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18-124 Van Meter William Pollock LLP., Design Review Service for Westport CupertinoCITY OF a DESIGN PROFESSIONAL SERVICES AGREEMENT (SINGLE) WITH VAN METER WILLIAM POLLACK LLP WESTPORT CUPERTINO CUPERTINO DEVELOPMENT. 1. PARTIES This Agreement is made and entered into as of June 20. 2018 --~----------------("Effective Date"), by and between the C ity of Cupertino, a municipal corporation ("City"), and Van Meter William Pollock LLP ("Consultant"), a Limited Liabilitv Compai for design review service for Westport Cupertino _____________________________ ("Project"). 2. SERVICES 2.1 Basic Services. Consultant agrees to provide the Basic Services for the Project, which are set forth in detail in the Scope of Services, attached here and incorporated as Exhibit A, and as further specified in Consultant's written Proposal as approved by City, except for any provision in the Proposal which conflicts or is inconsistent with this Agreement and the Exhibits hereto, or as otherwise expressly rejected by City. 2.2 Additional Services. City may request at any time during the Contract Time that Consultant provide additional services for the Proj e ct, which are not already encompassed, expressly or implicitly, in the Agreement, the Scope of Services, or the Proposal ("Additional Services"). Additional Services must be authorized in writing by City and Consultant will not be paid for unauthorized Additional Services rendered. Additional Services are subject to all the provisions applicable to Basic Services, except and only to the extent otherwise specified by City in writing . All references to "Services" in the Agreement include Basic Services and Additional Services, unless otherwise stated in writing. The Services may be divided into separate sequential tasks, as further specified in this Agreement, the Scope of Services, and Consultant's Proposal. Consultant is solely responsible for its errors and omissions and those of its subconsultants, and must promptly correct them at its sole expense. Consultant must take appropriate measures to avoid or mitigate any delay, liability, and costs resulting from its errors or omissions. 3. TIME OF PERFORMANCE 3.1 Term. This Agreement begins on the Effective Date and ends on June 30 2019 unless terminated earlier as provided herein ("Contract Time"). 3.2 Schedule of Performance. All Services must be provided within the times specified in Exhibit B, Schedule of Performance, attached and incorporated here. Consultant must promptly notify City of any actual or potential delay in providing the Services as scheduled to afford the Parties adequate opportunity to address or mitigate delays. If the Services are divided by tasks, Consultant must begin work on each separate task upon receiving City's Notice to Proceed ("NTO"), and must complete each task within the time specified in Exhibit B. Project We stport C up ertino Des ign Professional Agreement (s ingle) /Rev. My i o 13 Page I o f IO 3.3 Time is of the essence for the perfonnance of all the Services. Consultant must have sufficient time, resources, and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Consultant for satisfactory performance of the Basic Services and Additional Services, if approved , a cumulative total amount that will be capped so as not to exceed $14 300 ("Contract Price"), as specified in Exhibit C, Compensation, attached and incorporated here. The Contract Price includes all expenses and reimbursements and will remain in place even if Consultant's actual costs exceed the capped amount. No extra work or payment is permitted in excess of the Contract Price. 4.2 Basic Services. City will pay Consultant$ 14,300 ("Lump Sum Price") for the complete and satisfactory performance of the Basic Services in accordance with Exhibit C. The Lump Sum Price is inclusive of all time and expenses, including, but not limited to, subConsultant's costs, materials, supplies, equipment, travel, taxes, overhead and profit. If the Basic Services are not fully completed, Consultant will be compensated a percentage of the Lump Sum Price proportionate to the percentage of Basic Services that were completed to City's reasonable satisfaction. 4.3 Additional Services. City has the discretion, but not the obligation, to authorize Additional Services up to an amount not to exceed$ . Additional Services provided to City's reasonable satisfaction will be compensated on a lump sum basis or based on time and expenses, in accordance will the Hourly Rates and Reimbursable Expenses Schedules included in Exhibit C. If paid on an hourly basis , Consultant will be compensated for actual costs only of normal business expenses and overhead, with no markup or surcharge ("Reimbursable Expenses"). Consult.ant will not be entitled to reimbursement for copying, printing, faxes, telephone charges, employee overtime, or travel to City offices or to the Project site. 4.4 Invoices and Payments. Monthly invoices must describe the Services completed and the amount due for the preceding month. City will pay Consultant within 30 days following receipt of a properly submitted and approved invoice for Services. The invoice must separately itemize and provide subtotals for Basic Services and Additional Services, and must state the percentage of completion for each task, as specified in Exhibit C. City will notify Consultant in writing of any disagreements with the invoice or the stated percentage of completion of tasks. If the disagreement is unresolved, City will pay Consultant only for the undisputed portion of the Services. Disputed amounts shall be subject to the Dispute Resolution provision of this Agreement. Project a. Time and Expenses. For Additional Services provided on an hourly basis, each invoice must also include, for each day of Services provided: (i) name and title of each person providing Services ; (ii) a succinct summary of the Services performed by each person; (iii) the time spent per person, in 30 minute increments; (iv) the hourly billing rate or Sub- Consultant charge and payment due; and (v) an itemized list with amounts and explanation for all permitted reimbursable expenses. Westport Cupertino Design Profess ional Agreement (single) /R ev. May. 2018 Page 2 of LO b. Rates and Receipts. All hourly rates and reimbursable expenses must conform to the City- approved rates set forth in Exhibit C, which will be in effect for the entire Contract Time . Each invoice must attach legible, dated receipts for Reimbursable Expenses. 5. INDEPENDENT CONTRACTOR 5.1 Status. Consultant is an independent Consultant and not an employee, partner, or joint venture of the City. Consultant is solely responsible for the means and methods of performing the Services and shall exercise full control over the employment, direction, compensation and discharge of all persons assisting Consultant in performing the Services . Consultant is not entitled to health benefits, worker's compensation, retirement, or any City benefit. 5.2 Qualifications and Standard of Care. Consultant represents on behalf of itself and its subConsultants that they have the qualifications and skills to perform the Services in a competent and professional manner, as exercised by design professionals performing similar services in the San Francisco Bay Area. Services may only be performed by qualified and experienced personnel or subconsultants who are not employed by City and do not have any contractual relationship with City excepting this Agreement. All Services must be performed as specified to City's reasonable satisfaction . 5.3 Permits and Licenses. Consultant warrants on behalf of itself and any subConsultants that they are properly licensed, registered, and/or certified to perform the Services, as required by law, and that they have procured a valid City Business License. 5.4 SubConsultants. Unless prior written approval from City is obtained, only Consultant's employees and subConsultants whose names are included in this Agreement and incorporated Exhibits may provide Services under this Agreement. Consultant must require all subConsultants to furnish proof of insurance for workers' compensation, commercial liability, auto, and professional liability in reasonable confonnity to the insurance required of Consultant. The terms and conditions of this Agreement shall be binding on all subConsultants relative to the portion of their work. 5.5 Tools, Materials and Equipment. Consultant will supply and shall be responsible for all tools, materials and equipment required to perform the Services under this Agreement. 5.6 Payment of Taxes. Consultant must pay income taxes on the money earned under this Agreement. Upon City's request, Consultant will provide proof of payment and will indemnify City for any violations pursuant to the indemnity provision of this Agreement. 5. 7 Errors and Omissions. Consultant is solely responsible for its errors and omissions and those of its SubConsultants, and must take prompt measures to avoid, mitigate, and correct them at its sole expense. 6. PROPRIETARY /CONFIDENTIAL INFORMATION During the Contract Time Consultant 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. Consultant shall hold in confidence all City information and use Project Westport Cupertino Design Professional Agreement (~·ingle) /Rev. May. 2018 Page 3 of 10 it only to perfonn this Agreement. Consultant shall exercise the same standard of care to protect City information as a reasonably prudent Consultant would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Subject to City meeting its payment obligations for the Services, any interest (including copyright interests) of Consultant in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other infonnation or work, in any medium, prepared by Consultant under this Agreement ("Work Product"), will be the exclusive property of the City and shall not be shown to a third-party without prior written approval by City 7.2 Copyright. To the extent pennitted by Title 17 of U.S. Code, all copyrights to the Work Product prepared/created by Consultant and its SubConsultants and all copyrights in such Work Product shall constitute City property. If it is determined under federal law that the Work Product is not "works for hire", Consultant and SubConsultants hereby assign to City all copyrights to the Work Product when and as created . Consultant may retain copyrights to its standard details, but hereby grants City a perpetual, non-exclusive license to use such details. 7.3 Patents and Licenses. Consultant 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 if 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 Consultant and its SubConsultants to execute or implement any of the following, but Consultant shall not be responsible or liable for City's re-use of Work Product: (a) For work related to the original Services for which Consultant was hired; (b) To complete the original Services with City personnel, agents or other Consultants; (c) To make subsequent additions to the original Services; and/or (d) For other City projects. 7.5 Deliverables and Format. Electronic and hard copies of the Work Product constitute part of the Deliverables required under this Agreement, which shall be provided to City on recycled paper and copied on both sides, except for one single-sided original. Large-scale architectural plans and similar items must be in CAD and PDF formats, and unless otherwise specified, other documents must be in Microsoft Office applications and PDF formats. 8. RECORDS 8.1 Consultant must maintain complete, accurate, and detailed accounting records relating to the Services and Compensation, in accordance with generally accepted accounting principles and procedures. The records must include detailed information about Consultant's performance, benchmarks and deliverables. The records and suppotting documents must be kept separate from other files and maintained for a period of four years from the date of City's final payment. 8.2 Consultant will provide City full access to Consultant's books and records for review and audit, to make transcripts or copies, and to conduct a preliminary examination of all the work, data, documents, proceedings, and activities related to this Agreement. If a supplemental examination or Projec t Wes tport Cupertino Des ign Profess ional Agreement (.~i ng/e) /Rev. May. 201 8 Page 4 of I 0 audit of Consultant's records discloses non-compliance with appropriate internal financial controls, a contract breach, or a failure to act in good faith, City will be entitled to recover from Consultant the costs of the supplemental examination. If this is a lump sum fee Agreement, City will be provided access to records of reimbursable expenses and the instruments of service/deliverables for review and audit. This Section survives the expiration/termination of this Agreement. 9. ASSIGNMENT Consultant 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 Consultant as a legal entity will be considered an Assignment subject to City approval, which shall not be unreasonably withheld. For purposes of this provision, control means 50% or more of the voting power of the business entity. This Agreement binds Consultant, its heirs, successors and assignees. 10. PUBLICITY/ SIGNS Any publicity generated by Consultant 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 publ icity, 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 Agreement, without prior written approval from the City. 11. INDEMNIFICATION 11.1 To the fullest ex tent allowed by law and except for losses caused by the sole or active negligence or willful misconduct of City personnel, Consultant agrees to indemnify, defend, and hold harmless the City, its City Council, boards and commissions , officers, officials, employees, agents, servants , volunteers and consultants ( collectively, "Indemnitees"), as follows: a. Indemnity Obligations Subject to Civil Code Section 2782.8. With respect to the Services performed in connection with the Agreement, Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any and all liability, claims, actions, causes of action, demands or charges whatsoever against any Indemnitee, including any injury to or death of any person or damage to property or other liability of any nature ( collectively, "Liability"), that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant, its officers, officials, employees, agents or SubConsultants . Such costs and expenses shall include reasonable attorney fees for legal counsel of City's choice, expert fees, and all other costs and fees of litigation. In addition to its indemnity obligations, Design Professional will provide its immediate and active cooperation and assistance to the City, at no additional cost to the City, in analyzing , defending, and resolving such Liability. b. Claims Involving Intellectual Property. Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any claim involving intellectual property, infringement or v iolation of a United States patent right or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights , which arises out of, pertains to, or relates to Consultant's Project Wes/purl Cuper1ino Design Professional Agreement (single) !Rev. May. 2018 Page 5 of 10 negligence , recklessness, or w illful misconduct. Such costs and expenses will include reasonable attorney fees for legal counsel of City 's choice, expert fees and all other costs and fees of litigation . c. Claims for Other Liability. For all other liabilities not included in provisions "b" and "c" above, Consultant shall indemnify, defend, and hold harmless the Indemnitees against any and all liability, claims , actions, causes of action or demands whatsoever, including any injury to or death of any person or damage to property, or other liability of any nature arising out of, pertaining to, or relating to the performance of this Agreement by Design Professional, its employees, officers, officials, agents or subconsultants, including liability based on breach of contract, obligations, or warranties, or any unauthorized use or disclosure of City's confidential and proprietary information . 11.2 Consultant will assist City, at no additional cost, in the defense of any claim, dispute or lawsu it arising out of this Agreement. Consultant's duties herein are not limited to or subject to the Contract Price, to Workers' Compensation claims, or to the Insurance or Bond limits and provisions. Nothing in this Agreement shall be constmed to give rise to an implied right of indemnity in favor of Consultant against any Indemnitee. 11.3 If this Agreement is entered into or amended on or after January 1, 2018 , Consultant's duty to pay for any oflndemnitees' defense related costs will be limited to its proportionate share of fault , as determined by final decision by a court of competent jurisdiction, subject to any applicable exceptions in Civil Code section 2782.8. 11.4 Consultant agrees to pay the reasonable costs City may incur in enforcing this provision related to Consultant's indemnification duties, including reasonable attorney fees, fees for legal counsel acceptable to City, expert fees, and all other costs and expenses related to a claim or counterclaim, a purchase order, another transaction, litigation, or dispute resolution. Without waiving any rights, City ma y deduct money from Consultant's payments to cover moneys due to City. Section 11 survives expiration or te n nination of this Agreement. 12. INSURANCE On or before the Contract Time commences , Consultant shall furnish City with proof of compliance with City Insurance Requirements, attached and incorporated here as Exhibit D. City will not execute the Agreement until Consultant has submitted and C ity has reasonably approved receipt of satisfactory certificates of insurance and endorsements evidencing the type, amount, class of operations covered, and the effective and expiration dates of coverage. Alternatively, City may terminate this Agreement or in its sole discretion purchase insurance at Consultant's expense and deduct costs from payments to Consultant. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Consultant shall comply with all laws and regulations applicable to this Agreement. Consultant will promptly notify City of changes in the law or other conditions that may affect the Project or Consultant's ability to perform. Consultant is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act, or other federal or state l aw , rule or regulation. Project 1-Ves tport Cupertino Design Professional Agreement (si ng le) !Rev .. 'i-fay. 2018 P age 6 of 10 13.2 Labor Laws. Consultant shall comply with all labor laws applicable to this Agreement. If the Sen1 ices include a "public works" component, Consultant must comply with prevailing wage laws under Labor Code Section 1720 and other labor laws. To the extent applicable, Consultant must comply with City's Labor Compliance Program and with state labor laws pertaining to working days, overtime, payroll records and DIR Registration and Oversight. If the Contract Price is $30,000 or more, Consultant must comply with the apprenticeship requirement in Labor Code Section 1777.5. 13.3 Discrimination Laws. Consultant 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. Consultant shall comply with all anti-discrimination laws, including Government Code Section 12900 and 1113 5, and Labor Code Section . 1735, 1777 and 3077.5. Consistent with City policy prohibiting, Consultant understands that harassment and discrimination by Consultant or any of its subConsultants toward a job applicant, an employee, a City employee, or any other person is strictly prohibited. 13.4 Conflicts of Interest. Consultant shall comply with all conflict of interest laws and regulations applicable to this Agreement and must avoid any conflict of interest. Consultant 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. Consultant may be required to file a conflict of interest form if Consultant makes certain governmental decisions or serves in a staff capacity, as provided in Section 18700 of the California Code of Regulations and other laws. Services may only be performed by persons who are not employed by City and who do not have any contractual relationship with City, with the exception of this Agreement. Consultant is familiar with and agrees to abide by the City's rules governing 'gifts to public officials and employees. 13.5 Remedies. A violation of this Section constitutes a material breach and may result in City suspending payments, requiring reimbursement, or terminating this Agreement. City reserves all its rights and remedies under law and this Agreement, including the right to seek indemnification under Section 11 . Consultant agrees to indemnify, defend, and hold City harmless from and against any loss, liability, and expenses arising from noncompliance with this Section . 14. PROJECT COORDINATION 14.1 City Project Manager. The City's Project Manager for all purposes under this Agreement will be Gian Martire , who shall have the authority to manage this Agreement and oversee the progress and performance of the Services. City in its sole discretion may substitute another Project Manager at any time and will advise Consultant of the new representative. 14.2 Consultant Project Manager. Subject to City's reasonable approval, Consultant's Project Manager for all purposes under this Agreement will be _R_ic_k_W_W_i_ll_ia_m_s _________ _ who shall be the single representative for Consultant with the authority to manage compliance with this Agreement and oversee the progress and performance of the Services. This includes responsibility for coordinating and scheduling the Services in accordance with City instructions, service orders, and the Schedule of Performance, and providing regular updates to the City's Project Manager on the Project status, progress, and any delays. City written approval is required prior to Consultant substituting a new Project Manager, which shall result in no additional costs to City or Project delays . Project Westport Cupertino Design Professional Agreement (single) !Rev. lv!ay. 2018 Page 7 of 10 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project with thirty (30) calendar days written notice to Consultant. Consultant will be compensated for satisfactory Services performed through the date of abandonment and will be given reasonable time to assemble the work and close out the Services. No close out work shall be conducted without City reasonable approval of closure costs, which may not exceed ten percent (I 0%) of the total time expended to the date of abandonment. All charges including job closure costs will be paid in accordance with the provisions of this Agreement and within thirty (30) days of Consultant's final invoice reasonably approved by the City. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time, following reasonable written notice to Consultant at least thirty (30) calendar days prior to the termination date . Consultant will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Consultant closes out the Services and delivers all Work Product to City. All charges approved by City including job closure costs will be paid within 30 days of Consultant's final invoice. 17. GOVERNING LAW, VENUE AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California, excepting any choice of law rules which may direct the application of laws of another jurisdiction. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Consultant must comply with the claims filing requirements under the Government Code prior to filing a civil action in court against City. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement ( or the successors of those authorities). If a dispute arises, Consultant 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 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. This Section survives the expiration/termination of this Agreement. 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 any breach shall not be deemed to constitute waiver of another term, provision , covenant or condition, or a subsequent breach, whether of the same or a different character. Project Westport Cupertino Design Professional Agreem ent (sing le) !Rev. May. 2018 Page 8 o f J 0 21. ENTIRE AGREEMENT This Agreem ent and all its Sections represent the full and complete understanding of the Parti es, of every kind or nature, and supersedes any and all other agreements and understandings , either oral or written, between them. Any modification of this Agreement will be effective only if in writing and signed by each Party 's authorized representative . No verb a l agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between this main Agreement and the attachments or exhibits thereto , the text of the main Agreement shall prevail. 22. INSERTED PROVISIONS Each contractual provision or clause that may be required by law is deemed to be included and will be inferred in this Agreement. Either party may request an amendment to cure any mistaken insertion or omission of a required provision. 23. HEADINGS The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect , lim it, 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 si t uations shall remain in full force and effect. 25. SURVIVAL All provisions which by their nature must continue after the Agreement ends, including without limitation those referenced in specific Sections herein, survive this Agreement and shall remain in full force and effect. 26. NOTICES All notices, requests and approvals must be sent to the persons below in writing to the persons below , and will be considered effective on the date of personal delivery, the delivery date confirmed 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 10300 Torre Ave . Cupertino CA 95014 Attention: Gian Martire Email: gianm@cup e rtino .org Pr oject Wesrpor t Cupertino To Consultant: Van Meter Williams Pollack LLP 333 Bryant Street, Suite 300, San Francisco, CA 94107 Attention: Rick W. Williams Email: rick@ vmwp.com Design Prr!fessiona l Agreement (~i ng le) !Rev. May. 2018 Page 9 of 10 27. VALIDITY OF CONTRACT This Agreement is valid and enforceable only if it complies with the contract provisions of Cupertino Municipal Code Chapters 3 .22 and 3 .23, is signed by the City Manager or authorized designee, and is approved for form by the City Attorney's Office . 28. EXECUTION The person executing this Agreement on behalf of Consultant represents and warrants that Consultant has the right, power, and authority to enter into this Agreement and carry out all actions herein, and that he or she is authorized to execute this Agreement, which constitutes a legally binding obligation of Consultant. 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 on the Effective Date stated earlier in this Agreement. TaxlD.No.: 'J4-21/ 387D PPRO ED AS TO FO~: A j & ~·· t)-e)/OJ/ I-? ROCI V. FIERRO ino Acting City Attorney A7F:t{,il __ G~lt-·ft City Clerk · Proiect Westport Cupertino CITY OF CUPERTINO Name ,4,,PffJ SJIRJ~J4l Title ~ e/{f/ ///l)tl,,(l«f?' Date ~~~Cf--'~~~.,._....,~~b,L-~~~ Design Profess ional Agreement (s ingle) !Rev. May. 201 8 Page 10 of 10 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 following insurance policies and coverage with companies doing business in California and acceptable to City. INSURANCE POLICIES AND MINIMUMS REQUIRED 1. Commercial General Liability (CGL) for bodily injury, property damage, personal injury liability for premises operations, products and completed operations, contractual liability, and personal and advertising injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (i) the minimum coverage/limits specified in this agreement; or (ii) the broader coverage and maximum limits of coverage of any insurance policy , whichever is greater. b. Additional Insured coverage under Consultant's policy shall be "primary and non-contributory ," will not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO Form CG 2001 (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. D Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant's profession, with limits no less than $2,000,000 per occurrence or $2,000,000 aggregate. If written on a claims made form : a. The Retroactive Date must be shown and must be before the Effective Date of the Contract. b. Insurance must be maintained for at least five (5) years after completion of the Services. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of the Services. OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: Ex h. D-Insurance Requirements/or Design Professionals & Co nsultants Co ntracts Form Up dated Feb. 2018 1 VANMETE-01 FRANCISCON ACORD' CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYY) ~ 6/20/2018 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(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER License # OE67768 2~~!~cT Michelle Costa IOA Insurance Services (A~g.NJo, Ext): (925) 660-3508 50028 I FA X 3875 Hopyard Road (A/C, No):(925) 416-7869 Suite 200 ~i:JMDA~~ss : Michelle.Costa@ioausa.com Pleasanton, CA 94588 INSURER(S) AFFORDING COVERAGE NA IC # INSURER A : RLI Insurance Company 13056 INSURED INSURER B : The Hanover Insurance ComQfil}Y 22292 Van Meter Williams Pollack, LLP INSURER C: 333 Bryant Street, Suite 300 INSURER D: San Francisco, CA 94107 INSURER E: INS URER F: I COVERAGES CERTIFICATE NUMBER· REVISION NUMBER· THIS IS TO CERTIF Y TH AT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLIC Y PERIOD INDIC ATED . 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 INSUR ANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERM S, EXC LUSIONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS I TR INSD WVD tMMfDD=• IMM/DDNYYVI A X COMMERCIAL GENERAL LIABILITY EACH OCCURR EN CE $ 1,000,000 -=i CLAIMS-MADE [KJ OCCUR DAMAGE TO RENTED 1 ,000,000 PSB0006011 01/30/2018 03/01/2019 PREMISES tEa occurrence) $ MED EXP /Anv one oersonl $ 10,000 ~ 1,000,000 PERSONAL & ADV INJURY $ ~ ~~- 2,000,000 GEN'L AGGREGATE LIMIT AP PLIES PER : GENER AL AGGR EG ATE $ Fl POLICY [KJ FJf8-f O LOC PRODUCTS -COMP/OP AGG $ 2 ,000,000 OTHER: $ A ~TOMOBILE LIABILITY COMB INED SINGLE LIMIT 1 ,000,000 /Ea accidentf $ X ANY AUTO PSA0002155 01/30/2018 03/01/2019 BODILY INJURY (Per person) $ -OWNED M oc,rn"'rn -AUTOS ONLY AUTOS BODILY INJURY /Per accident\ $ X HIRED NON-OWNED 1P~9~[Jd1Jit~AMAGE $ -AUTOS ONLY AUTOS ON LY I $ A UMBRELLA LIAB M OCCUR EA CH OCCURRENCE $ 2,000,000 ~ PSE0002646 01/30/2018 03/01/2019 2,000,000 X EXC ESS LIAB CLAIMS-MADE AGGR EG ATE $ e---lci~ I RETENTION$ $ A WORKERS COMPENSATION X I ~~f rnT" I I OTH- AND EMPLOYERS ' LIABILITY ER YIN PSW0003439 01/30/2018 01/30/2019 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE D E.L. EACH ACC IDENT $ OFFICER/M~MBER EXCLUDED? N/A 1,000,000 (Mandatory on NH) E.L . DISEASE -EA EMPLOYEE $ Jf yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -POLICY LIMIT $ 1,000,000 B Professional Liab. LHFA838881 01/30/2018 03/01/2019 Per Claim 2,000,000 B Professional Liab. LHFA838881 01/30/2018 03/01/2019 Aggregate 2,000,000 DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101 , Additional Remarks Schedule, may be attached if more space is required) RE : Westport Cupertino -Transit Terminal Connection General & Auto Liability: Please see Additional Insured endorsemenst attached; such coverage is Primary & Non-Contributory basis with Waiver of Subrogation included, as required by written contract. Workers' Compensation: Waiver of Subrogation Is In favor of Certificate Holder, as required by written contract. GENERAL & AUTO LIABILITY ADDITIONAL INSURED INCLUDES THE FOLLOWING PERSON(S) OR ORGANIZATION(S): City of Cupertino 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. AUTHORIZED REPRESENTATIVE City of Cupertino -~- 10300 Torre Avenue 1r.11n.,rtino . r..o. ai:n14 ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Additional Insured Status The City of Cupertino, its City Council , officers , officials , employ ees , 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 th e form of an endorsement to Consultant's insurance (at least as broad as ISO Form CG 20 10 (11 / 85) or both CG 20 10 and CG 20 37 forms , if later editions are used). Primary Coverage Coverage afforded to City/ Additional Insureds shall be primary inslfil1I1Ce. 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, orbetter. 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 subconsultants maintain insurance that meet the requirements of this Contract, including naming the City as an additional insured on subconsultant's insurance policies. Higher Insurance Limits If Consultant maintains broader coverage and /or higher limits than the minimums shown above, City shall be entitl ed to coverage for the higher insurance limits maintained by Consultant. Adequacy of Coverage City reserves the right to modify these insurance requirements/coverage based on the nature of the risk , prior experience, insurer or other special circumstances, with not Jess than ninety (90) days prior written notice. Ex h. D-fns urance Require ments fo r Design Pr of ess ionals & Co nsult ants Con tra cts Form Updated Feb . 20/8 2 Policy Number: PSB0006011 RLI Insurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. RLIPack® FOR DESIGN PROFESSIONALS BLANKET ADDITIONAL INSURED ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM -SECTION II -LIABILITY 1. C. WHO IS AN INSURED is amended to include as an additional insured any person or organization that you agree in a contract or agreement requiring insurance to include as an additional insured on this policy, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused in whole or in part by you or those acting on your behalf: a. In the performance of your ongoing operations: b. In connection with premises owned by or rented to you: or c. In connection with "your work" and included within the "product-completed operations hazard". 2. The insurance provided to the additional insured by this endorsement is limited as follows : a. This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specifically is added by another endorsement to this policy. b. This insurance does not apply to the rendering of or failure to render any "professional services". c. This endorsement does not increase any of the limits of insurance stated in D. Liability And Medical Expenses Limits of Insurance . 3. The following is added to SECTION Ill H.2. Other Insurance -COMMON POLICY CONDITIONS (BUT APPLICABLE ONLY TO SECTION II - LIABILITY) However, if you specifically agree in a contract or agreement that the insurance provided to an additional insured under this policy must apply on a primary basis, or a primary and non-contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such additional insured as a named insured, and we will not share with that other insurance, provided that: a. The "bodily injury" or "property damage" for which coverage is sought occurs after you have entered into that contract or agreement: or b. The "personal and advertising injury" for which coverage is sought arises out of an offense committed after you have entered into that contract or agreement. 4. The following is added to SECTION Ill K. 2. Transfer of Rights of Recovery Against Others to Us -COMMON POLICY CONDITIONS (BUT APPLICABLE TO ONLY TO SECTION II - LIABILITY) We waive any rights of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal and advertising injury" arising out of "your work" performed by you, or on your behalf, under a contract or agreement with that person or organization. We waive these rights only where you have agreed to do so as part of a contract or agreement with such person or organization entered into by you before the "bodily injury" or "property damage" occurs, or the "personal and advertising injury" offense is committed. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. PPB 304 0610 Page 1 of 1 Policy Number: PSA0002155 This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM A. Broad Form Named Insured The following is added to the SECTION II - LIABILITY Coverage, Paragraph A.1. Who Is An Insured Provision: Any business entity newly acquired or formed by you during the policy period , provided you own fifty percent (50%) or more of the business entity and the business entity is not separately insured for Business Auto Coverage . Coverage is extended up to a maximum of one hundred eighty (180) days following the acquisition or formation of the business entity. This provision does not apply to any person or organization for which coverage is excluded by endorsement . B. Employees As Insureds The following is added to the SECTION II - LIABILITY COVERAGE, Paragraph A .1. Who Is An Insured Provision: Any "employee" of yours is an "insured" while using a covered "auto" you don't own, hire or borrow in your business or your personal affairs. C. Blanket Additional Insured The following is added to the SECTION II - LIABILITY COVERAGE, Paragraph A .1. Who Is An Insured Provision: Any person or organization that you are required to include as an additional insured on this coverage form in a contract or agreement that is executed by you before the ;'bodily injury " or "property damage" occurs is an "insured" for liability coverage, but only for damages to which tt1is insurance applies and only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured provision contained in SECTION II - LIABILITY COVERAGE . The insurance provided to the additional insured will be on a primary and non-contributory basis to the additional insured's own business auto coverage if you are required to do so in a contract or agreement that is executed by you before the "bodily injury" or "property damage" occurs . D. Blanket Waiver Of Subrogation The following is added to the SECTION IV - BUSINESS AUTO CONDITIONS, A. Loss Conditions, 5. Transfer Of Rights Of Recovery Against Others To Us : PPA 300 03 11 We waive any right of recovery we may have against any person or organization to the extent required of you by a contract executed prior to any ··accident" or "loss ", provided that the "accident" or "loss" arises out of the operations contemplated by such contract. The waiver applies only to the person or organization designated in such contract. E. Employee Hired Autos 1. The following is added to the SECTION II - LIABILITY COVERAGE, Paragraph A.1. Who Is An Insured Provision: An "employee" of yours is an "insured" while operating an "auto" hired or rented under a contract or agreement in that "employee's" name , with your permission, while performing duties related to the conduct of your business . 2. Changes In General Conditions: Paragraph 5.b. of the Other Insurance Condition in the BUSINESS AUTO CONDITIONS is deleted and replaced with the following: b . For Hired Auto Physical Damage Coverage, the following are deemed to be covered "autos" you own: (1) Any covered "auto" you lease, hire, rent or borrow ; and (2) Any covered "auto" hired or rented by your "employee" under a contract in that individual "employee's" name , with your permission, while performing duties related to the conduct of your business . However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". F. Fellow Employee Coverage SECTION II -LIABILITY COVERAGE, Exclusion 8.5. does not apply if you have workers compensation insurance in-force covering all of your employees . G. Auto Loan Lease Gap Coverage SECTION Ill -PHYSICAL DAMAGE COVERAGE, C . Limit Of Insurance, is amended by the addition of the following: In the event of a total "loss" to a covered "auto" shown in the Schedule of Declarations, we will pay any unpaid amount due on the lease or loan for a covered "auto", less : WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT-CALIFORNIA WC 04 03 06 (Ed. 4--84) We have t he right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce ou r right against the person or organization named in the Schedule . (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us .) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule . The additional premium for this endorsement shall be ___ 2_% of the California workers ' compensation premium otherwise due on such remuneration . Schedule Penson or Organization All pe rsons or organizations that are party t o a contract that requires you to obtain this a gre e ment, provid e d you executed the oontroot before the loss . Job Description Jobs performed for any person or organization that you have agreed wittl in a wrrtten contract to provi de this agreement. Tt1is endrnsernent chanoes the policy to wl1ich it is attached and is effective on U1e dc1le iss u etl unl ess 0U1erwise sta ted. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Enoorsemem Effecu ve 01 /27/16 Polley NO PSW0003439 EMorsernent No. WC 04 03 06 Insured Van Meter Williams Pollack, LLP Insurance Company RLI Insurance Company Countersigned By @1998 by the Workers ' Compensation Insurance Rating Bureau of California. All rights reserved.