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18-122 Hexagon Transportation Consultants, Inc., trip generation study and site access for proposed preschool at 10505 Miller Ave
.FIRST AMENDMENT TO AGREEMENT t s-122 BETWEEN TlfE CITY OF CUPERTINO AND HEXAGON TRANSPQRATION CONSULTANT TNC FOR TRIP GENERATION STUDY AND SITE ACCESS ANALYSIS FOR 10505 MILLER AVE This First Amendment to Agreement 18-122 Hexagon Transportation Consultants, Inc between the City of Cupertino and Hexagon Transportation Consultant, Inc, for reference dated 1/18/2019, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and, a Corporation ("Consultant") whose address is 4 North Second Street, Suite 400, San Jose, CA 95113, and is made with reference to the following: RECITALS: A On 6/22/2018, an agreement was entered into by and between City and Consultant (hereinafter "Agreement") for Consulting, Assessment and Planning Services. The agreement will expire on 6/30/2019. B. The Agreement and the First Amendments are collectively referred to as the "Agreement" unless otherwise indicated. C. City and Consultant desire to modify the Agreement on the tenns and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. Compensation Paragraph 4.1 of the Agreement is modified to read as follows: Maximum Compensation. City will pay contractor for satisfactory perfommnce of the Services an amount that will based on actual costs but that will be capped so as not to exceed $8,000. 2. Except as expressly modified herein, all other tenns and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. APPROVED AS TO FORM ..., ~~ City Attorney City Clerk ,2 -;2,J·-/ Cf EXPENDITURE DISTRIBUTION PO #2019-146 100-71-701-701-702 Original $5000 Amendment #1: $3000 Amendment #2: Total: $8000 EXHIBIT A & C-Scope of Services and Contract Budget Ill"' '41111111 ..._ 4 ~ ~XMON T ~ANSPO~T ATI ON ( ONSUl T ANTS, I NC. November 8, 2018 Ms. Erika Poveda Assistant Planner City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Subject: Additional Services Request for the Agape Preschool Project at 10505 Miller Avenue in Cupertino, California Dear Ms. Poveda: The trip generation and site access study prepared for the proposed Agape Christian Preschool at 10505 Miller Avenue needs to be revised to reflect the new project description. This revision will be the second time the study was revised to address changes to the project. The first report revision, completed in October 2018, addressed changes to the site plan, site access, and on- site circulation patterns. Analyzing a modified project description was not included in our original scope of work for this project and is considered Additional Services. The cost associated with the additional work amounts to $3,000. Approval of this agreement will bring our total contract value for this project to $8,000. We are ready to sign your standard contract amendment to authorize this work. Please feel free to contact me if you have any questions. Thank you. Sincerely, HEXAGON TRANSPORTATION CONSULTANTS, INC. Brian Jackson Senior Associate 4 North Second Street, Suite 400 · San Jose, California 95113 • phone 408.971.6100 • fax 408 .971.6102 · www.hextrans.com PROFESSIONAL/CONSULTING SERVICES AGREEMENT CUPERTINO 1. PARTIES This Agreement is made and entered into as of June 22 2018 ---~--------------("Effective Date") by and between the City of Cupertino, a municipal corporation ("City"), and Hexagon Transportation Consultants, Inc ("Contractor"), a corporation for a trip generation study and site access analysis for a proposed preschool at 10505 Miller Avt 2. SERVICES Contractor agrees to provide the services and perform the tasks ("Services") set forth in detail in Scope of Services, attached here and incorporated as Exhibit A. 3. TIME OF PERFORMANCE 3.1 This Agreement begins on the Effective Date and ends on June 30, 2019 ("Contract Time"), unless terminated earlier as provided herein. Contractor's Services shall begin on June 25, 2018 and shall be completed by J_u_n_e_3_0"-, 2_0_1_9 _____ _ 3.2 Schedule of Performance. Contractor must deliver the ·services in accordance with the Schedule of Performance, attached and incorporated here Exhibit B. 3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $ 5000 ("Contract Price"), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor's actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City. 4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable completed and the amount due for the preceding month. Within thirty (30) days of completion of Services, Contractor must submit a requisition for final and complete payment of costs and pending claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any further payment or other obligations under the Agreement. Project 10505 Miller Ave Page 1 of8 Professional/Consulting Contracts/Version: May 22, 2018 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits, worker's compensation or other benefits from the City. 5.2 Contractor's Qualifications. Contractor warrants on behalfof itselfand its subcontractors that they have the qualifications and skills to perform the Services in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Services as required by law and have procured a City Business License. 5.4 Subcontractors. Only Contractor's employees are authorized to work under this Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approved subcontractor. 5.5 Tools, Materials and Equipment. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement. 5.6 Payment of Taxes. Contractor must pay income taxes on the money earned under this Agreement. Upon City's request, Contractor will provide proof of payment and will indemnify City for violations pursuant to the indemnification provision of this Agreement. 6. PROPRIETARY/CONFIDENTIAL INFORMATION In performing this Agreement, Contractor may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details the disclosure of which to third parties may be damaging to City. Contractor shall hold in confidence all City information provided by City to Contractor and use it only to perform this Agreement. Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document or other information or work, in any medium (collectively, "Work Product"), prepared by Contractor in connection with this Agreement will be the exclusive property of the City and shall not be shown to any third-party without prior written approval of City. 7.2 Copyright. To the extent permitted by Title 17 of U.S. Code, all Work Product arising out of this Agreement is considered "works for hire" and all copyrights to the Work Product will be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights. Contractor may use copies of the Work Product for promotion only with City's written approval. Project 10505 Miller Ave Page 2 of8 Professional/Consulting Contracts /Version: May 22, 2018 7.3 Patents and Licenses. Contractor must pay 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 if incorporated into the Services or Work Product of this Agreement. 7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City may use or modify the Work Product of Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of the following: (a) The original Services for which Contractor was hired; (b) Completion of the original Services by others; (c) Subsequent additions to the original Services; and/or ( d) Other City projects. 7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work Product, on recycled paper and copied on both sides, except for one single-sided original. 8. RECORDS Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor's performance, benchmarks and deliverables, which must be available to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four years from the date of City's final payment. 9. ASSIGNMENT Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Agreement and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. 10. PUBLICITY/ SIGNS Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the City's contributions in making the project possible. The words "City of Cupertino" will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews and newspaper articles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold Project 10505 Miller Ave Page 3 of 8 Professional/Consulting Contracts !Version: May 22, 2018 harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers and consultants ("Indemnitees"), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs and expenses (including attorney fees, legal costs and expenses related to litigation and dispute resolution proceedings) of every nature, arising directly or indirectly from this Agreement or in any manner relating to any of the following: (a) Breach of contract, obligations, representations or warranties; (b) Negligent or willful acts or omissions committed during performance of the Services; ( c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; (d) Unauthorized use or disclosure of City's confidential and proprietary Information; (e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim, in accordance with California Public Contract Code Section 9201. At City's request, Contractor will assist City in the defense of a claim, dispute or lawsuit arising out of this Agreement. 11.3 Contractor's duties under this section are not limited to the Contract Price, workers' compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee. 11.4. Contractor's payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement, a purchase order, or other transaction. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor's compensation or terminating the Agreement. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local, state and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor's ability to perform. Contractor is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act. Project 10505 Miller Ave Page 4 of 8 Professional/Consulting Contracts /Version: May 22, 2018 13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a "public works" component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS) or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777 and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or its employees or sub-contractors will not be tolerated. 13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of the California Code of Regulations. Contractor agrees to abide by the City's rules governing gifts to public officials and employees. 13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek indemnification under Section 11 of this Agreement. 14. PROJECT COORDINATION City Project Manager. The City assigns Erika Poveda, Assistant Planner as the City's representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. City reserves the right to substitute another Project manager at any time, and without prior notice to Contractor. Contractor Project Manager. Subject to City approval, Contractor assigns Gary Black, President as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor's Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City's Project Manager about the progress with the work or any delays, as required under the Scope of Services. City written approval is required prior to substituting a new Representative. 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment, and will be Project 10505 Miller Ave Page 5 of 8 Professional/Consulting Contracts !Version: May 22, 2018 given reasonable time to assemble the work and close out the Services. With City's pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum often percent (10%) of the total time expended to date in the performance of the Services. 16. TERMINATION City rhay terminate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Contractor closes out the Services and delivers the Work Product. 17. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide the Services pendingresolution of the dispute. If the Parties elect arbitration, the arbitrator's award must be supported by law and substantial evidence and include detailed written findings of law and fact. 18. ATTORNEY FEES If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or other proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs. 19. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Agreement. 20. WAIVER Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City's waiver of a breach shall not constitute waiver of another provision or breach. 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of every kind or nature between the Parties, and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties. Any modification of this Agreement will be effective only if in writing and signed by each Party's authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between the main Agreement and the attachments or exhibits thereto, the text of the main Agreement shall prevail. Project 10505 Miller Ave Page 6 of 8 Professional/Consulting Contracts /Version: May 22, 2018 22. INSERTED PROVISIONS Each provision and clause required by law for this Agreement is deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. The Parties will collaborate to implement this Section, as appropriate. 23. 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. 24. SEVERABILITY IP ARTIAL INVALIDITY If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this Agreement to carry out its intent. 25. SURVIVAL All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law and Attorney Fees, shall survive the Agreement and remain in full force and effect. 26. NOTICES All notices, requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino 10300 Torre Ave., Cupertino CA 95014 Attention: Erika Poveda Email: erikap@cupertino.org To Contractor: Hexagon Transporation Consultants, Inc 4 N. Second St, Suite 400, San Jose, CA 95113 Attention: Gary Black, President Email: gblack@hextrans.com 27. VALIDITY OF CONTRACT This Agreement is valid and enforceable only if (a) it complies with the purchasing and contract provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, as amended from time to time, (b) is signed by the City Manager or an authorized designee, and ( c) is approved for form by the City Attorney's Office. Project 10505 Miller Ave Page 7 of 8 Professional/Consulting Contracts !Version: May 22, 2018 28. EXECUTION The person executing this Agreement on behalf of Contractor represents and warTants that Contractor has foll 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 Contractor. 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 IN ,vITNESS WHEREOF, the pmtics have caused the Agreement to be executed. CONTRACTOR By Name Gary Black Name Aarti Shrivastava·-······-·-·--- Title Assistant City Manager Date June 26, 2018 1'<.Lx l.D. No.: 77-0478675 Cupertino Acting City Attomey ~~ GRACE SCHMIDT "I, r,(O City Clerk / J · Project ·10505 Miller Ave •-----n•.,••••-·•••m•------------------Page 8 of 8 Professional/Consulting Contracts !Version: May 22. 2018 EXHIBIT A ~[XAqQN T~ANSPORTATION (ONSULTANTS, IN<. June 8, 2018 Ms. Erika Poveda Assistant Planner City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Re: Proposal to Prepare a Trip Generation Study and Site Access Analysis for a Proposed Preschool at 10505 Miller Avenue in Cupertino, California Dear Ms. Poveda: Hexagon Transportation Consultants, Inc. is pleased to submit this proposal to prepare a site access and trip generation study for a proposed preschool at 10505 Miller Avenue in Cupertino, California. As proposed, the Agape Christian preschool would operate within an existing Church building and would likely operate Monday through Friday from approximately 8:00 AM to 6:00 PM (although the hours of operation still need to be finalized). It is our understanding that the preschool does not plan to implement staggered start times, but that some students would attend the preschool on a full-time basis (6:00 PM end time) while others would attend on a part-time basis (3:00 PM end time). The preschool would accommodate a maximum of 87 children (ages 2 to 5 years) and a maximum of 9 teachers. The project would utilize the existing parking lot, which is shared with the church. Scope of Services The purpose of the transportation study is to determine the number of weekday AM and PM peak hour trips generated by the proposed preschool, and to identify any potential site access or on- site circulation issues that could occur as a result of the preschool operating at the proposed church location. The tasks to be included in the traffic analysis are: 1. Project Trip Generation. The vehicular trips generated by the proposed project will be determined based on counts of the existing 60-student Agape Christian Preschool currently operating in Santa Clara, California. The weekday AM (7:00-9:00 AM) and PM (4:00-6:00 PM) peak hour vehicular trip rates obtained from the counts will be applied to the proposed 87-student preschool in Cupertino. The project-generated trips will be assigned to the site driveways. 2. Site Access and On-Site Circulation. A site circulation and access review will be conducted to determine the adequacy of the existing site driveways and parking layout in accordance with generally accepted traffic engineering standards and City design standards. An analysis of vehicle operations and queuing associated with dropping off and picking up students also will be included. On-site vehicle queues will be estimated to determine if the site layout is adequate to serve the preschool traffic. It is assumed that all parents will be required to park and walk their child into the school/church building. 3 .. Reports. Our methods, findings and recommendations will be summarized in a draft traffic memo. The traffic memo will be submitted electronically. Hexagon Transportation Consultants will respond to editorial comments and prepare a final traffic memo. Hard copies of the final traffic memo can be provided upon request. 4 North Second Street, Suite 400 • San Jose, California 95113 · phone 408.971.6100 • fax 408.971.6102 • www.heKtrans.com P""'"~ Ms. Tanya Sheckley April 16, 2018 ..,_...d Page 2 of2 EXHIBIT B & C Optional Task 1 -Project Trip Generation Alternative If counts of the existing Agape Christian Preschool in Santa Clara are not feasible, or if City of Cupertino staff would rather not count the existing preschool or other preschool for any reason, then the weekday AM and PM peak hour vehicular trips generated by the preschool will be estimated using standard trip rates for Private School (Land Use 536) published in the Institute of Transportation Engineers' (ITE) Trip Generation Manual, 10th Edition (2017). Choosing this optional trip generation task will reduce the total cost of the transportation study by $600. Additional Services Any work not specifically referenced in the above Scope of Work-for example (but not limited to) analyzing a different project description or project alternatives, conducting additional counts, analyzing intersections or roadways, analyzing different phases of development, protracted project schedule, attending any meetings, drawing conceptual plans for any proposed improvements, conducting a parking study, or preparing a TOM Plan to support a reduction in trip generation and/or parking supply-shall be considered additional services. Additional services shall be provided upon authorization and will require additional budget and time. Schedule and Budget The cost for services rendered under this agreement is quoted for a lump sum amount of $5,600, which includes $600 for trip generation counts. Billings will be conducted monthly, on a percent complete basis. This price quote is good for 30 days and assumes that all project-related activities will be completed within one year. Extended project schedules may require additional budget for project administration. Barring any unforeseen delays, a draft traffic memo will be submitted approximately four weeks after receipt of a signed contract agreement. The final traffic memo will be delivered one week after receipt of all comments. We are ready to sign your standard contract agreement. We look forward to working with you and appreciate your consideration of Hexagon Transportation Consultants, Inc. for this assignment. If you have any questions, please do not hesitate to call. Thank you. Sincerely, HEXAGON TRANSPORTATION CONSULTANTS, INC. ~ Gary K. Black President Brian Jackson Senior Associate EXHIBIT D .lnsurcmce Requirements Design Professitmals & Consultants Contracts Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the fi:lllowing insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICUt;S AND MINIMUMS REQUIRED 1. Commercial General Lia/Jili(J! (CGL) for bodily injury, property damage, personal injury liability for · premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 0 I). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence Jim it. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 Ol (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 0 I covering any auto-tinc-Iuding-owned;-hired, and-nonccowned --·--- autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: As required by the State of California, with Statutory Limits and Employer's Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. D Not required Consultant has provided written ver(fication ofno employees. 4. Professional Liabilit;v fclr professional acts, errors and omissions, as appropriate to Consultant's profession, with limits no less than $2,000,000 per occurrence or $2,000,000 aggregate. If written on a claims made fbrm: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance 1.nust be maintained for at least five (5) years after completion of the Services. c. 1f coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to tbe Contract Effective Date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of the Services. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Exh. D-lnsurunce Requirementsjbr Design Prqfessionals & Consultants Contracts l Form Updated Feb. 20 l 8 Additional lns11red Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers ("Additional Insureds") are to be covert:!d as additional insureds on Consultant's CGL policy. General Liability coverage can be provided in the form of an endorsement to Consultant;s insurance (at least as broad as ISO Form CG 20 l O (11 / 85) or both CG 20 10 and CG 20 3 7 forms, if later editions are used). Primary C())>erage Coverage afforded to City/ Additional [nsureds shall be primary instuancc. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant's insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shaH not be canceled or aIJowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. WaiPer <?( Subrogation Consultant waives any right to subrogation against City/ Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultm1t, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles mul Se(f-lnsured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City's option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or tlle City. Acceptabili('r of Insurers Insurers must be licensed to do business in Califrirnia with an A.M. Best Rating of A-VII, orbetter. Ver(ficat;on of Coverage-· ------------- Consultant must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time duringthe Contract term. Suhco11sultants Consulta11t shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant's insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage fbr the higher insurance limits maintained byConsultant Adequacy of Co11erage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. , ................... J::,_~r_h_. l_)_-I_n._Y1_1r_m_1c_·e_f_?e...:.q_u,_·r_en_1e_'n_1.-'-1·.fl_o_r_D_e_s1.::.f;_11_P_r...:.qfi __ e._~s_·ii_m_a_l.1_· c_.~_< __ :·o_n_s1_il_ra_n_1.1_· c_.··:c_m_1,_·a_c_rs ____ l·_i:i_rn_1_(...:.Jp_da.re<:_~-~;-'eb_. _2~!~·······--· .. -····---· ../ 2 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (M M/DD/YYYY) \,,,.,... ..... -/ 6/15/2018 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: lfthe certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ~~~~~CT Samantha Dutra RC Fischer Co iA~gNJo Extl: 925-627-5467 I FAX 1301 Ygnacio Valley Rd #100 IA/C Nol: 925-932-0962 Walnut Creek CA 94596 ~t1D'i{~ss: sdutra@rctischer.com INSURER(S) AFFORDING COVERAGE NAIC# INSURER A : Travelers Indemnity of CT 25682 INSURED HEXAG-1 INSURER B: Travelers Prop Gas Co of Amer 25674 Hexagon Transportation Consultants, Inc. INSURERC: Technology Insurance Company 4 North Second St., #400 San Jose CA 95113 INSURER D: Argonaut Insurance Company INSURER E: Travelers Indemnity Co. INSURER F: COVERAGES CERTIFICATE NUMBER: 198469343 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE 1•1sn lun,n POLICY NUMBER IM M/DD/YYYYl IMM/DD/YYYYl LIMITS A X COMMERCIAL GENERAL LIABILITY y y 6807H532991 3/1/2018 3/1/2019 EACH OCCURRENCE $2,000,000 -D CLAIMS-MADE 0 OCCUR DAMAGE TO RENTED -PREMISES !Ea occurrence\ $1,000,000 MED EXP (Any one person) $5,000 - PERSONAL & ADV INJURY $2,000,000 - GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $4,000,000 =l 0 PRO-DLOC PRODUCTS -COMP/OP AGG $4,000,000 POLICY JECT OTHER: $ E AUTOMOBILE LIABILITY y BA9H798647 3/1/2018 3/1/2019 COMBINED SINGLE LIMIT $1 000 000 !Ea accidenll f----- ANY AUTO BODILY INJURY (Per person) $ f-----ALL OWNED -SCHEDULED BODILY INJURY (Per accident) $ AUTOS -AUTOS X X NON-OWNED ip~7~~J,':;t~AMAGE $ f----- HIRED AUTOS AUTOS $ B UMBRELLA LIAS H OCCUR CUP5819P929 3/1/2018 3/1/2019 EACH OCCURRENCE $5,000,000 X EXCESS LIAB CLAIMS-MADE AGGREGATE $5,000,000 ---oED I-X-h,ETENTlON$n----------------------------------------_$ ___ ------- C WORKERS COMPENSATION y TWC3697463 3/1/2018 3/1/2019 X I rrfTUTE I I OTH-ER AND EMPLOYERS' LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE IT] N/A E.L. EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? (Mandatory In NH) E. L. DISEASE -EA EMPLOYEE $1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $1,000,000 D Professional Liability IAE42074300 311/2018 3/1/2019 Each Claim $2,000,000 Claims-Made Form Aggregate $2,000,000 Deductible $5,000 DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is required) RE: On Call Traffic Review services: 7/1/18-6/30/22 30 days notice of cancellation, 1 O days notice of cancellation for non-payment of premium. CERTIFICATE HOLDER City of Cupertino 10300 Torre Avenue Cupertino CA 95014 ACORD 25 (2014/01) CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. © 1988-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Named Insured: Hexagon Transportation Consultants, Inc. Policy No. 680-7H32991 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) rhis endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART I. The following is added to SECTION II -WHO IS AN INSURED: Any person or organization that you agree in a "written contract requiring insurance" to include as an additional insured on this Coverage Part, but: a. Only with respect to liability for "bodily injury", "property damage" or "personal injury''; and b. If, and only to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of "your work" to which the "written contract requiring insurance" applies, or in connection with premises owned by or rented to you. The person or organization does not qualify as an additional insured: c. With respect to the independent acts or omissions of such person or organization; or d. For "bodily injury", "property damage" or "personal injury" for which such person or organization has assumed liability in a h. This insurance does not apply to "bodily injury'' or "property damage" caused by "your work" and included in the "products- completed operations hazard" unless the ''written contract requiring insurance" specifically requires you to provide such coverage for that additional insured, and then the insurance provided to the additional insured applies only to such "bodily injury" or "property damage" that occurs before the end of the period of time for which the "written contract requiring insurance" requires you to provide such coverage or the end of the policy period, whichever is earlier. 2. The following is added to Paragraph 4.a. of SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS: The insurance provided to the additional insured is excess over any valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the additional insured for a loss we cover. However, if contract or agreement. you specifically agree in the "written contract The insurance-provided-to-such-additional-insured-----requiring-insurance" that-this insurance provided is limited as follows: to the additional insured under this Coverage Part e. This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specifically is added by another endorsement to this Coverage Part. f. This insurance does not apply to the rendering of or failure to render any "professional services". g. In the event that the Limits of Insurance of the Coverage Part shown in the Declarations exceed the limits of liability required by the "written contract requiring insurance", the insurance provided to the additional insured shall be limited to the limits of liability required by that "written contract requiring insurance". This endorsement does not increase the limits of insurance described in Section Ill - Limits Of Insurance. must apply on a primary basis or a primary and non-contributory basis, this insurance is primary to other insurance available to the additional insured which covers that person or organizations as a named insured for such loss, and we will not share with the other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage is sought occurs; and (2) The "personal injury'' for which coverage is sought arises out of an offense committed; after you have signed that "written contract requiring insurance". But this insurance provided to the additional insured still is excess over valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the additional insured when that person or organization is an additional insured under any other insurance. CG D3 81 0915 © 2015 The Travelers Indemnity Company. All rights reserved. Page 1 of2 Includes the copyrighted material of Insurance Services Office, Inc., with its permission COMMERCIAL GENERAL LIABILITY 3. The following is added to Paragraph 8., Transfer Of Rights Of Recovery Against others To Us, of SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS: We waive any right of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal injury'' arising out of "your work" performed by you, or on your behalf, done under a "written contract requiring insurance" with that person or organization. We waive this right only where you have agreed to do so as part of the "written contract requiring insurance" with such person or organization signed by you before, and in effect when, the "bodily injury" or "property damage" occurs, or the "personal injury'' offense is committed. Named Insured: Hexagon Transportation Consultants, Inc. Policy No. 680-7H32991 4. The following definition is added to the DEFINITIONS Section: "Written contract requiring insurance" means that part of any written contract under which you are required to include a person or organization as an additional insured on this Coverage Part, provided that the "bodily injury" and "property damage" occurs and the "personal injury" is caused by an offense committed: a. After you have signed that written contract; b. While that part of the written contract is in effect; and c. Before the end of the policy period. Page 2 of2 © 2015 The Travelers Indemnity Company. All rights reserved. CG D3 81 0915 Includes the copyrighted material of Insurance Services Office, Inc., with its permission Policy No. BA9H798647 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET WAIVER OF SUBROGATION This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM The following replaces Paragraph A.5., Transfer of Rights Of Recovery Against Others To Us, of the CONDITIONS Section: 5. Transfer Of Rights Of Recovery Against 0th• ers To Us We waive any right of recovery we may have against any person or organization to the extent required of you by a written contract executed prior to any "accident" or "loss", provided that the "accident" or "loss" arises out of the operations contemplated by such contract. The waiver ap- plies only to the person or organization desig- nated in such contract. CA T340 0215 @ 2015 The Travelers Indemnity Company. All rights reserved, Page 1 of 1 Includes copyrighted material of Insurance Services Office, Inc. with Its permissron. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT WC 00 03 13 (Ed. 04-84) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Any person or organization as required by written contract 250.00 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective Insured Insurance Company WC 00 0313 (Ed. 04-84) 3/1/2018 Policy No. TWC3697463 Endorsement No. O Hexagon Transportation Consultants, Inc. Premium $ 9257 Technology Insurance Company, Inc. Countersigned by __________________ _ WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 04 04 (Ed. 04-84) PENDING RATE CHANGE ENDORSEMENT A rate change filing is being considered by the proper regulatory authority. The filing may result in rates different from the rates shown on the policy. If it does, we will issue an endorsement to show the new rates and their effective date. If only one state is shown in Item 3.A. of the Information Page, this endorsement applies to that state. If more than one state is shown there, this endorsement applies only in the state shown in the Schedule. Schedule State AZ This endorsement changes the policy to which it is attached and is effective on the date Issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective Insured Insurance Company WC 00 0404 (Ed. 04-84) 3/1/2018 Policy No. TWC3697463 Hexagon Transportation Consultants, Inc. Technology Insurance Company, Inc. Endorsement No. O Premium $ 9257 Countersigned by ___________________ _