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23-037 Anderson's Tree Care for Orchard MaintenanceOrchard Maintenance Page 1 of 9 Professional/Consulting Contracts /Version: October 2021 MAINTENANCE SERVICES AGREEMENT 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”), and Anderson's Tree Care Specialists (“Contractor”), a Corporation for Orchard Maintenance, and is effective on the last date signed below (“Effective Date”). 2. SERVICES Contractor agrees to provide the services and perform the tasks (“Services”) set forth in detail in Scope of Services, attached here and incorporated as Exhibit A. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 3. TIME OF PERFORMANCE 3.1 This Agreement begins on the Effective Date and ends on March 31, 2026 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on the effective date and shall be completed by March 31, 2026. At the end of the term, the City shall have options to extend the term on a year-to-year basis up to an additional two years. The City shall exercise each one-year option by providing written notice to the Contractor at least 30 days prior to the expiration of the applicable term. Upon exercise of the option, the parties will amend Section 4.1 to reflect the increase in the contract compensation. The City’s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the Schedule of Performance, attached and incorporated here Exhibit B. 3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $65,746.00 annually, for a total of $197,238.00 (“Contract Price”), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City. In the event the City exercises its Orchard Maintenance Page 2 of 9 Professional/Consulting Contracts /Version: October 2021 option set forth in Section 3.1, this Section 4.1 will be amended to increase the annual amount by $65,746.00, as necessary. 4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable completed and the amount due for the preceding month. Within thirty (30) days of completion of Services, Contractor must submit a requisition for final and complete payment of costs and pending claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any further payment or other obligations under the Agreement. 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits, worker’s compensation, or other benefits from the City. 5.2 Contractor’s Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Services in a competent and professional manner and according to the highest standards and best practices in 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 Services as required by law and have procured a City Business License, if required by the Cupertino Municipal Code. 5.4 Subcontractors. Only Contractor’s employees are authorized to work under this Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approved subcontractor. 5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement. 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 an y 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. 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. Orchard Maintenance Page 3 of 9 Professional/Consulting Contracts /Version: October 2021 6. PROPRIETARY/CONFIDENTIAL INFORMATION In performing this Agreement, Contractor may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details the disclosure of which to third parties may be damaging to City. Contractor shall hold in confidence all City information provided by City to Contractor and use it only to perform this Agreement. Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium (collectively, “Work Product”), prepared by Contractor in connection with this Agreement will be the exclusive property of the City upon completion of the work to be performed hereunder or upon termination of this Agreement, to the extent requested by City. In any case, no Work Product shall be shown to any third-party without prior written approval of City. 7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all Work Product arising out of this Agreement is considered “works for hire” and all copyrights to the Work Product will be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights. Contractor may use copies of the Work Product for promotion only with City’s written approval. 7.3 Patents and Licenses. Contractor 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 Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of the following: (a) The original Services for which Contractor was hired; (b) Completion of the original Services by others; (c) Subsequent additions to the original Services; and/or (d) Other City projects. 7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work Product, on recycled paper and copied on both sides, except for one single-sided original. 8. RECORDS Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor’s performance, benchmarks and deliverables, which must be available Orchard Maintenance Page 4 of 9 Professional/Consulting Contracts /Version: October 2021 to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four (4) years from the date of City’s final payment. Contractor acknowledges that certain documents generated or received by Contractor in connection with the performance of this Agreement, including but not limited to correspondence between Contractor and any third party, are public records under the California Public Records Act, California Government Code section 6250 et seq. Contractor shall comply with all laws regarding the retention of public records and shall make such records available to the City upon request by the City, or in such manner as the City reasonably directs that such records be provided. 9. ASSIGNMENT Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Agreement and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. 10. PUBLICITY / SIGNS Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the 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 Contract, without prior written approval from the City. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and consultants (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) of every nature, arising directly or indirectly from this Agreement or in any manner relating to any of the following: (a) Breach of contract, obligations, representations, or warranties; (b) Negligent or willful acts or omissions committed during performance of the Services; (c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; (d) Unauthorized use or disclosure of City’s confidential and proprietary Information; (e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must Orchard Maintenance Page 5 of 9 Professional/Consulting Contracts /Version: October 2021 accept a tender of defense upon receiving notice from City of a third-party claim. At City’s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Agreement. 11.3 Contractor’s duties under this section are not limited to the Contract Price, workers’ compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee. 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 Agreement, a purchase order, or other transaction. 11.5. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.6. This Section 11 shall survive termination of the Agreement. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor’s compensation or terminating the Agreement. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor’s ability to perform. Contractor is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act. 13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a “public works” component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Orchard Maintenance Page 6 of 9 Professional/Consulting Contracts /Version: October 2021 Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or its employees or sub-contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interes t in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of Regulations. Contractor agrees to abide by the City’s 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 reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek indemnification under Section 11 of this Agreement. 14. PROJECT COORDINATION City Project Manager. The City assigns Jimmy Tan as the City’s representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. City reserves the right to substitute another Project manager at any time, and without prior notice to Contractor. Contractor Project Manager. Subject to City approval, Contractor assigns Doug Anderson as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor’s Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City’s Project Manager about the progress with the work or any delays, as required under the Scope of Services. City written approval is required prior to substituting a new Representative. 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment, and will be given reasonable time to assemble the work and close out the Services. With City’s pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum of ten percent (10%) of the total time expended to date in the performance of the Services. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be Orchard Maintenance Page 7 of 9 Professional/Consulting Contracts /Version: October 2021 made until Contractor closes out the Services and delivers the Work Product. 17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue 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 evidence 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. 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 a breach shall not constitute waiver of another provision or breach. 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of every kind or nature between the Parties, and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties. Any modification of this Agreement will be effective only if in writing and signed by each Party’s authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between any term, clause, or provision of the main Agreement and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling. 22. INSERTED PROVISIONS Each provision and clause required by law for this Agreement is deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. The Parties will collaborate to implement this Section, as appropriate. 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. Orchard Maintenance Page 8 of 9 Professional/Consulting Contracts /Version: October 2021 24. SEVERABILITY/PARTIAL 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. The Parties agree to work in good faith to amend this Agreement to carry out its intent. 25. SURVIVAL All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law, and Attorney Fees, shall survive the Agreement and remain in full force and effect. 26. NOTICES All notices, requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino Office of the City Manager 10300 Torre Ave., Cupertino CA 95014 Attention: Jimmy Tan Email: JimmyT@cupertino.org To Contractor: Anderson's Tree Care Specialists 121 N 27th St San Jose CA 95116 Attention: Doug Anderson Email: doug@andersonstreecare.com 27. EXECUTION The person executing this Agreement on behalf of Contractor represents and warrants that Contractor has full right, power, and authority to enter into and carry out all actions contemplated by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Contractor. This Agreement may be executed in counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. Orchard Maintenance Page 9 of 9 Professional/Consulting Contracts /Version: October 2021 IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CITY OF CUPERTINO CONTRACTOR A Municipal Corporation By By Name Name Title Title Date Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Doug Anderson President May 24, 2023 Christopher D. Jensen Pamela Wu City Manager May 25, 2023 May 25, 2023 EXHIBIT A SCOPE OF WORK 1. GENERAL REQUIREMENT A. The Contractor shall furnish all labor, tools, equipment, materials, and supervision necessary to perform the pruning, fertilization, weed and pest control, tree removal and replacement, minor irrigation maintenance and other related services as described in this section. B. All work performed by Contractor shall conform to the latest International Society of Arboriculture (ISA), The American National Standard for Tree Pruning (ANSI A300) and specifications l isted herein. Contractor shall comply with Standards of CAL-OSHA and the American National Standard Institute, Z133 Safety Requirements. C. Contractor shall exercise precautions as necessary when working adjacent to aerial and subterranean utilities. In the event that aerial utility wires present a hazard to the Contractor’s personnel or others near the work site, work is to immediately cease, and the appropriate utility company notified. If the work requires excavation, the Contractor is responsible for appropriate notification of Underground Service Alert (USA). D. Contractor shall staff each project work site with a Supervisor who holds a current International Society of Arboriculture (ISA) Certified Arborist Credential. All Supervisors shall possess adequate technical background to ensure that all work is accomplished in compliance with applicable codes and regulations. All Contractor personnel engaged in the actual tree pruning shall hold, at minimum, a current ISA Certified Tree Worker credential. All other personnel (e.g. ground workers) shall have sufficient training so as to be capable of performing their functions in a safe and proficient manner. E. The Contractor shall comply with all local sound control and noise level rules, regulations, and ordinances. No internal combustion engine shall operate on the project without a muffler of the type recommended by the manufacturer. Should any muffler or other control device sustain damage, the Contractor shall promptly remove the equipment and shall not return said equipment to the job until the device is repaired or replaced. Said noise and vibration level requirements shall apply to all equipment on the job or related to the job, including, but not limited to truck, transit mixers or transit equipment that may or may not be owned by the Contractor. F. Contractor shall comply with all air pollution control rules, regulations, ordinances, and statues. The Contractor shall comply with the provisions of the Clean Air Act, as amended (42 W.S.C. 1957 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et. Seq.) and the regulations there under (40 C.F.R. part 15). G. The Contractor shall follow the appropriate best management practices contained in the California Storm Water Best Management Practice Handbook, which is available from the Santa Clara Valley Water District Non-Point Source Program. H. Upon completion of the scheduled work or at the end of the day, whatever occurs first, the Contractor shall clean the grounds occupied by Contractor in connection with the project, of all rubbish, debris, excess material, temporary structures, and equipment, leaving the entire site of the work in a neat and presentable condition. I. The Contractor shall be responsible for the installation and removal of the temporary construction signs upon the completion of the Work. All signs shall be kept graffiti free at all times. J. The Contractor shall submit work schedules to the Director of Public Works or his/her designee for approval as needed. K. Existing improvements in areas adjoining the property whereon tree pruning work is being performed shall be protected from injury or damage resulting from operations of the Contractor. L. Contractor is responsible for compliance with all laws applicable to orchard maintenance. Without limiting the generality of the foregoing, Contractor shall possess all permits and licenses required by the State of California, Department of Pesticide Regulation prior to the application of any pesticide or other regulated substance. Any pesticide used shall be listed on the State of California, Department of Pesticide Regulation’s approved list and the Contractor shall submit all pesticide use reports to the County Agricultural Commissioner. Restricted materials, if used, shall be used and possessed only in accordance with a permit issued the County Agricultural Commissioner. M. Contractor is fully responsible for any and all damage done to public or private property that results from the Contractor’s operations. Without limiting the generality of the foregoing this shall include, but not be limited to, the repair, removal and replacement, at Contractor’s expense, of shrubs, trees, vines, turf grass, groundcover or other landscape items that are lost or damaged due to negligence in pest and disease control practices, fungicide damage, or lack of proper maintenance and operations. This shall also include any damage done to buildings and other improvements due to the Contractor’s negligence. N. Contractor is responsible for the protection and securing of its work sites. This may include opening and closing of said sites. The Contractor shall post signage in the Orchard for any applications or procedures in the interest of public safety. The City shall be notified at least 48 hours prior to any such closure. O. Contractor shall be required to respond promptly to any emergency situations reported by City staff and have the ability to be contacted at all times. If the City performs any work in the Orchard (e.g., for repair of the irrigation system), City shall notify Contractor a minimum of five (5) business days prior to any and all work that is scheduled to be performed in the orchard by the City, its contractors and/or employees except in an emergency in which case City will notify Contractor as soon as reasonably possible. If additional orchard maintenance is required as a consequence of work performed in the orchard by the City, its contractors and/or employees, this additional scope of work will be negotiated with the Contractor and, if approved, will be paid to the Contractor by the City. 2. TREE PRUNING All trimming/maintenance work shall be accordance with pruning standards as established in accordance with the standard practices for the fruit tree variety. The specific techniques employed shall be consistent with industry practices for the size and species of the tree being trimmed /pruned. All dead, broken, damaged, loose, diseased or insect infested limbs, branches and stubs shall be removed from the site within five (5) days. Contractor shall consult the Director of Public Works or his/her designee before making any cuts that could result in permanent disfigurement of the structure of any tree. If Contractor is, at any time, unclear on what course of action to follow in the field, Contractor shall consult with the Director of Public Works or his/her designee. a. Contractor shall comply with Standards of CAL-OSHA and the American National Standard Institute Safety Requirements. b. No hooks, gaffs, spurs or climbers will be used by anyone employed for such trimming. Any vine plant growing on trees shall be removed at ground level. c. Final pruning cuts shall be made without leaving stubs. Cuts shall be made in a manner to promote fast callous growth. d. Contractor shall maintain at least one (1) English speaking arborist, on-site, at all times. e. When trimming fungus, disease or fire blight infected limbs or fronds, all pruning tools shall be cleaned after each cut with alcohol or bleach. f. Topping shall not be done without prior approval of the City. 3. FERTILIZATION The type of fertilizer, timing of fertilization, and application rates shall be consistent with the accepted standards for the varieties of fruit trees grown in the orchard and applied based on a lab analysis of soil and leaf samples taken at the appropriate time of year. Applications of fertilizer shall be applied in a manner consistent with label directions. Fertilizer must be approved by the City prior to each application. Supplemental fertilizer applications for areas showing poor growth may be requested by the City at Contractor's expense. Fertilizer shall be delivered to the site in the original unopened container bearing the manufacturer's guaranteed analysis. Any fertilizer that becomes caked or damaged, making it unsuitable for use, will not be permitted. Immediately following application at each site, the fertilizer shall be thoroughly watered into the soil. The Director of Public Works or his/her designee shall be notified one week prior to the date of the application by the Contractor. 4. WEED AND PEST CONTROL Contractor shall conduct maintenance in accordance with the City of Cupertino’s Integrated Pest Management (IPM) Program. Deviation from the IPM Program may only be permitted with prior approval of the Director of Public Works or his/her designee. Applicator shall possess a valid California Department of Pesticide Regulation (DPR) applicator’s license or certificate. A. Weeds The Contractor shall be responsible for the control and elimination of weeds affecting trees. Weed growth must not exceed twelve (12) inches in height except for cover crops permitted to grow to its mature height. No pesticides may be used for weed control in the Orchard. B. Deer The Contractor is responsible for the protection of vulnerable trees from deer damage. This may be in the form of deer repellant or other methods approved by the City. Materials used for deer control must be approved by the City prior to use. C. Gophers and Ground Squirrels The Contractor is responsible for a consistent and humane trapping procedure. 5. TREE REMOVAL and REPLACEMENT Specifications for Complete Tree Removal a. Trees that are dying or otherwise in poor health and in need of replacement are to be removed and replaced after consulting with the City. b. Trees shall be felled in a manner consistent with industry practices with the primary emphasis on the safety of the public and the protection of adjacent property. At no time shall branches, limbs or tree trunks be allowed to freefall and create damage of any type. c. While loading and handling debris, the Contractor shall maintain control at all times so as not to result in damage to the public rights of way or private property. In addition, the Contractor shall not drop logs or trunks so as to create undue noise or impact shock disturbances or damages to public and/or private property. d. Removal of entire tree, stump remaining shall be no higher than four (4) inches above soil grade and shall be removed within 48 hours after tree removal. e. Work shall begin within 10 days after each request and be diligently pursued until completion. f. Contractor shall make all arrangements necessary to have power or utility lines temporarily disconnected, if necessary, for the safe removal of the tree. g. When the removal requires special or additional means, the Contractor shall discuss with the City and obtain authorization to proceed. h. The Contractor is responsible for the survival of trees for one year after planting. Where new trees are planted among established trees, the Contractor is to provide any necessary supplemental watering (over and above existing programmed irrigation) by hand to specific trees. Activating an entire station to water several plants will not be permitted. Plant material that fails within the one-year period is to be replaced promptly at the Contractor's cost. Proposals shall assume that 2 trees will be removed/planted per year at each site. 6. MINOR IRRIGATION MAINTENANCE The Contractor will be responsible for performing minor irrigation maintenance. The Contractor will operate the irrigation as required to maintain proper tree health throughout the orchard. Watering shall be accomplished at times of the day or night to ensure the health of all trees, and so that the inconvenience to people using the area will be kept to a minimum. Any water runoff or overflow onto roadways, sidewalks, and hard surface areas shall be kept to an absolute minimum. The Contractor will conduct a system check of the irrigation system prior to an irrigation event to ensure optimum operation and to report any repairs or concerns to the Director of Public Works or his/her designee prior to any work being done. Minor repairs such as broken drip irrigation lines and valve replacement shall be performed by the Contractor after receiving prior approval from the City. The Contractor shall be responsible for all components of the irrigation system from the riser up. The City will maintain the water main, service and valves. TYPICAL ANNUAL MAINTENANCE SCHEDULE 1. Remove and replace 14 trees in March-April 2023  Trees to be removed to be identified by City staff  Replacement Species to be determined by desire and availability 2. Weed and Pest control four visits each once per quarter starting in March/April of 2023 3. Minor irrigation maintenance as required from May through September 4. Apricot pruning (180 trees; 170 at Varian; 10 at Blackberry Farm) after harvest in July or August 2023 5. Orange pruning (158 trees at Stocklmeir) in June or July 2023 6. Fertilize all trees in March/April 2023 WIDELIFE CONSIDERATIONS Contractor is to note that a number of federally- and state-protected wildlife species inhabit the Stevens Creek corridor. Among the species are steelhead fish, turtles, woodrats, various birds of prey such as hawks, owls and white-tailed kites, and various migratory birds and songbirds. These animals and their habitat are protected by various federal and state regulations. Those regulations affect activities that could affect wildlife directly or indirectly, including actions on the golf course that could affect the creek and its water quality. Such actions include fertilizer use, pesticide use, irrigation practices, vehicle washing, and other procedures. Contractor shall meet with City staff and representatives annually to review maintenance activities relative to these considerations. Contractor is encouraged to meet with City representatives more frequently as needed to ensure compliance. Further considerations are noted below. NESTING BIRDS Contractor shall be aware of nesting birds on trees in the orchard. If tree trimming or removal is required during the nesting period, the Contractor shall conduct a survey for nesting birds prior to performing the work. TERRESTRIAL WILDLIFE VEGETATION TRIMMING AND REMOVAL: No trees shall be trimmed or removed from February 1 to August 31, unless it has been reviewed for presence of nests and protected wildlife by a biologist or qualified professional or the City Naturalist. TREE REMOVAL: Certain trees are protected by City ordinance. No tree shall be removed or significantly pruned without advance approval by the City representative. BIRD BREEDING SEASON: Breeding season for raptors, birds of prey such as hawks and owls, is normally from February 1 to August 31, with highest activity usually from early or mid-March onward. Most such birds and their nests and breeding are protected by law. Routine orchard maintenance may proceed during breeding season. However, during this time contractor shall endeavor to reduce disturbing activities, such as loud noises or vibration, within 250 feet of a raptor nest site and within 400 feet of a white-tailed kite nest site. Songbird nests are generally protected within a 100-foot radius. RODENTICIDE USE: Use of any and all rodenticides [to poison squirrels, gophers, mice, rats] or chemicals is banned, unless authorized in advance in writing by the City. LIGHTING: Contractor is to minimize use of nighttime lighting, especially in the vicinity of the creek. Contractor is to operate the golf maintenance facility in a manner that minimizes use of outdoor lighting to the extent feasible. Lights shall only be used when workers are present, unless the City provides advance authorization in writing. This stricture applies to outdoor lighting of the maintenance yard. EMISSIONS: Contractor is to minimize the use of exhaust- and emission-producing equipment to the extent compatible with performance of the work. Contractor shall favor the use of equipment powered by electrical, batteries or hand rather than diesel, gas or oil, as feasible. WILDLIFE REPORTING: Contractor shall report any observations of the following to the City representative within 1 working day:  active raptor nests  turtles  woodrats [potentially San Francisco dusky-footed woodrat]  frogs [potentially California red-legged frog]  salamanders [potentially California tiger salamander]  other potentially protected wildlife WATER QUALITY CONSIDERATIONS: Protection of Creek & Ponds RUNOFF: No runoff from any applications of chemicals, pesticides or fertilizer shall flow into creeks or ponds nor to drainage inlets that discharge to creeks or ponds, including runoff from allowable products. No runoff other than clean rainwater shall flow into the creek. Contractor shall consider weather conditions and watering regimes in order to schedule application of fertilizer, pesticides and chemicals in a manner that prevents runoff to creeks or ponds. Contractor shall operate irrigation system and watering activities in a manner that prevents irrigation runoff as well. Contractor shall monitor and test for runoff of any chemicals, pesticides, or fertilizer to ensure runoff does not occur. EQUIPMENT WASHING: All equipment shall be washed in a facility that filters wash water and is connected to the sanitary sewer system. No washing is permitted elsewhere. <<contractor name>> Exhibit A-Scope of Work, Schedule & Compensation <<job name>> 1 of 1 EXHIBIT B SCHEDULE OF PERFORMANCE Contractor shall complete all work annually as specified in Exhibit A through the contract term of March 31, 2026. This Schedule of Performance establishes the milestones for commencement and completion of the Tasks for Maintenance Services as specified in Exhibit A. <<contractor name>> Exhibit A-Scope of Work, Schedule & Compensation <<job name>> 1 of 1 EXHIBIT C COMPENSATION or RATE SHEET 1. MAINTENANCE SERVICES BUDGET Contractor shall complete all work specified in Exhibit A for a not to exceed amount of $65,746 annually, for a total of $197,238. Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 1 Form Updated Jan. 2022 Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED 1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant’s profession, with limits no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. If written on a claims made form: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the Services. EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 2 Form Updated Jan. 2022 OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’s insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better. Verification of Coverage Consultant must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term. Subconsultants Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 5/2/2023 License # 0757776 (805) 361-1018 (805) 832-6581 22322 Anderson's Tree Care Specialists, Inc. 121 N. 27th Street San Jose, CA 95116 20260 41394 A 1,000,000 X X NPC100708600 4/1/2023 4/1/2024 100,000 5,000 1,000,000 2,000,000 2,000,000 1,000,000B X 504610155516001 4/16/2023 4/16/2024 2,000,000A NEC600723200 4/1/2023 4/1/2024 2,000,000 0 C X CST5024318 10/8/2022 10/8/2023 1,000,000 Y 1,000,000 1,000,000 A Workmanship Error NPC100708600 4/1/2023 Each Occurrence 1,000,000 Re: Blackberry Farms. City of Cupertino, its City Council, boards and commissions, officers, employees, and volunteers are included as Additional Insureds under the General Liability policy, additional insured coverage applies when required by written contract per the attached form #CG 20 10 12 19. City of Cupertino, its City Council, boards and commissions, officers, employees, and volunteers are included as Additional Insureds under the Auto Liability policy per the attached form #50461AIS01. Waivers of Subrogation applies under the General Liability and Workers Compensation policies per attached forms #XIL436 1208 & WC 04 03 06 (Ed. 04-84). City of Cupertino 10555 Mary Ave. Cupertino, CA 95014 ANDETRE-02 DCHEN HUB International Insurance Services Inc. PO Box 3310 Santa Barbara, CA 93130-3310 Saengdao Vongpanya CAL-CC-CertReqs@hubinternational.com Greenwich Insurance Company Infinity Select Insurance Company Benchmark Insurance Company X 4/1/2024 X X X X X X X X X THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL GENERAL LIABILITY CG 20 10 12 19 POLICY NUMBER: © Insurance Services Office, Inc., 2018 Page of CG 20 10 12 19 ADDITIONAL INSURED – OWNERS, LESSEES OR CONTRACTORS – SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1.Your acts or omissions; or 2.The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1.The insurance afforded to such additional insured only applies to the extent permitted by law; and 2.If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B.With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1.All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2.That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Location(s) Of Covered Operations Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Name Of Additional Insured Person(s) Or Organization(s) Blanket as required by written contract Blanket as required by written contract NPC100708600 12 © Insurance Services Office, Inc., 2018 CG 20 10 12 19Page of C.With respect to the insurance afforded to these additional insureds, the following is added to Section III – Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1.Required by the contract or agreement; or 2.Available under the applicable limits of insurance; whichever is less. This endorsement shall not increase the applicable limits of insurance. 22 Form XIL 436 1208 ©2008, XL America, Inc.Page 1 of 8 Includes copyrighted material of Insurance Services Office, Inc., with its permission. ENDORSEMENT # This endorsement, effective 12:01 a.m. 4/1/2023 , forms a part of Policy No. issued to by THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY XL Plus Endorsement This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART GENERAL DESCRIPTION OF COVERAGE - This endorsement broadens coverage. The following listing is a general coverage description only. Limitations and exclusions may apply to these coverages. Read this endorsement carefully to determine rights, duties, and what is and is not covered. A.Reasonable Force – Bodily Injury or Property Damage B.Damage To Premises Rented To You Extension ●●Perils of fire, lightning, explosion, smoke, aircraft or vehicles, riot or civil commotion, vandalism, leakage from fire extinguishing equipment or water damage ●Limit increased to $300,000 C.Aircraft Chartered with Crew D.Non-Owned Watercraft E.Personal and Advertising Injury – Assumed by Insured Contract F.Increased Supplementary Payments ●Cost for bail bonds increased to $5,000 ●Loss of earnings increased to $1,000 per day G.Broadened Named Insured H.Blanket Additional Insured – Managers or Lessors of Premises I.Blanket Additional Insured – Lessor of Leased Equipment J.Injury to Co-Employees and Co-Volunteer Workers K.Knowledge and Notice of Occurrence or Offense L.Unintentional Omission M.Liberalization N.Blanket Waiver of Subrogation O.Incidental Medical Malpractice Injury P.Extension of Coverage – Bodily Injury Q.Coverage Territory NPC100708600 Anderson's Tree Care Specialists Inc Greenwich Insurance Company Form XIL 436 1208 ©2008, XL America, Inc. Page 2 of 8 Includes copyrighted material of Insurance Services Office, Inc., with its permission. A. REASONABLE FORCE – BODILY INJURY OR PROPERTY DAMAGE Exclusion a.Expected Or Intended Injury of Part 2., Exclusions of Coverage A. Bodily Injury And Property Damage Liability of Section I – Coverages is deleted in its entirety and replaced by the following: [This insurance does not apply to:) Expected or Intended Injury or Damage “Bodily injury” or “property damage” expected or intended from the standpoint of the insured. This exclusion does not apply to “bodily injury” or “property damage” resulting from the use of reasonable force to protect persons or property. B. DAMAGE TO PREMISES RENTED TO YOU EXTENSION 1.The last paragraph of 2.Exclusions of Coverage A. Bodily Injury And Property Damage Liability of Section I - Coverages is deleted in its entirety and replaced by the following: Exclusions c. through n.do not apply to damages to premises while rented to you, or temporarily occupied by you with permission of the owner, caused by fire, lightning, explosion, smoke, aircraft or vehicles, riot or civil commotion, vandalism, leakage from fire extinguishing equipment or water damage. A separate limit of insurance applies to this coverage as described in Section III- Limits of Insurance. 2.This insurance does not apply to damage to premises while rented to you, or temporarily occupied by you with permission of the owner, caused by: a.Rupture, bursting, or operation of pressure relief devices; b.Rupture or bursting due to expansion or swelling of the contents of any building or structure, caused by or resulting from water; or c.Explosion of steam boilers, steam pipes, steam engines, or steam turbines. 3.Paragraph 6.of Section III-Limits of Insurance is deleted in its entirety and replaced by the following: 6.a.Subject to Paragraph 5.above, the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of “property damage” to any one premises while rented to you, or temporarily occupied by you with permission of the owner, caused by fire, explosion, lightning, smoke, aircraft or vehicle, riot or civil commotion, vandalism, leakage from fire extinguishing equipment or water damage. The Damage To Premises Rented To You Limit will apply to all damage proximately caused by the same “occurrence”, whether such damage results from fire, explosion, lightning, smoke, aircraft or vehicle or riot or civil commotion, vandalism, leakage from fire extinguishing equipment or water damage or any combination of any of these. b.The Damage to Premises Rented to You Limit will be the higher of: (1)$300,000; or (2)The amount shown on the Declarations for Damage to Premises Rented to You Limit. Form XIL 436 1208 ©2008, XL America, Inc. Page 3 of 8 Includes copyrighted material of Insurance Services Office, Inc., with its permission. 4.Paragraph 9.a.of the definition of “insured contract” under Section V-Definitions, is deleted in its entirety and replaced by the following: [“Insured contract” means:] a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire, lightning, explosion, smoke, aircraft or vehicle, riot or civil commotion, vandalism, leakage from fire extinguishing equipment or water damage to premises while rented to you, or temporarily occupied by you with the permission of the owner is not an “insured contract”. 5.This Article B. does not apply if coverage for Damage to Premises Rented to You of Coverage A.Bodily Injury And Property Damage Liability of Section I – Coverages is excluded by endorsement. C. AIRCRAFT CHARTERED WITH CREW 1.The following is added to the exceptions contained in Exclusion g., Aircraft, Auto or Watercraft in Part 2., Exclusions of Coverage A. Bodily Injury And Property Damage of Section I – Coverages: [This exclusion does not apply to:) Aircraft chartered with crew to any insured. 2.This Article C.does not apply if the chartered aircraft is owned by any insured. 3.The insurance provided by this Article C.shall be excess over any valid and collectible insurance available to the insured, whether primary, excess, contingent or on any other basis, except for insurance purchased specifically by you to be excess of this policy. D. NON-OWNED WATERCRAFT 1.The exception contained in Subparagraph (2)of Exclusion g.Aircraft. Auto or Watercraft in Part 2., Exclusions of Coverage A.Bodily Injury And Property Damage Liability of Section I – Coverages is deleted in its entirety and replaced by the following: (2)A watercraft you do not own that is: (a)50 feet long or less; and (b)Not being used to carry persons or property for a charge; 2.This Article D.applies to any person who, with your expressed or implied consent, either uses or is responsible for the use of the watercraft. 3.This insurance provided by this Article D.shall be excess over any other valid and collectible insurance available to the insured, whether primary, excess, contingent or on any other basis, except for insurance purchased specifically by you to be excess of this policy. E. PERSONAL AND ADVERTISING INJURY – ASSUMED BY INSURED CONTRACT 1.Exclusion e.Contractual Liability in Part 2., Exclusions of Coverage B.Personal And Advertising Injury Liability of Section I – Coverages is deleted in its entirety and replaced by the following: Form XIL 436 1208 ©2008, XL America, Inc. Page 4 of 8 Includes copyrighted material of Insurance Services Office, Inc., with its permission. [This insurance does not apply to:) e. Contractual Liability “Personal and Advertising Injury” for which the insured has assumed liability in a contract or agreement. This exclusion does not apply to liability for damages: 1.That the insured would have in the absence of the contract or agreement; or 2.Assumed in a written contract or agreement that is an “insured contract”; provided the “personal and advertising injury” is caused by an offense which occurs subsequent to the execution of the contract or agreement. 2.Subparagraph f.of the definition of “insured contract” Section V.-Definitions is deleted in its entirety and replaced by the following: f.That part of any other contract or agreement pertaining to your business, including an indemnification of a municipality in connection for work performed for a municipality, under which you assume the tort liability of anther party to pay for “bodily injury”, “property damage” or “personal and advertising injury” to a third party or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. 2.This Article E.does not apply if Coverage B. Personal And Advertising Injury Liability is excluded by endorsement. F. INCREASED SUPPLEMENTARY PAYMENTS Subparagraphs 1. b.and d.of Supplementary Payments – Coverages A And B of Section I - Coverages are amended as follows: 1.In Subparagraph b.,the amount we will pay for the cost of bail bonds is increased up to $5,000. 2.In Subparagraph d.,the amount we will pay for a loss of earnings is increased up to $1,000 a day. G. BROADENED NAMED INSURED 1.The Named Insured in Item 1. of the Declarations is as follows: The person or organizations named in Item 1.of the Declarations and any organization, other than a partnership or joint venture, over which you maintain ownership or majority interest on the effective date of the policy. However, coverage for any such organization will cease as of the date that you no longer maintain ownership of, or majority interest in, such organization. 2.This Article G.does not apply to any person or organization for which coverage is excluded by endorsement. Form XIL 436 1208 ©2008, XL America, Inc. Page 5 of 8 Includes copyrighted material of Insurance Services Office, Inc., with its permission. H. BLANKET ADDITIONAL INSURED – MANAGERS OR LESSORS OF PREMISES 1.Section II-Who Is An Insured is amended to include as an insured any person or organization with whom you have agreed in a written contract executed prior to loss (an “additional insured”), but only with respect to liability arising out of the ownership, maintenance or use of that part of any premises leased to you, subject to the following provisions: a.Limits of Insurance. The Limits of Insurance afforded to the “additional insured” shall be the limits you agreed to provide, or the limits shown on the Declarations, whichever is less. b.The insurance afforded to the “additional insured” does not apply to: (1)Any “occurrence” that takes place after you cease to be a tenant in that premises; (2)Any premises for which coverage is excluded by endorsement; or (3)Structural alterations, new construction or demolition operations performed by or on behalf of such “additional insured”. 2.The insurance afforded to the “additional insured” is excess over any valid and collectible insurance available to such “additional insured”, unless you have agreed in a written contract for this insurance to apply on a primary or contributory basis. I. BLANKET ADDITIONAL INSURED – LESSOR OF LEASED EQUIPMENT 1.Section II-Who Is An Insured is amended to include an “additional insured” (as defined in Article H. above), but only with respect to their liability arising out of maintenance, operation or use by you of equipment leased to you by such “additional insured”, subject to the following provisions: a.Limits of Insurance. The Limits of Insurance afforded to the “additional insured” shall be the limits which you agreed to provide, or the limits shown on the Declarations, whichever is less. b.The insurance afforded to the “additional insured” does not apply to: (1)Any “occurrence” that takes place after the equipment lease expires; or (2)“Bodily injury” or “property damage” arising out of the sole negligence of such additional insured. 2.The insurance provided to the “additional insured” is excess over any valid and collectible insurance available to such “additional insured”, unless you have a written contract for this insurance to apply on a primary or contributory basis. J. INJURY TO CO-EMPLOYEES AND CO-VOLUNTEER WORKERS 1.Section II- Who Is An Insured is amended to include your “employees” as insureds with respect to “bodily injury” to a co-“employee" in the course of the co-”employee’s” employment by you, or to your “volunteer workers” while performing duties related to the conduct of your business, provided that this coverage for your “employees” does not apply to acts outside the scope of their employment by you or while performing duties unrelated to the conduct of your business. Form XIL 436 1208 ©2008, XL America, Inc. Page 6 of 8 Includes copyrighted material of Insurance Services Office, Inc., with its permission. 2.Section II – Who Is An Insured is amended to include your “volunteer workers” as insureds with respect to “bodily injury” to a co-“volunteer worker” while performing duties related to the conduct of your business, or to your “employees” employment by you, provided that this coverage for your “volunteer workers” does not apply while performing duties unrelated to the conduct of your business. K. KNOWLEDGE AND NOTICE OF OCCURRENCE OR OFFENSE The following is added to Paragraph 2.,Duties In The Event of Occurrence, Offense, Claim or Suit of the Section IV -Commercial General Liability Conditions: Notice of an “occurrence” or of an offense which may result in a claim under this insurance shall be given as soon as practicable after knowledge of the “occurrence” or offense has been reported to any insured listed under Paragraph 1.of Section II-Who Is An Insured or any “employee” (such as insurance, loss control, risk manager or administrator) designated by you to give such notice. Knowledge of any other “employee(s)” of an “occurrence” or of an offense does not imply that you also have such knowledge. Notice shall be deemed prompt if given in good faith as soon as practicable to your workers compensation insurer. This applies only if you subsequently give notice to us as soon as practicable after any insured listed under Paragraph 1.of Section II – Who Is An Insured or an “employee” (such as an insurance, loss control, or risk manager or administrator) designated by you to give such notice discovers that the “occurrence”, offense or claim may involve this policy. L. UNINTENTIONAL OMISSION The following is added to Paragraph 6.,Representations, of Section IV-Commercial General Liability Conditions: The unintentional omission of, or unintentional error in, any information provided by you shall not prejudice your rights under this insurance. However, this Article L.does not affect our right to collect additional premium or to exercise our right of cancellation or nonrenewal in accordance with applicable state insurance laws or regulations. M. LIBERALIZATION The following is added to Section IV-Commercial General Liability Conditions: Liberalization After the issuance of this policy, if we adopt a change in our forms or rules which would broaden the coverage provided by any form that is a part of this policy without a premium charge, the broader coverage will apply to this policy. This extension is effective upon the approval of such broader coverage in your state. Form XIL 436 1208 ©2008, XL America, Inc. Page 7 of 8 Includes copyrighted material of Insurance Services Office, Inc., with its permission. N. BLANKET WAIVER OF SUBROGATION The following is added to Section IV-Commercial General Liability Conditions: Waiver of Subrogation We waive any right of recovery we may have against any person or organization because of payments we make for injury or damage arising out of premises owned or occupied or rented or loaned to you; ongoing operations performed by you or on your behalf, done under a contract with that person or organization; “your work”; or “your products”. We waive this right where you have agreed to do so as part of a written contract, executed by you prior to loss. O. INCIDENTAL MEDICAL MALPRACTICE INJURY 1.For insurance applicable to this Article O, the definition of “bodily injury” in Section V - Definitions is amended to include, “Incidental Medical Malpractice Injury”. 2.The following definition is added to Section V- Definitions: “Incidental medical malpractice injury” means “bodily injury”, mental anguish, sickness or disease sustained by a person, including death resulting from any of these at any time, arising out of the rendering of, or failure to render, the following services: a.Medical, surgical, dental, laboratory, x-ray or nursing service or treatment, advice or instruction, or the related furnishing of food or beverages; b.The furnishing or dispensing of drugs or medical, dental or surgical supplies or appliances; c.First aid; or d.“Good Samaritan Services”. As used in this Article O., “Good Samaritan Services” are those medical services rendered or provided in an emergency and for which no remuneration is demanded or received. 3.Paragraph 2.a.(1)(d)of Section II -Who Is An Insured does not apply to any registered nurse, licensed practical nurse, emergency medical technician or paramedic employed by you, but only while performing the services described in Paragraph 2.above and while acting within the scope of their employment by you. Any “employees” rendering “Good Samaritan Services” will be deemed to be acting within the scope of their employment by you. 4.The following exclusion is added to Paragraph 2.Exclusions of Coverage A.– Bodily Injury And Property Damage Liability of Section I–Coverages: [This insurance does not apply to:) Willful Violation of Penal Statute Liability arising out of the willful violation of a penal statute or ordinance relating to the sale of pharmaceuticals by or with the knowledge or consent of the insured. 5.For the purposes of determining the applicable Limits of Insurance, any act or omission, together with all related acts or omissions in the furnishing of services described in Paragraph 2.a.through 2.d.above to any one person, will be considered one “occurrence”. 6.This Article O.does not apply if you are in the business or occupation of providing any of the services described in Paragraph 2.above. Form XIL 436 1208 ©2008, XL America, Inc. Page 8 of 8 Includes copyrighted material of Insurance Services Office, Inc., with its permission. 7.The insurance provided by this Article O.shall be excess over any other valid and collectible insurance available to the insured, whether primary, excess, contingent or on any other basis, except for insurance purchased specifically by you to be excess of this policy. P. EXTENSION OF COVERAGE – BODILY INJURY The definition of “bodily injury” Section V- Definitions is deleted in its entirety and replaced by the following: 3.“Bodily injury” means bodily injury, mental anguish, mental injury, shock, fright, disability, humiliation, sickness or disease sustained by a person, including death resulting from any of these at any time. Q. COVERAGE TERRITORY The definition of “coverage territory” Section V- Definitions is deleted in its entirety and replaced by the following: 4.“Coverage territory” means anywhere in the world. This insurance does not apply to: a.“bodily injury” or “property damage” that takes place; or b.“personal and advertising injury” caused by an offense committed outside the United States of America (including its possessions and territories), Canada and Puerto Rico, unless a “suit” on the merits (to determine the insured’s responsibility to pay damages to which this insurance applies) is brought in the United States of America (including its possessions and territories), Canada or Puerto Rico. This insurance does not apply to damage, loss, cost or expenses in connection with any “suit” brought outside the United States of America (including its possessions and territories), Canada or Puerto Rico. ! ! ! " #%& ' "#$%&%##'(&)*(+)%& ,%-"$.#)/+)%& ( 0"&1%#2(+)%&-"3%4)$#"56)#"%&3740"&+0)$"&%#$"2"&+)$)$$6"$6-$"56"&++%/#"/(#(+)%&%1+0"/%3).7 )) *+,$-$.-#$## / ) *+,$-$.-#$##0,$-$.-#$#1 2 + & 3-&+ & / 3+&4$#51,. )3 62 &( ('& 72 )$50.5! / ,,8& ,9.53 & & 2 72 01416 4 2100119 aO 10100 Infinity Commercial Auto "1 "1700 Great Oaks Way, Suite 450" "Alpharetta, GA 30022" Underwritten by: Infinity Select Insurance Company Customer Service: (800) 722-33 €)"1 ClaimS Service: (800) 334-1661 ADDITIONAL NAMED INSURED ENDORSEMENT Copy To Policy 10 Number Expiration Date Clolt!so6fMCauffp*AnSn@o, Its Clty Counall, boa Cupertlno, CA 980'l4 504-61015-5516.001 04/16/2024 12:01 Named Insured Andersons Tree Care Specialists Inc This endorsement is attached to and forms a part of the listed policy. No changes will be effective prior to the time changes are requested. --- ----' - " " = -" Addit!onal:Insured " = ' City of Cupertino, its City Council, boa Part A Liability Coverage, is changed as follows: The definition of insured is changed to include tte additional insured named above. Adding an insured will not increase the limit of our liability. The insurance provided by this endorsement will be excess over any other valid and collectible insurance. All other parts of this Policy remain unchanged. ADDL INSuRED COPY AMEND DATE: 04/16/2023 50461 AISOI ENDORSEMENT: 3-1 Customer Service: (800) 722-339'f 01416 421001224 020100 Infinity Commercial Auto "11700 Great Oaks Way, Suite 450" "Alpharetta, GA 30022" Underwritten by: Infinity Select Insurance Company Claims Servlce: (800) 334-1661 PRIMARY AND NONCONTRIBUTORY ENDORSEMENT C+lty of Cup*rtlno, Itsi Clty Council, 5oa 10858MaryAv*. Cupertlno, CA 96014 504.61015-5516.001 04/16/2024 12:01 a..m. Named Insured Andersons Tree Care Specialists Inc This endorsement Is attached to and forms a part of the 11sted policy. The following endorsement applies only If Form Number 500PNCVOl appears on your Declarations Page. This endorsement modifies the insurance provided under your COMMERCIAL AUTO POLICY. PART A - LIABILITY COVERAGE OTHER iN8uRANCE - PART A ONLY The followinq is added to this section: Tanhyeoct%veerrjangseuraaffnocredeadVaqlra%?er\ooaunrCga drB,rnloenrae,i@lnlsAuuret%Puonl4ceyriysopurirmpa0ryllcytoparonVd.l:eiR%ot attseekcontributionfrom a' Con'rm":rV:ala}ruet:dPonlicWyrw'oni:ildinbeapcriff:raycAnOdrwa!ffmnoetnslelehk1co'hntrito:oenr?oemaffa0nyrdeotheurnidnesruraoncuer available to such additional insured; and b, Suchadditionalinsuredisanamedinsuredundersuchotherinsurance. ALL OTHER TERMS, LIMITS, CONDITIONS, AND PROVISIONS OF THE POLICY REMAIN UNCHANGED. ADDL INSuRED COPY AMEND DATE: 04/16/2023 500PNCVO1 ENDORSEMENT: 3-1 Maintenance Services Contract Anderson's Tree Care for Orchard Maintenance - CAO approved edits Final Audit Report 2023-05-25 Created:2023-05-24 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAdPuC3dqeJzpcsj_RSiNpTMDQxYIf4fTK "Maintenance Services Contract Anderson's Tree Care for Orch ard Maintenance - CAO approved edits" History Document created by City of Cupertino (webmaster@cupertino.org) 2023-05-24 - 9:31:41 PM GMT- IP address: 98.97.57.92 Document emailed to Julia Kinst (juliak@cupertino.org) for approval 2023-05-24 - 9:34:04 PM GMT Document approved by Julia Kinst (juliak@cupertino.org) Approval Date: 2023-05-24 - 9:37:07 PM GMT - Time Source: server- IP address: 98.97.57.92 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2023-05-24 - 9:37:08 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2023-05-24 - 11:03:47 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Doug Anderson (doug@andersonstreecare.com) for signature 2023-05-24 - 11:03:49 PM GMT Email viewed by Doug Anderson (doug@andersonstreecare.com) 2023-05-24 - 11:07:38 PM GMT- IP address: 96.82.97.182 Document e-signed by Doug Anderson (doug@andersonstreecare.com) Signature Date: 2023-05-24 - 11:08:43 PM GMT - Time Source: server- IP address: 96.82.97.182 Document emailed to christopherj@cupertino.org for signature 2023-05-24 - 11:08:45 PM GMT Email viewed by christopherj@cupertino.org 2023-05-24 - 11:26:05 PM GMT- IP address: 104.47.73.126 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen 2023-05-24 - 11:26:19 PM GMT- IP address: 136.24.22.194 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2023-05-24 - 11:26:21 PM GMT - Time Source: server- IP address: 136.24.22.194 Document emailed to Pamela Wu (pamelaw@cupertino.org) for signature 2023-05-24 - 11:26:22 PM GMT Document shared with Debra Nascimento (DebraN@cupertino.org) by City of Cupertino (webmaster@cupertino.org) 2023-05-25 - 3:02:27 PM GMT- IP address: 98.97.57.92 Email viewed by Pamela Wu (pamelaw@cupertino.org) 2023-05-25 - 3:11:19 PM GMT- IP address: 104.47.74.126 Document e-signed by Pamela Wu (pamelaw@cupertino.org) Signature Date: 2023-05-25 - 3:11:30 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2023-05-25 - 3:11:32 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2023-05-25 - 3:43:35 PM GMT- IP address: 104.28.111.138 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2023-05-25 - 3:43:48 PM GMT - Time Source: server- IP address: 104.28.123.181 Agreement completed. 2023-05-25 - 3:43:48 PM GMT