NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT.

Except as specified in this Agreement, CONSULTANT shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to satisfactorily complete the services required in this Agreement.

The Project Schedule is set forth in the attached Exhibit "A-1."

All invoices, including detailed backup, shall be sent to City of Sunnyvale, attention Accounts Payable, P.O. Box 3707, Sunnyvale, CA 94088-3707.

CONSULTANT bind themselves, their partners, successors, assigns, executors, and administrators to all covenants of this Agreement. Except as otherwise set forth in this Agreement, no interest in this Agreement or any of the work provided for under this Agreement shall be assigned or transferred, either voluntarily or by operation of law, without the prior written approval of CITY. However, claims for money due to or to become due to CONSULTANT from CITY under this Agreement may be assigned to a bank, trust company or other financial institutions, or to a trustee in bankruptcy, provided that written notice of any such assignment or transfer shall be first furnished to CITY. In case of the death of one or more members of CONSULTANT's firm, the surviving member or members shall complete the services covered by this Agreement. Any such assignment shall not relieve CONSULTANT from any liability under the terms of this Agreement. Consultant shall not sub-contract any portion of the work contemplated and provided for herein without prior written approval of CITY.

CONSULTANT is not an agent or employee of CITY but is an independent contractor with full rights to manage its employees subject to the requirements of the law. All persons employed by CONSULTANT in connection with this Agreement will be employees of CONSULTANT and not employees of CITY in any respect. CONSULTANT is responsible for obtaining statutory Workers' Compensation coverage for its employees.

All reports, costs estimates, plans and other documents which may be submitted or furnished by CONSULTANT shall be approved and signed by a qualified registered professional in the State of California. The title sheet for calculations, specifications and reports, and each sheet of plans, shall bear the professional seal, certificate number, registration classification, expiration date of certificate and signature of the professional responsible for their preparation.

The plans, designs, specifications, estimates, calculations reports and other documents furnished under the Scope of Work (Exhibit "A") shall be of a quality acceptable to CITY. The criteria for acceptance of the work provided under this Agreement shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar projects.

Any acceptance by CITY of plans, specifications, calculations, construction contract documents, reports, diagrams, maps and other material prepared by CONSULTANT shall not, in any respect, absolve CONSULTANT for the responsibility CONSULTANT has in accordance with customary standards of good engineering practice in compliance with applicable Federal, State, County and/or municipal laws, ordinances, regulations, rules and orders.

CITY, through its authorized employees, representatives, or agents, shall have the right, at any and all reasonable times, to audit the books and records including, but not limited to, invoices, vouchers, canceled checks, time cards of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years from the date of final payment to CONSULTANT or for any longer period required by law, sufficient books and records in accordance with generally accepted accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT. Any expenses not so recorded shall be disallowed by CITY.

All ideas, memoranda, specifications, plans, calculations, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for CONSULTANT and all other written information submitted to CONSULTANT in connection with the performance of this Agreement shall be held confidential by CONSULTANT and shall not, without the prior written consent of CITY be used for any purposes other than the performance of the Project services, nor be disclosed to an entity not connected with the performance of the Project services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry shall be deemed confidential. CONSULTANT shall not use CITY's name, insignia or distribute exploitative publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY.

Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY.

CITY shall not be limited, in any way, in its use of said material, at any time, for work associated with Project. However, CONSULTANT shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to the release of this material to third parties for work other than on Project.

To the extent permitted by law, CONSULTANT agrees to indemnify and hold harmless CITY, its officers and employees from any and all claims, demands, actions, causes of action, losses, damages, liabilities, known or unknown, and all costs and expenses, including reasonable attorneys’ fees in connection with any injury or damage to persons or property to the extent arising out of any negligent act, error, omission or negligence of CONSULTANT, its officers, employees, agents, contractor, subcontractors or any officer, agent or employee thereof in relation to CONSULTANT’s performance under this Agreement. Such defense and indemnification shall not apply in any instance of and to the extent caused by the sole negligence or willful misconduct of CITY, its officers, employees, agents or representatives.

CONSULTANT shall take out and maintain during the life of this Agreement policies of insurance as specified in Exhibit "C" attached and incorporated by reference, and shall provide all certificates and/or endorsements as specified in Exhibit "C."

This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever.

All notices required by this Agreement shall be in writing, and shall be personally delivered, sent by first class mail with postage prepaid, or by commercial courier, addressed as follows:

To CITY:

Chuck Neumayer
Department of Public Works
CITY OF SUNNYVALE
P. O. Box 3707
Sunnyvale, CA 94088-3707

To CONSULTANT:

Olivia Chen
OLIVIA CHEN CONSULTANTS, INC.
Fox Plaza
1390 Market Street Suite 1100
San Francisco, CA 94102

Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by telephone or facsimile transmission, to accomplish timely communication. However, to constitute effective notice, written confirmation of a telephone conversation or an original of a facsimile transmission must be sent by first class mail, by commercial carrier, or hand-delivered. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of three days after mailing, unless such date is a date on which there is no mail service. In that event communication is deemed to occur on the next mail service day.

CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement.

No alterations or changes to the terms of this Agreement shall be valid unless made in writing and signed by both parties.

This Agreement embodies the agreement between CITY and CONSULTANT and its terms and conditions. No verbal agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Any such verbal agreement shall be considered as unofficial information and in no way binding upon CITY.

CONSULTANT certifies that to the best of its knowledge, no CITY employee or officer of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would conflict in any manner or degree with the performance of this Agreement.

This Agreement has been entered into in the State of California and this Agreement shall be governed by California law.

CONSULTANT shall maintain complete and accurate records of its operation, including any and all additional records required by CITY in writing. CONSULTANT shall submit to CITY any and all reports concerning its performance under this Agreement that may be requested by CITY in writing. CONSULTANT agrees to assist CITY in meeting CITY's reporting requirements to the state and other agencies with respect to CONSULTANT's work hereunder.
All records, reports and documentation relating to the work performed under this Agreement shall be made available to City during the term of this Agreement.

If CONSULTANT defaults in the performance of this Agreement, or materially breaches any of its provisions, CITY at its option may terminate this Agreement by giving written notice to CONSULTANT. If CITY fails to pay CONSULTANT, CONSULTANT at its option may terminate this Agreement if the failure is not remedied by CITY within thirty (30) days from the date payment is due.

Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY also shall have the right to terminate this Agreement for any reason upon ten (10) days' written notice to CONSULTANT. In the event of such termination, CONSULTANT shall be compensated in proportion to the percentage of services performed or materials furnished (in relation to the total which would have been performed or furnished) through the date of receipt of notification from CITY to terminate. CONSULTANT shall present CITY with any work product completed at that point in time.

None of the services covered by this Agreement shall be subcontracted without the prior written consent of CITY. Such consent may be issued with notice to proceed if subcontract consultants are listed in the project work plan.

CONSULTANT shall not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, condition of physical handicap, religion, ethnic background or marital status, in violation of state or federal law.

CITY or CONSULTANT may, from time to time, request changes in the terms and conditions of this Agreement. Such changes, which are mutually agreed upon by CITY and CONSULTANT, shall be incorporated in amendments to this Agreement.

This Agreement shall not prevent either Party from entering into similar agreements with others.

In case any one or more of the provisions contained herein shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions which shall remain in full force and effect.

The captions of the various sections, paragraphs and subparagraphs, of the contract are for convenience only and shall not be considered nor referred to for resolving questions of interpretation.

This writing constitutes the entire agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing signed by all parties.

Time shall be of the essence in this Agreement. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision. This Agreement shall be governed and construed in accordance with the laws of the State of California.

IN WITNESS WHEREOF, the parties have executed this Agreement.

City Clerk

City Manager

APPROVED AS TO FORM:

OLIVIA CHEN CONSULTANTS INC
("CONSULTANT")

City Attorney

Name/Title

SCOPE OF WORK

6.0 DELIVERABLES

6.1

30% Submittal

a)

Narrative report on results of Preliminary Studies, including preliminary geotechnical/ soils report.

b)

Plans (5 sets of prints; 24" x 36", max. size or 11"x17" reduced size incorporated into narrative report) on completed base maps of levees in items 1.2 and 1.3 (north and east sides of Oxidation Pond No. 2).

c)

Outline of technical Specifications (1 electronic copy incorporated into narrative report).

d)

Preliminary construction costs estimate (1 electronic copy incorporated into narrative report).

e)

Preliminary construction schedule (1 electronic copy incorporated into narrative report).

f)

Cut sheets for equipment/appurtenances, if required (3 copies).

6.2

Base Topograph-ic Map

a)

For levees included in items 1.2 through 1.4 (north and east sides of Oxidation Pond No. 2; west and south levees of Oxidation Pond No. 2; and the north and west levees of the Industrial Waste Holding Pond).

6.3

90% Submittal

a)

Plans (5 sets of prints; 24" x 36", max. size; 1 electronic copy).

b)

Technical Specifications (1 electronic copy).

c)

Special Provisions (1 electronic copy).

d)

Geotechnical/Soils Report (2 hard copies).

e)

Updated construction costs estimate 1 electronic copy).

f)

Updated construction schedule (1 electronic copy).

g)

List of submittals required by Technical Specifications (1 electronic copy).

h)

Written response to all comments from previous submittal.

i)

Schedule of Equipment Replacement (1 electronic copy).

j)

Schedule of Required Tests (1 electronic copy).

k)

Permits received to date (2 copies). Consultant to retain the originals.

l)

Design presentation to City staff.

6.4

Building Permit Submittal

a)

Plans (4 sets of prints, including 3 sets wet-stamped and signed; 1 electronic copy).

(This submittal

b)

Technical Specifications (2 hard copies).

Consultant)

c)

Geotechnical/Soils Report, if required (2 hard copies).

6.5

Other Permitting Agency Submittal

b)

Biologist’s letter report from Task 2.6.5.

6.6

(Incorporating all

a)

Plans (5 sets of prints; 24" x 36", max. size; 1 electronic copy).

previous correc-

b)

Technical Specifications (1 electronic copy).

by previous

c)

Special Provisions including attachments (1 electronic copy).

other agencies

d)

Updated construction costs estimate (1 electronic copy).

responsibility).

e)

Updated construction schedule (1 electronic copy).

f)

Updated list of submittals required by Technical Specifications (1 electronic copy).

g)

Written responses to all City comments, including those from the Building Department and/or other permitting agencies (1 copy).

h)

Updated Schedule of Equipment Replacement (1 electronic copy).

i)

Updated Schedule of Required Tests (1 electronic copy).

j)

Remaining permits from other depts./ agencies (2 copies). City to retain originals.

6.7

Construction Submittal

a)

AutoCAD construction plans (1 electronic copy on disk).

b)

Plans (1 stamped and signed reproducible copy and 4 sets of prints; 24" x 36", max.).

c)

Technical Specifications (1 unbound hard copy and 1 electronic copy). Electronic copy shall be one document (file) only, in MS Word; it must include all sections and everything else that appears in the technical specifications (e.g. diagrams, attachments, etc.). Numbering system should be consistent all through the specifications. Special Provisions (1 unbound hard copy and 1 electronic copy). Font utilized for Technical Specifications and for Special Provisions should be Arial, size 10. Spelling should have been checked before final document is sent to City.

d)

Written responses to any comments generated from Submittals 6.5 and 6.6 above (1 copy).

e)

Original (final) permit(s) obtained from any permitting agency involved in the project.

f)

Provide QA/QC certification by Final Reviewer.

g)

Updated Schedule of Equipment Replacement (1 electronic copy).

h)

Updated Schedule of Required Tests (1 electronic copy).

6.8

Record Drawings

a)

Revised originals based upon the Contractor’s representation of actual construction (1 set; 24" x 36", max.), including mark-up of construction drawings, addenda, and change orders.

b)

AutoCAD plans based upon the Contractor’s representation of actual construction (1 electronic copy).