15-169 HMH Engineers, Inc. for consultant services for Lindy Ln Storm Drain Improvements DesignAGREEMENT BETWEEN THE CITY OF CUPERTINO AND HMH ENGINEERS INC. FOR
CONSULTANT SERVICES FOR LINDY LANE STORM DRAIN IMPROVEMENTS DESIGN
THIS AGREEMENT, for reference dated 'l / ~ 2015, is by and between CITY OF
CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and HMH Engineers, Inc., a
(California corporation) whose address is 1570 Oakland Road, San Jose, CA 95131
(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 preparation of topographic
survey and storm drain improvement design drawings for proposed improvements on Lindy Lane, upon
the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. TERM:
The term of this Agreement shall commence on the date this agreement is executed and shall
terminate on December 31, 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.
3. SCHEDULE OF PERFORMANCE:
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
Sixteen Thousand two Hundred Dollars ($16,200). The rate of payment is set out in Exhibit C, titled
"Charge Rate Schedule", which is attached hereto and incorporated herein.
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City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
Consultant shall furnish to City a detailed statement of the work performed for compensation during the
term of this Agreement. Consultant may submit monthly invoices for interim progress payments during
the course of each phase, clearly stating as a minimum the total Contract amount, amount paid to date,
percent complete and amount due.
5. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the performance of this
Agreement.
6. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner commensurate with the
prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall
be performed by qualified and experienced personnel who are not employed by the City nor have any
contractual relationship with City.
7. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by this Agreement is that
of employer-independent contractor. The manner and means of conducting the work are under the
control of Consultant, except to the extent they are limited by statute, rule or regulation and the express
terms of this Agreement. No civil service status or other right of employment will be acquired by virtue
of Consultant's services. None of the benefits provided by City to its employees, including but not
limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are available
from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal
taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-
employee relationship from any fees due Consultant. Payments of the above items, if required, are the
responsibility of Consultant.
8. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity and employment
authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or
other federal, or state rules and regulations. Consultant shall indemnify and hold City harmless from
and against any loss, damage, liability, costs or expenses arising from any noncompliance of this
provision by Consultant.
9. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are unacceptable
employer/employee conduct, Consultant agrees that harassment or discrimination directed toward a job
applicant, a City employee, or a citizen by Consultant or Consultant's employee or subcontractor on the
basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status,
pregnancy, sex, age, or sexual orientation will not be tolerated. Consultant agrees that any and all
violations of this provision shall constitute a material breach of this Agreement.
10. PROJECT COORDINATION
CITY: Director of Public Works shall be representative of City for all purposes under this
Agreement. Chad Mosley. is hereby designated as the Director of Public Works' designee and Project
Manager, and shall supervise the progress and execution of this Agreement.
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City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
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 Joseph
Streeper.
11. HOLD HARMLESS:
A. Indemnity Obligations Subject to Civil Code Section 2782.8.
1. Where the law establishes a standard of care for Consultant's professional
services, and to the extent the Consultant breaches or fails to meet such established standard of
care, or is alleged to have breached or failed to meet such standard of care, Consultant shall, to
the fullest extent allowed by law, with respect to all services performed in connection with the
Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents,
employees and volunteers from and against any and all liability, claims, actions, causes of action
or demands whatsoever against any of them, including any injury to or death of any person or
damage to property or other liability of any nature, that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of Consultant or Consultant's employees, officers,
officials, agents or independent contractors. Such costs and expenses shall include reasonable
attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation.
Consultant shall not be obligated under this Agreement to indemnify City to the extent that the
damage is caused by the sole or active negligence or willful misconduct of City, its agents or
employees.
2. Notwithstanding the foregoing, the Consultant has no duty to provide or
to pay for an up-front defense against unproven claims or allegations, but shall pay or reimburse
the City for its reasonable attorneys' fees of counsel of City's choice, expert fees and all other
costs and fees of litigation to the extent caused by the negligence, recklessness, or willful
misconduct of Consultant or its employees, officers, officials, agents or independent contractors.
However, the Consultant shall provide its immediate and active cooperation and assistance to the
City, at no additional cost to the City, in analyzing, defending, and resolving such claims.
B. Claims for Other Liability. For all liabilities other than those included within
paragraph A. above, Consultant shall, to the fullest extent allowed by law, indemnify, defend,
and hold harmless the City and its officers, officials, agents, employees and volunteers against
any and all liability, claims, actions, causes of action or demands whatsoever from and against
any of them, including any injury to or death of any person or damage to property or other
liability of any nature, that arise out of, pertain to, or relate to the 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. Consultant shall not be obligated under this
Agreement to indemnify City to the extent that the damage is caused by the sole or active
negligence or willful misconduct of City, its agents or employees.
C. Claims involving intellectual property. In addition to the obligations set forth in (A)
and (B) above, Consultant shall indemnify, defend, and hold the City, its elected and appointed
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City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
officers, employees, and volunteers, harmless from and against any Claim in which a violation of
intellectual property rights, including but not limited to copyright or patent rights, is alleged that
arises out of, pertains to, or relates to Consultant's negligence, recklessness or willful misconduct
under this Agreement. Such costs and expenses shall include reasonable attorneys' fees of
counsel of City's choice, expert fees and all other costs and fees of litigation.
12. INSURANCE:
On or before the commencement of the term of this Agreement, Consultant shall furnish City
with certificates showing the type, amount, effective dates and dates of expiration of insurance coverage
in compliance with paragraph 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 before the expiration date thereof, the insurer affording
coverage shall provide thirty (30) days' advance written notice to the City of Cupertino, 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 authorized to do insurance business in the State of California.
Endorsements naming the City as additional insured in relation to the commercial general liability and
commercial automobile liability policies shall be submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $500,000
each occurrence
$1,000,000
aggregate -all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate limits in the amounts
of $1,000,000 will be considered equivalent to the required minimum limits
shown above.
(3) Automotive:
Commercial 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 accident
(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 per claim
and in the aggregate.
B. SUBROGATION WAIVER:
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City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to
provide commercial 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 commercial
general and automotive liability insurance to either Consultant or City with respect to the services of
Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may
acquire against City by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Consultant at any time during the term hereof should fail to secure or maintain the foregoing
insurance, City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the
Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the
maximum rate permitted by law and computed from the date written notice is received that the
premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees and volunteers shall be
named as an additional insured under all insurance coverages, except any worker's compensation and
professional liability insurance, required by this Agreement. An additional insured named herein shall
not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy
or any extension thereof. Any other insurance held by an additional insured shall not be required to
contribute anything toward any loss or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient to protect
Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate
coverage for Consultant.
13. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to perform the services
required by this Agreement. Consultant may be required to fill out a conflict of interest form if the
services provided under this Agreement require Consultant to make certain governmental decisions or
serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of
Regulations.
14. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest
therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City.
Any attempt to do so without said consent shall be null and void, and any assignee, sublessee,
hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment,
hypothecation or transfer. However, claims for money by 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.
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City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
In the event that Consultant employs subcontractors, such subcontractors shall be required to
furnish proof of workers' compensation insurance and shall also be required to carry general, automobile
and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In
addition, any work or services subcontracted hereunder shall be subject to each provision of this
Agreement.
16. PERMITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement,
all appropriate permits, certificates and licenses including, but not limited to, a City Business License, that
may be required in connection with the performance of services hereunder.
17. OWNERSHIP OF WORK:
A. Any interest (including copyright interests) of Consultant and its subconsultants in each
and every study, document, report, draft, memoranda, work product, map, record, plan, drawing,
specification and other deliverable, in any medium prepared or created by Consultant or its
subconsultants pursuant to or in connection with this Agreement, shall be the exclusive property of City.
To the extent permitted by Title 17 of U.S. Code, all work product prepared or created under this
Agreement shall be deemed works for hire and all copyrights in such works shall be the property of City.
In the event that it is ever determined that any works prepared or created by Consultant or any
subconsultant under this Agreement are not works for hire under U.S. law, Consultant hereby assigns to
City all copyrights to such works when and as created. With Owner's prior written approval, Consultant
may retain and use copies of such works for reference and as documentation of its experience and
capabilities and in its promotional materials. With respect to Consultant's standard details, Consultant
may retain the copyright, but grants to City a perpetual non-exclusive license to use such details in
connection with the Project.
B. Without limiting any other City right to any of the works prepared or created by
Consultant or its subconsultants, all works 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. Any City reuse of works shall be subject to California Business and Professions Code
Sections 5536.25, 6735, 6735.3 or 6735.4, if and to the extent applicable. Any City reuse of works for any
purpose other than those in B(l) through B(3) above, and any modifications to any of the works, shall be
at City's sole risk and expense.
D. Consultant shall, at such time and in such form as City may require, furnish reports
concerning the status of services required under this Agreement.
E. All written work required to be provided by this Agreement (other than large-scale
architectural plans and similar items) shall be printed on recycled paper and shall be copied on both sides
of the paper except for one original, which shall be single sided.
F. No work, information or other data given to or prepared created or assembled by
Consultant or any of its subconsultants pursuant to this Agreement, shall be made available to any
individual or organization by Consultant or any subconsultant without prior approval by City.
G. Electronic and hard copies of Consultant's work product shall constitute the Project
deliverables. Plans shall be in CAD and PDF formats, and other documents shall be in Microsoft Word
and PDF formats.
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City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
18. RECORDS:
Consultant shall maintain complete and accurate records with respect to sales, costs, expenses,
receipts and other such information required by City that relate to the performance of services under this
Agreement.
Consultant shall maintain adequate records of services provided in sufficient detail to permit an
evaluation of services. All such records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free
access to such books and records to the representatives of City or its designees at all proper times, and
gives City the right to examine and audit same, and to make transcripts there from 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. 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: Chad Mosley
All notices, demands, requests, or approvals from City to Consultant shall be addressed to
Consultant at:
20. TERMINATION:
In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in
the manner required hereunder, Consultant shall be deemed in default in the performance of this
Agreement. If such default is not cured within the time specified after receipt by Consultant from City of
written notice of default, specifying the nature of such default and the steps necessary to cure such
default, City may terminate the Agreement forthwith by giving to the Consultant written notice thereof.
City shall have the option, at its sole discretion and without cause, of terminating this Agreement
by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this
Agreement, each party shall pay to the other party that portion of compensation specified in this
Agreement that is earned and unpaid prior to the effective date of termination.
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City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
In the event of termination, Consultant shall deliver to City, copies of all reports, documents, and
other work performed by Consultant under this Agreement.
21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules and regulations
enacted or issued by City.
22. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of California
excepting any choice of law rules which may direct the application of laws of another jurisdiction. The
Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the
authorities having jurisdiction over this Agreement (or the successors of those authorities.)
Any suits brought pursuant to this Agreement shall be filed with the courts of the County of
Santa Clara, State of California.
23. ADVERTISEMENT:
Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs,
advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed
under this Agreement unless prior written approval has been secured from City to do otherwise.
24. WAIVER:
A waiver by City of any breach of any term, covenant, or condition contained herein shall not be
deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition
contained herein, whether of the same or a different character.
25. 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.
26. GIFTS:
A. Consultant is familiar with City's prohibition against the acceptance of any gift
by a City officer or designated employee, which prohibition is found in City
Administrative Procedures.
B. Consultant agrees not to offer any City officer or designated employee any gift
prohibited by the Administrative Procedures.
C. The offer or giving of any prohibited 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.
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City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
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:
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.
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City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
ADDENDUM O~~i& Wi~
TO AGREEMENT BETWEEN HMH ENGINEERS, INC. 1-+MH Pre~~
AND THE CITY OF CUPERTINO
DATED SEPTEMBER 9. 2015
29. COMPLIANCES:
Contractor shall comply with all state or federal laws and all ordinances, rules and
regulations enacted or issued by City.
A. PREVAILING WAGES: To the extent applicable, Contractor shall
comply with the City's Labor Compliance Program and all other requirements set forth
in Labor Code section 1770 et seq. Contractor shall pay prevailing wages. Contractor
will submit monthly certified payroll records to the City for all employees and
subcontractors in a preapproved format or a City provided form. Any delay in
remitting certified payroll reports to the City upon request from the City will result in
either delay and/or forfeit of outstanding payment to Contractor.
B. WORKING DAY: To the extent applicable, Contractor shall comply
with California Labor Code Section 1810, et seq. which provides that work performed
by employees of contractors in excess of 8 hours per day, and 40 hours during any one
week, must be compensated as overtime, at not less than 1 1/2 times the basic rate of pay.
C. PAYROLL RECORDS: To the extent applicable, Contractor shall
comply with California Labor Code Section 1776 which requires certified payroll
records be maintained with the name, address, social security number, work
classification, straight time and overtime hours worked each day and week, and the
actual per diem wages paid to each journeyman, apprentice, worker, or other employee
employed by him or her in connection with this Agreement. The Payroll Records shall
be made available for inspection as provided in California Labor Code Section 1776.
D. APPRENTICES: To the extent applicable, Contractor shall comply with California
Labor Code Section 1777.5 regarding apprentices.
P.O. No.: '~l)/ b ·-S \ s-
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CONSULTANT
HMH Engineers, Inc.
Title
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Date~q_{f{i~tb_
Tax I.D. No.:q.f .. "-32-l?f Z.7
CITY OF CUPERTINO
A Municipal Corporation
~-~
ByC::::-~
Timm Borden, Director of Public Works
Date°( j 21 / .1-5-
l a (c.( J ~J APPROVED AS TO FORM:
Address: _ '5°10 ~ a~ r-c:J () l
'5o ... q-~ CA 'ffit~I ~
~ ..J~ Korade, City Attorney
~v ATTEST:
~~Jl:J-1ol"1frr
Grace Schmidt, City Clerk
Contract Amount: $16,200
Account No.: 100-82-804 700-702
Page 10 oflO
City of Cupertino
HMH Engineers Inc. Agreement
For Lindy Lane Storm Drain Improvements
EXHIBIT A
SCOPE OF SERVICES
CONSUL TANT shall perform professional services as detailed in the following sections related
to the design, bidding and construction for Storm Drain Improvements located on Lindy Lane,
near 21943 Lindy Lane, Cupertino.
SECTIONl. GENERAL
A. General PROJECT Description: The PROJECT involves design development,
construction document preparation, bid support, and construction administration
services for storm drain improvements. The storm drain improvements include
drainage inlets constructed on the North side of Lindy Lane, and the connection
of the inlets to the existing public storm drain system (and as more specifically
described in the Scope of Services provided in Exhibit D). The amount available for
construction of the PROJECT, including contingencies for design, bidding, price
escalations and construction management consultant services, but excluding
compensation to CONSULTANT, is approximately ($55,000) FIFTY FIVE THOUSAND
DOLLARS ("CONSTRUCTION BUDGET").
B. General Performance Requirements:
1. The performance of all services by CONSULTANT shall be to the satisfaction of
the CITY, in accordance with the express terms hereof, including but not limited
to the terms set out in detail in this scope of services and the standard of care
provisions contained in this AGREEMENT.
2. The CITY's Department of Public Works shall manage the PROJECT and this
AGREEMENT. CONSULTANT shall receive final direction from the CITY's
Director of Public Works or his/her authorized designee (hereinafter collectively
"CITY") only. The CITY shall resolve any conflicting direction from other
groups, departments or agencies.
3. CONSUL TANT shall coordinate this scope of services with the CITY as well as
with other CITY consultants and contractors, as needed or as directed by the
CITY. CONSULTANT shall schedule meeting and prepare meeting agendas and
minutes for all PROJECT meetings during the design phase under the scope of
work. All minutes of meetings are due to the CITY within five (5) working days
after the meeting. CONSULTANT shall provide copies of such documentation to
the CITY, and as directed by the CITY, to other appropriate agencies and entities.
CONSULTANT shall coordinate all responses to comments through the CITY.
4. CONSULTANT shall designate and provide to the CITY the names of their team
members for the PROJECT. The team members shall be satisfactory to the CITY.
HMH Engineers Inc
Lindy Lane Storm Drain Improvements
Exhibits
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CONSULTANT shall not substitute any team members without the prior approval
of the CITY.
5. CONSULTANT's services shall be performed as expeditiously as is consistent
with professional skill and care and the orderly process of the work. The
schedule for the performance included in EXHIBIT B, may be adjusted by mutual
agreement.
6. CONSULTANT shall manage its SUBCONSULTANTS, and administer the
PROJECT. CONSULTANT shall consult with the CITY, research applicable
design criteria, and communicate with members of the PROJECT team.
7. When the CITY determines that the PROJECT requirements have been
sufficiently identified, CONSULTANT shall prepare and update a PROJECT
schedule for the CITY at the beginning of each TASK as defined in SECTION 2 -
"TASK" of this EXHIBIT A. The PROJECT schedule shall identify milestone
dates for decisions required of the CITY, design services furnished by
CONSULTANT and CONSULTANT's SUBCONSULTANTS, dates of reviews
and approvals required by all governmental agencies that have jurisdiction over
the PROJECT, deliverables to be furnished by CONSULTANT, completion of
documentation provided by CONSULTANT, commencement of construction
and substantial completion of the construction of the PROJECT, and as identified
in the exhibits under this AGREEMENT.
8. CONSULTANT shall submit construction documents to the CITY, according to
SECTION 2-"TASKS", of this EXHIBIT A for purposes of evaluation and
approval by the CITY. The CITY including the Department of Public Works
Engineering will review the documents during each phase. CONSULTANT will
meet with the CITY for progress review at various stages of the PROJECT.
CONSULTANT will be responsible for causing the appropriate
SUBCONSULTANT(S) to attend any meetings included in this SCOPE OF
SERVICES. CONSULTANT shall make revisions to the construction documents
as required for each task in a timely manner.
9. CONSULTANT shall assist the CITY, as requested by the CITY, in connection
with the CITY' s responsibility for filing documents required for the approval of
governmental authorities having jurisdiction over the PROJECT, including
submitting to the CITY' s Building Department for a building permit if required.
C. Estimate of Probable Construction Cost: CONSULTANT shall be responsible to design
the PROJECT and provide an Estimate of Probable Construction Cost consistent with the
following procedures and requirements.
1. CONSULTANT shall be responsible for designing the PROJECT so that the
Estimate of Probable Construction Cost is less than or equal to the
CONSTRUCTION BUDGET established by the CITY for the PROJECT. The Project
Construction Budget shall be provided by the CONSUL TANT as a summary sheet
with submittal of each required Estimate of Probable Construction Cost, showing
HMH Engineers Inc
Lindy Lane Storm Drain Improvements
Exhibits
Page2of10
comparisons of cost evolution for the PROJECT. As the design process progresses
CONSULTANT shall update and refine the Estimate of Probable Construction
Cost as required in SECTION 2 -"SCOPE OF SERVICES" of this EXHIBIT A.
CONSULTANT shall advise the CITY in writing of any adjustments to previous
Estimates of Probable Construction Cost indicated by changes in PROJECT
requirements or general market conditions.
2. Should the Estimate of Probable Construction Cost exceed the CONSTRUCTION
BUDGET, CONSULTANT shall, during the design phases of the project, revise,
without additional cost to the CITY, the design documents and/or Construction
Documents incorporating scope and quality changes to reduce the estimated
costs for construction, to within the CONSTRUCTION BUDGET.
CONSULTANT shall make changes only as approved by the CITY in writing.
Reductions in scope may be required to meet the CITY' s budget, and the CITY
will not unreasonably withhold permission for such reductions in scope order
for the CONSULTANTS to meet the budget. Notwithstanding the foregoing, to
the extent the Estimate of Probable Construction Cost exceeds the
CONSTRUCTION BUDGET due to any program, design or budget changes,
initiated and authorized by the CITY which are beyond CONSULTANT's
control, any changes required in the design documents, shall be considered as
Additional Services as noted in EXHIBIT C of this AGREEMENT.
3. In preparing the Estimate of Probable Construction Cost, CONSULTANT, in
consultation with the CITY, shall do each of the following: (a) include
contingencies for design, bidding, and price escalations to determine which
materials, equipment, component systems and type of construction are to be
included in the PROJECT, and (b) make reasonable adjustments and/or to value
engineer various items in all required submittal cost estimates of the PROJECT,
including alternate bids, in order to adjust the estimated construction cost to be
less than or equal to the CONSTRUCTION BUDGET.
4. If bidding has not commenced within 90 days after CONSULTANT submits the
Construction Documents to the CITY, CONSULTANT shall adjust the Estimate
of Probable Construction Cost to reflect changes in the general level of prices in
the construction industry. This will be an additional service.
5. CONSULTANT shall identify, develop and incorporate into the Construction
Documents /1 Add or Deduct Alternate" construction cost elements that may be
chosen to meet the City's budget. Alternates shall be approved by the CITY
before being incorporated into the Construction Documents.
6. Should the lowest responsive bid exceed the CONSTRUCTION BUDGET by
more than fifteen percent (15%), CONSULTANT shall, if directed by the CITY,
submit without additional cost to the CITY, revised Construction Documents
reflecting changes, approved by the CITY, to reduce the Construction Costs to
within the CONSTRUCTION BUDGET. The CITY acknowledges that the
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Lindy Lane Storm Drain Improvements
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SECTION2.
CONSUL TANT does not control market conditions and agrees that they may
allow reductions in scope in order to meet the CITY' s construction budget.
TASKS
TASK #1: Design Development
This task shall include the following items:
• Kickoff meeting with CITY (1 meeting)
• Review of background information and previous plans for improvements
• Perform site visit
• Prepare topographic survey of the area.
• Prepare first submittal of plans including cover sheet with notes and
specifications; details sheet site improvement plan; BMP sheet (CITY supplied);
Estimate of Probable Construction Cost. Plan set shall be on 22" x 34" for full
size and 11" x 17" scalable at 50%. Submittal shall be in a pdf format for the
plans and specifications.
• Meet with CITY to discuss proposed improvements (1 meeting as needed)
TASK #2: CONSTRUCTION DOCUMENTS:
This task shall include the following items:
• Meet with CITY to discuss first review comments (1 meeting as needed)
• Prepare final construction documents based on further design development and first
review comments. Provide CITY with a full size stamped and signed set of plans, also
provide in a pdf and AutoCAD format electronic copies.
• Prepare final estimate of probable construction cost, provide in MS Excel and pdf
electronic format.
TASK# 3: BID PERIOD AND CONSTRUCTION ADMINISTRATION SERVICES:
This task shall include the following items:
• Respond to bidder's question by assisting CITY with Addendum issuing.(1 budgeted)
• Review Shop Drawings and Material Submittals (2 budgeted)
• Respond to RFI's (1 budgeted)
• Assist in Change Order review and preparation (1 budgeted)
• Attend job site meeting (1 budgeted)
• Prepare Record Drawing from Contractor As-built mark up.
ADDITIONAL SERVICES
Consultant Services beyond the work in these tasks may be provided by CONSULTANT as
Additional Services only if such Additional Services are authorized in writing by the CITY
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HMH Engineers Inc
Lindy Lane Storm Drain Improvements
Exhibits
in advance. An Additional services amount of TWO THOUSAND SEVEN HUNDRED
DOLLARS ($ 2,700.00) is made a part of this agreement. Additional services may be paid
for as a negotiated maximum not to exceed amount or by a time and materials cost
accounting with a maximum not to exceed.
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EXHIBITB
SCHEDULE OF PERFORMANCE
CONSULTANT shall complete all work by September 15, 2015.
The following sets forth the distribution of CONSULTANT's Schedule of Performance for each
project. The CITY may approve in writing the extension of any milestone date set in this
Exhibit.
Task #1: Design Development
Task#2 Construction Documents
Task #3: Bid Period and Construction Administration Services
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HMH Engineers Inc
Lindy Lane Storm Drain Improvements
Exhibits
8 days after
Notice to
Proceed (NTP)
for this phase
10 days after
Notice to
Proceed (NTP)
for this phase
6 weeks after
Notice to
Proceed (NTP)
for this phase
A. Maximum Compensation.
EXHIBITC
COMPENSATION
The CITY agrees to compensate CONSULTANT for professional services performed in
accordance with the terms and conditions of this AGREEMENT. The maximum amount of
compensation to be paid to CONSUL TANT under this AGREEMENT, including both payment
for professional services, additional services and reimbursable expenses, shall not exceed
SIXTEEN THOUSAND TWO HUNDRED DOLLARS($ 16,200). CONSULTANT agrees that it
shall perform all of the services set forth in Exhibit A of this AGREEMENT, except for
additional services required pursuant to Section 2, TASKS and inclusive of reimbursable
expenses, for the maximum not to exceed amount of THIRTEEN THOUSAND FIVE
HUNDRED SEVENTY DOLLARS ($ 13,500). The maximum amount of Additional Services are
authorized under Section G of this EXHIBIT C is TWO THOUSAND SEVEN HUNDRED
DOLLARS ($ 2,700).
B. Method of Payment
For Task Nos. 1through3 CONSULTANT shall, during the term of this AGREEMENT, invoice
the CITY monthly based upon a percentage of completion of each milestone set forth below in
the Payment Schedule (Schedule D below) for services performed, and reimbursable expenses
incurred if applicable, in completing that milestone under this AGREEMENT. (Hereinafter
"Invoice.") Provided CONSULTANT has completed the services and incurred the reimbursable
expenses covered by the Invoice in accordance with the provisions of this AGREEMENT, as
determined by the CITY, the CITY shall pay CONSULTANT the amount shown on the Invoice
within thirty (30) working days of receipt of the Invoice.
The Invoice shall be based on the percentage of milestone completed, and it shall describe the
topics and tasks completed during the Invoice period in accordance with the Budget Schedule
and Payment Schedule set forth below. The Invoice shall list work completed and reimbursable
expenses if applicable, in accordance with the Budget Schedule and Payment Schedule set forth
below. CONSULTANT also shall include supporting documents for any reimbursable
expenses. The Invoice shall also show the total to be paid for the Invoice period.
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C. Budget Schedule
The Budget Schedule for this AGREEMENT shall be as follows:
Task #1:
Task #2:
Task #3:
Task Description
Design Development
Construction Documents
Bid Period and Construction Administration Services
Additional Services
TOTAL
Task
Compensation
$ 7,600
$ 5,300
$ 600
$ 2,700
$16,200
CONSULTANT shall not exceed any of the specified budget amounts for any Task without prior
written authorization from the CITY. The CITY may approve in writing the transfer of budget
amounts between any of the Tasks listed above provided the total AGREEMENT amount does
not exceed SIXTEEN THOUSAND TWO HUNDRED DOLLARS ($ 16,200).
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D. Payment Schedule
The Payment Schedule for this AGREEMENT shall be as follows:
TASK MILESTONE
Task #1 -Design Development
Prepare Topographic Survey
Prepare First Submittal of Plans and Estimate
Task #2 -Construction Documents
Prepare Final Drawings and Estimate
Task #3 -Bid Period and Construction Administration Services
Construction completion
Completion of Record Drawings
Additional Services
Paid Pursuant to Subsection C
below
E. Subconsultant Services.
PERCENT OF TASK
COMPENSATION PAID
UPON COMPLETION OF
MILESTONE
30%
70%
100%
80%
20%
CONSULTANT is directly responsible for any payment for SUBCONSULTANT work on this
PROJECT. SUBCONSULTANT work on this PROJECT is included in the Budget Schedule
shown above and shall be billed to the CITY by CONSULTANT as part of the Basic Services.
F. Reimbursable expenses.
Reimbursable expenses are included in CONSULTANT's lump sum compensation, including,
but not limited to, any expenses related to CONSULTANT's internal plan checks, CAD test
prints, 8 1/2" x 11" copies or fax copies. Plotting and Printing for public distribution will be the
responsibility of the CITY. There are no separate reimbursable expenses for Basic Services
performed under Tasks 1-3 of EXHIBIT A.
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G. Additional Services.
CONSULTANT shall not perform Additional Services without prior written authorization of
the CITY. Additional Services shall be separately negotiated to be paid on a lump sum or a time
and material basis at the rates set forth herein, as authorized by the CITY. The CITY has set
aside the sum of TWO THOUSAND SEVEN HUNDRED DOLLARS($ 2,700.) for the payment
of Additional Services. The CITY shall not authorize and CONSULTANT shall not perform any
Additional Services that result in charges in excess of the above amount.
CONSULTANT shall submit an Invoice to the CITY for payment on a monthly basis for
authorized Additional Services rendered during the previous month. In the event Additional
Services are authorized, CONSULTANT shall submit Invoices in accordance with the
CONSULTANT hourly rate schedule attached to this EXHIBIT C. The rates shown in the
EXHIBIT C-1 sHall stay in effect during the full term of the contract. The CITY shall pay
Additional Services Invoices as provided in this EXHIBIT C.
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EXHIBIT C-1
CHARGE RATE SCHEDULE
Professional & Office
Civil Engineering or Land Surveying Manager
Senior Civil Engineering or Land Surveying Manager
Land Development Manager
Senior Planner
Senior Civil Engineer, Land Surveyor, or Landscape Architect
Design Specialist
Project Planner
Project Civil Engineer, Land Surveyor, or Landscape Architect
Project Arborist
Engineer, Planner, Surveyor, or Landscape Designer
Assistant Engineer, Surveyor, Planner, or Landscape Designer
Junior Engineer, Surveyor, Planner, or Landscape Designer
Senior Technician
Project Technician
Technician
Assistant Technician
Junior Technician
Project Support Staff
2-Man Field Crew
3-Man Field Crew
1-Man Field Crew
Senior Field Engineer
Field Services
Principals are Charged at $200.00 to $340.00 per hour
Printing, Reproductions & Materials at Cost, Plus 20%
Transportation at Cost, including mileage based upon IRS rates
Other Outside Services at Cost, Plus 20%
Rates are subject to adjustment July 1, 2016.
Client Initials Consultant Initials
$ 172 per hour
$ 192 per hour
$ 168-240 per hr
$ 194 per hour
$ 156 per hour
$ 148-180 per hr
$174 per hour
$146 per hour
$ 136 per hour
$138 per hour
$126 per hour
$116 per hour
$130 per hour
$120 per hour
$112 per hour
$102 per hour
$ 86 per hour
$ 84 per hour
$ 236 per hour
$ 310 per hour
$ 164 per hour
$ 156 per hour
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Job No. 4737.00
Date 812712015
Page 1 of 4
PROJECT DESCRIPTION
Client: City of Cupertino
IFOR REFERENCE ONL y I
EXHIBIT "D"
Project Name Lindy Lane Storm Drain APN(s) I n/a
Project Address 21862 Lindy Lane City I Cupertino
Client Initials Consultant Initials
Description Prepare plans to install two new catch basins on the north side of Lindy Lane,
and connect them to the existing storm drain system.
SCOPE Of SERVICES
220 Topographic Field Survey
Perform field topographic surveys to obtain locations of utility surface facilities, and inverts
of accessible storm drain manholes, inlets and sanitary sewer manholes. Obtain locations
and sizes of significant trees and other existing features that may affect the design. Obtain
existing pavement elevations at points of conform and other spot elevations needed for
design.
430 Design -Plans and Estimate
Obtain and review available data and information pertinent to the project from the City,
County, utilities, and other agencies. Such information may include the following:
• Aerial photos, topographic base sheets, master plans or record drawings of City and
County facilities.
• Record drawings of existing utility systems obtained from PG&E, AT&T, local water
companies, cable TV and other utility service providers.
Develop plans to establish fundamental elements of the design. The proposed plans for
this project include:
• Title/Index Sheet with Standard Notes (1 sheet)
• Standard Details (1 sheet, with images of City Standards)
• Drainage Plan (1 sheet)
The City of Cupertino will have the opportunity to thoroughly review the details of the
project and provide comments to HMH. Upon receipt of comments, the plans will be
revised one time for final submission to the City.
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Job No. 4737.00
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Client Initials Consultant Initials
Prepare an estimate of probable construction cost based on items and quantities of work
shown on the plans and other anticipated. improvements. Prices will be based on the
magnitude of the quantities, our experience with similar local projects and engineer's
judgment.
Post Design Services
Make available project staff to answer questions during the bidding and construction.
Assist City in preparation of addenda to the bid documents or design revisions to meet field
conditions. Addenda to include changes beyond the control of HMH will be considered as
extra services.
BURIED UTILITIES
Client authorizes Consultant and/or his subconsultants to conduct research of existing
utility facilities necessary to prepare plans indicating the locations intended for underground
improvements. Such services by the Consultant or his subconsultant will be performed in a
manner consistent with the ordinary standard of care. The Client recognizes that the
research may not identify all existing underground improvements and that the information
upon which the Consultant relies may contain errors or may not be complete.
DUTIES OF CLIENT
The following activities are the responsibility of Client. This is not intended to represent a
complete list but is included for additional clarity.
• Provide copies of available plans, exhibits, records and data pertinent to the project.
• Provide Consultant with permission to enter the grounds as necessary to perform
the services.
• Pay the cost of all fees, permits, and other charges not specifically included in this
Agreement as a Consultant responsibility.
• Provide construction supervision, inspection, administration, and coordination.
• Obtain off-site easements and right-of-way as required to complete the project.
SPECIAL PROVISIONS
This Agreement does not constitute any express or implied warranty that the jurisdictional
agencies will approve the applications.
Consultant may utilize computer aided design and drafting software and other applications
of Consultant's choice in providing the services in this Agreement. File structure and
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Job No. 4737.00
Date 8/27/2015
Page 3of4
Client Initials
organization of data shall be at Consultant's discretion, and are intended only for
Consultant's use on the project.
Consultant Initials
The following services may be required for successful completion of the project, but are
specifically not included in this scope of services. Consultant may provide some of these
services pursuant to the "Changes in Services" section of this agreement, or Client may
engage others to provide these services. This is not intended to represent a complete list,
but is added only for clarity.
• Environmental Impact Reports, Special Studies and Reports (Noise, Traffic, Biotic,
etc.) or Phase I or Phase II analysis.
• Uncovering or potholing existing underground facilities.
• Record of Survey maps.
• Structural, mechanical, electrical, or geotechnical engineering, including plans or
calculations for structural excavations and sheeting or shoring.
• Subsurface water drainage (subdrains), dewatering facilities and pumping stations
and force mains for storm drainage and sanitary sewer.
• Electrical, telephone, gas, or cable T.V. facilities including joint trenches.
• Profile views of the street or drainage facilities.
• Surface models.
• Storm drain hydrologic or hydraulic calculations.
• Special details not shown on Standard Plans
CHANGES IN SERVICES
Client may request changes in scope of or character of service, either decreasing or
increasing the amount of Consultant's services.
In the event that additional services not included in the Scope of Services are required, or if
the Client requests changes and revisions after Consultant has performed the services in
the Scope of Services, Client agrees to pay for all such additional services and expenses
incurred, on a charge rate basis in accordance with Consultant's Charge Rate Schedule.
COMPENSATION
For providing the services included in the Scope of Services, Client shall compensate
Consultant as follows:
Services performed on a Charge Rate (CR) basis as designated below shall be invoiced
based upon the actual hours expended by each employee classification for the services
performed on the project multiplied by the hourly charge rate for that employee
classification as shown on the Charge Rate Schedule in effect at the time the services are
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Job No. 4737.00
Date 8/27/2015
Page 4of4
Client Initials Consultant Initials
performed. An initial, estimated budget has been established for each Charge Rate task;
Consultant will request authorization if additional budget is required to complete charge rate
tasks.
Professional Service Fees are as follows:
Description
220 Topographic Field Survey
430 Design -Plans and Estimate
Post Design Services
TOTAL (not to exceed):
$ 2300 CR
10,600 CR
600 CR
$13,500
Billings will be made every month for the services performed within the preceding month
and are payable upon receipt.
Reimbursable Expenses
Client shall reimburse Consultant for reimbursable expenses excluded from the Basic
Services at cost plus twenty percent (20%) for processing. Such reimbursable expenses
may include: reproduction of plans and documents, overnight mail, delivery and courier
services.
APPROVED and ACCEPTED
Client: Consultant: HMH
Printed Name Printed Name
Title Title
Date Date
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