16-024 David J. Powers & Associates for The Oaks Environmental 9212 Report ServicesFIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF
CUPERTINO AND DAVID J POWERS AND ASSOCIATES FOR THE OAKS
ENVIRONMENT AL 9212 REPORT SERVICES
This First Amendment to the Agreement between the City of Cupertino and David J
Powers and Associates , for reference dated April 5, 2016 , is by and between the CITY OF
CUPERTINO, a municipal corporation (hereinafter "City") and David J Powers and Associates a
California Corporation ("Consultant") whose address is 1871 The Alameda, Suite 200, San Jose ,
California 95126 , and is made with reference to the following:
RECITALS:
A. On March 7th , 2016 , an agreement was entered into by and between City and
Consultant (hereinafter "Agreement") for The Oaks Environmental 9212 Report Services.
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 3 of the Agreement is modified to read as follows:
Consultant shall be compensated for services performed pursuant to this Agreement in a total
amount not to exceed SIXTY EIGHT THOUSAND FIVE HUNDRED dollars ($68,500.00)
based on the rates and terms set forth in Exhibit A, which is attached hereto and incorporated
herein by this reference.
2. The following Exhibits to the Agreement, are amended and replaced to read as shown
in the attachments to this Amendment:
a. Exhibit A -Scope of Service
3 . 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.
CONSULTANT CITY OF CUPERTINO
RECOMMENDED FOR APPROVAL:
Af\PROVED AS TO FORM:
l~
City Attorney
ATTEST:
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
PO #2016-460
Original Contract: 100-71-702 700-702 $78,000.00
Amendment #1 -$9,500.00
Total: $68,500.00
~~rn ~AY ID /·~O WE R S
(§] ~ ~ ENVmONMI!NTtU. OONSULT.4.NTS l .PI.ANNW
April 14, 2016
Catarina Kidd, Senior Planner
Community Development Department
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Sent Via Email: catarinak@,cupe1iino.org
RE: Citizens Initiative to Revitalize the Oaks Shopping Center -Environmental 9212
Report Scope of Work (REVISED)
Dear Ms . Kidd,
Thank you for requesting David J. Powers & Associates, Inc. (DJP&A) provide a scope of work to
prepare environmental analysis and a report pursuant to State Election Code Section 9212 . The 9212
report, as directed by City Council, is to solely focus on the environmental effects of an initiative
petition by citizens of Cupertino for the existing Oaks Shopping Center. The Oaks Shopping Center
is an approximately eight-acre site located at the northwest comer of Stevens Creek Boulevard and
Mary A venue.
Based on our review of the Notice of Intent to Circulate Petition and City Council Staff Report, and
your conversation with Kristy Weis, it is our understanding that the initiative proposes amendments
to the City's General Plan, Heart of the City Specific Plan, and Zoning Ordinance to allow for the
future development of approximately 47,660 square feet of commercial uses, 270 residential units
(including 30 affordable units), 280,000 square feet of office uses, and a 200-room hotel on the Oaks
Shopping Center site. The Initiative also includes changes to the permitted and conditional General
Commercial uses and common open space requirements, as they apply to the Oaks Shopping Center
site.
This scope of work is to assist City Staff with preparing the environmentally focused 9212 report.
We will assist City Staff with analysis related to environmental issues typical in environmental
documents including the following:
• Aesthetics • Greenhouse gas • Noise
• Air quality • Hazards and hazardous • Public services
• Biological resources materials • Population and housing
• Cultural resources • Hydrology and water quality • Recreation
• Geology and soils • Land use • Transportation
• Mineral resources • Utilities and services
1871 The Alameda• Suite 200 •San Jose, CA 95126 •Tel: 40 8-248-3500 •Fax: 408-248-9641 • www.da vidjpowers.com
This scope of work assumes that the transportation analysis will be completed by F ehr & P eers per
their attached scope of work (see Attachment A) and discussion of consistency with City plans and
policies will be provided to DJP&A by City Staff.
The environmental analysis in the 9212 report will be high-level and primarily qualitative, and
based on existing available information including information in the certified General Plan
Amendment , Housing Element Update and Associated Rezoning Final EIR . Cursory quantitative
data (e.g., estimated number of project-generated vehicle trips, students, and residents) will be
included as appropriate. As discussed with Kristy, the analysis will be comparing the Initiative to
what is currently allowed on the site under the existing General Plan . No additional technical
anal yses besides what is to be completed by F ehr & P ee rs are proposed as part this scope.
We estimate we will be able to complete the report for $68,500 (DJP&A in-house budget: $50 ,500;
Fehr & Peers budget $18,000). All costs will be charged on a time and materials basis ,
commensurate w ith work completed, in accordance with the charge rates outlined on the following
page. Payment will be due on a monthly basis. IfDJP&A does not need all the time that has been
budgeted, we will only bill for the time actually spent completing the work.
If this proposal is acceptable to the City, it can be attached as a scope of work to the City's standard
consultant agreement. Please contact me or Kristy Weis ( 408-454-3428, kweis@ da vidjpowers .com)
if you have any questions about this proposal or need additional information.
Sincerely,
Judy Shanley
President
( 408) 454-3431
j shanley@ davidjpowers .com
2
18 71 The Alameda • Suite 200 •San Jo se, CA 9512 6 •Tel: 40 8-24 8-35 00 •Fax : 40 8-24 8-9641 • www.dav idjpow ers.co m
DAV ID J. POWE RS
CHARGE RATE SCHEDULE 1
Title Hourlv Rate
Senior Principal $ 255.00
Principal Project Manager $ 225.00
Senior Environmental Specialist $ 200.00
Senior Project Manager $ 180.00
Environmental Specialist $ 165.00
Project Manager $ 155.00
Associate Project Manager $ 140.00
Assistant Project Manager $1 15.00
Researcher $ 100.00
Draftsperson/Graphic Artist $ 90.00
Document Processor/Quality Control $ 90.00
Administrative Manager $ 90.00
Office Support $ 75.00
Materials, outside services and subconsultants include a 15% administration fee .
Mileage will be charged per the current IRS standard mileage rate at the time costs occur.
Subject to revision July 1, 20 17.
1 David J. Powers & Associates, Inc. provides regular, clear and accurate invoices as the work on this project
proceeds, in accordance with normal company billing procedures . The cost estimate prepared for this project does
not include special accounting or bookkeeping procedures , nor does it include preparation of extraordinary or unique
statements or invoices . If a special invoice or accounting process is requested , the service can be provided on a time
and materials basis. Any fees charged to DJP&A for Client's third -p arty services related to invoicing, insurance
certificate maintenance, or other administrative functions wi ll be billed as a reimbursable expense .
3
1871 The Alameda• Suite 200 • San Jose, CA 95 126 • Tel: 408-248-3500 • Fax: 408-248-9641 • www.davidjpowers.com
Attachment A: Fehr & Peers Scope of Work
4
1871 The Alameda • Suite 200 • San Jose, CA 95126 • Tel: 408-248-3500 • Fax: 408-248-9641 • www.davidjpowers.com
February 19, 2016
Pi u Ghosh
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
FEHR f PEERS
Subject: Proposal to Conduct a Qualitative Transportation Impact Evaluation for the
Oaks Shopping Center Development in Cupertino, California
Dear Piu:
Fehr & Peers is pleased to submit this proposal to conduct a qual itative transportation impact
evaluation to respond the Citizen's Initiative to Revitalize the Oaks Shopping Center in Cupertino,
California . The Oaks Shopping Center is located across the street from De Anza Community
College and the site is bounded by SR-85 to the w est, Mary Avenue to the north and east, and
Stevens Creek Boulevard to the south. To evaluate the petition's potential transportation impacts
we will:
• Develop vehicle trip generation estimates for the proposed development using
Institute of Transportat i on Eng ineers (!TE) trip generation data and MainStreet. Fehr &
Peers ' MainStreet tool (asap .fehrandpeers .com/mainstreet), uti lizes the MXD+ platform,
which has been acknowledged by VTA as an appropriate tool to quantify trip generation
of m ix ed-use developments. These estimates will be compared to estimates prepared for
the site for the City of Cupertino's Community Vision 2040 General Plan (December 2014)
EIR. The amount of net-new traffic will be determined .
• Distribute and assign net-new vehicle trips to the surrounding roadway network. The
directions of approach and departure will be estimated based on the locations of
complementary land uses , exist i ng travel patterns in the area , and prev i ous studies
conducted in the area .
• Evaluate the petition's potential transportation impacts. Potential impacts will be
evaluated at up to eight intersections. The net-new trips will be added to the forecasts
used for the year 2040 level of service (LOS) results presented in the City of Cupertino 's
Community Vision 2040 General Plan (December 2014). Intersection LSO calculations will
be conducted to estimate the change in projected intersection operations.
• Assess potential neighborhood traffic and parking intrusion. The petition has the
potential to add traffic and overflow park ing to the residential streets in th e
160 W. Santa Clara Street I Suite 675 I San Jose, CA 95113 I (408) 278-1700 I Fax (408) 278 -1717
www .fehrandpeers.com
Piu Ghosh
February 19, 2016
Page 2 of 2
neighborhood to the north of the site. The amount of project traffic potentially added to
these areas and measures to reduce it will be addressed.
• Document findings. We will document out findings from the tasks outlined above in a
technical memorandum to be incorporated into the City's 9212 Report.
The fee for the scope of work outlined above is $18,000, and includes all professional and support
staff time, as well as direct expenses . Invoices will be submitted monthly and are due upon
receipt. We estimate that we can complete the memorandum within six weeks after our receipt of
a fully executed contract and detailed land use summary of the existing, General Plan allowed,
and proposed land uses from the City.
Should you have any questions, please call Franziska at (408) 645-7014. Otherwise, please provide
us with a contract. The terms of this proposal are valid for a period of 30 days . We appreciate the
opportunity to submit this proposal and look forward to working with you on this project.
Sincerely,
FEHR & PEERS
Franziska Church, AICP
Associate
P16-3060-SJ
J~~--
Ue A. Bierstedt, P.E.
Principal
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND DAVID J
POWERS FOR THE OAKS ENVIRONMENTAL 9212 REPORT SERVICES
THIS AGREEMENT, is entered into this 7th day of March, 2016, by and between
the CITY OF CUPERTINO, a California municipal corporation ("City"), and David J
Powers, a California Corporation whose address is 1871 The Alameda, Suite 200, San
Jose, California, 95126, (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 The Oaks
environmental 9212 report services upon the terms and conditions herein.
NOW, THEREFORE, the Parties mutually agree as follows:
1. TERM
The term of this Agreement shall commence on March 7th, 2016, and shall
terminate on December 31, 2016, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall perform each and every service set forth in Exhibit "A", 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 SEVENTY EIGHT THOUSAND dollars
($78,000.00) 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
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
Page 1of10
M-Group Oaks 9212, 3-3-16
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 CIRCA)
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
IZl 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
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.
Page 2 oflO
M-Group Oaks 9212, 3-3-16
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 Coverage and Limits. It shall be a requirement under this
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
Page 3of10
M-Group Oaks 9212, 3-3-16
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. SUBCONTRACTORAPPROVAL
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
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
Page4 oflO
M-Group Oaks 9212, 3-3-16
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,
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 fmal 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
Page 5 oflO
M-Group Oaks 9212, 3-3-16
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
TO CONSULTANT:
David J Powers
1871 The Alameda, Suite 200
San Jose, CA 95126
Attention: Judy Shanley, President
Page 6 oflO
M-Group Oaks 9212, 3-3-16
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.
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
Page 7 oflO
M-Group Oaks 9212, 3-3-16
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 CUPERTINO
David J Powers it-AS.l'ol .:>~
By ~~w·~·{)
Title Frh / DJ lt-1:
Date '3/ a.f 1~ Date ----"'---'"',,<------+-'---=~~~ D Over $175, 00-Council Approval Required
~ Over $45,000-Department Head Approval Required
D Up to $45,000-Designated Supervisor Approval Required
APP Rf VEDAS TO FORM: rrJJfJ)jJA/'-_ RECOMMENDED FOR APPROVAL
~~
Catarina Kidd, Senior Planner
ATTEST: fuCts:;LJt 3----r l{ ·-t1o
City Clerk
Page 8 oflO
M-Group Oaks 9212, 3-3-16
Exhibits: (Check box for exhibits that apply to this contract and attach)
IZI Exhibit "A" -Scope of Services
D Exhibit "B"-Schedule of Performance
D Exhibit "C" -Compensation
IZI Exhibit "D" -Insurance Requirements and Proof of Insurance
D Exhibit "E" -Mandated Reporting Acknowledgement
D Exhibit "F" -Background/Fingerprint/TB Declaration
D Exhibit "G"-Nondiscrimination-State/Federal/HUD funded project
D Exhibit "H" -Request for City Manager to Waive Informal Bidding Requirements
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
PO 2016-460
Account #100-71-702 700-702
Original Contract $78,000.00
Total: $78,000.00
9
Exhibit A lmE DAVID J. POWERS
BfE~
February 19, 2016
Catarina Kidd, Senior Planner
Community Development Department
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Sent Via Email: catarinak@cupertino.org
RE: Citizens Initiative to Revitalize the Oaks Shopping Center -Environmental 9212
Report Scope of Work
Dear Ms. Kidd,
Thank you for requesting David J. Powers & Associates, Inc. (DJP&A) provide a scope of work to
prepare environmental analysis and a report pursuant to State Election Code Section 9212. ·The 9212
report, as directed by City Council, is to solely focus on the environmental effects of an initiative
petition by citizens of Cupertino for the existing Oaks Shopping Center. The Oaks Shopping Center
is an approximately eight-acre site located at the northwest comer of Stevens Creek Boulevard and
Mary Avenue.
Based on our review of the Notice of intent to Circulate Petition and City Council Staff Report, and
your conversation with Kristy Weis, it is our understanding that the initiative proposes amendments
to the City's General Plan, Heart of the City Specific Plan, and Zoning Ordinance to allow for the
future development of approximately 47,660 square feet of commercial uses, 270 residential units
(including 30 affordable units), 280,000 square feet of office uses, and a 200-room hotel on the Oaks
Shopping Center site. The Initiative also includes changes to the permitted and conditional General
Commercial uses and common open space requirements, as they apply to the Oaks Shopping Center
site.
This scope of work is to assist City Staff with preparing the environmentally focused 9212 report.
We will assist City Staff with analysis related to environmental issues typical in environmental
documents including the following:
• Aesthetics • Greenhouse gas • Noise • Air quality • Hazards and hazardous • Public services • Biological resources materials • Population and housing • Cultural resources • Hydrology and water quality • Recreation • Geology and soils • Land use • Transportation • Mineral resources • Utilities and services
1871 The Alameda• Suite 200 • San Jose, CA 95126 •Tel: 408-248-3500 •Fax: 408-248-9641 • www.davidjpowers.com
This scope of work assumes that the transportation analysis will be completed by Fehr & Peers per
their attached scope of work (see Attachment A) and discussion of consistency with City plans and
policies will be provided to DJP&A by City Staff.
The environmental analysis in the 9212 report will be high-level and primarily qualitative, and
based on existing available information including information in the certified General Plan
Amendment, Housing Element Update and Associated Rezoning Final EIR. Cursory quantitative
data (e.g., estimated number of project-generated vehicle trips, students, and residents) will be
included as appropriate. As discussed with Kristy, the analysis will be comparing the Initiative to
what is currently allowed on the site under the existing General Plan. No additional technical
analyses besides what is to be completed by Fehr & Peers are proposed as part this scope.
We estimate we will be able to complete the report for $78,000 (DJP&A in-house budget: $60,000;
Fehr & Peers budget $18,000). All costs will be charged on a time and materials basis,
commensurate with work completed, in accordance with the charge rates outlined on the following
page. Payment will be due on a monthly basis. lfDJP&A does not need all the time that has been
budgeted, we will only bill for the time actually spent completing the work.
If this proposal is acceptable to the City, it can be attached as a scope of work to the City's standard
consultant agreement. Please contact me or Kristy Weis (408-454-3428, kweis@davidjpowers.com)
if you have any questions about this proposal or need additional information.
Sincerely,
Judy Shanley
President
( 408) 454-3431
jshanley@davidjpowers.com
2
1871 The Alameda• Suite 200 •San Jose, CA 95126 •Tel: 408-248-3500 •Fax: 408-248-9641 • www.davidjpowers.com
==E DAVID J. POWERS
El~~
CHARGE RATE SCHEDULE 1
Hourly Rate
Senior Principal $ 255.00
Principal Project Manager $ 225.00
Senior Environmental Specialist $ 200.00
Senior Project Manager $ 180.00
Environmental Specialist $ 165.00
Project Manager $ 155.00
Associate Project Manager $ 140.00
Assistant Project Manager $ 115.00
Researcher $ 100.00
Draftsperson/Graphic Artist $ 90.00
Document Processor/Quality Control $ 90.00
Administrative Manager $ 90.00
Office Support $ 75.00
Materials, outside services and subconsultants include a 15% administration fee.
Mileage will be charged per the current IRS standard mileage rate at the time costs occur.
Subject to revision July 1, 2017.
1 David J. Powers & Associates, Inc. provides regular, clear and accurate invoices as the work on this project
proceeds, in accordance with normal company billing procedures. The cost estimate prepared for this project does
not include special accounting or bookkeeping procedures, nor does it include preparation of extraordinary or unique
statements or invoices. If a special invoice or accounting process is requested, the service can be provided on a time
and materials basis. Any fees charged to DJP&A for Client's third-party services related to invoicing, insurance
certificate maintenance, or other administrative functions will be billed as a reimbursable expense.
3
1871 The Alameda• Suite 200 •San Jose, CA 95126 •Tel: 408-248-3500 •Fax: 408-248-9641 • www.davidjpowers.com
February 19, 2016
Piu Ghosh
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
. f EHRf PEERS
·Subject: Proposal to Conduct a Qualitative Transportation Impact Evaluation for the
Oaks Shopping Center Development in Cupertino, California
Dear Piu:
Fehr & Peers is pleased to submit this proposal to conduct a qualitative transportation impact
evaluation to respond the Citizen's Initiative to Revitalize the Oaks Shopping Center in Cupertino,
California. The Oaks Shopping Center is located across the street from De Anza Community
College and the site is bounded by SR-85 to the west, Mary Avenue to the north and east, and
Stevens Creek Boulevard to the south. To evaluate the petition's potential transportation impacts
we will:
• Develop vehicle trip generation estimates for the proposed development using
Institute of Transportation Engineers (ITE) trip generation data and MainStreet. Fehr &
Peers' MainStreet tool (asap.fehrandpeers.com/mainstreet), utilizes the MXD+ platform,
which has been acknowledged by VTA as an appropriate tool to quantify trip generation
of mixed-use developments. These estimates will be compared to estimates prepared for
the site for the City of Cupertino's Community Vision 2040 General Plan (December 2014)
EIR. The amount of net-new traffic will be determined.
• Distribute and assign net-new vehicle trips to the surrounding roadway network. The
directions of approach and departure will be estimated based on the locations of
complementary land uses, existing travel patterns in the area, and previous studies
conducted in the area.
• Evaluate the petition's potential transportation impacts. Potential impacts will be
evaluated at up to eight intersections. The net-new trips will be added to the forecasts
used for the year 2040 level of service (LOS) results presented in the City of Cupertino's
Community Vision 2040 General Plan (December 2014). Intersection LSO calculations will
be conducted to estimate the change in projected intersection operations.
• Assess potential neighborhood traffic and parking intrusion. The petition has the
potential to add traffic and overflow parking to the residential streets in the
160 W. Santa Clara Street I Suite 675 I San Jose, CA 95113 / (408) 278-1700 I Fax (408) 278-1717
www.fehrandpeers.com
Piu Ghosh
February 19, 2016
Page 2 of 2
neighborhood to the north of the site. The amount of project traffic potentially added to
these areas and measures to reduce it will be addressed.
• Document findings. We will document out findings from the tasks outlined above in a
technical memorandum to be incorporated into the City's 9212 Report.
The fee for the scope of work outlined above is $18,000, and includes all professional and support
staff time, as well as direct expenses. Invoices will be submitted monthly and are due upon
receipt. We estimate that we can complete the memorandum within six weeks after our receipt of
a fully executed contract and detailed land use summary of the existing, General Plan allowed,
and proposed land uses from the City.
Should you have any questions, please call Franziska at (408) 645-7014. Otherwise, please provide
us with a contract. The terms of this proposal are valid for a period of 30 days. We appreciate the
opportunity to submit this proposal and look forward to working with you on this project.
Sincerely,
FEHR & PEERS
Franziska Church, AICP
Associate
P16-3060-SJ
Principal
ExhibitD
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) 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:
(4)
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
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.
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