16-041 CSDA Design Group, Noise Analysis ServicesSECOND AMENDMENT TO AGREEMENT BETWEEN THE CITY OF
CUPERTINO AND CSDA DESIGN GROUP FOR NOISE ANALYSIS SERVICES
This Second Amendment to the Agreement between the City of Cupertino and CSDA
Design Group , for reference dated December 21 , 2016 , is by and between the CITY OF
CUPERTINO , a municipal corporation (hereinafter "City") and CSDA Design Group a
California Corporation ("Consultant") whose address is 475 Sansome Street, Suite 800 , San
Francisco , California 94111 , and is made with reference to the following:
RECITALS:
A. On April 18, 2016, an agreement was entered into by and between City and
Consultant (hereinafter "Agreement") for noise analysis services for Lehigh Cement Plant Noise
Study. The Agreement and the First Amendment are collectively refen-ed to as the "Agreement"
unless otherwise indicated.
B . City and Consultant desire to modify the Agreement on the te1ms and conditions
set forth herein.
NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as
follows:
1. Paragraph 1 of the Agreement is modified to read as follows:
The term of this Agreement shall commence on April 18 , 2016 , and shall terminate on
June 30, 2017 , unless terminated earlier as set forth herein.
2. Except as expressl y 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 pmiies hereto have caused this modification of
Agreement to be executed.
CONSULTANT CITY OF CUPERTINO
City Attorney
ATTEST:
~Ji
City Clerk / d._ < M -n'.?
EXPENDITURE DISTRIBUTION
ACC OUNT NUMBER AMOUNT
PO #2016-540
Original Contract: $15,000.00
Amendment #1 $0 .00
Total: $.00
FIRST AME.NDlVIENT TO AGREEMENT BETWEEN THE CITY OF
CUPERTINO AND CSDA DESIGN GROUP FOR NOISE ANALYSIS SERVICES
This First Amendment to the Agreement between the City of Cupertino and CSDA
Design Group, for reference dated July 27, 2016, is by and between the CITY OF CUPERTINO,
a municipal corporation (hereinafter "City") and CSDA Design Group a California Corporation
("Consultant") whose address is 475 Sansome Street, Suite 800, San Francisco, California
94111 , and is made with reference to the following:
RECITALS:
A. On April 18, 2016, an agreement was entered into by and between City and
Consultant (hereinafter "Agreement") for noise analysis services for Lehigh Cement Plant Noise
Study. The Agreement and the First Amendment are collectively referred to as the "Agreement"
unless otherwise indicated.
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 1 of the Agreement is modified to read as follows:
The term of this Agreement shall c01mnence on April 18, 2016, and shall te1minate on
December 31, 2016, unless terminated earlier as set forth herein.
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 Services and Associated Fee
b. Exhibit "B" -Project Schedule
3. Except as expressly modified herein, all other te1ms 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
APPROVED AS TO FORM:
ATTEST:
~,2.Lp
CityClerk 7 ..,-Lf~/b
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
PO #2016-540
Original Contract: $15,000 .00
Amendment Ill $0.00
To tal: $.00
Exhibit A -Scope of Services and Associated Fee
Scope Item -Phase 1 Fee
1. Review the previous noise study conducted by the County/Lehigh. $250
2. Assist the City in creating noise logs for nearby residents to $450
complete. The purpose of the logs is for residents to characterize
and note when the cement plant noise is audible, the character of
the noise, and the duration of the noise . Review the logs from the
residents. We expect the residents would keep a log of cement plant
noise for two to three weeks, and the City will distribute and collect
the logs.
3. Discuss the log notes with the residents as necessary; present a $600
summary of the log findings to the City.
4. Prepare a measurement work plan for the City indicating the $600
planned noise measurement locations, measurement times, and
equipment to be used.
5. Conduct noise measurements at designated residential receivers $2,500
near the site. This may include in-person measurements and/or
coordination for the installation of semi-permanent sound level
monitoring stations which may be conducted over the course of
several weeks. In-person measurements will likely be two to four
homs in dmation at determined locations along the cement plant
perimeter a11d in the community.
6. Analyze the measurement data. $1,500
7. Prepare a report summarizing om findings, a comparison of our $1,000
findings to the County's noise ordinance, and recommendation of
sound level reduction sh·ategies as needed.
Phase 1 Total $6,900
Phase 2 would be as directed by the City. TBD
Exhibit B -Project Schedule
Task Start Date Duration End
Date
1 . Review the previous noise study conducted by 4/11/16 2 days 4/12/16
the County/Lehigh.
2. Assist the City in creating noise logs for nearby 4/11/16 3 days 4/13/16
residents to complete.
3. Distribute and residents complete noise logs . 5/5/16 20 days 6/3/16
4. Discuss the log notes with the residents as 6/6/16 5 days 6/10/16
necessary; present a summary of the log findings
to the City.
5. Prepare a measurement plan for the City 6/13/16 62 days 8/15/16
indicating the planned noise measurement
locations, measurement times, and equipment to
be used.
6. Conduct noise measurements at the dete1mined 8/16/16 42 days 9/30/16
residential receivers (exact dates TBD).
7. Analyze the measurement data. 10/3/16 5 days 10/7/16
8. Prepare a report summarizing om findings and 10/10/16 5 days 10/14/16
compare our findings to the County's noise
ordinance.
L_O\~-5Lf 0
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND
CSDA DESIGN GROUP FOR
NOISE ANALYSIS SERVICES
THIS AGREEMENT, is entered into this 18th day of April, 2016, by and between
the CITY OF CUPERTINO, a California municipal corporation ("City"), and CSDA
Design Group, a California Corporation whose address is 475 Sansome Street, Suite 800,
San Francisco, CA 94111 (hereinafter referred to as "Consultant") (collectively referred
to as the "Parties"), 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 noise analysis
services for the Lehigh Cement Plant Noise Study upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
1. TERM:
The tenn of this Agreement shall commence on April 18th, 2016, and shall
terminate on July 31, 2016, unless tenninated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A" entitled
"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 Fifteen thousand Dollars ($15,000.00). The rate of payment is set out in
Exhibit C, titled "Compensation", which is attached hereto and incorporated herein.
Consultant shall furnish to City a detailed statement of the work performed for
compensation during the te1m of this Agreement. Consultant may submit monthly
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Consultant contract-updated 2/2015
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. ST AND ARD OF CARE
Consultant agrees to perform all services required by this Agreement in a manner
commensurate with the prevailing standards of specially-trained 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 an 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, sexual
orientation will not be tolerated. Consultant agrees that any and all violations of this
provision shall constitute a material breach of this Agreement.
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Consultant contract -updated 2/2015
10. PROJECT COORDINATION
CITY: Director of Public Works shall be representative of City for all purposes
under this Agreement. , is hereby designated as
the Director of Public Works' designee and Project Manager, and shall superv ise the
progress and execution of this Agreement.
CONSUL TANT: 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
~~~~~~~~
11. HOLD HARMLESS:
A. Indemnity Obligations Subject to Civil Code Section 2782 .8.
1. Where the law establishes a standard of care for Consu ltant '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, pe11ain 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 Consu ltant 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 Jaw ,
indemnify, defend , and hold harmless the City and its officers, officials, agents ,
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Consultant contract-updated 2/2015
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, pet1ain 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 officers , employees, and volunteers , harmless from
and against any Claim in which a violation of intellectual propet1y rights ,
including but not limited to copyright or patent rights , is alleged that arises out of,
pe11ains 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 ce11ificate 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:
Consultan t contract-updated 2/2015
$500 ,000
each occurrence
$1 ,000 ,000
Page 4 of 15
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 occmTence
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:
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
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Consulta nt contract-updated 2/2015
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
ce1iain 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, sub lessee, 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 paiinership or joint venture
or syndicate or cotenancy, which shall result in changing the control of Consultant, shall
be construed a s an assignment of this Agreement. Control means fifty percent (50%) or
more of the voting power of the corporation.
15 . 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.
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. OWNERSHIPOFWORK
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
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Consultant contract-uodated 2/2015
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 detai ls, Consu lt ant 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 (1) 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. E lectronic and hard copies of Consultant 's work product shall constitute
the Project deliverables. Plans shall be in CAD and PDF fonnats , and other documents
shall be in Microsoft Word and PDF formats .
18. RECORDS
Consultant shall maintain complete and accurate records with respect to sa les,
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 serv ices 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 design ees at all proper times, and g ives City the right to
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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. 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.
20. 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.
21. 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: Erin Cooke
Consultant contract-updated 2/2015
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All notices, demands , requests , or approvals from City to Consultant shall be
addressed to Consultant at:
CONSULTANT:
Randy Waldeck, PE, LEED AP I Principal , Acoustics
CSDA Design Group
475 Sansome Street, Suite 800
San Francisco , CA 94111
22. 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
po1iion of compensation specified in this Agreement that is earned and unpaid prior to the
effective date of termination.
In the event of termination, Consultant shall deliver to City, copies of all repotis ,
documents, and other work performed by Consultant under this Agreement.
23. COMPLIANCE
Consultant shall comply with all · state or federal laws and all ordinances, rules ,
policies and regulations enacted or issued by City.
24. 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 Cal ifomia.
25. ADVERTISEMENT
Consultant shall not post, exhibit, display or allow to be posted , . exhibited,
displayed any signs, advetiising, show bills , lithographs , posters or cards of any kind
petiaining to the services performed under this Agreement unless prior written approval
has been secured from City to do otherwise.
26. WAIVER
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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 contain ed herein, whether of the same or a different
character.
27. INTEGRATED CONTRACT
Th is Agreement represents the full and complete und erstanding 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
wi ll be effective only by written execution signed by both City and Consultant.
28. 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. Consu lt ant agrees not to offer any City officer or designated emp loyee a n y
gift prohibited by the Admin istrative Procedures.
C. T h e offer or giving of any prohibited gift shall constitute a material breach
of this Agreement by Consu ltant. In add ition to any other remedies , City may have in
law or equity, City may terminate this Agreement for such breach as provided in Section
20 of this Agreement.
29 . AUTHORITY
The individual(s) executin g this Agreement represent and warrant that they have
the legal capacity and authority to do so on behalf of their respective legal entities.
30. INSERTED PROVISIONS
Each provision and clause required b y 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 othe1wise, any such provision is not
inse1ted or is not correctly inserted , the Agreement shall be amended to make such
inse1tion on app lication by eith er patty.
31. CAPTIONS
The caption s in this Agreement are for convenience only , are not a pa1t of the
Agreement and in no way affect, limit or amplify the terms or provisions of this
Agreement. A ll unchecked boxes d o not app ly to this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed .
CONSULTANT
Name of Co ns ultant
Consultant contract-updated 2/2015
Pogo!Oofl~~
D Up to $45,000 -Designated Supervisor Approval Required
NDED FOR APPROVAL
CITY OF CUPERTINO
ATTEST:
By
Tit! e -~.-!-J.'--~-.L!,--=---t,.>.v::._
Date
~~ f'orC'ity Clerk
D Over$ 17 5,0 0-Coun c il A pprova l Required
D Over $45 ,000 -De partment Head Approval Requ ired
Exhibits: (Check box for exhibits th at ap p ly to thi s contract and attac h)
~Ex hibit "A" -Scope of Services
~Ex hibit "B"-Schedule of Performance
'fill' Exhibit "C"-Co mpen sation
Page 11 of 15
Consultant contract-updated 2/2015
Contract No. __ _
Exhibit A
Scope of Services
Consultant shall provide noise analysis services as requested by City for the Lehigh Cement
Plant Noise Study in Cupe11ino , (the "Project"), including an analysis of resident's complaints ,
on-site acoustical measurements at the nearby residences and at the perimeter of the cement
plant, data analysis, and a report summarizing our findings (i.e. Phase One). Additional services
such as computer noise modeling, design of mitigation measures , additional measurements will
be as directed b y the City.Staff assigned to the Project by Consultant shall be preapproved by the
City of Cupertino Chief Building Official , and shall be removed immediately upon City's request
and replaced with an approved substitute. Consultant shall provide additional services outside of
the services identified in Exhibit A only by advance written authorization from the City 's Project
Manager prior to commencement of any additiona l services. Consultant shall submit, at the
Project Manager 's request, a detailed written proposal including a description of the scope of
additional services, schedule, and proposed maximum compensation.
Scope Item -Phase 1 Fee
I. Review the previous noise study conducted by the County/Lehigh . $250
2. Assist the City in creating noise logs for nearby residents to complete. The $450
purpose of the logs is for residents to characterize and note when the cement
plant noise is audible, the character of the noise , and the duration of the
noise. Review the logs from the residents. We expect the residents would
keep a log of cement plant noise for two to three weeks , and the City will
distribute and collect the logs.
3. Discuss the log notes with the residents as necessary; present a summary of $600
the log findings to the City .
4. Prepare a measurement plan to the City indicating the planned noise $600
measurement locations , measurement times, and equipment to be used.
5. Conduct noise measurements at the closest residential receivers to the site $2 ,500
and at the perimeter of the cement plant. We would conduct measurements at
the noisiest time (as determined by the residents ' noise logs). The
measurements will likely be two to four hours in duration. We expect to
measure at two locations along the cement plant perimeter and two locations
in the community.
6. Analyze the measurement data. $1 ,500
7. Prepare a report summarizing our findings and compare our findings to the $1 ,000
County's noise ordinance.
Phase 1 Total $6,900
Phase 2 would be as directed by the City. TBD
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Cupert ino Standard Fonn Contract -updated 2120 15
Contract No . ---
Exhibit B
Sched ule of Performance
Task Start Date Duration End Date
I. Review the previous noise study conducted by the 4/11/16 2 days 4/12116
County/Lehigh.
2 . Assist the City in creating noise logs for nearby 4/11/16 3 days 4/13116
residents to complete.
3. Distribute and res idents complete noise logs. 4/14/16 20 days 5/3/16
4. Discuss the log notes with the resiqents as necessary; 5/4/16 5 days 5/10/16
present a s ummary of the log findings to the City.
5. Prepare a measurement plan for the City indicating the 5/4/16 5 days 5/10/16
p lanned noise measurement locations , measurement
times, and equipment to be used .
6. Conduct noise measurements at the closest residential 5/11 /16 7 days 5/18/16
receivers to the site and at the perimeter of the cement
plant (one night of measurements , exact date TBD).
7. Analyze the measurement data. 5/19116 3 days 5/23116
8. Prepare a report summarizing our findings and 5/23 /16 5 days 5127116
compare our findings to the County 's noise ordinance.
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Cupcnino Stnndard Form Contract·updated 2/20 15
Contract No. ---
Exhibit C
Compensation
City shall compensate Consultant for professional services in accordance with the terms and
conditions of this Agreement based on the rates and compensation schedule set forth below.
Compensation shall be calculated based on the hourly rates set forth below up to the not to
exceed budget amount set forth below.
The compensation to be paid to Consultant under this Agreement for all services described in
Exhibit "A" and reimbursable expenses shall not exceed a total of fifteen thousand dollars
($15,000), as set forth below. Any work performed or expenses incurred for which payment
would result in a total exceeding the maximum amount of compensation set forth herein shall be
at no cost to the City.
Task
Phase 1: complaint analysis,
measurements, report:
Estimate 40 hours
Phase 2: as directed by the City
Not to Exceed Amount:
Rates
Staff Member
Principal
Acoustics Director
Senior Acoustician
Acoustician
Technician
CAD Drafter
Administrative Assistant
Hourly Rates
$245
$190
$145
$110
$95
$90
$90
Amount
$6,900
$8,100
$15,000
Travel expenses for site visits, measurements, and meetings for the Lehigh Cement Plant Noise
Study will be charged at cost. CSDA estimates that reimbursable expenses will be $300 or less.
Invoices
IZJ Monthly Invoicing: In order to request payment, Consultant shall submit monthly invoices to
the CITY describing the services performed and the applicable charges (including a summary of
work performed during that period, personnel who performed the services, hours worked , task(s)
for which work was performed).
D Invoicing based on percentage of work complete: (select Public Works contracts only)
On the first day of each month , Consultant shall submit a written estimate of the total amount of
work done the previous month . Payment shall be made for 90% of the value of the work. The
City shall r~tain 10% of the value of the work as partial security for the completion of the work
by Consultant. Retained amounts shall be paid to Consultant within C li ck here to e nt e r text. days
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Cupertino Stnndard Form Contrn ct-updntcd 2/20 15
Contract No. __ _
of acceptance b y the City of the project. Payment shall n ot be construed as acceptance of
defective work. No interest w ill be paid to Consultant on retained funds.
D Other billing:
Reimbursable Expenses
Administrative, overhead , secretarial time or overtime, word processing, photocopying, in house
printing, insurance and other ordinary business expenses are included within the scope of
payment for services and are not reimbursable expenses. Travel expenses must be authorized in
advance and shall only be reimbursed to the extent consistent with City travel policy.
Additional Services
Consultant shall provide additional services outside of the services identified in Exhibit A only
by advance written authorization from the City's Project Manager prior to commencement of any
additional services . Consultant shall submit, at the Project Manager 's req uest, a detailed written
proposal including a description of the scope of additional services, schedule, and proposed
maximum compensation.
15
Cupertino Standard Forni Conlrnct-updat<:d 212015