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22-074 Placeworks, Inc. (“Contractor”), a Corporation for 10046 Bianchi Way 10046 Bianchi Way
10046 Bianchi Way Page 1 of 9 Professional/Consulting Contracts /Version: October 2021 PROFESSIONAL/CONSULTING SERVICES AGREEMENT 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”), and Placeworks, Inc. (“Contractor”), a Corporation for 10046 Bianchi Way, and is effective on the last date signed below (“Effective Date”). 2. SERVICES Contractor agrees to provide the services and perform the tasks (“Services”) set forth in detail in Scope of Services, attached here and incorporated as Exhibit A. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 3. TIME OF PERFORMANCE 3.1 This Agreement begins on the Effective Date and ends on June 30, 2022 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on the effective date and shall be completed by June 30, 2022. The City’s appropriate department head or the 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. Contractor must deliver the Services in accordance with the Schedule of Performance, attached and incorporated here Exhibit B. 3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $27,439.00 (“Contract Price”), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City. 4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable completed and the amount due for the preceding month. Within thirty (30) days of completion of Services, Contractor must submit a requisition for final and complete payment of costs and pending 10046 Bianchi Way Page 2 of 9 Professional/Consulting Contracts /Version: October 2021 claims for City approval. Failure to timely submit a complete and accurate payment requisi tion relieves City of any further payment or other obligations under the Agreement. 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits, worker’s compensation, or other benefits from the City. 5.2 Contractor’s Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Services in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Services as required by law and have procured a City Business License, if required by the Cupertino Municipal Code. 5.4 Subcontractors. Only Contractor’s employees are authorized to work under this Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approved subcontractor. 5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement. 5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, p ersonal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’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 Contractor. 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, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Agreement are not greater than they would have been had the determination not been made. 6. PROPRIETARY/CONFIDENTIAL INFORMATION In performing this Agreement, Contractor 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. Contractor shall hold in confidence all City information provided by City to Contractor and use it only to perform this Agreement. 10046 Bianchi Way Page 3 of 9 Professional/Consulting Contracts /Version: October 2021 Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium (collectively, “Work Product”), prepared by Contractor in connection with this Agreement will be the exclusive property of the City upon completion of the work to be performed hereunder or upon termination of this Agreement, to the extent requested by City. In any case, no Work Product shall be shown to any third-party without prior written approval of City. 7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all Work Product arising out of this Agreement is considered “works for hire” and all copyrights to the Work Product will be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights. Contractor may use copies of the Work Product for promotion only with City’s written approval. 7.3 Patents and Licenses. Contractor 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 Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of the following: (a) The original Services for which Contractor was hired; (b) Completion of the original Services by others; (c) Subsequent additions to the original Services; and/or (d) Other City projects. 7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work Product, on recycled paper and copied on both sides, except for one single-sided original. 8. RECORDS Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor’s performance, benchmarks and deliverables, which must be available to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four (4) years from the date of City’s final payment. Contractor acknowledges that certain documents generated or received by Contractor in connection with the performance of this Agreement, including but not limited to correspondence between Contractor and any third party, are public records under the California Public Records 10046 Bianchi Way Page 4 of 9 Professional/Consulting Contracts /Version: October 2021 Act, California Government Code section 6250 et seq. Contractor shall comply with all laws regarding the retention of public records and shall make such records available to the City upon request by the City, or in such manner as the City reasonably directs that such records be provided. 9. ASSIGNMENT Contractor 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 Contractor as a legal entity is considered an assignment of the Agreement and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. 10. PUBLICITY / SIGNS Any publicity generated by Contractor 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 Contract, 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 and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees , agents, servants, volunteers, and consultants (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) of every nature, arising directly or indirectly from this Agreement or in any manner relating to any of the following: (a) Breach of contract, obligations, representations, or warranties; (b) Negligent or willful acts or omissions committed during performance of the Services; (c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; (d) Unauthorized use or disclosure of City’s confidential and proprietary Information; (e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim. At City’s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Agreement. 11.3 Contractor’s duties under this section are not limited to the Contract Price, workers’ compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in 10046 Bianchi Way Page 5 of 9 Professional/Consulting Contracts /Version: October 2021 the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee. 11.4. Contractor’s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement, a purchase order, or other transaction. 11.5. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance 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. 11.6. This Section 11 shall survive termination of the Agreement. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor’s compensation or terminating the Agreement. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor’s ability to perform. Contractor is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act. 13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a “public works” component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. 13.3 Discrimination Laws. Contractor 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. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or its employees or sub-contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 10046 Bianchi Way Page 6 of 9 Professional/Consulting Contracts /Version: October 2021 13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor 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. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of Regulations. Contractor agrees to abide by the City’s rules governing gifts to public officials and employees. 13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek indemnification under Section 11 of this Agreement. 14. PROJECT COORDINATION City Project Manager. The City assigns Erika Poveda as the City’s representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. City reserves the right to substitute another Project manager at any time, and without prior notice to Contractor. Contractor Project Manager. Subject to City approval, Contractor assigns Terri McCracken as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor’s Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City’s Project Manager about the progress with the work or any delays, as required under the Scope of Services. City written approval is required prior to substituting a new Representative. 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project or parts therefor at any time. Contractor 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. With City’s pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum of ten percent (10%) of the total time expended to date in the performance of the Services. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Contractor closes out the Services and delivers the Work Product. 17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of 10046 Bianchi Way Page 7 of 9 Professional/Consulting Contracts /Version: October 2021 California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor 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. 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 a breach shall not constitute waiver of another provision or breach. 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of ever y kind or nature between the Parties, and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties. 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 the main Agreement and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling. 22. INSERTED PROVISIONS Each provision and clause required by law for this Agreement is deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. The Parties will collaborate to implement this Section, as appropriate. 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 10046 Bianchi Way Page 8 of 9 Professional/Consulting Contracts /Version: October 2021 Agreement or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this Agreement to carry out its intent. 25. SURVIVAL All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law, and Attorney Fees, shall survive the Agreement and remain in full force and effect. 26. NOTICES All notices, requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the 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 Office of the City Manager 10300 Torre Ave. Cupertino, CA 95014 Attention: Erika Poveda Email: ErikaP@cupertino.org To Contractor: Placeworks, Inc. 3 MacArthur Pl, Ste. 1100 Santa Ana, CA 92707 Attention: Terri McCracken Email: tmccracken@placeworks.com 27. EXECUTION The person executing this Agreement on behalf of Contractor represents and warrants that Contractor has full right, power, and authority to enter into and carry out all actions contemplated by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Contractor. 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. CITY OF CUPERTINO CONTRACTOR A Municipal Corporation By By Name Name Title Title Date Date Terri McCracken Associate Principal May 25, 2022 Benjamin Fu Director May 26, 2022 10046 Bianchi Way Page 9 of 9 Professional/Consulting Contracts /Version: October 2021 APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Christopher D. Jensen May 26, 2022 April 25, 2022 Erika Poveda, Associate Planner City of Cupertino Planning Department 10300 Torre Avenue Cupertino, CA 95014 Re: Proposal to Prepare CEQA Review Documents for the Bianchi Way Townhomes Project Dear Ms. Poveda: Please accept the attached submittal as PlaceWorks’ proposal to prepare the CEQA Review Documents for the Bianchi Way Townhomes Development for the City of Cupertino. This proposal was prepared in response to your e-mail request for proposal on April 18, 2022. Understanding of the Project The City received an application for the construction of a six-unit townhome development at 10046 Bianchi Way (addresses for the project site also include 10040 Bianchi Way, 10042 Bianchi Way, and 10044 Bianchi Way). The project site is assigned Assessor Parcel Number or APN 359-07-021. The General Plan land use designation is Commercial/Office/Residential and the Zoning District is Planned Development with General Commercial with Residential (P(CG,RES)). Existing regulations in the Heart of the City Special Area allow up to 25 dwelling units per acre. The project site is in an urbanized area in the vicinity of the Whole Foods Market and commercial uses to the north, the Union Church of Cupertino and commercial uses to the east, multi-family residences and William Faria Elementary School to the south, and restaurants and multi-family residences to the west. According to Plan Bay Area, the proposed project is located within a Santa Clara Valley Transportation Authority (VTA) City Cores, Corridors & Station Areas Priority Development Area (PDA). The project site is located within a Transit Priority Area (TPA) because it is within 0.25 miles of the De Anza College major transit stop,1 which provides stops with a bus frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods along VTA bus routes 23, 25, 51, 51H, and 55. The project site currently consists of two single-story, multi-family residential buildings with a combined total of four residential units. PlaceWorks received a Phase I Environmental Site Assessment (ESA) 1 Public Resources Code, Section 21064.3 states that a ‘major transit stop’ is a site containing an existing rail transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods. Page 2 of 8 prepared in 2020 for the project site.2 According to the Phase I ESA and the City of Cupertino Property Information GIS Application at that time, by 1956, agricultural operations on the site were ceased (10040 and 10046 Bianchi Way) and the site was developed with the two existing residential buildings. The project site currently includes driveways and garages associated with the multi-family residences, and ornamental landscaping along the edges of the property and in the courtyard of the multi-family residences. The proposed project would include demolition of the existing four residential units (2,256 square- foot multi-family residential building), and the construction of six townhomes with a tentative map for a six-unit subdivision. The proposed project would include a parking exception to allow for less on-site parking than is required by City code. For the purposes of this scope of work, we assume the proposed project would result in 11 net new daily trips, 1 net new AM (morning) peak hour trips, and 1 net new PM (evening) peak hour trips.3 Scope of Work TASK A. INITIAL STUDY Task A.1. Project Management and Meetings Terri McCracken, Principal-in-Charge, will oversee all aspects of the project. She will participate in all meetings and review all drafts of the environmental review documents. Allison Dagg, Project Manager, will serve as the day-to-day contact for project management and will be responsible for managing the budget, schedule, and overall team coordination throughout the preparation of the environmental review documents. This task includes up to four status meetings with the City and others involved in the project, such as the applicant or outside counsel, as requested by the City. These meetings are proposed to maintain close, effective communication between project team members and to resolve any unforeseen issues in a timely manner. The meetings are intended to be focused discussions bringing together City staff, PlaceWorks, and other team members as needed. The status meetings would be in addition to regular email and phone communication between project team members. 2 ACC Environmental Consultants, 2020. Phase I Environmental Site Assessment Report, 20940 Stevens Creek Boulevard and 1004 & 10046 Bianchi Way, Cupertino, CA 95014, Project Number: 5539-001.00, August 13. 3 Trip generation based on average rates contained in the ITE Trip Generation Manual, 10th Edition, for Multifamily Housing Mid-Rise (Land Use 221) located in a General Urban/Suburban setting. Daily rates = 5.44 trips per residential unit; AM Peak Hour Trip Rates = 0.36 per residential unit; PM Peak Hour Trip Rates = 0.44 per residential unit. Exhibit A Page 3 of 8 Task A.2. Kick-off Meeting PlaceWorks will participate in a kick-off meeting with the City to review the scope of work, available information, schedule, and work products. This scope of work assumes this meeting will be conducted as a virtual meeting (e.g., Zoom or Teams, etc.). Task A.3. Project Description Following the kick-off meeting, PlaceWorks will prepare a detailed, yet brief, Project Description of the proposed residential project. Task A.4. Initial Study Document Using the City-approved Project Description, PlaceWorks will prepare an Initial Study for evaluation by the City’s Environmental Review Committee (ERC). Pursuant to Cupertino Municipal Code Section 2.84.080, Duties–Powers–Responsibilities, the ERC will use the Initial Study to determine the appropriate CEQA document for the environmental analysis of the proposed project. The Initial Study will include the CEQA Guidelines Appendix G, Environmental Checklist Form, and document existing conditions and project impacts (if any), as well as the resulting level of significance for potential impacts under each of the topical areas required under CEQA. CEQA permits the exclusion of environmental issues on which it can be ascertained with certainty that the project would have no significant negative impact. Accordingly, the Initial Study will only briefly address those issue areas that would not be impacted by the proposed project or where it can be demonstrated that regulatory standards and standard conditions of approval will address the checklist significance criteria. As stated above, the project site is located within a PDA and a TPA, and therefore pursuant to CEQA Guidelines Section 15064.3, subdivision (b)(1) and the Cupertino Municipal Code Section 17.08.030.B.1., the proposed residential-use project would have a less-than-significant VMT impact. Subsequently, pursuant to the CEQA Statute Section 20199(d), aesthetics shall not be considered a significant environmental impact. For these reasons, and based on the project location and its previously developed nature, it is expected that the environmental topics of aesthetics, agricultural and forestry resources, mineral resources, vehicle miles traveled, and wildfire will be briefly addressed and dismissed from detailed analysis in the Initial Study. In keeping with the requirements of the CEQA, the environmental checklist will include a detailed analysis to determine the environmental impacts of the following resource categories: Air Quality Biological Resources Cultural and Tribal Cultural Resources Energy Geology and Soils Greenhouse Gas Emissions Hazards and Hazardous Materials Hydrology and Water Quality Land Use and Planning Noise Population and Housing Public Services and Recreation Transportation Utilities and Service System Page 4 of 8 Task A will include the following deliverables: ▪One (1) electronic copy of an Administrative Draft Project Description to the City for review. Staff will provide PlaceWorks with comments on the Administrative Draft Project Description. ▪One (1) electronic copy of an Administrative Draft Initial Study, which will include a revised, second draft of the Project Description. ▪One (1) electronic copy of a Final Draft of the Initial Study. PlaceWorks assumes that a minimal level of effort, not exceeding four hours, would be required to respond to any comments from the City on the Administrative Draft Initial Study. Task A.5. Environmental Review Committee Our scope of work assumes that up to two PlaceWorks staff members will participate one either virtually, in-person, or hybrid Environmental Review Committee Meeting if requested by the City. TASK B. NOTICE OF EXEMPTION Task B.1. Notice of Exemption Document Based on the Initial Study, the ERC will determine what level of CEQA analysis is appropriate for the proposed project. However, for the purposes of this scope of work, based on our understanding of the project to date, the CEQA Guidelines Section 15332, Class 32 (Infill Development Projects) exemption, is anticipated to be appropriate. Pursuant to the CEQA Guidelines Section 15332, the use of the infill exemption is appropriate if: a.The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. b.The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. c.The project site has no value as habitat for endangered, rare or threatened species. d.Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. e.The site can be adequately served by all required utilities and public services. This task assumes that the ERC will recommend the preparation of a Notice of Exemption (NOE). As required by CEQA Guidelines Section 15332, the NOE will demonstrate how the proposed project would not result in any significant effects relating to biological resources, traffic, noise, air quality, or water quality. While the proposed residential project would not result in a change in the land use, and operational impacts are not anticipated with the addition of two new units, because the proximity to the adjacent Page 5 of 8 residences to the north and south (less than 15 feet) technical analysis is required to demonstrate that construction impacts to noise-sensitive receptors related to noise and vibration4 would not occur. We will prepare an assessment of temporary vibration impacts during demolition, site preparation, grading, building construction, and paving activities using scheduling, equipment mix, and hauling information (as provided by the applicant). The vibration impacts will be assessed pursuant to criteria included in the Federal Transit Administration’s guidelines on noise and vibration impact assessment. As described above, the traffic volumes with the proposed project are anticipated to increase by only 11 daily trips, 1 AM (morning) peak hour trips, and 1 PM (evening) peak hour trips when compared to existing conditions and, therefore, traffic noise will be addressed qualitatively. Given that stationary noise sources such as heating, ventilation, and air conditioning equipment currently exist on the site, and newer equipment with the proposed project is assumed to be more efficient, the potential impacts from these noise sources will also be addressed qualitatively. Vibration minimization measures, as described in Cupertino Municipal Code Section 17.04.040, Standard Environmental Protection Technical Report Submittal Requirements, D. Vibration Technical Report Requirements, will be recommended, as appropriate, to reduce vibration impacts. Pursuant to the recommendations of the Phase I ESA and consistent with the Cupertino Municipal Code Section 17.04.040, Standard Environmental Protection Technical Report Submittal Requirements, B. Hazardous Materials Technical Report Requirements, additional soil testing is required prior to project approval and issuance of City permits for construction and operation. As previously stated, the site was occupied by agricultural uses after the year 1950, therefore residual concentrations of pesticides and metals typically associated with historical agricultural practices could be on the site and pose an impact to construction workers or off-site residents during grading or trenching. The purpose of the sampling is to assess appropriate handling protocol. PlaceWorks assumes the project applicant will conduct these tests, if they have not already done so, prior to release of the NOE. Using the results of the vibration technical analysis, the additional soil sampling, and substantial evidence based on the environmental setting of the project site and existing regulations, PlaceWorks will prepare an NOE pursuant to CEQA Guidelines Section 15062 (Notice of Exemption) that identifies the applicable exemption(s) and describes why the “exceptions” to the categorical exemptions analysis per CEQA Guidelines Section 15300.2 (Exceptions) do not apply. The NOE will be submitted to the City for review, as follows: ▪One (1) electronic copy of an Administrative Draft NOE to the City for review. Staff will provide PlaceWorks with comments on the Administrative Draft NOE. ▪One (1) electronic copy of a revised, second draft as an electronic “Screencheck”. PlaceWorks assumes that a minimal level of effort, not exceeding four hours, would be required to respond to any comments from the City on the Screencheck Draft NOE. 4 Cupertino Municipal Code Section 17.04.040, Standard Environmental Protection Technical Report Submittal Requirements, D. Vibration Technical Report Requirements. Page 6 of 8 ▪Following approval of the Screencheck, PlaceWorks will provide the City with one (1) electronic copy of the Final NOE. If it is determined that potential impacts from construction or operation of the proposed project require changes to the project or mitigation measures to reduce impacts to a less-than-significant level, or that a different environmental review is required, PlaceWorks will work with City staff to discuss next steps and modify scope of work, budget, and schedule as appropriate. With respect to compliance with Assembly Bill (AB) 52, the City has a formal request to consult with the Tamien Nation on all applicable projects. If the ERC recommends the NOE or other form of exemption, then no consultation is required because there is no public circulation of this CEQA document. However, if the ERC should recommend the preparation of a CEQA document that requires public circulation (Negative Declaration, Mitigated Negative Declaration, or an Environmental Impact Report), the consultation with the Tamien Nation would be required. Task B.2. Approval Hearings and Notice of Determination Our scope of work allows for PlaceWorks to participate in up to two (2) hearings on consideration of the approval of the project and NOE as requested by the City. Following the approval of the project and the NOE, PlaceWorks will prepare the Notice of Determination (NOD). Our scope of work assumes that City staff will be responsible for overseeing the filing of the NOE and NOD with the County Clerk following the approval of the proposed project. Proposed Schedule Our proposed schedule includes two-week review periods for the City at each submittal phase and conservatively assumes the scheduling of approval hearings on the second date for each approval body. Applying these assumptions, and depending on the receipt of all the project materials, we anticipate that the Initial Study for review by the ERC and the NOE, if the preferred CEQA document by the ERC, can be completed within six (6) months maximum. We believe this schedule is in keeping with your needs, but we are happy to revise this schedule as necessary. See Figure 1, Schedule, below. Figure 1. Schedule Owner 4/29 5/6 5/13 5/20 5/27 6/3 6/10 6/17 6/24 7/1 7/8 7/15 7/22 7/29 8/5 8/12 8/19 8/26 9/2 9/9 9/16 9/23 9/30 10/7 10/14 10/21 10/28 Apr.May October 2022 SeptemberJuneAugustJuly Task CityIssue Notice to Proceed Task A. Initial Study City/PlaceWorks City/PlaceWorks2. Kick-Off Meeting (Virtual) 1. Project Management and Meetings (scheduled as needed) City/PlaceWorks3. Project Description City/PlaceWorks City/PlaceWorks 4. Initial Study Document (2 drafts) 5. Environmental Review Committee Task B. Notice of Exemption City/PlaceWorks City/PlaceWorks Meeting Days/Time/Location City City Observed Holidays PlaceWorks Meetings and Hearings Key: 1. Notice of Exemption Document (2 drafts) 2. Approval Hearings and Notice of Determination Planning Commission: 2nd and 4th Tuesday at 6:45 p.m. (Virtual or Community Hall Council Chamber) Environmental Review Committee: 1st and 3rd Thursday at 9:30 a.m. (Virtual or Conference Room C) Review Periods Note. Our time estimates conservatively assume the second meeting times for each approval body. City Council: 1st and 3rd Tuesday at 6:45 p.m. (Virtual or Community Hall Council Chamber) Exhibit B Page 7 of 8 Cost Estimate As shown in Table 1, Cost Estimate, the estimated cost to complete the scope of work described in this proposal is $27,439. This fee includes a 10 percent contingency fund to cover any unforeseen, out-of- scope work that might be necessary for the project. The PlaceWorks team will complete this scope of work for a fixed fee not to exceed this amount. PlaceWorks bills for its work on a time-and-materials basis with monthly invoices. Table 1. Cost Estimate Assumptions This scope of work and cost estimate assumes that: ▪Our cost estimate includes participation in a project kick-off meeting and up to three (3) public hearings. We anticipate that the public hearing meeting will last up to two (2) hours. Additional meetings would be billed on a time-and-materials basis. ▪All administrative draft products will be submitted as electronic files in Word and PDF formats. Our printing assumptions include five hard copies of the final NOE if requested by the City All other printing costs, if requested, will be billed at PlaceWorks’ actual cost. Acknowledgement This proposal shall remain valid for a period of 90 days from the time of submittal. As Associate Principal, I am authorized to bind PlaceWorks and the project team to the contents of this proposal. We look forward to working with you to bring about the successful completion of this project. If you have any questions regarding the contents of this proposal, please feel free to contact the undersigned. McCracken Dagg Garcia Healey Parks GRAPHICS TECH. EDITOR Principal Project Manager Noise Planner AQ/GHG Hourly Rate:$230 $155 $155 $130 $125 $115 $115 TASK A. INITIAL STUDY 1 Project Management 4 6 10 $37 $1,887 $1,887 2 Kick-off Meeting 2 2 4 $15 $785 $785 3 Project Description 2 6 1 1 10 $32 $1,652 $1,652 4 Initial Study Document 6 10 16 1 1 34 $105 $5,345 $5,345 5 Environmental Review Committee 2 2 4 $15 $785 $785 Task A. Subtotal 16 26 0 16 0 2 2 62 $204 $10,454 $10,454 TASK B. NOTICE OF EXEMPTION 1 Notice of Exemption Document 10 20 26 16 4 2 78 $245 $12,485 $12,485 2 Approval 4 4 8 $31 $1,571 $1,571 Task B. Subtotal 14 24 26 16 4 0 2 86 $276 $14,056 $14,056 Labor Hours Total 30 50 26 32 4 2 4 148 Labor Dollars Total $6,900 $7,750 $4,030 $4,160 $500 $230 $460 $480 $24,510 $24,510 PlaceWorks Percent of Total Labor 20%34%18%22%3%1%3% EXPENSES PlaceWorks Reimbursable Expenses $434 EXPENSES TOTAL $434 $2,494 GRAND TOTAL $27,439 10% Contingency PLACEWORKS Total Task Budget PlaceWorks Hours PlaceWorks Total PlaceWorks 2% Office Expenses Exhibit C Page 8 of 8 Respectfully submitted, PlaceWorks Terri McCracken Associate Principal Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 1 Form Updated Jan. 2022 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 10 (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 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. 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 claim, $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. EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 2 Form Updated Jan. 2022 OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: 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 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 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, 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 minimums 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. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2016 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY B 5,000,000 EPK135992 Rosalynda Martinez 5,000,000 LOS-002212059-25 1,000,000 4,000,000 X 25674 4,000,000 of Marsh Risk & Insurance Services Irvine, CA 92614 N X Comp/Coll Deductibles BI & PD Ded. $5,000 07/01/2021 3 07/01/2022 07/01/2021 07/01/2022 BA1N96406A2143G Errors & Omissions-Claims Made B 5,000,000 5,000,000 Travelers Property Casualty Co. Of America 1,000,000 X A X Liability. Waiver of subrogation is applicable where required by written contract with respect to General and Auto Liability. 1,000 X 06/23/2021 07/01/2021 5,000,000 Re: IS/MND Cupertino CA The City of Cupertino, its city council, boards and commissioners, officers, employees, and volunteers are included as additional insured where required by written contract with respect to General and Auto Liability. X Contractors Pollution Cupertino, CA 95014 City of Cupertino This insurance is primary and non-contributory over any existing insurance and limited to liability arising out of the operations of the named insured and where required by written contract with respect to General X A CN115158923-01-01-21-22 Each Claim/Aggregate 5,000 07/01/2022 1,000,000 EX6J3287562143 Retro Dates: See 2nd Page 5,000,000 44520 50,000 1,000,000 07/01/2022 UB7K7286762143G 17901 Von Karman Avenue, Suite 1100 Marsh Risk & Insurance Services X (949) 399-5800; License #0437153 Attn: NewportBeach.CertRequest@marsh.com/F: 212-948-4323 3 MacArthur Place, Suite 1100 PlaceWorks, Inc Santa Ana, CA 92707 EPK135992 07/01/2021 10300 Toree Ave. X X 07/01/2021 B X 07/01/2022 Crum & Forster Specialty Insurance Co X 10046 Bianchi Way Final Audit Report 2022-05-26 Created:2022-05-24 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAA6_1EodVNZRwrZNGN2JNJBmUjkIpPtejF "10046 Bianchi Way" History Document created by City of Cupertino (webmaster@cupertino.org) 2022-05-24 - 9:50:01 PM GMT- IP address: 35.229.54.2 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2022-05-24 - 9:52:03 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2022-05-25 - 5:22:54 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Terri McCracken (tmccracken@placeworks.com) for signature 2022-05-25 - 5:22:56 PM GMT Email viewed by Terri McCracken (tmccracken@placeworks.com) 2022-05-25 - 7:57:07 PM GMT- IP address: 24.7.104.241 Document e-signed by Terri McCracken (tmccracken@placeworks.com) Signature Date: 2022-05-25 - 7:57:36 PM GMT - Time Source: server- IP address: 24.7.104.241 Document emailed to Christopher D. 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Jensen (christopherj@cupertino.org) Signature Date: 2022-05-25 - 8:04:25 PM GMT - Time Source: server- IP address: 136.24.42.212 Document emailed to Benjamin Fu (benjaminf@cupertino.org) for signature 2022-05-25 - 8:04:27 PM GMT Email viewed by Benjamin Fu (benjaminf@cupertino.org) 2022-05-26 - 7:06:20 AM GMT- IP address: 104.28.123.69 Document e-signed by Benjamin Fu (benjaminf@cupertino.org) Signature Date: 2022-05-26 - 8:19:59 PM GMT - Time Source: server- IP address: 73.189.98.179 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2022-05-26 - 8:20:01 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2022-05-26 - 8:37:07 PM GMT- IP address: 104.28.123.181 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2022-05-26 - 8:37:18 PM GMT - Time Source: server- IP address: 104.28.124.182 Agreement completed. 2022-05-26 - 8:37:18 PM GMT