16-117 Environmental Consulting Services, Noise Impact and Mitigation Study ServciesAGREE:MENT BET,VEEN THE CITY OF CUPERTINO AND
ENVIRONMENT AL CONSULING SERVICES FOR NOISE IMP ACT AATD
MITIGATION STUDY SERVICES
THIS AGREEMENT, is entered into this 1st day of July, 2016, by and bet\veen the
CITY OF CUPERTINO, a California municipal corporation ("City"), and Environmental
Consulting Services , a California Corporation, whose address is 18488 Prospect Road,
Suite 1, Saratoga, California 95070 (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 cany 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 perfo1m the
special services which will be required by this Agreement.
C. Consultant possesses the skill, experience, ability, background, ce1iification
and knowledge to pro v ide the services described in this Agreement on the te1ms and
conditions desc1ibed herein.
D. City and Consultant desire to enter into an agreement for "on-call" noise
impact and miti gation studies for various planning projects and upon the tem1s and
conditions herein.
NOW, THEREFORE, the Parties mutually agree as follows :
.1. TERl\1
The te1m of this Agreement shall commence on July 1, 2016 , and shall te1minate
on June 30, 2017 , unless tenninated earlier as set f01ih herein.
2. SERVICES TO BE PERFOR1\1ED
Consultant shall perfo1m each and every service set f01ih in Exhibit "A" pursuant
to the schedule of perfo1mance set fo1ih in Exhibit "A ," attached hereto and incorporated
herein by this reference.
3 . COMPENSATION TO CONSULTANT
Consultant shall be compensated for services perfo1med pursuant to this A greement
in a total amount not to exceed EIGHTEEN THOUSAND dollars ($18 ,000.00) based on
the rates and tem1s set fo1ih in E xhibit "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 perfomrnnce of
this Agreement.
5 . STAND ARD OF CARE
Co n s ult ant agr ees to p er fo 1111 all serv ices required b y thi s Agr eem ent in a maimer
conm1ensurate w ith the prev ailing standards .oflike professionals in the San Francisco Bay
Page l of JO
Consultant contract--Environmental Consulting Services , FY 16-17
Area and agrees that all services shall be performed by qualified and experienced personnel
who are not employed by the City nor have any contractual relationship with City.
6. INDEPENDENT PARTIES
City and Consultant intend that the relationship between them created by this
Agreement is that of 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 Con sultant.
Pa yments 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 ba s is
of race, religious creed, color, national origin, ancestry, handicap, disability, marital status,
pregnancy, sex, age, sexual orientation, or any other protected class. Consultant agrees that
any and all violations of this provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS
~ Standard Indemnification:
Consultant shall, to the fullest extent allowed by law and without limitation of the
provisions of this Agreement related to insurance, with respect to all services performed in
connection with the Agreement , indemnify, defend , and hold harmless the City and its
officers, officials, agents, employees and volunteers from and against any and all liabilit y,
claims , actions , causes of action or demands whatsoever against any of them , including
any injury to or death of any person or damage to prope1ty or other liabilit y of any nature,
whether physical, emotional, consequential or otherwise , arising out, pe1taining 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 prov isions of this Section survive the
completion of the Services or termination of this Contract.
10. INSURANCE:
A. General Requirements. On or before the commencement of the term of thi s
Page 2 of 10
Consultant contract -Environmental Consulting Services, FY 16 -1 7
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 ce11ificates , 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 thereot: the insurer affording coverage shall provide
thi1ty (30) days' advance written notice to the City of Cupe11ino by ce11ified mail, Attention:
City Manager." Consultant shall maintain in force at all times dming the perfo1mance 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 ce11ificates.
B. Subrogation Waiver. Consultant agrees that in the event of loss due to any
of the pe1ils 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
msurance.
C. Failure to secure or maintain insurance. If Consultant at any time dming the
tenn hereof should fail to secure or maintain the foregoing insurance, City shall be
pe1mitted 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 pennitted by law and computed from the date w1itten 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 premimn,
deductible p011ion 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 dete1mine 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. Fm1hennore, the requirements for coverage and limits shall be the minimum
coverage and limits specified in this Agreement, or the broader coverage and maximum
limits of coverage of any insurance policy or proceeds available to the named insured,
whichever is greater.
11 . CONFLICT OF INTEREST
Consultant wan-ants that it presently has no interest, and will not acquire any
Page 3 of 10
Consultant contract -Environmental Consulting Services , FY 16-17
interest, direct or indirect, financial or otherwise, that would conflict in any way with the
perf01mance 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 ce11ain 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 pai1ner or joint
venturer or syndicate member or cotenant, if Consultant is a pai1nership or joint venture or
syndicate or cotenancy, which shall result in changing the control of Consultant, shall be
construed as an assignment ofthis Agreement. Control means fifty percent (50 %) or more
of the voting power of the corporation.
13. SUBCONTRACTOR APPROVAL
Unless prior wiitten consent from City is obtained, only those people and
subcontractors whose names and resumes are attached to this Agreement shall be used in
the perfo1mance ofthis 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
cany general, automobile and professional liability insurance in reasonable conformity to
the insurance canied 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 fu11her agrees to include these same provisions with any sub-subcontractor.
A copy of the Owner Contract Document Indemnity and Insurance prov isions will be
furnished to the subcontractor upon request. Consultant shall require all subcontractors to
provide a valid certificate of insurance and the required endorsements included in the
agreement p1ior to commencement of any work and will provide proof of compliance to
City.
14 . PERMJTS AND LICENSES
Consultant, at his /her sole expense, shall obtain and maintain during the te1m of
this Agreement, all appropriate pe1mits , ce11ificat es and licenses including, but not limited
to , a City Business License , that may b e required in connection w ith the p erfo1mance of
Page 4 of l0
Consultant contract-Environmental Consulting Services , FY 16-17
services hereunder.
15. REPORTS
A. Each and every repo11, draft, work product, map, record and other
document, hereinafter collectively referred to as "Rep011", reproduced, prepared or caused
to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the
exclusive prope11y of City. Consultant shall not copyright any Rep011 required by this
Agreement and shall execute appropriate documents to assign to City the copyright to
Reports created pursuant to this Agreement. Any Rep011, inforn1ation and data acquired or
required by this Agreement shall become the prope11y of City, and all publication iights
are reserved to City. Consultant may retain a copy of any repo'11 furnished to the City
pursuant to this Agreement.
B . All Repo11s 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 01iginal 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 fo1m as City may require, furnish
rep011s concerning the status of services required under this Agreement.
D. All Rep011s required to be provided by this Agreement shall be printed on
recycled paper. All Rep011s shall be copied on both sides of the paper except for one
original, which shall be single sided.
E. No Rep011 , info1mation 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 p1ior approval by City.
16. RECORDS
Consultant shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts and other such info1mation required by City that relate to the
perfo1mance of services under this Agreement, in sufficient detail to pe1mit 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
transc1ipts therefrom as necessary, and to allow inspection of all work, data, documents,
proceedings and activities related to this Agreement. Such records , together with
supp011ing documents, shall be kept separate from other documents and records and shall
be maintained for a pe1iod of three (3) years after Consultant receives final payment from
City for all services required under this agreement.
If supplemental examination or audit of the records is necessary due to concerns
raised by City's preliminary examination or audit of records, and the City's supplemental
examination or audit of the records discloses a failure to adhere to appropriate internal
financial controls, or other breach of contract or failure to act in good faith, then Consultant
shall reimburse City for all reasonable costs and expenses associated with the supplemental
examination ot audit.
17 . NONAPPROPRIATION
This Agreement is subject to the fiscal prov isions of the Cupe11ino Municipal Code
and Agreement will te1minate without any penalty (a) at the end of any fiscal year in the
event that funds are not approp1iated for the following fiscal year, or (b) at any time within
Pag e 5of10
Consultant contract -Envirorunental Consulting Services , FY 16-17
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 cmtridges;
• 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
• Orde1ing 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 w1iting 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 Cupe1iino
10300 T01Te Ave.
Cupe1iino CA 95014
Attention: Amii Shiivastava, Assistant City Manager
TO CONSULT ANT:
Environmental Consulting Services
18488 Prospect Road , Suite 1
Saratoga, CA 95070
H. Stanton Shelley
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 perfonnance 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 tenninating this Agreement by giving seven (7) calendar days' prior
Page 6 of10
fonsultant contract -Environmental Consulting Services , FY 16-1 7
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 is for cause, City may deduct from such
payment the amount of actual damage, if any, sustained by City due to Cqnsultant's
failure to perform its material obligations under this Agreement. Upon termination,
Consultant shall imm~diately 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 materi a ls 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 s ucces so rs 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, adve11ising, 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 sa me or any other term,
covenant, or condition contained herein, whether of the same or a different character.
25. INTEGRATED CONTRACT
This Agreement represents the full and complete und e rstanding of every kind or
nature whatsoever between the Parties , and all preliminary ne got iatio ns and agreements of
whatsoever kind or nature are merged he rein . No verbal agreement or impli ed 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 wa rrant that they have
the legal capacity and authority to do so on behalf of their respective le ga l entities.
27. INSERTED PROVISIONS
Eac h provision and clause req uired by law to be in serted into the Agreement shall
Pa ge 7 of 10
Consultant contract-Environmental Consul ting Services, FY 16-1 7
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 inse1ted, 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 prov isions ofthis Agreement.
All unchecked boxes do not apply to this Agreement.
IN WITNESS WHEREOF, the paities have caused the Agreement to be exeeuted .
CONSULTANT
Environmental Consulting Services
By /) ~ s/odtA
Title fvi ·13 c.1 tJµ "~ J
Date <;? ~ "'3 / ..2 J 1..
APPROVED AS TO FORM:
. ~ City Attorney
ATTE~ b 4#-
City Clerk 1 · rf · i {o
CITY OF CUPERTINO
:y71~
Title A&!r-t!ITY N6~
Date tl8'/81}M
0 O ver $175,000 -Council Approval Required
0 O ver $45,00 0-D epartment H e ad A p p roval R equired i.2i' U p to $4 5 ,000-D esignated Supervi sor Ap proval Required
Exhibits: (Check box for exh ibits that apply to this contract and attach)
Page 8 of IO
Consu l ten t contract -Envi ronrne ntal Consul tine Services , FY 16-17
IZJ Exhibit "A"-Scope of Services
D Exhibit "B"-Schedule of Perf01mance
D Exhibit "C " -Compensation
IZJ Exhibit "D "-Insurance Requirements and Proof of Insurance
D Exhibit "E"-Mandated Reporting Acknowledgement
D Exhibit "F" -Background/Fingerp1int/TB D eclaration
D Exhibit "G"-Nondisc1imination-State/Federal/HUD funded project
D Exhibit "H" -Request for City Manager to Waive Inf01mal Bidding Requirements
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
PO #2017-).i g
100-71-701 700-702 $18,000.00
Total: $18,000.00
9
Exhibit A
Scope of Services and Compensation
1. Scope of Services: Consultant shall provide professional services as requested
by the City of Cupertino.
Noise impact and mitigation studies for various planning projects, including data
gathering and field monitoring, analysis and modeling, mitigation measure
development and report preparation.
II. 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 under Section 1 of this Exhibit shall not exceed Eighteen Thousand Dollars
($18,000.00). Any work performed or expenses incurred for which pay;nent would
result in a total exceeding the maximum amount of compensation set forth herein
shall be at no cost to the City.
III. Rates:
Hourly: $160.00 plus expenses
N. Invoices
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 quarter, persorn1el who performed the services,
hours worked, task(s) for which work was performed).
V. Reimbursable Expenses
Normal project related reimbursable expenses such as printing, postage,
delivery service, long distance phone calls, facsimile transmissions, mileage, and
special project-related supplies.
VI. 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 request, a detailed written proposal including a description of the
scope of additional services, schedule, and proposed maximum compensation.
Exhibit D
Insurance Requirements and Proof of Insurance
Proof of insurance coverage described below is attached to this Exhibit, with City named
as additional insured .
Consultant shall maintain the following minimum insurance coverage:
A. COVERAGE:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liabilitv:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $500,000 each occunence
$1,000 ,000 aggregate -all other
Property Damage: $100 ,000 each occunence
$2 50,000 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 occunence
Property Damage: $100,000 each occunence
or
Combined Single Limit: $5 00 ,000 each occurrence
Professional Liability
Professional liability insurance which includes coverage for the professional acts,
enors and omissions of Consultant in the amount of at least $1,000,000 .
10