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14-036 Ecological Concerns, Inc, for Horticultural Services for Stevens Creek Corridor Park restoration
Pb �M(S' �O3 CITY Of J�iii THIRD AMENDMENT TO CONSULTANT SERVICES CUPERTINO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND ECOLOGICAL CONCERNS INC. FOR HORTICULTURAL SERVICES This Third Amendment to the Consultant Services Agreement between the City of Cupertino and Ecological Concerns, Inc., for reference dated May 26, 2017, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and Ecological Concerns, Inc., a California corporation, whose address is 125 Walk Circle, Santa Cruz, CA 95060, (hereinafter " Consultant"), and is made with reference to the following: RECITALS: A. On February 1, 2014, an agreement was entered into by and between City and Ecological Concerns, Inc. for consultant services (hereinafter "Agreement"). Two amendments to the agreement dated for reference September 1, 2014 and September 7, 2015 were executed. 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. "SERVICES TO BE PERFORMED" section of the Agreement is modified to add the following language: Consultant shall also perform the services set forth in Exhibit A-3, which is attached hereto and incorporated herein by this reference. 2. "SCHEDULE OF PERFORMANCE" section of the Agreement is modified to add the following language: Services of Consultant which are described in Exhibit A-3 are to be completed according to the schedule noted in Exhibit C-3, which is attached hereto and incorporated herein by reference. 3. "COMPENSATION TO CONSULTANT" section of the Agreement, first sentence, is modified to read as follows: Services of Consultant which are described in Exhibit A-3 are to be compensated as noted in Exhibit B-3, which is attached hereto and incorporated herein by reference. The maximum compensation to be paid to Consultant under this agreement as City of Cupertino — Ecological Concerns Inc. Page 1 Amendment No. 3 amended shall not exceed One Hundred Five Thousand Nine Hundred Dollars ($105,900.00). 4. "TERM" section of the Agreement is modified as follows: The term of this Agreement shall terminate on December 31, 2018, unless terminated earlier as set forth herein or unless extended by mutual agreement in writing. 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. Ecological Concerns, Inc. CITY OF CUPERTINO A Municipal Corporation By By C Timm Borden, Director of Public Works Title Date 2-,)j17 Date RECOMMENDED FOR APPROVAL: By i�E/�/I V - Gail Seeds, Park Improvement Manager APPROVED AS TO FORM: Randolph Hom, City Attorney ATTEST: By Grace Schmidt, City Clerk Amendment No. 3 Amount, $32,000.00 Account No. 100-84813 700-702, 25,000.00 Account No. 427-90-881900-905, 7,000.00 City of Cupertino - Ecological Concerns Inc. Page 2 Amendment No. 3 PO n1115--(43 � O v 1S' % 3 EXHIBIT A-3 SCOPE OF SERVICES Services that have been added via this Amendment No. 3 are to consist of tasks noted below. Basic Services Tasks, Amendment No. 3 The city desires services by trained personnel knowledgeable in the installation, establishment and care of locally -native plant species. The following plant care activities will be provided for the upland, riparian and seeded/planted/planter bed areas of the project site: • Hand watering of non -irrigated plantings as needed. Watering frequency is to accommodate weather, temperature, day length, creek water level, site conditions, plant root ball size and depth, exposure, sun/shade/overstory presence, and other factors that affect plantings' water needs • Periodic heavy watering/drenching of container trees and larger/container size plant material as needed • Weeding of planting basins • Observation and recommendations on timing of irrigation for upland/irrigated areas • Troubleshooting and correction of minor irrigation problems [city staff to correct non -minor items] Adequate watering during establishment is the most critical task and is to be the top priority. As time allows, when the above tasks are handled, the following typical tasks may be undertaken and related tasks as acceptable to City: • Additional weeding outside of basins to help establishment of newly recruited native seedlings and control growth of non-native species. This may include weed -whacking or selective weeding of particular invasive species and/or nonnatives outside of planting basins. • Select pruning/trimming/shaping/staking • Removal of browse protection cages from plants in upper creek bank when not needed and from plants which outgrow cages • Broadcast native seed mix for erosion control or coverage. Additional broadcasting may be requested for infill, cover, wildflower sowing or other goals. Seed will be city -provided or may be billed as a reimbursable expense. • Continuing removal of invasive non-native plant species with a focus on creek channel and banks, then upland areas • Application of mulch materials City of Cupertino — Ecological Concerns Inc. Page 3 Amendment No. 3 Unanticipated planting establishment activities may be needed because this is a newly establishing restoration site in a dynamic riparian system. Any particular concerns or significant observations will be regularly reported to City's designated representative. The Scope of Services assumes that a complete watering effort requires 1.5 person -days and assumes the following level of effort for basic services: January 1 site visit, 2 -person crew or equivalent February, March and April 2 site visits, 2 -person crew or equivalent May 2.5 site visits, 2 -person crew or equivalent June 3 site visits, 2 -person crew or equivalent July, August and September 3 to 4 site visits, 2 -person crew or equivalent October 2.5 to 3 site visits, 2 -person crew or equivalent November and December 1.5 site visits, 2 -person crew or equivalent City of Cupertino — Ecological Concerns Inc. Page 4 Amendment No. 3 EXHIBIT B-3 COMPENSATION Fee for Basic Services described herein, not to exceed: $ 25,000.00 Allowance for Additional Services to be expended only upon written authorization by City Total Not -to -Exceed Fee, this Amendment No. 3: s 32,000.00 City of Cupertino — Ecological Concerns Inc. Page 5 Amendment No. 3 EXHIBIT C-2 SCHEDULE OF PERFORMANCE Services relating to establishment of native plantings for Stevens Creek Corridor Park and Restoration shall continue through December 31, 2018. The service period may be extended as acceptable to City. Services that have been added via this Amendment No. 3 are to be performed year round and specific timing may vary depending on rainfall, temperature, and other variable site conditions. Services are anticipated to be generally provided one to four days per month as described in Exhibit A-3. City of Cupertino — Ecological Concerns Inc. Page 6 Amendment No. 3 ACORNaDATE CERTIFICATE OF LIABILITY INSURANCE (MM/DD/YYYY) 6/15/2017 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 may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Christi Buchanan NAME: PHONrE o. Ex 855-662-2522 No:530-662-1710 CLCA Insurance Solutions E-MAIL ADDRESS: christi.buchanan@arm-i.com PO Box 1330 INSURERS AFFORDING COVERAGE NAIC # INSURERA:Wesco Insurance Company 25011 Woodland CA 95776 INSURED INSURER B Mercer Insurance Company 14478 INSURER C:Security National Ins Co 019879 Ecological Concerns Incorporated INSURER D Admiral Insurance Company 24856 125 Walk Circle INSURERE:United States Liability Insurance 25895 INSURER F: Santa Cruz CA 95060 COVERAGES CERTIFICATE NUMBER:04112017 REVISION NUMBER: THIS IS TO CERTIFY THAT THE 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 LTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF MM/DD/YYYY POLICY EXP MM/DDNYYY LIMITS X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 A CLAIMS -MADE � OCCUR DAMAGE TO RENTED 100,000 PREMISES Ea occurrence $ MED EXP (Any one person) $ 10,000 X Installation Floater X Y WPP122645402 1/1/2017 1/1/2018 PERSONAL &ADV INJURY $ 1,000,000 GENT AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 PRO - POLICY II ECT 1-1 LOC PRODUCTS - COMP/OP AGG $ 2,000,000 Installation Floater $ 25,000 OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ 1 , 000 , 000 BODILY INJURY (Per person) $ A X ANY AUTO AOSCHEDULED AUTOS AUTOS X Y WPP122645402 1/1/2017 1/1/2018 BODILY INJURY (Per accident) $ NON -OWNED HIRED AUTOS AUTOS PROPERTY DAMAGE $ Per accident Is Ix UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 3,000,000 AGGREGATE $ 3,000,000 B EXCESS LABCLAIMS-MADE DED I I RETENTION$ $ X 27305853 1/1/2017 1/1/2018 C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE MandaoMEnNH MBER EXCLUDED? � (Mandatory � ) N / A Y SWC1135805 1/1/2017 1/1/2018 X PER OTH- STATUTE ER E.L. EACH ACCIDENT $ 1 , 000 , 000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 D Pollution Liability FEI-ECC-23585-00 4/10/2017 4/10/2018 Occurence/Aggregate 1M/2M E Professional Liability SP 1562533 3/7/2017 3/7/2018 Occurence/Aggregate 1M/2M DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Cupertino, including its City Council, boards and commissions, officers, officials, agents, employees, consultants and volunteers is an additional insured as their interest may appear when required by written contract. The certificate holder will receive 30* days notice of cancellation. *10 days for non payment of premium. A waiver of subrogation applies in the certificate holders favor when required by written contract. Coverage is on a primary & non-contibutory basis. Commercial Excess policy is following form. City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3202 ACORD 25 (2014/01) INS025 r?014n11 I,ANL,r-LLA I JUN SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Gina Stanley/CHRIST © 1988-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Policy Number: WPP122645402 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BROADENED COVERAGE FOR CONTRACTORS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM A. PROPERTY DAMAGE TO BORROWED EQUIPMENT Paragraph (1), of j. Damage To Property, under 2. Exclusions, of SECTION I — COVERAGES COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY is amended to add the following: Paragraphs (3) and (4) of this exclusion do not apply to tools or equipment loaned to you, provided that they are not being used to perform operations at the time of the loss. With respect to "property damage" to borrowed equipment the following additional provisions apply: 1. The most we will pay for "property damage" to borrowed equipment is $100,000 for any and all such losses regardless of the number of: a. Insureds; b. Claims or "suits" brought; or c. Persons or organizations bringing claims or "suits". B. NON -OWNED WATERCRAFT EXTENSION Subparagraph (2) of g. Aircraft, Auto Or Watercraft, under 2. Exclusions, of SECTION I — COVERAGES, COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY is deleted and replaced with the following: This exclusion does not apply to: (2) a watercraft you do not own that is: (a) Less than 51 feet long; and (b) Not being used to carry persons or property for a charge. C. DAMAGE TO PREMISES RENTED TO YOU The last paragraph of 2. Exclusions of SECTION I - COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY is deleted and replaced with the following: Exclusions c. through n. do not apply to damage to premises while rented to you, or temporarily occupied by you with permission of the owner, caused by: 1. Fire; 2. Explosion; GL990078 Page 1 of 6 Ed 0912 3. Lightning; 4. Smoke resulting from such fire, explosion or lightning; or 5. Water. A separate limit of insurance applies to this coverage as described in Section III Limits of Insurance. This insurance does not apply to damage to premises rented to you, or temporarily occupied by you, with permission of the owner caused by: 1. Rupture, bursting, or operation of pressure relief devices; 2. Rupture or bursting due to expansion or swelling of structural components or the contents of any building or structure, caused by or resulting from water; 3. Explosion of steam boilers, steam pipes, steam engines or steam turbines. Paragraph 6. of SECTION III LIMITS OF INSURANCE is deleted and replaced with the following: Subject to paragraph 5. of SECTION III — LIMITS OF INSURANCE, the Damage to Premises Rented to You Limit is the most we will pay under COVERAGE A — BODILY INJURY AND PROPERTY DAMAGE LIABILITY. for the sum of all damages because of "property damage' to premises while rented to you, or temporarily occupied by you with permission of the owner, caused by: fire; explosion; lightning; smoke resulting from such fire, explosion , or lightning; or water. The Damage To Premises Rented To You Limit will apply at all "property damage' proximately caused by the same "occurrence", whether such damage results from: fire; explosion; lightning; smoke resulting from such fire, explosion, or lightning; or water; or any combination of any of these causes. The Damage To Premises Rented to You Limit will be the higher of: a. $300,000; or b. The amount shown on the Declarations for Damage To Premises Rented To You Limit. Paragraph a. of 9. "Insured Contract', under SECTION V — DEFINITIONS, is deleted and replaced with the following: An "Insured contract' means a contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage to premises while rented to you, or temporarily occupied by you with permission of the owner, caused by: fire: explosion; lightning; smoke resulting from such fire, explosion, or lightning; or water, is not an "insured contract". D. PROPERTY DAMAGE COVERAGE FOR PERSONAL PROPERTY WHILE IN YOUR POSSESSION Sub -paragraphs (3) and (4) of Paragraph j. Damage To Property, of 2. Exclusions. of SECTION I — COVERAGES, COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY do not apply to "property damage' to the property of others while in your possession. With respect to the insurance provided by this section of the endorsement, the following provisions apply: The limit of this coverage is $25,000 per "occurrence" and $25,000 aggregate in any annual policy period starting with the beginning of the policy period in the Declarations, regardless of the number of: a. Insureds; GL990078 Page 2 of 6 Ed 0912 b. Claims or "suits" brought; or C. Persons or organizations bringing claims or "suits". We will pay for damages on your behalf, only to the amount of damages for each "occurrence" on your behalf applies only to the amount of damages for each "occurrence" which are in excess of a $1,000 deductible. We may pay any part, or all of the deductible amount, to effect settlement of any claim or "suit" and, upon notification of the action taken, you shall promptly reimburse us for such part of the deductible amount, as has been paid by us. E. PROPERTY DAMAGE COVERAGE FOR TENANTS — REAL PROPERTY Sub -paragraph j. (5) Damage To Property, of 2. Exclusions of SECTION I — COVERAGES, COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY is deleted and replaced with the following: While under your care, custody or control we will pay for "property damage" to property of others arising out of operations incidental to your business when: Damage is caused by the insured; Damage occurs while in the insured's possession The most we will pay under this provision for loss or damage during the policy period is $25,000 per "occurrence" and $25,000 aggregate in any annual policy period starting with the beginning of the policy period in the Declarations. We will pay damages on your behalf, only to the amount of damages for each "occurrence" which are in excess of a $1,000 deductible. The limits of insurance will not be reduced by the application of such deductible amount. We may pay any part or all of the deductible amount to effect settlement of any claim or "suit" and, upon notification of the action taken, you shall promptly reimburse us for such part of the deductible amount as has been paid by us; or SUPPLEMENTARY PAYMENTS Paragraphs 1.b. and 1d. under SUPPLEMENTARY PAYMENTS — COVERAGES A AND B of SECTION I is amended as follows: a. In paragraph 1.b., the amount we will pay for the cost of bail bond is increased to $2,500 In paragraph 1.d., the amount we will pay for loss of earnings is increased to $500 a day. G. NEWLY ACQUIRED OR FORMED ORGANIZATIONS Paragraph 3.a. of SECTION II — WHO IS AN INSURED is deleted and replaced with the following: Coverage under this provision is afforded until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier. H. PAST PARTNERSHIPS AND JOINT VENTURES The following is added to SECTION II — WHO IS AN INSURED: GL990078 Page 3 of 6 Ed 0912 If you are an insured, as shown in the Declarations, you are an insured for your interest in a partnership or joint venture that ended prior to this policy -period. This insurance applies: a. Only to the extent of your interest in the partnership or joint venture. b. Only if no other similar insurance is available to you for your interest in the joint venture or partnership. The last paragraph of SECTION II —WHO IS AN INSURED is deleted and replaced with the following: Except as provided in H. PAST PARTNERSHIPS AND JOINT VENTURES, no person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. ADDITIONAL INSURED The following is added to SECTION II — WHO IS AN INSURED: Any person or organization with whom or with which you have agreed in writing in a contract or agreement that such person(s) or organization(s) shall be included as an additional insured on your policy is an additional insured. The contract must be executed before the "bodily injury or "property damage" occurs or the "personal injury" or "advertising injury' offense is committed, to name such person or organization as an additional insured, but only with respect to liability arising out any tenancy operation or use of equipment leased to you by such an additional insured. The following provisions apply to such additional insured: a. The limits of insurance afforded to the additional insured shall be the limits which you agreed to provide in the written contract, or the limits shown on the Declarations, whichever is less. b. The insurance afforded to the additional insured does not apply to: i. A ny "bodily injury" or "property damage" that occurs, or "personal injury' or "advertising injury" caused by an offense which is committed, after you cease to be a tenant in that premises; ii. Liability arising out of any premises for which coverage is excluded by endorsement; or iability arising out of structural alterations, new construction or demolition operations performed by or on behalf of such additional insured(s) The insurance afforded to the additional insured is excess over any valid and collectible insurance available to the insured, unless you have agreed in the written contract that this insurance must be primary or non-contributory with such other insurance. J. BROADENED NAMED INSURED Paragraph 1.d. of SECTION II — WHO IS AN INSURED is deleted and replaced with the following: The person or organization named in the Declarations, and any organization, other than a partnership, joint venture or limited liability company, of which you maintain ownership or in which you maintain the majority interest on the effective date of the policy. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. However, coverage for any such additional organization will cease as of the date, if any, during the policy GL990078 Page 4 of 6 Ed 0912 period, that you no longer maintain ownership of, or the majority interest in, such organization. K. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS The following is added to paragraph 6. Representations of SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS: Based on our reliance on your representations as to existing hazards, if you unintentionally fail to disclose any such hazards prior to the beginning of the policy period of this coverage part, we shall not deny coverage under this coverage part because of such failure. However, the provision does not affect our right to collect additional premium or to exercise our right of cancellation or nonrenewal in accordance with applicable state insurance laws, codes or regulations. L. BROADENED NOTICE OF OCCURRENCE The following is added to paragraph 2 Duties in the Event of Occurrence, Offense, Claim or Suit of SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS: Notice of an "occurrence" or of an offense which may result in a claim covered by this policy, the failure to report such "occurrence" to us at the time of the "occurrence shall not be deemed a violation of this condition unless such "occurrence" or offense becomes known to. you, or one of the following if designated by you to give such notice: your "executive officers" (if you are a corporation), one of your partners who is an individual (if you are a partnership), one of your managers (if you are a limited liability company), or an "employee" (such as an insurance, loss control or risk manager or administrator)., However, you or your designated representative must give us notice as soon as practicable after being made aware that the particular claim. b. Knowledge by any other "employee" of an "occurrence" or offense does not imply that you also have such knowledge. c. This provision does not apply as respects the specific number of days within which you are required to notify us in writing of the abrupt commencement of a discharge, release or escape of "pollutants" that causes "bodily injury" or "property damage' which may otherwise be covered under this policy. M. WAIVER OF SUBROGATION The following is added to paragraph 8. Transfer of Rights of Recovery Against Others to Us of SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS: We waive any right of recovery we may have against any person or organization because of payments we make for injury or damage arising out of: premises owned or occupied by or rented or loaned to you; ongoing operations performed by you or on your behalf, done under contract with that person or organization; "your work"; or "your products". We waive this right where you have agreed to do so as part of a written contract, executed by you before the "bodily injury" or "property damage" occurs or the "personal injury" or "advertising injury" offense is committed. N. BROADENED CONTRACTUAL LIABILITY —WORK WITHIN 50' OF RAILROAD PROPERTY Paragraph 9.c. of the definition "Insured Contract" under SECTION V — DEFINITIONS is deleted and replaced with the following: "Insured contract" means any easement or license agreement in connection with construction or demolition operations on or within 50 feet of a railroad. GL990078 Page 5 of 6 Ed 0912 Paragraph f.(1) of 9. "Insured contract' under SECTION V — DEFINITIONS is deleted. O. BODILY INJURY DEFINITION The definition of "bodily injury" in paragraph 3. of SECTION V — DEFINITIONS is deleted and replaced with the following: "Bodily injury" means bodily injury, mental anguish, mental shock, fright, disability, humiliation, sickness or disease sustained by a person, including death resulting from any of these at any time. GL990078 Page 6 of 6 Ed 0912 POLICY NUMBER: COMMERCIAL AUTO CA990187 0715 This Endorsement Changes The Policy. Please Read It Carefully BUSINESS AUTO COVERAGE EXPANSION ENDORSEMENT This endorsement modifies insurance provided by the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the COVERAGE FORM apply unless modified by the endorsement. A. Newly Acquired or Formed Organizations, Employee Hired Car Liability and Blanket Additional Insured Status for Certain Entities. Item 1. Who is an Insured of Paragraph A. Coverage under SECTION II — COVERED AUTOS LIABILITY COVERAGE is amended to add: d. Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain ownership of a majority interest (greater than 50%), will qualify as a Named Insured; however, (1) coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; (2) coverage does not apply to "bodily injury", "property damage" or "covered pollution cost or expense" that results from an "accident" which occurred before you acquired or formed the organization; and (3) coverage does not apply if there is other similar insurance available to that organization, or if similar insurance would have been available but for its termination or the exhaustion of its limits of insurance. This insurance does not apply if coverage for the newly acquired or formed organization is excluded either by the provisions of this coverage form or by endorsement. e. An "employee" of yours is an "insured" while operating an "auto" hired or rented under a contract or agreement in that "employee's" name, with your permission, while performing duties related to the conduct of your business. f. Any person or organization you are required by written contract or agreement to name as an additional "insured", but only with respect to liability created in whole or in part by such agreement. B. Increase Of Loss Earnings Payment Subpart (4) of a. Supplementary Payments of Item 2. Coverage Extensions of Paragraph A. Coverage under SECTION II — COVERED AUTOS LIABILITY COVERAGE is amended to read: (4) We will pay reasonable expenses incurred by the "insured" at our request, including actual loss of earnings up to $1,000 per day because of time off from work. C. Fellow Employee Injured By Covered Auto You Own Or Hire Item 5. Fellow Employee of Paragraph B. Exclusions under SECTION II — COVERED AUTOS LIABILITY COVERAGE is amended to add: This exclusion does not apply if the "bodily injury" results from the use of a covered "auto" you own or hire. Such coverage as is afforded by this provision is excess over any other collectible insurance. CA990187 0715 Includes Copyrighted Material of Insurance Services Offices, Inc. Page 1 of 5 Used with permission D. Limited Automatic Towing Coverage Item 2. Towing, of Paragraph A. Coverage, under SECTION III — PHYSICAL DAMAGE COVERAGE is amended to read: 2. Towing We will pay for towing and labor costs each time that a covered "auto" is disabled. All labor must be performed at the place of disablement of the covered "auto". a. The limit for towing and labor for each disablement is $500; b. No deductible applies to this cover- age. E. Item 3. Glass Breakage — Hitting A Bird Or Animal — Falling Objects or Missiles of Paragraph A. Coverage under SECTION III — PHYSICAL DAMAGE COVERAGE, is amended to add: Glass Repair Coverage We will waive the Comprehensive deductible for Glass, if one is indicated on your covered "auto", for glass repairs. We will repair at no cost to you, any glass that can be repaired without replacement, provided the "loss" arises from a covered Comprehensive "loss" to your "auto". F. Increase Of Transportation Expense Coverage Subpart a. Transportation Expenses of Item 4. Coverage Extensions of Paragraph A. Coverage under SECTION III — PHYSICAL DAMAGE COVERAGE is amended to read: a. Transportation Expenses We will pay up to $50 per day to a maximum of $1,000 for temporary transportation expense incurred by you because of the total theft of a covered "auto" of the private passenger type. We will pay only for those covered "autos" for which you carry either Comprehensive or Specified Causes of Loss Coverage or Theft Coverage. We will pay for temporary transportation expenses incurred during the period beginning 48 hours after the theft and ending, regardless of the policy's expiration, when the covered "auto" is returned to use or we pay for its "loss". G. "Personal Effects" Coverage Item 4. Coverage Extensions of Paragraph A. Coverage, under SECTION III - PHYSICAL DAMAGE COVERAGE, is amended to add: "Personal Effects" Coverage We will pay actual cash value for "loss" to "personal effects" of the "insured" while in a covered "auto" subject to a maximum limit of $2,500 per "loss", for that covered "auto" caused by the same "accident". No deductible will apply to this coverage. H. "Downtime Loss" Coverage Item 4. Coverage Extensions, of Paragraph A. Coverage, under SECTION III. PHYSICAL DAMAGE COVERAGE, is amended to add: "Downtime Loss" Coverage We will pay any resulting "downtime loss" expenses you sustain as a result of a covered physical damage "loss" to a covered "auto" up to a maximum of $100 per day, for a maximum of 30 days for the same physical damage "loss", subject to the following conditions: a. We will provide "downtime loss" beginning on the 5 1 day after we have given you our agreement to pay for repairs to a covered "auto" and you have given the repair facility your authorization to make repairs; b. Coverage for "downtime loss" expenses will end when any of the following occur: (1) You have a spare or reserve "auto" available to you to continue your operations. (2) You purchase a replacement "auto". (3) Repairs to your covered "auto" have been completed by the repair facility and they determine the covered "auto" is road -worthy. (4) You reach the 30 day maximum coverage. CA990187 0715 Includes Copyrighted Material of Insurance Services Offices, Inc. Page 2 of 5 Used with permission I. Item 4. Coverage Extensions, of Paragraph A. Coverage, under SECTION III. PHYSICAL DAMAGE COVERAGE, is amended to add: We will pay any resulting rental reimbursement expenses incurred by you for a rental of an "auto" because of "loss" to a covered "auto" up to a maximum of $100 per day, for a maximum of 30 days for the same physical damage "loss", subject to the following conditions: a. We will provide rental reimbursement incurred during the policy period beginning 24 hours after the "loss" and ending, regardless of the policy expiration, with the number of days reasonably required to repair or replace the covered "auto". If the "loss" is caused by theft, this number of days is the number of days it takes to locate the covered "auto" and return it to you or the number of days it takes for the claim to be settled, whichever comes first. b. Our payment is limited to necessary and actual expenses incurred. c. This coverage does not apply while there are spare or reserve "autos" available to you for your operations. d. If a "loss" results from the total theft of a covered "auto" of the private passenger type, we will pay under this coverage only that amount of your rental reimbursement expenses which is not already provided for under the Physical Damage Coverage Extension. J. "Personal Effects" Exclusion Paragraph B. Exclusions under SECTION III — PHYSICAL DAMAGE COVERAGE, is amended to add: "Personal Effects" Exclusion We will not pay for "loss" to "personal effects" of any of the following: a. Accounts, bills, currency, deeds, evidence of debt, money, notes, securities or commercial paper or other documents of value. b. Bullion, gold, silver, platinum, or other precious alloys or metals; furs or fur garments; jewelry; watches; precious or semi-precious stones. c. Paintings, statuary and other works of a rt. d. Contraband or property in the course of illegal transportation or trade. e. "Loss" caused by theft, unless there is evidence of forced entry into the covered "auto" and a police report is filed. K. Accidental Airbag Discharge Coverage Item 3.a. of Paragraph B. Exclusions under SECTION III — PHYSICAL DAMAGE COVERAGE is amended to read: a. Wear and tear, freezing, mechanical or electrical breakdown. The exclusion relating to mechanical break -down does not apply to the accidental discharge of an air bag. L. Loan or Lease Gap Coverage Paragraph C. Limit Of Insurance under SECTION III — PHYSICAL DAMAGE COVERAGE is amended to add: If a covered "auto" is owned or leased and if we provide Physical Damage Coverage on it, we will pay, in the event of a covered total "loss", any unpaid amount due on the lease or loan for a covered "auto", less: a. The amount paid under the Physical Damage Coverage Section of the policy; and b. Any: (1) Overdue lease or loan payments including penalties, interest or other charges resulting from overdue payments at the time of the "loss"; (2) Financial penalties imposed under a lease for excessive use, abnormal wear and tear or high mileage; (3) Costs for extended warranties, Credit Life Insurance, Health, Accident or Disability Insurance purchased with the loan or lease; (4) Security deposits not refunded by the lessor; and (5) Carry-over balances from previous loans or leases CA990187 0715 Includes Copyrighted Material of Insurance Services Offices, Inc. Page 3 of 5 Used with permission M. Aggregate Deductible Paragraph D. Deductible under SECTION III — PHYSICAL DAMAGE COVERAGE is amended to add: Regardless of the number of covered "autos" involved in the same "loss", only one deductible will apply to that "loss". If the deductible amounts vary by "autos", then only the highest applicable deductible will apply to that "loss". N. Diminishing Deductible Paragraph D. Deductible under SECTION III — PHYSICAL DAMAGE COVERAGE is amended to add: Any deductible will be reduced by the percentage indicated below on the first "loss" reported during the corresponding policy period: Loss Free Policy Periods With the Expansion Endorsement Deductible Reduction on the first "loss" 1 0% 2 25% 3 50% 4 75% 5 100% If we pay a Physical Damage "loss" during the policy period under any BUSINESS AUTO COVERAGE FORM you have with us, your deductible stated in the Declarations page of each such COVERAGE FORM will not be reduced on any subsequent claims during the remainder of your policy period and your deductible reduction will revert back to 0% for each such COVERAGE FORM if coverage is renewed. O. Knowledge of Loss and Notice To Us Subsection a. of Item 2. Duties In the Event of Accident, Claim, Suit or Loss of Paragraph A. Loss Conditions under SECTION IV -- BUSINESS AUTO CONDITIONS is amended to add: However, prompt notice of the "accident", claim, "suit" or "loss" to us or our authorized representative only applies after the "accident", claim, "suit" or "loss" is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership; (3) An "executive officer" or director, if you are a corporation; (4) A manager or member, if you are a limited liability company; (5) Your insurance manager; or (6) Your legal representative. P. Waiver Of Subrogation For Auto Liability Losses Assumed Under Insured Contract Item 5. Transfer Of Rights Of Recovery Against Others To Us of Paragraph A. Loss Conditions under SECTION IV — BUSINESS AUTO CONDITIONS is amended to read: 5. Transfer of Rights of Recovery Against Others To Us If any person or organization to or for whom we make payments under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after an "accident" or "loss" to impair them. However, if the insured has waived those rights to recover through a written contract, we will waive any right to recovery we may have under this Coverage Form. Q. Insurance is Primary and Noncontributory Subpart a. of Item 5. Other Insurance of Paragraph B. General Conditions under SECTION IV — BUSINESS AUTO CONDITIONS is amended to read: a. This insurance is primary and noncontributory, as respects any other insurance, if required in a written contract with you. R. Other Insurance — Hired Auto Physical Damage Subpart b. of Item 5..Other Insurance of Paragraph B. General Conditions under SECTION IV — BUSINESS AUTO CONDITIONS is amended to read: b. For Hired Auto Physical Damage Coverage, the following are deemed to be covered "autos" you own: (1) Any covered "auto" you lease, hire, rent or borrow; and CA990187 0715 Includes Copyrighted Material of Insurance Services Offices, Inc. Page 4 of 5 Used with permission (2) Any covered "auto" hired or rented by your "employee" under a contract in that individual "employee's" name, with your permission, while performing duties related to the conduct of your business. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". S. Unintentional Failure To Disclose Hazards Paragraph B. General Conditions under SECTION IV — BUSINESS AUTO CONDI- TIONS is amended to add: 9. Your failure to disclose all hazards existing as of the inception date of this policy shall not prejudice the coverage afforded by this policy, provided that such failure to disclose all hazards is not intentional. However, you must report such previously undisclosed hazards to us as soon as practicable after its discovery. T. Additional Definition SECTION V — DEFINITIONS is amended to add: "Personal effects" means personal property owned by the "insured". "Downtime loss" means actual loss of "business income" for the period of time that a covered "auto": 1. Is out of service for repair or replacement as a result of a covered physical damage "loss" and 2. Is in the custody of a repair facility if not a total "loss". "Business Income" means: 1. Net Income (Net Profit or Loss before income taxes) that would have been earned or incurred; and 2. Continuing normal operating expenses incurred, including payroll. In this endorsement, Headings and Titles are inserted solely for the convenience and ease of reference. They do not affect the coverage provided by this endorsement, nor do they constitute any part of the terms and conditions of this endorsement. All other policy wording not specifically changed, modified, or replaced by this endorsement wording remains in effect. CA990187 0715 Includes Copyrighted Material of Insurance Services Offices, Inc. Page 5 of 5 Used with permission POLICY NUMBER: WPP122645402 COMMERCIAL GENERAL LIABILITY CG 20 37 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organizations Location And Description Of Completed Operations Blanket as required by written contract. Blanket as required by written contract. It is agreed that such insurance as is afforded by this policy for the benefit of the additional insured shown shall be primary insurance, and any other insurance maintained by the additional insured(s) shall be excess and noncontributory as respects any claim, loss or liability allegedly arising out of the operations of the named insured, provided however that this insurance will not apply to any claim loss or liability which is determined to be solely the result of the additional insured's negligence or solely the additional insured's responsibility. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the Schedule of this endorsement performed for that additional insured and included in the "products -completed operations hazard". However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. CG 20 37 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 2 B. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. Page 2 of 2 © ISO Properties, Inc., 2004 CG 20 37 04 13 0 Policy Number: WPP122645402 COMMERCIAL GENERAL LIABILITY CG 20 38 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - AUTOMATIC STATUS FOR OTHER PARTIES WHEN REQUIRED IN WRITTEN CONSTRUCTION AGREEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. Section II — Who Is An Insured is amended to include as an additional insured: 1. Any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy; and 2. Any other person or organization you are required to add as an additional insured under the contract or agreement described in Paragraph 1. above. Such person(s) or organization(s) is an additional insured only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: a. Your acts or omissions; or b. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured. However, the insurance afforded to such additional insured described above: a. Only applies to the extent permitted by law; and b. Will not be broader than that which you are required by the contract or agreement to provide for such additional insured. A person's or organization's status as an additional insured under this endorsement ends when your operations for the person or organization described in Paragraph 1. above are completed. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: 1. "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: a. The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or b. Supervisory, inspection, architectural or engineering activities. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage", or the offense which caused the "personal and advertising injury", involved the rendering of, or the failure to render, any professional architectural, engineering or surveying services. 2. "Bodily injury" or "property damage" occurring after: a. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or CG 20 38 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 2 b. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. C. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: The most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement described in Paragraph A.1.; or Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. Page 2 of 2 © Insurance Services Office, Inc., 2012 CG 20 38 04 13 Policy Number: WPP122645402 COMMERCIAL GENERAL LIABILITY CG 20 01 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PRIMARY AND NONCONTRIBUTORY - OTHER INSURANCE CONDITION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART The following is added to the Other Insurance Condition and supersedes any provision to the contrary: Primary And Noncontributory Insurance This insurance is primary to and will not seek contribution from any other insurance available to an additional insured under your policy provided that: (1) The additional insured is a Named Insured under such other insurance; and (2) You have agreed in writing in a contract or agreement that this insurance would be primary and would not seek contribution from any other insurance available to the additional insured. CG 20 01 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 1 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 01-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT CALIFORNIA 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% of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description Any person or organization as required by written contract. $1,942.00 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective Insured Insurance Company WC 04 03 06 (Ed. 01-84) 1/1/2017 Policy No. Ecological Concerns Inc. Security National Insurance Company Countersigned by SWC 1135805 Endorsement No. Premium $ 0 45879 CITY OF , SECOND AMENDMENT TO CONSULTANT SERVICES CUPERTINO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND ECOLOGICAL CONCERNS INC. FOR HORTICULTURAL SERVICES This Second Amendment to the Consultant Services Agreement between the City of Cupertino and Ecological Concerns, Inc., for reference dated September 7, 2015, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and Ecological Concerns, Inc., a California corporation, whose address is 125 Walk Circle, Santa Cruz, CA 95060, (hereinafter " Consultant"), and is made with reference to the following: RECITALS: A. On February 1, 2014, an agreement was entered into by and between City and Ecological Concerns, Inc. for consultant services (hereinafter "Agreement"). A first amendment to the agreement dated for reference September 1, 2014 was executed. 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. "SERVICES TO BE PERFORMED" section of the Agreement is modified to add the following language: Consultant shall also perform the services set forth in Exhibit A-2, which is attached hereto and incorporated herein by this reference. 2. "SCHEDULE OF PERFORMANCE" section of the Agreement is modified to add the following language: Services of Consultant which are described in Exhibit A-2 are to be completed according to the schedule noted in Exhibit C-2, which is attached hereto and incorporated herein by reference. 3. "COMPENSATION TO CONSULTANT" section of the Agreement, first sentence, is modified to read as follows: Services of Consultant which are described in Exhibit A-2 are to be compensated as noted in Exhibit B-2, which is attached hereto and incorporated herein by reference. The maximum compensation to be paid to Consultant under this agreement shall not exceed Seventy Three Thousand Nine Hundred Dollars ($73,900.00). City of Cupertino - Ecological Concerns Inc. Page 1 Amendment No. 2 4. "TERM" section of the Agreement is modified as follows: The term of this Agreement shall terminate on December 31, 2016, unless terminated earlier as set forth herein or unless extended by mutual agreement in. writing. 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. Ecological Concerns, Inc. 1 Date 1 Z-0 - Lr CITY OF CUPERTINO A Municipal Corporation By Tim en, Director of Public Works Date L V ( -, —T RECOMMENDED FOR APPROVAL: B �a Y d 'LA Gail Seeds, Project Manager APPR,QVED AS TO FORM: By Colleen Winche er, Acting City Attorney ATTEST: By Grace Schmidt, City Clerk Amendment No. 2 Amount, $25,000.00 Account No. 100-84-813-700-702 City of Cupertino — Ecological Concerns Inc. Page 2 Amendment No. 2 EXHIBIT A-2 SCOPE OF SERVICES, FEE and SCHEDULE Services that have been added via this Amendment No. 2 are to consist of tasks noted below. Basic Services Tasks, Amendment No.1 The city desires services by trained personnel knowledgeable in the installation, establishment and care of locally -native plant species. The following plant care activities will be provided for the upland, riparian and seeded/planted/planter bed areas of the project site: • Hand watering of non -irrigated plantings as needed. Watering frequency is to accommodate weather, temperature, day length, creek water level, site conditions, plant root ball size and depth, exposure, sun/shade/overstory presence, and other factors that affect plantings' water needs • Periodic heavy watering/drenching of container trees and larger/container size plant material as needed • Weeding of planting basins • Observation and recommendations on timing of irrigation for upland/irrigated areas • Troubleshooting and correction of minor irrigation problems [city staff to correct non -minor items] Adequate watering during establishment is the most critical task and is to be the top priority. As time allows, when the above tasks are handled, the following typical tasks may be undertaken and related tasks as acceptable to City: • Additional weeding outside of basins to help establishment of newly recruited native seedlings and control growth of non-native species. This may include weed -whacking or selective weeding of particular invasive species and/or nonnatives outside of planting basins. • Select pruning/trimming/shaping/staking • Removal of browse protection cages from plants in upper creek bank when not needed and from plants which outgrow cages • Broadcast native seed mix for erosion control or coverage. Additional broadcasting may be requested for infill, cover, wildflower sowing or other goals. Seed will be city -provided or may be billed as a reimbursable expense. • Continuing removal of invasive non-native plant species with a focus on creek channel and banks, then upland areas • Application of mulch materials City of Cupertino - Ecological Concerns Inc. Page 3 Amendment No. 2 Unanticipated planting establishment activities may be needed because this is a new restoration site in a dynamic riparian system. Any particular concerns or significant observations will be regularly reported to City's designated representative. The Scope of Services assumes that a complete watering effort requires 1.5 person -days and assumes the following level of effort for basic services: January 1 site visit, 2 -person crew or equivalent February, March and April 2 site visits, 2 -person crew or equivalent May 2.5 site visits, 2 -person crew or equivalent June 3 site visits, 2 -person crew or equivalent July, August and September 3 to 4 site visits, 2 -person crew or equivalent October 2.5 site visits, 2 -person crew or equivalent November and December 1.5 site visits, 2 -person crew or equivalent City of Cupertino - Ecological Concerns Inc. Page 4 Amendment No. 2 EXHIBIT B-2 COMPENSATION Fee for Basis Services described herein, not to exceed: $ 25,000.00 Total Not -to -Exceed Fee, this Amendment No. 2: L25,0-0-0.00 City of Cupertino — Ecological Concerns Inc. Page 5 Amendment No. 2 EXHIBIT C-2 SCHEDULE OF PERFORMANCE Services relating to establishment of native plantings for Stevens Creek Corridor Park and Restoration shall continue through December 31, 2016. The service period may be extended as acceptable to City. Services that have been added via this Amendment No. 2 are to be performed year round and specific timing may vary depending on rainfall, temperature, and other variable site conditions. Services are anticipated to be generally provided one to four days per month as described in Exhibit A-2. City of Cupertino - Ecological Concerns Inc. Page 6 Amendment No. 2 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 October 27, 2014 Ecological Concerns, Inc., 125 Walk Circle Santa Cruz, CA 95060 Re: First Amendment to agreement for horticultural 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 CITY OF 1 1 FIRST AMENDMENT TO CONSULTANT SERVICES CUPERTINO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND ECOLOGICAL CONCERNS INC. FOR HORTICULTURAL SERVICES This First Amendment to the Consultant Services Agreement between the City of Cupertino and Ecological Concerns, Inc., for reference dated September 1, 2014, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and Ecological Concerns, Inc., a California corporation, whose address is 125 Walk Circle, Santa Cruz, CA 95060, (hereinafter " Consultant"), and is made with reference to the following: RECITALS: A. On February 1, 2014, an agreement was entered into by and between City and Ecological Concerns, Inc. for consultant 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. "SERVICES TO BE PERFORMED" section of the Agreement is modified to add the following language: Consultant shall also perform the services set forth in Exhibit A-1, which is attached hereto and incorporated herein by this reference. 2. "SCHEDULE OF PERFORMANCE" section of the Agreement is modified to add the following language: Services of Consultant which are described in Exhibit A-1 are to be completed according to the schedule noted in Exhibit C-1, which is attached hereto and incorporated herein by reference. 3. "COMPENSATION TO CONSULTANT" section of the Agreement, first sentence, is modified to read as follows: The maximum compensation to be paid to Consultant under this agreement shall not exceed Forty Eight Thousand Nine Hundred Dollars ($48,900.00). Services of Consultant which are described in Exhibit A-1 are to be compensated as noted in Exhibit'13-1, which is attached hereto and incorporated herein by reference. City of Cupertino — Ecological Concerns Inc. Page 1 Amendment No. 1 4. "TERM" section of the Agreement is modified as follows: The term of this Agreement shall terminate on December 31, 2015, unless terminated earlier as set forth herein or unless extended by mutual agreement in writing. 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. Ecological Concerns, Inc. CITY OF CUPERTINO A Municipal Corporation a B By Direc or of Public Works, Timm Borden Title �f c �- 'uy�� Date f. a �'7 / I Date `� i `� . RECOMMENDED FOR APPROVAL: I By �V7 ��— Project Manager, Gail Seeds APPROVED AS TO FORM: By Caro ®rade, City Attorney ATTEST: By Grace Schmidt, City Clerk Total Contract Amount, as amended $48,900.00 Amendment No. 1 Amount, $34,000.00 /AccoAccount No. 427-9134-9300 - $9,000.00 unt No.110-8314-7014 - $25,000.00 I City of Cupertino — Ecological Concerns Inc. Page 2 Amendment No. 1 EXHIBIT A-1 SCOPE OF SERVICES, FEE and SCHEDULE Services that have been added via this; Amendment No. 1 are to consist of tasks noted below. Basic Services Tasks, Amendment No.1 The city. desires services by trained personnel knowledgeable in the installation, establishment and care of locally -native plant species. The following plant care activities will be provided for the upland, riparian and seeded/planted/planter bed areas of the project site: • Hand watering of non -irrigated plantings as needed. Watering frequency is to accommodate weather, temperature, day length, creek water level, site conditions, plant root ball size and depth, exposure, sun/shade/overstory presence, and other factors that affect plantings' water needs • Periodic heavy watering/drenching of container trees and larger/container size plant material as needed • Weeding of planting basins • Observation and recommendations on timing of irrigation for upland/irrigated areas • Troubleshooting and correction of mirror irrigation problems [city staff to correct non -minor items] Adequate watering during establishment is the most critical task and is to be the top priority. As time allows, when the above tasks are handled, the following typical tasks may be undertaken and related tasks as acceptable to City: • Additional weeding outside of basin; to help establishment of newly recruited native seedlings and control growth of non-native species. This may include weed -whacking or selective weeding of particular invasive species and/or nonnatives outside of planting basins. • Select pruning/trimming/shaping/staking • Removal of browse protection cages from plants in upper creek bank when not needed and from plants which outgrow cages • Broadcast native seed mix for erosion control or coverage. Additional broadcasting may be requested for infill, cover, wildflower sowing or other goals. Seed will be city -provided or may be billed as a reimbursable expense. • Continuing removal of invasive non-native plant species with a focus on creek channel and banks, then upland areas • Application of mulch materials City of Cupertino - Ecological Concerns Inc. Page 3 Amendment No. 1 Additional Services Tasks In addition to specified activities above, an allowance has been provided to address additional activities that may be desired and would assist in establishment of the restoration areas such as: • Exceptional, non -regular weeding efforts • Installation of supplemental plant material • Extended dry period necessitating additional watering days • Ameliorate for damage from storm events Unanticipated planting establishment activities may be needed because this is a new restoration site in a dynamic riparian system. Any particular concerns or significant observations will be regularly reported to City's designated representative. The Scope of Services assumes that a complete watering effort requires 1.5 person -days and assumes the following level of effort for basic services:. January 1 site visit, 2 -person crew or equivalent February, March and April 2 site visits, 2 -person crew or equivalent May 2.5 site visits, 2 -person crew or equivalent June 3 site visits, 2 -person crew or equivalent July, August and September 3 to 4 site visits, 2 -person crew or equivalent October 2.5 site visits, 2 -person crew or equivalent November and December 1.5 site visits, 2 -person crew or equivalent City of Cupertino — Ecological Concerns Inc. Page 4 Amendment No. 1 EXHIBIT B-1 COMPENSATION Fee for Basis Services described herein, not to exceed: $ 25,000.00 Additional Services Allowance, to be expended only upon written authorization by City: $9,000.00 Total Not -to -Exceed Fee, this Amendment No. 1: $ 34,000.00 City of Cupertino - Ecological Concerns Inc. Page 5 Amendment No. 1 EXHIBIT C-1 SCHEDULE OF PERFORMANCE Services relating to establishment of native plantings for Stevens Creek Corridor Park and Restoration shall continue through December 31, 2015. The service period may be extended as acceptable to City. Services that have been added via this Amendment No. 1 are to be performed year round and specific timing may. vary depending on rainfall, temperature, and other variable site conditions. Services are anticipated to be generally provided one to four days per month as described in Exhibit A-1. City of Cupertino - Ecological Concerns Inc. Page 6 Amendment No. 1 OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366 WEBSITE: www.c:upertino.org CUPERTINO March 24, 2014 Ecological Concerns, Incorporated 125 Walk Circle Santa Cruz, CA 95060 Re: 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 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND ECOLOGICAL CONCERNS, INCORPORATED FOR HORTICULTURAL MVICES FOR STEVENS CREEK CORRIDOR PARK AND RESTORATION 4/5 THIS AGREEMENT, for reference dated February 1, 2014, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and Ecological Concerns, hicorporated, a California corporation, whose address is 125 Walk Circle, Santa Cruz, CA 95060 (hereinafter referred to as "Consultant"), and is made with reference to the following: RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. Consultant is specially trained, experienced and competent to perform the special services which will be required by this Agreement; and C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and Consultant desire to enter into an agreement for upon the terms and conditions herein, to provide horticultural services relating to establishment of native plantings as described in Exhibit A of this Agreement. 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, 2015, 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. Page 1 of 14 City of Cupertino - Ecological Concerns Inc. Agreement 3. SCHEDULE OF PERFOMRANCE: The Services of Consultant are to be completed according to the schedule set out in Exhibit B, 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 Fourteen Thousand Nine Hundred Dollars $14,900.00). The rate of payment is set out in Exhibit C, 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 stzaidards 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 Page 2 of 14 City of Cupertino — Ecological Concerns Inc. Agreement Consultant. Payments of the above items, if required, are the responsibility of Consultant. 8. IMMIGRATION REFORM AND CONTROL ACT (IBCA): 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. PROTECT 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 Jon Laslett. 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 Page 3 of 14 City of Cupertino - Ecological Concerns Inc. Agreement hold harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to the performance of this Agreement by Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. 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, 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' Compe�isation: 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 Page 4 of 14 City of Cupertino — Ecological Concerns Inc. Agreement If submitted, combined single limit policy with aggregate limits in the amowits 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 B. SUBROGATION WAITER: 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 wider such insurance. C. FAILURE TO SECURE: If Consultant at any time durin,; 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 recovelyto which such additional insured would be entitled tinder this policy i£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 Page 5 of 14 City of Cupertino— Ecological Concerns Inc. Agreement 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 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 irn 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 Page 6 of 14 City of Cupertino — Ecological Concerns Inc. Agreement 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 cormection 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 retail 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 d-iis 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 Page 7 of 14 City of Cupertino - Ecological Concerns Inc. Agreement 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. 19. NONDISCRIMINATION Consultant certifies and agrees that he/she will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, sex, age, or condition or physical or mental handicap (as defined in 41 C.F.R. Section 60-741, et. seq.), in accordance with requirement of state or federal law. Consultant shall take affirmative action to ensure that qualified applicants are employed and: that employees are treated during employment without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental. handicap in accordance with requirements of state and federal law. Such shall include, but not be limited to, the following: A. Employment upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. B. Selection for training, including interns and apprentices. Consultant agrees to post in conspicuous places in each of Consultant's facilities providing services hereunder, available and open to employees and applicants for employment, notices,setfaig forth the provisions of this nondiscrimination clause. Consultant shall, in all solicitations or advertisements for employees placed by or on behalf of Consultant, state that all qualified applicants will Page8of14 City of Cupertino — Ecological Concems Inc. Agreement receive consideration for employment without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap, in accordance with requirements of state and federal law. Consultant shall send to each latbor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding a notice advising the labor union or workers' representative of Consultant's commitments under this paragraph. Consultant certifies and agrees that he/she will deal with his/her subcontractors, bidders, or vendors without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap, in accordance with requirement of state zaid federal law. In accordance with applicable state and federal law, Consultant shall allow duly authorized county, state and federal representatives access to his/her employment records during regular business hours in order to verify compliance with the anti -discrimination provisions of this paragraph. Consultant shall provide such other information and records as such representatives may require in order to verify compliance with the anti -discrimination provisions of this paragraph. If the City finds that any of the I'Drovisions of this paragraph have been violated, the same shall constitute a material breach of Agreement upon which City may determine to cancel, terminate, or suspend this Agreement. City reserves the right to determine independently that the anti -discrimination provisions of this Agreement have been violated. In addition, a determination by the California Fair Employment Practices Commission or the Federal Equal Employment Opportunity Commission that Consultant has violated state and federal anti -discrimination laws shall constitute a finding by City that Consultant has violated the anti -discrimination provisions of this Agreement. The parties agree that in the event Consultant violates any of the anti- discrimination provisions of this paragraph, City shall be entitled, at its option, to the sum of $500.00 pursuant to California Civil Code Section 1671 as liquidated damages in lieu of canceling, terminating, or suspending this Agreement. Consultant hereby agrees that he/she will comply with Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794), all requirements imposed by the applicable regulations (45 C.F.R.), and all guidelines and interpretations issued pursuant thereto, to the end that no qualified handicapped person shall, on the basis of handicap, he excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity of Consultant receiving Federal Financial. Assistance. In addition, Consultant shall comply with the Uniform Federal Accessibility Standards, and Contractor, Engineer, or Architect responsible for any design, Page 9 of 14 City of Cupertino - Ecological Concerns Inc. Agreement construction or alteration shall certify compliance with those Standards. Consultant's attention is directed to laws, including but not limited to: A. CIVIL RIGHTS/EQUAL OPPORTUNITY (1) Civil Rights Act of 1964. Under Title VII of the Civil Rights Act of 1964, no person shall, on the grounds of race, sex, religion, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (2) Section 109 of the Housing and Community Development Act of 1974. No person in the United `.Mates shall, on the grounds of race, color, national origin, or sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this title. Section 109 of the Act further provides that any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) shall also apply to any program or activity funded in whole or in part with funds made available pursuant to the Act. B. PROGRAM ACCESSIBILITY FOR INDIVIDUALS WITH DISABILITIES This Agreement is subject to laws and regulations concernu-tg the rights of otherwise qualified individuals with handicaps for equal participation in, and benefit from federally assisted programs and activities, including but not limited to: (1) Americans with Disabilities Act of 1990 (ADA) (28 CFR 35). Title II, Subpart A of the Americ�uzs with Disabilities Act of 1990 applies to all publicly funded activities and programs. Consultant shall also comply with the public accommodations requirements of Title III of the ADA, as applicable. (2) Nondiscrimination on the Basis of Handicap (24 CFR 8). These regulations, which implement Section 504 of the Rehabilitation Act of 1973, as amended, and as cited in Section 109 of the Housing and Community Development Act, ,3:pply to all federally assisted activities and programs and are implemented through the regulations at 24 CFR 8. (3) Architectural Barrier .pct of 1968. Any building or facility, excluding privately owned residential structures, designed, constructed, Page 10 of 14 City of Cupertino - Ecological Concems Inc. Agreement or altered with federal funds, shall comply with the Uniform Federal Accessibility Standards, 1984 (41 CFR 3) and the Handicapped Accessibility Requirements of the State of California Title 24. The Consultant, Engineer or Architect responsible for such design, construction or alteration shall certify compliance with the above standards. (4) In resolving any conflict between the accessibility standards cited in paragraphs (1), (2) and (3) above, the more stringent standard shall apply. 20. 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: Ecological Concerns, Inc. 125 Walk Circle Santa Cruz, CA 95060 Attention: Mr. Jon Laslett 21. 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 Page 11 of 14 City of Cupertino — Ecological Concerns Inc. Agreement 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. 22. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. 23. 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. 24. 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 perforated under this Agreement unless prior written approval has been secured froin City to do otherwise. 25. 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. 26. 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. Page 12 of 14 City of Cupertino — Ecological Concerns Inc. Agreement 27. 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 aj.1y 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. 28. 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. 29. 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. 30. 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 Enhancemeni: and Mitigation (EEM) Program. A copy of the agreement marked Exhibit D is attached hereto and incorporated herein by reference. Page 13 of 14 City of Cupertino — Ecological Concerns Inc. Agreement P.O. No. &T-Djj�y -� / IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT Ecological Concerns, Incorporated Name 7YO>v L-t:si-e—T7 Title ?�/L. �aa�G--�Y I I,w•r` Date Z /ZS Zo d Tax I.D. No.: 7 7-©(510 713 Address: 1 Z 5 6114ZC' CrLJz, LA 95a60 CITY OF CUPERTINO A Municipal Corporation By < _--- Timm Borden, Director of Public Works Date APPROVED AS TO FORM: Carol Korade, City Attorney ATTEST: r Grace Schmidt, City Cler1��2���U Contract Amount: $14,900.00 Account No.: 427-9134-9300 Z Page 14 14 of 14 City of Cupertino - Ecological Concerns Inc. Agreement EXHIBIT A Scope of Services Stevens Creek Corridor Park and Restoration At the Stevens Creek Corridor Park and Restoration Phase 2 project site, the proposed work includes professional horticultural services to support successful establishment of approximately 2,400 native riparian and upland plants and associated planting areas. Basic Services Tasks, Native Planting Establishment The city desires services by trained personnel l<:nowledgeable in the installation, establislunent and care of locally -native plant species. The following plant care activities will be provided for the upland, riparian and seeded/planted/planter bed areas of the project site: • Hand watering of non -irrigated plantings as needed. Watering frequency is to acconnnodate weather, temperature, day length, creek water level, site conditions, plant root ball size and depth, exposure, sunshade/overstory presence, and other factors that affect plantings' water needs • Periodic heavy watering/drenching of container trees as needed • Weeding of planting basins • Observation and reco>ntnendations on cycling of irrigation for upland/irrigated areas • Troubleshooting and correction of minor irrigation problems [city staff to correct non - minor items] Adequate watering during establishment is the most critical task and is to be the top priority. As time allows, when the above tasks are handled, the following typical and related tasks may be undertaken: • Additional weeding outside of basins to help establishment of newly recruited native seedlings and control growth of non-native species. This may include wee -whacking or selective weeding of particular invasive species and/or nonnatives outside of planting basins. • Select pruning/sprucing focusing on public and visible areas • Removal of browse protection cages from plants in upper creek bank when not needed and from plants which outgrow cages • Spot hand broadcast seed for erosion control or coverage. Additional broadcasting may be requested for infill, cover, wildflower sowing or other goals. Seed will be city -provided or may be billed as a reimbursable expense.. Additional Services Tasks In addition to specified activities above, an allowance has been provided to address additional activities that may be desired and would assist in establishment of the restoration areas such as: • Exceptional, non -regular weeding effort:s • Installation of supplemental plant material • Extended dry period necessitating additional watering days • Ameliorate for damage from storm events Exhibit A, Scope Page 1 Unanticipated planting establishment activities :may be needed because this is a new restoration site in a dynamic riparian system. Any particular concerns or significant observations will be regularly reported to City's designated representative. The Scope of Services assumes that a complete, watering effort requires 1.5 person -days and assumes the following level of effort for basic services: February 1 site visit, 2 -person crew or equivalent March 2 site visits, 2 -person crew or equivalent April 2 site visits, 2 -person crew or equivalent May 2.5 site visits, 2 -person crew or equivalent June 2014 3 site visits, 2 -person crew or equivalent July 2014 3 site visits, 2 -person crew or equivalent Exhibit A, Scope Page 2 EXHIBIT B COMPENSATION Stevens Creek Corridor Park and Restoration Basic Services Services shall be provided for a fee of $55.00/liour per person. The hourly fee shall include compensation for all associated costs for tasks within the basic scope of services, based upon an eight hour day of services performed at the site:. If a partial day of services is provided, a $55.00 surcharge shall apply. Reimbursable Expenses The hourly fee shall include compensation for -travel, vehicle use, tools, materials, equipment, and all incidental expenses for tasks in the basic scope of services. A reimbursable expense allowance is included. It may be used with City authorization to provide new or replacement plant material (container stock or seed); materials or equipment for unanticipated establishment activities; or other exceptional expenses.. TOTAL REIMBURSABLE EXPENSE ALLOWANICE: NTE $300 Additional Services TOTAL ADDITIONAL SERVICES ALLOWANCE: NTE $2,700 To be expended only upon advance City authorization, in writing, for work outside the basic scope of services COMPENSATION SUMMARY Basic Services $11,900 Reimbursable Expenses Allowance $ 300 Basic Services, Not to Exceed: $12,200 Additional Services Allowance $2,700 TOTAL CONTRACT, Not to Exceed` $14,900 Exhibit B, Compensation Page 1 EXHIBIT C Schedule of Performance Stevens Creek Corridor Park and Restoration Services to be performed under this Agreement shall commence as of the effective date of this Agreement. Services relating to establislunent of native plantings for Stevens Creek Corridor Park and Restoration shall continue through at least August 1, 2014. The service period may be extended as acceptable to City. Services are anticipated to be provided one to )ur days per month as described in Exhibit A. Exhibit C, Schedule of Performance Page 1 EXHIBIT D FOR ('ALTRANS'USE` I;hereb`,b6rtify dobn rfi., &Nn Oe'fs6fiafk oWedge thaf-budk&ie.d--.funds.are,.avail'ab*le�f'or.,this encumbrance. Accounting Officer; 0'a'te, q: -4111 Chapter., Statutes" Ifein Pise am c- 'Year., Pro*j�,-,K*n-' B.C.Cate'g;pry.. ,, - ,,. Fund; Source:: 144 347 1 00 TO04 -20 35: PjLWANT,ITA6REEINTEJ� if.N. 70 ENVIR6 N'NI'I`E'N'T*A' -L" ENHANCEMENT AND MITIGATION-AEM) ?RQGRAM.: STATE PRQJ-E-C'T,N-U-MB'ER':,'EEM-10'10 (035) 2010-2011 FISCAL YEAR ALLOCATION Advantage' Pro'ectj :..64,6002i:679: j D, THISREEMENT'.. made, effecfi've this ;between. e, AGI . . - ... 1—, -5 - . -1.1. . y7'Tdndb t th" City-, of Cupertino; �her6ihaftef-r&ferted to-As"APP . LICAN State of S (jfCdlif6mia. acting l} and -,through *'C4f6rqia,D6Dartment,of a Tr ..;lspQ.ftation(C'altrans),hereina:fter'referredtoas."*"ST TL yTNESSETH . .WHEREAS; as, provided -by Streets and:d Highways Cq4q 'Sec.tion 1.6 4-,56 Senate 'Bil-1.417 ($,f4tufeS�of 199?' Qhapter�739),otablished.the,EEM,Program asa . p ermah-efit Pf6grAm-,fdn*& have 'be' n' allocdted. to. APPLICANT by' the California Transportationibftd`i!6n` Co ffinffii�s` after ,the -PROJECT ,prp sul5mifted b APPLICANT' had been recomi ae's r, , I -, , ,—y iien f6 funding by the Resources Agency; : dhdas, �described in,the 'aPOlicatioh (APPLICATION)i -, WHEREAS, S"TATE-an'd APPLfCIA'NTiibW,desife to enter into an Ag emeht relati�le to fund' ". . . 1- 4 — I , re- � C. tfaqsfers.dnd cost sharing described PROJECT. on the '. NO, THEREFORE- th a' rei� a' f6ll �z—e-pqqles, 9 qVVS:1 ARTICLE I.- P.r,oieci, A-dIrnioistrafio-n and General. . P I to vi s i o n s:, I.- PROJECT shall, mean That .�E,EN - I PROJECT, descri!�e4-- to ihe 0PLICATION, submitted by APPLICANT,and I summariz"edin'txhi6iiA to this'Akreemdnt'including,,fihahtin"'g information assqt f6r,th jn,,S`ebtidn HI of Exhibitto this Agreement. greeinen... 'Pag& 'Lof 17. EEW26 10('035) EXHIBIT D 2. The PROJECT submitted by APPLICANT,.. together -with all conditions and assurances c '6tai idd the:rein; and:.specifically including information. on how the PROJECT ''shalFbe financed;, are made;an.express: part"ofihis-Agreernent.- Should any conflicfexistbetween iheAPPLICATION,arid`:the ..Agreement, the Agreenentshall:pre�ail.. 3. f1;PPEICANT shall' coi�iplete PROJECT; which shall be acquired, deveoped,. designed andconstructed as,provided.in thisAgreement. PROJECT is located. on._STATE-owned-right-of-way, APPLICANT shall'comply wi: th, all applicable STATE design and construction" -standards .and practices. `If PROJECT is not on STATE owned. right af.way„APPLICANT shall comply with the app licable.design and construction standards and;practices of the local government having jurisdiction over the PROJECT location., 5 In cases 'where: ` he. CTC; approved funding 'is less than th'e amount for, v, Lich APPLICANT originally applied due' tp;'a Budget Reduction on, the project .required by the: State:: Resources Agency; APPLICANT is obligated ;to eoiriplete PROTECT, without downscoping it, unless. P s ecifically 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:P,ROJECY is' as shown;.in Section ,III of Exhibit A, White, APPLICANT-inay, with the STATE's written,approval,,,award , a contract inan.amount inexceeding the.. - est mafe.d he._estimated total. PROJECT cost specified, in Section.Ill-A of Exhibit A of th"e' Agreement,, the allocation bf STATE funds for- PROJECT "wi11 never be greater '^thari the amount specified in Se ion III C.' of, Exhibrt:A of thi's Agreement. 7. Section III of'ExhibitA..specifies;the APPLICANT's estimated. total..PROJECT'cost,-each party'.;s.proportionate'percetitage:of, those'costs and the; maximum amount of'STATE-TU ids -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.,apprbVed, scope' of th6*PROJECT .(STATE'sPROPORTIONATE SHARE);and villi lie used as the reimbursement ratio on the project. In ibe ,event the actual. cost of PROJECT., .exceeds : the. estimated, total cost -of thePROJECT; the. STATE, shall pay its, PROPORTIONATE SHARE'of the cost :only up to the amount specifed ih Section III -C of Exhibit A..of` the Agreement,. 8. In the_, event the PROJECT scope decreases,. a decrease in the. STATE's. PROPORTIOI`TATE SHARE shall be made. 41 the event, the actual cost of PROJECT decreases 'for airy— reason from ,the estimated total' PROJECT costspecified.in Section 11.1 of Exhibit,A, the allocation ofd STATE, funds will ,be decreased proportionately' with any decrease .in APPLICANT's participating;, contribution so that the ST.ATE's PROPORTIONATE SHARE of costs relative to TOTAL. PROJECT COST remains as specified'k-See tion I1l-B of Exhibit A of the Agreement:. 9.. No changes of any kind .may be made to the PROJECT without: prior written notice to:° aInd:written acceptance by the„STATE' of the proposed change. The STATE shall acknowledge a'Written noficd:W proposed change 1 y 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 re`' tion of'the proposed change. and any work :performed in spite of, that rejection shall not be. eligible for reimbursementunless and until there is a, written,, duly executed amendment to this.Agre&inent ikhich 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 Agieem`eiit. •Pagel of 1-7. EE1, -Ni(l(635): EXHIBIT D 10 After ,:completion and acceptance 'of PR*0JEC'T by, 'both APPLICANT And' STATE,:,. STATE, shall: pay::STATE'.s PROPORTIONATE SHAR&`6f tli& cost -PROJECT to APPLICANT; within sixty . j§'0 d STATE'.s - .1 . 11 1- 1. ...J - 1-1 .. , co: PROJECT 1- 1. _" �'.' , "'ANT, Y days after re�ceipt-pf a, signed" invoice, for payment submitted by,APPLICA-NT- At the: option ofAPPLICANT, "mont N b,r-quarteI rll prd- fA ta,pro gress payments . . I,in arrears may be made, on a r6mburseffient bast" uponsubmittal, of. invoices by_ APPLICANT and approval by STATE of the: - PROJECT costs incurred: Pro tata.payffient.t wilfb6lbasd&on,:the amount of the STATE'Rifidtransfer' authorized hereinr'in-propo4ioh to ihe`ltoialxosf: of- PROJECT including.,APPLICAN'T contributions-. An - invoice f6rmdt document is inclu e ded as -Exiiibit, C. 11, if PROJECT inyo'lveswork ,anywhere,ont the State highway.:system�,a separate standard. form of encroachment.permit between STATE. dnd:APPLI CANT must beJprebared I and executed'before PROJECT. work may commence.... 12. APPLICANT shall comply with= 'the requirements. ofthe FAIR EMPLOYMENT` PRACTICES- ADDENDUM (Exhibit .B) . ard'.furhdf agrees that fn Agr66ffi,6pt: or service c e . 06nifa&( entered into . y APPLICANT with d' third.party f6r)eif8rmanceof work connected with the .PROJECT* shall incorporate., Exhibit, JJ as a ipart of'such agreement. 13; Ubon completion of: all, work under -''expirat . ion of this Agreement and prior tothe is Agreicmedt,..APPILICANT- shall "-prepare '-and ,fild"' -iih-STATE, w al Final Piojecf.Exp6fiditure Rie,Pprt, The "fill -al Project.; Expenditure . .. final.Report" must e- submitted with thenal, invoice on the PROJECT., ARTICLE -1I_- Rig.hN-'df-Way, J.. The acquis;iijo.n;. clearance; and. . improvement of rights of way -necessary for" the development of. PROJE'CiT, stall be the 'rCsP,'ijhsibili-of APPLICANT Right of way isiti6a and 4�qu_. .clear 6 e..cosi , ma included, as a p ng-litem, of total CT--.�ost _f' -the- y.. -item s.i hl' de&As part of cu PROJECT scope, of "work... 2. APPLICANT -shall perform All PR6JE'CbT'- right-of-kay activities: in' applfcablc StatelaWs and'reaulatioins unless` ss`the STATE det'- -that e1.rMt.nes,,in writing, kel,ocatibnAssistAnce and Real, PropertY Acquisition Poi iciestAct. (GoverniTiehl: Code do not apply to PROJECT. 'accordance - with the. State Uniform S'ecs,, 72'60-.7277) : design - . .3. APPLICANT,.as part of its PROJECT' design responsibiljty,,shqll identify, and locdfe, all utility f4&ififiesr within the PROJECT- area. All; utility- aciities, including those not. relocated of removed in,advanceofconstruction1j, shall be-i6entified'on.PROJECT . plansand specifications: 4. If any.,existing public, and /or private utilities conflict. With the construction of PROJECT, APPLICANT, Wit I make all necessary -arrangements - -witti ihe, owfiers of s;Uch, utilities for their nrofectibn, relocation, or.remo,ydl. If utility relocation isrequired within: STATE right-ofwav,.APPLICANT .S'hafiI conform to: STATE standards, policies. an&proced,tire§ „If utility reb;ocaflon is outside, of STATE right - of -W ay, APPVCANTsh 11 conf6rm.wiih local government policies. 5.: APPLICANT shallcertify as to legal and#ysica] control, of that. PkOJECT'rh �way gfit�.PP once, it is: ready for construction andthat the PROJECT "right -of way was at'491red in accoidahte with bppfida6l'& State laws and fedblafibns§u 131('-ct' to, review And concurrence ' - by STATE, TATE, prior to the advertisement for bids. for consiruction/develboment, of PROJ E . CT. . P�ige 3`o f 17 EEM -2010(035)' EXHIBIT D PROJECTIf APPLICANT' acqui.F&sl.'r,i'ght-"o'.f-;"-w,a"y'-w'.hich indude-s excess Jand.. STATE' will' na is i&'clared excess a t , a , tatet date I j'APPLICANT shall reimbuts6- STATE go 11at,er, than, one hundred twe�ty (120). days: Aftef'.:PRQJEC1 pompl6iion,,or upon -the subsequent, sale of th4t:,i�xces'sl�[6d..for7�ithet the pro,rata fair market, value of that exces:�'avthetiine otd�ispqsall. or-, if,ihavrtopei� ained.b ANT. -1he'pro. rata fdir,mark-ei value- of theexcess: land at -that time. Thepro ratav fAir md 6t rk value shal I be based on the: total of, th e , STATE fiind� transfibf - am' ount, dppl ied, t6 �rd purchase of.the- property Jnpro -portion; to -the. total purchase pfice 6fither-prop ARTICLE D1D^8mYetv 1, APPLICANT shAll,'cornpjy 'with OSHA, iegLklations regarding..necessarv,sat6iyequipment, and proc&dur If PROJECT work is-io be performed within STATE ri h er and other nit at i PIP hard, hats and orange. s9fety vests at'al . I'times whi - le: w6rkinpa-Withiti STATE- ri& of w*a--' Y. Pursuant i tfie, auihorfty contained in Section 59 1, bf the, I Vehicle Code. STATE. has determined,that within sfith-larea§`asaie.. 'ithiii ihe himits of the: PROJE�CT'and, are open to,public traffic, APPLICANT shall Comply Witb.al I I: the requirements.'set,forth - in, Divisions I 13, 14, 15 ofthei ' --_- __-_'—._-_'_N- _--' __- --,'pTeqau ions, tor sate o its agdht1.s of APPLI CANT' s! vehicles and. the protection of the, traveling public.4 from', injury,and'-damage' 'from such vehicles when performing work Within STATE�ri&'-6f way . including revj�W'and inspection on.a,daily basis, EXHIBIT D ART1C1LE,.N7'-_Equi0ffient.P . fiircfia'gel ..Prior authorization in,writing by STATE shall' be required befdrp - A PLIC * N 'T_eftters into. any :nonrbudgeted pdrchAse order. :or Sub contract. exceeding $5,0' for supplies, equipment; & . . I q __., "I. . I I1. ' 0 , - consultant se APPLICANT Shall provide an,,e d-. si b" valuation of the necessity ira il iN of incurring;such ,SU For purchase, of any item' seiNrice dt, consults hot fi d in APPLfi� X_T- s 'ilidenti p A -Cost Proposal and exceeding $500;. with written. 'za ' ' 'Ai " ' ' prior aut6orl . tion', by. STATE; three (3) competitive, .4bOfation§ must'be Submitted. with that, reabsence- I _- . -1 , quest Or the ' of .inu§t.be adeq j pately y5i�f�pd. Any equipment purchased: -asa. result ofithis�Agreemda is "subject to:paragraph 3, of this Article, V.. APPLICANT shall maintain. an inventory of All nonexp -ty 1, property' fmd�blep oper ,,, e ine as property' R ,useful Jifd of ai- I' pas tw o, years and. an acquisition' cost of �560, or: ffiote. I Ovr6hased, ion f equipment needs replacement. and is 'sold or traded, ih,,.STATt shall rece'j' a proper refund: or credit" Upon the expiration date othis Agrqerne nt.cir'ifthi�s-Agreemi�ht-'iszteftti4nated. ARPLICANVT.ma�- either keep t49 equi ' pment and credit17n STATE, in 4n 6.ount. _ equal to its, fair"maiket vAlue. he , quipment,. at the best price at A public or iv"or SellSUC prate, sale in, accordance withs established: STATE Pt.bcd.dyte§; and credit STATE in an amountclual to thd.gAles,price. IfAPPUC ,T\1T-`elects to keep that equipment, fair market value: Ad.11 be: dei'(.,`1"T'n'inpd,, at APPLICANT'S l expense;n the Sasis, of a 'o competent, independent- appraisal, of°lsucfi equipment. Appraisals 'shall be obtalne' ''d from an; tappraiser mutually, agre,,eabfe-to.-STATE, 4-andd*.APPL-ICANT. Ifit'.... determined ,'sand JS sell the equipment; pment,- the, term ......STAT ....I..,q conditions"of 'Such. sale-rnust.be 4pprp:,v in advanc by ARTICLE VI ManagE-, inent anti Maintenance of Pirboety. APPLICANT Will operate,; manage and..-maintainA into, � the: "future all property' acquired; developed, tphabil4restored :with functransferred a�pq ;.or through I this,' reeffieni,,:VNrith.STATE's prior. I approval, APPLICANT or ft§� successors in,: interest my- irarjSfdr: management, and :maintenance: responsibilities over the :propert)""'If the; property is :not, managed and mbiriiaihe'd consistent with the PRO , JEC'T APPLICATION, APPLICANT' or its successors ,j , P . . 'iP't*S:t,.4Jh.e .4isc .reflon of STATE .and wiffiffi-45,days'after eceivingnotic&toAPPIJ�AN by StXTEshall 'rei burse:STATE : afi'Affiouhf At least equal to the amount ., of -STATE's funding `participation: in, PROJEC 'to 'ge , her with all: accrued interest at Statd.Treasbre,espoole:d, Inoney,'invesiment account.. 2. All real property, or rights thefeto, acquited with, 1 acquired - . . these funds .shall be subject, to an app'toptiaie.fottn.'of rest.rict.ive,jitle, or rights, covenants. approved 'by- STATE. If the PROJECT real prqperty,_.jor..right§ thereto,, is -sold, traded, condemned, or 61her�Vise put -to any use, other, t . han.that use as, approved in the Allocation for Sfunds. 4e State Highway., Account, � - h At thediscretion; of STATE ,and within 45.1days notice by STATE,. Shall be, reimbursed an amount at. least equal to the.- amount, of the, STATE's. funding' p4r-ticip' 'PR6JECT,or the � pro I rata 6ir I arket value 'pf"the': I I � I 4 -ti Ion , in , real property, or rights ;thereto„ including improvements at, the time' 6f-sAle-.1whichever is higher. The. pro rata fair mArket;value shal] be based 6fi, the,pr9portions of the, fund transfer amount applied toward ar the purchase, of the prope;rty, �or- rights theretto,, and, the design! and '6onst �ru ctionf - o improvements in, proportion to the total, purchase price: of the real property,, . or rights . thereto; and' the co I st . I of all improvements ft)Ad1p'prior *to the-time.,of sale. race S of 1"T, EXHIBIT D ARTICLE VII .Wtefitidfi ofR&6rds/.A,iidit,.Re'vi&W,P'ro'ced"ure's I V10 ific,,pqrpose of',deitermihing compliance with1 Publ ic Contract Code 1,01 13;,6t, seq. and Title 2 California.i-Co&'of Reg'UlAtioris_Cha6ter 21, Section 2500.et seq..,cyhen app licabl'ej and oihm mA . t . ters connected" with the't)erformance of the Agreement. pursdant to Government Code 105`32,. ,APPLICANT, its: contractors and, their' subcontractors: and, STATE' shall each mainiain all books, doc rhents, papers, '&fo �e, accounting records, and :other �evidence pertaining to the p r.ffiAtf of this Agreement. All.,part parties make such m,A.t,driaI§ available at. their respqcti'Y e. offices_. at. all reasonable; times during -the 1, Agreement period, a-ndl,"f6r, four (j) years,.1rom, the d I ate.,- of f. - inal payment: under this. Agreement.. STATE, the State auditor,. the Federal Highway - A.di,ninisi,rati6n (FHWA), or any duly, authorized representative of the. Federal g9v,e.rriment, shall have access to. anybooks, fedords,, and, documents of APPLICANT that are-pertinent1to:,thi§ Agreement foe.,Audits ek6minitio 61701 '-ps, excerpts, and tran§actions,-.and'copies thereof -shall be,furnished-bvAPPL,IC.ANIT ori.t��,,.conttactors,'iftequesti!d. _ Any dispute cionc-emij ing a'.'q_u'&sti6h, of fact arising under an interim or.post audit. of this A,greem-ent that is''not ;s-atisfactorily di p-qsed of by agreementshall be reviewed by the Cha irper§6h of the st TjE AuditReview Committee (ARC): The ARC wil1_66nsi§vof ihe s Istant'Niecim Audits & $66 rity (Chairperson), D Director�of Transportation: Engineering; he Chieff, Counsel„ Legal. 1?ivisibn, th .the Di' or eir designated' alteriiates' -arid two fepre,sdntati�-09 app'q)nitment 'by rector .of Transportation. from- briva.te `*_,hos; role. will be;. advisory in nature.. only and without vbtin& rights; .Not later than 3p days aAerjssuance,�of the finaFaudit.-T6p6ij-j APPLICANT. may-'r-equest a. review: by-, the -ARC: of unresolved "audit . :issues: The request_ f6r. revi'e'w will be sub : m . ited,; - in writing. ,to the Ch: aiI�rsohofth&.AFC..hq,�request -must-contiin detaile in ormation of the factors involved in the dispute as well as justifications for reversal. A b."-.' e ARC will 15c. scheduled " f -the, mdeti-fIg y th'.. Chairperson ii further.' r6V,' warranted. After he meeting, the,: ARC 'wiff 'make concurs je)y ;is Fpcommendations,twthe,'Chief Deputy, Director. TheChiefUO'uty'. Diteicto"Ywill I make the final decision : f6t STATE 'Within' one (j).mdrith 116116wing the receipt of the,notification ,o dispute or: following the ,M,C'Meet.ing: recommendation, date,,,whichever pis later: in time. Neith&r 'the pendency- of a.dispute nor its' consideration by. STATE: N?6 I . I . excuse 0 APPLICANT from-1full and -timely performance!' f its-olb igatibn§ in-atco"fdan'ce with. the terms of'this Agreement;.. 5-. Any subcontract entered, -into as 6,resuli,of this Agreement.shalfcodain all the provisions of this Article VIL .6... Expenditures of E ibanciAl i�fid'I.Icorftpl'ia*n"c*e"a'udits b' FNI program:,funds are subject to, f" ' y the. State Controllers Office and Caltrans Office of Audits and ln�e tigaii6fis. These guidelines may be Investigations. f6utid in Caltrans Locol-Ass.I.S'lance Procedures Chapter 1,0, "consultant Selection"; Exhibit, ,O -N '`-Accounting. and, Auditing, Guidolihes` for Contracts4ith Caltndns',%; Page _6 of 17 EENV20 I d(435) EXHIBIT D V11Alo ARTICLE ,1, � �.- ARTICLE ,, - I wabl!k,..C9sf$;an.cl faymenfs,� The method --of 'i6imb'u'rs'e'*m"''e'n:t,,autfio-fi'ze'd by y STATE- f6r PROJECT expenditures: made" ,6Y! APPLICANT "under this -Agreement will. be.based,on';a:ctual costs incurred. STATE"Wi'll'rei M-*bUt§e the STATE',s PROPORTIONATE': SHARE 'of -hcWhl cdk§ (based on- Section '111Exhibit ' * f A, and o 'including labor coits, em lo P. Yee. benefits, _travel, equipment rental -costs, and other direct costs)'incurred, by APPLICANT in performance)lin'uffed, oftheWdrk. APPLICANT Will-*fi6t.:6�,'rei'mbu"�sed�for actual co h - r I. APPLICANT -1.1. -1 1" 1.- m... . ; , _ � _ sts that. exceed the .'--estimated ' 'Wage.,rates, employee benefits , u rates; and traveli equipment fringe benefit. rat forth: other ,estimated. costs set im . PPLICANT's cost Prop'o§al: (Exhibit AI) unless addibonal reimbursement is, provided for by Agreeft!pt .4melldment.. Inthe: event that STATE., determines addit'io al.workbevond that svecified, in APPLICANT'* cost'prop6sal and this- Ag'ptement is required t6 - produce A "satisfa i y .c or - PROJECT costs:.. e 7, the 4ctuil bl by STATE may be,1ftc rea'scd, by' . A -ndmenf't6 acpommodate. that additional work-. The ..-, 'akimuin totar costs as sb&ified in Section. III of,Exhibit A ot'this. Agreement ., shall not be, uv... -.Agreement, nless Apthorized y ahiendmeift, 2- R64ib.Ukseffieriflfbr trah9portati(51i and subsistence co§ts.,sh6il not exceed the rates to be oa,i,d,� nonfepresqh,ied/,excluded State tate employees: .under then. current State. Department of Personnel Admin-istration'Tules detailed in the.-C'altrads. TraVel And Expense Qqi& 1 General and administrative PROJECT, overhead is unallowable und' f the Resources e. Aeney "of Cali f6rilia's Environmental Enhancement and,J q. - itigqa iz Program 0 TO m Procedures and Criteria guidelines:, Progress, payments will be -allowed and may7Ibe,,made no:A . dssthan"-monthly hthly. ih, arrears based.onPRO-J_ECT work p I erfori-hed" and allowable in(qjT costs iutho authorized as% Dari of the: PROJECT. .- APPLICANT,-may-na commnicie Any rqim u rb bl'e:.PROJECT devdlopffierft. work or .s.a services.' or PROJECT capital builay'w6rk'be, j:bre,,,.,both-. I . .. program - . ado . ptio n .and ffind'ing all&ation by the Cilif6mia,- Tidrisportation: Commission and 'execution ' . o is PROJECT a9feemeniv by b6ffi APPLICANT and STATE-. Reimbursement is subject : to annual, appropriation bythe 'Legislature in the State. Budget'for: the, Environmental Enhancement and Mfti#4tibnTfogram Fund 6: APPLICANTw e ' ill'be-r imbursed as promptly as fiscal. procedures will permit upon'receipt; by STATE'sloca�l Program Accobnting'offitd,'in the'-Diy'n isi6i__' f Accounting _ 'o of,. s,ignpd,invoices. One originaland t,V&'&0pies of the 'jnvoicd`(inrm4t,sho, the fj -,wn�,mExhibit C)shaifmbesub 'itted.afterthe' performance o w ork.f6r wliichA,P LICANTis. 'P , - billing, - l " ' , , , IIInvo'ice,sI §ha11ll .i -n1 , I: ied-6I detailed .. tail6d`backpihfofmatibhsupppting,the6tk�erformd. Th6Ifinal �ih,oice.mustcontain,the.fina, cost and , a ll credits :due STATE, includn&.credfts orreimburseme)its.due:,STATE for any equipment purchased under the provisions ofArtic,le'Vo'fthiS'Agre'em"ent. Pig)liri�s's.Atidrinal,ijqvoice as,,w . ell'as the Final inal : Pro I jec . t k,'x0.0h.di0rb,Report shall, be.,.mailed-to the Caltrans'Disttict birector,'ATTNDistrict.. L66Local., Assistance EngifiieOr (DLAE), for 'irov-bice ap-ftoval. The DLAEs will.f(5rward invoices to the Ac&.otinting OfFic'elof-pa yment.. ARTICLE, 1X --Cost Principles: 1. APPLICANT dgr.6e'§, to comply with: 1), The .,Resources Agency of I Ca!6 la:' M s Environmental -California 7 ohmental Ehh ncem nt and Mdigat t�`,o n! PM&am. Proce, duresz,and Crii6ria, and 2) Cdl Transportation Commission GW& - Aiibcqting, W?#�qring; and or Auditing. o udi " f Local AssiSfdnc& Prbj�ects., Pace 7 of 17 EEM -'2010(03 EXHIBIT D APPLICANT 1 1 h'-th'o'f6ll6.wihe.:as�apt)li'cabl,.e.: A Federal A-cqul '". The Cost Principles and. Pi6cedur6�, 4& CFR,. Fe Acquisition Regulations 'Chap e a�ions System," ter.],,Part 31 et §e� jw.hil h" -shall- be followed -to Oeteri-niriethe q ic allowability. ofindivi ua�'ite'm§,�ofc"'os-t-'fiol.r-'w.hich,reimbursemen.t.is:souiahi,. 11 . . items.of 4M. - 11 � - . 11 i.l.... _-1 - sought:; 9 CFR Part.,l 8, Uniform 'Adhii'nis'trati'v-t".R-p�'qtii'r'emetits, for-Gidn't9 and Cooperative. Agreements* to State And LocaL I Goyemmenis and. Officeof; Management and Budget,, Circ6l,ar,A_'87,j, Cost Principles forState,-dnd, Local 66V.erniiiefiis,:. Q) Office of Management and Budget Circular A-122;: Cost Prinkipfe's for Nonprofit pnjzatJ'qns, "Whith shall, be.. used., *to, Aetery-nine cosis :of grants,. contracts and other, s'�,,universities�,and hospitals.}: ;agreements-withjnon ifprganizations� (excluding co'llege . prof p ,PY Office of.:Nfinagcment; 6-6stTrihc1ples f6r Iffaucafib'141 Institution tftablisliiiig'. principles for ,&t.6-rhihing'costs a'p'pli.cabje, to grants, contracts,. and :other agreements withieducai-ionaf, -institutions. E) Offiil�& of M4ftagernerft and' 'Budget: Circular A-110- 'Uniform Administrative Requirements, for Grants and. Ageements with-, Institutions of Hiaher Eldtf6ation, Hospitals and. other, No6ptofit,Dir"ean' iz'afidns 3, Any. costs . for, which ljich pay pf has �,.� been. made, to APPLICANT, - that - are" determined by bj e' it subseqpent,audit..to.be,urial]'Owab]6 un'der,Paragraphs I 2W thi§,�Article IX'Ar'd subject to,r Daymen - by. -, APPLICANT `t'6 STATE. 4; S6uldany `6dhflib-'"- 'iiiihe,STATE,-'guidelines. '.as,described 'iniParagraph, qn.d*. P 2-of,this,Articl'e lX,-tbq�.fQllo,.wing...pr0e,r will prevailand15:e'applied as fbMWs4 0'-�-kesbufdes-Akehc'�. of Z .. California's Enhdwe'Me''nte and ..Mtigq1ton,,, Program Procedures, and- Ciitgrk*.2) Cqlifiorni,� T�ansporiari6n.; Conimission Guidelines for- Allocating; Mbnitori I ng; and Auditing, o Ld- a[ 0, c Assistance Projects,- 3) 48 CFR, Federal AcqumtionlRegulations System,.Chapter.l, Part 31 of seq ,49 CFR, JWeMl Acquisition. kegiblatio System. Part T, Uniform Administrative 'Requirements, for ,Qrants.:&and Cooperative Agreements,,to State and. Local Government;; OMB A-21; Cost. Prific,iolesfor Educational Institutions;; QW' A,_110. Uniform. Administrative Requirements for ;Giants and,, Ag reements-wiih Institutions of Higher Education. Hospitals. and Other.'Nor�prbfit�Orgaiiizatibiis!-;OMB . 4_� - $_ - A-122,,Cbst Principles for Nonj3rofh-Organizations;- andOMBA-87- Cost Prin6ples f6r'Siaie and -Local. S Government. .— 1 9 , '. ". 5. Any subcontract entered in'to:as'a result.of this Agreement, shalt contain. all the prpyi'sio'ns. of this Arti-de IX. 6. Should APPLICANT' fail to reimburse moneys due STATE within thirty (30) days: of deman'd', or within such bther-perio'd *asm4y bq<agr'ee'd bety,eenithe parties fiereto;.STATJtAs. authorized, to withhold future -Da vments due APkfCAN,T from any source, including but not limited td,'. the, State: Treasurer; .the State Control ler andtHe Cal' f'dmia Transportation Commission: Oa'ee 8 df 177 EFM12619(935) EXHIBIT D A . RTi*CL;RX- Sfikbfitfa&ing�. I. performlh(: work contemplated awn organizationportion of the work h i`gA 'e :A911d PQPq pertinent: to t gr e written -authorization by-§TATE, except that .which is. expressly Proposal -(Exhibit -.A4 with- rtsdUtcesravailabie: within e . nt. 1. shall be subcontracted without: iden-fiflied.in .APPLICANTsl Cost: ,2-. Any, sUbc6ntract in ex&sslof$25,000, Brit -red'. into as *a -result .of this Aa'reeffieinit.k shalf coniziin.411 thle,orovi.sions stipulatedjnihi's Agreement and:shall be applicable.to-all stibconiractors. -3. Any 7SUbStituiionof subcontractors.: must beivprove dinwriting by STATE. 4. Any subcont'racttentcrod'iniQ. as q:result 6f.'th.isAeredmcnt,,shAll'cpniain�-all.ihe.,provision's of this Article X. ARTICLE X-1— lhgii-rdik6 I If the _scope of APPLICANT services will:not require APPLICANT ora subcontractor to enter 'upon STATE- highway right 'of.wa'y',,_ihe fi,the- APPLICANT is not required to I how, evidence, of ,general':clomprehensivc'lia'biiity. insurance. In ihe ev.e.nf that APPLICANT QT.ap agent; -.contractor or su . bcontractor.,,of APPLI . CANT wilFbe ptesehc,dr working! on STATE, right o -way;,prior o codescribed" herein. the. APPLICANT'siliall f6mish to, ST -ATE a,'Ce ificate of..Jnsqr-ancg.-, stating.thai-t reJ& general "t J " ` ` "I"', - , *: . - , � , � , ' . _.. "I.., - 1. , "' I he ., � , general. ,comprehensive liability insur-atice-.priesently',iri -e ff6ct, for. APPLICANT an-d/bt�lit�.�agdnts,.-C'ontAct6ts, and si1bcdh&aci6'fs1:-.y. 'will be" 'k- :�q4nner)-Ok,$TA ih I imit "r, working (in f 6 . _ Orsi single - STATE �i-,11)i a tbffibi e (CSL);of,not,FessThan -one million dollars"($1 0,00,000),-por- occurrence.. Tfie,te'rtificate. of.In-su.ra.,nc.e-,must'-pTpylde-: A. That- the insurer will not -cancel the insureds coverage without '3'0: ayprior ,.". That-, 1 _ :STATE'. I'll - .1 - .1 days notice; td theSTATE;. B,. That, the -,.STATE. its officers, a9ents,_emplOyeesj..aftd servants are also: included as additional named ifisifreds, but only insofar ` as: ,PROJECT 6f)eiafi6iis- 'under" this; Agreement are. concerned.. C, Thai5TATE will.not- be responsible f6rany,prernjums-or assessments on the. -Policy, 4: APPLICANT a.gf.e.Os. fhht'.10111 bodily injury liability or-self-insurancere.qu1ired ,berein shall be: in effect at all times -during the term of this Agreement., In the event said insurance cove- at any time or duiribg ,the term of 'this A 'eernent, APPLICANT agree 1. s to, _rage expires gr. ,proVi'de, at least thirty, (3_0). days prior to said expiration date, a, neve Certificate -of fftsurdnce or.* ,Certificate of Self-lnsutance'dvideti6ng: cbvcragii, as provided: for hdiein, f6f, not less,'thah the i&dffiAihddf of the term. offhe A r a period of not- less than one W gregnIent, or fol, ...fl)'year. New Certificates are subject to the approval of STATE and Department of*Generaf Services.. In the event,APPLICANT fails to keeb coverage as h&feHfi,proyi. ed in,eff&:tait all iiine-9. STATE- may, in addition io any other remedies it may fiave,.terminate:this Agreement upomthe occurrence of such-e'V'-ent.. Page'9 of 13, EEM -2010(03.5)' EXHIBIT D �5:.If APPLICANT is self insured the EEM PROJECTAPPLICANT -shall .submit _,4 Certificate, of Self Insurance -.assertinz that APPLCANT. i.s,covered for allpurposes; of.liability-for all -work. perfo5tifted hefeund'er. STATE"anid'APPLICANIT ackhbWledgd-',that,ohVV brie, Certificate 'of'S'&l f-: Itisu'ran e will'b:r6i4uired,�pd-ifiat,APP.L!'.C-A:iNT.,must maintain that level -of ;Selflnsurance,no0ess ihan,om,million,a6llars, j00'0,60'0')j%-. It is.a I *so understood that- STATE, its officer, agents; s employees, and_:sqr'%'1a'n'is" are - included as covered for all pprpg5qs ., -in §ofar, as the . operations . . of 'A`PPLICANTunder, thi',�Agreement' are :coneemed., ART1CjA';X11'% NliscellaneouseProyisions ..I.- Neither STATE -nor. any ,officer, or employeeihereofjs responsible for any injpr-y.,, damage,,, or liability occurring �; by ire-ason of anything done or omitted to bd.dohe by. ,APPLICANIT Under or -in connection,. with; any work,. authority -or jurisdiction conferred,. upon ,APPLICANTT 'under this Agreement'.. lt=4s understood,:. and agreed that, APPLWANT; shall Pully defend, ih&rfinity and' save ha'p"n'less STATE' a:fid all. of -its officers: and-.6n0py' esjr.6m: ' 11 claiihs� surfs actions of .p. ;a. a ions of every name, kind and -description9 brou ht, forth Under, iheluding-,,but---'tiot,limited to,- tortious: contractual,.i , n . vers , e, and.. other theories . or assertions of liability. o6cu''r6h;g, by reason of I g done or ornitte to, be done by APPLICANT under this Agreement". STATE"resenes- the xigfitio: represent, itself in. aihy,litigation i whi6h,..STATE' S •fift6regts'arei�at stake.:: 2-PPLIC T,' and..the agents=andenipjqyqes,of APPLICANT, in -performance, of this Agreement,, shall actin- an independ6rit.capacit d1b6t as employees of STATE.. y an oyees,,or agents 3. '. .Following written notice. and at least thirty y.:(30):days,,tol-cure, STATE:. may: terminate this Agtee-me"n't with A.PPLICAN'T'sh6i!ld.APPLIC)�l�T.& .. fail f the: c6Vehah6t hebOfi contained at' 9 Pqr. orm... 'the I time andin.fhe manner herein provided. In.the event of such termihation,,S - TATE,may pr_pq6ed.with the PROJECT workin 'any" manner` deemed proper by STATE; If STATE terminates this,Agreeent.; I — - — - . _ .. Im..: - with APPEshall pay Ti. suM of. Allowable costs APPLICANT; APPLICANT*fhe� dueAPP, L ICA�4,-T under .this Agreement pri . oprovided, r fd termination, -ovid . ed, however,., that' the' of PROJECT c6rripldti6n'tb ESTATE shall first be: deducted 'fro I m .. a I n . y . .su . m . du 1 6 APPLICANT'Undei% thi'g,.Agr6em en and the: balance; .if any', shall then paid APPLICANT . . upon demand. 4. Without the: written, consent; of, STATE this Agreement: is not;:assignable by APPLICANT ;'eithef"iriwhole ot'in part. 5- Tlme,is- of the, essenceih this Agreement. 6. No afteratibrf or. variation of the terms. of , 'this -Agreement shall. . be valid I - unless maid . e in writing and signed by. the parties hereto, a - nd,no oral, or understandin''gagreement n't norifi6omofated herein , .shall be, binding onaany'of the:parties hereto. , 7. The. consideration to be paid APPLICANT as provided: Herein, shallconstitute, full. comptnsati6a. for all bf'APPLACANT's Allowable; approved costs; )and expenses, incurred' . in the performancehereof,' unless otherwi§e;exi)ressly so- provided.. Page I 0"of 1,7. EEM -2010(935) EXHIBIT D $.. APPLICANT'"warrarits, by. exec .utiori of this.Agreement, that no person or:selling agency has been employed or retained to solicit or s,!cure this Agreement upon an agreernent,or, understanding fora corrimissiori, percentage;'brokerage,: or. contingeritle-d, excepting -bona fide ernpfoyees or bona, fide established c.ornmercial .or selling agencies maintained. by APPLICANT for the purpose, of securing business: For breach.'bf violation of this warranty; STATE has the right to annul this Agreement without.. liability, pay only for_, the: value of tie work actually performed, or in; its discretion; to deduct from the, . price of consideration, or otherwise recover from APPLICANT, the: full amount of such corrimission percentage, brokerage; or contingerit.fee.. Iii accordance with. Public; G3ntract.Code Section. 10296, APPLICANT ``hereby states - r penalty of perjury that., no. more than one final unappealable.find ing of colitempt of court,by a Federal court has been issued. against; AP. PLICANT within the -immediate preceding hvo-year period.; because of APPLICANT's failure io.cornply- with an order of a Federal,.court that orders, APPLICANT to comply'with.an order,of the NationalLabor Relations Board: 10 APPLICANT shall disclose any financial,. business; or other relationship .with STATE'- the TATE;tk e Resources Agency,. or'the 'California Transportation Cornrrilssiori (CTC) that niay Ave an impact. upon the outcome of 'this. Agreement: APPLICANT. also list current associates or clients -who may have a fnancial:interest in.the ouicome:of this .Agreement. J 1.,: ,APPLICANT hereby certifies that it doe's not now have h6r. shall it"acquire any`finaricial orbusiness lnterest•that'would conflict with the performance.of this Agreement. 12'. --APPLICANT warrants ihiit•this Agreement was, not, obtained, or secured through rebates, kickbacks or other unlawful consideration' either promised or paid to any STATE. or-Resoutces Agency, erh'Ployee: For breach or violation of this walrantu; STATE shall.have tli'e°right, in. is sol&dikretic n, to r terminate the. Agreement without- liability, to pay only for the work. actually perormed,::or to deduct, from did" Agreement_pnce or otherwise recover the .full am_ ount of such 'rebate;. kickback,, or* other'. unlawful consideration. 13This Agreement is ;subject to. any ,addiiional'_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:Agreerzietit in.any manner: This A L_ re.ement shall terminate on.Juhe 30', 2014' -with project catnplet on and final invoicing done by April 30,, 2014 --or-upon. the earlier completion of PROJECT, whichever is first. earlier i'n:time;,."except'thatAPPLICANT duti.s.regarding the continuing operations and"maintenance of PROJECT property, credits. due STATE; and indemnification of STATE shall survive. Pajze� 11 of 17 EEM -2010(035) EXHIBIT D - 'A ebyth6r duly auihorized,Qfficers. IN WITNESS WHEREOF, the paffi8-hiiVe�xecutedJ I . hIS grepmO STATE; O. CALIFORNIA -DEPARTMENT 'OF TRANSPORTATION' Aphi`N' prispriat ion Engineer _ . Jtsos,..�.i.enJor_T Office, of Special andDiscretionary Programs. Division of LocalAssktance 1.11201"N' &.feef., S,a#Ar.nentb, Cahkmia 95.8 14--, 'Pape ;12 6017. EEM. -2010(035) APPLICANT 13 -APPLICANT. Repres6tative-Mri e and, Title Agencj,, Ad ress 'operfino C-4- q1-,7sb1±e City, tale, ZIP,' +`16- T77. Telephone No.. e- B-mail,addres& �VbA<S EXHIBIT D EXHIBITA - PROJECTIDTSCRIPTION AND FINANCING APPLIC-ANT.: Cityof 'QUOoftiho PROJECT NAME;. Stevens Creek Corribr Park,&.R6st0rAtI'01Pt0j6_ct,Phase-2; COUNTY: COUNTY: Uq.t4..Claira, L Projectlddatiojj: Flnal'.S'egmepf'oifthe tfAifbetween 'SievensCreek Blvd. and,M I cClellan Rd within ihe City of pq Cu ' tiino., .,. M Project Description of -W ork,Propos4,-cl'-(2it-setforth in"AOOIicatioil'Nb):.,035 Proj ! ect'w i I[ektefid t he',fie"giopalm ulti_b,s,! ,4- Stevens Creek -Trail, ies ., tore.riveAne and riparidfi'�habit�Azilb g 1' . . '_ -..' , . ,n '90 f6q�t of Stevens Creek,. and open 15..Iacres.of parkland to'the publIc.-. Approximately;:: -1/4, acres will be an'- planted.'Withnative,4di -Welldhd and oak woodland plantings;, & local, orchard opdned.to"' ublic access�:With "a new trai ; n p - . 11 . .. I h- I 'I a, Y4e creek.channel-will, be. widened . t . o create , 550. feet.of pool and bffle'strearn hal itat.,A new: backwater wet] and.area:-wi6" Existihg-contrete:and-nprqp chan .1 it] be removed ftbffi'thd."creek-dfid the bdftks vegetated with hative-p,l4ntings, -ift Proposed- Project F''und.linig''!, A., tSTIl TED TOTAL PR0AfC'-j,'(`,0` ST: $'2','695`000 00 I§ihis amount diff6renf, from that -set forth -h`:he APPLICATION,? IRROXICT F INANCTN61': State Fdndihg S 24 0 10.00't 9.10%' :: Of total projpc cost Applicant Funding 2-j450i'009.00' 90-90% of total project project cost Federal Ftifidifig (if anvl S 0,100 Tqtzkl. Proj'eci Funding- 1',2.695.000.00 -100.60% of total. project dost' *N.0,TE; Thi's perc n't i ferred,t.o;i'n,this.,Y�geeiiientas--he,�l' 4A RE eq.agp ts,re A _ATEs PROPORTIONATE SI of osts and will bp'used as the reirnbursemerit'rati6 on the project: G., Thd4riaxim'Urn, amount of STATE f�pdl ing app�,qvcd'by the � CTC that may be Contributedjo i6. k0JEC : T . s - hall, . not ex I ceed §'.245,0616.4)6. Page EEM=2 . 0 1 10(0 1 35) EXHIBIT D EXHIBIT At- C - OST PROPOSAL (This iniist lie completed by,.4PP.L1CA-ATT fO'rall ts r u I I s.W and. projects, qn ypr9jects etUrnedivith-4 State Agi,�ment to MT4T.) ' APPLICANT:' .'City. -,`of Cuvertihb .PROJECT NAME; Steyens Creek Corridor Park.,& Restoration P.Tojpct. Phase 2 COUNTY: Santa.,Clafa- Direct Labor: .$0. (jqbqrrah?s6 must be calculdted a's acfuatdol1arearned 'per hour and.,cannot.include-otver4eadcosts): .Classification_ Name. Hours, Rate. Total-' Project Manager Total D ireJct.Ldbo r. Costs (Benefits, such �as., vacation, medical,* and retirement,' elc,, musf:be-calculaled as rates earned per hour).. OthevC ost's: (it mize'with,'-description, quantity; unit price, and, total eost; estimates acceptable) Tkavel"Co"Sis.-, E4uipifi I erwAhdSiiOplie'es- Oiher , birect'CO.sts,. ,SUbcorAncf6r.Costs'? 'See affacheid s-he'ets* (004-0 scopwvf. Workaftd,detailedcost estimatefi&'each subcontractor) v6luhteer.,S6ryice§ $0,. bqssifi'cationl, :-Name Hours Rate Total Volunteer Total. Volunileer-Labor.Costs. Dorfatibns $0.' -(itemize with-descrip#qp� quaptity, unit price, and totalgost, estimates. -acceptable) 'Materials $0. Other See attached. sheet T6t4j,Pfbjqc t.Co§i- 52,695,000 ,See attached;' sheet P� 4 of 17 M= fO(035) EXHIBIT D 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 1129. 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) Date of Invoice (For all Invoices) Department of Transportation Division of Local Assistance Name, District Director District Local Assistance Engineer Street Number City, CA Zip Code Attn: District EEM Coordinator EXHIBIT D AGREEMENT EXHIBIT C - SAMPLE OF EEM INVOICES (Prepare On Applicant's Letterhead) Billing No.: 1, 2, or Final Invoice No: Local Agency's Invoice No. Project Completion Date: Final Date or "Ongoing" (if not final) Tax Identification # County: County Name Project Location 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 Engineering Total Costs to Date ** Less: Nonparticipating Costs to Date Total State Participating Costs to Date Reimbursement Ratio Total Reimbursement Less: Amount Claimed on Previous invoice Amount this Invoice Construction Acquisition and Construction Engineering Incidentals 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 thaproject 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. Name (for questions about this invoice) Phone No. i Page 16 of 17 EEM -2010(035) EXHIBIT D AGREEMENT EXHIBITD - FINAL PRQJECT EXPENDITURE RE -PORT (Prepare 0 Appl ic ltsLe Xaihel District Director M"p ahi-h&nt,.of7ransportaibn, Street P.O. Box: City 'itA,Zj; p Code . '. .--p, Attenti . on:.-JVamg, D.is.trict,Local.,As,s,isiance.Engineer- Tinal Froiect Expenditure iture RPMQ-r--t De§criptidn/Location of Work: Project Completion Date: TOJ, — Expendit,ure Authorization: project Number: State -Local En'titY Agmemen(Number: Siat.e..,Funds�Allobated: Expenditure, Incurred:. A. 'Pavrne ht to Contractor Total S ,(A&ch M fitolpqyqsti ate)' B. Other .Project Costs: Preliminary Engineerirfg C6ristru6tion Engineering,, Any-Addi , tianal C6fistruc.iion -Right of Way. (Capital And Support): "Po .. - C.. Liquidated Damages; D. Outstanding Contractors. Claims Sources. andAmounts ot.Additionaf.FundsQag! State Funds Allocated But Not Used: CERTIFICATION' Yhere'by certify that: To the, best of,my knowledge and belief, the i1ftrmation in this repgrt,is 'atrue and'accurate record of project'costs; The work w, as perf6rmed in accordance with the CTC approved; scope �and state funding: for r ffie..roi— p ect. Title,and Upt of L&al Agency Representative. PROJECT VEA-IFICATION, This' vefi I fical . on ofcompletionalso,cons�titutes approval to pay costs- shown in..the-Finiaflnvoic Invoice included in the: Report of Expenditures,. 'I have reviewed.. the Job,site and found the project tompfetdd in Accordance, with the scope and, description of the project, authorization document. Distri 6f Local Ass isla=6 EnDate:9 � . . 17 of 11 , ;EEM =2010(035) �201.6(035)