21-270 Ecology Action of Santa Cruz (“Contractor”), Cupertino Climate Victory Gardens Pilot ContinuationCupertino Climate Victory Gardens Pilot Continuation
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PROFESSIONAL/CONSULTING SERVICES AGREEMENT
1. PARTIES
This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”),
and Ecology Action of Santa Cruz (“Contractor”), a Non-Profit for Cupertino Climate Victory
Gardens Pilot Continuation, and is effective on the last date signed below (“Effective Date”).
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. Contractor further agrees to carry
out its work in compliance with any applicable local, State, or Federal order regarding COVID-19.
3. TIME OF PERFORMANCE
3.1 This Agreement begins on the Effective Date and ends on December 31, 2022 (“Contract
Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on the
effective date and shall be completed by December 31, 2022. The City’s appropriate department
head or the 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. Contractor must deliver the Services in accordance with the
Schedule of Performance, attached and incorporated here Exhibit B.
3.3 Time is of the essence for the performance of all the Services. Contractor must have
sufficient time, resources, and qualified staff to deliver the Services on time.
4. COMPENSATION
4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the
Services an amount that will based on actual costs but that will be capped so as not to exceed
$60,000.00 (“Contract Price”), based upon the scope of services in Exhibit A and the budget and
rates included in Exhibit C, Compensation attached and incorporated here. The maximum
compensation includes all expenses and reimbursements and will remain in place even if
Contractor’s actual costs exceed the capped amount. No extra work or payment is permitted
without prior written approval of City.
4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable
completed and the amount due for the preceding month. Within thirty (30) days of completion of
Services, Contractor must submit a requisition for final and complete payment of costs and pending
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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.
5. INDEPENDENT CONTRACTOR
5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint
venture of City. Contractor is solely responsible for the means and methods of performing the
Services and for the persons hired to work under this Agreement. Contractor is not entitled to
health benefits, worker’s compensation, or other benefits from the City.
5.2 Contractor’s Qualifications. Contractor warrants on behalf of itself and its subcontractors
that they have the qualifications and skills to perform the Services in a competent and professional
manner and according to the highest standards and best practices in the industry.
5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that
they are properly licensed, registered, and/or certified to perform the Services as required by law
and have procured a City Business License, if required by the Cupertino Municipal Code.
5.4 Subcontractors. Only Contractor’s employees are authorized to work under this
Agreement. Prior written approval from City is required for any subcontractor, and the terms and
conditions of this Agreement will apply to any approved subcontractor.
5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and
equipment required to perform the Services under this Agreement.
5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor
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. Contractor
shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or
charges applicable to Contractor’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 Contractor. 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 Contractor, or any of its employees,
agents, or subcontractors, is an employee for any purpose, then Contractor 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.
6. PROPRIETARY/CONFIDENTIAL INFORMATION
In performing this Agreement, Contractor may have access to private or confidential information
owned or controlled by the City, which may contain proprietary or confidential details the
disclosure of which to third parties may be damaging to City. Contractor shall hold in confidence
all City information provided by City to Contractor and use it only to perform this Agreement.
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Contractor shall exercise the same standard of care to protect City information as a reasonably
prudent contractor would use to protect its own proprietary data.
7. OWNERSHIP OF MATERIALS
7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product,
memoranda, study, report, map, plan, drawing, specification, data, record, document, or other
information or work, in any medium (collectively, “Work Product”), prepared by Contractor in
connection with this Agreement will be the exclusive property of the City upon completion of the
work to be performed hereunder or upon termination of this Agreement, to the extent requested by
City. In any case, no Work Product shall be shown to any third-party without prior written approval
of City.
7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all Work Product arising
out of this Agreement is considered “works for hire” and all copyrights to the Work Product will
be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights.
Contractor may use copies of the Work Product for promotion only with City’s written approval.
7.3 Patents and Licenses. Contractor must pay royalties or license fees required for authorized
use of any third party intellectual property, including but not limited to patented, trademarked, or
copyrighted intellectual property if incorporated into the Services or Work Product of this
Agreement.
7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City
may use or modify the Work Product of Contractor or its sub-contractors prepared or created under
this Agreement, to execute or implement any of the following:
(a) The original Services for which Contractor was hired;
(b) Completion of the original Services by others;
(c) Subsequent additions to the original Services; and/or
(d) Other City projects.
7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work
Product, on recycled paper and copied on both sides, except for one single-sided original.
8. RECORDS
Contractor must maintain complete and accurate accounting records relating to its performance in
accordance with generally accepted accounting principles. The records must include detailed
information of Contractor’s performance, benchmarks and deliverables, which must be available
to City for review and audit. The records and supporting documents must be kept separate from
other records and must be maintained for four (4) years from the date of City’s final payment.
Contractor acknowledges that certain documents generated or received by Contractor in
connection with the performance of this Agreement, including but not limited to correspondence
between Contractor and any third party, are public records under the California Public Records
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Act, California Government Code section 6250 et seq. Contractor shall comply with all laws
regarding the retention of public records and shall make such records available to the City upon
request by the City, or in such manner as the City reasonably directs that such records be provided.
9. ASSIGNMENT
Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest
therein, directly or indirectly, by operation of law or otherwise, without prior written consent of
City. Any attempt to do so will be null and void. Any changes related to the financial control or
business nature of Contractor as a legal entity is considered an assignment of the Agreement and
subject to City approval, which shall not be unreasonably withheld. Control means fifty percent
(50%) or more of the voting power of the business entity.
10. PUBLICITY / SIGNS
Any publicity generated by Contractor for the project under this Agreement, during the term of
this Agreement and for one year thereafter, will reference the City’s contributions in making the
project possible. The words “City of Cupertino” will be displayed in all pieces of publicity,
including flyers, press releases, posters, brochures, public service announcements, interviews and
newspaper articles. No signs may be posted, exhibited or displayed on or about City property,
except signage required by law or this Contract, without prior written approval from the City.
11. INDEMNIFICATION
11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active
negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, officials, employees, agents,
servants, volunteers, and consultants (“Indemnitees”), through legal counsel acceptable to City,
from and against any and all liability, damages, claims, actions, causes of action, demands,
charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to
litigation and dispute resolution proceedings) of every nature, arising directly or indirectly from
this Agreement or in any manner relating to any of the following:
(a) Breach of contract, obligations, representations, or warranties;
(b) Negligent or willful acts or omissions committed during performance of the Services;
(c) Personal injury, property damage, or economic loss resulting from the work or performance
of Contractor or its subcontractors or sub-subcontractors;
(d) Unauthorized use or disclosure of City’s confidential and proprietary Information;
(e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark,
or service mark or other proprietary or intellectual property rights of any third party.
11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must
accept a tender of defense upon receiving notice from City of a third-party claim. At City’s request,
Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this
Agreement.
11.3 Contractor’s duties under this section are not limited to the Contract Price, workers’
compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in
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the Agreement shall be construed to give rise to an implied right of indemnity in favor of
Contractor against City or any Indemnitee.
11.4. Contractor’s payments may be deducted or offset to cover any money the City lost due to a
claim or counterclaim arising out of this Agreement, a purchase order, or other transaction.
11.5. Contractor 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 Contractor 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.
11.6. This Section 11 shall survive termination of the Agreement.
12. INSURANCE
Contractor shall comply with the Insurance Requirements, attached and incorporated here as
Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as
required by City. City will not execute the Agreement until City approves receipt of satisfactory
certificates of insurance and endorsements evidencing the type, amount, class of operations
covered, and the effective and expiration dates of coverage. Failure to comply with this provision
may result in City, at its sole discretion and without notice, purchasing insurance for Contractor
and deducting the costs from Contractor’s compensation or terminating the Agreement.
13. COMPLIANCE WITH LAWS
13.1 General Laws. Contractor shall comply with all local, state, and federal laws and
regulations applicable to this Agreement. Contractor will promptly notify City of changes in the
law or other conditions that may affect the Project or Contractor’s ability to perform. Contractor
is responsible for verifying the employment authorization of employees performing the Services,
as required by the Immigration Reform and Control Act.
13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If
the Scope of Services includes a “public works” component, Contractor is required to comply with
prevailing wage laws under Labor Code Section 1720 and other labor laws.
13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious
creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy,
age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome
(AIDS), or any other protected classification. Contractor shall comply with all anti-discrimination
laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735,
1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination,
Contractor understands that harassment and discrimination directed toward a job applicant, an
employee, a City employee, or any other person, by Contractor or its employees or sub-contractors
will not be tolerated. Contractor agrees to provide records and documentation to the City on
request necessary to monitor compliance with this provision.
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13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable
to this Agreement and must avoid any conflict of interest. Contractor warrants that no public
official, employee, or member of a City board or commission who might have been involved in
the making of this Agreement, has or will receive a direct or indirect financial interest in this
Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be
required to file a conflict of interest form if Contractor makes certain governmental decisions or
serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of
Regulations. Contractor agrees to abide by the City’s rules governing gifts to public officials and
employees.
13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City
suspending payments, requiring reimbursements or terminating this Agreement. City reserves all
other rights and remedies available under the law and this Agreement, including the right to seek
indemnification under Section 11 of this Agreement.
14. PROJECT COORDINATION
City Project Manager. The City assigns Andre Duurvoort as the City’s representative for all
purposes under this Agreement, with authority to oversee the progress and performance of the
Scope of Services. City reserves the right to substitute another Project manager at any time, and
without prior notice to Contractor.
Contractor Project Manager. Subject to City approval, Contractor assigns Sherry Lee Bryan as
its single Representative for all purposes under this Agreement, with authority to oversee the
progress and performance of the Scope of Services. Contractor’s Project manager is responsible for
coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule
of Performance. Contractor must regularly update the City’s Project Manager about the progress
with the work or any delays, as required under the Scope of Services. City written approval is
required prior to substituting a new Representative.
15. ABANDONMENT OF PROJECT
City may abandon or postpone the Project or parts therefor at any time. Contractor will be
compensated for satisfactory Services performed through the date of abandonment, and will be
given reasonable time to assemble the work and close out the Services. With City’s pre-approval
in writing, the time spent in closing out the Services will be compensated up to a maximum of ten
percent (10%) of the total time expended to date in the performance of the Services.
16. TERMINATION
City may terminate this Agreement for cause or without cause at any time. Contractor will be paid
for satisfactory Services rendered through the date of termination, but final payment will not be
made until Contractor closes out the Services and delivers the Work Product.
17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION
This Agreement is governed by the laws of the State of California. Any lawsuits filed related to
this Agreement must be filed with the Superior Court for the County of Santa Clara, State of
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California. Contractor must comply with the claims filing requirements under the Government
Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide
the Services 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.
19. THIRD PARTY BENEFICIARIES
There are no intended third party beneficiaries of this Agreement.
20. WAIVER
Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract
provision. City’s waiver of a breach shall not constitute waiver of another provision or breach.
21. ENTIRE AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature between
the Parties, and supersedes any other agreement(s) and understanding(s), either oral or written,
between the Parties. Any modification of this Agreement will be effective only if in writing and
signed by each Party’s authorized representative. No verbal agreement or implied covenant will
be valid to amend or abridge this Agreement. If there is any inconsistency between any term,
clause, or provision of the 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 provision and clause required by law for this Agreement is deemed to be included and will
be inferred herein. Either party may request an amendment to cure mistaken insertions or
omissions of required provisions. The Parties will collaborate to implement this Section, as
appropriate.
23. HEADINGS
The headings in this Agreement are for convenience only, are not a part of the Agreement and in
no way affect, limit, or amplify the terms or provisions of this Agreement.
24. SEVERABILITY/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
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Agreement or their application to specific situations shall remain in full force and effect. The
Parties agree to work in good faith to amend this Agreement to carry out its intent.
25. SURVIVAL
All provisions which by their nature must continue after the Agreement expires or is terminated,
including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law,
and Attorney Fees, shall survive the Agreement and remain in full force and effect.
26. NOTICES
All notices, requests and approvals must be sent in writing to the persons below, which will be
considered effective on the date of personal delivery or the date confirmed by a reputable overnight
delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid,
registered or certified, or the next business day following electronic submission:
To City of Cupertino
Office of the City Manager
10300 Torre Ave.
Cupertino, CA 95014
Attention: Andre Duurvoort, Sustainability
Manager
Email: AndreD@cupertino.org
To Contractor:
Ecology Action of Santa Cruz
877 Cedar St., Suite 240
Santa Cruz, CA 95060
Attention: Erin Hoben, Corporate Compliance
Manager
Email: Erin.Hoben@ecoact.org
27. EXECUTION
The person executing this Agreement on behalf of Contractor represents and warrants that
Contractor has full right, power, and authority to enter into and carry out all actions contemplated
by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a
legally binding obligation of Contractor. This Agreement may be executed in counterparts, each
one of which is deemed an original and all of which, taken together, constitute a single binding
instrument.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CITY OF CUPERTINO CONTRACTOR
A Municipal Corporation
By By
Name Name
Title Title
Date Date
Vice President Community Programs
Dec 7, 2021
Kirsten Liske
Dec 7, 2021
City Manager
Greg Larson
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APPROVED AS TO FORM:
CHRISTOPHER D. JENSEN
Cupertino City Attorney
ATTEST:
KIRSTEN SQUARCIA
City Clerk
Date
Christopher D. Jensen
Dec 7, 2021
EXHIBIT A – SCOPE OF SERVICES
Scope of Work
Cupertino Climate Victory Gardens Continuation Program Summary
The Cupertino Climate Victory Gardens program will convert an estimated 15,000 square feet of high-water
use landscaping to low-water use, climate-appropriate landscaping using a direct installation model that
removes barriers to action and increases utilization of rebate funding available from Valley Water and the City
of Cupertino.
The Climate Victory Garden direct installation program will offer wrap around project management services to
help residents, HOAs and property management organizations through the landscape retrofit design and
installation process, all the while educating the community about climate-appropriate landscapes that create
beauty, add value and reduce GHG emissions. The program will be open to all residents of the City of
Cupertino and make installation costs more affordable by leveraging the existing $3/ft2 rebate from Valley
Water and City of Cupertino. The program will also integrate green infrastructure and laundry-to-landscape
greywater reuse as additional add-on services, further extending the reach of Cupertino’s stormwater and
greywater rebate programs to incentivize decentralized, drought resilient water-banking and reuse strategies
at the time of landscape retrofit planning.
Scope of Work Tasks
Task 1: Program Development and Refinements
i. Attend meetings with City of Cupertino staff to inform program intake design and community based
social marketing strategy.
ii. Revise template project agreement for Program Participants, to be reviewed by City of Cupertino
contract management staff
iii. Revise template C-27 landscape contractor partnership agreement for contractors qualified to provide
direct installation construction services, to be reviewed by City of Cupertino contract management
staff.
iv. Renew partnership agreements with C-27 landscape contractors, extending end date of partnerships
to October 30, 2022
v. Conduct phone interviews with new C-27 contractors and check client references. Any C-27 contractor
that meets the qualifications listed in the original program RFQ will be offered the opportunity to sign
a partnership agreement to participate in the Climate Victory Gardens program as Program contractor.
Ecology Action will assign Program contractors to specific Climate Victory Garden projects by lottery
and/or experience with a particular add-on service requested by the Program Participant.
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Task 2: Site Assessments and Site Design
i. Pre-Qualify Participants and Schedule Site Assessments at up to 15 sites.
o Ecology Action will contact the prospective program Participant by phone or e-mail to discuss
design survey responses and to schedule a site assessment within 3 business days of having
received contact information from the City of Cupertino’s marketing efforts. Residents who
qualify for Our City Forest’s Lawn Busters program based on income, age, veteran status or
disability will be referred to that program for subsidized services.
o In advance of the site assessment, Ecology Action will provide the Participant an electronic
copy of a project agreement that documents a Participant’s commitment to complete the
project within a specified time frame and authorizes Ecology Action to apply for rebates on the
Participant’s behalf. Single-family tenants applying to the technical assistance program must
obtain an authorized signature from the property owner.
o Ecology Action will track all Participant contacts in the City’s custom cloud-based database and
workflow management application
ii. Provide Landscape Consultation at up to 15 sites
o During each 2-hour site assessment, Ecology Action will measure and verify presence of
irrigated turf, conduct irrigation system zone mapping and spray head location, and identify
opportunities to integrate laundry greywater and/or passive rainwater into landscape design
via rain gardens and permeable pavements. Participants will be engaged in the site
assessment design process and:
Interviewed for their preferences for the function and aesthetic of the landscape they
are trying to create;
Informed about appropriate turf-removal strategies for their site;
Provided with climate appropriate landscape design templates (available from South
Bay Green Gardens, CA Native Plant Society, UC Davis Arboretum and others) and
asked to select a preferred plant palate,
Asked to confirm a project budget that will guide what elements can be realistically
included in the landscape design.
Informed about the next steps for participating in the technical assistance program
and provided an opportunity to ask questions about the project agreement.
Single-family residential Participants will be provided the option to be supported in
hiring a contractor, or performing the work themselves (‘Participant installation’), to
be indicated on the project agreement (see Task 3).
iii. Provide Landscape Designs for up to 10 sites
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o After a signed project agreement is received from the Participant:
Pre-construction site photos are uploaded to a project folder.
A customized design and written project scope of work is produced at no-cost to the
Participant and submitted to the Participant for approval via e-mail. The scope of
work will detail by line item the rebate incentive amounts the project qualifies for.
Ecology Action staff may produce design in-house, or may outsource design work to a
landscape design professional.
The approved design and plant list with coverage area are uploaded to a Participant’s
project folder on Teams.
Task 3: Project Coordination & Contractor Management
i. Apply for Rebates for up to 10 sites
o After a Participant approves of the landscape design and scope of work:
A landscape rebate program application, supporting documentation, and pre-
construction site photos of existing site conditions will be submitted on the
Participant’s behalf to Valley Water for pre-approval.
If the Participant’s budget is sufficient for rainwater harvesting, laundry-to-landscape
greywater irrigation, or the City of Cupertino’s permeable pavement rebate, separate
rebate applications will be prepared and submitted for these project elements.
Participant is cc’d on all rebate communications.
ii. Coordinate Climate Victory Garden Installations for up to 10 sites
o After Valley Water approves the project’s landscape water conservation rebate application(s),
Ecology Action will support Participants in moving their projects to completion. A 90-day turn-
around is the goal, but will ultimately depend on the participant’s responsiveness and life
circumstances. Ecology Action’s approach to technical assistance will take utilize three options
depending on the participant’s preference and budget.
Option 1: Single Family - Participant Installation
Pre-Installation: Participants will choose a target installation date within 60 days of the landscape
conservation rebate approval date. In advance of the installation date, Ecology Action will coordinate all
materials ordering for the Participant. Participants will pay for and pick up their orders from vendors directly.
Installation: If Covid-19 public health orders allow, Participants will be encouraged to invite family and friends
to a work party on their installation date, which EA will attend for up to 4 hours to ensure the project is off to
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a good start. Otherwise, Ecology Action will be available to the Participant for Facetime or video consultation
during the project installation date. Participant notifies Ecology Action when work is complete.
Option 2: Contractor Direct Installation
Installation:
• Contractor will complete the installation within 60 days from the date that a Participant approves the
Contractor estimate.
• Contractor and/or Participant notify EA when installation date has been scheduled, and when work is
complete.
Option 3: Participant’s Choice of Contractor
Pre-Installation:
• Ecology Action will send the Participant’s approved design and scope of work to the Participant’s
selected contractor(s) to request an estimate, cc’ing the Participant.
• Program Participant will select their preferred contractor and enter into an agreement to proceed
with work in the construction estimate that is exclusively between themselves and their preferred
contractor.
Installation: Participant notifies Ecology Action when an installation date has been scheduled, and when the
contractor’s work is complete. Ecology Action schedules bi-weekly check-ins with Participant to track project
progress.
iii. Conduct Post-Installation Site Visit & Rebate Processing for up to 10 sites
o After Project construction is complete:
• Ecology Action will schedule a post-construction assessment with the Participant to verify
work was completed according to the design and rebate program specifications.
• The following will take place during a post-construction assessment:
Single Family - Participant Installation Single and Multi-Family Contractor Installation
During the post-construction site assessment,
Ecology Action will help finish tasks that need extra
assistance. EA will provide a maintenance checklist
for their new landscape and review site specific
maintenance needs, mulching frequency, and
natural pruning strategies. Sites with irrigation
Multi-Family Properties: Ecology Action will request
that the property owner’s maintenance crew
foreman is present during the post-construction site
assessment to ensure that the irrigation controller is
scheduled appropriately, and to provide and discuss
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controllers will be reprogrammed with weather-
based schedules. Participants will also be referred to
Valley Water’s Landscape Maintenance Education
Program.
ecological landscape maintenance checklist and
instructions for new plantings.
Single-Family Properties: Same as ‘Participant
Installation’
• Post-construction photo documentation will be uploaded to a project folder shared with Valley
Water and the City of Cupertino.
Task 4: Program Evaluation, Invoicing and Reporting
i. Ecology Action will produce quarterly progress reports, and schedule monthly check-in calls to chart
program success and improvements.
ii. Ecology Action will produce quarterly invoices, submitted with progress reports, reporting staff hours
by task.
iii. A final report submitted to the City will summarize water and energy savings from each pilot project,
and recommendations for future continuation of the program.
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Scope of Work and Payment Structure for Climate Victory Garden Package
For all options, Landscape Design & Technical Assistance, and Rebate Application submission services are Free
to Participant – Covered under contract with City of Cupertino
• Projects must meet all of Valley Water’s Landscape Retrofit requirements
• Single Family Residential (Front Yards Only): Minimum project size = 750 ft2; Maximum project size
covered by rebates = 1,500 ft2
• Multi-Family/Non-Profit (Front Yards or Common Spaces Only): Minimum project size = 1,000 ft2.
Maximum project size covered by rebates = 10,000 ft2
Scope of Work Tasks for Climate Victory Garden - Landscape Conversion
Phase 1: Contacting 811 to locate underground utilities before project begins, hardscape edging and soil
grading, spray head capping and drip riser conversion, equipment and materials delivery to work site, physical
turf removal and/or cardboard application for sheet mulching, applying mulch and compost (optional) to
minimum 4” depth.
Phase 2: Planting according to planting plan, installing drip irrigation to new plantings, and reprogramming
existing irrigation controller with a weather-based schedule for the new landscape (if controller is present on
site).
Note: Permeable hardscape materials, (pavers, decomposed granite, etc.), rainwater harvesting and greywater
irrigation NOT included in basic Climate Victory Garden package, but can be added pending the Participant’s
project budget.
Payment Structure for Climate Victory Garden Features
Option 1: Participant Installation - Single Family Only
Climate Victory Garden Landscape Transformation – Maximum Cost to Participant = $3/sq ft.
Participant claims Valley Water/City of Cupertino $3/ft2 landscape conversion rebate, resulting in a no cost
project.
• Rain Garden add-on – Participant claims rebate of $2/ ft2 of roof area, up to $600.
• Rain Barrel (40-199 gallon) add-on –Participant selects barrel and claims rebate of $70 per barrel.
• Rainwater Harvesting; Graywater Laundry to Landscape and Impervious Hardscape Conversion to
Permeable Pavement - Customer referred to options 2 and 3
Option 2: Direct Installation– Single and Multi-Family/Non-Profit
Page 7 of 10
Climate Victory Garden Landscape Transformation
• Participant pays cost share of $500 deposit (no matter the project size) plus $6/ft2, paid to
Contractor upon phase 1 and 2 completion.
• Any requested items outside of the Climate Victory Garden Package scope of work or
additional landscaped area beyond the max ft2 is to be determined between Contractor
and Participant in a separate estimate.
• Ecology Action assists Participant in claiming Valley Water/City of Cupertino $3/ ft2 rebate.
Rain Garden + Rain Barrel add-on
Total labor and materials cost: $1,000
• Participant pays cost share of $1,000 to Ecology Action or program Contractor
• Ecology Action assists Participant in claiming Valley Water/City of Cupertino $2/ ft2 rebate
• Ecology Action assists Participant in claiming Valley Water/City of Cupertino $70 per barrel
Laundry-to-Landscape Greywater System Add-on
Total labor and materials cost: $1,500
• Participant pays cost share of $1,500 to Ecology Action or program Contractor
• Ecology Action assists Participant in claiming Valley Water/City of Cupertino $400 rebate.
Rainwater Harvesting Add-on (>200 gallons)
Total labor and materials cost will depend on the size of the cistern. Contractor will provide quote.
• Participant pays cost share to Contractor.
• Ecology Action assists Participant in claiming Valley Water/City of Cupertino $1/gallon
rebate (subject to $3K or $40k total rebate cap).
Hardscape Conversion to Permeable Pavement
Total labor and materials cost will depend on the size of the project. Contractor will provide quote
• Participant pays cost share to Contractor.
• Ecology Action assists Participant in claiming City of Cupertino rebate, $3 ft2, up to $900.
Option 3: Participant’s Choice of Contractor – Single and Multi-Family/Non-Profit
Installation costs for all aspects are determined by the selected Contractor estimate. Typical contractor
estimates for Landscape Transformation will range from $6-$12/ft2.
Page 8 of 10
Ecology Action assists Participant in claiming Valley Water/City of Cupertino $3/ft2 landscape conversion
rebate, and other rebates available to offset the cost of their contractor installation.
Page 9 of 10
EXHIBIT B - SCHEDULE OF PERFORMANCE
Project Deliverable Schedule
Task # Task Deliverable Item Timeline Critical Deadlines
1 Revised Template Participant Project
Agreement January 2022 1/15/2022
1 Revised C-27 Landscape Contractor
Partnership Agreement January 2022 1/15/2022
2
List of Site Assessment Locations with
project status
January-June 2022 –
provided with
quarterly progress
reports
4/15/2022; 7/15/22
2 Completed Project Agreements and
Landscape Designs for 10 project sites.
January-May 2022 –
Stored in Project
Teams folder
5/31/2022
3 Pre-Construction Photos, Rebate
applications & documentation for 10
project sites.
January-June 2022 -
Stored in Project
Teams folder
6/31/22
3 Post-Construction Photos & Maintenance
Agreements for 10 sites
April-September
2022 10/30/22
4 Quarterly Invoices and Progress Reports January-September
2022
4/15/22, 7/15/22;
10/15/22
4 Final Project Location List and Final Project
Report October 2022 10/30/2022
Page 10 of 10
EXHIBIT C - COMPENSATION
Climate Victory Gardens Project Budget
Line
Item Personnel
Rate # of Hours Total Labor
1 Finance Director $115.00 6 $ 690.00
2
Tasks 1-4
Program Management, Landscape
Design & Technical Assistance
(January -June 2022)
$107.50 530 $ 56,975.00
3 Mileage - Travel to Project Sites $ 0.575 1500 $ 840.00
4 Project Materials and Supplies lump sum $550.00
Total Contract Maximum $ 59,055.00
Climate Victory Gardens Project Estimated Personnel Hours by Task
Estimated Staff Hours by
Task
Task 1 Task 2 Task 3 Task 4
October-
December
2020
October -
December 2020
November
2020 - April
2021
Ongoing -
June 2021
Staff Position
Program
Development
& Launch
Site
Assessments
and Site Design
- 26 hours per
site
Project
Coordination
& Contractor
Management;
Post-
Installation
Site Visits - 20
hours per site
Program
Evaluation,
Invoicing
and
Reporting
Total
Staff
Hours
Finance Director 6 6
Program Manager -
Landscape Designer 40 260 200 30 530
Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts
1
Form Updated Sept. 2019
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.
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.
b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory,"
will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO
Form CG 20 10 (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.
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.
b. 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.
EXHIBIT D
Insurance Requirements
Design Professionals & Consultants Contracts
Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts
2
Form Updated Sept. 2019
OTHER INSURANCE PROVISIONS
The aforementioned insurance shall be endorsed and have all the following conditions and provisions:
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.
Ecology Action Climate Victory Gardens Pilot
Continuation
Final Audit Report 2021-12-07
Created:2021-12-07
By:Gilee Corral (GileeC@Cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAA_V56Hz5b84lkTUND72VmPag70wnq3__Y
"Ecology Action Climate Victory Gardens Pilot Continuation" Hist
ory
Document created by Gilee Corral (GileeC@Cupertino.org)
2021-12-07 - 5:05:23 PM GMT- IP address: 64.165.34.3
Document emailed to Andre Duurvoort (andred@cupertino.org) for approval
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Agreement completed.
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