The URL can be used to link to this page

23-064 The Pun Group - Professional External Auditing ServicesProfessional External Auditing Services Page 1 of 9 Professional/Consulting Contracts /Version: October 2021 PROFESSIONAL/CONSULTING SERVICES AGREEMENT 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”), and The Pun Group, LLP (“Contractor”), a Limited Liability Company - Partnership for Professional External Auditing Services, 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 June 30, 2026 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s services shall begin on the effective date and shall be completed by June 30, 2026 with the City having the option to extend the term for two years as set forth in Exhibits B and C. 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 $420,859.00 (“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. 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 Professional External Auditing Services Page 2 of 9 Professional/Consulting Contracts /Version: October 2021 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 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. 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. 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 confidentia l details the disclosure of which to third parties may be damaging to City. Contractor shall hold in confidence Professional External Auditing Services Page 3 of 9 Professional/Consulting Contracts /Version: October 2021 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 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 Professional External Auditing Services Page 4 of 9 Professional/Consulting Contracts /Version: October 2021 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 mu st 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’ Professional External Auditing Services Page 5 of 9 Professional/Consulting Contracts /Version: October 2021 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 employe es 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, 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. Professional External Auditing Services Page 6 of 9 Professional/Consulting Contracts /Version: October 2021 13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of 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 Kristina Alfaro 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 Kenneth Pun 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 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 Professional External Auditing Services Page 7 of 9 Professional/Consulting Contracts /Version: October 2021 this Agreement must be filed with the Superior Court for the County of Santa Clara, S tate 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. 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 Professional External Auditing Services Page 8 of 9 Professional/Consulting Contracts /Version: October 2021 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: Kristina Alfaro Email: KristinaA@cupertino.org To Contractor: The Pun Group, LLP 200 E. Sandpointe Ave., Suite 600 Santa Ana, CA 92707 Attention: Kenneth Pun Email: Ken.Pun@pungroup.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. Professional External Auditing Services 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 Kenneth Pun Managing Partner Kenneth Pun 06/22/23 City Manager 06/23/23 Pamela Wu Christopher D. Jensen 06/23/23 EXHIBIT A Scope of Services A. Scope of Work to be Performed The City of Cupertino is soliciting the services of qualified firms of certified public accountants to audit its financial statements for the fiscal year ending June 30, 2023, and the two subsequent fiscal years thereafter, with the option to audit the fin ancial statements for each of the two subsequent fiscal years. The selected independent auditor will be required to perform the following tasks: 1. Annual Financial Statement Audit: The audit firm will perform an audit of all funds of the City of Cupertino. The audit will be conducted in accordance with auditing standards generally accepted in the United States of America and Government Auditing Standards, issued by the Comptroller of the United States. The City’s Annual Financial Report (ACFR) will be prepared and processed by the audit firm. The ACFR will be in full compliance with all current GASB pronouncements. The audit firm will render its auditor's report on the basic financial statements, which will include both Government-Wide Financial Statements and Fund Financial Statements. The audit firm will also apply limited audit procedures to Management’s Discussion and Analysis (MD&A) and required supplementary information. 2. Management Letter: The audit firm shall issue a separate “management letter” that includes recommendations for improvements in internal control, accounting procedures, and other significant observations that are considered to be non - reportable conditions. Management letters should be addressed to the City Manager. 3. Single Audit Report: The audit firm will perform a single audit on the expenditures of federal grants in accordance with OMB Circular A -133 and the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards for fiscal years in which the Cit y exceeds the applicable reporting thresholds. In addition, the audit firm will render the appropriate reports on internal controls and compliance. The single audit report should include an appropriate schedule of expenditures of federal awards, footnotes, findings and questioned costs, including reportable conditions and material weaknesses, and a follow up on prior audit findings, where required. 4. Proposition 111 (Gann Appropriations Limit) AUP: The audit firm shall perform agreed-upon audit procedures pertaining to the City’s Gann Appropriations Limit and render a letter, annually, to the City regarding compliance. 5. Investment Policy AUP: The audit firm shall perform agreed-upon audit procedures including tests of internal controls pertaining to the City ’s Investment Policy and render a letter, annually, to the City regarding compliance and level of reliance on related internal controls. The procedures as a minimum will include tests suiffcient to satisfy two provisions in the City ’s Investment Policy 1) independent verification of securities held in custody for the City as specified in the section “Safekeeping of Securities” and 2) an independent analysis of internal control, account activity, and compliance with policies and procedures as specified in the section “Internal Control.” 6. Storm Drain AUP: The audit firm shall perform agreed-upon audit procedures pertaining to the City’s 2019 Clean Water and Storm Protection Fee and render a letter, annually, to the City regarding compliance with the Cupertino Municipal Code. B. Auditing Standards to be Followed To meet the requirements of this Request for Proposal, the audit shall be performed in accordance with all applicable and generally accepted auditing standards, including, but not limited to, the following: • Generally accepted auditing standards as set forth by the American Institute of Certified Public Accountants • The standards applicable to financial audits contained in the most current version of the Generally Accepted Government Auditing Standards (Yellow Book), issued by the Comptroller General of the United States • The provisions of the Single Audit Act as amended in 1996 • The provisions of U. S. Oiffce of Management and Budget (OMB) Circular A -133, Audits of State and Local Governments and Non-Profit Organizations and the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards for fiscal years in which the City exceeds the applicable reporting thresholds. C. Working Paper Retention and Access to Working Papers All working papers and reports must be retained, at the auditor's expense, for a minimum of five (5) years, unless the firm is notified, in writing, by the City of Cupertino of the need to extend the retention period. The auditor will be required to make working papers available, upon request, to the following parties or their designees: • City of Cupertino • Department of Housing and Urban Development • U.S. Governmental Accountability Oiffce (GAO) • Parties designated by the federal or state governments or by the City of Cupertino as part of an audit quality review process • Auditors of entities of which the City of Cupertino is a sub-recipient of grant funds • Auditors of entities of which the City of Cupertino is a component unit D. Reports to be Issued Following the completion of the audit of the fiscal year's financial statements, the auditor shall issue: • Annual Comprehensive Financial Report: An Annual Comprehensive Financial Report (ACFR) covering all City funds. In addition to the ACFR, the auditor shall provide a report on internal control over financial reporting and on compliance based on the audit of the financial statements performed in accordance with Government Auditing Standards (16 copies and 1 digital file in searchable Adobe Acrobat format). • Single Audit Report: A Single Audit Report, which includes a report on compliance and on the internal control over financial reporting based on an audit of financial statements performed in accordance with Government Auditing Standards and a report on compliance and internal controls over compliance applicable to each major federal award program. In addition, the Single Audit Report should also include all other necessary components as required by OMB Circular A-133 and the Uniform Administrative Requirements, Cost Principles, and Audit requirements for Federal Awards (8 copies and one digital file in searchable Adobe Acrobat format). • Proposition 111 (Gann Appropriations Limit) AUP Report: A report on the City’s compliance with the Gann Appropriations Limit. • Investment Policy AUP Report: A report regarding compliance with the City’s Investment Policy after performing agreed-upon procedures (AUP). Specifically, the report should allow the Audit Committee and City Council to place reliance on the internal controls of the City in arriving at the investment schedule provided periodically to the Audit Committee including account activity and compliance with policies and procedures listed in the City's Investment Policy. • Storm Drain AUP Report: A report regarding the compliance with the City’s Municipal Code after performing agreed-upon procedures (AUP) on the 2019 Clean Water and Storm Protection Fee. • TDA: A separate audit if the City receives Transportation Development Act (TDA) funds which require a financial and compliance audit and a separate audit report in accordance with the TDA section of the California Administrative Code. • State Controller’s Report: A State Controller’s Annual Report of Financial Transactions for the City. • Report on Internal Controls: A report examining the City’s internal accounting and administrative controls to determine that accounting procedures are adequate to safeguard assets and provide reasonable assurance of proper recording of financial transactions. In the required reports on internal controls, the auditor shall communicate any reportable conditions found during the audit. A reportable condition shall be defined as a significant deficiency in the design or operation of the internal control structure, which could adversely affect the organization's ability to record, process, summarize and report financial data consistent with the assertions of management in the financial statements. Reportable conditions that are also material weaknesses shall be identified as such in the report. Non-reportable conditions discovered by the auditors shall be reported in a separate letter to management, which shall be referred to in the reports on internal controls. The reports on compliance shall include all instances of noncompliance. Irregularities and illegal acts. Auditors shall be required to make an immediate, written report of all irregularities and illegal acts or indications of illegal acts of which they become aware to the following parties: Pamela Wu, City Manager Christopher Jensen, City Attorney Kristina Alfaro, Treasurer/Director of Administrative Services Angela Chen, Chair of the Audit Committee Reporting to the Audit Committee. Auditors shall ensure that the Audit Committee is able to review the annual audit report and management letter in advance of final release to City Council. Reporting to the Administrative Services Department. Auditors shall ensure that the Director of Administrative Services is informed of each of the following: • The auditor’s responsibility under generally accepted auditing standards. • Management judgments and accounting estimates. • Significant accounting policies. • Significant audit adjustments. • Other information in documents containing audited financial statements. • Disagreements with management. • Management consultation with other accountants. • Major issues discussed with management prior to retention. • Diiffculties encountered in performing the audit. E. Special Considerations • The City of Cupertino has obtained the “Certificate of Achievement for Excellence in Financial Reporting” from the Government Finance Oiffcers Association of the United States and Canada. The City intends to continue to receive this award annually and will expect the ACFR to meet the requirements of that program. • The City of Cupertino has determined that the United States Department of Housing and Urban Development will function as the cognizant agency in accordance with the provisions of the Single Audit Act Amendments of 1996 and U.S. Oiffce of Management and Budget (OMB) Circular A-133, Audits of State and Local Governments and Non-Profit Organizations, and the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. The schedule of expenditures of federal awards and related auditor's report, as well as the reports on the internal controls and compliance, are not to be included in the annual comprehensive financial report, but are to be issued separately. The auditors will be responsible for preparation of this report. • The auditors will be consulted on an occasional basis throughout the year as an informational source. Auditors may be asked to provide guidance on the implementation of Governmental Accounting Standards Board (GASB) requirements and specifics of federal and state regulations as they may affect local government accounting. In addition, the auditors may be asked to assist with the implementation of the new pronouncements. • The audit partner or manager may be required to occasionally attend a City Council or Audit Committee meeting to explain or clarify financial statement information or accounting requirements. EXHIBIT B Schedule of Performance The effective date of the agreement is the date of its acceptance and the end date is three years after the effective date, with the option to extend the contract for two additional years. EXHIBIT C Compensation 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. 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 6/14/2023 Burnham WGB Insurance Solutions CA Insurance License 0F69771 15901 Red Hill Avenue Tustin CA 92780 Sarah Caballero 714-824-8300 714-573-1770 Sarah.Caballero@wgbib.com Continental Casualty Company 20443 PUN&M-1 National Fire Insurance of Hartford 20478ThePunGroup,LLP 200 East Sandpointe Avenue,Suite 600 Santa Ana CA 92707 Valley Forge Insurance Company 20508 Great Divide Insurance Company 25224 1632066373 C X 2,000,000 X 1,000,000 10,000 X $0 deductible 2,000,000 4,000,000 X Y 7013134445 3/1/2023 3/1/2024 4,000,000 B 1,000,000 X X 7013117645 3/1/2023 3/1/2024 A X 1,000,00070131364683/1/2023 3/1/2024 X 10,000 C XWC7131362893/1/2023 3/1/2024 No Deductible 1,000,000 1,000,000 1,000,000 D E&O Retro 12/29/11 CAB20235903 3/1/2023 3/1/2024 3,000,000 agg 1,000,000 Great Divide Insurance Company AM Best Rating A+XV Certificate holder(s)is/are named as additional insured per attached endorsements subject to the terms &conditions of the policy: General Liability Additional Insured &Waiver of Subrogation #SB146932G General Liability Primary &Contributory #CNA80103XX Umbrella Policy follows form for General Liability,Auto Liability and Employers Liability Auto Primary and Non-Contributory &Waiver of Subrogation #CA00011013 Auto Designated Insured #IL 02 70 07 20 See Attached... The City of Cupertino 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: PUN&M-1 1 1 Burnham WGB Insurance Solutions The Pun Group,LLP 200 East Sandpointe Avenue,Suite 600 Santa Ana CA 92707 25 CERTIFICATE OF LIABILITY INSURANCE Work Comp waiver of subrogation applies #WC 00 03 13 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). Business Auto Policy Policy Endorsement EXTENDED COVERAGE ENDORSEMENT - BA PLUS THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM I.LIABILTY COVERAGE A.Who Is An Insured The following is added to SECTION II, Paragraph A.1., Who Is An Insured: 1.a.Any incorporated entity of which the Named Insured owns a majority of the voting stock on the date of inception of this Coverage Form; provided that, b.The insurance afforded by this provision A.1. does not apply to any such entity that is an insured under any other liability policy providing auto coverage. 2.Any organization you newly acquire or form, other than a limited liability company, partnership or joint venture, and over which you maintain majority ownership interest. The insurance afforded by this provision A.2.: a.Is effective on the acquisition or formation date, and is afforded only until the end of the policy period of this Coverage Form, or the next anniversary of its inception date, whichever is earlier. b.Does not apply to: (1)Bodily injury or property damage caused by an accident that occurred before you acquired or formed the organization; or (2)Any such organization that is an insured under any other liability policy providing auto coverage. 3.Any person or organization that you are obligated to provide Insurance where required by a written contract or agreement is an insured, but only with respect to legal responsibility for acts or omissions of a person for whom Liability Coverage is afforded under this policy. 4.An employee of yours is an insured while operating an auto hired or rented under a contract or agreement in that employee's name, with your permission, while performing duties related to the conduct of your business. Policy, as used in this provision A. Who Is An Insured, includes those policies that were in force on the inception date of this Coverage Form but: 1.Which are no longer in force; or 2.Whose limits have been exhausted. B.Bail Bonds and Loss of Earnings SECTION II, Paragraphs A.2.a.(2) and A.2.a.(4) are revised as follows: 1.In a.(2), the limit for the cost of bail bonds is increased from $2,000 to $5,000, and 2.In a.(4), the limit for the loss of earnings is increased from $250 to $500 a day. C.Fellow Employee SECTION II, Paragraph B.5 does not apply. BUA 7013117645 Endorsement No: 12; Page: 1 of 5 Policy Page: 49 of 53 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: SCA 23 500 D (10-2011) Endorsement Effective Date: Policy No: Policy Effective Date: 03/01/2023Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Business Auto Policy Policy 3. a. b. 4. a. b. c. 5. B. 1. 2. a. b. c. d. 3. 4. Legal Action Against Us No one may bring a legal action against us under this Coverage Form until: There has been full compliance with all the terms of this Coverage Form; and Under Covered Autos Liability Coverage, we agree in writing that the "insured" has an obligation to pay or until the amount of that obligation has finally been determined by judgment after trial. No one has the right under this policy to bring us into an action to determine the "insured's" liability. Loss Payment – Physical Damage Coverages At our option, we may: Pay for, repair or replace damaged or stolen property; Return the stolen property, at our expense. We will pay for any damage that results to the "auto " from the theft; or Take all or any part of the damaged or stolen property at an agreed or appraised value. If we pay for the "loss", our payment will include the applicable sales tax for the damaged or stolen property. Transfer Of Rights Of Recovery Against Others To Us If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after "accident" or "loss" to impair them. General Conditions Bankruptcy Bankruptcy or insolvency of the "insured" or the "insured's" estate will not relieve us of any obligations under this Coverage Form. Concealment, Misrepresentation Or Fraud This Coverage Form is void in any case of fraud by you at any time as it relates to this Coverage Form. It is also void if you or any other "insured", at any time, intentionally conceals or misrepresents a material fact concerning: This Coverage Form; The covered "auto"; Your interest in the covered "auto"; or A claim under this Coverage Form. Liberalization If we revise this Coverage Form to provide more coverage without additional premium charge, your policy will automatically provide the additional coverage as of the day the revision is effective in your state. No Benefit To Bailee – Physical Damage Coverages We will not recognize any assignment or grant any coverage for the benefit of any person or organization holding, storing or transporting property for a fee regardless of any other provision of this Coverage Form. Policy No: Underwriting Company: BUA 7013117645 Policy ; Page: 11 of 16 Policy Page: 24 of 53National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Policy Effective Date: 03/01/2023 Form No: CA 00 01 10 13 © Copyright Insurance Services Office, Inc., 2012 Business Auto Policy Policy 5. a. (1) (2) b. c. d. 6. a. b. 7. a. b. (1) (2) (3) (4) (5) Other Insurance For any covered "auto" you own, this Coverage Form provides primary insurance. For any covered "auto" you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance. However, while a covered "auto" which is a "trailer" is connected to another vehicle, the Covered Autos Liability Coverage this Coverage Form provides for the "trailer" is: Excess while it is connected to a motor vehicle you do not own; or Primary while it is connected to a covered "auto" you own. For Hired Auto Physical Damage Coverage, any covered "auto" you lease, hire, rent or borrow is deemed to be a covered "auto" you own. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". Regardless of the provisions of Paragraph a. above, this Coverage Form's Covered Autos Liability Coverage is primary for any liability assumed under an "insured contract". When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis. Premium Audit The estimated premium for this Coverage Form is based on the exposures you told us you would have when this policy began. We will compute the final premium due when we determine your actual exposures. The estimated total premium will be credited against the final premium due and the first Named Insured will be billed for the balance, if any. The due date for the final premium or retrospective premium is the date shown as the due date on the bill. If the estimated total premium exceeds the final premium due, the first Named Insured will get a refund. If this policy is issued for more than one year, the premium for this Coverage Form will be computed annually based on our rates or premiums in effect at the beginning of each year of the policy. Policy Period, Coverage Territory Under this Coverage Form, we cover "accidents" and "losses" occurring: During the policy period shown in the Declarations; and Within the coverage territory. The coverage territory is: The United States of America; The territories and possessions of the United States of America; Puerto Rico; Canada; and Anywhere in the world if a covered "auto" of the private passenger type is leased, hired, rented or borrowed without a driver for a period of 30 days or less, provided that the "insured's" responsibility to pay damages is determined in a "suit" on the merits, in the United States of America, the territories and possessions of the United States of America, Puerto Rico or Canada, or in a settlement we agree to. We also cover "loss" to, or "accidents" involving, a covered "auto" while being transported between any of these places. Policy No: Underwriting Company: BUA 7013117645 Policy ; Page: 12 of 16 Policy Page: 25 of 53National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Policy Effective Date: 03/01/2023 Form No: CA 00 01 10 13 © Copyright Insurance Services Office, Inc., 2012 SB146932G (Ed.10-19) BLANKET ADDITIONAL INSURED AND LIABILITY EXTENSION ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESSOWNERS LIABILITY COVERAGE FORM BUSINESSOWNERS COMMON POLICY CONDITIONS TABLE OF CONTENTS I.Blanket Additional Insured Provisions A.Additional Insured –Blanket Vendors B.Miscellaneous Additional Insureds C.Additional Provisions Pertinent to Additional Insured Coverage 1.a.Primary –Noncontributory provision 1.b.Definition of "written contract" 2.Additional Insured –Extended Coverage II.Liability Extension Coverages A.Bodily Injury –Expanded Definition B.Broad Knowledge of Occurrence C.Estates,Legal Representatives and Spouses D.Fellow Employee First Aid E.Legal Liability –Damage to Premises F.Personal and Advertising Injury –Discrimination or Humiliation G.Personal and Advertising Injury –Broadened Eviction H.Waiver of Subrogation –Blanket I.BLANKET ADDITIONAL INSURED PROVISIONS A.ADDITIONAL INSURED –BLANKET VENDORS Who Is An Insured is amended to include as an additional insured any person or organization (referred to below as vendor)with whom you agreed under a "written contract"to provide insurance,but only with respect to "bodily injury"or "property damage"arising out of "your products"which are distributed or sold in the regular course of the vendor's business,subject to the following additional exclusions: 1.The insurance afforded the vendor does not apply to: a."Bodily injury"or "property damage"for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement.This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b.Any express warranty unauthorized by you; c.Any physical or chemical change in the product made intentionally by the vendor; d.Repackaging,except when unpacked solely for the purpose of inspection,demonstration,testing,or the substitution of parts under instructions from the manufacturer,and then repackaged in the original container; e.Any failure to make such inspections,adjustments,tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business,in connection with the distribution or sale of the products; f.Demonstration,installation,servicing or repair operations,except such operations performed at the vendor's premises in connection with the sale of the product; g.Products which,after distribution or sale by you,have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor;or SB146932G (10-19)Page 1 of 7 Copyright,CNA All Rights Reserved. SB146932G (Ed.10-19) h."Bodily injury"or "property damage"arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf.However,this exclusion does not apply to: (1)The exceptions contained in Subparagraphs d.or f.;or (2)Such inspections,adjustments,tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business,in connection with the distribution or sale of the products. 2.This insurance does not apply to any insured person or organization,from whom you have acquired such products,or any ingredient,part or container,entering into,accompanying or containing such products. 3.This provision 2.does not apply to any vendor included as an insured by an endorsement issued by us and made a part of this Policy. 4.This provision 2.does not apply if "bodily injury"or "property damage"included within the "products- completed operations hazard"is excluded either by the provisions of the Policy or by endorsement. B.MISCELLANEOUS ADDITIONAL INSUREDS 1.Who Is An Insured is amended to include as an insured any person or organization (called additional insured)described in paragraphs 3.a.through 3.j.below whom you are required to add as an additional insured on this policy under a "written contract." 2.However,subject always to the terms and conditions of this policy,including the limits of insurance,we will not provide the additional insured with: a.A higher limit of insurance than required by such "written contract;" b.Coverage broader than required by such "written contract"and in no event greater than that described by the applicable paragraph a.through k.below;or c.Coverage for "bodily injury"or "property damage"included within the "products-completed operations hazard."But this paragraph c.does not apply to the extent coverage for such liability is provided by paragraph 3.j.below. Any coverage granted by this endorsement shall apply only to the extent permitted by law. 3.Only the following persons or organizations can qualify as additional insureds under this endorsement: a.Controlling Interest Any persons or organizations with a controlling interest in you but only with respect to their liability arising out of: (1)such person or organization's financial control of you;or (2)Premises such person or organization owns,maintains or controls while you lease or occupy these premises; provided that the coverage granted to such additional insureds does not apply to structural alterations, new construction or demolition operations performed by or for such additional insured. b.Co-owner of Insured Premises A co-owner of a premises co-owned by you and covered under this insurance but only with respect to the co-owners liability for "bodily injury,""property damage"or "personal and advertising injury"as co- owner of such premises. c.Grantor of Franchise Any person or organization that has granted a franchise to you,but only with respect to such person or organization's liability for "bodily injury,""property damage,"or "personal and advertising injury"as grantor of a franchise to you. SB146932G (10-19)Page 2 of 7 Copyright,CNA All Rights Reserved. 10 0 2 0 0 0 4 5 7 0 1 3 1 3 4 4 4 5 9 3 9 6 SB146932G (Ed.10-19) d.Lessor of Equipment Any person or organization from whom you lease equipment,but only with respect to liability for "bodily injury,""property damage"or "personal and advertising injury"caused in whole or in part by your maintenance,operation or use of such equipment,provided that the "occurrence"giving rise to such "bodily injury"or "property damage"or the offense giving rise to such "personal and advertising injury"takes place prior to the termination of such lease. e.Lessor of Land Any person or organization from whom you lease land,but only with respect to liability for "bodily injury," "property damage"or "personal and advertising injury"arising out of the ownership,maintenance or use of that specific part of the land leased to you,provided that the "occurrence"giving rise to such "bodily injury"or "property damage"or the offense giving rise to such "personal and advertising injury,"takes place prior to the termination of such lease.The insurance hereby afforded to the additional insured does not apply to structural alterations,new construction or demolition operations performed by, on behalf of or for such additional insured. f.Lessor of Premises An owner or lessor of premises leased to you,or such owner or lessor's real estate manager,but only with respect to liability for "bodily injury,""property damage"or "personal and advertising injury" arising out of the ownership,maintenance or use of such part of the premises leased to you,and provided that the "occurrence"giving rise to such "bodily injury"or "property damage"or the offense giving rise to such "personal and advertising injury,"takes place prior to the termination of such lease. The insurance hereby afforded to the additional insured does not apply to structural alterations,new construction or demolition operations performed by,on behalf of or for such additional insured. g.Mortgagee,Assignee or Receiver A mortgagee,assignee or receiver of premises but only with respect to such mortgagee,assignee,or receiver's liability for "bodily injury,""property damage"or "personal and advertising injury"arising out of the ownership,maintenance,or use of a premises by you. This insurance does not apply to structural alterations,new construction or demolition operations performed by,on behalf of or for such additional insured. h.State or Political Subdivisions A state or government agency or subdivision or political subdivision that has issued a permit or authorization,but only with respect to such government agency or subdivision or political subdivision's liability for "bodily injury,""property damage"or "personal and advertising injury"arising out of: (1)The following hazards in connection with premises you own,rent,or control and to which this insurance applies: (a)The existence,maintenance,repair,construction,erection,or removal of advertising signs, awnings,canopies,cellar entrances,coal holes,driveways,manholes,marquees,hoistaway openings,sidewalk vaults,street banners,or decorations and similar exposures;or (b)The construction,erection,or removal of elevators;or (c)The ownership,maintenance or use of any elevators covered by this insurance;or (2)The permitted or authorized operations performed by you or on your behalf.But the coverage granted by this paragraph does not apply to: (a)"Bodily injury","property damage"or "personal and advertising injury"arising out of operations performed for the state or government agency or subdivision or political subdivision; or (b)"Bodily injury"or "property damage"included within the "products-completed operations hazard." With respect to this provision's requirement that additional insured status must be requested under a "written contract,"we will treat as a "written contract"any governmental permit that requires you to add the governmental entity as an additional insured. SB146932G (10-19)Page 3 of 7 Copyright,CNA All Rights Reserved. SB146932G (Ed.10-19) i.Trade Show Event Lessor With respect to your participation in a trade show event as an exhibitor,presenter or displayer,any person or organization whom you are required to include as an additional insured,but only with respect to such person or organization's liability for "bodily injury,""property damage,"or "personal and advertising injury"caused by: a.Your acts or omissions;or b.Acts or omissions of those acting on your behalf; in the performance of your ongoing operations at the trade show premises during the trade show event. j.Other Person or Organization Any person or organization who is not an additional insured under paragraphs a.through i.above.Such additional insured is an insured solely for "bodily injury,""property damage"or "personal and advertising injury"for which such additional insured is liable because of your acts or omissions. The coverage granted by this paragraph does not apply to any person or organization: (1)For "bodily injury,""property damage,"or "personal and advertising injury"arising out of the rendering or failure to render any professional services; (2)For "bodily injury"or "property damage"included in the "products-completed operations hazard."But this provision (2)does not apply to such "bodily injury"or "property damage"if: (a)It is entirely due to your negligence and specifically results from your work for the additional insured which is the subject to the "written contract";and (b)The "written contract"requires you to make the person or organization an additional insured for such "bodily injury"or "property damage";or (3)Who is afforded additional insured coverage under another endorsement attached to this policy. C.ADDITIONAL PROVISIONS PERTINENT TO ADDITIONAL INSURED COVERAGE 1.With respect only to additional insured coverage provided under paragraphs A.and B.above: a.The BUSINESSOWNERS COMMON POLICY CONDITIONS are amended to add the following to the Condition entitled Other Insurance: This insurance is excess of all other insurance available to an additional insured whether primary, excess,contingent or on any other basis.However,if a "written contract"requires that this insurance be either primary or primary and noncontributing,then this insurance will be primary and non-contributory relative solely to insurance on which the additional insured is a named insured. b.Under Liability and Medical Expense Definitions,the following definition is added: "Written contract"means a written contract or agreement that requires you to make a person or organization an additional insured on this policy,provided the contract or agreement: (1)Is currently in effect or becomes effective during the term of this policy;and (2)Was executed prior to: (a)The "bodily injury"or "property damage;"or (b)The offense that caused the "personal and advertising injury"; for which the additional insured seeks coverage. 2.With respect to any additional insured added by this endorsement or by any other endorsement attached to this Coverage Part,the section entitled Who Is An Insured is amended to make the following natural persons insureds. If the additional insured is: a.An individual,then his or her spouse is an insured; SB146932G (10-19)Page 4 of 7 Copyright,CNA All Rights Reserved. 10 0 2 0 0 0 4 5 7 0 1 3 1 3 4 4 4 5 9 3 9 7 SB146932G (Ed.10-19) b.A partnership or joint venture,then its partners,members and their spouses are insureds; c.A limited liability company,then its members and managers are insureds; d.An organization other than a partnership,joint venture or limited liability company,then its executive officers,directors and shareholders are insureds;or e.Any type of entity,then its employees are insureds; but only with respect to locations and operations covered by the additional insured endorsement's provisions, and only with respect to their respective roles within their organizations.Furthermore,employees of additional insureds are not insureds with respect to liability arising out of: (1)"Bodily injury"or "personal and advertising injury"to any fellow employee or to any natural person listed in paragraphs a.through d.above; (2)"Property damage"to property owned,occupied or used by their employer or by any fellow employee;or (3)Providing or failing to provide professional health care services. II.LIABILITY EXTENSION COVERAGES It is understood and agreed that this endorsement amends the Businessowners Liability Coverage Form.If any other endorsement attached to this policy amends any provision also amended by this endorsement,then that other endorsement controls with respect to such provision,and the changes made by this endorsement to such provision do not apply. A.Bodily injury –Expanded Definition Under Liability and Medical Expenses Definitions ,the definition of "Bodily injury"is deleted and replaced by the following: "Bodily injury"means physical injury,sickness or disease sustained by a person,including death,humiliation, shock,mental anguish or mental injury by that person at any time which results as a consequence of the physical injury,sickness or disease. B.Broad Knowledge of Occurrence Under Businessowners Liability Conditions,the Condition entitled Duties In The Event of Occurrence,Offense, Claim or Suit is amended to add the following: Paragraphs a.and b.above apply to you or to any additional insured only when such "occurrence,"offense, claim or "suit"is known to: (1)You or any additional insured that is an individual; (2)Any partner,if you or an additional insured is a partnership; (3)Any manager,if you or an additional insured is a limited liability company; (4)Any "executive officer"or insurance manager,if you or an additional insured is a corporation; (5)Any trustee,if you or an additional insured is a trust;or (6)Any elected or appointed official,if you or an additional insured is a political subdivision or public entity. This paragraph applies separately to you and any additional insured. C.Estates,Legal Representatives and Spouses The estates,heirs,legal representatives and spouses of any natural person insured shall also be insured under this policy;provided,however,coverage is afforded to such estates,heirs,legal representatives and spouses only for claims arising solely out of their capacity as such and,in the case of a spouse,where such claim seeks damages from marital common property,jointly held property,or property transferred from such natural person insured to such spouse.No coverage is provided for any act,error or omission of an estate,heir,legal representative or spouse outside the scope of such person's capacity as such,provided however that the spouse of a natural person Named Insured and the spouses of members or partners of joint venture or partnership Named Insureds are insureds with respect to such spouses'acts,errors or omissions in the conduct of the Named Insured's business. SB146932G (10-19)Page 5 of 7 Copyright,CNA All Rights Reserved. SB146932G (Ed.10-19) D.Fellow Employee First Aid Coverage In the section entitled Who Is An Insured,paragraph 2.a.1.is amended to add the following: The limitations described in subparagraphs 2.a.1.(a),(b)and (c)do not apply to your "employees"for "bodily injury"that results from providing cardiopulmonary resuscitation or other first aid services to a co-"employee"or "volunteer worker"that becomes necessary while your "employee"is performing duties in the conduct of your business.Your "employees"are hereby insureds for such services.But the insured status conferred by this provision does not apply to "employees"whose duties in your business are to provide professional health care services or health examinations. E.Legal Liability –Damage To Premises 1.Under B.Exclusions,1.Applicable to Business Liability Coverage,Exclusion k.Damage To Property,is replaced by the following: k.Damage To Property "Property damage"to: 1.Property you own,rent or occupy,including any costs or expenses incurred by you,or any other person,organization or entity,for repair,replacement,enhancement,restoration or maintenance of such property for any reason,including prevention of injury to a person or damage to another's property; 2.Premises you sell,give away or abandon,if the "property damage"arises out of any part of those premises; 3.Property loaned to you; 4.Personal property in the care,custody or control of the insured; 5.That particular part of any real property on which you or any contractors or subcontractors working directly or indirectly in your behalf are performing operations,if the "property damage"arises out of those operations;or 6.That particular part of any property that must be restored,repaired or replaced because "your work" was incorrectly performed on it. Paragraph 2 of this exclusion does not apply if the premises are "your work"and were never occupied, rented or held for rental by you. Paragraphs 1,3,and 4,of this exclusion do not apply to "property damage"(other than damage by fire or explosion)to premises: (1)rented to you: (2)temporarily occupied by you with the permission of the owner,or (3)to the contents of premises rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section D – Liability and Medical Expenses Limits of Insurance. Paragraphs 3,4,5,and 6 of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraph 6 of this exclusion does not apply to "property damage"included in the "products- completed operations hazard." 2.Under B.Exclusions,1.Applicable to Business Liability Coverage,the following paragraph is added,and replaces the similar paragraph,if any,beneath paragraph (14)of the exclusion entitled Personal and Advertising Injury: Exclusions c,d,e,f,g,h,i,k,l,m,n,and o,do not apply to damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner or to the contents of premises rented to you for a period of 7 or fewer consecutive days.A separate limit of insurance applies to this coverage as described in Section D.Liability And Medical Expenses Limits Of Insurance. SB146932G (10-19)Page 6 of 7 Copyright,CNA All Rights Reserved. 10 0 2 0 0 0 4 5 7 0 1 3 1 3 4 4 4 5 9 3 9 8 SB146932G (Ed.10-19) 3.The first Paragraph under item 5.Damage To Premises Rented To You Limit of the section entitled Liability And Medical Expenses Limits Of Insurance is replaced by the following: The most we will pay under Business Liability for damages because of "property damage"to any one premises,while rented to you or temporarily occupied by you with the permission of the owner,including contents of such premises rented to you for a period of 7 or fewer consecutive days,is the Damage to Premises Rented to You Limit.The Damage to Premises Rented to You Limit is the greater of: a.$1,000,000;or b.The Damage to Premises Rented to You Limit shown in the Declarations. F.Personal and Advertising Injury –Discrimination or Humiliation 1.Under Liability and Medical Expenses Definitions,the definition of "personal and advertising injury"is amended to add the following: h.Discrimination or humiliation that results in injury to the feelings or reputation of a natural person,but only if such discrimination or humiliation is: (1)Not done intentionally by or at the direction of: (a)The insured;or (b)Any "executive officer,"director,stockholder,partner,member or manager (if you are a limited liability company)of the insured;and (2)Not directly or indirectly related to the employment,prospective employment,past employment or termination of employment of any person or person by any insured. 2.Under B.Exclusions,1.Applicable to Business Liability Coverage,the exclusion entitled Personal and Advertising Injury is amended to add the following additional exclusions: (15)Discrimination Relating to Room,Dwelling or Premises Caused by discrimination directly or indirectly related to the sale,rental,lease or sub-lease or prospective sale,rental,lease or sub-lease of any room,dwelling or premises by or at the direction of any insured. (16)Employment Related Discrimination Discrimination or humiliation directly or indirectly related to the employment,prospective employment, past employment or termination of employment of any person by any insured. (17)Fines or Penalties Fines or penalties levied or imposed by a governmental entity because of discrimination. 3.This provision (Personal and Advertising Injury –Discrimination or Humiliation)does not apply if Personal and Advertising Injury Liability is excluded either by the provisions of the Policy or by endorsement. G.Personal and Advertising Injury -Broadened Eviction Under Liability and Medical Expenses Definitions ,the definition of "Personal and advertising injury"is amended to delete Paragraph c.and replace it with the following: c.The wrongful eviction from,wrongful entry into,or invasion of the right of private occupancy of a room dwelling or premises that a person or organization occupies committed by or on behalf of its owner,landlord or lessor. H.Waiver of Subrogation –Blanket We waive any right of recovery we may have against: a.Any person or organization with whom you have a written contract that requires such a waiver. All other terms and conditions of the Policy remain unchanged. SB146932G (10-19)Page 7 of 7 Copyright,CNA All Rights Reserved. CNA80103XX (09-14) THIS ENDORSEMENT CHANGES THE POLICY.PLEASE READ IT CAREFULLY. PRIMARY AND NONCONTRIBUTORY- OTHER INSURANCE CONDITION This endorsement modifies insurance provided under the following: BUSINESSOWNERS COMMON POLICY CONDITIONS The following is added to Paragraph H.Other Insurance and supersedes any provision to the contrary: Primary And Noncontributory Insurance This insurance is primary to and will not seek contribution from any other insurance available to an additional insured under your policy provided that: 1.The additional insured is a Named Insured under such other insurance;and 2.You have agreed in writing in a contract or agreement that this insurance would be primary and would not seek contribution from any other insurance available to the additional insured. All other terms and conditions of the Policy remain unchanged. CNA80103XX (09-14) Page 1 of 1 Copyright,CNA All Rights Reserved.Includes copyrighted material of Insurance Services Office,Inc.,with its permission Workers Compensation And Employers Liability Insurance Policy Endorsement WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us. This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule Any Person or Organization on whose behalf you are required to obtain this waiver of our right to recover from under a written contract or agreement. The premium charge for the endorsement is reflected in the Schedule of Operations. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. WC 7 13134493 Endorsement No: 3; Page: 1 of 1 Policy Page: 24 of 37 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: WC 00 03 13 (04-1984) Endorsement Effective Date: Policy No: Policy Effective Date: 03/01/2023Endorsement Expiration Date: Copyright 1983 National Council on Compensation Insurance. Workers Compensation And Employers Liability Insurance Policy Endorsement BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS This endorsement changes the policy to which it is attached. It is agreed that Part One - Workers’ Compensation Insurance G. Recovery From Others and Part Two - Employers’ Liability Insurance H. Recovery From Others are amended by adding the following: We will not enforce our right to recover against persons or organizations. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) PREMIUM CHARGE - Refer to the Schedule of Operations The charge will be an amount to which you and we agree that is a percentage of the total standard premium for California exposure. The amount is 0%. All other terms and conditions of the policy remain unchanged. This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective Date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy unless another expiration date is shown below. WC 7 13136289 Endorsement No: 2; Page: 1 of 1 Policy Page: 12 of 13 Underwriting Company: Valley Forge Insurance Company, 151 N Franklin St, Chicago, IL 60606 Form No: G-19160-B (11-1997) Endorsement Effective Date: Policy No: Policy Effective Date: 03/01/2023Endorsement Expiration Date: © Copyright CNA All Rights Reserved. The Pun Group - Professional External Auditing Services Final Audit Report 2023-06-23 Created:2023-06-22 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAguv8Qa33LfVzjotRF_H2TLnACRstpLzE "The Pun Group - Professional External Auditing Services" Histo ry Document created by City of Cupertino (webmaster@cupertino.org) 2023-06-22 - 9:33:57 PM GMT- IP address: 35.229.54.2 Document emailed to Janet Liang (janetl@cupertino.org) for approval 2023-06-22 - 9:40:49 PM GMT Email viewed by Janet Liang (janetl@cupertino.org) 2023-06-22 - 9:41:15 PM GMT- IP address: 104.47.73.126 Document approved by Janet Liang (janetl@cupertino.org) Approval Date: 2023-06-22 - 9:41:47 PM GMT - Time Source: server- IP address: 73.158.94.229 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2023-06-22 - 9:41:53 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2023-06-22 - 11:55:39 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kenneth Pun (ken.pun@pungroup.com) for signature 2023-06-22 - 11:55:40 PM GMT Email viewed by Kenneth Pun (ken.pun@pungroup.com) 2023-06-23 - 0:10:54 AM GMT- IP address: 104.47.58.254 Document e-signed by Kenneth Pun (ken.pun@pungroup.com) Signature Date: 2023-06-23 - 0:11:24 AM GMT - Time Source: server- IP address: 71.93.107.168 Document emailed to Pamela Wu (pamelaw@cupertino.org) for signature 2023-06-23 - 0:11:26 AM GMT Email viewed by Pamela Wu (pamelaw@cupertino.org) 2023-06-23 - 3:21:16 PM GMT- IP address: 104.47.73.126 Document e-signed by Pamela Wu (pamelaw@cupertino.org) Signature Date: 2023-06-23 - 3:21:27 PM GMT - Time Source: server- IP address: 76.102.151.13 Document emailed to christopherj@cupertino.org for signature 2023-06-23 - 3:21:28 PM GMT Email viewed by christopherj@cupertino.org 2023-06-23 - 3:55:16 PM GMT- IP address: 172.225.88.184 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen 2023-06-23 - 4:42:44 PM GMT- IP address: 136.24.22.111 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2023-06-23 - 4:42:46 PM GMT - Time Source: server- IP address: 136.24.22.111 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2023-06-23 - 4:42:47 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2023-06-23 - 5:11:53 PM GMT- IP address: 104.47.73.254 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2023-06-23 - 5:12:02 PM GMT - Time Source: server- IP address: 162.245.20.145 Agreement completed. 2023-06-23 - 5:12:02 PM GMT