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24-005 Baker Tilly Financial Analysis and Budget Strategy Support
Financial Analysis and Budget Strategy Support Page 1 of 9 Professional/Consulting Contracts /Version: January 2024 PROFESSIONAL/CONSULTING SERVICES AGREEMENT 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”), and Baker Tilly (“Contractor”), a Limited Liability Partnership for Financial Analysis and Budget Strategy Support, and is effective on the last date signed below (“Effective Date”). 2. SERVICES 2.1 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. 2.2 Contractor’s duties and services under this agreement shall not include preparing or assisting the City with any portion of the City’s preparation of a request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with the City. The City shall at all times retain responsibility for public contracting, including with respect to any subsequent phase of this project. Contractor’s participation in the planning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications. Contractor shall cooperate with the City to ensure that all bidders for a subsequent contract on any subsequent phase of this project have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by contractor pursuant to this agreement. 3. TIME OF PERFORMANCE 3.1 This Agreement begins on the Effective Date and ends on August 31, 2024 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on the effective date and shall be completed by August 31, 2024. 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. Financial Analysis and Budget Strategy Support Page 2 of 9 Professional/Consulting Contracts /Version: January 2024 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 $27,500.00 (“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 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 Financial Analysis and Budget Strategy Support Page 3 of 9 Professional/Consulting Contracts /Version: January 2024 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 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. Financial Analysis and Budget Strategy Support Page 4 of 9 Professional/Consulting Contracts /Version: January 2024 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 between Contractor and any third party, are public records under the California Public Records Act, California Government Code section 6250 et seq. Contractor shall compl y 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 co ntrol 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: Financial Analysis and Budget Strategy Support Page 5 of 9 Professional/Consulting Contracts /Version: January 2024 (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 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, or 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. Financial Analysis and Budget Strategy Support Page 6 of 9 Professional/Consulting Contracts /Version: January 2024 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. 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 inv olved 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 Matt Morley 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 Steve Toler 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. Financial Analysis and Budget Strategy Support Page 7 of 9 Professional/Consulting Contracts /Version: January 2024 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 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. Financial Analysis and Budget Strategy Support Page 8 of 9 Professional/Consulting Contracts /Version: January 2024 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 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: Matt Morley Email: MattM@cupertino.org To Contractor: Baker Tilly 1730 Madison Road Cincinnati, Ohio 45206 Attention: Steve Toler Email: steve.toler@bakertilly.com Financial Analysis and Budget Strategy Support Page 9 of 9 Professional/Consulting Contracts /Version: January 2024 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. 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 Carol Jacobs Carol Jacobs Managing Director Jan 13, 2024 Christopher D. Jensen Matt Morley Assistant City Manager Jan 16, 2024 Jan 16, 2024 EXHIBIT A SCOPE OF WORK Contractor shall provide the Services and Deliverable(s) as follows: Objective: Conduct an independent analysis of the City’s long-range General Fund financial forecast and initial budget strategies proposed by staff to address the gap in its FY 2025 budget for a presentation to the City Council during its budget deliberations This work will encompass Activities 1 through 5 as described below: Activity 1 – Start Project Baker Tilly will begin the project with a project launch meeting that includes the Director of Administrative Services and other City staff who will serve as the City’s project team. The initial meeting will confirm project deliverables and due dates to ensure the project is completed on time and on budget. Activity 2 – Gather Information Baker Tilly will review multi-year budget information, including such items as revenue sources and amounts, expenditure allocations, reserves and other funds, budgetary reductions and cost shifts that have been made to date, the local community, the City’s labor environment, and other relevant factors. They will then review the current 10-year financial forecast prepared using the City’s forecasting tool(s). Baker Tilly will rely on data used in preparing the financial forecast, which include the following: • Revenue assumptions for the City’s significant revenue sources, including property tax, sales tax, transient occupancy tax, utility tax, fees and charges, and any other significant revenue sources. • Expenditure assumptions for the City’s significant expenditure categories, including salaries and benefits, services and supplies, capital outlay, debt service, inter-fund transfers, and the funding status of pension and other post-employment benefit obligations. • Fund balance/reserves analyses and amounts restricted or assigned for specific purposes in accordance with City Council policy and/or generally accepted governmental accounting standards. • Economic assumptions used in preparing the ten-year financial forecast, including revenue growth trends, compensation and benefits increases (especially medical and pension projections), historical and future EXHIBIT A projected recessionary impacts, development activity, and regional economic environmental assumptions. Baker Tilly will also perform a cursory review of the City’s five-year CIP plan and discuss any current and future underfunded or unfunded capital improvement needs that may require additional fiscal resources from the General Fund. Activity 3 – Analyze Financial Forecast Baker Tilly will analyze the data gathered through documents and interviews. They will identify any significant historical trends that may inform the forecast of revenues and expenditures and determine if the forecast incorporates a comprehensive set of assumptions affecting the financial capacity of the General Fund. This analysis will provide a sound basis for understanding the City’s financial ability to fund services during the next ten years. As part of this phase, Baker Tilly will leverage the City’s existing fiscal model to create a dynamic dashboard spreadsheet that will allow staff and Council members the opportunity to see the impacts of changes to forecast assumptions and the necessary revenue and expenditure adjustments that would be required to allow for fiscal sustainability for the General Fund. Baker Tilly will summarize the analysis and incorporate the recommendations into the analysis performed in the next activity. Activity 4 – Analyze City-developed Budget Strategies Baker Tilly will conduct a cursory review of the strategies identified by staff to address the fiscal gap for FY 2025. This review will be based upon the interviews and data requested in Activity 2 and Baker Tilly’s experience in working with other municipalities in Santa Clara County and throughout California and the rest of the nation. Baker Tilly will determine how the strategies were identified, how the fiscal impact was estimated, and issues regarding viability and timing of implementation. They will summarize the results of the analysis, incorporating the review of the financial forecast, and review those results with the project team to solicit feedback and determine if additional analysis or information is required to substantiate the City’s financial forecast and proposed budget strategies for Council consideration. Activity 5 – Report Results EXHIBIT A Once Baker Tilly has received feedback about the recommendations and improvement opportunities to the fiscal model, and the analysis of the City’s proposed budget strategies, they will prepare a draft slide deck of the analysis and recommendations for a presentation to the City Council. The slide deck will include a presentation of the revised financial forecast that incorporates the recommendations and provides an informative section on fiscal sustainability planning as a means of commencing Phase Two of this project, which will be determined next Fiscal Year. If the City Manager wishes to extend into Phase Two, this agreement will be amended to extend terms, scope, and compensation. After review by the project team, Baker Tilly will finalize the slide deck and will present observations, recommendations and the revised model in person to the City Council during their FY 2025 budget deliberations which has been scheduled for a Council meeting in Spring 2024. EXHIBIT B and C EXHIBIT B – SCHEDULE OF PERFORMANCE The services outlined in Exhibit A shall commence upon execution of the agreement and shall continue through August 31, 2024. The hours, fees, and timeline anticipated for this project are summarized in the table below: # Description Hours Cost 2024 Projected Timeline Phase One: Conduct an Independent Analysis of the City’s Long-Range General Fund Forecast and Budget Strategies for FY 2025 Budget 1 Project launch meeting with City Manager and Finance Director 14 $3,100 Mid-January 2 Gather budgetary information 32 $6,900 Mid-January – February 3 Analyze financial forecast 21 $4,500 Late January – Early March 4 Analyze City-developed budget strategies 19 $4,100 February – Early March 5 Report Results 37 $8,900 March – May Total – Phase One 123 $27,500 EXHIBIT C – COST SUMMARY Contractor anticipates devoting 123 hours of staff time to complete Phase One of work outlined in table above. - The total cost of Services of Phase One pursuant to this agreement shall not exceed $27,500, which includes all fees and expenses. 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 proce eds 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 cov erage 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 t o 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. Ho l d e r I d e n t i f i e r : 77 7 7 7 7 7 7 0 7 0 7 0 7 0 0 0 7 7 7 6 3 6 1 6 0 6 5 5 5 3 3 3 0 7 6 2 7 1 6 4 4 6 2 0 5 4 5 7 7 0 74 5 3 1 3 6 7 6 2 4 0 6 2 1 0 0 7 3 7 5 0 5 7 6 0 5 7 3 3 1 0 3 0 7 6 2 5 1 4 4 4 6 0 7 6 4 5 5 3 0 71 6 2 4 1 1 3 3 2 6 3 0 1 1 2 0 7 5 6 6 2 3 7 1 3 2 4 3 6 7 7 4 0 7 7 2 6 0 5 5 5 7 2 0 5 6 7 5 6 0 73 4 0 0 1 1 7 5 0 2 3 6 5 1 2 0 7 7 7 2 7 2 5 2 0 2 5 7 7 3 1 1 0 7 7 7 7 7 7 7 0 7 0 0 0 7 0 7 0 0 7 66 6 6 6 6 6 6 0 6 0 6 0 6 0 0 0 6 2 6 0 6 4 6 6 2 0 4 4 4 6 2 0 0 6 0 2 2 2 0 4 2 6 2 2 6 2 0 2 0 0 62 0 2 2 0 6 2 6 2 0 6 0 0 0 0 0 6 2 2 2 2 0 4 0 4 2 0 6 0 0 2 2 0 6 0 2 2 2 2 6 0 4 2 0 4 0 2 2 2 0 62 2 0 0 0 6 0 6 2 0 4 2 0 0 0 0 6 0 2 0 0 0 4 2 6 2 2 4 0 0 0 2 0 6 2 2 2 2 2 4 2 6 2 0 6 0 2 0 0 0 62 2 0 2 2 4 2 6 2 0 0 2 4 0 0 0 6 6 6 4 6 0 6 2 2 4 0 6 6 4 4 4 0 6 6 6 6 6 6 6 0 6 0 0 0 6 0 6 0 0 6 Ce r t i f i c a t e N o : 57 0 1 0 3 4 5 5 2 4 5 CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 01/03/2024 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. PRODUCER Aon Risk Services Northeast, Inc. New York NY Office One Liberty Plaza 165 Broadway, Suite 3201 New York NY 10006 USA PHONE (A/C. No. Ext): E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # (312) 381-1000 INSURED 20478National Fire Ins. Co. of HartfordINSURER A: 35289The Continental Insurance CompanyINSURER B: 20427American Casualty Co. of Reading PAINSURER C: 20443Continental Casualty CompanyINSURER D: INSURER E: INSURER F: FAX (A/C. No.):(312) 381-7007 CONTACT NAME: Baker Tilly US, LLP P.O. Box 7398 4807 Innovate Lane Madison WI 53707-7398 USA COVERAGES CERTIFICATE NUMBER:570103455245 REVISION NUMBER: 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.Limits shown are as requested POLICY EXP (MM/DD/YYYY) POLICY EFF (MM/DD/YYYY) SUBR WVD INSR LTR ADDL INSD POLICY NUMBER TYPE OF INSURANCE LIMITS COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR POLICY LOC EACH OCCURRENCE DAMAGE TO RENTED PREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL & ADV INJURY GENERAL AGGREGATE PRODUCTS - COMP/OP AGG X X X GEN'L AGGREGATE LIMIT APPLIES PER: $1,000,000 $1,000,000 $5,000 $1,000,000 $2,000,000 $2,000,000 A 01/01/2024 01/01/2025 General Liability 6016751638 PRO- JECT OTHER: AUTOMOBILE LIABILITY ANY AUTO OWNED AUTOS ONLY SCHEDULED AUTOS HIRED AUTOS ONLY NON-OWNED AUTOS ONLY BODILY INJURY ( Per person) PROPERTY DAMAGE (Per accident)X X BODILY INJURY (Per accident) $1,000,000A01/01/2024 01/01/2025 Auto COMBINED SINGLE LIMIT (Ea accident) BUA 6016751641 EXCESS LIAB X OCCUR CLAIMS-MADE AGGREGATE EACH OCCURRENCE DED $1,000,000 $1,000,000 01/01/2024 Umbrella UMBRELLA LIABB 01/01/20256016723001 RETENTION X E.L. DISEASE-EA EMPLOYEE E.L. DISEASE-POLICY LIMIT E.L. EACH ACCIDENT $1,000,000 X OTH- ER PER STATUTEB01/01/2024 01/01/2025 6023746823C 01/01/2024 01/01/2025 6043413436D 01/01/2024 01/01/2025 $1,000,000 Y / N (Mandatory in NH) ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER EXCLUDED?N / AN Workers Compensation WORKERS COMPENSATION AND EMPLOYERS' LIABILITY If yes, describe under DESCRIPTION OF OPERATIONS below $1,000,000 6016751624 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are added as Additional Insured as respects the General Liability and Automobile Liability as required per written contract. Umbrella is a follow form. 30-day notice of cancellation to policy named insured, except 10 days for non-payment. General Liability is primary and non-contributory to other insurance available to the certificate holder, but only to the extent required by written contract with the insured. A waiver of subrogation in favor of Additional Insured as respect the General Liability, Auto Liability and Workers Compensation pursuant to a written contract. CANCELLATIONCERTIFICATE HOLDER AUTHORIZED REPRESENTATIVECity of Cupertino 10300 Torre Avenue Cupertino CA 95014 USA ACORD 25 (2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 10/01/2023 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). PRODUCER Aon Risk Services Northeast, Inc. One Liberty Plaza, 165 Broadway, Suite 3201 New York, N.Y. 10006 CONTACT NAME: PHONE (A/C. No. Ext): 312-381-1000 FAX (A/C. No) 312-381-7007 E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURED Baker Tilly US, LLP P.O. Box 7398 4807 Innovate Lane Madison WI 53707-7398 USA INSURER A: Columbia Casualty Company INSURER B: INSURER C: INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Aon Risk Services Northeast, Inc. ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD 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. Limits shown are as requested INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE CLAIMS-MADE OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence) MED EXP (Any one person) PERSONAL & ADV INJURY GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE POLICY PROJECT LOC PRODUCTS - COMP/OP AGG OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY (Per person) ANY AUTO BODILY INJURY (Per accident) OWNED AUTOS ONLY SCHEDULED AUTOS PROPERTY DAMAGE (Per accident) HIRED AUTOS ONLY NON-OWNED AUTOS ONLY UMBRELLA LIAB OCCUR EACH OCCURRENCE AGGREGATE EXCESS LIAB CLAIMS-MADE DED RETENTION WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR / PARTNER / EXECUTIVE OFFICER/MEMBER EXCLUDED? Y / N N / A PER STATUTE OTHER E.L. EACH ACCIDENT (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE-EA EMPLOYEE E.L. DISEASE-POLICY LIMIT A Professional Liability Insurance ABF-188122608 01-Oct-23 01-Oct-24 Not less than US $2,000,000 per claim and in the annual aggregate. DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Financial Analysis and Budget Strategy Support Final Audit Report 2024-01-17 Created:2024-01-12 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAugHZBbJwZxG3PfGBbupegpWGhZjfPYrN "Financial Analysis and Budget Strategy Support" History Document created by City of Cupertino (webmaster@cupertino.org) 2024-01-12 - 11:26:16 PM GMT- IP address: 35.229.54.2 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2024-01-12 - 11:29:27 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2024-01-12 - 11:35:08 PM GMT - Time Source: server- IP address: 71.204.144.228 Document emailed to Carol Jacobs (carol.jacobs@bakertilly.com) for signature 2024-01-12 - 11:35:09 PM GMT Email viewed by Carol Jacobs (carol.jacobs@bakertilly.com) 2024-01-12 - 11:53:52 PM GMT- IP address: 68.5.98.15 Document e-signed by Carol Jacobs (carol.jacobs@bakertilly.com) Signature Date: 2024-01-13 - 5:24:16 PM GMT - Time Source: server- IP address: 172.59.32.94 Document emailed to christopherj@cupertino.org for signature 2024-01-13 - 5:24:17 PM GMT Email viewed by christopherj@cupertino.org 2024-01-13 - 5:30:57 PM GMT- IP address: 174.194.192.31 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen 2024-01-13 - 5:31:31 PM GMT- IP address: 174.194.192.31 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2024-01-13 - 5:31:33 PM GMT - Time Source: server- IP address: 174.194.192.31 Document emailed to Matt Morley (mattm@cupertino.org) for signature 2024-01-13 - 5:31:35 PM GMT Email viewed by Matt Morley (mattm@cupertino.org) 2024-01-16 - 10:38:18 PM GMT- IP address: 64.165.34.3 Document e-signed by Matt Morley (mattm@cupertino.org) Signature Date: 2024-01-16 - 10:38:40 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2024-01-16 - 10:38:42 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2024-01-17 - 0:06:33 AM GMT- IP address: 104.47.74.126 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2024-01-17 - 0:06:42 AM GMT - Time Source: server- IP address: 64.165.34.3 Agreement completed. 2024-01-17 - 0:06:42 AM GMT