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18-034 Rock the Bike, LLC., Pedal Powered Entertainment for 2018 Earth & Arbor Day event on April 21, 2018CITY OF a PROFESSIONAL/CONSULTING SERVICES AGREEMENT CUPERTINO 1. PARTIES This Agreement is made and entered into as of _M_a_r_·c_h_l_,___2_0_18 ___________ _ ("Effective Date") by and between the City of Cupertino, a municipal corporation ("City"), and Rock the Bike! LLC 6323 San Pablo Ave, Oakland CA 94608 ("Contractor"), a Limited Liability Company for Pedal powered entertainment for 2018 Earth & Arbor Day event April 21, 2018. 2. SERVICES Contractor agrees to provide the services and perform the tasks ("Services") set f01ih in detail in Scope of Services, attached here and incorporated as Exhibit A. 3. TIME OF PERFORMANCE 3.1 This Agreement begins on the Effective Date and ends on April 21, 2018 ("Contract Time"), unless terminated earlier as provided herein. Contractor's Services shall begin on April 21, 2018 and shall be completed by A__,_pr_i_l 2_1--'-,_2_0_18 _____ _ 3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the Schedule of Performance, attached and incorporated here Exhibit B. 3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory perfom1ance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $ 3 000 ("Contract Price"), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor's actual costs exceed the capped amount. No extra work or payment is pennitted without prior written approval of City. 4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable completed and the amom1t due for the preceding month. Within thirty (30) days of completion of Services, Contractor must submit a requisition for final and complete payment ofcosts and pending claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any farther payment or other obligations under the Agreement. Program Rock the Bike! Earth & Arbor Day Entertainment Professional/Consulting Contracts /Version: Nov 16. 2017 Pagel of8 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venhire of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits, worker's compensation or other benefits from the City. 5.2 Contractor's Qualifications. Contractor warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Services in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Services as required by law and have procured a City Business License. 5:4 Subcontractors. Only Contractor's employees are authorized to work under this Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approved subcontractor. 5.5 Tools, Materials and Equipment. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement. 5.6 Payment of Taxes. Contractor must pay income taxes on the money earned under this Agreement. Upon City's request, Contractor will provide proof of payment and will indemnify City for violations pursuant to the indemnification provision of this Agreement. 6. PROPRIETARY/CONFIDENTIAL INFORMATION In performing this Agreement, Contractor may have access to private or confidential information owned or controlled by the City, which may contain proprietary or confidential details the disclosure of which to third parties may be damaging to City. Contractor shall hold in confidence all City information provided by City to Contractor and use it only to perform this Agreement. Contractor shall exercise the same standard of care to protect City information as a reasonably prudent contractor would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product, memoranda, sh1dy, report, map, plan, drawing, specification, data, record, document or other information or work, in any medium ( collectively, "Work Product"), prepared by Contractor in connection with this Agreement will be the exclusive property of the City and shall not be shown to any third-party without prior written approval of City. 7.2 Copyright. To the extent permitted by Title 17 of U.S. Code, all Work Product arising out of this Agreement is considered "works for hire" and all copyrights to the Work Product will be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights. Contractor may use copies of the Work Product for promotion only with City's written approval. Program Rock the Bike! Earth & Arbor Day Entertainment Professional/Consulting Contracts /Version: Nov 16. 2017 Page 2 of8 ... 7.3 Patents and Licenses. Contractor must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented, trademarked, or copyrighted intellectual property jf incorporated into the Services or Work Product of this Agreement. 7.4 Re-Use of Work Product. Unless prohibited by law and without waiving any rights, City may use or modify the Work Product of Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of the following: (a) The original Services for which Contractor was hired; (b) Completion of the original Services by others; (c) Subsequent additions to the original Services; and/or ( d) Other City projects. 7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work Product, on recycled paper and copied on both sides, except for one single-sided original. 8. RECORDS Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor's performance, benchmarks and deliverables, which must be available to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four years from the date of City's final payment. 9. ASSIGNMENT Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so will be null and void. Any changes related to the financial control or business nature of Contractor as a legal entity is considered an assignment of the Agreement and subject to City approval, which shall not be unreasonably withheld. Control means fifty percent (50%) or more of the voting power of the business entity. 10. PUBLICITY/ SIGNS Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the City's contributions in making the project possible. The words "City of Cupertino" will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews and newspaper articles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. ll. INDEMNIFICATION ll.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall indemnify, defend and hold Program Rock the Bike! Earth & Arbor Day Entertainment Professional/Consulting Contracts !Version: Nov 16. 2017 Page3 of8 harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers and consultants ("Indemnitees"), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs and expenses (including attorney fees, legal costs and expenses related to litigation and dispute resolution proceedings) of every natme, arising directly or indirectly from this Agreement or in any manner relating to any of the following: (a) Breach of contract, obligations, representations or warranties; (b) Negligent or willful acts or omissions committed during performance of the Services; ( c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; ( d) Unauthorized use or disclosure of City's confidential and proprietary Information; ( e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual prope1iy rights of any third party. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim, in accordance with California Public Contract Code Section 9201. At City's request, Contractor will assist, City in the defense of a claim, dispute or lawsuit arising out of this Agreement. 11.3 Contractor's duties under this section are not limited to the Contract Price, workers' compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee. 11.4. Contractor's payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement, a purchase order, or other transaction. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory ce1iificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contractor's compensation or tern1inating the Agreement. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local, state and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor's ability to perform. Contractor is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act. Program Rock the Bike! Earth & Arbor Day Entertainment Professional/Consulting Contracts /Version: Nov 16. 2017 Page4 of8 13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a "public works" component, Contractor is required to comply with prevailing wage laws tmder Labor Code Section 1720 and other labor laws. 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired-lmniune Deficiency Syndrome (AIDS) or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777 and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or its employees or sub-contractors will not be tolerated. 13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of the California Code of Regulations. Contractor agrees to abide by the City's rules governing gifts to public officials and employees. 13.5 · Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek indemnification under Section 11 of this Agreement. 14. PROJECT COORDINATION City Project Manager. The City assigns Misty Mersich, Sustainability Manager as the City's representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. City reserves the right to substitute another Project manager at any time, and without prior notice to Contractor. Contractor Project Manager. Subject to City approval, Contractor assigns Justin Ancheta, Manager as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor's Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City's Project Manager about the progress with the work or any delays, as required under the Scope of Services. City written approval is required prior to substituting a new Representative. 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment, and will be Program Rock the Bike! Earth & Arbor Day Entertainment Professional/Consulting Contracts /Version: Nov 16, 2017 Page5 of8 given reasonable time to assemble the work and close out the Services. With City's pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum of ten percent (10%) of the total time expended to date in the performance of the Services. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Contractor closes out the Services and delivers the Work Product. 17. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator's award must be suppmied by law and substantial evidence and include detailed written findings of law and fact. 18. ATTORNEYFEES If City initiates legal action, files a complaint or cross-complaint, or pursues arbitration, appeal, or other proceedings to enforce its rights or a judgment in connection with this Agreement, the prevailing party will be entitled to reasonable attorney fees and costs. 19. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Agreement. 20. WAIVER Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City's waiver of a breach shall not constih1te waiver of another provision or breach. 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of every kind or nature between the Parties, and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties. Any modification of this Agreement will be effective only if in writing and signed by each Party's authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between the main Agreement and the attachments or exhibits thereto, the text of the main Agreement shall prevail. Program Rock the Bike! Earth & Arbor Day Entertainment Professional/Consulting Contracts /Version: Nov 16. 2017 Page6of8 22. INSERTED PROVISIONS Each provision and clause required by law for this Agreement is deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. The Parties will collaborate to implement this Section, as appropriate. 23. HEADINGS The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. 24. SEVERABILITY/PARTIAL INVALIDITY If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this Agreement to carry out its intent. 25. SURVIVAL All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law and Attorney Fees, shall survive the Agreement and remain in full force and effect. 26. NOTICES All notices, requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the date confinned by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino To Contractor: ------------10300 Torre Ave., Cupertino CA 95014 Rock the Bike! LLC Attention: Misty Mersich, Sustainability Manager Attention: _J_us_ti_·n_A_n_c_he_ta ________ _ Email: mistym@cup Email:justin@rockthebike.com 27. VALIDITY OF CONTRACT This Agreement is valid and enforceable only if (a) it complies with the purchasing and contract provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, as amended from time to time, (b) is signed by the City Manager or an authorized designee, and ( c) is approved for form by the City Attorney's Office. Program Rock the Bike! Earth & Arbor Day Entertainment Professional/Consulting Contracts /Version: Nov 16. 2017 Page 7 of8 28. EXECUTION The person executing this Agreement on behalf of Contractor represents and warrants that Contractor has full right, power, and authority to enter into and carry out all actions contemplated by this Agreement and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Contractor. This Agreement may be executed in cmmterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONTRACTOR Name Justin Ancheta Title Manager & Curator Date __ 3_/_1/~1 _8 ___ _ Tax I.D. No.:_ 27-4439857 FORM: Cupertino City Attorney ATTEST: ~rGr:ilii~ City Clerk CITY OF CUPERTINO A Municipal Corporation •- By~~ Name Msity Mersich Title Sustainability Manager Program Rock the Bike! Earth & Arbor Day Entertainment Professional/Consulting Contracts /Version: Nov 16, 2017 Page8of8 EXHIBIT A SCOPE OF SERVICES Rock the Bike Pedal Powered Stage entertainment services for City of Cupertino Annual Earth & Arbor Day event on April 21, 2018. Music, entertainment by Soul Graffiti DJ with live musicians. Rock the Bike mission: to harness the power of modem concert sound systems to bring people together in joy, dance, and song, but to do so with good clean Pedal Power, bypassing all of the dirty energy sources that are causing division and harm in the world, and replacing them with pure, honest, fun teamwork. To provide a living, breathing example that we are the power, and that doing the right thing for the planet also feels right to me. We aim to make the concert experience not just on par, but way better than it can be with traditional power sources. That's because Pedal Power gets the blood and endorphins flowing and literally engages the hearts of fans, inspiring social connections and dance, and giving performers the opportunity to be tmly supported by their fans. Rock the Bike to provide: •Audio Gear & Technician. Complete audio package including mies, stands, loudspeakers, cables, mixers, outboard gear, monitors, 1000-watt subwoofers, etc. Speakers have been specially modified to run directly from bike power generators. Experienced audio technicians who optimize the available pedal power for the most clean, clear sound. •4-Bicycle Pedal Power Generators for Sound. Our generators are stable, safe, and colorful, and fit a wide variety of people, from adult men to 7-year-old kids. We make sure to bring enough generators that pedal power feels moderately challenging-everyday people can contribute. Staff will be available to become ringer peddlers who can boost power levels as needed. • Pedal Power Coaching. Rock the Bike staff will find volunteers in the audience interested in riding on the bicycle generators and helping to power the stage and entertainment. All volunteers must sign the City's wavier before participating. •Soul Graffiti DJ with live musicians. Provide vocals and provide live music to entertain. Possible instruments include guitar or cello. Actual live musician instruments to be played will be determined within one week of event. •Pedal Power Education. 8' tall Pedalometers (power indicators) show pedalers exactly how hard to pedal. This displays the power generated by the pedalers, and tracks the consumption of our equipment and update the crowd throughout the event to maximize the educational potential of the activity. If appropriate, we provide a science lesson that satisfies your audience's curiosity about how our system works. Promotion: The City shall be entitled to advertise and promote the appearance of Rock the Bike at Earth & Arbor Day Festival on via print, website and social media. This includes pictures and use of logo. Parking: The City shall reserve a parking space for one vehicle in a location of close proximity to performance area. Stage Area: The stage area will be the blocked off street of Torre Ave near Rodriguez on the event day. Contractor will work with City on exact location and logistics a few days before the event. Set up of stage area needs to occur before 11 am. There will not be an actual stage, instead Contractor will use the asphalt ground. . ' EXHIBITB SCHEDULE OF PERFORMANCE The Earth & Arbor Day event is to be held 11 am to 3 pm on April 21, 2018 at Civic Center Plaza 10300 Torre Ave Cupertino, CA. Contractor will work with City as to the specifics of the event time line order, musical performances, logistics and layout of event. Set up of stage area needs to occur before 11 am. Below is a suggested timeline. 11:45-12:15-DJbegins 12:15--1:00 DJ+ Live musician/Looping 1:00-1:30 -DJ 1:30-2:15 -Live Musician-Looping/DJ sounds 2:15-3:00 -DJ 3:00 -DJ and pack up EXHIBIT C BUDGET Total budget not to exceed $3,000. City to pay $1,500 deposit, which will be provided to Contractor by March 15th, 2018. The remaining $1,500 to be paid after completion of Earth & Arbor Day event April 21, 2018. .--------------------------------------------·,..._. EXHIBITD Insurance Requirements Design Professionals & Consultants Contracts Consultant shall procure ptior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the following insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED 1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, apd personal and advertising injury with limits no less than $2,000,000 per occtmence (ISO Fo1m CG 00 01 ). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occmTence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory," will not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO Form CG 20 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 CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: As required by the State of California, with Statutory Limits and Employer's Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. Not required. Consultant has provided written ver[fication of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant's profession, with limits no less than $2,000,000 per occmTence or $2,000,000 aggregate. If written on a claims made form: a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date plior to the Contract Effective Date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of the Services. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Exh. D-Insurance Requirements for Design Professionals & Consultants Contracts Form UpdatedFeb. 2018 1 4 CUPERTINO February 27, 2018 OFFICE OF THE CITY MANAGER CITY HALL 10300 TORRE AVENUE• CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366 To: Randolph Hom, City Attorney Dear Mr. Hom, l would like to request that the City waive the requirement for Rock the Bike! LLC to provide Professional Liability insurance for its service of providing entertainment at the 2018 Earth & Arbor Day festival on April 21, 2018. Rock the Bike will be providing 4 bike powered generators, DJ, music and equipment to provide live entertainment at the community event. Professional liability is not standard for entertainers. David Brandt, City Manager City of Cupertino ROCKTHE-01 MLOPEZ ACORD' CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YYYY) ._____ 02/08/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), 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 ri!:1hts to the certificate holder in lieu of such endorsement(s). PRODUCER License # OL53977 ~R~!~cT Stephanie Maynes Prevot & Associates Insurance rft8.NJo, Ext): (408) 872-1322 103 J r..e~. No):(408) 647-2193 12280 Saratoga Sunnyvale Road Suite 216 i&1o"~~ss: SMaynes@PrevotAssociates.com Saratoga, CA 95070 INSURER/SI AFFORDING COVERAGE NAIC# INSURER A: Continental Casualtv 20443 INSURED INSURER B: Hartford Accident & Ind Co 22357 Rock The Bike, LLC INSURERC: 6323 San Pablo INSURER D: Oakland, CA 94608 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER· 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. ir.:i: TYPE OF INSURANCE ADDL SUBR POLICY NUMBER PC!!:.[CY EFF ,f.?,~JC;,Yv~, LIMITS •••~n OAn,n A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 -D CLAIMS-MADE [KJ OCCUR ~~~bgH9la~~J~~nce' 300,000 X 4030910101 08/06/2017 08/06/2018 $ MED EXP (Anv one nersonl $ 10,000 --PERSONAL & ADV INJURY $ 2,000,000 4,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ M POLICY O ~[8,= 0 LOG PRODUCTS • COMP/OP AGG $ 4,000,000 OTHER: $ A ~TOMOBILE LIABILITY PE~~~~~~~llNGLE LIMIT $ 1,000,000 ANY AUTO 4030910101 08/06/2017 08/06/2018 BODILY INJURY /Per oerson) $ -OWNED -SCHEDULED ------'-AUTOS ONLY -AUTOS BODILY INJURY (Per accident) $ X ~/lt'ffi; ONLY X ~8-rt~1f~t~ fFROPERTY 1~AMAGE $ Per accident - $ UMBRELLA LIAB HOCCUR EACH OCCURRENCE $ - EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED I I RETENTION$ $ B WORKERS COMPENSATION XI rl%uTE I I OTH- AND EMPLOYERS' LIABILITY ER YIN 57WECDW0704 01/11/2017 01/11/2018 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE [Y] E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? NIA 1,000,000 (Mandatory In NH) E.L. DISEASE • EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE • POLICY LIMIT $ 1,000,000 A 3rd Party Prop Dmg 4030910101 08/06/2017 08/06/2018 REPLACEMENT COST DESCRIPTION OF OPERATIONS/ LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space Is required) City of Cupertino is named additional insured where requested by written contract & allowed by law. CFRTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Cupertino THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 10300 Torre Avenue Cupertino, CA 95014 AUTHORIZED REPRESENTATIVE I ~~ ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD N :g 0 BLANKET ADDITIONAL INSURED AND LIABILITY EXTENSION ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESSOWNERS LIABILITY COVERAGE FORM BUSINESSOWNERS COMMON POLICY CONDITIONS TABLE OF CONTENTS I. Blanket Additional Insured Provisions A. Additional Insured -Blanket Vendors B. Miscellaneous Additional Insureds C. Additional Provisions Pertinent to Additional Insured Coverage 1. Primarll -Noncontributorll grovision 2. Definition of "written contract." II. Liabilitll Extension Coverages A. Bodilll lnjurll -Exganded Definition B. Broad Knowledge of Occurrence C. Estates, Legal Regresentatives and Sgouses D. Legal Liabilitll -Damage to Premises E. Personal and Advertising lnjurll -Discrimination or Humiliation F. Personal and Advertising lnjurll -Broadened Eviction G. Waiver of Subrogation -Blanket SB146932F (Ed. 6-16) 0 o I. BLANKET ADDITIONAL INSURED PROVISIONS gi ~ A. ADDITIONAL INSURED -BLANKET VENDORS 0 B Who Is An Insured is amended to include as an additional insured any person or organization (referred to below [:I ~ as vendor) with whom you agreed under a "written contract" to provide insurance, but only with respect to "bodily !!!!!!!!!!!! ---- ---- = -- injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business, subject to the following additional exclusions: 1. The insurance afforded the vendor does not apply to: a. "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; c. Any physical or chemical change in the product made intentionally by the vendor; d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; SB146932F (6-16) Page 1 of 7 Copyright, CNA All Rights Reserved. SB146932F (Ed. 6-16) e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; f. Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; g. Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or h. "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions contained in Subparagraphs d. or f.; or (2) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. 2. This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. 3. This provision 2. does not apply to any vendor included as an insured by an endorsement issued by us and made a part of this Policy. 4. This provision 2. does not apply if "bodily injury" or "property damage" included within the "products- completed operations hazard" is excluded either by the provisions of the Policy or by endorsement. B. MISCELLANEOUS ADDITIONAL INSUREDS 1. Who Is An Insured is amended to include as an insured any person or organization ( called additional insured) described in paragraphs 3.a. through 3.j. below whom you are required to add as an additional insured on this policy under a "written contract.": 2. However, subject always to the terms and conditions of this policy, including the limits of insurance, we will not provide the additional insured with: a. A higher limit of insurance than required by such "written contract"; b. Coverage broader than required by such "written contract" and in no event greater than that described by the applicable paragraph a. through k. below; or c. Coverage for "bodily injury" or "property damage" included within the "products-completed operations hazard." But this paragraph c. does not apply to the extent coverage for such liability is provided by paragraph 3.j. below. Any coverage granted by this endorsement shall apply only to the extent permitted by law. 3. Only the following persons or organizations can qualify as additional insureds under this endorsement: a. Controlling Interest Any persons or organizations with a controlling interest in you but only with respect to their liability arising out of: (1) such person or organization's financial control of you; or (2) Premises such person or organization owns, maintains or controls while you lease or occupy these premises; provided that the coverage granted to such additional insureds does not apply to structural alterations, new construction or demolition operations performed by or for such additional insured. SB146932F (6-16) Page 2 of? Copyright, CNA All Rights Reserved. --= b. Co-owner of Insured Premises SB146932F (Ed. 6-16) A co-owner of a premises co-owned by you and covered under this insurance but only with respect to the co-owners liability for "bodily injury", "property damage" or "personal and advertising injury" as co-owner of such premises. c. Grantor of Franchise Any person or organization that has granted a franchise to you, but only with respect to such person or organization's liability for "bodily injury", "property damage", or "personal and advertising injury" as grantor of a franchise to you. d. Lessor of Equipment Any person or organization from whom you lease equipment, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused in whole or in part by your maintenance, operation or use of such equipment, provided that the "occurrence" giving rise to such "bodily injury" or "property damage" or the offense giving rise to such "personal and advertising injury" takes place prior to the termination of such lease. e. Lessor of Land Any person or organization from whom you lease land, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of the ownership, maintenance or use of that specific part of the land leased to you, provided that the "occurrence" giving rise to such "bodily injury" or "property damage" or the offense giving rise to such "personal and advertising injury", takes place prior to the termination of such lease. The insurance hereby afforded to the additional insured does not apply to structural alterations, new construction or demolition operations performed by, on behalf of or for such additional insured. f. Lessor of Premises An owner or lessor of premises leased to you, or such owner or lessor's real estate manager, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of the ownership, maintenance or use of such part of the premises leased to you, and provided that the "occurrence" giving rise to such "bodily injury" or "property damage" or the offense giving rise to such "personal and advertising injury", takes place prior to the termination of such lease. The insurance hereby afforded to the additional insured does not apply to structural alterations, new construction or demolition operations performed by, on behalfof or for such additional insured. g. Mortgagee, Assignee or Receiver A mortgagee, assignee or receiver of premises but only with respect to such mortgagee, assignee, or receiver's liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of the ownership, maintenance, or use of a premises by you. This insurance does not apply to structural alterations, new construction or demolition operations performed by, on behalf of or for such additional insured. h. State or Political Subdivisions A state or government agency or subdivision or political subdivision that has issued a permit or authorization, but only with respect to such government agency or subdivision or political subdivision's liability for "bodily injury", "property damage" or "personal and advertising injury" arising out of: (1) The following hazards in connection with premises you own, rent, or control and to which this insurance applies: SB146932F (6-16) Page 3 of 7 (a) The existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, canopies, cellar entrances, coal holes, driveways, manholes, marquees, hoistaway openings, sidewalk vaults, street banners, or decorations and similar exposures; or {b) The construction, erection, or removal of elevators; or (c) The ownership, maintenance or use of any elevators covered by this insurance; or Copyright, CNA All Rights Reserved. . ' SB146932F (Ed. 6-16) (2) The permitted or authorized operations performed by you or on your behalf. But the coverage granted by this paragraph does not apply to: (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or government agency or subdivision or political subdivision; or (b) "Bodily injury" or "property damage" included within the "products-completed operations hazard." With respect to this provision's requirement that additional insured status must be requested under a "written contract", we will treat as a "written contract" any governmental permit that requires you to add the governmental entity as an additional insured. i. Trade Show Event Lessor With respect to your participation in a trade show event as an exhibitor, presenter or displayer, any person or organization .whom you are required to include as an additional insured, but only with respect to such person or organization's liability for "bodily injury", "property damage", or "personal and advertising injury" cause by: a. Your acts or omissions; or b. Acts or omissions of those acting on your behalf; in the performance of your ongoing operations at the trade show premises during the trade show event. j. Other Person or Organization Any person or organization who is not an additional insured under paragraphs a. through i. above. Such additional insured is an insured solely for "bodily injury", "property damage" or "personal and advertising injury" for which such additional insured is liable because of your acts or omissions. The coverage granted by this paragraph does not apply to any person or organization: (1) For "bodily injury," "property damage," or "personal and advertising injury" arising out of the rendering or failure to render any professional services; (2) For "bodily injury" or "property damage" included in the "products-completed operations hazard." But this provision (2) does not apply to such "bodily injury" or "property damage" if: (a) It is entirely due to your negligence and specifically results from your work for the additional insured which is the subject to the "written contract"; and (b) The "written contract" requires you to make the person or organization an additional insured for such "bodily injury" or "property damage"; or (3) Who is afforded additional insured coverage under another endorsement attached to this policy. C. ADDITIONAL PROVISIONS PERTINENT TO ADDITIONAL INSURED COVERAGE With respect only to additional insured coverage provided under paragraphs A. and B. above: 1. The BUSINESSOWNERS COMMON POLICY CONDITIONS are amended to add the following to the Condition entitled Other Insurance: This insurance is excess of all other insurance available to an additional insured whether primary, excess, contingent or on any other basis. However, if a "written contract" requires that this insurance be either primary or primary and noncontributing, then this insurance will be primary and non-contributory relative solely to insurance on which the additional insured is a named insured. 2. Under Liability and Medical Expense Definitions, the following definition is added: "Written contract" means a written contract or agreement that requires you to make a person or organization an additional insured on this policy, provided the contract or agreement: a. Is currently in effect or becomes effective during the term of this policy; and b. Was executed prior to: SB146932F (6-16) Page 4 of 7 Copyright, CNA All Rights Reserved. --- ~NA (1) The "bodily injury" or "property damage"; or (2) The offense that caused the "personal and advertising injury"; for which the additional insured seeks coverage. II. LIABILITY EXTENSION COVERAGES SB146932F (Ed. 6-16} It is understood and agreed that this endorsement amends the Businessowners Liability Coverage Form. If any other endorsement attached to this policy amends any provision also amended by this endorsement, then that other endorsement controls with respect to such provision, and the changes made by this endorsement to such provision do not apply. A. Bodily Injury -Expanded Definition Under Liability and Medical Expenses Definitions, the definition of "Bodily injury" is deleted and replaced by the following: "Bodily injury" means physical injury, sickness or disease sustained by a person, including death, humiliation, shock, mental anguish or mental injury by that person at any time which results as a consequence of the physical injury, sickness or disease. B. Broad Knowledge of Occurrence Under Businessowners Liability Conditions, the Condition entitled Duties In The Event of Occurrence, Offense, Claim or Suit is amended to add the following: Paragraphs a. and b. above apply to you or to any additional insured only when such "occurrence," offense, claim or "suit" is known to: (1) You or any additional insured that is an individual; (2) Any partner, if you or an additional insured is a partnership; (3) Any manager, if you or an additional insured is a limited liability company; (4) Any "executive officer" or insurance manager, if you or an additional insured is a corporation; (5) Any trustee, if you or an additional insured is a trust; or (6) Any elected or appointed official, if you or an additional insured is a political subdivision or public entity. This paragraph applies separately to you and any additional insured. C. Estates, Legal Representatives and Spouses The estates, heirs, legal representatives and spouses of any natural person insured shall also be insured under this policy; provided, however, coverage is afforded to such estates, heirs, legal representatives and spouses only for claims arising solely out of their capacity as such and, in the case of a spouse, where such claim seeks damages from marital common property, jointly held property, or property transferred from such natural person insured to such spouse. No coverage is provided for any act, error or omission of an estate, heir, legal representative or spouse outside the scope of such person's capacity as such, provided however that the spouse of a natural person Named Insured and the spouses of members or partners of joint venture or partnership Named Insureds are insureds with respect to such spouses' acts, errors or omissions in the conduct of the Named lnsured's business. D. Legal Liability -Damage To Premises 1. Under B. Exclusions, 1. Applicable to Business Liability Coverage, Exclusion k. Damage To Property, is replaced by the following: k. Damage To Property "Property damage" to: 1. Property you own, rent or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of SB146932F (6-16) Page 5 of 7 Copyright, CNA All Rights Reserved. . . SB146932F (Ed. 6-16) such property for any reason, including prevention of injury to a person or damage to another's property; 2. Premises you sell, give away or abandon, if the "property damage" arises out of any part of those premises; 3. Property loaned to you; 4. Personal property in the care, custody or control of the insured; 5. That particular part of any real property on which you or any contractors or subcontractors working directly or indirectly in your behalf are performing operations, if the "property damage" arises out of those operations; or 6. That particular part of any property that niust be restored, repaired or replaced because "your work" was incorrectly performed on it. Paragraph 2 of this exclusion does not apply if the premises are "your work" and were never occupied, rented or held for rental by you. Paragraphs 1, 3, and 4, of this exclusion do not apply to "property damage" (other than damage by fire or explosion) to premises: (1) rented to you: (2) temporarily occupied by you with the permission of the owner, or (3) to the contents of premises rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to Damage To Premises Rented To You as described in Section D - Liability and Medical Expenses Limits of Insurance. Paragraphs 3, 4, 5, and 6 of this exclusion do not apply to liability assumed under a sidetrack agreement. Paragraph 6 of this exclusion does not apply to "property damage" included in the "products-completed operations hazard." 2. Under B. Exclusions, 1. Applicable to Business Liability Coverage, the following paragraph is added, and replaces the similar paragraph, if any, beneath paragraph (14) of the exclusion entitled Personal and Advertising injury: Exclusions c, d, e, f, g, h, i, k, I, m, n, and o, do not apply to damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner or to the contents of premises rented to you for a period of 7 or fewer consecutive days. A separate limit of insurance applies to this coverage as described in Section D. Liability And Medical Expenses Limits Of Insurance. 3. The first Paragraph under item 5. Damage To Premises Rented To You Limit of the section entitled Liability And Medical Expenses Limits Of Insurance is replaced by the following: The most we will pay under Business Liability for damages because of "property damage" to any one premises, while rented to you or temporarily occupied by you with the permission of the owner, including contents of such premises rented to you for a period of 7 or fewer consecutive days, is the Damage to Premises Rented to You limit shown in the Declaration. E. Personal and Advertising Injury-Discrimination or Humiliation 1. Under Liability and Medical Expenses Definitions, the definition of "personal and advertising injury" is amended to add the following: h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person, but only if such discrimination or humiliation is: (1) Not done intentionally by or at the direction of: (a) The insured; or SB146932F (6-16) Page 6 of7 Copyright, CNA All Rights Reserved. "' :g 0 S8146932F (Ed. 6-16) (b) Any "executive officer," director, stockholder, partner, member or manager (if you are a limited liability company) of the insured; and (2) Not directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person or person by any insured. 2. Under B. Exclusions, 1. Applicable to Business Liability Coverage, the exclusion entitled Personal and Advertising injury is amended to add the following additional exclusions: (15)Discrimination Relating to Room, Dwelling or Premises Caused by discrimination directly or indirectly related to the sale, rental, lease or sub-lease or prospective sale, rental, lease or sub-lease of any room, dwelling or premises by or at the direction of any insured. (16) Employment Related Discrimination Discrimination or humiliation directly or indirectly related to the employment, prospective employment, past employment or termination of employment of any person by any insured. (17) Fines or Penalties Fines or penalties levied or imposed by a governmental entity because of discrimination. 3. This provision (Personal and Advertising Injury -Discrimination or Humiliation) does not apply if Personal and Advertising Injury Liability is excluded either by the provisions of the Policy or by endorsement. F. Personal and Advertising Injury· Broadened Eviction Under Liability and Medical Expenses Definitions, the definition of "Personal and advertising injury" is amended to delete Paragraph c. and replace it with the following: c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room dwelling or premises that a person or organization occupies committed by or on behalf of its owner, landlord or lessor. G. Waiver of Subrogation -Blanket We waive any right of recovery we may have against: a. Any person or organization with whom you have a written contract that requires such a waiver. ;;; All other terms and conditions of the Policy remain unchanged. ~ g g g "' == = S8146932F (6-16) Page 7 of 7 Copyright, CNA All Rights Reserved. Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers ("Additional Insureds") are to be covered as additional insureds on Consultant's CGL policy. General Liability coverage can be provided in the fonn of an endorsement to Consultant's insurance (at least as broad as ISO Form CG 20 10 (11 / 85) or both CG 20 10 and CG 20 3 7 forms, if later editions are used). Primary Coverage Coverage afforded to City/ Additional Insureds shall be primaty insrnance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant's insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Consultant waives any right to subrogation against City/ Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City's option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/ Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better. Verification of Coverage Consultant must furnish acceptable insurance certificates and mandatory endorsements ( or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time duringthe Contract term. Subconsultants Consultant shall require and verify that all snbconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant' s insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and/ or higher limits than the minimums shown above, City shall be entitled to coverage for the higher insurance limits maintained byConsultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk, prior experience, insurer or other special circumstances, with not less than ninety (90) days prior written notice. Exh. D-Insurance ll.equirernent ... \~for Design .1.0 rojf!ssionals & Consultants Contracts Fon;; UpdatedFeb. 2018 2