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17-081 Ninyo & Moore, Inc., Testing ServicesNO. ________ _ FY 17-18 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND NINYO & MOORE, INC. FOR TESTING SERVICES THIS AGREEMENT, for reference dated June 16, 2017, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and NINYO & MOORE, INC., Geoteclmical and Environmental Sciences Consultants, a Corporation, whose address is 1956 Webster Street, Suite 400, Oakland, CA 94612, telephone 510-343-3000, (hereinafter referred to as "C onsultant"), and is made with reference to the following: A. SCOPE OF SERVICES. Contractor shall provide or furnish the following specified services and/or materials: testing and reporting. Services are further described in Exhibit "A". B. TERM. The term of this Agreement shall commence on June 19, 2017, and shall terminate on September 30, 2017, unless terminated earlier as set forth herein. C. COMPENSATION. Consultant shall be compensated for services performed pursuant to this Agreement in the amount set forth below and as described in Exhibit "A" which is attached hereto and incorporated herein by this reference. The total compensation to the Consultant shall not exceed $4,000.00. D . EXHIBITS. The following attached exhibits hereby are made part of this Agreement: ~ D D 1. HOLD HARMLESS: EXHIBIT A-Scope of Services EXHIBIT B-Acknowledgement of Mandated Reporting Requirements, Receipt of Training, and Receipt of Penal Code Statutes. Required for any consultant working with minors. EXHIBIT C-City of Cupertino, Consultant Declaration. Required for any consultant working with minors. GENERAL TERMS AND CONDITIONS Consultant shall, to the fullest extent allowed by law, with respect to all services performed in co1mection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to the performance of this Agreement by Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. In addition to the obligations set forth above, Consultant shall indemnify, defend, and hold the City, its elected and appointed officers, employees, and volunteers, harmless from and against any Claim in which a violation of intellectual property rights, including but not limited to copyright or patent rights, is alleged that arises out of, pertains to, or relates to Consultant's negligence, recklessness or willful misconduct under this Agreement. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. 2. SUBCONTRACTING: Consultant has been retained due to their unique skills and Consultant may not substitute another, assign or transfer any rights or obligations under this Agreement. Unless prior written consent FY 2017/2018 Short Form Agreement less than $5,000 1 from City is obtained, only those people whose names are listed this Agreement shall be u sed in the performance of this Agreement. 3. ASSIGNMENT: Consultant may not assign, transfer, or subcontract this Agreement or any portions thereof, without prior written consent of City. 4. ACKNOWLEDGEMENT OF MANDATED REPORTING REQUIREMENTS AND CONCUSSION PROTOCOLS AND TRAINING: Not Applicable 5. FINGERPRINT & TUBERCULOSIS (TB) CONSULTANT DECLARATION: Not Applicable 6. INSURANCE: On or before the commencement of the term of this Agreement, Consultant shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with the paragraphs below . Such certificates, w hich do not limit Consultant's indemnification, shall also contain substantially the following statement: "S hould any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, Attention: City Manager." It is agreed that Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Consultant shall maintain the following insurance coverage: 1. Workers' Compensation: Statutory coverage as required b y the State of California. ii. Liability: Commercial general liability coverage, in the following minimum limits: 1. Bodily Injury: 2. Property Damage: $5 00,000 each occurrence $1,000,000 aggregate -all other $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. iii. Automotive: Comprehensive automobile liability coverage in the following minimum limits: 1. Bodily Injury: 2. Property Damage: $5 00 ,000 each occurrence $100,000 each occurrence or 3. Combined Single Limit: $5 00 ,0 00 each occurrence iv. Professional Liability: Professional liability insurance which includes coverage for professional acts, errors and omissions of Consultant in the amount of at least $1,000,000. FY 2017/2018 Short Form Agreement, Ni n yo & Moore 2 7. SUBROGATION WAIVER: Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City b y vi rtue of the payment of any loss under such insurance. 8. TERMINATION OF AGREEMENT: In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If Consultant fails to cure the default within the time specified and according to the requirements se t forth in City's written notice of d efault, and in addition to any other remedy available to the City by law, the City Manager may terminate the Agreement b y giving Consultant w ritten notice thereof, which shall be e ffecti ve immediately. The City Manager shall also have the option, at its sole discretion and without cause, of terminating this Agreement b y giving seven (7) calendar days' prior written notice to Consultant as provided herein. Upon receipt of any notice of termination, Consultant shall immediately discontinue performance. 9. NON-DISCRIMINATION: Contractor shall not discriminate against a job applicant, e mployee, City e mployee, or a citizen on the basis of race, color, n a tional origin, ancestry, religion, gender, sexual orientation or other protected class of such person. 10. INTEREST OF CONSULT ANT: -It is understood and agreed that this Agreement is not a contract of employment and, at all times, Consultant shall be deemed to be an independent Consultant and Consultant is not authorized to bind the City to any contracts or other obligations in exec uting this Agreement. Contractor certifies that no one who has or will have any financial inte r est unde r this Agreement is an officer or employee of City. City shall have no right of control as to the manner Consultant performs the services to be p erformed. Nevertheless, City may, at any time, observe the manner in w hich such services are being performed b y the Consultant. Consultant shall comply w ith all applicable Federal, State, and local laws and ordinances including, but not limite d to, unemployment insurance benefits, FICA laws, and the City business license ordinance. 11. PERMITS AND LICENSES: Consultant, at his/h e r sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates, and lic enses including, but not limited to, a City Business License, that may be required in connection w ith the performance of services hereunder. 12. REPORTS AND RECORDS: Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", r e produce d , prepare d or caused to be prepared b y Contractor pursuant to or in connection with thi s Agreement, shall be the exclusive property of City. Contractor shall not copyright any Report required by this Agreement and s hall execute appropriate docume nts to assign to City the copyright to Reports created pursuant to this Agreement. A n y Report, information and data acquired or required by thi s Agreement shall become the property of City, and all publication rights FY 2017/2018 Short Form Agreement, N in yo & Moore 3 are reserved to City. Contractor may retain a copy of any report furnished to the City pursuant to this Agreement. Contractor shall maintain comp lete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement, in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after Contractor receives final payment from City for all services required under this agreement. 13. CHANGES: No changes or variations of any kind are authorized without the written consent of the City. 14. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. Contractor shall obtain a Cupertino Business License and further comply w ith the City's Minimum Wage Ordinance as set forth in Cupertino Municipal Code Chapter 3.37. 15. AGREEMENT COORDINATOR: The Agreement Coordinator and representative for CITY shall be: Gail Seeds, Park Improvement Manager, Recreation & Community Services Department. FY 2017/2018 Short Form Agreement, N in yo & Moore 4 IN WITNESS, WHEREOF, the parties have caused the Agreement to be executed. NINYO & MOORE, INC. By: WILLIAM P. LARKIN Title: SENIOR PROJECT ENVIRONMENTAL SCIENTIST Date: 6 /f 1/ (} FY 2017/2018 Short Form Agreement, N in yo & Moore CITY OF CUPERTINO A Municipal Corporation By: GAIL SEEDS Title: PARK IMPROVEMENT MANAGER Date: APPROVED AS TO FORM: DIRECTOR ATTEST: EXPENDITURE DISTRIBUTION: Account No: 100-63-615 700-702 Amount: $4,000.00 APPROVED AS TO FORM: ~ ·o-:A . ~\- ~ Randolph Stevenson Hom City Attorney 5 EXHIBIT A CONSULT ANT SERVICES TO BE PERFORMED The CONSULT ANT will provide the services noted below. TASK A-1 Consultant will collect soil and material samples at the Community Gardens at McClellan Ranch Preserve to evaluate for potential contaminants. The samples will be collected by Consultant using hand tools or equipment as needed, per applicable protocols. Consultant will collect an anticipated ten soil samples for a sewage screen analysis [E.coli and Enterococcus], and for fecal coliform. Consultant will arrange delivery of samples to the testing laboratory and provide test results to City. Consultant will prepare and provide documentation as needed for chain of custody per any applicable regulatory requirements. TASKA-2 Consultant will prepare a short report including a brief description, brief discussion of the sampling, a summary of the results with a data summary table, figures and photographs as applicable, and an appendix containing the laboratory analy tical report. Consultant will note applicable state or federal standards. Consultant will provide guidance regarding the findings, including relative to continuing gardening activities by the public and relative to consumption of edible plants grown in the setting. This task will be performed the week by June 26 w1less otherwise acceptable to the City . TASKB Ninyo and Moore will provide laboratory testing and results by a certified testing laboratory. Testing for sewage screening will be performed on a 2-day turnaround time. Consultant shall contact City on Jw1e 21 as soon as results are available and provide copies of laboratory findings and discuss interpretation of the findings. Testing for coliform shall be performed on a 5 to 7 day turnarow1d time. Fee Estimate Task A: $2,150.00 Task B: $1,850.00 Total Fee: Not to Exceed $4,000.00 FY 201 7/2018 Sh ort Form Agreem ent, Ni n y o & Moore 6 Client#· 704 NINYOMOOR1 ACORD,,. CERTIFICATE OF LIABILITY INSURANCE I DATE (MM /DD/YYYY) 3/20/2017 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 IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 2~~i~cT Doris A. Chambers Dealey, Renton & Associates r..tJg,Nrro , Extl: 510 465-3090 I r.e~. No l : 510 452-2193 P. 0. Box 12675 !oMl~~ss : dchambers@dealeyrenton.com Oakland, CA 94604-2675 INSURER(S) AFFORDING COVERAGE NAIC# 510 465-3090 -Mandy Guo INSURER A, Travelers Property Casualty Co 25674 INSURED INSURER B , American Automobile Ins. Co. 21849 Ninyo & Moore Geotechnical & INSURER c , Evanston Insurance Company 35378 Environmental Sciences Consultants 1956 Webster Street, Suite 400 Oakland , CA 94612 INSURER D: INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIF Y THAT THE POLICIES OF IN SURANCE LI ST ED BEL OW HAV E BEEN ISS UED TO THE INSUR ED NAM ED ABOV E FOR THE POLICY PERI OD INDIC ATED . NOTWITHS TANDING ANY REQUIR EMENT , TER M OR CON DITION OF ANY CONTRACT OR OT HE R DOCUMENT W ITH RESPE CT TO W HI CH THI S CERT IFI CATE MAY BE ISSUED OR MAY PERTA IN , THE IN SUR ANC E AFF ORD ED BY THE POLICIES DESCRIBED HEREIN IS SUBJ ECT TO ALL THE TERM S, EXC LUSIONS AND CON DIT IONS OF SUC H POLICIES . LI MITS SHOWN MAY HAV E BEEN REDU CED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADD LSUBR ,&BM8MYYi POLICY EXP LIMITS LTR INSR WVD POLIC Y NUMBER I (MM/DD /YYYY) A X COMMERCIAL GENERAL LIABILIT Y X X 6308986R247 10/03/2016 10/03/2017 EACH OCCURRENCE s 1,000,000 ~ D CLA IMS -MADE [!] OCC UR ~~rblf;H9E~~~J.fr?ence\ s 1 000 ,000 ~ Contractual MED EXP (Any one pe rson) s 10,000 ~ OCP PERSONAL & ADV INJURY s 1,000,000 GEN'L AGGREGATE LIM IT APPLIES PER: GENERA L AGGREGATE s 2,000,000 R [!] PRO· D LOC PRODUCTS -COMP/OP AGG s 2,000,000 PO LI CY JE CT OTHE R: s A AUTOMOBILE LIABILITY X X 8108986R247 10/03/2016 10/03/201i COMB INED SINGLE LI MIT s1 ,000,000 1--/Ea accidenl) X ANYAUTO BODILY INJURY (Per person) $ 1---SC HEDULED ALL OWNED BODI LY INJURY (Per accidenl) s 1--AUTOS I--AUTOS X X NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTOS (Pe r acciden t) 1--1-- $ A ~ UMBRELLA LIAB ~ OCCUR X X CUP8986R247 10/03/2016 10/03/201 i EAC H OCCURRENCE s9 000 000 EXCESS LIAB CLA IMS-MADE AGGREGATE s9 000 000 DED I I RE TE NTI ON$ $ B WORKERS COMPENSATION X WZP81038417 05/01/2017 05/01/201 f X ln frnT F I l ~JH-AND EMPLOYERS' LIABILITY Y/N ANY PROPR IETO R/PAR TN ER/EXECUT IVEC!!J E.L. EACH ACC IDENT s1,000,000 OFF ICE R/MEMB ER EXCLUDED? N N /A (Mandatory in NH) E.L. DI SEASE -EA EMP LO YE E s1,000,000 If yes , describe under E.L. DISEASE -PO LI CY LIMIT s1,000,000 DESCRIPTION OF OPERAT IONS below C Professional Liab X MKLV7PL0002608 04/03/2017 10/03/20H $5,000,000 per Claim & Contractor's $5,000,000 Anni Aggr. Pollution Liab. DES CRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101 , Add itional Remarks Schedule , may be attached if more space is required) GENERAL LIABILITY POLICY EXCLUDES CLAIMS ARISING OUT OF THE PERFORMANCE OF PROFESSIONAL SERVICES. REF : ALL OPERATIONS OF THE NAMED INSURED. GENERAL LIABILITY/AUTOMOBILE LIABILITY ADDITIONAL INSURED: City of Cupertino, its City Council , boards and commissions, officers, employees and volunteers . Insurance is primary per policy form . Waiver of Subrogation applies to Commercial General Liability, Automobile Liability and Workers Compensation Coverage. CERTIFICATE HOLDER CANCELLATION City of Cupertino SHOULD ANY OF THE ABOVE DESCRIBED POLIC IES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 10300 Torre Avenue ACCORDANCE WITH THE POLICY PROVISIONS . Cupertino, CA 95014-0000 AUTHORIZED REPRESEN TATIVE I ~~~--- © 1988-2014 ACORD CORPORATION . All rights re served. ACORD 25 (2014/01) 1 of 1 Th e ACORD n ame and logo are registered marks of ACORD #S1967419/M1959743 DAC 6308986R247 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED -WRITTEN CONTRACTS (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART 1. The following is added to SECTION II -WHO IS AN INSURED: Any person or organization that you agree in a "written contract requiring insurance" to include as an additional insured on this Coverage Part, but: a. Only with respect to liability for "bodily injury", "property damage" or "personal injury"; and b. If, and only to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of "your work" to which the "written contract requiring insurance" applies. The person or organization does not qualify as an additional insured with respect to the independent acts or omissions of such person or organization. The insurance provided to such additional insured is limited as follows: c. In the event that the Limits of Insurance of this Coverage Part shown in the Declarations exceed the limits of liability required by the "written contract requiring insurance", the in- surance provided to the additional insured shall be limited to the limits of liability required by that "written contract requiring insurance". This endorsement shall not increase the limits of insurance described in Section Ill -Limits Of Insurance. d. This insurance does not apply to the render- ing of or failure to render any "professional services" or construction management errors or omissions. e. This insurance does not apply to "bodily in- jury" or "property damage" caused by "your work" and included in the "products- completed operations hazard" unless the "written contract requiring insurance" specifi- cally requires you to provide such coverage for that additional insured, and then the insur- ance provided to the additional insured ap - plies only to such "bodily injury" or "property damage" that occurs before the end of the pe- riod of time for which the "written contract re- quiring insurance" requires you to provide such coverage or the end of the policy period, whichever is earlier. 2. The following is added to Paragraph 4.a. of SEC- TION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS: The insurance provided to the additional insured is excess over any valid and collectible "other in- surance", whether primary, excess, contingent or on any other basis, that is available to the addi- tional insured for a loss we cover. However, if you specifically agree in the "written contract requiring insurance" that this insurance provided to the ad- ditional insured under this Coverage Part must apply on a primary basis or a primary and non- contributory basis, this insurance is primary to "other insurance" available to the additional in- sured which covers that person or organization as a named insured for such loss, and we will not share with that "other insurance". But this insur- ance provided to the additional insured still is ex- cess over any valid and collectible "other insur- ance", whether primary, excess, contingent or on any other basis, that is available to the additional insured when that person or organization is an additional insured under any "other insurance". 3. The following is added to SECTION IV -COM- MERCIAL GENERAL LIABILITY CONDITIONS: Duties Of An Additional Insured As a condition of coverage provided to the addi- tional insured: a. The additional insured must give us written notice as soon as practicable of an "occur- rence" or an offense which may result in a claim . To the extent possible , such notice should include : CG D414 04 08 © 2008 The Travelers Companies, Inc . Page 1 of 2 COMMERCIAL GENERAL LIABILITY i. How, when and where the "occurrence" or offense took place; ii. The names and addresses of any injured persons and witnesses; and iii. The nature and location of any injury or damage arising out of the "occurrence" or offense. b. If a claim is made or "suit" is brought against the additional insured, the additional insured must: i. Immediately record the specifics of the claim or "suit" and the date received; and ii. Notify us as soon as practicable. The additional insured must see to it that we receive written notice of the claim or "suit" as soon as practicable. c. The additional insured must immediately send us copies of all legal papers received in con- nection with the claim or "suit", cooperate with us in the investigation or settlement of the claim or defense against the "suit", and oth- erwise comply with all policy conditions. d. The additional insured must tender the de- fense and indemnity of any claim or "suit" to any provider of other insurance which would cover the additional insured for a loss we cover. However, this condition does not affect whether this insurance provided to the addi- tional insured is primary to that other insur- ance available to the additional insured which covers that person or organization as a named insured . 4. The following is added to the DEFINITIONS Sec- tion: "Written contract requiring insurance" means that part of any written contract or agreement under which you are required to include a person or or- ganization as an additional insured on this Cover- age Part, provided that the "bodily injury" and "property damage" occurs and the "personal in- jury" is caused by an offense committed: a. After the signing and execution of the contract or agreement by you; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period. Page 2 of 2 © 2008 The Travelers Companies, Inc . CG D414 04 08 Insured : Ninyo & Moore Geotec hni cal & Policy Number: WZP81038417 Effective Date : 05/01 /2017 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT -CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy . We will not enforce our right against the person or organization named in the Schedule . (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule . The additional premium for this endorsement shall be otherwise due on such remuneration. % of the California workers' compensation premium Person or Organization City of Cupertino 10300 Torre Avenue Cupertino , CA 95014-0000 Form WC 04 03 06 Process Date: SCHEDULE Job Description REF: ALL OPERATIONS OF THE NAMED INSURED. SCHEDULE CONTINUED : City of Cupertino , its City Council , boards and commissions , officers , employees and volunteers . Countersigned by ~ C. • 7 Authorized Representative (1) Printed in U.S.A. Policy Expiration Date: