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17-051 Cotton, Shires and Associates, Inc., Design Professional Services for Regnart Rd and Regnart Creek Damage Investigation
P.O.# ?o <'+. tft(p AGREEMENT BETWEEN THE CITY OF CUPERTINO AND COTTON, SHIRES AND ASSOCIATES, INC. FOR DESIGN PROFESSIONAL SERVICES FOR REGNART ROAD AND REGNART CREEK DAMAGE INVESTIGATION This Agreement for Design Professional Services ("Agreement"), dated A ~Q,\._ l,t 2017, is entered into by and between City of Cupertino , a municipal corporation ("City"), and Cotton, Shires and Associates , Inc. a California corporation ("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 Engineering services ("Services ") required for the City 's Regnart Road and Regnart Creek Damage Investigation ("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 March 8 , 2017 and provided in Exhibit D ("Proposal ") in response to the City 's request for 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 July 31 , 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 Exhibits 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 Page 1 of 22 Cotton , Shires and Associates , Inc. For Regnart Road and Regnart Creek Damage Investigation 8. 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 8, 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 $17,500. Design Professional is not entitled to any payment for Services or expenses in excess of this maximum limit. 8 . Basic Services. City will pay Design Professional $12,500 ("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 $5,000 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 Page 2 of 22 Cotton , Shires and Associates , Inc. For Regnart Road and Regnart Creek Damage Investigation or to the 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 Exhibit 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 Term 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 this Agreement. Design Professional must take appropriate measures to avoid delay of Project completion, including , but not limited to , prompt submission of deliverables 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 Page 3 of 22 Cotton , Shires and Associates , Inc. For Regnart Road and Regnart Creek Damage Investigation 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 , Chad Mosley , 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 John Wallace . If a substitute or replacement DP Project Manager is required for any reason , the City must be notified of the need as soon as possible , Design Professional 's designation of the individual proposed to serve as the substitute or replacement will be subject to the City '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 responsibilities . C. Communication and Coordination. Design Professional is responsible for coordinating the efforts of Design 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 regard ing 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 Page 4 of 22 Cotton , Shires and Associates , Inc . For Regnart Road and Regnart Creek Damage Investigation 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. 0. 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 Page 5 of 22 Cotton , Shires and Associates , Inc . For Regnart Road and Regnart Creek Damage Investigation 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 for 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 Page 6 of 22 Cotton , Shires and Associates , Inc . For Regnart Road and Regnart Cree k Damage Investigation 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 Design 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 purposes normally associated with 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. SUBCONSUL TANTS: 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 Professional 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 (IRCA): 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 indemnify 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 Page 7 of 22 Cotton , Shires and Associates , Inc . For Regnart Road and Regna rt Creek Damage Investigation Professional or Design Professional's employees or 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: Design 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. 8. 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 Page 8 of 22 Cotton, Shires and Associates , Inc. For Regnart Road and Regnart Creek Damage Investigation 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 term i nation 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 Page 9 of 22 Cotton , Shires and Associates , Inc . Fo r Regnart Road and Regnart Cree k Da mage Investigation 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 : Chad Mosley, City Engineer 8. To Design Professional. All notices, demands, requests, or approvals from City to Design Professional must be addressed to Design Professional at: Cotton, Shires and Associates , Inc . 330 Village Lane Los Gatos CA 95030 Attention : John Wallace 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 . 8. 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 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 : City of Cupertino Page 10 of 22 Cotton , Shires and Associates , Inc. For Regnart Road and Regnart Creek Damage Investigation 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 ½ 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 the 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 pursuant to this Agreement must be filed with the Superior Court for the County of Santa Clara , State 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 Page 11 of 22 Cotton , Shires and Associates , Inc . For Regnart Road and Regnart Creek Damage Investigation 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 Page 12 of 22 Cotton , Shires and Associates , Inc. For Regnart Road and Regnart Cre e k Damage Investigation 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 Page 13 of 22 Cotton , Shires and Assoc iates , Inc . For Regnart Road and Regnart Creek Damage Investigation IN WITNESS WHEREOF , the parties have caused the Agreement to be executed . DESIGN PROFESSIONAL 8 ~ciates, Inc . Na me ::,.J c \\-r..J \,.J.~-liACE:. Title]:::(.jl'c,, ~ 6 G:c_~(o\ s.'\ Date ~ -\7 -\7 Tax I.D . No .: 'i1-'2--Z..1'=>B~7 Address : 330 Village Lane Los Gatos CA 95030 CITY OF CUPERTINO A Municipal Corporation By~C,51-- Timm Borden, Director of Public Works Date 11~~~ 7 APPROVED AS TO FORM: ®' Randolph Stevenson Hom, City Attorney ATTEST: ~/ie.6dt~ Contract Amount: $17,500 Account No. : I Ciu · & 2-· M4 'fl)u · 1"D'Z- City of Cupertino Page 14 of 22 Cotton , Shires and Associates , Inc . For Regnart Road and Regnart Creek Damage Investigation EXHIBIT A SCOPE OF SERVICES The requirements for Basic Services are set forth in this Exhibit A , including general requirements and specific Tasks. Geologic and Geotechnical Reconnaissance Investigation A. Base Map Preparation -Generate a reconnaissance-level base map with reference stationing to enable accurate location of identified features. The map will depict Regnart Road, Regnart Creek , primary structures, culverts, bridges , and utility poles. B. Reconnaissance-Level Engineering Geologic Mapping -Map the approximate 1-mile stretch of Regnart Road and document areas of road distress , adverse drainage conditions , culvert conditions, unstable cut slopes , and areas of creek scour that could adversely impact the roadway . Utilize the City LiDAR database to aid in mapping . C. Letter-Report -Generate a letter-report that identifies and prioritizes areas of concern , outlines mitigation concepts and approximate costs , and includes photographs . D. Prepare Conceptual Mitigation Alternatives -Generate conceptual mitigation alternatives for the significant areas of concern . Mitigation alternatives will have sufficient detail to generate approximate construction costs . Generate approximate construction costs . E. Meeting -Meet with the City to provide a summary of findings and to outline conceptual mitigation alternatives. Products The products of the investigation will be a reconnaissance map folio that includes geologic mapping data, pertinent photographs illustrating the site conditions , and a letter-report that identifies areas of concern , mitigation concepts and approximate costs . The map and critical data , including photographs , can also be provided to the City in a GIS format. City of Cupertino Page 15 of 22 Cotton , Shires and Associates , Inc. For Regnart Road and Regnart Creek Damage Invest igation 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 DURATION ANTICIPATED COMPLETION DATE 1 Provide Final Products to City 10 weeks after Notice 6/30/2017 to Proceed for this Task City of Cupertino Page 16 of 22 Cotton, Shires and Associates , Inc. For Regnart Road and Regnart Creek Damage Investigation EXHIBIT C 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 Geologic and Geotechnical Investigation with $12,500 Letter-report , Mapping Data and Photographic Documentation Total for Basic Services : $ ___ ___,;$i;..;1=2""', 5;;..;;0;..::;0 ___ _ 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 . 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 provided in Exhibit C-A 8. 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: • Necessary subconsultant services • Individual or multiple document reproductions that exceed 50 pages • Drawing or bid set reproductions to the extent authorized by City City of Cupertino Page 17 of 22 Cotton , Shires and Associates , Inc . For Regnart Road and Regnart Creek Damage Investigation 11::,x,.r11tj11 v-A I COTTON, SHIRES AND ASSOCIATES, INC. SCHEDULE OF CHARGES, LIMIT A TIO NS AND TERMS FOR PROFESSIONAL SERVICES (Page 1 of 2) January 2017 Personnel Charges Senior Principal Engineer /Geophysicist __________________ _ Prin cipal Geo logist / Engineer ______________________________ _ Supervisin g Geologist / Engineer ___________________________ _ Sen ior Geo log ist /Engineer __________________________________ _ Senior GIS Spec iali st ·-----------------------····-··--·------··· Senior Staff Geologist /Engineer ---···········------------·- Staff Geo lo gis t / Engineer .. ·-----···-----------------------··· Field / Laboratory Technician ___________ -·-·-------·-·------· Technical Illu strating ··-·····-----···----·-----------·-··---··· Clerical / Accounting -----····-·-········-···------------------ Equipment and Supply Charges Inclinometer System ___ ---··. ____ . _. ______ . __________________ .. Piezometer Data Acquis iti on Sys tem ----·······-···-·------ Total Station Surveying Equipment-------···---·-·-----·--- GPS Surveying Equ ipment -------·------------------------··- Nuclear Moisture /Unit We ight Gauge-··------------------ Rope Climbing Safety Equipm ent ----------·-·--···----···-- Multi-Channel Seismograph System and ReMi ---------·· Vehicle Mileage (or Current IRS Approved Rate) ________ _ Aircraft Mileage (or Current IRS Approved Rate)·----···· Photocopying (B&W-Color) ----------------------------·---- Engineering (Large Format) Copier _______________________ _ Computer Assis ted Color Plotting ---------------···-------- Limitations and Terms for Professional Services $285/hr $ 235 /hr $195 /hr $ 175 /hr $165 /hr $ 155 /hr $ 135 /hr $ 115 /hr $ 110 /hr $ 80 /hr $175 /day $ 100 /day $250 /day $350 /day $150/day $ 250 / day $300/day $.54/mi $1.29/n mi $ .20-.so I copy $ .50 /ft 2 $12 /sq. ft . Expert Witness Consultation Charges Expert witness tes timon y for court appearances and binding arbitra ti ons sha ll be ch arged on a da il y basis (minimum one day increments) at a rate of $3,960 per day_ Deposition testimon y sha ll be charged at a rate of $495 per hour (m inimum one hour charge). Preparation time for depositions or cour t appearances sha ll be charged on a tim e-and-expense basis in accordance with the Personnel , Equipmen t, and Expense charges li sted herein. Laboratory Testing and Geophysical Service Charges Laboratory testin g and geophysical services shall be charged on a time- and -m a terials basis in accordance with the Personnel, Equipment, and Expense charges lis ted herein. Laboratory samples shall be stored for 60 days after th e date of final report submittal unless special arrangements are made for longer storage. Expense Charges (Receipted Costs Plus 15 %) Travel expenses including air fare, lodgin g, vehicl e rental, (either actual rec e ipted costs plus 15 % for meals or a subsistence charge of $65 per di e m for overnight stay shall charged in addi ti on to th e lodging cost) • Excavation s ubcontracto rs and expendable field supplies • Reproduction of drawings Film, film d evelopment, and photograph printing • Special fees , permits, insurance, etc. • Co nference ca ll telephone costs • Special mail service (air, electronic, courier, etc.) • Special equipment rental • Special consu ltan t fees e tc . flat be AGREEMENT -This Schedu le of Charges, Limitations and Terms for Professional Services as an a ttachmen t to a signed Proposal or Cli ent Contract co nstitutes an "Agreement" between COTfON, SHIRES AND ASSOC IATES, INC (CSA) and th e Cli ent. Client has authorized commencement of the work under this Agreement by signing the "Approved by " section of the Proposal or Contract. The Agreement is here by incorporated and made part of the Contra ct between th e parties. In considera tion of the mutual Agreemen t set forth herein and inte nding to be legally bound, the parties hereto agree as to the following: In voic in g a nd Payment -Clien t s hall pay CSA compe nsation as outlined in the Proposal or at th e rates determined in the above Schedule of Charges and according to the payment terms below _ Invoices may be pre pared and submitted by CSA on a monthly basis or when the work is completed, at CSA's op tion . Payme nt is due upon receipt and is past due thirty (30) days from date of in voice_ A serv ic e cha rge of 1.5 % per month, or th e maximum amount a llowed by law, will be charged on past due accounts_ Payments by C li e nt will th ereafter be applied first to accrued interest and then to the principal unpaid balance. Any a ttorney fees , court costs, or other costs incurred in collection of delinquent accounts shall be paid by the Cli ent. If payment of in voices is not current, CSA may suspend performing further work a t no liability to CSA. Relationship between CSA and Cli ent -CSA is retained by the Client to investigate and to consult with th e Client regarding the Project, as defined in the Proposal. C li ent shall provide CSA in writing with all information relevan t to th e Project and shall adv ise CSA of any condition known to Client that may affect CSA's performance und er thi s Agreement. CSA's services are for th e benefit of the Client, but Client recognizes that th e extent of th ose services is limited by the time-frame chosen and the funds expended by the Client for the investigation. CSA has no responsibility for the work product of any independent cons ultants required for the Cli ent's Project, nor for comp leteness, ad e quacy, or quality of sa id ind ependent consultants' work, or specia lty work. In formation Provided by Client -CSA and the Clien t shall discuss and agree upon the information needed for rendering of services he reunder. The Client agrees to provid e to CSA all such information as agreed to be necessary. With respect to such information, the C li ent understands and agrees th a t CSA will rely solely upon the C li ent to e nsure the accuracy and completeness thereof, as the Cli en t recogn izes that it is impossible for CSA to assure the accuracy, completeness and sufficiency of such information. Ownership of Documents and Proprietary Informa ti on -This proposa l and a ll documents, including, but not limited to, drawings, specifications, computer disks, re ports, calcu lations, and es timates, prepared by CSA in connection with this Agreement ("CSA Confidential Information") are in struments of service and are intend ed for the sold use of the recipient hereof, and may not, excep t as otherwise described herein, be disclosed , distributed, or d issem inated in any form wi th out th e prior written consent of CSA. The CSA Confidential Information is and shall remain the sole property of CSA. Client may distribute documents generated by CSA in connection with CSA's services under this Agreement to third parties, provided that said thi r d party agrees in wri ting to be bound by the confidentia lit y and owners hip of documents provisions of this Agreement. The terms of thi s Section sha ll survive the te rmination of this Agreement. CSA SCHEDULE OF CHARGES, LIMITATIONS AND TERMS FOR PROFESSIONAL SERVICES (Page 2 of 2) Public Liability --COTTON, SHIRES AND ASSOCIATES, INC. is a California Corporation protected by Worker's Compensation Insurance (and /or Emp loyer's Liability Insurance), and by Public Liability In surance for bodily injury and property damage, and will furnish certificates thereof upon request. We assume the risk of damage to our own supplies and equipment. If your contract or purchase order places greater responsibilities upon us or requires further insurance coverage, we, if spec ifi cally directed by you, wi ll procure additiona l insurance (if procurable ) to protect us at your expense, but we shall not be responsible for property damage from any cause, including fire and explosion, beyond the amounts of coverage of our insurance. Standard of Care and Professional Liability --In performing professional services, CSA shall use that degree of care and sk ill ordinaril y exercised under simi lar circumstances by members of our profess ion at the time the services are performed . No other representation or warran ty, express or implied, is made or intended in this Agreement, by our proposal for consulting services, by our furnishing oral opinion or written reports, or by our inspection or work . However, should we or any of our professional employees be found to have been negligent in the performance of professional services or to have made and breached any express or implied warranty, you agree that the maximum aggregate amount of your recovery against us and/ or said professional employees shall be limited to $50,000 or the amount of the fee paid us for professional services as computed under the SCHEDULE OF CHARGES, whichever amount is greater. Moreover, client agrees to indemnify us against damages in excess of $50,000 or the amount of our fee, whichever amount is greater, arising from suits brought against us by third parties, in connection with our work performed on your project. Notic es --All notices in writing to be given h ereunder by either party to the other party s h all be served by letter or se nt by facsimile. Assignment --Neither this agreement nor the benefits or obligations under this Agreement shall be sold, assigned or transferred by either party to any third parties including subsidiary or affiliated companies without the prior written approval of the other party, with such approval not to be unreasonably wi thheld by ei th er. In the event the approval is given by ei th er for assignment or transfer, such an approval s h a ll not relieve either from any li abili ty and / or responsibility under the Agreement. Termination/Cancellation --Client and CSA will have the ri ght to terminate this Agreement for their convenience by giving ten (10) days prior written notice . After termination, CSA will be reimb ur sed for services rendered and necessary expenses incurred to the termination date upon submission to Client of detailed supporting invoices. The obligations of paragraphs 3, 4, and 6 rema in in effect after termination. Change in Scope of Work --If, during the p e rformance of the work under this Agreement, it is determined that the scope of work has expanded or changed such that additional expenditures are required, the client shall be notified and approval from the client shall be received prior to the performance of the additional services. Dispute Resolution --CSA and Client recognize that disputes arising under this Agreement are best resolved at the working level by the parties directly involved. Both parties are encouraged to be imaginative in designing mechanism and procedures to resolve disputes at this level. Such efforts shall include the referral of any remaining issues in dispute to higher authority within each participating party's organization for resolution. Fai ling resolution of conflicts at the organizational level, CSA and Client agree that any remaining conflic ts arising out of or relating to thi s Agreement shall be submitted to non-binding mediation unless CSA and Client mutually agree otherwise. If the dispute is not reso lved through non-binding mediation, then the parties may take other appropriate action subject to the other terms of this Agreement. Neither party shall hold the other responsible for damages or delay in performance caused by ac ts of God, strikes, lockouts, accidents or other events beyond the reasonable control of the o th er party, its employees or agents. Shou ld litigation or arbi tration occur between the parties relating to the provisions of this Agreement, all litigation or arbitration expenses, collection ex p enses, wih1ess fees, court costs and attorneys' fees reasonably incurred by the prevailing party shall be paid by the non-prevailing party. Governing Law --The validi ty, performance, and construction of this Agreement, and the relationship between Client and CSA shall be governed and interpreted in accordance w ith the s ub stantive laws of California, United States of America, w ith out regard to its cho ice of law rules. This Agreement shall be construed as to its fair and not strictly for or against either party. jobsite Safety -Neither the professional activities of CSA, nor the presence of CSA employees and CSA subconsultants at a construction si te, sha ll relieve the contractor and any other entity of their obligations, duties a nd responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending or coordinating all portions of the Work of construction in accordance with the contract documents and any health of safety precautions required by any regulatory agencies. CSA and its personnel have no au thority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. The Client agrees tha t the general contractor and its various subcon tractors are solely responsible for jobsite safety, and warrants that this intent sha ll be made evid ent where appropria te in the Clien t's agreements with other con tractors. If the Client is a Con tra ctor or Subcontractor on th e Project, the Client a lso agrees that the Client, CSA, and CSA's consul tants sha ll be indemnified and sha ll be made additional insureds under the client's general liabili ty insurance policy; in other cases, the Client agrees to arrange for this indemnification and additional insureds under the General Contractor's general liability insurance policy. Fie ld Exploration --Unless otherwise agreed, the client shall furnish right-of-entry on land for planned field operations. The client shall also provide CSA with lo ca ti ons and depths of buried utilities and structures. CSA shall take responsible precautions to minimize damage to land from use of equipment, but our fee does not include cost of restoration of damage resulting from our exp loration operations. CSA sha ll not be liable for damage or injury arising from damage to subterranean structures (pipes, tanks, telephone cables, etc.) which are not called to our attention and correctly shown on plans furnished to us. Miscellaneous -In the event of any liti gation or proceeding involving CSA and Client, the prevailing party shall be entitled to recover its reasonable legal fees , expert fees , and normal employee rates and associated costs from the non-prevailing party. Failure by C li ent to object to any of the terms and conditions contained in this Agreement before the commencement of services by CSA wi ll be deemed an acceptance of such terms and conditions. Notwi th s tanding anythin g to the contrary in this Agreement, CSA and Cli ent agree that neither party shall be liabl e for any special, indirect, consequential, lost profits, or punitive damages. If any term, condition, or provision of this Agreement is found unenforceable by a court of law or equity, this Agreement shall be construed as though that term, condition, or provision did not exist, and its une nforceability shall have no effect whatsoever on the rest of this Agreement. Mr. Chad Mosley and Roger Lee Department of Public Works CITY OF CUPERTINO 10300 Torre A venue Cupertino, California !EXHIBIT D I March 8, 2017 P5367 SUBJECT: RE: Proposal for Geologic and Geotechnical Investigation Services Geologic and Geotechnical Reconnaissance Investigation Regnart Road, Cupertino Dear Mr. Mosley and Mr. Lee: At your request, Cotton, Shires and Associates, Inc. (CSA) is pleased to provide you with this proposal for professional services. Based upon our recent site reconnaissance with you, it is apparent that the City of Cupertino Public Works Department is interested in evaluating the geologic/geotechnical conditions of an aproximate I-mile s tretch of Regnart Road that parallels Regnart Creek, just upslope from the residential su bdiv ision near Lindy Lane . The recent heavy winter rains have resulted in several areas of concern regarding slope instability and adverse drainage conditions. We propose the fo llowing scope of work, schedule and fee to perform the reconnaissance-level investigation aimed at identifying areas of adverse drainage and/or stability, and generating alternatives for mitigating the adverse conditions: GEOLOGIC AND GEOTECHNICAL RECONNAISSANCE INVESTIGATION A. Base Map Preparation -We will generate a reconnaissance-level base map with reference stationing to enable accurate location of identified features. The map will depict Regnart Road, Regnart Creek, primary structures, culverts, bridges, and utility poles. B. Reconnaissance-Level Engineering Geologic Mapping -We w ill map the approximate I-mile stretch of Re gnart Road and document areas of road distress, adverse drainage conditions, culvert conditions, unstable cutslopes, and areas of creek scour that could adversely impact the roadway . We will utilize the recently acquired City LiDAR database to aid our mapping. Northern California Office 330 Village Lane Los Gatos, CA 95030-7218 (408) 354-5542 • Fax (408) 354-1852 Central California Office 6417 D ogtown Road San Andreas, CA 95249-9640 (209) 736 -42 52 • Fa x (209) 736-1212 www .cottonshires .com Southern California Office 2804 Camino Dos Rios, Suite 201 Thousand Oaks, CA 91320-1170 (805) 375-1050 • Fax (805) 375-1059 Mr. Chad Mosley and Roger Lee Page 2 March 8, 2017 P5367 C. Letter-Report -A short letter-report will be generated that identifies and prioritizes areas of concern, outlines mitigation concepts and approximate costs, and includes photographs. D. Prepare Conceptual Mitigation Alternatives -Conceptual mitigation alternatives will be generated for the significant areas of concern. These mitigation alternatives will have sufficient detail to allow us to generate approximate construction costs. E. Meeting -We will meet with you to provide a summary of our findings and to outline our conceptual mitigation alternatives. Products: The products of our investigation will be a reconnaissance map folio that includes geologic mapping data, pertinent photographs illustrating the site conditions, and a letter-report that identifies areas of concern, mitigation concepts and approximate costs. The map and critical data, including photographs, can also be provided to you in a GIS format). SCHEDULE We are prepared to start within one week of authorization to proceed and anticipate that the geologic/geotechnical reconnaissance investigation would take approximately 8 weeks to complete. FEE We propose to invoice you for our services monthly on a time-and-expenses, not- to-exceed basis in accordance with the attached Schedule of Charges. We estimate that our fees for the Geologic and Geotechnical Reconnaissance Investigation will be $12,500. This not-to-exceed figure includes a 10% City disco unt off our hourly rates (see attachment). AGREEMENT If you agree with the Scope of Work, Schedule, and Fee outlined above, as well as the attached Schedule of Charges, Limitations, and Terms, please sign one copy of this confirming agreement and return it to our office. Receipt of the signed confirming agreement will constitute authorization for us to proceed. COTTON, SHIRES AND ASSOCIATES, INC. Mr. Chad Mosley and Roger Lee Page 3 March 8, 2017 P5367 We look forward to providing you with the professional services discussed above. If you have any questions, or need additional information, please contact us. Very truly yours, COTTON, SHIRES AND ASSOCIATES, INC. John M. Wallace Principal Engineering Geologist, CEG 1923 Reviewed By: Patrick 0. Shires Senior Principal Geotechnical Engineer, GE 770 Approved and Authorized By Date Attachment: CSA Schedule of Charges, Limitations and Terms (2 pages) COTTON, SHIRES AND ASSOCIATES, INC. COTTSHI-01 CERTIFICATE OF LIABILITY INSURANCE 1131/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMA TlVEL Y 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(les) must If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, this certificate does not confer to the certificate holder In lieu of such PRODUCER lOA Insurance Services 3875 Hopyard Road Suite 240 Pleasanton, CA 94588 : INSURED Cotton, Shires and Associates, Inc. 330 Village Lane Los Gatos, CA 95030 COVERAGES CERTIFICATE NUMBER: NAL INSURED provisions or be endorsed. may require an endorsement. A statement on REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS I~¥: TYPE OF INSURANCE I~rffri-I"W9C POUCY NUMBER POUCYEFF POUCYEXP LIMITS A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE 1$ 1,000,000 '--tJ CLAIMS-MADE [!] OCCUR DAMAGE1?E~~~~n~: !$ 1,000,000PSBOO06677 12/04/2016 1210412017-10,000MED EXP (Anv one oerson) $r1,000,0001 c-PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ 2,000,000 POLICY D ~~T D lOC R'LAGGREGATE LIMIT APPLIES PER PRODUCTS· COMP/OP AGG $ 2,000,0001 I OTHER $ IA AUTOMOBILE UABILITY fE~~~~~t~INGlE LIMIT $ 1,000,000 ? PSAOO02275 1210412016 12/04/2017 !BODILY INJURY (Per person) : ANY AUTO $ r-OWNED FSCHEDULEDr-AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ HI NON· EO r~OPERn;t?AMAGE:~ AUI'l&S ONLY f-AUTO~'mL Y er aCCident $ $ f-UMBRELLA UAB HOCCUR EACH OCCURRENCE $ EXCESSLlA8 CLAIMS·MADE AGGREGATE $ OED I J RETENTION $ $ A WORKERS COMPENSATION X I ~.ffTuTE I I ~~-IAND EMPLOYERS' LlA81UTY 0 ANY PROPRIETORIPARTNERIEXECUTIVE PSWOO03773 01/01/2017 01/01/2018 EL EACH ACCIDENT $ 1,000,000 OFFICERIMEMBER EXCLUDED? N/A 1,000,000(Mandatory in NH) EL DISEASE -EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.l. DISEASE -POLICY LIMIT $ 1,000,000 A Professional Liab RDP0027726 02101/2017 02/01/2018 Per Claim 1,000,000 A Professional Liab RDP0027726 02101/2017 02101/2018 Aggregate 2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule. may be attached If more space Is required) RE: Update to Geotech report for McClellan Ranch Environmental Classroom All operations of the Named Insured, Including the aforementioned project. General Liability & Auto Liability: See Additional Insured endorsements attached. GENERAL LIABILITY AND AUTO LIABILITY ADDITIONAL INSUREDS: The City of Cupertino CERTIFICATE HOLDER City of Cupertino Public Works Projects Manager 10300 Torre Avenue ICuoertino. CA 95014 ACORD 25 (2016/03) CANCELLATION © 1988·2015 ACORD CORPORATION. All rights reserved. I I I ! SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE 1~~ The ACORD name and logo are registered marks of ACORD Policy Number: PSB0006677 RLilnsurance Company Named Insured Cotton, Shires and Associates, Inc. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. RLIPack® FOR PROFESSIONALS BLANKET ADDITIONAL INSURED ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM -SECTION II -LIABILITY 1. C. WHO IS AN INSURED is amended to include as an additional insured any person or organization that you agree in a contract or agreement requiring insurance to include as an additional insured on this policy, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused in whole or in part by you or those acting on your behalf: a. In the performance of your ongoing operations; b. In connection with premises owned by or rented 2. The insurance provided to the additional insured by to you; or c. In connection within the hazard". with "prod "your uct-co work" and mpleted o included perations 4. this endorsement is limited as follows: a. This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specifically is added by another endorsement to this policy. b. This insurance does not apply to the rendering of or failure to render any "professional services". c. This endorsement does not increase any of the limits of insurance stated in D. Liability And Medical Expenses Limits of Insurance. 3. The following is added to SECTION III H.2. Other Insurance -COMMON POLICY CONDITIONS (BUT APPLICABLE ONLY TO SECTION II LIABILITY) However, if you specifically agree in a contract or agreement that the insurance provided to an additional insured under this policy must apply on a primary basis, or a primary and non-contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such additional insured as a named insured, and we will not share with that other insurance, provided that: a. The "bodily injury" or "property damage" for which coverage is sought occurs after you have entered into that contract or agreement; or b. The "personal and advertising injury" for which coverage is sought arises out of an offense committed after you have entered into that contract or agreement. The following is added to SECTION III K. 2. Transfer of Rights of Recovery Against Others to Us -COMMON POLICY CONDITIONS (BUT APPLICABLE TO ONL Y TO SEC'nON II LIABILITY) We waive any rights of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal and advertiSing injury" arising out of "your work" performed by you, or on your behalf, under a contract or agreement with that person or organization. We waive these rights only where you have agreed to do so as part of a contract or agreement with such person or organization entered into by you before the "bodily injury" or "property damage" occurs, or the "personal and advertiSing injury" offense is committed. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. PPB 304 0212 Page 1 of 1 Policy Number: PSA0002275 RLI Insurance Company Named Insured: Cotton. Shires and Associates, Inc. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. RLIPack® BUSINESS AUTO ENHANCEMENT SCHEDULE OF COVERAGES ADDRESSED BY THIS ENDORSEMENT A. Broad Form Named Insured B. Employees As Insureds C. Blanket Additional Insured D. Blanket Waiver Of Subrogation E. Employee Hired Autos F. Fellow Employee Coverage G. Auto Loan Lease Gap Coverage H. Glass Repair -Waiver Of Deductible I. Personal Effects Coverage J. Hired Auto Physical Damage Coverage K. Hired Auto Physical Damage -Loss Of Use L. Hired Car -Worldwide Coverage M. Temporary Transportation Expenses N. Amended Bodily Injury Definition -Mental Anguish O. Airbag Coverage P. Amended Insured Contract Definition -Railroad Easement Q. Coverage Extensions -Audio, Visual And Data Electronic Equipment Not Designed Solely For The Production Of Sound R. Notice Of And Knowledge Of Occurrence S. Unintentional Errors Or Omissions T. Towing Coverage PPA 30003 13 1 1 This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM j A. Broad Form Named Insured The following is added to the SECTION II COVERED AUTOS LIABILITY COVERAGE, Para graph A.1. Who Is An Insured Provision: Any business entity newly acquired or formed by you during the policy period, provided you own fifty percent (50%) or more of the business entity and the business entity is not separately insured for Bus iness Auto Coverage. Coverage is extended up to a maximum of one hundred eighty (180) days following the acquisition or formation of the business entity. This provision does not apply to any person or organization for which coverage is excluded by endorsement. B. Employees As Insureds The following is added to the SECTION II COVERED AUTOS LIABILITY COVERAGE, Para graph A.1. Who Is An Insured Provision: Any "employee" of yours is an "insured" while using a covered "auto" you don't own, hire or borrow in your business or your personal affairs. C. Blanket Additional Insured The following is added to the SECTION II COVERED AUTOS LIABILITY COVERAGE, Para graph A.1. Who Is An Insured Provision: Any person or organization that you are required to include as an additional insured on this coverage form in a contract or agreement that is executed by you before the "bodily injury" or "property damage" occurs is an "insured" for liability coverage, but only for damages to which this insurance applies and only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured provision contained in SECTION II COVERED AUTOS LIABILITY COVERAGE. The insurance provided to the additional insured will be on a primary and non-contributory basis to the additional insured's own business auto coverage if you are required to do so in a contract or agreement that is executed by you before the "bodily injury" or "property damage" occurs. D. Blanket Waiver Of Subrogation The following is added to the SECTION IV -BUSI NESS AUTO CONDITIONS, A. Loss Conditions, 5. Transfer Of Rights Of Recovery Against Others To Us: We waive any right of recovery we may have against any person or organization to the extent required of you by a contract executed prior to any "accident" or PPA 300 0313 "loss", provided that the "accident" or "loss" arises out of the operations contemplated by such contract. The waiver applies only to the person or organization deSignated in such contract. E. Employee Hired Autos 1. The following is added to the SECTION II COVERED AUTOS LIABILITY COVERAGE, Paragraph A.1. Who Is An Insured Provision: An "employee" of yours is an "insured" while operating an "auto" hired or rented under a contract or agreement in that "employee's" name, with your permission, while performing duties related to the conduct of your business. 2. Changes In General Conditions: Paragraph 5.b. of the Other Insurance Con dition in the BUSINESS AUTO CONDITIONS is deleted and replaced with the following: b. For Hired Auto Physical Damage Coverage, the following are deemed to be covered "autos" you own: (1) Any covered "auto" you lease, hire, rent or borrow; and (2) Any covered "auto" hired or rented by your "employee" under a contract in that individual "employee's" name, with your permission, while performing duties related to the conduct of your business. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". F. Fellow Employee Coverage SECTION II -COVERED AUTOS LIABILITY COVERAGE, Exclusion B.5. does not apply if you have workers compensation insurance in-force covering all of your employees. G. Auto Loan Lease Gap Coverage SECTION III -PHYSICAL DAMAGE COVERAGE, C. Limit Of Insurance, is amended by the addition of the following: In the event of a total "loss" to a covered "auto" shown in the Schedule of Declarations, we will pay any unpaid amount due on the lease or loan for a covered "auto", less: 1. The amount paid under the PHYSICAL DAMAGE COVERAGE section of the policy; and 2. Any: a. Overdue lease/loan payments at the time of the "loss";