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02-096 Clearly Consultants~-b°~`P ~~~ CiiY OF ~~PE~TI~ AGREEMENT CITY OF CIIPERTINO 10300 TorrE~ Avenue Cupertino, CA 95014 (408) 7T7-3200 NO.~~~~J BY THIS AGREEMENT, made and entered into on the 23rd day of S'-'PT . "li 'R , 20 Qom, by and between the CITY OF CUPERTINO (Hereinafter referred to a:~ CITY) and Name (1) T.. RY .ONS TT.TANTS, TN(:_ _ (2) Address 900 N. SAN ANTONIO ROAD City LOS ALTOS Zip 94022 Phone (650) 948-0574 (Hereinafter referred as CONTRACTOR), in consideration of their mutual covenants, the parties hereto agree as follows: CONTRACTOR shall provide or furnish the following specified servicf~s and/or materials: SOIL ENGINEERING SERVICES DURING CONSTRUCTION OF STEVENS CANYON ROAD WIDENING PROJECT EXHIBITS: The following attached exhibits hereby are made part of t~is Agreement: SEE ATTACHED EXHIBIT "A" PROPOSAL TERMS: The services and/or materials furnished under this Agreement shall commence on SEPTEMBER 23, 2002 and shall be completed before FEBRUARY 28, 2003 COMPENSATION: For the full performance of this Agreement, CITY shall pay CONTRACTOR: NOT TO EXCEED $14,700.00 California Labor Code, Section 1771 requires the payment of prevailing wages to all workers employed on a Public Works contract in excess of $1,000.00. GENERAL TERMS AND CONDITIONS Hold Harmless: Contractor agrees to save and hold harmless the City, its officers, agents and employees from any and all damage and liability 'ncluding all costs of defending any claim, caused by or arising out of the performance of this Agreement. City shall not be liabl for acts of Contractor in performing services described herein. GMT due to negligence, errors and omissions ~~ c.~>~~ ~r«~~ /~~2 Insurance: Should the City require evidence of insurability, Contractor shall file with City a Certificate of Insurance before commencing any services under this Agreement. Said Certificate shall be subject to the approval of City's Director of Administrative Services. Non-Discrimination: No discrimination shall be made in the employment of persons under this Agreement because of the race, color, national origin, ancestry, religion or sex of such person. Interest of Contractor: It is understood and agreed that this Agreement is not a contract of employment in the sense that the relationship of master and servant exists between City and undersigned. At all times, Contractor shall be deemed to be an independent contractor and Contractor is not authorized to bind the City to any contracts or other obligations in executing this agreement. Contractor certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of City. Changes: This Agreement shall not be assigned or transferred without the written consent of the City. No changes or variations of any kind are authorized without the written consent of the City. CONTRACT CO-ORDINATOR and representative for CITY shall be: NAME (:ARMF.N LYNAUGH _ DEPARTMENT PUBT•TC WORKS This Agreement shall become effective upon its execution by CITY, in witness thereof, the parties have executed this Agreement the day and year first written above. CONTRACTOR: CITY OF UPERTINO: ; ~' ~~' ~~ ~ (~ By ~~~ e,y a/~'r-~~.... Title ~ ~ Title ArrR~VALS n _ s / EXPENDITURE DISTRIBUTIO~~ EA D ~'/ ACCOUNT NUMBER AMOU CITY E~G~~/v~i ~ DATE ~~////CC~~ l° i `f U a 270- 430- 300 1 0 0 White: City Clerk V Green: Finance Yellow: Contractor Pink: Receiving Gold: Department cc 'CLEARY CONSULTANTS, INC. Geotechnical Engineers and Geologists P116LIC WpRKS 5 ~ R 2 3 ~00~ Ms. Carmen Lynaugh City of Cupertino, Public Works Department 10300 Torre Avenue Cupertino, CA 95014 J. Michael Cleary, CEG, GE Grant F. Foster, PE Christophe A. Ciechanowski, PE September 19, 2002 Project No. 347.15 Ser. 8386 RE: UPDATED PROPOSAL FOR SOIL. ENGINEERING SERVICES DURING CONSTRUCTION STEVENS CANYON ROAD IMPROVEMENTS, PROJECT NO. 98-120 CITY OF CUPERTINO CUPERTINO, CALIFORNIA Dear Ms. Lynaugh: Introduction As you requested, we are submitting this updated proposal to provide soil engineering observation and testing services for the Stevens Canyon Road ];mprovements project between Balboa Road and the entrance to Stevens Creek County Park in Cupertino, California. We understand that the scope of the project has been modified since our original proposal (dated July 5, 2000) was submitted to the City of Cupertino. Based on the most recent plans prepared by B KF dated September 17, 2002, the maximum retaining wall height for the project will be 15 fE~et and the retaining walls will be supported on spread footing foundations. The existing pavement section will be overlayed, with the exception of distressed pavement areas and widened areas which will be paved with a "deep lift" asphalt section. Drainage improvements are also planned along the alignment which will consist of new underground CMP culverts, energy dissipaters, curbs, catch basins and rip rap-lined outfalls. Minor slope re-grading is also shown on the plans near Balboa Road. Scope of Services Based on the proposed construction described ~ibove, our scope of services for the widening project will include observation of wall foundation excavations, slope grading, wall backfill compaction, utility trench backfill compaction, subgrade preparation and baserock compaction for 900 N. SAN ANTONIO ROAD LOS ALTOS, CALIFOIINIA 94022 (650) 948-0574 FAX (650) 948-7761 e-mail: clearyconsultants~att.net Ms. Carmen Lynaugh City of Cupertino, Public Works Department September 19, 2002 Page 2 new roadway, drainage improvements, and wall backdrain installation. We understand that the project duration will last 75 working days. Specific details of the contractor's schedule to complete the various phases of the work are not known, therefore we propose to provide our services on an hourly time and materials basis. The scope of our services will include full time to intermittent on-site observations and field density testing (rough estimate of required man-days in parentheses) as required for the following: 1. Observation of wall footing excavations (2.0 MD) 2. Wall backfill compaction for road widening (5.0 MD) 3. Roadway and drainage improvements, subgrade preparation and baserock compaction (5.0 MD) 4. Wall backdrain installation (1.0 MD) 5. Utility trench backfill compaction (3.C- MD) 6. Slope grading (2.0 MD) 7. Plan Review and Consultation (3.0 MD)* *Note: This item includes unbilled plan review and consultation services performed for the project during the previous 1:! months. Arrangements Our field observation services including office sups°rvision, and the necessary office and laboratory work, will be provided in accordance with the terms and rates of our Schedule of Fees and Conditions presented on the reverse side of the Dist page of this proposal. Usually, the cost of our services on the basis of fill-time observation and testing during a normal eight-hour work day would be about $700 per day, $350 per half-day, and $120 minimum per site visit. These estimates include field and office supervision and laboratory testing. Consultations and report preparation are billed in addition at the appropriate hourly rate. We project that our services for this project as shown above will total <<pproximately 21 man-days. The estimated total cost of our services is approximately $14,700. Our billings will be submitted monthly or upon completion of those phases of the work involvin€; our services. CLEARY CONSULTANTS, INC. Ms. Carmen Lynaugh City of Cupertino, Public Works Department September 19, 2002 Page 3 This budget is based on the estimated time periods to complete the work as presented above. Delays due to inclement weather, construction periods longer or shorter than those estimated, or reinspection/retesting of unsatisfactory work could result in an increase or decrease of our costs accordingly. All services rendered by us consist of professional opinions and recommendations made in accordance with generally accepted soil and foundation engineering principles and practices. This warranty is in lieu of all other warranties, either expressed or implied. Under no circumstances is it our intent to directl}~ control the physical activities of the contractor or the contractor's workmen's accomplishment of work on this project. The presence of our field representative at the site is to provide the City with a continuing source of professional advice, opinions, and recommendations based on the field representative's observation of the contractor's work and does not include any superintending, supervision, or direction of the actual work of the contractor or the contractor's workmen. Any construction review of the contractor's performance conducted by us is not intended to include and does not include review of the adequacy of the contractor's safety measures in, on, or near the job site. As our authorization to provide the above services, please sign and return one copy of this proposal agreement. If you have any questions regarding the scope of our services, please call. Yours very truly, CLEARY CONSULTANTS, INC. ~~~~ Grant Foster Civil Engineer 60357 GF/JMC : cm Copies: Addressee (2) Brian Kangas Foulk (1) Attn: Fletcher Parsons AUTHORIZATION Approved By J. Michael Cleary Geotechnical Engineer 222 Date CLEARY CONSULTANTS, INC. CLEARY CONSULTANTS. INC. , SCHEDULE OF FEES AND CONDITIONS PERSONNEL CHARGES Administrative Assistant ................................................................................... 40.00/i:r Draftsman .......................:...................................................................: 50.00/hr Staff Engineer/Staff Engineering Geologist ....................................................................... 70.60/lir Senior Engineering Teclttticiatt ............................................................................... 75.00/Itr Project Engineer/Project Engineering Geologist ................................. m.................................. 85.00/Itr Senior Project Engineer/Senior Project Engineering Geologist ........................................................... 95.00/hr Senior Engineer/Senior Engineering Geologist .................................................................... 11(1.00/hr Principal ........................................................................................... $135.00/hr* *Expert witness fees for appearance at court and depositions are $1600/day ;ind $800 half day. There is a minimum of one-half day for all court and deposition appearances. EQUIPMENT CHARGES Automobile .........................................................................................$ 0.45/mile Mobile Laboratory .................................................................................... 5.00/hour Nuclear Moisture/Density Gauge ............................................................................. 5.00/test MISCELLANEOUS CHARGES Drilling services, printing and reproduction, special and consultant fees, permits, insurance, equipment and vessel rental, travel and subsistence expenses and other similar related costs are billed at cost plus 12 percent Copies of previously issued reports will be billed at $25.00 for the first copy and $10.00 for each additional copy, or at cost of reproduction for larger reports. STANDARD OF CARE Cleary Consultants, Inc. (CCI) under this Agreement will strive to conduct services in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions. No other warranty, expressed or implied, is made. Client recognizes that subsurface conditions may vary from those encountered at the locations where our borings, surveys, or explorations are made and that our data, interpretations and recommendations are based solely on the information available to us. We will he responsible for those data, interpretations, and recommendations but shall not be responsible for the interpretation by others of the information developed. RIGHT OF ENTRY The Client shall provide for CCI's right of entry and all our necessary equipment, in order to complete the work. While CCI shall take all reasonable precautions to minimize any damage to the property, it is understood by Client that in the normal course of work some damage may occur, the correction of which is not part of this Agreement. GENERAL LIABILITY INSURANCE CCI represents and warrants that it is protected by worker's compensation insurance and -.hat we have such coverage under public liability and property damage insurance policies which we deem to be adequate. Certificates for all such policies of insurance shall be prov ded to Client upon request in writing. Within the limits and conditions of such insurance, we agree to indemnify and save Client harmless from and against any loss, damage, or liability arising from any negligent acts by CCI and its staff. We shall not be responsible for any loss, damage or liability beyond the amounts, limits, and conditions of such insurance. We shall not be responsible for any loss, damage, or liability arising from any negligent acts or willful misconduct of Client, its agents, staff, and other consultants employed by it. Certificates of our general liability insurance shall be provided upon request. UTILITIES In the prosecution of our work, CCI will take all reasonable precautions to avoid damage or injury to subterranean structures or utilities. The owner agrees to waive any claim against CCI and to defend, indemnify and hold CCI harmless front any claim or liability for injury or loss allegedly arising from CCI's damaging underground utilities or other man-made objects that were not called to CCI's attention or which were not properly located on plans furnished to CCI. LIMITATION OF LIABILITY To the fullest extent permitted by law, and not withstanding any other provision of this agreement, the total liability, in the aggregate, of CCI and its officers, directors, partners, employees, agents and subconsultants, and any of them, to the Client and anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages of any nature whatsoever arising out of, resulting from or in any way related to this project or the Agreement from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability, breach of contract or warranty, express or implied, of CCI or its officers, directors, employees, agents or subconsultants, or any of them, shall not exceed the total compensation received by CCI under this Agreement, or the total amount of $25,000 whichever is greater. DISPUTES The parties to this Agreement covenant and agree that all claims, disputes and other matters in question between the parties to this Agreement, arising out of or relating to this Agreement or the breach thereof, shall he submitted to non-binding mediation prior to ini iation of any lawsuit or other litigation, unless the parties mutually agree otherwise. The cost of said Mediation shall be split equally between the parties. In the event of any litigation arising or related to the services provided under this Agreement, the prevailing parry will be entitled to recovery of all reasonable costs incurred, including staff time, court costs. attorneys' fees and other related expenses. DISCOVERY OF UNANTICIPATED HAZARDOUS MATERIALS Hazardous materials or certain types of hazardous materials may exist at a site where there is no reason to believe they could or should be present CCI and Client agree that the discovery of unanticipated hazardous materials constitutes a changed condition requiring a renegotiation of the scope of the work or termination of services. OWNERSHIP OF DOCUMENTS All reports, boring logs, field data, field notes, laboratory test data, calculations, estimates, and other documents prepared by CCI as instruments of service, shall remain our property. Client agrees that all reports and other work furnished to the client or his agents. which is not paid for, will be returned upon demand and will not he used by the Client for any purpose whatever. THIRD PARTY BENEFICIARIES Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Client or CCI. CCI's services under this Agreement are being performed solely for the Client's benefit, and no other entit~/ shall have any claim against CCI because of this Agreement or the performance or nonperformance of services hereunder. The Client agrees to include a provision itt all contracts with contractors and other entities involved in this project to carry out the intent of this paragraph. ASSIGNMENT Neither parry to this Agreement shall transfer, sublet or assign any rights under or interest in this Agreement (including but not limited to monies that are due or monies that may be due) without the prior written consent of the other parry. INVOICES Invoices for our services will be submitted, at our option, on a monthly basis or when the work is completed. Invoices will be due immediately, but will not he delinquent within 10 days from which the invoice is dated. If payment is not so made, a service charge will he due on the amount of the invoices at the maximum rate permissible by law from the date of the invoice until the same is paid. If suit is filed, a reasonable attorney's fee, to he set by the court, and other costs incurred in collecting any delinquent account, shall be included in any judgement in favor of CCI. SAMPLES All samples of soil and rock will he disposed of from the laboratory 30 days after issuance of the report unless the Client advises otherwise. Upon request, we will deliver the samples to the Client, charges collect, or will store them for an agreed storage charge.