16-119 Hexagon Transportation Consultants, Inc., Transportation Planning and Traffic Engineering ServicesAGREEMENT BETWEEN THE CITY OF CUPERTINO AND HEXAGON
TRANSPORT A TI ON CONSULT ANTS, INC FOR TRANSPORTATION
PLANNING AND TRAFFIC ENGINEERING SERVICES
THIS AGREEMENT, is entered into this 1st day of July, 2016 , by and between the
CITY OF CUPERTINO , a California municipal corporation ("City"), and Hexagon
Transportation Consultants , Inc , a California Corporation whose address is 4 N01ih Second
Street, Suite 400 , San Jose, California 95113 (hereinafter referred to as "Consultant")
(collectively referred to as the "Parties ").
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.
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 transpo1iation
planning and traffic engineering services for various city projects upon the te1ms and
conditions herein.
NOW, THEREFORE, the Parties mutually agree as follows :
1. TERM
The te1m of this Agreement shall commence on July 1, 2016 , and shall terminate
on June 30 , 2017 , unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall perform each and every service set f01ih in Exhibit "A" pursuant
to the schedule of performance set fo1ih in Exhibit "A ," attached hereto and incorporated
herein by this reference.
3. COMPENSATION TO CONSULTANT
Consultant shall be compensated for services performed pursuant to this Agreement
in a total amount not to exceed TEN THOUSAND dollars ($10 ,000.00) based on the rates
and tenns set forth in Exhibit "A," which is attached hereto and incorporated herein by this
reference.
4 . TIME IS OF THE ESSENCE
Consultant and City agree that time is of the essence regarding the performance of
this Agreement.
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Consu l tan t cont ract-Hexagon Transport at i on Consul t ant s, Inc, FY 1 6-17
5. STANDARD OF CARE
Consultant agrees to perform all services required by this Agreement 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 emplo yed by the City nor have any contractual relationship with Cit y.
6. INDEPENDENT PARTIES
City and Consultant intend that the relationship between them created by this
Agreement is that of 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 , unemplo yment insurance, workers' compensation plans , vacation and sick leave ar e
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.
Pa yments of the above items , if required , are the responsibility of Consultant.
7. IMMIGRATION REFORM AND CONTROL ACT (!RCA)
Consultant assuq1es any and all responsibility for verifying the identit y and
employment authorization of all of his /her employees performing work hereunder,
pursuant to all applicable IRCA or other federal , or state rules and regulation s. Con sult ant
shall indemnify and hold City harmless from and against any loss, damage, liabilit y, cost s
or expenses arising from any noncompliance of this provision by Consultant.
8. NON-DISCRIMINATION
Consistent with City's polic y prohibiting harassment and discrimination ,
Consultant agrees that it shall not harass or discriminate against a job applicant , a Cit y
employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis
ofrace, religious creed , color, national origin , ancestry , handicap , disability , marital status ,
pregnancy , sex , age , sexual orientation , or any other protected class. Consultant agrees that
any and all violations of this provision shall constitute a material breach of this Agreement.
9 . HOLD HARMLESS
IZl Standard Indemnification:
Consultant shall, to the fullest extent allowed by law and without limitation of the
provisions of this Agreement related to insurance, 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 o r death of any person or damage to property or other liability of an y nature ,
whether ph ysical , emotional , consequential or otherwise , arising out , pertaining to , or
related to the negligent 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 , expe11 fe es and all
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Consultant contract-Hexagon Transportation Consultants, Inc, FY 16-17
other costs and fees of litigation. The acceptance of the Services by City shall not operate
as a waiver of the 1ight of indemnification . The provisions of this Section survive the
completion of the Services or termination of this Contract.
I 0. INSURANCE:
A . General Requirements . On or before the commencement of the term of this
Agreement, Consultant shall furnish City with certificates showing the type , amount , class
of operations covered , effective dates and dates of expiration of insurance coverage in
compliance with the requirements listed in Exhibit "D ". Such certificates , which do not
limit Consultant's indemnification , shall also contain substantially the following statement:
"Should any of the above insurance covered by this certificate be canceled or coverage
reduced before the expiration date thereof, the insurer affording coverage shall provide
thi1iy (30) days' advance w1itten notice to the City of Cupertino by ce1iified mail , Attention:
City Manager." Consultant shall maintain in force at all times during the perfornrnnce of
this Agreement all appropriate coverage of insurance required by this Agreement with an
insurance company that is acceptable to City and licensed to do insurance business in the
State of California. Endorsements naming the City as additional insured shall be submitted
with the insurance certificates.
B . Subrogation Waiver. Consultant agrees that in the event of loss due to any
of the perils for which he/she has agreed to provide comprehensive general and automotive
liability insurance, Consultant shall look solely to his/her insurance for recovery.
Consultant hereby grants to City, on behalf of any insurer providing comprehensive general
and automotive liability insurance to either Consultant or City with respect to the services
of Consultant herein , a waiver of any right to subrogation which any such insurer of said
Consultant may acquire against City by virtue of the payment of any loss under such
msurance .
C. Failure to secure or maintain insurance. If Consultant at any time during the
tenn 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 pem1itted by law and computed from the date written notice is received that
the premiums have not been paid.
D. Additional Insured . City, its City Council, boards and commissions ,
officers , employees and volunteers shall be named as an additional insured under all
insurance coverages , except any professional liability insurance, required by this
Agreement. The naming of an additional insured shall not affect any recovery to which
such additional insured would be entitled under this policy if not named as such additional
insured. An additional insured named herein shall not be held liable for any premium,
deductible portion of any loss , or expense of any nature on this policy or any extension
thereof. Any other insurance held by an additional insured shall not be required to
contribute anything toward any loss or expense covered by the insurance provided by this
policy.
E . Sufficiency of Insurance. The insurance limits required by City are not
represented as being sufficient to protect Consultant. Consultant is advised to confer with
Consultant's insurance broker to determine adequate coverage for Consultant.
F. Maximum Coverage and Limits . It shall be a requirement under this
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Consultant contract-Hexagon Transportation Consultants, Inc, FY 16-17
Agreement that any available insurance proceeds broader than or in excess of the specified
minimum Insurance coverage requirements and /or limits shall be available to the additional
insured City. Furthennore, the requirements for coverage and limits shall be the minimum
coverage and limits specified in this Agreement, or the broader coverage and maximum
limits of coverage of any insurance policy or proceeds available to the named insured,
whichever is greater.
11. CONFLICT OF INTEREST
Consultant watTants that it presently has no interest, and will not acquire any
interest, direct or indirect, financial or otherwise, that would conflict in any way with the
performance of this Agreement, and that it will not employ any person having such an
interest. Consultant agrees to advise City immediately if any conflict arises and
understands that it may be required to fill out a conflict of interest form if the services
provided under this Agreement require Consultant to make certain governmental decisions
or serve in a staff capacity as defined in Title 2 , Division 6 , Section 18700 of the California
Code of Regulations.
12 . PROHIBITION AGAINST 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
w1itten 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 paiiner or joint
venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or
syndicate or cotenancy, which shall result in changing the control of Consultant, shall be
construed as an assignment of this Agreement. Control means fifty percent (50%) or more
of the voting power of the corporation.
13. SUBCONTRACTOR APPROVAL
Unless prior written consent from City is obtained, only those people and
subcontractors whose names and resumes are attached to this Agreement shall be used in
the performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required to
carry general, automobile and professional liability insurance in reasonable conformity to
the insurance carried by Consultant. In addition , any work or services subcontracted
hereunder shall be subject to each provision of this Agreement.
Consultant agrees to include with all subcontractors in their subcontract the same
requirements and provisions of this Agreement including the indemnity and insurance
requirements to the extent they apply to the scope of the subcontractor 's work.
Subcontractors hired by Consultant agree to be bound to Consultant and City in the same
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Consultant contract-Hexagon Transportation Consul tan ts, Inc, FY 16-1 7
manner and to the same extent as Consultant is bound to City under this Agreement.
Subcontractor further agrees to include these same provisions with any sub-subcontractor.
A copy of the Owner Contract Document Indemnity and Insurance provisions will be
furnished to the subcontractor upon request. Consultant shall require all subcontractors to
provide a valid ce1iificate of insurance and the required endorsements included in the
agreement prior to commencement of any work and will provide proof of compliance to
City.
14. PERMITS AND LICENSES
Consultant, at his/her sole expense, shall obtain and maintain during the term of
this Agreement, all appropriate permits , certificates and licenses including, but not limited
to , a City Business License, that may be required in connection with the performance of
serv ices hereunder.
15. REPORTS
A. Each and e v ery rep01i , draft, work product, map , record and other
document, hereinafter collectively refen-ed to as "Report", reproduced , prepared or caused
to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the
exclusive prope1iy of City. Consultant shall not copyright an y Repo1i required by this
Agreement a nd shall ex ecute appropriate documents to assign to City the copyright to
R e ports created pursuant to this Agreement. Any R e po1i , information and data acquired
or required by this Agreement shall become the property of City, and all publication rights
are res erved to City. Consultant may retain a copy of any repoti furnished to the City
pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in execution or
implementation of: (1) The original Project for which Consultant was hired ; (2)
Completion of the original Project by others ; (3) Subsequent additions to the original
project; and/or (4) Other City projects as City deems appropriate.
C. Consultant shall, at such time and in such form as City may require, furnish
repo1is concerning the status of services required under this Agreement.
D. All Reports required to be provided by this Agreement shall be printed on
recycled paper. All Reports shall be copied on both sides of the paper except for one
original, which shall be single sided .
E. No Report, information or other data given to or prepared or assembled by
Consultant pursuant to this Agreement shall be made available to any individual or
organization by Consultant without prior approval by City.
16. RECORDS
Consultant shall maintain complete and accurate records with respect to sales, costs ,
e xpenses, receipts and other such infonnation required by City that relate to the
performance of services under this Agreement, in sufficient detail to permit an evaluation
of services . All such records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily accessible. Consultant
shall provide free access to such books and records to the representatives of City or its
designees at all proper times, and gives City the right to examine and audit same, and to
make transcripts therefrom as necessary, and to allow inspection of all work, data,
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Consultant contract-Hexagon Transportation Consul tan ts, Inc, FY 16-1 7
documents, proceedings and activities related to this Agreement. Such record s, 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 Consultant receives final payment
from City for all services required under this agreement.
If supplemental examination or audit of the records is necessary due to concerns
raised by City's preliminary examination or audit of records , and the City's supplemental
examination or audit of the records discloses a failure to adhere to appropriate internal
financial controls , or other breach of contract or failure to act in good faith , then Consultant
shall reimburse City for all reasonable costs and expenses associated with the supplemental
examination or audit.
17. NONAPPROPRIATION
This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code
and Agreement will tern1inate without any penalty (a) at the end of any fiscal year in the
event that funds are not appropriated for the following fiscal year, or (b) at any time within
a fiscal year in the event that funds are only appropriated for a pmiion of the fiscal year
and funds for this Agreement are no longer available. This Section shall take precedence
in the event of a conflict with any other covenant, tern1 , condition, or provision of this
Agreement.
18 . ENVIRONMENTALLY PREFERABLE PURCHASING
Consultant shall comply with the City's Environmentally Preferable Procurement
Policy whenever practicable in completing any work under this agreement, including but
not limited to:
• Using paper products made with recycled content and recycled/remanufactured
toner and ink jet cart1idges;
• Printing with soy or low volatile organic compounds (VOC) inks ;
• Using energy-star compliant equipment;
• Using cleansers and working with janitorial contractors to meet Green Seal 's
Industrial and Institutional Cleaners Standard; and
• Ordering supplies electronically and practicing other internal waste reduction
and reuse protocols.
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 shall be addressed as follows:
TO CITY:
City of Cupe1iino
10300 Torre Ave.
Cupertino CA 95014
Attention: Aarti Shri v astava , Assistant City Manager
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consultant contract-Hexagon Transportation Consultants, Inc, FY 16-17
TO CONSULTANT:
Hexagon Transportation Consultants , Inc
4 North Second Street, Suite 400
San Jose , CA 95113
Gary Black , President
20. TERMINATION
In the event Consultant fails or refuses to perform any of the provision s hereof at
the time and in the manner required hereunder , Consultant shall be deemed in default in
the performance of this Agreement. If Consultant fails to cure the default within the time
specified and according to the requirements set forth in City's written notice of defa ult , and
in addition to any other remedy available to the City by law , the City Manager may
terminate the Agreement by giving Consultant w1:itten notice thereof, which shall be
effective immediately . The City Manager shall also have the option, at its sole discretion
and without cause, of terminating this Agreement by giving seven (7) calendar da ys ' prior
written notice to Consultant as provided herein. Upon receipt of any notice of termination,
Consultant shall immediately discontinue performance.
City shall pay Consultant for services satisfactorily performed up to th e effective
date of termination. If the termination is for cause, City ma y deduct from such pa yment the
amount of actual damage , if any, sustained by City due to Consultant 's failure to perform
its material obligations under this Agreement. Upon termination , Consultant shall
immediatel y deliver to the City any and all copies of st udies , sketches , drawin gs ,
computations , and other material or products , whether or not completed , prepared by
Consultant or given to Consultant, in connection with this Agreement. Such materials shall
become the property of City.
21. COMPLIANCE
Consultant shall comply with all state or federal laws and all ordinances , rules,
policies 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 Superior Court of the County of Santa Clara, State of
California.
23. ADVERTISEMENT
Consultant shall not post , exhibit, display or allow to be posted , ex hibited,
displa ye d any signs, advertising , show bills , lithographs , poster s 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.
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Consul t ant contract-Hexagon Transpor t a t ion Con sultants, Inc, FY 16-17
24. WAIVER
A waiver by City of any breach of any tenn , 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 , 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. AUTHORITY
The individual(s) executing this Agreement represent and warrant that they have
the legal capacity and authority to do so on behalf of their respective legal entities.
27. INSERTED PROVISIONS
Each prov ision 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 inse1ied , the Agreement shall be amended to make such insertion
on application by either pmiy.
28. CAPTIONS AND TERMS
The captions in this Agreement are for convenience only, are not a pmi of the
Agreement and in no way affect , limit or amplify the terms or provisions of this Agreement.
All unchecked boxes do not apply to this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed .
ortation Consultants, Inc
APPROVED AS TO FORM
~ City Attorney
CITY OF CUPERTINO
A Municipa.l~oration
By ~r;/(frt!ttJ~
Titfe /Srr· e/rf /IC,?
Date o;p/t;r;/16 , .
D O ve r $175 ,000-Counc il Approv al Required
D O ver $45 ,000-Depaitment Head Appro val Required
l2l Up to $45 ,000 -Des igna ted Supervisor Approva l Required
RECOMMENDED FOR APPROVAL
~C ommunity ~evolopmenl
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Consultant contract-Hexagon Transportation Consul tan ts, Inc, FY 16-1 7
Exhibits: (Ch ec k box for ex hibits that apply to thi s contract and attach)
~ Exhibit "A"-Scope of Services
D Exhibit "B "-Schedule of Perfomrnnce
D Exhibit "C"-Compensation
~ Exhibit "D " -Insurance Requirements and Proof of Insurance
D Exhibit "E" -Mandated Reporting Acknowledgement
D Exhibit "F"-Background/Fingerprint/TB Declaration
D Exhibit "G "-Nondiscrimination-State/Federal/HUD funded project
D Exhibit "H " -Request for City Manager to Waive Infonnal Bidding Requirements
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
PO #2017-)-?:> ~
100-71-701 700-702 $10,000.00
Total: $10,000.00
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~ Exhibit A ~exagoo T rnosportatioo (oosultaots.1 nc . ............
Firm Description -r"'\ ~ -0-• • ~ ~ cm ' o~ X:
Hexagon Transportation Consultants, Inc. was founded in 1998 in San Jose, California with the goal of
providing top-quality, professional transportation consulting services to private and public entities.
Hexagon provides services in all major aspects of transportation planning and traffic engineering. We
have built our firm around three fundamental principles. First, we deliver the highest quality work with
findings that are double checked and presented clearly and concisely . Second , we deliver work products
when promised . Last , we are accessible and responsive .
Hexagon's staff members have prepared thousands of studies, both large and small, over their
professional careers . Hexagon's public clients include city , county and state agencies and regional
planning organizations . Hexagon has a wide range of private clients including technology companies ,
developers, architects, civil engineers, and environmental firms .
Hexagon has California offices in San Jose , Pleasanton, and Gilroy as well as an Arizona office in Phoenix
offering a wide range of services including :
• Countywide and Citywide Circulation • Traffic Impact Fee Studies
• Corridor Studies • Traffic Safety Studies
• Major Investment Studies • Site Review Studies
• Specific Plans • Neighborhood Traffic Control Studies
• Area Plans • Campus Plans
• Site Master Plans • Ballpark and Stadium Studies
• Traffic Impact Analyses • Site Feasibility Studies
• Traffic Simulation • Signal Designs
• Travel Demand Forecasting Models • Parking Studies
• Pavement Delineation and Signing Plans • Traffic Control/Construction Staging Plans
• Greenhouse Gas Traffic Emissions Studies • Roundabout Studies , Analysis and Design
Hexagon has 26 employees within its four offices . Hexagon's professional staff is experienced in all
technical aspects of transportation consulting and highly proficient in state-of-the-art computer
software including all major modeling packages, traffic simulation software, intersection level of service
programs, advanced traffic operations programs, CADD programs and many specialized programs that
process and analyze traffic data. Hexagon 's clients can be sure they are being provided high-quality,
leading-edge technical services.
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...__.... ~exagon T rnnsportation (onsultants.1 nc .
Hexagon 2016 Billing Rates
Professional Classification Rate ~er Hour
President $265
Principal $220
Senior Associate II $205
Senior Associate I $190
Associate II $170
Associate I $155
Planner/Engineer II $140
Planner/Engineer I $125
Admin/Graphics $105
Senior CAD Tech $95
Technician $75
Direct expenses are billed at actual costs,, with the exception of mileage, which is reimbursed at the
current rate per mile set by the IRS.
Billing rates shown are effective January 1, 2016 and subject to change January 1, 2017 .
Exhibit D
Insurance Requirements and Proof of Insurance
Proof of insurance coverage described below is attached to this Exhibit , with City named
as additional insured.
Consultant shall maintain the following minimum insurance coverage :
A. COVERAGE:
(I) 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 :
(4)
Comprehensive 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 occurrence
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.
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