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20-060 Stormwater Management Facilities Operation and Maintenance Agreement, APN 316-06-061, 316-07-049 RECORDING REQUESTED BY: 24424905 Regina Alcomendras City of Cupertino Santa Clara County - Clerk-Recorder 03/09/2020 12:29 PM WHEN RECORDED,MAIL TO: Titles: 1 Pages: 21 Fees: 10.00 0.00 Taxes: 0 City Clerk's Office Total : yCupertino11 � �s 'I " ��N �'I�LrG�'�'M`NCO, City of 10300 Torre Avenue Cupertino, CA 95014-3255 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) NO FEE IN ACCORDANCE WITH GOV. CODE 27383 STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT Cupertino, CA APN 316-06-061 APN 316-07-049 Ef Original 71 Conformed Copy Space above this line for Recorder's use. STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT APB' 3146 - Or. __ 0(,1 Bt 316 " c-1 04 q This STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT("Agreement")is made and entered into this 20th day of November, 2019,by Apple Inc., a California corporation ("Covenantor") and the City of Cupertino, a municipal corporation ("City"). Covenantor and City are referred to collectively herein as the "Parties" and each individually as a"Party." RECITALS: i This Agreement is made and entered into with reference to the following facts: A. The City is authorized and required to regulate and control the disposition of storm and surface waters as set forth in the City's Stormwater Pollution Prevention and Watershed Protection Ordinance, Ordinance No. 1571, effective October 15, 2003 (as currently in effect and as it may hereafter be amended, the"Ordinance"). B. The Covenantor is the owner of a certain real property more particularly described in Exhibit A attached hereto ("Property"). C. - The Covenantor has constructed certain improvements on the Property that may alter existing stormwater conditions on both the Property and adjacent lands. D. To minimize adverse impacts due to these anticipated changes in existing storm and surface water flow conditions, the Covenantor is required by the City to build and maintain, at Covenantor's expense, stormwater management and trash capture facilities ("Facilities") as more particularly shown in Exhibit B and described in the Stormwater Management Plan prepared by Arup North America Ltd. dated February 5, 2014, which plan, together with any and all -I- amendments, including future amendments, thereto (collectively, the "SWMP"), are on file with the Public Works Department of the City of Cupertino, California, and are hereby incorporated by reference. E. The City has reviewed the SWMP, and subject to execution of this Agreement,has approved the SWMP. AGREEMENT: NOW, THEREFORE, in consideration of the benefits received and to be received by the Covenantor,its successors and assigns,as a result of the City's approval of the SWMP,the Parties hereby agree as follows: 1. Covenants Running With the Land; Property Subject to Agreement. All of the Property shall be subject to this Agreement. The Parties intend that this Agreement shall run with the land, shall be binding on Covenantor,its successors and assigns,and all parties having or acquiring any right, title or interest in the Property or any portion thereof, and their respective successors and assigns, and shall inure to the benefit of the City and its successors and assigns regardless of whether City has any ownership interest in the Property or any portion thereof or any property adjacent thereto. Every limitation, obligation, covenant, condition, and restriction contained herein shall be deemed to be, and shall be construed as a covenant running with the land, and in addition, shall be construed as an equitable servitude, enforceable by any owner of any portion of the Property against any other owner, tenant or occupant of the Property or any portion thereof. Subject to the provisions of Section 10 below, each reference in this Agreement to Covenantor shall mean Covenantor and its successors in interest to the Property or any portion thereof. 2. Responsibility for Installation, Operation and Maintenance. At its sole expense, the I Covenantor shall construct, operate and perpetually maintain the Facilities in strict accordance with: (a)the Ordinance,(b)manufacturer's recommendations where applicable,(c)the SWMP and j any amendments thereto that have been approved by the City, and(d) all other applicable federal, state and local laws, ordinances and regulations. Covenantor,on an annual basis, shall prepare and deliver to the City Public Works Director, a Maintenance Inspection Report in the form attached J hereto as Exhibit C or such other form as may be reasonably required by City from time to time. 1 The annual Maintenance Inspection Report shall identify all completed inspection and maintenance tasks for the reporting period and shall be submitted to the City in order to verify that inspection and maintenance of the Facilities have been conducted as required by this Agreement. The annual report shall be submitted no later than October 15 of each year, beginning in 2019, under penalty of perjury,to the City Public Works Director or such other member of the City staff as directed by the Public Works Director. Covenantor shall provide in the annual report a record of the volume of all accumulated sediment removed as a result of the treatment measure(s). Covenantor shall conduct a minimum of one annual inspection of the Facilities before the rainy season;this inspection shall occur between August 1 st and September 30 each year. More frequent inspections may be required to comply with the maintenance standards. The results of inspections shall be recorded on the Maintenance Inspection Report. 3. Facility Modifications. At its sole expense, the Covenantor shall make such changes or -2- modifications to the Facilities as the City Engineer may reasonably determine to be necessary or desirable to ensure that the Facilities continue to operate as originally designed and approved. Any changes or modifications to the Facilities may be made only with prior written authorization by the City Engineer or his or her designee. 4. Intentionally Omitted. 5. Facility Inspections by the City. At reasonable times, after not less than forty-eight (48) hours' prior written notice, except in the event of an immediate threat to public health and safety in which case no prior notice shall be required, and in a reasonable manner as provided in the Ordinance, the City, its agents, employees, contractors, and consultants shall have a reasonable right of ingress and egress to the Facilities for the purpose of inspecting the Facilities to ensure that the Facilities are being properly maintained,are continuing to perform in an adequate manner (as reasonably determined by the City Engineer or his or her designee), and are in compliance with the Ordinance, the SWMP and any amendments thereto approved by the City and all other applicable laws. Any such inspection by the City shall be at the City's sole risk and expense, subject to Covenantor's security protocols and otherwise consistent with City's standard inspection procedures for similar facilities. 6. No Barriers. While this Agreement is in effect, subject to Section 3 above, Covenantor shall not erect, nor permit to be erected, any building or structure of any kind within the areas where the Facilities are located, nor shall Covenantor fill or excavate within the areas where the i Facilities are located without City's prior written consent which shall not be unreasonably withheld, but may be conditioned upon such requirements as City Engineer determines are reasonably necessary or desirable to ensure proper functioning of the Facilities. 7. Default and Remedies.If,following delivery of written notice from City and the expiration of a thirty (30) day cure period (except in the event of an immediate threat to public health and safety in which case Covenantor shall commence and complete corrective action as soon as possible following receipt of notice from the City), Covenantor fails to correct any defect in the Facilities in accordance with the approved design standards, the SWMP, the Ordinance, and all other applicable state,federal,and local laws,rules,and regulations,or Covenantor otherwise fails to comply with the maintenance and repair obligations set forth in the SWMP and this Agreement, the City shall have the right upon delivery of forty-eight (48) hours' prior written notice (except in the event of an immediate threat to public health and safety in which case no notice shall be required) to enter the Property (at the City's sole risk and expense and subject to Covenantor's security protocols) for the purposes of maintaining and repairing the Facilities at Covenantor's expense, and Covenantor shall be obligated to reimburse City for the cost of all such work, including, without limitation, the cost of City staff time, within thirty (3.0) days following City's delivery of an invoice therefor,together with documentation of City's costs and expenses incurred in connection with the performance of such work. If such costs are not paid within the prescribed time period, the City may assess Covenantor the cost of the work, and said assessment shall be a lien against the Property or may be placed on the property tax bill and collected as ordinary taxes by the City. In addition to the foregoing, the City may pursue any other remedies provided under law or in equity, including without limitation, ex parte applications for temporary restraining -3- orders, preliminary injunctions and permanent injunctions enjoining any such violation or attempted violation or default, an order for specific performance,civil and criminal penalties, and the remedies set forth in Sections 9.18.190, 9.18.230 and 9.18.250 of the Ordinance. All such remedies shall be cumulative and not alternative. 8. Indemnity. The Covenantor shall defend, indemnify,and hold the City and its elected and appointed officers, officials, employees, agents, representatives, contractors, vendors and consultants (all of the foregoing, the "Indemnitees") harmless from and against any and all claims, demands, liabilities, losses, actions, causes of action, suits, judicial or administrative proceedings, damages for personal injury, bodily injury, death and property damage, costs and expenses, including without limitation reasonable attorneys' fees, arbitration fees or costs, and court costs, penalties, deficiencies, fines, orders, and damages (all of the foregoing, "Claims"), arising out of or related to,or alleged to arise out of or be related to,the ownership, operation, use of the Property or the construction, operation, maintenance, or failure to maintain, the Facilities, except to the extent that any such Claim arises from the negligence or willful misconduct of the City or any Indemnitee. Covenantor's indemnity obligations shall apply regardless of whether any City insurance policies,self-insurance or joint self-insurance has been determined to be applicable to such Claims and regardless of whether or not City has prepared, supplied or approved of plans and specifications for the construction, installation, maintenance, repair or replacement of the Facilities. 9. Insurance Requirements. Covenantor shall obtain and produce to the City's satisfaction 1 an insurance certificate and endorsements evidencing compliance with the insurance requirements set forth in Exhibit D. attached hereto. I 10. Obligations and Responsibilities of Covenantor. Initially, the Covenantor named above shall be solely responsible for the performance of the obligations required under this Agreement 1 and for the payment of any and all fees, fines, and penalties associated with such performance or failure to perform under this Agreement. Notwithstanding any provisions of this Agreement to the contrary, upon the recordation of a deed or other instrument of sale, transfer or other conveyance of fee simple title to the Property or any portion thereof(a "Transfer") to a third party,the Covenantor shall be released of its obligations and responsibilities under this Agreement accruing after the date of such Transfer to the extent such obligations and responsibilities are applicable to that portion of the Property included in such Transfer. 11. PropeM Transfer. Nothing herein shall be construed to prohibit a transfer of the Property or any part thereof by the Covenantor to subsequent owners and assigns. 12. Termination and Release of Agreement. In the event that the City determines, in the exercise of its sole discretion, at any future time that the Facilities are no longer required, then it promptly shall so notify the Covenantor or its successors and/or assigns in writing, and at the written request of the Covenantor, the City shall execute a termination and release of this Agreement which the Covenantor shall cause to be recorded in the Official Records at Covenantor's sole expense. -4- 1 13. Miscellaneous. 13.1 Notices. Except as otherwise specified herein, all notices, demands, requests or approvals to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by: (a) personal delivery, in which case notice is effective upon delivery; (b) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt; (c) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (d) postage prepaid registered or certified mail, in which case notice shall be deemed delivered on the second business day after the deposit thereof with the U.S. Postal Service. City: City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 Attention: Public Works Director With copy to: i City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 Attention: City Attorney Covenantor: Apple Inc. One Apple Park Way, MIS 18-REF Cupertino, CA 95014 Attn: Real Estate & Development With a copy to: Apple Inc. One Apple Park Way, MIS 4-D LAW Cupertino, California 95014 Attention: Real Estate Counsel 132 Attorneys' Fees. In the event that either Party institutes legal action or arbitration against the other to interpret or enforce this Agreement,or to obtain damages for any alleged breach hereof,the prevailing Party in such action or arbitration shall be entitled to reasonable attorneys' or arbitrators' fees in addition to all other recoverable costs, expenses and damages. -5- 133 Governing Law; Venue. This Agreement shall, in all respects, be governed, construed, applied, and enforced in accordance with the laws of the State of California without reference to its choice of laws provisions. Any dispute related to the interpretation or enforcement of this Agreement shall be heard in courts having jurisdiction in Santa Clara County, California. 13.4 Further Assurances. City and Covenantor shall each execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be necessary to fully effectuate the terms and provisions of this Agreement. 135 Entire Agreement. This Agreement, together with the SWMP, constitutes the entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior written or oral agreements with respect thereto. 13.6 Severability. In the event any part or provision of this Agreement shall be determined to be invalid or unenforceable under the laws of the State of California, the remaining portions of this Agreement that can be separated from the invalid or,unenforceable provisions shall, nevertheless, continue in full force and effect. 13.7 No Waiver. Any waiver by City of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay by City at any time to require strict performance by Covenantor of any provision of this Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election. 13S Recordation; Amendments. City, at Covenantor's expense, shall cause this Agreement to be recorded in the Official Records of Santa Clara County, California ("Official Records")promptly following execution hereof. This Agreement may be amended in whole or in part only by mutual written agreement. Any such amendment shall be recorded in the Official Records. 139 Relationship of Parties.Neither Covenantor nor any of its contractors,employees or agents shall be deemed to be agents of City in connection with the performance of Covenantor's obligations under this Agreement. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. City neither undertakes nor assumes any responsibility or duty to Covenantor (except as expressly provided in this Agreement) or to any third party with respect to the Facilities. 13.10 Headings; Construction, Statutory References. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. This Agreement is the product of negotiation between the Parties. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against -6- any Party. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. All references in this Agreement to particular statutes, regulations, ordinances or resolutions of the United States, the State of California, or the City of Cupertino shall be deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or renumbered,or if repealed,to such other provisions as may thereafter govern the same subject. The recitals above and exhibits attached hereto are a substantive part of this Agreement and are hereby incorporated herein. 13.11 Permits and Licenses; Compliance with Law. Covenantor, at its expense, shall comply with all applicable legal requirements, including all federal, state, and local laws and regulations (including City ordinances, regulations and resolutions, and requirements of other agencies with jurisdiction), whether or not said laws or regulations are expressly stated in this Agreement, and obtain and maintain all necessary permits and licenses required in order to own, operate and maintain the Facilities. 13.12 Liens. Covenantor shall pay, when due, all persons furnishing labor or materials in connection with any work to be performed by or on behalf of Covenantor related to the Facilities. 13.13 Joint and Several Liability. If Covenantor consists of more than one person or entity, the obligations of such persons and entities shall be joint and several. 13.14 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument. I SIGNATURES ON FOLLOWING PAGES) i -7- IN WITNESS WHEREOF,the Parties have executed this Agreement as of the date first above written. COVENANTOR: Apple Inc., a is corporation By: Name Title: •10. i 4"i es (Notary acknowledgment to be attached) CITY: City of Cupertino, a inicipal corporation By: Name: C840 osti Title: Cl-r,( <N 6-/ Ct2 (Notary acknowledgment to be attached) ATTEST: ({ors(in S va rri ,City Clerk APPROVED AS TO FORM: j �ae� M• '`�• ny� (' ,City Attorney I -8- STATE OF CALIFORNIA ) 13 CAAt-W CP t1CG4� COUNTY OF SANTA CLARA ) On 20, before me, Notary Public, personally appeared ,who proved to me on the basis of sa ' actory evidence to be the person(s) whose name(s) is/are subscribed to the wi rument and acknowledged to me that he/she/they executed the same in his/her/their au a capacity(ies), and that by his/her/their signature(s)on the instrument the person(s),or the upon behalf of which the person(s)acted,executed the instrument. I certify under PENALTY ERJURY under the laws of the State of.California that the foregoing paragraph is true a orrect. WITN my hand and official seal. Signature (Seal) 1 i STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) On 20 before me, Notary Public, personally appeared w roved to me on the basis of satisfactory evidence to be the person(s) whose names) is/a subscribed to the within instrument and acknowledged to me that lie/she/they executed the same in s/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the perso ,or the entity upon behalf of which the person(s)acted,executed the instrument. I certify under PENALT F PERJURY under the laws of the State of California that the foregoing paragraph is true and rrect. WITNESS hand and official seal. Sign re (Seal) + �� e i i I A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County of Santa Clara ) On DGCGYvxbt/ before me, Terencia Tervalon,a Notary Public, personally appeared Kristina Raspe,who proved to me on the basis of satisfactory evidence to be the person whose naive is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. I WITNESS my hand and official seal. ,•,p ,ti TERENCIA TERVALON �' s Notary Public-California Santa Clara County Signature ���/� �.�� (Seal) Commission#2289071 My Comm.Expires May 19,2023 i I I i CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of Santa Clara On Ma r�, --, ?.0 2a before me, Kirsten Squarcia ,Notary Public, (Here insert name and title of the officer) personally appeared X6 L-d S— le e who proved to me on the basis of satisfactory evidence to be the person(Wwhose name(#1s/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity), and that by his/her/their signaturefA on the instrument the personA, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. KIR TEN WITNESS my hand and official seal. Notary Pub Notary Public-Califoo rr SQUARCnia Z Santa Clara County Commission#225732Z My Comm,Expires Oct 4,2022 Signature of Notary Public (Notary Seal) ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California.In such instances,any alternative (Title or description of attached document) acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the (Title or description of attached document continued) document carefully for proper notarial wording and attach this form if required. Number of Pages Document Date • State and County information must be the State and County where the document signer(s)personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s)personally appeared which must also be the same date the acknowledgment is completed. (Additional information) The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title(notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms(i.e. ❑ Individual(s) he/she/they—is/are)or circling the correct forms.Failure to correctly indicate this information may lead to rejection of document recording. ❑ Corporate Officer • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines.If seal impression smudges,re-seal if a (Title) sufficient area permits,otherwise complete a different acknowledgment form. ❑ Partner(s) • Signature of the notary public must match the signature on file with the office of the county clerk. ❑ Attorney-in-Fact Additional information is not required but could help to ensure this ❑ Trustee(s) acknowledgment is not misused or attached to a different document. ❑ Other Indicate title or type of attached document,number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer,indicate the title(i.e.CEO,CFO,Secretary). • Securely attach this document to the signed document C 2004-2015 ProLink Signing Service,Inc.—A➢Rights Reserved www.TheProLink.com—Nationwide Notary Service Exhibit A PROPERTY Real property in the City of Cupertino, County of Santa Clara, State of California, described as follows: PARCEL 1, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED DECEMBER 19, 2014 IN BOOK 879 OF MAPS, PAGES 19 - 25, SANTA CLARA COUNTY RECORDS. EXCEPTING FROM A PORTION OF PARCEL 1, THE UNDERGROUND WATER RIGHTS, WITH NO RIGHT OF SURFACE ENTRY, AS CONVEYED TO CALIFORNIA WATER SERVICE COMPANY, A CALIFORNIA CORPORATION, BY DOCUMENT RECORDED OCTOBER 19, 1981 IN BOOK G400, PAGE 445 OF OFFICIAL RECORDS. APN: 316-06-061 (Affects a portion of Parcel 1) and 316-07-049 (Affects a portion of Parcel 1) I Exhibit B FACILITIES I i i I 00 V N. Wolfe Rd. o� r ( `G m cn � � � W -u rN) > cri V1 N00 W CD J� '+ x �\ T � N CD cn cD CD � �CD -m + 0 McnK rn �-n � v OC, x p w CD s =CD CD —I CD N WCD OWE cWOW 00 P/ 1 CD CD f' n � ! CD cn - I I N� C� i I I 1 ''N i LS 1 ti I Q� MR I m � co-o 00 cn �I CO O I1 C < N� pN) 1 --- W N'p m Q 7 CD cocn ;:r f71 00 Oo t3 I c m CO ». W ; I -1 rF '1 W 1 Ul k 1 -CA) I Cn 01 1 W 0� I Oho-0 (0cn -0 CA) W C') .0 CD N r 'U j W -1 M W m N O -D f Z W cn N LW hr C N. Tantau Ave. 921 i IV. VVUIIC Mu. O m < Fn N O O W cn c* ' O I ((D �� unCO N O N -L D N U) X O ��-* cn W N O m co VW CA) - GJ � _ D co 3 —0 cD co �� / _70 -- .� ,/ O —0At-, (D v CD w ' rn� 00 cn w ' -0 v, `a; 0 ' cn W I N (nW �� �� � � al O O W '�(Q O Q7 ED _CD .Op I Q (j) I N -0 N cD I I � O �\ 0 -4 ) ' � ono ' r I 03 ' rQ NUl� o w-0 —•W N I -0 V �� I Calabazas Creek - 0 --r— o oi�: I COlt� 00� W� 00 t. U) I ( O Oa -0 N) I U) N a N , � O -0 co m N. Tantau Ave. Exhibit C FORM OF MAINTENANCE INSPECTION REPORT 'a m v a a E c a m ° c a a`) m c o � v E c 3 a N a� m a c o m a�i E •N �e ;n v oa N s Is 3 ao °0 c ai O o v o F vu NL oaoa'C N E a' m L O O 'o O L U T 'O O O '� o V L N Cl > L m > G9 E N a C c o E v - N o o c u L v u m a f0 v :o E ? 0) E a c o a m N _ o a v a o o c a � . c E �- s N c ,c m cu s a r z 'N u 0 m E a o a' W ° ` o o o O c ° m a a p a o am o o a v c o w :o E m .E aj D c w w Cp m y o m E o o `° a 0 > m a a o y ° Q o S N v 'o "' Nu N a aiS �' > 'o 3 m a N c .O O = N N a m o ° m ") m m O to m C) N m- w O > C 'O a s s m s- O a s o as m C N r y _^ w m O O a o 'o o a o E m m c n N m L c ^ a o o c o a ` 2 c > o w o t 3 > v Lc O v C C a) 'O a y O ° a m m O a m C N L Lao aC O v o m m ro as u a c '+ c v ^ -^ 3 O C m 'o t�/1 N V N N Y Y m t L N a Ftv3i rG .a O .E 'o > E Q 2 c ro c m E W v `o w N Ul N C C -O Ul m m „ > >• E U m m u `O v c ° j a s N N N N N _O _� Q m N m N m V N m VI N + E N a c a a a c m a m o 'N c .N c o m ao C v o aci v v 'v o ac -o O C C C 4- a > >; m > >: m > >: m > >^ 3 a j, m > a ° C O O Y a O Y a E a � � a a m `) C o L a a o O X E a a 0 0 c a E c v E c v E c o E cai o ° c c o E c 0 w- a LJJ a m a o c c c c 13- m a) o c o v N C c c v c o t ,m, .ac a 30 v N E a y a) t jI m vN C O o m 3 c c v s as +� a Y L a 2 L O O N ^ m O > 3 c o c a N o v o L v Q L o m a m o m s E v c o 0 o E •o m o a E o 'C7 m u m a - 'O a m o y m c m °' E E o o o ° ° m o a 0 c a m o v ° v 'N . a a E o a nn E 3 u m m y -a° N No o c y 4 F m ° ° O O L O O C N a L O ° p �° v C C c a C N a ° C C 'O C m c a = fa+ Y C �a-• C C y.� L m m a O y0 O o a)) a s a C m a a a L E u C a m v E O = a O c a O = m a c • .n N I- a O w a U m a > a Q too w w • a v m 3 m a) v • C N7 N v �O as c O W Y C 4! C m a C c O O • C h E 'o a U +�+ U i m a o a cc a cv, •• N N W > C C C Q N m V ui k.6 n o6 Exhibit D INSURANCE REQUIREMENTS Covenantor shall procure and maintain for the duration of the agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the obligations in this Agreement by Covenantor, its agents, representatives, employees or contractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability(CGL): Insurance Services Office(ISO)Form CG 00 01,or its substantial equivalent, on an "occurrence" basis, including coverage for liability arising from Covenantor's or its contractor's acts or omissions, including bodily injury (including death), property damage, personal and advertising injury, contractual liability, products and completed operations, and damage to leased premises coverage, with limits of at least $2,000,000 per occurrence and$4,000,000 in the aggregate. a Additional Insured coverage under Covenantor's policy shall be "primary" and will not seek contribution from City's insurance/self-insurance, and shall be at least as broad as ISO CG 20 01 04 13 or its substantial equivalent. h The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory 1 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. i 2- Automobile Liability: ISO Form CA 00 01,or its substantial equivalent,covering all owned, non-owned and hired vehicles, with limit 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 accident for bodily injury or disease, or as otherwise required by statute. If a contractor is self-insured, it must provide a_Certificate of Permission to Self-Insure, duly authorized by the DIR. ❑ N/A if box checked(Contractor provides written verification it has no employees). 4. Professional Liability for any design or engineering or other professional work under this agreement with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 aggregate. Covenantor may satisfy this requirement by requiring any contractor performing such design,engineering or other professional work to maintain such insurance. 5. Builder's Risk. If, and only if, Covenantor is performing construction, Course of Construction insurance utilizing an "All Risk" (Special Perils) coverage form or its substantial equivalent, with limits equal to the completed value of the work and no coinsurance penalty provisions. OTHER INSURANCE PROVISIONS The insurance policies are to contain,or be endorsed to contain, the following provisions: Additional Insured Status The City of Cupertino,its City Council,officers,officials,employees,agents,servants and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of the work under this agreement, including materials,parts,or equipment furnished.Endorsement of CGL coverage shall be at least as broad CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 as applicable. Primary Coverage For any claims related to this agreement, Covenantor's insurance coverage shall be"primary"and at least as broad as ISO CG 20 01 04 13 with respect to City, its officers, officials, employees and volunteers, and shall not seek contribution from City's insurance. If the limits of insurance are satisfied in part by Umbrella/Excess Insurance, the Umbrella/Excess Insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a "primary and non- contributory"basis for the benefit of City. Notice of Cancellation Each insurance policy required shall provide that coverage shall not be canceled except on thirty(30) days-notice. Covenantor shall provide thirty(30)day notice of such cancellation to the City. In the event of cancellation, Covenantor shall promptly replace such insurance so no lapse in coverage occurs. Waiver of Subrogation Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City. Covenantor agrees to waive rights of subrogation which any insurer of Covenantor may acquire from Covenantor by virtue of the payment of any loss. Covenantor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by Covenantor, its employees, agents and subcontractors. Acceptability of Insurers Insurance must be issued by insurers authorized to do business in the State of California, and each insurer must have an A.M. Best's financial strength rating of"A"or better and a financial size rating of"V I I"or better. Verification of Coverage Contractor shall furnish the City with original certificates evidencing coverage required by this contract. All certificates are to be received and approved by the City before work commences. Subcontractors Covenantor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Covenantor shall ensure that City is an additional insured on the CGL insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13. Special Risks or Circumstances City reserves the right to modify these requirements,based on the nature of the risk,prior experience, insurer,coverage, or other circumstances. Self-Insurance So long as Covenantor maintains an audited net worth of$100,000,000, Covenantor may satisfy the insurance requirements in this Exhibit D through a program of self-insurance, self-insured retentions and/or deductibles; provided that Covenantor shall be responsible for losses or liabilities, including the provision of a defense, that would have been covered by a third-party insurer but for Covenantor's decision to self-insure such losses or liabilities. Covenantor shall be responsible for payment of all self-insured retentions or deductibles under such insurance. I