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18-202 Hexagon Transportation Consultants, Inc., Trip generation study and site analysis for 10625 S. Foothill Blvd1 SECOND AMENDMENT TO AGREEMENT 18-202 BETWEEN THE CITY OF CUPERTINO AND HEXAGON TRANSPORTATION FOR TRIP GENERATION STUDY AND SITE ACCESS ANALYSIS FOR 10625 FOOTHILL BLVD This Second Amendment to Agreement 18-202 between the City of Cupertino and Hexagon Transportation Consultants, Inc., for reference dated 5/27/2020, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and Hexagon Transportation Consultants, Inc, a Corporation (“Consultant”) whose address is 4 North Second Street, Suite 400, San Jose, CA 95113 and is made with reference to the following: RECITALS: A. On 9/20/2018, Agreement 18-202 (“Agreement”) was entered into by and between City and Consultant for trip generation study and site access analysis for 10625 Foothill Blvd. B. On 6/10/2019, City and Consultant entered into a First Amendment to the Agreement. C. The Agreement and First Amendment are collectively referred to as the “Agreement,” unless otherwise indicated. D. 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 2 of the Agreement is modified as follows: SERVICES 2.1 Basic Services. Consultant agrees to provide the Basic Services for the Project, which are set forth in detail in the Scope of Services, attached here and incorporated as Exhibit A, and as further specified in Consultant's written Proposal as approved by City, except for any provision in the Proposal which conflicts or is inconsistent with this Agreement and the Exhibits hereto, or as otherwise expressly rejected by City. Consultant further agrees to carry out its work in compliance with the City’s Shelter in Place and Social Distancing Guidelines Requirements, attached here and incorporated as Exhibit A-A. 2.2 Additional Services. City may request at any time during the Contract Time that Consultant provide additional services for the Project, which are not already encompassed, expressly or implicitly, in the Agreement, the Scope of Services, or the Proposal ("Additional Services"). Additional Services must be authorized in writing by City and Consultant will not be paid for unauthorized Additional Services rendered. 2 Additional Services are subject to all the provisions applicable to Basic Services, except and only to the extent otherwise specified by City in writing. All references to "Services" in the Agreement include Basic Services and Additional Services, unless otherwise stated in writing. The Services may be divided into separate sequential tasks, as further specified in this Agreement, the Scope of Services, and Consultant's Proposal. Consultant is solely responsible for its errors and omissions and those of its subconsultants and must promptly collect them at its sole expense. Consultant must take appropriate measures to avoid or mitigate any delay, liability, and costs resulting from its errors or omissions. 2. Exhibit A-A, attached hereto, is added to the Agreement. 3. Paragraph 3 of the Agreement is modified to read as follows: TIME OF PERFORMANCE 3.1 Term. This Agreement begins on Effective Date and ends on June 30, 2021, 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-1, 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. 4. Exhibit B-1, attached hereto, is added to the Agreement to replace Exhibit B. 5. Exhibit D to the Agreement is replaced with the revised Exhibit D, attached hereto. 6. 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. CONSULTANT By Title Date CITY OF CUPERTINO By Title Community Development Director Date APPROVED AS TO FORM City Attorney ATTEST: City Clerk EXPENDITURE DISTRIBUTION PO #2019-310 100-71-701-701-701 Original $6,000 Amendment #1: $0 Amendment #2: $0 Total: $6,000 1248514.1 Brian Jackson Heather M. Minner Kirsten Squarcia 6/5/20 May 27, 2020 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 20565 Valley Green Public Storage project and the 10625 S. Foothill Boulevard project, our contracts with the City of Cupertino for both projects will expire on June 30, 2020. Accordingly, we hereby request that the contract terms for both projects be extended to June 30, 2021 with no changes to the current budgets for these projects. Please feel free to contact me if you have any questions. Thank you. Sincerely, HEXAGON TRANSPORTATION CONSULTANTS, INC. Brian Jackson Senior Associate Exhibit B-1 Revised: April 30, 2020 – Services Agreements 1 Exhibit A-A – SHELTER IN PLACE AND SOCIAL DISTANCING REQUIREMENTS A. Health Laws Acknowledged. It is acknowledged that Consultant’s/Contractor’s (“Contractor”) duty to comply with Laws, as defined in Section 13 of the Contract/Agreement (“Contract”), includes immediate compliance by Contractor and its subcontractors with the restrictions on travel and the Social Distancing Requirements set forth in the most recent health order issued by the County of Santa Clara Health Department in response to the COVID-19 pandemic, and any subsequent amendments or superseding orders thereto (the “Health Order”), and any other local, state, or federal laws that have been or may be enacted in response to the COVID-19 pandemic (collectively, “Health Laws”). B. Health Order Compliance. Contractor shall comply with any restrictions on travel and social distancing requirements in the Health Order when preforming work under this Contract. If a scope of work item, notice to proceed, or work order under this Contract specifies work that cannot be performed in compliance with the Health Order or other Health Laws, Contractor shall refrain from conducting the work and immediately inform the City. C. Individuals at High Risk of Severe Illness. Nothing in this Contract shall be interpreted to require any person at high risk of severe illness from COVID-19 to leave their residence to perform work under the Contract. Contractor will inform the City if other arrangements for the work must be made, and City will do so, with no penalty to Contractor, although Contractor will not be compensated for work performed by the City or third parties. Information from the Center for Disease Control (“CDC”) on “high risk” categories is available at the CDC's website at: https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-at-higher-risk.html. D. Health Order Requirements and Best Practices. Contractor will immediately undertake all appropriate measures to ensure compliance with the Social Distancing Requirements in the Health Order by all individuals performing work under this Contract, including Contractor's or any subcontractor's workers, employees, representatives, vendors, or suppliers (collectively, "workers"), and shall maintain these measures for as long as required by the Health Order or other Health Laws. As long as required by the operative Health Order or other Health Laws, these measures shall include, but are not limited to, the following: 1. Meetings/Site Access. Use electronic alternatives to in person meetings, e.g., conference calls, video-conferencing, etc., to the greatest extent possible. Limit access to any project site or any work area to workers who are necessary to perform in-person work. Require non-essential personnel to work from home to the extent possible. Avoid all non-essential travel. 2. Distancing. Where workers perform in-person work at a project site or a work area, prohibit workers from being less than six feet apart, unless and only to the extent that would compromise worker safety or violate safety Laws for specific operations. Prohibit handshaking or any physical contact among workers, with the sole and limited exception Revised: April 30, 2020 – Services Agreements 2 of any physical contact required for worker safety or to comply with safety Laws. Prohibit workers from sharing a vehicle. E. Changed Requirements. It is understood and acknowledged that circumstances pertaining to the COVID-19 pandemic are evolving rapidly and that new local, state, or federal requirements may modify the requirements under this Exhibit. Contractor agrees to work cooperatively with the City to implement new or changed requirements as quickly as possible. F. Subcontracts. Contractor shall include the terms of this Exhibit in all subcontracts and require any agents, subcontractors, or subconsultants to comply with its provisions. 1229192.7 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-OWNEDAUTOSAUTOS 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. 2/28/2020 RC Fischer Co 1301 Ygnacio Valley Rd #100 Walnut Creek CA 94596 Samantha Dutra 925-627-5467 925-932-0962 sdutra@rcfischer.com The Travelers Indemnity Company of Connecticut 25682 HEXAG-1 Technology Insurance Company, Inc.42376Hexagon Transportation Consultants, 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 1980952885 A X 2,000,000 X 1,000,000 5,000 2,000,000 4,000,000 X Y Y 6807H532991 3/1/2020 3/1/2021 4,000,000 D 1,000,000 XX BA9H798647 3/1/2020 3/1/2021 E X 5,000,000 X 0 CUP5819P929 X 5,000,000 3/1/2020 3/1/2021 B Y Y TWC3855981 3/1/2020 3/1/2021 X 1,000,000 1,000,000 1,000,000 C Professional Liability Claims-Made Form AE000328801 3/1/2020 3/1/2021 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 3/1/2020 Policy No. TWC3855981 Endorsement No. 0 Insured Hexagon Transportation Consultants, Inc.Premium $ 6,419 Insurance Company Technology Insurance Company, Inc. Countersigned by WC 04 03 06 (Ed. 04-84) 2nd Amendment - 10625S.FoothillBlvd_final Final Audit Report 2020-06-05 Created:2020-06-02 By:Abby Ayende (AbigailA@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAqim5KYX_DiBWSG2abYy4QHZOqt-8vJNi "2nd Amendment - 10625S.FoothillBlvd_final" History Document created by Abby Ayende (AbigailA@cupertino.org) 2020-06-02 - 8:22:04 PM GMT- IP address: 108.204.1.114 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2020-06-02 - 8:23:21 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2020-06-02 - 8:42:14 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Brian Jackson (bjackson@hextrans.com) for signature 2020-06-02 - 8:42:15 PM GMT Email viewed by Brian Jackson (bjackson@hextrans.com) 2020-06-03 - 8:45:42 AM GMT- IP address: 50.254.152.153 Document e-signed by Brian Jackson (bjackson@hextrans.com) Signature Date: 2020-06-03 - 8:49:40 AM GMT - Time Source: server- IP address: 50.254.152.153 Document emailed to Heather M. Minner (heatherm@cupertino.org) for signature 2020-06-03 - 8:49:42 AM GMT Email viewed by Heather M. Minner (heatherm@cupertino.org) 2020-06-05 - 9:06:24 PM GMT- IP address: 45.41.142.15 Document e-signed by Heather M. Minner (heatherm@cupertino.org) Signature Date: 2020-06-05 - 9:07:03 PM GMT - Time Source: server- IP address: 52.39.49.65 Document emailed to Benjamin Fu (benjaminf@cupertino.org) for signature 2020-06-05 - 9:07:05 PM GMT Email viewed by Benjamin Fu (benjaminf@cupertino.org) 2020-06-05 - 9:15:55 PM GMT- IP address: 104.47.46.254 Document e-signed by Benjamin Fu (benjaminf@cupertino.org) Signature Date: 2020-06-05 - 9:16:11 PM GMT - Time Source: server- IP address: 24.130.171.172 Document emailed to Kirsten Squarcia 6/5/20 (kirstens@cupertino.org) for signature 2020-06-05 - 9:16:13 PM GMT Email viewed by Kirsten Squarcia 6/5/20 (kirstens@cupertino.org) 2020-06-05 - 9:18:34 PM GMT- IP address: 104.47.45.254 Document e-signed by Kirsten Squarcia 6/5/20 (kirstens@cupertino.org) Signature Date: 2020-06-05 - 9:18:57 PM GMT - Time Source: server- IP address: 148.64.105.190 Signed document emailed to Kirsten Squarcia 6/5/20 (kirstens@cupertino.org), Heather M. Minner (heatherm@cupertino.org), Brian Jackson (bjackson@hextrans.com), cyrahc@cupertino.org, and 3 more 2020-06-05 - 9:18:57 PM GMT CITY OF a CUPERTINO DESIGN PROFESSIONAL SERVICES AGREEMENT (SINGLE) WITH HEXAGON TRANSPORTATION CONSULTANTS, INC 10625 S FOOTHILL BL VD DEVELOPMENT. 1. PARTIES This Agreement is made and entered into as of_S_e~p_te_m_b_e_r_2_0~,_2_0_1_8 ____________ _ ("Effective Date"), by and between the City of Cupertino, a municipal corporation ("City"), and Hexagon Transportation Consultants, Inc ("Consultant"), a Corporation for trip generation study and site access analysis for 10625 S. Foothill Blvd _______________________________ ("Project"). 2. SERVICES 2.1 Basic Services. Consultant agrees to provide the Basic Services for the Project, which are set forth in detail in the Scope of Services, attached here and incorporated as Exhibit A, and as further specified in Consultant's written Proposal as approved by City, except for any provision in the Proposal which conflicts or is inconsistent with this Agreement and the Exhibits hereto, or as otherwise expressly rejected by City. 2.2 Additional Services. City may request at any time during the Contract Time that Consultant provide additional services for the Project, which are not already encompassed, expressly or implicitly, in the Agreement, the Scope of Services, or the Proposal ("Additional Services"). Additional Services must be authorized in writing by City and Consultant will not be paid for unauthorized Additional Services rendered. Additional Services are subject to all the provisions applicable to Basic Services, except and only to the extent otherwise specified by City in writing. All references to "Services" in the Agreement include Basic Services and Additional Services, unless otherwise stated in writing. The Services may be divided into separate sequential tasks, as further specified in this Agreement, the Scope of Services, and Consultant's Proposal. Consultant is solely responsible for its eITors and omissions and those of its subconsultants, and must promptly co1Tect them at its sole expense. Consultant must take appropriate measures to avoid or mitigate any delay, liability, and costs resulting from its e1Tors or omissions. 3. TIME OF PERFORMANCE 3.1 Term. This Agreement begins on the Effective Date and ends on June 30 2019 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, 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 delays. 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. Project I 0625 S. Foothill Blvd Design Professional Agreement (single) !Rev. May. 2018 Page I of 10 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. 4. 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 $ 6000 ("Contract Price"), as specified in Exhibit C, Compensation , attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place ev en 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 $ 6000 ("Lump Sum Price") for the complete and satisfactory performance of the Basic Services in accordance with Exhibit C. The Lump Sum Price is inclusive of all time and e xpenses , 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. 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. 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. Projec t 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 performed 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 permitted reimbursable expenses. /0625 S. Foo th ill Blvd Des ig n Profe ssional Agree ment (si ng le) /Rev. May. 20 18 P age 2 of 10 b. Rates and Receipts. All hourly rates and reimbursable expenses must conform to the City- approved rates set forth in Exhibit C , which will be in effect for the entire Contract Time . Each invoice must attach legible, dated receipts for Reimbursable Expenses . 5. INDEPENDENT CONTRACTOR 5.1 Status. Consultant is an independent Consultant and not an employee, partner, or joint venture of the City . Consultant is solely responsible for the means and methods of performing the Services and shall exercise full control over the employment, direction, compensation and discharge of all persons assisting Consultant in performing the Services. Consultant is not entitled to health benefits , worker's compensation, retirement, or any City benefit. 5.2 Qualifications and Standard of Care. Consultant represents on behalf of itself and its subConsultants that they have the qualifications and skills to perfom1 the Services in a competent and professional manner, as exercised by design professionals perfo1ming similar services in the San Francisco Bay Area. Services may only be performed by qualified and experienced personnel or subconsultants who are not employed by City and do not have any contractual relationship with City excepting this Agreement. All Services must be performed as specified to City's reasonable satisfaction. 5.3 Permits and Licenses. Consultant warrants on behalf of itself and any subConsultants that they are properly licensed, registered, and /or certified to perform the Services , as required by law, and that they have procured a valid City Business License. 5.4 SubConsultants. Unless prior written approval from City is obtained , only Consultant's employees and subConsultants whose names are included in this Agreement and incorporated Exhibits may provide Services under this Agreement. Consultant must require all subConsultants to furnish proof of insurance for workers ' compensation, commercial liability, auto , and professional liability in reasonable conformity to the insurance required of Consultant. The terms and conditions of this Agreement shall be binding on all subConsultants relative to the portion of their work. 5.5 Tools, Materials and Equipment. Consultant will supply and shall be responsible for all tools, materials and equipment required to perform the Services under this Agreement. 5.6 Payment of Taxes. Consultant must pay income taxes on the money earned under this Agreement. Upon City's request , Consultant will provide proof of payment and will indemnify City for any violations pursuant to the indemnity provision of this Agreement. 5. 7 Errors and Omissions. Consultant is solely responsible for its errors and omissions and those of its SubConsultants , and must take prompt measures to avoid, mitigate , and conect them at its sole expense. 6. PROPRIETARY/CONFIDENTIAL INFORMATION During the Contract Time Consultant 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. Consultant shall hold in confidence all City information and use Proj ec t I 062 5 S. Fo othill Blvd Design Profess ional Agree ment (si ng le) !R ev . May. 20 18 P age 3 of 10 it only to perform this Agreement. Consultant shall exercise the same standard of care to protect City information as a reasonably prudent Consultant would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Subject to City meeting its payment obligations for the Services, any interest (including copyright interests) of Consultant in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium, prepared by Consultant under this Agreement ("Work Product"), will be the exclusive property of the City and shall not be shown to a third-party without prior written approval by City 7.2 Copyright. To the extent permitted by Title 17 of U.S. Code, all copyrights to the Work Product prepared/created by Consultant and its SubConsultants and all copyrights in such Work Product shall constitute City property. If it is determined under federal law that the Work Product is not "works for hire", Consultant and SubConsultants hereby assign to City all copyrights to the Work Product when and as created. Consultant may retain copyrights to its standard details, but hereby grants City a perpetual, non-exclusive license to use such details. 7.3 Patents and Licenses. Consultant must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented, trademarked, or copyrighted intellectual property if incorporated into the Services or Work Product of 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 Consultant and its SubConsultants to execute or implement any of the following, but Consultant shall not be responsible or liable for City's re-use of Work Product: (a) For work related to the original Services for which Consultant was hired; (b) To complete the original Services with City personnel, agents or other Consultants; (c) To make subsequent additions to the original Services; and/or (d) For other City projects. 7.5 Deliverables and Format. Electronic and hard copies of the Work Product constitute part of the Deliverables required under this Agreement, which shall be provided to City on recycled paper and copied on both sides, except for one single-sided original. Large-scale architectural plans and similar items must be in CAD and PDF formats, and unless otherwise specified, other documents must be in Microsoft Office applications and PDF formats. 8. RECORDS 8.1 Consultant must maintain complete, accurate, and detailed accounting records relating to the Services and Compensation, in accordance with generally accepted accounting principles and procedures. The records must include detailed information about Consultant's performance, benclunarks and deliverables. The records and supp01iing documents must be kept separate from other files and maintained for a period of four years from the date of City's final payment. 8.2 Consultant will provide City full access to Consultant's books and records for review and audit, to make transcripts or copies, and to conduct a preliminary examination of all the work, data, documents, proceedings, and activities related to this Agreement. If a supplemental examination or Project 10625 S. Foothill Blvd Design Professional Agreement (single) /Rev. May . 2018 Page 4 of 10 audit of Consultant's records discloses non-compliance with appropriate internal financial controls, a contract breach, or a failure to act in good faith, City will be entitled to recover from Consultant the costs of the supplemental examination. If this is a lump sum fee Agreement, City will be provided access to records of reimbursable expenses and the instruments of service/deliverables for review and audit. This Section survives the expiration/termination of this Agreement. 9. ASSIGNMENT Consultant shall not assign, sublease , hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation oflaw or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Consultant as a legal entity will be considered an Assignment subject to City approval, which shall not be unreasonably withheld. For purposes of this provision, control means 50% or more of the voting power of the business entity. This Agreement binds Consultant, its heirs, successors and assignees. 10. PUBLICITY/ SIGNS Any publicity generated by Consultant for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the City's contributions in making the project possible. The words "City of Cupertino" will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews and newspaper articles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Agreement, without prior written approval from the City. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law and except for losses caused by the sole or active negligence or willful misconduct of City personnel, Consultant agrees to indemnify, defend, and hold harmless the City, its City Council , boards and commissions, officers, officials , employees, agents, servants, volunteers and consultants (collectively, "Indemnitees"), as follows: a. Indemnity Obligations Subject to Civil Code Section 2782.8. With respect to the Services performed in connection with the Agreement, Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any and all liability, claims, actions, causes of action, demands or charges whatsoever against any Indemnitee, including any injury to or death of any person or damage to property or other liability of any nature (collectively, "Liability"), that arise out of, pe1tain to, or relate to the negligence, recklessness, or willful misconduct of Consultant, its officers, officials, employees, agents or SubConsultants. Such costs and expenses shall include reasonable attorney fees for legal counsel of City's choice, expert fees, and all other costs and fees of litigation. In addition to its indemnity obligations, Design Professional will provide its immediate and active cooperation and assistance to the City, at no additional cost to the City, in analyzing, defending, and resolving such Liability. b. Claims Involving Intellectual Property. Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any claim involving intellectual property, infringement or violation of a United States patent right or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights, which arises out of, pe1tains to, or relates to Consultant's Project 10625 S. Foothill Blvd Design Professional Agreement (single) /Rev. May. 2018 Page 5 of 10 negligence , recklessness, or willful misconduct. Such costs and expenses will include reasonable attorn ey fees for legal counsel of City's choice , expert fees and all other costs and fees oflitigation. c. Claims for Other Liability. For all other liabilities not included in provisions "b" and "c" above , Consultant shall indemnify , defend , and hold harmless the Indemnitees against any and all liability, claims , actions , causes of action or demands whatsoever, including any injury to or death of any person or damage to property , or other liability of any nature arising out of, pertaining to , or relating to the performance of this Agreement by Design Professional, its employees , officers , officials , agents or subconsultants , including liability based on breach of contract, obligations , or warranties, or any unauthorized use or disclosure of City 's confidential and proprietary information. 11.2 Consultant will assist City , at no additional cost, in the defense of any claim, dispute or lawsuit arising out of this Agreement. Consultant's duties herein are not limited to or subject to the Contract Price , to Workers' Compensation claims, or to the Insurance or Bond limits and provisions . Nothing in this Agreement shall be construed to give rise to an implied right of indemnity in favor of Consultant against any Indemnitee. 11.3 If this Agreement is entered into or amended on or after January 1, 2018, Consultant's duty to pay for any oflndemnitees' defense related costs will be limited to its proportionate share of fault , as determined by final decision by a court of competent jurisdiction, subject to any applicable exceptions in Civil Code section 2782.8. 11.4 Consultant agrees to pay the reasonable costs City may incur in enforcing this provision related to Consultant's indemnification duties, including reasonable attorney fees, fees for legal counsel acceptable to City , expert fees, and all other costs and expenses related to a claim or counterclaim, a purchase order, another transaction, litigation, or dispute resolution. Without waiving any rights , City may deduct money from Consultant's payments to cover moneys due to City. Section 11 survives expiration or termination of this Agreement. 12. INSURANCE On or before the Contract Time commences, Consultant shall furnish City with proof of compliance with City Insurance Requirements, attached and incorporated here as Exhibit D. City will not execute the Agreement until Consultant has submitted and City has reasonably approved receipt of satisfactory certificates of insurance and endorsements evidencing the type , amount, class of operations covered, and the effective and expiration dates of coverage. Alternatively , City may terminate this Agreement or in its sole discretion purchase insurance at Consultant's expense and deduct costs from payments to Consultant. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Consultant shall comply with all laws and regulations applicable to this Agreement. Consultant will promptly notify City of changes in the law or other conditions that may affect the Project or Consultant's ability to perform. Consultant is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Refo1m and Control Act , or other federal or state law, rule or regulation. Proj ect 10625 S Footh ill Blvd Design Pr ofe s sional Agree ment (sing le) /Rev. May . 20 18 Page 6 o f 10 13.2 Labor Laws. Consultant shall comply with all labor laws applicable to this Agreement. If the Services include a "public works" component, Consultant must comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. To the extent applicable, Consultant must comply with City's Labor Compliance Program and with state labor laws pertaining to working days, overtime, payroll records and DIR Registration and Oversight. If the Contract Price is $30,000 or more, Consultant must comply with the apprenticeship requirement in Labor Code Section 1777.5. 13.3 Discrimination Laws. Consultant shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Consultant shall comply with all anti-discrimination laws, including Government Code Section 12900 and 11135, and Labor Code Section. 1735, 1777 and 3077.5. Consistent with City policy prohibiting, Consultant understands that harassment and discrimination by Consultant or any of its subConsultants toward a job applicant, an employee, a City employee , or any other person is strictly prohibited. 13.4 Conflicts of Interest. Consultant shall comply with all conflict of interest laws and regulations applicable to this Agreement and must avoid any conflict of interest. Consultant warrants that no public official, employee , or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement in violation of California Government Code Section 1090 et seq. Consultant may be required to file a conflict of interest form if Consultant makes certain governmental decisions or serves in a staff capacity, as provided in Section 18700 of the California Code of Regulations and other laws. Services may only be performed by persons who are not employed by City and who do not have any contractual relationship with City, with the exception of this Agreement. Consultant is familiar with and agrees to abide by the City's rules governing gifts to public officials and employees. 13.5 Remedies. A violation of this Section constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating this Agreement. City reserves all its rights and remedies under law and this Agreement, including the right to seek indemnification under Section 11. Consultant agrees to indemnify, defend, and hold City harmless from and against any loss, liability, and expenses arising from noncompliance with this Section. 14. PROJECT COORDINATION 14.1 City Project Manager. The City's Project Manager for all purposes under this Agreement will be Erick Serrano , who shall have the authority to manage this Agreement and oversee the progress and perfonnance of the Services. City in its sole discretion may substitute another Project Manager at any time and will advise Consultant of the new representative. 14.2 Consultant Project Manager. Subject to City's reasonable approval, Consultant's Project Manager for all purposes under this Agreement will beB __ n_· a_n_J_a_c_k_so_n ___________ _ who shall be the single representative for Consultant with the authority to manage compliance with this Agreement and oversee the progress and performance of the Services. This includes responsibility for coordinating and scheduling the Services in accordance with City instructions, service orders, and the Schedule of Performance, and providing regular updates to the City's Project Manager on the Project status, progress, and any delays. City written approval is required prior to Consultant substituting a new Project Manager, which shall result in no additional costs to City or Project delays. Project 10625 S. Foothill Blvd Design Professional Agreement (single) /Rev. May . 2018 Page 7 of 10 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project with thirty (30) calendar days written notice to Consultant. Consultant will be compensated for satisfactory Services performed through the date of abandonment and will be given reasonable time to assemble the work and close out the Services. No close out work shall be conducted without City reasonable approval of closure costs, which may not exceed ten percent (10%) of the total time expended to the date of abandonment. All charges including job closure costs will be paid in accordance with the provisions of this Agreement and within thirty (30) days of Consultant's final invoice reasonably approved by the City. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time, following reasonable written notice to Consultant at least thirty (30) calendar days prior to the termination date. Consultant will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Consultant closes out the Services and delivers all Work Product to City. All charges approved by City including job closure costs will be paid within 30 days of Consultant's final invoice. 17. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California, excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Consultant must comply with the claims filing requirements under the Government Code prior to filing a civil action in court against City. The Agreement and obligations of the parties are subject to all valid laws , orders , rules , and regulations of the authorities having jurisdiction over this Agreement ( or the successors of those authorities). If a dispute arises, Consultant must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator's award must be supported by law and substantial e vidence and include detailed written findings of law and fact. 18. ATTORNEY FEES If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal or other proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs. This Section survives the expiration/termination of this Agreement. 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 any breach shall not be deemed to constitute waiver of another term , provision, covenant or condition, or a subsequent breach, whether of the same or a different character. Proj ect 10625 S. Fo othill Blvd Des ign Pr ofe ssional Agree ment (s ing le) /Rev. May. 201 8 Page 8 of 10 21. ENTIRE AGREEMENT This Agreement and all its Sections represent the full and complete understanding of the Parties, of every kind or nature , and supersedes any and all other agreements and understandings , either oral or written, between them. Any modification of this Agreement will be effective only if in writing and signed by each Paity 's authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between this main Agreement and the attachments or exhibits thereto , the text of the main Agreement shall prevail. 22. INSERTED PROVISIONS Each contractual provision or clause that may be required by law is deemed to be included and will be inferred in this Agreement. Either party may request an amendment to cure any mistaken insertion or omission of a required provision. 23. HEADINGS The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect , limit, or amplify the terms or provisions of this Agreement. 24. SEVERABILITY IP ARTIAL INVALIDITY If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. 25. SURVIVAL All provisions which by their nature must continue after the Agreement ends, including without limitation those referenced in specific Sections herein, survive this Agreement and shall remain in full force and effect. 26. NOTICES All notices, requests and approvals must be sent to the persons below in writing to the persons below, and will be considered effective on the date of personal delivery , the delivery date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or ce1tified , or the next business day following electronic submission: To City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Erick Serrano Email: ericks@cupertino .org Pr oject 1062 5 S. Fo othill Blvd To Consultant: Hexagon Transportation Consultants , Inc 4 N Second St., Suite 400 San Jose CA 95113 Attention: Brian Jackson Email: bjackson@hextrans .com De s ign Professional Agree ment (s ing le) /Rev. May. 201 8 Page 9 of 10 27. VALIDITY OF CONTRACT This Agreement is valid a:nd enforceable only if it complies with the contract provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, is signed by the City Manager or autho1ized designee, and is approved for form by the City Attorney 's Office. 28 . EXECUTION The person executing this Agreement on behalf of Consultant represents and warrants that Consultant has the right, power, and authority to enter into this Agreement and carry out all actions herein, and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Consultant. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the Effective Date stated earlier in this Agreement. CONSULTANT Hexagon Transportation Consu ltants , Inc ~ By e_ . Na~ Title Senior Associate Date September 24, 20 I 8 Tax 1.D. No.: 77-0478675 CITY OF CUPERTINO A Municipal ~ By ~ ~ Name ----------- Title Assistant City Manager Date lo/(J;/6 ~TO FORM:~ c) ,} ; !J . l . t ~ ; ;o .'-j11 Cupertino Acting City Attorney ATT_EST: ~/) ~tfj to,t·lo GRACE SCHMIDT City C lerk Project 1062 5 S. Foothill Blvd Design Profe s s ional Ag reement (~ingl e) !Rev. May. 2018 Page 10 of 10 EXHIBIT A ~~XAGON T~AN~PO~TATION (ONSUlTANTS, INC. July 26, 2018 Mr. Erick Serrano Assistant Planner City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Re: Proposal to Prepare a Trip Generation Study and Site Access Analysis for a Proposed Mixed-Use Development at 10625 S. Foothill Boulevard in Cupertino, California Dear Mr. Serrano: Hexagon Transportation Consultants, Inc . is pleased to submit this proposal to prepare a site access and trip generation study for a proposed mixed-use project at 10625 S. Foothill Boulevard in Cupertino, California. As proposed, the project would involve demolishing the existing commercial buildings on the approximately 1.4-acre site and constructing 18 residential units and 4,536 square feet (s.f.) of commercial space. Scope of Services The purpose of the transportation study is to determine the number of weekday AM and PM peak hour trips generated by the proposed mixed-use project, and to identify any potential site access or on-site circulation issues that could occur as a result of the project. The City of Cupertino typically does not require preparation of a comprehensive transportation study that includes an intersection level of service analysis for projects deemed "small". For small projects, a trip generation analysis usually is sufficient. The reason the City typically does not require more extensive traffic analysis for small projects is because once the project-generated trips are assigned to the roadway network based on the inbound and outbound splits, the trips disperse, and the number of new trips added to any one intersection is effectively negligible. Based on the preliminary AM and PM peak hour trip generation estimates shown in Table 1, the small project would not add 10 new trips or more per lane to any intersection in the study area. Thus, based on the 10 trips/lane rule of thumb, no intersection would require a level of service analysis. The tasks to be included in the traffic analysis are: 1. Project Trip Generation. The AM and PM peak hour vehicular trips generated by the proposed project will be determined using the appropriate trip rates published in the Institute of Transportation Engineers' (ITE) Trip Generation Manual, 10th Edition (2017). Trips generated by the bike shop currently operating on the site will be determined based on driveway counts. The project will receive credit for these existing trips. The project- generated trips will be assigned to the site driveways. 2. Site Access and On-Site Circulation. A site circulation and access review will be conducted to determine the adequacy of the existing site driveways and parking layout in accordance with generally accepted traffic engineering standards and City design standards. An analysis of on-site vehicle operations and queuing at the project driveways will be included. Pedestrian and bicycle access and circulation also will be evaluated . 4 North Second Street, Suite 400 · San Jose, California 95113 · phone 408 .971 .6100 · fa x 408.971.6102 · www.he xtrans.com 1111"" ""111111 Mr. Erick Serrano July 26, 2018 ......, 4 Page 2 of 3 EXHIBIT B &C 3. Reports. Our methods, findings and recommendations will be summarized in a draft traffic memo. The traffic memo will be submitted electronically. Hexagon Transportation Consultants will respond to editorial comments and prepare a final traffic memo. Hard copies of the final traffic memo can be provided upon request. Table 1 Preliminary Trip Generation Estimates AM Peak Hour PM Peak Hour ----------------D a ii y Daily Pk-Hr Pk-Hr Land Use Size Rate Trips Rate In Out Total Rate In Out Total Proposed Uses Residential 1 18 units 7.3 2 132 0.46 2 7 9 0.56 6 4 10 Residential & Retail Internal Capture (15%) 3 /20) 0 /1) /1) (1) (1) (2) Retail/Commercial 2 4,536 s.f. 37.75 171 0.94 3 2 5 3.81 8 9 17 Residential & Retail Internal Capture (15%) 3 /20) (1) 0 (1) (1) /1) (2) Retail Pass-By Redu ction (17 %Daily/0%A!ll34%PM) 4 ...EL 0 0 0 /3) (3) /6) Proje ct Subtotal : 237 4 8 12 9 8 17 Existing Occupied Uses Cupertino Bike Shop 5 0 0 0 0 0 0 0 Net New Trips: 237 4 8 12 9 8 17 Notes : 1 Trip generation based on average rates contai ned in the /TE Trip Generation Manual , 10th Editi on, for Multifamily Housing Low-Rise (Land Use 220) lo cated in a General Urban /Suburban setting . Rates are expressed in trips per unit. 2 Trip generation based on averag e rates contained in the /TE Trip Generation Manual, 10th Edition , for Shopping Center (Land Use 820). Rates are expressed in trips per 1 ,000 s .f. 3 A 15% residential/retail mixed-use trip reduction was applied to the project per the 2014 Santa Clara VTA TIA Guidelines . The 15 % redu ctio n was first app li ed to the smaller of the two generators . The same number of trips were subtracted from the larger of the two generators to account for both trip ends . 4 PM peak hour pass-by trip reduction base d on ITE Trip Generation Handbook (Third Ed ition). There is no AM peak hour pass -b y trip reduction for these land uses . Daily pass-by trip reduction percentage assumed to be average of AM and PM pass-by reduction. 5 Trips generated by the exis ti ng occu p ied bike shop (i .e., trip credits) wi ll be dete rmin ed based on counts . Additional Services Any work not specifically referenced in the above Scope of Work-for example (but not limited to) analyzing a different project description or project alternatives, conducting additional counts, analyzing intersections or roadways, analyzing different phases of development, protracted project schedule, attending any meetings, drawing conceptual plans for any proposed improvements, conducting a parking study, or preparing a TOM Plan to support a reduction in trip generation and/or parking supply-shall be considered additional services . Additional services shall be provided upon authorization and will require additional budget and time. Schedule and Budget The cost for services rendered under this agreement is quoted for a lump sum amount of $6,000. Billings will be conducted monthly, on a percent complete basis. This price quote is good for 30 days and assumes that all project-related activities will be completed within one year. Extended project schedules may require additional budget for project administration . IIJIII"" ""lllill Mr. Erick Serrano July 26, 2018 1111,.., A Page 3 of 3 Barring any unforeseen delays, a draft traffic memo will be submitted approximately four weeks after receipt of a signed contract agreement and all necessary data from City of Cupertino staff, including a complete project description and detailed site plan. The final traffic memo will be delivered one week after receipt of all comments. We are ready to sign your standard contract agreement. We look forward to working with you and appreciate your consideration of Hexagon Transportation Consultants, Inc. for this assignment. If you have any questions, please do not hesitate to call. Thank you. Sincerely, HEXAGON TRANSPORTATION CONSULTANTS, INC . Brian Jackson Senior Associate EXHIBIT D .Insurance Requirements Design Professionals & Consultants Contracts Consultant shall procure prior lo commencement of Services and mai ntain for the duration of the contract. at its own cost and expense, the follo'wing insurance policies and coverage with companies doing business in Ca liforni a and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED I. Commercial General LiabilitJ' ( CGL) fo r bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising inju1y \Vith limits no less than $2,000,000 per occurrence (ISO Form CG 00 0 I). 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," wi ll not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 01 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance , provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage sha ll also apply on a primary and non-contributory 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 Liahili~v: ISO CA 00 0 I covering any auto (including ovvned, 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 ofno less than $1,000,000 per occurrence for bodily injury or disease. 0 Not requ ired. Consultant has provided written verijication ofno employees. 4. Pn~fessional 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 Co ntract. b. In surance 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 Consu ltant must purchase "extended reporting" coverage for a minimum of five (5) years after comp letion of the Services. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: E,h. D-ln.rnranr.:e Requirements/or Design Pro/'es.~·iona/s & C'ons11 /tonts c·ontructs Form Upduted Feb . 20/8 -·------------·----······-··-·-·--------·--···--·-·---------'-------------..J 1 r-· I Additional Insured Status The City of Cupertino , its City Council, officers. officials , employees. agent s. servants and volunteers ("Additional Insureds") are to be covered as additional insureds 011 Consultant's CGL policy. General Liability coverage can be provided in the form of an endor?ernent to Consultant's insurance (at least as broad as ISO Form CG 20 IO (11/ 85) or both CG 20 IO and CG 20 37 forms , if later editions are used). Primm:v Covemge Coverage afforded to City/Additional Insureds sha ll be primary insurance. Any insurance or self-insu rance maintained by City, its officers. officia ls , 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 w ith written notice to City 30 days in advance or IO clays in advance if due to non-payment of premiums . Waiver <?/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 a ll work performed by Consultant, its employees. agents and subconsultants. This provision applies re gardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Se(f lnsured 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 e liminate 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 se lf-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do busine s s in California with an A.M. Best Rating of A-VII , or better. Verification of Coverage Consultant must furnish acceptable insurance ce1titicates 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 polic y endorsements prior to commencement of the Contract. City retains the right to demand verification of comp li ance at any time during the Contract term . Subconsultants Consultant shall require and verify that all subcons ult ants 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 l f Consultant main ta ins broader coverage and/or higher I im its than the 111 in im ums shown above , City sha II be entit led to coverage for the higher insurance limits maintained by Consultant . Adequac}' <~/Coverage City reserves the right to modify these insurance requirements/coverage based o n the nature of the risk , prior experience , insurer or other special circumstances , with not less than ninety (90) days prior written notice . L,h. D-lnsumnce l?eq11ir<!111 e ntsfor l>es ig n l 'n1(<!ssio11uls & C'o11s11!10nts C ontrac ts Form Updated Feb. 2 018 2 /~ ACORD® ~-CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYYI 4/10/20"18 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). PRODUCER ~2~~~cT Samantha Dutra i~~.J;;JI0 ~-~?~~1.J':§.1§7. ····-· ~t1o~~ss : sootra@!gi scher.com RC Fischer Co 1301 Ygnacio Valley Rd #100 Walnut Creek CA 94596 ..... l Jt,~, No); 925-932 -0962 ........................................................... 1NSU.RER(S)2\FFORDING COVERAGE ............................................ 1 ............. NAI.C # .. ... I NSURER A '· T ravelers.1 ndemnity of .CT 25682 INSURED HEXAG-1 Hex agon Transportation Consultants , Inc. ._I NSURER s ,Travelers Prop .cas .co .. of Amer __ .. -·---......... ,._ 25674 4 North Second St., #400 INSURER c : Te ch nology ln.suranceComp}lfly .. __ .. _ ... _________ • __ _ San Jose CA 95113 J!'l SURER_l:l_:.f.~rg ona ut lnsura._r:i_c_~_gg[l)P.?DY ... ···-----------·--------·- .1NSUREHE .. , .. Travelers .. lndem!J.!!Y~--___ ..................................................................................... .,.-.................... ___ ... _ .. .. INSURER F : COVERAGES CERTIFICATE NUMBER: 315118192 REVISION NUMBER: TH IS IS TO CERTIFY THA T THE POLI CIES OF INSURANCE LISTED BELOW HAVE BEEN ISS UED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDIC ATED . 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 DESC RIBED HEREIN IS SUBJECT TO ALL THE TERM S. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS . LIMITS A [ X i COMMERCIAL GENERAL LIABILITY Y Y 6807H532991 311/2016 311/2019 ,_5:~~g~~g~~~~i~--.i S 2.po_q,000 _ ...... ·-·----..... l..i_J CLAIMS-MADE 0 OCCUR ,1 i"B!C..MJSES (E a ggcu rr~ ~. S 1,000 ,000 i ' . MED EXP (Any one person) l S 5,000 ! [ ;ERSONA L & AD~ ~N;;;;--j S 2,000 ,000 ! GEN'L AGGREGATE LIMIT APPLIES PER: i GENERAL AGGREGATE ! S 4 000 000 .. ] POLICY f"'xl j'&fr [_-l LOC i 1;;~:~~~~gQ_MP/OPAG--;; i S4 :qoo ooo ___ _ f OTHER: r .. : ... :.: . .-::-.. :: .. ::.=...:....= i S E AUTOMOBILE LIABILI TY Y :, BA9H 798647 I 3/1/20 18 I '.311/2019 ' COMBI NED SINGLE LIMIT [ ... : .. ANY AUTO ~ ~=RY (P er person)-:~{:OOO~OOO _ ~~J~grNED ~8~6~U LED I BODILY INJUR Y (Per acc rdenl) i S x ~e~~~W-IED r r~?~;:d~~,~AMAGE _i $ ............ _ -···· ........ ___ r j s X HIRED AUTOS ---- 8 f...... . UMBREL LA LIAS ~~--l OCCUR , i X [ EXCESS LIAS f I CLA IMS-MADE j f .... _ .................. --,.·-' __ ..... ._.c._ ................ -...... _. __ l ' I OED i X ! RETENTIONS n CUP5819P929 31112018 3/112019 I EACH OCCURRENCE j S 5,00 0.000 r·--------- f.:':-9_C3 REG AT E ·-· ~.5.000,000 ....... .. 3/1/2018 3/112019 C j WORKERS COMPENSATION !. ! AND EMPLOYERS ' LIABILITY I ANY PROPRIETOR /PARTNER/EXECUTIVE I ~:~~::::~~~~~~ EXC LU DED? Y I TllvC3697463 ! 'E.L EACHAC CIDEi'JT . ____ .J.s .. rnoo ,OOO _ ··--·----.. -.. . I If yes . desc ribe under , DESCR IPTI ON OF OPERATION S below D ! Professronal Liabilily 1 Claims -Mad e Form ! IAE42074300 311/2018 3/1/2019 I EL . DISEASE .-.EA .. EMP LOYE~ ... s .. rnoo .ooo .. _ ........... -.. --.. ·--.. .. i EL DISEASE · POLIC Y LI MIT I S 1,00 0,00 0 I Each Claim Aggregate I Deduclib le S2.000 ,000 S2.000 ,000 SS .000 DESCRIPTION OF OPERA TIONS I LOCATIONS/ VEHICLES (ACORD 101, Add itio nal Rema rks Sche dule, ma y be att ached if more spac e Is re qui red ) RE: Traffic Impact Analysis for the De An za Hotel CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS . City of Cupertino 10300 Torre Avenue AUTHO RI ZED REPRESENTATIVE Cupertino CA 95014 ~ © 1988-2014 ACORD CORPORATION . All rights reserved. ACORD 25 (2014/01) Tile ACORD name a nd logo are registered marks of ACORD Named Insured : He xagon Transportation Consultants, Inc . Policy No . 680-7H32991 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) rhis endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART I. The following is added to SECTION II -WHO IS AN INSURED : Any person or organization that you agree in a "written contract requiring insurance" to include as an additional insured on this Coverage Part, but: a. Only with respect to liability for "bodily injury", "property damage" or "personal injury''; and b. If, and only to the extent that , the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of "your work" to which the "written contract requiring insurance" applies, or in connection with premises owned by or rented to you. The person or organization does not qualify as an additional insured : c. With respect to the independent acts or omissions of such person or organization ; or d. For "bod ily injury", "property damage" or "personal injury" for which such person or organization has assumed liability in a contract or agreement. The insurance provided to such additional insured is limited as follows : e. This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specifically is added by another endo rsement to this Coverage Part. f . This insurance does not apply to the rendering of or failure to render any "profess ional services". g. In the event that the Limits of Insurance of the Coverage Part shown in the Declarations exceed the limits of liability required by the "written contract requiring insurance", the insurance provided to the additional insured shall be limited to the limits of liability required by that "written contract requiring insurance". This endorsement does not increase the limits of insurance described in Section Ill - Limits Of Insurance . h. This insurance does not apply to "bodily injury" or "property damage " caused by "your work" and included in the "products- completed operations hazard" unless the "written contract requinng insurance" specifically requires you to provide such coverage for that additional insured , and then the insurance provided to the additional insured applies only to such "bodily injury" or "property damage" that occurs before the end of the period of time for which the "written contract requiring insurance" requires you to provide such coverage or the end of the policy period, wh ichever is earl ier. 2. The following is added to Paragraph 4.a. of SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS : The insurance provided to the additional insured is excess over any valid and collectible other insurance , wl1ether primary , excess , contingent or on any other basis, that is available to the additional insured for a loss we cover. However, if you specifically agree in the "written contract requiring insurance" that this insurance provided to the additional insured under this Coverage Part must apply on a primary basis or a primary and non-contributory bas is , this insurance is primary to other insurance available to the additional insured which covers that person or organizations as a named insured for such loss, and we will not share with the other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage is sought occurs ; and (2) The "personal injury" for which coverage is sought arises out of an offense committed ; after you have signed that "written contract requiring insurance". But this insurance provided to the additional insured still is excess over valid and collectible other insurance, whether primary , excess, contingent or on any other basis, that is available to the addit ional insured when that person or organization is an additional insured under any other insurance . CG 03 810915 © 201 5 The Travelers Indemnity Company . All rights reserved . Page 1 of 2 In cludes the copyrighted mate rial of Insurance S ervices Office , In c , with its perm issi on COMMERCIAL GENERAL LIABILITY 3. The following is added to Paragraph 8., Transfer Of Rights Of Recovery Against Others To Us , of SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS: We waive any right of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal injury'' arising out of "your work" performed by you, or on your behalf, done under a "written contract requiring insurance" with that person or· organization. We waive this right only where you have agreed to do so as part of the "written contract requiring insurance" with such person or organization signed by you before, and in effect when, the "bodily injury" or "property damage" occurs, or the" personal injury" offense is committed. Named Insured: Hexagon Transportation Consultants. Inc. Policy No. 680-7H32991 4. The following definition is added to the DEFINITIONS Section: "Written contract requiring insurance" means that part of any written contract under which you are required to include a person or organization as an additional insured on this Coverage Part , provided that the "bod ily injury" and "property damage" occurs and the "personal injury" is caused by an offense committed: a. After you have signed that written contract; b. While that part of the written contract is in effect; and c. Before the end of the policy period. Page 2 of 2 © 2015 The Travelers Indemnity Company . All rights reserved. CG D3 81 0915 Includes the copyrighted material of Insurance Services Office. Inc .. with its permission Po licy No. BA9H798647 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES 'THE P O LICY. PLEASE READ IT CAREFULLY. BLANKET WAIVER OF SUBROGATION This endorsement modifies Insurance provided under the following : AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM The following replaces Paragraph A.5., Transfer of Rights Of Recovery Against Others To Us, of the CONDITIONS Section: 5. Transfer Of Rights Of Recovery Against 0th• ers To Us We waive any right of recovery we may have against any person or organization to the extent required of you by a written contract executed prior to any "accident" or "loss", provided that the "accident" or "loss" arises out of the operations contemplated by such contract. The waiver ap - plies only to the person or organization desig- nated in such contract. CA T3 40 02 15 © 2015 The Travelers In demnity Company. All rights reserved. Page I of 1 Includes copyrighted mater ial of Insurance Servi ce s Office, Inc . wilh Its permission. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT WC 00 03 13 (Ed. 04-84) 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 writt en contract that requires you to obtain this agreement from us .) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Any person or organization as r equired by written contract 250.00 This endorsement changes the policy to wl1ich it is attact1ed 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 Insured Insurance Compa ny WC 00 03 13 (Ed 04-84) 3/1/2018 Poli cy No. TWC3697463 Hexagon Tran sportation Consultants. Inc . Technology In surance Company . Inc. Countersigned .by _____ _ Endors ement No. O Premium $ 9257 -------------····---····-----···-······- WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY PENDING RATE CHANGE ENDORSEMENT WC 00 04 04 (Ed. 04-84) A rate change filing is being considered by the proper regulatory authority . The filing may result in rates different from the rates shown on the policy . If it does , we will issue an endorsement to show the new rates and their effective date . If only one state is shown in Item 3.A . of the Information Page , this endorsement applies to that state . If more than one state is shown there, this endorsement applies only in the state shown in the Schedule. Schedule State AZ This endorsement changes the policy to which it is attached and is effe ctive 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 Insured Insurance Company WC 00 04 04 (Ed . 04 -84) 3/1/2018 Policy No . TWC3697463 Endorsement No . O Hexagon Transportation Consultants , In c. Premium $ 9257 Technology Insurance Company . Inc . Countersigned by