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90-045u - Blackberry Farm - Kier & Wright, Civil Engineers - Various Improvement Projects for BBF Reso 8573RESOLUTION NO. 8573 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF CONTRACT WITH KIER AND WRIGHT FOR IMPROVEMENT AT BLACKBERRY FARM WHEREAS, the City of Cupertino desires to retain services in conjunction with a site survey and plans and specifications for Blackberry Farm; and WHEREAS, the City of Cupertino finds it desirous to engage a contractor to provide these services; and WHEREAS, selection of contractor is based on qualifications and experience in the performance of such services; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby authorizes the Mayor and City Clerk to execute the agreement between the City of Cupertino and Kier and Wright for said services at Blackberry Farm. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 21st day of January 1992, by the following vote: Vote AYES: NOES: ABSENT: ABSTAIN: ATTEST: Members of the City Council Dean, Goldman, I:oppel, Szabo, None None None /s/ Dorothy Cornelius City Clerk SorensenTHIS IS TO CERTIFY THAT THE WITHIN INSTRUMENT iSATRUEAND CORRECTCOPY OF THE ORIGIN L ON FILE IN THIS OFFICE. ATTEST— _. _19 CITY CLEFS OFT E CITY F CUPERTINO a+ r.1TY APPROVED: 1s/ Lauralee Sorensen Mayor, City of Cupertino ACCOUNT NO. 620-9105-9512 5 4 8 7 CONTRACT AMOUNT Not to Exceed $37.000 PURCHASE ORDER NO. 44.21D THIS AGREEMENT, made and entered into this 21 day of January , 19 92 , by and between the CITY OF CUPERI'INO, a municipal corporation of California, hereinafter referred to as "CITY", and IUEE2 & WRIGHT, a civil engineer firm with offices at 3350 Scott Boulevard, Bldg. 22, Santa Clara, CA 95054, hereinafter referred to as "CONTRACTOR"; WITNESSETH. WHEREAS, CITY desires to retain services in conjunction with a site survey and plans and specifications for Blackberry Farm; and WHEREAS, CITY desires to engage CONTRACTOR to provide these services by reason of its qualifications and experience for performing such services, and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows: 1. DEFINITIONS. (a) The word "City" as used in this agreement shall mean and include all the territory lying within the municipal boundaries of the City of Cupertino, California, as presently existing, plus all territory which may be added thereto during the term of this agreement by annexation or otherwise. (b) The term "City Manager" shall mean the duly appointed City Manager of the City of Cupertino, California, or his designated representative. (c) The term "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino, California, or his designated representative. (d) The term "City Clerk" shall mean the duly appointed City Clerk of the City of Cupertino, California, or her designated representative. -1- 2. PROTECT COORDINATION. (a) City. The City Manager shall be representative of CITY for all purposes under this agreement. Stephen G. Dowling hereby is designated as the PRO= MANAGER for the City Manager, and shall supervise the progress and execution of this agreement. (b) Contractor. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this agreement for CONTRACTOR. Richard T. Kier hereby is designated as the PROTECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this agreement require a substitute PROJECT DIRECTOR for any reason, the PROJECT DIRECTOR designee shall be subject to the prior written acceptance and approval of the PROTECT MANAGER. 3. DUTIES OF CONTRACTOR. (a) Services to be Furnished. CONTRACTOR shall provide all specified services as set forth below: (1) As per attached proposal (Exhibit A) (b) Laws to be Observed. CONTRACTOR shall: (1) Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the services to be performed by CONTRACTOR under this agreement; (2) Keep itself fully informed of all existing and future federal, state, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this agreement, any materials used in CONTRACTOR's performance under this agreement, or the conduct of the services under this agreement; -2- (3) At all times observe and comply with, and cause all of its subcontractors and employees, if any, to observe and comply with, all of said laws, ordinances, regulations, orders, and decrees mentioned above; (4) Immediately report to the PROJECT MANAGER in writing any discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawing, specifications, or provisions of this agreement. (c) Release of Reports and Information. Any reports, information, data, or other material given to, or prepared or assembled by, CONTRACTOR or its subcontractors, if any, under this agreement shall be the property of CITY and shall not be made available to any individual or organization by CONTRACTOR or its subcontractors, if any, without the prior written approval of the City Manager. (d) Copies of Reports and Information. If CITY requests additional copies of reports, drawings, specifications or any other material which CONTRACTOR is required to furnish in limited quantities as part of the services under this agreement, CONTRACTOR shall provide such additional copies as are requested and CITY shall compensate CONTRACTOR for the costs of duplicating of such copies at CONTRACTOR'S cost. (e) Final Report. CONTRACTOR shall provide CITY with topographic survey, plans and specs (three) copies of the final report required under this agreement upon completion and acceptance of the report by CITY. (f) Qualifications of Contractor. CONTRACTOR represents that it is qualified to furnish the services described under this agreement. As evidence thereof, CONTRACTOR warrants that one or more members or employees of the firm are licensed by the State of California and that the services to be provided under this agreement will be performed by them or under their supervision. 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR a total sum not to exceed Thirty -Seven Thousand Dollars ($37,000), payable by progress payments upon submission by CONTRACTOR of its itemized billings in triplicate, in accordance with the following fee schedule. 5. TERM. The services to be performed hereunder shall commence on January 20, 1992, and shall be completed by April 1, 1992. -3- 6. TEMPORARY SUSPENSION. The City Manger shall have the authority to suspend this agreement, wholly or in part, for such period as he deems necessary due to unfavorable conditions or to the failure on the part of the CONTRACTOR to perform any provision of this agreement. 7. EXTENSION OF TERM. In the event that the services called for under this agreement are not completed within the time specified above, the City Manager shall have the option to extend the time for completion. This paragraph does not preclude the recovery of damages for delay by either party. 8. SUSPENSION; TERMINATION. (a) Right to Suspend or Terminate. Either party may suspend or terminate this agreement for any reason by giving thirty (30) days' written notice. Upon receipt of such notice, CONTRACTOR shall immediately discontinue his performance under this agreement. (b) Payment. Upon such suspension or termination, CONTRACTOR shall be paid for all services actually rendered to CITY to the date of such suspension or termination; provided, however, if this agreement is suspended or terminated for fault of CONTRACTOR, CITY shall be obligated to compensate CONTRACTOR only for that portion of CONTRACTOR'S services which are of benefit to CITY. (c) Return of Materials. Upon such suspension or termination, CONTRACTOR shall turn over to the City Manager immediately any and all copies of studies, sketches, drawings, conputations, and other data, whether or not completed, prepared by CONTRACTOR or its subcontractors, if any, or given to CONTRACTOR or its subcontractors, if any, in connection with this agreement. Such materials shall become the permanent property of CITY. CONTRACTOR, however, shall not be liable for CITY's use of incomplete materials or for CITY's use of complete documents if used for other than the project contemplated by this agreement. 10. INSPECTION. CONTRACTOR shall furnish CITY with every reasonable opportunity for CITY to ascertain that the services of CONTRACTOR are being performed in accordance with the requirements and intentions of this agreement. All work done and all materials furnished, if any, shall be subject to the PROJECT MANAGER's inspection and approval. The inspection of such work shall not relieve CONTRACTOR of any of its obligations to fulfill its agreement as prescribed. -4- 11. INDEPENDENT JUDGMENT. Failure of CITY to agree with CONTRACTOR's independent findings, conclusions, or recommendations, if the same are called for under this agreement, on the basis of difference in matters of judgment shall not be construed as a failure on the part of CONTRACTOR to meet the requirements of this agreement. 12. ASSIGMMENT; SUBCONTRACTORS; EMPLOYEES. (a) Assignment. Both parties shall give their personal attention to the faithful performance of this agreement and shall not assign, transfer, convey, or otherwise dispose of this agreement or any right, title, or interest in or to the same or any part thereof without the prior written consent of the other party, and then only subject to such terms and conditions as the other party may require. A consent to one assignment shall not be deemed to be a consent to any subsequent assignment. Any assignment without such approval shall be void and, at the option of the other party, shall terminate this agreement and any license or privilege granted herein. This agreement and any interest herein shall not be assignable by operation of law without the prior written consent of the other party. (b) Subcontractors; Employees. CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR hereunder. No subcontractor of CONTRACTOR will be recognized by CITY as such; rather, all subcontractors are deemed to be employees of CONTRACTOR, and it agrees to be responsible for their performance. CONTRACTOR shall give its personal attention to the fulfillment of the provisions of this agreement by all of its employees and subcontractors, if any, and shall keep the work under its control. If any employee or subcontractor of OONTRACIOR fails or refuses to carry out the provisions of this agreement or appears to be incompetent or to act in a disorderly or improper manner, he shall be discharged immediately from the work under this agreement on demand of the PROJECT MANAGER. 13. NOTICES. All notices hereunder shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: TO CITY: Office of the City Clerk P. O. Box 580 Cupertino, CA 95014-0580 TO CONTRACTOR: Attention of the PROJECT DIRECTOR at the address of CONTRACTOR recited above. -5- 14. INTEREST OF CONTRACTOR. CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. CONTRACTOR further covenants that, in the performance of this agreement, no subcontractor or person having such an interest shall be employed. CONTRACTOR certifies that no one who has or will have any financial interest under this agreement is an officer or employee of CITY. It is expressly agreed that, in the performance of the services hereunder, CONTRACTOR shall at all times be deemed an independent contractor and not an agent or employee of CITY. 15. INDEMNITY. CONTRACTOR hereby agrees to indemnify and save harmless CITY, its officers, agents, and employees of and from: (a) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of any person or damage suffered or sustained by any person or corporation caused by, or alleged to have been caused by, any act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this agreement or of CONTRACTOR's or any subcontractor's employees or agents; (b) Any and all damage to or destruction of the property of CITY, its officers, agents, or employees occupied or used by or in the care, custody, or control of CONTRACTOR, or in proximity to the site of CONTRACTOR's work, caused by any act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this agreement or of CONTRACTOR's or any subcontractor's employees or agents. (c) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of or damage suffered or sustained by any employee or agent of CONTRACTOR or any subcontractor under this agreement, however caused, excepting, however, any such claims and demands which are the result of the sole negligence or willful misconduct of CITY, its officers, agents, or employees; (d) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any infringement or alleged infringement of any patent rights or claims caused or alleged to have been caused by the sue of any apparatus, appliance, or materials furnished by CONTRACTOR or any subcontractor under this agreement; and cm (e) Any and all penalties imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any permit. CONTRACTOR, at its own cost, expense, and risk, shall defend any and all suits, actions, or other legal proceedings that may be brought or instituted by third persons against CITY, its officers, agents, or employees on any of the above claims or demands of such third persons, or to enforce any of the above penalties, and pay and satisfy any judgment or decree that may be rendered against CITY, its officers, agents, or employees in any such suit, action, or other legal proceedings. 16. WOR=' COMPENSATION. CONTRACTOR certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it certifies that it will comply with such provisions before commencing the performance of the work of this agreement. 17. INSURANCE. CONTRACTOR, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire term of this agreement the insurance coverage of at least a "B" rating as determined in accordance with the insurance industry standard, insuring not only CONTRACTOR, but also (with the exception of workers' compensation and employer's liability insurance), CITY, its officers, agents, and employees, and each of them with respect to activities and services performed by CONTRACTOR for or on behalf of CITY under the provisions of this agreement. Certificates of such insurance, preferably on the forms provided by CITY, shall be filed with CITY concurrently with the execution of this agreement or, with CITY's approval, within ten (10) days thereafter. Said certificates shall be subject to the approval of the City Attorney and shall contain an endorsement stating that said insurance is primary coverage and will not be cancelled or altered by the insurer except after filing with the City Clerk thirty (30) days' written notice of such cancellation or alteration, and that the City of Cupertino is named as an additional insured. Current certificates of such insurance shall be kept on file at all times during the term of this agreement with the City Clerk. 18. AGREEMENT BINDING. The terms, covenants, and conditions of this agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and subcontractors of both parties. -7- 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant, or condition of this agreement or any provision, ordinance, or law shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, or law or of any subsequent breach or violation of the same or of any other term, covenant, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement or of any applicable law or ordinance. 20. COSTS AND ATTORNEYS FEES. The prevailing party in any action brought to enforce the terms of this agreement or arising out of this agreement may recover its reasonable costs and attorneys' fees expended in connection with such an action from the other party. 21. NONDISCRIIMINATION. No discrimination shall be made in the employment of persons under this agreement because of the race, color, national origin, ancestry, religion or sex of such person. If the value of this agreement is, or may be, Five Thousand Dollars ($5,000) or more, CONTRACTOR agrees to meet all requirements of the Cupertino Municipal Code pertaining to nondiscrimination in employment and to complete and submit the "Compliance Report --Nondiscrimination Provisions of City of Cupertino Contracts" on the form furnished by CITY. If CONTRACTOR is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of federal law or executive order in the performance of this agreement, it shall thereby be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in part, or to deduct from the amount payable to CONTRACTOR the sum of Twenty-five Dollars ($25) for each person for each calendar day during which said person was discriminated against, as damages for said breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer shall constitute evidence of a violation of contract under this paragraph. If CONTRACTOR is found in violation of the nondiscrimination provisions of this agreement or the applicable affirmative action guidelines pertaining to this agreement, CONTRACTOR shall be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in part, or to deduct from the amount payable to CONTRACTOR the sum of Two Hundred Fifty Dollars ($250) for each calendar day during which CONTRACTOR is found to have been in such noncompliance as damages for said breach of contract, or both. 22. AGREEMENT CONTAINS ALL UNDERSTANDINGS. This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, or agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and CONTRACTOR. All provisions of this agreement are expressly made conditions. This agreement shall be governed by the laws of the State of California. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this agreement the day and year first above written. ATTEST: City Clerk j n City Attorney Name A", ; v. e W v, S 14 Address '33ro Szo-4 e- !. L-5 Telephone -/2-7 _ GGGS CITY OF CUPERTINO 0IUf *zz -ri Social Security number r Tax I. D. number 4- -- Z/ l.0 prG6 KIER 4 WRIGHT December 4, 1991 Civil Engineers 4 Surveyors, Inc. Mr. Steve Dowling Director of Parks & Recreation City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 RE: Black Berry Farms Recreation Center Dear Steve: As you requested, we are pleased to offer this revised proposal for the preparation of a site topographic survey and plans and specifications as outlined below for the renovation of the existing picnic areas adjacent to Stevens Creek at the City's Black Berry Farms Recreation Center. The existing picnic areas consist of various sinks, bar- becues and electrical lighting that do not meet current code. The scope of our services is to upgrade the water, sanitary sewer, electrical and extension of gas service to replace the existing propane gas used at the gas barbecues in the six different picnic areas adjacent to Stevens Creek. Also included in the scope of services is the connection to the city's newly installed domestic water system as a backup to the well system that is presently being used, the instal- lation of a grease trap at the snack bar and a grease trap and new sewer line bypass for the restaurant and clubhouse building located on Stevens Creek Boulevard. Also included is the general undergrounding and rewiring of the services to the existing restrooms, snack bar, pool equipment and restrooms for the pool complex. In making a site visit with Dave Arrigoni, the electrical engineer whom we propose to use as a subconsultant for the electrical portion of this project, he observed many code violations in and about the areas of our proposed services. In doing a field reconnaissance with the city staff, we would like to point out these violations even though they are probably not to be included within the scope of the services as proposed. Also included within the scope of this proposal is the preparation of bidding documents and review of shop drawings and periodic construction review with permit inspection being provided by city forces. 3350 Scott Boulevard, Building 22 • Santa Clara, California 95054 • (408) 727-6665 • FAX (408) 727-5641 Mr. Steve Dowling December 4, 1991 Page Two The following are the fees for the services proposed above. 1. Preparation of a site topographic survey locating all the existing trees, power poles, permanent picnic tables, barbecues, shacks, and sinks within the picnic areas. Fixed Fee 8,000.00 2. Design fee for preparation of plans and specs as outlined above. Not to Exceed 29,000.00 I am enclosing a copy of our current hourly rate schedule for use with the Not to Exceed portion of the project design. If you have any questions regarding any of the above, please give me a call. I would be glad to meet with you to discuss this proposal at any time. Sincerely, KIER & WRIGHT Richard T. Kier RTK/ljm KIER' Civil Engineers WRIGHT Surveyors, Inc. HOURLY RATE SCHEDULE Effective July 16, 1991 through July 15, 1992 PRINCIPAL ENGINEER $ 92.00/Hour SENIOR ENGINEER 85.00/Hour OFFICE ENGINEER 74.00/Hour ENGINEERING TECH 63.00/Hour SENIOR DRAFTSMAN 49.00/Hour DRAFTSMAN 44.00/Hour SURVEY COORDINATOR 71.00/Hour 2 -MAN SURVEY CREW 140.00/Hour 3 -MAN SURVEY CREW 173.00/Hour All blueprinting and reproduction will be billed at cost plus 100 3350 Scott Boulevard, Building 22 • Santa Clara, California 95054 9 (408) 727-6665 • FAX (408) 727-5641 ACCOUNT NO. 620-9105-@aS 953 CONTRACT AMOUNT -Not to Exceed $24,500 PURCHASE ORDER NO. 2S V 9 a- 210 THIS AGREEMENT, made and entered into this 20 day of November , 1992, by and between the CITY OF CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY", and KIER & WRIGHT, a civil engineer firm with offices at 3350 Scott Boulevard, Bldg. 22, Santa Clara, CA 95054, hereinafter referred to as "CONTRACTOR"; WITNESSETH: WHEREAS, CITY desires to retain services in conjunction with a site survey and plans and specifications for Blackberry Farm; and WHEREAS, CITY desires to engage CONTRACTOR to provide these services by reason of its qualifications and experience for performing such services, and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows: 1. DEFINITIONS. (a) The word "City" as used in this agreement shall mean and include all the territory lying within the municipal boundaries of the City of Cupertino, California, as presently existing, plus all territory which may be added thereto during the term of this agreement by annexation or otherwise. (b) The term "City Manager" shall mean the duly appointed City Manager of the City of Cupertino, California, or his designated representative. (c) The term "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino, California, or his designated representative. (d) The term "City Clerk" shall mean the duly appointed City Clerk of the City of Cupertino, California, or her designated. representative. -1- i iJ, J JWz 2. PROJECT COORDINATION. (a) City. The City Manager shall be representative of CITY for all purposes under this agreement. Stephen G. Dowling hereby is designated as the PROJECT MANAGER for the City Manager, and shall supervise the progress and execution of this agreement. (b) Contractor. CONTRACTOR shall assign a single PROTECT DIRECTOR to have overall responsibility for the progress and execution of this agreement for CONTRACTOR. Richard T. Kier hereby is designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this agreement require a substitute PROJECT DIRECTOR for any reason, the PROJECT DIRECTOR designee shall be subject to the prior written acceptance and approval of the PROJECT MANAGER. 3. DUTIES OF CONTRACTOR. (a) Services to be Furnished. CONTRACTOR shall provide all specified services as set forth below: (1) As directed at the City/Contractor meeting of November 10, revise the utility improvement plans for Blackberry Farm into separate phases; (2) Prepare bid documents for the utility improvements into separate phases; (3) Attend weekly construction meetings during construction. (b) Laws to be Observed. CONTRACTOR shall: (1) Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the services to be performed by CONTRACTOR under this agreement; (2) Keep itself fully informed of all existing and future federal, state, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this agreement, any materials used in CONTRACTOR's performance under this agreement, or the conduct of the services under this agreement; -2- (3) At all times observe and comply with, and cause all of its subcontractors and employees, if any, to observe and comply with, all of said laws, ordinances, regulations, orders, and decrees mentioned above; (4) Immediately report to the PROJECT MANAGER in writing any discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawing, specifications, or provisions of this agreement. (c) Release of Reports and Information. Any reports, information, data, or other material given to, or prepared or assembled by, CONTRACTOR or its subcontractors, if any, under this agreement shall be the property of CITY and shall not be made available to any individual or organization by CONTRACTOR or its subcontractors, if any, without the prior written approval of the City Manager. (d) Copies of Reports and Information. If CITY requests additional copies of reports, drawings, specifications or any other material which CONTRACTOR is required to furnish in limited quantities as part of the services under this agreement, CONTRACTOR shall provide such additional copies as are requested and CITY shall compensate CONTRACTOR for the costs of duplicating of such copies at CONTRACTOR'S cost. (e) Final Report. CONTRACTOR shall provide CITY with topographic survey, plans and specs (three) copies of the final report required under this agreement upon completion and acceptance of the report by CITY. (f) Qualifications of Contractor. CONTRACTOR represents that it is qualified to furnish the services described under this agreement. As evidence thereof, CONTRACTOR warrants that one or more members or employees of the firm are licensed by the State of California and that the services to be provided under this agreement will be performed by them or under their supervision. 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR a total sum not to exceed Twenty -Four Thousand Five Hundred Dollars ($24,500), payable by progress payments upon submission by CONTRACTOR of its itemized billings in triplicate, in accordance with the following fee schedule. 5. TERM. The services to be performed hereunder shall commence on November 20, 1992, and shall be completed by April 1, 1993. -3- 6. TEMPORARY SUSPENSION. The City Manger shall have the authority to suspend this agreement, wholly or in part, for such period as he deems necessary due to unfavorable conditions or to the failure on the part of the CONTRACTOR to perform any provision of this agreement. 7. E=SION OF TERM. In the event that the services called for under this agreement are not completed within the time specified above, the City Manager shall have the option to extend the time for completion. This paragraph does not preclude the recovery of damages for delay by either party. 8. SUSPENSION; TERMMTION. (a) Right to Suspend or Terminate. Either party may suspend or terminate this agreement for any reason by giving thirty (30) days' written notice. Upon receipt of such notice, CONTRACTOR shall immediately discontinue his performance under this agreement. (b) Payment. Upon such suspension or termination, CONTRACTOR shall be paid for all services actually rendered to CITY to the date of such suspension or termination; provided, however, if this agreement is suspended or terminated for fault of CONTRACTOR, CITY shall be obligated to compensate CONTRACTOR only for that portion of CONTRACTOR'S services which are of benefit to CITY. (c) Return of Materials. Upon such suspension or termination, CONTRACTOR shall turn over to the City Manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONTRACTOR or its subcontractors, if any, or given to CONTRACTOR or its subcontractors, if any, in connection with this agreement. Such materials shall become the permanent property of CITY. CONTRACTOR, however, shall not be liable for CITY's use of incomplete materials or for CITY's use of complete documents if used for other than the project contemplated by this agreement. 10. INSPECTION. CONTRACTOR shall furnish CITY with every reasonable opportunity for CITY to ascertain that the services of CONTRACTOR are being performed in accordance with the requirements and intentions of this agreement. All work done and all materials furnished, if any, shall be subject to the PROJECT MANAGER's inspection and approval. The inspection of such work shall not relieve CONTRACTOR of any of its obligations to fulfill its agreement as prescribed. -4- 11. INDEPENDENT JUDGMENT. Failure of CITY to agree with CONTRACTOR's independent findings, conclusions, or recommendations, if the same are called for under this agreement, on the basis of difference in matters of judgment shall not be construed as a failure on the part of CONTRACTOR to meet the requirements of this agreement. 12. ASSIGNMENT; SUBCONTRACTORS; EMPLOYEES. (a) Assignment. Both parties shall give their personal attention to the faithful performance of this agreement and shall not assign, transfer, convey, or otherwise dispose of this agreement or any right, title, or interest in or to the same or any part thereof without the prior written consent of the other party, and then only subject to such terms and conditions as the other party may require. A consent to one assignment shall not be deemed to be a consent to any subsequent assignment. Any assignment without such approval shall be void and, at the option of the other party, shall terminate this agreement and any license or privilege granted herein. This agreement and any interest herein shall not be assignable by operation of law without the prior written consent of the other party. (b) Subcontractors; Employees. CONTRACTOR shall be responsible for employing or engaging all persons necessary to Perform the services of CONTRACTOR hereunder. No subcontractor of CONTRACTOR will be recognized by CITY as such; rather, all subcontractors are deemed to be employees of CONTRACTOR, and it agrees to be responsible for their performance. CONTRACTOR shall give its personal attention to the fulfillment of the provisions of this agreement by all of its employees and subcontractors, if any, and shall keep the work under its control. If any employee or subcontractor of CONTRACTOR fails or refuses to carry out the provisions of this agreement or appears to be incompetent or to act in a disorderly or improper manner, he shall be discharged immediately from the work under this agreement on demand of the PROJECT MANAGER. 13. NOTICES. All notices hereunder shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: TO CITY: Office of the City Clerk P. O. Box 580 Cupertino, CA 95014-0580 TO CONTRACTOR: Attention of the PROJECT DIREC-I'OR at the address of CONTRACTOR recited above. -5- 14. INTEREST OF CONTRACTOR. CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. CONTRACTOR further covenants that, in the performance of this agreement, no subcontractor or person having such an interest shall be employed. CONTRACTOR certifies that no one who has or will have any financial interest under this agreement is an officer or employee of CITY. It is expressly agreed that, in the performance of the services hereunder, CONTRACTOR shall at all times be deemed an independent contractor and not an agent or employee of CITY. 15. INDEMNITY. CONTRACTOR hereby agrees to indemnify and save harmless CITY, its officers, agents, and employees of and from: (a) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of any person or damage suffered or sustained by any person or corporation caused by, or alleged to have been caused by, any act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this agreement or of CONTRACTOR's or any subcontractor's employees or agents; (b) Any and all damage to or destruction of the property of CITY, its officers, agents, or employees occupied or used by or in the care, custody, or control of CONTRACTOR, or in proximity to the site of CONTRACTOR's work, caused by any act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this agreement or of CONTRACTOR's or any subcontractor's employees or agents. (c) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of or damage suffered or sustained by any employee or agent of CONTRACTOR or any subcontractor under this agreement, however caused, excepting, however, any such claims and demands which are the result of the sole negligence or willful misconduct of CITY, its officers, agents, or employees; (d) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any infringement or alleged infringement of any patent rights or claims caused or alleged to have been caused by the sue of any apparatus, appliance, or materials furnished by CONTRACTOR or any subcontractor under this agreement; and (e) Any and all penalties imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any permit. CONTRACTOR, at its own cost, expense, and risk, shall defend any and all suits, actions, or other legal proceedings that may be brought or instituted by third persons against CITY, its officers, agents, or employees on any of the above claims or demands of such third persons, or to enforce any of the above penalties, and pay and satisfy any judgment or decree that may be rendered against CITY, its officers, agents, or employees in any such suit, action, or other legal proceedings. 16. WORKERS' COMPENSATION. CONTRACTOR certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it certifies that it will comply with such provisions before commencing the performance of the work of this agreement. 17. INSURANCE. CONTRACTOR, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire term of this agreement the insurance coverage of at least a "B" rating as determined in accordance with the insurance industry standard, insuring not only CONTRACTOR, but also (with the exception of workers' compensation and employer's liability insurance), CITY, its officers, agents, and employees, and each of them with respect to activities and services performed by CONTRACTOR for or on behalf of CITY under the provisions of this agreement. Certificates of such insurance, preferably on the forms provided by CITY, shall be filed with CITY concurrently with the execution of this agreement or, with CITY's approval, within ten (10) days thereafter. Said certificates shall be subject to the approval of the City Attorney and shall contain an endorsement stating that said insurance is primary coverage and will not be cancelled or altered by the insurer except after filing with the City Clerk thirty (30) days' written notice of such cancellation or alteration, and that the City of Cupertino is named as an additional insured. Current certificates of such insurance shall be kept on file at all times during the term of this agreement with the City Clerk. 18. AGREEMENT BINDING. The terms, covenants, and conditions of this agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and subcontractors of both parties. -7- 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant, or condition of this agreement or any provision, ordinance, or law shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, or law or of any subsequent breach or violation of the same or of any other term, covenant, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement or of any applicable law or ordinance. 20. COSTS AND ATTORNEYS FEES. The prevailing party in any action brought to enforce the terms of this agreement or arising out of this agreement may recover its reasonable costs and attorneys' fees expended in connection with such an action from the other party. 21. NONDISCRIMINATION. No discrimination shall be made in the employment of persons under this agreement because of the race, color, national origin, ancestry, religion or sex of such person. If the value of this agreement is, or may be, Five Thousand Dollars ($5,000) or more, CONTRACTOR agrees to meet all requirements of the Cupertino Municipal Code pertaining to nondiscrimination in employment and to complete and submit the "Compliance Report --Nondiscrimination Provisions of City of Cupertino Contracts" on the form furnished by CITY. If CONTRACTOR is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of federal law or executive order in the performance of this agreement, it shall thereby be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in part, or to deduct from the amount payable to CONTRACTOR the sum of Twenty-five Dollars ($25) for each person for each calendar day during which said person was discriminated against, as damages for said breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer shall constitute evidence of a violation of contract under this paragraph. If CONTRACTOR is found in violation of the nondiscrimination provisions of this agreement or the applicable affirmative action guidelines pertaining to this agreement, CONTRACTOR shall be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in part, or to deduct from the amount payable to CONTRACTOR the sum of Two Hundred Fifty Dollars ($250) for each calendar day during which CONTRACTOR is found to have been in such noncompliance as damages for said breach of contract, or both. a 22. AGREIIK= CONTAINS ALL UNDERSTANDINGS. This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, or agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and CONTRACTOR. All provisions of this agreement are expressly made conditions. This agreement shall be governed by the laws of the State of California. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this agreement the day and year first above written. ATTEST: 4� 4 "-�" City Clerk APPROVED AS TO FORM: Cf City Attorney CITY OF CUPERTINO Kier & Wright Civil Engineers & Surveyors, Inc. Name 3350 Scott Blvd., Bldg, 22, Santa Clara, CA 95054 Address 408-727-6665 Telephone 94-216-0466 Social Security number /�, �b s, or Tax I.D. n mber �L / 7 ACCIUNT NO. 620-9105-953 CONTRACT AMOUNT - Not to Exceed $16,700 PURCHASE ORDER NO. 02663 AGREEMENT THIS AGREEMENT, made and entered into this // `fit day of Oc$o be K- , M3, , by and between the CITY OF CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY", and KIER & WRIGHT, a civil engineer firm with offices at 3350 Scott Boulevard, Bldg. 22, Santa Clara, CA 95054, hereinafter referred to as "CONTRACTOR"; WITNESSETH: WHEREAS, CITY desires to retain services in conjunction with a site survey and plans and specifications for Blackberry Farm; and WHEREAS, CITY desires to engage CONTRACTOR to provide these services by reason of its qualifications and experience for performing such services, and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein; NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows: 1. DEFINITIONS. (a) The word "City" as used in this agreement shall mean and include all the territory lying within the municipal boundaries of the City of Cupertino, California, as presently existing, plus all territory which may be added thereto during the term of this agreement by annexation or otherwise. (b) The term "City Manager" shall mean the duly appointed City Manager of the City of Cupertino, California, or his designated representative. (c) The term "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino, California, or his designated representative. (d) The term "City Clerk" shall mean the duly appointed City Clerk of the City of Cupertino, California, or her designated representative. 2. PROJECT COORDINATION. (a) City. The City Manager shall be representative of CITY for all purposes under this agreement. Stephen G. Dowling, Director of Parks and Recreation, hereby is designated as the PROJECT MANAGER for the City Manager, and shall supervise the progress and execution of this agreement. (b) Contractor. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this agreement for CONTRACTOR. Mark Watson hereby is designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this agreement require a substitute PROJECT DIRECTOR for any reason, the PROJECT DIRECTOR designee shall be subject to the prior written acceptance and approval of the PROJECT MANAGER. 3. DUTIES OF CONTRACTOR. (a) Services to be Furnished. CONTRACTOR shall provide all specified services as set forth below: (1) Prepare plans and specifications for the work outlined above (excluding the pool work). (2) Prepare bid documents for the electrical work. (3) Prepare bid documents for the non -electrical work. (4) Attend design meetings, pre-bid meetings, pre -construction meetings and weekly construction administration meetings. (b) Laws to be Observed. CONTRACTOR shall: (1) Procure all permits and licenses, pay all charges and fees, and give all notices which may be necessary and incident to the due and lawful prosecution of the services to be performed by CONTRACTOR under this agreement; (2) Keep itself fully informed of all existing and future federal, state, and local laws, ordinances, regulations, orders, and decrees which may affect those engaged or employed under this agreement, any materials used in CONTRACTOR's performance under this agreement, or the conduct of the services under this agreement; 2 (3) At all times observe and comply with, and cause all of its subcontractors and employees, if any, to observe and comply with, all of said laws, ordinances, regulations, orders, and decrees mentioned above; (4) Immediately report to the PROJECT MANAGER in writing any discrepancy or inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawing, specifications, or provisions of this agreement. (c) Release of Reports and Information. Any reports, information, data, or other material given to, or prepared or assembled by, CONTRACTOR or its subcontractors, if any, under this agreement shall be the property of CITY and shall not be made available to any individual or organization by CONTRACTOR or its subcontractors, if any, without the prior written approval of the City Manager. (d) Copies of Reports and Information. If CITY requests additional copies of reports, drawings, specifications or any other material which CONTRACTOR is required to furnish in limited quantities as part of the services under this agreement, CONTRACTOR shall provide such additional copies as are requested and CITY shall compensate CONTRACTOR for the costs of duplicating of such copies at CONTRACTOR'S cost. (e) Final Report. CONTRACTOR shall provide CITY with topographic survey, plans and specs (three) copies of the final report required under this agreement upon completion and acceptance of the report by CITY. (f) Qualifications of Contractor. CONTRACTOR represents that it is qualified to furnish the services described under this agreement. As evidence thereof, CONTRACTOR warrants that one or more members or employees of the firm are licensed by the State of California and that the services to be provided under this agreement will be performed by them or under their supervision. 4. COMPENSATION. For the performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR a total sum not to exceed Sixteen Thousand Seven Hundred Dollars ($16,700), payable by progress payments upon submission by CONTRACTOR of itemized billings in triplicate; in accordance with the following fee schedule. 3 5. TERM. The services to be performed hereunder shall commence on November 1, 1993, and shall be completed by April 1, 1994. 6. TEMPORARY SUSPENSION. The City Manger shall have the authority to suspend this agreement, wholly or in part, for such period as he deems necessary due to unfavorable conditions or to the failure on the part of the CONTRACTOR to perform any provision of this agreement. 7. EXTENSION OF TERM. In the event that the services called for under this agreement are not completed within the time specified above, the City Manager shall have the option to extend the time for completion. This paragraph does not preclude the recovery of damages for delay by either party. 8. SUSPENSION; TERMINATION. (a) Right to Suspend or Terminate. Either party may suspend or terminate this agreement for any reason by giving thirty (30) days' written notice. Upon receipt of such notice, CONTRACTOR shall immediately discontinue his performance under this agreement. (b) Pam. Upon such suspension or termination, CONTRACTOR shall be paid for all services actually rendered to CITY to the date of such suspension or termination; provided, however, if this agreement is suspended or terminated for fault of CONTRACTOR, CITY shall be obligated to compensate CONTRACTOR only for that portion of CONTRACTOR'S services which are of benefit to CITY. (c) Return of Materials. Upon such suspension or termination, CONTRACTOR shall turn over to the City Manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or not completed, prepared by CONTRACTOR or its subcontractors, if any, or given to CONTRACTOR or its subcontractors, if any, in connection with this agreement. Such materials shall become the permanent property of CITY. CONTRACTOR, however, shall not be liable for CITY's use of incomplete materials or for CITY's use of complete documents if used for other than the project contemplated by this agreement. 4 9. INSPECTION. CONTRACTOR shall furnish CITY with every reasonable opportunity for CITY to ascertain that the services of CONTRACTOR are being performed in accordance with the requirements and intentions of this agreement. All work done and all materials furnished, if any, shall be subject to the PROJECT MANAGER's inspection and approval. The inspection of such work shall not relieve CONTRACTOR of any of its obligations to fulfill its agreement as prescribed. 10. INDEPENDENT JUDGMENT. Failure of CITY to agree with CONTRACTOR's independent findings, conclusions, or recommendations, if the same are called for under this agreement, on the basis of difference in matters of judgment shall not be construed as a failure on the part of CONTRACTOR to meet the requirements of this agreement. 11. ASSIGNMENT; SUBCONTRACTORS; EMPLOYEES. (a) Assignment. Both parties shall give their personal attention to the faithful performance of this agreement and shall not assign, transfer, convey, or otherwise dispose of this agreement or any right, title, or interest in or to the same or any part thereof without the prior written consent of the other party, and then only subject to such terms and conditions as the other party may require. A consent to one assignment shall not be deemed to be a consent to any subsequent assignment. Any assignment without such approval shall be void and, at the option of the other party, shall terminate this agreement and any license or privilege granted herein. This agreement and any interest herein shall not be assignable by operation of law without the prior written consent of the other party. (b) Subcontractors; Employees. CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR hereunder. No subcontractor of CONTRACTOR will be recognized by CITY as such; rather, all subcontractors are deemed to be employees of CONTRACTOR, and it agrees to be responsible for their performance. CONTRACTOR shall give its personal attention to the fulfillment of the provisions of this agreement by all of its employees and subcontractors, if any, and shall keep the work under its control. If any employee or subcontractor of CONTRACTOR fails or refuses to carry out the provisions of this agreement or appears to be incompetent or to act in a disorderly or improper manner, he shall be discharged immediately from the work under this agreement on demand of the PROJECT MANAGER. 5 12. NOTICES. All notices hereunder shall be given in writing and mailed, postage prepaid, by certified mail, addressed as follows: TO CITY: Office of the City Clerk 10300 Torre Avenue Cupertino, CA 95014 TO CONTRACTOR: Attention of the PROJECT DIRECTOR at the address of CONTRACTOR recited above. 13. INTEREST OF CONTRACTOR. CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. CONTRACTOR further covenants that, in the performance of this agreement, no subcontractor or person having such an interest shall be employed. CONTRACTOR certifies that no one who has or will have any financial interest under this agreement is an officer or employee of CITY. It is expressly agreed that, in the performance of the services hereunder, CONTRACTOR shall at all times be deemed an independent contractor and not an agent or employee of CITY. 14. INDEMNITY. CONTRACTOR hereby agrees to indemnify and save harmless CITY, its officers, agents, and employees of and from: (a) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of any person or damage suffered or sustained by any person or corporation caused by, or alleged to have been caused by, any act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this agreement or of CONTRACTOR's or any subcontractor's employees or agents; (b) Any and all damage to or destruction of the property of CITY, its officers, agents, or employees occupied or used by or in the care, custody, or control of CONTRACTOR, or in proximity to the site of CONTRACTOR's work, caused by any act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this agreement or of CONTRACTOR's or any subcontractor's employees or agents. (c) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any injury to or death of or damage suffered or sustained by any employee or agent of CONTRACTOR or any subcontractor under this agreement, however caused, excepting, however, any such claims and demands which are the result of the sole negligence or willful misconduct of CITY, its officers, agents, or employees; (d) Any and all claims and demands which may be made against CITY, its officers, agents, or employees by reason of any infringement or alleged infringement of any patent rights or claims caused or alleged to have been caused by the sue of any apparatus, appliance, or materials furnished by CONTRACTOR or any subcontractor under this agreement; and (e) Any and all penalties imposed or damages sought on account of the violation of any law or regulation or of any term or condition of any permit. CONTRACTOR, at its own cost, expense, and risk, shall defend any and all suits, actions, or other legal proceedings that may be brought or instituted by third persons against CITY, its officers, agents, or employees on any of the above claims or demands of such third persons, or to enforce any of the above penalties, and pay and satisfy any judgment or decree that may be rendered against CITY, its officers, agents, or employees in any such suit, action, or other legal proceedings. 15. WORKERS' COMPENSATION. CONTRACTOR certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it certifies that it will comply with such provisions before commencing the performance of the work of this agreement. 16. INSURANCE. CONTRACTOR, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire term of this agreement the insurance coverage of at least a "B" rating as determined in accordance with the insurance industry standard, insuring not only CONTRACTOR, but also (with the exception of workers' compensation and employer's liability insurance), CITY, its officers, agents, and employees, and each of them with respect to activities and services performed by CONTRACTOR for or on behalf of CITY under the provisions of this agreement. Certificates of such insurance, preferably on the forms provided by CITY, shall be filed with CITY concurrently with the execution of this agreement or, with CITY's approval, within ten (10) days thereafter. Said certificates shall be subject to the approval of the City Attorney and shall contain an endorsement stating that said insurance is primary coverage and will not be cancelled or altered by the insurer except after filing with the City Clerk thirty (30) days' written notice of such cancellation or alteration, and that the City of Cupertino is named as an additional insured. Current certificates of such insurance shall be kept on file at all times during the term of this agreement with the City Clerk. 17. AGREEMENT BINDING. The terms, covenants, and conditions of this agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and subcontractors of both parties. 18. WAIVERS. The waiver by either party of any breach or violation of any term, covenant, or condition of this agreement or any provision, ordinance, or law shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, or law or of any subsequent breach or violation of the same or of any other term, covenant, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this agreement or of any applicable law or ordinance. 19. COSTS AND ATTORNEYS FEES. The prevailing party in any action brought to enforce the terms of this agreement or arising out of this agreement may recover its reasonable costs and attorneys' fees expended in connection with such an action from the other party. 20. NONDISCRIMINATION. No discrimination shall be made in the employment of persons under this agreement because of the race, color, national origin, ancestry, religion or sex of such person. If the value of this agreement is, or may be, Five Thousand Dollars ($5,000) or more, CONTRACTOR agrees to meet all requirements of the Cupertino Municipal Code pertaining to nondiscrimination in employment and to complete and submit the "Compliance Report --Nondiscrimination Provisions of City of Cupertino Contracts" on the form furnished by CITY. If CONTRACTOR is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of federal law or executive order in the performance of this agreement, it shall thereby be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in part, or to deduct from the amount payable to CONTRACTOR the sum of Twenty-five Dollars ($25) for each person for each calendar day during which said person was discriminated against, as damages for said breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer shall constitute evidence of a violation of contract under this paragraph. If CONTRACTOR is found in violation of the nondiscrimination provisions of this agreement or the applicable affirmative action guidelines pertaining to this agreement, CONTRACTOR shall be found in material breach of this agreement. Thereupon, CITY shall have the power to cancel or suspend this agreement, in whole or in part, or to deduct from the amount payable to CONTRACTOR the sum of Two Hundred Fifty Dollars ($250) for each calendar day during which CONTRACTOR is found to have been in such noncompliance as damages for said breach of contract, or both. 8 21. AGREEMENT CONTAINS ALL UNDERSTANDINGS. This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, or agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and CONTRACTOR. All provisions of this agreement are expressly made conditions. This agreement shall be governed by the laws of the State of California. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this agreement the day and year first above written. ATTEST City Clerk APPROVED AS TO FORM: Z""" 'i z -,z City Attorney CITY OF CUPERTINO Mayor, City of Cupertino Kier & Wright Civil Engineers & Surveyors, Inc. 3350 Scott Blvd., Bldjz. 22, Santa Clara, CA 95054 Address 408-727-6665 Telephone 94-216-0466 Social Security number or Tax I.D. number D