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16-085 MTH Engineers for Consultant Services for the Quinlan Community Center Fire Alarm Control Panel Replacement ProjectFIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND MTH ENGINEERS FOR ADDITIONAL ELECTRICAL ENGINEERING SERVICES This First Amendment to the Agreement between the City of Cupertino and MTH ENGINEERS, for reference dated June 24, 2016, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "CITY") and MTH ENGINEERS, A C a lifornia corporation whos e address is 3350 Scott Blvd., Bldg. 11 , Santa Clara, CA 95054 (hereinafter "CONSULTANT"), and is made with reference to the following: RECITALS : A. On June 24, 2016, an agreement was entered into by and between CITY and CONSULTANT (hereinafter "Agreement"). B. CITY and CONSULTANT desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agre ed by and between and undersigned parties as follows : 1. Paragraph 1, TERM, is modified to read as follows: "The term of this Agreement shall commence on the date the agreement is executed and shall terminate on December 31, 2017 unless terminated earlier as set forth herein." Firs t A m endme nt to th e Ag reemen t fo r La ndscape A rchitec tura l Se rv ices -SSA La n d sca p e Arch itec ts, In c . Page 1 o f 2 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 MTH Engineers, INC. tle -"t:tv l rSC,,,('.f:A-l_ Date 1~t4':/l7 3350 Scott Blvd., Ste. 11 Santa Clara, CA 95054 Phone no. (408) 986-8558 - CITY OF CUPERTINO A Municipal Corporation ~~Works, Timm Borden APPROVED AS TO FORM: ATTEST: B~~ielt City Clerk, Grace Sch91idt '1 -2--r -17 Account No .: 420-99-023-900-905-QCC 004-02 -0 2 Total Contract Amount: $ 14,000 (Amendment No.1 Amotmt: no change) Fi rst Amendment to the Agreement for Landscape Architect u ra l Serv ices -SSA Landscape Architects, Inc. Page 2 of 2 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE IMM/DDIYYYY) \,,,,._..-' 3/27/2017 THIS CERTIFICATE IS ISSUED AS A MATIER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the pollcy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsemenl A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER ~~~~~CT Connie Ishizaki ... ...... Leavitt Pacific Insurance Brokers, Inc. PHONE . (408) 288~6262 . rt2, No): (·10 8 ) 298 -7635 . (f,/C, No, Ext):. .. ..... ....... . ............. E-MAIL ' ' h' .. k> @1 ' .. License #0079674 ADDRESS:<::on_nie-is iza i .eavitt.com ........ 1330 s Bascom Ave INSURERjS) AFFORDING. COVERAGE NAJC # ·-· San Jose CA 95128 I_N.SIJRERA. :'J:'.r,,nspc:,rt:a ti.on Insurance Company 20494 INSURED INSUREfl B :All .. :3 .t .. ct .t .e ... Insuranc:e Company 19232 MTH Engineers Inc . Partnership 1.N5_UREfl C :(?ale Rive.r Insurance Company 34630 3350 Scott Blvd., Bldg. 11 INSURER D: INSURER E.: Santa Clara CA 95054 INSURERF: COVERAGES CERTIFICATE NUMBER·l 7 /18 Master REVISION NUMBER· THIS IS TO CER TIF Y TH A T THE PO LIC IES OF INSURANC E LISTED BELOW HAV E BEEN IS SU ED TO THE INSURED NAM ED ABOVE FOR THE POLIC Y PERIOD INDICATED. NOTWITH STANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CON TR AC T OR OTHER DOC UMENT WITH RESPECT TO WHICH TH IS CERTIFICATE MAY BE IS S UED OR MAY PERTA IN . THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS ANO CONDITIONS OF SUC H POLICIES . LIMIT S SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR .. ADDL SUBR POLICY EFF POLICY EXP LIMI TS LTR TYPE OF INSURANCE "'"-... ~ POLICY NUMBER fMM/DD/YYYY\ fMM/DD/YYYY\ X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE s 1,00 0,00 0 A CL.ftJMS~MADE X OCCUR DAMAGE. f(fRENTEO 300,000 PREMISES {Ea occurrence) s X 81029113370 1 /1 /2017 4/1/2018 MED EXP {Any one person) s 10,000 PEflSONAL & 1\DV INJURY s 1,000,000 GEN·L AGGREGA TE LI MIT APPLIES PER GENERAL AGGREGATE s 2,000 ,000 X POLICY PRO-I.CC PRODUCTS -COMPiOP AGG s 2,000,000 JECT OTHER. s AUTOM OBILE LIAB ILITY COMB INED SINGL E LIMIT s 1 ,000,000 {E.:i ~~dent) X ANY AUTO BODIL Y INJURY iPer person) s B ALL OWNED SCHEDU LED 018326286 1/1/2017 4 /1 /2018 BODILY INJURY (Per accident) s __ AUTOS -·-···-·· AUTOS PR OPERTY DAMAGE .. NON-0\NNED s HI RED AUTO S AUTOS . (Per accident) s X UMBRELLA LIAB OCCU R EACH OCC URREN CE s 1,000 ,DOO --- A EXCESS LIAS CLAIMS-MAD:' AGGREGATE s 1,000,0 00 DED X RE TEN TIONS 10,000 540 29413417 4 /1/201'/ 4 /1/2018 s WORKERS COMPENSATION X PER OTH- AND EMPLOYERS' LIABILITY STATUTE ER YIN At.J Y PROPRIETOR/PARTNER1EX ECU TI VE E. L. EACH ACCIDEN T s 1,000,00 0 OFFICER/MEM8EH EXCLUDED? N/A C (Mandatory In NH) MTWC8 12957 4 /1/2017 4 /1 /2018 EL. CIS~.A!,E • EA EMP LOYEE_ S 1,000,000 If yes. describe uncJer DESCR IPTION OF OPER,\TIONS oelow E.L. DISEASE· POLICY LIM IT s 1,000 .00 0 DESCRIPTION OF OPERATIONS/ LOCATIONS /VEHICLES (ACORD 101, AddlUonal Remarl<1 Schedule, may be attached W more space ls required) The City of San Jose, its officers , employees, agents and contractors are named as Additional Insured per attached GL form SB -1469 32-E. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of San Jo se-Finance THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Risk Management ACCORDANCE WITH THE POLICY PROVISIONS. 2 00 East Santa Clara St, 13th San Jose, CA 9511 3 AUTHORIZED REPRESENTATIVE ·;;:~.~: .... , . (,:• .. ~;?~·-··--Fred Stafford/MH/ALS ,¢':,,,... © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) INS025 (201•01) The ACORD name and logo are registered marks of ACORD AGREEMENT BETWEEN THE CITY OF CUPERTINO AND MTH ENGINEERS FOR CONSULTANT SERVICES FOR THE QUINLAN COMMUNITY CENTER FIRE ALARM CONTROL PANEL REPLACEMENT PROJECT THIS AGREEMENT, for reference dated J lJ..'t.J...2f , 2016, is by and between CITY OF CUPERTI NO, a municipal corporation (hereinafter referred to as "City"), and MTH Engineers, a (California corporation) whose address is 3350 Scott Boulevard, Bldg. 11 , Santa Clara, CA 95054 (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 Californ ia with the power to carry on its business as it is now being conducted under the Constitution an d the stah1tes 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 knowle dge 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 electrical engineering services upon the terms and conditions h erein. NOW, THEREFORE, it is mutually agreed b y and between the undersigned parties as follows: 1. T ERM: The term of this A g reement shall commence on the date this agreement is executed and shall terminate on December 3 1, 2016, unless terminated ea rlier as set forth herein. 2. SERV ICE S TO BE P ERFORMED: Consultant shall perform each and every service set forth in Exhibit "A", titled "Scope of Services", which is attached h ereto and incorporated herein by this reference. 3. SCH EDULE OF PERFORMANCE: The Services of Consultant are to b e completed according to the schedule set out in Exhibit B, titled "Sdwdule of Performance ", which is attached hereto and incorporated herein by this reference. 4. COMPE NSATION TO CONSULT ANT: The m aximum compensation to be paid to Consultant under this agreement shall not exceed Fourteen Thousand Dollars ($14,000). The rate of payment is set out in Exhibit C, titled "Compensation", which is attached hereto and incorporated herein. Consu ltant shall furnish to City a d etailed 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, dearly stating as a minimum the total Contract amount, amount paid to date, percent complete and amount due. Pa ge 1of10 C ity of Cupertin o Design Profess io na l Agreement For the Quinlan Co mmunity Center Fire Alarm Control Panel Replacement Project 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 standar d s of like professionals in the San Francisco Bay Area and agrees that all services shall be performed b y q u alified and ex p e rienced personnel who are not employed by the City nor have any contractual relatio nship with City . 7. INDE PENDENT PARTIES: Ci ty a nd Consultant intend that the relationship between them created by this Agreement is that of employe r-independent co ntractor. 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, unemploy ment insurance, workers' compensation plans, vacation and sick leave are available from City to Consultant, its employ ees or agents. Deductions shall not be made for any state or fed e ral taxes, FICA payments, PERS pay ments, or other purposes normally associated with an employer- employee r elationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 8. IM MIGRATION REFORM AND CONTROL ACT (IRCA): Consultant assumes any and all responsibility for verifying the identity and employment authoriz ation of all of his/her employee s performing work hereunder, pursuant to all applicable IRCA or other federal, or s ta te rules and regulations. Consultant shall indemnify and hold City harmless from and against any l o ss, damage, liability, costs or ex penses arising from any noncompliance of this provision b y Consu ltant. 9. NO N -DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer/employ ee conduct, Consultant agrees that harassment or discrimination directed toward a job applicant, a City employe e, 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 prov ision shall constitute a material breach of this Agreement. 10. PR OJEC T COORDINATION CITY: Director of Public Works shall be representative of City for all purposes under this Agreement. A lex Acenas i s hereby designated as the Director of Public Works' designee and Project Manager, and shall superv is e the progress and execution of this Agreement. CONSULTANT: Consultant shall assign a single Consultant Project Manager to have overall responsibility for the progress and execution of this Agreement for Consultant. Should circumstances or conditions subsequ ent 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 Page 2 oflO City of Cupertin o Design Pro fe ss ional Agreement For the Quinlan Community Center Fire Alarm Control Panel Replacement Project and approval of the City Project Manager. The designated Consultant Project Manager shall be Julio Herdocia. 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 ca re, 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 performe d 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 li ability 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 Ci ty'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 re imburse 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 Liabilitv. For all liabilities other than those included within paragraph A. above, Consultant shall, to the fullest ex tent allowed by law, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liabili ty, 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 offi cers, 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 Page3ofl0 City of Cupertino Design Profes s ion a l Agreement For the Quinlan Com munity Center Fire Alarm Control Panel Replacement Project under this A greement. 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 parag raph 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 p ro vide thirty (30) days' advance written notice to the City of Cupertino, Attention: City Manager." It i s agreed that Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance re quired by this Agreement with an insurance company that is accep tab le to City and authorized to do insurance business in the State of California . Endorsements naming the Ci ty as additional insured in relation to the commercial general liability and commercial automobile liability policies shall b e submitted with the insurance certificates. A. COVER AGE: Consultant shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2 ) Liability: Commercial general lia bility coverage in the following minimum limits: Bodily Injury: $5 00 ,000 each occurrence $1,000 ,000 aggregate -all other Property Damage: $100,000 ea ch occurrence $25 0,000 aggregate If submitted, co mbine d 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: $5 00,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Limit: $500,000 each accident (4) Professional Lia bility: Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000 ,000 p er claim and in th e aggregate. B. SUBROGATION WAIVER: Consultant agrees that in the event of loss due to any of the perils for which h e/she h as agreed to provide commercial genera l and automotive liability insurance, Consultant shall look solely to his/her insurance for r ecovery. Consultant hereby grants to City, on behalf of any ins urer providing commercial general and automotive liability insurance to either Consultant or City with respect to the services of Page 4of10 City of Cupertin o Design Professi o na l Agree ment For the Quinl an Co mmunity Center Fire Alarm Contro l Panel Replacement Project Consultant h erein, a wai ver of any right to subroga tion which any such insurer of said Consultant may acquire agains t Ci ty b y virtue of the payment of any loss under such insurance. C. FAILURE T O 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 Con s ultant and shall be compensated by the Consultant for the costs of the insurance premiums at the ma ximum rate permitte d by law and computed from the date written notice is received that the premiums have n o t been paid . D. ADDITIONAL INSURED: City, its City Council, boards and commissions, officers, employees and volunteers shall b e name d as an additional insured under all insurance coverages, except any worker's compensation and professional liability insurance, required b y this Agreement. An additional insured named herein shall not be h eld liable for any premium, d e ductible portion of any loss, or ex pense of any nature on this policy or any ex tension thereof. Any other insurance h eld by an additional insured shall not b e required to contribute anything toward any l oss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insu ra nce limits required b y City are not represented as be ing sufficient to protec t Consultant. Consultant is advi sed to confer w ith Consultant's insurance broke r to dete rmine adequate coverage for Consultant. 13. CONFLICT OF INTEREST: Consultant warrants that it is not a conflict of interest for Consultant to p e rform the services required by this Agreem ent. 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 decis ions or serve in a staff capa city as d efine d in Title 2, Di vision 6, Section 18700 of the California Code of Regulations. 14. PR O HIBITION AGAINST TRANSFERS: Consultant shall n ot assign, sublease, h y pothecate, or transfer this Agreement, or any interes t therein, directl y or indirec tly, b y 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, hypotheca te or transferee shall acquire no right or interest b y reason of such attempted assignment, h y potheca tion or transfer. However, claims for m oney b y Consultant from City under this Agreement may be assigne d to a bank, trust company or other financial institution without p rior written consent. Written notice of s uch assignment shall b e promptly furnished to City b y Consultant. The s ale, assignment, transfer or other disposition of any of the issued and outstanding capital s tock of Consultant, or of the interest of an y general partner or joint venturer or syndicate m emb er or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall b e construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power of the corporation. 15. SUBC ONTRACTOR APPROVAL: Unless prior written consent from City is o btained, only those p eople and subcontractors w hose names are include d in this Agreement shall be u sed in the p erformance of this Agreem ent. Page 5of10 C ity ofCupeiiino Desig n Profess ional Agreement For th e Quinlan Community Cent er Fire A larm Co ntrol Panel Replacement Project In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of work er s ' 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 o r services subcontracted hereunder shall be subject to each provision of this Agreement. 16. PER MI TS AND LICENSES: Consulta nt, 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 subconsultan ts pursuant to or in connection with this Agreement, shall be the exclusive property of City. To the extent permitted b y Ti tle 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 co pies of such works for reference and as documentation of its experience and capabilities and in i ts promotional materials. With res pect to Consultant's standard details, Consultant may retain the co pyright, 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 so le risk and expense. D . Consultant shall, at such time and in such form as City may require, furnish reports concerning the stah1 s 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 exce pt 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 b y Consultant or any subconsultant without prior approval by City. Page 6 ofIO City of Cupertino Design Profession a l Agreement For the Quinlan Co mmunity Center F ire Alarm Control Panel Replacement Project G. Ele ctronic and hard copies of Consultant's work product shall constitute th e Proj ect deliv erables. Pl ans shall b e in CAD and PDF formats, and other documents shall be in Microsoft Word and PDF form a ts . 18. RE CORDS: Co nsultant shall m aintain complete and accurate records with respect to sales, costs, ex penses, receipts and other such information required by City that relate to the performance of services under thi s Agreement. Consultant shall maintain adequate records of services provided in sufficient d e tail to permit an eva luation of services. All such records shall be maintained in accordance with generally accepted accounting prin ciples and shall be clearly identified and readily accessible. Consultant shall provide free access to sucl1 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 actfvities related to this Agreement. Such records, toge ther with supporting documents, shall be kept separate from other documents and records and shall b e maintained fo r 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 b y City's preliminary examin a tion or audit of records, and the City's supplemental examination or audit of th e records disclose s 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 ex p enses associated with the supplemental examination or audit. 19. NOTICES: All n oti ces, d emands, requests or approvals to be given under this Agreement shall be given in writing and conclu sively shall be d eemed served when delivered personally or on the second business day after the deposit thereof in the Uni ted States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. A ll no ti ce s, d emands, requests, or approvals from Consultant to City shall be addressed to City at: City of Cupertino Attention: Alex Acenas, PW Proj ec t Manager 10300 Torre Ave . Cupertino CA 95 014 All n o ti ces, demands, requests, or approvals from City to Consultant shall b e addressed to Consultant at: MTH Engineers Attn: Julio Herdocia 3350 Sco tt Blvd ., Bldg. 11 San ta Clara, CA 95054 20. TER MINATIO N: In the event Consultant fails or refuses to perform any of the prov isions 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 Page 7of10 City of Cupe1iin o D es ig n Profess ional Agreement For the Quinl an Co mmunity Center Fire Alarm Contro l Pan e l Repl acement Project written noti ce of default, spe cifying the nahue of such default and the steps necessary to cure such default, Ci ty may terminate the Agreement forthwith by giving to the Consultant written notice thereof. City shall ha ve the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provi ded herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is e arned and unpaid prior to the effective date of termination. In the ev ent 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 b y Ci ty. A. PR EVAILING WAGES: To the extent applicable, Contractor shall comply with the City's Labor Complian ce Program and all other requirements set forth in Labor Code section 1770 et seq. 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 Vz times the basic rate of pay. C. PAYROLL RECORDS: To the extent applicable, Contractor shall comply with California Labor Code Sec ti on 1776 which requires certified payroll records be maintained with the name, address, social security n ._moer, work classification, straight time and overtime hours worked each day and week, and the actual p er diem wages paid to each journeyman, apprentice, worker, or other employee employed b y 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. 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 w hich may direc t 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 h a v ing jurisdiction over this Agreement (or the successors of those authorities.) Any suits brought pursuant to this A greement shall be filed with the courts of the County of Santa Clara, State of California . 23. ADVERTIS EMENT: Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show b ills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. Page 8of10 City of Cupertino Design Professional Agreement For the Quinlan Community Center Fire A larm Control Panel Replacement Project 24. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to b e a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, w hether of the sa me or a different d1aracter. 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 m erged herein . No verbal agreement or implied covenant shall be held to vary the provisions hereof. An y modification of this Agreement will be effective only by written execution signed b y both City and Consultant. 26. GIFT S: A Consultant is familiar with City's prohibition against the acceptance of any gift by a City officer or desi gnated employee, which prohibition is found in City Administrative Procedures. B. Consultant agrees not to offer any City officer or designated employee any gift prohibited b y the Administrati ve Procedures. C. The offer or giving of any prohibited gift shall constitute a material breach of this Agreement b y Co11 s ultant. In addition to any other remedies, City may have in law or equity, City may te rminate this Agre ement for such breach as prov ided in Section 19 of this Agreement. 27. INS ERTED PROVISIONS: Each provision and clause required by la w 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. CAPT IONS: The cap tio ns 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 prov isions of this Agreement. Page 9of10 City of Cupertino Design Professi on a l Agreement For the Quinlan Co mmunity Center Fire Alarm Control Panel Replacement Project P.O. No.: ______ _ IN WITNESS WHEREOF, the parties h ave caused the Agreement to be executed. CONSULTANT MTHc;;J~;;)~5 [Name of Consultant] l.. am~I «l 1 a/f!c;;qpoo; .;J- Titie {1b1 ;-fvl,P&i-- oate Pj~t b Tax I.D. No.: 77 -OO 2 74 04, Address: ?37)7(:::> 5<AIT ftL 50" CITY OF CUPERTINO A M unicipal Corporation B y_,....-.....;..sc,~~....::-===-~--- feLTim Date____,&/~7-~~,,_/;_(p __ ~ I APPROVED AS TO FORM: rks f!t-P<;:, /jf~ C/MA;>-~ c /l_.q-) L..-,...... (.... . / ""'7.---/ L..> / -</-' ..:>r., /andolph Stevenson Hom, City Attorney -"\_ v ATTEST: Grace Schmidt, City Clerk (J;, )-!) -/ G, Contract Amount: $14,000 Acco unt No. : 420-99-023 -90 0-905-QCC 004-02-02 Page IO of IO C ity of C up ert ino D es ig n Profess ional Agreement For the Quinlan Community Center Fire A larm Control Panel Re pl acement Project EXHIBIT A SCOPE OF SERVICES CONSULT ANT s hall perform professional services as detailed in the following sections related to the replacement of the existing fire alarm control panel in the Quinlan Community Center at 10185 N. Stelling Rd., Cupertino, CA SECTION 1. GENERAL A. General PROJECT Description: The PROJECT involves the replacement of the existing fire alarm control panel in the Quinlan Community Center. B. General Performance Requirements: 1. The performance of all services by CONSULT ANT 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 Dire ctor of Public Works or his/her authorized designee (hereinafter collectively "CITY") only . The CITY shall resolve any conflicting direction from other g roups, departments or agencies. 3. CONSULT ANT 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. 4. CONSULT ANT 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. CONSULTANT shall not substitute any team members without the prior approval of the CITY . 5. CONSULT ANT' 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. CON SULTANT shall manage its SUBCONSULTANTS, and administer the PR OJECT. CONSULT ANT shall consult with the CITY, research applicable d esign criteria, and communicate with members of the PROJECT team. Page 1of4 MTH Engin ee rs Agreement Fire Alarm Control Pan el Replacement at Quinlan Community Center Exhibits 7. CONSULTANT shall submit deliverables to the CITY, according to SECTION 2- "TASKS", of this EXHIBIT A for purposes of evaluation and approval by the CITY. C. Estimate of Probable Construction Cost: n/a. SECTION 2. TASKS 1. Develop buil ding floor plans and mezz anine plans in AutoCAD format to show the locatio n o f all existing fire alarm devices. The building and mezzanine plans will be traced fro m the pdf copies of manual drafted architectural plans. 2. Field s urvey the building to update building plan with room modifications that have been constructed after the original construction. 3. Surv ey and locate all fire alarm dev ices on the main building floor and mezzanines. 4 . D evelop a fire alarm riser diagram drawing. 5. Develop fir e alarm system performance specifications. 6. Answer rev i e w comments from County Fire Marshal office. 7 . Assis t the City during the bid phase of the project. 8. Atte n d t he Pre-cons truction Meeting. 9 . Answer Contractor's R e quest for Information (RFI). 10. Rev iew Fire Alarm Panel Shop Draw ings and Material Submittal. 11. Provi d e two (2) s ite v isits during construction. 12. Prov ide final inspection and punch list. Exclusions: 1. Cost estimates EXHIBIT B SCHEDULE OF PERFORMANCE CONSULT ANT shall comple te all work by December 31, 2016. Page 2 of 4 MTH Engineers Agreement Fire Alarm Control Pa n el Re placement at Quinlan Community Center Exhibits A. Maximum Compensation. EXHIBIT C COMPENSATION The CITY agree s to compensate CONSULTANT for professional services performed in accordance with the terms and conditions of this AGREEMENT. The maximum amount of compensation t o be paid to CONSULTANT under this AGREEMENT, including both payment for professiona l services and r e imbursable expenses, shall not exceed FOURTEEN THOUSAND DOLLARS ($14,000). B. Method of Payment For the aforementioned Tasks, CONSULTANT shall invoice the CITY at the completion of all the tasks . Provided CONSULT ANT has completed the services and incurred the reimbursable expenses covered by the Invoice in accordance with the provisions of this AGREEMENT, as determined b y the CITY, the CITY shall pay CONSULT ANT the amount shown on the Invoice within thirty (30) working days of receipt of the Invoice. C. Subconsultant Services. CONSULTANT is directly responsible for any payment for SUBCONSULTANT work on this PROJECT. SUBCONSULT ANT work on this PROJECT is included in the Budget Schedule shown above and shall be billed to the CITY by CONSULTANT as par_t of the Basic Services. D. Reimbursa ble expenses . Reimbursable expe nses are included in CONSULTANT's lump sum compensation, including, but not limited t o, any expenses related to CONSULTANT's internal plan checks, CAD test prints, 8 1/2" x 11" copies or fax copies . There are no separate reimbursable expenses for Basic Services p erfo rmed under EXHIBIT A. E. A dditional 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 shall not authorize and CONSULTANT shall not perform any Additional Services that result in charges in excess of the a bove amount. In the even t A dditional Services are authorized, CONSUL TANT shall submit Invoices in accordance with the CONSULT ANT hourly rate schedule attached to this EXHIBIT C. The rates shown in the EXHIBIT C-1 sall stay in effect during the full term of the contract. The CITY shall pay Additional Services Invoices as provided in this EXHIBIT C. P a ge 3 of 4 MTH Engineers A greement Fire Alarm Control Panel Repla cement at Quinlan Community Center Exhibits EXHIBIT C-1 CONSULT ANT HOURLY RA TES FOR ADDITONAL SERVICES MTH Engineers Descripti on Principal Engineer Supervising Engineer Senior Engineer Engineer Designer CAD Drafting Cle rical/Technical Support MTH Engineers Agreement Page 4 of 4 Fire Alarm Control Panel Re placement at Quinlan Community Center Exhibits Billing Rate/Hr. $170 $150 $135 $125 $115 $105 $ 65