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14-051 Consultant services, Sustainability Too OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVENUE CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3223• FAX: (408)777-3366 WEBSITE:www.cupiartino.org CUPERTINO April 1,2014 Sustainability Too Richard Gertman 145 South 171h Street San Jose, CA 95112 Re: Agreement for consultant services Enclosed for your records is a fully executed original copy of the agreement with the City of Cupertino. If you have any questions, please contact the Public Works Department at (408) 777-3354. Sincerely, Andrea Sanders Senior Office Assistant City Clerk's Office Enclosure cc: Public Works AGREEMENT BETWEEN THE CITY OF CUPERTINO CUPERTINO AND FOR CONSULTANT SERVICES FOR Q� RICHARD GERTMAN, FOR SUSTAINABILITY TOO / THIS AGREEMENT, for reference dated February 11, 2014, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and Richard Gertman, dba For Sustainability Too (a sole proprietor) whose address is 145 South 17th Street, San Jose, CA 95112 (',hereinafter referred to as "Consultant"), and is made with reference to the following: RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. Consultant is specially trained; experienced and competent to perform the special services which will be required by this Agreement; and C. Consultant possesses the skill, experience,ability,background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. _ D. City and Consultant desire to enter into an agreement for upon the tenors and conditions herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The term of this Agreement shall commence on February 11, 2014, and shall terminate on June 30, 2014, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED: Consultant shall perform professional services as necessary to assist the City of Cupertino in evaluating the performance of a contractor under a Garbage and Recycling Franchise Agreement Consultant shall further perform professional services necessary to assist the City as it considers garbage rates and negotiates an agreement for future services. Consultant's services, include but are not limited to, the services set forth in Exhibit "A" which is attached hereto and incorporated herein by this reference. 1 3. COMPENSATION TO CONSULTANT: Consultant shall be compensated for services performed pursuant to this Agreement in an amount not to exceed that which is set forth in Exhibit "A" ($12,600.00) which is attached hereto and incorporated herein by this reference. Payment shall be made by checks drawn on the treasury of the City, to be taken from the 520-8003-7106 fund. 4. TIME IS OF THE ESSENCE: Consultant and City agree that time is of the essence regarding the performance of this Agreement. 5. STANDARD OF CARE: Consultant agrees to perform all services hereunder in a manner commensurate with a specially trained professional in the Sari Francisco Bay Area and agrees that all services shall be performed by similarly qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 6. INDEPENDENT PARTIES: City and Consultant intend that the relationship between them created by this Agreement is that of an independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 6. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Consultant. 7. NON-DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer/employee conduct, Consultant agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, :marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Consultant agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 2 8. HOLD HARMLESS: Indemnification: Consultant shall, to the fullest extent .allowed by law, with respect to all services perforined in connection with the .Agreement, indemnify, defend, and hold hannless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any mature, whether physical, emotional, consequential or otherwise, arising; out, pertaining to, or related to the performance of this Agreement by Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. 9. INSURANCE: On or before the connnencement of the term of this Agreement, Consultant shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 9A, B, C, D and E. Such certificates, which do not limit Consultant's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, Attention: City Manager." It is agreed that Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Consultant shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence $1,000,000 aggregate - all other Property Damage: $100,000'each occurrence $250,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of$1,000,000 will be considered equivalent to the required minimum limits shown above. 3 (3) Automotive: Comprehensive automotive liability coverage in the following minimum limits: Bodily Injury: 11)500,000 each occurrence Property Damage: S100,000 each occurrence or Combined Single Limit: $500,000 each occurrence (4) Professional Liability: Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount of at least $1,000,000. B. SUBROGATION WAIVER: Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and commissions, officers, employees and volunteers shall be named as an additional insured under all insurance coverages, except any professional liability insurance, if required'by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable fbr any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. 10. CONFLICT OF INTEREST: Consultant warrants that it is not a conflict of interest for Consultant to perform the services required by this Agreement. Consultant may be required to fill out a conflict of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Re;;ulations. 4 11. PROHIBITION AGAINST TRANSFERS: 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 without said consent shall be null and void, and any assignee, sub lessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Consultant from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished i:o City by Consultant. The sale, assignment, transfer or other,disposition of any of the issued and outstanding capital stock of Consultant; or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or co-tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 12. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names and resumes are attached to this Agreement shall be used in the performance of this Agreement. In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general, automobile and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 13. PERMITS AND LICENSES: Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses including, but not limited to, a City Business License, that may be required in connection with the performance of services hereunder. 14. REPORTS: A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of City. Consultant shall not copyright any Report required by this Agreement and shall execute ,appropriate documents to assign to City the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of City, and all publication rights are reserved to City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. B. All Reports prepared by Consultant may be used by City in execution or implementation of: (1) The original Project for which Consultant was hired; (2) Completion of the original Project by others; (3) Subsequent additions to the original project; and/or (4) Other City projects as appropriate. C. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be printed on recycled paper. All Reports shall be copied on both sides of the paper except for one original, which shall be single sided. E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. 15. RECORDS: Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the perfornance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of City or its designee's at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained fora period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's'preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a.failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Consultant shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. . 16. NOTICES: All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit-thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Consultant to City shall be addressed to City at: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: JCheri Donnelly, Environmental Programs Manager All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: Richard Gertman For Sustainability Too 145 South 17th Street San Jose, CA 95112 6 17. TERMINATION: In the event Consultant fails or refuses to perform any of the provisions Hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If such default is not cured within the time specified after receipt by Consultant from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Consultant written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon tenmination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 18. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. 19. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. 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) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 20. ADVERTISEMENT: Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 21. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 22. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof Any modification of this Agreement will be effective only by written e),.:ecution signed by both City and Consultant. 22. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall 7 City of Cupertino Scope of Work Franchise Agreement Assistance Richard Gertman, doing business as For Sustainability Too, will assist the City of Cupertino with evaluation of the performance under an existing Franchise Agreement for Collection of Garbage, Rec:yclables and Organics; consideration of the rates charged for services; negotiation of an agreement and/or evaluate methods for selection of contractor for future services. Tasks to be performed include: Task 1. Meetings Richard will participate in meetings with City Staff to discuss the Franchise Agreement and future needs. Richard will meet with City and current contractor (Recology) to discuss the performance under the contact, City's future needs, the terms and conditions of possible contract extension. Task 2. Review Documents Richard will review the details of the current Franchise Agreement; correspondence between the City and Recology; and other documents that may relate to performance under the current agreement and/or to assess the City's future needs. Task 3. Research Richard will research details of Recology'; expanded organics diversion program, and the potential need for a rate adjustment to cover the increased costs. Richard will research details of Recology's performance measures, including total tonnage diversion and progress in achieving the 75% diversion from landfill goal. 9 Final Report 4 $720.00 Totals 70 $12,600.00 11 COMMERCIAL GENERAL LIABILITY POLICY NUMBER: 680-9D27916A-14 ISSUE DATE: 03-07-2014 THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER 01 RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE i Name of Person or Organization: THE CITY OF CUPERTINO ATTN CITY MANAGER 10300 TORRE AVE CUPERTINO, CA 95014 (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) The TRANSFER OF RIGHTS OF RECOVERY damage arising out of your ongoing operations or AGAINST OTHERS TO US Condition (Section IV- "your work" done under a contract with that person COMMERCIAL GENERAL LIABILITY CONDI- or organization and included in the "products- TiONS) is amended by the addition of the following: completed operations hazards." This waiver applies We waive any right of recovery we may have against only to the person or organization shown in the 1 the .person or organization shown in the Schedule Schedule above. above because of payments we make for injury or I� I 1 1 1 i CG 24 04 10 93 Copyright, Insurance Services Office, Inc., 1992 Page 1 of 1 l i i CERTIFICATE OF LIABILITY INSURANCE 0DATE 3/07/2014 YYY) 03/07/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S).AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies) must be endorsed. If SUBROGATION is WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER (:ONTACT NAME: INSURANCE BY ALLIED BROKERS PHONE FAX -(A/C,No,Ezt): 888 661-3938 A/C,No): 877 552-6091 630 COWPER STREET E-MAIL PALO ALTO,CA 94301 _ADDRESS:Service.centeratravelers.com 888 661-3938 E!RODUCER ( ) (:USTOMER ID#: 2603Y3180 XV496 882 INSURER(S)AFFORDING COVERAGE I NAIC# INSURED INSURER A:TRAVELERS-CASUALTY INSURANCE COMPANY OF AMERICA GERTMAN,RICHARD INSURER B: 145 S 17TH ST INSURER C: SAN JOSE,CA 95112 INSURER D: 114SURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 715362937471660 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN'IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER MM/DD/YYYY MM/DD/YYYY LIMITS A GENERAL LIABIITY X X 680-9D27916A-14 01/08/2014 01/08/2015 EACH OCCURRENCE $1,000000 X COMMERCIAL GENERAL LIABILITY -DAMAGE TO RENTED CLAIMS-MADE FX�OCCUR PREMISES(Ea occurrence) $300,000 MED EXP(Any one person) $5,000 PERSONAL&ADV INJURY $1,000,000 GENERAL AGGREGATE 52,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: .PRODUCTS-COMP/OP AGG $2,000,000 PRO- X]POLICY JECT LOC _ $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT S(Ea accident) ANY AUTO BODILY INJURY(Per person) $ ALL OWNED AUTOS BODILY INJURY(Per accident) $ SCHEDULED AUTOS HIRED AUTOS (Per aced t)AMAGE $ NON-OWNED AUTOS 5 $ UMBRELLALIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB HCLAIMS-MADE AGGREGATE $ DEDUCTIBLE $ RETENTION $ WORKERS COMPENSATION N/A I TORY ST - WORKERS ITS OT AND EMPLOYERS'LIABILITY Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE ❑ E.L.EACH ACCIDENT 5 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ If yes,describe under SPECIAL PROVISIONS below E.L.DISEASE-POLICY LIMIT $ DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach,ACORD 101,Additional Remarks Schedule,if more space is required) AS RESPECTS TO GENERAL LIABILITY,THE CITY OF CUPERTINO,ITS CITY COUNCIL,BOARDS,AND COMMISSIONS, OFFICERS, EMPLOYEES AND VOLUNTEERS ARE ADDITIONAL INSURED-BLANKET ADDL INSD-OWNERS/LESSEES/CONTR, CG D1 05,BUT ONLY AS RESPECTS TO WORK PERFORMED BY THE INSURED. AS RESPECTS TO GENERAL LIABILITY, SUBROGATION AGAINST THE CITY OF CUPERTINO HAS BEEN WAIVED PER CG 24 04(SEE ATTACHED) CERTIFICATE HOLDER CANCELLATION THE CITY OF CUPERTINO, SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE ATTN CITY MANAGER EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE 10300 TORRE AVE WITH THE POLICY PROVISIONS. CUPERTINO,CA 95014 AIJI'HORIZED REPRESENTATIVE �I/= / � • ��r'� ©1988-2009 ACORD CORPORATION.All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE ID ART PROVISIONS: 1. WHO IS AN INSURED (SECTION II) is amended in a written contract for this insurance to to include as an insured any person or organiza- apply on a primary or contributory basis. tion (called hereafter "additional insured") whom :3. This insurance does not apply: you have agreed in a written contract, executed p y prior to loss, to name as additional insured, but a. on any basis to any pee rson or organization only with respect to liability arising out of "your for whom you have purchased an Owners work" or your ongoing operations for that addi- and Contractors Protective policy. tional insured performed by you or for you. b. to "bodily injury," "property damage," "per- 2. With respect to the insurance afforded to Addi- sonal injury," or "advertising injury" arising tional Insureds the following conditions apply: out of the rendering of or the failure to render a. Limits of Insurance — The following limits of any professional services by or for you, in- eluding: liability apply: 1. The preparing, approving or failing to 1. The limits which you agreed to provide; prepare or approve maps, drawings, or opinions, reports, surveys, change or- 2. The limits shown on the declarations, ders, designs or specifications; and whichever is less. 2. Supervisory, inspection or engineering b. This insurance is excess over any valid and services. collectible insurance unless you have agreed CG D1 05 04 94 Copyright, The Travelers IndE!mnity Company, 1994. Page 1 of 1 Includes Copyrighted Material from Insurance Services Office, Inc. COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. OTHER INSURANCE - ADDITIONAL INSUREDS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PROVISIONS b. The "personal injury" or"advertising injury"for COMMERCIAL GENERAL LIABILITY CONDITIONS which coverage is sought arises out of an of- (Section IV), Paragraph 4. (Other Insurance), is fense committed amended as follows: subsequent to the signing and execution of that 1. The following is added to Paragraph a. Primary contract or agreement by you. Insurance: 2. The first Subparagraph (2) of Paragraph b. Ex- However, if you specifically agree in a written con- cess Insurance regarding any other primary in- tract or written agreement that the insurance pro- surance available to you is deleted. vided to an additional insured under this 3. The following is added to Paragraph b. Excess Coverage Part must apply on a primary basis, or Insurance, as an additional subparagraph under a primary and non-contributory basis, this insur- Subparagraph (1): ance is primary to other insurance that is avail- That is available to the insured when the insured able to such additional insured which covers such is added as an additional insured under any other additional insured as a named insured, and we policy, including any umbrella or excess policy. will not share with that other insurance, provided that: a. The "bodily injury" or "property damage" for which coverage is sought occurs; and CG DO 37 04 05 Copyright 2005 The St. Paul Travelers Companies, Inc. All rights reserved. Page 1 of 1 be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein'. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 23. CAPTIONS: The captions 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. IN WITNESS WHEREOF, the parties,have caused the Agreement to be executed. CONSULTANT CITY OF CUPERTINO A Municipal Corporation Richard Gertman O" By / �� llfi/ � By Title Principal - Title Environmental Programs Ma alter Date 2 III `� Date RECOMMENDED FOR APPROVAL: i' Title APPROVED AS TO FORM: City Attorney ATTEST: 6ty Clerk Mat +b �XCPEQ41 4 12 ,`00 8 a o 3 - 7103 8