14-080 Yarne & Associates Inc. for a water supply evaluation for the General Plan Amendment OFFICE OF THE CITY CLERK
CITY HALL
La 10300 TORRE AVENUE •CUPERTINO, CA 95014-3255
TELEPHONE:(408)777-3223• FAX: (408)777-3366
C U P E RT I N O WEBSITE:www.cupertino.org
May 12, 2014
Yarne & Associates, Inc.
1611 Borel Place, Suite 200
San Mateo, CA 94402
Re: Agreement for consultant services fora Water Supply Evaluation.
A fully executed copy of the agreement for consultant services with the City of
Cupertino is enclosed. If you have any questions or need additional information, please
contact the Community Development Department at (408) 777-3308.
Sincerely,
Andrea Sanders
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Community Development
AGREEMENT BETWEEN THE CIT'r OF CUPERTINO AND YARNE &
ASSOCIATES,INC, FOR CONSULTANT SERVICES FOR A WATER
SUPPLY EVALUATION FOR THE GENERAL PLAN AMENDMENT
THIS AGREEMENT, for reference dated March 141", 2014, is by and
between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to
as "City"), and Yarne & Associates, Inc, a California corporation, whose address
is 1611 Borel Place, Suite 200 San Mateo, California, 94402 (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 the water
supply evaluation for the proposed General Plan Amendment upon 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 March 14th, 2014, and shall
terminate on Tune 301h, 2015,unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A"
which is attached hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT:
Consultant shall be compensated for services performed pursuant to this
Agreement in the amount not to exceed FIFTEEN THOUSAND, FOUR
HUNDRED EIGHTY DOLLARS ($15,480). Payment shall be made by checks
drawn on the treasury of the City, to be taken from the 265-7405-9330 fund.
4. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the
performance of this Agreement.
5. 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.
6. 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 note 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 relationship from any fees due
Consultant. Payments of the above iterrs, if required, are the responsibility of
Consultant.
7. IMMIGRATION REFORM AND CONTROL ACT QRCA):
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 IRC.A 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.
8. 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.
9. HOLD HARMLESS:
Indemnification:
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, whether
physical, emotional, consequential or otherwise, arising out, pertaining to, or
related 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.
A. Claims for Professional Liability. Where the law establishes a standard
of care for Consultant's professiional 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 tithe 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 Liabib4E.. 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.
10. 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 10A, B, C, D 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
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 Californda. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
la Consultant shall maintain the following insurance coverage:
(1) Workers' Compensaiion:
Statutory coverage as:required by the State of California.
(2) Liabili
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: 1 -100,000 each occurrence
or
Combined Single Uinait: $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
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 die 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 costs 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 determvle adequate coverage for Consultant.
11. 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.
12. PROHIBITION AGAINST TRAINISFERS: .
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 of 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
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.
13. SUBCONTRACTOR APPROVAL.:
Unless prior written consent from City is obtained, only those people and
'subcontractors whose names and resumes are attached to 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.
14. 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.
15. 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:
(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent addition.,;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.
16. 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.
17. 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 Avenue
Cupertino CA 95014
Attention: Aarti Shrivastava
All notices, demands, requests, or approvals from City to Consultant shall
be addressed to Consultant at:
Yarne &Associates, Inc
1611 Borel Place, Suite 200
San Mateo, CA 94402
Attn:Jeffery L Yarne
18. TERMINATION:
In the event Consultant fails or rejhises 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 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.
19. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances,
rules and regulations enacted or issued by City.
20. 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.
21. 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.
22. 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
r the same or any other term, covenant, or condition contained herein, whether of
the same or a different character.
23. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every
h.' 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.
24. 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 vicluded 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.
25. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of
the Agreement and in no way affect, limit: or amplify the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parl:ies have caused the Agreement to be
executed.
CONSULTANT CITY OF CUPERTINO
Yarne&Associates,Inc A Municip Corporation
BY Ity- G eAr-
Tit e Title Associate Planner
Date 201 4-- Date ME, 5 2014
F:L'ME ED F APPROVAL:
O///�
Title_-Assist. Director, Comm Development
AS TO FORM:
Carol Korade, City Attorney
A,� TEST:
Grace Schmidt, City Clerk
EXPENDITURE DISTRIBUTION 1
ACCOUNT NUMBER AMOUNT
265-7405-9330
PO #
Total: ,$115,480.00
Yarne&Associates, Inc. Water Management Consulting Services
April 4,2014 Exhibit A
Mr. George Schroeder
Associate Planner
City of Cupertino Planning Division
10300 Torre Avenue
Cupertino, CA 9504
Re: Proposal to City of Cupertino to Prepare;;a Water Supply Evaluation for the
Proposed General Plan Amendment for the City of Cupertino, CA
Dear George:
Per your review comments, I am submitting the following revised proposal for your
review and approval.
Introduction
As part of the requirements to amend its General Plan, the City of Cupertino must prepare
a California Environmental Quality Act Environmental Impact Report (EIR). Adequacy
of potable and non-potable water supply is one of the topics to be addressed in the EIR.
c To address that topic,a water supply evaluation that follows the guidelines for
preparation of a SB 610 Water Supply Assessment is proposed. An evaluation of existing
and future water supply adequacy will be based on the projected supplies and increases in
water demand within the respective service bowidaries of San Jose Water Company
�. (SJWC) and California Water Supply Company(Cal Water).
i Proposed Scope of Work
To accomplish the above stated objective,Jeffery Yarne of Yarne &Associates, Inc.
(YAI)will.perform the following tasks. A prelininary estimate of the time required to
complete each task is also indicated.
Task 1: Review existing and proposed land use changes and related information from the
City of Cupertino pertaining to the general planncndment.Review and evaluate the
most recent background studies, data, and other-documents on water demand and supply
in SJWC''s and Cal Water's respective service areas within Cupertino. This will include
review and assessment of recycled water supply from the City of Sunnyvale. (8 hours)
Task 2: Interact with representatives of SJWC, Cal Water, SCV WD,the City of
Cupertino, and the EIR consultant as necessary to obtain current information on the
proposed general plan amendment land use changes by location and area,type of
development,preliminary estimates of the number of units,and phasing over estimated
time. (10 hours)
1611 Borel Place,Suite 200
San Mateo, California 94402 Ph: 650-574-1030 Fax: 650=574-6850
8(-690
Yarne & Associates, Inc. Water Management Consulting Services
Task 3: Prepare a draft water evaluation report and submit it to the City of Cupertino, and
other parties the City may designate for review and comment (24 hours)
Task 4: Revise the draft report per comments received. (8 hours)
Task 5: Prepare and submit a final water evaluation report to the City. (8 hours)
Task 6: Interact with City staff, its EIR consultant and representatives of SJWC and Cal
Water to discuss report findings, conclusions and recommendations. (8 hours)
Budget
The proposed budget for accomplishing the Tasks 1 through 6 will be done on a time and
expenses basis with the total cost not to exceed the amount indicated below without prior
authorization by the City. In the event that additional tasks are identified or that a greater
level of effort and hence time is required to accomplish the tasks, YAI will notify the
City of the anticipated additional work or increased labor effort and will negotiate the
associated labor costs and expenses adjustments prior to proceeding with the work.
Estimated Labor Costs: J. Yarne: 66 hours x $230/hour = $15,180
Expenses (mileage, phone, DSL, postage, misc.) = $300
Total not to exceed amount: $15,480
Schedule
The schedule for accomplishing the Tasks 1 through 6 assuming the availability of
information required for the proj ect is made available by 8 April 2014 is to prepare and
submit a Draft WSE for City review by 28 April 2014. Assuming 1 week for all review
comments to be received by YAI, the final document is projected to be submitted by 13
May 2014
Terms and Conditions
YAI's services for the work to be performed will be procured through a City of Cupertino
purchase order and will be governed by the City's standard terms and conditions, a copy
of which will be provided to YAI for review and acceptance.
Please let me know if this accurately summarizes the City's requirements for this project
and the terms set forth in this proposal are acceptable or if you have any questions or
comments.
Thank you for the opportunity to be of assistance to the City of Cupertino.
Sincerely,
Jeffery L. Yarne
1611 Borel Place, Suite 200 2
San Mateo, California 94402 Ph: 650-574-1030 Fax: 650-574-6850