl. property, or rights thereto, and. the cost of all
improvements made prior to the time of sale.
Paee;S of 17
EEM-2016(035)
EXHIBIT D
ARTICLE 11-.Reteintion oURecords/A'udit Review Procedures
l. For the-purpose of determining,compliance With Public Contract Code 10115, et seq.. and
Title 21j 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-
tinaes 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,o.fAPPLICANT-that are•pertinentto-.this Agreement for audits examinations, excerpts, and
transactions,.;and;copies:thereof shall be.,fur' ished'by APPLICANT or its.contractors, if requested.
2.; Any dispute concernil g a g iesiibn of fact arising under an inter' post audit of this
Agreement €hat:'is norsatisfactorily disposed of by agreement..shall be rev ewed by the Chairperson of
the STATE Audit Review Committee,(ARC).. The ARCwill'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 indusfry-whose role.:will be advisory in nature only and without voting
rights.
%1. Noi later than 30 days after:issuance of the final:audit,report,APPLICAI�TT 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' fof`reversal. A meeting by the. ARC' will be scheduled if the
Chairperson concurs, that further review ;is warranted. Affter the meeting, the ARC will make
recommendations°to°the Chief Deputy. Director: The Chief Deputy Director will make the final decision
for. STATE one (1)month following"the receipt of the:notification of dispute or following the
ARC meeting,recommendation,date',whichever is later inaime:.
4.; iN6ither, the pendency of a dispute nor its consideration by STATE. will excuse
APPLICANT from full and timely perfoimance,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 thins Article V11.,
.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 LocgLAssistance Pro.cedures:Manual;.Chapter 10. "Consultant Selection", Exhibit
1:0-N"Accounting and..Auditing.Guidelines for Contracts with Caltrans"._
Page 6 of 17
EEM-20;10(035)
EXHIBIT D
ARTICLE VIII`—AlloNN-able_Costs and Payments:
T. 'The method;of reimbursement.authorind by ;STATE.for PROJECT expenditures made
by,APPLICANT_under this,Agreement will�be based on actual costs incurred: STATE Will reimburse
the S'TATE'S )?ROPORTION�ITE°SHARE of actual. costs (based on; Section III of Exhibit 'A and
including Tabor costs,.employee benefits; travel,;equipment rental,costs, and other.direct costs),,incurred,
by APPLICANT in performance of the work. APPLICANT-Will h6t,, e reimbursed'far actual costs that
exceed the.estimmated wage rates; employee ben ts,:travel, equipment,rental, fringe benefit,-rates; and
other, .estimated costs set forth in APPLICANC's cost proposal. (Exhibit. A.Y). upless additional,:
reimbursement is provided for by Agreement amendment.. In the event that STATE determines
additional work,beyond that specified in.APPLI.CA1\1.T';s,cost>proposal and this Agreement is required to.
produce "a 'satisfactory PROJECT, the actual costs-, reimbursable. by STATE may be increased by
Agreement.amendmentto accommodate that additional work: The.maximum,total!costs as specified in
Section 111 of Exhibit A of`this: Agreeument. shall not be. exceeded,unless authorized by Agreement
amendment.
2, 13winnbutserientfot transportation xid subsistence costs shall not exceed the rates to be
paid nonrepres:en,ted/excluded State employees u,Mer then. current State. D;epaitmeit of Personnel
Administration rules detailed,in the Caltraris Trb:Vel And,Expense Guide.
3.. General and administrative, PROJECT overhead is unallowable under the :Resources
Agency`of California's Efivironinental,Enhancernerst-and,kfitigai on :Program Procedures and Criteria
guidelines.
4. Progress payments;will be:allowed and may be.made no less tham!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 &. elopme,n't_ work or
Services or'PRt)JECT capital outlay work.before_both program adoption..and funding allocation by the
California Transportation. Commission and. :execution of tl�iss, PROJECT' agreement' by both
APPLICANT'and STATE. Reimbursement is subject to annual appropriation by the Legislature in the
State Budgeffor the.Environmental Enhancement and Ivlitigatib Program Fund..
6. APPL':1C:ANT 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 bilging; Invoices shall include detailed".backup
information supporting the work performed. The.fina)myp!ce,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 aind'.final invoices a&well.as the Final .Project
Expenditure Report shall.be,mailed to the Caltrans District I;sireetor,.ATTN; District Local
Assistance Engineer(DLAE), for invoice approval. The DL.AE'Will forward invoices to the
Accounting Office for payment.
ARTICLE IX--Cost Principles
I. APPLICANT agrees to comply -a iih: l) The Resources Agency of Cal6mia's
Environmental Enhancement and.111 tigation j'rogram Procedures,and Criteria; and 2) Calif
Transportation Commission Guidelines ,for. Allocating, !Llonitoring, and, Auditing of Local
Assistance.Projects.w 11
Page 7 of 17
GEM-?E?10{035)
EXHIBIT D
2,, APPLICANT agrees to,comply with.the following,.ast applicable!
.
r _
A) The Contract Cost: Principles and Procedure"§, 48 CFR,. Federal` Acquisition',
Regulations System; Chapter I. Part 3l et seq., which:shall.be followed to determine"the
allowabilitS of individual items:of cost for.Which reimbursement is:sought:
P)'49 CFR. Part.1,8, Uniform Administrative Requirements:for Grants and-Cooperative
.Agreemenis to State.and Loc.al..Govenunents and. Office of MI nagement and. Budget.
Circular A=87,=.Cost Principles for.State and Local Govemments..1.C), Office of Management .and .Budget Circular A-]22;, Cost Principles for Nonprofit.
•Organizations;, which shall:..be, used'to determine costs o(,grants,. contracts and' other.
agreements with.nonprofit-organizations.(excluding colleges, universitiesand: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 a&e-ements•with.educational institutions.
E) Office of Management 'and Budget Circula_r. .A-110; Uniform Administrative;
Requirements for Grants and Agreements with: Institutions of 'Higher* Education,
Hospitals.and other Nonprofit Organizations.
Any costs for: which ,payment has been_made to APPLICANT•that are determined by,
subsequent.audit-.to be unallowable under Paragraphs I 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 I anti
2..of this,,Article IX, the,following,order will prevail and be applied'as follows- 1):Re'soufbes.Agency of
California's Envirownental Enhancement and ?litigation Prograiri• Procedure's and Criteria; .*2)
California Transportation Commission Guidelines.forAllocating; 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-1,10;; 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 provisi ons
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 'Stat'e
Treasurer:the State Controller and the California Transportation Commission..
Pan 8 o '17
EFM 2010(035)
EXHIBIT D
ARTICLE X- Subcontracting,
I. APPI ICANT shall perform ,the -work' contemplated with'resources::available within its.
owni organization-and no portion of the work.pertirnentt6 this Agreement shall be subcontracted`without
written authorization by STATE,, except. that which is,expressly identified in. APPLICANT'ss Cost,
Proposal (Exhibit M),,
provisions y .p � PP _ ... ' all:
2. Any. in excess.of $25,000; entered :into as a`result of'thrs Ag'reeriierit, shall
contain all the sty ulated in thi's Aereement.and shall;be applicable to all.subcontractors.
.3. Any substitution of subcontractors:nalist be:approved in writing by STATE.
4. Any subcontract entered into as a,result of ih,i,s.Agreement;shall.contain. all•.the provisions
of this'Article X.
ARTICLE X-1 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 w required to:sho 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 May.°prior to corn iiencement of the work described
Herein; the APPLICANT'shall furnish to STATE a.Certificate of Insurance stating that there is generat.
comprehensive liability insuranmpresently.in effitct 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(51:000,000)per occurrence.
3. The Certificate of Insurance:must provide:
A: That the .insurer will not:cancel 'the insured's eove.rage without.30 days prior Written
notice to the STATE.
B.. That the S`I"ATE; its officers, a.gents,. employees; and sei;vants 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 bodihi injury liability insurance or self-insurance required
Herein shall be in effect at all times.durine 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 evidenc ng:coverage as provided for herein for not less than the remainder
m
of the ter of the Agreement, or for a period of not`less than one (I)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]7
EEM-2010(035)'
EXHIBIT D
S., If APPLICANT is self-insured,the EEM PROJECT`APPLICANT.shal I submit a
Certificate of Self-Insurance asserting that APPLICANT is,covered for all purposes of liability.for all
work performed hereunder. STATE'and.A:PPLICANT.acknowrledge that only one Certifi cate'of Self-
Ins urance will be required and ihatAPPLICANT-must maintain that level-"of Self-Insurance [not less-
than one million dollars($1;000,000)]. It is.also understood thatSTATE, its offcer;•agents; employees,
and servarits;areincluded as.covered for all purposes insofar.as the operations of
APPLICANT under
this Agreement are.concerned.
ARTICLEA1.1_'Sliscellaneous.Provisions
1 Ne*ither,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,APPLICANTT under
or in connection with,,zny work,, authority or jurisdiction conferred upon APPLICANT under tl is
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.nol limited-`to, tortious,, contractual, inverse
condemnation arid., other theo'nes 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 actin an independent.capacity and:not as officers, employees-or agents of STATE:
3. Following written notice,and at'least.tl irty (30),days to-'cure, STATE may terminate this.
Agreement with A.PP:LI`CANT', 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 mariner,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, than 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
APPLICAN.T,'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 of 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 heeof,' unless otherwise_expressly so provided.
Page IUbf 1:7
EEM-20 l0(035j
P
EXHIBIT D
i
8;. APPLI CANT�warrants, by exec tion of'this.Agreement, that no person or.sellin'.agency
has been employed;or retained to solicit or secure this.Agreement upon an agreement or understanding
for.'a commission,percentage, brokerage;gr continl,f nt:fee', eXcepting bona fide.°er"riployees nr`bona fide
established, comrnercial or selling agencies maintained: by APPLICANT for the purpose of'securing
business. For breaoh,or violation of this'warranty STATE.has therGght to annul this Agreement withoia"t:
liability; pay only for the value,ofthe work actually performed, or in.its discretion, to;deduct from the
price of'considerafion. or otherwise recover from..APPLICANT, the,full amount-of such commission,
percentage, brokerage; or contingent fee.
9. In accordance with. Public; Contract_Code Section.; 14296,,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_agaitist,A.P:P. L1CAI`IT,within the immediate preceding`t� 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. ResourcesAgericy.. or.. California Transportation, Commission (CTC) t40 may have an".impaet_.
upon the outcome of.'this Agreement. APPLICANT shall also list current associates or clients who may
have a'fldancial,interest in the,outcome of"this Agfeemetit:
Ll. APPLICANT,hereby certifies that lt.,does not,now have nor-shall it acquire any financial
..
or business interest that would conflict with the perrormance_of this.Agreement..
12'; APPLICANT warrants ihatthis Agreeriment was not obtained or.'secure&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 Ag eeirlent 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'Gdvernment that may affect the-provisions,terms;,
or funding of thls:Agreemen in any'mannerf
1,4': This:Agreement-shall terminate on Jttne'30, 20.14_--N+'ith 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 retarding the continuing operations and maintenance of
PROJECT property;credits.due STATE,and ndemnifcation of STATE shall'sunive.
Pagel I.6f L7
EEM2010(035)
EXHIBIT D
IN,WITNESS WHEREOF,the parties have executed this,Agreement`b'' their duly authorized-officers.
STATE OF CALIFORNIA 'DEPARTMENT OF APPLICANT
TRANSPORTATION
By, , ar By
April Iitsos, Senior Transportation Engineer
Office of Special:and Discretignary,Programs
Division of Local Assistance
1 120 `N";Street;,Sacramenfo, California 95.814 APPLTCAN Re .resentaUve Name and Title
Agenc , _
Ad ress }
V' I rfikw t-f T -
Citv,. tate;ZIP
4 Y� 777 M
Telephone No.. —
0'
E-mail address:
Page 13'of 171
EEM-2010(035)
EXHIBIT D;
EXHIBIT'A-PROJECT DESC;'RIPTION AND FINANCING
APPLICANT,i City of C.upertinc!
PROJECT NAME,:, Stevens Creek Corridor Park&Restoration Project, Phase 2.
oJ
COUNTY: Sdnta.Clara,
.1., Project'Location: Final se'gtenfof the trail between Stevenstreek.Blvd. and McClellan Rd within
the;City of Cupertino.
11. Project Description of Work Proposed,( s set forth in Application No.,) 035
Project will th®ional rhulti_u§e Stevens Creek,Tr4il restore.'rivefine and
riparian habitat along 1,400 fedi-of Stevens Creek,and or)en.5'.acres-ofpark-ldrid to the public.
Approximately 1.-114.acres will be planted with nafiNe!ripaj-ian,,Aietldhd and oak woodland
w
plantings, a local orchard opened.to public acces.s'with anew trail., and wildlife habitat improved.
The,creek.channelwill be widened to create 5
at 5 0.feet of pool and rifflestrearn habitat. Anew
back-water-wetland.area Will be constructed. Existing concrete and ripfqp chdriul'ai-,morink will be
removed froni the creek and,the banks�,eg6tated with native plantings:
III Proposed P roject Fundint
A. ESTINIATED TOTALPROJECT COST; S 2,695,000.100
Is this"amount,different,from that set forth in the APPL16ATION9
Yes X No.
B.PROJECT FIT�TAN(N16:,
State Funding: S. 245,000.'00 = §.l00X6of total pr0j'ect.cost*'
Applicant Funding S 2,45Q,0.00.00. 90.90%of total project cost
Federal Funding (if any) S 0.00
Total Project.Funding 1 2,69.510.00.00 =100.00%,of total project,cost
*NOTE: Th.iST' ercentagp-is referred to in this Agreement.as-the STATE's PROPORTIONATE-SHARE.
of costs and,will be.used as the reimbursernerit.ratio on the project.
C. The maximum amount of STATE funding a-
pproved by the CTC that,may be contributed to the
PROJECT shall-not exceed S,245,000.00.
Page 13 of 11
ELM1201 0(035).
EXHIBIT D
EXHIBIT:Al COST PROPOSAL
(This»lust be completed by 4PPLICAA'T for kll;projects; air ept for acquisition-only projects, and
returned w thApplicant-State-flgreemerzt to tl e.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 dollarearned pevhour 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 ds rates earned per
hour)
Other Costs::.(itemize'with:description;quantity;unit price, and total cost,estimatevacceptable)
Travel.Costs
Equiprrient.and Supplies
Other Direct.Costs
Subcontractor Costs: See attached sheets
(attach scope of work'and.detailed."cost'estimate for�eaeh`subcontractor).
Volunteer Services: $0.
Classification Name Hours: Rata Total,
Volunteer
C
C
Total.Volunteer::Lahor 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
E?age.IA'of 17-
EXHIBIT D
EXHIBIT B
FAIR EMPLOYMENT PRACTICES ADDENDUM
i
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 Employrr lent 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:
I
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 j
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.
i
I
f
Page 15 of 17
EEM-2010(035)
EXHIBIT D
AGREEMENT EXHIBIT C - SAMPLE OF EEM INVOICES
(Prepare On Applicant's Letterhead)
Date 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:
I
i
I
Preliminary Construction Aequisition'and Construction
Engineering Engineering Incidentals
Total Costs to Date**
Less:Nonparticipating Costs to
Date
I
Total State Participating Costs to
Date
i
i
i
Reimbursement Ratio % % % %
Total Reimbursement
I
Less:Amount Claimed on Previous
invoice I
Amount this Invoice
Total Amount this
Invoice
**Note:The State will make the payments)on a reimbursement basis of its proportionate share ofactual 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, j
Contact Name(for questions about this invoice) Phone No.
Page 16 of 17
EEM-2010(035)
EXHI]BIT D
AGREEMENT:EXHIBIT,,D - PENAL PROJECT EXPENDITURE REPORT`
(Prepare O»rf pplica�zt's.Letter.;head)
iMame; Distric1b rector
Department of Transportation
Street or.P.O.Box'
City,CA,Zip Code
Attention,A'ame; District Local Assistance Engineer:
Final Project Expenditure Report..
Description/Location of Work:
Project Completion Date.
Expenditure Authorization:
Project.TJumbef:
State-Local Entity Agreement.I`umber:
State Funds-Allocated:
Expenditure Incurred: Total S
A. Payment"to Contractor
;(Attach fn, l pay estimate)
B. Other Project Costs:
Prelimirualy'Engineering
Constriction Engineering'
Ariy Additional Construction
Rigti of Way(Capital and Support).
C-., Liquidated Damages.
D.Outstanding;Contractors.Claims
E...Oihers(specify)
Sources and Amounts of Additional Funds Used;
State Funds AllocatedBut bt.Used:
CERTIFICATION
I hereby certify that:
i
i To the,best of.my knowledge and belief;the in-ormation in this report is a true and accurate record of
project costs. The work`�vas performed in accordance with the CTC approved scope and state funding
for the project:
Title and Unit,of decal Agency Representative
PROJECT`V} RIFICATION: Tfiis verificatior_.i ofcompletion also constitutes approval to.'pay costs
shoo n in the'Final'Invoice included in the.Report of Expenditures: l have.reviewed,the job site and'
found the project completed in accordance with the scope and description of the project authorization.
document.
l: --
District Local Assistance Engineer Date:
Pave 17 of 17
}
EEA4-2ti i 0(n35)
I