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22-061 Kitchell Amendment #1 dated 12-15-22 for Citywide Building Condition Assessment Phase 2
1 FIRST AMENDMENT TO AGREEMENT 458 BETWEEN THE CITY OF CUPERTINO AND KITCHELL CEM, INC. FOR CITYWIDE BUILDING CONDITION ASSESSMENT PHASE 2 This First Amendment to Agreement 458 between the City of Cupertino and Kitchell CEM, Inc., is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and Kitchell CEM, Inc., a Corporation (“Contractor”) whose address is 2450 Venture Oaks Way, Suite 500, Sacramento, CA 95833, and is made with reference to the following: RECITALS: A. On May 05, 2022, Agreement 458 (“Agreement”) was entered into by and between City and Contractor for Citywide Building Condition Assessment Phase 2. B. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Paragraph 3.1 of the Agreement is modified to read as follows: Term. This Agreement begins on the Effective Date and ends on June 30, 2023, unless terminated earlier as provided herein (“Contract Time”). The City’s appropriate department head or 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. 2. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. SIGNATURES CONTINUE ON THE FOLLOWING PAGE 2 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CITY OF CUPERTINO By Title Date APPROVED AS TO FORM City Attorney ATTEST: City Clerk Date KITCHELL CEM, INC. By Title Date EXPENDITURE DISTRIBUTION Item PO Number Amount Original Agreement 2022-494 $111,350.00 Amendment 1 Extend term to 06/30/2023 $0.00 Total $111,350.00 1429656.1 Wendy Cohen President Dec 15, 2022 Christopher D. Jensen Director of Public Works Dec 15, 2022 Dec 15, 2022 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 5/20/2022 ACIG Insurance Agency, Inc. 2600 N. Central Expwy. Suite 800 Richardson, TX 75080 972-702-9004 972-687-0601 www.acig.com Brian Callaghan accountmanagers@acig.com Kitchell CEM, Inc. 2450 Venture Oaks Way, Suite 500 Sacramento CA 95833 68341444 3 3 3 The City of Cupertino, its City Council, officers, officials, employees, agents, servants, and volunteers are included as additional insureds, with endorsement. Evidence of Coverage City of Cupertino 10300 Torre Ave Cupertino CA 95014 Professional Liability Retroactive Date: 11/11/1978 primary coverage and a waiver of subrogation in favor of to the extent required by written executed contract. Notice of cancellation applies via --See Attached Remarks Schedule-- A 10,000,000GL22A000786/1/2022 6/1/2023 100,000GL22B00078 (GL Excess)6/1/2022 6/1/2023A 3 GL22C00078 (GL Excess)6/1/2022 6/1/2023A 5,000 3 10,000,000 10,000,000 10,000,0003 3 B WCA000006822 6/1/2022 6/1/2023 1,000,000NBWCA0000020226/1/2022 6/1/2023 1,000,000 1,000,000 F Contr. Professional Pollution Liab.PCAB-5018306-0622 6/1/2022 6/1/2023 Per Claim $5,000,000*Aggregate $5,000,000 American Contractors Ins. Co. RRG 12300 ACIG Insurance Company 19984 Berkley Assurance Company 39462 3 68341444 | KITCHELL | 22/23 GL WC PL 5/5 | Abbie Fisher | 5/20/2022 12:07:57 PM (CDT) | Page 1 of 7 This certificate cancels and supersedes ALL previously issued certificates. ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: Professional/Pollution *Aggregate limit is total insurance available for all claims presented within the policy period for operations of insured. Limit will be reduced by payments of indemnity and/or expenses. KITCHELL ACIG Insurance Agency, Inc.Kitchell CEM, Inc. 2450 Venture Oaks Way, Suite 500 Sacramento CA 95833 25 Certificate of Liability (03/16) ADDENDUM/DOO HOLDER: ADDRESS: City of Cupertino 10300 Torre Ave Cupertino CA 95014 68341444 | KITCHELL | 22/23 GL WC PL 5/5 | Abbie Fisher | 5/20/2022 12:07:57 PM (CDT) | Page 2 of 7 This certificate cancels and supersedes ALL previously issued certificates. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 5/26/2022 IMA,Inc.-Colorado Division 1705 17th Street,Suite 100 Denver CO 80202 IMA Denver Team 303-534-4567 DenAccountTechs@imacorp.com National Fire Insurance Company of Hartford 20478 KITCORP Kitchell CEM Inc. 2450 Venture Oaks Way Suite 500 Sacramento,CA 95833 1892644494 A 5,000,000 X X X 7014861826 6/1/2022 6/1/2023 A Automobile Physical Damage N N 7014861826 6/1/2022 6/1/2023 Deductibles: Comprehensive Collision $1,000 $1,000 Certificate Holder is included as Additional Insured on the Automobile Liability Policy if required by written contract or agreement and with respect to work performed by Insured subject to the policy terms and conditions.A Waiver of Subrogation is provided in favor of Certificate Holder on the Automobile Liability Policy if required by written contract or agreement and with respect to work performed by Insured subject to the policy terms and conditions.This Insurance is Primary and Non-Contributory on the Automobile Liability Policy subject to the policy terms and conditions. City of Cupertino 10300 Torre Ave Cupertino CA 95014 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as policy effective date unless otherwise indicated above. Policy Effective: Policy No.: Endorsement No.: Insured: Premium $ Insurance Company: American Contractors Insurance Co. RRG ADDITIONAL INSURED – AUTOMATIC STATUS 1119 AS REQUIRED BY CONTRACT – BLANKET This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Any person or organization that you are required by written contract to include as an additional insured on this policy if th e contract is executed prior to the loss. A. Who Is An Insured (Section II) is amended to include as an insured any person or organization shown in the above SCHEDULE (called additional insured), but only with respect to liability for “bodily injury”, “property damage” or “personal and advertising injury” arising out of your premises or your operations for the additional insured, and only to the extent and for the minimum limits required in the written contract. B. The insurance provided to the additional insured is subject to the following limitations: 1. Unless a written contract specifically requires additional insured coverage for your completed operations, this insurance does not apply to “bodily injury” or “property damage” occurring after “your work” for the additional insured has been completed or after that portion of “your work” out of which the “bodily injury” or “property damage” arises has been put to its intended use by any person or organization, whichever occurs first. 2. Unless specifically required by written contract, this insurance provides additional insured coverage only for liability for “bodily injury”, “property damage” or “personal and advertising injury” to the extent caused by the named insured’s acts or omissions or the acts or omissions of those acting on the named insured’s behalf. 3. This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury” for which the additional insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement except to the extent that the additional insured would have been obligated to pay such damages in the absence of the contract or agreement. 4. This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury” arising out of the rendering or failure to render any professional services by any insured or on any insured’s behalf, including: a) The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, drawings or specifications; or b) Supervisory, inspection, architectural, or engineering services. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the “occurrence” which caused the “bodily injury” or “property damage”, or the offense which caused the “personal and advertising injury”, involved the rendering of, or the failure to render, any professional architectural, engineering or surveying services. 5. This endorsement shall not apply to a person or organization if any other additional insured endorsement attached to this policy specifically applies to that person or organization. 6. The insurance afforded herein only applies to the extent permitted by applicable state law, including statutes governing additional insured coverage in the construction industry. 7. The insurance afforded to the additional insured shall not exceed the minimum limits required in the written contract. C. In no event shall the insurance provided to the additional insured exceed the minimum coverage required by the written contract, including but not limited to minimum limits, minimum scope of coverage, or minimum duration of coverage. If a written contract or agreement requires that additional insured status be provided by the use of specified edition dates of the ISO CG2010 and/or CG2037, then the terms of that endorsement are incorporated into this endorsement as respects such additional insured and shall supersede the coverage grant and limitations in Sections A. and B. of this endorsement. In the event that CG2010 and/or CG2037 are required but no edition dates are specified, the 04/13 editions shall apply. D. This insurance is excess to any other insurance, whether primary, excess, contingent or on any other basis, available to the additional insured unless a written contract requires that this insurance be primary or primary and non-contributing. However, this insurance is always excess to other insurance, whether primary, excess, contingent or on any other basis, when the additional insured has been added to the other insurance as an additional insured. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, c onditions, provisions, agreements or limitations of the mentioned Policy, other than as above stated. Kitchell CEM, Inc. GL22A000786/1/2022 68341444 | KITCHELL | 22/23 GL WC PL 5/5 | Abbie Fisher | 5/20/2022 12:07:57 PM (CDT) | Page 3 of 7 This certificate cancels and supersedes ALL previously issued certificates. 336 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as policy effective date unless otherwise indicated above. Policy Effective: Policy No.: Endorsement No.: Insured: Premium $ Insurance Company: American Contractors Insurance Co RRG NOTICE OF CANCELLATION, NONRENEWAL OR MATERIAL CHANGE – CERTIFICATE HOLDERS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART The certificate of insurance holders shown in the schedule below have requested that they receive written notice of cancellation, nonrenewal or material change with respect to this policy. If we decide to cancel, nonrenew or make a material change to this policy, we agree to mail or deliver sixty (60) days advance written notice to the certificate of insurance holders shown in the schedule below. However, if we are cancelling or nonrenewing due to nonpayment of premium, we will only provide the certificate of insurance holders shown in the schedule below with ten (10) days advance written notice. The notice of cancellation, nonrenewal or material change will be mailed to the addresses provided to us by the certificate of insurance issuer. Proof of mailing will be considered sufficient proof of our good faith attempt to provide notice of cancellation, nonrenewal or material change to the certificate of insurance holders shown in the schedule below. SCHEDULE All certificate of insurance holders where written notice of cancellation, nonrenewal or material change to this policy is required by written contract, permit or agreement with the Named Insured. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements or limitations of the mentioned Policy, other than as above stated. Kitchell CEM, Inc. GL22A000786/1/2022 68341444 | KITCHELL | 22/23 GL WC PL 5/5 | Abbie Fisher | 5/20/2022 12:07:57 PM (CDT) | Page 4 of 7 This certificate cancels and supersedes ALL previously issued certificates. 205 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as policy effective date unless otherwise indicated above. Policy Effective Date: Policy No.: Endorsement No.: Insured: Premium $ Insurance Company: American Contractors Insurance Co RRG WAIVER OF TRANSFER OF RIGHTS OF RECOVERY This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person(s) or Organization(s): Any person or organization for whom you have agreed by written contract to furnish this waiver. The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV – COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or “your work” done under a contract with that person or organization and included in the “products-completed operations hazard”. This waiver applies only to the person or organization shown in the Schedule above. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements or limitations of the mentioned Policy, other than as above stated. Kitchell CEM, Inc. GL22A000786/1/2022 68341444 | KITCHELL | 22/23 GL WC PL 5/5 | Abbie Fisher | 5/20/2022 12:07:57 PM (CDT) | Page 5 of 7 This certificate cancels and supersedes ALL previously issued certificates. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 99 06 01 (Ed. 03-13) NOTICE OF CANCELLATION, NONRENEWAL OR MATERIAL CHANGE ENDORSEMENT In the event of cancellation, nonrenewal or other material change of the policy, we will mail advance notice to the person or organization named in the Schedule. The number of days advance notice is shown in the Schedule. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule 1. Number of days advance notice: 60 days. However, in the case of cancellation or nonrenewal due to nonpayment of premium, only 10 days advance notice will be provided. 2. Notice will be mailed to: All certificate holders where written notice of cancellation, nonrenewal or material change to this policy is required by written contract, permit or agreement with the Named Insured. The notice will be mailed to the addresses provided to us by the certificate of insurance issuer. Proof of mailing will be considered sufficient proof of our good faith attempt to provide written notice. This endorsement is not applicable in the states of Arizona, Connecticut, New Jersey, North Carolina, Texas or Wisconsin. This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as Policy Effective Date unless otherwise indicated above. Policy Effective Date: Policy No. Endorsement No. Premium $ Insured Carrier Name/Code: WC 99 06 01 (Ed. 03-13) Kitchell CEM, Inc. ACIG Insurance Company WCA0000068226/1/2022 68341444 | KITCHELL | 22/23 GL WC PL 5/5 | Abbie Fisher | 5/20/2022 12:07:57 PM (CDT) | Page 6 of 7 This certificate cancels and supersedes ALL previously issued certificates. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 04-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT−CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our 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 * % of the California workers’ compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description Whomever the named insured is required by written contract executed prior to loss to waive rights of recovery against. No Additional Premium to be applied This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as Policy Effective Date unless otherwise indicated above. Policy Effective Date: Policy No. Endorsement No. Premium $ Insured Carrier Name/Code: WC 04 03 06 (Ed. 04-84) Kitchell CEM, Inc. ACIG Insurance Company WCA0000068226/1/2022 68341444 | KITCHELL | 22/23 GL WC PL 5/5 | Abbie Fisher | 5/20/2022 12:07:57 PM (CDT) | Page 7 of 7 This certificate cancels and supersedes ALL previously issued certificates. Business Auto Policy Policy Endorsement ADDITIONAL INSURED - PRIMARY AND NON-CONTRIBUTORY It is understood and agreed that this endorsement amends the BUSINESS AUTO COVERAGE FORM as follows: SCHEDULE Name of Additional Insured Person Or Organization ANY PERSON OR ORGANIZATION THAT YOU ARE REQUIRED BY WRITTEN CONTRACT OR WRITTEN AGREEMENT TO NAME AS AN ADDITIONAL INSURED 1.In conformance with paragraph A.1.c. of Who Is An Insured of Section II - LIABILITY COVERAGE, the person or organization scheduled above is an insured under this policy. 2.The insurance afforded to the additional insured under this policy will apply on a primary and non-contributory basis if you have committed it to be so in a written contract or written agreement executed prior to the date of the “accident” for which the additional insured seeks coverage under this policy. All other terms and conditions of the policy remain unchanged This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy. Endorsement No: 43; Page: 1 of 1 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA71527XX (10-2012) Endorsement Effective Date: Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Policy Page: 188 of 197 Policy Effective Date: 06/01/2022 Policy No: BUA 7014861826 Business Auto Policy Policy Endorsement CONTRACTORS EXTENDED COVERAGE ENDORSEMENT - BUSINESS AUTO PLUS I. A. 1. 2. a. b. (1) (2) 3. 4. 1. 2. B. 1. 2. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM LIABILITY COVERAGE Who Is An Insured The following is added to Section II, Paragraph A.1., Who Is An Insured: a. Any incorporated entity of which the Named Insured owns a majority of the voting stock on the date of inception of this Coverage Form; provided that, b. The insurance afforded by this provision A.1. does not apply to any such entity that is an insured under any other liability "policy" providing auto coverage. Any organization you newly acquire or form, other than a limited liability company, partnership or joint venture, and over which you maintain majority ownership interest. The insurance afforded by this provision A.2.: Is effective on the acquisition or formation date, and is afforded only until the end of the policy period of this Coverage Form, or the next anniversary of its inception date, whichever is earlier. Does not apply to: Bodily injury or property damage caused by an accident that occurred before you acquired or formed the organization; or Any such organization that is an insured under any other liability "policy" providing auto coverage. Any person or organization that you are required by a written contract to name as an additional insured is an insured but only with respect to their legal liability for acts or omissions of a person, who qualifies as an insured under SECTION II – WHO IS AN INSURED and for whom Liability Coverage is afforded under this policy. If required by written contract, this insurance will be primary and non-contributory to insurance on which the additional insured is a Named Insured. 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. "Policy", as used in this provision A. Who Is An Insured, includes those policies that were in force on the inception date of this Coverage Form but: Which are no longer in force; or Whose limits have been exhausted. Bail Bonds and Loss of Earnings Section II, Paragraphs A.2. (2) and A.2. (4) are revised as follows: In a.(2), the limit for the cost of bail bonds is changed from $2,000 to $5,000; and In a.(4), the limit for the loss of earnings is changed from $250 to $500 a day. Endorsement No: 41; Page: 1 of 4 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Policy Page: 183 of 197 Policy Effective Date: 06/01/2022 Policy No: BUA 7014861826 Business Auto Policy Policy Endorsement C. II. A. B. a. b. C. a. D. a. b. c. d. e. (1) (2) E. Fellow Employee Section II, Paragraph B.5 does not apply. Such coverage as is afforded by this provision C. is excess over any other collectible insurance. PHYSICAL DAMAGE COVERAGE Glass Breakage – Hitting A Bird Or Animal – Falling Objects Or Missiles The following is added to Section III, Paragraph A.3.: With respect to any covered auto , any deductible shown in the Declarations will not apply to glass breakage if such glass is repaired, in a manner acceptable to us, rather than replaced. Transportation Expenses Section III, Paragraph A.4.a. is revised, with respect to transportation expense incurred by you, to provide: $60 per day, in lieu of $20; subject to $1,800 maximum, in lieu of $600. Loss of Use Expenses Section III, Paragraph A.4.b. is revised, with respect to loss of use expenses incurred by you, to provide: $1,000 maximum, in lieu of $600. Hired "Autos" The following is added to Section III. Paragraph A.: 5. Hired "Autos" If Physical Damage coverage is provided under this policy, and such coverage does not extend to Hired Autos, then Physical Damage coverage is extended to: Any covered auto you lease, hire, rent or borrow without a driver; and Any covered auto hired or rented by your employee without a driver, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. The most we will pay for any one accident or loss is the actual cash value, cost of repair, cost of replacement or $75,000, whichever is less, minus a $500 deductible for each covered auto. No deductible applies to loss caused by fire or lightning. The physical damage coverage as is provided by this provision is equal to the physical damage coverage(s) provided on your owned autos. Such physical damage coverage for hired autos will: Include loss of use, provided it is the consequence of an accident for which the Named Insured is legally liable, and as a result of which a monetary loss is sustained by the leasing or rental concern. Such coverage as is provided by this provision will be subject to a limit of $750 per accident. Airbag Coverage The following is added to Section III, Paragraph B.3.: The accidental discharge of an airbag shall not be considered mechanical breakdown. Endorsement No: 41; Page: 2 of 4 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Policy Page: 184 of 197 Policy Effective Date: 06/01/2022 Policy No: BUA 7014861826 Business Auto Policy Policy Endorsement F. c. d. G. a. b. c. d. (1) (2) III. 1. a. b. (1) (2) 2. IV. A. Electronic Equipment Section III, Paragraphs B.4.c and B.4.d. are deleted and replaced by the following: Physical Damage Coverage on a covered auto also applies to loss to any permanently installed electronic equipment including its antennas and other accessories A $100 per occurrence deductible applies to the coverage provided by this provision. Diminution In Value The following is added to Section III, Paragraph B.6.: Subject to the following, the diminution in value exclusion does not apply to: Any covered auto of the private passenger type you lease, hire, rent or borrow, without a driver for a period of 30 days or less, while performing duties related to the conduct of your business; and Any covered auto of the private passenger type hired or rented by your employee without a driver for a period of 30 days or less, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. Such coverage as is provided by this provision is limited to a diminution in value loss arising directly out of accidental damage and not as a result of the failure to make repairs; faulty or incomplete maintenance or repairs; or the installation of substandard parts. The most we will pay for loss to a covered auto in any one accident is the lesser of: $5,000; or 20% of the auto's actual cash value (ACV). Drive Other Car Coverage – Executive Officers The following is added to Sections II and III: Any auto you don't own, hire or borrow is a covered auto for Liability Coverage while being used by, and for Physical Damage Coverage while in the care, custody or control of, any of your "executive officers", except: An auto owned by that "executive officer" or a member of that person's household; or An auto used by that "executive officer" while working in a business of selling, servicing, repairing or parking autos. Such Liability and/or Physical Damage Coverage as is afforded by this provision. Equal to the greatest of those coverages afforded any covered auto; and Excess over any other collectible insurance. For purposes of this provision, "executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document, and, while a resident of the same household, includes that person's spouse. Such "executive officers" are insureds while using a covered auto described in this provision. BUSINESS AUTO CONDITIONS Duties In The Event Of Accident, Claim, Suit Or Loss The following is added to Section IV, Paragraph A.2.a.: Endorsement No: 41; Page: 3 of 4 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Policy Page: 185 of 197 Policy Effective Date: 06/01/2022 Policy No: BUA 7014861826 Business Auto Policy Policy Endorsement (4) (6) B. C. D. E. a. V. Your employees may know of an accident or loss. This will not mean that you have such knowledge, unless such accident or loss is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. The following is added to Section IV, Paragraph A.2.b.: Your employees may know of documents received concerning a claim or suit. This will not mean that you have such knowledge, unless receipt of such documents is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. Transfer Of Rights Of Recovery Against Others To Us The following is added to Section IV, Paragraph A.5. Transfer Of Rights Of Recovery Against Others To Us: We waive any right of recovery we may have, because of payments we make for injury or damage, against any person or organization for whom or which you are required by written contract or agreement to obtain this waiver from us. This injury or damage must arise out of your activities under a contract with that person or organization. You must agree to that requirement prior to an accident or loss. Concealment, Misrepresentation or Fraud The following is added to Section IV, Paragraph B.2.: Your failure to disclose all hazards existing on the date of inception of this Coverage Form shall not prejudice you with respect to the coverage afforded provided such failure or omission is not intentional. Other Insurance The following is added to Section IV, Paragraph B.5.: Regardless of the provisions of Paragraphs 5.a. and 5.d. above, the coverage provided by this policy shall be on a primary non-contributory basis. This provision is applicable only when required by a written contract. That written contract must have been entered into prior to Accident or Loss . Policy Period, Coverage Territory Section IV, Paragraph B. 7.(5).(a). is revised to provide: 45 days of coverage in lieu of 30 days. DEFINITIONS Section V. paragraph C. is deleted and replaced by the following: Bodily injury means bodily injury, sickness or disease sustained by a person, including mental anguish, mental injury or death resulting from any of these. Endorsement No: 41; Page: 4 of 4 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Policy Page: 186 of 197 Policy Effective Date: 06/01/2022 Policy No: BUA 7014861826 Business Auto Policy Policy Endorsement NOTICE OF CANCELLATION TO CERTIFICATEHOLDERS It is understood and agreed that: If you have agreed under written contract to provide notice of cancellation to a party to whom the Agent of Record has issued a Certificate of Insurance, and if we cancel a policy term described on that Certificate of Insurance for any reason other than nonpayment of premium, then notice of cancellation will be provided to such Certificateholders at least 30 days in advance of the date cancellation is effective. If notice is mailed, then proof of mailing to the last known mailing address of the Certificateholder on file with the Agent of Record will be sufficient to prove notice. Any failure by us to notify such persons or organizations will not extend or invalidate such cancellation, or impose any liability or obligation upon us or the Agent of Record. All other terms and conditions of the policy remain unchanged This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy. Endorsement No: 42; Page: 1 of 1 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA68021XX (02-2013) Endorsement Effective Date: Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Policy Page: 187 of 197 Policy Effective Date: 06/01/2022 Policy No: BUA 7014861826 Citywide Building Condition Assessment Phase 2 1 of 11 Design Professional Agr (Single) / October 2021 DESIGN PROFESSIONAL SERVICES AGREEMENT (SINGLE) WITH KITCHELL CEM, INC. 1. PARTIES This Agreement is made by and between the City of Cupertino, a municipal corporation (“City”), and Kitchell CEM, Inc. (“Consultant”), a Corporation for Citywide Building Condition Assessment Phase 2 (“Project”), and is effective on the last date signed below (“Effective Date”). 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. Consultant further agrees to carry out its work in compliance with any applicable local, State, or Federal order regarding COVID-19. 2.2 Additional Services. City may request at any time during the Contract Time that Consultant provide additional services for the Project, 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 December 31, 2022, unless terminated earlier as provided herein (“Contract Time”). The City’s appropriate department head or 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. 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 Citywide Building Condition Assessment Phase 2 2 of 11 Design Professional Agr (Single) / October 2021 work on each separate task upon receiving City’s Notice to Proceed (“NTP”), and must complete each task within the time specified in Exhibit B. 3.3 Time is of the essence for the performance 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 $111,350.00 (“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 $74,100.00 (“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, sub-Consultants’ 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 $37,250.00 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”). Consultant 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 thirty (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. 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 thirty (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. Citywide Building Condition Assessment Phase 2 3 of 11 Design Professional Agr (Single) / October 2021 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 sub- Consultants 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 sub-Consultants 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, if required by the Cupertino Municipal Code. 5.4 Sub-Consultants. Unless prior written approval from City is obtained, only Consultant’s employees and sub-Consultants whose names are included in this Agreement and incorporated Exhibits may provide Services under this Agreement. Consultant must require all sub-Consultants to furnish proof of insurance for workers’ compensation, commercial liability, auto, and professional liability in reasonable conformity to the insurance required of Consultant. The terms and conditions of this Agreement shall be binding on all sub-Consultants 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 Benefits and Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. Consultant 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. Consultant shall be solely liable for and obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to Consultant’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 Consultant. 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 Consultant, or any of its employees, agents, or subcontractors, is an employee for any purpose, then Consultant agrees to a reduction in amounts payable under this Agreement, or to promptly remint to City any payments due by the City Citywide Building Condition Assessment Phase 2 4 of 11 Design Professional Agr (Single) / October 2021 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. 5.7 Errors and Omissions. Consultant is solely responsible for its errors and omissions and those of its sub-Consultants, 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 it only to perform 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 information or work, in any medium, prepared by Consultant under this Agreement (“Work Product”), 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 a third-party without prior written approval by City 7.2 Copyright. To the extent permitted by Title 17 of the U.S. Code, all copyrights to the Work Product prepared/created by Consultant and its sub-Consultants 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 hereby assigns to City all copyrights to the Work Product when and as created, and shall require sub-Consultants to do the same. 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 sub-Consultants 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 Citywide Building Condition Assessment Phase 2 5 of 11 Design Professional Agr (Single) / October 2021 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 supporting documents must be kept separate from other files and maintained for a period of four (4) 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 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 8 survives the expiration/termination of this Agreement. 8.3 Consultant acknowledges that certain documents generated or received by Consultant in connection with the performance of this Agreement, including but not limited to correspondence between Consultant and any third party, are public records under the California Public Records Act, California Government Code section 6250 et seq. Consultant 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 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 fifty percent (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 te rm of this Agreement and for one (1) 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 Agreement, 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 or active Citywide Building Condition Assessment Phase 2 6 of 11 Design Professional Agr (Single) / October 2021 negligence or willful misconduct of City personnel, Consultant agrees to indemnify, defend, and hold harmless the City as follows: a. Indemnity for Design Professional Liability: With respect to the performance of design professional services by a design professional as defined in California Civil Code Section 2782.8, to the fullest extent permitted by law, Consultant shall indemnify and hold harmless City, its officers, officials, agents, employees, and volunteers (collectively and/or individually “City”) from and against any and all liabilities, claims, damages, losses, costs, or expenses (including, without limitation, costs, attorneys’ fees, and expert fees of litigation and alternative dispute resolution) of every nature to the extent arising out of, pertaining to, or relating to the negligence, recklessness, or willful misconduct of Consultant or any of its officers, employees, servants, agents, or subcontractors (collectively and/or individually “Consultant”), in the performance of this Agreement or failure to comply with any obligations of the Agreement. If it is finally determined (through a non-appealable judgment or an agreement between City and Consultant) that liability is caused by the comparative negligence or willful misconduct of City, then Consultant’s indemnification and hold harmless obligation shall not exceed Consultant’s finally determined percentage of liability based upon the comparative fault of Consultant. Irrespective of any language to the contrary in this Agreement, the Consultant has no duty to provide or to immediately pay for an up-front defense of City against unproven claims or allegations, but shall reimburse those litigation costs and expenses (including, without limitation, attorneys’ fees, and expert fees) incurred by the City to the extent caused by the negligence, recklessness, or willful misconduct of Consultant. In no event shall the cost to defend charged to Consultant exceed Consultant’s proportional percentage of fault, except as described in Section 2782.8(a) and (e) of the California Civil Code. b. Claims Involving Intellectual Property. Consultant shall indemnify, defend, and hold harmless Indemnitees from and against any claim involving intellectual property, infringement, or violation 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 negligence, recklessness, or willful 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. Except as provided in subsections 11.1(a) and (b), to the fullest extent permitted by law, Consultant shall hold harmless, defend (with counsel agreed to by City), and indemnify City and its officers, officials, agents, employees, and volunteers (collectively and/or individually “City”) from and against any and all liability, claim, loss, damage, expense, costs (including, without limitation, costs, attorneys’ fees, and expert fees of litigation) of every nature arising out of, related to, or in connection with the performance of work hereunder by Consultant or any of its officers, employees, servants, agents, or subcontractors, or the failure of the same to comply with any of the obligations contained in this Agreement, except such loss or damage which was caused by the sole negligence or sole willful misconduct of the City. Consultant’s duty to defend applies immediately, whether or not liability is established. An allegation or determination that persons other than Contractor are responsible for the claim does not relieve Contractor from its separate and distinct obligation to defend as stated herein. Citywide Building Condition Assessment Phase 2 7 of 11 Design Professional Agr (Single) / October 2021 11.2 Consultant will assist City, at no additional cost, in the defense of any claim, dispute, or lawsuit 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 construed to give rise to an implied right of indemnity in favor of Consultant against any Indemnitee. 11.3 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 may deduct money from Consultant’s payments to cover moneys due to City. 11.4 Consultant 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 Consultant 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. 11.5 This Section 11 shall survive expiration or termination 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 City 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 law, rule or regulation. 13.2 Labor Laws. Consultant shall comply with all labor laws applicable to this Agreement. If the Services 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 Citywide Building Condition Assessment Phase 2 8 of 11 Design Professional Agr (Single) / October 2021 Government Code Section 12900 and 11135, and Labor Code Section. 1735, 1777, and 3077.5. Consistent with City policy prohibiting it, Consultant understands that harassment and discrimination by Consultant or any of its sub-Consultants toward a job applicant, an employee, a City employee, or any other person is strictly prohibited. Consultant agrees to provide records and documentation to the City on request necessary to monitor compliance with this provision. 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 Title 2 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 13 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 Ryan Do, 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 James Wilson, 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. 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 (10%) 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. Citywide Building Condition Assessment Phase 2 9 of 11 Design Professional Agr (Single) / October 2021 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 pa yment 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 thirty (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 18 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 21. ENTIRE AGREEMENT This Agreement represents the full and complete understanding of the Parties, 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 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 this 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. Citywide Building Condition Assessment Phase 2 10 of 11 Design Professional Agr (Single) / October 2021 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, 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. 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: Office of the City Manager 10300 Torre Ave. Cupertino, CA 95014 Attention:Ryan Do Email: RyanD@cupertino.org To Consultant: Kitchell CEM, Inc. 2450 Venture Oaks Way, Suite 500 Sacramento, CA 95833 Attention: James Wilson Email: jmwilson@kitchell.com 27. 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. Citywide Building Condition Assessment Phase 2 11 of 11 Design Professional Agr (Single) / October 2021 IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the Effective Date stated earlier in this Agreement. CITY OF CUPERTINO KITCHELL CEM, INC. A Municipal Corporation By Name Title Date By Name Title Date APPROVED AS TO FORM: CHRISTOPHER D. JENSEN Cupertino City Attorney ATTEST: KIRSTEN SQUARCIA City Clerk Date Wendy Cohen Wendy Cohen President May 5, 2022 Christopher D. Jensen Matt Morley Director of Public Works May 5, 2022 May 5, 2022 99 South Almaden Blvd., Suite 600 San Jose, CA 95113 Phone (669) 231-8700 · Fax (669) 8701 Page 1 of 4 February 25, 2022 Mr. Ryan Do Program Manager Public Works RE: City of Cupertino Facility Condition Assessment Dear Mr. Do, Kitchell CEM is pleased to provide a proposal to provide professional consulting services for the building systems assessment and maintenance program development for the facilities listed in the Comprehensive Facility Conditions and Use Efficiency Assessment Report (December 2018) provided by the City of Cupertino totaling Forty- Six (46) Facilities covering 150,000 square feet of building space. In the event we have not fully understood or addressed a requirement of this engagement, Kitchell is prepared to review and adjust this proposal as necessary. Our scope of work will be as follows: Scope of Work: Task 1: MEP System Assessment Validation Study of Facility Conditions Assessments: Kitchell will review the existing facility condition assessment report provided by the City of Cupertino and perform a Validation Study of the Facility Condition Assessment as noted below. Mechanical/Electrical/Plumbing System: Visually examine the mechanical, electrical, and plumbing systems to determine condition, and remaining useful life. Electrical systems to be visually examined include power distribution, emergency power, lighting systems and fire alarm. Mechanical systems to be reviewed include HVAC, plumbing equipment, and visible waste and vent lines, and pumps and motors. Life Safety Hazards: Kitchell will immediately notify the City should a life safety hazard be observed at any City facility. Upon completion of the visual walk-through survey and asset tagging, Kitchell shall perform all tasks necessary to compile and prepare a draft report. An estimated replacement cost (ERC) for each deficiency identified will be prepared. The ERC shall be a budget level conceptual cost estimate expressed in an agreed upon method. Kitchell will also provide a forward looking analysis and recommendations for the lifecycle replacement of the major systems and equipment for the 20 year life of the building. The City will review the draft report and render comments to Kitchell. Kitchell shall incorporate City comments, prepare and deliver a final report to City in digital and editable (spreadsheet only) formats. Exhibits A, B, C 99 South Almaden Blvd., Suite 600 San Jose, CA 95113 Phone (669) 231-8700 · Fax (669) 8701 Page 2 of 4 Kitchell will develop a digital dashboard utilizing the FCA report. The dashboard will be a graphical representation of the data and will be developed using Microsoft Power Bi platform. Compensation | Compensation for the scope of work shall be a fixed fee in the amount of Forty-Seven Thousand Five Hundred Dollars ($47,500.00). Task 1A (Add Alt) : Asset Tagging Provide asset tagging for major MEP system components (including systems over $8,000). Systems will include Air handling units, VAV & VRF systems, Fan Coils, Exhaust Fans, Transformers, Pumps, Boilers, domestic water heaters, panels, etc. Kitchell will develop an asset list via excel files showing equipment Make, Model, Serial Number, and other relevant data. Compensation | Compensation for the scope of work shall be a fixed fee in the amount of Four Thousand Six Hundred Dollars ($4,600.00). Task 1B (Add Alt) : Architectural Element Assessment Validation Study of Facility Conditions Assessments: Kitchell will review the existing facility condition assessment report provided by the City of Cupertino and perform a Validation Study of the Facility Condition Assessment as noted below. The scope of work performed will be incorporated into the MEP Assessment Report. Architectural Elements: Visually examine the roof material, flashing, penetrations, skylights and other appurtenances on the roof. Roofing to be evaluated for condition and remaining useful life. Exterior walls, windows and doors will be examined from the ground for irregularities, structural damage, wear and energy consuming issues. Interior finishes (paint/carpet/ceiling finishes) will be observed for deficiencies and wear and remaining useful life. The site will be observed for pavement damage, curb damage, and obvious access barriers. No destructive tests or observations will be employed. Water Intrusion Observation: Conduct a visual evaluation of the building envelope to include roofing, exterior skin, and windows. Structural Assessment: The scope of Kitchell’s structural assessment in limited to the visual observation and notation of apparent structural deficiencies and does not include calculations or analysis. Upon completion of the visual walk-through survey and asset tagging, Kitchell shall perform all tasks necessary to compile and prepare a draft report. An estimated replacement cost (ERC) for each deficiency identified will be prepared. The ERC shall be a budget level conceptual cost estimate expressed in an agreed upon method. Kitchell will also provide a forward looking analysis and recommendations for the lifecycle replacement of the major systems and equipment for the 20 year life of the building. The City will review the draft 99 South Almaden Blvd., Suite 600 San Jose, CA 95113 Phone (669) 231-8700 · Fax (669) 8701 Page 3 of 4 report and render comments to Kitchell. Kitchell shall incorporate City comments, prepare and deliver a final report to the City in digital and editable (spreadsheet only) formats. Kitchell will develop a digital dashboard utilizing the FCA report. The dashboard will be a graphical representation of the data and will be developed using Microsoft Power Bi platform. Compensation | Compensation for the scope of work shall be a fixed fee in the amount of Twenty-Two Thousand Dollars ($22,000.00). Task 2: Maintenance Program Development and Recommendations: Kitchell shall review the list of assets from Task 1 of this scope of work and shall develop the following “forward looking” Life Cycle Cost and Best Practice methods to implement or perform: · Preventive and Predictive Maintenance activities, inspections, and testing practices and frequencies that are code or compliance related, i.e. Initial and 5 year Arc Flash Hazard Studies, Infrared Scanning, Elevator Load Testing, etc · Predictive Component replacement costs that exceed $8,000.00 per occurrence within the life cycle of the assets (compressors, motors, coils, etc) · Best Practice methods intended to Increase the life expectancy of the assets, identify or prevent failures and repairs, address safety items or risk o Component fluid testing and analysis; fuel, oil, coolants o Leak Detection devices o Other Kitchell shall deliver this data within a spreadsheet that can be easily sorted by; asset type, facility, budget year, etc. Additionally, Kitchell shall work collaboratively with the City to incorporate this data into the digital dashboard developed for Task 1 of this scope of work. Compensation | Compensation for the scope of work shall be a fixed fee in the amount of Thirty-Seven Thousand Two Hundred Fifty Dollars ($37,250.00). Schedule | The project schedule will be based upon on a mutually agreed schedule between the City and Kitchell. 99 South Almaden Blvd., Suite 600 San Jose, CA 95113 Phone (669) 231-8700 · Fax (669) 8701 Page 4 of 4 Additional Services | If additional work is required beyond what is noted above, Kitchell will provide services for these scope of work items under a separate proposal. No additional services will be performed without receiving written permission from the City. If you have any questions regarding this proposal, please do not hesitate to call. Sincerely, Sergio Rodriguez, PE, LEED AP, CPMP Operations Manager, Engineering and Architectural Services Exh. D-Insurance Requirements for Design Professionals & Consultants Contracts 1 Form Updated Jan. 2022 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 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 $2,000,000 per occurrence or claim, $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: EXHIBIT D Insurance Requirements Design Professionals & Consultants Contracts Exh. D-Insurance Requirements for Design Professionals & Consultants Contracts 2 Form Updated Jan. 2022 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. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 3/3/2022 ACIG Insurance Agency, Inc. 2600 N. Central Expwy. Suite 800 Richardson, TX 75080 972-702-9004 972-687-0601 www.acig.com Brian Callaghan accountmanagers@acig.com Kitchell CEM, Inc. 2450 Venture Oaks Way, Suite 500 Sacramento CA 95833 67046604 3 3 3 The City of Cupertino, its City Council, officers, officials, employees, agents, servants, and volunteers are included as additional insureds, with endorsement. Evidence of Coverage City of Cupertino 10300 Torre Ave Cupertino CA 95014 Professional Liability Retroactive Date: 11/11/1978 primary coverage and a waiver of subrogation in favor of to the extent required by written executed contract. Notice of cancellation applies via --See Attached Remarks Schedule-- A 10,000,000GL21A000786/1/2021 6/1/2022 100,000GL21B00078 (GL Excess)6/1/2021 6/1/2022A 3 GL21C00078 (GL Excess)6/1/2021 6/1/2022A 5,000 3 10,000,000 10,000,000 10,000,0003 3 B WCA000006821 6/1/2021 6/1/2022 1,000,000NBWCA0000020216/1/2021 6/1/2022 1,000,000 1,000,000 F Contr. Professional Pollution Liab.PCAB-5014625-0621 6/1/2021 6/1/2022 Per Claim $5,000,000*Aggregate $5,000,000 American Contractors Ins. Co. RRG 12300 ACIG Insurance Company 19984 Berkley Assurance Company 39462 3 67046604 | KITCHELL | 21/22 GL WC PL 5/5 | Abbie Fisher | 3/3/2022 4:07:23 PM (CST) | Page 1 of 7 This certificate cancels and supersedes ALL previously issued certificates. ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: Professional/Pollution *Aggregate limit is total insurance available for all claims presented within the policy period for operations of insured. Limit will be reduced by payments of indemnity and/or expenses. KITCHELL ACIG Insurance Agency, Inc.Kitchell CEM, Inc. 2450 Venture Oaks Way, Suite 500 Sacramento CA 95833 25 Certificate of Liability (03/16) ADDENDUM/DOO HOLDER: ADDRESS: City of Cupertino 10300 Torre Ave Cupertino CA 95014 67046604 | KITCHELL | 21/22 GL WC PL 5/5 | Abbie Fisher | 3/3/2022 4:07:23 PM (CST) | Page 2 of 7 This certificate cancels and supersedes ALL previously issued certificates. This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as policy effective date unless otherwise indicated above. Policy Effective: Policy No.: Endorsement No.: Insured: Premium $ Insurance Company: American Contractors Insurance Co. RRG ADDITIONAL INSURED – AUTOMATIC STATUS 1119 AS REQUIRED BY CONTRACT – BLANKET This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Any person or organization that you are required by written contract to include as an additional insured on this policy if th e contract is executed prior to the loss. A. Who Is An Insured (Section II) is amended to include as an insured any person or organization shown in the above SCHEDULE (called additional insured), but only with respect to liability for “bodily injury”, “property damage” or “personal and advertising injury” arising out of your premises or your operations for the additional insured, and only to the extent and for the minimum limits required in the written contract. B. The insurance provided to the additional insured is subject to the following limitations: 1. Unless a written contract specifically requires additional insured coverage for your completed operations, this insurance does not apply to “bodily injury” or “property damage” occurring after “your work” for the additional insured has been completed or after that portion of “your work” out of which the “bodily injury” or “property damage” arises has been put to its intended use by any person or organization, whichever occurs first. 2. Unless specifically required by written contract, this insurance provides additional insured coverage only for liability for “bodily injury”, “property damage” or “personal and advertising injury” to the extent caused by the named insured’s acts or omissions or the acts or omissions of those acting on the named insured’s behalf. 3. This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury” for which the additional insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement except to the extent that the additional insured would have been obligated to pay such damages in the absence of the contract or agreement. 4. This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury” arising out of the rendering or failure to render any professional services by any insured or on any insured’s behalf, including: a) The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, drawings or specifications; or b) Supervisory, inspection, architectural, or engineering services. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the “occurrence” which caused the “bodily injury” or “property damage”, or the offense which caused the “personal and advertising injury”, involved the rendering of, or the failure to render, any professional architectural, engineering or surveying services. 5. This endorsement shall not apply to a person or organization if any other additional insured endorsement attached to this policy specifically applies to that person or organization. 6. The insurance afforded herein only applies to the extent permitted by applicable state law, including statutes governing additional insured coverage in the construction industry. 7. The insurance afforded to the additional insured shall not exceed the minimum limits required in the written contract. C. In no event shall the insurance provided to the additional insured exceed the minimum coverage required by the written contract, including but not limited to minimum limits, minimum scope of coverage, or minimum duration of coverage. If a written contract or agreement requires that additional insured status be provided by the use of specified edition dates of the ISO CG2010 and/or CG2037, then the terms of that endorsement are incorporated into this endorsement as respects such additional insured and shall supersede the coverage grant and limitations in Sections A. and B. of this endorsement. In the event that CG2010 and/or CG2037 are required but no edition dates are specified, the 04/13 editions shall apply. D. This insurance is excess to any other insurance, whether primary, excess, contingent or on any other basis, available to the additional insured unless a written contract requires that this insurance be primary or primary and non-contributing. However, this insurance is always excess to other insurance, whether primary, excess, contingent or on any other basis, when the additional insured has been added to the other insurance as an additional insured. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, c onditions, provisions, agreements or limitations of the mentioned Policy, other than as above stated. Kitchell CEM, Inc. GL21A000786/1/2021 67046604 | KITCHELL | 21/22 GL WC PL 5/5 | Abbie Fisher | 3/3/2022 4:07:23 PM (CST) | Page 3 of 7 This certificate cancels and supersedes ALL previously issued certificates. 336 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as policy effective date unless otherwise indicated above. Policy Effective: Policy No.: Endorsement No.: Insured: Premium $ Insurance Company: American Contractors Insurance Co RRG NOTICE OF CANCELLATION, NONRENEWAL OR MATERIAL CHANGE – CERTIFICATE HOLDERS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART The certificate of insurance holders shown in the schedule below have requested that they receive written notice of cancellation, nonrenewal or material change with respect to this policy. If we decide to cancel, nonrenew or make a material change to this policy, we agree to mail or deliver sixty (60) days advance written notice to the certificate of insurance holders shown in the schedule below. However, if we are cancelling or nonrenewing due to nonpayment of premium, we will only provide the certificate of insurance holders shown in the schedule below with ten (10) days advance written notice. The notice of cancellation, nonrenewal or material change will be mailed to the addresses provided to us by the certificate of insurance issuer. Proof of mailing will be considered sufficient proof of our good faith attempt to provide notice of cancellation, nonrenewal or material change to the certificate of insurance holders shown in the schedule below. SCHEDULE All certificate of insurance holders where written notice of cancellation, nonrenewal or material change to this policy is required by written contract, permit or agreement with the Named Insured. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements or limitations of the mentioned Policy, other than as above stated. Kitchell CEM, Inc. GL21A000786/1/2021 67046604 | KITCHELL | 21/22 GL WC PL 5/5 | Abbie Fisher | 3/3/2022 4:07:23 PM (CST) | Page 4 of 7 This certificate cancels and supersedes ALL previously issued certificates. 205 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as policy effective date unless otherwise indicated above. Policy Effective Date: Policy No.: Endorsement No.: Insured: Premium $ Insurance Company: American Contractors Insurance Co RRG WAIVER OF TRANSFER OF RIGHTS OF RECOVERY This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person(s) or Organization(s): Any person or organization for whom you have agreed by written contract to furnish this waiver. The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV – COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or “your work” done under a contract with that person or organization and included in the “products-completed operations hazard”. This waiver applies only to the person or organization shown in the Schedule above. Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements or limitations of the mentioned Policy, other than as above stated. Kitchell CEM, Inc. GL21A000786/1/2021 67046604 | KITCHELL | 21/22 GL WC PL 5/5 | Abbie Fisher | 3/3/2022 4:07:23 PM (CST) | Page 5 of 7 This certificate cancels and supersedes ALL previously issued certificates. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 99 06 01 (Ed. 03-13) NOTICE OF CANCELLATION, NONRENEWAL OR MATERIAL CHANGE ENDORSEMENT In the event of cancellation, nonrenewal or other material change of the policy, we will mail advance notice to the person or organization named in the Schedule. The number of days advance notice is shown in the Schedule. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule 1. Number of days advance notice: 60 days. However, in the case of cancellation or nonrenewal due to nonpayment of premium, only 10 days advance notice will be provided. 2. Notice will be mailed to: All certificate holders where written notice of cancellation, nonrenewal or material change to this policy is required by written contract, permit or agreement with the Named Insured. The notice will be mailed to the addresses provided to us by the certificate of insurance issuer. Proof of mailing will be considered sufficient proof of our good faith attempt to provide written notice. This endorsement is not applicable in the states of Arizona, Connecticut, New Jersey, North Carolina, Texas or Wisconsin. This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as Policy Effective Date unless otherwise indicated above. Policy Effective Date: Policy No. Endorsement No. Premium $ Insured Carrier Name/Code: WC 99 06 01 (Ed. 03-13) Kitchell CEM, Inc. ACIG Insurance Company WCA0000068216/1/2021 67046604 | KITCHELL | 21/22 GL WC PL 5/5 | Abbie Fisher | 3/3/2022 4:07:23 PM (CST) | Page 6 of 7 This certificate cancels and supersedes ALL previously issued certificates. WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 04-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT−CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our 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 * % of the California workers’ compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description Whomever the named insured is required by written contract executed prior to loss to waive rights of recovery against. No Additional Premium to be applied This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as Policy Effective Date unless otherwise indicated above. Policy Effective Date: Policy No. Endorsement No. Premium $ Insured Carrier Name/Code: WC 04 03 06 (Ed. 04-84) Kitchell CEM, Inc. ACIG Insurance Company WCA0000068216/1/2021 67046604 | KITCHELL | 21/22 GL WC PL 5/5 | Abbie Fisher | 3/3/2022 4:07:23 PM (CST) | Page 7 of 7 This certificate cancels and supersedes ALL previously issued certificates. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 3/3/2022 IMA,Inc.-Colorado Division 1705 17th Street,Suite 100 Denver CO 80202 IMA Denver Team 303-534-4567 DenAccountTechs@imacorp.com National Fire Insurance Company of Hartford 20478 KITCORP Kitchell CEM Inc. 2450 Venture Oaks Way Suite 500 Sacramento,CA 95833 1913795992 A 5,000,000 X X X 7014861826 6/1/2021 6/1/2022 A Automobile Physical Damage N N 7014861826 6/1/2021 6/1/2022 Deductibles: Comprehensive Collision $1,000 $1,000 Additional insured,waiver of subrogation,notice of cancellation,primary coverage via endorsement Certificate Holder is included as Additional Insured on the Automobile Liability Policy if required by written contract or agreement and with respect to work performed by Insured subject to the policy terms and conditions.A Waiver of Subrogation is provided in favor of Certificate Holder on the Automobile Liability Policy if required by written contract or agreement and with respect to work performed by Insured subject to the policy terms and conditions.This Insurance is Primary and Non-Contributory on the Automobile Liability Policy subject to the policy terms and conditions. City of Cupertino 10300 Torre Ave Cupertino CA 95014 Business Auto Policy Policy Endorsement ADDITIONAL INSURED - PRIMARY AND NON-CONTRIBUTORY It is understood and agreed that this endorsement amends the BUSINESS AUTO COVERAGE FORM as follows: SCHEDULE Name of Additional Insured Person Or Organization ANY PERSON OR ORGANIZATION THAT YOU ARE REQUIRED BY WRITTEN CONTRACT OR WRITTEN AGREEMENT TO NAME AS AN ADDITIONAL INSURED 1.In conformance with paragraph A.1.c. of Who Is An Insured of Section II - LIABILITY COVERAGE, the person or organization scheduled above is an insured under this policy. 2.The insurance afforded to the additional insured under this policy will apply on a primary and non-contributory basis if you have committed it to be so in a written contract or written agreement executed prior to the date of the “accident” for which the additional insured seeks coverage under this policy. All other terms and conditions of the policy remain unchanged This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy. BUA 7014861826 Endorsement No: 43; Page: 1 of 1 Policy Page: 188 of 197 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA71527XX (10-2012) Endorsement Effective Date: Policy No: Policy Effective Date: 06/01/2021Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Business Auto Policy Policy Endorsement CONTRACTORS EXTENDED COVERAGE ENDORSEMENT - BUSINESS AUTO PLUS I. A. 1. 2. a. b. (1) (2) 3. 4. 1. 2. B. 1. 2. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM LIABILITY COVERAGE Who Is An Insured The following is added to Section II, Paragraph A.1., Who Is An Insured: a. Any incorporated entity of which the Named Insured owns a majority of the voting stock on the date of inception of this Coverage Form; provided that, b. The insurance afforded by this provision A.1. does not apply to any such entity that is an insured under any other liability "policy" providing auto coverage. Any organization you newly acquire or form, other than a limited liability company, partnership or joint venture, and over which you maintain majority ownership interest. The insurance afforded by this provision A.2.: Is effective on the acquisition or formation date, and is afforded only until the end of the policy period of this Coverage Form, or the next anniversary of its inception date, whichever is earlier. Does not apply to: Bodily injury or property damage caused by an accident that occurred before you acquired or formed the organization; or Any such organization that is an insured under any other liability "policy" providing auto coverage. Any person or organization that you are required by a written contract to name as an additional insured is an insured but only with respect to their legal liability for acts or omissions of a person, who qualifies as an insured under SECTION II – WHO IS AN INSURED and for whom Liability Coverage is afforded under this policy. If required by written contract, this insurance will be primary and non-contributory to insurance on which the additional insured is a Named Insured. 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. "Policy", as used in this provision A. Who Is An Insured, includes those policies that were in force on the inception date of this Coverage Form but: Which are no longer in force; or Whose limits have been exhausted. Bail Bonds and Loss of Earnings Section II, Paragraphs A.2. (2) and A.2. (4) are revised as follows: In a.(2), the limit for the cost of bail bonds is changed from $2,000 to $5,000; and In a.(4), the limit for the loss of earnings is changed from $250 to $500 a day. BUA 7014861826 Endorsement No: 41; Page: 1 of 4 Policy Page: 183 of 197 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Policy No: Policy Effective Date: 06/01/2021Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Business Auto Policy Policy Endorsement C. II. A. B. a. b. C. a. D. a. b. c. d. e. (1) (2) E. Fellow Employee Section II, Paragraph B.5 does not apply. Such coverage as is afforded by this provision C. is excess over any other collectible insurance. PHYSICAL DAMAGE COVERAGE Glass Breakage – Hitting A Bird Or Animal – Falling Objects Or Missiles The following is added to Section III, Paragraph A.3.: With respect to any covered auto , any deductible shown in the Declarations will not apply to glass breakage if such glass is repaired, in a manner acceptable to us, rather than replaced. Transportation Expenses Section III, Paragraph A.4.a. is revised, with respect to transportation expense incurred by you, to provide: $60 per day, in lieu of $20; subject to $1,800 maximum, in lieu of $600. Loss of Use Expenses Section III, Paragraph A.4.b. is revised, with respect to loss of use expenses incurred by you, to provide: $1,000 maximum, in lieu of $600. Hired "Autos" The following is added to Section III. Paragraph A.: 5. Hired "Autos" If Physical Damage coverage is provided under this policy, and such coverage does not extend to Hired Autos, then Physical Damage coverage is extended to: Any covered auto you lease, hire, rent or borrow without a driver; and Any covered auto hired or rented by your employee without a driver, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. The most we will pay for any one accident or loss is the actual cash value, cost of repair, cost of replacement or $75,000, whichever is less, minus a $500 deductible for each covered auto. No deductible applies to loss caused by fire or lightning. The physical damage coverage as is provided by this provision is equal to the physical damage coverage(s) provided on your owned autos. Such physical damage coverage for hired autos will: Include loss of use, provided it is the consequence of an accident for which the Named Insured is legally liable, and as a result of which a monetary loss is sustained by the leasing or rental concern. Such coverage as is provided by this provision will be subject to a limit of $750 per accident. Airbag Coverage The following is added to Section III, Paragraph B.3.: The accidental discharge of an airbag shall not be considered mechanical breakdown. BUA 7014861826 Endorsement No: 41; Page: 2 of 4 Policy Page: 184 of 197 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Policy No: Policy Effective Date: 06/01/2021Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Business Auto Policy Policy Endorsement F. c. d. G. a. b. c. d. (1) (2) III. 1. a. b. (1) (2) 2. IV. A. Electronic Equipment Section III, Paragraphs B.4.c and B.4.d. are deleted and replaced by the following: Physical Damage Coverage on a covered auto also applies to loss to any permanently installed electronic equipment including its antennas and other accessories A $100 per occurrence deductible applies to the coverage provided by this provision. Diminution In Value The following is added to Section III, Paragraph B.6.: Subject to the following, the diminution in value exclusion does not apply to: Any covered auto of the private passenger type you lease, hire, rent or borrow, without a driver for a period of 30 days or less, while performing duties related to the conduct of your business; and Any covered auto of the private passenger type hired or rented by your employee without a driver for a period of 30 days or less, under a contract in that individual employee's name, with your permission, while performing duties related to the conduct of your business. Such coverage as is provided by this provision is limited to a diminution in value loss arising directly out of accidental damage and not as a result of the failure to make repairs; faulty or incomplete maintenance or repairs; or the installation of substandard parts. The most we will pay for loss to a covered auto in any one accident is the lesser of: $5,000; or 20% of the auto's actual cash value (ACV). Drive Other Car Coverage – Executive Officers The following is added to Sections II and III: Any auto you don't own, hire or borrow is a covered auto for Liability Coverage while being used by, and for Physical Damage Coverage while in the care, custody or control of, any of your "executive officers", except: An auto owned by that "executive officer" or a member of that person's household; or An auto used by that "executive officer" while working in a business of selling, servicing, repairing or parking autos. Such Liability and/or Physical Damage Coverage as is afforded by this provision. Equal to the greatest of those coverages afforded any covered auto; and Excess over any other collectible insurance. For purposes of this provision, "executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document, and, while a resident of the same household, includes that person's spouse. Such "executive officers" are insureds while using a covered auto described in this provision. BUSINESS AUTO CONDITIONS Duties In The Event Of Accident, Claim, Suit Or Loss The following is added to Section IV, Paragraph A.2.a.: BUA 7014861826 Endorsement No: 41; Page: 3 of 4 Policy Page: 185 of 197 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Policy No: Policy Effective Date: 06/01/2021Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Business Auto Policy Policy Endorsement (4) (6) B. C. D. E. a. V. Your employees may know of an accident or loss. This will not mean that you have such knowledge, unless such accident or loss is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. The following is added to Section IV, Paragraph A.2.b.: Your employees may know of documents received concerning a claim or suit. This will not mean that you have such knowledge, unless receipt of such documents is known to you or if you are not an individual, to any of your executive officers or partners or your insurance manager. Transfer Of Rights Of Recovery Against Others To Us The following is added to Section IV, Paragraph A.5. Transfer Of Rights Of Recovery Against Others To Us: We waive any right of recovery we may have, because of payments we make for injury or damage, against any person or organization for whom or which you are required by written contract or agreement to obtain this waiver from us. This injury or damage must arise out of your activities under a contract with that person or organization. You must agree to that requirement prior to an accident or loss. Concealment, Misrepresentation or Fraud The following is added to Section IV, Paragraph B.2.: Your failure to disclose all hazards existing on the date of inception of this Coverage Form shall not prejudice you with respect to the coverage afforded provided such failure or omission is not intentional. Other Insurance The following is added to Section IV, Paragraph B.5.: Regardless of the provisions of Paragraphs 5.a. and 5.d. above, the coverage provided by this policy shall be on a primary non-contributory basis. This provision is applicable only when required by a written contract. That written contract must have been entered into prior to Accident or Loss . Policy Period, Coverage Territory Section IV, Paragraph B. 7.(5).(a). is revised to provide: 45 days of coverage in lieu of 30 days. DEFINITIONS Section V. paragraph C. is deleted and replaced by the following: Bodily injury means bodily injury, sickness or disease sustained by a person, including mental anguish, mental injury or death resulting from any of these. BUA 7014861826 Endorsement No: 41; Page: 4 of 4 Policy Page: 186 of 197 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA63359XX (04-2012) Endorsement Effective Date: Policy No: Policy Effective Date: 06/01/2021Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Includes copyrighted material of the Insurance Services Office, Inc., used with its permission. Business Auto Policy Policy Endorsement NOTICE OF CANCELLATION TO CERTIFICATEHOLDERS It is understood and agreed that: If you have agreed under written contract to provide notice of cancellation to a party to whom the Agent of Record has issued a Certificate of Insurance, and if we cancel a policy term described on that Certificate of Insurance for any reason other than nonpayment of premium, then notice of cancellation will be provided to such Certificateholders at least 30 days in advance of the date cancellation is effective. If notice is mailed, then proof of mailing to the last known mailing address of the Certificateholder on file with the Agent of Record will be sufficient to prove notice. Any failure by us to notify such persons or organizations will not extend or invalidate such cancellation, or impose any liability or obligation upon us or the Agent of Record. All other terms and conditions of the policy remain unchanged This endorsement, which forms a part of and is for attachment to the policy issued by the designated Insurers, takes effect on the Policy Effective date of said policy at the hour stated in said policy, unless another effective date (the Endorsement Effective Date) is shown below, and expires concurrently with said policy. BUA 7014861826 Endorsement No: 42; Page: 1 of 1 Policy Page: 187 of 197 Underwriting Company: National Fire Insurance Company of Hartford, 151 N Franklin St, Chicago, IL 60606 Form No: CNA68021XX (02-2013) Endorsement Effective Date: Policy No: Policy Effective Date: 06/01/2021Endorsement Expiration Date: © Copyright CNA All Rights Reserved. Kitchell Amendment 1 for Citywide Building Condition Assessment Phase 2 Final Audit Report 2022-12-15 Created:2022-11-09 By:City of Cupertino (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAmjRAqCdsvLfT5rJ96iJU0oPZWowHfv4q "Kitchell Amendment 1 for Citywide Building Condition Assessm ent Phase 2" History Document created by City of Cupertino (webmaster@cupertino.org) 2022-11-09 - 2:04:10 AM GMT- IP address: 35.229.54.2 Document emailed to Julia Kinst (juliak@cupertino.org) for approval 2022-11-09 - 2:06:37 AM GMT Document approved by Julia Kinst (juliak@cupertino.org) Approval Date: 2022-11-09 - 2:15:27 AM GMT - Time Source: server- IP address: 216.198.111.214 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2022-11-09 - 2:15:29 AM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2022-11-09 - 4:39:04 PM GMT - Time Source: server- IP address: 73.170.27.253 Document emailed to wendy@kitchell.com for signature 2022-11-09 - 4:39:07 PM GMT Email viewed by wendy@kitchell.com 2022-11-09 - 4:39:19 PM GMT- IP address: 3.101.152.15 New document URL requested by wendy@kitchell.com 2022-11-30 - 0:42:53 AM GMT- IP address: 216.93.203.251 Email viewed by wendy@kitchell.com 2022-11-30 - 0:44:54 AM GMT- IP address: 54.215.213.243 Email viewed by wendy@kitchell.com 2022-12-15 - 1:21:57 PM GMT- IP address: 104.220.121.60 New document URL requested by wendy@kitchell.com 2022-12-15 - 1:25:52 PM GMT- IP address: 104.220.121.60 Signer wendy@kitchell.com entered name at signing as Wendy Cohen 2022-12-15 - 1:28:02 PM GMT- IP address: 104.220.121.60 Document e-signed by Wendy Cohen (wendy@kitchell.com) Signature Date: 2022-12-15 - 1:28:04 PM GMT - Time Source: server- IP address: 104.220.121.60 Document emailed to christopherj@cupertino.org for signature 2022-12-15 - 1:28:07 PM GMT Email viewed by christopherj@cupertino.org 2022-12-15 - 2:27:42 PM GMT- IP address: 172.225.88.173 Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen 2022-12-15 - 2:28:24 PM GMT- IP address: 136.24.22.194 Document e-signed by Christopher D. Jensen (christopherj@cupertino.org) Signature Date: 2022-12-15 - 2:28:26 PM GMT - Time Source: server- IP address: 136.24.22.194 Document emailed to Matt Morley (mattm@cupertino.org) for signature 2022-12-15 - 2:28:28 PM GMT Email viewed by Matt Morley (mattm@cupertino.org) 2022-12-15 - 8:44:41 PM GMT- IP address: 64.165.34.3 Document e-signed by Matt Morley (mattm@cupertino.org) Signature Date: 2022-12-15 - 8:45:53 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature 2022-12-15 - 8:45:55 PM GMT Email viewed by Kirsten Squarcia (kirstens@cupertino.org) 2022-12-15 - 10:03:29 PM GMT- IP address: 104.28.111.137 Document e-signed by Kirsten Squarcia (kirstens@cupertino.org) Signature Date: 2022-12-15 - 10:17:03 PM GMT - Time Source: server- IP address: 64.165.34.3 Agreement completed. 2022-12-15 - 10:17:03 PM GMT