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17-157 DH Distribution, Varian Park Tennis Courts Windscreen Replacement Project
Purchase Order No. 2018-286 CITY OF m PUBLIC WORKS CONTRACT OF $45,000 OR LESS WITH DH Distribution CUPERTINO FOR Varian Park Tennis Courts Windscreen Replacement Project 1. PARTIES This public works contract ("Contract") is entered into by and between the City of Cupertino, a municipal corporation ("City"), and DH Distribution a sole proprietor, pursuant to Public Contract Code Section 22032, for work on Varian Park Tennis Courts Windscreen Replacement Project. 2. SCOPE OF WORK Contractor will perform and provide all labor , materials, equipment, supplies, transportation, and any and all other items or services necessary to perform and complete the work required for the Project ("Work"), as specified in Attachment A, Scope of Work, and according to the terms and conditions of this Contract, including all attachments and any other documents and statutes incorporated by reference. If any attachment contains provisions that conflict or are inconsistent with the terms set forth in the body of this Contract, the Contract terms will control. 2. TIME FOR COMPLETION The Work required shall commence on "Date to Be Determined" or on the date shown on a written Notice to Proceed ("NTP").The City Engineer will not issue Contractor a written notice to proceed (''NTP") with the Work for the Project until the Contract is fully executed by both parties and City has received all insurance documentation pursuant to Section 13 below and any bonds required for contracts of $25,000 or more, pursuant to Section 14 below. Contractor must fully complete the Work within 90 calendar days from the commencement date ("Contract Time"). Time is of the essence for completion of the Work within the Contract Time. 3. COMPENSATION AND PAYMENT For satisfactory completion of the Work, City will pay Contractor a total not to exceed$ 5823.18 Contractor must submit an invoice on the first day of each month during the for the Work performed during the preceding month, itemizing labor, materials , equipment and any incidental costs incurred. City will pay Contractor 95% of the undisputed amount(s) billed , within 30 days after City's receipt of each properly submitted invoice. Any undisputed retention will be released and included with the final payment to Contractor within 60 days after City accepts the Work for the Project as complete. Contractor warrants that title to all work, materials and equipment incorporated into the Work will pass to City free of any claims, liens , or encumbrances upon payment to Contractor. 4. LIQUIDATED DAMAGES Liquidated damages in the amount of$ 200.00 will be charged each day of unexcused delay, or City may deduct said amount from payments . Liquidated damages are based on reasonably foreseeable consequences of delay, including actual costs incurred by City and intangible damages such as loss of or interference with use of public property or public inconvenience. Upon receiving prompt notice from Varian Park Tennis Courts Windscreen Project Public Works Contract -$45,000/Rev. Oct 4, 2017 Page I Purchase Order No. 2018-286 Contractor of unanticipated events, City may excuse minor unavoidable delays but Contractor will not be entitled to additional compensation, subject to provisions of Public Contract Code Section 7102. 5. LICENSES AND PERMITS Contract or must possess a California Contractor's License in good standing for the following classification(s): D64. Contractor must obtain a City business license before beginning Work. Contractor is solely responsible for obtaining any required building permits or similar governmental authorizations for the Work, at Contractor's sole expense . 6 . LABOR CODE COMPLIANCE Unless the Contract Price is $1,000 or less, this Contract is subject to all applicable requirements of Chapter 1 o f Part 7 of D ivision 2 of t he Labor Code, beginning at Section 1720, and the related regulations, including but not l imited to requirements pertaining to wages , working hours and workers ' compensation insurance . Contractor must also post all job site notices required by laws or regulations pursuant to Labor Code Section 1771.4. Prevailing Wages. Contractor must pay prevailing wages applicable in Santa Clara County for each craft, classification or type of worker needed to perform the Work, including but not limited to employer payments for health, pension, vacation , apprenticeship . The prevailing wage rates are on file with the City Engineer's office and are avai lable online at http://www.dir.ca.gov/DLSR. Pursuant to Labor Code Section 1775 , Contractor/subcontractor are required to make aggrieved workers whole and to pay City a penalty u p to $ 200.00 per day or portion thereof, for each worker not paid prevailing wages. Working Day. Pursuant to Labor Code Section 1810 , a legal day's work is eight hours oflabor. Pursuant to Labor Code Section 1813 , Contractor will pay City a penalty of $25 for each day workers of Contractor or subcontractors are required or permitted to work more than eight hours a day, or more than 40 hours per calendar week, unless such workers are paid overtime wages under Labor Code Section 1815. The Work must be done during regular City working days/ hours unless otherwise specified in Attachment A or authorized in writing by City. Payroll Records. Contractor must maintain certified payroll records in compliance with Labor Code Sections 177 6 and 1812, and DIR implementing regulations . Contractor and subcontractors must certify under penalty of perjury that the information in payroll records is true and correct, as required by Labor Code Sections 1771 , 1811 and 1815 . Contractor must electronically submit certified payroll records to the Labor Commissioner unless the Contract is exempt from DIR registration. Apprentices. If the Contract Price is $30,000 or more , Contractor must comply with the apprenticeship requirements in Labor Code Section 1777.5. DIR Monitoring, Enforcement, and Registration. This Contract is subject to compliance , monitoring and enforcement by the DIR pursuant to Labor Code Section 1725 .5 , unless exempted as indicated below. Contractor/subcontractors must be registered with the DIR to perform public works projects. (1) The registration requirements of Labor Code Section 1725.5 or for electronic submission of certified payroll records do not apply if the Contract is for: (a) construction , alteration , demolition , installation, or repair and under $25 ,000; or (b) maintenance and under $15 ,000. (2) "Maintenan ce " includes routine , recurring and usual work for the preservation, protection and Varian Park Tennis Courts Windscreen Project Public Works Contract -$4 5,000/Rev. Oct 4 , 201 7 Page 2 Purchase Order No. 2018-286 keeping of any publicly owned or publicly operated facility for its intended purposes in a safe and continually usable condition for which it has been designed, improved , constructed , altered or repaired, carpentry, electrical, plumbing, glazing, touchup painting, and other craft work designed to preserve the publicly owned or publicly operated facility in a safe, efficient and continuously usable condition for which it was intended , including repairs , cleaning and other operations on machinery and other equipment permanently attached to the building or realty as fixtures , and landscape maintenance including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems. Workers' Compensation Certification. Pursuant to Labor Code Section 1861 , by signing this Contract, Contractor certifies: "I am aware of Labor Code Section 3700 which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the Work on this Contract." 7. AMENDMENTS AND CHANGE ORDERS All amendments or change orders must be in writing and duly authorized and executed by City and Contractor. Contractor's request for a change order must specify the proposed changes in the Work and any adjustments in Contract Price or Contract Time. Each such request must be accompanied by all supporting documentation, including but not limited to plans/drawings, detailed cost estimates, and impacts on schedule and completion date. 8. STANDARDS AND COMPLIANCE Contractor will use its best efforts to complete the Work in a professional and expeditious manner as required by this Contract and all permit requirements. Contractor's workmanship must meet or exceed industry standards and comply with applicable local, state, and federal laws, regulations, rules, and requirements. By executing this Contract Contractor warrants that all Work will be performed by qualified and experienced personnel, and that neither Contractor nor its subcontractors or employees are emplo yees of City or have any other relationship with City officials, employees or consultants that wou ld create a conflict of interest. 9. INDEPENDENT CONTRACTOR Contractor is an independent contractor and is responsible for the Work and the means and methods by w hich it is performed. Contractor is not a City employee nor entitled to any employee benefits. 10. COMPLIANCE WITH LAWS Contractor must comply with all applicable local, state and federal laws, rules and regulations. Contractor will promptly advise City of any change in applicable laws or other conditions that may affect City's project or Contractor's ability to perform. In addition, Contractor is solely responsible for verifying the identity and employment authorization of all of its employees and subcontractors performing the Work, pursuant to the Immigration Reform and Control Act or similar federal or state rules and regulations governing employment of immigrants. Contractor must indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from Contractor's failure to comply with this section. Varian Park Tennis Courts Wind screen Project Public Works Contract -$45,000/Rev. Oct 4, 20 17 Page 3 Purchase Order No. 2018-286 11. NON-DISCRIMINATION Discrimination against any person, prospective, or present employee of Contractor in connection with this Contract in violation of federal, state or local law is prohibited. There shall be no discrimination on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation , or any other protected classification, including gender identity, Acquired-Immune Deficiency Syndrome (AIDS), AIDS-Related Complex (ARC) Contractor, its employees and subcontractors , must comply with all anti-discrimination laws , including but not limited to civil rights laws , the California Fair Employment and Housing Act, Gov. Code Sec . 11135, and Labor Code Sec. 1735 and 3077.5. Violations of this provision constitute a material breach. 12. INDEMNITY To the fullest extent allowed by law, Contractor must indemnify, defend, and hold harmless City, its City Council, boards and commissions, officers, officials , agents, employees , consultants and volunteers ("Indemnitees") from and against any and all liability, claims , stop notices, actions , causes of action, demands, losses, damages , and expenses (including legal expenses) whatsoever, including liability arising from injury or death of any person, or damage to property or other liability of any nature, arising out of, pertaining to, or related to the Work or performance of this Contract ("Liability"), including failure to comply with any obligations herein by Contractor or Contractor 's directors , officers, officials , employees, agents or subcontractors. This indemnity obligation does not extend to Liability caused by the sole negligence or willful misconduct of an Indemnitees . Contractor's failure or refusal to timely accept a tender of defense will be deemed a material breach of the Contract. City will timely notify Contractor upon City's receipt of any third-party claim relating to the Contract, as required by Public Contract Code Section 9201. No Indemnitee will be personally liable to Contractor or Contractor's directors, officers, officials , employees, agents or subcontractors for any Liability. Contractor's indemnity obligations under this Contract are not limited by any limitation of the amount or type of damages or compensation payable under the workers' compensation laws or other employee benefit statutes, or by the insurance coverage or bond limits required under this Contract, and will survive the expiration or any early termination of the Contract. 13. INSURANCE Contractor shall comply with all the insurance requirements in Attachment C -Insurance Requirements, attached and incorporated herein by reference. Contractor shall not commence any work or provide any Services until after all insurance requirements are met. Coverage must include the policy types and limits specified below, insuring against claims for injuries to persons or damages to property that may arise or relate to Contractor's performance under the Contract. City will not execute the Contract nor issue a NTP until Contractor has submitted satisfactory certificates of insurance and endorsements , evidencing the type, amount, class of operations covered , and the effective dates and dates of expiration of the insurance coverage required below. The insurance must be issued by a company or companies 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. If Contractor fails to provide or maintain any of the required insurance coverage , City may, in its sole discretion and without prior notice to Contractor, purchase such insurance at Contractor 's expense, deduct costs from payments to Contractor, or terminate the Contract for default. 14. BONDS Varian Park Tennis Courts Windscreen Project Public Works Contract -$45,000/Rev. Oct 4, 2017 Page 4 Purchase Order No. 2018-286 If the Contract Price is $25,000 or more, City will not execute the Contract and issue the NTP until Contractor has provided City with a payment bond and a performance bond for the Work, each in the penal sum of not less than I 00% of the Contract Price, using the bond forms included in this Contract under Attachment B, Bond Forms. Each bond must be issued by a surety admitted in California. If an issuing surety cancels a bond or becomes insolvent, Contractor must provide a substitute bond from a surety acceptable to City, within seven calendar days after written notice from City. If Contractor fails to substitute an acceptable surety within the specified time, City may, in its sole discretion and without prior notice to Contractor, purchase such bond(s) at Contractor's expense and deduct the cost from payments otherwise due to Contractor, or terminate the Contract for default. 15. ASSIGNMENT AND SUCCESSORS Contractor may not transfer or assign its rights or obligations under this Contract, in part or in whole, without City's prior written consent. The terms and conditions of this Contract are binding on Contractor's heirs , successors, and assignees. 16. SUBCONTRACTORS Contractor may use qualified, competent subcontractors to perform up to O % of the Work, provided each subcontract expressly requires subcontractors to be bound by the provisions of this Contract, including but not limited to the indemnity and insurance requirements. It is Contractor's responsibility to ensure that Subcontractors maintain the required insurance certificates , minimum coverage, additional insureds endorsements, indemnity, and waivers of subrogation. Contractor agrees to include these insurance requirements and indemnity provisions in any contract with a Subcontractor. Contractor shall require Subcontractors to provide valid certificates of insurance and endorsements prior to commencement of Work and shall provide proof of compliance to City. Subcontractors must agree to be bound to Contractor and City in the same manner and to the same extent as Contractor is bound to City under the Contract Documents . Subcontractors must include these requirements in any contract with a Sub-subcontractor. A copy of this Agreement and its insurance provisions will be furnished to the Subcontractor upon request. City reserves the right to reject any subcontractor of any tier, and to bar a subcontractor from performing further Work on the Project, if City, acting in its sole discretion, determines that the subcontractor's performance or failure to perform does not meet the requirements of this Contract, or for any of the reasons set forth in Public Contract Code Section 4107. If City rejects a subcontractor pursuant to this section, Contractor must either self-perform the Work of that subcontractor or replace the subcontractor with one that is acceptable to City, at no additional cost to City. 17. UTILITIES, TRENCHING AND EXCAVATION A. Contractor must call the Underground Service Alert ("USA") 811 hotline for marking of utility locations before digging. For underground service alerts for City street lighting and traffic signal conduits , Contractor must also, before commencing any Work, call the City of Cupertino Service Center at (408) 777-3269. B. As required by Government Code Section 4215 , if, while performing the Work, Contractor discovers utilities or utility facilities not identified by City, Contractor must immediately provide written Varian Park Tennis Courts Windscreen Project Public Works Contract -$45 ,000/Rev. Oct 4, 2017 Page 5 Purchase Order No. 2018-286 notice to City and to each known utility. C. As required by Government Code Section 7104, Contractor must promptly notify City in writing if Contractor finds any of the three conditions listed below, and wait for further direction from City before disturbing such condition(s). Following such notice, City will promptly investigate and if City finds that one or more of the following three conditions is or are present and that the presenters of any such condition will cause a decrease or increase in Contractor's cost of or time required for performance of the Work, City will amend the Contract Time or Contract Price for the Work as required by law: (1) Material that Contractor believes may be a hazardous waste as defined in Health and Safety Code Section 25117, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with the law; (2) Subsurface or latent physical conditions at the Project worksite differing from those indicated by information about the worksite made available to Contractor; and (3) Unknown physical conditions at the Project worksite of any unusual nature , materially different from those ordinarily encountered and from those generally recognized as inherent in the character of the Work. D. As required by Labor Code Section 6705, if the Contract Price exceeds $25,000 and the Work includes excavation of any trench or trenches five feet or more in depth, a detailed plan must be submitted to City, or its civil or structural engineer, for acceptance in advance of the excavation. The detailed plan must show the design of shoring, bracing, sloping, or other provisions for worker protection from potential hazards of caving ground. If the plan varies from the shoring system standards, it must be prepared by a registered civil or structural engineer. Use of a shoring, sloping , or protective system less effective than that required by the Construction Safety Orders is prohibited. 18. RECORDS AND DAILY REPORTS Contractor must maintain daily reports on the Work and submit them to City upon request and at completion of Project. Daily reports must describe: the Work performed that day; the number of workers and hours performing the Work; the equipment and hours of labor used for each task; a description of weather conditions; and any circumstances affecting the planned progress of the Work. All such reports are the exclusive property of City, but Contractor is permitted to retain copies for its records. Unless otherwise specified in Attachment A, Contractor must maintain and update a separate set of as- built drawings during performance of the Work, showing any changes to the Work Scope in Attachment A, or any drawings incorporated into this Contract. The as-built drawings must be updated as changes occur, on a daily basis if necessary. Actual locations to scale must be identified on the as-built drawings for all major components of the Work, including but not limited to, as applicable : mechanical , electrical and plumbing work; HV AC systems; utilities and utility connections; and any other components City determines should be included in the final record drawings of the Project. Deviations from the original drawings must be shown in detail, and the location of all main runs, including but not limited to piping, conduit, ductwork, and drain lines, must be shown by dimension and elevation. 19. CONFLICTS OF INTEREST Contractor warrants it does not have a conflict of interest in connection with this Contractor or the Varian Park Tennis Courts Windscreen Project Public Works Contract -$45 ,000/Rev. Oct 4, 2017 Page 6 Purchase Order No. 2018-286 Work. Contractor shall comply with conflict of interest laws under Government Code section 1090 et seq., the Political Reform Act, Government Code section 81000 et seq., and all accompanying regulations. Contractor warrants that neither Contractor, subcontractor, nor their employees are employed by City or have any other relationship with City officials, employees or consultants that would create an unlawful conflict of interest. If Contractor acts in a staff capacity or makes governmental decisions during the Contract Term, Contractor may be required to fill out a conflict of interest form pursuant to Title 2, Division 6, Section 18700 of the California Code of Regulations. 20. NOTICES All notices, demands, requests or approvals under this Contract must be given or made in writing and sent to the other party by personal delivery, U.S. Mail , a reliab le overnight delivery service, facsimile, or by email as a PDF (or comparable) file. Notice is deemed effective upon delivery unless otherwise specified. Notice for each party must be given as follows: City of Cupertino 10300 Torre A v enue Cupertino CA 95014 Attention: Brian Gathers Copy to: Jonathan Ferrante Email: briang@cupertino.org 21. URBAN RUNOFF MANAGEMENT Contractor: DH Distribution Address: 525 Obispo Road Attention: Mendy Sturgeon Copy to: Evan Campodonico Email: mendy@dhtennis.net All Work on the Project must fully comply with federal, state, local and City regulations concerning stormwater management. Contractor must avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, Contractor will use only the amount of water necessary to dampen the dust. Contractor will take all steps necessary to keep wash water out of the streets, gutters and storm drains. Contractor will also develop and implement erosion and sediment controls to prevent pollution of storm drains. Contractor must implement these contro ls prior to the start of the Work, upgrade them due to weather conditions or as otherwise required by City, maintain them during construction or other Work phases to provide adequate protection, and remove them at the end of construction and completion of the Work. Such controls must include, but wi ll not be limited to , the following requirements: A. Install storm drain inlet protection devices such as sand bag barriers, filter fabric fences, and block and gravel filters at all drain inlets impacted by construction. During the annual rainy season, October 15 through June 15, storm drain inlets impacted by construction work must be filter-protected from onsite de-watering activities and saw-cutting activities. Shovel or vacuum saw-cut slurry and remove from the Work site. B. Cover exposed piles of soil or construction material with plastic sheeting. Store all construction materials in containers . C. Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain and at the end of each work day. When the Work is completed, wash the streets , collect and dispose of the wash water off site in lawful manner. Varian Park Tennis Courts Windscreen Project Publi c Works Contract -$45,000/Rev. Oct 4, 2017 Page 7 Purchase Order No. 2018-286 D. After breaking old pavement, remove debris to avoid contact with rainfall/runoff. E. Maintain a clean work area by removing trash, litter, and debris at the end of each work day and when Work is completed. Clean up any leaks, drips, and other spills as they occur. F. The requirements stated above are intended to be used in conjunction with the California Stormwater Quality Association and California Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, and any other applicable documents on stormwater quality controls for construction. Contractor's failure to comply with this section will result in the issuance of noncompliance notices, citations, Work stop orders and regulatory fines. 22. EARLY TERMINATION City may terminate this Contract for convenience or for cause, upon written notice to Contractor. Contractor 's failure or refusal to perform the Work as required will be deemed a default. If not cured to City's satisfaction within two days after delivery of written notice of default to Contractor, City may , in its sole discretion, elect to do one or more of the following: A. Terminate the Contract immediately, upon written notice to Contractor. B. Complete the Work using City's own forces and charge Contractor for all resulting costs and expenses, including City staff time. C. Retain another contractor to complete the Work and charge Contractor for costs and expenses. D . Require the performance bond surety to pay for completion of the Work. E. Pursue any other remedy available to City at law or under this Contract. If City terminates the Contract, City will owe Contractor only for Work satisfactorily performed before Contract termination date . Nothing in Section 23 below is intended to delay, abridge or bar City's right to terminate this Contract early pursuant to this section. 23. DISPUTE RESOLUTION, LAW AND VENUE Contract disputes are subject to the dispute resolution procedures of Public Contract Code Section 20104 et seq., incorporated here by reference. Interpretation and enforcement of this Contract are governed by California law, and venue for any legal action shall be the Superior Court for the County of Santa Clara, California. Contract disputes are subject to the requirements of the California Government Claims Act. 24. ADVERTISEMENT Contractor may not post, exhibit, or display any advertising signage at the Project site without prior written approval from City. This section does not apply to signage intended or required for general safety while Work is in progress. 25. WAIVER Varian Park Tennis Courts Windscreen Project Public Works Contract -$45 ,000/Re v. Oct 4, 2017 Page 8 Purchase Order No. 2018-286 City waiver of any breach of a contract provision or condition, or the acceptance of work or payment for said work, shall not constitute a waiver of any other breach of this Contract. 26. WARRANTY Contractor guarantees the Work and materials used or provided for the Project for a period of one year, beginning upon City's acceptance of the Work as complete ("Warranty Period"). During the Warranty Period, upon notice from City of any Work defects, Contractor must, at its sole expense , promptly repair or replace the defective Work or materials and any other Work or materials that are displaced or damaged during the warranty work, excepting any damage resulting from ordinary wear and tear . 27. INTEGRATION This Contract, attachments, and documents and statutes attached, referenced, or expressly incorporated herein, including any duly authorized and executed amendments or change orders, constitute the full and complete understanding of every kind or nature between City and Contractor with respect to the Work and the Project. No oral agreement or implied covenant will be enforceable against City. If any term or provision of this Contract is determined by a court to be illegal, invalid or unenforceable, the legal portion of said provision and all other contract provisions shall remain in full force and effect. 28. SURVIVAL Section 12 (Indemnity), Section 23 (Dispute Resolution), and Section 26 (Warranty) expressly survive termination or expiration of the Contract. 29 . INSERTED PROVISIONS Each provision and clause mandated by law will be deemed to be included in this Contract for purposes of interpretation and enforcement. If through mistake or otherwise any such provision was omitted or incorrectly inserted, the Contract will be deemed amended accordingly. The Parties will work in good faith to give meaning to the intent of this Contract. 30. CAPTIONS The captions in this Contract are for convenience only and are not a part of the Contract. They do not affect, limit or amplify the terms or provisions of the Contract. 31. AUTHORIZATION The persons signing below warrant they have the authority to enter into this Agreement and legally bind their respective Parties. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code Section 313 . IN WITNESS WHEREOF, the parties have caused this Contract to be executed. Varian Park Tennis Courts Windscreen Project Public Works Contract -$45 ,000/Rev. Oct 4, 2017 Page 9 CONTRACTOR : DH DISTRIBUTION, By: ~...---~ Evan Campodonico Title: Vice President of Business Development Date: 10/25/17 APPROVED AS TO FORM: l fiJ ~-#A~--\j1 ~·. Randolph Hom Title: City Attorney City Attorney's Office Date: \\\ Q t 1"' Varian Park Tennis Courts Windscreen Project Purchase Order No . 2018-286 CITY OF CUPERTINO, a Municipa Title: Director of Public Works Date: _\_~o-1'---"(:w/-f---CY7-1------ ATTEST: By: Grace Schmidt ~ ,;ft--- Title: City Clerk City of Cupertino Date: _(~( _-~J_--_/-+-] __ _ Page 10 Contract Amount: $ 5823.18 P.O. No . 2018-286 Account No. 100-84-813-700-702 Public Works Contract -$45,000/Rev. Oct 4, 201 7 Attachment A -Scope of Work Contractor will perform the following Work for the Project, within the Contract Time set forth in Section 2 and for the Contract Price set forth in Section 3 of this Contract: Contractor to furnish and install all materials per Estimate #17-8937 (Attached) Varian Park Tennis Courts Windscreen Project Public Works Contract -$45 ,000/Rev . Oct 4, 2017 Page 11 ATTACHMENT C -INSURANCE REQUIREMENTS A. Required Policies and Limits. The following insurance policies and limits are required for this Contract, unless otherwise specified in Attachment A: (1) Commercial General Liability ("CGL ") Insurance: The CGL policy must be issued on an occurrence basis, written on a comprehensive general liability form, and must include coverage for liability arising from Contractor's or its subcontractor's acts or omissions in the performance of the Work, including contractor's protected coverage, blanket contractual, completed operations, vehicle coverage and employer's non-ownership liability coverage, with limits of at least $2,000,000 per occurrence and $4,000,000 in the aggregate. The CGL policy must protect against any and all liability for personal injury, death, or property damage or destruction arising directly or indirectly in the performance of the Contract. The CGL coverage may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or umbrella policies, provided each such policy complies with the requirements set forth in this Contract. a. It will 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 will be made available to the Additional Insured and will be (1) the minimum coverage and limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any Insurance policy, whichever is greater. b. The Additional Insured coverage under the Contractor's policy will be "primary and non- contributory" and will not seek contribution from the City's insurance or self-insurance and will be at least as broad as CG 20 010412. c. The limits of Insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess Insurance. Any umbrella or excess Insurance will contain or be endorsed to contain a provision that such coverage will also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City's own insurance or self- insurance will be called upon to protect it as a named insured. Contractor will maintain insurance as required by this contract to the fullest amount allowed by law and will maintain insurance for a minimum of five years following the completion of this project. In the event contractor fails to obtain or maintain completed operations coverage as required by this agreement, the City at its sole discretion may purchase the coverage required and the cost will be paid by the contractor. (2) Comprehensive Automobile Liability Insurance: The automobile liability policy must be issued on an occurrence basis, with limits of at least $1,000,000 per occurrence for bodily injury and $1,000,000 per occurrence for property damage, or combined single limit of $1,000,000 per occurrence, covering owned, non-owned and hired automobiles. (3) Workers' Compensation Insurance and Employer's Liability Insurance: The workers' compensation and employer's liability policy or policies must comply with the requirements of the California Workers' Compensation Insurance and Safety Act, providing coverage of at least $1,000,000 Varian Park Tennis Courts Windscreen Project Public Works Contract· $45 ,000/Rev. Oct 4, 2017 Page 12 or as otherwise required by the statute. If Contractor is self-insured, Contractor must provide its Certificate of Permission to Self-Insure, duly authorized by the DIR. B. Builder's Risk Insurance. Contractor must provide builder 's risk insurance only if the box below is checked. D Builder's Risk coverage is required for this Contact. The builder's risk policy must be issued for course of construction on an occurrence basis, for all-risk coverage on a 100% completed va lue basis on the insurable portion of the Project for the benefit of City, and name the City as a loss payee as its interest may appear. If the Project does not involve new or major reconstruction, the City may elect, acting in its sole discretion, to accept an installation floater policy instead of builder's risk. The installation floater policy must 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. C. Additional Insureds. City, including its City Council, boards and commissions, officers , officials, agents, employees, consultants and volunteers, must be named as additional insureds under Contractor's insurance policies required under this section, except under the worker's compensation policy. The naming of an additional insured will not affect any recovery to which the additional insured would be entitled to under the policy if not named as an additional insured. An additional insured will not be held liable for any premium, deductible portion of any loss, or expense of any nature under the policy or any extension thereof. Any other insurance held by an additional insured will not be required to contribute anything toward any loss or expense covered by Contractor's insurance. D. Notice. Each certificate of insurance must state that the coverage afforded by the policy or policies 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. E. 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. F. Required Endorsements. The CGL policy, the automobile liability policy and the builder's risk or installation floater policy, ifrequired, must include the following endorsements : (1) The inclusion of more than one insured will not operate to impair the rights of one insured against another, and the coverages afforded will apply as though separate policies have been issued to each insured. (2) The insurance provided is primary and no insurance held or owned by City may be called upon to contribute to a loss. (3) This policy does not exclude explosion, collapse, underground excavation hazard , or removal of lateral support. Varian Park Tennis Courts Windscreen Project Pub li c Works Contract -$45,000/Rev. Oct 4, 2017 Page 13 G. Forms of Certificates of Insurance and Endo rsements. Each certifi cate of insurance and endorsement must provide the name and policy number of each carrier and policy , using a form and format acceptable to City . H. Subcontractors. Contractor must ensure that each subcontractor maintains the same insurance coverage required under this section with respect to its performance of Work on the Project, including those requirements related to the naming of additional insureds and waivers of subrogation. END OF ATTACHMENT C Varian Park Tennis Courts Windscreen Project Public Works Contract -$4 5,000/Re v. Oct 4, 2017 Page 14 _____..-, DHDIS-1 OPtn· ~I ACORD• CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/00/YYYY) '---··< 10/20/2017 THIS CERTIFICATE IS ISSUED AS A MATIER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE OOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND , EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), 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 15 WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A -statement on this certificate does not confer riahts to the certificate holder in lieu of such endorsementlsl. _ PRODUCER 650 -726-6328 -s2m;~cT Claudia Lopez Weller/O'Brien Insurance Ser rt8.N:O, Ext): 650-726-6328 I rffc. Nol:650-726-6320 Kevin O'Brien 720 Kelly Avenue !~~""· claudia@wellerobrien.com Half Moon Bay, CA 94019 INSURERISl AFFORDING COVERAGE NAJC# Claudia Lopez INSURER A : Liberty Mutual Insurance 23043 INSURED DH Distribution INSURERS : PO Box325 El Granada, CA 94018 INSURERC : INSURERD: INSURERE : INSURER _F : cn\•-~•--A ,r ~ I IP~4TE NIIMBFR• RFVl~ION 1>.11 IUDl:R• 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. 1~:: TYPE OF INSURANCE ~~...o~ ~-~~,!l POLICY NUMBER POLICYEFF POLICY EXP LilltlTS A COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 -D CLAIMS-MADE D OCCUR !:?&IAG.U9,,~ENTED X BZS (18) 57 52 90 95 09/0~/2017 09/01/2018 s 300,000 - X Business Owners MED EXP /Anv one oersonl s 15,000 - PERSONAL & ADV INJURY $ 2,000,000 -4,000,000 R'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE s POLICY D m?r D LOC PRODUCTS • COMP/OP AGG s 4,000,000 OTHFR : . s A AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 1,000,000 . ,c. ·-·~-~" $ >---- ANY AUTO X BAS (18) 57 52 90 95 09/01/2017 09/01/2018 BODILY INJURY /Per oersonl S· >-----OWNED X SCHEDULED BODILY INJURY /Per accidentl $ >----AUTOS ONLY >----AUTOS X ~LWsoNLY X ~8f~"mi~ 1p'}.9~~,~~RAMAGE s ~ $ UMBRELLA LIAB H OCCUR EACH OCCURRENCE -$ >---- EXCESS LIAB CLAIMS-MADE AGGREGATE s DED I I RETENTION$ $ A WORKERS COMPENSATION X I ~ffnm I I OTH-.ER AND EMPLOYERS' LIABILITY YIN xws (18) 57 52 90 96 09/01/2017 09/01/2018 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE D E.L. EACH ACCIDENT $ ~FICERIMEMBER EXCLUDED? NIA 1,000,000 ( andatory In NH) E .L. DISEASE -EA EMPLOYEE s i~i~~jt~N 'of~PERATION!': below E.L. DISEA!':E -POLICY LIMIT i 1,000,000 DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101 , Additional Remarks Schedule, may be attac:hed If more space la required) cnrc, incruding its City Councir, boards and commissions, officers, o 1cials, a9ents, emplo~ees, consultants and voluteers are endorsed onto the Genera Liability po icy as an Additional Insured. N SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF , NOTICE WI.LL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Cupertino 10555 Mary Avenue Cupertino, CA 95014 ACORD 25 (2016/03) AUTHORIZED REPRESENTATIVE Claudia Lopez The ACORD name and logo are registered marks of ACORD POLICY NUMBER: BZS (18) 57 52 90 95 BAS (18) 57 52 90 9 5 Bl)SINESSOWNERS BP79 96 07 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY . . BUSINESSOWNERS LIABILITY EXTENSION ENDORSEMENT This endorsement modifies insurance . provided under the following : BUSINESSOWNERS COVERAGE FORM -rn;;.;; SUBJECT ~.,-,.--=-=- iii == AGGREGATE LIMITS OF INSURANCE ' .... ;iiiiiiil AMENDMENT OF INSURED CONTRACT DEFINITION ~ . ==== = :i; iE!i!ii!! !'.! ;;;;;;;;;;;;a; 8~ = BODILY INJURY a 0 BROADENED COVERAGE FOR DAMAGE TO PREMISES RENTED TO YOU DUTIES IN THE EVENT OF OCCURRENCE, OFFENSE,.CLAIM OR SUIT INCIDENTAL MEDICAL MALPRACTICE MOBILE EQUIPMENT NEWLY FORMED OR ACQUIRED ORGANIZATIONS PERSONAL AND ADVERTISING INJURY SUPPLEMENTARY PAYMENTS Bail Bonds Loss Of Earnings © 2013 Liberty Mutual Insurance. All rights reserved. BP79 96 07 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission . 3 4 2 4 2 4 2 2 3 4 2 Page 1 of 4 ----------- ,, POLICY NUMBER: BZS {18} 57 52 90 95 · BAS (18} 57 52 90 95 Section II -Liability is amended as follows : I. SUPPLEMENTARY PAYMENTS Paragraph f.(1}(b) of A Coverages is replaced by the following; (b) Up to $3000 for cost of bail bond required because of accidents or traffic law violations arising out of the use of any vehicle to which Business Liability Coverage for "bodily injury" applies. We do not have to furnish the bonds. Paragraph 1.f.(1)(d) of A Coverages is replaced by the following; (d) All reasonable expenses incurred by the insured at our request · to assist us in the Investigation or defense of the claim or "suit", including actua l loss of earnings up to $500 a day because of time off from work. II. BROADENED COVERAGE FOR DAMAGE; TO PREMISES RENTED TO YOU With respect to the coverage provided under this endorsement, Section II • Llablllty is amended as follows: 1. The final paragraph of 8.1. Exclusions -Applicable To Business Liability Coverage is deleted and . replaced by the following: With respect to the premises which are rented to you or temporarily · occupied by you with the permis- sion of the owner, Exclusions c., d., e., g., h., k., I., m., n. and o. do not apply to "property damage". 2. Paragraph D.2: Liability And Medical Expenses Limits Of Insurance is deleted and replaced by the following: The most we will pay under this endorsement for the sum of all damages because of all "property damage" to premises while rented to you or temporarily occupied by you with the pennission of the · owner is the Limit of Insurance shown in the Declaration . 3. Paragraph D.3. Liability And Medical Expenses Limits Of Insurance is deleted . Ill. INCIDENTAL MEDICAL MALPRACTICE Exclusion 1.J.(4) does not apply to Incidental Medical Malpractice Injury coverage. The following is added to F. LIABILITY AND MEDICAL EXPENSES DEFINITIONS: 23. "Incidental Medical Malpractice Injury" means bodily injury arising out of the rendering of or failure to render , during the policy period , the following services: a. medical, surgical, dental, x-ray or nursing service or treatment or the furnishing of food or bev- erages in connection therewith; or b. the furnishing or dispensing of drugs or medical, dental · or surgical supplies or appliances. This coverage does not apply to: 1. expenses incurred by the insured for first-aid to others at the time of an accident and the Duties in the Event of Occurrence, Claim or Suit Condition is amended accordingly; 2. any insured engaged in the. business or occupation of providing any of the services described under a. and b. above ; 3. injury caused by any indemnitee if such indemnitee is engaged in the business or occupation of providing any of the services described under a. and b. above. IV. MOBILE EQUIPMENT 1. Section C. Who is An Insured is amended to include any person driving "mobile equipment" with your pennission. . BP79 96 0713 © · 2013 Liberty Mutual Insurance. AU rights reserved . lndudes copyrighted material of Insurance Services Office, Inc., with Its permission . Page 2 of 4 ,, POLICY NUMBER : BZS (18) 57 52 90 95 BAS (18) 57 52 90 95 • VI. NEWLY FORMED ORACQUIRED ORGANIZATIONS The following is added to C. Who Is An Insured: 3. Any business entity acquired by you or incorporated or organized by you under the laws of any individual state of the United States of America over which you maintain majority · ownership interest exceeding fifty percent. Such acquired or newly· formed o_rganization will qualify as a Named Insured if there is no similar insurance available to that entity. However, a. Coverage under this provision is afforded only until the 180th day after the entity was acquired or incorporated or organized by you or the end oithe policy period, whichever is earlier; b. Coverages A. Paragraph 1. Business Liability, does not apply to: (1) "Bodily injury" or "property damage• that occurred before the entity was acquired or incor- porated or organized by you; and (2) "Personal and advertising injury" ansing out of an offense committed before the entity was acquired or incorporated or organized by you; and c. Records and descriptions of operations must be maintained by the first Named Insured. : No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. VII. AGGREGAT.E LIMITS The following is added to Aggregate Limits Paragraph 4. of o. Liability and Medical Expenses Limits of Insurance: · The Aggregate Limits apply separately to each of "locations" owned by or rented to you or temporarily occupied . by you with the permission of the owner. The Aggregate Limits also apply separately to each of your projects away from premises owned by or rented to you. For the purpose of this endorsement orily, "location " means premises involving the same or connect- ing lots, or premises whose connection is interrupted only by a street , roadway, waterway or right- of-way of a railroad. BP79 96 07 13 © 2013 Liberty Mutual Insurance . All rights reserved. Includes copyrighted material of Insurance Services Office, Inc ., with its pennis$ion . Page 3 of 4 ! POLICY NUMBER: BZS (18) 57 52 90 95 BAS (18) 57 52 9 0 95 VIII. DUTIES IN THE EVENT OF OCCURRENCE, OFFENSE, CLAIM OR SUIT 1. The requirement in E. Liability And Medical Expenses General Conditions paragraph 2.a, that you must see to it that we are notified of an "occurrence" or offense which may result in a claim applies only when the "occurrence" is known to any insured listed in Paragraph C.1. Who Is An Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim. 2. The requirements in E. Liability And Medical Expenses General Conditions paragraph . 2.b. that you must see to it that we receive notice of a claim or "suit" will not be considered breached unless the breach occurs after such claim or "suit" is known to any insured listed under Paragraph C.1. Who lsAn Insured or any "employee" authorized by you to give or receive notice of an "occurrence" or claim. IX. BODILY INJURY Paragraph 3. of F. Liability And Medical Expenses Definitions is replaced by .the following : 3. "Bodily Injury" means: a. Bodily injury, sickness, disease, or incidental medical malpractice injury sustained by a person, and includes mental anguish resulting from any of these; and including death resulting . from any of these at any time. · X. AMENDMENT OF INSURED CONTRACT DEFINITION Paragraph 9. of F. Liability And Medical Expenses Definitions is replaced by the following: 9. "Insured contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease . of premises that indemnifies any person or organization for damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner is not an "insured contract"; b. A sidetrack agreement; c. Any easement or license agreement, except in connection with construction or demolition oper- ations on or within 50 feet of a railroad; d. . An obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; f. That part of any other contract or agreement pertaining to your business (including an indem- nification of a municipality in connection with work performed for a municipality} under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization , provided the "bodily injury" or "property damage• is caused, in whole or in part, by you or by those acting on your behalf. However, such part of a contract or agreement shall only be considered an "insured contract" to the extent your assumption of the . tort liability is permitted by law. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. Paragraph f. does not include th.at part a.f any contract · or agreement: {1) That indemnifies a railroad for "bodily injury" or "property damage" ansmg out of construc- tion or demolition operations, within 50 feet of any railroad property and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing; · (2) That indemnifies an architect, engineer or surveyor for injury or damage arising out of: (a) Preparing, approving, or failing to prepare or approve, maps, shop drawings , opinions, reports , surveys, field orders , change orders or drawings and specifications; or (b) Giving directions or instructions, or failing . to give them, if that is the primary cause of the injury or damage; or (3) Under which the insured, . if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the insured 's rendering or failure to render professional services, including those listed in (2) above and supervisory, inspection, architectural or engine~ririg activities. · XI. PERSONAL AND ADVERTISING INJURY Paragraph 14. b. of F. Liability And Medical Expenses Definitions is replaced by the .following: b. Malicious prosecution or abuse of process. @ 2013 Liberty Mutual Insurance . All rights reserved . BP79 96 07 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 4of 4 ~--------------- DH Distribution POBOX325 525 OBISPO ROAD EL GRANADA, CA 94018 BillTo City of Cupertino Cupertino Sports Center Colleen Ferris 21111 Stevens Creek Blvd. Cupertino, CA 95014 P.O . No. Description 9' Tenn-Air Pro Windscreen specifycolor 6' Tenn-Air Pro Windscreen specifycolor Subtotal Screen Installation and Hardware Shipping Sales Tax Estimate is good for 30 days unless otherwise noted. Phone# Fax# Terms E-mail Estimate Date Estimate# 9/12/2017 17-8937 Ship To Varian Park 22266 Varian Way Cu pertino, CA Rep Project Varian Park Septl 7 Qty Cost Total 458 6.65 3,045.70T 28 4.15 116.20T 3,161.90 486 4.50 2,187.00 189.71 189.71 284.57 284.57 Total $5,823 .18 Signature ---------------- Web Site 650-563-9600 650-440-4695 info@dhtennis.net www.dhtcnnis.net