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12-028 Ninyo & Morro, Stevens Creek Corridor Park and Restoration Phase 2 Soil Testing CITY OF \ti J . P.O. # /4,41 AGREEMENT BETWEEN CITY OF CUPERTINO AND CUPERTINO NINYO & MOORE FOR PROFESSIONAL SERVICES FOR STEVENS CREEK COORIDOR PARK AND RESTORATION PHASE 2 SOIL TESTING 11 THIS AGREEMENT is made and enter&. into this /3 day of 14c&"4-1 , 2012 by and between the City of Cupertino, a municipal corporation, hereinafter referred to as CITY and • Moore hereinafter referred to as CONSULTANT. RECITALS WHEREAS, CITY desires to obtain soils testing consultant services for Stevens Creek Corridor Park and Restoration Phase 2 , (hereinafter referred to as Project); and, WHEREAS, CITY requires certain professional services in connection with Project (hereinafter referred to as Services); and, WHEREAS, CONSULTANT has the necessary professional expertise, qualifications and skill to perform the Services required and is prepared to provide such Services; and, NOW, THEREFORE, the purpose of this Agreement is to retain Ninyo & Moore as CONSULTANT to CITY to perform those Services specified in Exhibit A of this Agreement, and the parties hereby agree as follows: Section 1. Scope of Services CONSULTANT shall perform those Services specified in Exhibit A, titled "Scope of Services and Fee", which is attached hereto and incorporated herein. Section 2. Term of Agreement The term of this Agreement shall commence on March 12, 2012 and continue through July 31, 2012. In the event that the Services called for under this Agreement are not completed within the time specified,the CITY may extend the time for completion. Section 3. Schedule of Performance The Services of CONSULTANT are to be completed in a timely manner acceptable to the City, and as noted in Exhibit A. CONSULTANT is not responsible for delays beyond CONSULTANT's reasonable control. Section 4. Compensation The compensation to be paid to CONSULTANT for professional Services and reimbursable expenses shall be a lump sum not to exceed Eight Thousand Dollars ($8,000.00) for Basic Services inclusive of Reimbursable Expenses. An Additional Services allowance of One Thousand Dollars ($1,000.00) is also included for potential Services that would exceed the basic scope. Such Additional Services shall only be performed upon advance written authorization by CITY. Total Fees shall not exceed Nine Thousand Dollars ($9,000.00). The rate of payment is set out in Exhibit A, titled "Scope of Services and Fee", which is attached hereto and incorporated herein. Section 5. Method of Payment CONSULTANT shall furnish to CITY a detailed statement of the work performed for compensation during the term of this Agreement. CONSULTANT may submit monthly invoices for interim progress payments during the course of each phase, clearly stating as a minimum the total Contract amount, amount paid to date, percent complete, and amount due. Section 6. Independent Contractor It is understood and agreed that CONSULTANT, in the performance of the Services, shall act as and be an independent contractor and not an agent or employee of CITY; and as an independent contractor, CONSULTANT shall obtain no rights to retirement benefits or other benefits which accrue to CITY's employees, and CONSULTANT hereby expressly waives any claim it may have to any such rights. Section 7. No Third Party Rights CONSULTANT's Services under this Agreement are intended for the sole benefit of City and shall not create any third party rights or benefits. Section 8. Project Coordination A. CITY: Director of Public Works shall be representative of CITY for all purposes under this Agreement. The Park Restoration and Improvement Manager, is hereby designated as the Director of Public Works' designee and Project Manager, and shall supervise the progress and execution of this Agreement. B. CONSULTANT: CONSULTANT shall assign a single CONSULTANT Project Manager to have overall responsibility for the progress and execution of this Agreement for CONSULTANT. Should circumstances or conditions subsequent to the execution of the Agreement require a substitute CONSULTANT Project Manger for any reason, the CONSULTANT Project Manager designee shall be subject to the prior written acceptance and approval of the City Project Manager. The designated CONSULTANT Project Manager shall be Lisa Marie Bisson. Section 9. Assignability/ Subconsultants / Employees The parties agree that the expertise and experience of CONSULTANT are material considerations for this Agreement. CONSULTANT shall not assign or transfer any interest in this Agreement or the performance of any obligations hereunder, without the prior written Agreement Ninyo&Moore 2 consent of CITY, and any attempt by CONSULTANT to so assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect. CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the Services of CONSULTANT hereunder. No subconsultant of CONSULTANT will be recognized by CITY as such; rather, all subconsultants are deemed to be contractors of CONSULTANT, and it agrees to be responsible for their performance. CONSULTANT shall give its collective professional attention to the fulfillment of the provisions of this Agreement by all of its employees and subconsultants, if any. and shall keep the work under its control. If any employee or subconsultant of CONSULTANT fails or refuses to carry out the provisions of this Agreement or appears to be incompetent or to act in a disorderly or improper manner, such employee or subconsultant shall be discharged immediately from the work under this Agreement on demand of CITY. Section 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 breached 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. Agreement Ninyo&Moore 3 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 CONSULTANT'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. Section 11. Insurance Requirements CONSULTANT shall furnish to CITY, within 15 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, 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 v■,ill 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 :;hall 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. Agreement Ninyo&Moore 4 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. Section 12. Nondiscrimination CONSULTANT shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, disability, ethnicity, or national origin in connection with or related to the performance of this Agreement. Section 13. Termination A. CITY or CONSULTANT shall have the right to terminate this Agreement without cause, by giving not less than thirty (30) days prior written notice of termination. Agreement Ninyo&Moore 5 B. If CONSULTANT fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, CITY may terminate this Agreement upon thirty (30) days prior written notice if CONSULTANT fails to take steps to correct such failure within the notice period. C. The Director of Public Works is authorized to terminate this Agreement on behalf of CITY. D. In the event of termination, CONSULTANT shall deliver to CITY, copies of all reports, documents, and other work performed by CONSULTANT under this Agreement, and upon receipt thereof, CITY shall pay CONSULTANT for Services performed and reimbursable expenses incurred to the date of termination. Section 14. Governing Law CITY and CONSULTANT agree that the law governing this Agreement shall be that of the State of California. Section 15. Compliance With Laws Consistent with its professional standard of care, CONSULTANT shall comply with all applicable federal, state, and local laws, rules, regulations, orders, codes, criteria and standards. CONSULTANT shall procure the permits, certificates, and licenses necessary to allow CONSULTANT to perform the Services described in Exhibit A. CONSULTANT is required to pay prevailing wage where applicable. Section 16. Confidential Information All data, documents, discussions, or other information developed or received by or for CONSULTANT in performance of this Agreement are confidential and not to be disclosed to any person except as authorized by CITY, or as required by law. Section 17. Ownership of Materials Any interest(including copyright interests) of CONSULTANT or its subconsultants, in studies, reports, memoranda, computational sheets, plans, plans or any other documents (including electronic media)prepared by CONSULTANT or its subconsultants at any time in connection with the Services, shall be immediately upon its creation,the property of CITY. To the extent permitted by Title 17 of the United States Code, work product produced under this Agreement shall be deemed works for hire and all copyrights in such works shall be the property of CITY. In the event that it is ever determined that any work and any former works created by CONSULTANT or its subconsultants under this Agreement are not works for hire under U.S. law, CONSULTANT hereby assigns to CITY all copyrights to such works when and as created. With CITY's prior written approval, CONSULTANT may retain and use copies of such works for reference and as documentation of experience and capabilities. Agreement Ninyo&Moore 6 Electronic and hard copies of CONSULTANT's work product shall constitute the Project deliverables. Plans to be in CAD and PDF formats, and other documents to be in Microsoft Word and PDF formats. CITY holds CONSULTANT harmless for any reuse of or modification to the documents. Section 18.No Waiver The granting of any payments, and any inspections, reviews, approvals or oral statements by any CITY representative, or certification by any governmental entity, shall in no way limit CONSULTANT's obligations under this Agreement. Either party's waiver of any breach, or the omission or failure of either party, at any time, to enforce any right reserved to it, or to require strict performance of any provision of this Agreement, shall not be a waiver of any other right to which any party is entitled, and shall not in any way affect, limit, modify or waive the party's right thereafter to enforce or compel ;strict compliance with every provision hereof. This Agreement may not be modified, nor may compliance with any of its terms be waived, except by written instrument executed and approved by fully authorized representatives of CITY and CONSULTANT. Section 19. CONSULTANT's Books and Records A. CONSULTANT shall maintain any and all ledgers, books of accounts, invoices, canceled checks, and other records or documents evidencing or relating to charges for Services, or expenditures and disbursements charged to CITY for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT pursuant to this Agreement. B. CONSULTANT shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Attorney, City Manager, or a designated representative of any of these officers. Copies of such documents shall be provided to CITY for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at CONSULTANT's address indicted for receipt of notice in this Agreement. D. Where CITY has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment, or termination of CONSULTANT's business, CITY may, by written request by any of the above-named officers, require that custody of the records be given to CITY and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by CONSULTANT, CONSULTANT's representatives, or CONSULTANT's successor-in-interest. Agreement Ninyo&Moore 7 Section 20. Interest of CONSULTANT CONSULTANT covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services hereunder. CONSULTANT further covenants that, in the performance of this Agreement, no subconsultant or person having such an interest shall be employed. CONSULTANT certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of CITY. It is expressly agreed that, in the performance of the Services hereunder, CONSULTANT shall at all times be deemed an independent CONSULTANT and not an agent or employee of CITY. Section 21. Gifts A. CONSULTANT is familiar with CITY's prohibition against the acceptance of any gift by a CITY officer or designated employee, which prohibition is found in CITY Administrative Procedures. B. CONSULTANT agrees not to offer any CITY officer or designated employee any gift prohibited by the Administrative Procedures. C. The offer or giving of any prohibited gift shall constitute a material breach of this Agreement by CONSULTANT. In addition to any other remedies, CITY may have in law or equity, CITY may terminate this Agreement for such breach as provided in Section 13 of this Agreement. Section 22. Notices All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective parties as follows: To CITY: Gail Seeds City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 408-777-1334 e-mail: gails @cupertino.org To CONSULTANT: Lisa Marie Bisson Ninyo & Moore 1956 Webster Street, Suite 400 Oakland, CA 94612 510-633-5640 e-mail: LBisson @ninyoandmoore.com Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the mail. Agreement Ninyo&Moore 8 Section 23. Venue In the event that suit shall be brought by either party hereunder, the parties agree that venue shall be exclusively vested in the state courts of tie County of Santa Clara, or where otherwise appropriate, exclusively in the United States District Court for the Northern District of California, San Jose, California. Section 24. Agreement Binding/Prior Agreements and Amendments The terms, covenants, and conditions of this Agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and subconsultants of both parties. This Agreement, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may only be modified by a written amendment duly executed by the parties to this Agreement. Section 25. Costs and Attorneys Fees The prevailing party in any action brought to enforce the terms of this Agreement or arising out of this Agreement may recover its reasonable costs and attorneys' fees expended in connection with such an action from the other party. Section 26. Electronic Transmission of Information From time to time, CONSULTANT may be directed to transmit information to CITY, or CITY's other Consultants, or CITY's Contractor via electronic transmission. CITY, or CITY's other Consultants, or CITY's Contractor shall not be entitled to and CITY hereby agrees not to alter or modify any such information without the express consent of CONSULTANT. Similarly, CITY, or CITY's other Consultants, or CITY's Contractor shall not use any information for any purpose not expressly covered by this Agreement. CONSULTANT shall not be responsible for any destruction or corruption of such information during or after transmission to CITY, or CITY's other Consultants, or CITY's Contractor and shall be entitled to appropriate additional compensation in the event re-transmission or re-creation is required. Notwithstanding the foregoing, CITY's Contractor may use electronically transmitted information to prepare submittals, as-built drawings and record drawings. CONSULTANT shall not be responsible for any changes made by the Contractor or for the Contractor's work product. Section 27. Dispute Resolution Any dispute related to the Services hereunder shall be resolved by the parties pursuant to applicable law. Agreement Ninyo&Moore 9 P.O. # '�/ � WITNESS THE EXECUTION HEREOF on the (lay and year first herein above written. APPROVED AS TO FORM: CITY OF CUPERTINO a municipal corporation ( "i>/ttorney, Carol Korade By: L � date �/� 3/ i Z Director of Public Works, Timm Borden Attest: ��,� G 1... scl/t�-1 late Acting City Clerk, Grace Schmidt 10300 Torre Avenue Cupertino, CA 95014 408-777-3223 ) CONSULTANT v NINYO & MOORE By: I Date: —31 I , 2012 Name: 164Ct S4-0 pv . sc.x / Title: 9r, NGt -N.4 iron vv..0,4)-4_ Tax I.D.No.: 33 - 07-6c62-1 1956 Webster Street, Suite 400 Oakland, CA 94612 Contract Amount: $ 9,000.00 Account No.: 427-9134-9300 Agreement Ninyo&Moore 10 EXHIBIT A SCOPE OF SERVICES AND FEE STEVENS CREEK CORRIDOR PARK &RESTORATION PHASE 2 SOIL TESTING SERVICES Task lA — Conduct background review as needed for project. Provide project coordination and management. Task 1B — Prepare a health and safety plan (HASP) which addresses the activities to be conducted by Ninyo & Moore ("Consultant") and its subcontractors. The HASP form a previous project nearby will be revised as appropriate for use on this project. Task 1C — Provide site reconnaissance and markouts for utility clearance. Contact Underground Service Alert (USA) to locate any utilities entering the project area, and obtain a dig ticket number, no less than 48 hours prior to invasive activities. Task 1D—Consultant proposes to collect shallow soil samples within the top 2 feet of site soils in order to evaluate potential organo-chlorinated pesticides (OCPs) plus lead and arsenic. The samples will be collected at depths between the surface and one foot below ground surface ("near surface"), and one and two feet below ground surface ("shallow"). Consultant will collect one four-point composite sample on the west side of the project area and two four-point composite samples on the east side of the project area. The samples will be collected individually and composited by the analytical laboratory upon receipt of samples. For at least two of the sample locations including at least one on the west side and one or more on the east side, secure deeper samples at approximately 5 feet below ground surface to hold for potential further testing. Task lE — Record the location of each sampling point in the field using a hand-held Global Positioning Satellite (GPS) unit and stake each location where possible. The proposed locations may vary slightly due to field conditions (auger refusal, tree locations, steep embankments, obstructions etc., e.g.). The final locations will be plotted on an aerial photograph and included in the final report. Task IF — Soil samples will be collected using hand tools and placed in 8-ounce clean glass containers. Sampling equipment will be decontaminated with a triple bucket wash of distilled water/alconox wash, and two distilled water rinses. Samples will be stored in a cooler with ice, and shipped via courier with complete chain of custody documentation to a NELAP accredited analytical laboratory. All 6 composite soil samples will be analyzed for OCPs using EPA Method 8081, and for lead and arsenic using EPA method 6010/7000. All samples will be analyzed within an expedited turn-around time of three days. The near-surface and shallow samples will all be analyzed. The deep samples will be placed on hold pending results of the near-surface and shallow samples. Estimated fee, Task 1: $3,700 Task 2 — Prepare a Soil Sampling Report. Compile and analyze data. The report will include a brief description of the site background, a brief discussion of sample locations and sampling methodology, a summary of sample analytical results, tabular sample results, a figure illustrating sample locations, an appendix containing the laboratory analytical report, and chain-of-custody documentation as applicable. Provide an administrative draft to City representative; appendices may be exluded. Upon finalizing report, provide 3 color hard copies and one electronic copy. Estimated fee, Task 2: $4,300 Fees include all vehicle usage, supplies, equipmert, materials, travel, testing, and reimbursable and incidental expenses. TOTAL CONTRACT FEE for services described above: Lump Sum Not To Exceed $8,000.00 Consultant Staff assigned to the project shall be: Ms. Lise Marie Bisson, Project Manager, Senior Geologist Mr. Kristopher Larson, Technical Advisor, Principal Geologist Mr. Cem Atabek, Task Manager/Project Environmental Engineer Schedule: All work described herein is to be completed within 3 weeks of receiving a notice to proceed.