12-005 First Amendent to Agreement, Balance Hydrologics, Stevens Creek Corridor Park and Creek Restoration Phase I Monitoring Services CITY OF
•
1/45'C.1 pf`
CUPERTINO
FIRST AMENDMENT
to
PROFESSIONAL SERVICES AGREEMENT
Between
THE CITY OF CUPERTINO
And
BALANCE HYDROLOGICS
for the
STEVENS CREEK CORRIDOR PARK AND CREEK RESTORATION PHASE 1
MONITORING SERVICES
A CUPERTINO CAPITAL IMPROVEMENT PROGRAM PROJECT
Contract No.00057121 (P.O.)
Dated January 13,2012
SSA First Amendment
CITY OF
\ /� THE CITY OF CUPERTINO
J k FIRST AMENDMENT TO
SZ ty AGREEMENT BETWEEN
�
THE CITY OF CUPERTINO
CUPERTINO AND
BALANCE HYDROLOGICS
THIS FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT ("Agreement") is
dated this /3r* day of January,2012, in the City of Cupertino, State of California,by and between BALANCE
HYDROLOGICS, hereinafter referred to as ("CONSULTANT") and CITY OF CUPERTINO, hereinafter
referred to as("CITY").
Recitals
WHEREAS, CITY and CONSULTANT desire to amend the AGREEMENT to modify the basic
agreement,scope of services and fees;and
WHEREAS, the CITY OF CUPERTINO desires to obtain professional consultant services for the Steven
Creek Corridor Park and Creek Restoration Phase(Monitoring Services,(hereinafter,PROJECT);and
WHEREAS,City's rules and regulations authorize City to enter into agreements for professional temporary
services;and
WHEREAS,BALANCE HYDROLOGICS has the necessary professional expertise and skills to perform
the professional services required,
Now, THEREFORE, for good and valuable consic.eration, the receipt and sufficiency of which are hereby
acknowledged,stipulated and agreed,the parties agree as fo]lows:
1. Scope of Services
1.1 See Exhibit A-1 of this First Amendment for changes that add scope to the Basic Agreement. All
scope of the Basic Agreement remains in effect and unchanged.
2. Term of Agreement
2.1 Unchanged. See Basic Agreement.
3. Schedule of Performance
3.1 Unchanged. See Basic Agreement.
4. Compensation
The compensation to be paid to CONSULTANT for services and reimbursable expenses shall be by task
and per the Scope and Compensation exhibits attached for a sum not to exceed$115,500.00(One Hundred
Fifteen Thousand Five Hundred Dollars). The rate and schedule of payment is set out in Exhibit B-1,
entitled"Compensation",which is attached hereto and incorporated herein.
5. Method of Payment
5.1 Unchanged. See Basic Agreement.
SCCP and Creek Restoration Phase 1 Monitoring Services Agreement
Balance Hydrologics-First Amendment
1
6. Independent Contractor
6.1 Unchanged. See Basic Agreement.
7. No Third Party Rights
7.1 Unchanged. See Basic Agreement.
8. Project Coordination
8.1 Unchanged. See Basic Agreement.
9. Assignability/Sub consultants/Employees
9.1 Unchanged. See Basic Agreement.
10. Indemnification
A. Claims for Professional Liability. Where the law establishes a standard of care for CONSULTANT's
professional services, and to the extent the CONSULTANT breaches or fails to meet such established
standard of care, or is alleged to have Preached or failed to meet such standard of care,
CONSULTANT shall, to the fullest extent allowed by law, with respect to all services performed in
connection with the Agreement, indemnify, defend, and hold harmless CITY and its officers, officials,
agents, employees and volunteers from and against any and all liability, claims, actions, causes of
action or demands whatsoever against any of them, including any injury to or death of any person or
damage to property or other liability of any nature, that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of CONSULTANT or CONSULTANT's employees,
officers,officials,agents or independent contractors. Such costs and expenses shall include reasonable
attorneys' fees of counsel of CITY's choice. expert fees and all other costs and fees of litigation.
CONSULTANT shall not be obligated under this Agreement to indemnify CITY to the extent that the
damage is caused by the sole or active negligence or willful misconduct of CITY, its agents or
employees.
B. Claims for Other Liability. CONSULTANT shall, to the fullest extent allowed by law, with respect to
all services performed in connection with the Agreement, indemnify, defend, and hold harmless CITY
and its officers, officials, agents, employees and volunteers against any and all liability, claims,
actions,causes of action or demands whatsoever from and against any of them, including any injury to
or death of any person or damage to property or other liability of any nature, that arise out of, pertain
to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT or
CONSULTANT's employees, officers, officials, agents or independent contractors. Such costs and
expenses shall include reasonable attorneys' fees of counsel of CITY's choice,expert fees and all other
costs and fees of litigation. CONSULTANT shall not be obligated under this Agreement to indemnify
CITY to the extent that the damage is caused by the sole or active negligence or willful misconduct of
CITY,its agents or employees.
C. Claims involving intellectual property. In addition to the obligations set forth in (A) and (B) above,
CONSULTANT shall indemnify, defend, and hold CITY, its elected and appointed officers,
employees, and volunteers, harmless from and against any Claim in which a violation of intellectual
property rights, including but not limited to copyright or patent rights, is alleged that arises out of,
pertains to, or relates to CONULSTANT's negligence, recklessness or willful misconduct under this
Agreement. Such costs and expenses shall include reasonable attorneys' fees of counsel of CITY's
choice,expert fees and all other costs and fees of litigation.
11. Insurance
CONSULTANT shall furnish to CITY, within 1.5 days following the execution of this Agreement, the
required certificates and endorsements to provide CITY satisfactory proof that CONSULTANT has taken
out for the entire period required by this Agreement, as further described below, the following insurance
and endorsements, in a form satisfactory to CITY and with an insurance carrier satisfactory to CITY,
SCCP and Creek Restoration Phase 1 Monitoring Services Agreement
Balance Hydrologics-First Amendment
2
authorized to do business in California and rated by A. M. Best & Company "A" or better, financial
category size FSC Class VII or better or that is otherwise acceptable to CITY, which will protect those
described below from claims described below which arise or are alleged to have arisen out of or result from
the acts, errors or omissions of CONSULTANT for which CONSULTANT may be legally liable, whether
performed by CONSULTANT, or by those employed directly or indirectly by it, or by anyone for whose
acts CONSULTANT may be liable:
A. Workers' Compensation and Employer's Liability Insurance:
Workers' compensation insurance indicating compliance with State's workers' compensation laws and
employer's liability insurance with a minimum of one million dollars ($1,000,000.00) per accident for
injury, death or disease to any employee. The policy shall contain an endorsement waiving all rights of
subrogation against CITY, its officers, officials, employees or volunteers. In the event CONSULTANT is
self-insured, it shall furnish Certificate of Permission to Self-Insure signed by Department of Industrial
Relations Administration of Self-Insurance, State of California.
B. Professional Liability,General Liability and Automobile Liability Coverage:
1. Automobile Liability Insurance shall include coverage for bodily injury and property damage for
owned(if any),hired and non-owned vehicles and shall not be less than one million dollars
($1,000,000.00),combined single limit for any one occurrence.
2. Comprehensive or Commercial General Liability Insurance shall include coverage for bodily
injury,property damage and personal injury for premises operations,product/completed
operations and contractual liability. The amount of the insurance shall not be less than one million
dollars($1,000,000.00)per occurrence and two million dollars($2,000,000.00)aggregate,
combined single limit. (Claims made policies are not acceptable.) CONSULTANT shall also
provide aggregate limits per project endorsement and primary insurance endorsement.
3. Professional liability Insurance(including,Contractual Liability)shall include coverage for claims
for professional acts,errors or omissions and shall not be less than one million dollars
($1,000,000.00)per claim,and two million dollars($2,000,000.00)in the aggregate. This
coverage shall be maintained for a period of 5 years after completion of the Agreement.
C. Additional Insurance Provisions
1. CITY shall have the right to inspect or obtain a copy of the original policies of insurance.
2. On CONSULTANT's Commercial General Liability policy and Automobile Liability Policy,CITY of
Cupertino and their affiliates,directors,officers,officials,partners,representatives,employees,consultants,
subconsultants and agents,shall be named as additional insured,but only with respect to liability arising
out of work or operations performed by or on behalf of CONSULTANT including materials,parts or
equipment furnished in connection with such work or operations.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 37 07 04 or CG 20 10 11 85).
3. The general and auto liability policies shall be endorsed to provide primary insurance coverage for all
claims related to the Services provided under this contract.
4. The certificate of insurance shall state the policy will not be cancelled without thirty(30)days prior written
notice to CITY.
5. All policies, endorsements,certificates, and/or binders shall be subject to approval by CITY as to form and
content. These requirements are subject to amendment or waiver if so approved in writing by CITY.
6. If CONSULTANT fails to maintain any required insurance, CITY may take out such insurance,and deduct
and retain amount of premium from any sums due CONSULTANT under this Agreement.
7. Professional liability insurance coverage is required if CONSULTANT is providing a service regulated by
the State of California or if required by CITY.
SCCP and Creek Restoration Phase 1 Monitoring Services Agreement
Balance Hydrologics-First Amendment
3
12. Nondiscrimination
12.1 Unchanged. See Basic Agreement.
13. Termination
13.1 Unchanged. See Basic Agreement.
14. Governing Law
14.1 Unchanged. See Basic Agreement.
15. Compliance With Laws
15.1 Unchanged. See Basic Agreement.
16. Confidential Information
16.1 Unchanged. See Basic Agreement.
17. Ownership of Materials
17.1 Unchanged. See Basic Agreement.
18. No Waiver
18.1 Unchanged. See Basic Agreement.
19. Consultant's Books and Records
19.1 Unchanged. See Basic Agreement.
20. Interest of Consultant
20.1 Unchanged. See Basic Agreement.
21. Gifts
21.1 Unchanged. See Basic Agreement.
22. Notices
22.1 Unchanged. See Basic Agreement.
23. Venue
23.1 Unchanged. See Basic Agreement.
24. Agreement Binding/Prior Agreements and Amendments
24.1 Unchanged. See Basic Agreement.
25. Costs and Attorneys Fees
25.1 Unchanged. See Basic Agreement.
26. Electronic Transmission of Information
26.1 Unchanged. See Basic Agreement.
27. Job Site Safety
27.1 Unchanged. See Basic Agreement.
28. Dispute Resolution
28.1 Unchanged. See Basic Agreement.
SCCP and Creek Restoration Phase 1 Monitoring Services Agreerrent
Balance Hydrologics-First Amendment
4
IN WITNESS WHEREOF,the parties hereto have executed this First Amendment the day first mentioned above.
"City" CITY OF CUPERTINO,
By c
T. orden,Director of Public Works
Attest: % %' ' .'
f C f/n Q ,City Clerk
"Consultant" BALANCE HYDROLOGICS
800 Bancroft Way, Suite 101
Berkeley,CA 94710
510-704-1000
By: *lC.,.- . A.4.141
I
Date: I l ( 3 13-01 2__
Name: cithA14143 ( - C 41' -fl -/4--N i'-j
Title: c riz_ 11JE_NT"
roved as,to form and legality this day of _J,� � "2012.
City Attorney
All of the terms and conditions of the original AGREEMENT not modified by this First Amendment,shall remain in
full force and effect.
THIS AGREEMENT SHALL NOT BE VALID OR EFFECTIVE FOR ANY PURPOSE UNLESS AND UNTIL
SIGNED BY THE CITY.
Amount of Agreement: $115,500.00
P.O. 00057121
Account No.427-9112-9300
SCCP and Creek Restoration Phase 1 Monitoring Services Agreement
Balance Hydrologics-First Amendment
5
EXHIBIT A - 1
SCOPE OF SERVICES
All work noted in Exhibit A in the Basic Agreement dated December 20, 2010 remains unchanged.
The following new task is added:
VII.Adaptive Management- bank stabilization
Work will place rootballs and native tree limbs along Stevens Creek at Horseshoe Bend to protect against scour,
stabilize the area,and promote long term goals for channel morphology and stability. Revegetation with native
plants will further stabilize the area and improve habitat values. Work will implement adaptive management
strategies consistent with monitoring requirements and long term restoration goals for Stevens Creek Corridor Park
and Restoration Phase 1. All work will be managed,coordinai:ed and overseen by Balance Hydrologics,with
subcontractor tasks by Jana Sokale and Hanford ARC. Tasks include:
Flag seven trees previously identified for removal.Procure trees with rootballs for adaptive re-use to protect the
creek bank and improve habitat values. Excess small limbs to De chipped and excess soil if present to be replaced at
original rootball locations. Any disturbed areas to be smoothed to original condition. Any debris generated by the
activities to be removed and disposed of off site.
Deliver and place rootballs on the west bank per Balance Hydrologics direction. Place tree limbs available at project
site along creek bank per Balance Hydrologics direction. Perform hand work on the west bank to securely seat
rootballs and restore the work area. Rootballs may be anchored in place with cable and steel pins as needed and as
directed by Balance Hydrologics. Exposed drainage pipe(s)al Horseshoe Bend to be trimmed back flush to the bank
line. Root zones of existing mature trees that could be affected by the work to be protected with trench plates. One
young willow to be cut to facilitate access; leave in place to re sprout. Trimmed willow material to be re-used for
planting creek banks within the area of treatment.
Order approximately 75 container plants as acceptable to city and arrange delivery to the site. Plant material shall be
native species consistent with the existing restoration plantings. Flag locations of new plants and install consistent
with existing plantings. Access route and any disturbed areas to be hand-raked at completion of work. Any debris
or excess material resulting from planting and bank stabilization actions to be removed and disposed of off site.
All work shall be implemented in compliance with all applicable codes,regulations,and requirements and in a
manner consistent with all regulatory,permitting and monitoring requirements associated with Stevens Creek
Corridor Park and Restoration Phase 1. Work shall be conducted in accordance with Best Management Practices,
and with Santa Clara Valley Water District 2005 Best Management Practices Handbook and Stream Maintenance
Program as applicable. Mechanical equipment used for the bank stabilization shall at no time come in contact with
moving water.
Work is expected to occur over 3 days: 1st day for startup(stabilization actions may also commence if feasible),2nd
day for stabilization actions,and 3rd day for planting installation,cleanup and completion. Work will be scheduled
with the city's concurrence and will conclude by January 31 or earlier. Subcontractor to furnish a certificate of
insurance to Balance Hydrologics prior to commencing work.
EXHIBIT B - 1
COMPENSATION
Compensation for all services and tasks in the Basic Agreement dated December 20, 2010 remains
unchanged.
The following compensation is added for new Task VII, Adaptive Management :
Lump Sum not to exceed$26,000.00
COMPENSATION SUMMARY
Basic Agreement Plus Amendment No. 1
Tasks I -VI, Years 3 —5, Basic Agreement $80,400
Reimbursable Expenses Allowance, Basic Agreement $2,100
Subtotal, services &reimbursable expenses: $82,500
Additional Services Allowance,Basic Agreement $7,000
Subtotal,Basic Agreement,not to exceed: $89,500
New Task VII,Amendment No. 1 $26,000
REVISED TOTAL CONTRACT,Not to Exceed: $115,500
Client#:727 BALANHYDR
ACORDTM CERTIFICATE OF LIABILITY INSURANCE 0/25/MIDD/YYYY)
10/2512013
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Dealey, Renton &Associates ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
P.O.Box 12675 HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Oakland,CA 94604-2675
51046 5-3090 INSURERS.AFFORDING COVERAGE - NAIL#
INSURED INSURER A: Travelers Indemnity Co.Of-Conn 25682
.'Balance-Hydrologic-s,Inc. INSURER B: Travelers Property Casualty Co - 25674
800 Bancroft.Way,Suite 101 ) INSURER c: Greenwich Insurance Company
Berkeley,CA 94710-2227 INSURER.D: Sentinel Insurance Co. LTD 11000
INSURER E:
COVERAGES _
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.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
IN SR ADDT TYPE OF INSURANCE POLICY NUMBER POLIi-Y EFFECTIVE POLICY EXPIRATION LIMITS
LTR NSR DATE MM/DDIYY .DATE MM/DD/YY
A GENERAL LIABILITY 68054591-40A 10126/13 - 10/26/14 EACH OCCURRENCE $110001000
X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $300 OOO SFSfE.
CLAIMS MADE 17X OCCUR MED EXP(Any one person) s5,000
PERSONAL&ADV INJURY $1 000.000
GENERAL.AGGREGATE s2,000,000
GE N'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $2 OOO O00
X POLICY PRO-
JECT LOC _
D AUTOMOBILE LIABILITY 57UEGPV2266 10/26113 10/26/14 COMBINED SINGLELIMIT
X ANY AUTO (Ea accident) $1,000,000
ALL OWNED AUTOS
. BODILY INJURY $
SCHEDULED AUTOS (Per person)
X HIRED AUTOS
-: BODILY INJURY $
X NOWOWNED.AUTOS' - .. - - (Peraccident) -- - - - °--
,} PROPERTY DAMAGE
.'(Per accident)- -- -
GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $
ANY AUTO - OTHER THAN EA ACC' $
AUTO ONLY: AGG $
B EXCESS/UMBRELLA LIABILITY CUP7384Y02A 10/26/13 10/26/14 EACH OCCURRENCE s2,000,000
X OCCUR FI CLAIMS MADE AGGREGATE s2,000,000
$
DEDUCTIBLE $
RETENTION $ _ $
WORKERS COMPENSATION AND WC STATU- OTH LIMIT EMPLOYERS'LIABILITY
ANYPROPRIETOR/PARTNER/EXECUTIVE _ _ _ E.L.EACH ACCIDENT _ Is
—�•CFF,,des ribe under CCUDcD% — E.L.DISEASE-:EA:EMPLOYEE $
If yes,describe under
SPECIAL PROVISIONS.below _ E.L.DISEASE-POLICY LIMIT 1$
C OTHER Professional PECO01747309 10/26/13 10/26/14 $5,000,000 per claim
Liability $5,000,000 annl aggr.
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS
General liability policy excludes claims arising out of the performance of professional services
PROJECT#203124
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES'BE CANCELLED BEFORE THE EXPIRATION
City of Cupertino DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL -10 DAYS WRITTEN
Parks&Recreation Admin. NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DO SO SHALL
Attn:Therese Ambrosi Smith IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR
10300 Torre Avenue REPRESENTATIVES.
Cupertino,CA 95014-3255 AUTHORIZED REPRESENTATIVE
ACORD 25(2001/08)1 Of 1 #S779901/M779874 MXG 0 ACORD CORPORATION 1988