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17-108 Bartos Architecture, Design Professional Services for the Blackberry Farm Concession Stand ProjectP.O.# io,G----\'7 1 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND BARTOS ARCHITECTURE FOR DESIGN PROFESSIONAL SERVICES FOR THE BLACKBERRY FARM CONCESSION STAND PROJECT This Agreement for Design Professional Services ("Agreement"), dated March 15, 2011, is entered into by and between City of Cupertino, a municipal corporation ("City"), and BARTOS ARCHITECTURE, a 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 architectural services ("Services ") required for the City's Blackberry Farm Concession Stand Project ("Project"). C. Design Professional represents that it is duly licensed in good standing by the State of California to perform such Services and has submitted a proposal, dated March 13, 2017 ("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 , 2011, 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 Bartos Architecture For the Blackberry Farm Concession Stand Project Page 1 of 18 [Agrmt-Des Prof-Single Project-FINAL-2016 09] B. Additional Services. City may request , at any time during the Term of this Agreement , that Design Professional provide additional services related to the Project , which are not already encompassed , expressly or implicitly, in this Agreement, Exhibit A or the Proposal ("Additional Services "). Any Additional Services must be authorized in writing by City . Design Professional will not be entitled to compensation for Additional Services provided without or prior to the City's written authorization . Duly authorized Additional Services are subject to all of the provisions that apply to Basic Services under this Agreement , except and only to the extent otherwise specified . All references to "Services " include Basic Services and any authorized Additional Services. 3. SCHEDULE : All Services must be provided within the times specified in Exhibit B , Schedule of Performance, attached hereto and incorporated herein. Design Professional must promptly notify the City of any actual or potential delay in providing the Services as scheduled to afford the City adequate opportunity to address or mitigate the delay if possible . Design Professional must begin each separate Task included in Basic Services upon receipt from City of a notice to proceed ("Notice to Proceed ") for that Task, and must complete the Task within the time specified in Exhibit B. 4. COMPENSATION: A. Maximum Compensation . The cumulative total payment to Design Professional for Bas ic Services, Additional Services and expenses under this Agreement may not exceed $ 6,937.50. Design Professional is not entitled to any payment for Services or expenses in excess of this maximum limit. B. Basic Services . City will pay Design Professional $ 6,937 .50 ("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 C ity 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$ Q 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 reimburse ment for in house copying, printing, fa xes , telephone charges, employee overtime , or travel to City 's offices City of Cupertino Bartos Arch itectu re For the Blackberry Farm Con ce ssion Stand Project Page 2 of 18 [.l\grmt-Des Prof-Single Project-FINAL-2016 .09) 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. ST AND ARD 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 Bartos Architecture For the Blackberry Farm Concession Stand Project Page 3 of 18 [Agrml-Des Prof-Single Project-FINAL-2016 09] 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, Alex Acenas, Public Works Project Manager, 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 Mark Bartos, AIA. 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 Profess ional must also coordinate its Services to the extent reasonably possible, with other City employees or consultants assigned to the Project. Design Professional is responsible for ensuring that the City Project Manager is regularly updated as to the progress or status of the Services, including, but not limited to , participation in meetings or compliance with reporting requirements specified in Exhibit A. Design Professional has an affirmative obligation to promptly notify the City Project Manager of any significant problems or concerns as they arise in order to enable timely resolution or mitigation of any such problems. Design Professional must promptly respond to the City Project Manager's inquiries regarding the Services. 9. HOLD HARMLESS: A. Indemnity Obligations Subject to Civil Code Section 2782.8. Design Professional will, to the fullest extent allowed by law, with respect to all Services performed in connection with the Agreement, indemnify, defend, and hold harmless the City a nd 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 aga inst City of Cupertino Bartos Architecture For the Blackb erry Farm Concession Stand Proje ct Page 4 of 18 [Agrmt-Des Prof-Single Proiect-FINAL-2016.09) any of them, including any injury to or death of any person or damage to property or other liability of any nature ( collectively, "Liability"), that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Design Professional or Design Professional's employees, officers, officials, agents or subconsultants. Such costs and expenses shall include reasonable attorney fees for legal counsel of City's choice, expert fees and all other costs and fees of litigation . Design Professional is not obligated under this Agreement to indemnify City to the extent that any Liability is caused by the sole or active negligence or willful misconduct of any of the Indemnified Parties. In addition to its indemnity obligations, Design Professional will provide its immediate and active cooperation and assistance to the City, at no additional cost to the City, in analyzing, defending, and resolving such Liability. B. Claims For Other Liability. For all liabilities other than those included within paragraph (A) above, Design Professional will, to the fullest extent allowed by law, indemnify, defend, and hold harmless the Indemnified Parties against any and all liability, claims, actions, causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage to property or other liability of any nature, that arise out of, pertain to, or relate to the performance of this Agreement by Design Professional or Design Professional's employees, officers, officials , agents or subconsultants . Such costs and expenses shall include reasonable attorney fees for legal counsel of City's choice, expert fees and all other costs and fees of litigation. Design Professional will not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of the Indemnified Parties. C. Claims Involving Intellectual Property. In addition to the obligations set forth in paragraphs (A) and (B) above, Design Professional will indemnify, defend, and hold the Indemnified Parties harmless from and against any claim in which an alleged violation of intellectual property rights, including but not limited to copyright or patent rights, arises out of, pertains to, or relates to Design Professional 's negligence, recklessness or willful misconduct under this Agreement. Such costs and expenses will include reasonable attorney fees for legal counsel of City's choice, expert fees and all other costs and fees of litigation. D. Survival. The requirements of this section survive expiration or termination of this Agreement. 10. INSURANCE: On or before the commencement of the Term of this Agreement, Design Professional must furnish City with certificates showing the type, amount, effective dates and dates of expiration of insurance coverage required in this section. Such certificates, which do not limit Design Professional's indemnification obligations, must also contain substantially the following statement: "If any of the above insurance covered by this certificate is canceled before the expiration date thereof, the insurer affording coverage will provide 30 days advance written notice to the City of Cupertino, Attention: City Manager." Design Professional will maintain in force at all times during the performance of this Agreement all insurance coverage required by this Agreement with an insurance company that is acceptable to City and authorized to do insurance business in the State of California. Design Professional must also submit endorsements with the certificates naming the City as additional insured in relation to the commercial general liability and commercial automobile liability policies, as further specified below. City of Cupertino Bartos Architecture For the Blackberry Farm Concession Stand Project Page 5 of 18 [Agrmt-Des Prof-Single Project-FINAL-2016.09] 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 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 City of Cupertino Bartos Architecture For the Blackberry Farm Concession Stand Project Page 6 of 18 [Agrml-Ob5 Prof-S1ngie ProJect-FINAL-2016 09] 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. SUBCONSULTANTS: Unless prior written consent from City is obtained, only those individuals and subconsultants whose names are included in this Agreement, including the Exhibits hereto, may provide Services under this Agreement. Design 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 Professional or Design Professional's employees or subconsultants on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, City of Cupertino Bartos Architecture For the Blackberry Farm Concession Stand Project Page 7 of 18 [Agrmt-Des Prof-Single Project-FINAL-2016.09] 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. B. Copyright. To the extent permitted by Title 17 of U.S. Code, all Work Product prepared or created under this Agreement is deemed works for hire and all copyrights in such Work Product will be the property of City. In the event that it is ever determined that any Work Product prepared or created by Design Professional or any subconsultant under this Agreement are not works for hire under federal law , Design Professional hereby assigns to City all copyrights to such Work Product when and as created . Subject to City's prior written approval, Design Professional may retain and use copies of such Work Product for reference and as documentation of its experience and capabilities and in its promotional materials. With respect to Design Professional's standard details, Design Professional may retain the copyright, but grants to City a perpetual non-exclusive license to use such details in connection with the Services. City of Cupertino Bartos Architecture For the Blackberry Farm Concession Stand Project Page 8 of 18 [Agrml-Dt;s Prof-Singie ProJecl-FINAL-2016 09] C. Patents and Licenses. Design Professional must pay any and all royalties or license fees required for authorized use of any third party intellectual property, including, but not limited to , patented, trademarked, or copyrighted intellectual property that it selects for incorporation into the Services or Work Product provided under this Agreement. D. Re-Use of Work Product. Without limiting any other City right to any of the Work Product prepared or created by Design Professional or its subconsultants, and subject to the limitations of law, all Work Product prepared under this Agreement may be used or modified by the City or its authorized agents in execution or implementation of: 1. The Services for which Design Professional was hired; 2 . Completion of the Services by others; 3. Subsequent additions to the Services; and/or 4. Other City projects. E. Deliverables and Format. Electronic and hard copies of Design Professional's Work Product will constitute the Project deliverables . Plans must be in CAD and PDF formats, and unless otherwise specified, other documents must be in Microsoft Office applications and PDF formats. All written Work Product required to be provided by this Agreement (other than large -scale architectural plans and similar items) must be printed on recycled paper and copied on both sides of the paper except for one original, which must be single-sided . 18. RECORDS: Design Professional must maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by the City that relate to the performance of Services under this Agreement. Design Professional must maintain adequate records of Services provided in sufficient detail to permit an evaluation of the Services. All such records must be maintained in accordance with generally accepted accounting principles and must be clearly identified and readily accessible . Design Professional must provide free access to such books and records to the City or its agents at all times during Design Professional 's normal business hours. Design Professional must give the City or its agents the right to examine and audit those items, and to make transcripts or copies as necessary , and to inspect all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, must be kept separate from other documents and records which are unrelated to this Agreement and must be maintained for a period of three years after receipt of final payment from the City. If supplemental examination or audit of the records is necessary due to concerns raised by City 's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Design Professional must reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. The requirements of this section survive expiration or termination of this Agreement. 19. NOTICES: All notices, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally; or on the second business day City of Cupertino Bartos Architecture For the Blackberry Farm Concession Stand Project Page 9 of 18 [l\grml-Des Prof-Single Project-FINAL-2016 09] 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 Attention: Alex Acenas. PW Project Manager 10300 Torre Ave. Cupertino CA 95014 B. To Design Professional. All notices, demands, requests, or approvals from City to Design Professional must be addressed to Design Professional at: <complete with name, address, and contact person for Design Professional> Bartos Architecture Attention: Mark Bartos, AIA 1730 S. Amphlett Blvd., Suite 225 San Mateo, CA 94402 20. TERMINATION: A. Termination for Convenience. City may, at any time, acting in its sole discretion and without cause , terminate this Agreement for convenience by giving written notice to Design Professional at least seven days before the effective date of the termination. If the Agreement is terminated pursuant to this paragraph, the City will compensate Design Professional for all Services satisfactorily performed prior to the effective date and time of the termination, in accordance with this Agreement. B. Termination for Cause. If Design Professional fails or refuses to perform any of its duties under this Agreement at the time and in the manner required, Design Professional will be deemed in default of this Agreement. If the default is not cured or diligently attempted to be cured by Design Professional within the time specified in the City's written notice of default, or if the Design Professional has otherwise materially breached the Agreement, the City may terminate the Agreement for cause by giving written notice to Design Professional at least seven days before the effective date of the termination, unless otherwise specified in the written notice of default. C. Duties upon Termination. If the Agreement is terminated, whether for convenience or cause, within seven days of the effective date of the termination, Design Professional must promptly deliver to City copies of all Work Product, deliverables, or documents prepared by Design Professional under this Agreement , including both print and electronic versions. Full compliance with this requirement is a condition precedent to final payment following termination. This paragraph survives termination of the Agreement. 21. LEGAL REQUIREMENTS: Design Professional must comply with all applicable local, state or federal laws, rules and regulations , and all ordinances, rules and regulations enacted or issued by City. In addition , if City of Cupertino Bartos Architecture For the Blackberry Farm Concession Stand Project Page 10 of 18 [Agrmt-Des Prof Single ProJect FIN/il-2016.09] any of the Services provided under this Agreement are subject to prevailing wage requirements under Labor Code Section 1720 et seq ., the following provisions apply to those Services: A. Prevailing Wages. To the extent applicable, Design Professional must comply with the City 's Labor Compliance Program and all other requirements set forth in Labor Code section 1770 et seq . B. Working Day. To the extent applicable, Design Professional must comply with California Labor Code Section 1810, et seq . which provides that work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week , must be compensated as overtime, at not less than 1 % times the basic rate of pay . C. Payroll Records. To the extent applicable, Design Professional must comply with California Labor Code Section 1776 which requires certified payroll records be maintained with the name, address, social security number, work classification, straight time and overtime hours worked each day and week , and the actual per diem wages paid to each journeyman, apprentice , worker, or other employee employed by him or her in connection with this Agreement. The payroll records must be made available for inspection as provided in California Labor Code Section 1776. D. Apprentices. To 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 ex piration 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 Bartos Architecture For the Blackberry Farm Conces s ion Stand Proj ect Page 11 of 18 [Agrmt-Des Prof-Single Project-FINAL-2016.09] 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 Bartos Architecture For the Blackberry Farm Concession Stand Project Page 12 of 18 [Agrmt-Des Prof-Single f"Jroject-FINAL-2016.09] 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 Bartos Architecture For th e Blackberry Farm Concession Stand Project Page 13 of 18 [Agrnit-Des Prof-Single Project-FINAL-2016.09] IN WITNESS WHEREOF, the parties have caused the Agreement to be executed . DESIGN PROFESSIONAL Date 1 I" J t-9 \1 Tax I.D. No.: t..~ -1-,, 0? S>Co Address: 1730 S. Amphlett Blvd., Ste. 225 San Mateo, CA 94402 CITY OF CUPERTINO A Municipal Corporation Date 1""/J 0 ffel t: I I APPROVED AS TO FORM: ~Randolph Stevenson Hom, City Attorney ATTEST: City of Cupertino Bartos Architecture Grace Schmidt, City Clerk 7 r--2{p 7 7 Contract Amount: $6,937.50 Account No.: 100-82-806-700-702 yb ~1}J l 9 -101 Page 14 of 18 For the Blackberry Farm Concession Stand Project EXHIBIT A SCOPE OF SERVICES The requirements for Basic Services are set forth in this Exhibit A, including general requirements and specific Tasks . 1. Site reconnaissance 2. Prepare Architectural CAD as-built drawings of the building Floor Plan (including location of plumbing fixtures) Kitchen Equipment Plan (Enlarged Plan -W' scale) Reflected Ceiling Plan (lighting) Power Plan (receptacle and data) Mechanical Plan (registers and location of mechanical units) Finish Schedule City of Cupertino Bartos Architecture Page 15 of 18 For th e Blackberry Farm Conc ession Stand Project [Agrmt-Des Prof-Single Pl'Oject-FINAL-2016 09) EXHIBIT B SCHEDULE OF PERFORMANCE This Schedule of Performance establishes the milestones for commencement and completion of the Tasks for Basic Services as specified in Exhibit A, Scope of Services. TASK# TASK DESCRIPTION 1 Site reconnaissance 2 Prepare Architectural CAD as-builts City of Cupertino Bartos Architecture For the Blackberry Farm Concession Stand Project DURATION 1 week after Notice to Proceed for this Task 3 weeks after Notice to Proceed for this Task Page 16 of 18 IAgrml-Des Prof-Single ProJect-FINAL-2016 09] EXHIBITC COMPENSATION Capitalized terms which are defined in the Agreement have the same meaning in this Exhibit C . This Exhibit C on Compensation supplements the provisions of Section 4 of the Agreement on Compensation, as further specified in Section 4. 1. BASIC SERVICES BUDGET SCHEDULE The following budget schedule will be used to determine monthly compensation for Basic Services based on the degree of completion, subject to confirmation and agreement by the City, and budget for each listed Task: TASK# TASK DESCRIPTION TASK BUDGET 1 Site reconnaissance $1,275 .00 2 Prepare Architectural CAD as-builts 5,662 .50 Total for Basic Services: $6,937.50 Design Professional may not bill in excess of the Task Budget amount for any Task without prior written authorization from the City. The City has the discretion, but not the obligation, to reallocate the budgeted amounts for each Task, subject to the not to exceed limit specified in Section 4. D Optional Payment Schedule (applies only if box is checked) The following payment schedule will be used to determine compensation for monthly invoices based on the degree of completion and budget for each listed Task, and, where applicable, separate milestones included within a Task : TASK# TASK (AND MILESTONE) DESCRIPTION PERCENT OF TASK BUDGET 1 2 3 4 2. HOURLY COMPENSATION FOR ADDITIONAL SERVICES City of Cupertino Bartos Architecture For the Blackberry Farm Concession Stand Project Page 17 of 18 [Agrmt-Des Prof-Single Project-FINAL-2016.09] A. Hourly Rate Schedule. The City will compensate the Design Professional for satisfactory performance of duly authorized Additional Services which are subject to hourly billing, based on the hourly rate(s) set forth below, but subject to the compensation limits in Section 4 of the Agreement. The hourly rates are deemed to include all costs including, salary, wages, benefits, taxes, insurance, and the like paid to or on behalf of each individual providing the Services, and are also deemed to include profit, overhead, vehicle, equipment and supply costs and the like. The hourly rates do not include Reimbursable Expenses, which are addressed below and in Section 4 of the Agreement. These hourly rates will remain in effect for the Term of the Agreement unless changed by written amendment to the Agreement. Design Professional Hourly Rates: Principal Project Manager Job Captain Architectural Staff Architectural Drafting Administrative Staff Architectural Interns $175 $150 $ 135 $125 $ 115 $ 75 $ 50 B. Reimbursable Expenses. The following are allowed Reimbursable Expenses for authorized Additional Services compensated on an hourly basis (time and expenses), subject to the compensation limits in Section 4 of the Agreement: <modify as appropriate> • Necessary subconsultant services • Individual or multiple document reproductions that exceed 50 pages • Drawing or bid set reproductions to the extent authorized by City • Special software required by City specifically for the Project, excluding standard software programs such as Microsoft Office suite applications (i.e. Word, Excel, PowerPoint, Project, etc.), Adobe Acrobat, or standard photo editing programs • Necessary travel expenses to the extent allowed by City policy, with mileage reimbursed per the current IRS standard mileage rate at the time of travel • Safety equipment required by City policy or the Project scope of services • Mass mailing notifications • Special expenses for public meetings, such as refreshments, interpreters, security, valet parking, facility rental, tents or booths, easels, markers, paper, or presentation equipment City of Cupertino Bartos Architecture For the Blackberry Farm Concession Stand Project Page 18 of 18 [Agrmt-Des Prof-Sing!e Project-FINAL-2016 09) BARTARC-01 THOMPSONC ACORD' CERTIFICATE OF LIABILITY INSURANCE I DATE (MM /DD/YYYY) ~ 4/20/2017 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 have ADDITIONAL INSURED provisions or 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 License # OE67768 22~!~cT Cassandra Thompson IOA Insurance Services PHONE I FAX 3875 Hopyard Road (A/C, No , Ext): (A/C, No):(925) 416-7869 Suite 240 ioMl~iss, Cassandra.Thompson@ioausa.com Pleasanton, CA 94588 INSURER/SI AFFORDING COVERAGE NAIC# INSURER A : Travelers lndemnitv Comoanv of Connecticut 25682 INSURED INSURER a: Travelers Property Casualty Company of America 25674 Bartos Architecture, Inc. INSURER c ,Atlantic Specialty Insurance Company 27154 1730 So. Amphlett Blvd. Suite 225 INSURER D : San Mateo, CA 94402 INSURER E: INSURER F : COVERAGES CERTIFICATE NUMBER· 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 . INSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS I TR '""'' "n"' I A X COMMERCIAL GENERAL LIABILITY EAC H OCC URREN CE s 2,000,000 f--~ CLA IMS -MAD E [Kl OCC UR ~~~t~U 9E~~~Jir?ence\ 1 ,000,000 6800J492778 04/16/2017 04/16/2018 $ f-- MED EXP IAnv one oerso n\ s 10,000 f-- PERSONA L & ADV INJURY $ 2,000,000 - ~'LAGGREGATE LIM IT APP LIE S PER : GENE RA L AGG RE GAT E s 4,000,000 PO LI CY [Kl m?f D LOC PROD UCTS -COMP/O P AGG s 4,000,000 OTH ER: s A AUTOMOBILE LIABILITY COMB IN ED SING LE LI MI T 2 ,000,000 IEa accident' s - ANY AU TO 6800J492778 04/16/2017 04/16/2018 BO DIL Y INJUR Y /Per oerson) s f--OWN ED -SC HED ULED f--AUTOS ONLY -AUTOS BO DILY INJU RY /Per accident) S X HIRED X NO N-OWNED fte9~fc~J,~t?AMAG E s ~ AUTOS ONLY -AU TOS ONLY $ B X UMBRELLA LIAS M OCC UR EAC H OCC URR EN CE $ 1,000,000 -CUP3E659557 04/16/2017 04/16/2018 1 ,000,000 EXCESS LIAS CLA IM S-MADE AGGR EGATE s OED I X I RETE NTI ON s 10,000 $ B WORKERS COMPENSATION X I ~ff ruTE I I OTH - AND EMPLOYERS ' LIABILITY ER Y/N UB9671Y851 04/16/2017 04/16/2018 1,000,000 ANY PROPRI ET OR /PA RTNER /EXECUTI VE D E.L. EAC H ACC IDENT s OFFI CER/M EM BER EXC LUDED ? N/A 1,000,000 (Mandatory in NH) E.L. DI SEAS E -EA EMPL OY EE S If yes, desc ribe under DESCRIPTI ON OF OPE RATI ONS bel ow E.L. DI SEASE -POLI CY LI MIT s 1,000,000 C Professional Liab. DPL669017 04/16/2017 04/16/2018 Per Claim 2,000,000 C Professional Liab. DPL669017 04/16/2017 04/16/2018 Aggregate 2 ,000 ,000 DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101 , Additional Remar ks Schedule , may be attac hed if more space is required) Re : Service Center Shed No. 3 Improvement Project -10555 Mary Ave., Cupertino, CA All operations of the Named Insured , including the aforementioned project, if any . General Liability: City of Cupertino, its City Council, boards and commissions, officers, employees and volunteers as Additional Insured on Primary & Non-Contributory basis with Waiver of Subrogation included, as required by written contract. Workers' Compensation: Waiver of Subrogation is in favor of City of Cupertino, its City Council, boards and commissions, officers, employees and volunteers, as required by written contract. Hired & Non-Owned Auto Liability includes Blanket Additional Insured and Blanket Waiver of Subrogation . CERTIFICATE HOLDER CANCELLATION 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 City of Cupertino ~~ 10300 Torre Avenue IC11n<>rtinn r.11 95014 ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved . The ACORD name and logo are registered marks of ACORD PO LI C Y NO . 6802945M3 96 COMMERC IAL GENERAL LIABILITY NA M ED IN SURED : BA RTOS A RC HITEC TU RE . INC . THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following : COMMERCIAL GENERAL LIABILITY COVERAGE PART A. The following is added to WHO IS AN INSURED (Section II): Any person or organization that you agree in a "contract or agreement requiring insurance" to in- clude as an additional insured on this Coverage Part, but on ly with respect to liability for "bodily in- jury", "property damage" or "personal injury" caused, in whole or in part , by your acts or omis- sions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing opera- tions; b. In connection with premises owned by or rented to you ; or c. In connection with "your work" and included within the "products-completed operations hazard". Such person or organization does not qualify as an additional insured for "bodi ly injury", "property damage" or "personal injury" for which that per- son or organization has assumed liability in a con- tract or agreement. The insurance provided to such additional insured is limited as follows : d. This insurance does not apply on any basis to any person or organization for which cover - age as an additional insured specifically is added by another endorsement to this Cover- age Part . e. This insurance does not apply to the render- ing of or failure to render any "professional services". f. The limits of insurance afforded to the addi- tional insured shall be the limits which you agreed in that "contract or agreement requir- ing insurance" to provide for that additional insured, or the limits shown in the Declara- tions for this Coverage Part, whichever are less. This endorsement does not increase the limits of insurance stated in the LIMITS OF INSURANCE (Section Ill) for this Coverage Part. B. The following is added to Paragraph a. of 4. Other Insurance in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section IV): However, if you specifically agree in a "contract or agreement requiring insurance" that the insurance provided to an additional insured under this Cov - erage Part must apply on a primary bas is, or a primary and non-contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such addi- tional insured as a named insured, and we will not share with the other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage Is sought occurs; and (2) The "personal injury" for which coverage is sought arises out of an offense committed ; after you have entered into that "contract or agreement requiring insurance". But this insur- ance still is excess over valid and collectible other insurance, whether primary, excess , contingent or on any other basis, that is available to the insured when the insured is an add itional insured under any other insurance . C. The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us in COMMERCIAL GENERAL LIABILITY CON- DITIONS (Section IV): 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 injury" arising out of "your work" performed by you, or on your behalf, under a "contract or agreement requiring insurance" with that person or organization . We waive these rights only where you have agreed to do so as part of the "contract or agreement requiring insur- ance" with such person or organization entered into by you before , and in effect when , the "bodily CG D3 810907 © 2007 The Tra velers Companies, Inc. Page 1 of 2 In cludes the copyrighted material of Insurance Services Office. In c .. with its permission COMMERCIAL GENERAL LIABILITY injury" or "property damage" occurs , or the "per- sonal injury" offense is committed . D. The following definition is added to DEFINITIONS (Section V): "Contract or agreement requiring insurance " means that part of any contract or agreement un - der which you are required to include a person or organization as an additional insured on this Gov- erage Part, provided that the "bodily injury" and "property damage" occurs , and the "personal in- jury" is caused by an offense committed : a. After you have entered into that contract or agreement; 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 © 20 07 Th e Tr avele r s Comp anies, In c. CG D3 81 09 07 Includes the copy righted mat eria l of Insura n ce Se r vices Offi ce , In c., wit h its perm ission