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18-060 Hexagon Transportation Consultants, Traffic Impact Analysis for the De Anza Hotel FIRST AMENDMENT TO AGREEMENT 18-060 BETWEEN THE CITY OF CUPERTINO AND HEXAGON TRANSPORTATION CONSULTANTS FOR TRAFFIC IMPACT ANALYSIS FOR DE AN -A HOTEL This First Amendment to Agreement 18-060 between the City of Cupertino and Hexagon Transportation Consultants, for reference dated 5/15/2019, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and, Hexagon Transportation Consultants a Corporation ("Consultant")whose address is 4 N. Second St., Suite 400, San Jose, CA 95113 and is made with reference to the following: RECITALS: A. On 4/4/2018, an agreement was entered into by and between City and Consultant (hereinafter "Agreement") for traffic impact analysis. The agreement will expire on 6/30/2019. B. The Agreement and the First Amendments are collectively referred to as the "Agreement" unless otherwise indicated. C. City and Consultant desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. Compensation Paragraph 4.1 of the Agreement is modified to read as follows: Maximum Compensation. City will pay Consultant for satisfactory performance of the Basic Services and Additional Services, if approved, a cumulative total amount that will be capped so as not to exceed $38,500 ("Contract Price"), as specified in Exhibit C, Compensation, attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place even if Consultant's actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. Paragraph 4.2 of the Agreement is modified to read as follows: Basic Services. City will pay Consultant$38,500 ("Lump Sum Price") for the complete and satisfactory performance of the Basic Services in accordance with Exhibit C. The Lump Sum Price is inclusive of all time and expenses, including, but not limited to, sub Consultant's costs, materials, supplies, equipment,travel,taxes, overhead and profit. If the Basic Services are not fully completed, Consultant will be compensated a percentage of the Lump Sum Price proportionate to the percentage of Basic Services that were completed to City's reasonable satisfaction. 2. Exhibit A to the Agreement is amended to add the following paragraph after Paragraph 13 under the heading p"Sco e of Services": 14. As of May 9, 2019, City and Consultant have determined that a revision to the traffic study is necessary. This revision will take approximately two weeks to complete, and is estimated to cost$5,000. � i I The first sentence of Exhibit C to the Agreement is replaced with the following: The cost for services rendered under this Agreement will be based on staff time and expenses at our standard hourly 2018 rates,not to exceed$38,500,for work items 1 through 14, as outlined in our Scope of Services. 3. Except as expressly modified herein, all other terms and covenants set forth in.the Agreement shall remain the same and shall be in full force and effect. 1 IN WITNESS WBEREOF,the parties hereto have caused this modification of Agreement to be executed. CONSULTANT CITE'OF CUPE TINO Title / S.St�c. r City Manager RECOMMENDED FOR APPROVAL APPROVED AS TO FORM AA- Titled ,rt. btML e-17\7 City Attorney ATTEST: f�r City Clerk EXPENDITURE DISTRIBUTION PO #2018-523 100-71-701-750-027 Original $33,500 Amendment 41: $5000 Amendment#2: Total: 38,500 FF_ HIXA ON TRANSPORTATION CONSULTANTS, INC. May 9, 2019 Mr. Gian Martire Associate Planner City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Subject: Additional Services Request for the Proposed 5-Story Hotel at 10931 N. De Anza Boulevard in Cupertino, California Dear Mr. Martire: The Transportation Impact Analysis (TIA) prepared for the proposed 156-room hotel at 10931 N. De Anza Boulevard needs to be revised to reflect the new site plan provided to us on April 24, 2019. Some of the changes to the site plan include the addition of a deceleration lane along the project frontage on De Anza Boulevard, revised driveway and drive aisle dimensions, changes to the surface parking, and changes to on-site pedestrian facilities. Any additional changes to the site plan will be identified and addressed in the revised TIA. The City's comments on the TIA dated November 26, 2018, requested the addition of truck turning movement template figures at the south driveway. This task was not included in our original scope of work. Additional Public Works comments are also forthcoming. The revisions to the traffic study will take approximately two weeks to complete. The cost associated with updating the traffic study amounts to $5,000. Your approval of this additional services agreement will bring our total contract value for this project to $38,500. We are ready to sign your standard contract amendment. Please contact me if you have any questions. Thank you. Hexagon Transportation Consultants, Inc. Brian Jackson Senior Associate 4 North Second Street,Suite 400- San Jose,California 95113- phone 408.971.6100- fax 408.971.6102- www.hextrans.com EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICIES AND M[1N`BIUMS REQUIRED 1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location(ISO Form CG 25 03 or 25 04)or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Innsured and shall be (i)the minimum coverage/limits specified in this agreement; or(ii)the broader coverage and maximum limits of coverage of any insurance policy,whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 01 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos)with limits no less than$1,000,000 per accident for bodily injury and property damage. 3. Workers'Compensation:As required by the State of California,with Statutory Limits and Employer's Liability Insurance of no less than$1,000,000 per occurrence for bodily injury or disease. O Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant's profession, with limits no less than $2,000,000 per occurrence or $2,000,000 aggregate. If written on a claims made form: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five(5)years after completion of the Services. c. If coverage is canceled or non-renewed,and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date,the Consultant must purchase"extended reporting" coverage for a minimum of five (5)years after completion of the Services. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: I Exh. D-Insurance Requirements for Design Professionals&Consultants Contracts Form Updated Feb. 2018 1 Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers ("Additional Insureds")are to be covered as additional insureds on Consultant's CGL policy. General Liability coverage can be provided in the form of an endorsement to Consultant's insurance(at least as broad as ISO Form CG 20 10(11/85)or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant's insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment ofpremiums. Waiver of Subrogation Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City's option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide,that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, orbetter. Verification of Coverage Consultant must furnish acceptable insurance certificates and mandatory endorsements(or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time duringthe Contract term. Subconsultants Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant's insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above,City shall be entitled to coverage for the higher insurance limits maintained byConsultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances,with not less than ninety(90)days prior written notice. Exh. D-Insurance Requirements for Design Professionals&Consultants Contracts Form Updated Feb. 2018 2 ACORO0 DATE(MM/DD/YYYY) `� CERTIFICATE OF LIABILITY INSURANCE 5/20/2019 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 CONTACT NAME: Samantha Dutra RC Fischer Co PHONE FAX 1301 Ygnacio Valley Rd#100 IAIC.E-MAINo,L E t 925-627-5467 AIc No:925-932-0962 Walnut Creek CA 94596 ADDRESS: sdutra@rcfischer.com INSURERS)AFFORDING COVERAGE NAIC# INSURER A:Travelers Indemnity of CT 25682 INSURED HEXAG-1 INSURER B:Technology Insurance Company Hexagon Transportation Consultants, Inc. 4 North Second St.,#400 INSURER C:Argonaut Insurance Company San Jose CA 95113 INSURER D:Travelers Indemnity Co. INSURER E:Travelers Pro Cas Co of Amer 25674 INSURER F: COVERAGES CERTIFICATE NUMBER: 1726100210 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 ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCEalap_ POLICY NUMBER MM/DD/YYYY MMIDD/YYYY LIMITS A X COMMERCIAL GENERAL LIABILITY Y Y 6807H532991 3/1/2019 3/1/2020 EACH OCCURRENCE $2,000,000 DAMAGE TO RENTED CLAIMS-MADE FRIOCCUR PREMISES Ea occurrence $1,000,000 MED EXP(Any one person) $5,000 PERSONAL&ADV INJURY $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $4,000,000 POLICY�JJE LOC PRODUCTS-COMP/OP AGG $4,000,000 OTHER: $ D AUTOMOBILE LIABILITY BA9H798647 3/1/2019 3/1/2020 COMBINED SINGLE LIMIT $ Ea accident) 1 000 000 ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS AUTOS IX HIRED AUTOS Ix NON-OWNED PUTOS enaccident) (PROPERTY DAMAGE $ E UMBRELLA LIAB X OCCUR CUP5819P929 3/1/2019 3/1/2020 EACH OCCURRENCE $5,000,000 X EXCESS LIAB CLAIMS-MADE AGGREGATE $5,000,000 DED I X I RETENTION$o $ B WORKERS COMPENSATION TWC3777245 3/1/2019 3/1/2020 X I STATUTE I EERH AND EMPLOYERS'LIABILITY Y I N ANY OFFICER/MEMBEER/EXCLUDED?ECUTIVE NIA E.L.EACH ACCIDENT $1,000,000 (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT 1$1,000,000 C Professional Liability 121AE000328800 3/1/2019 1/1/2020 Each Claim $2,000,000 Claims-Made Form Aggregate $2,000,000 Deductible $5,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached If more space Is required) 30 days'notice of cancellation; 10 days'notice of cancellation for non-payment of premium. 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. City of Cupertino 10300 Torre Avenue Cupertino CA 95014 AUTHORIZED REPRESENTATIVE ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD Named Insured: Hexagon Transportation Consultants, Inc. Policy No. 6807H532991 COMMERCIAL GENERAL LIABILITY 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 I. The following is added to SECTION II —WHO IS h. This insurance does not apply to "bodily AN INSURED: injury" or"property damage" caused by "your Any person or organization that you agree in a completedrl ' d included operations hazard"the unlesscts- the written contract requiring insurance to include as an additional insured on this Coverage Part, but: "written contract requiring insurance" specifically requires you to provide such a. Only with respect to liability for"bodily injury", coverage for that additional insured, and then "property damage" or"personal injury'; and the insurance provided to the additional b. If, and only to the extent that, the injury or insured applies only to such "bodily injury" or damage is caused by acts or omissions of "property damage"that occurs before the end you or your subcontractor in the performance of the period of time for which the "written of "your work" to which the "written contract contract requiring insurance" requires you to requiring insurance" applies, or in connection provide such coverage or the end of the with premises owned by or rented to you, policy period, whichever is earlier. The person or organization does not qualify as an 2. The following is added to Paragraph 4.a. of additional insured: SECTION IV — COMMERCIAL GENERAL c. With respect to the independent acts or LIABILITY CONDITIONS: omissions of such person or organization; or The insurance provided to the additional insured d. For "bodily injury", "property damage" or is excess over any valid and collectible other "personal injury" for which such person or insurance, whether primary, excess, contingent or organization has assumed liability in a on any other basis, that is available to the additional insured for a loss we cover. However, if contract or agreement. you specifically agree in the "written contract The insurance provided to such additional insured requiring insurance" that this insurance provided is limited as follows: to the additional insured under this Coverage Part e. This insurance does not apply on any basis to must apply on a primary basis or a primary and any person or organization for which non-contributory basis, this insurance is primary coverage as an additional insured specifically to other insurance available to the additional is added by another endorsement to this insured which covers that person or organizations Coverage Part. as a named insured for such loss, and we will not share with the other insurance, provided that: f. This insurance does not apply to the rendering of or failure to render any (1) The "bodily injury" or "property damage" for "professional services". which coverage is sought occurs; and g. In the event that the Limits of Insurance of the (2) The "personal injury" for which coverage is Coverage Part shown in the Declarations sought arises out of an offense committed; exceed the limits of liability required by the after you have signed that "written contract "written contract requiring insurance", the requiring insurance". But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary, by that "written contract requiring insurance". excess, contingent or on any other basis, that is This endorsement does not increase the available to the additional insured when that limits of insurance described in Section III — person or organization is an additional insured Limits Of Insurance. under any other insurance. CG D3 81 09 15 ©2015 The Travelers Indemnity Company.All rights reserved. Page 1 of 2 Includes the copyrighted material of Insurance Services Office, Inc.,with its permission Named Insured: Hexagon Transportation Consultants, Inc. COMMERCIAL GENERAL LIABILITY Policy No. 680-71-132991 3. The following is added to Paragraph 8., Transfer 4. The following definition is added to the Of Rights Of Recovery Against Others To Us, DEFINITIONS Section: of SECTION IV — COMMERCIAL GENERAL "Written contract requiring insurance" means that LIABILITY CONDITIONS: part of any written contract under which you are We waive any right of recovery we may have required to include a person or organization as an against any person or organization because of additional insured on this Coverage Part, payments we make for "bodily injury", "property provided that the "bodily injury" and "property damage" or "personal injury" arising out of "your damage" occurs and the "personal injury" is work" performed by you, or on your behalf, done caused by an offense committed: under a written contract requiring insurance with that person or organization. We waive this right a. After you have signed that written contract; only where you have agreed to do so as part of b. While that part of the written contract is in the "written contract requiring insurance" with effect; and such person or organization signed by you before, and in effect when, the "bodily injury" or c. Before the end of the policy period. "property damage" occurs, or the"personal injury' offense is committed. Page 2 of 2 ©2015 The Travelers Indemnity Company.All rights reserved. CG D3 81 09 15 Includes the copyrighted material of Insurance Services Office, Inc.,with its permission WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed.04.84) 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 5%Of the California workers'compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description Any person or organization as required by written contract. This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement Is Issued subsequent to preparation of the policy.) Endorsement Effective 3/1/2019 Policy No. TWC3777245 Endorsement No. 0 Insured Hexagon Transportation Consultants,Inc. Premium$ 8045 Insurance Company Technology Insurance Company,Inc. Countersigned by-- � WC 04 03 06 (Ed.04-84) CITY OF gaDESIGN PROFESSIONAL SERVICES AGREEMENT (SINGLE) WITH HEXAGON TRANSPORTATION CONSULTANTS FOR TRAFFIC CUPERTINO IMPACT ANALYSIS FOR THE DE ANZA HOTEL 1. PARTIES This Agreement is made and entered into as of April 4, 2018 ("Effective Date"), by and between the City of Cupertino, a municipal corporation("City"), and Hexagon Transportation Consultants ("Consultant"), a Corporation for traffic impact analysis for the De Anza Hotel ("Project"). 2. SERVICES 2.1 Basic Services. Consultant agrees to provide the Basic Services for the Project, which are set forth in detail in the Scope of Services, attached here and incorporated as Exhibit A, and as further specified in Consultant's written Proposal as approved by City, except for any provision in the Proposal which conflicts or is inconsistent with this Agreement and the Exhibits hereto, or as otherwise expressly rejected by City. 2.2 Additional Services. City may request at any time during the Contract Time that Consultant provide additional services for the Project,which are not already encompassed, expressly or implicitly, in the Agreement, the Scope of Services, or the Proposal("Additional Services"). Additional Services must be authorized in writing by City and Consultant will not be paid for unauthorized Additional Services rendered. Additional Services are subject to all the provisions applicable to Basic Services, except and only to the extent otherwise specified by City in writing. All references to"Services"in the Agreement include Basic Services and Additional Services,unless otherwise stated in writing. The Services may be divided into separate sequential tasks, as further specified in this Agreement, the Scope of Services, and Consultant's Proposal. Consultant is solely responsible for its errors and omissions and those of its subconsultants, and must promptly correct them at its sole expense. Consultant must take appropriate measures to avoid or mitigate any delay, liability, and costs resulting from its errors or omissions. 3. TIME OF PERFORMANCE 3.1 Term.This Agreement begins on the Effective Date and ends on June 30, 2019 , unless terminated earlier as provided herein("Contract Time"). 3.2 Schedule of Performance. All Services must be provided within the times specified in Exhibit B, Schedule of Performance, attached and incorporated here. Consultant must promptly notify City of any actual or potential delay in providing the Services as scheduled to afford the Parties adequate opportunity to address or mitigate delays. If the Services are divided by tasks, Consultant must begin work on each separate task upon receiving City's Notice to Proceed ("NTO"), and must complete each task within the time specified in Exhibit B. Project De Anza Hotel Design Professional Agreement(single)/Rev.Dec. 2017 Page 1 of 10 3.3 Time is of the essence for the performance of all the Services. Consultant must have sufficient time,resources, and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Consultant for satisfactory performance of the Basic Services and Additional Services, if approved, a cumulative total amount that will be capped so as not to exceed$33500 ("Contract Price"), as specified in Exhibit C, Compensation, attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place even if Consultant's actual costs exceed the capped amount.No extra work or payment is permitted in excess of the Contract Price. 4.2 Basic Services. City will pay Consultant$33500 ("Lump Sum Price") for the complete and satisfactory performance of the Basic Services in accordance with Exhibit C. The Lump Sum Price is inclusive of all time and expenses, including, but not limited to, subConsultant's costs,materials, supplies, equipment, travel, taxes, overhead and profit. If the Basic Services are not fully completed, Consultant will be compensated a percentage of the Lump Sum Price proportionate to the percentage of Basic Services that were completed to City's reasonable satisfaction. 4.3 Additional Services. City has the discretion, but not the obligation, to authorize Additional Services up to an amount not to exceed$ . Additional Services provided to City's reasonable satisfaction will be compensated on a lump sum basis or based on time and expenses, in accordance will the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. If paid on an hourly basis, Consultant will be compensated for actual costs only of normal business expenses and overhead, with no markup or surcharge("Reimbursable Expenses"). Consultant will not be entitled to reimbursement for copying,printing, faxes, telephone charges, employee overtime, or travel to City offices or to the Project site. 4.4 Invoices and Payments. Monthly invoices must describe the Services completed and the amount due for the preceding month. City will pay Consultant within 30 days following receipt of a properly submitted and approved invoice for Services. 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 specified in Exhibit C. City will notify Consultant in writing of any disagreements with the invoice or the stated percentage of completion of tasks. If the disagreement is unresolved, City will pay Consultant only for the undisputed portion of the Services. Disputed amounts shall be subject to the Dispute Resolution provision of this Agreement. a. Time and Expenses. For Additional Services provided on an hourly basis, each invoice must also include, for each day of Services provided: (i) name and title of each person providing Services; (ii) a succinct summary of the Services performed by each person; (iii) the time spent per person, in 30 minute increments; (iv)the hourly billing rate or Sub- Consultant charge and payment due; and (v) an itemized list with amounts and explanation for all permitted reimbursable expenses. Project De Anza Hotel Design Professional Agreement(single)/Rev.Dec.2017 Page 2 of 10 b. 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 Contract Time. Each invoice must attach legible, dated receipts for Reimbursable Expenses. 5. INDEPENDENT CONTRACTOR 5.1 Status. Consultant is an independent Consultant and not an employee,partner, or joint venture of the City. Consultant is solely responsible for the means and methods of performing the Services and shall exercise full control over the employment, direction, compensation and discharge of all persons assisting Consultant in performing the Services. Consultant is not entitled to health benefits, worker's compensation, retirement, or any City benefit. 5.2 Qualifications and Standard of Care. Consultant represents on behalf of itself and its subConsultants that they have the qualifications and skills to perform the Services in a competent and professional manner, as exercised by design professionals performing similar services in the San Francisco Bay Area. Services may only be performed by qualified and experienced personnel or subconsultants who are not employed by City and do not have any contractual relationship with City excepting this Agreement. All Services must be performed as specified to City's reasonable satisfaction. 5.3 Permits and Licenses. Consultant warrants on behalf of itself and any subConsultants that they are properly licensed, registered, and/or certified to perform the Services, as required by law, and that they have procured a valid City Business License. 5.4 SubConsultants. Unless prior written approval from City is obtained, only Consultant's employees and subConsultants whose names are included in this Agreement and incorporated Exhibits may provide Services under this Agreement. Consultant must require all subConsultants to furnish proof of insurance for workers' compensation, commercial liability, auto, and professional liability in reasonable conformity to the insurance required of Consultant. The terms and conditions of this Agreement shall be binding on all subConsultants relative to the portion of their work. 5.5 Tools, Materials and Equipment. Consultant will supply and shall be responsible for all tools, materials and equipment required to perform the Services under this Agreement. 5.6 Payment of Taxes. Consultant must pay income taxes on the money earned under this Agreement. Upon City's request, Consultant will provide proof of payment and will indemnify City for any violations pursuant to the indemnity provision of this Agreement. 5.7 Errors and Omissions. Consultant is solely responsible for its errors and omissions and those of its SubConsultants, and must take prompt measures to avoid, mitigate, and correct them at its sole expense. 6. PROPRIETARY/CONFIDENTIAL INFORMATION During the Contract Time Consultant may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details,the disclosure of which to third parties may be damaging to City. Consultant shall hold in confidence all City information and use Project De Anza Hotel Design Professional Agreement(single)/Rev.Dec.2017 Page 3 of 10 it only to perform this Agreement. Consultant shall exercise the same standard of care to protect City information as a reasonably prudent Consultant would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Subject to City meeting its payment obligations for the Services, any interest (including copyright interests) of Consultant in any product, memoranda, study, report,map,plan, drawing, specification, data,record, document, or other information or work, in any medium,prepared by Consultant under this Agreement ("Work Product"), will be the exclusive property of the City and shall not be shown to a third-party without prior written approval by City 7.2 Copyright. To the extent permitted by Title 17 of U.S. Code, all copyrights to the Work Product prepared/created by Consultant and its SubConsultants and all copyrights in such Work Product shall constitute City property. If it is determined under federal law that the Work Product is not"works for hire", Consultant and SubConsultants hereby assign to City all copyrights to the Work Product when and as created. Consultant may retain copyrights to its standard details, but hereby grants City a perpetual, non-exclusive license to use such details. 7.3 Patents and Licenses. Consultant must pay 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 if incorporated into the Services or Work Product of this Agreement. 7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City may use or modify the Work Product of Consultant and its SubConsultants to execute or implement any of the following, but Consultant shall not be responsible or liable for City's re-use of Work Product: (a) For work related to the original Services for which Consultant was hired; (b) To complete the original Services with City personnel, agents or other Consultants; (c) To make subsequent additions to the original Services; and/or (d) For other City projects. 7.5 Deliverables and Format. Electronic and hard copies of the Work Product constitute part of the Deliverables required under this Agreement, which shall be provided to City on recycled paper and copied on both sides, except for one single-sided original. Large-scale architectural plans and similar items must be in CAD and PDF formats, and unless otherwise specified, other documents must be in Microsoft Office applications and PDF formats. 8. RECORDS 8.1 Consultant must maintain complete, accurate, and detailed accounting records relating to the Services and Compensation, in accordance with generally accepted accounting principles and procedures. The records must include detailed information about Consultant's performance, benchmarks and deliverables. The records and supporting documents must be kept separate from other files and maintained for a period of four years from the date of City's final payment. 8.2 Consultant will provide City full access to Consultant's books and records for review and audit, to make transcripts or copies, and to conduct a preliminary examination of all the work, data, documents,proceedings, and activities related to this Agreement. If a supplemental examination or Project De Anza Hotel Design Professional Agreement(single)/Rev.Dec.2017 Page 4 of 10 audit of Consultant's records discloses non-compliance with appropriate internal financial controls, a contract breach, or a failure to act in good faith, City will be entitled to recover from Consultant the costs of the supplemental examination. If this is a lump sum fee Agreement, City will be provided access to records of reimbursable expenses and the instruments of service/deliverables for review and audit. This Section survives the expiration/termination of this Agreement. 9. ASSIGNMENT Consultant shall not assign, sublease,hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Consultant as a legal entity will be considered an Assignment subject to City approval, which shall not be unreasonably withheld. For purposes of this provision, control means 50% or more of the voting power of the business entity. This Agreement binds Consultant, its heirs, successors and assignees. 10. PUBLICITY/SIGNS Any publicity generated by Consultant for the project under this Agreement, during the term of this Agreement and for one year thereafter,will reference the City's contributions in making the project possible.The words"City of Cupertino"will be displayed in all pieces of publicity, including flyers, press releases,posters, brochures,public service announcements, interviews and newspaper articles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Agreement, without prior written approval from the City. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law and except for losses caused by the sole or active negligence or willful misconduct of City personnel, Consultant agrees to indemnify, defend, and hold harmless the City, its City Council,boards and commissions, officers, officials, employees, agents, servants, volunteers and consultants (collectively, "Indemnitees"), as follows: a. Indemnity Obligations Subject to Civil Code Section 2782.8. With respect to the Services performed in connection with the Agreement, Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any and all liability, claims, actions, causes of action, demands or charges whatsoever against any Indemnitee, 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 Consultant, its officers, officials, employees, 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. 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 Involving Intellectual Property. Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any claim involving intellectual property, infringement or violation of a United States patent right or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights, which arises out of,pertains to, or relates to Consultant's Project De Anza Hotel Design Professional Agreement(single)/Rev.Dec.2017 Page 5 of 10 negligence,recklessness, or willful misconduct. 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. C. Claims for Other Liability. For all other liabilities not included in provisions"b"and "c" above, Consultant shall indemnify, defend, and hold harmless the Indemnitees against any and all liability, claims, actions, causes of action or demands whatsoever, including any injury to or death of any person or damage to property, or other liability of any nature arising out of,pertaining to, or relating to the performance of this Agreement by Design Professional, its employees, officers, officials, agents or subconsultants, including liability based on breach of contract, obligations, or warranties, or any unauthorized use or disclosure of City's confidential and proprietary information. 11.2 Consultant will assist City, at no additional cost, in the defense of any claim, dispute or lawsuit arising out of this Agreement. Consultant's duties herein are not limited to or subject to the Contract Price,to Workers' Compensation claims, or to the Insurance or Bond limits and provisions. Nothing in this Agreement shall be construed to give rise to an implied right of indemnity in favor of Consultant against any Indemnitee. 11.3 If this Agreement is entered into or amended on or after January 1,2018, Consultant's duty to pay for any of Indemnitees' defense related costs will be limited to its proportionate share of fault, as determined by final decision by a court of competent jurisdiction, subject to any applicable exceptions in Civil Code section 2782.8. 11.4 Consultant agrees to pay the reasonable costs City may incur in enforcing this provision related to Consultant's indemnification duties,including reasonable attorney fees, fees for legal counsel acceptable to City, expert fees, and all other costs and expenses related to a claim or counterclaim, a purchase order, another transaction, litigation, or dispute resolution. Without waiving any rights, City may deduct money from Consultant's payments to cover moneys due to City. Section 11 survives expiration or termination of this Agreement. 12. INSURANCE On or before the Contract Time commences, Consultant shall furnish City with proof of compliance with City Insurance Requirements, attached and incorporated here as Exhibit D. City will not execute the Agreement until Consultant has submitted and City has reasonably approved receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Alternatively, City may terminate this Agreement or in its sole discretion purchase insurance at Consultant's expense and deduct costs from payments to Consultant. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Consultant shall comply with all laws and regulations applicable to this Agreement. Consultant will promptly notify City of changes in the law or other conditions that may affect the Project or Consultant's ability to perform. Consultant is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act, or other federal or state law, rule or regulation. Project De Anza Hotel Design Professional Agreement(single)/Rev.Dec.2017 Page 6 of 10 13.2 Labor Laws. Consultant shall comply with all labor laws applicable to this Agreement. If the Services include a"public works"component, Consultant must comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. To the extent applicable, Consultant must comply with City's Labor Compliance Program and with state labor laws pertaining to working days, overtime,payroll records and DIR Registration and Oversight. If the Contract Price is $30,000 or more, Consultant must comply with the apprenticeship requirement in Labor Code Section 1777.5. 13.3 Discrimination Laws. Consultant shall not discriminate on the basis of race, religious creed, color, ancestry,national origin, ethnicity, handicap, disability,marital status,pregnancy, age, sex, gender, sexual orientation, gender identity,Acquired-Immune Deficiency Syndrome(AIDS), or any other protected classification. Consultant shall comply with all anti-discrimination laws, including Government Code Section 12900 and 11135, and Labor Code Section. 1735, 1777 and 3077.5. Consistent with City policy prohibiting, Consultant understands that harassment and discrimination by Consultant or any of its subConsultants toward a job applicant, an employee, a City employee, or any other person is strictly prohibited. 13.4 Conflicts of Interest. Consultant shall comply with all conflict of interest laws and regulations applicable to this Agreement and must avoid any conflict of interest. Consultant warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement,has or will receive a direct or indirect financial interest in this Agreement in violation of California Government Code Section 1090 et seq. Consultant may be required to file a conflict of interest form if Consultant makes certain governmental decisions or serves in a staff capacity, as provided in Section 18700 of the California Code of Regulations and other laws. Services may only be performed by persons who are not employed by City and who do not have any contractual relationship with City,with the exception of this Agreement. Consultant is familiar with and agrees to abide by the City's rules governing gifts to public officials and employees. 13.5 Remedies.A violation of this Section constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating this Agreement. City reserves all its rights and remedies under law and this Agreement, including the right to seek indemnification under Section 11. Consultant agrees to indemnify, defend, and hold City harmless from and against any loss, liability, and expenses arising from noncompliance with this Section. 14. PROJECT COORDINATION 14.1 City Project Manager. The City's Project Manager for all purposes under this Agreement will be Gian Martire , who shall have the authority to manage this Agreement and oversee the progress and performance of the Services. City in its sole discretion may substitute another Project Manager at any time and will advise Consultant of the new representative. 14.2 Consultant Project Manager. Subject to City's reasonable approval, Consultant's Project Manager for all purposes under this Agreement will be Brian Jackson , who shall be the single representative for Consultant with the authority to manage compliance with this Agreement and oversee the progress and performance of the Services. This includes responsibility for coordinating and scheduling the Services in accordance with City instructions, service orders, and the Schedule of Perfonnance, and providing regular updates to the City's Project Manager on the Project status,progress, and any delays. City written approval is required prior to Consultant substituting a new Project Manager, which shall result in no additional costs to City or Project delays. Project De Anza Hotel Design Professional Agreement(single)/Rev.Dec.2017 Page 7 of 10 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project with thirty(30) calendar days written notice to Consultant. Consultant will be compensated for satisfactory Services performed through the date of abandonment and will be given reasonable time to assemble the work and close out the Services. No close out work shall be conducted without City reasonable approval of closure costs, which may not exceed ten percent(10%) of the total time expended to the date of abandonment. All charges including job closure costs will be paid in accordance with the provisions of this Agreement and within thirty(30)days of Consultant's final invoice reasonably approved by the City. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time, following reasonable written notice to Consultant at least thirty(30) calendar days prior to the termination date. Consultant will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Consultant closes out the Services and delivers all Work Product to City. All charges approved by City including job closure costs will be paid within 30 days of Consultant's final invoice. 17. GOVERNING LAW,VENUE AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California, excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Consultant must comply with the claims filing requirements under the Government Code prior to filing a civil action in court against City. 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). If a dispute arises, Consultant must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator's award must be supported by law and substantial evidence and include detailed written findings of law and fact. 18. ATTORNEY FEES If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal or other proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs. This Section survives the expiration/termination of this Agreement. 19. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Agreement. 20. WAIVER Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City's waiver of any breach shall not be deemed to constitute waiver of another term, provision, covenant or condition, or a subsequent breach, whether of the same or a different character. Project De Anza Hotel Design Professional Agreement(single)/Rev.Dec.2017 Page 8 of 10 21. ENTIRE AGREEMENT This Agreement and all its Sections represent the full and complete understanding of the Parties, of every kind or nature, and supersedes any and all other agreements and understandings, either oral or written, between them. Any modification of this Agreement will be effective only if in writing and signed by each Party's authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between this main Agreement and the attachments or exhibits thereto, the text of the main Agreement shall prevail. 22. INSERTED PROVISIONS Each contractual provision or clause that may be required by law is deemed to be included and will be inferred in this Agreement. Either party may request an amendment to cure any mistaken insertion or omission of a required provision. 23. 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. 24. SEVERABILITY/PARTIAL INVALIDITY If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. 25. SURVIVAL All provisions which by their nature must continue after the Agreement ends, including without limitation those referenced in specific Sections herein, survive this Agreement and shall remain in full force and effect. 26. NOTICES All notices,requests and approvals must be sent to the persons below in writing to the persons below, and will be considered effective on the date of personal delivery,the delivery date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino To Consultant:Hexagon Transportation Consultants 10300 Torre Ave. 4 North Second Street,Suite 400 Cupertino CA 95014 San Jose,CA 95113 Attention:Gian Martire Attention:Brian Jackson Email:Gianm@cupertino.org Email: bjackson@hextrans.com Project De Anza Hotel Design Professional Agreement(single)/Rev.Dec.2017 Page 9 of 10 27. VALIDITY OF CONTRACT This Agreement is valid and enforceable only if it complies with the contract provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, is signed by the City Manager or authorized designee, and is approved for form by the City Attorney's Office. 28. EXECUTION The person executing this Agreement on behalf of Consultant represents and warrants that Consultant has the right, power, and authority to enter into this Agreement and carry out all actions herein, and that he or she is authorized to execute this Agreement,which constitutes a legally binding obligation of Consultant. 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. IN WITNESS WHEREOF,the parties have caused the Agreement to be executed on the Effective Date stated earlier in this Agreement. CONSU ANT CITY OF CUPERTINO Hexagon ran rtation A Municipal Corpo Consult ts, I c. By By Nam Gary Black Name Aarti Shrivastava Title Presr dent Title Assistant City Manager - Date .1118 Date Tax I.D. No.:77-0478675 APP F3T�ED S FORM: RA LPH STEVENSON HOM Cupertino City Attorney ATTEST: It GRACE SC IDT —13 City Clerk Project De Anca Hotel Design Professional Agreement(single)/Rev. Dec.2017 Page 10 of 10 P IXA60N TRANSPORTATION CONSULTANTS, IN(. April 5, 2018 Mr. Gian Martire Associate Planner City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Re: Proposal to Prepare a TIA for a Hotel Project on De Anza Boulevard in Cupertino, CA Dear Mr. Martire: Hexagon Transportation Consultants, Inc. is pleased to submit this proposal to prepare a Transportation Impact Analysis (TIA)for a proposed new hotel at 10931 N. De Anza Boulevard in Cupertino, California. As proposed, the project involves replacing the Goodyear Auto Service Center with a 149-room 7-story hotel, including a 10,358 s.f. restaurant/bar and 6,410 s.f. of conference/meeting space. The project would eliminate 35 surface parking stalls associated with the auto service center and construct a four-level below- grade parking garage containing 173 parking stalls. Twelve at-grade parking stalls also would serve the project, for a total of 185 parking stalls. Access to the project site would be provided via two existing driveways on N. De Anza Boulevard. Exhibit A Scope of Services The purpose of the traffic analysis is to satisfy the requirements of the City of Cupertino. Since it is estimated that the project would generate fewer than 100 net peak hour vehicle trips (after the existing trip credits are applied), an analysis in accordance with the Santa Clara Valley Transportation Authority's (VTA) Congestion Management Program (CMP) is not required. Table 1 shows the project trip generation estimates. Table 1 Preliminary Trip Generation Estimates AM Peak Hour PM Peak Hour Daily Daily Land Use Size Rate Trips Rate In Out Out . . Hotel' 149 rooms 12.23 1,822 0.62 54 39 93 0.73 53 56 109 Goodyear Auto Service Center 8,323 s.f. 28.52 (237) 2.72 (15) (8) (23) 3,98 (15) (19) (34) Net Trips: 1,585 39 31 70 38 37 75 Notes: Trip generation based on average rates contained in the ITE Trip Generation Manual,10th Ed.,for Hotel(Land Use 310,Occ.Rooms). zTrip rates for existing Goodyear Auto Service Center based on ITE Land Use Code 848(Tire Store).Average rates applied. The traffic analysis will include an analysis of weekday AM peak-hour(7:00-10:00 AM)and PM peak-hour (4:00-7:00 PM)traffic conditions, and will determine the traffic impacts of the proposed development on key signalized intersections near the site. Based on the ten-trips-per-lane rule of thumb, we propose to study the following signalized intersections: Study Intersections 1. N. De Anza Boulevard and Homestead Road (CMP intersection) 2. N. De Anza Boulevard and 1-280 North Ramps(CMP intersection) 3. N. De Anza Boulevard and 1-280 South Ramps (CMP intersection) 4. N. De Anza Boulevard and Mariani Avenue 5. N. De Anza Boulevard and Stevens Creek Boulevard (CMP intersection) 4 North Second Street,Suite 400• San Jose,California 9S113• phone 408.971.6100• fax 408.971.6102• www.hextrans.com /"44 Mr. Gian Martire Aprils, 2018 ®/ Page 2 of 5 The Tasks to be included in the traffic analysis are: 1. Site Reconnaissance and Existing Observations. The physical characteristics of the site and the surrounding roadway network will be reviewed to identify existing roadway cross-sections, speed limits, intersection lane configurations, traffic control devices, and surrounding land uses. Observations of existing traffic conditions will be made to identify any operational deficiencies and to confirm the accuracy of calculated levels of service. 2. Data Collection. Existing AM and PM peak-hour traffic volumes for 3 of the 4 study intersections will be obtained from new three-hour turning-movement counts. The AM counts will be conducted between 7:00 AM and 10:00 AM, and the PM counts will be conducted between 4:00 PM and 7:00 PM. The existing occupied use to be removed (Goodyear Auto Service Center)will be counted to determine AM and PM peak-hour trip credits for the project. Three-hour AM and PM peak-hour volumes for the intersection of N. De Anza Boulevard/Homestead Road will be obtained from the traffic study currently being prepared for the proposed 185-room boutique hotel at the Cupertino Village on N. Wolfe Road. 3. Evaluation of Existing Conditions. The existing operations of the key signalized intersections will be evaluated with a level of service analysis using current weekday AM and PM peak-hour volumes. City of Cupertino level of service guidelines will be applied. CMP level of service guidelines will be followed for all CMP intersections. 4. Evaluation of Background Conditions. Background traffic volumes represent the existing volumes plus the projected volumes from approved developments that have not yet been constructed and occupied. Approved project trips and/or approved project information will be obtained from the Cities of Cupertino and Sunnyvale. The approved trips associated with the nearby Apple Campus 2 project will be adjusted to account for its current occupancy(approx. 50%), assuming the new Apple campus will not be fully occupied at the onset of the traffic study. Improvements associated with approved developments will be included at the guidance of the City of Cupertino. Signalized intersection level of service calculations will be performed to evaluate background conditions. City of Cupertino level of service guidelines will be applied. CMP level of service guidelines will be followed for all CMP intersections. 5. Project Trip Generation, Distribution, and Assignment. Estimates of trips to be added to the surrounding roadway network by the proposed project will be based on the trip generation rates published by the ITE Trip Generation Manual 10th Edition. Estimates will be made for weekday AM and PM peak-hour and daily trip generation (see Table 1 on previous page). Hexagon will coordinate with City of Cupertino staff regarding appropriate trip reductions to apply (e.g., mixed-use internalization reduction). The AM and PM peak-hour trips generated by the existing occupied Goodyear Auto Service Center will be obtained from new trip generation counts. The project will receive credit for the existing trips. The directional distribution of site-generated traffic will be forecasted based on the existing travel patterns in the study area, freeway access points, and the relative locations of complementary land uses. The site-generated traffic will be assigned to the surrounding roadway network based on the trip distribution pattern developed by Hexagon. Estimates will be made of peak-hour project trips at each of the study intersections. 6. Evaluation of Project Conditions. Project-generated traffic will be added to (1)existing and (2) background traffic volumes. Signalized intersection level of service calculations will be conducted to estimate the operating levels of the key intersections during the AM and PM peak hours after the completion of the proposed development under existing + project conditions and background + project conditions. City of Cupertino level of service guidelines and impact criteria will be applied. CMP level of service guidelines and impact criteria will be followed for all CMP intersections. 7. Freeway Segment 1%Evaluation. Based on the projected trip distribution pattern, project trips added to the nearby freeway segments will be determined. A freeway segment capacity analysis will be prepared, in accordance with VTA Guidelines, only if the project would add trips equal to or exceeding 1% of the capacity of any freeway segment currently operating deficiently(LOS F). /`4111 Mr. Gian Martire April5, 2018 ® Page 3 of 5 8. Description of Project Impacts and Recommendations. Based on the results of the intersection level of service analyses, project-generated impacts will be identified and described. Recommendations will be formulated that identify the locations and types of improvements or modifications necessary to mitigate significant project impacts. Improvements could include street widenings, lane additions, changes in lane usage, or modifying existing traffic signals. 9. Vehicle Queuing Analysis. For selected locations where the project would add a significant number of left-turning vehicles, the adequacy of existing/planned storage at turn pockets will be assessed by means of comparison with expected maximum (951h percentile)vehicle queues. 10. Site Access, On-Site Circulation and Parking. A review of the project site plan will be performed to determine the overall adequacy of the site access and on-site circulation in accordance with generally accepted traffic engineering standards and City design standards. This will include a quantitative analysis of the anticipated traffic volumes at the site's access points, as well as a qualitative analysis of the proposed site circulation and parking layout. Parking supply will be evaluated in accordance with the City of Cupertino parking requirements for hotels. 11. Bicycle, Pedestrian and Transit Evaluation. A qualitative analysis of the project's effect on bicycle and pedestrian circulation in the study area will be included in the traffic report. The traffic study will identify any deficiencies and will recommend improvements if necessary. Potential increases in transit vehicle delay due to the project will be estimated. The results of the transit delay evaluation will determine if the project would have an adverse effect on transit services that serve the project study area. 12. Meetings. The fee estimate includes Hexagon staff attendance at one general meeting with the project team and/or City staff in connection with this study. This proposal does not include, however, any appearances or presentations at neighborhood meetings or public hearings, including Planning Commission or City Council meetings. 13. Reports and Response to Comments. Our findings and recommendations will be summarized in a draft TIA report. Hexagon Transportation Consultants will respond to editorial comments, prepare a final TIA report, and submit the report electronically. Hard copies of the draft and/or final TIA report will be provided to City staff upon request. Note that this proposal includes addressing one round of City comments. The completion of the traffic study may be delayed and additional budget may be required should the City's comments request changes to the project description and/or study roadway network that were not identified at the onset of the study. Additional Services Any work not specifically referenced in the above Scope of Services—for example (but not limited to) analyzing project alternatives or phases of development, analyzing more than 3 intersections, analyzing freeway segments, conducting additional counts, preparing a future growth or cumulative analysis, preparing a TDM Plan for the project, preparing a detailed parking study of the Homestead Square Shopping Center, or attending more than one general meeting—shall be considered additional services. Additional services shall be provided upon authorization and will require additional budget and time. Project Schedule & Budget Barring any unforeseen delays, a draft traffic report will be submitted four weeks after receipt of a signed contract agreement and all necessary data from City staff, including approval of the new traffic counts. The final report will be delivered two weeks after receipt of all review comments. We are ready to start work immediately upon authorization. Exhibit C The cost for services rendered under this agreement will be based on staff time and expenses at our standard hourly 2018 rates, not to exceed$33,500, for work items 1 through 13, as outlined in our Scope of Services. This cost estimate includes $3,750 to conduct new counts, including AM peak-hour(7:00-10:00 AM) intersection turning-movement counts, PM peak-hour(4:00-7:00 PM) intersection turning-movement counts, and AM and PM peak-hour trip generation counts of the existing occupied use on the site. Billings Mr. Gian Martire April 5, 2018 Page 4 of 5 Exhibit B will be conducted monthly, based on staff hours expended. This price quote is good for 30 days and assumes all project-related activities will be completed within one year. Extended project schedules may require additional budget for project administration. We are ready to sign your standard contract agreement. We look forward to working with you and appreciate your consideration of Hexagon Transportation Consultants, Inc. for this assignment. If you have any questions, please do not hesitate to call. Thank you. Sincerely, HEXAGON TRANSPORTATION CONSULTANTS, INC. 4- Gary K. Black President Brian Jackson Senior Associate Attachment: 2018 Standard Billing Rates Mr. Gian Martire April 5, 2018 Page 5 of 5 Hexagon 2018 Billing Rates Professional Classification Rate per Hour President $275 Principal $230 Senior Associate II $215 Senior Associate 1 $200 Associate II $180 Associate 1 $165 Planner/Engineer II $145 Planner/Engineer 1 $130 Admin/Graphics $110 Senior CAD Tech $100 Technician $80 Direct expenses are billed at actual costs, with the exception of mileage, which is reimbursed at the current rate per mile set by the IRS. Billing rates shown are effective January 1, 2018 and subject to change January 1, 2019. EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Consultant shall procure prior to commencement of Services and maintain for the duration of the contract,at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED 1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04)or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be(i)the minimum coverage/limits specified in this agreement;or(ii)the broader coverage and maximum limits of coverage of any insurance policy,whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 01 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 01 covering any auto(including owned, hired, and non-owned autos)with limits no less than$1,000,000 per accident for bodily injury and property damage. 3. Workers'Compensation: As required by the State of California, with Statutory Limits and Employer's Liability Insurance of no less than $1,000,000 per occurrence for bodily injury ordisease. O Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant's profession, with limits no less than $2,000,000 per occurrence or$2,000,000 aggregate. If written on a claims made form: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five(5)years after completion of the Services. c. If coverage is canceled or non-renewed,and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date,the Consultant must purchase"extended reporting"coverage for a minimum of five(5)years after completion of the Services. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Exh. D-Insurance Requirements for Design Professionals&Consultants Contracts Form Updated Feb. 2018 1 Additional Insured Status The City of Cupertino, its City Council,officers, officials, employees, agents, servants and volunteers ("Additional Insureds")are to be covered as additional insureds on Consultant's CGL policy. General Liability coverage can be provided in the form of an endorsement to Consultant's insurance(at least as broad as ISO Form CG 20 10(11/85)or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant's insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire,except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City's option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII,orbetter. Verification of Coverage Consultant must furnish acceptable insurance certificates and mandatory endorsements(or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time duringthe Contract term. Subconsultants Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant's insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above,City shall be entitled to coverage for the higher insurance limits maintained byConsultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety(90)days prior written notice. Exh. D-Insurance Requirements for Design Professionals&Consultants Contracts Form Updated Feb. 2018 2 ACC) , ® DATE(MMIDD/YYYY) `��,R� CERTIFICATE OF LIABILITY INSURANCE 4/10/2018 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 CONTACT NAME: Samantha Dutra RC Fischer Co PHONE FAX 1301 Ygnacio Valley Rd#100 ( /�C,No.E:t;)_925-627-5467 ('C,No):925-932-0962 Walnut Creek CA 94596 ADDRESS: sdutra@rcfischer.com INSURER(S)AFFORDING COVERAGE NAIC ft INSURER A:Travelers Indemnity of CT 25682 INSURED HEXAG-1 INSURER B:Travelers Prop Cas Co of Amer 25674 Hexagon Transportation Consultants, Inc. 4 North Second St.,#400 INSURER C:Technology Insurance Company San Jose CA 95113 INSURER D:Argonaut Insurance Company INSURER E:Travelers Indemnity Co. INSURER F: COVERAGES CERTIFICATE NUMBER:315118192 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 I ADDL SUBRI POLICY EFF POLICY EXP LTR TYPE OF INSURANCE POLICY NUMBER MM/DD/YYYY MMIDD/YYYY LIMITS A X COMMERCIAL GENERAL LIABILITY Y Y 6807H532991 3/1/2018 3/1/2019 EACH OCCURRENCE $2,000,000 n DAMAGE TO RENTED CLAIMS-MADE AI OCCUR PREMISES Ea occurrence $1,000,000 MED EXP(Any one person) $5,000 _ PERSONAL&ADV INJURY S 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $4,000,000 PRO- POLICY rXj ECT LOC PRODUCTS-COMP/OP AGG $4,000,000 P1 OTHER: S E I AUTOMOBILE LIABILITY Y BA91-1798647 311/20111 3/1/2019 COMBINED accident SINGLE LIMIT S Ea 1 000.000 _ XIANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) S AUTOS AUTOS NON-OWNED PROPERTY DAMAGE S HIREDAUTOS L AUTOS Per accidentt $ B UMBRELLA LIAB X OCCUR CUP58191`929 3/1/2018 3/1/2019 EACH OCCURRENCE $5,000,000 X EXCESS LIAB CLAIMS-MADE AGGREGATE $5,000,000 DED 1 X I RETENTIONS 0 S C WORKERS COMPENSATION Y TWC3697463 3/1I2016 3/1/2019 X PER OTH- AND EMPLOYERS'LIABILITY Y/N STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVE ! E.L.EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? ❑Y N I A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE S 1.000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 D Professional Liability IAE42074300 3/1/2018 3/1/2019 Each Claim $2,000,000 Claims-Made Form Aggregate S2,000,000 Deductible $5,000 DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) RE:Traffic Impact Analysis for the De Anza Hotel 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. City of Cupertino 10300 Torre Avenue AUTHORIZED REPRESENTATIVE Cupertino CA 95014 ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD Named Insured: Hexagon Transportation Consultants, Inc. Policy No. 680-7H32991 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) phis endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART 1. The following is added to SECTION II —WHO IS h. This insurance does not apply to "bodily AN INSURED: injury" or"property damage" caused by "your Any person or organization that you agree in a work" and included in the "products- "written contract requiring insurance"to include as completed operations hazard" unless the an additional insured on this Coverage Part, but: "written contract requiring insurance" specifically requires you to provide such a. Only with respect to liability for"bodily injury", coverage for that additional insured, and then "property damage" or"personal injury"; and the insurance provided to the additional b. If, and only to the extent that, the injury or insured applies only to such "bodily injury" or damage is caused by acts or omissions of "property damage"that occurs before the end you or your subcontractor in the performance of the period of time for which the "written of "your work" to which the "written contract contract requiring insurance" requires you to requiring insurance" applies, or in connection provide such coverage or the end of the with premises owned by or rented to you. policy period, whichever is earlier. The person or organization does not qualify as an 2. The following is added to Paragraph 4.a. of additional insured: SECTION IV — COMMERCIAL GENERAL c. With respect to the independent acts or LIABILITY CONDITIONS: omissions of such person or organization; or The insurance provided to the additional insured d. For "bodily injury", "property damage" or is excess over any valid and collectible other "personal injury" for which such person or insurance, whether primary, excess, contingent or organization has assumed liability in a on any other basis, that is available to the contract or agreement, additional insured for a loss we cover. However, if you specifically agree in the "written contract The insurance provided to such additional insured requiring insurance" that this insurance provided is limited as follows: to the additional insured under this Coverage Part e. This insurance does not apply on any basis to must apply on a primary basis or a primary and any person or organization for which non-contributory basis, this insurance is primary coverage as an additional insured specifically to other insurance available to the additional is added by another endorsement to this insured which covers that person or organizations Coverage Part. as a named insured for such loss, and we will not share with the other insurance, provided that: if. This insurance does not apply to the on u "property ama rendering of or failure to render any (1) The "bodily injury" or damage" for g "professional services". which coverage is sought occurs; and g. In the event that the Limits of Insurance of the (2) The "personal injury" for which coverage is Coverage Part shown in the Declarations sought arises out of an offense committed; exceed the limits of liability required by the after you have signed that "written contract "written contract requiring insurance", the requiring insurance". But this insurance provided insurance provided to the additional insured to the additional insured still is excess over valid shall be limited to the limits of liability required and collectible other insurance, whether primary, by that "written contract requiring insurance". excess, contingent or on any other basis, that is This endorsement does not increase the available to the additional insured when that limits of insurance described in Section III — person or organization is an additional insured Limits Of Insurance. under any other insurance. CG D3 81 09 15 ©2015 The Travelers Indemnity Company.All rights reserved. Page 1 of 2 Includes the copyrighted material of Insurance Services Office, Inc.,with its permission Named Insured: Hexagon Transportation Consultants, Inc. COMMERCIAL GENERAL LIABILITY Policy No. 680-7H32991 3. The following is added to Paragraph 8., Transfer 4. The following definition is added to the Of Rights Of Recovery Against Others To Us, DEFINITIONS Section: of SECTION IV — COMMERCIAL GENERAL "Written contract requiring insurance" means that LIABILITY CONDITIONS: part of any written contract under which you are We waive any right of recovery we may have required to include a person or organization as an against any person or organization because of additional insured on this Coverage Part, payments we make for "bodily injury", "property provided that the "bodily injury" and "property damage" or "personal injury" arising out of "your damage" occurs and the "personal injury" is work" performed by you, or on your behalf, done caused by an offense committed.- under a written contract requiring insurance with that person or organization. We waive this right a. After you have signed that written contract; only where you have agreed to do so as part of b. While that part of the written contract is in the "written contract requiring insurance" with effect; and such person or organization signed by you before, and in effect when, the "bodily injury" or c. Before the end of the policy period. "property damage" occurs, or the"personal injury" offense is committed. Page 2 of 2 ©2015 The Travelers Indemnity Company.All rights reserved. CG D3 81 09 15 Includes the copyrighted material of Insurance Services Office, Inc.,with its permission Policy No.BA9H798647 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET WAIVER OF SUBROGATION This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM The following replaces Paragraph A.5., Transfer of required of you by i written contract executed Rights Of Recovery Against Others To Us, of the prior to any"accident" or"loss", provided that the CONDITIONS Section: "accident" or "loss" arises out of the operations 5. Transfer Of Rights Of Recovery Against Oth- contemplated by such contract. The waiver ap- ers To Us plies only to the person or organization desig- We waive any right of recovery we may have nated in such contract. against any person or organization to the extent CA T3 40 02 15 ©2015 The Travelers Indemnity Company.All rights reserved. Page I of t Includes copyrighted material of Insurance Services Qf rrce,Inc.with its permission. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 03 13 (Ed. 04-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT 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.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Any person or organization as required by written contract 250.00 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 3/1/2018 Policy No. TWC3697463 Endorsement No. 0 Insured Hexagon Transportation Consultants, Inc. Premium$ 9257 Insurance Company Technology Insurance Company, Inc. Countersigned by WC 00 03 13 (Ed.04-84) WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 04 04 (Ed. 04-84) PENDING RATE CHANGE ENDORSEMENT A rate change filing is being considered by the proper regulatory authority. The filing may result in rates different from the rates shown on the policy. If it does, we will issue an endorsement to show the new rates and their effective date. If only one state is shown in Item 3.A. of the Information Page,this endorsement applies to that state. If more than one state is shown there,this endorsement applies only in the state shown in the Schedule. Schedule State AZ This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 3/1/2018 Policy No. TWC3697463 Endorsement No. 0 Insured Hexagon Transportation Consultants, Inc. Premium$ 9257 Insurance Company Technology Insurance Company, Inc. Countersigned by WC 00 04 04 (Ed.04-84)