Loading...
15-109 Cotton Shires and Associates, Inc., for "On-Call" Geotechnical Inspection Summary Services for the Sun PropertyFIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND COTTON SHIRES AND ASSOCIATES, INC FOR GEOTECHNICAL PEER REVIEW SERVICES AT THE SUN PROPERTY This First Amendment to the Agreement between the City of Cupertino and Cotton Shires and Associates, Inc , for reference dated Jul y 27, 2017, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and Cotton Shires and Associates, Inc a California Corporation ("Consultant") whose address is 330 Village Lane , Los Gatos , CA 95030 , and is made with reference to the following: RECITALS: A. On July 2, 2015, an agreement was entered into by and between City and Consultant (hereinafter "Agreement") for geotechnical inspection summary services for the Sun Prope11y. 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. Paragraph l of the Agreement is modified to read as follows: The term of this Agreement shall commence on July 2, 2015, and shall terminate on June 30 , 2018 , unless terminate earlier as set forth herein. 2. Paragraph 2 of the Agreement is modified to add additional language as follows : Consultant shall perform additional services set forth in Exhibit "A" of this First Amendment, which is attached hereto and incorporated herein by this reference. 3 . Paragraph 3 of the Agreement is modified to add additional language as follows: Consultant shall be compensated for services performed pursuant to this First Amendment in a total amount not to exceed TWELVE THOUSAND AND FIVE HUNDRED dollars ($12 ,500.00) based on the rates and terms set forth in Exhibit "A" of this First Amendment. 4. The following Exhibits to the Agreement, are amended and replaced to read as shown in the attachments to this Amendment: a. Exhibit "A"-Additional Serv ic es for Geotechnical Peer Review at the Sun Property 5. 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. ~~TY:x,~ Title £li![ )I~ Date ~IJ/J.7 7 {ff City Attor~ey ~cS?lw# l)'Clerk 1-b -t, EXPENDITURE DISTRIBUTION PO #2016-119 Account: 100-71-701 750-010 Original Contract: $10,000.00 Amendment #1: $12,500.00 Total: $22,500.00 r ~ COTTON, SHIRES AND AS SOCIA TES, INC. ... CONSULTI NG ENGINEERS AND GEOLOGISTS Mr . Chad Mosley Department of Public Works CITY OF CUPERTINO 10300 Torre A venue Cupertino, California Exhibit A Jul y 26, 201 7 C50 75 SUBJECT: RE : Proposal for Geologic and Geotechnical Peer Review Services Seven Springs Ranch, Proposed Development Ongoing Fault Investigation Dear Mr . M osley: At your request, Cotton, Shires and Associates, Inc. (CSA) is please d t o provide you with this proposal for ongoing geo technical se rvice s for the Seven Springs Ranch fault investigation. As you a r e aware, we have been reviewing the initial stages of the proposed subdivision of the Seven Springs Ranch, including the ongoing fault investiga tion . The following s cope is a general summary of anticipated upcoming tasks : GEOLOGIC AND GEOTECHNICAL PEER REVIEW A. Fault Trenching Inspections -We will inspect multiple fault trenches excavated on the property to document the geologic conditions at the s ite, and the Project Geotechnical Consultant's findings . B. Review of D o cuments -We will review submitted reports, plans, tentative maps, etc. to assure conformance with City guidelines and local standards of the profession . C. Meeting-We will attend a meeting with yo u and the a pplicant to disc uss specifics of the proje ct. SCHEDULE We are prepared to s tart immediately upon authorization to proceed. Northern California Office 330 Village Lane Lo s Gatos, CA 95030-7218 (408) 354-5542 • Fax (408) 354 -1 852 Central California Office 6417 Dogtown Road San An dreas, CA 95249-9640 (209) 736-4252 • Fax (209) 736-1212 www .cottonshires.com Southern California Office 2804 Camino Dos Rios, Suite 201 Thousand Oaks, CA 91320-1170 (805) 375-1050 • Fax (805) 375-1059 Mr. Chad Mosley Page 2 FEE July 26 , 2017 C5075 We estimate that our fees for the Geologic and Geotechnical Peer Review of the fault investigation will be $12,500 . We propose to invoice you for our services monthly on a time-and-expenses, not-to-exceed basis, with hourly rates charged in accordance with our existing peer review contract with the City . The nature of this project could result in less, or more time necessary for completion of the tasks outlined above . If less time is needed than estimated, we will only invoice you for hours worked, not the total amount. If it appears that more time will be needed to complete the project, then we will notify you in advance of exceeding the total amount quoted herein. AGREEMENT If you agree with the Scope of Work, Schedule, and Fee outlined above, please sign one copy of this confirming agreement and return it to our office. Receipt of the signed confirming agreement will constitute authoriz ation for us to proceed . We look forward to providing you with the professional services discussed above. If you have any questions, or need additional information, please contact u s . Very truly yours, COTTON, SHIRES AND ASSOCIATES, INC. ct'~~ John M . Wallace Principal Engineering Geologist, CEG 1923 Reviewed By : Patrick 0. Shires Senior Principal Geotechnical Engineer, GE 770 Approved and Authoriz ed By Date COTTON, SHIRES AND ASSOCIATES, INC. ~ COTTSHl-01 MERCADOS ACORD" CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYY) ~ 1/31/2017 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 pollcy(ies) must have ADDITIONAL INSURED provisions or 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 License # OE67768 9S?1!I~cT Jennifer Nava IOA Insurance Services ri:1gN:o , Ext ): (925) 660-3533 50033 I FAX 3875 Hobyard Road !AIC . No): Suite 24 ~~nAJ~oo.Jennlfer.Nava@,ioausa.com Pleasanton, CA 94588 I INSURER/Sl AFFORDING COVERAGE NAIC # I I INSURER A : RU Insurance Company 13056 ! INSURED INSURER B : ! Cotton, Shires and Associates, Inc. INSURER C : 330 Village Lane INSURER D: Los Gatos, CA 95030 INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF IN SURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED . NOT\lvlTHSTANDING ANY REQUIREMENT , TERM OR CONDIT ION OF ANY CONTRACT OR OTHER DOCUMEN T l/v'ITH RESPECT TO VvHIC H THIS CERT IFICATE MAY BE ISSUED OR MAY PERTAIN . THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS . EXCLUSIONS AND CONDITIONS OF SU CH POLICIES . LIMITS SHOVVN MAY HA VE BEEN REDUCED BY PAID CLAIMS . INSR TYPE OF INSURANCE ~JlJ>nL 1'WJ~ POLICY NUMBER ,f;~UCY E.fF POUC"(~-~f LIMITS lTR A X COMMERCIAL GENERAL LIABILITY EACH OCC URREN CE $ 1,000,000 I--D CLA IM S-MADE CK] OCCU R R~.~~JU9cc~~!,~~-n rP' 1,000,000 PSB0006677 12/04/2016 12/04/2017 s I-- 10,000; ' MED EX P !Anv one oerson) $ I-- i 1,000,000 PER SO NAL & ADV IN JU RY $ i -2,000,000 GEN'L AGG RE GATE LIMIT APP LI ES PER: GE NERAL AGGREGATE s I ==i POLICY D r~r DLOC PRO DU CTS . COM P/OP AG G s 2,000 ,000J i OTH ER: s ! !A AUTOMOBILE LIAB ILITY ' fF~~!~~~,,SINGLE LI MIT 1,000,000! s i -:-:-1 j I X I ANY AUTO PSA0002275 12/04/2016 12/04/2017 BODI LY INJ URY /Per oorsonl $ ! 1---O'M<ED E SC HEDULED BODILY INJ UR Y /P er accid ent) I -AUTO S ONL Y AUTO S $ ,__ ~L¥Jls ONLY ~8fo~~t~ ' Ffe?~~~dlJ:t~AMAGE $ I I $ UMBRELLA UAB H OCCUR EA CH OCC URREN CE ~ -EXCESS LIAB CLAIM S-MADE AGGREG ATE $ OED I I RETENTION $ s I A WORKERS COMPENSATION ' X I ~ifTuT E I I ~ri -I ' I AND EMPLOYERS' LIABILITY YIN PSW0003773 01/01/2017 01/01/2018 1,000,000 ! A1'N PROPRI ETO R/PAR TNER/E XECUT IVE D E.L EACH ACC IDEN T $ i ~FICERIM ~MBIW EXC LUDED ? NIA 1,000,000 andatory on N ) EL DIS EA SE· EA EMPL OY EE $ tt yes, describe under DE SC RIPTION OF OP ERATI ONS below E.L. DI SEASE . POLI CY LIM IT $ 1,000,000 A Professional Liab RDP0027726 02/01/2017 02/01/2018 Per Claim 1,000,000 A Professional Llab RDP0027726 02/01/2017 02/01/2018 Aggregate 2,000,000 DESCRIPTION OF OPERAT IONS / LOCA TIONS / VEHICLES (ACORD 101 , Additional Remarl<a Schedule , may be anached If mon, apace Is requ ired) RE: Update to Geotech report for McClellan Ranch Environmental Classroom All operations of the Named Insured, Including the aforementioned project. General Llabllity & Auto Liability : See Additional Insured endorsements attached. GENERAL LIABILITY AND AUTO LIABILITY ADDITIONAL INSUREDS : The City of Cupertino CERTIFICATE HOLDER City of Cupertino Public Works Projects Manager 10300 Torre Avenue lr1Joertino. r-.4 95014 ACORD 25 (2016/03) CANCELLATION 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 i ~~ © 1988-2015 ACORD CORPOR A TION . All rights reserved. T he ACORD n a me a nd logo a re registered marks of A C ORD I ; i ! I l I ; ! ' Policy Number: PS80006677 RLI Insurance Company Named Insured Cotton , Shires and Associates , Inc . THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. RLIPack® FOR PROFESSIONALS BLANKET ADDITIONAL INSURED ENDORSEMENT This endorsement modifies insurance provided under the following : BUSINESSOWNERS COVERAGE FORM -SECTION II -LIABILITY 1. C. WHO IS AN INSURED is amended to include as an additional insured any person or organization that you agree in a contract or agreement requiring insurance to include as an additional insured on this policy , but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused in whole or in part by you or those acting on your behalf: a. In the performance of your ongoing operations ; b . In connection with premises owned by or rented to you ; or c. In connection with "your work " and included within the "product-completed operations hazard ". additional insured under this policy must apply on a primary basis , or a primary and non-contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such additional insured as a named insured , and we will not share w ith that other insurance , provided that: a. The "bod ily injury" or "property damage" for which coverage is sought occurs after you have entered into that contract or agreement ; or b. The "personal and advertising injury" for which coverage is sought arises out of an offense committed after you have entered into that contract or agreement. 2. The insurance provided to the additional insured by this endorsement is limited as follows : 4 . The following is added to SECTION Ill K. 2. a. This insurance does not apply on any basis to any person or organizat ion for which coverage as an additiona l insured specifically is added by another endorsement to this policy. b. This insurance does not apply to the rendering of or failure to render any "professional services". c. Th is endorsement does not increase any of the limits of insurance stated in D. Liability And Medical Expenses Limits of Insurance . 3. The following is added to SECTION Ill H.2. Other Insurance -COMMON POLICY CONDITIONS (BUT APPLICABLE ONLY TO SECTION II - LIABILITY) However , if you specifically agree in a contract or agreement that the insurance provided to an Transfer of Rights of Recovery Against Others to Us -COMMON POLICY CONDITIONS (BUT APPLICABLE TO ONLY TO SECTION II - LIABILITY) We waive any rights of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage " or "persona l and advertising injury" arising out of "your work" performed by you , or on your behalf, under a contract or agreement with that person or organization . We waive these rights only where you have agreed to do so as part of a contract or agreement with such person or organization entered into by you before the "bodily injury" or "property damage" occurs , or the "personal and advertising injury " offense is committed . AL L OTHER TERMS AND CONDITIONS O F THIS POLICY REMAIN UNCHANGED . PPB 304 02 12 Page 1 of 1 Policy Number: PSA0002275 RLI Insurance Company Named Insured : Cotton , Shires and Associates , Inc. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. RLIPack® BUSINESS AUTO ENHANCEMENT SCHEDULE OF COVERAGES ADDRESSED BY THIS ENDORSEMENT A. Broad Form Named Insured B. Employees As Insureds C. Blanket Additional Insured D. Blanket Waiver Of Subrogation E. Employee Hired Autos F. Fellow Employee Coverage G. Auto Loan Lease Gap Coverage H. Glass Repair-Waiver Of Deductible I. Personal Effects Coverage J. Hired Auto Physical Damage Coverage K. Hired Auto Physical Damage -Loss Of Use L. Hired Car -Worldwide Coverage M. Temporary T ransportation Expenses N. Amended Bodily Injury Definition -Mental Anguish 0. Airbag Coverage P. Amended Insured Contract Definition -Railroad Easement Q. Coverage Extensions -Audio, Visual And Data Electronic Equipment Not Designed Solely For The Production Of Sound R. Notice Of And Knowledge Of Occurrence S. Unintentional Errors Or Omissions T. Towing Coverage PPA 300 03 13 I I 1 l f ! 1 i t l l l 1 j 1 1. j i l l 1 I l I l I l l j I l i I l I l l \ , l I i i I l I I I l ( ~ 1 1 This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM A. Broad Form Named Insured The following is added to the SECTION II - COVERED AUTOS LIABILITY COVERAGE, Para - graph A .1. Who Is An Insured Provision : Any business entity newly acquired or formed by you during the policy period, provided you own fifty percent (50%) or more of the business entity and the business entity is not separately insured for Bus- iness Auto Coverage . Coverage is extended up to a maximum of one hundred eighty {180) days following the acquisition or formation of the business entity . This provision does not apply to any person or organization for which coverage is excluded by endorsement. B. Employees As Insureds The fol lowing is added to the SECTION II - COVERED AUTOS LIABILITY COVERAGE, Para - graph A.1. Who Is An Insured Provision : Any "employee " of yours is an "insured " while using a covered "auto" you don't own , hire or borrow in your business or your personal affairs . C. Blanket Additional Insured The following is added to the SECTION II - COVERED AUTOS LIABILITY COVERAGE, Para- graph A.1. Who Is An Insured Provision: Any person or organization that you are required to include as an additional insured on this coverage form in a contract or agreement that is executed by you before the "bodily injury" or "property damage " occurs is an "insured " for liability coverage, but on ly for damages to which this insurance applies and only to the extent that person or organization qualifies as an "insured " under the Who Is An Insured provis ion contained in SECTION II - COVERED AUTOS LIABILITY COVERAGE. The insurance provided to the additional insured will be on a primary and non -contributory basis to the additional insured 's own business auto coverage if you are required to do so in a contract or agreement that is executed by you before the "bodily injury " or "property damage " occurs. D. Blanket Waiver Of Subrogation The following is added t_o the SECTION IV -BUSI- NESS AUTO CONDITIONS , A. Loss Conditions, 5. Transfer Of Rights Of Recovery Against Others To Us : We waive any right of recovery we may have against any person or organ ization to the e xtent required of you by a contract executed prior to any "accident" or PPA30003 13 "loss", provided tha t the "accident" or "loss" arises out of the operat ions contemplated by such contract. The waiver applies only to the person or organization designated in such contract. E . Employee Hired Autos 1 . The following is added to the SECTION II - COVERED AUTOS LIABILITY COVERAGE, Paragraph A.1. Who Is An Insured Provision : 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 . 2. Changes In General Conditions: Paragraph 5.b. of the Other Insurance Con- dition in the BUSINESS AUTO CONDITIONS is deleted and replaced with the fo llowing : 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 (2) Any covered "auto " hired or rented by your "employee " under a contract in tha t individual "employee's" name , with your perm ission, 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 ". F. Fellow Employee Coverage SECTION II -COVERED AUTOS LIABILITY COVERAGE, Exclusion 8 .5. does not apply if you have workers compensation insurance in-force covering all of your employees . G. Auto Loan Lease Gap Coverage SECTION Ill -PHYSICAL DAMAGE COVERAGE, C. Limit Of Insurance, is amended by the addition of the following : In the event of a total "loss " to a covered "auto" shown in the Schedule of Declarations , we will pay any unpaid amount due o n the lease or loan for a covered "auto ", less : 1 . The amount paid under the PHYSICAL DAMAGE COVERAG E section of the policy ; and 2. Any : a . Overdue lease/loan payments at the time of the "loss "; I • I ! AGREEMENT BETWEEN THE CITY OF CUPERTINO AND COTTON SHIRES AND ASSOCIATES,INC.,FOR GEOTECHNICAL INSPECTION SUMMARY SERVICES FOR THE SUN PROPERTY THIS AGREEMENT, is entered into this 2nd day of July, 2015, by and between the CITY OF CUPERTINO, a California municipal corporation ("City"), and Cotton Shires and Associates, Inc., a California Corporation whose address is 330 Village Lane, Los Gatos, California 95030 (hereinafter referred to as "Consultant") (collectively referred to as the"Parties"). 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. 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 geotechnical- inspection summary services for the Sun property upon the terms and conditions herein. NOW,THEREFORE,the Parties mutually agree as follows: 1. TERM The term of this Agreement shall commence on July 2, 2015, and shall terminate on June 30,2017, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall perform each and every service set forth in Exhibit "A", which is attached hereto and incorporated herein by this reference. 3. COMPENSATION TO CONSULTANT Consultant shall be compensated for services performed pursuant to this Agreement in a total amount not to exceed TEN THOUSAND dollars ($10,000.00)based on the rates and terms set forth in Exhibit "A," which is attached hereto and incorporated herein by this reference. 4. TIME IS OF THE ESSENCE Consultant and City agree that time is of the essence regarding the performance of this Agreement. 5. STANDARD OF CARE Consultant agrees to perform all services required by this Agreement in a manner Page 1 of 10 Cotton Shires Contract - Sun Property, 7-2-15 commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 6. INDEPENDENT PARTIES City and Consultant intend that the relationship between them created by this . Agreement is that of employer-independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Consultant.Payments of the above items, if required, are the responsibility of Consultant. 7. IMMIGRATION REFORM AND CONTROL ACT(IRCA) Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 8. NON-DISCRIMINATION Consistent with City's policy prohibiting harassment and discrimination, Consultant agrees that it shall not harass or discriminate against 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, sexual orientation, or any other protected class. Consultant agrees that any and all violations of this provision shall constitute'a material breach of this Agreement. 9. HOLD HARMLESS Standard Indemnification: Consultant shall, to the fullest extent allowed by law and without limitation of the provisions of this Agreement related to insurance, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against,any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to the negligent 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 Page 2 of 10 Cotton Shires Contract - Sun Property, 7-2-15 other costs and fees of litigation. The acceptance of the Services by City shall not operate as a waiver of the right of indemnification. The provisions of this Section survive the completion of the Services or termination of this Contract. 10. INSURANCE: A. General Requirements. 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 the requirements listed in Exhibit"D". 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." 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. B. Subrogation Waiver. Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. C. Failure to secure or maintain insurance. If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. Additional Insured. City, its City Council, boards and commissions, officers, employees and volunteers shall be named as an additional insured under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. Sufficiency of Insurance. The insurance limits required by City are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. F. Maximum Coveraize and Limits. It shall be a requirement under this Page 3 of 10 Cotton Shires Contract - Sun Property, 7-2-15 Agreement that any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements and/or limits shall be available to the additional insured City. Furthermore, the requirements for coverage and limits shall be the minimum coverage and limits specified in this Agreement, or the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured,whichever is greater. 11. CONFLICT OF INTEREST Consultant warrants that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, that would conflict in any way with the performance of this Agreement, and that it will not employ any person having such an interest. Consultant agrees to advise City immediately if any conflict arises and understands that it 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. 12. 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. 13. SUBCONTRACTOR APPROVAL Unless prior written consent from City is obtained, only those people and subcontractors whose names and resumes are attached to this Agreement shall be used in the performance of this Agreement. In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of workers'compensation insurance and shall also be required to carry general, automobile and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. Consultant agrees to include with all subcontractors in their subcontract the same requirements and provisions of this Agreement including the indemnity and insurance requirements to the extent they apply to the scope of the subcontractor's work. Subcontractors hired by Consultant agree to be bound to Consultant and City in the same Page 4 of 10 Cotton Shires Contract - Sun Property, 7-2-15 manner and to the same extent as Consultant is bound to City under this Agreement. Subcontractor further agrees to include these same provisions with any sub- subcontractor. A copy of the Owner Contract Document Indemnity 'and Insurance provisions will be furnished to the subcontractor upon request. Consultant shall require all subcontractors to provide a valid certificate of insurance and the required endorsements included in the agreement prior to commencement of any work and will provide proof of compliance to City. 14. PERMITS AND LICENSES Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses including, but, not limited to, a City Business License, that may be required in connection with the performance of services hereunder. 15. REPORTS A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of City. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to City the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of City, and all publication rights are.reserved to City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. B. All Reports prepared by Consultant may be used by City in execution or implementation of. (1) The original Project for which Consultant was hired; (2) Completion of the original Project by others; (3) Subsequent additions to the original project; and/or(4)Other City projects as City deems appropriate. C. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be printed on recycled paper. All Reports shall be copied on both sides of the paper except for one original,which shall be single sided. E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. 16. 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, in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection, of all work, data, Page 5 of 10 Cotton Shires Contract - Sun Property, 7-2-15 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 Consultant receives final payment from City for all services required under this agreement. 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. 17. NONAPPROPRIATION This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code and Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are only appropriated for a portion of the fiscal year and funds for this Agreement are no longer available. This Section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Agreement. 18. ENVIRONMENTALLY PREFERABLE PURCHASING Consultant shall comply with the City's Environmentally Preferable Procurement Policy whenever practicable in completing any work.under this agreement, including but not limited to: Using paper products made with recycled content and recycled/remanufactured toner and inkjet cartridges; Printing with soy or low volatile organic compounds (VOC) inks; Using energy-star compliant equipment; Using cleansers and working with janitorial contractors to meet Green Seal's Industrial and Institutional Cleaners Standard; and Ordering supplies electronically and practicing other internal waste reduction and reuse protocols. 19. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail,postage prepaid,registered or certified, addressed as hereinafter provided. All notices, demands,requests, or approvals shall be addressed as follows: TO CITY: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Aarti Shrivastava Assistant City Manager Page 6 of 10 Cotton Shires Contract - Sun Property, 7-2-15 TO CONSULTANT: Cotton Shires and Associates, Inc. 330 Village Lane Los Gatos, CA 95030 Attn:John Wallace 20. TERMINATION In the event Consultant fails or refuses to perform any of the provisions hereof at the time and-in the manner required hereunder, Consultant shall be deemed in"default in the performance of this Agreement. If Consultant fails to cure the default within the time specified and according to the requirements set forth in City's written notice of default, and in addition to any other remedy available to the City by law, the City Manager may terminate the Agreement by giving Consultant written notice thereof, which shall be effective immediately. The City Manager shall also have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven(7) calendar days'prior written notice to Consultant as provided herein. Upon receipt of any notice of termination, Consultant shall immediately discontinue performance. City shall pay Consultant for services satisfactorily performed up to the effective date of termination. If the termination if for cause, City may deduct from such payment the amount of actual damage, if any, sustained by City due to Consultant's failure to perform its material obligations under this Agreement. Upon termination, Consultant shall immediately deliver to the City any and all copies of studies, sketches, drawings, computations, and other material or products, whether or not completed, prepared by Consultant or given to Consultant, in connection with this Agreement. Such materials shall become the property of City. 21. COMPLIANCE Consultant shall comply with all state or federal laws and all ordinances, rules, policies and regulations enacted or issued by.City. 22. CONFLICT OF LAW This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the Superior Court of the County of Santa Clara, State of California. 23. ADVERTISEMENT Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. Page 7 of 40 Cotton Shires Contract - Sun Property, 7-2-15 24. WAIVER A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 25. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties, 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. 26. AUTHORITY The individual(s) executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. 27. 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. 28. CAPTIONS AND TERMS 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.All unchecked boxes do not apply to this Agreement. IN WITNESS WHEREOF,the parties have caused the Agreement to be executed. CONSULTANT CITY OF CUPERTIN Cotton, Shires and Associates, Inc. A Municipal Corporation By By Title rts a TitYrre cave cc Date Zd t6a Date day M x ZOIS Up to$45,006-Designated Supervisor Approval Required RECOMMENDED FOR APPROVAL G ao,Asst.Director,CDD Page10 Cotton Shires Contract - Sun Property, 7-2-15 APPROVED As O RM: ATTEST: City Attorney City Clerk vk Exhibits: (Check box for exhibits that apply to this contract and attach) Exhibit"A"- Scope of Services, Schedule of Performance and Compensation Exhibit`B"- Schedule of Performance Exhibit"C"-Compensation Exhibit"D"-Insurance Requirements and Proof of Insurance Exhibit"E"-Mandated Reporting Acknowledgement Exhibit"F"-Background/Fingerprint/TB Declaration Exhibit"G"-Nondiscrimination- State/Federal/HUD funded project Exhibit"H"—Request for City Manager to Waive Informal Bidding Requirements EXPENDITURE DISTRIBUTION ACCOUNT NUMBER AMOUNT PO #2016-119 Account#:100-73-718 700-702 10,000.00 Total: 10,000.00 Page 9 of 10 Cotton Shires Contract - Sun Property, 7-2-15 Exhibit A COTTON, SHIRES AND ASSOCIATES, INC. CONSULTING ENGINEERS AND GEOLOGISTS July 2,2015 C5075 TO: Kaitie Groeneweg Planning Department CITY OF CUPERTINO 10300 Torre Avenue Cupertino,California 95014 SUBJECT: Geotechnical Inspection Summary and Scope of Work RE : Sun Property,Undocumented Grading 11801 Dorothy Ann Way At your request, we are providing you with a geotechnical summary of our recent inspection of the property at 11801 Dorothy Ann Way,in Cupertino California. We understand that recent undocumented grading was performed at the site. We have also prepared a scope of work that should be performed to remediate the observed undocumented grading at the property. SITE CONDITIONS 1. Driveway Entrance — We observed artificial fill, in an apparent non- engineered state, along the north side of the entrance drive. The fill extended . along the driveway for a distance of 190 feet, with an average width of 15 to 20 feet. The fill extended from the driveway to near the northern boundary fence where it appears to attain maximum depths of 2 to 2.5 feet. This fill soil was placed around multiple conifer trees near the boundary fence, and constrains concrete chunks and tree limbs. A straw_wattle has been placed along the toe of this fill to help reduce the amount of silt that makes its way into the adjacent concrete v-ditch. A parking area was recently created along the driveway and consists of an unreinforced concrete slab, approximately 3 inches thick, and measuring 50 feet long by 20 feet wide. This slab has large cracks along the southeastern portion of the slab. We estimate the total volume of this artificial fill to be approximately 100-150 cubic yards. Recommendations: We recommend that the artificial fill be removed from around the base of the trees in this area, be stripped of any tree .limbs, stumps, concrete blocks, or other deleterious materials, and replaced as landscape fill. The fill should have a slope angle of no .greater than 2:1 Northern California Office Central California Office Southern California Office 330 Village Lane 6417 Dogtown Road 550 St.Charles Drive,Suite 108 Los Gatos,CA 95030-7218 San Andreas,CA 95249-9640 Thousand Oaks,CA 93012-8074 408)354-5542•Fax(408)354-1852 209)736-4252•Fax(209)736-1212 805)497-7999•Fax(805)497-7933 www.cottonshires.com Kaitie Groeneweg July 2,2015 Page 2 C5075 horizontal to vertical), and should be covered with an erosion control blanket. We also recommend that the concrete parking slab be removed. Geotechnical Scope Geotechnical inspections should be performed during the reworking-of the fill and during fill replacement. This inspection would likely include 1 full day of inspection. Cost-$1,000 2. Barn Grading—A large volume fill was observed upslope from the barn and corral in the western portion of the property. This fill appears to have been recently placed and is near a line of trees that were recently removed. The artificial fill is non-engineered, primarily composed of vegetation clippings, soil and wood chips. This fill is approximately 90 feet long,40 feet wide, and up to approximately 6 feet thick. This fill has been placed on a slope that is inclined approximately 15-degrees, and has fill slopes that are much steeper than industry standard fill slopes.We estimate that approximately 350 to 500 cubic yards of fill/vegetation is in this area. Recommendations — We recommend that all of the recently placed fill be removed from the hillside, and the site restored to its pre-grading state. This fill removal should be inspected by the Project Geotechnical Consultant to assure that all material is removed from the site, and.original grade is restored. Geotechnical Scope—We anticipate the fill removal to take approximately 3 to 5 days, and geotechnical inspections should be performed during this _ grading operation. Cost-$5,000 3. Carriage House Retaining Wall—A 2-to 3-foot high masonry block retaining wall has recently be placed along the west and north sides of the Carriage House. The masonry block wall appears to have been placed in front of a pre-existing concrete wall. We did not observe evidence of distress to the older wall,or to the new wall. Recommendations — The Project Geotechnical Engineer should inspect this wall and provided recommendations,as deemed necessary. Geotechnical Scope — Retaining wall inspection and recommendations, as deemed necessary. Cost-$500 COTTON,SHIRES AND ASSOCIATES,INC. Kaitie Groeneweg July 2,2015 Page 3 C5075 4. Water Tank—We observed the water tank leaking along the east side. The leak is flowing onto older artificial fill that is settling. Recommendations—The Project Geotechnical Consultant should inspect the site and provide recommendations, as deemed appropriate, to help mitigate settlement and the potential for shallow landsliding resulting from uncontrolled leakage onto potentially unstable artificial fill. Geotechnical Scope — Site inspections and provide drainage recommendations. Cost-$1,500 5. Ranch Office (Atrium Structure) — An oversteepened fill slope is located along the western side of this structure,and appears to have buried some tree trunks. Recommendations — We recommend that the Project Geotechnical Consultant inspect this fill and provide recommendations to grade this slope to current industry standards, and remove and replace any non-engineered fill. Geotechnical Scope — Site inspection, provided grading recommendations, and observe remedial grading. Cost-$1,500 6. Culvert Near Carriage House—The culvert near the carriage house contains a moderate amount of debris near the intake above the driveway. Recommendations—The Project Geotechnical Consultant should inspect the drainage facilities in this area to assure they are in working order. Debris should be removed from the drainage channel to help reduce the likelihood of flow blockage. Geotechnical Scope — Site inspection' and provide recommendations, as deemed appropriate. Cost-$500 COTTON,SHIRES AND ASSOCIATES,INC. Kaitie Groeneweg July 2,2015 Page 4 C5075 LIMITATIONS This geotechnical site review has been performed to provide technical advice to assist the City with its discretionary permit decisions. Our services have been limited to a visual review of the_property. Our opinions and conclusions are made in accordance with generally accepted principles and practices of the geotechnical profession. This warranty is in lieu of all other warranties,either expressed or implied. Respectfully submitted, COTTON,SHIRES AND ASSOCIATES,INC. CITY GEOTECHNICAL CONSULTANT John M.Wallace Principal Engineering Geologist CEG 1923 Patrick O.Shires Principal Geotechnical Engineer GE 770 JMW:POS:st COTTON,SHIRES AND ASSOCIATES,INC. Contract No.2016-119 Exhibit D Insurance Requirements and Proof of Insurance Proof of insurance coverage described below is attached to this Exhibit,with City named as additional insured. Consultant shall maintain the following minimum insurance coverage: A. COVERAGE: 1) Workers' Compensation: Statutory coverage as required by the State of California. 2) Liabili Commercial general liability coverage in the following minimum limits: Bodily Injury: 500,000 each occurrence 1,000,000 aggregate-all other Property Damage: $100,000 each occurrence 250,000 aggregate If submitted,combined single limit policy with aggregate limits in the amounts of$1,000,000 will be considered equivalent to the required minimum limits shown above. 3) Automotive: Comprehensive automotive liability coverage in the following minimum limits: Bodily Injury: 500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Limit: $500,000 each occurrence 4) Professional Liability Professional liability insurance which includes coverage for the professional acts,errors and omissions of Consultant in the amount of at least$1,000,000. 10 Cupertino Standard Form Contract-updated 212015