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15-149 Dolphin Design for Aquarium MaintenanceSECOND AMENDMENT TO AGREEMENT: Ori2inal tQ. 2016-264. first Amendment PO 2018-578 BETWEEN IHE.. CITY OF CUPERTINO AND DOLPHIN DESIGN Ff).R.. AQUARIUM MAINTENANCE This Second Amendment to Agreement: Original PO 2016-264 and First Amendment PO 2018-578 between the City of Cupetiino and Dolphin Design, for reference dated I I l/2019 , is by and b e tween the ClTY OF CUPERTINO, a municipal corporation (hereinafter "Cii>") and Dolphin De s ign , a California partnership ("Consultant") whose address is 165 Cristich Lane, Suite B, Campbell CA 95008 . and is made with reference to the following: RECITALS: A On 1/1/20 15 , an agreement was entered into by and between City and Consultant (hereinafter "Agreement") for aquarium maintenance at the City of Cupe11ino Library. B. On 5 /29 /2018 , City and Consultant agreed to the First Amendrn:~nt for aquarium maintenance at the City of Cupettino Library. C. The Agreement and the First Amendments are col lective ly referred to as the "Agre ement" unless otherw ise indicated . D. City and Consultant desire to modify the Agreement on the tern1s and conditions set forth herein. NOW, THEREF ORE , it is mutually agreed by and between and undersigned parties as follows: 1. :LERM Paragraph l of the Agreement is modified to read a s follows : The term of the Agreement is extended for one year through 1/1/2020. This is the final Agreement extension . 2 . Except as express ly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in foll force and effect. IN WITNESS WHEREOF, the parties hereto have caus ed this modification of Agreement to be executed. CONSULTANT 13 y fkfl~ Title Pl!t(lT7V~(L RECOMMENDED FOR APPROVAL By ~~\O,l ~ Title ~~ Jk.D--~ \ CITY OF CUPERTINO ~~«bl,~ kl~ C ity Clerk 1-i r. ( ( EXPENDITURE DISTRIBUTION PO # Original PO 100-87-828-700-702 2016-264, First Amendment PO 2018-578 Original $25,290/year Amendment #1: Dates Only: 1/1 /18 -1/1/19 Amendment #2: Dates Only: 1/1/19 -1/1/20 Total: $25 ,290/year FIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND DOLPHIN DESIGN FOR CITY OF CUPERTINO AUOARIUM MAINTENANCE This First Amendment to the Agreement between the City of Cupertino and Dolphin Desig, for reference dated January I, 2018, is by and between the CITY OF CUPERTINO, a municipal corporation (hereinafter "City") and Dolphin Design a California partnership ("Contractor") whose address is 165 Cristich Lane, Suite B, Campbell, CA 95008, and is made with reference to the following: RECITALS: A . On January I, 2015, an agreement was entered into by and between City and Consultant (hereinafter "Agreement") for aquarium maintenance at the City of Cupertino Library. B. The Agreement and the First Amendment are collectively referred to as the "Agreement. C. City and Consultant 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: . I. Paragraph 1. TERM: of the Agreement is modified to read as follows : . ~ ~~~~~iG~~~;~;i;a!I dt;.{!a;~te ~w:rt~r aear 1 1;t !§1:rn that,may be extended up tor dditional one-year term/far a teta l gftwo y ea rs . 'l / 1µ If t,J Ive c,I,._ ~ ~ ... ) 2 . E xc ept as e x pressly modified herein , all other terms and covenants set forth in the Agreement _ ./ shall remain the same and sha.J.l be in full force and effec7 e.-vcq;.f-~ £y:~ . .B / Zr1s--(..eq/J Y~ 1-S /A u,,..r/~q~ ~ #.,<'.5 r,,t.jlu~C<-1 ~ --f/v. A-epe_~ ~ r'~ IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be 'fk- executed. ~ ~ CONTRACTOR By ~ J~Ff Titl~/C: Date 1 J ( ? / ( 8 CITY OF CUPERTINO A Municipal Corporation By: .. cr--~ Title ~0f S1 ,'bL·c. t.J., l..:....s, RECOMMENDED FOR APPROVAL: By: ~ l.uv}t-A..-IViJ lo.,V,(-+. Titl e·=¥,,J/\,s.-,,~ l'fV""~ ATTEST: ~jl--- C ity Clerk .S--)..1,/ t I ,r/_..,,I /J;;.r~r'- i tJ .. j PUBLIC WORKS CONSTRUCTION CONTRACTS Small Projects -$45,000 Insurance Requirements: Exhibit B Contractor shall procure and maintain for the duration of the contract, and for five years following the completion of the Project, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an J "occurrence" basis, written on a comprehensive general liability form , and must include coverage for liability arising from Contractor 's or Subcontractor's acts or omissions, including Contractor's protected coverage, blanket contractual, products and completed operations, vehicle coverage and employer's non-ownership liability coverage, with limits of at least $2,000,000 per occurrence. The CGL policy must protect against any and all liability for personal injury, death, property damage or destruction, and personal and advertising injury. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. a. It shall be a requirement under this agreement 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 (1) the minimum coverage/limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b . Additional Insured coverage under Contractor'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 CG 20 01 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 and non -contributory 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 Form CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, then V hired autos (Code 8) and non-owned autos (Code 9), with limit 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 accident for bodily injury or disease, or as otherwise V required by statute. If Contractor is self-insured , Contractor must provide a Certificate of Permission to Self-Insure , duly authorized by the DIR. D N/A if box checked (Contractor provides written verification it has no employees). 4 . Professional Liability with limits no less than $1,000,000 per occurrence or claim, and $2 ,000,000 aggregate. []f N/A if box checked (Contract is not design /build). 5. Builder's Risk. Course of Construction insurance utilizing an "All Risk " (Special Perils) coverage form, with limi~qual to the completed value of the project and no coinsurance penalty provisions. l..& N IA if box checked (Project does not involve construction or improvements/installations to property). Insurance Requirements for Construction Contracts -$45 ,000 Version : Nov 2017 6. Contractors' Pollution Legal Liability and/or Asbestos Legal Liability and /or Errors and Omissions with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. ·~ NIA if box checked (Project does not involve environmental hazards). If Contractor maintains broader coverage and /or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At City's option, either: (1) Contractor shall cause the insurer to reduce or eliminate self-insured retentions as respects City, its officers, officials, employees, and volunteers; or (2) Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses . The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or the City. OTHER INSURANCE PROVISIONS The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City of Cupertino, its City Council , officers, officials, employees, agents, servants and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of the Services performed by or on behalf of Contractor including materials, parts , or equipment furnished . Endorsement of CGL coverage shall be at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38 ; and CG 20 37 if a later edition is used . Primary Coverage For any claims related to this Project, Contractor 's insurance coverage shall be "primary and non-contributory" and at least as broad as ISO CG 20 01 04 13 with respect to City, its officers, officials, employees and volunteers, and shall not seek contribution from City 's insurance. If the limits of insurance are satisfied in part by Umbrella/Excess Insurance, the Umbrella/Excess Insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a "primary and non-contributory" basis for the benefit of City. Notice of Cancellation Each insurance policy required shall provide that coverage shall not be canceled, except with notice to the City. Each certificate of insurance must state that the coverage afforded by the policy is in force and will not be reduced , cancelled or allowed to expire without at least 30 days advance written notice to City, unless due to non -payment of premiums, in which case ten days advance written notice must be provided to City. Such notice must be sent to City via certified mail and addressed to the attention of the City Manager. Builder's Risk Contractor may submit Builder's Risk insurance in the form of Course of Construction coverage, which shall name the City as a loss payee, as its interest may appear. The Builder's Risk policy must be issued on an occurrence basis, for all-risk coverage on a 100% completed value basis on the insurable portion of the Project, with no coinsurance penalties, and for the benefit of City. If the Project does not involve new or major reconstruction, City may elect, acting in its sole discretion, to accept an Installation Floater policy instead of Builder's Risk. For such projects, the Property Installation Floater shall include improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment, and shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired , broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City's site. Insurance Requirements for Co nstruction Co ntracts -$45,000 Version: Nov 2 01 7 2 Waiver of Subrogation Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City. Contractor agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees , agents and subcontractors. Acceptability of Insurers Insurance must be issued by insurers acceptable to City and licensed to do business in the State of California, and each insurer must have an A.M. Best's financial strength rating of "A " or better and a financial size rating of "VII " or better. Verification of Coverage Contractor shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by the City before work commences . The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements , required by these specifications, at any time. Subcontractors Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13. Surety Bonds As required by Contract and described in the Contract Documents. The Payment and Performance Bonds shall be in a sum equal to the Contract Price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the Contract is for longer than one year a Maintenance Bond equal to 10% of the Contract Price is required. Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California. Special Risks or Circumstances City reserves the right to modify these requirements, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances . Insuranc e Requirements for Construction Contracts -$45 ,000 Version : Nov 201 7 3 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDNYYY) ~ 05/08/2018 THIS CERTIFICATE IS ISSUED AS A MATIER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed . If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Viktoria Cordes NAME: RCU Insurance Services ~~8NJ0 Extl: (707) 576-5082 I FAX (A/C, Nol: (707) 522-6851 3033 Cleveland Ave Suite 400 E-MAIL vcordes@redwoodcu.org ADDRESS : INSURER(S) AFFORDING COVERAGE NAIC# Santa Rosa CA 95403 INSURER A: Sentinel Insurance Company LTD 11000 INSURED INSURER B: Amtrust International Underwriters Ltd. Dolphin Design INSURERC : 165 Cristich Lane INSURER D: Suite B INSURER E: Campbell CA 95008 INSURER F: COVERAGES CERTIFICATE NUMBER: CL 185801398 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED . NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS , EXCLUSIONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSD WVD POLICY NUMBER !MM/DDNYYYl IMMIDDNYYYl LIMITS ./ X COMMERCIAL GENERAL LIABILITY 2,000,000 . EACH OCCURRENCE $ -D CLAIMS-MADE [81 OCCUR Ul"\IYll"\\.:tC I U l"\CI~ CU PREMISES (Ea occurrence) $ 1,000,000 - MED EXP (Any one person) s 10,000 -A y 57SBARG0262 05/02/2018 05/02/2019 PERSON A L & ADV INJURY $ 2,000,000 t / -V ~'LAGGRED L~~~-A PPDER GENERAL AGGREGATE $ 4,000,000 POLICY JECT LOG PRODUCTS -COMP/OP AGG $ 4,000,000 OTHER : $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ /Ea accident\ -ANY AUTO BODILY INJURY (Per person) $ -OWNED -SCHEDULED BODILY INJURY (Per accident) $ -AUTOS ONLY -A UTOS HIRED NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY /Per accidentl -- $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ - EXCESS LIAS CLAIMS-MADE AGGREGATE $ DED I I RETENTION $ $ WORKERS COMPENSATION XI PER I I OTH- AND EMPLOYERS' LIABILITY STATUTE ER YIN V B ANY PROPRIETOR/PARTNER/EXECU TIVE ~ WCA5389975 05/03/2018 05/03/2019 E.L. EACH ACC IDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? NIA (Mandatory in NH) E.L. DISEASE -EA EMPLOYEE s 1,000,000 If yes. describe under 1 ,000,000 DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Certificate holder is listed as an Additional Insured with respects all operations of the Named Insured . CERTIFICATE HOLDER City of Cupertino 10300 Torre Avenue Cupertino CA 95014-3255 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS . AUTHORIZED REPRESENTATIVE / © 1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 57SBARG0262 Dolphin Design V COMMERCIAL GENERAL LIABILITY CG 201010 01 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED-OWNERS, LESSEES OR CONTRACTORS -SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following : COMMERCIAL GENERAL LIABILITY COVERAGE PART City of Cupertino Its officers , officials, employees and volunteers 10300 Torre Avenue Cupertino, CA 95014-3255 SCHEDULE If no entry appears above , information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A Section II -Who Is an Insured is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured . B. With respect to the insurance afforded to these additional insureds, the following exclusion is added : 2. Exclusions This insurance does not apply to "bodily injury" or "property damage" occurring after: CG 20101001 © ISO Properties, Inc ., 2000 (1 ) All work, including materials , parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the site of the covered operations has been completed; or (2) That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Page 1 of 1 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ~ 04/19/2018 THIS CERTIFICATE IS ISSUED AS A MATIER 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($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT : If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: PHONE I FAX /AJC No Ext\: /AJC Nol: NSS INSURANCE SERVICES E-MAIL ADDRESS : 1100 LOCUST ST INSURERISl AFFORDING COVERAGE NAIC# DES MOINES IA 50391-1100 INSURER A : NATIONWIDE INSURANCE COMPANY OF AMERlt 25453 INSURED INSURER B : INSURER C : DOLPHIN DESIGN INSURER D : 165 CRISTICH LN STE B INSURER E: CAMPBELL CA 95008-5409 I NSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERT IFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLIC Y PERIOD INDICATED . NOTWITHSTANDING ANY REQUIREMENT , TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THI S CER TIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXC LUSIONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE , .. en wun POLICY NUMBER IMM /DD/YYYYl /MM /DD/YYYYl LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ f--D CLAIMS-MADE D OCCUR DAMAGE TO RENTED PREMISES /Ea occurrence l $ MED EXP (Any one person) $ - PERSONAL & ADV IN JURY $ - GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ =i D PRO· D Loc PRODUCTS· COMP/OP AGG $ POLICY JECT OTHER: $ AUTOMOBILE LIABILITY COMBI NED S INGLE LIMIT $ 1.000.000 V IEa acciden tf f-- ANY AUTO BODIL Y INJURY (Per pe rson) $ -ALL OWNED x SC HEDULED A X ACP BAZ 3008726960 04/18/2 018 04/18 /2 019 BODILY INJURY (Per accident) $ -AUTOS X AUTOS X NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTOS /Per accident) $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ - EXCESS LIAB CLA IM S-MADE AGGREGATE $ OED I I RETENTION $ $ WORKERS COMPENSATION I PER I I OTH- AND EMPLOYERS' LIABILITY STATUTE ER Y/N ANYPROPRIETOR/PARTNER/EXECUTIVE D N/A E .L. EACH ACC IDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE · EA EMPLOYEE $ lf yes . describe un de r DESCRIPTION OF OPERATIONS below E.L. DISEASE· POLICY LIMIT $ DESCRIPTION OF OPERATIONS/ LOCATIONS / VEHICLES (ACORD 101 , Additional Remarks Schedule, may be attached if more space is required) See attached Acord 101 CERTIF ICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF , NOTICE WILL BE DELIVERE D IN ACCORDANCE WITH THE POLICY PROVISIONS. The City of Cupertino AUTHORIZED REPRESENTATIVE 10300 Torre Ave Jaclyn Ave lar Cup e rtino CA 95008 I © 1988-2 014 ACORD CORPORATION. All rights reserved. ACORD 25 (201 4 /0 1) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: -------------------- LO C #: -------- ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY NAMED INSURED NSS IN SURANCE SERVICES DOLPHIN DESIGN POLICY NUMBER 165 CRIST ICH LN STE B ACP 3008726960 CAMPBELL CA 95008-5409 CARRIER I NAIC CODE EFFECTIVE DATE : 04/18/2018 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: Certificate Of Liability Insurance Hired and Non-owned Auto coverage is provided for under the above li sted Business Auto po li cy A¢?? $1,000,000 Combined Single Limit. The City of Cupertino, its City Council , officers, officia ls, employees, agents, servants and vo lunteers are to be cove red as addit ional insureds on the Business Auto policy with respect to li ability arising out of the Services performed by or on beha lf of Contractor. 2016 FORD T150 TRANSIT COMMERC IAL VAN VIN: 1FTYE1CG5GKA11805 2015 TOYOTA TUNDRA 4X4 CREWMAX SR5 5 .7 VB V IN: 5TFDY5F11FX421507 ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Policy number: ACP BAZ 3008726960 COMMERCIAL AUTO AC 70 04 NH 09 17 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESS AUTO PROTECTION -PLUS This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM SUMMARY OF COVERAGES A. Effect of This Endorsement B. Temporary Substitute Autos -Physical Damage Coverage C. Employees as Insureds -Nonowned Autos D . Additional Insured b}' Contract, Permit or Agreement E. Prejudgment Interest Coverage F. Personal Effects and Property of Others Extension G. Expanded Towing Coverage H. Expanded Transportation Expense I. Extra Expense -Stolen Autos J . Emergency Lockout K. Transfer Of Rights Of Recovery Against Others To Us L. Section IV -Business Auto Conditions -Notice of Knowledge of Occurrence AC 70 04 NH 09 17 Includes copyrighted material of Insurance Services Office, Inc. with its permission Page 1 of 3 A. EFFECT OF THIS ENDORSEMENT Coverage provided under this policy is modified by the provisions of this endorsement. If there is any conflict between the provisions of this en- dorsement and the provision(s) of any state-spe- cific endorsement also attached to this policy, then the provision(s) of the state-specific en- dorsement shall apply instead of the provisions of this endorsement that are in conflict, but only to the extent of the conflict, and only to the extent necessary to bring such provisions into conform- ance with the state requirement(s) contained in the provision( s) of the state-specific endorse- ment. B. TEMPORARY SUBSTITUTE AUTOS PHYSICAL DAMAGE COVERAGE The following is added to paragraph C. Certain Trailers, Mobile Equipment And Temporary Sub- stitute Autos of the -COVERED AUTOS SECTION: If Physical Damage Coverage is provided by this Coverage Form, the following types of vehicles are also covered "autos" for Physical Damage Coverage: Any "auto" you do not own while used with the permission of its owner as a temporary substitute for a covered "auto" you own that is out of service because of its: a. Breakdown; b. Repair; c. Servicing ; d. "Loss"; or e. Destruction The coverage that applies is the same as the coverage provided for the vehicle being re- placed. C. EMPLOYEES AS INSUREDS -NONOWNED AUTOS The following is added to paragraph A.1. Who Is An Insured of SECTION II -COVERED AUTOS LIABILITY COVERAGE: d. 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 af- fairs . D. ADDITIONAL INSURED PERMIT OR AGREEMENT CONTRACT, 'Any person or organization that you are ~uired to name as an additional insured written contract or agreement that is executed or signed by you prior to a "bodily injury'' or "property damage" occurrence is an "insured" for Covered Autos Liability Coverage . How- ever, with respect to covered "autos", such per- son or organization is an insured only to the extent that person or organization qualifies as an "insured" under A. 1. Who is an Insured ot SECTION II -COVERED AUTOS LIABILITY COVERAGE. If specifically required by the written contract or agreement referenced in the paragraph above, any coverage provided by this endorsement to an additional insured shall be primary and any other valid and collectible insurance avail- able to the additional insured shall be non-con- tributory with this insurance. If the written con- tract does not require this coverage to be pri- mary and the additional insured's coverage to be non-contributory, then this insurance will be excess over any other valid and collectible insur- ance available to the additional insured. However, this provision does not apply to Cov- ered Autos Liability Coverage provided by this Policy for any covered "auto" that you do not own . E. PREJUDGMENT INTEREST COVERAGE The following paragraph is added to SECTION II -COVERED AUTOS LIABILITY COVERAGE, Supplementary Payments under item : (7) Prejudgment interest awarded against the "insured" on that part of the judgment we pay. If we make an offer to pay the applica- ble limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer . F. PERSONAL EFFECTS AND PROPERTY OF OTHERS EXTENSION 1. The. Care, Custody or Control Exclusion of the SECTION II -COVERED AUTOS LIABILITY COVERAGE, does not apply to "property damage" to property, other than your property , up to an amount not exceeding $250 in any one "accident". Coverage is ex- cess over any other valid and collectible in- surance . 2. The following paragraph is added to . Cover- age Extensions of SECTION Ill -PHYSICAL DAMAGE COVERAGE: c. We will pay up to $500 for your property that is lost or damaged as a result of a covered "loss ", without applying a de- ductible. Coverage is excess over any other valid and collectible insurance . Page 2 of 3 Includes copyrighted material of Insurance Services Office, Inc. AC 70 04 NH 09 17 with its permission G. EXPANDED TOWING COVERAGE 1 . We will pay up to: a. $100 for a covered "auto" you own of the private passenger type, or b. $250 for a covered "auto" you own that is not of the private passenger type, for towing and labor costs incurred each time the covered "auto" is disabled. However, the labor must be performed at the place of disa- blement. 2. This coverage applies only for an "auto" cov- ered on this policy for Comprehensive or Specified Causes of Loss Coverage and Col- lision Coverages. 3. Payment applies in addition to the otherwise applicable amount of each coverage you have on a covered "auto ". H. EXPANDED TRANSPORTATION EXPENSE Paragraph A.4.a . of SECTION Ill -PHYSICAL DAMAGE COVERAGE SECTION is replaced by the following : We will pay up to $50 per day to a max imum of $1000 for temporary transportation expense in- curred by you because of the total theft of a cov- ered "auto" of the private passenger type . We will only pay for those covered "autos" for which you carry Comprehensive or Specified Causes of Loss Coverage. We will pay for temporary trans - portation expenses incurred during the period be - ginning 48 hours after the theft and ending, re- gardless of the policy's expiration, when the cov- ered "auto" is returned to use or we pay for its "loss" I. EXTRA EXPENSE -STOLEN AUTOS The follow paragraph is added to Section A.4. of SECTION Ill PHYSICAL DAMAGE COVERAGE: c. We will pay for up to $5,000 for the expense of returning a stolen covered "auto' to you when there is no physical damage to the ve- hicle as a result of the theft . We will pay only for those covered "autos" for which you carry Comprehensive or Specified Causes of Loss Coverage. J. EMERGENCY LOCKOUT PRIVATE PASSENGER VEHICLES We will reimburse you up to $75 for reasonable expense incurred for the services of a locksmith to gain entry into your covered "auto " of the pri - vate passenger type subject to these provisions: K. AC 70 04 NH 09 17 1. Your door key or key entry pad has been lost, stolen or locked in your covered "auto " and you are unable to enter such "auto", or 2 . Your key or key entry pad has been lost or sto len and you have changed the lock to prevent an unauthorized entry; and 3. Original copies of receipts for services of a locksmith must be provided before re- imbursement is payable . TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US The following is added to the Transfer Of Rights Of Recovery Against Others To Us Condition : We waive any right of recovery we may have against any person or organization to the ex- tent required of you by a written contract ex- ecuted prior to any "acciden t" because of payments we make for damages under this coverage form. L. NOTICE OF AND KNOWLEDGE OF OCCURRENCE SECTION IV -BUSINESS AUTO CONDITIONS , Paragraph A is amended as follows: 6 . NOTICE OF AND KNOWLEDGE OF OCCURRENCE a. Your obligation in the Duties in the Event of Accident, Claim, Suit or Loss Condition relative to notification requirements ap- plies only when the "accident" or "loss" is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership; (3) A member, if you are a limited liability company; or (4) An executive officer or insurance manager, if you are a corporation . b. Your obligation in the . Duties in the Event of Accident, Claim, Suit or Loss Condition relative to providing us with documents concerning a claim or "suit" will not be considered breached unless the breach occurs after such c laim or "su it" is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership; (3) A member, if you are a limited liability company; or (4) An executive officer or insurance manager, if you are a corporation . AC 70 04 NH 09 17 Includes copyrighted material of Insurance Services Office, Inc ., with its permission Page 3 of 3 AGREEMENT BETWEEN THE CITY OF CUPERTINO AND DOLPHIN DESIGN FOR CITY OF CUPERTINO AQUARIUM MAINTENANCE THIS AGREEMENT, for reference dated January 1, 2015, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and , a Dolphin Design, a California partnership whose address is 165 Cristich Lane, Suite B, Campbell, CA 95008_hereinafter called the Contractor, and is made with reference to the following: RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. City and Contractor desire to enter into an agreement for Aquarium Maintenance at the City of Cupertino Library, in accordance with the City of Cupertino Aquarium Maintenance-Scope of Work & Requirements document dated November 24, 2014. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The Contractor shall begin work January 1, 2015 and shall diligently prosecute the work for a three year term that may be extended up for up to two, one-year terms for a total of five years. 2. SERVICES TO BE PERFORMED: Contractor agrees, at its own cost and expense, to furnish all labor, tools, equipment, materials, except as otherwise specified, and to do all work strictly in accordance with City of Cupertino Aquarium Maintenance -Scope of Work & Requirements document dated November 24, 2014 hereby referred to and expressly made a part hereof with the Page 1of11 Contractor Agreement same force and effect as if the same were fully incorporated herein. 3. COMPENSATION TO CONTRACTOR: Contractor shall be compensated for services performed pursuant to this Agreement in the amount and manner set forth in Contractor's proposal, which is attached hereto as Exhibit "A" and incorporated herein by this reference. Payment will be made in the same manner that claims of a like character are paid by the City, with checks drawn on the treasury of the City, to be taken from the general fund. 4. TIME IS OF THE ESSENCE: Contractor and City agree that time is of the essence regarding the performance of this Agreement. 5. STANDARD OF CARE: Contractor agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 6. INDEPENDENT PARTIES: City and Contractor intend that the relationship between them created by this Agreement is that of employer-independent contractor. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Contractor's services. None of the benefits provided by City to its employees, including but not limited to unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Contractor, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Contractor. Payments of the above items, if required, are the responsibility of Contractor. 7. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Contractor assumes any and all responsibility for verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Page 2of11 Contractor Agreement Contractor shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Contractor. 8. NON-DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer/employee conduct, Contractor agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Contractor or Contractor's employee on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Contractor agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 9. HOLD HARMLESS: Contractor shall, to the fullest extent allowed by law, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liability, claims, stop notices, actions, causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage to property or other liability of any nature, arising out of, pertaining to, or related to the performance of this Agreement by Contractor or Contractor's employees, officers, officials, agents or independent contractors. Contractor shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in these sections 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. If Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. Page 3of11 Contractor Agreement 10. INSURANCE: On or before the commencement of the terms of this Agreement, Contractor shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs lOA, B, C and D. Such certificates, which do not limit Contractor's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, "Attention: City Manager." It is agreed that Contractor shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Contractor shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $1,000,000 each occurrence $2,000,000 aggregate -all other Property Damage: $500,000 each occurrence $1,000,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of $2,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Contractor Agreement Comprehensive automobile liability coverage in the following minimum limits: Bodily injury: $500,000 each occurrence Property Damage: $500,000 each occurrence Page 4of11 or Combined Single Limit: $tOOO,OOO each occurrence B. SUBROGATION WAIVER: Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Contractor at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Contractor's name or as an agent of the Contractor and shall be compensated by the Contractor for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and comm1ss10ns, officers, employees, and volunteers shall be named as an additional insured under all insurance coverages, except worker's compensation insurance. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Contractor. Contractor is advised to consult Contractor's insurance broker to determine adequate coverage for Contractor. 11. BONDS: Contractor shall furnish the following bonds from a bonding company acceptable to the City Attorney: A. Faithful Performance: A bond in the amount of four months of the total annual agreement price Page 5of11 Contractor Agreement guaranteeing the faithful performance of this contract, and 12. PROHIBITION AGAINST TRANSFERS: 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 without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Contractor from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Contractor. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Contractor is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 13. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names are listed in Contractor's bid shall be used in the performance of this Agreement. Requests for additional subcontracting shall be submitted in writing, describing the scope of work to be subcontracted and the name of the proposed subcontractor. Such request shall set forth the total price or hourly rates used in preparing estimated costs for the subcontractor's services. Approval of the subcontractor may, at the option of City, be issued in the form of a Work Order. In the event that Contractor employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general and automobile liability insurance in reasonable conformity to the insurance carried by Contractor. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 14. PERMITS AND LICENSES: Contractor, at its sole expense, shall obtain and maintain during the term of this Agreement all appropriate permits, certificates and licenses, including a City Business Page 6of11 Contractor Agreement License, that may be required in connection with the performance of services hereunder. 15. REPORTS: Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Contractor pursuant to or in connection with this Agreement shall be the exclusive property of City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. No report, information nor other data given to or prepared or assembled by Contractor pursuant to this Agreement shall be made available to any individual or organization by Contractor without prior approval by City. Contractor shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. RECORDS: Contractor shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Contractor shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Contractor shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. 17. NOTICES: All notices, demands, requests or approvals to be given under this Agreement Page 7of11 Contractor Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Contractor to City shall be addressed to City at: City of Cupertino 10300 Torre Avenue Cupertino CA 95014 Attention: Roger Lee All notices, demands, requests, or approvals from City to Contractor shall be addressed to Contractor at: Dolphin Design 165 Christich Lane, Suite B Campbell, CA 95008 18. URBAN RUNOFF MANAGEMENT: The Contractor shall avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, contractor shall use as little as necessary. Contractor shall take all steps necessary to keep wash water out of the streets, gutters and storm drains. The Contractor shall develop and implement erosion and sediment control to prevent pollution of storm drains. Such control includes but is not limited to: A. Use storm drain inlet protection devices such as sand bag barriers, filter fabric fences, block and gravel filters. (Block storm drain inlets prior to the start of the rainy season (October 15), in site de-watering activities and saw-cutting activities; shovel or vacuum saw-cut slurry and remove from the site). B. Cover exposed piles of soil or construction material with plastic sheeting. All construction materials must be stored in containers. C. Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain as well as at the end of the each work day. At the completion of the project, the street shall be washed and the wash water shall be collected and disposed of offsite in an appropriate location. D. After breaking old pavement, Contractor shall remove all debris to avoid contact with rainfall or runoff. E. Contractor shall maintain a clean work area by removing trash, litter, and debris at the end of each work day. Contractor shall also clean up any leaks, drips, and Page 8of11 Contractor Agreement other spills as they occur. The objective is to ensure that the City and County of Santa Clara County-Wide Clean Water Program is adequately enforced. These controls should be implemented prior to the start of construction, up-graded as required, maintained during construction phases to provide adequate protection, and removed at the end of construction. These recommendations are intended to be used in conjunction with the States Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, Section 7.1.01 of the Standard Specifications and any other appropriate documents on storm water quality controls for construction. Failure to comply with this program will result in the issuance of noncompliance notices, citations, project stop orders or fines. The fine for noncompliance of the above program is two hundred and fifty dollars ($250.00) per occurrence per day. The State under the Federal Clean Water Act can also impose a fine on the contractor, pursuant to Cal. Water Code '13385. 19. TERMINATION: In the event Contractor fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Contractor shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days after receipt by Contractor from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Contractor written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Contractor as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 1. COMPLIANCES: Contractor shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 21. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws Page 9of11 Contractor Agreement of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 22. ADVERTISEMENT: Contractor shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any l<ind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 23. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein, shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 34. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 25. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 46. CAPTIONS: The captions 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. Page 10of11 Contractor Agreement P.O. No.: ?-ol ~ -lb L{ IN WITNESS \!\THEREOF, the parties have caused the Agreement to be executed on the day and year first above written. CONTRACTOR Dolphin Design By A Name Oena,o J/evJ.rtt I Titie/?ctrfr,c r Date t}1/Jr Contractor Agreement CITY OF CUPERTINO A Municipal Corporation ~ By~.·~ Thmnord:Director of Public Works Date 7fufcs RECOMMENDED FOR APPROVAL: By~b-~ ' Title ~;.r;JfwY j.e'.!tJOit I ~ tf}~ ,. APPROVED AS TO FORM: By_t--r"""""''-"""~~.,._--~~~ tL. Caro Korade, Oty Attorney ATTEST: Gau..,..,,~jt c/(3Jur Grace Schmidt, City Clerk Contract Ammmt: rJ ;!!ff 2.z~ AccountNo.: lDO -t'{J]·-0:16 70o-7Q)_ Page 11of11 City of Cupertino Aquarium Maintenance -Proposal Schedule All Proposal items, including lump sums and unit prices, must be filled in completely. Quote in figures only, unless words are specifically requested. l.f So $5/fDO Check and perform daily service including feeding bo..il 30 it.foo f>'ig!P Check and perfor.m weekly service 4 :tis !>3(j.) Filtration, pump and other eguipment maintenance as needed and ih accordance with \j\ke.\<~ t..( ~3o0 manufacturer recommendations $3bc0 Water Changes Wc.cJ<!:; y ~s~~ j; rd 1·20 Weekly Report \1Je11.-I~ ,.., $1-S SJoo Staff assistance tJ./Po r6 rf Rescheduling Daily Service rJ/A ff f!i Maintain required number and size of fish and/or rJ/A :5115 t;1-loo invertebrates Meeting all other scope of work requirements AJ/A -:r 1.1-S '1-11-c.X) December 5, 2014 City of Cupertino Aquarium Maintenance -Scope of Work & Requirements Overview: The City of Cupertino seeks proposals from experienced aquarium maintenance providers. The following is a summary of the tasks to be included in the daily maintenance of the 3800 gallon salt water aquarium and associated pumping I filtration/ chemical feed equipment at the City of Cupertino Library-10800 Torre Avenue, Cupertino, CA 95014. The contractor shall perform all regular aquarium maintenance and feeding of fish seven days a week, between 7:00am and S:OOpm Monday to Sunday and on scheduled Cupertino Library holidays. A minimum number of fish and invertebrates, as determined in mandatory pre-proposal meeting on December 2, 2014 at 9:00am are to be supplied and maintained by the contractor. It is anticipated that the existing fish and invertebrates will remain unless a more complimentary number and diversity of fish and invertebrates are determined at the mandatory pre-proposal meeting. Proposals are due before 3:00 p.m. Thursday, December 11, 2014 (See Submittal Instructions below). Regular Service: 1. Exterior and interior cleaning of the aquarium. Interior cleaning shall include all surfaces (acrylic, fabricated corals, trees, grasses, etc.) and bottom substrate. Cleaning may periodically require a swimmer to enter to scrub the surfaces. All surfaces shall be cleaned with appropriate tools to prevent damage to the acrylic and all structures. 2. Check and perform daily: a. Inspect all plumbing, filtration and disinfection systems for proper optimal operation. Timely repair to industry standards of all leaks found. b.lnsure aquarium is filled to the appropriate water level c. Feeding of fish and invertebrates d. Removal of any deceased animals. Contractor must note species, date, replacement date in the weekly report. e. Test water quality when fish or invertebrate health has declined for the parameters of: salinity, pH, alkalinity, calcium, copper (if applicable), ammonia, nitrates, nitrites, phosphates and temperature. f. Visual assessment of all fish and invertebrates. Any abnormalities are to be noted to City designated staff. g. Cleaning of aquarium interior as necessary and exterior of aquarium viewing area. 3. Check and perform weekly: a. Test water quality when fish or invertebrate health is stable for the parameters of salinity, pH, alkalinity, calcium, copper (if applicable), ammonia, nitrates, nitrites, phosphates and temperature. b. Monitor additional parameters to maintain healthy fish and living conditions as needed. November 24, 2014 c. Maintain a minimum number of live animals. Refer to "Supplies" below for specific requirements. 4. Filtration, disinfection, pump and other equipment maintenance as needed and in accordance with manufacturer recommendations: a. Replacement of ion-exchange resins and activated carbon b. Lubrication or sealing of parts, a-rings, etc. c. Cleaning and/or replacement of filter components d. Cleaning of protein skimmers e. Replacement of filter material in self-contained units f. Any additional cleaning of filtration equipment, including UV and RO filters. g. City shall be notified immediately upon changes or malfunctions in filtration equipment. h. Routine maintenance of circulation, chemical feed pumps and temperature control equipment 5. Water Changes a. Water changes shall occur as needed to maintain healthy aquarium environment. 6. Weekly Report: Contractor will provide a weekly written summary report of observations (e.g., tank conditions, animal health and mortality) to the City. Attachment A is a sample summary report that contains the minimum items to report. Contractor may submit a different summary report in the first month of service for City approval as long as it meets or exceeds the items identified in Attachment A. 7. Staff assistance Contractor shall be available by phone (at no charge) during regular business hours (Mon-Sun 7am - Spm) for consultation with designated City staff to resolve any problems that occur between daily maintenance visits. 8. Rescheduling Daily Service If for any reason, daily service is not completed on a given day, the contractor will reschedule the service for that day in coordination with designated City staff. Failure to responsibly and/or timely perform any of these service requirements may cause liquidated damages of up to $75 per day to be levied. Emergency Service: 1. Minor issues and repairs-emergency services shall be provided and included in the monthly agreed upon amount in the agreement. This would include, but not be limited to, any issues arising from leaky valves, pumps, or filters. Typically, any type of repair that is not critical to the function of the system and would require a minimum of time. Response time shall be within 24 hours ofthe contractor observing the issue or within 24 hours upon receiving a call from designated staff. 2. Major issues and repairs -contractor to timely notify City of any needed major repairs or replacements that exceed $500. If the health of fish and invertebrates are at immediate risk, the November 24, 2014 contractor shall timely respond and immediately notify the City with specifics of the issue, proposed action and estimate of cost. City approval is required prior to proceeding with corrective work. The City reserves the right to obtain quotes from other contractors and to use an outside contractor for the repair or replacement at City discretion. Regardless of whether the City authorizes repair with the current contractor or an outside contractor, the current contractor may be required to timely relocate the fish and invertebrates to another location while repairs are completed. No additional compensation will be paid to the current contractor if this action is required. Supplies: Contractor shall include in their proposal the ideal number of complimentary and diverse fish and invertebrates that can be continuously sustained by the aquarium. Contractor shall include the proposed number, size and species of fish I invertebrates to be maintained over the term of the agreement. The existing species, number and size of fish/ invertebrates that are in aquarium as of December 2014 shall be documented in writing and submitted by the contractor to the City. The ideal number of complimentary and diverse fish and invertebrates that can be continuously sustained by the aquarium will be determined at the mandatory pre-proposal meeting on December 2, 2014 at 9:00am. Existing fish and invertebrates are to remain. Contractor will purchase additional fish, invertebrates, aquarium supplies, including salt, water conditioners, medications and fish food. Contractor is responsible for replacement of fish and/or invertebrates that become deceased or that may become too large to maintain the ideal number of complimentary and diversity of animals as determined at the mandatory pre-proposal meeting. Replacement is to occur within one week. The City will be responsible for replacement of fish and/or invertebrates in the event of catastrophic power failure or aquarium structural failure not caused by the contractor. Feeding of fish to occur daily. Fish and invertebrates are the property of the City. Replacement & Repairs: Prior to the start of this agreement, current condition of all equipment shall be documented. Any corrective repairs or replacements that may be needed prior to the start of this agreement will not be the responsibility of the contractor. Upon the start of this agreement, timely replacement of minor equipment, wearable items including but not limited to light bulbs or any other expendable item valued at less than $500 each shall be the responsibility of the contractor. Items valued at $500 or more that have failed or are suspect to fail shall be immediately reported by Contractor to designated City staff. If upon inspection by designated City staff it is agreed that the item requires replacement, contractor shall provide a written proposal that must be approved in writing by November 24, 2014 the City to complete the work. The City reserves the right to purchase items elsewhere and to have installation done by other contractors, and to inspect and/or refuse delivery of such items based on quality or health. Material Safety and Data Sheets: Contractor shall maintain onsite current material safety and data sheets (MSDS) for all chemicals provided. All Federal, State and County requirements are to continuously followed. Background Check and Security Clearance: All personnel assigned to provide services to the City of Cupertino for aquarium maintenance must have successfully passed a background check. The contractor shall provide for fingerprinting each owner/ employee and shall complete a fingerprint identification card which shall be forwarded with five (5) working days to the California Department of Justice (DOJ). The contractor shall not employ any person who provides aquarium maintenance services under this agreement who has been convicted of a drug offense, sex offense or a felony, or is otherwise prohibited from working with children. The contractor shall maintain records of fingerprint identification during the term of this agreement and five (5) years thereafter. Such records shall be available to the City for review upon request of the City. Minimum Qualifications: Minimum of 3 years of professional experience maintaining large aquarium systems (i.e., capacity 1000 gallons or more). Demonstrated experience shall include the ability to: 1. Maintain healthy water chemistry and livestock; 2. Diagnose and manage water quality problems and livestock illness/disease; 3. Diagnose problems and perform repairs to aquarium equipment (e.g., pumps, filters, valves, plumbing, fluidized beds, protein skimmers, reverse osmosis system); 4. Have, or have access to, a minimum of 1000 gallons of aquaria for quarantine/temporary housing of fish and invertebrates during unusual circumstances (i.e. fumigation, extended power outage, extensive aquarium repair, etc.) A minimum of five professional references must be provided that can verify professional experience. Contractor selected shall be able to meet the requirements of the City of Cupertino standard form _Contractor Agreement (Agreement) and have the ability to commence operations on January 1, 2015. Qualifications Summary: Contractor shall provide a written summary detailing their experience and meeting the minimum qualification described above. This summary shall include: •Summary of work performed and contact information for a minimum of 3 clients that own large aquariums (i.e.,<". 1000 gallons). November 24, 2014 • Letters of recommendation and contact information for a minimum 3 references from clients having large aquariums (i.e.,;::: 1000 gallons). • Discussion of the contractors experience with assessment and diagnosing water quality, disease, and species interaction issues. •Discussion of the contractors experience assessing and diagnosing mechanical and plumbing problems. • Explanation of quarantine/temporary housing facilities or arrangements. Agreement Term: With satisfactory performance by the contractor, the agreement term will be three (3) years from the start date of the agreement. The City shall retain the option to extend the term of the agreement for an additional two (2) years, for a possible total of five (5) years. Contractor performance will be documented weekly by the City Facility Supervisor or his/her designee, with deficiencies communicated to the contractor. An annual review of contractor performance will be completed by March 31st of each year. Satisfactory performance will be achieved if annual liquidated damages are less than $300. Any such renewal after the first three {3} years shall be accomplished by the City providing a written notice of renewal to the contractor at least 30 days prior to the expiration of the term. Any such renewal shall contain the same provisions as the original agreement, including an increase of decrease in compensation paid to the contractor. Any increase or decrease in the agreement prices shall be based on the annual percentage change in the Consumer Price Index {CPI) as of June of the year the adjustment is being made. The CPI shall be the San Francisco/Oakland/San Jose Consumer Price Index fall all urban wage earners. There will be no CPI adjustment during the first year of the agreement. The City shall have the authority to suspend or cancel this agreement for cause or no cause upon thirty (30) days advance written notice. Mandatory Pre-Proposal Meeting: On December 2, 2014 at 9:00am, a mandatory pre-proposal meeting will be held at the Cupertino Library Aquarium at 10800 Torre Avenue, Cupertino, CA 95014. Only submittals from contractors attending the mandatory pre-proposal meeting and signing the sign in sheet will be considered eligible. Submittal Instructions and Requirements: Sealed proposals must be delivered to Cupertino City Hall, Attention: Roger Lee, 10300 Torre Avenue no later than THURSDAY, December 11, 2014 at 3:00 P.M. local time. Submittal packages must be plainly marked on the outside: PROPOSAL FOR AQUARIUM MAINTENANCE SERVICES. Faxed or electronic bids will not be accepted. Questions concerning scope of work and proposal requirements are to be directed to Roger Lee, Assistant Director of Public Works at (408} 777-3350, rogerl@cupertino.org. The contractor shall submit the completed City of Cupertino Aquarium Maintenance -Bid Schedule with an original signature by an authorized agent of the company. November 24, 2014 Selection Process: The City of Cupertino will award the aquarium maintenance agreement to the lowest cost and responsive bidder in accordance with this Scope of Work and Requirements. Responsiveness will be evaluated on thoroughness of meeting proposal requirements. To be considered responsive, contractor shall attend the mandatory pre-proposal meeting, follow all submittal instruction requirements and include at a minimum the following in their proposal: 1. Completion of City of Cupertino Aquarium Maintenance -Bid Schedule 2. Submission of the requirements identified in the Minimum Qualifications section of this document. 3. Submission of the requirements identified in the Qualification Summary section of this document. 4. Signed company letter stating the number, species and sizes of fish and invertebrates that will be continuously sustained as determined at the mandatory pre-proposal meeting, including the inventory of animals by species, number and size in the aquarium as of December 2014. The successful contractor determined to be the lowest cost and responsive bidder will be required to meet the requirements of the City of Cupertino standard form Contractor Agreement (Agreement). Upon meeting all requirements of the Agreement, contractor will be required to execute the Agreement with no changes prior to being authorized to begin services. It is anticipated that an agreement will be executed and services will begin January 1, 2015. The City of Cupertino reserves the right to reject any or all proposals with or without cause, to waive technical errors and informalities, or to accept the proposal which in its judgment best serves the public interest. November 24, 2014 City of Cupertino Aquarium Maintenance -Proposal Schedule All Proposal items, including lump sums and unit prices, must be filled in completely. Quote in figures only, unless words are specifically requested. EST UNIT EXTENDED ITEM DESCRIPTION UNIT PRICE PER TOTAL PER QTY MONTH YEAR A. Regular Aquarium Service (includes all items as detailed below and per the scope Per Month I of work and requirements) Exterior and interior cleaning of the aquarium. Check and perform daily service Check and perform weekly service Filtration, pump and other equipment maintenance as needed and in accordance with manufacturer recommendations Water Changes Weekly Report Staff assistance Rescheduling Daily Service Maintain required number and size of fish and/or invertebrates Meeting all other scope of work requirements TOTAL (Words) November 24, 2014 City of Cupertino Aquarium Maintenance -Attachment A Sample Weekly Aquarium Maintenance Report Report Date _____ _ Interior Cleaned Exterior Cleaned ---- Water Quality Salinity PSU pH ___ _ Alkalinity ____ mg/L calcium mg/L Copper mg/L Ammonia mg/L Nitrates mg/L Nit rites mg/L Phosphates mg/L Temperature °F Other Water Quality Issues Noted:--------------------- Water Level Topped-off __ Water Change __ gallons or __ % volume Animal Health Notes: -------------------------- Medication and dose supplied to tank -------------------- Filtration (indicate cleaned, replaced, or other) Ion-exchange resin _______ _ Activated carbon -------- Canister Filters -------- F ii tr at ion Socks -------- Protein skimmer -------- UV System _______ _ RO System _______ _ Filter material -------- 1 s sues Noted: ---------------------------~ November 24, 2014 Mechanical Pumps __________ _ Filters ----------- Va 1 v es ----------- Skimmer ----------- 1 n take -----------RO System __________ _ Issues Noted: ----------------------------~ November 24, 2014 PUBLIC WORKS DEPARTMENT Timm Borden, Director CITY HALL CUPERTINO 10300 TORRE AVENUE -CUPERTINO, CA 95014-3266 (408) 777-3354 -FAX (408) 777-3333 ADDENDUM NO. 1 CITY OF CUPERTINO AQUARIUM MAINTENANCE PROPOSAL DUE DATE: December 11, 2014 3:00P.M. ISSUED DATE: December 5, 2014 The following fish and invertebrates are to be supplied and maintained by the contractor and are hereby included in the Scope of Work & Requirements dated November 24, 2014 for the above referenced project. 1. The fish inhabiting the aquarium as of December 2014 are as follows: Large fish (14): (5) Sailfin Tangs (3) Unicom Tangs (1) Vlamingi Tang (1) Naso Tang ( 4) Heniochus Medium fish {23): (3) Foxface Rabbitfish (3) Majestic Foxface (1) Powder Brown Tang (1) Powder Blue Tang (3) Yellow Tail Blue Tang (1) 6 Bar Angel (2) Kole Tangs (1) Convict Tang (1) Saddle Butterfly (5) Yellow Tangs (2) Scopes Tangs Small Fish (17): (10) Yellow Tail Blue Damsels (5) Blue Damsels (2) Ocellaris Clowns Page I of3 2. Contractor is to retain and maintain the majority of above fish, and replace only those that exceed the numbers detailed below or may be diseased or injured with like or similar fish. The minimum number, size and species of fish and invertebrates that the contractor are to either supply/retain are as follows: Large fish (11-14): (4-5) Sailfin Tangs (2-3} Unicorn Tangs (1) Vlamingi Tang (1) Naso Tang (3-4) Heniochus Medium fish (31-45): (5-7) Foxface Rabbitfish (4-5) Majestic Foxface (1-2) Powder Brown Tang (1-2) Powder Blue Tang (7-9) Yellow Tail Blue Tang (1-2) 6 Bar Angel (2-3) Kole Tangs (1-2) Convict Tang (l-2) Saddle Butterfly (6-8) Yellow Tangs (2-3) Scopes Tangs Small Fish (25-45): (10-16) Yellow Tail Blue Damsels (5-11) Damsels (5-8) Ocellaris Clowns (3-5) Valentini Pufferfish (2-5) Bangaii Cardinalfish Invertebrates (8-11): (8) Jumbo Hermit Crabs (0-3) Snails (0-3) Shrimp A minimum of 75 fish and inve1iebrates are to inhabit the aquarium at all times. The maximum nwnber of 115 fish and invertebrates are desired and encouraged as interactions are determined sustainable. All fish and invertebrates supplied and maintained are to be of quality meeting or exceeding similar large scale first class aquariums in the Bay area. Page 2 of3 3. Various upgrades to the aquarium may occur in the future. Contractor may be asked to provide input and propose additional costs to either complete these upgrades or to expand maintenance services as may be needed. 4. Replace City of Cupertino Aquarium Maintenance -Proposal Schedule dated November 24, 2014 with City of Cupertino Aquarium Maintenance -Proposal Schedule dated December 5, 2014. All questions regarding this project must be transmitted in writing to Roger Lee, Assistant Director of Public Works. Fax number is 408-777-3333 and email address is RogerL@cupertino.org. Please indicate receipt of this addendum on the last page of the Proposal. Failure to do so may cause rejection of your proposal. APPROVED BY: ~_/.£_ Rogers. ;f?ee Assistant Director of Public Works Page 3 of3 I ,,. .• ® CERTIFICATE OF LIABILITY INSURANCE I DATE(MM/DDIYYYY) /.'!IJ.CORD ~ ----12/29/2014 r-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 i BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED / REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. I IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Jennifer Arao NAME: SST Insurance Brokers r,,tJgN~o Ext1:707-996-1232 I FAX IA/C No1:707-996-6655 446 W Napa Street ~DMDAJ~ss:ira@sstins.com Sonoma CA 95476 INSURER(S) AFFORDING COVERAGE NAIC# INSURER A :Hartford Casualtv Insurance Comnanv /INSURED DOLPH INSURER B: I Dolphin Design INSURER C: 165 Cristich Lane, Suite B INSURER D: /Campbell CA 95008 INSURER E: INSURER F: I COVERAGES CERTIFICATE NUMBER: 799877248 REVISION NUMBER: ! THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD l 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 JS SUBJECT TO ALL THE TERMS, I EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. i!NSR ADD LSUBR POLICY EFF POLICY EXP 'LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER IMM/DD/YYYYI IMM/DDIYYYY\ LIMITS r· ~7SBARG0262 p/2/2014 5/2/2015 (' GENERAL LIABILITY EACH OCCURRENCE $1,000,000 ,_____ DAMAGE TO RENTED i x COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence) $1,000,000 -I CLAIMS-MADE ~ OCCUR I MED EXP (Any one person) $10,000 PERSONAL & ADV INJURY $1,000,000 ,_____ I GENERALAGGREGATE $2,000,000 I ~ I GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMP/OP AGG $2,000,000 'l POLICY n ~/JR-r n LOG $ I AUTOMOBILE LIABILITY LuMBINEDti>INbLt: LIMIT I Ea accident $ - ANY AUTO BODILY INJURY (Per person) $ -ALL OWNED -SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ ,_____ ~ NON-OWNED PROPERTY DAMAGE HIRED AUTOS AUTOS <Per accident\ $ ~ f---- $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ - EXCESS LIAS CLAIMS-MADE AGGREGATE $ I-· DED I I RETENTION $ $ WORKERS COMPENSATION I WC STATU-I jOTH- I AND EMPLOYERS' LIABILITY TORYLl<VllTS ER YIN ANY PROPRIETOR/PARTNER/EXECUTIVE D NIA E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L. DISEASE-EA EMPLOYEE $ If yes, describe under E.L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS below ~ I I I I DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space Is required) L CERTIFICATE HOLDER City of Cupertino 10300 Torre Avenue Cupertino CA 95014 CANCELLATION 30 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE L---~~~-"--'~~~~~~~~~~~~~~~~~~~~~~-'-~~~~~~~~~~~~~~~~~~~~~~~~~~~-' © 1988-2010 ACORD CORPORATION. All rights reserved. /\GORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD To Whom It May Concern: Dolphin Design is not required to carry workers' compensation insurance because we only employ independent contractors. Genaro Hendry-Partner 165 Cristich Lane Ste B, Campbell CA, 95008 P: 408-369-9992 F: 408-369-0680 clolphindesign@sbcglobal.net I Copy .. ' MAY 11 2015 City of Cupertino Aquarium Maintenance FAITHFUL PERFORMANCE BOND BOND #:3369546 THIS FAITHFUL PERFORMANCE BOND ("Bond") is dated O 5/o8/2o15 , is in the penal sum of Eight Thousand Six Hundred and Forty dollars ($8,640) and is entered into by and between the parties listed below to ensure the faithful performance of the agreement listed below. This Bond consists of this page and the Bond Terms and Conditions, paragraphs 1 through 12, attached to this page. Any singular reference to DOLPHIN DESIGN ("Contractor"), SURETEC INSURANCE COMPANY ("Surety"), the City of Cupertino, a Municipal Corporation of the State of California ("City") or other party shall be considered plural where applicable. CONTRACTOR: DOLPHIN DESIGN Name 165 CRISTICH LANE, STE B Address CAMPB.E __ L_L~, __ CA_ 9 5 0 o._8 ____ _ City/State/Zip AGREEMENT: SURETY: SURETEC INSURANCE COMPANY Name 1330 POST OAK BLVD, STE 1100 Principal Place of Business HOUSTON, TX 77056 City/State/Zip CITY OF CUPERTINO AQUARIUM MAINTENANCE at Cupertino, California. DATED MAY 8 , 2012._ in the Amount of $_8~, _6_4_0_. _0_0 _______ (the "Penal Sum") CONTRACTOR AS PRINCIPAL c.ompany: ccfilaW .... S1gnature: __ ~_''"'-=~~~~~s--------- Name and Title: J vi....S: f: ""l Go.../'! t.. p('Ji....,,..+ne.-c /iJw{l\,e,,,r SURETY Company: (Corp. Seal) Signature: v~ ~-- Name and Title: VALERIE ABER, A)"l.'ORNEY-IN-FACT BOND TERMS AND CONDITIONS 1. Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to City for the complete and proper performance of the Agreement, which is incorporated herein by reference. 2. If Contractor completely and properly performs all of its obligations under the Agreement, Surety and Contractor shall have no obligation under this Bond. 3. If there is no City Default, Surety's obligation under this Bond shall arise after: 3.1 City has declared a Contractor Default under the Agreement pursuant to the terms of the Agreement; and 3.2 City has agreed to pay the Balance of the Agreement Sum: 3.2.1 To Surety in accordance with the terms of this Bond and the Agreement; or 3 .2.2 To a contractor selected to perform the Agreement in accordance with the terms of this Bond and the Agreement. 4. When City has satisfied the conditions of paragraph 3, Surety shall promptly (within 30 days) and at Surety's expense elect to take one of the following actions: City of Cupertino Construction Performance Bond Aquarium Maintenance 00610 -l Project No. 2014-01 4.1 Arrange for Contractor, with consent of City, to perform and complete the Agreement (but City may withhold consent, in which case the Surety must elect an option described in paragraphs 4.2, 4.3 or 4.4, below); or 4.2 Unde1iake to perform and complete the Agreement itself, through its agents or through independent contractors; provided, that Surety may not select Contractor as its agent or independent contractor without City's consent; or 4.3 Undertake to perform and complete the Agreement by obtaining bids from qualified contractors acceptable to City for a Agreement for performance and completion of the Agreement, and, upon detennination by City of the lowest responsible bidder, arrange for a Agreement to be prepared for execution by City and the contractor selected with City's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Agreement; and, if Surety's obligations defined in paragraph 6, below, exceed the Balance of the Agreement Sum, then Surety shall pay to City the amount of such excess; or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances, and, after investigation and consultation with City, determine in good faith its monetary obligation to City under paragraph 6, below, for the performance and completion of the Agreement and, as soon as practicable after the amount is detem1ined, tender payment therefor to City with full explanation of the payment's calculation. If City accepts Surety's tender under this paragraph 4.4, City may still hold Surety liable for future damages then unknown or unliquidated resulting from the Contractor Default. If City disputes the amount of Surety's tender under this paragraph 4.4, City may exercise all remedies available to it at law to enforce Surety's liability under paragraph 6, below. 5. If Surety does not proceed as provided in paragraph 4, above, then Surety shall be deemed to be in default on this Bond ten days after receipt of an additional written notice from City to Surety demanding that Surety perform its obligations under this Bond. At all times City shall be entitled to enforce any remedy available to City at law or under the Agreement including, without limitation, and by way of example only, rights to perform work, protect work, mitigate damages, advance critical work to mitigate schedule delay, or coordinate work with other consultants or contractors. 6. Surety's monetary obligation under this Bond is limited by the Amount of this Bond identified herein as the Penal Sum. This monetary obligation shall augment the Balance of the Agreement Sum. Subject to these limits, Surety's obligations under this Bond are commensurate with the obligations of Contractor under the Agreement. Surety's obligations shall include, but are not limited to: 6.1 The responsibilities of Contractor under the Agreement for completion of the Agreement and correction of defective work; 6.2 The responsibilities of Contractor under the Agreement to pay liquidated damages, and for damages for which no liquidated damages are specified in the Agreement, actual damages caused by non-performance of the Agreement including, but not limited to, all valid and proper backcharges, offsets, payments, indemnities, or other damages; 6.3 Additional legal, design professional and delay costs resulting from Contractor Default or resulting from the actions or failure to act of the Surety under paragraph 4, above (but excluding attorney's fees incurred to enforce this Bond). 7. No right of action shall accrue on this Bond to any person or entity other than City or its successors or assigns. 8. Surety hereby waives notice of any change, alteration or addition to the Agreement or to related subcontracts, purchase orders and other obligations, including changes of time. Surety consents to all terms of the Agreement, City of Cupe1iino 2014 Pavement Maintenance Project -Phase l 00610 - 2 Faithful Construction Performance Bond City of Cupertino Aquarium Maintenance including provisions on changes to the Agreement. No extension of time, change, alteration, modification, deletion, or addition to the Agreement Documents, or of the work required thereunder, shall release or exonerate Surety on this Bond or in any way affect the obligations of Surety on this Bond. 9. Any proceeding, legal or equitable, under this Bond shall be instituted in any court of competent jurisdiction where a proceeding is pending between City and Contractor regarding the Agreement, or in the coutis of the County of Santa Clara, or in a court of competent jurisdiction in the location in which the work is located. Communications from City to Surety under paragraph 3.1 of this Bond shall be deemed to include the necessary contracts under paragr~ph 3.2 of this Bond unless expressly stated otherwise. 10. All notices to Surety or Contractor shall be mailed or delivered (at the address set forth on the signature page of this Bond), and all notices to City shall be mailed or delivered as provided in the Agreement. Actual receipt of notice by Surety, City or Contractor, however accomplished, shall be sufficient compliance as of the date received at the foregoing addresses. 1 I. Any provision in this Bond conflicting with any statutory or regulatory requirement shall be deemed deleted herefrom and provisions conforming to such statut01y requirement shall be deemed incorporated herein. 12. Definitions. 12.1 Balance of the Agreement Sum: The total amount payable by City to Contractor pursuant to the terms of the Agreement after all proper adjustments have been made under the Agreement, for example, deductions for progress payments made, and increases/decreases for approved modifications to the Agreement. 12.2 Agreement: The Agreement between City and Contractor identified on the signature page of this Bond, including all Contract Documents and changes thereto. 12.3 Contractor Default: Material failure of Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Agreement including, but not limited to, "default" or any other condition allowing a termination for cause as provided in Agreement. 12.4 City Default: Material failure of City, which has neither been remedied nor waived, to pay Contractor progress payments due under the Agreement or to perform other material terms of the Agreement, if such failure is the cause of the asse1ied Contractor Default and is sufficient to justify Contractor termination of the Agreement. City of Cupertino Aquarium Maintenance END OF DOCUMENT 00610 - 3 Construction Performance Bond POA#: 310011 SureTec Insurance Company LIMITED POWER OF ATTORNEY Know All Men by These Presents, That SURETEC INSURANCE COMP ANY (the "Company"), a corporation duly organized and existing under the laws of the State of Texas, and having its principal office in Houston, Harris County, Texas, does by these presents make, constitute and appoint Valerie Aber its true and lawful Attorney-in-fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings or other instruments or contracts of suretyship to include waivers to the conditions of contracts and consents of surety for: Two Million and 00/100 Dollars ($2,000,000.00) and to bind the Company thereby as fully and to the same extent as if such bond were signed by the President, sealed with the corporate seal of the Company and _duly attested by its Secretary, hereby ratifyin):( and confirming all that the said Attorney-in-Fact may do in the premises. Said appointment shall continue in force until 1213112016 and is made under and by authority of the following resolutions of the Board of Directors of the SureTec Insurance Company; Be it Resolved, that the President, any Vice-President, any Assistant Vice-President, any Secretar/ or any Assistant Secretary shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attomey(s)-in-Fact to represent and act for and on behalf of the Company subject to the following provisions: Attorney-in-Fact may be given full power and authority for and in the name of and of behalf of the Company, to execute, acknowledge and deliver, any and all bonds, recognizances, contracts, agreements or indemnity and other conditional or obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such Attorney-in-Fact shall be binding upon the Company as if signed by the President and sealed and effected by the Corporate Secretary. Be it Resolved, that the signature of any authorized officer and seal of the Company heretofore or hereafter affixed to any power of attorney or any certillcate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile signature or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is attached. (Adopted at a meeting held on 20th of April, 1999.) . In Witness Whereof, SURETEC INSURANCE CO.MP ANY has caused these presents to be signed by its President, and its corporate seal to be hereto ili'fi.>::e<l This 31st day of March , AD. 2015 State of Texas County 1JfHarris ss: \"\jP:AN'''11"1~ S ,., ........ C$'"\~. . " C\\, ... ~~ UJ UJ i;d !l'. \ ! <!~ .... J. .... '"I ........... ,/' * ,,,. . ., ~/Qm111111111l1\ SURETEC INSURANCE COMPANY John On this 31s1 rlay cf M<irc!1, A.D. 2015 before me personally came John Knox Jr., to me known, who, being by me duly sworn, did depose and say, thathe resides in Houston, Texa~, that he is President of SURETEC INSURANCE COMPANY, the company described in and which executed the above instrument; that he knows the seal of said Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said Company; and that he signed his name thereto by like order. Jacq~elyn Maldonado, Notary Public My commission expires May 18, 2017 I, M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMP ANY, do hereby certify that tbe above and foregoing is a true and correct copy of a Power of Attorney, executed by said Company, which is still in full force and effect; and furthermore, tbe resolutions of the Board of Directors, set out in the Power of Attorney are in full force and effect. Given under my hand and the seal of said Company at Houston, Texas this 15' Any instrument issued in excess of the penalty stated above is totally void and without any validity. For verification of the authority of this power you may call (713) 812-0800 any business day between 8:00 am and 5:00 pm CST.