Loading...
16-022 John Cahalan, Landscape Architect for Consultant Services for the De Anza Median Landscape Design ManualFIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND JOHN CAHALAN LANDSCAPE ARCHITECT FOR CONSULTANT SERVICES FOR DE ANZA MEDIAN LANDSCAPE DESIGN MANUAL. P.O. No. 2016-472 This 1st Amendment to the Consultant Services Agreement between the City of Cupertino and Jolrn Cahalan Landscape Architect, for reference dated February 29, 2016, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and John Cahalan Landscape Architect, a California sole proprietor, whose address is 15559 Union Avenue, Ste. 206. Los Gatos. CA 95032 (hereinafter "Consultant"), and is made with reference to the following: RECITALS: A. On February 29, 2016, an agreement was entered into by and between City and John Cahalan Landscape Architect (hereinafter "Agreement"). B. City and John Cahalan Landscape Architect 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 1, Term of the Agreement is modified to read as follows: The term of this Agreement shall commence on the date of the executed agreement and shall terminate on November 30, 2016, unless terminated earlier as set forth herein. 2. EXHIBIT B PERFORMANCE SCHEDULE: All work under this Consultant Agreement shall be completed by November 30, 2016. Exce pt 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. P.O. No.: 2016-472 ties hereto have caused this modification of Agreement to be executed. Title f'f2::lNC{~ Date l '5 ( '2£/{ ~ Tax I.D . No.: 546-78-5482 15559 Union A venue, Ste. 206 Los Gatos, CA 95032 Amendment #1 De Anz a Median Landscape Design Manual JCLA Agreement CITY OF CUPERTINO A Municipal Corporation ~ Date_f_C>~/~i_L~{ ~' }.., __ APPROVED AS TO FORM: ;;, ~ Randolph Stevenson Hom, City Attorney ATTEST: fur~1 1J± fl ,l-f < /& Grace Schmidt, City Clerk Consultant compensation increased $0 by this amendment. Contract Amount: $ 32,000.00 Account No. : 420-90-904-900-905-SPCT 003-02-02 Page 1 of 1 October 24, 2016 ,,.\.\(Q ~ AGREEMENT BETWEEN THE CITY OF CUPERTINO AND JOHN CAHALAN, LANDSCAPE ARCHITECT FOR CONSULTANT SERVICES FOR THE DE ANZA MEDIAN LANDSCAPE DESIGN MANUAL THIS AGREEMENT, for reference dated February 29, 2016 is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and Tohn Cahalan, Landscape Architect (TCLA), a California sole proprietor, whose address is 15559 Union Avenue, Ste. 206, Los Gatos, CA 95032 (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 a professional services agreement for the De Anza Median Landscape Design Manual 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 July 29, 2016, 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 CONSUL TANT: The maximum compensation to be paid to Consultant under this agreement shall not exceed twenty five thousand hundred DOLLARS ($25,000.00). The rate of payment is set out in Exhibit C, titled "Compensation", 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 De Anza Median Landscape Design Manual JCLA Agreement City of Cupertino Page I of9 February 29 , 2016 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 URCA): 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. PROTECT COORDINATION City: Director of Public Works shall be representative of City for all purposes under this Agreement. Katy Tensen, CIP Contract Mana~er, is hereby designated as the Director of Public Works' designee and shall supervise the progress and execution of this Agreement. The City Project Manager designee shall be Bruce E. Biordi, Consultant Project Manager. CONSUL TANT: 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 De Anza Median Landscape Design Manual JCLA Agreement C ity of Cupertino Page2of9 February 29, 2016 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 Tohn Cahalan. 11. HOLD HARMLESS: A . Indemnity Obligations Subjec t 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 b reaches or fails to meet s uch 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 o f Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and ex penses shall include reasonable attorneys' fees of counsel of City's choice, ex p ert fees and all other costs and fees of litigati on. Consultant s hall n o t be obligated und er this Agreement to indemnify City to the extent tha t the damage is caused by the sole o r active n egligence or willful misconduct of City, its agents or employees. 2 . Notwithstanding the foregoing, the Consultant has n o duty to provid e or to pay for an up-fro nt d efense against unproven claims or allegations, but shall pay o r reimburse the City for its reasonable attorneys' fees of counsel of City's choice, expert fees and all o th er costs and fees of litigation to the ex tent caused by the negligence, recklessness, o r willful misconduct of Consultant or its employees, officers, offic ial s, agents or independent contractors. However, the Consultant shall provide its immediate and active cooperation and assistance to the City, at no additional co s t to the City, in analyzing, defending, and reso lving such claims. B. Claims for Other Liability. For all liabilities other than those included within paragraph A. above, Consultant shall, to the full es t ex te nt allowe d by law, indemnify, defend, and hold h armless the City and its office rs , o fficial s, agents, employees and volunteers against any and all liability, claims, actions, causes of action o r demands whatsoever from and again s t any of th e m, including any injury to or death of any person or damage to property or o ther liabili ty of any nature, that arise o ut of, p ertain to, or relate to the p erformance of this Agreem e nt b y Consultant or Consultant's employees, officers, officials , agents or independent contractors. Such co s ts and expenses shall include reasonable attorneys' fees of co unsel of City's ch o ic e, expert fees and all o ther costs and fees o f litigation. Consultant shall n ot be o bligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or w illful misco nduct of City, it s agents or employees. C. Claims involving intellectual prope rty . In addition to the o bli gations set forth in (A) and (B) above, Consultant shall indemnify, defend, and hold th e City, its e lected and appointed officers, employees, and vo lunteer s, h armless from and against any Claim in w hich a violation of inte ll ec tu al property rights, including but not limited to copyright o r patent rights, is alleged that arises o ut of, pertains to, or relates to Consultant's negligence, recklessness or willful misconduct De Anza Median Landscape Design Manual JCLA Agreement P age 3 of9 February 29 , 20 16 C ity of C upertino 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 paragraphs 12A, B, C, D and E. Such certificates, which do not limit Consultant's indemnification, shall also contain substantially the following s tatement: "Should any of the above insurance covered by this certificate be canceled before the expiration date thereof, the insurer affording coverage s hall 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: B. (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: Property Damage: $5 00,000 each occurrence $1,000,000 aggregate -all other $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 includ es 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. SUBROGATION WAIVER : Consultant agrees that in the event of loss due to any of the perils for which he/s he 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 respec t to the services of De Anza Median Landscape Design Manual JCLA Agreement City of Cupertino Page 4 of9 February 29, 2016 Consultant herein, a waiver of an y right to subroga ti on which any such insurer of said Consultant may acquire against City by v irtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Consultant at any time during the te rm hereof should fail to secure or maintain the foregoing ins urance, City shall be permitted to obtain such ins urance 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 la w and computed from th e date w ritten n o tic e is received that the p remiums have not been paid. D . ADDITIONAL INSURED: City, its City Council, boards and commissions, o ffic ers, employees and vo lunteers shall be name d as an additional in sured under all insurance coverages, except any worker's compensation and professional liability insurance, required by this Agreem ent. An additional insure d n a med herein shall not be held liable for any premium, deductible p o rtion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance h e ld by an additional insured sh a ll not be required to contribute anything toward any loss or expense covered by the insurance provi ded by this p o licy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as be ing sufficient to protect Consultant. Consultant is advised to confer wi th 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 thi s Agreement. Consultant may be required to fill out a co nflict of interest form if the services prov ided under this Agreement require Consultant to make certain governmental decisions or serve in a staff ca p acity as defined in Title 2, Division 6, Section 18700 of the Cali fornia Code of Regulations. 14 . PROHIBITION AGAINST TRANSFERS: Consultant shall n o t assign, sublease, h ypotheca te, or transfer this Agreement, or any interes t therein, directly o r indirectly, by o peration of law or otherwise, without prio r written co nsent of City. Any attempt to do so without said consent s hall be null and vo id, and any assignee, s ublessee, h y p othecate o r transferee s hall acquire no right or in terest by rea son of such attempted assig nment, h ypothecation or transfer. However, claims for money by Co nsultant from City und er thi s Agr ee ment may b e assigned to a bank, trust co mpany or o ther financial in s titution without prior wri tten consent. Written n o tice of such assignment shall b e promptly furnished to City by Con sulta nt. The sale, assignment, transfer or oth er disposition of any of the issued and o uts tanding capital s to ck of Co n s ultant, or of the interest o f any gen eral partner o r joint venturer or syndicate member or co tenant, if Consultant is a p artnership or jo int venture o r syndicate or co tenancy, which s hall result in changing the control of Consultant, shall be construed as an assignment of this Agreem ent. Control m ea ns fifty p ercent (50%) or more of the vo tin g powe r o f the cor p orati on. 15. SUBCONTRACTOR APPROVAL: Unless prior writte n co nsen t from City is obtained, only those people and subcontractors w h ose names are included in this Agreement s hall be used in the performance of this Agreement. In the even t that Co n sultant employs s ubcontractors, s uch subcontrac tors shall be required to furnish proof of workers' compensation insurance and sh all also be required to carry general, automobile De Anza Med ian Landscape Design Manual Page 5 of9 JCLA Agree me nt February 29 , 20 16 C ity of Cupertin o 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 (1) 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 Auto CAD (.dwg) and Adobe (.pdf) formats, and other documents shall be in Microsoft Word (.docx) and (.pdf) formats. 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. De Anza Median Landscape De s ig n Manual JCLA Agreement C ity of Cupertino Page 6 of9 February 29 , 2016 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, r egistered o r 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: Katy Jensen, CIP Contract Manager All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: 20. John Cahalan, Landscape Architect 15559 Union Avenue, Ste. 206 Los Gatos, CA 95032 Attention: John Cahalan, Principal 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 effec tive 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 o r federal laws and all ordinances, rules and regulations enacted or issu ed by City. De Anza Median Landscape Design Manual JCLA Agreement C ity of Cupertino Page 7 of9 February 29 , 20 16 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. B. WORKING DAY: To the extent applicable, Contractor shall comply with California Labor Code Section 1810, e t 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 ½ 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. 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, Sta t e 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 d eemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained h erein, 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 De Anza Median Landscape Design Manual JCLA Agreement C ity of Cupert ino Page 8 of9 February 29 , 20 16 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. 27. IN SER TED 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 n o way affect, limit or amplify the terms or provisions of this Agreement. P.O. No.: ?-Otb -':f 71._ IN WITNESS WHEREOF, the parties have caused the Agreement to be executed: Name: XoH:N CAH-ALbN Title: t.:>Wblf32-./ tf2:INClfAt... Date: "? /1 / l '- Tax I.D . No.: 13¼·:7g1· 9ffi''2-. Address: 15559 Union Avenue, Ste. 206 Los Gatos, CA 95032 De Anza Median Landscape Design Manual JCLA Agreement City of Cupertino CITY OF CUPERTINO :y~ Timm Bo:-:1,}))rector of Public Works Date: &L1j_!_ (,, re Randolph Stevenson Hom, City Attorney ATJBpT-r-J ... ,.1 e_C'{l,tj,~Kf lfd: 3~ f .-/ '7 Grace Schmidt, City Clerk Contract Amount: $25,000.00 Account#: Z7o-9o.qc,o 1-C,oo-qos;-:,T oo"3 -0-Z..·0""2.. Page 9 of9 February 29 , 2016 EXHIBIT A SCOPE OF SERVICES The CONSULTANT shall perform professional services as detailed in the following sections to produce De Anza Median Landscape Design Manual for the segment from 1-280 to Bollinger Road in Cupertino. SECTION 1.0 GENERAL 1.10 Project Description: The CONSUL TANT shall perform professional Landscape Architectural services necessary to produce a landscape design manual for the segment of De Anza Boulevard from 1-280 to Bollinger Road in Cupertino. 1.11 The CONSUL TANT shall provide all professional services necessary required to complete the tasks identified in the Scope of Services. All services performed by the CONSULTANT shall be to the City's satisfaction and consistent with the standard of care provisions in this AGREEMENT. 1.12 The CITY's Department of Public Works shall manage the PROJECT and this AGREEMENT. The CONSULTANT shall receive project direction only from the CITY's Director of Public Works or their authorized designee (hereinafter collectively "CITY"). The CITY s hall resolve conflicting direction from other groups, departments, or agencies. 1.13 The CONSULTANT shall coordinate the project scope of services with the CITY, other CITY consultants, contractors or agencies as needed or directed by the CITY. 1.14 The CONSULTANT shall manage and administer all .sub consultants used in completion of the project scope of services. 1.15 Deliverables identified in each Task provide the basis for fee compensation. Any deficiencies in the minimum work items identified shall cause the CITY to reject the entire submission, require the CONSULTANT to make appropriate corrections, and resubmit, at no cost to the CITY. Earned value for submissions according to the EXHIBIT C, Compensation Schedule shall not be considered until the Task Deliverables are accepted by the CITY. SECTION 2.0. SCOPE OF SERVICES TASK 1.0 PREDESIGN ACTIVITIES-PROTECT DAT A 1.10 The CONSUL TANT shall review all existing project data available from the CITY, evaluate it for use as the project baseline information, and notify the CITY, in writing, if additional information is required. 1.20 Site Reconnaissance #1: The CONSULTANT s hall visit the site to investi gate and document exis ting conditions. De Anza Median Landscape Design Manua l JCLA Agreement C ity of C upertino Exh ibit A Page I of 4 February 29 , 2016 1.30 Arborist Report: The CONSULTANT shall provide a licensed arborist's report for the existing median trees within the project limit of work. The report shall include, at a minimum, a health assessment for existing trees greater than 4" diameter at breast height ( dbh), recommendations for preservation, pruning, general tree maintenance, removal, where prudent, and desirable replacement genus and species. 1.40 Base Sheet Preparation: Using the digital "hard copy" of the original landscape plans identified below, prepare a base sheets (CAD background) for use as key maps and exhibits in the guidelines manual. (a) De Anza Medians from Bollinger Road to Stevens Creek Blvd.: 1981, 7 plan base sheets, 1"=20' -0" scale. Prepared by Kier & Wright Engineers and Jim Coleman, Landscape Architect. (b) N. De Anza Blvd. from Stevens Creek Blvd. to Interstate 280: 1979, landscaping, boulders, arbors, and entry sign . Plans prepared by City of Cupertino Public Works Dept. and Jim Coleman, Landscape Architect. 1.50 Site Reconnaissance #2: The CONSUL TANT shall visit the site, verify previous observations of existing conditions and make revisions to the base sheets to capture existing landscape and irrigation median conditions. Task 1.0 DELIVERABLES: 1 .30 Arborist Report 1.40 Project base maps with existing conditions (one hard copy each and electronic pdf files,) End of Task 1.0 TASK 2.0: 65 % De Anza Median Landscape Design Manual 2.10 The CONSULTANT shall attend a kick off meeting with the CITY Public Works staff to review project scope, base maps, existing conditions, obtain staff input, and clarify the project schedule. The CONSULTANT shall provide a kickoff meeting agenda a minimum of five business days prior to the meeting and a written meeting summary to the CITY within five (5) business days after the meeting. 2.20 The CONSUL TANT shall incorporate the project data, base sheets, and direction from the kick off meeting into a 65% draft De Anza Median Landscape Design Manual and submit it to the CITY for review. The manual shall include the following, at a minimum: (a) Report Objectives and Project Description: Prepare report general format including cover sheet, executive summary, table of contents, introduction (goals and objectives), key map, and existing conditions (site photos with descriptions). De Anza Median Landscape Design Manual JCLA Agreement City of Cupertino Exhibit A Page 2 of4 February 29 , 2016 (b) Design Recommendations: Prepare illustrative exhibits for the significant existing conditions that exist along the project limit of work with recommendations for landscape improvements. Exhibits will be in plan and section, color rendered, and cross-referenced to the key map. (c) Plant List Matrix: Prepare a matrix for recommendations for varieties of trees, shrubs, grasses and ground cover. Matrix will include botanical and common name, nursery container size and size of plants at maturity. (d) Product Specifications: Recommendations for new City landscape product standards including import topsoil, amendments and fertilizers, mulch, header board, gravel, cobble, erosion control, irrigation, plant staking and other products. (e) Design details: Provide design details for planting, irrigation, and other design improvements in (b) above. (f) Estimate of Probable Construction Costs: Prepare "area takeoffs" and construction cost estimates in a variety of formats, including, at a minimum, average cost per square foot, cost per median, and cost based on the level and complexity of the landscaping . (g) Report Appendices: Provide report attachments for arborist report, horticultural soils analysis, and other pertinent information relative to (b) above . 2.30 The CITY shall review the 65% draft manual and provide written comments within (5) business days of receipt. The CONSULTANT shall incorporate CITY comments into a 95 % draft document. TASK 2.0 DEVLIVERABLES: 2.10 Meeting agenda and summary (electronic .pdf) 2.20 65 % draft De Anza Median Landscape Design Manual (one hard copy and electronic pdf files) End of Task 2.0 TASK3.0 95 % De Anza Median Landscape Design Manual 3.10 The CONSULTANT shall incorporate CITY direction from Task 2.30 into the 95 % draft De Anza Median Landscape Desig n Manual and submit it to the CITY for review. 3.20 The CITY shall review the 95 % draft manual and provide written comments within (5) business days of receipt. The CONSULTANT shall incorporate CITY comments into a 100 % final document. TASK 3.0 DEVLIVERABLES: De Anza Median Landscape De sign Manua l JCLA Agreement C ity of Cupertin o Exh ibit A Page 3 of4 February 29 , 2016 3.10 95% draft De Anza Median Landscape Design Manual (o n e hard copy and electronic pdf fil es) End of Task 3.0 Task 4.0 100% De Anza Median Landscape Design Manual 4.10 The CONSULTANT s hall incorpora te CITY direc tion from Task 3.20 into the 100 % final De Anza Median Landscape Design Manual. Task 4.0 Deliverables: 4.10 100 % final De Anza Median Landscape Design Manual (one hard copy and electronic pdf files .) De Anza Med ia n Landscape Design Manual JCLA Agreement C ity of Cupertino End of Task 4.0 END OF EXHIBIT A Exhibit A Page 4 of 4 February 29, 20 I 6 EXHIBITB PERFORMANCE SCHEDULE All work under this Consultant Agreement shall be completed by July 29, 2016. The task deliverables identified in EXHIBIT A, shall be received by the CITY as indicated below: PROTECT DELIVERABLES (BY TASK) Section 2.0 SCOPE OF SERVICES TASK 1.0 PREDESIGN ACTIVITY DELIVERY SCHEDULE 1 .30 Arborist Report 1.40 Project Base Map and existing conditions Fifteen (15) business days after NTP Ten (10) business days after NTP TASK 2.0 65 % DE ANZA MEDIAN LANDSCAPE DESIGN MANUAL 2.10 Meeting agenda and summary Five (5) business days before/after meeting. 2.20 65 % De Anza Median Landscape Design Manual Fifteen (15) business days after 2.10. TASK 3.0 95 % DE ANZA MEDIAN LANDSCAPE DESIGN MANUAL 3.10 95 % De Anza Median Landscape Design Manual Fifteen (15) business days after 2.30 . TASK 4 .0 100 % DE ANZA MEDIAN LANDSCAPE DESIGN MANUAL 4.10 100 % D e Anza Median Landscape Design Manual Ten (10) business days after 3.20. De Anza Median Landscape Design Manua l J CLA Agreement C ity of C up ertino END OF EXHIBIT B Exhibit B Page I of l February 29, 2016 1) Base Compensation EXHIBIT C COMPENSATION The base compensation for this Consultant agreement shall not exceed twenty four thousand six hundred DOLLARS ($24,600 .00). Any work performed in Section 2.0, Scope of Services, which exceeds the base compensation amount shall be at no cost to the CITY. 2) Fee Budget Schedule The Fee Budget Schedule for this AGREEMENT shall be as follows: Section 2.0 Task Description Task Task #1: Task #2: Task #3 : Task #4: Predesign Activities 65 % De Anza Median Landscape Design Manual 95 % De Anza Median Landscape Design Manual 100 % De Anza Median Landscape Design Manual TOTAL Task Compensation $9,890.00 $8,850.00 $3,410.00 $2,450.00 $24,600.00 The CONSULT ANT shall not exceed the specified budget amounts for any Task without prior written authorization from the CITY. The CITY may approve budget transfer amounts between Tasks listed above provided the base AGRE EMENT compensation amount in (1) above is not exceeded. 3). Payment Schedule The Payment Schedule for this AGREEMENT shall be as follows: TASK MILESTONE Task #1 Predesign Activities: a. Bas e maps and existing conditions b . Arborist report Task #2 Kickoff meeting agenda and summary City approved 65 % De Anza Median Landscape Design Manual Task #3 City approved 95 % De Anza Median Landscape Design Manual Task #4 City approved 100 % De Anza Median Landscape D esign Manual De Anza Median Landscape Design Manual JCLA Agreement City of Cuperti no Exhibit C %TASK COMPENSATION 40% 60% 20% 80% 100% 100 % Page l of2 February 29 , 2016 EXHIBIT C COMPENSATION The CONSULTANT may invoice according to the budget schedule only after the CITY prov ides written approval for the Task deliverables identified in Item C. 4). SUB CONSULT ANT Services. The CONSULTANT is directly responsible for all SUBCONSULTANT payments. All SUBCONSULTANT compensation is included in the above Budget and shall be invoiced by the CONSULTANT as part of the Section 2, Scope of Services, Base Compensation. 5). Reimbursable Expenses: There are no reimbursable expenses in this Agreement. 6). Additional Services: The CITY may request, in writing, additional CONSULTANT services not identified in Item B, Tasks 1- 3. The CONSULTANT shall provide a written fee proposal and obtain the CITY's written authorization prior to performing any additional services. This agreement provides a sum of four hundred DOLLARS ($400 .00) for Additional Services not identified in ATTACHEMENT A, SCOPE OF SERVICES. The CONSULTANT shall not perform any additional services that exceed that amount. Each Additional Services proposal shall be separately negotiated, in advance, and paid either on a lump sum or time and material bas is as authorized by the CITY . The CONSULTANT shall use the billing rates below throughout the term of this agreement for time and material proposals. CONSULTANT HOURLY RATES FOR ADDITONAL SERVICES Principal $150/hour Landscape Architect 1 $120/hour Project Assistant 1 $95/hour Project Assistant 2 $85/hour AutoCAD Design $95/hour The CONSULTANT shall invoice for authorized Additional Services performed the previous month according to the compensation schedule identified in the agreement addendum. 7). Maximum Compensation The maximum compensation for the entire Consultant agreement is twenty five thousand DOLLARS ($25,000.). Any hours worked for which payment would result in a total exceeding the maximum amount of compensation shall be at no cost to the CITY . De Anza Median Landscape Design Manual J CLA Agreement City of C upertino END OF EXHIBIT C Exh ibit C Page2of2 February 29 , 20 16 Client#: 1783 JOHN CAHAL ACORD,. CERTIFICATE OF LIABILITY INSURANCE I DATE (MM /D D/Y YYY) 3/04/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT : If the certificate holder is an ADDITIONAL INSURED , the policy(ies) must be endorsed. If SUBROGATION IS WAIVED , subject to the te rms and conditions of the policy, certain policies may require an e ndorseme nt. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODU CER CO NTACT NAME : Dealey , Renton & Associates F1J8NJo Extl : 510 465-3090 / r..e~. No): 510 452-2193 P. 0 . Box 12675 Attn : IFW E-MA IL A DDRE SS: Oakland, CA 94604-2675 INSU RER(S) A FFOR DI NG COV ERAGE NAIC# 510 465-3090 INSU RER A : Sentinel Insurance Co. LTD 11000 INSU RE D INSU RER B : XL Specialty Insurance Co. 37885 John Cahalan, Landscape Architect IN SURER C: 15559 Union Ave ., #206 Los Gatos , CA 95032 IN SURER D : IN SURER E : IN SURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER : TH IS IS TO CERTIFY THA T TH E PO LI CIES OF INS U R A N C E LISTED BEL O W H AVE BEE N IS S UED TO TH E IN S U RED N AM ED A BOV E FOR THE POLI CY P ERIOD IND ICAT ED . NOTWITH ST AND ING A N Y REQ UI REMEN T , T ERM OR COND IT IO N OF ANY CONTRACT OR OTHER DOCUMENT W ITH RESP E CT T O W HI C H TH IS CERTIF ICAT E M A Y B E ISS UED OR MAY PERTA IN , TH E INSURA N C E A FFORDED BY THE POLIC IES D ESCR IBED HEREIN IS S U BJECT TO ALL THE TERMS , E XC LUS IO N S AND COND ITIONS OF S UCH P O LI C IE S . LI M ITS SHOW N MAY H AVE B E EN R E DUCE D BY P A ID C L A IMS . INS R TY PE OF INSURAN CE AD DL SU BR POLI CY EFF POLIC Y EXP LIMIT S LTR IN SR WVD POLI CY NUMBE R /MM /DDIYYYYl IMM/DD /YYYYl A X COMMERC IAL GEN ERAL LI AB ILI TY 57SBWLZ2249 10/15/2015 10/15/2016 EACH OCCURRENCE s1000000 -~ CLA IMS -MA DE ~ OCC UR ~~~{A[f,H9E~~~J~;;,ncel s 1 000 000 .~ Contractual MED EXP (Any one person ) s10 000 _ Liabilit:t Included PERSONAL & ADV INJ URY s 1,000 ,000 GE N'L AGGREGATE LI MIT APPLI ES PER: GE NERAL AGGREGATE s2 ,000 ,000 Fl rxiPRO-DLOC s2,000,000 POLI CY_ JECT PRODUCTS -COMP /OP AG G OTHE R: s A AU TO MO BILE LIA BI LI TY 57SBWLZ2249 10/15/2015 10/15/201 6. (E~~~~~~~tflNGLE LIM IT s1,000 ,000 - ANY AUT O 130DI L Y INJ URY (Per pe rson) s --ALL OWNED SCHEDULED 130DI L Y INJURY (Per accident) S -AU TOS -AU TOS X X NON -OWNED PROPERTY DAMAGE s HIRED AUTOS AUTOS f Per accident\ - s UMB RELLA LIAB H OCC UR EACH OCC URRENCE s >-- EXCESS LIAB CLA IMS-MAD E AGGREGATE s OED I I RETEN TI ON $ s WORK ERS COMPENSATION l ~~f TlJTF I l ~J H- AND EMPLOYERS ' LIABILITY Y /N ANY PR OPR IETORIP AR TNE R/EXEC UTI VE D E.L. EAC H ACC ID ENT s OFFI CER/M EMBE R EXCLUDED ? N /A (Mand ato ry in NH ) E.L. DISEASE - EA EMPLOYE E S If yes, desc ri be und er DE SCR IPTI ON OF OPE RATI ONS below E.L. DI SEASE -POLICY LI MIT s B Professional DPS9725633 10/15/2015 10/15/201 I $1,000,000 pee cl aim Liability $2,000 ,000 annl aggr. DESCRIP TI ON OF OPERATIONS / LOCATION S/ VEHI CLES (ACORD 101 , Additiona l Re m ark s Sched ule, may be attac h ed if mo re s pace is req ui red) General Liability policy excludes claims arising out of the performance of professional services. RE : De Anza Median Landscape Design Manual GENERAL LIABILITY ADDITIONAL INSURED : City of Cupertino, its city Council, boards and commissions, officers , employees and volunteers (See Attached Descriptions) CERTIFICATE HOLDER City of Cupertino Attn : John Raaymakers 10300 Torre Avenue Cupertino, CA 95014 CANCELLATION SHOULD ANY OF THE ABOVE DES CRIBED POLICIES BE CANCELLED BE FO R E THE EXPIRATION DATE T HEREOF, NOT ICE WILL BE D E LIVE RED IN ACCORDANCE WITH THE POLI C Y PROVISIONS . AUTHO RIZED RE PRESEN TATIVE © 1988-2014 ACORD CORPORATION. All rights rese rve d . ACORD 25 (2014/01) 1 of 2 Th e ACORD name and logo are r egistered ma rks of ACORD #S1635024/M1498600 NMB 30day Notice of Cancellation SAGITTA 25 .3 (2014/01) 2 of 2 #S1635024/M1498600 DESCRIPTIONS (Continued from Page 1) Insured: John Cahalan, Land scape Architect Insurer: Sentine l Insu rance Co. LTD Policy Number: 57SBWLZ2249 Policy Effective Date : 10115120 15 Additional Insured : Cit y of Cupertino, it s city Council, boards and commissions, officers , emp loyees and vo luntee rs EXCERPTS FROM: Hartford Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM C. WHO IS AN INSURED 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a . through f . below are additional insureds when you have agreed, in a written contract, written agreement or because of a permit issued by a state or political subdivision, that such person or organization be added as an additional insured on your policy, provided the injury or damage occurs subsequent to the execution of the contract or agreement, or the issuance of the permit. A person or organization is an additional insured under this provision only for that period of time required by the contract, agreement or permit. f . Any Other Party (1) Any other person or organization who is not an insured under Paragraphs a . through e. above , but only with respect to liability for "bodily injury, "property damage" or "personal and advertising injury" caused , in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (a) In the performance of your ongoing operations; (b) In connection with your premises owned by or rented to you; or (c) In connection with "your work " and includ ed within the "products-compl ete d operations hazard , but only if (i) The written contract or written agreement requires you to provide such coverage to such additional insured ; and (ii) This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard. (2) With respect to the insurance afforded to these additional insureds , this insurance does not apply to : "Bodily injury, "p roperty damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services , including : inspection, or engineering E.5. Separation of Insureds Excep t with respect to the Limits of Insurance, and any rights or duties sp eci fi ca lly assigned in this policy to the first Named Insured , this insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom a claim is made or "suit" is brought. E.7.b.(7).(b) Primary And Non-Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured 's own insurance , this insuran ce is primary and we will not seek contribution from that other insurance . E.8.b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments , we have made under this Coverage Part , we also waive that right , provided the insured waived their rights of recove ry against such person or organization in a co ntract, agreement or permit that was executed prior to the injury or damage.