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18-059 Economic & Planning Systems Inc., Vallco Town Center Project Application Economic Advisory ServicesCITY OF m PROFESSIONAL/CONSULTING SERVICES AGREEMENT CUPERTINO 1. PARTIES This Agreement is made and entered into as of_A~p_r_il _6~,_2_0_1_8 ____________ _ ("Effective Date") by and between the City of Cupertino, a mun icipal corporation ("City"), and Economic & Planning Sy stems , Inc. ("Contractor"), a cor oration for Vallco Town Center Project Application E conomic Ad v isory Servi ces 2 . SERVICES Contractor agrees to provide the services and perfom1 the tasks ("Services") set fmih in detail in Scope of Services, attached here and inco1vorated as Exhibit A. 3. TIME OF PERFORMANCE 3.1 This Agreement begins· on the Effective Date and ends on June 30 , 2 019 ("Contract Time"), unless tenninated earlier as provided herein. Contractor's Services shall begin on April 6 , 2 018 and shall be completed by_J_m_1e_~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. C01V1PENSATI0N 4.1 Maximum Compensation. City will pay Contractor for satisfactory perfonnance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $45 ,000.00 ("Contract Price"), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated h ere. The maximum compensation includes all expenses and reimbursements and \Vill remain in place even if Contractor's actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City. 4.2 Invoices and Payments. Monthly invoices must state a description of the deliverable completed and the amount due for the preceding month. Within thirty (30) days of completion of Services, Contractor must submit a requisition for final and complete payment of costs and pending claims for City approval. Failure to timely submit a complete and accurate payment requisition relieves City of any further payment or other obligations under the Agreement. Project Va llco Town Center Prqfess iona/!Consu/ting Contracts /Version: No1· I 6, 20 / 7 Page I of8 5. INDEPENDENT CONTRACTOR 5.1 Status. Contractor is an independent contractor and not an employee, partner, or joint venture of City. Contractor is solely responsible for the means and methods of performing the Services and for the persons hired to work under this Agreement. Contractor is not entitled to health benefits , worker's compensation or other benefits from the City . 5.2 Contractor's Qualifications. Contractor wa1rnnts 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 standmds a11d 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, a11d/or certified to perfo1111 the Services as required by law and have procured a City Business License. 5.4 Subcontractors. Only Contractor's employees a1·e 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 perfonn 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 perfo1111ing 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 da1naging to City. Contractor shall hold in confidence all City info1111ation provided by City to Contractor and use it only to perfonn 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 proptietary data. 7. O\VNERSHIP OF MATERIALS 7.1 Property Rights . Any interest (including copyTight interests) of Contractor in any product, memoranda, study, report, map , plan, drmving. specification , data, record, document or other infonnation or v,;ork, 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 ofU.S. Code, all Work Product arising out of this Agreement is considered '\:vorks 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. Project Vallco Town Center Pn!fessional/Con s ulting Contracts /Version: No ,· I 6, 2017 Page 2 of 8 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 copyTighted intellectual properiy if incorporated into the Services or Work Product of this Agreement. 7.4 Re-Use of \Vork 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 Contrnctor 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 01iginal. 8. RECORDS Contractor must maintain complete and accurate accounting records relating to its perfonnance 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 thereaner, will reference the City 's contributions in making the proj ec t possible. The words '"City of Cupertino" will be displayed in all pieces of publicity, including flyers , press releases , posters, brochures, public service announcements, intervie\vs and newspaper aiiicles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Contract, without prior \vritten approval from the City. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law , and except for losse s caused by the so le and active negligence or willful misconduct o f City personnel, Contractor shall indemnify, defend and hold Project Va ll ee Town Cente r Professiona/l C<msulting ContraCls !Vers ion: No ,· 16, 2017 Page 3 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 proc eedings) of every nature, arising directly or indirectly from this Agreement or in any mam1er relating to any of the following: (a) Breach of contract, obligations, representations or wananties; (b) Neg lig ent or willful acts or omissions committed dming performance of the Services; (c) Personal injury, property damage , or economic loss resulting 1i0111 the work orperfonnance 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 int ellectua l prope11y rights of any third pai1y. 11.2 Contractor must pay the costs City incms in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-pa11y 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 th e 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 Exhi bit D, and must maintain the in surance for the duration of the Agreement, or longer as required by City. City wi ll not execute the Agreement w1til City approves receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Failure to comply with this provision may result in City, at its sole discretion and without notice, purchasing insurance for Contractor and deducting the costs from Contrnctor 's compensation or tenninating the Agreement. 13. COMPLIANCE \\ITH LA \VS 13.1 General Laws. Contractor shall comp ly with all local, state a11d federal laws and regulations applicable to this Ag reement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor's abi lit y to perform. Contractor is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Refonn and Control Act. Project Vallco Town Center PrCJ/ess ional/Consulting Conlrac1s /Vers ion: No,· 16 , 2017 Page 4 of 8 13.2 Labor Laws. Contractor shall comply with all labor laws app licable to this Agreement. If the Scope of Services includes a "public works" component, Contractor is required to comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. 13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race, religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital status, pregnancy, age , sex, gender, sexual orientation, gender identity, Acquired-Immune Deficiency Syndrome (AIDS) or any other protected classification. Contractor shall comply with all anti-discrimination laws, including Govenunent 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. Contrnctor shall comp ly with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor waITants 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 Govenunent Code Section 1090 et seq. Contractor may be required to file a conflict of interest fom1 if Contractor makes ce1tain govermnental 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 rnles 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 indenmification under Section 11 of this Agreement. 14. PROJECT COORDINATION City Project Manager. The City assigns P iu Ghosh 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 B enj a min Si gma n ______ as its single Representative for all pmvoses 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 Perfomrnnce. 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 Project Va llco Town Cente r Pn,jessiono/1Consulting Contrac1.1· !Vers ion: No,· I 6, 2017 Page 5 of 8 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 perfo1mance of the Services. 16. TERMINATION City may ten11inate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of tem1ination, 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 p1ior to filing a civil action in court. If a dispute mises, Contractor must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator's award must be supported by law and substantial evidence and include detailed written findings of law and fact. 18. ATTORNEY FEES If City initiates 1 egal action, files a complaint or cross-complaint, or pursues arbitration, appeal , or other proceedings to enforce its rights or a judgment in c01mection 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. \VAIVER Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City's waiver of a breach shall not constitute waiver of another provision or breach. 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of every kind or nature between the Parties , and supersedes any other agreement(s) and understanding(s), either oral or written, betv.reen 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 attaclu11ents or exhibits thereto, the text of the main Agreement shall prevail. Project Vallee Town Center Profess ion al/Consulting Contracts /Vers ion: No,· 16 , 20 17 Page 6 of 8 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 Sect ion , as appropriate. 23. HEADINGS The headings in this Agreement are for convenience only, a.re not a part of the Agreement and in no way affect , limit or amplify the te1ms or provisions of this Agreement. 24. SEVERABILITY/PARTIAL INVALIDITY If any tenn or provision of this Agreement, or their application to a particular situation, is found by the comt to be void, invalid, illegal or unenforceable, such te1m 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 Pa1ties agree to work in good faith to amend this Agreement to carry out its intent. 25. SURVIVAL All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law and Attorney Fees, shall survive the Agreement and remain in full force and effect. 26. NOTICES All notices, requests and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery or the date confirmed by a reputable overnight delivery service, on the fifth calendar day after deposit in the United States Mai l, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupe1tino 10300 Torre Ave., Cupertino CA 95014 Attention: Piu Ghosh -------------Em a i 1: PiuG @ cupertino.org 27 . VALIDITY OF CONTRACT To Contractor: Economic & Planning Services, Inc. One Kaiser Plaza, Suite 1410 , Oakland , CA 946 12 Attention: Benjamin Sigman Email: bsigman@epsys.com This Agreement is valid and enforceable only if (a) it complies with the purchasing and contrnct 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 fonn by the City Attorney's Office. Project Yallco Town Cente r Prqfess ional/Consu lting ContraCls /Version: Nm· 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 counterparts, each one of which is deemed an original and all of which, taken together, constitute a single binding instrument. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed . CONTRACTOR Economic & Planning Systems, Inc . ~~· . ".=====---" Name Benjamin C. Sigman Title Principal Date 4/6/2018 Tax I.D. No.: 94-3056856 ------- Cupertino City Attorney A~~ GRACE SCHMIDT L/ ,... ']i.{-( O City Clerk Pro iec( Project Vallee Town Center Va ll ee Town Center Page8 of8 CITY OF CUPERTINO A Municipal Corporation By A~ Name Aarti Shrivastava Title Assistant City Manager Date <21;/Ll?jft Professional/Consulting Co ntracts /Ve rsion: Nov 16, 2017 I. Economic & Planning Svstems, Inc. One Kaiser Plaza, Suite 1410 Oakland, CA 94612 5108419190tel 510 740 2080 fax Oakland Sacramento Denver Los Angeles www.epsys.com April 4, 2018 Ms. Piu Ghosh Principal Planner City of Cupertin o 10300 Torre Avenue Cupertino, CA 95014-3255 Subject: Vallco Town Center Project Application Economic Advisory Services; EPS #181058 Dear Piu: Economic & Planning Systems (EPS) is pleased to submit this letter proposa l to assist the City of Cupertino (City) with Vallco Town Center Project Application Economic Advisory Services. EPS is uniquely positioned to leverage existing research and analysis to assist Cupertino with this engagement. In pa rticu lar, EPS envisions relying on market research and leveraging financia l analysis developed as part of the ongoing Specific Plan effort. In addition, we anticipate that this review wil l be a collaborative effort with the City, other consultants, and outside counsel. EPS has a proven track record of working quickly and effectively with City staff and outside experts to provide thorough and well-documented economic research and analysis . We propose to assist the City by review i ng the applicant's proposal and financial documentation, providing independent analysis of the financial viability of the project, and documenting findings in technical memoranda or other formats, as needed . Due to uncertainty in the leve l of effort required, EPS proposes to execute services on a time-and- materials basis w ith a not-to-exceed budget cap, with specific techn ica l tas ks and deliverables to be agreed upon in advance with City staff. We understand that on March 27 Sand Hill Property Company filed an app lication for the Vallco Town Center Project, pursuant to SB 35. While SB 35 permits a streamlined m in isterial approval process, the proposed development must satisfy "specified plann i ng objective standards ." The current Vallco proposal includes about 1.8 million square feet of office space, 400,000 square feet of retai l, and 2,402 housing units. In proposing only 400,000 square feet of retail, the applicant is requesting a concession that wa ives the General Plan re quirement that the site "maintain a m inimum of 600,000 square feet of retail." T he City is seeking financial ana lysis to evaluate whether the proposed concession is necessary from a financial f eas ibility standpoin t. Val/co Town Center Project Application April 4, 2018 Page 2 As part of the propo sed effort, EPS will attend a project initiation meeting (in person or by phone) to clari f y the scope and schedule for the engagement, review background documents and other in format ion , and d isc uss key issues to be addressed through techn ical economic and financial research and a n a lysis efforts. EPS also wi ll coord i nate with City staff to establish a projected t i me l ine fo r the engagement, with target dates for potentia l check-in calls and meetings, draft and fina l de l iverables, and other key milestones . It is expected tha t a pri mary requ i rement of this engagement wi ll be a thorough review of the app l icant's fi nancial j ust ificat ion for the concess ion request. EPS wi l l review the applicant's analytical framework, market assumptions, cost estimates, and financial rate of return, if these data are made available. Further, it is anticipated that the effort may require independent financial ana lys is of the applicant's proposed project. Building on proforma financia l feasibility m ode ls deve lope d for t h e Speci f ic Pla n process, EPS is able t o test of development a lternatives and key real estate development variables. These "static" (stabi l ized year) proforma financial models allow EPS to produce rate-of-return estimates for as-of-right and proposed project alternatives. Once the technical analysis is completed, and at the City's request, EPS would prepare documentation (e.g ., a technica l memorandum) that details the analytical work performed. The memorandum would present the key findings, research methodology, calculations, and include supporting tables and charts. EPS also is available to prepare presentation materials and attend meetings and hearings, as needed. While the precise level of effort required to adequately support the City with this effort is not well known at this time, EPS proposes a not-to-exceed budget cap of $45,000, including up to $15,000 for engineering/cost analysis support services to be subcontracted by EPS. Depending on the specific requirements of the engagement, to be agreed upon with the City, the actual leve l of effort may be more or less. Any efforts requ i red that exceed the proposed budget cap would be agreed upon as part of a contract amendment. Charges for EPS labor are based on the amount of time actually spent . Please find EPS hourly rates for 2018 attached. Expenses for data , report production, and other project-related items are billed at cost. Invoices are submitted month ly and are payab le upon receipt. I am personally committed to the success of the engagement and will act as Principal-in-Charge. The effort will be supported by the experienced and talented EPS staff in our Oakland office . I welcome the opportunity to discuss this proposal and also would be pleased to supply any add itiona l information you may require . Please contact me at (510) 841-9190 or at bsig ma n@epsys.com. Sincerely, ECONOMIC & PLANNING SYSTEMS , INC. ~~~~ Benjamin C. Sigman Principal M: \Proposafs \181000\ 181058ViJ//coS835\1 SJ 058_ Vallco.5835_ptxt.cfocx EPS 2018 HOURLY BILLING RATES Managing Principal $275-$315 Senior Principal $315 Principal $25 5 Executive/Senior Vice President $235 Vice President $215 Senior Technical Associate $21 5 Senior Associate $195 Associate $160 Research Analyst II $135 Research Analyst I $90 Production and Admin is trative Staff $90 Billing rates updated annually. M: \Proposals \18 IOOO \.ZB 1 OSBVil/JcoSB.35\ 1 SJ 058_ Va//co5835_ptxt. docx EXHIBITD Insurance Requirements Design Professionals & Consultants Contracts Consultant shall procure prior to commencement of Services and maintain for the duration of the contract, at its own cost and expense, the fol lowing insurance policies and coverage with companies doing business in California an d acceptable to City . INSURA1'1CE POLICIES AND MINIMUMS REQUIRED l. Commercial General Liability (CGL) for bodily injury, property damage, personal inj wy liability for premises operations, products and completed operations, contractual liability, and personal and adve1iising injmy with limits no less than $2,000,000 per occurrence (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 sha ll 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 sha ll be "primary and non-cont1ibutory," will not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO Fom1 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 sha ll contain or be endorsed to contain a provision that such coverage shall also apply on a primmy and non-contribut01y 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 lim its no less than $1,000,000 per accident for bodily injury and prope1iy damage. 3. Workers' Compensation: As required by the State of California, with Statuto1y Limits and Employer's Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease . D Not required. Consultant has prcwided 1·vritte11 ver({ication of no employees. 4. Professional Liability for professional acts , errors and omissions, as appropriate to Consultant's profession, with limits no less than $2,000,000 per occurrence or $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, m1d not replaced with another claims-made policy fom1 with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of the Services. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Exh. D-Jnsurance Requirements for Desig11 Professionals & Consultants Contracts Form Updat ed Feb. 2018 1 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 fon11 of an endorsement to Consultant's insurance (at least as broad as ISO Fo1111 CG 20 10 (11 / 85) or both CG 20 10 and CG 20 3 7 fonns, if later editions are used). PrimaIJ' Coverage Coverage afforded to City/Additional Insureds shall be primary insmance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volw1teers shall be excess of Consultant's insmance and shall not contribute to it. l\Totice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with \.vritten 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 perfom1ed b y 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 in surer. 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 lo sses 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 oflnsurers Insurers must be licensed to do business in California with an AM. 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 tc1111. Subconsultants Consultant shall require and ve1ify that all subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant's in surance policies. Higher Insurance Limits If Consultant maintains broader coverage and /or higher limits than the minimwns shown above, City shall be entitled to coverage for the higher in surance limits maintained by Consultant. A dequacy of Coverage City reserves the right to modify these insurance requirements/coverage ba sed on the nature of the risk , prior expe1ience, insurer or other specia l c ircumstances , with not les s than ninety (90) da ys prior written notice. Exh. D-J11sura11ce R equire m e nts for D esign Professionals & Con s 11lta11ts Contracts Form Updated Feb. 2018 2 ACORD® CERTIFICATE OF LIABILITY INSURANCE I DA TE (MM/DD/YYYY) \,.,.......-/ 4/6/2018 THIS CERTIFICATE IS ISSUED AS A MATIER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND , EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIF ICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed . If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain polic ies may require an endorsement. A statemen t on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTAC T NAME: Andreini & Company-San Mateo iA~;:>NJ~ i=vH 650-573 -1 111 I FAX 220 West 20th Ave /A/C Nol: 650-378-4361 San Mateo CA 94403 ~~D~~ss : ktotten@andreini.com INSURER(S) AFFORDING COVERAGE NAIC# INSURER A: Federal Insurance Company I 20281 INSURED ECON0-5 INSURE R B: Reoublic In demnity Co of Calif 43753 Econom ic & Planning Systems INSURER c : Continental Casua lty Company 20443 400 Capitol Ma ll , 28th Floor Sacramento CA 95814 INSURER P: INSURER E: INSUR ER F : l COVERAGES CERTIFICATE NUMBE R: 792145055 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PER IOD INDICAT ED. NOTWITHSTAND ING ANY REQU IREMENT. TERM OR CONDI TI ON OF ANY CONTRACT OR OTHER DOCUMENT WI TH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO AL L THE TERMS, EXCLUS IONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 1r1: 1 TYPE OF INSURANCE i GEN'L AGGREGATE LIMIT APPLIES PER: i I POLICY D fr8r D Loc ~.-, ! X j OTHER: Per Project/Loe A ! AU TOMOBILE LIABILITY n ANY AUTO LJ ~0'TiEs° ONLY I X i ~LRT"6's ONL y ! ~ i SCHEDULED ; AUTOS [ X NON-OWNED i AUTOS ONLY i ~OCCUR I I I CLAIMS-MADE i I OED ! I RETENTION $ B i WORKERS COMPENSATION i AND EMP LOYERS' LIABILI TY i ANYPROPR IETOR/P ARTNER/EXECUT IVE i OFFICER iMEMBEREXCLUDED? ! (Mandatory in NH) ! If yes , describe under i DESCRIPTION OF OPERATIONS below C Errors & Omissions Adv/Personal Injury Retro 1/1/83 [ADDL /SUBR ! 1a,.1c-n j t Antn POLICY NUMBER 35929623\/VC E 73558745 79871994 16150815 425343942 POLICY EFF I POLICY EXP /MM/DD/YYYY\ !MM/DD/YYYY\ 4/1/2018 4/1/2019 4/1/2018 4/1/2019 4/1/2018 4i1 /2019 4/1/2018 4i1/2019 4/1/2018 4/1/2019 LIMITS EACH OCCURRENCE S 1.000 .000 DAMAGE TO RENTED PREMISES /Ea occurrence) S 1.000 ,000 MED EXP (A ny one person) S 10 ,000 PERSONAL & ADV INJURY S excluded GENERAL AGGREGATE S 3.000.000 PRODUCTS -COMP/OP AGG S 3,000,000 Per Projecl Agg S 3,000 .000 BODILY INJURY (Per person) S BODILY INJURY (Per accident) S PROPERTY DAM AGE !Per accident\ s EACH OCCURRENCE S 1.000 .000 I AGGREGATE s ~-L~~~TUTE J__ I ~~H-_ ---------------- __ E.L. EACH ACCIDENT __ S 1,000 ,000 -···-···-········--·--- E.L. DISEASE -EA_EMPLOYEE .. s __ 1.ooo ,ooo --·--_ E.L . DISE AS E -POLICY LIMIT S 1.000.000 Pe r Claim Annual Aggregate 2,000,000 2.000,000 DESCR IPT ION OF OPERATIONS /LOCATIONS/ VEHICLES (ACORD 101, Additiona l Remarks Schedu le, may be attached if more space is required) EPS# 181058 City of Cupertino, its City Council , boards and commissions , officers , officials , employees, agents, servants and volunteers are additiona l insured on a primary and non-contributory basis with regard to Genera l and Auto Liabi li ty and Waivers of Subrogation app ly per attached policy provisions. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Cupertino 10300 Torre Ave AUTHORIZED REPRESENTATIVE Cupertino CA 95014 ·// < ' .,(,7 , l, rJ / 'I-):>jf,;:;---? t / .,,-· , . .·-:,k ! ...<-'--(~, ,0~-·.... -'I;;.• .._ ... © 1988-2015 ACORD CORPORATION. All rights reserved . ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD Policy #73558746 19 Mobile Equipment Subject To Comp ulsory O r Financial Responsibi lity Or Other Moto r Vehicle Insura nce Law On lv Only those "autos" that are land vehicles and that would qua lify under the definition of "mobile equipment" under this policy if they were not subject to a compulsory o r financial responsibility law or other motor vehicle insurance law where they are licensed or principally garaged. B. Owned Autos You Acquire After The Policy Begins 1. If Symbols 1, 2, 3, 4, 5, 6 or 19 are entered next to a cove rage in Item Two of t he Declarations, t hen you have coverage for "autos" that you acquire of the type described for the remainde r of the policy period. 2. But , if Symbo l 7 is entered next to a coverage in Item Two of the Declarat ions, an "auto" you acqui re wi ll be a covered "auto" for that coverage on ly if: a. We already cover all "autos" that you own for that coverage or it replaces an "auto" you previously owned that had that coverage; and b. You te ll us within 30 days after you acquire it that you want us to cover it for that coverage. C. Certain Trailers, Mobile Equipment And Temporary Substitute Autos If Covered Autos Liability Coverage is provided by this Coverage Form, the following types of vehicles are also covered "autos" for Covered Autos Liability Coverage: 1. "Trailers" w ith a load capac ity of 2,000 pounds or less designed prima ril y fo r travel on public roads. 2 . "Mobile equipment" while being carried or towed by a covered "auto". 3. Any "auto" you do not own wh ile used with the permission of its owner as a temporary substitute for a covered "auto" you own that is out of service because of its: a. Breakdown; b. Repair; c. Servicing; d . "Loss"; or e. Destruction. SECTION II -COVERED AUTOS LIABILITY COVERAGE A. Coverage We w ill pay a ll sums an "insured " lega ll y must pay as damages because of "bodily injury" o r "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto". We will a lso pay all sums an "insured" legally must pay as a "covered pollution cost or expense" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of covered "autos". However, we wil l only pay for the "covered pollution cost or expense" if there is either "bodily injury" or "property damage" to which this insurance applies that is caused by the same "accident". We have the right and duty to defend any "insured" against a "suit" asking for such damages or a "covered pollution cost or expense". However, we have no duty to defend any "insured" against a "suit" seeking damages for "bodily injury" or "property damage" or a "covered pollution cost or expense" to which this insurance does not apply. We may investigate and settle any claim or "suit" as we consider appropriate. Our duty to defend or settle ends when the Covered Autos Liab ility Coverage Limit of Insurance has been exhausted by payment of judgments or settlements. 1 . Who Is An Insured The fo ll owing are "insureds": a. You for any covered "auto". b. Anyone else while using with your permission a covered "auto" you own, hire or borrow except: (1) The owner o r anyone else from whom you hire or borrow a covered "auto". This exception does not apply if the covered "auto" is a "trailer" connected to a covered "auto" you own. Page 2 of 12 © Insurance Services Office , Inc ., 2011 CA00011013 (2) Your "emplo yee" if the covered "auto" is owned by t hat "employee" or a member of his or her household. (3) Someone using a covered "auto" while he or she is working in a business of selling , servicing , repairing , parking or storing "autos" unless that business is yours. (4) Anyone other than your "employees", partners (if you are a partne rsh ip), members (if you are a limited liability company) or a lessee or borrower or any of their "employees", while moving property to or from a covered "auto". (5) A partner (if you are a partnership) or a member (if you are a limited liability company) for a covered "auto" owned by him or her or a member of his or her household . c . Anyone liable for the conduct of an "insured" described above but only to the extent of that liabil ity. 2 . Coverage Ext e n sions a. S upplem en t ary Payment s We will pay for the "insured": (1) All expenses we incur. (2) Up to $2 ,000 for cost of bail bonds (including bonds for related traffic law violations) required because of an "accident" we cover. We do not have to furnish these bonds. (3) The cost of bonds to release attachments in any "suit" against the "insured" we defend, but only for bond amounts within our Limit of Insurance. (4) All reasonable expenses incurred by the "insured" at our request , including actual loss of earnings up to $250 a day because of time off from work. (5) All court costs taxed against the "insured" in any "suit" against the "insured" we defend . However, these payments do not include attorneys' fees or attorneys' ex penses taxed against the "insured". (6) All interest on the full amount of any judgment that accrues after entry of the judgment in any "suit" against the "insured" we defend , but our duty to pay inte rest ends when we have paid , offered to pay or deposited in court the part of the judgment that is within our Lim it of Insura nce. These payments will not reduce the Limit of Insurance. b. Out-of-state Coverage Extensions While a covered "auto" is away from the state where it is licensed, we will : (1) Increase the Limit of Insurance for Covered Autos Liability Coverage to meet the limits specified by a compulsory or financial responsibility law of the jurisdiction where the covered "auto" is being used. This extension does not apply to the limit or limits specified by any law governing motor carriers of passengers or property. (2) Provide the minimum amounts and types of other coverages , such as no- fault , required of out-of-state vehicles by the jurisdiction where the covered "auto" is being used. We will not pay anyone more than once for the same elements of loss because of these extensions . B. Exclusions This insurance does not apply to any of the following: 1. Expected Or Intended Injury "Bodily injury" or "property damage" expected or intended from the standpoint of the "insured". 2. Contractual Liability assumed under any contract or agreement. But this exclusion does not apply to liability for damages: a. Assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement ; or b. That the "insured" would have in the absence of the contract or agreement. 3. Workers' Compensation Any obligation for which the "insured" or the "insured 's" insurer may be held liable under any workers ' compensation , disability benefits or unemployment compensation law or any sim ilar law . CA000110 13 © Insurance Services Office, Inc., 2011 Page 3 of 12 4. Loss Payment -Physical Damage Coverages At our option, we may: a . Pay for, repair or replace damaged or stolen property; b. Return the stolen property, at our expense. We will pay for any damage that resu lts to the "auto" from the theft; or c. Take all or any part of the damaged or stolen property at an agreed or appraised value. If we pay for the "loss", our payment wi ll include the app licable sa les tax for the damaqed or sto le n property. 5. Transfer Of Rights Of Recovery Against Others To Us If any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another , those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after "accident" or "loss" to impair them. B. General Conditions 1. Bankruptcy Bankruptcy or insolvency of the "insured" or the "insured's" estate will not relieve us of any obligations under this Coverage Form. 2. Concealment, Misrepresentation Or Fraud This Coverage Form is void in any case of fraud by you at any time as it relates to this Coverage Form. It is also void if you or any other "insured", at any time, intentionally conceals or misrepresents a materia l fact concerning: a. Th is Coverage Form; b. The covered "auto"; c . Your interest in the covered "auto"; or d. A claim under this Coverage Form. 3. Liberalization If we revise this Coverage Form to provide more coverage without additional premium charge, your pol icy wi ll automatically provide the additional coverage as of the day the revision is effective in your state. 4. No Benefit To Bailee -Physical Damage Coverages We will not recognize any assignment or grant any coverage for the benefit of any person or organization holding, storing or transporting property for a fee regardless of any other provision of this Coverage Form . 5. Other Insurance a. For any covered "auto" you own , this Coverage Form provides primary insurance. For any covered "auto" you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance. However, while a covered "auto" which is a "trailer" is connected to another vehicle, the Covered Autos Liability Coverage this Coverage Form provides for the "trailer" is: (1) Excess while it is connected to a motor vehicle you do not own; or (2) Pr imary whi le it is connected to a covered "auto" you own. b. For Hired Auto Physical Damage Coverage, any covered "auto" you lease , hire, rent or borrow is deemed to be a cove red "auto" you own. However, any "auto" that is leased , hired, rented or borrowed with a driver is not a covered "auto". c. Regardless of the provisions of Paragraph a. above, this Coverage Form's Covered Autos Liability Coverage is primary for any liability assumed under an "insured contract". d. When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the tota l of the limits of all the Coverage Forms and policies covering on the same basis . 6. Premium Audit a. The est imated premium for this Coverage Form is based on the exposures you told us you would have when this policy began. We will compute the final premium due when we determine your actual exposures. The estimated total premium will be credited against the final premium due and the first Named Insured will be billed for the balance , if any. The due date for the final premium or retrospective premium is the date shown as the due date on the bill. If the estimated total premium exceeds the final premium due, the first Named Insured will get a refund. b. If this policy is issued for more than one year, the premium for this Coverage Form will be computed annually based on our rates or premiums in effect at the beg inning of each year of the policy. CA00011013 © Insurance Services Office, Inc ., 2011 Page 9 of 12 Liability Insurance Endorsement Policy Period Effective Date Policy Number Insured Name of Company Date Issued APRIL 1, 2018 TO APRIL 1, 2019 APRIL 1, 2018 3592-96-23 WCE ECONOMIC & PLANNING SYSTEMS INC FEDERAL INSURANCE COMP ANY JANUARY 25, 2018 This Endorsement applies to the following forms: GENERAL LIABILITY Who Is An Insured Additional Insured - Scheduled Person Or Organization Liability Insurance Form 80-02-2367 (Rev. 5-07) Under Who Is An Insured, the following provision is added. Persons or organizations shown in the Schedule are insureds; but they are insureds only if you are obligated pursuant to a contract or agreement to provide them with such insurance as is afforded by this policy. However, the person or organization is an insured only: • if and then only to the extent the person or organization is described in the Schedule; • to the extent such contract or agreement requires the person or organization to be afforded status as an insured; • for activities that did not occur, in whole or in part, before the execution of the contract or agreement; and • with respect to damages, loss, cost or expense for in jury or damage to which this insurance applies. No person or organization is an insured under this provision: • that is more specifically identified under any other provision of the Who Is An Insured section (regardless of any limitation applicable thereto). • with respect to any assumption of liability (of another person or organization) by them in a contract or agreement. This limitation does not apply to the liability for damages, loss, cost or expense for injury or damage, to which this insurance applies, that the person or organization would have in the absence of such contract or agreement. Additional Insured -Scheduled Person Or Organization continued Endorsement Page 1 Liability Endorsement (continued) Conditions Other Insurance - Primary, Noncontributory Insurance -Scheduled Person Or Organization Liability Insurance Form 80-02-2367 (Rev. 5-07) Under Conditions, the following provision is added to the condition titled Other Insurance. If you are obligated, pursuant to a contract or agreement, to provide the person or organization shown in the Schedule with primary insurance such as is afforded by this policy, then in such case this insurance is primary and we will not seek contribution from insurance available to such person or organization. Schedule Persons or organizations that you are obligated, pursuant to a contract or agreement, to provide with such insurance as is afforded by this policy. All other terms and conditions remain unchanged. Authorized Representative Additional Insured -Scheduled Person Or Organization last page Endorsement Page 2 Conditions (continued) Transfer Or Waiver Of Rights Of Recovery Against Others Liability Insurance Form 80-02-2000 (Rev. 4-01) We will waive the right of recovery we would otherwise have had against another person or organization, for loss to which this insurance applies, provided the insured has waived their rights of recovery against such person or organization in a contract or agreement that is executed before such loss. To the extent that the insured's rights to recover all or part of any payment made under this insurance have not been waived, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring suit or transfer those rights to us and help us enforce them. This condition does not apply to medical expenses. Contract Page24 of32 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT WC 00 0313 (Ed . 04-84) We have the right to recover ou r payments from anyone liab le for an injury covered by this po licy. We will not enforce our right against the person or organization named in the Schedu le. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us .) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule State Person or Organization Job Description Cal ifornia This endorsement provides a blanket waiver of subrogation applicable to all jobs for persons or organizations whom the Named Insured has agreed by written contract to furnish this waiver. The charge for this endorsement sha ll be 5% of total manua l premium, subject to a minimum premium of $250. This charge will be bil led on your next invoice based on current manual prem i um, and the fina l charge will be calculated and billed at the final audit. This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated . Republic Indemnity Company of California Company Number 27561 Insured Economic and Planning Systems, Inc. Policy Number Endorsement Number Endorsement Effective Printed On WC 00 03 13 (Ed. 04-84) 161508-15 6 April 01, 2018 March 08, 2018 © 1983 National Council on Compensation Insurance. Countersigned by : __________ _ Insured Copy