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13-110 Ninyo and Moore, Consultant Services for Stevens Creek Corridor Park & Restoration Phase 2, Soil Excavation Oversight FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND NINYO AND MOORE FOR CONSULTANT SERVICES FOR STEVENS CREEK CORRIDOR PARK & RESTORATION PHASE 2 This First Amendment to the Consultant Services Agreement between the City of Cupertino and Ninyo & Moore, for reference dated July 26, 2013 , is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and Ninyo and Moore, a California corporation, whose address is 1956 Webster Street, Suite 400, Oakland, CA 94612, (hereinafter "Consultant"), and is made with reference to the following: RECITALS: A. On July 19, 2013, an agreement was entered into by and between City and Ninyo and Moore (hereinafter "Agreement"). B. City and Ninyo and Moore desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. Paragraph 2 of the Agreement is modified to read as follows: "Consultant shall perform each and every service set forth in Exhibit A-1 titled 'Scope of Services and Fee', which is attached hereto and incorporated herein by this reference." 2. Paragraph 4, first sentence, of the Agreement is modified to read as follows: "The maximum compensation to be paid to Consultant under this agreement shall not exceed Eight Thousand Four Hundred Dollars ($8,400.00)." 3. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. Cupertino-Ninyo&Moore Agmt. Page 1 of 2 Amendment No.1 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. Ninyo and Mo e CITY OF CUPERTINO A Municipal Corporation By By Ot ,{— Directb'f b'f Public Works, Timm Borden Title p N G t Date 7�3a�� � Date RECOMMENDED FOR APPROVAL: By V • `- Park Restoration&Improvement Manager, Gail Seeds APPROVED AS TO FORM: By "Carol Korade, City Attorney ATTEST: I 'j— By - C/ Grace Schmidt, City Clerk Revised Contract Amount: $8,400.00 Cupertino-Ninyo&Moore Agmt. Page 2 of 2 Amendment No.1 EXHIBIT A-1 SCOPE OF SERVICES AND FEE This exhibit supersedes and replaces Exhibit A of the original agreement. Based on field observations and test results of contaminants detected in shallow soil which was removed on July 16, 2013, Ninyo and Moore has recommended the removal of additional shallow soil from the affected area and collection of confirmation soil samples to verify that impacted soil has been sufficiently removed. Task A Ninyo and Moore will provide oversight of excavation and stockpiling of affected soil. Ninyo and Moore will collect an anticipated eleven soil samples for analysis of total petroleum hydrocarbons as diesel (TPHd) and polycyclic hydrocarbons (PAHs). Ninyo and Moore will collect an anticipated three confirmation soil samples for analysis of the selected analyte(s). Ninyo and Moore will coordinate with landfills to arrange waste profiling and acceptance of excavated soil. Ninyo and Moore will return to the site to oversee loading of soil from the stockpile into trucks for transportation to the selected landfill. TASK B Ninyo and Moore will prepare a report documenting the soil removal, confirmation sampling, and transportation and disposal activities. The report will include data summary tables, figures, photographs, copies of laboratory reports, and soil disposal documentation. This task will be performed the week by September 27 unless otherwise acceptable to the City. TASK C Ninyo and Moore will provide laboratory testing and results by an appropriate testing laboratory, which will be performed on a 24 hour turnaround time. Fee Estimate Task A: $3,400.00 Task B: $1,500.00 Task C: $3,500.00 Total Fee: Not to Exceed$8,400.00 Cupertino-Ninyo&Moore Agreement Page A-1 Exhibit A-1 CITY OF [I' CUPERTINO Consultant Services for Stevens Creek Corridor Park and Restoration Phase 2 ADDITIONAL ENCUMBERANCE NO. I Aug. 1,2013 Contractor: Ninyo and Moore 1956 Webster Street, Suite 400 Oakland, CA 94612 The following change is hereby approved and request for additional encumbrance: IA. Additional Services outlined in Amendment No. 1 $2,400.00 Total Additional Encumbrance No. 1 $2,400.00 Total Project Encumbrance: Original Contract $6,000.00 Additional Encumbrance No. 1 $2,400.00 Revised Contract $8,400.00 ORIGINAL P.O. NUMBER: 00058184 ACCOUNT NUMBER: 427-9134-9300 APPROVED BY: Timm Vrden, P.E. Director of Public Works Date D�� �I f/ OFFICE OF THE CITY CLERK • CITY HALL 10300 TORRE AVENUE•CUPERTINO, CA 95014-3255 41".194, TELEPHONE: (408) 777-3223• FAX: (408) 777-3366 X4 WEBSITE:www.cupertino.org CUPERTINO July 24, 2013 Kris Larson Ninyo and Moore 1956 Webster Street, Suite 400 Oakland, CA 94612 RE: Agreement Enclosed for your records is a fully executed original copy of your agreement with the City of Cupertino. If you have any questions, please contact the Public Works Department at (408) 777-3354. Sincerely, .A ■ I/ 0 Dorothy Steenfott Senior Office Assistant City Clerk's Office Enclosure cc: Public Works AGREEMENT BETWEEN THE CITY OF CUPERTINO AND NINYO AND MOORE FOR CONSULTANTSERVICES FOR STEVENS CREEK CORRIDOR PARK &RESTORATION PHASE 2 o y' f° Se/d HIS AGREEMENT, for reference dated July 19, 2013, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), andNinyo and Moore, a California corporation, whose address is 1956 Webster Street, Suite 400, Oakland, CA 94612 (hereinafter referred to as "Consultant"), and is made with reference to the following: RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. Consultant is specially trained, experienced and competent to perform the special services which will be :required by this Agreement; and C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and Consultant desire to enter into an agreement for soil testing, oversight of soil removal, and reportingupon the terms and conditions herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The term of this Agreement shall commence on the date this agreement is executed and shall terminate on October 31, 2013 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED: Consultant shall perform each and every service set forth in Exhibit "A". titled "Scope of Services and Fee" which is attached hereto and incorporated herein by this reference. Cupertino-Ninyo&Moore Agreement Page 1 of 12 3. SCHEDULE OF PERFOMRANCE: The Services of Consultant are to be completed according to the schedule set out in Exhibit A, which is attached hereto and incorporated herein by this reference. 4. COMPENSATION TO CONSULTANT: The maximum compensation to be paid to Consultant under this agreement shall not exceed Six Thousand Dollars ($6,000.00). The rate of payment is set out in Exhibit B, titled "Fee Schedule", which is attached hereto and incorporated herein. 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. 5. TIME IS OF THE ESSENCE: Consultant and City agree that time is of the essence regarding the performance of this Agreement. 6. STANDARD OF CARE: Consultant agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 7. INDEPENDENT PARTIES: City and Consultant intend that the relationship between them created by this Agreement is that of employer-independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee re[ationship from any fees due Cupertino-Ninyo&Moore Agreement Page 2 of 12 Consultant. Payments of the above items, if required, are the responsibility of Consultant. 8. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA, or other federal, or state rules and regulations. Consultant shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 9. NON-DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer/employee conduct, Consultant agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Consultant agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 10. PROJECT COORDINATION CITY: Director of Public Works shall be representative of City for all purposes under this Agreement. Gail Seeds is hereby designated as the Director of Public Works' designee and Project Manager, and shall supervise the progress and execution of this Agreement. 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 Manager 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 Kris Larson. 11. HOLD HARMLESS: Indemnification: A. Claims for Professional Liability. Where the law establishes a standard of care for Consultant's professional services, and to the extent the Cupertino-Ninyo&Moore Agreement Page 3 of 12 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 the 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 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 the 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 performance of this Agreement by 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. 12. INSURANCE: On or before the commencement of the term of this Agreement, Consultant shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 12A, B, C, 1) and E. Such certificates, which do not limit Consultant's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced.before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, Attention: City Manager." It is agreed Cupertino-Ninyo&Moore Agreement Page 4 of 12 that Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Consultant shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence $1,000,000 aggregate - all other Property Damage: $100,000 each occurrence $250,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of$1,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Comprehensive automotive liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single LimiLt: $500,000 each occurrence (4) Professional Liability: Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least$1,000,000. B. SUBROGATION WAIVER: Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or Cupertino-Ninyo&Moore Agreement Page 5 of 12 City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the cosi:s of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and commissions, officers, employees and volunteers shall be named as an additional insured under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. 13. CONFLICT OF INTEREST: Consultant warrants that it is not a conflict of interest for Consultant to perform the services required by this Agreement. Consultant may be required to fill out a conflict of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations. 14. PROHIBITION AGAINST TRANSFERS: Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent cf City. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Cupertino-Ninyo&Moore Agreement Page 6 of 12 Consultant from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Consultant. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 15. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names are included in this Agreement shall be used in the performance of this Agreement. In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general, automobile and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 16. PERMITS AND LICENSES: Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses including, but not limited to, a City Business License, that may be required in connection with the performance of services hereunder. 17. REPORTS: A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of City. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to City the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of City, and all publication rights are reserved to City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. B. All Reports prepared by Consultant may be used by City in execution or implementation of: Cupertino-Ninyo&Moore Agreement Page 7 of 12 (1) The original Project for which Consultant was hired; (2) Completion of the original Project by others; (3) Subsequent additions to the original project; and/or (4) Other City projects as appropriate. C. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be printed on recycled paper. All Reports shall be copied on both sides of the paper except for one original, which shall be single sided. E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. F. 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 modifications to the documents. 18. RECORDS: Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Consultant shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. Cupertino-Ninyo&Moore Agreement Page 8 of 12 19. NOTICES: All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Consultant to City shall be addressed to City at: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Director of Public Works All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: Ninyo and Moore 1956 Webster Avenue, Suite 400 Oakland, CA 94612 Attn: Kris Larson 20. TERMINATION: In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If such default is not cured within the time specified after receipt by Consultant from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Consultant written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. In the event of termination, Consultant shall deliver to City, copies of all reports, documents, and other work performed by Consultant under this Agreement. 21. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, Cupertino-Ninyo&Moore Agreement Page 9 of 12 rules and regulations enacted or issued by City. 22. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 23. ADVERTISEMENT: Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 24. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 22. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 25. 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 Cupertino-Ninyo&Moore Agreement Page 10 of 12 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 19 of this Agreement. 26. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 27. CAPTIONS: The captions in this Agreement are ,or convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. Cupertino-Ninyo&Moore Agreement Page 11 of 12 P.O. No.: ZOT 0/61)-.51-- IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. ✓ - CONSULTAN 1° CITY OF CUPERTINO Ninyo and Moore ) A Municipal Corporation By By • A ■ Timm Borden, Director of Public Works Name 1Zi^tS p lam_ l a�'S z?rte I�. 6 Date 7/ZZil3 Title r 1 nrc__, e� 6.0_,c(o i 5 Date 7 ( 3 Tax I.D. No.: 3 - U -6 9U-S- APPROVED AS TO FORM: Address: Ie/S79 Sq---444-ac) °l1( ( 2- wittrAzif fr'Carol Korade, City At orney ATTEST: Grace Schmidt, City Clerk (2 4 (13 Contract Amount: $6,000.00 Account No. : 427-9134-9300 1 � Cupertino-Ninyo&Moore Agreement Page 12 of 12 EXHIBIT A SCOPE OF SERVICES AND FEE Based on field observations and test results of contaminants detected in shallow soil which was removed and contained in a drum on July 16, 29013, Ninyo and Moore has recommended the removal of additional shallow soil from the affected area and collection of confirmation soil samples to verify that impacted soil has been sufficiently removed to levels that are protective of human health and the environment. Task A Ninyo and Moore will provide excavation oversight. Ninyo and Moore will collect an anticipated eleven confirmation soil samples for analysis of total petroleum hydrocarbons as diesel(TPHd) and polycyclic hydrocarbons (PAHs). Ninyo and Moore will coordinate with landfills to arrange waste profiling and acceptance of excavated soil. If excavated soil is initially stockpiled, Ninyo and Moore will return to the site to oversee loading of soil from the stockpile into a truck for transportation to the selected landfill. This task will be performed the week of July 22-26. TASK B Ninyo and Moore will prepare a report documenting the soil removal, confirmation sampling, and transportation and disposal activities. The report will include data summary tables, figures,photographs, copies of laboratory reports, and soil disposal documentation. This task will be performed the week of July 29-August 2 unless otherwise acceptable to the City. TASK C Ninyo and Moore will provide laboratory testing and results by an appropriate testing laboratory, which will be performed on a 24 hour turnaround time. This task will be performed July 22-23. It is assumed that up to approximately 20 tons of shallow soil will be excavated, stockpiled or directly loaded into trucks, and transported and disposed of at an appropriate landfill by a contractor retained by City of Cupertino. If additional soil removal is required based on results of confirmation samples, additional field oversight and confirmation sampling activities may be required and additional budget may be requested. Fee Estimate Task A: $2,000.00 Task B: $1,000.00 Task C: $3,000.00 Total Fee: Not to Exceed$6,000.00 Cupertino-Ninyo&Moore Agreement Page A-1 Exhibit A EXHIBTT A SCOPE OF SERVICES AND FEE Based on field observations and test results of contaminants detected in shallow soil which was removed and contained in a drum on July 16, 2013, Ninyo and Moore has recommended the removal of additional shallow soil from the affected area and collection of confirmation soil samples to verify that impacted soil has been sufficiently removed to levels that are protective of human health and the environment. Task A Ninyo and Moore will provide excavation oversight. Ninyo and Moore will collect an anticipated eleven confirmation soil samples for analysis of total petroleum hydrocarbons as diesel(TPHd) and polycyclic hydrocarbons (PAHs). Ninyo and Moore will coordinate with landfills to arrange waste profiling and acceptance of excavated soil. If excavated soil is initially stockpiled, Ninyo and Moore will return to the site to oversee loading of soil from the stockpile into a truck for transportation to the selected landfill. This task will be performed the week of July 22-26. TASK B Ninyo and Moore will prepare a report documenting the soil removal, confirmation sampling, and transportation and disposal activities. The report will include data summary tables, figures,photographs, copies of laboratory reports, and soil disposal documentation. This task will be performed the week of July 29-August 2 unless otherwise acceptable to the City. TASK C Ninyo and Moore will provide laboratory testing and results by an appropriate testing laboratory, which will be performed on a 24 hour turnaround time. This task will be performed July 22-23. It is assumed that up to approximately 20 tons of shallow soil will be excavated, stockpiled or directly loaded into trucks, and transported and disposed of at an appropriate landfill by a contractor retained by City of Cupertino. If additional soil removal is required based on results of confirmation samples, additional field oversight and confirmation sampling activities may be required and additional budget may be requested. Fee Estimate Task A: $2,000.00 Task B: $1,000.00 Task C: $3,000.00 Total Fee: Not to Exceed$6,000.00 Cupertino-Ninyo&Moore Agreement Page A-1 Exhibit A Client#:704 NINYOMOORI ACORDTM CERTIFICATE OF LIABIL.ITY INSURANCE DATE( 013m) 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 -- 510 465-3090 Christine Silan INSURERS AFFORDING COVERAGE INSURED INSURER A: Travelers Property Casualty Co Ninyo&Moore Geotechnical& INSURER B: American Automobile Ins.Co. Environmental Sciences Consultants _INSURER C: Alterra Excess&Surplus Insura 1956 Webster Street,Suite 400 INSURER D: Oakland,CA 94612 1 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. INSR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS LTR DATE(MM/DD/YY) DATE(MM/DD/YY) A GENERAL LIABILITY 6308986R247 10/03/12 10/03/13 EACH OCCURRENCE $1,000,000 X COMM ERCIAL GENERAL LIABILITY FIRE DAMAGE(Any one fire) $1,000,000 CLAIMS MADE X OCCUR MED EXP(Any one person) $10,000 X Contractual PERSONAL&ADV INJURY $1,000,000 X OCP GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIM IT APPLIES PER: PRODUCTS-COMP/OP AGG $2,000,000 POLICY X PRO- JECT X LOC A AUTOMOBILE LIABILITY 8108986R247 10/03-/12 10/03/13 COMBINED SINGLE LIMIT X ANY AUTO (Ea accident) $1,000,000 ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) X HIRED AUTOS BODILY INJURY $ X NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO EA ACC $ OTHER THAN AUTO ONLY: AGG $ A EXCESS LIABILITY CUP8986R247 10/03-/12 10/03/13 EACH OCCURRENCE $9,000,000 X OCCUR CLAIMS MADE AGGREGATE $9,000,000 DEDUCTIBLE $ RETENTION $ _ $ B WORKERS COMPENSATION AND WZP81009371 05/01/13 05/01/14 X STATU- OTH- ER ER EMPLOYERS'LIABILITY E.L.EACH ACCIDENT $1,000,000 E.L.DISEASE-EA EMPLOYEE $1,000,000 E.L.DISEASE-POLICY LIMIT $1,000,000 C OTHER Professional MAX7PL0000506 10/03-/12 04/03/14 $5,000,000 per Claim &Contractor's $5,000,000 Annl Aggr. Pollution Liab. DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SP ECIAL PROVISIONS GENERAL LIABILITY POLICY EXCLUDES CLAIMS ARISING OUT OF THE PERFORMANCE OF PROFESSIONAL SERVICES. REF:ALL OPERATIONS OF THE NAMED INSURED.GENERAL LIABILITY/AUTOMOBILE LIABILITY ADDITIONAL INSURED: City of Cupertino and their affiliates,directors,officers,officials, partners, representatives,employees, consultants,subconsultants and agents.Insurance is primary per policy form.Waiver of Subrogation applies to Commercial General Liability,Automobile Liability and Workers Compensation Coverage. CERTIFICATE HOLDER ADDITIONAL INSURED;INSURER LETTER: 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 30 DAYS WRITTEN Attn: Gail Seeds NOTICE TOTH E CERTIFICATE HOLDER NAMED TO THE LEFT,BUT FAILURE TO DOSOSH ALL 10300 Torre Avenue INI POSE NO OBLIGATION OR LIAB ILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR Cupertino,CA 95014-0000 REPRESENTATIVES. AUTHORIZED REPRESENTATIVE (qt ACORD 25-S(7/97)1 of 1 #S593573/M583278 DAC © ACORD CORPORATION 1988 Insured: Ninyo&Moore Geotechnical& Policy Number: WZP81009371 Effective Date: 05/01/13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be % of the California workers' compensation premium otherwise due on such remuneration. SCHEDULE Person or Organization Job Description REF:ALL OPERATIONS OF THE NAMED INSURED.City of Cupertino and their affiliates, City of Cupertino directors,officers,officials,partners,representatives,employees,consultants, Attn:Gail Seeds subconsultarits and agents. 10300 Torre Avenue Cupertino,CA 95014-0000 Countersigned by 044'44 Authorized Representative Form WC 04 03 06 (1) Printed in U.S.A. Process Date: Policy Expiration Date: COMMERCIAL GENERAL LIABILITY POLICY NUMBER: 6308986R247 ISSUE DATE: 10/03/12 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. SCHEDULED ADDITIONAL INSURED _WRITTEN CONTRACT (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE NAME OF PERSON(S) OR ORGANIZATION(S): City of Cupertino Attn:Gail Seeds 10300 Torre Avenue Cupertino,CA 95014-0000 PROJECT/LOCATION OF COVERED OPERATIONS: NAME OF ADDITIONAL INSURED PERSON(S)OR ORGANIZATION(S)CONT.:City of Cupertino and their affiliates,directors,officers, officials,partners,representatives,employees,consultants,subconsultants and agents. PROVISIONS surance provided to the additional insured 1. The following is added to SECTION II - WHO IS shall be limited to the limits of liability required AN INSURED: by that "written contract requiring insurance". This endorsement shall not increase the limits The person or organization shown in the Sched- of Insurance described in Section III—Limits Of ule above is an additional insured on this Cover- Insurance. age Part, but: d. This insurance does not apply to the render- a. Only with respect to liability for"bodily injury", ing of or failure to render any "professional "property damage" or"personal injury"; and services" or construction management errors or omissions. b. If, and only to the extent that, the injury or damage is caused by acts or omissions of e. This insurance does not apply to "bodily in you or your subcontractor in the performance jury" or "property damage" caused by "your of "your work" to which the "written contract work" and included in the "products- requiring insurance" applies. The person or completed operations hazard" unless the organization does not qualify as an additional "written contract requiring insurance" specifi- insured with respect to the independent acts cally requires you to provide such coverage or omissions of such person or organization. for that additional insured, and then the insur- ance provided to that additional insured ap- The insurance provided to such additional plies only to such "bodily injury" or "property insured is limited as follows: damage" that occurs before the end of the pe riod of time for which the "written contract re- c. In the event that the Limits of Insurance of quiring insurance" requires you to provide this Coverage Part shown in the Declarations such coverage or the end of the policy exceed the limits of liability required by the period, whichever is earlier. "written contract requiring insurance", the in- CG D4 16 0508 ©2008 The Travelers Companies,Inc. Page 1 of 2 COMMERCIAL GENERAL LIABILITY 2. The following is added to Paragraph 4.a. of SEC- b. If a claim is made or "suit" is brought against TION IV-COMMERCIAL GENERAL LIABILITY the additional insured, the additional insured CONDITIONS: must: The insurance provided to the additional insured i. Immediately record the specifics of the shown in the Schedule above is excess over any claim or"suit" and the date received; and valid and collectible "other insurance", whether primary, excess, contingent or on any other ii. Notify us as soon as practicable. basis, that is available to the additional insured The additional insured must see to it that we for a loss we cover. However, if you specifically receive written notice of the claim or "suit" as agree in the "written contract requiring insurance" soon as practicable. that this insurance provided to the additional insured under this Coverage Part must apply on c. The additional insured must immediately a primary basis or a primary and non-contributory send us copies of all legal papers received in basis, this insurance is primary to "other connection with the claim or"suit", cooperate insurance" available to the additional insured with us in the investigation or settlement of which covers that person or organization as a the claim or defense against the "suit", and named insured for such loss, and we will not otherwise comply with all policy conditions. share with that "other insurance". But this insurance provided to the additional insured still d. The additional insured must tender the de- is excess over any valid and collectible "other fense and indemnity of any claim or "suit" to insurance", whether primary, excess, contingent any provider of other insurance which would or on any other basis, that is available to the cover the additional insured for a loss we additional insured when that person or or- cover. However, this condition does not affect ganization is an additional insured under any whether this insurance provided to the addi- "other insurance". tional insured is primary to that other insur- ance available to the additional insured which 3. The following is added to SECTION IV— COM- covers that person or organization as a MERCIAL GENERAL LIABILITY CONDITIONS: named insured. Duties Of An Additional Insured 4. The following is added to the DEFINITIONS Sec- tion: As a condition of coverage provided to the addi- tional insured: "Written contract requiring insurance" means that part of any written contract or agreement with the The additional insured must give us written person or organization shown in the Schedule notice as soon as practicable of an "occur- above, under which you are required to include rence" or an offense which may result in a that person or organization as an additional in- claim. To the extent possible, such notice sured on this Coverage Part, provided that the should include: "bodily injury" and "property damage" occurs and the "personal injury" is caused by an offense i. How, when and where the "occurrence" committed: or offense took place; a. After the signing and execution of the ii. The names and addresses of any injured contract or agreement by you; persons and witnesses; and b. While that part of the contract or agree- iii. The nature and location of any injury or ment is in effect; and damage arising out of the "occurrence" or offense. c. Before the end of the policy period. Page 2 of 2 ©2008 The Travelers Companies,Inc. CG D4 16 0508 2/2-7Z1VAIney0 Cgt V Or ARn talk a (ia'frf:.tnnu inrIFnvn,:nrrxcnt,it Sua'ntrs(t lsult.+nts SCHEDULE OF FEES HOURLY CHARGES FOR PERSONNEL Principal Engineer/Geologist/Environmental Scientist $ 154 Senior Engineer/Geologist/Environmental Scientist $ 148 Senior Project Engineer/Geologist/Environmental Scientist. $ 145 Project Engineer/Geologist/Environmental Scientist $ 142 Senior Staff Engineer/Geologist/Environmental Scientist $ 128 Staff Engineer/Geologist/Environmental Scientist $ 120 GIS Analyst $ 120 Field Operations Manager $ 95 Supervisory Technician $ 86 Nondestructive Examination Technician, UT,MT,LP $ 85 Senior Field/Laboratory Technician $ 79 Field/Laboratory Technician $ 79 ACI Concrete Technician $ 79 Concrete/Asphalt Batch Plant Inspector $ 79 Special Inspector(Concrete,Masonry,Steel,Welding,and Fireproofing) $ 79 Technical Illustrator/CAD Operator $ 78 Geotechnical/Environmental/Laboratory Assistant $ 66 Information Specialist $ 66 Data Processin.,Technical Editin.,or Re.roduction $ 58 OTHER CHARGES Expert Witness Testimony $ 400/hr Concrete Coring Equipment(includes one technician) $ 160 /hr PID/FID Usage $ 120/day Anchor load test equipment(includes technician) $ 89/hr Hand Auger Equipment $ 55/day Inclinometer Usage $ 32 /hr Vapor Emission Kits $ 30 /kit Level D Personal Protective Equipment(per person per day) $ 25 /p/d Rebar Locator(Pachometer) $ 22 /hr Nuclear Density Gauge Usage $ 12 /hr Field Vehicle Usage $ 10 /hr Direct Project Expenses Cost plus 15% Laborato testin., .eo.h sisal equipment,and other special equipment •rovided u.on resuest. NOTES (Field Services) For field and laboratory technicians and special inspectors, regular hourly rates are charged during normal weekday construction hours. Overtime rates at 1.5 times the regular rates will be charged for work performed outside normal con- struction hours and all day on Saturdays. Rates at twice the regular rates will be charged for all work in excess of 12 hours in one day or on Sundays and holidays. Lead time for any requested service is 24 hours. Field Technician rates are based on a 4-hour minimum.Special inspection rates are based on a 4-hour minimum for the first 4 hours and an 8- hour minimum for hours exceeding 4 hours. Field personnel are charged portal to portal. INVOICES Invoices will be submitted monthly and are due upon receipt.A service charge of 1.0 percent per month may be charged on accounts not paid within 30 days. TERMS AND CONDITIONS The terms and conditions of providing our consulting services include our limitation of liability and indemnities as pre- sented in Ninyo&Moore's Work Authorization and Agreement. Ce&erhead without Footer.doc = r, ill o& wore ; - ._ ,.- ,-.� _ tai C u•nit•r nns.r,in,t I rtvu,.:nr;<nt.d S vrif r'i C,!nuir.+nn SCHEDULE OF FEES FOR LABORATORY TESTING Laboratory Test, Test Designation, and Price Per Test Soils Concrete Atterberg Limits,D 4318,CT 204 $ 145 Cement Analysis Chemical and Physical,C 109 $ 1,650 California Bearing Ratio(CBR),D 1883 $ 440 Compression Tests,6x12 Cylinder,C 39 $ 22 Chloride and Sulfate Content,CT 417&CT 422 $ 135 Concrete Mix Design Review,Job Spec $ 140 Consolidation,D 2435,CT 219 $ 275 Concrete Mix Design,per Trial Batch,6 cylinder,ACI $ 750 Consolidation–Time Rate,D 2435,CT 219 $ 70 Concrete Cores,Compression(excludes sampling),C 42 $ 55 Direct Shear–Remolded,D 3080 $ 290 Drying Shrinkage,C 157 $ 250 Direct Shear–Undisturbed,D 3080 $ 250 Flexural Test,C 78 $ 50 Durability Index,CT 229 $ 150 Flexural Test,C 293 $ 55 Expansion Index,D 4829,UBC 18-2 $ 165 Flexural Test,CT 523 $ 60 Expansion Potential(Method A),D 4546 $ 145 Gunite/Shotcrete,Panels,3 cut cores per panel and test, ACI $ 250 Expansive Pressure(Method C),D 4546 $ 145 Jobsite Testing Laboratory Quote Geofabric Tensile and Elongation Test,D 4632 $ 165 Lightweight Concrete Fill,Compression,C 495 $ 40 Hydraulic Conductivity,D 5084 $ 300 Petrographic Analysis,C 856 $ 1,100 Hydrometer Analysis,D 422,CT 203 $ 190 Spitting Tensile Strength,C 496 $ 80 Moisture,Ash,&Organic Matter of Peat/Organic Soils $ 110 Reinforcing and Structural Steel Moisture Only,a sity, 2 226 $ 39 Fireproofing Density Test,UBC 7-6 $ 55 Permeability,and Density,D 2 D 2 CT $ 39 Hardness Test,Rockwell,A-370 $ 50 pH Hrand Resistivity,t CH,D 2434,CT 220 $ 230 High Strength Bolt,Nut&Washer Conformance,set,A-325 $ 120 Proctor c or i D 55 643 $ 140 Mechanically Spliced Reinforcing Tensile Test,ACI $ 95 Proctor Den-1y D(Rock D r 698,CT 216,& $ 180 Pre-Stress Strand(7 wire),A 416 $ 140 AASHTO 2844,CT 3k corrections add$80) Chemical Analysis,A-36,A-615 $ 120 Sand e,D 2844,CT 301 $ 250 Reinforcing Tensile or Bend up to No.11,A 615&A 706 $ 50 Sand Analysis,is, D 2,CT CT 217 $ 90 Structural Steel Tensile Test:Up to 200,000 lbs. Sieve Analysis,200 0 Wash,sh 2 1140, $ 110 (machining extra),A 370 $ 70 Sieve Analysis,,D Wash,D 1140,CT 202 $ 90 Welded Reinforcing Tensile Test Up to No.11 bars,ACI $ 55 Specific Gravity,D 854 $ 90 Thermal Resistivity(ASTM 5334,IEEE 442) $ 800 Tnaxial Shear,C.D,D 4767,T 297 $ 390 Asphalt Concrete Triaxial Shear,C.U.,w/pore pressure,D 4767,T 2297 per pt $ 330 Asphalt Mix Design,Caltrans $ 2,200 Triaxial Shear,C.U.,w/o pore pressure,D 4767,T 2297 per pt..$ 190 Asphalt Mix Design Review,Job Spec $ 150 Triaxial Shear,U.U.,D 2850 $ 140 Extraction,%Asphalt,including Gradation,D 2172,CT 310 $ 215 Unconfined Compression,D 2166,T 208 $ 100 Film Stripping,CT 302 $ 100 Wax Density,D 1188 $ 90 Hveem Stability and Unit Weight CTM or ASTM, CT 366 $ 195 Marshall Stability,Flow and Unit Weight,T-245 $ 215 Roofing Maximum Theoretical Unit Weight,D 2041 $ 120 Built-up Roofing,cut-out samples,D 2829 $ 165 Swell,CT 305 $ 165 Roofing Materials Analysis,D 2829 $ 500 Unit Weight sample or core,D 2726,CT 308 $ 90 Roofing Tile Absorption,(set of 5),UBC 15-5 $ 190 Roofing Tile Strength Test,(set of 5),UBC 15-5 $ 190 A-c gregates Absorption,Coarse,C 127 $ 35 Masonry Absorption,Fine,C 128 $ 35 Brick Absorption,24-hour submersion,C 67 $ 45 Clay Lumps and Friable Particles,C 142 $ 100 Brick Absorption,5-hour boiling,C 67 $ 55 Cleanness Value,CT 227 $ 120 Brick Absorption,7-day,C 67 $ 60 Crushed Particles,CT 205 $ 140 Brick Compression Test,C 67 $ 45 Durability,Coarse,CT 229 $ 130 Brick Efflorescence,C 67 $ 45 Durability,Fine,CT 229 $ 130 Brick Modulus of Rupture,C 67 $ 40 Los Angeles Abrasion,C 131 or C 535 $ 180 Brick Moisture as received,C 67 $ 35 Mcrtar making properties of fine aggregate,C 87 $ 275 Brick Saturation Coefficient,C 67 $ 50 Organic Impurities,C 40 $ 55 Concrete Block Compression Test,8x8x16,C 140 $ 60 Potential Reactivity of Aggregate(Chemical Method),C 289 $ 390 Concrete Block Conformance Package,C 90 $ 440 Said Equivalent,CT 217 $ 90 Concrete Block Linear Shrinkage,C 426 $ 120 Sieve Analysis,Coarse Aggregate,C 136 $ 105 Concrete Block Unit Weight and Absorption,C 140 $ 55 Sieve Analysis,Fine Aggregate(including wash),C 136 $ 105 Cores,Compression or Shear Bond,CA Code $ 55 Sodium Sulfate Soundness(per size fraction),C 88 $ 160 Masonry Grout,3x3x6 prism compression,UBC 21-18 $ 30 Specific Gravity,Coarse,C 127 $ 75 Masonry Mortar,2x4 cylinder compression,UBC 21-16 $ 30 Specific Gravity,Fine,C 128 $ 85 Masonry Prism,half size,compression,UBC 21-17 $ 110 Special preparation of standard test specimens will be charged at the technician's hourly rate. Ninyo&Moore is accredited to perform the AASHTO equivalent of many ASTM test procedures. CeSterhead without Footer.doc