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20-020 Independent Code Consultants, Inc., Building and Public Works Plan Review Services for the Vallco Town Center SB35 Project CITY OF DESIGN PROFESSIONAL SERVICES AGREEMENT(SINGLE) WITH INDEPENDENT CODE CONSULTANTS,INC. CUPERTINO 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation("City"), and Independent Code Consultants, Inc. ("Consultant"), a Corporation for Building and Public Works plan review services for the Vallco Town Center SB35 project("Project"), and is effective on the last date signed below ("Effective Date"). i 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 Term.This Agreement begins on the Effective Date and ends on June 30,2023,unless. terminated earlier as provided herein("Contract Time"). The City's appropriate department head or City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City's purchasing policy. 3.2 Schedule of Performance. Consultant must deliver the services in accordance with the schedule specified by the City for each task. Consultant must promptly notify City of any actual or potential delay in providing the Services as scheduled to afford the Parties adequate opportunity to address or mitigate delays. Consultant must begin work on each separate task upon receiving City's Notice to Proceed("NTP"), and must complete each task within the time specified in Exhibit B. 3.3 Time is of the essence for the performance of all the Services. Consultant must havesufficient 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 work but that will be capped so as not to exceed $13,500,000 ("Contract Price"), based upon the scope of services in Exhibit A and the budget, rates, and compensation schedule included in Exhibit B, 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. Invoices must be submitted in accordance with the compensation schedule and state a description of the deliverable completed, the individual performing the work, and the amount due for the preceding period. 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. Page 1 of 10 Design Professsional Agr(Single)/Rev Oct. 2019 5. INDEPENDENT CONTRACTOR i I 5.1 Status. Consultant is an independent Consultant and not an employee,partner, or joint venture of the City. Consultant is solely responsible for the means and methods of performing the Services and shall exercise full control over the employment, direction, compensation and discharge of all persons assisting Consultant in performing the Services. Consultant is not entitled to health benefits, worker's compensation,retirement, or any City benefit. 5.2 Qualifications and Standard of Care. Consultant represents on behalf of itself and its sub- Consultants that they have the qualifications and skills to perform the Services in a competent and j professional manner, as exercised by design professionals performing similar services in the San Francisco Bay Area. Services may only be performed by qualified and experienced personnel or subconsultants who are not employed by City and do not have any contractual relationship with City I excepting this Agreement. All Services must be performed as specified to City's reasonable satisfaction. 5.3 Permits and Licenses. Consultant warrants on behalf of itself and any sub-Consultants that they are properly licensed, registered, and/or certified to perform the Services, as required by law,and that they have procured a valid City Business License, if required by the Cupertino Municipal Code. 5.4 Sub-Consultants. Unless prior written approval from City is obtained, only Consultant's employees and sub-Consultants whose names are included in this Agreement and incorporated Exhibits may provide Services under this Agreement. Consultant must require all sub-Consultants to furnish proof of insurance for workers' compensation, commercial liability, auto, and professional liability in reasonable conformity to the insurance required of Consultant. The terms and conditions of this Agreement shall be binding on all sub-Consultants relative to the portion of theirwork. 5.5 Tools,Materials, and Equipment. Consultant will supply and shall be responsible for all tools, materials, and equipment required to perform the Services under this Agreement. 5.6 Payment of Benefits and Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Consultant and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority,vacation time, vacation pay, sick leave,personal time off, overtime, health insurance,medical care,hospital care, insurance benefits, social security, disability, unemployment,workers compensation or employee benefits of any kind. Consultant shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Consultant's business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Consultant. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System(PERS),the Internal Revenue Service or the State Employment Development Division, determine that Consultant, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Consultant agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City as a result of such determination, so that the City's total expenses under this Agreement are not greater than they would have been had the determination not been made. This Section 5.6 survives the expiration/termination of this Agreement. 1 1 i 5.7 Errors and Omissions. Consultant is solely responsible for its errors and omissions and ' those of its sub-Consultants, and must take prompt measures to avoid, mitigate, and correct them at its sole expense. 6. PROPRIETARY/CONFIDENTIAL INFORMATION During the Contract Time, Consultant may have access to private or confidential information owned a or controlled by the City, which may contain proprietary or confidential details, the disclosure of which to third parties may be damaging to City. Consultant shall hold in confidence all City information and use it only to perform this Agreement. Consultant shall exercise the same standard of care to protect City information as a reasonably prudent Consultant would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Any interest(including copyright interests)of Consultant in,and copies of 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 shall be provided to the City every six months and upon completion of the work to be performed hereunder or upon termination of this Agreement, as requested by City, and thereupon shall be the exclusive property of the City. In any case,no Work Product shall be shown to any third-party without prior written approval of City and all communications with third parties shall copy City staff. 7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all copyrights to the Work Product prepared/created by Consultant and its sub-Consultants and all copyrights in such Work Product shall constitute City property. If it is determined under federal law that the Work Product is not "works for hire," Consultant hereby assigns to City all copyrights to the Work Product when and as created, and shall require sub-Consultants to do the same. Consultant may retain copyrights to its standard details, but hereby grants City a perpetual, non-exclusive license to use such details. 73 Patents and Licenses. Consultant 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 thisAgreement. 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 Consultant and its sub-Consultants to execute or implement any of the following,but Consultant shall not be responsible or liable for City's re-use of Work Product: (a) For work related to the original Services for which Consultant was hired; (b) To complete the original Services with City personnel, agents or other Consultants; (c) To make subsequent additions to the original Services;and/or (d) For other City projects. 7.5 Deliverables and Format. Electronic and hard copies of the Work Product constitute part of the Deliverables required under this Agreement, which shall be provided to City on recycled paper and copied on both sides, except for one single-sided original. Large-scale architectural plans and similar items must be in CAD and PDF formats, and unless otherwise specified, other documents must be in Microsoft Office applications and PDF formats. 8. RECORDS 8.1 Consultant must maintain complete, accurate, and detailed accounting records relating to the Services and Compensation, in accordance with generally accepted accounting principles and procedures. The records must include detailed information about Consultant's performance, benchmarks, and deliverables. The records and supporting documents must be kept separate from other files and maintained for a period of four(4)years from the date of City's final payment. 8.2 Consultant will provide City full access to Consultant's books and records for review and 1 audit,to make transcripts or copies, and to conduct a preliminary examination of all the work, data, documents, proceedings, and activities related to this Agreement. If a supplemental examination or audit of Consultant's records discloses non-compliance with appropriate internal financial controls, a contract breach, or a failure to act in good faith, City will be entitled to recover from Consultant the costs of the supplemental examination or audit. If this is a lump sum fee Agreement, City will be provided access to records of reimbursable expenses and the instruments of service/deliverables for review and audit. This Section 8 survives the expiration/termination of this Agreement. 9. ASSIGNMENT Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly,by operation of law or otherwise, without prior 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 Consultant as a legal entity will be considered an Assignment subject to City approval, which shall not be unreasonably withheld. For purposes of this provision, control means fifty percent(50%) or more of the voting power of the business entity. This Agreement binds Consultant,its heirs, successors and assignees. 10. PUBLICITY/SIGNS Any publicity generated by Consultant for the project under this Agreement, during the term of this Agreement and for one (1)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 Agreement, without prior written approval from the City. 11. INDEMNIFICATION 1 11.1 To the fullest extent allowed by law and except for losses caused by the sole or active negligence or willful misconduct of City personnel, Consultant agrees to indemnify, defend, and hold harmless the City as follows: a. Indemnity for Design Professional Liability: With respect to the performance of j design professional services by a design professional as defined in California Civil Code Section 2782.8,to the fullest extent permitted by law, Consultant shall indemnify and hold harmless City, its officers, officials, agents, employees, and volunteers (collectively and/or individually "City") from and against any and all liabilities, claims, damages, losses, costs, or expenses (including,without limitation, costs, attorneys' fees, and expert fees of litigation and alternative dispute resolution) of every nature to the extent arising out of, pertaining to, or relating to the negligence,recklessness,or willful misconduct of Consultant or any of its officers, employees, servants, agents, or subcontractors (collectively and/or individually "Consultant"), in the performance of this Agreement or failure to comply with any obligations of the Agreement. If it is finally determined(through a non-appealable judgment or an agreement between City and Consultant)that liability is caused by the comparative negligence or willful misconduct of City,then Consultant's indemnification and hold harmless obligation shall not exceed Consultant's finally determined percentage of liability based upon the comparative fault of Consultant. Irrespective of any language to the contrary in this Agreement, the Consultant has no duty to provide or to immediately pay for an up-front defense of City against unproven claims or allegations,but shall reimburse those litigation costs and expenses (including, without limitation, attorneys' fees, and expert fees) incurred by the City to the extent caused by the negligence,recklessness,or willful misconduct of Consultant. In no event shall the cost to defend charged to Consultant exceed Consultant's proportional percentage of fault, except as described in Section 2782.8(a) and(e) of the California Civil Code. b. Claims Involving Intellectual Property. Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any claim involving intellectual property, infringement, or violation of a United States patent right or copyright,trade secret,trademark, or service mark or other proprietary or intellectual property rights, which arises out of,pertains to, or relates to Consultant's negligence, recklessness, or willful misconduct. Such costs and expenses will include reasonable attorney fees for legal counsel of City's choice, expert fees, and all other costs and fees of litigation. C. Claims for Other Liability. Except as provided in subsections 11.1(a) and (b), to the fullest extent permitted by law, Consultant shall hold harmless, defend(with counsel agreed to by City), and indemnify City and its officers, officials, agents, employees, and volunteers (collectively and/or individually "City") from and against any and all liability, claim, loss, damage, expense, costs (including, without limitation, costs, attorneys' fees, and expert fees of litigation) of every nature arising out of, related to, or in connection with the performance of work hereunder by Consultant or any of its officers, employees, servants, agents, or subcontractors, or the failure of the same to comply with any of the obligations contained in this Agreement, except such loss or damage which was caused by the sole negligence or sole willful misconduct of the City. Consultant's duty to defend applies immediately, whether or not liability is established. An allegation or determination that persons other than Contractor are responsible for the claim does not relieve Contractor from its separate and distinct obligation to defend as stated herein. 11.2 Consultant will assist City, at no additional cost, in the defense of any claim, dispute, or lawsuit arising out of this Agreement. Consultant's duties herein are not limited to or subject to the Contract Price,to Workers' Compensation claims, or to the Insurance or Bond limits and provisions. Nothing in this Agreement shall be construed to give rise to an implied right of indemnity in favor of 1 Consultant against any Indemnitee. 11.3 Consultant agrees to pay the reasonable costs City may incur in enforcing this provisionrelated to Consultant's indemnification duties, including reasonable attorney fees, fees for legal counsel acceptable to City, expert fees, and all other costs and expenses related to a claim or counterclaim, a purchase order, another transaction, litigation, or dispute resolution. Without waiving any rights, City may deduct money from Consultant's payments to cover moneys due to City. 11.4 Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Consultant in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.5 This Section 11 shall survive expiration or termination of this Agreement. 12. INSURANCE On or before the Contract Time commences, Consultant shall furnish City with proof of compliance with City Insurance Requirements, attached and incorporated here as Exhibit C. City will not execute the Agreement until Consultant has submitted and City has reasonably approved receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Alternatively, City may terminate this Agreement or in its sole discretion purchase insurance at Consultant's expense and deduct costs from payments to Consultant. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Consultant shall comply with all laws and regulations applicable to this Agreement. Consultant will promptly notify City of changes in the law or other conditions that may affect the Project or Consultant's ability to perform. Consultant is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act, or other federal or state law,rule or regulation. 13.2 Labor Laws. Consultant shall comply with all labor laws applicable to this Agreement. If the Services include a "public works" component, Consultant must comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. To the extent applicable, Consultant must comply with City's Labor Compliance Program and with state labor laws pertaining to working days, overtime,payroll records and DIR Registration and Oversight. If the Contract Price is $30,000 or more, Consultant must comply with the apprenticeship requirement in Labor Code Section 1777.5. 13.3 Discrimination Laws. Consultant 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. Consultant shall comply with all anti-discrimination laws, including Government Code Section 12900 and 11135, and Labor Code Section. 1735, 1777, and 3077.5. Consistent with City policy prohibiting it, Consultant understands that harassment and discrimination by Consultant or any of its sub-Consultants toward a job applicant, an employee, a City employee, or any other person is strictly prohibited. 'i 13.4 Conflicts of Interest. Consultant shall comply with all conflict of interest laws and regulations applicable to this Agreement and must avoid any conflict of interest. Consultant 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. Consultant may be required to file a conflict of interest form if Consultant makes certain governmental decisions or serves in a staff capacity, as provided in Section 18700 of Title 2 of the California Code of Regulations and other laws. Services may only be performed by persons who are not employed by City and who do not have any contractual relationship with City, with the exception of this Agreement. Consultant is familiar with and agrees to abide by the City's rules governing gifts to public officials and employees. 13.5 Remedies. A violation of this Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating this Agreement. City reserves all its rights and remedies under law and this Agreement, including the right to seek indemnification under Section 11. Consultant agrees to indemnify, defend, and hold City harmless from and against any loss, liability, and expenses arising from noncompliance with this Section. 14. PROJECT COORDINATION 14.1 City Project Manager. The City's Project Manager for all purposes under this Agreement will be Albert Salvador, who shall have the authority to manage this Agreement and oversee the progress j and performance of the Services. City in its sole discretion may substitute another Project Manager at any time and will advise Consultant of the new representative. 14.2 Consultant Project Manager. Subject to City's reasonable approval, Consultant's Project Manager for all purposes under this Agreement will be Abigail Obli ag cion,who shall be the single representative for Consultant with the authority to manage compliance with this Agreement and oversee the progress and performance of the Services. This includes responsibility for coordinating and scheduling the Services in accordance with City instructions, service orders, and the Schedule of Performance, and providing regular updates to the City's Project Manager on the Project status, progress, and any delays. City written approval is required prior to Consultant substituting a new Project Manager, which shall result in no additional costs to City or Projectdelays. 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project with thirty (30) calendar days written notice to Consultant. Consultant will be compensated for satisfactory Services performed through the date of abandonment and will be given reasonable time to assemble the work and close out the Services. No close out work shall be conducted without City reasonable approval of closure costs, which may not exceed ten percent(10%) of the total time expended to the date of abandonment. All charges including job closure costs will be paid in accordance with the provisions of this Agreement and within thirty (30) days of Consultant's final invoice reasonably approved by the City. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time, following reasonable written notice to Consultant at least thirty (30) calendar days prior to the termination date. Consultant will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Consultant closes out the Services and delivers all Work Product to City. All charges approved by City including job closure costs will be paid within thirty (30) days of Consultant's final invoice. 17. GOVERNING LAW,VENUE. AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California, excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Consultant must comply with the claims filing requirements under the Government Code prior to filing a civil action in court against City. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement(or the successors of those authorities). If a dispute arises, Consultant must continue to provide the Services pending resolution 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. This Section 18 survives the expiration/termination of this Agreement. 19. THIRD PARTY BENEFICIARIES There are no intended third parry 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 any breach shall not be deemed to constitute waiver of another term, provision, covenant, or condition or a subsequent breach, whether of the same or a different character 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of the Parties, of every kind or nature, and supersedes any and all other agreements and understandings, either oral or written, between them. 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 any term, clause, or provision of this main Agreement and any term, clause, or provision of the attachments or exhibits thereto,the terms of the main Agreement shall prevail and be controlling. 22. INSERTED PROVISIONS Each contractual provision or clause that may be required by law is deemed to be included and will be inferred in this Agreement. Either parry may request an amendment to cure any mistaken insertion or omission of a required provision. 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. i 24. SEVERABILITY/PARTIAL 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. 25. SURVIVAL All provisions which by their nature must continue after the Agreement ends, including without limitation those referenced in specific Sections herein, survive this Agreement and shall remain in full force and effect. 26. NOTICES All notices, requests, and approvals must be sent to the persons below in writing to the persons below, and will be considered effective on the date of personal delivery, the delivery 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: To Consultant: 10300 Torre Avenue Independent Code Consultants, Inc Cupertino, CA 95014 6280 W. Las Positas Blvd., Suite 220 Pleasanton, CA 94588 Attention: Albert Salvador Attention: Abigail Obligacion Email: alberts@cupertino.org Email: aobligacion@independentcodeconsultants.com 27. VALIDITY OF CONTRACT This Agreement is valid and enforceable only if it complies with the contract provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, is signed by the City Manager or authorized designee, and is approved for form by the City Attorney's Office. 28. EXECUTION The person executing this Agreement on behalf of Consultant represents and warrants that Consultant has the right, power, and authority to enter into this Agreement and carry out all actions herein, and j that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Consultant. 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 WITNESS WHEREOF,the parties have caused the Agreement to be executed on the Effective Date stated earlier in this Agreement. CITY OF CUPERTINO A Municipal Corporation BY � ,...' BY Name L6�+i t C7 i�, c r o� Name—P��- - G�Lr Title Title Date r 2� ?� Date 2 2c>,202 Tax I.D.No.: 3�" -r 8'4 t� �S APPROVED AS TO FORM: HEATHER M. MINNER Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk DATE: 2 [2-0 1208678.1 EXHIBIT A- ICCI Scope of Services PROJECT DESCRIPTION The Vallco Town Center SB35 Project is located on the 50.82-acre Vallco Mall property in the City of Cupertino,between Interstate 280 and Steven's Creek Boulevard on both sides of North Wolfe Road. The plans approved by the City of Cupertino for the development of the Vallco SB35 Project include residential, commercial, and office uses spread among multiple buildings, with underground and surface parking, two plazas, and a green roof. Multiple tenant improvements will come later in the course of the Project. SCOPE OF PLAN REVIEW SERVICES ICCI will provide building and public works plan review services for the Vallco SB35 Project. These include, tenant improvement building application plan reviews, Public Works permit applications for site development, including green roof review, geotechnical peer review, and other related plan review services as assigned by the Building Official and/or City Engineer. The scope of services does not include building plan review services for core & shell permits for the foundation and superstructures for multiple buildings, two below grade parking structures with foundation and podium with associated structural elements, a bridged structure over Wolfe Road and green roof structure with associated structural and landscape elements, which ICCI understands is being provided to the City by a separate firm. Plan review services will include, but not be limited to, the following components: BUILDING PLAN REVIEW 1. Ensure compliance with State and local laws and regulations. 2. Ensure compliance with City of Cupertino Municipal Code and City of Cupertino's conditions of approval. 3. Ensure drawings conform and comply with Title 24 California Code of Regulations. • Fire and Life-Safety • Accessibility • Structural • Plumbing • Mechanical j • Electrical • Energy • Green Building Standards 4. Substantiate structural plans meet recommendations made in the project geotechnical report. 5. Ensure plans and details are consistent with product specifications and certification. ON-SITE BUILDING PLAN REVIEW A licensed plan review engineer will be available to be at the project site, provided this service is requested by the developer and funded through an up front deposit account. The plan review engineer is the first point of contact for code consultation, review and approval of RFIs and field revisions on behalf of the City of Cupertino as noted under plan review services listed above. PUBLIC WORKS PLAN REVIEW 1. Ensure compliance with State and local laws and regulations. 2. Ensure compliance with City of Cupertino Municipal Code and standards (including Caltrans standards where appropriate), conditions of approval, and mitigation measures relating to civil design and work within the public right of way. 3. Substantiate that grading plans meet recommendations made in the project geotechnical report. 4. Grading plan check to include a review of grading operations and their effects on existing improvements and utilities, comparison with existing elevations and verification of cut and fill quantities and review of onsite retaining walls and shoring facilities. 5. Review of street improvement plans, including surface improvements, traffic signals, signs and striping, traffic control plans, street lighting, drainage and utilities, landscaping and all other aspects of public facilities and streets in and around the project site. 6. Review of on-site utilities, including storm drain facilities such as proposed storm water treatment measures and storm water pump systems, sanitary sewer, water and other utilities to ensure said improvements meet City requirements. 7. Surface drainage and fine grading to ensure storm water is adequately conveyed to the storm drain system, this includes overland release patterns to ensure that the risk of onsite and offsite flooding is minimized to acceptable levels. a 8. Verify hydrology calculations match what is shown on the Improvement Plans and storm system is adequately sized for the design storm. 9. Review of on-site storm water management plan. 10. Review of green roof with respect to public works/civil engineering and landscape design aspects. 11. Verify work is consistent with existing and proposed easements and related land use elements, and provide recommendations for possible modifications, including relocation of existing easements or acceptance of new easements necessary to facilitate the development. 12. Confirm full trash capture requirements identified in MRP Section C.10 are effectively met. 13. Review and evaluate the total project waste management plan including: estimated volumes generated, waste conveyance systems, storage capacities, and City waste hauler collection/circulation routes. 14. Review of encroachment permits associated with the project to ensure consistency with approved plans. 15. Review of cost estimates for proposed work and verification that costs are commensurate with industry standard costs for construction, labor, and materials. OTHER TASKS 1. Attendance of Design and Construction Meetings. 2. Review and assist with technical problems that arise during construction, including RFI's and shop drawings. 3. Will maintain a tracking system to document all plan reviews and reports, tracking of construction progress and processing of change orders, RFI's and deferred submittals. 4. Transportation services related to transportation planning, traffic operations, freeway and corridor studies, traffic engineering design (including PG&E), intelligent transportation systems (ITS), traffic safety and multi-modal studies. 5. Professional geotechnical related services. The above public works third party plan review services are dependent upon the developer providing an up-front funding mechanism. EXHIBIT B - ICCI Compensation BUILDING PLAN REVIEW Not-to-Exceed Amount: $1,000,000/Year Payment Schedule for each building permit application: Consultant will receive 65% of the submitted Building Plan Check fee. The below chart lists payment schedules for standard review by percentage of that amount.' Payment Amount Payment Milestone 1st Payment 30% Plan Check Fee Initial Assignment for review 2nd Payment 25% Plan Check Fee 1st Comprehensive Plan Review comments issued to applicant 3rd Payment 25% Plan Check Fee 2na Comprehensive Plan Review comments issued to applicant Final Payment 20% Total Plan Check Fee Approval of Plans Where submitted Plan Check fees are $15,000 or less for an individual building permit application, consultant will receive the total sum of 65% of the collected plan check fee . Consultant will submit monthly invoices to the City for these submitted fees. Consultant will receive 65% of any additional Plan Check fees collected by the City for Expedite, Overtime, and/or Non-Business hours Plan Review services requested by applicant. Consultant will submit monthly invoices to the City for these additional collected fees. ON-SITE BUILDING PLAN REVIEW Not-to-Exceed Amount: $500,000 /Year Plan Review Engineer at Project Site $185.00/hour, invoiced monthly PUBLIC WORKS AND GEOTECHNICAL PLAN REVIEW Not-to-Exceed Amount: $3,000,000/Year i Payment Schedule for each public works permit application: Consultant will receive 65% of the submitted Public Works Application fee. The below chart lists payment schedules for standard review by percentage of that amount.* i Payment Amount Payment Milestone Is' Payment 30% Plan Check Fee Initial Assignment for review 2"d Payment 25% Plan Check Fee 1st Comprehensive Plan Review comments issued to applicant 3rd Payment 25% Plan Check Fee 2nd Comprehensive Plan Review comments issued to applicant Final Payment 20% Total Plan Check Fee Approval of Plans * receive o Where submitted Plan Check fees are $15,000 or less, consultant will ece ve 65/o of the submitted fee. Consultant will submit monthly invoices to the City for these submitted fees. Consultant will receive 65% of an additional Plan Check fees collected b the City for Y Y tY Expedite, Overtime, and/or Non-Business hours Plan Review services requested by applicant. Consultant will submit monthly invoices to the City for these additional collected fees. GENERAL PROVISIONS If work on any task is not completed within the time specified by the City, and Consultant has not been able to address or mitigate delays to the satisfaction of the Building Official or City Engineer, the City will provide Consultant a written warning, and if work is not completed within 30 days of the warning, the City may hire a separate consultant to complete the work, or perform the work with City employees, and Consultant shall cover the costs to complete the work, to the extent not already covered by the fees submitted for that work. While Plan Check fees are nonrefundable after review has started, if the City is required to refund fees for any reason, or settles a claim for a refund in good faith, Consultant must remit to City Consultant's pro rata share of the refund within 30 days of notice by the City. Major design changes occurring after the initial plan review submittal will be charged as deemed appropriate and negotiated by all parties for building and public works plan review, provided additional permit fees are submitted by the developer for the major design changes. Consultant will be paid within 30 days of submitting complete invoices to the City based on the above schedule of payments. EXHIBIT C Insurance Requirements Design Professionals & 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 following insurance policies and coverage with companies doing business in California and acceptable to City. I i INSURANCE POLICIES AND MINIMUMS REQUIRED 1. Commercial General Liability (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 01). 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 limit. 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. h 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 01 (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 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 01 covering any auto (including owned, hired, and non-owned 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. J Not required. Consultant has provided written verification of no employees. 4. Professional Liability for 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 form: a The Retroactive Date must be shown and must be before the Effective Date of the Contract. h Insurance must be maintained for at least five (5)years after completion of the Services. c, If coverage is canceled or non-renewed,and not replaced with another claims-made policy form with a Retroactive Date prior to the 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. C-Insurance Requirements for Design Professionals&Consultants Contracts Form Updated Sept. 2019 1 Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers ("Additional Insureds") are to be covered as additional insureds on Consultant's CGL and automobile liability policies. 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 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. 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 shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of 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 Consultant, 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 and Self-Insured 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 the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better. Verification 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 during the Contract term. Subconsultants Consultant 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 for the higher insurance limits maintained by Consultant. Adequacy of Coverage 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. Exh. C-Insurance Requirements for Design Professionals& Consultants Contracts Form Updated Sept. 2019 2 �1 INDEP-2 !Do BMH ACORD° CERTIFICATE OF LIABILITY INSURANCE DATE128// o2o2020Y) o12s THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or 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 925-516-4700 CONTACT Melissa Hoffman NAME: Discovery Bay Ins.Serv., Inc. PHONE 925-516-4700 FAX 925-516-4202 1555 Riverlake Rd.,Ste.F (A/C,No,Ext): (A/C,No): Discovery Bay,CA 94505 E-MAIL ADDRESS:melissa@discoverybayins.com Melissa Hoffman INSURERS AFFORDING COVERAGE NAIC# INSURER A:Evanston Insurance Company 35378 INSURED INSURERS:United Financial Casualty Co. 11770 AbieqailObliqtacioreiConsultants INSURERC:State Compensation Ins Fund 35076 6280 W.Las-Positas Blvd. Suite 220 INSURER D:Landmark American Ins. Co. 33138 Pleasanton,CA 94588 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 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 LTR TYPE OF INSURANCE ADDL SUB POLICY NUMBER POLICY EFF POLICY EXP LIMITS A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,0005000 CLAIMS-MADE X OCCUR 3AA371980 12/03/2019 12/03/2020 DAMAGE TO RENTED 100,000 X PREMISES Ea occurrence $ MED EXP(Any oneperson) $ 5,000 PERSONAL&ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERALAGGREGATE $ 2,000,000 X POLICY PRO ❑ LOC 2,000,000 JECT OTHER: B AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 1,000,000 Ea accident $ X ANY AUTO 06461327-2 01/11/2020 01/11/2021 BODILY INJURY Perperson) $ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY Per accident $ HIRED NON-OWNED PROPERTY DAMAGE AUTOS ONLY AUTOS ONLY Per accident $ HNOA 100,000 A UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 2,000,000 X EXCESS LIAB CLAIMS-MADE EZXS3017175 12/03/2019 12/03/2020 AGGREGATE $ 2,000,000 DED I X I RETENTION$ 10000 $ C WORKERS COMPENSATION X PER I OTH- AND EMPLOYERS'LIABILITY STATUTE ER Y/N 9224300-20 01/11/2020 01/11/2021 15000,000 ANYPROPRI R/PARTNER/EXECUTIVE ❑ E.L.EACH ACCIDENT $ OFFICER/MEMMBB ER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under 1,000,000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT D Errors&Omissions LHR779417 01/10/2020 01/10/2021 E&O 2,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) The Ciry of Cupertino, its City Council, officers, officials,employees, agents,servants and volunteers are listed as additional insureds on General Liability per attached endorsement. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN The City of Cupertino ACCORDANCE WITH THE POLICY PROVISIONS. 10300 Torre Avenue Cupertino, CA 95014 AUTHORIZED REPRESENTATIVE Melissa Hoffman ACORD 25(2016103) ©198 5 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD COMMERCIAL GENERAL LIABILITY III POLICY NUMBER: 3AA371980 MARKEV EVANSTON INSURANCE COMPANY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM LIQUOR LIABILITY COVERAGE FORM OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE FORM PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE FORM SCHEDULE Additional Premium: $ 500 (Check box if fully earned.®) A. Who Is An Insured is amended to include as an additional insured any person or entity to whom you are obligated by valid written contract to provide such coverage, but only with respect to negligent acts or omissions of the Named Insured and only with respect to any coverage not otherwise excluded in the policy. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contractor agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. Our agreement to accept an additional insured provision in a contract is not an acceptance of any other provisions of the contract or the contract in total. When coverage does not apply for the Named Insured, no coverage or defense will apply for the additional insured. No coverage applies to such additional insured for injury or damage of any type to any"employee"of the Named Insured or to any obligation of the additional insured to indemnify another because of damages arising out of such injury or damage. B. With respect to the insurance afforded to these additional insured, the following is added to limits of insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable limits of insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable limits of insurance shown in the Declarations. All other terms and conditions remain unchanged. MEGL 0009-01 08 18 Includes copyrighted material of Insurance Services Office, Inc., Page 1 of 1 with its permission. COMMERCIAL GENERAL LIABILITY gig POLICY NUMBER: 3AA371980 MMKEV EVANSTON INSURANCE COMPANY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM SCHEDULE Name Of Person Or Organization: Any person(s)or organization(s)with whom the Named Insured agrees, in a written contract executed prior to the"occurrence", to waive rights of recovery Additional Premium: $ 250 The following is added to Condition 8. Transfer Of Rights Of Recovery Against Others To Us under Section IV — Commercial General Liability Conditions: We waive any right of recovery we may have against any person or organization shown in the Schedule of this endorsement. This waiver applies only to the person or organization shown in the Schedule of this endorsement. All other terms and conditions remain unchanged. MEGL 0241-01 05 16 Includes copyrighted material of Insurance Services Office, Inc., Page 1 of 1 with its permission. COMMERCIAL GENERAL LIABILITY CG 20 01 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PRIMARY AND NONCONTRIBUTORY - OTHER INSURANCE CONDITION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART The following is added to the Other Insurance (2) You have agreed in writing in a contract or Condition and supersedes any provision to the agreement that this insurance would be contrary: primary and would not seek contribution Primary And Noncontributory Insurance from any other insurance available to the additional insured. This insurance is primary to and will not seek contribution from any other insurance available to an additional insured under your policy provided that: (1) The additional insured is a Named Insured under such other insurance; and CG 20 01 04 13 0 Insurance Services Office, Inc., 2012 Page 1 of 1 ENDORSEMENT AGREEMENT BROKER COPY STATE COMPENSATION WAIVER OF SUBROGATION BLANKET BASIS 9224300-20 FUND RENEWAL NA HOME OFFICE 1-69-33-36 SAN FRANCISCO EFFECTIVE JANUARY 12, 2020 AT 12.01 A.M. PAGE 1 OF 1 ALL EFFECTIVE DATES ARE AND EXPIRING JANUARY 12, 2021 AT 12.01 A.M. AT 12:01 AM PACIFIC STANDARD TIME OR THE TIME INDICATED AT PACIFIC STANDARD TIME INDEPENDENT CODE CONSULTANTS (A CO 6280 W LAS POSITAS BLVD STE 220 PLEASANTON, CA 94588 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. THE ADDITIONAL PREMIUM FOR THIS ENDORSEMENT SHALL BE 2.00% OF THE TOTAL POLICY PREMIUM. SCHEDULE PERSON OR ORGANIZATION JOB DESCRIPTION ANY PERSON OR ORGANIZATION BLANKET WAIVER OF FOR WHOM THE NAMED INSURED SUBROGATION HAS AGREED BY WRITTEN CONTRACT TO FURNISH THIS WAIVER NOTHING IN THIS ENDORSEMENT CONTAINED SHALL BE HELD TO VARY, ALTER, WAIVE OR EXTEND ANY OF THE TERMS, CONDITIONS, AGREEMENTS, OR LIMITATIONS OF THIS POLICY OTHER THAN AS STATED. NOTHING ELSEWHERE IN THIS POLICY SHALL BE HELD TO VARY, ALTER, WAIVE OR LIMIT THE TERMS, CONDITIONS, AGREEMENTS OR LIMITATIONS OF THIS ENDORSEMENT. COUNTERSIGNED AND ISSUED AT SAN FRANCISCO: JANUARY 2 , 2020 AUTHORIZED REPRESENT IVE PRESIDENT AND CEO 2572 SCIF FORM 10217 (REV.7-2014) OLD DP 217