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20-012 ActiveWayz Engineering, Inc., Design Services for the McClellan Rd Separated Bikeways - Phase 2 ProjectCITY OF II CUPERTINO DESIGN PROFESSIONAL SERVICES AGREEMENT (SINGLE) WITH ACTIVEW A YZ ENGrNEERING 1. PARTIES This Agreement is made by and between the City of Cupe11ino, a municipal corporation ("City"), and Act ive Wayz Engineering ("Consultant"), a Corporation for design serv ices for th e McClellan Road Separated Bikeways-Ph ase 2 project ("Project"), and is effective on the last date signed below ("Effective Date"). 2. SERVICES 2.1 Basic Services. Consultant agrees to provide the Basic Services for the Project, which are set f011h in detail in the Scope of Services , attached here and incorporated as Exhibit A, and as fm1her 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 unautho1ized 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 en-ors and omissions and those of its subconsultants, and must promptly con-ect them at its sole expense. Consultant must take appropriate measures to avoid or mitigate any delay, liability, and costs resulting from its e1rnrs or omissions. 3. TIME OF PERFORMANCE 3.1 Term. This Agreement begins on the Effective Date and ends on _JL_me_3_0_,2_02_1 ______ _, unless terminated earlier as provided herein ("Contract Time"). The City's approp1iate depai1ment head or City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City 's purchasing policy . 3.2 Schedule of Performance. All Services must be provided within the times specified in Exhibit B, Schedule of Perfonnance, attached and incorporated here . Consultant must promptly notify City of any actual or potential delay in providing the Services as scheduled to afford the Pai1ies adequate City Project Mc C le ll a n Road Separated Bikeways-Ph ase 2 1 of 11 Design Profess ional Agr (Single)/Rev Oct. 2019 opportunity to address or miti gate delays . If th e Serv ice s are divided by tasks , Consultant must begin work on each separate task upon receiving City 's Noti ce to Proceed ("NTP "), and must complete each task within the time specified in ExhibitB . 3.3 Time is of the essence for the perf01mance 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 perfonnance of the Basic Services and Additional Services, if approved , a cumulative total amount that will be capped so as not to exceed $ 160,000.00 ("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 pe1mitted in excess of the Contract Price . 4.2 Basic Services . City will pay Consultant $ 149 ,820 .00 ("Lump Sum Price") for the complete and satisfactory perfo1mance of the Basic Services in accordance with Exhibit C. The Lump Sum P1ice is inclusive of all time and expenses , including, but not limited to, sub-Consultants ' costs, mate1ials, supplies , equipment, travel , ta x es , overhead, and profit. If the Basic Services are not fully completed, Consultant will be compensated a percentage of the Lump Sum Piice prop011ionate 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 authoiize Additional Services up to an amount not to exceed$ 10,180 .00 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 thi11y (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 w1iting of any disagreements with the invoice or the stated percentage of completion of tasks . If the disagreement is umesolved, 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 perfo1med by each person; (iii) the time spent per person, in thirty (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 pe1mitted reimbursable expenses . City Project Mc C le llan Ro a d Separated Bikeway s-Ph ase 2 2 of 11 Design Profess ional Agr (Single)/Rev Oct. 2019 b. Rates and Receipts. All hourly rates and reimbursable expenses must confonn to the City-approved rates set f011h in Exhibit C, which will be in effect for the entire Contract Time. Each invoice must attach legib le, 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 th e means and methods of perf01ming the Services and shall exercise full control over the employment, direction , compensation and discharge of all persons assisting Consultant in perf01ming 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 sub- Consultants that they have the qualifications and skills to perf01m the Services in a competent and professional manner, as exercised by design professionals perf01ming 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 perfonned as specified to City's reasonable satisfaction. 5.3 Permits and Licenses. Consultant wairnnts on behalf of itself and any sub-Consultants that they are properly licensed, registered , and/or ce11ified to perform the Services, as required by law, and that they have procured a valid City Business License, if required by the Cupe11ino Municipal Code. 5.4 Sub-Consultants. Unless prior written approval from City is obtained, only Consultant 's employees and sub-Consultants whose names are included in this Agreement and incorporated Exhibits may provide Services under this Agreement. Consultant must require all sub-Consultants to furnish proof of insurance for workers ' compensation, commercial liability, auto, and professional liability in reasonable conf01mity to the insurance required of Consultant. The terms and conditions of this Agreement shall be binding on all sub-Consultants relative to the p011ion 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 Benefits and Taxes. Consultant is solely responsible for the payment of employment taxes incmTed under this Agreement and any similar federal or state taxes. Consultant and any of its employees, agents , and subcontractors shall not have any claim under this Agreement or otherwise against City for senio1ity, vacation time , vacation pay, sick leave, personal time off, ove11ime , health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Consultant shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Consultant's business including, but not limited to, federal and state income taxes . City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Consultant. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, dete1mine that Consultant, or any of its employees, agents , or subcontractors, is an employee for any purpose, then Consultant agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City City Project McC le ll an Road Separate d Bikeways-Ph ase 2 3 of 11 Design Profess ional Agr (Single)/Rev Oct . 2019 as a result of such detennination, so that the City's total expenses under this Agreement are not greater than they would have been had the dete1mination not been made. 5.7 Errors and Omissions. Consultant is solely responsible for its e1rnrs and omissions and those of its sub-Consultants, and must take prompt measures to avoid, mitigate, and c01Tect them at its sole expense. 6. PROPRIETARY /CONFIDENTIAL INFORMATION During the Contract Time, Consultant may have access to private or confidential info1mation owned or controlled by the City, which may contain proprietary or confidential details, the disclosure of which to third pm1ies may be damaging to City. Consultant shall hold in confidence all City infonnation and use it only to perfonn this Agreement. Consultant shall exercise the same standard of care to protect City infonnation as a reasonably prudent Consultant would use to protect its own proprietary data. 7. OWNERSIDP 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 infonnation or work, in any medium, prepared by Consultant under this Agreement ("Work Product"), will be the exclusive prope11y of the City upon completion of the work to be performed hereunder or upon te1mination of this Agreement, to the extent requested by City. In any case, no Work Product shall be shown to a third-pa11y without prior written approval by City 7.2 Copyright. To the extent pe1mitted by Title 17 of the U.S. Code, all copyrights to the Work Product prepared/created by Consultant and its sub-Consultants and all copyrights in such Work Product shall constitute City property. If it is detennined under federal law that the Work Product is not "works for hire," Consultant hereby assigns to City all copyiights to the Work Product when and as created, and shall require sub-Consultants to do the same. 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 auth01ized use of any third pm1y intellectual prope11y, including but not limited to patented, trademarked, or copyrighted intellectual prope1iy 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 1ights, City may use or modify the Work Product of Consultant and its sub-Consultants 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 01iginal Services; and/or (d) For other City projects . 7.5 Deliverables and Format. Electronic and hard copies of the Work Product constitute pm1 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 City Project Mc C lellan Road Separated Bikeways -Ph ase 2 4 of 11 Design Professional Agr (Single)/Rev Oct. 2019 items must be in CAD and PDF formats , and unl ess oth erwise 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 perfo1mance , benchmarks, and deliverables. The records and suppo1ting documents must be kept separate from other files and maintained for a pe1iod of four ( 4) 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 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 instrnments of service/deliverables for review and audit. This Section 8 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 umeasonably withheld. For purposes of this provision, control means fifty percent (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, dming the tenn of this Agreement and for one (1) year thereafter, will reference the City's contributions in making the project possible. The words "City of Cupe1tino " will be displayed in all pieces of publicity, including flyers, press releases , posters, brochures, public service announcements , interviews , and newspaper a1ticles . No signs may be posted, exhibited, or displayed on or about City property, except signage required by law or this Agreement, without prior w1itten 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 as follows: a. Indemnity for Design Professional Liability: With respect to the pe1formance of design professional services by a design professional as defined in California Civil Code Section 2782.8 , to the fullest extent pennitted by law , Consultant shall indemnify and hold hannless City, its officers , officials, agents , employees, and volunteers (collectively and/or individually "City") from City Project McC le ll a n Road Se parated Bikeways -Ph ase 2 5 of 11 Design Profess ional Agr (Single)/Rev Oct. 2019 and against any and all liabilities, claims , damages , lo sses , costs , or expenses (including, without limitation, costs , attorneys ' fe e s, and expe11 fee s of liti gation and alternative dispute resolution) of every nature to the extent arising out of, pe1taining to , or relating to the negligence, recklessness, or willful misconduct of Consultant or any of its officers , employees , servants, agents , or subcontractors ( collectively and/or individually "Consultant"), in the perfornrnnce of this Agreement or failure to comply with any obliga tions of the Agreement. If it is finally determined (through a non-appealable judgment or an agreement between City and Consultant) that liability is caused by the comparative negligence or willful misconduct of City, then Consultant 's indemnification and hold harmless obligation shall not exceed Consultant's finally determined percentage of liability bas ed upon the comparative fault of Consultant. lITespective of any language to the contrary in this Agreement, the Consultant has no duty to provide or to immediately pay for an up-front defense of City against unproven claims or allegations, but shall reimburse those litigation costs and expenses (including, without limitation, attorneys' fees , and expe11 fees) incmTed by the City to the extent caused by the negligence, recklessness , or willful misconduct of Consultant. In no event shall the cost to defend charged to Consultant exceed Consultant's prop01tional percentage of fault , except as describ ed in Section 27 82 .8(a) and (e) of the California Civil Code . b. Claims Involving Intellectual Property. Consultant shall indemnify , defend, and hold hamtless Indemnitees from and against any claim involving intellectual prope1ty, inf1ingement, or violation of a United States patent 1ight or copyright, trade secret, trademark, or service mark or other proprietary or intellectual prope1ty rights, which arises out of, pe1tains to , or relates to Consultant 's 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. Except a s prov ided in subsections 11.l(a) and (b), to the fullest extent pennitted by law, Consultant shall hold harmless , defend (with counsel agreed to by City), and indemnify City and its officers, offi ci als, agents , employees , and volunte ers (collectively and/or individually "City") from and against any and all liability, claim, loss , damage , expense, costs (including, without limitation, costs , attorneys ' fees , and expe11 fees of litigation) of every nature arising out of, related to, or in connection with the perfo1mance of work hereunder by Consultant or any of its officers, employees, servants , agents , or subcontractors , or the failure of the same to comply with any of the obligations contained in this Agreement, except such loss or damage which was caused by the sole negligence or sole willful misconduct of the City. Consultant's duty to defend applies immediately, whether or not liability is established. An allegation or dete1mination that persons other than Contractor are responsible for the claim does not relieve Contractor from its separate and distinct obligation to defend as stated herein. 11.2 Consultant will assist City , at no additional cost, in the defense of any claim, dispute , or lawsuit mising out of this Agreement. Consultant's duties herein are not limited to or subject to the Contract P1ice , to Workers ' Compensation claims , or to the Insurance or Bond limits and provisions . Nothing in this Agreement shall be constrned to gi v e 1ise to an implied right of indemnity in favor of Consultant against any Indemnitee . City Project McC le ll an Road Se parate d Bikeways-Ph ase 2 6 of 11 Desi gn Profess io na l Agr (Sin g le)/Rev O ct. 2 019 11.3 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. 11.4 Consultant agrees to obtain executed indemnity agreements with provisions identical to those set fo1th here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for , with, or on behalf of Consultant in the perfo1mance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.5 This Section 11 shall survive expiration or te1mination 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 perfo1m . Consultant is responsible for ve1ifying the employment authorization of employees performing the Services, as required by the Immigration Refo1m and Control Act, or other federal or state law, rule or regulation. 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 workirtgdays, 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 disc1iminate 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-disc1imination laws, including Government Code Section 12900 and 11135, and Labor Code Section. 1735, 1777, and 3077.5 . Consistent with City policy prohibiting it, Consultant understands that harassment and discrimination by Consultant or any of its sub-Consultants toward a job applicant, an employee, a City employee, or any other person is stiictly prohibited. City Proj ect McClellan Road Sepa rated Bikeways-Phas e 2 7 of 11 Design Professional Agr (Single)/Rev Oct. 2019 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 wanants 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 fmm if Consultant makes certain governmental decisions or serves in a staff capacity, as provided in Section 18700 of Title 2 of the California Code of Regulations and other laws . Services may only be perfmmed 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 rnles governing gifts to public officials and employees . 13.5 Remedies. A violation of this Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursement, or tenninating 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 hamtless 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 John Raay mak ers who shall have the authority to manage this Agreement and oversee the progress and perfonnance 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_A_d_m_as_z_ew_d_ie ___________ _ who shall be the single representative for Consultant with the authority to manage compliance with this Agreement and oversee the progress and perfo1mance of the Services . This includes responsibility for coordinating and scheduling the Services in accordance with City instrnctions , service orders , and the Schedule of Perfo1mance , 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. 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 perfmmed 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 thi1ty (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 tennination date . Consultant City Project M cC le ll an Road Se parated Bikeways -Ph ase 2 8 of 11 Design Professi onal Agr (Single)/Rev Oct. 2019 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 thi1ty (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 oflaw rnles which may direct the application of laws of another jmisdiction. Any lawsuits filed related to this Agreement must be filed with the Supe1ior Comt 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 comt against City. The Agreement and obligations of the patties are subject to all valid laws , orders, rnles, and regulations of the auth01ities having jurisdiction over this Agreement (or the successors of those auth01ities). If a dispute mises, Consultant must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator 's award must be supp01ted 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 1ights or a judgment in connection with this Agreement, the prevailing pm1y will be entitled to reasonable attorney fees and costs. This Section 18 survives the expiration/tennination of this Agreement. 19. THIRD PARTY BENEFICIARIES There are no intended third patty 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 te1m , provision, covenant, or condition or a subsequent breach, whether of the same or a different character 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of the Patties, of every kind or nature , and supersedes any and all other agreements and understandings, either oral or w1itten, 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 any term, clause, or provision of this main Agreement and any te1m, clause, or provision of the attachments or exhibits thereto, the te1ms of the main Agreement shall prevail and be controlling . 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 patty may request an amendment to cure any mistaken insertion or otnission of a required provision. City Project McClellan Road Separated Bikeways -Phase 2 9 of 11 Design Professional Agr (Single)/Rev Oct. 2019 23. HEADINGS The headings in this Agreement are for convenience only, are not a pait of the Agreement and in no way affect, lin1it , or amplify the te1ms or provisions of this Agreement. 24. SEVERABILITY /PARTIAL INVALIDITY If any te1m or provision of this Agreement, or their application to a paiticular situation, is found by the court to be void, invalid , illegal or unenforceable, such tenn or provision shall remain in force and effect to the extent allowed by such rnling. All other te1ms 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 ce1tified, or the next business day following electronic submission: To City of Cupertino: To Consultant: 10300 Torre Ave., C upertino CA 95014 Active Wayz Engineering 790 I Oakport St, Ste 42 25, Oakland , CA 9462 l Attention: John Raaymakers Attention: Admas Zewdie Email : johnr@ cupertino .org Email : admas @ activewayz.engineering 27. VALIDITY OF CONTRACT This Agreement is valid and enforceable only if it complies with the contract provisions of Cupe1tino Municipal Code Chapters 3.22 and 3 .23, is signed by the City Manager or authorized designee, and is approved for f01m by the City Attorney 's Office. 28. EXECUTION The person executing this Agreement on behalf of Consultant represents and wa1Tants that Consultant has the right , power, and auth01ity to enter into this Agreement and can-y out all actions herein, and City Project McC le ll a n Road Separated Bikeways -Ph ase 2 10 of l l Design Professiona l Agr (Single)/Rev Oct. 2019 that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Consultant. This Agreement may be executed in counterpaits, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. IN WITNESS WHEREOF, the pa1ties have caused the Agreement to be executed on the Effective Date stated earlier in this Agreement. CITY OF CUPERTINO By ____ -+-+--+---- Name C Ht1D Title /15"5 ( f)1{l(Clorl or Pv&,1 l w {)/t-16 Date_2__,,,_/_e,--+-/_-z_o_· ___ _ APPROVED AS TO FORM: HEATHER M . MINNER Cupe1tino C ity Attorney ATTEST: CONSULTANT Name Admas Zewdie, P.E. Title Date President 01/20/2020 Tax I.D. No.: 81-3650518 City Project McClellan Road Se parated Bikeways-Phase 2 11 of 11 Design Profess ional Agr (Single)/Rev Oct. 2019 Exhibit A Scope of Services ActiveWayz Engineering(Hereafter referred to as DESIGN PROFESSIONAL) shall perform professional services as detailed in the following sections related to the design, bidding and construction for the McClellan Road Separnted Bikeways-Phase 2. (Hereafter referred to as "PROJECT") GENERAL A. General PROJECT Description: The PROJECT involves design development, construction document preparation, bid support, and construction support services for the PROJECT. The PROJECT will be for the construction of Class IV separated bike lanes. The PROJECT will be constructed on McClellan Road between Stelling A venue and Torre A venue, but does NOT include traffic signal modifications or geometric changes at De Anza Boulevard. B. General Performance Requirements : 1. The performance of all services by DESIGN PROFESSIONAL shall be to the satisfaction of the CITY, in accordance with the express terms hereof, including but not limited to the terms set out in detail in this scope of services and the standard of care provisions contained in this AGREEMENT. 2. The CITY's Department of Public Works shall manage the PROJECT and this AGREEMENT. DESIGN PROFESSIONAL shall receive final direction from the CITY's Director of Public Works or his/her authorized designee (hereinafter collectively "CITY") only. The CITY shall resolve any conflicting direction from other groups, departments or agencies . 3. DESIGN PROFESSIONAL shall coordinate this scope of services with the CITY as well as with other CITY consultants and contractors, as needed or as directed by the CITY. DESIGN PROFESSIONAL shall schedule meeting and prepare meeting agendas and minutes for all PROJECT meetings during the design phase under the scope of work. All minutes of meetings are due to the CITY within five (5) working days after the meeting. DESIGN PROFESSIONAL shall provide copies of such documentation to the CITY, and as directed by the CITY, to other appropriate agencies and entities. DESIGN PROFESSIONAL shall coordinate all responses to comments through the CITY. 4. DESIGN PROFESSIONAL shall designate and provide to the CITY the names of their team members for the PROJECT. The team members shall be satisfactory to the CITY. DESIGN PROFESSIONAL shall not substitute any team members without the prior approval of the CITY. ActiveWayz Exhibit A McClellan Road Separated Bikeways-Phase 2 I of 12 5. DESIGN PROFESSIONAL's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly process of the work. The schedule for the performance included in EXHIBIT B, may be adjusted by mutual agreement. 6. DESIGN PROFESSIONAL shall manage its SUBCONSULTANTS and administer the PROJECT. DESIGN PROFESSIONAL shall consult with the CITY, research applicable design criteria, and communicate with members of the PROJECT team. 7. When the CITY determines that the PROJECT requirements have been sufficiently identified, DESIGN PROFESSIONAL shall prepare and update a PROJECT schedule for the CITY at the beginning of each TASK as defined in SECTION 2 -"TASK" of this EXHIBIT A. The PROJECT schedule shall identify milestone dates for decisions required of the CITY, design services furnished by DESIGN PROFESSIONAL and DESIGN PROFESSIONAL's SUBCONSULTANTS, dates of reviews and approvals required by all governmental agencies that have jurisdiction over the PROJECT, deliverables to be furnished by DESIGN PROFESSIONAL, completion of documentation provided by DESIGN PROFESSIONAL, commencement of construction and substantial completion of the construction of the PROJECT, and as identified in the exhibits under this AGREEMENT. 8. DESIGN PROFESSIONAL shall submit construction documents to the CITY, according to this EXHIBIT A for purposes of evaluation and approval by the CITY. The CITY including the Department of Public Works Engineering and other CITY department as necessary will review the documents during each phase. DESIGN PROFESSIONAL will meet with the CITY for progress review at various stages of the PROJECT. DESIGN PROFESSIONAL will be responsible for causing the appropriate SUBCONSUL TANT(S) to attend any meetings included in this SCOPE OF SERVICES. DESIGN PROFESSIONAL shall make revisions to the construction documents as required for each task in a timely manner. 9. DESIGN PROFESSIONAL shall assist the CITY, as requested by the CITY, in connection with the CITY' s responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the PROJECT. 10. DESIGN PROFESSIONAL shall prepare and present to the CITY an Organization Chart, Directory, and Communication Flow Chart at the PROJECT Kick-Off Meeting. This meeting shall introduce team members, establish routes of communication, and discuss the participants' roles, responsibilities, and authority. ActiveWayz Exhibit A McClellan Road Separated Bikeways-Phase 2 2 of 12 Task 1.0 Data Collection 1.01 Existing Data Assembly: DESIGN PROFESSIONAL shall review PROJECT data provided by the CITY that may include, but is not limited to : preliminary design plan, topographic survey, existing utility plans, ortho-rectified aerial maps, geotechnical reports, traffic studies, CEQA docmnents, other environmental studies, tree surveys, arborist's reports, approved Master Plan, or other such data. The DESIGN PROFESSIONAL shall be entitled to reasonably rely upon the accuracy and sufficiency of any information provided to the DESIGN PROFESSIONAL by the CITY or the CITY' s agents. 1.02 The DESIGN PROFESSIONAL shall identify discrepancies or shortcomings among the existing data, and identify solutions for resolution, and propose generation of additional site information necessary to provide an accurate PROJECT base map. 1.03 The DESIGN PROFESSIONAL shall utilize existing data to the extent possible and inform the CITY immediately of problems associated with using existing data for PROJECT base information. 1.04 Utility Coordination: CITY will provide the DESIGN PROFESSIONAL drawing files that include existing utilities in the project area. The DESIGN PROFESSIONAL shall coordinate with all utility owners who may have facilities within the PROJECT area or that may be impacted by the PROJECT work. Transmit preliminary plans for identification of potential conflicts. Coordinate potholing by utility companies and owners as required. 1.05 Supplemental Topographic Survey: CITY will provide the DESIGN PROFESSIONAL drawing files that include topographic surveys in the project area. The DESIGN PROFESSIONAL shall perform supplemental topographic surveys necessary for the development of the project plans . The limits of the supplemental topographic survey are shown on Attachment A . The supplemental survey will include: • Cross-Sections at 25' interval • Roadway features such as back of walk, top of curb, flowline, lip of gutter, pavement grade breaks, lane striping, pavement markings, signs, guard rails, barriers, and fences • Corners of surface-visible utilities • Dips of accessible storm drain and sanitary sewer facilities • Trees, including diameter at breast height (DBH) and canopy limits Prepare a Digital Terrain Model (DTM) based on the collected data with breaklines added for critical grade breaks such as top of curb. 1.06 Right of Way: City will provide the DESIGN PROFESSIONAL drawing files that include existing right of way information in the project area. 1.07 Base Sheet Preparation: The DESIGN PROFESSIONAL shall compile survey and other data as made available into a base sheet create PROJECT base information in AutoCAD for use in subsequent PROJECT design tasks and submit to the CITY for review and ActiveWayz Exhibit A McClellan Road Separated Bikeways-Phase 2 3 of 12' comment. The base information shall utilize topographic survey as furnished by the CITY and supplemented by the DESIGN PROFESSIONAL, according to the agreement. 1.0 Deliverables: (all deliverables digital unless otherwise noted) 1.01 Source Document Listing 1.02 Proposal of Additional Investigative Actions 1.03 Details of Problematic Data with solutions for resolution 1.04 Summary of Utility Companies Contacted and Actions Taken 1.05 AutoCAD file of topographic survey data 1.06 None 1.07 Scaled Base Map in AutoCad (current version) Format, including PROJECT Area Surface Features Task 2. 0 Construction Document Development 2.01 Meeting: The DESIGN PROFESSIONAL shall participate in four (4) design team meetings with representatives of the CITY during the Construction Document phase and provide written meeting minutes to the CITY within five (5) business days. 2.02 Update 35% Plans: The DESIGN PROFESSIONAL shall review the 35% project plans previously prepared and provide design modification recommendations. 2.03 65% Construction Documents: The 65% Construction Documents shall be a refinement of the Preliminary Design documents . The 65% Plans, Draft Technical Specifications, and 65% Cost Estimate shall be submitted together. • 65% Plans: Prepare 65% Design Plans and submit them to the CITY for review and comment. 65% plans shall include any sheets not previously submitted (erosion control, draft details, etc .). Advance the design to the point that all major design issues and solutions are represented in the plans. The following types of plans may be prepared: o Title Sheet, Legend and Notes o Typical Cross Sections o Demolition Plans o Street Improvement Plans and Profiles o Utility Plans and Profiles o Construction Details o Signing Striping Plans ActiveWayz Exhibit A McClellan Road Separated Bikeways-Phase 2 4 of 12 ' o Erosion Control Plans Traffic control requirements during construction shall be incorporated in the technical specifications, and no traffic control plans will be prepared. • 65% Technical Specifications: Prepare Draft Technical Specifications and submit them to the CITY for review and comment. The Technical Specifications are to be prepared in CSI formal and reference CITY or Caltrans Standard Specifications for the various items of work, including measurement and payment provisions. • 65% Cost Estimate: Prepare a 65% Estimate of Probable Cost based on items and quantities of work shown on the 65% Plans and other anticipated improvements. Prices will be based on the magnitude of the quantities and the DESIGN PROFESSIONAL's experience with similar local projects and engineer's judgment. 2.04 95% Construction Documents: The 95% Construction Documents shall be a refinement of the 65% Design Documents and are to be based on comments received for the 65% review . The 95% Plans, Final Technical Specifications, and 95% Cost Estimate shall be submitted together. • 95% Plans: Prepare 95% Design Plans and submit them to the CITY for review and comment. • 95% Technical Specifications: Update the Draft Technical Specifications and submit the Final Technical Specifications to the CITY for review and comment. The technical specifications are to reference CITY or Caltrans Standard Specifications for the various items of work, including measurement and payment provisions. • 95% Cost Estimate: Prepare a 95% Estimate of Probable Cost as needed based on items and quantities of work shown on the 95% Plans and other anticipated improvements. Prices will be based on the magnitude of the quantities and the DESIGN PROFESSIONAL's experience with similar local projects and engineer's judgment 2.0 Deliverables: (all deliverables digital unless otherwise noted) 2.01 Meeting Notes 2.02 Updated 35% Geometric Drawing 2.03 65% Design Plans, 65% Technical Specification, 65% Construction Cost Estimate 2.04 95% Design Plans, 95% Technical Specifications, 95% Construction Cost Estimate Task 3.0 Final (100%) Construction Documents 3.01 100% Construction Documents: The 100% Construction Documents shall address any comments received for the 95% review . The 100% Plans, Technical Specifications, and Cost Estimate shall be submitted together on a flash drive . CITY will review the 100% Construction Documents for confirmation that responses to all previously provided comments are appropriately integrated. DESIGN PROFESSIONAL is to make any changes to the 100% plans that are requested by the CITY. ActiveWayz Exhibit A McClellan Road Separated Bikeways-Phase 2 5 of 12 ' 3.02 100% Plans: Pre pare 100% Design Plans and submit them to the CITY for r eview and approval. 3.03 100% Technical Specifications: Upda te th e Final Technical Specifications and submit the 100 % Technical Specifications to the CITY. 3.04 100% Cost Estimate: Prepare a 100 % Estimate of Probable Construction Cost as needed based on items and quantities of work shown on the 100 % Plans 3.0 Deliverables: (all d eliverables digital unless otherwise noted) 3.01 3.02 3.03 Task 4.0: 100 % Plans 100 % Technical Specifications 100% Cost Estimate Bid and Award Support This task shall be paid on a time and material basis. 4.01 Bid Period Assistance: DESIGN PROFESSIONAL shall provide the following bid phase services, as requested by the CITY, through award of the construction contract: a. Attend the general contractor's pre -bid meeting, if held. b . Respond to bidders' questions until the question cutoff period identified in the bid documents package. c. Assist in the review and processing of substihition submittals during the Bid phase. d . Assist in the evaluation of bids as requested by the CITY. 4.02 Addenda Preparation: As requested b y the CITY, prepare addenda to PROJECT documents including, but not limited to , n ew or revised Plans, new or revised Technical Specifications and/or removal of items from the PROJECT Plans and/or Specifications . 4.03 PROJECT Document Conformance: DESIGN PROFESSIONAL shall update the Construction Document package to include all addenda issued during the Bid process and submit a Conformed Set of drawings and specifications to the CITY within ten (10) days of the contract award by the City Council. a. The DESIGN PROFESSIONAL shall provide one (1) complete electronic format Conformed Set Construction Documents and Technical Specifications in both native file formats (AutoCAD, MS Word) as well as pdf format on a flash drive. 4.0 Deliverables: (all deliverables digital unless otherwise noted) 4.0lb Written response to Bidders' questions 4Dl c Written evaluation of substitutionsubmittals ActiveWayz Exhibit A McClellan Road Separated Bikeways-Phase 2 6 of 12 ' 4D2. PROJECT Addenda 4ill Conformed PROJECT Documents Task 5.0: Construction Support This task shall be paid on a time and material basis. DESIGN PROFESSIONAL's responsibility to provide the Construction Support Services commences with the construction contract award and ends with submission of the final PROJECT Punch List. Duties, responsibilities and limitations of authority of DESIGN PROFESSIONAL under this Task shall not be restricted, modified or extended except by advance, written agreement between CITY and DESIGN PROFESSIONAL. 5.01 Submittal Review: As requested by the CITY, the DESIGN PROFESSIONAL shall review and approve or reject the Conh·actor's submittals within five (5) working days of receipt. The DESIGN PROFESSIONAL may request additional review time for particularly complex or unusual submittals. The CITY shall not grant additional review time for standard construction item submittals. The DESIGN PROFESSIONAL shall maintain a detailed record of all submittals reviewed by them. 5.02 Requests for Information: As requested by the CITY, the DESIGN PROFESSIONAL shall review Contractor's Requests for Information (RFI) and provide a written response to the DESIGN PROFESSIONAL with a copy to the CITY, within five (5) working days of receipt. The DESIGN PROFESSIONAL's response shall provide, with advance CITY approval, supplemental drawings and/or specifications necessary to clarify the RFI. The DESIGN PROFESSIONAL shall maintain a detailed record of all RFI's and responses reviewed by them . 5.03 Change Orders: As requested by then CITY, the DESIGN PROFESSIONAL shall review and advise the CITY on requests by the CITY or Contractor for changes in the construction of the PROJECT . The DESIGN PROFESSIONAL shall review CITY prepared Contract Change Orders and, where necessary, prepares Drawings and Specifications to describe Work to be added, deleted or modified. The DESIGN PROFESSIONAL shall maintain all records relative to changes in the construction. 5.04 Construction Meetings: Attend up to two (2) site meetings in the Construction phase and provide meeting minutes to the CITY within two (2) business days. 5.05 Record Drawings: DESIGN PROFESSIONAL shall revise the contract plans to include all change orders, RFI responses and field changes to reflect actual conditions. Utilizing the contractor's red-line mark-up plan set the DESIGN PROFESSIONAL shall transfer these changes to the record drawings. 5.0 Deliverables (all deliverables shall be digital unless otherwise noted) ActiveWayz Exhibit A McClellan Road Separated Bikeways-Phase 2 7ofl2' 5.01 Responses to submittals, submittal log 5.02 Responses to Requests for Information, RFI log 5.03 Review comments for CITY prepared Change Orders 5.04 Meeting Minutes 5.05 Record Drawings Task 6.0: Additional Services DESIGN PROFESSIONAL services not specifically identified in the Scope of Services shall be considered Additional Services. At the CITY's request, the DESIGN PROFESSIONAL shall provide a fee proposal for specific additional services consistent with the professional rate schedule in Exhibit C. Other Tasks/Services that may be assigned per PROJECT needs: • Community Outreach Support/Design Visualization • Utility Coordination • Permit Acquisition • Electrical Design • Legal Descriptions and Plat Maps -Obtain title reports for two properties and prepare plat maps and legal descriptions for partial acquisition of the two properties. ADDITIONAL SERVICES DESIGN PROFESSIONAL Services beyond the work in these tasks may be provided by DESIGN PROFESSIONAL as Additional Services only if such Additional Services are authorized in writing by the CITY in advance . An Additional Services amount of Ten Thousand One Hundred and Eighty Dollars($ 10,180 .00) is made a part of this agreement. Additional services may be paid for as a negotiated maximum not to exceed amount or by a time and materials cost accounting with a maximum not to exceed. ActiveWayz Exhibit A McClellan Road Separated Bikeways-Phase 2 8 of 12 ' A1TACHMENT A · SUPPLEMENTAL TOPOGRAPHI C SURVEY LIMITS I Colk...:t supplt.'mc,ml tup ographi~ 5urvcy ~--~ J I lo • . . ;'i ; ••• . r /· • .,. .. EXHIBIT B SCHEDULE OF PERFORMANCE DESIGN PROFESSIONAL sha ll complete all work by E>erember___.g_l,2-QW7 :.;f..i.:E -zc,, Za "Z. I This Schedule of Performance establishes the milestones for commencement and completion of the Tasks for Basic Services as specified in Exhibit A, Scope of Services . TASK# TASK DESCRIPTION DURATION Task#l Data Collection 3 weeks after Notice to Proceed (NTP) for this Task Task #2 Construction Document Development 14 weeks after Notice to Proceed (NTP) for this Task Task #3 Final (100%) Construction Documents 15 weeks after Notice to Proceed (NTP) for this Task Task #4 Bid and Award Support 24 weeks after Notice to Proceed (NTP) for this Task Task #5 Construction Support 38 weeks after Notice to Proceed (NTP) for this Task ActiveWayz Exhibit B McClellan Road Separated Bikeway s-P h ase 2 9 of 12' EXHIBIT C COMPENSATION Capitali zed terms which are defined in th e Agreement hav e 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 Data Collection $25 ,420 2 Construction Document Development $90,055 3 Final (100%) Construction Documents $14,000 4 Bid and Award Support $6 ,100 Paid on Time and Material Basis 5 Construction Support $14,245 Paid on Time and Material Basis Total for Basic Services:$ --"1'---"4CC...9'--"'8=2=0 _______ _ DESIGN PROFESSIONAL may not bill in excess of the Task Budget amount for any Task without prior written authorization from the CITY . The CITY has the discretion, but not the obligation, to reallocate the budgeted amounts for each Task, subject to the not to exceed limit specified in Section 4 . 2. HOURLY COMPENSATION FOR ADDITIONAL SERVICES A. Hourly Rate Schedule. The CITY will compensate the DESIGN PROFESSIONAL for satisfactory performance of duly authorized Additional Services which are subject to hourly billing, based on the hourly rate(s) set forth below, but subject to the compensation limits in Section 4 of the Agreement. The hourly rates are ActiveWayz Exhibit C McClellan Road Separated Bikeways-Phase 2 10 of 12 ' 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 RA TES ACTIVEWA YZ ENGINEERING Project Manager Project Engineer Design Engineer Engineering Technician Project Coordinator CROSSROAD LAB Project Manager Project Engineer Design Engineer SARRO ASSOCIATES Project Manager HMH ENGINEERS Land Surveying Manager Senior Land Surveyor Project Land Surveyor Surveyor Assistant Surveyor 2-Person Survey Crew 1-Person Survey Crew $180.00 $ 135.00 $ 110.00 $ 75 .00 $ 80.00 $ 165.00 $ 125.00 $115.00 $ 110.00 $ 196.00 $180.00 $ 166.00 $ 158.00 $142.00 $ 264.00 $184.00 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: • Necessary subconsultant services • Individual or multiple document reproductions that exceed 50 pages • Drawing or bid set reproductions to the extent authorized by CITY ActiveWayz Exhibit C McClellan Road Separated Bikeways-Phase 2 11 ofl2 ' ActiveWayz • 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 Exhibit C McClellan Road Separated Bikeways-Phase 2 12ofl2' EXHIBITD 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 adve1tising injury with limits no less than $2,000,000 per occunence (ISO Fonn 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 occunence 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 basis for the benefit of City before the City's own insurance or self- insurance shall be called upon to protect City as a namedinsured. 2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned "t1: V' 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 . J Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant's ~ofession, with limits no less than $2,000,000 per occurrence or $2,000,000 aggregate . If written on a 4, '1!\1;b laims 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 R equirements for D es ign Professionals & Consultants Contracts Form Updated Sept. 2019 1 Additional Insured Status J 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 and automobile liability policies . General Liability coverage can be provided in the form of an endorsement to Consultant's insurance (at least as broad as ISO Fonn CG 20 10 (11 / 85) or both CG 20 10 and CG 20 37 fom1s, iflater 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 Aonsultant waives any right to subrogation against City/ Additional Insureds for recovery of damages to the xtent 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 AM. Best Rating of A-VII, or better. 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 during the 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 minin1ums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant. 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 Requirem ents for D es ign Professionals & Consultants Contracts Form Updated Sept. 2019 2 ACTIENG-01 MERCADOS ACORD" CERTIFICATE OF LIABILITY INSURANCE I DATE (MM /DD/Y YYY ) ~ 1/22/2020 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 2~~IAcT Selena Mercado IOA Insurance Services rtgN~o, Ext): (925) 660-1395 I FA X 3875 Hopyard Road (AIC , No):(925) 416-7869 Suite 200 ioMl~~ss : selena.mercado@ioausa.com Pleasanton, CA 94588 INSURER/Sl AFFORDING COVERAGE NAIC# INSURER A , RLI Insurance Comoanv ~,k-~ \,\ 13056 INSURED INSURER s : Travelers Casualty & Surety Company bf America 31194 Activewayz Engineering Inc INSURER C : ~-\--'.\-NJ\ 7901 Oakport Street INSURER D : Oakland , CA 94612 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 POLIC Y EXP LIMITS I TR INSD WVD /MMIDD/YYYYl /MMIDD/YYYYl A X COMMERC IAL GENERAL LIABILITY 2,000,000 v ✓ EACH OCCURRENCE $ f--D CLA IMS-MADE 0 OCCUR DAMAGE TO RENTED 1,000,000 PSB0006766 1/10/2020 1/10/2021 PREMISES /Ea occurrence\ $ f-- 10,000 MED EXP {Anv one person) $ f-- 2,000,000 PERSONAL & ADV INJURY $ f-- 4,000,000 GE N'L AGGREGATE LIMIT APPLIES PER : GENERAL AGGREGATE $ Fl POLICY 0 ~r8i' □ LO G PRODUCTS -COMP/OP AGG $ 4,000,000 OTHER : $ A AUTOMOBILE LIABILITY COMBINED SINGLE LI MIT 1 ,000,000 PSA0002815 J (Ea accident\ $ f-- X ANY AUTO 11/22/2019 1/10/2021 BODILY INJUR Y (Per person) $ f--OWNED -SCHEDULED f--AUTOS ONLY -AUTOS BODILY INJURY {Per accident) $ HIRED NON-OWNED ITROPERTY,SAMAGE f--AUTOS ON LY -AUTOS ONLY Per accident $ ✓ ✓ $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ f-- EXCESS LIAB CLA IM S-MADE AGGREGATE $ DED I I RETENTION$ $ A WORKERS COMPENSATION X I ~ffTIITF I I OTH - PSW0004079 ✓ ER AND EMPLOYERS " LIABILITY Y/N 1/10/2020 1/10/2021 1,000,000 V ANY PROPRIETOR/PARTNER/EXECUTIVE □ E.L. EACH ACCIDENT $ ~FFICER/MEMBER EXCLUDED? N/A 1,000,000 Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $ If yes, desc,ibe und er E.L. DISEASE -POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS below B Professional Liab 107199547 1/10/2020 1/10/2021 Per Claim 2 ,000,000 v B Professional Liab 107199547 1/10/2020 1/10/2021 Aggregate 2,000,000 ✓ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is requ ir ed) RE : McClellan Bike Lanes Phase The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are Additional Insured on Commercial General Liability Policy/ Hired and Non-Owned Auto Policy as required by written contract. Waiver of Subrogation and Primary and Non-Contributory Provision included on Commercial General Liability Policy/ Non-Owned Auto Policy, as required by written contract. Should any of the above described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. Professional Liability is a claims made policy and includes Waiver of Subrogation Provision as required by written contract. 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 Ave 1r, 10,artinn CA 95014 ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved . The ACORD name and logo are registered marks of ACORD Policy Number: ~ Named In sured : Activ e W .(z Engineering , Inc . RLI Insuranc e Company THIS ENDORSEMENT CHANGES THE POLIC Y. PLEASE READ IT CAREFULLY. RLIPack® FOR PROFESSIONALS BLANKET ADDITIONAL INSURED ENDORSEMENT This endorsement modifies insurance provided und er the following : BUSINESSOWNERS COVERAGE FORM -SECTION II -LIABILITY 1. C. WHO IS AN INSURED is amended to include as an additional insured any person or organization that you agree in a contract or agreement requiring insurance to include as an additional insured on this policy , but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused in whole or in part by you or those acting on your behalf: a. In the performance of your ongoing operations ; b. In connection with premises owned by or rented to you; or c. In connection with "your work " and included within the "product-completed operations hazard ". additional insured under this policy must apply on a primary basis , or a primary and non-contributory basis , this insurance is primary to other insurance that is available to such additional insured which covers such additional insured as a named insured , and we will not share with that other insurance , provided that: a. The "bodily injury" or "property damage" for which coverage is sought occurs after you have entered into that contract or agreement ; or b. The "personal and advertising injury" for which coverage is sought arises out of an offense committed after you have entered into that contract or agreement. 2. The insurance provided to the additional insured by this endorsement is limited as follows: 4. The following is added to SECTION Ill K. 2. a. This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specifically is added by another endorsement to this policy . b. This insurance does not apply to the rendering of or failure to render any "professional services". c. This endorsement does not increase any of the limits of insurance stated in D. Liability And Medical Expenses Limits of Insurance . 3. The following is added to SECTION Ill H.2. Other Insurance -COMMON POLICY CONDITIONS (BUT APPLICABLE ONLY TO SECTION II - LIABILITY) However , if you specifically agree in a contract or agreement that the insurance provided to an Transfer of Rights of Recovery Against Others to Us -COMMON POLICY CONDITIONS (BUT APPLICABLE TO ONLY TO SECTION 11 - LIABILITY) We waive any rights of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal and advertising injury" arising out of "your work" performed by you , or on your behalf , under a contract or agreement with that person or organization . We waive these rights only where you have agreed to do so as part of a contract or agreement with such person or organization entered into by you before the "bodily injury" or "property damage" occurs, or the "personal and advertising injury" offense is committed. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. PPB 304 02 12 Page 1 of 1 Policy Number, p -~ Nam ed Insured : Ar::zng in ee ring , In c. RLI Insurance Company THI S EN DO RS EMENT CH AN G ES THE PO LI CY. PLEASE R EAD IT CAR EFULLY. RLI Pack® BUSINESS AUTO ENHANCEMENT SCHEDUL E OF COV ERAGES ADDR ESSED BY THIS ENDORSEMEN T A. Broad Form Named Insured B. Employees As Insureds C. Blanket Additional Insured D. Blanket Waiver Of Subrogation E. Employee Hired Autos F. Fellow Employee Coverage G. Auto Loan Lease Gap Coverage H. Glass Repair -Wa i ver Of Deductible I. Personal Effects Coverage J. Hired Auto Physical Damage Coverage K. Hired Auto Physical Damage -Loss Of Use L. Hired Car -Worldwide Coverage M . Temporary Transportation Expenses N. Amended Bodily Injury Definition -Mental Anguish 0. Airbag Coverage P. Amended Insured Contract Definition -Railroad Easemen t Q. Coverage Extensions -Audio, Visual And Data Electronic Eq u ipment Not Designed Solely Fo r The Production Of Sound R. Notice Of And Knowledge Of Occurrence S. Unintentional Errors Or Omissions T. Towing Coverage PPA 300 03 13 This endorsement modifies insurance provid ed und er the fo ll owing : BUSINESS AUTO COVERAGE FORM A. Broad Form Named Insured The following is added to the SECTION II - COVERED AUTOS LIABILITY COVERAG E, Para- graph A.1. Who Is An Insured Provision : Any bu s iness entity newly acquired or formed by you during the policy period , provided you own fifty percent (50%) or more of the business entity and the business entity is not separately insured for Bus-iness Auto Coverage . Coverage is extended up to a max imum of one hundred eighty (180) days following the acquisition or formation of the business entity . This provision does not apply to any person or organization for which coverage is excluded by endorsement. B. Employees As Insureds The following is added to the SECTION II - COVERED AUTOS LIABILITY COVERAGE, Para- graph A .1 . Who Is An Insured Provision : Any "employee " of yours is an "insured " while using a covered "auto " you don't own , hire or borrow in your business or your personal affairs . C . Blanket Additional Insured The following is added to the SECTION II - COVERED AUTOS LIABILITY COVERAGE, Para - graph A.1. Who Is An Insured Provision: Any person or organization that you are required to inc lude as an additional insured on this coverage form in a contract or agreement that is executed by you before the "bodily injury" or "property damage" occurs is an "insured " for liability coverage , but only for damages to which this insurance applies and only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured provision contained in SECTION II -COVERED AUTOS LIABILITY COVERAGE . The insurance provided to the additional insured will be on a primary and non-contributory bas is to the additional insured 's own business auto coverage if you are required to do so in a contract or agreement that is executed by you before the "bodily injury " or "property damage " occurs. D. Blanket Waiver Of Subrogation The following is added to the SECTION IV -BUSI - NESS AUTO CONDITIONS, A . Loss Conditions , 5 . Transfer Of Rights Of Recovery Against Others To Us: We waive any right of recovery we may have against any person or organization to the extent required of you by a contract executed prior to any "accident" or "loss ", provided that the "accident" or "loss " arises out PPA 300 03 13 of the operations contemplated by such contract. Th e waiver appli es only to the person or organiz ation designated in such contra ct. E. Employee Hired Autos 1 . The following is add ed to the SECTION II - COVERED AUTOS LIABILITY COVERAGE , Paragraph A.1. Who Is An Insured Provision : An "employee " of you rs is an "insured " while operating an "auto " hired or rented under a contract or agreement in that "employee's " name, with you r permission , while performing duties related to the conduct of your business . 2 . Changes In General Conditions: Paragraph 5.b. of the Other Insurance Con - dition in the BUSINESS AUTO CONDITIONS is deleted and replaced with the following : b . For Hired Auto Physical Damage Coverage , the following are deemed to be covered "autos " you own: (1) Any covered "auto" you lease , hire , rent or borrow; and (2) Any covered "auto" hired or rented by your "employee " under a contract in that individual "employee's " name , with your permission , while performing duties related to the conduct of your business . However, any "auto" that is leased , hired , rented or borrowed with a driver is not a covered "auto ". F. Fellow Employee Coverage SECTION II -COVERED AUTOS LIABILITY COVERAGE, Exclusion B.5. does not apply if you have workers compensation insurance in-force covering all of your employees . G . Auto Loan Lease Gap Coverage SECTION Ill -PHYSICAL DAMAGE COVERAGE, C. Limit Of Insurance, is amended by the addition of the following : In the event of a total "loss " to a covered "auto" shown in the Schedule of Decla rations , we will pay any unpaid amount due on the lease or loan for a covered "auto ", less: 1. The amount paid under the PHYSICAL DAMAGE COVERAGE section of the policy ; and 2 . Any: a. Overdue lease/loan payments at the time of the "loss "; WOR KER S COMP EN SA T IO N AN D EMP LO YERS LIA BILITY INSURANCE POLICY WAIVER OF OUR RIG HT TO RECOVER FROM OTHERS ENDORSEMENT-CALIFORNIA WC 04 03 06 (Ed . 4-84) 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 organizat ion 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 emp lo yees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be __ 2% of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization All persons or organizations that are party to a contract that requires you to obtain this agreement , provided you executed the contract before the loss . Job Description Jobs performed for any person or organization that you have agreed with in a written contract to provide this agreement. 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 this7 .semenfi issued subsequent to preparation of the policy .) Endorsement Effective 01-10-2020 Policy No . P : W0004079 Endorsement No. In sured Active Wayz Engineering , Inc. Countersigned By ©1998 by the Workers ' Compensation Insurance Rating Bureau of California. All rights reserved .