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18-202 Amendment #3 07-26-20211 THIRD AMENDMENT TO AGREEMENT 18-202 BETWEEN THE CITY OF CUPERTINO AND HEXAGON TRANSPORTATION CONSULTANTS FOR TRIP GENERATION STUDY AND SITE ACCESS ANALYSIS FOR 10625 FOOTHILLBLVD This Third Amendment to Agreement 18-202 between the City of Cupertino and Hexagon Transportation Consultants, for reference dated July 5, 2021, is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and Hexagon Transportation Consultants, a Corporation (“Contractor”) whose address is 111 W St. John St., Ste 850, San Jose, CA 95113, and is made with reference to the following: RECITALS: A. On 9/20/2018 Agreement 18-202 (“Original Agreement”) was entered into by and between City and Contractor for proposal to prepare a trip generation study and site access analysis for a proposed mixed-use development at 10625 S. Foothill Boulevard. B. On 6/10/2019, City and Consultant entered into a First Amendment to the Agreement. C. On 6/5/2020, City and Consultant entered into a Second Amendment to the Agreement. D. The Original Agreement, First Amendment, and Second Amendment are collectively referred to as the “Agreement”, unless otherwise indicated. E. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. Paragraph 3 of the Agreement is modified to read as follows: 3.1 Term. This Agreement begins on Effective Date and ends on June 30, 2022, unless terminated earlier as provided herein (“Contract Time”). 3.2 Schedule of Performance. All Services must be provided within the times specified in Exhibit B-2, Schedule of Performance, attached and incorporated here. 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 de lays. If the Services are divided by tasks, Consultant must begin work on each separate task upon receiving City's Notice to Proceed ("NTO") and must complete each task within the time specified in Exhibit B-1. 3.3 Time is of the essence for the performance of all the Services. Consultant must have sufficient time, resources, and qualified staff to deliver the Services on time. 2. Exhibit B-2, attached hereto, is added to the Agreement. 2 3. Paragraph 4 of the Agreement is modified as follows: COMPENSATION 4.1 Maximum Compensation. City will pay Consultant for satisfactory performance of the Basic Services and Additional Services, if approved, a cumulative total amount that will be capped so as not to exceed $ 6850 ("Contract Price"), as specified in Exhibit C-1, Compensation, attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place even if Consultant's actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. 4.2 Basic Services. City will pay Consultant $ 6850 ("Lump Sum Price") for the complete and satisfactory performance of the Basic Services in accordance with Exhibit C-1. The Lump Sum Price is inclusive of all time and expenses, including, but not limited to, subConsultant's costs, materials, supplies, equipment, travel, taxes, overhead and profit. If the Basic Services are not fully completed, Consultant will be compensated a percentage of the Lump Sum Price proportionate to the percentage of Basic Services that were completed to City's reasonable satisfaction. 4.3 Additional Services. City has the discretion, but not the obligation, to authorize Additional Services up to an amount not to exceed$ 0. Additional Services provided to City's reasonable satisfaction will be compensated on a lump sum basis or based on time and expenses, in accordance will the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C-1. If paid on an hourly basis, Consultant will be compensated for actual costs only of normal business expenses and overhead, with no markup or surcharge ("Reimbursable Expenses"). Consultant will not be entitled to reimbursement for copying, printing, faxes, telephone charges, employee overtime, or travel to City offices or to the Project site. 4.4 Invoices and Payments. Monthly invoices must describe the Services completed and the amount due for the preceding month. City will pay Consultant within 30 days following receipt of a properly submitted and approved invoice for Services. The invoice must separately itemize and provide subtotals for Basic Services and Additional Services and must state the percentage of completion for each task, as specified in Exhibit C-1. City will notify Consultant in writing of any disagreements with the invoice or the stated percentage of completion of tasks. If the disagreement is unresolved, City will pay Consultant only for the undisputed portion of the Services. Disputed amounts shall be subject to the Dispute Resolution provision of this Agreement. a. Time and Expenses. For Additional Services provided on an hourly basis, each invoice must also include, for each day of Services provided: (i) name and title of each person providing Services; (ii) a succinct summary of the Services perfo1med by each person; (iii) the time spent per person, in 30 minute increments; (iv) the hourly billing rate or Sub- Consultant charge and payment due; and (v) an itemized list with amounts and explanation for all pe1mitted reimbursable expenses. 4. Exhibit C to the Agreement is replaced with Exhibit C-1, attached hereto. 5. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. 3 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CITY OF CUPERTINO By Title Date APPROVED AS TO FORM City Attorney ATTEST: City Clerk Date HEXAGON TRANSPORTATION CONSULTANTS By Title Date EXPENDITURE DISTRIBUTION Item PO Number Amount - 2019-310 $6,000 1st Amendment $0 2nd Amendment $0 3rd Amendment $850 Total $6,850 Brian Jackson Senior Associate Jul 21, 2021 Christopher D. Jensen Jul 26, 2021 Director of Community Development Jul 26, 2021 July 5, 2021 Ms. Abby Ayende Management Analyst City of Cupertino Planning Division 10300 Torre Avenue Cupertino, CA 95014 Dear Ms. Ayende: Due to the contract language for the 10625 S. Foothill Boulevard project, our contract with the City of Cupertino for the project will expire on June 30, 2021. Accordingly, we hereby request that the contract terms for the project be extended to June 30, 2022. We also request an additional budget of $850 due to the extended project schedule, additional budget needed for project administration, and increases in our standard billing rates (see attached 2021 billing rates). Approval of this additional budget will bring our total contract value for this project to $6,850. We are ready to sign your standard contract amendment. Please feel free to contact me if you have any questions. Thank you. Sincerely, HEXAGON TRANSPORTATION CONSULTANTS, INC. Brian Jackson Senior Associate Exhibit B-2 & C-1 Hexagon 2021 Billing Rates Professional Classification Rate per Hour President $290 Principal $250 Senior Associate II $230 Senior Associate I $215 Associate II $195 Associate I $175 Planner/Engineer II $155 Planner/Engineer I $125 Admin/Graphics $110 Senior CAD Tech $95 Technician $75 Direct expenses are billed at actual costs, with the exception of mileage, which is reimbursed at the current rate per mile set by the IRS. Billing rates shown are effective January 1, 2021 and subject to change January 1, 2022. Exh. D-Insurance Requirements for Design Professionals & Consultants 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. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultants Contracts 2 Form Updated Sept. 2019 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. The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNED AUTOS AUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ 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. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: 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 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 2/26/2021 RC Fischer Co 1301 Ygnacio Valley Rd #100 Walnut Creek CA 94596 April Carter 925-627-5466 925-932-0962 acarter@rcfischer.com The Travelers Indemnity Company of Connecticut 25682 HEXAG-1 Technology Insurance Company,Inc.42376HexagonTransportationConsultants,Inc. 4 North Second St.,#400 San Jose CA 95113 Argonaut Insurance Company 19801 The Travelers Indemnity Company 25658 Travelers Property Casualty Company of America 25674 2127655812 A X 2,000,000 X 1,000,000 5,000 2,000,000 4,000,000 X Y Y 6807H532991 3/1/2021 3/1/2022 4,000,000 D 1,000,000 XX BA9H798647 3/1/2021 3/1/2022 E X 5,000,000 X 0 CUP5819P929 X 5,000,000 3/1/2021 3/1/2022 B Y Y TWC3955285 3/1/2021 3/1/2022 X 1,000,000 1,000,000 1,000,000 C Professional Liability Claims-Made Form Retro Date:03/01/1998 121AE000328802 3/1/2021 3/1/2022 Each Claim Aggregate Deductible $2,000,000 $2,000,000 $5,000 30 days'notice of cancellation;10 days'notice of cancellation for non-payment of premium. City of Cupertino 10300 Torre Avenue Cupertino CA 95014 Named Insured: Hexagon Transportation Consultants, Inc. Policy No. 6807H532991 Named Insured: Hexagon Transportation Consultants, Inc. Policy No. 680-7H32991 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA 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.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 2% of the California workers' compensation premium otherwise due on such remuneration. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 04-84) Schedule Person or Organization Job Description Any person or organization as required by written contract. This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 3/1/2021 Policy No.TWC3955285 Endorsement No.0 Insured Hexagon Transportation Consultants, Inc.Premium $10,545 Insurance Company Technology Insurance Company, Inc. Countersigned by WC 04 03 06 (Ed. 04-84) 10625 S, Foothill Blvd. Final Audit Report 2021-07-27 Created:2021-07-20 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAZ_lOYHat2df3hZlo-o57Evrxp7yAmmEG "10625 S, Foothill Blvd." History Document created by City of Cupertino (webmaster@cupertino.org) 2021-07-20 - 9:01:39 PM GMT- IP address: 35.229.54.2 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2021-07-20 - 9:06:34 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2021-07-20 - 10:32:05 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Brian Jackson (bjackson@hextrans.com) for signature 2021-07-20 - 10:32:07 PM GMT Email viewed by Brian Jackson (bjackson@hextrans.com) 2021-07-22 - 3:05:21 AM GMT- IP address: 50.216.64.14 Document e-signed by Brian Jackson (bjackson@hextrans.com) Signature Date: 2021-07-22 - 3:07:16 AM GMT - Time Source: server- IP address: 50.216.64.14 Document emailed to heatherm@cupertino.org for signature 2021-07-22 - 3:07:18 AM GMT Document signing delegated to Christopher D. Jensen (ChristopherJ@cupertino.org) by heatherm@cupertino.org 2021-07-26 - 11:15:00 PM GMT- IP address: 35.229.54.2 Document emailed to Christopher D. Jensen (ChristopherJ@cupertino.org) for signature 2021-07-26 - 11:15:01 PM GMT Email viewed by Christopher D. Jensen (ChristopherJ@cupertino.org) 2021-07-26 - 11:16:34 PM GMT- IP address: 104.47.73.126 Document e-signed by Christopher D. Jensen (ChristopherJ@cupertino.org) Signature Date: 2021-07-26 - 11:17:33 PM GMT - Time Source: server- IP address: 136.24.42.212 Document emailed to Benjamin Fu (benjaminf@cupertino.org) for signature 2021-07-26 - 11:17:34 PM GMT Email viewed by Benjamin Fu (benjaminf@cupertino.org) 2021-07-27 - 2:25:09 AM GMT- IP address: 104.47.73.254 Document e-signed by Benjamin Fu (benjaminf@cupertino.org) Signature Date: 2021-07-27 - 2:27:13 AM GMT - Time Source: server- IP address: 24.130.171.172 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2021-07-27 - 2:27:15 AM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2021-07-27 - 2:29:59 AM GMT- IP address: 104.47.73.126 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2021-07-27 - 2:30:07 AM GMT - Time Source: server- IP address: 69.110.137.176 Agreement completed. 2021-07-27 - 2:30:07 AM GMT