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16-139 John Northmore Roberts & Associates for Design Professional Services for City Hall Turf Reduction Project, Project No. 2017-03P.O.# ;)-b 11"° -,'.2...fl s- AGREEMENT BETWEEN THE CITY OF CUPERTINO AND JOHN NORTHMORE ROBERTS & ASSOCIATES_FOR DESIGN PROFESSIONAL SERVICES FOR CITY HALL TURF REDUCTION PROJECT This Agreement for Design Professional Services ("Agreement"), dated October 3. 2016 , is entered into by and between City of Cupertino, a municipal corporation ("City"), and John Northmore Roberts & Associates, a sole proprietor, ("Design Professional "). 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 . Design Professional represents that it is specially trained, experienced and competent to perform the landscape architecture services ("Services ") required for the City's Ci t y Hall Turf Reduction Project ("Project"). C. Design Professional represents that it is duly licensed in good standing by the State of California to perform such Services and has submitted a proposal , dated September 12. 2016 ("Proposal ") in response to the City's request fo r proposals. D. City is entering into this Agreement in reliance upon Design Professional 's representations , set forth above , to provide the Services in accordance with the terms and conditions of this Agreement. TERMS AND CONDITIONS 1. TERM: The term of this Agreement ("Term ") will begin on the date this Agreement is fully executed by both parties and , unless terminated earlier as set forth below or extended by a written amendment to this Agreement, will expire upon on October 30, 2017. 2. SERVICES TO BE PERFORMED : A. Basic Services. Design Professional will provide Basic Services under this Agreement as further described the Scope of Services set forth in Exhibit A, Scope of Services, attached hereto and incorporated herein, and as further specified in the Proposal, except to the extent that any provision in the Proposal conflicts or is inconsistent with this Agreement and the Exhib its hereto, or as otherwise expressly rejected in writing by the City. Basic Services may be divided into separate sequential tasks (''Tasks") as further specified in Exhibit A. City of Cupertino John Northmore Roberts & Associates For Prj # 2017 -03 City Hall Turf Reduction Page 1of22 !Au1111t [)' !,; f'1cf-S1119it Pr<,j<?ct-r INAL-2016 09] B. Additional Services. City may request , at any time during the Term of this Agreement, that Design Professional provide additional services related to the Project, which are not already encompassed, expressly or implicitly, in this Agreement, Exhibit A or the Proposal ("Additional Services"). Any Additional Services must be authorized in writing by City. Design Professional will not be entitled to compensation for Additional Services provided without or prior to the City's written authorization . Duly authorized Additional Services are subject to all of the provisions that apply to Basic Services under this Agreement, except and only to the extent otherwise specified. All references to "Services" include Basic Services and any authorized Additional Services. 3. SCHEDULE: All Services must be provided within the times specified in Exhibit B, Schedule of Performance, attached hereto and incorporated herein. Design Professional must promptly notify the City of any actual or potential delay in providing the Services as scheduled to afford the City adequate opportunity to address or mitigate the delay if possible. Design Professional must begin each separate Task included in Basic Services upon receipt from City of a notice to proceed ("Notice to Proceed ") for that Task, and must complete the Task within the time specified in Exhibit B. 4. COMPENSATION: A. Maximum Compensation . The cumulative total payment to Design Professional for Basic Services, Additional Services and expenses under this Agreement may not exceed $ 48.000. Design Professional is not entitled to any payment for Services or expenses in excess of this maximum limit. B. Basic Services. City will pay Design Professional $ 43.640 ("Lump Sum Price"), for the complete and satisfactory performance of the Basic Services in accordance with this Section 4 and as may be further specified in Exhibit C, Compensation, attached hereto and incorporated herein. The Lump Sum Price is completely inclusive of all time and expenses to provide the Basic Services, including, but not limited to, subconsultant costs, materials, supplies, equipment, travel, taxes, overhead and profit. If, for any reason, Design Professional does not fully complete the Basic Services it will only be entitled to a percentage of the Lump Sum Price that is proportionate to the percentage of Basic Services that were completed to the City's reasonable satisfaction. C. Additional Services. Additional Services that have been duly authorized by City as specified above , and provided to the City 's reasonable satisfaction , may be compensated on a lump sum basis or based on time and expenses, subject to a not-to-exceed limit, using the Hourly Rates Schedule and Reimbursable Expenses Schedule included in Exhibit C, Compensation. An allowance of$ 4.360 has been budgeted for Additional Services under this Agreement. The City has the discretion, but not the obligation, to authorize Additional Services up to this not-to-exceed amount, including the discretion to elect not to authorize any Additional Services. For Additional Services provided on an hourly basis, Design Professional will be entitled to compensation for costs other than direct labor, normal business expenses and overhead, based on the documented actual cost only, with no markup or surcharge ("Reimbursable Expenses "). Design Professional will not be entitled to reimbursement for in house copying , printing , faxes, telephone charges, employee overtime , or travel to City's offices City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 2 of 22 [/191•111 Uc-·~ I 1C'f S111q!1. I 'ro1v;t-I INAL-2016 09j or to t he Project site , unless or to the extent such expenses are specifically authorized in Exhibit C . D. Invoices and Payments. City will pay Design Professional for Services provided to the City 's reasonable satisfaction, within 30 days following receipt of a properly submitted invoice for Services provided during the preceding calendar month. The invoice must separately itemize and provide subtotals for Basic Services and Additional Services, and must state the percentage of completion for each Task as further specified in Exh ibit C . City will notify Design Professional in writing if it disagrees with the stated percentage of completion, and if the disagreement is unresolved, City will pay Design Professional based on the portion of Services that City agrees have been satisfactorily completed at that point. 1. Time and Expenses: For Additional Services provided on an hourly basis , each invoice must also include, for each day Services were provided: a. The name and title of each individual or subconsultant providing Services ; b. A succinct summary of the Services performed by each individual or subconsultant ; c. The time spent by each individual or subconsultant providing those Services , in 30 minute increments ; d. The applicable hourly billing rate or subconsultant charge and payment due; e . An itemized list with amounts and explanation for all permitted reimbursable expenses. 2. Rates and Receipts: All hourly rates and reimbursable expenses must conform to the City-approved rates set forth in Exhibit C, which will be in effect for the entire Te rm of the Agreement. Each invoice must attach legible, dated receipts for all Reimbursable Expenses . 5. TIME IS OF THE ESSENCE: Time is of the essence for the performance of all Services required under this Agreement and for all of Design Professional 's duties under this Agreement. Design Professional must at all times have sufficient , qualified staff or subconsultants assigned to timely provide all Services under th is Agreement. Design Professional must take appropriate measures to avoid delay of Project completion, including , but not limited to , prompt submission of delive rables and any required revisions, and prompt responses to City or contractor requests , including, but not limited to, requests for information , substitution requests and change order requests . Failure to comply with the schedule requirements or failure to timely submit deliverables or provided responses as specified under this Agreement may be deemed a material breach of this Agreement. 6. STANDARD OF CARE: All Services must be provided in a manner that meets or exceeds the standard of care applicable to the same type of design professionals performing similar work in the San Francisco Bay Area. Services may only be performed by qualified and experienced personnel or subconsultants who are not employed by the City and who do not have any contractual City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 3 of 22 relationship with City, with the exception of this Agreement. All Services provided under this Agreement, including authorized Additional Services , must be performed as specified to the City's reasonable satisfaction . 7. ERRORS AND OMISSIONS: Design Professional is solely responsible for all of its or its subconsultants' errors and omissions and must promptly correct any and all such errors and omissions at its sole expense . Design Professional must also take appropriate measures to avoid or mitigate any delay, liability or costs resulting from any such errors or omissions . This provision survives expiration or termination of this Agreement. 8. PROJECT COORDINATION: A. City Project Manager. The City's authorized delegee , Katy Jensen , will be the City's representative for all purposes under this Agreement ("City Project Manager") with authority to oversee the progress and performance of Services under this Agreement. The City reserves the right to replace or provide a substitute City Project Manager at any time, and without prior notice to the Design Professional. B. Design Professional Project Manager. Design Professional will assign a single Project Manager (the "DP Project Manager"), subject to City approval , with authority to receive and act on directions from the City and responsibility for the progress and performance of Services under this Agreement. The designated DP Project Manager is Daniela Pena Corvillon. If a substitute or replacement DP Project Manager is required for any reason , the City must be no t ified of the need as soon as possible , Design Professional 's designation of the individua l proposed to serve as the substitute or replacement will be subject to the Ci ty 's prior written approval. Design Professional is not entitled to compensation for the time required for the substitute or replacement DP Project Manager to obtain sufficient knowledge of the required Services to fully assume the former DP Project Manager's responsibil ities . C. Communication and Coordination. Design Professional is responsible for coordinating the efforts of Des ign Professional 's subconsultants or subcontractors providing Services for this Agreement. Design Professional must also coordinate its Services to the extent reasonably possible , with other City employees or consultants assigned to the Project. Design Professional is responsible for ensuring that the City Project Manager is regularly updated as to the progress or status of the Services, including, but not limited to , participation in meetings or compliance with reporting requirements specified in Exhibit A. Design Professional has an affirmative obligation to promptly notify the City Project Manager of any significant problems or concerns as they arise in order to enable timely resolution or mitigation of any such problems . Design Professional must promptly respond to the City Project Manager's inquiries regarding the Services. 9 . HOLD HARMLESS: A. Indemnity Obligations Subject to Civil Code Section 2782.8 . Design Professional will, 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 (collectively , the "Indemnified Parties") from and against any and all liability, claims, actions , causes of action or demands whatsoever against City of Cupertino John Northmore Roberts & Associates For Prj # 2017 -03 City Hall Turf Reduction Page 4 of 22 [Agrmt-Lle 0 l'1c f-S1ng:i:, I ro1c ct I l~'iAL-2016 09] any of them , including any injury to or death of any person or damage to property or other liability of any nature (collectively, "Liability"), that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Design Professional or Design Professional's employees, officers, officials, agents or subconsultants. Such costs and expenses shall include reasonable attorney fees for legal counsel of City 's choice, expert fees and all other costs and fees of litigation . Design Professional is not obligated under this Agreement to indemnify City to the extent that any Liability is caused by the sole or active negligence or willful misconduct of any of the Indemnified Parties. In addition to its indemnity obligations, Design Professional will provide its immediate and active cooperation and assistance to the City, at no additional cost to the City, in analyzing , defending , and resolving such Liability. B. Claims For Other Liability. For all liabilities other than those included within paragraph (A) above, Design Professional will, to the fullest extent allowed by law, indemnify, defend, and hold harmless the Indemnified Parties against any and all liability, claims, actions , causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage to property or other liability of any nature, that arise out of, pertain to, or relate to the performance of this Agreement by Design Professional or Design Professional's employees, officers , officials, agents or subconsultants . Such costs and expenses shall include reasonable attorney fees for legal counsel of City 's choice, expert fees and all other costs and fees of litigation . Design Professional will 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 the Indemnified Parties. C. Claims Involving Intellectual Property. In addition to the obligations set forth in paragraphs (A) and (B) above, Design Professional will indemnify, defend, and hold the Indemnified Parties harmless from and against any claim in which an alleged violation of intellectual property rights, including but not limited to copyright or patent rights, arises out of, pertains to, or relates to Design Professional's negligence , recklessness or willful misconduct under this Agreement. Such costs and expenses will include reasonable attorney fees for legal counsel of City's choice, expert fees and all other costs and fees of litigation . D. Survival. The requirements of this section survive expiration or termination of this Agreement. 10. INSURANCE: On or before the commencement of the Term of this Agreement, Design Professional must furnish City with certificates showing the type, amount, effective dates and dates of expiration of insurance coverage required in this section. Such certificates, which do not limit Design Professional 's indemnification obligations, must also contain substantially the following statement: "If any of the above insurance covered by this certificate is canceled before the expiration date thereof, the insurer affording coverage will provide 30 days advance written notice to the City of Cupertino , Attention : City Manager." Design Professional will maintain in force at all times during the performance of this Agreement all insurance coverage required by this Agreement with an insurance company that is acceptable to City and authorized to do insurance business in the State of California. Design Professional must also submit endorsements with the certificates naming the City as additional insured in relation to the commercial general liability and commercial automobile liability policies, as further specified below. City of Cupertino John Northmore Roberts & Associates For Prj # 2017 -03 City Hall Turf Reduction Page 5 of 22 [Ag1 Pl I )c I rof S111g1E: f r<Jjl I f 1r'1,4.l 20' f' (l>:lj A. Coverage. Design Professional must maintain the following insurance coverage: 1. Workers' Compensation: Statutory coverage as required by the State of California. If Design Professional is self-insured, it must provide its duly authorized Certificate of Permission to Self-Insure. 2 . Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $500 ,000 each occurrence $1,000 ,000 aggregate -all other Property Damage: $100,000 each occurrence $250 ,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of $1,000 ,000 will be considered equivalent to the required minimum limits shown above. 3 . Automotive: Commercial automotive liability coverage for owned, non-owned and hired vehicles , in the following minimum limits : Bodily Injury: $500,000 each occurrence Property Damage : $100,000 each occurrence or Combined Single Limit: $500 ,000 each accident 4. Professional Liability: Professional liability insurance which includes coverage fo r the professional acts, errors and omissions of Design Professional in the amount of at least $1 ,000,000 per claim and in the aggregate . The professional liability insurance must include prior acts coverage, which must remain in effect for four years following the earlier of expiration or termination of the Term of this Agreement. B. Subrogation Waiver . Each required policy must include an endorsement that the insurer waives any right of subrogation it may have against the City or the City's insurers. Design Professional agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, Design Professional will look solely to its insurance for recovery. C. Failure to Comply. If Design Professional at any time during the Term of this Agreement fails to secure or maintain the required insurance, City may obtain or maintain the insurance in the Design Professional's name or on behalf of the Design Professional and will be compensated by the Design Professional 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 Endorsements. City, its City Council , boards and commissions , officers , officials, employees , agents and volunteers must be named as additional City of Cupertino John Northmore Roberts & Associates For Prj # 2017 -03 City Hall Turf Reduction Page 6 of 22 insureds under all insurance coverages , except any worker's compensation and professional liability insurance , required by this Agreement. Any additional insured will 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 will not be required to contribute anything toward any loss or expense covered by the insurance required under this Agreement. E. Sufficiency of Insurance. The insurance limits required by City are not represented as being sufficient to protect Design Professional. Design Professional is advised to confer with Design Professional's insurance broker to determine adequate coverage for Design Professional. 11. INDEPENDENT CONTRACTOR: City and Design Professional intend that the relationship between them created by this Agreement is that of owner-independent contractor. The manner and means of providing the Services are under the control of Design Professional , 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 Des ign Professional 's performance of the 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 Design Professional , its employees or agents. Deductions will not be made for any state or federal taxes, FICA payments, PERS payments, or other pu rposes normally associated wi t h an employer-employee relationship from any payments due to Design Professional. Payments for the above items , if required , are the responsibility of Design Professional. 12. SUBCONSULTANTS: Unless prior written consent from City is obtained, only those individuals and subconsultants whose names are included in this Agreement , including the Exhibits hereto, may provide Services under this Agreement. Design Profess ional must require all of its subconsultants providing Services under this Agreement to comply with the terms and conditions of this Agreement. Any subconsultants employed by Design Professional must be required to furnish proof of workers' compensation insurance and must also be required to carry general , automobile and professional liability insurance in reasonable conformity to the insurance required for Design Professional. 13. IMMIGRATION REFORM AND CONTROL ACT CIRCA): Design Professional assumes any and all responsibility for verifying the identity and employment authorization of all of its employees performing the Services , pursuant to all applicable IRCA or other federal, or state laws, rules or regulations . Design Professional will indemn ify and hold City harmless from and against any loss , damage , liability, costs or expenses arising from any noncompliance with this section by Design Professional. 14. NON-DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer or employee conduct , Design Professional agrees that harassment or discrimination directed toward a job applicant, an employee , a City employee , or any other person, by Design City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 7 of 22 Professional or Design Professional's employees o r subconsultants on the basis of race, religious creed, color, national origin, ancestry, handicap, disability , marital status, pregnancy, sex, age , sexual orientation, or any other protected classification will not be tolerated. Any violation of this provision by Design Professional, its employees, subconsultants or agents constitutes a material breach of this Agreement, and grounds for termination for cause. 15. PROHIBITION AGAINST TRANSFERS: Design Professional will 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 City 's consent will be null and void, and any assignee, sublessee, hypothecate or transferee will acquire no right or interest by reason of any attempted assignment, hypothecation or transfer. The sale , assignment, transfer or other disposition of any of the issued and outstanding capital stock of Design Professional, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Design Professional is a partnership or joint venture or syndicate or cotenancy , which results in changing the control of Design Professional as a legal entity, will be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the business entity. 16 . PERMITS AND LICENSES: Des ign Professional, at its sole expense , must 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 the Services. 17. WORK PRODUCT: A. Property Rights. Any interest (including copyright interests) of Design Professional or its subconsultant(s) in any work product, document, report, draft, memoranda , map, record , plan, drawing , specification and other deliverable , in any medium (collectively , "Work Product"), which has been prepared or created by Design Professional or its subconsultant(s) pursuant to or in connection with this Agreement, will be the exclusive property of City. No Work Product, information or other data given to or prepared , created, or assembled by Design Professional or its subconsultant(s) pursuant to this Agreement may be made available to any individual or organization by Design Professional or its subconsultant(s) without prior written approval by City. All provisions of this section survive expiration or termination of this Agreement. B. Copyright. To the extent permitted by Title 17 of U .S . Code, all Work Product prepared or created under this Agreement is deemed works for hire and all copyrights in such Work Product will be the property of City . In the event that it is ever determined that any Work Product prepared or created by Design Professional or any subconsultant under this Agreement are not works for hire under federal law, Design Professional hereby assigns to City all copyrights to such Work Product when and as created . Subject to City's prior written approval , Design Professional may retain and use copies of such Work Product for reference and as documentation of its experience and capabilities and in its promotional materials . With respect to Design Professional 's standard details , Design Professional may retain the copyright, but grants to City a perpetual non-exclusive license to use such details in connection with the Services . City of Cupertino John Northmore Roberts & Associates For Prj # 2017 -03 City Hall Turf Reduction Page 8 of 22 C. Patents and Licenses. Design Professional must pay any and all royalties or license fees required for authorized use of any third party intellectual property, including, but not limited to, patented, trademarked, or copyrighted intellectual property that it selects for incorporation into the Services or Work Product provided under this Agreement. D. Re-Use of Work Product. Without limiting any other City right to any of the Work Product prepared or created by Design Professional or its subconsultants, and subject to the limitations of law, all Work Product prepared under this Agreement may be used or modified by the City or its authorized agents in execution or implementation of: 1. The Services for which Design Professional was hired; 2 . Completion of the Services by others; 3. Subsequent additions to the Services; and/or 4. Other City projects. E. Deliverables and Format. Electronic and hard copies of Design Professional's Work Product will constitute the Project deliverables. Plans must be in CAD and PDF formats, and unless otherwise specified, other documents must be in Microsoft Office applications and PDF formats. All written Work Product required to be provided by this Agreement (other than large-scale architectural plans and similar items) must be printed on recycled paper and copied on both sides of the paper except for one original , which must be single-sided. 18. RECORDS: Design Professional must maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by the City that relate to the performance of Services under this Agreement. Design Professional must maintain adequate records of Services provided in sufficient detail to permit an evaluation of the Services . All such records must be maintained in accordance with generally accepted accounting principles and must be clearly identified and readily accessible. Design Professional must provide free access to such books and records to the City or its agents at all times during Design Professional's normal business hours. Design Professional must give the City or its agents the right to examine and audit those items, and to make transcripts or copies as necessary, and to inspect all work, data , documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, must be kept separate from other documents and records which are unrelated to this Agreement and must be maintained for a period of three years after receipt of final payment from the City. 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 Design Professional must reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. The requirements of this section survive expiration or termination of this Agreement. 19. NOTICES: All notices , demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally; or on the second business day City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 9 of 22 1r.qr1 t I'"" i"cf·S 1 'oJ ''C•Jl'J I INAL-2016 ()<11 after the deposit thereof in the United States Mail, postage prepaid, registered or certified; or upon confirmation of delivery by a reputable overnight delivery service. A. To City. All notices, demands, requests, or approvals from Design Professional to City must be addressed to City at: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Katy Jensen. CIP Manager B. To Design Professional. All notices, demands, requests, or approvals from City to Design Professional must be addressed to Design Professional at: <complete with name, address, and contact person for Design Professional> John Northmore Roberts & Associates 2927 Newbury Street. Suite B Berkeley, CA 94 703 Attention: Daniela Pena Corvillon. Project Manager 20. TERMINATION: A. Termination for Convenience. City may, at any time, acting in its sole discretion and without cause, terminate this Agreement for convenience by giving written notice to Design Professional at least seven days before the effective date of the termination. If the Agreement is terminated pursuant to this paragraph, the City will compensate Design Professional for all Services satisfactorily performed prior to the effective date and time of the termination, in accordance with this Agreement. B. Termination for Cause. If Design Professional fails or refuses to perform any of its duties under this Agreement at the time and in the manner required , Design Professional will be deemed in default of this Agreement. If the default is not cured or diligently attempted to be cured by Design Professional within the time specified in the City's written notice of default , or if the Design Professional has otherwise materially breached the Agreement, the City may terminate the Agreement for cause by giving written notice to Design Professional at least seven days before the effective date of the termination, unless otherwise specified in the written notice of default. C. Duties upon Termination. If the Agreement is terminated, whether for convenience or cause, within seven days of the effective date of the termination, Design Professional must promptly deliver to City copies of all Work Product, deliverables, or documents prepared by Design Professional under this Agreement, including both print and electronic versions . Full compliance with this requirement is a condition precedent to final payment following termination. This paragraph survives termination of the Agreement. 21. LEGAL REQUIREMENTS: Design Professional must comply with all applicable local, state or federal laws, rules and regulations, and all ordinances, rules and regulations enacted or issued by City. In addition, if City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 10 of 22 any of the Services provided under this Agreement are subject to prevailing wage requirements under Labor Code Section 1720 et seq., the following provisions apply to those Services: A. Prevailing Wages. To the extent applicable, Design Professional must comply with the City's Labor Compliance Program and all other requirements set forth in Labor Code section 1770 et seq . B. Working Day. To the extent applicable, Design Professional must 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 % times the basic rate of pay. C. Payroll Records. To the extent applicable , Design Professional must comply with California Labor Code Section 1776 which requires certified payroll records be maintained with the name, address , social security number, work classification , straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman , apprentice, worker, or other employee employed by him or her in connection with this Agreement. The payroll records must be made available for inspection as provided in California Labor Code Section 1776. D. Apprentices. To t he extent applicable, Design Professional must comply with California Labor Code Section 1777.5 regarding apprentices . 22 . DISPUTE RESOLUTION: This Agreement will 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 pu rsuant to this Agreement must be filed with the Superior Court for the County of Santa Clara , Sta t e of California , and no other place . If the parties engage in arbitration to resolve a dispute relating to this Agreement , the arbitrator's award must be supported by law and substantial evidence, and must include detailed written findings of law and fact. This section survives expiration or termination of the Agreement. 23. ATTORNEY FEES: If the City initiates a legal action , including a complaint or cross-complaint, arising out of, relating to or seeking the interpretation or enforcement of the terms of this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs , including the attorney fees and costs for any arbitration, appeal , or enforcement of judgment. This attorney fee provision does not apply to legal actions initiated by the Design Professional. This section survives expiration or termination of the Agreement. 24. ADVERTISEMENT: Design Professional may not post, exhibit, display or allow to be posted , exhibited , displayed any signs , advertising , posters or cards of any kind on City property performed under this Agreement without prior written approval from the City. City of Cupertino John Northmore Roberts & Associates Fo r Prj # 2017 -03 City Hall Turf Reduction Page 11of22 25. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 26. THIRD PARTY BENEFICIARIES: There are no intended third party beneficiaries of this Agreement. 27. RECITALS: The parties agree that the above recitals , which are made part of this Agreement, are true and correct. 28. INTEGRATED AND AMENDMENT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant will be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written instrument signed by authorized representatives for both City and Design Professional. If any provision of this Agreement is determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, all remaining provisions will remain in full force and effect. 29. CONFLICT OF INTEREST: Design Professional warrants that it is not a conflict of interest for Design Professional to perform the Services required by this Agreement. Design Professional may be required to fill out a conflict of interest form if the Services provided under this Agreement require Design Professional to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations. 30. GIFTS: Design Professional is familiar with City's prohibition against the acceptance of any gift by a City officer or designated employee, as set forth in City Administrative Procedures. Design Professional agrees not to offer any City officer or designated employee any gift prohibited by the Administrative Procedures. Offering or giving a prohibited gift constitutes a material breach of this Agreement by Design Professional. In addition to any other remedies City may have in law or equity, City may terminate this Agreement for cause as provided in Section 20 of this Agreement. 31. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement is deemed to be enacted herein, and the Agreement will 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 will be amended to make such insertion on application by either party. City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 12 of 22 [/'.p•rnt [)cs I rof-S1nq,, r WJf 1,f·I INAL 2CJ1G ()(]] 32. EXECUTION: The person executing this Agreement on behalf of the Design Professional represents and warrants that the Design Professional has full right, power, and authority to enter into and carry out all actions contemplated by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Design Professional. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. 33. HEADINGS: The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. [Signatures on following page .] City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 13 of 22 IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. DESIGN PROFESSIONAL JOHN NORTHMORE ROBERTS & ASSOCIATES A Sole CITY OF CUPERTINO A Municipal Corporation Name: ohn N. Roberts Title: Owner I Principal Date I tJ / ~(µ; I LP ~frn Bor n, Director of Public Works y-Date __ /o..,,,.._· ~--------,17//c~(p~ /~ Tax l.D. No.: 94-2980604 Address: 2927 Newbury Street. Suite B Berkeley, CA 94 703 APPROVED AS TO FORM: [Telephone No. (510) 843-36661 ~Randolph Stevenson Hom, City Attorney ATIEST: City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Contract Amount: $ 48,000 ~ -. Account No. : 420-99-033 1 ffO -O'°:) P°lf D~ CA V c.ro'-f .O'Z.. .o Z- ~ <rC,f-~ ?,..b l '\.--.... I (n tt:-")A) l -::\--... .?--~ 5 Page 14 of 22 [/'.CJ: 1 ll~s I' r S!rl 1, r ruJf r l·I l!.J<;L 201r, eic•; EXHIBIT A SCOPE OF SERVICES The requirements for Basic Services are set forth in this Exhibit A, including general requirements and specific Tasks. SECTION 1.0 GENERAL 1.10 Project Description: The project site is the Cupertino City Hall located at 10300 Torre Ave., Cupertino, CA. The intent of the project is to replace the existing landscape at the north, west, and south sides of the Cupertino City Hall with a water-conserving, xeriscape alternative, including a specific demonstration garden on the south side. Design Professional will perform professional Landscape Architectural services necessary to produce a design, prepare construction documents, provide bid support and contract administration services to implement the intended project. The construction contract budget for the project is $200,000. The design for project will align with the construction contract budget. 1.11 Design Professional shall provide all professional services required to complete the tasks identified in the Scope of Services . All services performed by Design Professional will be to the City 's satisfaction and consistent with the standard of care provisions in this Agreement. 1.12 The City 's Department of Public Works will manage the Project and this Agreement. Design Professional will receive project direction only from the City 's Director of Public Works or their authorized designee (hereinafter collectively "City"). City will resolve conflicting direction from other groups, departments, or agencies. 1.13 Design Professional will coordinate the project scope of services with City, other City design professionals, contractors or agencies as needed or directed by the City. 1.14 Design Professional will prepare and submit record notes of key meetings with City and Stakeholders. 1.14 Design Professional will manage and administer all sub design professionals used in completion of the project scope of services. 1.15 Services and Deliverables identified in each Task provide the basis for fee compensation. Any deficiencies in the minimum work items identified will cause City to reject the entire submission, require Design Professional to make appropriate corrections, and resubmit, at no cost to City. Earned value for submissions according to the Exhibit C, Compensation Schedule shall not be considered until the Task services and Deliverables are accepted by the City. City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 15 of 22 SECTION 2.0. SCOPE OF SERVICES TASK 1: CONCEPT DESIGN/DESIGN DEVELOPMENT To gather information, confirm objectives, and develop preliminary plans with budget. A. Kick-off Meeting & Site Visit: Meet with City staff and visit site to confirm project objectives, discuss initial program components , and document context for the work. B. Gather and Review Information & Prepare Project Base Map: review past plans and documents relevant to the site provided by City. Documents to be provided by City include, but are not limited to: Topographic Survey in AutoCAD format; Arborist Report and associated map; As-built Irrigation and Planting plans . Review irrigation system requirements provided by City maintenance staff. Prepare project base map from topographic survey in AutoCAD format provided by City. C. Prepare Initial Concept Design Study: Develop preliminary diagrammatic concept site design and plant massing plan studies for review with City staff. Studies to include general arrangement of landscape elements, including: layout of paving/pathways , plant massing, relationships with existing site features to remain, possible seating. D. Meet with City to Present Concepts: Review Concept Plan studies with City staff via web-conference. Receive input. E. Revise Initial Concept Plan to Reflect Input from Staff: Revise Concept plans and refine plan proposals to reflect potential site layout and development, plant palette, and material choices. F. Meet with City & Stakeholders: Meet on-site with City Staff and select Stakeholders to review revised Concept plans and receive input. Review potential irrigation connections and approach to irrigation system. G. Revise Plan to Reflect Input: Refine plans in response staff and stakeholder comments. Establish irrigation POC and basic irrigation design criteria. H. Prepare Preliminary Cost Estimate: I. Review Estimate with City Staff and Define Final Scope of Improvements and Budget: Meeting via web-conference. Clarify scope for DD Set. J. Prepare 35% DD Set of Construction Documents: K. Deliverables: Concept Plans, Preliminary Cost Estimate, 35% DD set of documents. Plans will be at 22"x34" for full-size and 11"x17" for half-size, scalable at 50%. Submittals will be in pdf format. TASK 2 -CONSTRUCTION DOCUMENTS To prepare Construction Documents and final cost estimates for bidding. City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 16 of 22 A. Prepare 65 % CD 's for Internal Review: Based on the review of the 35% DD set of documents , refine and update CD's to 65% completion . Submit to staff for interim review . Documents to include : Cover Sheet Demolition Plan Layout and Construction Plan (with grades as needed) Construction Details as needed Planting Plan and details Plan and details Technical Specifications B. Prepare 95% CD 's for City Review: Refine the 65% CD set to 95% complete . Submit to cost estimator for pre-final cost estimate. Submit to City fo r final review. C. Prepare Pre -Final Cost Estimate: Prepare pre -final cost estimate . D. Review 95 % CD 's and Cost Estimate with City : Review 95% set of documents and costs with City Staff for final review via web -conference. E. Prepare 100% CD 's: Make final revisions to documents based upon City review and internal coordination . Prepare final documents to City for inclusion in bid package . F. Prepare Final Cost Estimate: Adjust pre-final cost estimate to reflect final revisions for submittal as final estimate of probably construction costs . G . Submit Final Plans , Technical Specs , and Cost Estimate for Bidding : Documents submitted in pdf format for incorporation into bid package , printing, and distribution by City. H. Deliverables : Pdf sets of 65%, 95%, and 100% Construction Documents . Pdf files of Pre-Final and Final Cost Estimates. TASK 3-BID PERIOD AND CONSTRUCTION ADMINISTRATION To assist during the bid period in the selection of a Contractor for the project construction , to assist during the construction period to ensure the design intent is being met, and to prepare as- built documents. A. Attend Pre-Bid Meeting : B. Respond to Contractor Questions and Issue Addenda during Bid Period : Assume up to one addendum will be issued during the bid period . Respond to questions from bidders through the City 's Construction Manager. City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 17 of 22 [/1a•rnl I !. I« f. S1114lc I ra1r ~t-1 lt"Jl.l-2()'(-U9 C. Review Submittals : Review and approve submittals as required by spec ifications. D. Respond to RFl 's: Respond to Requests for Information (RFI) from Contractor as required. E. Issue ASl 's: Issue up to two Architectural Supplemental Information (ASI) requests when simple RFI responses are insufficient. F. Site Visits and Field Reports: Visit site up to three times to review progress of construction at key times as requested by Contractor and Construction Manager. Site visits anticipated to be requested to 1) review general layout of construction ; 2) review layout and operation of irrigation ; and 3) review plant placement. A field observation report will be prepared for each visit. G. Final Review and Punch List: Visit site to conduct final walk through of 95% complete construction and prepare a punch list of items to be completed for final approval of installation . H. Prepare Record Drawings : Prepare reco rd set of "As-Built" drawings from marked up set of documents supplied by Contractor. Record set to be prepared in AutoCAD format for delivery to City . I. Deliverables : Responses to Submittals , RFl 's, and ASl 's as needed . AutoCAD files of As-Built drawings. At the conclusion of the project services , Design Professional will transmit to City a compiled record of the pre-bid project deliverables in electronic PDF format , including meeting notes, design drawings, and cost estimates . City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 18 of 22 [!\g>1PI (lp:; i •of-S111qle f'roir .t-f !Ni'.-,l 20k CJ9] EXHIBIT B SCHEDULE OF PERFORMANCE This Schedule of Performance establishes the milestones for commencement and completion of the Tasks for Basic Services as specified in Exhibit A , Scope of Services. TASK# TASK DESCRIPTION 1 CONCEPT DESIGN/DESIGN DEVELOPMENT 2 CONSTRUCTION DOCUMENTS 3 BID PERIOD AND CONSTRUCTION ADMINISTRATION City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction DURATION 8 weeks after Notice to Proceed for this Task 6 weeks after Notice to Proceed for this Task Up to 32 weeks after Notice to Proceed for this Task Page 19 of 22 EXHIBITC COMPENSATION Capitalized terms which are defined in the Agreement have the same meaning in this Exhibit C. This Exhibit C on Compensation supplements the provisions of Section 4 of the Agreement on Compensation, as further specified in Section 4. 1. BASIC SERVICES BUDGET SCHEDULE The following budget schedule will be used to determine monthly compensation for Basic Services based on the degree of completion, subject to confirmation and agreement by the City, and budget for each listed Task: TASK# TASK DESCRIPTION TASK BUDGET 1 CONCEPT DESIGN/DESIGN DEVELOPMENT $18,175 2 CONSTRUCTION DOCUMENTS $ 14,695 3 BID PERIOD AND CONSTRUCTION $ 10,770 ADMINISTRATION Total for Basic Services: $ 43,640 Design Professional may not bill in excess of the Task Budget amount for any Task without prior written authorization from the City. The City has the discretion, but not the obligation, to reallocate the budgeted amounts for each Task, subject to the not to exceed limit specified in Section 4. D Optional Payment Schedule (applies only if box is checked) The following payment schedule will be used to determine compensation for monthly invoices based on the degree of completion and budget for each listed Task, and, where applicable, separate milestones included within a Task: <modify or expand as needed to conform with the Tasks and, if applicable, add any subtasks or milestones included in Exhibit A and Exhibit B> TASK# TASK (AND MILESTONE) DESCRIPTION 1 2 City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction PERCENT OF TASK BUDGET Page 20 of 22 [Ayr nt-lles I rof-S111qre fJrOJl-t I INAL-2016 09) 3 4 5 6 7 2. HOURLY COMPENSATION FOR ADDITIONAL SERVICES A. Hourly Rate Schedule. The City will compensate the Design Professional for satisfactory performance of duly authorized Additional Services which are subject to hourly billing, based on the hourly rate(s) set forth below, but subject to the compensation limits in Section 4 of the Agreement. The hourly rates are deemed to include all costs including , salary, wages, benefits, taxes, insurance, and the like paid to or on behalf of each individual providing the Services, and are also deemed to include profit, overhead, vehicle, equipment and supply costs and the like. The hourly rates do not include Reimbursable Expenses, which are addressed below and in Section 4 of the Agreement. These hourly rates will remain in effect for the Term of the Agreement unless changed by written amendment to the Agreement. Design Professional Hourly Rates: Principal in Charge Project Manager/Associate Irrigation Designer Cost Estimator $ 225 $ 140 $ 130 $ 140 B. Reimbursable Expenses. The following are allowed Reimbursable Expenses for authorized Additional Services compensated on an hourly basis (time and expenses), subject to the compensation limits in Section 4 of the Agreement: <modify as appropriate> • Necessary subconsultant services • Individual or multiple document reproductions that exceed 50 pages • Drawing or bid set reproductions to the extent authorized by City • Special software required by City specifically for the Project, excluding standard software programs such as Microsoft Office suite applications (i.e. Word, Excel, PowerPoint, Project, etc.), Adobe Acrobat, or standard photo editing programs • Necessary travel expenses to the extent allowed by City policy, with mileage reimbursed per the current IRS standard mileage rate at the time of travel • Safety equipment required by City policy or the Project scope of services City of Cupertino John Northmore Roberts & Associates For Prj # 2017-03 City Hall Turf Reduction Page 21 of 22 • Mass mailing notifications • Special expenses for public meetings, such as refreshments, interpreters, security, valet parking, facility rental, tents or booths, easels , markers, paper, or presentation equipment City of Cupertino John Northmore Roberts & Associates For Prj # 2017 -03 City Hall Turf Reduction Page 22 of 22 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DA TE (MM/O DIYYYY) ~ 9/30 /2 01 6 THIS CERTIFICATE IS ISSUED AS A MATTER 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 policy(ies) must be endorsed . If SUBROGATION JS WAIVED, subject to the terms and conditions of the policy, certain polic i es may require an endorsement. A statement on this certificate does not confer rights to the certificate holder i n lieu of such endorsement(s). PRO DUC ER ~~~~~CT A liyyah Harv e y -~~gNJo ,E xt): (510) 54 8 -8200 I r:i~. NoJ : (5 10) 548-6145 - F idel i t y I n surance Serv i ce a member of Unite d Valley ~t1DA~~ss : ahar v e y@ fide li t y insur a nceserv ice . corn 80 1 A lls ton Way INSURE R(S) AFFORD IN G COVE RAGE I NAIC # B e rkeley CA 947 1 0 IN SU RER A :Arn c o 1 91 0 0 INS URED INSU RE R B :CN A JOHN N R OBE R TS INSU RER C : 2927 NEWBURY STREET SU I TE B INSUR ER D : INS URER E : B E RKE LEY CA 94 7 03-2 5 6 5 INSU RER F : COVERAGES CERTIFICATE NUMBER:CLl 681 5 080 3 3 REVISION NUMBER · TH IS IS TO CERTI FY TH AT THE POLIC IE S OF INSURANC E LIST ED BEL OW HAV E BEEN ISSU ED TO THE INSURED NA MED A BOV E FOR THE POLICY PERIOD INDIC ATED . NOTWITH STAND ING A NY REQU IREM ENT , TERM OR CONDITION OF A NY CONTRAC T OR OTHER DO C UM ENT W ITH RESP ECT TO WHICH TH IS C ERTIFI CA TE MAY BE ISSU ED OR MAY PERTA IN , THE INSUR A NC E A FFORDED BY THE PO LI CIE S DESCR IBED H EREIN IS SUBJECT TO A LL TH E TERM S, EXC LU SION S AND CONDITIONS OF S UCH POLICIE S. LIM ITS SHO W N MAY HAV E BEE N REDUC ED BY PA ID CLA IMS . INSR TYPE OF INSURANC E ;~.~,;i,; l~::.~~I LTR PO LI CY NUMBER . rMM /DD/Y YYY I . rMM/OD/YYYYI . I POLICY EFF I POLI CY EXP I LI MI TS § '°j'""" '"'AAC """'~ EAC H OCCURRENCE I s 1,000,000 A CLA IMS -MADE w OCCUR DAMAG E TO RENTED 3 0 0,000 PREMIS ES (Ea occu rrence! s x ACP7821537691 5 /31 /2016 5 /31 /2017 MED EX P (Any one perso n) s 5,000 PERSONA L & ADV INJ URY s 1 ,000 ,000 ~'L AGGREGATE LI MIT APP LI ES PE R: GENER ALAGGREGATE s 2,000,000 D PR O-n I PR ODUC TS -COM P/OP AGG I s 2,0 00 ,0 0 0 1 _, POLI CY JE CT L___J LOG I OTHE R: I Add'I for pol icy minimu m I s 1 AU TOMOB ILE LIAB ILI TY I I I I COMBINE D SINGLE LIM IT s 1 ,000 ,000 '--r-<Ea acciden t) . l ANY AUTO I BODI LY INJURY (Pe r person) s A ~AL L OWN ED .--; SC HEDULED BO DILY INJURY (Per accide nt) I S ---- I ACP782 1537691 5 /31 /20 1 6 5 /31 /2017 -~AUTOS 1 __ 1 AUTOS ----.~J HIRED AUTOS NON-OWN ED PRO PERTY DAMAG E 's _}(__,AUTOS I (Per accidentl I I I I I s I UMBRE LL A LIAB H OCC UR I I EAC H OCC URR ENC E s p EX CESS LIAB I CLA IMS-MA DE I I AGGR EGATE s I OED I I RE TEN TI ON s s IWORKERS COM PE NSA TI ON I mTUTE I I OTH- AND EMPL OYERS ' LI AB ILI TY ER Y IN I ANY PROP RIET OR/PARTNER /EXECUTI VE O N /A E.L. 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