17-039 Kimley-Horn and Associates, Design Professional Services for the Fiber Network Expansion to the Service Center ProjectAGREEMENT BETWEEN THE CITY OF CUPERTINO AND KIMLEY-HORN AND
ASSOCIATES, INC. FOR DESIGN PROFESSIONAL SERVICES FOR THE FIBER NETWORK
EXPANSION TO THE SERVICE CENTER PROJECT
This Agreement for Design Professional Services ("Agreement"), dated M(l...,VU\ z.f ,
20 11--, is entered into by and between City of Cupertino , a municipal corporation ("City "), and
Kimley-Horn and Associates , Inc., a corporation ("Design Professional ").
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. Design Professional represents that it is specially trained, experienced and
competent to perform the civil engineering design services ("Services ") required for the City's
Fiber Network Expansion to the Service Center Project ("Project").
C . Design Professional represents that it is duly licensed in good standing by the
State of California to perform such Services and has submitted a proposal, dated March 8 , 2017
("Proposal") in response to the City's request for proposals .
D. City is entering into this Agreement in reliance upon Design Professional 's
representations, set forth above, to provide the Services in accordance with the terms and
conditions of this Agreement.
TERMS AND CONDITIONS
1. TERM:
The term of this Agreement ('Term") will begin on the date this Agreement is fully executed by
both parties and, unless terminated earlier as set forth below or extended by a written
amendment to this Agreement, will expire upon on December 31, 2017 .
2. SERVICES TO BE PERFORMED:
A. Basic Services. Design Professional will provide Basic Services under this
Agreement as further described the Scope of Services set forth in Exhibit A, Scope of
Services, attached hereto and incorporated herein, and as further specified in the Proposal ,
except to the extent that any provision in the Proposal conflicts or is inconsistent with this
Agreement and the Exhibits hereto, or as otherwise expressly rejected in writing by the City.
Basic Services may be divided into separate sequential tasks ('Tasks") as further specified in
Exhibit A.
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B. Additional Services . City may request , at any time during the Term of this
Agreement , that Design Professional provide additional services related to the Project, which
are not already encompassed , expressly or implicitly , in this Agreement, Exhibit A or the
Proposal ("Additional Services "). Any Additional Services must be authorized in writing by City .
Design Professional will not be entitled to compensation for Additional Services provided without
or prior to the City's written authorization . Duly authorized Additional Services are subject to all
of the provisions that apply to Basic Services under this Agreement, except and only to the
extent otherwise specified. All references to "Services" include Basic Services and any
autho rized Additional Services .
3. SCHEDULE :
All Services must be provided within the times specified in Exhibit B , Schedule of
Performance , attached hereto and incorporated herein. Design Professional must promptly
notify the City of any actual or potential delay in providing the Services as scheduled to afford
the City adequate opportunity to address or mitigate the delay if possible . Design Professional
must begin each separate Task included in Basic Services upon receipt from City of a notice to
proceed ("Notice to Proceed ") for that Task , and must complete the Task within the time
specified in Exhibit B.
4. COMPENSATION:
A. Maximum Compensation. The cumulative total payment to Design
Professional for Basic Services , Additional Services and expenses under this Agreement may
not exceed $ 28 ,500 . Design Professional is not entitled to any payment for Services or
expenses in excess of this max imum limit.
B. Basic Services. City will pay Design Professional $23 ,750 ("Lump Sum Price "),
for the complete and satisfactory performance of the Basic Services in accordance with this
Section 4 and as may be further specified in Exhibit C, Compensation , attached hereto and
incorporated herein . The Lump Sum Price is completely inclusive of all time and expenses to
provide the Basic Services , including , but not limited to , subconsultant costs , materials ,
supplies , equipment , travel , taxes , overhead and profit. If, for any reason , Design Professional
does not fully complete the Basic Services it will only be entitled to a percentage of the Lump
Sum Price that is proportionate to the percentage of Basic Services that we re completed to the
C ity 's reasonable satisfaction.
C. Additional Services. Additional Services that have been duly authorized by City
as specified above , and provided to the City's reasonable satisfaction , may be compensated on
a lump sum basis or based on time and expenses , subject to a not-to-exceed limit , using the
Hourly Rates Schedule and Reimbu rsable Expenses Schedule included in Exhibit C,
Compensation. An allowance of $4 ,750 has been budgeted for Additional Services under th is
Agreement. The City has the discretion , but not the obligation , to authorize Additional Services
up to this not-to-exceed amount, including the discretion to elect not to authorize any Additional
Services . For Additional Services provided on an hourly basis , Design Professional will be
entitled to compensation for costs other than direct labor, normal business expenses and
overhead , based on the documented actual cost only , with no markup or surcharge
("Reimbursable Expenses "). Design Professional will not be entitled to reimbursement for in
house copying, printing , faxes , telephone charges , employee overtime , or travel to City 's offices
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or to the Project site , unless or to the extent such expenses are specifically authorized in Exhibit
C .
D. Invoices and Payments. City will pay Design Professional for Services
provided to the City's reasonable satisfaction , within 30 days following receipt of a properly
submitted invoice for Services provided during the preceding calendar month . The invoice must
separately itemize and provide subtotals for Basic Services and Additional Services , and must
state the percentage of completion for each Task as further specified in Exhibit C . City will notify
Design Professional in writing if it disagrees with the stated percentage of completion , and if the
disagreement is unresolved , City will pay Design Professional based on the portion of Services
that City agrees have been satisfactorily completed at that point.
1. Time and Expenses: For Additional Services provided on an hourly
basis , each invoice must also include , for each day Services were provided :
a . The name and title of each individual or subconsultant providing
Services;
b. A succinct summary of the Services performed by each individual
or subconsultant ;
c. The time spent by each indiv idual or subconsultant providing
those Serv ices , in 30 minute increments ;
d . The applicable hourly billing rate or subconsultant charge and
payment due ;
e . An itemized list with amounts and explanation for all permitted
reimbursable expenses.
2 . Rates and Receipts: All hourly rates and reimbursable expenses must
conform to the City-approved rates set forth in Exhibit C , which will be in
effect for the entire Term of the Agreement. Each invoice must attach
legible, dated receipts for all Reimbursable Expenses .
5. TIME IS OF THE ESSENCE:
Time is of the essence for the performance of all Services required under this Agreement and
for all of Design Professional 's duties under this Agreement. Design Professional must at all
times have sufficient, qualified staff or subconsultants assigned to timely provide all Services
under this Agreement. Design Professional must take appropriate measures to avoid delay of
Project completion, including , but not limited to, prompt submission of deliverables and any
required revisions , and prompt responses to City or contractor requests , including , but not
limited to , requests for information , substitution requests and change order requests . Failure to
comply with the schedule requirements or failure to timely submit deliverables or provided
responses as specified under this Agreement may be deemed a material breach of this
Agreement.
6. STANDARD OF CARE:
All Services must be provided in a manner that meets or exceeds the standard of care
applicable to the same type of design professionals performing similar work in the San
Francisco Bay Area . Services may only be performed by qualified and experienced personnel or
subconsultants who are not employed by the City and who do not have any contractual
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relationship with City , with the exception of this Agreement. All Services provided under this
Agreement , including authorized Additional Services , must be performed as specified to the
City's reasonable satisfaction.
7. ERRORS AND OMISSIONS:
Design Professional is solely responsible for all of its or its subconsultants' errors and omissions
and must promptly correct any and all such errors and omiss ions at its sole expense. Design
Professional must also take appropriate measures to avoid or mitigate any delay, liability or
costs resulting from any such errors or omissions . This provision survives expiration or
termination of this Agreement.
8. PROJECT COORDINATION:
A. City Project Manager. The City's authorized delegee, John Raaymakers , will be
the City's representative for all purposes under this Agreement ("City Project Manager") with
authority to oversee the progress and performance of Services under this Agreement. The City
reserves the right to replace or provide a substitute City Project Manager at any time , and
without prior notice to the Design Professional.
B. Design Professional Project Manager. Design Professional will assign a single
Project Manager (the "DP Project Manager"), subject to City approval , with authority to receive
and act on directions from the City and responsibility for the progress and performance of
Services under this Agreement. The designated DP Project Manager is Mr. Elbert Chang. If a
substitute or replacement DP Project Manager is required for any reason , the City must be
notified of the need as soon as possible , Design Professional 's designation of the individual
proposed to serve as the substitute or replacement will be subject to the City's prior written
approval. Design Professional is not entitled to compensation for the time required for the
substitute or replacement DP Project Manager to obtain sufficient knowledge of the required
Services to fully assume the former DP Project Manager's responsibilities.
C. Communication and Coordination. Design Professional is responsible for
coordinating the efforts of Design Professional's subconsultants or subcontractors providing
Services for this Agreement. Design Professional must also coordinate its Services to the extent
reasonably possible , with other City employees or consultants assigned to the Project. Design
Professional is responsible for ensuring that the City Project Manager is regularly updated as to
the progress or status of the Services , including, but not limited to , participation in meetings or
compliance with reporting requirements specified in Exhibit A. Design Professional has an
affirmative obligation to promptly notify the City Project Manager of any significant problems or
concerns as they arise in order to enable timely resolution or mitigation of any such problems .
Design Professional must promptly respond to the City Project Manager's inquiries regarding
the Services .
9. HOLD HARMLESS :
A . Indemnity Obligations Subject to Civil Code Section 2782.8. Design
Professional will , to the fullest extent allowed by law, with respect to all Services performed in
connection w ith the Agreement, indemnify, defend , and hold harmless the City and its officers ,
officials , agents , employees and volunteers (collectively, the "Indemnified Parties ") from and
against any and all liability , claims , actions , causes of action or demands whatsoever against
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any of them , including any injury to or death of any person or damage to property or other
liability of any nature (collectively , "Liab ility"), that arise out of, pertain to , or relate to the
negligence , recklessness , or willful misconduct of Design Professional or Design Professional's
employees , officers , officials , agents or subconsultants . Such costs and expenses shall include
reasonable attorney fees for legal counsel of City 's choice , expert fees and all other costs and
fees of litigation . Design Professional is not obligated under this Agreement to indemnify City to
the extent that any Liability is caused by the sole or active negligence or willful misconduct of
any of the Indemnified Parties . In addition to its indemnity obligations , Design Professional will
provide its immediate and active cooperation and assistance to the City , at no additional cost to
the City , in analyzing , defending , and resolving such Liab ility.
B. Claims for Other Liability. For all liabilities other than those included within
paragraph (A) above , Design Professional will , to the fullest extent allowed by law, indemnify ,
defend , and hold harmless the Indemnified Parties 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 Design Professional or Design
Professional's employees, officers , officials , agents or subconsultants. Such costs and
expenses shall include reasonable attorney fees for legal counsel of City's choice , expert fees
and all other costs and fees of litigation . Design Professional will not be obligated under this
Ag reement to indemnify City to the extent that the damage is caused by the sole or active
negligence or willful misconduct of the Indemnified Parties .
C. Claims Involving Intellectual Property. In addition to the obligations set forth in
paragraphs (A) and (B) above , Design Professional will indemnify , defend , and hold the
Indemnified Parties harmless from and against any claim in which an alleged violation of
intellectual property rights , including but not limited to copyright or patent rights , arises out of,
pertains to , or relates to Design Professional 's negligence , recklessness or willful misconduct
under this Agreement. Such costs and expenses will include reasonable attorney fees for legal
counsel of City 's choice , expert fees and all other costs and fees of litigation .
D. Survival. The requirements of this section survive expiration or termination of this
Agreement.
10. INSURANCE:
On or before the commencement of the Term of this Agreement, Design Professional must
furnish City with certificates showing the type, amount, effective dates and dates of expiration of
insurance coverage required in this section. Such certificates, which do not limit Design
Professional's indemnification obligations, must also contain substantially the following
statement: "If any of the above insurance covered by this certificate is canceled before the
expiration date thereof, the insurer affording coverage will provide 30 days advance written
notice to the City of Cupertino, Attention : City Manager." Design Professional will maintain in
force at all times during the performance of this Agreement all insurance coverage required by
this Agreement with an insurance company that is acceptable to City and authorized to do
insurance business in the State of California . Design Professional must also submit
endorsements with the certificates naming the City as additional insured in relation to the
commercial gene ral liability and commercial automobile liability policies , as further specified
below.
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A. Coverage . Design Professional must maintain the following insurance coverage :
1. Workers' Compensation:
Statutory coverage as required by the State of California . If Design
Professional is self-insured , it must provide its duly authorized Certificate
of Permission to Self-Insure .
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 pol icy 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 for owned , non-owned and
hired vehicles, 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 Design Professional in the
amount of at least $1,000,000 per claim and in the aggregate . The
professional liability insurance must include prior acts coverage , which
must remain in effect for four years following the earlier of expiration or
termination of the Term of this Agreement.
B. Subrogation Waiver . Each required policy must include an endorsement that
the insurer waives any right of subrogation it may have against the City or the City's insurers .
Design Professional agrees that in the event of loss due to any of the perils for which it has
agreed to provide insurance , Design Professional will look solely to its insurance for recovery.
C. Failure to Comply. If Design Professional at any time during the Term of this
Agreement fails to secure or maintain the required insurance, City may obtain or maintain the
insurance in the Design Professional's name or on behalf of the Design Professional and will be
compensated by the Design Professional 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 .
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D. Additional Insured Endorsements. City, its City Council, boards and
commissions , officers , officials, employees, agents and volunteers must be named as additional
insureds under all insurance coverages , except any worker's compensation and professional
liability insurance, required by this Agreement. Any additional insured will 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 will not be required to
contribute anything toward any loss or expense covered by the insurance required under this
Agreement.
E. Sufficiency of Insurance. The insurance limits required by City are not
represented as being sufficient to protect Design Professional. Design Professional is advised
to confer with Design Professional's insurance broker to determine adequate coverage for
Design Professional.
11. INDEPENDENT CONTRACTOR:
City and Design Professional intend that the relationship between them created by this
Agreement is that of owner-independent contractor. The manner and means of providing the
Services are under the control of Design Professional, 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 Design Professional's performance of the
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 Design Professional, its employees or agents. Deductions will 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 payments due to Design Professional.
Payments for the above items , if required , are the responsibility of Design Professional.
12. SUBCONSULTANTS:
Unless prior written consent from City is obtained , only those individuals and subconsultants
whose names are included in this Agreement, including the Exhibits hereto, may provide
Services under this Agreement. Design Professional must require all of its subconsultants
providing Services under this Agreement to comply with the terms and conditions of this
Agreement. Any subconsultants employed by Design Professional must be required to furnish
proof of workers' compensation insurance and must also be required to carry general ,
automobile and professional liability insurance in reasonable conformity to the insurance
required for Design Professional.
13. IMMIGRATION REFORM AND CONTROL ACT CIRCA):
Design Professional assumes any and all responsibility for verifying the identity and
employment authorization of all of its employees performing the Services, pursuant to all
applicable IRCA or other federal, or state laws, rules or regulations . Design Professional will
indemnify and hold City harmless from and against any loss, damage, liability, costs or
expenses arising from any noncompliance with this section by Design Professional.
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14. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are unacceptable employer or
employee conduct , Design Professional agrees that harassment or discrimination directed
toward a job applicant , an employee , a City employee , or any other person , by Design
Professional or Design Professional's employees or subconsultants on the basis of race ,
religious creed , color , national origin , ancestry , handicap , disability , marital status , pregnancy,
sex, age , sexual orientation , or any other protected classification will not be tolerated . Any
violation of this provision by Design Professional, its employees, subconsultants or agents
constitutes a material breach of this Agreement, and grounds for termination for cause .
15. PROHIBITION AGAINST TRANSFERS:
Design Professional will 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 City 's consent will be null and void , and any
assignee , sublessee , hypothecate or transferee will acquire no right or interest by reason of any
attempted assignment, hypothecation or transfer . The sale , assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Design Professional , or of the
interest of any general partner or joint venturer or syndicate member or cotenant , if Design
Professional is a partnership or joint venture or syndicate or cotenancy, which results in
changing the control of Design Professional as a legal entity , will be construed as an
assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power of
the business entity .
16. PERMITS AND LICENSES:
Design Professional , at its sole expense , must 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 the Services .
17. WORK PRODUCT:
A. Property Rights. Any interest (including copyright interests) of Design
Professional or its subconsultant(s) in any work product, document, report , draft, memoranda ,
map , record , plan , drawing , specification and other deliverable , in any medium (collectively ,
"Work Product"), which has been prepared or created by Design Professional or its
subconsultant(s) pursuant to or in connection with this Agreement , will be the exclusive property
of City . No Work Product, information or other data given to or prepared, created , or assembled
by Design Professional or its subconsultant(s) pursuant to this Agreement may be made
available to any individual or organization by Design Professional or its subconsultant(s) without
prior written approval by City . All provisions of this section survive expiration or termination of
this Agreement.
B. Copyright. To the extent permitted by Title 17 of U.S. Code , all Work Product
prepared or created under this Agreement is deemed works for hi re and all copyrights in such
Work Product will be the property of City . In the event that it is ever determined that any Work
Product prepared or created by Design Professional or any subconsultant under this Agreement
are not works for hire under federal law , Design Professional hereby assigns to City all
copyrights to such Work Product when and as created . Subject to City 's prior written approval ,
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Design Professional may retain and use copies of such Work Product for reference and as
documentation of its experience and capabilities and in its promotional materials. With respect
to Design Professional 's standard details , Design Professional may retain the copyright , but
grants to City a perpetual non-exclusive license to use such details in connection with the
Services.
C. Patents and Licenses. Design Professional must pay any and all royalties or
license fees required for authorized use of any third party intellectual property , including , but not
limited to , patented , trademarked , or copyrighted intellectual property that it selects for
incorporation into the Services or Work Product provided under this Agreement.
D. Re-Use of Work Product. Without limit ing any other City right to any of the
Work Product prepared or created by Design Professional or its subconsultants , and subject to
the limitations of law, all Work Product prepared under this Agreement may be used or modified
by the City or its authorized agents in execution or implementation of:
1. The Services for which Design Professional was hired ;
2 . Completion of the Services by others ;
3 . Subsequent additions t o the Services ; and/or
4 . Other City projects .
E . Deliverables and Format. Electronic and hard copies of Design Professional 's
Work Product will constitute the Project deliverables. Plans must be in CAD and PDF formats ,
and unless otherwise specified , other documents must be in Microsoft Office applications and
PDF formats . All written Work Product required to be provided by this Agreement (other than
large-scale architectural plans and similar items) must be printed on recycled paper and copied
on both sides of the paper except for one original , which must be single-sided.
18. RECORDS:
Design Professional must mainta in complete and accurate records with respect to sales , costs ,
expenses , receipts and other such information required by the City that relate to the
performance of Services under this Agreement. Design Professional must maintain adequate
records of Services provided in sufficient detail to permit an evaluation of the Services. All such
records must be maintained in accordance with generally accepted accounting principles and
must be clearly identified and readily accessible. Design Professional must provide free access
to such books and records to the City or its agents at all times during Design Professional 's
normal business hours. Design Professional must give the City or its agents the right to examine
and audit those items , and to make transcripts or copies as necessary, and to inspect all work,
data , documents , proceedings and activities related to this Agreement. Such records , together
with supporting documents , must be kept separate from other documents and records which are
unrelated to this Agreement and must be maintained for a period of three years after receipt of
final payment from the City.
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 Design Professional must reimburse
City for all reasonable costs and expenses associated with the supplemental examination or
audit. The requirements of this section survive expiration or termination of this Agreement.
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19. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement must be given in
writing and will 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 ; or
upon confirmation of delivery by a reputable overnight delivery service .
A . To City. All notices , demands , requests , or approvals from Design Professional
to City must be addressed to City at:
City of Cupertino
10300 Torre Ave .
Cupertino CA 95014
Attention : John Raaymakers
B. To Design Professional. All notices , demands , requests , or approvals from City
to Design Professional must be addressed to Design Professional at:
Kimley-Horn Associates , Inc.
1300 Clay Street, Suite 325
Oakland , CA 94612
Attention: Elbert Chang
20. TERMINATION:
A. Termination for Convenience. City may , at any time, acting in its sole
discretion and without cause, terminate this Agreement for convenience by giving written notice
to Design Professional at least seven days before the effective date of the termination . If the
Agreement is terminated pursuant to this paragraph , the City will compensate Design
Professional for all Services satisfactorily performed prior to the effective date and time of the
termination , in accordance with this Agreement.
B. Termination for Cause. If Design Professional fails or refuses to perform any of
its duties under this Agreement at the time and in the manner required, Design Professional will
be deemed in default of this Agreement. If the default is not cured or diligently attempted to be
cured by Design Professional within the time specified in the City 's written notice of default, or if
the Design Professional has otherwise materially breached the Agreement , the City may
terminate the Agreement for cause by giving written notice to Design Professional at least seven
days before the effective date of the termination , unless otherwise specified in the written notice
of default.
C. Duties upon Termination. If the Agreement is terminated, whether for
convenience or cause , within seven days of the effective date of the termination, Design
Professional must promptly deliver to City copies of all Work Product, deliverables , or
documents prepared by Design Professional under this Agreement , including both print and
electronic versions . Full compliance with this requirement is a condition precedent to final
payment following termination . This paragraph survives termination of the Agreement.
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21. LEGAL REQUIREMENTS :
Design Professional must comply with all applicable local , state or federal laws, rules and
regulations, and all ordinances , rules and regulations enacted or issued by City . In addition , if
any of the Services provided under this Agreement are subject to prevailing wage requirements
under Labor Code Section 1720 et seq ., the following provisions apply to those Services:
A. Prevailing Wages. To the extent applicable , Design Professional must comply
with the City's Labor Compliance Program and all other requ irements set forth in Labor Code
section 1770 et seq .
B. Working Day. To the extent applicable , Design Professional must 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 ½ times the basic rate of pay .
C. Payroll Records. To the extent applicable , Design Professional must 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 ,
apprent ice , worker, or other employee employed by him or her in connection with this
Agreement. The payroll records must be made available for inspection as provided in
California Labor Code Section 1776 .
D. Apprentices . To the extent applicable , Design Professional must comply with
California Labor Code Section 1777.5 regarding apprentices .
22. DISPUTE RESOLUTION:
This Agreement will 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 must be filed
with the Superior Court for the County of Santa Clara , State of California , and no other place . If
the parties engage in arbitration to resolve a dispute relating to this Agreement , the arbitrator's
award must be supported by law and substantial evidence, and must include detailed written
findings of law and fact. This section survives expiration or termination of the Agreement.
23. ATTORNEY FEES:
If the City initiates a legal action , including a complaint or cross-complaint, arising out of, relating
to or seeking the interpretation or enforcement of the terms of this Agreement, the prevailing
party will be entitled to reasonable attorney fees and costs , including the attorney fees and costs
for any arbitration , appeal , or enforcement of judgment. This attorney fee provision does not
apply to legal actions initiated by the Design Professional. This section survives expiration or
termination of the Agreement.
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24. ADVERTISEMENT:
Design Professional may not post, exhibit , display or allow to be posted , exhibited , displayed
any signs , advertising , posters or cards of any kind on City property performed under this
Agreement w ithout prior written approval from the City .
25. WAIVER:
A waiver by City of any breach of any term , covenant , or condition contained herein will not be
deemed to be a waiver of any subsequent breach of the same or any other term , covenant , or
condit ion contained herein , whether of the same or a different character .
26. THIRD PARTY BENEFICIARIES:
There are no intended third party beneficiaries of this Agreement.
27. RECITALS:
The parties agree that the above recitals, which are made part of this Agreement, are true and
correct.
28. INTEGRATED AND AMENDMENT:
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 will be
held to vary the provisions hereof. Any modification of this Agreement will be effective only by
written instrument signed by authorized representatives for both City and Design Professional. If
any provision of this Agreement is determined to be illegal , invalid, or unenforceable by a court
of competent jurisdiction , all remaining provisions will remain in full force and effect.
29. CONFLICT OF INTEREST:
Design Professional warrants that it is not a conflict of interest for Design Professional to
perform the Services required by this Agreement. Design Professional may be required to fill
out a conflict of interest form if the Services provided under this Agreement require Design
Professional to make certa in governmental decisions or serve in a staff capacity as defined in
Title 2, Division 6 , Section 18700 of the California Code of Regulations .
30. GIFTS:
Design Professional is familiar with City 's prohibition against the acceptance of any gift by a City
officer or des ignated employee , as set forth in City Administrative Procedures . Design
Professional agrees not to offer any City officer or designated employee any gift prohibited by
the Administrative Procedures . Offering or giving a prohibited gift constitutes a material breach
of th is Agreement by Design Professional. In addition to any other remedies C ity may have in
law or equity , City may terminate this Agreement for cause as provided in Section 20 of this
Agreement.
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31. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement is deemed to be
enacted herein , and the Agreement will 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 will be amended to make such insertion on application by either party .
32. EXECUTION:
The person executing this Agreement on behalf of the Design Professional represents and
warrants that the Design Professional has full right , power , and authority to enter into and carry
out all actions contemplated by this Agreement and that he or she is authorized to execute this
Agreement, which constitutes a legally binding obligation of Design Professional. This
Agreement may be executed in counterparts, each one of which is deemed an original and all of
which , taken together, constitute a single binding instrument.
33 . HEADINGS:
The headings 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.
[Signatures on following page.]
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IN WITNESS WHEREOF , the parties have caused the Agreement to be executed.
Kimley-Horn Associates, Inc.
Name....;._;;;__,,,=.J-_;_....::....:.-=-==~--
T itle Sr. V,~ ~~ol,J
Date 3 /2 'is /17
Tax I.D . No .. 51o -O'li S!olS
Address :
1300 Clay Street, Suite 325
Oakland , CA 94612
Kimley-Horn Associates , Inc.
Fiber Network Expansion to Service Center
CITY OF CUPERTINO
A Mu n icipal Co r poration
Date :)/30/1 Z
APPROVED AS TO FORM :
Ra'fi dolph Stevenson Hom , City Attorney
ATTEST:
---~---/~~-d-d-:---v~~?~17
Grace Schmidt , City Clerk
Contract Amoun t: P-D 1 5b-D
Account No.:=~-~~-----
tf J-0 -£r't -0 -3? q tJ.> _q,o {;
c:;-reJO·, o i. .o "2-
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EXHIBIT A
Scope of Services
Design Professional shall provide certain Civil Engineering services as required and requested
by City.
PROJECT SCOPE
The purpose of the project is to provide a fiber connection between the Cupertino Senior Center
(21251 Stevens Creek Blvd) and Cupertino Service Center (10555 Mary Ave).
The work is to include furnishing and installing a 12 strand fiber-optic cable in new 3" conduit,
with new No. 6E pull boxes, installing conduit in ground, installing conduit dividers, furnishing
and installing fiber optic splice enclosures as needed, making fiber-optic splices in new and
existing splice enclosures and termination panels, furnishing and installing fiber-optic jumper
cables to communications equipment, and testing all fiber equipment and communications
between the Senior Center and the Service Center. The conduit is expected to be primarily
installed in the roadway at the lip of gutter (approximately 24" depth).
Section 1-General Provisions
A. Design Professional shall perform all services to the satisfaction of City's Public Works
Director or authorized Agent.
B. Design Professional shall perform all services under this agreement to the currently
prevailing professional standards and quality found among Civil Engineering Design
Professionals with similar knowledge and skill engaged in related work throughout California
under the same or similar circumstances.
C. Design Professional shall begin work only after receipt of a fully authorized and
executed Agreement and shall execute the Project work as detailed in the Agreement.
Unauthorized services performed by Design Professional shall be at no cost to City.
D. City shall designate a Project Manager for the Project. Design Professional shall
coordinate the Agreement performance with City's designated Project Manager.
Section 2 -Basic Services
As authorized by a fully executed Agreement, Design Professional shall provide Civil
Engineering services for the Fiber Network Expansion to Service Center Project (Project) in
accordance with the following:
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A. General Performance Requirements
1. Design Professional shall designate a Project Manager and provide to City the names of
their team members for the Project. The team members shall be satisfactory to City. Design
Professional shall not substitute any team members without the prior approval of City. City
retains the right to reject team members assigned by Design Professional or require
replacement of team members.
2. Design Professional shall effectively manage and administer the Project for the efficient,
progressive, and proactive delivery of the Project.
3 . Design Professional shall be responsible for managing and coordinating the work of all sub-
Design Professionals and subcontractors.
4. Design Professional shall consult and coordinate with the City and communicate with
members of the Project team.
5. Design Professional shall schedule meetings and prepare meeting agendas and minutes for
all Project meetings. All minutes of meetings are due to the City within ten (10) calendar
days after the meeting in a digital format and shall also be provided to other appropriate
agencies and entities, as directed by City.
6. Design Professional shall communicate weekly with City's assigned Project Manager to
provide an update on the current status of the Project.
B. Specific Performance Requirements
Task 1-DAT A COLLECTION
As part of this task, Design Professional will attend a kick-off meeting to review the project
scope and schedule . Design Professional will gather City-furnished information at the meeting.
• City of Cupertino Utility as-builts
• City of Cupertino curbline file (CAD or GIS)
• City of Cupertino right-of-way files
• Cupertino Quinlan Community Center Final Specifications (.doc)
Following this meeting, Design Professional and City staff will field investigate the network/
communications rooms of the Senior Center and Service Center where the network end
equipment is anticipated to be installed. Design Professional and City staff will conduct a
walkthrough of the proposed conduit route.
Using utility contacts provided by the City, Design Professional will notify utility companies
with known facilities in the vicinity requesting mapping of their lines and appurtenances
(Utility A letters). Any specific clearance or connection items will be requested for the various
facilities.
City IT will provide communications network equipment requirements to be included in the
project.
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Deliverables
• Kick-off Meeting Field investigation -attendance and notes
• Copies of Utility A letters (pdf)
Task 2 -DRAFT PS&E
Based on the information gathered in Task 1, Design Professional will prepare the DRAFT
Plans, Specifications (technical provisions), and Estimate of probable construction cost (PS&E).
We anticipate that the plan set will consist of up to six (6) sheets:
• Title Sheet with vicinity map (1 sheet)
• Notes and Legend (1 sheet)
• Interconnect Installation and Connection (1"=40') (up to 2 sheets)
• Details (up to 2 sheets)
Base Map
Design Professional will prepare project base map tracing curb lines from aerial and City of
Cupertino curbline files. Driveways, back of sidewalk, and City right-of-way will be shown.
DraftPS&E
The construction documents will show conduit route, pull boxes and fiber entry/ terminations
at Senior Center and Service Center. Utility information that has been received will be included.
The Title, Notes and Legend, and Details sheet will be based on the previous City of Cupertino
Quinlan Community Center Fiber Optic Expansion project.
City fiber diagram shall be basis of fiber-optic assignments. Design Professional will update the
Cupertino fiber diagram with project changes, calling out changes with revision clouds for City
review. Design Professional will confirm with the City what parts of the City fiber diagram (if
any) to include in the plan set details .
Design Professional will review and update the Cupertino Quinlan Community Center Fiber
Connection Project Specifications for this project.
Design Professional will coordinate with City IT for communication network equipment
requirements.
The Draft PS&E will be submitted electronically to the City for review and coordination with
others .
Deliverables
• Draft Project Plans in .pdf format (24"x36")
• Draft Specifications in MS-Word format
• Draft Estimate in MS-Excel format
• Revised City of Cupertino Fiber Splice Diagram (.pd£)
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Task 3 -FINAL PS&E
Design Professional will review City comments on the DRAFT PS&E documents and discuss
them by telephone with the City. Based on the comments and discussion, Design Professional
will advance the construction documents to FINAL design. Design Professional will submit
FINAL checkprint to City as .pd£ file for 1-day review prior to finalizing plans. Comments are
expected to be minor and editorial in nature.
Deliverables
• Final Plans in 24"x36" on bond, plus ll"xl7" reduced plans on bond.
• Plans will be signed and sealed by a State of California registered civil engineer.
• Plans will be provided to the City of Cupertino electronically in AutoCAD and pd£
formats.
• Final Specifications will be provided in electronic and hardcopy formats.
• Final estimate of probable construction cost in electronic and hardcopy format.
• Estimated working days for construction will be included in the specifications.
Task 4 -POST DESIGN SERVICES
As part of Post Design services, Design Professional will provide the following services to the
City as requested by the City (up to hours allocated)
• Participate in pre-construction and field meetings as requested by the City;
• Review Contractor subrnittals;
• Review of change order requests and request for substitutions;
• Responding to City and Contractor RFis as necessary to clarify interpretation of
construction documents;
• Assist with project closeout, including preparation of records drawings based on
Contractor as-built mark-ups;
• Review of splicing and testing results;
• Review of Contractor progress;
• Review Project close-out documents;
• Review Contractor as-built drawings and incorporate into AutoCAD
Task 5 -ADDITIONAL SERVICES
Design Professional services not specifically identified in the Scope of Services shall be
considered Additional Services. At the City's request, the Design Professional shall provide a
fee proposal for specific additional services consistent with the professional rate schedule in
Exhibit C.
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EXHIBIT B
Schedule of Performance
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.
Completion
Task #1 Data Collection 2 weeks after
Notice to
Proceed (NTP)
for this work
Task#2 DraftPS&E 3 weeks after
completion of
Task #1
Task #3 FinalPS&E 2 weeks after
receiving all
comments on
the Draft PS&E
Task #4 Post-Design Services 2 weeks after
receiving
Contractor mark-
ups
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A. Maximum Compensation.
EXHIBIT C
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 CONSULTANT under this AGREEMENT, including both payment
for professional services, additional services and reimbursable expenses, shall not exceed
TWENTY EIGHT THOUSAND AND FIVE HUNDRED DOLLARS ($28,500). 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 TWENTY-THREE THOUSAND, SEVEN
HUNDRED AND FIFTY DOLLARS ($23,750). The maximum amount of Additional Services
are authorized under Section F of this EXHIBIT C is FOUR THOUSAND SEVEN HUNDRED
AND FIFTY DOLLARS ($4,750).
B. Method of Payment
For Task Nos . 1 through 4 CONSULTANT shall, during the term of this AGREEMENT, invoice
the CITY monthly based upon a percentage of completion of each task, and reimbursable
expenses incurred if applicable, in completing that task 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 task completed, and it shall describe the topics
and tasks completed during the Invoice period in accordance with the Budget Schedule set forth
below. The Invoice shall list work completed and reimbursable expenses if applicable, in
accordance with the Budget 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.
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C. Budget Schedule
The Budget Schedule for this AGREEMENT shall be as follows:
Description Compensation
Task 1 Data Collection 4,200
Task2 DraftPS&E 8,510
Task3 Final PS&E 5,805
Task4 Post-Design Services 5,235
Additional Services 4,750
TOTAL $28,500
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 TWENTY EIGHT THOUSAND, FIVE HUNDRED DOLLARS ($28,500).
D. Subconsultant Services.
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 CONSULT ANT as part of the Basic Services.
E. 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 1-4 of EXHIBIT A.
F. 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 FOUR THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS ($4,750) 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.
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EXHIBIT C-1
Consultant Hourly Rates for Additional Services
TECHNICAL SUPPORT ........................................................ $105 .00 -$125 .00
SENIOR TECHNICAL SUPPORT ........................................... $120.00 -$180.00
SUPPORT STAFF ....................................................................... $85.00-$105.00
PROFESSIONAL ........................................................................ $115.00 -$165.00
SENIOR PROFESSIONAL ........................................................ $180 .00 -$325.00
PRINCIPAL ............................................................................... $295.00 -$325.00
Reimbursable Expenses. The following are allowed Reimbursable Expenses for authorized
Additional Services compensated on an hourly basis (time and expenses), subject to the
compensation limits in Section 4 of the Agreement:
• Necessary subconsultant services
• Individual or multiple document reproductions that exceed 50 pages
• Drawing or bid set reproductions to the extent authorized by City
• Special software required by City specifically for the Project, excluding standard
software programs such as Microsoft Office suite applications (i.e. Word, Excel,
PowerPoint, Project, etc.), Adobe Acrobat, or standard photo editing programs
• Necessary travel expenses to the extent allowed by City policy, with mileage
reimbursed per the current IRS standard mileage rate at the time of travel
• Safety equipment required by City policy or the Project scope of services
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