The URL can be used to link to this page

23-091 Amendment #1 dated 7-15-24 Cotton Shires for Geotechnical & Engineering Testing Services for Regnart Road Phase 1 Project1 FIRST AMENDMENT TO AGREEMENT 770 BETWEEN THE CITY OF CUPERTINO AND COTTON SHIRES & ASSOC, INC FOR GEOTECHNICAL AND ENGINEERING TESTING AND CONSULTING SERVICES FOR REGNART ROAD PHASE 1 PROJECT This First Amendment to Agreement 770 is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and Cotton Shires & Assoc, Inc, a Corporation (“Contractor”) whose address is 330 Village Lane, Los Gatos, CA 95030-7218, and is made with reference to the following: RECITALS: A. On August 10, 2023 Agreement 770 (“Agreement”) was entered into by and between City and Contractor for Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project. B. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Paragraph 3.1 of the Agreement is modified to read as follows: This Agreement begins on the Effective Date and ends on June 30, 2025 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on the effective date and shall be completed by June 30, 2025. 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. 2. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. SIGNATURES CONTINUE ON THE FOLLOWING PAGE 2 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CITY OF CUPERTINO By Title Date APPROVED AS TO FORM City Attorney ATTEST: City Clerk Date COTTON SHIRES & ASSOC, INC By Title Date David T Schrier Vice President Jul 15, 2024 Christopher D. Jensen Director of Public Works Jul 15, 2024 Jul 15, 2024 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 1/19/2024 License # 0E67768 (925) 660-3530 13056 Cotton, Shires and Associates, Inc. 646 University Avenue Los Gatos, CA 95030 A 2,000,000 PSB0006677 2/1/2024 2/1/2025 1,000,000 10,000 2,000,000 4,000,000 4,000,000 1,000,000A PSA0002275 2/1/2024 2/1/2025 4,000,000A PSE0002888 2/1/2024 2/1/2025 4,000,000 A PSW0003773 2/1/2024 2/1/2025 1,000,000 1,000,000 1,000,000 A Professional Liab.RDP0053354 2/1/2024 Per Claim 2,000,000 A Professional Liab.RDP0053354 2/1/2024 2/1/2025 Aggregate 4,000,000 All operations of the Named Insured. General Liability: Please see Additional Insured Endorsement attached; such coverage is Primary & Non-Contributory, with Waiver of Subrogation and Per Project Aggregate included, as required by written contract. Auto Liability: Please see Additional Insured Endorsement attached, as required by written contract. Workers' Compensation: Waiver of Subrogation is included as per attached Waiver of Subrogation Endorsement, as required by written contract. GENERAL LIABILITY & AUTO LIABILITY ADDITIONAL INSURED INCLUDES THE FOLLOWING PERSON(S) OR ORGANIZATION(S): The City of Cupertino, its City Council, officers, officials, employees, and authorized agents, servants and volunteers and/or as required by written contract City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 COTTSHI-01 SUMMANR IOA Insurance Services 3875 Hopyard Road Suite 200 Pleasanton, CA 94588 Tamatha Rogers-Barnett Tammy.Rogers@ioausa.com RLI Insurance Company X 2/1/2025 X X X X X X Policy Number:RLI Insurance Company Named Insured: PPA 300 03 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. RLIPack® BUSINESS AUTO ENHANCEMENT SCHEDULE OF COVERAGES ADDRESSED BY THIS ENDORSEMENT A. Broad Form Named Insured B. Employees As Insureds C. Blanket Additional Insured D. Blanket Waiver Of Subrogation E. Employee Hired Autos F. Fellow Employee Coverage G. Auto Loan Lease Gap Coverage H. Glass Repair – Waiver Of Deductible I. Personal Effects Coverage J. Hired Auto Physical Damage Coverage K. Hired Auto Physical Damage – Loss Of Use L. Hired Car – Worldwide Coverage M. Temporary Transportation Expenses N. Amended Bodily Injury Definition – Mental Anguish O. Airbag Coverage P. Amended Insured Contract Definition – Railroad Easement Q. Coverage Extensions – Audio, Visual And Data Electronic Equipment Not Designed Solely For The Production Of Sound R. Notice Of And Knowledge Of Occurrence S. Unintentional Errors Or Omissions T. Towing Coverage Cotton, Shires and Associates, Inc. PSA0002275 PPA 300 03 13 This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM A. Broad Form Named Insured The following is added to the SECTION II – COVERED AUTOS LIABILITY COVERAGE, Para- graph A.1. Who Is An Insured Provision: Any business entity newly acquired or formed by you during the policy period, provided you own fifty percent (50%) or more of the business entity and the business entity is not separately insured for Bus- iness Auto Coverage. Coverage is extended up to a maximum of one hundred eighty (180) days following the acquisition or formation of the business entity. This provision does not apply to any person or organization for which coverage is excluded by endorsement. B. Employees As Insureds The following is added to the SECTION II – COVERED AUTOS LIABILITY COVERAGE, Para- graph A.1. Who Is An Insured Provision: Any “employee” of yours is an “insured” while using a covered “auto” you don't own, hire or borrow in your business or your personal affairs. C. Blanket Additional Insured The following is added to the SECTION II – COVERED AUTOS LIABILITY COVERAGE, Para- graph A.1. Who Is An Insured Provision: Any person or organization that you are required to include as an additional insured on this coverage form in a contract or agreement that is executed by you before the “bodily injury” or “property damage” occurs is an “insured” for liability coverage, but only for damages to which this insurance applies and only to the extent that person or organization qualifies as an “insured” under the Who Is An Insured provision contained in SECTION II – COVERED AUTOS LIABILITY COVERAGE. The insurance provided to the additional insured will be on a primary and non-contributory basis to the additional insured’s own business auto coverage if you are required to do so in a contract or agreement that is executed by you before the “bodily injury” or “property damage” occurs. D. Blanket Waiver Of Subrogation The following is added to the SECTION IV – BUSI- NESS AUTO CONDITIONS, A. Loss Conditions, 5. Transfer Of Rights Of Recovery Against Others To Us: We waive any right of recovery we may have against any person or organization to the extent required of you by a contract executed prior to any “accident” or “loss”, provided that the “accident” or “loss” arises out of the operations contemplated by such contract. The waiver applies only to the person or organization designated in such contract. E. Employee Hired Autos 1. The following is added to the SECTION II – COVERED AUTOS LIABILITY COVERAGE, Paragraph A.1. Who Is An Insured Provision: 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. 2.Changes In General Conditions: Paragraph 5.b. of the Other Insurance Con- dition in the BUSINESS AUTO CONDITIONS is deleted and replaced with the following: b.For Hired Auto Physical Damage Coverage, the following are deemed to be covered “autos” you own: (1) Any covered “auto” you lease, hire, rent or borrow; and (2) Any covered “auto” hired or rented by your “employee” under a contract in that individual “employee's” name, with your permission, while performing duties related to the conduct of your business. However, any “auto” that is leased, hired, rented or borrowed with a driver is not a covered “auto”. F. Fellow Employee Coverage SECTION II – COVERED AUTOS LIABILITY COVERAGE, Exclusion B.5. does not apply if you have workers compensation insurance in-force covering all of your employees. G. Auto Loan Lease Gap Coverage SECTION III – PHYSICAL DAMAGE COVERAGE, C. Limit Of Insurance, is amended by the addition of the following: In the event of a total “loss” to a covered “auto” shown in the Schedule of Declarations, we will pay any unpaid amount due on the lease or loan for a covered “auto”, less: 1.The amount paid under the PHYSICAL DAMAGE COVERAGE section of the policy; and 2.Any: a.Overdue lease/loan payments at the time of the “loss”; Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project 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 Cotton Shires & Assoc, Inc. (“Contractor”), a Corporation for Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project, 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 October 31, 2024 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on the effective date and shall be completed by October 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. 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 $49,342.00 (“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 Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project Page 2 of 9 Professional/Consulting Contracts /Version: October 2021 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, p ersonal 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 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. Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project Page 3 of 9 Professional/Consulting Contracts /Version: October 2021 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 between Contractor and any third party, are public records under the California Public Records Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project Page 4 of 9 Professional/Consulting Contracts /Version: October 2021 Act, California Government Code section 6250 et seq. Contractor shall comply with all laws regarding the retention of public records and shall make such records available to the City upon request by the City, or in such manner as the City reasonably directs that such records be provided. 9. ASSIGNMENT Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Agreement and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. 10. PUBLICITY / SIGNS Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the City’s contributions in making the project possible. The words “City of Cupertino” will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews and newspaper articles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and consultants (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) of every nature, arising directly or indirectly from this Agreement or in any manner relating to any of the following: (a) Breach of contract, obligations, representations, or warranties; (b) Negligent or willful acts or omissions committed during performance of the Services; (c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; (d) Unauthorized use or disclosure of City’s confidential and proprietary Information; (e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must 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 Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project Page 5 of 9 Professional/Consulting Contracts /Version: October 2021 the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee. 11.4. Contractor’s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement, a purchase order, or other transaction. 11.5. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 11.6. This Section 11 shall survive termination of the Agreement. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor’s compensation or terminating the Agreement. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor’s ability to perform. Contractor is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act. 13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a “public works” component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS), or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, 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. Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project 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 Ca lifornia 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 Evelyn Moran 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 David Schrier 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 this Agreement must be filed with the Superior Court for the County of Santa Clara, State of Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project Page 7 of 9 Professional/Consulting Contracts /Version: October 2021 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 force and effect to the extent allowed by such ruling. All other terms and provisions of this Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project Page 8 of 9 Professional/Consulting Contracts /Version: October 2021 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: Evelyn Moran Email: evelynm@cupertino.org To Contractor: Cotton Shires & Assoc, Inc. 330 Village Lane Los Gatos, CA 95030-7218 Attention: David Schrier Email: dschrier@cottonshires.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. 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 David T Schrier David T Schrier Vice President Aug 10, 2023 Jimmy Tan Assistant Director of Public Works Aug 10, 2023 Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project Page 9 of 9 Professional/Consulting Contracts /Version: October 2021 APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Christopher D. Jensen Aug 10, 2023 Northern California Office Central California Office Southern California Office 646 University Avenue 6417 Dogtown Road 699 Hampshire Road, Suite 101 Los Gatos, CA 95032 San Andreas, CA 95249‐9640 Thousand Oaks, CA 91361‐2352 (408) 354‐5542 (209) 736‐4252 • Fax (209) 736‐1212 (805) 370‐8710 www.cottonshires.com COTTON, SHIRES AND ASSOCIATES, INC. CONSULTING ENGINEERS AND GEOLOGISTS May 8, 2023, Revised August 3, 2023 R1 E6151A By Email (evelynm@cupertino.org) Ms. Evelyn Moran, Public Works Project Manager CITY OF CUPERTINO 10300 Torre Ave Cupertino, CA 95014 SUBJECT: Geotechnical Construction Observation and Testing Services RE: Regnart Road, Phase 1 Cupertino, California REFERENCE: MME, Regnart Road Improvements Phase 1, Cupertino, CA, 100% Plans; Cotton, Shires and Associates, Inc., Supplemental Geotechnical Recommendations, Regnart Road, Hazard Sites #1 and #2, Cupertino, California, dated Jun22, 2021; and Cotton, Shires and Associates, Inc., Geotechnical Recommendations, Sites #1 and #2, Regnart Road, Station 28+40 to 29+80, Cupertino, California, dated February 18, 2020. Dear Ms. Moran: Cotton, Shires and Associates, Inc. (CSA) is pleased to provide the City of Cupertino with this cost estimate for construction observation and testing services. We anticipate that our services will include the following: 1) observing slope excavation for the upslope wall; 2) pier drilling and placement of beams and cages, and concrete; 3) observing and testing backdrain installation and backfill placement and compaction; 4) observing concrete footing subgrade; 5) observing and testing pavement subgrade and baserock compaction; and 6) preparing a construction observation and testing report. Exhibits A, B, C Evelyn Moran May 8, 2023, Revised August 3, 2023 R1 Page 2 E6151A COTTON, SHIRES AND ASSOCIATES, INC. The following table provides our estimated time and cost for performing the above‐described tasks. Our estimated times are based on the provided Draft 1 August 2, 2023 construction schedule. Estimated Task Hours Hourly Rate Cost Slope Excavation Observation ‐ 8 $135 $1,080 Pier Drilling, Beam and Concrete Installation Observation ‐ 120 $135 $16,200 Backdrain Installation and Backfill – Observation and Compaction 40 $135/$185* $5,400/$7,400* Concrete Footing Subgrade – Observation 8 $135 $1,080 Pavement Subgrade Preparation – Observation and Compaction 48 $135/$185* $6,480/$8,880* Subtotal Field $30,240/$34,640* *Field Tasks subject to prevailing wage are billed at an hourly rate of $185 Reimbursables ‐ Lab Testing, Vehicle, Nuclear Gauge $1,830 Office Support – Supervision, Meetings, QA/QC, Consultation (30% of Field) $9,072 Construction Observation and Testing Report $3,800 Subtotal Office $12,872 Total Office, Reimbursables and Field $44,942/$49,342* This cost estimate of either $44,942 or $49,342 (if this is a prevailing wage project) is based on our experience with similar wall construction projects, and includes 4 part‐ time site visits to observe slope excavation and footing subgrade, and 23 days of full‐time observation for pier drilling, retaining wall pier construction work, wall backfill/backdrain installation, and observing and testing pavement subgrade and base compaction, as described above, and should be used for budgeting purposes only. A contingency should be added for delays beyond our control, including the weather, the Contractors’ schedule and ability, and other factors. Ultimately, our time spent on site will be determined by the Contractor’s schedule and competency. If the Contractor is able to undertake several tasks simultaneously, our time would be reduced. As usual, the City will only be invoiced for the actual hours spent for these tasks. If, during the course of construction, it appears that our estimated budget will be exceeded, we will Evelyn Moran May 8, 2023, Revised August 3, 2023 R1 Page 3 E6151A COTTON, SHIRES AND ASSOCIATES, INC. inform you so that additional written authorization can be obtained prior to completion of any additional work. Limitations Our services consist of professional opinions and conceptual recommendations made in accordance with generally accepted engineering geology and geotechnical engineering principles and practices. No warranty, expressed or implied, or merchantability or fitness, is made in or intended in connection with our work, by the proposal for consulting or other services, or by the furnishing of oral or written reports or findings. If you have any questions, or need additional information, please contact us. Respectfully submitted, COTTON, SHIRES AND ASSOCIATES, INC. David T. Schrier Principal Geotechnical Engineer GE 2334 Reviewed By: Andrew Mead, Principal Engineering Geologist Approved and Authorized By Date AM:DTS Attachment: Schedule of Charges COTTON, SHIRES AND ASSOCIATES, INC. SCHEDULE OF CHARGES, LIMITATIONS AND TERMS FOR PROFESSIONAL SERVICES (Page 1 of 2) January 2023 Personnel Charges Senior Principal Engineer/Geophysicist $ 340/hr Principal Geologist/Engineer $ 285/hr Supervising Geologist/Engineer $ 235/hr Senior Geologist/Engineer $ 210/hr Senior GIS Specialist $ 190/hr Senior Staff Geologist/Engineer $ 180/hr Staff Geologist/Engineer $ 160/hr Field/Laboratory Technician $ 135/hr* Clerical/Accounting $ 100/hr *Field Tasks that are subject to prevailing wage will be billed at $185/hr Equipment and Supply Charges Drone System $ 230/day Inclinometer System $ 230/day Piezometer Data Acquisition System $ 120/day Total Station Surveying Equipment $ 350/day GPS Surveying Equipment $ 450/day Nuclear Moisture/Unit Weight Gauge $ 170/day Rope Climbing Safety Equipment $ 290/day Multi-Channel Seismograph System and ReMi $ 345/day Nearmap Aerial Photographs $ 210/site Vehicle Mileage (or Current IRS Approved Rate) $ .625/mi Aircraft Mileage (or Current GSA Approved Rate) $1.52/nmi Photocopying (B&W-Color) $ .25-.60/copy Engineering (Large Format) Copier $ .60/ft2 Computer Assisted Color Plotting $ 15/sq. ft. Expert Witness Consultation Charges Expert witness testimony for court appearances and binding arbitrations shall be charged on a daily basis (minimum one-half day increments) at a rate of $4,640 per day. Deposition testimony shall be charged at a rate of $580 per hour (minimum one hour charge). Preparation time for depositions or court appearances shall be charged on a time-and-expense basis in accordance with the Personnel, Equipment, and Expense charges listed herein. Laboratory Testing and Geophysical Service Charges Laboratory testing and geophysical services shall be charged on a time-and- materials basis in accordance with the Personnel, Equipment, and Expense charges listed herein. Laboratory samples shall be stored for 60 days after the date of final report submittal unless special arrangements are made for longer storage. Expense Charges (Receipted Costs Plus 15%) • Travel expenses including air fare, lodging, vehicle rental, etc. (either actual receipted costs plus 15% for meals or a flat subsistence charge of $80 per diem for overnight stay shall be charged in addition to the lodging cost) • Excavation subcontractors and expendable field supplies • Reproduction of drawings • Film, film development, and photograph printing • Special fees, permits, insurance, etc. • Conference call telephone costs • Special mail service (air, electronic, courier, etc.) • Special equipment rental • Special consultant fees Limitations and Terms for Professional Services AGREEMENT – This Schedule of Charges, Limitations and Terms for Professional Services as an attachment to a signed Proposal or Client Contract constitutes an “Agreement” between COTTON, SHIRES AND ASSOCIATES, INC. (CSA) and the Client. Client has authorized commencement of the work under this Agreement by signing the “Approved by” section of the Proposal or Contract. The Agreement is hereby incorporated and made part of the Contract between the parties. In consideration of the mutual Agreement set forth herein and intending to be legally bound, the parties hereto agree as to the following: Invoicing and Payment – Client shall pay CSA compensation as outlined in the Proposal or at the rates determined in the above Schedule of Charges and according to the payment terms below. If the work extends into subsequent calendar years, the Schedule of Charges in effect for the year the work was conducted shall prevail unless otherwise agreed to in the contract for the work. Invoices may be prepared and submitted by CSA on a monthly basis or when the work is completed, at CSA’s option. Payment is due upon receipt and is past due thirty (30) days from date of invoice. A service charge of 1.5% per month, or the maximum amount allowed by law, will be charged on past due accounts. Payments by Client will thereafter be applied first to accrued interest and then to the principal unpaid balance. Any attorney fees, court costs, or other costs incurred in collection of delinquent accounts shall be paid by the Client. If payment of invoices is not current, CSA may suspend performing further work at no liability to CSA. Relationship between CSA and Client – CSA is retained by the Client to investigate and to consult with the Client regarding the Project, as defined in the Proposal. Client shall provide CSA in writing with all information relevant to the Project and shall advise CSA of any condition known to Client that may affect CSA’s performance under this Agreement. CSA’s services are for the benefit of the Client, but Client recognizes that the extent of those services is limited by the time-frame chosen and the funds expended by the Client for the investigation. CSA has no responsibility for the work product of any independent consultants required for the Client’s Project, nor for completeness, adequacy, or quality of said independent consultants’ work, or specialty work. Information Provided by Client – CSA and the Client shall discuss and agree upon the information needed for rendering of services hereunder. The Client agrees to provide to CSA all such information as agreed to be necessary. With respect to such information, the Client understands and agrees that CSA will rely solely upon the Client to ensure the accuracy and completeness thereof, as the Client recognizes that it is impossible for CSA to assure the accuracy, completeness and sufficiency of such information. Ownership of Documents and Proprietary Information – This proposal and all documents, including, but not limited to, drawings, specifications, computer disks, reports, calculations, and estimates, prepared by CSA in connection with this Agreement (“CSA Confidential Information”) are instruments of service and are intended for the sold use of the recipient hereof, and may not, except as otherwise described herein, be disclosed, distributed, or disseminated in any form without the prior written consent of CSA. The CSA Confidential Information is and shall remain the sole property of CSA. Client may distribute documents generated by CSA in connection with CSA’s services under this Agreement to third parties, provided that said third party agrees in writing to be bound by the confidentiality and ownership of documents provisions of this Agreement. The terms of this Section shall survive the termination of this Agreement. CSA SCHEDULE OF CHARGES, LIMITATIONS AND TERMS FOR PROFESSIONAL SERVICES (Page 2 of 2) Public Liability -- COTTON, SHIRES AND ASSOCIATES, INC. is a California Corporation protected by Worker's Compensation Insurance (and/or Employer's Liability Insurance), and by Public Liability Insurance for bodily injury and property damage, and will furnish certificates thereof upon request. We assume the risk of damage to our own supplies and equipment. If your contract or purchase order places greater responsibilities upon us or requires further insurance coverage, we, if specifically directed by you, will procure additional insurance (if procurable) to protect us at your expense, but we shall not be responsible for property damage from any cause, including fire and explosion, beyond the amounts of coverage of our insurance. Standard of Care and Professional Liability -- In performing professional services, CSA shall use that degree of care and skill ordinarily exercised under similar circumstances by members of our profession at the time the services are performed. No other representation or warranty, expressed or implied, is made or intended in this Agreement, by our proposal for consulting services, by our furnishing oral opinion or written reports, or by our inspection or work. However, should we or any of our professional employees be found to have been negligent in the performance of professional services or to have made and breached any express or implied warranty, you agree that the maximum aggregate amount of your recovery against us and/or said professional employees shall be limited to $50,000 or the amount of the fee paid us for professional services as computed under the SCHEDULE OF CHARGES, whichever amount is greater. Moreover, client agrees to indemnify us against damages in excess of $50,000 or the amount of our fee, whichever amount is greater, arising from suits brought against us by third parties, in connection with our work performed on your project. Notices -- All notices in writing to be given hereunder by either party to the other party shall be served by letter or sent by email. Assignment -- Neither this agreement nor the benefits or obligations under this Agreement shall be sold, assigned or transferred by either party to any third parties including subsidiary or affiliated companies without the prior written approval of the other party, with such approval not to be unreasonably withheld by either. In the event the approval is given by either for assignment or transfer, such an approval shall not relieve either from any liability and/or responsibility under the Agreement. Termination/Cancellation -- Client and CSA will have the right to terminate this Agreement for reasonable cause by giving ten (10) days prior written notice. After termination, CSA will be reimbursed for services rendered and necessary expenses incurred to the termination date upon submission to Client of detailed supporting invoices. The obligations of paragraphs 3, 4, and 6 remain in effect after termination. Change in Scope of Work -- If, during the performance of the work under this Agreement, it is determined that the scope of work has expanded or changed such that additional expenditures are required, the client shall be notified and approval from the client shall be received prior to the performance of the additional services. Dispute Resolution -- CSA and Client recognize that disputes arising under this Agreement are best resolved at the working level by the parties directly involved. Both parties are encouraged to be imaginative in designing mechanism and procedures to resolve disputes at this level. Such efforts shall include the referral of any remaining issues in dispute to higher authority within each participating party’s organization for resolution. Failing resolution of conflicts at the organizational level, CSA and Client agree that any remaining conflicts arising out of or relating to this Agreement shall be submitted to non-binding mediation unless CSA and Client mutually agree otherwise. If the dispute is not resolved through non-binding mediation, then the parties may take other appropriate action subject to the other terms of this Agreement. Neither party shall hold the other responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents or other events beyond the reasonable control of the other party, its employees or agents. Should litigation or arbitration occur between the parties relating to the provisions of this Agreement, all litigation or arbitration expenses, collection expenses, witness fees, court costs and attorneys’ fees reasonably incurred by the prevailing party shall be paid by the non-prevailing party. Governing Law -- The validity, performance, and construction of this Agreement, and the relationship between Client and CSA shall be governed and interpreted in accordance with the substantive laws of California, United States of America, without regard to its choice of law rules. This Agreement shall be construed as to its fair and not strictly for or against either party. Jobsite Safety – Neither the professional activities of CSA, nor the presence of CSA employees and CSA subconsultants at a construction site, shall relieve the contractor and any other entity of their obligations, duties and responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending or coordinating all portions of the Work of construction in accordance with the contract documents and any health of safety precautions required by any regulatory agencies. CSA and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. The Client agrees that the general contractor and its various subcontractors are solely responsible for jobsite safety, and warrants that this intent shall be made evident where appropriate in the Client’s agreements with other contractors. If the Client is a Contractor or Subcontractor on the Project, the Client also agrees that the Client, CSA, and CSA’s consultants shall be indemnified and shall be made additional insureds under the client’s general liability insurance policy; in other cases, the Client agrees to arrange for this indemnification and additional insureds under the General Contractor’s general liability insurance policy. Field Exploration -- Unless otherwise agreed, the client shall furnish right-of-entry on land for planned field operations. The client shall also provide CSA with locations and depths of buried utilities and structures. CSA shall take responsible precautions to minimize damage to land from use of equipment, but our fee does not include cost of restoration of damage resulting from our exploration operations. CSA shall not be liable for damage or injury arising from damage to subterranean structures (pipes, tanks, telephone cables, etc.) which are not called to our attention and correctly shown on plans furnished to us. Miscellaneous – In the event of any litigation or proceeding involving CSA and Client, the prevailing party shall be entitled to recover its reasonable legal fees, expert fees, and normal employee rates and associated costs from the non-prevailing party. Failure by Client to object to any of the terms and conditions contained in this Agreement before the commencement of services by CSA will be deemed an acceptance of such terms and conditions. Notwithstanding anything to the contrary in this Agreement, CSA and Client agree that neither party shall be liable for any special, indirect, consequential, lost profits, or punitive damages. If any term, condition, or provision of this Agreement is found unenforceable by a court of law or equity, this Agreement shall be construed as though that term, condition, or provision did not exist, and its unenforceability shall have no effect whatsoever on the rest of this Agreement. Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 1 Form Updated Jan. 2022 Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED 1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 10 (04/13). c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant’s profession, with limits no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. If written on a claims made form: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the Services. EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 2 Form Updated Jan. 2022 OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers (“Additional Insureds”) are to be covered as additional insureds on Consultant’s CGL and automobile liability policies. General Liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if later editions are used). Primary Coverage Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’s insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better. Verification of Coverage Consultant must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the Contract term. Subconsultants Consultant shall require and verify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant’s insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained by Consultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 8/1/2023 License # 0E67768 (925) 660-3514 50008 (925) 416-7869 13056 Cotton, Shires and Associates, Inc. 646 University Avenue Los Gatos, CA 95030 A 2,000,000 PSB0006677 2/1/2023 2/1/2024 1,000,000 10,000 2,000,000 4,000,000 4,000,000 1,000,000A PSA0002275 2/1/2023 2/1/2024 4,000,000A PSE0002888 2/1/2023 2/1/2024 4,000,000 A PSW0003773 2/1/2023 2/1/2024 1,000,000 1,000,000 1,000,000 A Professional Liab.RDP0049702 2/1/2023 Per Claim 2,000,000 A Professional Liab.RDP0049702 2/1/2023 2/1/2024 Aggregate 4,000,000 All operations of the Named Insured. General Liability: Please see Additional Insured Endorsement attached; such coverage is Primary & Non-Contributory, with Waiver of Subrogation and Per Project Aggregate included, as required by written contract. Auto Liability: Please see Additional Insured Endorsement attached, as required by written contract. Workers' Compensation: Waiver of Subrogation is included as per attached Waiver of Subrogation Endorsement, as required by written contract. GENERAL LIABILITY & AUTO LIABILITY ADDITIONAL INSURED INCLUDES THE FOLLOWING PERSON(S) OR ORGANIZATION(S): The City of Cupertino, its City Council, officers, officials, employees, and authorized agents, servants and volunteers and/or as required by written contract City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 COTTSHI-01 YUENG IOA Insurance Services 3875 Hopyard Road Suite 200 Pleasanton, CA 94588 Gigi Yuen Gigi.Yuen@ioausa.com RLI Insurance Company X 2/1/2024 X X X X X X Policy Number:RLI Insurance Company Named Insured: PPA 300 03 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. RLIPack® BUSINESS AUTO ENHANCEMENT SCHEDULE OF COVERAGES ADDRESSED BY THIS ENDORSEMENT A. Broad Form Named Insured B. Employees As Insureds C. Blanket Additional Insured D. Blanket Waiver Of Subrogation E. Employee Hired Autos F. Fellow Employee Coverage G. Auto Loan Lease Gap Coverage H. Glass Repair – Waiver Of Deductible I. Personal Effects Coverage J. Hired Auto Physical Damage Coverage K. Hired Auto Physical Damage – Loss Of Use L. Hired Car – Worldwide Coverage M. Temporary Transportation Expenses N. Amended Bodily Injury Definition – Mental Anguish O. Airbag Coverage P. Amended Insured Contract Definition – Railroad Easement Q. Coverage Extensions – Audio, Visual And Data Electronic Equipment Not Designed Solely For The Production Of Sound R. Notice Of And Knowledge Of Occurrence S. Unintentional Errors Or Omissions T. Towing Coverage Cotton, Shires and Associates, Inc. PSA0002275 PPA 300 03 13 This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM A. Broad Form Named Insured The following is added to the SECTION II – COVERED AUTOS LIABILITY COVERAGE, Para- graph A.1. Who Is An Insured Provision: Any business entity newly acquired or formed by you during the policy period, provided you own fifty percent (50%) or more of the business entity and the business entity is not separately insured for Bus- iness Auto Coverage. Coverage is extended up to a maximum of one hundred eighty (180) days following the acquisition or formation of the business entity. This provision does not apply to any person or organization for which coverage is excluded by endorsement. B. Employees As Insureds The following is added to the SECTION II – COVERED AUTOS LIABILITY COVERAGE, Para- graph A.1. Who Is An Insured Provision: Any “employee” of yours is an “insured” while using a covered “auto” you don't own, hire or borrow in your business or your personal affairs. C. Blanket Additional Insured The following is added to the SECTION II – COVERED AUTOS LIABILITY COVERAGE, Para- graph A.1. Who Is An Insured Provision: Any person or organization that you are required to include as an additional insured on this coverage form in a contract or agreement that is executed by you before the “bodily injury” or “property damage” occurs is an “insured” for liability coverage, but only for damages to which this insurance applies and only to the extent that person or organization qualifies as an “insured” under the Who Is An Insured provision contained in SECTION II – COVERED AUTOS LIABILITY COVERAGE. The insurance provided to the additional insured will be on a primary and non-contributory basis to the additional insured’s own business auto coverage if you are required to do so in a contract or agreement that is executed by you before the “bodily injury” or “property damage” occurs. D. Blanket Waiver Of Subrogation The following is added to the SECTION IV – BUSI- NESS AUTO CONDITIONS, A. Loss Conditions, 5. Transfer Of Rights Of Recovery Against Others To Us: We waive any right of recovery we may have against any person or organization to the extent required of you by a contract executed prior to any “accident” or “loss”, provided that the “accident” or “loss” arises out of the operations contemplated by such contract. The waiver applies only to the person or organization designated in such contract. E. Employee Hired Autos 1. The following is added to the SECTION II – COVERED AUTOS LIABILITY COVERAGE, Paragraph A.1. Who Is An Insured Provision: 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. 2.Changes In General Conditions: Paragraph 5.b. of the Other Insurance Con- dition in the BUSINESS AUTO CONDITIONS is deleted and replaced with the following: b.For Hired Auto Physical Damage Coverage, the following are deemed to be covered “autos” you own: (1) Any covered “auto” you lease, hire, rent or borrow; and (2) Any covered “auto” hired or rented by your “employee” under a contract in that individual “employee's” name, with your permission, while performing duties related to the conduct of your business. However, any “auto” that is leased, hired, rented or borrowed with a driver is not a covered “auto”. F. Fellow Employee Coverage SECTION II – COVERED AUTOS LIABILITY COVERAGE, Exclusion B.5. does not apply if you have workers compensation insurance in-force covering all of your employees. G. Auto Loan Lease Gap Coverage SECTION III – PHYSICAL DAMAGE COVERAGE, C. Limit Of Insurance, is amended by the addition of the following: In the event of a total “loss” to a covered “auto” shown in the Schedule of Declarations, we will pay any unpaid amount due on the lease or loan for a covered “auto”, less: 1.The amount paid under the PHYSICAL DAMAGE COVERAGE section of the policy; and 2.Any: a.Overdue lease/loan payments at the time of the “loss”; Amendment 1 Cotton Shires for Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Project Final Audit Report 2024-07-15 Created:2024-07-10 By:Webmaster Admin (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAKAhXg1dRWCAYClkN-tfsUZLx5SSrGEFK "Amendment 1 Cotton Shires for Geotechnical and Engineering Testing and Consulting Services for Regnart Road Phase 1 Proj ect" History Document created by Webmaster Admin (webmaster@cupertino.org) 2024-07-10 - 10:35:58 PM GMT- IP address: 35.229.54.2 Document emailed to Jindy Gonzalez (jindyg@cupertino.org) for approval 2024-07-10 - 10:37:57 PM GMT Email viewed by Jindy Gonzalez (jindyg@cupertino.org) 2024-07-10 - 10:38:13 PM GMT- IP address: 52.202.236.132 Document approved by Jindy Gonzalez (jindyg@cupertino.org) Approval Date: 2024-07-14 - 11:46:50 PM GMT - Time Source: server- IP address: 174.85.102.16 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2024-07-14 - 11:46:52 PM GMT Email viewed by Araceli Alejandre (aracelia@cupertino.org) 2024-07-14 - 11:47:00 PM GMT- IP address: 3.232.50.116 Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2024-07-15 - 2:51:12 PM GMT - Time Source: server- IP address: 71.204.144.228 Document emailed to dschrier@cottonshires.com for signature 2024-07-15 - 2:51:14 PM GMT Email viewed by dschrier@cottonshires.com 2024-07-15 - 2:53:32 PM GMT- IP address: 99.152.117.184 Signer dschrier@cottonshires.com entered name at signing as David T Schrier 2024-07-15 - 2:54:35 PM GMT- IP address: 99.152.117.184 Document e-signed by David T Schrier (dschrier@cottonshires.com) Signature Date: 2024-07-15 - 2:54:37 PM GMT - Time Source: server- IP address: 99.152.117.184 Document emailed to Christopher Jensen (christopherj@cupertino.org) for signature 2024-07-15 - 2:54:39 PM GMT Email viewed by Christopher Jensen (christopherj@cupertino.org) 2024-07-15 - 2:54:46 PM GMT- IP address: 52.202.236.132 Signer Christopher Jensen (christopherj@cupertino.org) entered name at signing as Christopher D. Jensen 2024-07-15 - 3:00:26 PM GMT- IP address: 136.24.22.194 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2024-07-15 - 3:00:28 PM GMT - Time Source: server- IP address: 136.24.22.194 Document emailed to Chad Mosley (chadm@cupertino.org) for signature 2024-07-15 - 3:00:30 PM GMT Email viewed by Chad Mosley (chadm@cupertino.org) 2024-07-15 - 3:00:39 PM GMT- IP address: 52.202.236.132 Document e-signed by Chad Mosley (chadm@cupertino.org) Signature Date: 2024-07-15 - 3:05:45 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2024-07-15 - 3:05:51 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2024-07-15 - 3:05:57 PM GMT- IP address: 3.232.50.116 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2024-07-15 - 4:07:30 PM GMT - Time Source: server- IP address: 64.165.34.3 Agreement completed. 2024-07-15 - 4:07:30 PM GMT