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HomeMy WebLinkAbout26-057 Smith-Emery of San Francisco for Special Inspections & Materials Testing PO 2026-511Special Inspections & Materials Testing Page 1 of 9 Professional/Consulting Contracts /Version: March 2025 PROFESSIONAL/CONSULTING SERVICES AGREEMENT 1.PARTIES and Smith-Emery of San Francisco a Corporation for Special Inspections & . 2.SERVICES 2.1 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. 2.2 qualifications, or any other solicitation regarding a subsequent or additional contract with the City. The City shall at all times retain responsibility for public contracting, including with respect to ning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications. Contractor shall cooperate with the City to ensure that all bidders for a subsequent contract on any subsequent phase of this project have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by contractor pursuant to this agreement. 3.TIME OFPERFORMANCE 3.1 ThisAgreementbeginsontheEffectiveDateand Manager may extend the Contract Time through a written amendment to this Agreement, provided suchextensiondoesnot includeadditionalcontractfunds. Extensionsrequiringadditionalcontract 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 ontime. Special Inspections & Materials Testing Page 2 of 9 Professional/Consulting Contracts /Version: March 2025 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 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 without prior written approval ofCity. 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,Contractormustsubmitarequisitionforfinalandcompletepayment ofcostsandpending claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any further payment or other obligations under theAgreement. 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 City. 5.2 Qualifications.Contractorwarrants onbehalfofitself andits 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 theindustry. 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. Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approvedsubcontractor. 5.5 Tools, Materials, and Equipment.Contractor will supply all tools, materials and equipment required to perform the Services under thisAgreement. 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 no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Special Inspections & Materials Testing Page 3 of 9 Professional/Consulting Contracts /Version: March 2025 Agreement is determined by a court of competent jurisdiction, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City, and actual by City in connection with the above. 6.PROPRIETARY/CONFIDENTIALINFORMATION In performing this Agreement, Contractor may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details the disclosure of which to third parties may be damaging to City. Contractor shall hold in confidence all City information provided by City to Contractor and use it only to perform this Agreement. Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data. 7.OWNERSHIP OF MATERIALS 7.1 Property Rights.Anyinterest (includingcopyright interests)ofContractor inany product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium (collectively,prepared by Contractor in connection with this Agreement will be the exclusive propertyof the City upon completion of the work to be performed hereunder or upon termination of this Agreement, to the extent requested by City.Inanycase,noWorkProduct shall beshowntoanythird-partywithout priorwrittenapproval ofCity. 7.2 Copyright.To the extent permitted by Title 17 of the U.S. Code, all Work Product arising be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights. Cont approval. 7.3 PatentsandLicenses.Contractormustpayroyaltiesorlicensefees requiredforauthorized 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 mayuse or modifytheWorkProduct of Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of thefollowing: (a)The original Services for which Contractor was hired; (b)Completion of the original Services byothers; (c)Subsequent additions to the original Services; and/or (d)Other City projects. 7.5 DeliverablesandFormat.ContractormustprovideelectronicandhardcopiesoftheWork Product, on recycled paper and copied on both sides, except for one single-sidedoriginal. Special Inspections & Materials Testing Page 4 of 9 Professional/Consulting Contracts /Version: March 2025 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 liverables, which must be available to City for review and audit. The records and supporting documents must be kept separate from 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 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 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, 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 theServices; (c)Personalinjury,propertydamage,oreconomicloss resultingfromtheworkorperformance of Contractor or its subcontractors orsub-subcontractors; Special Inspections & Materials Testing Page 5 of 9 Professional/Consulting Contracts /Version: March 2025 (d)al and proprietaryInformation; (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 thirdparty. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept atenderofdefense uponreceivingnoticefrom Cityofathird- Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Agreement. 11.3 compensation payments, or the insurance or bond amounts required in the Agreement. Nothingin the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or anyIndemnitee. 11.4 a claim or counterclaim arising out of this Agreement, or 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 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 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 component, Contractor is required to complywith prevailing wage laws under Labor Code Section 1720 and other labor laws. Special Inspections & Materials Testing Page 6 of 9 Professional/Consulting Contracts /Version: March 2025 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,aCityemployee, 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. 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 officials and employees. 13.5 Remedies.Anyviolation 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 Jimmy Tan as 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 toContractor. Contractor Project Manager.Subject to City approval, Contractor assigns Patrick Morrison as its single Representative for all purposes under this Agreement, with authority to oversee the coordinatingandschedulingtheServices inaccordancewiththeScopeofServices andtheSchedule 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 newRepresentative. 15.ABANDONMENT OFPROJECT 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 -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 theServices. Special Inspections & Materials Testing Page 7 of 9 Professional/Consulting Contracts /Version: March 2025 16.TERMINATION Citymay 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 WorkProduct. 17.GOVERNING LAW, VENUE, AND DISPUTERESOLUTION This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue toprovide the Services pending resolution of thedispute. If the Parties elect arbitration, the award must be supported by law and substantial evidence and include detailed written findings of law and fact. 18.ATTORNEY FEES If Cityinitiates 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 andcosts. 19.THIRD PARTYBENEFICIARIES 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 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 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. Special Inspections & Materials Testing Page 8 of 9 Professional/Consulting Contracts /Version: March 2025 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/PARTIALINVALIDITY If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this Agreement to carry out its intent. 25.SURVIVAL All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law, and Attorney Fees, shall survive the Agreement and remain in full force and effect. 26.NOTICES All notices, requests and approvals must be sent in writing to the persons below, which will be considered effectiveon thedateofpersonal deliveryorthe date confirmed byareputableovernight 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 electronicsubmission: To City of Cupertino Office of the City Manager 10300 Torre Ave. Cupertino, CA 95014 Attention: Jimmy Tan Email: JimmyT@cupertino.org To Contractor: Smith-Emery of San Francisco P.O. Box 512333 Los Angeles CA 90051 Attention: Patrick Morrison Email: pmorrison@smithemerysf.com 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. SIGNATURES CONTINUE ON THE FOLLOWING PAGE ANY PROPRIETOR/PARTNER/EXECUTIVEOFFICER/MEMBER EXCLUDED? INSR ADDL SUBRLTR INSD WVD PRODUCER CONTACTNAME: FAXPHONE(A/C, No):(A/C, No, Ext): E-MAILADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATIONAND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER: $ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH-STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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. 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). COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 1/26/2026 License # 0E67768 (626) 243-9135 (626) 568-2886 41718 Smith-Emery of San Francisco, Inc. 1940 Oakdale Avenue San Francisco, CA 94124 10046 5,000,000A ELD30084260300 4/1/2025 4/1/2026 5,000,000 0 B Professional Liab. 57OH049002925 1/31/2025 Each Claim/Aggregate 2,000,000 B Professional Liab. 57OH049002925 1/31/2025 7/31/2026 Aggregate 2,000,000 RE: Special Inspections EV Charging Stations City's Service Center - Corporation Yard City of Cupertino 10555 Mary Avenue Cupertino, CA 95014 SMITEME-01 JOHANSINGM IOA Insurance Services130 Vantis Suite 250Aliso Viejo, CA 92656 Molly Johansing Molly.Johansing@ioausa.com Endurance American Specialty Insurance Company Pacific Insurance Company, Limited 7/31/2026 X X X