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23-030 SWIMS for Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devicesPublic Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 1 of 12 PUBLIC WORKS CONTRACT $200,000 OR LESS 1. PARTIES This public works contract (“Contract”) is made by and between the City of Cupertino (“City”), and Storm Water Inspection & Maintenance Services, Inc, a Corporation (“Contractor”) for design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices, and is effective on the last date signed below (“Effective Date”). 2. SCOPE OF WORK Contractor will perform and provide all labor, materials, equipment, supplies, transportation and any other items or work necessary to perform and complete the work required for the Project (“Work”), as required in the Scope of Work, attached here and incorporated as Exhibit A, and in accordance with the terms and conditions of this Contract. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 3. TIME FOR COMPLETION 3.1 Term. This Contract begins on the Effective Date and ends on June 30, 2023 (“Contract Time”) unless terminated earlier as provided herein. Contractor’s Work shall begin on the date shown on a written Notice to Proceed (“NTP”) and must be fully completed within the Contract Time or on the date specifically provided in the Notice to Proceed. The City Engineer will not issue a NTP until the Contract is fully executed by both parties and City has received satisfactory proof of insurance and any performance and payment bonds that may be required. The Director of Public Works may authorize the extension of the Contract Time by up to sixty (60) calendar days through a written amendment to this Agreement, provided such extension does not include additional contract funds. 3.2 Time is of the essence for Contractor’s performance and completion of the Work. Contractor must have sufficient time, resources, and qualified staff to deliver the work on time. 3.3 Liquidated damages of $1,500.00 will be charged for each day of unexcused delay, or City may deduct the amount from Contractor’s payments. Liquidated damages are based on reasonably foreseeable consequences of delay and may include intangible losses which the Parties agree may be difficult to ascertain, such as loss of public confidence in City and its contractors, interference or loss of use of public facilities, and extended disruption to the public. Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 2 of 12 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Work an amount that will based on actual costs but that will be capped so as not to exceed $25,555.00 (“Contract Price”), for all of Contractor’s direct and indirect costs, including all labor, materials, supplies, equipment, taxes, insurance, bonds, and all overhead costs. 4.2 Invoices and Payments. Contractor must submit an invoice on the first day of each month, describing the Work performed during the preceding month, itemizing labor, materials, equipment and any incidental costs incurred. Contractor will be paid ninety-five percent (95%) of the undisputed amounts billed within thirty (30) days after City receives a properly submitted invoice. Any retained amounts will be included with Contractor’s final payment within sixty (60) days of City’s acceptance of the Work as complete. 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee of City. Contractor is solely responsible for the means and methods of performing the Work and for the persons under this employment. Contractor is not entitled to worker’s compensation or any other City benefits. 5.2 Contractor’s Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Work in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Work as required by law, and have procured a City Business License, if required by the Cupertino Municipal Code. Contractor shall possess a California Contractor’s License in good standing for the following classification(s): C- 61/D64, which must remain valid for the entire Contract Time. 5.4 Subcontractors. Only Contractor’s employees are authorized to work under this Contract. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Contract will apply to any approved subcontractor. 5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and equipment required to perform the Work under this Contract. 5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 3 of 12 Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Agreement, or to promptly remit to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Agreement are not greater than they would have been had the determination not been made. 6. CHANGE ORDERS Amendments and change orders must be in writing and signed by City and Contractor. Contractor’s request for a change order must specify the proposed changes in the Work, Contract Price, and Contract Time. Each request must include all the supporting documentation, including but not limited to plans/drawings, detailed cost estimates, and impacts on schedule and completion date. 7. ASSIGNMENTS; SUCCESSORS Contractor shall not assign, hypothecate, or transfer this Contract or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Contract and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. This Contract is binding on Contractor, its heirs, successors, and permitted assigns. 8. PUBLICITY / SIGNS Any publicity generated by Contractor for the Project during the Contract Time, and for one (1) year thereafter must credit City contributions to the Project. The words “City of Cupertino” must be displayed in all pieces of publicity, flyers, press releases, posters, brochures, interviews, public service announcements, and newspaper articles. No signs may be posted or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. 9. SUBCONTRACTORS 9.1 Contractor must perform all the Work with its own forces, except that Contractor may hire qualified subcontractors to perform up to 25% of the Work, provided that each subcontractor is required by contract to be bound by the provisions of this Contract. Contractor must provide City with written proof of compliance with this provision upon request. 9.2 City may reject any subcontractor of any tier and bar a subcontractor from performing Work on the Project, if City in its sole discretion determines that subcontractor’s Work falls short of the requirements of this Contract or constitutes grounds for rejection under the Public Contract Code. If City rejects a subcontractor, Contractor at its own expense must perform the subcontractor’s Work or hire a new subcontractor that is acceptable to City. A Notice of Completion must be recorded within fifteen (15) days after City accepts the Work if the Contract involves work by subcontractors. Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 4 of 12 10. RECORDS AND DAILY REPORTS 10.1 Contractor must maintain daily reports of the Work and submit them to City upon request and at completion of Project. The reports must describe the Work and specific tasks performed, the number of workers, the hours, the equipment, the weather conditions, and any circumstances affecting performance. City will have ownership of the reports, but Contractor will be permitted to retain copies. 10.2 If applicable, Contractor must keep a separate set of as-built drawings showing changes and updates to the Scope of Work or the original drawings as changes occur. Actual locations to scale must be identified for all major components of the Work, including mechanical, electrical and plumbing work; HVAC systems; utilities and utility connections; and any other components City determines should be included in the final drawings of the Project. Deviations from the original drawings must be shown in detail, and the location of all main runs, piping, conduit, ductwork, and drain lines must be shown by dimension and elevation. 10.3 Contractor must maintain complete and accurate accounting records of its Work, in accordance with generally accepted accounting principles, which must be available for City review and audit, kept separate from other records, and maintained for four (4) years from the date of City’s final payment. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers and consultants (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, stop notices, actions, causes of action, demands, charges, losses and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings), of every nature arising directly or indirectly from this Contract or in any manner relating to any of the following: (a) Breach of contract, obligations, representations or warranties; (b) Performance or nonperformance of the Work or of any obligations under the Contract by Contractor, its employees, agents, servants, subcontractors or subcontractors; (c) Payment or nonpayment by Contractor or its subcontractors or sub-subcontractors for Work performed on or off the Project Site; and (d) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim, in accordance with California Public Contract Code Section 9201. At City’s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Contract. 11.3 Contractor’s duties under this entire Section 11 are not limited to Contract Price, Workers’ Compensation, or other employee benefits, or the insurance and bond coverage required in this Contract. Nothing in the Contract shall be construed to give rise to any implied right of indemnity in favor of Contractor against City or any other Indemnitee. Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 5 of 12 11.4 Contractor’s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Contract, a purchase order or other transaction. 11.5 Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.6 This Section 11 shall survive termination of the Contract. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit B. Contractor must provide satisfactory proof of insurance and maintain it for the Contract Time or longer as required by City. City will not execute the Contract until City has 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. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance at Contractor’s expense, deducting the costs from Contractor’s compensation, or terminating the Contract. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all laws and regulations applicable to this Contract. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor’s ability to perform. Contractor is responsible for verifying the employment status of employees performing the Work, as required by the Immigration Reform and Control Act 13.2 Labor Laws. (a) The following provisions apply to contracts of $1,000 or more: (i) In General. For purposes of California labor law, this is a public works contract subject to the provisions of Part 7 of Division 2 of the California Labor Code (Sections 1720 et seq.). In accordance with Labor Code Section 1771, Contractor and all subcontractors shall pay not less than current prevailing wage rates as determined by the California Department of Industrial Relations (“DIR”) to all workers employed on this project. In accordance with Labor Code Section 1815, Contractor and all subcontractors shall pay all workers employed on this project 1 ½ the basic rate of pay for work performed in excess specified hour limitations. The work performed pursuant to this Contract is subject to compliance monitoring and enforcement by the Department of Industrial Relations. (ii) Registration. Contractor and all subcontractors shall not engage in the performance of any work under this Contract unless currently registered and Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 6 of 12 qualified to perform public work pursuant to section 1725.5 of the California Labor Code. Contractor represents and warrants that it is registered and qualified to perform public work pursuant to section 1725.5 of the Labor Code and will provide its DIR registration number, along with the registration numbers of any subcontractors as required, to the City. (iii) Posting. Contractor shall post at the job site the determination of the DIR director of the prevailing rate of per diem wages together with all job notices that are required by regulations of the DIR. (iv) Reporting. Contractor and any subcontractors shall keep accurate payroll records in accordance with Section 1776 of the Labor Code and shall furnish the payroll records directly to the Labor Commissioner in accordance with the law. (v) Report on Prevailing Rate of Wages. The City has obtained the general prevailing rate of per diem wages in the vicinity of the project for each type of worker needed, a copy of which is on file at the City of Cupertino City Hall, and shall be made available to any interested party upon request. (vi) Employment of Apprentices. Contractor’s attention is directed to the provisions in Sections 1777.5 and 1777.6 of the Labor Code concerning the employment of apprentices by the Contractor or any subcontractor. It shall be the responsibility of the Contractor to effectuate compliance on the part of itself and any subcontractors with the requirements of said sections in the employment of apprentices. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex-officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. (vii) Penalties. Contractor’s attention is directed to provisions in Labor Code Sections 1775 and 1813. In accordance with Labor Code Section 1775, Contractor and subcontractors may be subject to penalties for Contractor’s and subcontractors’ failure to pay prevailing wage rates. In accordance with Labor Code Section 1813, Contractor or subcontractors may be subject to penalties for Contractor’s or subcontractors’ failure to pay overtime pay rates for hours worked by workers employed on this project in excess specified hour limitations. (b) Contractor must compensate workers who are paid less than prevailing wages or required to work more than a legal day’s work. Contractor will also be required to pay City a penalty of $200.00 per worker for each day of violation. (c) As required by Labor Code Section 1861, by signing this Contract Contractor certifies as follows: “I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self- insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the work of this contract.” 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 7 of 12 gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or Contractor's employees or sub-contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 13.4 Conflicts of Interest. Contractor, its employees, subcontractors, servants and agents, may not have, maintain or acquire a conflict of interest in relation to this Contract in violation of law, including Government Code section 1090 and Government Code section 81000 and their accompanying regulations. No officer, official, employee, consultant, or other agent of the City (“City Representative”) may have, maintain, or acquire a “financial interest” in the Contract, as that term is defined by state law, or in violation of a City ordinance or policy while serving as a City Representative or for one year thereafter. Contractor, its employees, subcontractors, servants, and agents warrant they are not employees of City nor do they have any relationship with City officials, officers, or employees that creates a conflict of interest. Contractor may be required to file a conflict of interest form if it makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of Regulations. Contractor agrees to abide by City rules governing gifts to public officials and employees. 13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating the Contract. City reserves all rights and remedies under the law and this Contract, including seeking indemnification. 14. BONDS For contracts of $25,000 or more, Contractor must obtain a payment bond and a performance bond, each in the penal sum of 100% of the Contract Price, using the Bond Forms attached and incorporated here as Exhibit C. Each bond must be issued by a surety admitted in California, with a financial rating from A.M. Best Company of Class A- or higher, or as otherwise acceptable to City. If an issuing surety cancels a bond or becomes insolvent, Contractor must provide a substitute bond from a surety acceptable to City within seven (7) calendar days after written notice from City. If Contractor fails to do so, City may in its sole discretion and without prior notice, purchase bonds at Contractor’s expense, deduct the cost from payments due Contractor, or terminate the Contract. City will not execute the Contract nor issue the NTP until the required bonds are submitted. 15. UTILITIES, TRENCHING, AND EXCAVATION 15.1 Contractor must call the Underground Service Alert (“USA”) 811 hotline and request marking of utility locations before digging or commencing Work. For underground service alerts for street lighting and traffic signal conduits, City’s Service Center must be called at (408) 777-3269. Government Code Section 4215 requires Contractor to notify City and Utility in writing if it discovers utilities or utility facilities not identified in the Contract. Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 8 of 12 15.2 Pursuant to Government Code Section 7104, Contractor must stop work, notify City in writing, and wait for instructions if one of the conditions below is found at the worksite. City will work with Contractor to amend the Contract or issue a change order if the discovered conditions materially change the Work/Performance, Contract Time or Contract Price. (a) Material believed to be hazardous waste under Health and Safety Code Section 25117, and which requires removal to a Class I, Class II, or Class III disposal site pursuant to law; (b) Subsurface or latent physical conditions at the Project worksite differing from those indicated by information about the worksite made available to Contractor; and (c) Unknown physical conditions at the Project worksite of any unusual nature, materially different from those ordinarily encountered and from those generally recognized as inherent in the character of the Work. 15.3 For contracts $25,000 or higher that require excavation or involve trenches five feet or more in depth, Contractor must submit a detailed plan for City approval, per Labor Code Section 6705, prior to commencing work. The plan must show the design of shoring, bracing, sloping, and other provisions for worker protection from caving ground and other hazards. The protective system must comply with all Construction Safety Orders. If the plan varies from shoring system standards, it must be prepared by a registered civil or structural engineer. 16. URBAN RUNOFF MANAGEMENT 16.1 All Work must fully comply with federal, state, and local laws and regulations concerning storm water management. Contractor must avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, Contractor will use only the amount of water necessary to dampen the dust. Contractor will take all steps necessary to keep wash water out of the streets, gutters, and storm drains. Prior to the start of the Work, Contractor will implement erosion and sediment controls to prevent pollution of storm drains, and must upgrade and maintain these controls based on weather conditions or as otherwise required by City. These controls must be in place during the entire Contract Time and must be removed at the end of construction and completion of the Work. Such controls must include, but will not be limited to, the following requirements: (a) Install storm drain inlet protection devices such as sand bag barriers, filter fabric fences, and block and gravel filters at all drain inlets impacted by construction. During the annual rainy season, October 15 through June 15, storm drain inlets impacted by construction work must be filter-protected from onsite de-watering activities and saw-cutting activities. Shovel or vacuum saw-cut slurry and remove from the Work site; (b) Cover exposed piles of soil or construction material with plastic sheeting. Store all construction materials in containers; (c) Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain and at the end of each work day. When the Work is completed, wash the streets, collect and dispose of the wash water offsite in lawful manner; (d) After breaking old pavement, remove debris to avoid contact with rainfall/runoff; (e) Maintain a clean work area by removing trash, litter, and debris at the end of each work day and when Work is completed. Clean up any leaks, drips, and other spills as they occur. Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 9 of 12 16.2 These requirements must be used in conjunction with the California Stormwater Quality Association and California Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, and any other applicable documents on stormwater quality controls for construction. Contractor’s failure to comply with this Section will result in the issuance of noncompliance notices, citations, Work stop orders and regulatory fines. 17. PROJECT COORDINATION City Project Manager. City assigns Alex Wykoff as the City representative for all purposes under this Contract, with authority to require compliance with the Scope of Work. City may substitute Project Managers at any time and without prior notice to Contractor. Contractor Project Manager. Subject to City approval, Contractor assigns Gavin Edgell as its single representative for all purposes under this Contract, with the responsibility to ensure progress with the Work. Contractor’s Project Manager is responsible for coordinating and scheduling the Work and must regularly update the City Project Manager about the status and any delays with the Work, consistent with the Scope of Work. Any substitutions must be approved in writing by City. 18. ABANDONMENT AND TERMINATION 18.1 City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Work performed through the date of abandonment and will be given reasonable time to close out the Work. With City’s pre-approval in writing, the time spent in closing out the Work will be compensated up to ten percent (10%) of the total time expended in performing the Work. 18.2 City may terminate the Contract for cause or without cause at any time. Contractor will be paid for satisfactory Work rendered through the termination date and will be given reasonable time to close out the Work. 18.3 Final payment will not be made until Contractor delivers the Work and provides records documenting the Work, products and deliverables completed. Nothing in the Section below is intended to delay, abridge or bar City’s right under this Section. 19. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION This Contract is governed by the laws of State of California. Venue for any legal action shall be the Superior Court of the County of Santa Clara, California. The dispute resolution procedures of Public Contract Code Section 20104, et seq., incorporated here by reference, apply to this Contract and Contractor is required to continue the Work pending resolution of any dispute. Prior to filing a lawsuit, Contractor must comply with the claim filing requirements of the California Government Code. If the Parties elect arbitration, the arbitrator’s award must be supported by law and substantial evidence and include detailed written findings of law and fact. 20. ATTORNEY FEES If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 10 of 12 other proceedings to enforce its rights or a judgment in connection with this Contract, the prevailing party will be entitled to reasonable attorney fees and costs. 21. SIGNS/ADVERTISEMENT No signs may be displayed on or about City’s property, except signage which is required by law or by the Contract, without City’s prior written approval as to size, design and location. 22. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Contract. 23. WAIVER Neither acceptance of the Work nor payment thereof shall constitute a waiver of any contract provision. City waiver of any breach shall not constitute waiver of another provision or breach. 24. WARRANTY Contractor warrants that materials and equipment used will be new, of good quality, and free from defective workmanship and materials, and that the Work will be free from material defects not intrinsic in the design or materials. All Work, materials and equipment should pass to City free of claims, liens or encumbrances. Contractor warrants the Work and materials for one year from the date of City’s acceptance of the Work as complete (“Warranty Period”), except when a longer guarantee is provided by a supplier, manufacturer or is required by this Contract. During the Warranty Period, Contractor will repair or replace any Work defects or materials, including damage that arises from Contractor’s Warranty Work, except any wear and tear or damage resulting from improper use or maintenance. 25. ENTIRE CONTRACT This Contract and the attachments, documents, and statutes attached, referenced, or expressly incorporated herein, including authorized amendments or change orders constitute the final and complete contract between City and Contractor with respect to the Work and the Project. No oral contract or implied covenant will be enforceable against City. If there is any inconsistency between any term, clause, or provision of the main Contract and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Contract shall prevail and be controlling. 26. SEVERABILITY/PARTIAL INVALIDITY If a court finds any term or provision of this Contract to be illegal, invalid, or unenforceable, the legal portion of said provision and all other contract provisions will remain in full force and effect. 27. SURVIVAL The contract provisions which by their nature should survive the Contract or Completion of Project, including without limitation all provisions regarding warranties, indemnities, payment obligations, Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 11 of 12 insurance, and bonds, shall remain in full force and effect after the Work is completed or Contract ends. 28. INSERTED PROVISIONS Each provision and clause required by law to be inserted in this Contract will be deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. 29. CAPTIONS The captions, titles, and headings in this Contract are for convenience only and may not be used in the construction or interpretation of the Contract or for any other purpose. 30. COUNTERPARTS This Contract may be executed in counterparts, each of which is an original and all of which taken together shall form one single document. 31. NOTICES All notices, requests, and approvals must be sent in writing to the persons below and will be considered effective on the date of personal delivery, the date confirmed by a reputable overnight delivery service, on the fifth (5th) calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino: Office of the City Manager 10300 Torre Ave. Cupertino, CA 95014 cc: Representative/Coordinator: Alex Wykoff Email: alexw@cupertino.org To Contractor: Storm Water Inspection & Maintenance Services, Inc. PO Box 1627 Discovery Bay, CA 94505 cc: Representative/Coordinator: Gavin Edgell Email: gavine@swimsclean.com 32. EXECUTION The persons signing below warrant they have the authority to enter into this Contract and to legally bind their respective Parties. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code Section 313. SIGNATURES CONTINUE ON THE FOLLOWING PAGE Public Works Project: Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Public Works Contract / October 2021 Page 12 of 12 IN WITNESS WHEREOF, the parties have caused this Contract to be executed as of the Execution Date first above written. CITY OF CUPERTINO, a Municipal Corporation By: __________________________________ Title: ________________________________ Signature Date: _________________________ STORM WATER INSPECTION & MAINTENANCE SERVICES, INC. By: __________________________________ Title: ________________________________ Signature Date: _________________________ APPROVED AS TO FORM: By: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: By: KIRSTEN SQUARCIA City Clerk Date: V.P. Apr 14, 2023 Christopher D. Jensen Environmental Programs Manager Apr 14, 2023 Apr 14, 2023 EXHIBIT A- Scope of Work SWIMS Full Trash Capture Device Project February 2023 Project Summary: Fabrication and installation of (10) ten new Stormtek ST3G© inlet based full trash capture devices within the public right-of-way. The project will require repair of (4) four existing, installed full trash capture devices that the Contractor has previously inspected. The project includes pre-installation power vacuum sump cleaning of all catch basins within the project scope. The project requires the Contractor to provide temporary traffic control in all designated work areas as identified on the City approved Traffic Control Plan and encroachment permit. The term “Contractor” used herein means SWIMS Storm Water Inspection & Maintenance Services (SWIMS) and the term “City” means the City of Cupertino. Project Scope of Work: TASK 1: Contractor to design, fabricate, manufacture (10) ten Stormtek ST3G© devices to specification. TASK 2: Contractor to power vacuum sump each catch basin within the project area and remove all sediment and debris prior to device installation. Contractor to dispose of all sediment and debris removed per EPA standards. Contractor to provide detailed digital report and before/after photographs of the catch basin cleaning. TASK 3: Contractor to install (10) ten Stormtek ST3G© devices, repair (4) four existing ST3G© devices, and provide a detailed digital report with before/after photographs of all (15) fourteen devices. TASK 4: Contractor will coordinate and provide temporary traffic control at all work areas as identified in the City Engineering Division approved Traffic Control Plan and Encroachment Permit. TASK 5: City will post the work areas located in diagonal parking stalls (Vallco Parkway) with “No Parking” signs upon Contractor’s notification of the scheduled installation date(s) and times. Insurance Requirements for Construction Contracts Version: Oct. 2021 1 Contractor shall procure and maintain for the duration of the contract, and for five years following the completion of the Project, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (“CGL”): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor’s or Subcontractor’s acts or omissions, including Contractor’s protected coverage, blanket contractual, products and completed operations, vehicle coverage and employer’s non-ownership liability coverage, with limits of at least $2,000,000 per occurrence. The CGL policy must protect against any and all liability for personal injury, death, property damage or destruction, and personal and advertising injury. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. a. It shall be a requirement under this agreement 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 (1) the minimum coverage/limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Contractor's policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO CG 20 10 04 13 c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO Form CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, then hired autos (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance of no less than $1,000,000 per accident for bodily injury or disease, or as otherwise required by statute. If Contractor is self-insured, Contractor must provide a Certificate of Permission to Self-Insure, duly authorized by the DIR. ☐   N/A if box checked (Contractor provides written verification it has no employees).   4. Professional Liability with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate.   ☒   N/A if box checked (Contract is not design/build)..  5. Builder’s Risk. Course of Construction insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. PUBLIC WORKS CONSTRUCTION CONTRACTS Small Projects – $200,000 or less Insurance Requirements: Exhibit B Insurance Requirements for Construction Contracts Version: Oct. 2021 2   ☒    N/A if box checked (Project does not involve construction or improvements/installations to property).  6. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.   ☒   N/A if box checked (Project does not involve environmental hazards)  If Contractor maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At City’s option, either: (1) Contractor shall cause the insurer to reduce or eliminate self-insured retentions as respects City, its officers, officials, employees, and volunteers; or (2) Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or the City. OTHER INSURANCE PROVISIONS The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are to be covered as additional insureds on the CGL and automobile liability policies with respect to liability arising out of the Services performed by or on behalf of Contractor including materials, parts, or equipment furnished. Endorsement of CGL coverage shall be at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used. Primary Coverage For any claims related to this Project, Contractor’s insurance coverage shall be “primary and non-contributory” and at least as broad as ISO CG 20 01 04 13 with respect to City, its officers, officials, employees and volunteers, and shall not seek contribution from City’s insurance. If the limits of insurance are satisfied in part by Umbrella/Excess Insurance, the Umbrella/Excess Insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a “primary and non-contributory” basis for the benefit of City. Notice of Cancellation Each insurance policy required shall provide that coverage shall not be canceled, except with notice to the City. Each certificate of insurance must state that the coverage afforded by the policy is in force and will not be reduced, cancelled or allowed to expire without at least 30 days advance written notice to City, unless due to non-payment of premiums, in which case ten days advance written notice must be provided to City. Such notice must be sent to City via certified mail and addressed to the attention of the City Manager. Builder’s Risk Contractor may submit Builder’s Risk insurance in the form of Course of Construction coverage, which shall name the City as a loss payee, as its interest may appear. The Builder’s Risk policy must be issued on an occurrence basis, for all-risk coverage on a 100% completed value basis on the insurable portion of the Project, with no coinsurance penalties, and for the benefit of City. If the Project does not involve new or major reconstruction, City may elect, acting in its sole discretion, to accept an Installation Floater policy instead of Builder’s Risk. For such projects, the Property Installation Floater shall include improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment, and shall provide property damage coverage for any Insurance Requirements for Construction Contracts Version: Oct. 2021 3 building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site. Waiver of Subrogation Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City. Contractor agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors. Acceptability of Insurers Insurance must be issued by insurers acceptable to City and licensed to do business in the State of California, and each insurer must have an A.M. Best’s financial strength rating of “A” or better and a financial size rating of “VII” or better. Verification of Coverage Contractor shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time. Subcontractors Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13. Surety Bonds As required by Contract and described in the Contract Documents. The Payment and Performance Bonds shall be in a sum equal to the Contract Price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the Contract is for longer than one year a Maintenance Bond equal to 10% of the Contract Price is required. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California. Special Risks or Circumstances City reserves the right to modify these requirements, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 3/31/2023 (PT)Heffernan Insurance Brokers 101 Second Street,Suite 120 Petaluma CA 94952 Tami Etcheverry 707-781-3400 707-781-0800 tamie@heffins.com License#:0564249 Starr Surplus Lines Insurance Company 13604 STORWAT-02 Cypress Insurance Company 10855StormWaterInspection&Maintenance Services,Inc. 3291 Walnut Blvd,Ste.180 Brentwood CA 94513 Hartford Fire Insurance Company 19682 2078668433 A X 1,000,000 X 50,000 5,000 1,000,000 2,000,000 X Y Y 1000067623231 4/1/2023 4/1/2024 2,000,000 A 1,000,000 X X X Y Y 1000638110231 4/1/2023 4/1/2024 A X 9,000,000 X 1000337802231 4/1/2023 4/1/2024 9,000,000 B X Y Y STWC456754 4/1/2023 4/1/2024 1,000,000 1,000,000 1,000,000 A A C Pollution Liability Professional Liability Crime 1000067623231 1000067623231 57BDDHK6120 4/1/2023 4/1/2023 4/1/2023 4/1/2024 4/1/2024 4/1/2024 Each Occur/Aggregate Each Claim /Aggregate Limit 1000000 /2000000 1000000 /2000000 50,000 General Liability policy contains the attached Wrap Up exclusion endorsement.Excess Liability follows form of General Liability,Auto Liability,Employers Liability,Contractors Pollution,and Professional Liability per the policy terms.GL,Auto and WC policy limits are achieved with the use of an Excess/Umbrella policy,each underlying policy is specifically scheduled on the Excess/Umbrella policy.See attached policy underlying schedule.General Liability deductible / SIR amount is $5,000 per occurrence.Professional Liability deductible /SIR amount is $10,000 per claim.General Liability policy does not have a Residential Exclusion.There is no Multi-Family/Condo Exclusion on the General Liability policy.Mold coverage is included under the Pollution Liability.Ricci J Campos (President)is excluded from Workers Compensation. Re:As Per Contract or Agreement on File with Insured.The City of Cupertino,its City Council,officers,officials,employees,agents,servants and volunteers are included as an additional insured (primary and non-contributory)includes completed operations on General Liability policy and additional insured (primary See Attached... City of Cupertino -Public Works 10300 Torre Ave. Cupertino,CA 95014 ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: STORWAT-02 1 1 (PT)Heffernan Insurance Brokers Storm Water Inspection &Maintenance Services,Inc. 3291 Walnut Blvd,Ste.180 Brentwood CA 94513 25 CERTIFICATE OF LIABILITY INSURANCE and non-contributory)on Automobile Liability policy per the attached endorsements,if required.Waivers of Subrogation are included on General Liability, Automobile Liability and Workers Compensation policies per the attached endorsements,if required.Cancellation wording for General Liability is per policy form attached,if required. 1000067623231 April 1, 2023 1000067623231 April 1, 2023 1000337802231 4/01/2023 1000067623231 4/01/2023 - 4/01/2024 1000067623231 4/01/2023 - 4/01/2024 1000067623231 4/01/2023 - 4/01/2024 1000637110231 4/01/2023 - 4/01/2024 STWC351650 4/01/2023 - 4/01/2024 1000638110231 1000638110231 1000067623231 1000067623231 1000067623231 1000067623231 April 1, 2023 4/01/2023 STWC456754 2. Payment Bond > ("City") and storm water tnEearon e rtintonance serurces ("Contractor") have entered into a contract for work on the < Siormtek 2023 > Project ("Project"). The Contract is incorporated by reference into this Payment Bond ("Bond"). 1.General. Under this Bond, Contractor as principal ancl Arch rnsl*n@ companv its surety ("Surety"), are bound to City as obligee in an amount not less than q 25 5s5 oO under California Civil Code S 9550 et seq., to ensure payment to authorized claimants. This Bond is binding on the respeclive successors, assigns, owners, heirs, or executors of Surety and Contractor. Surety's Obligation. lf Contractor or any of its Subcontractors fails to pay a person authorized in California Civil Code S 9100 to assert a claim against a payment bond, any amounts due under the Unemployment lnsurance Code with respect to work or labor performed under the Contract, orany amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Contractor and its Subcontractors under California Unemployment lnsurance Code S 13020 with respect to the work and labor, then Surety will pay the obligation. Beneficiaries. This Bond inures to the benefit of any of the persons named in California Civil Code S 9100, so as to give a right of action to those persons or their assigns in any suit brought upon this Bond. Contractor must promptly provide a copy of this Bond upon request by any person with legal rights under this Bond. Duration. lf Contractor promptly makes payment of all sums for all labor, materials, and equipment furnished for use in the performance of the Work required by the Contract, in conformance with the time requirements set forth in the Contract and as required by California law, Surety's obligations under thls Bond will be null and void. Otherwise, Surety's obligations will remain in full force and effect. Waivers. Surety waives any requirement to be notified of alterations to the Contract or extensions of time for performance of the Work under the Contract. Surety waives the provisions of Civil Code $$ 2819 and 2845. City waives the requirement of a new bond for any supplemental contract under Civil Code S 9550. Any notice to Surety may be given in the manner specified in the Contract and delivered or transmitted to Surety as follows: Attn, Arch lnsurance Company AddfeSS 3 Harborside, 210 Hldson St, Sulle 3Oo City/State/Zip: JeBev ciry. NJ 07311 PhOne. 877-688-2724 Email .ra ms@archnsu rance com Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the < sa a crara > County Superior Court, and no other place. Surety will be responsible for City's attorneys'fees and costs in any action to enforce the provisions of this Bond. [Signatures are on the fo owing page.] 2021 Fotm PAYMENT BOND 3. 5. 7- Effective oate; Execution. This Bond is entered into and is effectiv" on MafCh 7, 2023. SURETY: Arch lnsurance Company March 7 , 2023 Name. Title (Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR: Storm Water lnspection & Maintenance Services END OF PAYMENT BOND Business Name Aaron Steffey, Attorney-in-Fact 2021 Form PAYMENT BOND s/ ,l >l K/zs uate State of lndiana County of Hamilton , on this 7lh (Acknowledgement of Surety) Marchday of before me personally appeared Aaron Steffey , to me personally known, who, being by me duly sworn, did depose and say that s/he resides in _tlil3!glp[E_i that s/he is the Attornev in Fact of the-_ Arch lnsurance Companv the corporation described in and which executed the within instrument; that by order of the board of directors of said corporation s/he signed hls/her name thereto and said further says that s/he is acquainted with aaron steff+ s6! ln6ws him/her to be the Attornev in Fact of the said corporation; that the signature ofthe said Aaron stefiev 43l9:_I9&y__subscribed to the within instrument is in the genuine handwriting of the said_ and was subscribed thereto by like order of the board of directors in the presence of him/her the said Attorney in Fact. Subscribed and sworn to before me, this 7th .day of-Y1!!2023 M DNED ST€FFTY Nor.ry Pubti( - se.t Ha6ilton (o!nty - St.te ol lndi... Commieiion!omb€, P0680890 My Commltelon Erpi..r Feb 29, U02,1 Performance Bond > ("City") and storm weter hspection & Mainrenance seryices ("Contractor")have entered into a contract for work on the Project ("Prolect"). The Contract is incorporated by reference into this Performance Bond ("Bond"). 1.General. Underthrs Bond, Contractor as Principal and l[!!1fIl]I!:g its surety ("Surety"), are bound to City as obligee for an amount not lqss than $ 25,555.00 to ensure Contractofs faithful performance of its obligations under the Contract. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor. Surety's Obligations. Surety's obligations are co-extensive with Contractor's obligations under the Contracl. lf Contractor fully performs its obligations under the Contract, including its warranty obligations under the Contract, Surety's obligations under this Bond will become null and void. Otherwise, Surety's obligations will remain in full force and effect. Waiver. Surety waives any requirement to be notified of and further consents to any alterations to the Contract made under the applicable provisions of the Contract Documents, includlng changes to the scope of Work or extensions of time for performance of Work underthe Contract, Surety waivesthe provisions of Civil Code 55 2819 and 2845. Application of Contract Balance. Upon making a demand on this Bond for completion of the Work prior to acceptance of the Project, City will make the Contract Balance available to Surety for completion of the Work under the Contract. For purposes of this provision, the Contract Balance is deflned as the total amount payable by City to Contractor as the Contract Price minus amounts already paid to Contractor, and minus any liquidated damages, credits, or backcharges to which City is entitled under the terms of the Contract. Contractor Default. Upon written notification from City of Contractor's termination for default under Article 13 of the Contract General Conditions, time being of the essence, Surety must act within the time specified in Article 13 to remedy the default through one of the following courses of action: 5.1 Anange for completion of the Work under the Contract by Contractor, wjth City's consent, but only if Contractor is in default solely due to its financial inability to complete the work; 5,2 Arrange for completion of the Work under the Contract by a qualified contractor acceptable to City, and secured by performance and payment bonds issued by an admitted surety aa required by the Contract Documents, at Surety's expansei or 5.3 Waive its right to complete the Work under the Contract and reimburse City the amount of City's costs to have the remaining Work completed. Surety Default. lf Surety defaults on its obligations under the Bond, City will be entitled to recover all costs it incurs due to Surety's default, including legal, design professional, or delay costs. Notice. Any notice to Surety rnay be given in the manner specified in the Contract and sent to Surety as follows: Attn Arch lnsurance company 6. 7. 2021 Form PERFORMANCE BOND 2. 3. 5. AddfeSS 3 Farbo6de 210 Hudson St, Suite 3oo City/State/Zip: Jersev clv NJ 07311 PhOne. 877-68&2724 FaX 866,266-3630 Email craims@archinsu.ance.com Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the <:ry19133-> County Superior Court, and no other place. Surety will be responsible for City's attorneys'fees and costs in any action to enforce the provisions of this Bond. Effective Date; Execution. This Bond is entered into and effective on 2023. SURETY: Arch lnsurance Company Business Name s/Marcn 7 , 2023 Date Name, Title (Attach Acknowledgment with Notary Seal and Power of Aftomey) CONTRACTOR: Storm Water lnspection & Maintenance Services ^4t'\t),,E( --' )€) '..-.-/,'' \lhturi-. ' t/ 3/8/23 uate ' END OF PERFORMANCE BOND 2421 Fotrrt PERFORMANCE BOND Aaroh State of lndiana county of jlj!jlj!!-, on this 7th (Acknowledgement of Surety) March 2023 before meday of personally appeared Aaron Steffev , to me personally known, whq being by me duly sworn, did depose and say that s/he resides in Philadelphia ; that s/he is the AEgEeyi1Eeg-of the- Arch lnsurance Comoanv the corporation described in and which executed the within instrument; that by order of the board of directors of said corporation s/he signed his/her name thereto and said further says that s/he is acquainted with Aaron sterrev and knows him/her to be the-4!!94.qy-i.!li!!-of the said corporation; that the signature of the said- i".1*1"v {3:E::eI-subscribed to the within instrument is in the genuine handwriting of the said_ and was subscribed thereto by like order of the board of directors in the presence of him/her the said Attorney in Fact. Subscribed and sworn to before me, this7th day of___yIt- 2023 ,,A'LORED STEFFEY Nor.ry Plbri. - Se.l H.milton Counry - si.te ot lndi.n. Commirno. Number NP0680890 ^{y CooBlrtion Expner Fet,29, 202'l Arc 0000348983 Bond SU 7104625-0000 Ihis Power ofAtlorney limils the ac6 oflhose ndmed hercin, dnd they hate no aathoriq to bind the Con parr! exce in the wrrrMr Md to rte etuat heretn stqled. Not voldlot Note, Loan, Ldter oJcftalil Culrenqr' Rale, htercst Rote Resl.le tlal t/alae Guamntees. POWER OF ATTOPNEY Krow All Peno[s By T]€se Preseob: New Jerscy (hereirufter referred to a5 the "Company") does hereby appoint: Aaron Steffey rnd Chris Kolger ofHoustor,'tX (EACH) its true and lawful Attomey(s)in-Fact, to make, execute, seal, and delirer from the date ofissuance ofthis powff for and on its behalfas surety, and es its act and deed: Any and all bonds, undenakings, recognizances and other surety obligalions, in the penal sum not exceeding Qlc-llilliglEilgluDdled ]tpural[Do]lars (1.500-000.00) 'This authority does not permit the same obljgation to be split inio t\ro or more bo.ds ln order io hrirg each such bond wdrin the dollar limit ofauthoriry as set forth herein. Th€ execution ofsuch bonds, mdertalings, recogflizances and other surcty obligations in pusuance ofthese pres€nls shall be as binding upon the said Cornpany as fully and ampl-v to all intenls and purposes, as if lhe same had been duly executed and acknowledged by iis regularly electcd officers at its pnncipal administrative ofiice in Jersey City, New Jersey. This Power ofAnomey is execuled by authority ofresolutions adopted by unanimous consent ofthe Board of Directors ofthe Company on December I l, 2020, true and accumte copies ofwhich are herernafter set forlh and are hereby certified to by the undersigned Secretary as being in lull lorce aDd cffecl: "VOTED, 'l]lat the Chairmar of dre lloard, lhe President, or thc Executrve Vice Prcsident, or any Senior Vice President, ofthe Sure5/ Busin€ss Division, or their appoinlees desiSnated in writrng and filed with rhe Secretar, or lhe Secrctar shall havc the powerand authority loappoinr agents and attomeys-in-llcq and to authorizc them subject to lhe timitalions set forth in their respectiv€ pow€rs ofatlomey, to executc on behall oflhe Company, and attach the seal of lie Compary thereto. bonds. undertukings, recogDizances and other surety obligalions obligatory in the nature thereof, and any such officers ofthe Company may appoinr agenrs for acc€ptairce ol This Po*€r of Attomey is signed. sealed and certified by facsimile under aM by authority of the follo\rlng resolutron adopted by the unarirnous consent of the Board of Directors ofthe Company on December 11,20201 VOTED, That the si8nalure ofthe Chairman ofthe Board, the President, or the Executive vice President, or any Senior vice Presidenl of the Surety Business Drisaon, or their appointees designated in *ritrng and filed '*'ilh &e Secrtar,', and the signature ofth€ Secretar. the seal ofthe Company. and certifcatioDs by the Secretary, may be affixed by lacsimile or any power of attomey or bond executed pursuant to the resolution adopted by the Board of Directors on December I l, 2020, and any such power so executed, sealed and cenified with .especr to any bond or Lmdenaking to which it is attached, shall conrinue lo be valid and binding upon thc Company Io -{ttested and Certilied Regan A. Shulman, Secretary S'I'ATE OF PE\\SYLV,\\I-,I. SS (.OtJN'I"Y OF PHII,ADIiI,PIII A SS Stephen C. Ruschak, Executive Vice President I. Michele Trifmdi, a Notary Public, do ltreby cerdry that Regan A. Shulman and Stcphen C Ruschak pe$onally kno*,n to me 1l] be the same persons whose namcs are respe€tirely as Secr€lary and Executive Vice Presrdent of the Arch lnsurance Company, a Coeoaion orgBnized and cxisting under the laus ofrhe State of Missouri, subscribed to the foregoing instrument. appeared befbre me this day in person and severally acknolrledged that lhey bejng thereunlo duly authorized sjgned, sealed with ihe corpoEte seal and delivered the said instrument as the free and \,olunlar_v act ofsaid corporation and as their oPn fie€ and voluntary acis for the uses and purposes therein set lbrth . lloUry Lal xlcr'rlu t8t?0o, |loa-y ftrblk thl!.ldpnb Co(, y rayCottnl$h. Er9t .r Jdilt, iO, CERTIFICATION ,t -----> . r!/.L-*a,J.--t;\./ Michele Tripodi. Nolary Public My commrssion expires 07/31n025 l. Regan A. Shulnrl, , Secretary ofthe Arch Insurance Company. do hereby certiti thai the attached Power of Attorrey dat€d 4!l!gl!i?92! on behalfofthe percon(s) as listed above is a true and conect copy and that ihe same has b€en in full force and efcct since the datethereofand is in full forcc and effcct on th€ date of thrs certificate; and I do further ceniry that the s6id Stephen C Ruschak. lvho executed the Power of Attomey as Eyecutive vice President, was on the date of cxecution ofthe attached Power of Attomey the duly elected Executive Vice Presiden! ofthe Arch Insurance Company lN TESTIMONY WHEREOF, I have hereunto subscribcd my name and amxed the corporate seal of the Arch lnsurance Company on this ?th day ofM{rch,2023. /t^- A 'q)4-'-- - RegA6'A. shutman. secretary Thjs Po\\€r ot Attomey limits the acts ol drose named thcrein to the bonds and undcnakings specifically namcd thcrejn and they have t1o tu brnd thc Compa.)' excepi in the manner and to the extent herein stated PLEASE SEND AI,L CLAIM INQIJIRIES RELATINC TO THTS BOND TO TT{D FOLLOWI\iG ADDRESS: Arch ltrsurrnce- Srrety Division 3 Parkway, Suite 1500 Philadelphia, PA 19102 fo vetw the outhenticity ol this Power ol Attoney, pleose contact Arch lnsutonce Compony ot Pleote reler to the above nomed Attorney-in-Fod ond the detoils olthe bond to which the power is dttached, ArcPoA040120 Printed in U.S.A. %s' (:, SWIMS for Design, fabrication, & installation of 10 Stormtek devices & repair 4 Stormtek devices Final Audit Report 2023-04-14 Created:2023-04-10 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAcgZCaVfO-6zIf8SGkVomZKwAbMoMXJ5E "SWIMS for Design, fabrication, & installation of 10 Stormtek dev ices & repair 4 Stormtek devices" History Document created by City of Cupertino (webmaster@cupertino.org) 2023-04-10 - 5:11:33 PM GMT- IP address: 35.229.54.2 Document emailed to Jindy Garfias (jindyg@cupertino.org) for approval 2023-04-10 - 5:14:25 PM GMT Document approved by Jindy Garfias (jindyg@cupertino.org) Approval Date: 2023-04-10 - 5:15:03 PM GMT - Time Source: server- IP address: 174.85.76.31 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2023-04-10 - 5:15:06 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2023-04-10 - 5:38:08 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Todd Hudson (todd@swimsclean.com) for signature 2023-04-10 - 5:38:11 PM GMT Email viewed by Todd Hudson (todd@swimsclean.com) 2023-04-11 - 3:11:23 PM GMT- IP address: 107.1.58.70 Email viewed by Todd Hudson (todd@swimsclean.com) 2023-04-13 - 6:54:42 PM GMT- IP address: 174.194.205.151 Email viewed by Todd Hudson (todd@swimsclean.com) 2023-04-14 - 8:48:45 PM GMT- IP address: 107.1.58.70 Document e-signed by Todd Hudson (todd@swimsclean.com) Signature Date: 2023-04-14 - 8:50:53 PM GMT - Time Source: server- IP address: 107.1.58.70 Document emailed to christopherj@cupertino.org for signature 2023-04-14 - 8:50:56 PM GMT Email viewed by christopherj@cupertino.org 2023-04-14 - 8:51:30 PM GMT- IP address: 104.47.73.126 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen 2023-04-14 - 8:52:19 PM GMT- IP address: 136.24.22.194 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2023-04-14 - 8:52:21 PM GMT - Time Source: server- IP address: 136.24.22.194 Document emailed to Ursula Syrova (she/her) (ursulas@cupertino.org) for signature 2023-04-14 - 8:52:24 PM GMT Email viewed by Ursula Syrova (she/her) (ursulas@cupertino.org) 2023-04-14 - 9:07:58 PM GMT- IP address: 104.47.73.126 Document e-signed by Ursula Syrova (she/her) (ursulas@cupertino.org) Signature Date: 2023-04-14 - 9:08:30 PM GMT - Time Source: server- IP address: 98.45.194.62 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2023-04-14 - 9:08:34 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2023-04-14 - 9:11:48 PM GMT- IP address: 104.47.73.254 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2023-04-14 - 9:12:04 PM GMT - Time Source: server- IP address: 67.188.176.248 Agreement completed. 2023-04-14 - 9:12:04 PM GMT Names and email addresses are entered into the Acrobat Sign service by Acrobat Sign users and are unverified unless otherwise noted.