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15-169 HMH Engineers, Inc. for consultant services for Lindy Ln Storm Drain Improvements DesignAGREEMENT BETWEEN THE CITY OF CUPERTINO AND HMH ENGINEERS INC. FOR CONSULTANT SERVICES FOR LINDY LANE STORM DRAIN IMPROVEMENTS DESIGN THIS AGREEMENT, for reference dated 'l / ~ 2015, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and HMH Engineers, Inc., a (California corporation) whose address is 1570 Oakland Road, San Jose, CA 95131 (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 preparation of topographic survey and storm drain improvement design drawings for proposed improvements on Lindy Lane, 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 the date this agreement is executed and shall terminate on December 31, 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". titled "Scope of Services" which is attached hereto and incorporated herein by this reference. 3. SCHEDULE OF PERFORMANCE: The Services of Consultant are to be completed according to the schedule set out in Exhibit B, titled "Schedule of Performance ", 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 Sixteen Thousand two Hundred Dollars ($16,200). The rate of payment is set out in Exhibit C, titled "Charge Rate Schedule", which is attached hereto and incorporated herein. Page 1 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements 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 relationship from any fees due 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. Chad Mosley. is hereby designated as the Director of Public Works' designee and Project Manager, and shall supervise the progress and execution of this Agreement. Page 2 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements 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 Joseph Streeper. 11. HOLD HARMLESS: A. Indemnity Obligations Subject to Civil Code Section 2782.8. 1. 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 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 or active negligence or willful misconduct of City, its agents or employees. 2. Notwithstanding the foregoing, the Consultant has no duty to provide or to pay for an up-front defense against unproven claims or allegations, but shall pay or reimburse the City for its reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation to the extent caused by the negligence, recklessness, or willful misconduct of Consultant or its employees, officers, officials, agents or independent contractors. However, the Consultant shall provide its immediate and active cooperation and assistance to the City, at no additional cost to the City, in analyzing, defending, and resolving such claims. B. Claims for Other Liability. For all liabilities other than those included within paragraph A. above, Consultant shall, to the fullest extent allowed by law, indemnify, defend, and hold harmless the 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 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. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees. C. Claims involving intellectual property. In addition to the obligations set forth in (A) and (B) above, Consultant shall indemnify, defend, and hold the City, its elected and appointed Page 3 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements 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. 12. INSURANCE: On or before the commencement of the term of this Agreement, Consultant shall furnish City with certificates showing the type, amount, effective dates and dates of expiration of insurance coverage in compliance with paragraph 12A, 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 before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino, 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 authorized to do insurance business in the State of California. Endorsements naming the City as additional insured in relation to the commercial general liability and commercial automobile liability policies 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: Commercial automotive liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Limit: $500,000 each accident (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 per claim and in the aggregate. B. SUBROGATION WAIVER: Page 4 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide commercial 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 commercial 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 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 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 worker's compensation and professional liability insurance, required by this Agreement. 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 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. 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. Page 5 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements 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. OWNERSHIP OF WORK: A. Any interest (including copyright interests) of Consultant and its subconsultants in each and every study, document, report, draft, memoranda, work product, map, record, plan, drawing, specification and other deliverable, in any medium prepared or created by Consultant or its subconsultants pursuant to or in connection with this Agreement, shall be the exclusive property of City. To the extent permitted by Title 17 of U.S. Code, all work product prepared or created 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 works prepared or created by Consultant or any subconsultant 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 Owner's prior written approval, Consultant may retain and use copies of such works for reference and as documentation of its experience and capabilities and in its promotional materials. With respect to Consultant's standard details, Consultant may retain the copyright, but grants to City a perpetual non-exclusive license to use such details in connection with the Project. B. Without limiting any other City right to any of the works prepared or created by Consultant or its subconsultants, all works 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 additions to the original project; and/or (4) Other City projects as appropriate. C. Any City reuse of works shall be subject to California Business and Professions Code Sections 5536.25, 6735, 6735.3 or 6735.4, if and to the extent applicable. Any City reuse of works for any purpose other than those in B(l) through B(3) above, and any modifications to any of the works, shall be at City's sole risk and expense. D. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. E. All written work required to be provided by this Agreement (other than large-scale architectural plans and similar items) shall be printed on recycled paper and shall be copied on both sides of the paper except for one original, which shall be single sided. F. No work, information or other data given to or prepared created or assembled by Consultant or any of its subconsultants pursuant to this Agreement, shall be made available to any individual or organization by Consultant or any subconsultant without prior approval by City. G. Electronic and hard copies of Consultant's work product shall constitute the Project deliverables. Plans shall be in CAD and PDF formats, and other documents shall be in Microsoft Word and PDF formats. Page 6 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements 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 there from 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. 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: Chad Mosley All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: 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. Page 7 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements 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, 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. 25. 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. 26. 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 19 of this Agreement. Page 8 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements 27. 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. 28. 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. Page 9 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements ADDENDUM O~~i& Wi~ TO AGREEMENT BETWEEN HMH ENGINEERS, INC. 1-+MH Pre~~ AND THE CITY OF CUPERTINO DATED SEPTEMBER 9. 2015 29. COMPLIANCES: Contractor shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. A. PREVAILING WAGES: To the extent applicable, Contractor shall comply with the City's Labor Compliance Program and all other requirements set forth in Labor Code section 1770 et seq. Contractor shall pay prevailing wages. Contractor will submit monthly certified payroll records to the City for all employees and subcontractors in a preapproved format or a City provided form. Any delay in remitting certified payroll reports to the City upon request from the City will result in either delay and/or forfeit of outstanding payment to Contractor. B. WORKING DAY: To the extent applicable, Contractor shall comply with California Labor Code Section 1810, et seq. which provides that work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, must be compensated as overtime, at not less than 1 1/2 times the basic rate of pay. C. PAYROLL RECORDS: To the extent applicable, Contractor shall comply with California Labor Code Section 1776 which requires certified payroll records be maintained with the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with this Agreement. The Payroll Records shall be made available for inspection as provided in California Labor Code Section 1776. D. APPRENTICES: To the extent applicable, Contractor shall comply with California Labor Code Section 1777.5 regarding apprentices. P.O. No.: '~l)/ b ·-S \ s- IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT HMH Engineers, Inc. Title I ( f"t?fM , (,v"e)Me-v' \I•~ 'P11e~ icJ.e.e,,f Date~q_{f{i~tb_ Tax I.D. No.:q.f .. "-32-l?f Z.7 CITY OF CUPERTINO A Municipal Corporation ~-~ ByC::::-~ Timm Borden, Director of Public Works Date°( j 21 / .1-5- l a (c.( J ~J APPROVED AS TO FORM: Address: _ '5°10 ~ a~ r-c:J () l '5o ... q-~ CA 'ffit~I ~ ~ ..J~ Korade, City Attorney ~v ATTEST: ~~Jl:J-1ol"1frr Grace Schmidt, City Clerk Contract Amount: $16,200 Account No.: 100-82-804 700-702 Page 10 oflO City of Cupertino HMH Engineers Inc. Agreement For Lindy Lane Storm Drain Improvements EXHIBIT A SCOPE OF SERVICES CONSUL TANT shall perform professional services as detailed in the following sections related to the design, bidding and construction for Storm Drain Improvements located on Lindy Lane, near 21943 Lindy Lane, Cupertino. SECTIONl. GENERAL A. General PROJECT Description: The PROJECT involves design development, construction document preparation, bid support, and construction administration services for storm drain improvements. The storm drain improvements include drainage inlets constructed on the North side of Lindy Lane, and the connection of the inlets to the existing public storm drain system (and as more specifically described in the Scope of Services provided in Exhibit D). The amount available for construction of the PROJECT, including contingencies for design, bidding, price escalations and construction management consultant services, but excluding compensation to CONSULTANT, is approximately ($55,000) FIFTY FIVE THOUSAND DOLLARS ("CONSTRUCTION BUDGET"). B. General Performance Requirements: 1. The performance of all services by CONSULTANT shall be to the satisfaction of the CITY, in accordance with the express terms hereof, including but not limited to the terms set out in detail in this scope of services and the standard of care provisions contained in this AGREEMENT. 2. The CITY's Department of Public Works shall manage the PROJECT and this AGREEMENT. CONSULTANT shall receive final direction from the CITY's Director of Public Works or his/her authorized designee (hereinafter collectively "CITY") only. The CITY shall resolve any conflicting direction from other groups, departments or agencies. 3. CONSUL TANT shall coordinate this scope of services with the CITY as well as with other CITY consultants and contractors, as needed or as directed by the CITY. CONSULTANT shall schedule meeting and prepare meeting agendas and minutes for all PROJECT meetings during the design phase under the scope of work. All minutes of meetings are due to the CITY within five (5) working days after the meeting. CONSULTANT shall provide copies of such documentation to the CITY, and as directed by the CITY, to other appropriate agencies and entities. CONSULTANT shall coordinate all responses to comments through the CITY. 4. CONSULTANT shall designate and provide to the CITY the names of their team members for the PROJECT. The team members shall be satisfactory to the CITY. HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits Page 1of10 CONSULTANT shall not substitute any team members without the prior approval of the CITY. 5. CONSULTANT's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly process of the work. The schedule for the performance included in EXHIBIT B, may be adjusted by mutual agreement. 6. CONSULTANT shall manage its SUBCONSULTANTS, and administer the PROJECT. CONSULTANT shall consult with the CITY, research applicable design criteria, and communicate with members of the PROJECT team. 7. When the CITY determines that the PROJECT requirements have been sufficiently identified, CONSULTANT shall prepare and update a PROJECT schedule for the CITY at the beginning of each TASK as defined in SECTION 2 - "TASK" of this EXHIBIT A. The PROJECT schedule shall identify milestone dates for decisions required of the CITY, design services furnished by CONSULTANT and CONSULTANT's SUBCONSULTANTS, dates of reviews and approvals required by all governmental agencies that have jurisdiction over the PROJECT, deliverables to be furnished by CONSULTANT, completion of documentation provided by CONSULTANT, commencement of construction and substantial completion of the construction of the PROJECT, and as identified in the exhibits under this AGREEMENT. 8. CONSULTANT shall submit construction documents to the CITY, according to SECTION 2-"TASKS", of this EXHIBIT A for purposes of evaluation and approval by the CITY. The CITY including the Department of Public Works Engineering will review the documents during each phase. CONSULTANT will meet with the CITY for progress review at various stages of the PROJECT. CONSULTANT will be responsible for causing the appropriate SUBCONSULTANT(S) to attend any meetings included in this SCOPE OF SERVICES. CONSULTANT shall make revisions to the construction documents as required for each task in a timely manner. 9. CONSULTANT shall assist the CITY, as requested by the CITY, in connection with the CITY' s responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the PROJECT, including submitting to the CITY' s Building Department for a building permit if required. C. Estimate of Probable Construction Cost: CONSULTANT shall be responsible to design the PROJECT and provide an Estimate of Probable Construction Cost consistent with the following procedures and requirements. 1. CONSULTANT shall be responsible for designing the PROJECT so that the Estimate of Probable Construction Cost is less than or equal to the CONSTRUCTION BUDGET established by the CITY for the PROJECT. The Project Construction Budget shall be provided by the CONSUL TANT as a summary sheet with submittal of each required Estimate of Probable Construction Cost, showing HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits Page2of10 comparisons of cost evolution for the PROJECT. As the design process progresses CONSULTANT shall update and refine the Estimate of Probable Construction Cost as required in SECTION 2 -"SCOPE OF SERVICES" of this EXHIBIT A. CONSULTANT shall advise the CITY in writing of any adjustments to previous Estimates of Probable Construction Cost indicated by changes in PROJECT requirements or general market conditions. 2. Should the Estimate of Probable Construction Cost exceed the CONSTRUCTION BUDGET, CONSULTANT shall, during the design phases of the project, revise, without additional cost to the CITY, the design documents and/or Construction Documents incorporating scope and quality changes to reduce the estimated costs for construction, to within the CONSTRUCTION BUDGET. CONSULTANT shall make changes only as approved by the CITY in writing. Reductions in scope may be required to meet the CITY' s budget, and the CITY will not unreasonably withhold permission for such reductions in scope order for the CONSULTANTS to meet the budget. Notwithstanding the foregoing, to the extent the Estimate of Probable Construction Cost exceeds the CONSTRUCTION BUDGET due to any program, design or budget changes, initiated and authorized by the CITY which are beyond CONSULTANT's control, any changes required in the design documents, shall be considered as Additional Services as noted in EXHIBIT C of this AGREEMENT. 3. In preparing the Estimate of Probable Construction Cost, CONSULTANT, in consultation with the CITY, shall do each of the following: (a) include contingencies for design, bidding, and price escalations to determine which materials, equipment, component systems and type of construction are to be included in the PROJECT, and (b) make reasonable adjustments and/or to value engineer various items in all required submittal cost estimates of the PROJECT, including alternate bids, in order to adjust the estimated construction cost to be less than or equal to the CONSTRUCTION BUDGET. 4. If bidding has not commenced within 90 days after CONSULTANT submits the Construction Documents to the CITY, CONSULTANT shall adjust the Estimate of Probable Construction Cost to reflect changes in the general level of prices in the construction industry. This will be an additional service. 5. CONSULTANT shall identify, develop and incorporate into the Construction Documents /1 Add or Deduct Alternate" construction cost elements that may be chosen to meet the City's budget. Alternates shall be approved by the CITY before being incorporated into the Construction Documents. 6. Should the lowest responsive bid exceed the CONSTRUCTION BUDGET by more than fifteen percent (15%), CONSULTANT shall, if directed by the CITY, submit without additional cost to the CITY, revised Construction Documents reflecting changes, approved by the CITY, to reduce the Construction Costs to within the CONSTRUCTION BUDGET. The CITY acknowledges that the HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits Page 3of10 SECTION2. CONSUL TANT does not control market conditions and agrees that they may allow reductions in scope in order to meet the CITY' s construction budget. TASKS TASK #1: Design Development This task shall include the following items: • Kickoff meeting with CITY (1 meeting) • Review of background information and previous plans for improvements • Perform site visit • Prepare topographic survey of the area. • Prepare first submittal of plans including cover sheet with notes and specifications; details sheet site improvement plan; BMP sheet (CITY supplied); Estimate of Probable Construction Cost. Plan set shall be on 22" x 34" for full size and 11" x 17" scalable at 50%. Submittal shall be in a pdf format for the plans and specifications. • Meet with CITY to discuss proposed improvements (1 meeting as needed) TASK #2: CONSTRUCTION DOCUMENTS: This task shall include the following items: • Meet with CITY to discuss first review comments (1 meeting as needed) • Prepare final construction documents based on further design development and first review comments. Provide CITY with a full size stamped and signed set of plans, also provide in a pdf and AutoCAD format electronic copies. • Prepare final estimate of probable construction cost, provide in MS Excel and pdf electronic format. TASK# 3: BID PERIOD AND CONSTRUCTION ADMINISTRATION SERVICES: This task shall include the following items: • Respond to bidder's question by assisting CITY with Addendum issuing.(1 budgeted) • Review Shop Drawings and Material Submittals (2 budgeted) • Respond to RFI's (1 budgeted) • Assist in Change Order review and preparation (1 budgeted) • Attend job site meeting (1 budgeted) • Prepare Record Drawing from Contractor As-built mark up. ADDITIONAL SERVICES Consultant Services beyond the work in these tasks may be provided by CONSULTANT as Additional Services only if such Additional Services are authorized in writing by the CITY Page 4of10 HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits in advance. An Additional services amount of TWO THOUSAND SEVEN HUNDRED DOLLARS ($ 2,700.00) is made a part of this agreement. Additional services may be paid for as a negotiated maximum not to exceed amount or by a time and materials cost accounting with a maximum not to exceed. HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits Page 5of10 EXHIBITB SCHEDULE OF PERFORMANCE CONSULTANT shall complete all work by September 15, 2015. The following sets forth the distribution of CONSULTANT's Schedule of Performance for each project. The CITY may approve in writing the extension of any milestone date set in this Exhibit. Task #1: Design Development Task#2 Construction Documents Task #3: Bid Period and Construction Administration Services Page 6of10 HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits 8 days after Notice to Proceed (NTP) for this phase 10 days after Notice to Proceed (NTP) for this phase 6 weeks after Notice to Proceed (NTP) for this phase A. Maximum Compensation. EXHIBITC COMPENSATION The CITY agrees to compensate CONSULTANT for professional services performed in accordance with the terms and conditions of this AGREEMENT. The maximum amount of compensation to be paid to CONSUL TANT under this AGREEMENT, including both payment for professional services, additional services and reimbursable expenses, shall not exceed SIXTEEN THOUSAND TWO HUNDRED DOLLARS($ 16,200). CONSULTANT agrees that it shall perform all of the services set forth in Exhibit A of this AGREEMENT, except for additional services required pursuant to Section 2, TASKS and inclusive of reimbursable expenses, for the maximum not to exceed amount of THIRTEEN THOUSAND FIVE HUNDRED SEVENTY DOLLARS ($ 13,500). The maximum amount of Additional Services are authorized under Section G of this EXHIBIT C is TWO THOUSAND SEVEN HUNDRED DOLLARS ($ 2,700). B. Method of Payment For Task Nos. 1through3 CONSULTANT shall, during the term of this AGREEMENT, invoice the CITY monthly based upon a percentage of completion of each milestone set forth below in the Payment Schedule (Schedule D below) for services performed, and reimbursable expenses incurred if applicable, in completing that milestone under this AGREEMENT. (Hereinafter "Invoice.") Provided CONSULTANT has completed the services and incurred the reimbursable expenses covered by the Invoice in accordance with the provisions of this AGREEMENT, as determined by the CITY, the CITY shall pay CONSULTANT the amount shown on the Invoice within thirty (30) working days of receipt of the Invoice. The Invoice shall be based on the percentage of milestone completed, and it shall describe the topics and tasks completed during the Invoice period in accordance with the Budget Schedule and Payment Schedule set forth below. The Invoice shall list work completed and reimbursable expenses if applicable, in accordance with the Budget Schedule and Payment Schedule set forth below. CONSULTANT also shall include supporting documents for any reimbursable expenses. The Invoice shall also show the total to be paid for the Invoice period. HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits Page 7of10 C. Budget Schedule The Budget Schedule for this AGREEMENT shall be as follows: Task #1: Task #2: Task #3: Task Description Design Development Construction Documents Bid Period and Construction Administration Services Additional Services TOTAL Task Compensation $ 7,600 $ 5,300 $ 600 $ 2,700 $16,200 CONSULTANT shall not exceed any of the specified budget amounts for any Task without prior written authorization from the CITY. The CITY may approve in writing the transfer of budget amounts between any of the Tasks listed above provided the total AGREEMENT amount does not exceed SIXTEEN THOUSAND TWO HUNDRED DOLLARS ($ 16,200). HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits Page 8of10 D. Payment Schedule The Payment Schedule for this AGREEMENT shall be as follows: TASK MILESTONE Task #1 -Design Development Prepare Topographic Survey Prepare First Submittal of Plans and Estimate Task #2 -Construction Documents Prepare Final Drawings and Estimate Task #3 -Bid Period and Construction Administration Services Construction completion Completion of Record Drawings Additional Services Paid Pursuant to Subsection C below E. Subconsultant Services. PERCENT OF TASK COMPENSATION PAID UPON COMPLETION OF MILESTONE 30% 70% 100% 80% 20% CONSULTANT is directly responsible for any payment for SUBCONSULTANT work on this PROJECT. SUBCONSULTANT work on this PROJECT is included in the Budget Schedule shown above and shall be billed to the CITY by CONSULTANT as part of the Basic Services. F. Reimbursable expenses. Reimbursable expenses are included in CONSULTANT's lump sum compensation, including, but not limited to, any expenses related to CONSULTANT's internal plan checks, CAD test prints, 8 1/2" x 11" copies or fax copies. Plotting and Printing for public distribution will be the responsibility of the CITY. There are no separate reimbursable expenses for Basic Services performed under Tasks 1-3 of EXHIBIT A. HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits Page 9of10 G. Additional Services. CONSULTANT shall not perform Additional Services without prior written authorization of the CITY. Additional Services shall be separately negotiated to be paid on a lump sum or a time and material basis at the rates set forth herein, as authorized by the CITY. The CITY has set aside the sum of TWO THOUSAND SEVEN HUNDRED DOLLARS($ 2,700.) for the payment of Additional Services. The CITY shall not authorize and CONSULTANT shall not perform any Additional Services that result in charges in excess of the above amount. CONSULTANT shall submit an Invoice to the CITY for payment on a monthly basis for authorized Additional Services rendered during the previous month. In the event Additional Services are authorized, CONSULTANT shall submit Invoices in accordance with the CONSULTANT hourly rate schedule attached to this EXHIBIT C. The rates shown in the EXHIBIT C-1 sHall stay in effect during the full term of the contract. The CITY shall pay Additional Services Invoices as provided in this EXHIBIT C. HMH Engineers Inc Lindy Lane Storm Drain Improvements Exhibits Page 10of10 EXHIBIT C-1 CHARGE RATE SCHEDULE Professional & Office Civil Engineering or Land Surveying Manager Senior Civil Engineering or Land Surveying Manager Land Development Manager Senior Planner Senior Civil Engineer, Land Surveyor, or Landscape Architect Design Specialist Project Planner Project Civil Engineer, Land Surveyor, or Landscape Architect Project Arborist Engineer, Planner, Surveyor, or Landscape Designer Assistant Engineer, Surveyor, Planner, or Landscape Designer Junior Engineer, Surveyor, Planner, or Landscape Designer Senior Technician Project Technician Technician Assistant Technician Junior Technician Project Support Staff 2-Man Field Crew 3-Man Field Crew 1-Man Field Crew Senior Field Engineer Field Services Principals are Charged at $200.00 to $340.00 per hour Printing, Reproductions & Materials at Cost, Plus 20% Transportation at Cost, including mileage based upon IRS rates Other Outside Services at Cost, Plus 20% Rates are subject to adjustment July 1, 2016. Client Initials Consultant Initials $ 172 per hour $ 192 per hour $ 168-240 per hr $ 194 per hour $ 156 per hour $ 148-180 per hr $174 per hour $146 per hour $ 136 per hour $138 per hour $126 per hour $116 per hour $130 per hour $120 per hour $112 per hour $102 per hour $ 86 per hour $ 84 per hour $ 236 per hour $ 310 per hour $ 164 per hour $ 156 per hour --1 IMI 1-- Job No. 4737.00 Date 812712015 Page 1 of 4 PROJECT DESCRIPTION Client: City of Cupertino IFOR REFERENCE ONL y I EXHIBIT "D" Project Name Lindy Lane Storm Drain APN(s) I n/a Project Address 21862 Lindy Lane City I Cupertino Client Initials Consultant Initials Description Prepare plans to install two new catch basins on the north side of Lindy Lane, and connect them to the existing storm drain system. SCOPE Of SERVICES 220 Topographic Field Survey Perform field topographic surveys to obtain locations of utility surface facilities, and inverts of accessible storm drain manholes, inlets and sanitary sewer manholes. Obtain locations and sizes of significant trees and other existing features that may affect the design. Obtain existing pavement elevations at points of conform and other spot elevations needed for design. 430 Design -Plans and Estimate Obtain and review available data and information pertinent to the project from the City, County, utilities, and other agencies. Such information may include the following: • Aerial photos, topographic base sheets, master plans or record drawings of City and County facilities. • Record drawings of existing utility systems obtained from PG&E, AT&T, local water companies, cable TV and other utility service providers. Develop plans to establish fundamental elements of the design. The proposed plans for this project include: • Title/Index Sheet with Standard Notes (1 sheet) • Standard Details (1 sheet, with images of City Standards) • Drainage Plan (1 sheet) The City of Cupertino will have the opportunity to thoroughly review the details of the project and provide comments to HMH. Upon receipt of comments, the plans will be revised one time for final submission to the City. -t IMI i- Job No. 4737.00 Date 8/2712015 Page 2of4 Client Initials Consultant Initials Prepare an estimate of probable construction cost based on items and quantities of work shown on the plans and other anticipated. improvements. Prices will be based on the magnitude of the quantities, our experience with similar local projects and engineer's judgment. Post Design Services Make available project staff to answer questions during the bidding and construction. Assist City in preparation of addenda to the bid documents or design revisions to meet field conditions. Addenda to include changes beyond the control of HMH will be considered as extra services. BURIED UTILITIES Client authorizes Consultant and/or his subconsultants to conduct research of existing utility facilities necessary to prepare plans indicating the locations intended for underground improvements. Such services by the Consultant or his subconsultant will be performed in a manner consistent with the ordinary standard of care. The Client recognizes that the research may not identify all existing underground improvements and that the information upon which the Consultant relies may contain errors or may not be complete. DUTIES OF CLIENT The following activities are the responsibility of Client. This is not intended to represent a complete list but is included for additional clarity. • Provide copies of available plans, exhibits, records and data pertinent to the project. • Provide Consultant with permission to enter the grounds as necessary to perform the services. • Pay the cost of all fees, permits, and other charges not specifically included in this Agreement as a Consultant responsibility. • Provide construction supervision, inspection, administration, and coordination. • Obtain off-site easements and right-of-way as required to complete the project. SPECIAL PROVISIONS This Agreement does not constitute any express or implied warranty that the jurisdictional agencies will approve the applications. Consultant may utilize computer aided design and drafting software and other applications of Consultant's choice in providing the services in this Agreement. File structure and +IMI f- Job No. 4737.00 Date 8/27/2015 Page 3of4 Client Initials organization of data shall be at Consultant's discretion, and are intended only for Consultant's use on the project. Consultant Initials The following services may be required for successful completion of the project, but are specifically not included in this scope of services. Consultant may provide some of these services pursuant to the "Changes in Services" section of this agreement, or Client may engage others to provide these services. This is not intended to represent a complete list, but is added only for clarity. • Environmental Impact Reports, Special Studies and Reports (Noise, Traffic, Biotic, etc.) or Phase I or Phase II analysis. • Uncovering or potholing existing underground facilities. • Record of Survey maps. • Structural, mechanical, electrical, or geotechnical engineering, including plans or calculations for structural excavations and sheeting or shoring. • Subsurface water drainage (subdrains), dewatering facilities and pumping stations and force mains for storm drainage and sanitary sewer. • Electrical, telephone, gas, or cable T.V. facilities including joint trenches. • Profile views of the street or drainage facilities. • Surface models. • Storm drain hydrologic or hydraulic calculations. • Special details not shown on Standard Plans CHANGES IN SERVICES Client may request changes in scope of or character of service, either decreasing or increasing the amount of Consultant's services. In the event that additional services not included in the Scope of Services are required, or if the Client requests changes and revisions after Consultant has performed the services in the Scope of Services, Client agrees to pay for all such additional services and expenses incurred, on a charge rate basis in accordance with Consultant's Charge Rate Schedule. COMPENSATION For providing the services included in the Scope of Services, Client shall compensate Consultant as follows: Services performed on a Charge Rate (CR) basis as designated below shall be invoiced based upon the actual hours expended by each employee classification for the services performed on the project multiplied by the hourly charge rate for that employee classification as shown on the Charge Rate Schedule in effect at the time the services are -t IMI f.-, Job No. 4737.00 Date 8/27/2015 Page 4of4 Client Initials Consultant Initials performed. An initial, estimated budget has been established for each Charge Rate task; Consultant will request authorization if additional budget is required to complete charge rate tasks. Professional Service Fees are as follows: Description 220 Topographic Field Survey 430 Design -Plans and Estimate Post Design Services TOTAL (not to exceed): $ 2300 CR 10,600 CR 600 CR $13,500 Billings will be made every month for the services performed within the preceding month and are payable upon receipt. Reimbursable Expenses Client shall reimburse Consultant for reimbursable expenses excluded from the Basic Services at cost plus twenty percent (20%) for processing. Such reimbursable expenses may include: reproduction of plans and documents, overnight mail, delivery and courier services. APPROVED and ACCEPTED Client: Consultant: HMH Printed Name Printed Name Title Title Date Date -t IMl-t-