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22-003 Clean Redline - Envirosuite Inc., for Noise & Pollution Monitoring
Page 1 of 10 Professional/Consulting Contracts /Version: October 2021 PROFESSIONAL/CONSULTING SERVICES AGREEMENT 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”), and Envirosuite, Inc. (“Contractor”), a corporation, for Lehigh and Stevens Creek Quarries Noise and Pollution Monitoring, and is effective on the last date signed below (“Effective Date”). 2. SERVICES Contractor agrees to provide the services and perform the tasks (“Services”) set forth in detail in Scope of Services, attached here and incorporated as Exhibit A. Contractor further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 3. TIME OF PERFORMANCE 3.1 This Agreement begins on the Effective Date and ends on December 31, 2022 (“Contract Time”), unless terminated earlier as provided herein. Contractor’s Services shall begin on effective day and shall be completed by December 31, 2022. With the Contractor’s agreement and consent, the City’s appropriate department head or the City Manager may extend the Contract Time through a written amendment to this Agreement, provided such extension does not include additional contract funds. Extensions requiring additional contract funds are subject to the City’s purchasing policy. 3.2 Schedule of Performance. Contractor must deliver the Services in accordance with the Schedule of Performance, attached and incorporated here Exhibit B. 3.3 Time is of the essence for the performance of all the Services. Contractor must have sufficient time, resources, and qualified staff to deliver the Services on time. 4. COMPENSATION 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services an amount that will based on actual costs but that will be capped so as not to exceed $45,000 (“Contract Price”), based upon the scope of services in Exhibit A and the budget and rates included in Exhibit C, Compensation attached and incorporated here. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor’s actual costs exceed the capped amount. No extra work or payment is permitted without prior written approval of City. Page 2 of 10 Professional/Consulting Contracts /Version: October 2021 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. 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 warrants on behalf of itself and its subcontractors that they have the qualifications and skills to perform the Services in a competent and professional manner and according to the highest standards and best practices in the industry. 5.3 Permits and Licenses. Contractor warrants on behalf of itself and its subcontractors that they are properly licensed, registered, and/or certified to perform the Services as required by law and have procured a City Business License, if required by the Cupertino Municipal Code. 5.4 Subcontractors. Only Contractor’s employees are authorized to work under this Agreement. Prior written approval from City is required for any subcontractor, and the terms and conditions of this Agreement will apply to any approved subcontractor. 5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and equipment required to perform the Services under this Agreement. 5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Contractor and any of its employees, agents, and subcontractors shall not have any claim under this Agreement or otherwise against City for seniority, vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Contractor’s business including, but not limited to, federal and state income taxes. City shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of Contractor. Should any court, arbitrator, or administrative authority, including but not limited to the California Public Employees Retirement System (PERS), the Internal Revenue Service or the State Employment Development Division, determine that Contractor, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Contractor agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City as a result of such determination, so that the City’s total expenses under this Agreement are not greater than they would have been had the determination not been made. Page 3 of 10 Professional/Consulting Contracts /Version: October 2021 6. PROPRIETARY/CONFIDENTIAL INFORMATION Subject to the provisions of section 8, in performing this Agreement, each party may have access to private or confidential information owned or controlled by the other party, which may contain proprietary or confidential details the disclosure of which to third parties may be damaging to the disclosing party. Each party shall hold in confidence all the information provided to the other and use it only to perform this Agreement or for the uses contemplated by this Agreement. Each party shall exercise the same standard of care to protect the other’s information as a reasonably prudent party would use to protect its own proprietary data. 7. OWNERSHIP OF MATERIALS 7.1 Property Rights. Any interest (including copyright interests) of Contractor in any product, memoranda, study, report, map, plan, drawing, specification, data, record, document, or other information or work, in any medium (but expressly excluding any of the Contractor’s Background IP as defined in section 7.6) (collectively, “Work Product”), prepared by Contractor in connection with this Agreement will be the exclusive property of the City upon completion of the work to be performed hereunder or upon termination of this Agreement, to the extent requested by City. In any case, no Work Product shall be shown to any third-party without prior written approval of City. 7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all Work Product arising out of this Agreement is considered “works for hire” and all copyrights to the Work Product will be the property of City. Alternatively, Contractor assigns to City all Work Product copyrights. Contractor may use copies of the Work Product for promotion only with City’s written approval. 7.3 Patents and Licenses. Contractor must pay royalties or license fees required for authorized use of any third party intellectual property, including but not limited to patented, trademarked, or copyrighted intellectual property 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 Contractor or its sub-contractors prepared or created under this Agreement, to execute or implement any of the following: (a) The original Services for which Contractor was hired; (b) Completion of the original Services by others; (c) Subsequent additions to the original Services; and/or (d) Other City projects. 7.5 Deliverables and Format. Contractor must provide electronic and hard copies of the Work Product, on recycled paper and copied on both sides, except for one single-sided original. 7.6 Contractor’s Intellectual Property. (a) For the purposes of this Agreement: “Background IP” of a party means any materials or intellectual property rights Page 4 of 10 Professional/Consulting Contracts /Version: October 2021 owned, acquired, invented, licensed, or otherwise created by that party, alone or jointly with others, either: (a) before the Contract Time commences; or (b) during the Contract Time but independently from this Agreement, including, without limitation, software required to provide the Services. (b) Contractor License Grant. The Contractor grants to the City a non-exclusive, royalty- free, revocable, worldwide rights and licenses during the applicable Contract Time to access, install, import, execute, use, and internally distribute and operate the requisite Contractor Background IP solely for the purpose contemplated by this Agreement. (c) License Restrictions. Except as otherwise permitted under this Agreement, the City must not decompile, disassemble, or reverse engineer or create derivative works of the Contractor’s Background IP without the Contractor’s written consent. (d) City License Grant. The City grants to the Contractor a non-exclusive, non- sublicensable, royalty-free, revocable worldwide license of the City’s intellectual property rights solely to provide the Services. (e) Ownership and Contractor Reservation of Rights. Subject to the licenses expressly granted in this Agreement, the Contractor reserves all of its right, title, and interest in and to the Contractor Background IP (which includes software). 8. RECORDS Contractor must maintain complete and accurate accounting records relating to its performance in accordance with generally accepted accounting principles. The records must include detailed information of Contractor’s performance, benchmarks and deliverables, which must be available to City for review and audit. The records and supporting documents must be kept separate from other records and must be maintained for four (4) years from the date of City’s final payment. Contractor acknowledges that certain documents generated or received by Contractor in connection with the performance of this Agreement, including but not limited to correspondence between Contractor and any third party, are public records under the California Public Records Act, California Government Code section 6250 et seq. Contractor shall comply with all laws regarding the retention of public records and shall make such records available to the City upon request by the City, or in such manner as the City reasonably directs that such records be provided. 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, which consent will not be unreasonably withheld. 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. Page 5 of 10 Professional/Consulting Contracts /Version: October 2021 10. PUBLICITY / SIGNS Any publicity generated by Contractor for the project under this Agreement, during the term of this Agreement and for one year thereafter, will reference the City’s contributions in making the project possible. The words “City of Cupertino” will be displayed in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews and newspaper articles. No signs may be posted, exhibited or displayed on or about City property, except signage required by law or this Contract, without prior written approval from the City. 11. INDEMNIFICATION 11.1 To the fullest extent allowed by law, and except for losses caused by the sole and active negligence or willful misconduct of City personnel, Contractor shall, to a maximum value of $1,000,000, indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, officials, employees, agents, servants, volunteers, and consultants (“Indemnitees”), through legal counsel acceptable to City, from and against any and all liability, damages, claims, actions, causes of action, demands, charges, losses, costs, and expenses (including attorney fees, legal costs, and expenses related to litigation and dispute resolution proceedings) of every nature, arising directly or indirectly from this Agreement or in any manner relating to any of the following: (a) Breach of contract, obligations, representations, or warranties; (b) Negligent or willful acts or omissions committed during performance of the Services; (c) Personal injury, property damage, or economic loss resulting from the work or performance of Contractor or its subcontractors or sub-subcontractors; (d) Unauthorized use or disclosure of City’s confidential and proprietary Information; (e) Claim of infringement or violation of a U.S. patent or copyright, trade secret, trademark, or service mark or other proprietary or intellectual property rights of any third party. 11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor must accept a tender of defense upon receiving notice from City of a third-party claim. At City’s request, Contractor will assist City in the defense of a claim, dispute, or lawsuit arising out of this Agreement. 11.3 Contractor’s duties under this section are not limited to the Contract Price, workers’ compensation payments, or the insurance or bond amounts required in the Agreement. Nothing in the Agreement shall be construed to give rise to an implied right of indemnity in favor of Contractor against City or any Indemnitee. 11.4 Contractor’s payments may be deducted or offset to cover any money the City lost due to a claim or counterclaim arising out of this Agreement, a purchase order, or other transaction. 11.5 Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. Page 6 of 10 Professional/Consulting Contracts /Version: October 2021 11.6 This Section 11 shall survive termination of the Agreement. 12. INSURANCE Contractor shall comply with the Insurance Requirements, attached and incorporated here as Exhibit D, and must maintain the insurance for the duration of the Agreement, or longer as required by City. City will not execute the Agreement until City approves receipt of satisfactory 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 Contractor’s compensation or terminating the Agreement. 13. COMPLIANCE WITH LAWS 13.1 General Laws. Contractor shall comply with all local, state, and federal laws and regulations applicable to this Agreement. Contractor will promptly notify City of changes in the law or other conditions that may affect the Project or Contractor’s ability to perform. Contractor is responsible for verifying the employment authorization of employees performing the Services, as required by the Immigration Reform and Control Act. 13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this Agreement. If the Scope of Services includes a “public works” component, Contractor is required to comply with prevailing wage laws 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 Government Code Sections 12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with City policy prohibiting harassment and discrimination, Contractor understands that harassment and discrimination directed toward a job applicant, an employee, a City employee, or any other person, by Contractor or its employees or sub-contractors will not be tolerated. Contractor agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws applicable to this Agreement and must avoid any conflict of interest. Contractor warrants that no public official, employee, or member of a City board or commission who might have been involved in the making of this Agreement, has or will receive a direct or indirect financial interest in this Agreement, in violation of California Government Code Section 1090 et seq. Contractor may be required to file a conflict of interest form if Contractor makes certain governmental decisions or serves in a staff capacity, as defined in Section 18700 of Title 2 of the California Code of Regulations. Contractor agrees to abide by the City’s rules governing gifts to public officials and employees. 13.5 Remedies. Any violation of Section 13 constitutes a material breach and may result in City suspending payments, requiring reimbursements or terminating this Agreement. City reserves all other rights and remedies available under the law and this Agreement, including the right to seek Page 7 of 10 Professional/Consulting Contracts /Version: October 2021 indemnification under Section 11 of this Agreement. 14. PROJECT COORDINATION City Project Manager. The City assigns Bill Mitchell, CTO 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 Greg Bracci as its single Representative for all purposes under this Agreement, with authority to oversee the progress and performance of the Scope of Services. Contractor’s Project manager is responsible for coordinating and scheduling the Services in accordance with the Scope of Services and the Schedule of Performance. Contractor must regularly update the City’s Project Manager about the progress with the work or any delays, as required under the Scope of Services. City written approval is required prior to substituting a new Representative. 15. ABANDONMENT OF PROJECT City may abandon or postpone the Project or parts therefor at any time. Contractor will be compensated for satisfactory Services performed through the date of abandonment, and will be given reasonable time to assemble the work and close out the Services. With City’s pre-approval in writing, the time spent in closing out the Services will be compensated up to a maximum of ten percent (10%) of the total time expended to date in the performance of the Services. 16. TERMINATION City may terminate this Agreement for cause or without cause at any time. Contractor will be paid for satisfactory Services rendered through the date of termination, but final payment will not be made until Contractor closes out the Services and delivers the Work Product. 17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION This Agreement is governed by the laws of the State of California. Any lawsuits filed related to this Agreement must be filed with the Superior Court for the County of Santa Clara, State of California. Contractor must comply with the claims filing requirements under the Government Code prior to filing a civil action in court. If a dispute arises, Contractor must continue to provide the Services pending resolution of the dispute. If the Parties elect arbitration, the arbitrator’s award must be 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. Page 8 of 10 Professional/Consulting Contracts /Version: October 2021 19. THIRD PARTY BENEFICIARIES There are no intended third party beneficiaries of this Agreement. 20. WAIVER Neither acceptance of the Services nor payment thereof shall constitute a waiver of any contract provision. City’s waiver of a breach shall not 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, between the Parties. Any modification of this Agreement will be effective only if in writing and signed by each Party’s authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this Agreement. If there is any inconsistency between any term, clause, or provision of the main Agreement and any term, clause, or provision of the attachments or exhibits thereto, the terms of the main Agreement shall prevail and be controlling. 22. INSERTED PROVISIONS Each provision and clause required by law for this Agreement is deemed to be included and will be inferred herein. Either party may request an amendment to cure mistaken insertions or omissions of required provisions. The Parties will collaborate to implement this Section, as appropriate. 23. HEADINGS The headings in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit, or amplify the terms or provisions of this Agreement. 24. SEVERABILITY/PARTIAL INVALIDITY If any term or provision of this Agreement, or their application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this Agreement or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this Agreement to carry out its intent. 25. SURVIVAL All provisions which by their nature must continue after the Agreement expires or is terminated, including the Indemnification, Ownership of Materials/Work Product, Records, Governing Law, and Attorney Fees, shall survive the Agreement and remain in full force and effect. Page 9 of 10 Professional/Consulting Contracts /Version: October 2021 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 Mail, postage prepaid, registered or certified, or the next business day following electronic submission: To City of Cupertino 1300 Torre Avenue Cupertino, CA. 95014 Attention: Bill Mitchell E-mail: Billm@cupertino.org To Contractor: Envirosuite, Inc. 2330 E. Bidwell Street, Suite 210 Folsom, CA. 95630 Attention: Greg Bracci Email: Greg.Bracci@envirosuite.com 27. 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. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK [SIGNATURE PAGE TO FOLLOW] Page 10 of 10 Professional/Consulting Contracts /Version: October 2021 IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CITY OF CUPERTINO ENVIROSUITE, INC. A Municipal Corporation By By Name Name Title Title Date Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: LAUREN SAPUDAR Acting City Clerk DATE: Gregory C Bracci Vice President - Americas Jan 6, 2022 Gregory C Bracci Christopher D. Jensen Jan 6, 2022 CTO Bill Mitchell Lauren Sapudar Jan 6, 2022 Project Charter Project Charter: Pilot – Lehigh and Stevens Creek Noise and Pollution Monitoring Project Name: Pilot – Lehigh and Stevens Creek Quarries Noise and Pollution Monitoring Sponsor City Council: FY22 City Work Program Project Managers Bill Mitchell (COC), Greg Bracci (Envirosuite) Project Objective Statement: The Objective of this project is to install, configure, activate, and report on air quality and noise level sensors placed adjacent to Lehigh and Steven Creek quarries but within Cupertino City limits. Sensor data will be published on a web portal for public review. Additionally, alerts and reporting will be established to record noise and/or air quality measures. Project Deliverables: By November 19, 2021, the location of four (4) noise loggers and four (4) air quality sensors will be determined and any lease, permits, or other costs will be identified. Additionally, these locations will provide proper power requirements for the eight (8) sensors. By December 31, 2021, Install, Configure and Activate four (4) class 1 noise loggers that meet IEC 61672 accuracy standards. Sensors will be leased for a period of six (6) months. Start date of lease corresponds to activation of all sensors. By December 31, 2021, Install, Configure and Activate four (4) air quality sensors that measure Nitrogen Dioxide (NO2), Carbon Monoxide (CO2), Ozone (O3), particulate matter (PM) that will measure PM10 and PM2.5, and total volatile Organic Compounds (tVOC). Sensors will be leased for a period of six (6) months. Start date of lease corresponds to activation of all sensors. Beginning January 3, 2022, provide 24/7 real‐time monitoring of noise logger and air quality sensors. Beginning January 3, 2022, provide access to Envirosuite’s Sacramento‐based support team for remote support. By January 13, 2022, train staff on the Envirosuite Sentinal platform and provide two (2) Administrator access licenses to the platform. By January 13, 2022, assist Cupertino staff in developing alerts and report for both noise and air quality sensors. By January 31, 2022, stakeholder web portal will be published on the City’s website. By January 31, 2022, add the five (5) publicly available PM monitor data to the stakeholder web portal. Upon sensor activation provide 24/7 real‐time monitoring and reporting capabilities. By July 17, 2022, compare Envirosuite air quality data against City wide Alima data from previous year to determine effect, if any, of quarries on air quality. EXHIBITS A, B, & C Project Charter Project Charter: Pilot – Lehigh and Stevens Creek Noise and Pollution Monitoring Business Reasons: Measure impact that Lehigh and Stevens Creek quarries may have on air quality and noise levels for Cupertino residents. Customer: City of Cupertino residents, staff & guests Customer Benefits: Enhanced knowledge of possible air quality and noise level impacts that may be attributable to Lehigh and/or Stevens Creek quarries. Success Criteria: Success criteria includes: Install, Configure and Activate four (4) class 1 noise loggers that meet IEC 61672 accuracy standards. Install, Configure and Activate four (4) air quality sensors that measure Nitrogen Dioxide (NO2), Carbon Monoxide (CO2), Ozone (O3), particulate matter (PM) that will measure PM10 and PM2.5, and total volatile Organic Compounds (tVOC). Real time report on air quality and noise level Real time alerts established for unsafe air quality and noise level Project Background: Project is a Council work program project. The goal was to understand the impact of the Lehigh and Stevens Creek quarries on air quality and noise levels. Project Scope: In Scope: Items defined in “Project Deliverables” Out of Scope: Any item not mentioned under “Project Deliverables” Milestones: Milestone Assigned To Target Date 1. Define sensor location and ensure power requirements are met COC 11.19.2021 2. Install four (4) air quality sensors Envirosuite 12.31.2021 3. Install four (4) noise loggers Envirosuite 12.31.2021 4. Begin 24/7 real‐time monitoring of all eight (8) sensors Envirosuite & COC 1.3.2022 5. Envirosuite Support team assigned and operational for COC Envirosuite 1.3.2022 6. Provide/attend training and provision two (2) licenses for Envirosuite Sentinel application Envirosuite & COC 1.13.2022 7. Build reports and alerts for sensor data output Envirosuite & COC 1.13.2022 8. Turn up stakeholder web portal Envirosuite 1.31.2022 9. Add existing five (5) public air quality sensors to Sentinel and stakeholder web portal Envirosuite 1.31.2022 Project Charter Project Charter: Pilot – Lehigh and Stevens Creek Noise and Pollution Monitoring 10. Provide proper public engagement (IOI, website, social media) on the stakeholder web portal COC 2.11.2022 11. Provide report to Council on pilot COC 7.17.2022 Project Team Members Team Member Organization Role Bill Mitchell COC Project Manager Greg Bracci Envirosuite Project Manager Andre Duurvoort COC Technical Lead – CMO Nidhi Mathur COC Technical Lead ‐ IT Chad Mosely COC Technical Lead – PW Andres Quijano Envirosuite Technical Lead ‐ Envirosuite Marilyn Monreal COC Procurement & Contract Admin Gilee Corral COC Team Member Funding Information Project Budget: $42,000 Person Hours: Medium 101‐600 hours Payment Schedule Amount Milestones Completed Estimated Date $10,500 Contract Signed November 19, 2021 $5,250 1 thru and including 7 January 13, 2022 $5,250 8 thru and including 10 February 11, 2022 $5,250 Uninterrupted (95% uptime) service for three months after milestone 4 March 31, 2022 $5,250 Uninterrupted (95% uptime) service for four months after milestone 4 April 30, 2022 $5,250 Uninterrupted (95% uptime) service for five months after milestone 4 May 30, 2022 $5,250 Uninterrupted (95% uptime) service for six months after milestone 4 June 30, 2022 Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 1 Form Updated Sept. 2019 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 $1,000,000 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 20 10 (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 basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO CA 00 01 covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. Not required. Consultant has provided written verification of no employees. 4. Professional Liability for professional acts, errors and omissions, as appropriate to Consultant’s profession, with limits no less than $1,000,000 per occurrence or $1,000,000 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. EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultant Contracts 2 Form Updated Sept. 2019 OTHER INSURANCE PROVISIONS The aforementioned insurance shall be endorsed and have all the following conditions and provisions: 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 and automobile liability policies. General Liability coverage can be provided in the 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 insurance. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Consultant’s insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Consultant waives any right to subrogation against City/Additional Insureds for recovery of damages to the extent said losses are covered by the insurance policies required herein. Specifically, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, agents and subconsultants. This provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Deductibles and Self-Insured Retentions Any deductible or self-insured retention must be declared to and approved by the City. At City’s option, either: the insurer must reduce or eliminate the deductible or self-insured retentions as respects the City/Additional Insureds; or Consultant must show proof of ability to pay losses and costs related investigations, claim administration and defense expenses. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the insured or the City. Acceptability of Insurers Insurers must be licensed to do business in California with an A.M. Best Rating of A-VII, or better. Verification of Coverage Consultant must furnish acceptable insurance certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements prior to commencement of the Contract. City retains the right to demand verification of compliance at any time during the 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 entitled 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 less than ninety (90) days prior written notice. Premier Tech - Certificate of Currency, Australia. Published 03/2019. ©2019 Chubb Insurance Australia Limited. Chubb®, its logos, and Chubb.Insured.℠ are protected trademarks of Chubb. Chubb10-570-0319. Policy Number 01IL546114 Named Insured Envirosuite Ltd Limits of Insurance Technology Professional Liability (Professional Indemnity) $10,000,000 Privacy and Network Security Liability Not Covered Section 1 Aggregate Limit (Technology Liability) $20,000,000 Section 2 Aggregate Limit (Cyber Enterprise Risk Management) Not Covered Public Liability $20,000,000 Product Liability $20,000,000 Note: Limits of Insurance, Excess, and Waiting Periods are as per the final bound Quotation. Policy Period From: 30/09/2021 LST To: 30/09/2022 LST Sent To bgunasti@pscinsurance.com.au Branch Sydney Date of Issue 30 September 2021 This certificate hereby certifies that cover has been granted subject to the exceptions, terms and conditions and definitions of the Policy (as amended from time to time, including after the date of this Certificate of Currency). Please refer to your agent, broker or the relevant Chubb office for further information or a copy of the Policy. Chubb Insurance Australia Limited has an “AA-” insurer financial strength rating given by Standard & Poor’s (Australia) Pty Limited. Signed at Sydney on behalf of Chubb Insurance Australia Limited. Joel Wakeford Underwriter Industry Practices Certificate of Currency PremierTech Policy Clean Redline - Envirosuite Inc., for Noise & Pollution Monitoring Final Audit Report 2022-01-06 Created:2022-01-06 By:Marilyn Monreal (Marilynm@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAfuTItukoqAcWqZhl68zYkBYhstlSsjM5 "Clean Redline - Envirosuite Inc., for Noise & Pollution Monitorin g" History Document created by Marilyn Monreal (Marilynm@cupertino.org) 2022-01-06 - 4:53:23 PM GMT- IP address: 69.181.110.140 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2022-01-06 - 4:59:25 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2022-01-06 - 6:46:33 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to Gregory C Bracci (greg.bracci@envirosuite.com) for signature 2022-01-06 - 6:46:36 PM GMT Email viewed by Gregory C Bracci (greg.bracci@envirosuite.com) 2022-01-06 - 7:01:47 PM GMT- IP address: 54.147.246.36 Document e-signed by Gregory C Bracci (greg.bracci@envirosuite.com) Signature Date: 2022-01-06 - 7:54:29 PM GMT - Time Source: server- IP address: 69.207.185.124 Document emailed to Christopher D. Jensen (christopherj@cupertino.org) for signature 2022-01-06 - 7:54:32 PM GMT Email viewed by Christopher D. Jensen (christopherj@cupertino.org) 2022-01-06 - 8:09:47 PM GMT- IP address: 172.225.89.81 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2022-01-06 - 8:48:48 PM GMT - Time Source: server- IP address: 136.24.42.212 Document emailed to Bill Mitchell (billm@cupertino.org) for signature 2022-01-06 - 8:48:51 PM GMT Email viewed by Bill Mitchell (billm@cupertino.org) 2022-01-06 - 9:01:33 PM GMT- IP address: 104.47.73.254 Document e-signed by Bill Mitchell (billm@cupertino.org) Signature Date: 2022-01-06 - 9:01:46 PM GMT - Time Source: server- IP address: 73.63.186.99 Document emailed to Lauren Sapudar (laurens@cupertino.org) for signature 2022-01-06 - 9:01:49 PM GMT Email viewed by Lauren Sapudar (laurens@cupertino.org) 2022-01-06 - 9:53:02 PM GMT- IP address: 69.149.42.28 Document e-signed by Lauren Sapudar (laurens@cupertino.org) Signature Date: 2022-01-06 - 9:53:23 PM GMT - Time Source: server- IP address: 69.149.42.28 Agreement completed. 2022-01-06 - 9:53:23 PM GMT