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19-100 Amendment #2 dated 8-8-24 to Zayo Agr. for Business Continuity and Disaster Recovery Telecom Services1 SECOND AMENDMENT TO AGREEMENT 19-100 BETWEEN THE CITY OF CUPERTINO AND ZAYO GROUP, LLC FOR BUSINESS CONTINUITY AND DISASTER RECOVERY TELECOM SERVICES This Second Amendment to Agreement 19-100 is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and Zayo Group, LLC., a Limited Liability Corporation (“Contractor”) whose address is 1821 30th Street, Unit A, Boulder, CO 80301, and is made with reference to the following: RECITALS: A. On July 1, 2019, Agreement 19-100 (“Agreement”) was entered into by and between City and Contractor for Business Continuity and Disaster Recovery Telecom Services. B. On July 27, 2022, First Amendment to Agreement 19-100 (“Agreement”) was entered into by and between City and Contractor for Business Continuity and Disaster Recovery Telecom Services. C. 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 and undersigned parties as follows: COMPENSATION 1. Paragraph 4.1 of the Agreement is modified to read as follows: Customer Orders and Maximum Compensation. City may request that Contractor provide Services by submitting a customer order in a form provided by Contractor (" Customer Order"). Each accepted Customer Order shall be subject to the Agreement. Customer Orders shall set forth the term, pricing, Service type and location(s), monthly recurring charge MRC"), non- recurring charge (" NRC"), and any additional terms applicable to the Services. All Customer Orders shall be subject to availability and acceptance by Contractor. Contractor acknowledges and agrees that the aggregate charges under Customer Orders under this PCSA may not exceed $ 187,757.80 (" Contract Price") unless otherwise agreed to in writing by the Parties in an amendment to this Agreement. 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. 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 ZAYO GROUP, LLC By Title Date EXPENDITURE DISTRIBUTION Item Amount Original Contract $ 89, 852. 40 First Amendment $77,464.50 Second Amendment $20,440.90 Total $187,757.80 Eric Cho Zayo Sales Aug 7, 2024 CTO Aug 8, 2024 Aug 8, 2024 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 DATE (MM/DD/YYYY) 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 RENTED CLAIMS-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 AGG $JECT OTHER:$ 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 LIMIT $DESCRIPTION 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. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE Lockton Companies 8110 E Union Avenue Suite 100 Denver CO 80237 (303) 414-6000 Zayo Group, LLC 1401 Wynkoop Street, Suite 500 Denver, CO 80202 The Charter Oak Fire Insurance Company 25615 The Travelers Indemnity Company of Connecticut 25682 Travelers Property Casualty Company of America 25674 X X X Contractual Liab X StopGap- ND,OH,WA,WY 1,000,000 1,000,000 5,000 1,000,000 2,000,000 2,000,000 X X X 1,000,000 XXXXXXX XXXXXXX XXXXXXX Comp/Coll Ded 1,000 X X X 10,000 10,000,000 10,000,000 XXXXXXX N X 1,000,000 1,000,000 1,000,000 B CAP-9P531243-24 8/1/2024 8/1/2025 A GLSA-9P531231-24 8/1/2024 8/1/2025 A CUP-9P531255-24 8/1/2024 8/1/2025 A UB-9W153768-24 8/1/2024 8/1/2025 C UB-9W153098-24 8/1/2024 8/1/2025 8/1/2025 1509327 Y Y N N N N Y 7/22/2024 18657744 18657744 XXXXXXX The City of Cupertino 10300 Torre Ave Cupertino, CA 95014 The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are included as Additional Insured as respects General Liability if required by written contract. Coverage is Primary and Non-Contributory. Waiver of Subrogation applies in favor of the Additional Insured as respects General Liability and Workers Comp if required by written contract, where permissible by law. X See Attachments The City of Cupertino 10300 Torre Ave Cupertino, CA 95014 To whom it may concern: In our continuing effort to provide timely certificate delivery, Lockton Companies is transitioning to paperless delivery of Certificates of Insurance, thus this is your final hard-copy delivery. To ensure electronic delivery for future renewals of this certificate, we need your email address. Please contact us via one of the methods below, referencing Certificate ID 18657744. Email: mountainwestedelivery@lockton.com Phone: 303-728-8060 If you received this certificate through an internet link where the current certificate is viewable, we have your email and no further action is needed. In the event your mailing address has changed, will change in the future, or you no longer require this certificate, please let us know using one of the methods above. The above inbox and phone number is for automating electronic delivery of certificates only. Please do NOT send future certificate requests to this inbox or contact the phone number below with email updates. Thank you for your cooperation and willingness in reducing our environmental footprint. Lockton Companies Lockton Companies 8110 E. Union Avenue, Suite 100 Denver, CO 80237 Attachment Code: D644713 Master ID: 1509327, Certificate ID: 18657744 GLSA-9P531231-24 COMMERICAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (Included Products-Completed Operations If Required By Contract) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PAGE PROVISIONS The following is added to SECTION II - WHO IS AN INSURED: Any person or organization that you agree in a written contract or agreement to include as an additional insured on this Coverage Part is an insured, but only: a. With respect to liability for "bodily injury" or "property damage" that occurs, or for "personal injury" caused by an offense that is committed, subsequent to the signing of that contract or agreement and while that part of the contract of agreement is in effect; and b. If, and only to the extent that, such injury or damage is caused by acts or omissions of you and your subcontractor in the performance of "your work" to which the written contract or agreement applies. Such person or organization does not qualify as an additional insured with respect to the independent acts or omissions of such person or organization. The insurance provide to such additional insured is subject to the following provisions: a. If the Limits of Insurance of this Coverage Part shown in the Declarations exceed the minimum limits required by the written contract or agreement, the insurance provided to the additional insured will be limited to such minimum required limits. For the purposes of determining whether this limitation applies, the minimum limited required by the written contract or agreement will be considered to include the minimum limits of any Umbrella or Excess liability coverage required for the additional insured by that written contract or agreement. This provision will not increase the limits of insurance described in Section III - Limits Of Insurance. b. The insurance provided to such additional insured does not apply to: (1) Any "bodily injury", "property damage" or "personal injury" arising out of the providing or failure to provide, any professional , architectural, engineering, or surveying services, including: (a) The preparing, approving, or failing to prepare or approve, maps, shop[, drawings, opinions, reports, surveys, field orders or change orders, or the preparing, approving, or failing to prepare or approve, drawings, and specifications; and (b) Supervisory, inspection, architectural or engineering activities. (2) Any "bodily injury" or "personal damage" caused by "your work" and included in the "products-completed operations hazard" unless the written contract or agreement specifically requires you to provide such coverage for that additional insured during the policy period. c. The additional insured must comply with the following duties: (1) Give us written notice as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, such notice should include: (a) How, when and where the "occurrence" took place; (b) The names and addresses of any injured persons and witnesses; and (c) The nature and location of any injury or damage arising out of the "occurrence" or offense. (2) If a claim is made of "suit" is brought against the additional insured: CG D2 46 04 19 © 2018 The Travelers Indemnity Company. All rights reserved. Page 1 of 2 COMMERCIAL GENERAL LIABILITY Attachment Code: D609452 Certificate ID: 18657744 (a) Immediately record the specifics of the claim or "suit" and the date received; and (b) Notify us as soon as practicable and see to it that we receive written notice of the claim or "suit" as soon as practicable. (3) Immediately send us copies of all legal papers received in connection with the claim or "suit", cooperate with us in the investigation, or settlement of the claim or defense against the "suit", and otherwise comply with all policy conditions. (4) Tender the defense and indemnity of any claim or "suit" to any provider of other insurance which would cover such additional insured for a loss we cover. However, this condition does not affect whether the insurance provided to such additional insured is primary to the other insurance available to such additional insured which covers that person or organization as a names insured as described in Paragraph 4., Other Insurance, of Section IV - Commercial General Liability Conditions. CG D2 46 04 19 © 2018 The Travelers Indemnity Company. All rights reserved. Page 2 of 2 Attachment Code: D609452 Certificate ID: 18657744 GLSA-9P531231-24 BLANKET WAIVER OF SUBROGATION The following is added to Paragraph 8., Transfer Of Rights Of Recovery Against Others To Us, of SECTION IV – COMMERCIAL GENERAL LI-ABILITY CONDITIONS: If the insured has agreed in a contract or agreement to waive that insured's right of recovery against any person or organization, we waive our right of recovery against such person or organization, but only for payments we make because of: a. "Bodily injury" or "property damage" caused by an "occurrence" that takes place; or b. "Personal injury" or "advertising injury" caused by an offense that is committed; subsequent to the execution of the contract or agreement. Attachment Code: D609428 Certificate ID: 18657744 UB-9W153768-24 contract executed prior to loss. Travelers Property Casualty Company of America Countersigned by WC 00 03 13 UB-9W153768-24 Attachment Code: D609880 Certificate ID: 18657744 Second Amendment to Zayo Agr., for Business Continuity and Disaster Recovery Telecom Services Final Audit Report 2024-08-08 Created:2024-08-01 By:Webmaster Admin (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAV7IZHKheNCKPy5wLsktR2_1n7ZrIbCst "Second Amendment to Zayo Agr., for Business Continuity and Disaster Recovery Telecom Services" History Document created by Webmaster Admin (webmaster@cupertino.org) 2024-08-01 - 4:03:39 PM GMT- IP address: 35.229.54.2 Document emailed to Marilyn Pavlov (marilynp@cupertino.org) for approval 2024-08-01 - 4:05:29 PM GMT Email viewed by Marilyn Pavlov (marilynp@cupertino.org) 2024-08-01 - 4:06:02 PM GMT- IP address: 54.241.152.15 Document approved by Marilyn Pavlov (marilynp@cupertino.org) Approval Date: 2024-08-01 - 4:07:11 PM GMT - Time Source: server- IP address: 69.209.31.163 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2024-08-01 - 4:07:13 PM GMT Email viewed by Araceli Alejandre (aracelia@cupertino.org) 2024-08-01 - 4:07:45 PM GMT- IP address: 52.202.236.132 Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2024-08-01 - 4:21:41 PM GMT - Time Source: server- IP address: 71.204.144.228 Document emailed to eric.cho@zayo.com for signature 2024-08-01 - 4:21:43 PM GMT Email viewed by eric.cho@zayo.com 2024-08-01 - 4:30:00 PM GMT- IP address: 66.249.83.76 Email viewed by eric.cho@zayo.com 2024-08-06 - 6:24:31 PM GMT- IP address: 74.125.210.65 Email viewed by eric.cho@zayo.com 2024-08-07 - 8:23:01 PM GMT- IP address: 74.125.210.69 Signer eric.cho@zayo.com entered name at signing as Eric Cho 2024-08-07 - 9:54:08 PM GMT- IP address: 136.226.50.192 Document e-signed by Eric Cho (eric.cho@zayo.com) Signature Date: 2024-08-07 - 9:54:10 PM GMT - Time Source: server- IP address: 136.226.50.192 Document emailed to Christopher Jensen (christopherj@cupertino.org) for signature 2024-08-07 - 9:54:12 PM GMT Email viewed by Christopher Jensen (christopherj@cupertino.org) 2024-08-07 - 9:54:56 PM GMT- IP address: 52.202.236.132 Signer Christopher Jensen (christopherj@cupertino.org) entered name at signing as Christopher D. Jensen 2024-08-07 - 11:03:56 PM GMT- IP address: 174.194.192.218 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2024-08-07 - 11:03:58 PM GMT - Time Source: server- IP address: 174.194.192.218 Document emailed to Teri Gerhardt (terig@cupertino.org) for signature 2024-08-07 - 11:03:59 PM GMT Email viewed by Teri Gerhardt (terig@cupertino.org) 2024-08-07 - 11:04:30 PM GMT- IP address: 3.232.50.116 Document e-signed by Teri Gerhardt (terig@cupertino.org) Signature Date: 2024-08-08 - 5:01:26 PM GMT - Time Source: server- IP address: 107.3.130.161 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2024-08-08 - 5:01:28 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2024-08-08 - 5:02:12 PM GMT- IP address: 3.232.50.116 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2024-08-08 - 5:02:28 PM GMT - Time Source: server- IP address: 64.165.34.3 Agreement completed. 2024-08-08 - 5:02:28 PM GMT